1
Exhibit 6.1
ACQUISITION AGREEMENT
AGREEMENT made this 12th day of September, 2000, by and between Diamond
Discoveries International Corp., with a principal place of business at 000 Xxxx
00xx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 (the "Purchaser"), Xxxxx
Xxxxxxxxx, whose address is 000 Xxxxxxxxxx, Xxx X'xx, Xxxxxx X0X 0X0 ("Seller"),
X. X. Xxxxxxx whose address is 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx X0X 0X0 ("Xxxxxxx") and Tandem Resources Ltd. ("Tandem") whose address
is 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx X0X 0X0.
WITNESSETH: In consideration of the mutual covenants, agreements,
representations and warranties herein contained, and intending to be legally
bound, the parties agree as follows:
ARTICLE I
SALE AND PURCHASE OF PROPERTIES
1.1 Transfer of Properties. Subject to the terms and conditions of this
Agreement, Purchaser in reliance upon the representations and warranties of
Seller made herein and in the schedules annexed hereto, will, at the Closing
(hereinafter defined), acquire from Seller, and Seller, in reliance upon the
representations and warranties of Purchaser made herein and in the schedules
annexed hereto, will, at the Closing transfer and convey to purchaser the
properties whose legal descriptions are set forth on Schedule 1 hereto (the
"Properties") along with all mining and/or exploration permits relating thereto.
1.2 Encumbrances. The sale and transfer of the Properties shall, at the
time of Closing, be free and clear of all obligations, security interests,
liens, and encumbrances, except as described in the Schedule of Encumbrances,
Schedule 2 hereto, and other schedules attached hereto, or unless expressly
assumed in writing by Purchaser.
1.3 Purchase Price. The purchase price for the Properties shall be
2,000,000 shares of common stock of the Purchaser (the "Acquisition Shares") and
$60,000 Canadian (collectively, with the Acquisition Shares, the "Purchase
Price"). In accordance with prior agreements between the Seller and Xxxxxxx, the
Purchase Price shall be allocated among them as follows: (i) 1,000,000 of the
Acquisition Shares each to the Seller and Xxxxxxx; and (ii) $25,000 Canadian to
Seller and $35,000 Canadian to Xxxxxxx. The Purchase Price shall be payable at
Closing, as follows: (i) delivery of the cash portion of the Purchase Price in
cash, certified check or by wire transfer; and (ii) delivery of the Acquisition
Shares.
1.4 Properties. Seller shall convey good and marketable title at the
Closing to the Properties, and more particularly described in the Appendix
attached to this Agreement comprises mineral permits issued by the Government of
Quebec and registered in the name of Seller. Seller hereby agrees to deliver, at
Closing, a transfer duly signed by Seller which will enable Purchaser to
register title to the permits in the Province of Quebec. A Copy of this transfer
has already been furnished to the Purchaser or its agents.
1.5 Closing. The consummation of the transactions contemplated herein (the
"Closing") shall take place at 10:00 A.M. on September 12th, 2000 (the "Closing
Date") or such later date as may be
1
2
agreed upon by the parties. The Closing shall take place at the offices of Xxxxx
& Schloss LLP, 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
1.6 Access and Information. Between the date hereof and Closing, Seller
shall give Purchaser and its accountants, counsel, and other representatives
access, during normal business hours, to Seller's books and records relating to
the Properties. Purchaser and its agents shall keep such information
confidential until the sale is closed.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as of the date hereof and as
of Closing, the following:
2.1 Authority. Seller has full power and authority to sell the Properties.
2.2 Compliance. Neither the execution and delivery of this Agreement, nor
the consummation by Seller of any of the transactions contemplated hereby will
result in a breach of any applicable statute or regulation, or of any
administrative or court order or decree; nor will such compliance conflict with
or result in the breach of any term, provision, covenant or condition of any
agreement or other instrument to which Seller is a party or by which he may be
bound.
2.3 Tax Returns and Tax Audits. Seller has filed with the appropriate
governmental agencies all required tax returns and tax reports relating to the
Properties. Seller has paid all taxes, assessments, fees, and other governmental
charges levied upon him relating to the Properties, other than those not yet due
and payable or delinquent.
