EXHIBIT
4.3
SALE AND ASSIGNMENT
AGREEMENT
THIS AGREEMENT is dated
for reference the 1st day of February, 2005
BETWEEN:
VICEROY MINERALS
CORPORATION , a British Columbia
corporation
("VMC")
AND:
ALEXCO RESOURCE
CORP. , a
Yukon corporation
("Alexco")
WHEREAS:
A.
VMC wishes to sell or
assign certain assets that comprise its Brewery Creek Mine near
Dawson City, Yukon Territory, on the terms and conditions set out
in this Agreement (the "Transaction" );
B.
Alexco wishes to
purchase such assets on said terms and conditions; and
C.
Pursuant to agreements
of even date and the Organization Agreement (as hereinafter
defined), Alexco has agreed to concurrently acquire both the
interest of Asset Liability Management Group ULC ( "ALM" )
in certain assets (the "ALM Assets" ) and the interest of
NovaGold Canada Inc. ( "NovaGold" ) in all the issued and
outstanding common shares in the capital of 650399 B.C. Ltd. (
"Spectrumsub" ), being 14,000,000 common shares (the
"Spectrumsub Shares" ), and to complete a private placement
financing of not less than $2,500,000.
NOW, THEREFORE, IN
CONSIDERATION of the recitals and of the mutual covenants and
agreements contained in this Agreement, the parties hereto agree as
follows:
PART 1
PURCHASE AND SALE OF
ASSETS
1.1
Description of
Assets. Upon the terms and subject to
the conditions of this Agreement, VMC agrees to sell, assign and
transfer to Alexco, and Alexco agrees to purchase and accept the
assignment and transfer from VMC, of the following assets of
VMC:
(a)
the mining assets and
infrastructure/equipment located on the Brewery Creek property in
the Yukon Territory as more particularly described in Schedule "A"
attached hereto (collectively, the "Mining Assets"
);
(b)
all rights, title and
interest of VMC in and to the 708 quartz mining claims and 93
mining leases more particularly described in Schedule "B" attached
hereto (collectively, the "Property Interests" );
and
(c)
all rights, title and
interest of VMC in and to the agreements, accords, memoranda and
licences more particularly described in Schedule "C" attached
hereto (collectively, the "Agreements and Licences"
);
(collectively, the
"Assets").
1.2
Purchase Price.
The
purchase price for the Assets is $1,800,000 (the "Purchase
Price" ) and shall be paid at Closing (as hereinafter defined)
through the issuance by Alexco to VMC of 2,686,567 common shares in
the capital of Alexco, at a deemed price of $0.67 per share (the
"Common Shares" ).
1.3
Assumption of Brewery
Creek Obligations. Concurrently with the purchase
and sale of the Assets, Alexco will assume all liabilities and
obligations of VMC under or in respect of the Property Interests
and the Agreements and Licences, including without limitation, all
liabilities and obligations under VMC's Water Use Licence issued by
the Yukon Water Board under licence no. QZ94 003, as amended by
licence no. QZ96-007, as further amended (collectively, the
"Water Licence" ) and VMC's Quartz Mining Licence issued by
the Yukon Department of Energy, Mines and Resources under licence
no. A99-001, as amended (collectively, the "Mining Licence"
) and will indemnify and save VMC harmless from and against all
losses, claims, demands, judgments and expenses whatsoever incurred
pursuant to or in respect of the Property Interests or the
Agreements and Licences. As additional consideration for the
assumption of such liabilities and obligations and the indemnity
therefor, VMC will pay to Alexco $2,500,000, to be used by Alexco
to fulfil its obligations under the Water Licence to post
replacement security thereunder, as may be determined from time to
time (the "Replacement Security" ).
1.4
Allocation of
Purchase Price. The Purchase Price shall be
allocated among the Assets as follows:
(a)
as to $800,000 to the
Mining Assets; and
(b)
as to $1,000,000 to the
Property Interests and the Agreements and Licences.
1.5
GST
Election. Alexco and VMC shall elect
jointly under s. 167(1) of the Excise Tax Act (Canada), in the form
prescribed for the purpose of that subsection, in respect of the
sale and transfer of the Assets hereunder, and Alexco shall file
such election not later than the deadline for filing its GST return
for its reporting period that includes the Closing Date (as
hereinafter defined) .
