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As Of Filer Filing For·On·As Docs:Size Issuer Agent 8/21/09 Affinity Gold Corp. 8-K/A:2,3,5 5/08/09 9:9.8M Vintage/FA |
Document/Exhibit Description Pages Size 1: 8-K/A Amendment to Current Report HTML 1.38M 2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, HTML 242K Liquidation or Succession 3: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 8K 4: EX-10.2 Material Contract HTML 28K 5: EX-10.3 Material Contract HTML 8K 6: EX-23.1 Consent of Experts or Counsel HTML 12K 7: EX-99.1 Miscellaneous Exhibit HTML 15K 8: EX-99.2 Miscellaneous Exhibit HTML 9K 9: EX-99.3 Miscellaneous Exhibit HTML 6K
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(b)
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“Acquirer” means
Affinity Gold Corp., a corporation organized under the laws of the State
of Nevada, or any successor company, however formed, whether as a result
of merger, amalgamation or other
action;
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(d)
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“Acquirer’s Initial Due
Diligence” has the meaning ascribed to it in Article “5.1(b)”
hereinbelow;
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(e)
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“Acquirer Material Adverse
Effect” means a material adverse effect on Acquirer, a material
adverse effect on the ability of the Acquirer to perform its obligations
under this Agreement or on the ability of the Acquirer to consummate the
Takeover;
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(g)
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“Acquirer Stock” means
the 12,000,000 shares of common stock of the Acquirer to be issued and
delivered to the Vendors on a pro rata basis as the Consideration for the
Company Stock;
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(h)
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“Agreement” means this
“Share Exchange Agreement” as entered into among the Vendors, the Company
and the Acquirer herein, together with any amendments thereto and any
Schedules as attached thereto;
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(i)
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“Board of Directors”
means, as applicable, the respective Board of Directors of each of the
Parties hereto as duly constituted from time to
time;
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(j)
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“business day” means any
day that is not a Saturday, Sunday or other day on which commercial banks
in New York, New York, are authorized or required by law to remain
closed;
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(k)
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“Business Documentation”
means any and all records and other factual data and information relating
to the Company’s Business interests and assets and including, without
limitation, all plans, agreements and records which are in the possession
or control of the Vendors or the Company in that
respect;
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(p)
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“Company” means AMR
Project Peru, S.A.C., a corporation organized under the laws of Peru, or
any successor company, however formed, whether as a result of merger,
amalgamation or other action;
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(q)
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“Company’s Assets” means
all assets, contracts, mining concessions, licenses, permits, equipment,
structures, inventory, goodwill and Intellectual Property of the
Company;
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(s)
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“Company’s Financial
Statements” has the meaning ascribed to it in Article “3.3(i)”
hereinbelow;
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(t)
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“Company Stock” has the
meaning ascribed to it in recital “E.” hereinabove; the particulars of the
registered and beneficial ownership of such Company Stock being set forth
in Schedule “A” which is attached
hereto;
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(v)
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“Defaulting Party” and
“Non-Defaulting
Party” have the meanings ascribed to them in Article “12”
hereinbelow;
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(w)
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“Encumbrances” means
mortgages, liens, charges, security interests, encumbrances and third
party claims of any nature;
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(y)
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“Execution Date” means
the actual date of the complete execution of this Agreement and any
amendment thereto by all Parties hereto as set forth on the front page
hereof;
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(z)
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“Indemnified Party” and
“Indemnified
Parties” have the meanings ascribed to them in Article “7.1”
hereinbelow;
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(aa)
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“Intellectual Property”
means all right and interest to all patents, patents pending, inventions,
know-how, any operating or identifying name or registered or unregistered
trademarks and trade names, all computer programs, licensed end-user
software, source codes, products and applications (and related
documentation and materials) and other works of authorship (including
notes, reports, other documents and materials, magnetic, electronic, sound
or video recordings and any other work in which copyright or similar right
may subsist) and all copyrights (registered or unregistered) therein,
industrial designs (registered or unregistered), franchises, licenses,
authorities, restrictive covenants or other industrial or intellectual
property;
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(ac)
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“Parties” or “Party” means,
respectively, the Vendors, the Company and/or the Acquirer hereto, as the
case may be, together with their respective successors and permitted
assigns as the context so requires;
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(ad)
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“person” or “persons” means an
individual, corporation, partnership, party, trust, fund, association and
any other organized group of persons and the personal or other legal
representative of a person to whom the context can apply according to
law;
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(af)
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“Takeover” means that
transaction or series of transactions pursuant to which the Acquirer will
acquire all of the Company Stock of the Company from the Vendors in
exchange for the issuance by the Acquirer of 12,000,000 shares of common
stock of the Acquirer and all matters necessarily ancillary
thereto;
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(ah)
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“Vendors” means the
shareholders of the Company who have executed this Agreement as a Party
hereto.
