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EXHIBIT 10.2
SETTLEMENT AGREEMENT FOR CERTAIN DEBENTURES
This Settlement Agreement For Certain Debentures (hereinafter, this
"Agreement") is made and entered into on this 10th day of December 2010, by
and among Calais Resources, Inc., a corporation organized under the laws of
British Columbia ("Calais"), Marlowe and Judy Harvey ("Mr. and Mrs. Harvey"),
and Argus Resources, Inc. ("Argus"). Mr. and Mrs. Harvey and Argus are
collectively referred to as the "Harvey Parties," Calais and the Harvey
Parties are collectively referred to as the "Parties."
RECITALS
A. Calais is a publicly-held company based in Littleton, Colorado,
with properties in Boulder County, Colorado and Nye County, Nevada, which has
obligations to file reports and disclosure information with the British
Columbia Securities Commission ("BCSC") and the United States Securities and
Exchange Commission ("SEC").
B. Mr. Harvey has been an officer and director of Calais in the past
and with the other Harvey Parties is a significant shareholder of Calais.
C. The Harvey Parties hold four convertible debentures issued by
Calais, and the Parties would like to settle three of the debentures pursuant
to this Agreement. The debenture in the amount of CDN$ 747,728 held by
Aardvark Agencies, Inc. and the debenture in the amount of CDN$ 1,103,214
held by Lynn Martin, are not covered by this Agreement.
NOW, THEREFORE, in consideration of the following covenants and promises
and for other valuable consideration, this Agreement is entered into by the
Parties.
AGREEMENT
1. Convertible Debentures. There are three convertible debentures
between Calais and the Harvey Parties which are intended to be settled as
provided in this Agreement. These include:
Amount Conversion
Name of Holder (CDN$) Due Date Price (CDN$)
Judy Harvey $2,046,741 5/31/2011 $1.23
Argus Resources, Inc. $ 215,422 5/31/2011 $1.23
Judy Harvey $ 948,000 5/31/2011 $1.23
2. Harvey Debentures. The Harvey Parties hold two debentures which
total CDN$ 2,994,741. The Harvey Parties agree to accept as full payment for
these two debentures the sum of CDN$ 149,737 in cash to be paid on the
closing of this Agreement, together with 8,890,638 restricted shares of
Calais common stock to be delivered on the closing of this Agreement. Since
Calais is unable to deliver a certificate for the 8,890,638 shares because of
the British Columbia Cease Trade Order, the certificate will be issued and
held by Calais' transfer agent pursuant to an escrow agreement satisfactory
to the Parties.
3. Argus Debenture. The Harvey Parties agree to accept as full
payment for the Argus Debenture, 659,730 restricted shares of Calais common
stock to be delivered on the closing of this Agreement. Since Calais is
unable to deliver a certificate for the 659,730 shares because of the British
Columbia Cease Trade Order, the certificate will be issued and held by
Calais' transfer agent pursuant to an escrow agreement satisfactory to the
Parties. Argus and Calais further agree that upon the issuance of the
659,730 shares to Argus and the execution of this Agreement by Argus and
Calais, both Argus and Calais shall and hereby do release each other of and
from any and all obligations or liability which each now has, has had, or may
have, to the other, and from all claims or actions of every kind and nature
whatsoever, except for the obligations to comply with the provisions of this
Agreement.
4. Nature of Restricted Stock. The shares of Calais common stock to
be issued by Calais pursuant to the provisions of paragraphs 2 and 3 above
will be restricted shares as that term is defined in Rule 144 and the holding
period for the shares will commence on the date of the Closing of this
Agreement. The holding period requirement before shares can be sold will
depend on whether or not Calais is current in its reporting requirements with
the SEC. If Calais is current the holding period for non-affiliates is 6
months and if Calais is not current, the holding period for non-affiliates is
12 months.
