MERGER AGREEMENT
THIS "AGREEMENT", deemed to be made and entered into this ____ day of
______________, 2002, constitutes the full agreement between the parties with
respect to the merger between said parties that it is intended to memorialize;
to-wit:
PARTIES:
The parties hereto are as follows:
1. WESTERN TECHNOLOGY AND MANAGEMENT, INC., hereinafter referred to as
"Western", is a corporation organized and existing under the laws of
the State of Idaho, with principal offices located at 000 X. Xxxxxxxx,
Xxxxx 000, Xxxxx Xxxxx, Xxxxx 00000.
2. THE SHAREHOLDERS OF WESTERN, collectively owning of record and
beneficially 51,410,000 of the 100,000,000 issued and outstanding
shares of the capital stock of Western, whose individual names,
addresses, their share holdings in Western and the share holdings in
Iron Mask Mining Co. that they are to receive appear in Exhibit "A"
annexed to this Agreement, hereinafter referred to as the "Western
Shareholders."
3. IRON MASK MINING COMPANY, hereinafter referred to as "IMMC" is a
corporation organized and existing under the laws of the State of
Idaho, whose registered office is located at 000 Xxxxx Xx., Xxxxxxxx,
Xxxxx 00000, and whose mailing address for the purposes of this
Agreement is P. O. Xxx 000, Xxxxxxxx, Xxxxxxx 00000.
4. CERTAIN SHAREHOLDERS OF IMMC, collectively owning of record and
beneficially not less than 24,932,143 of the total of 53,962,208
issued and outstanding shares of the capital stock of IMMC, whose
individual names, addresses and share holdings appear in Exhibit "B"
annexed to this Agreement, hereinafter referred to as "IMMC
Participating Shareholders."
5. IRON MASK MINING MERGER TWO CORP., hereinafter referred to as "Merger
Sub" is a wholly-owned subsidiary of IMMC organized and existing under
the laws of the State of Idaho, whose registered office is located at
000 Xxxxx Xx., Xxxxxxxx, Xxxxx 00000, and whose mailing address for
the purposes of this Agreement is X.X. Xxx 000, Xxxxxxxx, Xxxxxxx
00000.
TERMS OF AGREEMENT:
1. Description of the Transaction.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, at the Effective Time (as defined in Section 1(c)), Merger
Sub shall be merged with and into Western (the "Merger"), and the
separate existence of Merger Sub shall cease. Western will continue as
the surviving corporation in the Merger (the "Surviving Corporation").
(b) The Merger shall have the effects set forth in this Agreement and in
the applicable provisions of the Idaho Business Corporation Act
("Idaho Law").
(c) The consummation of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Western Technology
And Management, Inc. on or before March 15, 2002, or at such other
time as the parties may agree (the "Scheduled Closing Time"). (The
date on which the Closing actually takes place is referred to in this
Agreement as the "Closing Date.") Contemporaneously with or as
promptly as practicable after the Closing, properly executed articles
of merger (the "Articles of Merger"), conforming to the requirements
of Idaho Law, shall be filed with the Secretary of State of the State
of Idaho. The Merger shall become effective at the time such Articles
of Merger are filed with and accepted by the Secretary of State of the
State of Idaho (the "Effective Time").
(1) The articles of incorporation of Western, as in effect
immediately prior to the Effective Time, shall be the articles of
incorporation of the Surviving Corporation until thereafter
amended.
(2) The bylaws of Western, as in effect immediately prior to the
Effective Time, shall be the bylaws of the Surviving Corporation
until thereafter amended.
(3) The directors and officers of the Surviving Corporation
immediately after the Effective Time shall be the individuals
identified on Exhibit A-1.
(d) The stock of Western shall be converted into stock of IMMC as follows:
(1) Subject to Sections 1(f)(3) and (g), at the Effective Time, by
virtue of the Merger and without any further action on the part
of the parties, each share of common stock of Western issued and
outstanding immediately prior to the Effective Time (the "Western
Shares") shall be converted into the right to receive 0.4086058
shares of common stock of IMMC (the "IMMC Stock"). The IMMC Stock
to be received by the Western Shareholders is set forth on
Exhibit A.
If, between the date of this Agreement and the Closing Date, the
Western Shares or the IMMC Stock are changed into a different number or
class of shares by reason of any stock dividend, subdivision,
reclassification, recapitalization, split-up, combination or similar
transaction, the IMMC Stock to be received by the Western Shareholders
shall be appropriately adjusted.
(2) If any Western Shares outstanding immediately prior to the
Effective Time are unvested or are subject to a repurchase
option, risk of forfeiture or other condition under any
applicable restricted stock purchase agreement or other agreement
with Western, then the shares of IMMC Stock issued in exchange
for such Western Shares will also be unvested and subject to the
same repurchase option, risk of forfeiture or other condition,
and the certificates representing such shares of IMMC Stock may
be accordingly marked with appropriate legends.
(e) At the Effective Time, holders of certificates representing Western
Shares that were outstanding immediately prior to the Effective Time
shall cease to have any rights as stockholders of Western, and the
stock transfer books of Western shall be closed with respect to all
Western Shares outstanding immediately prior to the Effective Time. No
further transfer of any Western Shares shall be made on such stock
transfer books after the Effective Time. If, after the Effective Time,
a valid certificate previously representing any of such capital stock
of Western (an "Western Stock Certificate") is presented to the
Surviving Corporation or IMMC, such Western Stock Certificate shall be
canceled and shall be exchanged as provided in Section 1(f).
(f) (1) At or as soon as practicable after the Effective Time, IMMC will
send to each holder of an Western Stock Certificate a letter of
transmittal and instructions for use in customary form and containing
such provisions as may reasonably be required for use in effecting the
surrender of such Western Stock Certificate for payment therefor and
conversion thereof. Upon surrender of an Western Stock Certificate to
IMMC for exchange, together with a duly executed letter of transmittal
and such other documents as may be reasonably required by IMMC, the
holder of such Western Stock Certificate shall be entitled to receive
in exchange therefor certificates representing the number of whole
shares of IMMC Stock that such holder has the right to receive
pursuant to the provisions of this Section 1 and the Western Stock
Certificate so surrendered shall be canceled. Until surrendered as
contemplated by this Section 1(f), each Western Stock Certificate
shall be deemed, from and after the Effective Time, to represent only
the right to receive upon such surrender a certificate representing
shares of IMMC Stock (and cash in lieu of any fractional share of IMMC
Stock) as contemplated by this Section 1. If any Western Stock
Certificate shall have been lost, stolen or destroyed, IMMC may, in
its discretion and as a condition precedent to the issuance of any
certificates representing IMMC Stock, require the owner of such lost,
stolen or destroyed Western Stock Certificate to provide an
appropriate affidavit and to deliver a bond (in such sum as IMMC may
reasonably direct) as indemnity.