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Schedule
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Description
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Schedule
“A”:
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Company
Stock and Vendors;
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Schedule
“B”
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Material
Contracts;
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Schedule
“C”
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Mining
Concession Rights and Permits
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Schedule
“D”
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Encumbrances;
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Schedule
“E”
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Pending,
Outstanding or Unresolved Claims or Grievances; and
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Schedule
“F”
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Banks
and Bank Accounts.
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(a)
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the
words “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular Article,
section or other subdivision of this
Agreement;
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(b)
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any
reference to an entity shall include and shall be deemed to be a reference
to any entity that is a permitted successor to such entity;
and
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(c)
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words
in the singular include the plural and words in the masculine gender
include the feminine and neuter genders, and vice
versa.
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(a)
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if
a corporation, it is duly organized under the laws of its respective
jurisdiction of incorporation and is validly existing and in good standing
with respect to all statutory filings required by the applicable corporate
laws;
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(b)
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it
is qualified to do business in those jurisdictions where it is necessary
to fulfill its obligations under this Agreement and it has the full power
and authority to enter into this Agreement and any agreement or instrument
referred to or contemplated by this
Agreement;
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(c)
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it
has the requisite power, authority and capacity to own and use all of its
respective business assets and to carry on its respective business as
presently conducted by it and to fulfill its respective obligations under
this Agreement;
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(d)
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the
execution and delivery of this Agreement and the agreements contemplated
hereby have been duly authorized by all necessary action, corporate or
otherwise, on its respective part;
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(e)
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there
are no other consents, approvals or conditions precedent to the
performance of this Agreement which have not been
obtained;
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(f)
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this
Agreement constitutes a legal, valid and binding obligation of it
enforceable against it in accordance with its terms, except as enforcement
may be limited by laws of general application affecting the rights of
creditors;
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(g)
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no
proceedings are pending for, and it is unaware of, any basis for the
institution of any proceedings leading to its respective dissolution or
winding up, or the placing of it in bankruptcy or subject to any other
laws governing the affairs of insolvent companies or
persons;
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(h)
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the
making of this Agreement and the completion of the transactions
contemplated hereby and the performance of and compliance with the terms
hereof does not and will not:
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(i)
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if
a corporation, conflict with or result in a breach of or violate any of
the terms, conditions or provisions of its respective organizational
documents;
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(ii)
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conflict
with or result in a breach of or violate any of the terms, conditions or
provisions of any law, judgment, order, injunction, decree, regulation or
ruling of any Court or governmental authority, domestic or foreign, to
which it is subject, or constitute or result in a default under any
agreement, contract, license, permit, or commitment to which it is a
party;
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(iii)
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give
to any party the right of termination, cancellation or acceleration in or
with respect to any agreement, contract, license or commitment to which it
is a party;
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(iv)
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give
to any government or governmental authority, or any municipality or any
subdivision thereof, including any governmental department, commission,
bureau, board or administration agency, any right of termination,
cancellation or suspension of, or constitute a breach of or result in a
default under, any permit, license, control or authority issued to it
which is necessary or desirable in connection with the conduct and
operations of its respective business and the ownership or leasing of its
respective business assets; or
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(v)
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constitute
a default by it, or any event which, with the giving of notice or lapse of
time or both, might constitute an event of default, under any agreement,
contract, indenture or other instrument relating to any indebtedness of it
which would give any party to that agreement, contract, indenture or other
instrument the right to accelerate the maturity for the payment of any
amount payable under that agreement, contract, indenture or other
instrument; and
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(i)
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neither
this Agreement nor any other document, certificate or statement furnished
to the Acquirer by or on behalf of any of the Vendors or the Company in
connection with the transactions contemplated hereby knowingly or
negligently contains any untrue or incomplete statement of material fact
or omits to state a material fact necessary in order to make the
statements therein not misleading which would likely affect the decision
of the Acquirer to enter into this
Agreement;
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(j)
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this
Agreement has been duly authorized, executed and delivered by the Vendors
and the Company and is a legal, valid and binding obligation of each of
the Vendors and the Company, enforceable against each of the Vendors
and/or the Company, as the case may be, by the Acquirer in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency
and other laws affecting the rights of creditors generally and except that
equitable remedies may be granted only in the discretion of a court of
competent jurisdiction;
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(k)
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no
person other than the Acquirer has any written or oral agreement or option
or any right or privilege (whether by law, pre-emptive or contractual)
capable of becoming an agreement, or option for the purchase or
acquisition from the Vendors of any of the Company
Stock;
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(l)
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the
Company Stock is beneficially owned by the Vendors with good and
marketable title thereto free of all Encumbrances and is registered in the
books of the Company in the name of the Vendors and, without limitation
thereto, none of the Company Stock is subject to any voting trust,
unanimous shareholders agreement, other shareholders agreements, pooling
agreements or voting agreements;
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(m)
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upon
completion of the transactions contemplated by this Agreement, all of the
Company Stock will be owned by the Acquirer as the beneficial owner of
record, with good and marketable title thereto (except for such
Encumbrances as may have been granted by the
Acquirer);
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(n)
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the
Vendors are domiciled in Peru for purposes of Peruvian tax legislation,
which means they have physically remained in Peru for more than 183 days
from January 1, 2008 to December 31, 2008;
and
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(o)
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the
Vendors have no information or knowledge of any fact not communicated to
the Acquirer and relating to the Company or to the Company’s Business or
to the Company Stock which, if known to the Acquirer, might reasonably be
expected to deter the Acquirer from entering into this Agreement or from
completing the transactions contemplated by this
Agreement.
