Exhibit 99.4
AMENDED AND RESTATED
SHARE EXCHANGE AGREEMENT
This amended and Restated Share Exchange Agreement (this "Agreement") is made and entered into on November 13, 2007, by and among Pacific Copper Corp., a Delaware corporation, as buyer (the "Company"); Sociedad Pacific Copper Chile Limitada., a Chilean limited liability partnership as the acquired entity ("Pacific LTDA"); and the persons executing this Agreement in their capacity as partners/members/interest holders of Pacific LTDA (collectively, the "Interest Holders").
RECITALS:
A. As of Closing, the Interest Holders will own of record and beneficially 100% of the equity interests in Pacific LTDA (the "Pacific LTDA Interests") as set out on Schedule A in the percentages opposite their names;
B. The Interest Holders desires to sell to the Company, and the Company desires to purchase from the Interest Holders, 99% of the Pacific LTDA Interests, on the terms and subject to the conditions of this Agreement;
C. The members/partners of Pacific LTDA and the Board of Directors of the Company have approved the execution of this Agreement and performance of the parties' respective obligations herein; and
D. As of the Closing Date, Pacific LTDA will own or have the exclusive right to explore the mineral claims located in Chile and more particularly described in Schedule 4.14 of this Agreement (collectively referred to herein as the “Properties”);
NOW, THEREFORE, for and in consideration of the premises and the mutual promises and undertakings contained herein, and for other good and valuable consideration, and subject to the terms and conditions of this Agreement, the parties hereto agree as follows:
1. THE EXCHANGE.
1.1 Sale and Purchase of the Pacific LTDA Interests. On the terms and subject to conditions of this Agreement, at the Closing (defined below), the Interest Holders shall sell, transfer, assign, convey and deliver to the Company, free and clear of all adverse claims, security interests, liens, claims and encumbrances of any kind (other than restrictions under applicable securities laws or as expressly agreed to herein by the Company), and the Company shall purchase, accept and acquire 99% of the Pacific LTDA Interests from the Interest Holders, such purchase and sale being herein sometimes referred to as the "Exchange." The Company shall receive good and merchantable title to the Pacific LTDA Interests.
1.2 Deposit. The Company has issued a deposit in the amount of US $25,000 payable to Harold Gardner or his assignee, to be applied only to costs of Pacific LTDA for incorporation and other expenses related to the completion of this Agreement and the condition set out herein.
1.3 Issuance of Exchange Shares. In full payment for the Pacific LTDA Interests, the Company shall ratably issue and deliver to the Interest Holders, an aggregate of 6,150,000 common shares of the Company, to the Interest Holders in the number set out opposite the Interest Holders name in Schedule A to this Agreement (the "Exchange Shares"). The Exchange Shares, will, when issued, be validly issued, fully paid, and nonassessable; the sale, issuance and delivery of the Exchange Shares on the terms herein contemplated has been authorized by all requisite corporate action of the Company; and the Exchange Shares will not be subject to any preemptive rights, options or similar rights on the part of any shareholder or creditor of the Company or any other person. The Exchange Shares will be issued at Closing (as defined below) pursuant to an exemption from registration under the Securities Act of 1933, as amended (the “Securities Act”) pursuant to Section 4(2) of the Securities Act. Upon issuance, the Exchange Shares will be considered “restricted” shares and may not be transferred or re-sold unless an exemption for such transfer is available or the re-sale is covered by a registration statement filed under the Securities Act.
1.4 Restrictive Legend. When issued the certificates evidencing the Exchange Shares will bear a restrictive legend substantially in the following form:
The shares represented by this Certificate have not been registered under the Securities Act of 1933, as amended (the "Act"), and are "restricted securities" as that term is defined in Rule 144 under the Act. These shares may not be offered for sale, sold or otherwise transferred except pursuant to an effective registration statement under the Act, or pursuant to an exemption from registration under the Act.
After one year the Exchange Shares may be sold subject to compliance with exemptions under Rule 144.”
1.4 Closing. Subject to the conditions precedent set forth herein, the Closing of all transactions herein contemplated ("Closing") shall take place within 65 days of the effective date of this Agreement as set out above, at a place and time mutually agreed upon by Pacific LTDA and the Company ("Closing Date") or such other date as the parties may agree. This Agreement shall be effective and binding when signed by all parties.
1.5 General Manager of Pacific LTDA. At the Closing, Eduardo Esteffan shall be the General Manager of Pacific LTDA and shall retain a 1% Interest in Pacific LTDA. as described in Schedule A
1.6 Further Assurances. Pacific LTDA and the Interest Holders agree to execute all documents and instruments and to take or to cause to be taken all actions which the Company deems necessary or appropriate to complete the transactions contemplated by this Agreement, whether before or after the Closing.
1.7 Public Filing. Upon execution of this Agreement, the Company shall prepare and file such documents as are necessary to comply with all applicable U.S. Securities Laws and regulations, including a prospectus supplement and a current report on Form 8-K. The parties agree to cooperate in the preparation of such filings.
2. OTHER AGREEMENTS OF THE PARTIES.
2.1 Pacific LTDA to Provide Financial Records. Pacific LTDA at Closing shall provide financial records, including receipts for incorporation costs and all other expenditures incurred since the date of inception (collectively referred to herein as “Financial Data”).
3. CAPITALIZATION.
3.1 The Company's Capitalization at Closing. Immediately prior to the Closing, the Company shall have issued and outstanding common stock of not more than 29,145,932 shares of common stock. No shareholder of the Company has or will have any preemptive right or similar right to purchase the Exchange Shares or other stock of the Company, except warrants outstanding to purchase 3,085,000 shares at $0.75, warrants to purchase 233,100 shares at $0.50 and Options outstanding to purchase 4,450,000 shares at $0.50 and $0.51 per share. The Company reserves the right to issue additional options to officers, directors, consultants and employees which may occur prior to the Closing Date.
