SHARE EXCHANGE AGREEMENT
SHARE
EXCHANGE AGREEMENT
THIS
AGREEMENT MADE EFFECTIVE AS OF THE 22nd day of January 2007 (the "Effective
Date"), EXECUTED ON THE ___ day of January 2007.
BETWEEN:
STRATEGIC
MINERALS INC.
a
company incorporated under the laws of State of Nevada having a place of
business at 0000-000
Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0 Facsimile # 604.633.0342,
and
THE
PARTIES LISTED AS AGI SHAREHOLDERS
ON
SCHEDULE "A" OF THIS AGREEMENT
(individually
a "AGI Shareholder" and collectively the "AGI Shareholders")
AND:
AULTRA
GOLD INC.,
(formerly Dutch Mining (Canada) Ltd.) a company incorporated under the laws
of
the Province of British Columbia having a place of business at 0000-000
Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0 Facsimile #
604.633.0342;
("AGI")
AND:
AULTRA
GOLD INC. (formerly called NEW
WORLD ENTERTAINMENT CORP.) ,
a
company incorporated under the laws of the State of Nevada and having an address
for the purposes of this Agreement at 510 - 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx Xxxxxxxx X0X 0X0;
("AGDI")
WHEREAS:
A. The
authorized share capital of AGI consists of no maximum common shares without
par
value, and no other classes, of which 24,496,668
common
shares (the "AGI Shares") are issued and outstanding;
B. The
AGI
Shareholders are the registered and beneficial owners in the AGI Shares as
set
out on Schedule "A";
C. The
AGI
Shareholders have agreed to transfer their AGI Shares to AGDI and AGDI has
agreed to acquire the AGI Shares from the AGI Shareholders in exchange for
the
issuance of 24,496,668
common
shares in AGDI (the “Shares”) upon a 1 for 1 basis and on the terms and
conditions set forth in this Agreement;
D. AGDI
further joins in the execution of this Agreement for the purpose of evidencing
its desire to acquire AGI and all of its right title and interests in certain
gold and other precious metals mining leasehold interests and for the purpose
of
making certain representations and warranties to and covenants and agreements
with the AGI Shareholders.
E. AGI
joins
in the execution of this Agreement for the purpose of making certain
representations and warranties to and covenants and agreements with
AGDI.
NOW
THEREFORE THIS AGREEMENT WITNESSES that in consideration of the covenants and
agreements herein contained, the parties hereto do covenant and agree (the
"Agreement") each with the other as follows:
ARTICLE
1
SALE
AND PURCHASE OF THE SHARES
1.1 Exchange
of the Shares.
Upon
the execution of this Agreement, subject to AGDI obtaining regulatory approval
satisfactory to AGI, and the terms and conditions herein set forth, on the
basis
of the representations, warranties and agreements herein contained, AGDI shall
issue and deliver the Shares to the AGI Shareholders to each of the AGI
Shareholders in the proportions set out on Schedule "A" hereto. The Company
hereby agrees to grant to the AGI Shareholders registration rights with respect
to the Shares as set forth in Schedule “B” attached hereto.
1.2 Instruments
of Conveyance and Transfer.
At the
Closing, AGDI shall deliver a certificate or certificates representing the
Shares to the AGI Shareholders, in form and substance satisfactory to the AGI
Shareholders ("Certificates"),
as
shall be effective to vest in the AGI Shareholders all right, title and interest
in and to all of the Shares.
1.3 Consideration
and Payment for the Shares .
In
consideration for the Shares, the AGI Shareholders shall transfer to AGDI their
AGI Shares ("Share
Exchange").
The
parties intend that this acquisition and exchange of shares is to be a “tax
free” exchange/transaction pursuant to Section 368(a)(1)(b) of the Internal
Revenue Code of the United States and S.85 of the Income Tax Act of
Canada.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF THE AGDI
AGDI
represents and warrants to the AGI Shareholders the following:
2.1 Transfer
of Title.
AGDI
shall transfer title in and to the Shares to the AGI Shareholders free and
clear
of all liens, security interests, pledges, encumbrances, charges, restrictions,
demands and claims, of any kind or nature whatsoever, whether direct or indirect
or contingent.
(a) Due
Execution
This
Agreement has been duly executed and delivered by the AGDI.
2
(b) Valid
Agreement
This
Agreement constitutes, and upon execution and delivery thereof by the AGDI,
will
constitute, a valid and binding agreement of the AGDI enforceable against the
AGDI in accordance with its respective terms.
(c) Authorization.
The
execution, delivery and performance by the AGDI of this Agreement and the
delivery by the AGDI of the Shares have been duly and validly authorized and
no
further consent or authorization of the AGDI, its Board of Directors, or its
stockholders is required.
(d) AGDI's
Title to Shares; No Liens or Preemptive Rights; Valid Issuance.
