Exhibit 4.1
OPTION AGREEMENT
made among
STRONGBOW RESOURCES INC.
and
ULSTER MINERALS LIMITED
and
TOURNIGAN GOLD CORPORATION
[Date: February ___, 2003]
Fasken ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
Barristers & Solicitors
▇▇▇▇ - ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇
Curraghinalt
TABLE OF CONTENTS
ARTICLE 1
INTERPRETATION
1.1 Definitions............................................................2
1.2 Included Words.........................................................5
1.3 Headings...............................................................5
1.4 References.............................................................5
1.5 Currency...............................................................6
1.6 Knowledge..............................................................6
1.7 Schedules..............................................................6
1.8 Governing Law..........................................................6
1.9 Severability...........................................................6
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 Mutual Representations and Warranties..................................7
2.2 Optionor's Representations and Warranties..............................7
2.3 Survival of Representations and Warranties.............................9
ARTICLE 3
OPTION
3.1 Grant of Initial Option................................................9
3.2 First Stage Earn In....................................................9
3.3 Activation of Second Stage of Initial Option..........................10
3.4 Second Stage Earn In..................................................10
3.5 Activation of Third Stage of Initial Option...........................10
3.6 Third Stage Earn In...................................................11
3.7 Payment in Lieu of Expenditures.......................................11
3.8 Grant of Further Option...............................................11
3.9 Optionee's Election to Terminate......................................11
3.10 Termination with No Interest..........................................11
3.11 Termination with 51% Interest.........................................12
3.12 Termination with 60% Interest.........................................13
3.13 Optionor's Election...................................................13
3.14 Expenditure Statement and Audit.......................................14
3.15 Option Only...........................................................15
ARTICLE 4
OPTION PERIOD RIGHTS AND OBLIGATIONS
4.1 Optionee's Right of Entry.............................................15
4.2 Optionee's Obligations................................................15
4.3 Emergency Expenditures................................................16
4.4 Registered Title......................................................17
4.5 Abandonment of Properties.............................................17
ARTICLE 5
FORMATION OF JOINT VENTURE
5.1 Formation of Joint Venture............................................18
5.2 Initial Interests.....................................................19
5.3 Initial Expenditures..................................................19
5.4 Joint Venture Operator................................................19
ARTICLE 6
TRANSFERS
6.1 Limitations on Transfers..............................................19
6.2 Prohibited Dispositions...............................................20
6.3 Right of First Offer..................................................20
6.4 Exceptions............................................................20
6.5 Conditions of Transfers...............................................21
ARTICLE 7
FORCE MAJEURE
7.1 Events................................................................21
7.2 Effect of Force Majeure...............................................21
7.3 Obligation to Remove Force Majeure....................................21
7.4 Giving Notice.........................................................22
ARTICLE 8
CONFIDENTIAL INFORMATION
8.1 Confidential Information..............................................22
8.2 Information in Public Domain..........................................22
8.3 Request to Disclose...................................................22
8.4 News Release..........................................................22
ARTICLE 9
ARBITRATION
9.1 Single Arbitrator.....................................................23
9.2 Prior Notice..........................................................23
9.3 No Agreement..........................................................23
9.4 Conduct of Arbitration................................................23
ARTICLE 10
AREA OF INTEREST
10.1 Limitation on Acquisitions............................................23
10.2 Acquisition of Additional Property....................................24
10.3 Notice of Rejection...................................................24
10.4 Title to Additional Property..........................................24
10.5 Further Assurance.....................................................24
10.6 Non-Compliance Constitutes Default....................................25
ARTICLE 11
NOTICE
11.1 Method................................................................25
11.2 Amending Addresses....................................................25
ARTICLE 12
GENERAL
12.1 Other Activities and Interests........................................25
12.2 Entire Agreement......................................................26
12.3 No Waiver.............................................................26
12.4 Further Assurances....................................................26
12.5 Manner of Payment.....................................................26
12.6 Enurement.............................................................26
12.7 Special Remedies......................................................26
12.8 Time of the Essence...................................................27
12.9 Counterparts and Fax Execution........................................27
SCHEDULE A - Properties Description
Part I - Mineral Properties
Part II - Lands
Part III - Encumbrances
Part IV - Map
SCHEDULE B - Terms for Joint Venture Agreement
Curraghinalt
OPTION AGREEMENT
----------------
THIS AGREEMENT made as of the ____ day of February, 2003.
BETWEEN:
STRONGBOW RESOURCES INC., a corporation organized
under the laws of British Columbia ("Strongbow"),
and ULSTER MINERALS LIMITED, a corporation
organized under the laws of Northern Ireland
("UML"), each having an office at ▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇, fax (▇▇▇)▇▇▇-▇▇▇▇,
(Strongbow and UML together, the "Optionor")
OF THE FIRST PART
AND:
TOURNIGAN GOLD CORPORATION, a corporation
organized under the laws of British Columbia and
having an office at 480 - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, fax
(▇▇▇)▇▇▇-▇▇▇▇,
(the "Optionee")
OF THE SECOND PART
WHEREAS:
(A) The Optionor has interests in certain exploration licences and
leasehold interests in relation to lands located in Northern Ireland, known as
the Curraghinalt project, all as more particularly described in Schedule A;
(B) The Optionee wishes to explore the property comprised in the
Curraghinalt project for minerals and to acquire an option to earn an interest
therein;
NOW THEREFORE THIS AGREEMENT WITNESSES that for and in consideration of the
sum of $10 now paid by the Optionee to the Optionor, the receipt of which is
hereby acknowledged by the Optionor, and for other good and valuable
consideration, the receipt and sufficiency whereof is hereby acknowledged by the
Optionor, the Parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
For the purposes of this Agreement, except as otherwise defined herein, the
following capitalized words and phrases when used herein have the following
meanings:
Additional Property means any Mineral Rights or Surface Rights acquired
within the Area of Interest and which become a part of the Properties as
contemplated in Article 10.
Affiliate means any person, partnership, joint venture, corporation or
other form of enterprise which directly or indirectly controls, is
controlled by, or is under common control with, a Party. For purposes of
the preceding sentence, "control" means possession, directly or indirectly,
of the power to direct or cause direction of management and policies
through ownership of voting securities, contract, voting trust or
otherwise.
Anniversary Date means an anniversary date of the Effective Date.
Area of Interest means the area within the grid references provided by Part
I of Schedule "A" to this Agreement.
Business Day means a day on which commercial banks are open for business in
Vancouver, British Columbia.
Effective Date means the effective date of this Agreement, as set forth at
the top of the first page of this Agreement.
Encumbrance means any mortgage, charge, pledge, hypothecation, security
interest, assignment, lien (statutory or otherwise), charge, title
retention agreement or arrangement, royalty, restrictive covenant or other
encumbrance of any nature.