2.4 Litigation. No suit, action, administrative, arbitration, or other
legal proceeding or governmental investigation is pending, or to Sellers
knowledge is threatened against the Properties. There are no outstanding
judgments, decrees, or orders against the Seller which affects the Properties in
any way.
2.5 Effect of Agreement. The terms and conditions of this Agreement and
all other instruments and agreements to be delivered by Seller to Purchaser
under the terms hereof are valid, binding, and enforceable against the Seller in
accordance with their terms, subject only to the applicable bankruptcy,
moratorium, and other laws generally affecting the rights and remedies of
creditors.
2.6 Good Title. Seller has and shall transfer to Purchaser at Closing,
good and marketable title to the Properties, free and clear of all security
interests, encumbrances or liens, subject only to matters set forth on Schedule
2 hereto. Such Schedule is a true and complete list of all security interests,
mortgages, encumbrances, and liens affecting the Properties.
2.7 Investment Representation. The Seller represents and confirms to the
Purchaser that he (1) is an accredited investor within the meaning of Rule
501(a) under the Securities Act of 1933, as amended (the "Securities Act") or,
if not such an accredited investor, has alone or together with a purchaser
representative within the meaning of Rule 501(h) under the Securities Act, such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits
2
3
and risks of an investment in the securities of the Purchaser of the type
contemplated by this Agreement; (2) is aware of the limits on resale of the
Acquisition Shares imposed by virtue of the nature of the transaction; and (3)
will receive and accept at the Closing, the Acquisition Shares for investment,
and without any view to the sale, resale or other distribution thereof in any
manner that is in violation of the Securities Act. The certificates representing
the Acquisition Shares, when delivered to the Seller at the Closing, may have
appropriate orders restricting transfer placed against them on the stock records
of the Purchaser and/or at the transfer agent for such securities and may have
placed upon them a legend in substantially the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND MAY BE SOLD, TRANSFERRED OR ENCUMBERED ONLY PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, PURSUANT
TO A NO-ACTION LETTER FROM THE STAFF OF THE SECURITIES AND EXCHANGE
COMMISSION OR PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
The Seller agrees not to attempt any transfer of any of the Acquisition Shares
without first complying with the substance of said legend.
2.8 Securities and Exchange Commission Filing. Seller agrees to cooperate
with the Purchaser in connection with its filing of a registration statement on
Form 10-SB with the Securities and Exchange Commission (the "Registration
Statement") and complete Officers' Directors' and Principal Shareholders'
Questionnaires in connection therewith.
2.9 Representations and Warranties. No representation or warranty by
Seller in this Agreement or any documents provided hereunder contains or will
contain any untrue statement of material fact or omit to state any material fact
necessary to make the statements contained herein and therein not misleading.
All representations and warranties made by Seller in this Agreement and all
documents provided hereunder shall be true and correct as of the date of Closing
with the same force and effect as if they had been made on and as of such date.
2.10 Due Performance. Seller has in all material respects performed all
obligations required to be performed by it under, and is not in default in any
material respect under, or in violation in any material respect of, any
agreement, lease, mortgage, note, bond, indenture, license, or other documents
or undertaking, oral or written, relating to the Properties to which he is a
party or by which he is bound, or by which the Properties may be materially
affected. Except as expressly set forth on the Statement of Issues annexed
hereto as Schedule 3, Seller is not in violation or default in any material
respect of any judicial, administrative, or governmental order, writ, rule,
regulation, injunction, or decree relating to the Properties. The execution and
delivery of this Agreement, and the consummation of the transactions
contemplated hereby, will not result in any violation or default referred to in
this paragraph.
3
4
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
3.1 Corporate Organization. Purchaser is duly organized, validly existing
and in good standing under the laws of the State of Delaware, and has full power
and authority to enter into this Agreement and perform the transactions
contemplated herein.
