Exhibit 2.1
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT, (hereinafter the "Agreement") is made and
entered into this 5th day of November 2003 by and between Cementitious
Materials, Inc., formerly known as American Thorium, Inc., a Nevada
corporation (hereinafter "ATI"); Cementitious Material Technologies, Inc., a
Nevada corporation (hereinafter "Cementitious"); and the shareholders of
Cementitious (hereinafter "Shareholders").
RECITALS
WHEREAS, ATI desires to acquire all of the issued and outstanding shares
of Cementitious capital stock solely in exchange for 4,947,000 shares of
authorized but previously unissued ATI common stock, par value $.001 per
share, on a one-to-one ratio pursuant to the applicable laws of the State of
Nevada;
WHEREAS, in consideration for certain services related to the negotiation
and execution of this Agreement and the transactions contemplated hereby, ATI
and Cementitious have agreed that an aggregate of 4,553,000 shares of
authorized but previously unissued ATI common stock are to be issued to four
individuals as described in Section 6.6 below;
WHEREAS, the respective boards of directors of ATI and Cementitious have
approved and adopted this Agreement and it is the intent of the parties
hereto that the transactions contemplated hereby be structured so as to
qualify as a tax-free exchange under Subchapter C of the Internal Revenue
Code of 1986, as amended (the "IRC"), and the provisions of this Agreement
will be interpreted in a manner consistent with this intent; and
WHEREAS, the Shareholders of Cementitious signatory to this Agreement
desire to exchange all of their shares of Cementitious capital stock solely
for shares of ATI common stock in the respective amounts set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties and covenants herein contained, the parties
hereby agree as follows:
ARTICLE I
ACQUISITION AND EXCHANGE OF SHARES
SECTION 1.1. The Agreement. The parties hereby agree that ATI will acquire
all of the issued and outstanding shares of Cementitious common stock
("Cementitious capital stock") solely in exchange for 4,947,000 shares of
authorized but previously unissued ATI common stock, par value $.001 per
share, post-split as set forth in Section 1.4 below, on a one-to-one ratio.
The parties hereto agree that at the Closing of this Agreement as hereinafter
defined: (i) Cementitious will become a wholly-owned subsidiary of ATI
subject to the conditions and provisions of Section 1.5 hereof; (ii) the
management and business operations of ATI will be reorganized; and (iii) the
name of ATI will have been changed to Cementitious Materials, Inc.
SECTION 1.2. Exchange of Shares.
(a) Upon the Closing of this Agreement, ATI will cause to be issued and
held for delivery to the Shareholders or their designees, stock
certificates representing an aggregate of 4,947,000 shares of ATI common
stock (the "ATI shares"), solely in exchange for all the issued and
outstanding shares of Cementitious capital stock on a one-to-one ratio,
which shares will be delivered to ATI at the Closing.
(b) The ATI shares to be issued hereunder will be authorized, but
previously unissued shares of ATI common stock. The ATI shares will be
issued to the Shareholders in the respective amounts set forth in Schedule
1.2 annexed hereto and, by this reference, made a part hereof.
(c) All ATI shares to be issued hereunder are deemed "restricted
securities" as defined by Rule 144 of the Securities Act of 1933 (the
"1933 Act"), and each recipient will represent in writing that he or she
is acquiring said shares for investment purposes only and without the
intent to make a further distribution of the shares. All ATI shares to be
issued under the terms of this Agreement will be issued pursuant to an
exemption from the registration requirements of the 1933 Act, under
Section 4(2) of the 1933 Act and the rules and regulations promulgated
thereunder. Certificates representing the ATI shares to be issued
hereunder will bear a restrictive legend in substantially the following
form:
The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be offered
for sale, sold or otherwise transferred except in compliance with
the registration provisions of such Act or pursuant to an exemption
from such registration provisions, the availability of which is to
be established to the satisfaction of the Company.
SECTION 1.3. Closing. The closing of this Agreement and the transactions
contemplated hereby (the "Closing") will take place at a date and time (the
"Closing Date") and place to be mutually agreed upon by the parties hereto,
and will be subject to the provisions of Article X of this Agreement. At the
Closing:
(a) Cementitious will deliver to ATI stock certificates representing
one hundred percent (100%) of the issued and outstanding shares of
Cementitious capital stock of the Shareholders, duly endorsed, so as to
make ATI the holder thereof, free and clear of all claims and
encumbrances;
(b) ATI will deliver to the Shareholders, stock certificates
representing an aggregate of 4,947,000 shares of ATI common stock, which
certificates will bear a standard restrictive legend in the form
customarily used with restricted securities and as set forth in Section
1.2(c) above;
(c) ATI will deliver an Officer's Certificate as described in Sections
9.1, 9.2 and 9.4 hereof, dated the Closing Date, that all representations,
warranties, covenants and conditions set forth herein by ATI are true and
correct as of, or have been fully performed and complied with by, the
Closing Date;
(d) Cementitious will deliver an Officer's Certificate as described in
Sections 8.1, 8.2 and 8.4 hereof, dated the Closing Date, that all
representations, warranties, covenants and conditions set forth herein by
Cementitious are rue and correct as of, or have been fully performed and
complied with by, the Closing Date; and
(e) The current ATI Board of Directors will appoint four new members to
the ATI Board as directed by Cementitious, and immediately thereafter, H.
