EXHIBIT 10.1
RESTATEMENT OF PURCHASE OPTION AGREEMENT-REPUBLIC OF PANAMA CONCESSIONS
THIS Restatement of Purchase Option Agreement - Republic of Panama Concessions
(hereinafter, "POA") is entered into effective this 15th day of September, 2004,
by and between the following parties:
Calais Resources, Inc., A British Columbia corporation with its headquarters in
Colorado, USA
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter, "Calais"); and
Panama Mining of Golden Cycle, a corporation of Panama
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter "PMGC"); and
Golden Cycle of Panama Mining
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter "GCPM")
("PMGC" and "GCPM" known together as the "Panama parties"); and
(and all parties together known as the "Parties" hereto);
WHEREAS PMGC and GCPM are the concession holders as to certain placer
concessions in the Republic of Panama, including one placer exploitation
concession, multiple placer exploration concessions, including marine placer
concessions, (together, the "placer concessions"), and applications for hardrock
exploration concessions and hardrock exploration concessions ("hardrock
applications and concessions"), which properties together are known as the Faja
de Oro Project ("Faja de Oro Project") in the Province of Veraguas (the hardrock
concessions and hardrock concession applications, together with a map of the
concession areas, are attached and incorporated as Exhibit A hereto, and further
described at Section 4 hereof); and
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WHEREAS the parties entered into a Purchase Option Agreement for the
hardrock concessions on October 6, 2000, and for the placer concessions on
December 31, 2001, which agreements were superseded in their entirety by a
certain Purchase Option Agreement dated February 28, 2003; and which February
28, 2003 Purchase Option Agreement was extended for a period of 210 days by a
certain Extension Purchase Option Agreement and Partial Acknowledgement of
Performance dated January 31, 2004; and
WHEREAS the parties entered into an interim Purchase Option Agreement on
or about September 5, 2004 intended to be replaced by a more thorough and
inclusive replacement agreement; and
WHEREAS the parties wish to enter into a new Purchase Option Agreement
superseding in its entirety the prior agreements, which agreement shall be
substituted in full for all of the prior agreements, including, but not limited
to, the interim Purchase Option Agreement of September 5, 2004;
NOW THEREFORE in consideration of certain payments made by Calais by and
on behalf of PMGC and GCPM pursuant to the interim agreement, and in further
consideration of the agreement by Calais to vend certain assets to PMGC and
GCPM, and to surrender its option to explore, operate and obtain title to the
placer concessions, and in further consideration of the mutual promises and
covenants of the parties, the receipt and adequacy of which are hereby
acknowledged and confirmed; the parties enter into the following Agreement:
1. Surrender of Placer Concessions and Deposits.
Calais does hereby agree to surrender any and all options or agreements
which it may have had in and to explore, develop, operate and mine, and/or to
acquire title to the placer concessions which were part of the Faja de Oro
Project, Republic of Panama. Calais shall
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execute such other documents as may be required to fully affect the surrender of
rights under the laws of the Republic of Panama, or to evidence such surrender
of contract rights under the laws of the State of Colorado. Calais shall retain
no rights to receive or to obtain royalties or payments from the placer
concessions.
2. Surrender of "Tin Goose" Boat.
Calais purchased a certain ocean-going boat and related and appurtenant
fixtures known generally as the "Tin Goose." Calais has paid for repairs and
berthing of the boat in the past, but shall be liable for no further costs and
expenses, or any attendant liabilities, unless specifically outlined in the
Interim Agreement and specifically re-stated here. Calais shall take all acts
necessary to surrender and transfer any title it may have in and to the Tin
Goose to PMGC under the applicable laws of the Republic of Panama. The following
liabilities or costs attributable to Calais are restated here: None.
PMGC and GCPM for their part hereby agree to accept any and all
liabilities associated with the acquisition, operation, repair, maintenance,
protection, refurbishment or berthing of the Tin Goose, bar none, and agree to
hold Calais, its affiliates and subsidiaries, harmless therefore, and to
indemnify them for any further costs, liabilities and expenses associated with
the Tin Goose, its acquisition, operation, repair, maintenance, protection,
refurbishment and berthing.
