Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1 Filing Table of Contents
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1: S-1 Registration Statement (General Form) -- forms_1 HTML 1.54M
2: EX-3.1 Articles of Incorporation HTML 6K
3: EX-3.2 By-Laws HTML 55K
4: EX-3.3 Certificate of Amendment HTML 5K
5: EX-3.4 Certificate of Registration of Extra Provincial HTML 8K
Corp
6: EX-5.1 Legal Opinion HTML 18K
7: EX-10.1 Vend-In Agreement HTML 263K
8: EX-10.2 Consulting Agreement HTML 115K
9: EX-10.3 Additional Property Agreement HTML 25K
10: EX-14 Code of Ethics HTML 45K
11: EX-23.1 Consent of Auditor HTML 8K
12: EX-23.2 Consent of Lawyer HTML 10K
THIS CONSULTING AGREEMENT made
as of the 31st day of January, 2007 BY AND BETWEEN WOLVERINE EXPLORATION INC., a
Nevada, U.S.A. corporation, (hereinafter called the “Master Corporation”)
and TEXADA
CONSULTING INC., a British Columbia, Canada corporation, (hereinafter
called the “Consultant”)
RECITALS:
A.WHEREAS
the Master Corporation is a body corporate duly incorporated pursuant to the
laws of the State of Nevada, U.S.A., is validly subsisting and in good standing
in its constating jurisdiction, and has an office at or near Vancouver, British
Columbia, Canada;
B.AND
WHEREAS Consultant has represented to the Master Corporation that it is
qualified to provide to the Master Corporation such services as an independent
contractor as are hereinafter set forth;
C.AND
WHEREAS the Master Corporation wishes to obtain the services of Consultant as an
independent contractor for undertaking mining exploration in Labrador and
elsewhere in Canada for an open-ended term as set out herein;
NOW
THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and
subject to the terms and conditions herein set out, the parties hereto covenant
and agree as follows:
1.1The
Master Corporation hereby engages Consultant, and Consultant hereby accepts the
engagement, to provide for the Master Corporation, or at its direction to other
corporations or entities in which it has a direct or indirect financial interest
(“Affiliate”), to the extent that the Master Corporation reasonably and lawfully
directs, consulting, management and labour supply services in the mining
exploration industry in Canada (the “Services”), including without limitation
the following for the Master Corporation or its Affiliates:
(a)Advise
and manage the overall business and organizational
policies;
(b)Develop,
recommend and implement programs through
subordinates;
(c)Advise
and approves annual and long term company policies and
goals;
(d)Advise
and manage company financial, organizational and operational planning
activities and growth of the Company, including serving as banking
signatories or mandatories;
(e)Advise
and establish budgetary and operational
objectives;
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(f)Monitoring
performance relative to established objectives and systematically monitor
and evaluate operating results;
(g)Advise
and establish operating and capital expenditure budgets to go to the Board
of Directors for approval;
(h)Advise
and formulate the strategic plans and submits them to the Board of
Directors for approval;
(i)Advise
and direct consultants and others in matters concerning the exploration,
development, production, and promotion of the
business;
(j)Promoting
positive relations with suppliers, customers, stakeholders and the general
public;
(k)Advise
and establish fair and appropriate policies for labour supply and human
resources management; and
(l)Respond
and report to the Board of
Directors.
1.2The
relationship between the Master Corporation and Consultant is that of
independent contractor.
1.3Such
Services shall be rendered by Consultant at locations in
(a)British
Columbia, Canada, and
(b)elsewhere
in Canada, Nevada, U.S.A. or at such other locations as the Master
Corporation may reasonably require for itself or an Affiliate and
Consultant accept.
1.4The
Consultant shall assign or designate at least one competent employee or agent of
the Consultant approved upon commencement of this Agreement by the Master
Corporation to fulfil the obligations of the Consultant hereunder, which person
shall be herein called the “designated person”. The Consultant hereby
designates Bruce E. Costerd as one of the persons to fulfil the terms of this
engagement and to provide the Services.
1.5Consultant
shall have reasonable discretion as to the manner in and the time within which
the Services are performed.
1.6Consultant
shall, during the term of this Agreement, provide the Services on a commercially
reasonable priority but non-exclusive basis to the Master Corporation and in
furtherance of the Master Corporation's commercially reasonable best interests,
or for the Affiliate which the Master Corporation directs and the Consultant
accepts.
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1.7Consultant
is at liberty to carry on for its own benefit such other business, management or
other engagements, even if in direct or indirect competition to that of the
Master Corporation or its Affiliates.
1.8On
behalf of the Consultant, the designated person shall devote his time and
attention on a non-exclusive basis to the provision of the Services to the
Master Corporation during regular business hours in reasonable priority to other
commercial obligations of the designated person on behalf of the
Consultant.
ARTICLE
II - TERM
2.1The
Master Corporation hereby engages Consultant for the purposes aforesaid
commencing as of 1st day of February, 2007 and such engagement shall continue
until termination in accordance with the provisions of this Agreement, subject
to any early termination only in any applicable circumstances set out herein or
any extension or commutation of this arrangement to which the parties may
agree.
2.2The
Agreement shall renew automatically on the same terms and conditions, unless
amended as herein provided, for successive one (1) year periods after the expiry
of the initial term, unless terminated as herein provided.
