EXHIBIT 2.2
THIS AGREEMENT made as of the 10th day of April, 1997 is made
BETWEEN
XXXXX XXXXXXX, XXXXXXXX XXXXXXX AND THE XXXXXXX CHILDREN'S TRUST
(hereinafter collectively called the "Xxxxxxx")
AND
RESI CORP.
(hereinafter called "Resi")
AND
EGYPTIAN ARABIANS INC.
(hereinafter called "Egyptian")
WHEREAS it is intended that pursuant to agreements of purchase and sale dated as
of April 10, 1997 between each of the Xxxxxxx and Resi, Xxxxxxx will agree to
sell and Resi will agree to purchase certain shares in the capital stock of
622291 Ontario Limited (the "622291 Shares") on the terms and conditions as set
out in the agreements of purchase and sale, copies of which are attached hereto
as Schedule "A" (the "Resi Transaction");
AND WHEREAS it is intended that pursuant to an agreement of purchase and sale
dated as of April 10, 1997 between Resi and Egyptian, Resi will agree to sell
and Egyptian will agree to purchase the 622291 Shares in consideration of the
issuance of l,000 common shares in the capital stock of Egyptian (the "Egyptian
Shares") to Resi and on such other terms and conditions as set out in the
agreement of purchase and sale, a copy of which is attached hereto as Schedule
"B" (the "Egyptian Transaction");
AND WHEREAS it is intended that Resi will agree to sell and Mercristo
Developments Inc. will agree to purchase the Egyptian Shares in consideration of
the issuance of 8,450,000 common shares in the capital stock of Mercristo
Developments Inc. to Resi (the "Mercristo Transaction");
AND WHEREAS it is intended that the Mercristo Transaction shall close in escrow
pending fulfillment of the following conditions: acceptance of the common
shares in the capital stock of Mercristo Developments Inc. for trading on
NASDAQ; registration of Mercristo
Developments Inc. with the Securities Exchange Commission; and any other
conditions as may be agreed to between the parties (the "Escrow Conditions");
AND WHEREAS it is intended that the Resi Transaction, the Egyptian Transaction
and the Mercristo Transaction are interrelated and that the parties intend that
no Transaction shall be finally completed unless all Transactions are finally
completed;
NOW THEREFORE in consideration of the premises and of the covenants contained
herein, the sum of $1 paid by each of the parties to the other parties hereto
and other good and valuable consideration (the receipt and sufficiency of which
are hereby acknowledged), the parties hereto agree as follows:
1. The Resi Transaction and the Egyptian Transaction shall close in escrow on
April 10, 1997, pending satisfaction of the parties that the Escrow Conditions
will be fulfilled. Until such time, it is the intention of the parties that all
documentation and payments relating to the Resi Transaction and the Egyptian
Transaction shall not be delivered to the other parties entitled thereto but
shall remain in the possession of the solicitors for the parties, Gowling
Strathy & Xxxxxxxxx (the "Escrow Agent"). The parties agree that if they are
satisfied that the Escrow Conditions will be fulfilled, they shall provide a
joint written direction to the Escrow Agent that all documentation and payments
relating to the Resi Transaction and the Egyptian Transaction shall be delivered
to the parties entitled thereto so that the escrow shall be lifted and the
Transactions shall be finally closed. The parties agree that if they are not
satisfied that the Escrow Conditions will be fulfilled, they shall provide a
joint written direction to the Escrow Agent that all documentation and payments
relating to the Resi Transaction and the Egyptian Transaction be returned to the
parties who executed the same so that the Transactions shall be null and void.
Until such time as the written direction to the Escrow Agent shall be made, the
Xxxxxxx shall continue to be treated as owning the 622291 Shares but, if the
escrow is lifted and the Transactions are finally closed, the Xxxxxxx shall be
treated as owning the 622291 Shares in trust for Egyptian during the period of
escrow.
2. The parties hereto agree that each shall with reasonable diligence proceed
to take all action to do all things and provide reasonable assurances as may be
required to consummate the transaction contemplated herein, and the parties
hereto agree to provide such further documents or instructions required by the
other partes as may be necessary to effect the purpose of this Agreement and
carry out its provisions, whether prior to or after closing.
3. This Agreement will be governed by the laws of the Province of Ontario.
4. This Agreement represents the entire understanding of the parties and no
modifications thereof or additions thereto will be binding unless in writing,
having direct reference to this Agreement and executed by all the parties.
5. This Agreement shall enure to the benefit of and be binding upon the parties
hereto, their respective heirs, executors, administrators, successors and
assigns.
- 2 -
In Witness Whereof the parties hereto have executed this agreement.
Signed in the presence of
/s/ X. Xxxxxx /s/ Xxxxx Xxxxxxx
-------------------- --------------------
XXXXX XXXXXXX
/s/ X. Xxxxxx /s/ X. Xxxxxxx
-------------------- ---------------------
XXXXXXXX XXXXXXX
THE XXXXXXX CHILDREN'S TRUST
/s/ X. Xxxxxx /s/ Xxxxx Xxxxxxx
-------------------- ------------------
XXXXX XXXXXXX, Trustee
/s/ X. Xxxxxx /s/ X. Xxxxxxx
-------------------- --------------------
XXXXXXXX XXXXXXX, Trustee
RESI CORP.
