OPTION AGREEMENT
THIS AGREEMENT is dated for reference the _____th day of August, 2010.
BETWEEN:
|
XXXXXX XXXXX XXXXXXXX,a businessman having his address at 000-0000 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
|
(the "Optionor")
OF THE FIRST PART
AND
|
0887717 B.C. Ltd., a corporation incorporated under the laws of the Province of British Columbia, with an executive office at 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
|
(the "Optionee")
OF THE SECOND PART
W H E R E A S:
A.
|
The Optionor is the legal and beneficial owner of an undivided interest in the mineral claims (the “Property”, as defined herein) more particularly described in Schedule "A" attached to and made a part of this Agreement;
|
B.
|
The Optionor wishes to grant and the Optionee wishes to acquire the right and option to acquire a One Hundred percent (100%) undivided interest in and to the Property on the terms and subject to the conditions set out in this Agreement.
|
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and of the mutual promises, covenants, conditions, representations and warranties herein set out, the parties hereto agree as follows:
1
1. INTERPRETATION
1.1 For the purposes of this Agreement, including the recitals and any schedules hereto, unless there is something in the subject matter or context inconsistent therewith, the following words and expressions shall have the following meanings:
(a)
|
"Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with the first Person. The term “control” means the ability to direct the management and policies of such Person, whether through ownership of equity, by contract or otherwise.
|
(b)
|
"Commercial Production" means the operation of the Property or any portion thereof as a producing mine and the production of mineral product therefrom (excluding bulk sampling, pilot plant or test operations);
|
(c)
|
"Expenditures" means all expenses, obligations, costs and liabilities of whatever kind or nature spent or incurred directly or indirectly by the operator up to the implementation of the production program, in connection with the exploration and development of the
Property, including, without limiting the generality of the foregoing, moneys expended in maintaining the Property in good standing and in applying for and securing one or more mining leases in respect of the Property, moneys expended in doing and
filing assessment work, expenses paid for or incurred in connection with any program of surface or underground prospecting, exploring, geophysical, geochemical and geological surveying, diamond drilling and trenching, drifting, raising and other underground work, assaying and metallurgical testing and engineering, environmental studies, data preparation and analysis, data processing services, submissions to government agencies with respect to production permits, in acquiring facilities, in making contributions to a contingency fund required by the operator in paying the fees, wages, salaries, traveling expenses, and fringe benefits (whether or not required by law) of all persons engaged in work with respect to and for the benefit of the Property, in paying for the food, lodging and other reasonable needs of such persons.
|
|
Expenditures shall be deemed to be incurred upon the earlier of (a) the date of payment of same; or (b) the date upon which such Expenditures become due and payable pursuant to the applicable contractual obligation;
|
(d)
|
"Mining Work” means every kind of work done on or in respect of the Property or the products therefrom by or under the direction of or on behalf of or for the benefit of a party and, without limiting the generality of the foregoing, includes assessment work, geophysical, geochemical and geological surveying, studies and mapping, investigating, trenching, drilling, designing, examining, equipping, improving, surveying, shaft sinking, raising, crosscutting and drifting, searching for, digging, trucking, sampling, working and procuring minerals, ores, metals and concentrates, surveying and bringing any mineral claims or other interests to lease or patent, reporting and all other work usually considered to be prospecting, exploration, development and mining work;
|
(e)
|
"Option” means the option granted by the Optionor to the Optionee under Section 3.1;
|
(f)
|
“Person” includes any individual, sole proprietorship, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate and a natural person in his or her capacity as trustee, executor, administrator or other legal representative.
|
(g)
|
"Property" means the mineral property interests more particularly described in Schedule "A" hereto, together with all licenses, surface rights, mineral rights, personal property and permits associated therewith, and shall include any renewal thereof and any other form of successor or substitute title thereto; and
|
(h)
|
"Shares" shall have the meaning set out in Subsection 3.1(b).
|
1.2 In this Agreement, all dollar amounts are expressed in Canadian Dollars, unless specifically provided to the contrary.
