OPTION AGREEMENT BETWEEN:
OPTION AGREEMENT
BETWEEN:
FRONTEER DEVELOPMENT GROUP INC.
AND
ALBERTA STAR DEVELOPMENT CORP.
DATED the 22nd day of September, 2003
INDEX
ARTICLE 1
DEFINITIONS, INTERPRETATION AND SCHEDULES
1.01
Definitions
1.02
Interpretation
1.03
Currency
1.04
Time of Essence
1.05
Modification
1.06
Waiver
1.07
Interpretation and Severability
1.08
Governing Law
1.09
Schedules
ARTICLE 2,
REPRESENTATIONS AND WARRANTIES
2.01
Representations and Warranties of the Optionor
2.02
Representations and Warranties of the Optionee
2.03
Survival of Representations and Warranties
ARTICLE 3
OPTION
3.01
Grant of Option
ARTICLE 4
EXPENDITURES AND PROGRAMS
4.01
Optionee Vesting Obligations
4.02
Initial Exploration Program
4.03
Exploration Expenditures
4.04
Cash Payments
4.05
Payments to Perry English
4.06
Programs
4.07
Cash Calls
4.08
Monthly Statements
ARTICLE 5
VESTING OF INTEREST AND FORMATION OF JOINT VENTURE
5.01
Exercise of Option
5.02
Formation of Joint Venture
-
ii β
5.03
Purchase of Underlying Royalty
ARTICLE 6
OPERATOR AND PERFORMANCE OF WORK
1.1
Operator
1.2
Management Fee
1.3
Standard of Care
1.4
Access to Property and Data
1.5
Abandonment of Property
ARTICLE 7
TERMINATION
0.1
Failure to Fulfil Optionee Vesting
0.2
Obligations Formation of Joint Venture
ARTICLE 8
TRANSFER OF INTEREST
0.1
General
0.2
Limitations on Free Transferability
0.3
Pre-Emptive Right
0.4
Exception to Pre-Emptive Right
ARTICLE 9
AREA OF INTEREST AND AFTER ACQUIRED PROPERTY
0.1
Notice of Acquisition
0.2
Exercise of Option
0.3
Failure to Exercise Option
0.4
Reimbursement of Costs of Acquisition
ARTICLE 10
CONFIDENTIALITY
0.1
General
0.2
Exceptions
ARTICLE 11
GENERAL PROVISIONS
11.01
Notice
- iii -
11.02
Force Majeure
11.03
Further Assurances
11.04
Enurement
11.05
Other Business Opportunities
11.06
No Partnership
11.07
Counterparts
THIS AGREEMENT made as of the 22nd day ofSeptember, 2003.
BETWEEN:
FRONTEER DEVELOPMENT GROUP INC., a corporation incorporated under the laws of the Province of Ontario,
(hereinafter called the "Optionor")
-and-
ALBERTA STAR DEVELOPMENT CORP., a corporation
Incorporated under the laws of the Province of British Columbia,
(hereinafter called the "Optionee")
THIS AGREEMENT WITNESSETH that in consideration of the mutual covenants, conditions and agreements herein contained, the parties hereto agree as follows:
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ARTICLE 1
DEFINITIONS, INTERPRETATION AND SCHEDULES
1.01
Definitions
Where used or referred to in this Agreement:
"Affiliate" has the meaning assigned to it in the Canada Business Corporations Act, as amended;
"After Acquired Property" means any and all mineral interests staked, located, granted or acquired by or on behalf of any party during the currency of this Agreement, which are located in whole or in part in the Area of Interest and which are made part of the Property pursuant to Article 9 hereof,
"Alberta Star Shares" means the common shares of the Optionee to be issued to the Optionor pursuant to Section 4.04;
"Area of Interest" means the area within one kilometer of the perimeter of the Current Property;
"Cash Payments" has the meaning ascribed thereto in Section 4.01(c);
"Current Property" means those claims subject to the English Agreement and defined as the Property therein;
"Effective Date" means the date first written above;
"English Agreement" means the Property Option Agreement between the Optionor and Perry English dated the 30th day of December, 2002,, as amended by agreement dated February 25, 2003, copies which are attached hereto as Schedule "A";
"Expenditures" means all direct and indirect expenses of or incidental to Operations, together with any and all costs, fees and expenses which may be paid to obtain feasibility, engineering or other studies or reports on or with respect to the Property;
"Exploration" means all activities directed toward ascertaining the existence, location, quantity, quality or commercial value of deposits of ore, minerals and mineral resources. Exploration may include all activities undertaken through to the completion of a Feasibility Study, if any, but shall not include construction of milling or processing facilities or commencement of commercial mining operations on the Property;
