TRANSLATION FOR CONVENIENCE ONLY - NOT LEGALLY BINDING TRANSLATION ROLLOVER AGREEMENT INTERVENED IN THE JUDICIAL DISTRICT OF MONTREAL, PROVINCE OF QUEBEC, CANADA
EXHIBIT
10.6
TRANSLATION
FOR CONVENIENCE ONLY - NOT LEGALLY BINDING
TRANSLATION
ROLLOVER
AGREEMENT INTERVENED IN THE JUDICIAL DISTRICT OF MONTREAL, PROVINCE OF QUEBEC,
CANADA
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BETWEEN:
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3841944
CANADA INC., a
body politic and corporate duly incorporated under the Canada Business
Corporations act, having its place of business situated at 000
XxXxxx Xxxxxx, Xxxxx 0000,
in the City and District of Montreal, herein acting and represented
by
Xxxxxx
Xxxxxxxxx,
its president, duly authorized by a resolution (annexe
A);
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(hereinafter
referred to as the “Vendor”)
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AND:
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WATER
BANK OF AMERICA INC., a
body politic and corporate duly incorporated under the Canada Business
Corporations act, having its place of business situated at 000
XxXxxx Xxxxxx, Xxxxx 0000,
in the City and District of Montreal, herein acting and represented
by
Xxxxxx
Xxxxxxxxx,
its president, duly authorized by a resolution (annexe
B);
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(hereinafter
referred to as the “Purchaser”)
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PREAMBLE
The
parties declare as follows:
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a)
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The
Vendor is the holder of record of 462,063 Class A Shares of Eau de
Source
Vita (2000) Inc. (hereinafter the “Corporation”), representing the
totality of the issued shares of the capital stock of such
Corporation;
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b)
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The
Vendor wishes to sell the aforesaid shares to the Purchaser, who
wishes to
purchase same;
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c)
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The
and the Purchaser are related parties as defined the Income Tax
Act;
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d)
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It
is the intention of the parties to transfer the aforesaid shares
at their
fair market value and the price hereinafter stipulated reflects the
amount
which the parties consider to be such fair market value, having been
established using reasonable methodology, and in consulation with
the
Corporation’s accountant;
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e)
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The
aforesaid shares were effectively transferred to the Purchaser on
June
3rd
2002, the parties having intended to transfer said actions concurrently
with the incorporation of the Purchaser, which incorporation took
place on
May 31st
2002;
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f)
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The
fact that the parties hereto are related as such term is defined
in the
Income Tax Act, may result in an adjustment of the fair market value
as
stipulated herein by governmental authorities, federal or
provincial;
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g)
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Accordingly,
the parties have agreed that the fair market value for the shares
may be
adjusted according to the value established by competent fiscal
governmental authorities and in accordance with the dispositions
of the
present contract, as the case may
be;
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AND
THE
PARTIES HAVE AGREED AS FOLLOWS:
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1.
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INTERPRETATION
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1.1
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Terminology
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The
following words and phrases, when they appear in the Agreement or in any
ancillary documents, shall be interpreted or construed according to the
definitions set out below, unless there be an implicit or explicit derogation
therefrom in the text:
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“Shares”
shall mean the 462,063 Class A Shares held by the Vendor in the capital
stock of Eau de Source Vita (2000) Inc., representing the totality
of its
issued and outstanding shares;
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1.1.2
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“Agreement”
shall mean the present agreement including its preamble, recitals
and
schedules, any ancillary documents thereto, as well as any amendments
or
variations made thereto from time to time by the parties; the terms
“herein”, “hereof”, “hereto”, “herewith”, “hereunder”, “hereby” and other
similar phrase or expression, when used in this agreement, generally
refer
to this agreement as a whole rather than to a specific part hereof,
unless
an indication to the contrary exists in the
text.
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1.2
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The
present represents and embodies the entire understanding reached
between
the parties, to the exclusion of all other documents, contracts,
verbal
promises or covenants made, given or entered into previously or
concurrently herewith, in the course of negotiations, leading up
to the
full performance or execution of this agreement, which the parties
declare
inadmissible to be tendered as evidence to the extent that they may
be
liable to amend, vary or affect in any manner whatsoever, any of
the
provisions of the present
agreement.
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1.3
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Jurisdiction
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1.3.1
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Governing
Law
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This
Agreement, as well as the interpretation or construction thereof,
the
execution or performance thereof, the application and validity thereof,
as
well as the effects thereof, are subject to the applicable laws in
force
and in effect in the Province of Quebec and in Canada, which govern
all or
part of the provisions hereof.
