Exhibit 10.1
DATED DECEMBER 3, 1998
(1) TOUCAN MINING LIMITED
- and -
(2) TOUCAN GOLD CORPORATION INC
- and -
(3) MINMET PLC
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AGREEMENT
for the sale and purchase of the whole of
the issued share capital of Anagram Limited
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XXXXXXXX ORSMBY XXXXXXXX
XXXXXXXX HILL HOUSE
6 XXXXXXXX XXXXXXX XXXX
XXXXXX XX0X 0XX
TEL: + 00 000 000 0000
FAX: + 00 000 000 0000
1
INDEX
Clause No. Heading Page No.
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1. Interpretation 1
2. Pre-Condition 3
3. Sale and Purchase 3
4. Consideration 3
5. Completion 4
6. Warranties 4
7. Costs 4
8. Further Assurance 4
9. Notices 4
10. Law 5
11. Counterparts 5
SCHEDULE I The Option Agreement 6
SCHEDULE II The Supplemental Agreement 7
2
THIS AGREEMENT is made the 3rd day of December, 1998.
BETWEEN:
(1) TOUCAN MINING LIMITED, a private limited company incorporated under the
laws of the Isle of Man, whose registered office is at Celtic House,
Douglas, Isle of Man (the "Vendor"); and
(2) TOUCAN GOLD CORPORATION INC., a public limited company incorporated
under the laws of the State of Delaware, and whose Principal Executive
Offices are situate at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, XXX (the "Parent");
(3) MINMET PLC, a public limited company incorporated under the laws of
Ireland and whose registered office is at 00 Xxxxxxxxxxx Xxxxxx, Xxxxxx
0 (the "Purchaser").
WHEREAS:
(A) Anagram Limited (the "Company") is a private company limited by
shares incorporated under the laws of the Isle of Man and whose registered
office is at Celtic House, Victoria Street, Douglas, Isle of Man.
(B) The Vendor is the legal and beneficial owner of the entire issued
share capital of the Company, (hereafter referred to as the "Sale Shares").
(C) The Vendor has agreed to sell and the Purchaser has agreed to
purchase the Sales Shares on the terms and subject to the conditions hereinafter
contained.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In the Agreement and the Schedule hereto the following
words and expressions shall have the following meanings:
"Assignment of Loan Note" the assignment of the loan note as
annexed to the Option Agreement;
"Claims" the priority exploration claims
and applications of the Company in
respect of various locations in the
Cuiaba region, Brazil, as more
fully set out in the Schedule to
the Option Agreement;
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"Completion" completion of the sale and purchase of the
Sale Shares in accordance with this
Agreement;
"Encumbrance" a mortgage, charge, pledge, lien, option,
restriction, right of first refusal, pre-emption
right, third party right or interest, other
encumbrance or security interest of any kind,
or another type of preferential arrangement
(including, without limitation, a title transfer
or retention arrangement) having similar
effect;
the "Option Agreement" the agreement between the Vendor, the
Parent and the Company of even date and
attached hereto as Schedule 1;
"person" any individual, firm, company or other
incorporated or unincorporated body;
"the Purchaser's Solicitors" Xxxxxxxx Xxxxxx Xxxxxxxx of Xxxxxxxx Xxxx
Xxxxx, 0 Xxxxxxxx Xxxxxxxx Xxxx, Xxxxxx
XX0X 0XX;
"the Sale Shares" all of the issued ordinary shares in the capital
of the Company legally and beneficially
owned by the Vendor;
"the Share Purchase Agreement" the agreement between the Vendor, the
Parent and the Company annexed to the
Option Agreement in Schedule II thereof;
"the Supplemental Agreement" the agreement between the Vendor, the
Parent, the Company and the Purchaser in
the agreed form as annexed hereto in
Schedule II;
"US$" dollars, the lawful currency of the United
States of America;
"the Vendor's Solicitors" Xxxxx Xxxxxx of 00-00 Xxxxxxx Xxxxxx,
Xxxxxx X0X 0XX;
"(British Pound)" sterling pounds, the local currency of the
United Kingdom.
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1.2 In this Agreement references to statutes, by-laws,
regulations and delegated legislation shall include any statute, by-law,
regulation or delegated legislation modifying, re-enacting, extending or made
pursuant to the same or which is modified, re-enacted, or extended by the same
or pursuant to which the same is made.
1.3 A document is in "the agreed form" if it is in the form of
a draft agreed between and initialled by or on behalf of the parties hereto on
or before the date hereof.
1.4 The Schedules to this Agreement are an integral part of
this Agreement and references to this Agreement include references to such
Schedules.
1.5 References in this Agreement to Clauses, Sub-Clauses,
paragraphs and Schedules are references to those contained in this Agreement.
1.6 For the avoidance of doubt, words and phrases utilised in
the Option Agreement have the same meaning as in this Agreement unless the
context otherwise requires.
2. PRE-CONDITION
Notwithstanding any other provision of this Agreement, the obligations
of the Purchaser hereunder and Completion are conditional upon the Vendor, the
Parent and the Company entering into the Supplemental Agreement in the agreed
form annexed hereto at Schedule II.
3. SALE AND PURCHASE
3.1 The Vendor agrees to sell with full title guarantee and
the Purchaser agrees to buy the Sale Shares and each right attaching to the Sale
Shares at or after the date of this Agreement, free of any Encumbrance and the
Vendor hereby waives any rights of pre-emption it has in relation to any of the
Sale Shares.
