June 13, 2021 UEX Corporation North Vancouver, BC V7H 2W9 Attention: Roger Lemaitre
Exhibit 99.2
June 13,
2021
UEX
Corporation
0000 Xxxxxx
Xxxxx
Xxxxx
Xxxxxxxxx, XX X0X 0X0
Attention:
Xxxxx Xxxxxxxx
Re:
Financing
for the acquisition of all of the shares of JCU (Canada)
Exploration Company, Limited (“JCU”) and the immediate
re-sale of 50% of such shares
This letter of
agreement (“Letter
Agreement”) set outs the terms of a transaction (the
“Transaction”)
pursuant to which Xxxxxxx Mines Corp. (“Xxxxxxx”) agrees to (i) finance
the acquisition (the “JCU
Acquisition”) by UEX Corporation (“UEX”) of all of the issued and
outstanding common shares of JCU (the “JCU Shares”) pursuant to a
purchase and sale agreement dated April 22, 2021, as amended (the
“OURD
Agreement”) with Overseas Uranium Resources
Development Co., Ltd. (“OURD”) and (ii) immediately
thereafter acquire 50% of such JCU Shares from UEX. Xxxxxxx and UEX
are collectively referred to in this Letter Agreement as the
“Parties”.
1.
Financing
Transaction
Xxxxxxx agrees to
make available to UEX a term loan in the amount of the Purchase
Price (as defined under the OURD Agreement, as the same may be
amended) to a maximum amount of up to
$41,000,000, to
be applied by UEX in financing its acquisition of all of the JCU
Shares pursuant to the OURD Agreement (the “Loan”).
The Loan will be
available to UEX in one advance following:
(a)
receipt by Xxxxxxx of a copy
of this Letter Agreement duly executed by UEX;
(b)
confirmation satisfactory to
Xxxxxxx that all conditions to the completion of the JCU
Acquisition, other than payment of the Purchase Price, have been
satisfied;
(c)
delivery of all of the share
certificates representing the JCU Shares into an escrow arrangement
satisfactory to Xxxxxxx;
(d)
execution by UEX of a share
pledge agreement (the “Pledge
Agreement”) in favour of Xxxxxxx in respect of all of
the JCU Shares owned by UEX (the “Pledged Shares”) and delivery to
Xxxxxxx (forthwith upon completion of the acquisition by UEX of the
JCU Shares) of the share certificates representing the Pledged
Shares and executed undated blank stock powers in respect of the
same from UEX; and
(e)
receipt by Xxxxxxx of a
direction to pay executed by UEX directing payment by Xxxxxxx of
all of the proceeds of the advance of the Loan directly to OURD or
as may otherwise be provided for under the OURD Agreement
(including the escrow and withholding tax provisions).
The total
outstanding amount of the Loan shall be repaid in full on the date
falling 90 days after the advance thereof (such date, the
“Initial Maturity
Date”), unless UEX requests at least three business
days prior to the Initial Maturity Date that Xxxxxxx extend the
maturity of the Loan, in which case the Loan shall be repaid in
full on the date falling no more 180 days after the advance
thereof.
If the Loan is
repaid in full on the Initial Maturity Date, the Loan shall bear no
interest. If however any principal amount of the Loan remains
outstanding at any time after the Initial Maturity Date, such
outstanding amount of the Loan shall bear interest at a rate equal
to four per cent (4.0%) per annum commencing from the date of the
initial advance of the Loan until the date on which such principal
amount
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is repaid.
Accrued interest under the Loan shall only be payable on maturity
of the Loan or otherwise on the date that all of the Loan
obligations under this Letter Agreement may otherwise become due
and payable in accordance with the terms and conditions of this
Letter Agreement.
Any outstanding
principal amounts under the Loan may be prepaid in whole or in part
(together with all accrued interest thereon, if any) at any time at
the option of UEX without any premium or penalty, including in
connection with satisfaction of the Xxxxxxx Purchase Price (as
defined below).
