ASSET PURCHASE AGREEMENT
by and among
Atlas Precious Metals,
Inc., as Seller
and
Golden Eagle
International, Inc. as Buyer
Dated: June 18, 2004
ASSET PURCHASE AGREEMENT
This
Asset Purchase Agreement (“Agreement”) is dated June 18, 2004, by and among
Golden Eagle International, Inc., a Colorado corporation (“Buyer”); and Atlas
Precious Metals, Inc., a Nevada corporation (“Seller”).
1. Definitions and Usage
1.1
Definitions. For purposes of this Agreement, the following terms and
variations thereof have the meanings specified or referred to in this Section 1.1.
“Assets”
– as set forth in Part 2.1.
“Best
Efforts” the efforts that a prudent Person desirous of achieving a result would use
in similar circumstances to achieve that result as expeditiously as possible, provided,
however, that a Person required to use Best Efforts under this Agreement will not be
thereby required to take actions that would result in a material adverse change in the
benefits to such Person of this Agreement and the Contemplated Transactions or to dispose
of or make any change to its business, expend any material funds or incur any other
material burden.
“Xxxx
of Sale” – as defined in Section 2.6.1(i).
“Breach”
– any breach of, or any inaccuracy in, any representation or warranty or any breach
of, or failure to perform or comply with, any covenant or obligation, in or of this
Agreement or any other Contract, or any event which with the passing of time or the giving
of notice, or both, would constitute such a breach, inaccuracy or failure.
“Business
Day” – any day other than (a) Saturday or Sunday or (b) any other day on which
banks in Colorado are permitted or required to be closed.
“Buyer”
– as defined in the first paragraph of this Agreement.
“Buyer
Indemnified Persons” – as defined in Section 11.2.
“Buyer’s
Closing Documents” – as defined in Section 4.2.1.
“Closing”
– as defined in Section 2.5.
“Closing
Date” – the date on which the Closing actually takes place.
“Code”
– the Internal Revenue Code of 1986.
“Consent”
– any approval, consent, ratification, waiver or other authorization.
“Contemplated
Transactions” — all of the transactions contemplated by this Agreement.
“Contract”
— any agreement, contract, Lease, consensual obligation, promise or undertaking
(whether written or oral and whether express or implied), whether or not legally binding.
“Damages”
— as defined in Section 11.2.
“Effective
Time” –June 24, 2004, or such other date on which the Closing occurs.
“Encumbrance”
— any charge, claim, community or other marital property interest, condition,
equitable interest, lien, option, pledge, security interest, mortgage, right of way,
easement, encroachment, servitude, right of first option, right of first refusal or
similar restriction, including any restriction on use, voting (in the case of any security
or equity interest), transfer, receipt of income or exercise of any other attribute of
ownership.
“Environment”
– soil, land surface or subsurface strata, surface waters (including navigable waters
and ocean waters), groundwaters, drinking water supply, stream sediments, ambient air
(including indoor air), plant and animal life and any other environmental medium or
natural resource.
“Environmental,
Health and Safety Liabilities” — any cost, damages, expense, liability,
obligation or other responsibility arising from or under any Environmental Law or
Occupational Safety and Health Law, including those consisting of or relating to:
|
(a) |
any
environmental, health or safety matter or condition (including on-site or
off-site contamination, occupational safety and health and regulation of any
chemical substance or product); |
|
(b) |
any
fine, penalty, judgment, award, settlement, legal or administrative proceeding,
damages, loss, claim, demand or response, remedial or inspection cost or
expense arising under any Environmental Law or Occupational Safety and Health
Law; |
|
(c) |
financial
responsibility under any Environmental Law or Occupational Safety and Health
Law for cleanup costs or corrective action, including any cleanup, removal,
containment or other remediation or response actions (“Cleanup”)
required by any Environmental Law or Occupational Safety and Health Law
(whether or not such Cleanup has been required or requested by any Governmental
Body or any other Person) and for any natural resource damages; or |
|
(d) |
any
other compliance, corrective or remedial measure required under any
Environmental Law or Occupational Safety and Health Law. |
The
terms “removal,” “remedial” and “response action” include
the types of activities covered by the United States Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA).
“Environmental
Law” — any Legal Requirement that requires or relates to:
|
(a) |
advising
appropriate authorities, employees or the public of intended or actual Releases
of pollutants or Hazardous Materials, violations of discharge limits or other
prohibitions and the commencement of activities, such as resource extraction or
construction, that could have significant impact on the Environment; |
|
(b) |
preventing
or reducing to acceptable levels the Release of pollutants or Hazardous
Materials into the Environment; |
|
(c) |
reducing
the quantities, preventing the Release or minimizing the hazardous
characteristics of wastes that are generated; |
|
(d) |
assuring
that products are designed, formulated, packaged and used so that they do not
present unreasonable risks to human health or the Environment when used or
disposed of; |
|
(e) |
protecting
resources, species or ecological amenities; |
|
(f) |
reclaiming,
restoring or maintaining mine sites; |
|
(g) |
reducing
to acceptable levels the risks inherent in the transportation of Hazardous
Materials, pollutants, oil or other potentially harmful substances; |
|
(h) |
cleaning
up pollutants or Hazardous Materials that have been Released, preventing the
Threat of Release or paying the costs of such clean up or prevention; or |
|
(i) |
making
responsible parties pay private parties, or groups of them, for damages done to
their health or the Environment or permitting self-appointed representatives of
the public interest to recover for injuries done to public assets. |
“Exchange
Act” — the Securities Exchange Act of 1934.
“Facilities”
– any real property, leasehold or other interest in real property currently owned or
operated by Seller, including the Tangible Personal Property and the underground
production cavities used or operated by Seller at the respective locations of the Real
Property. Notwithstanding the foregoing, for purposes of the definitions of
“Hazardous Activity” and “Remedial Action” and Sections 3.6 and 11.3,
“Facilities” shall mean any real property, leasehold or other interest in real
property currently or formerly owned or operated by Seller, including the Fixtures and
Tangible Personal Property used or operated by Seller at the respective locations of the
Real Property.
“GAAP”
— generally accepted accounting principles for financial reporting in the United
States, applied on a consistent basis.
“Governing
Documents” — with respect to any particular entity, (a) if a corporation, the
articles or certificate of incorporation and the bylaws; (b) if a general partnership, the
partnership agreement and any statement of partnership; (c) if a limited partnership, the
limited partnership agreement and the certificate of limited partnership; (d) if a limited
liability company, the articles of organization and operating agreement; (e) if another
type of Person, any other charter or similar document adopted or filed in connection with
the creation, formation or organization of the Person; (f) all equityholders’
agreements, voting agreements, voting trust agreements, joint venture agreements,
registration rights agreements or other agreements or documents relating to the
organization, management or operation of any Person or relating to the rights, duties and
obligations of the equityholders of any Person; and (g) any amendment or supplement to any
of the foregoing.
“Governmental
Authorization” — any Consent, license, registration or permit issued, granted,
given or otherwise made available by or under the authority of any Governmental Body or
pursuant to any Legal Requirement.
“Governmental
Body” – any:
|
(a) |
nation,
state, county, city, town, borough, village, district or other jurisdiction; |
|
(b) |
federal,
state, local, municipal, foreign or other government; |
|
(c) |
governmental
or quasi-governmental authority of any nature (including any agency, branch,
department, board, commission, court, tribunal or other entity exercising
governmental or quasi-governmental powers); |
|
(d) |
multinational
organization or body; |
|
(e) |
body
exercising, or entitled or purporting to exercise, any administrative,
executive, judicial, legislative, police, regulatory or taxing authority or
power; or |
|
(f) |
official
of any of the foregoing. |
“Hazardous
Activity” — the distribution, generation, handling, importing, management,
manufacturing, processing, production, refinement, Release, storage, transfer,
transportation, treatment or use (including any withdrawal or other use of groundwater) of
Hazardous Material in, on, under, about or from any of the Gold Bar Assets or the
Facilities on which the Gold Bar Assets are or were located and any other act, business,
operation or thing that increases the danger, or risk of danger, or poses an unreasonable
risk of harm, to persons or property in, on or near the Gold Bar Assets, or the Facilities
on which the Gold Bar Assets are or were located.
“Hazardous
Material” — any substance, material or waste which is or will foreseeably be
regulated by any Governmental Body, including any material, substance or waste which is
defined as a “hazardous waste,” “hazardous material,” “hazardous
substance,” “extremely hazardous waste,” “restricted hazardous
waste,” “contaminant,” “toxic waste” or “toxic
substance” under any provision of Environmental Law, and including petroleum,
petroleum products, asbestos, presumed asbestos-containing material or asbestos-containing
material, urea formaldehyde and polychlorinated biphenyls.
“Indemnified
Person” — as defined in Section 11.7.1.
“Indemnifying
Person” — as defined in Section 11.7.1.
“IRS”
— the United States Internal Revenue Service and, to the extent relevant, the United
States Department of the Treasury.
“Knowledge”
— an individual will be deemed to have Knowledge of a particular fact or other matter
if:
|
(a) |
that
individual is actually aware of that fact or matter; or |
|
(b) |
a
prudent individual could be expected to discover or otherwise become aware of
that fact or matter in the course of conducting a reasonably comprehensive
investigation regarding the accuracy of any representation or warranty
contained in this Agreement. |
A Person (other than an individual)
will be deemed to have Knowledge of a particular fact or other matter if any individual
who is serving, or who has at any time served, as a director, officer, partner, executor
or trustee of that Person (or in any similar capacity) has, or at any time had, Knowledge
of that fact or other matter (as set forth in (a) and (b) above), and any such individual
(and any individual party to this Agreement) will be deemed to have conducted a reasonably
comprehensive investigation regarding the accuracy of the representations and warranties
made herein by that Person or individual.
