Exhibit 3.65
AGREEMENT OF PURCHASE AND SALE
between
VERTEX VENTURES INC.
and
OPUS MINERALS INC.
Dated as of the 17th day of January, 2000.
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE made as of the 17th day of
January, 2000.
BETWEEN:
VERTEX VENTURES INC., a public company incorporated pursuant to
the laws of the Province of Ontario
(hereinafter referred to as the "Purchaser")
OF THE FIRST PART
- and -
OPUS MINERALS INC., a public company incorporated
pursuant to the laws of the Province of Ontario
(hereinafter referred to as the "Vendor")
OF THE SECOND PART
WHEREAS:
A. The Vendor acquired from International Capri Resources Ltd.
("International Capri") certain soil/till samples and exploration,
evaluation, scientific and technical data relating to mineral
properties located on Baffin Island, Nunavut, Canada (the "Data")
pursuant to the terms of that certain asset sale agreement between TNK
Resources Inc., a predecessor of the Vendor, and International Capri
dated as of November 5, 1998 (the "International Capri Agreement").
B. In February, 1999, the Vendor was granted four exploration permits in
respect of mineral properties located on Baffin Island covering an
area of approximately 234,688 acres, all as more particularly
described in Schedule "A" attached hereto
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(which, together with the Data, shall be referred to herein as the
"Baffin Island Property");
C. The Baffin Island Property is subject to certain royalties (the
"Baffin Island Royalties") in favour of International Capri pursuant
to the terms of the International Capri Agreement and Paul W. Pitman
and Eric Craigie pursuant to an agreement between the Vendor and Paul
Pitman and Eric Craigie dated December 1, 1998 (the "Pitman/Craigie
Agreement");
D. The Vendor entered into an option and joint venture agreement dated
July 13, 1999 as amended by letter agreement dated August 26, 1999
(collectively, the "Baffin Island Joint Venture Agreement") in respect
of the Baffin Island Property with Mountain Province Mining Inc.
("Mountain Province"), a British Columbia public company listed on The
Toronto Stock Exchange, pursuant to which Mountain Province earned a
50% interest in the Baffin Island Property by spending $300,000 on
exploration expenditures on or in respect of the Baffin Island
Property (the "Baffin Island Joint Venture Interest") and subsequent
thereto the Vendor and Mountain Province formed a joint venture (the
"Baffin Island Joint Venture") in respect of the Baffin Island
Property pursuant to and in accordance with the terms of the Baffin
Island Joint Venture Agreement;
E. The Vendor owns, through its Botswana Subsidiaries (as hereafter
defined), exclusive rights to prospect for precious stones in nine (9)
individual contiguous tracts of land located in the Ghanzi District of
the Republic of Botswana, Africa, with a total area of approximately
2,277 km2, all as more particularly described in Schedule "B" attached
hereto (collectively, the "Gope Property");
F. In the first quarter of 1998, the Vendor entered into three (3)
separate joint venture agreements (the "Gope Joint Venture
Agreement") with DeBeers Prospecting Botswana (Proprietary) Limited
("DeBeers Botswana") in respect of the Gope Property (the "Gope Joint
Venture");
G. The Vendor's right, title and interest in and to the Baffin Island
Property and in and to the Gope Property, together with any and all
rights, privileges and benefits
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arising therefrom or incidental thereto, shall be referred to herein
collectively as the "Properties";
H. The Vendor has agreed to sell and the Purchaser has agreed to purchase
all of the Vendor's right, title, interest and estate in and to the
Properties, subject to the Permitted Encumbrances (as that term is
hereinafter defined) in accordance with the subject to the term of
this Agreement;
I. Furthermore, contemporaneously with the aforesaid purchase and sale of
the Properties, the Purchaser and the Vendor have agreed to convert
the Purchaser's outstanding debt to the Vendor of $265,000 into common
shares of the Purchaser on the terms and conditions set out in this
Agreement; and
J. The Vendor currently owns approximately 64% of the issued and
outstanding shares of the Purchaser and the board of directors of the
Vendor and the Purchaser are identical and, as a result, the Vendor
and the Purchaser are "related parties" pursuant to Ontario Securities
Commission Policy 9.1.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and of the mutual covenants and agreements hereinafter contained and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by each of the parties hereto, the parties agree as
follows:
ARTICLE I
INTERPRETATION
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1.1 Definitions
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In this Agreement, unless the context otherwise requires, the following
words and terms set forth in this Article I shall have the meanings respectively
assigned to them:
(a) "Agreement" means this Agreement and all instruments supplemental
hereto or in amendment or confirmation hereof; "herein" and similar
expressions mean and refer to this Agreement and not to any particular
article, section, clause or subclause, "Section", "clause" or
"subclause" means and refers to the specified article, section,
clause or subclause of this Agreement;
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(b) "Assumed Contracts" in respect of:
(i) the Baffin Island Property means:
(A) the International Capri Agreement;
(B) the Pitman/Craigie Agreement;
(C) the Baffin Island Joint Venture Agreement;
(D) Exploration Permit Nos. 2265, 2266, 2267 and 2268; and
(E) such other agreements and contracts affecting the Baffin
Island Property to be assigned by the Vendor and assumed by
the Purchaser in connection with the purchase and sale of
the Baffin Island Property as may to be necessary to give
full effect to the transactions contemplated hereby; and
(ii) the Gope Property means:
(A) the Gope Joint Venture Agreements;
(B) Prospecting Permit Nos. 142/93, 143/93, 145/93, 146/93.