3.2 Capitalization. The authorized capital stock of the Purchaser consists
of 80,000,000 shares of common stock, $.001 par value and 20,000,000 shares of
preferred stock, par value $.001 per share. There is no other capital stock
authorized for issuance. As of the date hereof, 15,000,000 shares of common
stock were validly issued and outstanding, fully paid, and non-assessable with
no preferred stock outstanding. Other than the Acquisition Shares, there are no
outstanding options, warrants, or other rights, agreements, or commitments
(contingent or otherwise) obligating the Purchaser to issue any additional
shares of capital stock.
3.3 Acquisition Shares. The Acquisition Shares, when issued in accordance
with the terms of this Agreement, will be validly issued fully paid, and
non-assessable.
3.4 Corporate Authority. The execution and delivery of this Agreement and
the carrying out of the provisions hereof have been duly authorized by
Purchaser's Board of Directors and Purchaser shall furnish to Seller, duly
certified copies of such authorizing resolutions. This Agreement is binding upon
and enforceable against Purchaser in accordance with its terms and is not in
violation of the provision of any judicial, governmental or administrative
decree, order, writ, injunction, or judgment, or in conflict with or will result
in the breach of, or constitute a default under, Purchaser's Certificate of
Incorporation or bylaws or any capital stock provision to which Purchaser may be
subject, or any mortgage, indenture, contract, agreement, or other instrument to
which Purchaser is a party or by which it may be bound.
3.5 Binding Nature. This Agreement shall be, when duly executed and
delivered, a legal and binding obligation of Purchaser, enforceable in
accordance with its terms.
3.6 Representations and Warranties. No representation or warranty by
Purchaser in this Agreement contains or will contain any untrue statement of
material fact or omit to state a material fact necessary to make the statements
contained herein not misleading. All representations and warranties made by
Purchaser in this Agreement shall be true and correct as of Closing with the
same force and effect as if they had been made on and as of such date.
3.7 Compliance with Securities Laws. To the best of Purchaser's knowledge,
neither Purchaser nor any officer, director, affiliate, or controlling person of
Purchaser has committed any violation, or been in any way in contravention, of
any law, rule or regulation governing transactions in securities, in connection
with the transactions herein.
3.8 Inspection and Value. Purchaser has formed its own opinion as to the
value of the Properties being purchased hereunder. The parties agree that
Seller's warranties include only the express written warranties that are
contained in this Agreement. The parties acknowledge that Purchaser has
inspected such Properties and Seller has given Purchaser ample opportunity to
conduct such inspections.
4
5
3.9 No Litigation. No actions or proceedings are pending or, to
Purchaser's best knowledge, threatened before any court, administrative
authority, or other authority that might materially or adversely affect
Purchaser's ability or right to perform all of its obligations hereunder.
ARTICLE 4
REPRESENTATIONS OF XXXXXXX
4.1 INVESTMENT REPRESENTATION. Xxxxxxx represents and confirms to the
Purchaser that he (1) is an accredited investor within the meaning of Rule
501(a) under the Securities Act or, if not such an accredited investor, has
alone or together with a purchaser representative within the meaning of Rule
501(h) under the Securities Act, such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the securities of the Purchaser of the type contemplated by this
Agreement; (2) is aware of the limits on resale of the Acquisition Shares
imposed by virtue of the nature of the transaction; and (3) will receive and
accept at the Closing, the Acquisition Shares for investment, and without any
view to the sale, resale or other distribution thereof in any manner that is in
violation of the Securities Act. The certificates representing the Acquisition
Shares, when delivered to Xxxxxxx at the Closing, may have appropriate orders
restricting transfer placed against them on the stock records of the Purchaser
and/or the transfer agent for such securities and may have placed upon them a
legend in substantially the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND MAY BE SOLD, TRANSFERRED OR ENCUMBERED ONLY PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, PURSUANT
TO A NO-ACTION LETTER FROM THE STAFF OF THE SECURITIES AND EXCHANGE
COMMISSION OR PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
Xxxxxxx agrees not to attempt any transfer of the Acquisition Shares without
first complying with the substance of said legend.
4.2 Securities and Exchange Commission Filing. Xxxxxxx agrees to cooperate
with the Purchaser in connection with its filing of the Registration Statement
and complete Officers' Directors' and Principal Shareholder Questionnaires in
connection therewith.
