Exhibit 2.1
ATLAS
EXECUTED COPY
CORP
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
ATLAS CORPORATION
AND THE
SELLERS NAMED HEREIN
DATED AS OF OCTOBER 7, 1996
TABLE OF CONTENTS
-----------------
ARTICLE I Plan of Reorganization................................ 3
Section 1.1 Adoption of Plan...................................... 3
Section 1.2 Purchase and Sale..................................... 3
Section 1.3 Purchase Consideration................................ 3
Section 1.4 Other Deliveries...................................... 3
Section 1.5 Forgiveness of Indebtedness........................... 5
ARTICLE II Representations and Warranties of Sellers............. 5
Section 2.1 Execution of the Agreement; Binding Obligations....... 5
Section 2.2 Ownership of the Suramco Shares....................... 6
Section 2.3 Consents and Approvals; No Violations................. 6
Section 2.4 Ownership of the Arisur Shares and the Minera
Andacaba Shares....................................... 7
Section 2.5 Accredited Investor Status............................ 8
Section 2.6 Arisur and Minera Andacaba Organization............... 9
Section 2.7 Financial Information................................. 9
Section 2.8 Absence of Undisclosed Liabilities.................... 10
Section 2.9 Absence of Adverse Changes............................ 10
Section 2.10 Taxes................................................. 11
Section 2.11 Title to Properties................................... 12
Section 2.12 Personal and Real Properties.......................... 12
Section 2.13 Environmental Matters................................. 13
Section 2.14 Notes, Accounts Receivable............................ 14
Section 2.15 Contracts, Etc........................................ 14
Section 2.16 Employees and Organizational Chart.................... 15
Section 2.17 Litigation............................................ 15
Section 2.18 Business Permits...................................... 16
Section 2.19 Insurance............................................. 16
Section 2.20 Compliance with Applicable Law........................ 17
Section 2.21 Bank Accounts; Powers of Attorney..................... 17
Section 2.22 Minute Books, etc..................................... 17
Section 2.23 Disclosure............................................ 18
Section 2.24 Brokers............................................... 18
ARTICLE III Representations and Warranties of Buyer............... 19
Section 3.1 Authorization; Binding Obligation..................... 19
Section 3.2 Ownership of the Atlas Shares......................... 19
Section 3.3 No Conflicts.......................................... 20
Section 3.4 SEC Reports and Financial Statements.................. 21
Section 3.5 Absence of Adverse Changes............................ 22
Section 3.6 Litigation............................................ 22
Section 3.7 Investment; Experience................................ 23
Section 3.8 Brokers............................................... 23
ARTICLE IV Covenants............................................. 24
Section 4.1 Directorship.......................................... 24
Section 4.2 Covenant Not to Compete............................... 24
Section 4.3 Transfer Taxes........................................ 25
Section 4.4 Best Efforts.......................................... 25
Section 4.5 Further Assurances.................................... 26
ARTICLE V Indemnification and Related Matters................... 26
Section 5.1 Indemnification by Sellers............................ 26
Section 5.2 Indemnification by Buyer.............................. 27
Section 5.3 Procedure............................................. 28
Section 5.4 Related Matters....................................... 30
ARTICLE VI Miscellaneous......................................... 30
Section 6.1 Headings.............................................. 30
Section 6.2 Amendment............................................. 30
Section 6.3 Notices............................................... 30
Section 6.4 Successors............................................ 32
Section 6.5 Entire Agreement...................................... 32
Section 6.6 Severability.......................................... 32
Section 6.7 Third Parties......................................... 32
Section 6.8 Counterparts.......................................... 33
Section 6.9 Governing Law......................................... 33
SCHEDULES
Schedule A Shareholders of Suramco Metals, Inc.
Schedule 2.8 Disclosed Liabilities
Schedule 2.9 Certain Adverse Changes
Schedule 2.10 Taxes
Schedule 2.11 Title to Properties
Schedule 2.12(i) Personal Property
Schedule 2.12(ii) Real Property
Schedule 2.15 Contracts, Etc.
Schedule 2.16 Employees and Organizational Chart
Schedule 2.18 Business Permits
Schedule 2.19 Insurance
Schedule 2.21 Bank Accounts; Powers of Attorney
Schedule 3.5 Certain Adverse Changes
Schedule 3.6 Litigation
Schedule 4.2 Permitted Competition
EXHIBITS
Exhibit A Registration Rights Agreement
Exhibit B Executive Consulting Agreement
Exhibit C Report of Xxxxx & Associates
AGREEMENT AND PLAN OF REORGANIZATION
------------------------------------
This AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is made as of the
seventh day of October, 1996, by and among Atlas Corporation, a Delaware
corporation ("Buyer"), and the individuals listed in Schedule A hereto (each, a
"Seller" and collectively, the "Sellers").
W I T N E S S E T H:
-------------------
WHEREAS, Sellers are the record and beneficial owners of 5,100,000 common
shares of Suramco Metals, Inc., a Nevada corporation ("Suramco"), constituting
one hundred percent (100%) of the issued and outstanding shares of capital stock
of Suramco (the "Suramco Shares"); and
WHEREAS, Suramco is the record and beneficial owner of 500 ordinary shares,
nominal value US$1.00 per share of Arisur, Inc., a Cayman Islands company
registered and qualified to do business in the Republic of Bolivia ("Arisur"),
constituting fifty percent (50%) of the issued and outstanding shares of Arisur
(the "Arisur Shares"); and
WHEREAS, Suramco is also the record and beneficial owner of 4,224 ordinary
shares, nominal value 1 Boliviano per share, of Compania Minera Andacaba S.A., a
Bolivian corporation ("Minera Andacaba"), constituting forty-eight (48%) percent
of the issued and outstanding shares of Minera Andacaba (the "Minera Andacaba
Shares"); and
WHEREAS, Arisur and Arimetco International Inc., a Canadian corporation
("Arimetco"), respectively, are the record and beneficial owners of 4,488 and 88
ordinary shares, nominal value 1 Boliviano per share, of Minera Andacaba,
constituting, respectively, fifty-one percent (51%) and one percent (1%) of the
issued and outstanding shares of Minera Andacaba; and
WHEREAS, pursuant to an agreement of even date herewith, Buyer is
purchasing, and Arimetco is selling, (i) the remaining fifty percent (50%) of
the issued and outstanding shares of Arisur, which are owned by Arimetco and
(ii) the one percent (1%) of the issued and outstanding shares of Minera
Andacaba; and
WHEREAS, the parties hereto desire to enter into a plan qualifying as a
tax-deferred reorganization under Section 368(a)(1)(B) of the Internal Revenue
Code of 1986, as amended (the "Code"), pursuant to which Sellers shall sell and
transfer the Suramco Shares to Buyer and Buyer, solely in exchange for voting
common stock of Buyer, shall purchase and acquire the Suramco Shares from
Sellers, all upon the terms hereinafter set forth.
