EXHIBIT 10.12
THIS AGREEMENT made as of the 29th day of January, 1999.
BETWEEN:
CAN-CAL RESOURCES LTD., a body corporate,
having a place of business situate at 0000 Xxxxxxx Xxxx,
Xxx Xxxxx, Xxxxxx XXX 00000;
(hereinafter called the "Vendor")
OF THE FIRST PART
AND:
545538 B.C. LTD., (Inc. No. 545538), a body
corporate, duly incorporated under the laws of
the Province of British Columbia and having its
registered office situate at #208 - 0000 Xxxxxxxxxx
Xxxxxx, Xxxxxxx, X.X. X0X 0Xx;
(hereinafter called the "Purchaser")
OF THE SECOND PART
AND:
XXXXXX XXXXXX XXXXX, Businessman, of #203,
Building 2, 0000 Xxxxxxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxx XXX 00000
(hereinafter called the "Covenantor")
OF THE THIRD PART
WITNESSETH that for and in consideration of the promises, covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. VENDORS WARRANTIES AND REPRESENTATIONS
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1.01 The Vendor warrants and represents that:
(a) SCOTMAR INDUSTRIES INC. (hereinafter called the "Company") is a
corporation duly incorporated under the laws of the Province of
British Columbia as a non-reporting company, is validly existing,
and is in good standing in British Columbia and does not carry on
business outside that province;
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(b) The authorized capital of the Company is THREE HUNDRED THOUSAND
shares divided into One Hundred Thousand Class "A" Voting Common
Shares without par value; One Hundred Thousand Class "B"
Non-Voting Common Shares without par value; and One Hundred
Thousand Class "C" Non-Voting Preference Shares without par
value, of which there are Ten (10) Class "A Voting Common Shares
and One (1) Class "B" Non-Voting Common Shares issued and
outstanding as fully paid and non-assessable Shares;
(c) The Vendor is the registered holder and beneficial owner of
the following, shares:
Name Number/Class/Kind
---- -----------------
Can-Cal Resources Ltd. Ten (10) Class "A" Voting Common Shares
Can-Cal Resources Ltd. One (1) Class "B" Non-Voting Share
(hereinafter called the "Vendor's Shares");
(d) The Vendor's Shares are validly issued and outstanding as fully
paid and non- accessible in the capital of the Company and are
free and clear of all liens, charges and encumbrances;
(e) The Vendor has good and sufficient right and authority to enter
into this Agreement on the terms and conditions herein set forth
and to transfer the legal and beneficial title and ownership of
the Vendor's Shares to the Purchaser;
(f) There are no outstanding securities of the Company which are
convertible into shares in the capital of the Company and there
are no outstanding options on or rights to subscribe for any of
the unissued shares in the capital of the Company or options to
purchase the Vendor's Shares;
(g) The directors and officers of the Company are as follows:
Directors: - XXXXX X. XXXXXXX
Officers: President - XXXXX X. XXXXXXX
Secretary - XXX XXXXXXX
(h) The unaudited balance sheet of the Company as of December 31,
1997 and the supporting statements for the year ended December
31, 1997 which are attached to this Agreement as Schedule "A"
were prepared by Xxxxxxxx & Company, Chartered Accountants, in
accordance with generally accepted accounting principles applied
on a basis consistent with prior years and the monthly financial
statements for the year 1998 are substantially correct in every
particular and present fairly and
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accurately the financial condition and position of the Company as
at December 31, 1998 and the results of its operations for the
year ended on December 31, 1998;
(i) There are no liabilities of the Company arising in respect of
operations of the Company or incurred on or before December 31,
1998 not disclosed or reflected in Schedule "A" and no such
undisclosed liabilities have been paid since December 31, 1998;
(j) There are no liabilities of the Company which are not disclosed
or reflected in Schedule "A" except those incurred in the
ordinary course of its business since December 31, 1998;
(k) The provision for doubtful accounts receivable as recorded in
Schedule "A" are, and collections since December 31, 1998 have
proven them to be, adequate;
(l) Since December 31, 1998:
(i) no dividends of any kind have been declared or paid by the
Company;
(ii) no capital expenditures or commitments therefore have been
made by the Company;