All payments due
and payable by UEX to Xxxxxxx in respect of the Loan shall be made
in immediately available funds, without any set-off, deduction or
withholding of any nature whatsoever.
For so long as
any of its obligations under the Loan remain outstanding to
Xxxxxxx, UEX shall:
(a)
pay all amounts owing under
the Loan when due;
(b)
perform, fulfil and satisfy
all other obligations of it in respect of the Loan;
(c)
notify Xxxxxxx of any Event
of Default (as defined below) promptly upon becoming aware of such
Event of Default;
(d)
comply in all material
respects with all laws and orders of any governmental authority
applicable to it or its property, including all securities laws and
any regulatory or legal requirements in respect of disclosure of
information;
(e)
other than pursuant to the
Pledge Agreement or as contemplated in this Letter Agreement, not
sell, lease, license, transfer, assign or otherwise dispose of (nor
permit the expropriation, condemnation, destruction or other loss
of) all or any part of its interest in JCU or the Pledged
Shares;
(f)
not create, incur, assume or
permit to exist any mortgage, deed of trust, lien (statutory or
otherwise), deemed trust, pledge, hypothec, hypothecation,
encumbrance, charge, security interest, royalty interest, adverse
claim, defect of title, right of set off in or any other
arrangement having the effect of providing security on or over any
of its interests in the Pledged Shares (other than pursuant to the
Pledge Agreement);
(g)
not merge into or amalgamate
or consolidate with any other person if such arrangement would
negatively impact, invalidate, cancel or otherwise obviate any of
its obligations under this Letter Agreement and provided that any
merged, amalgamated or continuing corporation provides written
confirmation satisfactory to Xxxxxxx, acting reasonably, that it is
liable for the obligations of UEX under this Letter Agreement and
the Pledge Agreement; and
(h)
not amend or change its
constating documents or by-laws in a manner that would materially
adversely affect Xxxxxxx or Xxxxxxx’x interest in the Pledged
Shares or under this Letter Agreement or the Pledge
Agreement.
UEX shall, upon
the request of Xxxxxxx, duly execute and deliver or cause to be
duly executed and delivered to Xxxxxxx such further instruments and
do and cause to be done such further acts as may be necessary or
proper in the reasonable opinion of Xxxxxxx to carry out more
effectually the provisions and purposes of this Letter Agreement as
its relates to the Loan.
2.
Events of
Default
If any of the
following events (each of which constitutes an “Event of Default”) shall occur and
be continuing:
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(a)
UEX does not pay within three
business days of the due date the principal amount (and any
interest if applicable) payable by it under the Loan;
(b)
UEX fails to consummate the
sale of 50% of the JCU Shares to Xxxxxxx forthwith after the
Closing of the JCU Acquisition;
(c)
UEX fails to comply with any
other provision of this Letter Agreement as its relates to the Loan
under Section 1 and if such non-compliance is capable of remedy
within 15 business days, UEX does not remedy the same within 15
business days of being required to do so by Xxxxxxx;
(d)
the institution by UEX of
proceedings to be adjudicated a bankrupt or any similar proceedings
or the seeking by it of relief under any applicable federal,
provincial, state or other law relating to bankruptcy or relief of
debtors, or the filing by it of any such petition or to the
appointment under any such law of a receiver, receiver-manager,
liquidator, assignee, trustee or other similar official of UEX of
all or substantially all of its property, or the making by it of a
general assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as
they become due;
(e)
any proceedings are commenced
by a person for the bankruptcy or any similar proceedings of UEX,
unless the same is being contested actively and diligently in good
faith by appropriate and timely proceedings and is dismissed,
vacated or stayed within thirty (30) days of institution thereof;
or
(f)
the entry of a decree or
order by a court having jurisdiction adjudging UEX bankrupt or
approving as properly filed an application or a petition seeking
bankruptcy in respect of UEX under any applicable law relating to
bankruptcy or relief of debtors, or appointing under any such law a
receiver, receiver-manager, liquidator, assignee, trustee or other
similar official of UEX of all or substantially all of its
property, unless the same is being contested actively and
diligently in good faith by appropriate and timely proceedings and
is dismissed, vacated or stayed within thirty (30) days of
institution thereof,
then Xxxxxxx may
at any time thereafter by notice to UEX declare that the total
amount of the Loan and all other amounts payable thereunder are
immediately due and payable, the Loan shall thereupon terminate and
Xxxxxxx may pursue any rights it may have against UEX under the
Pledge Agreement, it being understood and agreed that, following
the completion of the JCU Acquisition, Xxxxxxx’x sole
recourse against UEX shall be against the Pledged Shares pursuant
to the Pledge Agreement and Xxxxxxx shall have no claim against the
assets of UEX as a whole or any assets other than the Pledged
Shares.