2
2. REPRESENTATIONS AND WARRANTIES
2.1 Each party represents and warrants to the others that:
(a)
|
it is a company duly incorporated, validly subsisting and in good standing with respect to filing of annual reports under the laws of the jurisdiction of its incorporation and is or will be qualified to do business and to hold an interest in the Property in the Province British Columbia;
|
(b)
|
it has full power and authority to carry on its business and to enter into this Agreement and any agreement or instrument referred to in or contemplated by this Agreement and to carry out and perform all of its obligations and duties hereunder; and
|
(c)
|
it has duly obtained all authorizations for the execution, delivery and performance of this Agreement, and such execution, delivery and performance and the consummation of the transactions herein contemplated will not conflict with, or accelerate the performance required by or result in any breach of any covenants or agreements contained in or constitute a default under, or result in the creation of any encumbrance, lien or charge under the provisions of its constating or initiating documents or any indenture, agreement or other instrument whatsoever to which it is a party or by which it is bound or to which it may be subject and will not contravene any applicable laws.
|
2.2 The Optionor represents and warrants to the Optionee that:
(a)
|
it is the sole legal and beneficial owner of a one hundred percent (100%) undivided interest in the Property;
|
(b)
|
the Property is assignable by the Optionor to the Optionee free and clear of all liens, charges and encumbrances and is not subject to any right, claim or interest of any other person;
|
(c)
|
the Property is in good standing with respect to the filing of annual assessment work (if any), fees and taxes and the Optionor will maintain the Property in good standing until the Property is transferred pursuant to the provisions of Section 4.1;
|
(d)
|
it has complied with all laws in effect in the jurisdiction in which the Property is located with respect to the Property, and such Property has been duly and properly recorded and located in accordance with such laws, and that the Optionee may enter in, under or upon the Property for all purposes of this Agreement without making any payment to, and without accounting to or obtaining the permission of, any other person other than any payment required to be made under this Agreement;
|
(e)
|
there is no adverse claim or challenge against or to the ownership of or title to the Property, or any portion thereof nor is there any basis therefor and there are no outstanding agreements or options to acquire or purchase the Property or any portion thereof or interest therein and no person has any royalty or interest whatsoever in production or profits from the Property or any portion thereof;
|
(f)
|
to the best of its knowledge, conditions on and relating to the Property and operations conducted thereon are in compliance with all applicable laws, regulations or orders relating to environmental matters including, without limitation, waste disposal and storage;
|
(g)
|
there are no outstanding orders or directions relating to environmental matters requiring any work, repairs, construction or capital expenditures with respect to the Property and the conduct of the operations related thereto, nor has it received any notice of the same, and it is not aware of any basis on which any such orders or direction could be made; and
|
(h)
|
it is not aware of any material fact or circumstance which has not been disclosed to the Optionor which should be disclosed in order to prevent the representations and warranties in this Section from being misleading or which may be material in the Optionor’s decision to enter into this Agreement and acquire an interest in the Property.
|
2.3 The representations and warranties hereinbefore set out are conditions on which the parties have relied in entering into this Agreement, are to be construed as both conditions and warranties and shall, regardless of any investigation which may have been made by or on behalf of any party as to the accuracy of such representations and warranties, survive the closing of the transaction contemplated hereby and each of the parties will indemnify and save the other harmless from all loss, damage, costs, actions and suits arising out of or in connection with any breach of any representation or warranty contained in this Agreement, and each party shall be entitled, in addition to any other remedy to which it may be entitled, to set off any such loss, damage or costs suffered by it as a result of any such breach against any payment required to be made by it to any other party hereunder.
3
3. OPTION
3.1 The Optionor hereby irrevocably grants to the Optionee the sole and exclusive right and option to acquire a One Hundred percent (100%) undivided interest in and to the Property (the grant of the Option includes the Optionor’s direct and indirect interests in the licences to explore for minerals on the Property), free and clear of all liens, charges, encumbrances, claims, royalties, rights or interest of any other person save, such Option to be exercisable by the Optionee:
(a)
|
by paying to the Optionor by cheque or wire transfer the sum of Five Thousand Dollars ($5,000) on the date of execution of this Agreement;
|
(b)
|
by incurring not less than Ten Thousand Dollars ($10,000) in Expenditures on the Property prior to September 30, 2010;
|
(c)
|
by paying a sum to the Optionor by cheque or wire transfer the sum of One Thousand Dollars ($1,000) no later than November 30, 2010; and
|
(d)
|
by granting an option to purchase up to ten percent (10%) of the total issued and outstanding shares of the Optionee’s common stock at the total price of $1.00, exercisable upon a probable mineral reserve being discovered on the Property, which option will expire after 36 months from the date of this Agreement.