ARTICLE
III - STANDARD OF CONDUCT
3.1Consultant
agrees that it shall provide the Services in a manner which is honest, orderly,
competent and skillful, shall employ only orderly, competent and skillful
individuals with the necessary qualifications, experience and ability to enable
it to perform the Services, shall use its commercially reasonable best efforts
to promote the interests of the Master Corporation and shall act in accordance
with the Master Corporation’s direction respecting its reasonable and lawful
policies and procedures as may be in effect from time to time.
3.2Nothing
herein contained shall require the Consultant to do or refrain from doing
anything which constitutes conduct in contravention of the provisions of any
statute or regulation by which it is bound or which would result in Consultant
committing a breach of any of the provisions of applicable statutes and
regulations.
3.3All of
the Services shall be provided only on a best efforts basis.
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ARTICLE
IV - OFFICE SPACE
4.1Master
Corporation shall provide or pay for non-exclusive office space with parking
(the “Resources”) to Consultant for use by its employees in providing the
Services, including necessary office space and secretarial and support
staff.
4.2Consultant
will not use any of the Resources provided by Master Corporation for other than
the performance of the Services unless Consultant has agreed to pay reasonable
rates or rents therefor.
4.3Consultant
shall otherwise provide all staff or necessary supplies and equipment to Master
Corporation at the cost of Master Corporation.
ARTICLE
V - CONSULTANT FEES
5.1For
the provision by Consultant of the Services, Master Corporation shall pay a
fixed monthly base fee to Consultant as set out below, which fee shall become
due and payable on the last day of each and every month of the
Term.
5.2Such
base fee shall be for provision of the Services only and not in lieu of any
finders fees, commissions or professional fees.
5.3Upon
the last day of each month during the term commencing with February 28, 2007
(for the month of February 2007) and ending with July 31, 2007, and upon the
first day of each month during the term commencing with August 1, 2007 (for the
month of August 2007), the Master Corporation shall pay to Consultant, NET OF
ANY WITHHOLDING, DEDUCTION, RESERVATION OR OFFSET:
(a)based
on ONE HUNDRED TWENTY THOUSAND (USD$120,000) US DOLLARS per annum, a fixed
monthly base fee of TEN THOUSAND (USD$10,000) US DOLLARS per
month, which fee shall become due and payable on the last day of each
month, and shall pay such amount without deduction, setoff, reservation or
withholding,
(b)the
accountable advances of CAD$10,000 in total: January 31, CAD$3,000,
February 20, CAD$5,000 and March 2, 2007
CAD$2,000,
(c)approved
reasonable expense claims submitted in the month,
and
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(d)any
applicable taxes, rates or duties which Consultant is obliged to charge
from time to time.
5.4Interest
on unpaid accounts for fees and expenses shall be charged at the annual rate of
12 per cent or such other rate as is mutually agreed upon from time to
time. In lieu of monthly payments, at the request of the Master
Corporation and with the consent of the Consultant, such payments may be made in
advance.
(a)a
fixed amount for principals of the Manager as agreed from time to
time;
(b)115%
of labour supply; and
(c)115%
of approved space and supplies and equipment charges, excluding furniture
and equipment provided under separate lease and set out on separate
schedules therefor.
5.5Subject
to the other provisions of this Agreement, on each successive anniversary of
this Agreement, the parties shall fix the annual contract fees for the next
ensuing year of this Agreement, having regard to the Master Corporation's
financial position and current market conditions for like positions with the
intention of increasing the base fee in recognition of performance in achieving
business objectives and market comparable rates for like positions.
5.6The
Consultant may receive annual or other bonuses based on performance criteria or
other criteria, to be determined and paid by the Corporation in its sole and
unfettered discretion.
ARTICLE
VI - INCENTIVE OR BONUS FOR COMMERCIAL MINE
6.1Consultant
shall receive a bonus (the “Bonus”) of the issuance of 5% of the Common Shares
of the Master Corporation issued and outstanding on a non-diluted basis as of
the date of the payment of the bonus upon and only in the event of the discovery
by the Corporation of a major mineral resource deposit in any of the
properties currently held or acquired in the future that is of a sufficient size
and value to support the commercial extraction and shipment of ore for the
purpose of earning revenue (but excluding the extraction and shipment of ore for
testing purposes). This provision does not apply to properties
acquired in the future and which have been identified, acquired, explored and
commercialized without any involvement on the part of the Consultant or its
servants or agents in any of those steps
6.2The
determination of whether the threshold for the Bonus as set out in this Article
has been met will be by mutual agreement between the parties, failing which the
Dispute Resolution Provisions shall apply.
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6.3This
provision shall survive the termination of this Agreement.
6.4The
Parties acknowledge and agree that the Bonus is subject to receiving all
necessary regulatory approvals for the issuance of the stock.
ARTICLE
VII - CONSULTANT BENEFITS
7.1Consultant
shall be designated as an affiliate of the Master Corporation by way of
endorsement or otherwise under any insurance plan or other benefit plan such
that employees of Consultant and her or his family members shall be covered by
the plan at the expense of the Master Corporation.
ARTICLE
VIII - EXPENSES
8.1Master
Corporation will fully reimburse Manager for all reasonable expenses incurred by
Manager which are necessary or incidental to the discharge of the Services or
have been made as agent for and on behalf of Master Corporation, excluding any
expenses by Manager for costs reasonably allocated to Master Corporation in
relation to providing the Services.