3. Surrender of Lands and Buildings.
Calais hereby agrees to surrender to GCPM all of the land, buildings, real
estate, leases or landholdings of Calais, or for which Calais funded
acquisition, at the Conception Village at the mouth of the Rio Conception, not
including any mineral rights herein related to the hardrock concessions. Calais
shall also surrender all small boats and motors located at the Conception
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Village. Calais shall take any acts as may be required by the laws of Panama to
affect such transfer or surrender.
In the event that Calais undertakes exploration operations at its hardrock
concessions as retained herein, PMGC shall make such lands and buildings
available at a reasonable local rental rate during the course of such
exploration, unless such lands and buildings are then subject to a prior sale or
lease commitment. Calais shall not be liable for any past or future cost,
expense, liability or tax related to such real estate, personalty, or its
management.
GCPM hereby agrees to hold Calais harmless from any future cost, expense,
liabilities or taxes related to such lands, buildings, or boats and to indemnify
Calais from any costs, expenses, claims, actions or liabilities which may
henceforth be asserted by any third party with relation to such lands, buildings
or boats.
4. Option to Purchase Hardrock and Terrestrial Concessions and Applications.
PMGC is the concession holder of the following terrestrial mining
concessions in the Veraguas District, Republic of Panama:
1-a Norte De ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇,▇,▇, and 4-3460 Hectares-El
Corregimento-Calovebora Del District, Santa Fe, Proviencia Veraguas, Panama;
2-a Cerro Guaison Zones 1, 2-4968 Hectares (Same legal description as Item 1-a);
3-a Golden Cycle of Panama-Zone 1-3000 Hectares (Same legal description as Item
1-a);
4-a Boca Del Rio Conception-Zones 1, 2, 3, 4-4980 Hectares (same legal
description as Item 1-a)
PMGC and/or Calais Resources Panama is the applicant for the following
concession:
Concession Application Nos. ________ and _________ which application was filed
with the Department of Minerals ("Minerales") on ________________________, and
accorded filing
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stamp _______________ and priority number ______________and which is currently
pending for issuance as an exploration concession or concessions (the
concessions and applications together, being all of the hardrock concessions and
applications). When the concession(s) is issued, it shall continue to be subject
to this agreement without further action. Any further action required to
register the interest of Calais in the concessions, the applications or new
concessions issued pursuant to the applications shall be taken promptly by PMGC
with the full advice and consent of Calais.
PMGC hereby grants to Calais the sole and exclusive option to acquire from
it the hardrock concessions for a price of $4.5 million U.S., exercisable at any
time within ten (10) years after the date hereof (the "Option Period"). To
maintain the Option in force, Calais shall perform those certain conditions and
make those certain payments described in Section 6 hereof.
In the absence of performance, PMGC may declare a default, and, if a
material default remains un-cured pursuant to the terms of Section 9 hereof, may
terminate such option. Such option may be exercised by Calais giving written
notice of such exercise hereof, closing to occur within thirty (30) days
thereafter at a time and location chosen by Calais in the State of Colorado.
During the term of such 10-year option, PMGC grants to Calais the full and
exclusive right to access, explore, prospect, drill, sample, operate, maintain,
mine and otherwise fully explore, develop and mine the property, using surface
or sub-surface means, and specifically including open-pit or heap ▇▇▇▇▇ methods,
including full and complete rights of access over any of the placer concessions
which Calais is surrendering here to gain access to the properties included in
the hardrock concessions for all purposes enumerated in this section, and all
purposes reasonably incident thereto, including full and complete use of the
surface area of the concessions for exploration, sampling, developing, mining,
processing, constructing shafts,
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mines, cuts, pits or mine-related facilities, milling, leaching and all other
reasonable purposes related to the exercise of such rights.
