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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): |
October 10, 2023 |
McEWEN MINING INC.
(Exact name of registrant as specified in
its charter)
Colorado |
|
001-33190 |
|
84-0796160 |
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS Employer Identification No.) |
150 King Street West, Suite 2800
Toronto,
Ontario, Canada
|
M5H 1J9 |
(Address of principal executive offices) |
(Zip Code) |
Registrant’s telephone number including area code: |
(866) 441-0690 |
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of
the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
Common Stock |
|
MUX |
|
New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of
the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth
company ¨
If an emerging
growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with
any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 | Entry Into a Material Definitive
Agreement |
On October 11, 2023, and
McEwen Copper Inc. “McEwen Copper”), a privately-held Alberta, Canada subsidiary of McEwen Mining Inc. (the “Company”),
announced consummated agreements pursuant to which a single investor purchased 1,900,000 shares of McEwen Copper common stock from that
entity for gross proceeds of ARS $42,000,000 ($119,976,004.80 at a deemed USD/ARS exchange rate of 350.07) (the “Stellantis Private
Placement”). The purchaser of the McEwen Copper common stock is FCA Argentina S.A., an Argentinian subsidiary of Stellantis
N.V., a public limited liability company organized under the laws of The Netherlands (“Stellantis”).
The Stellantis Private
Placement was concluded pursuant to the terms of a Private Placement Subscription Agreement between McEwen Copper and Stellantis dated
as of October 10, 2023 (the “Subscription Agreement”). The Stellantis Private Placement closed on October 10,
2023.
In connection with the
Stellantis Private Placement, the Company, McEwen Copper, Minera Andes Inc., a subsidiary of the Company, Robert McEwen (collectively,
the Company, McEwen Copper, Minera Andes and Mr. McEwen are referred to as the “McEwen Parties”) and Stellantis agreed
to Amendment No. 2, dated October 10, 2023 (the “IRA Amendment”), to that certain Investor Rights Agreement, dated
February 24, 2023 (the “IRA”). The IRA Amendment provides that the Carbon Neutral Commitment by 2038 in the IRA is
not contingent on Stellantis maintaining a certain minimum ownership percentage in McEwen Copper. McEwen Copper intends to implement this
commitment independent of Stellantis’ involvement in the Los Azules Project.
In connection with the
Stellantis Private Placement, the McEwen Parties entered into Amendment No. 1, dated October 10, 2023 (the “CCCPRA Amendment”),
to that certain Copper Cathodes and Concentrates Purchase Rights Agreement, dated February 24, 2023 (the “CCCPRA”).
The CCCPRA Amendment provides for a minimum 10,000 tonne per annum copper cathode offtake, subject to certain restrictions and exclusions,
and further defined “market price” to be paid by Stellantis on future copper cathode purchases pursuant to the CCCPRA.
On
October 10, 2023, McEwen Copper entered into a binding agreement with Nuton LLC, a current shareholder of McEwen Copper and subsidiary
of Rio Tinto (“Nuton”), pursuant to which Nuton agreed to invest $10 million to acquire 152,615 shares of McEwen Copper
common stock from McEwen Copper (the “Nuton Private Placement”). Additionally, in a separate but related transaction
Nuton has also agreed to purchase 232,000 shares of McEwen Copper common stock from the Company in a secondary sale (the “Nuton
Secondary Transaction” and together with the Nuton Private Placement, the “Nuton Transactions”). The Nuton
Transactions are expected to close by October 19, 2023, and the proceeds are expected to be $4 million to McEwen Copper and $6 million
to the Company.
In connection with the
Nuton Transactions, McEwen Copper and certain of its affiliates agreed to amend the Nuton Collaboration Agreement, dated August 30, 2022,
as amended by Amendment No. 1 to the Nuton Collaboration Agreement, dated March 9, 2023, to extend the period of exclusivity over novel,
trade secret or patented copper heap leach technologies until February 1, 2025.
Assuming
consummation of each of the transactions discussed above, on a fully diluted basis, the Company would own 47.7% of McEwen Copper common
stock and Stellantis and Nuton would own 19.4% and 14.5%, respectively, of McEwen Copper common stock.
Each
of the agreements discussed above may contain customary representations, warranties, conditions and agreements in connection with the
transactions. They are not intended to provide any other factual information about the Company, McEwen Copper, or any other
Company subsidiary. The representations, warranties and covenants contained in the agreements were made only for purposes of such agreements
and as of specific dates, were solely for the benefit of the parties to such agreements and may be subject to limitations agreed upon
by the contracting parties.
The foregoing
agreements relating to the Nuton Transactions are intended to be filed as exhibits to the Company’s Quarterly Report on Form 10-Q
for the quarter ended September 30, 2023, anticipated to be filed with the United States Securities and Exchange Commission (“SEC”)
on or before November 9, 2023. Interested parties are encouraged to read in their entirety the agreements when they become available,
as they contain important information not discussed in this report.
The
sales of McEwen Copper common stock was made in transactions not registered with the SEC. Specifically, in the case of
the Nuton Secondary Transaction the offers and sales were exempt from the registration requirements of the Securities Act of
1933, as amended (the “Securities Act”), including under Sections 4(a)(1) and 4(a)(2) of the Securities Act
and regulations, interpretive statements and letters issued by the SEC or its staff and decisions of courts thereunder and / or
Regulation S under the Securities Act; and in the case of the Stellantis Private Placement and the Nuton Private Placement, pursuant
to Section 4(a)(2) of the Securities Act, Regulation S and/or Rule 506 of Regulation D, each promulgated under the Securities
Act. Each of the investors in the offerings in the U.S. was an accredited investor as defined in Regulation D. In each transaction
exempt under Regulation S, the offers and sales were made in offshore transactions and no directed selling efforts were made in the
U.S. In each case, offering restrictions were imposed.
Item 3.02 | Unregistered Sales of Equity Securities |
The information set forth in Item 1.01 above is
incorporated by reference into this Item 3.02.
Item 7.01 | Financial Statements and Exhibits. |
On October 11, 2023, the Company issued a press
release announcing the completion of the Stellantis Private Placement. On the same date, the Company issued another press release announcing
the agreement of Nuton Private Placement and the Nuton Secondary Transaction. Copies of those press releases are furnished with this report
as Exhibit 99.1 and Exhibit 99.2.
The information furnished under this Item 7.01,
including the referenced exhibits, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of
1934, nor shall they be deemed incorporated by reference in any filing under the Securities Act of 1933, except as shall be expressly
set forth by reference to such filing.
Item 9.01 | Financial Statements
and Exhibits. |
(d) Exhibits. The following exhibits
are furnished or filed with this report, as applicable:
Cautionary Statement
With the exception of
historical matters, the matters discussed in the press releases attached as exhibits hereto include forward-looking statements within
the meaning of applicable securities laws that involve risks and uncertainties that could cause actual results to differ materially from
projections or estimates contained therein. Such forward-looking statements include, among others, statements regarding future production
and cost estimates, exploration, development, construction and production activities. Factors that could cause actual results to differ
materially from projections or estimates include, among others, future drilling results, metal prices, economic and market conditions,
operating costs, receipt of permits, and receipt of working capital, as well as other factors described in the Company’s Annual
Report on Form 10-K for the year ended December 31, 2022, and other filings with the United States Securities and Exchange Commission.
Most of these factors are beyond the Company’s ability to predict or control. The Company disclaims any obligation to update any
forward-looking statement made in the press releases attached as exhibits hereto, whether as a result of new information, future events,
or otherwise. Readers are cautioned not to put undue reliance on forward-looking statements.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
McEWEN MINING INC. |
|
|
|
Date: October 16, 2023 |
By: |
/s/ Carmen Diges |
|
|
Carmen Diges, General Counsel |
Exhibit 99.1
McEwen Copper Closes ARS $42 Billion Investment by
Stellantis
TORONTO, Oct. 11, 2023 (GLOBE NEWSWIRE) -- McEwen
Copper Inc., a subsidiary of McEwen Mining Inc. (NYSE: MUX) (TSX: MUX), is pleased to announce the closing of an additional ARS $42
billion investment by Stellantis, one of the world’s leading automakers and mobility providers with iconic brands including Abarth,
Alfa Romeo, Chrysler, Citroën, Dodge, DS Automobiles, Fiat, Jeep®, Lancia, Maserati, Opel, Peugeot, RAM, Vauxhall, Free2Move
and Leasys.
Stellantis N.V. (“Stellantis”), which
in February 2023 invested ARS $30 billion, has today invested an additional ARS $42 billion in Argentina to acquire shares
of McEwen Copper in a private placement of 1,900,000 common shares. The proceeds of the private placement will be used to advance development
of the Los Azules copper project in San Juan, Argentina, and for general corporate purposes.
Giving effect to the pending investment by Nuton
LLC, also announced today, Stellantis increases its ownership to 19.4% of McEwen Copper and McEwen Mining owns 47.7% on
a fully diluted basis. The Transaction values McEwen Copper at approximately US$800 million.
In connection with the Transaction, McEwen Copper
and certain of its affiliates amended the Investor Rights Agreement with Stellantis (the "Stellantis IRA”) and the Copper Cathodes
and Concentrates Purchase Rights Agreement (the “CCCPRA”), further described below.
The Stellantis IRA was amended to make
the Carbon Neutral Commitment by 2038 not contingent on Stellantis maintaining a certain minimum ownership percentage in McEwen Copper.
McEwen Copper intends to implement this commitment independent of Stellantis’ involvement in the Los Azules project.
The CCCPRA was amended to provide for a
minimum 10,000 tonne per annum copper cathode offtake, subject to certain restrictions and exclusions, and further defined ‘market
price’ to be paid by Stellantis on future copper cathode purchases pursuant to the CCCPRA.
This press release shall not constitute an offer
to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful.
About McEwen Copper
McEwen Copper Inc. holds a 100% interest in the
Los Azules copper project in San Juan, Argentina and the Elder Creek project in Nevada, USA.
Los Azules was ranked in the top 10 largest undeveloped
copper deposits in the world by Mining Intelligence (2022). Its current copper resources are estimated at 10.9 billion pounds
at a grade of 0.40% Cu (Indicated category) and an additional 26.7 billion pounds at a grade of 0.31% Cu (Inferred category).
A PEA published in June 2023 estimated a $2.7 billion after-tax NPV8% at $3.75/lb Cu and a 27-year mine life.
After closing the Nuton LLC investment, also announced
today, McEwen Copper will have 30,937,615 common shares outstanding, and its shareholders are McEwen Mining Inc. 47.7%, Stellantis 19.4%,
Nuton 14.5%, Rob McEwen 12.9%, Victor Smorgon Group 3.2%, and other shareholders 2.3%.
About Stellantis
Stellantis
N.V. (NYSE: STLA / Euronext Milan: STLAM / Euronext Paris: STLAP) is one of the world’s leading automakers and a mobility provider.
Its storied and iconic brands embody the passion of their visionary founders and today’s customers in their innovative products
and services, including Abarth, Alfa Romeo, Chrysler, Citroën, Dodge, DS Automobiles, Fiat, Jeep®, Lancia, Maserati, Opel, Peugeot,
Ram, Vauxhall, Free2move and Leasys. Powered by our diversity, we lead the way the world moves – aspiring to become the greatest
sustainable mobility tech company, not the biggest, while creating added value for all stakeholders as well as the communities in which
it operates. For more information, visit www.stellantis.com.
CAUTION CONCERNING FORWARD-LOOKING STATEMENTS
This news
release contains certain forward-looking statements and information, including "forward-looking statements" within the meaning
of the Private Securities Litigation Reform Act of 1995. The forward-looking statements and information expressed, as at the date of this
news release, McEwen Mining Inc.'s (the "Company") estimates, forecasts, projections, expectations or beliefs as to future events
and results. Forward-looking statements and information are necessarily based upon a number of estimates and assumptions that, while considered
reasonable by management, are inherently subject to significant business, economic and competitive uncertainties, risks and contingencies,
and there can be no assurance that such statements and information will prove to be accurate. Therefore, actual results and future events
could differ materially from those anticipated in such statements and information. Risks and uncertainties that could cause results or
future events to differ materially from current expectations expressed or implied by the forward-looking statements and information include,
but are not limited to, fluctuations in the market price of precious metals, mining industry risks, political, economic, social and security
risks associated with foreign operations, the ability of the corporation to receive or receive in a timely manner permits or other approvals
required in connection with operations, risks associated with the construction of mining operations and commencement of production and
the projected costs thereof, risks related to litigation, the state of the capital markets, environmental risks and hazards, uncertainty
as to calculation of mineral resources and reserves, and other risks. Readers should not place undue reliance on forward-looking statements
or information included herein, which speak only as of the date hereof. The Company undertakes no obligation to reissue or update forward-looking
statements or information as a result of new information or events after the date hereof except as may be required by law. See McEwen
Mining's Annual Report on Form 10-K for the fiscal year ended December 31, 2022 and other filings with the Securities and Exchange
Commission, under the caption "Risk Factors", for additional information on risks, uncertainties and other factors relating
to the forward-looking statements and information regarding the Company. All forward-looking statements and information made in this news
release are qualified by this cautionary statement.
The NYSE and TSX have not reviewed and do not
accept responsibility for the adequacy or accuracy of the contents of this news release, which has been prepared by management of McEwen
Mining Inc.
ABOUT MCEWEN MINING
McEwen Mining
is a gold and silver producer with operations in Nevada, Canada, Mexico and Argentina. In addition, it owns approximately 47.7% of McEwen
Copper which owns the large, advanced stage Los Azules copper project in Argentina. The Company’s goal is to improve the productivity
and life of its assets with the objective of increasing its share price and providing a yield. Its Chairman and Chief Owner has personally
provided the company with $220 million and takes an annual salary of $1.
WEB SITE
www.mcewenmining.com
CONTACT INFORMATION
150 King Street West
Suite 2800, PO Box 24
Toronto, ON, Canada
M5H 1J9
Relationship with Investors:
(866)-441-0690 Toll free
(647)-258-0395
Mihaela Iancu ext. 320
info@mcewenmining.com
|
SOCIAL MEDIA |
|
|
|
McEwen Mining |
|
Facebook:
LinkedIn:
Twitter:
Instagram: |
facebook.com/mcewenmining
linkedin.com/company/mcewen-mining-inc-
twitter.com/mcewenmining
instagram.com/mcewenmining |
|
|
|
|
McEwen Copper |
|
Facebook:
LinkedIn:
Twitter:
Instagram: |
facebook.com/ mcewencopper
linkedin.com/company/mcewencopper
twitter.com/mcewencopper
instagram.com/mcewencopper |
|
|
|
|
Rob McEwen |
|
Facebook:
LinkedIn:
Twitter: |
facebook.com/mcewenrob
linkedin.com/in/robert-mcewen-646ab24
twitter.com/robmcewenmux |
|
|
Exhibit 99.2
McEwen Copper Announces an Additional US$10
Million Investment by Nuton, a Rio Tinto Venture
TORONTO, Oct. 11, 2023 (GLOBE NEWSWIRE) -- McEwen
Copper Inc., a subsidiary of McEwen Mining Inc. (NYSE: MUX) (TSX: MUX), is pleased to announce a binding agreement
for an additional $10.0 million investment by Nuton LLC, a Rio Tinto Venture, and existing McEwen Copper shareholder.
Nuton has agreed to invest US$10.0 million
to acquire shares of McEwen Copper in a two-part transaction expected to close by October 19th, 2023 (the “Nuton
Transaction”) consisting of a private placement of 152,615 McEwen Copper common shares, and the purchase of 232,000 common shares
owned by McEwen Mining in a secondary sale. Proceeds of the subscription and purchase are expected to be approximately $4.0 million to
McEwen Copper and $6.0 million to McEwen Mining, respectively. The proceeds of the private placement will be used to advance the development
of the Los Azules copper project in San Juan, Argentina, and for general corporate purposes.
After closing, Nuton will own 14.5% of
McEwen Copper on a fully diluted basis, and McEwen Mining will own 47.7%. The transaction values McEwen Copper at approximately
US$800 million.
In connection with the Transaction, McEwen Copper
and certain of its affiliates agreed to amend the Nuton Collaboration Agreement to extend the period of exclusivity over novel,
trade secret or patented copper heap leach technologies until February 1st, 2025.
This press release shall not constitute an offer
to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful.
About Nuton
Nuton is
an innovative new venture that aims to help grow Rio Tinto’s copper business. At the core of Nuton is a portfolio of proprietary
copper leach-related technologies and capability – a product of almost 30 years of research and development. Nuton™ Technologies
offer the potential to economically unlock copper sulphide resources, copper bearing waste and tailings, and achieve higher copper recoveries
on oxide and transitional material, allowing for a significantly increased copper production. One of the key differentiators of Nuton is the
potential to deliver leading environmental performance, including more efficient water usage, lower carbon emissions, and the ability
to reclaim mine sites by reprocessing mine waste.
About McEwen Copper
McEwen Copper Inc. holds a 100% interest in the
Los Azules copper project in San Juan, Argentina and the Elder Creek project in Nevada, USA.
Los Azules was ranked in the top 10 largest undeveloped
copper deposits in the world by Mining Intelligence (2022). Its current copper resources are estimated at 10.9 billion pounds
at a grade of 0.40% Cu (Indicated category) and an additional 26.7 billion pounds at a grade of 0.31% Cu (Inferred category).
A PEA published in June 2023 estimated a $2.7 billion after-tax NPV8% at $3.75/lb Cu and a 27-year mine life.
After closing the Stellantis investment, also
announced today, and the pending investment by Nuton, McEwen Copper will have 30,937,615 common shares outstanding, and its shareholders
are: McEwen Mining Inc. 47.7%, Stellantis 19.4%, Nuton 14.5%, Rob McEwen 12.9%, Victor Smorgon Group 3.2%, and other shareholders 2.3%.
CAUTION CONCERNING FORWARD-LOOKING STATEMENTS
This news
release contains certain forward-looking statements and information, including "forward-looking statements" within the meaning
of the Private Securities Litigation Reform Act of 1995. The forward-looking statements and information expressed, as at the date of this
news release, McEwen Mining Inc.'s (the "Company") estimates, forecasts, projections, expectations or beliefs as to future events
and results. Forward-looking statements and information are necessarily based upon a number of estimates and assumptions that, while considered
reasonable by management, are inherently subject to significant business, economic and competitive uncertainties, risks and contingencies,
and there can be no assurance that such statements and information will prove to be accurate. Therefore, actual results and future events
could differ materially from those anticipated in such statements and information. Risks and uncertainties that could cause results or
future events to differ materially from current expectations expressed or implied by the forward-looking statements and information include,
but are not limited to, fluctuations in the market price of precious metals, mining industry risks, political, economic, social and security
risks associated with foreign operations, the ability of the corporation to receive or receive in a timely manner permits or other approvals
required in connection with operations, risks associated with the construction of mining operations and commencement of production and
the projected costs thereof, risks related to litigation, the state of the capital markets, environmental risks and hazards, uncertainty
as to calculation of mineral resources and reserves, and other risks. Readers should not place undue reliance on forward-looking statements
or information included herein, which speak only as of the date hereof. The Company undertakes no obligation to reissue or update forward-looking
statements or information as a result of new information or events after the date hereof except as may be required by law. See McEwen
Mining's Annual Report on Form 10-K for the fiscal year ended December 31, 2022 and other filings with the Securities and Exchange
Commission, under the caption "Risk Factors", for additional information on risks, uncertainties and other factors relating
to the forward-looking statements and information regarding the Company. All forward-looking statements and information made in this news
release are qualified by this cautionary statement.
The NYSE and TSX have not reviewed and do
not accept responsibility for the adequacy or accuracy of the contents of this news release, which has been prepared by management of
McEwen Mining Inc.
ABOUT MCEWEN MINING
McEwen Mining
is a gold and silver producer with operations in Nevada, Canada, Mexico and Argentina. In addition, it owns approximately 47.7% of McEwen
Copper which owns the large, advanced stage Los Azules copper project in Argentina. The Company’s goal is to improve the productivity
and life of its assets with the objective of increasing its share price and providing a yield. Its Chairman and Chief Owner has personally
provided the company with $220 million and takes an annual salary of $1.
