SHARE EXCHANGE AGREEMENT
Exhibit
99.1
This
Share Exchange Agreement (this "Agreement") is made and entered into on April
11, 2007, by and among Pacific Copper Corp., a Delaware corporation, as buyer
(the "Company"); and Xxxxx Xxxxxxx (“Xxxxxxx”) for a Peruvian corporation to be
formed by Xxxxxxx ("Peru Co."); and the persons executing this Agreement in
their capacity as shareholders of Peru Co. (the "Shareholders").
R
E C I T A L S:
A. As
of
Closing, the Shareholders will own of record and beneficially all of the issued
and outstanding shares of capital stock of Peru Co. (the "Peru Co. Shares")
as
set out on Schedule A in the amounts opposite their names;
B. The
Shareholders desires to sell to the Company, and the Company desires to purchase
from the Shareholders, the Peru Co. Shares, on the terms and subject to the
conditions of this Agreement;
X. Xxxxxxx
on behalf of Peru Co. and the Board of Directors of the Company have approved
the execution of this Agreement and performance of the parties' respective
obligations herein; and
D. As
of
Closing, Peru Co. will own or have the exclusive right to explore the mineral
claims located in Peru and more particularly described in Schedule 4.14 of
this
Agreement (collectively referred to herein as the “Properties”);
NOW,
THEREFORE, for and in consideration of the premises and the mutual promises
and
undertakings contained herein, and for other good and valuable consideration,
and subject to the terms and conditions of this Agreement, the parties hereto
agree as follows:
1. THE
EXCHANGE.
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1.1 Sale
and Purchase of the Peru Co. Shares.
On the
terms and subject to conditions of this Agreement, at the Closing (defined
below), the Shareholders shall sell, transfer, assign, convey and deliver to
the
Company, free and clear of all adverse claims, security interests, liens, claims
and encumbrances (other than restrictions under applicable securities laws
or as
expressly agreed to herein by the Company), and the Company shall purchase,
accept and acquire all of the Peru Co. Shares from the Shareholders, such
purchase and sale being herein sometimes referred to as the "Exchange." The
Company shall receive good and merchantable title to the Peru Co. Shares. It
is
intended among all the parties that the Exchange shall constitute a tax-free
reorganization within the meaning of Sections 351 and 368(a)(1)(B) of the United
States Internal Revenue Code of 1986, as amended (the "Code") and any similar
tax laws or regulations providing for tax-free share exchanges in
Peru.
1.2 Deposit.
Upon
execution of this Agreement the Company shall issue a deposit in the amount
of
US $25,000 payable to Peru Co. or to who it may designate, to be applied only
to
costs of Peru Co. for incorporation and other expenses related to the completion
of this Agreement and the condition set out herein.
1.3 Issuance
of Exchange Shares.
In full
payment for the Peru Co. Shares, the Company shall ratably issue and deliver
to
the Shareholders, an aggregate of 4,850,000 common shares of the Company, to
the
Shareholders in the number set out opposite the Shareholders name in Schedule
A
to this Agreement (the "Exchange Shares"). The Exchange Shares, will, when
issued, be validly issued, fully paid, and nonassessable; the sale, issuance
and
delivery of the Exchange Shares on the terms herein contemplated has been
authorized by all requisite corporate action of the Company; and the Exchange
Shares will not be subject to any preemptive rights, options or similar rights
on the part of any shareholder or creditor of the Company or any other person.
The Exchange Shares will be issued at Closing (as defined below) pursuant to
an
exemption from registration under the Securities Act of 1933, as amended (the
“Securities Act”) pursuant to Section 4(2) of the Securities Act under the
Securities Act. Upon issuance, the Exchange Shares will be considered
“restricted” shares and may not be transferred or re-sold unless an exemption
for such transfer is available or the re-sale is covered by a registration
statement filed under the Securities Act. The Company agrees to register the
re-sale of the Exchange Shares as provided below.
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1.4 Registration
Statement.
Promptly
following execution of this Agreement, the Company will prepare on Form SB-2
and
file with the SEC a registration statement covering the re-sale of the Exchange
Shares by their respective holders to be identified in the registration
statement (the “Registration Statement”). The Company shall use its best efforts
to have the Registration Statement declared effective by the SEC as soon as
practicable. The Company shall notify the Shareholders by facsimile or e-mail
as
promptly as practicable, after the Registration Statement is declared effective
and shall simultaneously provide the Shareholders with copies of any related
Prospectus to be used in connection with the sale or other disposition of the
Exchange Shares covered thereby, if required by the Shareholders. The Company
agrees to keep the Registration Statement effective for not less than two years.
The Company will bear all costs of preparing and filing the Registration
Statement. The Shareholders agree to provide such information about themselves
as is required to prepare the Registration Statement.
1.5 Restrictive
Legend on Shares. When
issued the certificates evidencing the Exchange Shares will bear a restrictive
legend substantially in the following form: This legend may be removed by the
Company’s transfer agent following effectiveness of the Registration Statement
at such time as shares represented by the certificate are sold pursuant to
the
prospectus contained in the Registration Statement.
"The
shares represented by this Certificate have not been registered under the
Securities Act of 1933, as amended (the "Act"), and are "restricted securities"
as that term is defined in Rule 144 under the Act. These shares may not be
offered for sale, sold or otherwise transferred except pursuant to an effective
registration statement under the Act, or pursuant to an exemption from
registration under the Act."
1.6 Lock
Up Agreement.
The
Exchange Shares will be subject to a Lock Up Agreement providing that they
may
not be sold until one year after the date of Closing of this Agreement. In
addition to the above legend referenced in Section 1.5, the Exchange Shares
when
issued shall contain a legend setting out that they cannot be sold before the
expiry of one year.