5. Representations Concerning Title and Maintenance of Title.
PMGC represents and warrants that it has a full and complete title to the
concessions and the applications, and that no third party has any rights
thereto, and subject only to the need to comply with the mining and mineral laws
of the Republic of Panama. PMGC represents and warrants that it has a full and
complete right to enter into this Option agreement regarding the hardrock
concessions, and that this agreement may be registered and recorded in the
records of Panama and such local jurisdictions that the rights of Calais
hereunder will be a matter of public record. If such interest under this Option
may be recorded in the records of Minerales under the laws of Panama, such
agreement shall be so recorded. If the assignment of this agreement to a Panama
or other corporation is required in order to register or to transfer such
interest, Calais shall have a full and complete right to assign this agreement
and the Option granted hereunder, and all of the benefits and burdens of such
agreement, to Calais Resources Panama or to such other Panama or other
corporation as Calais may designate to hold such rights. PMGC covenants herein
to keep Calais fully advised on a current basis as to the status of the
concessions and applications, and shall take no step to lien or encumber such
concessions, or to take any action which could result in their diminution or
termination, or to allow any third party to acquire any part of such title, or
to lien or encumber the same. PMGC shall provide Calais within thirty (30) days
after this date with complete and legible copies of all official documents and
correspondence related to such concession and applications, and shall supplement
such submittals as additional documents or correspondence are received. PMGC
shall advise Calais on an immediate basis of any pending change to the hardrock
concessions, the mining laws
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affecting the concessions, administrative or other proceedings affecting the
concessions or concession operations, or the applications.
Within thirty (30) days after the date of this agreement, PMGC and GCPM
shall provide Calais with a clear, concise and detailed written description of
the history of the hardrock concessions, including, specifically, the date and
timing of the original concession applications; when the concessions were
granted; the type of concessions granted; whether the concessions are subject to
any administrative proceedings or adjudications; the period of time remaining
for the conduct of exploration; whether the concessions are eligible for any
renewals of the exploration period; whether the concessions are currently being
reviewed for possible renewal, and the steps necessary to remain eligible for
any renewal or renewals or suspensions such that the exploration rights granted
under the concessions will remain contemporaneous with the ten-year option
period herein granted. In the event that Panama has passed a new Minerals Code
since the grant of the concessions, such description shall include a clear
explanation of how the concessions will be administered under such new or
updated mining code; whether the concessions will be eligible to be benefited by
the new code; whether applications or other administrative steps must be taken
to bring the concessions into conformity with the new law, or to preserve the
exploration and operating rights herein granted. The explanation shall also
contain a summary of the steps necessary to convert the exploration concessions
into exploitation concessions in order to enjoy the rights to operate, mine and
produce the concessions in the manner herein contemplated.
Calais shall have the full right and opportunity at any time, to confirm
such representations, warranties and covenants by examining the official records
of the Republic of Panama, by interviewing such officials or ex-officials as it
deems necessary, and by examining
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the local and Panama records of PMGC and GCPM, with which examination PMGC and
GCPM shall fully cooperate, for the following purposes:
a. To confirm the status and currency of the concessions and applications;
b. To determine that there exists no lien, encumbrance or limitation on the
title;
c. That such concessions include all of the lands represented and warranted,
and that such title and the right to conduct operations on the lands has
not been lost or placed in jeopardy;
d. To confirm that all taxes and fees have been timely paid; and
e. To confirm that the rights of Calais under this agreement are valid,
current, of record, and not otherwise subject to legal jeopardy and that
they may be properly optioned to Calais, and , upon closing, properly
registered in transferred to Calais; and
f. To confirm that such rights are in accord with the current mining laws of
Panama, including revisions of those laws which may occur from time to
time.
g. To confirm that the concessions validly confer exploration rights which
may be renewed or extended under the laws of Panama for a period which
includes the 10-year Option granted herein.
In the event that Calais discovers or determines the existence of defects
problems, PMGC and GCPM shall take all necessary steps to cure such defects or
problems, and to bring such concessions into compliance with the terms hereof,
and, to take such actions as necessary to remove the defects or the source of
legal jeopardy, and to ensure that the concession sights extend for the full
option period herein granted.
