EXHIBIT 10.16
Trust and Transfer Agent Agreement
REGISTRAR AND TRANSFER AGENT AGREEMENT
THIS AGREEMENT made as of February 26, 2002
BETWEEN:
PACIFIC CORPORATE TRUST COMPANY, a trust company duly
incorporated under the laws of British Columbia having an
office at 625 Howe Street, 10th Floor, Vancouver, British
Columbia, V6C 3B8
(the "Trust Company")
OF THE FIRST PART
AND:
K-Tronik International Corp., a company duly incorporated under
the laws of Nevada, having an office at 2602 - 1111 Beach Ave.,
Vancouver, British Columbia, V6E 1T9
(the "Company")
OF THE SECOND PART
WHEREAS:
A. The Trust Company is a trust company that is authorized to carry on
a trust business under the Financial Institutions Act (British Columbia);
B. The Company wishes to appoint the Trust Company as its registrar and
transfer agent in respect of its common shares (the "Shares") and
the Trust Company has agreed to accept such appointment on the terms
and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the premises and of the covenants and
agreements of the parties set forth in this Agreement, the parties agree
as follows:
1. APPOINTMENT AS REGISTRAR AND TRANSFER AGENT
1.1 Appointment - The Company hereby appoints the Trust Company as its
registrar and transfer agent and the Trust Company hereby accepts the
appointment, upon and subject to the terms of this Agreement.
1.2 Fees and expenses - The Company agrees to pay to the Trust Company:
(a) its fees in effect from time to time as set out in the Trust
Company's Schedule of Fees; and
(b) all costs and expenses, including legal fees if applicable,
incurred by the Trust Company in carrying out its duties under
this Agreement.
1.3 Payment due date - Any invoice rendered to the Company for fees and
expenses of the Trust Company shall be payable within 30 days of the
date of the invoice.
1.4 Schedule of fees - The Trust Company may revise its Schedule of
Fees at any time upon 30 days' prior notice to the Company.
2. SHARE REGISTERS
2.1 Principal Registers - The Trust Company shall maintain the
Company's Register of Members and Register of Transfers (collectively,
the "Principal Registers") in respect of the Shares at its principal
office in Vancouver, British Columbia.
2.2 Information to be provided - The Company agrees to provide the
Trust Company with the information it requires in order to set up and
maintain the Principal Registers. The Company represents and warrants
that such information shall be accurate and complete and the Trust
Company may rely upon the information, without any duty to enquire
further, in establishing and maintaining the Principal Registers.
2.3 Branch registers - Upon the written request of the Company,
authorized by a resolution of the Board of Directors of the Company, the
Trust Company will cause branch registers (the "Branch Registers") to be
maintained by it or by a co-transfer agent as required by law on the
same terms and conditions as the Principal Registers are to be
maintained, with any necessary changes, in cities other than Vancouver.
3. SHARE CERTIFICATES
3.1 Blank certificates - The Company agrees to provide the Trust
Company with blank share certificates, in a form required under its
jurisdiction of incorporation and the rules of the stock exchanges on
which the Company's shares may be listed for trading, as and when
requested to do so by the Trust Company and at the Company's expense.
3.2 Signatures - The share certificates delivered to the Trust Company
shall be signed by a director or other officer or officers of the
Company as required by law, by the constating documents of the Company
or by resolutions of directors of the Company. The signature of such
director, officer or officers on such Share certificates may be
engraved, lithographed or otherwise mechanically reproduced and shall be
binding upon the Company and the certificates so signed will be valid
and binding upon the Company, notwithstanding:
(a) any change in any of the persons holding any such office
between the time of actual signing and the time of
countersigning and issuing of the share certificates, or
b) the director or such other officer or officers signing may
not have held office at the date of countersigning and
issuing the certificates.
3.3 Countersign certificates - The Trust Company is authorized to
countersign certificates representing any Shares issued by the Company
or transferred by a holder of the Shares, upon and subject to receipt of
documentation satisfactory to the Trust Company. The Company agrees
that on and after the date of this Agreement and for so long as this
Agreement remains in force, no certificates for Shares will be issued
or, if issued will not be valid, unless and until countersigned by the
Trust Company in its capacity as registrar and transfer agent of the
Shares or by a co-transfer agent maintaining a Branch Register.
3.4 Validity of prior certificates - The Trust Company is entitled to
treat as valid any certificate or certificates for Shares purporting to
have been issued by or on behalf of the Company prior to the date of
this Agreement. The Trust Company is hereby relieved from any duty or
obligation to verify the signature or the authority to sign of the
person or persons purporting to sign any certificate on behalf of the
Company or on behalf of any other institution previously appointed the
registrar and transfer agent or a branch registrar and transfer agent of
the Shares.
3.5 Replacement certificates - The Trust Company is authorized to issue
and register new certificates in place of the lost, destroyed or stolen
certificates representing any of the Shares upon receipt of:
(a) an authorization signed by any director or officer of the
Company; and
(b) such other documentation as the Trust Company deems
appropriate in the circumstances, including evidence of loss,
destruction or theft and indemnity satisfactory to the Trust
Company.