WEB SITE
www.mcewenmining.com
CONTACT INFORMATION
150 King Street West
Suite 2800, PO Box 24
Toronto, ON, Canada
M5H 1J9
Relationship with Investors:
(866)-441-0690 Toll free
(647)-258-0395
Mihaela Iancu ext. 320
info@mcewenmining.com
|
SOCIAL MEDIA |
|
|
|
McEwen Mining |
|
Facebook:
LinkedIn:
Twitter:
Instagram: |
facebook.com/mcewenmining
linkedin.com/company/mcewen-mining-inc-
twitter.com/mcewenmining
instagram.com/mcewenmining |
|
|
|
|
McEwen Copper |
|
Facebook:
LinkedIn:
Twitter:
Instagram: |
facebook.com/ mcewencopper
linkedin.com/company/mcewencopper
twitter.com/mcewencopper
instagram.com/mcewencopper |
|
|
|
|
Rob McEwen |
|
Facebook:
LinkedIn:
Twitter: |
facebook.com/mcewenrob
linkedin.com/in/robert-mcewen-646ab24
twitter.com/robmcewenmux |
|
|
Exhibit 99.3
McEWEN COPPER INC.
(the “Issuer”)
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(COMMON SHARES)
INSTRUCTIONS TO SUBSCRIBER
| 1. | You must complete all the information in the boxes on page ii and sign where indicated with an “X”. |
| 2. | You must complete and
sign Exhibit “A” - “Canadian Investor Questionnaire” that starts on page A-1. The purpose of this form
is to determine whether you meet the standards for participation in a private placement under applicable Canadian securities laws. In
order for the Issuer to satisfy its obligations under applicable Canadian securities laws, you may be required to provide additional evidence
to verify the information you have provided in Exhibit “A” - “Canadian Investor Questionnaire” that starts
on page A-1. |
| 3. | A completed and signed copy of the Subscription Agreement must be delivered to: |
McEwen Copper Inc.
150 King Street West, S. 2800
Toronto, ON M5H 1J9
| Attention: | Carmen
Diges |
| Email: | cdiges@mcewenmining.com |
McEWEN COPPER INC.
PRIVATE
PLACEMENT SUBSCRIPTION AGREEMENT
The
undersigned (the “Subscriber”) hereby subscribes for the number of common shares in the capital of McEwen Copper
Inc. (the “Issuer”) set out below, subject to the terms and conditions set forth in the attached “Terms and Conditions
of Subscription for Common Shares” (the “Terms and Conditions”), which are hereby agreed between the Subscriber
and the Issuer.
Subscriber
Information |
|
Common
Shares to be Issued to the Subscriber |
|
|
|
|
|
|
FCA
Argentina S.A. |
|
Number
of Common Shares: 1,900,000 |
(Name
of Subscriber) |
|
(the
“Common Shares”) |
|
|
|
|
|
Subscription
Amount: US$49,400,000 |
|
|
(the
“Subscription Amount”) |
|
|
|
Miguel
Ignacio Prefumo |
|
If
the Subscriber is subscribing as an agent on behalf of a beneficial purchaser (check the appropriate box) |
Attorney
in fact |
|
|
|
|
|
Germán
Federico Penelas
Attorney
in fact |
|
¨ the
Subscriber is a trust company or trust corporation or a registered adviser acting on behalf of a fully managed account and deemed
under applicable securities laws to be purchasing as principal, or |
|
|
|
|
|
¨ the
following information is true and correct and, as applicable, Exhibit “A” hereto has been completed for each beneficial
purchaser: |
|
|
|
Carlos
María Della Paolera 265, 22nd floor |
|
|
C1001ADA,
Buenos Aires, Argentina |
|
|
(Subscriber’s
Address, including postal or zip code) |
|
(Name
of Beneficial Purchaser) |
|
|
|
54
11 4310-4000 |
|
(Address
of Beneficial Purchaser) |
(Telephone
Number) |
|
|
|
|
(Beneficial
Purchaser’s Telephone Number) |
francisco.bellucci@stellantis.com;
german.penelas@stellantis.com |
|
|
(Email
Address) |
|
(Beneficial
Purchaser’s E-Mail Address) |
Register
the Common Shares as set forth below: |
|
Deliver
the Common Shares as set forth below: |
|
|
|
FCA
Argentina S.A. |
|
McCarthy
Tétrault LLP |
(Name to Appear on Share Certificate) |
|
Attention:
Peter Quon |
|
|
|
|
|
(Attention
- Name) |
(Account Reference, if applicable) |
|
|
|
|
(Account
Reference, if applicable) |
|
|
McCarthy
Tétrault LLP |
Carlos María Della Paolera
265, 22nd floor |
|
Suite 2400 |
C1001ADA, Buenos Aires, Argentina |
|
745
Thurlow Street |
|
|
Vancouver
BC V6E 0C5 |
(Address, including postal
or zip code) |
|
|
|
|
(Street
Address, including postal or zip code – no PO Boxes permitted) |
|
|
|
|
|
(Telephone
Number) |
ACCEPTANCE
The Issuer hereby accepts the Subscription (as
defined herein) on the terms and conditions contained in this private placement subscription agreement (this “Agreement”)
as of the 10th day of October, 2023.
McEWEN COPPER INC. |
|
|
|
|
Per: |
/s/ Robert McEwen |
|
|
Authorized Signatory |
|
TERMS AND CONDITIONS OF
SUBSCRIPTION FOR COMMON SHARES
1.1 On
the basis of the representations and warranties, and subject to the terms and conditions, set forth in this Agreement, the Subscriber
hereby subscribes for the Common Shares for the Subscription Amount shown on page ii of this Agreement (such subscription of the
Common Shares being the “Subscription”) by way of a private placement offering (the “Offering”),
and the Issuer agrees to issue and deliver the Common Shares to the Subscriber, effective upon the Closing Date.
2.1 Subject
to the other terms and conditions hereof, the Subscription Amount shall be paid and satisfied by the assignment by the Subscriber
to the Issuer of all of the Subscriber’s rights, title and interest to the ICC (as defined below), and the following six steps shall
occur in sequence, with each step immediately following the preceding step, at the Closing:
| (a) | the Subscriber shall deliver
an offer to Andes Corporacion Minera S.A. (“ACM”) in the form attached as Exhibit “B” hereto
(the “ICC Agreement”), duly executed by the Subscriber, pursuant to which the Subscriber will offer to make an irrevocable
capital contribution (aporte irrevocable) (“ICC”) on account of future capital subscription to ACM of an amount
in Argentine Pesos equal to the Subscription Amount, converted by applying the Exchange Rate (such converted amount, the “ICC
Amount”), |
| (b) | the Issuer shall cause ACM to deliver to the Subscriber an acceptance to the Subscriber’s offer
to enter into the ICC Agreement, duly executed by ACM; |
| (c) | the Subscriber shall contribute the ICC Amount by delivering to ACM an e-cheque (cheque electrónico)
issued by Santander Valores in favour of FCA Automobiles Argentina S.A., which will duly endorse such e-cheque in favour of the Subscriber
which will duly endorse such e-cheque in favour of ACM; |
| (d) | ACM shall deliver to the Subscriber a letter acknowledging receipt of the ICC Amount; |
| (e) | the Subscriber shall deliver an offer to the Issuer in the form attached hereto as Exhibit “C”
(the “ICC Assignment Agreement”), duly executed by the Subscriber, and the Issuer shall deliver an acceptance to such
offer to enter into the ICC Assignment Agreement, duly executed by the Issuer; |
| (f) | the Subscriber shall deliver a notice to ACM informing ACM of the ICC Assignment Agreement; |
| (g) | the Issuer shall issue and deliver to the Subscriber a share certificate representing the number of Common
Shares shown on page ii of this Agreement and deliver a certified copy of the updated central securities register of the Issuer reflecting
such issuance; |
(together, the “Closing”).
| 3. | Documents Required from Subscriber |
3.1 The
Subscriber must complete, sign and return to the Issuer the following documents:
| (b) | the Canadian Investor
Questionnaire (the “Questionnaire”) attached as Exhibit “A” that starts on page A-1, along with
any additional evidence that may be requested by the Issuer to verify the information provided in the Questionnaire; and |
| (c) | such other supporting documentation that the Issuer may request to establish the Subscriber’s eligibility
to participate in the Offering. |
The Subscriber acknowledges and agrees that the
Issuer will not consider the Subscription for acceptance unless the Subscriber has provided all of such documents to the Issuer.
3.2 As
soon as practicable upon any request by the Issuer, the Subscriber will complete, sign and return to the Issuer any additional
documents, questionnaires, notices and undertakings the Issuer may reasonably require or otherwise, may be required by any Governmental
Authority or Applicable Laws.
| 4. | CLOSING DATE AND CONDITIONS TO CLOSING |
4.1 Subject
to the satisfaction of the conditions set forth below in Section 4.2, the date of the Closing (the “Closing Date”)
October 10, 2023, or such other date as may be determined by mutual agreement between the Issuer and the Subscriber.
4.2 The
Subscription is subject to the following conditions for the benefit of the Subscriber (any of which may be waived by the Subscriber in
its sole discretion):
| (a) | the Issuer having obtained all necessary approvals and consents for the Offering, including approval of
the Issuer’s shareholders under the Shareholder Agreement in respect of the IRA Amendment and the CCCPRA Amendment, and having delivered
a copy of the executed shareholder resolution to the Subscriber; |
| (b) | (i) the Issuer having delivered a notice to the shareholders of the Issuer regarding the proposed
issuance of common shares of the Issuer to the Subscriber and the shareholders’ pre-emptive rights to participate in such proposed
issuance in accordance with the unanimous shareholder agreement of the Issuer dated August 20, 2021 (the “Shareholder Agreement”);
and (ii) the Issuer having delivered to the Subscriber a copy of waivers of such pre-emptive rights from each of the shareholders,; |
| (c) | the Issuer having delivered to the Subscriber: |
| (i) | an original share certificate representing the Common Shares (“Certificate”); |
| (ii) | an amendment to the Investor Rights Agreement, substantially in the form attached hereto as Exhibit “D”
(the “IRA Amendment”), duly executed by the Issuer, McEwen Mining Inc. (“MUX”), Minera Andes Inc.
(“MAI”) and Robert McEwen; |
| (iii) | an amendment to the Copper
Cathodes and Concentrates Purchase Rights Agreement, substantially in the form attached hereto as Exhibit “E”, duly executed
by ACM, (the “CCCPRA Amendment”); |
| (iv) | a certificate of status for the Issuer dated no earlier than one Business Day prior to the Closing Date;
and |
| (v) | a certificate of an officer of the Issuer certifying (A) the articles and by-laws of the Issuer,
(B) the satisfaction of the conditions set forth in Section 4.2(b), and (C) and the shareholders’ and directors’
resolutions of the Issuer approving the transactions contemplated by this Agreement; and |
| (vi) | a certificate of an officer of ACM certifying (A) its constating documents; (B) the resolutions
of its board of directors approving (1) the entering into and completion of the transactions contemplated under this Agreement and
the other Transaction Documents to which it is a party and (2) the acceptance of the offer to enter into the ICC Agreement and the
contribution by the Subscriber to ACM of the ICC Amount; (3) resolutions of its sole shareholder approving the acceptance of the
offer to enter into the ICC Agreement and the contribution by the Subscriber to ACM of the ICC Amount; |
| (d) | the Subscriber having received
a legal opinion prepared by Vargas Galindez dated as of the Closing Date (the “Vargas Opinion”), in form and
substance satisfactory to the Subscriber, acting reasonably; |
| (e) | the Subscriber having received
a legal opinion prepared by external counsel to the Cayman Subsidiaries dated as of the Closing Date, in form and substance satisfactory
to the Subscriber, acting reasonably, with respect to each of the Cayman Subsidiaries’ organizational status, good standing, share
capitalization, no outstanding litigation and other matters customary in transactions similar to the transactions contemplated by this
Agreement; |
| (f) | the issue and sale of the Common
Shares being exempt from the requirement to file a prospectus and the requirement to deliver an offering memorandum under applicable securities
laws relating to the sale of the Common Shares, or the Issuer having received such orders, consents or approvals as may be required to
permit such sale without the requirement to file a prospectus or deliver an offering memorandum; and |
| (g) | the Subscriber having received written confirmation, in the form attached hereto as Exhibit “F”,
signed by Nuton LLC, consenting to the transactions contemplated under this Agreement, the IRA Amendment and the CCCPRA Amendment. |
| 5. | Acknowledgements and Agreements of the Subscriber |
5.1 The
Subscriber acknowledges and agrees that:
| (a) | no prospectus has been filed by the Issuer with any securities commission or any other regulatory authority
in connection with the issuance of the Common Shares; |
| (b) | the Subscriber has not received, nor has the Subscriber requested nor had any need to receive, or been
provided with a prospectus, offering memorandum or any document purporting to describe the business and affairs of the Issuer which has
been prepared for review by prospective purchasers to assist in making an investment decision in respect of the Common Shares and that
the Subscriber’s decision, or, if applicable, the decision of others for whom the undersigned is contracting hereunder, to enter
into this Agreement and to subscribe for the Common Shares is based entirely upon this Agreement and publicly available information concerning
the Issuer and not upon any other verbal or written representation as to fact or otherwise made by or on behalf of the Issuer; |
| (c) | the Issuer’s constating documents contain restrictions on the transfer of the Common Shares, which
provide that no Common Shares may be transferred without the prior approval of the board of directors of the Issuer; |
| (d) | the Issuer is not a “reporting issuer” as that term is defined in applicable Canadian securities
laws, nor will it become a reporting issuer in any jurisdiction in Canada or elsewhere upon completion of the Offering and, as a result: |
| (i) | unless the Issuer becomes a reporting issuer at a later date, the Issuer will not be subject to the continuous
disclosure requirements of any securities laws, including any requirement relating to the production and filing of audited financial statements
or other financial information, and |
| (ii) | any applicable hold periods under applicable securities laws may never expire, and the Common Shares may
be subject to restrictions on resale for an indefinite period of time; |
| (e) | the issuance of the Common Shares will be made pursuant to exemptions from the registration and prospectus
requirements of applicable Canadian securities laws and therefore: |
| (i) | the Subscriber is restricted from using those civil remedies which would otherwise be available to the
Subscriber under applicable securities laws but for the fact that such issuance is being made pursuant to such exemptions; |
| (ii) | the Subscriber may not receive information about the Issuer that would otherwise be required to be provided
to it under applicable securities laws, |
| (iii) | the Issuer is relieved from certain obligations that would otherwise apply under applicable securities
laws, |
| (iv) | no securities commission or
similar regulatory authority has reviewed or passed on the merits of the Common Shares, |
| (v) | there is no government or other insurance covering the Common Shares, and |
| (vi) | there are risks associated with the purchase of the Common Shares, including that the Subscriber may lose
the Subscriber’s entire investment; |
| (f) | an investment in the Issuer
is highly speculative and only investors who can afford the loss of their entire investment should consider investing in the Issuer and
the Common Shares; |
| (g) | any subscription monies paid
by the Subscriber for the Common Shares is being raised as “seed” or “risk” capital for the Issuer, which
is in a speculative stage, and there is no market for the Common Shares whatsoever; |
| (h) | none of the Common Shares have been or will be registered under the United States Securities Act of
1933, as amended (the “1933 Act”), or under any securities or “blue sky” laws of any state of the United
States, and, unless so registered, may not be offered or sold in the United States or, directly or indirectly, to any U.S. Person (as
defined in Section 6.2) except in accordance with the provisions of Regulation S under the 1933 Act (“Regulation S”),
pursuant to an effective registration statement under the 1933 Act, or pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the 1933 Act, and in each case only in accordance with any other applicable state, provincial and
foreign securities laws; |
| (i) | the Issuer has not undertaken, and will have no obligation, to register any of the Common Shares under
the 1933 Act or any other securities laws; |
| (j) | the Issuer will refuse to register the transfer of any of the Common Shares to a U.S. Person not made
pursuant to an effective registration statement under the 1933 Act or pursuant to an available exemption from the registration requirements
of the 1933 Act, and in each case will only register such transfer in accordance with Applicable Laws; |
| (k) | it will hold harmless the Issuer from any loss or damage it may suffer as a result of the Subscriber’s
failure to correctly complete this Agreement or the Questionnaire; |
| (l) | it and its advisor(s) have had a reasonable opportunity to ask questions of, and receive answers
from, the Issuer in connection with the distribution of the Common Shares hereunder, and to obtain additional information, to the extent
possessed or obtainable by the Issuer without unreasonable effort or expense; |
| (m) | the books and records of the Issuer were available upon reasonable notice for inspection, subject to certain
confidentiality restrictions, by the Subscriber during reasonable business hours at the Issuer’s principal place of business, and
all documents, records and books in connection with the distribution of the Common Shares hereunder have been made available by the Issuer
for inspection by the Subscriber, its legal counsel and/or its advisor(s) if requested by the Subscriber; |
| (n) | any resale, assignment, transfer, hypothecation or pledge of any of the Common Shares by the Subscriber
will be subject to: (i) resale restrictions contained in the securities laws applicable to the Issuer, the Subscriber and any proposed
transferee; and (ii) the Issuer’s constating documents and it is the responsibility of the Subscriber to find out what those
restrictions are and to comply with such restrictions before selling any of the Common Shares; |
| (o) | it consents to the placement of a legend or legends on the Certificate and any other document evidencing
any of the Common Shares setting forth the restrictions on transferability and sale thereof contained in this Agreement, including the
following: |
“THE SECURITIES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER CONTAINED IN THE CONSTATING DOCUMENTS OR UNANIMOUS SHAREHOLDER AGREEMENT OF THE
COMPANY.
