EXHIBIT 10.1
SALE AGREEMENT
THIS AGREEMENT made as of this 1st day of August, 2003
BETWEEN:
XXXX XXXXX XXXX, of
0000 XXXXX XXXX.,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0
(hereinafter called "DAEM"
OF THE FIRST PART
AND:
WIZBANG TECHNOLOGIES INC.
Xxxxx 000, 000-000 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx Xxxxxxxx.
X0X 0X0
(hereinafter called "Optionee")
OF THE SECOND PART
(collectively called the "parties")
WHEREAS:
A. DAEM owns the mineral claim, namely the DALHOUSIE Mineral Claim, situated in
the Xxxxxxx Area, Skeena Mining Division in the Province of British Columbia
referred to herein as the "Dalhousie Claim", the particulars of which are as
follows:
Claim Name Record Number Unit Record Date Expiry Date
----------- -------------- ---- ------------ ------------
Dalhousie Fr. 300895 1 June 3, l991 June 3, 2004
X. Xxxx agrees to grant an exclusive option to the Optionee to acquire all
of Daem's interest in and to the Dalhousie Claim, on the terms and conditions
hereinafter set forth.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of these presents
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1.0 DEFINITIONS
In this agreement and in all schedules attached to and made a part hereof, the
following words and phrases shall have the following meanings, namely;
reference herein to the "Dalhousie Claim" includes any mineral leases or other
interests into which such mineral claims may have been converted;
"Option to Purchase" means the grant by Daem to the Optionee as set forth
in paragraph 4.01 hereof;
"Commercial Production" means the carrying on of mining operations on the
Dalhousie Claim or any part thereof for 40 consecutive days (exclusive of
holidays) on which a minimum of 10 tons per day of ore is mined and processed on
the site or delivered for processing at another processing facility not located
on the Dalhousie Claim, for processing.
"Net Smelter Returns" means the proceeds from marketable minerals produced from
the claim and received by the Optionee from the sale thereof.
"Net Smelter Royalty" means four percent (4%) of Net Smelter Returns
"Post split shares" mean shares as calculated after the 2 for 1 split described
in this Agreement. Said shares are to be adjusted in the same manner as other
common shares for any future forward or reverse splits.
2.0 REPRESENTATION AND WARRANTIES OF DAEM
Daem represents and warrants to the Optionee that:
he is the registered and beneficial owner of the Dalhousie Claim, and that the
Dalhousie Claim was properly and legally staked, recorded and tagged in
compliance with laws of the Province of British Columbia, and there are no
disputes over the title, the staking or the recording of the Dalhousie Claim.
he is the holder of a valid Free Miner's Certificate issued pursuant to the laws
of the Province of British Columbia and shall maintain such license in good
standing for the remainder of 2003 and will apply to renew the Free Miner's
Certificate for 2004.
the Dalhousie Claim is in good standing with the Office of the Mining Recorder,
having an expiry date of June 3rd 2004, and are free and clear of any claims,
liens, charges or encumbrances of any nature and no adverse claim or challenge
against the ownership of or title to the Dalhousie Claim has been made nor to
the knowledge of Daem is there any basis therefor and there are no outstanding
agreements or options to acquire or purchase the Dalhousie Claim or any part
thereof.
Daem acknowledges that the representations and warranties set forth herein form
part of this agreement and are the conditions upon which the Optionee has relied
in entering into this Agreement, and that these representations and warranties
shall survive the option agreement for the Dalhousie Claim hereunder by the
Optionee.
3.0 REPRESENTATIONS AND WARRANTIES OF THE OPTIONEE
The Optionee represents and warrants to Daem that:
it is a corporation duly organized, validly existing and in good standing under
the laws of the State of Washington, United States Of America with full power,
absolute authority and capacity to enter into this Agreement and to carry out
the transactions contemplated hereby, all of which have been duly and validly
authorized by all necessary corporate proceedings.
The Optionee acknowledges that the representations and warranties hereinbefore
set out form a part of this Agreement and are conditions upon which Daem has
relied in entering into this Agreement, and that these representations and
warranties shall survive the option of the Dalhousie Claim hereunder to the
Optionee.