(iii) there has been no material adverse change in the financial
position or condition of the Company and no damage, loss
or destruction materially affecting the business or
property of the Company;
(iv) the Company has not increased the pay of or paid or agreed
to pay any pension, bonus, share of profits or other
similar benefit to, or for the benefit of, any employee,
director, or officer of the Company, except increases in
normal course of business to employees other than officers
and directors; and
(v) the Company has conducted its business in its usual and
normal manner;
(m) The Company has good title to and possession of all the assets
referred to in Schedule "A" and all assets acquired since
December 31, 1998, are free and clear of all liens, charges or
encumbrances except those described in Schedule "B", and is not
in default of any term of any lien, charge or encumbrance
described in Schedule "B". All machinery and equipment comprised
in the assets are in normal operating condition and in a state of
reasonable maintenance and repair;
(n) The Company is the holder of a valid and subsisting Lease
Agreement with Xxx Xxx Xxxx and Xxxxx Xxxx of the lands and
premises more particularly described in Schedule "C" hereto;
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(o) All leases of equipment as more particularly described in
Schedule "D" hereto are valid and subsisting leases and the rents
thereby reserved have been fully and duly paid up to the Closing
Date as hereinafter defined and the covenants and conditions
therein contained have been duly performed by the Company to the
date hereof and the Company has not assigned or encumbered any
such leases;
(p) The Company is indebted to the Vendor in the amount of ONE
HUNDRED SIXTY- SEVEN THOUSAND FOUR HUNDRED SEVENTY-SEVEN DOLLARS
AND SIXTY-THREE CENTS ($167,477.63), which said sum the Vendor
shall assign to the Purchaser on the Closing Date (hereinafter
called the "Vendor's Shareholder Loans");
(q) The Company is not subject to any contract or agreement running
for more than one year save and except for the following: (i)
Lease relating to the Promises of the Company.
(r) The Company has been assessed for federal and provincial income
tax for all years to and including the fiscal year of the Company
ended December 31, 1998 and adequate provision will be made on
Closing for any and all taxes payable by the Company for the
period of operations to and including December 31, 1998;
(s) The office or employment of all employees and officers of the
Company can be terminated by not more than 4 weeks notice;
(t) The Vendor is not indebted to the Company;
(u) To the best of the Vendor's knowledge, the Company is not in
breach of any statute, regulation or by-law applicable to the
Company or its operations;
(v) The Vendor is not "resident in Canada" within the meaning of that
phrase in Section 116 of the Income Tax Act of Canada;
(w) The Company holds all permits, licences, consents and authorities
issued by any federal, provincial, regional or municipal
government or agency thereof which are necessary or desirable in
connection with the operations of the Company and the ownership
of its assets and a true and complete list of the permits,
authorities, licences and consents held by the Company is set out
in Schedule "E";
(x) To the best of the: Vendor's knowledge, the making of this
Agreement and the completion of the transactions contemplated
hereby and the performance of and compliance with the terms
thereof, does not conflict with or result in the breach of or the
acceleration of any indebtedness under, any terms, provisions or
conditions of, or constitute default under the Memorandum or
Articles of the Company or any
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indenture, mortgage, deed of trust, agreement, lease, franchise,
certificate, consent, permit, licence, authority, or other
instrument to which the Company is a party or is bound or any
judgment, decree, order, rule or regulation of any court or
administrative body by which the Company is bound or, to the
knowledge of the Vendor any statute or regulation applicable to
the Company;
(y) The Company has no bank or chequing accounts, safety deposit
boxes or other depositories except as set out in Schedule "F";
(z) **deleted**
(aa) The Company is not party to any collective agreement with any
labour union or other association of employees;
(bb) The Company is not a party to any pension, profit sharing, group