147/93, 148/93, 149/93 and 67/97; and
(C) such other agreements and contracts affecting the Gope
Property to be assigned by the Vendor and assumed by the
Purchaser in connection with the purchase and sale of the
Gope Property as may to be necessary to give full effect to
the transactions contemplated hereby;
(c) "Baffin Island Property" has the meaning ascribed thereto in Recital B
above;
(d) "Baffin Island Joint Venture" has the meaning ascribed thereto in
Recital D above;
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(e) "Baffin Island Joint Venture Agreement" has the meaning ascribed
thereto in Recital D above;
(f) "Baffin Island Joint Venture Interest" has the meaning ascribed
thereto in Recital D above;
(g) "Baffin Island Royalties" has the meaning ascribed thereto in Recital
C above, reserved and/or granted in respect of the Baffin Island
Property pursuant to the terms of the International Capri Agreement
and the Pitman/Craigie Agreement;
(h) "Botswana Subsidiaries" means the following three (3) wholly-owned
private companies incorporated by the Vendor under the laws of the
Republic of Botswana, Africa for the purpose of holding the Vendor's
interests in and to the Gope Property:
(i) TNK Area 1 (Proprietary) Limited;
(ii) TNK Area 2 (Proprietary) Limited; and
(iii) TNK Area 3 (Proprietary) Limited.;
(i) "Business Day" means a day other than a Saturday or Sunday on which
the principal commercial banks located in Toronto, Ontario are open
for business during normal banking hours;
(j) "CDN" means The Canadian Dealing Network Inc.;
(k) "Closing" means the completion of the transaction contemplated by this
Agreement which shall take place at 10:00 a.m. on the Closing Date at
the offices of Weir & Foulds in Toronto, Ontario;
(l) "Closing Date" means February 22, 2000, or such earlier or later date
as may be mutually agreed to by the parties in writing;
(m) "Data" has the meaning ascribed thereto in Recital A above;
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(n) "DeBeers Botswana" means DeBeers Prospecting Botswana (Proprietary)
Limited, a Botswana corporation;
(o) "Debt" has the meaning ascribed thereto in Section 2.4 below;
(p) "Debt Conversion" has the meaning ascribed thereto in Section 2.4
below;
(q) "Debt Shares" has the meaning ascribed thereto in Section 2.4 below;
(r) "Effective Date" means the date first written above;
(s) "Funding Deadline" has the meaning ascribed thereto in Section 2.5
below;
(t) "Gope Joint Venture Agreements" means those certain joint venture
agreements between the Vendor and DeBeers in respect of the Gope
Property as referred to in Recital F above;
(u) "Gope Joint Ventures" has the meaning ascribed thereto in Recital F
above;
(v) "Gope Property" has the meaning ascribed thereto in Recital E above;
(w) "Interim Period" means the period from the Effective Date to the
Closing Date;
(x) "International Capri" means International Capri Resources Ltd., a
corporation incorporated pursuant to the laws of the Province of
British Columbia;
(y) "International Capri Agreement" has the meaning ascribed thereto in
Recital C above;
(z) "Mining Authorities" means all governmental and other regulatory
authorities having jurisdiction or governance over or in respect of
the Baffin Island Property and the Gope Property;
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(aa) "Mountain Province" means Mountain Province Mining Inc., a corporation
incorporated pursuant to the laws of the Province of British Columbia;
(bb) "OSA" means the Ontario Securities Act and all regulations, rules and
policies related thereto;
(cc) "OSC" means the Ontario Securities Commission;
(dd) "Permitted Encumbrances" means, in respect of:
(i) the Baffin Island Property, the following:
(A) all liens for taxes, rates, assessments, government charges
or levies not yet due;
(B) all reservations, limitations, provisos and conditions
expressed in the original grant from the Crown as varied by
statute;
(C) all rights, interests, charges and encumbrances disclosed by
the public record;
(D) any rights to easements, rights of access, rights of way,
servitudes, restrictive covenants or other similar rights in
land not disclosed by the public record of which the Vendor
does not have notice or which have been disclosed in writing
to the Purchaser prior to Closing;
(E) all defects or irregularities disclosed by an existing
survey or that would be disclosed by an up-to-date survey;
(F) the Baffin Island Royalties;
(G) the Baffin Island Joint Venture;
(H) the Baffin Island Joint Venture Agreement;
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(I) the International Capri Agreement;
(J) the Pitman/Craigie Agreement; and
(K) all restrictions, limits, terms and conditions set out in
Exploration Permits Nos. 2265, 2266, 2267 and 2268.
(ii) the Gope Property, the following:
(A) liens for taxes, rates, assessments, government charges or
levies not yet due;
(B) all rights, interests, charges and encumbrances disclosed by
the public record;
(C) any rights to easements, rights of access, rights of way,
servitudes, restrictive covenants or other similar rights in
land not disclosed by the public record of which the
Purchaser does not have notice or which have been disclosed
in writing to the Vendor prior to Closing;
(D) all defects or irregularities disclosed by an existing
survey or that would be disclosed by an up-to-date survey;
(E) the Gope Joint Ventures;
(F) the Gope Joint Venture Agreements; and
(G) all restrictions, limits, terms and conditions set out in
Prospecting Permit Nos. 142/93, 143/94, 144/93, 145/93,
146/93, 147/93, 148/93, 149/93 and 67/97;.
(ee) "Person" means any individual, corporation, partnership,
unincorporated syndicate, unincorporated organization, trust, trustee,
executor, administrator or other legal representative;
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(ff) "Pitman/Craigie Agreement" has the meaning ascribed thereto in Recital
C above;
(gg) "Properties" means the Vendor's right, title and interest in and to
the Baffin Island Property and in and to the Gope Property, together
with any and all rights, privileges and benefits arising therefrom or
incidental thereto;
(hh) "Purchase Price" has the meaning ascribed to it in Section 2.2 hereof;
(ii) "Purchaser's Documents" has the meaning ascribed to it in Section 6.2
hereof;
(jj) "Purchaser's Conditions Precedent" means those certain conditions
precedent to the completion of the transactions contemplated hereunder
for the sole benefit of the Purchaser set out in Section 7.1 hereof;
(kk) "Regulatory Body" and "Regulatory Bodies" means the CDN, OSC and
Mining Authorities, together with any other governmental or regulatory
bodies or authorities having jurisdiction or governance over or in
respect of the Vendor, Purchaser or Properties;
(ll) "Required Approvals" means any and all approvals and consents that may
be required to complete the transactions contemplated by this
Agreement in accordance with all applicable corporate, mining and
securities laws governing or regulatory same, including, without
limitation, all Regulatory Body, Third Party and shareholder
approvals;
(mm) "Third Party" means any Person other than the parties to this
Agreement and includes International Capri, Mountain Province, Paul W.
Pitman and Eric Craigie;
(nn) "Valuation Report" means that certain valuation report dated December
31, 1999 in respect of the Properties prepared by MPH Consulting
Limited, an independent valuator, pursuant to OSC Policy 9.1;
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(oo) "Vendor's Conditions Precedent" means those certain conditions
precedent to the completion of the transactions contemplated hereunder
for the sole benefit of the Vendor set out in Section 7.2 hereof; and
(pp) "Vendor's Documents" has the meaning ascribed to it in Section 6.1
hereof.
1.2 Other Definitions
-----------------
Any words or expressions defined otherwise in this Agreement including the
Schedules shall have the meanings respectively assigned to them notwithstanding
that such definition does not appear in this Article 1. When used in the
Schedules annexed hereto, terms defined in this Agreement shall have the same
meaning unless the Schedules expressly otherwise define such terms. In case of
any other inconsistency between the terms of this Agreement and the Schedules
annexed hereto, the terms of this Agreement shall prevail.
1.3 Headings
--------
The Table of Contents to this Agreement, if any, together with the
Articles, Sections, Sub-Sections, Paragraphs and Headings contained herein are
included solely for convenience and are not intended to be full or accurate
descriptions of the content thereof and shall not be considered part of this
Agreement. "Article", "Section", "Sub-section", "Paragraph" or "Schedule" means
and refers respectively to the specified Article, Section, Sub-section or
Schedule of this Agreement. "Hereof", "hereto" and "hereunder" and similar
expressions mean and refer to this Agreement and not to any particular Article,
Section or Sub-section.
1.4 Gender and Number
-----------------
Words importing the singular include the plural and vice versa. Words
importing gender include all genders. Words importing persons shall include
firms and corporations and vice versa.