Xxxxxxx Xxxxxxxx will resign as a director and executive officer of ATI.
SECTION 1.4. Ratification by Board of Directors and by Written Consent of
Shareholders. In anticipation of this Agreement, ATI has taken all
necessary and requisite action to call for and hold a Special Meeting of its
Board of Directors, and to obtain the written consent of at least a majority
of its shareholders, as applicable, in order to transact the following
business:
(a) To ratify the proposal to effect a one (1) share for four (4)
shares reverse stock split of ATI's issued and outstanding shares of
common stock, which shall also change ATI's authorized capitalization from
50,000,000 shares of common stock to 12,500,000 shares;
(b) To ratify this Agreement and all transactions contemplated hereby;
and
(c) To ratify the proposed amendment to ATI's Articles of Incorporation
to change the corporate name to Cementitious Materials, Inc.
SECTION 1.5. Consummation of Transaction. If at the Closing, no condition
exists which would permit any of the parties to terminate this Agreement, or
a condition then exists and the party entitled to terminate because of that
condition elects not to do so, then the transactions herein contemplated will
be consummated upon such date, and then and thereupon, ATI will file any
additional necessary documents that may be required by the State of Nevada.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ATI
ATI hereby represents, warrants and agrees that:
SECTION 2.1. Organization, Good Standing and Corporate Power of ATI. ATI
is a corporation duly organized, validly existing and presently in good
standing under the laws of the State of Nevada, is duly qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction in which such qualification is necessary, and has the corporate
power and authority to own its properties and assets and to transact the
business in which it is engaged. There are no corporations or other entities
with respect to which (a) ATI owns any of the outstanding stock or other
interest, or (b) ATI may be deemed to be in control because of factors or
relationships other than the quantity of stock or other interest owned.
SECTION 2.2. Capitalization of ATI. As a result of the reverse stock split
referenced above in Section 1.4(a) effective as of October 21, 2003, the
authorized capital stock of ATI consists of 12,500,000 shares of common
stock, par value $.001 per share, of which 500,042 shares are issued and
outstanding. All shares of ATI common stock currently issued and outstanding
have been duly authorized, validly issued and are fully paid and non-
assessable. There are no preemptive rights, or other outstanding rights,
options, warrants, conversion rights, stock appreciation rights, redemption
rights, repurchase rights, calls, agreements or commitments of any character
obligating ATI to issue any shares of its capital stock or any security
representing the right to acquire, purchase or otherwise receive any such
stock. The ATI Shares to be issued pursuant to this Agreement, when so
issued, will be duly authorized, validly issued, fully paid and non-
assessable.
SECTION 2.3. Charter Documents. Certified copies of the ATI Articles of
Incorporation and By-Laws and all amendments thereto, have been or will be
made available to Cementitious prior to the Closing.
SECTION 2.4. Corporate Documents. The most recent ATI shareholders' list
and corporate minute books, which have been made available to Cementitious,
are complete and accurate as of the date hereof, and the corporate minute
books contain the recorded minutes of all corporate meetings of shareholders
and directors. There are no shareholder agreements, voting agreements,
registration right agreements or other such agreement among ATI's
shareholders or with ATI.
SECTION 2.5. Financial Statements. ATI's financial statements for the
periods ended December 31, 2002 and June 30, 2003, copies of which are
annexed hereto as Schedule 2.5 and, by this reference, made a part hereof,
are true and complete in all material respects, having been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis for the periods covered by such statements, and fairly
present, in accordance with generally accepted accounting principles, the
financial condition of ATI and results of its operations for the periods
covered thereby. Except as otherwise disclosed to Cementitious in writing
and as set forth herein and in Schedule 2.5, and other than according to the
ordinary and usual course of ATI's business consistent with such practice,
(a) ATI has not engaged in any material transaction since the date of its
financial statements, and (b) there has not been any material adverse change
in the business operations, assets, properties, prospects or condition
(financial or otherwise) of ATI, taken as a whole, from that reflected in the
financial statements referred to in this Section 2.5.