|
3.2 In the event any option payment or the minimum work requirements for any time period are not met pursuant to Section 3.1, the Option will terminate, subject to the notice provisions of Section 10.1 below, and subject to the following provisions:
(a)
|
If the Expenditures incurred pursuant to Subsection 3.1(b) are less than the stipulated aggregate minimum for the time period specified therein, then the Optionee may, at its sole discretion, continue to exercise the Option by paying the amount of the deficiency to the Optionor within thirty (30) days following the Payment Expiry Date.
|
4. TRANSFER OF PROPERTY
4.1 Upon execution of this Agreement, the Optionor will forthwith deliver to the Optionee’s nominee to hold in trust for the parties in accordance with the terms of this Agreement:
(a)
|
A registerable transfer or transfers of the Licences and exploitation concessions comprising the Property, or such other instrument as may be required pursuant to the laws of the Province of British Columbia to effect such transfer, transferring to the Optionee a one hundred percent (100%) interest therein, subject to the provisions of Subsection 4.1(c), which the Optionee will be entitled to register against the title to those Licences, concessions and Property upon payment of the option price in full; and
|
(b)
|
The transfer and assignment of any option, right of refusal or other claim to the Property held by the Optionor or through the Optionor by any third party, all of which are disclosed in Schedule “B”, to the Optionee or its nominee on the same terms and in good standing, and the Optionee or its nominee will assume all rights and obligations of the Optionor under any such option, right of refusal or other claim to the Licences or Property, from and after the date of execution of this Agreement.
|
(c)
|
Notwithstanding the provisions of Subsections 4.1(a) and (b), the mineral title to the Property will remain registered in the name of the Optionor and the Optionee will not register any transfer of the Licenses and exploration concessions comprising the Property until such time when the Optionee receives a valid Free Miner’s Certificate from the Ministry of Energy, Mines and Petroleum Resources of the Province of British Columbia.
|
4
5. RIGHT OF ENTRY
5.1 Except as otherwise provided in this Agreement, until the Option is exercised or terminated in accordance with the terms of this Agreement, the Optionee, its servants and agents shall have the sole and exclusive right to:
(a)
|
enter in, under or upon the Property and conduct Mining Work;
|
(b)
|
exclusive and quiet possession of the Property;
|
(c)
|
bring upon the Property and to erect thereon such mining facilities as it may consider advisable; and
|
(d)
|
remove from the Property ore or mineral products for the purpose of bulk sampling, pilot plant or test operations.
|
5.2 The Optionee grants to the Optionor or its duly authorized representatives in writing, access to the Properties provided that such access is not disruptive to the exploration or mining activities of the Optionee.
6. POWERS, DUTIES AND OBLIGATIONS OF OPTIONEE
6.1 The Optionee shall have full right, power and authority to do everything necessary or desirable to carry out an exploration program on the Property and to determine the manner of exploration and development of the Property and, without limiting the generality of the foregoing, the right, power and authority to:
(a)
|
regulate access to the Property, subject only to the right of the Optionor and its representatives to have access to the Property at all reasonable times for the purpose of inspecting work being done thereon but at their own risk and expense;
|
(b)
|
employ and engage such employees, agents and independent contractors as it may consider necessary or advisable to carry out its duties and obligations hereunder and in this connection to delegate any of its powers and rights to perform its duties and obligations hereunder but the Optionee shall not enter into contractual relationships except on terms which are commercially competitive;
|
(c)
|
to keep the Property in good standing and free and clear of liens, charges and encumbrances of every nature arising from operations hereunder (except liens for taxes not yet due, and other claims and liens contested in good faith by the Optionee) and to proceed with all diligence to contest or discharge any lien that is filed;
|
(d)
|
execute all documents, deeds and instruments, do or cause to be done all such acts and things and give all such assurances as may be necessary to maintain good and valid title to the Property, and each party hereby irrevocably constitutes the Optionee its true and lawful attorney to give effect to the foregoing and the Optionee hereby agrees to indemnify and save the Optionor harmless from any and all costs, loss or damage sustained or incurred without gross negligence or bad faith by the Optionor directly or indirectly as a result of the Optionee’s exercise of its powers pursuant to this Subsection 6.1 (d) and
|
(e)
|
conduct such title examinations and cure such title defects as may be advisable in the reasonable judgment of the Optionee.