5. Representations and Warranties.
(a) Calais. Calais represents and warrants to each of the Harvey
Parties (understanding that each of the Harvey 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 such officer to deliver this
Agreement to each of the Harvey Parties and intends to be bound by 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) The Harvey Parties. Each of the Harvey Parties 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 the Harvey Parties that is a corporation, is a
corporation in good standing under the laws of its jurisdiction of
organization and is qualified to conduct business in the states or provinces
where the conduct of its business so requires.
(ii) The persons executing this Agreement on behalf of each
of the Harvey Parties that is a corporation are its duly constituted officers
as named on the signature page hereof. Each of the Harvey Parties that is a
corporation 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 the Harvey Parties, 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 not misleading in light of the circumstances in which it
was made.
6. 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.
7. Closing. The closing of the transactions contemplated in this
Agreement (the "Closing") shall take place automatically (i) once each of the
Parties has received copies of the signatures to this Agreement of all other
Parties, (ii) once Calais has wired CDN$149,737 to Judy Harvey, (iii) once
Calais has issued 8,890,638 shares of its common stock to Judy Harvey and
placed the certificate into escrow for the benefit of Judy Harvey, and (iv)
once Calais has issued 659,730 shares of its common stock to Argus and placed
the certificate into escrow for the benefit of Argus.
8. 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.
9. Governing Law; Jurisdiction. This Agreement shall be governed by
the laws of Colorado except to the extent that the laws of British Columbia
govern the validity of the outstanding shares of Calais common stock and
debentures. Each of the Parties consents to the jurisdiction of the federal
courts whose district 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 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 and personam service upon such Party in any action or proceeding with
respect to any matter as to which such Party has submitted to jurisdiction
hereunder.
10. 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.
11. 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.
12. Confidentiality. The Parties agree that this Agreement shall
remain confidential between and among the Parties except as required to be
disclosed under applicable law, governmental regulation or pursuant to
judicial order or decree.
13. 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.
14. Authority. 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 and other authority,
and that this Agreement is intended to be, and is, binding upon such entity
in accordance with its terms.
15. Good Faith. Each of the Parties to this Agreement will work in
good faith to accomplish the purposes of this Agreement.
16. Notices. All written notices required by this Agreement or any
document delivered pursuant hereto or as contemplated herein, must be
delivered to the following addresses (or to such other addresses as may be
supplied by a Party) by a means evidenced by a delivery receipt and will be
effective upon receipt.
If to Calais:
8839 West Crestline Dr.
Littleton, CO 80123
Attn: Dave Young, President
If to Mr. Harvey or any of the Harvey Parties:
47015 Extrom Road
Chiliwack, B.C. V2R-4V1
Canada
17. 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 above mentioned above.
CALAIS RESOURCES, INC.
By /s/ David Young
David Young, President
STATE OF COLORADO )
) ss.
COUNTY OF ARAPAHOE )
Subscribed, sworn to, and acknowledged before me by David Young, as
President for and on behalf of Calais Resources, Inc., on this 15th day of
December 2010.
Witness my hand and official seal.
My commission expires: 6/26/2014
[ S E A L ] /s/ Susan L. Beeck
Notary Public
/s/ Marlowe Harvey /s/ Judy Harvey
Marlowe Harvey, Individually Judy Harvey, Individually
PROVINCE OF B.C. )
) ss.
CITY OF CHILIWACK )
Subscribed, sworn to, and acknowledged before me by Marlowe and Judy
Harvey, individually, on this 10th day of December 2010.
Witness my hand and official seal.
My commission expires: December 31, 2010
[ S E A L ] /s/ David J. Siebenga
Notary Public
ARGUS RESOURCES, INC.
By /s/ Marlowe Harvey
Marlowe Harvey, President and Secretary
PROVINCE OF B.C. )
) ss.
CITY OF CHILIWACK )
Subscribed, sworn to, and acknowledged before me by Marlowe Harvey, as
President and Secretary for and on behalf of Argus Resources, Inc., on this
10th day of December 2010.
Witness my hand and official seal.
My commission expires: December 31, 2010
[ S E A L ] /s/ David J. Siebenga
Notary Publi
