LAKE OWEN OPTION AGREEMENT
BETWEEN
GENERAL MINERALS CORPORATION
AND
TREND MINING COMPANY
July 27, 1999
TABLE OF CONTENTS
Page No.
ARTICLE I DEFINITIONS........................................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES....................................5
2.1 CAPACITY OF THE PARTIES................................................5
2.2 DISCLOSURES............................................................5
2.3 TREND REPRESENTATION AND WARRANTIES....................................5
2.4 GENERAL MINERALS REPRESENTATIONS AND WARRANTIES........................6
2.5 OWNERSHIP..............................................................6
ARTICLE III PURPOSES AND TERM................................................7
3.1 BINDING EFFECT.........................................................7
3.2 GENERAL................................................................7
3.3 PURPOSES...............................................................7
3.4 EFFECTIVE DATE AND TERM................................................7
ARTICLE IV RELATIONSHIP OF THE PARTIES.......................................8
4.1 NO PARTNERSHIP.........................................................8
4.2 OTHER BUSINESS OPPORTUNITIES...........................................8
4.3 TRANSFER OR TERMINATION OF RIGHTS......................................8
4.4 IMPLIED COVENANTS......................................................8
4.5 TRANSFER OF ASSETS.....................................................8
4.6 SERVICE AGREEMENTS.....................................................8
4.7 FUNDING................................................................9
ARTICLE V OPTION.............................................................9
5.1 GRANT OF OPTION........................................................9
5.2 OBLIGATIONS............................................................9
5.3 OPTION PAYMENTS AND CONSIDERATIONS....................................10
5.4 DEFAULT...............................................................11
5.5 EXERCISE OF OPTION....................................................11
ARTICLE VI FUNDING OF EXPLORATION EXPENDITURES DURING OPTION PERIOD.........11
6.1 TREND TO PAY EXPLORATION EXPENDITURES AND REIMBURSE PROPERTY PAYMENTS.11
6.2 COORDINATION AND COOPERATION..........................................12
6.3 FINANCING.............................................................12
ARTICLE VII OPERATIONS DURING THE OPTION PERIOD.............................12
7.1 OPERATOR AND ADVISORY COMMITTEE TO TREND'S BOARD OF DIRECTORS.........12
7.2 APPROVAL OF PROGRAMS AND BUDGETS......................................13
7.3 SUBSEQUENT PROGRAM DURATION...........................................13
7.4 MEETING PROCEDURE.....................................................13
7.5 GENERAL MINERALS TO HAVE LEGAL CARRIAGE...............................13
ARTICLE VIII DUTIES OF OPERATOR.............................................14
8.1 OPERATOR DURING THE OPTION PERIOD.....................................14
8.2 POWERS AND DUTIES OF OPERATOR.........................................14
8.3 STANDARD OF CARE......................................................16
ARTICLE IX PROGRAMS AND BUDGETS.............................................16
9.1 OPERATIONS PURSUANT TO PROGRAMS AND BUDGETS...........................16
i
9.2 PRESENTATION OF PROGRAMS AND BUDGETS..................................16
9.3 REVIEW AND APPROVAL OF PROPOSED PROGRAMS AND BUDGETS..................16
9.4 BUDGET OVERRUNS; PROGRAM CHANGES......................................17
ARTICLE X AUDIT.............................................................17
10.1 AUDITS..............................................................17
ARTICLE XI WITHDRAWAL AND TERMINATION.......................................17
11.1 TERMINATION BY EXPIRATION OR AGREEMENT..............................17
11.2 WITHDRAWAL..........................................................17
11.3 CONTINUING OBLIGATIONS AND ENVIRONMENTAL LIABILITIES................18
11.4 DISPOSITION OF ASSETS ON TERMINATION................................18
11.5 NON-COMPETE COVENANTS...............................................18
11.6 RIGHT TO DATA AFTER TERMINATION.....................................18
11.7 CONTINUED AUTHORITY.................................................18
ARTICLE XII ACQUISITIONS WITHIN AREA OF INTEREST............................19
12.1 ACQUISITION WITHIN AREA OF INTEREST.................................19
12.2 ACQUISITIONS DURING THE OPTION PERIOD...............................19
ARTICLE XIII ABANDONMENT AND SURRENDER OF PROPERTIES........................20
13.1 SURRENDER OR ABANDONMENT OF PROPERTIES..............................20
13.2 REACQUISITION.......................................................20
ARTICLE XIV TRANSFER OF INTEREST............................................20
14.1 GENERAL.............................................................20
14.2 LIMITATIONS ON FREE TRANSFERABILITY.................................20
ARTICLE XV CONFIDENTIALITY..................................................22
15.1 GENERAL.............................................................22
15.2 EXCEPTIONS..........................................................22
15.3 DRAFT FOR COMMENT...................................................22
15.4 NOTICE REQUIRED.....................................................22
15.5 DURATION OF CONFIDENTIALITY.........................................23
ARTICLE XVI GUARANTEE.......................................................23
16.1 GENERAL MINERALS GUARANTEE OF ITS AFFILIATES........................23
16.2 TREND GUARANTEE OF ITS AFFILIATES...................................23
ARTICLE XVII GENERAL PROVISIONS.............................................23
17.1 NOTICES AND PAYMENT.................................................23
17.2 WAIVER..............................................................24
17.3 MODIFICATION........................................................24
17.4 FORCE MAJEURE.......................................................24
17.5 GOVERNING LAW.......................................................25
17.6 ARBITRATION.........................................................25
17.7 FURTHER ASSURANCES..................................................25
17.8 SURVIVAL OF TERMS AND CONDITIONS....................................25
17.9 ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS............................25
17.10 DOLLARS.............................................................26
17.11 COUNTERPARTS........................................................26
ii
EXHIBIT "A"
EXHIBIT "B"
iii
LAKE OWEN OPTION AGREEMENT
THIS AGREEMENT is made effective as of the 27th day of July, 1999 (the
"Effective Date"), regardless of the dates upon which it actually is signed by
the Parties hereto, between General Minerals Corporation ("GENERAL MINERALS"), a
United States corporation incorporated under the laws of Delaware and doing
business in Colorado as Colorado General Minerals Corporation, and Trend Mining
Company ("TREND"), a United States corporation incorporated under the laws of
Montana. Pursuant to this agreement, GENERAL MINERALS grants TREND an option
(the "Option") to earn a one hundred percent (100%) interest in the Lake Owen
Project (the "Project"), located in Albany County, Wyoming, U.S.A. The Project
is comprised of such mineral rights as more particularly described in Exhibit
"A" hereto and additional mineral rights, if any, acquired within the Area of
Interest defined also in Exhibit "A"
RECITALS
A. It is the intention of the Parties to this Agreement to set out herein the
general scheme of the Project, the relationship amongst and the rights and
obligations of each of the Parties to this Agreement relating to the
ongoing exploration and development of the Project.
This Agreement deals with the terms of the Option for TREND to earn-in to
the Project, the obligations of TREND to fund expenditures relating to the
exploration, development and mining of mineral resources on the
Properties, initially until the Earn-In of TREND is complete.
B. Upon completion of the Earn-In, GENERAL MINERALS and TREND will arrange
the transfer of the Project, the Properties, the Assets so that TREND will
own all the interests in certain Properties known as the Lake Owen
Project, which Properties are described in Exhibit A and defined in
ARTICLE I of this Agreement, as well as all the Assets and additional
Mineral Interests that may have been acquired and are the subject matter
of this Agreement on the Vesting Date.
C. TREND wishes to participate with GENERAL MINERALS in the exploration,
evaluation, development and mining of mineral resources within the
Properties or any other properties forming the Lake Owen Project pursuant
to the terms of this Agreement, and GENERAL MINERALS is willing to grant
such right to TREND in the form of the right to receive one hundred
percent (100%) of the Lake Owen Project as provided in this Agreement.
D. TREND and GENERAL MINERALS each agree to guarantee the performance by any
of their respective subsidiaries and affiliates of their obligations under
this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein, the Parties agree as follows:
ARTICLE I
DEFINITIONS
"ACCOUNTING PROCEDURE" means the procedures set forth in Exhibit "B".
"ADVISORY COMMITTEE" means the committee to be formed as provided in
Section 7.1.
"ACQUIRING PARTY" means the Party who has acquired additional interests within
the Area of Interest as more particularly described in Section 12.1 of this
Agreement.
"ACTUAL EXPENDITURES" mean all expenditures of TREND after the Effective Date
shall be TREND's Actual Expenditures.
"AFFILIATE" means any person, partnership, joint venture, corporation or other
form of enterprise that directly or indirectly controls, is controlled by, or is
under common control with, GENERAL MINERALS or TREND. 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.
"AGREEMENT" means this Lake Owen Option Agreement, including all amendments and
modifications thereof, and all schedules and exhibits, which are hereby
incorporated herein by reference.
"AREA OF INTEREST" means the area defined as Sections, Townships and Ranges in
Exhibit "A".
"ASSETS" means the assets of the Lake Owen project and includes without
limitation the Properties, Products and all other real and personal property,
tangible and intangible, held or to be held for the benefit of the Project.
"BUDGET" means a detailed estimate of all costs to be incurred by the Operator
with respect to a Program.
"DEEMED EXPENDITURES" means the amount determined in accordance with the
provisions in Exhibit "B" of this Agreement.
"DEVELOPMENT" means all preparation other than Exploration for the removal and
recovery of Products, including the construction or installation of a mill or
any other improvements to be used for the mining, handling, milling, processing
or other beneficiation of Products.
"EARN-IN" means completion of the Initial Contribution by TREND.
"EFFECTIVE DATE" means July 27, 1999.
"EXPLORATION" means all activities directed toward ascertaining the existence,
location, quantity, quality or commercial value of deposits of Products.
