AGREEMENT MEMORANDUM OF AGREEMENT ENTERED INTO BY AND BETWEEN: ODYSSEY OIL & GAS, INC. A Florida, USA registered Corporation (“Odyssey”) And ALG BIO OILS LIMITED. (“ALG” or “The Company”) And Bio Oils Trust A Cyprus Trust (“Trust”)
MEMORANDUM
OF AGREEMENT ENTERED INTO BY AND BETWEEN:
ODYSSEY
OIL & GAS, INC.
A
Florida, USA registered Corporation
(“Odyssey”)
And
ALG
BIO OILS LIMITED.
(“ALG”
or
“The Company”)
And
Bio
Oils Trust
A
Cyprus
Trust
(“Trust”)
PREAMBLE:
AND
WHEREAS the parties have agreed to enter into a final Agreement between the
parties;
NOW
THEREFORE IT IS AGREED AS FOLLOWS:
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a.
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b.
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c.
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Odyssey
shall transfer to Trust 25 million (twenty five million) common rule
144
shares in Odyssey Oil & Gas, Inc., on the successful commissioning of
the pilot plant.
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d.
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Odyssey
shall transfer to Trust 25 million (twenty five million) common rule
144
shares in Odyssey Oil & Gas, Inc., on the ordering of the commercial
plant.
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e.
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Odyssey
shall transfer to Trust 25 million (twenty five million) common rule
144
shares in Odyssey Oil & Gas, Inc., on the commissioning of the
commercial plant.
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Trust
shall transfer to Odyssey 100% (one hundred percent) of the Issued share capital
in ALG. These shares to be held in trust by Attorneys Maartens Van Rensburg
until the payment of a. above at which time they shall be handed over to
Odyssey.
2
| 1. |
INTERPRETATION
AND PRELIMINARY
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The
headings of the clauses in this agreement are for the purpose of convenience
and
reference only and shall not be used in the interpretation of nor modify nor
amplify the terms of this agreement nor any clause hereof. In this agreement,
unless a contrary intention clearly appears:
| 1.1 |
words
importing:
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1.1.1 any
one
gender include the other two genders;
1.1.2 the
singular include the plural and vice versa; and
| 1.1.3 |
natural
persons include created entities (corporate or non-incorporate) and
vice
versa;
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1.2
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the
following terms shall have the meanings assigned to them hereunder
and
cognate expressions shall have corresponding meanings,
namely:
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1.2.1 “the
Company” as defined in the description of the parties above;
| 1.2.2 |
“the
Controlling Shareholder” means in respect of any company which may be or
become a shareholder in the Company and of which its shareholding
in the
Company is its major asset, the registered holders of the controlling
common shares in such company or controlling interest in such close
corporation, as the case may be, as at the date on which that company
acquires or is allotted common shares
in the Company;
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1.2.3 an
“Immediate Relation” of a shareholder means a person who is:
1.2.3.1 that
shareholder’s spouse;
1.2.3.2 a
child
(including an adopted child) of that shareholder;
| 1.2.4 |
“the
Shareholders” means the shareholders in the Company from time to
time;
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1.3
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any
reference to an enactment is to that enactment as at the date of
signature
hereof and as amended or re-enacted from time to
time;
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1.4
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if
any provision in a definition is a substantive provision conferring
rights
or imposing obligations on any party, notwithstanding that it is
only in
the definition clause, effect shall be given to it as if it were
a
substantive provision in the body of the
agreement;
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3
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1.5
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when
any number of days is prescribed in this agreement, same shall reckoned
exclusively of the first and inclusively of the last day unless the
last
day falls on a Saturday, Sunday or public holiday, in which case
the last
day shall be the next succeeding day which is not a Saturday, Sunday
or
public holiday;
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1.6
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where
figures are referred to in numerals and in words, if there is any
conflict
between the two, the words shall
prevail;
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| 1.7 |
expressions
defined in this agreement shall bear the same meanings in schedules
or
annexures to this agreement which do not themselves contain their
own
definitions.