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1.7 Closing.
Subject
to the conditions precedent set forth herein, the Closing of all transactions
herein contemplated ("Closing") shall take place within 60 days of the execution
of this Agreement by all of the parties, at a place and time mutually agreed
upon by Peru Co. and the Company ("Closing Date") or such other date as the
parties may agree. This Agreement shall be effective and binding when signed
by
all parties.
1.8 Resignation
of Officers and Directors of Peru Co.
At the
Closing, the current officers and directors of Peru Co. shall resign and
immediately following Closing the appropriate persons shall be elected by the
Company (as Peru Co.’s sole shareholder) as the directors of Peru Co. The new
board of directors of Peru Co. shall appoint Xxxxxx Styles as General Manager
and such other officers as it deems appropriate.
1.9 Appointment
of Officers and Directors of the Company.
Following the Closing Date, the Company’s Board of Directors shall cause the
resignation of two of the present five Board members and appoint Xxxxx Xxxxxxx
and Xxxxxxx Xxxxxxxx as directors of the Company.
1.10 Further
Assurances.
Peru
Co. and the Shareholders agree to execute all documents and instruments and
to
take or to cause to be taken all actions which the Company deems necessary
or
appropriate to complete the transactions contemplated by this Agreement, whether
before or after the Closing.
1.11 Public
Filing.
Upon
execution of this Agreement, the Company shall prepare and file such documents
as are necessary to comply with all applicable U.S. Securities Laws and
regulations, including a prospectus supplement and a current report on Form
8-K.
The parties agree to cooperate in the preparation of such filings.
2. OTHER
AGREEMENTS OF THE PARTIES.
2.1 Peru
Co. to Provide Financial Records.
Peru
Co. at Closing shall provide financial records, including receipts for
incorporation costs and all other expenditures incurred since the date of
inception (collectively referred to herein as “Financial Data”).
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3. CAPITALIZATION.
3.1 The
Company's Capitalization at Closing.
Immediately prior to the Closing, the Company shall have issued and outstanding
common stock of not more than
27,500,000
shares of common stock. No shareholder of the Company has or will have any
preemptive right or similar right to purchase the Exchange Shares or other
stock
of the Company, except warrant holders of the current $2,500,000 financing,
who
will have the right to purchase up to 2,500,000 common shares at $0.75 per
share. The Company reserves the right to issue options to officers, directors,
consultants and employees which may occur prior to the Closing
Date.
4. REPRESENTATIONS
AND WARRANTIES OF PERU CO. AND SHAREHOLDERS.
Peru Co.
and the Shareholders hereby represent and warrant to the Company that the
following will be true and correct as of the Closing Date:
4.1 Organization
and Standing.
Peru Co
on the Closing Date will be duly organized, validly existing and in good
standing under the laws of Peru, with all requisite power and authority to
carry
on the business in which it is engaged, to own the Properties and other assets
it owns, and is duly qualified and licensed to do business and is in good
standing in all jurisdictions where the nature of its business makes such
qualification necessary.
4.2 Capitalization.
Other
than the Peru Co. Shares, no other shares of capital stock are authorized or
have been issued. All of the two hundred (200) issued and outstanding share
of
capital stock of Peru Co. have been duly authorized, validly issued, and are
fully paid and nonassessable. Peru Co. does not have outstanding any option,
warrant or similar instrument and is not a party to or bound by any agreement,
instrument, arrangement, contract, obligation, commitment or understanding
of
any character, whether written or oral, express or implied, whereby Peru Co.
is
bound to issue shares of its capital stock or any instrument or right
convertible into or exchangeable for shares of its capital stock, nor relating
to the sale, assignment, encumbrance, conveyance, transfer or delivery of any
capital stock of Peru Co. of any type or class.
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4.3 Litigation.
There
are no claims, actions, suits, proceedings or investigations pending or
threatened against or affecting Peru Co. or any of its properties or assets
in
any court or by or before any governmental department, commission, board,
bureau, agency or other instrumentality, domestic (Peruvian) or foreign, or
arbitration tribunal or other forum which, if determined adversely to Peru
Co.,
would materially affect its business, prospects, Properties or financial
condition or Peru Co.'s right to conduct its mineral exploration business as
being conducted or expected to be conducted. There are no judgments, decrees,
injunctions, writs, orders or other mandates outstanding to which Peru Co.
is a
party or by which it is bound or affected.
4.4 Estoppel.
All
statements made in this Agreement, or in any Exhibit or Schedule hereto, or
in
any document or certificate executed and delivered herewith, by Peru Co. are
true, correct and complete as of the date of this Agreement and will be so
as of
the Closing Date. All statements contained in any certificate made by any
official of Peru Co. and delivered to the Company shall be deemed
representations and warranties of Peru Co and the Shareholders.
4.5 Compliance
with Laws and Permits.
To the
best of its knowledge, Peru Co. has complied in all material respects with
its
organizational documents, including its articles of incorporation and bylaws
(each as amended to date), all applicable laws, regulations and rules, all
applicable orders, judgments, writs, decrees or injunctions of any local or
county governments or any department, agency or other instrumentality thereof,
domestic (Peruvian) or foreign, applicable to its business or Properties, and
has not done or omitted to do any act or acts which singly or in the aggregate
are in violation of any of the foregoing. To the best of its knowledge, Peru
Co.
has obtained all licenses and permits necessary to own and explore its
Properties and carry out its operations, is not in violation of any such license
or permit and has not received any notification that any revocation or
limitation thereof is pending or threatened.
4.6 No
Undisclosed Material Liabilities.
