EXHIBIT 10.1
AGREEMENT
B E T W E E N:
CYBERPORT NIAGARA INC.
a private Ontario Corporation
(hereinafter called "Cyberport")
- and -
TELLURIAN, INC.
a public Delaware (USA) Corporation
(hereinafter called "Tellurian")
- and -
XXXXXX BROS. LIMITED
PHOENIX WOOD PRODUCTS CORPORATION (formerly
known as Trigin Management Corporation)
STAR TILE CENTRE LIMITED
ECCO ELECTRIC LIMITED
DBN DRYWALL & ACOUSTICS LIMITED
EXPOPLEX INCORPORATED
(hereinafter collectively called
the "Claimants")
WHEREAS the Claimants are presently owed $1,865,559.00 (plus any additional
amount that may be shown to be owed on closing for Goods and Services Tax) for
the supply of services and materials to the Cyberport facility at 0000 Xxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxx, legally described as set out in Schedule "A"
attached hereto, said facility being owned by 1174757 Ontario Inc. and leased to
Cyberport Niagara Inc.;
AND WHEREAS a number of the Claimants have registered Claims for Lien against
the title to said premises pursuant to the Construction Lien Act;
AND WHEREAS the Claimants, Cyberport and 1174757 have agreed to settle all
claims and counterclaims in regards to the supply of services and materials to
the said premises;
NOW WITNESS THAT IN CONSIDERATION of the mutual covenants and agreements herein
and subject to the terms and conditions in this agreement, the parties hereto
covenant and agree as follows:
1. The Claimants hereby agree to assign, concurrently with the closing of
this settlement agreement, to 1174757, $1,000,000.00 worth of the total
amount of $1,865,559.00 presently owed to them for the supply of
services and materials to the Cyberport facility.
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2. The Claimants hereby further agree to provide the law firm of Xxxxxxxxx
and Associates a properly executed Release/Discharge of each of their
respective Claims for Lien, to be held by such law firm in trust
pending the completion of this settlement agreement.
3. The Claimants hereby further agree to provide to the law firm of
Xxxxxxxxx and Associates a properly executed Consent to an Order for
dismissal of each of their respective Court Actions commenced regarding
this matter, without costs, discharging their respective Claims for
Lien and vacating their respective Certificates of Action, to be held
by such law firm in trust pending the completion of this settlement
agreement.
4. Xxxxxx Bros. Limited hereby acknowledges that Unistrut Canada
Limited and PRW Excavating Contractors Ltd. are subcontractors
of Xxxxxx Bros. Limited and each have registered a Claim for
Lien and Certificate of Action against the premises and each
have refused to join in this agreement. Accordingly, Xxxxxx
Bros. Limited hereby agrees to bring, at its cost, immediately
upon the closing of this settlement, an application pursuant to
the Construction Lien Act to obtain a Court Order vacating from
the title to the premises the said Claims for Lien and
Certificates of Action of these two subcontractors. Xxxxxx
Bros. Limited shall also provide Cyberport, 1174757 and the
mortgagees of the premises with an indemnity with respect to the
claim/action commenced by the two said subcontractors.
5. The Claimants hereby further agree to provide to the law firm of
Xxxxxxxxx and Associates a property executed Release of
Cyberport, Tellurian and 1174757 Ontario Inc. of all claims
against their companies by the Claimants in relation to the
supply of services and materials to the Cyberport facility, save
and except any claim resulting from the terms of this Agreement
and any agreement entered into by the Claimants and 1174757
Ontario Inc. in regards to this matter said Release to be held
by said law firm in trust pending the completion of this
settlement agreement.
6. The Claimants hereby further agree to subscribe for $865,559.00
worth of Series "B" Special Shares in Cyberport at $1.00 per
share and shall assign $865,559.00 worth of debt owed to them by
Cyberport, being the balance of the monies owed to them for the
supply of services and materials to the Cyberport facility, and
Cyberport shall accept such assignment as payment in full for
the shares so subscribed for. The parties acknowledge that the
subscription amount may increase due to any Goods and Services
Tax that may be found owing on closing, such adjustment to be at
the same rate of 1 share for each $1.00 owed. All references
hereinafter to the 865,559 said shares shall be amended
accordingly, in the event that this subscription amount
increases as provided for herein.