AGDI
have and at the Closing will have full and valid title and control of the
Shares; there will be no existing impediment or encumbrance to the sale and
transfer of such Shares to the AGI Shareholders; and on delivery to the AGI
Shareholders of the Shares, all of the Shares will be free and clear of all
taxes, liens, encumbrances, charges or assessments of any kind and shall not
be
subject to preemptive rights, tag-along rights, or similar rights of any of
the
stockholders of the Company. Such Shares will be legally and validly issued
in
material compliance with all applicable U.S. federal and state securities laws,
and will be fully paid and non-assessable shares of the Company’s common stock;
and the Shares have all been issued under duly authorized resolutions of the
Board of Directors of the Company. At the Closing, AGDI shall each deliver
to
the AGI Shareholders certificates representing the Shares subject to no liens,
security interests, pledges, encumbrances, charges, restrictions, demands or
claims in any other party whatsoever.
2.2 No
Governmental Action Required.
The
execution and delivery by the AGDI of this Agreement does not and will not,
and
the consummation of the transactions contemplated hereby will not, require
any
action by or in respect of, or filing with, any governmental body, agency or
governmental official, including but not limited to the Securities and Exchange
Commission ("Commission")
and
the National Association of Securities Dealers ("NASD"),
except such actions or filings that have been undertaken or made prior to the
date hereof and that will be in full force and effect (or as to which all
applicable waiting periods have expired) on and as of the date hereof or which
are not required to be filed on or prior to the date of Closing.
2.3 Compliance
with Applicable Law and Corporate Documents.
The
execution and delivery by the AGDI of this Agreement does not and will not
and,
the sale by the AGDI of the Shares does not and will not contravene or
constitute a default under or violation of (i) any provision of applicable
law
or regulation, (ii) the articles of incorporation or by-laws of the AGDI, or
(iii) any agreement, judgment, injunction, order, decree or other instrument
binding upon the AGDI or any its assets, or result in the creation or imposition
of any lien on any asset of the AGDI. The AGDI is in compliance with and
conforms to all statutes, laws, ordinances, rules, regulations, orders,
restrictions and all other legal requirements of any domestic or foreign
government or any instrumentality thereof having jurisdiction over the conduct
of their businesses or the ownership of their properties.
2.4 Due
Diligence Materials.
The
information heretofore furnished by the AGDI to the AGI Shareholders for
purposes of or in connection with this Agreement or any transaction contemplated
hereby does not, and all such information hereafter furnished by the AGDI to
the
AGI Shareholders will not (in each case taken together and on the date as of
which such information is furnished), contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances under which they are made,
not misleading.
3
2.5 Not
a
Voting Trust: No Proxies.
None of
the Shares are or will be subject to any voting trust or agreement. No person
holds or has the right to receive any proxy or similar instrument with respect
to the Shares. Except as provided in this Agreement, the AGDI is not a party
to
any agreement which offers or grants to any person the right to purchase or
acquire any of the Shares. There is no applicable local, state or federal law,
rule, regulation, or decree which would, as a result of the sale contemplated
by
this Agreement, impair, restrict or delay any voting rights with respect to
the
Shares.
2.6 Survival
of Representations.
The
representations and warranties herein by the AGDI will be true and correct
in
all material respects on and as of the Closing with the same force and effect
as
though said representations and warranties had been made on and as of the
Closing and will, except, provided herein, survive the Closing.
2.7 Adoption
of Company’s Representations.
The
AGDI adopts and remakes as their own each and every representation made by
the
Company in Article 4 below.
2.8 No
Solicitation.
No form
of general solicitation or general advertising was used by the AGDI or, to
the
best of their actual knowledge, any other person acting on behalf of the AGDI,
in connection with the offer and sale of the Shares. Neither the AGDI, nor,
to
their knowledge, any person acting on behalf of the AGDI, have, either directly
or indirectly, sold or offered for sale to any person (other than the AGI
Shareholders) any of the Shares, and the AGDI represent that they will not,
nor
will any person authorized to act on their behalf (except that the AGDI makes
no
representation as to the AGI Shareholders) sell or offer for sale any such
security to, or solicit any offers to buy any such security from, or otherwise
approach or negotiate in respect thereof with, any person or persons so as
thereby to cause the issuance or sale of any of the Shares to be in violation
of
any of the provisions of Section 5 of the Securities Exchange Act of 1934 or
any
other provision of law.
2.9 No
Liabilities.
Other
than as described in Article 3.9 attached hereto, the Company’s 10KSB filed on
March 24th,
2006
and the interim financial statements last filed in the 10QSB on November
28th,
2006.
There are no liabilities of the AGDI of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise, which could be
charged as a liability to the Company, and to the best knowledge of AGDI there
is no existing condition, situation or set of circumstances which could
reasonably be expected to result in such a liability.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the AGI Shareholders the
following:
3.1 Due
Organization.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada (a) with full power and authority to
own,
lease, use, and operate its properties and to carry on its business as and
where
now owned, leased, used, operated and conducted. The Company has no
subsidiaries. The Company is duly qualified to conduct business as a foreign
corporation and is in good standing in every jurisdiction in which the nature
of
the business conducted by it makes such qualification necessary, and (b) all
actions taken by the current directors and stockholders of the Company have
been
valid and in accordance with the laws of the State of Nevada.
