AGREEMENT
This is an Agreement between Beryllium International Corporation
("BIC" or "Purchaser") a Utah corporation, with offices at 0000 Xxxx
Xxx, Xxxx Xxxx Xxxx, Xxxx 00000 and XXXXXXXXXX-XXXXXX.XXX, INC.,
("WSRN" or "Seller"), a Florida Corporation, with offices at 0000 X.
Xxxxxxx Xxx., Xxxxx 000, X-0, Lighthouse Point, Florida.
WHEREAS, BIC is a publicly owned company that is in the business
of developing natural resources and other business opportunities, and
WHEREAS, WSRN is a privately held company that has developed a
process for assisting small cap public and private companies to access
the capital markets and investors through the use of the Internet and
through WSRN's private contacts; and
WHEREAS, BIC possesses a shareholder group, a 28-year operating
history as a public company and has unexercised warrants in effect;
WHEREAS, the parties believe that the acquisition of the assets
of Seller by Purchaser will be in the mutual best interest of the
parties and their shareholders.
1. INTENT. The parties intend that Purchaser acquire all the
specified assets and no liabilities of WSRN with Purchaser's
stock so that the shareholders will own the controlling
interest in Purchaser collectively, that the name will be
changed, that the domicile will be changed to Florida, that
the board of directors will be expended to five, that
Purchaser will name two directors out of five, that current
officers and directors will be acknowledged for past service,
that the authorized amount of common stock for Purchaser be
increased from 50,000,000 to 60,000,000 that those who assume
certain liabilities of the Purchaser will be incented to do
so, and other purposes consist therewith.
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Exhibit 99.1 1
2. DEFINITIONS.
"Acquired Assets" shall mean the assets of the Seller that
are acquired by the Purchaser pursuant to the terms hereof that
are identified in Schedule ("A") and all other assets of the
Seller, whether tangible or intangible (including contractual,
warrantee and other rights), the use of value of which is
inextricably linked to the assets so identified, or which relate
to or arise out of transactions of the Seller involving the
assets so identified.
"Agreement" shall mean this Agreement of Purchase and Sale
including all of its schedules and exhibits and all other
documents specifically referred to in this agreement that have
been or are to be delivered by a party to this Agreement to
another such party in connection with the Transaction as defined
herein under this Agreement, including all duly adopted
amendments, modifications and supplements to or of this Agreement
and such schedules, exhibits and other documents.
"Assumed Liabilities" shall mean the liabilities of the
Seller being assumed by the Purchaser pursuant to this Agreement
as specifically identified in Schedule ("B") to this Agreement
and no other liabilities of the Seller.
"Closing" shall mean the completion of the Transaction to
take place as described herein.
"Closing Date" shall mean the date on which the Closing
shall actually occur which shall be October 15th, 2000, unless
otherwise agreed by the parties but shall not in any event be
prior to satisfaction or waiver of the conditions of Closing set
forth herein.
"Closing Time" shall mean the time at which the Closing
shall actually occur. All events that are to occur at the
Closing time shall, for all purposes be deemed to occur
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Exhibit 99.1
simultaneously, except to the extent, if at all that a specific
order of occurrence is otherwise described.
"Consideration" shall mean the value of the property
interest that is exchanged by the parties for the mutual
interests being acquired and sold.
"Date of Reorganization" shall mean the date when the
transfer of assets has been completed, the stock of the Purchaser
has been issued to the Seller as consideration for the purchase
of the assets, the stock of the Purchaser/Reorganized Company has
been issued to the current directors of the Company for past
services, the stock options of the Purchaser/Reorganized Company
have been issued to Xxxx Xxxxx and R. Xxxxxx Xxxxx as
consideration for accepting the federal mining claims and
associated liabilities, and directors Dwyer, Houraney,
Nardangeli, Xxxxx, and Park assume their positions on the board
of the Reorganized Company.
"Exchange Act" shall mean the Exchange Act of 1933 as
amended to the date of the its relevant application to the
transactions contemplated under this Agreement.
"Purchaser" shall mean Beryllium International Corporation.
"Reorganized Company" shall mean Beryllium International
Corporation after it has concluded the Transactions described in
this Agreement and before the contemplated name change.
"Securities Act" shall mean the Securities Act of 1933, as
amended to the date of its application to the transactions
contemplated under this Agreement.
"Seller Corporation" shall mean XXXXXXXXXX-XXXXXX.XXX, INC.
3. The Transaction. On the Closing Date, and at the Closing Time
subject in all instances to each of the terms, conditions,
provisions and limitations contained in this Agreement. The
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Exhibit 99.1
Seller shall sell, transfer, convey and assign to the
Purchaser, by instruments satisfactory in form and substance
to the Purchaser and its Counsel all of the assets described
in the attached schedule. The Purchaser shall acquire from the
Seller, the Acquired Assets free of encumbrance and subject to
no liabilities. The Seller represents that the assets
included on Exhibit ('A" hereto are all the assets reasonably
necessary for the conduct of the Acquired Assets in the
ordinary course in the same manner as that in which such
business has been conducted in the immediate past. Including
without limitation all Proprietary Rights of the Seller so
used in the ordinary conduct of the Acquire Business and all
contract warranty, and other intangible rights relating to or
arising out of such Acquired Business. Neither the Purchaser
nor any of its Affiliates is assuming, becoming liable for,
agreeing to discharge in any manner, becoming in any way
responsible for any of the Liabilities of the Seller. Seller
represents that there are no liabilities associated with the
assets being transferred.
4. Manner of Payment. Payment of the Consideration by the
Purchaser shall be made in the form of two stock certificate
of the Purchaser. The first certificate shall be for
27,275,120 (twenty seven million two hundred seventy-five
thousand one hundred twenty) shares and shall not cause the
total outstanding shares to exceed 50,000,000 prior to the
amendment to the existing articles of incorporation. The
second certificate shall be for such sum as will equal 55% of
the outstanding shares of the Reorganized Company as the
Company exists after the articles of incorporation have been
amended to increase the authorized shares to 60,000,000.
Prior to the amendment to increase the authorized shares to
60,000,000 shares, the Purchaser shall issue 500,000 shares to
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Exhibit 99.1
Xxxxxxx X. Xxxxx, 500,000 to Xxxxxx X. Xxxx, and 500,000
shares to R. Xxxxxx Xxxxx for past services to the Purchaser,
190 shares reserved for Xxxx X. Xxxxx and 98,000 shares
reserved for R. Xxxxxx Xxxxx as consideration for releasing
their claims against the Corporation. Subsequent to the
closing, the board of directors shall, if required by law,
call a meeting of the shareholders to approve, among other
things, the increase in the authorized shares from 50,000,000
shares to 60,000,000 shares. The stated purpose of the
increase in the authorized shares from 50,000,000 to
60,000,000 shares shall be that the additional shares shall be
used to reserve 2,500,000 shares for warrant holders, reserve
700,000 shares to perform the terms of the employment
agreement with Xxxxxxx Xxxxx, reserve adequate shares to
perform the promises made in promissory notes to Xxxxxxx X.
Xxxxx, Xxxxxx X. Xxxx, and R. Xxxxxx Xxxxx, and reserve
adequate shares to perform options granted to Xxxxxxx X.
