Exhibit 10.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of February 11, 2013 and with effect as
at January 31, 2013 (the "Agreement"), by and among ▇▇▇▇▇ Diamonds Ltd., (the
"Company"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Seller") and Americas Diamond Corp. (the
"Purchaser") Each of the Company, the Seller, and the Purchaser, are referred to
herein as a "Party" and collectively, as the "Parties".
BACKGROUND
Seller intends to sell and Purchaser intends to purchase one share of
common stock (the "Seller Shares") of Company. The Seller Shares represent all
of the issued and outstanding capital stock of the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants herein contained, the Seller and the Purchaser hereby agree as
follows:
1. Purchase and Sale.
The Seller shall sell, transfer, convey and deliver unto the Purchaser the
Seller Shares, and the Purchaser shall acquire and purchase from the Seller the
Seller Shares.
2. Purchase Price. The purchase price (the "Purchase Price") for the Seller
Shares, is $1.00. As additional consideration, the Purchaser also agrees to
assume the following obligations:
(a) Issue 971,695 shares of the Purchaser's common stock to certain
creditors of ▇▇▇▇▇;
(b) Issue 250,000 shares of the Purchaser's common stock (the "KANSAI
SHARES") to Kansai Mining Corporation ("KANSAI") immediately upon
Closing in relation to the option and purchase of Compania Minera
Adamatine pursuant to the Letter Agreement dated January 16, 2013
between Company and Kansai attached hereto as Exhibit "A" (the "KANSAI
AGREEMENT").; and
(c) assume all the Company's obligations pursuant to the Kansai
Agreement..
3. The Closing.
(a) General. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place by exchange of documents among
the Parties by fax or courier, as appropriate, following the satisfaction
or waiver of all conditions to the obligations of the Parties to consummate
the transactions contemplated hereby (other than conditions with respect to
actions the respective Parties will take at the Closing itself) not later
than February 28, 2013 or such other date as the Purchaser and the Seller
may mutually determine (the "Closing Date").
(b) Deliveries at the Closing. At the Closing: (i) the Seller shall
deliver to the Purchaser the various certificates, instruments, and
documents referred to in Section 9(a) below; (ii) the Purchaser shall
deliver to Kansai the various certificates, instruments, and documents
referred to in Exhibit A; and (iii) the Seller shall deliver to the
Purchaser a certificate evidencing the Seller Shares (the "Certificate"),
endorsed in blank or accompanied by duly executed assignment documents and
including a Medallion Guarantee or other form of signature guarantee
acceptable to the Purchaser.
(c) Obligations after Closing. Upon Closing, the Purchaser will
undertake the Company's financial obligations as they relate to payments
and expenditures required to be made to Kansai pursuant to the Kansai
Agreement.
If the Purchaser fails in making any of these payments, the common shares
of Compania Minera Adamantine and equipment acquired pursuant to the Kansai
Agreement shall automatically revert back to Kansai.
(d) Effective date of Purchase. The effective date of the Purchase
will be January 31, 2013.
4. Representations and Warranties of the Seller.
The Seller represents and warrants to the Purchaser that the statements
contained in this Section 4, with respect to such Seller, are correct and
complete as of the date of this Agreement and will be correct and complete as of
the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this Section 4).
(a) The Seller has the power and authority to execute, deliver and
perform its obligations under this Agreement and to sell, assign, transfer
and deliver to the Purchaser the Seller Shares as contemplated hereby. No
permit, consent, approval or authorization of, or declaration, filing or
registration with any governmental or regulatory authority or consent of
any third party is required in connection with the execution and delivery
by Seller of this Agreement and the consummation of the transactions
contemplated hereby.
(b) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby or compliance with the
terms and conditions hereof by the Seller will violate or result in a
breach of any term or provision of any agreement to which any Seller is
bound or is a party, or be in conflict with or constitute a default under,
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or cause the acceleration of the maturity of any obligation of the Seller
under any existing agreement or violate any order, writ, injunction,
decree, statute, rule or regulation applicable to the Seller or any
properties or assets of the Seller.
(c) This Agreement has been duly and validly executed by the Seller,
and constitutes the valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency or other laws affecting creditors'
rights generally or by limitations, on the availability of equitable
remedies.