3.2 The Vendor warrants that it is the sole legal and
beneficial owner of and has full lawful right, title and authority to transfer
the beneficial ownership of the Sale Shares free from any Encumbrance, and that
the Sale Shares comprise the entire issued share capital of the Company.
4. CONSIDERATION
4.1 The total purchase consideration payable by the Purchaser
for the purchase of the Sale Shares shall be the allotment of 7,500,000 ordinary
shares in the Purchaser (the "Allotted Shares") to the Vendor subject always to
the restrictions contained in Clause 4.2.
4.2 It is hereby agreed that the Vendor will be restricted
from transferring, selling, disposing or dealing in any way with the Allotted
Shares during the Option Period (together with a further period of two months
thereafter in the case of the matters referred to at (ii), (iii) and (iv) below)
until the first to happen of the following events, namely:
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(i) The Option is exercised by the Optionee; or
(ii) The Optionee notifies the Optionor in writing
that it wishes to terminate the Option; or
(iii) 30 June 1999, or such later date as may be
agreed by all the parties to the Option Agreement; or
(iv) The breach by the Optionee of its obligation
more particularly referred to in Clause 5.1(iv) in the Option
Agreement.
4.3 For the avoidance of doubt, in the event of the Option
being exercised by the Optionee in accordance with Clause 3, the restrictions
set out at Clause 4.1 of the Share Purchase Agreement shall not be applicable in
respect of the Allotted Shares.
4.4 In the event of the Vendor asserting a breach by the
Company in accordance with the provisions of clause 5.1(iv) of the Option
Agreement, full details of such breach shall be notified to the Purchaser in
writing prior to any exercise by the Vendor of its rights pursuant to clause
4.2(iv) the Purchaser shall be provided with a period of seven working days to
remedy the alleged breach to the satisfaction of the Vendor.
4.5 Notwithstanding the provisions of Clause 4.2 above, the
Allotted Shares may be placed through the Purchaser's brokers in agreement with
the Purchaser at any time after the date hereof. The Purchaser undertakes to act
reasonably in respect of all requests for sale of the Allotted Shares from the
Vendor.
5. COMPLETION
5.1 Completion shall take place at the offices of the Vendors
Solicitors or at such other place as the parties may agree immediately after the
signing of this Agreement.
5.2 At Completion the Vendor shall deliver to the Purchaser
(i) an executed stock transfer form in respect of the Sales Shares together with
any and every Share Certificate which the Vendor's may possess representing all
or any of the Sale Shares; (ii) a letter executed as a deed in the form required
by the Purchaser from each present director and secretary of the Company
resigning their respective offices from the Company.
5.3 The Vendor shall procure that at Completion the directors
of the Company hold a meeting at which they approve (subject to stamping if
applicable) the registration of the Purchaser as owner of the Sale Shares; and
the appointment of such persons as nominated by the Purchaser as directors of
the Company with effect from the end of the meeting.
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6. WARRANTIES
6.1 The Vendor warrants, represents and undertakes to the
Purchaser that save for entering into the Option Agreement, the Company has not
carried on any trade or business and that other than the rights and interests
arising from the Option Agreement, the Company has no interest whatsoever in any
assets and does not have any liabilities.
6.2 Save as disclosed in writing to the Purchaser prior to the
signing hereof and as is apparent from the Memorandum dated 17 November 1998 to
the Purchaser from Xxxxxxxx Neto - Advogados, Mineradora de Bauxita Ltda with
head offices at Xxxxxxx Xxxxxxx Xx 0000 xx xxx Xxxx xx Xxxxxxxx, Xxxxx xx Xxxx,
Xxxxxx is the beneficial owner of the Claims.
7. COSTS
7.1 Except where this Agreement provides otherwise, each party
shall pay its own costs relating to the negotiation, preparation, execution and
performance by it of this Agreement and of each document referred to in it.
8. FURTHER ASSURANCE
8.1 After Completion the Vendor and the Parent shall do all
such things as the Purchaser reasonably requests to vest in the Purchaser title
to the Sale Shares or to comply with the Purchaser's obligations under this
Agreement.
9. NOTICES
9.1 Any notice or other communication given or made under this
Agreement shall be in writing and may be delivered to the relevant party or sent
by first class prepaid letter, or telex or facsimile transmission to the address
of that party specified in this Agreement or to that party's telex or facsimile
transmission number thereat or such other address or number as may be notified
hereunder by that party from time to time for this purpose and shall be
effectual notwithstanding any change of address not so notified.
9.2 Unless the contrary shall be proved, each such notice or
communication shall be deemed to have been given or made and delivered, if by
letter, 48 hours after posting, if by delivery, when left at the relevant
address and, if by telex or facsimile transmission, when transmitted.
10. LAW
10.1 This Agreement shall be governed by and construed in all
respects in accordance with the laws of England and Wales and the parties agree
to submit to the nonexclusive jurisdiction of the English Courts as regards any
claim or matter arising in relation to this Agreement.
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11. COUNTERPARTS
11.1 This Agreement may be executed in any number of
counterparts each of which when executed and delivered is an original, but all
the counterparts together consitute the same document.
TOUCAN MINING LIMITED
By: /s/ X.X. Xxxxxxxx
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X.X. Xxxxxxxx
TOUCAN GOLD CORPORATION
By: /s/ X.X. Xxxxxxxx
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X.X. Xxxxxxxx
MINIMET PLC
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
By: /s/ Xxxxxx X. Riddler
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Xxxxxx X. Riddler
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SCHEDULE I
The Option Agreement
(Omitted. See Exhibit 10.3)
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