EXHIBIT 10.1
SHARE PURCHASE AGREEMENT
Share Purchase Agreement dated November 28, 2005 between IAMGold
Corporation (the "Vendor") and Battle Mountain Gold Exploration Corp. (the
"Purchaser").
RECITALS
(a) The Vendor is in the process of incorporating a company under the laws
of the Province of Alberta ('Newco Canada") and, upon incorporation of
Newco Canada, will be the registered and beneficial owner of all of the
issued and outstanding shares of Newco Canada;
(b) The Vendor is in the process of incorporating a company under the laws
of Barbados ("New Barbados") and, upon the incorporation of Newco Barbados,
will be the registered and beneficial owner of all of the issued and
outstanding shares of Newco Barbados;
(c) Prior to the Closing Date, Newco Canada and Newco Barbados will have
as their principal assets those royalty agreements set forth on Schedule
"A" hereto; and
(d) The Vendor wishes to sell and the Purchaser wishes to purchase all of
the issued and outstanding shares of Newco Canada and Newco Barbados upon
the terms and conditions, and for the consideration, contained in this
Agreement.
In consideration of the foregoing and the mutual agreements contained in
this Agreement (the receipt and adequacy of which are acknowledged), the parties
agree as follows.
Section 1 Defined Terms.
As used in this Agreement, the following terms have the following meanings:
"Agreement" means this share purchase agreement and all schedules attached to it
and the expression "Section" followed by a number means and refers to the
specified Section of this Agreement.
"Authorization" mean, with respect to any Person, any order, permit, approval,
waiver, license or similar authorization of any Governmental Entity having
jurisdiction over the Person.
"Average Trading Price" means: (i) if the transactions contemplated by this
Agreement are announced on a trading day prior to the opening or during trading
on such day, the average unit trading price of the common shares of the
Purchaser for the five trading days allocated as the two trading days prior to
the date of such announcement, the trading day of the date such announcement or
(ii) if the transactions contemplated by this Agreement are announced on a
trading day after the close of trading of such day, the average unit price of
the common shares of the Purchaser for the five trading days allocated as the
two days prior to the date of such announcement and the three days following the
date of such announcement, each on the PTCBB or such other stock exchange as
reported by the Wall Street Journal and the National Quotation Bureau pink
sheets.
"Cash Consideration" has the meaning specified in Section 3(1)(b)(i).
"Closing Date" has the meaning specified in Section 7.
"Common Shares" has the meaning specified in Section 3(1)(b)(ii)
"Governmental Entity" means any (i) international, multinational, national,
federal, provincial, state, municipal, local or other governmental or public
department, central bank, court, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) any subdivision or authority of any
of the above, (iii) any quasi-governmental or private body exercising any
regulatory, expropriation or taxing authority under or for the account of any of
the above, and (iv) any stock exchange.
"Laws" means any and all applicable laws including all statutes, codes,
ordinances, decrees, rules, regulations, municipal by-laws, judicial or arbitral
or administrative or ministerial or departmental or regulatory judgments,
orders, decisions, rulings or awards, policies, guidelines, and general
principles of common and civil law and equity, binding on or affecting the
Person referred to in the context in which the word is used.
"Lien" means any mortgage, charge, pledge, hypothecation, security interest,
assignment, lien (statutory or otherwise), charge, title retention agreement or
arrangement, restrictive covenant or other encumbrance of any nature or any
other arrangement or condition that, in substance, secures payment or
performance of an obligation.
"Person" means a natural person, partnership, limited partnership, limited
liability partnership, corporation, limited liability corporation, joint stock
company, trust, unincorporated association, joint venture or other entity or
Governmental Entity, and pronouns have a similarly extended meaning.
"Purchased Shares" has the meaning specified in Section 2.
"Required Value" means:
(a) in respect of Section 3(1)(a)(ii), the number of common shares of the
Purchaser equal to a quotient, whereby (i) the numerator is equal to
8,156,000 common shares, par value $0.001 per share, multiplied by $0.50
and (ii) the denominator is equal to the Average Trading Price.