“Legal
Requirement” — any federal, state, local, municipal, foreign, international,
multinational or other constitution, law, ordinance, principle of common law, code,
regulation, statute or treaty.
“Liability”
— with respect to any Person, any liability or obligation of such Person of any kind,
character or description, whether known or unknown, absolute or contingent, accrued or
unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint
or several, due or to become due, vested or unvested, executory, determined, determinable
or otherwise, and whether or not the same is required to be accrued on the financial
statements of such Person.
“Material
Consents” — as defined in Section 7.3.
“Nonmaterial
Consents” – as defined in Section 2.7.2.
“Occupational
Safety and Health Law” — any Legal Requirement designed to provide safe and
healthful working conditions and to reduce occupational safety and health hazards,
including the Occupational Safety and Health Act, and any program, whether governmental or
private (such as those promulgated or sponsored by industry associations and insurance
companies), designed to provide safe and healthful working conditions.
“Order”
— any order, injunction, judgment, decree, ruling, assessment or arbitration award of
any Governmental Body or arbitrator.
“Ordinary
Course of Business” — an action taken by a Person will be deemed to have been
taken in the Ordinary Course of Business only if that action:
|
(a) |
is
consistent in nature, scope and magnitude with the past practices of such
Person and is taken in the ordinary course of the normal, day-to-day operations
of such Person; |
|
(b) |
does
not require authorization by the board of directors or equityholders of such
Person (or by any Person or group of Persons exercising similar authority) and
does not require any other separate or special authorization of any nature; and |
|
(c) |
is
similar in nature, scope and magnitude to actions customarily taken, without
any separate or special authorization, in the ordinary course of the normal,
day-to-day operations of other Persons that are in the same line of business as
such Person. |
“Person”
— an individual, partnership, corporation, business trust, limited liability company,
limited liability partnership, joint stock company, trust, unincorporated association,
joint venture or other entity or a Governmental Body.
“Proceeding”
— any action, arbitration, audit, hearing, investigation, litigation or suit (whether
civil, criminal, administrative, judicial or investigative, whether formal or informal,
whether public or private) commenced, brought, conducted or heard by or before, or
otherwise involving, any Governmental Body or arbitrator.
“Purchase
Price” — as defined in Section 2.2.
“Record”
— information that is inscribed on a tangible medium or that is stored in an
electronic or other medium and is retrievable in perceivable form.
“Related
Person” — With respect to a particular individual:
|
(a) |
each
other member of such individual’s Family; |
|
(b) |
any
Person that is directly or indirectly controlled by any one or more members of
such individual’s Family; |
|
(c) |
any
Person in which members of such individual’s Family hold (individually or
in the aggregate) a Material Interest; and |
|
(d) |
any
Person with respect to which one or more members of such individual’s
Family serves as a director, officer, partner, executor or trustee (or in a
similar capacity). |
With respect to a specified Person
other than an individual:
|
(a) |
any
Person that directly or indirectly controls, is directly or indirectly
controlled by or is directly or indirectly under common control with such
specified Person; |
|
(b) |
any
Person that holds a Material Interest in such specified Person; |
|
(c) |
each
Person that serves as a director, officer, partner, executor or trustee of such
specified Person (or in a similar capacity); |
|
(d) |
any
Person in which such specified Person holds a Material Interest; and |
|
(e) |
any
Person with respect to which such specified Person serves as a general partner
or a trustee (or in a similar capacity). |
For purposes of this definition, (a)
“control” (including “controlling,” “controlled by,” and
“under common control with”) means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise, and shall be
construed as such term is used in the rules promulgated under the Securities Act; (b) the
“Family” of an individual includes (i) the individual, (ii) the
individual’s spouse, (iii) any other natural person who is related to the individual
or the individual’s spouse within the second degree and (iv) any other natural person
who resides with such individual; and (c) “Material Interest” means direct or
indirect beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of voting
securities or other voting interests representing at least ten percent (10%) of the
outstanding voting power of a Person or equity securities or other equity interests
representing at least ten percent (10%) of the outstanding equity securities or equity
interests in a Person.
“Release”
— any release, spill, emission, leaking, pumping, pouring, dumping, emptying,
injection, deposit, disposal, discharge, dispersal, leaching or migration on or into the
Environment or into or out of any property.
“Remedial
Action” — all actions, including any capital expenditures, required or
voluntarily undertaken (a) to clean up, remove, treat or in any other way address any
Hazardous Material or other substance; (b) to prevent the Release or Threat of Release or
to minimize the further Release of any Hazardous Material or other substance so it does
not migrate or endanger or threaten to endanger public health or welfare or the
Environment; (c) to perform pre-remedial studies and investigations or post-remedial
monitoring and care; or (d) to bring all Facilities and the operations conducted thereon
into compliance with Environmental Laws and environmental Governmental Authorizations.
“Representative”
— with respect to a particular Person, any director, officer, manager, employee,
agent, consultant, advisor, accountant, financial advisor, legal counsel or other
representative of that Person.
“Restricted
Material Contract” – as defined in Section 2.7.1.
“Restricted Nonmaterial
Contract” – as defined in Section 2.7.2.
“Retained
Contracts” are all contracts of Seller that are not expressly assumed, in writing, by
the Buyer.
“SEC”
— the United States Securities and Exchange Commission.
“Securities
Act” – the United States Securities Act of 1933, as amended (15 U.S.C. §77a
et seq.).
“Seller”
— as defined in the first paragraph of this Agreement.
“Seller
Contract” — any Contract (a) under which Seller has or may acquire any rights or
benefits; (b) under which Seller has or may become subject to any obligation or liability;
or (c) by which Seller or any of the assets owned or used by Seller is or may become
bound.
“Seller’s
Closing Documents” – as defined in Section 3.2.1.
“Tangible
Personal Property” — all machinery, equipment, tools, furniture, office
equipment, computer hardware, supplies, materials, vehicles and other items of tangible
personal property (other than Inventories) of every kind owned or leased by Seller
(wherever located and whether or not carried on Seller’s books), together with any
express or implied warranty by the manufacturers or sellers or lessors of any item or
component part thereof and all maintenance records and other documents relating thereto.
“Tax”
— any income, gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, property, environmental, windfall profit, customs, vehicle, airplane,
boat, vessel or other title or registration, capital stock, franchise, employees’
income withholding, foreign or domestic withholding, social security, unemployment,
disability, real property, personal property, sales, use, transfer, value added,
alternative, add-on minimum and other tax, fee, assessment, levy, tariff, charge or duty
of any kind whatsoever and any interest, penalty, addition or additional amount thereon
imposed, assessed or collected by or under the authority of any Governmental Body or
payable under any tax-sharing agreement or any other Contract.
“Tax
Return” — any return (including any information return), report, statement,
schedule, notice, form, declaration, claim for refund or other document or information
filed with or submitted to, or required to be filed with or submitted to, any Governmental
Body in connection with the determination, assessment, collection or payment of any Tax or
in connection with the administration, implementation or enforcement of or compliance with
any Legal Requirement relating to any Tax.
“Third
Party” — a Person that is not a party to this Agreement.
“Third-Party
Claim” – any claim against any Indemnified Person by a Third Party, whether or
not involving a Proceeding.
“Threat
of Release” – a reasonable likelihood of a Release that may require action in
order to prevent or mitigate damage to the Environment that may result from such Release.
“WARN
Act” – as defined in Section 11.2.7.
|
1.2.1 |
Interpretation. In
this Agreement, unless a clear contrary intention appears: |
|
(j) |
The
singular number includes the plural number and vice versa; |
|
(ii) |
Reference
to any Person includes such Person’s successors and assigns but, if
applicable, only if such successors and assigns are not prohibited by this
Agreement, and reference to a Person in a particular capacity excludes
such Person in any other capacity or individually; |
|
(iii) |
Reference
to any gender includes each other gender; |
|
(iv) |
Reference
to any agreement, document or instrument means such agreement, document or
instrument as amended or modified and in effect from time to time in
accordance with the terms thereof; |
|
(v) |
Reference
to any Legal Requirement means such Legal Requirement as amended,
modified, codified, replaced or reenacted, in whole or in part, and in
effect from time to time, including rules and regulations promulgated
thereunder, and reference to any section or other provision of any Legal
Requirement means that provision of such Legal Requirement from time to
time in effect and constituting the substantive amendment, modification,
codification, replacement or reenactment of such section or other
provision; |
|
(vi) |
“Hereunder,” “hereof,” “hereto,” and
words of similar import shall be deemed references to this Agreement as a
whole and not to any particular Article, Section or other provision
hereof; |
|
(vii) |
“Including” (and
with correlative meaning “include”) means including without
limiting the generality of any description preceding such term; |
|
(viii) |
“Or” is
used in the inclusive sense of “and/or”; |
|
(ix) |
With
respect to the determination of any period of time, “from” means
“from and including” and “to” means “to but
excluding”; and |
|
(x) |
References
to documents, instruments or agreements shall be deemed to refer as well
to all addenda, exhibits, schedules or amendments thereto. |
|
1.2.2 |
Accounting
Terms and Determinations. Unless otherwise specified herein, all accounting terms
used herein shall be interpreted and all accounting determinations hereunder shall be
made in accordance with GAAP. |
|
1.2.3 |
Legal
Representation of the Parties. This Agreement was negotiated by the parties with the
benefit of legal representation, and any rule of construction or interpretation otherwise
requiring this Agreement to be construed or interpreted against any party shall not apply
to any construction or interpretation hereof. |
2 |
Sale
and Transfer of Assets; Closing |
|
2.1 |
Assets
to be Sold. Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing, but effective as of the Effective Time, Seller shall sell,
convey, assign, transfer and deliver to Buyer, and Buyer shall purchase and acquire from
Seller, all of Seller’s right, title and interest in and to the Assets which are
more particularly described on Schedule 2.1. All of the property and assets to be
transferred to Buyer hereunder are herein referred to collectively as the “Assets.” The
transfer of the Assets pursuant to this Agreement shall not include the assumption of any
Liability related to the Assets. |
|
2.2 |
Consideration.