Expenditures means all costs and expenses of whatever kind or nature spent
or incurred by or on behalf of the Optionee from the date hereof in the
conduct of exploration and development activities on or in relation to the
Properties including, without limitation:
(a) in holding the Properties in good standing (including any monies
expended as required to comply with applicable laws and regulations,
such as for the completion and submission of assessment work and
filings required in connection therewith), in curing title defects and
in acquiring and maintaining surface and other ancillary rights;
(b) in preparing for and in the application for and acquisition of
environmental and other permits necessary or desirable to commence and
complete exploration and development activities on the Properties;
(c) in doing geophysical and geological surveys, drilling, assaying and
metallurgical testing, including costs of assays, metallurgical
testing and other tests and analyses to determine the quantity and
quality of Minerals, water and other materials or substances;
(d) in the preparation of work programs and reporting as to the results
thereof including any pre-feasibility or feasibility study or other
evaluation of the Properties;
(e) in acquiring facilities or the use thereof and for all parts, supplies
and consumables;
(f) for salaries, wages and fringe benefits (whether or not required by
law), including actual labour overhead expenses, for employees to the
extent that they are assigned to exploration and development
activities on the Properties;
(g) travelling expenses of all persons engaged in work with respect to and
for the benefit of the Properties including for their food, lodging
and other reasonable needs;
(h) payments to contractors or consultants for work done, services
rendered or materials supplied;
(i) all taxes levied against or in respect of the Properties or activities
thereon and the cost of insurance premiums and performance bonds or
other security; and
(j) a charge equal to 10% of all Expenditures referred to in clauses (a)
to (i) above for unallocable overhead and head office expenses of the
Optionee (but limited to 5% on any single third party contract in
excess of $50,000) and all other expenses relating to supervision and
management of all work done with respect to and for the benefit of the
Properties.
Feasibility Study means a study prepared or confirmed by a recognized and
independent firm of mining engineering consultants which contains a
detailed examination of the feasibility of bringing a deposit of Minerals
on the Properties into commercial production by establishment of a mine,
and which includes reviews of all relevant issues, a statement of the ore
reserves, a description of the nature and scale of any proposed operation,
an estimate of the construction and other costs necessary to bring the
Properties into commercial production and of the operating costs after the
commencement thereof, and which is a bankable document, that is to say, a
document in form appropriate for presentation to a reputable bank or other
financial institution from which a party might wish to secure financing.
Force Majeure means any cause beyond a Party's control (except those caused
by its own lack of funds) including, but not limited to: acts of God, fire,
flood, explosion, strikes, lockouts or other industrial disturbances; any
terrorist act; any military or paramilitary act or order; laws, rules and
regulations or orders of any duly constituted court or governmental
authority; or non-availability of materials or transportation; or protests,
demonstrations or other events causing work stoppages by environmental
activists or others.
Further Option means the option that may be granted to the Optionee under
the Joint Venture Agreement to acquire the remainder of the Optionor's
Interest, as contemplated in Section 3.8.
Initial Interest means the Interest acquired by the Optionee upon exercise
of the Initial Option pursuant to the terms hereof.
Initial Option means the option granted to the Optionee as provided in
Section 3.1.
Interest means an undivided right, title and interest in and to the
Properties and the Other Assets held through shares in Newco.
Joint Venture means the joint venture formed pursuant to Section 5.1(a).
Joint Venture Agreement means the joint venture or other form of agreement
executed and delivered pursuant to Section 5.1(b).
Lands means the Surface Rights described in Part II of Schedule A, and
after the date of this Agreement includes the Surface Rights comprised in
any Additional Property, together with any renewal of any of such Surface
Rights and any other form of successor or substitute title therefore.
Minerals means any and all ores, and concentrates or metals derived
therefrom, containing precious, base and industrial minerals and which are
found in, on or under the Properties and may lawfully be explored for,
mined and sold pursuant to the Mineral Right, Surface Rights and other
instruments of title under which the Properties are held.
Mineral Properties means the Mineral Rights described in Part I of Schedule
A and after the date of this Agreement includes the Mineral Rights
comprised in any Additional Property, together with any renewal or re-issue
of any of such Mineral Rights and any other form of successor or substitute
title therefore.
Mineral Rights means the prospecting licences, mining leases, mineral
concessions and other forms of tenure or other rights to minerals, or to
work upon lands for the purpose of searching for, developing or extracting
minerals under any forms of mineral title recognized under the laws of
Northern Ireland or any subdivision thereof, whether contractual, statutory
or otherwise, or any interest therein.
Newco means the new subsidiary to be formed by UML as contemplated in
section 5.1 hereof.
Option Period means the period during which the Initial Option or Further
Option remains in effect under this Agreement.
Other Assets means maps, drill core, assays, geological and other technical
reports, studies, designs, plans and financial or other records related to
the Project, together with exploration tools, supplies and equipment
located on or near the Lands and owned by UML for Project purposes.
Participating Interest means an undivided beneficial interest in the
Properties and the other assets of the Joint Venture, or shares in a
jointly owned company, in either case under the Joint Venture Agreement and
expressed as a percentage of the entire interest or total issued shares, as
the case may be.
Party means the Optionor or the Optionee.
Project means the project for the development and exploitation of the
Properties to produce Minerals.
Properties means the Lands and the Mineral Properties.
Surface Rights means any interest in any real property, whether freehold,
leasehold, license, right of way, easement or any other surface or other
right in relation to real property.
1.2 Included Words
This Agreement will be read with such changes in gender or number as the
context requires.
1.3 Headings
The headings to the articles, sections, subsections or clauses of this
Agreement are inserted for convenience only and are not intended to affect the
construction hereof.
1.4 References
Unless otherwise stated, a reference herein to a numbered or lettered
article, section, subsection, clause or schedule refers to the article, section,
subsection, clause or schedule bearing that number or letter in this Agreement.
A reference to "this Agreement", "the Option Agreement", "hereof", "hereunder",
"herein" or words of similar meaning, means this Agreement including the
schedules hereto, together with any amendments thereof.
1.5 Currency
All dollar amounts expressed herein, unless otherwise specified, refer to
lawful currency of Canada.
1.6 Knowledge
Where any representation or warranty contained in this Agreement is
expressly qualified by reference to the knowledge of the Optionor, the Optionor
confirms that it has made due and diligent inquiry of such persons (including
appropriate officers of the Optionor) as are reasonably necessary as to the
matters that are the subject of the representations and warranties.
1.7 Schedules
The following schedules are attached to and incorporated in this Agreement
by this reference:
A Properties Description
Part I - Mineral Properties
Part II - Lands
Part III - Encumbrances
Part IV - Map
B Terms of Joint Venture Agreement
1.8 Governing Law
This Agreement will be construed according to and governed by the laws in
force in the Province of British Columbia and, except where matters are
expressed herein to be subject to arbitration, the courts of such Province will
have exclusive jurisdiction to hear and determine all disputes arising
hereunder. Nothing contained in this Section 1.8 is intended to affect the
rights of a Party to enforce a judgement or award outside of British Columbia.
1.9 Severability
If any provision of this Agreement is or becomes illegal, invalid or
unenforceable, in whole or in part, the remaining provisions will nevertheless
be and remain valid and subsisting and the said remaining provisions will be
construed as if this Agreement had been executed without the illegal, invalid or
unenforceable portion.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 Mutual Representations and Warranties
Each party represents and warrants to the other party hereto that:
(a) it is a body corporate duly incorporated or continued and duly
organized and validly subsisting under the laws of its organizational
jurisdiction;
(b) it has full power and authority to carry on its business and to enter
into this Agreement;
(c) neither the execution and delivery of this Agreement nor the
consummation of the transactions hereby contemplated conflict with,
result in the breach of or accelerate the performance required by any
agreement to which it is a party;
(d) the execution and delivery of this Agreement do not violate or result
in the breach of the laws of any jurisdiction applicable to a party or
pertaining thereto or of its organizational documents;
(e) all corporate authorizations have been obtained for the execution of
this Agreement and for the performance of its obligations hereunder;
and
(f) this Agreement constitutes a legal, valid and binding obligation of
the party enforceable against it in accordance with its terms.
