Exhibit 99.1
COUGAR MINERALS CORPORATION
Suite 410, 890 West Pender Street
Vancouver, B.C. V6C 1J9
Telephone: (604) 685-6989
Facsimile: (604) 685-6961
OPTION AND AGREEMENT OF PURCHASE AND SALE
April 6, 2009
Outback Capital Inc.
Suite 208 - 828 Harbourside Drive
North Vancouver, BC, V7P 3R9
Facsimile: (604) 904 9431
Attention: Mr. Doug Ford
Re: Option and Agreement of Purchase and Sale (the "Agreement") Between Cougar
Minerals Corporation (the Purchaser") and Outback Capital Inc. (the
"Vendor")
This Agreement will confirm our understanding that the Vendor is the sole legal
and beneficial owner of a one hundred (100%) percent right, title and interest
in and to the Claims (as defined below) and the Vendor has now agreed to grant
to the Purchaser the irrevocable right and exclusive option and to purchase a
one hundred percent (100%) right, title and interest in and to the Claims,
subject to a two percent (2%) net smelter returns royalty reserved by a third
party (the "NSR"), on the terms and conditions hereinafter set forth.
1. INTERPRETATION
(a) In this Agreement and in the recitals and Schedules hereto, unless the
context otherwise requires, the following expressions will have the following
meanings:
(i) "Affiliate" has the meaning specified in National Instrument 45-106
as of the date hereof;
(ii) "Claims" means those certain mineral claims more particularly set
forth and described in Schedule "A" attached hereto, together with
all renewals or extensions thereof and all surface, water and
ancillary or appurtenant rights attached or accruing thereto, and
any leases or other forms of substitute or successor mineral title
or interest granted, obtained or issued in connection with or in
place of any such licenses (including, without limitation, any
licenses staked and recorded to cover internal gaps or factions in
respect of such ground);
(iii) "Closing Date" means the date on which the sale and purchase of the
Claims is completed as determined pursuant to Section 3;
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(iv) "Common Shares" means common voting shares in the capital stock of
the Purchaser; and
(v) "Exchange" means the Canadian National Stock Exchange (or "CNSX").
2. REPRESENTATIONS AND WARRANTIES
(a) Each of the Purchaser and the Vendor represents and warrants to the other
that:
(i) it is a body corporate duly formed, organized and validly subsisting
under the laws of its incorporating jurisdiction;
(ii) it has full power and authority to carry on its business and to
enter into this Agreement and any agreement or instrument referred
to or contemplated by this Agreement;
(iii) the execution and delivery of this Agreement and any agreements
contemplated hereby will not violate or result in the breach of the
laws of any jurisdiction applicable or pertaining thereto or of its
constating documents; and
(iv) it is resident in Canada within the meaning of the INCOME TAX ACT
(Canada).
(b) The Vendor represents and warrants to, and covenants with, the Purchaser
that:
(i) it is duly qualified to acquire, explore and develop mineral claims
in Manitoba;
(ii) the Claims have been duly and validly staked and recorded pursuant
to the laws of Manitoba, are accurately described in Schedule "A",
are and will be in good standing until their respective expiry dates
as set out in Schedule "A", and are free and clear of all liens,
charges, and encumbrances of any nature, except for the NSR;
(iii) the Vendor has the exclusive right to enter into this Agreement and
to dispose of all interest in the Claims to the Purchaser, subject
to the NSR, in accordance with the terms of this Agreement;
(iv) the Vendor is the sole legal, beneficial and recorded owner of the
Claims, subject to the NSR;
(v) there are no outstanding agreements or options to acquire or
purchase the Claims or any portion thereof, and no person, firm or
corporation has any proprietary or possessor's interest in the
Claims, and no person is entitled to any rent or royalty on the
Claims or other payment in the nature of rent or royalty on any
mineral products derived from the Claims, other than the NSR;
(vi) the Purchaser may enter in, under or upon the Claims for all
purposes of this Agreement without making any payment to, and
without accounting to or obtaining the permission of, any other
person other than any payment required to be made under this
Agreement;
(vii) there are no pending or threatened adverse claims, challenges
actions, suits, disputes or proceedings regarding the Claims nor, to
the best of its knowledge, is there any basis therefor;
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(viii) to the best of its knowledge, conditions on and relating to the
Claims and operations conducted thereon are in compliance with all
applicable laws, regulations or orders relating to environmental
matters including, without limitation, waste disposal and storage;
(ix) there are no outstanding orders or directions relating to
environmental matters requiring any work, repairs, construction or
capital expenditures with respect to the Claims and the conduct of
the operations related thereto, nor has it received any notice of
the same, and it is not aware of any basis on which any such orders
or direction could be made; and
(x) it is not aware of any material fact or circumstance which has not
been disclosed to the Purchaser which should be disclosed in order
to prevent the representations and warranties in this section from
being misleading or which may be material in the Purchaser's
decision to enter into this Agreement and acquire an interest in the
Claims.