Peru
Co. has not incurred any liabilities or obligations whatever (whether direct,
indirect, accrued, contingent, absolute, secured or unsecured or otherwise)
affecting or related to the Properties, including liabilities as mortgagor,
guarantor or surety or otherwise for debts or the obligations of others and
tax
liabilities due or to become due, except as described in SCHEDULE 4.6. There
is
no basis for any material claim against Peru Co.'s Properties or assets, except
as disclosed in writing to the Company in SCHEDULE 4.6. Peru Co. has no
creditors or agreement with another third party whose prior consent might be
required by law to the sale of the Properties.
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4.7 Material
Transactions and Adverse Changes.
Except
as has been disclosed in writing to the Company in the schedules to this
Agreement, Peru Co. has not and as of the Closing Date will not have: (i)
suffered any material adverse change in its assets taken as a whole; (ii)
suffered any damage or destruction in the nature of a casualty loss to any
one
or more of its assets, whether or not covered by insurance, which singly or
in
the aggregate are materially adverse to the properties or business of Peru
Co.;
(iii) made any change in any method of accounting or accounting practice,
including the revaluation of any of its assets; or (iv) agreed in writing or
otherwise to take any action prohibited by this Agreement.
4.8 Taxes.
All
taxes applicable to Peru Co., its Properties or other assets and/or to the
Peru
Co. Shares (including the transfer of such Peru Co. Shares), including any
income, excise, unemployment, occupational, franchise, ad valorem and other
taxes, duties, assessments or charges levied, assessed or imposed upon Peru
Co.
by the Government of Peru or any other government or subdivision or
instrumentality thereof have been duly paid (or will be paid as of the Closing
Date) or adequately disclosed to the Company and provided for, and all required
tax returns or reports concerning any such items have been duly filed. Peru
Co.
has not waived any statute of limitations with respect to any tax liability
whatever for any period prior to the date of this Agreement or agreed to any
extension of time with respect to a tax assessment or liability.
4.9 Indebtedness
to and from Affiliates.
Peru
Co. is not indebted to any officer, director, employee or shareholder thereof,
or any affiliate of such persons, as of the date of this Agreement, and no
money
or property is owed to Peru Co. by any officer, director, employee or
shareholder thereof or any affiliate of such persons, and none will be owed
as
of the Closing Date.
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4.10 Documents
Genuine.
All
originals and/or copies of Peru Co. organizational documents, including articles
of incorporation and bylaws, each as amended to date, and all minutes of
meetings and written consents of directors and shareholders in lieu of meetings
of directors and/or shareholders of Peru Co., Financial Data, and any and all
other documents, material, data, files, or information which have been or will
be furnished to the Company, are and will be true, complete, correct and
unmodified originals and/or copies of such documents, information, data, files
or material.
4.11 Employees
and Salaries.
Peru
Co. will have no employees at the Closing Date.
4.12 Authorization
and Validity.
The
execution, delivery and performance by Peru Co. of this Agreement and any other
agreements contemplated hereby, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized by Peru Co. and
all
necessary approvals of the Shareholders of Peru Co. will have been obtained
by
the Closing Date. This Agreement and any other agreement contemplated hereby
have been or will be as of the Closing Date duly executed and delivered by
Peru
Co. and constitutes and will constitute legal, valid and binding obligations
of
Peru Co., enforceable against it in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally or the availability of equitable
remedies.
4.13 Consents;
Approvals; Conflict.
No
consent, approval, authorization or order of any court or governmental agency
(including the Government of Peru and any agency that regulates mining
exploration, development or extraction in Peru) or other body is required for
the Shareholders to consummate the Exchange. Neither the execution, delivery,
consummation or performance of this Agreement shall conflict with, or constitute
a breach of any law or regulation in Peru, and no prior approval is necessary
by
or under, Peru Co.’s articles of incorporation, bylaws or any note, mortgage,
indenture, deed of trust, lease, obligation, or other agreement or instrument
to
which Peru Co. is a party.
4.14 Property.
Attached to this Agreement as SCHEDULE 4.14 is a description of all mineral
claims owned or which Peru Co. has the exclusive right to explore. Peru Co.
represents and warrants that it has registered rights to those mineral claims,
free of all regulatory, liens or encumbrances and will have such registered
rights at Closing. Peru Co. will provide at Closing, proof of clear title or
right to the mineral claims included in SCHEDULE 4.14.
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4.15 Restrictive
Covenants.
Prior
to the consummation of the Exchange, Peru Co. shall conduct its business in
the
ordinary and usual course without unusual commitments and in compliance with
all
applicable laws, rules, and regulations. Furthermore, Peru Co. will not, without
the prior written consent of the Company, (i) make any changes in its capital
structure, (ii) incur any liability or obligation other than current liabilities
incurred in the ordinary and usual course of business, (iii) incur any material
indebtedness for borrowed money, (iv) make any loans or advances other than
in
the ordinary and usual course of business, (v) declare or pay any dividend
or
make any other distribution with respect to its capital stock, (vi) issue,
sell,
or deliver or purchase or otherwise acquire for value any of its stock or other
securities, or (vii) mortgage, pledge, or subject to encumbrance any of its
assets or Properties or sell or transfer any of its assets or
Properties.
4.16 Disclaimer
of Further Warranties; Etc.
Except
as expressly set forth in this Agreement and the Schedules and Exhibits hereto,
the Company has made no other representation or warranty to Peru Co. or the
Shareholders in connection with the Exchange. Peru Co.'s and the Shareholder’s
decision to enter into the Exchange is based upon their own independent judgment
and investigation and not on any representations or warranties of the Company,
other than those expressly stated in this Agreement and in the Schedules and
Exhibits hereto.
4.17 Environmental
Matters.