UNLESS PERMITTED UNDER SECURITIES LEGISLATION,
THE HOLDER OF THE SECURITIES REPRESENTED HEREBY MUST NOT TRADE THE SECURITIES BEFORE THE DATE THAT IS FOUR MONTHS AND A DAY AFTER THE
LATER OF (I) OCTOBER 10, 2023 AND (II) THE DATE THAT THE COMPANY BECOMES A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY IN
CANADA.”;
| (p) | it has been advised to consult its own legal, tax and other advisors with respect to the Offering and
the risks of an investment in the Common Shares and with respect to applicable resale restrictions, and it is solely responsible (and
the Issuer is not in any way responsible) for compliance with: |
| (i) | any Applicable Laws of
the jurisdiction in which the Subscriber is resident in connection with the distribution of the Common Shares hereunder, and |
| (ii) | any applicable resale restrictions; |
| (q) | there may be material tax consequences to the Subscriber of an acquisition or disposition of the Common
Shares and the Issuer gives no opinion and makes no representation to the Subscriber with respect to the tax consequences to the Subscriber
under federal, state, provincial, local or foreign tax laws that may apply to the Subscriber’s acquisition or disposition of any
of the Common Shares; |
| (r) | the Issuer is relying on one of the “Accredited Investor” exemption or the “Minimum
Amount Investment” exemption from the prospectus requirements as set out in National Instrument 45-106 – Prospectus Exemptions
(“NI 45-106”) adopted by the Canadian Securities Administrators or subsection 73.4(2) of the Securities Act
(Ontario), as applicable, which, among other restrictions, impose: (i) a transfer restriction on the Common Shares to the effect
that, for so long as the Issuer is not a reporting issuer, the Common Shares are subject to restrictions on transfer that are contained
in the Issuer’s constating documents; and (ii) a requirement to legend the Certificate representing the Common Shares to reflect
such transfer restriction; |
| (s) | there is no market for any of the Common Shares and no market for any of the Common Shares may ever exist;
and |
| (t) | this Agreement is not enforceable by the Subscriber unless it has been accepted by the Issuer and the
Issuer reserves the right to reject this Subscription for any reason. |
| 6. | Representations and Warranties of the Subscriber |
6.1 The
Subscriber hereby represents and warrants to the Issuer (which representations and warranties will survive the Closing) that:
| (a) | the Subscriber is not a U.S. Person; |
| (b) | the Subscriber is resident in the jurisdiction set out on page ii of this Agreement; |
| (c) | if the Subscriber is resident outside of Canada: |
| (i) | the Subscriber is knowledgeable
of, or has been independently advised as to, the applicable securities laws having application in the jurisdiction in which the Subscriber
is resident (the “International Jurisdiction”) which would apply to the offer and sale of the Common Shares, |
| (ii) | the Subscriber is acquiring
the Common Shares pursuant to exemptions from prospectus or equivalent requirements under applicable securities laws or, if such
is not applicable, the Subscriber is permitted to acquire the Common Shares under the
Applicable Laws of the International Jurisdiction without the need to rely on any exemptions, |
| (iii) | the Applicable Laws of
the authorities in the International Jurisdiction do not require the Issuer to make any filings or seek any approvals of any kind from
any securities regulator in the International Jurisdiction in connection with the offer, issue, sale or resale of any of the Common Shares, |
| (iv) | the acquisition of the Common
Shares by the Subscriber does not trigger: |
| (A) | any obligation to prepare and file a prospectus or similar document, or any other report with respect
to such purchase, in the International Jurisdiction, or |
| (B) | any continuous disclosure reporting obligation of the Issuer in the International Jurisdiction, and |
| (v) | the Subscriber will, if requested by the Issuer, deliver to the Issuer a certificate or opinion of local
counsel from the International Jurisdiction which will confirm the matters referred to in subparagraphs (ii), (iii) and (iv), above,
to the satisfaction of the Issuer, acting reasonably; |
| (d) | the Subscriber has the legal capacity and competence to enter into and execute this Agreement and to take
all actions required pursuant hereto and, if the Subscriber is a corporate entity, it is duly incorporated and validly subsisting under
the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been obtained
to authorize execution and performance of this Agreement on behalf of the Subscriber; |
| (e) | the entering into of this Agreement and the transactions contemplated hereby do not result in the violation
of any of the terms and provisions of any law applicable to, or, if applicable, the constating documents of, the Subscriber or of any
agreement, written or oral, to which the Subscriber may be a party or by which the Subscriber is or may be bound; |
| (f) | the Subscriber has duly executed and delivered this Agreement and it constitutes a valid and binding agreement
of the Subscriber enforceable against the Subscriber in accordance with its terms; |
| (g) | the Subscriber has received and carefully read this Agreement; |
| (h) | the Subscriber acknowledges receipt of a copy of the unanimous shareholder agreement of the Issuer and
acknowledges that it is a condition of becoming a shareholder of the Issuer that the Subscriber must become a party to such unanimous
shareholder agreement; |
| (i) | the Subscriber is aware that
an investment in the Issuer is speculative and involves certain risks, including the possible loss of the entire investment; |
| (j) | the Subscriber is not aware of any advertisement of any of the Common Shares and is not acquiring the
Common Shares as a result of any form of general solicitation or general advertising, including advertisements, articles, notices or other
communications published in any newspaper, magazine or similar media, or broadcast over radio or television, or any seminar or meeting
whose attendees have been invited by general solicitation or general advertising; |
| (k) | the Subscriber has made an independent examination and investigation of an investment in the Common Shares
and the Issuer and agrees that the Issuer will not be responsible in any way for the Subscriber’s decision to invest in the Common
Shares and the Issuer; |
| (l) | no person has made to the Subscriber any written or oral representations: |
| (i) | that any person will resell or repurchase any of the Common Shares, |
| (ii) | that any person will refund the purchase price of any of the Common Shares, or |
| (iii) | as to the future price or value of any of the Common Shares; and |
| (m) | there is no person acting or purporting to act in connection with the Offering for or on behalf of the
Subscriber who is entitled to any brokerage or finder’s fee payable by the Issuer. If any such person establishes a claim that any
fee or other compensation is payable by the Issuer in connection with this subscription for the Common Shares, the Subscriber or any beneficial
purchaser for whom the undersigned is acting covenants to indemnify and hold harmless the Issuer with respect thereto and with respect
to all costs reasonably incurred in the defence thereof. |
6.2 In
this Agreement, the term “U.S. Person” has the meaning ascribed thereto in Regulation S, and for the purpose of this
Agreement includes: (i) any person in the United States; (ii) any natural person resident in the United States; (iii) any
partnership or corporation organized or incorporated under the laws of the United States; (iv) any partnership or corporation organized
outside the United States by a U.S. Person principally for the purpose of investing in securities not registered under the 1933 Act, unless
it is organized or incorporated, and owned, by accredited investors who are not natural persons, estates or trusts; or (v) any estate
or trust of which any executor, administrator or trustee is a U.S. Person.
| 7. | Representations and Warranties will be Relied Upon |
7.1 The
Subscriber acknowledges that its representations and warranties contained herein and in the Questionnaire are made by it with the
intention that such representations and warranties will be relied upon by the Issuer in determining the Subscriber’s
eligibility to subscribe for the Common Shares under Applicable Laws, or (if applicable) the eligibility of others on whose
behalf the Subscriber is contracting hereunder to subscribe for the Common Shares under Applicable Laws. The Subscriber further
agrees that, as at the Closing, it will be representing and warranting that its representations and warranties contained herein and
in the Questionnaire are true and correct as at the Closing with the same force and effect as if they had been made by the
Subscriber on the Closing, and that they will survive the subscription by the Subscriber of the Common Shares and will continue in
full force and effect notwithstanding any subsequent disposition by the Subscriber of the Common Shares.
| 8. | REPRESENTATIONS AND WARRANTIES OF THE ISSUER |
8.1 The
Issuer hereby represents and warrants to the Subscriber (which representations and warranties will survive the Closing) that:
| (a) | each of the Issuer and the Material
Subsidiaries (as defined herein) is validly subsisting under the laws of its jurisdiction of incorporation, licensed, registered or qualified
as an extra-provincial or foreign corporation in all jurisdictions where the character of its properties owned or leased or the nature
of the activities conducted by it make such licensing, registration or qualification necessary and carries and shall carry on its business
in the ordinary course and in compliance in all material respects with all Applicable Laws of each such jurisdiction; |
| (b) | on the Closing Date, the Issuer will have taken all corporate steps and proceedings necessary to duly
approve the transactions contemplated under this Agreement, including its execution and delivery, and the execution and delivery of the
IRA Amendment and each other agreement contemplated by this Agreement; |
| (c) | on the Closing Date the Issuer will have caused ACM to have taken, all corporate steps and proceedings
necessary to duly approve the transactions contemplated under this Agreement, including the execution and delivery of the CCCPRA Amendment
and each other agreement contemplated by this Agreement to which ACM is a party; |
| (d) | the Issuer is not in breach of any securities laws; |
| (e) | at the time of closing on the Closing Date, the Common Shares will be duly and validly created, authorized
and issued; will be validly issued as fully paid as non-assessable Common Shares in the capital of the Issuer; |
| (f) | the issuance and delivery of the Common Shares by the Issuer to the Subscriber does not and will not constitute
a breach of or default under the constating documents of the Issuer or any law, regulation, order or ruling applicable to the Issuer or
any agreement, contract or indenture to which the Issuer is a party or by which it is bound; |
| (g) | for the purposes of the transactions
contemplated herein, the Issuer has provided notice to the shareholders of the Issuer under the pre-emptive rights provisions of the Shareholder
Agreement (and Issuer has provided a copy of such notice to the Subscriber) and the relevant exercise period has expired without any shareholders
exercising their pre-emptive rights; |
| (h) | the Issuer is authorized to
issue an unlimited number of Common Shares and an unlimited number of Class B common shares; and as of the date of this Agreement,
28,885,000 Common Shares are issued and outstanding and no Class B common shares are issued and outstanding; |
| (i) | as of the Closing Date, there exist no options, warrants, rights of conversion or other rights, contracts
or commitments that could require the Issuer to issue any Common Shares or other securities other than the pre-emptive rights set out
in the Shareholder Agreement and the 40,000 options that the Issuer has agreed to grant to Michael Meding upon the completion of an initial
public offering of the Issuer, pursuant to the employment agreement between the Issuer and Michael Meding dated February 7, 2022; |
| (j) | except for Michael Meding and Alex Aguado, the Issuer has no employees and other than Stephen McGibbon,
the Issuer has no independent contractors, and neither of such employees are entitled to any bonus, increase in compensation or other
benefit that is contingent on the Closing. The Issuer has provided copies of the employment agreements between the Issuer and each of
Michael Meding and Alex Aguado, and there are no other agreements, whether written or oral, between either of such employees and the Issuer; |
| (k) | the issuance and sale of the
Common Shares by the Issuer and the fulfilment of the terms hereof does not and will not conflict with or constitute a breach of or default
under (i) the constating documents of the Issuer or its Material Subsidiaries (as defined below), (ii) any Applicable
Laws, order or ruling or (ii) any agreement, contract or indenture, including any covenants or provisions respecting the Issuer’s
right to issue additional equity, or any pre-emptive right or similar rights therein, to which the Issuer or any of its Material Subsidiaries
(as defined below) is a party or by which it is bound, or to which any of the property or assets of the Issuer or any of its Material
Subsidiaries (as defined below) is subject; |
| (l) | each of this Agreement, the
IRA Amendment, the CCCPRA Amendment and each other agreement of the Issuer and its affiliates contemplated hereby, when signed
by the Issuer or such affiliates, as the case may be, constitutes a binding and enforceable obligation of the Issuer or such affiliates,
as applicable, enforceable in accordance with its respective terms; |
| (m) | Exhibit “G” accurately shows (i) each direct and indirect subsidiary of the Issuer
(collectively, “Material Subsidiaries”); (ii) the registered and beneficial holders of all of the issued and outstanding
shares in the capital of each of the Material Subsidiaries; and (iii) the numbers and classes of shares currently held by each such
holder and the percentage in the outstanding capital of each Material Subsidiary. The Issuer has no assets other than the holding of the
shares of each of the Material Subsidiaries; |
| (n) | International Copper Mining Inc. has no assets other than the holding of the shares of each of Los
Azules Mining Inc. and San Juan Copper Inc., and neither of Los Azules Mining Inc. and San Juan Copper Inc. has assets other than
shares of ACM; and none of International Copper
Mining Inc., Los Azules Mining Inc. and San Juan Copper Inc. (together, the “Cayman Subsidiaries”) operated or engaged
in, or operates or engages in, any business activities, operations or management other than business activities, operations or management
related to the Los Azules Project; |
| (o) | the Issuer has not operated or engaged in, and is not operating or engaged in, any business activities
or operations other than those related to the Los Azules Project and the Elder Creek Project; |
| (p) | except for the Shareholder Agreement
and the Nuton collaboration agreement dated August 30, 2022, as amended (the “Nuton Collaboration Agreement”)
by and among the Issuer, MUX, Robert McEwen and Nuton LLC and the copper Cathodes and Concentrates Purchase Rights Agreement dated March 9,
2023 between Nuton LLC and ACM, none of the shareholders of the Issuer (other than the Subscriber) have any agreements or side letters
with the Issuer granting such shareholders any rights in respect of the Issuer, including the right to nominate directors for appointment
to the board of directors of the Issuer or any approval rights with respect to any transactions of the Issuer or the Material Subsidiaries
(including, without limitation, granting of offtake, royalty, stream or similar rights with respect to the Los Azules Project); |
| (q) | there are no circumstances,
developments or events that would constitute or reasonably be expected to constitute a material adverse effect in respect of any of the
Issuer or the Material Subsidiaries; |
| (r) | there are no: (i) Claims
pending or, to the knowledge of the Issuer, threatened against any of the Issuer or the Material Subsidiaries before or by any governmental
authority; and (ii) outstanding judgments, orders, decrees, writs, injunctions, decisions, rulings or awards against any of the Issuer
or the Material Subsidiaries or affecting any of the Issuer, the Material Subsidiaries, the Los Azules Project or the Elder Creek Project; |
| (s) | the articles, bylaws, minute
books, share registers and other corporate records of the Issuer and the Material Subsidiaries have been maintained in accordance with
Applicable Laws and contain complete and accurate records of all matters required to be dealt with in such books and records, in
each case, in all material respects; |
| (t) | the Issuer owns all of the issued
and outstanding securities of the Material Subsidiaries, free and clear of any encumbrances and defects, and has no other subsidiaries.
All of the outstanding equity interests in the Material Subsidiaries have been duly authorized and validly issued and all of such equity
interests are outstanding as fully paid and non-assessable shares. There exist no options, warrants, purchase rights, or other contracts
or commitments that would require the Issuer or any other person to sell, transfer or otherwise dispose of any equity interests of the
Material Subsidiaries or for the issue or allotment of any unissued shares in the capital of the Material Subsidiaries or any other security
convertible into or exchangeable for any such shares. None of the Issuer or the Material Subsidiaries has any obligations (including any
obligation to provide any guarantee, security, support, indemnification, assumption or endorsement of or any similar commitment with respect
to the obligations, liabilities or indebtedness of any other person) including, without limitation, the obligations of MUX under the amended
and restated credit agreement dated May 19, 2023 between MUX and Evanachan Limited; |
| (u) | each of the Material Subsidiaries has been duly incorporated or established and is validly existing and
in good standing under the laws of its respective jurisdiction of organization with all requisite corporate power and authority to own,
use, lease and operate its properties and conduct its business in the manner currently conducted, and is duly qualified to transact business
in each jurisdiction where it carries its business; |
| (v) | the Issuer and its Material
Subsidiaries (i) are conducting their business operations in material compliance with Applicable Laws, including without limitation
those of the country, state, province, municipality or other local or foreign jurisdiction in which such entity carries on business or
conducts its activities; (ii) have received and hold all material permits, by-laws, licenses, waivers, exemptions, consents, certificates,
registrations, rights, rights of way, entitlements and other approvals which are required from any governmental or regulatory authority
or any other person necessary to the conduct of their business and activities as currently conducted, and to the conduct of their business
as proposed to be conducted pursuant to the use of funds proposal underlying the proposed placement, including but not limited to those
required under applicable mining and environmental laws (“Authorizations”); and (iii) are in material compliance
with all terms and conditions of such Authorizations, and such Authorizations are in full force and effect in all material respects; and
(iv) have not received any notice of the modification, suspension, revocation, cancellation or non-renewal of, or any intention to
modify, suspend, revoke, cancel or not renew or any proceeding relating to the modification, suspension, revocation, cancellation or non-renewal
of any such Authorizations, and no Authorizations will be subject to modification, suspension, revocation, cancellation or non-renewal
as a result of the execution and delivery of this Agreement or the Closing; |
| (w) | except to the extent qualified
by the Vargas Opinion, which the Subscriber acknowledges having received, the Issuer and each of its Material Subsidiaries (i) own,
hold or lease all such properties as are necessary to the conduct of their respective businesses as currently operated, and to the conduct
of their business as proposed to be conducted pursuant to the use of funds proposal underlying the proposed placement; and (ii) have
good and marketable title under Applicable Laws to all real property and good and marketable title to all personal property owned
by them that constitute the Los Azules Project and the Elder Creek Project and to all material personal property owned by them in the
conduct of their business on the Los Azules Project and the Elder Creek Project, in each case free and clear of all liens, encumbrances
and defects; and any real property and buildings to be held under lease or sublease by the Issuer and the Material Subsidiaries are held
by them under valid, subsisting and enforceable leases; (A) the “Los Azules Project” means the Los Azules project
owned by ACM and located in the San Juan Province, Argentina, which involves exploration, development and other operations on the mineral
properties, claims and any other mineral rights listed in, and depicted by the map in, Exhibit “H” hereto, and which
includes the project described in the technical report entitled “SEC S-K 229.1304 Initial Assessment Individual Disclosure for the
Los Azules Project, Argentina” with an effective reporting date of September 1, 2017 prepared by Mining Plus; and (B) the
“Elder Creek Project” means the project commonly known as the
Elder Creek project, which is owned by NPGUS LLC and located near Elder Creek, Nevada, USA, which involves exploration, development and
other operations on the mineral properties, claims and any other mineral rights comprising such project; |
| (x) | except to the extent qualified by the opinion of Vargas Opinion, all interests in material mining claims,
concessions, exploration, reconnaissance, exploitation or extraction rights, surface rights, subsurface rights or similar rights, (“Mining
Claims”) that are held by the Issuer or any of the Material Subsidiaries, held by way of Authorizations or otherwise, are in
good standing, are valid and enforceable, are free and clear of any encumbrances and no royalty is payable in respect of any of them,
except as disclosed in the Vargas Opinion; |
| (y) | no other material property rights are necessary for the conduct of the business as currently conducted,
or for the conduct of the business as proposed to be conducted pursuant to the use of funds proposal underlying the proposed placement,
in each case by the Issuer and the Material Subsidiaries; |
| (z) | except as provided in the Vargas Opinion, there are no material restrictions on the ability of the Issuer
and the Material Subsidiaries to use, transfer or otherwise exploit any such property rights; |
| (aa) | except as set out in the Vargas Opinion, there are no Claims to which the Issuer or any of its Material
Subsidiaries is a party or of which any property, including Authorizations and Mining Claims, of the Issuer or any of its Material Subsidiaries
is the subject; and, no such proceedings are threatened or pending by governmental authorities or any other person; there is no agreement,
judgment, injunction, order or decree binding upon the Issuer or its Material Subsidiaries that has or would reasonably be expected to
have the effect of prohibiting, restricting or materially impairing any business practice of the Issuer or its Material Subsidiaries; |
| (bb) | no dispute between the Issuer or the Material Subsidiaries and any local, native or indigenous group exists
or to the knowledge of the Issuer is threatened or reasonably likely with respect to the Los Azules Project and the Elder Creek Project
or the business activities of the Issuer and the Material Subsidiaries; |
| (cc) | the Issuer’s draft unaudited financial statements for the periods ending December 31, 2021
and December 31, 2022, copies of which the Issuer has provided to the Subscriber, have been prepared in accordance with International
Financial Reporting Standards (“IFRS”) and present fairly the consolidated financial position and results of operation
and changes in the financial position of the Issuer and its Material Subsidiaries and such accounts fairly present in all material respects
the financial condition, financial performance and cash flows of the Issuer for the periods ended December 31, 2021 and December 31,
2022; neither the Issuer nor the Material Subsidiaries have any material liabilities, obligations, indebtedness or commitments, whether
accrued, absolute, contingent or otherwise required to be disclosed under IFRS, which are not disclosed in the Issuer’s financial
statements, and the Issuer and the Material Subsidiaries have conducted their respective businesses in the ordinary course since December 31,
2022 until the Closing Date; |
| (dd) | the audited consolidated financial statements for ACM for the period ending December 31,
2022, a copy of which has been provided to the Subscriber, are prepared in accordance with Argentine GAAP and present fairly