(d) The Seller shall indemnify, defend and hold harmless Purchaser
from and against all liabilities incurred by Purchaser, directly or
indirectly, including without limitation, all reasonable attorney's fees
and court costs, arising out of or in connection with the purchase of the
Seller's respective Seller Shares set forth in this Agreement, except where
fraud, intent to defraud or default of payment evolves on the part of
Purchaser.
(e) The Seller owns the Seller Shares free and clear of all liens,
charges, security interests, encumbrances, claims of others, options,
warrants, purchase rights, contracts, commitments, equities or other claims
or demands of any kind (collectively, "Liens"), and upon delivery of the
Seller Shares to the Purchaser, the Purchaser will acquire good, valid and
marketable title thereto free and clear of all Liens. The Seller is not a
party to any option, warrant, purchase right, or other contract or
commitment that could require the Seller to sell, transfer, or otherwise
dispose of any capital stock of the Company (other than pursuant to this
Agreement). The Seller is not a party to any voting trust, proxy, or other
agreement or understanding with respect to the voting of any capital stock
of the Company.
5. Representations and Warranties Concerning the Purchaser. The Purchaser
represents and warrants to the Seller and the Company that the statements
contained in this Section 5 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though
made then and as though the Closing Date were substituted for the date of this
Agreement throughout this Section 5).
(a) SEC Reports. The Purchaser has filed all reports, registration
statements, definitive proxy statements and other documents and all
amendments thereto and supplements thereof required to be filed by it with
the U.S. Securities and Exchange Commission (the "SEC Reports"), all of
which have complied in all material respects with the applicable
requirements of the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder. As of the respective dates of filing in
final or definitive form (or, if amended or superseded by a subsequent
filing, then on the date of such subsequent filing), none of the
Purchaser's SEC Reports contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
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necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading.
(b) Organization of Purchaser. The Purchaser is a corporation duly
organized, validly existing, and in good standing under the laws of the
State of Nevada. The Purchaser is duly authorized to conduct business and
is in good standing under the laws in every jurisdiction in which the
ownership or use of property or the nature of the business conducted by it
makes such qualification necessary except where the failure to be so
qualified or in good standing would not have a Material Adverse Effect.
"Material Adverse Effect" means any material adverse effect on the
business, operations, assets, financial condition or prospects of the
Purchaser or its Subsidiaries, if any, taken as a whole or on the
transactions contemplated hereby or by the agreements or instruments to be
entered into in connection herewith. The Purchaser has full corporate power
and authority and all licenses, permits, and authorizations necessary to
carry on its business. Except for the Subsidiary, the Purchaser has no
subsidiaries and does not control any entity, directly or indirectly, or
have any direct or indirect equity participation in any other entity.
(c) Capitalization; No Restrictive Agreements.
(i) The Purchaser's authorized capital stock, as of the date of this
Agreement, consists of 375,000,000 shares of Common Stock, $0.001 par value per
share, of which 30,000,000 shares are issued and outstanding.
(ii) The Purchaser has not reserved any shares of its Common Stock for
issuance upon the exercise of options, warrants or any other securities that are
exercisable or exchangeable for, or convertible into, Common Stock. All of the
issued and outstanding shares of Common Stock are validly issued, fully paid and
non-assessable and have been issued in compliance with applicable laws,
including, without limitation, applicable federal and state securities laws.
There are no outstanding options, warrants or other rights of any kind to
acquire any additional shares of capital stock of the Purchaser or securities
exercisable or exchangeable for, or convertible into, capital stock of the
Purchaser, nor is the Purchaser committed to issue any such option, warrant,
right or security. There are no agreements relating to the voting, purchase or
sale of capital stock (i) between or among the Purchaser and any of its
stockholders, (ii) between or among the Seller and any third party, or (iii)
between or among any of the Purchaser's stockholders. The Purchaser is not a
party to any agreement granting any stockholder of the Purchaser the right to
cause the Purchaser to register shares of the capital stock of the Purchaser
held by such stockholder under the Securities Act.