Xxxxx. The precise number of shares needed for these latter
purposes cannot be determined until a later date. The second
certificate to WSRI shall be in the sum of 5,224,880 (five
million two hundred twenty four thousand eight hundred eighty)
shares. There shall remain at that time a balance of
2,275,120 (two million two hundred seventy five thousand and
one hundred twenty) shares of which there shall be retained an
adequate reserve for the three promissory notes and the Xxxxx
compensation agreement. The value of such shares shall be
$.10 for the purposes of this transaction. All such shares
shall initially carry a restrictive legend pursuant to rule
144.
5. Closing. The Closing hereunder shall take place at the
offices of the respective offices of the Seller and the
Purchaser or at such other place as the Purchaser and the
Seller may agree upon, on the Closing Date.
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Exhibit 99.1
6. Representatives By Purchaser
A. It is a publicly held corporation that was organized
under the laws of Utah in 1972 principally as a natural
resource development company.
B. Its a public company delinquent in its financial filings
with a significant shareholder base and 2,500,000 (two
million five hundred thousand) unexercised warrants that
were issued in an S-1 offering in 1982.
C. Due to world beryllium market conditions and competition
it is unable to develop the beryllium asset. The
ownership and control of this asset has a current
negative value to the Seller.
D. It has liabilities consisting of $2,511.00 owed to the
auditors, $2,700 owed to the transfer agent, 500,000
shares of the Purchaser's stock owed to each of its three
officers and directors for past services for a total of
1,500,000 (one million five hundred thousand) shares,
reimbursements to officers and directors for a total of
$15,000 (fifteen thousand) or $5,000 (five thousand) each
for out-of-pocket expenses, and $288,000 in unpaid loans
from R. Xxxxxx Xxxxx and Xxxx Xxxxx.
E. It has entered into a conditional agreement with Xxxx
Xxxxx and R. Xxxxxx Xxxxx to accept options from the
Reorganized Company that would permit R. Xxxxxx Xxxxx to
acquire 98,000 (ninety-eight thousand) shares and Xxxx
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Exhibit 99.1
Xxxxx 190,000 (one-hundred ninety thousand) shares of
stock in the Reorganized Company at the value of $.01 per
share if the public trading value of the stock in the
Reorganized Company reaches no less than one dollar per
share within six months of the date of the Reorganization
Date. If the stock does not reach one dollar per share
within that time period then the Reorganized Company
shall make up the difference in value with the issuance
of additional shares so that the total value of the
shares will be no less than $98,000 for Xx. Xxxxx and
$190,000 for Xxx. Xxxxx. As consideration for such
options Xxxxx and Xxxx Xxxxx will accept the transfer of
the beryllium federal mining claims and the associated
liabilities as part of this Agreement.
F. It has entered into an agreement with the auditor, Xxxxx
Xxxxxx & Company to accept $2,511.00 in cash from WSRN
for all past due amounts owed to it. It has entered into
an agreement with the transfer agent, Fidelity Transfer
Company to accept $2,700.00 in cash from WSRN for all
past due amounts owed to it.
G. It is not a party to litigation or regulatory
disciplinary actions, has no judgments against it, and
has no belief that any claims are likely to be asserted
against it, provided that its debtors agree with the
terms of this Agreement.
H. It is solvent so long as Fidelity Transfer Company, Xxxxx
Xxxxxx & Company, Xxxx Xxxxx and R. Xxxxxx Xxxxx each
refrain from enforcing their claims. The Company
currently has oral and written "stand still" agreements
in effect with Xxxx Xxxxx and R. Xxxxxx Xxxxx so long as
the Company actively pursues and cooperates with
qualified suitors or joint venturers. Both Xxxxx and
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Exhibit 99.1
Xxxxx consider the negotiations with WSRN as being in
compliance with the terms.
I. It has obtained the necessary consents from the officers
and directors of the Company to enter into this
Agreement.
J. It is lawfully capable of performing all acts necessary
to perform the terms of this Agreement, including issuing
its shares in accordance with the terms of this Agreement
free of all liens or contractual restrictions or
limitations whatsoever when the obligations to third
parties are performed in accordance with this Agreement.
Such shares will not have been registered pursuant to the
Securities Act and applicable state laws.
K. It has no cash for operations.
L. Its officers and directors have not received adequate
remuneration for their services to the Purchaser since
1986.
M. It is in compliance with environmental laws and
regulations.
N. The liabilities and financial condition of the Company
are accurate when they reflect the obligations stated at
"E", "K", "L", and "M" above.
O. Its warrants have been extended through December 31,
2000.
P. Schedule ("D") attached hereto sets forth the Purchaser's
authorized issued and outstanding securities, as well as
its outstanding options and securities reserved for
issuance. There are no voting trusts, voting agreements,
proxies or other agreements, instruments or undertakings,
whether oral or in writing, between the Company and any
third party with respect to the voting of shares of
capital stock of the Purchaser.
/s/RM /s/MD
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Exhibit 99.1
Q. It has filed or will file all tax returns required to be
filed with any taxing authority in respect of all
relevant taxes. On an interim basis the Company filed
letters with the IRS instead of returns for 1998 and
1999. Such statements have not been responded to by the
IRS. No audit of its tax returns is pending or
threatened.
R. No broker or finder or investment banker is entitled to
any consideration for this Transaction.
S. It has obtained the agreement of its principal
shareholders consisting of Xxxxxxx Xxxxx, Xxxxxx X. Xxxx
and R. Xxxxxx Xxxxx to not sell for six months any of the
shares they have held prior to this Agreement. The
principals agree to restrict sale of shares obtained as
settlement pursuant to this Agreement for six months none
of them will sell more than 5,000 (five thousand) shares
each during any month. The principals agree not to
transfer, assign, and/or hypothecate their respective
shares for the first six months.
T. No other creditors except as set forth herein.
7. Representations By The Seller
A. It is a privately held Florida corporation in good
standing that was organized in 1999 for the primary
purpose of serving small cap companies and investors.
B. It has developed a presence on the World Wide Web at
xxxxxxxxxx-xxxxxx.xxx.
C. It has operated its private business pursuant to a
business plan to exploit a Web Site by exposing
subscribing public companies to the seller's data base of
securities brokers throughout the world, by exposing
private companies to shell companies, by providing
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Exhibit 99.1
consulting services to subscribers for a fee, and by
raising capital on behalf of contracting parties.
D. It will jointly develop with the board members of the
Purchaser a business plan for the Reorganized Company
that will include a plan intended to: (1) create
sufficient value in the Reorganized Company so as to
incent warrant holders to exercise their warrants at a
reasonable price; (2) qualify the Reorganized Company for
listing on the American Stock Exchange by December 31,
2000; (3) raise investment capital to facilitate the
Reorganized Company to expand its services capability and
increase its public acceptance; among other goals as
listed above.
E. Neither it nor its principals are party to litigation or
regulatory disciplinary actions, none of them has any
judgments pending, and none of them is aware of any
claims that are likely to be asserted against them.
F. It is current in its obligations to creditors and
regulatory filings.
G. It is solvent.
H. It has prospective cash investors who have expressed an
interest in investing capital in the Reorganized Company.
I. It has obtained the necessary consents from its officers,
directors or shareholders to enter into this Agreement.
J. This Agreement does not conflict with or breach any
article of its incorporation, bylaws, or applicable laws.
/s/RM /s/MD
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Exhibit 99.1
K. This Agreement does not conflict with or breach any
agreement with a third party, any order or judgment, any
law or regulation, and its enforcement will not result in
any loss of rights or privileges.
