TRANSLATION FOR CONVENIENCE ONLY - NOT LEGALLY BINDING
EXHIBIT
10.13
TRANSLATION
FOR CONVENIENCE ONLY - NOT LEGALLY BINDING
[TRANSLATION]
Agreement
of sale of shares entered into in Laval, on July 28, 0000, Xxxxxxxx
Xxxxxxxx xx Xxxxx, Xxxxxxxx xx Xxxxxx, Xxxxxx.
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BETWEEN:
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XXXX
XXXXXXXXX,
domiciled and residing at 0000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
xx Xxxxxx,
Xxxxxx, X0X 0X0;
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(hereinafter
referred to as: “Xxxxxxxxx”)
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AND:
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BRUNO
ST-ONGE,
domiciled and residing at 0000 Xxx Xxxxxxx Xxxx., Xxxxx-Xxxxxxxx,
Xxxxxx, Xxxxxx, X0X 0X0;
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(hereinafter
referred to as: “St-Onge”)
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AND:
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GESTION
BRUNO ST-ONGE INC.,
a
body politic duly incorporated pursuant to Part 1A of the
Companies
Act (Quebec),
with its registered office at 2400. Des Chenaux Blvd.,
Trois-Rivières, Quebec, Canada, G8Z 1A1, acting herein and
represented by Bruno St-Onge, duly authorized by a resolution
of its sole
director adopted on July 28, 2005;
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(hereinafter
referred to : “Gestion”)
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(Xxxxxxxxx,
St-Xxxx and Gestion hereinafter collectively referred to as:
the
“Vendor”).
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AND:
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WATER
BANK OF AMERICA INC.,
a
corporation legally incorporated pursuant to the Canada
Business Corporations Act,
with its registered office at 1000, de la Gauchetière West,
Suite 2400, Xxxxxxxx, Xxxxxx X0X 0X0, acting herein and
represented by Xxxxxx X. Xxxxxxxxx, duly authorized by a resolution
of its sole director adopted on July 28, 2005;
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(hereinafter
referred to as: the “Purchaser”)
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Page
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11
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AND:
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4287762
CANADA INC.,
a corporation legally incorporated pursuant to the Canada
Business Corporations Act,
with its registered office at 12,271 Xxxxx 00, Xxxxxxx Xxxxxxxxx,
Xxx
Xxxxxxxxx, Xxxxxx X0X 0X0, acting herein and represented by
Xxxx
Xxxxxxxxx, duly authorized by a resolution of its director adopted
on July
28, 2005;
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(hereinafter
referred to as: the “Corporation”)
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AND:
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XXXXXX X.
XXXXXXXXX,
businessman, domiciled and residing at 00, Xxxxxxxx, Xxxxxx-Xxxxxx,
Xxxxxx, Xxxxxx, X0X 0X0;
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AND:
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XXXX-XXXX
XXXXXXXXX,
businessman, domiciled and residing at 000 xxx Xxxxxxx Xxxxxx,
Xxx. 0000, Xxx des Soeurs, Xxxxxx,
X0X 0X0;
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AND:
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XXXXXX
XXXXXXXXX,
businessman, having elected domiciled for the purposes hereof
at 0000, xx
xx Xxxxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx,
X0X 0X0;
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AND:
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XXXXXX
XXXXXXXXX,
businessman, domiciled and residing at 0000 Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxx Xxxxx, 00000;
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(hereinafter
collectively referred to as: the
“Intervener”)
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WHEREAS
on or
about Xxxxx 00, 0000, Xxxxxxxxx made an offer to purchase in favour of the
Business Development Bank of Canada (hereinafter referred to as: “BDBC”)
regarding the acquisition of all of the assets of Breuvages Loric Beverages
Inc., as more fully described in the above-mentioned offer to purchase
(hereinafter referred to as: the “Assets”), which document is annexed hereto as
Schedule A
(hereinafter referred to as: the “Offer”);
WHEREAS
the
Vendor has transferred all of the rights held by it with respect to the
Offer
pursuant to Section 8 of the latter in order for the Corporation to
purchase all of the Assets, as more fully described in the Offer;
WHEREAS
the
Corporation completed the acquisition of the Assets on June 23, 2005, the
whole as it appears from documents contained in the closing agenda of which
this
agreement is a part;
Page
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WHEREAS
the
Corporation has begun to operate certain commercial activities in view
of
relaunching the activities of Breuvages Loric Beverages Inc., consisting
in the
marketing of bottled spring water;
WHEREAS
the
Vendor is the sole and unique owner of all the issued and outstanding shares
in
the share capital of the Corporation (hereinafter referred to as: the “Shares”),
which Shares are described in greater detail in the following
table:
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SHAREHOLDERS
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NUMBER
AND CLASS
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CERTIFICATES
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Xxxxxxxxx
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67
Class “A” Shares
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A-2
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St-Onge
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11
Class “A” Shares
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A-3
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Gestion
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22
Class “A” Shares
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A-4
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WHEREAS
the
Vendor wishes to sell the Shares to the Purchaser who wishes to purchase
them;
WHEREAS
the
Vendor has represented that:
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1.
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The
Corporation is a valid and subsisting which has the authority
to hold the
Assets which it presently owns;
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2.
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The
Shares that the Vendor is selling, transferring and conveying
are entirely
paid up and free of any charges whatsoever and the Vendor is
authorized to
sell them;
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3.
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The
Vendor is the true beneficial owner of the Shares thus sold and
such
shares are free of any lien, pledge, encumbrance or other charge
of any
nature whatsoever, and are not subject to any purchase options
or sale
agreements other than the one made herein in favour of the
Purchaser;
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4.
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To
its knowledge, no other person has any rights on the Assets of
the
Corporation;
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WHEREAS
the
Parties wish to record in writing their agreement concerning the acquisition
of
the Shares, which Shares are more fully described in the following provisions.
AS
A RESULT OF THE PRECEDING, THE PARTIES AGREE AS FOLLOWS:
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1.
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RECITALS
AND SCHEDULES
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The
preamble and the schedules, if any, are an integral part hereof.
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2.
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PURPOSE
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The
Vendor hereby sells the Shares to the Purchaser, the whole according to
the
terms and conditions and the price stipulated herein.
Page
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3.
