UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
(Amendment No. 7)
Under the Securities Exchange Act of 1934
ICHOR CORPORATION
Common Stock, $0.01 Par Value
693286 10 6
Jin-Soo Choi, 17 Dame Street, Dublin 2, Ireland
Telephone (35 31) 679-1688
December 29, 2000
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Page 2 of 7 Pages
CUSIP No. 693286 10 6
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1) Names of Reporting Persons/I.R.S. Identification Nos. of Above
Persons
MFC Bancorp Ltd.
-------------------------------------
2) Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [ X ]
3) SEC Use Only
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4) Source of Funds
---------------------------------------------------
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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6) Citizenship or Place of Organization Yukon Territory, Canada
------------------------------
Number of (7) Sole Voting Power 0
Shares Bene- --------------------
ficially (8) Shared Voting Power 3,567,380
Owned by ------------------
Each Reporting (9) Sole Dispositive Power 0
Person ---------------
With (10) Shared Dispositive Power 3,567,380
-------------
11) Aggregate Amount Beneficially Owned by Each Reporting Person
3,567,380
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12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
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13) Percent of Class Represented by Amount in Row (11) 43.7%
----------------
14) Type of Reporting Person CO
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Page 3 of 7 Pages
CUSIP No. 693286 10 6
-----------------------
1) Names of Reporting Persons/I.R.S. Identification Nos. of Above
Persons
Sutton Park International Ltd.
-------------------------------------
2) Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [ X ]
3) SEC Use Only
------------------------------------------------------
4) Source of Funds WC OO
---------------------------------------------------
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
--------------------------------------------------------------------
6) Citizenship or Place of Organization British Virgin Islands
------------------------------
Number of (7) Sole Voting Power 0
Shares Bene- --------------------
ficially (8) Shared Voting Power 2,597,060
Owned by ------------------
Each Reporting (9) Sole Dispositive Power 0
Person ---------------
With (10) Shared Dispositive Power 2,597,060
-------------
11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,597,060
--------------------------------------------------------------------
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
--------------------------------------------------------------------
13) Percent of Class Represented by Amount in Row (11) 31.8%
----------------
14) Type of Reporting Person CO
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Page 4 of 7 Pages
This Amendment No. 7 ("Amendment No. 7") amends the Schedule 13D/A of MFC Bancorp Ltd. ("MFC") dated January 7, 2000 and the Schedule 13D/A of Sutton Park International Ltd. ("Sutton Park") dated March 13, 1998 and is filed to report a change in the beneficial ownership of certain shares of ICHOR Corporation ("ICHOR").
ITEM 1. SECURITY AND ISSUER.
This statement relates to the shares of common stock with a $0.01 par value each of ICHOR, a Delaware corporation, having an office address at 17 Dame Street, Dublin 2, Ireland.
ITEM 2. IDENTITY AND BACKGROUND.
This statement is filed on behalf of MFC and Sutton Park. MFC operates in the financial services business and has an office address at 17 Dame Street, Dublin 2, Ireland. Sutton Park is a wholly-owned subsidiary of MFC and has a registered office at P.O. Box 146, Road Town, Tortola, British Virgin Islands. See Item 6 on pages 2 and 3 of this Amendment No. 7 for the jurisdiction of organization of MFC and Sutton Park, respectively.
The following table lists the names, citizenship, principal business addresses and principal occupations of the executive officers and directors of MFC that have not previously been reported and of Sutton Park.
RESIDENCE OR PRINCIPAL
NAME BUSINESS ADDRESS OCCUPATION CITIZENSHIP
---- ---------------- ---------- -----------
Dr. Stefan Charlottenstr. 57, Managing Director of the German
Feuerstein D-10117, Berlin, Industrial Investment
Germany Council GmbH
Michael J. 17 Dame Street, Director, President and British
Smith Dublin 2, Ireland Chief Executive Officer
of MFC
Roy Zanatta Suite 1620, 400 Burrard Director and Secretary Canadian
Street, Vancouver, British of MFC
Columbia, Canada, V6C 3A6
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During the last five years, neither MFC nor Sutton Park has been, nor to the knowledge of MFC or Sutton Park, have any of their officers or directors been, convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), nor have they been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding were or are subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or State securities laws or finding any violation with respect to such laws.