SECTION 2.6. Litigation. There is no material litigation, arbitration,
proceeding or investigation pending or threatened to which ATI is a party or
which may result in any material adverse change in the business or condition,
financial or otherwise, of ATI or in any of its properties or assets, or
which might result in any liability on the part of ATI, or which questions
the validity of this Agreement or of any action taken or to be taken pursuant
to or in connection with the provisions of this Agreement and, to the best
knowledge of ATI, there is no basis for any such litigation, arbitration,
proceeding or investigation.
SECTION 2.7. Corporate Authority. ATI has all requisite corporate power
and authority and has taken all corporate actions necessary in order to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated herein, subject to approval of this
Agreement by its Board of Directors and by the unanimous written consent of
its shareholders. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and compliance by ATI
with the provisions hereof will not:
(a) Conflict with or result in a breach of any provisions of, or
constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the creation of any
lien, security interest, charge or encumbrance upon any of the properties
or assets of ATI under, any of the terms, conditions or provisions of the
Articles of Incorporation or By-Laws of ATI, or any note, bond, mortgage,
indenture, license, lease, agreement or any instrument or obligation to
which ATI is a party or by which it is bound; or
(b) Violate any order, writ, injunction, decree, statute, rule or
regulation applicable to ATI or any of its properties or assets. Assuming
due execution and delivery by the parties hereto, this Agreement is the
valid and binding agreement of ATI enforceable against ATI in accordance
with its respective terms, except as such enforceability may be limited by
applicable bankruptcy laws or creditors' rights generally or by general
principles of equity.
SECTION 2.8. SEC Documents; Undisclosed Liabilities. Other than as
referenced by an attachment hereto, since June 30, 2003 ATI has filed with
the Securities and Exchange Commission ("SEC") on a timely basis all reports,
schedules, forms, statements and other documents (including schedules and all
other information incorporated therein) required to be filed under the
Securities Act and the Securities and Exchange Act of 1934 (the "1934 Act")
(collectively the "SEC Documents"). As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the 1933
Act or the 1934 Act, as the case may be, and the rules and regulations of the
SEC promulgated thereunder applicable to such SEC Documents. The ATI
financial statements included in the SEC Documents comply as to form, as of
their respective dates of filing with the SEC, in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto.
SECTION 2.9. Absence of Certain Changes. Except for liabilities incurred in
connection with this Agreement or the transactions contemplated hereby or
thereby, and except as disclosed in the SEC Documents filed and publicly
available prior to the date of this Agreement, since June 30, 2003 ATI has
conducted its business only in the ordinary course, and there has not been
(i) any event or occurrence which could have a material adverse effect on
ATI's business or assets, (ii) except insofar as may have been or required by
a change in GAAP, any change in accounting methods, principles or practices
by ATI materially affecting its assets, liabilities or business or (iii) any
tax election that individually or in the aggregate could reasonably be
expected to have a material adverse effect on ATI's business or assets, or
any of its tax attributes or any settlement or compromise of any material
income tax liability.
ARTICLE III
COVENANTS OF ATI
SECTION 3.1. Conduct Prior to the Closing. ATI covenants and agrees as to
itself that, after the date hereof and prior to the Closing, unless
Cementitious will otherwise approve in writing, which approval will not be
unreasonably withheld:
(a) Except within the regular course of business and for the
transactions contemplated by this Agreement, ATI will not enter into any
material agreement, contract or commitment, whether written or oral, or
engage in any substantive transaction;
(b) ATI will not declare, set aside or pay any dividends or
distributions payable in cash, stock or property, in respect of its
capital stock;
(c) ATI will not amend its Articles of Incorporation or By-Laws,
except as set forth in Section 1.4 above or except for any amendment which
will not hinder, delay or make more costly to Cementitious the
transactions contemplated by this Agreement;
(d) ATI will not authorize, issue, sell, purchase or redeem or
repurchase any shares of its capital stock or any options, rights or other
securities convertible, exchangeable or exercisable for any shares of its
capital stock, except as set forth in Section 1.2 above; and
(e) ATI will grant to Cementitious and its counsel, accountants and
other representatives, full access during normal business hours during the
period prior to the Closing, to all its respective properties, books,
contracts, commitments and records and, during such period, furnish
promptly to Cementitious and such representatives all information relating
to ATI as Cementitious may reasonably request and will extend to
Cementitious the opportunity to meet with ATI's accountants and attorneys
to discuss the financial condition of ATI.