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(a)
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the
Vendors have good and marketable title to and are the legal and beneficial
owner of all of the Company Stock, and each share of the Company Stock is
fully paid and non-assessable and is free and clear of liens, charges,
encumbrances, pledges, mortgages, hypothecations, security interests and
adverse claims of any and all nature whatsoever and including, without
limitation, options, pre-emptive rights and other rights of acquisition in
favor of any person, whether conditional or
absolute;
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(b)
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the
Vendors have the power and capacity to own and dispose of the Company
Stock, and the Company Stock is not subject to any voting or similar
arrangement;
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(c)
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there
are no actions, suits, proceedings or investigations (whether or not
purportedly against or on behalf of the Vendors or the Company), pending
or threatened, which may affect, without limitation, the rights of the
Vendors to transfer any of the Company Stock to the Acquirer at law or in
equity, or before or by any federal, state, provincial, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, and, without limiting the generality
of the foregoing, there are no claims or potential claims under any
relevant family relations legislation or other equivalent legislation
affecting the Company Stock. In addition, the Vendors are not
now aware of any existing ground on which any such action, suit or
proceeding might be commenced with any reasonable likelihood of
success;
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(d)
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no
other person, firm or corporation has any agreement, option or right
capable of becoming an agreement for the purchase of any of the Company
Stock;
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(e)
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the
Vendors acknowledge that the Acquirer Stock will be issued under certain
exemptions from the registration and prospectus filing requirements
otherwise applicable under the Securities Act, and that, as a result, the
Vendors may be restricted from using most of the remedies that would
otherwise be available to the Vendors, the Vendors will not receive
information that would otherwise be required to be provided to the Vendors
and the Acquirer is relieved from certain obligations that would otherwise
apply to the Acquirer, in either case, under applicable securities
legislation;
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(f)
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the
Vendors have not received, nor have the Vendors requested nor do the
Vendors require to receive, any offering memorandum or a similar document
describing the business and affairs of the Acquirer in order to assist the
Vendors in entering into this Agreement and in consummating the
transactions contemplated herein;
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(g)
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the
Vendors acknowledge and agree that the Acquirer Stock has not been and
will not be qualified or registered under the securities laws of the
United States or any other jurisdiction and, as such, the Vendors may be
restricted for a period of at least 12 months from selling or transferring
such Acquirer Stock under applicable
law;
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(h)
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the
Vendors are resident in the jurisdiction as set forth under the Vendors’
address in Schedule “A” which is attached hereto, and that all
negotiations and other acts in furtherance of the execution and delivery
of this Agreement by the Vendors in connection with the transactions
contemplated herein have taken place and will take place solely in such
jurisdiction or in the state of Nevada;
and
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(i)
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the
Company Stock has been issued in accordance with all applicable securities
and corporate legislation and
policies.