MFC and Sutton Park have executed a joint filing agreement consenting to the joint filing of this Amendment No. 7. Such agreement is filed as Exhibit 1 to this Amendment No. 7 and is incorporated herein by reference.
Page 5 of 7 Pages
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Sutton Park acquired 227,500 shares (the "ICHOR Preferred Shares") of Series 1 preferred stock in the capital of ICHOR ("Series 1 Stock") from Constable Investments Ltd. ("Constable") on April 1, 2000, which increased its holdings of Series 1 Stock to 402,500 shares (the "Shares"). Constable is a wholly-owned subsidiary of MFC.
Pursuant to the terms of a Preferred Stock Redemption and Conversion Agreement (the "Agreement") dated for reference December 21, 2000, a copy of which is filed as Exhibit 2 to this Amendment No. 7 and is incorporated herein by reference, the 402,500 shares of Series 1 Stock held by Sutton Park were redeemed for $1,197,940 and converted for 2,597,060 shares of the common stock of ICHOR (the "ICHOR Common Shares") on December 29, 2000.
Certain other shares of Series 1 Stock indirectly held by MFC were redeemed pursuant to their terms on December 29, 2000.
ITEM 4. PURPOSE OF TRANSACTION.
Sutton Park acquired the ICHOR Preferred Shares for investment purposes and the ICHOR Common Shares pursuant to the Agreement. MFC and Sutton Park reserve the right to make additional purchases on the open market, in private transactions and from treasury. Except as otherwise disclosed, neither MFC nor Sutton Park, nor, to the knowledge of MFC or Sutton Park, any of their directors or executive officers, have any present intention or understandings to effect any of the transactions listed in Item 4(a)-(j) of Regulation 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Sutton Park beneficially owns 2,597,060 shares, or approximately 31.8%, of the issued and outstanding common stock of ICHOR and shares voting and dispositive power over those shares with MFC.
MFC indirectly owns 3,567,380 shares, or approximately 43.7%, of the issued and outstanding common stock of ICHOR and shares voting and dispositive power over such shares with Sutton Park and MFC Merchant Bank S.A, a wholly-owned subsidiary of MFC which is the beneficial owner of 970,320 shares of the common stock of ICHOR.
To the knowledge of MFC and Sutton Park, none of their directors or executive officers have the power to vote or dispose of any shares of common stock of ICHOR, nor did MFC, Sutton Park, or their directors and executive officers effect any transactions in such shares during the past 60 days, except as disclosed herein.
Page 6 of 7 Pages
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
None.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit Number Description
-------------- -----------
1 Joint Filing Agreement between MFC Bancorp
Ltd. and Sutton Park International Ltd. dated
January 2, 2001.
2 Preferred Stock Redemption and Conversion
Agreement between ICHOR Corporation and
Sutton Park International Ltd. dated for
reference December 21, 2000.
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Page 7 of 7 Pages
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
January 2, 2001
MFC BANCORP LTD.
By: /s/ Michael J. Smith
--------------------------------
(Signature)
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January 2, 2001
SUTTON PARK INTERNATIONAL LTD.
By: /s/ Michael J. Smith
--------------------------------
(Signature)
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EXHIBIT INDEX
Exhibit Number Description
-------------- -----------
1 Joint Filing Agreement between MFC Bancorp
Ltd. and Sutton Park International Ltd. dated
January 2, 2001.
2 Preferred Stock Redemption and Conversion
Agreement between ICHOR Corporation and
Sutton Park International Ltd. dated for
reference December 21, 2000.
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JOINT FILING AGREEMENT
THIS AGREEMENT dated the 2nd day of January, 2001.
WHEREAS:
A. Sutton Park International Ltd. ("Sutton Park") is a wholly-owned subsidiary of MFC Bancorp Ltd. ("MFC") and shares voting and dispositive power over 2,597,060 shares of the common stock of ICHOR Corporation ("ICHOR") with MFC;
B. MFC and Sutton Park (each a "Filer" and collectively, the "Filers") are responsible for filing a Schedule 13D/A (the "Schedule 13D/A") relating to the acquisition or disposition of the shares of common stock of ICHOR, pursuant to U.S. securities laws.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1. Each Filer covenants and agrees that it is individually eligible to use the Schedule 13D/A which is to be filed;
2. Each Filer is individually responsible for the timely filing of any amendments to the Schedule 13D/A, and for the completeness and accuracy of the information concerning themselves, but is not responsible for the completeness and accuracy of any of the information contained in the Schedule 13D/A as to the other Filer, unless such Filer knows or has reason to believe that the information is inaccurate;
3. This Schedule 13D/A contains the required information with regard to each Filer and indicates that it is filed on behalf of both Filers; and
4. Each Filer agrees that the Schedule 13D/A to which this Joint Filing Agreement is attached as Exhibit 1 is filed on its behalf.
