AMENDED AGREEMENT between IMAGENéT SYSTEMS, INC., and ROBERT F. FLAHERTY AGREEMENT entered into this 30th day of June, 1993, between IMAGENéT SYSTEMS, INC., a Colorado Corporation, hereinafter call IMAGENéT, and ROBERT F. FLAHERTY , hereinafter called...
AMENDED AGREEMENT between IMAGENéT SYSTEMS, INC., and XXXXXX X. XXXXXXXX
AGREEMENT entered into this 30th day of June, 1993, between IMAGENéT SYSTEMS, INC., a Colorado Corporation, hereinafter call IMAGENéT, and XXXXXX X. XXXXXXXX , hereinafter called XXXXXXXX (this reference shall include mineral ores and technology as described below which are owned by XXXXXXXX and others over which XXXXXXXX has the authority to bind for the tranfer of assets described below), or his assigns pursuant to paragraph 2.3 below;
WHEREAS IMAGENéT desires to acquire 100% of ownership (stock or ownership of assets) of XXXXXXXX mineral ores and technology as more particularly set out below, in exchange for an aggregate of 203,271,200 shares of the Common Stock of IMAGENéT, as described in the Letter of Intent attached hereto and made a part hereof, and more specifically referred to in Exhibit "A" hereto, said exchange to be all or partially tax free under Sec. 368 of the Internal Revenue Code; and
WHEREAS this agreement and its performance by XXXXXXXX have been authorized, approved, and found advisable by all of the owners and/or shareholders of XXXXXXXX; and
WHEREAS the owners and/or shareholders of XXXXXXXX as part of its approval of and subject to the same conditions as apply to this agreement, as set forth below, have approved a Plan of Complete Liquidation and Dissolution of XXXXXXXX pursuant to which the shares of IMAGENéT common stock received by XXXXXXXX will be distributed by XXXXXXXX ratably to its owners and/or shareholders in exchange for 100% of ownership (stock or ownership of assets); and
WHEREAS this agreement and its performance by IMAGENéT have been authorized and approved by the Board of Directors and shareholders of IMAGENéT; and
WHEREAS each of the owners and/or shareholders, as an inducement to and in consideration of IMAGENéT entering into this agreement, is willing to warrant to XXXXXXx T as hereinafter set forth:
1
NOW THEREFORE, in exchange for covenants contained herein and for other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, it is agreed:
1. Conditions to this agreement. This agreement and all undertakings herein and the performance thereof by the parties hereto are all conditioned upon the existence or happening of the following events at or within the respective times specified below with respect thereto, namely:
No material damage or destruction of property. No damage to or destruction of the property or assets of XXXXXXXX by fire, flood, tornado, explosion, or other casualty shall have occurred between June 1, 1993, and the time of closing which reduces the net book value at the date of such casualty of the property or assets of XXXXXXXX by more than $100,000, after first applying, in reduction thereof, the proceeds of all insurance or other sums recoverable by XXXXXXXX by reason of such occurrence; and no suit, action, or claim shall have been instituted, taken, or presented in such period which results or reasonably may result in a material loss to or disruption of XXXXXXXX'x business.
XXXXXXXX will provide prior to closing sufficient evidence of ownership rights to the assets transferred pursuant to this agreement.
IMAGENéT may in writing waive noncompliance with the requirements set out above, in whole or in part, at or prior to the time of closing.
2. Exchange of Consideration. The parties shall exchange consideration pursuant to this agreement as follows:
2.1 IMAGENéT shall transfer to XXXXXXXX 203,271,200 shares of common stock of IMAGENéT.
2.2 XXXXXXXX shall assign all right title and interest and agree to deliver to IMAGENéT head ore containing gold, silver and the platinum metals group consisting of platinum, palladium, rhodium, osmium, ruthenium and Iridium with a total gross value of SEVENTY FIVE MILLION DOLLARS (US$75,000,000.00). ("gross value" is the fair market value of the ore agreed to be $1,000 per ton) These ores shall be delivered from one or more sites at the option of XXXXXXXX including sites more particularly described in exhibit "C" attached
2
hereto and known as First Xxxxx and Duke's Xxxxx in Arizona. XXXXXXXX agrees to execute a document in recordable form indicating the assignment of these ores and consents to a recording in the land records office of the county where the proposed sites are located.
2.3 XXXXXXXX shall have the option to assign this contract to an existing corporation or a corporation to be formed by him with the resources covered by this contract, for the purpose of completing this reorganization.