|
6.2 Until the Option is terminated or exercised in accordance with this Agreement, the Optionee shall have the duties and obligations to:
(a)
|
keep the Property free and clear of all liens and encumbrances arising from its operations hereunder (except liens contested in good faith by the Optionee) and in good standing by the doing and filing, or payment in lieu thereof, of all necessary assessment work and payment of all taxes required to be paid and by the doing of all other acts and things and the making all other payments required to be made which may be necessary in that regard;
|
(b)
|
permit the Optionor and its representatives duly authorized by it in writing, at their own risk and expense, access to the Property at all reasonable times and to all records prepared by the Optionee in connection with Mining Work;
|
(c)
|
conduct all work on or with respect to the Property in a careful and minerlike manner and in accordance with the applicable laws of the jurisdiction in which the Property is located and indemnify and save the Optionor harmless from any and all claims, suits or actions made or brought against the Optionor as a result of work done by the Optionee on or with respect to the Property; and
|
(d)
|
maintain true and correct books, accounts and records of operations hereunder.
|
(e)
|
promptly reimburse the Optionor for any expenditures necessary for keeping the Property in good standing for a period from the date of this Agreement to the effective date of the transfer of the Property to the Optionee, pursuant to the provisions of Section 4.1, within 10 business days upon the presentation to the Optionee of reasonable evidence of payment thereof.
|
5
7. VESTING OF INTEREST
7.1 Forthwith upon the Optionee exercising the Option by performing the requirements of Section 3.1, all of the Optionor’s interest in and to the Property shall vest, and shall be deemed for all purposes hereof to have vested, in the Optionee.
7.2 Upon completion of the option payments and incurring the Expenditures outlined in Section 3.1, the Optionee shall be entitled forthwith to record the transfer documents described in Section 4.1 in the appropriate land title office in the jurisdiction in which the Property is located.
8. TERMINATION OF OPTION
8.1 In the event of default in the performance of the requirements of Section 3.1, then subject to the provisions of Section 8.3, the Option and this Agreement shall terminate.
8.2 The Optionee shall have the right to terminate this Agreement, or abandon all right, title and interest in any portion of the Property, by giving thirty (30) days’ written notice of such termination or abandonment to the Optionor, and upon the effective date of such termination of this Agreement, or abandonment of any portion of the Property, this Agreement shall be of no further force and effect to the extent of such termination or abandoned portion of the Property, the whole subject to Section 8.3.
8.3 Notwithstanding any other provisions of this Agreement, in the event of termination of this Agreement, or the abandonment of any portion of the Property, the Optionee shall:
(a)
|
transfer or re-transfer the Licences and/or the Property, or the portion thereof abandoned, to the Optionor, provided always that the Property shall, at the date of such transfer or re-transfer, all annual assessment fees/property taxes on the Property will have been paid up to and including the effective date of termination or the date abandonment occurs;
|
(b)
|
deliver to the Optionor any and all reports, samples, drill cores and engineering data of any kind whatsoever pertaining to the Property or related to Mining Work which has not been previously delivered to the Optionor;
|
(c)
|
perform or secure the performance of all reclamation and environmental rehabilitation as may be required by all applicable legislation; and
|
(d)
|
upon notice from the Optionor, remove all materials, supplies and equipment from the Property, or from the portion thereof so abandoned, provided however, that the Optionor may dispose of any such materials, supplies or equipment not removed from the Property within one hundred and eighty (180) days of receipt of such notice by the Optionee.
|
9. FURTHER ASSURANCES
9.1 Each of the parties covenants and agrees, from time to time and at all times, to do all such further acts and execute and deliver all such further deeds, documents and assurances as may be reasonably required in order to fully perform and carry out the terms and intent of this Agreement.
10. NOTICE
10.1 The parties agree that where any notice is required or permitted to be given or delivered it may be effectively given or delivered if it is delivered personally, by electronic mail (“email”) or by mailing the same by prepaid registered or certified mail or by facsimile (“Fax”) at the postal or email addresses or facsimile numbers set out above or to such other addresses or facsimile numbers as the party entitled to or receiving such notice may notify the other parties as provided for herein. Delivery will be deemed to have been received:
(a)
|
the same day if given by personal service or if transmitted electronically by email or Fax; or
|
(b)
|
ten (10) business days following the day of posting if sent by regular post.
|
6
11. TIME OF THE ESSENCE
11.1 Time shall be of the essence in the performance of this Agreement.
12. ENUREMENT
12.1 This Agreement shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
13. SEVERABILITY
13.1 If any one or more of the provisions contained herein should be invalid, illegal or unenforceable in any respect in any jurisdiction, the validity, legality and enforceability of such provisions shall not in any way be affected or impaired thereby in any other jurisdiction and the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
14. ENTIRE AGREEMENT
14.1 This Agreement constitutes and contains the entire agreement and understanding between the parties and supersedes all prior agreements, memoranda, correspondence, communications, negotiations and representations, whether oral or written, express or implied, statutory or otherwise between the parties or any of them with respect to the subject matter hereof.
