TO TERMINATE THIS
AGREEMENT PURSUANT TO SECTION 9.1 SHALL GIVE NOTICE OF SUCH TERMINATION TO THE
OTHER PARTIES TO THIS AGREEMENT.
9.3.
EFFECT OF TERMINATION.
IN THE EVENT THAT THIS AGREEMENT SHALL BE
TERMINATED PURSUANT TO THIS ARTICLE IX, ALL FURTHER OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT (OTHER THAN SECTIONS 11.7 (GOVERNING LAW), 11.8 (SUBMISSION
TO JURISDICTION), 11.9 (CONFIDENTIALITY), AND 11.11 (EXPENSES),) SHALL BE
TERMINATED WITHOUT FURTHER LIABILITY OF ANY PARTY TO THE OTHER; PROVIDED, THAT
NOTHING HEREIN SHALL RELIEVE ANY PARTY FROM LIABILITY FOR ITS WILLFUL BREACH OF
THIS AGREEMENT.
ARTICLE X
DEFINITIONS AND INTERPRETATION
10.1.
DEFINITIONS.
IN THIS AGREEMENT, THE FOLLOWING TERMS HAVE THE
MEANINGS SPECIFIED OR REFERRED TO IN THIS SECTION 10.1 AND SHALL BE EQUALLY
APPLICABLE TO BOTH THE SINGULAR AND PLURAL FORMS.
"Acceptance Notice" has the meaning specified in Section 5.5.
"Affiliate" means, with respect to any Person, any other Person that directly or
indirectly controls, is controlled by or is under common control with such
Person.
"Agreement" has the meaning specified in the preamble.
"Anti-Dilution Golden Minerals Shares" has the meaning specified in Section 5.1.
"Business Day" means a day (other than Saturday or Sunday) on which banks
generally are open in Toronto, Canada and Denver, Colorado for the conduct of
substantially all of their activities.
"Buyer" has the meaning specified in the preamble.
"Closing" means the closing of the transfer of the MEQ Shares and the Golden
Minerals Shares and the issuance of the Golden Minerals Warrant.
"Closing Date" has the meaning specified in Section 2.1.
"Common Stock" has the meaning specified in Section 1.2(a).
"Company" has the meaning specified in the preamble.
"Dilutive Issuance" has the meaning specified in Section 5.1.
"Encumbrance" means any lien (statutory or other), claim, charge, security
interest, mortgage, deed of trust, pledge, hypothecation, assignment,
conditional sale or other title retention agreement, preference, priority or
other security agreement or preferential arrangement of any kind
15
or nature, and any easement, encroachment, covenant, restriction, right of way,
defect in title or other encumbrance of any kind.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, together
with the rules and regulations promulgated thereunder.
"Exempt Golden Minerals Transaction" means any of the following transactions:
(A)
THE AWARD, ISSUANCE OR EXERCISE OF ANY BONA FIDE EQUITY INCENTIVE
SECURITIES OR EQUITY COMPENSATION SECURITIES IN FAVOR OF DIRECTORS, OFFICERS,
EMPLOYEES, CONSULTANTS OR SERVICE PROVIDERS OF GOLDEN MINERALS OR ANY OF ITS
AFFILIATES PURSUANT TO GOLDEN MINERALS' 2009 EQUITY INCENTIVE PLAN OR ANY OTHER
BONA FIDE EQUITY INCENTIVE PLAN ADOPTED BY GOLDEN MINERALS FROM TIME TO TIME;
(B)
THE EXERCISE OF THE GOLDEN MINERALS WARRANT;
(C)
ANY ISSUANCE OF COMMON STOCK (OR SECURITIES OF GOLDEN MINERALS WHICH
ARE CONVERTIBLE INTO, EXCHANGEABLE FOR OR EXERCISABLE TO ACQUIRE COMMON STOCK),
WHICH IS MADE TO ALL HOLDERS OF COMMON STOCK ON A PRO RATA BASIS;
(D)
ANY ISSUANCE OF COMMON STOCK IN CONNECTION WITH (I) A STATUTORY MERGER,
CONSOLIDATION, SHARE-FOR-SHARE EXCHANGE, TAKEOVER BID, TENDER OFFER, OR SIMILAR
PLAN OR ACQUISITION IN WHICH SHARES