ASSET PURCHASE AGREEMENT
by and among
Atlas Precious Metals, Inc., as
Seller
and
Golden Eagle International, Inc. as
Buyer
Dated: June 18, 2004
ASSET PURCHASE AGREEMENT
This
Asset Purchase Agreement (“Agreement”) is dated June
18, 2004, by and among Golden Eagle International, Inc., a Colorado
corporation (“Buyer”); and Atlas Precious Metals, Inc.,
a Nevada corporation (“Seller”).
1.
Definitions and Usage
1.1
Definitions. For purposes of this Agreement, the
following terms and variations thereof have the meanings specified
or referred to in this Section 1.1.
“Assets”
– as set forth in Part 2.1.
“Best
Efforts” the efforts that a prudent Person desirous of
achieving a result would use in similar circumstances to achieve
that result as expeditiously as possible, provided, however, that a
Person required to use Best Efforts under this Agreement will not
be thereby required to take actions that would result in a material
adverse change in the benefits to such Person of this Agreement and
the Contemplated Transactions or to dispose of or make any change
to its business, expend any material funds or incur any other
material burden.
“Bill
of Sale” – as defined in Section 2.6.1(i).
“Breach”
– any breach of, or any inaccuracy in, any representation or
warranty or any breach of, or failure to perform or comply with,
any covenant or obligation, in or of this Agreement or any other
Contract, or any event which with the passing of time or the giving
of notice, or both, would constitute such a breach, inaccuracy or
failure.
“Business
Day” – any day other than (a) Saturday or Sunday or (b)
any other day on which banks in Colorado are permitted or required
to be closed.
“Buyer”
– as defined in the first paragraph of this
Agreement.
“Buyer
Indemnified Persons” – as defined in Section
11.2.
“Buyer’s
Closing Documents” – as defined in Section
4.2.1.
“Closing”
– as defined in Section 2.5.
“Closing
Date” – the date on which the Closing actually takes
place.
“Code”
– the Internal Revenue Code of 1986.
“Consent”
– any approval, consent, ratification, waiver or other
authorization.
“Contemplated
Transactions” — all of the transactions contemplated by
this Agreement.
“Contract”
— any agreement, contract, Lease, consensual obligation,
promise or undertaking (whether written or oral and whether express
or implied), whether or not legally binding.
“Damages”
— as defined in Section 11.2.
“Effective
Time” –June 24, 2004, or such other date on which the
Closing occurs.
“Encumbrance”
— any charge, claim, community or other marital property
interest, condition, equitable interest, lien, option, pledge,
security interest, mortgage, right of way, easement, encroachment,
servitude, right of first option, right of first refusal or similar
restriction, including any restriction on use, voting (in the case
of any security or equity interest), transfer, receipt of income or
exercise of any other attribute of ownership.
“Environment”
– soil, land surface or subsurface strata, surface waters
(including navigable waters and ocean waters), groundwaters,
drinking water supply, stream sediments, ambient air (including
indoor air), plant and animal life and any other environmental
medium or natural resource.
“Environmental,
Health and Safety Liabilities” — any cost, damages,
expense, liability, obligation or other responsibility arising from
or under any Environmental Law or Occupational Safety and Health
Law, including those consisting of or relating to:
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(a)
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any
environmental, health or safety matter or condition (including
on-site or off-site contamination, occupational safety and health
and regulation of any chemical substance or product);
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(b)
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any fine,
penalty, judgment, award, settlement, legal or administrative
proceeding, damages, loss, claim, demand or response, remedial or
inspection cost or expense arising under any Environmental Law or
Occupational Safety and Health Law;
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(c)
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financial
responsibility under any Environmental Law or Occupational Safety
and Health Law for cleanup costs or corrective action, including
any cleanup, removal, containment or other remediation or response
actions (“Cleanup”) required by any Environmental Law
or Occupational Safety and Health Law (whether or not such Cleanup
has been required or requested by any Governmental Body or any
other Person) and for any natural resource damages; or
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(d)
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any other
compliance, corrective or remedial measure required under any
Environmental Law or Occupational Safety and Health Law.
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The
terms “removal,” “remedial” and
“response action” include the types of activities
covered by the United States Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (CERCLA).
