EXHIBIT 10.1
(Agreement and Plan of Share Exchange)
AGREEMENT AND PLAN OF SHARE EXCHANGE
BETWEEN
AMERICAN CONSOLIDATED MINING CO.
AND
RENAISSANCE MAN, INC.
TABLE OF CONTENTS
1. Plan of Share Exchange..........................................1
2. Exchange of Shares..............................................1
3. Pre-Closing Events..............................................2
4. Exchange of Securities..........................................2
5. Post Acquisition Events.........................................2
6. Other Matters...................................................3
7. Delivery of Shares..............................................3
8. Representations of RMI Shareholders.............................3
9. Representations of RMI..........................................4
10. Representations of ACMC........................................6
11. Closing........................................................7
12. Conditions Precedent to the Obligations of RMI.................8
13. Conditions Precedent to the Obligations of ACMC ...............9
14. Indemnification...............................................10
15. Nature and Survival of Representations........................10
16. Documents at Closing..........................................11
17. Finder's Fees.................................................12
18. Confidentiality...............................................12
19. Miscellaneous.................................................13
Exhibit A - RMI Stockholder Schedule
Exhibit B - Amendment to Articles of Incorporation
Exhibit C - Investment Letter
AGREEMENT AND PLAN OF SHARE EXCHANGE
This Agreement and Plan of Share Exchange (hereinafter the "Agreement")
is entered into effective as of this 14th day of July, 2001, by and among
American Consolidated Mining Co., a Utah corporation (hereinafter "ACMC"),
Renaissance Man, Inc., a Texas corporation (hereinafter "RMI") and the owners of
all the outstanding shares of common stock of RMI (hereinafter the "RMI
Stockholders").
RECITALS:
WHEREAS, the RMI Stockholders own 9,350,000 shares of RMI common stock
which represents all of the issued and outstanding shares of RMI (the "RMI
Common Stock"). ACMC desires to acquire the RMI Common Stock solely in exchange
for voting common stock of ACMC, making RMI a wholly-owned subsidiary of ACMC;
and
WHEREAS, the RMI Stockholders (as set forth on the attached Exhibit
"A") desire to acquire voting common stock of ACMC in exchange for the RMI
Common Stock, as more fully set forth herein.
NOW THEREFORE, for the mutual consideration set out herein and other
good and valuable consideration, the legal sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. Plan of Share Exchange. It is hereby agreed that all of the RMI
Common Stock shall be acquired by ACMC in exchange solely for ACMC common voting
stock (the "ACMC Shares"). It is the intention of the parties hereto that all of
the issued and outstanding shares of capital stock of RMI shall be acquired by
ACMC in exchange solely for ACMC common voting stock and that this entire
transaction qualify as a corporate reorganization under Section 368(a)(1)(B) of
the Internal Revenue Code of 1986, as amended, and related or other applicable
sections thereunder. However, neither party is making any representations or
warranties regarding the tax treatment of this transaction.
2. Exchange of Shares. ACMC and RMI Stockholders agree that on the
Closing Date or at the Closing as hereinafter defined, the RMI Common Stock
shall be delivered at Closing to ACMC in exchange for the ACMC Shares, after
giving effect to a 100 to 1 reverse stock split (the "ACMC Reverse Stock Split")
as to all presently outstanding shares of ACMC common stock, as follows:
(a) At Closing, ACMC shall, subject to the conditions set forth herein,
issue an aggregate of 11,000,000 shares of ACMC common stock for immediate
delivery to the RMI Stockholders on the basis of 1.176470588 ACMC Shares for
each outstanding share of RMI Common Stock.
(b) Unless otherwise agreed by ACMC and RMI this transaction shall
close only in the event ACMC is able to acquire all of the outstanding RMI
Common Stock.
3. Pre-Closing Events. The Closing is subject to the completion of the
following:
(a) ACMC shall have authorized 70,000,000 shares of $.01 par value
common stock.
(b) ACMC shall have effectuated the ACMC Reverse Stock Split at or
prior to Closing, and shall have 1,500,000 shares of its common stock issued and
outstanding and no other shares of capital stock issued or outstanding.
(c) ACMC shall demonstrate to the reasonable satisfaction of RMI that
it has no material assets and that its liabilities, contingent and fixed, do not
exceed $10,000.