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PURCHASE
PRICE
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The
present sale is made for and in consideration of the total amount of four
hundred fifty thousand dollars ($450,000.00), namely four thousand five
hundred
dollars ($4,500.00) per share of shares as well as the issuance of three
hundred
thousand (300,000) options of the Corporation in favour of Xxxxxxxxx and St-Onge
to purchase common shares in the share capital of the Purchaser, as well
as the
issuance of three million (3,000,000) common shares in the share capital
of the
Purchaser in favour of Xxxxxxxxx, the whole as set forth in the following
table:
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CONSIDERATION
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VENDOR
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Monetary
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Options
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Shares
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Xxxxxxxxx
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$
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301,500.00
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200,000
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3,000,000
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St-Onge
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$
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49,500.00
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100,000
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N/A
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Gestion
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$
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99,000.00
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N/A
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N/A
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Total
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$
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450,000.00
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300,000
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3,000,000
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4.
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TERMS
OF PAYMENT
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4.1
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Initial
Payment
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On
or
about June 23, 2005, the Vendor paid an amount of twenty-five thousand
dollars ($25,000.00) to the Purchaser as partial consideration for the
purchase
of the Shares, the whole as it appears from a copy of the certified cheque
in
the amount of twenty-five thousand dollars ($25,000.00), a copy of which
is
annexed hereto as Schedule 4.1.
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4.2
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Payment
of Balance
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The
Purchaser undertakes to pay the Vendor the balance of the purchase price
in the
amount of four hundred twenty-five thousand dollars ($425,000.00) according
to
the following schedule:
| 1. |
At
the latest at the expiry of the sixth (6th)
month after the date of execution hereof, an amout of two hundred
seventy-five thousand dollars
($275,000.00);
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| 2. |
At
the latest on the expiry of the eight (8th)
month following the date of execution hereof, the balance in
the amount of
one hundred fifty thousand dollars
($150,000.00);
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| 3. |
But,
in any event, at the latest on the date the Purchaser becomes
a public
corporation within the meaning of the securities laws in effect
in Quebec,
with its shares listed on a recognized Canadian or American
stock
exchange, such as the TSX.
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The
balance of the purchase price will not bear interest unless the Purchaser
fails
to reimburse the Vendor within the above-mentioned time limit. In this
case, the
full balance of the purchase price will bear interest at the rate of
ten percent
(10%) per annum calculated as of the date of execution hereof.
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The
Parties agree that the balance of the purchase price may be reimbursed
in
advance without penalty or interest and, with this end in view, the Purchaser
undertakes to pay sixty percent (60%) of any investment resulting from
the
debentures issued by the latter in favour of the Vendor, unless such
payments
could jeopardize the Purchaser’s passage from the status of a private
corporation to that of a public corporation whose shares are listed on
a
recognized Canadian or American stock exchange, such as the TSX, or if
they
could jeopardize its solvency.
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4.3
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Guarantee
with Respect to the Balance of the Purchase
Price
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As
long
as the balance of the purchase price has not been paid by the Purchaser,
the
share certificate number A-5 representing the Shares purchased by the
Purchaser will be held in guarantee with Deveau, Lavoie, Xxxxxxxxx, Xxxxxxx
& Associates (hereinafter referred to as: the “Depositary”) to guarantee the
payment of the balance of the purchase price and any interest, to be disposed
of
in the manner provided for in the Pledge Agreement annexed hereo as Schedule 4.3.
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5.
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REPRESENTATIONS
AND COVENANTS OF THE
PURCHASER
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The
Purchaser makes the following representations for the benefit of the
Vendor:
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5.1
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Nominee
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The
Purchaser is acting herein for its own interest and not as a representative,
an
agent, a nominee or in any other capacity for any other person whatsoever.
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5.2
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Qualification
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The
Purchaser has all of the powers required by law and has taken all the legal
measures required to be authorized to sign the present agreement and it
has the
power and authority to purchase the Shares.
The
Purchaser also has all of the powers required to exercise the rights granted
to
it and to honour the obligations that are incumbent upon it pursuant hereto.
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5.3
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Canadian
Residency
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The
Purchaser is a Canadian resident within the meaning of the Income
Tax Act
(Canada)
and the Taxation
Act
(Quebec).
Page
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5.4
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Status
of Assets
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The
Purchaser acknowledges having inspected all of the Assets of the Corporation,
having carried out all of the analysis of whatsoever nature regarding
the said
Assets and having completed the due diligence required for the purchase
of the
Assets, including, but without limiting the generality of the preceding,
any
analysis of the water that may be collected on the Corporation’s site located at
12,271, Xxxxx 00, Xxxxxxx Xxxxxxxxx, Xxx Xxxxxxxxx, Xxxxxx,
X0X 0X0.
With
this
end in view, the Purchaser acknowledges that the present sale is made without
any guarantees of whatsoever nature, and declares itself satisfied as to
the
status of the Assets, including without limiting the generality of the
preceding, the quality of the spring.
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5.5
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Reimbursement
of Xxxxxxxxx
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On
this
same date, the Corporation gives Xxxxxxxxx a cheque in the amount of
ninety-seven thousand five hundred dollars ($97,500.00) as reimbursement
for the
amounts paid by Xxxxxxxxx as down payment for the purchase of the
Assets.
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5.6
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Operations
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The
Purchaser hereby authorizes the Vendor to take all of the necessary measures
in
order that the water bottling operations may resume and, with this end
in view,
the Purchaser undertakes to reimburse the Vendor, on presentation of the
necessary vouchers, for all of the expenses incurred with respect to the
operation of the business of the Corporation, plus ten percent (10%), said
expenses to be reimbursed no later than six (6) months after the presentation
of
the required vouchers.
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5.7
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Equipement
Related to the Manufacture of Ice
Cubes
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The
Purchaser undertakes to allow the Vendor to undertake the necessary measures
to
install a machine for the manufacture of ice cubes. All of the expenses
relating
to the said installation will be subject to the conditions more fully described
in Section 5.6.
With
respect to the capital invested by the Vendor, it shall be reimbursed according
to terms to be negotiated subsequently between the parties.
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5.8
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Reimbursement
of the Property Tax Credit
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The
Purchaser undertakes to reimburse the Vendor the property tax credit in
the
amount of four thousand four hundred forty-three dollars and twenty-two
cents
($4,443.22) within the same time limit as the last instalment of the balance
of
the purchase price.