IN WITNESS WHEREOF the parties have duly executed this Joint Filing Agreement.
MFC BANCORP LTD.
By: /s/ Michael J. Smith
----------------------------
Michael J. Smith, President
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SUTTON PARK INTERNATIONAL LTD.
By: /s/ Michael J. Smith
----------------------------
Michael J. Smith, Director
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PREFERRED STOCK
REDEMPTION AND CONVERSION AGREEMENT
This Agreement dated for reference the 21st day of December, 2000.
BETWEEN:
SUTTON PARK INTERNATIONAL LIMITED, a corporation organized under the laws of the British Virgin Islands, with an address at P.O. Box 146, Road Town, Tortola, British Virgin Islands
(the "Shareholder")
AND:
ICHOR CORPORATION, a corporation organized under the laws of Delaware in the United States
("ICHOR")
WHEREAS:
A. The Shareholder is the beneficial owner of 402,500 shares of 5% Cumulative Redeemable Convertible Preferred Stock, Series 1 (the "Series 1 Preferred Stock") in the capital of ICHOR; and
B. The Shareholder has agreed with ICHOR as to the conversion and/or redemption of its shares of Series 1 Preferred Stock of ICHOR, upon the terms and conditions set forth herein.
NOW THEREFORE, the parties hereto agree as follows:
1. CONVERSION AND/OR REDEMPTION
1.1 Subject to the terms and conditions hereof, the Shareholder hereby sells, assigns and transfers to ICHOR 402,500 shares of Series 1 Preferred Stock beneficially owned by the Shareholder in consideration of the sum of $1,197,940 (the "Sum") and 2,597,060 shares of common stock, par value $0.01 per share (the "Common Stock") in the capital of ICHOR.
2. REPRESENTATIONS AND WARRANTIES
2.1 ICHOR represents and warrants to the Shareholder that the statements contained in this Section 2.1 are correct and complete as of the date of this Agreement and shall be correct and complete as of the Closing Date (as though made then) and hereby acknowledges and confirms that the Shareholder is relying upon such representations and warranties in connection with the transactions contemplated herein:
(a) ICHOR has been duly organized and is validly existing and in good standing under the laws of its jurisdiction of organization. ICHOR is duly authorized to conduct business and is in good standing under the laws of each jurisdiction where such qualification is required. ICHOR has full corporate power and authority to carry on the businesses in which it is engaged and to own and use the properties owned and used by it;
(b) ICHOR has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly executed and delivered by and on behalf of ICHOR and constitutes legal, valid and binding obligations of ICHOR enforceable against ICHOR in accordance with its terms; and
(c) the shares of Common Stock of ICHOR to be issued upon conversion of certain shares of Series 1 Preferred Stock hereunder shall be duly and validly issued and outstanding as fully paid and non-assessable.
2.2 The Shareholder represents and warrants to ICHOR that the statements contained in this Section 2.2 are correct and complete as of the date of this Agreement and shall be correct and complete as of the Closing Date (as though made then) and hereby acknowledges and confirms that ICHOR is relying upon such representations and warranties in connection with the transactions contemplated herein:
(a) it has all necessary power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly executed and delivered by and on its behalf and constitutes legal, valid and binding obligations of it enforceable against it in accordance with its terms;
(b) the shares of Series 1 Preferred Stock owned by it are owned by it as the sole legal and beneficial owner of record with good, full and marketable title thereto, free and clear of any mortgages, liens, charges, restrictions, security interests, adverse claims, pledges, encumbrances or demands whatsoever, and are issued and outstanding as fully paid and non-assessable;
(c) no person, firm or corporation has any agreement or option, or any right or privilege (whether by law, pre-emptive or contractual) capable of becoming an agreement or option for the purchase, acquisition, transfer or contribution from it of any of the shares of Series 1 Preferred Stock or any interest therein or right thereto owned by it, other than pursuant hereto; and
(d) there is no legal or regulatory action or proceeding pending or threatened by any person to enjoin, restrict or prohibit the redemption and/or conversion, as applicable, by it as contemplated herein.