7. The Series "B" Special Shares to be issued shall have the following
rights, privileges, restrictions and conditions:
a) they shall be limited to 865,559 in number,
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b) they shall have a subscription price of $1.00 per share,
c) they shall have a preferred 12% annual cumulative cash
dividend, payable quarterly, with the first payment due
June 30, 1998,
d) in the event of liquidation, dissolution or winding up of
Cyberport, the holder of each share shall be entitled to
receive the subscription price for each share held together
with all unpaid dividends declared thereon, said payment to be
in priority to all other issued shares in Cyberport,
e) Cyberport shall have the right to redeem any or all of said
shares at any time prior to October 10, 1998 at a redemption
price equal to 110% of the subscription price. The payment of
such redemption price shall include payment of any accrued and
unpaid dividend payment that may be outstanding at the time of
such redemption,
f) they shall be non-voting shares.
8. In the event that Cyberport has not redeemed all of said Series
"B" Special Share on or prior to October 10, 1998, then the
Claimants shall have the right until December 31, 1998 after
which time if not exercised such right shall expire, and
Tellurian shall honour such right, to have their Cyberport
Series "B" Special Shares exchanged for common stock in
Tellurian at the conversion rate of 2.28 Series "B" Special
Shares in Cyberport for each common stock in Tellurian. Any
such exchange by the Claimants shall include the rights to any
accrued and unpaid dividends owing on the Cyberport stock at the
time of said exchange.
9. All parties recognize that the Tellurian common stock described in
paragraph 5 herein is "restricted" stock, meaning that the stock may
not be sold or otherwise transferred within one year of issuance and
then only in accordance with securities laws unless the securities have
been registered for resale pursuant to the Securities Act of 1933
(USA), as amended or an exemption from registration is available to
permit such transfer.
10. Cyberport hereby represents and warrants that:
a) at present time that the issued capital of Cyberport
consists of 1,000 common shares only,
b) that at the time that the 865,559 Series "B" Special Shares as
described above are issued in accordance with this agreement
the said 1,000 common shares will be the only issued shares in
the capital of Cyberport,
c) that until such time as all of the said Series "B" Special
Shares are either redeemed by Cyberport or are exchanged by
the Claimants for stock in Tellurian, Cyberport will not
create or issue any further new shares having any priority to
the Series "B" Special Shares and will not issue any further
Series "B" Special Shares,
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d) that Tellurian is the sole shareholder of Cyberport,
e) that Xxxxxx Xxxxxx, Xxxxx Xxxxxx and Xxxxxxx Xxxxxx are the
current directors of Cyberport,
f) that Xxxxxxx Xxxx is the President, Xxxxxx Xxxxxx is the
Vice President and Xxxxx Xxxxxx is the Secretary of
Cyberport,
g) that Xxxxx Xxxxxx is authorized on behalf of Cyberport to
execute this agreement and that it shall be a binding
obligation of Cyberport,
h) A solicitor's opinion regarding the validity of Cyberport's
actions herein will be provided on closing,
i) a Certificate of Incumbency will be provided on closing,
and
j) the Board of Directors of Cyberport shall be increased from
three to five and the Claimants shall be entitled to appoint
two persons to the Board to hold office until such time as all
of the Series "B" Special Shares held by the Claimants have
been redeemed or are exchanged for stock in Tellurian. The two
nominated directors by the Claimants shall be Canadian
residents.
11. Tellurian hereby represents and warrants:
a) the only issued and authorized stock in the company is
common stock, all of which have the same rights and
privileges and are the same stock described in this
agreement,
b) that Xxxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxx
Xxx and Xxxxx Xxxxxx are the current directors of
Tellurian,
c) that Xxxxxx Xxxxxx is the President, Xxxxxx Xxxxxxx is
Vice-President, Xxxxxxx Xxxx is Vice-President and Xxxxxxx
Xxxxxxx is Secretary of Tellurian,
d) that Xxxxxxx Xxxx is authorized on behalf of Tellurian to
execute this agreement and that it shall be binding
obligation of Tellurian,
e) a Certificate of Incumbency will be provided on closing,
and
f) an attorney's opinion regarding the validity of Tellurian's
actions herein shall be provided on closing.