L. It is lawfully capable of performing all acts necessary
to perform the contemplated merger with the Seller.
M. The performance of the terms and intentions of this
Agreement will not violate any agreement or restriction
upon the Company.
N. It or its principals possess all licenses and permits
from all federal, state and local agencies that are
necessary to the conduct its proposed business
O. No broker or finder or investment banker is entitled to
any consideration for this Transaction.
P. It has filed all tax returns required to be filed with
any taxing authority in respect to all relevant taxes.
No audit of its tax returns is pending or threatened.
Q. There are no voting trusts, voting agreements, proxies or
other agreements, instruments or undertakings, whether
oral or in writing, between the Seller and third parties
with respect to the voting of shares of capital stock of
the Seller.
R. The liabilities and financial condition of the Company
were accurate as of the date indicated on such
statements. There has been no material change since the
date of the most recent financial statement. Schedule
("F") consists of the unaudited statement of assets and
liabilities arising from cash transactions of the Seller
as of July 31, 2000 and the related statements of income
/s/RM /s/MD
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Exhibit 99.1
and expense arising from cash transactions for the
periods then ended (collectively the "Financial
Statements"). The Financial Statements fairly represent
the financial position of the Seller as of such dates and
the results of its operations for the year and period
then ended. The Financial Statements were prepared on a
cash basis applied on a consistent basis with prior
periods. The books of account and other records of the
Seller, financial or otherwise are in all material
respects, complete and correct and are maintained in
accordance with good business and accounting practices.
S. The Seller shall deliver to the Purchaser within 60 days
of the date hereof, the audited balance sheet as of
September 30, 2000, and the related statements of
operations for the year and period then ended
(collectively the "Updated Financials") all fairly
reflecting the financial position of the Seller as of
such dates and the results of its operations for the year
and period then ended. The Updated Financials shall be
prepared at the Seller's sole expense.
T. All accounts receivable are bona fide and it has no basis
for believing that such accountants will not be collected
when due.
U. All representations or warranties by the Seller as stated
are true and correct. There is no fact, development or
threatened development (except for general economic
conditions affecting business generally) which the Seller
has not disclosed to the Purchaser in writing and which
materially adversely affects the business of the Seller.
8. COVENANTS BY PURCHASER
/s/RM /s/MD
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Exhibit 99.1
So long as the Seller is proceeding in good faith to
conclude the merger and so long as the Seller's
representations remain true and accurate, the Purchaser
will covenant that:
A. It will refrain from paying dividends, make extraordinary
distributions to shareholders, or pay any consideration
to the current officers of directors except as provided
for herein.
B. It will refrain from encumbering any material assets or
maligning any capital expenditures other than in the
ordinary course of business.
C. Provide Seller access to the books and records of the
Company under a Confidentiality Agreement and make such
books and records available to its counsel or
accountants.
D. Continue to perform all of its obligations.
E. Continue to enforce all rights against third parties.
F. Continue to assure creditors that the terms of this
Agreement will not prejudice their rights.
G. It will take all actions necessary to obtain such
approvals as are required by the Company's articles and
by-laws and as required by law.
H. It will select R. Xxxxxx Xxxxx and Xxxxxx X. Xxxx to
serve on the board of directors of the Reorganized
Company.
I. Xxxxxxx Xxxxx, R. Xxxxxx Xxxxx and Xxxxxx X. Xxxx shall
not sell, transfer, assign and/or hypothecate any of
their shares held prior to this Agreement for six months
from the date of this Agreement for any reason. Xxxxxxx
Xxxxx, R. Xxxxxx Xxxxx, and Xxxxxx X. Xxxx shall not sell
/s/RM /s/MD
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Exhibit 99.1
more than 5,000 (five thousand) shares each issued to
them as a result of this Agreement during any month for a
period of six months from the date of this Agreement.
Thereafter, their sales will be subject only to the
limitations imposed by applicable laws.
9. COVENANTS BY SELLER
So long as the Seller is proceeding in good faith to
conclude the merger and so long as the Seller's
representations remain true and accurate, the Purchaser
will covenant that:
A. It will refrain from paying dividends, make extraordinary
distributions to shareholders, or pay any consideration
to the current officers of directors except as provided
for herein.
B. It will refrain from encumbering any material assets or
maligning any capital expenditures other than in the
ordinary course of business.
C. Provide Purchaser access to the books and records of the
Company under a Confidentiality Agreement and make such
books and records available to its counsel or
accountants.
D. Continue to perform all of its obligations.
E. Continue to enforce all rights against third parties.
F. Continue to assure creditors that the terms of this
Agreement will not prejudice their rights.
G. It will take all actions necessary to obtain such
approvals as are required by the Company's articles and
by-laws and as required by law.
H. It will appoint Xxxxxxx Xxxxx, Xxxx Xxxxxxxx, R. Xxxxxx
Xxxxx, Xxxxxx X. Xxxx and Xxxxx Nardangeli to the
Reorganized Company's board of directors.
/s/RM /s/MD
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Exhibit 99.1
I. It intends to enter into an Employment Agreement with
Xxxxxx X. Xxxxx ("the Employment Agreement") in the form
attached hereto as Exhibit ("J") to serve as the
Purchaser's Chief Executive Officer and President.
J. It intends to enter into an Employment Agreement with
Xxxxx Nardangeli to serve as chief financial officer and
secretary of the Reorganized Company.
10. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE PURCHASER TO CLOSE
The obligation of the Purchaser to enter into and complete the
Closing is subject at the option of the Purchaser, to the fulfillment
on or prior to the Closing Date of the following conditions, any one
or more of which may be waived by the Purchaser in writing.
10.1 DUE DILIGENCE REVIEW. The Purchasers satisfactory completion of
its due diligence review of the Sellers' assets, properties, business,
operations, books, records and financial condition. Xx. Xxxxx and
other representatives and employees of the Seller have been available
to assist the Purchaser in conducting its due diligence review.
10.2 REPRESENTATIONS AND COVENANTS. The representations and warranties
of the Seller contained in the Agreement shall be true in all material
respects. The Seller shall have performed and complied in all material
respects with all covenants and agreement required by this Agreement
to be performed or complied with by the Seller on or prior to the
Closing Date.
10.3 GOVERNMENTAL PERMITS AND APPROVALS CORPORATE RESOLUTIONS. Any and
all permits and approvals from any governmental or regulatory body
required for the lawful consummation of the Closing shall have been
obtained. The Seller shall have delivered to the Purchaser resolutions
by Its Board of Directors. Certified by the Secretary of the Seller
authorizing the transactions contemplated by the Agreement.
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Exhibit 99.1
10.4 THIRD PARTY CONSENTS. All consents, permits and approvals from
parties to any contracts, loan agreements or other agreements with the
Seller which may be required in connection with the performance of the
Seller of its obligations under such contracts or other agreements
after the Closing Date shall have been obtained.
10.5 SATISFACTORY BUSINESS REVIEW. The Purchaser shall have in good
faith reasonably satisfied itself after receipt of the documents and
schedules of the Seller, and after the Purchaser and its
representatives have completed the review of the business of the
Seller contemplated by this Agreement. None at the information
revealed in or in the reasonable opinion of the Purchaser may result
in, a material adverse change in the assets, properties, business,
operations or condition (financial or otherwise) of the Seller.