2.2 Optionor's Representations and Warranties
Each of Strongbow and UML, jointly and severally, represents and warrants
to the Optionee that:
(a) each of the Mineral Properties
(i) is fully and accurately described in Part I of Schedule A,
including any Encumbrances in relation thereto is fully and
accurately described in Part III of Schedule A, and neither of
them nor any of their Affiliates has an interest in any other
Mineral Rights which are located wholly or in part within the
Area of Interest;
(ii) is in good standing under the applicable laws, including the
incurring of expenditures and the payment of surface taxes or
other monies to the expiry dates as indicated in Part I of
Schedule A, each of such Mineral Properties are in the process of
being re-issued by the relevant issuing authority, and neither of
them are aware of any basis upon which the re-issuance of any of
such Mineral Properties could be denied;
(iii) have been duly and validly staked or otherwise properly and
legally acquired, and
(iv) are wholly owned by and recorded or registered in the name of
UML, free and clear of all Encumbrances except those specifically
identified in Part III of Schedule A, and the Optionor is in
exclusive possession of such Mineral Properties;
(b) each of the Lands is fully and accurately described in Part II of
Schedule A, including any Encumbrances in relation hereto, have been
properly and legally acquired, are wholly owned by and recorded or
registered in the name of UML, free and clear of all Encumbrances
except those specifically identified in Part III of Schedule A, and
the Optionor is in exclusive possession of such Lands;
(c) the leasehold interest comprised in the lands is in good standing
under the terms of the lease, all rent, taxes and other amounts due
and payable pursuant to the lease have been paid, and neither party
thereunder has given notice of default thereunder or breach thereof
nor, to their knowledge, is there any basis for such notice to be
given;
(d) there are no outstanding agreements or options to acquire or purchase
any of the Properties, no person other than Summit Exploration Ltd.
(who hold a 2% net smelter returns royalty under a purchase agreement
dated 15/09/99) has any royalty or other interest whatsoever in
production therefrom, and there is no adverse claim or challenge
against or to the ownership of or title to any of the Properties, nor
to the best of its knowledge is there any basis therefor, other than
any royalty that may eventually be payable to the Government of
Northern Ireland or the Crown Estate;
(e) the Optionor has received no notice and has no knowledge of any
proposal to terminate or vary the terms of or rights previously
comprised in any of the Mineral Properties from any government or
other regulatory authority;
(f) no proceedings are pending for and the Optionor is not aware of any
basis for the institution of any proceedings leading to the
dissolution or winding-up of either of them or the placing of either
of them into bankruptcy or subject to any other laws governing the
affairs of insolvent persons;
(g) there are no orders or directions relating to environmental matters
requiring any work, repairs, construction or capital expenditures with
respect to any of the Lands or the conduct of the business related
thereto, nor to the best of its knowledge have any activities on or in
relation to the any of the Properties been in violation of any
environmental law, regulations or regulatory prohibition or order, and
to the best of their knowledge, conditions on and relating to the
Properties are in compliance with such laws, regulations, prohibitions
and orders;
(h) UML owns and holds the Other Assets, free and clear of all
Encumbrances; and
(i) to the best of their knowledge there is no fact or circumstance known
to either of them which has not been disclosed to the Optionee which
would render any of the foregoing representations and warranties
untrue, incomplete or otherwise misleading.
2.3 Survival of Representations and Warranties
The representations, warranties and covenants contained in this Agreement
are conditions on which the parties have relied in entering into this Agreement
and will survive the execution hereof and the acquisition of any Interest by the
Optionee hereunder. Each Party 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, warranty, covenant, agreement or condition
made by them and contained in this Agreement. A Party may waive any of such
representations, warranties, covenants, agreements or conditions in whole or in
part at any time without prejudice of its right in respect of any other breach
of the same or any other representation, warranty, covenant, agreement or
condition.
ARTICLE 3
OPTION
3.1 Grant of Initial Option
The Optionor hereby grants to the Optionee the sole and exclusive right and
option, in accordance with the other provisions of this Article 3, to acquire in
three stages an Initial Interest of up to 75%, free and clear of all
Encumbrances except for those described in Schedule A.
3.2 First Stage Earn In
If the Optionee wishes to exercise the first stage of the Initial Option
and acquire an Interest of 51%, the Optionee must incur the following
Expenditures by each of the dates specified (or such longer times as may be
permitted by Article 7) and notify the Optionor thereof:
Deadline Date Expenditure Amount Cumulative Amount
------------- ------------------ -----------------
First Anniversary Date $250,000 $250,000
Second Anniversary Date $500,000 $750,000
Third Anniversary Date $1,250,000 $2,000,000
Provided that the Optionee must also complete at least 1000 meters of
drilling on the Properties within six months of the Effective Date in order to
exercise the first stage of the Initial Option. This obligation would be part
of, not in addition to, the Optionee's obligation to incur Expenditures under
this Section 3.2.
Upon the exercise of the first stage of the Option the Optionee will have
an Initial Interest of 51%, which may be increased by the exercise of the second
and third stages of the Initial Option, subject to section 3.13.
3.3 Activation of Second Stage of Initial Option
If the Optionee exercises the first stage of the Initial Option, the
Optionee will have the right to activate the second stage of the Initial Option
within 90 days after the Optionee has given notice of the exercise of the first
stage of the Initial Option by notifying the Optionor.
If the second stage of the Initial Option is activated, then the Initial
Option will remain in effect and so long as it so remains the formation of the
Joint Venture will be postponed.
3.4 Second Stage Earn In
Under the second stage of the Initial Option the Optionee will have the
right to acquire an additional 9% Interest and thereby increase its Interest to
60%. The Optionee may exercise the second stage of the Initial Option by
incurring an additional $2,000,000 in Expenditures (for cumulative Expenditures
of $4,000,000) on the Properties by the Fifth Anniversary Date (or such longer
times as may be permitted by Article 7). Upon the exercise of the second stage
of the Initial Option the Optionee will have an Initial Interest of 60%, which
may be increased by the exercise of the third stage of the Initial Option.
3.5 Activation of Third Stage of Initial Option
If the Optionee exercises the second stage of the Initial Option, the
Optionee will have the right to activate the third stage of the Initial Option
within 90 days after the Optionee has given notice of the exercise of the second
stage of the Initial Option by notifying the Optionor.
If the third stage of the Initial Option is activated, then the Initial
Option will remain in effect and so long as it so remains the formation of the
Joint Venture will be postponed.
3.6 Third Stage Earn In
Under the third stage of the Initial Option the Optionee will have the
right to acquire an additional 15% Interest and thereby increase its Interest to
75%. The Optionee may exercise the third stage of the Initial Option by
delivering a Feasibility Study by the Seventh Anniversary Date (or such longer
times as may be permitted by Article 7). Upon its exercise of the third stage of
the Initial Option, the Optionee will acquire an Initial Interest of 75% and the
Joint Venture will be formed in accordance with section 5.1.
3.7 Payment in Lieu of Expenditures
If the Optionee has not incurred the full amount of the Expenditures which
are required by the Anniversary Date specified under Section 3.2 or Section 3.4
(or such longer time as may be permitted by Article 7), then the Optionee may
pay to the Optionor on or before that date which is 30 days after the relevant
Anniversary Date an amount equal to the shortfall in Expenditures, and such
amount will thereupon be deemed to have been Expenditures incurred by the
Optionee by such Anniversary Date.
3.8 Grant of Further Option
After the formation of the Joint Venture, the Optionee will have the
Further Option to acquire the remainder of the Optionor's Interest in those
circumstances and on those terms that will be contained in the Joint Venture
Agreement.
3.9 Optionee's Election to Terminate
Notwithstanding any other provision of this Article 3, the Optionee may
elect at any time to terminate the Initial Option by delivering notice to the
Optionor.
