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
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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 VEND-IN AGREEMENT FOR THE
PURCHASE AND SALE OF RESOURCE EXPLORATION PROPERTY made effective as of February28, 2007 is by and between WOLVERINE EXPLORATION INC.
(“Wolverine”), a Nevada, U.S.A. corporation having an office at 2470
Saint Rose Pkwy, Suite 304, Henderson, NV, U.S.A. 89074 (herein called the
"Buyer"), and SHENIN RESOURCES
INC. (“Shenin”), an Alberta, Canada corporation, having an office at 103
Huntcroft Place NE, Calgary, Alberta, Canada T2K 4E6, acting in a dual
capacity:
(a)Shenin,
as agent, for each of the prospectors and grubstakers set out in Recital D
below, according to their respective interests (herein collectively called
the "Sellers"), and
(b)Shenin,
as principal, whereby Shenin acquires for its own benefit an undivided 10%
carried interest in the Property, all as set out
below:
RECITALS:
A. WHEREAS Buyer
was formed in the State of Nevada, U.S.A. on February 24, 2006 for the purpose
of undertaking mining exploration and mining development worldwide, including in
particular being engaged in the exploration and development of mining prospects
of Minerals in Labrador, Canada;
B. AND WHEREAS
Buyer has authorized capital of 200,000,000 voting common shares, of which
4,000,000 are at present issued and outstanding as fully paid and
non-assessable;
C. AND WHEREAS
Buyer is seeking interests in mining properties with favourable prospects of
exploration which have the potential to yield Minerals in commercial
quantities;
____”LC”_______ __”RH”_____
Initial Initial
Page
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D. AND WHEREAS
Buyer wishes under this Agreement to acquire and Sellers, through Shenin as
their agent, wishes to sell 90% of their Interest in Property from time to time,
such 90% portion of the Interest in Property herein called the "Purchased
Interest";
E. AND WHEREAS
the Sellers comprise the following group of persons each of whom
has either
(i)prospected,
or
(ii)contributed
pursuant to a prior arrangement directly or indirectly by way of material,
advice, guidance, provisions, services or financing for the prospecting
for, exploring for or developing a mining property
for
Minerals in Labrador, including without limitation, the seeking, finding,
staking, exploring, developing or the financing of the undertaking therefor, and
as a result thereof earned an undivided interest in the Property, 90% of which
is being disposed of to Wolverine in consideration for the receipt of common
shares of Wolverine as set out below:
Contributor
Contribution
Wolverine
Common Shares
(Alphabetical
Order)
Biggar,
Ralph
cash,
staking
4,000,000
Den
Duyf, Arthur
cash
5,000,000
Haderer,
Richard
founder,
services
5,000,000
Lynch,
Deirdre
cash
5,000,000
Ng,
Thain Yew
staking
5,000,000
Nichols,
Neil
services
5,000,000
Poker,
Prote
prospector
5,000,000
TOTAL
34,000,000
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F. AND WHEREAS
Shenin is not a shareholder of Wolverine now or as a result of the current
transaction proposed herein;
G. AND WHEREAS
Shenin is controlled by Prote Poker, an Innu individual, and Shenin is eligible
to do business with the Innu Nation in Labrador;
H. AND WHEREAS
Shenin, as principal, wishes under this Agreement
(a)to
acquire and retain and Sellers wish to transfer an undivided 10% carried
interest in their total Interest in Property from time to time, such 10%
portion of the Interest in Property transferred to Shenin herein called
the "Shenin Interest", and
(b)to
receive the sum of USD$34,000, representing ten percent of the aggregate
value of the common shares of Wolverine issued hereunder, payable on
demand after May 31, 2007;
I. AND WHEREAS
for clarity the Sellers’ Interest represents 100% of their rights to the
Property, the Purchased Interest represents 90% and the Shenin Interest
represents 10%, the latter being a net carried interest such that Wolverine will
bear 100% of the costs of exploration and development.
J. AND WHEREAS
the Buyer will commit to performing certain exploration or development work on
the Property over the next three years;
K. AND WHEREAS
this is an ongoing contractual relationship by which the Parties wish to have
this Agreement govern Interests in other Property in Labrador which they may
acquire from time to time;
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NOW
WITNESS THEREFORE in consideration of the mutual covenants, agreements and
warranties herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto
agree as follows:
DEFINITIONS
The
following terms shall have the meanings set forth above or herein for the
purposes of the transactions described in this Agreement:
Affiliate of
any Person shall mean any corporation, proprietorship, partnership, trust
or entity which, directly or indirectly, owns or controls, is under common
ownership or control with, or is owned or controlled by, such Person or
group of Persons with whom the Person deals at non-arm’s length as
defined in the Canadian Tax Act.
Agreement shall
mean this Agreement for the Purchase and Sale of Resource Property,
including all Schedules hereto, as it may be amended from time to time in
accordance with its terms.
Applicable
Law shall mean any domestic or foreign law, statute, guideline,
ordinance, bylaw (zoning or otherwise), order, judgment, decree or similar
restriction of any kind applicable to Seller or to any of the Purchased
Interest.
Assumed
Obligations shall have the meaning given to that term in Section 1.2
hereof, and shall include all Permitted
Encumbrances.
Canadian
Tax Act shall mean the Income Tax Act (Canada), as amended, and the
regulations made pursuant thereto.
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Closing shall
mean the consummation of the transactions contemplated
herein.
Closing
Document shall mean any document delivered in the process of
Closing as provided in or pursuant to this
Agreement.
Confidential
Information shall have the same meaning as Wolverine
Confidential Information set out in Schedule C,
the
Confidentiality Agreement.
Contract shall
mean any contract or commitment pertaining to the Purchased Interest
listed on Schedule
2.11
Encumbrance
shall mean any encumbrance of any kind including, without limitation, any
option, pledge, charge, lien, mortgage, trust, deemed trust, lease,
sublease, claim, covenant, condition or restriction (whether on sale,
transfer or disposition or otherwise), all limitations, conditions,
offsets, reservations, withholding, charges and government assessment or
work requirements and contractual commitments whether imposed by
agreement, law or otherwise, whether of record or
otherwise.
Governmental
Authority shall mean:
(a)the
Government of Canada or any provincial, territorial, regional, municipal,
local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory, or administrative functions
of or pertaining to government, and
(b)the
Government of the United States of America or any state, territorial,
regional, municipal, local or other political subdivision thereof and any
entity exercising executive, legislative, judicial, regulatory, or
administrative functions of or pertaining to
government.
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Interest
shall mean the following legal and beneficial interest in a
Property, subject to Assumed
Obligations:
(a)the
Purchased Interest of 90% of the whole interest,
and
(b)the
Shenin Interest of 10% of the whole
interest,
and shall
include all proceeds from the exploitation or sale or other disposition of the
Property.
Licence shall
mean the licences referred to on Schedule
2.7 Resource
Property, including without limitation any permit, approval, right,
privilege, or concession issued, granted, conferred or otherwise created
by a Governmental Authority that relate to the Purchased Interest, at
Closing or added to the Schedule in relation to a subsequent transaction
for further Property.
Minerals shall
mean all minerals, metals and industrial minerals
whatever.
Permitted
Encumbrance shall mean at the time of Closing any encumbrance of
any kind including, without limitation,
(a)any
option, pledge, charge, lien, mortgage, trust, deemed trust, lease,
sublease, claim, covenant, condition or restriction (whether on sale,
transfer or disposition or otherwise),
(c)government
assessment or work requirements and contractual commitments, including
without limitation the Work Commitments, whether imposed by agreement, law
or otherwise, whether of record or otherwise,
and
(d)the
security interest granted by and as evidenced in the Promissory
Note.
Person shall
mean any individual, body corporate, partnership, joint venture, trust,
association, unincorporated organization, Indian Band, the Crown, any
Governmental Authority or any other entity recognized by
law.
Promissory
Note shall mean the negotiable bill of exchange in the sum of
USD$34,000.00, substantially in the form of Schedule 1.4
hereto, which shall also contain the grant of the security
interest in the Purchased Interest set out
therein.
Property shall
mean the rights or territory in Labrador in respect of which Licences have
issued to or for the benefit of the Sellers, or may issue to or for the
benefit of the Sellers from time to time, to explore and take Minerals of
any nature whatever from the licenced claims, staked area or otherwise
acquired property interest described in the Schedule
2.7 Resource Property, to the extent permitted by
Governmental Authority and the particular
Licences.
Purchased
Interest shall mean in respect of a particular Property, an
undivided 90% interest in and to Sellers’ Interest in any particular
Property.
Seller shall
mean Shenin Resources Inc.
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Sellers’
Interest shall mean in respect of a particular Property, the whole
of the legal and beneficial right, title to and interest in the particular
Property, subject to all Assumed
Obligations.