“Environmental
Law” — any Legal Requirement that requires or relates
to:
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(a)
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advising
appropriate authorities, employees or the public of intended or
actual Releases of pollutants or Hazardous Materials, violations of
discharge limits or other prohibitions and the commencement of
activities, such as resource extraction or construction, that could
have significant impact on the Environment;
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(b)
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preventing or
reducing to acceptable levels the Release of pollutants or
Hazardous Materials into the Environment;
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(c)
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reducing the
quantities, preventing the Release or minimizing the hazardous
characteristics of wastes that are generated;
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(d)
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assuring that
products are designed, formulated, packaged and used so that they
do not present unreasonable risks to human health or the
Environment when used or disposed of;
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(e)
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protecting
resources, species or ecological amenities;
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(f)
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reclaiming,
restoring or maintaining mine sites;
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(g)
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reducing to
acceptable levels the risks inherent in the transportation of
Hazardous Materials, pollutants, oil or other potentially harmful
substances;
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(h)
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cleaning up
pollutants or Hazardous Materials that have been Released,
preventing the Threat of Release or paying the costs of such clean
up or prevention; or
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(i)
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making
responsible parties pay private parties, or groups of them, for
damages done to their health or the Environment or permitting
self-appointed representatives of the public interest to recover
for injuries done to public assets.
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“Exchange
Act” — the Securities Exchange Act of 1934.
“Facilities”
– any real property, leasehold or other interest in real
property currently owned or operated by Seller, including the
Tangible Personal Property and the underground production cavities
used or operated by Seller at the respective locations of the Real
Property. Notwithstanding the foregoing, for purposes of the
definitions of “Hazardous Activity” and “Remedial
Action” and Sections 3.6 and 11.3, “Facilities”
shall mean any real property, leasehold or other interest in real
property currently or formerly owned or operated by Seller,
including the Fixtures and Tangible Personal Property used or
operated by Seller at the respective locations of the Real
Property.
“GAAP”
— generally accepted accounting principles for financial
reporting in the United States, applied on a consistent
basis.
“Governing
Documents” — with respect to any particular entity, (a)
if a corporation, the articles or certificate of incorporation and
the bylaws; (b) if a general partnership, the partnership agreement
and any statement of partnership; (c) if a limited partnership, the
limited partnership agreement and the certificate of limited
partnership; (d) if a limited liability company, the articles of
organization and operating agreement; (e) if another type of
Person, any other charter or similar document adopted or filed in
connection with the creation, formation or organization of the
Person; (f) all equityholders’ agreements, voting agreements,
voting trust agreements, joint venture agreements, registration
rights agreements or other agreements or documents relating to the
organization, management or operation of any Person or relating to
the rights, duties and obligations of the equityholders of any
Person; and (g) any amendment or supplement to any of the
foregoing.
“Governmental
Authorization” — any Consent, license, registration or
permit issued, granted, given or otherwise made available by or
under the authority of any Governmental Body or pursuant to any
Legal Requirement.
“Governmental
Body” – any:
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(a)
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nation, state,
county, city, town, borough, village, district or other
jurisdiction;
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(b)
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federal, state,
local, municipal, foreign or other government;
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(c)
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governmental or
quasi-governmental authority of any nature (including any agency,
branch, department, board, commission, court, tribunal or other
entity exercising governmental or quasi-governmental
powers);
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(d)
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multinational
organization or body;
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(e)
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body
exercising, or entitled or purporting to exercise, any
administrative, executive, judicial, legislative, police,
regulatory or taxing authority or power; or
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(f)
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official of any
of the foregoing.
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“Hazardous
Activity” — the distribution, generation, handling,
importing, management, manufacturing, processing, production,
refinement, Release, storage, transfer, transportation, treatment
or use (including any withdrawal or other use of groundwater) of
Hazardous Material in, on, under, about or from any of the Gold Bar
Assets or the Facilities on which the Gold Bar Assets are or were
located and any other act, business, operation or thing that
increases the danger, or risk of danger, or poses an unreasonable
risk of harm, to persons or property in, on or near the Gold Bar
Assets, or the Facilities on which the Gold Bar Assets are or were
located.