4. Exchange of Securities. As of the Closing Date each of the following
shall occur:
(a) Each share of RMI Common Stock issued and outstanding immediately
prior to the Closing Date shall be exchanged for 1.176470588 ACMC Shares to be
delivered at Closing. All such outstanding shares of RMI Common Stock shall be
deemed, after Closing, to be owned by ACMC. The holders of such certificates
previously evidencing shares of RMI Common Stock outstanding immediately prior
to the Closing Date shall cease to have any rights with respect to such shares
of RMI Common Stock except as otherwise provided herein or by law;
(b) Any shares of RMI Common Stock held in the treasury of RMI
immediately prior to the Closing Date shall automatically be canceled and
extinguished without any conversion thereof and no payment shall be made with
respect thereto; and
(c) The 1,500,000 shares of ACMC common stock previously issued and
outstanding prior to the Closing, after giving effect to the ACMC Reverse Split,
will remain outstanding.
5. Other Events Occurring at Closing. At Closing, the following shall
be accomplished:
(a) ACMC shall file an amendment to its Articles of Incorporation with
the Division of Corporation and Commercial Code of the State of Utah in
substantially the form attached hereto as Exhibit "B" effecting an amendment to
its Certificate of Incorporation to reflect a name change and to accomplish the
ACMC Reverse Stock Split, all as set forth in the attached Exhibit "B".
(b) The resignation of the existing ACMC officers and directors and
appointment of new officers and directors as described in Section 12(f) hereof.
6. Other Matters.
(a) Except as otherwise described herein, including the ACMC Reverse
Stock Split, there shall be no stock dividend, stock split, recapitalization, or
exchange of shares with respect to or rights issued in respect of, ACMC's
capital stock after the date hereof and there shall be no dividends paid on
ACMC's capital stock after the date hereof, in each case through and including
the Closing Date.
(b) RMI shall have received all requisite director and shareholder
approval of all matters set forth herein, and no shareholder of RMI shall have
exercised any dissenters rights under applicable corporate law.
(c) ACMC shall have received all requisite director and shareholder
approval of the matters set forth herein.
(d) All parties hereto acknowledge and recognize that in 1994 ACMC
filed a Form 10 with the Securities and Exchange Commission registering ACMC's
common stock pursuant to section 12(g) of the Securities Exchange Act of 1934
(the "1934 Act") which Form 10 became effective 60 days after filing. As a
result of the Form 10 filing, ACMC became obligated to file annual reports on
Form 10-K or 10-KSB, quarterly reports on Form 10-Q or 10-QSB, Current Reports
on Form 8-K, other reports and information as described in the 1934 Act and
related rules and to otherwise comply with various provisions of the 1934 Act
and related rules. Since the Form 10 became effective, the Company has failed to
comply with substantially all of the obligations imposed upon it by the 1934 Act
(the "1934 Act Violations"). As a result, ACMC could be subject to substantial
civil and criminal penalties due to such non-compliance. There can be no
assurance that substantial civil and criminal penalties will not be imposed.
Moreover, in those instances where ACMC has held shareholder meetings without
complying with the proxy rule requirements found in the 1934 Act and related
rules, such shareholder actions may be invalid and illegal.
7. Delivery of Shares. On or as soon as practicable after the Closing
Date, RMI will use its best efforts to cause the RMI Stockholders to surrender
for cancellation certificates representing their shares of RMI Common Stock,
against delivery of certificates representing the ACMC Shares for which the
shares of RMI Common Stock are to be exchanged at Closing.
8. Representations of RMI Stockholders. RMI Stockholders hereby
represent and warrant each only as to its own RMI Common Stock, effective this
date and the Closing Date as follows:
(a) Except as may be set forth in Exhibit "A", the RMI Common Stock is
free from claims, liens, or other encumbrances, and at the Closing Date RMI
Stockholders will have good title and the unqualified right to transfer and
dispose of such RMI Common Stock.
(b) Each RMI Stockholder, respectively, is the sole owner of the issued
and outstanding RMI Common Stock as set forth in Exhibit "A";
(c) No RMI Stockholder has the present intent to sell or dispose of the
ACMC Shares and no RMI Stockholder is under a binding obligation, formal
commitment, or existing plan to sell or otherwise dispose of the ACMC Shares.
9. Representations of RMI. RMI hereby represents and warrants as
follows, which warranties and representations shall also be true as of the
Closing Date:
(a) Except as noted on Exhibit "A", the RMI Stockholders listed on the
attached Exhibit "A" are the sole owners of record and beneficially of the
issued and outstanding common stock of RMI.
(b) RMI has no outstanding or authorized capital stock, warrants,
options or convertible securities other than as described in the RMI Financial
Statements or in Exhibit "A", attached hereto.
(c) RMI has the corporate power to enter into this Agreement and to
perform its respective obligations hereunder. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by the board of directors and shareholders of RMI. The execution
and performance of this Agreement will not constitute a material breach of any
agreement, indenture, mortgage, license or other instrument or document to which
RMI is a party and will not violate any judgment, decree, order, writ, rule,
statute, or regulation applicable to RMI or its properties. The execution and
performance of this Agreement will not violate or conflict with any provision of
the Articles of Incorporation or Bylaws of RMI.