The consideration for the Assets (the “Purchase Price”) will be 25,000,000
shares of restricted common stock of the Buyer (subject to the Seller’s signature to
a subscription agreement in the form of Schedule 2.2). |
|
2.3 |
No
Encumbrances. The Buyer will purchase, and the Seller will sell, the
Assets free and clear of all Encumbrances, and the transfer of the Assets pursuant to
this Agreement shall not include the assumption of any Liability related to the Assets. |
|
2.4 |
Allocation. The
Purchase Price shall be allocated in accordance with Schedule 2.4. After the Closing, the
parties shall make consistent use of the allocation, fair market value and useful lives
specified in Schedule 2.4 for all Tax purposes and in all filings, declarations and
reports with the IRS in respect thereof, including the reports required to be filed under
Section 1060 of the Code. Buyer shall prepare and deliver IRS Form 8594 to Seller within
45 days after the Closing Date to be filed with the IRS. In any Proceeding related to the
determination of any Tax, neither Buyer nor Seller nor any affiliate of either shall
contend or represent that such allocation is not a correct allocation. |
|
2.5 |
Closing. The
purchase and sale provided for in this Agreement (the “Closing”) will take
place at Denver, Colorado, commencing at 7:00 a.m. (local time) on the later of (a) June
24, 2004, or (b) the date that is five Business Days following the completion of the
Conditions Precedent, unless Buyer and Seller otherwise agree. Subject to the provisions
of Article 9, failure to complete the purchase and sale provided for in this Agreement on
the date and time and at the place determined pursuant to this Section 2.5 will not
result in the termination of this Agreement and will not relieve any party of any
obligation under this Agreement. In such a situation, the Closing will occur as soon as
practicable, subject to Article 9. 2.6 Closing Obligations. In
addition to any other documents to be delivered under other provisions of this Agreement,
at the Closing: |
|
2.6.1 |
Seller
shall deliver to Buyer: |
|
(i) |
a
xxxx of sale for all of the Assets that are Tangible Personal Property in form
to be agreed between Seller and Buyer which includes representations and
warranties that the Assets are being transferred free and clear of all
Encumbrances (the “Xxxx of Sale”); |
|
(ii) |
an assignment
of all of the Assets that are intangible personal property in form to be agreed
between Seller and Buyer with warranties of title as described above; |
|
(iii) |
the
subscription agreement; and |
|
2.6.2 |
Buyer
shall deliver to Seller: |
|
(i) |
A
certificate for the shares of the Buyer’s restricted common stock
constituting the Purchase Price in the name of the Seller or (in the
alternative) instruction letters to the Buyer’s transfer agent
providing irrevocable instructions to issue the shares and deliver them to
the Seller’s direction; |
3. |
Representations
and Warranties of Seller. Seller represents and warrants to Buyer
as follows: |
|
3.1 |
Organization
and Good Standing. Seller is a corporation duly organized, validly
existing and in good standing under the laws of Nevada, with full corporate power and
authority to conduct its business as it is now being conducted, to own or use the
properties and assets that it purports to own or use, and to perform all its obligations
under this Agreement. |
|
3.2 |
Enforceability;
Authority; No Conflict |
|
3.2.1 |
This
Agreement constitutes the legal, valid and binding obligation of Seller, enforceable in
accordance with its terms. Upon the execution and delivery by Seller of each other
agreement to be executed or delivered by any or all of Seller at the Closing
(collectively, the “Seller’s Closing Documents”), each of Seller’s
Closing Documents will constitute the legal, valid and binding obligation of Seller,
enforceable against it in accordance with its terms. Seller has the absolute and
unrestricted right, power and authority to execute and deliver this Agreement and the
Seller’s Closing Documents to which it is a party and to perform its obligations
under this Agreement and the Seller’s Closing Documents, and such action has been
duly authorized by all necessary action by Seller’s shareholders and board of
directors. |
|
3.2.2 |
Neither
the execution and delivery of this Agreement nor the completion or performance of any of
the Contemplated Transactions will, directly or indirectly (with or without notice or
lapse of time): |
|
(i) |
Breach
(A) any provision of any of the Governing Documents of Seller or (B) any
resolution adopted by the board of directors of the Seller; |
|
(ii) |
Breach
or give any Governmental Body or other Person the right to challenge any
of the Contemplated Transactions or to exercise any remedy or obtain any
relief under any Legal Requirement or any Order to which Seller or any of
the Assets, may be subject; |
|
(iii) |
Contravene,
conflict with or result in a violation or breach of any of the terms or
requirements of, or give any Governmental Body the right to revoke, withdraw,
suspend, cancel, terminate or modify, any Governmental Authorization that
is held by Seller or that otherwise relates to the Assets or to the
business of Seller; |
|
(iv) |
Cause
Buyer to become subject to, or to become liable for the payment of, any
Tax; |
|
(v) |
Breach
any provision of, or give any Person the right to declare a default or
exercise any remedy under, or to accelerate the maturity or performance
of, or payment under, or to cancel, terminate or modify, any Seller
Contract; |
|
(vi) |
Result
in the imposition or creation of any Encumbrance upon or with respect to
any of the Assets; or |
|
(vii) |
Require
the approval of the shareholders or creditors of the Seller. |
|
The |
Seller
is not required to give any notice to or obtain any Consent from any Person in connection
with the execution and delivery of this Agreement or the completion or performance of the
Contemplated Transaction. |
|
3.3 |
Title
To Assets; Encumbrances. Seller owns good and transferable title to all of the other
Assets free and clear of any Encumbrances. Seller warrants to Buyer
that, at the time of Closing, all other Assets shall be free and clear
of all Encumbrances. |
|
3.4 |
Condition
Of Facilities. Each item of Tangible Personal Property is in the repair
and operating condition in which it is found—as is, where is—ordinary wear and
tear having been inspected and acknowledged by the Buyer, is in an environmentally clean
condition, with all Hazardous Materials, including residues, removed, and is suitable for
immediate removal. |
|
3.5 |
Legal
Proceedings; Orders. |
|
3.5.1 |
There
is no pending or, to Seller's Knowledge, threatened Proceeding: |
|
(i) |
by
or against Seller or that otherwise relates to or may affect the business of,
or any of the assets owned or used by, Seller; or (ii) that
challenges, or that may have the effect of preventing, delaying, making illegal
or otherwise interfering with, any of the Contemplated Transactions. |
|
|
To the
Knowledge of Seller, no event has occurred or circumstance exists that is reasonably
likely to give rise to or serve as a basis for the commencement of any such Proceeding.