Peru
Co. the Shareholders or any predecessor entity controlled by the Shareholders
and or associates of the Shareholders
(a) has
not
(A) generated, used, transported, treated, stored, released or disposed of
any
hazardous substance in violation of any applicable laws; or (B) engaged in
any
generation, use, transportation, treatment, storage, release or disposal of
any
hazardous substance in connection with the conduct of its business or the use
of
any property or facility which has created or might reasonably be expected
to
create any liability under any applicable laws or which would require reporting
to or notification of any governmental entity and will not have at the Closing
Date.
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(b) has
not
(A) received notice that they are potentially responsible parties for an
environmental cleanup site or for corrective action under any applicable law;
(B) submitted or been required to submit any environmental notice pursuant
to
any applicable law; (C) received any written request for information in
connection with any environmental cleanup site; or (D) been required to
undertake any prospective or remedial action or clean-up action of any kind
at
the request of any governmental entity, or at the request of any other person,
relating to any applicable environmental law and will not have at the Closing
Date.
(c)
did, has
been and is being conducted in material compliance with all applicable
environmental laws.
(d) Peru
Co
and the Shareholders are not aware of any environmental claim, investigation
or
violation that would affect the ability of Peru Co. to explore the
Properties.
5. REPRESENTATIONS
AND WARRANTIES OF THE SHAREHOLDERS.
The
Shareholders represents and warrants to the Company that the following are
true
and correct as of the date hereof and will be true and correct through the
Closing Date as if made on that date:
5.1 Ownership
of the Peru Co. Shares. The
Shareholders own, of record and beneficially, the number of Peru Co. Shares
shown next to his name on Schedule A; the Shareholder’s shares are free and
clear of all liens, claims, rights or other encumbrances whatever and of all
options and similar rights of third persons; and no person has or will have
any
right in and to such share except as is created by force of any applicable
law.
No third party has or at Closing will have any right of first refusal,
pre-emptive right, option or similar right to acquire the shares of the
Shareholder except as disclosed to the Company in writing prior to the Closing.
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5.2 Full
right and Legal Capacity.
The
Shareholders have the full right, power and legal capacity to enter into this
Agreement and sell and deliver the Peru Co. Shares to the Company.
5.3 Solvency.
The
Shareholders represent and warrant that they are not now insolvent and will
not
be insolvent after selling and delivering the Peru Co. Shares to the Company
on
the terms of this Agreement, and in exchange for the Peru Co. Shares being
sold
hereby the Shareholders are receiving new consideration at least equal to the
full and fair value of the Peru Co. Shares being sold.
5.4 Acknowledgements
Regarding the Company and the Exchange Shares.
(a) Peru
Co.
and the Shareholders understand and acknowledge that the Company is a public
company with no current revenues. Each Shareholder recognizes that the Exchange
Shares are speculative and involve a high degree of risk, and that the prospects
and future success of the Company depend principally on its ability to raise
sufficient capital to carry out exploration on the Peru Co. mineral claims
and
its other mineral properties.
(b) The
Shareholders acknowledge and agree that their representatives have been
furnished with the Company’s Prospectus (for information purposes only) setting
out its business, assets, financial condition and plan of operation. The
Shareholders further represent that they have had an opportunity to ask
questions of and receive answers from the Company regarding the Company and
its
business, assets, results of operations, financial condition and plan of
operation and the terms and conditions of the issuance of the Exchange
Shares.
(c) In
connection with the issuance and delivery of the Exchange Shares, the
Shareholders understand and acknowledge that the Exchange Shares have not been
registered under the Securities Act and have been issued in reliance upon
exemptions from registration provided by Section 4(2) of the Securities Act
and
Regulation D promulgated under the Securities Act, on the grounds that the
transactions contemplated in this Agreement do not involve any public offering.
The Shareholders are acquiring the Exchange Shares for their own account, and
not for the account of any other person, and not for distribution, assignment
or
resale to others, or for pledge or hypothecation, and no other person has or
is
intended to have a direct or indirect ownership or contractual interest in
the
Exchange Shares except as may exist or arise by operation of law. The
Shareholders acknowledge that the Exchange Shares are "restricted securities"
as
that term is defined in Rule 144(a) of the General Rules and Regulations under
the Securities Act and understand that the Exchange Shares must be held
indefinitely until they are subsequently registered for re-sale under the
Securities Act as provided in this Agreement or an exemption from such
registration requirements is available for their re-sale. The Shareholders
understand and agree that the prior written consent of the Company will be
necessary for any transfer of the Exchange Shares until the Exchange Shares
have
been duly registered for re-sale as provided in this Agreement or the transfer
is made in accordance with Rule 144 or other available exemption under the
Act.
The Shareholders further understand that every certificate issued by the Company
evidencing Exchange Shares will bear a legend restricting transfer as provided
in this Agreement.
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(d) The
Shareholders, alone or together with their adviser(s), have such knowledge
and
experience in financial, tax and business matters as to enable the Shareholders
to utilize the information made available by the Company, in connection with
the
Exchange and issuance of the Exchange Shares, to evaluate the merits and risks
of acquiring the Exchange Shares and to make an informed investment decision
with respect thereto.
(e) The
Shareholders acknowledge that they have reviewed the Prospectus and current
disclosure filings of the Company for information purposes and that the Exchange
Shares are not being sold pursuant to the Prospectus.
5.5 True
and Correct Information and Material Changes. All
information which the Shareholders have provided or will provide to the Company
is or will be correct and complete as of the date furnished to the Company,
and,
if there should be any material change in such information prior to the Closing
as to Shareholders, will immediately provide the Company with such
information.
5.6 No
Solicitation.
Shareholders were not solicited by the Company by any form of general
solicitation or general advertising, including but not limited to any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio,
or
made available over telephone lines by any information service, or any seminar
or meeting whose attendees had been invited by any means of general solicitation
or general advertising.