NOW, THEREFORE, it is agreed as follows:
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ARTICLE I
Plan of Reorganization
----------------------
Section 1.1 Adoption of Plan. Buyer and Sellers hereby adopt a plan of
reorganization in accordance with the provisions of Section 368(a)(1)(B) of the
Code. The terms and conditions governing this Agreement are set forth below .
Section 1.2 Purchase and Sale. On the terms and conditions set forth
herein, Buyer hereby purchases from Sellers, and Sellers hereby sell, transfer
and deliver to Buyer, all right, title and interest in, free of all Liens (as
hereinafter defined), the Suramco Shares, for the purchase consideration set
forth in Section 1.3 hereof.
Section 1.3 Purchase Consideration. In consideration for the sale and
transfer of the Suramco Shares, Buyer hereby issues to each Seller the number of
shares of common stock listed opposite such Seller's name on Schedule A hereto,
the aggregate amount of such shares being issued to Sellers being 4,000,000
common voting shares of Buyer (the "Atlas Shares"), receipt of which shares by
Sellers is hereby acknowledged.
Section 1.4 Other Deliveries. Simultaneously with the transfer of the
Suramco Shares, the parties acknowledge that the following actions have been
taken :
(a) Registration Rights Agreement. Sellers and Buyer have entered into a
Registration Rights Agreement substantially in the form of Exhibit A
hereto;
(b) Executive Consulting Agreement. Suramco Holdings, Inc. and Buyer have
executed and delivered an Executive Consulting Agreement,
substantially in the form set forth in Exhibit B hereto, pursuant to
which Suramco Holdings, Inc.
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shall provide certain consultancy services to Buyer and its
subsidiaries and affiliates;
(c) Resignations. All members of the Board of Directors of Suramco, all
members of the Boards of Directors of Arisur and Minera Andacaba and
all officers of Suramco, Arisur and Minera Andacaba have delivered
their resignations dated the date hereof;
(d) Good Standing. (i) Sellers have delivered to Buyer certificates of
good standing (or, in the case of Minera Andacaba, a copy of its
certificate of incorporation and by-laws, together with all amendments
thereto, registered with the appropriate Registry of Commerce) in
respect of Suramco and Arisur, including copies of their respective
articles of incorporation certified by a notary public in Nevada and
the Cayman Islands (as the case may be) as being a true and correct
copy thereof and (ii) Buyer has delivered to Seller a certificate of
good standing in respect of Buyer, including a copy of the certificate
of incorporation of Buyer certified by the Secretary of State of
Delaware;
(e) Share Certificates and Stock Transfers. Each Seller has delivered to
Buyer its respective certificate or certificates representing the
Suramco Shares owned by such Seller, in each case together with stock
transfers duly and validly endorsed for transfer on behalf of such
Seller; and
(f) Title and Geological Data. Sellers have delivered (or caused to be
delivered) to Buyer originals of all title, geological, geochemical,
geophysical and engineering data in the possession of Sellers,
Suramco, Arisur or Minera Andacaba or under
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their control, in respect of all properties owned, controlled or
evaluated by Suramco, Arisur (including any branch thereof) and Minera
Andacaba.
Section 1.5 Forgiveness of Indebtedness. Pursuant to the purchase by Buyer
of the Suramco Shares hereunder, that certain loan dated August 26, 1996
extended by Buyer to Suramco in the principal amount of US$200,000 shall hereby
be deemed to constitute a capital contribution by Buyer to Suramco, and the
pledge by Suramco to Buyer of the Arisur Shares as security for such loan is
hereby deemed released and discharged.
ARTICLE II
Representations and Warranties of Sellers
-----------------------------------------
Sellers jointly and severally make each of the representations and
warranties set forth in this Article II below. For purposes of this Article II,
all representations and warranties with respect to Arisur shall be deemed to
apply with equal force to each branch of Arisur wherever established.
Section 2.1 Execution of the Agreement; Binding Obligations. The execution
and delivery by Sellers of this Agreement and any agreements related thereto and
performance by Sellers of their obligations hereunder and thereunder have been
duly and validly authorized. This Agreement and all such related agreements are
the valid and binding obligations of, enforceable in accordance with their
respective terms against, Sellers, except as enforcement thereof may be limited
by bankruptcy, insolvency, conservatorship, receivership, liquidation,
reorganization, moratorium or similar laws or general equitable principles.
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Section 2.2 Ownership of the Suramco Shares. The Suramco Shares constitute
one hundred percent (100%) of the issued and outstanding share capital of
Suramco. Each Seller is the record and beneficial owner of the number of Suramco
Shares listed opposite such Seller's name listed on Schedule A hereto, and each
Seller owns such shares free and clear of all liens, mortgages, charges,
security interests, defects in title, adverse claims, encumbrances, conflicting
claims to ownership, any options, rights of first refusal or similar rights, or
any restrictions or limitations on, or conflicting claims with respect to, the
use, voting, transfer, receipt of income or other exercise of any attributes of
ownership (collectively, "Liens"); as a result of the transfer of the Suramco
Shares pursuant to this Agreement, Buyer has acquired good and marketable title
to the Suramco Shares free and clear of all Liens; other than this Agreement,
there are no agreements, arrangements or understandings relating to issuance,
ownership, transfer or other rights with respect to the Suramco Shares; the
Suramco Shares are duly and validly issued and outstanding, fully paid and non-
assessable and have not been issued in violation of any preemptive or similar
rights of stockholders; and there is no option, warrant, subscription, or other
agreement to issue any security or other instrument convertible into or
exchangeable for, or any other right, commitment, understanding or arrangement
calling for the issuance of any additional shares of capital stock by Suramco.
Suramco does not own any shares or other equity in any other corporation or
entity other than the Arisur Shares and the Minera Andacaba Shares.
Section 2.3 Consents and Approvals; No Violations. The execution and
delivery of this Agreement and any agreement contemplated herein and the
consummation of the transactions contemplated hereby and thereby will not:
violate or conflict with any provision of the respective certificates of
incorporation, by-laws or other constitutional documents of Suramco,
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Arisur or Minera Andacaba; breach, violate or constitute an event of default (or
an event which with the lapse of time or the giving of notice or both would
constitute an event of default) under, give rise to any right of termination,
cancellation, modification or acceleration under, or require any consent or the
giving of any notice under, any note, bond, indenture, mortgage, security
agreement, lease, license, franchise, permit, agreement or other instrument or
obligation to which any Seller, Suramco, Arisur or Minera Andacaba is a party,
or by which any Seller, Suramco, Arisur, Minera Andacaba or any of their
respective properties or assets may be bound, or result in the creation of any
Lien or other right of any third party of any kind whatsoever upon such
properties or assets pursuant to the terms of any such instrument or obligation;
violate or conflict with any law, statute, ordinance, code, rule, regulation,
judgment, order, writ, injunction, decree or other instrument applicable to any
Seller, Suramco, Arisur or Minera Andacaba or by which their respective
properties or assets may be bound or require, on the part of said persons and
entities, any filing with, or permit, license, exemption, consent, authorization
or approval of, or the giving of any notice to, any governmental or regulatory
agency other than such as has been obtained.
