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Exhibit 2.1
SCHEDULE "B"
AMALGAMATION AGREEMENT
THIS AGREEMENT is made as of May 27, 1998.
BETWEEN:
Temba Resources Ltd., a corporation incorporated under the laws of the
Province of Alberta ("Temba")
- and -
PTR Resources Ltd. (formerly Ablevest Holdings Ltd.), a corporation
incorporated under the laws of the Province of Alberta ("Ablevest")
WHEREAS Temba was incorporated under the Business Corporations Act
(Alberta) by articles of incorporation dated July 31, 1996 and as of May 27,
1998, 10,363,500 Common Shares of Temba are issued and outstanding as fully paid
and non-assessable;
WHEREAS Ablevest was incorporated under the Business Corporations Act
(Alberta) by articles of incorporation dated September 18, 1992 and 26,494,915
Common Shares of Ablevest are issued and outstanding as fully paid and
non-assessable;
AND WHEREAS Temba and Ablevest propose to amalgamate and continue as one
corporation;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
covenants and agreements herein contained the parties hereto agree as follows:
1. Temba and Ablevest shall amalgamate (the "Amalgamation"), pursuant to the
provisions of the Business Corporations Act (Alberta) (the "ABCA"), and continue
as one corporation (hereinafter referred to as the "Amalgamated Corporation")
upon and subject to the terms and conditions and in the manner hereinafter set
out.
2. The Amalgamation shall become effective upon the Certificate of
Amalgamation in respect hereof being issued under and pursuant to the ABCA and
the date of such Certificate of Amalgamation shall be the "Effective Date". As
of the date of this Agreement, the parties hereto anticipate that the Effective
Date shall be June 30, 1998.
3. On the Effective Date:
(a) the property, assets, rights and privileges of each of Temba and
Ablevest shall continue to be the property, assets, rights and
privileges of the Amalgamated Corporation; and
(b) the Amalgamated Corporation shall continue to be liable for all of the
contracts, liabilities, debts and obligations of each of Temba and
Ablevest.
4. The Amalgamation shall not become effective unless on or prior to the
Effective Date:
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(a) the shareholders of each of Temba and Ablevest shall have passed
special resolutions approving the Amalgamation; and
(b) all conditions precedent to the Amalgamation contained in this
Agreement are satisfied or waived, where applicable, by the
appropriate party.
5. The name of the Amalgamated Corporation shall be "Westlinks Resources
Ltd.".
6. The registered office of the Amalgamated Corporation shall be located in
the City of Calgary in the Province of Alberta and the address of the
Amalgamated Corporation shall be 3300, 421 - 7th Avenue S.W., Calgary, Alberta
T2P 4K9.
7. The number of directors of the Amalgamated Corporation shall be a
minimum of three (3) and a maximum of ten (10) and the following six (6) persons
shall be the first directors:
<TABLE>
<CAPTION>
NAME RESIDENTIAL ADDRESS RESIDENT CANADIAN
---- ------------------- -----------------
<S> <C> <C>
Peter R. Sekera 46 Panorama Hills Place N.W. Yes
Calgary, Alberta T3K 4R9
Thomas S. Bamford 605, 505 - 6th Street S.W. Yes
Calgary, Alberta T2P 1X5
Ross O. Drysdale 39 Edcath Road N.W. Yes
Calgary, Alberta T3A 4A2
Dale N. Fisher 1129 Lansdowne Avenue S.W. Yes
Calgary, Alberta T2S 1A4
Edward C. McFeely 31 Strathroy Bay S.W. Yes
Calgary, Alberta T3H 1H2
David Laws 8702, 400 Eau Claire Avenue S.W. Yes
Calgary, Alberta T2P 4X2
</TABLE>
8. There shall be no restrictions on the transfer of shares of the
Amalgamated Corporation.
9. There shall be no restrictions on the business the Amalgamated Corporation
may carry on or on the powers the Amalgamated Corporation may exercise.
10. The Amalgamated Corporation shall be authorized to issue an unlimited
number of common shares ("Common Shares") and an unlimited number of first
preferred shares ("First Preferred Shares"), issuable in series.