/s/ Xxxxx Xxxxxxx
--------------------
Name: Xxxxx Xxxxxxx
Title: President
EGYPTIAN ARABIANS INC.
/s/ Xxxxx Xxxxxxx
------------------
Name: Xxxxx Xxxxxxx
Title: President
- 3 -
Schedule "A"
- 4 -
MEMORANDUM OF AGREEMENT made as of this 10th day of April, 1997
BETWEEN:
XXXXX XXXXXXX
(herein called the "Vendor")
OF THE FIRST PART,
AND:
RESI CORP.
(herein called the "Purchaser")
OF THE SECOND PART.
WHEREAS the Vendor is the owner of the shares in the capital stock of 622291
Ontario Limited more particularly described in Schedule "A" hereto (herein
called the "Shares").
AND WHEREAS the Vendor desires to sell to the Purchaser and the Purchaser
desires to purchase from the Vendor all of the Vendor's right, title and
interest in the Shares.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Subject to the terms and conditions herein contained, the Vendor agrees to
sell, assign, deliver and convey, or cause to be sold, assigned, delivered and
conveyed, all his right, title and interest in and to the Shares to the
Purchaser free and clear of all claims, liens and encumbrances whatsoever. The
Purchaser, in specific reliance on each and every representation and warranty of
the Vendor herein contained, agrees to purchase the said Shares for a total
consideration of $1,520,000 payable by the issuance of a promissory note by the
Purchaser in favour of the Vendor as set out in Schedule "B" hereto. The Vendor
and the Purchaser agree that the consideration shall be allocated among the
Shares in accordance with the allocation set out in Schedule "A" hereto.
2. The Vendor hereby covenants, represents and warrants with and to the
Purchaser that as at the date of this Agreement:
(a) he is the registered and beneficial owner of the said Share; and
(b) on the date of closing he will be a resident of Canada.
3. The closing date of this Agreement shall be the date hereof.
- 5 -
4. The parties hereto agree that each shall with reasonable diligence proceed
to take all action to do all things and provide reasonable assurances as may be
required to consummate the transaction contemplated herein, and both parties
hereto agree to provide such further documents or instructions required by the
other party as may be necessary to effect the purpose of this Agreement and
carry out its provisions, whether prior to or after closing.
5. This Agreement will be governed by the laws of the Province of Ontario.
6. This Agreement represents the entire understanding of the parties and no
modifications thereof or additions thereto will be binding unless in writing,
having direct reference to this Agreement and executed by all the parties.
7. This Agreement shall enure to the benefit of and be binding upon the parties
hereto, their respective heirs, executors, administrators successors and
assigns.
In Witness Whereof the Vendor has hereunto affixed his hand and seal on his
own behalf and the Purchaser has hereunto affixed its corporate seal under the
hand of its proper officer in that behalf, as of the day and year first above
written.
/s/ X. Xxxxxx /s/ Xxxxx Xxxxxxx
-------------------------------- ---------------------------------
Witness as to the signature of XXXXX XXXXXXX
Xxxxx Xxxxxxx
RESI CORP.
per: /s/ Xxxxx Xxxxxxx c/s
--------------------------
Name: Xxxxx Xxxxxxx
Title: President
- 6 -
Schedule "A"
The following shares in the capital stock of 622291 Ontario Limited:
Shares Allocation of consideration
------ ---------------------------
40 Class B $ 0
20,000 First Preferred $ 200,000
152,000 Second Preferred $1,320,000
100 Third Preferred $ 0
- 7 -
Schedule "B"
DEMAND PROMISSORY NOTE
FOR VALUE RECEIVED, Resi Corp. (the "Debtor") hereby unconditionally
promises to pay to or to the order of Xxxxx Xxxxxxx (the "Creditor"), on April
l, 0000, xx Xxxxxx, Xxxxxxx the sum of $1,520,000 and to pay interest from the
date of this Promissory Note on the said sum or the amount from time to time
remaining unpaid at the rate per annum described below, calculated and payable
on the 1st day of April in each year, both before and after demand, default and
judgment and to pay on demand interest on overdue interest at the rate described
below compounded on each date for the payment of interest on this Promissory
Note before and after judgment.
The interest rate per annum shall be such rate as may be chosen by the
Creditor in the absolute discretion of the Creditor based upon the financial
performance of the Debtor in the immediately preceding year but shall not exceed
the rate prescribed by Revenue Canada on overdue income taxes and other arrears
for the second calendar quarter in any particular year. For greater certainty,
the interest rate in effect for the period commencing the date of this
Promissory Note to March 31, 1998 shall not exceed 7% per annum which is the
rate prescribed by Revenue Canada on overdue income taxes and other arrears for
the second calendar quarter of 1997.
The principal of and interest on this Promissory Note shall be paid in
Canadian dollars without set-off or counterclaim.