“Hazardous
Material” — any substance, material or waste which is
or will foreseeably be regulated by any Governmental Body,
including any material, substance or waste which is defined as a
“hazardous waste,” “hazardous material,”
“hazardous substance,” “extremely hazardous
waste,” “restricted hazardous waste,”
“contaminant,” “toxic waste” or
“toxic substance” under any provision of Environmental
Law, and including petroleum, petroleum products, asbestos,
presumed asbestos-containing material or asbestos-containing
material, urea formaldehyde and polychlorinated
biphenyls.
“Indemnified
Person” — as defined in Section 11.7.1.
“Indemnifying
Person” — as defined in Section 11.7.1.
“IRS”
— the United States Internal Revenue Service and, to the
extent relevant, the United States Department of the
Treasury.
“Knowledge”
— an individual will be deemed to have Knowledge of a
particular fact or other matter if:
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(a)
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that individual
is actually aware of that fact or matter; or
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(b)
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a prudent
individual could be expected to discover or otherwise become aware
of that fact or matter in the course of conducting a reasonably
comprehensive investigation regarding the accuracy of any
representation or warranty contained in this Agreement.
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A Person (other than an
individual) will be deemed to have Knowledge of a particular fact
or other matter if any individual who is serving, or who has at any
time served, as a director, officer, partner, executor or trustee
of that Person (or in any similar capacity) has, or at any time
had, Knowledge of that fact or other matter (as set forth in (a)
and (b) above), and any such individual (and any individual party
to this Agreement) will be deemed to have conducted a reasonably
comprehensive investigation regarding the accuracy of the
representations and warranties made herein by that Person or
individual.
“Legal
Requirement” — any federal, state, local, municipal,
foreign, international, multinational or other constitution, law,
ordinance, principle of common law, code, regulation, statute or
treaty.
“Liability”
— with respect to any Person, any liability or obligation of
such Person of any kind, character or description, whether known or
unknown, absolute or contingent, accrued or unaccrued, disputed or
undisputed, liquidated or unliquidated, secured or unsecured, joint
or several, due or to become due, vested or unvested, executory,
determined, determinable or otherwise, and whether or not the same
is required to be accrued on the financial statements of such
Person.
“Material
Consents” — as defined in Section 7.3.
“Nonmaterial
Consents” – as defined in Section 2.7.2.
“Occupational
Safety and Health Law” — any Legal Requirement designed
to provide safe and healthful working conditions and to reduce
occupational safety and health hazards, including the Occupational
Safety and Health Act, and any program, whether governmental or
private (such as those promulgated or sponsored by industry
associations and insurance companies), designed to provide safe and
healthful working conditions.
“Order”
— any order, injunction, judgment, decree, ruling, assessment
or arbitration award of any Governmental Body or
arbitrator.
“Ordinary
Course of Business” — an action taken by a Person will
be deemed to have been taken in the Ordinary Course of Business
only if that action:
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(a)
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is consistent
in nature, scope and magnitude with the past practices of such
Person and is taken in the ordinary course of the normal,
day-to-day operations of such Person;
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(b)
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does not
require authorization by the board of directors or equityholders of
such Person (or by any Person or group of Persons exercising
similar authority) and does not require any other separate or
special authorization of any nature; and
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(c)
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is similar in
nature, scope and magnitude to actions customarily taken, without
any separate or special authorization, in the ordinary course of
the normal, day-to-day operations of other Persons that are in the
same line of business as such Person.
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“Person”
— an individual, partnership, corporation, business trust,
limited liability company, limited liability partnership, joint
stock company, trust, unincorporated association, joint venture or
other entity or a Governmental Body.
“Proceeding”
— any action, arbitration, audit, hearing, investigation,
litigation or suit (whether civil, criminal, administrative,
judicial or investigative, whether formal or informal, whether
public or private) commenced, brought, conducted or heard by or
before, or otherwise involving, any Governmental Body or
arbitrator.
“Purchase
Price” — as defined in Section 2.2.
“Record”
— information that is inscribed on a tangible medium or that
is stored in an electronic or other medium and is retrievable in
perceivable form.
“Related
Person” — With respect to a particular
individual:
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(a)
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each other
member of such individual’s Family;
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(b)
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any Person that
is directly or indirectly controlled by any one or more members of
such individual’s Family;
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(c)
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any Person in
which members of such individual’s Family hold (individually
or in the aggregate) a Material Interest; and
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(d)
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any Person with
respect to which one or more members of such individual’s
Family serves as a director, officer, partner, executor or trustee
(or in a similar capacity).