(b) in respect of Section 3(1)(b)(ii), the number of common shares of the
Purchaser equal to a quotient, whereby (i) the numerator is equal to
3,844,000 common shares, par value $0.001 per share, multiplied by $0.50
and (ii) the denominator is equal to the Average Trading Price; and
(c) in respect of Section 3(2)(ii), the number of common shares of the
Purchaser equal to a quotient, whereby (i) the numerator is equal to
2,350,000 common shares, par value $0.001 per share, multiplied by $0.50
and (ii) the denominator is equal to the Average Trading Price.
"Royalty Agreements" has the meaning specified in Section 4(k).
Section 2 Purchase and Sale.
Subject to the terms and conditions of this Agreement, the Vendor
agrees to sell, assign and transfer to the Purchaser and the Purchaser agrees to
purchase from the Vendor on the Closing Date, all of the issued and outstanding
shares of Newco Canada and Newco Barbados (collectively, the "Purchased
Shares").
Section 3 Purchase Price.
(1) Subject to Section 3(2) below, the purchase price payable by the
Purchaser to the Vendor for the Purchased Shares on the Closing Date shall
be an aggregate of US $21,850,000 payable as follows:
(a) for the Purchased Shares of Newco Canada:
(i) US$10,772,000 in immediately available funds; and
(ii) the greater of (x) 8,156,000 common shares, $0.001 par value
per share, of the Purchaser and (y) such number of common shares
equal to the Required Value; and
(b) for the Purchased Shares of Newco Barbados:
(i) US$5,078,000 million in immediately available funds
(collectively, with the amount set forth in Section 3(1)(a)(i)
Above, the "Cash Consideration"); and
(ii) the greater of (x) 3,844,000 common shares, $0.001 par value
per share, of the Purchaser and (y) such number of common shares
equal to the Required Value (collectively with the common shares
set forth in Section 3(1)(a)(ii) above, the "Common Shares").
(2) If, pursuant to a Trust Indenture dated November 10, 1989 among
▇▇▇▇▇▇▇ Gold Corporation (as successor-in-interest to Corona Corporation),
Teck Corporation, or ▇▇▇▇▇▇▇ Gold Corporation exercise their rights of
first refusal to acquire the Vendor's trust units of the ▇▇▇▇▇▇▇▇ Royalty
Trust, the purchase price for the Purchased Shares of Newco Canada shall be
reduced by an aggregate amount equal to US$10,400,000 so that:
(i) The Cash Consideration for the Purchased Shares of Newco
Canada shall be US$3,275,000; and
(ii) The Common Shares issued in respect of the Purchased Shares
of Newco Canada shall be the greater of (x) 2,350,000 and (y)
such number of common shares equal to the Required Value.
Section 4 Vendor's Representations and Warranties.
The Vendor represents and warrants as follow to the Purchaser at the date
of this Agreement and at the Closing Date and acknowledges and confirms that the
Purchaser is relying upon such representations and warranties in connection with
the purchase by the Purchaser of the Purchased Shares:
(a) Incorporation and Qualification. The Vendor is a corporation
incorporated and existing under the federal laws of Canada and has the
corporate power to enter into and perform its obligations under this
Agreement.
(b) Corporate Authority. The execution and delivery of and
performance by the Vendor of this Agreement have been authorized by
all necessary corporate action on the part of the Vendor. The transfer
of the Purchased Shares to the Purchaser will be, upon their
incorporation, authorized by all Necessary corporate action by each of
Newco Canada and Newco Barbados.
(c) No Violation or Breach. The execution and delivery of and
performance by the Vendor of this Agreement:
(i) will not (or would not with the giving of notice, the lapse
of time or the happening of any other event or condition) result
in a breach or violation of or a conflict with, or allow any
other Person to exercise any rights under, any of the terms or
provisions of the constating documents or by-laws of the Vendor,
Newco Canada or Newco Barbados;
(ii) will not (or would not with the giving of notice, the lapse
of time or the happening of any other event or condition) result
in a breach or violation of or a conflict with, or allow any
other Person to exercise any rights under any contracts or
instruments to which the Vendor, Newco Canada or Newco Barbados
is a party or pursuant to which any of the assets or property of
the Vendor, Newco Canada or Newco Barbados may be affected;
(iii) will not result in a breach of, or cause the termination or
revocation of, any authorization held by the Vendor, Newco Canada
or Newco Barbados or necessary to the ownership of the Purchased
Shares; and
(iv) will not result in the violation of any Law.
