EXHIBIT 10.35
AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of this
the 28th day of February, 1997 by and among (a) Tanye Capital Group
("Contributor"), (b) Shoshone Mining Co., a Delaware corporation (the
"Company"), and (c) LS Capital Corporation, a Delaware corporation and the
parent corporation of the Company ("LS Capital").
Recitals
WHEREAS, Contributor desires to become a stockholder of the Company
promptly after its formation and organization by making a capital contribution
to the Company and receiving in consideration thereof shares of common stock in
the Company (referred to hereinafter as the "Company Shares") and shares of
common stock in LS Capital (referred to hereinafter as the "LS Capital Shares");
WHEREAS, the parties hereto desire to set forth in writing the terms,
provisions and
conditions of their becoming stockholders in the Company:
Agreement
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, $10.00 and other good and valuable consideration (the receipt, adequacy
and sufficiency of which are hereby acknowledged by each of the parties hereto),
each of the parties mentioned above hereby agrees as follows:
1. General Representations and Warranties.
(a) Contributor hereby represents and warrants to the Company and LS
Capital that Contributor (if a corporation) has been duly organized, is validly
existing and is in good standing in the jurisdiction in which it was
incorporated; Contributor has full right, power and authority to execute and
deliver this Agreement and all other agreements, documents and instruments to be
executed in connection herewith and perform Contributor's obligation hereunder
and thereunder; the execution and delivery by Contributor (if a corporation) of
this Agreement and all other agreements, documents and instruments to be
executed by Contributor in connection herewith have been authorized by all
necessary corporate action by Contributor; when this Agreement and all other
agreements, documents and instruments to be executed by Contributor in
connection herewith are executed by Contributor and delivered to the Company,
this Agreement and such other agreements, documents and instruments will
constitute the valid and binding agreements of Contributor enforceable against
Contributor in accordance with their respective terms; neither the execution and
delivery of this Agreement or any other agreements, documents and instruments to
be executed in connection herewith nor the consummation of the transactions
contemplated hereby or thereby will (i) violate, conflict with or result in the
breach or termination of, or otherwise give any other contracting party the
right to terminate, or constitute a default (by way of substitution, novation or
otherwise) under the terms of, any contract to which Contributor is a party or
by which Contributor is bound or by which any of the assets of Contributor is
bound or affected, (ii) violate any judgment against, or binding upon,
Contributor or upon the assets of Contributor, (iii) result in the creation of
any lien, charge or encumbrance upon any assets of Contributor pursuant to the
terms of any such contract, or (iv) violate any provision in the charter
documents, bylaws or any other agreement affecting the governance and control of
Contributor (if a corporation); there are no actions, suits, claims or legal,
administrative or arbitration proceedings or investigations pending or
threatened against, involving or affecting any of the assets of Contributor,
this Agreement, or the transactions contemplated hereby, and there are no
outstanding orders, writs, injunctions or decrees of any court, governmental
agency or arbitration tribunal against, involving or affecting any assets of
Contributor, this Agreement, or the transactions contemplated hereby; no consent
or approval from any person is required in connection with the execution and
delivery of this Agreement other than board of director approval of Contributor
(if a corporation), which has already been obtained; and the representations and
warranties made immediately above and elsewhere herein are material to the
Company and are being relied upon by the Company in connection with its decision
to issue Company Shares, and by LS Capital in connection with its decision to
issue LS Capital Shares, to Contributor pursuant to Section 2 of this Agreement.