(d) The audited financial statements as of and for the period ended
December 31, 2000, which have been or will shortly be delivered to ACMC
(hereinafter referred to as the "RMI Financial Statements") are or will be when
delivered complete and accurate and fairly present the financial condition of
RMI as of the date thereof and the results of its operations for the period
covered. There are no material liabilities or obligations, either fixed or
contingent, not disclosed in the RMI Financial Statements or in any exhibit or
notes thereto other than contracts or obligations in the ordinary course of
business; and no such contracts or obligations in the ordinary course of
business constitute liens or other liabilities which materially alter the
financial condition of RMI as reflected in the RMI Financial Statements. RMI has
good title to all assets shown on the RMI Financial Statements subject only to
dispositions and other transactions in the ordinary course of business, the
disclosures set forth therein and liens and encumbrances of record. The RMI
Financial Statements have been prepared in accordance with generally accepted
accounting principles consistently applied (except as may be indicated therein
or in the notes thereto).
(e) Since the date of the RMI Financial Statements, there have not been
any material adverse changes in the financial position of RMI except changes
arising in the ordinary course of business, which changes will in no event
materially and adversely affect the financial position of RMI.
(f) RMI is not a party to any material pending litigation or, to its
best knowledge, any governmental investigation or proceeding, not reflected in
the RMI Financial Statements, and to its best knowledge, no material litigation,
claims, assessments or any governmental proceedings are threatened against RMI.
(g) RMI is in good standing in its jurisdiction of incorporation, and
is in good standing and duly qualified to do business in each jurisdiction where
required to be so qualified except where the failure to so qualify would have no
material negative impact on RMI.
(h) RMI has (or, by the Closing Date, will have filed) all material
tax, governmental and/or related forms and reports (or extensions thereof) due
or required to be filed and has (or will have) paid or made adequate provisions
for all taxes or assessments which have become due as of the Closing Date.
(i) RMI has not materially breached any material agreement to which it
is a party. RMI has previously given ACMC copies or access thereto of all
material contracts, commitments and/or agreements to which RMI is a party
including all relationships or dealings with related parties or affiliates.
(j) RMI has no subsidiary corporations except as described in writing
to ACMC.
(k) RMI has made all material corporate financial records, minute
books, and other corporate documents and records available for review to present
management of ACMC prior to the Closing Date, during reasonable business hours
and on reasonable notice.
(l) The execution of this Agreement does not materially violate or
breach any material agreement or contract to which RMI is a party and has been
duly authorized by all appropriate and necessary corporate action under Texas
law and RMI, to the extent required, has obtained all necessary approvals or
consents required by any agreement to which RMI is a party.
(m) There are no existing options, calls, warrants, preemptive rights
or commitments of any character relating to the issued or unissued capital stock
or other securities of ACMC, except as contemplated in this Agreement.
(n) All information regarding RMI that has been delivered to ACMC by
RMI for use in connection with the transaction (the "Acquisition") described
herein is true, complete and accurate in all material respects.
10. Representations of ACMC. ACMC hereby represents and warrants as
follows, which warranties and representations shall also be true as of the
Closing Date:
(a) As of the Closing Date, the ACMC Shares to be issued and delivered
to the RMI Stockholders hereunder will, when so issued and delivered,
constitute, duly authorized, validly and legally issued shares of ACMC common
stock, fully-paid and nonassessable.
(b) ACMC has the corporate power to enter into this Agreement and to
perform its respective obligations hereunder. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by the board of directors of ACMC. The execution and performance
of this Agreement will not constitute a material breach of any agreement,
indenture, mortgage, license or other instrument or document to which ACMC is a
party and will not violate any judgment, decree, order, writ, rule, statute, or
regulation applicable to ACMC or its properties. The execution and performance
of this Agreement will not violate or conflict with any provision of the
Articles of Incorporation or Bylaws of ACMC.
(c) The audited financial statements as of and for the period ended
December 31, 2000, which have been or shortly will be delivered to RMI
(hereinafter referred to as the "ACMC Financial Statements") are or will be when
delivered complete and accurate and fairly present the financial condition of
ACMC as of the date thereof and the results of its operations for the period
covered. There are no material liabilities or obligations, either fixed or
contingent, not disclosed in the ACMC Financial Statements or in any exhibit or
notes thereto other than contracts or obligations in the ordinary course of
business; and no such contracts or obligations in the ordinary course of
business constitute liens or other liabilities which materially alter the
financial condition of ACMC as reflected in the ACMC Financial Statements. ACMC
has good title to all assets shown on the ACMC Financial Statements subject only
to dispositions and other transactions in the ordinary course of business, the
disclosures set forth therein and liens and encumbrances of record. The ACMC
Financial Statements have been prepared in accordance with generally accepted
accounting principles consistently applied (except as may be indicated therein
or in the notes thereto).