6. Actions to be Taken by Calais.
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a. PMGC and GCPM hereby acknowledge receipt of $22,500.00 US in
satisfaction of all financial obligations of Calais in Panama, or to
persons associated with or employed by PMGC and GCPM, including, but
not limited to, payments due to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or GEOMESSA, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, boat
docking fees, and fees or wages to guards or part-time employees, or
the village of Santa Fe. This total includes the September
concession taxes due. Calais shall not be responsible for any other
financial obligations related to prior agreements, and, shall not be
responsible for the payments of any further concession fees or
taxes, except as may be specifically related future payments
directly related to the hardrock concessions. PMGC hereby
indemnifies Calais, and covenants to hold it harmless for any other
payments, fees, costs or expenses related to Panama operations
preceding this date. Calais is intended to be complexly free of any
past, present or future expenses related to the placer concessions
or agreements, including, but not limited to costs, fees, accounts
payable, currently unknown or unquantified expenses, travel costs,
employment obligations, environmental expenses or obligations, land
or concession payments, legal expenses, fees or costs.
b. During each year in which the hardrock concession purchase option is
in force and effect, Calais shall timely pay all taxes and
concession fees, including local fees and taxes at the Village of
Santa Fe, attributable to the hardrock concessions. Calais shall
receive verifiable receipts of the payment of all taxes and fees
within ten (10) days after payment, including receipts from the
government of Panama and the village of Santa Fe. Calais may elect
to advance tax funds to and through
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to obtain local payment of taxes,
or, at Calais' election, may retain local counsel or a local
representative to pay such taxes and obtain a receipt therefore.
c. During the term of the Option, and, until such time as the Option is
exercised and closed, Calais hereby grants to PMGC and GCPM a two
percent (2%) Net Smelter Return ("NSR") royalty on all minerals
mined, processed and sold from the concessions during the term
thereof. Said NSR royalty shall be paid within thirty (30) days
after final settlement to Calais from the sale of all gold and other
minerals mined, processed and sold from the hardrock properties,
until such time as PMGC and GCPM have received total royalty
payments of $4.5 million U.S., at which time such royalty shall
terminate, the property shall be deemed fully paid, and title
thereto shall in all respects be transferred. All royalty amounts
paid prior to election and sale closing shall be applied
cumulatively against the purchase exercise price of $4.5 million US,
and payment shall have the effect of reducing the purchase price at
exercise. All such royalty amounts and any payment of the purchase
price shall be split as follows: PMGC___%; GCPM ___%. "NSR," as used
herein, shall mean the net returns to Calais from the smelter or
other arms length purchaser after deducting the costs of shipment of
ores, gold or concentrates to the smelter or other buyer, including
necessary insurance, security and transportation costs, and further,
after deducting the costs of smelting or refining, but not the costs
of mining or intermediate milling or processing.
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d. To maintain this agreement in full force and effect, Calais shall
pay to PMGC and GCPM the sum of US $25,000.00 per year beginning on
September 15, 2005, and on or prior to each September 15 thereafter,
and continuing through September 15, 2014, which payments shall
extend the term of this agreement until and through September 15,
2014. This agreement shall terminate, unless extended by the
parties, at midnight, Colorado time, September 15, 2014. The failure
to make any annual payment in timely fashion shall be an event of
default, and shall allow termination of this agreement if not cured
in accord with the notice-cure provisions of this agreement.
e. Commencing during the September 15, 2004 through September 14, 2005
option year (such annual period being an "option year"), and during
each succeeding option year during the Option term Calais covenants
to spend a minimum of $100,000 per option year on hardrock
exploration directly related to the hardrock Concessions. In any
year when Calais or its affiliates, venture partners or assigns
spends in excess of $100,000.00, such excess may be carried over
into subsequent years by being placed in a "carryover account".