4. REPRESENTATIONS AND WARRANTIES OF Pacific LTDA AND INTEREST HOLDERS. Pacific LTDA and the Interest Holders hereby represent and warrant to the Company that the following are true and correct as of the Closing Date:
4.1 Organization and Standing. Pacific LTDA is and on the Closing Date will be duly organized, validly existing and in good standing under the laws of Chile, with all requisite power and authority to carry on the business in which it is engaged, to own the Properties and other assets it owns, and is duly qualified and licensed to do business and is in good standing in all jurisdictions where the nature of its business makes such qualification necessary.
4.2 Capitalization. Other than the Pacific LTDA Interests held by the interest Holders, no other interests are authorized or have been issued. All of the outstanding Interests of Pacific LTDA have been duly authorized, validly issued, and are fully paid and non assessable. Pacific LTDA does not have outstanding any option, warrant or similar instrument and is not a party to or bound by any agreement, instrument, arrangement, contract, obligation, commitment or understanding of any character, whether written or oral, express or implied, whereby Pacific LTDA is bound to issue more Interests or any instrument or right convertible into or exchangeable for Interests, nor relating to the sale, assignment, encumbrance, conveyance, transfer or delivery of any Interest in Pacific LTDA of any type or class.
4.3 Litigation. There are no claims, actions, suits, proceedings or investigations pending or threatened against or affecting Pacific LTDA or any of its properties or assets in any court or by or before any governmental department, commission, board, bureau, agency or other instrumentality, domestic (Chilean) or foreign, or arbitration tribunal or other forum which, if determined adversely to Pacific LTDA, would materially affect its business, prospects, Properties or financial condition or Pacific LTDA's right to conduct its mineral exploration business as being conducted or expected to be conducted. There are no judgments, decrees, injunctions, writs, orders or other mandates outstanding to which Pacific LTDA is a party or by which it is bound or affected.
4.4 Estoppel. All statements made in this Agreement, or in any Exhibit or Schedule hereto, or in any document or certificate executed and delivered herewith, by Pacific LTDA are true, correct and complete as of the date of this Agreement and will be so as of the Closing Date. All statements contained in any certificate made by any official of Pacific LTDA and delivered to the Company shall be deemed representations and warranties of Pacific LTDA. and the Interest Holders.
4.5 Compliance with Laws and Permits. To the best of its knowledge, Pacific LTDA has complied in all material respects with its organizational documents, including its articles of formation, if any, its partnership agreement and/or operating agreement and bylaws, if any, (each as amended to date), all applicable laws, regulations and rules, all applicable orders, judgments, writs, decrees or injunctions of any local or county governments or any department, agency or other instrumentality thereof, domestic (Chilean) or foreign, applicable to its business or Properties, and has not done or omitted to do any act or acts which singly or in the aggregate are in violation of any of the foregoing. To the best of its knowledge, Pacific LTDA has obtained all licenses and permits necessary to own and explore its Properties and carry out its operations, is not in violation of any such license or permit and has not received any notification that any revocation or limitation thereof is pending or threatened.
4.6 No Undisclosed Material Liabilities. Pacific LTDA has not incurred any liabilities or obligations whatever (whether direct, indirect, accrued, contingent, absolute, secured or unsecured or otherwise) affecting or related to the Properties, including liabilities as mortgagor, guarantor or surety or otherwise for debts or the obligations of others and tax liabilities due or to become due, except as described in SCHEDULE 4.6. There is no basis for any material claim against Pacific LTDA's Properties or assets, except as disclosed in writing to the Company in SCHEDULE 4.6. Pacific LTDA has no creditors or agreement with another third party whose prior consent might be required by law to the sale of the Properties.
4.7 Material Transactions and Adverse Changes. Except as has been disclosed in writing to the Company in the schedules to this Agreement, Pacific LTDA has not and as of the Closing Date will not have: (i) suffered any material adverse change in its assets taken as a whole; (ii) suffered any damage or destruction in the nature of a casualty loss to any one or more of its assets, whether or not covered by insurance, which singly or in the aggregate are materially adverse to the properties or business of Pacific LTDA; (iii) made any change in any method of accounting or accounting practice, including the revaluation of any of its assets; or (iv) agreed in writing or otherwise to take any action prohibited by this Agreement.
4.8 Taxes. All taxes applicable to Pacific LTDA, its Properties or other assets and/or to the Pacific LTDA Interests (including the transfer of such Pacific LTDA Interests), including any income, excise, unemployment, occupational, franchise, ad valorem and other taxes, duties, assessments or charges levied, assessed or imposed upon Pacific LTDA by the Government of Chile or any other government or subdivision or instrumentality thereof have been duly paid (or will be paid as of the Closing Date) or adequately disclosed to the Company and provided for, and all required tax returns or reports concerning any such items have been duly filed. Pacific LTDA has not waived any statute of limitations with respect to any tax liability whatever for any period prior to the date of this Agreement or agreed to any extension of time with respect to a tax assessment or liability.
4.9 Indebtedness to and from Affiliates. Pacific LTDA is not indebted to any partner, officer, director, employee manager or member thereof, or any affiliate of such persons, as of the date of this Agreement, and no money or property is owed to Pacific LTDA by any partner, officer, director, employee, manager or member thereof or any affiliate of such persons, and none will be owed as of the Closing Date.
4.10 Documents Genuine. All originals and/or copies of Pacific LTDA organizational documents, including articles of formation, if any, its partnership agreement and/or operating agreement and bylaws, if any,, each as amended to date, and all minutes of meetings and written consents of the General Manager and Interest Holders in lieu of meetings of Interest Holders of Pacific LTDA, Financial Data, and any and all other documents, material, data, files, or information which have been or will be furnished to the Company, are and will be true, complete, correct and unmodified originals and/or copies of such documents, information, data, files or material.
