POOLING AGREEMENT
THIS AGREEMENT is made and executed this 26 day of May, 1998
BETWEEN:
CAN-EX MINERALS CORPORATION., a body corporate duly incorporated
under the laws of the State of Nevada and having an office at 0000
Xxxxxxx Xxxx Xxxxx, Xxxxxxxx Xxxxxxx, XXX, 00000,
(the "Can-Ex")
AND:
XXXXX XXXXXXX, having a residence at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx, X0X 0X0
(the "Shareholder")
WHEREAS:
A. Can-Ex is desirous for the Shareholder to enter into this Pooling
Agreement ("Agreement") in contemplation of it obtaining a quote on the OTC
Bulletin Board under Rule 504 Regulation D;
and
B. The Shareholder is desirous to enter into this Agreement as a
condition for Can-Ex having issued him Shares under a Purchase Agreement dated
May 26, 1998.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
mutual covenants and agreements herein contained and the sum of One Dollar
($1.00) paid by the Can-Ex to the Shareholder (the receipt of which is hereby
acknowledged), the parties thereto agree as follows:
1. DEFINITIONS
1.01 In this Agreement, including the recitals herein, unless there is
something in the subject matter or context inconsistent therewith, the following
words and expressions shall have the following meanings:
(a) "Agreement" shall mean this Pooling Agreement;
(b) "Regulatory Body" representatives of NASD, OTC Bulletin Board,
Securities and Exchange Commission, British Columbia Securities Commission or
any other governing having jurisdiction over the affairs of Can-
Ex;
(c) "Shares" shall mean the six hundred and fifty thousand
(650,000) shares held in the capital stock of the Can-Ex by the Shareholder out
of a total number of shares of eight hundred thousand (800,000); and
(d) "Trustee" shall be the transfer agent appointed by Can-Ex;
being Nevada Agency and Trust Company located at Xxxxx 000 - 00 Xxxx Xxxxxxx
Xxxxxx, Xxxx, Xxxxxx, XXX.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS
2.Ol The Can-Ex represents and warrants to the Shareholder that:
(a) it is a company duly incorporated, organized and validly
subsisting under the laws of Nevada;
(b) it has the 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;
(c) neither the execution and delivery of this Agreement referred to
herein or contemplated hereby, nor the consummation of the transactions hereby
contemplated conflict with, result in the breach of or accelerate the
performance required by, any agreement to which it is a party; and
(d) the execution and delivery of this Agreement and the 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.
2.02 The Shareholder represents and warrants to the Can-Ex that:
(a) he is above the age of eighteen (18) year old;
(b) he is capable of managing his own affairs;
(c) he is the owner of eight hundred thousand (800,000) Shares in the
capital stock of Can-Ex of which one hundred and fifty thousand (150,000) shares
are not subject to any pooling agreements, and the balance are subject to the
terms and conditions of this Agreement;
(d) neither the execution and delivery of this Agreement referred to
herein or contemplated hereby, nor the consummation of the transactions hereby
contemplated conflict with, result in the breach of or accelerate the
performance required by, any agreement tQ which it is a party; and
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(e) the execution and delivery of this Agreement and the 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.
1.03 The representations, warranties and covenants hereinbefore set out
are conditions on which the parties have relied in entering into this Agreement
and shall survive any interest in this Agreement and any loss, damage, cause of
action and suits arising out of or in connection with any breach of any
representation warranty, covenant, agreement or condition made by them and
contained in this Agreement.
2. POOLING OF SHARES
2.01 Can-Ex requires the Shareholder to enter into this Agreement under
the following terms and conditions:
(a) Can-Ex and the Shareholder hereby severally agree each with the
other that they will respectively deliver or cause to be delivered to the
Trustee six hundred and fifty thousand (650,000) certificates of the Shares in
Can-Ex to be held by the Trustee and released, subject as hereinafter provided,
on the following basis:
i. One (1) year from the date of this Agreement, ten percent
(10%) of the Shares will be issued to the Shareholder and be deemed to be free
trading unless the Shares are restricted by the Regulatory Bodies having
jurisdiction over the affairs of Can~Ex;
ii. Each and every month, starting from the thirteenth (13) month
from the date of signing of this Agreement, five percent (5%) of the remaining
balance of the Shares, after the release often percent (10%) of the Shares noted
in 2.01(a) have been made, will be released to the Shareholder until such time
as all the Shares have been released by the Trustee; and
iii. The Shareholder will, if required, sign another pooling
agreement with the Trustee under the same terms and conditions as have been
indicated in 2.01(a) i to ii inclusive.
