EXHIBIT 10(i)
STOCK EXCHANGE AGREEMENT
This Agreement ("Agreement") is made and entered into this the 20th day of
February 2001 by and between American International Ventures, Inc. f/k/a
American Precious Metals, Inc., a Delaware corporation whose address is 000
Xxxxxxxxx Xxxxxx, Xxxx, Xxx Xxxxxx 00000 (the "Purchaser"), and TLM Industries,
Inc., a New Jersey corporation whose address is 00 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxx Xxxxxx 00000 (the "Acquired Corporation") and those shareholders of the
Acquired Corporation identified on the signatory page of this Agreement (the
"Shareholders"), which Shareholders include Xxxxxxx Xxxxx and Xxxxxxx
Xxxxxxxxxxxxx ("Controlling Shareholders").
* W I T N E S S E T H *
WHEREAS, Purchaser desires to acquire all of the issued and outstanding
shares of capital stock of the Acquired Corporation from the Shareholders in
exchange for certain shares of Purchaser, and, similarly, the Shareholders
desire to acquire certain of the shares of common stock of Purchaser in exchange
for all of their shares of common stock of the Acquired Corporation, all in a
transaction that qualifies under Section 354 and 368(a)(1)(b) of the Internal
Revenue Code of 1986, as amended,
NOW THEREFORE, in consideration of the mutual covenants, terms and
conditions contained herein, the parties do hereby covenant, warrant and agree
as follows:
ARTICLE I
EXCHANGE OF STOCK
1.01. Capital Stock and Shareholders of Acquired Corporation. The issued
and outstanding capital stock of the Acquired Corporation consists of common
stock, no par value, and preferred stock, no par value. The Shareholders include
holders of common stock and holders of preferred stock of the Acquired
Corporation.
1.02. Purchaser Shares. In consideration of the mutual terms, covenants and
conditions contained herein, Purchaser hereby assigns, transfers and conveys to
each Shareholder that number of shares of common stock, $.00001 par value, of
Purchaser set opposite each Shareholder's name on Exhibit 1.02 (the "Purchaser
Shares"). The Purchaser Shares will be delivered to each Shareholder within ten
(10) days from Closing (as defined herein). In addition, Purchaser agrees to
issue shares of its common stock in fulfillment of the contractual
responsibilities of the Acquired Corporation for two (2) of its employees as set
forth on Exhibit 3.01(iii).
1.03. Share Ownership Rights of Acquired Corporation. The parties hereby
acknowledged that share certificates of the Acquired Corporation have not been
issued to each of the Shareholders. Each Shareholder, individually but not
jointly, and the Acquired Corporation hereby represent and warrant to the
Purchaser that the share ownership (which includes common stock and preferred
stock) of the Acquired Corporation set opposite each Shareholder's name on
Exhibit 1.03 (each a "Share Ownership Right") is true and correct. Each
Shareholder further represents and warrants that, except for the respective
Share Ownership Right, no warrants, options, or other rights to the capital
stock of the Acquired Corporation are held by such Shareholder. Concurrent with
the execution hereof and subject to the mutual terms, covenants and conditions
hereof including the receipt by each Shareholder of his respective Acquired
Shares, each Shareholder hereby assigns, transfers and conveys to Purchaser all
of his right, title and interest in and to all capital stock or other rights to
capital stock of the Acquired Corporation held by such Shareholder, which
includes the respective Share Ownership Right. It is understood that the stock
certificates representing each respective Share Ownership will not be provided
to the Purchaser. Rather, this instrument effectively transfers and assigns the
Share Ownership of each Shareholder to the Purchaser. The Controlling
Shareholders are holders of rights to the preferred stock, no par value, of the
Acquired Corporation. Concurrent with the execution hereof and subject to the
mutual terms, covenants and conditions hereof, each Controlling Shareholders
hereby waives and disclaims any and all rights and privileges to any and all
unpaid and/or accrued dividends or other distributions under the preferred
stock.