4.11 Employees and Salaries. Pacific LTDA will have no employees at the Closing Date.
4.12 Authorization and Validity. The execution, delivery and performance by Pacific LTDA of this Agreement and any other agreements contemplated hereby, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by Pacific LTDA and all necessary approvals of the Interest Holders of Pacific LTDA will have been obtained by the Closing Date. This Agreement and any other agreement contemplated hereby have been or will be as of the Closing Date duly executed and delivered by Pacific LTDA and constitutes and will constitute legal, valid and binding obligations of Pacific LTDA, enforceable against it in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally or the availability of equitable remedies.
4.13 Consents; Approvals; Conflict. No consent, approval, authorization or order of any court or governmental agency (including the Government of Chile and any agency that regulates mining exploration, development or extraction in Chile) or other body is required for the Interest Holders to consummate the Exchange. Neither the execution, delivery, consummation or performance of this Agreement shall conflict with, or constitute a breach of any law or regulation in Chile, and no prior approval is necessary by or under, Pacific LTDA’s articles of formation, if any, its partnership agreement and/or operating agreement and bylaws, if any, or any note, mortgage, indenture, deed of trust, lease, obligation, or other agreement or instrument to which Pacific LTDA is a party.
4.14 Property. Attached to this Agreement as SCHEDULE 4.14 is a description of all mineral claims owned or which Pacific LTDA has the exclusive right to explore. Pacific LTDA represents and warrants that it has registered rights to those mineral claims, free of all regulatory, liens or encumbrances and will have such registered rights at Closing. Pacific LTDA will provide at Closing, proof of clear title or right to the mineral claims included in SCHEDULE 4.14.
4.15 Restrictive Covenants. Prior to the consummation of the Exchange, Pacific LTDA shall conduct its business in the ordinary and usual course without unusual commitments and in compliance with all applicable laws, rules, and regulations. Furthermore, Pacific LTDA will not, without the prior written consent of the Company, (i) make any changes in its capital structure, (ii) incur any liability or obligation other than current liabilities incurred in the ordinary and usual course of business, (iii) incur any material indebtedness for borrowed money, (iv) make any loans or advances other than in the ordinary and usual course of business, (v) declare or pay any dividend or make any other distribution with respect to its partner Interests, (vi) issue, sell, or deliver or purchase or otherwise acquire for value any of its outstanding Interests or other securities, or (vii) mortgage, pledge, or subject to encumbrance any of its assets or Properties or sell or transfer any of its assets or Properties.
4.16 Disclaimer of Further Warranties; Etc. Except as expressly set forth in this Agreement and the Schedules and Exhibits hereto, the Company has made no other representation or warranty to Pacific LTDA or the Interest Holders in connection with the Exchange. Pacific LTDA's and the interest Holders’s decision to enter into the Exchange is based upon their own independent judgment and investigation and not on any representations or warranties of the Company, other than those expressly stated in this Agreement and in the Schedules and Exhibits hereto.
4.17 Environmental Matters. Pacific LTDA, the Interest Holders and any predecessor entity controlled by the Interest Holders and or associates of the Interest Holders in connection with the Properties:
(a) has not (A) generated, used, transported, treated, stored, released or disposed of any hazardous substance in violation of any applicable laws; or (B) engaged in any generation, use, transportation, treatment, storage, release or disposal of any hazardous substance in connection with the conduct of its business or the use of any property or facility which has created or might reasonably be expected to create any liability under any applicable laws or which would require reporting to or notification of any governmental entity and will not have at the Closing Date.
(b) has not (A) received notice that they are potentially responsible parties for an environmental cleanup site or for corrective action under any applicable law; (B) submitted or been required to submit any environmental notice pursuant to any applicable law; (C) received any written request for information in connection with any environmental cleanup site; or (D) been required to undertake any prospective or remedial action or clean-up action of any kind at the request of any governmental entity, or at the request of any other person, relating to any applicable environmental law and will not have at the Closing Date.
(c) has conducted its operations with respect to the Properties in material compliance with all applicable environmental laws.
(d) Pacific LTDA. and the Interest Holders are not aware of any environmental claim, investigation or violation that would affect the ability of Pacific LTDA to explore the Properties.
5. REPRESENTATIONS AND WARRANTIES OF THE INTEREST HOLDERS. The Interest Holders represents and warrants to the Company that the following are true and correct as of the date hereof and will be true and correct through the Closing Date as if made on that date:
5.1 Ownership of the Pacific LTDA Interests. The Interest Holders own, of record and beneficially, the Interests shown next to their name on Schedule A; the Interest Holder’s Interests are free and clear of all liens, claims, rights or other encumbrances whatever and of all options and similar rights of third persons; and no person has or will have any right in and to such share except as is created by force of any applicable law. No third party has or at Closing will have any right of first refusal, pre-emptive right, option or similar right to acquire the interests of the Interest Holder’s except as disclosed to the Company in writing prior to the Closing.
5.2 Full right and Legal Capacity. The Interest Holders have the full right, power and legal capacity to enter into this Agreement and sell and deliver the Pacific LTDA Interests to the Company.
5.3 Solvency. The Interest Holders represent and warrant that they are not now insolvent and will not be insolvent after selling and delivering the Pacific LTDA Interests to the Company on the terms of this Agreement, and in exchange for the Pacific LTDA Interests being sold hereby the Interest Holders are receiving new consideration at least equal to the full and fair value of the Pacific LTDA Interests being sold.
5.4 Acknowledgements Regarding the Company and the Exchange Shares.
(a) Pacific LTDA and the Interest Holders understand and acknowledge that the Company is a public company with no current revenues. Each Shareholder recognizes that the Exchange Shares are speculative and involve a high degree of risk, and that the prospects and future success of the Company depend principally on its ability to raise sufficient capital to carry out exploration on the Pacific LTDA mineral claims and its other mineral properties.
