FINDER'S FEE AGREEMENT
THIS AGREEMENT made effective the 25th day of June, 1999.
BETWEEN:
BIRCH MOUNTAIN RESOURCES LTD.
Xxxxx 0000, 000 - 0xxxx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx, X0X 0X0
(the "Corporation")
- and -
AMERICAN PRECIOUS METALS, INC.
000 Xxxxxxxxx Xxxxxx, Xxxx
Xxx Xxxxxx, 00000
(the "Finder")
WHEREAS the Finder has introduced the Corporation to several individuals or
companies purporting to have methods to accurately determine the precious metal
content of materials supplied by the Corporation:
AND WHEREAS the Finder is not an insider nor an associate of an insider of
the Corporation, nor a control person of the Corporation, as those terms are
defined in the Securities Act (Alberta), nor will it become an insider, an
associate of an insider or a control person of the Corporation upon the payment
of the Fee (as hereinafter defined);
NOW THEREFORE THIS AGREEMENT WITNESSES THAT in consideration of the
covenants and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties. hereto agree as follows:
ARTICLE I
INTERPRETATION
1.1 For the purposes of this Agreement, including the recitals and any
amendment hereto, the following~owing words and phrases shall have the
following meanings:
1. "Agreement" means this agreement,all schedules hereto and any amendment
thereof from time to time;
2. "Assay Procedure" means a proprietary assay or analytical procedure
that is used by the Corporation and approved by the Exchange;
c. "Exchange" means The Alberta Stock Exchange;
4. "Parties" means each of the Corporation and the Finder and "Party"
means either one of them;
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5. "Third Party" means: (i) an individual, (ii) a partnership, (iii) a
corporation, (iv) an incorporated or unincorporated association, (v) an
incorporated or unincorporated syndicate or.. (vi). another
incorporated or unincorporated organization that is introduced directly
by the Finder to the Corporation, and, without limiting the generality
of the foregoing, excludes the persons and companies listed in Schedule
"B" to this Agreement.
1.2 The headings of the Articles of this Agreement are inserted for
convenience of reference only and shall not in any manner affect the
construction or meaning of anything herein contained or govern the
rights or liabilities of the parties hereto.
1.3 Words importing the singular number only shall include the plural and
vice versa and words of gender shall entail all genders, including the
neuter gender and words importing persons shall include companies,
corporations, partnerships, syndicates, trusts and any number or
aggregate of persons.
ARTICLE II
ACKNOWLEDGMENTS
2.1 The Finder acknowledges that the Corporation is continuing to deal with
individuals, partnerships, corporations, incorporated or unincorporated
associations, incorporated or unincorporated syndicates or other
incorporated or unincorporated organizations who are not a third Party
who are investigating assay and production development methods.
2.2 The Finder further acknowledges that the Corporation will be under no
obligation to pay a Fee to the Finder for an Assay Procedure of a party
other than a Third Party.
ARTICLE Ill
PAYMENT OF FINDER'S FEE
3.1 In consideration of the Finder introducing the Corporation to a Third
Party or Parties which have or are instrumental in developing an Assay
Procedure, the Corporation shall pay the Finder the Fee.
3.2 The Fee shall be equal to:
500,000 common shares in the capital of the Corporation or such
lessor number as may be permitted under the policies of the Exchange,
which shall be issued to the Finder on the following conditions:
70% of the Fee (350,000 common shares) shall be issued to Finder in
consideration of introductions to Third Parties who have materially advanced
the research and or development of the Corporation in its own efforts to
develop an Assay Procedure including the acquisition of data and complementary
processes previously unknown to the Corporation or proprietary to such Third
Party; and
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30% of the Fee (150,000 common shares) shall be issued to the Finder upon a
Proprietary Assay Procedure reliably confirming concentrations of precious
metals in Birch Mountain's Athabasca Project rock equal to or greater than 1
gram per tonne, the validity of which concentration is verified by the
Corporation, to its sole satisfaction, at a laboratory of its choice, and if
applicable, the negotiation of a satisfactory commercial arrangement with the
Third Party owner of the Assay Procedure on terms consistent with industry
practice and standards; or
c. 30% of the Fee (150,000 common shares) shall be issued to the Finder
upon the President of the Corporation, Xxxxxxx Xxxx, determining, in
Xxxx'x sole and exclusive discretion, that the introductions of the
Party have substantially and materially contributed to the development
by the Corporation of a Proprietary Assay Procedure conforming with the
provisions of sub-paragraph b. above. For greater certainty,
substantial and material contribution must be such that without such
contribution the Corporation would not have been able to develop a
Proprietary Assay Procedure.
3.3 Notwithstanding the foregoing, the payment of the Fee to the Finder is
also subject to the issuance of common shares to the Finder being
exempt from the prospectus and registration requirements of the
applicable securities laws, and to approval by the Exchange, by all
other regulatory bodies having jurisdiction and by the shareholders of
the Corporation, if required.
ARTICLE IV
NOTICES
4.1 Any notice required or permitted to be given hereunder shall be in
writing and shall be deemed to have been given or made when delivered
at the addresses of the relevant party set forth below or such other
address as a party may stipulate in writing:
to the Corporation at: To the Finder at:
3100, 000 - 0xx Xxxxxx X.X. 000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx Xxxx, Xxx Xxxxxx
X0X 0X0 07644
Attention: President Attention: President
ARTICLE V
GENERAL
5.1 All information relating to this Agreement shall be treated as
confidential and no public disclosure by either party will be made
without the prior approval of the provider of such information, except
disclosure required to be made to any regulatory authority, including
the Exchange, the Alberta Securities Commission and the British
Columbia Securities Commission.
5.2 Each party shall be responsible for the payment of all their respective
legal fees incurred in connection with this Agreement.
5.3 Each party hereto will execute and deliver all documents as shall be
reasonably required in order to fully perform and carry out the terms
of this Agreement.
5.4 Time shall be of the essence with respect to the terms and conditions
6f this Agreement.
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5.5 If one or more of the provisions contained herein shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision or
provisions had never been contained herein.
5.6 It is understood that the terms and conditions of this Agreement
supercede any previous verbal or written agreement between the Finder
and the Corporation and there exist no other representations, covenants
or agreements as between the Finder and the Corporation whatsoever.
5.7 This Agreement may be executed in several counterparts and may be
represented by facsimile, each of which so executed shall be deemed to
be an original, and such counterparts together shall constitute one and
the same instrument and notwithstanding their date of execution, shall
be deemed to bear the date as of the date above written.
5.8 This Agreement shall be construed and interpreted, and the rights and
obligations of the parties .arising hereunder governed, by me laws: of
the Province of Alberta. The parties agr6e that the Court of Alberta
shall have exclusive jurisdiction over any dispute, termination or
breach of any kind or nature whatsoever arising out of or in connection
with this Agreement.
5.9 The execution and delivery of this Agreement by the Corporation and by
the Finder is subject to approval of the board of directors of both
parties and all necessary regulatory approvals. The Corporation agrees
to use it best efforts to obtain or cause to be obtained all necessary
regulatory approvals for this Agreement.
All the terms and provisions of this Agreement shall be binding upon, shall
enure to the benefit of, and shall be enforceable by and against the parties
hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF the parties hereby have executed this Finder's Fee
Agreement effective as of the date first above written as witnessed by their
signatures.
BIRCH MOUNTAIN RESOURCES LTD. AMERICAN PRECIOUS METALS, INC.
Per:/s/ Xxxxxxx Xxxx Per:/s/ Xxxx Xxxxxxx
---------------- ----------------
Xxxxxxx Xxxx, President Xxxx Xxxxxxx, President
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