(2) No dividends or other distributions declared or made with respect
to IMMC Stock with a record date after the Effective Time shall
be paid to the holder of any unsurrendered Western Stock
Certificate with respect to the shares of Western Stock
represented thereby, and no cash payment in lieu of any
fractional share shall be paid to any such holder, until such
holder surrenders such Western Stock Certificate in accordance
with this Section 1(f) (at which time such holder shall be
entitled to receive all such dividends and distributions and such
cash payment).
(3) No fractional shares of IMMC Stock shall be issued in connection
with the Merger. In lieu of such fractional shares, any holder of
capital stock of Western who would otherwise be entitled to
receive a fraction of a share of IMMC Stock shall, upon surrender
of such holder's Western Stock Certificate(s), be paid in cash
the dollar amount (rounded to the nearest whole cent), without
interest, determined by multiplying such fraction by the closing
price of one share of IMMC Stock as reported by the OTC Bulletin
Board reporting system on the Closing Date.
(4) IMMC and the Surviving Corporation shall be entitled to deduct
and withhold from any consideration payable or otherwise
deliverable to any holder or former holder of capital stock of
Western pursuant to this Agreement such amounts as IMMC or the
Surviving Corporation may be required to deduct or withhold
therefrom under the Internal Revenue Code or under any provision
of state, local or foreign tax law. To the extent such amounts
are so deducted or withheld, such amounts shall be treated for
all purposes under this Agreement as having been paid to the
person to whom such amounts would otherwise have been paid..
(g) Notwithstanding anything in this Agreement to the contrary, shares of
capital stock of Western that are issued and outstanding immediately
prior to the Effective Time and that are held by stockholders who have
not voted such shares in favor of the Merger and who have delivered a
written notice of their intent to demand payment for such shares in
the manner provided under Idaho Law ("Dissenting Shares") shall not be
canceled and converted in accordance with Section 1(d) unless and
until such holder shall have failed to perfect, or shall have
effectively withdrawn or lost, such holder's right to payment under
Idaho Law. If such holder shall have so failed to perfect, or shall
have effectively withdrawn or lost such right, such holder's capital
stock of Western shall thereupon be deemed to have been canceled and
converted as described in Section 1(d) at the Effective Time, and each
such share shall represent solely the right to receive the merger
consideration described in Section 1(d). From and after the Effective
Time, no stockholder of Western who has demanded appraisal rights as
provided under Idaho Law shall be entitled to vote such holder's
shares of IMMC Stock or Western Shares for any purpose or to receive
payment of dividends or other distributions with respect to such
holder's shares (except dividends and other distributions payable to
stockholders of record of Western at a date which is prior to the
Effective Time).
(h) For federal income tax purposes, the Merger is intended to constitute
a reorganization within the meaning of Section 368 of the Code. The
parties to this Agreement hereby adopt this Agreement as a "plan of
reorganization" within the meaning of Sections 1.368-2(g) and
1.368-3(a) of the United States Treasury Regulations.
(i) For accounting purposes, the Merger is intended to be treated as a
"purchase."
(j) If, at any time after the Effective Time, any further action is
determined by IMMC to be necessary or desirable to carry out the
purposes of this Agreement or to vest the Surviving Corporation or
IMMC with full right, title and possession of and to all rights and
property of Western, the officers and directors of the Surviving
Corporation and IMMC shall be fully authorized (in the name of Western
and otherwise) to take such action.
2. Execution Of Agreement Subject To Conditions Precedent To Closing. The
Parties hereto have executed this Agreement as their respective agreement
as to the terms and conditions of the transaction. The execution hereof is
expressly subject to the following conditions precedent, the performance of
all of which shall constitute the Closing, at which time IMMC shall deliver
by letter: (i) irrevocable instructions to Columbia Stock Transfer Company
to issue the allotted number of shares of IMMC stock to the Western
Shareholders upon the tender of appropriate stock certificates of the
Western Shareholders representing the shares they own in Western, and (ii)
the share certificates of the Western Shareholders which shall be tendered
thereby. The anticipated Closing Date has been agreed by the parties to be
March 15, 2002, but if the parties conclude that it cannot be successfully
closed by such date, they shall agree to an extension of Closing of no more
than twenty (20) additional days. Upon the timely completion of all
conditions precedent set forth herein, the parties shall execute a closing
certificate so stating and indicating that, all conditions precedent having
been met, the transaction is deemed successfully closed, and reaffirming
the representations and warranties made by such parties through the Closing
Date. The closing certificate shall be binding upon each company and those
shareholders of each company who are signatories to this agreement. The
conditions precedent to closing are as follows:
(a) Western and IMMC have completed their respective due diligence
investigations, the results of which have been reasonably satisfactory
to the respective parties;
(b) The approval of the transaction as described herein by the
shareholders of Western;
(c) The approval of the transaction as described herein by the Boards of
Directors of Western and IMMC;
(d) Delivery of all duly endorsed Western stock certificates held by the
Western Shareholders to counsel for IMMC, to be held in trust until
the Closing date;
(e) The completion, attachment and acceptance by Western and IMMC,
respectively, of Exhibits "C" through "I" hereto;
(f) The simultaneous closing of the transaction between IMMC and Intrepid
Engineering Services, Inc. by separate written agreement;
(g) The execution and delivery of a Share Voting Agreement regarding the
voting of certain shares of IMMC stock;
(h) Satisfaction of all applicable requirements of the Securities Act of
1933 and any applicable state securities laws;
(i) Delivery of legal opinions from counsel for IMMC and Western
reasonably satisfactory to the parties;
(j) Absence of any material adverse effect on IMMC or Western;
(k) No more than 3% of the Western Shares shall have been Dissenting
Shares.
Upon timely and acknowledged completion of the foregoing conditions
precedent, Columbia Stock Transfer Company, pursuant to instructions lodged
with it by IMMC shall issue to each Western Shareholder, one or more stock
certificate of IMMC representing, in the aggregate, the shares of IMMC to
which each such shareholder is entitled.
3. Acknowledgment of Restrictions on Shares Transferred to Western
Shareholders. The parties hereto acknowledge that the shares being issued
by IMMC to the Western Shareholders are subject to certain restrictions on
their public sale promulgated by the United States Securities and Exchange
Commission ("SEC")for a period of up to two years (or longer for
affiliates). The shares issued in the Merger will be issued under an
exemption from registration with the SEC and will be restricted shares as
that term is defined in the Act. Further, these shares cannot be sold or
transferred unless the conditions of Rule 144 of the Securities Act of
1933, as amended (the "Act") are complied with. This involves certain
limitations on the sale of the securities and certain reporting obligations
to be met. A valid opinion of the sellers counsel will have to be presented
to IMMC detailing compliance with the cited rules and an opinion that the
shares are free trading in order to provide for removal of the restrictive
legend. A legend will be affixed to each certificate as follows:
The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may not
be sold or otherwise transferred unless a compliance with the
registration provisions of such Act has been made or unless
availability of an exemption from such registration provisions has
been established, or unless sold pursuant to Rule 144 under the
Securities Act of 1933.