(b) The Interest Holders acknowledge and agree that their representatives have been furnished with the Company’s Prospectus (for information purposes only) setting out its business, assets, financial condition and plan of operation. The Interest Holders further represent that they have had an opportunity to ask questions of and receive answers from the Company regarding the Company and its business, assets, results of operations, financial condition and plan of operation and the terms and conditions of the issuance of the Exchange Shares.
(c) In connection with the issuance and delivery of the Exchange Shares, the Interest Holders understand and acknowledge that the Exchange Shares have not been registered under the Securities Act and have been issued in reliance upon exemptions from registration provided by Section 4(2) of the Securities Act and Regulation D promulgated under the Securities Act, on the grounds that the transactions contemplated in this Agreement do not involve any public offering. The Interest Holders acknowledge that the Exchange Shares are "restricted securities" as that term is defined in Rule 144(a) of the General Rules and Regulations under the Securities Act and understand that the Exchange Shares must be held indefinitely until they are subsequently registered for re-sale under the Securities Act or an exemption from such registration requirements is available for their re-sale. The Interest Holders understand and agree that the prior written consent of the Company will be necessary for any transfer of the Exchange Shares until the Exchange Shares have been duly registered for re-sale or the transfer is made in accordance with Rule 144 or other available exemption under the Act. The Interest Holders further understand that every certificate issued by the Company evidencing Exchange Shares will bear a legend restricting transfer as provided in this Agreement.
(d) The Interest Holders, alone or together with their adviser(s), have such knowledge and experience in financial, tax and business matters as to enable the Interest Holders to utilize the information made available by the Company, in connection with the Exchange and issuance of the Exchange Shares, to evaluate the merits and risks of acquiring the Exchange Shares and to make an informed investment decision with respect thereto.
(e) The Interest Holders acknowledge that they have reviewed the registration statement of the Company filed on July 3, 2007 with the Securities and Exchange Commission (for information purposes only) and have access to current disclosure filings of the Company for information purposes and that the Exchange Shares are not being sold pursuant to a prospectus.
5.5 True and Correct Information and Material Changes. All information which the Interest Holders have provided or will provide to the Company is or will be correct and complete as of the date furnished to the Company, and, if there should be any material change in such information prior to the Closing as to Interest Holders, will immediately provide the Company with such information.
5.6 No Solicitation. Interest Holders were not solicited by the Company by any form of general solicitation or general advertising, including but not limited to any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or made available over telephone lines by any information service, or any seminar or meeting whose attendees had been invited by any means of general solicitation or general advertising.
5.7 No Other Representations or Warranties. Except as expressly set forth in this Agreement and the Schedules and Exhibits hereto, the Company has not made any representation or warranty to the Interest Holders in connection with this Agreement. The Interest Holders’ decision to enter into the Exchange is based upon their own independent judgment and investigation and not on any representations or warranties of the Company other than those expressly stated in this Agreement and in the Schedules and Exhibits hereto.
5.8 No Operations. Other than certain reimbursements paid to Pacific LTDA in connection with the transactions contemplated by this Share Exchange Agreement, Pacific LTDA has not had any revenue or operations since inception.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Unless specifically stated otherwise, the Company represents and warrants to the other parties that the following are true and correct as of the date hereof and will be true and correct through the Closing Date as if made on that date.
6.1 Organization and Good Standing. The Company is and on the Closing Date will be duly organized, validly existing and in good standing under the laws of the State of Delaware.
6.2 Authorized Capitalization. As provided in its Articles of Incorporation, the authorized capital stock of the Company consists of 200,000,000 common shares of common stock at par value $.0001 per share, of which not more than 29,145,932 shares will be issued and outstanding prior to the Closing and 50,000,000 shares, par value $.0001 per share, are designated as preferred stock, none of which are issued or outstanding or will be at Closing.
6.3 Declaration of Interest. The Company declares that in its decision to acquire Pacific LTDA, it is relying on independent legal, financial and tax experts and other technical personnel, and that the Company’s decision to enter into this Share Exchange Agreement is based upon its own independent judgment, investigation and evaluation, and not on any representations or warranties of the Interest Holders, other than those expressly stated in this Agreement and in the schedules and exhibits hereto. Furthermore, the Company hereby declares that its principle business is the acquisition, exploration and development of mineral properties, both in the United States and in foreign countries and that it has the requisite technical and managerial personnel and experience to conduct such business and that such technical and managerial experience was employed in the evaluation of both the mineral potential of the Pacific LTDA’s Property, as well as the business climate and opportunities in Chile.
6.4 Litigation. There are no claims, actions, suits, proceedings or investigations pending or threatened against or affecting the Company in any court or by or before any federal, state, municipal or other governmental department, commission, board, bureau, agency or other instrumentality, domestic or foreign, or arbitration tribunal or other forum. There are no judgments, decrees, injunctions, writs, orders or other mandates outstanding to which the Company is a party or by which it is bound or affected.
6.5 Authorization and Validity. The execution, delivery and performance by the Company of this Agreement and any other agreements contemplated hereby, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by the Company. This Agreement and any other agreement contemplated hereby have been or will be as of the Closing Date duly executed and delivered by the Company and constitute and will constitute legal, valid and binding obligations of the Company, enforceable against it in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors' rights generally or the availability of equitable remedies.
6.6 Taxes. All income, excise, unemployment, social security, occupational, franchise and other taxes, duties, assessments or charges levied, assessed or imposed upon the Company by the United States or by any state or municipal government or subdivision or instrumentality thereof have been duly paid or adequately provided for, and all required tax returns or reports concerning any such items have been duly filed or will be so filed.