The principal, or any portion thereof, of this Promissory Note may be paid
at the option of the Debtor without notice or penalty at any time or from time
to time.
The Debtor waives presentment, protest and notice of any kind in the
enforcement of this Promissory Note.
DATED at Ottawa, Ontario this 10th day of April, 1997.
RESI CORP.
per: c/s
------------------------
Name: Xxxxx Xxxxxxx
Title: President
- 8 -
MEMORANDUM OF AGREEMENT made as of this 10th day of April, 1997
BETWEEN:
XXXXXXXX XXXXXXX
(herein called the "Vendor")
OF THE FIRST PART,
AND:
RESI CORP.
(herein called the "Purchaser")
OF THE SECOND PART.
WHEREAS the Vendor is the owner of the shares in the capital stock of 622291
Ontario Limited more particularly described in Schedule "A" hereto (herein
called the "Shares").
AND WHEREAS the Vendor desires to sell to the Purchaser and the Purchaser
desires to purchase from the Vendor all of the Vendor's right, title and
interest in the Shares.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Subject to the terms and conditions herein contained, the Vendor agrees to
sell, assign, deliver and convey, or cause to be sold, assigned, delivered and
conveyed, all her right, title and interest in and to the Shares to the
Purchaser free and clear of all claims, liens and encumbrances whatsoever. The
Purchaser, in specific reliance on each and every representation and warranty of
the Vendor herein contained, agrees to purchase the said Shares for a total
consideration of $660,000 payable by the issuance of a promissory note by the
Purchaser in favour of the Vendor as set out in Schedule "B" hereto. The Vendor
and the Purchaser agree that the consideration shall be allocated among the
Shares in accordance with the allocation set out in Schedule "A" hereto.
2. The Vendor hereby covenants, represents and warrants with and to the
Purchaser that as at the date of this Agreement:
(a) she is the registered and beneficial owner of the said Share; and
- 9 -
(b) on the date of closing she will be a resident of Canada.
3. The closing date of this Agreement shall be the date hereof.
4. The parties hereto agree that each shall with reasonable diligence proceed
to take all action to do all things and provide reasonable assurances as may be
required to consummate the transaction contemplated herein, and both parties
hereto agree to provide such further documents or instructions required by the
other party as may be necessary to effect the purpose of this Agreement and
carry out its provisions, whether prior to or after closing.
5. This Agreement will be governed by the laws of the Province of Ontario.
6. This Agreement represents the entire understanding of the parties and no
modifications thereof or additions thereto will be binding unless in writing,
having direct reference to this Agreement and executed by all the parties.
7. This Agreement shall enure to the benefit of and be binding upon the parties
hereto, their respective heirs, executors, administrators successors and
assigns.
In Witness Whereof the Vendor has hereunto affixed her hand and seal on her
own behalf and the Purchaser has hereunto affixed its corporate seal under the
hand of its proper officer in that behalf, as of the day and year first above
written.
/s/ X. Xxxxxx /s/ X. Xxxxxxx
-------------------------------- -------------------------------
Witness as to the signature of XXXXXXXX XXXXXXX
Xxxxxxxx Xxxxxxx
RESI CORP.
per: /s/ Xxxxx Xxxxxxx c/s
---------------------------
Name: Xxxxx Xxxxxxx
Title: President
- 10 -
Schedule "A"
The following shares in the capital stock of 622291 Ontario Limited:
Shares Allocation of consideration
------ ---------------------------
20 Class A $0
76,000 First Preferred $660,000
- 11 -
Schedule "B"
DEMAND PROMISSORY NOTE
FOR VALUE RECEIVED, Resi Corp. (the "Debtor") hereby unconditionally
promises to pay to or to the order of Xxxxxxxx Xxxxxxx (the "Creditor"), on
April 1, 0000, xx Xxxxxx, Xxxxxxx the sum of $660,000 and to pay interest from
the date of this Promissory Note on the said sum or the amount from time to time
remaining unpaid at the rate per annum described below, calculated and payable
on the 1st day of April in each year, both before and after demand, default and
judgment and to pay on demand interest on overdue interest at the rate described
below compounded on each date for the payment of interest on this Promissory
Note before and after judgment.
The interest rate per annum shall be such rate as may be chosen by the
Creditor in the absolute discretion of the Creditor based upon the financial
performance of the Debtor in the immediately preceding year but shall not exceed
the rate prescribed by Revenue Canada on overdue income taxes and other arrears
for the second calendar quarter in any particular year. For greater certainty,
the interest rate in effect for the period commencing the date of this
Promissory Note to March 31, 1998 shall not exceed 7% per annum which is the
rate prescribed by Revenue Canada on overdue income taxes and other arrears for
the second calendar quarter of 1997.
The principal of and interest on this Promissory Note shall be paid in
Canadian dollars without set-off or counterclaim.
The principal, or any portion thereof, of this Promissory Note may be paid
at the option of the Debtor without notice or penalty at any time or from time
to time.
The Debtor waives presentment, protest and notice of any kind in the
enforcement of this Promissory Note.
DATED at Ottawa, Ontario this 10th day of April, 1997.