8.2Master
Corporation shall pay Consultant for expenses incurred by Consultant
in relation to the services of senior representatives of Consultant and the cost
of additional staff to provide the Services shall increase the monthly fee as
set out above or shall be included in the base management fee by an amount to be
agreed upon by the Parties.
8.3For
greater certainty, Master Corporation shall pay directly those specified costs
agreed upon by the Parties hereto from time to time, particularly in relation to
the costs of telecommunications, office, vehicle, business travel and related
expenses for Consultants’ employees who are providing services to Master
Corporation.
8.4Consultant
agrees to keep an accurate record of disbursements spent on the matters and
affairs of the Master Corporation and it shall submit such reports or expense
claims to the Master Corporation as it may direct or require at the times and in
the manner prescribed by the Master Corporation from time to time.
8.5The
Master Corporation shall reimburse Consultant for all expenses reasonably
incurred with respect to the provision of the Services as set forth in this
Agreement. Such expenses may include the following:
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(a)Operating
Expenses, including telecommunications, office and
vehicle,
(b)Travel
Expenses;
(b)Expenses
for development of the business of the Master
Corporation;
and
Consultant shall submit supporting vouchers as evidence of such
expenses.
8.6.The
Master Corporation agrees to pay all fees and do all such things as may be
required for it to obtain and maintain such licences or permits, if any, as are
necessary to carry on business in the Province of Newfoundland and Labrador or
elsewhere in Canada and the U.S.A.
8.7Master
Corporation shall arrange Worker’s Compensation coverage to the extent necessary
for Consultant (as an affiliate or otherwise) and designated persons performing
this Agreement within the Province of Newfoundland and Labrador (or wherever
work is to be performed), at Master Corporation’s cost or reimbursement to
Consultant of such costs.
ARTICLE
IX - CONFIDENTIALITY
9.1Wolverine
Proprietary & Confidential Information includes all information
belonging to Wolverine, including, without limitation:
1.All
information relating to Wolverine, whether disclosed or received by
conversation, written or document form, object or sample form, or by
observation and inspection, and whether or not such information is
expressly marked as "confidential", and regardless of the form or medium
in which such information is
contained;
2.All
information relating to resource property and mineral exploration in
Labrador, Canada, or anywhere in the world, by Wolverine, including
without limitation mineral locations and finds, ground and aerial
exploration results, drill results, assays, topographical information, ore
body delineations, exploration programs, subsequent expansion,
exploration, developments and improvements thereof; and the mineral
exploration business and expansion plans, opportunities and methods of
Wolverine for all purposes
whatever;
3.Any
development, improvement, enhancement or combination of any resource
property, mineral exploration, or intellectual property which in any way
relates to the business of Wolverine or may constitute a future business
opportunity of Wolverine made or discovered by Receiving Party in whole or
in part during the applicability of this Confidentiality
Agreement;
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4.All
project costing, supplier arrangements, alliances, business plans,
budgets, unpublished financial statements, licences, prices and costs,
suppliers and customers, business advisors, business counsel, business
partners, business agents and business contacts financial and fiscal
information related thereto or to the business, holdings and structure of
Wolverine;
5.Any
trade secret or other secret including, but not limited to all customer
and prospect lists, shareholder lists, patents, patent applications
pending, technical information, raw material data, product specifications,
processes and designs, operating and production data, marketing strategies
and data, calculations, instructions, manuals, techniques and know-how,
and
6.All
information and know-how used by Wolverine which is being, has been or may
be used in or developed for use in its business carried on by Wolverine
now or hereafter or which arises in connection with a business opportunity
of Wolverine, including resource property, mineral exploration, mining and
extraction, financial or marketing information and customer or contact
lists or shareholder lists of whatever nature in whatever
form.
For
greater certainty, Wolverine Proprietary & Confidential Information
does not include:
7.information
that the recipient can show by written evidence was in the public domain
at the date hereof otherwise then through an act or omission of the
recipient; or
8.information
that the recipient can show by written evidence has entered the public
domain after the date hereof otherwise then through an act or omission of
the recipient.
9.2Wolverine
Proprietary & Confidential Information shall not be excluded by virtue of
the foregoing merely because individual elements of the Confidential Information
are within the above noted exceptions;
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9.3The
Consultant hereby undertakes and agrees:
(a)not
to use the Wolverine Proprietary & Confidential Information for any
purpose other than the performance of its obligations
hereunder;
(b)not
to disclose the Wolverine Proprietary & Confidential Information to
any Party, except as may be necessary or incidental to the performance of
its obligations hereunder;
(c)to
hold the Wolverine Proprietary & Confidential Information in trust for
the Master Corporation and to keep the Wolverine Proprietary &
Confidential Information in absolute and strictest confidence;
and
(d)to
protect the Wolverine Proprietary & Confidential Information from
inadvertent or unauthorized disclosure, access or
use.
9.4The
provisions of this Article shall survive termination of this
Agreement.
ARTICLE
X - ASSIGNMENT
10.1Master
Corporation is not entitled to assign or transfer the whole or any part of this
Agreement, without the written consent of the Consultant.
10.2Consultant
may subcontract all or any portion of the Services without the consent of Master
Corporation.
ARTICLE
XI - TERMINATION
Termination
By Agreement
11.1The
parties may by mutual consent terminate this Agreement at any time for any
reason.