SECTION 3.2. Affirmative Covenants. Prior to Closing, ATI will do the
following:
(a) Use its best efforts to accomplish all actions necessary to
consummate this Agreement, including satisfaction of all conditions
contained in this Agreement;
(b) Promptly notify Cementitious in writing of any material adverse
change in the financial condition, business, operations or key personnel
of ATI, any threatened material litigation or investigation, any breach of
its representations or warranties contained herein, and any material
contract, agreement, license or other agreement which, if in effect on the
date of this Agreement, should have been included in this Agreement or in
a schedule annexed hereto and made a part hereof;
(c) Reserve, and promptly after the Closing, issue and deliver to the
Shareholders and/or their designees, the number of shares of ATI common
stock required hereunder; and
(d) Take any and all other necessary and requisite corporate actions to
accomplish the transactions anticipated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CEMENTITIOUS AND SHAREHOLDERS
Cementitious and Shareholders hereby represent, warrant and agree that:
SECTION 4.1. Organization, Good Standing and Corporate Power of
Cementitious. Cementitious is a corporation duly organized, validly existing
and presently in good standing under the laws of the State of Nevada, is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which such qualification is necessary, and has the
corporate power and authority to own its properties and assets and to
transact the business in which it is engaged. Except as set forth in
Schedule 4.1, are no corporations or other entities with respect to which (a)
Cementitious owns any of the outstanding stock or other interest, or (b)
Cementitious may be deemed to be in control because of factors or
relationships other that the quantity of stock or other interest owned.
SECTION 4.2. Charter Documents. Complete and correct copies of the
Articles of Incorporation and By-Laws of Cementitious and all amendments
thereto, have been or will be made available to ATI prior to the Closing.
SECTION 4.3. Financial Statements / Assets and Liabilities. Cementitious
will not provide any financial statements pursuant to the understanding of
the parties to this Agreement.
SECTION 4.4. Litigation. There is no material litigation, arbitration,
proceeding or investigation pending or threatened to which Cementitious is a
party or which may result in any material change in the business or
condition, financial or otherwise, of Cementitious or in any of its
properties or assets, or which if determined against Cementitious, would have
a material adverse effect against Cementitious, or which might result in any
liability on the part of Cementitious, or which questions the validity of
this Agreement or of any action taken or to be taken pursuant to or in
connection with the provisions of this Agreement, and to the best knowledge
of Cementitious, there is no basis for any such litigation, arbitration,
proceeding or investigation.
SECTION 4.5. Patents, Trade Names and Rights. Schedule 4.5 contains a
complete list of all patents, trademarks and service marks and all trademark,
service xxxx and copyright registrations, patent applications and licenses
owned or held by Cementitious. Cementitious has no knowledge of any facts
and nothing has come to its attention that would lead it to believe that
Cementitious has infringed, misappropriated, or is infringing upon any
trademark, copyright, patent or other similar right of any person. No claim
relating thereto is pending or, to the knowledge of Cementitious, is
threatened.
SECTION 4.6. Authority. Cementitious and its Shareholders representing no
less than one hundred percent (100%) of the issued and outstanding shares of
Cementitious capital stock of record, have approved this Agreement and duly
authorized the execution and delivery hereof. Cementitious has full power,
authority and legal right to enter into this Agreement on behalf of
Cementitious, to consummate the transactions contemplated hereby, and to take
all corporate action necessary to authorize the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby.
The execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and compliance by Cementitious with the
provisions hereof will not (a) conflict with or result in a breach of any
provisions of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
creation of any lien, security interest, charge or encumbrance upon any of
the properties or assets of Cementitious under, any of the terms, conditions
or provisions of the Articles of Incorporation or By-Laws of Cementitious, or
any note, bond, mortgage, indenture, license, agreement or any instrument or
obligation to which Cementitious is party or by which it is bound; or (b)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Cementitious or any of its properties or assets. Assuming due
execution and delivery by the parties hereto, this Agreement represents the
valid and binding agreement of Cementitious enforceable against Cementitious
in accordance with its respective term, except as such enforceability may
limited by applicable bankruptcy laws or creditors' rights generally or by
general principles or equity.
SECTION 4.7. Legal Proceedings and History. Other than as referenced by an
attachment hereto, Cementitious represents that no officer, director or
affiliate of Cementitious, will have been, within the past five years; a
party to any bankruptcy petition against such person or against any business
of which such person was affiliated; convicted in a criminal proceeding or
subject to a pending criminal proceeding (excluding traffic violations and
other minor offenses; subject to any order, judgment or decree, not
subsequently reversed, suspended or vacated, of any court of competent
jurisdiction, permanently or temporarily enjoining, barring, suspending or
otherwise limiting their involvement in any type of business, securities or
banking activities; or found by a court of competent jurisdiction in a civil
action, by the Securities Exchange Commission or the Commodity Futures
Trading Commission to have violated a federal or state securities or
commodities law, and the judgment has not been reversed, suspended or
vacated.