RESI CORP.
per: c/s
------------------------
Name: Xxxxx Xxxxxxx
Title: President
- 12 -
MEMORANDUM OF AGREEMENT made as of this 10th day of April, 1997
BETWEEN:
THE XXXXXXX CHILDREN'S TRUST, BY ITS TRUSTEES XXXXX XXXXXXX AND
XXXXXXXX XXXXXXX
(herein called the "Vendor")
OF THE FIRST PART,
AND:
RESI CORP.
(herein called the "Purchaser")
OF THE SECOND PART.
WHEREAS the Vendor is the owner of the shares in the capital stock of 622291
Ontario Limited more particularly described in Schedule "A" hereto (herein
called the "Shares").
AND WHEREAS the Vendor desires to sell to the Purchaser and the Purchaser
desires to purchase from the Vendor all of the Vendor's right, title and
interest in the Shares.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Subject to the terms and conditions herein contained, the Vendor agrees to
sell, assign, deliver and convey, or cause to be sold, assigned, delivered and
conveyed, all its right, title and interest in and to the Shares to the
Purchaser free and clear of all claims, liens and encumbrances whatsoever. The
Purchaser, in specific reliance on each and every representation and warranty of
the Vendor herein contained, agrees to purchase the said Shares for a total
consideration of $1,320,000 payable by the issuance of a promissory note by the
Purchaser in favour of the Vendor as set out in Schedule "B" hereto. The Vendor
and the Purchaser agree that the consideration shall be allocated among the
Shares in accordance with the allocation set out in Schedule "A" hereto.
2. The Vendor hereby covenants. represents and warrants with and to the
Purchaser that as at the date of this Agreement:
(a) it is the registered and beneficial owner of the said Share; and
(b) on the date of closing it will be a resident of Canada.
- 13 -
3. The closing date of this Agreement shall be the date hereof.
4. The parties hereto agree that each shall with reasonable diligence proceed
to take all action to do all things and provide reasonable assurances as may be
required to consummate the transaction contemplated herein, and both parties
hereto agree to provide such further documents or instructions required by the
other party as may be necessary to effect the purpose of this Agreement and
carry out its provisions, whether prior to or after closing.
5. This Agreement will be governed by the laws of the Province of Ontario.
6. This Agreement represents the entire understanding of the parties and no
modifications thereof or additions thereto will be binding unless in writing,
having direct reference to this Agreement and executed by all the parties.
7. This Agreement shall enure to the benefit of and be binding upon the parties
hereto, their respective heirs, executors, administrators successors and
assigns.
In Witness Whereof each of the Trustees of the Vendor has hereunto affixed
his or her hand and seal on his or her own behalf and the Vendor, and the
Purchaser has hereunto affixed its corporate seal under the hand of its proper
officer in that behalf, as of the day and year first above written.
THE XXXXXXX CHILDREN'S TRUST
/s/ X. Xxxxxx /s/ Xxxxx Xxxxxxx
-------------------------------- ------------------------------
Witness as to the signature of XXXXX XXXXXXX, Trustee
Xxxxx Xxxxxxx
/s/ X. Xxxxxx /s/ X. Xxxxxxx
-------------------------------- ------------------------------
Witness as to the signature of XXXXXXXX XXXXXXX, Trustee
Xxxxxxxx Xxxxxxx
RESI CORP.
per: /s/ Xxxxx Xxxxxxx c/s
-----------------------
Name: Xxxxx Xxxxxxx
Title: President
- 14 -
Schedule "A"
The following shares in the capital stock of 622291 Ontario Limited:
Shares Allocation of Consideration
------ ---------------------------
40 Class C $ 0
152,000 Second Preferred $1,320,000
- 15 -
Schedule "B"
DEMAND PROMISSORY NOTE
FOR VALUE RECEIVED, Resi Corp. (the "Debtor") hereby unconditionally
promises to pay to or to the order of The Xxxxxxx Children's Trust (the
"Creditor"), on April 1, 0000, xx Xxxxxx, Xxxxxxx the sum of $1,320,000 and to
pay interest from the date of this Promissory Note on the said sum or the amount
from time to time remaining unpaid at the rate per annum described below,
calculated and payable on the 1st day of April in each year, both before and
after demand, default and judgment and to pay on demand interest on overdue
interest at the rate described below compounded on each date for the payment of
interest on this Promissory Note before and after judgment.
The interest rate per annum shall be such rate as may be chosen by the
Creditor in the absolute discretion of the Creditor based upon the financial
performance of the Debtor in the immediately preceding year but shall not exceed
the rate prescribed by Revenue Canada on overdue income taxes and other arrears
for the second calendar quarter in any particular year. For greater certainty,
the interest rate in effect for the period commencing the date of this
Promissory Note to March 31, 1998 shall not exceed 7% per annum which is the
rate prescribed by Revenue Canada on overdue income taxes and other arrears for
the second calendar quarter of 1997.
The principal of and interest on this Promissory Note shall be paid in
Canadian dollars without set-off or counterclaim.