3. Time and place of closing. The time of closing referred to in this agreement shall be July 29, 1993, Eastern Daylight Time, or such other time as may be agreed to in writing by XXXXXXXX and IMAGENéT. The place of closing shall be 000 Xxxxxxxx Xxxxxx, Xxxxx X, Xxxxxx Xxxx, Xxxxxxx, and close simultaneously at 0000 Xxxxxxxx Xxxxxxxxx Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx or at such other place as the parties may agree in writing.
4. Opinion of transferee's counsel. IMAGENéT shall furnish XXXXXXXX at the time and place of closing the opinion of IMAGENéT's counsel (a) that IMAGENéT is duly organized, existing, and in good standing under the laws of Colorado; (b) that the shares of IMAGENéT common stock which are to be transferred and delivered by IMAGENéT to the owners and/or shareholders of XXXXXXXX in exchange for the consideration as set out above, will constitute duly authorized, issued, and outstanding fully paid and nonassessable shares of the common stock of IMAGENéT, and that good title to such shares will be, upon the receipt by IMAGENéT of evidence of 100% of ownership (stock or ownership of assets) and the delivery in exchange therefor of such shares of common stock of IMAGENéT, transferred by IMAGENéT to XXXXXXXX; (c) that between June 1, 1993 and the time of closing IMAGENéT has not authorized, declared, paid, or effected any stock dividend or split-up of shares of its common stock or any issuance, pro rata, to its common shareholders, of option or rights to subscribe to shares of its common stock, or any extraordinary cash dividend upon its shares of common stock without the consent of Xxxxxxxx.
5. Opinion of counsel for transferor. XXXXXXXX shall furnish IMAGENéT at the time and place of closing the opinion of XXXXXXXX'x counsel (a) that this agreement has been properly authorized, executed, and delivered by XXXXXXXX, and its performance by XXXXXXXX
3
has been properly authorized and approved; and that this agreement constitutes the legally valid and enforceable obligation and undertaking of XXXXXXXX in accordance with its terms and provisions, subject to the satisfaction of the conditions set forth in paragraph 1, above: (b) that neither this agreement, nor the transfer and delivery as herein agreed, of shares of IMAGENéT common stock to the owners and/or shareholders of XXXXXXXX requires any qualification or authorization under the laws of California, Arizona or Neveda; and (c) that 100% of ownership (stock or ownership of assets) to be transferred upon receipt by owners and/or shareholders of XXXXXXXX and delivery thereof and exchange therefore, constitute duly authorized, issued and outstanding fully paid and non-assessable ownership (stock or ownership of assets) of the assets described hereinabove and that those assets are not subject to interest or claims of any nature, other than those set out in Exhibit "D".
6. Additional agreements of IMAGENéT and XXXXXXXX. XXXXXXXX hereby further agrees with IMAGENéT:
(a) That prior to the time of closing XXXXXXXX will not have changed its name and neither XXXXXXXX nor any of the owners and/or shareholders will have given permission to any corporation, firm, or organization engaged in the businesses of XXXXXXXX to use the name XXXXXX X. XXXXXXXX or FIRST XXXXX MINING PROJECT alone or in combination with any other word or words.
(b) That after the execution of this agreement and prior to the time of closing the owners and/or shareholders of XXXXXX X. XXXXXXXX D/B/A FIRST XXXXX MINING PROJECT will consult with and give consideration to the advice of any officer or officers of IMAGENéT, or any of its representatives designated from time to time by IMAGENéT for such purpose, with respect to the operations and proposed transactions of XXXXXXXX; and that any of the XXXXXXXX records and assets may be checked or inspected by representatives of IMAGENéT at any time or from time to time during business hours, and that XXXXXXXX will make the same reasonably available for such purpose.
4
(c) That from time to time of the execution of this agreement until the time of closing, XXXXXXXX will maintain its usual insurance coverage in reasonably adequate amounts against damage and destruction of its properties and assets and converting its liabilities to others.
(d) That after the time of closing XXXXXXXX will file and prosecute such claims or suits for the refund of taxes, and make or file and prosecute such other claims or suits, in each case, for the recovery or collection of any sums which may or could be due it, in its name or otherwise, as IMAGENéT may request, or IMAGENéT may file, present, or prosecute such claims or suits in the name of "XXXXXXXX", or otherwise, but in each case all for the benefit of IMAGENéT, to which all amounts recovered thereby shall be remitted; and IMAGENéT shall hold XXXXXXXX harmless of and from all costs, expenses, and liabilities of or resulting from any such claims or suits or the making, filing, or prosecution thereof.