Within thirty (30) days after the end of any option year, Calais
shall inform PMGC in writing of the costs and expenses expended in
exploration during that option year, and of the status of the
carryover account.
f. Qualifying expenditures hereunder for exploration of the hardrock
concessions shall be all costs and expenses of the exploration
program, including Panama related legal and administrative work,
both within and without the country of Panama, travel expenses of
personnel to and from Panama, including lodging and
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other expenses of Calais personnel or employees, or those of venture
partners, affiliates or assigns, in Panama, and, specifically
including all sums expended for conducting exploration and
reconnaissance work on the concessions, including the costs of
labor, equipment, tools, supplies, employee overhead and wages,
salaries of supervisory personnel, drilling, sampling, survey,
mapping, aerial or surface or satellite reconnaissance, excavation,
assay and other expenses, base camp expenses of all kinds, whether
in the field, at Conception Village, Santa Fe, or elsewhere, and
including any and all expenses related to maintaining and operating
the exploration program. Calais covenants its good faith in
accounting for such expenses, and in making debits or credits to the
carryover account, and reporting the same to PMGC. Calais shall
accompany such annual accounting with a general description of the
goals accomplished by the annual program. Calais shall have complete
rights to conduct such programs through venture partners, optionees,
purchasers, partner companies, or third parties in contract with
Calais.
7. Status of Calais Resources Panama.
PMGC and its officers have created a Panama corporation known as Calais
Resources Panama. The Panama corporation was created at the request and cost of
Calais. PMGC and GCPM agree to return the ownership, control and management of
such corporation to Calais at such time and on such terms as may be requested by
Calais. To the extent that the corporation must be headquartered or domiciled in
Panama, or, must have officers and directors who are citizens of Panama, or
maintain a local Panama representative, Calais shall retain its own local
representation and shall appoint such officers and directors to serve as it may
choose. PMGC
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and its employees shall cooperate in tendering such resignations, documents,
documentary filings or transfers as may be necessary to affect the transfer of
ownership by share certificate endorsement, or other necessary steps, and the
resignation of current officers and directors and the substitution of new
officers and directors, all of which shall be done promptly, in timely fashion,
and in full cooperation with Calais.
8. Appointment of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to Represent PMGC and GCPM.
PMGC and GCPM hereby appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as the person responsible
for receiving and disbursing, on behalf of PMGC and GCPM, all funds or other
items of consideration received from Calais during the 10-Year Option term. In
the event that Calais elects to make payments of taxes or fees on the hardrock
concessions through PMGC, or, to entrust other funds for the operation of Panama
operations to PMGC (at its sole election) PMGC and ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall
provide true and correct original receipts for such funds, which receipts shall
conform both to the acceptable business practices of Panama and the internal
accounting requirements for a public company in effect at Calais, and as relayed
in writing to PMGC. Such receipts shall be tendered in timely fashion, which
shall mean within 30 days after the transfer of funds by Calais, unless
otherwise agreed in writing.
9. Default and Cure.
In the event of any default or claimed default hereunder, the
non-defaulting party shall give written notice of default hereunder to the
defaulting party, specifying with reasonable detail the nature of the claimed
default. The defaulting party shall have sixty (60) days to remedy such default,
except in the cure of any default in making an annual payment, which cure period
shall be thirty (30) days after the date of delivery of the notice of default.
In the event that a default cannot be cured within sixty days, but cure is
commenced, cure may be completed if pursued
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with steady effort and diligence. In the event that a default is material to the
Option, and cure is not completed or commenced within the period provided, the
non-defaulting party may declare the agreement to be terminated.
In the event that a claimed defaulting party maintains in writing that
there is no default, and the party claiming the default does not agree, either
party may initiate arbitration over the issue of the existence of a default,
such arbitration to be conducted in Denver, Colorado, under the Commercial
Arbitration Rules of the American Arbitration association. The costs, expenses
and fees for the arbitration shall be paid by or attributable to the
non-prevailing party, and may be awarded by the arbitrator.
If the arbitrator rules that a default exists, the period for curing the
default shall run from the date of the issuance of the final ruling of the
arbitrator. The parties specifically agree that any dispute over the correct
calculation of royalty amounts or expenditures on work programs shall be
arbitrable events in the event that the parties cannot first agree on their
resolution, and that any dispute as to the making of a required annual payment
(other than disputes as to timeliness) shall not be an arbitrable event.