"Feasibility Study" means the type of feasibility study described in the Joint Venture Agreement;
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"Interest" means a party's interest in the Property, as provided in this Agreement;
"Joint Venture" means the joint venture which may be formed by the parties pursuant to Article 5; "Non-Operator" means the party to this Agreement who is not at the time the Operator;
"Operations" includes any and every kind of work and activity directed toward ascertaining the existence, location, quantity, quality or commercial value of minerals, which the Operator in its sole discretion elects to do or to have done on or in respect of the Property and all Expenditures in respect of or incidental to such work;
"Operator" has the meaning ascribed thereto in Section 6.01 hereof; "Option" has the meaning ascribed thereto in Section 3.01 hereof;
"Optionee Vesting Obligations" means the Expenditures, Cash Payments and issuances of Alberta Star Shares referred to in Sections 4.02, 4.03, 4.04 and 4.05;
"Program" means a description in reasonable detail of the scope, direction and nature of the Operations to be conducted and objectives to be accomplished by the Operator for a year or any other reasonable period;
"Property" means the Current Property and the After Acquired Property;
"Transfer" means sell, grant, assign, encumber, pledge or otherwise commit or dispose of; "TSXVE" means the TSX Venture Exchange;
"Underlying Royalty" means the Net Smelter Return granted to Perry English pursuant to the English Agreement.
1.02
Interpretation
For all purposes of this Option Agreement, except as otherwise expressly provided or unless the context otherwise requires:
(a)
"this Agreement" means this Option Agreement as it may from time to time be supplemented or amended by one or more agreements entered into pursuant to the applicable provisions hereof;
(b)
all references in this Agreement to designated "Articles", "Sections" and other subdivisions are to the designated Articles, Sections and other subdivisions of this
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Agreement;
(c)
the words "herein", "hereof' and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision;
(a)
the headings of this Agreement are for convenience only and do not form a part of this Agreement nor are they intended to interpret, define or limit the scope, extent or intent of this Agreement or any provisions hereof;
(b)
the words "including", when following any general statement, term or matter, shall not be construed to limit such general statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as "without limitation" or "but not limited to" or words of a similar import) is used with reference thereof but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter;
(f)
words importing the masculine gender include the feminine or neuter gender and words in the singular include the plural, and vice versa.
1.03
Currency
Unless otherwise indicated, all dollar amounts referred to in this Agreement are in lawful money of Canada.
1.04
Time of Essence
Time is of the essence of this Agreement.
1.05
Modification
No modification of this Agreement shall be valid unless made in writing and duly executed by the parties.
1.06
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 that party's right thereafter to enforce any provision or exercise any right.
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1.07
Interpretation and Severability
In the event that any condition, covenant or other provision of this Agreement is held to be invalid or void by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall in no way affect any other condition, covenant or other provision of this Agreement. If such condition, covenant or other provision shall be deemed invalid due to its scope or breadth, such condition, covenant or other provision shall be deemed valid to the extent of the scope or breadth permitted by law.
1.08
Governing Law
This Agreement shall be governed by and interpreted in accordance with the laws of Ontario.