No
Termination Until After Minimum Term
11.2The
Master Corporation hereby covenants and agrees that it shall not terminate this
Agreement prior to February 28, 2010 for any reason whatever.
11.3If
the Master Corporation purports to do so it shall forthwith pay for such
termination (exclusive of and always subject to the survival of the grant of
stock options and warrants to the Consultant and its representatives and the
Bonus) as liquidated damages and not as a penalty the aggregate of all amounts,
which are hereby accelerated as immediately due and payable, hereunder for the
period to and including February 28, 2010 or such later date as the parties may
have agreed to extend the minimum term of this Agreement. All stock
which is the subject matter of options granted or to be granted shall be issued
to the Consultant or to its representatives according to their respective
interests, as fully paid and non-assessable without further cost to them, and
where the stock is not, for whatever reason, not able to be issued forthwith,
then the Master Corporation shall hold same or an equivalent value in cash or
other assets in trust for the sole use and benefit of the Consultant or its
representatives, and a security interest is hereby granted in all assets of the
Master Corporation and its Affiliates for the due payment hereof.
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11.4At
the option of the Master Corporation, after February 28, 2010, and not
before, the Master Corporation, subject to the grant of stock options and
warrants to the Consultant and its representatives and the Bonus, has the
option to terminate this Agreement and the Consultant shall be entitled to
the sum of $180,000 as liquidated damages but no further payment in
respect of termination or otherwise and all obligations of the Master
Corporation shall then cease and
terminate.
Automatic
Termination by Master Corporation Without Notice
11.5The
Master Corporation at any time shall be entitled to terminate this Agreement
forthwith for any of the following reasons, without prior notice, on the basis
that it is detrimental to the well being, reputation, and goodwill of
the Master Corporation or its Affiliates, and in such event the Consultant shall
be entitled to the base fee and reimbursement of expenses, and no other amounts,
calculated up to the date of termination as provided in this Agreement, and the
Consultant shall not be entitled to any further notice or
compensation:
(a)a
final conviction for dishonesty of, or theft or fraud by, any designated
person representing the Consultant, whether related to the business of the
Master Corporation or not; or
(b)a
final conviction or determination by a third party tribunal having
jurisdiction in respect of sexual harassment or discrimination by the
Consultant in respect of her
employment.
Termination
Upon Default After Notice to Cure
11.6Subject
to the other provisions hereof respecting termination, if there is an alleged
breach of this Agreement by either Party, the other Party, if it chooses to rely
on such alleged breach, shall give written notice to the breaching Party of
termination by reason of such breach with particulars of the alleged breach and
what specific corrective or curative action is required of the Party allegedly
in breach, and this Agreement shall terminate thirty (30) days after delivery of
the notice, provided such breach or default has not then been cured by the Party
receiving the notice in the reasonable and objective opinion of the Party giving
the notice.
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11.7In
particular, the Consultant shall have the right to terminate this Agreement at
any time upon the failure of the Master Corporation after the above notice to
cure a default in respect of any one or more of the following:
(a)upon
the failure of the Master Corporation to obtain and maintain
any permits or licences required by law;
or
(b)upon
the failure of the Master Corporation to make any proper payment to
Consultant, if as and when
required.
11.8Failure
by a Party to rely on the provisions of any above paragraph respecting
termination in any given instance or instances shall not constitute or be deemed
a waiver in any circumstance whatever unless expressly in writing to that
effect.
ARTICLE
XII - PROPERTY
12.1The
Consultant acknowledges that all items of property belonging to the Master
Corporation of every nature or kind created or used by the Consultant pursuant
to this Agreement, or furnished by the Master Corporation to the Consultant,
including all equipment, credit cards, customer and contact lists, books,
records, reports, files, manuals, computer discs, literature, confidential
information or other material, and also including all copies thereof or
summaries or information derived therefrom, and in paper, electronic or any
other medium whatever, shall remain and be considered the exclusive property of
the Master Corporation at all times and shall be surrendered to the Master
Corporation, in complete and good condition, promptly on the termination of this
Agreement irrespective of the time, manner or cause of the
termination.
12.2All
property belonging to or furnished by or on behalf of the Consultant shall
remain and be considered the exclusive property of the Consultant.
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ARTICLE
XIII - INDEMNITY
13.1.Subject
to paragraph 13.2, the Consultant:
(a)is
and shall be liable for; and
(b)does
indemnify and save harmless the Corporation and its Affiliates of, from
and against,
any and
all losses, which the Corporation may suffer, sustain, incur, pay or be liable
for, arising out of, relating to, in consequence of or in any way connected to
breaches of the terms of this Agreement by the Consultant.
13.2Consultant
hereby agrees to indemnify the Master Corporation against all direct loss or
damage, excluding consequential or punitive damages, arising from any breach of
the Consultant’s covenants set out herein, not exceeding the amount paid
hereunder to Consultant in the calendar month in which the loss occurred and any
purported continuing or series of loss shall be deemed only to have occurred in
and for the first month of occurrence and no longer.
13.3.The
Corporation:
(a)is and
shall be liable for; and
(b)does
indemnify and save harmless the Consultant, from and against,
any and
all Losses, which the Consultant may suffer, sustain, incur, pay or be liable
for, arising out of, relating to, in consequence of or in any way connected to
breaches of the terms of this Agreement by the Corporation.
ARTICLE
XIV - GENERAL TERMS AND CONDITIONS
14.The
General Terms and Conditions of Schedule A shall apply as if set out
herein.