PART 2
PRE-CLOSING
MATTERS
2.1
Procure Consents and
Approvals. VMC and Alexco will use
reasonable commercial efforts to obtain before Closing, all
consents and approvals as may be prudent or necessary to permit the
transfer of the Assets by VMC to Alexco (collectively, the
"Approvals" ), as set out in Schedule "C". It is
generally understood between the parties that Alexco will work with
VMC to obtain the Approvals and assume the responsibilities
described in Schedule "C", including but not limited to consents to
the assignments of the Water Licence, the Mining Licence and the
Dawson First Nation Socio-Economic Accord.
2.2
Confidentiality.
Any information
concerning VMC, Alexco, their respective affiliates and the Brewery
Creek property disclosed to the other party or its representatives,
which has not been publicly disclosed, shall be kept strictly
confidential by them and shall not be disclosed or used by the
recipients thereof without the written consent of the other party
whether or not the Closing occurs until publicly disclosed by the
party to which such information relates, except as may be required
to enforce any provision of this Agreement, or as may otherwise be
required by any law, regulation or other legal or regulatory
requirement. The parties agree that certain elements of this
Agreement may be required to be disclosed to the Yukon Territorial
Government (the "YTG" ) and the Yukon Water Board for
purposes of assignment to Alexco of the Water Licence.
2.3
Return of
Information. If the purchase of the Assets
pursuant to this Agreement is not completed, Alexco shall return to
VMC all materials, documentation, data, records, drawings and other
papers and copies thereof (whether on paper or in electronic,
magnetic, photographic, mechanical or optical storage) relating to
the Assets which is in the possession of Alexco and will maintain
the confidentiality of all information or knowledge obtained from
VMC, and not use any such information or knowledge for any purpose
whatsoever.
2.4
Assets Transferred in
Trust. The parties acknowledge and
agree that to the extent any of the Assets are assigned or
transferred into the name of Alexco prior to the completion of
Closing and the release of all documents from the Closing escrow,
Alexco shall hold all such Assets in trust for the exclusive use
and benefit of VMC, until the completion of Closing. At all
times prior to the completion of Closing, Alexco will act on the
written direction or instruction of VMC with respect to all such
Assets. If for any reason Closing does not occur within the
time and in the manner contemplated herein, Alexco shall
immediately, and at its sole expense, take all steps and
proceedings as may be necessary to reassign or re-transfer all such
Assets back to VMC or as VMC may direct, upon receipt of a written
direction from VMC.
PART 3
REPRESENTATIONS OF
VMC
3.1
Representations.
VMC represents and
warrants to Alexco as follows, with the intent that Alexco will
rely on the representations in entering into this Agreement, and in
concluding the Transaction.
(a)
Capacity to
Sell. VMC is a corporation duly
amalgamated, validly existing under the Business Corporations Act
(British Columbia), in good standing with respect to the filing of
annual reports, and has all necessary power and capacity to carry
on its business, own and, subject to the receipt of the Approvals
contemplated herein, dispose of its interest in the Assets and to
enter into this Agreement and carry out its terms to the full
extent.
(b)
Authority to
Sell. The execution and delivery of
this Agreement, and the completion of the Transaction has been duly
and validly authorized by all necessary corporate action on the
part of VMC, and this Agreement constitutes a legal, valid and
binding obligation of VMC enforceable against VMC in accordance
with its terms, except as may be limited by laws of general
application affecting the rights of creditors.
(c)
Sale Will Not Cause
Default. Subject to receipt of the
Approvals contemplated herein, neither the execution and delivery
of this Agreement, nor the completion of the Transaction
will:
(i)
violate any of the terms
and provisions of the constating documents or bylaws of VMC, or any
order, decree, statute, bylaw, regulation, covenant, restriction
applicable to VMC or any of the Assets;
(ii)
give any person the
right to terminate, cancel or remove any of the Assets, save to the
extent that the consent of third parties is required to assign any
of the Agreements and Licences and waiver of rights of first
refusal under certain of the Agreements and Licences; or
(iii)
result in any fees,
duties, taxes, assessments or other amounts relating to any of the
Assets becoming due or payable other than Yukon sales taxes payable
by Alexco in connection with the purchase and sale of certain of
the Assets which comprise personal property, and Canadian Goods and
Services Tax payable by Alexco in connection with the purchase and
sale of certain of the Assets.