SECTION 4.8. Ownership of Shares. Shareholders representing not less than
one hundred percent (100%) of the Cementitious capital stock currently issued
and outstanding and which stock is to be transferred to ATI under this
Agreement, have full power and authority to transfer such shares of
Cementitious capital stock to ATI hereunder, and such shares are free and
clear of any liens, charges, mortgages, pledges or encumbrances and such
shares are not subject to any claims as to the ownership thereof, or any
rights, powers or interest therein, by any third party.
SECTION 4.9. Investment Purpose . Cementitious and Shareholders represent
that the recipients of the ATI shares hereunder are acquiring the shares for
investment purposes only and acknowledges that the ATI shares issued
hereunder are "restricted securities" and may not be sold, traded or
otherwise transferred without registration under the 1933 Act or exemption
therefrom.
SECTION 4.10. Full Disclosure. None of the representations and warranties
made by Cementitious herein, or in any schedule, certificate or memorandum
furnished or to be furnished by Cementitious, contains or will contain any
untrue statement of material fact, or omit any material fact, the omission of
which would be misleading.
ARTICLE V
COVENANTS OF CEMENTITIOUS
SECTION 5.1. Conduct Prior to the Closing. Cementitious covenants and
agrees that after the date hereof and prior to the Closing, unless ATI will
otherwise approve in writing, which approval will not be unreasonably
withheld:
(a) Cementitious will not declare, set aside or pay any dividends or
distributions payable in cash, stock or property, in respect of its
capital stock;
(b) Cementitious will not amend its Articles of Incorporation or By-
Laws, except for any amendment which will not hinder, delay or make more
costly to ATI the transactions contemplated by this Agreement;
(c) Cementitious will comply with all requirements which federal or
state law may impose on it with respect to this Agreement and the
transactions contemplated hereby, and will promptly cooperate with and
furnish written information to ATI in connection with any such
requirements imposed upon the parties hereto in connection therewith;
(d) Except within the regular course of business, Cementitious will not
incur any indebtedness for money borrowed, issue or sell any debt
securities, incur or suffer to be incurred any liability or obligation of
any nature whatsoever, cause or permit any lien, encumbrance or security
interest to be created or arise on or in any of its properties or assets,
acquire or dispose of fixed assets, change employment terms, enter into
any material or long-term contract, guarantee obligations of any third
party, settle or discharge any balance sheet receivable for less than its
stated amount or enter into any other transaction, except to comply with
the terms of this Agreement; and
(e) Cementitious will grant to ATI and its counsel, accountants and
other representatives, full access during normal business hours during the
period prior to the Closing to all its respective properties, books,
contracts, commitments and records and, during such period, furnish
promptly to ATI and such representatives all information relating to
Cementitious as ATI may reasonably request, and will extend to ATI the
opportunity to meet with Cementitious's accountants and attorneys to
discuss the financial condition of Cementitious.
SECTION 5.2. Affirmative Covenants. Prior to Closing, Cementitious will do
the following:
(a) Use its best efforts to accomplish all actions necessary to
consummate this Agreement, including satisfaction of all the conditions
contained in this Agreement; and
(b) Promptly notify ATI in writing of any materially adverse change in
the financial condition, business, operations or key personnel of
Cementitious, any breach of its representations or warranties contained
herein, and any material contract, agreement, license or other agreement
which, if in effect on the date of this Agreement, should have been
included in this Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1. Expenses. Whether or not the transactions contemplated in
this Agreement are consummated, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby, will be paid by
the party incurring such expense or as otherwise agreed to herein.
SECTION 6.2. Brokers and Finders. Each of the parties hereto represents,
as to itself, that no agent, broker, investment banker or firm or person is
or will be entitled to any broker's or finder's fee or any other commission
or similar fee in connection with any of the transactions contemplated by
this Agreement, except as may be otherwise set forth herein or by separate
document.
SECTION 6.3. Necessary Actions. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations
to consummate and make effective the transactions contemplated by this
Agreement. In the event at any time after the Closing, any further action is
necessary or desirable to carry out the purposes of this Agreement, the
proper executive officers and/or directors of ATI or Cementitious, as the
case may be, will take all such necessary action.
SECTION 6.4. Indemnification.
(a) ATI will indemnify and hold harmless Cementitious and Shareholders
from and against all loss, damage or expense (including reasonable
attorneys' fees) caused by or arising out of (i) any breach or default in
the performance by ATI of any covenant or agreement of ATI contained in
this Agreement, (ii) any breach of warranty or inaccurate or erroneous
representation made by ATI herein or in any certificate or other
instrument delivered by or on behalf of the ATI pursuant hereto and (iii)
any and all actions, suits, proceedings, claims, demands, judgments, costs
and expenses (including reasonable legal and accounting fees) incident to
the foregoing.