(d) Financial Statements. The Seller has provided the Purchaser with
audited balance sheets and statements of operations, changes in
stockholders' deficit and cash flows for the years ended January 31, 2012
and 2011 and unaudited statements for October 31, 2012 (collectively, the
"Financial Statements"). The Financial Statements have been prepared in
accordance with United States generally accepted accounting principles
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applied on a consistent basis, fairly present the financial condition,
results of operations and cash flows of the Purchaser as of the respective
dates thereof and for the periods referred to therein and are consistent
with the books and records of the Purchaser. The Purchaser does not have
any liability (whether known or unknown, whether asserted or unasserted,
whether absolute or contingent, whether accrued or unaccrued, whether
liquidated or unliquidated, and whether due or to become due), including
any liability for taxes, except for liabilities expressly specified in the
Financial Statements (none of which results from, arises out of, relates
to, is in the nature of, or was caused by any breach of contract, breach of
warranty, tort, infringement, or violation of law).
(e) Absence of Certain Changes. Since October 31, 2012, there has not
been any event or condition of any character which has materially adversely
affected, or may be expected to materially adversely affect, the
Purchaser's business or prospects, including, but not limited to any
material adverse change in the condition, assets, Liabilities (existing or
contingent) or business of the Purchaser from that shown in the Financial
Statements.
(f) Legal Proceedings. As of the date of this Agreement, there is no
legal, administrative, investigatory, regulatory or similar action, suit,
claim or proceeding which is pending or threatened against the Purchaser
which, if determined adversely to the Purchaser, could have, individually
or in the aggregate, a Material Adverse Effect.
(g) Legal Compliance. The Purchaser has complied in all material
respects with all applicable laws (including rules, regulations, codes,
plans, injunctions, judgments, orders, decrees, rulings, and charges
thereunder) of all applicable governmental authorities, and no action,
suit, proceeding, hearing, investigation, charge, complaint, claim, demand,
or notice has been filed or commenced against the Purchaser alleging any
failure so to comply. Neither the Purchaser, nor any officer, director,
employee, consultant or agent of the Purchaser has made, directly or
indirectly, any payment or promise to pay, or gift or promise to give or
authorized such a promise or gift, of any money or anything of value,
directly or indirectly, to any governmental official, customer or supplier
for the purpose of influencing any official act or decision of such
official, customer or supplier or inducing him, her or it to use his, her
or its influence to affect any act or decision of an applicable
governmental authority or customer, under circumstances which could subject
the Purchaser or any officers, directors, employees or consultants of the
Purchaser to administrative or criminal penalties or sanctions.
(h) Disclosure. No representation or warranty by the Seller contained
in this Agreement, and no statement contained in any document, certificate
or other instrument delivered or to be delivered by or on behalf of the
Seller pursuant to this Agreement, contains or will contain any untrue
statement of a material fact or omit or will omit to state any material
fact necessary, in light of the circumstances under which it was or will be
made, in order to make the statements herein or therein not misleading.
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6. Representations and Warranties of the Company. The Company and the Seller
jointly and severally represent and warrant to the Purchaser that the statements
contained in this Section 6 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though
made then and as though the Closing Date were substituted for the date of this
Agreement throughout this Section 6).
(a) Organization of Company. The Company is a corporation duly
organized, validly existing, and in good standing under the laws of the
United Kingdom. The Company is duly authorized to conduct business and is
in good standing under the laws in every jurisdiction in which the
ownership or use of property or the nature of the business conducted by it
makes such qualification necessary except where the failure to be so
qualified or in good standing would not have a Material Adverse Effect.
"Material Adverse Effect" means any material adverse effect on the
business, operations, assets, financial condition or prospects of the
Company or its Subsidiaries, if any, taken as a whole or on the
transactions contemplated hereby or by the agreements or instruments to be
entered into in connection herewith. The Company has full corporate power
and authority and all licenses, permits, and authorizations necessary to
carry on its business. Except for the Subsidiary, the Company has no
subsidiaries and does not control any entity, directly or indirectly, or
have any direct or indirect equity participation in any other entity.
(b) Capitalization; No Restrictive Agreements.
(i) The Company's authorized capital stock, as of the date of this
Agreement, consists of one share of Common Stock, $1.00 par value per share, of
which one share is issued and outstanding.