4
3.2
(a)
Company
Authority.
The
Company has all requisite corporate power and authority to enter into and
perform this Agreement.
(b) Due
Authorization.
The
execution, delivery and performance by the Company of this Agreement has been
duly and validly authorized and no further consent or authorization of the
Company, its Board of Directors or its stockholders is required.
(c) Valid
Execution.
This
Agreement has been duly executed and delivered by the Company.
(d) Binding
Agreement.
This
Agreement constitutes, and upon execution and delivery thereof by the Company,
will constitute, a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(e) No
Violation of Corporate Documents or Agreements.
The
execution and delivery of this Agreement by the Company and the performance
by
the Company of its obligations hereunder will not cause, constitute, or conflict
with or result in (i) any breach or violation or any of the provisions of or
constitute a default under any license, indenture, mortgage, charter,
instrument, articles of incorporation, bylaw, or other agreement or instrument
to which the Company or its stockholders are a party, or by which they may
be
bound, nor will any consents or authorizations of any party other than those
hereto by required, (ii) an event that would cause the Company to be liable
to
any party, or (iii) an event that would result in the creation or imposition
or
any lien, charge or encumbrance on any asset of the Company or on the securities
of the Company to be acquired by the AGI Shareholders.
3.3 Authorized
Capital, No Preemptive Rights, No Liens; Anti-Dilution.
As of
the date hereof, the authorized capital of the Company is 150,000,000 shares
of
Common Stock $0.001 par value. The issued and outstanding capital stock of
the
Company as of November 14, 2006, was 82,233,333 common shares. All of the shares
of capital stock are, duly authorized, validly issued, fully paid and
non-assessable. No shares of capital stock of the Company are subject to
preemptive rights or similar rights of the stockholders of the Company or any
liens or encumbrances imposed through the actions or failure to act of the
Company, or otherwise. As of the date hereof and at Closing, (i) there are
no
outstanding options, warrants, convertible securities, scrip, rights to
subscribe for, puts, calls, rights of first refusal, tag-along agreements,
nor
any other agreements, understandings, claims or other commitments or rights
of
any character whatsoever relating to, or securities or rights convertible into
or exchangeable for any shares of capital stock of the Company, or arrangements
by which the Company is or may become bound to issue additional shares of
capital stock of the Company, and (ii) there are no agreements or arrangements
under which the Company is obligated to register the sale of any of its
securities under the Securities Act and (iii) there are no anti-dilution or
price adjustment provisions contained in any security issued by the Company
(or
in the Company’s articles of incorporation or by-laws or in any agreement
providing rights to security holders) that will be triggered by the transactions
contemplated by this Agreement. The Company has furnished to the AGI
Shareholders true and correct copies of the Company’s articles of incorporation
and by-laws.
5
3.4 There
are
no commitments, plans or arrangements of any kind whatsoever to issue shares
of
AGDI, nor were there any outstanding common shares in the capital stock of
AGDI
of any kind whatsoever calling for the issuance of any of the unissued shares
of
AGDI save and except for the following terminated transactions:
(a) Share
Exchange Agreement terminated with Liverpoole Inc. On May 12, 2006 AGDI entered
into a share exchange agreement with Liverpoole Inc., a privately-owned
corporation organized under the laws of Antigua, for the acquisition of all
of
the issued and outstanding shares of Liverpoole in exchange for 25,000,000
shares of the Company. In connection therewith, in order to secure the right
to
enter into such agreement with Liverpoole, the Company entered into an agreement
with World Mobile Network Corp., a publicly-held corporation, pursuant to which
World Mobile Network Corp. agreed to assign its exclusive right to acquire
Liverpoole to the Company in exchange for 20,000,000 shares of the Company.
The
parties to these agreements have terminated all rights and obligations under
certain Release Agreements dated effective December 8th, 2006.
(b) Loan
Agreement On May 3, 2006, AGDI entered into a $3,250,000 secured Loan Agreement
(the "Loan Agreement") with 555 Holdings LLC, a Nevada limited liability
company, and Global Developments Inc., a Nevada company (collectively the
"Lenders"), pursuant to which Loan Agreement the Company issued $3,250,000
in
aggregate principal amount of promissory notes (collectively the "Notes") to
the
Lenders. In lieu of the interest on the Notes, the Company agreed to
simultaneously with the issuance of the Notes to issue three and one third
shares of common stock, $0.001 par value per share (the "Common Stock"), of
restricted stock of the Company for every dollar loaned by the Lenders,
amounting to 10,833,333 shares of Common Stock (the "Shares"). The issuance
of
the Note was exempt from registration requirements of the Securities Act of
1933
(the "Securities Act") pursuant to Section 4(2) of such Securities Act and/or
Regulation D promulgated thereunder based upon the representations of the
Investor that it is an "accredited investor" (as defined under Rule 501 of
Regulation D) and that it was purchasing such securities without a present
view
toward a distribution of the securities. The parties to these agreements have
terminated all rights and obligations as they related to AGDI under certain
Release Agreements dated effective December 8th, 2006.
3.5 No
Governmental Action Required.