1.09
Schedules
The following are the schedules incorporated in this Agreement by reference and deemed to be a part hereof:
Schedule "A"
-
English Agreement
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES
a.1
Covenants, Representations and Warranties of the Optionor
The Optionor covenants, represents and warrants to the Optionee as follows:
(a)
that the Optionor has the capacity to enter into and perform this Agreement and all transactions contemplated herein and that all other actions required to authorize it to enter into and perform this Agreement have been properly taken;
(b)
that the Optionor will not breach any other agreement or arrangement by entering into or performing this Agreement;
(c)
that this Agreement has been duly executed and delivered by the Optionor and is valid and binding upon it in accordance with its terms;
(d)
that no consent or approval of any third party or governmental agency is required for the execution, delivery or performance of this Agreement by the Optionor or the transfer or acquisition of any interest in the Current Property;
(e)
the Optionor has not entered into and there are not any agreements or options to grant or convey any interest in the Current Property or to pay any royalties with respect to the Current Property other than the Underlying Royalty as provided in the English Agreement;
(f)
to the best of its knowledge and belief, the claims comprised in the Current Property have been duly and validly staked, located and recorded pursuant to all applicable laws and regulations in Ontario and are in good standing and no person has protested and to the best of the Optionor's knowledge there is no basis for protesting the recording of any such claims;
(g)
to the best of its knowledge and belief, there are not any suits, actions, prosecutions, investigations or proceedings, actual, pending or threatened, against or affecting the Optionor or that relates to or has an adverse effect on the Current Property;
(h)
to the best of its knowledge and belief, all taxes, rates or other levies of every nature and kind heretofore levied against the Current Property have been fully paid and satisfied;
(i)
to the best of its knowledge and belief, there has been no material spill, discharge, leak, emission, ejection, escape, dumping, or any release or threatened release of any kind, of any toxic or hazardous substance or waste (as defined by any applicable
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law) from, on, in or under the Current Property or into the environment, except releases permitted or otherwise authorized by such law;
(j)
to the best of its knowledge and belief, no toxic or hazardous substance or waste has been disposed of or is located on the Current Property as a result of activities of the Optionor or its predecessors in interest;
(k)
to the best of its knowledge and belief, no toxic or hazardous substance or waste has been treated on or is now stored on the Current Property;
(a)
to the best of its knowledge and belief, there are no pending or ongoing actions taken by or on behalf of any native persons pursuant to the assertion of any land claims with respect to lands included in the Current Property; and
(b)
the English Agreement has not been amended and represents the entire agreement pertaining to the Current Property; the English Agreement is a legal, valid, binding and enforceable agreement and there has been no act or omission and there is no state of acts existing which constitutes, or after notice or lapse of time or both would constitute a breach or default thereunder.
The covenants, representations and warranties contained in this Section 2.01 are provided for the exclusive benefit of the Optionee and a breach of any one or more of them may be waived by the Optionee in writing in whole or in part at any time without prejudice to its rights in respect of any other breach of the same or any other representation or warranty.