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With respect to a specified
Person other than an individual:
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(a)
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any Person that
directly or indirectly controls, is directly or indirectly
controlled by or is directly or indirectly under common control
with such specified Person;
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(b)
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any Person that
holds a Material Interest in such specified Person;
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(c)
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each Person
that serves as a director, officer, partner, executor or trustee of
such specified Person (or in a similar capacity);
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(d)
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any Person in
which such specified Person holds a Material Interest;
and
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(e)
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any Person with
respect to which such specified Person serves as a general partner
or a trustee (or in a similar capacity).
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For purposes of this definition,
(a) “control” (including “controlling,”
“controlled by,” and “under common control
with”) means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by
contract or otherwise, and shall be construed as such term is used
in the rules promulgated under the Securities Act; (b) the
“Family” of an individual includes (i) the individual,
(ii) the individual’s spouse, (iii) any other natural person
who is related to the individual or the individual’s spouse
within the second degree and (iv) any other natural person who
resides with such individual; and (c) “Material
Interest” means direct or indirect beneficial ownership (as
defined in Rule 13d-3 under the Exchange Act) of voting securities
or other voting interests representing at least ten percent (10%)
of the outstanding voting power of a Person or equity securities or
other equity interests representing at least ten percent (10%) of
the outstanding equity securities or equity interests in a
Person.
“Release”
— any release, spill, emission, leaking, pumping, pouring,
dumping, emptying, injection, deposit, disposal, discharge,
dispersal, leaching or migration on or into the Environment or into
or out of any property.
“Remedial
Action” — all actions, including any capital
expenditures, required or voluntarily undertaken (a) to clean up,
remove, treat or in any other way address any Hazardous Material or
other substance; (b) to prevent the Release or Threat of Release or
to minimize the further Release of any Hazardous Material or other
substance so it does not migrate or endanger or threaten to
endanger public health or welfare or the Environment; (c) to
perform pre-remedial studies and investigations or post-remedial
monitoring and care; or (d) to bring all Facilities and the
operations conducted thereon into compliance with Environmental
Laws and environmental Governmental Authorizations.
“Representative”
— with respect to a particular Person, any director, officer,
manager, employee, agent, consultant, advisor, accountant,
financial advisor, legal counsel or other representative of that
Person.
“Restricted
Material Contract” – as defined in Section
2.7.1.
“Restricted
Nonmaterial Contract” – as defined in Section
2.7.2.
“Retained
Contracts” are all contracts of Seller that are not expressly
assumed, in writing, by the Buyer.
“SEC”
— the United States Securities and Exchange
Commission.
“Securities
Act” – the United States Securities Act of 1933, as
amended (15 U.S.C. §77a et seq. ).
“Seller”
— as defined in the first paragraph of this
Agreement.
“Seller
Contract” — any Contract (a) under which Seller has or
may acquire any rights or benefits; (b) under which Seller has or
may become subject to any obligation or liability; or (c) by which
Seller or any of the assets owned or used by Seller is or may
become bound.
“Seller’s
Closing Documents” – as defined in Section
3.2.1.
“Tangible
Personal Property” — all machinery, equipment, tools,
furniture, office equipment, computer hardware, supplies,
materials, vehicles and other items of tangible personal property
(other than Inventories) of every kind owned or leased by Seller
(wherever located and whether or not carried on Seller’s
books), together with any express or implied warranty by the
manufacturers or sellers or lessors of any item or component part
thereof and all maintenance records and other documents relating
thereto.
“Tax”
— any income, gross receipts, license, payroll, employment,
excise, severance, stamp, occupation, premium, property,
environmental, windfall profit, customs, vehicle, airplane, boat,
vessel or other title or registration, capital stock, franchise,
employees’ income withholding, foreign or domestic
withholding, social security, unemployment, disability, real
property, personal property, sales, use, transfer, value added,
alternative, add-on minimum and other tax, fee, assessment, levy,
tariff, charge or duty of any kind whatsoever and any interest,
penalty, addition or additional amount thereon imposed, assessed or
collected by or under the authority of any Governmental Body or
payable under any tax-sharing agreement or any other
Contract.