10.6 LITIGATION. No action, suit or proceeding shall have been
instituted before any court or governmental and/or regulatory body, or
instituted or threatened by any governmental or regulatory body to
restrain, modify or prevent the carrying out of the transactions
contemplated hereby. Or to seek damages or a discovery order in
connection with such transaction, or which has or may have, in the
reasonable opinion of the Seller, a materially adverse effect or the
assets, properties, business, operations or condition (financial or
otherwise) of the Purchaser.
10.7 ASSET SALE AND RELEASE OF CERTAIN LIABILITIES. Seller
acknowledges that Purchaser currently owns certain assets commonly
known as the Beryllium federal mining claims, which existed prior to
and at the time of this Agreement. Purchaser is attempting to transfer
such assets to Xxxx Xxxxx and R. Xxxxxx Xxxxx for the purposes of
settling certain debts of Purchaser that also existed prior to the
time of this Agreement. Seller, Xx. Xxxxx, and or their assigns will
ensure that no party, other than Xxxx Xxxxx and R. Xxxxxx Xxxxx, and
or their designees receive proceeds from such sale or transfer. The
/s/RM /s/MD
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Exhibit 99.1
Seller, Xx. Xxxxx and/or their assigns will further use their best
efforts to assist Purchaser with signing additional documents to
consummate such sale or transfer, as Purchaser reasonably requires. In
consideration of this paragraph, Purchaser represents that upon
receipt of proceeds from such sale or transfer Xxxx Xxxxx and R.
Xxxxxx Xxxxx will release Purchaser of any, and all liabilities owed
to them by Purchaser that existed at the time of this Agreement.
Purchaser will obtain similar releases from Xxxxxx X. Xxxxx. There are
no other liabilities or creditors.
11. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE SELLER TO CLOSE
The Obligation of the Seller to enter into and complete the
Closing is subject at the option of the Seller, to the fulfillment on
or prior to the Closing Date of the following conditions, anyone or
more of which may be waived by the Seller in writing.
11.1 DUE DILIGENCE REVIEW. The Sellers satisfactory completion of its
due diligence review of the Purchasers' assets, properties, business,
operations, books, records and financial condition. Xx. Xxxxx and
other representatives and employees of the Purchaser have been
available to assist the Seller in conducting its due diligence review.
11.2 REPRESENTATIONS AND COVENANTS. The representations and warranties
of the Purchaser contained in the Agreement shall be true in all
material respects. The Purchaser shall have performed and complied in
all material respects; with all covenants and agreement required by
this Agreement to be performed or complied with by the Seller on or
prior to the Closing.
11.3 GOVERNMENTAL PERMITS AND APPROVALS. Corporate Resolutions. Any
and all permits and approvals from any governmental or regulatory body
required for the lawful consummation of the Closing shall have been
/s/RM /s/MD
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Exhibit 99.1
obtained. The Purchaser shall have delivered to the Seller resolutions
by its Board of Directors. Certified by the Secretary of the Purchaser
authorizing the transactions contemplated by the Agreement.
11.4 THIRD PARTY CONSENTS. All consents, permits and approvals from
parties to any contracts, loan agreements or other agreements with the
Purchaser which may be required in connection with the performance of
the Purchaser of its obligations under such contracts or other
agreements after the Closing Date shall have been obtained.
11.5 SATISFACTORY BUSINESS REVIEW. The Seller shall have in good faith
reasonably satisfied itself, after receipt of the documents and
schedules of the Purchaser, and after the Seller and its
representatives have completed the review of the business of the
Purchaser contemplated by this Agreement, none of the information
revealed in, or in the reasonable opinion of the Purchaser may result
in, a material adverse change in tile assets, properties, business,
operations or condition (financial or otherwise) of the Purchaser.
11.6 LITIGATION. No action, suit or proceeding shall have been
instituted before any court or governmental or regulatory body. Or
instituted or threatened by any governmental or regulatory body to
restrain, modify or prevent the carrying out of the transactions
contemplated hereby, or to seek damages or a discovery order in
connection with such transaction, or which has or may have, in the
reasonable opinion of the Purchaser, a materially adverse effect on
the assets, properties, business, operations or condition (financial
or otherwise) of the Seller.
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Exhibit 99.1
12. MISCELLANEOUS
12.1 PUBLICITY. Except as required by applicable federal securities
law or other law, no publicity release or announcement concerning this
Agreement or the transactions contemplated hereby shall be issued by
either party at any time from the signing hereof without advance
approval in writing of the form and substance thereof by the other
party.
12.2 NOTICES. Any notice or other communication required or which may
be given hereunder shall be in writing by a party or by an attorney to
a party and shall be delivered personally, telegraphed, telexed, sent
by facsimile transmission. Or sent by certified, registered, or
express mail postage prepaid and shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile
transmission or if mailed, four (4) days after the date of mailing, as
follows:
If to the Purchaser: R. Xxxxxx Xxxxx
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, XX 00000
If to Seller: Xxxxxxx Xxxxx
0000 X. Xxxxxxx Xxx
Xxxxx 000, X-0
Lighthouse Point, F1 33064
Any party may, by notice given in accordance with this Article to the
other parties, designate another address or person for receipt of
notice hereunder.
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Exhibit 99.1
12.3 ENTIRE AGREEMENT. This Agreement, including the Exhibits and
Schedules attached hereto, contain the entire agreement among the
parties with respect to the Transaction between Seller and Purchaser
and supersede all prior agreements, written or oral with respect
thereto.
12.4 WAIVERS AND AMENDMENTS. This Agreement may be amended, modified,
superseded, extended and the terms and conditions hereof may be waived
only by a written instrument signed by the parties. No waiver of any
right, power or privilege hereunder, nor will such preclude any other
or further exercise thereof or the exercise of any other right, power
or privilege hereunder. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies of any part
based upon arising out of, or otherwise in respect of, any inaccuracy
in, or breach of, any representations, warranty, covenant or agreement
contained in this Agreement, and shall in no way be limited by the
fact that the act, omission, occurrence or other state of facts upon
which the claim of any inaccuracy or breach is based, may also be the
subject matter 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.
12.5 INDEMNIFICATION. All representations, warranties, covenants and
agreements made herein and in the Exhibits attached hereto shall
survive the execution and delivery of this Agreement and payment
pursuant thereto, Seller hereby agrees, jointly and severally, to
indemnify, defend, and hold Purchaser harmless from and against any
damage, loss liability or expense (including, without limitation,
reasonable expenses of investigation and reasonable attorney's fees)
arising out of any material breach of any representation, warranty,
covenant, or agreement made by Seller to Purchaser in this Agreement
and Purchaser hereby agrees, jointly and severally, to indemnify,
defend, and hold Seller harmless from and against any damage, loss
/s/RM /s/MD
20
Exhibit 99.1
liability or expense (including, without limitation. reasonable
expenses of investigation and reasonable attorneys fees) arising out
of an), material breach of any representation, warranty, covenant, or
agreement made by Purchaser to Seller in this Agreement.
12.6 GOVERNING LAW. This Agreement shall be governed and construed
solely in accordance with the laws of the State of Utah.
12.7 NO ASSIGNMENT. This Agreement is not assignable except with the
written consent of the parties or by operations of Law.
12.8 EXHIBITS AND SCHEDULES. The Exhibits and Schedules to this
Agreement are a part of this Agreement as if set forth in full herein.
12.9 HEADINGS. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
12.10 SEVERABILITY OF PROVISIONS. The invalidity or unenforceability
of any term, phase, clause, paragraph, restriction, covenant,
agreement, or other provision of this Agreement shall in no way affect
the validity or enforcement of any other provisions or any part
thereof.