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(a)
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the
Company is a company with limited liability duly and properly organized
and validly subsisting under the laws of Peru being the only jurisdiction
where it is required to be registered for the purpose of enabling it to
carry on its business and own its property as presently carried on and
owned;
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(b)
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the
Company has good and sufficient power, authority and right to own or lease
its property, to enter into this Agreement and to perform its obligations
hereunder;
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(c)
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no
person has any agreement or option or any right or privilege (whether by
law, pre-emptive or contractual) capable of becoming an agreement,
including convertible securities, warrants or convertible obligations of
any nature, for the purchase, subscription, allotment or issuance of any
unissued shares or other securities of the
Company;
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(d)
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the
property and assets of the Company are, and between the date hereof and
the Closing Date (as hereinafter determined), will be, owned beneficially
by the Company with good and marketable title thereto, free and clear of
all Encumbrances save as previously disclosed to the
Acquirer;
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(e)
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the
Company is the rightful and legal owner of the Mining Concession Rights,
free and clear of all liens, charges, pledges, security interests and
claims of others, and no taxes, payments or fees are due in respect of any
part of the Mining Concession Rights, and the Company has free and
unimpeded right to the Mining Concession
Rights;
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(f)
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there
has not been any default in any obligation to be performed relating to the
Mining Concession Rights;
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(g)
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neither
the Vendors nor the Company are aware of a claim of any infringement or
breach of any industrial or intellectual property rights of any other
person by the Company, nor have the Vendors or the Company received any
notice that the conduct of the Company’s Business infringes or breaches
any industrial or intellectual property rights of any other person, and
neither the Vendors nor the Company, after due inquiry, have any knowledge
of any infringement or violation of any of their rights or the rights of
the Company in the Intellectual
Property;
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(h)
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the
conduct of the Company’s Business does not infringe upon the patents,
trade marks, licenses, trade names, business names, copyright or other
industrial or intellectual property rights, domestic or foreign, of any
other person;
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(i)
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the
Company’s Financial Statements for the fiscal year ended December 31, 2008
which audit shall be ended no later than Closing Date, and unaudited
Financial Statements for the three month period ended March 31, 2009 have
been prepared in accordance with Peruvian GAAP, are correct and complete
and present fairly the assets, liabilities (whether accrued, absolute,
contingent or otherwise) and financial condition of the Company as at the
respective dates of and for the respective periods covered by the
Company’s Financial Statements;
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(j)
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for
any period up to the Time of Closing the Company will not have any debts
or liabilities whatsoever (whether accrued, absolute or contingent or
otherwise), including any liabilities for federal, state, provincial,
sales, excise, income, corporate or any other taxes of the Company except
for;
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(i)
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the
debts and liabilities disclosed on, provided for or included in the
balance sheet forming a part of the most recent of the Company’s Financial
Statements;
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(iii)
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liabilities
incurred by the Company in the ordinary course of the Company’s Business
subsequent to the date of the balance sheet referred to in the Company’s
Financial Statements;
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(k)
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the
books and records of the Company fairly and correctly set out and
disclose, in all material respects, in accordance with Peruvian GAAP, the
financial condition of the Company as of the date of this Agreement and
all material financial transactions of the Company have been accurately
recorded in such books and records;
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(l)
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the
Corporate records and minute books of the Company contain complete and
accurate minutes, (duly signed by the chairman and/or secretary of the
appropriate meeting) of all meetings of shareholders of the Company since
its date of incorporation;
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(m)
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the
share certificate records, the securities register, and the list of
officers for the Company are contained in the relevant
corporate book and/or in the documents of incorporation and are complete
and accurate in all respects;
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Name
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Position
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Antonio
Rotundo
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Subordinated
General Manager
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Mario
Rotundo
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General
Manager
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(o)
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neither
this Agreement nor any document, schedule, list, certificate, declaration
under oath or written statement now or hereafter furnished by the Vendors
or the Company to the Acquirer in connection with the transactions
contemplated by this Agreement contains or will contain any untrue
statement or representation of a material fact on the part of the Vendors
or the Company, or omits or will omit on behalf of the Vendors or the
Company to state a material fact necessary to make any such statement or
representation therein or herein contained not
misleading.
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(a)
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be
true and correct on and as of the Closing Date with the same force and
effect as though made or given on the Closing
Date;
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(b)
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remain
in full force and effect notwithstanding any investigations conducted by
or on behalf of the Acquirer; and
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(c)
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all
representations and warranties made or given prior to and at the Closing
Date shall survive, as made on such dates, the completion of the
transactions contemplated by this Agreement until the second anniversary
of the Closing Date and shall continue in full force and effect for the
benefit of the Acquirer during that period, except
that:
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(i)
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the
representations and warranties set out in section 3.2(a) to and including
3.2(i) above shall survive and continue in full force and effect without
limitation of time; and
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(ii)
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a
claim for any breach of any of the representations and warranties
contained in this Agreement or in any agreement, instrument, certificate
or other document executed or delivered pursuant hereto involving fraud or
fraudulent misrepresentation may be made at any time following the Closing
Date, subject only to applicable limitation periods imposed by
law.
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(d)
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to
the extent they have not been fully performed at or prior to the Time of
Closing, each and every covenant of the Vendors contained in this
Agreement and any agreement, instrument, certificate or other document
executed or delivered pursuant to this Agreement shall survive the
completion of the transactions contemplated by this Agreement and,
notwithstanding such completion, shall continue in full force and effect
for the benefit of the Acquirer.