4.0 GRANT OF OPTION TO PURCHASE
Daem hereby grants to the Optionee the sole and exclusive right and option,
subject to the terms of this Agreement, to acquire the entire right, title and
interest in the Dalhousie Claim, free and clear of all claims, liens, charges
and encumbrances, save and except for those set out herein, on the following
terms and conditions, namely:
1) the Optionee shall pay $10,000 USD to Daem within ninety days of the date
of this Agreement.
2) the optionee shall, as soon as practical, forward split the shares of
Wizbang Technologies Inc. on a two for one basis and Xxxx Xxxxxxxxxxxxx
will cancel appropriate shares to leave 10.1 million shares issued and
outstanding.
a) the Optionee shall issue 200,000 post split fully paid and
non-assessable shares in its capital stock to Daem, as follows:
b) 100,000 post split shares will be issued within ninety days of the
date of this Agreement
3) a further 100,000 post split shares on the beginning of any exploration
program which the Optionee carries out on the Dalhousie Claim.
4) Daem agrees to be retained by Optionee for the purpose of using his Free
Miner's Certificate for a period of no less than two years.
5) the Optionee shall also allot and issue 300,000 fully paid and
non-assessable post split shares (adjusted for any future share splits or
dividends) in its capital stock to Daem, upon the Dalhousie Claim being put
into Commercial Production under the following terms and conditions:
a) If Wizsbang Technologies Inc. is acquired by a publicly traded company
the shares of Wizsbang Technologies Inc. will be paid as outlined
above prior to the completion of the acquisition.
b) If the Dalhousie Claim is sold to a Public or Privately held company
Daem shall receive a 4% (four percent) Net Smelter Royalty payment on
all ore produced from the Dalhousie Claim. The Net Smelter Royalty
shall become payable following the commencement of Commercial
Production. The Net Smelter Royalty, if any payable for each quarter
year shall be paid within sixty (60) days after the end of the quarter
year to which the royalty relates, accompanied by a statement of the
Net Smelter Returns for the quarter year in question. The balance, if
any, of the Net Smelter Royalty payable for a full year shall be paid
within ninety (90) days after the end of such year, accompanied by a
statement of the Net Smelter Return for such year, duly certified by
the Optionee's auditor.
c) All remaining terms and conditions in this agreement will remain in
force and be carried forward to the acquiring entity.
5.0 TRANSFER OF CLAIMS
Upon execution of this Agreement, Daem shall deliver to the Optionee a duly
executed registrable transfers of the Dalhousie Claim, in favour of the
Optionee.
The Optionee shall be entitled to register all transfers contemplated in
paragraph 5.01 hereof at its own cost in order to effect transfer of legal title
to the Dalhousie Claim into the name of the Optionee, provided that the Optionee
shall hold the Dalhousie Claim subject to the terms of this Agreement, it being
understood that the transfer of legal title to the Optionee prior to its
exercise of the Option to Purchase is for administrative convenience only.
6.0 TERMINATION
This agreement shall terminate:
if the Optionee fails to pay any sum on or before the relevant dates set forth
therein; or
prior to the exercise by the Optionee of the Option to Purchase hereunder, upon
receipt by Daem of Notice from the Optionee that the Optionee is terminating its
Option to Purchase.
7.0 SURRENDER OF CLAIMS
The Optionee may at any time elect to surrender the Dalhousie Claim by giving
notice to Daem of such intention. For a period of 60 days after receipt of such
notice Daem may elect to have the Dalhousie Claim in respect of which such
notice has been given transferred to Daem by giving notice to the Optionee
requesting same, whereupon the Optionee shall deliver to Daem a registrable
transfer transferring such Claim to Daem. If Daem fails to request a transfer
of the Dalhousie Claim to be surrendered within such 60 day period, the Optionee
may thereafter immediately surrender such Claim without further notice to Daem.
Upon any such transfer or surrender, the Dalhousie Claim so transferred or
surrendered shall cease to form part of this Agreement.
8.0 TRANSFER BACK OF CLAIMS
Subject to paragraph 7.01 hereof, upon termination of this Agreement, the
Optionee shall deliver to Daem such registrable transfers as are necessary to
transfer to Daem the Dalhousie Claim then forming part of this Agreement.