2
"EXPLORATION EXPENDITURES" means all cash, expenses and obligation spent or
incurred by the Operator on Operations and shall include, but not be limited to,
all rentals, fees, option payments and assessment work required to keep the Lake
Owen Option Agreement and the Lode Claims comprising the Property in good
standing, claims staking and relocation within the "Area of Interest," all
expenditures for geophysical, geological, geochemical, analytical and laboratory
work, all surveys, drilling, assaying, metallurgical testing, engineering, and
all other expenditures directly benefiting the Project. "FORCE MAJEURE" shall
have the meaning ascribed to it in Section 17.1.
"GENERAL MINERALS" means General Minerals Corporation, a United States
corporation incorporated under the laws of Delaware and doing business in
Colorado as Colorado General Minerals Corporation, its successors and assigns.
"INITIAL CONTRIBUTION" means those funding advances to be made by TREND and
other obligations of TREND set out in Articles V and VI required to maintain and
exercise the Option and complete the Earn-In.
"LODE CLAIMS" means the Lode Claims set out in Exhibit A hereto.
"MINERAL INTEREST" means the Lode Claims, any applicable mining easement and
other mining rights or interests more particularly set out in Exhibit "A" hereto
as at the date of this Agreement and shall include those additional Mineral
Interest which may be substituted, supplemented or acquired to form part of the
Lake Owen Project during the term of the Agreement.
"MINING" means the mining, extracting, producing, handling, milling or other
processing of Products.
"OPERATIONS" means the activities on or in relation to the Properties carried
out under this Agreement including, without limitation, Exploration,
Development, financing Mining, acquisition of additional Properties in the Area
of Interest, and marketing of Products.
"OPERATOR" means the person or entity appointed under Article XV to manage
Operations, or any successor Operator, whether during the Option Period or
thereafter.
"OPTION" means the option granted to TREND in accordance with Article V.
"OPTION PERIOD" means the 3-year period beginning on the Effective Date and
ending on the third anniversary of the Effective Date.
"PARTY" AND "PARTIES" mean the Parties to this Agreement individually or
collectively.
"PRODUCTS" means all ores, minerals, mineral resources concentrates or other
saleable materials produced from the Properties under this Agreement.
"PROGRAM" means a description in reasonable detail of Operations to be conducted
and objectives to be accomplished by the Operator for a specified period.
3
"PROJECT" shall mean the conduct of work under approved Programs and Budgets
relating to the Properties for the purpose of Operations.
"PROJECT ACCOUNT" shall mean for the account of the Lake Owen Project as funded
by TREND during the Option Period.
"PROPERTY", "PROPERTIES" OR "LAKE OWEN PROPERTY" means the Mineral Interest in
the Lake ▇▇▇▇ ▇▇▇▇ Claims and additional Lode Claims acquired within the Area of
Interest, which are acquired and held subject to this Agreement. For greater
certainty, it is agreed and acknowledged that within the Property there are
geographic areas that are owned by third parties.
"PROPERTY PAYMENTS" means all payments or expenditures required pursuant to the
Lake Owen Option Agreement and all payments or expenditures required to maintain
title to the Property or Mining Interest in the Properties, including without
limitation to the government.
"ROYALTY" means the 4% Net Profits Interest royalty ("4% NPI") payable to
Chevron Corporation to the extent it may be entitled to a 4% NPI royalty from a
portion of the Project. The balance of the 4% NPI shall be payable to GENERAL
MINERALS. The land position, specified in Exhibit "A", acquired by TREND on or
before that certain Confidentiality Agreement signed between TREND and GENERAL
MINERALS shall not be subject to this clause. After having earned-in and
becoming a 100 % owner of the Lake Owen Property, TREND shall owe a total of 4 %
NPI to either Chevron or GENERAL MINERALS in any claim or any part of the "Lake
Owen Property" as defined per agreement.
"TECHNICAL COMMITTEE" means the committee formed of two members nominated by
each of GENERAL MINERALS and TREND respectively, to approve all Programs and
Budgets of the Project during the Option Period with the powers and
responsibilities set out in Article VII.
"TRANSFER" means sell, grant, assign, encumber, pledge or otherwise commit or
dispose of.
"TREND" means Trend Mining Company, a company incorporated under the laws of
Montana, and its successors and assigns.
"VESTING DATE" means the date on which TREND completes the Earn-In and exercises
the Option and TREND is entitled to 100% of the Lake Owen project.
"WORK COMMITMENT" means the commitment of TREND as set forth in Section 5.1 (a)
to fund Exploration Expenditures totalling not less than seven hundreds and
fifty thousands dollars (US$750,000) in the Work Commitment Period.
"WORK COMMITMENT PERIOD" means the period beginning on the Effective Date and
ending on the third anniversary of the Effective Date.
"WORK EXPENDITURE NOTICE" shall mean the notice from an authorized officer of
TREND stating that the expenditures required under Section 5.1 have been
completed as contemplated in Subsection 5.5(a).
4
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 CAPACITY OF THE PARTIES
Each of the Parties represents and warrants as of the Effective Date and
as of the date this Agreement is actually signed as follows:
(a) That it is a corporation duly incorporated and in good
standing in its jurisdiction of incorporation and that it is
qualified to do business and is in good standing in those
jurisdictions where necessary in order to carry out the
purposes of this Agreement;
(b) That it has the capacity to enter into and perform this
Agreement and all transactions contemplated herein and that
all corporate and other actions required to authorize it to
enter into and perform this Agreement have been properly
taken;
(c) That it will not breach any other agreement or arrangement by
entering into or performing this Agreement; and
(d) That this Agreement has been duly executed and delivered by it
and is valid and binding upon it in accordance with its terms.
2.2 DISCLOSURES
Each of the Parties represents and warrants as of the Effective Date and
as of the date this Agreement is actually signed that it is unaware of any
material facts or circumstances which have not been disclosed in this Agreement,
which should be disclosed to any other Party in order to prevent the
representations in this Article II from being materially misleading.
2.3 TREND REPRESENTATION AND WARRANTIES
(a) TREND's financial disclosure to GENERAL MINERALS is complete and
accurate.
(b) Since the date of the financial statement disclosed to GENERAL
MINERALS, there have been no adverse material events that would
affect TREND's intention and ability to fulfill all obligations as
set forth in this Agreement.
(c) For the purpose of issuing the shares of TREND to GENERAL MINERALS
pursuant to this Agreement, TREND shall timely provide factual and
accurate tabulation of total issued and outstanding shares of common
stock of TREND as of the Effective Date.
5
2.4 GENERAL MINERALS REPRESENTATIONS AND WARRANTIES
GENERAL MINERALS represents and warrants as of the Effective Date and as
of the date this Agreement is actually signed that:
(a) GENERAL MINERALS has title to the Property, subject to the paramount
title of the United States of America and the terms of any
underlying rights and royalties as set out in this Agreement, and
that it has the authority to consummate the transaction contemplated
in this Agreement;
(b) GENERAL MINERALS has paid all rentals, taxes, assessments, charges,
fees and other levies imposed upon or required with respect to the
Project, Properties and Assets, and has filed all returns and
reports, and made all payments required.
(c) GENERAL MINERALS has provided TREND with all relevant data and
information with respect to the Properties and has not failed to
disclose any material, data or information;
(d) GENERAL MINERALS is not aware of any actual, pending, or threatened
adverse claims, lawsuits or administrative actions affecting the
Project, the Assets and the Properties; and
(e) Prior to the Effective Date, all activities undertaken on the
Project, the Assets and the Properties have been in accordance with
the laws of the United States and sound mining practices.
2.5 OWNERSHIP
GENERAL MINERALS is the recorded and beneficial owner of the Properties
and Assets until the completion of the Earn-In. Following completion of the
Earn-In, it is intended that as soon as practicable the Properties and Assets
will be transferred to TREND, and that until all steps have been taken, the
Parties to this Agreement will take all reasonable steps to accomplish the
intended transfer as contemplated by this Agreement. Until the Properties and
Assets are transferred upon completion of the Earn-In, GENERAL MINERALS shall
hold the Properties and Assets for the benefit of TREND.
6
ARTICLE III
PURPOSES AND TERM
3.1 BINDING EFFECt
TREND and GENERAL MINERALS agree to be bound by this Agreement from the
Effective Date and that this agreement shall replace any prior understandings or
agreements including the Letter Agreement to Acquire Lake Owen Project dated
July 27, 1999. Each Party agrees to bear its own costs for the negotiation of
this Agreement.
3.2 GENERAL
This Agreement is to set forth requirements of TREND to maintain and
exercise the Option and complete the Earn-In and to set forth the various rights
and obligations of TREND following completion of the Earn-In and thereafter.
GENERAL MINERALS and TREND agree that all of their rights and all of the
Operations on or in connection with the Properties, Assets or the Area of
Interest shall be subject to and governed by this Agreement.
3.3 PURPOSES
The purpose and scope of the association of GENERAL MINERALS and TREND
until completion of the Earn-In shall be to undertake Operations with a view to
initially conducting exploration of the area covered by the Properties to fully
delineate all mineral showings and ultimately to delineate one or more ore
deposits containing precious metals or other metals or both amenable to
commercial development, to thereafter undertake further exploration drilling and
sampling to confirm the size and extent of the potential ore deposits and
undertake development and mining and metallurgical testwork to analyze
alternative mining and milling methods, recovery rates, grades and products
related to commercial exploitation of the ore deposits delineated.
3.4 EFFECTIVE DATE AND TERM
The Effective Date of this Agreement shall be July 27, 1999. The term of
this Agreement shall be the earlier of three years, exercise of the Option by
TREND, and mutual agreement by the parties.
