SECURITIES PURCHASE AGREEMENTPurchase and Sale Agreement |
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URANIUM ENERGY CORP | Uranium One Inc | URN LLC | URN Ltd | URN Resources Inc | URN South Texas Project, Ltd | URN Texas GP, LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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SECURITIES PURCHASE AGREEMENT among Table of Contents
Exhibit A-- Registration Rights Agreement Exhibit B-- Form of FIRPTA Certificate Exhibit C-- Form of Assignment Exhibit D - Form of Lessor Consents SECURITIES PURCHASE AGREEMENT This SECURITIES PURCHASE AGREEMENT (this " Agreement ") between Uranium Energy Corp., a Nevada corporation (" Buyer "), and URN Resources Inc., a Nevada corporation (" Seller "), is made as of October 13, 2009 (" Execution Date "). Recitals WHEREAS , Seller owns 1,000 units of membership interests in URN Texas GP, LLC (" URN LLC ") representing 100% of all of such outstanding units (" URN LLC Securities "). WHEREAS , Seller owns 99 units of limited partnership interest in URN South Texas Project, Ltd. (" URN Ltd .", and together with URN LLC, the " Companies ", or individually, a " Company ") representing 100% of all of such outstanding units of limited partnership interest (" URN Ltd. Securities ", and together with the URN LLC Securities, the " Company Securities "). URN LLC owns one (1) unit of general partnership interest in URN Ltd., representing 100% of all of such units of general partnership interest. WHEREAS , Seller desires to sell, and Buyer desires to buy, the Company Securities on the terms and subject to the conditions set forth in this Agreement. NOW, THEREFORE , in consideration of the mutual representations, warranties and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: I. DEFINITIONS "Accredited Investor" means an accredited investor as defined in Rule 501(a) of Regulation D under the Securities Act. " Administrative Agent" has the meaning set forth below in the definition of the term "Uranium One Credit Agreements". "Affiliate" has the meaning set forth in Rule 12b-2 under the Securities Exchange Act of 1934, as amended. "Agreement" has the meaning set forth in the first paragraph of this Agreement. "Amex" means the NYSE Amex. "Assignment" has the meaning set forth in Section 0. " Bank Accounts " means accounts and deposit boxes maintained at any bank or other financial institution as of the Execution Date. "Basket Amount" has the meaning set forth in Section 1.1(b). "Benefit Plans" means, as to any Person, any Employee Plan that is maintained or contributed to by such Person (or any of its Affiliates) for the benefit of any current or former Employee. "Business Day" means any day other than a Saturday, a Sunday, a United States or Canadian federal holiday or a banking holiday in the State of Texas or the Province of British Columbia. "Buyer" has the meaning set forth in the first paragraph of this Agreement. "Buyer Claim" has the meaning set forth in Section 1.1(c). "Buyer Cure Period" has the meaning set forth in Section 1.1(b)(i). "Buyer Financials" has the meaning set forth in Section 0. "Buyer Indemnified Parties" has the meaning set forth in Section 1.1(a). "Buyer Intellectual Property" has the meaning set forth in Section 1.1(a). "Buyer Losses" has the meaning set forth in Section 1.1(a)(iii). "Buyer Required Consents" has the meaning set forth in Section 1.1(a). "Buyer Third Party Action" has the meaning set forth in Section 1.1(a). "Canadian Disclosure Documents" has the meaning set forth in Section 0. "Cap" has the meaning set forth in Section 1.1(b). " CAR Rules " has the meaning set forth in Section 1.1(b). "Closing " has the meaning set forth in Section 1.1(a). "Closing Date" has the meaning set forth in Section 1.1(a). "Code" means the Internal Revenue Code of 1986, as amended. "Collective Bargaining Agreement" has the meaning set forth in Section 3.14. " Commission " means the Securities and Exchange Commission. "Companies" has the meaning set forth in the third paragraph of this Agreement. "Company Assets" has the meaning set forth in Section 3.6(a). " Company Securities " has the meaning set forth in the third paragraph of this Agreement. 2 "Confidentiality Agreement" means the confidentiality agreement dated June 3, 2009 between Buyer and Uranium One Inc. "Consent" means any authorization, consent, approval, filing, waiver, exemption or other action by or notice to any Person. "Consulting Agreement Releases" has the meaning set forth in Section 0. "Contract" means a contract, agreement, lease, commitment or binding understanding, whether oral or written, that is in effect as of the date of this Agreement or any time after the date of this Agreement. "Disclosure Schedule" means the schedule delivered by Seller to Buyer on or prior to the date of this Agreement. " Dispute " has the meaning set forth in Section 1.1(a). "Driscoll Agreements" mean (a) the In-Situ Uranium Mining Lease, dated November 30, 2008 by and between Robert Driscoll and Julia Driscoll and Robert Driscoll, Jr. Foundation, South Texas Mining Venture, L.L.P., Energy Metals Corporation (US), Uranium One Inc. and Everest Exploration, Inc., a memorandum of which was recorded in Duval County, Texas as Instrument Number 2008-102588; and (b) the Uranium Mining Lease Option, dated November 30, 2008 by and between Robert Driscoll and Julia Driscoll and Robert Driscoll, Jr. Foundation, South Texas Mining Venture, L.L.P., Energy Metals Corporation (US), Uranium One Inc. and Everest Exploration, Inc., a memorandum of which was recorded in Duval County, Texas as Instrument Number 2008-102587. " Eligible Terminated Person " has the meaning set forth in Section 0(b). "Employee" means, as to any Person, any individual who is employed by such Person. "Employee Plan" means any pension, profit sharing, retirement, stock purchase, stock option, stock ownership, stock appreciation rights, phantom stock or other equity, leave of absence, layoff, vacation, dependent care, cafeteria, life, health, accident, disability, worker's compensation or other insurance, severance, separation or other employee benefit plan or program including, but not limited to, any "employee benefit plan" within the meaning of Section 3(3) of ERISA. "Encumbrance" means any charge, claim, easement, covenant, condition, equitable interest, lien, option, pledge, security interest, right of first refusal or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership. " Environment " means the ambient air, water, groundwater, surface and subsurface soil. "Environmental Laws" means, as to any Person, all Laws applicable to the conduct and the operation of the business of such Person in force on or prior to the Closing, and relating to 3 uranium mining and processing, radioactive materials, Hazardous Materials and the protection and remediation of the Environment. "Environmental Permits" means, as to any Person, any licenses, permits, authorizations and approvals issued by any Governmental Authorities (including the NRC) and required to be obtained by such Person under Environmental Laws for the conduct and the operation of the business of such Person as currently conducted. "Equipment" has the meaning set forth in Section 0. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations thereunder. "Everest Conditions" has the meaning set forth in Section 5.18. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder. "Execution Date" has the meaning set forth in the first paragraph of this Agreement. "GAAP" means, with respect to the Companies and STMV, Canadian generally accepted accounting principles, as in effect from time to time, and with respect to Buyer, United States generally accepted accounting principles, as in effect from time to time. "Governmental Authority" means any federal, state, regional, local government or other political subdivision thereof, any entity, authority or body exercising executive, legislative, judicial or regulatory authority, or any court of competent jurisdiction, administrative agency or commission or other governmental authority. "Governmental Entity" means any federal, state, local, foreign, international or multinational entity or authority exercising executive, legislative, judicial, regulatory, administrative or taxing functions of or pertaining to government. "Governmental Order" means any judgment, injunction, writ, order, ruling, award or decree by any Governmental Entity or arbitrator. "Hazardous Materials" means any chemicals, materials or substances which are defined, listed, identified or regulated as a "radioactive material", "radioactive waste", "hazardous waste" or "hazardous substance" under any applicable Environmental Laws. "Indebtedness" means, as to any Person, all obligations of such Person for payment of borrowed money, including obligations for payment of principal, interest and penalties, other than pursuant to the Letters of Credit. "Indemnity Limitations" has the meaning set forth in Section 1.1(b). "IRS" means the United States Internal Revenue Service. 4 "Knowledge" means the actual knowledge of the Knowledge Personnel. "Knowledge Personnel" with respect to Buyer means Amir Adnani, Harry Anthony and Pat Obara and with respect to Seller means Terry Lloyd, Larry McGonagle, Gordon Peake and Dennis Stover. "Law" means any law, ordinance, regulation, statute or treaty of any Governmental Entity. "Legal Proceeding" means any judicial, administrative or arbitration actions, suits, proceedings (public, private, civil or criminal) by or before a Government Authority. " Lenders" has the meaning set forth below in the definition of the term "Uranium One Credit Agreements". "Letters of Credit" has the meaning set forth in Section 1.1(e). "Liability" means any liability or obligation whether accrued, absolute, contingent, unliquidated or otherwise, whether due or to become due, whether known or unknown, and regardless of when asserted, including, without limiting the foregoing, all reclamation, restoration and cleanup activities associated with or arising out of conducting exploration and mining activities. " Liens " means any lien, security interests, mortgages, charges, pledges, conditional sales contracts, and other title retention arrangements, restrictions (including, in the case of real property, rights of way, use restrictions, and other reservations or limitations of any nature) or encumbrances whatsoever. "Litigation" means any claim, action, arbitration, mediation, audit, hearing, investigation, proceeding, litigation or suit (whether civil, criminal, administrative, investigative or informal) commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Entity or arbitrator or mediator. "Loss" means any Litigation, Governmental Order, complaint, claim, demand, damage, deficiency, penalty, fine, cost, amount paid in settlement, liability, obligation, Tax, Encumbrance, loss, expense or fee, including court costs and attorneys' fees and expenses. "Material Adverse Effect" means, as to the Companies and STMV, on the one hand, or the Buyer, on the other hand, any change, effect, event or condition, individually or in the aggregate, that has had a material adverse effect on the business, assets, properties, condition (financial or otherwise) or results of operations of the Companies and STMV, collectively, or the Buyer, in each case taken as a whole; provided that in determining whether a Material Adverse Effect has occurred, any effect to the extent attributable to the following will not be considered: (a) changes in Laws, rules or regulations of general applicability or interpretations thereof by Governmental Entities, (b) changes in prevailing interest rates, (c) changes in uranium prices or in general economic conditions, (d) any change, effect, fact, event or condition that adversely affects uranium mining in the United States or the State of Texas generally, or the mining industry generally, (e) any actions taken or omitted to be taken pursuant to the terms of this 5 Agreement, (f) any effects resulting from the announcement of this Agreement, and (g) any effects resulting from facts, events or conditions that are disclosed in this Agreement or in the Disclosure Schedules or of which a party had Knowledge on the Execution Date. "NRC" means the Nuclear Regulatory Commission of the United States of America. "Ordinary Course of Business" means, as to any Person, the ordinary course of business of such Person consistent with past custom and practice. "Organizational Documents" means the following (or equivalents thereof) (a) the articles or certificate of incorporation and the bylaws of a corporation, (b) the partnership agreement and any statement of partnership of a general partnership, (c) the limited partnership agreement and the certificate of limited partnership of a limited partnership, (d) the limited liability company agreement or regulations and articles or certificate of formation or organization of a limited liability company, (e) any charter or similar document adopted or filed in connection with the creation, formation or organization of a Person and (f) any amendment to any of the foregoing. " Pending Barton Action " means the matter known as Cause No. DC-09-127; Peter Barton v. Michael O'Leary, et al. , currently venued in the 229th Judicial District Court of Duval County, Texas. "Permits" means, as to any Person, all licenses, permits and approvals issued to such Person by any Governmental Authority and used in the operation of the business of such Person, other than Environmental Permits. "Permitted Liens" means (a) Liens for Taxes, impositions, assessments, fees, rents or other governmental charges levied or assessed or imposed not yet delinquent or being contested in good faith by appropriate proceedings; (b) statutory Liens (including materialmen's, warehousemen's, mechanic's, repairmen's, landlord's and other similar Liens) arising in the Ordinary Course of Business securing payments not yet delinquent or being contested in good faith by appropriate proceedings; (c) matters of public record; (d) any conditions that reasonably would be expected to be shown by a current survey; (e) surface use agreements, easements, zoning restrictions, rights of way, encroachments, pipelines, transmission and transportation lines and similar encumbrances on real property; (f) any terms and conditions included in any Seller Material Contracts, Permits listed on Schedule 1.1(b) , and Environmental Permits listed on Schedule 1.1(b) with respect to Seller, and any terms and conditions included in any Buyer Material Contracts with respect to Buyer; (g) the rights of lessors and lessees under leases, and the rights of third parties under any agreement, executed in the Ordinary Course of Business; (h) the rights of licensors and licensees under licenses executed in the Ordinary Course of Business; (i) restrictive covenants, easements and defects, imperfections or irregularities of title or Liens, if any, as would not reasonably be expected to materially interfere with the conduct of the business of