(d) Since the date of the ACMC Financial Statements, there have not
been any material adverse changes in the financial position of ACMC except
changes arising in the ordinary course of business, which changes will in no
event materially and adversely affect the financial position of ACMC.
(e) ACMC is not a party to any material pending litigation or, to its
best knowledge, any governmental investigation or proceeding, not reflected in
the ACMC Financial Statements, and to its best knowledge, no material
litigation, claims, assessments or any governmental proceedings are threatened
against ACMC.
(f) ACMC is in good standing in the State of Utah.
(g) ACMC has (or, by the Closing Date, will have filed) all material
tax, governmental and/or related forms and reports (or extensions thereof) due
or required to be filed and has (or will have) paid or made adequate provisions
for all taxes or assessments which have become due as of the Closing Date.
(h) ACMC has not materially breached any material agreement to which it
is a party. ACMC has previously given RMI copies or access thereto of all
material contracts, commitments and/or agreements to which ACMC is a party
including all relationships or dealings with related parties or affiliates.
(i) ACMC has no subsidiary corporations except as described in writing
to RMI.
(j) ACMC has made all material corporate financial records, minute
books, and other corporate documents and records available for review to present
management of RMI prior to the Closing Date, during reasonable business hours
and on reasonable notice.
(k) The execution of this Agreement does not materially violate or
breach any material agreement or contract to which ACMC is a party and has been
duly authorized by all appropriate and necessary corporate action under Utah law
and ACMC, to the extent required, has obtained all necessary approvals or
consents required by any agreement to which ACMC is a party.
(l) There are no existing options, calls, warrants, preemptive rights
or commitments of any character relating to the issued or unissued capital stock
or other securities of ACMC, except as contemplated in this Agreement.
(m) All information regarding ACMC that has been delivered to RMI by
ACMC for use in connection with the transaction (the "Acquisition") described
herein is true, complete and accurate in all material respects.
(n) Notwithstanding the foregoing representations and warrants, ACMC
makes no representations and warranties with respect to the possible penalties,
liabilities or effects of the 1934 Act Violations.
11. Closing. The Closing of the transactions contemplated herein shall
take place on such date (the "Closing") as mutually determined by the parties
hereto when all conditions precedent have been met and all required documents
have been delivered, which Closing shall be no later than thirty days following
ACMC shareholder approval of the reverse stock split reference in Section 3(b),
unless extended by mutual consent of all parties hereto. The "Closing Date" of
the transactions described herein (the "Acquisition"), shall be that date on
which all conditions set forth herein have been met and the ACMC Shares are
issued in exchange for the RMI Common Stock.
12. Conditions Precedent to the Obligations of RMI. All obligations of
RMI under this Agreement are subject to the fulfillment, prior to or as of the
Closing and/or the Closing Date, as indicated below, of each of the following
conditions:
(a) The representations and warranties by or on behalf of ACMC
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof shall be true in all material respects at and as of the
Closing and Closing Date as though such representations and warranties were made
at and as of such time.
(b) ACMC shall have performed and complied with all covenants,
agreements, and conditions set forth in, and shall have executed and delivered
all documents required by this Agreement to be performed or complied with or
executed and delivered by it prior to or at the Closing.
(c) On or before the Closing, the board of directors, and shareholders
representing a majority interest the outstanding common stock of ACMC, shall
have approved in accordance with applicable state corporation law and the 1934
Act the execution and delivery of this Agreement and the consummation of the
transactions contemplated herein.
(d) On or before the Closing Date, ACMC shall have delivered to RMI
certified copies of resolutions of the board of directors and shareholders of
ACMC approving and authorizing the execution, delivery and performance of this
Agreement and authorizing all of the necessary and proper action to enable ACMC
to comply with the terms of this Agreement including the election of RMI's
nominees to the Board of Directors of ACMC and all matters outlined herein.
(e) The Acquisition shall be permitted by applicable law and ACMC shall
have sufficient shares of its capital stock authorized to complete the
Acquisition.
(f) At Closing, the existing officers and directors of ACMC shall have
resigned in writing from all positions as directors and officers of ACMC
effective upon the election and appointment of the RMI nominees.
(g) At the Closing, all instruments and documents delivered to RMI and
RMI Stockholders pursuant to the provisions hereof shall be reasonably
satisfactory to legal counsel for RMI.
(h) The shares of restricted ACMC capital stock to be issued to RMI
Stockholders at Closing will be validly issued, nonassessable and fully-paid
under Utah law and will be issued in compliance with all federal, state and
applicable corporation and securities laws.