(ii) The Company has not reserved any shares of its Common Stock for
issuance upon the exercise of options, warrants or any other securities that are
exercisable or exchangeable for, or convertible into, Common Stock. All of the
issued and outstanding shares of Common Stock are validly issued, fully paid and
non-assessable and have been issued in compliance with applicable laws,
including, without limitation, applicable federal and state securities laws.
There are no outstanding options, warrants or other rights of any kind to
acquire any additional shares of capital stock of the Company or securities
exercisable or exchangeable for, or convertible into, capital stock of the
Company, nor is the Company committed to issue any such option, warrant, right
or security. There are no agreements relating to the voting, purchase or sale of
capital stock (i) between or among the Company and any of its stockholders, (ii)
between or among the Seller and any third party, or (iii) between or among any
of the Company's stockholders. The Company is not a party to any agreement
granting any stockholder of the Company the right to cause the Company to
register shares of the capital stock of the Company held by such stockholder
under the Securities Act.
(c) Financial Statements. The Seller and the Company will provide the
Purchaser with audited balance sheets and statements of operations, changes
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in stockholders' deficit and cash flows for the period ended January 31,
2013 (collectively, the "Company Financial Statements"). The Company
Financial Statements have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent basis,
fairly present the financial condition, results of operations and cash
flows of the Company as of the respective dates thereof and for the periods
referred to therein and are consistent with the books and records of the
Company. The Company does not have any liability (whether known or unknown,
whether asserted or unasserted, whether absolute or contingent, whether
accrued or unaccrued, whether liquidated or unliquidated, and whether due
or to become due), including any liability for taxes, except for
liabilities expressly specified in the Financial Statements (none of which
results from, arises out of, relates to, is in the nature of, or was caused
by any breach of contract, breach of warranty, tort, infringement, or
violation of law).
(d) Absence of Certain Changes. Since January 31, 2013, there has not
been any event or condition of any character which has materially adversely
affected, or may be expected to materially adversely affect, the Company's
business or prospects, including, but not limited to any material adverse
change in the condition, assets, Liabilities (existing or contingent) or
business of the Company from that shown in the Company Financial
Statements.
(e) Legal Proceedings. As of the date of this Agreement, there is no
legal, administrative, investigatory, regulatory or similar action, suit,
claim or proceeding which is pending or threatened against the Company
which, if determined adversely to the Company, could have, individually or
in the aggregate, a Material Adverse Effect.
(f) Legal Compliance. The Company has complied in all material
respects with all applicable laws (including rules, regulations, codes,
plans, injunctions, judgments, orders, decrees, rulings, and charges
thereunder) of all applicable governmental authorities, and no action,
suit, proceeding, hearing, investigation, charge, complaint, claim, demand,
or notice has been filed or commenced against the Company alleging any
failure so to comply. Neither the Company, nor any officer, director,
employee, consultant or agent of the Company has made, directly or
indirectly, any payment or promise to pay, or gift or promise to give or
authorized such a promise or gift, of any money or anything of value,
directly or indirectly, to any governmental official, customer or supplier
for the purpose of influencing any official act or decision of such
official, customer or supplier or inducing him, her or it to use his, her
or its influence to affect any act or decision of an applicable
governmental authority or customer, under circumstances which could subject
the Company or any officers, directors, employees or consultants of the
Company to administrative or criminal penalties or sanctions.
(g) Liabilities of the Company. The Company's liabilities will be paid
off at or prior to the Closing and will in no event become the liability of
the Purchaser or remain the liabilities of the Company following the
Closing.
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(h) Disclosure. No representation or warranty by the Seller contained
in this Agreement, and no statement contained in any document, certificate
or other instrument delivered or to be delivered by or on behalf of the
Seller pursuant to this Agreement, contains or will contain any untrue
statement of a material fact or omit or will omit to state any material
fact necessary, in light of the circumstances under which it was or will be
made, in order to make the statements herein or therein not misleading.
7. Brokers and Finders.
There are no finders and no parties shall be responsible for the payment of
any finders' fees other than as specifically set forth herein. Neither the
Seller, nor any of its directors, officers or agents on their behalf, have
incurred any obligation or liability, contingent or otherwise, for brokerage or
finders' fees or agents' commissions or financial advisory services or other
similar payment in connection with this Agreement.