Section 2.4 Ownership of the Arisur Shares and the Minera Andacaba Shares.
The Arisur Shares constitute fifty percent (50%) the issued and outstanding
share capital of Arisur and the Minera Andacaba Shares constitute forty-eight
(48%) of the issued and outstanding share capital of Minera Andacaba; Suramco is
the sole record and beneficial owner of the Arisur Shares and the Minera
Andacaba Shares, in each case free and clear of all Liens; as a result of the
transfer of the Arisur Shares and the Minera Andacaba Shares pursuant to this
Agreement, Buyer has acquired good and marketable title to the Arisur Shares and
the Minera Andacaba
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Shares, in each case free and clear of all Liens; other than this Agreement,
there are no agreements arrangements or understandings relating to issuance,
ownership, transfer or other rights with respect to the Arisur Shares and the
Minera Andacaba Shares; the Arisur Shares and the Minera Andacaba Shares are
duly and validly issued and outstanding, fully paid and non-assessable and have
not been issued in violation of any preemptive or similar rights of stock-
holders; and there is no option, warrant, subscription or other agreement to
issue, or any security or other instrument convertible into or exchangeable for,
or any other right, commitment, understanding or arrangement calling for the
issuance of, any additional shares of capital stock by Arisur or Minera
Andacaba. Except for Arisur's 51% ownership interest in Minera Andacaba, neither
Arisur nor Minera Andacaba owns any shares or other equity interest in any other
corporation or entity.
Section 2.5 Accredited Investor. Status. Each Seller hereby represents
and warrants as of the date hereof that (i) it is an "Accredited Investor" or it
is represented by a "Purchaser Representative" (as such terms are defined in
Regulation D promulgated under the Securities Act of 1933, as amended (the
"Securities Act")), and either alone or together with its Purchaser
Representative, has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of an investment
in the Atlas Shares being acquired by such Seller hereunder; (ii) it understands
that the Atlas Shares being acquired by Sellers hereunder have not been
registered under the Securities Act or the securities laws of any state, that
therefore such Shares cannot be resold unless registered under the Securities
Act or exempt from such registration, and that (other than as expressly
contemplated by the Registration Rights Agreement) Buyer has not made any
representations, warranties or covenants to it regarding the
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registration of said shares or compliance with any exemption under the
Securities Act or the securities laws of any state and that said shares have not
been approved or disapproved by the Securities and Exchange Commission ("SEC")
or any other federal or state agency; and (iii) it is acquiring the Atlas Shares
for its own account, for investment purposes only and not with a view to the
sale or distribution thereof.
Section 2.6 Arisur and Minera Andacaba Organization. Arisur and Minera
Andacaba are companies duly organized, validly existing and in good standing
under the laws of the Cayman Islands and Bolivia, respectively, have all
requisite power and authority to own, lease and operate the properties currently
(or contemplated to be) owned, leased or operated by Arisur and Minera Andacaba
(as the case may be) and to conduct their respective businesses as presently (or
as contemplated to be) conducted.
Section 2.7 Financial Information. Sellers have delivered to Buyer on or
prior to the date of this Agreement (i) the audited consolidated balance sheets
of each of Arisur and Minera Andacaba as at September 30, 1995, 1994 and 1993
and their respective audited statements of income and cash flow for the fiscal
years then ended, including the notes thereto (collectively, the "Financial
Statements"), in each case accompanied by the qualified reports of Xxxxx &
Associates in the form attached as Exhibit C hereto, and (ii) the unaudited
balance sheet of Suramco as at August 30, 1996 and unaudited statements of
income for the period then ended, and the unaudited balance sheets of Arisur and
Minera Andacaba as at June 30, 1996 and the related unaudited statements of
operations for the nine months then ended (the "Interim Financial Statements").
The Financial Statements and the Interim Financial Statements (x) have been
prepared from the books and records of Suramco, Arisur and Minera Andacaba, (y)
have been
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prepared in accordance with generally accepted accounting principles
consistently applied during such periods and (z) present fairly the respective
financial conditions, results of operations and cash flows of said entities as
at the dates, and for the periods, stated therein, subject, in the case of the
Interim Financial Statements, to normal and customary year-end adjustments.
Section 2.8 Absence of Undisclosed Liabilities. None of Suramco, Arisur or
Minera Andacaba has liabilities or obligations of any nature, whether accrued,
absolute, contingent or otherwise, except (i) as set forth in Schedule 2.8 and
as set forth or reserved against in the Interim Financial Statements, (ii)
liabilities or obligations incurred since June 30, 1996 in the ordinary course
of business and consistent with past practice and which individually and in the
aggregate are not material to Suramco, Arisur or Minera Andacaba.
Section 2.9 Absence of Adverse Changes. Since September 30, 1995 Suramco,
Arisur and Minera Andacaba each have carried on their respective businesses in
the ordinary course and consistent with past practice. Except as set forth in
Schedule 2.9 hereto, since September 30, 1995 there has not been: (i) any
material adverse change in the respective conditions (financial or otherwise),
assets, liabilities, operations, businesses or prospects of Suramco, Arisur or
Minera Andacaba; (ii) any material damage, destruction or loss, whether or not
covered by insurance, adversely affecting the respective assets or operations of
Suramco, Arisur or Minera Andacaba; (iii) any sale, transfer, lease or other
disposition of any of the respective material properties or assets of Suramco,
Arisur or Minera Andacaba, other than sales from inventory in the ordinary
course of business; (iv) any increase in the compensation payable or to become
payable by Suramco, Arisur or Minera Andacaba to any of their respective
officers, or any material increase in such compensation payable or to become
payable to employees or agents,
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or any bonus payment or arrangement made to, or to be made to or with, any
thereof; (v) any labor trouble or any event or condition of any character
materially and adversely affecting the respective operations, prospects or
businesses of Suramco, Arisur or Minera Andacaba; (vi) any discharge or
satisfaction of any Lien, or payment of any obligation or liability, absolute,
accrued, contingent or otherwise, whether due or to become due, other than
current liabilities shown on the Interim Financial Statements; (vii) any Lien on
any of the respective properties or assets, tangible or intangible, of Suramco,
Arisur or Minera Andacaba; or (viii) paid or declared any dividend or
distribution in respect of shares of the respective capital stocks of Suramco,
Arisur and Minera Andacaba or any repurchase or agreement to repurchase any
such shares.