6.7 Indebtedness to or from Affiliates. The Company is not and will not be indebted to any officer, director, employee or shareholder thereof as of the Closing Date. No money or property is owed to the Company by any officer, director, employee or shareholder thereof, and none will be owed as of the Closing.
6.8 Consents; Approvals; Conflict. No consent, approval, authorization or order of any court or governmental agency or other body is required for the Company to execute and perform its obligations under this Agreement. Neither the execution, delivery, consummation nor performance of this Agreement shall conflict with, constitute a breach of the Company's articles of incorporation and bylaws, as amended to date, or any note, mortgage, indenture, deed of trust or other agreement of instrument to which the Company is a party or by which it is bound nor, to the best of the Company's knowledge and belief, any existing law, rule, regulation, or any decree of any court or governmental department, agency, commission, board or bureau, domestic or foreign, having jurisdiction over the Company. The Company has timely, accurately, and completely filed all reports, statements and schedules required under applicable federal and state securities laws with the U.S. Securities and Exchange Commission and all governing securities authorities, if any.
6.9 Disclaimer of Further Warranties; Etc. Except as expressly set forth in this Agreement and the Schedules and Exhibits hereto, neither Pacific LTDA nor the Interest Holders have made any other representation or warranty to the Company in connection with the Exchange. The Company's decision to enter into the Exchange is based upon the Company's own independent judgment and investigation and not on any representations and warranties of Pacific LTDA or the Interest Holders other than those expressly stated in this Agreement and in the Schedules and Exhibits hereto.
7. CONDITIONS TO OBLIGATIONS OF THE PARTIES; DELIVERIES. All obligations of the parties under this Agreement are subject to the fulfillment, prior to the Closing, of all conditions precedent and to performance of all covenants and agreements and completion of all deliveries contemplated herein, unless specifically waived in writing by the party entitled to performance or to demand fulfillment of the covenant or delivery of the documents.
7.1 Documents to be delivered by Pacific LTDA to the Company. At the Closing, the following documents shall be delivered to the Company by Pacific LTDA or the Interest Holders, as the case may be, which documents shall be reasonably satisfactory in form and content to the Company's counsel:
(a) Certificates executed by an authorized signing officer of Pacific LTDA, dated as of the Closing Date, certifying that the representations and warranties of Pacific LTDA, contained in this Agreement and the information set forth in all Schedules and Exhibits of Pacific LTDA hereto are then true and correct and that Pacific LTDA has complied with all agreements and conditions required by this Agreement and all related agreements to be performed or complied with by Pacific LTDA
(b) A copy of the partners' resolution or the minutes of the meeting of the Interest Holders of Pacific LTDA approving the execution and performance of this Agreement.
(c) The certificates evidencing the Pacific LTDA Interests to be acquire hereunder have been duly transferred and registered in Pacific LTDA’s records, such certificates legally representing the equity interests of Pacific LTDA,
(d) All completed Schedules and all Exhibits called for in this Agreement.
(e) A legal opinion of counsel to Pacific LTDA, acceptable to the Company, covering: (i) the existence and good standing of Pacific LTDA as a limited liability partnership in Chile, (ii) the authorization of the transactions contemplated herein by Pacific LTDA, (iii) the valid issuance and certification of the Pacific LTDA Interests that are to be exchanged hereunder, (iv) the binding nature of this Agreement upon execution by Pacific LTDA, and the Interest Holders, (v) no required consents of governmental agencies or private third parties for Pacific LTDA to consummate the transactions contemplated in this Agreement, (vi) no violation of Chilean law as a result of the Exchange contemplated by this Agreement and (vii) legal title of Pacific LTDA to the Properties.
7.2 Documents to be delivered to Pacific LTDA and the Interest Holders. At the Closing the following documents shall be delivered to Pacific LTDA and the Interest Holders by the Company, which documents shall be reasonably satisfactory in form and content to Pacific LTDA's counsel:
(a) To the Interest Holders, stock certificates evidencing the Exchange Shares.
(b) To Pacific LTDA, a certificate executed by the Company dated as of the Closing Date, certifying that the representations and warranties of the Company contained in this Agreement and the information set forth in all Schedules and Exhibits of the Company are then true and correct and that the Company has complied with all agreements and conditions required by this Agreement to be performed or complied with by it.
(c) To Pacific LTDA, a copy of the directors' resolution or the minutes of the meeting of the directors of the Company approving the execution and performance of this Agreement.
(d) All completed Schedules and all Exhibits called for in this Agreement.
8. OTHER COVENANTS OF THE PARTIES. The parties agree that, prior to the Closing:
8.1 Effectuation of this Agreement. The parties hereto each will use their best efforts to cause this Agreement and all related agreements to become effective, and all transactions herein and therein contemplated to be consummated, in accordance with its and their terms, to obtain all required consents, waivers and authorizations of governmental entities and other third parties, to make all filings and give all notices to those regulatory authorities or other third parties which may be necessary or reasonably required in order to effect the transactions contemplated in this Agreement, and to comply with all federal, local and state laws, rules and regulations as may be applicable to the contemplated transactions in the United States and in Chile.
8.2 Restriction on Action. The parties each agree that they will not do any thing or act prohibited by this Agreement or any related agreement, or fail to do any thing or act which he or it has undertaken to do in this Agreement or any related agreement.
8.3 No-Shop Provision. Pacific LTDA and the Interest Holders agree that, from the date hereof until Closing or termination of this Agreement, neither will take any action, directly or indirectly, to solicit indications of interest in, or offers for, any transaction similar to the Exchange or any investment into Pacific LTDA from anyone other than the Company. Pacific LTDA agrees promptly to inform the Company of any offers or solicitations for a similar transaction, including the terms thereof, made by any third party, provided that the foregoing shall not include casual oral offers or solicitations not formally considered by Pacific LTDA Violation by Pacific LTDA of any of the requirements of this paragraph shall constitute a material breach of this Agreement.