8. Pre-Closing Covenants.
The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing.
(a) General. Each of the Parties will use his or its best efforts to
take all action and to do all things necessary, proper, or advisable in
order to consummate and make effective the transactions contemplated by
this Agreement (including satisfaction, but not waiver, of the closing
conditions set forth in Section 11 below).
(b) Notices and Consents. Each of the Parties will give any notices
to, make any filings with, and use its best efforts to obtain any
authorizations, consents, and approvals of governmental authorities
necessary in order to consummate the transactions contemplated hereby.
9. Post-Closing Covenants. The Parties agree that if at any time after the
Closing any further action is necessary or desirable to carry out the purposes
of this Agreement, each of the Parties will take such further action (including
the execution and delivery of such further instruments and documents) as any
other Party may reasonably request, all at the sole cost and expense of the
requesting Party.
10. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Purchaser.
The obligation of the Purchaser to consummate the transactions to be
performed by the Purchaser in connection with the Closing are subject to
satisfaction of the following conditions:
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(i) the representations and warranties set forth in Sections 6 and 7 above
shall be true and correct in all material respects at and as of the Closing
Date;
(ii) The Seller or the Company shall have provided the Purchaser with a
copy of the Company Financial Statements;
(iii) the Seller shall have performed and complied with all of his
covenants hereunder in all material respects through the Closing; and
(iv) no action, suit, or proceeding shall be pending or threatened before
any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would (A) prevent
consummation of any of the transactions contemplated by this Agreement or (B)
cause any of the transactions contemplated by this Agreement to be rescinded
following consummation (and no such injunction, judgment, order, decree, ruling,
or charge shall be in effect);
The Purchaser may waive any condition specified in this Section 11(a) at
or prior to the Closing in writing executed by the Purchaser.
(b) Conditions to Obligation of the Seller.
The obligations of the Seller to consummate the transactions to be
performed by her in connection with the Closing are subject to satisfaction of
the following conditions:
(i) the representations and warranties set forth in Section 5 above shall
be true and correct in all material respects at and as of the Closing Date;
(ii) the Purchaser shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending or threatened before
any court or quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would (A) prevent
consummation of any of the transactions contemplated by this Agreement or (B)
cause any of the transactions contemplated by this Agreement to be rescinded
following consummation (and no such injunction, judgment, order, decree, ruling,
or charge shall be in effect); and
(iv) all actions to be taken by the Purchaser in connection with
consummation of the transactions contemplated hereby and all certificates,
instruments, and other documents required to effect the transactions
contemplated hereby will be satisfactory in form and substance to the Seller.
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The Seller may waive any condition specified in this Section 11(b) at or
prior to the Closing in writing executed by the Seller.
11. Miscellaneous.
(a) Facsimile Execution and Delivery. Facsimile execution and delivery
of this Agreement is legal, valid and binding execution and delivery for
all purposes.
(b) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the Parties and their
respective successors and permitted assigns.
(c) Entire Agreement. This Agreement (including the documents referred
to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or
among the Parties, written or oral, to the extent they related in any way
to the subject matter hereof.
(d) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement
or any of his or its rights, interests, or obligations hereunder without
the prior written approval of the Purchaser and the Seller; provided,
however, that the Purchaser may (i) assign any or all of its rights and
interests hereunder to one or more of its Affiliates, and (ii) designate
one or more of its affiliates to perform its obligations hereunder, but no
such assignment shall operate to release Purchaser or a successor from any
obligation hereunder unless and only to the extent that Seller agrees in
writing.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(f) Headings. The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Agreement.
(g) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or by
commercial delivery service, or mailed by registered or certified mail
(return receipt requested) or sent via facsimile (with confirmation of
receipt) to the parties.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Nevada without giving
effect to any choice or conflict of law provision or rule (whether of the
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State of Nevada or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of Nevada.
(i) Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by
the Purchaser and the Seller or their respective representatives. No waiver
by any Party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend
to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence.
(j) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision
in any other situation or in any other jurisdiction.
(k) Expenses. Each of the Parties will bear his or its own costs and
expenses (including legal fees and expenses) incurred in connection with
this Agreement and the transactions contemplated hereby.