1.04. Additional Undertakings. Concurrent with the execution hereof and
from time to time thereafter, the parties hereto shall execute such additional
instruments and take such additional action as such other party(ies) make
reasonably request in order to effectuate the purpose and intent of this
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As of the date hereof and at Closing, Purchaser does hereby represent and
warrant to the Acquired Corporation as follows:
(i) Purchaser is a corporation duly organized, validly existing and is in
good standing under the laws of the Delaware and in other jurisdictions where it
conducts business, has full corporate power and authority to execute and deliver
this Agreement and has no subsidiaries,
(ii) the authorized capital stock of Purchaser consists of 50,000,000
shares of common stock, $.00001 par value,
(iii) the issued and outstanding shares of capital stock of Purchaser are
set forth on Exhibit 2.01 (iii). In addition, (a) there are no warrants, rights,
options, conversion privileges, stock purchase plans or other agreements or
undertakings which obligates Purchaser now or upon the occurrence of some future
event to issue additional shares of capital stock, (b) there are no restrictions
on the transfer of shares of capital stock of Purchaser other than those imposed
by relevant state and federal securities laws, and (c) no holder of any security
of Purchaser is entitled to any preemptive or similar statutory or contractual
rights, either arising pursuant to an agreement or instrument to which Purchaser
is a party or which are otherwise binding on Purchaser. The Purchaser Shares are
free and clear of any mortgage, lien, pledge, or other encumbrance and are duly
authorized, validly issued, fully paid and non-assessable shares of capital
stock of Purchaser,
(iv) the financial statements of Purchaser, which consists of an audited
balance sheet as of May 31, 2000 and the unaudited statements for the six month
period ending November 30, 2000 and related statements of income for the periods
then ended as filed with the Securities and Exchange Commission which have been
delivered to the Acquired Corporation, are correct and fairly present the
financial condition of Purchaser for the periods involved, and such statements
were prepared in accordance with generally accepted accounting standards
consistently applied; except in connection with this transaction, Purchaser has
no material liabilities, whether due or to become due, and whether accrued or
contingent, not reflected as part of the financial statements of Purchaser,
other than liabilities incurred in the ordinary course of business since
November 30, 2000 and other liabilities which, in the aggregate, are not
material to the business or financial condition of Purchaser,
(v) Except as reflected or reserved against the balance sheet of Purchaser,
as set forth on Exhibit 2.01 (iv) or as set forth on Exhibit 2.01 (v), Purchaser
has no liabilities of any nature, whether accrued, absolute, contingent or
otherwise, including, without limitation, tax liabilities and interest due or to
become due. Purchaser's accounts receivable are collectable in accordance with
the terms of such accounts, except to the extent of the reserve therefore in
Purchaser's balance sheet set forth on Exhibit 2.01 (iv),
(vi) Since the date of the financial statements set forth on Exhibit 2.01
(iv) to the present, there have not been;
(a) any changes in the condition (financial or otherwise), assets,
liabilities, capitalization, business or business prospects of Purchaser which,
individually or in the aggregate, have been materially adverse,
(b) any declaration or payment of any dividend or other distribution with
respect to Purchaser's capital stock,
(c) any direct or indirect redemption, purchase or other acquisition of
stock of Purchaser,
(d) any increases paid or agreed to be paid in the compensation, retirement
benefits or other commitments to officers, directors, employees, consultants, or
agents,
(e) any damage or destruction (whether or not covered by insurance)
adversely affecting, in any material respects, any properties, business or
business prospects of Purchaser, and,
(f) any acquisition or disposition of assets or properties in any
transaction with any officer, director, shareholder or monthly salaried employee
of Purchaser or any relative by blood or marriage or any Affiliate or Associate
(as such terms are defined in Rule 405 promulgated under the Securities Act of
1933, as amended) of any of them, or, except in the ordinary course of business,
any other acquisition or disposition of any assets or properties of material
value,
(vii) the assets reflected on the balance sheet of Purchaser as of May 31,
2000 are owned free and clear of all liens, claims, charges and encumbrances of
any kind or nature, except to the extent disposed of in the ordinary course of
business since May 31, 2000; all such assets, if any, characterized as inventory
are stated at no more than the lower of cost or market value and are, in all
material respects, usable and salable in the ordinary course of business,
(viii) there are no collective bargaining agreements and other labor
agreements to which Purchaser is a party or by which it is legally bound, and
there are no employment, profit sharing, deferred compensation, bonus, stock
option, stock purchase, pension, retainer, consulting, retirement, welfare or
incentive plans, labor contract agreements, labor arrangements or labor
practices to which Purchaser is a party or is legally bound,
(ix) Exhibit 2.01 (ix) is a true and correct list of any and all material
contacts, agreements, leases, arrangements or understandings, written or oral,
which Purchaser is a party, or by which any of its assets or properties are
legally bound,
(x) there are no judicial or administrative actions, suits or proceedings
pending or threatened, that might result in a material adverse change in the
condition (financial or otherwise), properties, assets, business or operations