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6.
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REPRESENTATIONS
AND COVENANTS OF THE
VENDOR
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The
Vendor makes the following representations for the benefit of the
Purchaser:
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6.1
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Ownership
of Shares
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The
Vendor is the sole and unique holder with full ownership of the Shares
and has
the authority to sell them;
Page
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6.2
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Charges
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The
Shares are free of any charge whatsoever;
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6.3
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Covenant
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It
has
not undertaken, for and on behalf of the Corporation, any covenant nor
has it
incurred any obligations with respect to the Corporation, except as described
in
Schedule 6.3;
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6.4
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Debt
and Liabilities
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The
Corporation has no debt or other liabilities whatsoever, present or contingent,
except as described in Schedule 6.4;
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6.5
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New
Corporation
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The
Corporation has been created recently and has carried out, as of the date
hereof, summary activities in view of relaunching the water bottling
business;
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6.6
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Share
Capital
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There
are
no options, warrants, rights, contracts, calls for payment, covenants or
agreements of any nature whatsoever that may affect the title of the Shares
that
are the subject of this sale and/or with respect to the authorized share
capital
of the Corporation not yet issued;
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6.7
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Execution
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That
it
will sign all documents required to give effect to the provisions hereof.
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6.8
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Return
of Documents
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That
it
will return all of the documents, files and minute books relating to the
Corporation as soon as the balance of the purchase price will have been
paid.
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7.
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ADMINISTRATION
OF THE CORPORATION’S
AFFAIRS
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7.1
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Composition
of the Board of Directors of the
Corporation
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The
Purchaser undertakes, as long as:
(1)
the
balance of the purchase price has not been repaid in full;
(2)
the
expenses have not been fully reimbursed according to Sections 5.6 and
5.7;
Page
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(3)
it
is not
a public corporation whose shares are listed on a recognized Canadian
or
American stock exchange, such as the TSX:
(4)
to
ensure
that the following persons or any person referred to by one of the following
persons, be elected and re-elected as directors of the
Corporation:
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·
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Michel
L’Italien;
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·
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Xxxx
Xxxxxxxxx;
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·
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Bruno
St-Onge;
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·
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Xxxx-Xxxx
Xxxxxxxxx;
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·
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Xxxxxx
Xxxxxxxxx.
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7.2
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Administrative
Decisions
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As
long
as the conditions set forth in sub-sections 7.1(1), (2) and (3) are not
met, all of the decisions relating to the administration of the Corporation’s
affairs will be made by a majority of the directors, each of them having
one
vote. The chairman of the board of directors will not have a deciding vote.
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7.3
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Financial
Statements
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The
parties shall see to it that a follow-up of operations is carried out on
a
monthly basis by producing appropriate internal balance sheets, as well
as
annual financial statements when required.
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8.
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GENERAL
PROVISIONS AND
INTERPRETATION
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8.1
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Schedules
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The
preamble and the schedules, if any, are an integral part hereof. In the
event of
a conflict between a schedule and the provisions hereof, the provisions
hereof
shall have priority.
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8.2
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Heirs,
Successors and Assigns
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This
agreement binds the parties hereto, their heirs, legatees by particular
title,
estate liquidators, curators, tutors, advisors for persons of full age,
administrators, trustees in bankruptcy and receivers as well as all their
legal
representatives or assigns.
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8.3
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Amendment
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This
agreement can only amended or supplemented by a written instrument agreed
upon
by all the parties hereto.
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8.4
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Severability
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Each
of
the sections or paragraphs hereof are interpreted separately and the invalidity
of a section or a paragraph shall not result in the invalidity of the entire
agreement.
Page
8 of
11
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8.5
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Cumulative
Rights
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All
the
rights mentioned in this agreement are cumulative and not alternative.
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8.6
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Non-waiver
of Rights
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The
fact
that a party hereto has not demanded the full execution of any of the covenants
agreed upon herein or has not always exercised any one of its rights granted
therein shall not be deemed as a future waiver of such right or the execution
of
such covenant. Unless stipulated otherwise, any waiver by any of the parties
hereto to any of its rights shall only be effective when established in
writing
and any such waiver shall only apply to the rights and circumstances expressly
mentioned in the said waiver.
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8.7
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Time
is of the Essence
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The
parties declare that the time limits established herein are final and the
calculation thereof will be made in accordance with the provisions of the
Code
of Civil Procedure of Quebec
in
effect at the date of execution hereof.
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8.8
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Headings
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The
headings are only inserted for reference and convenience purposes; they
shall in
no way served for the interpretation of the provisions hereof.
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8.9
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Priority
of Agreements
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The
parties acknowledge that the provisions hereof constitute a complete, full
and
faithful representation of the undertakings entered into between the parties
and
they formally waive their right to any and all discussions and negotiations
that
preceded the execution, the present agreement superseding any previous
agreement
having the same purpose.
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8.10
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Assignment
of Rights
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None
of
the parties may assign its rights pursuant to this agreement, save and
except if
all of the parties hereto agree to such assignment in writing.
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8.11
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Governing
Law
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This
agreement is governed by the laws in effect in Quebec and in Canada when
they
are applicable therein.
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8.12
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Originals
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All
of
the signed and initialed copies hereof constitute originals of the one
and only
agreement. However, the copies that are only signed constitute copies.
Page
9 of
11
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8.13
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Mediation
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Before
going to arbitration, the parties undertake to submit any dispute between
them
regarding the interpretation or application of the provisions contained
herein
to a mediator, and to participate in good faith in the mediation procedure.
The
mediator will be chosen by mutual agreement between the parties and if
they fail
to agree upon the choice of a mediator, the parties agree to settle the
dispute
by arbitration.
Moreover,
they agree that all of the mediation initiatives and sessions will be carried
out under the seal of confidentiality and subject to all of their rights
and
recourses. Nothing that is written or said during such initiatives or sessions
will be admissible as evidence in a legal procedure or otherwise.
Any
dispute or litigation settled by mediation will be submitted to the courts
for
confirmation.
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8.14
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Arbitration
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The
parties hereto wish that any dispute that may arise in the interpretation
or
application hereof, except in the case where a specific provision provides
for
an alternative means, and subject to recourses regarding injunction, be
submitted to arbitration according to the provisions of Articles 2638 and
following of the Civil
Code of Quebec
and
Articles 940 and following of the Code
of Civil Procecure of Quebec,
to the
exclusion of the courts of law.