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1.3.2
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Presumption
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Any
provision in this Agreement which is not in compliance with any applicable
laws
shall be deemed to be void, unenforceable and without effect to the extent
that
it is prohibited by one of the said laws. The same shall go for any clauses
which are ancillary or tied to such provision to the extent that their
applicability is dependent upon such provision.
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1.3.3
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Adaptation
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Should
any provision contravene any applicable law, it shall be interpreted or
construed, if need be, in such a manner as to render it in compliance with
the
applicable law or, failing which, in the manner most likely to reflect the
intention of the parties without departing or derogating from the requirements
or stipulations posited by the applicable laws.
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1.4
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General
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1.4.1
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Currency
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All
amounts referred to in this agreement are in Canadian currency.
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1.4.2
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Gender
and number
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To
the
extent required for an understanding of the text, words importing the masculine
gender shall include the feminine gender and vice versa; the same shall apply
to
a word referring to a number insofar as the singular shall encompass the plural
form and vice versa.
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Any
phrase or sentence containing like words capable of variation shall be read,
to
the extent required in order to convey proper meaning to the text, in such
a
manner as to accommodate the proper form of such word, with any necessary
grammatical variations or alterations, and to give such phrase or sentence
a
logical meaning.
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1.4.3
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Headings
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No
resort
shall be had to the headings used in this Agreement in the latter’s
interpretation or construction; such headings shall serve merely to assist
in
classifying and identifying the provisions embodying the Agreement, and, as
a
result, no meaning shall be ascribed to them nor may they influence the
interpretation or construction of a provision.
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2.
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SALE
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Subject
to the payment of the consideration and to the terms and conditions hereof,
the
Vendor hereby sells to the Purchaser 462,063 Class A Shares in the capital
stock
of Eau de Source Vita (2000) Inc.
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3.
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CONSIDERATION
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The
present sale is made for and in consideration of a total amount $150,000.00,
which the Purchaser hereby binds and obliges itself to pay in the manner
hereinafter set forth.
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4.
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PAYMENT
MODALITIES
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4.1
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Issuance
of shares
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The
purchase price stipulated herein, namely the amount of $150,000.00 shall be
paid
and acquitted by the Purchaser by way of issuance in favor of the Vendor of
12,000,000 Class A Shares an 3 000 000 Class B in the capital stock Water Bank
of America Inc.
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5.
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ROLLOVER
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5.1
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Election
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The
parties signatory hereto binds and oblige themselves to report such sale of
shares as a joint election, the whole pursuant to paragraphs 85 (1) of the
Income Tax Act (Canada) and Article 518 of the Tax Act (Quebec). To this end,
the parties hereby agree and oblige themselves to jointly deposit forms T-2057
and TP-518 within the prescribed delays, with the appropriate governmental
fiscal authorities.
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5.2
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Elected
amount
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The
elected amount for the purchase of the Shares is established by the parties
at
the sum of $150,000.00 and represents for the Vendor, the cost of disposition
of
the Shares and, for the Purchaser, the cost of acquisition of such Shares.
For
the
purpose of the preceding paragraph, the parties hereby acknowledge that the
elected amount corresponds to the “indicated amount” of the shares, the whole in
accordance with the meaning given to such expression pursuant to the Income
Tax
Act (Canada) and the Tax Act (Quebec).
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5.3
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Adjustments
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Considering
the fact that the parties hereto are related, as such term is defined in the
Income Tax Act and the Tax Act, and in addition to their intention to proceed,
in good faith, to the sale of the Shares for a consideration equivalent to
the
fair market value thereof, which value has been established using reasonable
methodology and in consultation with the accountants of the Corporation, the
Vendor and the Purchaser agree and covenant that, in the event of contestation
of the elected fair market value of the shares by governmental fiscal
authorities for whatsoever reason, the price of the Shares together with the
redemption value of the Shares issued in acquittance of the Purchase Price,
shall thereafter be adjusted to reflect the fair market value of the Shares
as
shall have been established by the fiscal assessment which has not been
contested, or as established by out-of-court or amiable settlement or by final
judgment, as the case may be, with such adjustment to have the retroactive
effect to the date of the present contract.
In
such
eventuality, any adjustment to the redemption value of the Class A and Class
B
Shares issued in acquittance of the Purchase Price shall be performed in
conformity with the statutes of incorporation of the Purchaser.
The
above
mentioned disposition shall apply, subject to the right of either party to
contest any reevaluation of the fair market value of the Shares, as may have
been assessed or proposed to be assessed by governmental fiscal authorities.