The shares are not being registered with the Idaho Department of Finance,
any Idaho corporate agency, or any agency of any other state, and are being
offered under an exemption from registration. For stock issuances subject to
Idaho law, IMMC is relying on an exemption under Idaho Code Section
30-1435(1)(n) of Title 30, Chapter 14 of the Securities Act. The following
notification shall apply:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE IDAHO SECURITIES
ACT AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
IDAHO SECURITIES ACT.
4. Expansion Of Board Of Directors Of IMMC And Appointments. All of the
parties hereto agree that it would be in the best interests of IMMC to
expand the number of its directors from four members to five members,
contemporaneously with the closing of the transaction. IMMC represents that
its board of directors has already so voted and has entered a resolution
that upon closing, the resignations of Xxxxxxx Xxxxx and Xxxxxx Xxxxx, both
as officers and directors, and the resignations of Xxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxxx as officers but not as directors, which resignations have
been tendered and are conditional upon the closing of this transaction,
shall be accepted with immediate effect and that Xxxxxx Xxxxxx, Bentley
Xxxx and Xxxxx Xxxxxx, who are individual parties to this Agreement, shall
be appointed to the Board of Directors of IMMC. Xxxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxxx shall continue as directors of IMMC.
5. Creation of IMMC Executive Management Committee. The parties hereto agree
that contemporaneously with Closing an Executive Management Committee of
IMMC, appointed by and answerable to the Board of Directors, shall be
created, the duties of which shall be to provide advice as to the executive
management of the various aspects of the business of IMMC. The initial
members of said Executive Management Committee shall be Xxxxxx Xxxxxx,
Bentley Xxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxx,
and Xxxxx Xxxxxxxx. It shall meet at least monthly at such places and such
times as are designated by the President of IMMC, and all costs of travel
and lodging shall be paid or reimbursed by IMMC. The committee shall be
fully informed as to all of the business of IMMC. All factual internal
memoranda generated with regard to any of the business of Iron Mask shall
be electronically transmitted without undue delay to all members of the
executive management committee.
6. No Prior Transfers by Western or IMMC. Western and IMMC covenant and agree
that they have not caused or allowed, since the signing of the letter of
intent between the parties on or about January 18, 2002, the transfer or
encumbrance of any of their assets nor the incurring of additional debt,
except in the ordinary course of Business or as disclosed in Exhibits "C"
and "D", respectively, which shall be attached hereto prior to the Closing
Time.
7. Full Disclosure Of All Corporate Assets And Liabilities Of The Parties. The
parties hereto covenant with each other, as a material element of the
bargain, that they have fully disclosed the precise nature and extent of
all of the corporate assets and liabilities of Western and IMMC, which are
attached hereto as Exhibits "E" and "F", which shall be attached hereto
prior to the Closing Time.
8. Disclosure of Existing Shareholdings of The Parties. The names and share
holdings of all of the current shareholders of Western have previously been
disclosed to IMMC. IMMC has previously disclosed to Western the number of
issued and outstanding shares of IMMC, but not the names of the current
shareholders, as IMMC is a public company whose shareholders change
virtually daily; IMMC further covenants that it has made Western aware of
any new issuance of shares by it since the signing of the letter of intent.
The names and shareholding of the IMMC Participating Shareholders are set
forth in Exhibit "B" hereof.
9. Representations and Warranties of IMMC And IMMC Participating Shareholders
as to IMMC. As a material inducement to enter into this Agreement and
complete the transaction contemplated by this Agreement and acknowledging
that Western and the Western Shareholders are entering into this Agreement
in reliance upon the representations and warranties of IMMC set out in this
Section 9, IMMC and the IMMC Participating Shareholders represent and
warrant to Western and the Western Shareholders as follows with regard to
IMMC:
a. Incorporation and Power. IMMC is a corporation incorporated and
validly existing under the laws of the State of Idaho. IMMC has sent
to the appropriate authorities all annual returns and financial
statements required to be sent under the laws of the jurisdiction of
its incorporation. IMMC has the corporate power and authority and is
qualified to own and dispose of its assets. No act or proceeding has
been taken by or against IMMC in connection with the dissolution,
liquidation, winding up, bankruptcy or reorganization of IMMC.
b. Due Authorization. IMMC has the corporate power, authority and
capacity to enter into this Agreement and all other agreements and
instruments to be executed by it as contemplated by this Agreement and
to carry out its obligations under this Agreement and such other
agreements and instruments. The execution and delivery of this
Agreement and such other agreements and instruments and the completion
of the transactions contemplated by this Agreement and such other
agreements and instruments have been duly authorized by all necessary
corporate action on the part of IMMC and the agreement will be
ratified by its shareholders at the next annual meeting of
shareholders.
c. Enforceability of Obligations. This Agreement constitutes a valid and
binding obligation of IMMC, enforceable against IMMC in accordance
with its terms subject, however, to limitations on enforcement imposed
by bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of the rights of creditors or others and to the extent
that equitable remedies such as specific performance and injunctions
are only available in the discretion of the court from which they are
sought. IMMC is not an insolvent person and will not become an
insolvent person as a result of the closing.
d. Title to Assets. IMMC has good and marketable title to all of its
assets, free and clear of any and all liens. The assets are sufficient
to permit the continued operation of the business in substantially the
same manner as conducted in the year ended on the date of this
Agreement. Other than this Agreement, there is no agreement, option or
other right or privilege outstanding in favor of any person for the
purchase from IMMC of the business or of any of the assets out of the
ordinary course of business.
e. Material Contracts. IMMC is not a party to any material contract
except as set forth in Exhibit "G", which shall be attached hereto
prior to the Closing Time.
f. Consents and Approvals. All the consents and approvals necessary for
IMMC to execute this Agreement and complete the contemplated
transactions have been obtained. Except for the consents and
approvals, no consent or approval of any Person is required in
connection with the execution and delivery of this Agreement and the
completion of the transactions contemplated by this Agreement or to
permit the Participating Shareholders to carry on the business after
the closing as the business is currently carried on by IMMC.
g. Notices. No prior notice is required to be delivered to any person in
connection with the execution and delivery of this Agreement and the
completion of the transaction memorialized by this Agreement other
than appropriate 8K filing and filing with the OTC Bulletin Board.
h. Absence of Conflicting Agreements. The execution, delivery and
performance of this Agreement by IMMC and the completion (with any
required consents and approvals and notices) of the transaction
memorialized by this Agreement do not and will not result in or
constitute any of the following:
1. default, breach or violation or an event that, with notice or
lapse of time or both, would be a default, breach or violation of
any of the terms, conditions or provisions of the articles or
by-laws of IMMC or of any contract or license or permit;
2. an event which, pursuant to the terms of any contract or license
or permit, causes any right or interest of IMMC to come to an end
or be amended in any way that is detrimental to IMMC or entitles
any other person to terminate or amend any such right or
interest;
3. the creation or imposition of any lien on any asset; or
4. the violation of any applicable law applicable to or affecting
IMMC.