2.02
Covenants, Representations and Warranties of the Optionee
The Optionee covenants, represents and warrants to the Optionor as follows:
(a)
that the Optionee has the capacity to enter into and perform this Agreement and all transactions contemplated herein and that all other actions required to authorize it to enter into and perform this Agreement have been properly taken;
(b)
that the Optionee will not breach any other agreement or arrangement by entering into or performing this Agreement;
(c)
that this Agreement has been duly executed and delivered by the Optionee and is valid and binding upon it in accordance with its tenus;
(d)
the execution by the Optionee of this Agreement, the issue by the Optionee of the Alberta Star Shares pursuant to this Agreement and the performance and consummation by it of the other transactions contemplated hereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or
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constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement (written or oral) or instrument to which the Optionee is a party or by which it is bound or to which any of the property or assets of the Optionee is subject, or conflict with or result in any violation of the provisions of the articles, by-laws or directors' or shareholders' resolutions of the Optionee or any statute or any order, rule or regulation or qualification of or with any court or governmental agency or body having jurisdiction over the Optionee or any of its properties, and no consent, approval, authorization, order, registration or qualification of or from any other party or agency is required for the issue of the Alberta Star Shares by the Optionee or the consummation by the Optionee of the other transactions contemplated herein other than the acceptance of the TSXVE and the filing of a Form 45-501F1 and a Form 45-102F2 with the Ontario Securities Commission;
(e)
the Optionee is a reporting issuer in good standing under the securities laws of the Provinces of Alberta and British Columbia, and the Optionee will maintain such status and not be in default of any requirement under any such laws or the rules or regulations promulgated thereunder during the period ending on the first anniversary of the date of the last issuance of Alberta Star Shares; in particular, without limiting the foregoing, the Optionee has at all times complied with its obligation to make timely disclosure of all material changes relating to it and no such disclosure has been made on a confidential basis and there is no material change relating to the Optionee that has occurred and with respect to which the requisite material change report has not been filed;
(a)
the issued and outstanding common shares of the Optionee are listed and posted for trading on the TSXVE, the Optionee is in compliance with all applicable rules and regulations of the TSXVE, and the Optionee will use its best efforts to cause the common shares to continue to be listed on the TSXVE and the Optionee to be in compliance with the applicable rules and regulations of the TSXVE during the period ending on the first anniversary of the date of the last issuance of Alberta Star Shares;
(b)
the issuance of the Alberta Star Shares by the Optionee is and will be exempt from the registration and prospectus requirements of the Securities Laws of Ontario;
(c)
the Optionee is, and will be at the time of each issuance of Alberta Star Shares, a "qualifying issuer" for the purposes of Multilateral Instrument 45-102 β Resale of Securities, such that the Alberta Star Shares issued to the Optionor shall be subject to a hold period not exceeding four months from the date of each such issuance;
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(d)
the TSXVE has accepted notice of the transactions contemplated herein, and has approved the Alberta Star Shares for listing on the TSXVE;
(e)
the Alberta Star Shares have been duly allotted and reserved for issuance and will be, when issued, fully paid and non-assessable common shares in the capital of the Optionee, free and clear of any and all mortgages, liens, pledges, charges and other encumbrances and will be listed on the TSXVE and all other stock exchanges on which its shares are then listed.
(f)
The covenants, representations and warranties contained in this Section 2.02 are provided for the exclusive benefit of the Optionor and a breach of any one or more of them may be waived by the Optionor in whole or in part at any time without prejudice to its rights in respect of any other breach of the same or any other covenant, representation or warranty.
2.03
Survival of Representations and Warranties
The representations and warranties contained in this Article 2 will not merge in the Joint Venture Agreement and shall survive the execution and delivery of the Joint Venture Agreement and shall continue in full force and effect.
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ARTICLE 3
OPTION
3.01
Grant of Option
The Optionor hereby grants to the Optionee the sole and exclusive right and option (the "Option"), exercisable in the manner described herein, to acquire a 50%undivided interest in the Property, free and clear of all liens, charges, encumbrances, security interests and adverse claims, except for and subject to the Underlying Royalty.
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ARTICLE 4
EXPENDITURES AND PROGRAMS
4.01
Optionee Vesting Obligations
In order to exercise the Option, the Optionee must:
(a)
make its contribution to the Initial Exploration Program as provided in Section 4.02;
(b)
incur the Expenditures referred to in Section 4.03;
(c)
make the cash payments referred to in Sections 4.04 and 4.05 (the "Cash Payments"); and
(d)
issue the Alberta Star Shares referred to in Section 4.04.
The Optionee has the right, but not the obligation, to make the foregoing contributions and Cash Payments, incur the Expenditures and issue the Alberta Star Shares.