the Companies or the Buyer, as applicable; (j) purchase money Liens and Liens securing rental payments under leases that constitute capital leases under GAAP; (k) restrictions on transfer with respect to which consents or waivers will be obtained prior to the Closing; (l) Liens entered into in the Ordinary Course of Business which do not secure the payment of indebtedness for borrowed money and which do not materially and adversely affect the ability of either of the Companies or the Buyer, as applicable, to conduct its respective business; (m) Liens 6 referenced in any title policies or real property files listed in the Schedules; and (n) Liens contained in the Organizational Documents of either Company or Buyer. "Person" means any individual, corporation (including any non profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, Governmental Entity or other entity. "Purchase Consideration Shares" has the meaning set forth in Section 0. "Purchase Value" means the dollar value equal to the product of (a) 2,500,000 multiplied by (b) the closing price of one share of Buyer's common stock as reported by Amex on the Closing Date (or, if no closing price is reported by Amex with respect to the Closing Date, the most recent closing price reported by Amex prior to the Closing Date). "Registration Rights Agreement" means the registration rights agreement to be entered into between Buyer and Seller on the Closing Date substantially in the form attached as Exhibit A hereto. "Release Deadline" has the meaning set forth in Section 0. " Representatives " means, with respect to any Person, the directors, officers, employees, accountants, agents, attorneys, consultants, advisors and other representatives of such Person. "Required Insurance" has the meaning set forth in Section 0. "Required Releases" has the meaning set forth in Section 0. "Required Sureties" has the meaning set forth in Section 0. "Return" means any return, declaration, report, estimate, information return and statement pertaining to any Taxes. "SEC Documents" means all reports, schedules, forms, statements and other documents required to be filed with the Commission by Buyer since the date that is two years prior to the Execution Date, including, without limitation, all exhibits included or incorporated by reference therein, financial statements and schedules thereto, and documents (other than exhibits) included or incorporated by reference therein. "Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations thereunder. " Seller" has the meaning set forth in the first paragraph of this Agreement. "Seller Claim" has the meaning set forth in Section 1.1(c). "Seller Cure Period" has the meaning set forth in Section 1.1(c)(i). "Seller Financial Statements" has the meaning set forth in Section 3.8. 7 "Seller Fiscal Year End" has the meaning set forth in Section 3.8. "Seller Indemnified Parties" has the meaning set forth in Section 1.1(a). "Seller Intellectual Property" has the meaning set forth in Section 1.1(a). "Seller Losses" has the meaning set forth in Section 1.1(a)(iii). "Seller Material Contracts" has the meaning set forth in Section 1.1(a)(vii). " Seller Required Consent" has the meaning set forth in Section 1.1(b). "Seller Third Party Action" has the meaning set forth in Section 1.1(a). " Severance Payment " has the meaning set forth in Section 0(b). " Shell Company " means a company that has (a) no or nominal operations and (b) either (i) no or nominal assets, (ii) assets consisting solely of cash and cash equivalents or (iii) assets consisting of cash and cash equivalents together with other nominal assets. "STMV" means the South Texas Mining Venture, L.L.P., a Texas limited liability partnership. "STMV Interests" has the meaning set forth in Section 1.1(c). " STMV Leased Real Property " has the meaning set forth in Section 1.1(a). "STMV Owned Real Property" has the meaning set forth in Section 1.1(a). " STMV Real Property " has the meaning set forth in Section 1.1(a). " Sub-Basket Amount " has the meaning set forth in Section 1.1(b). "Subsidiary" means any Person in which a controlling ownership interest is owned, directly or indirectly, by another Person. "Tax Affiliate" means the Companies, STMV and any other Person that is or was a member of an affiliated, combined or unitary group of which the Companies or STMV are or were members. "Tax Authority" means any Governmental Authority having jurisdiction over the assessment, determination, collection or imposition of any Tax. "Taxes" means all income, profit, sales, use, value added, transfer, withholding, excise, severance, stamp, occupation or property taxes, customs duties, charges or other taxes, as well as social security contributions, together with any interest and any penalties. 8 "Tax Returns" means any report, return, election, document, schedule, attachment, estimated tax filing, declaration or other filing provided to any Tax Authority including any amendments thereto. "Third Person" means a Person other than Seller, UEC Sub, Buyer, the Companies and any of their Affiliates. " Treasury Regulations" means the rules and regulations under the Code. " UEC Sub " means Buyer's wholly-owned Subsidiary, UEC Resources Ltd., a British Columbia corporation. " Uranium One Credit Agreements " means the credit agreement, dated as of June 27, 2008, by and among the Bank of Montreal and the Bank of Nova Scotia, as lenders (the "Lenders"), and Uranium One, as borrower, and the Bank of Montreal, as administrative agent (in such capacity, the "Administrative Agent"), and the other agreements entered into in connection therewith, including, but not limited to, (a) the Securities Pledge Agreement, dated June 27, 2008, made by Seller to and in favor of the Administrative Agent, pledging to the Administrative Agent its membership interest in URN LLC and its limited partnership interest in URN Ltd.; (b) the Guarantee, dated June 27, 2008, made by URN LLC in favor of the Administrative Agent; (c) the Securities Pledge Agreement, dated June 27, 2008, made by URN LLC to and in favor of the Administrative Agent, pledging to the Administrative Agent its general partnership interest in URN Ltd.; (d) the Subordination and Assignment Agreement, dated June 27, 2008, made by URN LLC in favor of the Administrative Agent; (e) the Guarantee, dated June 27, 2008, made by URN Ltd. in favor of the Administrative Agent; and (f) the Subordination and Assignment Agreement, dated June 27, 2008, made by URN Ltd. in favor of the Administrative Agent. "URN LLC" has the meaning set forth in the third paragraph of this Agreement. "URN LLC Securities" has the meaning set forth in the third paragraph of this Agreement. "URN Ltd." has the meaning set forth in the fourth paragraph of this Agreement. "URN Ltd. Securities" has the meaning set forth in the fourth paragraph of this Agreement. II. PURCHASE OF COMPANY SECURITIES AND CLOSING . At the Closing and on the terms and subject to the conditions set forth in this Agreement, Seller agrees to sell to Buyer, and Buyer agrees to buy from Seller, the Company Securities. 2.2 Purchase Consideration Shares 9 . In consideration of the Company Securities, Buyer agrees to issue to Seller at Closing 2,500,000 shares of common stock of Buyer, par value $0.001, subject to equitable adjustment in the event that, prior to the Closing Date, there is any share split, subdivision, combination, share dividend, extraordinary dividend or reorganization involving shares of common stock of Buyer (" Purchase Consideration Shares ").