However,
if all of the parties hereto agree, one sole arbitrator will be fully authorized
to act with respect to such procedures.
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9.
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INTERVENTIONS
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The
Interveners intervene hereto so as to be informed of the provisions stipulated
herein and to undertake to carry out such provisions and to be held jointly
liable for all of the obligations of the Purchaser as stipulated herein
in
favour of the Vendor. With this end in view, the Interveners waive the
benefit
of discussion and division.
Page
10
of 11
IN
WITNESS WHEREOF, THE PARTIES HAVE SIGNED AND INITIALED ONE (1) COPY IN
LAVAL, ON
THIS 28TH
DAY OF THE MONTH OF JULY 2005.
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THE
PURCHASER
WATER
BANK OF AMERICA
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By: (signed)
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Xxxxxx X. Xxxxxxxxx |
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THE
CORPORATION
4287762 CANADA INC. |
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By: (signed)
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Xxxx
Xxxxxxxxx
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THE
VENDOR
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(signed)
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(signed) | ||
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Xxxx Xxxxxxxxx |
Bruno St-Onge |
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THE
VENDOR
GESTION
BRUNO ST-ONGE INC.
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By: (signed)
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Bruno St-Onge |
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THE
INTERVENERS
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(signed)
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Xxxxxx X. Xxxxxxxxx |
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(signed)
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Xxxx-Xxxx Xxxxxxxxx |
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(signed)
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Xxxxxx Xxxxxxxxx |
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(signed)
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Xxxxxx Xxxxxxxxx |
Page
11
of 11
EXHIBIT
10.13 ANNEXE
TRANSLATION
FOR CONVENIENCE ONLY - NOT LEGALLY BINDING
TRANSLATION
AGREEMENT
CONCERNING THE PAYMENT OF A COMMISSION
TO
XXXX
XXXXXXXXX
AND
TRANSACTION/RECEIPT,
RELEASE & DISCHARGE
CONSIDERING
the
Promise to Sell which intervened between Water Bank of America Inc. (hereinafter
designed “WBOA”) and Xx. Xxxxx St-Onge, copy of which is annexed to the present
(hereinafter the “Promise to Sell”);
CONSIDERING
that
Xxxx
Xxxxxxxxx claims to be entitled to a sum of money from Water Bank of America
Inc. in connection with such Promise to Sell (hereinafter designated the
“Commission”), and that WBOA agrees to pay to the former a one time flat sum to
this effect;
AND
THE PARTIES HEREBY AGREE AS FOLLOWS:
| 1. |
Preamble
|
| 1.1 |
The
preamble is an integral part hereof as if recited at
length.
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| 2. |
Commission
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| 2.1 |
Considering
the Promise to Sell, the parties covenant that the Commission payable
to
Xx. Xxxx Xxxxxxxxx shall be $100,000.00 payable as
follows:
|
|
•
|
An
amount of $50,000.00 concurrently with the signature of the present,
which
Xx. Xxxx Xxxxxxxxx hereby acknowledges having received and gives quittance
to such extent (hereinafter designated the “First
Instalment”);
|
|
•
|
An
amount of $50,000.00 when WBOA shall be a public company listed on
a
recognized Canadian or American Stock Exchange such as the TSX or,
at the
latest, by September 18, 2006 (hereinafter designated the “Second
Instalment”).
|
1
| 3. |
Quittance
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| 3.1 |
Save
and except for the Second Instalment, and in consideration of the
payment
of the First Instalment, Xxxx Xxxxxxxxx hereby gives complete, final, and
definitive release, quittance and discharge from any claim, of any
nature
whatsoever, which he has, has had, or which he may have against WBOA,
its
directors, officers, employees, shareholders, representatives,
mandataries, and/or its management;
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| 4. |
General
disposition
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| 4.1 |
The
present agreement shall be subject to the applicable laws in the
Province
of Quebec;
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| 4.2 |
The
present agreement constitutes a transaction pursuant to and in accordance
with Article 2631 of the Civil Code of
Quebec.
|
SIGNED
at
Montreal, January 27, 2006
|
(SGD)
|
||
|
Xxxx XXXXXXXXX |
||
| WATER BANK OF AMERICA INC. | ||
|
(SGD)
|
||
|
Per: Xxxx-Xxxx
Xxxxxxxxx
Duly authorized, as he so declares |
||
TO
WHICH INTERVENED:
| GESTION BRUNO ST-ONGE INC. | ||
| |
|
(SGD) |
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per: Bruno St-Onge Duly authorized, as he so declares |
||
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(SGD)
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Bruno
ST-ONGE
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||
2
EXHIBIT
10.13 ANNEXE
TRANSLATION
FOR CONVENIENCE ONLY - NOT LEGALLY BINDING
[TRANSLATION]
|
PLEDGE
AGREEMENT
|
|
BETWEEN:
|
WATER
BANK OF AMERICA INC.,
a
corporation legally incorporated pursuant to the Canada
Business Corporations Act,
with its registered office at 1000, de la Gauchetière West,
Suite 2400, Xxxxxxxx, Xxxxxx X0X 0X0, acting herein and
represented by Xxxxxx X. Xxxxxxxxx, duly authorized by a resolution
of its sole director adopted on July 28,
2005;
|
(hereinafter
referred to as: the “Grantor”)
|
AND:
|
XXXX
XXXXXXXXX,
domiciled and residing at 0000, xxx Xxxx, Xxxxxxxx, Xxxxxxxx xx
Xxxxxx, Xxxxxx,
X0X 0X0;
|
(hereinafter
referred to as: “Xxxxxxxxx”)
|
AND:
|
GESTION
BRUNO ST-ONGE INC.,
a
body politic duly incorporated pursuant to Part 1A of the
Companies
Act (Quebec),
with its registered office at 2400, boul. Des Chenaux,
Trois-Rivières, Quebec, Canada, G8Z 1A1, acting herein and
represented by Bruno St-Onge, duly authorized by a resolution of
its sole
director adopted on July 28,
2005;
|
(hereinafter
referred to as: “Gestion”)
(Xxxxxxxxx
and Gestion hereinafter collectively referred to as: the “Creditor”).
|
AND:
|
4287762
CANADA INC.,
a
corporation legally incorporated pursuant to the Canada
Business Corporations Act,
with its registered office at 12,271 Xxxxx 00, Xxxxxxx
Xxxxxxxxx, Xxx Xxxxxxxxx, Xxxxxx X0X 0X0, acting herein and
represented by Xxxx Xxxxxxxxx, duly authorized by a resolution adopted on
July 28, 2005;
|
(hereinafter
referred to as: the “Corporation”)
Page
1 of
9
|
AND:
|
DEVEAU,
LAVOIE, XXXXXXXXX, LALANDE & ASSOCIATES, LLC,
a
law firm having its principal place of business at 0000, xxxx.