1.5 Entire Agreement
----------------
With respect to the subject matter of this Agreement, this Agreement:
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(a) sets forth the entire agreement between the parties hereto and any
persons who have in the past or who are now representing either of
the parties hereto;
(b) supersedes all prior understandings and communications between the
parties hereto or any of them, oral or written; and
(c) constitutes the entire agreement between the parties hereto.
Each party hereto acknowledges and represents that this Agreement is
entered into after full investigation and that no party is relying upon any
statement or representation made by the other of them or by any other person
which is no embodied in this Agreement. Each party hereto acknowledges that he
or it shall have no right to rely upon any amendment, promise, modification,
statement or representation made or occurring subsequent to the execution of
this Agreement unless the same is in writing and executed by each of the parties
hereto.
1.6 Currency
--------
Unless otherwise indicated all dollar amounts referred to in this Agreement
are in Canadian funds.
1.7 Time of the Essence
-------------------
Time shall be of the essence of this Agreement and of every part hereof and
no extension or variation of this Agreement shall operate as a waiver of this
provision.
1.8 Governing Law
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This Agreement shall be interpreted and construed in accordance with the
laws of the Province of Ontario and the federal laws of Canada applicable
therein (but without giving effect to any conflict of law rules) and shall be
treated in all respects as an Ontario contract. The parties hereto agree that
the Courts of Ontario shall have jurisdiction to entertain any action or other
legal proceedings based on any provisions of this Agreement. Each party hereto
does hereby attorn to the jurisdiction of the Courts of the Province of Ontario.
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1.9 Successors and Assigns
----------------------
This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and assigns.
1.10 Further Assurances
------------------
Each party hereto agrees from time to time, subsequent to the date hereof,
to execute and deliver or cause to be executed and delivered to the other such
instruments or further assurances as may, in the reasonable opinion of the
other, be necessary or desirable to give effect to the provisions of this
Agreement or as may be reasonably required for registering or recording changes
in ownership interests in the Properties.
1.12 Third Party Transfers of the Properties
---------------------------------------
It is hereby understood and agreed that the Purchaser may at any time
sell, transfer or otherwise dispose of all or any portion of its interest in and
to the Properties to any other Person or entity at the sole discretion of the
Purchaser without the Vendor's consent, provided that in the event of any sale,
transfer or other disposition of any nature or kind whatsoever by the Purchaser
of the Properties or any interest therein or any part thereof to a party other
than the Vendor or Archibald (a "Third Party Purchaser"), the Purchaser will:
(a) comply with the Permitted Encumbrances including, without limitation,
the payment of the Baffin Island Royalties in accordance with its
terms; and
(b) ensure that in any agreement or deed of sale, assignment or
disposition of the Properties or any part thereof to a Third Party
purchaser a covenant which would bind the Third Party Purchaser and
its heirs, administrators, successors and assigns to the same
obligations and effect as this subsection is contained therein.
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ARTICLE II
TRANSACTIONS
------------
2.1 Purchase and Sale
-----------------
Subject to the terms and conditions hereof, the Vendor agrees to sell to
the Purchaser and the Purchaser agrees to purchase from the Vendor all of the
Vendor's right, title, estate and interest in and to the Properties, subject to
the Permitted Encumbrances, on the Closing Date in consideration of the Purchase
Price. The parties acknowledge and agree that the Vendor's right, title and
interest in and to the Gope Property, which is held by its wholly-owned Botswana
Subsidiaries, shall be conveyed and transferred to the Purchaser through the
transfer by the Vendor to the Purchaser of all of the issued and outstanding
ordinary shares of each of the Botswana Subsidiaries.
2.2 Purchase Price
--------------
The purchase price for the purchase and sale of the Purchased Assets shall
be $675,000.00 in the aggregate (the "Purchase Price"), payable to the Vendor in
accordance with the provisions of Section 2.3 and allocated between the Vendor's
interest in the Baffin Island Property and its interest in the Gope Property as
follows:
Property Allocation in Purchase Price
-------- ----------------------------
Baffin Island Property (50% interest) $325,000
Gope Property (100% interest) 350,000
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Total: $675,000
========
2.3 Payment of Purchase Price
-------------------------
The Purchase Price shall be paid and satisfied in full by the Purchaser on
the Closing Date by the issuance and delivery by the Purchaser to the Vendor of
a total of Four Million Five Hundred Thousand (4,500,000) duly issued, fully
paid non-assessable common shares in the capital stock of the Purchaser (the
"Payment Shares"), at an attributed value of $0.15 per Payment Share, subject to
and in accordance with the provisions of this Agreement.
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2.4 Conversion of Debt
------------------
Contemporaneous with the completion of the purchase and sale of the
Properties as contemplated herein, the parties further agree that on the Closing
Date the Purchaser shall convert its outstanding debt to the Vendor (the "Debt
Conversion") in the amount of $265,000 (the "Debt") into 1,766,667 additional
duly issued, fully paid non-assessable common shares in the capital of the
Purchaser (the "Debt Shares") at an attributed conversion rate of $0.15 per Debt
Share, in full re-payment and satisfaction of the Debt.
2.5 Continual Funding
-----------------
The parties acknowledge and agree that the Vendor shall continue to fund
the financial obligations of the Purchaser to the extent required for a period
of up to ninety (90) days from the Closing Date or until the Purchaser has
completed a private placement funding, whichever occurs first (the "Funding
Deadline"). The Purchaser agrees to repay all such obligations that are funded
by the Vendor from the Closing Date to the Funding Deadline forthwith upon
completion of its private placement funding. Notwithstanding any other provision
herein, the Purchaser acknowledges and agrees that the Vendor will no longer be
in a position to further fund the obligations of the Purchaser from and after
the Funding Deadline.
ARTICLE III
CLOSING
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3.1 Closing
-------
In the event that the purchase transaction contemplated under Section 2.1
hereof cannot close by February 29, 2000 due to the failure to obtain any of the
Required Approvals to the transactions contemplated herein, or due to the
failure of each of the conditions precedent set out in Section 7.1 or 7.2 hereof
not having been either satisfied or waived by the Purchaser or the Vendor in
writing, as the case may be, then subject to the parties otherwise agreeing in
writing and except as concerns covenants, warranties, representations or other
obligations breached prior to such time, this Agreement shall terminate without
any party incurring any liability to any other party, and all parties shall bear
their own costs in connection with the transactions contemplated by this
Agreement.
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
------------------------------------------
4.1 Representations, Warranties and Covenants by the Vendor to the Purchaser
------------------------------------------------------------------------
As a material inducement to E21 entering into this Agreement and
consummating the transaction contemplated hereby and acknowledging that E21 is
entering into this Agreement in reliance upon the representations, warranties
and covenants of Elliott and Schepp hereinafter set forth, Elliott and Schepp
each hereby represent and warrant to and covenant with E21 that, as at the
Effective Date (which representations, warranties and covenants shall also be
true or satisfied at the Closing Date):
(a) Recitals. The recitals, to the extent that they apply to the Vendor,
---------
are true and correct.