3.10 Termination with No Interest
The Initial Option granted pursuant to Section 3.1 will be of no further
force and effect and will terminate, and the Optionee will acquire no Initial
Interest and will have no obligation to incur further Expenditures hereunder, on
the earliest of:
(a) six (6) months from the Effective Date, if the Optionee has failed to
drill the amount specified pursuant to Section 3.2;
(b) an Anniversary Date specified in Section 3.2, if the Optionee has
failed to complete Expenditures in the amount specified in Section 3.2
by such Anniversary Date (or failed to make the necessary payment to
the Optionor in lieu thereof within 30 days thereafter as contemplated
in Section 3.7);
(c) the effective date of the Optionee's termination under Section 3.9;
and
(d) if the Optionee is in breach of any of its obligations under Section
4.2 of this Agreement, but only if:
(i) the Optionor has first given to the Optionee written notice of
the breach containing particulars of such breach; and
(ii) the Optionee has not, within 60 days following delivery of the
Optionor's notice, given notice to the Optionor that it has cured
such failure, or, if such breach cannot be cured within such 60
day period, is taking action to commence such cure and is
pursuing such action in a timely manner.
Upon termination of this Agreement under this Section 3.10 the Optionee
shall deliver to the Optionor, within 60 days of the effective date of
termination, copies of all drill logs, maps, reports assay results and other
data and documentation (in paper or electronic format) relating to its
operations on the Property and all samples and drill core and removed from the
Property and in the Optionee's possession.
3.11 Termination with 51% Interest
Once the Optionee has acquired a 51% Interest, then the Initial Option
granted pursuant to Section 3.1 continues, but will be of no further force and
effect and will terminate, and the Optionee will acquire an Initial Interest of
no more than 51%, and will have no obligation to incur further Expenditures
hereunder, on the earliest of:
(a) that date which is 90 days after the exercise of the first stage of
the Initial Option, if the Optionee has not activated the second stage
of the Initial Option pursuant to Section 3.3 by such date;
(b) the Fifth Anniversary Date, if by that date the Optionee has failed to
incur Expenditures of an additional $2,000,000 as contemplated in
Section 3.4 (or failed to make the necessary payment to the Optionor
in lieu thereof within 30 days thereafter as contemplated in Section
3.7);
(c) if the Optionee is in breach of any of its obligations under Section
4.2 of this Agreement, but only if:
(i) the Optionor has first given to the Optionee written notice of
the breach containing particulars of such breach; and
(ii) (ii) the Optionee has not, within 60 days following delivery of
the Optionor's notice, given notice to the Optionor that it has
cured such failure or, if such breach cannot be cured within such
60 day period, is taking action to commence such cure and is
pursuing such action in a timely manner;
(d) the effective date of the Optionee's termination under Section
3.9; and
(e) the effective date of the Optionor's election pursuant to
Sections 3.13.
3.12 Termination with 60% Interest
Once the Optionee has acquired a 60% Interest, then the Initial Option
granted pursuant to Section 3.1 continues, but will be of no further force and
effect and will terminate, and the Optionee will acquire no more than an Initial
Interest of 60%, and will have no obligation to incur further Expenditures
hereunder, on the earliest of:
(a) that date which is 90 days after the exercise of the second stage of
the Initial Option, if the Optionee has not activated the third stage
of the Option pursuant to Section 3.5 by such date;
(b) the Seventh Anniversary Date, if by that date the Optionee has failed
to deliver a Feasibility Study;
(c) if the Optionee is in breach of any of its obligations under Section
4.2 of this Agreement, but only if:
(i) the Optionor has first given to the Optionee written notice of
the breach containing particulars of such breach; and
(ii) the Optionee has not, within 60 days following delivery of the
Optionor's notice, given notice to the Optionor that it has cured
such failure or, if such breach cannot be cured within such 60
day period, is taking action to commence such cure and is
pursuing such action in a timely manner;
(d) the effective date of the Optionee's termination under Section 3.9;
and
(e) the effective date of the Optionor's election pursuant to Sections
3.13.
3.13 Optionor's Election
Notwithstanding any other provision of this Article 3, upon the Optionor
receiving notice of the completion of the Expenditures incurred pursuant to
Section 3.2, the Optionor will have a 60 day period from the date of such notice
during which it may elect to terminate the Initial Option and trigger the
formation of the Joint Venture in accordance with Article 5.
3.14 Expenditure Statement and Audit
An itemized statement of Expenditures incurred in any period certified to
be correct by an officer of the Optionee shall be conclusive evidence of the
making of such Expenditures unless within 30 days of receipt of such statement
the Optionor delivers a notice to the Optionee detailing its objections to the
statement. If the Optionor delivers an objection within such 30 day period, then
the Optionor shall be entitled to request that the auditors of the Optionee
audit the Expenditures provided for in the statement of Expenditures that is the
subject of the objection notice, and
(a) if the auditors determine that the statement of Expenditures was
accurate within five (5%) percent of actual Expenditures or that
actual Expenditures incurred exceed the statement of Expenditures by
more than five (5%) percent of those stated, then the costs of the
audit will be borne by the Optionor, and if the excess Expenditures
(i) relate to the exercise of the first stage of the Initial Option,
then they will be credited towards Expenditures required to
exercise the second stage of the Initial Option, unless the
Optionor has elected to form the Joint Venture under section
3.13;
(ii) relate to the exercise of the second stage of the Initial Option
or the Optionor has elected to form the Joint Venture under
section 3.13, then they will be credited towards the
contributions required to be made by the Optionee under the Joint
Venture Agreement;
(b) if the auditors determine that the statement of Expenditures
overstated Expenditures actually made by greater than a five (5%)
percent margin, then the costs of the audit will be borne by the
Optionee and whatever the overstatement only the actual Expenditures
so determined will constitute Expenditures for the purposes of Section
3.2 or Section 3.3, as applicable.
If any such determination results in a deficiency in the amount of
Expenditures required to be incurred by an Anniversary Date under Section 3.2 or
Section 3.4 in order to exercise the first or second stage of the Initial
Option, then the Optionee may pay to the Optionor with 30 days after such
determination the amount equal to the deficiency, and such payment will be
deemed to be a payment of cash in lieu of Expenditures made under Section 3.7 as
of the relevant Anniversary Date.
The auditors' determination of Expenditures will be final and determinative
of the amounts stated in the statement in question, and will not be subject to
arbitration hereunder.
3.15 Option Only
For greater certainty, under this Agreement the Optionee has acquired an
option only and all Expenditures and the delivery of a Feasibility Study are
entirely at the discretion of the Optionee.
ARTICLE 4
OPTION PERIOD RIGHTS AND OBLIGATIONS
4.1 Optionee's Right of Entry
The Optionor hereby grants to the Optionee and its employees, agents and
independent contractors the exclusive right in respect of the Properties,
exercisable throughout the Option Period, to:
(a) enter thereon;
(b) have exclusive and quiet possession thereof;
(c) carry out exploration, development and evaluation activities
including, without limitation, the removal of Minerals, provided that
the removal of minerals shall be for sampling purposes only and any
proceeds from the sale of such samples shall be the property of the
Optionor; and
(d) bring upon and erect upon the Lands such structures and other
facilities as may be necessary or advisable to carry out exploration,
development and evaluation activities.
The Optionee's rights pursuant to this Section 4.1 will at all times be subject
to any restrictions that may be required by applicable laws in Northern Ireland
or by regulatory authority and to rights of entry and access reserved to the
Optionor hereunder.