The
execution and delivery by the Company of this Agreement does not and will not,
and the consummation of the transactions contemplated hereby will not, require
any action by or in respect of, or filing with, any governmental body, agency
or
governmental official, including but not limited to, the Commission and the
NASD, except such actions or filings that have been undertaken or made prior
to
the date hereof and that will be in full force and effect (or as to which all
applicable waiting periods have expired) on and as of the date hereof or which
are not required to be filed on or prior to the Closing.
6
3.6 Compliance
with Applicable Law and Corporate Documents.
The
execution and delivery by the Company of this Agreement does not and will not
contravene or constitute a default under or violation of (i) any provision
of
applicable law or regulation, (ii) the Company’s articles of incorporation or
bylaws, or (iii) any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or any its assets, or result in the creation
or imposition of any lien on any asset of the Company. The Company is in
compliance with and conforms to all statutes, laws, ordinances, rules,
regulations, orders, restrictions and all other legal requirements of any
domestic or foreign government or any instrumentality thereof having
jurisdiction over the conduct of its businesses or the ownership of its
properties.
3.7 SEC
Representations.
Through
the date hereof, the Company has filed all forms, reports and documents with
the
Commission required to be filed by it ("SEC Reports"). The Company has delivered
and/or made available to the AGI Shareholders true and complete copies of the
required SEC Reports. Such SEC Reports, at the time filed, complied in all
material respects with the requirements of the federal and state securities
laws
and the rules and regulations of the Commission thereunder applicable to such
SEC Reports. None of the SEC Reports, including without limitation, any
financial statements or schedules included therein, contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements made, in light of the circumstances under which
they were made, not misleading.
3.8 Financial
Statements.
(a) The
AGI Shareholders has received a copy of the audited financial statements of
the
Company for the fiscal year ended March 31, 2006 ("Audited Financial
Statements"), and the related statements of income and retained earnings for
the
period then ended. The Audited Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently followed
by the Company throughout the periods indicated. Such financial statements
fairly present the financial condition of the Company at the dates indicated
and
its results of their operations and cash flows for the periods then ended and,
except as indicated therein, reflect all claims against, debts and liabilities
of the Company, fixed or contingent, and of whatever nature. Since September
30,
2006 (the "Balance Sheet Date"), there has been no material adverse change
in
the assets or liabilities, or in the business or condition, financial or
otherwise, or in the results of operations or prospects, of the Company, whether
as a result of any legislative or regulatory change, revocation of any license
or rights to do business, fire, explosion, accident, casualty, labor trouble,
flood, drought, riot, storm, condemnation, act of God, public force or otherwise
and no material adverse change in the assets or liabilities, or in the business
or condition, financial or otherwise, or in the results of operation or
prospects, of the Company except in the ordinary course of
business.
3.9 No
Litigation.
The
Company is not a party to any suit, action, arbitration, or legal,
administrative, or other proceeding, or pending governmental investigation.
The
Company is not subject to or in default with respect to any order, writ,
injunction, or decree of any federal, state, local, or foreign court,
department, agency, or instrumentality.
3.10 No
Taxes.
To the
best of the Company’s knowledge, it is not liable for any income, sales,
withholding, real or personal property taxes to any governmental agencies
whatsoever. All United States federal, state, county, municipality local or
foreign income tax returns and all other material tax returns (including foreign
tax returns) which are required to be filed by or on behalf of the Company
have
been or will be filed as of the Closing Date and all material taxes due pursuant
to such returns or pursuant to any assessment received by the Company have
been
or will be paid as of the Closing Date, except those being disputed in good
faith and for which adequate reserves have been established. The charges,
accruals and reserves on the books of the Company in respect of taxes or other
governmental charges have been established in accordance with GAAP.
7
3.11 Material
Agreements(a)
Other
than as fully described and previously disclosed in the Company’s Form 10-SB,
10-K and 10-Q filings, the Company is not currently carrying on any business
and
is not a party to any contract, agreement, lease or order which would subject
it
to any performance or business obligations or restrictions in the future after
the closing of the transactions contemplated by this Agreement.
(b) The
Company has no employment contracts or agreements with any of its officers,
directors, or with any consultants, employees or other such
parties.
(c) The
Company has no stockholder contracts or agreements.
(d) The
Company is not in default under any contract or any other document.
(e) The
Company has no written or oral contracts with any third party except with its
transfer agent, Signature Stock Transfer, Inc.
(f) The
Company has no outstanding powers of attorney and no obligations concerning
the
performance of the AGDI concerning this Agreement.
(g) The
Company has all material Permits ("Permits" means all licenses, franchises,
grants, authorizations, permits, easements, variances, exemptions, consents,
certificates, orders and approvals necessary to own, lease and operate the
properties, of, and to carry on the business of the Company); (ii) all such
Permits are in full force and effect, and the Company has fulfilled and
performed all material obligations with respect to such Permits; (iii) no event
has occurred which allows, or after notice or lapse of time would allow,
revocation or termination by the issuer thereof or which results in any other
material impairment of the rights of the holder of any such Permit, and (iv)
the
Company has no reason to believe that any governmental body or agency is
considering limiting, suspending or revoking any such Permit.