(b) Cementitious and Shareholders will indemnify and hold harmless ATI
from and against all loss, damage or expense (including reasonable
attorneys' fees) caused by or arising out of (i) any breach or default in
the performance by Cementitious and/or Shareholders of any covenant or
agreement of Cementitious and/or Shareholders contained in this Agreement,
(ii) any breach of warranty or inaccurate or erroneous representation made
by Cementitious and/or Shareholders herein or in any certificate or other
instrument delivered by or on behalf of the Cementitious and/or
Shareholders pursuant hereto and (iii) any and all actions, suits,
proceedings, claims, demands, judgments, costs and expenses (including
reasonable legal and accounting fees) incident to the foregoing.
SECTION 6.5. Confidentiality. All parties hereto agree to keep
confidential this Agreement and all information and documents relating to
this Agreement until such time as the Agreement and the transactions
contemplated hereunder are made public by means of an appropriate press
release or by any other means reasonably assured to make such information
publicly available.
SECTION 6.6. Issuance of Shares for Services. In connection with the
negotiation and execution of this Agreement and the fulfillment of the
transactions contemplated hereby, H. Xxxxxxx Xxxxxxxx, Xxxxxx X. Xxxxx, Xxxxx
Xxxxxxxx and Xxxx Xxxxx have performed various services, for which the
parties hereto agree that the aforementioned persons are being compensated by
issuing to them an aggregate of 4,553,000 shares of authorized, but
previously unissued ATI common stock in the respective amounts set forth in
Schedule 6.5 annexed hereto and, by this reference, made a part hereof.. The
shares referenced in this Section are deemed to be restricted securities and
will be delivered at the Closing.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
The respective obligations of each party to this Agreement are subject to
the fulfillment, satisfaction or waiver at or prior to the Closing of each of
the following conditions:
SECTION 7.1. Legal Action. No federal or state court or other governmental
entity of competent jurisdiction will have enacted, issued, promulgated,
enforced or entered any statute, rule, regulation, judgment, decree,
preliminary or permanent injunction or other order that is in effect and
restrains, enjoins or otherwise prohibits consummation of the transactions
contemplated by this Agreement (collectively, an "Order"), and no
governmental entity will have instituted any proceeding or formally
threatened to institute any proceeding seeking any such Order and such
proceeding or threat remains unresolved.
SECTION 7.2. Absence of Termination. The obligations to consummate the
transactions contemplated hereby will not have been canceled pursuant to
Article X hereof.
SECTION 7.3. Required Approvals. ATI and Cementitious will have received
all such approvals, consents, authorizations or modifications as may be
required to permit the performance by ATI and Cementitious of the respective
obligations under this Agreement, and the consummation of the transactions
herein contemplated, whether from governmental authorities or other persons,
and ATI and Cementitious will each have received any and all permits and
approvals from any regulatory authority having jurisdiction required for the
lawful consummation of this Agreement.
SECTION 7.4. Blue Sky Compliance. There will have been obtained any and
all permits, approvals and consents of the Securities or "Blue Sky"
Commissions of any jurisdictions, and of any other governmental body or
agency, which counsel for ATI may reasonably deem necessary or appropriate so
that consummation of the transactions contemplated by this Agreement may be
in compliance with all applicable laws.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF ATI
All obligations of ATI under this Agreement are subject to the
fulfillment and satisfaction by Cementitious and Shareholders prior to or at
the time of the Closing, of each of the following conditions, any one or more
of which may be waived by ATI.
SECTION 8.1. Representations and Warranties True at the Closing. All
representations and warranties of Cementitious and Shareholders contained in
this Agreement will be true and correct in all material respects as of the
date of this Agreement and, except to the extent such representations and
warranties speak as of an earlier date, as of the time of the Closing as
though made on and as of the Closing, and Cementitious will have delivered to
ATI a closing certificate, dated the date of the Closing, to such effect and
in the form and substance reasonably satisfactory to ATI, and signed, in the
case of Cementitious, by its president and secretary.
SECTION 8.2. Performance. Each of the obligations of Cementitious to be
performed on or before the Closing pursuant to the terms of this Agreement
will have been duly performed at such time, and Cementitious will have
delivered to ATI a closing certificate, dated the date of the Closing, to
such effect and in form and substance reasonably satisfactory to ATI.
SECTION 8.3. Authority. All action required to be taken by, or on the part
of Cementitious and Shareholders to authorize the execution, delivery and
performance of this Agreement by Cementitious and Shareholders and the
consummation of the transactions contemplated hereby, will have been duly and
validly taken.