There are no Proceedings that could have a material adverse effect on the business,
operations, assets, condition or prospects of Seller or upon the Assets. |
|
3.5.2 |
There
is no Order to which Seller, its business or any of the Assets is subject; and to the
Knowledge of Seller, no officer, director, agent or employee of Seller is subject to any
Order that prohibits such officer, director, agent or employee from engaging in or
continuing any conduct, activity or practice relating to the business of Seller. |
|
3.6 |
Environmental
Matters. |
|
3.6.1 |
Seller
is, and at all times has been, in full compliance with, and has not been and is not in
violation of or liable under, any Environmental Law. Seller has no basis to expect, nor
has any other Person for whose conduct they are or may be held to be responsible
received, any actual or threatened order, notice or other communication from (i) any
Governmental Body or private citizen acting in the public interest or (ii) the current or
prior owner or operator of any Facilities, of any actual or potential violation or
failure to comply with any Environmental Law, or of any actual or threatened obligation
to undertake or bear the cost of any Environmental, Health and Safety Liabilities with
respect to the Gold Bar Assets, including the construction, installation, operation,
maintenance, repair, modification, closure or storage of the Gold Bar Assets, or any
Facility on which the Gold Bar Assets are or were located. |
|
3.6.2 |
There
are no pending or, to the Knowledge of Seller, threatened claims, Encumbrances, or other
restrictions of any nature resulting from any Environmental, Health and Safety
Liabilities or arising under or pursuant to any Environmental Law with respect to or
affecting any of the Gold Bar Assets or any Facility on which the Gold Bar Assets are or
were located. |
|
3.6.3 |
Seller
has no Knowledge of or any basis to expect, nor has any of them, or any other Person for
whose conduct they are or may be held responsible, received, any citation, directive,
inquiry, notice, Order, summons, warning or other communication that relates to Hazardous
Activity, Hazardous Materials, or any alleged, actual, or potential violation or failure
to comply with any Environmental Law, or of any alleged, actual, or potential obligation
to undertake or bear the cost of any Environmental, Health and Safety Liabilities with
respect to any of the Gold Bar Assets or the Facilities on which the Gold Bar Assets are
or were located. |
|
3.6.4 |
Neither
Seller nor any other Person for whose conduct it is or may be held responsible has any
Environmental, Health and Safety Liabilities with respect to any of the Gold Bar Assets
or the Facilities on which the Gold Bar Assets are or were located or, to the knowledge
of Seller, at any property geologically or hydrologically adjoining any Facility on which
the Gold Bar Assets are located. |
|
3.6.5 |
There
are no Hazardous Materials present on or in the Environment at any Facility on which the
Gold Bar Assets are located or at any geologically or hydrologically adjoining property,
including any Hazardous Materials contained in barrels, aboveground or underground
storage tanks, landfills, land deposits, dumps, equipment (whether movable or fixed) or
other containers, either temporary or permanent, and deposited or located in land, water,
sumps, or any other part of such Facility or adjoining property, or incorporated into any
structure therein or thereon. Neither Seller nor any Person for whose conduct it is or
may be held responsible, or to the Knowledge of Seller, any other Person, has permitted
or conducted, or is aware of, any Hazardous Activity conducted with respect to the Gold
Bar Assets or any Facility on which the Gold Bar Assets are or were located except in
full compliance with all applicable Environmental Laws. |
|
3.6.6 |
There
has been no Release or, to the Knowledge of Seller, Threat of Release, of any Hazardous
Materials from, onto or within any of the Gold Bar Assets. |
|
3.6.7 |
Seller
has removed from the Gold Bar Assets all Hazardous Materials that were used, generated,
processed, recycled, treated, stored or disposed of in or on the Gold Bar Assets,
including residues of any such Hazardous Materials. |
|
3.6.8 |
Seller
has delivered to Buyer true and complete copies and results of any reports, studies,
analyses, tests, or monitoring possessed or initiated by Seller pertaining to the use,
generation, process, recyling, treatment, storage or disposal of Hazardous Materials in
or on Gold Bar Assets, or concerning compliance, by Seller or any other Person for whose
conduct it is or may be held responsible, with Environmental Laws, including laws
relating to the closure, temporary closure or abandonment of the Gold Bar Assets. |
|
3.7 |
Brokers
or Finders. Neither Seller nor any of its Representatives have incurred
any obligation or liability, contingent or otherwise, for brokerage or finders’ fees
or agents’ commissions or other similar payments in connection with the sale of
Seller’s business or the Assets or the Contemplated Transactions.
|
|
3.8.1 |
Seller
is not now insolvent and will not be rendered insolvent by any of the Contemplated
Transactions. As used in this section, “insolvent” means that the sum of the
debts and other probable Liabilities of Seller exceeds the present fair saleable value of
Seller’s assets. |
|
3.8.2 |
Immediately
after giving effect to the completion of the Contemplated Transactions: (i) Seller will
be able to pay its Liabilities as they become due in the usual course of its business;
(ii) Seller will not have unreasonably small capital with which to conduct its present or
proposed business; (iii) Seller will have assets (calculated at fair market value) that
exceed its Liabilities; and (iv) taking into account all pending and threatened
litigation, final judgments against Seller in actions for money damages are not
reasonably anticipated to be rendered at a time when, or in amounts such that, Seller
will be unable to satisfy any such judgments promptly in accordance with their terms
(taking into account the maximum probable amount of such judgments in any such actions
and the earliest reasonable time at which such judgments might be rendered) as well as
all other obligations of Seller. The cash available to Seller, after taking into account
all other anticipated uses of the cash, will be sufficient to pay all such debts and
judgments promptly in accordance with their terms. |
|
3.9 |
Investment
Representations. |
|
3.9.1 |
Investment
Purpose. The Seller is acquiring the shares of restricted common stock to
be issued by the Buyer as the consideration for the Contemplated Transactions for its own
account and not with a present view toward the public sale or distribution thereof. |
|
3.9.2 |
Accredited
Investor Status. The Seller is an “accredited investor” as
defined in Section 2(a)(15) of the Securities Act and Rule 215 promulgated
under the Securities Act. The Seller hereby represents that, either by reason of Seller’s
business, or the financial and other advisors to Seller, if any, Seller has the capacity
to protect Seller’s own interests in connection with the transaction contemplated
hereby. |
|
3.9.3 |
Reliance
on Exemptions. Seller understands that the shares of restricted common
stock being issued as the consideration for the Contemplated Transactions are being
offered and sold to it in reliance upon specific exemptions from the registration
requirements of United States federal and state securities laws and that the Buyer is
relying upon the truth and accuracy of, and Seller’s compliance with, the
representations, warranties, agreements, acknowledgments and understandings of Seller set
forth herein in order to determine the availability of such exemptions and the
eligibility of Seller to acquire the shares of restricted common stock. |
|
3.9.4 |
Information.
Seller and its advisors have either had access through the Electronic Data Gathering,
Analysis, and Retrieval System (“XXXXX”) or have been furnished with all
materials relating to the business, finances and operations of Buyer, that have been
requested by Seller or its advisors, if any, including, without limitation the Buyer’s
Current Reports on Form 8-K dated May 6, 2004 (filed May 13, 2004), April 16, 2004 (filed
April 23, 2004), April 13, 2004 (filed April 15, 2004), 2004, March 11, 2004 (filed
(March 22, 2004), February 24, 2004 (filed February 26, 2004, as amended February 26,
2004 and March 1, 2004), January 15, 2004 (filed February 25, 2004), January 15, 2004
(filed January 20, 2004), and January 5, 2004 (filed January 6, 2004) (the “8-Ks”),
Buyer’s Quarterly Report on Form 10-QSB for the Quarter ended March 31, 2004 (the
“10-Qs”), and Buyer’s Annual Report on Form 10-KSB for the year ended
December 31, 2003 (the “10-K” and collectively with the 8-Ks, and the 10Qs, the
“SEC Documents”). Seller and its advisors, if any, have been afforded the
opportunity to ask questions of the Buyer. |
|
3.9.5 |
Acknowledgement
of Risk. Seller acknowledges and understands that its acquisition of the
shares of the restricted common stock involves a significant degree of risk, including,
without limitation, |
|
(i) |
The
Buyer remains a business with historical working capital shortages, limited cash flow,
operations that have not generated a profit, and requires substantial funds to pursue its
contemplated business plans; |
|
(ii) |
The
Buyer’s principal source of cash flow has recently been adversely
impacted because the Buyer was obligated to cease production from its
Cangalli property as a result of labor issues and other causes in Bolivia; |
|
(iii) |
an
investment in the Buyer is highly speculative, and only investors who can
afford the loss of their entire investment should consider investing in
the Buyer or the acceptance of the shares of restricted common stock from
the Buyer; |
|
(iv) |
Seller
may not be able to liquidate its investment; |
|
(v) |
transferability
of the shares of restricted common stock is extremely limited; |
|
(vi) |
The
Buyer has not paid any dividends on its common stock since inception and
does not anticipate the payment of dividends in the foreseeable future;
and |
|
(vii) |
In
the SEC Documents, the Buyer has set forth a number of other risk factors
that the Seller should consider prior to agreeing to accept any shares of
the Buyer’s common stock. |
|
3.9.6 |
Governmental
Review. Seller understands that no United States federal or state agency
or any other government or governmental agency has passed upon or made any recommendation
or endorsement of the restricted common stock or an investment therein. |
|
3.9.7 |
Transfer
Restrictions. Seller understands that the shares of the restricted common
stock have not been registered under the Securities Act or any applicable state
securities laws, and consequently, Seller may have to bear the risk of owning such
securities for an indefinite period of time because such securities may not be
transferred unless there is a currently effective registration statement or an exemption
from registration is available, which exemption must be established to the reasonable
satisfaction of the Buyer. |
|
3.9.8 |
Legends.
