(IN SHARES, QUOTAS, MEMBERSHIP, OR PARTNERSHIP INTEREST OR OTHER
COMPARABLE DESIGNATION) TO THE CONTRIBUTING PARTY TO REFLECT THE ADJUSTED
PROPORTIONATE HOLDINGS RESULTING FROM SUCH CONTRIBUTION(S) (AND
NON-CONTRIBUTION, AS APPLICABLE), (D) LOSS OF RIGHTS SO THAT AT SUCH TIME A
PARTY'S BENEFICIAL INTEREST IN AN EXPLORATION ENTITY FALLS BELOW 25% AS A RESULT
OF CLAUSE (C) OF THIS SECTION 3.3(B), SUCH PARTY SHALL HAVE NO FURTHER RIGHTS
WITH RESPECT TO THE MANAGEMENT OF SUCH EXPLORATION ENTITY OR THE OPTIONED ACTIVE
ASSET IT IS DEVELOPING EXCEPT THE RIGHT TO HAVE A DIRECTOR ON THE BOARD OF
EXPLORATION ENTITY UNTIL THE PARTY'S BENEFICIAL INTEREST FALLS BELOW 20%, AND
(E) PROVISIONS, ON SUCH TERMS AS THE PARTIES MAY MUTUALLY AGREE, SIMILAR TO
ARTICLE II, SECTION 3.2, SECTION 3.3, SECTION 5.1 AND SECTION 7.7 OF THE MSC
SHAREHOLDERS AGREEMENT.
APEX SHALL CAUSE ANY OF ITS SUBSIDIARIES WHICH HAVE
RIGHTS IN THE APPLICABLE OPTIONED ACTIVE ASSET TO ENTER INTO THE DEFINITIVE
EXPLORATION PROPERTY AGREEMENTS TO THE EXTENT REASONABLY REQUIRED FOR SUMITOMO
TO EFFECTIVELY ACQUIRE ITS INTEREST IN THE OPTIONED ACTIVE ASSET.
NOTWITHSTANDING THE FOREGOING, SUMITOMO MAY AT ANY TIME PRIOR TO THE EXECUTION
OF THE DEFINITIVE EXPLORATION PROPERTY AGREEMENTS ELECT, BY WRITTEN NOTICE TO
APEX, NOT TO ACQUIRE AN INTEREST IN ONE OR MORE OPTIONED ACTIVE ASSETS TO WHICH
THE DEFINITIVE EXPLORATION PROPERTY AGREEMENTS RELATE, IN WHICH EVENT (X) SUCH
OPTIONED ACTIVE ASSETS SHALL CEASE TO BE SUBJECT TO THIS AGREEMENT, AND
(Y) SUMITOMO SHALL REIMBURSE APEX FOR REASONABLE OUT-OF-POCKET EXPENSES INCURRED
BY APEX IN CONNECTION WITH THE NEGOTIATION OF THE DEFINITIVE EXPLORATION
PROPERTY AGREEMENT INCLUDING ATTORNEY'S AND OTHER CONSULTANT FEES.
SECTION 3.4
PAYMENT WITH RESPECT TO EACH OPTIONED ACTIVE ASSET.
(A)
IN CONSIDERATION FOR EACH OPTIONED ACTIVE ASSET, SUMITOMO SHALL,
IN EACH APPLICABLE DEFINITIVE EXPLORATION PROPERTY AGREEMENT, AGREE TO
CONTRIBUTE TO EACH EXPLORATION ENTITY OPERATING THE RESPECTIVE OPTIONED ACTIVE
ASSET THE DOLLAR AMOUNT, IN CASH, EQUAL TO 100% OF ALL COSTS INCURRED BY THE
EXPLORATION ENTITY SINCE ITS ESTABLISHMENT UNTIL SUCH TIME SUMITOMO'S
CONTRIBUTIONS TO SUCH ENTITY SHALL EQUAL AN AMOUNT WHICH, WHEN DIVIDED BY A
NUMBER EQUAL TO THE SUM OF (I) SUMITOMO'S SAID CONTRIBUTIONS PLUS (II) THE
OPTIONED ASSET HISTORICAL COST INCURRED UP TO THE EFFECTIVE DATE OF SUCH
DEFINITIVE EXPLORATION PROPERTY AGREEMENT, EQUALS THE SAME PERCENTAGE AS THE
INTEREST IN SUCH OPTIONED ACTIVE ASSET THAT SUMITOMO IS ACQUIRING (THE "ACTIVE
ASSET PAYMENT").
(B)
SUMITOMO AND APEX HEREBY ACKNOWLEDGE AND AGREE THAT IF SUMITOMO
(OR ITS SUBSIDIARY) TRANSFERS, SELLS, OR OTHERWISE DISPOSES OF ITS DIRECT OR
INDIRECT EQUITY INTERESTS IN AN EXPLORATION ENTITY PRIOR TO PAYMENT IN FULL OF
THE ACTIVE ASSET PAYMENT AS SET FORTH IN SECTION 3.4(A), THEN SUMITOMO (OR ITS
SUBSIDIARY) SHALL, WITHIN FIVE BUSINESS DAYS OF THE DATE ON WHICH SUMITOMO OR
ITS SUBSIDIARIES CEASES TO OWN SUCH EQUITY INTEREST, PAY APEX (OR ITS
SUBSIDIARY) AN AMOUNT, IN CASH, EQUAL TO THE OUTSTANDING UNPAID AMOUNT OF THE
ACTIVE ASSET PAYMENT WHICH PAYMENT SHALL SATISFY THE OBLIGATION UNDER SECTION
3.4(A).
NOTWITHSTANDING THE FOREGOING AND SUBJECT TO ANY APPLICABLE RIGHTS OF