Shenin
Interest shall mean
(a)an
undivided 10% of Sellers’ Interest in any particular Property, 90% of
which was sold to Buyer pursuant hereto;
(b)an
undivided 10% of Wolverine’s Interest in any particular Property owned in
any respect by it situated in Labrador which was not acquired from
Sellers, and
(c)an
undivided 100% of Seller’s Interest in any other Property of the
Sellers.
Staking
Records shall mean all staking, claim and licence records in
respect of the Purchased Interest, including without limitation, all
Confidential Information in relation
thereto.
Taxes shall
mean all taxes, charges, fees, duties, levies or other assessments,
including (without limitation) income, gross receipts, net proceeds,
capital, ad valorem, turnover, real and personal property (tangible and
intangible), sales, use, franchise, excise, value added, goods and
services, stamp, leasing, lease, user, transfer, fuel, excess profits,
occupational, interest equalization, windfall profits, severance and
employees' income withholding, unemployment, employer health and Social
Security taxes, which are imposed by Canada or any province, territory,
region, municipality or local or foreign government or any agency thereof,
and such term shall include any interest, penalties or additions to tax
attributable to such Taxes.
USD shall
mean dollars of the currency of The United States of
America.
Page
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Work
Commitments shall have the meaning set out in section 1.2(c)
hereof.
ARTICLE
I
PURCHASE
AND SALE
ASSUMPTION
OF CERTAIN LIABILITIES
1.1 Purchase and
Sale:
(a)Purchase and Sale of
Purchased Interest. Subject to the terms and conditions set forth
in this Agreement, as of the Effective Date the Sellers shall and do
hereby sell, assign, transfer and deliver to the Buyer, and the Buyer
shall purchase, accept, acquire and take assignment and delivery of the
Purchased Interest. The purchase price for the Purchased Interest shall be
THREE HUNDRED FORTY
THOUSAND (USD$340,000.00) US DOLLARS (the "Purchase Price");
(b)Fee to
Shenin: Buyer shall pay to Shenin the sum of THIRTY FOUR THOUSAND (USD$34,000.00)
DOLLARS, plus applicable goods and services taxes, considered to
have been earned for services rendered in respect of the within
transactions; and
(c)Transfer of 10%
Beneficial Interest to Shenin. Subject to the terms and conditions
set forth in this Agreement, as of the Effective Date, the Sellers shall
and do hereby sell, assign, transfer and deliver to Shenin for its own
benefit, and Shenin shall purchase, accept, acquire and take assignment
and delivery of, the 10% beneficial Shenin Interest. The purchase price
for the Shenin Interest shall be ONE (USD$1.00) US
DOLLAR, the receipt and sufficiency of which is hereby acknowledged
by each of the Sellers.
Page
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1.2 Assumed Obligations.
The Buyer assumes, and agrees to pay, perform, fulfil and discharge, from and
after the Effective Date, the obligations arising with respect to the Contracts
or Licences and otherwise as set out on or incorporated by reference
in Schedule
1.2, including without limitation, the following:
(a)the
payment of 100% of all assessment work and Work Commitments required by
any Governmental Authority or Contract or Licence in respect of each
Property in accordance with the terms of such Contract or from the time of
the grant of such Licence, and
(b)the
following commitments to perform work, assessment work, field exploration,
geophysical exploration or other improvements on the Property of
reasonably acceptable value to Shenin, or reasonably allocated to the
Property with the approval of Shenin, (herein called the “Work
Commitments”) as follows:
(iii)CAD$250,000
on or before March 1, 2010; provided
that
(iv)any
excess amount spent in one year may be carried forward and applied towards
fulfilment of the expenditure required in a later
year.
1.3 Excluded
Obligations. There are no excluded obligations.
1.4 Payment of Purchase Price,
etc. As of the Effective Date:
(a)Wolverine
Shares. The Buyer shall pay and satisfy the Purchase
Price due to the Sellers by means of issuance and delivery to the Persons
comprising the Sellers, according to their respective interests as set out
in Recital E above, the total of 34,000,000 voting common shares of the
Buyer, at an issue price of USD$.01 (one cent) each, as fully paid and
non-assessable, and
(b)Promissory
Note. The Buyer shall pay to Shenin for its own account the sum of
USD$34,000.00 at a future date and as of the Effective Date shall deliver
to Shenin for its own account the delay-demand Promissory Note in the
amount of USD$34,000.00, plus applicable taxes and the grant of the
security interest therein
described.
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ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF SELLERS
The
Sellers hereby represent and warrant to the Buyer as set out in the following
subsections of this Section and acknowledge that the Buyer is relying on such
representations and warranties in entering into this Agreement.
2.1 Due Incorporation.
The agent for the Sellers, Shenin Resources Inc., is a corporation duly
established, organized and validly existing in accordance with the laws of the
Province of Alberta, Canada with all requisite power and authority to be, and
is, the duly and irrevocably authorized agent of the Sellers, who are the legal
and beneficial owners of the Property.
2.2 Due Authorization.
Shenin, on behalf of the Sellers, has full power and irrevocable authority from
each of the Sellers to enter into this Agreement and to carry out the
transactions contemplated hereby, and this Agreement has been duly and validly
executed and delivered by Shenin for itself and on behalf of the Sellers and
constitutes the legal, valid and binding obligation of Shenin and each of the
Sellers, enforceable against them in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or other laws from time to time in effect that affect creditors'
rights generally, and by legal and equitable limitations on the availability of
specific remedies.
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2.3 Absence of Conflicting
Agreements. Except for the Assumed Obligations, to the knowledge of
Shenin, on behalf of the Sellers, none of the execution and delivery of this
Agreement, or the observance and performance by Shenin, on behalf of the
Sellers, of any covenant or obligation under this Agreement or any Closing
Document to which it is a party, or the Closing:
(a)contravenes
or results in, or will contravene or result in, a violation of or a
default under (with or without the giving of notice or lapse of time, or
both) or in the acceleration of any obligation under any Applicable Law,
any Contract or Licence, the constating documents of Shenin,
and the provisions of any agreement, lease, mortgage, security document,
obligation or instrument to which the Sellers are a party, or by which the
Sellers or the Sellers’ Interest is bound or
affected.
(b)relieve
any other party to any Contract, of that party's obligations thereunder or
enable it to terminate its obligations thereunder;
or
(c)result
in the creation or imposition of any Encumbrance, other than an Assumed
Obligation, on the Sellers’ Interest or any of the Purchased
Interest.
2.4 Consents. Except as
set forth on Schedule
2.4, no notice to, registration, declaration or filing with,
authorization of, exemption by, or consent, approval or order of any person,
entity or Governmental Authority is required in order for the Sellers to
consummate the transactions contemplated hereby or to avoid the loss of any
Licence relating to the Sellers’ Interest.
2.5 Title to and Condition of
Purchased Interest. The Sellers have good and marketable title to and are
the legal and beneficial owner of the Sellers’ Interest, including the Purchased
Interest listed on Schedule 2.5, and the
Sellers have the full right to sell, convey, transfer, assign and deliver the
Purchased Interest, free and clear of any Encumbrance, other than Assumed
Obligations. As of the Effective Date, the Sellers shall convey the
Purchased Interest to the Buyer by declarations of trust, deeds, bills of sale,
documents of title and instruments of assignment and transfer effective to vest
in the Buyer, and the Buyer will have, good and marketable title to all of the
Purchased Interest, free and clear of all Encumbrances, other than the Assumed
Obligations.
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2.6 No Defaults or
Violations. Except as set forth on Schedule 2.6, the
Sellers have not materially breached any provision of, nor are in material
default under the terms of, any Contract or Licence to which the Sellers are a
party or by which the Sellers are bound and which relates to the Sellers’
Interest and to the knowledge of Shenin, on behalf of the Sellers, no other
party to any such Contract or Licence is in breach or default thereunder in any
material respect.
2.7 Licences. The Sellers
hold all of the Licences described on Schedule
2.7. The Sellers have not received any notice of
revocation or modification of any such Licences and all Licences are assignable
or transferable to the Buyer to the extent of the Purchased
Interest.
2.8 Litigation. Except as
disclosed in Schedule
2.8, there are no actions, suits, labour disputes or other litigation,
proceedings or governmental investigations pending or, to the knowledge of the
Sellers, threatened against or affecting the Sellers or the Sellers’ Interest,
or relating to the transactions contemplated by this Agreement. The Sellers are
not subject to any order, judgment, decree, stipulation or consent of or with
any court or Governmental Authority which has or may have a material adverse
effect on the Sellers’ Interest.
2.9 Taxes. Each of the
Sellers is a resident of Canada within the meaning of the Canadian Tax Act. To
the best of the Sellers’ knowledge, there are no Encumbrances, other than
Assumed Obligations, against the Sellers’ Interest in respect of Taxes, and
there are no Taxes due and owing or that will become due and owing that shall
give rise to any such Encumbrance.