(c) The Purchaser represents and warrants to, and covenants with, the Vendor
that:
(i) it is duly incorporated and in good standing under the Federal laws
of Canada with respect to the filing of its annual reports;
(ii) its Common Shares are listed for trading on the Exchange;
(iii) it is in good standing with respect to its filings with the
Exchange, and with respect to its continuous reporting filing
requirements with applicable Canadian securities regulators; and
(iv) its Common Shares when issued to the Vendor hereunder, will be
issued as fully paid and non-assessable common shares, not subject
to any trading or escrow restrictions, other than a hold period of
four (4) months from the date of issuance of the Common Shares, as
required by Canadian securities regulations, and such hold period
must be noted by a legend on the certificates representing the
Common Shares.
(d) The representations and warranties hereinbefore set out:
(i) are true as at the date hereof and will be true as at the Closing
Date, are conditions on which the parties have relied in entering
into this Agreement, and will survive the acquisition of any
interest in the Claims by the Purchaser, and each party will
indemnify and save the other harmless from all loss, damage, costs,
actions and suits arising out of or in connection with any breach of
any representation, warranty, covenant, agreement or condition made
by such party and contained in this Agreement; and
(ii) will continue for a period of three (3) years after the Closing
Date, and neither party will be entitled to assert any claim or
action for a breach of a representation or warranty hereinbefore set
out, unless it is commenced within such time period.
3. OPTION TO PURCHASE
(a) Upon and subject to the terms and conditions of this Agreement, the Vendor
hereby irrevocably grants to the Purchaser the exclusive option to purchase an
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undivided One Hundred Percent (100%) right, title and interest in and to the
Claims, free and clear of all liens, charges, royalties, encumbrances and claims
whatsoever, except for the NSR. The purchase price for the Claims shall be the
sum of $205,000, which shall include the Deposit described below (the "Purchase
Price"). The Purchaser shall have until the first anniversary of the date of
this Agreement to elect whether to exercise the option and complete the purchase
of the Claims. The date of completion of the purchase and sale of the Claims
(the "Closing Date") shall be such date as may be established by the Purchaser
but shall in no event be later than the first anniversary of the date of this
Agreement.
(b) In order to maintain its option in good standing, the Purchaser shall be
required to pay to the Vendor the sum of $10,000 and issue and deliver 500,000
Common Shares (at a deemed price of $0.10 per share) as a non-refundable deposit
(collectively, the "Deposit") upon the execution and delivery of this Agreement.
(c) In the event that the Purchaser elects to complete the purchase of the
Claims hereunder, the Purchaser shall notify the Vendor of its election in
writing (the date of such notice being deemed the "Closing Date") and shall pay
to the Vendor the balance of the Purchase Price, payable in either cash or
Common Shares at the election of the Vendor by notice in writing to the
Purchaser at least ten (10) days prior to the payment date (and if no such
election is made, then in cash), as follows:
Payment Date Cash Payments
------------ -------------
On or before April 30, 2010 $ 25,000 (additional)
On or before April 30, 2011 $ 50,000 (additional)
On or before April 30, 2012 $ 70,000 (additional)
TOTAL: $145,000
In the event that the Vendor elects to be paid any instalment set out
immediately above in Common Shares, then the Common Shares will be issued at a
deemed price of $0.10 per share.