i. Litigation. There is no action, suit, proceeding, claim, application,
complaint or investigation in any court or before any arbitrator or
before or by any regulatory body or governmental or non-governmental
body pending or threatened by or against IMMC or the transactions
contemplated by this Agreement; and, there is no factual or legal
basis which could give rise to any such action, suit, proceeding,
claim, application, complaint or investigation.
j. Financial Statements. The financial statements of IMMC filed with the
United States Securities And Exchange Commission, and any additional
financial statements provided for dissemination to any of the parties
to this Agreement are true and accurate, to the best knowledge of IMMC
and the IMMC Participating Shareholders, after due inquiry and
investigation.
k. Brokerage Fees. No brokerage fees are being paid or are obligated to
be paid to any third party as a result of this transaction.
l. Operating and Maintenance History. IMMC has provided to the other
parties hereto all existing data regarding the operating and
maintenance history of IMMC for the immediately preceding three years.
m. Compliance with Applicable Laws. To the best of its knowledge, IMMC
has operated and is operating in compliance with applicable laws.
n. Subsidiaries. IMMC has three wholly-owned subsidiaries, Iron Mask
Mining Merger One Corp., which is in good standing under the laws of
the state of Idaho, Merger Sub, which is in good standing under the
laws of the state of Idaho, and Oremont Corporation, which is in good
standing under the laws of the state of Nevada, and IMMC, as sole
shareholder of all three subsidiaries, and the IMMC Participating
Shareholders make the same representations and warranties for Iron
Mask Mining Merger One Corp., Merger Sub and Oremont Corporation as
they do for IMMC in this Section 9, with the exceptions that neither
Iron Mask Mining Merger One Corp., Merger Sub nor Oremont Corporation
are public corporations and have no subsidiaries.
o. Environmental Compliance. To the best of the knowledge of IMMC, and
Oremont Corporation, after due inquiry and investigation:
1. IMMC and Oremont Corporation are in compliance with all
Environmental Laws. "Environmental Laws" shall mean federal or
state laws or regulations relating to pollution, or the
protection of human health or the environment, including, but not
limited to, the Clean Air Act, the Federal Water Pollution
Control Act (as amended by the Clean Water Act of 1977 and the
Water Quality Act of 1987), the Resource Conservation and
Recovery Act of 1965 (as amended by the Hazardous and Solid Waste
Amendments of 1984), the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (as amended by the
Superfund Amendments and Reauthorization Act of 1986), the
Hazardous Materials Transportation Act, the Toxic Substances
Control Act, and the Federal Insecticide, Fungicide & Rodenticide
Act, all as in effect on the Closing Date or, with respect to the
representations and warranties, in effect on the date hereof.
Such compliance includes, but is not limited to (i) the
possession by IMMC and Oremont Corporation of all permits and
other governmental authorizations required under all applicable
Environmental Laws and compliance with the terms and conditions
thereof, and (ii) compliance relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport, or handling of Hazardous Materials. "Hazardous
Materials" means any hazardous or toxic substance regulated or
subject to cleanup authority under any Environmental Laws.
2. IMMC and Oremont Corporation have received no notice from any
governmental authority or third party alleging that IMMC or
Oremont Corporation are not in compliance with Environmental
Laws, and there are no circumstances that may prevent or
interfere with material compliance in the future. IMMC and
Oremont Corporation have made available to Western all material
information that is in the possession of or reasonably available
to IMMC and Oremont Corporation regarding environmental matters
pertaining to the environmental conditions of properties owned or
leased by IMMC and Oremont Corporation. To the best of the
knowledge of IMMC and Oremont Corporation, there have been no
releases of any Hazardous Materials, pollutants, or contaminants
on, or from the real property or leased property of IMMC or
Oremont Corporation that could subject the other parties to this
Agreement to liability under any Environmental Laws.
p. SEC Compliance. IMMC has timely (or within authorized extension
periods) filed all required forms, reports and documents with the
Securities and Exchange Commission (the "SEC") since March 23, 2000,
each of which has complied in all material respects with all
applicable rules of the Securities Act of 1933, as amended ("the
Securities Act") , and the Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder, each as in effect on the
dates such forms, reports and documents were filed. IMMC has delivered
to Western an accurate and complete copy of its Registration Statement
on Form 10 No. SB filed with the SEC on March 23, 2000 (the
"Registration Statement"), its 10KSB for the period ending June 30,
2001 (the "10K"), and its 10QSB for the period ending December 31,
2001 (the "10Q"). The Registration Statement, the 10K, and the 10Q
(including any financial statements or schedules therein) (i) comply
in all material respects with the applicable requirements of the
Securities Act and (ii) do not contain any untrue statements of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
Furthermore, all securities issuances by IMMC have been made in full
compliance with all applicable federal and state securities law.
q. Full Disclosure. None of the foregoing representations and warranties
and no document furnished by or on behalf of IMMC to any of the other
parties hereto in connection with the negotiation of the transactions
contemplated by this Agreement contain any untrue statement of a
material fact or omit to state any material fact necessary to make any
such statement or representation not misleading to a prospective
purchaser of the capital stock of IMMC seeking full information as to
IMMC and its properties, businesses and affairs. Except for those
matters disclosed in this Agreement, there are no facts related to the
business not disclosed in this Agreement which, if learned by the
other parties hereto, might reasonably be expected to materially
diminish their evaluation of the worth or profitability of the
Business or which, if learned by the other parties hereto, might
reasonably be expected to deter them from completing the transactions
contemplated by this Agreement on the terms of this Agreement.
r. Capitalization. The corporation is currently capitalized at
100,000,000 authorized shares of common stock, par value US$0.005,
with 53,962,208 shares of common stock issued and outstanding as of
the date of this Agreement, and the corporation has no stock options,
warrants or rights outstanding or exercisable by any party.
s. Tax Matters. The following terms, as used herein, have the following
meanings:
"Code" means the Internal Revenue Code of 1986, as amended.
"Post-Closing Tax Period" means any Tax period (or portion thereof)
ending after the Closing Date.
"Pre-Closing Tax Period" means any Tax period (or portion thereof)
ending on or before the close of business on the Closing Date.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
(1) Tax Representations and Warranties. IMMC represents and warrants
to the other parties to this Agreement that:
(a) IMMC has filed all Tax Returns required to be filed and no
Taxes are currently due. All such Tax Returns were complete
and correct in all respects. No portion of any Tax Return
that relates to the operation of IMMC has been the subject
of any audit, action, suit, proceeding, claim or examination
by any governmental authority, and no such audit, action,
suit, proceeding, claim, deficiency or assessment is pending
or, to the knowledge of IMMC, threatened. There are no liens
for taxes upon the assets. IMMC does not have, and has not
had, a permanent establishment in any foreign country, as
defined in any applicable tax treaty or convention between
the United States and such foreign country. IMMC does not
have any liability for the taxes of any person (other than
IMMC) under Treasury Regulation Section 1.1502-6 (or any
corresponding provision of state, local or foreign tax law),
as a transferee or successor, by contract, or otherwise. No
portion of the purchase price is subject to any tax
withholding provision of federal, state, local or foreign
law.