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2.10 Holding and Use of
Sellers’ Interest. The
holding and use of the Sellers’ Interest has been conducted in all material
respects in compliance with all Applicable Laws and the Sellers have not
received any notice of any alleged breach of any such Applicable
Laws.
2.11Contracts. Schedule 2.11 is an
accurate and complete list of all Contracts relating to the Sellers’
Interest.
2.12 Disclosure. Neither
this Agreement nor any other agreement, statement, list, certificate or other
information furnished or to be furnished by or on behalf of the Sellers or to
the Buyer in connection with this Agreement or any of the transactions
contemplated hereby contains any untrue statement of a material fact regarding
the Sellers, or the Sellers’ Interest, or omits or will omit to state a material
fact necessary to make the statements regarding the Sellers, or the Sellers’
Interest contained herein or therein, in light of the circumstances in which
they are made, not misleading.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF BUYER WOLVERINE
The Buyer
represents and warrants to the Sellers as set out the following subsections of
this Section and acknowledges that the Sellers are relying on such
representations and warranties in entering into this Agreement.
3.1 Due Incorporation.
The Buyer is a corporation duly organized and validly existing under the laws of
the State of Nevada, U.S.A., with all requisite corporate power and authority to
own, lease and operate its properties and to carry on its business as now being
conducted and as contemplated upon the acquisition of the Sellers’
Interest.
3.2 Corporate Authority.
The Buyer has all requisite corporate power and authority to enter into this
Agreement and to carry out its obligations under this Agreement. The execution,
delivery and performance of this Agreement by the Buyer has been duly authorized
by all necessary corporate action on the part of the Buyer. This Agreement
has been duly executed and delivered by the Buyer and constitutes the legal,
valid and binding obligation of the Buyer, enforceable against the Buyer in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or other laws from
time to time in effect that affect creditors' rights generally, and by legal and
equitable limitations on the availability of specific remedies.
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3.3 Consents. No notice
to, registration, declaration or filing with, authorization of, exemption by, or
consent, approval or order of any person, entity or Governmental Authority is
required in order for the Buyer to consummate the transactions contemplated
hereby.
ARTICLE
IV
COVENANTS
OF THE SELLERS AND SHENIN
Shenin,
on behalf of the Sellers, and for itself hereby covenants:
4.1 Security Deposits.
Subject to offset, Shenin shall pay and transfer the net amount of any refund of
security deposits made with any Governmental Authority to the Buyer if, as and
when received, and shall cooperate with Buyer at Buyer’s expense to secure such
refunds. From the Effective Date, Shenin shall hold, subject to
offset, the net amount of such refund of security deposits to and for the sole
use and benefit of the Buyer.
4.2 Confidentiality.
Except as required by any Governmental Authority, securities commission or stock
exchange, all information supplied to Shenin and the Sellers by Buyer shall be
maintained in strict confidence by Shenin and the Sellers and, in the event that
this Agreement is terminated, Shenin and the Sellers shall make no further use
of such information whatever, subject to the provisions of Schedule “C” Confidentiality
Provisions mutatis
mutandis.
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ARTICLE
V
COVENANTS
OF THE BUYER WOLVERINE
The Buyer
hereby covenants:
5.1 Confidentiality.
Except as required by any Governmental Authority, securities commission or stock
exchange, all information supplied to Buyer by Shenin and the Sellers shall be
maintained in strict confidence by Buyer and, in the event that this Agreement
is terminated, Buyer shall make no further use of such information whatever,
subject to the provisions of Schedule “C” Confidentiality
Provisions mutatis
mutandis.
5.2 Shared Information. Buyer
shall at all times without request therefor share with Shenin all information of
whatever nature respecting the Purchased Interest, or affecting the Sellers’
Interest, including without limitation its exploration, exploitation, nature and
disposition.
5.3 Property in Good
Standing. Buyer shall at all times keep the Property in good
standing with all Governmental Authority. Except with the prior
written consent of Shenin, which consent may be arbitrarily withheld without
disclosing any grounds therefor, Buyer shall not let any right or interest in
any Property lapse or otherwise terminate for want of fulfilment of assessment
work or similar obligation or bond or payment in lieu thereof as required by any
Governmental Authority.
5.4 Shenin’s 10% Carried
Interest. The Buyer shall from and after the Effective Date
pay 100% of all costs and expenses in relation to the ownership of the Property
and the exploration and development thereof without
(a)charge
to Shenin,
(b)contribution
by Shenin,
(c)liability
to Shenin, or
(d)Encumbrance
of the Shenin Interest in the
Property,
whatever.
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Without
limitation as to time, the Buyer shall, and hereby does, indemnify and save
harmless Shenin and the Sellers from all such charges, costs, liability or
Encumbrance and the Indemnity Provisions of Schedule D shall apply.
5.5 Transferees Bound by
Agreement. If Buyer sells or transfers its Purchased Interest,
or any part thereof, then it shall only do so provided that the Person acquiring
the Purchased Interest, or any part thereof, shall be bound by the provisions of
this Agreement.
ARTICLE
VI
CONDITIONS
PRECEDENT TO OBLIGATIONS OF BUYER WOLVERINE
The
obligations of the Buyer under this Agreement are subject to satisfaction of the
following conditions precedent and such conditions precedent are for the
exclusive benefit of the Buyer and the Buyer may waive compliance with any such
term or condition in whole or in part in the sole discretion of the Buyer and
such waiver shall not prejudice any of its rights under this Agreement or
otherwise:
6.1 Warranties True as of the
Effective Date. The representations and warranties of Shenin and the
Sellers contained herein shall be true in all material respects on and as of the
Effective Date of this Agreement.
6.2 Compliance with Agreements
and Covenants; Certificate. The Sellers shall have performed in all
material respects all of their respective obligations and agreements and
complied in all material respects with all of the covenants contained in this
Agreement to be performed and complied with on or prior to the Effective Date;
and Shenin, on behalf of the Sellers, shall have delivered to Buyer a
certificate dated as of the Effective Date, signed by a director or officer of
Shenin certifying as to compliance with Section 6.1 and this
Section
6.2.
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6.3 Consents, Authorizations and
Registrations. Any required consents, approvals, orders or
authorizations, or assurances satisfactory to the Buyer regarding the
transactions contemplated by this Agreement shall have been obtained as of the
Effective Date.
6.4 Actions or
Proceedings. No action or proceeding by any Governmental Authority shall
have been instituted or threatened which enjoins, restrains or prohibits or
would enjoin, restrain or prohibit, or might result in substantial damages in
respect of, and no court order shall have been entered which enjoins, restrains
or prohibits, or resulted in substantial damages in respect of, this Agreement
or the consummation of the transactions contemplated by this
Agreement.
6.5 Receipt of Closing
Documentation. All documentation relating to the sale and purchase of the
Purchased Interest, the assumption of the Assumed Obligations, and assignments
of the Contracts and Licences, transfers and conveyances and resolution of
Shenin, on behalf of the Sellers, relating to the due authorization and
completion of such sale and purchase and all actions and proceedings taken in
connection with the performance by Shenin, on behalf of the Sellers of their
obligations under this Agreement, shall be satisfactory to the Buyer and its
counsel acting reasonably. The Buyer shall have received duly executed copies of
the Closing Documents and all such documentation or other evidence as it may
reasonably request in form (as to certification and otherwise) and substance
satisfactory to the Buyer and its counsel.
6.6 Authorization. The
Buyer shall have received a certified resolution duly adopted by Shenin, on
behalf of the Sellers, approving this Agreement and the transactions
contemplated hereby as true and complete and not having been amended or
supplemented and as being of full force and effect as of the Effective
Date.
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6.7 Board Approval. The
Buyer shall have obtained the requisite approval of its board of directors to
purchase the Purchased Interest as of the Effective Date.
6.8 In
Trust. As of the Effective Date, Shenin, on behalf of the
Sellers, shall hold the Purchased Interest and all proceeds in respect thereof
in trust for the sole use and benefit of Buyer and shall cooperate at any time
to cause such interest to be transferred, subject to Assumed Obligations, to
Buyer and at no cost to Buyer other than the cost of the actual fee paid or
payable to the Government Authority for the transfer to Buyer of the Purchased
Interest.
ARTICLE
VII
CONDITIONS
PRECEDENT TO OBLIGATIONS OF SELLER SHENIN
The
obligations of the Sellers under this Agreement are subject to satisfaction of
the following conditions precedent and such conditions precedent are for the
exclusive benefit of the Sellers and Shenin, on behalf of the Sellers, may waive
compliance with any such term or condition in whole or in part in the sole
discretion of the Shenin, on behalf of the Sellers, and such waiver shall not
prejudice any of its rights under this Agreement or otherwise:
7.1 Warranties True as of
Effective Date. The representations and warranties of Buyer contained
herein shall be true in all material respects as of the Effective Date of this
Agreement.