(d) Authorization and Consents. There is no requirement on the part
of the Vendor, Newco Canada or Newco Barbados to make any filing with
or give any notice to any Governmental Entity, or obtain any
Authorization, in connection with the completion of the transactions
contemplated by this Agreement, except for the filings and
notifications required by applicable securities Laws. All necessary
consents, approvals and authorizations of any Person required under
any contracts or instruments to which the Vendor, Newco Canada or
Newco Barbados is a party or pursuant to which any of the assets or
property of the Vendor, Newco Canada or Newco Barbados may be affected
in connection with the completion of the transactions contemplated by
this Agreement.
(e) Execution and Binding Obligation. This Agreement has been duly
executed and delivered by the Vendor and constitutes a legal, valid
and binding agreement of the Vendor enforceable against it in
accordance with its terms subject only to any limitation under
applicable laws relating to (i) bankruptcy, winding-up, insolvency,
arrangement and other laws of general application affecting the
enforcement of creditors' rights, and (ii) the discretion that a court
may exercise in the granting of equitable remedies such as specific
performance and injunction.
(f) Authorized and Issued Capital. The Purchased Shares will
constitute all of the issued and outstanding shares of Newco Canada
and Newco Barbados. All of the Purchased Shares will be issued in
compliance with all applicable Laws including, without limitation,
applicable securities Laws.
(g) No Other Agreements to Purchase. Except for the Purchaser's right
under this Agreement, no Person has any written or oral agreement,
option or warrant or any right or privilege (whether by law,
pre-emptive or contractual) capable of becoming such for (i) the
purchase or acquisition from the Vendor of any of the Purchased
Shares, or (ii) the purchase, subscription, allotment or issuance of
any of the unissued shares or other securities of either Newco Canada
or Newco Barbados.
(h) Title to Purchased Shares. Upon the incorporation of Newco Canada
and Newco Barbados, the Purchased Shares will be owned by the Vendor
as The registered and beneficial owner with good title, free and clear
of all Liens other than those restrictions on transfer, if any,
contained in the articles of incorporation of Newco Canada or in the
incorporating documents of Newco Barbados. Upon completion of the
transaction contemplated by this Agreement, the Purchaser will have
good and valid title to the Purchased Shares, free and clear of all
Liens other than those restrictions on transfer, if any, contained in
the articles of incorporation of Newco Canada in the constating
documents of Newco Barbados.
(i) No Action. The Vendor is not aware of any action, suit or
proceeding, at law or at equity, for or by any court or any federal,
provincial, municipal or other governmental department, commission,
board, agency or instrumentality which would prevent or materially
adversely affect the transactions contemplated by this Agreement.
(j) Residence. The Vendor is not a non-resident of Canada for the
purposes Of the Income Tax Act (Canada).
(k) Royalty Agreements. Immediately following their incorporation,
the principal assets of Newco Canada and Newco Barbados will consist
of royalty agreements listed at Schedule "A" hereto (collectively, the
"Royalty Agreements"). To the knowledge of the Vendor, each of the
Vendor, Newco Canada and Newco Barbados has preformed all of the
Obligations required to be performed by each of them under the Royalty
Agreements and, upon the transfer of the Royalty Agreements by the
Vendor, each of Newco Canada and Newco Barbados will be entitled to
The benefits and rights under the respective Royalty Agreements to
which they are a party. To the knowledge of the Vendor, each of the
Royalty Agreements is in full force and effect and there exists no
default or event, occurrence, condition or act which, with the giving
of notice, the lapse of time or the happening of any other event or
condition, would become a default or event of default under such
Royalty Agreement.
Section 5 Purchaser's Representations and Warranties.