(b) Title. The Vendor is the beneficial owner of a 50% interest in and to
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the Baffin Island Property and, through its Botswana Subsidiaries, a
100% interest in and to the Gope Property, in both cases free and
clear of any and all royalties, liens, defects, charges and
encumbrances of any kind or nature whatsoever, whether written or
oral, save and except for the Permitted Encumbrances.
(c) Possession. The Vendor, either directly or through its Botswana
-----------
Subsidiaries, is in exclusive possession of the Properties, subject to
the Permitted Encumbrances.
(d) Status. The Vendor is a corporation duly formed and organized under
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the laws of the Province of Ontario and is validly subsisting and in
good standing under such laws and has the necessary corporate power
and authority to own the interests in the Properties and to deal with
the Properties as contemplated in this Agreement.
(e) Botswana Subsidiaries. The Vendor is the sole registered and
----------------------
beneficial owner of all 277 issued and outstanding ordinary shares in
the capital stock of each of the Botswana Subsidiaries, save and
except for 1 ordinary share
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of each registered in the name of Elizabeth Kirkwood as nominee of the
Vendor, free and clear of any and all liens, charges and encumbrances
of any nature of kind whatsoever and no other person or entity has any
right, title or interest, contingent or otherwise, in the said shares,
save and except for the interests of DeBeers Botswana pursuant to the
terms of the Gope Joint Venture Agreements;
(f) Authorization and Enforceability. Subject to obtaining the Required
---------------------------------
Approvals, this Agreement and the consummation of the transactions
contemplated thereby have been duly authorized, executed and delivered
by, and constitutes a legal, valid, binding and enforceable obligation
of, the Vendor in accordance with its terms, but subject to
limitations with respect to enforcement imposed in connection with
laws affecting the rights of creditors generally including, without
limitation, applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws and to the extent equitable remedies
such as specific performance and injunction are in the discretion of
the court from which they are sought.
(g) No Violation. Neither the execution nor delivery of this Agreement,
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nor the consummation of the transactions contemplated hereby, nor
compliance with and fulfilment of the terms and provisions of this
Agreement will:
(i) conflict with or result in a breach of the terms, conditions or
provisions of, or constitute a default under:
(A) any of the constating documents or by-laws of the Vendor; or
(B) any instrument, agreement, mortgage, judgment, order, award,
decree or other instrument or restriction to which the
Vendor is a party of or by which it is bound; or
(ii) require any affirmative approval, consent, authorization or other
order or action by any court, governmental authority or
regulatory body or by any creditor of the Vendor or any party to
any agreement to which the Vendor is a party or by which the
Vendor is bound, except as shall have been obtained prior to
Closing.
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(h) Power and Authority. Subject to obtaining the Required Approvals, the
--------------------
Vendor has the full and undisputed power, authority and right to enter
into and perform its obligations under this Agreement and to assign,
transfer and convey its entire right, title, estate and interest in
and to the Properties to the Purchaser as provided herein.
(i) No Encumbrances. Other than the Permitted Encumbrances, the Vendor
----------------
has not made, committed, executed or suffered any act, deed, matter or
thing whereby its interest in the Properties may be affected or
encumbered in title or otherwise.
(j) Compliance. The Properties are in compliance with the mining laws of
-----------
the jurisdiction in which they are located, including, all applicable
reclamation and environmental laws, rules, regulations, orders,
judgments and decrees.
(k) Residency. The Vendor is not a non-resident for purposes of section
----------
116 of the Income Tax Act (Canada).
(l) Bulk Sales. The sale, transfer, assignment and conveyance of the
-----------
Vendor's interest in and to the Properties by the Vendor to the
Purchaser herein is exempt from the application of any bulk sales
provisions of all jurisdictions in Canada.
(m) Consents and Approvals. Other than the Required Approvals, no
-----------------------
consent, licence, approval, order or authorization of, or
registration, filing or declaration with any governmental authority
that has not been obtained or made by the Vendor and no consent of any
Third Party is required to be obtained by the Vendor in connection
with the execution, delivery and performance by the Vendor of this
Agreement or the consummation of the transactions contemplated hereby.
(n) No Actions or Proceedings. There is no action, lawsuit, claim,
--------------------------
proceeding, or investigation pending or, to the best knowledge of the
Vendor, threatened against, relating to or affecting the Vendor or the
Properties before any court, government agency, or any arbitrator of
any kind. The Vendor is not aware of any existing ground on which any
such proceeding might be commenced with any reasonable likelihood of
success; and there is not
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presently outstanding against the Vendor any judgment, decree,
injunction, rule or order of any court, governmental agency, or
arbitrator relating to or affecting the Vendor or in connection with
the Properties.
(o) Compliance with Contracts. The Vendor is not in material default
--------------------------
under any of the Assumed Contracts or any other contract, lease,
licence, engagement agreement, commitment, indenture or other
instrument relating to or affecting the Properties, whether written or
oral, including, without limitation, those referred to in the
Schedules hereto to which it is a party and there exists no state of
facts which after notice or lapse of time or both would constitute
such a material default and all such contracts, leases, licence,
engagements, agreements, commitments, indentures or other instruments
relating to or affecting the Properties are now in good standing and
in full force and effect and the Vendor is entitled to all rights and
benefits thereunder.
(p) Taxes. All taxes, assessments and other charges levied on the
------
Properties or any part thereof have been paid up to and including the
Closing Date.
(q) Press Release. The Vendor will confer and co-operate, acting
--------------
reasonably and in good faith, with the Purchaser in respect of the
preparation of any proposed press releases relating to the
transactions contemplated by this Agreement, if any.
(r) Assignment and Assumption of the Assumed Contracts. In respect of the
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Assumed Contracts (other than the joint venture agreement with DeBeers
in respect of Area 1 of the Gope Property which has been terminated by
the parties thereto):
(i) the Vendor has not received any notice of default of any of the
terms or provisions of any of the Assumed Contracts;
(ii) each of the Assumed Contracts is a good, valid and subsisting
agreement in good standing enforceable against each of the
parties thereto in accordance with the terms thereof, and all
royalties and other payments reserved thereby due and owing have
been duly paid
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by the Vendor and all covenants and conditions therein contained
have been duly observed and performed by the Vendor;
(iii) each of the Assumed Contracts is in full force and effect,
unchanged and unmodified; and
(iv) there is no outstanding dispute under any of the Assumed
Contracts among the parties thereto and there is no known
default on the part of the Vendor thereunder or any other party
thereto.
4.2 Representations, Warranties and Covenants by the Purchaser to the Vendor
------------------------------------------------------------------------
As a material inducement to the Vendor entering into this Agreement and
consummating the transaction contemplated hereby and acknowledging that the
Purchaser is entering into this Agreement in reliance upon the representations,
warranties and covenants of the Purchaser hereinafter set forth, the Purchaser
hereby represents and warrants to and covenants with the Vendor that, as at the
Effective Date (which representations, warranties and covenants shall also be
true or satisfied at the Closing Date):
(a) Recitals. The recitals, to the extent that they apply to the
---------
Purchaser, are true and correct.