“Tax
Return” — any return (including any information
return), report, statement, schedule, notice, form, declaration,
claim for refund or other document or information filed with or
submitted to, or required to be filed with or submitted to, any
Governmental Body in connection with the determination, assessment,
collection or payment of any Tax or in connection with the
administration, implementation or enforcement of or compliance with
any Legal Requirement relating to any Tax.
“Third
Party” — a Person that is not a party to this
Agreement.
“Third-Party
Claim” – any claim against any Indemnified Person by a
Third Party, whether or not involving a Proceeding.
“Threat
of Release” – a reasonable likelihood of a Release that
may require action in order to prevent or mitigate damage to the
Environment that may result from such Release.
“WARN
Act” – as defined in Section 11.2.7.
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1.2.1
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Interpretation. In this Agreement, unless a clear contrary
intention appears:
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(j)
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The singular
number includes the plural number and vice versa;
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(ii)
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Reference to
any Person includes such Person’s successors and assigns but,
if applicable, only if such successors and assigns are not
prohibited by this Agreement, and reference to a Person in a
particular capacity excludes such Person in any other capacity or
individually;
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(iii)
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Reference to
any gender includes each other gender;
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(iv)
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Reference to
any agreement, document or instrument means such agreement,
document or instrument as amended or modified and in effect from
time to time in accordance with the terms thereof;
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(v)
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Reference to
any Legal Requirement means such Legal Requirement as amended,
modified, codified, replaced or reenacted, in whole or in part, and
in effect from time to time, including rules and regulations
promulgated thereunder, and reference to any section or other
provision of any Legal Requirement means that provision of such
Legal Requirement from time to time in effect and constituting the
substantive amendment, modification, codification, replacement or
reenactment of such section or other provision;
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(vi)
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“Hereunder,” “hereof,”
“hereto,” and words of similar import shall be deemed
references to this Agreement as a whole and not to any particular
Article, Section or other provision hereof;
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(vii)
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“Including” (and with correlative
meaning “include”) means including without limiting the
generality of any description preceding such term;
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(viii)
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“Or” is used in the inclusive sense
of “and/or”;
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(ix)
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With respect to
the determination of any period of time, “from” means
“from and including” and “to” means
“to but excluding”; and
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(x)
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References to
documents, instruments or agreements shall be deemed to refer as
well to all addenda, exhibits, schedules or amendments
thereto.
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1.2.2
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Accounting
Terms and Determinations . Unless otherwise specified herein, all
accounting terms used herein shall be interpreted and all
accounting determinations hereunder shall be made in accordance
with GAAP.
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1.2.3
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Legal
Representation of the Parties . This Agreement was negotiated by the parties
with the benefit of legal representation, and any rule of
construction or interpretation otherwise requiring this Agreement
to be construed or interpreted against any party shall not apply to
any construction or interpretation hereof.
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2
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Sale and
Transfer of Assets; Closing
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2.1
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Assets to
be Sold. Upon the
terms and subject to the conditions set forth in this Agreement, at
the Closing, but effective as of the Effective Time, Seller shall
sell, convey, assign, transfer and deliver to Buyer, and Buyer
shall purchase and acquire from Seller, all of Seller’s
right, title and interest in and to the Assets which are more
particularly described on Schedule 2.1. All of the property and
assets to be transferred to Buyer hereunder are herein referred to
collectively as the “Assets.” The transfer of the
Assets pursuant to this Agreement shall not include the assumption
of any Liability related to the Assets.
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2.2
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Consideration . The consideration for the Assets (the
“Purchase Price”) will be 25,000,000 shares of
restricted common stock of the Buyer (subject to the Seller’s
signature to a subscription agreement in the form of Schedule
2.2).
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2.3
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No
Encumbrances. The
Buyer will purchase, and the Seller will sell, the Assets free and
clear of all Encumbrances, and the transfer of the Assets pursuant
to this Agreement shall not include the assumption of any Liability
related to the Assets.
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2.4
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Allocation. The Purchase Price shall be allocated in
accordance with Schedule 2.4. After the Closing, the parties shall
make consistent use of the allocation, fair market value and useful
lives specified in Schedule 2.4 for all Tax purposes and in all
filings, declarations and reports with the IRS in respect thereof,
including the reports required to be filed under Section 1060 of
the Code. Buyer shall prepare and deliver IRS Form 8594 to Seller
within 45 days after the Closing Date to be filed with the IRS. In
any Proceeding related to the determination of any Tax, neither
Buyer nor Seller nor any affiliate of either shall contend or
represent that such allocation is not a correct
allocation.