Either party may enforce an arbitration award in the forum provided herein
as the judicial forum for the resolution of disputes.
10. Intent to Resolve all Disputes Related to Past Panama Operations.
The Parties hereto intend to resolve hereby any and all disputes and
disagreements with respect to the past Panama operations of Calais and past
agreements with PMGC and GCPM, including any and all disputes related to
property ownership, payments of money owed, value of consideration received,
stock ownership, obligations of the Parties, and other issues, disputes and
disagreements of the Parties (the "Disputes").
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11. Representations and Warranties.
a. CALAIS. Calais represents and warrants to each of PMGC and GCPM
(understanding that each of the Parties will be relying on the
accuracy and completeness of the representations and warranties in
their determination to enter into this Agreement:
i. Calais is a corporation in good standing in British Columbia
and is qualified to conduct business in the state of Colorado.
ii. The person executing this Agreement on behalf of Calais is its
president. Calais has authorized its president to sign this
Agreement on its behalf, and has further authorized him to
deliver this Agreement to each of PMGC and GCPM and intends to
be bound to this Agreement in accordance with its terms.
iii. To the extent that Calais has stated any fact in this
Agreement, Calais (acting through and based on the knowledge
of its president) believes such fact to be true and correct in
all material respects.
b. PMGC AND GCPM. Each of PMGC and GCPM represents and warrants to
Calais (understanding that Calais will be relying on the accuracy
and completeness of the representations and warranties in its
determination to enter into this Agreement:
i. Each of PMGC and GCPM, is a corporation in good standing under
the laws of its jurisdiction of organization and is qualified
to conduct business in the countries, states or provinces
where the conduct of its business so requires.
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ii. The persons executing this Agreement on behalf of each of PMGC
and GCPM are its duly constituted officers as named on the
signature page hereof. Each of PMGC and GCPM has authorized
such officers to sign this Agreement on its behalf, and has
further authorized such officers to deliver this Agreement to
Calais and intends to be bound by this Agreement in accordance
with its terms.
iii. To the Extent that this Agreement states or sets out any
matters of fact with respect to the rights interests, claims
or obligations of PMCG and GCPM, such statements of fact are
true and correct in all material respects and any such
statements of fact do not omit to state a fact that ought
reasonably to be stated or that is necessary to make the
statement no misleading in light of the circumstances in which
it was made.
12. Mutual Releases.
a. CALAIS RELEASE
i. Upon its receipt of a fully executed and notarized copy of
this Agreement, Calais, for itself, its administrators,
officers, directors, shareholders, agents, representatives,
successors, and assigns, family members and related entities
(the "Calais Releasors"), shall and hereby does release,
acquit, and forever discharge PMGC and GCPM and each of them,
their affiliates, heirs, successors, officers, directors,
shareholders, and assigns, family members and related entities
(the "Panama Releasees"), of and from any and all obligations
or liability which it now has, has had, or may have, and from
all claims, demands, liens, actions, administrative
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proceedings, and causes of action, and from all damages,
injuries, losses, contributions, indemnities, compensation,
costs, attorney's fees and expenses of every kind and nature
whatsoever, whether known or unknown, fixed or contingent,
whether in law or in equity, whether asserted or unasserted,
whether sounding in tort or in contract, from the beginning of
the world to the date of this Agreement, related to, arising
from, or which may in the future arise from, Calais operations
in Panama and its prior contractual relations with PMGC and
GCPM, except for obligations or liability, or all claims,
demands, liens, actions, administrative proceedings or causes
of action contained in, created by or arising now or in the
future from this Agreement.
ii. Calais, on behalf of itself and the other Calais Releasors
agrees not to initiate of maintain any claim, suit or cause of
action, of any kind whatsoever, in or by way of any legal
proceedings or otherwise, against any of the Panama Releasees
based on any obligation or liability arising directly or
indirectly out of, or relating in any way to the subject
matter of any matter released hereunder pursuant to the
preceding paragraph.