7.2 Compliance with Agreements
and Covenants; Certificate. Buyer
shall have performed in all material respects all obligations and agreements and
complied in all material respects with all covenants contained in this Agreement
to be performed and complied with on or prior to the Effective Date; and Buyer
shall have delivered to Seller a certificate, dated as of the Effective Date,
signed by a director or officer of the Buyer certifying as to its compliance
with Section
7.1 and this Section
7.2.
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7.3 Consents and
Approvals. All consents, approvals, orders and authorizations in writing
reasonably satisfactory to Sellers shall have been received by Buyer from any
lenders, lessors, Governmental Authorities or other persons or entities whose
consent, approval, order or authorization is required to be obtained by Buyer
for the consummation of the transactions contemplated by this
Agreement.
7.4 Actions or
Proceedings. No action or proceeding by any Governmental Authority shall
have been instituted or threatened which enjoins, restrains or prohibits or
would enjoin, restrain or prohibit, or might result in substantial damages in
respect of, and no court order shall have been entered which enjoins, restrains
or prohibits, or resulted in substantial damages in respect of, this Agreement
or the consummation of the transactions as contemplated by this
Agreement.
7.5 Receipt of Closing
Documentation. Shenin shall have received duly executed copies of the
Closing Documents and all such documentation or other evidence as it may
reasonably request in form (as to certificates and otherwise) and substance
satisfactory to Shenin and its counsel.
7.6 Authorization. Shenin
shall have received a certified resolution duly adopted by the Board of
Directors of the Buyer approving this Agreement and the transactions
contemplated hereby as true and complete and not having been amended or
supplemented and as being of full force and effect on the Effective
Date.
ARTICLE
VIII
CLOSING
8.1 Closing. Closing
shall occur by the exchange of duly executed Closing Documents on a priority
basis. The matters relating to Closing shall be in fulfilment of this
Agreement and as agreed between counsel for the Parties, acting reasonably and
in accordance with the terms of this Agreement.
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8.2Effective
Date: The effective date shall be for all purposes February28, 2007.
ARTICLE
IX
TERMINATION
9.1 Termination. This
Agreement may be terminated at any time on or prior to the completion of the
Closing:
(a)With
the mutual consent of the Seller and
Buyer;
(b)By
Buyer, if any of the conditions provided in Article VI
shall not have been satisfied, and Buyer shall not have waived such
failure of satisfaction;
(c)By
Sellers, if any of the conditions provided in Article VII
shall not have been satisfied, and Sellers shall not have waived such
failure of satisfaction; or
(d)By
Sellers or Buyer, if the Closing shall not have commenced or taken place
on or before March 31, 2007 or such later date as may be mutually approved
in writing by Buyer and Sellers.
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9.2 In the event
of any termination pursuant to Section 9.1 (other
than pursuant to Section 9.1(a)),
written notice setting forth the reasons thereof shall forthwith be given by
Buyer, if Buyer is the terminating party, to Shenin, or by Shenin, if Shenin or
the Sellers are the terminating party, to Buyer.
ARTICLE
X
SURVIVAL
AND REMEDY: INDEMNIFICATION
10.1 Survival of Representations
and Warranties. All representations and warranties made by the Parties
pursuant to this Agreement or any Closing Document shall survive the Closing and
shall expire as of 11:59 p.m., Mountain Standard Daylight Time (Calgary), on the
date which is the second anniversary of the Effective Date, except for the
representation and warranty in:
(a)Section 2.5, as
it relates to title and condition of the Purchased Interest which shall
survive the Closing indefinitely,
and
(b)Section 2.9,
which shall survive the Closing until the expiry of all limitation periods
under applicable tax legislation.
10.2 Survival of
Covenants.
(a)The
covenants of the Sellers, including the Confidentiality
Provisions of Schedule C (¶10), and the indemnification obligations
of the Sellers shall survive forever;
and
(b)The
covenants of the Buyer, including the Confidentiality
Provisions of Schedule C (¶10), and the indemnification obligations
of the Buyer shall survive forever.
10.3 Indemnification bv the
Sellers and Others. The Sellers agree to, and hereby do, indemnify the
Buyer and each of its Affiliates against, and agrees to hold it and them
harmless from, any and all losses incurred or suffered by the Buyer or any of
its Affiliates or any combination thereof arising out of any of the following:
(i) any breach of or any inaccuracy in any representation or warranty made by
Shenin, on behalf of the Sellers, or by the Sellers, pursuant to this Agreement
or any Closing Document, and any breach of or failure by Shenin or the Sellers
to perform any covenant or obligation of the Sellers set out in this Agreement
or any Closing Document; and (ii) the ownership of the Purchased Interest on or
prior to the Effective Date.
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10.4 Indemnification by the
Buyer. The Buyer agrees to indemnify the Seller and each of its
Affiliates against, and agrees to hold it harmless from, any and all losses
incurred or suffered by the Seller or any of its Affiliates, arising out of any
of the following: (i) any breach of or any inaccuracy in any representation or
warranty made by the Buyer pursuant to this Agreement or any Closing Document,
and any breach of or failure by the Buyer to perform any covenant or obligation
of the Buyer set out in this Agreement or any Closing Document; or (ii) the
ownership of the Purchased Interest from and after the Effective Date to the
extent such losses arise in connection with and relate to periods commencing
after the Effective Date.
10.5 The Indemnification Provisions
set out in Schedule D shall apply to this Agreement, including paragraphs
10.3 and 10.4 above.
ARTICLE
XI
GOOD
FAITH AND FULL DISCLOSURE
11.1 The Buyer
agrees to consult with Shenin regarding any exploration and development
activities in Labrador.
11.2 The parties
shall at all times deal in good faith with each other in respect of all matters
pertaining to this Agreement and relevant in the broadest sense to this
Agreement and ongoing matters pertaining to the Property.
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11.3 The parties
shall at all times fully disclose to each other without request
therefor all information pertaining to the Property which is subject of
this Agreement and relevant in the broadest sense to this
Agreement and ongoing matters pertaining to the Property.
11.4The
Buyer agrees to make such complete and timely disclosures of information to
Shenin as may be required to enable Shenin to consult with Buyer concerning any
matters relating to Buyer's existing or proposed activities, including but not
limited to environmental, engineering and financial studies and data. Buyer
commits to provide reports to Shenin at least on a quarterly basis during times
of active exploration activities which summarize the relevant technical data,
and to brief Shenin as soon as practicable about the results of exploration
activities.
ARTICLE
XII
ADDITIONAL
PROPERTY
12.1 Right of First Refusal for
Additional Property. Shenin, for itself and on behalf of the
Sellers, hereby agrees to Offer to Buyer within ninety (90) days a 90% Purchased
Interest in all further Property in Labrador, Canada which Shenin or any of the
Sellers may acquire from time to time.
12.2 Refusal of Additional
Property. Buyer does not have to accept such Offer in respect
of any particular Property. In such event, Seller is at liberty to
deal with such additional property as it sees fit, subject to the conditions of
Schedule
E Right of
First Refusal Provisions.
12.3 Right of First Refusal
Provisions. The Right of First
Refusal
Provisions of Schedule E shall apply hereto.
12.4 Non-Circumvention. Buyer
shall not acquire any interest in Property in Labrador, Canada except through
Shenin, and if it does so, or purports to do so, then Shenin may seek equitable
relief by way of interim or permanent injunction or temporary or permanent
restraining order pursuant to paragraph B.4.2.4 and other provisions of the
Dispute Resolution
Provisions of Schedule B, adopted in Schedule A paragraph A.7 and
A.21.
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12.5 Deemed Shenin Interest
in
Labrador. Except for Property in which Shenin already has a
10% Interest hereunder, Shenin shall be entitled to receive and shall receive
the Shenin Interest for an unlimited time, being an undivided 10% Interest, in
any Interest of the Buyer in any other Property of the Buyer, or its Affiliate
or any entity in which it has any direct or indirect economic or financial
interest, in Labrador only, where such Property was acquired in any manner
whatever during the term of this Agreement or within a period of THREE (3) years
thereafter in the event of termination of this agreement.
12.6 In
Trust. Buyer shall hold the Shenin Interest and all proceeds
in respect thereof in trust for the sole use and benefit of Shenin and shall
cooperate at any time to cause such interest to be transferred free and clear of
any Encumbrance to Shenin without withholding, reservation, deduction or setoff
whatever, and at no cost to Shenin other than the cost of the actual fee paid or
payable to the Government Authority for the transfer to Shenin of the Shenin
Interest.
ARTICLE
XIII
MISCELLANEOUS
13.1 Schedules Incorporated
Herein. The following Schedules are hereby incorporated herein
by reference as part of this Agreement as if expressly set out herein, it being
agreed that the placement of the matters into discreet schedules is a matter of
convenience and the matters are of equal importance as any other provision of
this Agreement.