(h) Neither
the Company nor, to the Company’s knowledge, any employee or agent of the
Company has made any payments of funds of the Company, or received or retained
any funds, in each case in violation of any law, rule or regulation or of a
character required to be disclosed by the Company in any of the SEC
Reports.
(i) There
are
no outstanding judgments or UCC financing instruments or UCC Securities
Interests filed against the Company or any of its properties.
(j) The
Company has no debt, loan, or obligations of any kind, to any of its directors,
officers, stockholders, or employees, which will not be satisfied at the
Closing.
8
(k) The
Company does not have and will not have any assets at the time of Closing other
than as disclosed in the Company’s Form 10-SB and 10-K’s Audited Financial
Statements. The Company does not own any real estate or any interests in real
estate. The Company does not own any patents, copyrights, or trademarks other
than as disclosed in the Company’s 10-K. The Company does not license the
intellectual property of others nor owe fees or royalties on the
same.
3.12 No
Liabilities.
To the
best of its knowledge, there are no liabilities of the Company of any kind
whatsoever, whether accrued, contingent, absolute, determined, determinable
or
otherwise, and there is no existing condition, situation or set of circumstances
that could reasonably be expected to result in such a liability. The Company
does not have any debt, liability, or obligation of any nature, whether accrued,
absolute, contingent, or otherwise, and whether due or to become due, that
is
not reflected on the Company’s financial statements.
3.13 OTC
Listing.
The
Company is currently re-establishing its listing on the OTC Bulletin Board
and
presently trades under the symbol AGDI.
3.14 Compliance
with Law.
To the
best of its knowledge, the Company has complied with, and is not in violation
of
any provision of laws or regulations of federal, state or local government
authorities and agencies. There are no pending or threatened proceedings against
the Company by any federal, state or local government, or any department, board,
agency or other body thereof.
3.15 Corporate
Documents Effective.
The
articles of incorporation, and the bylaws of the Company, as provided to the
AGI
Shareholders are, or will at Closing be, in full force and effect and all
actions of the Board of Directors or stockholders required to accomplish same
have, or will at Closing have been, taken.
3.16 No
Stockholder Approval Required.
The
acquisition of the Shares by the AGI Shareholders from AGDI does not require
the
approval of the stockholders of the Company under the Nevada General Corporate
Law ("NGCL"), the Company's articles of incorporation or bylaws, or any other
requirement of law or, if stockholder approval is required it has or will,
prior
to the Closing, be properly obtained in accordance with the requirements of
the
Company’s articles of incorporation and by-laws and the NGCL.
3.17 No
Dissenters’ Rights.
The
acquisition of the Shares by the AGI Shareholders from AGDI will not give rise
to any dissenting stockholders' rights under the NGCL, the Company's articles
of
incorporation or bylaws, or otherwise.
3.18 Not
Subject to Voting Trust.
None of
the Shares are or will be subject to any voting trust or agreement. No person
holds or has the right to receive any proxy or similar instrument with respect
to such Shares. The Company is not a party to any agreement that offers or
grants to any person the right to purchase or acquire any of the securities
to
be issued pursuant to this Agreement. There is no applicable local, state or
federal law, rule, regulation, or decree which would, as a result of the
transfer of the Shares to the AGI Shareholders, impair, restrict or delay any
voting rights with respect to the Shares.
9
3.19 Prior
Offerings.
All
issuances by the Company of shares of common stock in past transactions have
been legally and validly effected, and all of such shares of common stock are
fully paid and non-assessable. All of the offerings of the Company's common
stock were conducted in strict accordance with the requirements of Regulation
S,
as applicable, in full compliance with the requirements of the Securities
Exchange Acts of 1933 and 1934, as applicable, and in full compliance with
and
according to the requirements of the NGCL and the Company's articles of
incorporation and bylaws.
3.20 True
Representations.
The
information heretofore furnished by the Company to the AGI Shareholders for
purposes of or in connection with this Agreement or any transaction contemplated
hereby does not, and all such information hereafter furnished by the Company
to
the AGI Shareholders will not (in each case taken together and on the date
as of
which such information is furnished), contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances under which they are made,
not misleading.
3.21 Survival.
The
representations and warranties herein by the Company will be true and correct
in
all material respects on and as of the Closing with the same force and effect
as
though said representations and warranties had been made on and as of the
Closing Time and will, except, as otherwise provided herein, survive the Closing
for a period of two (2) years.
ARTICLE
4
REPRESENTATIONS
AND WARRANTIES OF AGI
Unless
specifically stated otherwise, the AGI represents and warrants that the
following are true and correct as of the date hereof and will be true and
correct through the Closing Date as if made on that date:
4.1 Agreement’s
Validity.
This
Agreement has been duly executed and delivered by AGI and the principal AGI
Shareholders, and shall be signed by the other participating AGI Shareholders
in
counterpart and constitutes legal, valid and binding obligations of the AGI
Shareholders, enforceable against the AGI Shareholders in accordance with its
respective terms, except as may be limited by applicable bankruptcy, insolvency
or similar laws affecting creditors’ rights generally or the availability of
equitable remedies.