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5.7 No
Other Representations or Warranties. Except
as
expressly set forth in this Agreement and the Schedules and Exhibits hereto,
the
Company has not made any representation or warranty to the Shareholders in
connection with this Agreement. The Shareholders’ decision to enter into the
Exchange is based upon their own independent judgment and investigation and
not
on any representations or warranties of the Company other than those expressly
stated in this Agreement and in the Schedules and Exhibits hereto.
5.8 No
Operations.
Other
than certain reimbursements paid to Peru Co. in connection with the transactions
contemplated by this Share Exchange Agreement, Peru Co. has not had any revenue
or operations since inception.
6. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
Unless
specifically stated otherwise, the Company represents and warrants to the other
parties that the following are true and correct as of the date hereof and will
be true and correct through the Closing Date as if made on that
date.
6.1 Organization
and Good Standing.
The
Company is and on the Closing Date will be duly organized, validly existing
and
in good standing under the laws of the State of Delaware.
6.2 Authorized
Capitalization.
As
provided in its Articles of Incorporation, the authorized capital stock of
the
Company consists of 200,000,000 common shares of common stock at par value
$.0001 per share, of which not more than 27,000,000 shares will be issued and
outstanding prior to the Closing and 50,000,000 shares, par value $.0001 per
share, are designated as preferred stock, none of which are issued or
outstanding or will be at Closing.
6.3 Declaration
of Interest. The
Company declares that in its decision to acquire Peru Co., it is relying on
independent legal, financial and tax experts and other technical personnel,
and
that the Company’s decision to enter into this Share Exchange Agreement is based
upon its own independent judgment, investigation and evaluation, and not on
any
representations or warranties of the Shareholders, other than those expressly
stated in this Agreement and in the schedules and exhibits hereto. Furthermore,
the Company hereby declares that its principle business is the acquisition,
exploration and development of mineral properties, both in the United States
and
in foreign countries and that it has the requisite technical and managerial
personnel and experience to conduct such business and that such technical and
managerial experience was employed in the evaluation of both the mineral
potential of the Peru Co.’s Property, as well as the business climate and
opportunities in Peru.
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6.4 Litigation.
There
are no claims, actions, suits, proceedings or investigations pending or
threatened against or affecting the Company in any court or by or before any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or other instrumentality, domestic or foreign, or arbitration
tribunal or other forum. There are no judgments, decrees, injunctions, writs,
orders or other mandates outstanding to which the Company is a party or by
which
it is bound or affected.
6.5 Authorization
and Validity.
The
execution, delivery and performance by the Company of this Agreement and any
other agreements contemplated hereby, and the consummation of the transactions
contemplated hereby and thereby, have been duly authorized by the Company.
This
Agreement and any other agreement contemplated hereby have been or will be
as of
the Closing Date duly executed and delivered by the Company and constitute
and
will constitute legal, valid and binding obligations of the Company, enforceable
against it in accordance with their respective terms, except as may be limited
by applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally or the availability of equitable remedies.
6.6 Taxes.
All
income, excise, unemployment, social security, occupational, franchise and
other
taxes, duties, assessments or charges levied, assessed or imposed upon the
Company by the United States or by any state or municipal government or
subdivision or instrumentality thereof have been duly paid or adequately
provided for, and all required tax returns or reports concerning any such items
have been duly filed or will be so filed.
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6.7 Indebtedness
to or from Affiliates.
The
Company is not and will not be indebted to any officer, director, employee
or
shareholder thereof as of the Closing Date. No money or property is owed to
the
Company by any officer, director, employee or shareholder thereof, and none
will
be owed as of the Closing.
6.8 Consents;
Approvals; Conflict.
No
consent, approval, authorization or order of any court or governmental agency
or
other body is required for the Company to execute and perform its obligations
under this Agreement. Neither the execution, delivery, consummation nor
performance of this Agreement shall conflict with, constitute a breach of the
Company's articles of incorporation and bylaws, as amended to date, or any
note,
mortgage, indenture, deed of trust or other agreement of instrument to which
the
Company is a party or by which it is bound nor, to the best of the Company's
knowledge and belief, any existing law, rule, regulation, or any decree of
any
court or governmental department, agency, commission, board or bureau, domestic
or foreign, having jurisdiction over the Company. The Company has timely,
accurately, and completely filed all reports, statements and schedules required
under applicable federal and state securities laws with the U.S. Securities
and
Exchange Commission and all governing securities authorities, if any.
6.9 Disclaimer
of Further Warranties; Etc.
Except
as expressly set forth in this Agreement and the Schedules and Exhibits hereto,
neither Peru Co. nor the Shareholders have made any other representation or
warranty to the Company in connection with the Exchange. The Company's decision
to enter into the Exchange is based upon the Company's own independent judgment
and investigation and not on any representations and warranties of Peru Co.
or
the Shareholders other than those expressly stated in this Agreement and in
the
Schedules and Exhibits hereto.
7. CONDITIONS
TO OBLIGATIONS OF THE PARTIES; DELIVERIES.
All
obligations of the parties under this Agreement are subject to the fulfillment,
prior to the Closing, of all conditions precedent and to performance of all
covenants and agreements and completion of all deliveries contemplated herein,
unless specifically waived in writing by the party entitled to performance
or to
demand fulfillment of the covenant or delivery of the documents.
-15-
7.1 Documents
to be delivered by Peru Co. to the Company.