the consolidated financial position and results of operation and changes in the financial position of ACM and its subsidiaries and such
accounts fairly present in all material respects the financial condition, financial performance and cash flows of ACM for the periods
indicated; as at the Closing Date, neither ACM nor its subsidiaries have any material liabilities, obligations, indebtedness or commitments,
whether accrued, absolute, contingent or otherwise required to be disclosed under Argentine GAAP, which are not disclosed in ACM’s
financial statements and each of ACM and its subsidiaries have conducted their respective businesses in the ordinary course since December 31,
2022 until the Closing Date; |
| (ee) | the Issuer and the Material
Subsidiaries have filed all Tax Returns required to be filed under Applicable Laws when due and all such Tax Returns were correct
and complete in all respects; |
| (ff) | any deductions taken or claimed in computing the income of any of the Issuer or the Material Subsidiaries
for Tax purposes have been taken or claimed in accordance with Applicable Law; |
| (gg) | there are no Encumbrances on any of the assets of the Issuer or of the Material Subsidiaries that arose
in connection with any failure (or any alleged failure) to pay any Tax when due; |
| (hh) | all Taxes required to
be paid under Applicable Laws have been paid by each of the Issuer and the Material Subsidiaries or an adequate reserve under IFRS has
been recorded in respect thereof in the accounting records of the Issuer or the Material Subsidiaries, and each of the Issuer and the
Material Subsidiaries has made adequate and timely installments of all Taxes required to be made by it under Applicable Laws. Neither
the Issuer nor any of the Material Subsidiaries has incurred any liability, whether actual or contingent, for Taxes or engaged in any
transaction or event that would result in any liability, whether actual or contingent, for Taxes or realized any income or gain for Tax
purposes otherwise than in the usual and ordinary course of its business; |
| (ii) | there are no notices of assessment or reassessment of, or notices of audits, investigations or Claims
with respect to, unpaid liabilities for Taxes issued by any Tax Authority which have been received by any of the Issuer or the Material
Subsidiaries. There are no assessments, proceedings, investigations, audits or Claims now pending or, to the knowledge of the Issuer,
threatened against any of the Issuer or the Material Subsidiaries in respect of any Taxes and there are no matters under discussion, investigation,
audit or appeal with any Tax Authority in respect of any of the Issuer or the Material Subsidiaries. The Issuer is not aware of any contingent
liability of any of the Issuer or the Material Subsidiaries for Taxes or any grounds that could prompt an assessment or reassessment for
Taxes; |
| (jj) | each of the Issuer and
the Material Subsidiaries has deducted, withheld, collected and remitted within the time limits required by Applicable Laws all amounts
required by Applicable Laws to have been deducted, withheld, collected and remitted in connection with amounts paid or owing to any employee,
independent contractor, creditor, shareholder or other third party; |
| (kk) | none of the Issuer or
the Material Subsidiaries are party to any agreement, waiver or arrangement with any Tax Authority that relates to any extension of time
with respect to the filing of any Tax Return, any payment of Taxes or any assessment; |
| (ll) | no facts, circumstances or events
exist or have existed that have resulted in, or may result in, the application of any of sections 15, 17, 67, 78 to 80.04 of the Tax Act
(or any similar provision of an Applicable Law of any province or territory of Canada) to any of the Issuer or the Material Subsidiaries; |
| (mm) | none of the Issuer or
the Material Subsidiaries are subject to liability for Taxes of any other person. None of the Issuer or the Material Subsidiaries have
acquired property from any person in circumstances where any such company could become liable for Taxes of such person. None of the Issuer
or the Material Subsidiaries have entered into any agreement with, or provided any undertaking to, any person pursuant to which it has
assumed liability for the payment of income Taxes owing by such person; |
| (nn) | none of the Issuer or
the Material Subsidiaries has ever been required to file any Tax Return with, and has never been liable to pay any Taxes to, any Tax Authority
in any jurisdiction in which it is not currently filing any Tax Returns. No Claim has ever been made by a Tax Authority in a jurisdiction
where any of the Issuer or the Material Subsidiaries does not file Tax Returns that the Issuer or the Material Subsidiaries is or may
be subject to the imposition of any Tax by that jurisdiction; |
| (oo) | any of the Issuer or
the Material Subsidiaries that are required to be registered (i) with the Canada Revenue Agency under Subdivision d of Division V
of Part IX of the Excise Tax Act (Canada) for the purposes of goods and services sales tax and the harmonized sales tax (“GST/HST”),
or (ii) under any Applicable Law of a province in respect of sales tax are so registered, and any such registration numbers have
been provided to the Subscriber. Any input tax credits, rebates and similar refunds claimed by the Issuer or the Material Subsidiaries
for GST/HST or provincial sales tax purposes were calculated in accordance with Applicable Laws; |
| (pp) | the Issuer and the Material Subsidiaries have complied with all information reporting and record keeping
requirements under Applicable Laws, including retention and maintenance of required records with respect thereto; |
| (qq) | neither the Issuer nor any of the Material Subsidiaries have owned any (i) real or immovable property
situated in Canada (as defined in the Tax Act), (ii) Canadian resource properties (as defined in the Tax Act), (iii) timber
resource properties (as defined in the Tax Act), or (iv) options in respect or, or interests in, or for civil law, a right in, property
described in any of (i) to (iii), whether or not the property exists; |
| (rr) | none of the Issuer or
the Material Subsidiaries have engaged in any “reportable transaction” as defined in subsection 237.3(1) of the Tax Act
or any “notifiable transaction” as defined in proposed subsection 237.4(1) of the Tax Act (as such provisions are proposed
to be amended or introduced), as applicable, by the legislative proposals released by the Minister of Finance (Canada) on August 9,
2022; |
| (ss) | all transactions entered into
by the Issuer and the Material Subsidiaries have been entered into on an arm’s length basis and the consideration (if any)
charged, received or paid by the Issuer or the Material Subsidiaries, as the case may be, on all transactions entered into by it has been
equal to the consideration which might have been expected to be charged, received or paid, as applicable, been independent persons dealing
at arm’s length and no notice or inquiry by any Tax Authority has been made in connection with any such transactions. The Issuer
and the Material Subsidiaries have complied in all material respects with relevant transfer pricing laws (including section 247 of the
Tax Act), including preparing contemporaneous documentation and other documents contemplated thereby; |
| (tt) | none of the Issuer or
the Material Subsidiaries have applied for, filed for, or otherwise claimed any COVID-19 Relief; |
| (uu) | none of the Issuer or
the Material Subsidiaries will be required to include any item of income in, or exclude any item or deduction from, taxable income for
any taxation year or portion thereof ending after the Closing Date as a result of the use of an improper method of accounting for a taxation
year ending before the Closing Date; |
| (vv) | neither the Issuer nor any of
its Material Subsidiaries are insolvent or in liquidation or administration or subject to any other insolvency procedure and no receiver,
manager, trustee, custodian or analogous officer has been appointed in respect of all or any part of its property, undertaking or assets;
neither steps have been taken nor legal, legislative or administrative proceedings have been started or threatened to wind up, dissolve,
make dormant, or eliminate the Issuer or any of its Material Subsidiaries; and the Issuer does not have any knowledge of any event
or circumstance that could reasonably be expected to lead to or result in the winding up, liquidation, dissolution, elimination or insolvency
of the Issuer or any Material Subsidiary; and |
| (ww) | neither the Issuer nor its
subsidiaries and, to the Issuer’s knowledge, none of their respective directors, officers, supervisors, managers, employees,
or agents has: (A) violated any Applicable Laws relating to anti-bribery and anti-corruption, including the Corruption
of Foreign Public Officials Act (Canada), the Criminal Code (Canada), Foreign Corrupt Practices Act of 1977
(United States) or any other applicable anti-corruption laws of any relevant jurisdiction (“Anti-Corruption
Laws”) or Applicable Laws relating to export control, or economic and financial sanctions laws (“Sanctions
Laws”), (B) made, given, authorized, made, or offered anything of value, including any payment, facilitation
payment, loan, reward, gift, contribution, expenditure or other advantage, directly or indirectly, (i) to any person in
violation of the Anti-Corruption Laws, or (ii) to or for the benefit of a government official in order to improperly influence
any act or decision of a government official, induce a government official to do or omit to do any act in violation of their lawful duty
or secure any improper advantage, or (C) used any corporate funds, or made any direct or indirect unlawful payment from corporate
funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; |
| (xx) | the operations of the Issuer and its subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the money laundering statutes of all applicable jurisdictions,
the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced
by any governmental authority (“Money Laundering Laws”) and no action, suit or proceeding by or before any court of
governmental authority or any arbitrator nongovernmental authority involving the Issuer or its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Issuer, threatened; |
| (yy) | neither the Issuer nor its subsidiaries nor any of their respective directors, officers, supervisors,
managers, employees, or agents is (i) a person currently identified, listed or designated under the Sanctions Laws, (ii) a person
located, organized, resident, doing business or operating in a country or territory that is, or whose government is, the subject of Sanctions
Laws which prohibit a person resident in, or a national of, Canada, the United States, the United Kingdom, or the European Union from
doing business with or in that jurisdiction, or (iii) a person directly or indirectly owned or controlled by, or acting for the benefit
or on behalf of, a person described in clause (i) or (ii) (a “Sanctioned Person”). Neither the Issuer nor
any of its subsidiaries (i) has assets or operations located in a jurisdiction in violation of Sanctions Laws, or (ii) directly
or indirectly derives revenues from or engages in investments, dealings, activities or transactions with any Sanctioned Person or which
otherwise violate Sanctions Laws; |
| (zz) | the data or information with
respect to the business and activities of the Issuer and Material Subsidiaries disclosed on the EDGAR system by MUX is complete
and correct in all material respects and does not contain any untrue statement of material fact or omit to state a material fact necessary
in order to make the statement contained therein not misleading in the circumstances. |
| (aaa) | the data or information made
available to Subscriber by or on behalf of the Issuer: (i) does not, when taken as a whole, create a false impression of the development
and operations of the Los Azules Project and the Elder Creek Project as at the date of this Agreement, (ii) was, to the knowledge
of the Issuer at the time when such data or information was created by or for the Issuer, accurate in all material respects,
and (iii) was prepared in good faith for the purposes of informing the Subscriber about the business and activities of the Issuer
and Material Subsidiaries and in doing so, the Issuer has not: |
| (i) | omitted anything that the Issuer, acting reasonably, considers is material from such data or information;
or |
| (ii) | included anything that the Issuer, acting reasonably, considers is materially misleading in such data
or information. |
9.1 The
Issuer shall indemnify and hold harmless the Subscriber and its officers, directors, employees and other representatives (the “Subscriber
Indemnified Parties”) from and against any and all Claims asserted against any of them, or any Losses incurred or suffered by
any of them, or any Losses of the Issuer which result in a decrease in the value of the Common Shares held by the Subscriber, and directly
or indirectly arising from or in connection with:
| (a) | any breach or inaccuracy of any representation or warranty made by the Issuer in this Agreement; and |
| (b) | any failure of the Issuer to perform or observe any covenant or agreement to be performed or observed
by it under this Agreement. |
If the Issuer indemnifies the Subscriber Indemnified
Parties pursuant to this Agreement in respect of any matter the Issuer shall not subsequently be liable to indemnify the other Subscriber
Indemnified Parties for the same matter, to the extent that doing so would result in a duplicate recovery.
10.1 The
Subscriber hereby waives, to the fullest extent permitted by law, any rights of withdrawal, rescission or compensation for damages to
which the Subscriber may be entitled in connection with the distribution of any of the Common Shares.
| 11. | Escrow OR LOCK-UP of COMMON Shares |
11.1 The
Subscriber acknowledges that the Issuer is not currently a reporting issuer in any jurisdiction. If the Issuer completes an initial public
offering that results in the Common Shares or other securities in the capital of the Issuer becoming listed on a stock exchange in Canada
or the United States of America, or the Issuer completes a reverse takeover, statutory merger or amalgamation, arrangement, share exchange,
business combination or other similar transaction which results in a class of shares of the issuer resulting from such transaction being
listed (the “Resulting Issuer”) on a stock exchange in Canada or the United States of America and the shareholders
of the Issuer receiving such listed securities of the Resulting Issuer and/or cash in exchange for their Common Shares (in each case,
a “Liquidity Event”), the Common Shares may be required to be escrowed or locked-up, either at the request of the Issuer’s
selling agent or underwriter for a period not to exceed 180 days in connection with the Liquidity Event, or otherwise pursuant to the
rules of any stock exchange, securities commission or other securities regulatory authority having jurisdiction, and the Subscriber
agrees to sign any such escrow or lock-up agreement and abide by any such restrictions as may be so imposed, provided such restrictions
are the same as those imposed on the other shareholders of the Resulting Issuer who hold more than 2% of the shares of the Resulting Issuer.
11.2 In
furtherance of the covenant in Section 11.1, the Subscriber hereby irrevocably appoints the Chief Executive Officer or the President
of the Issuer, as exists at the applicable time (in any case, the “President”), as the Subscriber’s attorney-in-fact,
and authorizes the President as the Subscriber’s attorney-in-fact, with full power and authority in the Subscriber’s place
and stead, to approve and sign any pooling or escrow agreement, or any other document, on behalf of the Subscriber as the Issuer advises
may be required to provide for pooling or escrow of the Common Shares, or the approval and completion of any Liquidity Event, as the case
may be, in the event of a Liquidity Event or other transaction pursuant to which the Issuer may become listed, directly or indirectly,
on any stock exchange. This power of attorney is irrevocable, is coupled with an interest and has been given for valuable consideration,
the receipt and adequacy of which are acknowledged by the Subscriber. This power of attorney and other rights and privileges granted hereunder
will survive any legal or mental incapacity, dissolution, bankruptcy or death of the Subscriber. This power of attorney extends to the
heirs, executors, administrators, other legal representatives and successors, transferees and assigns of the Subscriber. Any person dealing
with the Issuer may conclusively presume and rely upon the fact that any document, instrument or agreement executed by the President pursuant
to this power of attorney is authorized and binding on the Subscriber, without further inquiry. The Subscriber (on its own behalf and,
if applicable, on behalf of each beneficial purchaser on whose behalf it is contracting) agrees to be bound by any representations or
actions made or taken by the President pursuant to this power of attorney, and waives any and all defences that may be available to contest,
negate or disaffirm any action of the President taken in good faith under this power of attorney.
| 12. | Collection of Personal Information |
12.1 The
Subscriber acknowledges and consents to the fact that the Issuer is collecting the Subscriber’s personal information for the purpose
of fulfilling this Agreement and completing the Offering. The Subscriber acknowledges that its personal information (and, if applicable,
the personal information of any person on whose behalf the Subscriber is contracting hereunder) may be included in record books in connection
with the Offering and may be disclosed by the Issuer to: (i) stock exchanges or securities regulatory authorities; (ii) the
Issuer’s registrar and transfer agent; (iii) Canadian Tax Authorities; (iv) authorities pursuant, among other legislation,
to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada); and (v) any other parties involved in the
Offering, including the Issuer’s counsel. By executing this Agreement, the Subscriber is deemed to be consenting to the foregoing
collection, use and disclosure of the Subscriber’s personal information (and, if applicable, the personal information of any other
person on whose behalf the Subscriber is contracting hereunder) for the foregoing purposes and to the retention of such personal information
for as long as permitted or required by Applicable Laws. Notwithstanding that the Subscriber may be purchasing the Common Shares as agent
on behalf of an undisclosed principal, the Subscriber agrees to provide, on request, particulars as to the nature and identity of such
undisclosed principal, and any interest that such undisclosed principal has in the Issuer, all as may be required by the Issuer in order
to comply with the foregoing. Furthermore, the Subscriber is hereby notified that:
| (a) | the Issuer may deliver to any securities commission having jurisdiction over the Issuer, the Subscriber
or this Subscription, including any Canadian provincial securities commissions, the United States Securities and Exchange Commission and/or
any state securities commissions (collectively, the “Commissions”), certain personal information pertaining to the
Subscriber, including the Subscriber’s full name, residential address and telephone number, the number of securities of the Issuer
owned by the Subscriber, the number of Common Shares purchased by the Subscriber, the total Subscription Amount paid, the prospectus exemption
relied on by the Issuer and the date of distribution of the Common Shares; |
| (b) | such information is being collected indirectly by the Commissions under the authority granted to them
in applicable securities laws; |
| (c) | such information is being collected
for the purposes of the administration and enforcement of applicable securities laws; and |
| (d) | in Ontario, the Administrative Support Clerk, Suite 1903, Box 55, 20 Queen Street West, Toronto ON,
M5H 3S8, Telephone: (416) 593-3684 is the public official who can answer questions about the collection of personal information. |
13.1 The
Subscriber acknowledges and agrees that all costs and expenses incurred by the Subscriber (including any fees and disbursements of any
legal counsel or tax or financial advisors retained by the Subscriber) relating to the subscription of the Common Shares will be paid
by the Subscriber.
| 14. | Delivery of Subscription Agreement |
14.1 The
Issuer and the Issuer’s counsel will be entitled to rely on delivery by DocuSign or other means of electronic communication of an
executed copy of this Agreement, and acceptance by the Issuer of such copy will be equally effective to create a valid and binding agreement
between the Subscriber and the Issuer in accordance with the terms hereof. If less than a complete copy of this Agreement is delivered
to the Issuer or the Issuer’s counsel prior to or at Closing, the Issuer and the Issuer’s counsel are entitled to assume that
the Subscriber accepts and agrees to all of the terms and conditions of the pages not delivered prior to or at Closing as written
herein, unaltered.
15.1 This
Agreement and all matters related hereto or arising herefrom are governed by the laws of the Province of Ontario and the federal laws
of Canada applicable therein. Each of the Issuer and the Subscriber irrevocably attorns to the exclusive jurisdiction of the courts of
the Province of Ontario in all matters related to, or arising from, this Agreement.
16.1 This
Agreement, including the representations, warranties and covenants contained herein, will survive and continue in full force and effect
and be binding upon the Issuer and the Subscriber, notwithstanding the completion of the subscription of the Common Shares by the Subscriber.
17.1 This
Agreement is not transferable or assignable.
18.1 The
invalidity or unenforceability of any particular provision of this Agreement will not affect or limit the validity or enforceability of
the remaining provisions of this Agreement.
19.1 This
Agreement and the other Transaction Documents constitute the entire agreement between the parties and supersede all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the parties and their respective affiliates, as applicable,
related to such matters, including the Letters of Intent. The parties have not relied and are not relying on any other information, discussion
or understanding in entering into this Agreement.
20.1 All
notices and other communications hereunder will be in writing and will be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication, including DocuSign, electronic mail or other means of electronic communication capable of producing
a printed copy. Notices to the Subscriber will be directed to the address of the Subscriber set forth on page ii of this Agreement
and notices to the Issuer will be directed to the address of the Issuer set forth on the first page of this Agreement.
| 21. | Counterparts and Electronic Means |
21.1 This
Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, will constitute an original and
all of which together will constitute one instrument. Delivery of an executed copy of this Agreement by DocuSign or other means of electronic
communication capable of producing a printed copy will be deemed to be execution and delivery of this Agreement as of the Closing Date.
| 22. | Schedules, Exhibits and Appendices |
22.1 The
schedules, exhibits and appendices attached hereto form part of this Agreement.
23.1 The
Subscriber will indemnify and hold harmless the Issuer and, where applicable, its directors, officers, employees, agents, advisors and
shareholders, from and against any and all Claims asserted against any of them, or any Losses incurred or suffered by any of them,
and directly or indirectly arising from or in connection with any representation or warranty of the Subscriber contained in this Agreement,
the Questionnaire, or in any document furnished by the Subscriber to the Issuer in connection herewith being untrue in any material respect
of any breach or failure by the Subscriber to comply with any covenant or agreement made by the Subscriber to the Issuer in connection
therewith.
Neither party shall not issue any press release
or make any other public statement or disclosure with respect to this Agreement without the consent of the other party (which consent
shall not be unreasonably withheld, conditioned or delayed); provided, however, that the foregoing shall be subject to each party’s
overriding obligation to make any disclosure or filing in accordance with Applicable Laws, including applicable securities laws, and if,
in its reasonable opinion, such disclosure or filing is required and the other party has not reviewed or commented on the disclosure or
filing, the party proposing to make such disclosure shall use its reasonable best efforts to give the other party prior oral or written
notice and a reasonable opportunity to review or comment on the disclosure or filing (other than with respect to confidential information
contained in such disclosure or filing). The party making such disclosure shall give reasonable consideration to any comments made by
the other party or its counsel, and if such prior notice is not possible, shall give such notice immediately following the making of such
disclosure or filing.