4.3 Representations and Warranties. No representation or warranty by
Xxxxxxx in this Agreement or any documents provided hereunder contains or will
contain any untrue statement of material fact or omit to state any material fact
necessary to make the statements contained herein and therein not misleading.
All representations and warranties made by Xxxxxxx in this Agreement and all
documents provided hereunder shall be true and correct as of the date of Closing
with the same force and effect as if they had been made on and as of such date.
5
6
ARTICLE 5
REPRESENTATION OF TANDEM
5.1 THRESHOLD AMOUNT. Tandem hereby gives the exclusive rights to
Purchaser to any financing that Tandem may require te execute its option to
acquire a 40% interest in the Properties which are the subject of this
Agreement. Purchaser shall have twenty-one (21) days from the date that it
notifies Tandem that it has expended $5.0 million on exploration, to negotiate a
financing agreement with Tandem for the $2.0 million required to exercise the
option. Such financing will be subject to the approval of the appropriate
regulatory authorities.
Should no agreement be reached in the twenty-one (21) days, the financing
exclusivity extended to Purchaser will become null and void.
ARTICLE 6
LIABILITIES
6.1 No Assumption of Liabilities.
(a) Seller acknowledges that Purchaser is acquiring the Properties
hereunder without any assumption of Seller's liabilities except to the extent
expressly provided herein. Seller covenants that he shall fully and timely
satisfy all his present liabilities to creditors not assumed by Purchaser
hereunder; and
(b) There are no undisclosed liabilities other than as stated in
this Agreement or Schedules annexed hereto.
ARTICLE 7
CONDITIONS
7.1 Conditions to Seller's Obligations. Seller's obligations to complete
the Closing hereunder are, at his option, subject to the following conditions:
(a) All Purchaser's representations and warranties contained in this
Agreement shall be true in all material respects as of and at the Closing.
(b) Purchaser shall have performed and complied with all of its
agreements, terms, and conditions under this Agreement on or before the Closing.
(c) At the Closing, the Purchaser shall have in its bank account,
from the proceeds of an offering pursuant to Rule 504 of Regulation D of the
Securities Act, approximately U.S.$250,000 in cash, less any fees expended in
connection with the offering, this Agreement and the Registration Statement,
including all professional fees.
6
7
(d) At the Closing, Purchaser shall have entered into an agreement
with the Seller and/or his operating company, Prospecting Geophysics Ltd, to
operate the Properties in the form of Exhibit 1, hereto.
(e) At the Closing, the Purchaser shall have assigned to Seller and
Xxxxxxx an aggregate of one (1%) percent of the net smelter interest in the
Properties (the "Smelter Interest"), one half of which shall be payable over the
first $50,000,000 Canadian in revenues. The Smelter Interest or Gross Proceeds
of Production interest would be eliminated at such time as Seller and Xxxxxxx
receive, in the aggregate, payment of $10,000,000 Canadian. The Net Smelter
interest and Gross Proceeds of Production is defined in Schedule 4 attached
hereto.
(f) At the Closing, the Purchaser shall have delivered to Tandem an
option to purchase forty (40%) percent of the Properties, in the form of Exhibit
3 hereto (the "Tandem Option"), the exercise of which shall be conditioned upon
(i) the Purchaser having expended $5,000,000 Canadian (the "Threshold Amount");
(ii) Tandem paying the Purchaser $2,000,000 Canadian in connection with the
mining of the Properties; and (iii) within sixty (60) days of demonstrating that
the Threshold Amount has been expended, the Purchaser and Tandem entering into a
joint venture agreement to operate the Properties.
(g) Seller shall have received an opinion of Purchaser's counsel,
dated the Closing Date, in form and substance reasonably satisfactory to
Seller's counsel, stating that:
(i) Purchaser is a corporation duly organized and existing in
good standing under the laws of the State of Delaware.
(ii) Purchaser has full power and authority to make, execute,
deliver, and perform this Agreement, all corporate and other proceedings
required to be taken by Purchaser, its directors and shareholders to authorize
Purchaser to enter into and carry out this Agreement and the transactions
contemplated hereby have been duly and properly taken; and this Agreement
constitutes a valid obligation binding upon Purchaser in accordance with its
terms;
(iii) The execution, delivery, and consummation of this
Agreement does not conflict with, result in a breach of, or constitute a default
under, Purchaser's Articles of Incorporation or bylaws, or any material
agreement or instrument of which such counsel has knowledge and to which
Purchaser is a party or by which it is bound.