of Purchaser or that question the validity of this Agreement,
(xi) neither the execution and delivery of this Agreement by Purchaser, nor
the consummation of the transactions set forth herein or contemplated hereby
will conflict with or result in any violation of or constitute a breach of or a
default under the Certificate of Incorporation or By Laws of Purchaser or under
any contract, instrument, agreement, understanding, mortgage, indenture, lease,
insurance policy, permit, concession, grant, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to or to
which Purchaser is a party, nor will it give rise to any right of acceleration
in the time for performance or any obligation of Purchaser under any contract or
instrument, nor will it result in the creation of any lien, charge, encumbrance
of any asset of Purchaser,
(xii) Purchaser has filed all federal, state, local and foreign tax returns
which are due or has obtained appropriate extensions with respect thereto and
all such returns are true and correct in all material respects as filed;
Purchaser has not received any notice of deficiency for assessment of additional
taxes and Purchaser is not a party to any action or proceeding by any
governmental authority for assessment or collection of taxes with respect to its
business; no deficiency assessment or proposed adjustment of Purchaser's
federal, state, or local or foreign taxes is pending, except for taxes incurred
by Purchaser in the ordinary course of business allocable to the most recent
taxable quarter; the Purchaser has no knowledge of any proposed liability for
any tax to be imposed upon its properties, assets, or business for which there
is no adequate reserve reflected in the balance sheet of Purchaser, as set forth
on Exhibit 2.01 (iv),
(xiii) Purchaser is acquiring the Share Ownership for investment purposes
and not with a view to any resale or distribution thereof. Purchaser represents
that the Share Ownership is being acquired in a transaction which is exempt from
the registration requirements of the Securities Act of 1933, as amended (the
"Act"), and that it understands that the Share Ownership must be held
indefinitely, unless subsequently registered under the Act or unless an
exemption from registration is available, including Rule 144 under the Act, and
that it must, accordingly, bear the economic risk of its investment for an
indefinite period of time,
(xiv) none of the stockholder's, directors, employees, officers of
Purchaser or any relative by blood or marriage, Affiliates, or Associates (as
defined in 2.01 (vii) (f)) of any of the foregoing, is currently a party to any
material transaction with Purchaser,
(xv) none of the warranties and representations made by Purchaser herein or
in the Exhibits or other documents related hereto, nor the financial statements
furnished by Purchaser nor any certificate or memorandum furnished or to be
furnished by Purchaser, contains or will contain any untrue statement of
material fact or omits or will omit to state any material fact necessary in
order to make the statements contained herein or therein not misleading, and all
representations and warranties of Purchaser contained herein are true and
correct,
(xvi) the Purchaser Shares are free and clear of all liens, claims,
pledges, and other encumbrances of any nature; the Purchaser Shares are not
subject to any contact, agreement, arrangement or understanding, written or
otherwise, which would adversely affect or otherwise prohibit or limit the
acquisition of the Purchaser Shares by the Shareholders, and
(xvii) Purchaser has timely filed all required reports and filings with the
Securities and Exchange Commission as required under the Securities Exchange Act
of 1934.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE ACQUIRED
CORPORATION AND THE SHAREHOLDERS
As of the date hereof and at Closing, the Acquired Corporation and each
Shareholder (limited to sub-paragraphs (xiv), (xvi), (xvii) and (xviii) below
only) do hereby represent and warrant to Purchaser as follows:
(i) the Acquired Corporation is a corporation duly organized, validly
existing and is good standing under the laws of the State of New Jersey and in
other jurisdictions where it conducts business, has full corporate power and
authority to execute and deliver this Agreement and has one subsidiary,
(ii) the authorized capital stock of the Acquired Corporation consists of
10,000,000 shares of common stock, no par value, and 1,000,000 share of
preferred stock, no par value.
(iii) the issued and outstanding Share Ownership Rights of capital stock of
the Acquired Corporation are set forth on Exhibit 3.01 (iii). In addition, (a)
except as set forth on Exhibit 3.01 (iii), there are no warrants, rights,
options, conversion privileges, stock purchase plans or other agreements or
undertakings which obligates the Acquired Corporation now or upon the occurrence
of some future event to issue additional shares of capital stock, (b) there are
no restrictions on the transfer of shares of capital stock of the Acquired
Corporation other than those imposed by relevant state and federal securities
laws, and (c) no holder of any security of the Acquired Corporation is entitled
to any preemptive or similar statutory or contractual rights, either arising
pursuant to an agreement or instrument to which the Acquired Corporation is a
party or which are otherwise binding on the Acquired Corporation. The Acquired
Corporation Shares are free and clear of any mortgage, lien, pledge, or other
encumbrance and are duly authorized, validly issued, fully paid and
non-assessable shares of capital stock of the Acquired Corporation,
(iv) the financial statements of the Acquired Corporation previously
delivered to Purchaser, which consists of an unaudited balance sheet as of June
2, 2000 and related statements of income for the periods then ended, are correct
and fairly present the financial condition of the Acquired Corporation for the
periods involved, and such statements were prepared in accordance with generally
