AGREEMENT AND PLAN OF MERGER
OF
ARIZONA MICA PROPERTIES, INC., an Arizona corporation
INTO
▇▇▇▇▇▇▇ MINING, INC., a Delaware corporation
AGREEMENT AND PLAN OF MERGER (the "Agreement") dated as of March 9, 1999,
by and among Arizona Mica Properties, Inc., an Arizona corporation ("AMPI") and
its Shareholders, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ 0. ▇▇▇ and ▇▇▇▇▇ ▇. Bleak (herein AMPI
Shareholders); and ▇▇▇▇▇▇▇ Mining, Inc., a Delaware corporation ("SMI"), a
wholly owned subsidiary of Azco Mining, Inc., a Delaware corporation ("AZCO").
WHEREAS, the Board of Directors of AMPI and SMI deeming the merger of AMPI
with and into SMI (herein the "Surviving Corporation"), in accordance with the
applicable laws of the State of Delaware and the State of Arizona (the
"Merger") to be desirable and in the best interests of their respective
stockholders, and desiring to adopt the Plan of Reorganization resulting in a
tax-free reorganization ("reorganization") within the meaning of S.368(a) of the
Interal Revenue Code of 1986, as amended;
WHEREAS, all of the issued and outstanding 3,000 shares of AMPI common
stock are owned by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ 0. ▇▇▇ and ▇▇▇▇▇ ▇. Bleak, each
Shareholder owning 1,000 shares; and
WHEREAS, AMOI will merge into SMI, as the surviving corporation, which is a
wholly owned subsidiary of AZCO, in exchange for the issuance of common stock of
AZCO to the AMPI Shareholders.
NOW, THEREFORE, in consideration of the mutual promises herein made and
in consideration of the representations, warranties and covenants herein
contained, the parties agree as follows:
ARTICLE I
THE MERGER
1.1 Merger. SMI and AMPI shall execute and deliver the Agreement and Plan
of Meraer effective as of March 9, 1999. The merger shall be effective, subject
to the terms and conditions of this Agreement and the Plan of Merger as promptly
as possible afler Closing, to be held at the offices of ▇▇▇▇▇ ▇▇▇▇, Esq., ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇-▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place as
determined by SMI, or on such date as the parties may select (the "Closing
Date"). Subject to Article III, Section 3.3, the merger shall be made effective,
by SMI filing the Certificate
Page 1 of 18
of Merger in accordance with the General Corporation Laws of the State of
Delaware and by SMI filing the Articles of Merger in accordance with the Arizona
Business Corporation Act of the State of Arizona. The latter of the dates on
which the Certificate and Articles of Merger are filed in Delaware and Arizona
shall become the effective date and is herein referred to as the "Effective
Date."
ARTICLE II
DESCRIPTION OF THE TRANSACTION
2.1 Description of the Transaction. Pursuant to the terms and conditions of
this Agreement, AMPI will merge with and into SMI on the Effective Date. Upon
the Effective Date of the merger, the following will occur:
(a) Corporate Existence. The separate corporate existence of AMPI
shall cease and SMI shall become the owner without other transfer of all of
the rights and property of the merged corporations, and SMI shall be
subject to the debts and liabilities of AMPI in the same manner as if SMI
had itself incurred them.
(b) Certificate of Incorporation. The Certificate of Incorporation of
SMI in effect and as of the effective date will remain the Certificate of
Incorporation of the Surviving Corporation without any modification or
amendment in the Merger.
(c) Bylaws. The Bylaws of SMI in effect at and as of the Effective
Date will remain the Bylaws of the Surviving Corporation without any
modifications or amendment in the merger.
(d) Officers and Directors of SMI. The Officers and Directors of SMI
in office on the Effective Date will remain as Directors and Officers of
SMI.