11. The rights, privileges, restrictions and conditions attaching to the Common
Shares and First Preferred Shares of the Amalgamated Corporation are as follows:
A. The rights, privileges, restrictions and conditions attaching to the
Common Shares are as follows:
(a) Payment of Dividends: The holders of the Common Shares shall be
entitled to receive dividends if, as and when declared by the board of
directors of the Amalgamated Corporation out of the assets of the
Amalgamated Corporation properly applicable to the payment of
dividends in such amounts and payable in such manner as the board of
directors may from time to time determine. Subject to the rights of
the
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holders of any other class of shares of the Amalgamated Corporation
entitled to receive dividends in priority to or rateably with the
holders of the Common Shares, the board of directors may in their sole
discretion declare dividends on the Common Shares to the exclusion
of any other class of shares of the Amalgamated Corporation.
(b) Participation upon Liquidation, Dissolution or Winding-Up: In the
event of the liquidation, dissolution or winding-up of the Amalgamated
Corporation or other distribution of assets of the Amalgamated
Corporation among its shareholders for the purpose of winding-up its
affairs, the holders of the Common Shares shall, subject to the rights
of the holders of any other class of shares of the Amalgamated
Corporation entitled to receive the assets of the Amalgamated
Corporation upon such a distribution in priority to or rateably with
the holders of the Common Shares, be entitled to participate rateably
in any distribution of the assets of the Amalgamated Corporation.
(c) Voting Rights: The holders of the Common Shares shall be entitled to
receive notice of and to attend all annual and special meetings of the
shareholders of the Amalgamated Corporation and to 1 vote in respect
of each Common Share held at all such meetings.
B. The rights, privileges, restrictions and conditions attaching to the
First Preferred Shares are as follows:
(a) Series: The First Preferred Shares may at any time and from time to
time be issued in one or more series. Subject to the provisions of
this clause B(a), the board of directors may from time to time fix the
number of shares in,and determine the designation, rights, privileges,
restrictions and conditions attaching to the shares of, each series of
First Preferred Shares, including, without limiting the generality of
the foregoing, the rate, amount or method of calculation of dividends
thereon, the time and place of payment of dividends thereon, the
conditions for and the terms and conditions of any purchase for
cancellation, retraction or redemption thereof, conversion or exchange
rights (if any), and whether into or for securities of the Amalgamated
Corporation or otherwise, voting rights attached thereto (if any), the
terms and conditions of any share purchase or retirement plan or
sinking fund, and restrictions on the payment of dividends on any
shares other than First Preferred Shares or payment in respect of
capital on any shares in the capital of the Amalgamated Corporation or
creation or issue of debt or equity securities; the whole subject to
filing with the Registrar (as defined in the Business Corporations Act
(Alberta) or any successor legislation thereto) of articles of
amendment setting forth a description of such series including the
designation, rights, privileges, restrictions and conditions attached
to the shares of such series.
(b) Ranking of the First Preferred Shares: The First Preferred Shares of
each series shall rank on a parity with the First Preferred Shares of
every other series with respect to declared or accumulated dividends
and return of capital. The First Preferred Shares shall be entitled to
a preference over the Common Shares and over any other shares of the
Amalgamated Corporation ranking junior to the First Preferred Shares
with respect to priority in the payment of dividends and in the
distribution of assets of the Amalgamated Corporation in the event of
the liquidation, dissolution or winding-up of the Amalgamated
Corporation, whether voluntary or involuntary, or any other
distribution of the assets of the Amalgamated Corporation among its
shareholders for the purpose of winding-up its affairs. If any
declared or cumulative dividends or amounts payable on a return of
capital are not paid in full, the First Preferred Shares of all series
shall participate rateably in respect of such dividends, including
accumulations, if any, in accordance with the sums that would be
payable on such shares if all such dividends were declared and paid
in full, and in respect of any repayment of capital in accordance with
the sums that would be payable on such repayment of capital if all
sums so payable were paid in full; provided, however, that in the
event of there being insufficient assets to satisfy in full all such
claims as aforesaid, the claims of the holders of the First Preferred
Shares with respect to repayment of capital shall first be paid and
satisfied and any assets remaining thereafter shall be applied towards
payment in satisfaction of claims in respect of
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dividends. The First Preferred Shares of any series may also be given
such other preferences not inconsistent with clauses (a) to (e) hereof
over any other shares ranking junior to the First Preferred Shares as
may be determined in the case of such series of First Preferred
Shares.