ARTICLE
XV - DISPUTE RESOLUTION
Dispute
Resolution Provisions Including Binding Arbitration
15.In the
event of dispute the Parties agree to submit such issues for resolution in
accordance with AND SUBJECT TO THE DEADLINES OF the Dispute Resolution
provisions set out in Schedule B hereto, and shall proceed through each of the
following three steps in order as far as necessary to resolve the dispute,
subject to the complainant’s right at any time to withdraw its complaint; the
three successive steps are:
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(a)senior
level settlement negotiation as set out in Part I of Schedule B
below,
(b)interest-based
mediation as set out in Part I of Schedule B below, and failing
resolution, then
(c)arbitration,
which shall be final and binding upon the Parties without appeal and
without resort to the Court upon any grounds whatever, such as questions
of law or mixed fact and law, including not challenging the jurisdiction
of the arbitrator upon any grounds whatever, such arbitration process to
be in the form and manner set out in Part II of Schedule B
below.
IN
WITNESS WHEREOF the Master Corporation has hereunder affixed its seal by its
proper officer duly authorized in that behalf and Consultant has hereunto
affixed its hand and seal the day first written above.
A.1Interpretation: Wherever
the singular or masculine is used in this Agreement the same shall be
interpreted as including the plural, feminine or neuter wherever the context so
requires. The captions and headings are inserted for convenience of
reference only, form no part of this Agreement and in no way define, describe or
limit the scope or intent of this Agreement or any provision
hereof.
A.2Further Acts: In
order to fulfill the intent of the Parties hereto, they shall execute from time
to time all reasonable documents and do all such things as may be necessary or
desirable to more completely and effectively carry out the terms and intentions
of this Agreement, to implement it in all respects, or to fulfil consequential
aspects thereof, which any other Party may request from time to time at the
expense, if any, of the Party so requesting. Further, the parties
shall cause the corporate parties to act in the manner contemplated by this
Agreement and, to the extent permitted by law, cause the Board of Directors so
to act.
A.3Severability: If a
Court or duly constituted arbitrator would declare that all or any portion of
the provisions of this Agreement are void or unenforceable in the circumstances,
this Agreement shall, automatically and without further act on the part of the
Parties hereto, be reduced in scope to such an extent as to be valid and
enforceable in the circumstances. The invalidity of any provision of
this Agreement or any covenant contained herein on the part of any Party shall
not affect the validity of any other provision or covenant herein, which shall
remain in full force and effect.
A.4Governing Law: This
Agreement shall be governed by and construed pursuant to and in accordance with,
including the enforcement thereof, the laws of the Province of British Columbia
and the laws of Canada applicable therein. The Parties hereby
irrevocably exclude the jurisdiction of the courts anywhere in respect of the
interpretation of this agreement in favour of exclusive
arbitration. The enforcement of an arbitral award may be in the
courts of any jurisdiction where the judgment debtor has assets.
A.5Recitals: The
recitals hereto are incorporated herein as part of this Agreement.
A.6Entire Agreement; No Oral
Agreements: This written Agreement comprises the entire
agreement. There are no verbal or oral or other agreements,
memoranda, understandings, representations, conditions, warranties, statements,
promises or collateral agreement (collectively herein called “Statements”) of
any kind by and between the Parties, except as expressly set forth in
this Agreement, and if there are any such Statements, they are superseded and
wholly replaced by whatever appears in this Agreement. The execution of this
Agreement has not been induced by, nor do any of the Parties hereto rely upon or
regard as material, any Statements whatever except to the extent expressly
stated herein in writing.
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A.7Default: Upon a
default under this Agreement, each nondefaulting party shall have such remedies
as may be available at law and in equity, including specific performance,
subject to the Dispute Resolution provisions of Schedule B.
A.8Amendment of this
Agreement: Any amendment or modification of this Agreement or
additional obligation assumed by any Party in connection with this Agreement
shall be binding only if evidenced in writing signed by each Party or an
authorized representative of each Party. Any alteration, amendment or
qualification of this Agreement shall be null and void and shall not bind any
Party unless made in writing and signed or initialled by the Parties.
A.9Notice: All notices
contemplated or required to be given hereunder shall be effective if sent by
prepaid mail, facsimile transfer or delivered personally to any of the Parties
at the address of that Party last known to the other Party from time to time, or
at such other address as the Party to whom such notice is to be given otherwise
directs in writing. Any notice delivered aforesaid shall be effective on the
date of facsimile transfer or delivery and any notice mailed as aforesaid shall
be effective three (3) business days after the mailing thereof, provided that
where interruption of mail services is likely by reason of any strike or other
labour dispute, notice shall be by personal delivery only to the person or to
the address as aforesaid. For purposes hereof the Parties address for
service of notice hereunder is as follows:
Wolverine
Exploration Inc.
Attention: Lee
P. Costerd, President
Texada
Consulting Inc.
1450
Palmerston Avenue
West
Vancouver, BC V7T 1H7
Attention: Deirdre
Lynch, President
A.10Waiver: Any waiver
of any term, provision or condition of this Agreement to be effective must be in
writing and signed by the Party waiving such term, provision or condition
stating with specificity the particular provision or provisions being waived and
for what event or period of time. No waiver of any one or more
provisions shall be deemed to be a further waiver or continuing waiver of such
terms, provisions or conditions or any other term, provisions or conditions
unless the waiver specifically so states.