accepted accounting standards consistently applied; except as set forth on
Exhibit 3.01 (v), the Acquired Corporation has no material liabilities, whether
due or to become due, and whether accrued or contingent, not reflected as part
of the financial statements of the Acquired Corporation, other than liabilities
incurred in the ordinary course of business since June 2, 2000 and other
liabilities which, in the aggregate, are not material to the business or
financial condition of the Acquired Corporation,
(v) except as reflected or reserved against the balance sheet of the
Acquired Corporation, as set forth on Exhibit 3.01 (iv) or as set forth on
Exhibit 3.01(v), the Acquired Corporation has no liabilities of any nature,
whether accrued, absolute, contingent or otherwise, including, without
limitation, tax liabilities and interest due or to become due. The Acquired
Corporation's accounts receivable are collectable in accordance with the terms
of such accounts, except to the extent of the reserve therefore in the Acquired
Corporation's balance sheet set forth on the Acquired Corporation 3.01 (iv),
(vii) except as otherwise disclosed on Exhibit 3.01 (v), since the date of
the financial statements set forth on Exhibit 3.01 (iv) to the present, there
have not been;
(a) any changes in the condition (financial or otherwise), assets,
liabilities, capitalization, business or business prospects of the Acquired
Corporation which, individually or in the aggregate, have been materially
adverse,
(b) any declaration or payment of any dividend or other distribution with
respect to the Acquired Corporation's capital stock,
(c) any direct or indirect redemption, purchase or other
acquisition of stock of the Acquired Corporation,
(d) any increases paid or agreed to be paid in the compensation, retirement
benefits or other commitments to officers, directors, employees, consultants or
agents,
(e) any damage or destruction (whether or not covered by insurance)
adversely affecting, in any material respects, any properties, business or
business prospects of the Acquired Corporation, and,
(f) any acquisition or disposition of assets or properties in any
transaction with any officer, director, shareholder or monthly salaried employee
of the Acquired Corporation or any relative by blood or marriage or any
Affiliate or Associate (as such terms are defined in Rule 405 promulgated under
the Securities Act of 1933, as amended) of any of them, or, except in the
ordinary course of business, any other acquisition or disposition of any assets
or properties of material value,
(viii) the assets reflected on the unaudited balance sheet of the Acquired
Corporation as of June 2, 2000 are owned free and clear of all liens, claims,
charges and encumbrances of any kind or nature, except to the extent disposed of
in the ordinary course of business since June 2, 2000 or as otherwise disclosed
on Exhibit 3.01 (v); all such assets, if any, characterized as inventory are
stated at no more than the lower of cost or market value and are, in all
material respects, usable and salable in the ordinary course of business; and
the assets of the Acquired Corporation include the following domain names, Get
Office Xxxxx.xxx, Get Xxxxxxxxx.xxx, Get Xxxx.xxx, Get Golf Xxxxxxxxx.xxx, Get
Xxxxxxxxx.xxx, Get XxxXxxx.xxx, Get XxxxXxxxx.xxx, and XxxXxxxx.xxx.
(ix) there are no collective bargaining agreements and other labor
agreements to which the Acquired Corporation is a party or by which it is
legally bound, and Exhibit 3.01 (ix) is a true and correct list or description
of all employment, profit sharing, deferred compensation, bonus, stock option,
stock purchase, pension, retainer, consulting, retirement, welfare or incentive
plans, labor contract agreements, labor arrangements or labor practices to which
the Acquired Corporation is a party or is legally bound,
(x) Exhibit 3.01 (x) is a true and correct list of any and all material
contacts, agreements, leases, arrangements or understandings, written or oral,
which the Acquired Corporation is a party, or by which any of its assets or
properties are legally bound,
(xi) there are no judicial or administrative actions, suits or proceedings
pending or threatened, that might result in a material adverse change in the
condition (financial or otherwise), properties, assets, business or operations
of Purchaser or that question the validity of this Agreement,
(xii) neither the execution and delivery of this Agreement by the Acquired
Corporation, nor the consummation of the transactions set forth herein or
contemplated hereby will conflict with or result in any violation of or
constitute a breach of or a default under the Certificate of Incorporation or By
Laws of the Acquired Corporation or under any contract, instrument, agreement,
understanding, mortgage, indenture, lease, insurance policy, permit, concession,
grant, franchise, license, judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to or to which the Acquired Corporation is a
party, nor will it give rise to any right of acceleration in the time for
performance or any obligation of the Acquired Corporation under any contact or
instrument, nor will it result in the creation of any lien, charge, encumbrance
of any asset of the Acquired Corporation,
(xiii) the Acquired Corporation has filed all federal, state, local and
foreign tax returns which are due or has obtained appropriate extensions with
respect thereto and all such returns are true and correct in all material
respects as filed; the Acquired Corporation has not received any notice of
deficiency for assessment of additional taxes and the Acquired Corporation is
not a party to any action or proceeding by any governmental authority for
assessment or collection of taxes with respect to its business; no deficiency
assessment or proposed adjustment of the Acquired Corporation's federal, state,
or local or foreign taxes is pending, except for taxes incurred by Purchaser in
the ordinary course of business allocable to the most recent taxable quarter;