(c) Voting Rights: Except as hereinafter referred to or as required by
law or in accordance with any voting rights which may from time to
time be attached to any series of First Preferred Shares, the holders
of First Preferred Shares as a class shall not be entitled as such to
receive notice of, to attend or to vote at any meeting of the
shareholders of the Amalgamated Corporation. The holders of the First
Preferred Shares shall, however, be entitled to notice of meetings of
the shareholders called for the purpose of authorizing the voluntary
liquidation and dissolution of the Amalgamated Corporation or the sale
of its undertaking or a substantial part thereof under subsection
204(3) or subsection 183(4) of the Business Corporations Act (Alberta)
as now enacted or as the same may from time to time be amended,
re-enacted or replaced.
(d) Changes to Class Rights: The rights, privileges, restrictions and
conditions attaching to the First Preferred Shares as a class may be
added to, changed or removed but only with the approval of the holders
of the First Preferred Shares given as herein specified.
(e) Approval of Changes to Class Rights: The rights, privileges,
restrictions and conditions attaching to the First Preferred Shares as
a class as provided herein and as may be provided from time to time
may be repealed, altered, modified, amended or amplified or otherwise
varied only with the approval of the holders of the First Preferred
Shares given in such manner as may then be required by law, subject to
a minimum requirement that such approval be given by two-thirds of the
votes cast at a meeting of holders of First Preferred Shares duly
called for such purpose and held upon at least twenty-one (21) days'
notice at which a quorum is present comprising at least two persons
present holding or representing by proxy at least fifty (50%) per cent
of the outstanding First Preferred Shares. If any such quorum is not
present within half an hour after the time appointed for the meeting,
then the meeting shall be adjourned to a date being not less than ten
(10) days later and at such time and place as may be appointed by the
chairman at which a quorum shall be comprised of that number of
holders of First Preferred Shares present in person or by proxy. The
formalities to be observed with respect to giving of notice of any
such meeting or adjourned meeting and the conduct thereof shall be
those which may from time to time be prescribed by the by-laws of the
Amalgamated Corporation with respect to meetings of shareholders. On
every vote taken at every such meeting or adjourned meeting each
holder of a First Preferred Share shall be entitled to one vote in
respect of each First Preferred Share held.
12. The holders of the issued and outstanding shares in the capital of Temba
shall, upon articles of amalgamation in respect of the Amalgamation becoming
effective, receive fully paid and non-assessable Common Shares in the capital of
the Amalgamated Corporation on the basis of one (1) Common Share of the
Amalgamated Corporation for every five (5) common shares, of Temba held.
13. The holders of the issued and outstanding shares in the capital of Ablevest
shall, upon articles of amalgamation in respect of the Amalgamation becoming
effective, receive fully paid and non-assessable Common Shares in the capital of
the Amalgamated Corporation on the basis of one (1) Common Share of the
Amalgamated Corporation for every thirty-one and one quarter (31.25) common
shares of Ablevest held.
14. Any common shares of Temba held by Ablevest and any common shares of
Ablevest held by Temba shall be cancelled upon articles of amalgamation in
respect of the Amalgamation becoming effective.
15. After articles of amalgamation in respect of the Amalgamation become
effective, the holders of shares of Temba shall be entitled to receive
certificates representing Common Shares of the Amalgamated Corporation on the
basis
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aforesaid on presentation and surrender of the certificates representing shares
held by them to the transfer agent and registrar for the Amalgamated
Corporation's Common Shares, Montreal Trust Company of Canada at its principal
office in Calgary, Alberta, 7th Floor, 530 - 8th Avenue S.W., Calgary, Alberta,
T2P 3S8 and shall surrender the certificates representing shares of Temba for
cancellation.