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A.11Warranty of
Authority: Any such execution is a representation and warranty
to the other Party that the Party so signing has full authority in all requisite
capacities to do so. In the event of any loss or damage suffered by a
Party due to this representation or warranty being untrue, whether innocent or
otherwise, then the Party causing the harm shall indemnify the other Party in
respect of all loss or damage, and reasonable costs and expenses connected
therewith.
A.12Time: Time is of
the essence of each provision of this Agreement, including the Dispute
Resolution Provisions of Schedule B.
A.13Force Majeure: No
right of any party hereto shall be prejudiced by events beyond a party’s
reasonable control including without limitation pressures or delays from outside
parties, labour disputes, the exigencies of nature, governments, regulatory
authorities and acts of God, particularly as they may affect the performance of
this Agreement but excluding the want of funds. All times herein
provided for shall be extended by the period necessary to cure any such event
and the party affected shall use all reasonable means to do so
promptly.
A.14Counterparts and Fax
Copies: This Agreement may be executed in counterparts and may
be delivered by fax copies thereof and when the whole is so executed and
delivered it shall constitute a valid and binding agreement among the Parties so
executing and delivering the agreement effective as of the Effective
Date. Fax Signatures shall be deemed to be accepted as original.
A.15No Partnership,
etc.: Nothing in this Agreement shall be deemed in any way or
for any purposes to constitute any party a partner of, or a member of a joint
venture or joint enterprise with, any other party to this Agreement in the
conduct of any business or otherwise.
A.16No Assignment
Permitted: No Party to this
Agreement shall assign, sell or otherwise transfer or encumber this Agreement,
or any of the rights, obligations or interests arising hereunder, without the
prior written consent of all of the other Parties.
A.17Enurement: This
Agreement shall be binding upon and enure to the benefit of the Parties and
their respective heirs, representatives, successors and permitted
assigns.
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SCHEDULE
B
DISPUTE
RESOLUTION PROVISIONS INCLUDING BINDING ARBITRATION
NOTE: THIS
ARTICLE CONTAINS LIMITATION PERIODS AND LIMITS ALL REMEDIES TO THIS DISPUTE
RESOLUTION PROCEDURE WITHOUT ANY RIGHT TO LITIGATE IN COURT
B.1Dispute Resolution Provisions
Including Binding Arbitration: In the event of dispute in
respect of any matter between the Parties in respect of
(a)this
Agreement
(b)or
any collateral agreement pertaining to or materially affecting the
Parties, or
(c)the
business of the Master Corporation,
they
agree to submit such issues for resolution in accordance with AND SUBJECT TO THE
DEADLINES OF the Dispute Resolution Provisions set out in this Schedule B, and
shall proceed through each of the following three steps in order as far as
necessary to resolve the dispute, subject to the complainant’s right at any time
to withdraw its complaint. The three successive steps
are:
(a)senior
level settlement negotiation as set out in Part I of this Schedule
B,
(b)mediation
as set out in Part I of this Schedule B, and failing resolution
then
(c)arbitration,
which shall be final and binding upon the Parties without appeal and
without resort to the Court upon any grounds whatever, such as questions
of law or mixed fact and law, including not challenging the jurisdiction
of the arbitrator upon any grounds whatever, such arbitration process to
be in the form and manner set out in Part II of this Schedule
B.
B.2Limiting
Rights: The Parties acknowledge and agree that they each are limiting
all of their rights of review, interpretation and decision to final and binding
arbitration and have no other recourse to resolve any dispute or controversy
between them arising out of or connected with this Agreement. They do
so knowing that they may be giving up substantial rights in favour of speedy,
inexpensive and certain resolution of any dispute among them, such prompt and
certain resolution being most desirable according to the interests of
each. Further, the language of this provision and that of the Dispute
Resolution provisions shall not be construed or interpreted in favour of or
against any Party on the basis of authorship or draftsmanship, it being agreed
that this provision and the Dispute Resolution provisions comprise an instrument
resulting from the common desire and effort of all of the Parties.
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B.3PART ISenior Level Settlement Negotiation
and Mediation
The
following shall be attempted prior to any arbitration:
Senior Level Settlement
Negotiation
(a)In
the event of any dispute, controversy or claim (a “Dispute”) arising out
of or in relation to this Agreement or any related agreement or
subcontract specifically referred to in this Agreement, or the
performance, non-performance, breach, termination, or invalidity hereof or
thereof, the Dispute shall be the subject of an attempt at an amicable
solution, for which purpose any Party may give WRITTEN AND DATED NOTICE to
the other Parties (“DISPUTE NOTICE WITHIN THE LIMITATION TIME” or
“Notice”), setting out:
(i)a
concise description of the Dispute,
(ii)the
position of such Party in respect thereof, and copies of any documents in
support of that position;
(iii)details
proposing a meeting among the principals of the Corporation or
representatives of the shareholders, or their designees (the “Senior
Officers”). Such meeting shall be held in Edson, British
Columbia or such other place as the Parties may agree for the purpose of
resolving the Dispute, and
(iv)the
following LIMITATION
NOTICE, or equivalent:
THIS
AGREEMENT CONTAINS A LIMITATION DEADLINE WITHIN WHICH TO MAKE CLAIMS AND RESOLVE
DISPUTES IN:
DISPUTE
RESOLUTION PROVISIONS INCLUDING BINDING ARBITRATION.