(b) IMMC does not have employees, independent contractors,
creditors or other third parties for whom Taxes are required
to be withheld.
(c) No state of facts exists or has existed that would
constitute grounds for the assessment against Western or the
Western Shareholders, whether by reason of transferee
liability or otherwise, of any liability for any tax of
anyone other than Western and the Western Shareholders.
(d) IMMC has no tax liability for the Pre-Closing Tax Period.
(e) IMMC has received no revenue upon which an assessment for
taxes could be based.
(2) Tax Cooperation; Allocation of Taxes.
(a) Any transfer, documentary, sales, use or other tax assessed
upon or with respect to the transfer of the capital stock of
Western to IMMC and any recording or filing fees with
respect thereto shall be the responsibility of IMMC.
(b) IMMC and Western shall file all required tax returns and
shall not make any inconsistent written statements or take
any inconsistent position on any tax return, in any refund
claim, during the course of any U.S. Internal Revenue
Service ("IRS") audit or other tax audit, for any financial
or regulatory purpose, in any litigation or investigation or
otherwise.
10. Representations and Warranties of Western and the Western Shareholders As
To Western. As a material inducement to entering into this Agreement and
completing the transactions contemplated by this Agreement and
acknowledging that IMMC and the IMMC Participating Shareholders are
entering into this Agreement in reliance upon the representations and
warranties of Western and the Western Shareholders set out in this Section
10, Western and the Western Shareholders represent and warrant to IMMC and
the IMMC Participating Shareholders as follows with regard to Western:
a. Incorporation and Power. Western is a corporation incorporated and
validly existing under the laws of the State of Idaho. Western has
sent to the appropriate authorities all annual returns and financial
statements required to be sent under the laws of the jurisdiction of
its incorporation. Western has the corporate power and authority and
is qualified to own and dispose of its Assets. No act or proceeding
has been taken by or against Western in connection with the
dissolution, liquidation, winding up, bankruptcy or reorganization of
Western.
b. Due Authorization. Western has the corporate power, authority and
capacity to enter into this Agreement and all other agreements and
instruments to be executed by it as contemplated by this Agreement and
to carry out its obligations under this Agreement and such other
agreements and instruments. The execution and delivery of this
Agreement and such other agreements and instruments and the completion
of the transactions contemplated by this Agreement and such other
agreements and instruments have been duly authorized by all necessary
corporate action on the part of Western and its shareholders.
c. Enforceability of Obligations. This Agreement constitutes a valid and
binding obligation of Western, enforceable against Western in
accordance with its terms subject, however, to limitations on
enforcement imposed by bankruptcy, insolvency, reorganization or other
laws affecting the enforcement of the rights of creditors or others
and to the extent that equitable remedies such as specific performance
and injunctions are only available in the discretion of the court from
which they are sought. Western is not an insolvent person and will not
become an insolvent person as a result of the Closing.
d. Title to Assets. Western has good and marketable title to all of its
assets, free and clear of any and all liens, except for the liens set
forth in Exhibit "H" which shall be attached hereto prior to the
Closing Time. The assets are sufficient to permit the continued
operation of the business in substantially the same manner as
conducted in the year ended on the date of this Agreement. Other than
this Agreement, there is no agreement, option or other right or
privilege outstanding in favor of any person for the purchase from
Western of the business or of any of the assets out of the ordinary
course of business.
e. Material Contracts. Western is not a party to any material contracts,
except as set forth in Exhibit "I", which shall be attached hereto
prior to the Closing Time.
f. Consents and Approvals. Except for shareholder approval, all the
consents and approvals necessary for Western to execute this Agreement
and complete the contemplated transactions have been obtained. Except
for the consents and approvals, no consent or approval of any person
is required in connection with the execution and delivery of this
Agreement and the completion of the transactions contemplated by this
Agreement or to permit the participating shareholders to carry on the
business after the closing as the business is currently carried on by
Western.
g. Notices. Except for shareholder meeting notice, no prior notice is
required to be delivered to any person in connection with the
execution and delivery of this Agreement and the completion of the
transaction memorialized by this Agreement.
h. Absence of Conflicting Agreements. The execution, delivery and
performance of this Agreement by Western and the completion (with any
required consents and approvals and notices) of the transaction
memorialized by this Agreement do not and will not result in or
constitute any of the following: 1.1 a default, breach or violation or
an event that, with notice or lapse of time or both, would be a
default, breach or violation of any of the terms, conditions or
provisions of the articles or bylaws of Western or of any contract or
license or permit;
1.2 an event which, pursuant to the terms of any contract or license
or permit, causes any right or interest of Western to come to an
end or be amended in any way that is detrimental to Western or
entitles any other person to terminate or amend any such right or
interest;
1.3 the creation or imposition of any lien on any asset; or
1.4 the violation of any applicable law applicable to or affecting
Western.
i. Litigation. There is no action, suit, proceeding, claim, application,
complaint or investigation in any court or before any arbitrator or
before or by any regulatory body or governmental or non-governmental
body pending or threatened by or against Western related to Western or
the transactions contemplated by this Agreement; and, there is no
factual or legal basis which could give rise to any such action, suit,
proceeding, claim, application, complaint or investigation.
j. Financial Statements. The financial statements of Western heretofore
provided to IMMC, including tax returns, are true and accurate, to the
best of the knowledge of Western and the Western Shareholders, after
due inquiry and investigation.
k. Brokerage Fees. No brokerage fees are being paid or are obligated to
be paid to any third party as a result of the transaction.
l. Operating and Maintenance History. Western has provided to IMMC all
existing data regarding the operating and maintenance history of
Western for the immediately preceding three years.
m. Compliance with Applicable Laws. To the best of its knowledge, Western
has operated and is operating in compliance with applicable laws.
n. Subsidiaries. Western has one wholly-owned subsidiary: Virtual Science
Services, Inc. ("VSSI"), which is in good standing under the laws of
the state of Idaho, and Western, as sole shareholder of Virtual
Science Services, Inc., makes the same representations and warranties
for its subsidiary as it does for itself in this Section 10, with the
exception that Virtual Science Services, Inc. has no subsidiaries.
o. Environmental Compliance. To the best of the knowledge of Western and
VSSI, after due inquiry and investigation:
1. Western and VSSI are in compliance with all Environmental Laws.
"Environmental Laws" shall mean federal or state laws or
regulations relating to pollution, or the protection of human
health or the environment, including, but not limited to, the
Clean Air Act, the Federal Water Pollution Control Act (as
amended by the Clean Water Act of 1977 and the Water Quality Act
of 1987), the Resource Conservation and Recovery Act of 1965 (as
amended by the Hazardous and Solid Waste Amendments of 1984), the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (as amended by the Superfund Amendments and
Reauthorization Act of 1986), the Hazardous Materials
Transportation Act, the Toxic Substances Control Act, and the
Federal Insecticide, Fungicide & Rodenticide Act, all as in
effect on the Closing Date or, with respect to the
representations and warranties, in effect on the date hereof.