15. OPTION ONLY
15.1 This Agreement provides for an option only, and except as specifically provided otherwise, nothing herein contained shall be construed as obligating the Optionee to do any acts or make any payments hereunder and any act or acts or payment or payments as shall be made hereunder shall not be construed as obligating the Optionee to do any further act or make any further payment.
16. GOVERNING LAW
16.1 This Agreement will be governed and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein. The parties hereby attorn to the jurisdiction of the federal and provincial courts located in the City of Vancouver, British Columbia, for all disputes arising from this Agreement.
17. COUNTERPARTS
17.1 This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one complete Agreement duly executed by the parties. Where counterparts are delivered in original or faxed form or by scanned e-mail, the parties adopt any signature received by a receiving fax machine or e-mail as the original signatures of the parties.
[ THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK ]
7
18. SECTIONS, SUBSECTIONS AND SCHEDULES
18.1 Unless otherwise explicitly stated, all references to Sections, Subsections and Schedules in this Agreement refer to the Sections, Subsections and Schedules of this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day, month and year first above written.
SIGNED, SEALED AND DELIVERED
|
|
On behalf of 0887717 B.C. Ltd.
|
|
by C. Xxxxx Xxxxx, in the presence of:
|
|
/s/ Xxxxx Xxxxxxxxxx
|
|
Witness Signature
|
|
Xxxxx Xxxxxxxxxx
|
|
Witness Name
|
/s/ C. XXXXX XXXXX
|
C. XXXXX XXXXX,
|
|
0000 Xxxxxxxx Xx., Xxxxxxxxx, X.X.
|
PRESIDENT AND CEO
|
Witness Address
|
0887717 B.C. Ltd.
|
Lawyer
|
|
Witness Occupation
|
|
August 23, 2010 | |
Date
|
|
SIGNED, SEALED AND DELIVERED by
|
|
XXXXXX XXXXX XXXXXXXX
|
|
in the presence of:
|
|
/s/Xxx Xxxxxxx
|
|
Witness Signature
|
|
Xxx Xxxxxxx
|
|
Witness Print Name
|
/s/XXXXXX XXXXX XXXXXXXX
|
XXXXXX XXXXX XXXXXXXX
|
|
000 Xxxxx Xx., Xxxxxxx, X.X.
|
|
Witness Address
|
|
Retired
|
|
Witness Occupation
|
|
August 17, 2010
|
|
Date
|
8
THIS IS SCHEDULE "A" TO THE OPTION AGREEMENT DATED FOR REFERENCE ____________, 2010 BETWEEN XXXXXX XXXXX XXXXXXXX AND 0887717 B.C. LTD.
DESCRIPTION OF PROPERTY
Tenure Number
|
Claim Name
|
Tenure Type
|
Tenure Sub Type
|
406186
|
Dome 1
|
Mineral
|
Claim
|
406187
|
Dome 2
|
Mineral
|
Claim
|
406188
|
Dome 3
|
Mineral
|
Claim
|
406189
|
Dome 4
|
Mineral
|
Claim
|
406190
|
Dome 5
|
Mineral
|
Claim
|
406191
|
Dome 6
|
Mineral
|
Claim
|
406192
|
Dome 7
|
Mineral
|
Claim
|
406193
|
Dome 8
|
Mineral
|
Claim
|
406194
|
Dome 9
|
Mineral
|
Claim
|
406195
|
Dome 10
|
Mineral
|
Claim
|
406196
|
Dome 11
|
Mineral
|
Claim
|
406197
|
Dome 12
|
Mineral
|
Claim
|
406198
|
Dome 13
|
Mineral
|
Claim
|
406199
|
Dome 14
|
Mineral
|
Claim
|
406200
|
Dome 15
|
Mineral
|
Claim
|
406201
|
Dome 16
|
Mineral
|
Claim
|
9
10
11
12
13
THIS IS SCHEDULE "B" TO THE OPTION AGREEMENT DATED FOR REFERENCE August 17, 2010 BETWEEN XXXXXX XXXXX XXXXXXXX AND 0887717 B.C. LTD.
DISCLOSURE OF ALL LIENS, CHARGES AND ENCUMBRANCES (INCLUDING OPTIONS, RIGHTS OF FIRST REFUSAL OR CLAIMS AGAINST THE PROPERTIES)
None.
14