(l) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption or burden
of proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any of the provisions of this Agreement. Any reference to any
federal, state or local statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the context requires
otherwise. The word "including" shall mean including without limitation.
The Parties intend that each representation, warranty, and covenant
contained herein shall have independent significance. If any Party has
breached any representation, warranty, or covenant contained herein in any
respect, the fact that there exists another representation, warranty, or
covenant relating to the same subject matter (regardless of the relative
levels of specificity) which the Party has not breached shall not detract
from or mitigate the fact that the Party is in breach of the first
representation, warranty, or covenant. Nothing in the disclosure Schedules
attached hereto shall be deemed adequate to disclose an exception to a
representation or warranty made herein, however, unless the disclosure
Schedules identifies the exception with particularity and describes the
relevant facts in detail. Without limiting the generality of the foregoing,
the mere listing (or inclusion of a copy) of a document or other item in
the disclosure Schedules or supplied in connection with the Purchaser' due
diligence review, shall not be deemed adequate to disclose an exception to
a representation or warranty made herein (unless the representation or
warranty has to do with the existence of the document or other item
itself).
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(m) Specific Performance. Each of the Parties acknowledges and agrees
that the other Party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the Parties
agrees that the other Party shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof in
any action instituted in any court of the United States or any state
thereof having jurisdiction over the Parties and the matter (subject to the
provisions set forth in Section 11(o) below), in addition to any other
remedy to which they may be entitled, at law or in equity.
(n) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state or federal court sitting in Delaware, in any
action or proceeding arising out of or relating to this Agreement and
agrees that all claims in respect of the action or proceeding may be heard
and determined in any such court. Each of the Parties waives any defense of
inconvenient forum to the maintenance of any action or proceeding so
brought and waives any bond, surety, or other security that might be
required of any other Party with respect thereto. Any Party may make
service on any other Party by sending or delivering a copy of the process
to the Party to be served at the address and in the manner provided for the
giving of notices in Section 11(g) above. Nothing in this Section 11(n),
however, shall affect the right of any Party to bring any action or
proceeding arising out of or relating to this Agreement in any other court
or to serve legal process in any other manner permitted by law or at
equity. Each Party agrees that a final judgment in any action or proceeding
so brought shall be conclusive and may be enforced by suit on the judgment
or in any other manner provided by law or at equity.
[signature pages follow]
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IN WITNESS WHEREOF, the Seller, the Company, and the Purchaser have caused
this Stock Purchase Agreement to be executed and delivered by their respective
officers thereunto duly authorized, all as of the date first written above.
▇▇▇▇▇ DIAMONDS LTD.
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Per: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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AMERICAS DIAMOND CORP.
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Per: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
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EXHIBIT A
[KANSAI MINING CORPORATION LOGO]
January 16, 2013
To: ▇▇▇▇▇ Diamonds Ltd, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇▇▇,
On March 16, 2012 Kansai and ▇▇▇▇▇ Diamonds Ltd., entered into an agreement for
the acquisition of Kansai's significant assets in Venezuela consisting of two
parts: 1) a 3-stage treatment plant, 50-70tph scrubber, 10tph DMS plant and
X-Ray final recovery section from ▇▇▇▇▇▇▇'▇ in South Africa, which is the only
diamond recovery plant of its type in all of Venezuela and 2) 100% interest in
Compania Minera Adamantine CA ("CMA"), a Venezuelan company which presently
holds two diamond concessions: Natal I and Natal II. This agreement shall amend
and replace the terms of the March 16, 2012 agreement and all prior
communication either verbal or in writing in connection with such acquisition.