4.2 Optionee's Obligations
The Optionee is obligated during the Option Period:
(a) to keep the Properties in good standing by the doing and filing of all
necessary work and by the doing of all other acts and things and
making all other payments which may be necessary in that regard
including compliance with the terms of any lease;
(b) to conduct all work on or with respect to the Properties, in a manner
consistent with good mining practice and in compliance with the
applicable laws of Northern Ireland.
(c) to keep the Properties free and clear of all Encumbrances arising from
its operations hereunder (except liens for taxes not yet due, other
inchoate liens and liens contested in good faith by the Optionee) and
will proceed with all diligence to contest and discharge any such lien
that is filed;
(d) to permit the directors, officers, employees and designated
consultants and agents of the Optionor, at their own risk, access to
the Properties at all reasonable times, provided that the Optionor
will indemnify the Optionee against and save it harmless from all
costs, claims, liabilities and expenses that the Optionee may incur or
suffer as a result of any injury (including injury causing death) to
any director, officer, employee, designated consultant or agent of the
Optionor while on the Lands except to the extent that any such costs,
claims, liabilities or expenses result from the Optionee's gross
negligence or wilful misconduct;
(e) indemnify and hold the Optionor harmless from any and all liabilities,
costs, damages or charges arising from the failure of the Optionee to
comply with the covenants contained in this article or otherwise
arising from its operations on the Property;
(f) allow the Optionor access at all reasonable times and intervals to all
maps, reports, assay results and other factual technical data (whether
in paper or electronic form) prepared or obtained by the Optionee in
connection with its operations on the Property;
(g) to deliver to the Optionor semi-annual reports indicating the status
of work being conducted on the Properties and an estimate of the
Expenditures incurred during the previous six months, provided that
such reports will not be required for those periods in which there is
no work being conducted on the Properties;
(h) to deliver to the Optionor annual (calendar year) reports disclosing
any significant technical data learned or obtained in connection with
work in respect of the Properties, as well as a breakdown of
Expenditures incurred in carrying out such work, on or before the 31st
day of March of the year following the calendar year to which such
report relates; and
(i) to maintain true and correct books, accounts and records of
Expenditures.
4.3 Emergency Expenditures
Notwithstanding any other provision of this Agreement, the Optionee will be
entitled to incur as Expenditures all costs and expenses necessary to preserve
or protect life, limb, property or the environment in respect of the Properties
or otherwise in the course of exploration or development activities.
4.4 Registered Title
During the Option Period:
(a) The Optionor will remain the registered holder of the Properties as
they exist on the date hereof and, forthwith following the execution
of this Agreement, the Optionor will deliver to the Optionee's
solicitors duly executed and registrable transfers of such Properties,
in form and substance sufficient, in the reasonable opinion of the
Optionee's solicitors, to transfer them to Newco, free and clear of
Encumbrances except for those described in Schedule A.
(b) The Optionor will be entitled to be the registered holder of the
Mineral Properties and the Surface Rights comprised in any Additional
Property and, as a condition of its registration in the Optionor's
name, the Optionor will deliver to the Optionee, duly executed and
registrable transfers of such Additional Property, in form and
substance sufficient, in the reasonable opinion of the Optionee's
solicitors, to transfer it to Newco free and clear of Encumbrances,
except for those described in Schedule A, if applicable.
Upon the Optionee acquiring an Interest it will be entitled to request that
its solicitors register such transfers such that Newco becomes the recorded
holder of the Properties.
The Optionor or the Optionee, to the extent that it is the recorded holder
of any of the Properties, will hold title to such Properties subject to this
Agreement.
4.5 Abandonment of Properties
The Optionee may surrender or abandon any of the Properties, provided that
notice of such proposed abandonment is given to the Optionor, who may elect, by
notice to the Optionee within 60 days after the surrender or abandonment notice,
to have such Properties transferred to it without warranty and at its own cost.
Such Properties will be transferred and assigned to the Optionor as soon as
possible following its election. Failing such election, the Properties may be
abandoned or surrendered as proposed by the Optionee. Following a transfer or
abandonment under this section, the Properties so transferred or abandoned will
thereafter cease to form part of the Properties or the Area of Interest and will
no longer be subject to this Agreement, except with respect to any obligations
or liabilities of the Parties as have accrued to the date of such transfer or
abandonment.
ARTICLE 5
FORMATION OF JOINT VENTURE
5.1 Formation of Joint Venture
Upon the termination of the Initial Option, provided that the Optionee has
acquired its Initial Interest under Article 3 of this Agreement:
(a) the Optionee and the Optionor will be deemed to have formed a joint
venture for the purpose of carrying out all such acts which are
necessary or appropriate, directly or indirectly, to:
(i) hold the Properties and the other assets of the Joint Venture,
(ii) explore the Mineral Properties for Minerals and, if feasible,
develop a mine on the Properties,
(iii) so long as it is technically, economically and legally feasible,
operate such mine and exploit the Minerals extracted from the
Properties, and
(iv) carry out any other activity in connection with or incidental to
any of the foregoing;
(b) the Optionee and the Optionor will be deemed to have entered into a
joint venture agreement in the form of a Shareholders Agreement in
respect of the joint ownership of the Newco and substantially based on
the terms set forth in Schedule B, and each of them will negotiate in
good faith and use every commercially reasonable effort to finalize,
execute and deliver a formal agreement containing such terms and any
other terms and conditions as would be customary for a comparable
jointly owned company holding a comparable project;
(c) Expenditures, if any, in excess of those required to acquire the
Initial Interest which have been or are committed to be incurred by or
on behalf of the Optionee as Expenditures at the time of formation of
the Joint Venture will be deemed to have been approved as Joint
Venture program under the Joint Venture Agreement and each of the
Optionee and the Optionor will pay its pro rata share of such costs.
For greater certainty, if the Optionee has acquired a 51% Interest or a 60%
Interest but the Initial Option has not yet terminated under Section 3.11 or
Section 3.12, then the formation of the Joint Venture and the other provisions
of this Section 5.1 will be deferred until the Initial Option is terminated or
the Optionee acquires a 75% Interest under Section 3.6, whichever first occurs.
Notwithstanding any other provisions of this Section 5.1 UML will promptly
after the execution of this Agreement form a new subsidiary under the laws of
Northern Ireland and having constating documents that are acceptable to the
Optionee (the "Newco"). The Optionee and the Optionor will co-operate in having
all applications for the re-issue or renewal of the Mineral Properties made in
the name of Newco and shall have the Properties and Other Assets transferred to
Newco.
5.2 Initial Interests
The Optionee's initial participating interest in the Shares of Newco under
the Joint Venture Agreement will be that percentage which is equal to the
Initial Interest earned by the Optionee hereunder.
The Optionor's initial participating interest in the Shares of Newco under
the Joint Venture Agreement will be that percentage which is equal to 100% minus
the Initial Interest earned by the Optionee hereunder.
5.3 Initial Expenditures
Upon the formation of the Joint Venture, each of the Optionee and the
Optionor will have initial actual and deemed Expenditures as follows:
(a) Optionee: Cumulative Expenditures to the date of acquisition of
Initial Interest ("Optionee's amount); and
(b) Optionor: Optionee's amount divided by the Initial Interest times the
Optionor's initial participating interest under the Joint Venture
Agreement.
5.4 Joint Venture Operator
The Optionee, being the Party with the larger initial Participating
Interest, will be the initial operator under the Joint Venture Agreement.