4. TRANSFERS
4.1 Register transfers - The Trust Company shall register transfers of
the Shares made from time to time in the Principal Registers as may be
necessary in order that the holdings of each shareholder of the Company
may be properly and accurately kept and transfers of Shares properly
recorded.
4.2 Grounds for refusing transfer - The Trust Company may refuse to
effect the transfer of any Shares until such time as the Trust Company
is satisfied that the share certificate presented to the Trust Company
is valid, that the endorsement thereon is genuine and that the transfer
requested has been properly and legally authorized.
4.3 New certificates - The Trust Company shall countersign, if
necessary, and issue new certificates for the Shares upon surrender to
the Trust Company of the outstanding certificates in a form endorsed for
transfer acceptable to the Trust Company.
4.4 Company to provide assistance - The Company shall assist the
Trust Company in identifying signatures of shareholders and guarding
against forgery, illegal transfers and other illegalities.
4.5 Transfers on branch registers - All Shares will be effectively and
interchangeably transferable on the register of transfers or on any
Branch Register regardless of where or when the share certificates have
been issued, and entry of the transfer of any Shares in the register of
transfers or in any Branch Register shall for all purposes be a complete
and valid transfer.
5. DIVIDEND DISBURSING AGENT
5.1 Appointment - The Company appoints the Trust Company as agent to
disburse dividends to the holders of the Shares, which may from time to
time be declared by the Board of Directors of the Company and the Trust
Company hereby accepts such appointment.
5.2 Disbursement by Trust Company - The Trust Company will disburse to
the registered holders of the Shares all cash and stock dividends which
may be declared by the Board of Directors of the Company upon receiving,
at least three business days before each dividend disbursement date, a
certified copy of the resolution of the Board of Directors of the
Company declaring such dividend and, if necessary, a certified cheque in
an amount sufficient for the payment of such dividend.
6. RECORDS
6.1 Maintain records - The Trust Company will maintain such records as
it deems appropriate in connection with acting as registrar and transfer
agent for the Company.
6.2 Delivery of statements to Company - The Trust Company shall furnish
to the Company, at the Company's request and expense, such statements,
lists, entries, information and material concerning transfers and other
matters as may be prepared by it in its capacity as registrar and
transfer agent of the Company.
6.3 Delivery of books and records - The Trust Company shall send to
the Company, or to such other person as the Company may direct, all
books, documents and other records in its possession relating to the
Company following the termination of this Agreement and the payment of
all amounts owing to the Trust Company pursuant to this Agreement. A
receipt signed on behalf of the Company by any director or officer of
the Company or the person referred to in the Company's direction shall
be a valid acknowledgment and discharge to the Trust Company of the
items delivered.
6.4 Destruction of certificates - The Trust Company is authorized to
destroy certificates representing Shares which have been cancelled,
together with any related transfer documentation, six years after the
date of cancellation. All actions taken by the Trust Company under this
section shall be at the expense of the Company.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
7.1 Representations and warranties - The Company represents and
warrants to the Trust Company that:
(a) the Company has due and sufficient right and authority to
enter into this Agreement on the terms and conditions herein
set forth and all necessary action has been taken by or on the
part of the Company to authorize the execution and delivery of
this Agreement and all other documents contemplated hereby;
(b) the Company is authorized by its constating documents to
maintain a branch register of members in British Columbia and,
if applicable, outside of British Columbia; and
(c) the Company has given or will give all notices required by law
to give notice of the appointment of the Trust Company as its
registrar and transfer agent.
7.2 Covenants - The Company agrees to promptly deliver to the Trust
Company from time to time:
(a) certified copies of its constating documents and any
amendments to such documents;
(b) copies of all relevant documents and proceedings relating to
increases and reductions in the Company's capital, the
reorganization of or change in its capital, a change in the
Company's name, the bankruptcy or winding up of the Company or
the surrender of its charter;
(c) a certificate of incumbency showing the names and offices of
the Company's directors and officers, including specimens of
the signatures of those directors and officers authorized to
sign share certificates and treasury orders and authorized to
instruct the Trust Company; and
(d) all other documents reasonably requested by the Trust Company.
7.3 Legal opinion - The Company shall deliver to the Trust Company a
legal opinion from its legal counsel relating to the appointment of the
Trust Company as its registrar and transfer agent in a form satisfactory
to the Trust Company. The Trust Company in its sole discretion may
waive this requirement if the Company has completed its Initial Public
Offering.
8. LIMITATIONS ON RESPONSIBILITY
8.1 Consultation - The Trust Company may, at any time, apply to the
Company for instructions and may consult counsel for the Company or its
own counsel in respect of any matter arising in connection with this
Agreement. The Company will indemnify and hold harmless the Trust
Company from any liability or claims that may be made against it for any
action taken, or not taken, by the Trust Company in accordance with or
pursuant to such instructions or advice that may be given to it.