Xxxxxx-Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx of Xxxxxx, X0X 0X0,
duly represented by Me Xxxxxx Xxxxxxxxx, lawyer and tax
consultant;
|
(hereinafter
referred to as: the “Depositary”)
WHEREAS
pursuant
to an Agreement of Sale of Shares entered into on the same date (hereinafter
referred to as: the “Agreement”),
the
Grantor acquired from the Creditor all of the Corporation’s issued and
outstanding shares, which are described in greater detail as
follows:
|
Shareholders
|
Number
and Class of Shares
|
Certificate
|
||
|
Grantor
|
100
Class “A” Shares
|
A-5
|
(hereinafter
referred to as: the “Shares”);
WHEREAS
following
the sale transaction, the Grantor owes an amount of five hundred and twenty-six
thousand nine hundred and forty-three dollars ($426,943.00) to the Creditor,
the
whole as it appears from the following table:
|
Balance
of purchase price
|
$
|
425,000.00
|
||
|
Reimbursement
of tax credits
|
$
|
4,443.22
|
||
|
Total
|
$
|
429,433.22
|
and
the
Creditor has demanded that the Shares be handed over to the Depositary as a
guarantee for the balance of the purchase price and other amounts
owed;
WHEREAS
the
parties have agreed to record in writing the terms and conditions governing
the
exercise of the rights of the Creditor in the above-mentioned
context;
AS
A CONSEQUENCE OF THE PRECEDING, THE PARTIES AGREE AS
FOLLOWS:
| 1. |
RECITALS
AND SCHEDULES
|
The
preamble and the schedules, if any, are an integral part hereof.
Page
2 of
9
| 2. |
ESTABLISHMENT
OF PLEDGE
|
The
Grantor grants a hypothec in favour of the Creditor with respect to the Shares
held by the Grantor in the share capital of the Corporation for an amount equal
to the balance of the purchase price, the whole plus twenty-five percent (25%).
Thus, concurrently with the execution hereof, the Grantor hands over the Shares
duly endorsed to the Creditor who will hold them through the intermediary of
the
Depositary, such Shares being pledged as a guarantee of the payment to the
Creditor of the sums owed to it pursuant to the Agreement.
| 3. |
REPRESENTATIONS
OF THE GRANTOR
|
The
Grantor makes the following representations:
It
is the
true registered owner of the Shares;
It
has
not granted any options or any other rights whatsoever to anyone regarding
the
purchase of the Shares;
The
Shares are free of any pledge, hypothec, security interest or other charge
or
appropriation whatsoever.
| 4. |
OBLIGATIONS
OF THE GRANTOR
|
The
Grantor herewith hands over in negotiable form, that is to say with a blank
endorsement in favour of the Depositary, the original share certificate A-5
representing the Shares of the Corporation secured by hypothec pursuant to
Section 1 in order that it may be disposed of according to the terms and
conditions hereof, said certificate being annexed hereto as Schedule 4.
If,
for
any reason whatsoever, the Grantor receives, in replacement thereof or in
addition thereto, any new share certificates of the Corporation, it agrees
to
hand over the same to the Depositary within five (5) days of its receipt,
without the latter being required to make any requests to that effect.
The
Shares secured by the hypothec shall only be delivered to the Creditor if the
Grantor is in default pursuant hereto or pursuant to the Agreement.
| 5. |
EXERCISE
OF RIGHTS ATTACHED TO THE
SHARES
|
Subject
to the provisions hereof, the Grantor shall, during the entire period of the
deposit, have the benefit of all of the rights conferred by the Shares,
including the right to receive any dividends declared by the Corporation and
to
elect the board of directors of the Corporation.
However,
the Grantor undertakes to exercise all of the rights attached to the Shares
so
as to comply with the covenants undertaken hereunder and so as not to reduce
the
value of the security relating thereto.
Page
3 of
9
| 6. |
DEFAULT
|
The
Grantor will be in default, giving rise to the provisions hereof, upon
occurrence of the following events:
| (1) |
The
Grantor fails to honour or satisfy any of the obligations undertaken
with
respect to the Creditor pursuant to the Agreement or pursuant
hereto;
|
| (2) |
In
the event of any new issuance of Shares in the share capital of the
Corporation not authorized by the
Creditor;
|
| (3) |
In
the event of any transfer, issuance, sale, conveyance or other types
of
assignment of all or a portion of the Shares of the Corporation not
authorized by the Creditor notwithstanding the preceding, the Corporation
may at all times pay dividends to the Grantor provided that the total
amount be used to pay the balance of the purchase price owed pursuant
to
the Agreement;
|
| (4) |
In
the event of any sale, in whole or in part, of the assets of the
Corporation other than in the ordinary course of business of the
Corporation, not authorized by the
Creditor;
|
| (5) |
In
the event of the declaration of dividends, the purchase or the re-purchase
of Shares of the Corporation as well as the payment of any amount
in cash
to shareholders, directors, executive officers or officers of the
Corporation or of the Grantor not authorized by the
Creditor;
|
| (6) |
In
the event of the merger, liquidation, dissolution or bankruptcy,
voluntary
or forced, of the Corporation or the Grantor not authorized by the
Creditor;
|
| (7) |
In
the event of any action by the Grantor or by any other person not
dealing
at arm’s length with the Grantor resulting in the reduction of the value
of the assets of the Corporation or of the value of the
Corporation;
|
| (8) |
If,
on September 18, 2006, the Grantor is not a public corporation whose
Shares are listed on a recognized Canadian or American stock exchange,
such as the TSX.
|
| 7. |
OBLIGATION
TO SURRENDER THE SHARES
|
If
an
event of default occurs and if the Grantor does not cure such default or see
to
it that it is cured within fifteen (15) days after receipt of a written notice
from the Creditor stating the default by the Grantor, the Grantor undertakes
to
surrender the Shares in order that the Creditor may take them in payment or
may
itself sell them or have them sold by court order. At the time of the surrender
of the Shares, the Grantor also undertakes to waive any amount that may be
owed
to the Grantor by the Corporation and to grant to the Corporation and to the
Creditor full, final and general acquittance.