SECTION 8.4. Absence of Certain Changes or Events. There will not have
occurred, since the date hereof, any adverse change in the business,
condition, (financial or otherwise), assets or liabilities of Cementitious,
or any event or condition of any character adversely affecting Cementitious,
and Cementitious will have delivered to ATI, a closing certificate, dated the
date of the Closing, to such effect and in form and substance reasonably
satisfactory to ATI and signed, in the case of Cementitious, by its president
and secretary.
SECTION 8.5. Acceptance by Cementitious Shareholders . The holders of
record as of the Closing of an aggregate of not less than one hundred percent
(100%) of the issued and outstanding shares of capital stock of Cementitious
will have agreed to exchange their shares for the ATI shares specified
herein.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF CEMENTITIOUS AND SHAREHOLDERS
All obligations of Cementitious and Shareholders under this Agreement are
subject to the fulfillment and satisfaction by ATI, prior to or at the time
of Closing, of each of the following conditions, any one or more of which may
be waived by Cementitious.
SECTION 9.1. Representations and Warranties True at the Closing. All
representations and warranties of ATI contained in this Agreement will be
true and correct in all material respects as of the date of this Agreement
and, except to the extent such representations and warranties speak as of an
earlier date, as of the time of the Closing as though made on and as of the
Closing, and ATI will have delivered to Cementitious a certificate, dated the
date of the Closing, to such effect and in the form and substance reasonably
satisfactory to Cementitious, and signed, in the case of ATI, by its
president and secretary.
SECTION 9.2. Performance. Each of the obligations of ATI to be performed
on or before the Closing pursuant to the terms of this Agreement will have
been duly performed at the time of the Closing, and ATI will have delivered
to Cementitious a closing certificate, dated the date of the Closing, to such
effect and in form and substance reasonably satisfactory to Cementitious, and
signed, in the case of ATI, by its president and secretary.
SECTION 9.3. Authority. All action required to be taken by, or on the part
of ATI, to authorize the execution, delivery and performance of this
Agreement by ATI, and the consummation of the transactions contemplated
hereby will be duly and validly taken.
SECTION 9.4. Absence of Certain Changes or Events. There will not have
occurred, since the date hereof, any adverse change in the business,
condition, (financial or otherwise), assets or liabilities of ATI or any
event or condition of any character adversely affecting ATI and ATI will have
delivered to Cementitious, a closing certificate, dated the date of the
Closing, to such effect and in form and substance reasonably satisfactory to
Cementitious and signed, in the case of ATI by its president and secretary.
SECTION 9.5. Action by ATI and its Shareholders. Prior to the Closing of
this Agreement, ATI and its shareholders will have approved, if required,
this Agreement, the reverse stock split, the amendments to the Articles of
Incorporation to change ATI's corporate name, and all other actions set forth
in Section 1.4 above.
ARTICLE X
TERMINATION
SECTION 10.1. Termination. Notwithstanding anything herein or elsewhere to
the contrary, this Agreement may be terminated and the transactions
contemplated hereby abandoned and/or rescinded:
(a) By mutual written agreement of all the parties hereto at any time,
whether before or after the approval of this Agreement by the respective
parties;
(b) By the board of directors of ATI at any time prior to the Closing
if:
(i) a condition to ATI's performance under this Agreement or a
covenant of Cementitious and/or Shareholders contained herein will not
be fulfilled on or before the time of the Closing or at such other time
and date specified for the fulfillment for such covenant or condition;
(ii) a material default or breach of this Agreement will be made by
Cementitious and or Shareholders; or
(iii) the Closing will not have taken place on or prior to December
31, 2003.
(c) By the board of directors of Cementitious at any time prior to the
Closing if:
(i) a condition to Cementitious' and Shareholders' performance
under this Agreement or a covenant of ATI contained in this Agreement
will not be fulfilled on or before the Closing or at such other time
and date specified for the fulfillment of such covenant or conditions;
(ii) a material default or breach of this Agreement will be made by
ATI; or
(iii) the Closing will not have taken place on or prior to December
31, 2003.
SECTION 10.2. Effect of Termination. If this Agreement is terminated, this
Agreement, except as to Section 11.1 and Section 11.2, will become void and
of no further effect and there will be no liability on the part of any party
hereto or any of its respective directors, officers, employees, agents,
shareholders, legal, accounting and financial advisors or other
representatives; provided however, that in the case of a termination pursuant
to Sections 10.1(b)(i) or (ii) or 10.1(c)(i) or (ii) hereof, the damages
which the aggrieved party or parties may recover from the defaulting party or
parties will in no event exceed the amount of out-of-pocket costs and
expenses actually incurred by such aggrieved party or parties in connection
with this Agreement, and no party to this Agreement will be entitled to any
injunctive relief. It is further agreed to by the parties hereto that upon
the termination of this Agreement pursuant to Section 10.1 above, all shares
of ATI common stock (ATI shares) issued hereunder will be returned to ATI to
be canceled on its stock ledger and, in the event such ATI shares are not
returned to ATI, ATI will have the absolute right to immediately proceed with
the cancellation of the ATI shares without having possession thereof.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Cost and Expenses. All costs and expenses incurred in
connection with this Agreement will be paid by the party incurring such
expenses. In the event of any termination of this Agreement pursuant to
Section 10.1, subject to the provisions of Section 10.2, ATI and Cementitious
will each bear their own respective expenses.