The Claim transferred to Daem pursuant to paragraph 8.01 hereof shall be in good
standing for a period at least equal to the length of time any such Claim is in
good standing beyond the date of execution of this Agreement.
9.0 OBLIGATIONS OF THE OPTIONEE DURING THE OPTION PERIOD
The Optionee hereby covenants and agrees that for so long as the Option to
Purchase granted to it hereunder continues in full force and effect:
it will permit Daem or a duly authorized agent, upon reasonable prior notice to
the Optionee to have access to the Dalhousie Claim in order to examine ore
removed by or on behalf of the Optionee provided, however, that neither Daem nor
his agents shall interfere or obstruct the operation of the Optionee, its
servants and agents on the Dalhousie Claim, and further provided that Daem or
its agents shall enter upon the Dalhousie Claim at their own risk and that Daem
agrees to indemnify and save the Optionee harmless from all loss and damage of
any nature or kind whatsoever in any way referable to the entry of, or presence
on, or activities of either Daem or its agents while on the Dalhousie Claim,
including, without limiting the generality of the foregoing, bodily injuries or
death at any time resulting therefrom and damage to property sustained by any
person or persons;
it will maintain the Dalhousie Claim in good standing by the doing and filing of
applicable assessment work or the making of payments in lieu thereof, for the
payment of taxes and rentals and the performance of all other action which may
be necessary in that regard and in order to keep the Dalhousie Claim free and
clear of all liens and other charges arising from the Option's activities
thereon except those at the time contested in good faith by the Option; and
it will provide Daem with copies of all technical and other reports relating to
the Option's work on the Dalhousie Claim, at the Optionee's cost, forthwith upon
any such reports being prepared.
10.0 OBLIGATIONS OF DAEM
10.01 DAEM hereby covenants and agrees that:
No use will be made of the name of the Optionee or any company associated with
the Optionee in any document or release made to or available to the public
without the prior written approval of the Optionee;
Any information acquired by Daem relating to the Dalhousie Claim shall be
confidential and shall not be released or communicated to any person, firm or
corporation without the prior written approval of the Optionee.
For so long as the Option to Purchase is in full force and effect hereunder,
Daem will not deal, or attempt to deal, with Daem's right, title and interest in
and to the Dalhousie Claim in any way that would or might affect the right of
the Optionee hereunder to purchase a 100% undivided right, title and interest in
and to the Dalhousie Claim, free and clear of any claims, liens, charges or
encumbrances, save as specifically provided for in this Agreement;
It will assist the Optionee in acquiring and/or staking any land adjoining the
Dalhousie Claim or any portion thereof that may contain strike extensions of
mineralized zones.
11.0 RIGHT OF ENTRY
11.01 During the term of this Agreement, the Optionee and its servants,
agents and independent contractors shall have the sole and exclusive right in
respect of the Dalhousie Claim to:
enter thereon;
have exclusive and quiet possession thereof;
do such prospecting, exploration, development and/or other mining work thereon
and thereunder as the Optionee in its sole discretion may determine advisable;
bring upon and erect upon the Dalhousie Claim buildings, plant machinery and
equipment as the Optionee may deem advisable;
remove therefrom and dispose of reasonable quantity of ores, minerals and metals
for the purpose of obtaining assays or making other tests.
12.0 RIGHT TO REMOVE ASSETS
12.01 At any time and from time to time while the Option to Purchase
hereunder is in full force and effect, and for a period of 180 days after the
termination of this Agreement, the Optionee may enter upon and remove from the
Dalhousie Claim any and all buildings, plant, machinery, tools appliances and/or
equipment brought or erected upon the Dalhousie Claim by the Optionee. Any such
building, plant machinery, tools appliances and/or equipment not so removed
within the period of 180 days after the termination of this Agreement shall
become the property of Daem.
