1
PREFERRED STOCK CONVERSION AGREEMENT
This Agreement dated for reference the 21st day of December, 2000.
BETWEEN:
MED NET INTERNATIONAL LTD., a corporation organized under the
laws of Bermuda, with an address at Xxxxxxxxx Xxxxx, 00 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxx, XX00
(xxx "Shareholder")
AND:
ICHOR CORPORATION, a corporation organized under the laws of
Delaware in the United States
("ICHOR")
WHEREAS:
A. The Shareholder is the beneficial owner of 30,000 shares of 5%
Cumulative Redeemable Convertible Preferred Stock, Series 1 (the
"Series 1 Preferred Stock") in the capital of ICHOR; and
B. The Shareholder has agreed with ICHOR as to the conversion of its
shares of Series 1 Preferred Stock of ICHOR, upon the terms and
conditions set forth herein.
NOW THEREFORE, the parties hereto agree as follows:
1. CONVERSION
1.1 Subject to the terms and conditions hereof, the Shareholder hereby
sells, assigns and transfers to ICHOR 30,000 shares of Series 1 Preferred
Stock beneficially owned by the Shareholder in consideration of 300,000
shares of common stock, par value $0.01 per share (the "Common Stock") in
the capital of ICHOR.
2. REPRESENTATIONS AND WARRANTIES
2.1 ICHOR represents and warrants to the Shareholder that the statements
contained in this Section 2.1 are correct and complete as of the date of
this Agreement and shall be correct and complete as of the Closing Date (as
though made then) and hereby acknowledges and confirms that the Shareholder
is relying upon such representations and warranties in connection with the
transactions contemplated herein:
(a) ICHOR has been duly organized and is validly existing and in
good standing under the laws of its jurisdiction of
organization. ICHOR is duly authorized to conduct business and
is in good standing under the laws of each jurisdiction where
such qualification is required. ICHOR has full corporate power
and authority to carry on the businesses in which it is engaged
and to own and use the properties owned and used by it;
2
(b) ICHOR has all necessary power and authority to execute and
deliver this Agreement and to perform its obligations
hereunder. This Agreement has been duly executed and delivered
by and on behalf of ICHOR and constitutes legal, valid and
binding obligations of ICHOR enforceable against ICHOR in
accordance with its terms; and
(c) the shares of Common Stock of ICHOR to be issued upon
conversion of certain shares of Series 1 Preferred Stock
hereunder shall be duly and validly issued and outstanding as
fully paid and non-assessable.
2.2 The Shareholder represents and warrants to ICHOR that the statements
contained in this Section 2.2 are correct and complete as of the date of
this Agreement and shall be correct and complete as of the Closing Date (as
though made then) and hereby acknowledges and confirms that ICHOR is
relying upon such representations and warranties in connection with the
transactions contemplated herein:
(a) it has all necessary power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. This
Agreement has been duly executed and delivered by and on its
behalf and constitutes legal, valid and binding obligations of
it enforceable against it in accordance with its terms;
(b) the shares of Series 1 Preferred Stock owned by it are owned by
it as the sole legal and beneficial owner of record with good,
full and marketable title thereto, free and clear of any
mortgages, liens, charges, restrictions, security interests,
adverse claims, pledges, encumbrances or demands whatsoever,
and are issued and outstanding as fully paid and non-
assessable;
(c) no person, firm or corporation has any agreement or option, or
any right or privilege (whether by law, pre-emptive or
contractual) capable of becoming an agreement or option for the
purchase, acquisition, transfer or contribution from it of any
of the shares of Series 1 Preferred Stock or any interest
therein or right thereto owned by it, other than pursuant
hereto; and
(d) there is no legal or regulatory action or proceeding pending or
threatened by any person to enjoin, restrict or prohibit the
conversion by it as contemplated herein.
2.3 The Shareholder acknowledges and agrees that: (i) the shares of
Common Stock of ICHOR acquired pursuant hereto have not been and will not
be registered under the Securities Act of 1933, as amended, of the United
States (the "Securities Act") or the securities laws of any state; (ii) the
sale contemplated hereby is being made in reliance on either Rule 144A to
Qualified Institutional Buyers or under Regulation S to non U.S. persons
outside the United States in reliance upon Regulation S; and (iii) the
shares of Common Stock of ICHOR acquired pursuant hereto are deemed to be
"restricted securities" within the meaning of Rule 144 under the Securities
Act.