Schedule
AGeneral Terms and Conditions
Schedule
BDispute Resolution Provisions
Schedule
CConfidentiality Provisions
Schedule
DIndemnification Provisions
Schedule
ERight of First Refusal Provisions
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered on the date first above written.
Section 2:certain Representations and
Warranties of Sellers.
2. However, if a
Schedule is referred to in a paragraph in the body of the Agreement, but no
Schedule appears at the end of the Agreement, then the exceptions which may have
existed and been referred to in the Schedule are deemed to read “nil”
in all cases.
3. The
following:
Schedule
AGeneral Terms and Conditions
Schedule
BDispute Resolution Provisions
Schedule
CConfidentiality Provisions
Schedule
DIndemnification Provisions
Schedule
ERight of First Refusal Provisions
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SCHEDULE
1.2
ASSUMED
OBLIGATIONS
1.All
Permitted Encumbrances
2.The
sum of THIRTY FOUR
THOUSAND (USD$34,000.00) US DOLLARS, evidenced by the Promissory
Note and security interest granted
therein
3.100%
of all assessment work and work commitments required by any Governmental
Authority or Contract or Licence in respect of each
Property,
4.the
Work Commitments set out herein (see Section
1.2):
FOR VALUE
RECEIVED, the Undersigned Maker hereby promises to pay to or to the order of
SHENIN RESOURCES INC.
(the “Payee”) at 103 Huntcroft Place NE, Calgary, Alberta, Canada T2K
4E6, or at such other place as may be designated in writing by the holder of
this Note, the sum of
THIRTY-FOUR THOUSAND (USD$34,000.00) DOLLARS, without interest until
Demand, and thereafter at the annual rate of TEN (10%) PER CENT from the date of
Demand, compounded semi-annually not in advance, payable in US funds by
certified cheque, money order or other means acceptable in writing by the Payee
from time to time.
The
principal amount of this note shall be due and payable on demand after May 31,2007. The Maker shall have the right to prepay the principal amount
of the Promissory Note in whole or in part from time to time without notice,
bonus or penalty provided that there are no arrears of any payment due and
payable.
The Maker
hereby waives diligence, presentment, protest and demand and also notice of
protest, demand, dishonour and non-payment of this Note.
The Maker
hereby grants to the payee a security interest in the whole of the Purchased
Interest in the Property acquired under the Agreement therefor, effective
February 28, 2007, further to which this Note is issued and all present and
future after-acquired personal property of the Maker.
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The Maker
hereby agrees to pay all applicable costs in relation to this Promissory Note
(“Costs”). “Costs” shall include without limitation all Canadian
goods and services tax on the fees in respect of which this Promissory Note is
issued and all reasonable costs of collection when incurred, including actual
amounts paid to or liabilities incurred in respect of legal fees and costs,
accounting fees and costs, valuators fees and costs and such payment shall be on
a full indemnity basis in respect of all of these and all other related costs of
collection or costs in any manner involved in such realization upon security or
collection.
This note
shall be construed in accordance with the laws of the Province of Alberta,
Canada and the laws of Canada applicable therein. The parties hereby
irrevocably attorn to the jurisdiction of the Courts of the Province of Alberta,
Canada.
WOLVERINE EXPLORATION
INC.
Per:__________________________
Lee P. Costerd, President
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SCHEDULE
2.5
THE
PURCHASED INTEREST
1. NINETY PER
CENT (90%) of all Property at the time of Closing.
2. NINETY
PER CENT (90%) of all additional Property from time to time for additional
consideration.
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SCHEDULE
2.7
PROPERTY
LICENCES
FOR RESOURCE PROPERTY
1. The
following Licences for Mineral claims in the Province of Newfoundland and
Labrador, Canada:
(a)Government
of Newfoundland and Labrador
Map
Staked Licence #012425M, recorded August 18, 2006, comprising 82
Claims
Map
Staked Licence #012427M, recorded August 18, 2006, comprising 20
Claims
(b)Government
of Newfoundland and Labrador
Map
Staked Licence #013039M, recorded January 4, 2007, comprising 254
Claims
(c)Government
of Newfoundland and Labrador
Map
Staked Licence #013187M, recorded February 12, 2007, comprising 160
Claims
2. All
other Interests in property in Labrador, Canada as Shenin may acquire from
time to time.
3. All
other Interests in property in Labrador, Canada as Wolverine may acquire
from time to time.
1. The
Work Commitments in respect of the Property, including as set out in
Section 1.2(c).
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SCHEDULE
A
GENERAL
TERMS AND CONDITIONS
A.1 Interpretation: 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.2 Further Acts: In
order to fulfil the intent of the Parties hereto, they shall execute from time
to time all reasonable documents and do all such things as may be reasonably
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.3 Severability: 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. Further, the Parties shall use their best
efforts to negotiate an alternative provision which achieves the objectives of
the provision so declared to be invalid, unenforceable or otherwise
contrary to law.
A.4 Governing Law and
Jurisdiction: This Agreement shall be governed by and
construed pursuant to and in accordance with, including the enforcement thereof,
the laws of the Province of Alberta and the laws of Canada applicable
therein. The Parties hereby each agree irrevocably to attorn to the
jurisdiction of the Courts of the Province of Alberta, Canada.
A.5 Recitals: The
recitals hereto are incorporated herein as part of this Agreement.
A.6 Entire Agreement; No Oral
Agreements: This written Agreement comprises the entire
agreement and understanding of the parties hereto in respect to the transactions
contemplated hereby and supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof and is not intended to
confer upon any other person any rights or remedies hereunder. There
are no other applicable 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. 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.7 Default, Equitable Remedies and
Specific Performance: 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. Seller recognizes and affirms that in the event
of breach of any of the provisions of this Agreement, money damages would be
inadequate and Buyer would have no adequate remedy at law. Accordingly, Seller
agrees that Buyer shall have the right, in addition to any other rights and
remedies existing in its favor, to enforce its rights and Seller's obligations
under this Agreement not only by an action or actions for damages, but also by
an action or actions for specific performance, injunction and/or other equitable
relief in order to enforce or prevent any violations (whether anticipatory,
continuing or future) of the provisions of this Agreement.
A.8 Amendment 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, provided that all other agreements
referred to herein or contemplated hereby are similarly amended as
appropriate. 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.9 Notice: All
notices contemplated or required to be given hereunder shall be in writing and
shall be deemed to have been given, (i) when received if given in person, (ii)
on the date of acknowledgement of receipt if sent by telex, facsimile or other
wire transmission or (iii) ten (10) days after being deposited in the mail,
certified or registered mail, postage prepaid, 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, or at such other address as the Party to whom
such notice is to be given otherwise has prior directed in writing:
A.10 Waiver: Any waiver
of any term, covenant, representation or warranty, 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. The failure of a party hereto at any time or times to require
performance of any provision hereof shall in no manner affect its right at a
later time to enforce the same.
A.11 Warranty 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.12 Time: Time
is of the essence of each provision of this Agreement, including in particular
the Dispute Resolution
Provisions of Schedule B.
A.13 Force 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.14 Counterparts and Fax
Copies: This Agreement may be executed in counterparts and may
be delivered by fax or digital 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 and digital signatures (such as by email, pdfs, or scanned
images) shall be deemed to be accepted as original.
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A.15 No Partnership,
etc.: Nothing in this
Agreement, including co-ownership of undivided interests in Property, 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, undertaking or
otherwise.
A.16 No 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 both Shenin and Buyer.
A.17 Effect of
Investigations: Any due diligence review, audit or other
investigation or inquiry undertaken or performed by or on behalf of Buyer shall
not limit, qualify, modify or amend the representations, warranties and
covenants of, and indemnities by, Sellers and/or any member of the Contributors
made or undertaken pursuant to this Agreement, irrespective of the knowledge and
information received (or which should have been received) therefrom by
Buyer.
A.18 Publicity and Press Releases:
Except as required by Applicable Law, the securities commission or stock
exchange or as compelled by administrative or judicial process (and in any such
event, Seller shall consult with Buyer prior to making any disclosure), Seller
shall not, without the prior written approval of Buyer, disclose the Purchase
Price Ann terms hereunder. No announcement of such Purchase Price and terms
shall be made by the Seller without the prior approval of Buyer as to the
form, timing and manner of such announcement. Except as required by
Applicable Law or as compelled by administrative or judicial process (and, in
any event, Buyer shall consult with Seller prior to making any disclosure) Buyer
shall not, without the prior written approval of Seller, disclose the Purchase
Price and terms hereunder. Except as required by Applicable Law, no announcement
of the Purchase Price and terms shall be made by the Buyer without the prior
written approval of Seller as to the form, timing and manner of such
announcement.