3.
Acquisition
Transaction
UEX hereby agrees
to sell, assign and transfer to Xxxxxxx and Xxxxxxx hereby agrees
to purchase from UEX, forthwith after the closing of the JCU
Acquisition (the “Closing”), 50% of the JCU Shares
free and clear of all encumbrances, for the Xxxxxxx Purchase Price
(as defined below), in accordance with and subject to the terms and
conditions set forth in this Letter Agreement.
The purchase
price (the “Xxxxxxx Purchase
Price”) for 50% of the JCU Shares shall be the sum of
50% of the Purchase Price. The Xxxxxxx Purchase Price will be paid
by way of set-off against the Loan, whereby Xxxxxxx will apply an
amount of the Xxxxxxx Purchase Price against the outstanding
balance of the Loan and thereby reduce the total principal amount
of the Loan by such amount. Upon such application, UEX will be
deemed to have repaid and redeemed the applicable principal amount
of the Loan in consideration for the sale, assignment and transfer
to Xxxxxxx of 50% of the JCU Shares.
If UEX determines
in its sole discretion not to borrow the Loan and decides to
finance the consideration payable pursuant to the JCU Acquisition
by other means, then the Xxxxxxx Purchase Price will be paid
by
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Xxxxxxx to or as
may be directed by UEX at the Closing and the provisions in this
Letter Agreement pertaining to the Loan shall be of no force or
effect.
UEX covenants and
agrees to assign forthwith after the Closing, to the extent it is
legally entitled to do so, 50% of its rights for indemnification
under the OURD Agreement to Xxxxxxx, so that Xxxxxxx will have the
benefit of the representations and warranties provided by OURD
under the OURD Agreement and may assert any claims for a breach of
such representations and warranties directly against OURD on its
own behalf. In the event that such rights are not assigned or
assignable by UEX to Xxxxxxx, UEX covenants and agrees to indemnify
and hold Xxxxxxx harmless from any losses that Xxxxxxx may suffer
(directly or indirectly) to the extent of 50% of UEX’s net
recovery as a result of a breach by OURD of a representation or
warranty given by OURD in favour of UEX under the OURD
Agreement.
4.
Representations,
Warranties & Survival
The Parties
hereby make the representations and warranties set out in Schedule
A.
The
representations and warranties shall survive the Closing and the
payment of the Xxxxxxx Purchase Price and, notwithstanding the
Closing and the payment of the Xxxxxxx Purchase Price, and
notwithstanding the waiver of any condition hereunder, the
representations, warranties, covenants and agreements of the
Parties herein shall (except where otherwise specifically provided
in this Letter Agreement) survive the Closing and shall continue in
full force and effect indefinitely.
5.
Shareholders
Agreement
Forthwith after
the Closing, Xxxxxxx, UEX and JCU will enter into a
shareholders’ agreement governing the relationship of Xxxxxxx
and UEX with respect to the management of JCU (the
“Shareholders’
Agreement”). The Shareholders’ Agreement shall
include the principal terms set forth in Schedule B
hereto.
6.