2.4. The Shareholder acknowledges and agrees that if it decides to
offer, sell or otherwise transfer the shares of Common Stock of ICHOR
acquired pursuant hereto, such securities may be offered, sold or otherwise
transferred only: (i)(A) to a person whom the seller reasonably believes is
a Qualified Institutional Buyer purchasing for its own account or is
purchasing for the account of a Qualified Institutional Buyer in a
transaction meeting the requirements of Rule 144A; (B) in an offshore
transaction (as defined in Rule 902 under the Securities Act) meeting the
requirements of Rule 904 under the Act; (C) in a transaction meeting the
requirements of Rule 144 under the Securities Act; (D) to an institutional
"Accredited Investor" as defined
2
3
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act
that, prior to such transfer, furnishes ICHOR an opinion of counsel or
other documentation containing certain representations and agreements
relating to the registration or transfer of the shares that such transfer
is in compliance with the Securities Act; or (E) in accordance with another
exemption from the registration requirements of the Securities Act; (ii) to
ICHOR; or (iii) pursuant to an effective registration statement under the
Securities Act and, in each case, in accordance with any applicable
securities laws of any state of the United States or any other applicable
jurisdiction, and the Shareholder will, and each subsequent holder is
required to, notify any purchaser of the security evidenced thereby of the
resale restrictions set forth above.
2.5 The Shareholder acknowledges and agrees that the certificates
representing the shares of Common Stock to be delivered to the Shareholder
upon the terms described herein shall bear a legend substantially upon the
terms described in Section 2.4 above.
3. COVENANTS
3.1 Each of the parties hereto severally covenants that it shall use all
commercially reasonable efforts to take all action and do all things
necessary, proper or advisable in order to consummate and make effective
the transactions contemplated by this Agreement.
4. CLOSING PROCEDURE
4.1 The closing of the transactions contemplated herein shall take place
on December 29, 2000, at 00, Xxxxx xx Xxxxxxxx, 0000 Xxxxxx 00,
Xxxxxxxxxxx, or at such other time or place as may be mutually agreed upon.
The date of the closing of the transactions contemplated in this Agreement
is referred to herein as the "Closing Date" and the time of closing on such
date is referred to herein as the "Time of Closing".
4.2 At the Time of Closing on the Closing Date, ICHOR shall:
(a) deliver to the Shareholder or its order certificates
representing the shares of Common Stock to be issued to the
Shareholder pursuant to Section 1.1 hereof; and
(b) deliver or cause to be delivered such other documents as are
required or contemplated to be delivered by ICHOR pursuant to
this Agreement.
4.3 At the Time of Closing on the Closing Date, the Shareholder shall:
(a) deliver to ICHOR certificates representing the shares of Series
1 Preferred Stock to be cancelled pursuant to Section 1.1
hereof; and
(b) deliver or cause to be delivered such other documents as are
required or contemplated to be delivered by the Shareholder
pursuant to this Agreement.
5. CONDITIONS OF CLOSING
5.1 The obligation of ICHOR to complete the transactions contemplated
herein shall be subject to the following conditions to be fulfilled and/or
performed at or prior to the Time of Closing on the Closing Date:
3
4
(a) the representations and warranties of the Shareholder contained
in this Agreement shall be true and correct in all material
respects at the Time of Closing, with the same force and effect
as if such representations and warranties were made at and as
of such time; and
(b) the Shareholder shall have complied with all covenants and
agreements herein agreed to be performed or caused to be
performed by it.
5.2 In the event that the conditions referred to in Section 5.1 hereof
shall not have been fulfilled at or prior to the Time of Closing to the
satisfaction of ICHOR, acting reasonably, or waived by ICHOR, this
Agreement shall be rescinded and ICHOR shall be released from all
obligations hereunder.
