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OPTION AGREEMENT
THIS AGREEMENT is made between CROSS CREEK FINANCE GROUP LTD., a corporation
organized under the laws of the Province of British Columbia ("Cross Creek")
and OERI FINANCE INC., a corporation organized under the laws of Switzerland
("Oeri").
In consideration of the covenants and agreements contained herein and the
payment of $1.00 by each party hereto to the other and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1 INTERPRETATION
1.1 Definitions
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In this Agreement, unless the context otherwise requires, the following
words and expressions shall have the following meanings:
(a) "Call" means Oeri's right to require Cross Creek to sell the
Hariston Shares to Oeri at the Call Price pursuant to Section 2.1 of
this Agreement;
(b) "Call Period" means the 15 day period of time commencing 365 days
after the date of this Agreement;
(c) "Call Price" means $45,000;
(d) "Hariston" means Hariston Corporation, a corporation organized under
the laws of Canada and whose shares are quoted on the OTC;
(e) "Hariston Shares" means the 300,000 common shares of Hariston owned
by Cross Creek;
(f) "OTC" means the NASD over-the-counter market in the United States;
(g) "Put" means Cross Creek's right to require Oeri to purchase the
Hariston Shares from Cross Creek at the Put Price pursuant to
Section 3.1 of this Agreement;
(h) "Put Period" means the 15 day period of time commencing 380 days
after the date of this Agreement;
(i) "Put Price" means $45,000; and
(j) "Termination Time" means 4:00 p.m. (Vancouver time) on the last day
of the Put Period or Call Period.
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1.2 Sections and Headings
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The division of this Agreement into Sections and the insertion of
headings are for the convenience of reference only and shall not affect
the construction or interpretation of this Agreement. The terms "this
Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular Section or other portion hereof and
include any agreement or instrument supplemental or ancillary hereto.
Unless something in the subject matter or context is inconsistent
therewith, references herein to Sections are to Sections of this
Agreement.
1.3 Extended Meanings
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Words importing the singular number only shall include the plural and
vice versa and words importing gender shall include masculine, feminine
and neuter genders.
1.4 United States Dollars
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Unless otherwise provided herein, all monetary amounts set forth in this
Agreement are in United States dollars.
2 CALL OPTION
2.1 Subject to the terms and conditions of this Agreement, Cross Creek
hereby grants to Oeri the right, exercisable at any time during the Call
Period and prior to the Termination Time, to require Cross Creek to sell
to Oeri all, but not less than all, of the Hariston Shares at the Call
Price.
2.2 The Call shall be exercised by Oeri giving notice in writing to Cross
Creek as provided herein exercising the Call (the "Call Exercise
Notice").
2.3 Subject to the terms of this Agreement, upon the exercise of the Call,
the Call Exercise Notice and this Agreement shall constitute a binding
agreement of purchase and sale between Oeri and Cross Creek regarding
the Hariston Shares.
2.4 The sale and purchase of the Hariston Shares hereunder shall be
completed on the following terms and conditions:
(a) the purchase price payable for the Hariston Shares shall be the Call
Price;
(b) the completion of the transaction shall take place five days after
the date on which Oeri delivered the Call Exercise Notice (the "Call
Closing Date");
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(c) on the Call Closing Date, Cross Creek shall deliver the Hariston
Shares to Oeri by providing a confirmation verifying that all of the
Hariston Shares have been electronically transferred by Cross Creek
and are on deposit in the account of Oeri;
(d) Oeri shall deposit the Call Price in trust with its solicitor on or
prior to the Call Closing Date and shall provide its solicitor,
prior to Cross Creek transferring the Hariston Shares, with an
irrevocable direction to pay the Call Price to Cross Creek (in the
form attached hereto as Schedule "A"), in accordance with Cross
Creek's wiring instructions, upon receiving confirmation from Cross
Creek or Oeri verifying that all of the Hariston Shares have been
deposited in the account of Oeri; and
(e) at the time of transfer, the Hariston Shares shall be free and clear
of any liens, mortgages, charges and encumbrances whatsoever and
Cross Creek shall have good and marketable title thereto.
3 PUT OPTION
3.1 Subject to the terms and conditions of this Agreement, Oeri hereby
grants to Cross Creek the right, exercisable at any time during the Put
Period and prior to the Termination Time, to require Oeri to purchase
from Cross Creek all, but not less than all, of the Hariston Shares for
the Put Price.
3.2 The Put shall be exercised by Cross Creek giving notice in writing to
Oeri as provided herein exercising the Put (the "Put Exercise Notice").
3.3 Subject to the terms of this Agreement, upon the exercise of the Put,
the Put Exercise Notice and this Agreement shall constitute a binding
agreement of purchase and sale between Oeri and Cross Creek regarding
the Hariston Shares.
3.4 The sale and purchase of the Hariston Shares pursuant to the Put shall
be completed on the following terms and conditions:
(a) the purchase price payable by Oeri for the Hariston Shares shall be
the Put Price;
(b) the completion of the transaction shall take place five days after
the date on which Cross Creek delivered the Put Exercise Notice to
Oeri (the "Put Closing Date").