4.2 Investment
Intent.
The AGI
Shareholders are acquiring the Shares for their own account for investment
and
not with a view to, or for sale or other disposition in connection with, any
distribution of all or any part thereof, except (i) in an offering covered
by a
registration statement filed with the Securities and Exchange Commission under
the Securities Act covering the Shares, or (ii) pursuant to an applicable
exemption under the Securities Act.
4.3 Restricted
Securities.
The AGI
Shareholders understand that the Shares have not been registered pursuant to
the
Securities Act or any applicable state securities laws that the Shares will
be
characterized as "restricted securities" under federal securities laws, and
that
under such laws and applicable regulations the Shares cannot be sold or
otherwise disposed of without registration under the Securities Act or an
exemption therefrom. In this connection, the AGI Shareholders represents that
it
is familiar with Rule 144 promulgated under the Securities Act, as currently
in
effect, and understands the resale limitations imposed thereby and by the
Securities Act. Stop transfer instructions may be issued to the transfer agent
for securities of the Company (or a notation may be made in the appropriate
records of the Company) in connection with the Shares.
10
4.4 Legend.
It is
agreed and understood by the AGI Shareholders that the certificates representing
the Shares shall each conspicuously set forth on the face or back thereof a
legend in substantially the following form:
THESE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THEY
MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR PURSUANT
TO AN EXEMPTION FROM REGISTRATION OR AN OPINION OF COUNSEL SATISFACTORY TO
THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
4.5 Disclosure
of Information.
The AGI
Shareholders acknowledge that they have been furnished with information
regarding the Company and its business, assets, results of operations, and
financial condition to allow the AGI Shareholders to make an informed decision
regarding an investment in the Shares. The AGI Shareholders represent that
they
have had an opportunity to ask questions of and receive answers from the Company
regarding the Company and its business, assets, results of operation, and
financial condition.
4.6 Disclosure
of AGI Information.
The AGI
Shareholders represent and warrant to AGDI that:
(a) AGI
was
and remains duly incorporated under the laws of the Province of British Columbia
and AGI:
(i) is
a
"private issuer" as that term is defined in the B.C. Securities Act (the
"Securities Act");
(ii) does
not
carry on business in any territory or province of Canada save and except for
maintaining its administrative offices as set forth in Vancouver, British
Columbia; and
(iii) is
in
good standing with respect to the filing of annual reports with the Registrar
of
Companies;
(b) AGI
has
no wholly-owned or controlled subsidiaries;
(c) the
authorized and issued share capital of AGI is as described in the recitals
to
this Agreement;
(d) the
AGI
Shares are validly issued and outstanding fully paid and non-assessable common
shares of AGI registered in the names of, and/or beneficially owned by, the
Vendor as set forth in the Schedule "A" to this Agreement, free and clear of
all
voting restrictions, trade restrictions, liens, charges or encumbrances of
any
kind whatsoever;
11
(e) except
for the AGI Shares, there are no shares, stock options, stock option plans,
employee share ownership plans, warrants, convertible notes or debentures,
agreements, documents, instruments or other writings of any kind whatsoever
which constitute a "security" (collectively, a "Security") of AGI as that term
is defined in the Securities Act and, except as is provided for by operation
of
this Agreement, there are no options, shareholder or other agreements, rights
of
first refusal, shotgun provisions, piggy-back rights or other rights of any
kind
whatsoever to acquire all or any of the AGI Shares or any interest in them
from
the Vendor or from any one of them, or which in any way encumber all or any
of
the AGI Shares;
(f) the
constating documents of AGI have not been altered since the incorporation of
AGI
or, if they have been, all such alterations are contained and reflected in
the
minute book of AGI;
(g) all
of
the material transactions of AGI have been properly recorded or filed in or
with
the books or records of AGI and the minute books of AGI contain all records
of
the meetings and proceedings of shareholders and directors of AGI since its
incorporation;
(h) AGI
is
the registered and beneficial owner of all of the properties and assets
(collectively the "Assets") listed on Schedule "C" to this Agreement, and such
Assets represent all of the property and assets of any kind whatsoever used
by
AGI and which are necessary or useful in the conduct of its
Business;
(i) AGI
has
the corporate power to own the Assets owned by it and to carry on the Business
carried on by it and to meet its obligations under this Agreement, and AGI
is
duly qualified to carry on business in all jurisdictions in which it carries
on
its Business;
(j) AGI
has
good and marketable title to the Assets free and clear of all liens, charges
and
encumbrances of any kind whatsoever;
(k) all
leases, sub-leases, tenancy or other agreements of any kind whatsoever
(collectively, the "Mineral Property Leases") pursuant to which AGI has secured
the Mineral Rights (collectively, the "Mineral Rights") it uses for the conduct
of its Business are in good standing in all respects and not in default in
any
respect, and such Mineral Rights are described on Schedule "C" and are in good
standing for the conduct of its Business;
(l) all
machinery and equipment of any kind whatsoever comprised in the Assets are
in
reasonable operating condition and in a state of reasonable maintenance and
repair taking into account their age and use;
(m) in
respect of both the hardware and software components of the information
management and
12
(n) the
audited financial statements of AGI for its fiscal years ended September 30th,
2006 (the "AGI Financial Statements"), a copy of which appear as Schedule "D"
to
this Agreement, are true and correct in every material respect and present
fairly and accurately the financial position and results of the operations
of
AGI for the periods then ended and the AGI Financial Statements have been
prepared in accordance with generally accepted accounting principles applied
on
a consistent basis;
(o) the
books
and records of AGI disclose all material financial transactions of AGI since
September 30th, and such transactions have been fairly and accurately recorded.