the Acquired Corporation has no knowledge of any proposed liability for any tax
to be imposed upon its properties, assets, or business for which there is no
adequate reserve reflected in the balance sheet of the Acquired Corporation, as
set forth on Exhibit 3.01 (iv),
(xiv) the Shareholders are acquiring the Purchaser Stock for investment
purposes and not with a view to any resale or distribution thereof. The
Shareholders represent that the Purchaser Stock is being acquired in a
transaction which is exempt from the registration requirements of the Securities
Act of 1933, as amended (the "Act"), and that they understand that the Purchaser
Stock must be held indefinitely, unless subsequently registered under the Act or
unless an exemption from registration is available, including Rule 144 under the
Act, and that they must, accordingly, bear the economic risk of its investment
for an indefinite period of time,
(xv) none of the stockholder's, directors, employees, officers of the
Acquired Corporation or any relative by blood or marriage, Affiliates, or
Associates (as defined in 3.01 (vii) (f)) of any of the foregoing, is currently
a party to any material transaction with the Acquired Corporation (other than
for services as an employee, officer or director), the terms of which are
identified on Exhibit 3.01 (x),
(xvi) none of the warranties and representations made by the Shareholders
or the Acquired Corporation herein or in the Exhibits or other documents related
hereto, nor the financial statements furnished by the Acquired Corporation nor
any certificate or memorandum furnished or to be furnished by the Shareholders
or the Acquired Corporation or any of them, contains or will contain any untrue
statement of material fact or omits or will omit to state any material fact
necessary in order to make the statements contained herein or therein not
misleading, and all representations and warranties of the Shareholders and the
Acquired Corporation contained herein are true and correct,
(xvii) each respective Share Ownership Right is free and clear of all
liens, claims, pledges, and other encumbrances of any nature; to the best of
each Shareholder's knowledge, each respective Share Ownership Right is not
subject to any contact, agreement, arrangement, or understanding, written or
otherwise, which would adversely affect or otherwise prohibit or limit the
acquisition of the Share Ownership Right by the Purchaser, and
(xviii) each respective Shareholder acknowledges that (i) the Purchaser has
conducted limited operations since its inception and is a development stage
company, (ii) they have read, review and understand the financial statements of
Purchaser referenced herein, and (iii) none of the following have ever been
represented, guaranteed, or warranted to any Shareholder by Purchaser, or its
affiliates, agents, or employees or any other person, expressly or by
implication: (a) the approximate or exact length of time that he/she will be
required to remain an owner of the Purchaser Shares, or (b) value of the
Purchaser Shares, or (c) the amount of profit to be realized as a result of
receiving the Purchaser Shares.
ARTICLE V
CONDITIONS PRECEDENT
5.01. This Agreement will be subject to the Controlling Shareholders, the
Acquired Corporation and Purchaser executing the employment agreements of the
Controlling Shareholders in the form and content presented to the parties on
this date.
5.02. This effectiveness of this Agreement will be subject to the approval
by the board of directors of both the Acquired Corporation and Purchaser.
ARTICLE VI
CLOSING OF TRANSACTION
6.01. Delivery of Documents. The parties will deliver duly executed
originals of the Agreement to an escrow agent selected by the parties ("Escrow
Agent"). The Escrow Agent will maintain the Agreements in trust pending receipt
of written instructions from an officer of the Purchaser and from an officer of
the Acquired Corporation that all of the conditions described in Section 5.01,
Section 5.02, and Section 6.03 have been complied with to the satisfaction of
each such party, and authorizing the Escrow Agent to release the Agreements to
the respective parties.
6.02 Closing of Transaction. Subject to the fulfillment of the conditions
precedent described Section 5.01, Section 5.02, and the conditions described in
Section 6.03 below, the closing of the transaction contemplated by this
Agreement ("Closing") will occur on or before March 15, 2001 ("Closing Date"),
at a mutually agreeable location.
6.03. Conditions of Closing; Delivery of Documents. The closing of this
transaction shall be subject to the following conditions:
(i). All representations and warranties made by Purchaser herein shall be
true and accurate as of the Closing as though such representations and
warranties were then made in exactly the same language by such parties
regardless of knowledge or lack thereof by such parties or changes beyond their
control; and the Purchaser will deliver to the Acquired Corporation at Closing
the certification signed by the President of the Purchaser dated as of the date
of the Closing in substantially the same form as the text provided in Exhibit
6.02(i),
(ii). All representations and warranties made by Acquired Corporation
herein shall be true and accurate as of the Closing as though such
representations and warranties were then made in exactly the same language by
such parties regardless of knowledge or lack thereof by such parties or changes
beyond their control; and the Acquired Corporation will deliver to the Purchaser
at Closing the certification signed by Chairman of the Purchaser dated as of the
date of the Closing in substantially the same form as the text provided in
Exhibit 6.02(ii), and
(iii). The delivery by the Acquired Corporation to the Purchaser all of the
books and records of the Purchaser, including without limitation, and its
corporate governance materials (articles of incorporation, by-laws and
resolutions and minutes of shareholder and board meetings, stock and warrant
ledgers.