The Seller understands the certificates representing the shares of common stock and
promissory note will bear a restrictive legend in substantially the following form (and a
stop-transfer order may be placed against transfer of the certificates for such
securities): |
|
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE
SECURITIES MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS, OR UNLESS
OFFERED, SOLD OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THOSE LAWS. |
|
3.9.9 |
Residency. The
Seller is a resident of the State of Nevada. |
|
3.10 |
Tax
and Securities Reporting Issues. The Seller has consulted with his legal,
financial, investment, and Tax advisors and is fully aware that: |
|
3.10.1 |
The
transactions contemplated herein will be a taxable transaction based on the value of the
Purchase Price received by the Seller, and the Seller will include appropriate treatment
in the Seller’s Tax returns; |
|
3.10.2 |
As
a result of receiving the Purchase Price from the Buyer, the Seller may become liable for
certain reporting obligations under Sections 13(d) and 16(a) of the Exchange Act, and the
Seller will file such reports within the time limits required by the Exchange Act. |
|
3.11.1 |
No
representation or warranty or other statement made by Seller in this Agreement, or
otherwise in connection with the Contemplated Transactions contains any untrue statement
or omits to state a material fact necessary to make any of them, in light of the
circumstances in which it was made, not misleading. |
|
3.11.2 |
Seller
does not have Knowledge of any fact that has specific application to Seller (other than
general economic or industry conditions) and that may materially adversely affect the
Assets that has not been set forth in this Agreement. |
4 |
Representations
and Warranties of Buyer. Buyer represents and warrants to Seller as follows: |
|
4.1 |
Organization
And Good Standing. Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the State of Colorado, with full corporate power
and authority to conduct its business as it is now conducted. |
|
4.2 |
Authority;
No Conflict. |
|
4.2.1 |
This
Agreement constitutes the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms. Upon the execution and delivery by Buyer of
each agreement to be executed or delivered by Buyer at Closing (collectively, the “Buyer’s
Closing Documents”), each of the Buyer’s Closing Documents will constitute the
legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance
with its respective terms. Buyer has the absolute and unrestricted right, power and
authority to execute and deliver this Agreement and the Buyer’s Closing Documents
and to perform its obligations under this Agreement and the Buyer’s Closing
Documents, and such action has been duly authorized by all necessary corporate action. |
|
4.2.2 |
Neither
the execution and delivery of this Agreement by Buyer nor the completion or performance
of any of the Contemplated Transactions by Buyer will give any Person the right to
prevent, delay or otherwise interfere with any of the Contemplated Transactions pursuant
to: |
|
(i) |
any
provision of Buyer’s Governing Documents; |
|
(ii) |
any
resolution adopted by the board of directors of Buyer; |
|
(iii) |
any
Legal Requirement or Order to which Buyer may be subject; or |
|
(iv) |
any
Contract to which Buyer is a party or by which Buyer may be bound. |
|
Buyer
is not and will not be required to obtain any Consent from any Person in connection with
the execution and delivery of this Agreement or the completion or performance of any of
the Contemplated Transactions. |
|
4.3 |
Certain
Proceedings. There is no pending Proceeding that has been commenced
against Buyer and that challenges, or may have the effect of preventing, delaying, making
illegal or otherwise interfering with, any of the Contemplated Transactions. To Buyer’s
Knowledge, no such Proceeding has been threatened. |
|
4.4 |
Brokers
Or Finders. Neither Buyer nor any of its Representatives have incurred any
obligation or liability, contingent or otherwise, for brokerage or finders’ fees or
agents’ commissions or other similar payment in connection with the Contemplated
Transactions. |
|
4.5 |
Validity
of the Shares . The shares of common stock to be issued to the Seller pursuant to
Section 2.2 hereof will be, when issued, legally and validly issued, fully-paid and
non-assessable. |
|
4.6 |
Accuracy
of Information Provided. The information that the Buyer has provided to
the Seller in the SEC Documents and otherwise is accurate and complete in all material
respects. |
5 |
Covenants
of Seller Prior to Closing. |
|
5.1 |
Access
And Investigation. Between the date of this Agreement and the Closing Date, and upon
reasonable advance notice received from Buyer, Seller shall |
|
5.1.1 |
afford
Buyer and its Representatives and prospective lenders and their Representatives
(collectively, “Buyer Group”) full and free access, during regular business
hours, to Seller’s personnel, Contracts, Governmental Authorizations, books and
Records and other documents and data, such rights of access to be exercised in a manner
that does not unreasonably interfere with the operations of Seller; |
|
5.1.2 |
furnish
Buyer Group with copies of all such Contracts, Governmental Authorizations, books and
Records and other existing documents and data as Buyer may reasonably request; |
|
5.1.3 |
furnish
Buyer Group with such additional financial, operating and other relevant data and
information as Buyer may reasonably request; and |
|
5.1.4 |
otherwise
cooperate and assist, to the extent reasonably requested by Buyer, with Buyer’s
investigation of the properties, assets and financial condition related to Seller. In
addition, Buyer shall have the right to have the Tangible Personal Property inspected by
Buyer Group, at Buyer’s sole cost and expense, for purposes of determining the
physical condition and legal characteristics of the Tangible Personal Property. In the
event subsurface or other destructive testing is recommended by the Buyer, Buyer shall be
permitted to have the same performed. |
|
5.2 |
Maintenance
of the Assets. Between the date of this Agreement and the Closing, Seller
shall continue the maintain the Assets in the same manner that the Seller maintained the
Assets prior to the date of this Agreement. The Buyer understands that the Assets are not
being used at the present time and will remain idle until such time as the Buyer moves
the Assets from the property of the Seller. |
|
5.3 |
Negative
Covenants. Except as otherwise expressly permitted herein, between the
date of this Agreement and the Closing Date, Seller shall not, without the prior written
Consent of Buyer, take any action (or fail to take any action) the result of which would
have a material adverse effect on any of the Assets. |
|
5.4 |
Required
Approvals. As promptly as practicable after the date of this Agreement,
Seller shall make all filings required by Legal Requirements to be made by it in order to
complete the Contemplated Transactions. Seller also shall cooperate with Buyer and its
Representatives with respect to all filings that Buyer elects to make or, pursuant to
Legal Requirements, shall be required to make in connection with the Contemplated
Transactions. Seller also shall cooperate with Buyer and its Representatives in obtaining
all Material Consents. |
|
5.5 |
Notification.
Between the date of this Agreement and the Closing, Seller shall promptly
notify Buyer in writing if any of them becomes aware of (a) any fact or condition that
causes or constitutes a Breach of any of Seller’s representations and warranties
made as of the date of this Agreement or (b) the occurrence after the date of this
Agreement of any fact or condition that would or be reasonably likely to (except as
expressly contemplated by this Agreement) cause or constitute a Breach of any such
representation or warranty had that representation or warranty been made as of the time
of the occurrence of, or Seller’s discovery of, such fact or condition. Should any
such fact or condition require any change to any representation or warrant of the Seller
herein, the Seller shall promptly deliver to the written notification of specifying such
change. Such delivery shall not affect any rights of Buyer under Section 9.2 and Article
11. During the same period, Seller also shall promptly notify Buyer of the occurrence of
any Breach of any covenant of Seller in this Article 5 or of the occurrence of any event
that may make the satisfaction of the conditions in Article 7 impossible or unlikely. |
|
5.6 |
No
Negotiation. Until such time as this Agreement shall be terminated
pursuant to Section 9.1, Seller shall not directly or indirectly solicit, initiate,
encourage or entertain any inquiries or proposals from, discuss or negotiate with,
provide any nonpublic information to or consider the merits of any inquiries or proposals
from any Person (other than Buyer) relating to any business combination transaction
involving Seller, the merger or consolidation of Seller or the sale of any of the Assets.
Seller shall notify Buyer of any such inquiry or proposal within 24 hours of receipt or
awareness of the same by Seller. |
|
5.7 |
Best
Efforts. Seller shall use its Best Efforts to cause the conditions in Article 7 and
Section 8.3 to be satisfied. |
6 |
Covenants
of Buyer Prior to Closing. |
|
6.1 |
Required
Approvals. As promptly as practicable after the date of this Agreement,
Buyer shall make, or cause to be made, all filings required by Legal Requirements to be
made by it to complete the Contemplated Transactions. Buyer also shall cooperate, and
cause its Related Persons to cooperate, with Seller (a) with respect to all filings
Seller shall be required by Legal Requirements to make and (b) in obtaining all Consents
identified in Schedule 7.3, provided, however, that Buyer shall not be required to
dispose of or make any change to its business, expend any material funds or incur any
other burden in order to comply with this Section 6.1. |
|
6.2 |
Best
Efforts. Buyer shall use its Best Efforts to cause the conditions in Article 8 and
Section 7.3 to be satisfied. |
7 |
Conditions
Precedent to Buyer’s Obligation to Close.Buyer’s obligation to
purchase the Assets and to take the other actions required to be taken by Buyer at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of the
following conditions (any of which may be waived by Buyer, in whole or in part): |
|
7.1 |
Accuracy
Of Representations. All of Seller’s representations and warranties in
this Agreement (considered collectively), and each of these representations and
warranties (considered individually), shall have been accurate in all material respects
as of the date of this Agreement, and shall be accurate in all material respects as of
the time of the Closing as if then made. |
|
7.2 |
Seller’s
Performance. All of the covenants and obligations that Seller are required
to perform or to comply with pursuant to this Agreement at or prior to the Closing
(considered collectively), and each of these covenants and obligations (considered
individually), shall have been duly performed and complied with in all material respects. |
|
7.3 |
Consents. Each
of the Consents identified in Schedule 7.3 (the “Material Consents”), if any
are required, shall have been obtained and shall be in full force and effect. |
|
7.4 |
Additional
Documents. Seller shall have caused the documents and instruments required