12.11 COUNTERPARTS. This agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an
original copy hereof, but all of which together shall be considered
but one and the same document.
12.12 ATTORNEY'S FEES AND COST. In connection with any litigation
arising out of the Agreement or the Parties relationship as
contemplated herein, each party shall pay its own attorney's fees and
/s/RM /s/MD
21
Exhibit 99.1
court costs and any and all fees in connection with any appellate
proceeding occasioned as a result thereof.
12.13 GENDER. Whenever the context may require any pronouns used
herein shall include the corresponding masculine, feminine or neuter
forms and the singular form of nouns and pronouns shall include the
plural and vice versa.
12.l4 LITIGATION. Venue for any litigation hereunder shall be in the
Circuit Court of Broward County, Florida, if the dispute arises after
six months from the date of this Agreement. Any dispute arising prior
to that time will be deemed to have arisen within Salt Lake County,
Utah.
12.l5 CONSTRUCTION. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the
document.
12.16 BOARD COMPENSATION. Initially, the members of the board who are
insiders will serve without compensation. Outside members of the
board will be compensated $1,000 per day for each day that they attend
board meetings, plus expenses, or $300 per day for board meetings that
are conducted by telephone.
/s/RM /s/MD
22
Exhibit 99.1
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date first above written.
Attest Beryllium International Corporation
__/s/X. Xxxxxx Ickes____ By:_____/s/Xxxxxxx Moody___________
Secretary Xxxxxxx Xxxxx
CEO, President
President
XXXXXXXXXX-XXXXXX.XXX, INC.
Attest
_______/s/Xxxxxxx Dwyer__________
By: Xxxxxxx Xxxxx
__/s/Xxxxxxx X. Dwyer___ Its: President
Secretary
23
Exhibit 99.1
XXXXXXXXXX-XXXXXX.XXX,
SCHEDULES/EXHIBITS TO PURCHASE AND SALE AGREEMENT
A: Assets of Seller being acquired by Purchaser
B: Liabilities of Seller assumed by Purchaser
C: Purchaser's Charter and Bylaws
D: Purchaser's authorized, issued, and outstanding securities
E: Pending litigation
F: Audited Statement of Assets and Liabilities of Seller
G: Seller's Tax Returns
H: Litigation against Seller
I: Seller's overdue Receivables
J: Xxxxx Employment Agreement
/s/RM /s/MD
24
Exhibit 99.1
Asset Schedule
1. 4 Pentium II 400 computers with 15" color monitors, sound cards, 200
watt speakers, network cards, 6 gigabyte hard drives, and 64 megs of
ram
2. 1 Pentium II 200 server running novel
3. 1 Toshiba Pentium 160 color laptop with CD-ROM, 3.5 disk drive, and
modem.
4. 2 CD writers
5. 2 battery back-ups
6. 1 HP color scanner
7. 6 14.4 external modems for broadcast faxing
8. 1 shredder
9. 1 Teac CD recorder
10. 1 Brother MFC 6550 laser printer
11. 1 Brother MFC 9100 color printer
12. Software; Novel, Cheyenne faxserver, Office 97 and 94, WinFax
Pro, Act, Webtrends, CD label programs, 3 Audio mixer programs,
Camtasia, Norton Antivirus, Windows 95 and 98, Access 2000,
FrontPage 98 and 2000, translator, Transform, OmniPage Pro, and
Quickbooks.
13. 1 Samsung phone system with 6 hand sets
14. 1 Auto attendant
15. 2 desks with chairs
16. 1 secretarial desk with return and chair
17. 2 reception area chairs with table.
18. 1 conference table with chairs
19. 2 full size work stations with chairs
20. 1 60" credenza with draws
/s/RM /s/MD
25
Exhibit 99.1
21. 1 60" book shelf
22. 1 refrigerator, 1 microwave, and 1 water cooler
23. Misc. plants, lamps, and pictures.
24. Office supplies; Paper 1 box, ink for printers, 200 blank CDs,
400 jewel cases, spare computer accessories keyboards, monitors,
mouse, speakers.
/s/RM /s/MD
Exhibit 99.1
Schedule (B)
Liabilities of Seller assumed by Purchaser
NONE
/s/RM /s/MD
Exhibit 99.1
Purchasers Charter and By-laws
BYLAWS
of
XXXXX ENERGY, INC.
A R T I C L E I
Offices
Section 1.
The principal office of the Corporation shall be located in Salt-Lake
City, State of Utah. The Corporation may have such other offices,
either within or without the State of Utah as the board of Directors
may designate or as the business of the Corporation may require from
time to time. The registered office of the Corporation required by the
laws of the State of Utah, to be maintained in the State of Utah may
be, but need not be identical with the principal office in the State
of Utah and the address of the registered office may be changed from
time to time by the board of Directors.
A R T I C L E II
Meeting of Stockholders
Section 1. Annual Meeting:
The annual meeting of stockholders shall be held annually with not
more than eighteen (18) months between meetings, at a time and place
selected by the board of Directors.
The secretary shall serve personally, or by mail, a written notice of
said meeting. Such notice shall be served not less than ten (10) days
nor more than fifty (50) days previous to such meeting addressed to
each stockholder at his address as it appears in the records of the
Corporation. In the event that any such meeting has all stockholders
present or of which all stockholders not present have waived notice to
said meeting in writing, such notice as described above required may
be eliminated.
28
Exhibit 99.1
Section 2. Special Meetings:
Special meetings of stockholders other than those regulated by
statute, may be called at any time by a Majority of the Directors.
Notice of such meeting stating the purpose of which it is called shall
be served personally or by mail, not less than ten days before the
date set for such meeting. If mailed it shall be directed to a
stockholder at his address as it appears in the records of the
Corporation; but at any meeting at which all stockholders shall be
present, or of which stockholders not present have waived notice in
writing, the giving of notice as above described may be dispensed
with. The Board of Directors shall also, in like manner, call a
special meeting of stockholders whenever so requested in writing by
stockholders representing no less than twenty-five percent (25%) of
the capital stock of the Company entitled to vote at the meeting. The
President may in his discretion call a special meeting of stockholders
upon ten (10) days' notice. No business other than that specified in
the call for the meeting shall be transacted at any meeting of the
stockholders, except upon a two thirds (2/3) majority of all the
shares represented at the meeting, either personally or represented by
proxy.
Section 3. Closing of Transfer Books or Fixing of Record Date:
For the purpose of determining shareholders entitled to notice of, or
to vote at any meeting of shareholders or any adjournment thereof, or
shareholders entitled to receive payment of any dividend, or in order
to make a determination of shareholders for any other proper purpose,
the Board of Directors of the Corporation may provide that the stock
transfer records shall be closed for a stated period, but not to
exceed in any case, fifty days. If the stock transfer records shah be
closed for the purpose of determining shareholders entitled to notice
of or to vote at a meeting of shareholders, such records shall be
closed for at least ten days immediately preceding such meeting. In
lieu of closing the stock transfer records, the board of Directors may
fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than fifty days
and, in case of a meeting of shareholders, not less than ten days
prior to the date on which the particular action, requiring such
determination of shareholders is to be taken. If the stock transfer
records are not closed, and no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a
meeting of shareholders, or shareholders entitled to receive payment
of a dividend, the date on which notice of the meeting is mailed or
the date on which the resolution of the Board of Directors declaring
such dividend is adopted, as the case may be, shall be the record date
for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been
made as provided in this section, such determination shall apply to
any adjournment thereof.