6.04. Cancellation of Promissory Note. Upon Closing, all outstanding
obligations of the Acquired Corporation, or its subsidiary, Xxxxxxxx.xxx, Inc.,
in favor of the Purchaser will the immediately terminate.
6.05 Appointment to Board of Directors of Purchaser. Xxxxxxx Xxxxxxxxxxxxx
will be appointed to the Board of Directors of Purchaser as soon as practicable
after the Closing.
6.06. Termination of Agreement. In the event the parties are unable to
effect a Closing of the transactions contemplated herein on or before the
Closing Date, then in such event; (i) this Agreement shall be deemed null and
void, (ii) all instruments and consideration previously delivered to the Escrow
Agent shall be returned to the delivering party by the Escrow Agent, and (iii)
except for amounts previously loaned by the Purchaser to the Acquired
Corporation, neither party will have any claims or recourse against the other
party.
ARTICLE VII
RELEASE BY THE CONTROLLING SHAREHOLDERS
Effective as of the Closing Date, the Controlling Shareholders do hereby
fully and unconditionally release and discharge any and all, debts, claims and
causes of actions which each party, their heirs, successors and assigns have or
may have at any time against Acquired Corporation and its officers, directors,
employees, counsel, agents and shareholders, including those claims relating to
any past due wages or other compensation, specifically excluding however,
certain outstanding liabilities of the Acquired Corporation in favor of the
Controlling Shareholders (or their affiliates) as identified on Exhibit 3.01(v).
ARTICLE VIII
INDEMNIFICATION BY THE PARTIES AGAINST LIABILITIES
8.01. Indemnification by the Purchaser. Purchaser hereby indemnifies and
holds harmless the Acquired Corporation and its respective heirs, transferees,
assigns, officers, directors, counsel, agents and shareholders ("Shareholder
Indemnitees") from any and all claims, causes of actions, proceedings,
investigations judgments, damages, settlements and legal and other expenses,
including legal fees, as of when occurred arising out of or in any way connected
with (i) the activities of the Purchaser prior to the execution of this
Agreement, and (ii) the breach of any representation, warranty, covenant or
condition of the Purchaser.
The Shareholder Indemnitees shall give the Purchaser prompt notice of any
claim asserted or threatened against the Shareholder Indemnitees on the basis of
which such Purchaser Indemnitee intends to seek indemnification from the
Purchaser as provided herein. However, the failure to provide such notice to the
Purchaser under this section shall not obviate the obligations and
responsibilities of the Purchaser.
The Purchaser Indemnitees shall give the Acquired Corporation and
Controlling Shareholders prompt notice of any claim asserted or threatened
against the Purchaser Indemnitees on the basis of which such Purchaser
Indemnitee intends to seek indemnification from the Acquired Corporation or
Controlling Shareholders as provided herein. However, the failure to provide
such notice to the Acquired Corporation or the Controlling Shareholders under
this section shall not obviate the obligations and responsibilities of the
Acquired Corporation or Controlling Shareholders.
ARTICLE IX
NOTICES
Any notice or other communication required or permitted hereunder shall be
made in writing, and shall be deemed to have been given if placed in the United
States mail, registered and certified, postage prepaid, or if personally
delivered, addressed as follows;
Purchaser: American Precious Metals, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxx, Xxx Xxxxxx 00000
Acquired Corporation: TLM Industries, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Controlling 00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx: Xxxxxxxxxxx, Xxx Xxxxxx 00000
ARTICLE X
ENTIRE AGREEMENT, MODIFICATION, WAIVER AND HEADINGS
10.01. Entire Agreement; Modification. This Agreement constitutes the
entire agreement between the parties hereto pertaining to the subject matter
herein and supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions among the parties, written or otherwise, including
the Intent of Share Exchange dated November 2, 2000 by and between the Purchaser
and the Acquired Corporation ("Letter of Intent"). No supplement, modification
or waiver or termination of this Agreement shall be binding unless executed in
writing by the party to be bound thereby. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provision hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided.
10.02. Headings. Section captions or headings are included herein for
convenience purposes only and are not to be construed as an accurate description
of the contents therein.
10.03. Incorporation by Reference. All exhibits, schedules and documents
referred to in this Agreement are incorporated herein for all purposes.