Kansai agrees to sell and ▇▇▇▇▇ agrees to purchase both of these assets under
the following terms:
1) SALE OF PLANT AND EQUIPMENT
Total cash payments of US $1,735,000 to be paid over 24 months as follows
a) an initial cash payment of US $100,000 to be paid by March 23, 2012 ;
b) monthly payments of US$50,000 a month, plus 6% accrued interest, for
the initial eleven (11) months following the US$100,000 payment (four
payments made as of the date of this amended agreement);
c) monthly payments of US$90,000 a month, plus 6% accrued interest, for
the following eleven (11) months; and
d) a final payment in month 24 for all remaining amounts due
Payments are due on the first day of each month commencing on March 1, 2012. A 5
day grace period will be provided and default interest will be accrued at 18%
per annum. The assets contemplated by this section (a 3-stage treatment plant,
50-70tph scrubber, 10tph DMS plant and X-Ray final recovery section from
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▇▇▇▇▇▇▇'▇ in South Africa) shall be considered the property of ▇▇▇▇▇ Diamonds
Ltd., upon the execution of this agreement and any outstanding amounts to be
paid under this LOI shall be considered a debt to Kansai. Kansai retains a
security interest in the plant and equipment. Ownership of the plant and
equipment will revert back to Kansai if any payment is not received within 30
days after notice of a default.
▇▇▇▇▇ has made payments to Kansai as listed in Appendix A.
2) OPTION AND SALE OF CMA
For the option of CMA, Kansai will receive 250,000 shares of Americas Diamond
Corp. ("ADC"), valued at $1.00 per share. under the following terms:
For the acquisition of CMA, Kansai will receive the following:
(a) a minimum of $13,000,000 payable in common shares of Americas Diamond
Corp. ("ADC"), initially valued at $1.00 per share under the following
terms:
(i) 50% when production permits are issued; and
(ii) the remaining 50% when commercial production is reached.
(b) 10% net profits interest in Natal I and Natal II
(c) the funding commitments in Section 4
(d) payment of 100% of all costs relating to CMA, the mining leases and
the plant & equipment from March 16, 2012.
The ADC optioned shares for 2a will be held in escrow by ADC's Securities
Counsel until requirements (a) and (b) above is reached. When issued the shares
of ADC will be valued at the lower of: (i) an assumed share price of US$1.00, or
(ii) the 5 day VWAP (volume weighted average price) when the milestones (receipt
of production permits and commercial production) are achieved. ADC is to ensure
there is sufficient authorized share capital to cover a potential future share
issuance, due to the price being lower than US$1.00. ADC shall issue a number of
shares to Kansai which is sufficient to meet the value of US$13,000,000 based on
the share valuation method outlined above.
▇▇▇▇▇ is to pay for 100% of all costs relating to CMA, it's operations,
personnel, the mining leases and the plant & equipment from March 16, 2012. ADC
will pay these costs after its purchase of ▇▇▇▇▇. Kansai shall also retain a 10%
net profits interest on Natal I and Natal II as identified in item c. 5% may be
purchased by ADC for US$3,000,000 provided the purchase of CMA and this net
profits interest is completed within 2 years of commercial production.
Kansai may pay the ADC shares to its creditors and/or liquidate Kansai and
distribute the ADC shares to its shareholders. No Kansai creditor will receive
more than 9.9% of ADC's outstanding shares and will receive free trading shares
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provided that the SEC holding period has been met. ADC will agree to cooperate
in those efforts.
All purchase terms must be completed by March 16, 2015.
3) PLANT REVENUE
After the option and purchase Kansai will receive 20% of the net proceeds from
sale of any diamonds from the Natal properties prior to commercial production.
This will be applied towards the sale of the plant and equipment purchase to
accelerate the timeframe for payment. This payment is in addition to required
monthly payments, and will be credited towards the US$1,735,000 cash payment. As
such, they will reduce the amount and term remaining accordingly.
4) FUNDING COMMITMENTS AND CASH EXPENDITURES
▇▇▇▇▇ will fund the following amounts. At the closing of the reverse merger
transaction, ADC will take over the following obligations
Cash expenditures of the following amounts to be paid to Kansai in the first
twelve months:
a. Month one-US$45,000 less the advance of US $2,368.91 of March 16, 2012
(pound)1,500 at a spot exchange rate of 1.57927)(paid)
b. Month two-US$30,000
c. Month three-$25,000
d. Months four thru nine-US$60,000 Months ten thru twelve-US$50,000
As of the date of this agreement payment for month 6 of US $60,000 is due and
will be paid to Kansai by January 23, 2013.
▇▇▇▇▇ has made the cash expenditures as shown on Appendix A
Expenditures of an additional US$230,000 for capital costs and spare equipment
will be paid to Kansai by March 16, 2013.