ARTICLE 6
TRANSFERS
6.1 Limitations on Transfers
Except if permitted under and in accordance with this Agreement, no Party
will transfer, convey, assign, mortgage or grant an option in respect of or
grant a right to purchase or in any manner transfer, alienate or otherwise
dispose of (in this Article to "Transfer") any or all of its interest in the
Properties and the Other Asset or transfer or assign any of its rights under
this Agreement.
6.2 Prohibited Dispositions
A Party is prohibited from Transferring any of its interest in the
Properties or Other Asset or any of its rights under this Agreement unless:
(a) its interest in the Properties and Other Assets and in its rights
under this Agreement are Transferred together (or, if a portion, in
the same proportion);
(b) such Transfer occurs when such Party is not in default of any of its
covenants and agreements herein contained; and
(c) such Transfer, if it constitutes a Transfer by a Party of a portion of
its interest in the Properties and the Other Assets and in its rights
under this Agreement, has been approved by the other Party, such
approval not to be unreasonably withheld.
6.3 Right of First Offer
If a Party (in this Article the "Transferring Party") wishes to Transfer
all of its interest in the Properties and the Other Assets and in its rights
under this Agreement (in this section, the "Holdings") other than as
contemplated under Section 6.4, then it must prior to any such transfer first
offer to Transfer the Holdings to the other Party for a cash consideration and
upon such other terms and conditions as the Transferring Party deems fit (in
this section, the "Offer"). If the other Party accepts the Offer within the
30-day period following its receipt, then the Transfer will be concluded no
later than 30 days after such acceptance. If the other Party does not accept the
Offer within such 30-day period, then the Transferring Party will be free to
Transfer the Holdings to a third party at any time after the expiry of such
30-day period and prior to the expiry of the succeeding 90-day period, but only
for a cash consideration equal to or greater than the cash consideration stated
in the Offer and upon other terms and conditions no less favourable to the
Transferring Party than those contained in the Offer. If the Transferring
Party's Transfer of the Holdings to the other Party or to a third party is not
concluded prior to the expiry of such 30-day or 90-day period as aforesaid, any
subsequent Transfer by the Transferring Party will be subject to the provisions
of this Section 6.3.
6.4 Exceptions
Nothing in Section 6.3 applies to or restricts in any manner:
(a) a disposition by the Transferring Party of all or a portion of its
interest in the Properties and Other Assets and a transfer or
assignment of a proportionate interest in this Agreement to an
Affiliate of the Transferring Party, provided that such Affiliate
first assumes and agrees to be bound by the terms of this Agreement
and the Underlying Agreements and agrees with the other Party in
writing to retransfer such interests to the Transferring Party before
ceasing to be an Affiliate of the Transferring Party; or
(b) an amalgamation or corporate reorganization involving the Transferring
Party which has the effect in law of the amalgamated or surviving
corporation possessing all the property, rights and interests and
being subject to all the debts, liabilities and obligations of each
amalgamating or predecessor corporation; or
(c) a sale, forfeiture, charge, withdrawal, transfer or other disposition
or encumbrance which is otherwise specifically required or permitted
under this Agreement.
6.5 Conditions of Transfers
As a condition of any Transfer other than to another party, the transferee
must covenant to and agree with the other parties to this Agreement to be bound
by this Agreement, including this Article 6, and prior to the completion of any
such Transfer, the Transferring Party must deliver to the other Party evidence
thereof in a form satisfactory to such other parties. Notwithstanding any such
Transfer, the Transferring Party will remain liable for all of its obligations
hereunder, unless the Holdings have been Transferred to a third party pursuant
to Section 6.3.
ARTICLE 7
FORCE MAJEURE
7.1 Events
Notwithstanding any other provisions contained herein, a Party will not be
liable for its failure to perform any of its obligations under this Agreement
due to a Force Majeure.
7.2 Effect of Force Majeure
All time limits imposed by this Agreement (including, without limitation,
the time within which Expenditures are to be made or Shares are to be delivered)
will be extended by a period equivalent to the period of delay resulting from a
Force Majeure described in Section 7.1.
7.3 Obligation to Remove Force Majeure
A Party relying on the provisions of this Article 7 will take all
reasonable steps to eliminate any Force Majeure and, if possible, will perform
its obligations under this Agreement as far as practical, but nothing herein
will require such Party to settle or adjust any labour dispute or to question or
to test the validity of any law, rule, regulation or order of any duly
constituted court or governmental authority or to complete its obligations under
this Agreement if a Force Majeure renders completion impossible.
7.4 Giving Notice
A Party relying on the provisions of this Article 7 will give notice to the
other Party forthwith upon the occurrence of the Force Majeure and forthwith
after the end of the period of delay when such Force Majeure has been eliminated
or rectified.
ARTICLE 8
CONFIDENTIAL INFORMATION
8.1 Confidential Information
Except as specifically otherwise provided for herein, the parties will keep
confidential all data and information respecting this Agreement and the
Properties and other Asset, and will refrain from using it other than for the
activities contemplated hereunder or publicly disclosing unless required by law
or by the rules and regulations of any regulatory authority or stock exchange
having jurisdiction, or with the consent of the other Party, such consent not to
be unreasonably withheld.
8.2 Information in Public Domain
The provisions of this Article 8 do not apply to information which is or
becomes part of the public domain other than through a breach of the terms
hereof.
8.3 Request to Disclose
Where a request is made for permission to disclose confidential information
hereunder, a reply thereto will be made within two Business Days after receipt
of such request, failing which the Party requesting will be entitled to disclose
such information in the limited circumstances specified in such request as if
such consent had been given.
8.4 News Release
The Parties will consult with each other prior to issuing any press release
or other public statement regarding the Properties or Other Asset or the
activities of the Optionee or the Optionor with respect thereto. In addition,
each Party will obtain prior approval from the other Party, which will not
unreasonably be refused, before issuing any press release or public statement
using the other Party's name or the names of any of the other Party's assignees
or of any of the officers, directors or employees of the other Party or of its
assignees.
ARTICLE 9
ARBITRATION
9.1 Single Arbitrator
Any matter in dispute hereunder will be determined by a single arbitrator
to be appointed by the Parties.
9.2 Prior Notice
Any Party may refer any such matter to arbitration by notice to the other
Party and, within 10 Business Days after receipt of such notice, the Parties
will agree on the appointment of an arbitrator. No person will be appointed as
an arbitrator hereunder unless such person agrees in writing to act.
9.3 No Agreement
If the Parties cannot agree on a single arbitrator as provided in Section
9.2, or if the person appointed is unwilling or unable to act, either Party may
submit the matter to arbitration before a single arbitrator in accordance with
rules for conciliation and arbitration of the British Columbia International
Commercial Arbitration Centre (in this Article, the "Rules").
9.4 Conduct of Arbitration
Except as otherwise specifically provided in this Article 9, an arbitration
hereunder will be conducted in English in accordance with the Rules. The
arbitrator will fix a time and place in Vancouver for the purpose of hearing the
evidence and representations of the Parties and he or she will preside over the
arbitration and determine all questions of procedure not provided for under the
Rules or this Article 9. After hearing any evidence and representations that the
Parties may submit, the arbitrator will make an award and reduce the same to
writing and deliver one copy thereof to each of the Parties. The decision of the
arbitrator will be made within 45 days after his or her appointment, subject to
any reasonable delay due to unforeseen circumstances. The expense of the
arbitration will be paid as specified in the award. The arbitrator's award will
be final and binding upon each of the Parties.
ARTICLE 10
AREA OF INTEREST
10.1 Limitation on Acquisitions
Each of the Parties hereby covenants and agrees with the other Party that
it will not acquire, nor will it permit any Affiliate to acquire, any Mineral
Rights or Surface Rights located wholly or in part within the Area of Interest
unless such Mineral Rights or Surface Rights are made subject to the terms of
this Agreement and the acquiring Party (or, if an Affiliate of a Party has
completed the acquisition, then such Party, in either case in this Article
referred to as the "Acquiring Party") complies with the provisions of this
Article.