2.3 The Shareholder acknowledges and agrees that: (i) the shares of Common Stock of ICHOR acquired pursuant hereto have not been and will not be registered under the Securities Act of 1933, as amended, of the United States (the "Securities Act") or the securities laws of any state; (ii) the sale contemplated hereby is being made in reliance on either Rule 144A to Qualified Institutional Buyers or under Regulation S to non U.S. persons outside the United States in reliance upon Regulation S; and (iii) the shares of Common Stock of ICHOR acquired pursuant hereto are deemed to be "restricted securities" within the meaning of Rule 144 under the Securities Act.
2.4 The Shareholder acknowledges and agrees that if it decides to offer, sell or otherwise transfer the shares of Common Stock of ICHOR acquired pursuant hereto, such securities may be offered, sold or otherwise transferred only: (i)(A) to a person whom the seller reasonably believes is a Qualified Institutional Buyer purchasing for its own account or is purchasing for the account of a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A; (B) in an offshore transaction (as defined in Rule 902 under the Securities Act) meeting the requirements of rule 904 under the Act; (C) in a transaction meeting the requirements of Rule 144 under the Securities Act; (D) to an institutional "Accredited Investor" as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act that, prior to such transfer, furnishes ICHOR an opinion of counsel or other documentation containing certain representations and agreements
relating to the registration or transfer of the shares that such transfer is in compliance with the Securities Act; or (E) in accordance with another exemption from the registration requirements of the Securities Act; (ii) to ICHOR; or (iii) pursuant to an effective registration statement under the Securities Act and, in each case, in accordance with any applicable securities laws of any state of the United States or any other applicable jurisdiction, and the Shareholder will, and each subsequent holder is required to, notify any purchaser of the security evidenced thereby of the resale restructions set forth above.
2.5 The Shareholder acknowledges and agrees that the certificates representing the shares of Common Stock to be delivered to the Shareholder upon the terms described herein shall bear a legend substantially upon the terms descsribed in Section 2.4 above.
3. COVENANTS
3.1 Each of the parties hereto severally covenants that it shall use all commercially reasonable efforts to take all action and do all things necessary, proper or advisable in order to consummate and make effective the transactions contemplated by this Agreement.
4. CLOSING PROCEDURE
4.1 The closing of the transactions contemplated herein shall take place on December 29, 2000, at 53, Route de Malagnou, 1211 Geneva 17, Switzerland, or at such other time or place as may be mutually agreed upon. The date of the closing of the transactions contemplated in this Agreement is referred to herein as the "Closing Date" and the time of closing on such date is referred to herein as the "Time of Closing".
4.2 At the Time of Closing on the Closing Date, ICHOR shall:
(a) deliver to the Shareholder or its order a bank draft, certified cheque or electronic wire transfer in an amount equal to the Sum and certificates representing 2,597,060 shares of Common Stock to be issued to the Shareholder pursuant to Section 1.1 hereof; and
(b) deliver or cause to be delivered such other documents as are required or contemplated to be delivered by ICHOR pursuant to this Agreement.
4.3 At the Time of Closing on the Closing Date, the Shareholder shall:
(a) deliver to ICHOR certificates representing the shares of Series 1 Preferred Stock to be cancelled pursuant to Section 1.1 hereof; and
(b) deliver or cause to be delivered such other documents as are required or contemplated to be delivered by the Shareholder pursuant to this Agreement.
5. CONDITIONS OF CLOSING
5.1 The obligation of ICHOR to complete the transactions contemplated herein shall be subject to the following conditions to be fulfilled and/or performed at or prior to the Time of Closing on the Closing Date:
(a) the representations and warranties of the Shareholder contained in this Agreement shall be true and correct in all material respects at the Time of Closing, with the same force and effect as if such representations and warranties were made at and as of such time; and
(b) the Shareholder shall have complied with all covenants and agreements herein agreed to be performed or caused to be performed by it.