The principal, or any portion thereof, of this Promissory Note may be paid
at the option of the Debtor without notice or penalty at any time or from time
to time.
The Debtor waives presentment, protest and notice of any kind in the
enforcement of this Promissory Note.
DATED at Ottawa, Ontario this 10th day of April, 1997.
RESI CORP.
per: c/s
------------------------
Name: Xxxxx Xxxxxxx
Title: President
- 16 -
Schedule "B"
- 17 -
MEMORANDUM OF AGREEMENT made as of this 10th day of April, 1997
BETWEEN:
RESI CORP.
(herein called the "Vendor")
OF THE FIRST PART,
AND:
EGYPTIAN ARABIANS INC.
(herein called the "Purchaser")
OF THE SECOND PART.
WHEREAS the Vendor is the owner of the shares in the capital stock of 622291
Ontario Limited more particularly described in Schedule "A" hereto (herein
called the "Shares").
AND WHEREAS the Vendor desires to sell to the Purchaser and the Purchaser
desires to purchase from the Vendor all of the Vendor's right, title and
interest in the Shares.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Subject to the terms and conditions herein contained, the Vendor agrees to
sell, assign, deliver and convey, or cause to be sold, assigned, delivered and
conveyed, all its right, title and interest in and to the Shares to the
Purchaser free and clear of all claims, liens and encumbrances whatsoever. The
Purchaser, in specific reliance on each and every representation and warranty of
the Vendor herein contained, agrees to purchase the said Shares for a total
consideration of $3,500,000 payable by the allotment and issue to the Vendor of
1,000 Common Shares in the capital stock of the Purchaser, which Common Shares
shall be issued with an aggregate stated capital of $3,500,000. The Vendor and
the Purchaser agree that the consideration shall be allocated among the Assets
in accordance with the allocation set out in Schedule "A" hereto.
2. The Vendor hereby covenants, represents and warrants with and to the
Purchaser that as at the date of this Agreement:
(a) it is the registered and beneficial owner of the said Shares; and
(b) on the date of closing it will be a resident of Canada.
- 18 -
3. The closing date of this Agreement shall be the date hereof.
4. The parties hereto agree that each shall with reasonable diligence proceed
to take all action to do all things and provide reasonable assurances as may be
required to consummate the transaction contemplated herein, and both parties
hereto agree to provide such further documents or instructions required by the
other party as may be necessary to effect the purpose of this Agreement and
carry out its provisions, whether prior to or after closing.
5. This Agreement will be governed by the laws of the Province of Ontario.
6. This Agreement represents the entire understanding of the parties and no
modifications thereof or additions thereto will be binding unless in writing,
having direct reference to this Agreement and executed by all the parties.
7. This Agreement shall enure to the benefit of and be binding upon the parties
hereto, their respective successors and assigns.
In Witness Whereof each of the Vendor and the Purchaser has hereunto affixed
its corporate seal under the hand of its proper officer in that behalf as of the
day and year first above Written.
RESI CORP.
per: /s/ Xxxxx Xxxxxxx c/s
------------------------
Name: Xxxxx Xxxxxxx
Title: President
EGYPTIAN ARABIANS INC.
per: /s/ Xxxxx Xxxxxxx c/s
------------------------
Name: Xxxxx Xxxxxxx
Title: President
- 19 -
Schedule "A"
The following shares in the capital stock of 622291 Ontario Limited:
Shares Allocation of Consideration
------ ---------------------------
20 Class A $ 0
40 Class B $ 0
40 Class C $ 0
20,000 First Preferred $ 200,000
380,000 Second Preferred $3,300,000
100 Third Preferred $ 0
- 20 -
THIS AGREEMENT made as of the 10th day of April, 1997, is made
BETWEEN
E.S.I. HOLDINGS LIMITED
(hereinafter called "Holdings")
AND
E.S.I. SECURITIES INC.