10.04. Multiple Counterpart Execution; Governing Law. This Agreement may be
executed in multiple counterparts, which each counterpart constituting a binding
agreement between the signatory parties, and with all such counterparts
constituting an integrated document. This Agreement shall be construed and
governed by the laws of the State of New Jersey.
10.05. Binding Effect. The terms and provisions herein shall be binding on
and inure to the benefit or the parties hereto, and their respective
transferees, successors and assigns.
10.06. Survival of Representations and Warranties. All representations,
warranties, and covenants made by the parties herein shall survive the execution
of this Agreement and shall be forever enforceable.
10.07. Severability. If any provision of this Agreement is invalid, illegal
or enforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
IN WITNESS WHEREOF, the parties have caused this Agreement to be effective
all as of the date set forth above.
PURCHASER
American Precious Metals, Inc.
/s/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
President
ACQUIRED CORPORATION
TLM Industries, Inc.
/s/ Xxxxxxx Xxxxxxxxxxxxx
-------------------------
Xxxxxxx Xxxxxxxxxxxxx
Chairman
SHAREHOLDERS
/s/ Xxxxxxx Xxxxxxxxxxxxx
-------------------------
Xxxxxxx Xxxxxxxxxxxxx
/s/ Xxxxxxx Xxxxx
-----------------
Xxxxxxx Xxxxx
/s/ Xxxxxx X'xXxxxx
-------------------
Xxxxxx X'xXxxxx
/s/ Xxxx Xxx X'xXxxxx
---------------------
Xxxx Xxx X'xXxxxx
/s/ Xxxxxx X'xXxxxx
-------------------
Xxxxxx X'xXxxxx
/s/ Xxxxxxx Xxxxxxxx
--------------------
Xxxxxxx Xxxxxxxx
EXHIBIT 1.02
SHARES OF COMMON STOCK OF PURCHASER
RECEIVED BY EACH COMMON SHAREHOLDER
Name of Shareholder Number of Purchaser Shares Received
--------------------------------------------------------------------
Xxxxxxx Xxxxxxxxxxxxx 975,000 shares
Xxxxxxx Xxxxx 975,000 shares
Xxxxxx X'Xxxxxx 4,000 shares
Xxxx Xxx X'Xxxxxx 16,000 shares
Xxxxxx X'Xxxxxx 20,000 shares
Xxxxxxx Xxxxxxxx 20,000 shares
SHARES OF COMMON STOCK OF PURCHASER
RECEIVED BY EACH PREFERRED SHAREHOLDER
Name of Shareholder Number of Purchaser Shares Received
--------------------------------------------------------------------
Xxxxxxx Xxxxxxxxxxxxx 607,500 shares
Xxxxxxx Xxxxx 607,500 shares
EXHIBIT 1.03
RIGHTS OF COMMON STOCK OF ACQUIRED
CORPORATION ASSIGNED BY EACH COMMON SHAREHOLDERS
Name of Shareholder Number of Shares/Rights Delivered
------------------------------------------------------------------
Xxxxxxx Xxxxxxxxxxxxx 975,000 shares
Xxxxxxx Xxxxx 975,000 shares
Xxxxxx X'xXxxxx 4,000 shares
Xxxx Xxx X'xXxxxx 16,000 shares
Xxxxxx X'xXxxxx 20,000 shares
Xxxxxxx Xxxxxxxx 20,000 shares
RIGHTS OF PREFERRED STOCK OF ACQUIRED
CORPORATION ASSIGNED BY EACH PREFERRED SHAREHOLDERS
Xxxxxxx Xxxxxxxxxxxxx 100,000 shares
Xxxxxxx Xxxxx 100,000 shares
EXHIBIT 2.01(iii)
ISSUED AND OUTSTANDING SHARES OF PURCHASER
1. Number of shares of common stock, par value $.00001, issued and
outstanding of Purchaser, as of the date hereof and as of the Closing Date:
10,570,544.
EXHIBIT 2.01 (v)
CLAIMS AGAINST ASSETS
None.
EXHIBIT 2.01 (ix)
MATERIAL CONTRACTS
None other than (i) the Finder's Fee Agreement dated June 1999 by and
between American Precious Metals, Inc and Birch Mountain Resources, LTD, and
(ii) the Letter of Intent.
EXHIBIT 3.01(iii)
ISSUED AND OUTSTANDING SHARES OF ACQUIRED CORPORATION
1. Number of Shares Ownership Rights to common stock, no par value,
outstanding of the Acquired Corporation, as of the date hereof and as of the
Closing Date: 2,010,000.
2. Number of Share Ownership Rights to preferred stock, no par value,
outstanding of the Acquired Corporation, as of the date hereof and as of the
Closing Date: 200,000.