SCHEDULE
“A”
DEFINITIONS
The terms defined in this
Schedule “A” shall, for all purposes of this Agreement, have the following meanings:
“Applicable
Laws” means all applicable domestic or foreign national, federal, provincial, territorial, state, regional and local laws (whether
statutory or common law or equity), rules, ordinances (including zoning and mineral removal ordinances), regulations, grants, concessions,
franchises, licences, orders, directives, judgments, decrees, and other governmental restrictions, including permits and other similar
requirements, whether legislative, municipal, administrative or judicial in nature and in any case, issued, enacted, promulgated, enforced
or entered by any Governmental Authority (including environmental laws, mining laws and any applicable securities laws and any
applicable rules of any stock exchange imposing disclosure requirements);
“Business Day” means any day
that is not a weekend or a holiday in Toronto, Ontario or Buenos Aires, Argentina;
“Claim” means any material
actual or threatened civil, criminal, administrative, regulatory, arbitral or investigative inquiry, action, suit or proceeding and any
notice, demand or claim resulting therefrom or any other claim or demand of whatever nature or kind;
“Copper Cathodes and Concentrates Purchase
Rights Agreement” means the copper cathodes and concentrates purchase rights agreement made pursuant to an offer delivered by
ACM on February 23, 2023 and accepted by the Subscriber on February 24, 2024;
“COVID-19 Relief” means any
support payments, loans, benefits, wage or other subsidies or other incentives provided, in each case, as a result of the COVID-19 pandemic
from any Governmental Authority or financial institution;
“Encumbrance” means any encumbrance,
mortgage, lien, charge, pledge or security interest, whether fixed or floating, or any assignment, lease, option, right of pre-emption,
privilege, usufruct, easement, encroachment, hypothec, pledge, title retention agreement, reservation of title, servitude, right of way,
restrictive covenant, restriction on transfer, right of occupation or other adverse claim or restriction on use, in any case, regardless
of form, whether or not registered or registrable and whether or not consensual or arising by Applicable Laws, including any or any matter
capable of registration, or any other right or claim of any kind or nature whatever which affects ownership or possession of, or title
to, any interest in, or the right to use or occupy, property or assets;
“Exchange
Rate” means the conversion of Argentine Pesos into US dollars denominated as MEP Dollars, calculated using volume weighted
average of S31O3 and SO3D bonds within the period of five (5) trading days preceding
the Closing Date, based on quotes obtained from the Bolsar page (https://bolsar.info). In the event of new restrictions
rendering the foregoing calculation unavailable at the Closing Date, the parallel MEP rate to be used will be that provided by Banco
Santander in Argentina and/or its local brokerage firm Santander Valores as a result of private transactions (commonly known as OTC or
Senebi locally) or, if not available at Banco Santander, by another bank or broker agreed by the Parties in writing calculated on a five
(5) day average as described above;
“Governmental Authority” means
any (i) domestic or foreign government, whether national, federal, provincial, territorial, regional, county, state, municipal
or local or other governmental or public department, (ii) any central bank, court, individual arbitrator or arbitration panel, commission,
board, bureau, agency or instrumentality, domestic or foreign, (iii) subdivision or authority of any of the foregoing, (iv) securities
regulatory authority or stock exchange, and (v) quasi-governmental, self-regulatory organization or private body exercising any regulatory,
expropriation or taxing authority under or for the account of any of the foregoing; in each case, having jurisdiction in the relevant
circumstances;
“Letter of Intent” means the
non-binding letter of intent made by the Subscriber on September 12, 2023, and accepted by the Issuer on September 19, 2023;
“Investor Rights Agreement”
means the investor rights agreement dated February 24, 2023 among the Subscriber, the Issuer, MUX, MAI and Robert McEwen, as amended
by Amendment No. 1 dated March 10, 2023;
“Liabilities”
means, with respect any person, any and all indebtedness, liabilities, commitments and obligations of any kind of such person, whether
fixed, contingent or absolute, matured or unmatured, liquidated or unliquidated, accrued or not accrued, asserted or not asserted, known
or unknown, determined, determinable or otherwise, whenever or however arising (including whether arising out of any contract, tort based
on negligence or strict liability or Applicable Laws);
“Losses”
means, with respect to any person, any and all losses, Liabilities, Claims, obligations, judgments, fines, settlement payments, awards
or damages of any kind actually suffered or incurred by such person (together with all reasonably incurred cash disbursements, costs and
expenses, costs of investigation, defence and appeal and reasonable legal fees and expenses), whether or not involving any Third Party
Claim;
“person”
means a natural person, partnership, limited partnership, limited liability partnership, corporation, limited liability company, joint
stock company, trust, unincorporated association, joint venture, juridical person or Governmental Authority, and related personal pronouns
have a similarly extended meaning, as the context requires;
“Tax Act” means the Income
Tax Act (Canada) as amended from time to time, including the regulations promulgated thereunder;
“Tax Authority” means any Governmental
Authority having jurisdiction over the assessment, determination, collection, administration or imposition of any Taxes;
“Tax Returns” means all returns,
elections, claims for refunds, designations, reports, declarations, statements, bills, schedules, estimates, information returns, forms,
or other written information (whether in tangible electronic or other form) made, prepared or filed or required to be made, prepared or
filed in respect of Taxes under Applicable Laws, including any schedule or attachment thereto, and including any amendment thereof;
“Taxes” means all federal,
national, state, provincial, territorial, county, municipal, or local taxes, whether domestic or foreign, and all duties, imposts, levies,
assessments, tariffs and other charges imposed, assessed or collected by a Tax Authority, including (i) any income, gross income,
net income, gross receipts, net worth, business, royalty, capital, capital gains, goods and services, harmonized sales, value added, severance,
stamp, franchise, occupation, premium, capital stock, sales and use, real property, land transfer, personal property, ad valorem, transfer,
licence, profits, windfall profits, payroll, environmental, employment, employer health, pension plan, anti-dumping, countervail, excise,
severance, stamp, occupation or premium tax, (ii) all withholdings on amounts paid to or by the relevant person, (iii) all employment
insurance premiums, pension plan contributions or premiums, (iv) any fine, penalty, interest, surcharge or addition to tax, (v) any
tax imposed, assessed, or collected or payable pursuant to any tax-sharing agreement or any other contract relating to the sharing or
payment of any such tax, levy, assessment, tariff, duty, deficiency or fee, (vi) claw-backs, repayments, obligations or other liabilities
under or in respect of any COVID-19 Relief and (vii) any tax of a type referred to in this paragraph that is payable by a person
as a result of being a member of an affiliated, consolidated, combined or unitary group, or as a result of succeeding to such liability
as a result of merger, conversion or asset transfer or as a result of any obligation under any tax sharing arrangement or indemnity agreement;
“Third Party” means any person
other than a party hereto or an affiliate of a party hereto;
“Third Party Claim” means any
Claim for which the Issuer may have liability to any Subscriber Indemnified Party hereunder is asserted against or sought to be collected
from any Subscriber Indemnified Party by a Third Party; and
“Transaction
Document” means this Agreement, the IRA Amendment, the CCCPRA Amendment and all of the agreements and documents referred to
herein or therein, as the case may be, including all agreements or documents to be delivered at Closing under or pursuant to this Agreement.
Exhibit "A"
Canadian INVESTOR QUESTIONNAIRE
Capitalized terms used in this Canadian Investor
Questionnaire (this “Questionnaire”) and not specifically defined have the meaning ascribed to them in the Private
Placement Subscription Agreement (the “Agreement”) between the undersigned (the “Subscriber”) and
McEwen Copper Inc. (the “Issuer”) to which this Exhibit “A” is attached.
In
connection with the subscription by the Subscriber of the Common Shares, the Subscriber hereby represents, warrants and certifies
to the Issuer that the Subscriber:
| (i) | is acquiring the Common
Shares as principal (or deemed principal under the terms of National Instrument 45-106 – Prospectus Exemptions adopted by
the Canadian Securities Administrators (“NI 45-106”)); |
| (ii) | is resident in the jurisdiction
set out as at the “Subscriber’s Address” set out on page ii of the Agreement; and |
| (iii) | has not been provided with any
offering memorandum in connection with the acquisition of the Common Shares. |
In
connection with the acquisition of the Common Shares, the Subscriber hereby represents, warrants and certifies to, and covenants
and agrees with, the Issuer that the Subscriber meets one or more of the following criteria:
I. SUBSCRIBERS ACQUIRING SHARES UNDER THE “ACCREDITED INVESTOR” EXEMPTION |
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the Subscriber is an “accredited investor” within the meaning of NI 45-106, by virtue of satisfying the indicated criterion below (YOU MUST PLACE A CHECK-MARK ON THE APPROPRIATE LINE(S)) (see certain guidance with respect to accredited investors that starts on page 19 below) |
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(a) |
except in Ontario, a person registered under the securities legislation of a jurisdiction of Canada as an adviser or dealer, |
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(b) |
an individual registered under the securities legislation of a jurisdiction of Canada as a representative of a person referred to in paragraph (a), |
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(c) |
an individual formerly registered under the securities legislation of a jurisdiction of Canada, other than an individual formerly registered solely as a representative of a limited market dealer under one or both of the Securities Act (Ontario) or the Securities Act (Newfoundland and Labrador), |
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(d) |
an individual who, either alone or with a spouse, beneficially owns financial assets having an aggregate realizable value that, before taxes but net of any related liabilities, exceeds $1,000,000 (YOU MUST ALSO COMPLETE AND SIGN APPENDIX “A” TO EXHIBIT A OF THIS QUESTIONNAIRE THAT STARTS ON PAGE A-9), |
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(e) |
an individual who beneficially owns financial assets having an aggregate realizable value that, before taxes but net of any related liabilities, exceeds $5,000,000, |
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(f) |
an individual whose net income before taxes exceeded $200,000 in each of the 2 most recent calendar years or whose net income before taxes combined with that of a spouse exceeded $300,000 in each of the 2 most recent calendar years and who, in either case, reasonably expects to exceed that net income level in the current calendar year (YOU MUST ALSO COMPLETE AND SIGN APPENDIX “A” TO EXHIBIT A OF THIS QUESTIONNAIRE THAT STARTS ON PAGE A-9), |
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an individual who, either alone or with a spouse, has net assets of at least $5,000,000 (YOU MUST ALSO COMPLETE AND SIGN APPENDIX “A” TO EXHIBIT OF THIS QUESTIONNAIRE THAT STARTS ON PAGE A -9), |
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(h) |
a person, other than an individual or investment fund, that has net assets of at least $5,000,000 as shown on its most recently prepared financial statements and that has not been created or used solely to purchase or hold securities as an accredited investor as defined in this paragraph (h), |
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(i) |
an investment fund that distributes or has distributed
its securities only to:
(i) a
person that is or was an accredited investor at the time of the distribution,
(ii) a
person that acquires or acquired securities in the circumstances referred to in Sections 2.10 [Minimum amount investment] or 2.19
[Additional investment in investment funds] of NI 45-106, or
(iii) a
person described in paragraph (i) or (ii) that acquires or acquired securities under Section 2.18 [Investment fund reinvestment]
of NI 45-106, |
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(j) |
an investment fund that distributes or has distributed securities under a prospectus in a jurisdiction of Canada for which the regulator or, in Québec, the securities regulatory authority, has issued a receipt, |
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(k) |
a trust company or trust corporation registered or authorized to carry on business under the Trust and Loan Companies Act (Canada) or under comparable legislation in a jurisdiction of Canada or a foreign jurisdiction, acting on behalf of a fully managed account managed by the trust company or trust corporation, as the case may be, |
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(l) |
a person acting on behalf of a fully managed account managed by that person, if that person is registered or authorized to carry on business as an adviser or the equivalent under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction, |
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(m) |
a registered charity under the Income Tax Act (Canada) that, in regard to the trade, has obtained advice from an eligibility adviser or an adviser registered under the securities legislation of the jurisdiction of the registered charity to give advice on the securities being traded, |
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(n) |
an entity organized in a foreign jurisdiction that is analogous to an entity referred to in paragraph (a) in form and function, or |
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(o) |
a person in respect of which all of the owners of interests, direct, indirect or beneficial, except the voting securities required by law to be owned by directors, are persons that are accredited investors; |
II. |
SUBSCRIBERS ACQUIRING SHARES UNDER THE MINIMUM AMOUNT INVESTMENT
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(a) |
the Subscriber is not an individual as that term is defined in applicable Canadian securities laws, |
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(b) |
the Subscriber is acquiring the Common Shares as principal for its own account and not for the benefit of any other person, |
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(c) |
the Common Shares have an acquisition cost to the Subscriber of not less than $150,000, payable in cash at the Closing, and |
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(d) |
the Subscriber was not created and is not being used solely to purchase or hold securities in reliance on the prospectus exemption provided under Section 2.10 of NI 45-106, it pre-existed the Offering and has a bona fide purpose other than investment in the Common Shares. |
DEFINITIONS
For the purposes of this Questionnaire and Appendix
“A” attached to this Questionnaire:
(a) “control
person” means
| (i) | a person who holds a sufficient number of the voting rights attached to all outstanding voting securities
of an Issuer to affect materially the control of the Issuer, or |
| (ii) | each person in a combination of persons, acting in concert by virtue of an agreement, arrangement, commitment
or understanding, which holds in total a sufficient number of the voting rights attached to all outstanding voting securities of an Issuer
to affect materially the control of the Issuer, |
and, if a person or combination of persons
holds more than 20% of the voting rights attached to all outstanding voting securities of an Issuer, the person or combination of persons
is deemed, in the absence of evidence to the contrary, to hold a sufficient number of the voting rights to affect materially the control
of the Issuer;
(b) “director”
means
| (i) | a member of the board of directors of a company or an individual who performs similar functions for a
company, and |
| (ii) | with respect to a person that is not a company, an individual who performs functions similar to those
of a director of a company; |
(c) “eligibility
adviser” means
| (i) | a person that is registered as an investment dealer and authorized to give advice with respect to the
type of security being distributed, and |
| (ii) | in Saskatchewan or Manitoba, also means a lawyer who is a practicing member in good standing with a law
society of a jurisdiction of Canada or a public accountant who is a member in good standing of an institute or association of chartered
accountants, certified general accountants or certified management accountants in a jurisdiction of Canada provided that the lawyer or
public accountant must not: |
| (A) | have a professional, business or personal relationship with the Issuer, or any of its directors, executive
officers, founders or control persons, and |
| (B) | have acted for or been retained personally or otherwise as an employee, executive officer, director, associate
or partner of a person that has acted for or been retained by the Issuer or any of its directors, executive officers, founders or control
persons within the previous 12 months; |
(d) “executive
officer” means, for an Issuer, an individual who is
| (i) | a chair, vice-chair or president, |
| (ii) | a vice-president in charge of a principal business unit, division or function including sales, finance
or production, or |
| (iii) | performing a policy-making function in respect of the Issuer; |
(e) “financial
assets” means
| (iii) | a contract of insurance, a deposit or an evidence of a deposit that is not a security for the purposes
of securities legislation; |
| (f) | “foreign jurisdiction” means a country other than Canada or a political subdivision
of a country other than Canada; |
(g) “founder”
means, in respect of an Issuer, a person who,
| (i) | acting alone, in conjunction, or in concert with one or more persons, directly or indirectly, takes the
initiative in founding, organizing or substantially reorganizing the business of the Issuer, and |
| (ii) | at the time of the distribution or trade is actively involved in the business of the Issuer; |
| (h) | “fully managed account” means an account of a client for which a person makes the investment
decisions if that person has full discretion to trade in securities for the account without requiring the client’s express consent
to a transaction; |
| (i) | “individual” means a natural person, but does not include |
| (i) | a partnership, unincorporated association, unincorporated syndicate, unincorporated organization or trust,
or |
| (ii) | a natural person in the person’s capacity as a trustee, executor, administrator or personal or other
legal representative; |
| (j) | “investment fund” means a mutual fund or a non-redeemable investment fund, and, for
greater certainty in British Columbia, includes an employee venture capital corporation and a venture capital corporation as such terms
are defined in National Instrument 81-106 Investment Fund Continuous Disclosure; |
| (k) | “jurisdiction” or “jurisdiction of Canada” means a province or territory
of Canada except when used in the term foreign jurisdiction; |
| (l) | “non-redeemable investment fund” means an Issuer: |
(i) whose
primary purpose is to invest money provided by its securityholders,
(ii) that
does not invest
| (A) | for the purpose of exercising or seeking to exercise control of an Issuer, other than an Issuer that is
a mutual fund or a non-redeemable investment fund, or |
| (B) | for the purpose of being actively involved in the management of any Issuer in which it invests, other
than an Issuer that is a mutual fund or a non-redeemable investment fund, and |
(iii) that
is not a mutual fund;
(m) “person”
includes
| (iii) | a partnership, trust, fund and an association, syndicate, organization or other organized group of persons,
whether incorporated or not, and |
| (iv) | an individual or other person in that person’s capacity as a trustee, executor, administrator or
personal or other legal representative; |
(n) “related
liabilities” means
| (i) | liabilities incurred or assumed for the purpose of financing the acquisition or ownership of financial
assets, or |
| (ii) | liabilities that are secured by financial assets; and |
(o) “spouse”
means, an individual who,
| (i) | is married to another individual and is not living separate and apart within the meaning of the Divorce
Act (Canada), from the other individual, |
| (ii) | is living with another individual in a marriage-like relationship, including a marriage-like relationship
between individuals of the same gender, or |
| (iii) | in Alberta, is an individual referred to in paragraph (i) or (ii), or is an adult interdependent
partner within the meaning of the Adult Interdependent Relationships Act (Alberta). |
Guidance On Accredited Investor Exemptions
for Individuals
An individual accredited investor is an individual:
| (a) | who, either alone or with a spouse, beneficially owns financial assets (please see the guidance below
regarding what financial assets are) having an aggregate realizable value that. before taxes but net of any related liabilities (please
see the guidance below regarding what related liabilities are), exceeds $1,000,000; |
| (b) | whose net income before taxes exceeded $200,000 in each of the 2 most recent calendar years or whose net
income before taxes combined with that of a spouse exceeded $300,000 in each of the 2 most recent calendar years and who, in either case,
reasonably expects to exceed that net income level in the current calendar year; |
| (c) | who, either alone or with a spouse, has net assets (please see the guidance below regarding calculating
net assets) of at least $5,000,000; and |
| (d) | who beneficially owns financial assets (please see the guidance below regarding what financial assets
are) having an aggregate realizable value that, before taxes but net of any related liabilities (please see the guidance below regarding
what related liabilities are), exceeds $5,000,000. |
The monetary thresholds above are intended to
create bright-line standards. Subscribers who do not satisfy these monetary thresholds do not qualify as accredited investors.
Spouses
Sections (a), (b) and (c) above are
designed to treat spouses as a single investing unit, so that either spouse qualifies as an accredited investor if the combined financial
assets of both spouses exceed $1,000,000, the combined net income of both spouses exceeds $300,000, or the combined net assets of both
spouses exceed $5,000,000. Section (d) above does not treat spouses as a single investing unit.
If the combined net income of both spouses does
not exceed $300,000, but the net income of one of the spouses exceeds $200,000, only the spouse whose net income exceeds $200,000 qualifies
as an accredited investor.
Financial Assets and Related Liabilities
For the purposes of sections (a) and (d) above,
“financial assets” means: (1) cash, (2) securities, or (3) a contract of insurance, a deposit or an
evidence of a deposit that is not a security for the purposes of securities legislation. These financial assets are generally liquid or
relatively easy to liquidate. The value of a subscriber’s personal residence is not included in a calculation of financial assets.
The calculation of financial assets must exclude
“related liabilities”, meaning: (1) liabilities incurred or assumed for the purpose of financing the acquisition
or ownership of financial assets, or (2) liabilities that are secured by financial assets.
As a general matter, it should not be difficult
to determine whether financial assets are beneficially owned by an individual, an individual’s spouse, or both, in any particular
instance. However, in the case where financial assets are held in a trust or in another type of investment vehicle for the benefit of
an individual, there may be questions as to whether the individual beneficially owns the financial assets. The following factors are indicative
of beneficial ownership of financial assets:
| · | physical or constructive possession of evidence of ownership of the financial asset; |
| · | entitlement to receipt of any income generated by the financial asset; |
| · | risk of loss of the value of the financial asset; and |
| · | the ability to dispose of the financial asset or otherwise deal with it as the individual sees fit. |
For example, securities held in a self-directed
RRSP for the sole benefit of an individual are beneficially owned by that individual.
In general, financial assets in a spousal RRSP
can be included for the purposes of the $1,000,000 financial asset test in section (a) above because section (a) takes into
account financial assets owned beneficially by a spouse. However, financial assets in a spousal RRSP cannot be included for purposes of
the $5,000,000 financial asset test in section (d) above.
Financial assets held in a group RRSP under which
the individual does not have the ability to acquire the financial assets and deal with them directly do not meet the beneficial ownership
requirements in either sections (a) or (d) above.
Net Assets
For the purposes of section (c) above, “net
assets” means all of a subscriber’s total assets minus all of the subscriber’s total liabilities. Accordingly, for
the purposes of the net asset test, the calculation of total assets includes the value of a subscriber’s personal residence, and
the calculation of total liabilities includes the amount of any liability (such as a mortgage) in respect of the subscriber’s personal
residence.
To calculate a subscriber’s net assets under
the net asset test, subtract the subscriber’s total liabilities from the subscriber’s total assets. The value attributed to
assets should reasonably reflect their estimated fair value. Income tax is considered a liability if the obligation to pay it is outstanding
at the time of the distribution of the security to the subscriber by the Issuer.