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All actions to be taken by Seller in connection with consummation of the transactions contemplated by this Agreement and all certificates, opinions, instruments and other documents required to effect the transactions contemplated by this Agreement will be in form and substance reasonably satisfactory to Buyer.
11 All actions to be taken by Buyer in connection with consummation of the transactions contemplated by this Agreement and all certificates, opinions, instruments and other documents required to be delivered by Buyer to effect the transactions contemplated by this Agreement will be in form and substance reasonably satisfactory to Seller.
. Of the Purchase Consideration Shares, 99% will be allocated to the URN Ltd. Securities and 1% will be allocated to the URN LLC Securities. III. REPRESENTATIONS AND WARRANTIES OF SELLER Seller represents and warrants to Buyer that, as of the date of this Agreement and as of the Closing Date:
12 directly or indirectly, any securities in any corporation, partnership, or other Person, and is not a member of or a participant in any partnership, joint venture or similar enterprise, except that URN Ltd. has a 99% ownership interest in STMV (" STMV Interests "). To Seller's Knowledge, STMV does not own, directly or indirectly, any securities in any corporation, partnership, or other Person, and is not a member of or a participant in any partnership, joint venture or similar enterprise.
3.2 Capitalization, Title to the Securities
To Seller's Knowledge, except as set forth on Schedule 0 , (i) the STMV Interests are owned by URN Ltd. free and clear of any Liens, other than transfer restrictions imposed by applicable Laws; and (ii) such STMV Interests have been validly issued, are fully paid and non-assessable, and have not been issued in violation of any pre-emptive or similar rights or applicable Law. 3.3 Authority and Binding Effect . This Agreement and the transactions contemplated hereby have been duly approved by the relevant corporate bodies of Seller and constitute the valid and binding obligation of Seller, enforceable against Seller in accordance with its respective terms. . To Seller's Knowledge, except as set forth on Schedule 0 , neither the execution and delivery of this Agreement by Seller, nor the performance of Seller's obligations hereunder, will: (a) violate any applicable Law or require any filing with, consent, approval or authorization of, or notice to, any Governmental Authority; (b) (i) result in the creation of any Lien upon any of the URN LLC Securities, the URN Ltd. Securities or the STMV Interests or any assets or properties of URN LLC, URN Ltd. or STMV or (ii) constitute an event which, after notice or lapse of time or both, would result in any such creation of a Lien upon any of the URN LLC Securities, the URN Ltd. Securities or the STMV Interests or any assets or properties of URN LLC, URN Ltd. or STMV; or (c) conflict with, result in a breach of, constitute (with or without due notice or lapse of time) a default under, result in the acceleration of obligations under, create in any Third Person the right to terminate, accelerate, modify or cancel, or require a waiver, consent or notice under any Contract to which URN LLC, URN Ltd. or STMV is a party, by which URN LLC, URN Ltd. or STMV is bound or to which the assets of URN LLC, URN Ltd. or STMV are subject. To Seller's Knowledge, except as set forth on Schedule 0 :
14 STMV has a valid leasehold interest in the STMV Leased Real Property. STMV has not received any written notice of termination or cancellation of any lease agreement under which STMV uses the STMV Leased Real Property.
15 clauses (i) through (vii) hereof being collectively referred to herein as the " Seller Material Contracts "). . Except as disclosed on Schedule 3.8 : (a) the unaudited balance sheets of the Companies and STMV as of December 31, 2008 (the " Seller Fiscal Year End ") and as of June 30, 2009, and the unaudited statements of income of the Companies and STMV for the twelve (12) month period ending on the Seller Fiscal Year End and for the six month period ending on June 30, 2009 (collectively, the " Seller Financial Statements ") are based upon the books and records of the respective Companies and STMV, respectively; (b) have been prepared in accordance with GAAP consistently applied during the periods indicated; and (c) present fairly the financial position of the respective Companies and STMV on the respective dates indicated, except that the Seller Financial Statements do not contain any notes and the interim period Seller Financial Statements are subject to year-end adjustments, none of which are material. . Except as disclosed on Schedule 0 , to the Knowledge of Seller, there is no Legal Proceeding pending against either Company or STMV, except as would not, in the aggregate, have a Material Adverse Effect. 16 3.11 Brokers, Finders and Agents . No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with this Agreement or the transactions contemplated hereby based upon arrangements made by Seller, the Companies or STMV.
. Each Company and the operations of the business of the Companies (as currently conducted) are insured under various policies of general liability and other forms of insurance, which policies when taken together are of the type and in the amounts customary and adequate for each Company and the operations of the business of the Companies (as currently conducted) in all material respects. To Seller's Knowledge, STMV and the operations of its business (as currently conducted) are insured under various policies of general liability and other forms of insurance, which policies when taken together are of the type and in the amounts customary and adequate for STMV and the operations of the business of STMV (as currently conducted) in all material respects. 3.14 Employees and Labor Matters . Schedule 3.14 lists all Employees of each of the Companies and, to Seller's Knowledge, of STMV, as of the Execution Date, together with a description of their respective job titles and annual compensation (including salaries, bonuses, consulting or directors' or managers' fees and incentive or deferred compensation). Except as described on Schedule 0 , there are no Employees who have employment Contracts that are not terminable at will by the 17 respective Company or, to the Knowledge of Seller, by STMV, without payment, other than payments for past services or accrued and unpaid bonuses, commissions, vacation pay or the like, or payments required under any general policy or practice of the respective Company or STMV. Neither Company nor, to Knowledge of Seller, STMV, is a party to any collective bargaining agreement or other labor agreement with any union or labor organization (" Collective Bargaining Agreement ") and no union or labor organization has been recognized by either Company or STMV as an exclusive bargaining representative for Employees. There is no current union representation question involving Employees of either Company or, to the Knowledge of Seller, of STMV, nor does Seller have Knowledge of any activity or proceeding of any labor organization or employee group to organize any such Employees. . Except as set forth on Schedule 3.15 :