Section 2.10 Taxes. Except as set forth in Schedule 2.10 hereto, Suramco,
Arisur and Minera Andacaba have duly filed all tax returns required to be filed
and have paid in full all taxes, interest, penalties, assessments and
deficiencies due or claimed to be due from all taxing authorities having
jurisdiction over such entities (including taxes on properties, income,
franchises, licenses, sales, payrolls and social security). The provisions for
income and other taxes payable reflected in the respective consolidated balance
sheets of said entities as of the respective Financial Statements and in their
respective Interim Financial Statements make adequate provision for all accrued
and unpaid taxes of Suramco, Arisur and Minera Andacaba as at said dates,
whether or not disputed, and said entities have made adequate provision for such
taxes on their respective books and records. There are no tax liens (other than
liens for taxes which are not yet due and payable) on any of the respective
properties of Suramco, Arisur or Minera Andacaba, no tax claims asserted, no
basis for any such claim and no agreements with
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or received from any governmental or regulatory agency pertaining to the tax
treatment of Suramco, Arisur or Minera Andacaba or any of their interests in any
of their respective properties.
Section 2.11 Title to Properties. All of the properties and assets of every
kind and description which are reflected on the consolidated balance sheets of
Suramco at August 30, 1996 and, in respect of Arisur and Minera Andacaba, as at
June 30, 1996 (other than inventory transferred by Suramco, Arisur or Minera
Andacaba in the ordinary course of business), is either (i) owned absolutely by
Suramco, Arisur or Minera Andacaba, as the case may be, free and clear of Liens,
except as set forth in Schedule 2.11 hereto, or (ii) leased or otherwise used or
exploited under concessions or similar rights by Suramco, Arisur or Minera
Andacaba, pursuant to leases, concessions or similar rights listed in Schedule
2.11 hereto. All leases, concessions or rights set forth in Schedule 2.11 are
valid, binding and in full force and effect. None of Suramco, Arisur or Minera
Andacaba nor, to the best knowledge of Sellers, any other party thereto, is in
default thereunder, and no event has occurred which, with notice and/or lapse of
time, would constitute a default by Suramco, Arisur or Minera Andacaba, or to
the best knowledge of Sellers, any other party thereto. Suramco, Arisur and
Minera Andacaba have all easements and rights, including easements for power
lines, water lines, roadways and other access, necessary to conduct their
respective businesses as currently conducted.
Section 2.12 Personal and Real Properties. (i) Schedule 2.12(i) hereto
correctly sets forth an accurate list of all tangible personal property which
was owned of record or beneficially by each of Suramco, Arisur and Minera
Andacaba as at September 30, 1996, together with any material changes since such
date, including, without limitation, all vehicles (motor or other) and
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all machinery and equipment; all such vehicles, machinery and equipment and
other personal property are in good operating condition and repair, reasonable
wear and tear excepted, and, to the best of Sellers' knowledge after reasonable
inquiry, the operation thereof conforms with all applicable regulations and
other laws. All such personal property is owned by Suramco, Arisur or Minera
Andacaba, as the case may be, free and clear of any Lien, except as set forth in
Schedule 2.12(i) hereto.
(ii) Schedule 2.12(ii) hereto correctly sets forth an accurate list and
summary description of all real property which was owned of record or
beneficially by each of Suramco, Arisur and Minera Andacaba as of the date
hereof, all installations, sites and places of business located thereon are, in
all material respects, in good operating condition and repair, reasonable wear
and tear excepted, and, to the knowledge of Sellers' after reasonable inquiry,
conform with all applicable ordinances and existing and proposed regulations and
building, zoning and other laws.
Section 2.13 Environmental Matters. There are no conditions, occurrences or
activities at or on any of the properties described in Schedule 2.12(ii) hereto,
or any other real property in which Suramco, Arisur or Minera Andacaba holds any
interest, which constitute a violation of, or give rise to liability under, any
applicable laws, regulations, ordinances or orders providing for health and
safety or protection of the environment, or that may give rise to an obligation
to contribute to the remediation of any contamination of air, water or land
(collectively, "Environmental Laws"). Such properties have not in the past, and
to the knowledge of Sellers, are not now subject to any investigation,
assessment, or study by any person or governmental or regulatory agency related
to potential or actual violations or
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enforcement of any Environmental Law. Suramco, Arisur and Minera Andacaba are in
compliance with all notification and reporting requirements of any Environmental
Laws applicable to their respective properties and operations.
Section 2.14 Notes, Accounts Receivable. All receivables of Suramco,
Arisur and Minera Andacaba (including accounts receivable, loans receivable,
notes and advances) have arisen from bona fide transactions in the ordinary
course of business and consistent with past practice; are owned by said entities
free and clear of any Lien and are accurately reflected on the Interim Financial
Statements or with respect to receivables created after June 30, 1996, are
accurately and fairly reflected in the respective books and records of Suramco,
Arisur and Minera Andacaba and, except for any reserve set forth in the Interim
Financial Statements (or with respect to receivables created after June 30, 1996
in the books and records of Arisur and Minera Andacaba), are fully collectible.
Section 2.15 Contracts, Etc. Schedule 2.15 hereto correctly sets forth all
requirements, arrangements or understandings, whether written or oral, in
respect of any indebtedness between Suramco, Arisur or Minera Andacaba and any
of their respective Affiliates (as such term is defined in Rule 405 of the
Securities Act) and all such indebtedness has been paid in full or otherwise
cancelled and all such arrangements, understandings or agreements have been
terminated as of the date hereof. All material contracts and commitments of
Suramco, Arisur and Minera Andacaba as of the date hereof are valid and in full
force and effect. None of said parties nor, to the best knowledge of Sellers,
any other party thereto, is in default thereunder, and no event has occurred
which, with notice and/or lapse of time, would constitute a default by Suramco,
Arisur or Minera Andacaba, or to the best knowledge of Sellers, any other party
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thereto. Schedule 2.15 hereto lists (except to the extent listed in other
schedules to this Agreement) all such contracts and commitments as of June 30,
1996, and there have been no material changes thereto since such date.