The Purchaser represents and warrants to the Vendor at the date of this
Agreement and at the Closing Date and acknowledges and confirms that the Vendor
is relying on such representations and warranties in connection with the sale by
the Vendor of the Purchased Shares:
(a) Incorporation and Qualification. The Purchaser is a corporation
incorporated and existing under the laws of the state of Nevada. The
Purchaser has the corporate power to enter into and perform its
obligations under this Agreement, including, without limitations, its
obligation to issue the Common Shares.
(b) Corporate Authority. The execution and delivery of and
performance by the Purchaser of this Agreement and, without
limitation, the issuance of the Common shares, have been authorized by
all necessary corporate action on the part of the Purchaser.
(c) No Violation or Breach. The execution and delivery of and
performance by the Purchaser of this Agreement including, without
limitation, the issuance of the Common Shares:
(i) will not (or would not with the giving of notice, the lapse
of time or the happening of any other event or condition) result
in a breach or violation of or a conflict with, or allow any
other Person to exercise any rights under, any of the terms or
provisions of the Purchaser's constating documents or by-laws;
(ii) will not (or would not with the giving of notice, the lapse
of time or the happening of any other event or condition) result
in a breach or violation of or a conflict with , or allow any
other Person to exercise any rights under any contracts or
instruments to which the Purchaser is a party; and
(iii) will not result in the violation of any Law.
(d) Execution and Binding Obligation. This Agreement has been duly
executed and delivered by the Purchaser and constitutes legal, valid
and binding agreements of the Purchaser enforceable against it in
accordance with its terms subject only to any limitation under
applicable Laws relating to (i) bankruptcy, winding-up, insolvency,
arrangement and other laws of general application affecting the
enforcement of creditors' rights, and (ii) the discretion that a court
may exercise in the granting of equitable remedies such as specific
performances and injunction.
(e) Authorized and Issued Capital. The authorized capital of the
Purchaser consists of 200,000,000 shares of common stock, $.001 par
value per share, and 10,000,000 shares of preferred stock, $.001 par
value per share, of which, (i) at his date, 42, 530,000 common shares
and no preferred shares have been issued and are outstanding as fully
paid and non-assessable, and (ii) at the Closing Date up to 85,000,000
common shares and no preferred shares will be issued and will be
outstanding as fully paid and non-assessable.
(f) Common Shares. Upon issuance of the Common Shares, the Common
Shares will be duly authorized and validly issued and the Vendor will
acquire good and valid title to the Common Shares free and clear of
any encumbrances and liens. The Common Shares will be fully paid and
non-assessable. There are no outstanding contractual obligations of
the Purchaser (1)(i) restricting the transfer of the Common Shares or
(ii) requiring the registration or sale of the Common Shares, or (2)
granting any pre-emptive or anti-dilutive right or other rights,
subscriptions, calls, commitments, warrants, options or other
agreements that give any Person the right to purchase, subscribe for,
or otherwise receive or be issued the Common Shares or any security
convertible into or exchangeable for the Common Shares.
(g) Investment Canada Act. The Purchaser is not a non-eligible person
within the meaning of the Investment Canada Act (Canada); and
(h) Securities Laws. The Purchaser is acquiring the Purchased Shares
as principal and not as agent and is acquiring the Purchased Shares
for investment purposes only and not with a view to resale or
distribution. The Purchaser is a non-resident person as defined in
Section 116 of the Income Tax Act (Canada) and acknowledges that the
purchase of the Purchased Shares is exempt from the registration and
prospectus requirements of applicable securities Laws in Canada. The
Purchaser further acknowledges that it is an "accredited investor" as
such term is defined in Rule 501(a) under the U.S. Securities Act of
1933, as amended (the "U.S. Securities Act") and that the Purchased
Shares are to be held by the Purchaser solely for its own account for
investment purposes only, and not with a view to or for any resale,
subdivision or distribution of any part thereof into the United States
or to a U.S. person (as such terms are defined in Regulation S under
the U.S. Securities Act) and has no plans to enter into and has not
entered into any contract, undertaking or agreement to such end.
Section 6 Conditions of Closing.