(d) On the Closing Date, the Vendor will deliver to the Purchaser:
(i) evidence that the Claims have been transferred to the Purchaser,
pursuant to the laws of Manitoba; and
(ii) all non-public data and other information in the possession or
control of the Vendor with respect to the Claims.
(e) The Purchaser's payment of the balance of the Purchase Price ($145,000) as
set out under Section 3(c) above, shall be secured by a promissory note in the
form attached as Schedule "B" (the "Promissory Note"). The Promissory Note shall
be an unsecured, non-interest bearing, limited recourse promissory note of the
Purchaser in favour of the Vendor in the amount of the balance of the Purchase
Price ($145,000), pursuant to which the Purchaser will pay to the Vendor the
Purchase Price in staged payments as described in Section 3(c). For greater
certainty, in the event the Purchaser is in default of its obligations under
Section 3(c), then the Vendor agrees that the only recourse the Vendor has
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against the Purchaser or under the Promissory Note is the return of the Claims
to the Vendor and any payments already made by the Purchaser pursuant to Section
3(c) shall be forfeited.
4. MAINTAIN THE CLAIMS
(a) Until the earlier of the date that the Promissory Note has been paid in full
or the date upon which the Claims are fully returned to the Vendor pursuant to
Section 3(e) as a consequence of the Purchaser's default in making any payment
under the Promissory Note, the Purchaser shall be responsible for making all
payments required to maintain the Claims in good standing including, but not
limited to, all rentals, levies, duties, royalties, assessments, fees, taxes or
other governmental charges levied with respect to the Claims.
(b) In the event that the Purchaser does not elect to purchase the Claims or the
Purchaser defaults on the Promissory Note, and possession of the Claims is
therefore returned to the Vendor, then the Purchaser will ensure that adequate
work is filed or assessment fees paid to leave the Claims in good standing for
at least another twelve (12) months from the date the Claims are returned..
5. OPERATOR
(a) The Purchaser shall have the right to appoint an operator on and in respect
of the Claims and may appoint itself as operator.
6. AREA OF MUTUAL INTEREST AND RIGHT OF FIRST OFFER
(a) For a period of five (5) years following the Closing Date, the Purchaser
shall have a right of first offer (the "ROFO") in respect of any proposed
disposition by the Vendor, or its affiliates or associates, of any direct or
indirect interests in any mineral claims or properties located within an area of
mutual interest of two (2) kilometres of the exterior boundaries of the Claims
and which are presently held or which are acquired prior to the expiry of the
ROFO by the Vendor or its affiliates or associates (an "AMI Property Interest").
During the term of the ROFO, the Vendor shall notify the Purchaser of the terms
and conditions of any proposed disposition of an AMI Property.
(b) The ROFO may be exercised by the Purchaser within 15 days following the
receipt of the notice from the Vendor referred to in Section 6(a) by notifying
the Vendor that it will acquire the AMI Property Interest on the terms and
conditions set out in the Vendor's notice.
(c) If the Purchaser fails to give the notice contemplated by Section 6(b) to
the Vendor within the requisite 15 days, the Vendor will then be free to dispose
of the AMI Property Interest to an arm's length third party on the same terms
and conditions or on such other terms and conditions no less favourable to the
Vendor, provided that if the Vendor fails to complete such disposition to an
arm's length third party within 60 days of the expiry of the aforementioned 15
day period, the provisions of this Section 6 will again become applicable to any
proposed disposition by the Vendor of the subject AMI Property Interest.
(d) The ROFO will not terminate if, on receipt of any notice from the Vendor
under this Section 6, the Purchaser fails to exercise the ROFO.
(e) For further clarity, any additional mineral claims, mineral properties or
interests or rights therein staked or otherwise acquired by the Vendor outside
of the ROFO area described in Section 6(a) shall not be governed by this
Agreement and shall, in the event such properties are offered by the Vendor to
the Purchaser, be governed by a separate agreement containing such terms and
conditions as may be negotiated between the parties.
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7. INDEMNITY
(a) The Vendor agrees to indemnify and save harmless the Purchaser from and
against all suits, claims, demands, losses and expenses that directly arise from
the Vendor's activities on the Claims.