Expenditures in 2014 onwards will be a minimum of US$750,000 per year for the
term of the option to further the objective of obtaining production from the
property.
5) FUNDING BY THE FONDEN FUND OR OTHER AGENCIES
CMA as a designated "Company of interest to the Bolivarian Republic of
Venezuela" has been negotiating with officials of the FONDEN FUND in
Venezuela for funding. This fund is in gift of the President of Venezuela
and comprises grants and loans (the latter repayable over variable terms
and rates (typical 6-10%)). The amounts under discussion were a loan for
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US$11 million for plant and equipment and a grant of US$5 million not
repayable but useable in Venezuela. If this is successful, CMA stands to
benefit materially from these efforts and may also benefit from additional
opportunities to partner Governmental Agencies in other diamond projects in
the country. Should the grant occur then Kansai will receive 25% of the
grant proceeds, and if the other diamond projects occur, then Kansai would
receive an additional 10% ORRI and additional consulting fees of US$5,000
per month, for the duration of any subsequent projects outside the Natal I
and II project. Should the equipment loan occur then Kansai will receive
10% of the loan proceeds to be paid when the equipment is purchased.
6) OTHER AGREEMENTS
Both parties to agree to prepare and sign such additional documents or
agreements, which reflect the intent of this agreement. This will include, but
not be limited to, the following:
A) A commitment from ADC to re-domicile to either the UK or Canada ADC
will execute, within 28 days of closing of a transaction with ▇▇▇▇▇, a
funding facility for a minimum of US$2,500,000 Dollars, for the
express purpose of developing CMA and its projects and assets.
B) ▇▇▇▇▇ to be purchased by ADC within 10 days of this agreement and all
payments due to Kansai and funding for CMA to be brought current
within 10 days of this agreement
C) This agreement is subject to the laws of the State of Nevada.
If acceptable please sign and return a copy of this letter.
Sincerely,
/s/ ▇▇▇▇▇ ▇. Walsham
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▇▇▇▇▇ ▇. Walsham
President
Accepted and Approved
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, on Behalf of ▇▇▇▇▇ Diamonds Ltd
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Appendix A
Payments made by ▇▇▇▇▇
Kansai
Kansai Plant and
Plant and Equipment
Equipment Interest other total
Principle (note 1) CMA (Note 2) total CMA (Note 3) CMA
------------ ------------ ------------ ------------ ------------ ------------
23-Apr-12 $ 150,000.00 $ 5,753.20 $ 42,631.09 $ 198,384.29 $ 2,368.91 $ 45,000.00
20-Aug-12 $ 0.00 $ 0.00 $ 30,000.00 $ 30,000.00 $ 0.00 $ 30,000.00
12-Sep-12 $ 50,000.00 $ 7,569.86 $ 0.00 $ 57,569.86 $ 0.00 $ 0.00
10-Oct-12 $ 50,000.00 $ 7,569.86 $ 25,000.00 $ 82,569.86 $ 0.00 $ 25,000.00
3-Dec-12 $ 50,000.00 $ 7,323.29 $ 60,000.00 $ 117,323.29 $ 0.00 $ 60,000.00
9-Jan-13 $ 50,000.00 $ 7,076.71 $ 60,000.00 $ 117,076.71 $ 0.00 $ 60,000.00
Note 1-Additional interest is owed to Kansai
Note 2-payments made to Kansai as operator of CMA
Note 3-payment made as directed by Kansai as operator of CMA
total $ 350,000.00 $ 35,292.92 $ 217,631.09 $ 602,924.01 $ 2,368.91 $ 220,000.00
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Capital restructure of ADC
ADC currently has 375,000,000 authorized common shares
30,000,000 shares are currently issued and outstanding.
15,000,000 shares are the free float
15,000,000 restricted shares are held by insiders (to be cancelled as per below)
The insiders of the ADC will cancel 13,000,000 shares.
Kansai will be issued an additional 250,000 non-escrowed shares of ADC's common
stock upon the closing of the acquisition of ▇▇▇▇▇ Diamonds Ltd by ADC.
ADC would then re-domicile to either the UK or Canada
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