Certain
Conditions Precedent to Completion of the Transaction
In addition to
the other terms set forth in this Letter Agreement, completion of
the Transaction will be subject to a number of conditions
precedent, including:
(a)
completion by Xxxxxxx of the
Due Diligence Investigations (as defined below) satisfactory to
Xxxxxxx in its sole discretion, acting reasonably;
(b)
the accuracy of the
representations and warranties of the Parties on Closing of the
Transaction, including the representations and warranties set out
in Schedule A hereto;
(c)
the entering into the
Shareholders’ Agreement (provided, however, that if the
Parties are unable to settle the terms of a Shareholders’
Agreement, the Transaction will be completed and the relationship
of the Parties with respect to the management of JCU will be
subject to the terms set out in Schedule B hereto);
and
(d)
such other conditions as are
customarily used for transactions of this nature.
7.
Due
Diligence
UEX will provide
to Xxxxxxx and its directors, officers, employees and agents,
including its legal counsel, accountants and financial advisors
with timely access to all information required to permit Xxxxxxx to
conduct a due diligence investigation of the enforceability,
effectiveness and closing conditions of the OURD Agreement and the
rights and authority of UEX to enter into and effect this Letter
Agreement (the “Due Diligence
Investigations”). Xxxxxxx will be permitted to conduct
all such due diligence in relation to the foregoing that it may
reasonably require, and in that regard, UEX will make available to
Xxxxxxx, on a timely basis, all information necessary in order for
Xxxxxxx to complete such Due Diligence
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Investigations,
including but not limited to all applicable documents, records,
correspondence, books, statements, agreements, resolutions and
other information.
8.
Effect of
this Letter
The Parties
acknowledge and confirm that the obligations set forth herein,
which for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, are and shall remain
legally binding on the Parties subject to Section 14.
Except as and to
the extent required by law, (a) no Party shall disclose or permit
its agents, directors, officers, employees, consultants,
representatives or advisers (“Representatives”) to disclose any
Confidential Information (as defined below) of another Party
hereto, and (b) no Party shall use, or permit its Representatives
to use, any Confidential Information of another Party hereto other
than in connection with the Transaction. For purposes of this
Section 9, “Confidential Information” means
all information about a Party or its subsidiaries or affiliates or
their respective businesses, in whatever form communicated or
maintained, that such party (the “Disclosing Party”) has previously
disclosed or discloses to, or that is gathered by inspection by,
another Party or any of its Representatives (the
“Receiving
Party”); provided that “Confidential Information” does not
include any information that (i) is or becomes generally available
to the public other than as a result of a disclosure by the
Receiving Party in breach of its obligations under this provision,
(ii) is or was received by the Receiving Party, on a non-
confidential basis from a source other than the Disclosing Party if
such source is not prohibited by the Disclosing Party from
disclosing the information to the Receiving Party, or (iii) was
known by the Receiving Party prior to disclosure under this
provision and was not subject to any confidentiality obligation on
the part of the Receiving Party.
Notwithstanding
the provisions hereof, the Receiving Party and its Representatives
may disclose Confidential Information if and to the extent required
or compelled by applicable law, regulation, or legal process
(including by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or
other process) or in any governmental, administrative or judicial
process including, without limitation, pursuant to a rule,
regulation, subpoena, civil investigative demand or similar process
having force of law, or under the rules of any securities exchange
on which the Receiving Party’s securities are
traded.
10.
Announcements
The Parties agree
that this Letter Agreement and the terms of the Transaction
contemplated herein shall be disclosed in a press release to be
issued by each of Xxxxxxx and UEX on or after the date hereof. The
Parties further agree that concurrently with the execution of this
Letter Agreement, the existence and material terms hereof will be
disclosed to OURD.
No Party will
make any other public statement or give any press release
concerning the matters contemplated herein or about the existence
of this Letter Agreement without the written consent of the other
Party, which consent will not be unreasonably withheld. A Party
wishing to make a public announcement shall give the other Party
two (2) days to comment upon and suggest changes to the public
announcement unless the Party is obligated to make the public
announcement in less than two (2) days in order to comply with
applicable securities laws or stock exchange rules, regulations or
policies.