(h) Purchaser shall not be in bankruptcy or similar proceedings.
7.2 Conditions to Purchaser's Obligations. Purchaser's obligations to
complete the Closing under this Agreement are, at its option, subject to
fulfillment by Seller of each of the following conditions:
(a) All representations and warranties of the Seller contained in
this Agreement shall be true in all material respects as of and at the Closing
Date with the same effect as if they had been made on and as of Closing, except
as otherwise contemplated or specifically permitted by the terms of hereof.
(b) Seller shall have performed and complied with all of his
agreements, terms, and conditions under this Agreement on or before the Closing
Date.
7
8
(c) Purchaser shall have received an opinion of Seller's counsel,
dated the Closing Date, in form and substance reasonably satisfactory to
Purchaser's counsel stating that:
(i) Seller has the full power and authority to make, execute,
deliver, and perform this Agreement and this Agreement constitutes a valid
obligation binding upon Seller in accordance with its terms.
(ii) At the Closing, Purchaser shall receive good and
marketable title to the Properties being sold and transferred hereunder, free
and clear of all security interests, encumbrances, liens, or other interests,
subject only to matters expressly set forth herein or in the Schedule of
Encumbrances as annexed hereto as Schedule 2.
(iii) After diligent investigation, counsel does not know of
any litigation proceeding or governmental investigation pending or threatened
against or relating to the Properties (other than as set forth in Schedule 3
hereto, Statement of Issues).
(iv) The execution, delivery, and consummation of this
Agreement does not conflict with, result in the breach of, or constitute a
default under any material agreement or instrument of which counsel has
knowledge and to which Seller is a party or by which he is bound.
(v) After diligent investigation, counsel does not know of
anything materially and adversely affecting the Properties as a result of any
transaction, labor dispute, or discussion.
(vi) Seller has complied with all applicable laws and
regulations applicable to the transactions contemplated to be performed by him
hereunder.
(vii) Neither the execution and delivery hereof, nor Seller's
compliance with the terms and provisions hereof will result in the breach of any
applicable statute or regulation, or of any administrative or court order or
decree, nor will such compliance conflict with or result in the breach of any of
the terms, provisions, covenants, or conditions of any agreement or other
instruments to which Seller is a party, or by which he is or may be bound.
(viii) The Properties are free and clear of all perfected,
filed, and recorded liens, charges, and encumbrances, except as otherwise
specifically disclosed in this Agreement and the Schedules attached thereto,
except that Seller's counsel shall not be required to state any opinion in
respect to the title of any real property included in the Properties. The
instruments of assignment, transfer, and conveyance of the Properties to
Purchaser comply in all respects with the terms of this Agreement, and are
sufficient to vest in Purchaser all of Seller's right, title, and interest in
respect to all of the Properties.
(ix) This Agreement and all of the instruments and agreements
delivered by Seller to Purchaser on the date hereof are legal, valid, and
binding obligations of Seller, enforceable in accordance with their terms,
subject only to the rights and remedies of creditors arising under applicable
bankruptcy, moratorium, and other laws.
(x) There is no suit, action or legal, administrative,
arbitration or other proceeding or governmental investigation, or any material
change in the zoning or building ordinances affecting any of the Properties,
pending or, to the best of counsel's knowledge, after due inquiry, threatened
against Seller, which might materially or adversely affect the transfer of the
Properties by the Seller;
8
9
(d) Seller shall have delivered to Purchaser all other instruments
and documents that Purchaser shall reasonably request for the purpose of further
perfecting its title in the Properties.
(e) Tandem shall have delivered the Diamond Discovery Option to the
Purchaser, Exhibit 2 hereof.
(f) Seller shall not be in bankruptcy or similar proceedings.
7.3 Waivers and Consents. Seller shall use his best efforts to obtain all
written waivers and consents that are required, or reasonably requested by
Purchaser, in connection with the sale of the Properties in accordance with the
terms of this Agreement.