Section 2.16 Employees and Organizational Chart. Schedule 2.16 hereto
contains a true and complete list as of June 30, 1996 of (i) all of the
employees of each of Suramco, Arisur and Minera Andacaba, whether full-time or
part-time and consultants engaged by such entities and the compensation or other
benefits payable to each, together with an organizational chart, as of such
date, indicating names, titles and responsibilities of their respective
management and supervisory personnel, and (ii) all employment or collective
bargaining or consulting agreements in respect of employees of Suramco, Arisur
and Minera Andacaba, and there has been no material change in the information
set forth in such Schedule through the date of this Agreement. There are no
disputes currently subject to any grievance procedure, arbitration or
litigation, and none of Suramco, Arisur or Minera Andacaba, nor, to the best
knowledge of Sellers, any other party thereto, is in default thereunder, and no
event has occurred which with notice and/or lapse of time, would constitute a
default by Sellers, or, to the best knowledge of Sellers, any other party
thereto. There are no strikes, lockouts, work stoppage, slowdowns,
jurisdictional disputes occurring or, to Sellers' knowledge after due inquiry,
threatened in connection with the properties or operations of Suramco, Arisur or
Minera Andacaba.
Section 2.17 Litigation. There is no Litigation (as hereinafter defined)
(i) by or before any court, governmental body or other regulatory or
administrative agency or commission, domestic or foreign, or any arbitration
pending, or, to the knowledge of Sellers after due inquiry, threatened, to which
Sellers, Suramco, Arisur or Minera Andacaba is a party or by
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which any of their respective assets or properties may be bound or affected,
which, if adversely decided would have a material adverse effect on Suramco,
Arisur or Minera Andacaba; and (ii) by or before any court, governmental or
regulatory agency, or arbitrator, in each case pending or, to the knowledge of
Sellers, threatened, which seeks to restrain, enjoin, prevent the consummation
of, or otherwise challenge this Agreement or any of the transactions
contemplated hereby. For purposes of this Agreement, "Litigation" shall mean any
action, suit, claim, proceeding, investigation or written governmental inquiry.
Section 2.18 Business Permits. Suramco, Arisur and Minera Andacaba have,
to the best of Sellers' knowledge after due inquiry, secured all permits,
licenses or other authorizations necessary from all relevant governmental or
regulatory agencies to operate their respective businesses as presently
conducted or as presently proposed to be conducted. All such permits, licenses
or other authorizations are listed in Schedule 2.18 hereto. Sellers shall
cooperate with Buyer (at no cost to Buyer) to obtain any additional, or to
modify any existing, permits or authorizations necessary in connection with the
transactions contemplated hereby.
Section 2.19 Insurance. Suramco, Arisur and Minera Andacaba each are
adequately insured with reputable insurers in respect of their respective
businesses, operations and the properties and assets related thereto, against
risk normally insured against by companies in similar lines of business.
Schedule 2.19 hereto lists all fire, theft, casualty, liability, business
disruption, products liability and other insurance policies insuring such
businesses, operations and the properties and assets related thereto, specifying
with respect to each such policy the name of the insurer, the risk insured
against, the limits of coverage, the deductible amount (if
16
any), the premium rate and the date through which coverage will continue by
virtue of premiums already paid.
Section 2.20 Compliance with Applicable Law. Suramco, Arisur and Minera
Andacaba have, to the best of Sellers' knowledge after due inquiry, complied
with all applicable laws and regulations of domestic and foreign governments and
all agencies thereof which affect the respective businesses of Suramco, Arisur
and Minera Andacaba or any owned, used or leased properties employed in such
businesses and to which Suramco, Arisur or Minera Andacaba may be subject,
including, without limitation, safety, health and environmental laws and
regulations, and no claims have been filed against any of said entities alleging
a violation of any such laws or regulations.
Section 2.21 Bank Accounts; Powers of Attorney. Schedule 2.21 hereto sets
forth a complete and correct list of showing (i) all bank accounts of each of
Suramco, Arisur and Minera Andacaba, together with, in respect of each such
account, the account number, the names of all signatories thereof and the
authorized powers of each such signatory; and (ii) the names of all persons
holding powers of attorney from Suramco, Arisur and Minera Andacaba and a
summary statement of the terms thereof.
Section 2.22 Minute Books, etc. The respective minute books, stock
certificates and stock ledgers of Suramco, Arisur and Minera Andacaba are
complete and correct in all material respects and fairly reflect the conduct of
said entities' respective businesses. The minute books of Suramco, Arisur and
Minera Andacaba contain accurate and complete records of all meetings or written
consents to action of the respective Boards of Directors and stockholders of
Suramco,
17
Arisur and Minera Andacaba and accurately reflect all corporate actions of said
entities which are required by law to be passed upon by said Boards of Directors
or stockholders.
Section 2.23 Disclosure. No representation or warranty by Sellers (or any
of them severally) contained in this Agreement and no statement contained in any
Schedule, certificate or other document or instrument delivered by Sellers or to
be delivered pursuant to this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit to state any material fact
necessary to make the statements contained therein not misleading. The foregoing
representations and warranties are made by Sellers with the knowledge and
expectation that Buyer is placing complete reliance thereon in entering into,
and performing its obligations under, this Agreement, and the same shall not be
affected in any respect whatsoever by any investigation heretofore or hereafter
conducted by or on behalf of Buyer, whether in contemplation of or pursuant to
this Agreement or otherwise. For the avoidance of confusion, it is hereby
stipulated that with respect to any oral agreement or commitment disclosed in
any Schedule, only those terms of such oral agreement expressly set forth in
such Schedule shall be deemed to have been disclosed.
Section 2.24 Brokers. No broker or finder has acted on behalf of Seller in
connection with this Agreement or any transactions provided for hereby and
Sellers agree to indemnify Buyer for any broker's or finder's fees that may be
payable in connection with any action taken by any or all Sellers.
18
ARTICLE III
Representations and Warranties of Buyer
---------------------------------------
Buyer represents and warrants to Sellers as follows:
Section 3.1 Authorization; Binding Obligation. Buyer is a company
duly organized, validly existing and in good standing under the laws of the
State of Delaware; it has all requisite corporate power and authority to own,
operate and lease the properties and assets it now owns, operates and leases and
to carry on its business as presently (or as contemplated to be) conducted; it
has the requisite power to execute, deliver and perform this Agreement and any
documents contemplated herein to which it is or will be a party and to
consummate the transactions contemplated hereby and thereby; all action on its
part necessary to approve or to authorize the execution, delivery and
performance of this Agreement and any such documents to which it is party and
the consummation of the transactions contemplated hereby and thereby has been
duly taken; this Agreement is the valid and binding obligation of, enforceable
in accordance with its terms against, Buyer, except as enforcement thereof may
be limited by bankruptcy, insolvency, conservatorship, receivership,
liquidation, reorganization, moratorium or similar laws or general equitable
principles; and any related document thereto is, or upon execution and delivery
thereof will be, a valid and binding obligation of, enforceable in accordance
with its terms against, it, except as enforcement thereof may be limited by
bankruptcy, insolvency, conservatorship, receivership, liquidation,
reorganization, moratorium or similar laws or general equitable principles.