8.4 Confidentiality. Pacific LTDA the Interest Holders and the Company covenant that they each will not disclose any confidential information of the other parties, except to its officers, directors, attorneys, accountants, and employees involved in these transactions, and only then on the condition that such individuals not disclose the information disclosed to them. Notwithstanding the foregoing, the terms of this Agreement, or of any of the transactions contemplated hereby, may be disclosed following execution hereof, provided that each party will provide at least twenty-four hours' notice to the other party prior to making the initial public announcement regarding the transaction. In addition, either party may disclose this Agreement or any part hereof to any third party at any time if required to do so by law, this Agreement or other contractual obligation. Pacific LTDA and the Interest Holders acknowledge that the Company is a reporting company in the United States and that the Company will control the public dissemination of information about this transaction. Following its execution, this Agreement will be filed by the Company with the Securities and Exchange Commission as an exhibit to a current report of the Company on Form 8-K (or another form) and will become a public document.
9. SURVIVAL OF COVENANTS AND WARRANTIES.
9.1 Survival of Covenants and Warranties. The representations, warranties, covenants and agreements made by Pacific LTDA and Interest Holders on the one hand, and the Company on the other hand, shall survive the Closing for a period of two years and shall be fully enforceable at law or in equity against such other party and its successors and assigns for a period of one year after the Closing Date. Any investigation at any time made by or on behalf of (or any disclosure to) any party hereto shall not diminish in any respect whatsoever its right to rely on the representations and warranties of the other party hereto.
9.2 Notice of Claims. The Company, Pacific LTDA and the Interest Holders each agree to give prompt written notice to the other of any claim against the party giving notice which might give rise to a claim by it against the other party hereto, stating the nature and basis of the claim and the actual or estimated amount thereof.
10. TERMINATION OF THIS AGREEMENT.
10.1 Grounds for Termination. This Agreement shall terminate:
(a) By mutual written consent of the Company and Pacific LTDA; or
(b) By Company or Pacific LTDA, if:
(i) all the conditions precedent to its respective obligations hereunder have not been satisfied or waived prior to the Closing Date, as it may be accelerated or extended, or if Interest Holders refuse to execute this Agreement;
(ii) any party shall have defaulted or refused to perform in any material respect under this Agreement, or if the Company or Pacific LTDA should have reasonable cause to believe there has been a material misrepresentation concerning, or failure or breach of, any representation or warranty by the other party, or if it appears that either Pacific LTDA or the Company has committed any unlawful acts affecting the other party;
(iii) the transactions contemplated in this Agreement and related agreements have not been consummated on the Closing Date, as it may be accelerated or extended, OR
(iv) either the Company or Pacific LTDA shall reasonably determine that the transactions contemplated in this Agreement have become inadvisable by reason of the institution or threat by any federal, state or municipal governmental authorities or by other person whatever of a formal investigation or of any action, suit or proceeding of any kind against either or both parties which in one party's reasonable belief is material in light of the other party's business, prospects, properties or financial condition;
10.2 Manner of Termination. Any termination of this Agreement (other than an automatic termination) shall be made in accordance with the above listed grounds and, if terminated by Pacific LTDA or the Company, shall be accompanied by a copy of the resolution of the terminating party's board of directors or governing party or body. Written notice of termination shall be given to the other party as required in this Agreement as promptly as is practical under the circumstances. Upon a party's receipt of such termination notice, this Agreement shall terminate and the transactions herein contemplated shall be abandoned without further action by the parties.
10.3 Survival of Confidentiality Provisions. Upon termination of this Agreement for any reason, (i) the covenants of the parties concerning the confidentiality and proprietary nature of all documents and other information furnished hereunder shall remain in force except as to information which has otherwise become public knowledge, and (ii) each party shall promptly return all documents received from the other party in connection with this Agreement. This Paragraph constitutes a mutual covenant of the parties, and either may judicially enforce it.
11. MISCELLANEOUS PROVISIONS.
11.1 Assignment. Neither this Agreement nor any right created hereby or in any agreement entered into in connection with the transactions contemplated hereby shall be assignable by any party hereto without the prior written consent of the parties not seeking assignment, and any purported assignment without such consent shall be null and void and of no force or effect. No such assignment shall relieve the assignor of any obligations created under this Agreement.
11.2 Parties in Interest; No Third Party Beneficiaries. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the parties and their respective heirs, legal representatives, successors and permitted assigns. Neither this Agreement nor any other agreement contemplated hereby shall be deemed to confer upon any person not a party hereto or thereto any rights or remedies hereunder or thereunder, except as expressly set forth in this Agreement.
11.3 Entire Agreement. This Agreement and the agreements contemplated hereby constitute the entire agreement of the parties regarding the subject matter hereof, and supersede all prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.
11.4 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom. Further, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid and enforceable.
11.5 Survival of Representations, Warranties and Covenants. The representations, warranties and covenants of all parties contained herein shall survive the Closing, and all statements contained in any certificate, exhibit or other instrument delivered by or on behalf of the Company or Pacific LTDA, as the case may be, and, notwithstanding any provision in this Agreement to the contrary, shall survive the Closing.
11.6 Interpretation. This Agreement shall be governed by and construed under the laws of the State of Delaware with the exception that if any provision of this Agreement is deemed to be in conflict with any treaty duly ratified between the Government of the United States and the Government of Chile, including but not limited to tariff and trade agreements, tax treaties, general treaties of commerce and business, or if any provision of the Agreement is deemed to be in conflict with any pertinent provision of the Mining laws of Chile, then such provision shall be governed by and interpreted under the law of the specific treaty as ratified jointly by the governments, or in the case of a conflict of any of the provisions herein with any of the provisions of the Mining Law of Chile, then said provision shall be governed by and interpreted under the Mining Law of Chile.