In
the eventuality of a difference between a federal fiscal assessment and a
provincial fiscal assessment, the adjustment shall be effected on the basis
of
the lesser of the two assessments, the whole in the case where there has been
no
contestation, or that there has been an out-of-court settlement or that a final
judgment has intervened, as the case may be.
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5.4
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Formality
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The
parties hereto agree and covenant to sign all documents and to do all such
things as may be required to give full effect to the present contract and as
the
case may be, in order to conform to the requirements of the interpretation
bulletin numbers IT-169 (Canada Customs and Revenue Agency) and IMP.28-4
(Revenue Quebec), relating to the adjustment clause herein.
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6.
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VENDOR
WARRANTIES
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The
Vendor hereby represents and warrants in favor of the Purchaser the
following:
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6.1
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Status
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The
Corporation was duly created pursuant to the Canada Business Corporations Act
and its has complied, initially and annually, with the requirements of the
act
by sending of its annual report to the director, as well as the requirements
of
the Act Respecting the Legal Publicity of Sole Proprietorships, Partnerships
and
Legal Persons (Quebec).
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6.2
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Shares
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The
Shares were legally issued as fully paid and non assessable, the whole in
conformity with the constituting documents and by-laws of the
Corporation.
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6.3
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Property
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It
is the
sole and the absolute owner of the Shares, to the exclusion of any other person,
and has the power and the capacity to dispose of same.
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6.4
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Restriction
on the transfer of Shares
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The
present transfer of shares has been authorized by the Board of Directors of
Eau
de Source Vita (2000) Inc., the whole as more fully appears from a resolution
attached hereto as Annexe C; the shares are not subject to any other
authorization formality in connection with their transfer.
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6.5
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Accomplishment
of formality
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The
Vendor binds and obliges itself to fulfill any formalities, without delay,
required in order to effect the transfer of the Shares, mainly by endorsing
the
share certificate(s) representing the said Shares in favor of the Purchaser
and
to sign all transfer registers of the Corporation, the whole in order to perfect
title in the hands of the Purchaser.
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6.6
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Fair
market value
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Fair
market value of the Shares corresponds to the amount of $150,000.00, such value
having been established in consultation with the accountants or auditors of
the
Corporation.
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6.7
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As
at the date of these present, no declared and unpaid dividend is
due and
owing to the Vendor.
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7.
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REPRESENTATIONS
OF THE PURCHASER
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The
Purchaser hereby declares and warrants that it has the capacity and the
authority required in order to proceed to the acquisition and to legally hold
the Shares, as well as to subscribe to and adhere to the various dispositions
posited herein.
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8.
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GENERAL
DISPOSITIONS
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8.1
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Annexes
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Any
schedule to the agreement, initialed by the parties for identification purposes,
constituted an integral part hereof.
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8.2
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Notice
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Save
and
express for stipulation to the contrary, any notice required to be given
pursuant to the present agreement is considered having been received if it
is
made in writing and expedited by a made of communication which allows the
expediting party to prove that the aforesaid notice was effectively and actually
delivered to the recipient at the address indicated at the beginning of the
present contract or at such other address as the parties hereto may be aware
of.
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8.3
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Amendment
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The
present contract may be modified from time to time, in whole or in part, by
written agreement between the parties which must be delivered onto the
other.
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8.4
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Non-waiver
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The
silence of any one party, its negligence, and/or its abstaining from exercising
a right or a recourse which is available to it in virtue of the present
contract, shall not be considered or interpreted as a renunciation to any such
rights or recourses, for so long as the statute of limitations, whether
contractual or statutory, providing for the exercise of such right or recourse
has not expired.
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9.
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EFFECTIVE
DATE
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The
present agreement shall become effective upon its signing by the parties
hereto.
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10.
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SCOPE
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The
present agreement is binding upon the parties hereto, as well as their legal
representatives.
IN
WITNESS WHEREOF, THE PARTIES HERETO HAVE SIGNED FOUR (4) ORIGINALS OF THIS
AGREEMENT AT MONTREAL, PROVINCE OF QUEBEC, THIS 16TH
DAY OF
AUGUST 2002.
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Vendor:
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Purchaser
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3841944
CANADA INC.
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WATER
BANK OF AMERICA INC.
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| (SGD) Xxxxxx Xxxxxxxxx |
(SGD)
Xxxxxx Xxxxxxxxx
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Per:
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____________________________ |
Per:
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_____________________________ | ||
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