b. PMGC AND GCPM PARTIES RELEASE
i. Upon their receipt of a fully executed and notarized copy of
this Agreement, PMGC and GCPM, for itself, or its
administrators, agents, officers, directors, shareholders,
representatives, successors, and assigns, family members and
related entities (the "Panama Releasors"), shall and hereby
does release, acquit, and forever discharge Calais, together
with its
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affiliates, managers, members, creditors, officers, directors,
shareholders, administrators, and agents, and its and their
respective representatives, successors and assigns, family
members and related entities (the "Calais Releasees"), of and
from any and all obligations or liability which is now has,
has had, or may have, and from all claims, demands, liens,
actions, administrative proceedings, and causes of action, and
from all damages, injuries, losses, contributions,
indemnities, compensation, costs, attorney's fees and expenses
of every kind and nature whatsoever, whether known or unknown,
fixed or contingent, whether in law or in equity, whether
asserted or unasserted, whether sounding in tort or in
contract, from the beginning of the world to the date of this
Agreement, related to, arising from, or which may in the
future arise from, Calais' operations in Panama and Calais'
prior contractual relations with PMGC and GCPM, except for
obligations or liability, or all claims, demands, liens,
actions, administrative proceedings or causes of action
contained in, created by or arising now or in the future from
this Agreement.
ii. PMGC and GCPM, on behalf of itself and the other Panama
Releasors agree not to initiate of maintain any claim, suit or
cause of action, of any kind whatsoever, in or by way of any
legal proceedings or otherwise, against any of the Panama
Releasees based on any obligation or liability arising
directly or indirectly out of, or relating in any way to the
subject matter of any matter released hereunder pursuant to
the preceding paragraph.
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c. The Parties warrant and represent to each other that they have had
the opportunity to be represented by legal counsel regarding this
Agreement and freely and voluntarily entered into this Agreement
upon the advice of such counsel as deemed by such Party to be
necessary or appropriate.
12. No Admission of Liability.
This Agreement, and compliance with or performance of any obligations
imposed by this Agreement, shall not be construed as an admission of liability
on the part of the Parties, such liability being hereby expressly denied. The
Parties' intent in this Agreement is to resolve the Disputes and avoid any
further differences or conflicts. The Parties herby represent that they have
neither filed nor caused to be filed any pending charges, suits, claims,
grievances or other action (hereinafter referred to as "Claims") which in any
way arise from or relate to the Disputes. Each Party further represent to each
other that such Party has not directly or indirectly assigned any Claims or
which are released herby to any other person.
13. Waiver.
Each of the Parties recognizes that, by the releases contained herein,
they are releasing claims and other matters that may be unknown at the present
time, and claims and other matters which may arise in the future from actions
taken prior to the date hereof. Each of the Parties affirmatively states that
this accurately sets forth the intent of such Party and waives any right it may
have to claim differently at any time in the future.
14. Defense.
This Agreement and the releases contained herein, may be pled as a full
and complete defense, counterclaim or cross-claim to, and may be used as a basis
for an injunction against, any action, suit, or other proceeding which may be
instituted, prosecuted or attempted in breach of
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this Agreement or the releases contained herein, or any other agreement
delivered pursuant hereto, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs.
15. Costs and Expenses.
The Parties shall each be responsible to pay their own attorneys' fees and
other costs and expenses incurred in connection with the negotiation and
drafting of this Agreement. Each Party shall release and forever hold the other
harmless from any liability to their attorneys for payment of such fees pursuant
to any agreement or understanding between each Party and their attorneys.
16. Accuracy of Factual Statements.
Each of the Parties represents to each of the other Parties that the
factual statements contained herein are true and correct to the best of such
Party's knowledge, and no Party will take any action or assert any position that
places into question or disputes the accuracy of any of the factual statements
made herein.