8.2 No constructive notice - The Trust Company shall not be held to
have notice of any change of authority of any director, officer,
employee or agent of the Company until it receives written notification
of such change from the Company.
8.3 Compliance with laws - The Trust Company is authorized to comply
with any law, regulation, or order now or hereafter in force which
purports to impose on the Trust Company a duty to take or refrain from
taking any action.
9. INDEMNITY
9.1 Indemnify Trust Company - The Company hereby indemnifies and
agrees to hold harmless and defend the Trust Company, its directors,
officers, employees and agents, against any and all claims and
liabilities, whether accrued, absolute, contingent or otherwise and
any and all actions, suits, proceedings, demands, assessments,
judgments and costs, including without limitation legal costs on a
solicitor and own client basis, arising out of or in respect of the
performance by the Trust Company of its duties under this Agreement;
provided, however, that the Trust Company shall not be indemnified
against, or be reimbursed for any expense incurred in connection with
any claim or liability arising out of its wilful misconduct or gross
negligence.
9.2 Defend actions - The Trust Company is under no obligation to
prosecute or defend any action or suit in respect of the relationship
which, in the opinion of its legal counsel, may involve it in expense
or liability, but will do so at the request of the Company provided
that the Company furnishes it with an indemnity satisfactory to the
Trust Company against such expenses or liability.
9.3 Post collateral - The Company will post collateral or other
documentation which is sufficient in the opinion of the Trust Company
or its counsel to secure the indemnity herein provided.
10. TERMINATION OF AGREEMENT
10.1 Failure to pay - In the event that any payment required to be made
by the Company remains unpaid 14 days after the Trust Company has made a
written demand for payment, the Trust Company may terminate this
agreement, effective on the date that a termination notice is provided
to the Company.
10.2 Notice - Subject to section 10.1, this Agreement will continue in
effect until terminated by written notice given by either party to the
other party. The effective date of the termination shall be the date
which is 30 days after the date of the notice of termination, unless the
parties otherwise mutually agree upon a different date.
10.3 Payment by Company - The Company agrees to pay to the Trust
Company, on or before the effective date of the termination of this
Agreement:
(a) all accrued but unpaid fees or expenses of the Trust Company;
and
(b) the Trust Company's published termination fee in effect as at
the date of termination in order to provide for the Trust
Company's expenses relating to subsequent enquiries and
correspondence on behalf of the Company.
The Company agrees that the amount provided for in paragraph (b) is
reasonable in the circumstances.
10.4 Delivery of books and records - Following the termination of this
Agreement, the Trust Company shall send to the Company, or to such other
person as the Company may direct, all books, documents and other records
in its possession relating to the Company in accordance with section 6.3.
11. GENERAL
11.1 Time - Time is of the essence of this Agreement.
11.2 Assignment - This Agreement may be assigned by the Trust Company,
without the prior consent of the Company, to another registrar and
transfer agent upon 60 days prior notice to the Company.
11.3 Amendments - This Agreement may only be amended by a further
written agreement executed and delivered by both parties to this Agreement.
11.4 Governing Law - This Agreement will be governed by, construed and
enforced in accordance with the laws of the Province of British Columbia
and the parties hereto submit and attorn to the exclusive jurisdiction
of the courts of the Province of British Columbia.
11.5 Severability - If any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any
respect in any jurisdiction, the validity, legality and enforceability
of such provision or provisions will not in any way be affected or
impaired thereby in any other jurisdiction and the validity, legality
and enforceability of the remaining provisions contained herein will not
in any way be affected or impaired thereby, unless in either case as a
result of such determination this Agreement would fail in its essential
purpose.
11.6 Notice - Any notice under this Agreement must be in writing,
delivered, telecopied or mailed by prepaid post, and addressed to the
party to which notice is to be given at the address for such party
indicated herein or at another address designated by such party in
writing.
Notice which is delivered or telecopied will be deemed to have been given
at the time of transmission or delivery. If notice is by mail it will be
deemed to have been given five business days following the date of
mailing. If there is an interruption in normal mail service at or prior
to the time a notice is mailed, the notice must be delivered or telecopied.
11.7 Further assurances - The parties to this Agreement will with
reasonable diligence do all such things and provide all such reasonable
assurances as may be required to consummate the transactions
contemplated by this Agreement, and each party to this Agreement will
execute and deliver such further documents or instruments required by
the other party as may be reasonably necessary or desirable for the
purposes of giving effect to or perfecting the transactions contemplated
by this Agreement.
11.8 Enurement - This Agreement and each of its terms and provisions
will enure to the benefit of and be binding upon the parties to this
Agreement and their respective successors and assigns.
IN WITNESS WHEREOF this Agreement has been executed as of the day and
year first above written.
The CORPORATE SEAL of )
PACIFIC CORPORATE TRUST COMPANY )
was hereunto affixed in the )
presence of: )
C/S
/s/ Marc Castonguay )
)
/s/ Norm Hamade )
The CORPORATE SEAL of )
K-Tronik International Corp. )
was hereunto affixed in the )
presence of: )
/s/ Robert Kim )