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(a)
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the
Acquirer is a company with limited liability duly and properly
incorporated, organized and validly subsisting under the laws of the State
of Nevada being the only jurisdiction where it is required to be
registered for the purpose of enabling it to carry on its business and own
its property as presently carried on and
owned;
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(b)
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the
Acquirer has good and sufficient power, authority and right to own or
lease its property, to enter into this Agreement and to perform its
obligations hereunder;
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(c)
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this
Agreement has been duly authorized, executed and delivered by the Acquirer
and is a legal, valid and binding obligation of the Acquirer, enforceable
against the Acquirer, as the case may be, by the Vendors and/or the
Company in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency and other laws affecting the rights of creditors
generally and except that equitable remedies may be granted only in the
discretion of a court of competent
jurisdiction;
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(d)
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the
authorized capital of the Acquirer currently consists of 2,700,000,000
shares of common stock with a par value of $0.001 per share of which
65,545,8755 shares of common stock of the Acquirer have been duly issued
and are outstanding as fully paid and non-assessable, and 10,000,000
shares of preferred stock with a par value of $0.001 per share of which
nil shares of preferred stock of the Acquirer have been
issued. There are not any bonds, debentures, notes or other
indebtedness of Acquirer having the right to vote (or convertible into, or
exchangeable for, securities having the right to vote) on any matters on
which holders of the Acquirer’s common stock may
vote;
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(e)
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all
of the issued and outstanding shares of common stock of the Acquirer are
listed and posted for trading on the
OTCBB;
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(f)
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the
Acquirer will allot and issue the Acquirer Stock on the Closing Date in
accordance with sections “2.2” and “2.3” hereinabove as duly authorized,
fully paid and non-assessable in the capital of the Acquirer, free and
clear of all actual or threatened liens, charges, security interests,
options, encumbrances, voting agreements, voting trusts, demands,
limitations and restrictions of any nature whatsoever, other than hold
periods or other restrictions imposed under applicable securities
legislation or by securities regulatory
authorities;
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(g)
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other
than the 2,200,000 stock options granted to the Acquirer’s officers and
directors, no person has any agreement or option or any right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement, including convertible securities, warrants or convertible
obligations of any nature, for the purchase, subscription, allotment or
issuance of any unissued shares or other securities of the
Acquirer;
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Name
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Position
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Antonio
Rotundo
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President,
CEO, CFO and Director
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Corey
Sandberg
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Secretary,
Treasurer & Director
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Paul
Antoniazzi
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Director
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Johnny
Lian
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Director
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(i)
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the
Acquirer has filed all tax returns that it was required to file under
applicable laws and regulations. All such tax returns, if any
were filed, were correct and complete in all respects. All
taxes due and owing by Acquirer or any of its subsidiaries have been fully
and timely paid. Neither Acquirer nor any of its subsidiaries
currently is the beneficiary of any extension of time within which to file
any tax return. No claim has ever been made by an authority in
a jurisdiction where Acquirer does not file tax returns that Acquirer is
or may be subject to taxation by that jurisdiction. There are
no liens for taxes (other than taxes not yet due and payable) upon any of
the assets of Acquirer or any of its
subsidiaries;
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(j)
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no
foreign, federal, state, or local tax audits or administrative or judicial
tax proceedings are pending or being conducted with respect to
Acquirer. Acquirer has not received from any foreign, federal,
state, or local taxing authority (including jurisdictions where Acquirer
has not filed tax returns) any (i) notice indicating an intent to open an
audit or other review, (ii) request for information related to tax
matters, or (iii) notice of deficiency or proposed adjustment for any
amount of tax proposed, asserted, or assessed by any taxing authority
against Acquirer. Acquirer has delivered to Vendors correct and
complete copies of all income tax returns filed, if any, and all
examination reports, and statements of deficiencies assessed against or
agreed to by Acquirer or any of its subsidiaries that have been
received;
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(k)
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the
execution and delivery by Acquirer of this Agreement, does not, the
issuance of the Acquirer Stock and its delivery to the Vendors will not,
and the consummation of the Takeover and compliance with the terms hereof
and thereof will not, conflict with, or result in any violation of or
default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation or acceleration of any
obligation or to loss of a material benefit under, or to increased,
additional, accelerated or guaranteed rights or entitlements of any person
under, or result in the creation of any lien upon any of the properties or
assets of Acquirer under, any provision of (i) the Acquirer Charter or
Bylaws, (ii) any material contract to which Acquirer is a party or by