(b) Status. The Purchaser is a corporation duly incorporated and
-------
organized under the laws of the Province of Ontario and is validly
subsisting and in good standing under such laws and has the necessary
corporate power and authority to enter into this Agreement and
complete the transactions contemplated thereby.
(c) Authorization and Enforceability. Subject to obtaining the Required
---------------------------------
Approvals, this Agreement and the consummation of the transactions
completed thereby have been duly authorized, executed and delivered
by, and constitutes a legal, valid, binding and enforceable obligation
of, the Purchaser in accordance with its terms, but subject to
limitations with respect to enforcement imposed in connection with
laws affecting the rights of creditors generally including, without
limitation, applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws and
-20-
to the extent equitable remedies such as specific performance and
injunction are in the discretion of the court from which they are
sought.
(d) No Violation. Neither the execution nor delivery of this Agreement,
-------------
nor the consummation of the transactions contemplated hereby, nor
compliance with and fulfilment of the terms and provisions of this
Agreement will:
(i) conflict with or result in a breach of the terms, conditions or
provisions of, or constitute a default under:
(A) any of the constating documents or by-laws of the Purchaser;
or
(B) any instrument, agreement, mortgage, judgment, order, award,
decree or other instrument or restriction to which the
Purchaser is a party of or by which it is bound; or
(ii) require any affirmative approval, consent, authorization or other
order or action by any court, governmental authority or
regulatory body or by any creditor of the Purchaser or any party
to any agreement to which the Purchaser is a party or by which
the Purchaser is bound, except as shall have been obtained prior
to Closing.
(e) Power and Authority. Subject to obtaining the Required Approvals, the
--------------------
Purchaser has the full and undisputed power, authority and right to
enter into and perform its obligations under this Agreement and to
issue the Payment Shares and the Debt Shares to the Vendor as
contemplated herein.
(f) Consents and Approvals. Other than Required Approvals, no consent,
-----------------------
licence, approval, order or authorization of, or registration, filing
or declaration with any governmental authority that has not been
obtained or made by the Purchaser and no consent of any Third Party is
required to be obtained by the Purchaser in connection with the
execution, delivery and performance by the Purchaser of this Agreement
or the consummation of the transactions contemplated hereby.
(g) Press Releases. The Purchaser will confer and co-operate, acting
---------------
reasonably and in good faith, with the Vendor in respect of the
preparation of any
-21-
proposed press releases relating to the transactions contemplated by
this Agreement, if any.
(h) Due Issuance. When issued to the Vendor in accordance with the terms
-------------
of this Agreement, the Payment Shares and the Debt Shares shall be
duly issued as fully paid non-assessable common shares in the capital
stock of the Purchaser.
(i) Reporting Issuer Status and Quotation. The Purchaser is a reporting
--------------------------------------
issuer in good standing in the Province of Ontario and its common
shares are quoted for trading by CDN.
4.3 Survival of Representations, Warranties and Covenants
-----------------------------------------------------
The representations, warranties and covenants of the parties contained in
this Agreement and in any document or certificate given pursuant hereto shall
survive for a period of two (2) years from the Closing Date. After which time,
if prior to the expiry of the applicable warranty period, no claim shall have
been made hereunder by a party with respect to any incorrectness in or breach of
any such representations, warranties or covenants made herein by any of the
other party, then such other party shall have no further liability hereunder
with respect to such representations, warranties or covenants.
4.4 Indemnification by the Vendor
-----------------------------
The Vendor covenants and agrees to indemnify and save harmless the
Purchaser, its officers, directors and shareholders from and against any and all
claims, losses, liabilities, obligations, damages, fees, fines, penalties,
interests, deficiencies, costs or expenses, of any nature or kind whatsoever
(collectively the "Claims"), arising by virtue or in respect of any inaccuracy,
misstatement, misrepresentation or omission made by the Vendor in connection
with any matters set out herein, and any and all actions, suits, proceedings,
demands, claims, costs, legal and other expenses related or incidental thereto.
Furthermore, the Vendor covenants and agrees to indemnify and save harmless
the Purchaser, its respective officers, directors and shareholders, from and
against any Claim, directly or indirectly incurred or asserted by or against the
Purchaser or its officers, directors or shareholders, as the case may be, after
the Closing Date relating to, arising out of, resulting from or in any way
connected with, directly or indirectly, any and all of the
-22-
Vendor's obligations under the Permitted Encumbrances prior to the Closing Date
and any and all actions, suits, proceedings, demands, claims, costs, legal and
other expenses incidental thereto.
4.5 Indemnification by the Purchaser
--------------------------------
The Purchaser covenants and agrees to indemnify and save harmless the
Vendor, its officers, directors and shareholders and against any and all Claims
arising by virtue or in respect of any inaccuracy, misstatement,
misrepresentation or omission made by the Purchaser in connection with any
matters set out herein, and any and all actions, suits, proceedings, demands,
claims, costs, legal and other expenses related or incidental thereto.
Furthermore, the Purchaser covenants and agrees to indemnify and save
harmless the Vendor, its respective officers, directors and shareholders, from
and against any Claim, directly or indirectly incurred or asserted by or against
the Vendor or its officers, directors or shareholders, as the case may be, after
the Closing Date relating to, arising out of, resulting from or in any way
connected with, directly or indirectly, any and all of the Purchaser's
obligations under the Permitted Encumbrances after the Closing Date and any and
all actions, suits, proceedings, demands, claims, costs, legal and other
expenses incidental thereto.
4.6 Survival of Indemnities
-----------------------
The indemnities provided herein will remain in full force and effect until
all possible liabilities of the Persons indemnified thereby arising out of the
transactions contemplated by this Agreement are extinguished by the operation of
law and will not be limited to or affected by any other indemnity obtained by
such indemnified Persons from any other Person.
4.7 Limitations on Indemnifications
-------------------------------
Each of the foregoing indemnifications applies only to the extent that the
Claims suffered or incurred by the injured party within the term period set out
in Section 4.3 above have not arisen as a result of its own negligence or wilful
misconduct, or as a result of the breach of any of its own covenants,
warranties, representations or other obligations under this Agreement.
-23-
4.8 Non-Waiver
----------
No investigations made by or on behalf of either of the parties hereto at
any time shall have the effect of waiving, diminishing the scope of or otherwise
affecting any representation, warranty or covenant made by the other party
herein or pursuant hereto. No waiver by either of the parties hereto of any
condition herein, in whole or in part, shall operate as a waiver of any other
condition herein.