4.02
Initial Exploration Program
The Optionor shall prepare and present to the Optionee an initial exploration program (the "Initial Exploration Program") within 10 days of the date hereof. The Optionee agrees to contribute $200,000, and the Optionor agrees to contribute $100,000, to the Initial Exploration Program. The said contributions shall be placed in a trust account upon such terms as are acceptable to the Optionor and the Optionee.
4.03
Exploration Expenditures
The Optionee shall incur aggregate Expenditures of not less than $2,000,000, as follows:
Date
Amount
On or before four months from the Effective Date
$200,000
On or before the first anniversary of the Effective Date
$500,000
On or before the second anniversary of the Effective Date
$1,100,000
On or before the third anniversary of the Effective Date
$2,000,000
4.04
Cash Payments
The Optionee shall make Cash Payments of $135,000 to the Optionor and shall issue 350,000 Alberta Star Shares to the Optionor. The Cash Payments and the issuance of the
Alberta Star Shares shall be made on or before t
![[fronteeralbertastarfinal002.jpg]](https://www.sec.gov/Archives/edgar/data/1271129/000121716004000031/fronteeralbertastarfinal002.jpg)
Β Date
Effective Date
1" Anniversary of the Effective l
2nd Anniversary of the Effectivf
3rd Anniversary or the Effective
The Optionee may accelerate any or all of the f
4.05
Payments to Perry English
The Optionee shall assume the remaining cash payments to Perry English under the English Agreement. The remaining share issuance obligation to Perry English shall remain with the Optionor.
4.06
Programs
On or before January 31st in each year, the Optionor, as Operator, shall prepare a Program for that calendar year and submit it to the Optionee for approval. If the Optionee fails to approve the Program within 30 days of receipt thereof, it shall have a further 30 day period in which to prepare and submit a Program to the Optionor. Any Program prepared by either party shall be of an amount not less than the minimum Expenditures required in Section 4.03.
4.07
Cash Calls
The Optionor, as Operator, shall submit to the Optionee a billing for the full amount of the estimated Expenditures for any Program scheduled to be undertaken, subsequent to the Initial Exploration Program. Within 10 days after receipt of such billing, the Optionee shall advance to the Optionor, as Operator, such estimated amount.
4.08
Monthly Statements
The Operator shall submit to the Non-Operator monthly statements of account reflecting in reasonable detail the charges and credits to the joint accounts of the parties during the preceding month.
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ARTICLE 5
VESTING OF INTEREST AND FORMATION OF JOINT VENTURE
5.01
Exercise of Option
Upon the Optionee fulfilling the Optionee Vesting Obligations referred to in Section 4.01 and in the time contemplated thereby, the Optionee shall without any further payment or action be deemed to have exercised the Option and it will thereupon acquire and be deemed to have acquired and be vested with a 50% undivided right, title and interest in the Property free and clear of all liens, charges, encumbrances, security interests and adverse claims and except for proportionate responsibility for the Underlying Royalty.
5.02
Formation of Joint Venture
Upon the exercise of the Option by the Optionee pursuant to Section 5.01, the parties hereto shall be deemed to have associated themselves in a joint venture and shall enter into a joint venture agreement based upon industry standards.
5.03
Purchase of Underlying Royalty
In the event the Optionor decides to purchase up to 50% of the Underlying Royalty pursuant to the English Agreement, it shall give notice of such proposed purchase to the Optionee. The Optionee may, within 30 days of receipt of the said notice, elect by notice to the Optionor, accompanied with one-half of the purchase price for the purchased Underlying Royalty, to acquire one-half of the purchased Underlying Royalty. In the event the Optionee does not make the election aforesaid within the period of 30 days, the Optionor may acquire the Underlying Royalty for its own account.
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ARTICLE 6
OPERATOR AND PERFORMANCE OF WORK
6.01
Operator
The Optionee is hereby appointed the Operator with overall responsibility to manage and carry out Operations. The exploration team will, however, consist of at least one representative of the Optionee.