10.2 Acquisition of Additional Property
Forthwith upon completing an acquisition of Mineral Rights or Surface
Rights located wholly or in part within the Area of Interest, the Acquiring
Party will give notice thereof to the other Party, setting out the location of
the Mineral Rights or Surface Rights and all information known to the Acquiring
Party and its Affiliates about such Mineral Rights or Surface Rights, the costs
of acquisition and all other pertinent details relating thereto.
Upon receipt of such notice, the notified Party will have a period of 15
days to elect, by notice to the Acquiring Party, to include such Mineral Rights
or Surface Rights in the Properties and make them subject to the terms of this
Agreement. Upon such election such Mineral Rights or Surface Rights will
constitute Additional Property for inclusion in the Properties thereafter for
all purposes of this Agreement.
If the Acquiring Party is the Optionor, then the Optionee will reimburse it
for the acquisition costs that it or its Affiliate has incurred. When paid by
the Optionee in the first instance or reimbursed by the Optionee, the
acquisition costs for any Additional Property will be deemed to constitute
Expenditures hereunder.
10.3 Notice of Rejection
If, within the 15-day period referred to in paragraph 10.3, the notified
Party does not give the notice referred to in paragraph 10.4, it will be deemed
to have consented to the exclusion of the Mineral Rights or Surface Rights in
question from the Area of Interest, which may thereafter be held or dealt with
by the Acquiring Party or its Affiliate free of the terms and conditions of this
Agreement.
10.4 Title to Additional Property
If the Acquiring Party is the Optionee or an Affiliate of the Optionee, the
Mineral Rights or Surface Rights comprised in the Additional Property acquired
will be forthwith registered in the name of or transferred to the Optionor.
Forthwith upon such registration or upon the acquisition of any Additional
Property by the Optionor or an Affiliate of the Optionor, the Optionor will
deliver executed and registrable transfers thereof as contemplated in Section
4.4.
10.5 Further Assurance
Each of the Parties will execute and deliver or cause to be executed and
delivered such further documents and instruments and give such further
assurances as the other may reasonably require to evidence and give effect to
any acquisition, registration or transfer of Mineral Rights or Surface Rights
contemplated in this Article 10.
10.6 Non-Compliance Constitutes Default
Non-compliance with the provisions of this Article 10 by an Affiliate of a
Party will constitute a default under this Agreement by such Party unless such
Party can satisfy the other Party that the Affiliate was acting independently
and at arm's length, without information from or direction by the affiliated
Party and that such affiliated Party could not reasonably have enforced
compliance with the terms hereof by its Affiliate in the circumstances.
ARTICLE 11
NOTICE
11.1 Method
Each notice, consent, demand or other communication (in this Article the
"Notice") required or permitted to be given under this Agreement will be in
writing and may be personally delivered or sent by facsimile to the address or
fax number as set forth in the recitals to this Agreement. A Notice, if so
personally delivered, will be deemed to have been given and received on the date
of actual delivery and, if so given by facsimile, will be deemed to have been
given and received on the date sent, if sent during normal business hours of the
recipient on a Business Day and otherwise on the next Business Day.
11.2 Amending Addresses
Either Party may at any time and from time to time notify the other Party
in accordance with this Article 11 of a change of address or fax number, to
which all Notices will be given to it thereafter until further notice in
accordance with this Section 11.
ARTICLE 12
GENERAL
12.1 Other Activities and Interests
This Agreement and the rights and obligations of the Parties hereunder are
strictly limited to the Properties and the Area of Interest. Each Party will
have the free and unrestricted right to enter into, conduct and benefit from
business ventures of any kind whatsoever, whether or not competitive with the
activities undertaken pursuant hereto, without disclosing such activities to the
other Party or inviting or allowing the other to participate including, without
limitation, involving Mineral Rights or Surface Rights adjoining the Area of
Interest or which previously formed a part of the Properties.
12.2 Entire Agreement
This Agreement and the schedules hereto constitute the entire agreement
between the Parties and supersedes and replaces any preliminary or other
agreement or arrangement, whether oral or written, express or implied, statutory
or otherwise heretofore existing between the Parties in respect of the subject
matter of this Agreement including, without limitation, the letter from the
Optionee to the Optionor dated November 7, 2002. This Agreement may not be
amended or modified except by an instrument in writing signed by each of the
Parties.
12.3 No Waiver
No consent hereunder or waiver of or with respect to any term or condition
of this Agreement will be effective unless it is in writing and signed by the
consenting or waiving Party. No consent or waiver expressed or implied by either
Party in respect of any breach or default by the other in the performance by
such other of its obligations hereunder will be deemed or construed to be a
consent to or a waiver of any other breach or default.
12.4 Further Assurances
The Parties will promptly execute or cause to be executed all documents,
deeds, conveyances and other instruments of further assurance which may be
reasonably necessary or advisable to carry out fully the intent of this
Agreement or to record wherever appropriate the respective interests from time
to time of the Parties in the Properties.
12.5 Manner of Payment
All payments to be made to any Party may be made by cheque or draft mailed
or delivered to such Party at its address for notice purposes as provided
herein, or for the account of such Party at such bank in Canada as the Party may
designate from time to time by notice to the other Party. Such bank or banks
will be deemed the agent of the designating Party for the purposes of receiving,
collecting and receipting such payment.
12.6 Enurement
This Agreement will enure to the benefit of and be binding upon the Parties
and their respective successors and permitted assigns.
12.7 Special Remedies
Each of the Parties agrees that its failure to comply with the covenants
and restrictions set out in Section 4.5, Article 6, Article 8, or Article 10
would constitute an injury and cause damage to the other Party impossible to
measure monetarily. Therefore, in the event of any such failure, the other Party
will, in addition and without prejudice to any other rights and remedies that it
may have at law or in equity, be entitled to injunctive relief restraining,
enjoining or specifically enforcing the provisions of Section 4.5, Article 6,
Article 8, or Article 10 as the case may be, and any Party intending to breach
or which breaches the provisions of Section 4.5, Article 6, Article 8, or
Article 10 hereby waives any defence it may have at law or in equity to such
injunctive or equitable relief.
12.8 Time of the Essence
Time is of the essence in the performance of each obligation under this
Agreement.
12.9 Counterparts and Fax Execution
This Agreement may be executed in any number of counterparts and all such
counterparts, taken together, shall be deemed to constitute one and the same
instrument. This Agreement may be signed and accepted by facsimile.
IN WITNESS WHEREOF this Agreement has been executed as of the date first above
given.
The Corporate Seal of STRONGBOW
RESOURCES INC. was affixed )
in the presence of: )
)
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
------------------------------ )
Authorized Signatory )
) C/S
/s/ ▇▇▇▇ ▇▇▇▇▇▇ )
------------------------------ )
Authorized Signatory )
)
The Corporate Seal of ULSTER MINERALS
LIMITED was affixed in )
the presence of: )
)
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ )
------------------------------ )
Authorized Signatory )
) C/S
/s/ ▇▇▇▇ ▇▇▇▇▇▇ )
------------------------------ )
Authorized Signatory )
)
The Corporate Seal of TOURNIGAN
GOLD CORPORATION was )
affixed in the presence of: )
)
/s/ ▇. ▇▇▇▇▇▇▇▇ )
------------------------------ )
Authorized Signatory )
) C/S
/s/ ▇. ▇▇▇▇▇▇ )
------------------------------ )
Authorized Signatory )
)
SCHEDULE A
to the Agreement dated February ____, 2003 among Strongbow Resources Inc.,
Ulster Minerals Limited and Tournigan Gold Corporation.