Such compliance includes, but is not limited to (i) the
possession by Western of all permits and other governmental
authorizations required under all applicable Environmental Laws
and compliance with the terms and conditions thereof, and (ii)
compliance relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling of
Hazardous Materials. "Hazardous Materials" means any hazardous or
toxic substance regulated or subject to cleanup authority under
any Environmental Laws.
2. Western and VSSI have received no notice from any governmental
authority or third party alleging that they are not in compliance
with Environmental Laws, and there are no circumstances that may
prevent or interfere with material compliance in the future.
Western and VSSI have made available to IMMC all material
information that is in the possession of or reasonably available
to Western or VSSI regarding environmental matters pertaining to
the environmental conditions of properties owned or leased by
Western or VSSI. To the best of their knowledge, there have been
no releases of any Hazardous Materials, pollutants, or
contaminants on, or from the real property or leased property of
Western or VSSI that could subject the other parties to this
Agreement to liability under any Environmental Laws.
p. Full Disclosure. None of the foregoing representations and warranties
and no document furnished by or on behalf of Western to IMMC in
connection with the negotiation of the transactions contemplated by
this Agreement contain any untrue statement of a material fact or omit
to state any material fact necessary to make any such statement or
representation not misleading to a prospective purchaser of the
capital stock of Western seeking full information as to Western and
its properties, businesses and affairs. Except for those matters
disclosed in this Agreement, there are no facts related to the
business not disclosed in this Agreement which, if learned by IMMC,
might reasonably be expected to materially diminish its evaluation of
the worth or profitability of the business or which, if learned by
IMMC, might reasonably be expected to deter them from completing the
transactions contemplated by this Agreement on the terms of this
Agreement.
q. Capitalization. The corporation is currently capitalized at
100,000,000 authorized shares of common stock, no par value, with
51,410,000 shares of common stock issued and outstanding as of the
date of this Agreement, and the corporation has no stock options,
warrants or rights outstanding or exercisable by any party.
r. Tax Matters. The following terms, as used herein, have the following
meanings:
"Code" means the Internal Revenue Code of 1986, as amended.
"Post-Closing Tax Period" means any Tax period (or portion thereof)
ending after the Closing Date.
"Pre-Closing Tax Period" means any Tax period (or portion thereof)
ending on or before the close of business on the Closing Date.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
(1) Tax Representations and Warranties. Western represents and
warrants to the other parties to this Agreement that:
(a) Western has filed all tax returns required to be filed and
no taxes are currently due. All such tax returns were
complete and correct in all respects. No portion of any tax
return that relates to the operation of the business has
been the subject of any audit, action, suit, proceeding,
claim or examination by any governmental authority, and no
such audit, action, suit, proceeding, claim, deficiency or
assessment is pending or, to the knowledge of Western,
threatened. Western is not currently the beneficiary of any
extension of time within which to file its tax returns for
the most recent fiscal year, and Western has not waived any
statute of limitation with respect to any tax or agreed to
any extension of time with respect to a tax assessment or
deficiency. There are no liens for taxes upon the assets.
Western does not have, and has not had, a permanent
establishment in any foreign country, as defined in any
applicable tax treaty or convention between the United
States and such foreign country. Western does not have any
liability for the taxes of any person (other than Western)
under Treasury Regulation Section 1.1502-6 (or any
corresponding provision of state, local or foreign tax law),
as a transferee or successor, by contract, or otherwise. No
portion of the purchase price is subject to any tax
withholding provision of federal, state, local or foreign
law.
(b) Western has employees, independent contractors, creditors or
other third parties for whom taxes are required to be
withheld and covenants that it has withheld, and, when due,
remitted the required payroll taxes, both federal, state,
and, if applicable, local, in full.
(c) No state of facts exists or has existed that would
constitute grounds for the assessment against IMMC or the
IMMC participating shareholders, whether by reason of
transferee liability or otherwise, of any liability for any
tax of anyone other than IMMC or the IMMC participating
shareholders.
(d) Western has no tax liability for the Pre-Closing tax period.
(e) Western has received revenue in the current fiscal year upon
which an assessment for taxes could be based.
(2) Tax Cooperation; Allocation of Taxes.
(a) Any transfer, documentary, sales, use or other taxes
assessed upon or with respect to the transfer of the capital
stock of IMMC to the Western Shareholders and any recording
or filing fees with respect thereto shall be the
responsibility of the Western Shareholders.
(b) IMMC and Western shall file all required tax returns and
shall not make any inconsistent written statements or take
any inconsistent position on any tax return, in any refund
claim, during the course of any U.S. Internal Revenue
Service ("IRS") audit or other tax audit, for any financial
or regulatory purpose, in any litigation or investigation or
otherwise.
11. Representations of Western and Each of the Western Shareholders As To The
Western Shareholders. Western and each of the Western Shareholders,
individually, represent as a material part of this transaction that, to the
best of Western's and such Western Shareholder's knowledge and, where
applicable, the knowledge of its officers, directors, agents, attorneys and
solicitors:
(a) Each of the Western Shareholders owns the number of shares of the
capital stock of Western set forth in Exhibit "A" attached hereto,
which ownership is free and clear of all encumbrances or claims of any
third parties whatsoever.
(b) If any Western Shareholder is other than an individual, that it has
full right, power, legal capacity and authority to enter into this
Agreement and the contemplated transaction, and this Agreement shall
constitute a valid and binding obligation of the Western Shareholder
enforceable in accordance with the terms hereof.
(c) Such Western Shareholder has all necessary legal authority to own its
assets and to carry on its business as now conducted by it, and, if
applicable, it is registered as required and in good standing with
respect to the filing of annual returns under the laws of all
jurisdictions in which its failure to so register would have an
adverse effect on its rights and obligations under this Agreement.
(d) Each Western Shareholder has been advised to seek his/her/its own
professional advice regarding the transactions contemplated by this
Agreement and is relying upon his/her/its own counsel regarding this
transaction and not on the counsel of any other party hereto,
including IMMC or Western.
12. Representations of IMMC and Each of the IMMC Participating Shareholders As
To the IMMC Participating Shareholders. IMMC and each of the IMMC
Participating Shareholders, individually, represent as a material part of
this transaction that, to the best of IMMC's and such IMMC Participating
Shareholder's knowledge and, where applicable, the knowledge of its
officers, directors, agents, attorneys and solicitors:
(a) Each IMMC Participating Shareholder owns the number of shares of the
capital stock of IMMC Participating set forth in Exhibit "B", which
ownership is free and clear of all encumbrances or claims of any third
parties whatsoever.