(a) Conditions for the Benefit of the Purchaser. The purchase and
sale of the Purchased Shares is subject to the following conditions to
be fulfilled or performed, on or before the Closing Date, which
conditions are for the exclusive benefit of the Purchaser and may be
waived, in whole or in part, by the Purchaser in its sole discretion:
(i) The covenants, representations and warranties of the Vendor
contained in this Agreement shall be true and correct as of the
Closing Date with the same force and effect as if such covenants,
representations and warranties had been make on and as of such
date;
(ii) The Vendor shall deliver to the Purchaser a certified copy
of the resolution of the directors (a) of the Vendor approving
the execution, delivery and performance of this Agreement,
including the transfer of the Purchased Shares to the Purchaser;
(b) of Newco Canada approving the transfer of all of the shares
of Newco Canada to the Purchaser; and (c) of Newco Barbados
approving the transfer of all of the shares of Newco Barbados to
the Purchaser;
(iii) The share certificates representing the Purchased Shares
shall be duly endorsed for transfer to the Purchaser or shall be
accompanied by a irrevocable share transfer power of attorney
duly executed in blank by the Vendor; and
(iv) As at the Closing Date, no event or condition shall have
occurred, or shall exist, that individually or in the aggregate
is or would reasonably be expected to be material and adverse to
the condition (financial or otherwise), properties, assets,
liabilities, obligations, business, operations or prospects of
either Newco Canada or Newco Barbados.
(b) Conditions for the Benefit of the Vendor. The purchase and sale
of the Purchased Shares is subject to the following conditions to be
fulfilled or performed on or before the Closing Date, which conditions
are for the exclusive benefit of the Vendor and may be waived, in
whole or in part, by the Vendor in its sole discretion:
(i) The covenants, representations and warranties of the
Purchaser contained in this Agreement shall be true and correct
as of the Closing Date with the same force and effect as if such
covenants, representations and warranties had been made on and as
of such date;
(ii) The Purchaser shall deliver to the Vendor a certified copy
of a resolution of the directors of the Purchaser approving,
among other things, the execution, delivery and performance of
this Agreement and the issuance of the Common Shares to the
Vendor;
(iii) The Purchaser shall deliver duly executed share
certificates representing the Common Shares in the name of the
Vendor (or an affiliate of the Vendor, as the Vendor shall so
direct);
(iv) As at the Closing Date, no event or condition shall have
occurred, or shall exist, that individually or in aggregate is or
would reasonably be expected to be material and adverse to the
condition (financial or otherwise), properties, assets,
liabilities, obligations, business, operations or prospects of
the Purchaser; and
(v) The Purchaser and the Vendor shall enter into a registration
rights agreement with respect to the Purchaser's preparation and
filing of one or more resale registration statements pursuant to
United States securities laws with respect to the registration of
the Common Shares, in form and substance satisfactory to the
Vendor in its sole discretion.
Section 7 Closing.
The completion of the transaction of purchase and sale contemplated by
this Agreement shall take place at the offices of Stikeman Elliott LLP, Suite
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, at 10:00 a.m. (Toronto time) on
January 15, 2005 at 10:00 a.m. or at such other place, on such other date and
such other time as may be agreed upon in writing by the parties ( the "Closing
Date").
Section 8 Deliveries.
Subject to the satisfaction or waiver by the relevant party of the
conditions of closing, on the Closing Date, the Vendor shall deliver actual
possession of the Purchased Shares to the Purchaser and upon such delivery, the
Purchaser shall pay the Cash Consideration and deliver the Common Shares to the
Vendor in accordance with Section 3.
Section 9 Survival of Covenants, Representations and Warranties.
(a) The covenants, representations and warranties of the Vendor
contained in this Agreement and in any certificates or documents
delivered pursuant to or in connection wit the transactions
contemplated by this Agreement shall survive the closing of the
purchase and sale of the Purchased Shares and, notwithstanding such
closing, and regardless of any investigation by or on behalf of the
Purchaser, shall continue in full force and effect for the benefit of
the Purchaser without limitation of time, subject only to applicable
limitation periods imposed by law.
(b) The covenants, representations and warranties of the Purchaser
contained I this Agreement and in any certificates or documents
delivered pursuant to or in connection with the transactions
contemplated by this Agreement shall survive the closing of the
purchase and sale of the Purchased Shares and, notwithstanding such
closing, and regardless of any investigation by or on behalf of the
Vendor, shall continue in full force and effect for the benefit of the
Vendor without limitation of time, subject only to applicable
limitation periods imposed by Law.
