Exhibit 10.2
DATED DECEMBER 3, 1998
(1) TOUCAN MINING LIMITED
- and -
(2) TOUCAN GOLD CORPORATION INC.
- and -
(3) ANAGRAM LIMITED
- and -
(4) MINMET PLC
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SUPPLEMENTAL AGREEMENT
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MATHESON ORMSBY PRENTICE
SOLICITORS
POUNTNEY HILL HOUSE
6 LAURENCE POUNTNEY HILL
LONDON
EC4R 0BL
TEL: 0171 404 0998
FAX: 0171 583 5644
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THIS AGREEMENT is made the 3rd day of December, 1998.
BETWEEN
(1) TOUCAN MINING LIMITED, a private limited company incorporated under the
laws of the Isle of Man and whose registered office is at Celtic House,
Victoria Street, Douglas, Isle of Man ("the Optionor"); and
(2) TOUCAN GOLD CORPORATION INC., a public limited company incorporated
under the laws of the State of Delaware and whose Principal Executive
Offices are situate at 8201 Preston Road, Suite 600, Dallas, Texas
75225, USA ('the Parent"); and
(3) ANAGRAM LIMITED, a private limited company incorporated under the laws
of the Isle of Man and whose registered office is at Celtic House,
Victoria Street, Douglas, Isle of Man ("the Optionee"); and
(4) MINMET PLC, a public limited company incorporated under the laws of
Ireland and whose registered office is at 10 Fitzwilliam Square, Dublin
2 ("Minmet")
WHEREAS
(A) An Option Agreement was executed between the Optionor, the Parent
and the Optionee on the day of December 1998 (the "Option Agreement") relating
to the grant of an option to the Optionee to purchase the entire issued share
capital of Mineradora de Bauxita Ltda and to acquire the Inter-Company Debt (as
defined in the Option Agreement).
(B) Minmet has agreed to purchase the entire issued share capital of
the Optionee subject to the parties thereto entering into this Supplemental
Agreement so that the Option Agreement is amended in the manner set out herein.
(C) The parties hereby further agree that, save as set out hereunder,
the terms of the Option Agreement shall continue to apply as set out in the
Option Agreement and that the terms defined therein shall have the same meaning
whenever used herein.
NOW IT IS HEREBY AGREED as follows:
1. The terms of the Share Purchase Agreement between the Optionor, the
Parent and the Optionee which is annexed to the Option Agreement in Schedule II
are amended so that:
(a) Clause 3 thereof is deleted and the following clause is
inserted as Clause 3:
"3.1 The consideration for the sale and purchase
hereunder of the Shares (the "Consideration") shall be the
allotment to the Vendor of 25,000,000 ordinary shares (the
"Consideration Shares") in Minmet plc of 10 Fitzwilliam
Square, Dublin 2 ("Minmet").
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3.2 The Vendor covenants and undertakes with Minmet
that it will hold and will not transfer or otherwise dispose
of any Consideration Shares referred to at 3.1 above otherwise
than in accordance with this Clause 3, namely: (i) the Vendor
may sell up to 3,000,000 Consideration Shares in each of the
three 6 month periods after the date hereof, and it is hereby
agreed that any Consideration Shares not disposed of in
earlier periods may be added to those saleable in later
periods, (ii) in addition the Vendor will be free to
distribute such number of Consideration Shares as would equal
the number of shares of the Parent in issue at the time in
each of the second and third six month periods. The Vendor and
Minmet further agree that the Consideration Shares not so
distributed in a second period of six months will be aded to
those available for distribution in the third period of six
months.
3.3 Notwithstanding the provision of Clause 3.2 the
Consideration Shares may be placed through Minmet's brokers in
agreement with Minmet at any time after the date hereof.
Minmet undertakes to act reasonably in respect of all requests
for sale of the Consideration Shares from the Vendor.
3.4 The Consideration Shares allotted hereunder will
rank pari passu in all respects with those ordinary shares of
Minmet in issue on the date hereof, and Minmet agrees and
undertakes to make application and otherwise procure that the
Consideration Shares allotted to the Vendor hereunder shall be
quoted or otherwise dealt in on a pari passu basis as the
other ordinary shares in issue on the date hereof.
3.5
3.5.1 In the event of:
(a) any subdivision, consolidation
or similar reorganisation of the Consideration Shares;
(b) any dividend or other distri-
bution by Minmet, subdivision, consolidation, reorganisation,
repurchase or exchange of the Consideration Shares or other
securities of Minmet or other similar corporate transaction
or event occurring in respect of or affecting the Considera-
tion Shares such that an adjustment is necessary in order to
preserve (as far as possible) the equivalent economic value of
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the rights of the Vendor immediately prior to the relevant
transaction or event, having regard to any diluting or con-
centrating effect of the relevant transaction or event;
the auditors for the time being of Minmet shall certify the
appropriate adjustment to all or any of the Consideration
Shares and their determination shall (save in the case of
manifest error) bind Minmet and the Vendor.