18 . To Seller's Knowledge, except as set forth on Schedule 3.16 :
. Except as set forth on Schedule 3.17 :
19
. Schedule 3.18 sets forth a true, correct and complete list of each of the Companies', and, to the Knowledge of Seller, STMV's, Bank Accounts and the names of the persons authorized to effect transactions in such accounts and with access to such boxes. 3.19 Absence of Certain Changes . Except as set forth on Schedule 3.19 , since June 30, 2009, to the Knowledge of Seller (a) there has not been any event, occurrence, development or circumstance that has had or that would reasonably be expected to have a Material Adverse Effect on the Companies or STMV, taken as a whole; and (b) the operations of the business of the Companies and STMV have been conducted only in the Ordinary Course of Business. . Seller: (a) understands that the Purchase Consideration Shares have not been, and will not be, registered under the Securities Act or under any state securities laws, are being offered and sold in reliance upon federal and state exemptions for transactions not involving any public offering and the certificates representing the Purchase Consideration Shares will contain a Securities Act legend restricting transfer; (b) is acquiring the Purchase Consideration Shares solely for such Seller's own account for investment purposes, and not with a view to the distribution thereof; (c) is an Accredited Investor and a sophisticated investor with knowledge and experience in business and financial matters; and (d) is able to bear the economic risk and lack of liquidity inherent in holding the Purchase Consideration Shares. The representations and warranties contained in this Article III (as modified by the Schedules hereto as supplemented or amended),will survive the Closing, and notwithstanding the Closing will continue in full force and effect for the benefit of Buyer for a period of twelve (12) months from the Closing Date, except for those representations in Sections (a), (b), (b), (d), 0, 1.1(a), 1.1(b), 3.5(c) and 0 which will continue in full force and effect until two months after the expiration of the applicable statute of limitations. 20 3.22 No Other Representations or Warranties; Schedules . Except for the representations and warranties contained in this Article 0 (as modified by the Schedules hereto as supplemented or amended), neither the Seller nor any other Person makes any express or implied representation or warranty with respect to the Seller, the Companies, STMV, their respective assets, properties, businesses, operations, results of operations, financial condition or liabilities, or the transactions contemplated by this Agreement, and the Seller disclaims any other representations or warranties, express or implied, whether made by the Seller, the Companies, STMV or any other Person. Except for the representations and warranties contained in this Article 0 (as modified by the Schedules hereto, as supplemented or amended), the Seller hereby disclaims all liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to Buyer or its Affiliates or Representatives (including any opinion, information, projection, or advice that may have been or may be provided to Buyer by any Representative of Seller, either Company, STMV or any other Person) with respect to Seller, either Company or STMV, their respective assets, properties, businesses, operations, results of operations, financial condition or liabilities, or the transactions contemplated by this Agreement. Seller makes no representations or warranties regarding the probable success or profitability of either Company or STMV. IV. REPRESENTATIONS AND WARRANTIES OF BUYER Buyer represents and warrants to Seller that, as of the date of this Agreement and as of the Closing Date:
21 The authorized capital of the Buyer consists of 750,000,000 shares of common stock, of which, as of October 5, 2009, 56,718,016 are issued and outstanding as fully paid and non-assessable shares in the capital of Buyer; and none of such shares was issued in violation of preemptive or other similar rights. Stock options to purchase an aggregate of 7,234,100 shares of common stock and warrants to purchase an aggregate of 8,338,375 shares of common stock were outstanding as of October 5, 2009. Except as set forth on Schedule 4.2 , Buyer does not have outstanding any options to purchase, or any preemptive rights or other rights to subscribe for or to purchase, or any securities or obligations convertible or exchangeable or exercisable for, or any contracts or commitments to issue or sell, shares of its capital stock or any such options, rights, convertible, exchangeable or exercisable securities or obligations other than options granted under Buyer's stock option plans. The capital stock of Buyer, including the common stock, conforms to the description thereof contained in the SEC Documents. The issue and sale of the Purchase Consideration Shares will not obligate Buyer to issue shares of common stock or any other securities to any Person (other than Seller) and will not result in a right of any holder of Buyer securities to adjust the exercise, conversion, exchange or reset price under such securities. All of the outstanding shares of capital stock of Buyer are validly issued, fully paid and nonassessable, have been issued in compliance with all United States federal and state and Canadian provincial securities Laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. Except as set forth in Schedule 4.2 , there are no stockholders agreements, voting agreements, registration rights agreements or other similar agreements with respect to Buyer's capital stock to which Buyer is a party or, to the Knowledge of the Buyer, any agreement between or among any of the Buyer's stockholders relating to the voting of securities of Buyer. 4.3 Purchase Consideration Shares . The Purchase Consideration Shares are duly authorized and, when issued and paid for in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by Buyer other than restrictions on transfer provided for in this Agreement. No further approval or authorization of any stockholder, the board of directors of Buyer or others is required for the issuance and sale of the Purchase Consideration Shares. . Neither Buyer nor any of its predecessors is currently, or has previously been, a Shell Company. . Buyer is not, and as a result of the sale of the Purchase Consideration Shares contemplated hereby will not be, an open-end investment company, a unit investment trust or a face-amount certificate company registered or required to be registered or a closed end investment company required to be registered, but not registered under the United States Investment Company Act of 1940, as amended. 4.6 Exchange Act Registration; No Stop Order . The Buyer's common stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and Buyer has taken no action 22 designed to, or that to its Knowledge is likely to have the effect of, terminating the registration of the common stock under the Exchange Act nor has Buyer received any notification that the Commission is contemplating terminating such registration. No order ceasing, halting or suspending trading in securities of Buyer nor prohibiting the sale of such securities has been issued to and is outstanding against Buyer or its directors or officers, and, to the best of Buyer's Knowledge, no investigations or proceedings for such purposes are pending or threatened. 