The
Dispute Resolution process replaces litigation and has three steps which must be
done or attempted in order: section B.1, B.2., B.4.1(b).
1.The first step is Senior
Level Settlement Negotiation: section B.3 PART I
(a).
The key
document WHICH MUST BE
DONE TO START THIS AND ALL LATER STEPS, and which must be within time, is
the “Dispute Notice Within The Limitation Time”. This written Notice
also suspends the time limitation deadline while the parties are trying to
resolve the dispute so no advantage can be gained by delaying
tactics: section B.3 (a). A sample form of the Notice is
in the final Exhibit to the Agreement at the last page of the
Agreement.
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2.The second step is
non-binding Interest-Based Mediation: section B.3 PART I (b) &
(c). If the Senior Level Settlement Negotiation does not
resolve matters the Claimant may choose to quit or to mediate.
3.The third step is binding
Arbitration: Part II, section B.4.
Section
B.4.2 provides two deadlines for demanding Arbitration:
(a)within
30 days after the conclusion of the Mediation (B.4.2(a)), which presumably
did not lead to a successful negotiated settlement or Arbitration would
not be necessary; and
(b)not
later than SIX (6) MONTHS after the later
of
(i)when
the claim arose and
(ii)when
it was known OR REASONABLY OUGHT TO HAVE BEEN KNOWN by the
Claimant.
This
six-month period is automatically extended for whatever time it has taken from
the date of service of the “Dispute Notice Within The Limitation Time” to start
Senior Level Settlement Negotiation until the conclusion of the unsuccessful
Mediation.
Within
15 days after delivery of the Notice, each receiving Party shall submit to
the other Parties a written response, setting forth the position of the
receiving Party in respect of the Dispute and providing copies of any
supporting documentation.
(b)If
such meeting is called, the meeting shall take place within 30 days of its
being requested. If such meeting does not take place within
such 30 days or if within 15 days after such meeting the Senior Officers
have not resolved the Dispute, then the Dispute shall, upon the written
request of any Party, be referred to mediation in accordance with
subsection (c) hereof or, failing any such resolution by mediation,
settled by arbitration in accordance with the remaining provisions of this
Article.
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Interest-Based Mediation
(c)If
a Party requests that a Dispute be referred to mediation, there shall be
one qualified, experienced mediator who shall be impartial and shall be
independent of and have had no financial connection with any
Party. Should the services of an appointing authority be
necessary, the appointing authority shall be a Justice of the Supreme
Court of British Columbia.
The
Parties shall have 15 days from the date of the request of mediation to
agree among themselves on the appointment of the mediator. If,
after such 15 day period, the Parties have not agreed on such appointment
then a Justice of the Supreme Court of British Columbia shall appoint the
mediator. The mediator may not serve as an arbitrator in any
arbitration of the Dispute. The mediation result, if any, is
not binding unless and until such agreement is reduced to writing signed
by all Parties thereto.
(d)All
negotiations, including any offers of settlement or compromise, undertaken
pursuant to this Part I shall be on a “without prejudice” basis and shall
not be admissible in any subsequent arbitration or other
proceeding.
B.4Part IIBinding
Arbitration
No matter
maybe submitted to arbitration until Part I has been complied with and mediation
has either failed or been waived expressly in writing or by necessary
implication from the conduct of the party adverse in interest to the party
seeking arbitration.
B.4.1Matters to be Submitted to
Arbitration:
(a)One
or more Parties may demand arbitration or answer the demand for
arbitration. All disputes and controversies of every kind and
nature between the Parties to this Agreement arising out of an occurrence
or event or omission in respect of this Agreement and the matters set out
in Article XV hereof, including matters of jurisdiction, questions of
fact, law or mixed fact and law and as to the existence, construction,
validity, interpretation or meaning, performance, non-performance,
enforcement, operation, breach, continuance or termination thereof shall
be decided by arbitration. The arbitration shall be conducted
under the Arbitration Rules of the United Nations Commission on
International Trade Law Model Law ("UNCITRAL - Model Law" or "Arbitration
Rules") as they read on the date of this Agreement except to the extent
that the rules are inconsistent with or in conflict with any terms of this
provision, in which event such terms of this provision shall
prevail. The arbitration shall be the sole and exclusive forum
for resolution of the Dispute. Judgment on the arbitral award
may be entered by any court having jurisdiction over a Party or any of a
Party's assets.
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(b)Each
Party shall not have or retain any right to appeal any question whatever
to the courts, including matters of jurisdiction or questions of law or
mixed fact and law, even if the award appears in the opinion of one Party
to be wholly perverse, it being the intent that the arbitrators award is
final and binding in respect of all legal or equitable action or
proceeding of any nature whatever, without appeal or resort to the
court.
(c)The
agreement to arbitrate shall be specifically enforceable under the
prevailing arbitration law. The award rendered by the
arbitrator shall be final and judgment may be entered upon it in any court
having jurisdiction thereof.