5.2 In the event that the conditions referred to in Section 5.1 hereof shall not have been fulfilled at or prior to the Time of Closing to the satisfaction of ICHOR, acting reasonably, or waived by ICHOR, this Agreement shall be rescinded and ICHOR shall be released from all obligations hereunder.
5.3 The obligation of the Shareholder to complete the transactions contemplated herein shall be subject to the following conditions to be fulfilled and/or performed at or prior to the Time of Closing on the Closing Date:
(a) the representations and warranties of ICHOR contained in this Agreement shall be true and correct in all material respects at the Time of Closing, with the same force and effect as if such representations and warranties were made at and as of such time; and
(b) ICHOR shall have complied with all covenants and agreements herein agreed to be performed or caused to be performed by it.
5.4 In the event that the conditions referred to in Section 5.3 hereof shall not have been fulfilled at or prior to the Time of Closing to the satisfaction of the Shareholder, acting reasonably, or waived by the Shareholder, this Agreement shall be rescinded and the Shareholder shall be released from all obligations hereunder.
6. INDEMNIFICATION
6.1 ICHOR agrees to indemnify and save harmless the Shareholder from all claims, demands, proceedings, losses, damages, liabilities, deficiencies, costs and expenses (including, without limitation, all legal and other professional fees and disbursements, interest, penalties and amounts paid in settlement) suffered or incurred as a result of or arising directly or indirectly out of or in connection with: (i) any breach by ICHOR of or any inaccuracy of any representation or warranty of ICHOR; or (ii) any breach or non-performance by ICHOR of any covenant to be performed by it that is contained in this Agreement or in any agreement, certificate or other document delivered pursuant hereto.
6.2 The Shareholder agrees to indemnify and save harmless ICHOR from all claims, demands, proceedings, losses, damages, liabilities, deficiencies, costs and expenses (including, without limitation, all legal and other professional fees and disbursements, interest, penalties and amounts paid in settlement) suffered or incurred by ICHOR as a result of or arising directly or indirectly out of or in connection with: (i) any breach by the Shareholder of or any inaccuracy of any representation or warranty of the Shareholder; or (ii) any breach or non-performance by the Shareholder of any covenant to be performed by it, that is contained in this Agreement or in any agreement, instrument, certificate or other document delivered pursuant hereto.
7. COSTS AND EXPENSES
7.1 All costs and expenses of or incidental to the transactions contemplated herein are to be assumed and paid by the party incurring such costs and expenses.
8. SUCCESSORS AND ASSIGNS
8.1 All the terms and provisions of this Agreement shall be binding upon and enure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.
9. SURVIVAL
9.1 It is understood and agreed that all warranties, representations, covenants, indemnities and agreements of the parties herein contained or contained in any certificates or documents submitted pursuant to or in connection with the transactions contemplated herein shall survive the completion of the transactions contemplated herein and the termination of this Agreement and shall continue in full force and effect for the benefit of the other parties for a period of two years following the Closing Date.
10. FURTHER ASSURANCES
10.1 Each party to this Agreement covenants and agrees that, from time to time, it will, at the request and expense of the requesting party, execute and deliver all such documents and do all such other acts and things as any other party hereto, acting reasonably, may from time to time request be executed or done in order to better evidence or perfect or effectuate any provision of this Agreement or of any agreement or other document executed pursuant to this Agreement or any of the respective obligations intended to be created hereby or thereby.
11. SEVERABILITY
11.1 Should a provision of this Agreement be or become invalid, the validity of the remaining provisions of this Agreement shall not be affected. The parties hereto undertake to replace any such invalid provision without delay with a valid provision which as nearly as possible duplicates the economic intent of the invalid provision.
12. GOVERNING LAW
12.1 This Agreement shall be construed and enforced in accordance with, and the rights and obligations of the parties shall be governed by, the laws of the State of New York in the United States.
13. COUNTERPARTS
13.1 This Agreement may be executed in any number of counterparts, each of which when delivered, either in original or facsimile form, shall be deemed to be an original and all of which together shall constitute one and the same document.
IN WITNESS WHEREOF the parties have executed this Agreement in counterparts, one for each party.
ICHOR CORPORATION
Per: -------------------------------
Authorized Signatory
SUTTON PARK INTERNATIONAL LIMITED
Per: -------------------------------
Authorized Signatory