17. Governing Law; Jurisdiction.
This Agreement shall be governed by the laws of Colorado except to the
extent that the laws of Panama govern transactions and statements with respect
to the concessions or, as concern Calais Resources Panama. Each of the Parties
consents to the jurisdiction of the federal courts whose districts encompass any
part of the City of Denver, Colorado, or the state courts of the City and County
of Denver, Colorado, in connection with any dispute arising under this Agreement
and hereby waives, to the maximum extent permitted by law, any objection,
including any objection based on forum non coveniens, to the bringing of any
such proceeding in such jurisdictions. Each of the Parties agree that service in
person or by certified or registered U.S. Mail to their respective last known
address shall constitute valid in personam service upon
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such Party in any action or proceeding with respect to any matter as to which
such Party has submitted to jurisdiction hereunder.
18. Severability.
If any part of this Agreement shall be determined to be illegal, invalid
or unenforceable, the remaining part shall not be affected thereby, and the
illegal, unenforceable or invalid parts shall be deemed not to be a part of this
Agreement. Each Party represents and warrants that it has full capacity and
authority to settle, compromise, and release its claims and to enter into this
Agreement and that no other person or entity has acquired, or will in the future
acquire or have any right to assert, against any person or entity released by
this Agreement any portion of that Party's claims released herein.
19. Integrated Agreement.
This Agreement constitutes a single integrated contract expressing the
entire agreement of the Parties with respect to the subject matter hereof,
compromising any and all rights and obligations of the Parties, without
exception, and supersedes all prior and contemporaneous oral and written
agreements and discussions with respect to the subject matter hereof. This
Agreement may be amended or modified only by an agreement in writing signed by
the Parties. The failure by a Party to declare a breach or otherwise to assert
its rights under this Agreement shall not be construed as a waiver of any right
the Party has under this Agreement.
20. Counterparts.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
21. Authority.
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Each person executing this Agreement on behalf of an entity represents and
warrants to each other Party that such person has executed this Agreement with
all appropriate corporate or other authority, and that this Agreement is
intended to be, and is, binding upon such entity in accordance with its terms.
22. Good Faith.
Each of the Parties to this Agreement will work in good faith to
accomplish the purposes of this Agreement.
23. Notices.
All written notices required by this Agreement or any document delivered
pursuant hereto or as contemplated herein, must be delivered to the addresses
(or to such other address as may be specified by a Party) by a means evidenced
by a delivery receipt and will be effective upon receipt.
If to Calais If to PMGC or GCPM
----------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 675 ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, CFO Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
23. Survival.
The Parties agree that the obligations, representations and warranties
contained herein shall indefinitely survive the execution of this Agreement, the
delivery of all documents hereunder, and the completion of the transactions
contemplated herein.
IN WITNESS WHEREOF, the Parties have caused this agreement to be duly
executed as of the date first mentioned above.
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Calais Resources, Inc.
By: ________________________________ By: ________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Individually
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2004, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as President for Calais Resources
and individually.
Witness my hand and seal.
_______________________________________
Notary Public
My commission expires: ___________________.
GCPM
By: ____________________________________ By: _________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Executive ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Individually
Officer and Secretary
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2004, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as Chief Executive Officer and
Secretary of GCPM and individually.
Witness my hand and seal.
_______________________________________
Notary Public
My commission expires: ___________________.
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By: ________________________________ By: ________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Individually
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2004, by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as President of GCPM and individually.
Witness my hand and seal.
_______________________________________
Notary Public
My commission expires: ___________________.
By: ________________________________ By: ___________________________________
▇▇▇▇ ▇▇▇▇, Vice President ▇▇▇▇ ▇▇▇▇, Individually
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2004, by ▇▇▇▇ ▇▇▇▇, as Vice President of GCPM and individually.
Witness my hand and seal.
_______________________________________
Notary Public
My commission expires: ___________________.
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Golden Cycle of Panama Mining
By: ________________________________
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2004, by ___________________.
Witness my hand and seal.
_______________________________________
Notary Public
My commission expires: ___________________.
By: ________________________________
STATE OF COLORADO )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2004, by ___________________.
Witness my hand and seal.
_______________________________________
Notary Public
My commission expires: ___________________.
25
EXHIBIT A-1
LIST OF HARDROCK CONCESSION AREAS
EXHIBIT A-2
LIST OF HARDROCK CONCESSION APPLICATIONS
EXHIBIT A-3
MAP OF CONCESSION AREAS