which any of its properties or assets is bound or (iii) any material
judgment or material law applicable to Acquirer or its properties or
assets, other than, in the case of clauses (ii) and (iii) above, any such
items that, individually or in the aggregate, have not had and would not
reasonably be expected to have an Acquirer Material Adverse
Effect;
|
|
(l)
|
no
Consent of, or registration, declaration or filing with, or permit from,
any governmental entity is required to be obtained or made by or with
respect to Acquirer in connection with the execution, delivery and
performance of this Agreement or the consummation of the Takeover, except
for the filing of Articles of Exchange with the Nevada Secretary of State,
if required;
|
|
(m)
|
the
Acquirer Stock is not currently registered pursuant to Section 12(b) or
12(g) of the Exchange Act, but Acquirer has filed all reports, schedules,
forms, statements and other documents required to be filed by Acquirer
with the Commission pursuant to the reporting requirements of the Exchange
Act, including material filed pursuant to Section 13(a) or 15(d) of the
Exchange Act (all of the foregoing, including filings incorporated by
reference therein, the “Acquirer Commission
Documents”);
|
|
(n)
|
except
as set forth in the Acquirer Commission Documents, Acquirer has no
liabilities or obligations of any nature (whether accrued, absolute,
contingent or otherwise) required by US GAAP to be set forth on a balance
sheet of Acquirer or in the notes thereto that are not so set
forth. As of the date hereof and up to the Time of Closing the
Acquirer will not have any debts or liabilities whatsoever (whether
accrued, absolute, contingent or otherwise), including any liabilities for
federal, state, provincial, sales, excise, income, corporate or any other
taxes of the Acquirer except for;
|
|
(i)
|
the
debts and liabilities disclosed on, provided for or included in the
Acquirer Commission Documents;
|
|
(iii)
|
liabilities
incurred by the Acquirer in the ordinary course of business and in
relation to this Agreement subsequent to the date of the most recent
balance sheet referred to in the Acquirer Commission
Documents;
|
|
(o)
|
the
books and records of the Acquirer fairly and correctly set out and
disclose, in all material respects, in accordance with US GAAP, the
financial condition of the Acquirer as of the date of this Agreement and
all material financial transactions of the Acquirer have been accurately
recorded in such books and
records;
|
|
(p)
|
except
as disclosed in the Acquirer Commission Documents, there is no action,
suit, inquiry, notice of violation, proceeding (including any partial
proceeding such as a deposition) or investigation pending or threatened in
writing against or affecting the Acquirer, any subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or
administrative agency, regulatory authority (federal, state, county, local
or foreign), stock market, stock exchange or trading facility (“Action”)
which (i) adversely affects or challenges the legality, validity or
enforceability of either this Agreement or the Acquirer Stock or (ii)
could, if there were an unfavorable decision, individually or in the
aggregate, have or reasonably be expected to result in an Acquirer
Material Adverse Effect. Neither the Acquirer nor any director
or officer thereof (in his capacity as such), is or has been the subject
of any Action involving a claim or violation of or liability under federal
or state securities laws or a claim of breach of fiduciary
duty;
|
|
(q)
|
Acquirer
does not own any real property. Acquirer has good title to, or
valid leasehold interests in, all of its properties and assets used in the
conduct of its business;
|
|
(r)
|
there
are no claims pending or, to the knowledge of Acquirer, threatened that
Acquirer is infringing or otherwise adversely affecting the rights of any
person with regard to any Intellectual Property
right;
|
|
(s)
|
there
are no collective bargaining or other labor union agreements to which
Acquirer is a party or by which it is
bound;
|
|
(t)
|
except
as specified in the Acquirer Commission Documents, Acquirer has not
granted or agreed to grant to any person any rights (including
“piggy-back” registration rights) to have any securities of Acquirer
registered with the Commission or any other governmental authority that
have not been satisfied;
|
|
(u)
|
the
Acquirer has no information or knowledge of any fact not communicated to
the Vendors and the Company and relating to the Acquirer or to the
Acquirer’s business or to its issued and outstanding securities which, if
known to the Vendors and/or the Company, might reasonably be expected to
deter the Vendors and/or the Company from entering into this Agreement or
from completing the transactions contemplated by this
Agreement.
|
|
(v)
|
neither
this Agreement nor any document, schedule, list, certificate, declaration
under oath or written statement now or hereafter furnished by the Acquirer
to the Vendors or the Company in connection with the transactions
contemplated by this Agreement contains or will contain any untrue
statement or representation of a material fact on the part of the
Acquirer, or omits or will omit on behalf of the Acquirer to state a
material fact necessary to make any such statement or representation
therein or herein contained not
misleading.
|
|
(a)
|
be
true and correct on and as of the Closing Date with the same force and
effect as though made or given on the Closing
Date;
|
|
(b)
|
remain
in full force and effect notwithstanding any investigations conducted by
or on behalf of the Company and/or Vendors,
and
|
|
(c)
|
survive
the completion of the transactions contemplated by this Agreement until
the second anniversary of the Closing Date and shall continue in full
force and effect for the benefit of the Vendors and the Company during
that period, except that a claim for any breach of any of the
representations and warranties contained in this Agreement or in any
agreement, instrument, certificate or other document executed or delivered
pursuant hereto involving fraud or fraudulent misrepresentation may be
made at any time following the Closing Date, subject only to applicable
limitation periods imposed by law.
|
|
(d)
|
To
the extent they have not been fully performed at or prior to the Time of
Closing, each and every covenant of the Acquirer contained in this
Agreement and any agreement, instrument, certificate or other document
executed or delivered pursuant to this Agreement shall survive the
completion of the transactions contemplated by this Agreement and,
notwithstanding such completion, shall continue in full force and effect
for the benefit of the Vendors and the
Company.