(i) RMI and RMI Stockholders shall have received the advice of their
tax advisor, if deemed necessary by them, as to all tax aspects of the
Acquisition.
(j) RMI shall have received all necessary and required approvals and
consents from required parties and its shareholders.
(k) After completing it due diligence investigation prior to the
closing, RMI shall have determined that, in RMI's sole discretion, the financial
condition of ACMC and the condition of ACMC otherwise is suitable to RMI and its
stockholders. In the event that RMI determines, in its sole discretion, that
ACMC is not suitable to RMI or its stockholders for any reason whatsoever, then
RMI may rescind this Agreement by giving written notice to ACMC. In the event of
any such rescission, this Agreement thereafter shall be null and void and
neither party shall have any obligation to the other.
13. Conditions Precedent to the Obligations of ACMC. All obligations of
ACMC under this Agreement are subject to the fulfillment, prior to or at the
Closing, of each of the following conditions:
(a) The representations and warranties by RMI and RMI Stockholders
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof shall be true in all material respects at and as of the
Closing as though such representations and warranties were made at and as of
such time.
(b) RMI shall have performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this Agreement
to be performed or complied with by it prior to or at the Closing.
(c) RMI shall deliver on behalf of the RMI Stockholders a letter
commonly known as an "Investment Letter," signed by each of said shareholders,
in substantially the form attached hereto as Exhibit "C", acknowledging that the
ACMC Shares are being acquired for investment purposes.
(d) On or before the Closing, the board of directors, and shareholders
representing a majority interest the outstanding common stock of RMI, shall have
approved in accordance with applicable state corporation law and the execution
and delivery of this Agreement and the consummation of the transactions
contemplated herein and no shareholder of RMI shall have exercised dissenters
rights under applicable corporate law.
(e) On or before the Closing Date, RMI shall have delivered to ACMC
certified copies of resolutions of the board of directors and shareholders of
RMI approving and authorizing the execution, delivery and performance of this
Agreement and authorizing all of the necessary and proper action to enable RMI
to comply with the terms of this Agreement.
(f) At the Closing, all instruments and documents delivered to ACMC
pursuant to the provisions hereof shall be reasonably satisfactory to legal
counsel for ACMC.
(g) The Acquisition shall be permitted by applicable law and ACMC shall
have sufficient shares of its capital stock authorized to complete the
Acquisition
(h) The shares of restricted ACMC capital stock to be issued to RMI
Stockholders at Closing will be validly issued, nonassessable and fully-paid
under Utah law and will be issued in compliance with all federal, state and
applicable corporation and securities laws.
(i) ACMC and ACMC Stockholders shall have received the advice of their
tax advisor, if deemed necessary by them, as to all tax aspects of the
Acquisition.
(j) ACMC shall have received all necessary and required approvals and
consents from required parties and its shareholders.
(k) After completing it due diligence investigation prior to the
closing, ACMC shall have determined that, in ACMC's sole discretion, the
financial condition of RMI and the condition of RMI otherwise is suitable to
ACMC and its stockholders. In the event that ACMC determines, in its sole
discretion, that RMI is not suitable to ACMC or its stockholders for any reason
whatsoever, then ACMC may rescind this Agreement by giving written notice to
RMI. In the event of any such rescission, this Agreement thereafter shall be
null and void and neither party shall have any obligation to the other.
14. Indemnification.
(a) For a period of one year from the Closing, ACMC agrees to indemnify
and hold harmless RMI, and for the same period RMI agrees to indemnify and hold
harmless ACMC, against and in respect of any liability, damage or deficiency,
all actions, suits, proceedings, demands, assessments, judgments, costs and
expenses including attorney's fees incident to any of the foregoing, resulting
from any material misrepresentations made by an indemnifying party to an
indemnified party, an indemnifying party's breach of covenant or warranty or an
indemnifying party's nonfulfillment of any agreement hereunder, or from any
material misrepresentation in or omission from any certificate furnished or to
be furnished hereunder.
(b) For a period of one year from the Closing, in the event that the
liabilities of ACMC exceed $10,000 on the Closing date ACMC agrees to indemnify
RMI for the amount of said liabilities in excess of $10,000.
(c) For a period of one year from the Closing, in the event that the
liabilities of RMI are materially different than disclosed to ACMC in ACMC's due
diligence investigation prior to the Closing, then RMI agrees to indemnify ACMC
for the amount of said liabilities in excess of the disclosed amounts.
15. Nature and Survival of Representations. All representations,
warranties and covenants made by any party in this Agreement shall survive the
Closing and the consummation of the transactions contemplated hereby for one
year from the Closing. All of the parties hereto are executing and carrying out
the provisions of this Agreement in reliance solely on the representations,
warranties and covenants and agreements contained in this Agreement and not upon
any investigation upon which it might have made or any representation, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth herein.