ARTICLE
5
CLOSING
AND DELIVERY OF DOCUMENTS
5.1 Closing.
The
Closing shall be held on Friday, December 15th,
2006
(the "Closing
Date").
The
Closing shall occur as a single integrated transaction, as follows.
(a) Delivery
by AGDI
| (i) |
AGDI
shall deliver to the AGI Shareholders such instruments, documents and
certificates as are required to be delivered by AGDI or its
representatives pursuant to the provisions of this Agreement.
|
| (ii) |
AGDI
shall deliver the Certificates as directed by the AGI
Shareholders.
|
(b) Delivery
by the AGI Shareholders
| (i) |
The
AGI Shareholders irrevocably directs AGI to deliver to AGDI the AGI
Shares
duly executed for transfer to AGDI.
|
| (ii) |
A
certificate executed by the AGI Shareholders dated effective the Closing
Date, certifying that the representations and warranties of the AGI
Shareholders contained in this Agreement are then true in all
respects.
|
13
ARTICLE
6
TERMINATION,
AMENDMENT AND WAIVER
6.1 Waiver.
Any
term, provision, covenant, representation, warranty or condition of this
Agreement may be waived, but only by a written instrument signed by the party
entitled to the benefits thereof. The failure or delay of any party at any
time
or times to require performance of any provision hereof or to exercise its
rights with respect to any provision hereof shall in no manner operate as a
waiver of or affect such party’s right at a later time to enforce the same. No
waiver by any party of any condition, or of the breach of any term, provision,
covenant, representation or warranty contained in this Agreement, in any one
or
more instances, shall be deemed to be or construed as a further or continuing
waiver of any such condition or breach or waiver of any other condition of
the
breach of any other term, provision, covenant, representation or warranty.
No
modification or amendment of this Agreement shall be valid and binding unless
it
be in writing and signed by all parties hereto.
6.2 Termination
by the AGI Shareholders.
Notwithstanding anything to the contrary herein, each of the individual AGI
Shareholders shall have the right, in their sole and absolute discretion, at
any
time prior to their proportional payment of the Share Exchange, to terminate
this Agreement, in which event, this Agreement shall be terminated and no party
shall have any further obligation to any other party.
ARTICLE
7
MISCELLANEOUS
7.1 Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding of the parties
hereto with respect to the transactions contemplated hereby, and supersedes
all
prior agreements, arrangements and understanding related to the subject matter
hereof. No understanding, promise, inducement, statement of intention,
representation, warranty, covenant or condition, written or oral, express or
implied, whether by statute or otherwise, has been made by any party hereto
which is not embodied in this Agreement or the written statement, certificates,
or other documents delivered pursuant hereto or in connection with the
transactions contemplated hereby, and no party hereto shall be bound by or
liable for any alleged understanding, promise, inducement, statement,
representation, warranty, covenant or condition not set forth.
7.2 Notices.
Any
notice or communications hereunder must be in writing and given by depositing
same in the United States mail addressed to the party to be notified, postage
prepaid and registered or certified mail with return receipt requested or by
delivering same in person. Such notices shall be deemed to have been received
on
the date on which it is hand delivered or on the third business day following
the date on which it is to be mailed. For purpose of giving notice, the
addresses of the parties shall be at the addresses first above provided, or
at
the addresses set forth for the shareholders of record on the corporate
securities registers as the case may be.
14
7.3 Governing
Law.
This
Agreement shall be governed in all respects, including validity, construction,
interpretation and effect, by the laws of the State of Nevada without regard
to
principles of conflicts of law). Each of the parties hereto agrees to submit
to
the exclusive jurisdiction of any federal or state court within Las Vegas,
with
respect to any claim or cause of action arising under or relating to this
Agreement. The parties agree that any service of process to be made hereunder
may be made by certified mail, return receipt requested, addressed to the party
at the address appearing in Section 10.2, together with a copy to be delivered
to such party’s attorneys via telecopier (if provided in Section 10.2). Such
service shall be deemed to be completed when mailed and sent and received by
telecopier. AGDI and the AGI Shareholders each waives any objection based on
forum
non conveniens.
Nothing
in this paragraph shall affect the right of AGDI or the AGI Shareholders to
serve legal process in any other manner permitted by law.
7.4 Counterparts.
This
Agreement may be executed by the parties hereto in separate counterparts each
of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
7.5 Waivers
and Amendments; Non-Contractual Remedies; Preservation of
Remedies.