(b) Each of the Company and LS Capital hereby represents and warrants,
severally but not jointly, to Contributor that (in all cases, upon the Company's
organization) it has full right, power and authority to execute and deliver this
Agreement and all other agreements, documents and instruments to be executed by
it in connection herewith and perform its obligation hereunder and thereunder;
it will be duly organized, validly existing and in good standing in the
jurisdiction in which it was incorporated; the execution and delivery by it of
this Agreement and all other agreements, documents and instruments to be
executed by it in connection herewith will be authorized by all necessary
corporate action; when this Agreement and all other agreements, documents and
instruments to be executed by it in connection herewith are executed by it and
delivered to Contributor, this Agreement and such other agreements, documents
and instruments will constitute the valid and binding agreements of it
enforceable against it in accordance with their respective terms; neither the
execution and delivery of this Agreement or any other agreements, documents and
instruments to be executed in connection herewith nor the consummation of the
transactions contemplated hereby or thereby will (i) violate, conflict with or
result in the breach or termination of, or otherwise give any other contracting
party the right to terminate, or constitute a default (by way of substitution,
novation or otherwise) under the terms of, any contract to which it is a party
or by which it is bound or by which any of the assets of it is bound or
affected, (ii) violate any judgment against, or binding upon, it or upon its
assets, (iii) result in the creation of any lien, charge or encumbrance upon any
of its assets pursuant to the terms of any such contract, or (iv) violate any
provision in the charter documents, bylaws or any other agreement affecting the
governance and control of it; there are no actions, suits, claims or legal,
administrative or arbitration proceedings or investigations pending or
threatened against, involving or affecting any of its assets, this Agreement, or
the transactions contemplated hereby, and there are no outstanding orders,
writs, injunctions or decrees of any court, governmental agency or arbitration
tribunal against, involving or affecting any of its assets, this Agreement, or
the transactions contemplated hereby; no consent or approval from any person is
required in connection with the execution and delivery of this Agreement other
than board of director approval, which will be obtained upon organization; the
Company Shares and the LS Capital Shares to be issued to Contributor pursuant to
this Agreement shall be duly authorized, validly issued, fully paid and
non-assessable at the time that they are issued; and the representations and
warranties made immediately above and elsewhere herein are material to
Contributor and are being relied upon by Contributor in connection with
Contributor's decision to make the capital contributions to the Company pursuant
to Section 2 of the Agreement.
2. Subscription for Shares.
(a) Contributor hereby agrees to contribute to the Company at the
Closing (as defined herein), by means of customary assignment documents
reasonably selected by the Company and reasonably approved by Contributor (the
"Assignments"), full right, title and interest in and to each of the Claims
acquired and held by it, free and clear of all liens, mortgages, security
interests, encumbrances, claims and restrictions on the transfer thereof.
"Claims" shall mean those certain mining claims described on Exhibit A hereto as
Exhibit A is amended from time to time hereafter. Contributor hereby represents
and warrants to the Company that the execution by Contributor and delivery to
the Company of the Assignment respecting the Claims will vest in the Company
full right, title and interest in and to the Claims, free and clear of any and
all encumbrances, security interests, liens, charges, claims,
restrictions or limitations, whatsoever, by any person of any kind, including
those on the transfer thereof, whether known or unknown. Contributor hereby
agrees that it will execute and deliver, or cause to be executed and delivered,
from time to time after the date hereof, upon the request of the Company, such
other instruments of assignment, transfer and conveyance and will take such
other action as the Company may reasonably require to effectuate and/or evidence
the contribution provided for herein. In consideration of its capital
contribution, Contributor shall receive 5,000,000 Company Shares and 150,000 LS
Capital Shares.
(b) In consideration of the contribution made hereby, the Company agree
to be the operator of the Tecopa project, and will be required (to the extent
that financing is available therefore) to expend $250,000.00 of the initial
exploration and development of the project in its first 24 months.
3. Securities Representations and Warranties. Contributor hereby
represents and warrants to the Company that it is not a "U.S. Person" as that
term in defined in Regulation S under Securities Act of 1933 (the "Act"); at the
time the buy order originated for any Company Shares and the date of this
Agreement, it was outside of the United States of America (the "U.S."); it is
acquiring the Company Shares for its own account and not on behalf of any U.S.