4.7 SEC Documents; Canadian Disclosure Documents . Buyer is a "reporting issuer" in British Columbia, Canada, and has timely filed since the date that is eighteen (18) months preceding the Execution Date all annual information forms, prospectuses, material change reports, shareholder communications, press releases, and financial statements and other documents required to be filed by it under the securities Laws of such province (the foregoing materials being collectively referred to herein as the " Canadian Disclosure Documents "). Buyer has timely filed all SEC Documents required to be filed by it with the Commission since the date that is eighteen (18) months preceding the Execution Date pursuant to the reporting requirements of the Exchange Act, including, without limitation, the provisions of the Sarbanes-Oxley Act of 2002 that are applicable to the Buyer. As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the Commission promulgated thereunder applicable to the SEC Documents, and the Canadian Disclosure Documents complied in all material respects with the applicable requirements of Canadian securities Laws and the rules and regulations. None of the SEC Documents or the Canadian Disclosure Documents, at the time they were filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. All agreements that were required to be filed as exhibits to the SEC Documents under Item 601 of Regulation S-K to which the Buyer, UEC Sub or any Subsidiary of the Buyer is a party, or the property or assets of the Buyer, UEC Sub or any Subsidiary of Buyer are subject, have been filed as exhibits to the SEC Documents. On the Execution Date and on the Closing Date, the SEC Documents and the Canadian Disclosure Documents do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. 4.8 Financial Statements . As of their respective dates, the financial statements of Buyer included in the SEC Documents (" Buyer Financials ") and the related notes complied in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect thereto and the financial statements of Buyer included in the Canadian Disclosure Documents complied in all material respects with the applicable accounting requirements and published rules and regulations of Canadian securities Laws. The Buyer Financials and the related notes have been prepared in accordance with GAAP, consistently applied, during the periods involved (except (i) as may be otherwise indicated in the Buyer Financials or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may not include footnotes, may be condensed or summary statements or may conform to the Commission's rules and instructions for reports on Form 10-Q) and fairly present in all material respects the consolidated financial position of the Buyer as of the dates thereof and the consolidated results of its operations and cash flows for the periods then 23 ended (subject, in the case of unaudited statements, to normal and recurring year-end audit adjustments). 4.9 Amex . The common stock of Buyer is duly listed on Amex, and, to Buyer's Knowledge, there are no proceedings to revoke or suspend such listing or the listing of Buyer's common stock thereon. Buyer is in compliance with the requirements of Amex for continued listing of its common stock thereon and any other Amex listing and maintenance requirements. At the Closing, the Purchase Consideration Shares will have been duly listed on Amex. Buyer has not taken any action which would be reasonably expected to result in the delisting or suspension of quotation of the Purchase Consideration Shares on or from Amex. 4.10 Authority and Binding Effect . This Agreement and the transactions contemplated hereby have been duly approved by the relevant corporate bodies of Buyer and constitute the valid and binding obligation of Buyer, enforceable against Buyer in accordance with its respective terms. . To Buyer's Knowledge, except set forth in Schedule 0 neither the execution and delivery of this Agreement by Buyer, nor the performance of Buyer's obligations hereunder, will (a) violate any applicable Law or require any filing with, consent, approval or authorization of, or notice to, any Governmental Authority; (b) (i) result in the creation of any Lien upon any of the Purchase Consideration Shares or any assets or properties of Buyer or UEC Sub or (ii) constitute an event which, after notice or lapse of time or both, would result in any such creation of a Lien upon any of the Purchase Consideration Shares or any assets or properties of Buyer or UEC Sub; or (c) conflict with, result in a breach of, constitute (with or without due notice or lapse of time) a default under, result in the acceleration of obligations under, create in any Third Person the right to terminate, accelerate, modify or cancel, or require any notice, consent or waiver, under any Contract to which Buyer or UEC Sub is a party, by which Buyer or UEC Sub is bound or to which the assets of Buyer or UEC Sub are subject. . Except as disclosed on Schedule 4.12 , to the Knowledge of Buyer, there is no Legal Proceeding pending against Buyer or UEC Sub, except as would not, in the aggregate, have a Material Adverse Effect. To Buyer's Knowledge, Buyer and UEC Sub each possess all such Permits necessary to conduct the business operations thereof as currently conducted except where the failure to possess such Permit would not reasonably be expected to have a Material Adverse Effect, and all such Permits are in full force and effect and there are no Legal Proceedings pending or, to Buyer's Knowledge, threatened, seeking the revocation, cancellation, suspension or adverse modification thereof, except as would not, in the aggregate, reasonably be expected to have a Material Adverse Effect. 4.14 Brokers, Finders and Agents . No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with this Agreement or the transactions contemplated hereby based upon arrangements made by Buyer.
. Buyer, UEC Sub and the operations of their respective businesses (as currently conducted) are insured under various policies of general liability and other forms of insurance, which policies when taken together are of the type and in the amounts customary and adequate for Buyer, UEC and the operations of their respective businesses (as currently conducted) in all material respects. 4.17 Employees and Labor Matters . Neither Buyer nor UEC Sub is a party to any Collective Bargaining Agreement and no union or labor organization has been recognized by Buyer or UEC Sub as an exclusive bargaining representative for Employees. There is no current union representation question involving Employees of Buyer or UEC Sub, nor does Buyer have Knowledge of any activity or proceeding of any labor organization or employee group to organize any such Employees. . To Buyer's Knowledge, except as set forth on Schedule 0 : 25 Neither Buyer nor UEC Sub has since January 1, 2007 received any official and binding written notice from a Governmental Authority lawfully exercising its powers under any applicable Environmental Laws and alleging that the business of Buyer or UEC Sub as currently operated does not comply in any material respect with Environmental Laws and with Environmental Permits.