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2.5
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Closing. The purchase and sale provided for in this
Agreement (the “Closing”) will take place at Denver,
Colorado, commencing at 7:00 a.m. (local time) on the later of (a)
June 24, 2004, or (b) the date that is five Business Days following
the completion of the Conditions Precedent, unless Buyer and Seller
otherwise agree. Subject to the provisions of Article 9, failure to
complete the purchase and sale provided for in this Agreement on
the date and time and at the place determined pursuant to this
Section 2.5 will not result in the termination of this Agreement
and will not relieve any party of any obligation under this
Agreement. In such a situation, the Closing will occur as soon as
practicable, subject to Article 9. 2.6 Closing
Obligations. In addition to any other documents to be
delivered under other provisions of this Agreement, at the
Closing:
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2.6.1
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Seller shall
deliver to Buyer:
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(i)
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a bill of sale
for all of the Assets that are Tangible Personal Property in form
to be agreed between Seller and Buyer which includes
representations and warranties that the Assets are being
transferred free and clear of all Encumbrances (the “Bill of
Sale”);
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(ii)
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an assignment
of all of the Assets that are intangible personal property in form
to be agreed between Seller and Buyer with warranties of title as
described above;
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(iii)
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the
subscription agreement; and
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2.6.2
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Buyer shall
deliver to Seller:
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(i)
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A certificate
for the shares of the Buyer’s restricted common stock
constituting the Purchase Price in the name of the Seller or (in
the alternative) instruction letters to the Buyer’s transfer
agent providing irrevocable instructions to issue the shares and
deliver them to the Seller’s direction;
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3.
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Representations and Warranties of
Seller . Seller
represents and warrants to Buyer as follows:
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3.1
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Organization and Good Standing.
Seller is a corporation duly
organized, validly existing and in good standing under the laws of
Nevada, with full corporate power and authority to conduct its
business as it is now being conducted, to own or use the properties
and assets that it purports to own or use, and to perform all its
obligations under this Agreement.
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3.2
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Enforceability; Authority; No
Conflict
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3.2.1
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This Agreement
constitutes the legal, valid and binding obligation of Seller,
enforceable in accordance with its terms. Upon the execution and
delivery by Seller of each other agreement to be executed or
delivered by any or all of Seller at the Closing (collectively, the
“Seller’s Closing Documents”), each of
Seller’s Closing Documents will constitute the legal, valid
and binding obligation of Seller, enforceable against it in
accordance with its terms. Seller has the absolute and unrestricted
right, power and authority to execute and deliver this Agreement
and the Seller’s Closing Documents to which it is a party and
to perform its obligations under this Agreement and the
Seller’s Closing Documents, and such action has been duly
authorized by all necessary action by Seller’s shareholders
and board of directors.
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3.2.2
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Neither the
execution and delivery of this Agreement nor the completion or
performance of any of the Contemplated Transactions will, directly
or indirectly (with or without notice or lapse of time):
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(i)
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Breach (A) any
provision of any of the Governing Documents of Seller or (B) any
resolution adopted by the board of directors of the
Seller;
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(ii)
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Breach or give
any Governmental Body or other Person the right to challenge any of
the Contemplated Transactions or to exercise any remedy or obtain
any relief under any Legal Requirement or any Order to which Seller
or any of the Assets, may be subject;
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(iii)
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Contravene,
conflict with or result in a violation or breach of any of the
terms or requirements of, or give any Governmental Body the right
to revoke, withdraw, suspend, cancel, terminate or modify, any
Governmental Authorization that is held by Seller or that otherwise
relates to the Assets or to the business of Seller;
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(iv)
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Cause Buyer to
become subject to, or to become liable for the payment of, any
Tax;
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(v)
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Breach any
provision of, or give any Person the right to declare a default or
exercise any remedy under, or to accelerate the maturity or
performance of, or payment under, or to cancel, terminate or
modify, any Seller Contract;
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(vi)
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Result in the
imposition or creation of any Encumbrance upon or with respect to
any of the Assets; or
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(vii)
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Require the
approval of the shareholders or creditors of the Seller.
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The
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Seller is not
required to give any notice to or obtain any Consent from any
Person in connection with the execution and delivery of this
Agreement or the completion or performance of the Contemplated
Transaction.