Person, and a sale has not been prearranged with a U.S. Person or a purchaser in
the U.S.; it agrees that all offers and sales of the Company Shares prior to the
expiration of a period commencing on the date of the issuance thereof and ending
40 days thereafter shall only be made in compliance with the safe harbor
contained in Regulation S, or pursuant to the registration thereof or an
exemption from registration, and that all offers and sales in the U.S. after
expiration of the 40-day period shall be made only pursuant to the registration
thereof or an exemption from registration; all offering documents received by it
have included statements, and all stock certificates that it shall receive
representing Company Shares shall feature legends, to the effect that the
Company Shares have not been registered under the Act and may not be offered or
sold in the U.S. or to U.S. Persons prior to the expiration of a period
commencing on the date of the issuance thereof and ending 40 days thereafter and
all offers and sales shall only be made in compliance with the safe harbor
contained in Regulation S, or pursuant to the registration thereof or an
exemption from registration; it has been furnished with the Company's most
recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form
10-Q and Current Reports on Form 8-K; it is familiar with the business and
financial condition, properties, operations and prospects of the Company, and
has been given full access to all material information concerning the condition,
properties, operations and prospects of the Company; it has had an opportunity
to ask such questions of, and to receive such information from, the Company as
it has desired and to obtain any additional information necessary to verify the
accuracy of the information and data received; and it is satisfied that there is
no material information concerning the condition, properties, operations and
prospects of the Company, of which it is unaware.
4. Closing. Each of Contributor, the Company and LS Capital hereby
acknowledges that not all mining claims that the parties contemplate will be
contributed to the Company pursuant hereto have been acquired by Contributor as
of the date hereof. Contributor hereby agrees to use its best efforts to acquire
all mining claims that the parties contemplate will be contributed to the
Company pursuant hereto. As soon as such a mining
claim is acquired by Contributor, the parties shall amend Exhibit A and attached
the amended Exhibit A hereto. The closing (the "Closing") of the transactions
provided for in or contemplated by this Agreement shall occur as soon as
possible after the execution of this Agreement and the acquisition of such
mining claims as the parties desire to be contributed to the Company. The
Closing may occur at such place and time and in such manner as the parties
hereto may agree to. The Closing need not be one in which every party hereto is
physically present but may be one in which all documents and instrument
necessary to close the transactions provided for in or contemplated by this
Agreement are transmitted among the parties by means of ordinary or express
mails.
5. Securities Registration. Within 12 months after the Closing or
within six months after the first production with respect to the Claims, the
Company may at the option of its Board of Directors register with the United
States Securities and Exchange Commission (the "Commission") an in-kind dividend
to the stockholders of LS Capital consisting of 1,000,000 Company Shares owned
by LS Capital. In the event of such registration, the Company shall use its best
efforts to qualify such Company Shares under the securities laws for each state
for which an exemption is not available and qualification is required, unless
the cost and expense of such qualification outweighs the benefit of
qualification. In connection with any registration undertaken pursuant to this
Section 5, Contributor shall use reasonable efforts to cooperate with the
Company and LS Capital and will furnish to the Company and LS Capital in writing
such information, as shall be reasonably necessary in order to assure compliance
with federal and applicable state securities laws pertaining to disclosure and
otherwise, with respect to the Claims and the business heretofore conducted by
Contributor. Moreover, Contributor shall, upon the request of the Company,
review drafts of the registration statement to be filed the Commission and any
and all amendments thereto and furnish the Company with Contributor's comments
upon and approval of or reasons for declining to approve such portions of the
drafts for which the Company has requested comments and approval. Any such
portions with respect to which a Contributor has not expressly disapproved in
writing shall be deemed approved by Contributor. The Company shall pay all
registration expenses in connection with any registration undertaken pursuant to
this Section 5.
6. Spin-Off. As soon as possible after the registration statement filed
in connection with any registration undertaken pursuant to Section 5 above is
declared effective, LS Capital shall declare and effect to its stockholders a
pro-rata, in-kind dividend of the Company Shares registered. In this connection,
LS Capital shall deliver to each of its stockholders receiving the registered
Company Shares an unlegended stock certificate representing the Company Shares
that such stockholder is to receive as well as a copy of the prospectus
comprising part of the registration statement declared effective during the
course of any registration undertaken pursuant to Section 5.
7. Indemnification.
(a) All representations and warranties made herein by a party hereto
shall survive all transactions provided for or contemplated herein, including,
without limitation, the making of the capital contributions to the Company by
Contributor pursuant to Section 2 and the issuance of the Company Shares by the
Company, and the issuance of LS Capital Shares to Contributor by LS Capital,
pursuant to Section 2.