(c) on the Put Closing Date, Cross Creek shall deliver the Hariston
Shares to Oeri by providing a confirmation verifying that all of the
Hariston Shares have been electronically transferred by Cross Creek
and are on deposit in the account of Oeri;
(d) Oeri shall deposit the Put Price in trust with its solicitor on or
prior to the Put Closing Date and shall provide its solicitor, prior
to Cross Creek transferring the Hariston Shares, with an irrevocable
direction to pay the Put Price to Cross Creek (in the form
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attached hereto as Schedule "A"), in accordance with Cross Creek's
wiring instructions, upon receiving confirmation from Cross Creek or
Oeri verifying that all of the Hariston Shares have been deposited
in the account of Oeri; and
(e) at the time of transfer, the Hariston Shares shall be free and clear
of any liens, mortgages, charges and encumbrances whatsoever and
Cross Creek shall have good and marketable title thereto.
4 DIVISION OR CONSOLIDATION OF SHARES
4.1 If the Hariston Shares are changed by way of being classified or
reclassified, subdivided, consolidated or converted into a different
number or class of shares or otherwise, the Put Price and the Call Price
and the type of security to be delivered to Oeri upon exercise of the
Put or the Call shall be adjusted accordingly, in all cases, so that
Oeri shall receive the same number and type of securities as would have
resulted from such change if the Put or the Call had been exercised
before the date of the change.
5 GENERAL
5.1 Amendments and Waivers
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No modification, variation, amendment or termination by mutual consent
of this Agreement and no waiver of the performance of any of the
responsibilities of any of the parties hereto shall be effected unless
such action is taken in writing and is signed by all parties.
5.2 Severability
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Each of the covenants, provisions, Sections, subsections and other
subdivisions hereof is severable from every other covenant, provision,
Section, subsection and the invalidity or unenforceability of any one
or more covenants, provisions, Sections, subsections or subdivisions of
this Agreement shall not affect the validity or enforceability of the
remaining covenants, provisions, Sections, subsections and subdivisions
hereof.
5.3 Time of Essence
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Time shall be of the essence in this Agreement.
5.4 Notice
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All notices and other communications which are required under this
Agreement shall be in writing and shall be deemed to have been given
when delivered in person, by facsimile or seven (7) days after deposit
by registered mail addressed as follows:
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If to Cross Creek, to:
Cross Creek Finance Group Ltd.
Xxxxx 000, 000 Xxxxx Xxxxxx
Xxxxxxxxx, XX X0X 0X0
Attention: President
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
If to Oeri, to:
Oeri Finance Inc.
Xxxxx Xxxxxx - Xxxxxxx 00
Xxxxx, Xxxxxxxxxxx
CH - 4002
Attention: Xxxxx X. Oeri
Telephone No.: 00-00-000-0000
Telecopier No.: 00-00-000-0000
or to such other address as any party may designate by written notice to
the other party.
5.5 Entire Agreement
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This Agreement constitutes and contains the entire and only agreement
among the parties relating to the matters described herein and
supersedes and cancels any and all previous agreements and
understandings between all or any of the parties relative hereto. There
are no representations, inducements, promises, understandings,
conditions or warranties, either express, implied or statutory, between
the parties other than as expressly set forth in this Agreement.
5.6 Further Assurances
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The parties hereto covenant and agree to execute and deliver all such
further documents and instruments and to do all acts and things as may
be necessary or convenient to carry out the full intent and meaning of
this Agreement.
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5.7 Assignment
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Neither this Agreement nor any of the rights, interests or obligations
hereunder may be assigned by a party without the prior written consent
of the other party.
5.8 Application of Agreement
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This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective heirs, administrators, executors,
successors and permitted assigns.
5.9 Governing Law
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This Agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia and the federal laws of Canada
applicable therein.
5.10 Execution
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This Agreement may be executed in several counterparts and by facsimile,
each of which, when so executed, shall be deemed to be an original, and
such counterparts together shall constitute one and the same instrument.
Dated the 4th day of March, 1998.
OERI FINANCE INC. CROSS CREEK FINANCE GROUP LTD.
By: /s/ Xxxxx X. Oeri By: /s/ Xxx X. Xxxxxxxx
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Name: Xxxxx X. Oeri Name: Xxx X. Xxxxxxxx
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Title: Chairman & CEO Title: President
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SCHEDULE "A"
IRREVOCABLE DIRECTION TO PAY
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TO: [Name of law firm]
FROM: Oeri Finance Inc. (the "Company")
DATE: March *, 1999
RE: Payment of Call Price or Put Price for the purchase of 300,000
common shares of Hariston Corporation (the "Hariston Shares")
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We hereby irrevocably direct you to pay Cross Creek Finance Group Ltd.
("Cross Creek") U.S. $45,000, representing payment in full of the Call Price
or Put Price payable for the Hariston Shares sold by Cross Creek to the
Company pursuant to the Option Agreement between the Company and Cross Creek
dated March 4, 1998, upon receiving confirmation from the Company or Cross
Creek verifying that all of the Hariston Shares have been deposited in the
account of the Company.
DATED March *, 1999.
OERI FINANCE INC.
Per: c/s
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Xxxxx X. Oeri,
President