7.4 Removal of Liens. At or before the Closing, Seller will obtain valid,
binding, and enforceable releases, satisfactions, and discharges, as the case
may be, of all the liens, charges, and encumbrances affecting the Properties,
except those expressly assumed and accepted by Purchaser hereunder.
ARTICLE 8
CLOSING OBLIGATIONS
8.1 Seller's Obligations at Closing. At the Closing, Seller shall execute
and deliver to Purchaser:
(a) The deeds with respect to the Properties as provided above,
together with an affidavit of title and all other instruments that Purchaser's
title insurance company may reasonably request in connection with its insuring
of the title; and all other instruments, and documents of conveyance and
transfer that may be necessary or appropriate to convey and transfer to
Purchaser the Properties.
(b) opinion of Seller's counsel as provided above.
(c) All other instruments and documents elsewhere required herein.
(d) The current original tax bills on the Properties.
(e) A certificate signed by Seller certifying as to the truth and
accuracy of representations and warranties set forth in this Agreement on the
Closing Date as if originally made on such date and the fulfillment of the
covenants and agreements as of the Closing.
8.2 Purchaser's Obligations at Closing. At Closing, Purchaser shall
execute and deliver to Seller:
(a) The cash payments and Acquisition Shares as provided for herein.
(b) An opinion of Purchaser's counsel as required above.
9
10
(c) True and complete copies of resolutions duly adopted by
Purchaser's Board of Directors and, if required its shareholders and duly
certified by the Secretary of the corporation which provide all necessary
corporate authorization for the execution and carrying out of this Agreement and
its provisions.
(d) A certificate signed by Purchaser certifying as to the truth and
accuracy of representations and warranties set forth in this Agreement on the
Closing Date as if originally made on such date and the fulfillment of the
covenants and agreements as of the Closing.
ARTICLE 9
MISCELLANEOUS
9.1 Brokerage. Each party represents and warrants to the other that no
broker is entitled to any commission, or similar fee, in connection with the
making and carrying out of this Agreement.
9.2 Indemnification. Seller shall defend, indemnify, and hold Purchaser
harmless against any loss, damage, claim of third parties, actions, suits,
demands, judgments, or expense (including legal and other fees and charges)
incurred or sustained by Purchaser as a result of or attributable to any
misrepresentation or breach of any representation, warranty, covenant, or
agreement herein given or made by Seller. Purchaser shall defend, indemnify, and
hold Seller harmless against any loss, damage, claim of third parties, actions,
suits, demands, judgments, or expense (including legal and other fees and
charges), incurred or sustained by Seller as a result of or attributable to any
misrepresentation or breach of any representation, warranty, covenant, or
agreement herein given or made by Purchaser.
9.3 Entire Agreement; Modification. This Agreement supersedes all prior
agreements and constitutes the entire agreement between the parties hereto with
regard to the subject matter hereof. It may not be amended or modified except by
an instrument executed by both parties.
9.4 Notices and Communications. Any notice, payment, request, instruction,
or other document to be delivered hereunder shall be deemed sufficiently given
if in writing and delivered personally or mailed by certified mail, postage
prepaid, if to Purchaser, addressed to it at the address first set forth above,
with one copy to Xxxxx & Xxxxxxx LLP, 0 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx X. Xxxxx, Esq. and if addressed to Seller, Xxxxxxx
and/or Tandem, addressed to them at the addresses first set forth above, unless
in each case, such parties have notified the other in writing of a different
address.
9.5 Non-waiver. No delay or failure by either party to exercise any right
hereunder, and no partial or single exercise of any such right, shall constitute
a waiver of that or any other right, unless otherwise expressly provided herein.
9.6 Headings. Headings in this Agreement are for convenience and reference
only and shall not be used to interpret or construe its provisions.
9.7 Governing law. This Agreement and all other documents relating to this
Agreement shall be governed by the laws of the state of New York, excepting
applicable Federal law and except only to the extent precluded by mandatory
application of another state or foreign jurisdiction's laws.