(b) If any IMMC Participating Shareholder is other than an individual,
that it has full right, power, legal capacity and authority to enter
into this Agreement and the contemplated transaction, and this
Agreement shall constitute a valid and binding obligation of the IMMC
Participating Shareholder enforceable in accordance with the terms
hereof.
(c) Such IMMC Participating Shareholder has all necessary legal authority
to own its assets and to carry on its business as now conducted by it,
and, if applicable, it is registered as required and in good standing
with respect to the filing of annual returns under the laws of all
jurisdictions in which its failure to so register would have an
adverse effect on its rights and obligations under this Agreement.
(d) Each IMMC Participating Shareholder has been advised to seek
his/her/its own professional advice regarding the transactions
contemplated by this Agreement and is relying upon his/her/its own
counsel regarding this transaction and not on the counsel of any other
party hereto, including IMMC or Western.
13. Costs of Transaction. Except where expressly stated otherwise herein, each
party shall bear its own costs and expenses of entering into the
transaction, including, but not limited to, travel, lodging, meals,
salaries, commissions, attorneys' fees, accountants' fees, other
professional fees, regulatory fees, and taxes.
14. Rights Upon Breach of Agreement. The parties hereto agree and acknowledge
that the breach of any portion of this Agreement will cause irreparable
harm and significant injury to the non-breaching party which may be
difficult to ascertain. Accordingly, and in addition to all other remedies
available to the parties in equity and at law, the non-breaching party
shall have the right to obtain injunctive relief, both temporary and
permanent, enjoining any breach of this Agreement. Nothing herein contained
is intended to nor shall it limit or affect any rights at law or by statute
or otherwise of any party aggrieved as against the other parties for a
breach or threatened breach of any provision hereof, it being the intention
by this paragraph to make clear the agreement of the parties that the
respective rights and obligations of the parties hereunder shall be
enforceable in equity as well as at law or otherwise.
15. Notices. All notices, consents and demands under this Agreement shall be in
writing and may be delivered personally, sent by telegram, telex, air
courier or facsimile or may be forwarded by first class pre-paid registered
or certified mail to the address for each party set forth above, or to such
address as each party may from time to time specify by notice. Any such
notice shall be deemed to have been given and received on the business day
next following the date of delivery.
16. Grammatical Construction. In this Agreement, whenever the context so
requires, the masculine gender includes the feminine and/or neuter, the
singular number includes the plural, and words importing persons shall
include firms or corporations and vice versa. The terms "$" and "US$" shall
mean United States Dollars.
17. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, all of which together shall constitute one and the same
instrument and when so signed shall be deemed to bear the date first
written above.
18. Choice of Law, Jurisdiction and Venue. This Agreement and any disputes
arising hereunder shall be governed by the laws of the State of Idaho,
United States of America. In the event of any dispute, the parties agree
that good faith efforts shall be made to resolve the dispute through
voluntary mediation or arbitration. In the event of court action in
relation to this Agreement, exclusive original jurisdiction and venue shall
lie with the District Court for the District of Idaho which is responsible
for the County of Bonneville, State of Idaho.
19. Severability. If any provision of this Agreement, or the application
thereof to any person or circumstance, shall for any reason or to any
extent, be invalid or unenforceable, such invalidity or unenforceability
shall not in any manner affect or render invalid or unenforceable the
remainder of this Agreement, and the application of that provision to other
persons or circumstances shall not be affected but, rather, shall be
enforced to the extent permitted by law.
20. Warranty of Authority. The persons executing and delivering this Agreement
on behalf of the parties represent and warrant that each of them is duly
authorized to do so and that the execution of this Agreement is the lawful
and voluntary act of the parties.
21. Assignability. Neither this Agreement, nor any rights or obligations
conferred hereunder, may be assigned in whole or in part by either party
without obtaining the prior written consent of the other party.
22. Time; Waiver Of Breach. It is agreed by the parties that time is of the
essence to this Agreement. The failure of either party to enforce for any
time or for any period of time any of the provisions of this Agreement
shall not be construed as a waiver of such provision or of the right of
such party thereafter to enforce each and every such provision.
23. Force Majeure. In the event that the parties shall be prevented from
performing any of the obligations hereunder by reason of labor
disturbances, shortage of labor or equipment, strikes, lockouts, other
industrial disturbances, inability to obtain transportation, failure of
title, act of God, act of a public enemy, war, blockade, riot,
insurrection, disaster, lightning, fire, storm, flood, inclement weather,
explosion, litigation, restraining orders, injunctions, or orders of courts
or government agencies, or any law, regulations, restrictions, or actions
or inactions of governmental agencies, or on account of any eventuality or
condition, whether enumerated or not, beyond the reasonable control of such
party, including state, federal, or local safety or environmental statutes
or regulations, the parties' obligations hereunder shall xxxxx during the
period of such conditions, but only to the extent that the parties are
prevented, by reason of such conditions, from complying with the
requirements set forth in this Agreement within the appropriate times. The
parties agree that the time within which such compliance is required shall
automatically be extended for the length of time during which the condition
prevails.
24. Indemnification. Each party hereto shall defend, indemnify and hold
harmless each and every other party hereto and their employees, agents,
representatives, and advisors from any and all claims, liabilities,
judgments, penalties, losses, costs, damages and expenses (including
amounts paid in settlement, costs of investigation and reasonable
attorneys' fees and expenses) arising out of or relating to:
(a) any breach of any representation or warranty made in this Agreement or
any related documents by the indemnifying party;
(b) any breach of any covenant, agreement or undertaking made in this
Agreement or any related documents by the indemnifying party;
(c) any fraud or willful misconduct by the indemnifying party in
connection with this Agreement or any related documents.
25. Further Assurances. Each of the parties agrees that it shall take from time
to time such actions and execute such additional instruments as may be
reasonably necessary or convenient to implement and carry out the intent
and purpose of this Agreement.
26. Modification of Agreement. It is expressly understood and agreed by and
between the parties hereto that this Agreement may be modified only by a
written instrument, which written instrument must be signed by all of the
parties to this Agreement.
27. Entire Agreement. All of the terms and conditions of this Agreement between
the parties are contained herein, and NO REPRESENTATIONS OR INDUCEMENTS
HAVE BEEN MADE OTHER THAN THOSE SPECIFICALLY SET FORTH, WITH THE SOLE
EXCEPTION OF THE SHARE VOTING AGREEMENT BETWEEN THE WESTERN SHAREHOLDERS
AND THE IMMC PARTICIPATING SHAREHOLDERS AS REFERRED TO HEREIN.