At the
Closing, the following documents shall be delivered to the Company by Peru
Co.
or the Shareholders, as the case may be, which documents shall be reasonably
satisfactory in form and content to the Company's counsel:
(a) Certificates
executed by an authorized signing officer of Peru Co., dated as of the Closing
Date, certifying that the representations and warranties of Peru Co., contained
in this Agreement and the information set forth in all Schedules and Exhibits
of
Peru Co. hereto are then true and correct and that Peru Co. has complied with
all agreements and conditions required by this Agreement and all related
agreements to be performed or complied with by Peru Co.
(b) A
copy of
the directors' resolution or the minutes of the meeting of the directors of
Peru
Co. approving the execution and performance of this Agreement.
(c) The
certificates evidencing the Peru Co. Shares, indorsed on the reverse side for
transfer or accompanied by a signed stock power in form reasonably satisfactory
to the Company.
(d) All
completed Schedules and all Exhibits called for in this Agreement.
(e) A
legal
opinion of counsel to Peru Co., acceptable to the Company, covering: (i) the
existence and good standing of Peru Co. as a corporation in Peru, (ii) the
authorization of the transactions contemplated herein by Peru Co., (iii) the
valid issuance of the Peru Co. Shares that are to be exchanged hereunder, (iv)
the binding nature of this Agreement upon execution by Peru Co., and the
Shareholders, (v) no required consents of governmental agencies or private
third
parties for Peru Co. to consummate the transactions contemplated in this
Agreement and (vi) no violation of Peruvian law as a result of the Exchange
contemplated by this Agreement.
7.2 Documents
to be delivered to Peru Co. and the Shareholders.
At the
Closing the following documents shall be delivered to Peru Co. and the
Shareholders by the Company, which documents shall be reasonably satisfactory
in
form and content to Peru Co.'s counsel:
-16-
(a) To
the
Shareholders, stock certificates evidencing the Exchange Shares.
(b) To
Peru
Co., a certificate executed by the Company dated as of the Closing Date,
certifying that the representations and warranties of the Company contained
in
this Agreement and the information set forth in all Schedules and Exhibits
of
the Company are then true and correct and that the Company has complied with
all
agreements and conditions required by this Agreement to be performed or complied
with by it.
(c) To
Peru
Co., a copy of the directors' resolution or the minutes of the meeting of the
directors of the Company approving the execution and performance of this
Agreement.
(d) All
completed Schedules and all Exhibits called for in this Agreement.
8. OTHER
COVENANTS OF THE PARTIES.
The
parties agree that, prior to the Closing:
8.1 Effectuation
of this Agreement.
The
parties hereto each will use their best efforts to cause this Agreement and
all
related agreements to become effective, and all transactions herein and therein
contemplated to be consummated, in accordance with its and their terms, to
obtain all required consents, waivers and authorizations of governmental
entities and other third parties, to make all filings and give all notices
to
those regulatory authorities or other third parties which may be necessary
or
reasonably required in order to effect the transactions contemplated in this
Agreement, and to comply with all federal, local and state laws, rules and
regulations as may be applicable to the contemplated transactions in the United
States and in Peru.
8.2 Restriction
on Action.
The
parties each agree that they will not do any thing or act prohibited by this
Agreement or any related agreement, or fail to do any thing or act which he
or
it has undertaken to do in this Agreement or any related agreement.
-17-
8.3 No-Shop
Provision.
Peru Co.
and the Shareholders agree that, from the date hereof until Closing or
termination of this Agreement, neither will take any action, directly or
indirectly, to solicit indications of interest in, or offers for, any
transaction similar to the Exchange or any investment into Peru Co. from anyone
other than the Company. Peru Co. agrees promptly to inform the Company of any
offers or solicitations for a similar transaction, including the terms thereof,
made by any third party, provided that the foregoing shall not include casual
oral offers or solicitations not formally considered by Peru Co. Violation
by
Peru Co. of any of the requirements of this paragraph shall constitute a
material breach of this Agreement.
8.4 Confidentiality.
Peru Co.
the Shareholders and the Company covenant that they each will not disclose
any
confidential information of the other parties, except to its officers,
directors, attorneys, accountants, and employees involved in these transactions,
and only then on the condition that such individuals not disclose the
information disclosed to them. Notwithstanding the foregoing, the terms of
this
Agreement, or of any of the transactions contemplated hereby, may be disclosed
following execution hereof, provided that each party will provide at least
twenty-four hours' notice to the other party prior to making the initial public
announcement regarding the transaction. In addition, either party may disclose
this Agreement or any part hereof to any third party at any time if required
to
do so by law, this Agreement or other contractual obligation. Peru Co. and
the
Shareholders acknowledge that the Company is a reporting company in the United
States and that the Company will control the public dissemination of information
about this transaction.
9. SURVIVAL
OF COVENANTS AND WARRANTIES.
9.1 Survival
of Covenants and Warranties.
The
representations, warranties, covenants and agreements made by Peru Co. and
Shareholders on the one hand, and the Company on the other hand, shall survive
the Closing for a period of two years and shall be fully enforceable at law
or
in equity against such other party and its successors and assigns for a period
of one year after the Closing Date. Any investigation at any time made by or
on
behalf of (or any disclosure to) any party hereto shall not diminish in any
respect whatsoever its right to rely on the representations and warranties
of
the other party hereto.
-18-
9.2 Notice
of Claims.
The
Company, Peru Co. and the Shareholders each agree to give prompt written notice
to the other of any claim against the party giving notice which might give
rise
to a claim by it against the other party hereto, stating the nature and basis
of
the claim and the actual or estimated amount thereof.
10. TERMINATION
OF THIS AGREEMENT.
10.1 Grounds
for Termination.