7
ARTICLE IV
RELATIONSHIP OF THE PARTIES
4.1 NO PARTNERSHIP
Nothing contained in this Agreement shall be deemed to constitute either
Party the partner or the venturer of the other, or, except as otherwise herein
expressly provided, to constitute either Party the agent or legal representative
of the other, or to create any fiduciary relationship between them. The Parties
do not intend to create, and this Agreement shall not be construed to create,
any mining, commercial or other partnership or joint venture. Neither Party, nor
any of its directors, officers, employees, agents and attorneys, or Affiliates,
shall act for or assume any obligation or responsibility on behalf of the other
Party, except as otherwise expressly provided herein, and any such action or
assumption by a Party's directors, officers, employees, agents and attorneys, or
Affiliates shall be a breach by such Party of this Agreement. The rights,
duties, obligations and liabilities of the Parties shall be several and not
joint or collective. Each Party shall be responsible only for its obligations as
herein set out and shall be liable only for its share of the costs and expenses
as provided herein, and it is the express purpose and intention of the Parties
that their ownership of Assets and the rights acquired hereunder shall be as
tenants in common.
4.2 OTHER BUSINESS OPPORTUNITIES
Except as expressly provided in this Agreement, each Party shall have the
right independently to engage in and receive full benefits from business
activities, whether or not competitive with the Operations, without consulting
any other Party. The doctrines of "corporate opportunity" or "business
opportunity" shall not be applied to any other activity, venture, or operation
of any Party, and no Party shall have any obligation to any other Party with
respect to any opportunity to acquire any property outside the Area of Interest
at any time, or within the Area of Interest after the termination of this
Agreement.
4.3 TRANSFER OR TERMINATION OF RIGHTS
Except as otherwise provided in this Agreement, neither GENERAL MINERALS
nor TREND shall transfer all or any part of its interest in the Project, the
Properties, the Assets or this Agreement or otherwise permit or cause such
interests to terminate.
4.4 IMPLIED COVENANTS
There are no implied covenants contained in this Agreement other than
those of good faith and fair dealing.
4.5 TRANSFER OF ASSETS
GENERAL MINERALS shall cause the transfer of all of the Property and
Assets and the Lake Owen Option Agreement to TREND upon completion of the
Earn-In by TREND. Until the Properties and Assets are transferred upon
completion of the Earn-In, GENERAL MINERALS shall hold the Properties and Assets
for the benefit of GENERAL MINERALS and TREND as their interests appear in this
Agreement.
4.6 SERVICE AGREEMENTS
Subject to approval by the Technical Committee and providing that any
amounts to be included in Exploration Expenditures are based on reasonable,
customary and actual direct expenses attributable to the Project, areas or
properties, TREND shall be permitted to enter into such service agreements, as
may be necessary or desirable to conduct the Programs relating to Operations
during the Option Period.
8
4.7 FUNDING
TREND shall fund all Programs relating to Operations during the Option
Period until the completion of the Earn-In.
ARTICLE V
OPTION
5.1 GRANT OF OPTION
Colorado General Minerals Corporation, a wholly owned subsidiary of
GENERAL MINERALS, shall grant to TREND the Option to acquire a one-hundred
percent (100%) interest in the Project, as set forth below. Such Option shall be
subject to the paramount title of the United States of America and the terms of
any underlying rights and royalties as set out in this letter agreement. The
term of the Option shall be three (3) years (the "Option Period") from the date
of the "Effective Date" by fulfillment of the following obligations of TREND:
(a) TREND shall solely make all Exploration Expenditures on, and for the
benefit of, the Project ("Work Commitment") of not less than
US$750,000 by the third anniversary of the Effective Date, with
no less than US$150,000 of Exploration Expenditures being made
within the first twelve (12) months following the Effective
Date. If there is any deficiency in required Exploration
Expenditures in any required time period, TREND may pay 60 % of
such deficiency in US dollars to GENERAL MINERALS as the
fulfillment of TREND's obligation. Such payment shall be paid
within 60 days at the end of the time period in question. If the
Exploration Expenditures are not completed as set forth above,
the Option shall terminate automatically and TREND shall have no
further rights or interests in the Project, and the parties
shall have no further obligation to each other.
(b) After the first Anniversary of the Effective Date, TREND may
terminate the Option Agreement at any time, upon sixty (60) days
written notice to GENERAL MINERALS. It is agreed and acknowledged
that an effective termination notice is to coincide as closely as
possible with the completion of an approved Program and Budget.
(c) It is understood and agreed that excess Exploration Expenditures in
any one year may be carried forward to any subsequent year but in
any event TREND shall, in each year, make payments sufficient to
make all Property Payments.
5.2 OBLIGATIONs
TREND shall be obligated during the Option Period to:
(a) Conduct activities as a prudent operator in accordance with
Section 8.3; and
9
(b) Operate at the direction of the Technical Committee.
5.3 OPTION PAYMENTS AND CONSIDERATIONS
(a) TREND shall pay GENERAL MINERALS a total of US$40,000 in cash in
four (4) equal installments: $10,000 within 20 days following the
Effective Date, and three quarterly installments ($10,000 each)
following the Effective Date. Payment shall be by wiring within 48
hours of due date. Such payments by TREND shall not be included as
"Exploration Expenditures" or "Work Commitment" as the terms are
defined in this Agreement.
(b) Subject to applicable Montana Corporate regulations, TREND shall
issue to GENERAL MINERALS 715,996 shares of common stock, which
represents twenty five (25) % of the issued common stock of
TREND on the Effective Date. The number of shares to be issued
to GENERAL MINERALS is to be adjusted in the future if the
tabulation of shares on the Effective Date is not correct.
Additionally, as of the Effective date, for all shares TREND
owed but not yet issued as a result of debts, loans, notes
payable or TREND's liabilities, which are payable in Trend's
shares, 25% of such yet to-be-issued shares will be issued to
GENERAL MINERALS. All common stock shares issued to GENERAL
MINERALS shall be duly authorized, validly issued and
outstanding, fully paid, non-assessable, previously unissued,
and free and clear of all liens and encumbrances or restrictions
on sale and free and clear of all pre-emptive rights.
Furthermore: 1) said common stock held by GENERAL MINERALS shall
not be diluted by subsequent changes to TREND's capital
structure, 2) GENERAL MINERALS shall have the right to
participate on no less than a proportionate basis in any future
stock offerings of TREND and 3) TREND shall agree to list or
register, as the case may be, any and all the shares held be
GENERAL MINERALS in the event of a public listing or
registration of securities by TREND. TREND shall bear all costs
and expenses of any regulatory filings or registrations
associated with the issuance, registration or listing of any of
the shares to be issued to GENERAL MINERALS pursuant to this
Subsection 5.3 (b).
If applicable SEC rules are required, stock issued to GENERAL
MINERALS shall bear applicable restrictions pursuant to SEC Rule 504,
including rules in effect that apply to shareholders controlling 10% or
more of a public traded company. With regard to any restriction on TREND's
stock to be issued to GENERAL MINERALS, TREND agrees to issue all stock
free of any restriction except when prohibited by law.
(c) Upon TREND's completion of the Earn-In, GENERAL MINERALS shall
designate 25% of the Board members for TREND's Boards of Directors at GENERAL
MINERALS' option.
(d) In 1999, TREND shall contract with GENERAL MINERALS and conduct
certain minimum amounts of work at Lake Owen, including but not limited to a
geophysical survey in the amount of $15,000. However, GENERAL MINERALS agrees to
work with TREND with regard to the type, methodology and
10
instrumentation of the geophysical survey. If GENERAL MINERALS' in-house
geophysical capability is not appropriate for the Lake Owen planned survey,
TREND may contract others to do the job. If the geophysical survey is contracted
with GENERAL MINERALS in 1999, fieldwork may be completed by May 2000.
5.4 DEFAULT
Subject to the terms of Section 17.4, if TREND fails to perform any of the
obligations specified in Sections 5.1, 5.2 and 5.3 required to maintain the
Option on the date called for such performance hereunder, GENERAL MINERALS may
give a written notice (the "Default Notice") specifying the due date and the
obligation not performed and if performance or payment in full is not received
within thirty (30) days of the Default Notice, the Option shall expire upon the
expiration of five (5) days after the receipt by TREND of a termination notice
unless TREND cures such default, and TREND shall have no right, title or
interest of any kind whatsoever in the Property, the Lake Owen Option Agreement,
the Lode Claims or this Agreement from and after that date.
5.5 EXERCISE OF OPTION
On or before the end of the Option Period, TREND shall be entitled to
exercise the Option, upon fulfillment of the obligations set forth in Sections
5.1, 5.2 and 5.3. The following will evidence satisfaction of the completion of
the exercise of the Option:
(a) In respect of Section 5.1, receipt of a written notice (the "Work
Commitment Notice") from an authorized officer of TREND, summarizing
Exploration Expenditures, stating that the minimum Exploration
Expenditures including the First Year's Commitment and the total
commitments of Exploration Expenditures thereafter required during
the Option Period have been completed;
(b) Receipt of a written notice (the "Option Payments and
Considerations") from an authorized officer of TREND, summarizing
Option Payments and Considerations, stating that the payments
required pursuant to Section 5.3 during the Option Period have been
completed.
ARTICLE VI
FUNDING OF EXPLORATION EXPENDITURES DURING OPTION PERIOD
6.1 TREND TO PAY EXPLORATION EXPENDITURES AND REIMBURSE PROPERTY PAYMENTS
During the Option Period, TREND shall pay for all Exploration Expenditures
occurring after the Effective Date until it has completed the Initial
Contribution. TREND, in accordance with the terms of ARTICLE V to maintain the
Option, will fund the Work Commitment so long as it
11
wishes to maintain the Option in good standing and will fund annual and/or total
Exploration Expenditures in accordance with Article V. TREND will also pay or
reimburse GENERAL MINERALS for all payments made to acquire and/or maintain
title to the Properties or Mining Interest in the Properties from the Effective
Date. Such payments by TREND shall be included in Exploration Expenditures.