Guidance On Accredited Investor Exemptions
for Corporations, Trusts and Other Entities
Accredited investors that are corporations, trusts
or other entities include:
| (a) | a corporation, trust or other entity, other than an investment fund, that has net assets (please see the
guidance below regarding calculating net assets) of at least $5,000,000 as shown on its most recently prepared financial statements in
accordance with applicable generally accepted accounting principles and that has not been created or used solely to purchase or hold securities
as an accredited investor; |
| (b) | a corporation, trust or other entity in respect of which all of the owners of interests, direct, indirect
or beneficial, except the voting securities required by law to be owned by directors, are persons that are accredited investors; and |
| (c) | a trust established by an accredited investor for the benefit of the accredited investor’s family
members of which a majority of the trustees are accredited investors and all of the beneficiaries are the accredited investor’s
spouse, a former spouse of the accredited investor or a parent, grandparent, brother, sister, child or grandchild of that accredited investor,
of that accredited investor’s spouse or of that accredited investor’s former spouse. |
Net Assets
For the purposes of section (a) above, “net
assets” means all of the subscriber’s total assets minus all of the subscriber’s total liabilities. The minimum
net asset threshold of $5,000,000 specified in section (a) above must be shown on the entity’s most recently prepared financial
statements. The financial statements must be prepared in accordance with applicable generally accepted accounting principles.
The
Subscriber agrees that the above representations and warranties will be true and correct both as of the execution of this Questionnaire
and as of the Closing and acknowledges that they will survive the completion of the issue of the Common Shares.
The
Subscriber acknowledges that the foregoing representations and warranties are made by the Subscriber with the intent that they be relied
upon in determining the suitability of the Subscriber to acquire the Common Shares and that this Questionnaire is incorporated
into and forms part of the Agreement and the undersigned undertakes to immediately notify the Issuer of any change in any statement or
other information relating to the Subscriber set forth herein which takes place prior to the closing time of the purchase and sale of
any of the Common Shares.
The Subscriber undertakes to immediately notify
the Issuer of any change in any statement or other information relating to the Subscriber set forth in the Agreement or in this Questionnaire
which takes place prior to the Closing.
By completing this Questionnaire, the Subscriber
authorizes the indirect collection of this information by each applicable regulatory authority or regulator and acknowledges that such
information is made available to the public under applicable laws.
DATED as of _______ day of ,
2023.
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FCA ARGENTINA S.A. |
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By: |
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Name: |
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Title: |
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By: |
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Title: |
Appendix
"A"
TO EXHIBIT A
TO CANADIAN INVESTOR QUESTIONNAIRE
Form 45-106F9
WARNING!
This investment is risky. Don’t invest
unless you can afford to lose all the money you pay for this investment. |
SECTION 1 TO BE COMPLETED BY THE ISSUER OR SELLING SECURITY HOLDER |
1. About your investment |
Type
of securities: Common Shares at a price of US$26.00 per Common Share. |
Issuer:
McEwen Copper Inc. (the “Issuer”) |
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Acquired from: The Issuer. |
SECTIONS 2 TO 4 TO BE COMPLETED BY THE PURCHASER |
2. Risk acknowledgement |
This investment is risky. Initial that you understand that: |
Your
initials |
Risk of loss – You could lose your entire investment of $__________. [Instruction: Insert the total dollar amount of the investment.] |
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Liquidity risk – You may not be able to sell your investment quickly – or at all. |
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Lack of information – You may receive little or no information about your investment. |
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Lack
of advice – You will not receive advice from the salesperson about whether this investment is suitable for you unless
the salesperson is registered. The salesperson is the person who meets with, or provides information to, you about making this investment.
To check whether the salesperson is registered, go to www.aretheyregistered.ca. |
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3. Accredited investor status |
You must meet at least one of the following criteria to be able to make this investment. Initial the statement that applies to you. (You may initial more than one statement.) The person identified in section 6 is responsible for ensuring that you meet the definition of accredited investor. That person, or the salesperson identified in section 5, can help you if you have questions about whether you meet these criteria. |
Your
initials |
· Your
net income before taxes was more than $200,000 in each of the 2 most recent calendar years, and you expect it to be more than $200,000
in the current calendar year. (You can find your net income before taxes on your personal income tax return.) |
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· Your net income before taxes combined with your spouse’s was more than $300,000 in each of the 2 most recent calendar years, and you expect your combined net income before taxes to be more than $300,000 in the current calendar year. |
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· Either alone or with your spouse, you own more than $1 million in cash and securities, after subtracting any debt related to the cash and securities. |
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· Either
alone or with your spouse, you have net assets worth more than $5 million. (Your net assets are your total assets (including real estate)
minus your total debt.) |
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4. Your name and signature |
By signing this form, you confirm that you have read this form and you understand the risks of making this investment as identified in this form. |
First and last name (please print): |
Signature: |
Date: |
SECTION 5 TO BE COMPLETED BY THE ISSUER |
5. For more information about this investment |
McEwen Copper Inc.
150 King Street West, S. 2800
Toronto, ON M5H 1J9
Attention: Carmen Diges
Email: cdiges@mcewenmining.com |
For
more information about prospectus exemptions, contact your local securities regulator. You can find contact information at www.securities-administrators.ca. |
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Form instructions:
1. |
This form does not mandate the use of a specific font size or style but the font must be legible |
2. |
The information in sections 1, 5 and 6 must be completed before the Subscriber completes and signs the form. |
3. |
The Subscriber must sign this form. Each of the Subscriber and the Issuer or selling security holder must receive a copy of this form signed by the Subscriber. The Issuer or selling security holder is required to keep a copy of this form for 8 years after the distribution. |
exhibit
“B”
FORM OF ICC Agreement
City of Buenos Aires, [October 10], 2023
Messrs.
ANDES CORPORACIÓN MINERA S.A.
Perú 930, 2nd floor,
City of Mendoza, Mendoza
Republic of Argentina
Ref.: ICC Offer No. 3/2023
Dear Sirs,
FCA ARGENTINA S.A., a company duly organized
and existing under the laws of the Republic of Argentina, with its legal domicile at Carlos María della Paolera 265, 22nd
floor, City of Buenos Aires (the “Contributor”) hereby addresses ANDES CORPORACIÓN MINERA S.A., a company duly
organized and existing under the laws of the Republic of Argentina, with its legal domicile at Perú 930, 2nd floor, of the
City of Mendoza (the “Company”) in order to submit an offer regarding an irrevocable capital contribution on account of
future capital subscription (the “Offer”).
In case of acceptance, terms and conditions detailed
in Annex I will be applicable.
The Offer will be valid for a term of five (5) business
days from its delivery to the Company, and will be deemed accepted if the Company, within such term, delivers a written letter of acceptance
to the Contributor at the following email addresses: francisco.bellucci@stellantis.com; german.penelas@stellantis.com; and miguelignacio.prefumo@stellantis.com,
duly executed by the Company, expressly accepting this Offer (the “Acceptance Letter”).
This Offer will be governed in accordance with
the laws of the Republic of Argentina.
Yours sincerely, |
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FCA ARGENTINA S.A. |
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Name: Miguel Ignacio Prefumo |
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Title: Authorized Attorney |
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Name: Germán Federico Penelas |
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Title: Authorized Attorney |
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Signature page to ICC Offer No. 3/2023
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ANNEX I - TERMS AND CONDITIONS
In case of acceptance of the Offer, the relationship
between the Company and the Contributor shall be subject to the following terms and conditions:
1°) Within three (3) working days after
the acceptance of the Offer, the Contributor will make an irrevocable capital contribution on account of future capital subscriptions
for the amount in Argentine pesos equivalent to the amount of USD 49,400,000 (forty-million four hundred thousand United States Dollars)
(the “Irrevocable Capital Contribution”). The amount in Argentine pesos will be determined by application of an exchange rate
equal to the weighted average exchange rates resulting from the amount and volume traded of the S31O3 and SO3D bonds with liquidation
term at sight (t+0 or "contado inmediato") within the period of five (5) working days preceding the date that the Irrevocable
Capital Contribution is to be made by the Contributor.
2°) The Irrevocable Capital Contribution will
be paid by the Contributor by delivering an echeq (cheque electrónico) at sight duly endorsed in favour of the Company.
3°) The Irrevocable Capital Contribution will
be used by the Company in Argentina to reduce debt, for project development expenses and for general corporate purposes of the Company
and will remain in Argentine Pesos. The Irrevocable Capital contribution cannot be used under any circumstance to make any foreign exchange
transaction, including but not limited to blue-chip swap (contado con liquidación) transactions. This will not prevent the Company
from implementing the cash management strategies that may be required to preserve the purchasing power of the Argentine pesos vis-à-vis
inflation and/or devaluation until such Argentine pesos are used for the stated purposes.
4°) The Irrevocable Capital Contribution does
not accrue compensatory interest.
5°) The Contributor irrevocably and unconditionally
agrees to maintain the Irrevocable Capital Contribution in the Company during the term of no more than 180 (one hundred and eighty) days
as of the acceptance of the Irrevocable Capital Contribution by the Board of Directors of the Company. During such term, the Shareholders’
Meeting of the Company must consider the capitalization or restitution of the Irrevocable Capital Contribution.
6°) In the event the Shareholders’ Meeting
approves the capitalization of the Irrevocable Capital Contribution, the Contributor will receive shares of the Company at a par value
(AR$ 100 per share).
7°) If the term provided in Section 5
above expires without the Shareholders’ Meeting having expressly considered the capitalization of the Irrevocable Capital Contribution,
the amount of the Irrevocable Capital Contribution will be registered as a debt of the Company in favor of the Contributor (the “Credit”).
Therefore, the Company shall upon demand of the Contributor take all necessary actions to reimburse the Irrevocable Capital Contribution
to the Contributor (in accordance with applicable regulations). In the event that the Company does not proceed with the reimbursement,
no compensatory interest will be accrued, without prejudice to the punitive interest that may correspond.
8°) In the event any act of bankruptcy or
suspension of payments of the Company, the Credit will be considered subordinated under the terms of article 2575 of the Civil and Commercial
Code of the Argentine Republic.
9°) Contributor shall bear 50% of the applicable
debits and credits tax rate to the deposit of the Irrevocable Capital Contribution in ACM bank account amounting to AR$ 125,184,791.85
(Argentine pesos one hundred twenty five millions one hundred eighty four thousand seven hundred ninety-one, with eighty five cents).
10°) In the event this Offer is accepted by
the Company and the Contributor effectively transfers the funds to the Company, the resulting rights of the Contributor arising from the
ICC Contribution will only be assignable by the Contributor to McEwen Copper, Inc.
11°) The Offer will be governed in accordance
with the laws of the Republic of Argentina. In case of any disagreement, dispute or conflict arising from this Offer, the Company expressly
agrees to submit the dispute to the Commercial Courts of the City of Mendoza.
exhibit
“C”
FORM OF ICC Assignment Agreement
City of Buenos Aires, October 10, 2023
MCEWEN COPPER INC.
Atn. Carmen Diges
Email: cdiges@mcewenmining.com
150 King Street West, S. 2800
Toronto, Ontario,
Canada
Ref.: ICC AOL N° 3/2023
Dear Sirs:
FCA ARGENTINA S.A., a company duly registered
and existing in accordance with the laws of the Republic of Argentina (the “Subscriber”) hereby makes the following irrevocable
offer (the “Assignment Offer”) to MCEWEN COPPER INC., a company duly registered and existing in accordance with the laws of
the Province of Alberta (“Issuer”, and together with the Subscriber the “Parties”), on and subject to the terms
and conditions set in Annex I hereto.
This Assignment Offer will remain valid for five
(5) business days from its delivery to the Issuer and shall be deemed accepted if the Issuer, within such term, delivers a written
letter of acceptance to the Subscriber at the following email addresses: francisco.bellucci@stellantis.com; german.penelas@stellantis.com;
and miguelignacio.prefumo@stellantis.com, duly executed by the Issuer, expressly accepting this Assignment Offer, according to the template
included as Annex II (the “Acceptance Letter”).
Upon acceptance of this Assignment Offer by the
Issuer, in accordance with the procedure set forth above, the Parties shall be deemed to have entered into an agreement governed by the
terms and condition detailed in Annex I, together with its exhibits (the “Agreement”), as of the date on which the Acceptance
Letter is received by the Subscriber (the “Effective Date”).
This Assignment Offer will be governed in accordance
with the laws of the Republic of Argentina.
Yours sincerely,
Reminder of this page intentionally left
in blank. Signature page following on next page.
Signature page to ICC AOL No. 3/2023
FCA Argentina S.A. |
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Name: Miguel Ignacio Prefumo |
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Title: Attorney in fact |
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Name: Germán Federico Penelas |
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Title: Attorney in fact |
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ANNEX I – TERMS AND CONDITIONS
WHEREAS on October 10, 2023, the Subscriber
subscribed for 1,900,000 common shares in the Issuer for an amount of USD 49,400,000 (forty-nine million four hundred thousand United
States Dollars) under the Private Placement Subscription Agreement dated October 10, 2023 (the “Subscription Agreement”).
AND WHEREAS, on October 10, 2023, the Subscriber
sent an offer, ICC Offer No. 3/2023 to Andes Corporación Minera S.A. (“ACM”), a wholly owned indirect subsidiary
of the Issuer, to make an irrevocable capital contribution to ACM, which offer was accepted by ACM on [Date], 2023. Copies of such offer
and acceptance are attached as Exhibit A (the “ICC Agreement”).
AND WHEREAS, on October 10, 2023, the Subscriber
endorsed in favor of ACM an echeq (cheque electrónico), issued by Santander Valores equal to the amount of ARS 41,728,263,949 (forty-one
thousand seven hundred and twenty eight million two hundred and sixty three thousand nine hundred and forty nine pesos) in full satisfaction
of the ICC Agreement.
AND WHEREAS, as of the Effective Date the irrevocable
capital contribution under the ICC Agreement has not been capitalized by ACM.
AND WHEREAS, the Subscriber wishes to assign to
the Issuer as payment for the shares issued to the Subscriber by the Issuer under the Subscription Agreement all its rights, duties, obligations,
titles and interests under the ICC Agreement, and the Issuer wishes to accept and consent to such assignment in accordance with the terms
and conditions provided herein.
NOW THEREFORE, the Parties agree as follows:
FIRST: Assignment. The Subscriber irrevocably
assigns to the Issuer and the Issuer irrevocably accepts from the Subscriber all its rights, duties, obligations, titles and interests
established in the ICC Agreement.
SECOND: Payment. In exchange for the assignment
of the ICC Agreement by the Subscriber to the Issuer, the Issuer will issue, deliver to and register under the Subscriber´s name,
the total amount of 1,900,000 common shares of the Issuer, which – considering the total number of 28,885,000 common shares issued
and outstanding immediately before the issuance of such shares – after being issued will represent approximately [*] % of all outstanding
shares of the Issuer (the “Shares”) in accordance with the terms and conditions set forth in the Subscription Agreement.
THIRD: Notification. The Subscriber shall promptly
provide notice to ACM of the assignment of the ICC Agreement subject to the terms and conditions of this Assignment Agreement, according
to sections 1614 and 1620 of the Civil and Commercial Code of the Republic of Argentina.
FOURTH: Representations and Warranties of the
Subscriber. The Subscriber represents and warrants:
(i) it has full powers and capacity to make
the Offer and to enter into this Assignment Agreement;
(ii) this Assignment Agreement is valid and
enforceable against the Subscriber in accordance with its terms, and does not constitute a violation of any law, order or agreement to
which the Subscriber is a party;
(iii) the Subscriber is the sole legal and
beneficial holder of the rights arising from the ICC Agreement;
(iv) the ICC Agreement is in full force and
effect and is transferable to the Issuer; and
(v) all representations and warranties granted
by the Subscriber under the Subscription Agreement shall also apply in their entirety mutatis mutandis to this Assignment Agreement.
FIFTH: Representations and Warranties of the Issuer.
The Issuer represents and warrants to the Subscriber that:
(i) it has full powers and capacity to accept
the Offer and to enter into this Assignment Agreement;
(ii) this Assignment Agreement is valid and
enforceable against the Issuer in accordance with its terms, and does not constitute a violation of any law, order or agreement to which
the Issuer is a party;
(iii) it recognizes that the ICC Agreement
assigned by the Subscriber in favor of the Issuer, as well as the liabilities assumed by the Issuer, are irrevocable and therefore, the
Issuer will not have any appeal against the Subscriber, except in cases were the Subscriber is in breach in any material respect of any
representations and warranties or covenants under this Assignment Agreement;
(iv) it has taken all corporate steps and
proceedings necessary to duly approve the transactions contemplated under this Assignment Agreement, including its execution and delivery;
(v) it is not in breach of any securities
laws; and
(vi) all representations and warranties granted
by the Issuer under the Subscription Agreement shall also apply in their entirety mutatis mutandis to this Assignment Agreement.
SIXTH. Applicable Law. Jurisdiction. Legal Domiciles.
This Agreement shall be governed by and construed in accordance with the laws of the Republic of Argentina.
In the event of any dispute under this Agreement,
each of the Parties agrees to submit to the jurisdiction of the National Commercial Court of Appeals of the City of Buenos Aires, and
irrevocably attorns to the exclusive jurisdiction of the National Commercial Court of Appeals of the City of Buenos Aires in all matters
related to, or arising from, this Agreement.
All notifications, claims, requests, and other
type of communications, must be in writing and delivered to the following domiciles:
If to the Subscriber:
FCA Argentina S.A.
Carlos María Della Paolera 265, 22nd floor,
C1001ADA Buenos Aires, Argentina
Attn: Matheus de Oliveria Rocha / Francisco Bellucci
/ Germán Federico Penelas
Email: matheus.rocha@stellantis.com / francisco.bellucci@stellantis.com
/ german.penelas@stellantis.com.
with a copy (which shall not constitute notice)
to:
Marval O´Farrell & Mairal
Av. Leandro N. Alem 882, Piso 13
C1001AAQ Buenos Aires. Argentina
Attn: Diego Krischcautzky / Macarena García
Mirri
E-Mail: dk@marval.com / mgmi@marval.com
Phone: + 54 11 4310-0100
McCarthy Tétrault LLP
Suite 2400, 745 Thurlow Street
Vancouver, BC. Canada
V6E 0C5
Attn.: Shawn Doyle
Email: sdoyle@mccarthy.ca
If to the Issuer:
McEwen Copper Inc.
150 King Street West, S. 2800
Toronto, Ontario, Canada
Attn: Carmen Diges
Email: cdiges@mcewenmining.com
[Remaining of page intentionally left in blank]
exhibit
“d”
FORM OF IRA Amendment
AMENDMENT NO. 2 TO
INVESTOR RIGHTS AGREEMENT
THIS AMENDMENT NO. 2
TO THE INVESTOR RIGHTS AGREEMENT is made as of October 10, 2023 among FCA Argentina S.A., a corporation existing under the laws of
Argentina (the “Investor”), McEwen Copper Inc., a corporation existing under the laws of the Province of Alberta (the
“Corporation”), McEwen Mining Inc., a corporation existing under the laws of the State of Colorado (“McEwen
Mining”), Minera Andes Inc. (“Minera Andes”), a corporation existing under the laws of the Province of Alberta,
and Robert R. McEwen, an individual acting in his personal capacity (“Robert R. McEwen”) (collectively, the “Parties”).
WHEREAS
the Parties are party to an investor rights agreement dated February 24, 2023, as amended by the amendment No. 1 dated as of
March 10, 2023 (the “IRA”), and the Parties have agreed to additional rights and obligations and now desire to
amend the terms of the IRA to reflect such agreement;
AND
WHEREAS, Section 8.12 of the IRA provides that the IRA may be amended by agreement in writing by each of the Parties;
NOW
THEREFORE, in consideration of the mutual covenants and agreements contained in this Amendment No. 2 and other good and
valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto covenant and agree as follows:
(1) Section 4.01(3) of
the IRA shall be deleted in its entirety.
(2) This
Amendment No. 2 is hereby incorporated in and shall form part of the IRA. The IRA as amended by this Amendment No. 2 shall constitute
one agreement and shall continue in full force and effect subject to this Amendment No. 2, and the IRA as so amended is hereby ratified
and confirmed by the parties hereto.
(3) This
Amendment No. 2 shall be governed by and construed in accordance with the laws of the Province of Ontario (without giving
effect to any conflict of laws principles thereunder) and the federal laws of Canada applicable therein.
