EXHIBIT 10.(iv) ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made and entered into as of
this 7th day of November, 1997 by and between Juina Mining Company, Inc., a
Nevada corporation ("Buyer"), and Mineracso Julna Mirim Ltda., a Brazilian
company ("Seller").
RECITALS
WHEREAS, Seller owns certain mineral property known as 'Property 1000* located
In the State of Mato Xxxxxx, Brazil, described in the Brazilian National
Department of Mineral Productions File Number 866.787/85 (the "Property"), as
more particularly described in Exhibit A to this Agreement; and
WHEREAS, Seller desires to sell and Buyer desires to purchase a 70% working
Interest In the Property (the "Acquired Assets") on the terms and subject to
the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Recitals and the mutu,31 covenants,
conditions, representations and warranties hereinafter set forth, the parties
agree as follows:
1. Purchase and Sale of Assets. On the terms and subject to the conditions set
forth in this Agreement, Seller agrees to sell, convey, assign, transfer and
deliver to Buyer and Buyer agrees to purchase from Seller, at the closing on
August 10, 1997, or on such earlier or later date as May DO mutually agreed
upon by the Buyer and the Seller ("Closing Date").
2. Assumption of Obligations and Liabilities. On the Closing Date, Buyer shall
not assume or Eigree lo pay or otherwise perform any obligations or liabilities
of Sellers.
3. Purchase Price. As consideration for the sale, conveyance, assignment,
transfer and delivery of the Assets, Buyer agrees to issue and deliver to
Seller
on the Closing Date, four million five hundred thousand (4,500,000) shares of
its privately held Common Stock, $.001 par value per share (the 'Shares"). After
the Buyer becomes publicly traded, the Shares will be exchanged one for one Into
Common Shares of Restricted Rule 144 publicly traded stock. Seller and Buyer
agree to execute any other documents, representations and warranties required
to qualify the issuance of the shares pursuant to Rule 144 of the Securities
Act of 1933.
4. Closing. The closing shall take place on the Closing Date at the United
States offices of the Buyer at the offices of Juina Mining Company, Xxxxxxx
Xxxx xx Xxxx, XXX Xx Xxxxxx, Xxxxx, XX., Xxxxxx at 4:00 p.m. local time or such
other time and place as the parties may agree upon in writing.
5. Deliveries at Closing. At the closing on the Closing Date:
(a) Xxxxxx shall deliver to Buyer such deeds, assignment.3 and other
instruments of sale, conveyance, assignment and trar.sfer as are sufficient in
the opinion of Buyer and its counsel to vest In Buyer and Its successors or
assigns the absolute, legal and equitable titlea to all of the Acquired
Assets.
(b) Buyer shall deliver to Seller stock certificates representing four
million
five hundred thousand (4,500,000) shares of Buyers Common Stock.
6. Representations and Warranties of Seller. Seller hereby represents and
warrants to Buyer that:
(a) Seller is a limited partnership duty organized, validly existing and
In
good standing under the laws of the Country of Brazil. Seller has the
requisite
power and authority to own and operate its assets, properties and business
and
to carry on Its business as now conducted.
(b) The execution and delivery of this Agreement and the consummation of
the
transactions contemplated hereby have been duty authorized and approved by
the
owners of the Seller, and, when executed by the authorized representative of
Seller, this Agreement will constitute a legal, valid and binding agreement
of
Seller, except as such enforcement may be limited by bankruptcy, Insolvency
or
similar laws affecting creditors' rights generally or by the scope of
equitable remedies which may be available.
(c) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby will not result in a breach of the terms
and conditions of, or result In a loss of rights under, or result In the
creation of any lien, charge or encumbrance upon, any of the Acquired Assets
pursuant to (i) Seller's Articles of Incorporation, by laws or other charter
documents, (ii) any franchise, mortgage, deed of trust. ease, license, permit,
agreement, instrument of undertaking to which Seller is a party or by which It
or any of Its properties are bound, or (ii) any statute, rule, regulation,
order, judgment, award or decree.
(d) Seller has good and marketable title to the Property and the Acquired
Assets, free and clear of any liens or encumbrances, and has the full right,
power and authority to convey the Acquired Assets to the Buyer free and clear
of all such liens, claims and encumbrances, other than the 30% carried
working
Interest In the Property being retained by the Seller and its affiliates.
(e) Seller is not subject to any material liability, absolute or
contingent, which has not been disclosed to the Buyer in writing.