In the event that
the OURD Agreement is terminated or the JCU Acquisition is not
completed, Xxxxxxx and UEX covenant and agree that if either Party
wishes to make another offer to any of JCU, OURD or OURD’s
shareholders to complete a similar acquisition (each, and
“Alternative
Transaction”), such Party (the “Offering Party”) will first
provide the other Party (the “Receiving Party”) with the
opportunity to participate in such Alternative Transaction such
that the Parties interests (directly or indirectly) in
JCU
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following
completion of the Alternative Transaction are on a 50/50 basis (or
such other basis as may be mutually agreed between the Parties).
Notwithstanding the foregoing, if the OURD Agreement is terminated
or the JCU Acquisition is not completed as a result of a breach of
this Letter Agreement by either Xxxxxxx or UEX, then such breaching
Party shall not have any rights as a Receiving Party under this
Section 11, and the non-defaulting Party shall have no obligation
to offer the defaulting Party the right to participate in any
Alternative Transaction.
An Offering Party
that intends to enter into an Alternative Transaction will provide
written notice (the “Notice”) to the other Receiving
Party setting out the terms and conditions of the Alternative
Transaction and the Receiving Party will have 10 days to elect to
participate in the Alternative Transaction on a 50/50 basis (or
such other basis as may be mutually agreed between the Parties). If
the Receiving Party does not elect to participate within the
timeframe set out above, the Offering Party will have 120 days to
complete the Alternative Transaction substantially on the terms and
conditions set out in the Notice. If the Offering Party does not
complete the Alternative Transaction within such 120 day period, or
if there is a material change to the terms and conditions (which,
for greater certainty, shall be deemed to include any reduction to
the consideration), the rights of the Receiving Party under this
Section 11 shall recommence.
[Redacted
- Commercially sensitive information pertaining to transaction
terms]
This Section
11 shall not apply in the event that
Xxxxxxx terminates this Agreement pursuant to Section 14(b) or
14(c).
Each Party shall
indemnify the other Party, its officers, directors, agents,
employees and its affiliates (collectively, the “Indemnified Party”) from and
against any Material Loss. A “Material Loss” shall mean all
costs, expenses, losses, claims, demands, damages or liabilities,
of any nature or kind including attorneys' fees and other costs of
litigation (either threatened or pending) arising out of or based
on a breach by a Party (“Indemnifying Party”) of this
Letter Agreement, including the breach of representation, warranty
or covenant contained in this Letter Agreement and any and all
actions, suits, proceedings, claims, legal and other expenses
related or incidental thereto.
If any claim or
demand is asserted against an Indemnified Party in respect of which
such Indemnified Party may be entitled to indemnification under
this Letter Agreement, written notice of such claim or demand shall
promptly be given to the Indemnifying Party. The Indemnifying Party
shall have the right, but not the obligation, by notifying the
Indemnified Party within thirty (30) days after its receipt of the
notice of the claim or demand, to assume the entire control of
(subject to the right of the Indemnified Party to participate, at
the Indemnified Party's expense and with counsel of the Indemnified
Party's choice) the defence compromise or settlement of the matter.
Any damages to the assets or business of the Indemnified Party
caused by a failure by the Indemnifying Party to defend,
compromise, or settle a claim or demand in a reasonable and
expeditious manner, after the Indemnified Party has given notice of
such claim, shall be included in the damages for which the
Indemnifying Party shall be obligated to indemnify the Indemnified
Party. Any settlement or compromise of a matter by the Indemnifying
Party shall include a full release of claims against the
Indemnified Party that have arisen out of the claim or demand for
which indemnification is sought.
13.
Definitive
Agreement
The Parties may
elect to negotiate a definitive agreement on terms consistent with
those set out in this Letter Agreement (the “Definitive Agreement”). The
Definitive Agreement shall contain representations
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and warranties
(including but not limited to the representations included in
Schedule A hereto), conditions and covenants that are reasonable
and customary for transactions such as those contemplated
hereby.
The Definitive
Agreement will supersede this Letter Agreement and shall be in a
form and substance mutually acceptable to each of the Parties,
acting reasonably; provided, however, that if the Parties are
unable to settle the terms of a Definitive Agreement, the terms and
conditions set out in this Letter Agreement are valid and binding
upon them and the Transaction will be effected in accordance with
the terms hereof.