(hereinafter called "Securities")
AND
622291 ONTARIO LIMITED
(hereinafter called "622291")
WHEREAS it is intended that pursuant to an agreement of purchase and sale dated
as of April 10, 1997 between Holdings and Securities, Holdings will agree to
sell and Securities will agree to purchase certain land known municipally as 000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxx (the "Land") on the terms and conditions as set
out in the agreement of purchase and sale, a copy of which is attached hereto as
Schedule "A" (the "Securities Transaction");
AND WHEREAS it is intended that pursuant to an agreement of purchase and sale
dated as of April 10, 1997 between Securities and 622291, Securities will agree
to sell and 622291 will agree to purchase the Land on the terms and conditions
as set out in the agreement of purchase and sale, a copy of which is attached
hereto as Schedule "B" (the "622291 Transaction");
AND WHEREAS it is intended that the Securities Transaction and the 622291
Transaction shall take place prior to (i) the sale of shares in the capital
stock of 622291 from Xxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx and The Xxxxxxx Children's
Trust to Resi Corp. and from Resi Corp. to Egyptian Arabians Inc. (the "Xxxxxxx
Reorganization") and (ii) the sale of shares in the capital stock of Egyptian
Arabians Inc. from Resi Corp. to Mercristo Developments Inc. (the "Mercristo
Transaction");
AND WHEREAS it is intended that the Mercristo Transaction shall close in escrow
pending fulfillment of the following conditions: acceptance of the common
shares in the capital stock of Mercristo Developments Inc. for trading on
NASDAQ; registration of Mercristo Developments Inc. with the Securities Exchange
Commission; and any other conditions as may be agreed to between the parties
(the "Escrow Conditions");
AND WHEREAS it is intended that the Securities Transaction, the 622291
Transaction, the Xxxxxxx Reorganization and the Mercristo Transaction are
interrelated and that the parties intend that no Transaction shall be finally
completed unless all Transactions are finally completed;
NOW THEREFORE in consideration of the premises and of the covenants contained
herein, the sum of $1 paid by each of the parties to the other parties hereto
and other good and valuable consideration (the receipt and sufficiency of which
are hereby acknowledged), the parties hereto agree as follows:
1. The Securities Transaction and the 622291 Transaction shall close in escrow
on April 10, 1997, pending satisfaction of the parties that the Escrow
Conditions will be fulfilled. Until such time, it is the intention of the
parties that all documentation and payments relating to the Securities
Transaction and the 622291 Transaction shall not be delivered to the other
parties entitled thereto but shall remain in the possession of the solicitors
for the parties, Gowling Strathy & Xxxxxxxxx (the "Escrow Agent"). The parties
agree that if they are satisfied that the Escrow Conditions will be fulfilled,
they shall provide a joint written direction to the Escrow Agent that all
documentation and payments relating to the Securities Transaction and the 622291
Transaction shall be delivered to the parties entitled thereto so that the
escrow shall be lifted and the Transactions shall be finally closed. The
parties agree that if they are not satisfied that the Escrow Conditions will be
fulfilled, they shall provide a joint written direction to the Escrow Agent that
all documentation and payments relating to the Securities Transaction and the
622191 Transaction be returned to the parties who executed the same so that the
Transactions shall be null and void. Until such time as the written direction
to the Escrow Agent shall be made, Holdings shall continue to be treated as
owning the Land but, if the escrow is lifted and the Transactions are finally
closed, Holdings shall be treated as owning the Land in trust for 622291 during
the period of escrow.
2. The parties hereto agree that each shall with reasonable diligence proceed
to take all action to do all things and provide reasonable assurances as may be
required to consummate the transaction contemplated herein, and the parties
hereto agree to provide such further documents or instructions required by the
other parties as may be necessary to effect the purpose of this Agreement and
carry out its provisions, whether prior to or after closing.
3. This Agreement will be governed by the laws of the Province of Ontario.
4. This Agreement represents the entire understanding of the parties and no
modifications thereof or additions thereto will be binding unless in writing,
having direct reference to this Agreement and executed by all the parties.
5. This Agreement shall enure to the benefit of and be binding upon the parties
hereto, their successors and assigns.
- 2 -
In Witness Whereof the parties hereto have executed this agreement.
E.S.I. HOLDINGS LIMITED
/s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
XXXXXXX SECURITIES INC.
/s/ Xxxxx Xxxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx Xxxxxxx
Title: President
622291 ONTARIO LIMITED
/s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
- 3 -
Schedule "A"
- 4 -
MEMORANDUM OF AGREEMENT made this 10th day of April, 1997.
BETWEEN:
E.S.I. HOLDINGS LIMITED
(herein called the "Vendor")
OF THE FIRST PART,
AND:
XXXXXXX SECURITIES INC.
(herein called the "Purchaser")
OF THE SECOND PART.
WHEREAS the Vendor is the owner of certain assets more particularly
described in Schedule "A" hereto (herein called the "Assets").
AND WHEREAS the Vendor desires to sell to the Purchaser and the Purchaser
desires to purchase from the Vendor all of the Vendor's right, title and
interest in the Assets for a price that represents the current fair market value
of such Assets.
AND WHEREAS the parties intend that subsection 85(1) of the Income Tax Act
(Canada) shall apply to the transfer of the said Assets by the Vendor to the
Purchaser, as is more fully set out in this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Subject to the terms and conditions herein contained, the Vendor agrees to
sell, assign, deliver and convey, or cause to be sold, assigned, delivered and
conveyed, all its right, title and interest in and to the Assets to the
Purchaser free and clear of all claims, liens and encumbrances whatsoever,
except for those specifically assumed by the Purchaser as described herein. The
Purchaser, in specific reliance on each and every representation and warranty of
the Vendor herein contained, agrees to purchase the said Assets of the Vendor
for a total consideration of $550,000, payable as to the sum of $436,850 by the
assumption of the mortgages more particularly described in Schedule "B" hereto
and, as to the sum of $113,150 by the allotment and issue to the Vendor of
113,150 First Preferred Shares in the capital stock of the Purchaser (having a
redemption value of $1 per share), which First Preferred Shares shall be issued
with an aggregate stated capital of $113,150. The Vendor and the Purchaser
agree that the consideration shall be allocated among the Assets in accordance
with the allocation set out in Schedule "A" hereto.