(4) The
Parties acknowledge that they have entered into this Amendment No. 2 willingly with full knowledge of the obligations imposed
by the terms of this Amendment No. 2. Further, the Parties acknowledge that they have been afforded the opportunity to obtain independent
legal advice and confirm by the execution of this Amendment No. 2 that they have either done so or waived their right to do so, and
agree that this Amendment No. 2 constitutes a binding legal obligation and that they are estopped from raising any claim on the basis
that they have not obtained such advice.
(5) This
Amendment No. 2 may be executed in any number of counterparts, and it shall not be necessary that the signatures of all parties hereto
be contained on any counterpart. Each counterpart shall be deemed an original, but all counterparts together shall constitute one and
the same instrument. Counterparts may be delivered by electronic transmission and the parties hereto adopt any signatures so received
as original signatures of the parties hereto.
[Signature Page Follows]
IN WITNESS WHEREOF the Parties hereto have duly executed this Amendment
No. 2 as of the date and year first above written.
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McEwen Copper Inc. |
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Per: |
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Authorized Signatory |
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McEwen
Mining Inc. |
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Per: |
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Authorized Signatory |
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MINERA ANDES INC. |
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Per: |
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Authorized Signatory |
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FCA ARGENTINA S.A. |
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Per: |
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Authorized Signatory |
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Per: |
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Authorized Signatory |
exhibit
“E”
FORM OF CCCPRA Amendment
October 10, 2023
Via Electronic Mail
Messrs.
FCA Argentina S.A.
Carlos María della Paolera 265, 22nd floor
City of Buenos Aires
Republic of Argentina
Attention: Francisco Bellucci and Matheus Rocha
Email:
francisco.bellucci@stellantis.com and matheus.rocha@stellantis.com
Re: CCC Offer No. 2/2023
Dear Sirs,
ANDES
CORPORACIÓN MINERA S.A., a company duly organized and existing under the laws of the Republic of Argentina, with its
legal domicile at Perú 930, 2nd floor of the City of Mendoza (the “Seller”) is pleased to submit
this irrevocable offer to FCA ARGENTINA S.A., a company duly organized and existing under the laws of the Republic of Argentina,
with its legal domicile at Carlos María della Paolera 265, 22nd floor, City of Buenos Aires (“Stellantis”,
and together with the Seller, the “Parties”, and each a “Party”) to enter into an amendment to the
CCCPRA (as defined in Annex I), subject to the terms and conditions set forth in Annex I attached hereto (the “Offer”).
This Offer will be valid for a term of five (5) business
days from the date hereof (the “Validity Term”), and shall be considered accepted by Stellantis only if the Seller
receives within the Validity Term from Stellantis a letter expressly accepting this Offer.
Any term, condition, statement, representation
or guarantee expressed in this Offer which may indicate an assertion, abstention, commitment and/or general right or obligation –
whatever the grammatical form may be – shall only be enforceable and valid for the Parties if this Offer is accepted pursuant to
the terms hereof. If this Offer is not accepted, such term, condition, statement, representation and/or guarantee shall not be valid or
enforceable and shall not cause any legal commitment since they shall be deemed as if they had not been written.
Upon acceptance of this Offer by Stellantis, in
accordance with the procedure set forth above, the amendment to the CCCPRA (the amendment being referred to herein as the “Agreement”)
shall enter into force between the Parties and shall be governed by the terms and conditions hereby attached as Annex I as of the
date on which the acceptance is received by the Seller (the “Effective Date”).
This Offer will be governed in accordance with
the laws of the State of New York.
Sincerely, |
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Andes
Corporación Minera S.A. |
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Name: |
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Title: |
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I have the authority to bind the company
ANNEX I
TERMS AND CONDITIONS
WHEREAS
by CCC Offer No. 1/2023 issued by the Seller on February 23, 2023 and accepted by Stellantis on February 24, 2023, the
Parties entered into a copper cathodes and concentrates purchase rights agreement (the “CCCPRA”);
AND
WHEREAS capitalized terms used and not otherwise defined herein have the meanings given to them in the CCCPRA;
AND
WHEREAS the Seller is an indirect wholly owned subsidiary of McEwen Copper Inc. (“MCI”);
AND
WHEREAS pursuant to a subscription agreement (the “Subscription Agreement”) dated on or about the date hereof
between Stellantis and MCI, Stellantis has agreed to subscribe for, and MCI has agreed to issue to Stellantis, 1,900,000 common shares
of MCI;
AND
WHEREAS it is a condition to the closing of the transactions contemplated in the Subscription Agreement that the Seller issue
the Offer to Stellantis, and the Parties wish to enter into this Agreement to set forth certain amendments to the CCCPRA;
NOW
THEREFORE, in consideration of the mutual covenants and agreements of the Parties hereinafter contained and other good and
valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each Party) if the Offer is accepted in accordance
with the procedure set forth in the main body of the Offer, the following Terms and Conditions of the Agreement shall enter into force
as of the Effective Date.
1. The CCCPRA remains in full force and effect,
and is hereby ratified and confirmed in all respects as amended hereby. Except as expressly provided in this Agreement, no terms and conditions
of the CCCPRA are hereby amended, modified, supplemented or waived. From the Effective Date, the CCCPRA and this Agreement shall be read
together to the extent reasonably possible as though all of the terms of both documents were contained in one instrument.
2. Section 1 is hereby deleted
and replaced as follows:
“1. Option
Grant: For the sum of ten (10) United States Dollars and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Seller hereby irrevocably grants to Stellantis and its affiliates (collectively,
the “Stellantis Group”) the option (the “Option”) to acquire and receive from the Seller, and
the Seller agrees, if the Option is exercised, to sell and deliver to each Stellantis Buyer (as defined herein) copper cathodes
(“Cathodes”) and copper concentrates (“Concentrates”) in such amounts as are described in
Sections 3 and 3.1, produced by the Seller from the Project, free and clear of any mortgages, charges, assignments, pledges,
security interests, liens or other encumbrances or adverse claims of any nature or kind securing any obligation of any person
(“Encumbrances”), on and subject to the terms and conditions set forth herein. The “Project”
means the Los Azules project located in the Province of San Juan, Argentina, which is comprised of the mining and mineral processing
operations on or in the vicinity of the mining rights listed in, and the map set out in, Schedule A hereto. The Parties acknowledge
and agree that Stellantis holds the benefits and rights under this Agreement, including the right to exercise the Option, for and on
behalf of itself and the other members of the Stellantis Group.
3. Section 2.2 is hereby deleted and replaced as follows:
“2.2. At
any time during the Option Period, Stellantis may exercise the Option by providing written notice (the “Option Exercise Notice”)
to the Seller.
Upon receipt of the Option Exercise Notice, the
Parties shall negotiate in good faith the terms and conditions of a definitive copper offtake agreement or agreements (the “Definitive
Agreements”, and such term shall include the singular and plural), which will incorporate the Cathodes and Concentrates purchase
rights of the Stellantis Group described herein, to be executed by the Seller and Stellantis (or another company in the Stellantis Group
designated by Stellantis) within the following ninety (90) day period. The “Stellantis Buyer” means any company in
the Stellantis Group designated by Stellantis from time to time as purchaser of Cathodes or Concentrates under the Definitive Agreements.
4. A new Section 3.1 is hereby
added as follows:
“3.1 (a) Notwithstanding
Stellantis’ Ownership Percentage and any other provision to the contrary herein, subject to Stellantis’ compliance with Section 3.2,
the Stellantis Buyer shall have the right (the “Minimum Cathodes Offtake Right”) under the Definitive Agreements to
elect, in respect of each calendar year, to purchase 10,000 tonnes of Cathodes (or a lesser amount, at the Stellantis Buyer’s election)
produced from the Project; provided that the total production of Cathodes during such calendar year from the Project is projected by the
Seller (acting in good faith) to be at least 25,000 tonnes; provided, further, that, if the Seller projects less than 25,000 tonnes of
Cathodes production for a year, then the Stellantis Buyer shall have the right to purchase an amount equal to 40% of the projected Cathodes
production (the “Adjusted Amount”) (or a lesser amount, at the Stellantis Buyer’s election) during such year;
and if the actual Cathodes production for such year exceeds 25,000 tonnes, then an amount equal to 10,000 tonnes of Cathodes less the
Adjusted Amount shall be carried forward in the form of a purchase right (and not a purchase obligation) to subsequent year(s) (the
“Carried-Forward Tonnage”) in a manner to be agreed by the Parties, each acting in good faith, and included in the
Definitive Agreements (and such Carried-Forward Tonnage purchase right shall be in addition to any other Cathodes or Concentrates purchase
rights in this Article 3).
(b) For the avoidance of doubt, the Minimum
Cathodes Offtake Right shall not be linked in any respect to Stellantis’ Ownership Percentage (i.e., if, based on Stellantis’
then Ownership Percentage and the other purchase rights in this Article 3, Stellantis would have the right to purchase 7,500 tonnes
of Cathodes in the applicable year, Stellantis shall, as a result of the application of this Section 3.1, have the right to purchase
10,000 tonnes of Cathodes (or a lesser amount, at the Stellantis Buyer’s election) during such year, on and subject to the other
terms and conditions in this Section 3.1). For the further avoidance of doubt, any Cathodes purchased by the Stellantis Buyer pursuant
to the Minimum Cathodes Offtake Right (except for Carried Forward Tonnage, as applicable) shall be included when determining: (i) quantity
limits imposed in respect of other purchase rights under this Article 3, and (ii) the amount of annual Cathodes production from
the Project in the relevant calendar year. Finally, for the yet further avoidance of doubt, for so long as this Section 3.1 remains
in effect, the Stellantis Buyer shall always have the right to purchase the greater of (x) the amount of Cathodes permitted under
this Section 3.1 and (y) the amount of Cathodes permitted under this Article 3 based on its Ownership Percentage.”
5. A new Section 3.2 is hereby
added as follows:
“3.2 In
consideration of the benefit that the Minimum Cathodes Offtake Right will confer upon Stellantis, which right is conditional upon Stellantis’
compliance with this Section 3.2, Stellantis will not, without the prior consent of McEwen Copper Inc. (“MCI”),
from the Effective Date until October 10, 2033 (the “Limitation Period”): (i) offer, sell, contract to sell,
pledge, transfer, assign or otherwise dispose of (including, without limitation, by making any short sale, engage in any hedging, monetization
or derivative transaction), or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any
of the economic consequences of ownership of common or any other securities of MCI that are substantially similar to common shares, or
any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing, whether
any such transaction is to be settled by delivery of common shares of MCI or such other securities, in cash or otherwise in respect of,
any common shares of MCI which have been issued, sold or otherwise transferred to Stellantis by MCI from time to time (the “Affected
Securities”).
The above paragraph shall not apply to, and for
certainty Stellantis shall not require the prior consent of MCI to: (a) sell or transfer any of the Affected Securities to any other
company in the Stellantis Group provided the transferee thereof agrees in writing to be bound by the terms of this Section 3.2 for
the remainder of the Limitation Period; or (b) sell any of the Affected Securities pursuant to a bona fide take-over bid or similar
transaction made to all holders of MCI’s common shares, including, without limitation, a merger, business combination, share exchange,
arrangement or amalgamation, involving a change of control of MCI and provided that, in the event such transaction is not completed, the
Affected Securities shall remain subject to the restrictions contained in this Section 3.2.
In the event that Stellantis completes a
sale of Affected Securities during the Limitation Period, except for any sale pursuant to an exemption described in the paragraph
above, Stellantis shall give written notice to the Seller within 10 days thereafter referencing this Section 3.2 and confirming
such non-exempt sale of Affected Securities has occurred, following which Section 3.1 shall be deemed to be terminated
permanently. For the avoidance of doubt, the consequences of Stellantis breaching any of its obligations under this Section 3.2
shall be limited to the termination of Section 3.1 and neither MCI nor the Seller shall have any other remedy or recourse
against Stellantis or any other company in the Stellantis Group as a result thereof. For the avoidance of doubt, other than
termination of Section 3.1, any breach of this Section 3.2 by Stellantis shall not result in the termination of any
provision or any rights of Stellantis under this Agreement or under the Definitive Agreements, and such Agreements shall otherwise
continue in full force and effect (i.e., if Stellantis completes a non-exempt sale of Affected Securities during the Limitation
Period, then Stellantis shall nonetheless retain the right to purchase up to an amount of Cathodes and/or Concentrates (or a
combination thereof) produced from the Project based on its then Ownership Interest, as described more fully in this
Article 3).”
6. A new Section 4.1 is hereby
added as follows:
“4.1 Without
limiting any other provision in this Article 4 (including but not limited to the requirement that purchase prices in the Definitive
Agreements be no less favorable to the Stellantis Buyer than the most favorable prices (for a purchaser’s perspective) that the
Seller has agreed with any other party), the Definitive Agreements shall include an option for the Stellantis Buyer to elect, in respect
of London Metal Exchange (LME) Grade “A” Cathodes (or such other equivalent grade of Cathodes as may be produced from the
Project, from time to time), to:
(a) price
Cathode deliveries at the average daily closing price on the LME during the 30- calendar days prior to
the delivery date (“First Quotational Period”); or
(b) price
Cathode deliveries at the average daily closing price on the LME during the 30- calendar days after the
delivery date (“Second Quotational Period”),
provided that the Stellantis Buyer must
make the election to use the First Quotational Period or Second Quotation Period at least two business days prior to payment, such payment
to be due 30 days from the delivery date.”
7. A new Section 13 is hereby added
as follows:
“13. Amendment:
This Agreement may only be amended by the written agreement of all the Parties or, as applicable, their permitted successors and assigns.”
8. A new Section 14 is hereby added
as follows:
“14. Notice:
(a) All
notices and other required or permitted communications (each a “Notice”) to a Party shall be in writing, and
shall be addressed respectively as follows:
(i) If to the Seller:
Perú 930, 2nd floor
City of Mendoza
Republic of Argentina
Attention: General Counsel
E-mail: notice@mcewenmining.com
(ii) If to Stellantis:
Carlos María della Paolera 265, 22nd
floor
City of Buenos Aires
Republic of Argentina
Attention: Francisco Bellucci and Matheus Rocha
Email:
francisco.bellucci@stellantis.com and matheus.rocha@stellantis.com
and a copy to:
McCarthy Tétrault LLP
Suite 2400 – 745 Thurlow Street
Vancouver, B.C. V6E 0C5
Attention:
Shawn Doyle
Email: sdoyle@mccarthy.ca
(b)
All Notices shall be given:
(i) by personal delivery;
(ii) by electronic communication,
capable of producing a printed transmission;
(iii) by registered or certified
mail return receipt requested; or
(iv) by overnight or other express
courier service.
(c) All Notices shall be effective and shall
be deemed given on the date of receipt at the principal address if received during normal business hours on a business day in the jurisdiction
of the recipient, and, if not received during normal business hours, on the next business day in the jurisdiction of the recipient following
receipt, or if by electronic communication, on the date of such communication if received by the recipient during normal business hours
on a business day in the jurisdiction of the recipient, and, if not received during normal business hours, on the next business day in
the jurisdiction of the recipient following receipt. Any change of address may be made by Notice to the other Parties.
9. Schedule B of the CCCPRA is hereby
deleted.
10. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York (without giving effect to any conflict of laws principles thereunder).
[Remainder of page has been intentionally
left blank.]
exhibit
“F”
Form of Nuton Consent
ACKNOWLEDGEMENT AND CONSENT
TO: |
MCEWEN COPPER INC. |
|
AND TO: |
MCEWEN MINING INC. |
|
MINERA ANDES INC. |
|
INTERNATIONAL COPPER MINING INC. |
|
LOS AZULES MINING INC. |
|
SAN JUAN COPPER INC. |
|
ANDES CORPORACION MINERA S.A. |
RE: | Nuton Collaboration Agreement dated August 30, 2022 among McEwen Copper Inc. and McEwen Mining Inc. and Robert R. McEwen and
Nuton LLC (as amended, the “NCA”) |
Unanimous Shareholder Agreement dated August 20, 2021
among McEwen Copper Inc., Minera Andes Inc., Evanachan Limited, and the other shareholders of McEwen Copper Inc. (the “SHA”)
WHEREAS
pursuant to Section 2.05(1)(b) of the NCA, without the prior written consent of Nuton LLC (“Nuton”),
neither McEwen Copper Inc. (“MCI”) nor its subsidiaries shall issue shares of any subsidiary of MCI to any person other
than MCI or any of its subsidiaries unless required to do so by applicable law or regulation;
AND
WHEREAS pursuant to Section 2.05(1)(c) of the NCA, without the prior written consent of Nuton, neither MCI nor its
subsidiaries shall distribute its assets to any shareholder other than MCI or any of its subsidiaries;
AND
WHEREAS pursuant to Section 2.05(1)(e) of the NCA, without the prior written consent of Nuton, neither MCI nor its
subsidiaries shall enter into any transaction with any Related Party (as defined in the NCA), subject to certain exceptions;
AND
WHEREAS pursuant to the terms of a subscription agreement, a draft of which Nuton has had the
opportunity to review (the “Subscription Agreement”), whereby FCA Argentina S.A.
(“Stellantis”) proposes to subscribe for 1,900,000 common shares (“Subscription Shares”) of MCI
for non-cash consideration equivalent to US $49,400,000 (the “Subscription Price”) payable according to the following
sequential steps (the “Consideration Steps”): (i) Stellantis shall deliver an offer to Andes Corporación
Minera S.A. (“ACM”) pursuant to which the Subscriber will offer to make an irrevocable capital contribution (“ICC”)
on account of future capital subscription to ACM of an amount in Argentine Pesos equal to the Subscription Price calculated utilizing
the exchange rate contemplated in the Subscription Agreement; (ii) MCI shall cause ACM to accept the offer to enter into the ICC
Agreement, substantially in the form attached to the Subscription Agreement (the “ICC Agreement”); (iii) Stellantis
shall contribute the Subscription Price in Argentine Pesos exchanged at the rate provided for in the Subscription Agreement (the “ICC
Amount”); (iii) Stellantis shall pay the ICC Amount by e-cheque endorsed in favour of ACM; (iv) ACM shall acknowledge
receipt of the ICC Amount to MCI; (v) Stellantis shall make an offer to assign the ICC Agreement to MCI substantially in the form
attached to the Subscription Agreement (the “ICC Assignment Agreement”), which MCI shall accept and shall issue the
Subscription Shares to Stellantis (all collectively, the “Offering”);
AND
WHEREAS MCI shall then convert the ICC into shares of ACM and further contribute such ACM shares for shares of International
Copper Mining Inc. (“ICMI”), Los Azules Mining Inc. (“LAMI”) and San Juan Copper Inc. (“SJCI”)
(the “Follow-on Transactions”);
AND
WHEREAS the Offering and the Follow-on Transactions are Related Party transactions that require consent under the NCA;
AND
WHEREAS as a condition of the Offering MCI, McEwen Mining Inc., and Robert McEwen are required to execute
an amendment to the investor rights agreement dated February 23, 2023 (as amended on March 10, 2023), a
draft of which Nuton has had the opportunity to review (the “IRA Amendment”), with
Stellantis, which also constitutes a Related Party transaction under the NCA;
AND
WHEREAS under Section 2.06 of the NCA, if MCI or any of its subsidiaries propose to issue, grant, sell or enter into
any offtake, metal streaming or royalty transaction of rights (or any similar commodity-linked transaction or rights) affecting the
Los Azules asset, Nuton shall be provided an equal opportunity to evaluate and bid on any such offtake, metal streaming or royalty
transaction or rights (or any similar commodity-linked transaction or rights);
AND
WHEREAS as a condition of the Offering, ACM is required to execute an amendment to the
copper cathodes and concentrates purchase rights agreement dated February 23, 2023, a draft of which
Nuton has had the opportunity to review (the “CCCPRA Amendment”), with Stellantis in respect of the Los Azules
project;
AND
WHEREAS the Offering triggers pre-emptive rights and consent rights, respectively, of MCI’s shareholders under Sections
4.1 and 5.1 of the SHA;
NOW
THEREFORE, for good and valuable consideration the receipt and sufficiency of which are acknowledged:
| 1. | Nuton hereby consents to the Offering, the Follow-on Transaction, the execution of the IRA Amendment and
the execution of the CCCPRA Amendment by the parties thereto. |
DATED
this day of October, 2023.