(e) That owners and/or shareholders of XXXXXXXX are not acquiring the shares of common stock of IMAGENéT provided, for the purpose of resale, and acknowledge that such shares are unregistered and subject to restrictions on transfer.
7. Warranties of IMAGENéT, XXXXXXXX and Owners and/or Shareholders. IMAGENéT and the XXXXXXXX owners and/or shareholders hereby jointly and severally warrant to each other as follows:
(a) That on June 4, 1993, there existed no liabilities or commitments of XXXXXXXX or IMAGENéT, contingent or absolute, matured or unmatured, except (1) those as to which the full amount is included or provided for as liabilities in XXXXXXXX'x balance sheet as of that date, and except (2) those incurred by XXXXXXXX or IMAGENéT, in the regular course of business, after such date, and except (3) other liabilities or commitments the aggregate amount of which does not exceed by more that $50,000 the aggregate amount of insurance proceeds recoverable by XXXXXXXX or IMAGENéT on account of or applicable to the satisfaction of such liabilities and commitments, if any.
5
(b) That between June 4, 1993 and the time of closing hereunder (1) all actions and transactions by or on behalf of XXXXXXXX and IMAGENéT will have been the regular course of business and in normal amounts, except the execution of this agreement and any acts or transactions herein agreed to or contemplated; and (2) no dividends or other distributions or loans upon any stock or assets of XXXXXXXX or IMAGENéT will have been made, declared, or paid; (3) XXXXXXXX and IMAGENéT will have continued in force and effect all insurance of the character and in the amounts theretofore carried by it; (4) no legal fees and no other fees, commissions, compensation, or expenses will have been incurred or paid by XXXXXXXX or IMAGENéT for or with respect to this agreement, its negotiation or consummation, other than legal fees in a reasonable amount for the time expended in connection therewith, the cost, not exceeding $10,000, of title searches, opinions, and guarantee policies with respect to the title of XXXXXXXX and IMAGENéT to the assets owned by XXXXXXXX and the cost of preparing and reviewing this Agreement and closing this transaction.
(c) That (1) between June 4, 1993 and the time of closing there will have been no increase in the salaries, compensation, bonuses, or wages or benefits paid or agreed to be paid to any owner, officer or director of XXXXXXXX or IMAGENéT; and (2) between June 4, 1993 and the time of closing there will have been no increase in the salary, compensation, bonus, wages, or benefits paid or agreed to be paid to any employee who is not an officer and director and whose rate of aggregate compensation or benefits is or is thereby increased to more than $10,000 a year.
(d) That at the time of closing (1) XXXXXXXX and IMAGENéT will not be in default on or under any indebtedness, lease, franchise, or contract; (2) all income tax and other government returns and reports required of XXXXXXXX and IMAGENéT will have been duly and timely filed and XXXXXXXX will have given no waivers or extensions of any statute of limitations with respect to any income or other taxes other than waivers or extensions consented to in advance by IMAGENéT; (3) there will exist no contract or order for the purchase of merchandise or services except
6
those made or placed in the regular course of business.
(e) XXXXXXXX represents and warrants that he has the authority to enter into the agreement represented by this contract and to effect the transfers of interests necessary to close the terms of this contract.
8. Successors. This agreement shall be binding upon and inure to the benefit of the respective parties hereto, their heirs, representatives, successors, and assigns, provided, however, that neither this agreement nor its rights hereunder may be assigned by IMAGENéT or XXXXXXXX.
9. Counterparts. This agreement may be executed in several counterparts, which, taken together, shall constitute one document, which shall become binding when:
(a) Counterparts, which in total contain signatures of XXXXXXXX and of each owner and/or shareholder, have been delivered to IMAGENéT, and
(b) One counterpart signed by IMAGENéT has been delivered to and signed by XXXXXXXX.
IN WITNESS WHEREOF the parties hereto have hereunto set their respective hands and seals or have caused these presents to be executed in their respective names and their respective corporate seals to be hereunto affixed and attested by their respective officers thereunto duly authorized, the day and year first hereinabove written.
| IMAGENéT SYSTEMS, INC. | (SEAL) | by: | /s/ Xxx X. Xxxxx -------------------------------------------------- | Xxx X. Xxxxx, President | XXXXXX X. XXXXXXXX | WITNESS: | by: | /s/ Xxxxxx X. Xxxxxxxx -------------------------------------------------- | /s/ --------------------------------------------------- | Xxxxxx X. Xxxxxxxx | by: | /s/ Xxxxx Xxx Xxxxxxxx -------------------------------------------------- | Xxxxx Xxx Xxxxxxxx |
7 | |||||||||||||||||||||||||||||||||||||