(d)
Assets.
VMC is the legal
and beneficial owner of and possesses and has good marketable title
to or has the legal right to use the Assets free and clear of all
mortgages, liens, charges, pledges, security interests,
encumbrances or other claims other than pursuant to the Agreements
and Licences and all legal and other regulatory requirements
applicable thereto.
(e)
Litigation. There is no litigation,
administrative or governmental proceedings or inquiries pending or,
to the knowledge of VMC, threatened against or relating to VMC or
any of the Assets, nor does VMC know of or have reasonable grounds
that there is any basis for any such action, proceeding or inquiry
other than the applications to amend and transfer the Water Licence
which are pending before the Yukon Water Board.
(f)
Condition of the
Assets. VMC makes no representation or
warranty, express or implied, as to the working order, condition,
fitness or suitability for any particular use or purpose of any of
the Assets, and Alexco has been afforded ample opportunity to
inspect and review the Assets and is acquiring same on an "as is,
where is" basis.
(g)
No
Defaults. Except as otherwise expressly
disclosed in this Agreement or in any Schedule to this Agreement,
to the knowledge of VMC, there has not been any default in any
obligation to be performed under any of the agreement underlying
the Assets, and that such agreements are each in good standing and
in full force and effect, except as disclosed in writing by VMC to
Alexco.
(h)
Canadian
Resident. VMC is not a non-resident of
Canada within the meaning of the Income Tax Act
(Canada).
PART 4
COVENANTS OF
VMC
4.1
Access by
Alexco. VMC will give to Alexco and
Alexco's counsel, accountants and other authorized representatives
full access, during normal business hours throughout the period
prior to Closing, to the Assets and to all of the properties,
books, contracts, commitments and records of VMC relating to the
Assets as are still in VMC's possession or control, and will
furnish to Alexco during that period all such information as Alexco
may reasonably request.
PART 5
REPRESENTATIONS OF
ALEXCO
5.1
Representations.
Alexco represents,
warrants and acknowledges to VMC as follows, with the intent that
VMC will rely on these representations, warranties and
acknowledgements in entering into this Agreement, and in concluding
the Transaction.
(a)
Status of
Alexco. Alexco is a corporation duly
incorporated, validly existing and in good standing under the
Business Corporations Act (Yukon Territory) with respect to the
filing of annual reports and has all necessary power and capacity
to carry on its business and to enter into this Agreement and carry
out its terms to full extent.
(b)
Authority to
Purchase. The execution and delivery of
this Agreement and the completion of the Transaction has been duly
and validly authorized by all necessary corporate action on the
part of Alexco, and this Agreement constitutes a legal, valid and
binding obligation of Alexco enforceable against Alexco in
accordance with its terms except as limited by laws of general
application affecting the rights of creditors.
(c)
Non-contravention
. Neither the
execution and delivery of this Agreement nor the completion and
performance of the Transaction and obligations contemplated by or
contained in this Agreement will result in a breach of or default
under, or be contrary to, any of the provisions of the charter
documents of the Alexco or any encumbrance, indenture, contract,
agreement or instrument to which Alexco is a party or by which
Alexco is bound.
(d)
Investment
Canada. Alexco is not a non-Canadian
within the meaning of the Investment Canada Act
(Canada).
(e)
GST
Registration. Alexco is a registrant for
purposes of Part IX of the Excise Tax Act (Canada), and Alexco's
registration number is 854225430 RT 0001.
(f)
Shares.
At the Closing
Time, the Shares will be duly and validly authorized, allotted and
issued as fully paid and non-assessable common shares in the
capital of Alexco.
(g)
Share
Capital. The authorized capital of
Alexco consists of 100,000,000 common shares, without nominal or
par value, of which one common share was issued and outstanding as
at the date of this Agreement.
(h)
No
Options. Alexco is not a party to, and
Alexco has n