This Letter
Agreement may be terminated on or prior to the
Closing:
(a)
by the mutual written
agreement of Xxxxxxx and UEX;
(b)
by Xxxxxxx, in the event that
the JCU Acquisition has not been completed by September 30,
2021;
(c)
by Xxxxxxx in the event that
Xxxxxxx is not satisfied, in its sole discretion, acting
reasonably, by June 30, 2021, with the results of the Due Diligence
Investigations;
(d)
by either Party in the event
that the OURD Agreement is terminated by OURD in accordance with
its terms;
(e)
by written notice from the
Xxxxxxx to UEX in the event that UEX is in breach of its
representations, warranties or covenants hereunder; or
(f)
by written notice from UEX to
Xxxxxxx in the event that Xxxxxxx is in breach of its
representations, warranties or covenants hereunder.
In the event of
termination of this Letter Agreement as provided for in this
Section 14, this Letter Agreement shall
become void and of no further force or effect, provided that (i)
Sections 9, 11,
12, 14,
16, and 21
shall survive termination of this Letter Agreement; and (ii) in the
event that this Letter Agreement is terminated by a Party pursuant
to (e) or (f) above and the right to terminate arose because of a
breach of this Letter Agreement by the other Party (including a
breach by the other Party resulting in a condition in favour of the
terminating Party failing to be satisfied), then, the other Party
shall remain fully liable for any and all Material Losses (as
defined herein) sustained or incurred by the terminating Party
directly or indirectly as a result thereof.
15.
Currency
All references to
“$” or sums of money that are referred to in this
Letter Agreement are expressed in lawful money of Canada, unless
otherwise specified.
Except as may be
otherwise agreed in writing, each of the Parties shall be
responsible for and bear all of its own costs and expenses incurred
in connection with the Transaction, including any broker’s or
finder’s fees and expenses of their respective
Representatives, incurred at any time in connection with pursuing
or consummating the Transaction.
17.
Assignment
No Party shall
assign any of its rights and obligations provided for or referred
to in this Letter Agreement without the prior written consent of
the other Parties.
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18.
Counterparts
This Letter
Agreement may be signed in one or more counterparts, each of which
shall be deemed an original, and all of which together shall
constitute one and the same instrument.
19.
Further
Assurances
Each Party shall
from time to time promptly execute and deliver or cause to be
executed and delivered all such further documents and instruments
and shall do or cause to be done all such further acts and things
in connection with this Letter Agreement that another Party may
reasonably require as being necessary or desirable in order to
effectively carry out or better evidence or perfect the full intent
and meaning of this Letter Agreement or any provision
hereof.
20.
Entire
Agreement
This Letter
Agreement, together with the agreements and other documents to be
delivered pursuant to this Letter Agreement, constitutes the entire
agreement between the Parties pertaining to the subject matter of
this Letter Agreement and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or
written. There are no other agreements between the Parties in
connection with the subject matter of this Letter Agreement
(whether oral or written, express or implied, statutory or
otherwise) except as explicitly set out in this Letter
Agreement.
This Letter
Agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia and the federal laws of
Canada applicable therein.
[Remainder
of Page Intentionally Left Blank]
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This offer shall
remain open for acceptance until 8:30 pm (Vancouver time) on June
13, 2021 unless withdrawn by Xxxxxxx at any time prior to
acceptance. If this offer is not accepted at or prior to that time,
it shall be null and void.
Yours
truly,
XXXXXXX
MINES CORP.
Per:
Name: Xxxxx
Xxxxx
ACKNOWLEDGED
AND ACCEPTED
this 13th
day of June, 2021.