Section 4. Voting:
29
Exhibit 99.1
At all meetings of the shareholders of record having the right to
vote, subject to the provisions of Section 3, each stockholder of the
Corporation is entitled to one vote for each share of stock having
voting power standing in the name of such Stockholder on the records
of the Company. Votes may be cast in person or by written authorized
proxy.
Section 5. Proxy:
Each proxy must be executed in writing by the stockholder of the
Corporation or his duly authorized attorney. No proxy shall be valid
after the expiration of eleven months from the date of its execution
unless it shall have specified therein its duration. Every proxy
shall be revocable at the discretion of the person executing it or of
his personal representatives or assigns.
Section 6. Voting of Shares by Certain Holders:
Shares standing in the name of another corporation may be voted by
such officer, agent or proxy as the by-Laws of such corporation may
prescribe, or in the absence of such provision, as the Board of
Directors of such corporation may determine. Shares held by an
administrator, executor, guardian or conservator may be voted by him
either in person or by proxy without a transfer of such shares into
his name. Shares standing in the name of a trustee may be voted by him
either in person or by proxy, but no trustee shall be entitled to vote
shares held by him without a transfer of such shares into his name.
Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name if
authority so to do be contained in an appropriate order of the court
by which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee shall be entitled to vote tile
shares so transferred.
Shares of its own stock belonging to the Corporation or held by it in
a fiduciary capacity shall not be voted, directly or indirectly, at
any meeting, and shall not be counted in determining the total number
of outstanding shares at any given time.
Section 7. Election of Directors:
At each election of Directors, every shareholder entitled to vote at
such election shall have the right to vote, in person or by proxy, the
number of shares owned by him for as many persons as there are
Directors to be elected and for whose election he has a right to vote.
There shall be no cumulative voting.
Section 8. Quorum:
30
Exhibit 99.1
A majority of the outstanding shares of the corporation entitled to
vote, represented in person or by proxy, shall constitute a quorum at
a meeting of the stockholders. If a quorum shall not be present or
represented, the stockholders entitled to a vote thereat, present in
person or represented by proxy, shall have power to adjourn from time
to time the meeting until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or
represented any business or any specified item of business may be
transacted which might have been transacted at the meeting as
originally notified. The number of votes or consents of the holders
of any class of stock having voting power which shall be necessary for
the transaction of any business or any specified item of business at
any meeting of stockholders, including amendments to the Articles of
Incorporation, or the giving of any consent, shall be a majority of
the outstanding shares of the Corporation entitled to vote,
represented in person or by proxy.
Section 9. Informal Action by Shareholders:
Any action required to be taken at a meeting of the shareholders, or
any other action which may be taken at a meeting of the shareholders,
may be taken without a meeting if a consent in writing, setting forth
the action so taken shall be signed by all of the shareholders
entitled to vote with respect to the subject matter thereof.
A R T I C L E III
Directors
Section 1. Number:
The affairs and business of this Corporation shall be managed by a
Board of Directors. The first Board of Directors shall consist of
three (3) members. Thereafter the number of directors may be increased
to not more than nine (9) by resolution of the Board of Directors.
Directors need not be stockholders and need not be residents of the
State of Utah. However, within six (6) months of being elected as a
director, such director shall at his own expense become a shareholder
by owning shares in this Corporation.
Section 2. Election:
The directors shall be elected at each annual meeting of the
stockholders, but if any such annual meeting is not held, or the
directors are not elected thereat, the directors may be elected at any
special meeting of the stockholders held for that purpose.
Section 3. Term of Office:
31
Exhibit 99.1
The tern of office of each of the Directors shall be one year, and
thereafter until his successor has been elected and qualified.
Section 4. Duties:
The Board of Directors shall have the control and general management
of the affairs and business of the Corporation. Such Directors 'shall
in all cases act as a Board, except as herein provided in Section 11,
regularly convened, by a majority, and they may adopt such rules and
regulations for the conduct of their meetings and the management of
the Company, as they may deem) proper, not inconsistent with these
By-Laws and the laws of the State of Utah.
Section 5. Directors' Meetings:
Regular meetings of the Board of Directors shall be held immediately
following the annual meeting of the stockholders, and at such other
time and place as the Board of Directors may determine. Special
meetings of the Board of Directors may be called by the President at
any time, and shall be called by the President or the Secretary upon
the written request of seventy-five percent (75%) of the directors.
Section 6. Notice of Meetings:
Notice of meetings, other than the regular annual meeting shall be
given by service upon each Director in person, or by mailing to him at
his last known address, at least five (5) days before the date therein
designated for such meeting, including the day of mailing, a written
or printed notice thereof specifying the time and place of such
meeting, and the business to be brought before the meeting and no
business other than that specified in such notice shall be transacted
at any special meeting. At any meeting at which every member of the
Board of Directors shall be present, although held without notice, any
business may be transacted which might have been transacted if the
meeting had been duly called. Any Director may waive notice of any
meeting under the provisions of Article X. The attendance of a
Director at a meeting shall constitute a waiver of notice of such
meeting except where a Director attends a meeting for the express
purpose of objecting to the transaction of any business because the
meeting is not lawfully convened or called.
Section 7. Voting:
At all meetings of the Board of Directors, each Director is to have
one vote, irrespective of the number of shares of stock that he may
hold. The act of a majority of the Directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors.
Section 8. Vacancies:
32
Exhibit 99.1
Vacancies in the Board occurring between annual meetings may be filled
for the unexpired portion of the term by a majority of the remaining
Directors.
Section 9. Removal of Directors:
Any one or more of the Directors may be removed whether with or
without cause, at any time by vote of the stockholders holding a
majority of the stock, at any special meeting called for that purpose.
Section 10. Quorum:
The number of Directors who shall be present at any Meeting of the
board of Directors in order to constitute a quorum for the transaction
of any business or any specified item of business shall be a majority.
The number of votes of Directors that shall be necessary for the
transaction of any business or any specified item of business at any
meeting of the Board of Directors shall be a majority. If a quorum
shall not be present at any meeting of the Board of Directors, those
present may adjourn the meeting from time to time until a quorum shall
be present.
Section 11. Executive Committee:
By resolution of the Board of Directors, the Directors may designate
an executive committee of not less than three directors, to manage and
direct the daily affairs of the Corporation. Said Executive Committee
shall have and may exercise all of the authority that is vested in the
Board of Directors as if the Board of Directors were regularly
convened, except that the Executive Committee shall not have authority
to amend these By-Laws.
At all meetings of the Executive Committee, each member of said
committee shall have one vote and the act of a majority of the members
present at a meeting at which a quorum is present shall be the act of
the Executive Committee. The number of Executive Committee members who
shall be present at any meeting of the Executive Committee in order to
constitute a quorum for the transaction of any business or any
specified item of business shall be a majority. The number of votes of
Executive Committee members that shall be necessary for the
transaction of any business or any specified item of business at any
meeting of the Executive Committee shall be a majority.
Section 12. Compensation:
By resolution of the Board of Directors, the Directors may be paid
their expenses, if any, for attendance at each meeting of the Board of
Directors, and in addition, may be given a stated salary, or per diem,
as Director. No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation
therefor.
