Exhibit 10.7
AGREEMENT OF BUSINESS COMBINATION
BY EXCHANGE OF ASSETS FOR
STOCK
AGREEMENT dated this 12TH day of October, 1995, by and between XXXXXXX XXXXXX,
businesswoman (herein "Xxxxxx"), of #705, 000 Xxxxxxxxx Xx., Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, X0X 0X0, and NAPTAU GOLD CORPORATION, a Delaware Corporation (herein
"NAPTAU"), having its registered offices at 11th Floor, Xxxxxx Square North,
11th and Market Streets, Wilmington, New Castle County, Delaware 19801
W I T N E S S E T H
WHEREAS, Xxxxxx is desirous of exchanging certain of her assets, consisting of
Placer Mining Lease #1160 in the Cariboo Mining Division of British Columbia, in
the area of Likely, British Columbia, Canada (the "Lease"); and
WHEREAS, NAPTAU is desirous of acquiring the Lease of Xxxxxx;
IT IS NOW THEREFORE AGREED that in consideration of the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. Exchange of Assets.
1.1 Subject to the terms and conditions of this Agreement and the performance by
the parties hereto of their respective obligations hereunder, Xxxxxx shall
exchange, transfer, convey, assign and deliver to NAPTAU, and NAPTAU shall
receive, acquire and accept on the Closing Date (as such term is hereinafter
defined) all of the right, title and interest of Xxxxxx in and to the Lease,
being generally described as a placer mining lease, as the same shall exist on
the Closing Date, including, without limitation, all rights relating to or
arising out of the mining of the Lease conducted by Xxxxxx, free and clear of
all liabilities, obligations, liens and encumbrances, except as expressly
assumed by NAPTAU under Section 2 below.
1.2 The transfer of the Lease as herein provided shall be effected by a xxxx of
sale, endorsement, assignment, draft, check, deed or other instrument of
transfer and conveyance delivered to NAPTAU on the Closing Date in a form
sufficient to transfer the Lease as contemplated by this agreement and any other
such as shall be reasonably requested by NAPTAU. Xxxxxx covenants that she will,
at any time and from time to time after the Closing Date, execute and deliver
such other instruments of transfer and conveyance and do all such further acts
and things as may be reasonably requested by
NAPTAU to transfer and deliver to NAPTAU or to aid and assist NAPTAU in
collecting and reducing to possession, the Lease.
2. Assumption of Liabilities. NAPTAU shall assume no liabilities of Xxxxxx,
except those which are generally any royalties, land owner payments, government
fees, or other fees which become due upon completion relating to the Lease
acquired.
3. Closing. The Closing hereunder (the "Closing") shall take place at 11:30 A.M.
on or about the 12th day of October, 1995 at the offices of Xxxxx X. Xxxxxx,
Esq., 000 Xxxxx Xxxxxx, Xxxx Xxxx, Xxx Xxxxxx 00000 or at such other time and
place as may be agreed by NAPTAU and Xxxxxx (the "Closing Date").
4. Exchange Terms; Allocation. In consideration of the exchange and immediate
transfer of the Lease herein, within 30 days or such other date as is agreed to
by the parties but not later than 60 days from the Closing Date, NAPTAU shall
pay to Xxxxxx the sum of $200,000 U.S. currency and shall deliver to Xxxxxx or
her nominees, certificates for 800,000 (EIGHT HUNDRED THOUSAND) shares of
NAPTAU's common stock.
5. Representations and Warranties of Xxxxxx. Xxxxxx hereby represents and
warrants as follows:
5.1 On or before closing Xxxxxx shall establish to the satisfaction of NAPTAU
that she has title to the Lease and authority to convey the same in accordance
with the terms of this Agreement. Xxxxxx has taken no action and has not failed
to take any action, which action or failure would preclude or prevent NAPTAU
from conducting the business of Xxxxxx in relation to the Lease in the manner
heretofore conducted.
5.2 No action, approval, consent or authorization, including but not limited to
any action, approval, consent or authorization by any governmental or
quasi-governmental agency, commission, board, bureau or instrumentality is
necessary as to Xxxxxx in order to constitute this agreement as a binding and
enforceable obligation of Xxxxxx in accordance with its terms.