by Section 2.6.1 and the following documents to be delivered (or tendered subject only to
Closing) to Buyer together with such other documents as Buyer may reasonably request for
the purpose of: |
|
7.4.1 |
evidencing
the accuracy of any of Seller's representations and warranties; |
|
7.4.2 |
evidencing
the performance by Seller of, or the compliance by Seller with, any covenant or
obligation required to be performed or complied with by Seller; |
|
7.4.3 |
evidencing
the satisfaction of any condition referred to in this Article 7; or |
|
7.4.4 |
otherwise
facilitating the completion or performance of any of the Contemplated Transactions. |
|
7.5 |
No
Proceedings. Since the date of this Agreement, there shall not have been
commenced or threatened against Buyer, or against any Related Person of Buyer, any
Proceeding (a) involving any challenge to, or seeking Damages or other relief in
connection with, any of the Contemplated Transactions or (b) that may have the effect of
preventing, delaying, making illegal, imposing limitations or conditions on or otherwise
interfering with any of the Contemplated Transactions. |
|
7.6 |
No
Conflict. Neither the completion nor the performance of any of the
Contemplated Transactions will, directly or indirectly (with or without notice or lapse
of time), contravene or conflict with or result in a violation of or cause Buyer or any
Related Person of Buyer to suffer any adverse consequence under (a) any applicable Legal
Requirement or Order or (b) any Legal Requirement or Order that has been published,
introduced or otherwise proposed by or before any Governmental Body, excluding bulk sales
laws. |
|
7.7 |
Governmental
Authorizations. Buyer shall have received such Governmental Authorizations
as are necessary or desirable to allow Buyer to remove the Assets from the current
location on property owned by the Seller and export the Assets to Bolivia after the
Closing. |
|
7.8 |
Buyer’s
Financing. The Buyer does not currently have sufficient financing, but
will raise such financing, to permit it to remove the Assets, and to move the Assets to
its Buen Futuro prospect in the country of Bolivia. |
8 |
Conditions
Precedent to Seller’s Obligation to Close.Seller’s obligation to
sell the Assets and to take the other actions required to be taken by Seller at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of the
following conditions (any of which may be waived by Seller in whole or in part): |
|
8.1 |
Accuracy
Of Representations. All of Buyer’s representations and warranties in
this Agreement (considered collectively), and each of these representations and
warranties (considered individually), shall have been accurate in all material respects
as of the date of this Agreement and shall be accurate in all material respects as of the
time of the Closing as if then made. |
|
8.2 |
Buyer’s
Performance. All of the covenants and obligations that Buyer is required
to perform or to comply with pursuant to this Agreement at or prior to the Closing
(considered collectively), and each of these covenants and obligations (considered
individually), shall have been performed and complied with in all material respects. |
|
8.3 |
Consents. Each
of the Consents identified in Schedule 7.3, if any are required, shall have been obtained
and shall be in full force and effect. |
|
8.4 |
Additional
Documents. Buyer shall have caused the documents and instruments required
by Section 2.6.2 and the following documents to be delivered (or tendered subject only to
Closing) to Seller together with such other documents as Seller may reasonably request
for the purpose of: |
|
8.4.1 |
evidencing
the accuracy of any representation or warranty of Buyer, |
|
8.4.2 |
evidencing
the performance by Buyer of, or the compliance by Buyer with, any covenant or obligation
required to be performed or complied with by Buyer or |
|
8.4.3 |
evidencing
the satisfaction of any condition referred to in this Article 8. |
|
8.5 |
No
Injunction. There shall not be in effect any Legal Requirement or any
injunction or other Order that (a) prohibits the consummation of the Contemplated
Transactions and (b) has been adopted or issued, or has otherwise become effective, since
the date of this Agreement. |
|
9.1 |
Termination
Events. By notice given prior to or at the Closing, subject to Section 9.2, this
Agreement may be terminated as follows: |
|
9.1.1 |
by
Buyer if a material Breach of any provision of this Agreement has been committed by
Seller and such Breach has not been waived by Buyer; |
|
9.1.2 |
by
Seller if a material Breach of any provision of this Agreement has been committed by
Buyer and such Breach has not been waived by Seller; |
|
9.1.3 |
by
Buyer if any condition in Article 7 has not been satisfied as of the date specified for
Closing in the first sentence of Section 2.6 or if satisfaction of such a condition by
such date is or becomes impossible (other than through the failure of Buyer to comply
with its obligations under this Agreement), and Buyer has not waived such condition on or
before such date; |
|
9.1.4 |
by
Seller if any condition in Article 8 has not been satisfied as of the date specified for
Closing in the first sentence of Section 2.6 or if satisfaction of such a condition by
such date is or becomes impossible (other than through the failure of Seller to comply
with its obligations under this Agreement), and Seller has not waived such condition on
or before such date; |
|
9.1.5 |
by
mutual consent of Buyer and Seller; |
|
9.1.6 |
by
Buyer if the Closing has not occurred on or before June 24, 2004, or such later date as
the parties may agree upon, unless the Buyer is in material Breach of this Agreement; or |
|
9.1.7 |
by
Seller if the Closing has not occurred on or before June 24, 2004, or such later date as
the parties may agree upon, unless the Seller is in material Breach of this Agreement. |
|
9.2 |
Effect
Of Termination. |
|
9.2.1 |
Each
party’s right of termination under Section 9.1 is in addition to any other rights it
may have under this Agreement or otherwise, and the exercise of such right of termination
will not be an election of remedies. |
|
9.2.2 |
If
this Agreement is terminated pursuant to Section 9.1, all obligations of the parties
under this Agreement will terminate, except that the obligations of the parties in this
Section 9.2 and Articles 12 and 13 (except for those in Section 13.5) will survive,
provided, however, that, if this Agreement is terminated because of a Breach of this
Agreement by the non-terminating party or because one or more of the conditions to the
terminating party’s obligations under this Agreement is not satisfied as a result of
the party’s failure to comply with its obligations under this Agreement, the
terminating party’s right to pursue all legal remedies will survive such termination
unimpaired. |
|
10.1 |
Payment
Of All Taxes Resulting From Sale Of Assets. Each of the Seller and the
Buyer will be responsible for one-half of any sales or use Taxes generated as a result of
this contemplated transaction regardless of the Person on whom such Taxes are imposed by
Legal Requirements. However, the Seller shall be responsible for any corporate income
taxes, capital gains taxes resulting from the sale of the shares received as a result of
this Agreement, or other taxes relating to the receipt and sale of Golden Eagle’s
shares. |
|
10.2 |
Payment
Of Other Liabilities. In addition to payment of Taxes pursuant to Section
10.1, Seller shall pay, or make adequate provision for the payment, in full all of the
Liabilities related to, deriving from, or attributable to the Assets, or any of them. If
any such Liabilities are not so paid or provided for, or if Buyer reasonably determines
that failure to make any payments will impair Buyer’s use or enjoyment of the
Assets, Buyer may, at any time after the Closing Date, elect to make all such payments
directly (but shall have no obligation to do so) and recover the same together with
interest at 1.5% per month from the Seller. |
|
10.3 |
Removing
the Assets. Not later than twelve months after the Closing Date, the Buyer
shall remove all Assets from all Facilities and other real property owned by the Seller.
Such removal shall be done in a reasonable manner with the understanding and acknowledge
that the Seller will be responsible for any reclamation or rehabilitation of the
Facilities and other real property following such removal of the Assets. Should the Buyer
fail to remove the Assets as required by this Section, the Seller shall have the right,
but not the obligation, to terminate this Agreement and to return the Purchase Price to
the Buyer, or to permit the Buyer to continue to store the Assets as they were being
stored at the Closing Date. Thereafter, the Seller may give the Buyer not less than six
months notice of the date by which the Buyer must remove the Assets from the Seller’s
Facilities. During the period that the Assets remain on or within the Seller’s
Facilities, the Seller will continue to provide the Buyer and its Representatives, with
access to the Assets at any time, with or without notice to Seller from Buyer. |
|
10.4 |
Assistance
In Proceedings. Seller will cooperate with Buyer and its counsel in the
contest or defense of, and make available its personnel and provide any testimony and
access to its books and Records in connection with, any Proceeding involving or relating
to (a) any Contemplated Transaction or (b) any action, activity, circumstance, condition,
conduct, event, fact, failure to act, incident, occurrence, plan, practice, situation,
status or transaction on or before the Closing Date involving Seller or the Assets. |
|
10.5 |
Retention
Of And Access To Records. After the Closing Date, Buyer shall retain for a
period consistent with Buyer’s record-retention policies and practices those Records
of Seller delivered to Buyer. Buyer also shall provide Seller and its Representatives
reasonable access thereto, during normal business hours and on at least three days’ prior
written notice, to enable them to prepare financial statements or tax returns or deal
with tax audits. After the Closing Date, Seller shall provide Buyer and its
Representatives reasonable access to Records that are Excluded Assets, during normal
business hours and on at least three days’ prior written notice, for any reasonable
business purpose specified by Buyer in such notice. |
|
10.6 |
Further
Assurances. Subject to the proviso in Section 6.1, the parties shall
cooperate reasonably with each other and with their respective Representatives in
connection with any steps required to be taken as part of their respective obligations
under this Agreement, and shall (a) furnish upon request to each other such further
information; (b) execute and deliver to each other such other documents; and (c) do such
other acts and things, all as the other party may reasonably request for the purpose of
carrying out the intent of this Agreement and the Contemplated Transactions. |
11 |
Indemnification;
Remedies |
|
11.1 |
Survival. All
representations, warranties, covenants and obligations in this Agreement, the
certificates delivered pursuant to Section 2.7 and any other certificate or document
delivered pursuant to this Agreement shall survive the Closing and the completion of the
Contemplated Transactions, subject to Section 11.7. The right to indemnification,
reimbursement or other remedy based upon such representations, warranties, covenants and
obligations shall not be affected by any investigation (including any environmental