6.2 COORDINATION AND COOPERATION
During the Option Period, to the greatest extent practicable, TREND shall
use GENERAL MINERALS' personnel in connection with the exploration and
development of the Project. Services provided and expenses incurred by GENERAL
MINERALS on behalf of TREND shall be charged to TREND at actual cost, including
reasonable allocations of direct overhead expenses. Payments by TREND for such
services and expenses shall be included in Exploration Expenditures.
6.3 FINANCING
From time to time, GENERAL MINERALS may bring investors to TREND or assist
TREND with project funding. In consideration for said financing efforts, GENERAL
MINERALS shall receive a fee customarily paid for similar efforts or
transactions.
ARTICLE VII
OPERATIONS DURING THE OPTION PERIOD
7.1 OPERATOR AND ADVISORY COMMITTEE TO TREND'S BOARD OF DIRECTORS
During the Option Period, TREND shall be the Operator and shall manage a
program set out by the Technical Committee. TREND shall, upon GENERAL MINERALS'
request, form an advisory committee to TREND's board of directors (the "Advisory
Committee"). The Advisory Committee shall consist of five members, two of which
shall be designed by GENERAL MINERALS. Subject to approval by GENERAL MINERALS,
the Chairman shall be designated by TREND during and after the option period,
during which TREND exercises Option and owns one hundred percent (100%) of the
Lake Owen Project in accordance with this Agreement.
TECHNICAL COMMITTEE
The Technical Committee shall operate only during the Option Period.
Subject to Section 7.2, TREND shall manage exploration activities on the
Project. Decisions regarding exploration activities, including establishing
budgets, accounting policies and procedures, staffing and hiring employees, or
undertaking other commitments, shall be made following consultation with a
Project technical committee (the "Technical Committee"). The Technical Committee
shall be composed of two (2) members from TREND and two (2) members from
12
GENERAL MINERALS. Each member shall have an equally weighted vote on matters
coming before the Technical Committee.
7.2 APPROVAL OF PROGRAMS AND BUDGETS
During the Option Period, all Programs and Budgets and other decisions
shall be approved by the Technical Committee and if no consensus is achieved at
any meeting of the Technical Committee on any matter that comes before the
Technical Committee, the Technical Committee shall adjourn for 30 days to
reconsider same and if the members remain deadlocked after 30 days, TREND shall
have the deciding vote.
7.3 SUBSEQUENT PROGRAM DURATION
It is the intention of the Parties that each subsequent Program of
Exploration Expenditures submitted by the Operator for consideration by the
Technical Committee will cover the next logical step in the exploration and
analysis of the Property and is expected to cover at least a six (6) month time
period.
7.4 MEETING PROCEDURE
Any meeting of the Technical Committee may be held with one or more
members participating by means of such telephone, electronic or other
communication facilities as may be permitted from time to time. For greater
certainty, resolutions of the Technical Committee may be evidenced by an
instrument in writing signed on behalf of all of the members. Any Party may call
a special meeting of the Technical Committee upon thirty (30) days notice to the
Operator and the other Parties. In case of emergency, twenty-four (24) hours
notice of a meeting shall suffice. Each notice of a meeting shall include an
itemized agenda prepared by the Operator in the case of a regular meeting, or by
the Party calling the meeting in the case of a special meeting, but any matters
may be considered with the consent of all members. The Operator shall prepare
minutes of all meetings and shall distribute copies of such minutes within
thirty (30) days after the meeting. The minutes, when signed on behalf of all
members, shall be the official record of the decisions made by the Technical
Committee and shall be binding on the Operator and the Parties.
7.5 GENERAL MINERALS TO HAVE LEGAL CARRIAGE
Notwithstanding any other provision in this Agreement, it is agreed and
acknowledged by TREND that GENERAL MINERALS shall, during the Option Period,
have exclusive carriage of all legal title matters and dealings with respect to
the Lake Owen Option Agreement and compliance with their terms and any dealings
with third parties in respect of title or the Lake Owen Option Agreement. Until
the Properties and Assets are transferred upon completion of the Earn-In,
GENERAL MINERALS shall hold the Properties and Assets for the benefit of GENERAL
MINERALS and TREND as their interests appear in the Agreement. The related costs
for this provision, including required payment to BLM (Bureau of Land
Management), during the Option Period shall be paid or reimbursed by TREND and
charged to Exploration Expenditures.
13
ARTICLE VIII
DUTIES OF OPERATOR
8.1 OPERATOR DURING THE OPTION PERIOD
TREND shall be the Operator, reporting to the Technical Committee, with
overall management responsibility for Operations during the Option Period.
8.2 POWERS AND DUTIES OF OPERATOR
Subject to the terms and provisions of this Agreement, the Operator shall
have the following powers and duties that shall be discharged in accordance with
adopted Programs and Budgets:
(a) The Operator shall manage, direct and control Operations.
(b) The Operator shall implement the decisions of the Technical
Committee, shall make all expenditures necessary to carry out
adopted Programs, and shall promptly advise the Technical Committee,
who in turn will advise Trend's board of directors and the Advisory
Committee.
(c) The Operator shall: (i) purchase or otherwise acquire all material,
supplies, equipment, water, utilities and services required for
Operations, such purchases and acquisitions to be made on the
best terms available, taking into account all of the
circumstances; (ii) obtain such customary warranties and
guarantees as are available in connection with such purchases
and acquisitions; and (iii) keep the Assets free and clear of
all liens and encumbrances, except for those existing at the
time of, or created concurrent with, the acquisition of such
Assets, or mechanic's or material men's liens which shall be
released or discharged in a diligent matter, or liens and
encumbrances specifically approved by the Technical Committee.
(d) In no event shall the Operator permit or allow title to the Assets
to be lost as the result of the non-payment of any taxes,
assessments or like charges; and shall do all other acts reasonably
necessary to maintain the Assets, except as provided in Section 7.6
with respect to GENERAL MINERALS' carriage of certain matters.
(e) The Operator shall: (i) apply for all necessary permits, licenses
and approvals; (ii) comply with all applicable laws and
regulations; (iii) notify promptly the Technical Committee of
any allegations of substantial violation thereof; and (iv)
prepare and file all reports or notices required for Operations.
The Operator shall not be in breach of this provision if a
violation has occurred in spite of the Operator's good faith
efforts to comply, and the Operator has timely cured or disposed
of such violation through performance, or payment of fines and
penalties. For greater certainty, in respect of Subsections
8.2(c), (d) and (e)
14
during the Option Period, TREND shall be responsible for title,
property and permitting issues so long as TREND provides the
funding.
(f) The Operator shall prosecute and defend, but shall not initiate
without consent of the Technical Committee, all litigation or
administrative proceedings arise out of Operations. GENERAL
MINERALS shall have the right to participate in such litigation
or administrative proceedings. The Technical Committee shall
approve in advance any settlement involving payments,
commitments or obligations in excess of fifty thousand dollars
(US$50,000) in cash or value.
(g) The Operator shall provide insurance for the benefit of the Project
during the Option Period for the Assets as determined in accordance
with the decisions of the Technical Committee from time to time.
(h) The Operator may dispose of Assets, whether abandonment, surrender
or Transfer in the ordinary course of business, except that
Properties may be abandoned or surrendered only as provided in
Article XIII. However, without prior authorization from the
Technical Committee, the Operator shall not: (i) dispose of
Assets or begin a liquidation of the Project; or (ii) dispose of
all or a substantial part of the Assets necessary to achieve the
purposes of the Project.
(i) The Operator shall have the right to carry out its responsibilities
hereunder through agents, Affiliates or independent contractors.
(j) The Operator shall perform or cause to be performed during the term
of this Agreement all work necessary to comply with agreements,
concessions or other instruments constituting and governing the
Properties and Operations and shall take measures necessary to
maintain same in full force and effect.
(k) The Operator shall keep and maintain all required accounting and
financial records pursuant to the Accounting Procedure and in
accordance with customary accounting practices in the mining
industry and as necessary to comply with local law and accounting
requirements of the jurisdiction of the Properties.
(l) The Operator shall keep the Technical Committee advised of all
Operations by submitting in writing to the Technical Committee:
(i) monthly progress reports which include statements of
expenditures and comparisons of such expenditures to the adopted
Budget; (ii) periodic summaries of data acquired; (iii) copies
of reports concerning Operations; (iv) a detailed final report
within forty-five (45) days after completion of each Program and
Budget, which shall include comparisons between actual and
budgeted expenditures and comparisons between the objectives and
results of Programs; and (v) such other reports as the Technical
Committee may reasonably request. At all reasonable times the
Operator shall provide the Technical Committee upon the request
of any member of the Technical Committee access to, and the
right to inspect and copy all maps, drill logs, core tests,
reports, surveys, assays, analyses, production reports,
operations,
15
technical, accounting and financial records, and other information
acquired in Operations.
(m) The Operator shall undertake all other activities reasonably
necessary to fulfil the foregoing.
8.3 STANDARD OF CARE
The Operator shall conduct all Operations in a good, workmanlike and
efficient manner, in accordance with sound mining and other applicable industry
standards and practices, and in accordance with the terms and provisions of the
unpatented Lode Claims, the Lake Owen Option Agreements, any Mineral Interest,
leases, licenses, permits, contracts and other agreements pertaining to the
Assets. The Operator shall not be liable for any act or omission resulting in
damage or loss except to the extent caused by or attributable to the Operator's
negligence. The Operator shall timely post any bonding requirement in accordance
with applicable government regulations for any operation conducted for the Lake
Owen Project. TREND shall have the obligation to apply such Standard of Care at
all time during the Option Period, even during the Deadlock Period of the
Technical Committee.