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| 2. |
SHAREHOLDING
IN THE COMPANY
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2.1
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Forthwith
after the signing of this agreement the parties shall cause the Company
to
sign all documentation to effect the following in respect of the
Company:
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| 2.1.1 |
The
name of the Company shall be ALG BIO OILS LIMITED.
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2.1.2
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The
Authorized share capital of the Company will be 1,000
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(one
thousand) Ordinary Shares.
| 2.1.3 |
The
issued share capital of the Company will be 1,000 (One thousand)
Ordinary
Shares.
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| 2.1.4 |
The
main object and business of the Company will be to acquire and operate
a
bio fuel plant and will be described in the Articles of Incorporation
of
the Company as at date of
incorporation.
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2.1.5 The
auditors of the Company initially will be Xxxxxx Xxxxxx Auditors
| 2.1.6 |
The
registered office of the Company initially will be the registered
address
of the Company as at date of
incorporation.
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| 2.1.7 |
The
remaining terms of the Articles of Incorporation of the Company and
the
By-laws of the Company will be the Articles and Incorporation and
By-laws
as at date of incorporation, read simultaneously with the stipulations
of
this Shareholders’ Agreement.
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| 2.1.8 |
ALG
BIO OILS LIMITED is the 100% (one hundred percent) shareholder of
ALG
Western Oil (Pty) Ltd
(2006/035439/07).
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4
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2.2
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Within
14 (FOURTEEN) days after the date of signature of this Agreement
-
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| 2.2.1 |
the
parties shall be obliged to procure that the Company ratifies and
adopts
in writing the provisions of this agreement and that the shares referred
to in clauses 2.1.3 are duly allotted and issued against payment
of the
necessary subscription price into the name of
Odyssey;
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| 3. |
CONFLICTS
WITH MEMORANDUM AND/OR ARTICLES OF INCORPORATION
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3.1
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The
Shareholders undertake forthwith hereafter to take all such steps
and do
all such things as may be necessary to alter the articles of incorporation
and By-Laws of the Company so as to reflect, insofar as may be
appropriate, the provisions of this
agreement.
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3.2
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Notwithstanding
the provisions of clause 3.1 until such time as the articles of
incorporation and By-Laws of
the Company are amended as aforesaid, if there is any conflict between
the
provisions of this agreement and the memorandum and articles of
association of the Company at any time, the provisions of this agreement
shall prevail.
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| 4. |
APPOINTMENT
OF DIRECTORS
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Odyssey
shall be entitled by written notice to the company to appoint 2 (TWO) directors
of the Company and Trust shall be entitled by written notice to the company
to
appoint 2 (TWO) directors of the Company. Such shareholder shall be entitled
to
remove any such director appointed and to replace any such director who is
so
removed or who ceases for any other reason to be a director of the Company.
No
person other than a Shareholder or its nominee may be appointed as a director
without the prior written approval of the other Shareholders, which undertake
not to withhold such approval unreasonably.
| 5. |
QUORUM
FOR DIRECTORS’ MEETINGS
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The
quorum for any directors’ meetings of the Company shall be 2 (TWO) directors or
the alternate(s) of any such directors.
5
| 6. |
QUORUM
FOR SHAREHOLDERS’ MEETINGS
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The
quorum for shareholders’ meetings of the Company shall be the Odyssey present in
person or by proxy: Provided that if, within 30 (THIRTY) minutes from the time
appointed for a meeting, a quorum is not present, the meeting shall stand
adjourned to the same day in the next week, at the same time and place or,
if
that day be a public holiday, to the next succeeding day other than a Saturday,
Sunday or public holiday and if, at such adjourned meeting, a quorum is not
present within 30 (THIRTY) minutes from the time appointed for the meeting,
the
Shareholders then present in person or by proxy shall be a quorum.
| 7. |
PRESIDING
CHAIRMAN OF MEETING
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Odyssey
shall appoint the person to preside as the chairman of any shareholders’ or
directors’ meeting. Such chairman shall not have a casting vote.
| 8. |
RESOLUTIONS
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8.1
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Resolutions
of directors of the Company in order to be of force and effect must
be
approved by the majority of the directors present at a
meeting.