ARTICLE V
INTERIM PERIOD
--------------
5.1 Purchaser's Examination
-----------------------
The Vendor covenants and agrees during the Interim Period, if and as
requested by the Purchaser, to make or cause to be made available for the review
by the Purchaser and its agents and servants, all agreements, correspondence,
reports, records and other documents and materials which in any manner relate to
or affect the Properties and to which the Vendor has or can obtain access,
including, without limitation, all geological and engineering reports, records,
logs and drawings to which the Vendor has or can obtain access.
5.2 Vendor's Conduct
----------------
The Vendor covenants and agrees during the Interim Period to continue to
ensure that the Properties are maintained in a proper and prudent manner in
accordance with good mining industry standards and practices and shall not,
without the prior written consent of the Purchaser:
(a) propose or initiate any operations in respect of the Properties;
(b) surrender or abandon the Properties or any of them; or
(c) enter into or amend any agreement or instrument materially affecting
or relating to the Properties or any of them.
-24-
5.3 Vendor's Required Consent
-------------------------
The Vendor will give its consent (and provide such reasonable assurances as
may be required) and the Vendor shall use its best efforts to obtain (including
the provision of such reasonable assurances as may be required), any and all
consents and required approvals, including the Required Approvals, of all other
Persons to the transactions contemplated by this Agreement, as may be required
pursuant to any statute, law or ordinance or by any governmental or other
regulatory authority having jurisdiction, including any Regulatory Body, as
expeditiously as possible, and the Vendor will pay the cost of soliciting any
such approvals or consents. The Purchaser will cooperate in obtaining such
consents and approvals to the extent reasonably necessary and without material
financial obligation.
5.4 Purchaser's Required Consent
----------------------------
The Purchaser will give its consent (and provide such reasonable assurances
as may be required) and the Purchaser shall use its best efforts to obtain
(including the provision of such reasonable assurances as may be required), any
and all consents and required approvals, including the Required Approvals, of
all other Persons to the transactions contemplated by this Agreement, as may be
required pursuant to any statute, law or ordinance or by any governmental or
other regulatory authority having jurisdiction, including any Regulatory Body,
as expeditiously as possible, and the Purchaser will pay the cost of soliciting
any such approvals or consents. The Vendor will cooperate in obtaining such
consents and approvals to the extent reasonably necessary and without material
financial obligation.
5.5 Support of Transactions by the Vendor
-------------------------------------
The Vendor agrees to use its best efforts to cause each of its directors,
officers, employees, shareholders, representatives, agents, advisers,
accountants and attorneys to support the transactions contemplated by this
Agreement and agrees not to take any steps which may, directly or indirectly,
diminish in any manner whatsoever the likelihood of the completion of the
transactions contemplated hereunder.
-25-
5.6 Support of Transactions by the Purchaser
----------------------------------------
The Purchaser agrees to use its best efforts to cause its directors,
officers, employees, shareholders, representatives, agents, advisers,
accountants and attorneys to support the transactions contemplated by this
Agreement and agrees not to take any steps which may, directly or indirectly,
diminish in any manner whatsoever the likelihood of the completion of the
transactions contemplated hereunder.
ARTICLE VI
CLOSING DOCUMENTS
6.1 Vendor's Closing Documents
--------------------------
The Vendor covenants and agrees to deliver or cause to be delivered to the
Purchaser fully executed copies of the following documents on or before the
Closing Date in form satisfactory to the Purchaser, acting reasonably
(collectively, the "Vendor's Documents"):
(a) specific conveyances of the Properties in favour of the Purchaser in
registerable form, if necessary;
(b) a general conveyance conveying all of the Vendor's right, title,
estate and interest in and to the Properties and Botswana Subsidiaries
to the Purchaser effective as at the Closing Date;
(c) share certificates representing all 277 ordinary shares of each of the
Botswana Subsidiaries, duly endorsed in blank for transfer, together
with an instrument of stock transfer in respect of same;
(d) newly issued share certificates from each of the Botswana Subsidiaries
representing 276 ordinary shares of each registered in the name of the
Purchaser and 1 ordinary share of each registered in the name of
Elizabeth Kirkwood, as nominee of the Purchaser;
(e) a certified resolution of the board of directors of each of the
Botswana Subsidiaries authorizing and approving the transfer of
ordinary shares of each of the Vendor to the Purchaser;
(f) an assignment and assumption agreement in respect of the Assumed
Contracts;
-26-
(g) that portion of the Data in the Vendor's possession or control;
(h) a receipt issued to the Purchaser in respect of payment in full of the
Debt by the Purchaser;
(i) a certificate of a director or senior officer of the Vendor certifying
that the Vendor is not a non-resident within the meaning of Section
116 of the Income Tax Act (Canada);
(j) a certificate of the Vendor dated as of the Closing Date certifying
that, except as noted in such certificate:
(i) all the representations and warranties of the Vendor set forth in
this Agreement are true and correct as at the Closing Date; and
(ii) all the terms, covenants and agreements set forth in the
Agreement to be complied with or performed by the Vendor at or
prior to the Closing Date have been complied with or performed by
the Vendor at or prior to the Closing Date;
(k) a certificate of an authorized signing officer of the Vendor attaching
an incumbency certification of all officers and directors of the
Vendor;
(l) a certified copy of a board of directors resolution of the Vendor
authorizing and approving the transfer of the Properties to the
Purchaser;
(m) a certified copy of a shareholders resolution of the Vendor
authorizing and approving the transfer of the Properties to the
Purchaser;
(n) non-merger agreement; and
(o) all such other documents and assurances as may be reasonably required
by the Purchaser, acting reasonably, to more effectively complete the
transactions herein provided for and contemplated by.
-27-
6.2 Purchaser's Closing Documents
-----------------------------
The Purchaser covenants and agrees to deliver or cause to be delivered to
the Vendor fully executed copies of the following documents on or before the
Closing Date (in form satisfactory to the Vendor, acting reasonably,
collectively, the "Purchaser's Documents"):
(a) a share certificate representing the Payment Shares, duly issued in
the name of the Vendor;
(b) a share certificate representing the Debt Shares, duly issued in the
name of the Vendor;
(c) an assignment, assumption and release agreement in respect of the
Assumed Contracts;
(d) a certificate of the Purchaser dated as of the Closing Date certifying
that, except as noted in such certificate:
(i) all the representations and warranties of the Purchaser set forth
in this Agreement are true and correct as at the Closing Date;
and
(ii) all the terms, covenants and agreements set forth in the
Agreement to be complied with or performed by the Purchaser at or
prior to the Closing Date have been complied with or performed by
the Purchaser at or prior to the Closing Date;
(e) a certificate of an authorized signing officer of the Purchaser
attaching an incumbency certification of all officers and directors of
the Purchaser;
(f) a certified copy of a board of directors resolution of the Purchaser
authorizing and approving the purchase of the Properties from the
Vendor and the payment of the Purchase Price and the completion of the
Debt Conversion, including the issuance of the Payment Shares and Debt
Shares to the Vendor, respectively;
-28-
(g) a certified copy of a shareholders resolution of the Purchaser
authorizing and approving the purchase of the Properties from the
Vendor and the payment of the Purchase Price and the completion of the
Debt Conversion, including the issuance of the Payment Shares and Debt
Shares to the Vendor, respectively;
(h) non-merger agreement; and
(i) all such other documents and assurances as may be reasonably required
by the Purchaser, acting reasonably, to more effectively complete the
transactions herein provided for and contemplated by.