12. Time is of the essence of this agreement.
13. This agreement supersedes and takes the place of any and all
prior agreements entered into by the parties. It is agreed that
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there is no representation, warranty, collateral agreement or condition
affecting this agreement except as expressed in it.
14. No change or modification of this agreement shall be valid unless it be
in writing and signed by each party hereto.
15. This agreement shall be governed by and construed in accordance with
the laws of the Province of Ontario, Canada.
16. This agreement shall enure to the benefit of and be binding upon the
respective heirs, executors, administrators, successors and assigns of
the parties hereto.
17. For the convenience of the parties hereto, this Agreement may be
executed in one or more counterparts, and transmitted by facsimile
transmission, each of which shall be deemed to be an original for all
purposes and shall constitute one agreement, binding on all parties.
18. In order to be binding, this agreement must be signed by all parties,
and Xxxxxxxxx and Associates (on behalf of the Claimants) and
Blackadder, Xxxxx, Xxxxxx, Halinda and Wood (on behalf of Cyberport and
Tellurian) each having a facsimile copy evidencing each party's
signature, on or before March 26, 1998 at 10 am, otherwise this
agreement shall be null and void.
19. This settlement shall be effected on March 26, 1998 at which time all
documents described herein shall be exchanged by the parties. At such
closing the Claimants are also to receive from 1174757 all documents
and security agreed upon as between those parties with respect to the
Claimants assignment of $1,000,000.00 of their debt to 1174757.
20. The Claimants all agree that all of the shares to be issued to them
pursuant to this agreement contained in one share certificate and shall
be engrossed in favour of "Phoenix Wood Products Corporation in Trust
and Xxxxxx Bros. Limited in Trust".
IN RECOGNITION OF THE ABOVE, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date set out beside
their respective signatures.
CYBERPORT NIAGARA INC.
Per:
Date:March 26, 1998 /s/ Xxxxx Xxxxxx
---------------------------------------
Name/Title: Xxxxx Xxxxxx/Secretary
I have the authority to bind the
Corporation
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TELLURIAN, INC.
Per:
Date: March 26, 1998 /s/ Xxxxxxx Xxxx
---------------------------------------
Name/Title: Xxxxxxx Xxxx/Vice President
I have the authority to bind the
Corporation
XXXXXX BROS. LIMITED
Per:
Date: March 26, 1998 /s/ Xxxxx Xxxxxxx
---------------------------------------
Name/Title:Xxxxx Xxxxxxx/President
I have the authority to bind the
Corporation
PHOENIX WOOD PRODUCTS CORPORATION
Per:
Date: March 26, 1998 /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name/Title:Xxxxxxx Xxxxxx/President
I have the authority to bind the
Corporation
STAR TILE CENTRE LIMITED
Per:
Date: March 26, 1998 /s/ Hans Haltjes
---------------------------------------
Name/Title:Hans Haltjes/President
I have the authority to bind the
Corporation
ECCO ELECTRIC LIMITED
Per:
Date: March 26, 1998 /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name/Title:Xxxxxxx Xxxxxx/
Authorized Solicitor
I have the authority to bind the
Corporation
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DBN DRYWALL & ACOUSTICS LIMITED
Per:
Date: March 26, 1998 /s/ Xxx Xxxxxx
---------------------------------------
Name/Title: Xxx Xxxxxx, President
I have the authority to bind the
Corporation
EXPOPLEX INCORPORATED
Per:
Date: March 26, 1998 /s/ Xxxxxxx Xxxxxx
---------------------------------------
Name/Title:Xxxxxxx Xxxxxx/Assignee of
Expoplex Incorporated
I have the authority to bind the
Corporation
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