8. CONFIDENTIALITY OF INFORMATION
(a) Each party agrees that all information obtained hereunder will be the
exclusive property of the parties and not publicly disclosed or used other than
for the activities contemplated hereunder except as required by law or by the
rules and regulations of any regulatory authority or stock exchange having
jurisdiction or with the prior written consent of the other party, such consent
not to be unreasonably withheld.
9. DEFAULT
(a) In the event that the Purchaser is in default of any of its obligations
hereunder, the Purchaser will not lose any rights under this Agreement until the
Vendor has given to the Purchaser notice of such default and the Purchaser does
not take any reasonable steps to cure such default within thirty (30) days from
the Purchaser's receipt of such notice.
10. NOTICE
(a) Any notice, direction or other instrument required or permitted to be given
under this Agreement will be in writing and may be given by the delivery of the
same or by mailing the same by prepaid registered or certified mail or by
sending the same by telecopier or other similar form of communication, in each
case addressed to the addresses of the parties as set out on the first page of
this Agreement, and if sent by telecopier, as follows:
(i) if to the Purchaser at:
Fax No.: (604) 685-6961
Attention: Mr. Michael Elson, President
(ii) if to the Vendor at:
Fax No.: (604) 904 9431
Attention: Mr. Doug Ford
(b) Any notice, direction or other instrument aforesaid will, if delivered, be
deemed to have been given and received on the day it was delivered; if
telecopied, be deemed to have been given and received on the next business day
following transmission; and if mailed, be deemed to have been given and received
on the fifth day following the day of mailing, except in the event of disruption
of the postal services, in which event notice will be deemed to be given and
received only when actually received.
(c) Any party may at any time give to the other, notice in writing of any change
of address or telecopier number of the party giving such notice, and from and
after the giving of such notice, the address or telecopier number therein
specified will be deemed to be the address or telecopier number of such party
for the purposes of giving notice hereunder.
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11. GENERAL
(a) This Agreement constitutes the entire agreement between the parties and
replaces and supersedes all prior agreements, memoranda, correspondence,
communications, negotiations and representations, whether verbal or written,
express or implied, statutory or otherwise between the parties with respect to
the subject matter herein.
(b) No modification or amendment to this Agreement may be made unless agreed to
by the parties in writing.
(c) The Purchaser shall be free to assign its interest in this Agreement and the
Claims. The Vendor's interest in this Agreement and the Claims is not
assignable, in whole or in part, provided that the Vendor shall be entitled to
assign this Agreement, the Claims, and the Promissory Note to an Affiliate, upon
notice in writing to the Purchaser, and provided that the Affiliate agrees to be
bound by the terms of this Agreement.
(d) The parties agree that neither this Agreement nor payment of any monies
hereunder shall be construed as forming a partnership.
(e) Time is of the essence of this Agreement.
(f) The parties hereto agree that they and each of them will execute all
documents and do all acts and things within their respective powers to carry out
and implement the provisions or intent of this Agreement.
(g) The headings to the respective sections herein will not be deemed part of
this Agreement but will be regarded as having been used for convenience only.
(h) All references to monies hereunder will be in Canadian funds. All payments
to be made to any party hereunder will be made by cash, certified cheque or bank
draft mailed or delivered to such party at its address for notice purposes as
provided herein, or for the account of such party at such bank or banks in
Canada as such party may designate from time to time by written notice. Said
bank or banks will be deemed the agent of the designating party for the purpose
of receiving, collecting and receipting such payment.
(i) This Agreement will enure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assigns.
(j) In the event any provision of this Agreement will be deemed invalid,
unenforceable or void, in whole or in part, by any court of competent
jurisdiction, the remaining terms and provisions will remain in full force and
effect.
(k) This Agreement will be governed and interpreted in accordance with the laws
of British Columbia and the laws of Canada applicable therein. All actions
arising from this Agreement will be commenced and prosecuted in the courts of
British Columbia, sitting in the city of Vancouver, and the parties hereby
attorn to the jurisdiction thereof.
(l) This Agreement and the obligations of the Purchaser hereunder are in each
case subject to the acceptance for filing of this Agreement by the Exchange, if
required, on behalf of the Purchaser.
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(m) This Agreement may be executed in any number of counterparts with the same
effect as if all parties to this Agreement had signed the same document and all
counterparts will be construed together and will constitute one and the same
instrument and any facsimile signature shall be taken as an original.