UEX
CORPORATION
Per:
Name: Xxxxx
Xxxxxxxx
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Schedule A
– Representations and Warranties
Each of the
Parties represents and warrants to each other Party as to the
matters set out below and acknowledges each other Party, as
applicable, is relying upon all such representations and warranties
for the purposes of this Letter Agreement:
(a)
it is a company incorporated,
continued, amalgamated or formed, as applicable, under the laws of
the jurisdiction of its incorporation, continuation, amalgamation
or formation, as the case may be, and it is duly organized and
existing under such laws and is in good standing and qualified to
own, lease or hold its properties and, in the case of the Parties,
to carry on business in the manner contemplated by this Letter
Agreement;
(b)
it has all necessary
corporate power, authority and capacity to enter into and perform
its obligations under this Letter Agreement, and all corporate
actions required to authorize it to enter into and perform its
obligations under this Letter Agreement have been properly
taken;
(c)
all necessary corporate and
shareholder approvals have been obtained and are in effect with
respect to the execution and delivery of this Letter Agreement, and
no further action on the part of the directors or shareholders is
necessary to make this Letter Agreement valid, binding and
enforceable on a Party;
(d)
it is not a party to, bound
or affected by or subject to any agreement, instrument, charter or
by-law provision or Law that would be violated, contravened or
breached by entering into or performing under this Letter
Agreement;
(e)
this Letter Agreement has
been duly executed and delivered by it and is valid, binding and
enforceable against it in accordance with its terms, subject,
however, to limitations on enforcement imposed by bankruptcy,
insolvency, reorganization or other laws affecting the enforcement
of the rights of creditors and others and to the extent that
equitable remedies such as specific performance and injunctions are
only available in the discretion of the court from which they are
sought; and
(f)
it is not a
“non-resident” for purposes of the Income Tax Act (Canada).
UEX represents
and warrants to Xxxxxxx as to the matters set out below and
acknowledges that Xxxxxxx is relying upon all such representations
and warranties for the purposes of this Letter
Agreement:
(a)
UEX has the corporate power
and authority to enter into the OURD Agreement and to perform the
transactions contemplated thereby and the OURD Agreement has been,
duly executed and delivered by UEX, and constitutes a valid and
binding obligation of UEX enforceable against UEX in accordance
with its terms, subject to bankruptcy, insolvency, moratorium, or
similar laws affecting creditors' rights generally;
(b)
to the knowledge of UEX, and
without having conducted any investigation, the authorized and
issued share capital of JCU together with the number, class and
kind of shares issued and outstanding in respect of JCU are as set
forth in Appendix A to this Schedule A hereto;
(c)
to the knowledge of UEX, and
without having conducted any investigation, all of the issued and
outstanding shares of JCU have been duly and validly issued and are
outstanding as fully paid an non-assessable shares;
(d)
UEX has due and sufficient
right and corporate authority to enter into this Letter Agreement
on the terms and conditions set forth herein and UEX will forthwith
after the
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A-2
Closing, have,
due and sufficient right and corporate authority to transfer the
legal and beneficial title and ownership of 50% of the JCU Shares
to Xxxxxxx as contemplated herein free and clear of all
encumbrances; and
(e)
except for Xxxxxxx pursuant
to this Letter Agreement and UEX pursuant to the OURD Agreement, to
the knowledge of UEX, and without having conducted any
investigation, no Person has any agreement, right or option,
present or future, contingent, absolute or capable of becoming an
agreement, right or option or which with the passage of time or the
occurrence of any event could become an agreement, right or
option:
(i)
to require JCU to issue any
shares or other securities in its capital or any other security
convertible or exchangeable into shares in its capital or to
convert or exchange any securities into or for shares in its
capital;
(ii)
for the issue or allotment of
any unissued shares in JCU;
(iii)
to require JCU to purchase,
redeem or otherwise acquire any of the issued and outstanding
shares in its capital; or
(iv)
to acquire any of the JCU
Shares.
Appendix B
To Schedule A SHARE CAPITAL STRUCTURE
[Redacted
- Commercially sensitive information pertaining to transaction
terms]
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51263929.8
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[Redacted
- Commercially sensitive information pertaining to transaction
terms and confidential]
Schedule B
–
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51263929.8
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X-0
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X-0
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X-0
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X-0
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X-0
X-0