This
Agreement may be amended, superseded, canceled, renewed, or extended, and the
terms hereof may be waived, only by a written instrument signed by authorized
representatives of the parties or, in the case of a waiver, by an authorized
representative of the party waiving compliance. No such written instrument
shall
be effective unless it expressly recites that it is intended to amend,
supersede, cancel, renew or extend this Agreement or to waive compliance with
one or more of the terms hereof, as the case may be. No delay on the part of
any
party in exercising any right, power or privilege shall hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any party of any such
right, power or privilege, or any single or partial exercise of any such right,
power of privilege, preclude any further exercise thereof or the exercise of
any
other right, power or privilege. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies that any party may
otherwise have at law or in equity. The rights and remedies of any party based
upon, arising out of or otherwise in respect of any inaccuracy in or breach
of
any representation, warranty, covenant or agreement contained in this Agreement
shall in no way be limited by the fact that the act, omission, occurrence or
other state of facts upon which any claim of any such inaccuracy or breach
is
based may also be the subject of any other representation, warranty, covenant
or
agreement contained in this Agreement (or in any other agreement between the
parties) as to which there is no inaccuracy or breach.
7.6 Binding
Effect; No Assignment, No Third-Party Rights.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. This Agreement is not
assignable without the prior written consent of each of the parties hereto
or by
operation of law.
7.7 Further
Assurances.
Each
party shall, at the request of the other party, at any time and from time to
time following the Closing promptly execute and deliver, or cause to be executed
and delivered, to such requesting party all such further instruments and take
all such further action as may be reasonably necessary or appropriate to carry
out the provisions and intents of this Agreement and of the instruments
delivered pursuant to this Agreement.
15
7.8 Severability
of Provisions.
If any
provision or any portion of any provision of this Agreement or the application
of any such provision or any portion thereof to any person or circumstance,
shall be held invalid or unenforceable, the remaining portion of such provision
and the remaining provisions of the Agreement, or the application of such
provision or portion of such provision is held invalid or unenforceable to
person or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and such provision or portion
of
any provision as shall have been held invalid or unenforceable shall be deemed
limited or modified to the extent necessary to make it valid and enforceable,
in
no event shall this Agreement be rendered void or unenforceable.
7.9 Exhibits
and Schedules.
All
exhibits annexed hereto, and all schedules referred to herein, are hereby
incorporated in and made a part of this Agreement as if set forth herein. Any
matter disclosed on any schedule referred to herein shall be deemed also to
have
been disclosed on any other applicable schedule referred to herein.
7.10 Captions.
All
section titles or captions contained in this Agreement or in any schedule or
exhibit annexed hereto or referred to herein, and the table of contents to
this
Agreement, are for convenience only, shall not be deemed a part of this
Agreement and shall not affect the meaning or interpretation of this Agreement.
All references herein to sections shall be deemed references to such parts
of
this Agreement, unless the context shall otherwise require.
7.11 Expenses.
Except
as otherwise expressly provided in this Agreement, whether or not the Closing
occurs, each party hereto shall pay its own expenses incidental to the
preparation of this Agreement, the carrying out of the provisions hereof and
the
consummation of the transactions contemplated.
7.12 Counterparts.
This
Agreement may be signed by fax and in counterpart, and each copy so signed
shall
be deemed to be an original, and all such counterparts together shall constitute
one and the same instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the
date
first written herein above.
|
SIGNED,
SEALED AND DELIVERED BY
STRATEGIC
MINERALS INC. per:
__________________________________________
Authorized
Signatory
Name
of Signatory:__________________________________
Title
of Signatory: ___________________________________
|
|
|
SIGNED,
SEALED AND DELIVERED BY
AULTRA
GOLD INC. (formerly called Dutch Mining (Canada) Inc.) per:
__________________________________________
Authorized
Signatory
Name
of Signatory: _________________________________
Title
of Signatory: __________________________________
|
|
|
SIGNED,
SEALED AND DELIVERED BY AULTRA GOLD INC. (formerly called
__________________________________________
Authorized
Signatory
Name
of Signatory: _________________________________
Title
of Signatory: __________________________________
|
16
SCHEDULE
"B"
CLOSING
CERTIFICATE AND
COUNTERPART
EXECUTION OF SHARE EXCHANGE
TO: New
World
Entertainment Corp. (the "Company")
This
confirms the undersigned wishes to exchange ____________ AGI Shares into an
equivalent number of common shares of the Company upon a 1 for 1 basis. The
shares, when issued, should be delivered to the following address:
Dated
this _____ day of ______________, 200__.
|
SIGNED,
SEALED & DELIVERED
by
the AGI Shareholder in the presence of:
____________________________________
Signature
of Witness
Name
of Witness: ___________________________
Address
of Witness: _________________________
____________________________________
Occupation
of Witness: _______________________
|
)
)
)
)
)
__________________________________________________
) Signature
of AGI Shareholder
)
)
)
)
)
)
)
)
)
|
17
SCHEDULE
"C"
MINING
LEASE AGREEMENT