ARTICLE IX
PROGRAMS AND BUDGETS
9.1 OPERATIONS PURSUANT TO PROGRAMS AND BUDGETS
Except as otherwise provided in this Agreement, Operations shall be
conducted, expenses shall be incurred, and Assets shall be acquired only
pursuant to approved Programs and Budgets.
9.2 PRESENTATION OF PROGRAMS AND BUDGETS
The Operator shall prepare proposed Programs and Budgets. Each adopted
Program and Budget, regardless of length, shall be reviewed at least once a year
at the annual meeting of the Technical Committee. During the period encompassed
by any Program and Budget, and at least sixty (60) days prior to its expiration,
a proposed Program and Budget for the succeeding period shall be prepared by the
Operator and submitted to the Technical Committee. Each such proposed Program
and Budget shall be in reasonable form and degree of detail.
9.3 REVIEW AND APPROVAL OF PROPOSED PROGRAMS AND BUDGETS
Within thirty (30) days after submission of a proposed Program and Budget,
the Technical Committee shall meet to approve, revise or reject such proposed
Program and Budget.
16
9.4 BUDGET OVERRUNS; PROGRAM CHANGES
The Operator shall immediately notify the Technical Committee of any
material departure from an adopted Program and Budget.
ARTICLE X
AUDIT
10.1 AUDITS
The Technical Committee or the Advisory Committee may request an annual
audit. Upon request made within twenty-four (24) months following the end of any
calendar year, GENERAL MINERALS may audit the accounting and financial records
for such calendar year (or other accounting period). All written exceptions to
and claims upon the Operator for discrepancies disclosed by such audit shall be
made not more than six (6) months after initiation of the audit. Failure to make
any such exception or claim within the six (6) month period after initiation of
the audit shall mean the audit is correct and binding. The audit shall be done
at the expense of GENERAL MINERALS unless a discrepancy of at least ten percent
(10%) is disclosed by such audit in any material item in the financial
statements. If such a discrepancy of at least ten percent (10%) is disclosed the
specific audit costs shall be to TREND.
ARTICLE XI
WITHDRAWAL AND TERMINATION
11.1 TERMINATION BY EXPIRATION OR AGREEMENT
This Agreement shall terminate as expressly provided herein, unless
earlier terminated by written agreement.
11.2 WITHDRAWAL
TREND may withdraw from the Project in accordance with the provision of
this Agreement. Upon such withdrawal, this Agreement shall terminate, and TREND
shall be
17
deemed to have transferred to GENERAL MENERALS all of its rights and interests
in the Project, Assets and Properties, without cost and free and clear of all
encumbrances arising by, through or under such withdrawing Party, except those
to which both Parties have agreed. TREND shall execute and deliver all
instruments as may be necessary in the reasonable judgement of GENERAL MINERALS
to affect the transfer of its interests in the Project, Assets and Properties to
GENERAL MENERALS.
11.3 CONTINUING OBLIGATIONS AND ENVIRONMENTAL LIABILITIES
During the term of this Agreement and after termination of the Project or
this Agreement under Sections 11.1, or 11.2, TREND shall remain liable for its
liabilities to third parties (whether such arises before or after such
withdrawal), including environmental liabilities and related bonding
requirement. TREND's liabilities shall include environmental damage and
liabilities, which are caused by or as a result of work done in the Lake Owen
Project.
11.4 DISPOSITION OF ASSETS ON TERMINATION
Promptly after termination under Sections 11.1 or 11.2, the Operator shall
take all action necessary to wind up the activities of the Project. All costs
and expenses incurred in connection with the termination of the Business shall
be expenses chargeable to the Project.
11.5 NON-COMPETE COVENANTS
Neither a Party that withdraws or is deemed to have withdrawn pursuant to
Section 11.2, nor any Affiliate of such a Party, shall directly or indirectly
acquire any interest or right to explore or mine, or both, on any property any
part of which is within the Area of Interest for two (2) years after the
effective date of withdrawal. If a withdrawing Party, or the Affiliate of a
withdrawing Party, breaches this Section 11.5, such Party shall be obligated to
offer to convey to the non-withdrawing Party, without cost, any such property or
interest so acquired (or ensure its Affiliate offers to convey the property or
interest to the non-withdrawing Party, if the acquiring Party is the withdrawing
Party's Affiliate). Such offer shall be made in writing and can be accepted by
the non-withdrawing Party at any time within ten (10) days after the offer is
received by such non-withdrawing Party. Failure of a Party's Affiliate to comply
with this Section 11.5 shall be a breach by such Party of this Agreement.
11.6 RIGHT TO DATA AFTER TERMINATION
After termination of the Project pursuant to Sections 11.1 or 11.2, each
Party shall be entitled to make copies of all applicable information acquired
hereunder before the effective date of termination not previously furnished to
it, but a terminating or withdrawal Party shall not be entitled to any such
copies after any other termination or withdrawal.
11.7 CONTINUED AUTHORITY
On termination of the Project under Sections 11.1 or 11.2, GENERAL
MINERALS (or TREND in the event of a withdrawal by GENERAL MINERALS) shall have
the power and authority to do all things which are reasonably necessary or
convenient to: (a) wind up operations and (b) complete any transaction and
satisfy any obligation, unfinished or unsatisfied,
18
at the time of such termination or withdrawal, if the transaction or obligation
arises out of operations prior to such termination or withdrawal. GENERAL
MINERALS shall have the power and authority to grant or receive extensions of
time or change the method of payment of an already existing liability or
obligation, prosecute and defend actions on behalf of both Parties and the
Project, and take any other reasonable action.
ARTICLE XII
ACQUISITIONS WITHIN AREA OF INTEREST
12.1 ACQUISITION WITHIN AREA OF INTEREST
There shall be an area of mutual interest (Area of Interest) specified in
Exhibit "A" whereby TREND or its affiliates (the Acquiring Party) acquiring any
interest, including without limitation, any mineral, surface or water rights or
interest (a "Mineral Interest") within such area shall be required to include
one hundred percent (100%) of such interest in the Property and made subject to
this Agreement under the same terms and conditions as the acquisition of such
Mineral Interest by the Acquiring Party.
If GENERAL MINERALS is the Acquiring Party of such Mineral Interest in the
Area of Interest, such interest shall be required to offer one hundred percent
(100%) to TREND for the benefit of Lake Owen Project. If TREND does not elect
within sixty (60) days of receiving a written notice from GENERAL MINERALS to
have the Mineral Interest included in the Property, GENERAL MINERALS shall be
free to acquire the same solely for its own account and benefit, provided that
it completes such acquisition within ninety (90) days of the TREND's refusal or
deemed refusal to have the Mineral Interest included in the Property on the same
terms and conditions as offered to GENERAL MINERALS.
12.2 ACQUISITIONS DURING THE OPTION PERIOD
Expenditures incurred to acquire a Mineral Interest within the Area of
Interest specified in Exhibit "A" during the Option Period, in accordance with
Subsection 12.1, shall be paid by TREND and included as Exploration Expenditures
for the purposes of the Agreement.
19
ARTICLE XIII
ABANDONMENT AND SURRENDER OF PROPERTIES
13.1 SURRENDER OR ABANDONMENT OF PROPERTIES
The Technical Committee may authorize the Operator to cause the surrender
or abandonment of part or all of the Properties. If the Technical Committee
authorizes any such surrender or abandonment then TREND shall so notify GENERAL
MINERALS during the Option Period, and if there is an objection within thirty
(30) days, there shall be an assignment to GENERAL MINERALS by the appropriate
conveyance document and without cost, of that interest in the property to be
abandoned or surrendered, and the abandoned or surrendered property shall cease
to be part of the Properties, the Parties shall remain obligated for liabilities
arising prior to abandonment.
13.2 REACQUISITION
If any Properties are abandoned or surrendered under the provisions of
this Article XIII, then, unless this Agreement is earlier terminated, no Party
shall acquire any interest in such Properties or a right to acquire such
Properties for a period of two years following the date of such abandonment or
surrender. If a Party reacquires any Properties in violation of this Section
13.2, the other Party may elect by notice to the reacquiring Party within 45
days after it has actual notice of such reacquisition, to have such properties
made subject to the terms of this Agreement. In the event such an election is
made, the reacquired properties shall thereafter be treated as Properties, and
the costs of reacquisition shall be borne solely by the reacquiring Party.
ARTICLE XIV
TRANSFER OF INTEREST
14.1 GENERAL
The transfer by a party to any interest in the Option, the Project or this
Agreement shall be subject to the non-transferring party's pre-emptive right in
accordance with this Article. Notwithstanding the foregoing sentence, this
pre-emptive right does not apply to a proposed transfer of substantially all of
the issued and outstanding shares of GENERAL MINERALS or TREND.
14.2 LIMITATIONS ON FREE TRANSFERABILITY
The Transfer right of TREND or GENERAL MINERALS in Section 14.1 shall be
subject to the following terms and conditions:
20
(a) A Party wishing to transfer an Interest shall promptly notify the
other of its intentions, by written notice stating the price and
other pertinent terms of the intended transfer and shall be
accompanied by a copy of the offer or contract for sale.
(b) The other Party shall have thirty (30) days from the date of
delivery of the notice to state whether it elects to acquire the
offered Interest at the same price and on the same terms and
conditions as set forth in the notice.
(c) If the other Party so elects, the transfer shall be consummated as
promptly as possible after the election notice is delivered to the
transferring Party.
(d) If the non-transferring Party does not so elect to exercise its
right, the transferring Party shall have one hundred and eighty
(180) days to consummate the proposed transaction with the third
party on terms no less favourable that made to the non-transferring
Party.
(e) If the transaction is not consummated within the said one hundred
and eighty (180) days, the non-transferring Party's pre-emptive
right shall be revived.