(f) To the best of Seller's knowledge, there is no suit, claim, action or
proceeding now pending or threatened before any court, administrative or
regulatory agency or any basis for such a claim which may result in any
judgment, order, decree, liability or other determination which could have an
adverse effect, financial or otherwise, upon the Acquired Assets. No such
judgment, order or decree has been entered, which has or could have such
effect.
(g) To the best of Seller's knowledge, Seller has all licenses and
permits necessary to conduct mining operations on the Property. No violations
are or have been recorded In respect of such licenses or permits and ro
proceeding is pending or threatened which could result In the revocation or
limitation of any
of such licenses or permits.
(h) Except as set forth in Exhibit A to this Agreement, no consent is
necessary to effect the transfer to Buyer of the Acquired Assets and,
upon the consummation of the transactions contemplated hereby, Buyer
will be entitled to use the Acquired Assets to the full extent that Seller
used the same immediately prior to the transfer of the Assets.
7. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller that:
(a) Buyer is a corporation duly organized, validly existing and In good
standing under the laws of the State of Nevada, and has full corporate power
and authority to enter into this Agreement and to carry cut Its obligations
hereunder.
(b) Buyer has taken all requisite corporate action to authorize and
approve the execution of delivery of this Agreement and the consummation of
the transactions contemplated hereby, and this Agreement constitutes a legal,
valid and binding agreement of Buyer.
(c The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby will not violate the Certificate of
Incorporation or the Bylaws of Buyer or any agreement, contract or other
instrument to which Buyer Is a party, or any statute, rule, regulation,
order, judgment, award or decree.
(d) The authorized capital stock of Buyer consists of 25,000,000 shares of
Common Stock, per value $-001 per share, of which 1,600,000 shares
are issued and outstanding on the date of this Agreement. All
outstanding shares of stock of Buyer are duly authorized, validly issued,
fully paid and nonassessable. There are no shares of c,3pital stock or
other securities of the Buyer outstanding except for the outstanding
shares of Common Stock described In this Section 7(d), and there are no
outstanding options, warrants or rights to purchase any securities of the
Buyer.
(e) The Shares, when issued, sold and delivered in accordance with the
terms of this Agreement, will be duly and validly Issued, fully paid and
nonessessable.
(f) Buyer is not a Party to any contract, agreement, lease, license,
arrangement, or commitment.
(g) There is no litigation, proceeding or investigation pending or, to
the
knowledge of Buyer, threatened against Buyer affecting any of its assets or
properties that could result, either In any case or In the aggregate, In any
material adverse change in the assets, properties or business of Buyer, or
that could Impair the validity of this Agreement or any act:on to be taken
pursuant to this Agreement.
(h) Neither this Agreement nor any exhibit to this Agreement nor any
written statement or certificate furnished by Buyer n connection with this
Agreement contains an untrue statement of a material fact or omits to state a
fact that is necessary in order to make the statements contained herein and
therein, in light of the circumstances under which they are made, not
materially misleading.
8. Conditions Precedent to the Obligations of Buyer. All obligations of Buyer
under this Agreement are, at its option, subject to fulfillment of each of
the following conditions prior to or at the closing:
(a) All material representations and warranties of Seller made in this
Agreement or In any exhibit hereto delivered by Seller shall be true and
correct as of the Closing Date with the same force and effect as if made on
and as of that date.
(b) Seller shall have performed and complied with all agreements,
covenants and conditions required by this Agreement to be performed or
complied with by Seller prior to or at the Closing Date.
9. Conditions Precedent to the Obligations of Seller. All obligations of
Seller under this Agreement are, at its option, subject to fulfillment of each
of the following conditions prior to or at the closing:
(a) All material representations and warranties of Buyer made In this
Agreement or In any exhibit hereto delivered by Buyer shall be true and
correct on and as of the Closing Date with the same force and effect as If
made on and
as of that date.
(b) Buyer shall have performed and Complied with all agreements and
conditions required by this Agreement to be performed or complied with by
Buyer prior to or at the Closing Date.
10. Eurther Assurances. Following the closing, Seller agrees to take- such
actions and execute, acknowledge and deliver to Buyer such further
Instruments of assignment, conveyance and transfer and take any other action
as Buyer may reasonably request in order to more effectively convey, sell,
transfer and assign to Buyer any of the Acquired Assets, to confirm the title
cf Buyer thereto, and to assist Buyer In exercising rights with respect to
the
Acquired Assets.