In
the
event of the surrender, the Grantor undertakes to sign any document required
by
the Creditor to obtain the resignation of the current directors, to grant
acquittance to the Creditor, to complete and validate the voluntary surrender
and to waive to request the reimbursement of the amounts paid to the Creditor
or
the Corporation, ackowledging the Creditor’s right to keep such amounts as
liquidated damages, without however affecting the other rights and recourses
of
the Creditor.
Page
4 of
9
In
addition to the covenants described in greater detail in the preceding
paragraphs, if an event of default occurs and if the Grantor does not cure
such
default or does not see to it that such default is cured within fifteen (15)
days after receipt of a notice from the Creditor stating the default by the
Grantor, the latter shall undertake as follows:
| (1) |
All
the equipment relating to the production of ice cubes shall remain
in
New Brunswick;
|
| (2) |
Allow
the Creditor to manufacture as many ice cubes as it wishes provided
that
they may only be sold to the Grantor.
|
Notwithstanding
the preceding, the Creditor may sell to any person other than the Grantor if
the
Grantor’s orders are not sufficient to attain a volume of sales sufficient to
ensure the profitability of the Creditor’s ice cube business.
| 8. |
DELIVERY
OF THE CERTIFICATE TO THE
DEPOSITARY
|
The
Depositary acknowledges having received share certificate A-5 of the Corporation
representing the Shares contemplated herein. Subject to any provision to the
contrary, the said certificate shall remain registered in the name of the
Grantor.
As
a
result of the execution hereof, the Depositary acknowledges having received,
for
and on behalf of the Creditor, the Shares encumbered as a result of the pledge
granted by the Grantor and the written evidence of the movable hypothec in
favour of the Creditor, as required by Article 2705 of the Civil
Code of Quebec.
| 9. |
CUSTODY
OF THE CERTIFICATES
|
Subject
to any provisions hereof to the contrary and until such time as an event of
default occurs, the Depositary shall, as long as the present pledge is in
effect, have custody of the certificate or certificates representing the Shares
and shall ensure that any transaction with respect to these Shares and requiring
an intervention by it be carried out in accordance with the provisions hereof,
by keeping the certificate or certificates in its possession until the full
satisfaction of the obligations of the Grantor, either pursuant to the Agreement
or pursuant hereto, unless the Depositary has obtained the prior written consent
of the Creditor to the contrary effect.
Page
5 of
9
| 10. |
DUTIES
OF THE DEPOSITARY
|
It
is
understood between the Grantor and the Creditor that the duties of the
Depositary shall be as follows:
Upon
receipt of a written authorization from the Creditor or a copy of a discharge
signed by the Creditor, the Depositary shall hand over to the Grantor the share
certificate or certificates in its possession as well as any other document
that
may be in its possession and that was handed over pursuant hereto;
If
the
Grantor does not obtain from the Creditor the above-mentioned discharge,
notwithstanding that the Grantor has satisfied all of its obligations pursuant
to the Agreement, the Grantor may deliver to the Depositary a sworn statement
certifying the full payment of the amounts due to the Creditor in capital and
interest, as the case may be. Upon receipt of such statement, the Depositary
shall send a copy thereof to the Creditor who shall have a period of fifteen
(15) business days, from the date of receipt of said statement, to contest
the
delivery of the Shares pledged. If the Creditor does not make any adverse claim
within the prescribed period, the Depositary shall then proceed with the
delivery of the Shares to the Grantor without any other notice or
formality;
However,
if within fifteen (15) business days the Depositary receives a detailed notice
of an adverse claim from the Creditor, it shall then keep the Shares in its
possession until such time as the parties have settled their dispute amicably
or
following a final decision rendered by an arbitrator or a competent court,
as
the case may be;
In
the
event of a default by the Grantor to fulfil its obligations, the Depositary,
after the Creditor has given the Grantor the necessary notices, either pursuant
to the Agreement or pursuant to the Civil
Code of Quebec,
with
respect to remedies regarding hypothecs or regarding the provisions of any
agreement between shareholders in effect between the shareholders of the
Corporation, may complete, for and on behalf of the Grantor, all of the
documents, acts, certificates and other written instruments required or useful
for the fulfilment or performance of the covenants undertaken by the Grantor
pursuant hereto, including the transfer of the Shares;
In
the
event of litigation between the Grantor and the Creditor regarding their
respective rights pursuant hereto or pursuant to the Agreement, the Depositary
shall be relieved of any responsibility resulting from the custody of the
certificate or certificates representing the Shares until such time as the
Grantor and the Creditor have settled their dispute in writing or until such
time as a final decision is rendered by an arbitrator or a competent court
and
communicated in writing to the Depositary;
Subject
to any express provision to the contrary, it is understood and agreed that
the
responsibility of the Depositary is limited to the use, as provided herein,
of
the certificate or certificates representing the Shares and of any other
document that it may have in its possession pursuant hereto or pursuant to
the
Agreement.
The
Depositary is in no way bound to institute legal proceedings that are incumbent
for any reason relating to its duties pursuant hereto;
The
Depositary shall only be held liable for its own actions, negligence and
defaults. It shall not be held liable in the event that it refuses to act
following the advice of an independent legal advisor;
Page
6 of
9
To
ensure
the publication, at the expense of the Grantor, of the present agreement in
the
Register of personal and movable real rights.