2.02 The Shareholder shall be entitled to a letter or receipt from the
Trustee stating the number of Shares represented by certificates held for him by
the Trustee subject to the terms of this Agreement.
2.03 Except without written consent of the Can-Ex, and if required by
any Regulatory Bodies, the Shareholder shall not sell, deal in, assign, transfer
in any manner whatsoever or agree to sell, deal in, assign or transfer in any
manner whatsoever any of the said Shares or beneficial ownership of or any
interest in them and, except with written consent of the Can-Ex, and if required
by any Regulatory Bodies, the Trustee shall not accept or acknowledge any
transfer, assignment, declaration of trust or any other document evidencing a
change in legal and beneficial ownership or of interest in the said Shares,
except as may be required by reason of the death or bankruptcy of the
Shareholder, subject to this Agreement for whatever person or persons, firm or
corporation may thus become legally entitled thereto.
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2.04 The Can-Ex and the Shareholder hereto acknowledge and agree that
any Regulatory Bodies shall have the right, at its sole discretion, to
accelerate the releases referred to herein and may from time to time notify the
Trustee of such acceleration. Such acceleration may be based on whatever
consideration Regulatory Bodies, in its sole discretion, consider advisable.
3. TERMINATION
3.01 It is hereby acknowledged by the Shareholder that Can-Ex is
preparing to seek a quotation on the OTC Bulletin Board under NASD whereby the
Shares of Can-Ex will be quoted. If such quotation of Shares does not occur
within fifteen (15) months from the date of this Agreement, then this Agreement
shall terminate and the Trustee shall release all Shares deposited with it to
the Shareholder.
4. FORCE MAJEURE
4.01 No party will be liable for its failure to perform any of its
obligations under this Agreement due to a cause beyond its reasonable control
including, but not limited to acts of God, fire, storm, flood, explosions,
strikes, lockouts or other industrial disturbances, act of the public enemy,
riots, laws, rules and regulations or orders of any duly constituted
governmental authority.
5. SAVE HARMLESS THE TRUSTEE
5.01 Can-Ex and the Shareholder agree that in consideration of the
Trustee agreeing to act as Trustee, Can-Ex and the Shareholder do hereby
covenant and agree from time to time and at all times hereinafter will and truly
to save, defend, and keep harmless and fully indemnify the Trustee, its
successors and assigns, from and against all lost, costs, charges, damages and
expenses which the Trustee, its successors and assigns, may at any time or times
hereafter bear, sustain, suffer or be put to for or by reason or on account of
its acting as Trustee pursuant to this Agreement.
5.02 It is further agreed by and between Can-Ex and the Shareholder
hereto and, without restricting the foregoing indemnify, that in case
proceedings should hereafter be taken in any Court respecting the Shares hereby
pooled, the Trustee shall not be obliged to defend any such action or submit its
rights to the Court until it shall have been indemnified by other good and
sufficient security in addition to the indemnify hereinbefore given against
costs of such proceedings.
6. AMENDMENT
6.01 This Agreement may only be changed with the express permission of
the Can-Ex and the Regulatory Bodies.
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7. NOTICE
7.01 Any notice, direction, cheque or other instructions required or
permitted to be given under this Agreement shall 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 telegram, telex, telecommunication or
other similar forms of communication including- facsimile, in each case
addressed to the intended recipient at the address of the respective party set
out on the front page hereof
7.02 Any notice, direction, cheque or other instrument aforesaid will,
if delivered, be deemed to have been given and received on the day it was
delivered, and if mailed, be deemed to have been given and received on the fifth
business day following the day of mailing, except in the event of a disruption
of the postal service in which event notice will be deemed to be received only
when actually received and, if sent by telegram, telex, fax machine,
telecommunication or other similar form of communication, be deemed to have been
given or received on the day it was so sent.