28. Termination.
(a) This Agreement may be terminated:
(1) prior to the Closing by IMMC if (i) there is a material breach of
any covenant or obligation of Western or the Western Shareholders
or (ii) IMMC reasonably determines that the timely satisfaction
of any condition set forth in Section 2 has become impossible
(other than as a result of any failure on the part of IMMC to
comply with or perform any covenant or obligation of IMMC set
forth in this Agreement);
(2) prior to the Closing by Western if (i) there is a material breach
of any covenant or obligation of IMMC or the IMMC Participating
Shareholders or (ii) Western reasonably determines that the
timely satisfaction of any condition set forth in Section 2 has
become impossible (other than as a result of any failure on the
part of Western to comply with or perform any covenant or
obligation of Western set forth in this Agreement);
(3) by either IMMC or Western if the Closing has not taken place on
or before April 4, 2002 (other than as a result of any failure on
the part of such party seeking termination to comply with or
perform any covenant or obligation of said party set forth in
this Agreement);
(4) by the mutual consent of IMMC and Western.
(b) If IMMC wishes to terminate this Agreement pursuant to Section 28,
IMMC shall deliver to Western a written notice stating that IMMC is
terminating this Agreement and setting forth a brief description of
the basis on which IMMC is terminating this Agreement. If Western
wishes to terminate this Agreement pursuant to Section 28, Western
shall deliver to IMMC a written notice terminating this Agreement and
setting forth a brief description of the basis on which this Agreement
is terminated.
If this Agreement is terminated pursuant to Section 28, all further
obligations of the parties under this Agreement shall automatically
terminate; provided, however, that none of the parties shall be relieved of
any obligation or liability arising from any prior breach by such party of
any provision of this Agreement.
29. Survival of Representations and Warranties. All representations and
warranties made in this Agreement shall survive the Closing of this
Agreement, except that any party to whom a representation or warranty has
been made in this Agreement shall be deemed to have waived any
misrepresentation or breach of representation or warranty of which such
party had knowledge prior to Closing. Any party learning of a
misrepresentation or breach of representation or warranty under this
Agreement shall immediately give written notice thereof to all other
parties to this Agreement.
IN WITNESS WHEREOF, the parties hereto are deemed to have executed
this instrument the day and year first above written.
WESTERN ENGINEERING SERVICES,
INC.:
By: _____________________________
Its President
ATTEST:
By: _____________________________
Its Secretary
THE PRINCIPAL SHAREHOLDERS OF WESTERN:
-------------------------------
Xxxxxx Xxxxxx
-------------------------------
X. Xxxxxxx Xxxx
-------------------------------
Xxxxxx Xxxxxxx
-------------------------------
Xxxxx Xxxxxx
-------------------------------
XxXxx Xxxxxxx
-------------------------------
Xxxx X. Xxxxxx
-------------------------------
Xxxxxxx Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxx
IRON MASK MINING COMPANY:
-------------------------------
Xxxxxx X. Xxxxxxx, Vice-President
ATTEST:
-------------------------------
Xxxxxx X. Xxxxxxx, Assistant Secretary
THE IMMC PARTICIPATING SHAREHOLDERS:
------------------------------- --------------------------------
Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
------------------------------- --------------------------------
Xxxxxx Xxxxx Xxxxx X. Xxxxxxxx
CORDOBA CORPORATION: ________________________________
Xxxxxxx X. Xxxxx
By: _____________________________
Xxxxx X. Xxxxxxxx, President & CEO
IRON MASK MINING MERGER TWO CORP.:
By: __________________________________
Its _________________________________
EXHIBIT "A" - LIST OF WESTERN SHAREHOLDERS
Name And Address Western Share Holdings IMMC Shares Allocated
---------------- ---------------------- ---------------------
Xxxxx X. Xxxxxx 9,180,000 3,751,001
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxxx 150,000 61,291
0000 Xxxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxx 00000
Xxxxx X. Xxxxxxx 200,000 81,721
00000 X. 000 Xxxx
Xxxxx Xxxxx, Xxxxx 00000
Xxxxxx X. Xxxxxx 17,850,000 7,293,614
0000 Xxxxxxxxx Xxxx
Xxxxx Xxxxx, Xxxxx 00000
Xxxxxx X. Xxxxxxx 9,180,000 3,751,001
0000 Xxxxxxxx Xxxx
Xxxxx Xxxxx, Xxxxx 00000
Xxxx X. Xxxxxx 1,020,000 416,778
000 Xxxx 00xx Xxxxxx
Xxxxx Xxxxx, Xxxxx 00000
X. Xxxxxxx Xxxx 13,770,000 5,626,502
0000 X. Xxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxx 60,000 24,516
0000 Xxxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxx 00000
EXHIBIT "A-1"- Directors and Officers of the Surviving Corporation
Exhibit "B" - LIST OF IMMC PARTICIPATING SHAREHOLDERS
Xxxxx X. Xxxxxxxx 400,000
c/o Xxxxx Xxxxx Law Offices
0000 X. Xxxxxxx
Xxxxxxxx, XX 00000
Cordoba Corporation 16,267,280
c/o Xxxxx Xxxxx Law Offices
0000 X. Xxxxxxx
Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx 3,403,828
P. O. Xxx 000
Xxxxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxxxx 3,201,173
P. O. Xxx 000
Xxxxxxxx, Xxxxxxx 00000
Xxxxxx X. Xxxxx 1,659,862
P. O. Xxx 000
Xxxxxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxx 2,150,534
P. O. Xxx 000
Xxxxxxx, Xxxxxx 00000
EXHIBIT "C" -
TRANSFER OR ENCUMBRANCE OF ASSETS OR INCURRING OF ADDITIONAL
DEBT SINCE LETTER OF INTENT BY WESTERN
EXHIBIT "D"
TRANSFER OR ENCUMBRANCE OF ASSETS OR INCURRING OF ADDITIONAL
DEBT SINCE LETTER OF INTENT BY IMMC
NONE.
EXHIBIT "E"
LIST OF ASSETS AND LIABILITIES OF WESTERN
EXHIBIT "F"
LIST OF ASSETS AND LIABILITIES OF IMMC
1. See attached Balance Sheet as of 12/31/2001.
2. Normal monthly trade receivables
EXHIBIT "G"
LIST OF MATERIAL CONTRACTS OF IMMC
1. American Diatomite Contract
2. Yellow Pine Resources (Paymaster)
3. Oremont Agreement
4. Cordoba Corp. and Garnet Mining Corp.
5. Option to Buy Copper Cliff
6. Option to Buy Lead Xxxx, Xxxxx and Hartford claims
7. Consulting Agreement for Xxxxxxx Xxxxx
8. Consulting Xxxxxx Xxxxxxx
9. Consulting Agreement for Xxxxxx Xxxxxxx
10. Consulting Agreement for Xxx Xxxxx
11. Consulting Agreement for Xxxxx Xxxxxxxx
12. Consulting Agreement for Xxxxx Xxxxxxx
13. Corporate Resolutions as of January 1, 2002
14. Letter Of Intent
EXHIBIT "H"
LIST OF LIENS AGAINST ASSETS OF WESTERN
EXHIBIT "I"
LIST OF MATERIAL CONTRACTS OF WESTERN