5.3 The obligation of the Shareholder to complete the transactions
contemplated herein shall be subject to the following conditions to be
fulfilled and/or performed at or prior to the Time of Closing on the
Closing Date:
(a) the representations and warranties of ICHOR contained in this
Agreement shall be true and correct in all material respects at
the Time of Closing, with the same force and effect as if such
representations and warranties were made at and as of such
time; and
(b) ICHOR shall have complied with all covenants and agreements
herein agreed to be performed or caused to be performed by it.
5.4 In the event that the conditions referred to in Section 5.3 hereof
shall not have been fulfilled at or prior to the Time of Closing to the
satisfaction of the Shareholder, acting reasonably, or waived by the
Shareholder, this Agreement shall be rescinded and the Shareholder shall be
released from all obligations hereunder.
6. INDEMNIFICATION
6.1 ICHOR agrees to indemnify and save harmless the Shareholder from all
claims, demands, proceedings, losses, damages, liabilities, deficiencies,
costs and expenses (including, without limitation, all legal and other
professional fees and disbursements, interest, penalties and amounts paid
in settlement) suffered or incurred as a result of or arising directly or
indirectly out of or in connection with: (i) any breach by ICHOR of or any
inaccuracy of any representation or warranty of ICHOR; or (ii) any breach
or non-performance by ICHOR of any covenant to be performed by it that is
contained in this Agreement or in any agreement, certificate or other
document delivered pursuant hereto.
6.2 The Shareholder agrees to indemnify and save harmless ICHOR from all
claims, demands, proceedings, losses, damages, liabilities, deficiencies,
costs and expenses (including, without limitation, all legal and other
professional fees and disbursements, interest, penalties and amounts paid
in settlement) suffered or incurred by ICHOR as a result of or arising
directly or indirectly out of or in connection with: (i) any breach by the
Shareholder of or any inaccuracy of any representation or warranty of the
Shareholder; or (ii) any breach or non-performance by the Shareholder of
any covenant to be performed by it, that is contained in this Agreement or
in any agreement, instrument, certificate or other document delivered
pursuant hereto.
4
5
7. COSTS AND EXPENSES
7.1 All costs and expenses of or incidental to the transactions
contemplated herein are to be assumed and paid by the party incurring such
costs and expenses.
8. SUCCESSORS AND ASSIGNS
8.1 All the terms and provisions of this Agreement shall be binding upon
and enure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns.
9. SURVIVAL
9.1 It is understood and agreed that all warranties, representations,
covenants, indemnities and agreements of the parties herein contained or
contained in any certificates or documents submitted pursuant to or in
connection with the transactions contemplated herein shall survive the
completion of the transactions contemplated herein and the termination of
this Agreement and shall continue in full force and effect for the benefit
of the other parties for a period of two years following the Closing Date.
10. FURTHER ASSURANCES
10.1 Each party to this Agreement covenants and agrees that, from time to
time, it will, at the request and expense of the requesting party, execute
and deliver all such documents and do all such other acts and things as any
other party hereto, acting reasonably, may from time to time request be
executed or done in order to better evidence or perfect or effectuate any
provision of this Agreement or of any agreement or other document executed
pursuant to this Agreement or any of the respective obligations intended to
be created hereby or thereby.
11. SEVERABILITY
11.1 Should a provision of this Agreement be or become invalid, the
validity of the remaining provisions of this Agreement shall not be
affected. The parties hereto undertake to replace any such invalid
provision without delay with a valid provision which as nearly as possible
duplicates the economic intent of the invalid provision.
12. GOVERNING LAW
12.1 This Agreement shall be construed and enforced in accordance with,
and the rights and obligations of the parties shall be governed by, the
laws of the State of New York in the United States.
5
6
13. COUNTERPARTS
13.1 This Agreement may be executed in any number of counterparts, each
of which when delivered, either in original or facsimile form, shall be
deemed to be an original and all of which together shall constitute one and
the same document.
IN WITNESS WHEREOF the parties have executed this Agreement in
counterparts, one for each party.
ICHOR CORPORATION
Per:
---------------------
Authorized Signatory
MED NET INTERNATIONAL LTD.
Per:
---------------------
Authorized Signatory
6