(f) Any transfer made without obtaining the non-transferring Party's
waiver of such right or compliance with the subsections of this
Section will be null and void.
(g) No transferee of all or any part of the Interest of a Party shall
have the rights of that Party unless and until the transferee, as of
the effective date of the Transfer, has committed in writing to be
bound by this Agreement as if an original Party thereto to the same
extent as the transferring Party.
(h) No Transfer permitted by this Article XIV shall relieve the
transferring Party of its share of any liability, whether accruing
before or after such Transfer, which arises out of Operations
conducted prior to such Transfer;
(i) The transferring Party and the transferee shall bear all tax
consequences of the Transfer;
(j) In the event of a Transfer of less than all of a Party's Interest,
the transferring Party and its transferee shall act and be treated
as one.
(k) If the Transfer is the grant of a security interest by mortgage,
deed of trust, pledge, lien or other encumbrance of any interest
in this Agreement, any Party's Interest or the Assets to secure
a loan or other indebtedness of a Party in a bona fide
transaction, such security interest shall be subordinate to the
terms of this Agreement and the rights and interests of the
other Party hereunder. Upon any foreclosure or other enforcement
of rights in the security interest the acquiring third party
shall be subject to the pre-emptive right described in this
Article and it shall comply with and be bound by the terms and
conditions of this Agreement.
21
(l) No transfer, sale or disposition shall in any way modify the
non-transferring rights in the Project.
ARTICLE XV
CONFIDENTIALITY
15.1 GENERAL
The financial terms of this Agreement and all information obtained in
connection with the performance of this Agreement shall be the exclusive
property of the Parties and, except as provided in Section 15.2, shall not be
disclosed to any third party or the public without the prior written consent of
the other Party, which consent shall not be unreasonably withheld.
15.2 EXCEPTIONS
The consent required by Section 15.1 shall not apply to a disclosure:
(a) To an Affiliate, consultant, contractor or subcontractor that has a
bona fide need to be informed provided such person agrees to
maintain the confidentiality of such information;
(b) To any third party to whom the disclosing Party contemplates a
Transfer of all or any part of its interest in or to this Agreement,
its Participating Interest, or the Assets provided such party agrees
to maintain the confidentiality of such information; or
(c) To a governmental agency or to the public which the disclosing Party
believes in good faith is required by pertinent law or regulation or
the rules of any stock exchange provided that the pertinent
disclosure is given to the other party and no objection is received
within twenty-four (24) hours.
15.3 DRAFT FOR COMMENT
In the event that either TREND or GENERAL MINERALS wishes or is required
to issue a press release or public statement, it will first provide the other
Party with a draft copy for review and comment. In the event that the other
Party fails to comment on the release within twenty-four (24) hours of its
receipt, or such earlier deadline as may be necessary to permit the Party
issuing the release to satisfy all regulatory requirements, they will be deemed
to have approved of the release in its entirety.
15.4 NOTICE REQUIRED
In any case to which Section 15.3 is applicable, the disclosing Party
shall give notice to the other Party concurrently with the making of such
disclosure. As to any disclosure pursuant
22
to Section 15.2(a) or (b), only such confidential information as such third
party shall have a legitimate business need to know shall be disclosed and such
third party shall first agree in writing to protect the confidential information
from further disclosure to the same extent as the Parties are obligated under
this Article XV.
15.5 DURATION OF CONFIDENTIALITY
The provisions of this Article XV shall apply during the term of this
Agreement and for two years following termination of this Agreement pursuant to
Section 11.1, and shall continue to apply to any Party who Transfers its
Participating Interest, for two (2) years following the date of such occurrence.
ARTICLE XVI
GUARANTEE
16.1 GENERAL MINERALS GUARANTEE OF ITS AFFILIATES
GENERAL MINERALS hereby guarantees the performance by its Affiliates of
their respective obligations under this Agreement.
16.2 TREND GUARANTEE OF ITS AFFILIATES
TREND hereby guarantees the performance by its Affiliates of their
respective obligations under this Agreement.
ARTICLE XVII
GENERAL PROVISIONS
17.1 NOTICES AND PAYMENT
All notices, payments and other required communications ("Notices") to the
Parties shall be in writing, and shall be addressed respectively as follows:
23
GENERAL MINERALS: TREND:
General Minerals Corporation Trend Mining Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇ ▇'▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇.▇
▇.▇.▇.
FAX: ▇▇▇-▇▇▇-▇▇▇▇ FAX: ▇▇▇-▇▇▇-▇▇▇▇
All Notices shall be given (i) by personal delivery to the Party, or (ii) by
electronic communication, with a confirmation sent by registered or certified
mail return receipt requested, or (iii) by registered or certified mail return
receipt requested. All Notices shall be effective and shall be deemed delivered
(i) if by personal delivery on the date of delivery if delivered during normal
business hours, and, if not delivered during normal business hours, on the next
business day following delivery, (ii) if by electronic communication on the next
business day following receipt of the electronic communication, and (iii) if
solely by mail on the next business day after actual receipt. A Party to this
agreement may change its address by Notice to the other Party to this Agreement.
Any payment called for shall be made at the place designated in this Section
17.1. Any payment shall be made in U.S. clearinghouse funds, or as otherwise
permitted by the receiving Party.
17.2 WAIVER
The failure of a Party to insist on the strict performance of any
provision of this Agreement or to exercise any right, power or remedy upon a
breach hereof shall not constitute a waiver of any provision of this Agreement
or limit the Party's right thereafter to enforce any provision or exercise any
right.
17.3 MODIFICATION
No modification of this Agreement shall be valid unless made in writing
and duly executed by the Parties.
17.4 FORCE MAJEURE
Except for the obligation to make payments when due hereunder, the
obligations of a Party shall be suspended to the extent and for the period that
performance is prevented by any cause, whether foreseeable or unforeseeable,
beyond its reasonable control, including, without limitation, labour disputes
(however arising and whether or not employee demands are reasonable or within
the power of the Party to grant); acts of God; Laws, instructions or requests of
any government entity; judgments or orders of any court; inability to obtain on
reasonably accepted terms any public or private license, permit or other
authorization; curtailment or suspension of activities to remedy or avoid an
actual or alleged, present or prospective violation of environmental laws;
action or inaction by any federal, state or local agency that delays or prevents
the issuance or granting of any approval or authorization required to conduct
operations beyond the reasonable expectations of the Party seeking the approval
or authorization; acts of war or conditions arising out of or attributable to
war, whether declared or undeclared; riot, civil
24
strife, insurrection or rebellion; fire, explosion, earthquake, storm, flood,
drought or other adverse weather condition; delay or failure by suppliers or
transporters of materials, parts, supplies, services or equipment or by
contractors' or subcontractors' shortage of, or inability to obtain, labour,
transportation, materials, machinery, equipment, supplies, utilities or
services; accidents; breakdown of equipment, machinery or facilities; actions by
native rights groups, environmental groups, or other similar special interest
groups; or any other cause whether similar or dissimilar to the foregoing. The
affected Party shall promptly give notice to the other Party of the suspension
of performance, stating therein the nature of the suspension, the reasons
therefore, and the expected duration thereof. The affected Party shall resume
performance as soon as reasonably possible. During the period of suspension the
obligations of both Parties to advance funds shall be reduced to levels
consistent with then current Operations.
17.5 GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Colorado.
17.6 ARBITRATION
An arbitration procedure for the interpretation of this Agreement and any
dispute arising between the Parties will be implemented under arbitration
proceedings all parties agreed in advance. It is expressly agreed and
acknowledged that TREND and GENERAL MINERALS will cause their subsidiaries and
their representatives involved in the Project, whether directly or indirectly,
to act in accordance with any arbitration result and to cause them to take all
reasonable steps to confirm or carry out any ruling or order made in the
arbitration proceedings or as a result of any arbitration proceedings or
results.
17.7 FURTHER ASSURANCES
Each of the Parties to take from time to time such actions and execute
such additional instruments as may be reasonably necessary or convenient to
implement and carry out the intent and purpose of this Agreement.
17.8 SURVIVAL OF TERMS AND CONDITIONS
The following Sections shall survive the termination of this Agreement to
the full extent necessary for their enforcement and the protection of the Party
in whose favour they run: Sections 2.2, 5.4, 11.2, 11.3, 15.3 and15.5.
17.9 ENTIRE AGREEMENT; SUCCESSORS AND ASSIGNS
This Agreement contains the entire understanding of the Parties and
supersedes all prior agreements and understandings between the Parties relating
to the subject matter hereof. This Agreement shall be binding upon and inure to
the benefit of the respective successors and permitted assigns of the Parties.
In the event of any conflict between this Agreement and any Exhibit attached
hereto, the terms of this Agreement shall be controlling.
25
17.10 DOLLARS
The references to "Dollars" or "$" in this Agreement shall mean United
States dollars.
17.11 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the date first above written.
GENERAL MINERALS CORPORATION
By: /s/▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: President
---------------------------------
Date: 10/13/99
---------------------------------
TREND MINING COMPANY
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Title: President
---------------------------------
Date: October 13, 1999
---------------------------------
26
AMENDMENT TO LAKE OWEN OPTION AGREEMENT
THIS AMENDMENT TO LAKE OWEN OPTION AGREEMENT (the "Agreement") is made and
entered into this 12th day of June, 2000, by and between General Minerals
Corporation, a Delaware corporation ("General Minerals") and Trend Mining
Company, a Montana corporation ("Trend").