16. Documents at Closing. At the Closing, the following documents shall
be delivered:
(a) RMI will deliver, or will cause to be delivered, to ACMC the
following:
(i) a certificate executed by the President and Secretary of
RMI to the effect that all representations and warranties made by RMI
under this Agreement are true and correct as of the Closing, the same
as though originally given to ACMC on said date;
(ii) a certificate from the jurisdiction of incorporation of
RMI dated at or about the Closing to the effect that RMI is in good
standing under the laws of said jurisdiction;
(iii) certified copies of resolutions adopted by RMI's board
of directors and RMI's Stockholders authorizing the Acquisition and all
related matters described herein;
(iv) Investment Letters in the form attached hereto as Exhibit
"C" executed by each RMI Stockholder;
(v) such other instruments, documents and certificates, if
any, as are required to be delivered pursuant to the provisions of this
Agreement; and
(vi) all other items, the delivery of which is a condition
precedent to the obligations of ACMC as set forth herein.
(b) ACMC will deliver or cause to be delivered to RMI:
(i) stock certificates representing the ACMC Shares to be
issued as a part of the stock exchange as described herein;
(ii) a certificate of the President and Secretary of ACMC, to
the effect that all representations and warranties of ACMC made under
this Agreement are true and correct as of the Closing, the same as
though originally given to RMI on said date;
(iii) certified copies of resolutions adopted by ACMC's board
of directors and ACMC's Stockholders authorizing the Acquisition and
all related matters described herein;
(iv) certificate from the jurisdiction of incorporation of
ACMC dated at or about the Closing Date that ACMC is in good standing
under the laws of said state;
(v) such other instruments, documents and certificates, if
any, as are required to be delivered pursuant to the provisions of this
Agreement;
(vi) resignation of the existing officer and director of ACMC;
(vii) all corporate and financial records of ACMC; and
(viii) all other items, the delivery of which is a condition
precedent to the obligations of RMI, as set forth herein.
17. Finder's Fees. ACMC, represents and warrants to RMI, and RMI
represents and warrants to ACMC, that neither of them, or any party acting on
their behalf, has incurred any liabilities, either express or implied, to any
"broker" of "finder" or similar person in connection with this Agreement or any
of the transactions contemplated hereby. In this regard, ACMC, on the one hand,
and RMI on the other hand, will indemnify and hold the other harmless from any
claim, loss, cost or expense whatsoever (including reasonable fees and
disbursements of counsel) from or relating to any such express or implied
liability.
18. Confidentiality.
(a) Confidential Information. As used in this Agreement, the term
"Confidential Information" shall mean (a) any material information relating to
ACMC that has not been publicly disclosed by means of disclosure on an report,
registration statement or proxy statement with the Securities and Exchange
Commission, (b) information marked or designated by ACMC as confidential; (c)
information, whether or not in written form and whether or not designated as
confidential, which is known to a party as being treated by as confidential by
ACMC; (d) information provided to any party by third parties which the any party
is obligated to keep confidential, and (e) information relating to the terms and
existence of this Agreement.
(b) Non-use and Nondisclosure. Each of the parties agrees not to use
any Confidential Information for any purpose except to evaluate and engage in
discussions concerning this Agreement and the potential business relationship
relating thereto. The parties agree not to disclose any Confidential Information
of ACMC to third parties or to employees or associates of the receiving party,
except to those employees who are required to have the Confidential Information
in order to evaluate or engage in discussions concerning the contemplated
business relationship.
(c) Maintenance of Confidentiality. The parties agree to take all
reasonable measures to protect the secrecy of and prevent the disclosure and
unauthorized use of ACMC's Confidential Information. Without limiting the
foregoing, the receiving party shall take at least those measures that the
receiving party takes to protect its own Confidential Information and shall have
its employees who have access to ACMC's Confidential Information sign a non-use
and nondisclosure agreement relating to ACMC's Confidential Information. A
receiving party shall immediately notify ACMC in the event of any unauthorized
use of disclosure of ACMC's Confidential Information.
19. Miscellaneous.
(a) Further Assurances. At any time, and from time to time, after the
Closing Date, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the intent
and purposes of this Agreement.
(b) Waiver. Any failure on the part of any party hereto to comply with
any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
(c) Termination. All obligations hereunder may be terminated at the
discretion of either party's board of directors if (i) the closing conditions
specified in Sections 12 and 13 are not met within thirty days following the
ACMC shareholder approval of the reverse stock split referenced in Section 3(b),
unless extended by mutual agreement of the parties, (ii) any of the
representations and warranties made herein have been materially breached or
(iii) the Agreement is terminated pursuant to Sections 12(k) or 13(k).