Section 13. Presumption of Assent:
33
Exhibit 99.1
A Director of the Corporation who is present at a meeting of the Board
of Directors at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his dissent shall
be entered in the minutes of the meeting or unless he shall file his
written dissent to such action with the person acting as the Secretary
of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a Director who voted in favor of such
action.
ARTICLE IV
Officers
Section 1. Number:
The officers of this Corporation shall be: a President, such Vice
Presidents as designated, a Secretary, and a Treasurer. Any officer
may hold more than one (1) office, except the offices of President and
Secretary shall not be held by the same persons.
Section 2. Election:
All officers of the Corporation shall be elected annually by the Board
of Directors at its meeting held immediately after the meeting of
stockholders, and shall hold office, for the term of one year or until
their successors are duly elected. Officers need not be members of the
Board. The Board may appoint such other officers, agents and employees
as it shall deem necessary who shall have such authority and shall
perform such duties as from time to time shall be prescribed by the
Board.
Section 3, Duties of Officers:
The duties and powers of the officers of the Company shall be as
follows:
PRESIDENT: The President shall preside over the daily operations of
the Company and shall fulfill other assignments as directed by the
Board of Directors. He shall appoint and remove, employ and discharge,
and fix the compensation of all servants, agents, employees, and
clerks of the Corporation other than the duly appointed officers,
subject to the approval of the Board of Directors. He shall sign and
make all contracts and agreements in the name of the Corporation. He
shall see that the books, reports, statements and certificates
required by the statutes are properly kept, made and filed according
to law. He shall sign all certificates of stock, notes, drafts or
bills of exchange, warrants or other orders for the payment of money
duly drawn by the Treasurer. He shall enforce these By-Laws and
perform all the duties incident to the position and office, and which
are required by law.
34
Exhibit 99.1
VICE PRESIDENT: During the absence or inability of the President to
render and perform his duties or exercise his powers, as set forth in
these By-Laws, or in the acts under which this Corporation is
organized, the same shall be performed and exercised by the Vice
President; and when so acting, he shall have all the powers and be
subject to all the responsibilities hereby given to or imposed upon
such a President. If more than one Vice President has been elected and
is serving in that capacity on a full-time basis, the Chairman of the
Board of Directors shall designate one or more of the Vice Presidents
to act in the absence or inability of the President as designated
above. In the event that the Chairman is not able to designate an
acting president, then a majority of the Board of Directors shall
designate a Vice President to act as president.
SECRETARY: The Secretary shall keep the minutes of the meetings of the
Board of Directors and of the stockholders in appropriate books. He
shall give and serve all notices of the Corporation. lie shall be
custodian of the records and of the seal and affix the latter when
required. He shall keep or cause to be kept the Stock and Transfer
Records in the manner prescribed by law, so as to show at all times
the amount of capital stock issued and outstanding, the names of the
owners thereof, alphabetically arranged, the number of shares owned by
each, and keep such Stock and Transfer Records available daily during
the business hours at the office of the Corporation, subject to the
inspection of any stockholder of the Corporation, and permit such
stockholder to make extracts from said records to the extent
prescribed by law. He shall sign all certificates of stock. He shall
present to the Board of Directors at their stated meetings all
communications addressed to him officially by the President or any
officer or shareholder of the Corporation. He shall attend to all
correspondence and perform all the duties incident to the office of
Secretary.
TREASURER: The Treasurer shall have the care and custody of and be
responsible for all the funds and securities of the Corporation, and
deposit all such funds in the name of the Corporation in such bank or
banks, trust company or trust companies or safe deposit vaults as the
Board of Directors may designate. He shall exhibit at all reasonable
times his books and accounts to any Director or stockholder of the
Company upon application at the office of the Corporation during
business hours. He shall render a statement of the conditions of the
finances of the Corporation at each regular meeting of the Board of
Directors, and at such other times as shall be required of him, and a
full financial report at the annual meeting of the stockholders. He
shall keep at the office of the Corporation, correct books of account
of all its business and transactions and such other books of account
as the Board of Directors may require. He shall do and perform all
duties appertaining to the office of Treasurer.
Section 4. bond:
35
Exhibit 99.1
Any or all officers shall, if required by the Board of Directors, give
to the Corporation such security for the faithful discharge of his
duties as the Board may direct, at the expense of the Corporation.
Section 5. Vacancies, How Filled:
All vacancies in any office shall be filled by the Board of Directors
without undue delay, at its regular meeting or at a meeting specially
called for that purpose. In the case of the absence of any officer of
the Corporation or for any reason that the Board of Directors may deem
sufficient, the Board may, except as specifically otherwise provided
in these By-Laws delegate the powers or duties of such officers to any
other officer or Director for the time being, provided a majority of
the entire Board concur therein.
Section 6. Compensation of officers:
The officers shall receive such salary or compensation as may be
determined by the Board of Directors.
Section 7. Removal of Officers.
The Board of Directors may remove any officer, by a majority vote, at
any time with or without cause.
ARTICLE V
Certificates of Stock
Section 1. Description of Stock Certificates:
The certificates of stock shall be numbered and registered in the
order in which they are issued. They shall be controlled and shall be
issued in consecutive order, and upon the records of the Corporation
shall be entered the name of the person owning the shares therein
represented, with the number of shares and the date thereof. Such
certificates shall exhibit the holder's name and number of shares.
They shall be signed by the President or Vice President, and
countersigned by the Secretary or Treasurer and sealed with the seal
of the Corporation.
Section 2. Transfer of Stock:
The stock of the Corporation shall be assignable and transferable on
the books of the Corporation only by the person in whose name it
appears on said books, his legal representatives or by his duly
authorized agent. In case of transfer by attorney, the power of
attorney, duly executed and acknowledged, shall be deposited with the
Secretary, or his designee. In all cases of transfer, the former
36
Exhibit 99.1
certificate must be surrendered up and canceled before a new
certificate may be issued.
Section 3. Lost Certificates:
If a stockholder shall claim to have lost or destroyed a certificate
or certificates of stock issued, by the Corporation, the Secretary or
his designee may direct at his discretion, anew certificate or
certificates by issued, upon the making of an affidavit of that fact
by the person claiming the certificate of stock to be lost or
destroyed, in and upon the deposit of a bond or other indemnity in
such form as required and with such sureties, if any, as the Secretary
may require.
ARTICLE VI
Seal
Section 1. The seal of the Corporation shall be as follows:
ARTICLE VII
Dividends
Section 1. When Declared:
The Board of Directors shall by vote declare dividends from the
surplus profits of the Corporation whenever, in their opinion, the
condition of the Corporation's affairs will render it expedient for
such dividends to be declared.
Section 2. Reserve:
The Board of Directors may set aside out of the net profits of the
Corporation available for dividends such sure or sums, before payment
of any dividend, as the Board in their absolute discretion think
proper as a reserve fund, to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the Directors shall think
conducive to the interests of the Corporation, and they may abolish or
modify any such reserve in the manner in which it was created.
ARTICLE VIII
Bills, Notes, Etc.
Section 1. How Made:
All bills payable, notes, checks, drafts, warrants or other negotiable
instruments of the Corporation shall be made in the name of the
Corporation, and shall be signed by any such officer or officers,
agent or agents of the Corporation and in such manner as shall from
time to time be determined by resolution of the Board of Directors.
37
Exhibit 99.1
ARTICLE IX
Indemnification
Section 1.