(b) Contributor shall protect, indemnify and hold the Company harmless
from any and all demands, claims, actions, causes of actions, lawsuits,
proceedings, judgments, losses, damages, injuries, liabilities, obligations,
expenses and costs (including costs of litigation and attorneys' fees), arising
from any breach of any agreement, representation or warranty made by it in this
Agreement.
(c) The Company shall protect, indemnify and hold Contributor harmless
from any and all demands, claims, actions, causes of actions, lawsuits,
proceedings, judgments, losses, damages, injuries, liabilities, obligations,
expenses and costs (including costs of litigation and attorneys' fees), arising
from any breach of any agreement, representation or warranty made by it in this
Agreement.
(d) LS Capital shall protect, indemnify and hold Contributor harmless
from any and all demands, claims, actions, causes of actions, lawsuits,
proceedings, judgments, losses, damages, injuries, liabilities, obligations,
expenses and costs (including costs of litigation and attorneys' fees), arising
from any breach of any agreement, representation or warranty made by it in this
Agreement.
8. Right of First Refusal.
(a) If after the completion of the transactions provided for in or
contemplated by Section 2, Contributor desires to dispose of its Company Shares
now owned or hereafter acquired, Contributor shall first offer, in writing in
the manner provided for in Section 9(g) hereof, to sell its the Company Shares
to LS Capital at a purchase price and on such terms as Contributor intends in
good faith to sell to a bona fide third party. The written offer shall contain
the identity of the proposed transferee and the purchase price and terms upon
which the transfer is proposed to occur. Following the receipt of the written
offer provided for hereinabove, LS Capital shall have an option, exercisable for
thirty (30) days, to purchase all or any portion of the Company Shares proposed
to be sold at the price and on the terms set forth in the notice. If LS Capital
fails to exercise its option with respect to all of the Company Shares proposed
to be transferred, then LS Capital shall notify immediately the Company of its
failure to fully exercise its option. The Company shall then have an option,
exercisable for fifteen (15) days commencing on the date of LS Capital's notice,
to purchase all or any portion of the Company Shares not purchased by LS
Capital. Notwithstanding anything else contained in this Section 8, neither LS
Capital nor the Company shall have any rights to purchase any Company Shares
proposed to be transferred by Contributor unless the Company and/or the Company
stockholders, separately or collectively, exercise the options provided for in
this Section 8 with respect to all, and not less than all, of the Company Shares
proposed to be transferred.
(b) In the event that all of the Company Shares proposed to be sold by
Contributor are not purchased in accordance with this Section 8 before the
expiration of the time periods established in this Section 8 therefor, all of
the Company Shares may be sold to the transferee identified in the written
notice to the Company at a price no lower and upon terms no more favorable than
the price and terms that the Company Shares could have been purchased pursuant
to the options to which they were subject. Such sale shall be free and clear of
the terms of this Section 8 during the three-month period beginning on the date
that the last option period in this Section 8 terminates, but thereafter any the
Company Shares not so sold shall again be subject to the terms and conditions of
this Section 8. Any attempted disposition in contravention of the provisions of
this Section 8 shall be null and void and of no force and effect and, therefore,
shall not preclude the exercise of the options provided for in this Section 8.
(c) The closing of the sale and purchase of any the Company Shares
pursuant to this Section 8 shall occur within fifteen (15) days after the last
option exercised is exercised in accordance with this Section 8. At the closing,
(a) Contributor shall deliver the appropriate stock certificates, properly
endorsed or accompanied by a properly prepared and executed stock power, and (b)
the purchasers shall deliver the consideration required by this Section 8. Each
of the parties hereby grants to the other the right of specific performance with
respect to this Section 8 in recognition of the uniqueness of the subject matter
hereof.
(d) All certificates representing the Company Shares now owned or that
may hereafter be acquired by any party to this Agreement shall have a legend on
the back thereof substantially as follows:
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
RIGHT OF FIRST REFUSAL AGREEMENT WHICH PROVIDES
SIGNIFICANT RESTRICTIONS ON THE TRANSFERABILITY OF THE
SHARES REPRESENTED HEREBY.
Such certificates shall state on the front thereof substantially as
follows:
SEE RESTRICTIONS ON TRANSFER HEREOF ON REVERSE SIDE.