RECITALS
Reference is made to the Agreement (the "Lake Owen Option Agreement"),
effective as of July 27, 1999, between General Minerals and Trend. Pursuant to
the Lake Owen Option Agreement, Trend issued to General Minerals 715,996 shares
of its Common Stock, which represented 25% of the issued Common Stock of Trend
on July 27, 1999, and provided for certain anti-dilution and pre-emptive rights
in favor of General Minerals. The Lake Owen Option Agreement also provided for
various operations and duties during the Option Period (as such term is defined
therein). General Minerals has now agreed to give up its anti-dilution and
pre-emptive rights, in return for the current right to acquire additional shares
of Common Stock of Trend.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by General Minerals and by Trend,
General Minerals and Trend hereby agree that the Lake Owen Option Agreement is
hereby amended as follows:
1. As of the Effective Date (as such term is defined therein), clauses
(1) and (2) of Section 5.3(b) of the Lake Owen Option Agreement are hereby
deleted, so that as of the Effective Date, the sentence beginning on the 13th
line of said Section 5.3(b) shall read as follows:
"Furthermore, TREND shall agree to list or register, as the case may be,
any and all of the shares held by GENERAL MINERALS in the event of a
public listing or registration of securities by TREND."
In consideration for General Minerals' agreement to the deletion of
clauses (1) and (2) from Section 5.3(b) of the Lake Owen Option Agreement, the
parties agree as follows:
A. General Minerals hereby exercises its right to participate
on a pro rata basis to purchase 416,961 shares of Common
Stock of Trend for $23,531, in connection with previous
sales of Common Stock by Trend to third parties for
$0.05 per share and $0.06 per share, such purchase to
occur as soon as practicable after the execution and
delivery of this Amendment (and General Minerals agrees
to make payment for those shares not later than 48 hours
after it executes this Amendment). Payment for the
purchase of the stock referred to in this subparagraph A
and in
subparagraph C below shall be made by General Minerals by wire
transfer in accordance with instructions provided by Trend.
B. Trend, as soon as practicable after the execution and delivery
of this Agreement, agrees to issue 200,000 additional shares
of its Common Stock to General Minerals.
C. Trend, as soon as practicable after the execution and delivery
of this Agreement, agrees that it will issue warrants,
in form and substance reasonably acceptable to Trend and
General Minerals, to General Minerals granting General
Minerals an option to purchase an additional 200,000
shares of Common Stock of Trend for $0.70 per share, at
any time during the two-year period from and after the
date of this Amendment.
D. General Minerals hereby waives any rights it may have had to
participate on a pro-rata basis in any offerings or other
issuances of Common Stock made by Trend after the Effective
Date of the Agreement through the date of this Amendment, and
releases Trend, its officers, directors and employees, from
any and all claims or causes of action associated therewith.
E. General Minerals represents and warrants that it is acquiring
the shares of Common Stock of Trend referred to in
subparagraphs A-C above solely for the purpose of
investment and not with a view to the distribution or
sale of any part thereof. General Minerals acknowledges
that those shares have not been and will not be
registered under the Securities Act of 1933, as amended
(the "Act") or any state securities law, and are being
issued and sold in reliance on exemptions from such
registration requirements that are available only if
those shares are not being offered to the public and are
being acquired for investment and not with a present
view to their distribution or sale.
F. General Minerals represents and warrants that it has such
knowledge and experience in financial, business and
mining matters as to be capable of evaluating the merits
and risks of its investment, and that it can bear the
economic risk of losing its entire investment in the
shares of Common Stock of Trend referred to in
subparagraphs A-C above and can afford to hold those
shares for an indefinite period of time.
G. General Minerals confirms that all requested documents,
records and books pertaining to its investment in Trend have
been made available or delivered to it.
H. General Minerals confirms that it has had the opportunity in a
manner satisfactory to it to ask questions of, and receive
answers from, officers
2
of Trend concerning its investment in the shares of
Common Stock of Trend referred to in subparagraphs A-C above.
I. General Minerals acknowledges and agrees that any certificates
representing shares of Common Stock of Trend acquired pursuant
to subparagraphs A-C above shall bear the following legend:
The shares represented by this certificate have not
been registered under the Securities Act of 1933, as
amended (the "Act"), and are "restricted securities"
as that term is defined in Rule 144 under the Act and
may not be sold, pledged, transferred, assigned or
hypothecated except pursuant to an effective
registration statement or an opinion of counsel
reasonably satisfactory to Trend Mining Company to
the effect that registration under the Act is not
required. The shares are being acquired solely for
the purpose of investment and not with a view to the
distribution or sale of any part thereof.
J. The parties agree that the provisions of Section 5.3(b) of the
Lake Owen Option Agreement, as amended by this Amendment,
shall apply to any Common Stock of Trend acquired by General
Minerals pursuant to subparagraphs A-C above.
2. Section 5.3(c) of the Lake Owen Option Agreement, which gives
General Minerals certain rights to designate directors to Trend's Board, is
hereby deleted.
3. Section 5.3(d) of the Lake Owen Option Agreement, which provides for
the performance by Trend of certain work at Lake Owen, is hereby amended to read
as follows:
"TREND shall conduct $15,000 of geophysical survey work, which shall
consist of core measurements and geophysical fieldwork, as the Technical
Committee members periodically decide, which work shall be completed by
December 31, 2000."
4. Section 8.2(1) of the Lake Owen Option Agreement, which provides for
certain obligations of the Operator to the Technical Committee (as such terms
are defined therein) shall be amended to read as follows:
"The Operator shall render to the Technical Committee (i) quarterly
progress reports with actual expenditures and comparisons of such
expenditures to the adopted budget and (ii) as soon as practicable after
December 31 of each year during the Option Period, an annual summary
report with actual expenditures, the next year's plans and budget and a
copy of all relevant factual data generated that year."
3
5. The parties hereby acknowledge that on completion of this Amendment,
Tigris Financial Group Ltd. and its assigns have agreed to release the
anti-dilution protection that was provided to them in that Stock Purchase
Agreement between Tigris Financial Group and Trend dated December 29, 1999 (the
"Tigris Stock Purchase Agreement"), provided that issuances or offerings of
shares of Common Stock of Trend made from and after the date of the Tigris Stock
Purchase Agreement and through the date of this Amendment, including those made
pursuant to this Amendment, will remain subject to the anti-dilution protection
set forth in the Tigris Stock Purchase Agreement.
6. Except as set forth above, all of the terms and conditions of the
Lake Owen Option Agreement are hereby ratified and confirmed.
GENERAL MINERALS CORPORATION,
a Delaware corporation
By: /s/▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President
TREND MINING COMPANY,
a Montana corporation
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
4
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY
STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS SUCH SALE, TRANSFER, PLEDGE OR HYPOTHECATION IS IN
ACCORDANCE WITH SUCH ACT AND APPLICABLE STATE SECURITIES LAWS.
Number of Shares of Common Stock: 200,000 Warrant No. 1
WARRANT
to Purchase
Common Stock, No Par Value
of
Trend Mining Company
a Montana corporation
THIS IS TO CERTIFY THAT for value received, General Minerals Corporation, a
Delaware corporation ("General Minerals"), is entitled to purchase from Trend
Mining Company, a Montana corporation (hereinbelow called the "Issuer" or the
"Company"), on or after the dates specified herein, but not later than 5:00 p.m.
mountain standard time on June 12, 2000 (the "Expiration Date"), 200,000 shares
of the Company's Common Stock, in whole or in part, at a purchase price of $0.70
per share of Common Stock, all on the terms and conditions hereinbelow provided.
Section 1. CERTAIN DEFINITIONS. As used in this Warrant, unless the
context otherwise requires:
"COMMON STOCK" shall mean the Issuer's authorized Common Stock, no
par value.
"COMMON STOCK WARRANT" OR "WARRANT" shall mean this Warrant for the
purchase of up to 200,000 shares, in the aggregate, of Common Stock, and all
additional or new warrants issued upon division or combination of, or in
substitution for, this Warrant. All such additional or new warrants shall at all
times be identical as to terms and conditions and date, except as to the number
of shares of Common Stock for which they may be exercised.
"EXERCISE PRICE" shall mean the purchase price of $0.70 per share of
Common Stock.
"MARKETABLE SECURITIES" shall mean securities registered under the
Securities Act of 1933 (the "Securities Act") and, if such securities are held
by an affiliate of the Issuer, which are permitted to be sold under Rule 144 in
a single ninety-day period.
"WARRANT STOCK" shall mean the shares of Common Stock purchasable by
the holder of a Warrant upon the exercise of such Warrant.
Section 2. EXERCISE OF WARRANT. This Warrant is made pursuant to and
subject to the terms and conditions of that Amendment to Lake Owen Option
Agreement between General Minerals and Issuer dated effective June 12, 2000.
This Warrant may be exercised in whole or in part on or after June 12, 2000 and
thereafter through the Expiration Date.
The holder of this Warrant may exercise this Warrant, in whole or in
part by delivering to the Issuer at its office maintained for such purpose
pursuant to Section 13, (i) a written notice of such holder's election to
exercise this Warrant, which notice shall specify the number of shares of Common
Stock to be purchased, (ii) this Warrant and (iii) a sum equal to the aggregate
of the Exercise Price for such shares of Common Stock, by wire transfer in
immediately available funds.
Such notice shall be in the form of the Subscription Form set out at
the end of this Warrant. Upon delivery thereof, the Issuer shall cause to be
executed and delivered to such holder within ten business days, a certificate or
certificates representing the aggregate number of fully-paid and nonassessable
shares of Common Stock issuable upon such exercise.