. Except as set forth on Schedule 0 :
4.20 Absence of Certain Changes . Except as set forth on Schedule 0 , since April 30, 2009, to the Knowledge of Buyer (a) there has not been any event, occurrence, development or circumstance that has had or that would reasonably be expected to have a Material Adverse Effect on Buyer; and (b) the operations of the business of Buyer and UEC Sub have been conducted only in the Ordinary Course of Business. . Buyer: (a) understands that the Company Securities have not been, and will not be, registered under the Securities Act or under any state securities laws, are being offered and sold in reliance upon federal and state exemptions for transactions not involving any public offering 26 and the certificates representing the Company Securities will contain a Securities Act legend restricting transfer; (b) is acquiring the Company Securities solely for such Buyer's own account for investment purposes, and not with a view to the distribution thereof; (c) is an Accredited Investor and a sophisticated investor with knowledge and experience in business and financial matters; (d) is able to bear the economic risk and lack of liquidity inherent in holding the Company Securities; and (e) received and accepted the offer to purchase the Company Securities in the State of Texas. The representations and warranties contained in this Article IV (as modified by the Schedules hereto as supplemented or amended), will survive the Closing, and notwithstanding the Closing will continue in full force and effect for the benefit of the Seller for a period of twelve (12) months from the Closing Date, except for those representations in Sections 4.1(a), 4.2, 4.3 and 4.10 which will continue in full force and effect until two months after the expiration of the applicable statute of limitations. 4.23 No Other Representations or Warranties; Schedules . Except for the representations and warranties contained in this Article 0 (as modified by the Schedules hereto as supplemented or amended), neither Buyer nor any other Person makes any express or implied representation or warranty with respect to the Buyer, UEC Sub, their respective assets, properties, businesses, operations, results of operations, financial condition or liabilities, or the transactions contemplated by this Agreement, and Buyer disclaims any other representations or warranties, express or implied, whether made by Buyer or any other Person. Except for the representations and warranties contained in this Article 0 (as modified by the Schedules hereto, as supplemented or amended), Buyer hereby disclaims all liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to Seller or its Affiliates or Representatives (including any opinion, information, projection, or advice that may have been or may be provided to Seller by any Representative of Buyer, Buyer or any other Person) with respect to Buyer or UEC Sub, their respective assets, properties, businesses, operations, results of operations, financial condition or liabilities, or the transactions contemplated by this Agreement. Buyer makes no representations or warranties regarding the probable success or profitability of Buyer or UEC Sub. V. AGREEMENTS
27 satisfied and to consummate the transactions contemplated by this Agreement as soon as reasonably possible and in any event prior to the Closing Date. 5.2 Management of the Companies; Conduct of the Business
28
5.3 Mutual Notification Obligations . In the event that either Buyer or Seller obtains Knowledge of any fact, event or circumstance that makes any representation or warranty of such person under this Agreement untrue, such person hereby agrees to promptly notify the other party, in accordance with the notice provisions set forth in Section 10.4 hereof, of such fact, event or circumstance and the applicable representation or warranty so affected. Buyer and Seller understand and agree that the respective party's obligation to provide any such notification to the other shall in no way relieve the notifying party of any liability for a breach by such party of any of its representations or warranties under this Agreement. 5.4 Consulting Agreement Releases . Buyer will use its commercially reasonable efforts to secure and obtain, on or prior to the Closing Date, insurance applicable to each Company and STMV and their respective businesses, to be effective commencing on the Closing Date, on commercially reasonable terms, that is sufficient for compliance with all requirements of applicable Law and of any Seller Material Contract to which each respective Company or STMV is subject and that insures against risks of the kind and in amounts for which each such Company and STMV was insured prior to Closing (the " Required Insurance "). Seller will use reasonable efforts to assist Buyer in obtaining the Required Insurance. . Buyer shall obtain and submit to the relevant Governmental Authority, no later than two Business Days after the Closing Date, replacement letters of credit or financial guarantees, or provide cash deposits or other collateral security (the " Required Sureties "), in a manner acceptable to Seller in its reasonable discretion and to the relevant Governmental Authority that issued any Permit or Environmental Permit requiring either Company to provide the Letters of Credit and in amounts and containing other terms and conditions (including drawing conditions) that are or will be sufficient to replace the Letters of Credit at Closing. Buyer will cooperate 29 with Seller to cause the Letters of Credit to be released as soon as possible after the Closing Date. From the Closing Date until such time as Seller and its Affiliates (other than the Companies) are fully released from the Letters of Credit, Buyer shall reimburse Seller and its Affiliates for actual costs and expenses in any way related to the Letters of Credit, including any amounts drawn on the Letters of Credit. The reimbursement described in this Section 0 shall not be subject to the limitations set forth in Article 0. 5.7 Release from Driscoll Agreements . Buyer will use its commercially reasonable efforts to obtain, on or prior to the earlier of December 31, 2009, or the date that is five (5) Business Days prior to the Closing Date (" Release Deadline ") evidence acceptable to Seller in its sole discretion that Seller and its Affiliates other than the Companies and STMV have been released or will be released on the Closing Date from all of their obligations under the Driscoll Agreements, including any guarantees of the obligations of any Company, STMV or Everest Exploration, Inc. provided by Seller or its Affiliates other than the Companies and STMV under the Driscoll Agreements (the " Required Releases "). Seller will use reasonable efforts to assist Buyer in obtaining the Required Releases. In the event Buyer is unable to obtain the Required Releases on or before the Release Deadline, Seller and its Affiliates, including the Companies and STMV, shall have the right, at their sole and absolute discretion, to terminate the Driscoll Agreements on or prior to the Closing Date. In the event the Driscoll Agreements are terminated as provided herein, Buyer hereby agrees to defend, indemnify and hold Seller and its Affiliates, other than the Companies and STMV, harmless from any Loss arising out of the termination of the Driscoll Agreements, which indemnification shall not be subject to the limitations set forth in Article 0 . Notwithstanding any other provision of this Agreement, the termination of the Driscoll Agreements as provided in this Section 0 shall not constitute the breach of any of the provisions contained in this Agreement, including without limitation the representations and warranties in Article 0 and the closing conditions in Article 0 . 5.8 High Plains Uranium Assignment . On or prior to the Closing Date, Seller will cause the agreements described on Schedule 0 in the form attached as Exhibit C hereto (the " Assignment ") to be assigned to Buyer. On or prior to the Closing Date, Buyer shall execute the Assignment. 5.9 Use of Parent Company Names . As soon as practicable after the Closing but in no event later than thirty (30) days after the Closing, Buyer shall remove or cause to be removed the names, marks and identifications used by the Companies or STMV and all variations and derivatives thereof and logos relating thereto from all the Companies' and STMV's respective assets, including all documentation or records prepared after the Closing Date, to the extent that they include the words "Uranium One", "Energy Metals" or "Standard Uranium." At no time shall Buyer or any Subsidiary utilize any of the foregoing names or other tradename or trademark of the Seller in connection with its ownership and operation of either Company or STMV. 30 . After the Closing Date, Buyer will afford to Seller, its Affiliates and their accountants and counsel, during normal business hours, upon reasonable request, reasonable access to the books and records of Buyer pertaining to the Companies and STMV as to periods prior to the Closing Date. 5.11 Consents and Authorizations; Regulatory Filings
5.12 Intercompany Indebtedness . At or prior to the Closing, Seller will cancel, or cause the cancellation of, Indebtedness of either Company or STMV owed to Seller or any of its Affiliates (other than the Companies and STMV). . If, prior to Closing, Buyer proposes to engage in any merger, consolidation or other transaction that would result in the holders of Buyer's common stock receiving in exchange therefor or with respect thereto, any consideration other than consideration consisting solely of additional shares of Buyer common stock (a "Buyer Transaction"), then Seller, in its sole discretion, may elect by written notice to the Buyer either (i) to terminate this Agreement, or (ii) to require as a condition to the Buyer Transaction that the parties to the Buyer Transaction, and their respective parent companies, agree for the benefit of the Seller that (A) at the Closing, Seller will receive, in lieu of the Purchase Consideration Shares, the same consideration to which the Seller would have been entitled had Seller owned the Purchase Consideration Shares immediately prior to the Buyer Transaction and (B) if such consideration includes any securities, the issuer of such securities will be bound by the provisions of the Registration Rights Agreement as if such issuer was the Buyer. . Buyer and Seller agree and acknowledge that the Companies and STMV have transferred or will transfer to Uranium One Americas, Inc. (formerly Energy Metals Corporation (US)) prior to the Closing Date the equipment described on Schedule 0 (the " Equipment "). Notwithstanding any other provision of this Agreement, the Equipment shall be excluded from 31 the transaction contemplated by this Agreement and the transfer of the Equipment to Uranium One Americas, Inc. as provided in this Section 0 shall not constitute the breach of any of the provisions of this Agreement, including without limitation Section 0, the representations and warranties in Article 0 and the closing conditions in Article 0 .