B.4.2Procedure
B.4.2.1
Demand for
Arbitration: Notwithstanding any provision of this Agreement,
any Party may demand such arbitration in writing
(a)within
thirty (30) days after the conclusion of interest-based mediation pursuant
to Part I, and provided that
(b)it
is not later than six (6) months after the later of when the claim arose
and when it was known or reasonably ought to have been known, which demand
shall include
1.the
name and curriculum vitae of the arbitrator nominated by the Party
demanding arbitration,
2.a
statement of the matter in
controversy,
3.a
statement of the detailed issues to be
resolved,
4.a
statement of the relief or result sought from the
arbitrator,
5.a
summary of the evidence, both documentary (with copies) and verbal reduced
to writing, plus the time elapsed since giving the
Notice,
6.the
reasons therefor, and
7.a
summary of the law relied upon and copies of all authorities and
references.
B.4.2.2
Answer and Selection of
Arbitrators: Within fifteen (15) days after such demand, the
other Party shall answer, which answer shall include:
1.the
name and curriculum vitae of the arbitrator nominated by the Party
answering the demand for
arbitration,
2.a
statement of the matter and any additional matter in
controversy,
3.a
statement of the detailed issues and any additional issues to be
resolved,
4.a
statement of the relief or result sought from the
arbitrator,
5.a
summary of the evidence, both documentary and verbal reduced to
writing,
6.the
reasons therefor, and
7.a
summary of the law relied upon and copies of all authorities and
references;
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or
in default of such nomination of an arbitrator, such arbitrator shall
be selected by a Justice of the Supreme Court of British
Columbia. The two arbitrators selected shall thereafter name a third
arbitrator within ten (10) days or, in lieu of such agreement on a third
arbitrator by the two arbitrators so appointed, a third arbitrator shall be
selected by a Justice of the Supreme Court of British Columbia.
B.4.2.3
Costs: The
arbitration costs and expenses of each Party shall be borne by each Party
initially, and upon rendering their award, the arbitrators may in their
discretion include a provision for payment of costs and expenses of arbitration
to be paid by one or both of the Parties as the arbitrators deem
just.
B.4.2.4
Hearing, Interim Relief and
Award: The arbitration hearing shall be held at Edmonton,
British Columbia upon ten (10) days notice to the Parties, and the arbitrators
shall make an award within forty-five (45) days after the hearing has completed
and the arbitrators are hereby given authority by the Parties to prescribe the
terms of any interim order respecting the standstill of the Parties or any
action which would have the effect of preserving the assets or matters pending
the making of an award, and such interim order shall be valid without appeal the
same as extraordinary relief of a court enforceable by way of temporary or
permanent injunction or mandamus once entered as an order or judgment of the
court.
B.4.2.5
Arbitrator Not Bound by Strict
Rules of Evidence: The British Columbia rules of evidence
shall govern the presentation of evidence at such hearing, except that the
arbitrators are not bound by the strict rules of evidence at such
hearing.
B.4.2.6
Purpose: The
arbitrators shall make their rulings and decisions in order to enforce the
Agreement by its language, equity and fair dealing in matters of trade and
commerce, irrespective of technicalities but not so as to modify the Agreement,
other than the construction and interpretation thereof, and with the least
possible delay and expenditure consistent with the comprehensive investigation
of such controversy presented.
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B.4.2.7
Witnesses: The
Parties shall be entitled to be heard in person or through counsel, and may
produce witnesses for examination; and the arbitrators may, by subpoena, require
any person to attend before them as a witness and to bring with him or her
books, papers or information in any form whatever.
B.4.2.8
Records: At
the request and expense of any Party so requesting, the arbitrators may keep a
complete record of all of the proceedings.
B.4.2.9
Private
Matter: The arbitration proceedings shall not be
public.
B.4.3Award is Final and
Binding: An award rendered by a majority of the arbitrators
appointed under and pursuant to this Agreement shall be final and binding on all
Parties to the proceeding during the period of this Agreement or thereafter to
the extent that the Agreement has covenants which survive the
Agreement.
B.4.4Award Enforceable as
Judgment: Judgment on such award or interim order may be
entered by either Party in a court of competent jurisdiction, state or federal,
and jurisdiction for such is hereby agreed to and conferred to the extent
necessary, without any right of appeal therefrom whatever.
B.4.5Agreement to Arbitrate is Bar to Suit
or Action: The Parties stipulate that this arbitration
provision shall be a complete defense to any suit, action or proceeding
instituted in any federal, provincial or local court or before any
administrative tribunal with respect to any controversy or dispute arising
during the period of this Agreement or thereafter to the extent that
the Agreement has covenants which survive the Agreement and which is arbitrable
as set forth in this Agreement, it being the intent of the Parties hereto that
no suit at law or in equity based on such dispute or controversy shall be
instituted by either Party, except to enforce the award of the
arbitrators.
B.4.6Arbitration Provisions Survive
Termination: The arbitration provisions hereof shall, with
respect to such controversy or dispute, survive the termination or expiration of
this Agreement.
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B.4.7Lack of Arbitrators’ Authority to
Modify Agreement: Nothing contained in this arbitration
provision shall be deemed or construed so as to give the arbitrators any
authority, power, or right to alter, change, amend, modify, add to, or subtract
from any of the provisions of this Agreement, other than to construe and
interpret them. This Agreement was drafted and reviewed by the mutual
effort of both Parties and shall not be interpreted or construed against either
Party on account of drafting.
B.4.8Governing Law: It is agreed that this
arbitration provision, like the whole of this Agreement, shall be
governed by and construed pursuant to and in accordance with, including the
enforcement thereof, the laws of the Province of British Columbia and the laws
of Canada applicable therein.
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Dates Referenced Herein and Documents Incorporated by Reference