(d) Amendment. This Agreement may be amended only in writing as agreed
to by all parties hereto.
(e) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent by
prepaid first class registered or certified mail, return receipt requested.
(f) Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(h) Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Utah.
(i) Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(j) Entire Agreement. This Agreement and the attached Exhibits
constitute the entire agreement of the parties covering everything agreed upon
or understood in the transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof.
(k) Time. Time is of the essence.
(l) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
(m) Responsibility and Costs. All fees, expenses and out-of-pocket
costs and expenses, including, without limitation, fees and disbursements of
counsel, advisors and accountants, incurred by the parties hereto shall be borne
solely and entirely by the party that has incurred such costs and expenses.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
AMERICAN CONSOLIDATED MINING CO. RENAISSANCE MAN, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxxx Xxxxxx
------------------------------ ----------------------
President RMI President
By: /s/ Xxxx X. XxXxxx
-----------------------------
Xxxx X. XxXxxx, Secretary
Counterpart Signature Page to the Agreement and Plan of Share Exchange
The undersigned hereby agrees to become a party as an RMI Stockholder
to the Agreement and Plan of Share Exchange dated July 14, 2001 between American
Consolidated Mining Co., Renaissance Man, Inc. (the "RMI") and the RMI
Stockholders named therein. The undersigned hereby authorizes the RMI to attach
this counterpart signature page to the Agreement and Plan of Share Exchange and
to add the name of the undersigned to the list of RMI Stockholders set forth in
Exhibit A to the Agreement and Plan of Share Exchange.
Dated: _____________ _______________________________
(signature)
Address: ________________________
________________________
EXHIBIT "A"
RMI STOCKHOLDER SCHEDULE
Name Number of Shares of Common Stock
---- --------------------------------
Xxxx Xxxx 1,000,000
Xxxxx X. Xxxxxx 1,000,000
Xxxxxxxx Xxxxxx 1,000,000
G. Xxxxx XxXxxxxx 1,000,000
Xxxx Xxxx 1,000,000
Xxxxxx X. Xxxxxxxxxx 1,000,000
Aloe Commodities International, Inc. 1,000,000
Xxxxxx Xxxxxx 1,000,000
Xxxxxxxx Xxxxxxx 500,000
Xxxxxx Xxxxxxx 500,000
Leren X. Xxxxxx
Total Issued and Outstanding 9,350,000
Total Authorized 10,000,000
EXHIBIT "B"
AMENDMENT TO ARTICLES OF INCORPORATION
[to be completed]
EXHIBIT "C"
INVESTMENT LETTER
In connection with the Agreement and Plan of Share Exchange dated July
14, 2001 (the "Agreement"), between American Consolidated Mining Co. ("ACMC"),
Renaissance Man, Inc. ("RMI") and the RMI Stockholders named therein, the
undersigned hereby represents and warrants as follows:
(a) The undersigned's representations in this letter are
complete and accurate to the best of the undersigned's knowledge, and ACMC and
RMI may rely upon them.
(b) The undersigned is able to bear the economic risk of an
investment in the ACMC common stock (the "Securities") for an indefinite period
of time, can afford the loss of the entire investment in the Securities, and
will, after making an investment in the Securities, have sufficient means of
providing for the undersigned's current needs and possible future contingencies.
Additionally, the undersigned's overall commitment to investments that are not
readily marketable is not disproportionate to the undersigned's net worth and
the share exchange described in the Agreement will not cause such overall
commitment to become excessive.
(c) The Securities will not be sold by the undersigned without
registration under applicable securities acts or a proper exemption from such
registration.
(d) The Securities are being acquired for the undersigned's
own account and risk, for investment purposes, and not on behalf of any other
person or with a view to, or for resale in connection with, any distribution
thereof within the meaning of the Securities Act of 1933. The undersigned is
aware that there are substantial restrictions on the transferability of the
Securities.
(e) The undersigned has had access to any and all information
concerning ACMC that the undersigned and the undersigned's financial, tax and
legal advisors required or considered necessary to make a proper evaluation of
this investment. Specifically, the undersigned has had access to the ACMC
Financial Statements and to the business documents referenced in Section 10(c)
and 10 (j) of the Agreement and is aware of ACMC's failure to comply with its
reporting obligations as described in Section 6(d) of the Agreement. In making
the decision to purchase the Securities by entering into the Agreement, the
undersigned and his or her advisers have relied solely upon their own
independent investigations, and fully understand that there are no guarantees,
assurances or promises in connection with any investment hereunder and
understand that the particular tax consequences arising from this investment in
ACMC will depend upon the individual circumstances of the undersigned. The
undersigned further understands that no opinion is being given as to any
securities or tax matters involving the transactions contemplated by the
Agreement.