- 5 -
2. The Vendor hereby covenants, represents and warrants with and to the
Purchaser that as at the date of this Agreement:
(a) it is the registered and beneficial owner of the said Assets; and
(b) on the date of closing it will be a resident of Canada.
3. The parties intend that subsection 85(1) of the Income Tax Act (Canada)
shall apply to the transfer of the Assets and consequently the Vendor and
Purchaser agree to elect that the said Assets are transferred for purposes of
the said Act as set out in Schedule "C" hereto.
4. The parties agree to execute and file all necessary documents to give effect
to the election referred to in paragraph 3 hereof on or before December 31,
1997.
5. It being the intention of the parties hereto that the purchase price herein
provided for shall be the fair market value at the date of this Agreement of the
Assets herein being purchased and sold, the Vendor and Purchaser agree that if a
different value is determined or assumed, upon assessment or reassessment of
either the Vendor or Purchaser under the Income Tax Act (Canada) or upon
agreement with officials of Revenue Canada, Taxation or upon agreement between
the Vendor and Purchaser (with or without agreement of officials of Revenue
Canada, Taxation) then the value so determined or assumed, either after
objection or appeal or by agreement with officials of Revenue Canada, Taxation
or by agreement between the Vendor and Purchaser (with or without agreement of
officials of Revenue Canada, Taxation), shall be deemed to be the value assigned
to the Assets under the Agreement, and the purchase price shall be adjusted
accordingly and retroactively, nunc pro tunc, to the date of the Agreement. The
Vendor and Purchaser further agree to pay such additional sum or to refund such
part of the consideration paid herein as the circumstances may require. The
provisions of this paragraph shall apply to the securities issued by the
Purchaser in consideration for the sale of the Assets to the Purchaser. For
greater certainty, for purposes of paragraph 5 and paragraph 6 of this Agreement
the parties hereto further agree that if Revenue Canada, Taxation invokes the
use of Section 85(1)(e.2) and if as a result a different value or adjusted cost
base is determined or assumed, upon assessment or reassessment, or upon
agreement with officials of Revenue Canada, Taxation, then the provisions set
out in paragraph 5 and paragraph 6 of this Agreement shall apply as the
circumstances may require.
6. The parties hereto further agree that if a different cost amount than the
amount set out in Schedule "C" of this Agreement is determined or assumed upon
assessment or reassessment of either the Vendor or Purchaser under the Income
Tax Act (Canada) or upon agreement with officials of Revenue Canada, Taxation or
upon agreement between the Vendor and Purchaser (with or without agreement of
officials of Revenue Canada, Taxation) then the cost amount so determined or
assumed, either after objection or appeal or by agreement with officials of
Revenue Canada, Taxation or by agreement between the Vendor and Purchaser (with
or without agreement of officials of Revenue Canada, Taxation), shall be deemed
to be the cost amount assigned to the Assets under this Agreement, and the
allocation of the consideration given for the Assets shall be adjusted
accordingly and retroactively, nunc
- 6 -
pro tunc, to the date of the Agreement. The Vendor and Purchaser further agree
to pay such additional sum or refund such part of the consideration paid herein
as the circumstances may require.
7. The closing date of this Agreement shall be the date hereof.
8. The parties hereto agree that each shall with reasonable diligence proceed
to take all action to do all things and provide reasonable assurances as may be
required to consummate the transaction contemplated herein, and both parties
hereto agree to provide such further documents or instructions required by the
other party as may be necessary to effect the purpose of this Agreement and
carry out its provisions, whether prior to or after closing.
9. This Agreement will be governed by the laws of the Province of Ontario.
10. This Agreement represents the entire understanding of the parties and no
modifications thereof or additions thereto will be binding unless in writing,
having direct reference to this Agreement and executed by all the parties.
11. This Agreement shall enure to the benefit of and be binding upon the parties
hereto, their respective successors and assigns.
In Witness Whereof each of the Vendor and the Purchaser has hereunto affixed
its corporate seal under the hand of its proper officer in that behalf, the day
and year first above written.
E.S.I. HOLDINGS LIMITED
per: /s/ Xxxxx Xxxxxxx c/s
-----------------------------
Name: Xxxxx Xxxxxxx
Title: President
XXXXXXX SECURITIES INC.
per: /s/ Xxxxx Xxxxxxxxx Xxxxxxx c/s
-----------------------------
Name: Xxxxx Xxxxxxxxx Xxxxxxx
Title: President
- 7 -
Schedule "A"
Assets
Land, and the building located thereon, known municipally as 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxx and more particularly described as Lot 14, south side of Argyle
Avenue, Registered Plan 30 in the City of Ottawa, in the Regional Municipality
of Ottawa-Carleton, Registry Office for the Land Registry Division of Ottawa
Carleton (No. 4).
Allocation of consideration:
Land $313,000
Building $237,000
- 8 -
Schedule "B"
Mortgages
A mortgage in favour of Counsel Trust Company in the principal amount of
$450,000 registered as Instrument No. N455401 on September 6, 1988, which
mortgage was assigned to Sun Life (the "Sun Life Mortgage"). The current balance
outstanding on the mortgage is $351,850.