This
Agreement shall terminate:
(a) By
mutual
written consent of the Company and Peru Co.; or
(b) By
Company or Peru Co., if:
(i) all
the
conditions precedent to its respective obligations hereunder have not been
satisfied or waived prior to the Closing Date, as it may be accelerated or
extended, or if Shareholders refuse to execute this Agreement;
(ii) any
party
shall have defaulted or refused to perform in any material respect under this
Agreement, or if the Company or Peru Co. should have reasonable cause to believe
there has been a material representation concerning, or failure or breach of,
any representation or warranty by the other party, or if it appears that either
Peru Co. or the Company has committed any unlawful acts affecting the other
party;
(iii) the
transactions contemplated in this Agreement and related agreements have not
been
consummated on the Closing Date, as it may be accelerated or extended,
OR
(iv) either
the Company or Peru Co. shall reasonably determine that the transactions
contemplated in this Agreement have become inadvisable by reason of the
institution or threat by any federal, state or municipal governmental
authorities or by other person whatever of a formal investigation or of any
action, suit or proceeding of any kind against either or both parties which
in
one party's reasonable belief is material in light of the other party's
business, prospects, properties or financial condition;
-19-
10.2 Manner
of Termination.
Any
termination of this Agreement (other than an automatic termination) shall be
made in accordance with the above listed grounds and, if terminated by Peru
Co.
or the Company, shall be accompanied by a copy of the resolution of the
terminating party's board of directors. Written notice of termination shall
be
given to the other party as required in this Agreement as promptly as is
practical under the circumstances. Upon a party's receipt of such termination
notice, this Agreement shall terminate and the transactions herein contemplated
shall be abandoned without further action by the parties.
10.3 Survival
of Confidentiality Provisions.
Upon
termination of this Agreement for any reason, (i) the covenants of the parties
concerning the confidentiality and proprietary nature of all documents and
other
information furnished hereunder shall remain in force except as to information
which has otherwise become public knowledge, and (ii) each party shall promptly
return all documents received from the other party in connection with this
Agreement. This Paragraph constitutes a mutual covenant of the parties, and
either may judicially enforce it.
11. MISCELLANEOUS
PROVISIONS.
11.1 Assignment.
Neither
this Agreement nor any right created hereby or in any agreement entered into
in
connection with the transactions contemplated hereby shall be assignable by
any
party hereto without the prior written consent of the parties not seeking
assignment, and any purported assignment without such consent shall be null
and
void and of no force or effect. No such assignment shall relieve the assignor
of
any obligations created under this Agreement.
11.2 Parties
in Interest; No Third Party Beneficiaries.
Except
as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the parties and their respective
heirs, legal representatives, successors and permitted assigns. Neither this
Agreement nor any other agreement contemplated hereby shall be deemed to confer
upon any person not a party hereto or thereto any rights or remedies hereunder
or thereunder, except as expressly set forth in this Agreement.
-20-
11.3 Entire
Agreement.
This
Agreement and the agreements contemplated hereby constitute the entire agreement
of the parties regarding the subject matter hereof, and supersede all prior
agreements and understandings, both written and oral, among the parties, or
any
of them, with respect to the subject matter hereof.
11.4 Severability.
If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws effective during the term hereof, such provision
shall be fully severable and this Agreement shall be construed and enforced
as
if such illegal, invalid or unenforceable provision never comprised a part
hereof; and the remaining provisions hereof shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom. Further, in lieu of such illegal,
invalid or unenforceable provision, there shall be added automatically as part
of this Agreement a provision as similar in terms to such illegal, invalid,
or
unenforceable provision as may be possible and be legal, valid and
enforceable.
11.5 Survival
of Representations, Warranties and Covenants.
The
representations, warranties and covenants of all parties contained herein shall
survive the Closing, and all statements contained in any certificate, exhibit
or
other instrument delivered by or on behalf of the Company or Peru Co., as the
case may be, and, notwithstanding any provision in this Agreement to the
contrary, shall survive the Closing.
11.6 Interpretation.
This
Agreement shall be governed by and construed under the laws of the State of
Delaware with the exception that if any provision of this Agreement is deemed
to
be in conflict with any treaty duly ratified between the Government of the
United States and the Government of Peru, including but not limited to tarrif
and trade agreements, tax treaties, general treaties of commerce and business,
or if any provision of the Agreement is deemed to be in conflict with any
pertinent provision of the Mining laws of Peru, then such provision shall be
governed by and interpreted under the law of the specific treaty as ratified
jointly by the governments, or in the case of a conflict of any of the
provisions herein with any of the provisions of the Mining Law of Peru, then
said provision shall be governed by and interpreted under the Mining Law of
Peru.
-21-
11.7 Captions.
The
captions in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect any of the terms or provisions hereof. Whenever the
context requires, the gender of all words used herein shall include the
masculine, feminine and neuter, and the number of all words shall include the
singular and plural. Use of the words "herein", "hereof", "hereto" and the
like
in this Agreement shall be construed as references to this Agreement as a whole
and not to any particular provision in this Agreement, unless otherwise noted.