5.3 Xxxxxx has not incurred any obligation or liability (absolute or contingent,
liquidated or unliquidated, xxxxxx or inchoate) except current obligations and
liabilities incurred in the ordinary course of her businesses which would act as
a lien against the Lease.
5.4 Xxxxxx has not leased, encumbered or effected any transfer of the Lease.
6. Representations and Warranties of NAPTAU. NAPTAU hereby represents and
warrants that on the Closing Date all of the following will be true, except as
further qualified herein below:
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6.1 NAPTAU is a Corporation duly organized, validly existing and in good
standing under the laws of a state of the United States. NAPTAU will be
registered under the 1934 Securities Exchange Act not more than thirty (30) days
after closing and within a reasonable time thereafter will be trading in the
NASDAQ Small Capitalization Board market. NAPTAU is not conducting any business
in any location. Complete and correct copies of the Certificate of Incorporation
of NAPTAU and all amendments thereto, certified in each case by the secretary of
State of the State of Delaware, and of the By-Laws of NAPTAU, and all amendments
thereto, certified by the secretary of NAPTAU, have been or will be delivered to
Xxxxxx on or prior to the Closing Date by NAPTAU. NAPTAU will present at closing
a Certificate of good standing or its equivalent. NAPTAU has taken no action and
has not failed to take any action, which action or failure would preclude or
prevent NAPTAU from conducting the contemplated business of NAPTAU in relation
to the Leases.
6.2 NAPTAU has no subsidiaries.
6.3 NAPTAU has no authorized or outstanding securities other than its preferred
stock which consists of 5,000,000 authorized shares with a par value of one mill
($0.001) each, none of which have been issued, and its common stock with a par
value of one mill ($0.001) per share, (the "Common Stock"), which consists of
20,000,000 authorized shares of which not more than 6,700,000 shares are to be
outstanding immediately after the Closing Date. All outstanding Common Stock is
duly authorized, validly issued, fully-paid and non-assessable (except for such
statutory and constitutional obligations as may be imposed notwithstanding full
payment for and valid issuance of such shares), and there are no presently
issued or outstanding securities of NAPTAU convertible into common stock nor are
there any outstanding options, warrants, agreements, rights or commitments of
any kind relating to the authorized but unissued Common Stock save for a Stock
Grant Program and a Stock Option Program. All transfer taxes, if any, with
respect to transfers of securities of NAPTAU made prior to the date hereof have
been paid. All of the Common Stock is owned, both beneficially and of record,
free of any security interests, liens, pledges, claims, charges, escrows
encumbrances, options, rights of first refusal, mortgagee, indentures, security
agreements or other contracts (whether or not relating in any way to credit or
the borrowing of money) and the designated owner thereof has the unrestricted
right to vote such Common Stock.
6.4 NAPTAU's Board of Director's will recommend to certain controlling
shareholders, as soon as practicable after receipt of a report from an
independent geologist as to the underlying value of the Lease, approval of the
transaction contemplated herein and obtain written consent to take such acts and
actions as may be deemed necessary or advisable by counsel to NAPTAU to fully
empower NAPTAU and its Board of Directors to enter into and consummate this
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transaction, including the giving of notice to NAPTAU shareholders as required
by New York law.
6.5 NAPTAU has full power and authority, corporate and otherwise, to enter into
this agreement and to assume and perform its, his or her obligations hereunder.
The execution and delivery of this agreement and the performance by NAPTAU of
its obligations hereunder have been duly authorized by the Board of Directors of
NAPTAU and no further action or approval, except shareholder approval, corporate
or otherwise, is required in order to constitute this agreement as a binding and
enforceable obligation on NAPTAU. The execution and delivery of this agreement
and the performance by NAPTAU of its obligations hereunder do not and will not
violate any provision of the Certificate of Incorporation or By-Laws of NAPTAU
and do not and will not conflict with or result in any breach of any condition
or provision of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of its assets by reason
of the terms of any contract, mortgage, lien, lease, agreement indenture,
instrument, judgment or decree to which NAPTAU is a party or which is or
purports to be binding upon NAPTAU or which affects or purports to affect any of
its assets.