(f) All of the representations and warranties of the
undersigned contained herein and all information furnished by the undersigned to
ACMC are true, correct and complete in all respects, and the undersigned agrees
to notify ACMC immediately of any change in any representation, warranty or
other information set forth herein.
(g) The undersigned also understands and agrees that stop
transfer instructions relating to the Securities will be placed in ACMC's stock
transfer ledger, and that the Securities sold will bear legends in substantially
the following form:
The securities represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act") and
are "restricted securities" as that term is defined in Rule
144 under the Act. The securities may not be offered for sale,
sold or otherwise transferred except pursuant to an effective
registration statement under the Act or pursuant to an
exemption from registration under the Act, the availability of
which is to be established to the satisfaction of the issuer.
(h) The undersigned knows that the Securities are offered and
sold pursuant to exemptions from registration under the Securities Act of 1933,
and state securities law based, in part, on these warranties and
representations, which are the very essence of this Agreement, and constitute a
material part of the bargained-for consideration without which this Agreement
would not have been executed.
(i) The undersigned has the capacity to protect the
undersigned's own interest in connection with this transaction or has a
pre-existing personal or business relationship with ACMC or one or more of its
officers, directors or controlling persons consisting of personal or business
contacts of a nature and duration such as would enable a reasonably prudent
purchaser to be aware of the character, business acumen and general business and
financial circumstances of such person with whom such relationship exists.
(j) The Securities offered hereby were not offered to the
undersigned by way of general solicitation or general advertising and at no time
was the undersigned presented with or solicited by means of any leaflet, public
promotional meeting, circular, newspaper or magazine article, radio or
television advertisement.
(k) If initialed below, The undersigned represents that The
undersigned is an "accredited investor" as defined under Rule 501 of Regulation
D by reason of:
FOR INDIVIDUALS ONLY (INITIAL IF APPLICABLE):
_______ 1. I had individual income (exclusive of any income attributable
Initial to my spouse) in excess of $200,000 in each of the most recent
Here two years and I reasonably expect to have an individual income
in excess of $200,000 for the current year, or I had joint
income with my spouse in excess of $300,000 in each of those
years and I reasonably expect to have a joint income with my
spouse in excess of $300,000 for the current year.
_______ 2. I have an individual net worth, or my spouse and I have a
Initial combined individual net worth, in excess of $1,000,000. For
Here purposes of this Agreement, "individual net worth" means the
excess of total assets at fair market value, including home
and personal property, over total liabilities.
_______ 3. I am qualified as an "accredited investor" pursuant to Rule
Initial 501(a) of Regulation D of the 1933 Act for the following
Here reason: ______________________________________________________
FOR CORPORATIONS AND PARTNERSHIPS ONLY (INITIAL IF APPLICABLE):
_______ 1. The undersigned hereby certifies that the Partnership or
Initial Corporation that he/she represents possesses total assets in
Here excess of $5,000,000 and was not formed for the specific
purpose of acquiring the securities offered by ACMC.
_______ 2. The undersigned hereby certifies personally, and on behalf of
Initial the Partnership or Corporation that he/she represents, that
Here all of the beneficial owners of equity qualify individually as
accredited investors under the individual accredited investor
test set forth above.
FOR TRUSTS ONLY (INITIAL IF APPLICABLE):
_______ 1. The undersigned hereby certifies that the trust which he/she
Initial represents possesses total assets in excess of $5,000,000 and
Here was not formed for the specific purpose of acquiring the
securities offered by ACMC, and that the purchase of the
securities is directed by a sophisticated person as described
in Rule 506(b)(2)(ii) of the Act.
_______ 2. The undersigned hereby certifies personally, and on behalf of
Initial the trust that he/she represents, that such trust is a
Here revocable trust that may be amended or revoked at any time by
the grantors, and all the grantors are accredited individual
investors under the individual accredited investor test set
forth above.
FOR TRUSTEES AND AGENTS (READ AND INITIAL BOTH STATEMENTS):
_______ The undersigned hereby acknowledges that he/she is acting as
Initial an agent or trustee for the following person or entity:
Here ______________________________________________________________
_______ 2. The undersigned hereby agrees to provide to ACMC, upon ACMC's
Initial request, the following documents:
Here
(a) a copy of the trust agreement, power of attorney or
other instrument granting the power and authority to
execute and deliver the Agreement, or
(b) an opinion of counsel verifying the undersigned's
power and authority to execute and deliver the
Agreement and this letter.
The representations and warranties contained herein shall survive the
Closing of the transaction described in the Agreement.
Date: ________________ _____________________________
_____________________________
(print name)