Section 10 Time of the Essence.
Time shall be of the essence of this Agreement.
Section 11 Enurement.
This Agreement shall become effective when executed by the Vendor and the
Purchaser and after that time shall be binding upon and enure to the benefit of
the parties and their respective successors and permitted assigns. Neither this
Agreement nor any of the rights or obligations under this Agreement shall be
assignable or transferable by either party without the consent of the other
party.
Section 12 Entire Agreement.
This Agreement constitutes the entire agreement between the parties with
the respect to the transactions contemplated in this Agreement and supersedes
all prior agreements, understandings, negotiations and discussions, whether oral
or written, of the parties with respect to the subject matter of this Agreement.
There are no representations, warranties, covenants, conditions or other
agreements, express or implied, collateral, statutory or otherwise, between the
parties in connection with the subject matter of this Agreement, except as
specifically set forth in this Agreement. The parties have not replied and are
not relying on any other information, discussion or understanding in entering
into and completing the transactions contemplated by this Agreement.
Section 13 Waiver.
(a) No waiver of any of the provisions of this Agreement shall be
deemed to constitute a waiver of any other provision (whether or not
similar), nor shall such waiver be binding unless executed in writing
by the party to be bound by the waiver.
(b) No failure on the part of the Vendor or the Purchaser to
exercise, and no delay in exercising any right under this Agreement
shall operate as a waiver of such right; nor shall any single or
partial exercise of any such right preclude any other or further
exercise of such right or the exercise of any other right.
Section 14 Further Assurances.
Each of the parties covenants and agrees to do such things, to attend such
meetings and to execute such further documents and assurances as may be deemed
necessary or advisable from time to time in order to carry out the terms and
conditions of this Agreement in accordance with their true intent.
Section 15 Severability.
If any provision of this Agreement shall be determined to be illegal,
invalid or unenforceable by any court of competent jurisdiction from which no
appeal exists or is taken, such provisions shall be severed from this Agreement
and the remaining provisions shall continue in full force and effect.
Section 16 Governing Law.
This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein.
Section 17 Public Announcements.
Neither party, prior to the Closing Date, shall make, or cause to be made,
any press release or public announcement in respect of this Agreement, or the
transactions contemplated hereby or otherwise communicate with any new media
without prior approval of the other party, unless such disclosure is required by
Law (in which prior approval of the other party, unless such disclosure shall
consult with the other party prior to making such disclosure). The parties shall
cooperate, using commercially reasonable efforts, as to the timing and contents
of any such announcement, including any such announcement required by Law.
Notwithstanding the foregoing, the parties shall agree on or prior to the
Closing Date as to the timing and contents of any press release concerning the
consummation of the transactions contemplated hereby.
Section 18 Counterparts.
This Agreement may be executed in any number of counterparts (including
counterparts by facsimile) and all such counterparts taken together shall be
deemed to constitute on and the same instrument.
IN WITNESS WHEREOF the parties have executed this Share Purchase Agreement.
IAMGOLD CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: CFO
BATTLE MOUNTAIN GOLD
EXPLORATION CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman
SCHEDULE "A"
PRINCIPAL ASSETS OF NEWCO CANADA AND NEWCO BARBADOS
Royalty Agreements held by Newco Canada
- ▇▇▇▇▇▇▇▇ Mine, Ontario (Trust Units to be transferred)
- ▇▇▇ ▇▇▇▇ Mine, Ouebec
- El ▇▇▇▇▇ Mine, Nicaragua
- Lluvio de Oro Mine, Mexico
- Night Hawk Lake Property, Ontario
- Seguenega Property, Burkina Faso
Royalty Agreements held by Newco Barbados
- Don Mario Mine, Bolivia
- ▇▇▇▇▇▇▇ Deposit, Mexico
- Lluvio de Oro Mine, Mexico
- Marmato Property, Columbia
- Relief Canyon Mine, Nevada
- Vueltas del Rio Mine, Honduras