3. Two (2) employees of the Acquired Corporation received stock grants in
the amount of 20,000 shares each after each such employee remains with the
Acquired Corporation for one (1) full year.
EXHIBIT 3.01 (viii)
CLAIMS AGAINST ASSETS
In addition to the financial obligations set forth on Exhibit 3.01(x), the
following outstanding obligations are not set forth in the financial statements
of the Acquired Corporation as referenced herein:
1. An outstanding obligation to pay Xxxxxxx Xxxx the sum of $2,500.00,
2. An outstanding obligation to pay Xxxxxxx Xxxxxxxxxxxxx the sum of
$8,000,
3. Two loans from American Express and Key Bank respectively, in the
original principal amount of $50,000 each, of which approximately $87,118 of the
collective principal amount remains outstanding, and
4. An outstanding obligation to pay Xxxxxxx Xxxxx the sum of $3,000.
In addition, as of the Closing Date, the Accounts Payable of the Acquired
Corporation is approximately $160,000.
EXHIBIT 3.01 (ix)
EMPLOYMENT/OTHER AGREEMENTS
Employment Agreements of Xxxxxxx Xxxxxxxxxxxxx and Xxxxxxx Xxxxx both of
which are dated of even date herewith.
EXHIBIT 3.01 (x)
MATERIAL CONTRACTS
The following are the material contracts of the Acquired Corporation:
(i) the employment agreements disclosed on Exhibit 3.01(ix),
(ii) the Letter of Intent,
(iii) An Equipment Lease Agreement dated August 16, 2000 by and between
Toshiba Easy Lease and TLM Industries, Inc. for a voice processing system,
(iv) A Master Equipment Lease dated July 27, 2000 by and between DDI
Leasing Inc. and TLM Industries, Inc. for certain computer equipment,
(v) A Vehicle Lease Agreement dated April 13, 1998 by and between Xxxxxxx
Automotive, Inc. and Xxxxxxx Xxxxx and Xxxxxx Xxxxx that has been assumed by the
Acquired Corporation.
(vi) A car loan in the name of Xxxxxxx Xxxxx and Xxxxxx Xxxxx for a
automobile used by Xxxxxxx Xxxxx that has been assumed by the Acquired
Corporation,
(vii) An equipment lease agreement for a Xxxxxx copier,
(viii) Two loans from American Express and Key Bank respectively, in the
original principal amount of $50,000 each, of which approximately $87,118 of the
collective principal amount remains outstanding. and
(ix) A sublease entered into by and among XxxXxxxx.xxx, Colonial Hardware,
and Xxxxx Xxxxxxx for the Acquired Corporation's office space.
EXHIBIT 3.01 (v)
CERTAIN RELATIONSHIPS
Xxxxxx D'oVvido and Xxxxxx D'oVvido are directors of the Acquired
Corporation and are nephews of Xxxxxxx Xxxxxxxxxxxxx.
EXHIBIT 6.02 (i)
CERTIFICATE CONCERNING ACCURACY
Pursuant to Section 6.01(i)
The undersigned hereby certifies, individually and as an officer and
director of Purchaser and pursuant to Section 6.01(i) of the Agreement that the
representations and warranties contained in the Agreement were accurate when
made, and are accurate as of this date (the date of Closing), as though such
representations and warranties were made as of the Closing in exactly the same
language by the Purchaser regardless of knowledge or the lack thereof by such
parties or changes beyond their control, and as of the Closing have performed
and complied with all covenants and agreements and satisfied all conditions
required to be performed and complied with by any of them at or before such time
by the Agreement.
IN WITNESS WHEREOF, the undersigned have executed this document this the
date set opposite their signature below.
American International Ventures, Inc. f/k/a
American Precious Metals, Inc.
______________________ _______________
Xxxx Xxxxxxx Date
President
EXHIBIT 6.02 (ii)
CERTIFICATE CONCERNING ACCURACY
Pursuant to Section 6.01(ii)
The undersigned hereby certifies, individually and as officers and
directors of the Acquired Corporation and pursuant to Section 6.01(ii) of the
Agreement that the representations and warranties contained in the Agreement
were accurate when made, and are accurate as of this date (the date of Closing),
as though such representations and warranties were made as of the Closing in
exactly the same language by the Acquired Corporation and Controlling
Shareholders regardless of knowledge or the lack thereof by such parties or
changes beyond their control, and as of the Closing have performed and complied
with all covenants and agreements and satisfied all conditions required to be
performed and complied with by any of them at or before such time by the
Agreement.
IN WITNESS WHEREOF, the undersigned have executed this document this the
date set opposite their signature below.
Xxxxxxx Xxxxxxxxxxxxx Date
Xxxxxxx Xxxxx Date
TLM Industries, Inc.
Xxxxxxx Xxxxxxxxxxxxx Date
Chairman