3.5.2 Any adjustment made in accordance with
3.5.1 above shall take effect from the date of the relevant
transaction or event, or, if earlier, the record date for that
transaction or event. Notice of any adjustment shall be sent
to the Vendor within 28 days together with a share certificate
in respect of any additional Consideration Shares to which it
is thereby entitled.
(b) Schedule III thereof is deleted and the provisions set out
in Schedule I hereto are inserted in its place as Schedule III.
2. The terms of the Assignment of Loan Note between the Parent and the
Optionee which is annexed to the Option Agreement in Schedule IV are amended so
that Clause 1 thereof is deleted and the following Clause inserted as Clause 1:
"1 In consideration of the payment of US$250,000 by Minmet plc
of 10 Fitzwilliam Square, Dublin 2, Ireland ("Minmet") to the Vendor
(the receipt of which is hereby acknowledged) and the grant by Minmet
to the Vendor of 7,700,000 warrants in Minmet pursuant to the terms of
the Warrant Instrument attached hereto, the Vendor as beneficial owner
assigns to Minmet all that the Debt due and owing to the Vendor by the
Debtor and all interest due and to become due for the same and the full
benefit and advantage of the same to hold to Minmet absolutely."
The Warrant Instrument referred to above will be in the form of the
Instrument attached hereto and initialed by the parties for identification
purposes.
3. Guarantee
3.1 Minmet hereby guarantees to the Optionor and the Parent
that the Optionee will duly observe and perform all of the obligations on its
part contained in the Option Agreement together with any and all obligations
arising upon the exercise of the Options contained therein and will pay to and
indemnify the Optionor and the Parent as the case may be in respect of all
losses damages expenses and costs resulting from the breach by the Optionee of
such obligations.
3.2 This guarantee shall not be discharged by either the
Optionor or the Parent giving to the Optionee time or other indulgence in
respect of its obligations under the Option Agreement and/or the Share Purchase
Agreement.
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4. Governing Law
This Agreement shall be governed by and construed in all respects in
accordance with the laws of England and Wales and the parties agree to submit to
the non-exclusive jurisdiction of the English Courts as regards any claim or
matter arising in relation to this Agreement.
AS WITNESS the hands of the authorised representative of the parties
hereto the day and year first before written.
TOUCAN MINING LIMITED
By: /s/ R.P. Jeffcock
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R.P. Jeffcock
TOUCAN GOLD CORPORATION
By: /s/ R.P. Jeffcock
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R.P. Jeffcock
ANAGRAM LIMITED
By: /s/ David Walsh
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David Walsh
MINIMET PLC
By: /s/ Michael Nolan
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Michael Nolan
By: /s/ Gordon P. Riddler
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Gordon P. Riddler
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SCHEDULE I
Completion Arrangements for the Share Purchase Agreement
and the Assignment of Loan Note
At Completion:
1. Board Meetings
The Vendor shall procure that a Board Meeting of the Company is duly
convened and held at which valid resolutions are passed:
(a) that the transfers referred to in paragraph 2 below be
approved, and that the Purchaser be forthwith placed on the
register of members of the Company as the holder of the
Shares;
(b) that there be appointed as directors and secretary of the
Company such persons as the Purchaser may nominate;
(c) that the resignations of the directors and secretaries and
auditors referred to in paragraph 2 below be accepted; and
2. A Board Meeting of the Purchaser is duly convened and held at which
valid resolutions are passed:
(a) approving the purchase of the Shares and the entering into of
this Agreement and any other documents to be entered into by
the Purchaser and authorising such persons signing on the
Purchaser's behalf to do so;
(b) that the allotments to the Vendor of the Consideraton Shares
be approved subject to the restrictions on sale contained in
Clause 3.2.
3. Delivery by the Vendor
The Vendor shall deliver to the Purchaser's Solicitors:
(a) copies certified as correct by the Secretary of the Company of
the resolutions passed at the Board Meetings referred to in
paragraph 1 above;
(b) duly executed transfers of the Shares in favour of the
Purchaser or its nominees together with the relevant share
certificates;
(c) any powers of attorney or other authorities under which any
transfers have been executed which shall be duly stamped and
executed;
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(d) the statutory books, certificate(s) of incorporation and of
incorporation on change of name, up to date as at Completion,
and the Common Seal of the Company;
4. Delivery by the Purchaser
The Purchaser shall deliver to the Vendor's solicitors:
(a) Share Certificates in respect of the Consideration Shares; and
(b) certified copies of all board resolutions in relation to the
issue of the Consideration Shares to the Vendor; and
(c) a bank draft for US$250,000; and
(d) warrant certificates in respect of 7,700,000 ordinary shares
in Minmet issued pursuant to the Warrant Instrument.
5. Release of Sureties, etc.
The Vendor shall procure that the Company be released from any
guarantee, surety, indemnity, mortgage, charge or other security given
by it in respect of all or any of the obligations of the Vendor or any
shareholder, director, officer or employee of the Vendor.
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SCHEDULE II
The Option Agreement
(Omitted. See Exhibit 10.3)
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