13.0 DISPOSITION OF INTEREST BY THE OPTIONEE
the Optionee may at any time sell, transfer or otherwise dispose of all or any
portion of its interest in and to the Dalhousie Claim in this Agreement provided
that any purchaser, grantee, to transferee of any such interest shall have first
entered into an agreement with Daem containing:
(a) a covenant by such transferee to perform all the obligations of the
Optionee to be performed hereunder in respect of the interest to be acquired by
it from the Optionee;
(b) a provision subjecting any further sale, transfer or other disposition
of such interest in the Dalhousie Claim and this Agreement or any portion hereof
to the restrictions contained in this paragraph 13.01.
No assigment by the Optionee of any interest less than its entire interest in
this Agreement and in the Dalhousie Claim shall, as between the Optionee and
Daem, discharge it from any of its obligations hereunder, but upon the transfer
by the Optionee of the entire interest at the time held by it in this Agreement
(whether to one or more transferees and whether in one or in a number of
successive transfers), the Optionee shall be deemed to be discharged from all
obligations hereunder save and except for the obligation to issue to Daem
300,000 post split fully paid and non-assessable shares in its capital stock
upon the Dalhousie Claim being put into Commmercial Production.
If Daem should receive a bona fide offer from an independent third party ( the
"proposed purchaser") dealing at arm's length with Daem to purchase all or
substantially all of its interest in the Dalhousie Claim (Specifically the 4%
(four percent) Net Smelter Royalty payment on all ore produced from the
Dalhousie Claim refered to in paragraph 4.02(e)(2) of this agreement), which
offer Daem desires to accept, or if Daem intends to sell all or substantially
all of his interest in the Dalhousie Claim, Daem shall first offer (the offer)
such interest in writing to the Optionee upon terms no less favorable than those
offered by the proposed purchaser or intended to be offered Daem, as the case
may be. The Offer shall specify the price and terms and conditions of such
sale, the name of the Proposed Purchaser ( which term shall, in the case of an
intended offer by Daem, mean the person or persons to whom Daem intends to
offers its interest) and, if the offer received by Daem from the Proposed
Purchaser provides for any consideration payable to Daem otherwise than in cash,
the Offer shall include Daem's good faith estimate of the cash equivalent of the
non-cash consideration. If within a period of 60 days of the receipt of the
offer the Optionee notifies Daem in writing that it will accept the same, Daem
shall be bound to sell such interest to the Optionee (subject as hereafter
provided with respect to price) on the terms and conditions of the Offer. If
the Offer so accepted by the Optionee contains Daem's good faith estimate of the
cash equivalent consideration as aforesaid, and if the Optionee disagrees with
Daem's best estimate, the Optionee shall so notify Daem at the time of
acceptance and the Optionee shall, in such notice, specify what it considers, in
good faith, the fair cash equivalent to be and the resulting total purchase
price. If the Optionee so notifies Daem, the acceptance by the Optionee shall
be effective and binding upon Daem and the Optionee and the cash equivalent of
any such non-cash consideration shall be determined by binding arbitration under
the Arbitration Act of British Columbia and shall be payable by the Optionee,
subject to prepayment as hereafter provided, within 60 days following its
determination by arbitration. The Optionee shall in such case pay to Daem,
against receipt of an absolute transfer of clear and unencumbered title to the
interest of Daem being sold, the total purchase price which is specified in its
notice to Daem and such amount shall be credited to the amount determined
following arbitration of the cash equivalent of any non-cash consideration. If
the Optionee fails to notify Daem before the expiration period of the time
limited therefor that it will purchase the interest offered, Daem may sell and
transfer such interest to the Proposed Purchaser at the price and on the terms
and conditions specified in the Offer for a period of 60 days, provided that the
terms of this paragraph shall again apply to such interest if the sale to the
Proposed Purchaser is not completed within the said 60 days. Any sale hereunder
shall be conditional upon the Proposed Purchaser delivering a written
undertaking to the Optionee, in form and substance satisfactory to its counsel,
to be bound by the terms and conditions of this Agreement.
FORCE MAJEURE
If the Optionee is at any time during the term of this Agreement prevented or
delayed in complying with any provisions of this Agreement by reason of strikes,
labour shortages, power shortages, fuel shortages, fires wars acts of God,
governmental regulations restricting normal operations, shipping delays or any
other reason or reasons (other than lack of funds) beyond the control of the
Optionee, the time limited for the performance by the Optionee of its
obligations hereunder shall be extended by a period of time equal in length to
the period of each such prevention or delay, provided however that nothing
herein shall discharge the Optionee from its obligations under paragraph 9.01.