|
|
(a)
|
the
specific ratification of the terms and conditions of this Agreement by the
Board of Directors of the Acquirer within five business days of the due
and complete execution of this Agreement by each of the Parties hereto
(the “Acquirer’s
Ratification”);
|
|
(b)
|
the
completion by the Acquirer of an initial due diligence and operations
review of the Company’s Business and operations within thirty (30)
calendar days after the Acquirer’s Ratification (the “Acquirer’s Initial Due
Diligence”);
|
|
(a)
|
the
representations and warranties of the Acquirer contained in this Agreement
shall be true and correct in all material respects at the Time of Closing,
with the same force and effect as if such representations and warranties
were made at and as of such time;
|
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by the Acquirer at or before the Time of Closing shall
have been complied with or performed in all material
respects;
|
|
(c)
|
there
shall have been obtained, from all appropriate federal, provincial,
municipal or other governmental or administrative bodies, such licenses,
permits, consents, approvals, certificates, registrations and
authorizations as are required by law, if any, to be obtained by the
Acquirer to permit the issuance and delivery of the Acquirer Stock to the
Vendors contemplated hereby;
|
|
(d)
|
no
legal or regulatory action or proceeding shall be pending or threatened by
any person to enjoin, restrict or prohibit the acquisition of the Company
Stock contemplated hereby;
|
|
(e)
|
on
or prior to the Closing, the Acquirer shall take all action necessary to
cause Antonio Rotundo to execute an agreement with the Acquirer regarding
a forfeiture of a certain amount of shares upon the occurrence of
specified events.
|
|
(a)
|
the
representations and warranties of the Vendors and the Company contained in
this Agreement shall be true and correct at the Time of Closing, with the
same force and effect as if such representations and warranties were made
at and as of such time;
|
|
(b)
|
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by the Vendors and the Company at or before the Time of
Closing shall have been complied with or performed in all material
respects;
|
|
(c)
|
there
shall have been obtained, from all appropriate federal, provincial,
municipal or other governmental or administrative bodies, such licenses,
permits, consents, approvals, certificates, registrations and
authorizations as are required to be obtained, if any, by the Vendors and
the Company to permit the change of ownership of the Company Stock
contemplated hereby;
|
|
(d)
|
there
shall have been no material adverse changes in the condition (financial or
otherwise), assets, liabilities, operations, earnings, the Company’s
Business or prospects of the Company since the date of the Company’s
Financial Statements;
|
|
(e)
|
no
legal or regulatory action or proceeding shall be pending or threatened by
any person to enjoin, restrict or prohibit the acquisition of the Company
Stock contemplated hereby; and
|
|
(f)
|
no
material damage by fire or other hazard to the whole or any material part
of the property or assets of the Company shall have occurred from the date
hereof to the Time of Closing.
|
|
(a)
|
all
documentation as may be necessary and as may be required by the solicitors
for the Acquirer, acting reasonably, to ensure that all of the Company
Stock has been transferred, assigned and are registerable in the name of
and for the benefit of the Acquirer under all applicable corporate and
securities laws;
|
|
(b)
|
certificates
representing the Company Stock registered in the name of the Vendors, duly
endorsed for transfer to the Acquirer and/or irrevocable stock powers
transferring the Company Stock to the
Acquirer;
|
|
(d)
|
a
certified copy of the resolutions of the shareholders, if necessary, of
the Company authorizing the transfer by the Vendors to the Acquirer of the
Company Stock;
|
|
(e)
|
a
copy of all corporate records and books of account of the Company and
including, without limiting the generality of the foregoing, a copy of all
minute books, share register books, and share certificate books of the
Company;
|
|
(f)
|
a
copy of the audited Company’s Financial Statements for the fiscal year
ended December 31, 2008, and unaudited Financial Statements for the three
month period ended March 31, 2009;
|
|
(a)
|
a
copy of the resolutions of the directors of the Acquirer providing for the
approval and ratification of all of the transactions contemplated
hereby;
|
|
(b)
|
certificates
representing the Acquirer Stock issued to the Vendors in accordance with
sections “2.2” and “2.3” hereinabove;
and
|
|
(c)
|
all
such other documents and instruments as the Company’s and the Vendors’
respective solicitors may reasonably
require.
|
|
(b)
|
the
relevant Party hereto has not assumed the defense of the action within a
reasonable period of time after receiving notice of the
action;
|
|
(c)
|
the
named parties to any such action include that any Party hereto and the
Indemnified Party shall have been advised by counsel that there may be a
conflict of interest between any Party hereto and the Indemnified Party;
or
|
|
(d)
|
there
are one or more legal defenses available to the Indemnified Party which
are different from or in addition to those available to any Party
hereto.
|
|
(a)
|
cure
such default, or commence proceedings to cure such default and prosecute
the same to completion without undue delay;
or
|
|
(b)
|
give
the Non-Defaulting Party notice that it denies that such default has
occurred and that it is submitting the question to arbitration as herein
provided.