insurance, or similar plans or other deferred compensation plans,
save and except for a group insurance plan with the Automotive
Retailers Association;
(cc) The Company has not experienced nor is it aware of any occurrence
or event which has had, or might reasonably be expected to have,
a materially adverse effect on its business or the results of its
operations;
(dd) The Company has made all elections required to be made under the
Income Tax Act in connection with any distributions by the
Company and all such elections were true and correct;
(ee) The Company has withheld and remitted to Revenue Canada, or the
applicable tax collecting authority, all amounts required to be
withheld and remitted to Revenue Canada or the tax collecting
authority respecting payments to employees and has paid all
installments of corporate taxes due and payable;
(ff) All Workers' Compensation Board, corporation capital tax,
provincial sales tax and federal tax returns, and all employee
remittances, Canada Pension Plan, Unemployment Insurance and
other reports and information required to be filed with all
applicable government authorities, agencies and regulatory bodies
have been duly and timely filed; and
(gg) **deleted**
2. SURVIVAL OF COVENANTS
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2.01 The representations, warranties, covenants and agreements by the Vendor and
the Purchaser contained in this Agreement or in the documents delivered pursuant
hereto or in connection with
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the transactions contemplated hereby shall be true at and as of the time of
closing as though such representations were made at and as of such time.
2.02 Notwithstanding any investigations or enquiries made by the Purchaser prior
to the closing or the waiver of any condition by the Purchaser, the
representations, warranties, covenants and agreements of the Vendor and the
Purchaser shall survive the closing and notwithstanding the closing of the
purchase and sale herein contemplated shall continue in full force and effect.
3. PURCHASE AND SALE
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3.01 On the basis of the warranties and representations of the Vendor set forth
in Paragraph 1 of this Agreement and subject to the terms and conditions of this
Agreement, the Purchaser agrees to buy from the Vendor and the Vendor agrees to
sell to the Purchaser, on the Closing Date (hereinafter defined), the Vendor's
Shares and the Vendor's Shareholder Loans for the sum of NINETY-NINE THOUSAND
EIGHT HUNDRED ($99,800.00) Dollars of lawful money of Canada (hereinafter called
the "Purchase Price"). The Purchase Price shall be allocated as follows:
(a) Vendor's Shares $ 1.00
(b) Vendor's Shareholder Loans 99,799.00
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TOTAL: $99,800.00
3.02. The Purchase Price shall be paid and satisfied as follows:
(a) the sum of $1,000.00 at or before the execution hereof, the
receipt of which the Vendor does hereby acknowledge;
(b) the sum of $43,800.00 shall be paid by the Purchaser to the
Vendor on the Closing Date, subject to the provisions of this
Agreement; and
(c) the balance, namely the sum of $55,000.00, together with interest
at the rate of Eight (8%) Percent per annum, calculated yearly,
not in advance, as and from the Closing Date until paid, shall be
paid by the Purchaser to the Vendor on February 25, 1999,
provided that the Vendor has delivered a Certificate as
contemplated in paragraph 4.04. In the event the Vendor has not
delivered a Certificate within 90 days from the Closing Date,
then the Purchaser shall be entitled to invoke the provisions of
paragraph 4.04 hereof.
4. COVENANTS OF THE VENDOR
-----------------------
4.01 The Vendor shall do all reasonable acts and things to assist the Purchaser
and the officers and directors of the Company in continuing and furthering the
business and goodwill of the Company.
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4.02 The Vendor will cause the Company at all reasonable times prior to the
Closing Date to permit representatives of the Purchaser full access to its
property and books and records including contracts and agreements, minute books
and share registers, to give the Purchaser and its representatives such
information with respect thereto as may be reasonably required and to permit the
Purchaser to make such audit (at its cost) of the books of account of the
Company as the Purchaser may see fit.