11.7 Captions. The captions in this Agreement are for convenience of reference only and shall not limit or otherwise affect any of the terms or provisions hereof. Whenever the context requires, the gender of all words used herein shall include the masculine, feminine and neuter, and the number of all words shall include the singular and plural. Use of the words "herein", "hereof", "hereto" and the like in this Agreement shall be construed as references to this Agreement as a whole and not to any particular provision in this Agreement, unless otherwise noted.
11.8 Notice. Any notice or communication hereunder or in any agreement entered into in connection with the transactions contemplated hereby must be in writing and given by depositing the same in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, by telefax transmission or by delivery by use of a messenger which regularly retains its delivery receipts. Such notice shall be deemed received on the date on which it is delivered to the addressee. For purposes of notice, the addresses of the parties shall be, if to Interest Holders, sent to Pacific LTDA for forwarding, and:
| If to Pacific LTDA: | PACIFIC COPPER LTDA |
c/o Harold Gardner
22604 S. 215TH STREET
Queen Creek, AZ 85242
| If to Interest Holders: | c/o Harold Gardner |
22604 S. 215TH STREET
Queen Creek, AZ 85242
| If to Company: | 3430 E. Sunrise Drive, Suite 160 |
Tucson, AZ 85718
With copy to
1226 White Oaks Blvd., Ste 10A
Oakville, Ontario, Canada L6H 2B9
11.9 No Brokers: Each party represents and warrants to the others and agrees that it has not employed or engaged, and will not employ or engage, any person as a finder or broker in connection with the transactions contemplated herein, and that no person is entitled to compensation as a finder or broker. Each party hereby indemnifies the other parties and holds the other parties harmless from and against any claims of any third persons claiming to have acted as a finder or broker in connection with the transactions herein contemplated, and such indemnity shall include all expenses, costs and damages arising from or related to such claims, including reasonable attorneys' fees.
11.10 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by exchange of facsimile copies bearing facsimile signature of a party shall constitute a valid and binding execution and delivery of this Agreement by such party. Such facsimile copies shall constitute enforceable original documents. The Company shall be responsible to provide each party to the Agreement, a fully executed copy once all signatures have been received.
11.11 Prevailing Party (Attorneys' Fees) Clause. In the event of any litigation or proceeding arising as a result of the breach of this Agreement or the failure to perform hereunder, or failure or untruthfulness of any representation or warranty herein, the party or parties prevailing in such litigation or proceeding shall be entitled to collect the costs and expenses of bringing or defending such litigation or proceeding, including reasonable attorneys' fees, from the party or parties not prevailing.
11.12 Relationship of the Parties. Nothing in this Agreement is intended to be construed so as to suggest that the parties hereto are partners or joint ventures, or that any party or its employees is the employee or agent of the other. Neither Pacific LTDA nor the Company has any express or implied right or authority under this Agreement to assume or create any obligations on behalf of or in the name of the other party to any contract, agreement, arrangement, understanding or undertaking with any third party.
11.13 No Advice Given. Pacific LTDA and the Interest Holders acknowledge and agree that they have neither asked for nor received any legal or tax advice from the Company or its Directors or any other person associated with the Company in regard to this Agreement or the transactions herein contemplated, and have instead relied on advice and counsel furnished by their own legal or other advisers in order to satisfy themselves as to the tax and other legal implications to them of the Exchange and issuance of the Exchange Shares.
11.14 Expenses. Except as otherwise provided in this Agreement, Pacific LTDA shall bear the fees and expenses incurred in connection with its performance of its obligations as part of the transactions contemplated herein.
11.15 Acknowledgment by Interest Holders. The Interest Holders acknowledge and agree that their execution of this Agreement shall constitute a written consent in lieu of a meeting of the Interest Holders of Pacific LTDA, and that no meeting of or written consent or other action by the Interest Holders of Pacific LTDA is necessary to ratify the valid execution and performance of this Agreement and consummation of the Exchange by Pacific LTDA.
11.16 This Amended and Restated Share Exchange Agreement supersedes all prior agreements, written and oral between the parties hereto or other parties referred to in prior agreements.
Signatures on next page
IN WITNESS WHEREOF, all parties have executed this Agreement as of the date first written above;
| | PACIFIC COPPER CORP.
/s/ Andrew Brodkey Title: President Name: Andrew Brodkey
SOCIEDAD PACIFIC COPPER CHILE LIMITADA
/s/ Harold Gardner Name: Harold Gardner
THE INTEREST HOLDERS
/s/ Harold Gardner Harold Gardner
/s/Eduardo Esteffan Eduardo Esteffan
Woodburn Holdings Ltd.