(a) Until the Closing,
neither Buyer nor any of its Affiliates shall, without the prior
written consent of Seller, directly or indirectly, hire, recruit or
solicit the employment or services of any employee of STMV (whether
as an employee, officer, director, agent, consultant or independent
contractor), or encourage to change such person's relationship with
STMV or any of its Affiliates. Nothing in this Agreement shall
prevent Seller or any of its Affiliates from hiring, recruiting or
soliciting the employment or services of any employee of STMV,
whether before or after the Closing. . Seller will use its reasonable commercial efforts to secure and obtain, on or prior to the Closing Date, either (i) the written consent of Bank of America, N.A. or its successor under the Office Lease (as defined in Schedule 3.5(a) ) with respect to the indirect change of control of STMV, or (ii) written confirmation satisfactory to Buyer, acting reasonably, that such consent is not required. . Buyer and Seller will cooperate and will use their reasonable commercial efforts to secure and obtain, on or prior to the Closing Date, the consents attached as Exhibit D hereto. . If each of the Everest Conditions (defined below) has been satisfied on or prior to the Closing Date, Seller and Buyer will cause URN Ltd. and STMV, as applicable, to release Everest Exploration Inc., effective on the Closing Date, from any obligation to make any additional capital contributions with respect to periods prior to the Closing Date or to repay to URN Ltd. 32 any capital contributions that URN Ltd. funded to STMV on Everest Exploration Inc.'s behalf with respect to periods prior to the Closing Date. The term "Everest Conditions" means: (a) Buyer has completed (i) its purchase of all of the assets of Everest Exploration Inc., including, without limitation, its 1% interest in STMV, and (ii) its assumption of certain liabilities of Everest Exploration Inc., including, without limitation, Everest Exploration Inc.'s obligations and liabilities as a partner in STMV and the obligation of Everest Exploration Inc. to make additional capital contributions to STMV, (b) evidence acceptable to Seller in its sole discretion that Uranium One Inc. and its Affiliates have been released or will be released on the Closing Date from any and all potential obligations to, or claims by, Everest Exploration Inc. of any nature whatsoever and (c) Tom Clark and Jim Crain have executed and delivered to Seller the Consulting Agreement Releases. 6.1 Conditions to Buyer's Obligations . The obligation of Buyer to take the actions required to be taken by it at the Closing is subject to the satisfaction or waiver, in whole or in part, in Buyer's sole discretion, of each of the following conditions at or prior to the Closing:
6.2 Conditions to Seller's Obligations 33 The obligation of Seller to take the actions required to be taken by it at the Closing is subject to the satisfaction or waiver, in whole or in part, in Seller's sole discretion, of each of the following conditions at or prior to the Closing:
. The obligations of Seller and Buyer to consummate the transactions provided for by this Agreement are subject to the satisfaction, at or prior to the Closing, of each of the following conditions: 34
VII. TERMINATION . This Agreement may be terminated prior to the Closing:
35
The right of termination under Section 0 is in addition to any other rights Buyer or Seller may have under this Agreement or otherwise, and the exercise of a right of termination will not be an election of remedies and will not preclude an action for breach of this Agreement. If this Agreement is terminated, all continuing obligations of the parties under this Agreement will terminate except that Article 0 will survive indefinitely unless sooner terminated or modified by the parties in writing. 36
37 specified in Buyer's notice will be admitted by Seller, and Seller will pay the amount of such Buyer Losses to Buyer. If Seller has timely disputed the liability of Seller with respect to a Buyer Claim (or an amended Buyer Claim) stating the amount of Buyer Losses claimed, Seller and Buyer will proceed in good faith to negotiate a resolution of such dispute. If a claim for indemnification has not been resolved within thirty (30) calendar days after delivery of the Seller's notice, Buyer may seek judicial recourse. If a Buyer Claim does not state the amount of Buyer Losses claimed, such omission will not preclude Buyer from recovering from Seller the amount of Buyer Losses described in such Buyer Claim if any such amount is subsequently provided in an amended Buyer Claim (although in that event, Seller will have the right to dispute the claim in accordance with the provisions of this Section 1.1(c)). In order to assert its right to indemnification under this Article 0, Buyer will not be required to provide any notice except as provided in this Section 1.1(c).
38 or greater than the Sub-Basket Amount, unless the total of all Seller Losses exceeds the Basket Amount, in which event the Seller will be entitled to indemnification only for such Seller Losses in excess of the Basket Amount. Buyer's liability for Seller Losses arising pursuant to Section 1.1(a)(i) or 1.1(a)(ii) or any Loss arising pursuant to Section 1.1(a) will not exceed the Cap. For clarity, none of the Indemnity Limitations shall apply to Buyer's liability under Section 1.1(a)(iii).
8.3 Third Party Actions Against Buyer 39
40 Neither a Buyer Indemnified Party nor Seller may concede, settle or compromise any Buyer Third Party Action without the consent of the other parties, which consents will not be unreasonably withheld or delayed. Notwithstanding the foregoing, (i) if a Buyer Third Party Action seeks the issuance of an injunction, the specific election of an obligation or similar remedy or (ii) if the subject matter of a Buyer Third Party Action relates to the ongoing business of any Buyer Indemnified Party, which Buyer Third Party Action, if decided against any Buyer Indemnified Party, would materially adversely affect the ongoing business or reputation of any Buyer Indemnified Party, the Buyer Indemnified Party alone will be entitled to settle such Buyer Third Party Action in the first instance and, if the Buyer Indemnified Party does not settle such Buyer Third Party Action, Seller will then have the right to contest and defend (but not settle) such Buyer Third Party Action. 8.4 Third Party Actions Against Seller
41 Indemnified Party or cause the Seller Indemnified Party to waive any statutory or common law privileges, breach any confidentiality obligations owed to third parties or otherwise cause any confidential information of such Seller Indemnified Party to become public.
Notwithstanding any other provision of this Agreement:
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