Section 3.2 Ownership of the Atlas Shares. The authorized capital
stock of Buyer consists of 50,000,000 shares of common stock, of which
20,092,270 are issued and outstanding
19
on the date hereof, and 1,000,000 shares of preferred stock, par value US$1.00
per share, of which no shares are outstanding on the date hereof. The Atlas
Shares are duly authorized, validly issued, fully paid and non-assessable. There
are no agreements or commitments to which Buyer is a party or by which it is
bound for the redemption or repurchase of any shares of its capital stock.
Except as identified in the Exchange Act Filings (as hereinafter defined) or in
Schedule 3.2, there are no outstanding options, warrants, subscription or other
rights to purchase, or securities convertible into or exchangeable for, shares
of capital stock of Buyer and (except as otherwise contemplated by this
Agreement, the parties hereto or as set forth in the Exchange Act Filings) there
are no agreements or commitments to which Buyer is a party or by which it is
bound pursuant to which Buyer is or may be bound to issue additional shares of
its capital stock.
Section 3.3 No Conflicts. Neither the execution, delivery or
performance by Buyer of this Agreement and any related agreement, nor the
consummation by it of the transactions contemplated hereby or thereby, will: (a)
constitute an event of default under, permit the termination of, give rise to a
right to accelerate any indebtedness under, any contract, lease, or governmental
permit to which Buyer is a party, is maker or guarantor, or by which it is
bound; (b) violate any order, writ, injunction, decree, judgment, ruling or law
applicable to Buyer or by which Buyer or any of its properties is bound; or (c)
require any consent, approval or authorization of any governmental or regulatory
agency; other than for such of the foregoing matters which, or the absence of
which, would not, individually or when taken together with all other such
related matters, have a material adverse effect on Buyer.
20
Section 3.4 SEC Reports and Financial Statements. Buyer has heretofore
delivered to Sellers complete and correct copies of all reports and other
filings filed by Buyer with the SEC pursuant to the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder (the "Exchange Act")
since January 1, 1995 (such reports and other filings collectively referred to
herein as the "Exchange Act Filings"). As of their respective dates, the
Exchange Act Filings did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The audited consolidated financial statements of Buyer
included in the Exchange Act Filings (i) were prepared from the books and
records of Buyer and its consolidated subsidiaries, (ii) were prepared in
accordance with generally accepted accounting principles applied on a consistent
basis (except as may be indicated therein or in the notes or schedules thereto)
and (iii) present fairly the financial position of Buyer and its consolidated
subsidiaries as at the dates thereof and the results of their operations and
cash flows (or changes in financial positions, for the fiscal year ended
December 31, 1995 and earlier years) for the periods then ended. The unaudited
financial statements included in the Exchange Act Filings (the "Buyer Interim
Financial Statements") comply in all material respects with the published rules
and regulations of the SEC with respect thereto; and such unaudited financial
statements (i) were prepared from the books and records of Buyer and its
consolidated subsidiaries, (ii) were prepared in accordance with generally
accepted accounting principles, except as otherwise permitted under the Exchange
Act and the rules and regulations thereunder, on a consistent basis (except as
may be indicated therein or in the notes or schedules thereto) and (iii) present
fairly the financial position of Buyer and its
21
consolidated subsidiaries as at the dates thereof and the results of their
operations and cash flows (or changes in financial condition) for the periods
then ended, subject to normal year-end adjustments and any other adjustments
described therein or in the notes or schedules thereto.
Section 3.5 Absence of Adverse Changes. Since December 31, 1995 Buyer
has carried on its business in the ordinary course and consistent with past
practice. Except as set forth in Schedule 3.5 hereto, since December 31, 1995
there has not been: (i) any material adverse change in the condition (financial
or otherwise), assets, liabilities, operations, business or prospects of Buyer;
(ii) any material damage, destruction or loss, whether or not covered by
insurance, adversely affecting the assets or operations of Buyer; (iii) any
sale, transfer, lease or other disposition of any of the properties or assets of
Buyer, other than sales from inventory in the ordinary course of business; (iv)
any increase in the compensation payable or to become payable by Buyer to any of
its officers or any material increase in such compensation payable or to become
payable to employees or agents, or any bonus payment or arrangement made to, or
to be made to or with, any thereof; (v) any labor trouble or any event or
condition of any character materially and adversely affecting the operations,
prospects or business of Buyer; (vi) any discharge or satisfaction of any Lien,
or payment of any obligation or liability, absolute, accrued, contingent or
otherwise, whether due or to become due, other than current liabilities shown on
the Buyer Interim Financial Statements; (vii) any Lien on any of its properties
or assets, tangible or intangible; or (viii) paid or declared any dividend or
distribution in respect of shares of its capital stock or any repurchase or
agreement to repurchase any such shares.
Section 3.6 Litigation. Except as set forth in Schedule 3.6 hereto and
in the Exchange Act Filings, there is no Litigation (as hereinafter defined) (i)
by or before any court,
22
governmental body or other regulatory or administrative agency or commission,
domestic or foreign, or any arbitration pending, or, to the knowledge of Buyer
after due inquiry, threatened, to which Buyer is a party or by which any of its
assets or properties may be bound or affected, which, if adversely decided would
have a material adverse effect on Buyer; and (ii) by or before any court,
governmental or regulatory agency, or arbitrator, in each case pending or, to
the knowledge of Buyer, threatened, which seeks to restrain, enjoin, prevent the
consummation of, or otherwise challenge this Agreement or any of the
transactions contemplated hereby. For purposes of this Agreement, "Litigation"
shall mean any action, suit, claim, proceeding, investigation or written
governmental inquiry.
Section 3.7 Investment; Experience. Buyer is purchasing the Suramco Shares
for investment only and not with a view to resale or distribution thereof. Buyer
is experienced in the acquisition and management of businesses similar to those
of Suramco, Arisur and Minera Andacaba.
Section 3.8 Brokers. No broker or finder has been employed which is
entitled to a fee by reason of the transactions contemplated hereby other than
Endeavour Financial Inc., whose fees shall be borne in their entity by Buyer.
23
ARTICLE IV
Covenants
----------
Section 4.1 Directorship. Buyer agrees to use its best efforts to cause its
Board of Directors, promptly following and effective as of the date of this
Agreement, to increase the Board of Directors from seven to eight members and,
to fill the vacancy created by such increase, to elect X.X. Xxxxxx as a Class I
Director. Through the date of Buyer's next Annual Meeting of Stockholders at
which Class I Directors are elected, in the event that Xx. Xxxxxx is unable to
attend any meeting or meetings of Buyer's Board of Directors, the Board of
Directors agrees to invite X.X. XxXxxxxx to attend such meeting on Xx. Xxxxxx'
behalf.