6.02
Management Fee
The Operator shall be entitled to charge a management fee of 5% of Expenditures otherwise determined for those contracts less than $100,000. The management fee shall be added to and shall constitute Expenditures.
6.03
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 leases, licenses, permits, contracts and other agreements. The Operator shall not be liable to the Non-Operator for breach of its Agreement or any other act or omission resulting in damage or loss unless the same constitutes the Operator's wilful misconduct or gross negligence.
6.04
Access to Property and Data
The Non-Operator shall at all reasonable times have access to the Property and to the technical data pertaining to the Property on reasonable notice to the Operator, provided that the Non-Operator shall not interfere with the Operator's operations hereunder.
6.05
Abandonment of Property
The Operator may at any time and from time to time abandon or surrender any part or parts of the Property, provided that the Operator shall give to the Non-Operator not less than 90 days' notice of any intended abandonment or surrender of any part or parts of the Property and shall, if requested by the Non-Operator by notice to the Operator within that period of time, deliver to the non-operator duly executed transfers of the part or parts of the Property so intended to be abandoned or surrendered as the non-operator may specify in the said notice. Upon the abandonment, surrender or delivery of a transfer in respect of any part or parts of the Property the same shall cease to be included in the Property and shall cease to be subject to this Agreement for all purposes.
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ARTICLE 7
TERMINATION
7.01
Failure to Fulfil Optionee Vesting Obligations
If the Optionee fails to fulfil the Optionee Vesting Obligations in the time contemplated herein or defaults in the performance of a material delegation under this Agreement, the Optionor may terminate this Agreement, but only if the Optionor has first given the Optionee a notice of default containing particulars of the failure or default and the Optionee has not cured such failure or default within 15 days of receipt of the notice of default.
7.02
Formation of Joint Venture
If the parties form a joint venture as contemplated by Section 5.02, then this Agreement shall terminate.
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ARTICLE 8
TRANSFER OF INTEREST
8.01
General
Prior to the formation of the Joint Venture, each party shall have the right to Transfer to any third party all or any part of its Interest solely as provided in this Article 8.
8.02
Limitations on Free Transferability
The Transfer right of a party in Section 8.01 shall be subject to the following terms and conditions:
(a)
no transferee of all or any part of the Interest of a party shall have any rights hereunder unless and until the transferring party has provided to the other party notice of the Transfer as required by Section 8.03, and the transferee, as of the effective date of the Transfer, has committed in writing to be bound by this Agreement to the same extent as the transferring party;
(b)
no transfer permitted by this Article 8 shall relieve the transferring party of any liability, whether accruing before or after such Transfer, which arises herein prior to such Transfer;
(c)
in the event of a Transfer of less than all of an Interest after which the transferring party retains an Interest, it and its transferee shall be treated as one party;
(d)
if the Transfer is the grant of a security interest by mortgage, deed of trust, pledge, lien or other encumbrance of the Interest of a party to secure a loan or other indebtedness, 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 deemed to have assumed the position of the encumbering party with respect to this Agreement and the other party, and it shall comply with and be bound by the terms and conditions of this Agreement.
