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THIS AGREEMENT made as of the 4th day of January, 1999.
BETWEEN:
XXXXX INTERNATIONAL CORP., a corporation organized
pursuant to the laws of the State of Washington,
having an office at Xxxxx 0000, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0,
("Xxxxx")
AND:
MFC MERCHANT BANK S.A., a corporation organized
pursuant to the laws of Switzerland, having an office
at 6 Cours de Rive, 1211 Xxxxxx 0, Xxxxxxxxxxx,
("Merchant Bank")
WHEREAS:
X. Xxxxx and Merchant Bank entered into an agreement as at December 31, 1998,
whereby Xxxxx sold to Merchant Bank and Merchant Bank purchased from Xxxxx
2,500,000 shares of common stock (the "Purchased Shares") of ICHOR Corporation
("ICHOR"), and the parties hereby desire to reflect in writing their
understanding of the terms and conditions of their agreement;
B. Shares of common stock of ICHOR, a corporation organized pursuant to the
laws of the State of Delaware, are quoted for trading on the NASDAQ SmallCap
Market ("NASDAQ"); and
C. ICHOR entered into an agreement (the "Nazca Agreement") with Nazca
Holdings Ltd. ("NHL") dated October 20, 1998 to acquire all of the issued and
outstanding shares of NHL held by eight shareholders (the "Vendors"), in
consideration for which Xxxxx entered into an agreement (the "Collateral
Agreement") with the Vendors pursuant to which Xxxxx agreed to transfer
1,400,435 shares of common stock of ICHOR (the "Committed Shares") to the
Vendors, subject to certain conditions;
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the premises
and the mutual agreements and covenants herein contained, the parties hereto
hereby covenant and agree as follows:
Purchase of Shares
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1.1 Subject to the terms hereof, Xxxxx hereby agrees to sell, assign and
transfer to Merchant Bank and Merchant Bank hereby agrees to purchase
from Xxxxx all of the Purchased Shares.
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1.2 The price payable by Merchant Bank for the Purchased Shares (the
"Purchase Price") shall be 94% of the proceeds from the future sales by
Merchant Bank of all or part of the Purchased Shares.
1.3 Merchant Bank shall complete the sale of all of the Purchased Shares on
or before December 31, 2003.
1.4 The Purchase Price shall be paid to Xxxxx at the principal office of
Xxxxx by way of certified cheque or bank draft within five (5) business
days of each sale of the Purchased Shares by Merchant Bank.
1.5 In the event that the conditions to the transfer of the Committed
Shares under the Collateral Agreement are not fulfilled on or before
March 31, 1999, Merchant Bank shall sell the Committed Shares and pay
the Purchase Price to Xxxxx in accordance with the terms hereof.
Covenants, Representations and Warranties
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Xxxxx covenants, represents and warrants to Merchant Bank as at December 31,
1998, and acknowledges that Merchant Bank is relying upon such covenants,
representations and warranties in purchasing the Purchased Shares, as follows:
(a) Xxxxx is a corporation duly incorporated and validly subsisting in all
respects under the laws of the State of Washington and currently is in
good standing with respect to all required filings with each
governmental or regulatory or other authority having jurisdiction;
(b) Xxxxx is the legal and beneficial owner of, and has good and marketable
title to, all of the Purchased Shares held by it, free and clear of any
and all encumbrances, and such Purchased Shares are issued and
outstanding as fully paid and non-assessable;
(c) Xxxxx caused the Purchased Shares held by it to be delivered to
Merchant Bank free and clear of any mortgages, liens, charges,
restrictions, security interests, adverse claims, pledges, encumbrances
or demands, whatsoever;
(d) Xxxxx has taken all necessary or desirable actions, steps and corporate
and other proceedings to validly approve and authorize the entering
into, and the execution, delivery and performance of, this Agreement
and the sale and transfer of the Purchased Shares to Merchant Bank, and
the execution, delivery and performance of this Agreement, and the
completion of the transactions contemplated hereby, will not constitute
or result in a violation or breach of, or default under, the
incorporation documents, by-laws or other constating documents of
Xxxxx, or the terms of any agreement or understanding or other
obligation to which Xxxxx is a party or by which Xxxxx is bound; and
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(e) this Agreement has been duly executed and delivered by Xxxxx and
constitutes valid and binding obligations enforceable against Xxxxx in
accordance with its terms.
Merchant Bank covenants, represents and warrants to Xxxxx as at December 31,
1998, and acknowledges that Xxxxx is relying upon such covenants,
representations and warranties in selling the Purchased Shares, as follows:
(a) Merchant Bank is a corporation duly organized and validly subsisting in
all respects under the laws of Switzerland and is in good standing with
respect to all required filings with each governmental or regulatory or
other authority having jurisdiction;
(b) Merchant Bank has taken all necessary or desirable actions, steps and
corporate and other proceedings to validly approve and authorize the
entering into, and the execution, delivery and performance of, this
Agreement and the purchase of the Purchased Shares from Xxxxx, and the
execution, delivery and performance of this Agreement, and the
completion of the transactions contemplated hereby, will not constitute
or result in a violation or breach of, or default under, the
incorporation documents, by-laws or other constating documents of
Merchant Bank, or the terms of any agreement or understanding or other
obligation to which Merchant Bank is a party or by which Merchant Bank
is bound; and
(c) this Agreement has been duly executed and delivered by and on behalf of
Merchant Bank and constitutes valid and binding obligations enforceable
against Merchant Bank in accordance with its terms.
Closing
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At the closing of the transaction herein provided for on December 31, 1998,
Xxxxx delivered:
(a) definitive certificates for the Purchased Shares, duly registered as
Merchant Bank requested; and
(b) such further documentation as Merchant Bank reasonably required in a
form satisfactory to Merchant Bank.
Notwithstanding the date hereof, the transaction herein provided reflects the
agreement of the parties as at December 31, 1998 and shall have economic
effect as of such date.
All warranties, representations, covenants and agreements herein contained or
contained in any document submitted pursuant to this Agreement and in
connection with the transaction herein contemplated survives the purchase by
Merchant Bank and sale by Xxxxx of the Purchased Shares and continues in full
force and effect for the benefit of Merchant Bank.
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This Agreement shall be governed by and interpreted in accordance with the
laws of the Province of British Columbia and the laws of Canada applicable
therein, and time shall be of the essence hereof.
This Agreement constitutes the entire agreement between the parties and,
except as stated herein and in the instruments and documents to be executed
and delivered pursuant hereto, contains all of the representations,
warranties, covenants and agreements of the respective parties hereto.
This Agreement may be executed in any number of counterparts or by facsimile,
each of which shall together constitute one and the same instrument and shall
together be deemed to be an original, notwithstanding that all of the parties
are not signatory to the same counterpart or facsimile.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
day and year first above written.
MFC MERCHANT BANK S.A.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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Title: Director
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XXXXX INTERNATIONAL CORP.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Director
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