investigation or assessment) conducted with respect to, or any Knowledge acquired (or
capable of being acquired) at any time, whether before or after the execution and
delivery of this Agreement or the Closing Date, with respect to the accuracy or
inaccuracy of or compliance with any such representation, warranty, covenant or
obligation. The waiver of any condition based upon the accuracy of any representation or
warranty, or on the performance of or compliance with any covenant or obligation, will
not affect the right to indemnification, reimbursement or other remedy based upon such
representations, warranties, covenants and obligations. |
|
11.2 |
Indemnification
And Reimbursement By Seller. Seller will indemnify and hold harmless
Buyer, and its Representatives, shareholder, subsidiaries and Related Persons
(collectively, the “Buyer Indemnified Persons”), and will reimburse the Buyer
Indemnified Persons for any loss, liability, claim, damage, expense (including costs of
investigation and defense and reasonable attorneys’ fees and expenses) or diminution
of value, whether or not involving a Third-Party Claim (collectively, “Damages”),
arising from or in connection with: |
|
11.2.1 |
Any
Breach of any representation or warranty made by Seller in (i) this Agreement (ii) the
certificates delivered pursuant to Section 2.7 (for this purpose, each such certificate
will be deemed to have stated that Seller’s representations and warranties in this
Agreement fulfill the requirements of Section 7.1 as of the Closing Date as if made on
the Closing Date without giving effect to any supplement to the Disclosure Letter, unless
the certificate expressly states that the matters disclosed in a supplement have caused a
condition specified in Section 7.1 not to be satisfied), (iii) any transfer instrument or
(iv) any other certificate, document, writing or instrument delivered by Seller pursuant
to this Agreement; |
|
11.2.2 |
Any
Breach of any covenant or obligation of Seller in this Agreement or in any other
certificate, document, writing or instrument delivered by Seller pursuant to this
Agreement; |
|
11.2.3 |
Any
Liability arising out of the ownership or operation of the Assets prior to the Effective
Time other than the Assumed Liabilities; |
|
11.2.4 |
Any
brokerage or finder’s fees or commissions or similar payments based upon any
agreement or understanding made, or alleged to have been made, by any Person with Seller
(or any Person acting on its behalf) in connection with any of the Contemplated
Transactions; |
|
11.2.5 |
Any
product or component thereof manufactured by or shipped, or any services provided by,
Seller, in whole or in part, prior to the Closing Date; |
|
11.2.6 |
Any
noncompliance with any bulk sales laws or fraudulent transfer law in respect of the
Contemplated Transactions; |
|
11.2.7 |
Any
liability under the WARN Act or any similar state or local Legal Requirement that may
result from an “Employment Loss,” as defined by 29 U.S.C. §2101(a)(6),
caused by any action of Seller prior to the Closing or by Buyer’s decision not to
hire previous employees of Seller; |
|
11.2.8 |
Any
employee benefit plan established or maintained by Seller; or |
|
11.2.9 |
Any
Liabilities related to or deriving from the Assets, or any of them. |
|
11.3 |
Indemnification
And Reimbursement By Seller — Environmental Matters. In addition to
the other indemnification provisions in this Article 11, Seller will indemnify and hold
harmless Buyer and the other Buyer Indemnified Persons, and will reimburse Buyer and the
other Buyer Indemnified Persons, for any Damages (including costs of cleanup, containment
or other remediation) arising from or in connection with: |
|
11.3.1 |
Any
Environmental, Health and Safety Liabilities arising out of or relating to: (i) the
ownership or operation by any Person at any time on or prior to the Closing Date of any
of the Gold Bar Assets or the Facilities on which they are or were located, (ii) any
Hazardous Materials or other contaminants including residues, that were present on the
Gold Bar Assets or Facilities on which they are or were located at any time on or prior
to the Date or Removal; or |
|
11.3.2 |
Any
bodily injury (including illness, disability and death, regardless of when any such
bodily injury occurred, was incurred or manifested itself), personal injury, property
damage (including trespass, nuisance, wrongful eviction and deprivation of the use of
real property) or other damage of or to any Person or any Assets in any way arising from
or allegedly arising from any Hazardous Materials in or on the Gold Bar Assets before or
on the Date or Removal. |
|
11.3.3 |
Buyer
will be entitled to control any Remedial Action, any Proceeding relating to an
Environmental Claim and, except as provided in the following sentence, any other
Proceeding with respect to which indemnity may be sought under this Section 11.3. The
procedure described in Section 11.9 will apply to any claim solely for monetary damages
relating to a matter covered by this Section 11.3. |
|
11.4 |
Indemnification
And Reimbursement By Buyer. Buyer will indemnify and hold harmless Seller,
and will reimburse Seller, for any Damages arising from or in connection with: |
|
11.4.1 |
Any
Breach of any representation or warranty made by Buyer in this Agreement or in any
certificate, document, writing or instrument delivered by Buyer pursuant to this
Agreement; |
|
11.4.2 |
Any
Breach of any covenant or obligation of Buyer in this Agreement or in any other
certificate, document, writing or instrument delivered by Buyer pursuant to this
Agreement; |
|
11.4.3 |
Any
claim by any Person for brokerage or finder’s fees or commissions or similar
payments based upon any agreement or understanding alleged to have been made by such
Person with Buyer (or any Person acting on Buyer’s behalf) in connection with any of
the Contemplated Transactions; or |
|
11.4.4 |
Any
obligations of Buyer with respect to bargaining with the collective bargaining
representatives of Active Hired Employees subsequent to the Closing. |
|
11.5 |
Limitations
On Amount — Seller. Seller shall have no liability (for
indemnification or otherwise) with respect to claims made by Buyer against Seller under
this Agreement until the total of all Damages with respect to such matters exceeds
$25,000 and then only for the amount by which such Damages exceed $25,000. |
|
11.6 |
Limitations
On Amount—Buyer. Buyer will have no liability (for indemnification or
otherwise) with respect to claims made by Seller against Buyer under this Agreement until
the total of all Damages with respect to such matters exceeds $25,000 and then only for
the amount by which such Damages exceed $25,000. |
|
11.7.1 |
Promptly
after receipt by a Person entitled to indemnity under Section 11.2, 11.3 (to the extent
provided in the last sentence of Section 11.3) or 11.4 (an “Indemnified Person”)
of notice of the assertion of a Third-Party Claim against it, such Indemnified Person
shall give notice to the Person obligated to indemnify under such Section (an “Indemnifying
Person”) of the assertion of such Third-Party Claim, provided that the failure to
notify the Indemnifying Person will not relieve the Indemnifying Person of any liability
that it may have to any Indemnified Person, except to the extent that the Indemnifying
Person demonstrates that the defense of such Third-Party Claim is prejudiced by the
Indemnified Person’s failure to give such notice. |
|
11.7.2 |
If
an Indemnified Person gives notice to the Indemnifying Person pursuant to Section 11.8.1
of the assertion of a Third-Party Claim, the Indemnifying Person shall be entitled to
participate in the defense of such Third-Party Claim and, to the extent that it wishes
(unless (i) the Indemnifying Person is also a Person against whom the Third-Party Claim
is made and the Indemnified Person determines in good faith that joint representation
would be inappropriate or (ii) the Indemnifying Person fails to provide reasonable
assurance to the Indemnified Person of its financial capacity to defend such Third-Party
Claim and provide indemnification with respect to such Third-Party Claim), to assume the
defense of such Third-Party Claim with counsel satisfactory to the Indemnified Person.
After notice from the Indemnifying Person to the Indemnified Person of its election to
assume the defense of such Third-Party Claim, the Indemnifying Person shall not, so long
as it diligently conducts such defense, be liable to the Indemnified Person under this
Article 11 for any fees of other counsel or any other expenses with respect to the
defense of such Third-Party Claim, in each case subsequently incurred by the Indemnified
Person in connection with the defense of such Third-Party Claim, other than reasonable
costs of investigation. If the Indemnifying Person assumes the defense of a Third-Party
Claim, (I) such assumption will conclusively establish for purposes of this Agreement
that the claims made in that Third-Party Claim are within the scope of and subject to
indemnification, and (II) no compromise or settlement of such Third-Party Claims may be
effected by the Indemnifying Person without the Indemnified Person’s Consent unless
(A) there is no finding or admission of any violation of Legal Requirement or any
violation of the rights of any Person; (B) the sole relief provided is monetary damages
that are paid in full by the Indemnifying Person; and (C) the Indemnified Person shall
have no liability with respect to any compromise or settlement of such Third-Party Claims
effected without its Consent. If notice is given to an Indemnifying Person of the
assertion of any Third-Party Claim and the Indemnifying Person does not, within ten days
after the Indemnified Person’s notice is given, give notice to the Indemnified
Person of its election to assume the defense of such Third-Party Claim, the Indemnifying
Person will be bound by any determination made in such Third-Party Claim or any
compromise or settlement effected by the Indemnified Person. |
|
11.7.3 |
Notwithstanding
the foregoing, if an Indemnified Person determines in good faith that there is a
reasonable probability that a Third-Party Claim may adversely affect it or its Related
Persons other than as a result of monetary damages for which it would be entitled to
indemnification under this Agreement, the Indemnified Person may, by notice to the
Indemnifying Person, assume the exclusive right to defend, compromise or settle such
Third-Party Claim, but the Indemnifying Person will not be bound by any determination of
any Third-Party Claim so defended for the purposes of this Agreement or any compromise or
settlement effected without its Consent (which may not be unreasonably withheld). |
|
11.7.4 |
Notwithstanding
the provisions of Section 13.4, Seller hereby consents to the nonexclusive jurisdiction
of any court in which a Proceeding in respect of a Third-Party Claim is brought against
any Buyer Indemnified Person for purposes of any claim that a Buyer Indemnified Person
may have under this Agreement with respect to such Proceeding or the matters alleged
therein and agree that process may be served on Seller with respect to such a claim
anywhere in the world. |
|
11.7.5 |
With
respect to any Third-Party Claim subject to indemnification under this Article 11: (i)
both the Indemnified Person and the Indemnifying Person, as the case may be, shall keep
the other Person fully informed of the status of such Third-Party Claim and any related