4.03 The vendor shall cause to be obtained on the Closing Date the written
resignation of Xxxxx X. Xxxxxxx as a director and officer and Xxx Xxxxxxx as an
officer.
4.04 The Vendor shall, if required by the Purchaser, cause to be delivered to
the Purchaser a certificate issued pursuant to Section 116(4) of the Income Tax
Act of Canada, or a certificate issued pursuant to Section 116(2) of the Income
Tax Act of Canada in respect of the purchase and sale contemplated by this
Agreement fixing a certificate limit which is not less than the cost to the
Purchaser of the Assets, or failing delivery of either certificate, will permit
the Purchaser to withhold such amount as the Purchaser would be liable to pay on
behalf of the Vendor pursuant to Section 116(5) of the Income Tax Act of Canada
(hereinafter called the "Holdback") from any amount or amounts otherwise payable
to the Vendor pursuant to this Agreement. The Holdback will be paid in trust to
Messrs. Hawthorne, Xxxxxxx & Company to pay the Holdback to the Vendor upon
delivery to Messrs. Hawthorne, Xxxxxxx & Company of a certificate issued
pursuant to Section 116 of the Income Tax Act of Canada which is satisfactory to
the Purchaser or to pay out of the Holdback the tax payable by the Purchaser
pursuant to Section 116(5) of the Income Tax Act of Canada and the balance, if
any, to the Vendor.
4.05 The Vendor shall pay all wages and salaries and all amounts due in lieu of
holiday pay to and including the Effective Date to all officers and employees of
the Company. The Vendor shall and the Covenantor shall remain solely liable for
any and all severance due to any such officer and/or employee
4.06 The Vendor will cause its Chartered Accountants to prepare audited
Financial Statements for the Company as of December 31, 1998, together with all
schedules and corporate Income Tax Returns, at the Vendor's cost.
5. CONDITIONS
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5.01 The Purchaser's obligation to carry out the terms of this Agreement and to
complete the purchase referred to in paragraph 3 hereof is subject to the
following conditions:
(a) that on the Closing Date the warranties and representations of
the Vendor as set forth in paragraph 1 of this Agreement shall be
true in every particular as if such warranties and
representations had been made by the Vendor on the Closing Date;
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(b) that all of the agreements to be performed by the Vendor
hereunder shall have been performed;
(c) that the Vendor shall have delivered to the Purchaser:
(i) Resignations in writing of all directors and officers of
the Company;
(ii) a certified copy of a resolution of the directors of the
Company authorizing the transfer of the Vendor's Shares
and registration of the same in the name of the Purchaser
and authorizing the issue of new share certificates
representing the Vendor's Shares in the name of the
Purchaser;
(iii) a duly executed share certificate in the name of the
Purchaser representing the Vendor's Shares;
(iv) all corporate records of the Company including the minute
books, share register book, share certificate books and
annual reports as well as the common seal of the Company;
(v) all share certificates of the Vendor, duly endorsed, for
transfer; and
(vi) a General Security Agreement executed by the Company in
order to secure the balance due under paragraph 3.02(c);
(vii) a guarantee in the form set forth in Schedule "G";
(viii) **deleted**
(ix) an Assignment of Shareholder Loans in favour of the
Purchaser.
5.02 The conditions set forth in paragraph 5 of this Agreement are for the
exclusive benefit of the Purchaser and may be waived by the Purchaser in writing
in whole or in part on or before the Closing Date but except as so waived the
completion of the purchase referred to in paragraph 3 hereof by the Purchaser
shall not prejudice or affect in any way the rights of the Purchaser in respect
of the warranties and representations of the Vendor set forth in paragraph 1 of
this Agreement.