6.6 No action, approval, consent or authorization, including but not limited to
any action, approval, consent or authorization by any governmental or
quasi-governmental agency, commission, board, bureau or instrumentality is
necessary as to NAPTAU in order to constitute this agreement as a binding and
enforceable obligation of NAPTAU in accordance with its terms.
6.7 Since the date at the last financial statement of NAPTAU, a copy of which
has been provided to Xxxxxx and is hereby acknowledged as having been received
by her, there have been no adverse changes in the financial condition, assets,
liabilities, properties or business of NAPTAU and NAPTAU has not:
6.7.1 declared, set aside or made any dividend or other distribution or
purchased, redeemed or reclassified any of their capital stock or effected any
stock split, stock dividend, exchange or recapitalization or entered into any
agreement in respect of the foregoing;
6.7.2 incurred any damage, destruction or similar loss, whether or not covered
by insurance, materially affecting their businesses or properties;
6.7.3 sold, assigned or transferred, any of their tangible assets or any patent,
trademark, tradename, copyright, license, franchise, design or other intangible
assets or properties;
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6.7.4 mortgaged, pledged, granted or suffered to exist any lien or other
encumbrance or charge on any of their assets or properties, tangible or
intangible;
6.7.5 waived any rights or material value or cancelled, discharged, satisfied or
paid any material debts or claims;
6.7.6 leased or effected any transfer of any of their assets or properties;
6.7.7 entered into, made any amendment of or terminated any lease, material
contract or license;
6.7.8 amended their Certificate of Incorporation or By-Laws;
6.7.9 effected any change in their accounting practices, procedures or methods;
6.7.10 entered into any transaction other than in the ordinary course of
business, or changed in any way any of their business policies or practices.
6.8 NAPTAU is not a party to nor has it any contract or commitment of any kind
or nature whatsoever, written or oral, formal or informal, with any government
or agency thereof, pursuant to which its right to compete with any entity or
person in the conduct of its business is restrained or restricted for any reason
or in any way.
7. Miscellaneous.
a) This Agreement shall constitute the entire agreement of the parties hereto
and may not be amended, except by written consent of the parties hereto in
writing executed by them.
b) This Agreement shall be construed according to the laws of the State of New
York and shall be enforceable in any court of competent jurisdiction located in
the State of New York.
c) This Agreement shall inure to the benefit of the parties and their heirs,
administrators and successors in interest, if any, but shall not otherwise be
assignable.
d) Where in this Agreement the singular or masculine gender are referred to, the
same shall be construed to include the plural, feminine or body corporate as the
case might require.
e) This Agreement may be executed in counterparts and receipt of facsimile
transmission of signatures shall be sufficient to effect acceptance of this
Agreement, although the parties hereto agree to submit within a reasonable time
duplicate original signed copies of this Agreement to each other.
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8. Indemnification.
Each party to this Agreement shall indemnify and hold harmless each other party
at all times after the Closing Date 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 misrepresentation, breach of covenant or warranty
for non-fulfillment of any agreement on the part of such party under this
Agreement, or from any misrepresentation in or omission from any certificate
furnished or to be furnished to a party hereunder. Subject to the terms of this
Agreement, the defaulting party shall reimburse the other party or parties on
demand for any reasonable payments made by said parties at any time after the
date of closing, in respect to any liability or claim to which the foregoing
indemnity relates, if such payment is made after reasonable notice to the other
party to defend or satisfy the same, and such party failed to defend or satisfy
the same.
IN WITNESS WHEREOF THE PARTIES HERETO, IF CORPORATE PARTIES HAVING BEEN DULY
AUTHORIZED BY THEIR RESPECTIVE BOARDS OF DIRECTORS, HAVE SET THEIR HANDS AND
SEALS ON THE DATE FIRST ABOVE WRITTEN.
NAPTAU GOLD CORPORATION
BY: XXXXXX X. XXXXX, President
EXECUTED BY XXXXXXX XXXXXX )
IN THE PRESENCE OF: )
Name: _______________________ )
Address: ____________________ ) ________________________________
_____________________________ ) XXXXXXX XXXXXX
Occupation: _________________ )
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