/s/Robert Baker_ Robert Baker /s/ Guillermo Ortiz Guillermo Ortiz
/s/Eduardo Aguirre Eduardo Aguirre
/s/ Hector Olivares Hector Olivares |
Schedule A
| Name: | Pacific LTDA Interests | Exchange Shares |
| | | |
| Harold Gardner | 39.4% | 2,425,000 |
| | | |
| Woodburn Holdings Ltd. | 16.3% | 1,000,000 |
| | | |
| Eduardo Esteffan | 38.4% | 2,363,452 |
| | | |
| Guillermo Ortiz | 3.6% | 220,000 |
| | | |
| Eduardo Aguirre | .65% | 40,000 |
| | | |
| Hector Olivares | .65% | 40,000 |
Eduardo Esteffan will retain a 1% interest and deliver on closing 38.4 % for the Exchange Shares
Schedule 4.14
Property Description
CARRERA PINTO TURKEZA PROJECT |
| | | | | | | | | | Initial hect. | |
Property Name | Location | Property Type | UTM North | UTM East | Registration | Title | Nº | Mine Office | Filed | Net Hectares to P.C. |
TURKEZA DOS | Carrera Pinto | Exploration | 6.998.500,00 | 401.500,00 | 2007 | 5750 | 4482 | Copiapo | 300 | 300 |
TURKEZA TRES | Carrera Pinto | Exploration | 6.997.500,00 | 401.500,00 | 2007 | 5751 | 4483 | Copiapo | 300 | 230 |
TURKEZA CUATRO | Carrera Pinto | Exploration | 6.998.500,00 | 403.500,00 | 2007 | 5752 | 4484 | Copiapo | 300 | 220 |
| | | | | | | | | SUBTOTAL 1 | | 750 |
| | | | | | | | | | | |
CARRERA PINTO COBRIZO PROJECT |
| | | | | | | | | | Initial hect. | |
Property Name | Location | Property Type | UTM North | UTM East | Registration | Title | Nº | Mine Office | Filed | Net Hectares to P.C. |
COBRIZO VEINTIUNO | Carrera Pinto | Exploration | 6.999.500,00 | 408.000,00 | 2007 | 5753 | 4485 | Copiapo | 300 | 260 |
COBRIZO VEINTIDOS | Carrera Pinto | Exploration | 6.999.500,00 | 409.500,00 | 2007 | 5754 | 4486 | Copiapo | 300 | 240 |
COBRIZO VEINTITRES | Carrera Pinto | Exploration | 7.001.500,00 | 409.000,00 | 2007 | 5755 | 4487 | Copiapo | 200 | 200 |
COBRIZO UNO | Carrera Pinto | Exploration | 7.001.500,00 | 410.500,00 | 2007 | 6054 | 4750 | Copiapo | 300 | 300 |
COBRIZO DOS | Carrera Pinto | Exploration | 7.002.500,00 | 412.000,00 | 2007 | 6055 | 4751 | Copiapo | 200 | 200 |
COBRIZO TRES | Carrera Pinto | Exploration | 7.002.500,00 | 409.500,00 | 2007 | 6056 | 4752 | Copiapo | 300 | 300 |
COBRIZO CUATRO | Carrera Pinto | Exploration | 7.003.500,00 | 409.500,00 | 2007 | 6396 | 5032 | Copiapo | 300 | 200 |
COBRIZO CINCO | Carrera Pinto | Exploration | | | | | | | 300 | 300 |
COBRIZO SEIT | Carrera Pinto | Exploration | | | | | | | 300 | 0 |
COBRIZO SIETE | Carrera Pinto | Exploration | | | | | | | 300 | 0 |
| | | | | | | | | SUBTOTAL 2 | | 2,000 |
CERRO BLANCO PROJECT |
| | | | | | | | | | Initial hect. | |
Property Name | Location | Property Type | UTM North | UTM East | Registration | Title | Nº | Mine Office | Filed | Net Hectares to P.C. |
DON AUGUSTO | Cerro Blanco | Exploration | 6.903.500,00 | 385.000,00 | 2007 | 5756 | 4488 | Copiapo | 300 | 300 |
DON AUGUSTO UNO | Cerro Blanco | Exploration | 6.902.500,00 | 385.000,00 | 2007 | 5757 | 4489 | Copiapo | 300 | 300 |
DON AUGUSTO DOS | Cerro Blanco | Exploration | 6.903.000,00 | 383.000,00 | 2007 | 5758 | 4490 | Copiapo | 200 | 200 |
DON AUGUSTO TRES | Cerro Blanco | Exploration | 6.900.500,00 | 386.250,00 | 2007 | 5759 | 4491 | Copiapo | 300 | 60 |
DON AUGUSTO CUATRO | Cerro Blanco | Exploration | 6.900.500,00 | 385.250,00 | 2007 | 5760 | 4492 | Copiapo | 300 | 80 |
| | | | | | | | | SUBTOTAL 3 | | 940 |
| | | | | | | | | | | |
CARRIZAL ALTO PROJECT |
| | | | | | | | | | Initial hect. | |
Property Name | Location | Property Type | UTM North | UTM East | Registration | Title | Nº | Mine Office | Filed | Net Hectares to P.C. |
CARRIZON UNO | Carrizal Alto | Exploration | 6.892.000,00 | 316.000,00 | 2007 | 1063 | 547 | Freirina | 200 | 100 |
CARRIZON DOS | Carrizal Alto | Exploration | 6.894.000,00 | 315.500,00 | 2007 | 1064 | 548 | Freirina | 300 | 250 |
CARRIZON TRES | Carrizal Alto | Exploration | 6.894.000,00 | 316.500,00 | 2007 | 1065 | 549 | Freirina | 300 | 300 |
CARRIZON CUATRO | Carrizal Alto | Exploration | 6.897.000,00 | 315.700,00 | 2007 | 1066 | 550 | Freirina | 300 | 300 |
CARRIZON CINCO | Carrizal Alto | Exploration | 6.897.000,00 | 316.700,00 | 2007 | 1067 | 551 | Freirina | 300 | 200 |
| | | | | | | | | SUBTOTAL 4 | | 1150 |
| | | | | | | | | | | |
CARRIZAL ALTO PROJECT |
| | | | | | | | | | Initial hect. | |
Property Name | Location | Property Type | UTM North | UTM East | Registration | Title | Nº | Mine Office | Filed | Net Hectares to P.C. |
CARRIZO UNO | Carrizal Alto | Exploration | 6.892.500,00 | 310.000,00 | 2007 | 856 | 419 | Freirina | 300 | 40 |
CARRIZO DOS | Carrizal Alto | Exploration | 6.892.500,00 | 311.000,00 | 2007 | 857 | 420 | Freirina | 300 | 40 |
CARRIZO TRES | Carrizal Alto | Exploration | 6.894.500,00 | 310.500,00 | 2007 | 858 | 421 | Freirina | 200 | 80 |
| | | | | | | | | SUBTOTAL 5 | | 160 |
| | | | | | | | | | | |
| | | | | | | | | Total | | 5,000 |