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8.2
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Resolutions
of Shareholders of the Company (other than special resolutions) in
order
to be of force and effect must be approved by the majority of the
Shareholders of the Company present at any meeting in person or by
proxy.
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| 9. |
DEADLOCK
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9.1
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If
in terms of the aforegoing provisions, the required majority for
the
passing of a directors’ resolution cannot be obtained, such particular
resolution only shall cease ipso
facto
to
be within the directors’ domain and shall be put to the
Shareholders.
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9.2
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If
in terms of the aforegoing provisions there is a deadlock between
the
Shareholders a dispute shall be deemed to exist between the Shareholders,
which shall be dealt with as contemplated in clause 10.3. Any such
deadlock shall not constitute a ground for the winding up of the
Company.
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6
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9.3
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Any
dispute between the Shareholders shall be submitted to informal
arbitration on the following basis:
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| 9.3.1 |
The
parties shall use their best endeavors to ensure that the arbitration
is
held and concluded and a decision handed down within 14 (FOURTEEN)
days
after the arbitration has been
demanded.
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| 9.3.2 |
The
arbitrator shall be a person nominated by the parties or failing
agreement
between them within 14 (FOURTEEN) days after the arbitration has
been
demanded shall be a person appointed by the president for the time
being
of the arbitration foundation with
jurisdiction.
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| 9.3.3 |
The
arbitrator shall have the fullest and freest discretion with regard
to the
proceedings but shall make his decision in the best interests of
the
Company.
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| 9.3.4 |
The
arbitrator’s decision shall be deemed to be a resolution of the
Shareholders and shall be final and binding. The arbitrator may make
an
award as to his costs.
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Pending
the outcome of any arbitration, in the interim period, insofar as concerns
the
disputed resolution, the Company’s auditors shall determine in their sole and
absolute discretion (acting as experts and not as arbitrators, their decision
being final and binding on the parties) how the business of the Company should
be conducted for that interim period.
| 10. |
PRE-EMPTIONS
AND TRANSFERS OF ORDINARY
SHARES
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10.1
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Unless
otherwise agreed in writing by all the Shareholders of the Company,
a
Shareholder may sell or otherwise dispose of the ordinary shares
held by
it in the Company only in terms of this clause 10 and only if, in
one and
the same transaction, it likewise sells, disposes of or alienates
a
pro
rata
ordinary share
of its claim against the Company on loan account (“the Loan Account”).
Furthermore the provisions of this clause 10 shall also apply mutatis
mutandis
to
any rights offers or allotments made to any ordinary Shareholders.
Accordingly, all references in this clause 10 and in the lien,
transmission and forfeiture provisions of the articles of association
of
the Company to the offer, sale, disposal, alienation, transfer or
transmission of a ordinary share
in the Company shall, unless the context otherwise requires, be deemed
to
apply also to the pro
rata
share of the Loan Account of the holder of such ordinary share
and to any rights offers or
allotments.
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10.2
| 10.2.1 |
When
it is intended to dispose of the ordinary shares
of a Shareholder (other than in terms of clause 10.2), the disposer
shall
offer the ordinary shares
in writing to Trust, stating the price (which shall sound in money
in
South African currency) and the terms of payment required by it and
no
other terms shall be stipulated save for that contemplated in clause
10.7
and if it intends selling to a particular third party if the offer
is not
accepted by Trust, it shall disclose the name of such third
party.
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| 10.2.2 |
If,
within 7 (SEVEN) days after the receipt of the offer (during which
period
the offer shall be irrevocable), it is not accepted in writing in
respect
of all the shares offered, by Trust, the disposer may, within a further
7
(SEVEN) days, but not thereafter: Provided that the offeree Trust
has
consented in writing to the disposal of the ordinary shares (on the
basis
set out hereafter) to the named third party (which consent Trust
undertakes shall not be unreasonably withheld by it), dispose of
the
ordinary shares
offered (but not fewer) to the third party only, at a price not lower
and
on terms not more favourable to such person than the price and terms
at
and on which Trust was entitled to purchase them. If Trust fails
or
refuses unreasonably to consent in writing to the disposal to the
named
third party, the disposer shall not be entitled to require the Company
to
be wound up.