Proceedings at all stages thereof where such Person is not represented by its own
counsel, and (ii) the parties agree (each at its own expense) to render to each other
such assistance as they may reasonably require of each other and to cooperate in good
faith with each other in order to ensure the proper and adequate defense of any
Third-Party Claim. |
|
11.7.6 |
With
respect to any Third-Party Claim subject to indemnification under this Article 11, the
parties agree to cooperate in such a manner as to preserve in full (to the extent
possible) the confidentiality of all Confidential Information and the attorney-client and
work-product privileges. In connection therewith, each party agrees that: (i) it will use
its Best Efforts, in respect of any Third-Party Claim in which it has assumed or
participated in the defense, to avoid production of Confidential Information (consistent
with applicable law and rules of procedure), and (ii) all communications between any
party hereto and counsel responsible for or participating in the defense of any
Third-Party Claim shall, to the extent possible, be made so as to preserve any applicable
attorney-client or work-product privilege. |
|
11.8 |
Other
Claims. A claim for indemnification for any matter not involving a
Third-Party Claim may be asserted by notice to the party from whom indemnification is
sought and shall be paid promptly after such notice. |
|
11.9 |
Indemnification
In Case Of Strict Liability Or Indemnitee Negligence THE INDEMNIFICATION
PROVISIONS IN THIS ARTICLE 11 SHALL BE ENFORCEABLE REGARDLESS OF WHETHER THE LIABILITY IS
BASED UPON PAST, PRESENT OR FUTURE ACTS, CLAIMS OR LEGAL REQUIREMENTS (INCLUDING ANY
PAST, PRESENT OR FUTURE BULK SALES LAW, ENVIRONMENTAL LAW, FRAUDULENT TRANSFER ACT,
OCCUPATIONAL SAFETY AND HEALTH LAW OR PRODUCTS LIABILITY, SECURITIES OR OTHER LEGAL
REQUIREMENT) AND REGARDLESS OF WHETHER ANY PERSON (INCLUDING THE PERSON FROM WHOM
INDEMNIFICATION IS SOUGHT) ALLEGES OR PROVES THE SOLE, CONCURRENT, CONTRIBUTORY OR
COMPARATIVE NEGLIGENCE OF THE PERSON SEEKING INDEMNIFICATION OR THE SOLE OR CONCURRENT
STRICT LIABILITY IMPOSED UPON THE PERSON SEEKING INDEMNIFICATION. |
|
11.10 |
In
the Event of Insolvency or Bankruptcy of Buyer Within Two (2) Years from Effective Date
of Sale/Purchase. |
|
Should
Buyer become insolvent within the first two (2) years from the effective date of this
Sale/Purchase, rendering Buyer’s shares valueless or of negligible value, or should
Buyer file bankruptcy within the first two (2) years from the effective date of this
Sale/Purchase, then Seller shall be entitled to the return of the title and physical
possession, where is and as is, of the Gold Bar Assets sold pursuant to this Agreement if
Seller still retains at least fifty percent (50%) of the shares paid pursuant to this
Agreement by Buyer. Return of title to Seller, and authorization of access to physical
possession of the Gold Bar Assets sold pursuant to this Agreement by Buyer , shall be
accomplished within ten (10) days of notice being given by Seller to Buyer that the
conditions of this paragraph regarding insolvency or bankruptcy have been met. Buyer shall
not be required to physically move the Gold Bar Assets from the place in which they are
found to accomplish delivery of title and access to physical possession. Seller may retain
the proceeds from the sale of up to fifty percent (50%) of the shares paid by Buyer as
liquidated damages, but shall return the balance of the shares to Buyer upon exercising
Seller’s rights pursuant to this paragraph. |
|
12.1 |
Expenses.
Except as otherwise provided in this Agreement, each party to this
Agreement will bear its respective fees and expenses incurred in connection with the
preparation, negotiation, execution and performance of this Agreement and the
Contemplated Transactions, including all fees and expense of its Representatives. If this
Agreement is terminated, the obligation of each party to pay its own fees and expenses
will be subject to any rights of such party arising from a Breach of this Agreement by
another party. |
|
12.2 |
Confidentiality. Each
party will maintain the confidentiality of all non-public information obtained from the
other party, and neither party will make any commercial or business use of the non-public
information of the other party, without the prior written consent of the other party. All
trade secrets shall be respected and maintained secret. |
|
12.3 |
Public
Announcements. Any public announcement, press release or similar publicity
with respect to this Agreement or the Contemplated Transactions will be issued, if at
all, at such time and in such manner as Buyer determines provided the Buyer gives the
Seller at least one business days’ prior notice before the issuance of any press
release or similar publicity. |
|
12.4 |
Notices.
All notices, Consents, waivers and other communications required or permitted by this
Agreement shall be in writing and shall be deemed given to a party when (a) delivered to
the appropriate address by hand or by nationally recognized overnight courier service
(costs prepaid); (b) sent by facsimile or e-mail with confirmation of transmission by the
transmitting equipment; or (c) received or rejected by the addressee, if sent by
certified mail, return receipt requested, in each case to the following addresses,
facsimile numbers or e-mail addresses and marked to the attention of the person (by name
or title) designated below (or to such other address, facsimile number, e-mail address or
person as a party may designate by notice to the other parties): |
|
Seller: |
|
H. Xxx Xxxxxx, CEO
Atlas Precious Metals, Inc.
8040 Xxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000 |
|
Buyer: |
|
Xxxxx X. Xxxxxx, President
Golden Eagle International, Inc.
12401 South 000 Xxxx
Xxxx. X0,
Xxxx Xxxx Xxxx, Xxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000 |
|
12.5 |
Jurisdiction;
Service Of Process. Any Proceeding arising out of or relating to this
Agreement or any Contemplated Transaction may be brought in the courts of the State of
Colorado, County of Denver, or, if it has or can acquire jurisdiction, in the United
States District Court for the District of Colorado, and each of the parties irrevocably
submits to the exclusive jurisdiction of each such court in any such Proceeding, waives
any objection it may now or hereafter have to venue or to convenience of forum, agrees
that all claims in respect of the Proceeding shall be heard and determined only in any
such court and agrees not to bring any Proceeding arising out of or relating to this
Agreement or any Contemplated Transaction in any other court. The parties agree that
either or both of them may file a copy of this paragraph with any court as written
evidence of the knowing, voluntary and bargained agreement between the parties
irrevocably to waive any objections to venue or to convenience of forum. Process in any
Proceeding referred to in the first sentence of this section may be served on any party
anywhere in the world. |
|
12.6 |
Waiver;
Remedies Cumulative. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither any failure nor any delay by any
party in exercising any right, power or privilege under this Agreement or any of the
documents referred to in this Agreement will operate as a waiver of such right, power or
privilege, and no single or partial exercise of any such right, power or privilege will
preclude any other or further exercise of such right, power or privilege or the exercise
of any other right, power or privilege. To the maximum extent permitted by applicable
law, (a) no claim or right arising out of this Agreement or any of the documents referred
to in this Agreement can be discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by the other party; (b) no
waiver that may be given by a party will be applicable except in the specific instance
for which it is given; and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of that party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this Agreement or
the documents referred to in this Agreement. |
|
12.7 |
Schedules. The
following schedules are hereby incorporated into this Agreement as though fully set
forth herein: |
|
12.7.1 |
–Schedule
2.1 – Assets12.7.2 Schedule 2.2 – Subscription Agreement12.7.3 Schedule 2.4
– Purchase Price allocation 12.7.4 Schedule 7.3 - Material Consents, if any are
required |
|
12.8 |
Entire
Agreement And Modification. This Agreement supersedes all prior
agreements, whether written or oral, between the parties with respect to its subject
matter (including any letter of intent and any confidentiality agreement between Buyer
and Seller) and constitutes a complete and exclusive statement of the terms of the
agreement between the parties with respect to its subject matter. This Agreement may not
be amended, supplemented, or otherwise modified except by a written agreement executed by
the party to be charged with the amendment. |
|
12.9 |
Assignments,
Successors And No Third-Party Rights. No party may assign any of its
rights or delegate any of its obligations under this Agreement without the prior written
consent of the other parties, except that Buyer may assign any of its rights and delegate
any of its obligations under this Agreement to any subsidiary of Buyer and may
collaterally assign its rights hereunder to any financial institution providing financing
in connection with the Contemplated Transactions. Subject to the preceding sentence, this
Agreement will apply to, be binding in all respects upon and inure to the benefit of the
successors and permitted assigns of the parties. Nothing expressed or referred to in this
Agreement will be construed to give any Person other than the parties to this Agreement
any legal or equitable right, remedy or claim under or with respect to this Agreement or
any provision of this Agreement, except such rights as shall inure to a successor or
permitted assignee pursuant to this Section 12.7. |
|
12.10 |
Severability. If
any provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain in full force
and effect. Any provision of this Agreement held invalid or unenforceable only in part or
degree will remain in full force and effect to the extent not held invalid or
unenforceable. |
|
12.11 |
Construction. The
headings of Articles and Sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation. |
|
12.12 |
Time
of the Essence. With regard to all dates and time periods set forth or
referred to in this Agreement, time is of the essence. |
|
12.13 |
Governing
Law. This Agreement will be governed by and construed under the laws of
the State of Colorado without regard to conflicts-of-laws principles that would require
the application of any other law. |
|
12.14 |
Execution
of Agreement. This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement. The
exchange of copies of this Agreement and of signature pages by facsimile transmission
shall constitute effective execution and delivery of this Agreement as to the parties and
may be used in lieu of the original Agreement for all purposes. Signatures of the parties
transmitted by facsimile shall be deemed to be their original signatures for all
purposes. |
|
IN WITNESS
WHEREOF, the parties have executed this Agreement as of the date first written above. |
|
|
GOLDEN EAGLE INTERNATIONAL, INC. ("Buyer") |
|
ATLAS PRECIOUS METALS, INC. ("Seller") |
By: Xxxxx X. Xxxxxx, President
| |
By: H. Xxx Xxxxxx, President |
Back to 10-Q