A.19 Money - USD: All
references to money in this Agreement shall be in US Dollars unless expressly
stated to be otherwise, such as with respect to the Work Commitments, which are
expressed in CAD, meaning Canadian Dollars.
A.20 Expenses: The Buyer shall pay
a portion of the fixed fees and costs of the Seller to the extent of USD
$5,000.00 in respect of the Closing; but otherwise, each of the Buyer and Seller
shall bear its own expenses with respect to this transaction.
A.21 Dispute
Resolution: At any time while this Agreement and any of its
provisions are in force, should any dispute or question arise between Wolverine
and Shenin concerning the interpretation of this Agreement or any part thereof
which cannot be amicably resolved by Wolverine and Shenin, then such dispute or
question shall only be resolved by following the Dispute Resolution
Provisions of Schedule B hereto.
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A.22 Enurement: This
Agreement shall be binding upon and enure to the benefit of the Parties and
their respective successors and permitted assigns.
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SCHEDULE
B
DISPUTE
RESOLUTION PROVISIONS INCLUDING BINDING ARBITRATION
(International)
NOTE: THIS
ARTICLE CONTAINS A LIMITATION PERIOD OF SIX MONTHS AND LIMITS ALL REMEDIES FOR
AMOUNTS OVER $25,000 TO THIS DISPUTE RESOLUTION PROCEDURE WITHOUT ANY RIGHT TO
LITIGATE IN COURT
IMPORTANT
SUMMARY OF SCHEDULE B
DISPUTE
RESOLUTION PROVISIONS INCLUDING BINDING ARBITRATION
Summary: This
Dispute Resolution procedure is summarized as follows and requires the initials
and signatures on behalf of the parties before and after and shall be taken as
conclusive proof of the awareness and understanding of the parties to their
rights and obligations:
(Initial)_____________ (Initial)___________
Haderer Costerd
SUMMARY
OF
DISPUTE
RESOLUTION PROVISIONS INCLUDING BINDING ARBITRATION
NOTICE
OF LIMITATION DEADLINE TO RESOLVE DISPUTES
The
following notes are provided as a caution to the Parties and so that they will
know their rights and obligations. They summarize the Dispute
Resolution Provisions below in Schedule B which prevail over this summary in
interpreting the limitation deadline provisions for Dispute Resolution, so
reference ought to be made to them.
THIS
AGREEMENT CONTAINS A LIMITATION DEADLINE WITHIN WHICH TO MAKE CLAIMS AND RESOLVE
DISPUTES:
DISPUTE
RESOLUTION PROVISIONS INCLUDING BINDING ARBITRATION.
The
Dispute Resolution process replaces litigation and seeks fair, reasonable and
expeditious resolution of disputes: it 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 done 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
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(a). A
sample form of the Notice is in the final attachment to the Agreement at the
last page of the Agreement. Any similar notice will do.
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.
If a
Claimant misses either one of the Arbitration deadlines, the Claimant's claim is
finished and dismissed, the Claimant has no other avenue for relief and cannot
go to Court to litigate the claim.
If a
Claimant wrongfully attempts to litigate first, then the Claimant is also deemed
thereby to have elected irrevocably to abandon any relief by Arbitration but the
Claimant is still bound by all of the Arbitration provisions which say a
Claimant is not permitted to litigate. In effect, when the Court
dismisses the Claimant's claim because it must do so and cannot hear any such
litigation, then the Claimant has no other avenue for relief and cannot come
back and try Arbitration. Thus a Claimant litigates at the Claimant's
own peril, such that by breaching the covenant not to litigate the Claimant has
given up all other right of recourse.
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THE
UNDERSIGNED HAVE READ, UNDERSTAND AND AGREE WITH THE
FOREGOING DEADLINES AND CONSEQUENCES.
FOR SHENIN AND SELLERS
________________________ ________________________
Witness Richard
Haderer
FOR BUYER
________________________ ________________________
Witness Lee
P. Costerd
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DISPUTE
RESOLUTION PROVISIONS IN DETAIL
B.1 Dispute
Resolution and Binding Arbitration: In the event of dispute the
Parties agree to submit such issues for resolution in accordance with these
Dispute Resolution provisions, 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
below,
(b)mediation
as set out in Part I 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
below.
B.2 Limiting
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.
B.3 PART 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 Calgary, Alberta or
such other place as the Parties may agree for the purpose of resolving the
Dispute, and
(iv)the
following LIMITATION
NOTICE, or equivalent:
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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 page of the Agreement.
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.
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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.
Interest-Based Non-Binding
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 Court of Queen's Bench of Alberta.
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 Court of Queen's Bench of Alberta 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.4 Part
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.4.1 Matters 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, 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 in accordance with the rules of the
Alberta Arbitration Act
or applicable legislation and as such rules may be modified by this
Agreement.
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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.4.2 Procedure
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 Court of Queen's Bench of
Alberta. 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 Court of Queen's Bench of Alberta.
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
Calgary, Alberta 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 in any manner,
including without limitation by way of interim or permanent injunction,
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 Alberta 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.
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.
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B.4.3 Award 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.4.4 Award
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.4.5 Agreement 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.4.6 Arbitration
Provisions Survive Termination: The arbitration provisions hereof
shall, with respect to such controversy or dispute, survive the termination or
expiration of this Agreement.
B.4.7 Lack 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.4.8 Governing
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
Alberta and the laws of Canada applicable therein.
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SAMPLE
THIS
SHALL BE THE LAST PAGE OF THE AGREEMENT
SAMPLE
DISPUTE NOTICE WITHIN THE LIMITATION TIME
WRITTEN
NOTICE MADE THIS ___ DAY OF ________, 200_
TO: name other party
THE
LIMITATION DEADLINE IS DETERMINED AS FOLLOWS: describe calculation of limitation
deadline in accordance with information below
TAKE
NOTICE THAT the Undersigned Claimant hereby requests Senior Level Settlement
Negotiation: section B.3 PART I (a) for the following
matter:
(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 _____________[insert time and place at least 15 days after
service of this notice]_________________ ,
and
(iv)the
following LIMITATION NOTICES, or clear equivalent
information:
THE
AGREEMENT CONTAINS A LIMITATION DEADLINE WITHIN WHICH TO MAKE CLAIMS AND RESOLVE
DISPUTES
DISPUTE
RESOLUTION PROVISIONS INCLUDING BINDING ARBITRATION.
The
Dispute Resolution process requires that the Parties first attempt Senior Level
Settlement Negotiation: section B.3 PART I (a), failing that then the
second step is to attempt non-binding Interest-Based Mediation: section B.3 PART
I (b) & (c). Failing this, 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 Mediation.
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YOU
MUST within 15 days after delivery of this Notice, submit to the other Parties a
written response, setting forth your position in respect of the Dispute and
providing copies of any supporting documentation.
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SCHEDULE
C
CONFIDENTIALITY
PROVISIONS
C.1 Wolverine and
Shenin covenant and agree to treat information received from the other party or
developed in the course of dealings with the other party as confidential, and to
not use any such information for its private commercial advantage or to disclose
such information to any third party without the prior consent of the other
party. For greater certainty, such consent in respect of the reporting of
factual data shall not be unreasonably withheld, and shall not be withheld in
respect of information required to be publicly disclosed by Wolverine
pursuant to applicable securities or corporation laws, regulations or policies.
Wolverine and Shenin further agree to cause and require any representatives,
directors, officers, and employees of Wolverine or Shenin who have reviewed the
legal terms of this Agreement to respect and be bound by the confidentiality
provisions of this Agreement.
C.2 Further to
the above, the parties each agree to be bound by the following Confidentiality
Agreement, as if they were the Receiving Party in favour of the other party
hereto, without further execution or delivery of the document.
C.3 The parties
each agree to require the following Confidentiality Agreement to be obtained
from all Persons to whom confidential information is disclosed at any
time.
CONFIDENTIALITY
AGREEMENT
THIS CONFIDENTIALITY
AGREEMENT, made by and between WOLVERINE EXPLORATION INC. of
Las Vegas, Nevada, U.S.A, and
SHENIN RESOURCES INC. of Calgary, Alberta, Canada
(hereinafter together called "Wolverine") and THE UNDERSIGNED (hereinafter
called "Receiving
Party")
WHEREAS:
A. Wolverine
Proprietary & Confidential Information includes all information
belonging to Wolverine, including, without limitation:
1. All
information relating to resource property and mineral exploration in
Labrador, Canada, or anywhere in the world, including any samples, assays,
drawings, maps, layouts, exploration data, subsequent expansion,
exploration, developments and improvements thereof, any information,
knowledge or ideas created, contributed or developed by Receiving
Party using or springing from or relating to Wolverine or its business
opportunities, the mineral exploration business and expansion plans,
opportunities and methods of Wolverine for all purposes whatever;
2. 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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3. All
project costing, supplier arrangements, alliances, financial and fiscal
information related thereto or to the business, holdings and structure of
Wolverine;
4. 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
5. 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.