NUTON LLC
exhibit
“G”
Structure Chart
Exhibit “H”
Los Azules Project
List of Properties:
| |
Name | |
Docket Number |
1. | |
Azul
1 | |
520-0279-M98 |
2. | |
Azul
2 | |
520-0280-M98 |
3. | |
Mirta | |
1124.0141-M-09 |
4. | |
Escorpio
II | |
0154-F28-C-96 |
5. | |
Azul
3 | |
1124.0121-A-06 |
6. | |
Azul
Este | |
1124.186-A-07 |
7. | |
Azul
Norte | |
1124.668-M-07 |
8. | |
Azul
4 | |
1124.473-M-08 |
9. | |
Escorpio
I | |
1124.0153-C-1996 |
10. | |
Escorpio
III | |
0155-C-96 |
11. | |
Escorpio
IV | |
425.213-C-2003 |
12. | |
Totora | |
414.1324-C-05 |
13. | |
Totora
II | |
520.0496-C-99 |
14. | |
Mercedes | |
0644-M-96 |
15. | |
Sofia | |
1124.167-A-10 |
16. | |
Azul
5 | |
1124.119-A-09 |
17. | |
Marcela | |
1124.495-A-09 |
18. | |
Agostina | |
1124.108-A-10 |
19. | |
Rosario | |
1124.169-A-10 |
20. | |
Gina | |
1124.168-A-10 |
21. | |
Cecilia | |
1124.035-A-12 |
22. | |
Grupo
Minero | |
1124.553-A-2018 |
23. | |
Road
easement for Mercedes mine | |
520-0439-97 |
24. | |
Southern
Access Road Easement for Mercedes mine | |
520-0680-M-96 |
25. | |
Northern
Access Road Easement for Azul 1 and Azul 2 mines | |
1124.218-A-
2018 |
26. | |
Power
Line Easement | |
1124-354-A-2018 |
27. | |
Camp
Easement “Candadito” | |
1124.660-M-12 |
28. | |
Occupation
Easement “Campo Illanes Mery” | |
1124.544-2022 |
29. | |
“Campo
Estomonte” Easement | |
1124.231-A-2010 |
30. | |
“Cortez Monroy Ranch”, which is a real estate property of 18,000 hectares that ACM acquired from CCM S.A, by means of public deed dated March 3, 2010. The Cortez Monroy Ranch is located in Calingasta Department and would overlap with the following ACM Mines: “Escorpio IV”, “Mercedes”, “Azul 1”, “Mirta” and “Azul 2” and partially with the ACM Mines “Totora I”, “Totora II”, “Escorpio I”, “Escorpio II” “Azul Este” and “Azul Norte |
Map:
Exhibit 99.4
AMENDMENT NO. 2 TO
INVESTOR RIGHTS AGREEMENT
THIS AMENDMENT NO. 2
TO THE INVESTOR RIGHTS AGREEMENT is made as of October 10, 2023 among FCA Argentina S.A., a corporation existing under the laws of Argentina
(the “Investor”), McEwen Copper Inc., a corporation existing under the laws of the Province of Alberta (the “Corporation”),
McEwen Mining Inc., a corporation existing under the laws of the State of Colorado (“McEwen Mining”), Minera Andes
Inc. (“Minera Andes”), a corporation existing under the laws of the Province of Alberta, and Robert R. McEwen, an
individual acting in his personal capacity (“Robert R. McEwen”) (collectively, the “Parties”).
WHEREAS
the Parties are party to an investor rights agreement dated February 24, 2023, as amended by the amendment No. 1 dated as of March
10, 2023 (the “IRA”), and the Parties have agreed to additional rights and obligations and now desire to amend the
terms of the IRA to reflect such agreement;
AND WHEREAS, Section 8.12
of the IRA provides that the IRA may be amended by agreement in writing by each of the Parties;
NOW THEREFORE, in
consideration of the mutual covenants and agreements contained in this Amendment No. 2 and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged), the parties hereto covenant and agree as follows:
(1) Section 4.01(3) of the IRA shall be deleted in its entirety.
(2) This Amendment No. 2 is hereby incorporated in and shall form part of the IRA. The IRA as amended by this Amendment No. 2 shall constitute one agreement and shall continue in full force and effect subject to this Amendment No. 2, and the IRA as so amended is hereby ratified and confirmed by the parties hereto.
(3) This Amendment No. 2 shall be governed by and construed in accordance with the laws of the Province of Ontario (without giving effect to any conflict of laws principles thereunder) and the federal laws of Canada applicable therein.
(4) The Parties acknowledge that they have entered into this Amendment No. 2 willingly with full knowledge of the obligations imposed by the terms of this Amendment No. 2. Further, the Parties acknowledge that they have been afforded the opportunity to obtain independent legal advice and confirm by the execution of this Amendment No. 2 that they have either done so or waived their right to do so, and agree that this Amendment No. 2 constitutes a binding legal obligation and that they are estopped from raising any claim on the basis that they have not obtained such advice.
(5) This Amendment No. 2 may be executed in any number of counterparts, and it shall not be necessary that the signatures of all parties hereto be contained on any counterpart. Each counterpart shall be deemed an original, but all counterparts together shall constitute one and the same instrument. Counterparts may be delivered by electronic transmission and the parties hereto adopt any signatures so received as original signatures of the parties hereto.
[Signature Page Follows]
IN WITNESS WHEREOF the Parties hereto have duly
executed this Amendment No. 2 as of the date and year first above written.
|
McEwen Copper Inc. |
|
|
|
Per: |
/s/ Robert McEwen |
|
|
Authorized Signatory |
|
McEwen Mining Inc. |
|
|
|
Per: |
/s/ Robert McEwen |
|
|
Authorized Signatory |
|
MINERA ANDES INC. |
|
|
|
Per: |
/s/ Robert McEwen |
|
|
Authorized Signatory |
|
|
|
|
|
/s/ Robert McEwen |
|
|
Robert R. McEwen |
|
FCA ARGENTINA S.A. |
|
|
|
Per: |
/s/ Francisco Bellucci |
|
|
Authorized Signatory |
|
Per: |
/s/ German Federico |
|
|
Authorized Signatory |
Exhibit 99.5
October 10, 2023
Via Electronic Mail
Messrs.
FCA Argentina S.A.
Carlos María della Paolera 265, 22nd floor
City of Buenos Aires
Republic of Argentina
Attention: Francisco Bellucci and Matheus Rocha
Email:
francisco.bellucci@stellantis.com and matheus.rocha@stellantis.com
Re: CCC Offer No. 2/2023
Dear Sirs,
ANDES
CORPORACIÓN MINERA S.A., a company duly organized and existing under the laws of the Republic of Argentina, with its
legal domicile at Perú 930, 2nd floor of the City of Mendoza (the “Seller”) is pleased to submit
this irrevocable offer to FCA ARGENTINA S.A., a company duly organized and existing under the laws of the Republic of Argentina,
with its legal domicile at Carlos María della Paolera 265, 22nd floor, City of Buenos Aires (“Stellantis”,
and together with the Seller, the “Parties”, and each a “Party”) to enter into an amendment to the
CCCPRA (as defined in Annex I), subject to the terms and conditions set forth in Annex I attached hereto (the “Offer”).
This Offer will be valid for a term of five (5) business
days from the date hereof (the “Validity Term”), and shall be considered accepted by Stellantis only if the Seller
receives within the Validity Term from Stellantis a letter expressly accepting this Offer.
Any term, condition, statement, representation
or guarantee expressed in this Offer which may indicate an assertion, abstention, commitment and/or general right or obligation –
whatever the grammatical form may be – shall only be enforceable and valid for the Parties if this Offer is accepted pursuant to
the terms hereof. If this Offer is not accepted, such term, condition, statement, representation and/or guarantee shall not be valid or
enforceable and shall not cause any legal commitment since they shall be deemed as if they had not been written.
Upon acceptance of this Offer by Stellantis, in
accordance with the procedure set forth above, the amendment to the CCCPRA (the amendment being referred to herein as the “Agreement”)
shall enter into force between the Parties and shall be governed by the terms and conditions hereby attached as Annex I as of the
date on which the acceptance is received by the Seller (the “Effective Date”).
This Offer will be governed in accordance with
the laws of the State of New York.
Sincerely,
Andes
Corporación Minera S.A.
/s/ Robert McEwen | | |
Name: Robert McEwen | | |
Title: Authorized Signatory | | |
I have the authority to bind the company
ANNEX I
TERMS AND CONDITIONS
WHEREAS
by CCC Offer No. 1/2023 issued by the Seller on February 23, 2023 and accepted by Stellantis on February 24, 2023, the
Parties entered into a copper cathodes and concentrates purchase rights agreement (the “CCCPRA”);
AND
WHEREAS capitalized terms used and not otherwise defined herein have the meanings given to them in the CCCPRA;
AND
WHEREAS the Seller is an indirect wholly owned subsidiary of McEwen Copper Inc. (“MCI”);
AND
WHEREAS pursuant to a subscription agreement (the “Subscription Agreement”) dated on or about the date hereof
between Stellantis and MCI, Stellantis has agreed to subscribe for, and MCI has agreed to issue to Stellantis, 1,900,000 common shares
of MCI;
AND
WHEREAS it is a condition to the closing of the transactions contemplated in the Subscription Agreement that the Seller issue
the Offer to Stellantis, and the Parties wish to enter into this Agreement to set forth certain amendments to the CCCPRA;
NOW
THEREFORE, in consideration of the mutual covenants and agreements of the Parties hereinafter contained and other good and
valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each Party) if the Offer is accepted in accordance
with the procedure set forth in the main body of the Offer, the following Terms and Conditions of the Agreement shall enter into force
as of the Effective Date.
| 1. | The CCCPRA remains in full force and effect, and is hereby ratified and confirmed in all respects as amended
hereby. Except as expressly provided in this Agreement, no terms and conditions of the CCCPRA are hereby amended, modified, supplemented
or waived. From the Effective Date, the CCCPRA and this Agreement shall be read together to the extent reasonably possible as though all
of the terms of both documents were contained in one instrument. |
| 2. | Section 1 is hereby deleted and replaced as follows: |
“1. Option
Grant: For the sum of ten (10) United States Dollars and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Seller hereby irrevocably grants to Stellantis and its affiliates (collectively, the “Stellantis
Group”) the option (the “Option”) to acquire and receive from the Seller, and the Seller agrees, if the Option
is exercised, to sell and deliver to each Stellantis Buyer (as defined herein) copper cathodes (“Cathodes”) and copper
concentrates (“Concentrates”) in such amounts as are described in Sections 3 and 3.1, produced by the Seller from the
Project, free and clear of any mortgages, charges, assignments, pledges, security interests, liens or other encumbrances or adverse claims
of any nature or kind securing any obligation of any person (“Encumbrances”), on and subject to the terms and conditions
set forth herein. The “Project” means the Los Azules project located in the Province of San Juan, Argentina, which
is comprised of the mining and mineral processing operations on or in the vicinity of the mining rights listed in, and the map set out
in, Schedule A hereto. The Parties acknowledge and agree that Stellantis holds the benefits and rights under this Agreement, including
the right to exercise the Option, for and on behalf of itself and the other members of the Stellantis Group.
| 3. | Section 2.2 is hereby deleted and replaced as follows: |
“2.2. At
any time during the Option Period, Stellantis may exercise the Option by providing written notice (the “Option Exercise Notice”)
to the Seller.
Upon receipt of the Option Exercise Notice, the
Parties shall negotiate in good faith the terms and conditions of a definitive copper offtake agreement or agreements (the “Definitive
Agreements”, and such term shall include the singular and plural), which will incorporate the Cathodes and Concentrates purchase
rights of the Stellantis Group described herein, to be executed by the Seller and Stellantis (or another company in the Stellantis Group
designated by Stellantis) within the following ninety (90) day period. The “Stellantis Buyer” means any company in
the Stellantis Group designated by Stellantis from time to time as purchaser of Cathodes or Concentrates under the Definitive Agreements.
| 4. | A new Section 3.1 is hereby added as follows: |
“3.1 (a) Notwithstanding
Stellantis’ Ownership Percentage and any other provision to the contrary herein, subject to Stellantis’ compliance with Section 3.2,
the Stellantis Buyer shall have the right (the “Minimum Cathodes Offtake Right”) under the Definitive Agreements to
elect, in respect of each calendar year, to purchase 10,000 tonnes of Cathodes (or a lesser amount, at the Stellantis Buyer’s election)
produced from the Project; provided that the total production of Cathodes during such calendar year from the Project is projected by the
Seller (acting in good faith) to be at least 25,000 tonnes; provided, further, that, if the Seller projects less than 25,000 tonnes of
Cathodes production for a year, then the Stellantis Buyer shall have the right to purchase an amount equal to 40% of the projected Cathodes
production (the “Adjusted Amount”) (or a lesser amount, at the Stellantis Buyer’s election) during such year;
and if the actual Cathodes production for such year exceeds 25,000 tonnes, then an amount equal to 10,000 tonnes of Cathodes less the
Adjusted Amount shall be carried forward in the form of a purchase right (and not a purchase obligation) to subsequent year(s) (the
“Carried-Forward Tonnage”) in a manner to be agreed by the Parties, each acting in good faith, and included in the
Definitive Agreements (and such Carried-Forward Tonnage purchase right shall be in addition to any other Cathodes or Concentrates purchase
rights in this Article 3).
(b) For the avoidance of doubt, the Minimum
Cathodes Offtake Right shall not be linked in any respect to Stellantis’ Ownership Percentage (i.e., if, based on Stellantis’
then Ownership Percentage and the other purchase rights in this Article 3, Stellantis would have the right to purchase 7,500 tonnes
of Cathodes in the applicable year, Stellantis shall, as a result of the application of this Section 3.1, have the right to purchase
10,000 tonnes of Cathodes (or a lesser amount, at the Stellantis Buyer’s election) during such year, on and subject to the other
terms and conditions in this Section 3.1). For the further avoidance of doubt, any Cathodes purchased by the Stellantis Buyer pursuant
to the Minimum Cathodes Offtake Right (except for Carried Forward Tonnage, as applicable) shall be included when determining: (i) quantity
limits imposed in respect of other purchase rights under this Article 3, and (ii) the amount of annual Cathodes production from
the Project in the relevant calendar year. Finally, for the yet further avoidance of doubt, for so long as this Section 3.1 remains
in effect, the Stellantis Buyer shall always have the right to purchase the greater of (x) the amount of Cathodes permitted under
this Section 3.1 and (y) the amount of Cathodes permitted under this Article 3 based on its Ownership Percentage.”
| 5. | A new Section 3.2 is hereby added as follows: |
“3.2 In
consideration of the benefit that the Minimum Cathodes Offtake Right will confer upon Stellantis, which right is conditional upon Stellantis’
compliance with this Section 3.2, Stellantis will not, without the prior consent of McEwen Copper Inc. (“MCI”),
from the Effective Date until [Insert date that is 10 years after closing date] (the “Limitation Period”): (i) offer,
sell, contract to sell, pledge, transfer, assign or otherwise dispose of (including, without limitation, by making any short sale, engage
in any hedging, monetization or derivative transaction), or (ii) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of common or any other securities of MCI that are substantially similar
to common shares, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to purchase,
the foregoing, whether any such transaction is to be settled by delivery of common shares of MCI or such other securities, in cash or
otherwise in respect of, any common shares of MCI which have been issued, sold or otherwise transferred to Stellantis by MCI from
time to time (the “Affected Securities”).
The above paragraph shall not apply to, and for
certainty Stellantis shall not require the prior consent of MCI to: (a) sell or transfer any of the Affected Securities to any other
company in the Stellantis Group provided the transferee thereof agrees in writing to be bound by the terms of this Section 3.2 for
the remainder of the Limitation Period; or (b) sell any of the Affected Securities pursuant to a bona fide take-over bid or similar
transaction made to all holders of MCI’s common shares, including, without limitation, a merger, business combination, share exchange,
arrangement or amalgamation, involving a change of control of MCI and provided that, in the event such transaction is not completed, the
Affected Securities shall remain subject to the restrictions contained in this Section 3.2.
In the event that Stellantis completes a sale
of Affected Securities during the Limitation Period, except for any sale pursuant to an exemption described in the paragraph above, Stellantis
shall give written notice to the Seller within 10 days thereafter referencing this Section 3.2 and confirming such non-exempt sale
of Affected Securities has occurred, following which Section 3.1 shall be deemed to be terminated permanently. For the avoidance
of doubt, the consequences of Stellantis breaching any of its obligations under this Section 3.2 shall be limited to the termination
of Section 3.1 and neither MCI nor the Seller shall have any other remedy or recourse against Stellantis or any other company in
the Stellantis Group as a result thereof. For the avoidance of doubt, other than termination of Section 3.1, any breach of this Section 3.2
by Stellantis shall not result in the termination of any provision or any rights of Stellantis under this Agreement or under the Definitive
Agreements, and such Agreements shall otherwise continue in full force and effect (i.e., if Stellantis completes a non-exempt sale of
Affected Securities during the Limitation Period, then Stellantis shall nonetheless retain the right to purchase up to an amount of Cathodes
and/or Concentrates (or a combination thereof) produced from the Project based on its then Ownership Interest, as described more fully
in this Article 3).”
| 6. | A new Section 4.1 is hereby added as follows: |
“4.1 Without
limiting any other provision in this Article 4 (including but not limited to the requirement that purchase prices in the Definitive
Agreements be no less favorable to the Stellantis Buyer than the most favorable prices (for a purchaser’s perspective) that the
Seller has agreed with any other party), the Definitive Agreements shall include an option for the Stellantis Buyer to elect, in respect
of London Metal Exchange (LME) Grade “A” Cathodes (or such other equivalent grade of Cathodes as may be produced from the
Project, from time to time), to:
| (a) | price Cathode deliveries at the average daily closing price
on the LME during the 30- calendar days prior to the delivery date (“First Quotational Period”);
or |
| (b) | price Cathode deliveries at the average daily closing price
on the LME during the 30- calendar days after the delivery date (“Second Quotational Period”), |
provided that the Stellantis Buyer must
make the election to use the First Quotational Period or Second Quotation Period at least two business days prior to payment, such payment
to be due 30 days from the delivery date.”
| 7. | A new Section 13 is hereby added as follows: |
“13. Amendment:
This Agreement may only be amended by the written agreement of all the Parties or, as applicable, their permitted successors and assigns.”
| 8. | A new Section 14 is hereby added as follows: |
“14. Notice:
| (a) | All notices and other required or permitted communications (each a “Notice”) to a Party shall be in writing, and
shall be addressed respectively as follows: |
(i) If to the Seller:
Perú 930, 2nd floor
City of Mendoza
Republic of Argentina
Attention: General Counsel
E-mail: notice@mcewenmining.com
(ii) If to Stellantis:
Carlos María della Paolera 265, 22nd
floor
City of Buenos Aires
Republic of Argentina
Attention: Francisco Bellucci and Matheus Rocha
Email:
francisco.bellucci@stellantis.com and matheus.rocha@stellantis.com
and a copy to:
McCarthy Tétrault LLP
Suite 2400 – 745 Thurlow Street
Vancouver, B.C. V6E 0C5
Attention:
Shawn Doyle
Email: sdoyle@mccarthy.ca
| (b) | All Notices shall be given: |
| (ii) | by electronic communication, capable of producing a printed transmission; |
| (iii) | by registered or certified mail return receipt requested; or |
| (iv) | by overnight or other express courier service. |
| (c) | All Notices shall be effective and shall be deemed given on the date of receipt at the principal address
if received during normal business hours on a business day in the jurisdiction of the recipient, and, if not received during normal business
hours, on the next business day in the jurisdiction of the recipient following receipt, or if by electronic communication, on the date
of such communication if received by the recipient during normal business hours on a business day in the jurisdiction of the recipient,
and, if not received during normal business hours, on the next business day in the jurisdiction of the recipient following receipt. Any
change of address may be made by Notice to the other Parties. |
| 9. | Schedule B of the CCCPRA is hereby deleted. |
| 10. | This Agreement shall be governed by and construed in accordance with the laws of the State of New York
(without giving effect to any conflict of laws principles thereunder). |
[Remainder of page has been intentionally
left blank.]
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