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10.3
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Any
disposal of ordinary shares
to any non-shareholder of the Company shall be subject to the condition
that the transferee shall undertake in writing not to operate in
competition with the business of the Company, whilst it is a
Shareholder.
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10.4
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Subject
to clause 10.7, transfer of any ordinary shares
acquired in terms of this clause 10 shall be given to the person
so
acquiring them.
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10.5
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Except
as provided in clauses 10.2, 10.3, or in any written agreement in
force
between all the Shareholders, no share may be disposed of, pledged
or
transferred without the written consent of all Shareholders or the
sanction of a resolution passed unanimously at a meeting at which
all
Shareholders were present or
represented.
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10.6
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Notwithstanding
anything to the contrary herein contained, no ordinary share
shall be transferred to a non-shareholder including the heirs or
beneficiaries of any Shareholder unless it agrees to be bound by
any
written agreement in force between the Company and its Shareholders
and/or
between the Shareholders governing their relationship as Shareholders
in
the Company and nominates a domicilium
citandi et executandi
for the purposes of clause 17.
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| 11. |
BLANK
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| 12. |
CAPITAL
AND LOAN ACCOUNTS
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12.1
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The
amount of funding required from time to time by the Company shall
be
determined by the board of directors of the
Company.
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12.2
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All
funding required from time to time as determined in accordance with
the
provisions of clause 12.1, after having regard to such funding as
is made
available to the Company from outside sources.
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12.3
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Save
as may be otherwise determined by all the Shareholders of the Company
in
writing, shareholders’ Loan Accounts against the Company shall be subject
to the following terms and
conditions:
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| 12.3.1 |
Subject
to clause 12.4, they shall bear interest at the publicly quoted basic
rate
per annum ruling from time to time at which Bank of America lends
on
overdraft, compounded monthly in
arrear.
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| 12.3.2 |
Subject
to clauses 12.3.3 and subject to the availability of funds of the
Company,
they shall be repaid as may be agreed from time to time between the
Company and all its Shareholders.
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| 12.3.3 |
They
shall in any event be repaid on the granting of any order (whether
provisional or final) placing the Company under judicial management
or in
liquidation.
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9
| 13. |
DIVIDENDS
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The
Shareholders shall procure that the Company shall (subject to its present and
reasonably anticipated future requirements of working and expansion capital
and
provided that the Company does not borrow funds in excess of its funding policy
and gearing ratio from time to time to enable it to pay the dividend) declare
and pay dividends as decided by the directors from time to time of the
distributable profits of the Company (for which purpose secondary tax on
companies in respect of the dividend in question shall be taken into account
in
determining the amount of the distributable profits) in each of its financial
years which declaration and payment shall be made within 60 (SIXTY) days after
the end of each financial year.
| 14. |
INSPECTION
OF BOOKS AND RECORDS
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The
books
of account and other books and documents of the Company shall be kept at the
registered office, and, subject to any reasonable restrictions as to the time
and manner of inspecting the same that may be imposed by a resolution of the
members of the Company in general meeting, shall be open to the inspection
of
the members during the hours of business.
| 15. |
QUASI-PARTNERSHIP
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Shareholders
shall owe to each other a duty of good faith at all times. Their relationship
shall be construed as that of quasi-partners.
| 16. |
WHOLE
AGREEMENT, NO AMENDMENT
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16.1
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This
agreement constitutes the whole agreement between the parties relating
to
the subject matter hereof.