Section 4.2 Covenant Not to Compete. Except as specifically contemplated
and referred to in Schedule 4.2 hereto or the consulting agreement referred to
in Section 1.4(b) hereof, each Seller and each affiliate of said Seller (as such
term is defined in Rule 405 of the Securities Act) agrees that, for a period of
three (3) years after the date of this Agreement, Sellers and each such
affiliate of Sellers shall not, directly or indirectly, own (other than not more
than 2% of the issued and outstanding capital stock of any company whose shares
are traded on a national stock exchange or quoted on NASDAQ in the United States
or which are traded on the facilities of a Designated Offshore Securities Market
(as defined in Rule 902 under the Securities Act)), manage, operate, work for,
consult with or otherwise provide services to, or otherwise be affiliated with,
any corporation, person or entity engaged in the mining and/or milling or other
processing of base or precious metals in Bolivia. Buyer acknowledges and agrees
that this prohibition shall not apply to any direct or indirect ownership,
operation or other
24
affiliation that Sellers may now or hereafter have with the San Xxxx mine
located in the Province of Cercado, Department of Oruro, Bolivia.
Section 4.3 Transfer Taxes. Sellers shall be responsible for, and agree to
pay promptly when and if due, all transfer, stamp, use or any other similar
taxes payable in any jurisdiction in connection with or arising from the sale
and transfer of the Suramco Shares to Buyer hereunder.
Section 4.4 Best Efforts.
------------
(a) Upon the terms hereof, each of the parties hereto agrees to take or
cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective the transactions
contemplated by this Agreement and any related documents thereto.
(b) Except as otherwise expressly provided for in this Agreement, Buyer and
Sellers shall use their best efforts to obtain at the earliest practicable date
all consents required for the consummation of the transactions contemplated by
this Agreement and any related documents thereto, including without limitation
all consents, permissions and approvals required by the relevant authorities in
the State of Nevada, the Cayman Islands and Bolivia.
(c) Buyer and Sellers shall provide such information and cooperate fully
with each other hereto in making such applications, filings and other
submissions which may be required or reasonably necessary in order to obtain all
approvals, consents, authorizations and waivers as may be required from any
governmental or regulatory agency and others in connection with the transactions
contemplated by this Agreement and any related documents thereto.
25
(d) Except as otherwise expressly provided for in this Agreement, Buyer and
Sellers shall promptly take all actions necessary to make each filing,
including, without limitation, any supplemental filing, which any of them may be
required to make with any governmental or regulatory agency as a condition to or
consequence of the consummation of the transactions contemplated by this
Agreement or any related document thereto.
Section 4.5 Further Assurances. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
In case at any time after the date of this Agreement any further action is
necessary or desirable to carry out the purposes hereof, Sellers and the proper
officers of Buyer, Suramco, Arisur and Minera Andacaba shall take all such
action.
ARTICLE V
Indemnification and Related Matters
-----------------------------------
Section 5.1 Indemnification by Sellers. Sellers jointly and severally agree
to indemnify and hold harmless Buyer and its directors, officers and employees
against and in respect of any and all loss, liability, obligation, damage,
deficiency or expense resulting from (a) any misrepresentation, breach of any
warranty or non-fulfillment of any agreement of Sellers under the terms of this
Agreement or in any agreement or certification furnished pursuant hereto; (b)
any claim that Suramco has not fully paid all consideration payable in
connection with its acquisition of the Arisur Shares and the Minera Andacaba
Shares, or that further consideration
26
is payable by Suramco in respect of such Shares; or that Suramco is not the sole
record and beneficial owner of such Shares, in each case free and clear of all
Liens, or that as a result of the transfer of the Arisur Shares and the Minera
Andacaba Shares pursuant to this Agreement, Buyer has not acquired good and
marketable title to such Shares free and clear of all Liens; and (c) any
actions, suits, proceedings, demands, judgments, costs and reasonable legal,
investigatory and other expenses incident to any of the foregoing (regardless of
whether, in the case of third party actions, suits or proceedings, Sellers may
have a meritorious defense). For the avoidance of confusion, it is hereby
stipulated that any information provided by Sellers to Buyer in connection with
the circumstances surrounding the acquisition of the Arisur Shares from Xxxx and
Xxx Xxxxx Xxxxxxxxxxx shall not relieve Sellers of their obligation under this
Section 5 to indemnify Buyer in full in respect of any and all loss, liability,
obligation, damage, deficiency or expense in respect of any claim that Suramco
has not fully paid all consideration payable in connection with its acquisition
of the Arisur Shares, or that further consideration is payable by Suramco in
respect of such Shares.
Section 5.2 Indemnification by Buyer. Buyer agrees to indemnify and hold
harmless Sellers against and in respect of any and all loss, liability,
obligation, damage, deficiency or expense resulting from (a) any
misrepresentation, breach of any warranty or non-fulfillment of any agreement of
Buyer under the terms of this Agreement or in any statement or certification
furnished pursuant hereto; and (b) any actions, suits, proceedings, demands,
judgments, costs and reasonable legal, investigatory and other expenses incident
to any of the foregoing (regardless of whether, in the case of third party
actions, suits or proceedings, Buyer may have a meritorious defense).
27
Section 5.3 Procedure. Promptly after receipt by any person or persons (as
the case may be) that is or are entitled to indemnification under this Section 5
(each, an "Indemnified Party") of notice of the commencement of any action in
respect of which the Indemnified Party will seek indemnification hereunder, the
Indemnified Party shall notify the person obligated to provide such
indemnification (the "Indemnifying Party") thereof in writing, but any failure
to so notify the Indemnifying Party shall not relieve the Indemnifying Party
from any liability that it may have to the Indemnified Party under this Section
5, except to the extent that the Indemnifying Party is prejudiced by the failure
to give such notice. The Indemnifying Party shall be entitled to participate in
the defense of such action and to assume control of such defense with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that:
(a) the Indemnified Party shall be entitled to participate in the
defense of such claim and to employ counsel at its own expense to assist in
the handling of such claim;
(b) the Indemnifying Party shall obtain the prior written approval of
the Indemnified Party before entering into any settlement of such claim or
ceasing to defend against such claim, if pursuant to or as a result of such
settlement or cessation, injunctive or other equitable relief would be
imposed against the Indemnified Party or the Indemnified Party would be
adversely affected thereby;
(c) the Indemnifying Party shall not consent to the entry of any
judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by each claimant or plaintiff to the
Indemnified Party of a release from all liability in respect of such claim;
and
28
(d) the Indemnifying Party shall not be entitled to control the
defense of any claim unless within 15 days after receipt of such written
notice from the Indemnified Party the Indemnifying Party confirms in
writing its responsibility for such defense and reasonably demonstrates
that it will be able to pay the full amount of the reasonably expected
liability in connection with any such claim.