| 11. |
PROVISIONS
REGARDING THE DEPOSITARY
|
The
Depositary is entitled to resign from its duties at all times and without being
required to give grounds therefore. This measure shall be carried out by means
of a prior notice to this effect of at least fifteen (15) business days,
communicated to the Creditor and the Grantor;
The
Creditor and the Grantor may jointly remove the Depositary from its duties
by
means of a prior written notice to this effect of at least fifteen (15) business
days;
In
the
event of the resignation or removal of the Depositary, the Grantor and the
Creditor shall, before the effective date of the resignation or removal, jointly
name a new depositary and inform the resigning or removed Depositary of this
new
appointment. After the payment of any fees that may still be owed to the
Depositary, the latter shall hand over to its successor the share certificates
and any other documents that may be in its possession and belonging to either
of
the parties hereto and that have been handed over to the Depositary with respect
to its duties;
Following
the remittance of the share certificates and any other documents in accordance
with the preceding paragraph, the resigning or removed Depositary shall no
longer be liable for any other responsibility pursuant hereto;
If
the
Depositary is called upon to intervene or to act in accordance with the terms
and conditions hereof, it shall be entitled to a remuneration calculated based
on its professional fees in effect at the time of the intervention, as well
as
the reimbursement of expenses and disbursements that it may have incurred with
respect thereto, including fees that it may be called upon to pay, when it
deemed it appropriate, in order to obtain any legal opinion regarding the
fulfilment of the obligations that are incumbent upon it pursuant hereto, as
well as for any legal proceedings that may be instituted against it pursuant
hereto, with the exception however of any civil or criminal proceedings
following which the Depositary is found guilty of theft, fraud, omission or
gross negligence. Such remuneration and fees shall be payable by the party
which
requested the intervention by the Depositary. In all other cases, the
remuneration shall be borne by the Grantor;
The
Grantor expressly acknowledges that, in the event of a misunderstanding or
a
conflict between the Grantor and the Creditor, the Depositary may continue
to
represent and act on behalf of the Creditor, in particular, but without limiting
the generality of the preceding, with respect to the transactions that are
described in greater detail herein and in the Agreement.
| 12. |
OBLIGATIONS
OF THE CREDITOR
|
The
Creditor undertakes and is bound, upon having received from the Grantor all
of
the amounts mentioned in the Agreement, including the interests, as the case
may
be, to sign a discharge with respect to the present hypothec and to facilitate
the delivery of the Shares by the Depositary to the Grantor;
Page
7 of
9
As
long
as the Grantor complies with the terms and conditions hereof and of the
Agreement, the Creditor undertakes not to disturb the peaceful enjoyment of
the
rights relating to the Shares belonging to the Grantor;
The
Grantor acknowledges that the ownership, the dividends and the benefits relating
to the Shares, including the voting rights relating to the Shares, as the case
may be, belong to the Grantor which is entitled to benefit therefrom and dispose
thereof as long as it is not in default pursuant hereto or pursuant to the
Agreement;
The
hypothec created hereby shall be published at the Register of personal and
movable real rights at the expense of the Grantor.
| 13. |
GENERAL
PROVISIONS
|
The
final
and constructive provisions of the Agreement apply hereto mutatis
mutandis.
IN
WITNESS WHEREOF, THE PARTIES SIGNED IN LAVAL, ON THE 28TH
DAY OF
JULY 2005
|
The
Grantor:
|
The
Creditor:
|
|
|
Water
Bank of America
|
0000000
Canada Inc.
|
|
|
By: (signed)
|
By: (signed)
|
|
|
Xxxxxx
X. Xxxxxxxxx
|
Xxxx
Xxxxxxxxx
|
|
|
|
|
|
|
The
Creditor:
|
||
|
(signed)
|
||
|
Xxxx
Xxxxxxxxx
|
||
|
Gestion
Bruno St-Onge Inc.
|
||
|
By: (signed)
|
||
|
Bruno
St-Onge
|
||
|
|
||
|
The
Depositary:
|
||
|
Deveau,
Lavoie, Bourgeaois, Lalande & Associates
|
||
|
By: (signed)
|
||
|
Me
Xxxxxx Xxxxxxxxx
|
Page
8 of
9
SCHEDULE
4
SHARE
CERTIFICATE NUMBER A-5
Page
9 of
9
EXHIBIT
10.13 ANNEXE
TRANSLATION
FOR CONVENIENCE ONLY - NOT LEGALLY BINDING
[TRANSLATION]
|
ACQUITTANCE
AND CANCELLATION OF PLEDGE AGREEMENT
ENTERED INTO ON JULY 28, 2005 |
WHEREAS
Xxxx
Xxxxxxxxx is a party to an Agreement of Sale of Shares entered into on
July 28, 2005 (hereinafter referred to as the “Agreement of Sale of
Shares”) whereby Water Bank of America Inc. (hereinafter referred to as “WBOA”)
acquired all of the issued and outstanding shares in the share capital of
4287762 Canada inc. (hereinafter referred to as the “Corporation”);
WHEREAS
Xxxx
Xxxxxxxxx hereby acknowledges that WBOA, as of the date hereof, paid in full
the
purchase price provided for in Section 3 of the Agreement of Sale of
Shares, as well as any amount owed to WBOA pursuant to the Pledge
Agreement;
WHEREAS
Xxxx
Xxxxxxxxx is also a party to a Pledge Agreement entered into on July 28,
2005 (hereinafter referred to as the “Pledge Agreement”) whereby the share
certificate bearing number A-5 representing the shares acquired by WBOA pursuant
to the Agreement of Sale of Shares, was deposited with the law firm of Deveau,
Lavoie, Xxxxxxxxx, Xxxxxxx and Associates, LLC, which firm shall act as
depositary pursuant to the Pledge Agreement;
WHEREAS
the
Pledge Agreement provides, in Section 6 thereof, multiple events of
default, including the event whereby WBOA would be in default if, on
September 18, 2006, it was not a public corporation whose shares were
listed on a recognized Canadian or American stock exchange, such as the
TSX;
THE
PARTIES AGREE AS FOLLOWS:
| 1. |
Preamble
|
| 1.1 |
The
preamble is an integral part hereof as if it had been recited in
full.