PROPERTIES DESCRIPTION
Part I: Mineral Properties
o That portion of the following exploration licence interests contained
within grid references of northern boundary at 387000mN, eastern boundary
at 260000mE, southern boundary at 384000mN, and western boundary at
255000mE :
Crown Licence 174/96018 as renewed for a period of two years commencing
January 2, 2002 and which is subject to the re-issue of the Prospecting
Licence; and
an application for, and any licence interests arising from, the re-issue of
former Prospecting Licence UM 11/96 which has now expired.
Part II: Lands
o Leasehold Interest Folio #TY6105L
Part III: Encumbrances
o An NSR Interest of 2% owed to Summit Exploration Limited in respect of the
Mineral Properties pursuant to an Agreement for the sale and purchase of
the entire issued share capital of Ulster Minerals Limited made between
Summit Exploration and Nickelodeon Menreals Inc. and dated September 15,
1999.
o Leasehold payments of(pound)3,500 annually to the Estate of F. Keanan.
Part IV: Map
For illustrative purposes only, please refer to the map ("Map") attached hereto
and identified as Schedule A that shows the boundary of the Mineral Properties
in relation to the surrounding ▇▇▇▇▇▇ project area. In the event of a conflict
between the apparent boundary of the Mineral Properties as indicated on the Map
and the grid references noted above, the grid references noted above shall
prevail.
[Map of Northern Ireland properties appears here.]
SCHEDULE B
To the Agreement dated February ___, 2003 among Strongbow Resources Inc., Ulster
Minerals Limited and Tournigan Gold Corporation
JOINT VENTURE TERMS
1. Joint Venture Formation and Scope
As set forth in article 5 of the Option Agreement.
2. Participating Interests
(a) Initial interests and initial investments will be as set forth in
article 5 of the Option Agreement, subject to adjustment if a
participant elects not to participate (by simple dilution of
interest--see item 6 below) or, having elected to participate,
defaults in paying its cost share (by double dilution of interest--see
item 6 below).
(b) Provided that a bankable feasibility study has been delivered,
Tournigan will have the option to acquire the remaining participating
interest of Strongbow free and clear of encumbrances at any time that
Strongbow's participating interest has been diluted to 25% (the
"Dilution Date"). The option is exercisable by notice to Strongbow
within 90 days after the Dilution Date and the purchase price will be
paid by the delivery to Strongbow of common shares in Tournigan on the
following basis:
(i) Tournigan shares will be valued at a price per share equal to the
average trading price for Tournigan shares on the TSX for each
trading day during the 90 day period immediately preceding the
date on which the Feasibility Study is delivered to Strongbow;
and
(ii) Strongbow's 25% participating interest will be valued at that
amount which equals 25% of the net present value of the Project
which, for this purpose, means the aggregate estimated net cash
flow from the Project over the life of the mine, assuming the
highest potential cash flow according to the Feasibility Study
and a gold price in US dollars equal to the average of the London
Bullion Market Afternoon Fix for each day on which such quotation
is given during the 180 day period immediately preceding the date
on which the Feasibility Study is delivered to Strongbow.
3. Management Committee
The joint venture will be under the management of a management committee
with representation according to participants' interests, and
decision-making on the basis of a majority vote.
4. Operator
(a) Tournigan will be the first operator and remain so unless its interest
is reduced below 50% or it resigns or is removed for default. Upon
Tournigan ceasing as operator, the participant other than Tounigan
with the highest interest shall be the operator.
(b) The non-operator may refer question of operator default to arbitration
if it is outvoted on a management committee motion to remove the
operator for default.
(c) The operator must keep the property in good standing and free of
encumbrances, comply with laws, and maintain proper books and accounts
and adequate insurance.
(d) The operator must conduct joint venture activities according to
approved programs and budgets, with sole responsibility for
non-approved overruns exceeding 20% on exploration programs and 15% on
development and other programs, and otherwise in accordance with good
mining practices.
(e) The operator will have the right to cash call in advance to cover
anticipated approved program expenditures, including a reasonable
amount of working capital.
(f) The operator's charges for overheads will be: 10% of exploration
costs, reduced to 5% on any single third party contract exceeding
50,000; 12% of construction costs; and 3% of operating costs. This
charge is intended as a reimbursement of the costs of the time
incurred by head office management and support functions in respect of
approved programs on the project, which is not otherwise billed as a
cost. The charge has been established as an estimate of anticipated
administrative costs and on the basis that the party acting as
Operator shall not profit nor suffer loss by virtue of providing these
services.
(g) The operator will have a lien on the non-operator's interest to secure
the non-operator's cost share of expenditures, and the right to
advance the cost share of a party in default.
5. Programs
(a) Prior to a production decision, the operator will submit annual
exploration programs for management committee approval, and will
report on results on a quarterly basis.
(b) Unless a bankable feasibility was delivered prior to the formation of
the joint venture, the operator may propose a program for a bankable
feasibility study at any time.
(c) A development program will be prepared by operator based on an
approved bankable feasibility study.
(d) Management committee approval of a development program will constitute
a production decision.
(e) Each party must finance its own cost share of development costs, with
the right to pledge its interest for such purpose.
(f) After commencement of commercial production, operator will submit
annual operating programs for management committee approval.
6. Dilution
(a) Participants will have an election as to whether to participate in any
approved exploration program or approved development program
(b) Electing to participate in an approved program will make a participant
liable for its cost share of all expenditures for that program.
(c) Electing not to participate in an approved program will result in
straight-line dilution of interest, i.e. the non-contributing party's
interest will be, subject to sub-paragraph (d) below,:
amount contributed and deemed to have been contributed to date by
non-contributing party
amount contributed to date by all parties
and the contributing party's interest will be correspondingly
increased.
(d) A participant's failure to pay its cost share of an approved program
after electing to participate will constitute default and result in
double dilution of interest, i.e. the non-contributing party's
interest will be:
amount contributed prior to default to date by non-contributing party
amount contributed prior to default by all parties + 2x defaulted
amount
and the contributing party's interest will be correspondingly
increased.
(e) Dilution to 10% will effect a deemed surrender of rights to appoint
persons to the management committee or vote on any decisions of the
joint venture, but participants shall continue to have the right to
contribute to, and benefit, from programs based on their interest or
suffer further dilution in accordance with the Joint Venture Agreement
(with forfeiture once diluted to 1%).
(f) There will be no election as to participation in an approved operating
program.
7. Disposition of Production
(a) Each participant will have the right and obligation to take production
in kind, but is free to make separate arrangements with operator to
market its share.
(b) The operator will be free to sell the share of production of any
participant who fails to take its share in kind or make arrangements
for sale, deducting its costs and expenses from the proceeds
8. Transfers of Interests
(a) Transfer provisions on the same terms as article 6 of the Option
Agreement.
(b) No encumbrances of any interest will be permitted except for financing
of development and then subject to the joint venture agreement and the
operator's lien
9. Withdrawal and Winding Up
No withdrawal by a party or winding up of the joint venture will be
permitted without adequate payment of or security for reclamation and
closure costs.
10. Dispute Resolution
Arbitration administered by the British Columbia International Commercial
Arbitration Centre.
11. Other
(a) Area of interest on the same terms as article 10 of the Option
Agreement
(b) Force majeure
(c) Confidentiality
(d) British Columbia law.