After written notice by the Indemnifying Party to the Indemnified Party of its
election to assume control of the defense of any such action in accordance with
the foregoing, (i) the Indemnifying Party shall not be liable to such
Indemnified Party hereunder for any expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof, and (ii) as long as
the Indemnifying Party is reasonably contesting such action in good faith, the
Indemnified Party shall not admit any liability with respect to, or settle,
compromise or discharge the claim underlying such action without the
Indemnifying Party's prior written consent. If the Indemnifying Party elects to
so participate in or assume the defense of any such action, the Indemnified
Party shall cooperate with the Indemnifying Party in connection with the
defense. If the Indemnifying Party does not assume control of the defense of
such claim as provided in this Section 5, the Indemnified Party shall have the
right to defend and/or settle such claim in such manner as it may deem
appropriate at the cost and expense of the Indemnifying Party, and the
Indemnifying Party will promptly reimburse the Indemnified Party therefor in
accordance with this Section 5. The reimbursement of fees, costs and expenses
required by this Section 5 shall be made by periodic payments during the course
of the investigation or defense, as and when bills are received or expenses
incurred.
29
Section 5.4 Related Matters. (a) Without prejudice to any remedies
available to it by law or otherwise, Buyer shall have the right to offset
against any payments or other consideration payable by it to any Seller or
Sellers after the date of this Agreement pursuant to the terms hereof any claims
that Buyer may have against such Seller or Sellers, for any breach of any
representations, warranties or undertakings.
(b) In the event that an Indemnifying Party shall be obligated to indemnify
the Indemnified Party pursuant to this Section 5, an Indemnifying Party shall,
upon payment of such indemnity in full, be subrogated to all rights of the
Indemnified Party with respect to the claims to which such indemnification
relates. In the event that an Indemnified Party becomes entitled to any
indemnification from an Indemnifying Party, such indemnification shall be made
in cash upon demand. Sellers shall not be entitled to any contribution or
reimbursement from Suramco, Arisur or Minera Andacaba with respect to payments
made by Sellers under this Section 5.
ARTICLE VI
Miscellaneous
-------------
Section 6.1 Headings. The descriptive headings of the several Articles and
Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
Section 6.2 Amendment. No modification or amendment of this Agreement shall
be effective for any purpose unless in writing and signed by the parties hereto.
Section 6.3 Notices. Any notices other communications required or permitted
hereunder shall be given in writing and shall be delivered or sent by facsimile,
next day delivery
30
service, personal delivery or certified or registered mail, postage prepaid,
addressed as follows:
If to Buyer, to:
Atlas Corporation
000 00xx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: President
Fax: (000) 000-0000
Copy to:
Coudert Brothers
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
If to Sellers to:
c/o Xx. X.X. Xxxxxx
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Fax: (000) 000-0000
Copy to:
Xxxxxx, Xxxxxxxx & Xxxx
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
or to such other address or telefax number as shall be furnished in writing by
such party, and any such notice or communication shall be effective and be
deemed to have been given as of the date so dispatched, delivered or mailed;
provided, that, any notice or communications changing any of the addresses set
forth above shall be effective and deemed giving only upon its receipt.
31
Section 6.4 Successors. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other party.
Section 6.5 Entire Agreement. Exhibits and Schedules referred to herein,
whether or not attached hereto, are hereby incorporated in and made a part of
this Agreement as if set forth in full herein. This Agreement constitutes the
sole and entire agreement among the parties hereto with respect to the subject
matter hereof and supersedes all prior arrangements or understandings with
respect thereto; and there are no express or implied restrictions, agreements,
promises, representations, warranties, covenants or undertakings other than
those expressly set forth herein.
Section 6.6 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 6.7 Third Parties. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give any entity, other than the parties hereto and their
successors and permitted assigns, any rights or remedies under or by reason of
this Agreement.
32
Section 6.8 Counterparts. This Agreement may be executed in two or more
counterparts all of which shall be considered one and the same agreement and
each of which shall be deemed an original.
Section 6.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to principles of conflicts of law thereunder.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed as of the day and year first above written.
H.R AND XXXXXX X. XXXXXX ATLAS CORPORATION
/s/ X.X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
----------------------------------- ---------------------------------
X.X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: President
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
XXXX X. AND XXXXXXX X. XxXXXXXX
/s/ Xxxx X. XxXxxxxx
-----------------------------------
Xxxx X. XxXxxxxx
/s/ Xxxxxxx X. XxXxxxxx
-----------------------------------
Xxxxxxx X. XxXxxxxx
33
XXXXXXX X. AND XXXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxxxx X. Xxxxx
--------------------------------------------
Xxxxxxxx X. Xxxxx
XXXXXXX X. XXXXXX AND XXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxx X. Xxxxxx
--------------------------------------------
Xxx X. Xxxxxx
X.X. XXXXXX AS CUSTODIAN FOR
XXXXXXXX X. XXXXXX UNDER THE ARIZONA
UNIFORM TRANSFERS TO MINORS ACT
/s/ X.X. Xxxxxx
--------------------------------------------
Xxxxxxxx X. Xxxxxx
XXXX X. XxXXXXXX AS CUSTODIAN FOR
XXXXXXXXXX XXXXXXXX UNDER THE ARIZONA
UNIFORM TRANSFERS TO MINORS ACT
/s/ Xxxx X. XxXxxxxx
--------------------------------------------
Xxxxxxxxxx XxXxxxxx
34
XXXXXXX X. XXXXX AS CUSTODIAN FOR
XXXXXX X. XXXXX UNDER THE ARIZONA
UNIFORM TRANSFERS TO MINORS ACT
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
XXXX X. XxXXXXXX AS CUSTODIAN FOR
XXXXXX XxXXXXXX UNDER THE ARIZONA
UNIFORM TRANSFERS TO MINORS ACT
/s/ Xxxx X. XxXxxxxx
--------------------------------------------
Xxxxxx XxXxxxxx
XXXXXXX X. XXXXX AS CUSTODIAN FOR
XXXXX XXXXX UNDER THE ARIZONA
UNIFORM TRANSFERS TO MINORS ACT
/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
H. XXXXXX XXXXXX
/s/ H. Xxxxxx Xxxxxx
--------------------------------------------
P. XXXXX XXXXXX
/s/ P. Xxxxx Xxxxxx
--------------------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
XXXXXXXXX X. XXXXXX
/s/ Xxxxxxxxx X. Xxxxxx
--------------------------------------------
35