|
| 2. |
Quittance
|
| 2.1 |
Xxxx
Xxxxxxxxx hereby acknowledges having received on this same day an amount
of $175,816.69 by certified cheque bearing #5301, as well as a certificate
of shares totalling 3,000,000 shares in the share capital of WBOA,
as well
as an option to purchase 200,000 common shares of WBOA (and this
notwithstanding the clerical error contained in the Agreement of
Sale of
Shares stipulating that such options relate to the shares of the
Corporation due to the fact that all of the parties agree that the
options
relate to shares of WBOA), the whole according to the purchase price
provided for in Section 3 of the Agreement of Sale of
Shares;
|
Page
1 of
3
| 2.2 |
Xxxx
Xxxxxxxxx acknowledges that an additional amount of $103,660.27
(hereinafter referred to as the “Debt”) is also owed to him by WBOA but
that he in turn owes said amount to Gestion Bruno St-Onge Inc. Considering
the promise to sell annexed hereto as Schedule A, it is agreed that
WBOA hereby subrogate Xxxx Xxxxxxxxx with respect to the debt, which
subrogation is hereby accepted by Gestion Bruno St-Onge Inc. Considering
the foregoing, Gestion Bruno St-Onge Inc. gives full, final and definitive
acquittance of any claim for any reason whatsoever that it has had,
presently has or may have against Xxxx Xxxxxxxxx with respect to the
debt;
|
| 2.3 |
As
a result of the preceding, Xxxx Xxxxxxxxx hereby gives full, final and
definitive acquittance to WBOA with respect to any claim which may
arise,
directy or indirectly, from the Agreement of Sale of Shares and/or
the
Pledge Agreement and waives any right, action, right of action, relief
and/or other proceedings against WBOA with respect thereto.
|
| 3. |
Cancellation
of the Pledge Agreement
|
| 3.1 |
Considering
the foregoing, Xxxx Xxxxxxxxx grants WBOA a discharge regarding any event
of default as provided for in the Pledge Agreement and hereby declare
agreeing to the cancellation of the Pledge
Agreement.
|
| 4. |
Interventions
|
| 4.1 |
WBOA,
Xx. Xxxxx St-Onge and Gestion Bruno St-Onge Inc. intervene herein to
confirm that they agree to cancel the Pledge
Agreement;
|
| 4.2 |
Accordingly,
the parties gave Deveau, Lavoie, Xxxxxxxxx, Xxxxxxx and Associates,
LLP
irrevocable instructions, the depositary with respect to the Pledge
Agreement, to hand over the share certificate bearing number A-5
to WBOA,
as well as the Corporation’s minute books and any documents relating
thereto;
|
| 4.3 |
The
law firm of Deveau, Lavoie, Xxxxxxxxx, Lalande and Associates, LLP,
depositary pursuant to the Pledge Agreement, intervenes herein to
confirm
that it accepts the instructions stipulated
hereinabove.
|
| 5. |
Cancellation
|
| 5.1 |
The
parties hereto acknowledge and declare that WBOA is in no way in
default
with respect to the terms of the Agreement of Sales of Shares and
the
Pledge Agreement;
|
| 5.2 |
Considering
the foregoing, the parties declare the Pledge Agreement null and
void on
the basis of the execution hereof.
|
Page
2 of
3
| 6. |
Governing
Law
|
| 6.1 |
This
agreement is governed by the laws applicable in the Province of Quebec.
|
SIGNED
in
Montreal on January 27, 2006
| (signed) | ||
|
Xxxx
XXXXXXXXX
|
||
| GESTION BRUNO ST-ONGE INC. | ||
| (signed) | ||
|
By: Bruno
ST-ONGE
duly authorized as declared by him
|
||
|
(signed)
|
||
|
Bruno
ST-XXXX
|
||
| XXXXXX,
LAVOIE,
BOURGEOIS, LALANDE AND ASSOCIATES, LLP, |
||
|
(signed)
|
||
|
By: Me
Xxxxx Xxxxxxxxx
duly authorized as declared by
him
|
||
|
(signed)
|
||
|
By: Xxxxxxx
Xxxxxxx
duly authorized as declared by
him
|
||
| WATER BANK OF AMERICA INC. | ||
|
(signed)
|
||
|
By: Xxxx-Xxxx
Xxxxxxxxx
duly authorized as declared by
him
|
||
Page
3 of
3
EXHIBIT
10.13 ANNEXE
TRANSLATION
FOR CONVENIENCE ONLY - NOT LEGALLY BINDING
[TRANSLATION]
|
TRANSACTION
AND ACQUITTANCE RECEIPT
|
WHEREAS
Xxxx
Xxxxxxxxx, director of 4287762 Canada Inc., alleges that the latter owes him
certain amounts of money with respect to expenses incurred and/or services
rendered;
WHEREAS
Xxxx
Xxxxxxxxx acknowledges never having been employed by 4287762 Canada Inc. and
consequently no salary, bonuses, commissions or other form of remuneration
are
owed to him;
WHEREAS
4287762
Canada Inc. and Xxxx Xxxxxxxxx wish to settle hereby any past, present or future
litigation;
THE
PARTIES AGREE AS FOLLOWS:
| 1. |
Preamble
|
| 1.1 |
The
preamble constitutes an integral part hereof as if it had been
recited in
full.
|
| 2. |
Settlement
|
| 2.1 |
In
consideration of the payment of an amount of $25,000, which Xxxx
Xxxxxxxxx
acknowledges having received as of the date hereof, Xxxx Xxxxxxxxx hereby
gives 4287762 Canada Inc., its directors, officers, executive officers,
employees, shareholders, representatives and/or mandataries full,
final
and definitive acquittance of any claim of any nature whatsoever
that he
may have had, may presently have or could have against 4287762
Canada
Inc.;
|
| 2.2 |
In
consideration of the payment of the amount of $25,000, Xxxx Xxxxxxxxx
waives any right, right of action or claim of any nature whatsoever
with
respect to the preceding, and declares that all of the rights and
obligations that may have arisen pursuant to any relationship that
he
entertained with 4287762 Canada Inc. are henceforth extinguished
and non
claimable.
|
| 3. |
General
Provisions
|
| 3.1 |
This
agreement is governed by the laws applicable in the Province of
Quebec.
|
| 3.2 |
This
agreement is a transaction within the meaning of article 2631 of the
Civil
Code of Quebec.
|
Page
1 of
2
SIGNED
in
Montreal on January 27, 2006
|
(signed)
|
||
|
Xxxx
XXXXXXXXX
|
||
|
4287762
CANADA INC.
|
||
|
(signed)
|
||
|
By: Bruno
ST-ONGE
duly authorized as declared by
him
|
||
|
(signed)
|
||
|
By: Xxxx
XXXXXXXXX
duly authorized as declared
by
him
|
||
|
(signed)
|
||
|
By: Xxxx-Xxxx
XXXXXXXXX
duly authorized
as declared
by
him
|
||
Page 2
of 2