A mortgage in favour of Xxxxxxx Xxxxx in the principal amount of $85,000
registered as Instrument No. N741420 on May 17, 1996 (the "Nurse Mortgage").
The current balance outstanding on the mortgage is $85,000.
- 9 -
Schedule "C"
Assets Adjusted Estimated Elected Consideration Received Therefor
Cost Base to Fair Market Transfer Price
the Vendor Value for Tax
Purposes**
Mortgages Share Consideration Stated
Assumed Capital of
Shares
Received
------------------------------------------------------------------------------------------------------------------------------------
Land described in Schedule $191,000 $313,000 $199,850 The Sun Life 113,150 First $113,150
"A" hereto Mortgage Preferred Shares in
$351,850 the capital stock
Building described in $237,000 $237,000 $237,000 of the Purchaser
Schedule "A" hereto The Nurse
Mortgage $85,00
------------------------------------------------------------------------------------------------------------------------------------
* undepreciated capital cost
** subject to paragraphs 5 and 6 of this Agreement
- 10 -
Schedule "B"
- 11 -
MEMORANDUM OF AGREEMENT made this 10th day of April, 1997.
BETWEEN:
XXXXXXX SECURITIES INC.
(herein called the "Vendor")
OF THE FIRST PART,
AND:
622291 ONTARIO LIMITED
(herein called the "Purchaser")
OF THE SECOND PART.
WHEREAS the Vendor is the owner of certain assets more particularly
described in Schedule "A" hereto (herein called the "Assets").
AND WHEREAS the Vendor desires to sell to the Purchaser and the Purchaser
desires to purchase from the Vendor all of the Vendor's right, title and
interest in the Assets for a price that represents the current fair market value
of such Assets.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Subject to the terms and conditions herein contained, the Vendor agrees to
sell, assign, deliver and convey, or cause to be sold, assigned, delivered and
conveyed, all its right, title and interest in and to the Assets to the
Purchaser free and clear of all claims, liens and encumbrances whatsoever,
except for those specifically assumed by the Purchaser as described herein. The
Purchaser, in specific reliance on each and every representation and warranty of
the Vendor herein contained, agrees to purchase the said Assets of the Vendor
for a total consideration of $550,000, payable as to the sum of $436,850 by the
assumption of the mortgages more particularly described in Schedule "B" hereto
and, as to the sum of $113,150 by cash. The Vendor and the Purchaser agree that
the consideration shall be allocated among the Assets in accordance with the
allocation set out in Schedule "A" hereto.
2. The Vendor hereby covenants, represents and warrants with and to the
Purchaser that as at the date of this Agreement:
(a) it is the registered and beneficial owner of the said Assets; and
(b) on the date of closing it will be a resident of Canada.
- 12 -
3. The closing date of this Agreement shall be the date hereof.
4. The parties hereto agree that each shall with reasonable diligence proceed
to take all action to do all things and provide reasonable assurances as may be
required to consummate the transaction contemplated herein, and both parties
hereto agree to provide such further documents or instructions required by the
other party as may be necessary to effect the purpose of this Agreement and
carry out its provisions, whether prior to or after closing.
5. This Agreement will be governed by the laws of the Province of Ontario.
6. This Agreement represents the entire understanding of the parties and no
modifications thereof or additions thereto will be binding unless in writing,
having direct reference to this Agreement and executed by all the parties.
7. This Agreement shall enure to the benefit of and be binding upon the parties
hereto, their respective successors and assigns.
In Witness Whereof each of the Vendor and the Purchaser has hereunto affixed
its corporate seal under the hand of its proper officer in that behalf, the day
and year first above written.
XXXXXXX SECURITIES INC.
per: /s Xxxxx Xxxxxxxxx Xxxxxxx c/s
------------------------------
Name: Xxxxx Xxxxxxxxx Xxxxxxx
Title: President
622291 ONTARIO LIMITED
per: /s/ Xxxxx Xxxxxxx c/s
------------------------------
Name: Xxxxx Xxxxxxx
Title: President
- 13 -
Schedule "A"
Assets
Land, and the building located thereon, known municipally as 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxx and more particularly described as Lot 14, south side of Argyle
Avenue, Registered Plan 30 in the City of Ottawa, in the Regional Municipality
of Ottawa-Carleton, Registry Office for the Land Registry Division of Ottawa
Carleton (No. 4).
Allocation of consideration:
Land $313,000
Building $237,000
- 14 -
Schedule "B"
Mortgages
A mortgage in favour of Counsel Trust Company in the principal amount of
$450,000 registered as Instrument No. N455401 on September 6, 1988, which
mortgage was assigned to Sun Life (the "Sun Life Mortgage"). The current balance
outstanding on the mortgage is $351,850.
A mortgage in favour of Xxxxxxx Xxxxx in the principal amount of $85,000
registered as Instrument No. N741420 on May 17, 1996 (the "Nurse Mortgage").
The current balance outstanding on the mortgage is $85,000.
- 15 -