6. INDEMNIFICATION
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6.01 The Vendor and the Covenantor, jointly and severally, covenant and agree to
indemnify and save the Purchaser harmless from all loss, damage, costs, actions
and suits arising out of or in connection with any breach of any representation,
warranty, covenant, agreement or condition contained in this Agreement including
any loss resulting from any reassessment for income or corporate tax, interest
and/or penalties for a period up to the Closing Date. The Vendor and the
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Covenantor acknowledge and agree that the Purchaser has entered into this
Agreement relying on the warranties and representations and other terms and
conditions of this Agreement and that no information which is now known or which
may hereafter become known to the Purchaser or its officers, directors or
professional advisors shall limit or extinguish the right to indemnity
hereunder. The Purchaser may deduct the amount of any loss or damage from any
installment of the unpaid purchase price.
7. GENERAL PROVISIONS
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7.01 Time shall be of the essence of this Agreement.
7.02 The parties hereto shall execute and deliver such further and other
documents, instruments and things and do all acts and things as may be requisite
either before or after the Closing Date to carry out the full intent and meaning
of this Agreement.
7.03 This Agreement contains the whole agreement between the parties hereto in
respect of the purchase and sale contemplated herein, and there are no
warranties, representations, terms, conditions or collateral agreements,
express, implied or statutory other than as expressly set forth in this
Agreement.
7.04 Delivery of an executed copy of this Agreement by telecopy, telex or other
means of electronic communication producing a printed copy will be deemed to be
execution and delivery of this Agreement on the date of such communication by
the party so delivering such copy, subject to delivery of an originally executed
copy of this Agreement to the other parties hereto within two (2) weeks of the
date of delivery of the copy sent via the electronic communication.
7.05 This Agreement may be executed by the parties in two or more counterparts
and such counterparts as so executed together form one original Agreement and
shall be read together and construed as if all the parties had executed one
original Agreement
8. NOTICE
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8.01 Any notice to be given under this Agreement shall be duly and properly
given if mailed by prepaid registered post in British Columbia addressed as
follows and any such notice shall be deemed to be received 48 hours after the
hour of mailing:
(a) To the Purchaser:
545538 B.C. LTD.,
#000-0000 Xxxxxxxxxx Xxxxxx,
Xxxxxxx, X.X. X0X 0X0
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(b) To the Vendor:
CAN-CAL RESOURCES LID.,
0000 Xxxxxxx Xxxx,
Xxx Xxxxx, Xxxxxx XXX 00000
(d) To the Covenantor:
XXXXXX XXXXXX XXXXX,
#203 Building 2, 0000 Xxxxxxxxx Xxxxxx,
Xxx Xxxxx, Xxxxxx XXX 00000
or at such other address as the Purchaser or the Vendor may from time to time
designate by notice in writing to the other.
9. CLOSING DATE
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9.01 The purchase and sale contemplated herein shall take effect as of and from
the closing of business on January 29, 1999 (hereinafter called the "Effective
Date") and the Closing shall take place by an exchange of documents with
appropriate solicitors' undertakings, on January 29, 1999 (which date is herein
called the "Closing Date").
IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals
the day and year first above written.
The Common Seal of CAN-CAL )
RESOURCES LTD. was )
hereunto affixed in the presence of: )
) c/s
)
)
Per: /s/ Xxxxx Xxxxx )
------------------------------
Authorized Signatory
SIGNED, SEALED AND DELIVERED )
by the Covenantor, XXXXXX XXXXXX )
XXXXX in the presence of: )
) /s/ X. X. Xxxxx
Xxxxx Xxxxxxx ) ----------------------
----------------------------------- ) XXXXXX X. XXXXX
16008 Ash St. )
------------------------------------ )
Xxxxxxxx, XX 00000 )
------------------------------------
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The Common Seal of 545538 B.C. LTD. )
was hereunto affixed in the presence of: )
)
) c/s
)
Per: /s/ Xxxxxxx Xxxxxx )
-------------------------------
Authorized Signatory
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