11.8 Notice.
Any
notice or communication hereunder or in any agreement entered into in connection
with the transactions contemplated hereby must be in writing and given by
depositing the same in the United States mail, addressed to the party to be
notified, postage prepaid and registered or certified with return receipt
requested, by telefax transmission or by delivery by use of a messenger which
regularly retains its delivery receipts. Such notice shall be deemed received
on
the date on which it is delivered to the addressee. For purposes of notice,
the
addresses of the parties shall be, if to an Shareholders, sent to Peru Co.
for
forwarding, and:
|
If
to Peru Co.:
|
c/o
Xxxxxx Xxxxxxx
|
|
00000
X. 000XX XXXXXX
|
|
|
Xxxxx
Xxxxx, XX 00000
|
|
|
If
to Shareholders:
|
c/o
Xxxxx Xxxxxxx
|
|
0000
Xxxxx Xxxxxxxx Xxxxx
|
|
|
Xxxxxx
XX 00000
|
|
|
If
to Company:
|
0000
Xxxxx Xxxx Xxxx., Xxx 00X
|
|
Xxxxxxxx,
Xxxxxxx, Xxxxxx X0X
0X0
|
11.9 No
Brokers: Each
party represents and warrants to the others and agrees that it has not employed
or engaged, and will not employ or engage, any person as a finder or broker
in
connection with the transactions contemplated herein, and that no person is
entitled to compensation as a finder or broker. Each party hereby indemnifies
the other parties and holds the other parties harmless from and against any
claims of any third persons claiming to have acted as a finder or broker in
connection with the transactions herein contemplated, and such indemnity shall
include all expenses, costs and damages arising from or related to such claims,
including reasonable attorneys' fees.
-22-
11.10 Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the
same
instrument. Execution and delivery of this Agreement by exchange of facsimile
copies bearing facsimile signature of a party shall constitute a valid and
binding execution and delivery of this Agreement by such party. Such facsimile
copies shall constitute enforceable original documents. The Company shall be
responsible to provide each party to the Agreement, a fully executed copy once
all signatures have been received.
11.11 Prevailing
Party (Attorneys' Fees) Clause.
In the
event of any litigation or proceeding arising as a result of the breach of
this
Agreement or the failure to perform hereunder, or failure or untruthfulness
of
any representation or warranty herein, the party or parties prevailing in such
litigation or proceeding shall be entitled to collect the costs and expenses
of
bringing or defending such litigation or proceeding, including reasonable
attorneys' fees, from the party or parties not prevailing.
11.12 Relationship
of the Parties.
Nothing
in this Agreement is intended to be construed so as to suggest that the parties
hereto are partners or joint venturers, or that any party or its employees
is
the employee or agent of the other. Neither Peru Co. nor the Company has any
express or implied right or authority under this Agreement to assume or create
any obligations on behalf of or in the name of the other party to any contract,
agreement, arrangement, understanding or undertaking with any third
party.
11.13 No
Advice Given.
Peru
Co. and the Shareholders acknowledge and agree that they have neither asked
for
nor received any legal or tax advice from the Company or its Directors or any
other person associated with the Company in regard to this Agreement or the
transactions herein contemplated, and have instead relied on advice and counsel
furnished by their own legal or other advisers in order to satisfy themselves
as
to the tax and other legal implications to them of the Exchange and issuance
of
the Exchange Shares.
-23-
11.14 Expenses.
Except
as otherwise provided in this Agreement, Peru Co. shall bear the fees and
expenses incurred in connection with its performance of its obligations as
part
of the transactions contemplated herein.
11.15 Acknowledgment
by Shareholders.
The
Shareholders acknowledge and agree that their execution of this Agreement shall
constitute a written consent in lieu of a meeting of the shareholders of Peru
Co., and that no meeting of or written consent or other action by the
shareholder of Peru Co. is necessary to ratify the valid execution and
performance of this Agreement and consummation of the Exchange by Peru
Co.
IN
WITNESS WHEREOF, all parties have executed this Agreement, as of the date first
written above.
/s/
Xxxxxxxx
Xxxxxx
Title:
Corporate Secretary
Name:
Xxxxxxxx Xxxxxx
PERU
CO. a company to be incorporated
/s/
Xxxxx X.
Xxxxxxx
Name:
Xxxxx Xxxxxxx
THE
SHAREHOLDERS
/s
Xxxxx X.
Xxxxxxx
Signature:
Xxxxx
Xxxxxxx
Print
Name:
/s/
Xxxxxx Xx Xxx
Xxxxxx
Signature:
Xxxxxx
Xxxxxx
Print
Name:
-24-
Schedule
A
|
Name:
|
Peru
Co. Shares
|
Exchange
Shares
|
|
Xxxxx
Xxxxxxx
|
100
|
2,425,000
|
|
Xxxxxx
Xxxxxx
|
100
|
2,425,000
|
-25-
Schedule
4.14
Property
Description
|
TYPE
OF MINE
|
APPROXIMATE
UTM
|
MINE |
TOTAL
|
|||
|
PROPERTY
NAME
|
LOCATION
|
CONCESSION
|
N
X E AREA LOCATION
|
#
OF TITLE
|
OFFICE
|
HECTARES
|
|
XXXXXXX
XXXXXXXXX #5
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
01003412x01
|
AREQUIPA
|
3.819
|
|
XXXXXXX
XXXXXXXXX #7
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
01003460X01
|
AREQUIPA
|
86.804
|
|
XXXXXXX
XXXXXXXXX #8
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
01003461X01
|
AREQUIPA
|
89.985
|
|
XXXXXXX
XXXXXXXXX #12
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
01003552X01
|
AREQUIPA
|
48.000
|
|
XXXXXXX
XXXXXXXXX #15
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
01003579X01
|
AREQUIPA
|
74.991
|
|
XXXXXXX
XXXXXXXXX #18
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
01004496X01
|
AREQUIPA
|
15.329
|
|
XXXXXXX
XXXXXXXXX #21
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
10007895
|
AREQUIPA
|
0.744
|
|
XXXXXXX
XXXXXXXXX #22
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
50014804
|
AREQUIPA
|
77.546
|
|
XXX
XXXXXX #79
|
puquina
map nw quad
|
EXPLOITATION
|
8.162.000
X 238.500
|
01004187X01
|
AREQUIPA
|
599.898
|
|
TOTAL
HECTARES
|
997.116
|
|||||
|
*
HECTARES
ROUNDED
TO
NEAREST
.001
|
-26-