|
|
(a)
|
the
default is not so cured or the Defaulting Party does not commence or
diligently proceed to cure the default;
or
|
|
(c)
|
the
Defaulting Party is found in arbitration proceedings to be in default, and
fails to cure it within five calendar days after the rendering of the
arbitration award,
|
|
(a)
|
the
Acquirer’s Ratification is not received within five business days of the
due and complete execution of this Agreement by each of the Parties
hereto;
|
|
(b)
|
the
Acquirer fails to complete a successful and Acquirer’s Initial Due
Diligence review of the Company’s business and operations within thirty
calendar days of the prior satisfaction by the Acquirer of the Acquirer’s
Ratification;
|
|
(c)
|
the
conditions specified in section “5.1” hereinabove have not been satisfied
at or prior to the Time of Closing;
|
|
(d)
|
either
of the Parties hereto has not either satisfied or waived each of their
respective conditions precedent at or prior to the Time of Closing in
accordance with the provisions of Article “5” hereinabove unless
extended;
|
|
(e)
|
either
of the Parties hereto has failed to deliver or caused to be delivered any
of their respective documents required to be delivered by Articles “5” and
“6” hereinabove at or prior to the Time of Closing in accordance with the
provisions of Articles “5” and “6” unless extended;
or
|
|
(f)
|
the
Closing has not occurred on or before June 30, 2009, or such later date,
all in accordance with section “6.2” hereinabove;
or
|
|
(b)
|
be
relied upon as a consent to or waiver of any other breach or default of
the same or any other obligation;
|
|
(d)
|
eliminate
or modify the need for a specific consent or waiver pursuant to this
section in any other or subsequent
instance.
|
AMR PROJECT PERU, S.A.C.
|
)
|
|
the
Company herein,
|
)
|
|
)
|
||
)
|
||
Per:
|
/s/ Antonio Rotundo
|
)
|
Authorized
Signatory
|
)
|
|
)
|
||
Antonio Rotundo, Sub. General
Manager
|
)
|
|
(print
name and title)
|
AFFINITY GOLD
CORP.,
|
)
|
|
the
Acquirer herein,
|
)
|
|
)
|
||
)
|
||
Per:
|
/s/ Corey Sandberg
|
)
|
Authorized
Signatory
|
)
|
|
)
|
||
Corey Sandberg, Secretary and
Director
|
)
|
|
(print
name and title)
|
SIGNED
and DELIVERED by
|
)
|
|
ANTONIO
ROTUNDO, a Vendor
|
)
|
|
herein,
in the presence of:
|
)
|
|
)
|
||
)
|
||
Witness
Signature
|
)
|
/s/ Antonio Rotundo
|
)
|
||
3 Goodman Cres.
|
)
|
|
Witness
Address
|
)
|
|
)
|
||
)
|
||
Witness
Name and Occupation
|
)
|
SIGNED
and DELIVERED by
|
)
|
|
MARIO
ROTUNDO, a Vendor
|
)
|
|
herein,
in the presence of:
|
)
|
|
)
|
||
)
|
||
Witness
Signature
|
)
|
/s/ Mario Rotundo
|
)
|
||
3 Goodman Cres.
|
)
|
|
Witness
Address
|
)
|
|
)
|
||
)
|
||
Witness
Name and Occupation
|
)
|
Issued Capital:
|
S/.155,250.00
represented by 155,250 shares of a face value of S/.1.00
each.
|
||
Paid up Capital:
|
S/.155,250.00
represented by 155,250 shares of a face value of S/.1.00
each.
|
||
Vendors:
|
|||
112,432
|
|||
Av.
Arenales 335
|
|||
Cercado,
Lima, Peru
|
|||
42,818
|
|||
Av.
Arenales 335
|
|||
Cercado,
Lima, Peru
|
112,431
|
|||
Av.
Arenales 335
|
|||
Cercado,
Lima, Peru
|
|||
42,818
|
|||
Av.
Arenales 335
|
|||
Cercado,
Lima, Peru
|
1.
|
Private
Contract for Mining Operation between Nestor Enrique Borda and AMR Project
Peru, S.A.C., dated January 11,
2006
|
Bank:
|
BBVA
Banco Continental
|
|
Address:
|
Larco
1200, Miraflores, Lima
|
|
Telephone:
|
211-5148
|
This ‘8-K/A’ Filing | Date | Other Filings | ||
---|---|---|---|---|
Filed on: | 8/21/09 | |||
6/30/09 | 10-Q | |||
6/15/09 | ||||
For Period End: | 5/8/09 | 8-K, 8-K/A | ||
3/31/09 | 10-K, NT 10-K | |||
3/2/09 | 8-K, 8-K/A | |||
12/31/08 | 10-Q, 8-K | |||
1/1/08 | ||||
12/11/06 | ||||
1/11/06 | ||||
List all Filings |