16. After articles of amalgamation in respect of the Amalgamation become
effective, the holders of shares of Ablevest shall be entitled to receive
certificates representing Common Shares of the Amalgamated Corporation on the
basis aforesaid on presentation and surrender of the certificates representing
shares held by them to the transfer agent and registrar for the Amalgamated
Corporation's Common Shares, Montreal Trust Company of Canada at its principal
office in Calgary, Alberta, 7th Floor, 530 - 8th Avenue S.W., Calgary, Alberta,
T2P 3S8 and shall surrender the certificates representing shares of Ablevest
for cancellation.
17. Holders of common shares of Temba shall not be entitled to be registered
on the books of the Amalgamated Corporation in respect of a fraction of one of
the issued Common Shares of the Amalgamated Corporation resulting from the
conversion described above or to receive any cash consideration in respect
thereof. All fractional entitlements shall be rounded up to one whole Common
Share of the Amalgamated Corporation.
18. Holders of common shares of Ablevest shall not be entitled to be
registered on the books of the Amalgamated Corporation in respect of a fraction
of one of the issued Common Shares of the Amalgamated Corporation resulting
from the conversion described above or to receive any cash consideration in
respect thereof. All fractional entitlements shall be rounded up to one whole
Common Share of the Amalgamated Corporation.
19. The by-laws and stock option plan of Temba shall become the by-laws and
stock option plan of the Amalgamated Corporation, respectively.
20. Each of the parties hereto may, by resolution of their respective
directors, assent to any amendment or variation of this Agreement which the
shareholders of the parties hereto may approve and the term "Agreement" as used
herein shall include this Agreement as so amended or varied.
21. Notwithstanding the approval of this Agreement by the shareholders of any
of the parties hereto, the directors of such party may by resolution terminate
this Agreement at any time prior to the endorsement of a certificate of
amalgamation upon the filing of articles of amalgamation in respect hereof.
22. Ablevest represents and warrants to Temba that:
(a) it is a duly incorporated and validly subsisting corporation under the
laws of the Province of Alberta and has the corporate power and
capacity to carry on its business as it is now being conducted by it
and is duly qualified to carry on business in the Province of Alberta;
(b) the entering into of this Agreement has been duly approved by all
necessary corporate action on the part of Ablevest and such agreement
constitutes a valid and binding obligation of Ablevest, subject only
to the requirement that the Amalgamation be approved by a special
resolution of the shareholders of Ablevest;
(c) the execution and delivery of this Agreement and the completion of the
transactions contemplated herein do not and will not result in the
breach of, or violate any terms or provisions of, its articles or
by-laws;
(d) the authorized capital of Ablevest at the date hereof consists of an
unlimited number of common shares and 26,494,915 of such common shares
are issued and outstanding as at the date hereof;
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(e) there are no first preferred shares of Ablevest issued or outstanding
and there are no other securities convertible into Ablevest common
shares or preferred shares;
(f) the audited financial statements of Ablevest as at and for the period
ended December 31, 1997 (the "Ablevest Financial Statements") are
fairly presented and conform with Canadian generally accepted
accounting principles applied on a consistent basis throughout the
time periods reflected therein, except as indicated therein; and
(g) since the respective dates of the Ablevest Financial Statements,
Ablevest has conducted its business in the ordinary course consistent
with prudent industry practice in all material respects and there has
not been any adverse material change in the business or affairs of
Ablevest.