7.03 Any party may at any time give to the other notice in writing of
any changes or address of the party giving such notice and from and after the
giving of such notice the address or addresses therein specified will be deemed
to be the address of such party for the purposes of giving notice hereunder.
8. FURTHER ASSURANCES
8.01 Each of the parties hereto shall from time ~o time and at all
times do all such further acts and execute and deliver all further deeds and
documents as shall be reasonably required in order to fully perform and carry
out the terms of this Agreement. For greater certainty this section shall not be
construed as imposing any obligation on any party to provide guarantees.
9. ENTIRE AGREEMENT
9.01 This Agreement embodies the entire agreement and understanding
between Xxxxxxx and Can-Ex and supersedes all prior agreements and undertakings,
whether oral or written, relative to the subject matter hereof
10. ARBITRATION
10.01 If any question, differences or disputes shall arise between the
parties in respect of any matters arising under this Agreement or in relation to
the construction hereof the same shall be determined by the award of three
arbitrators to be named as follows:
(a) the party sharing one side of the dispute shall name an arbitrator
and give notice thereof to the pay sharing the other side of the dispute;
(b) the party sharing the other side of the dispute shall, within 14
days of receipt of the notice, name an arbitrator; and
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(c) the two arbitrators so named shall, within 15 days of the naming of
the latter of them, select a third arbitrator.
The decision of the majority of these arbitrators shall be made within
30 days after the selection of the latter of them. The expense of the
arbitration shall be borne equally by Xxxxxxx and Can Ex. If the parties on
either side of the dispute fail to name an arbitrator within the time limit or
proceed with the arbitration, the arbitrator named may decide the question. The
place of arbitration shall be Colorado Springs, Colorado, United States.
11. RULES AGAINST PERPETUITIES
11.01 If any right, power or interest of either Xxxxxxx or Can-Ex under
this Agreement would violate the Rule against perpetuities, then such right,
power and interest shall terminate at the expiration of 20 years after the death
of the last survivor of all the lineal descendants of his late Majesty, King
Xxxxxx V of England, living on the date of execution of this Agreement.
12. ENUREMENT
12.01 This Agreement shall enure to the benefit and be binding upon the
parties hereto and their respective successors and permitted assigns.
13. GOVERNING LAW
13.01 This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Nevada.
14. SEVERABILITY
14.01 If any one or more of the provisions contained herein shall be
invalid, illegal or unenforceable in any respect in any jurisdiction, the
validity, legality and enforceability of such provision shall not in any way be
affected or impaired thereby in any other jurisdiction and the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
15. NUMBER AND GENDER
15.01 Words used herein importing the singular number only shall include
the plural, and vice versa, and words importing the masculine gender shall
include the feminine and neuter genders, and vice versa, and words importing
persons shall include firms and corporations.
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16. HEADINGS
16.0.1 The division of this Agreement into articles and sections and the
insertion of headings are for convenience of reference only and shall not affect
the construction or interpretation of this Agreement.
17. TIME OF THE ESSENCE
17.01 Time shall be of the essence in the performance of this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day, month and year first above written~
THE COMMON SEAL OF CAN-EX )
MINERALS CORPORATION was )
hereunto affixed in the presence of: )
) C/S
)
/s/ Xxxxxxx Xxxxx Xxxx )
------------------------
(Authorized Signatory) )
)
)
/s/ )
------------------------
(Authorized Signatory) )
WITNESSED:
)
/s/ Xxxxxx Xxxxx )
(Signature) )
)
Xxxxxx Xxxxx ) /s/ Xxxxx Xxxxxxx
------------------------ ------------------------
(Print Name) ) Xxxxx Xxxxxxx
)
250-1075 W. Georgia )
------------------------
(Address) )
)
Xxxxxxxxx, XX X0X0X0 )
------------------------
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