SECTION 11.2. Extension of Time: Waivers. At any time prior to the
Closing date:
(a) ATI may (i) extend the time for the performance of any of the
obligations or other acts of Cementitious and/or Shareholders, (ii) waive
any inaccuracies in the representations and warranties of Cementitious
and/or Shareholders contained herein or in any document delivered pursuant
hereto by Cementitious and/or Shareholders, and (iii) waive compliance
with any of the agreements or conditions contained herein to be performed
by Cementitious and/or Shareholders. Any agreement on the part of ATI to
any such extension or waiver will be valid only if set forth in an
instrument, in writing, signed on behalf of ATI;
(b) Cementitious may (i) extend the time for the performance of any of
the obligations or other acts of ATI, (ii) waive any inaccuracies in the
representations and warranties of ATI contained herein or in any document
delivered pursuant hereto by ATI and (iii) waive compliance with any of
the agreements or conditions contained herein to be performed by ATI. Any
agreement on the part of Cementitious and to any such extension or waiver
will be valid only if set forth in an instrument, in writing, signed on
behalf of Cementitious.
SECTION 11.3. Notices. Any notice to any party hereto pursuant to this
Agreement will be in writing and given by Certified or Registered Mail or by
facsimile, addressed as follows:
Cementitious Materials, Inc. Cementitious Material Technologies, Inc.
00 Xxxx 000 Xxxxx, Xxxxx 000 Xxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000 0000 00xx Xxxxxx Xxxxx
Fax: (000) 000-0000 Xx. Xxxxxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Copy to:
Xxxxxxx X. Xxxxxxx
Attorney at Law
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxx 00000
Fax: (000) 000-0000
Additional notices are to be given as to each party, at such other address as
should be designated in writing complying as to delivery with the terms of
this Section 11.3. All such notices will be effective when received.
SECTION 11.4. Parties in Interest. This Agreement will inure to the
benefit of and be binding upon the parties hereto and the respective
successors and assigns. Nothing in this Agreement is intended to confer,
expressly or by implication, upon any other person any rights or remedies
under or by reason of this Agreement.
SECTION 11.5. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all together will
constitute one document. The delivery by facsimile of an executed
counterpart of this Agreement will be deemed to be an original and will have
the full force and effect of an original executed copy.
SECTION 11.6. Severability. The provisions of this Agreement will be
deemed severable and the invalidity or unenforceability of any provision
hereof will not affect the validity or enforceability of any of the other
provisions hereof. If any provisions of this Agreement, or the application
thereof to any person or any circumstance, is illegal, invalid or
unenforceable, (a) a suitable and equitable provision will be substituted
therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid or unenforceable provision, and (b) the
remainder of this Agreement and the application of such provision to other
persons or circumstances will not be affected by such invalidity or
unenforceability, nor will such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in
any other jurisdiction.
SECTION 11.7. Governing Law. This Agreement will be deemed to be made in
and in all respects will be interpreted, construed and governed by and in
accordance with the law of the State of Nevada without regard to the conflict
of law principles thereof.
SECTION 11.8. Survival of Representations and Warranties. All terms,
conditions, representations and warranties set forth in this Agreement or in
any instrument, certificate, opinion, or other writing providing for in it,
will survive the Closing and the delivery of the ATI Shares to be issued
hereunder at the Closing, regardless of any investigation made by or on
behalf of any of the parties hereto.
SECTION 11.9. Assignability. This Agreement will not be assignable by
operation of law or otherwise and any attempted assignment of this Agreement
in violation of this subsection will be void.
SECTION 11.10. Amendment. This Agreement may be amended with the approval
of the boards of directors of ATI and Cementitious at any time prior to the
Closing, but no amendment will be made which substantially and adversely
changes the terms hereof. This Agreement may not be amended except by an
instrument, in writing, signed on behalf of each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement in a manner legally binding upon them as of the date first above
written.
"ATI" "Cementitious"
Cementitious Materials, Inc. Cementitious Material Technologies, Inc.
By: _________________________________ By: ______________________________
H Xxxxxxx Xxxxxxxx, President Xxxx Xxxxx, President
Attest: Attest:
_____________________________________ ______________________________
Xxxxxx X. Xxxxx, Secretary Xxxx Xxxxx, Secretary