If the foregoing terms and conditions, and the attached schedules which form a
part of this Agreement, accurately set out our mutual understandings, please
indicate your acceptance by signing this letter where indicated below and
returning to us the enclosed copy duly signed.
Yours very truly,
COUGAR MINERALS CORPORATION
Per:
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Michael Elson, President
Terms and conditions approved as of the date first above written.
OUTBACK CAPITAL INC.
Per:
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Name:
----------------------------------
Title:
---------------------------------
THIS IS SCHEDULE "A" TO THE AGREEMENT DATED APRIL 6, 2009,
Between Cougar Minerals Corporation
-- and --
Outback Capital Inc.
DESCRIPTION OF CLAIMS
Claim Number Claim Name Claim Recorded Expiry Date Area Grouping
- ------------ ---------- -------------- ----------- ---- --------
W53619 GLORIA 12/9/1999 2/7/2010 201 G11252
MB5272 PFG 3/19/2004 5/18/2009 235 G11252
MB5273 PFG 1 3/19/2004 5/18/2009 208 G11252
MB5274 PFG 2 3/19/2004 5/18/2009 184 G11252
MB5275 PFG 3 3/19/2004 5/18/2009 189 G11252
W53405 CHCALA 1 5/1/2001 6/30/2009 48 G11252
MB3260 DREW 7/15/2003 9/13/2009 49 G11252
MB2109 JONA 8/16/2002 10/15/2009 75 G11252
MB5276 PFG 4 8/20/2004 10/19/2009 113 G11252
MB5277 PFG 5 8/20/2004 10/19/2009 256 G11252
MB5278 PFG 6 8/20/2004 10/19/2009 167 G11252
MB5279 PFG 7 8/20/2004 10/19/2009 189 G11252
MB5280 PFG 8 8/20/2004 10/19/2009 194 G11252
MB5281 PFG 9 9/28/2004 11/27/2009 256 G11252
All located in the Rice Lake area of Manitoba.
THIS IS SCHEDULE "B" TO THE AGREEMENT DATED APRIL 6, 2009,
Between Cougar Minerals Corporation
-- and --
Outback Capital Inc.
PROMISSORY NOTE
$145,000 * , 2010
FOR VALUE RECEIVED, COUGAR MINERALS CORPORATION (the "Company"), with offices at
Suite 410, 890 West Pender Street, in the City of Vancouver, Province of British
Columbia, DOES HEREBY PROMISE TO PAY, without interest, to the order of OUTBACK
CAPITAL INC. (the "Holder"), at Suite 208 - 828 Harbourside Drive, North
Vancouver, BC, V7P 3R9:
(a) the sum of Twenty-Five Thousand Dollars ($25,000) on April 30, 2010;
(b) the sum of Fifty Thousand Dollars ($50,000) on April 30, 2011; and
(c) the sum of Seventy Thousand Dollars ($70,000) on April 30, 2012.
The Company is entitled to prepay all or any portion of this Note at any time,
without notice, bonus or penalty.
In the event the Company is in default of its payment obligations above, then
the Holder's recourse against the Company or its lawful assignee, as the case
may be, or under this Note is the return of the Claims (as defined in the Option
and Agreement of Purchase and Sale dated March 30, 2009 [the "Option Agreement"]
between the Company and the Holder) to the Holder and any payments already made
by the Company pursuant to this Note shall be forfeited.
The Company does hereby waive presentment for payment, protest, notice of
protest and notice of non-payment of this Note. No delay or admission by the
Holder in the exercise of any right or remedy shall operate as a waiver of such
right or remedy, and no single or partial exercise by the Holder of any right or
remedy shall preclude any other or further exercise of such right or remedy or
the exercise of any other right or remedy. THIS NOTE IS NON-NEGOTIABLE BY THE
HOLDER, EXCEPT TO AN AFFILIATE OF THE HOLDER, IN THE MANNER AS SET FORTH IN THE
OPTION AGREEMENT.
IN WITNESS WHEREOF the undersigned has signed, sealed and delivered this Note,
as of the * of *, 2010.
COUGAR MINERALS CORPORATION
Per:
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Michael Elson, President