B. Receiving Party
acknowledges that Wolverine Proprietary & Confidential Information has
and is being acquired and developed by Wolverine through the expenditure
of substantial time, effort, and money, and is a valuable and necessary
asset which Wolverine must retain in confidence and withhold from
disclosure and availability to others;
C. It is
desirable that Wolverine disclose certain of the Wolverine Proprietary
& Confidential Information to Receiving Party for the sole purpose of
evaluation, development, expansion, improvement, exploitation by or on
behalf of Wolverine or marketing thereof;
and
D. It is
the mutual desire of both parties hereto to preserve the secrecy and
confidentiality of Wolverine Proprietary & Confidential Information;
NOW,
THEREFORE, in consideration of the disclosure, the undertakings giving rise to
such disclosure, and the mutual promises, it is hereby agreed as
follows:
1. Wolverine, by
its servants or agents, has delivered or will deliver and/or disclose certain
Wolverine Proprietary & Confidential Information to Receiving Party to
enable the Receiving Party to assess, evaluate or otherwise investigate or be
involved with the mineral exploration opportunity, and use the Wolverine
Proprietary & Confidential Information for such purpose, but neither for
Receiving Party's other use nor further
disclosure.
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2. Except as
authorized by this Agreement or as otherwise authorized in writing by Wolverine
and for the benefit of Wolverine, Receiving Party agrees that with respect to
Wolverine Proprietary & Confidential Information which is disclosed orally
or otherwise identified in writing or physical embodiment form:
(a) It
shall not disclose Wolverine Proprietary & Confidential Information to
any other person or entity, including, without limitation, any parent,
subsidiary or affiliated corporations of the Receiving Party, independent
contractors, and other third parties
whatever;
(b) It
shall not use Wolverine Proprietary & Confidential Information for its
own account or purposes, or for the purposes of any other person or
entity, except as permitted under this Agreement;
(c) It
shall not make, photocopy, or otherwise reproduce or disclose any
documents or copies of documents containing disclosures of Wolverine
Proprietary & Confidential Information and any portion thereof;
(d) Except
as required by law and under oath, it shall not communicate or disclose to
others that Wolverine Proprietary & Confidential Information has been
disclosed to Receiving Party or that Receiving Party is utilizing the
Wolverine Proprietary & Confidential Information; and in the event
that disclosure is intended under this exception, then it shall at least
thirty (30) days beforehand advise Wolverine in writing with sufficient
detail that Wolverine at its own expense may obtain a Court Order
preventing or limiting such disclosure;
and
(e) It
shall not combine Wolverine Proprietary & Confidential Information
with other information nor disregard its obligations of confidence and use
by selecting a series of items of knowledge from unconnected sources and
fitting them together through its knowledge or use of Wolverine
Proprietary & Confidential Information and any portion thereof so as
to attempt to justify use thereof for its own account or purposes or that
of any other person or entity.
3. The
obligations in this Agreement shall not apply to:
(a) Information
which is in the public domain as of six (6) months before the date of
execution of this agreement or which later comes into the public domain
from a source other than the Receiving Party;
(b) Information
which as a matter of record Receiving Party had in its possession in
written or physical embodiment form prior to the date of execution of this
agreement from a source other than Wolverine; and
(c) Information
which comes to Receiving Party from a bona fide third party source having
the right to disclose such information to Receiving
Party.
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4. Receiving
Party agrees that:
(a) It
shall at no time solicit or induce any servant or agent of Wolverine to
form a commercial or employment relationship of any nature which would not
be exclusively in favour of
Wolverine;
(b) It
shall disclose Wolverine Proprietary & Confidential Information and
any portion thereof only to such of Receiving Party’s employees or agents
as are reasonably necessary to carry out the purposes of this Agreement
and make such employees or agents bound in writing by the obligations of
confidentiality and use contained in this Agreement before disclosure to
them;
(c) It
shall, upon request of Wolverine or its representatives or contractors,
forthwith return to Wolverine, any and all documents and or materials
containing Wolverine Proprietary & Confidential Information disclosed
to it, together with all copies
thereof.
(d) It
shall take all measures necessary in the circumstances to prevent
unauthorized disclosure of Wolverine Proprietary & Confidential
Information and it shall handle such information in accordance with
absolutely strict procedures which are intended to protect the Wolverine
Proprietary & Confidential Information from unauthorized use or
disclosure and in the event of such use or
disclosure
(i) to
immediately advise Wolverine in writing with all relevant details of any
unauthorized use or disclosure, and
(ii) to take
necessary action to recover the Wolverine Proprietary & Confidential
Information and to enjoin the use or further disclosure by the
third party.
(e) During
the term hereof and during any subsequent applicable non-competition term
and subject to the law protecting exploration, drilling or assay
information, proprietary rights and intellectual property as may be
applicable to Wolverine Proprietary & Confidential Information,
including the law of staked mineral claims, licences in respect thereof,
Receiving Party shall not register, record or apply for registration of
any mineral claim, or licence in respect thereof, within 10 kilometres of
any resource property staked by or on behalf of Wolverine, discovered,
identified or in which it has an expression of interest or which is
connected with, derived from or reasonably foreseeable as relating to
Wolverine Proprietary & Confidential Information imparted to the
Receiving Party.
5.Receiving
Party acknowledges and agrees:
(a)to
indemnify and hold harmless Wolverine from all loss, damages and expenses,
including reasonable lawyer's fees, which Wolverine may sustain as a
result of any unauthorized disclosure by Receiving Party hereunder;
and
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(b)that
by virtue of any prohibited disclosure of any Wolverine Proprietary &
Confidential Information, Wolverine shall be presumed to have suffered
irreparable harm and loss and that may and shall be quantified in monetary
terms, and further, notwithstanding any Dispute Resolution provisions such
as arbitration, Wolverine shall be entitled to injunctive or other
extraordinary relief as also being appropriate in the circumstances, with
such loss or damage being presumed and such relief granted without bond,
surety or indemnification whatever.
6. Receiving
Party agrees that all Wolverine Proprietary & Confidential Information,
including any information, knowledge or ideas created, contributed or developed
by Receiving Party using or springing from any Wolverine Proprietary &
Confidential Information, shall be legended: "Property of Wolverine" or as
otherwise directed by Wolverine. Copies thereof shall be forthwith
forwarded to Wolverine upon request.
7. Receiving
Party hereby acknowledges that no license rights, user rights or ownership
interest whatever in respect of the Wolverine Proprietary & Confidential
Information is hereby granted or transferred, either directly or by
implication.
8. Receiving
Party hereby acknowledges that it owes a fiduciary duty to Wolverine in respect
of Wolverine Proprietary & Confidential Information and its use, and further
hereby acknowledges that any financial gain, except where permitted in writing
by Wolverine, which it now or hereafter derives from the Wolverine Proprietary
& Confidential Information are held by the Receiving Property in trust for
the sole use and benefit of Wolverine, without reservation or offset
whatever.
9. Any
proprietary rights which Receiving Party has or purports to have which
constitute a discovery, expansion, development, improvement, enhancement or
combination of any of Wolverine Proprietary & Confidential Information shall
be held in trust for the sole use and benefit of Wolverine, without reservation
or offset whatever. The Receiving Party hereby assigns all such
rights to Wolverine royalty free and in perpetuity and hereby irrevocably
constitutes Wolverine to be its lawful attorney to execute all such assignments
and other documents necessary or desirable to implement such assignment of
rights for the purposes set out herein.
10. The
obligations of the Receiving Party created hereunder in respect of Wolverine
Proprietary & Confidential Information shall continue indefinitely beyond
the termination of any of the other agreements between the parties or any of the
parties.
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11. This
agreement shall be interpreted and enforced according to the laws of the
Province of Alberta, Canada. The Receiving Party hereby irrevocably
attorns to the jurisdiction of the Courts of that Province. The
recitals are incorporated herein. There are no permissions, consents
or authorizations in favour of the Receiving Party, except to the extent written
herein and including TEXADA
CONSULTING INC. Facsimile and digital signatures are as
effective as original signatures. This Agreement may not be changed,
modified, or amended except by the express written agreement of the parties
hereto. This Agreement shall be binding upon the heirs, successors and permitted
assigns.
WHEREFORE,
the Undersigned has hereby entered into this Confidentiality Agreement on the
_____ day of __________________, 2007.
Witness Receiving Party (Corporation,
if also representing it)
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Instructions: Make
copies to be signed: one per person, and make extras to have on hand
for others to sign, if permitted
1.Initial
each page
2.Date
and Sign in your Individual capacity at the bottom of page 4 and print
your name
Have
the witness sign and print his/her
name
3.If
you also represent a corporation or other entity, then insert the
corporate name or entity name and sign again, this time on behalf of the
corporation or other entity.