8.03
Pre-Emptive Right
Except as otherwise provided in Section 8.04, if either party (the "Selling Party") desires to Transfer all or any part of its Interest, the other party (the "Remaining Party") shall have a pre-emptive right to acquire such Interest as provided in this Section 8.03:
(a)
if the Selling Party intends to Transfer all or any of its Interest, it shall promptly
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notify the Remaining Party of its intentions. The notice shall state the price and all other pertinent terms and conditions of the intended Transfer, and shall be accompanied by a copy of the offer or contract for sale. Alternatively, the Selling Party may propose terms of a sale that may be offered to a prospective purchaser. If the consideration for the intended Transfer is, in whole or in part, other than monetary, the notice shall describe such consideration and its monetary equivalent based upon the fair market value of the non-monetary consideration stated in terms of cash or currency, together with information sufficient to establish the basis for such equivalence. The Remaining Party shall have 30 days from the date such notice is delivered to notify the Selling Party whether it elects to acquire the offered interest for the same consideration or its monetary equivalent in cash or currency, and on the same terms and conditions as set forth in the notice. If the Remaining Party so elects, the Transfer shall be consummated promptly after notice of such election is delivered to the Selling Party;
(b)
Β if the Remaining Party does not so elect within the period provided for in Section 8.03(a), the Selling Party shall have 90 days following the expiration of such period to consummate the Transfer to a third party for the consideration and on terms no less favourable than those offered by it to the Remaining Party in the notice required in Section 8.03(a); and
(c)
if the Selling Party fails to consummate the Transfer to a third party within the period set forth in Section 8.03(b), the pre-emptive right of the Remaining Party in such offered Interest shall be deemed to be revived. Any subsequent proposal to Transfer such Interest shall be conducted in accordance with all of the procedures set forth in this Section 8.03.
8.04
Exception to Pre-Emptive Right
Section 8.03 shall not apply to the following:
(a)
transfer by any party of all or any part of its Interest to an Affiliate;
(b)
corporate consolidation, merger, amalgamation or reorganization of or by any party by which the surviving entity shall possess substantially all of the stock, or all of the property rights and interests, and be subject to substantially all of the liabilities and obligations of the party;
(c)
the grant by any party of a security interest in its Interest by mortgage, deed of trust, pledge, lien or other encumbrance and any Transfer of such interest by reasons of exercise of the rights granted to the secured party.
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ARTICLE 9
AREA OF INTEREST AND AFTER ACQUIRED PROPERTY
9.01
Notice of Acquisition
If either the Optionee or the Optionor (the "Acquiring Party") stakes or otherwise acquires, directly or indirectly, any right to or interest in any mining claim, licence, lease, grant, concession, permit, patent, or other mineral property or surface rights or water rights (collectively the "Acquired Rights") located wholly or partly within the Area of Interest, then the Acquiring Party shall forthwith give notice to the other (the "Other Party") of that staking or acquisition, the cost thereof and all details in possession of any party with respect to the nature of the Acquired Rights and the known mineralization.
9.02
Exercise of Option
The Other Party may, within 30 days of receipt of the Acquiring Party's notice, elect, by notice to the Acquiring Party, to require that the Acquired Rights and the right or interest acquired be included in After Acquired Property and thereafter form part of the Property for all purposes of this Agreement.
9.03
Failure to Exercise Option
If the Other Party does not make the election aforesaid within that period of 30 days, the Acquired Rights shall not form part of the Property and the Acquiring Party shall be solely entitled thereto.
9.04
Reimbursement of Costs of Acquisition
If the Acquiring Party is the Operator and the Non-Operator makes the election aforesaid, the Operator's costs of or incidental to the staking or acquiring of the Acquired Rights shall be deemed to be Expenditures. If the Acquiring Party is the Non-Operator and the Operator makes the election aforesaid, the Operator shall reimburse the Non-Operator for its costs of or incidental to the staking or acquiring of the Acquired Rights and the amount so reimbursed shall be deemed to be Expenditures incurred by the Operator.
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ARTICLE 10
CONFIDENTIALITY
10.01
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 10.02, shall not be disclosed by the Optionor or the Optionee to any third party or the public without the prior written consent of the other party, which consent shall not be unreasonably withheld. Whenever practical, any announcements, press releases, or public statements shall be issued jointly by the parties. Each party agrees to promptly review any proposed request for disclosure or press release made by the other party.