Subject to the restrictions in Sections 9 and 10, the stock
certificate or certificates for Warrant Stock so delivered shall be in such
denominations as may be specified in said notice and shall be registered in the
name of such holder or such other name or names as shall be designated in said
notice. Such certificate or certificates shall be deemed to have been issued and
such holder or any other person so designated to be named therein shall be
deemed to have become a holder of record of such shares, including to the extent
permitted by law the right to vote such shares or to consent or to receive
notice as a shareholder, as of the time said notice is delivered to the Issuer
as aforesaid. If this Warrant shall have been exercised only in part, the Issuer
shall, at the time of delivery of such certificate or certificates, deliver to
such holder a new Warrant dated the date it is issued, evidencing the rights of
such holder to purchase the remaining shares of Common Stock called for by this
Warrant, which new Warrant shall in all other respects be identical with this
Warrant, or, at the request of such holder, appropriate notation may be made on
this Warrant and the Warrant shall be returned to such holder.
-2-
The Issuer shall pay all expenses, taxes and other charges payable in
connection with the preparation, issue and delivery of stock certificates under
this Section 2.
All shares of Common Stock issuable upon the exercise of this Warrant
in accordance with the terms hereof shall be validly issued, fully paid and
nonassessable, and free from all liens and other encumbrances thereon, other
than liens or other encumbrances created by the holder hereof.
Section 3. ADJUSTMENT OF EXERCISE PRICE AND WARRANT STOCK. If the
Issuer shall at any time prior to the Expiration Date subdivide its outstanding
Common Stock, by split-up or otherwise, or combine its outstanding Common Stock,
or issue additional shares of its Common Stock in payment of a stock dividend in
respect of its Common Stock, the number of shares of Warrant Stock then issuable
on the exercise of the unexercised portion of this Warrant shall forthwith be
proportionately increased in the case of a subdivision or stock dividend, or
proportionately decreased in the case of a combination, and the Exercise Price
then applicable to shares covered by the unexercised portion of this Warrant
shall forthwith be proportionately decreased in the case of a subdivision or
stock dividend, or proportionately increased in the case of a combination.
Whenever the Exercise Price is adjusted as herein provided, the Issuer shall
promptly deliver to the registered holder of this Warrant a certificate of its
principal financial officer setting forth the Exercise Price after such
adjustment and a brief statement of the facts requiring such adjustment.
Section 4. RECLASSIFICATION, ETC. In case of any reclassification or
change of the outstanding Common Stock of the Issuer (other than as a result of
a subdivision, combination or stock dividend), or in case of any consolidation
of the Issuer with, or merger of the Issuer into, another corporation or other
business organization (other than a consolidation or merger in which the Issuer
is the continuing corporation and which does not result in any reclassification
or change of the outstanding Common Stock of the Issuer), at any time prior to
the Expiration Date, then, as a condition of such reclassification,
reorganization, change, consolidation or merger, lawful provision shall be made,
and duly executed documents evidencing the same from the Issuer or its successor
shall be delivered to the registered holder of this Warrant, so that the
registered holder of this Warrant shall have the right prior to the expiration
of this Warrant to purchase, at a total price not to exceed that payable upon
the exercise of the unexercised portion of this Warrant, the kind and amount of
shares of stock and other securities and property receivable upon such
reclassification, reorganization, change, consolidation or merger by a holder of
the number of shares of Common Stock of the Issuer which might have been
purchased by the registered holder of this Warrant immediately prior to such
reclassification, reorganization, change, consolidation or merger, and in any
such case appropriate provisions shall be made with respect to the rights and
interest of the registered holder of this Warrant to the end that the provisions
hereof (including without limitation, provisions for the adjustment of the
Exercise Price and of the number of shares purchasable upon exercise of this
Warrant) shall thereafter be applicable in relation to any shares of stock and
other securities and property thereafter deliverable upon exercise hereof.
Notwithstanding the foregoing, if pursuant to the terms of such consolidation or
merger, the consideration to be
-3-
received by the holders of Common Stock of the Issuer is cash and/or Marketable
Securities, this Warrant shall expire to the extent unexercised on the closing
of such merger or consolidation.
Section 5. CERTAIN NOTICES. If at any time prior to the expiration or
exercise of this Warrant, the Issuer shall pay any dividend or make any
distribution upon its Common Stock or shall make any subdivision or combination
of or other change in its Common Stock, the Company shall cause notice thereof
to be mailed, first class, postage prepaid, to the registered holder of this
Warrant at least ten days prior to the date as of which holders of Common Stock
who shall participate in such dividend, distribution, subdivision, combination
or other change are to be determined. Such notice shall also specify the time as
of which holders of Common Stock who shall participate in such event are to be
determined. The Company shall also provide to the registered holder of this
Warrant at least ten days prior written notice of the closing of the sale of
shares of Common Stock in an underwritten public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended.
Failure to give any such notice, or any defect therein, shall not affect the
legality or validity of any such event.
Section 6. RESERVATION AND AUTHORIZATION OF COMMON STOCK. The Issuer
shall at all times reserve and keep available for issuance upon the exercise of
Warrant such number of its authorized but unissued shares of Common Stock as
will be sufficient to permit the exercise in full of the Warrant.
Section 7. STOCK AND WARRANT BOOKS. The Issuer will not at any time,
except upon dissolution, liquidation or winding up, close its stock books or
Warrant books so as to result in preventing or delaying the exercise of the
Warrant.
Section 8. NO VOTING RIGHTS. This Warrant shall not entitle the
holder hereof to any voting rights or other rights as a shareholder of the
Issuer.
Section 9. TRANSFER. This Warrant may not be transferred or
otherwise assigned or conveyed by the holder hereof without the prior written
consent of Issuer, which consent Issuer may withhold in its sole discretion.
Section 10. INVESTMENT REPRESENTATIONS; RESTRICTIONS ON TRANSFER OF
WARRANT AND WARRANT STOCK. The holder represents and agrees that: (i) the
Warrant shall not be exercisable unless the purchase of Warrant Stock is
pursuant to an applicable effective registration statement under the Securities
Act of 1933, as amended (the "Act"), or unless in the opinion of counsel for the
Company, the proposed purchase of such Warrant Stock would be exempt from the
registration requirements of the Act, and from the qualification requirements of
any applicable state securities law; (ii) if the Warrant Stock is not issued
pursuant to an applicable effective registration statement under the Act, upon
exercise of the Warrant, holder will acquire the Warrant Stock for its own
account for investment and not with any intent or view to any distribution,
resale or other disposition of the Warrant Stock;
-4-
(iii) it will not sell or transfer the Warrant or the Warrant Stock, unless such
are registered under the Act, except in a transaction that is exempt from
registration under the Act; and (iv) if the Warrant Stock is not issued pursuant
to an applicable effective registration statement under the Act, each
certificate issued to represent any of the Warrant Stock shall bear a legend
calling attention to the foregoing restrictions and agreements. The Company may
require, as a condition of the exercise of the Warrant, that the holder hereof
sign such further representations and agreements as it reasonably determines to
be necessary or appropriate to assure and to evidence compliance with the
requirements of the Act.
Section 11. LOSS, DESTRUCTION OF WARRANT CERTIFICATES. Upon receipt
of evidence satisfactory to the Issuer of the loss, theft, destruction or
mutilation of the Warrant and, in the case of any such loss, theft or
destruction, upon receipt of indemnity and/or security satisfactory to the
Issuer or, in the case of any such mutilation, upon surrender and cancellation
of the Warrant, the Issuer will make and deliver, in lieu of such lost, stolen,
destroyed or mutilated Warrant, a new Warrant of like tenor and representing the
right to purchase the same aggregate number of shares of Common Stock.
Section 12. AMENDMENTS. The terms of this Warrant may be amended,
and the observance of any term herein may be waived, but only with the written
consent of the Issuer as authorized by its Board of Directors and the holder of
this Warrant.
Section 13. OFFICE OF THE ISSUER. So long as this Warrant remains
outstanding, the Warrant may be presented for exercise, division or combination
as in this Warrant provided, to the Issuer at its office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇'▇▇▇▇▇, ▇▇▇▇▇, unless and until the Issuer shall designate and
maintain some other office for such purposes and deliver written notice thereof
to the holder of the Warrant.
Section 14. NOTICES GENERALLY. Any notice, demand or delivery
pursuant to the provisions hereof shall be sufficiently delivered or made if
sent by first class mail, postage prepaid, addressed to General Minerals at its
last known address appearing on the books of the Issuer, or to the Issuer at its
principal executive office at the address set forth in Section 13, or such other
address as shall have been furnished to the party giving or making such notice,
demand or delivery.
Section 15. SUCCESSORS AND ASSIGNS. This Warrant shall bind and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns.
Section 16. GOVERNING LAW. This Warrant shall be governed by and
construed in accordance with the laws of the State of Colorado, without regard
to its rules as to conflicts of law.
-5-
IN WITNESS WHEREOF, the Issuer has caused this Warrant to be signed
in its name by its President or a Vice President and attested by its Secretary
or an Assistant Secretary.
Dated: June 12, 2000.
TREND MINING COMPANY, a Montana
corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ (name)
----------------------------
President (title)
----------------------------
ATTEST:
/s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Secretary & Treasurer
-6-
SUBSCRIPTION FORM
(to be executed only upon exercise of Warrant)
The undersigned registered owner of this Warrant irrevocably
exercises this Warrant for and purchases _______ shares of the Common Stock of
Trend Mining Company, a Montana corporation, and herewith makes payment therefor
(by wire transfer in accordance with instructions provided by Trend Mining
Company in the amount of $___________), all at the price and on the terms and
conditions specified in this Warrant, and requests that a certificate or
certificates for the shares of Common Stock hereby purchased (and any securities
or other property issuable upon such exercise) be issued in the name of and
delivered to General Minerals Corporation, whose address is and, if such shares
of Common Stock shall not include all of the shares of Common Stock issuable as
provided in this Warrant, that a new Warrant of like tenor and date for the
balance of the Common Stock issuable hereunder be delivered to the undersigned.
Dated:
GENERAL MINERALS CORPORATION,
a Delaware corporation
By:________________________________
_______________________________(name)
______________________________(title)