23. Temba represents and warrants to Ablevest that:
(a) it is a duly incorporated and validly subsisting corporation under the
laws of the Province of Alberta and has the corporate power and
capacity to carry on its business as it is now being conducted by it
and is duly qualified to carry on business in the Province of Alberta;
(b) the entering into of this Agreement has been duly approved by all
necessary corporate action on the part of Temba and such agreement
constitutes a valid and binding obligation of Temba, subject only to
the requirement that the Amalgamation be approved by a special
resolution of the shareholders of Temba;
(c) the execution and delivery of this Agreement and the completion of the
transactions contemplated herein do not and will not result in the
breach of, or violate any terms or provisions of, its articles or
by-laws;
(d) the authorized capital of Temba at the date hereof consists of an
unlimited number of common shares and an unlimited number of preferred
shares issuable in series, of which 10,363,500 common shares are
issued and outstanding as at the date hereof;
(e) there are no preferred shares of Temba issued or outstanding and the
only securities convertible into Temba common shares or preferred
shares that are issued and outstanding are as follows:
(i) warrants to acquire an aggregate of 1,500,000 Temba common
shares at a price of $0.50 per share (expiring January 8, 2000);
(ii) warrants to acquire an aggregate of 250,875 Temba common shares
at a price of $0.45 per share (expiring December 10, 1998);
(iii) warrants to acquire an aggregate of 10,000 Temba common shares
at a price of $0.35 per share (expiring January 8, 2000);
(iv) options issued to directors, officers, employees and consultants
to acquire 1,035,000 Temba common shares at a price of $0.20 per
share (expiring March 31, 2003); and
(v) non-transferable option issued to C.M. Oliver & Company Ltd. to
acquire 100,350 Temba common shares at a price of $0.35 per
share (expiring June 10, 1999);
(f) the audited financial statements of Temba as at and for the period
ended December 31, 1997 (the "Temba Financial Statements") are fairly
presented and conform with Canadian generally accepted accounting
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principles applied on a consistent basis throughout the time periods
reflected therein, except as indicated therein; and
(g) since the respective dates of the Temba Financial Statements, Temba
has conducted its business in the ordinary course consistent with
prudent industry practice in all material respects and there has not
been any adverse material change in the business or affairs of Temba.
24. Temba covenants and agrees with Ablevest that:
(a) Temba shall submit a special resolution approving the Amalgamation to
its shareholders for approval, ratification and confirmation as
provided by law at a special meeting of Temba shareholders to be held
on or about June 30, 1998 or such other date as Temba and Ablevest may
agree to; and
(b) Temba shall perform its obligation hereunder.
25. Ablevest covenants and agrees with Temba that:
(a) Ablevest shall submit a special resolution approving the Amalgamation
to its shareholders for approval, ratification and confirmation as
provided by law at a special meeting of Ablevest shareholders to be
held on or about June 30, 1998 or such other date as Ablevest and
Temba may agree to; and
(b) Ablevest shall perform its obligations hereunder.
26. The parties hereto covenant and agree with each other that, as soon as
practicable after execution and delivery of this Agreement, each of them will:
(a) take all reasonable action to complete the Amalgamation in the manner
provided for in this Agreement; and
(b) expeditiously prepare, make and pursue all necessary corporate,
governmental or regulatory applications or filings as may be required
on each of their parts to be prepared or made to obtain any approval
or consent or to make any application or filing required to be
obtained or made by any of them to satisfy any of the conditions
precedent to their respective obligations hereunder in order to ensure
that the Amalgamation may occur without impediment.
27. The obligations of Ablevest to consummate the transactions contemplated by
this Agreement shall be subject to fulfilment of the following conditions:
(a) this Agreement and the Amalgamation contemplated hereby shall have
been approved at the special meeting of Ablevest shareholders by way
of a special resolution as more fully described in the information
circular prepared in connection with the special meeting of Ablevest
shareholders;
(b) dissenting shareholders of Ablevest and/or Temba, if any, do not hold
a sufficient number of shares, in the opinion of the board of
directors of Ablevest, acting reasonably, to have a material adverse
effect on the business, property or financial condition of the
Amalgamated Corporation;
(c) there shall not be in force on the Effective Date any order or decree
restraining or enjoining the consummation of the Amalgamation;
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(d) all approvals, rulings or orders necessary under any applicable
legislation, regulation or policy to permit the consummation of the
Amalgamation, including the approval to The Alberta Stock Exchange,
shall have been obtained; and
(e) Temba shall have delivered to Ablevest a certificate certifying that
the representations and warranties of Temba contained in Section 23 of
this Agreement shall be true and correct in all material respects as
of the date when made and shall be deemed to have been made again
immediately prior to the Effective Date and (except as affected by the
transactions contemplated by this Agreement or waived in writing by
Ablevest) shall be true and correct in all material respects at that
time.