10
11
Whenever possible, each provision of this Agreement shall be interpreted in such
a manner as to be effective and valid under applicable law, but if any provision
of this Agreement or any part of such provision shall be prohibited by or
invalid under applicable law, such provision or part thereof shall be
ineffective to the extent of such prohibition or invalidity without invalidating
the remainder of such provisions or the remaining provisions of this Agreement.
9.8 Counterparts. This Agreement may be executed 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.
9.9 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives,
successors, and assigns.
9.10 Survival of Representations and Warranties. Except as otherwise
expressly limited in this Agreement or the Schedules annexed, the parties'
representations and warranties extended hereunder shall survive the Closing.
Each party against whom liability is asserted hereunder shall be given the
opportunity to participate, directly or through its authorized representative,
at its expense, in the conduct of any negotiations relating to the settlements
of any liability or other proceeding instituted by a third party against either
Seller or Purchaser, as the case may be, giving rise to the alleged breach.
9.11 Expenses. Except as otherwise expressly provided herein, each party
shall pay all of its own expenses incidental to the negotiation and preparation
of the documentation and financial statements relating to this Agreement, and
for entering into and carrying out the terms and conditions thereof and
consummating the transactions, regardless of whether they arc consummated.
9.12 Payment of Taxes. All fees, costs, charges, and expenses payable to
any federal, state, or municipal authority, including, without limitation, all
filing fees, documentary stamps, and transfer, sales and other taxes required to
be paid, or imposed in connection with the transfer of any of the Properties
under the terms of this Agreement shall be paid by Seller, with the exception of
any recordation taxes and charges payable in connection with the recordation of
deeds relating to the Properties.
9.13 Assignment. Except as may otherwise be expressly provided herein,
neither party may assign any right, obligation, or liability arising hereunder
without the other party's prior written consent. Any such assignment or
attempted assignment shall be null and void.
9.14 Confidentiality. Prior to the Closing of the transactions
contemplated hereunder, the parties shall keep confidential the existence of
this contract, the transactions described herein, and all information obtained
from the other concerning the Properties. However, the covenants contained in
this paragraph 9.14 shall not apply in respect to any information which (a) was
already known to either party when such information was received from the other,
(b) was readily available to the general public at the time of such receipt, (c)
subsequently becomes known to the general public through no fault or omission by
the other party, (d) is subsequently disclosed by a third party which has the
bona fide right to make such disclosure, or (e) is required to be disclosed by
law or a governmental agency.
9.15 Third Party Beneficiaries. Except for their proper heirs, successors,
and assigns, the parties intend that no third party shall have any rights or
claims by reason of this contract.
11
12
9.16 Forum. The parties hereto agree that any action or proceeding arising
out of or relating to this Agreement or the documents relating thereto, may be
commenced in the Supreme Court of the State of New York, New York County or in
the District Court of the United States for the Southern District of New York
and each party agrees that a summons and complaint commencing an action or
proceeding in either of such courts shall be properly served and shall confer
personal jurisdiction if served personally or by certified mail to each party at
their address set forth in this Agreement, or as otherwise provided under the
laws of the state of New York. Further, Purchaser, Seller, Xxxxxxx and Tandem
hereby specifically consent to the personal jurisdiction of the Supreme Court of
the State of New York, New York County and the District Court of the United
States for the Southern District of New York and waive and hereby acknowledge
that they are estopped from raising any claim that either such court lacks
personal jurisdiction over them so as to prohibit either such court from
adjudicating any issue raised in a complaint filed with either such court
against them by the Purchaser concerning this Agreement.
12
13
In Witness Whereof, the parties have caused this Agreement to be duly
executed on the date first above written.
"DIAMOND DISCOVERIES INTERNATIONAL CORP."
Purchaser
By:
-------------------------------------
Xxxxxxxx X. Xxxxxx, Chairman
Seller:
-----------------------------------------
Xxxxx Xxxxxxxxx
With Respect to Article
4 of the Agreement
Xxxxxxx:
-----------------------------------------
Xxxxxxx X. Xxxxxxx
With Respect to Article
5 of the Agreement
"TANDEM RESOURCES LTD."
Tandem:
By:
-------------------------------------
13