ARTICLE VII
CONDITIONS PRECEDENT TO CLOSING
-------------------------------
7.1 Purchaser's Conditions Precedent
---------------------------------
The obligation of the Purchaser to complete the transaction contemplated
hereunder shall be subject to the satisfaction of, or compliance with, at or
before the Closing Date, each of the following conditions precedent:
(a) Delivery of Vendor's Documents. The Purchaser shall on or before the
-------------------------------
Closing Date have received from the Vendor the Vendor's Documents,
together with all other transfers, conveyances, assignments, novation
agreements, notices and other documents and instruments as the
Purchaser may reasonably request for the purpose of effecting the
purchase and sale of the Properties in accordance with the terms of
this Agreement.
(b) Truth and Accuracy of Representations. All of the representations and
--------------------------------------
warranties of the Vendor made in or pursuant to this Agreement, shall
be true and correct in all material respects as at the Closing Date
and with the same effect as if made at and as of the Closing Date, the
Purchaser shall not at the Closing Date be aware of any facts to the
contrary, and the Purchaser shall have received certificates dated the
Closing Date in form satisfactory to the Purchaser, acting reasonably,
signed by the Vendor certifying the truth and correctness in all
material respects of the representations and warranties of the Vendor
made in or pursuant to the Agreement.
-29-
(c) Performance of Covenants. The Vendor will have performed and complied
-------------------------
with all terms, covenants, agreements and conditions required by this
Agreement to be performed or complied with by them on or before the
Closing Date.
(d) Compliance with Regulatory Requirements. All consents, approvals,
----------------------------------------
orders and authorizations of any Persons or governmental authorities
in Canada or elsewhere (or registrations, declarations, filings or
records with any such authorities), including, without limitation, all
Required Approvals, and such registrations, recordings and filings
with such securities regulatory and other public authorities as may be
required to be obtained or filed by the Vendor in connection with the
execution of this Agreement, the Closing or the performance of any of
the terms and conditions hereof shall have been obtained on or before
the Closing Date.
(e) No Orders or Decrees. There shall not be in force any order or decree
---------------------
restraining or enjoining the consummation of the transactions
contemplated by this Agreement.
The foregoing conditions precedent shall be for the sole benefit of the
Purchaser and may be waived in whole or in part by them in writing. In the
event that any of the foregoing conditions are not satisfied or waived, on or
before the Closing Date, the Purchaser shall be entitled to terminate this
Agreement by notice in writing given to the Vendor on or before the Closing
Date.
7.2 Vendor's Conditions Precedent
-----------------------------
The obligation of the Vendor to complete the transaction contemplated
hereunder shall be subject to the satisfaction of or compliance with, at or
before the Closing Date, of each of the following conditions precedent:
(a) Delivery of Purchaser's Documents. The Vendor shall on or before the
----------------------------------
Closing Date have received the Purchaser's Documents from the
Purchaser.
(b) Truth and Accuracy of Representations. All of the representations and
--------------------------------------
warranties of the Purchaser made in or pursuant to this Agreement,
shall be
-30-
true and correct in all material respects as at the Closing Date and
with the same effect as if made at and as of the Closing Date, the
Vendor shall not at the Closing Date be aware of any facts to the
contrary, and the Purchaser shall have received certificates dated the
Closing Date in form satisfactory to the Vendor, acting reasonably,
signed by the Purchaser certifying the truth and correctness in all
material respects of the representations and warranties of the
Purchaser made in or pursuant to this Agreement.
(c) Performance of Covenants. The Purchaser shall have performed and
-------------------------
complied with all terms, covenants, agreements and conditions required
by this Agreement to be performed and complied with by them on or
before the Closing Date.
(d) Compliance with Regulatory Requirements. All consents, approvals,
----------------------------------------
orders and authorizations of any Persons or governmental authorities
in Canada or elsewhere (or registrations, declarations, filings or
records with any such authorities), including, without limitation, all
Required Approvals, and all such registrations, recordings and filings
with such securities regulatory and other public authorities as may be
required to be obtained or filed by the Purchaser in connection with
the execution of this Agreement, the Closing or the performance of any
of the terms and conditions hereof, shall have been obtained on or
before the Closing Date.
(e) CDN Quotation. The completion of any of the transactions contemplated
--------------
by this Agreement, either individually or in the aggregate, shall not,
in the sole and absolute discretion of the Vendor, jeopardize the
existing quotation of the Vendor's common shares by CDN.
(f) No Orders or Decrees. There shall not be in force any order or decree
---------------------
restraining or enjoining the consummation of the transactions
contemplated by this Agreement.
(g) Debt Conversion. The Purchaser shall have issued the Debt Shares to
----------------
the Vendor in furtherance of the Debt Conversion.
The foregoing conditions precedent shall be for the sole benefit of the
Vendor and may be waived in whole or in part by them in writing. In the event
that any of the foregoing
-31-
conditions are not satisfied or waived, on or before the Closing Date, the
Vendor shall be entitled to terminate this Agreement by notice in writing given
to the Purchaser on or before the Closing Date.
7.3 Consequences of Termination
---------------------------
Notwithstanding anything to the contrary contained in this Agreement, if
this Agreement is terminated in accordance with its terms prior to the
completion of the purchase and sale transaction contemplated by it, then except
as concerns covenants, warranties, representations or other obligations breached
prior to the time at which termination occurs, and except as concerns any cost
payment obligations incurred under the provisions of this Agreement, the parties
shall be released from all of their obligations under this Agreement.
ARTICLE VIII
GENERAL
-------
8.1 Notices and Communications
--------------------------
All payments and communications which may be or are required to be given by
either party to the other herein shall (in the absence of any specific provision
to the contrary) be in writing and, in the case of payments delivered or sent by
prepaid registered mail and, in the case of communications, delivered or sent by
prepaid registered mail or by facsimile transmission (provided sender obtains
evidence or verification of transmission receipt) to the parties at their
following respective addresses:
To the Purchaser: Vertex Ventures Inc.
1 First Canadian Place
100 King Street West
Suite 745
Toronto, ON M5X 1E2
Attn: Elizabeth J. Kirkwood, President
Fax: (416) 364-0618
-32-
To the Vendor: Opus Minerals Inc.