The foregoing conditions shall be for the benefit of Ablevest and may,
without prejudice to any of the rights of Ablevest hereunder (including reliance
on or enforcement of warranties or covenants which are preserved dealing with or
similar to the condition or conditions waived), be waived by them in writing, in
whole or in part at any time. In case any of the said conditions shall not be
complied with or waived by Ablevest on or before the Effective Date, Ablevest
may rescind and terminate this Agreement by written notice to Temba and in such
event, Ablevest shall be released from all obligations hereunder and, unless
Ablevest can show that the condition or conditions for the non-performance of
which Ablevest have so rescinded this Agreement are or were reasonably capable
of being performed or caused to be performed, then Temba shall also be released
form all obligations hereunder.
28. The obligation of Temba to consummate the transactions contemplated by this
Agreement shall be subject to fulfilment of the following conditions:
(a) this Agreement and the Amalgamation contemplated hereby shall have
been approved at the special meeting of Temba shareholders by way of a
special resolution as more fully described in the information circular
prepared in connection with the special meeting of Temba shareholders;
(b) dissenting shareholders of Temba and/or Ablevest, if any, do not hold
a sufficient number of shares, in the opinion of the board of
directors of Temba, acting reasonably, to have a material adverse
effect on the business, property or financial condition of the
Amalgamated Corporation;
(c) there shall not be in force on the Effective Date any order or decree
restraining or enjoining the consummation of the Amalgamation;
(d) all approvals, rulings or orders necessary under any applicable
legislation, regulation or policy to permit the consummation of the
Amalgamation, including the approval of The Alberta Stock Exchange,
shall have been obtained; and
(e) Ablevest shall have delivered to Temba a certificate certifying that
the representations and warranties of Ablevest contained in Section 22
of this Agreement shall be true and correct in all material respects
as of the date when made and shall be deemed to have been made again
immediately prior to the Effect Date and (except as affected by the
transactions contemplated by this Agreement or waived in writing by
Temba) shall be true and correct in all material respects at that
time.
The foregoing conditions shall be for the benefit of Temba and may, without
prejudice to any of the rights of Temba hereunder (including reliance on or
enforcement of warranties or covenants which are preserved dealing with or
similar to the condition or conditions waived), be waived by it in writing, in
whole or in part, at any time. In case any of the said conditions shall not be
complied with or waived by Temba on or before the Effective Date, Temba may
rescind and terminate this Agreement by written notice to Ablevest, and in such
event, Temba shall be released from all obligations hereunder and, unless Temba
can show that the condition or conditions for the non-performance of which
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Temba have so rescinded this Agreement are or were reasonably capable of being
performed or caused to be performed, then Ablevest shall also be released from
all obligations hereunder.
29. This Agreement shall be binding upon and enure to the benefit of the
parties hereto and to the holders from time to time of shares of Temba and
Ablevest.
30. Each of the parties hereto shall pay its own legal and accounting expenses
in connection with the preparation and execution of this Agreement and the
transactions contemplated hereby or incidental hereto.
31. No party may assign its rights or obligations under this Agreement.
32. This Agreement shall be governed by and construed in accordance with the
laws of the Province of Alberta and the parties hereto irrevocably attorn to the
jurisdiction of the courts of the Province of Alberta.
33. Time shall be of the essence.
IN WITNESS WHEREOF the parties have executed this Agreement.
TEMBA RESOURCES LTD.
Per: "Peter R. Sekera"
----------------------------------
Per: "Ross O. Drysdale"
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PTR RESOURCES LTD.
Per: "Hans W.B. Heumann"
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Per: "Thomas S. Bamford"
----------------------------------
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