11. Survival of Representations and Warranties. All representations and
warranties made by each of the parties hereto shall survive the closing for a
period of three years after the Closing Date.
12. Indemnification.
(a) Seller agrees to Indemnify, defend and hold harmless Buyer against
any and all claims, demands, losses, costs, expenses, obligations,
liabilities
and damages, Including Interest, penalties and reasonable attorneys' fees,
Incurred by Buyer arising, resulting from, or relating to any breach of, or
failure by Seller to perform, any of Its representations, warranties.
covenants or agreements In this Agreement or in any exhibit or other document
furnished or to be furnished or to be furnished by Seller under this
Agreement.
(b) Buyer agrees to indemnify, defend and hold harmless Seller against
any and all claims, demands, losses, costs, expenses, obligations,
liabilities
and damages, Including interest, penalties and reasonable i9ttorneye fees,
Incurred by Seller arising, resulting from or relating to any breach of, or
failure by Buyer to perform, any of its representations, warranties, covenants
or agreements In this Agreement.
13. General Provisions.
13.1 Construction. This Agreement shall be construed and enforced in
accordance with the laws of the State of Nevada.
13.2 Notices. All notification, requests, demands and other communications
contemplated under this Agreement shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United
States
express, certified or registered in mail, postage prepaid, addressed to the
following parties, their successors In interest or their permitted assignees
at
the following addresses, or at such other addressees as the parties may
designate by written notice In the manner aforesaid:
Seller:
Mineracao Juina Mirim Ltda.
Av. Novo xx Xxxx I PCA Da Biblio
Juina, MT, Brazil 78320-000
Attention: Xxxxxx Xxxxxxxx Xx Xxxxx, Director
Buyer:
Juina Mining Company, Inc.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attention: Xxxx X. Xxxxxxx, President
13.3 Assignment. This Agreement shall not be assignable by any party
without
prior written consent of the other parties, Nothing contained In this
Agreement,
express or implied, is intended to confer upon any person or entity other
than
the parties to this Agreement and their successors and assigns, any rights or
remedies under this Agreement unless expressly so stated to the contrary.
13.4 Remedies. Except as otherwise expressly provided herein, none of the
remedies set forth in this Agreement are intended to be exclusive, and each
party shall have all other remedies now or hereafter existing at law, In
equity,
by statute or otherwise. The election of any one or more remedies shall not
constitute a waiver of the right to pursue other available remedies.
13.5 Attorney's Fees and Litigation Costs. If an legal action is brought
for
the enforcement of this Agreement or because of an alleged dispute, breach,
default or misrepresentation in connection with any of this Agreement,
-the prevailing party shall be entitled to recover Its reasonable attorneys'
fees and other costs incurred in such proceeding or other legal action, in
addition to any other relief to which it may be entitled, Including but not
limited to post-judgment costs.
13.6 Entire Agreement. This Agreement and the exhibits and other matter
hereof,
and supersede all prior agreements, understandings, discussions, negotiations
and commitments of any kind. This Agreement may not be amended or
supplemented,
nor may any rights hereunder be waived, except In a writing signed by each of
the parties affected thereby.
13.7 Section Headings. The section headings In this Agreement are included
for convenience only, are not a part of this Agreement and shall not be used
in
construing it.
13.8 Severability. In the event that any provision or any part of this
Agreement is held to be illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall not affect the validity or
enforceability
of any other provision or part of this Agreement.
13.9 Counterparts. This Agreement may be executed In one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above mentioned.
BUYER:
JUINA MINING COMPANY, INC.
A Nevada corporation
By: /s/ Noael X. Xxxxxxx
Xxxx X. Xxxxxxx, President
SELLER:
MINERACAO JUINA MIRIM LTDA., a Brazilian company
A Brazilian company
By: /s/ Xxxxxx Xxxxxxxx Xx Xxxxx
Xxxxxx Xxxxxxxx Xx Xxxxx, Director
WITNESS:
By: /s/ Xxxxxx Xxxxx Xxxxx
Xxxxxx Xxxxx Xxxxx, an Individual
By:/s/ Adilso Krefla
Xxxxxx Xxxxxx, an Individual
EXHIBIT A
LIST OF ACQUIRED ASSETS OF
MINERACAO JUINA MIRIM LTDA
Prop" 1000 detailed In research authorization request file #866-787/85 to the
Brazilian National Department of Mineral Production, transferred and assigned
on the 26th of February. 1996.