1 First Canadian Place
100 King Street West
Suite 745
Toronto, ON M5X 1E2
Attn: Elizabeth J. Kirkwood, President
Fax: (416) 364-0618
With a copy of all notices and communications hereunder to go to:
Weir & Foulds
Barristers and Solicitors
Suite 1600, Exchange Tower
130 King Street West
Toronto, ON M5X 1J5
Attn: Wayne T. Egan
Fax: (416) 365-1876
and if any such payment or communication is sent by prepaid registered mail, it
shall, subject to the following sentence, be conclusively deemed to have been
received on the third Business Day following the mailing thereof and, if
delivered or so telecopied, it shall be conclusively deemed to have been
received at the time of delivery or transmission. Notwithstanding the foregoing
provisions with respect to mailing, in the event that it may be reasonably
anticipated that, due to any strike, lock-out or similar event involving an
interruption in postal service, any payment or communication will not be
received by the addressee by no later than the third Business Day following the
mailing thereof, then the mailing of any such payment or communication as
aforesaid shall not be an effective means of sending the same but rather any
payment must then be sent by delivery, and any communication by delivery or
facsimile transmission. Either party may from time to time change its address
hereinbefore set forth by notice to the other of them in accordance with this
section.
-33-
8.2 Goods and Services Tax
----------------------
The Purchaser undertakes and agrees to comply with all federal and
provincial sales tax legislation and, in particular, the Purchaser acknowledges
that the Purchase Price does not include any goods and services tax ("GST")
which may be exigible and payable in respect of this transaction, if any. If
the Purchaser is registered under the Excise Tax Act and wishes to self-assess
or remit the GST to the Receiver General directly, than the Purchaser shall
provide the Vendor on or before closing with evidence satisfactory to the Vendor
that the Purchaser is registered under the Excise Tax Act and that its
registration has not been cancelled as at the Closing Date, together with
a GST Certificate, Warranty and Indemnity in a form satisfactory to the Vendor
acting reasonably.
8.3 Planning Act
------------
This Agreement is entered into subject to the express conditions that it is
to be effective only if the provisions of section 50 of the Planning Act, R.S.O.
1990, c. P.13, as amended, are complied with.
8.4 Non-Merger
----------
The provisions contained in this Agreement shall survive the Closing Date
in accordance with the express terms thereof and shall not merge in any
conveyance, transfer, assignment, novation agreement or other document or
instrument delivered pursuant hereto or in connection herewith.
8.5 Bulk Sales Act Compliance
-------------------------
The Purchaser has been advised that the Vendor is a going concern which
will continue to have significant assets well in excess of the value of the
Properties. In consideration of the Purchaser not requiring evidence of
compliance with the provisions of the Bulk Sales Act, the Vendor hereby agrees
to indemnify and hold harmless the Purchaser from and against all claims,
losses, damages or costs incurred or suffered by the Purchaser arising out of
the application of such Act to the transaction contemplated by this Agreement.
-34-
8.6 Form of Documents
-----------------
All documents to be executed and delivered by the Vendor to the Purchaser
on the Closing Date shall be in form and substance satisfactory to the
Purchaser, acting reasonably. All documents to be executed and delivered by
the Purchaser to the Vendor on the Closing Date shall be in a form and substance
satisfactory to the Vendor, acting reasonably.
8.7 Confidentiality
---------------
Whether or not the transaction contemplated by this Agreement is completed,
the parties hereto agree that all confidential information concerning the
parties hereto and the terms and provisions of this Agreement shall be
maintained in confidence by the parties hereto and will not be disclosed to any
other Person provided that such information may be disclosed if such information
is of public knowledge, or comes to the public domain without fault of the
parties hereto, or if disclosure of such information is required by any present
or future law, regulation or government authority.
8.8 Tender
------
Any tender of documents or money may be made upon the party being tendered
upon or its solicitors. Any money may be tendered by certified cheque or bank
draft.
8.9 Counterparts
------------
This Agreement may be executed in any number of counterparts and all such
counterparts shall for all purposes constitute one agreement, binding on the
parties hereto, provided each party hereto has executed at least one
counterpart, and each shall be deemed to be an original, notwithstanding that
all parties are not signatory to the same counterpart.
8.10 Expenses
--------
All costs and expenses (including, without limitation, the fees and
disbursements of legal counsel) incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by the party incurring such
expenses.
-35-
8.11 Enurement
---------
This Agreement shall be binding upon and shall inure to the benefit of and
be enforceable by the successors and permitted assigns of the parties hereto.
8.12 Waivers
-------
The parties hereto may, by written agreement:
(a) extend the time for the performance of any of the obligations or
other acts of the parties hereto;
(b) waive any inaccuracies in the warranties, representations,
covenants or other undertakings contained in this Agreement or in
any document or certificate delivered pursuant to this agreement;
or
(c) waive compliance with or modify any of the warranties,
representations, covenants or other undertakings or obligations
contained in this Agreement and waive or modify performance by
any of the parties thereto.
IN WITNESS WHEREOF the parties have duly signed, sealed and delivered this
Agreement as of the Effective Date.
SIGNED, SEALED AND ) VERTEX VENTURES INC.
DELIVERED in the )
presence of: )
) Per: _________________________
) Name: Elizabeth J. Kirkwood
) Title: President
)
) I have authority to bind the
) Corporation
)
)
) OPUS MINERALS INC.
)
)
) Per: _________________________
) Name: Elizabeth J. Kirkwood
) Title: President
)
) I have authority to bind the
) Corporation
SCHEDULE "A"
Description of Baffin Island Property
-------------------------------------
NORTHERN TERRITORIES/NUNAVUT TERRITORY
Date of Issue Permit No. Claim Sheet Quarter Acres Length (Years)
- --------------------------------------------------------------------------------------------------
Jan. 29/99 2265 048-A-04 NW 59,072 5
- --------------------------------------------------------------------------------------------------
Jan. 29/99 2266 048-A-05 SW 58,272 5
- --------------------------------------------------------------------------------------------------
Jan. 29/99 2267 048-B-01 NW 59,072 5
- --------------------------------------------------------------------------------------------------
Jan. 29/99 2268 048-B-08 SE 58,272 5
- --------------------------------------------------------------------------------------------------
SCHEDULE "B"
Description of Gope Property
----------------------------
Geographic Area Number Permit Number Registered Permit Holder
- --------------------------------------------------------------------------------------------
Area No. 2 142/93 TNK Area 2 (Proprietary) Limited
- --------------------------------------------------------------------------------------------
Area No. 2 143/93 TNK Area 2 (Proprietary) Limited
- --------------------------------------------------------------------------------------------
Area Nos. 2 and 3 145/93 TNK Area 2 (Proprietary) Limited and
TNK Area 3 (Proprietary) Limited
- --------------------------------------------------------------------------------------------
Area No. 1 146/93 TNK Area 1 (Proprietary) Limited
- --------------------------------------------------------------------------------------------
Area No. 2 147/93 TNK Area 2 (Proprietary) Limited
- --------------------------------------------------------------------------------------------
Area No. 3 148/93 TNK Area 3 (Proprietary) Limited
- --------------------------------------------------------------------------------------------
Area No. 3 149/93 TNK Area 3 (Proprietary) Limited
- --------------------------------------------------------------------------------------------
Area No. 2 67/97 TNK Area 2 (Proprietary) Limited
- --------------------------------------------------------------------------------------------