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3.3
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Title To
Assets; Encumbrances. Seller owns good and transferable title to all
of the other Assets free and clear of any Encumbrances. Seller
warrants to Buyer that, at the time of Closing, all other Assets
shall be free and clear of all Encumbrances.
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3.4
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Condition
Of Facilities . Each
item of Tangible Personal Property is in the repair and operating
condition in which it is found—as is, where is—ordinary
wear and tear having been inspected and acknowledged by the Buyer,
is in an environmentally clean condition, with all Hazardous
Materials, including residues, removed, and is suitable for
immediate removal.
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3.5
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Legal
Proceedings; Orders.
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3.5.1
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There is no
pending or, to Seller's Knowledge, threatened
Proceeding:
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(i)
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by or against
Seller or that otherwise relates to or may affect the business of,
or any of the assets owned or used by, Seller; or (ii) that
challenges, or that may have the effect of preventing, delaying,
making illegal or otherwise interfering with, any of the
Contemplated Transactions.
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To the
Knowledge of Seller, no event has occurred or circumstance exists
that is reasonably likely to give rise to or serve as a basis for
the commencement of any such Proceeding. There are no Proceedings
that could have a material adverse effect on the business,
operations, assets, condition or prospects of Seller or upon the
Assets.
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3.5.2
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There is no
Order to which Seller, its business or any of the Assets is
subject; and to the Knowledge of Seller, no officer, director,
agent or employee of Seller is subject to any Order that prohibits
such officer, director, agent or employee from engaging in or
continuing any conduct, activity or practice relating to the
business of Seller.
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3.6
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Environmental Matters.
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3.6.1
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Seller is, and
at all times has been, in full compliance with, and has not been
and is not in violation of or liable under, any Environmental Law.
Seller has no basis to expect, nor has any other Person for whose
conduct they are or may be held to be responsible received, any
actual or threatened order, notice or other communication from (i)
any Governmental Body or private citizen acting in the public
interest or (ii) the current or prior owner or operator of any
Facilities, of any actual or potential violation or failure to
comply with any Environmental Law, or of any actual or threatened
obligation to undertake or bear the cost of any Environmental,
Health and Safety Liabilities with respect to the Gold Bar Assets,
including the construction, installation, operation, maintenance,
repair, modification, closure or storage of the Gold Bar Assets, or
any Facility on which the Gold Bar Assets are or were
located.
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3.6.2
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There are no
pending or, to the Knowledge of Seller, threatened claims,
Encumbrances, or other restrictions of any nature resulting from
any Environmental, Health and Safety Liabilities or arising under
or pursuant to any Environmental Law with respect to or affecting
any of the Gold Bar Assets or any Facility on which the Gold Bar
Assets are or were located.
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3.6.3
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Seller has no
Knowledge of or any basis to expect, nor has any of them, or any
other Person for whose conduct they are or may be held responsible,
received, any citation, directive, inquiry, notice, Order, summons,
warning or other communication that relates to Hazardous Activity,
Hazardous Materials, or any alleged, actual, or potential violation
or failure to comply with any Environmental Law, or of any alleged,
actual, or potential obligation to undertake or bear the cost of
any Environmental, Health and Safety Liabilities with respect to
any of the Gold Bar Assets or the Facilities on which the Gold Bar
Assets are or were located.
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3.6.4
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Neither Seller
nor any other Person for whose conduct it is or may be held
responsible has any Environmental, Health and Safety Liabilities
with respect to any of the Gold Bar Assets or the Facilities on
which the Gold Bar Assets are or were located or, to the knowledge
of Seller, at any property geologically or hydrologically adjoining
any Facility on which the Gold Bar Assets are located.
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3.6.5
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There are no
Hazardous Materials present on or in the Environment at any
Facility on which the Gold Bar Assets are located or at any
geologically or hydrologically adjoining property, including any
Hazardous Materials contained in barrels, aboveground or
underground storage tanks, landfills, land deposits, dumps,
equipment (whether movable or fixed) or other containers, either
temporary or permanent, and deposited or located in land, water,
sumps, or any other part of such Facility or adjoining property, or
incorporated into any structure therein or thereon. Neither Seller
nor any Person for whose conduct it is or may be held responsible,
or to the Knowledge of Seller, any other
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