Any person made a party or involved in any civil, criminal or
administrative action, suit, or proceeding by reason of the fact that
he or his testator or intestate is or was director, officer, or
employee of the Corporation, or of any corporation which he, the
testator, or intestate served as such at the request of the
Corporation shall be indemnified by the Corporation against expenses
reasonably incurred by him or imposed on him in connection with or
resulting from the defense of such action, suit, or proceeding and in
connection with or resulting from any appeal therein, except with
respect to matters as to which it is adjudged in such action, suit or
proceeding that such officer, director, or employee was liable to the
Corporation, or to such other corporation, for negligence or
misconduct in the performance of his duty. As used herein the term
"expense" shall include all obligations incurred by such person for
the payment of money, including without limitation attorney's
fees,judgments, awards, fines, penalties, and amounts paid in
satisfaction of judgment or in settlement of any such action, suit
or proceeding, except amounts paid to the Corporation or such other
corporation by hire. A judgment or conviction whether based on plea of
guilty or nolocontendre or its equivalent or after trial shall not of
itself be deemed an ajudication that such director, officer or
employee is liable to the Corporation, or such other corporation, for
negligence or misconduct in the performance of his duties.
Determination of the rights of such indemnification and the amount
thereof may be made at the option of the person to be indemnified
pursuant to procedure set forth from time to time by the By-Laws, or
by any of the following procedures: (a) order of the court or
administrative body or agency having jurisdiction of the action, suit,
or proceeding;(b) resolution adopted by a majority of the quorum of
the Board of Directors of the Corporation without counting such in
majority a quorum any directors who have incurred expenses in
connection with such action, suit or proceeding; (c) if there is no
quorum of directors who have not incurred expenses in connection with
such action, suit or proceeding, then by resolution adopted by a
majority of the committee of stockholders and directors who have not
incurred such expenses appointed by the Board of Directors; (d)
resolution adopted by a majority of the quorum of the Directors
entitled to vote at any meeting; or (e) order of any court having
jurisdiction over the Corporation. Any such determination that a
payment by way of indemnity should be made will be binding upon the
Corporation, such right of indemnification shall not be exclusive of
any other right which such directors, officers, and employees of the
Corporation and the other persons above-mentioned may have or
hereafter acquire and, without limiting the generality of such
statement, they shall be entitled to their respective rights of
38
Exhibit 99.1
indemnification under any By-Laws, Agreement, vote of stockholders,
provision of law, or otherwise as well as their rights under this
Article. The provisions of this Article shall apply to any member of
any committee appointed by the Board of Directors as fully as though
such person had-been a director, officer or employee of the
Corporation.
ARTICLE X
Amendments
Section 1. How Amended:
These By-Laws may be altered amended, repealed or added to by the vote
of the Board of Directors of this Corporation at any regular meeting
of said Board, or at a special meeting of directors called for that
purpose provided a quorum of the Directors as provided by law and by
the Articles of Incorporation, as are present at such regular meeting
or special meeting. These By-Laws and any amendments thereto and new
By-Laws added by the Directors may be amended altered or replaced by
the stockholders at any annual or special meeting of the stockholders.
ARTICLE XI
Fiscal Year
Section 1.
The fiscal year shall begin April 1.
ARTICLE XII
Waiver of Notice
Section I.
Whenever any notice is required to be given to any shareholder or
director of the Corporation under the provisions of the Utah Business
Corporation Act, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such
notice.
THESE BY-LAWS APPROVED AND ADOPTED AT A MEETING OF THE BOARD
OF DIRECTORS OF XXXXX ENERGY, INC. THIS 15, DAY OF JULY 1982
President
CERTIFICATE OF SECRETARY
39
Exhibit 99.1
1, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of XXXXX ENERGY,
INC., a Utah corporation,
(2) That the foregoing By-Laws, comprising of twenty-three (23) pages,
constitute the By-Laws, as amended, of said Corporation as duly
adopted at a meeting of the Board of Directors thereof duly held on
the 15 day of JULY, 1982.
IN WITNESS WHEREOF, I
affixed the seal of said Corporation
have her unto subscribed my name and
this 12th day of August 1982.
Secretary
ARTICLES OF AMENDMENT TO
THE ARTICLES OF INCORPORATION OF
XXXXX ENERGY, INC.
Pursuant to the provisions of Section 16-10-57 of the Utah Business
Corporation Act, the undersigned corporation hereby adopts the
following Articles of Amendment to its Articles of Incorporation:
FIRST: The name of the Corporation is Xxxxx Energy, Inc.
SECOND: The following amendments to the articles of incorporation were
duly adopted by a majority vote at the annual meeting of the
shareholders of the Corporation held on December 19, 1986 in
accordance with Section 16-10-55 of the Utah Business Corporation Act:
Article I of the articles of incorporation pertaining to the name of
the Corporation is hereby amended by striking the existing Article I
and inserting in lieu thereof a new Article I, set forth in its
entirety as follows:
ARTICLE I
The name of the Corporation is Beryllium International Corporation.
Article IV of the articles of incorporation pertaining to the
authorization of common stock is hereby amended by striking the
existing Article IV and inserting in lieu thereof a new Article IV,
set forth in its entirety as follows:
40
Exhibit 99.1
ARTICLE IV
AUTHORIZED SHARES
The Corporation shall have authority to issue a total of 50,000,000
shares of common voting stock, par value $0.01. All the shares of the
Corporation shall have the same rights, designations, and preferences.
THIRD: The designation and number of outstanding shares of each class
entitled to vote thereon as a class were as follows:
CLASS NUMBER OF SHARES
Common 7,734,862
FOURTH: The number of shares voted for the amendments to Article I and
Article IV was 4,156,268, with 7,000 opposing or abstaining.
ATTEST:
FIFTH: This amendment does not provide for any exchange,
reclassification, or cancellation of issued shares.
SIXTH: This amendment does effect a change in the stated capital of
the corporation.
IN WITNESS WHEREOF, the foregoing Articles of Amendment to the
Articles of Incorporation of Xxxxx Energy, Inc., have been executed
this day of January, 1987.
Xxxxxx Xxxxx, Secretary
SATE OF UTAH )
COUNTY OF SALT LAKE )
XXXXX ENERGY, INC.
Xxxxxxx X. Xxxxx, President
On January - 1987, before me, the undersigned, a notary public in and
for the county and state, personally appeared Xxxxxxx X. Xxxxx and R.
Xxxxxx Xxxxx, who, being by me duly sworn, did state, each for
himself, that he, Xxxxxxx X. Xxxxx, is the president, and that he, R.
Xxxxxx Xxxxx, is the secretary, of Xxxxx Energy, Inc., a Utah
corporation, and that the foregoing Articles of Amendment to the
Articles of Incorporation of Xxxxx Energy, Inc. were signed on behalf
of such corporation by authority of a resolution of its board of
directors and that the statements contained therein are true.
WITNESS my hand and official seal.
Notary Public Residing in
My Commission Expires:
41
Exhibit 99.1
Schedule (D)
Total shares authorized 50,000,000
Total issued and outstanding 20,936,880
Shares for warrants 2,500,000
42
Exhibit 99.1
Schedule (E)
Pending litigation None
43
Exhibit 99.1
Schedule (H)
Pending litigation None
44
Exhibit 99.1
Schedule (I)
Overdue Receivables None
45
Exhibit 99.1
Schedule (J)
XXXXX Employment Agreement.
46
Exhibit 99.1