The Optionee shall give prompt notice to Daem of each event of force majeure
under paragraph 14.01 and upon cessation of such event shall furnish Daem with
notice to that effect together with particulars of the number of days by which
the obligations of the Optionee hereunder have been extended by virtue of such
event of force majeure and all preceding events of force majeure.
After the commencement of the operation of the Dalhousie Claim as a mine, the
Optionee shall work, mine and operate the Dalhousie Claim during such time or
times as the Optionee in its sole judgement considers such operations to be
profitable. The Optionee may suspend or curtail operations during periods when
the products derived from the Dalhousie Claim cannot be profitably sold at
prevailing prices or if an unreasonable inventory thereof, in the Optionee's
sole judgement, has accumulated or would otherwise accumulate
CONFIDENTAL INFORMATION
No information furnished by the Optionee to Daem hereunder in respect of the
activities carried out on the Dalhousie Claim by the Optionee, or related to the
sale of product derived from the Dalhousie Claim, shall be published by Daem
without the prior written consent of the Optionee, but 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
pursuant to applicable securities or corporation laws.
16.0 NOTICE AND PAYMENT
16.01 Each notice, demand or the communication required or permitted to be
given under this Agreement shall be in writing and shall be sent by prepaid
registered mail deposited in a Post Office in Canada addressed the party
entitled to received same, or delivered to such party, at the address for such
party specified on the first page thereof. The date of receipt of such notice,
demand or other communication shall be the date of delivery thereof if
delivered, or, if given by registered mail as aforsaid, shall be deemed
conclusively to be the third day after the same shall have been so mailed except
in the case of interruption of the third day after the same shall have been so
mailed except in the case of interruption of postal services for any reason
whatsoever, in which case the date of receipt shall be the date upon which
notice, demand or other communication is actually received by the addressee.
16.02 Any party may at any time and from time to time notify any other party
in writing of a change of address and the new address to which notice shall be
given to thereafter until further change.
16.03 Any payment that Optionee may decide to make or cause to be made to
Daem hereunder shall be deemed to have been well and truly made if a cheque
payable to Daem in the appropriate amount has been delivered to the addressee
hereof in accordance with the provisions of paragraph 16.01 hereof, the
provisions of which shall apply, mutatis mutandis, as if such cheque was a
notice given hereunder.
17.0 FURTHER ASSURANCE
17.01 Each of the parties hereto agrees to do and/or execute all such further
and other acts, deeds, things, devices, documents and assurances as may be
required in order to carry out the true intent and meaning of the Agreement.
18.0 ENTIRE AGREEMENT
18.01 The parties hereto agree that the terms and conditions of this Agreement
shall supersede and replace any other agreements or arrangements, whether oral
or written, heretofore existing between the parties in respect of the subject
matter of this Agreement.
19.0 REGULATORY APPROVAL
19.01 This Agreement is subject to the approval of the securities regulatory
authorities having or which will have jurisdiction over the affairs of the
Optionee. No shares in the Optionee's capital stock will be issued pursuant to
the terms of this Agreement without the Optionee first having received all
necessary regulatory approvals in connection herewith.
20.0 GOVERNING LAW
20.01 This Agreement shall be governed by and construed in accordance with the
laws of the Province of British Columbia.
21.0 ENUREMENT
21.01 This Agreement shall enure to the benefit of and be binding upon the
parties hereto and each of their heirs, executors, administrators, successors
and assigns, as the case may be.
WHEREOF IN WITNESS this Agreement has been executed as of the day and year first
above written
/s/ Xxxxxxxxx Xxxxxx /s/ Xxxx Xxxxx Xxxx
WITNESS XXXX XXXXX XXXX
THE COMMON SEAL of
WIZBANG TECHNOLGIES INC.
was C/S
Hereunto affixed in the
Presence of:
/s/ Xxxx Xxxxxxxxxxxxx
Authorized Signatory