(e) The agreements contained in this Section 8 may be terminated by an
instrument in writing signed by all parties hereto. The agreements contained in
this Section 8 shall automatically terminate whenever the Company Shares or any
securities received with respect to the Company Shares becomes registered under
the Act.
9. General.
(a) THIS AGREEMENT AND ALL QUESTIONS RELATING TO ITS
VALIDITY, INTERPRETATION, PERFORMANCE, AND ENFORCEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS.
(b) Any controversy arising out of or relating to this Agreement or any
modification or extension thereof, including any claims for breach, for damages,
and/or for recision or reformation, shall be settled by binding arbitration in
Xxxxxx County, Texas according to the rules and regulations of the American
Arbitration Association, Commercial Arbitration Rules.
(c) This Agreement contains the entire understanding among the parties
hereto with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, inducements, or conditions,
express or implied, oral or written, except as herein contained. This Agreement
may not be modified or amended other than by an agreement in writing signed by
all parties affected.
(d) The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
The section headings in this Agreement are for convenience only; they form no
part of this Agreement and shall not affect its interpretation.
(e) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together constitute one and
the same instrument.
(f) The parties hereto hereby agree that time is of the essence for all
purposes of this Agreement.
(g) Any notices to be given hereunder by any party to the other parties
may be effected either by personal delivery in writing, or by mail, registered
or certified, postage prepaid with return receipt requested, addressed to the
one or more parties to be notified at the addresses set forth beneath such
parties' respective signatures below.
(h) All obligations of the Company and all agreements made herein for
the benefit of the Company shall become effective immediately upon the formation
and organization of the Company. The person signing this Agreement on behalf of
the Company shall use reasonable efforts to cause the Company to be formed. Upon
the formation of the Company, such person shall have no further obligations or
liability pertaining to the Company or this Agreement except as is expressly
agreed to by such person in writing.
IN WITNESS WHEREOF, the parties hereto have signed their names hereto
as of the first date written above.
TANYE CAPITAL GROUP SHOSHONE MINING CO.
a ________________ _________________ a Delaware corporation
By:/S/ X.X. XxXxxxxx By: /S/ Xxxx X. Xxxxxx
Name Printed: Xxxxx X. XxXxxxxx Name Printed: Xxxx X. Xxxxxx
Title: President Title: Vice President
Address: 1400 000 Xxxxxxx Xx. Address: 00000 Xxxx Xxxxxxx,
Xxxxx 000
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Vancouver, British Columbia Xxxxxxx, Xxxxx 00000
XXXXXX X0X 0X0
LS CAPITAL CORPORATION
a Delaware corporation
By: /S/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx,
Chief Executive Officer
Address: 00000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
The undersigned joins herein for the limited purpose of agreeing to use
his best efforts to assist Contributor in acquiring all mining claims that the
parties contemplate will be contributed to the Company pursuant hereto.
------------------------------------
Xx Xxxxxxxx
CERTIFICATE
Each of the undersigned hereby certifies and acknowledges that the
undersigned has signed and executed the foregoing agreement with multiple
original signature pages at separate locations to be effective immediately upon
signing and that the transmission of a telecopier facsimile of their respective
signatures, each to the other, shall be sufficient to cause the
mutual delivery of this executed agreement in order to bind the parties and make
the agreement effective upon the date of signing. It is further certified,
acknowledged and agreed that the original signature pages are to be circulated
hereafter but that the failure of any party to obtain the original signature
pages hereafter shall not affect the validity and effectiveness of this
agreement which is effective from and after the execution by all parties and the
transmission by telecopier facsimile of the signature of all parties, each to
the other.
IN WITNESS WHEREOF, the parties hereto have signed their names hereto
as of the first date written above.
TANYE CAPITAL GROUP SHOSHONE MINING CO.
a ________________ _________________ a Delaware corporation
By:/S/ X.X. XxXxxxxx By: /S/ Xxxx X. Xxxxxx
Name Printed: Xxxxx X. XxXxxxxx Name Printed: Xxxx X. Xxxxxx
Title: President Title: Vice President
LS CAPITAL CORPORATION
a Delaware corporation
By: /S/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx,
Chief Executive Officer