5.Obey
the Agreement: even if you are permitted to disclose the information,
the other person must sign a copy of this first.
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SCHEDULE
D
INDEMNIFICATION
PROVISIONS
D.1 Notice of
Claims: Assumption of Defence: The party entitled to indemnification
pursuant to the Agreement (the "Indemnified Party") shall give prompt notice to
the party who is obligated to indemnify (the "Indemnifying Party") of the
assertion of any claim or the commencement of any suit, action or proceeding by
any Person, in respect of which indemnity may be sought hereunder, specifying
with reasonable particularity the basis therefor and giving the Indemnifying
Party such information with respect thereto as the Indemnifying Party may
reasonably request (but the giving of such notice shall not be a condition
precedent to indemnification hereunder). The Indemnifying Party may, at its own
expense, participate in and, upon notice to the Indemnified Party and the
Indemnifying Party's written agreement that the Indemnified Party is entitled to
indemnification pursuant to this Article for losses arising out of such claim,
suit, action or proceeding, at any time during the course of any such claim,
suit, action or proceeding, assume the defence thereof; provided that the
Indemnifying Party's counsel is reasonably satisfactory to the Indemnified
Party, and the Indemnifying Party shall thereafter consult with the Indemnified
Party upon the Indemnified Party's reasonable request for such consultation from
time to time with respect to such claim, suit, action or proceeding. If the
Indemnifying Party assumes such defense, the Indemnified Party shall have the
right but not the duty to participate in the defense thereof and to employ
counsel, at its own expense, separate from the counsel employed by the
Indemnifying Party. Whether or not the Indemnifying Party chooses to defend
or prosecute any such claim, suit, action or proceeding, all of the parties
hereto shall cooperate in the defense or prosecution thereof.
D.2 Settlement or
Compromise: Any settlement or compromise made or caused to be made by
the Indemnified Party or the Indemnifying Party, as the case may be, of any such
claim, suit, action or proceeding shall also be binding upon the Indemnifying
Party or the Indemnified Party, as the case may be, in the same manner as if a
final judgment or decree had been entered by a court of competent jurisdiction
in the amount of such settlement or compromise. No party shall settle or
compromise any claim, suit, action or proceeding without the prior written
consent of the other party.
D.3 Failure to
Give Timely Notice: A failure to give timely notice as provided in
this Schedule shall not affect the rights or obligations of any Party except and
only to the extent that, as a result of such failure, any Party which was
entitled to receive such notice was deprived of its right to recover any payment
under its applicable insurance coverage or was otherwise directly and materially
damaged as a result of such failure.
D.4 Failure of
Indemnifying Party to Act: In the event that the Indemnifying Party
does not elect to assume the defense of any claim, suit, action or proceeding,
then any failure of the Indemnified Party to defend or to participate in the
defense of any such claim, suit, action or proceeding or to cause the same to be
done, shall not relieve the Indemnifying Party of its obligations
hereunder.
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D.5 Reductions
and Subrogation: If the amount of any loss at any time subsequent to
the time of making any payment under this section is reduced by
(a) any net
tax benefit to the Indemnified Party, or
(b) any
recovery, settlement or otherwise under or pursuant to any non-life
insurance coverage,
the
amount of such reduction (less any costs, expenses (including taxes) or premiums
incurred in connection therewith) together with interest thereon from the date
of payment thereof at Prime Rate shall promptly be repaid by the Indemnified
Party to the Indemnifier. Upon making a full payment under this section, the
Indemnifying Party shall, to the extent of such indemnity, be subrogated to all
rights of the Indemnified Party against any third party that is not an Affiliate
of the Indemnified Party in respect of the loss to which the payment made under
this section relates but only if the Indemnifying Party shall then be in
compliance with its obligations under this Agreement in respect of such
loss.
D.6 Interest: All
losses shall bear interest at a rate per annum equal to the Prime Rate plus two
(2%) per cent per annum, calculated and payable monthly, both before and after
judgment, with interest on overdue interest at the same rate, from the date that
the Indemnified Party disbursed funds, suffered damages or losses or incurred a
loss, liability or expense in respect of a loss, to the date of payment by the
Indemnifying Party to the Indemnified Party.
D.7 Rights in
Addition: The rights of indemnity set forth in this section are in
addition and supplemental to any other rights, actions, claims or causes of
action which may arise in respect of this Agreement and the transaction
contemplated hereby.
D.8 Set-Off: The
Indemnifying Party may set off against any amount due hereunder or otherwise to
Indemnified Party. The right to obtain payment on account of the liability of
Indemnified Party for losses by setting off all or part of such losses against
amounts otherwise due to such parties, shall not relieve the Indemnifying Party
of its continuing liability to indemnify the Indemnified Party in the event that
the amounts otherwise due to such parties at any time are not sufficient to pay
off and discharge completely the losses suffered or incurred by the Indemnified
Party.
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SCHEDULE
E
RIGHT
OF FIRST REFUSAL PROVISIONS
E.1 Offer: If Shenin acquires
additional Property, it shall offer in writing to the Buyer at least a 90%
undivided interest in the Property (the “Offer”) at whatever price it chooses
and the Offer shall remain open for acceptance for ninety (90)
days.
E.2 Contents of Offer: The Offer
shall include all of the following:
(a) it
shall be for not less than an undivided 90% interest in the Property; if
it is for more, the Buyer may elect to purchase only the undivided 90%
interest and such shall not be considered a counteroffer, but an
acceptance of the Offer to purchase an undivided 90% interest
in the Property;
(b) have
attached thereto a summary of the features of the Property, supported by a
copy of all information material and relevant to the Property in the
possession or control of the Shenin at the time of the Offer, and if such
information is no longer in the possession or control of Shenin, then
advice as to its last known whereabouts;
and
(c) contain
a bona fide cash equivalent as determined by Shenin of any consideration
proposed to be paid to Shenin which is other than cash, and shall set
forth the method of computing such cash
equivalent.
E.3 Alternatives for
Buyer: The Buyer may accept the Offer to the extent of an
undivided 90% interest in the Property or to the extent of more if more is
offered, reject the Offer, make a counteroffer in which case the Offer dies, or
do nothing and let the Offer expire.
E.4 Acceptance: If the
Offer is accepted, it shall close in accordance with its terms within thirty
(30) days of the date of acceptance.
E.5 No
Acceptance: If the Offer is not accepted by the Buyer in time,
then Shenin is free to sell the whole 100% of its Interest, or any portion of
its Interest, for a price and upon terms no less favourable than that made in
the Offer or upon price and terms commercially equivalent thereto or greater
than the Offer in the commercially reasonable opinion of Shenin. If
the price and terms are not identical to the Offer, they must be disclosed to
the Buyer. Such disclosure does not constitute an Offer, but may
afford grounds to invoke the Dispute Resolution
Provisions of Schedule
B. If the proposed third party purchaser is not at arm’s
length (within the meaning of the Canadian Tax Act) with Shenin, then Shenin
shall disclose fully the relationship with the proposed third party purchaser,
and such third party purchaser may only purchase if it covenants not to resell
the whole or the portion of the Interest acquired for less than it paid for one
year from the date of acquisition.
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E.6 Renewed Offer: If Shenin
wishes to sell or dispose of or effect the transfer of the Shenin Interest in
the Property, for a lower amount or different price and terms, then these
provisions shall again apply to any subsequent sale, transfer or disposition of
the Interest and so on from time to time.
THIS
SHALL BE THE LAST PAGE OF THE AGREEMENT
SAMPLE
DISPUTE NOTICE WITHIN THE LIMITATION TIME
WRITTEN
NOTICE MADE THIS ___ DAY OF ________, 200_
TO: name the other
party
THE
LIMITATION DEADLINE IS DETERMINED AS FOLLOWS: describe calculation of limitation
deadline in accordance with information below
TAKE
NOTICE THAT the Undersigned Claimant hereby requests Senior Level Settlement
Negotiation: section B.3 PART I (a) for the following
matter:
(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 _____________[insert time and place at least 15 days after
service of this notice]_________________ ,
and
(iv)the
following LIMITATION NOTICES, or clear equivalent
information:
THE
AGREEMENT CONTAINS A LIMITATION DEADLINE WITHIN WHICH TO MAKE CLAIMS AND RESOLVE
DISPUTES
DISPUTE
RESOLUTION PROVISIONS INCLUDING BINDING ARBITRATION.
The
Dispute Resolution process requires that the Parties first attempt Senior Level
Settlement Negotiation: section B.3 PART I (a), failing that then the
second step is to attempt non-binding Interest-Based Mediation: section B.3 PART
I (b) & (c). Failing this, 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.
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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 Mediation.
YOU
MUST within 15 days after delivery of this Notice, submit to the other Parties a
written response, setting forth your position in respect of the Dispute and
providing copies of any supporting documentation.
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Dates Referenced Herein and Documents Incorporated by Reference