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16.2
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No
amendment or consensual cancellation of this agreement or any provision
or
term thereof or of any agreement, xxxx of exchange or other document
issued or executed pursuant to or in terms of this agreement and
no
settlement of any disputes arising under this agreement and no extension
of time, waiver or relaxation or suspension of any of the provisions
or
terms of this agreement or of any agreement, xxxx of exchange or
other
document issued pursuant to or in terms of this agreement shall be
binding
unless recorded in a written document signed by the parties. Any
such
extension, waiver or relaxation or suspension which is so given or
made
shall be strictly construed as relating strictly to the matter in
respect
whereof it was made or given.
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10
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16.3
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No
extension of time or waiver or relaxation of any of the provisions
or
terms of this agreement or any agreement, xxxx of exchange or other
document issued or executed pursuant to or in terms of this agreement,
shall operate as an estoppel against any party in respect of its
rights
under this agreement, nor shall it operate so as to preclude such
party
thereafter from exercising its rights strictly in accordance with
this
agreement.
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16.4
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No
party shall be bound by any express or implied term, representation,
warranty, promise or the like not recorded herein, whether it induced
the
contract and/or whether it was negligent or
not.
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| 17. |
DELIVERY
ADDRESS
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| 17.1 |
The
parties choose as their delivery address for all purposes under this
agreement, whether in respect of court process, notices or other
documents
or communications of whatsoever nature (including the exercise of
any
option), the following addresses:
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| 17.1.1 |
Odyssey
Oil & Gas, Inc.
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00
Xxxxxx
Xxxxxx
Xxxxxxx,
0000
Xxxxx
Xxxxxx
Telephone:
x00
(00)
000-0000
Fax: x00
(00)
000-0000
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17.1.2
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Trust
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Limossol
Cyprus
Telephone:
Fax:
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17.1.3
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The
Company:
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00
Xxxxxxxxxxx Xxxxx
Xxxxxxxxxx
0000
Xxxxx
Xxxxxx
Telephone: x00
(00)
000-0000
Fax: +27
(12)
348=3565
11
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17.2
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Any
notice or communication required or permitted to be given in terms
of this
agreement shall be valid and effective only if in writing but it
shall be
competent to give notice by
telefax.
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17.3
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Any
party may by notice to any other party change the physical address
chosen
as its delivery address for notices
vis-à-vis
that party to another physical address, or its telefax number: Provided
that the change shall become effective vis-à-vis
that addressee on the 10th business day from the deemed receipt of
the
notice by the addressee.
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| 17.4 |
Any
notice to a party:
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| 17.4.1 |
sent
by prepaid registered post (by airmail if appropriate) in a correctly
addressed envelope to it at its delivery address shall be deemed
to have
been received on the 10th business day after posting (unless the
contrary
is proved);
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| 17.4.2 |
delivered
by hand to a responsible person during ordinary business hours at
its
delivery address shall be deemed to have been received on the day
of
delivery; or
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| 17.4.3 |
sent
by telefax to its chosen telefax number stipulated in clause 24.1,
shall
be deemed to have been received on the date of despatch (unless the
contrary is proved).
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| 17.5 |
Notwithstanding
anything to the contrary herein contained a written notice or
communication actually received by a party shall be an adequate written
notice or communication to it notwithstanding that it was not sent
to or
delivered at its chosen delivery
address.
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| 18. |
COSTS
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The
costs
of and incidental to the drawing and preparation of this agreement shall be
borne by the parties equally.
12
SIGNED
at
Pretoria on this 16th day of June 2008
Witnesses:
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1.
_________________________
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2.
_________________________
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By:/s/
X.X. Xxxxxxx :President
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(Signatures
of witnesses)
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(Signature
of Odyssey)
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SIGNED
at
Pretoria on this 16th day of June 2008
Witnesses:
|
1.
_________________________
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||
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2.
_________________________
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By:/s/Xxxx
Xxxxxxxxxx
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(Signatures
of witnesses)
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(Signature
of Trust)
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SIGNED
at
Pretoria on this 16th
day of
June 2008
Witnesses:
|
1.
_________________________
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||
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2.
_________________________
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By:/s/Xxxx
Xxxxxxxxxx: Chairman
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(Signatures
of witnesses)
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(Signature
for ALG)
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13