10.02
Exceptions
The consent required by Section 10.01 shall not apply to a disclosure:
(a)
to an Affiliate, consultant, contractor or subcontractor, banker, insurance broker, or surety that has a bona fide need to be informed;
(b)
to any third party to whom the disclosing party contemplates assigning any portion of its Interest; 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.
In any case to which this Section 10.02 is applicable, the disclosing party shall give notice to the other party prior to making such disclosure. The text of any public announcements or statements including news releases which a party intends to make pursuant to this Section 10.02 shall be made available to the other party prior to publication and such other party shall have the right to make suggestions for changes therein. Unless required by law or regulatory authority, if a party is identified in such public announcement or statement it shall not be released without the consent of such party. As to any disclosure pursuant to Section 10.02(a) or 10.02(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 10.
ARTICLE 11
GENERAL PROVISIONS
11.01
Notice
Any notice or communication required or permitted to be given to any party under this Agreement shall be in writing and may be given by hand delivery to the party or sent by telex or facsimile or by mailing the same by prepaid registered mail, return receipt requested, addressed as follows:
If to the Optionor: with a copy to:
2390 - ββββ ββββ ββββββββ ββββββ βββββββββ, βββββββ ββββββββ
βββ βββ
Attention: ββββ β'βββ
with a copy to:
Beach, Hepburn
βββββ ββββ
ββ βββββββ ββββββ
βββββββ, βββββββ
βββ βββ
Attention: ββββ β. βββββββ
If to the Optionee:
200 - βββ ββββ ββββββββ ββββββ
βββββββββ, βββββββ ββββββββ
βββ βββ
Any notice or communication sent by registered mail shall be deemed to have been given and received five (5) days after the date of registration in Canada. Any notice or communication sent by telex or facsimile shall be deemed to have been given one (1) day after such notice or communication was sent by the notifying party. Any notice or communication hand delivered shall be deemed to have been given and received on the date of delivery. Any party may change his address for service at any time by notice in writing given as aforesaid to each other party hereto.
11.02
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, regulations, orders, proclamations, instructions or requests of any government or governmental entity; judgments or orders of any court; inability to obtain on reasonable acceptable terms any public or private license, permit or
11-2
other authorization; curtailment or suspension of activities to remedy or avoid an actual or alleged, present or prospective violation of federal, provincial or local environmental standards; acts of war or conditions arising out of or attributable to war, whether declared or undeclared; riot, civil strife, insurrection or rebellion; interference by environmentalists, Natives or Native rights groups or other activists; fire, explosion, earthquake, mudslide, storm, flood, avalanche, sink holes, volcanic eruption, drought or other adverse weather conditions; 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; 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 therefor, and the expected duration thereof. The affected party shall resume performance as soon as reasonably possible.
11.03
Further Assurances
Each of the parties agrees that it shall 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.
11.04
Enurement
This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns.
11.05
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 the other. 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 the other with respect to any opportunity to acquire any property outside the Area of Interest during the teen of this Agreement.
11.06
No Partnership
Nothing contained in this Agreement shall be deemed to constitute either party, the partner of the other, nor, except as otherwise herein expressly provided, to constitute either party the agent or legal representative of the other, nor to create any fiduciary relationship between them. It is not the intention of the parties to create, nor shall this Agreement be construed to create, any mining, commercial or other partnership. Neither of the parties shall have any authority to act for or to assume any obligation or responsibility on behalf of the other, except as otherwise expressly
11-3
provided herein. 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, it being the express purpose and intention of the parties that their ownership of Assets and rights acquired hereunder shall be as tenants-in-common.
11.07
Counterparts
This Agreement may be executed in one or more counterparts, each of which so executed shall constitute an original and all of which together shall constitute one and the same Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the date first above written.
![[fronteeralbertastarfinal004.jpg]](https://www.sec.gov/Archives/edgar/data/1271129/000121716004000031/fronteeralbertastarfinal004.jpg)
I:\llana\Fronleer\Alberta Star - βββββ Property\ Option Agt -4.doc