(e) Dirertor on AZCO Board. The management of AZC0 shall make
reasonable best efforts to elect and maintain as a director of AZCO one
individual designated by the AMPI Shareholders. This Director initially
will be ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
2.2 Share Exchange. Upon the Effective Date of the Merger:
(a) Transfer of AMPI Shares. There are 3,000 shares of non par common
stock of AMPI issued and outstanding. Each AMPI share shall be converted
into the right to receive 1,500 shares of common stock of AZC0, a Delaware
corporation (the exchange ratio of shares is referred to herein as the
"Conversion Ratio") at a deemed value of $.65 per share. A total of
4,500,000 shares of common stock of AZCO will be issued in exchange for
all, of the shares of AMPI.
(b) Fractional Interest. No fractional interests will be issued in
exchange for shares of AMPI. Cash will be paid for such interests of AMPI,
which would result in receipt of a fractional interest of AZCO.
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(c) No Dissenting Shares. The AMPI Shareholders hereby waive any right
to dissent or payment under ARS S.10-1302.
(d) Adjustment of Conversion Ratio. The Conversion Ratio shall be
subject to equitable adjustment in the event of any stock split, stock
dividend, reverse stock split or other change in the number of AZCO Shares
outstanding. No AMPI Share shall be deemed to be outstanding or to have
rights other than those set forth above in this Agreement.
2.3 Procedure for Issuance of Shares. Immediately after the Effective Date
of the Merger:
(a) The AMPI Shareholders will surrender the AMPI share certificates
to SMI and SMI will deliver to the AMPI Shareholders in the manner provided
in paragraph 2.3 the certificates evidencing AZCO's Shares issued in the
merger.
(b) AZCO will furnish to each AMPI Shareholder stock certificates
representing that number of AZCO Shares provided hereinabove equal to the
product of (i) the Conversion Ratio times (ii) the number of outstanding
AMPI Shares.
(c) Neither AMPI nor AZCO will pay any dividend or make any
distribution on AMPI or AZCO Shares (with a record date before, at, or
after the Effective Date) to any record holder of outstanding AMPI or AZCO
Shares until after the Effective Date.
(d) AZCO shall pay all charges and expenses incurred in connection
with the issuance of new Shares by AZCO in connection with this Agreement.
ARTTCLE III
CLOSING
3.1 Time and Place. The exchange of items described in Section 3.2 below
("▇▇▇ ▇▇▇▇▇▇▇") shall be held at the offices of ▇▇▇▇▇ ▇▇▇▇, Esq., ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on, March 9, 1999, or at such other
time and place as determined by SMI.
3.2 Actions at Closing. At the Closing (i) AMPI will deliver to SMI the
various certificates, instruments and documents referred to in Paragraph 5.6 of
this Agreement, (ii) SMI will deliver to AMPI the various certificates,
instruments and documents referred to in Paragraph 4.6 below, and (iii) pursuant
to Section 3.3 ), SMI shall file with the Secretary of State of Delaware, the
Certificate of Merger and with the Secretary of State of Arizona the Articles of
Merger in the forms attached hereto as Exhibit A-1 (the "Certificate of Merger")
and Exhibit A-2 ("the Articles of Merger") on or before the fifth day after the
Closing and (iv) the AMPI shareholders will surrender their AMPI share
Certificates to SMI and SMI will deliver to the AMPI shareholders in the manner
provided in Paragraph 2.3, the Certificates evidencing AZCO's shares issued in
the merger.
Page 3 of 18
3.3 Voting Trust Agreement. At the Closing the AMPI shareholders shall
deliver to SMI and AZCO the executed voting trust agreement in the form of
Exhibit B hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SMI
SMI represents and warrants to AMPI as of the date of the execution of this
Agreement, as of the Closing Date, and as of the Effective Date, as set forth in
this Article IV (all representations and warranties regarding SMI shall apply to
SMI and to any other entity which is a member of the same "control group of
corporations" as SMI under Section 1563 of the Internal Revenue Code): SMI
incorporates by reference the Form 10-K filing with the SEC by AZCO for the
fiscal year ended June 30, 1998, and the AZCO Form 10-Q filing for the fiscal
quarter ended September 30, 1998 "AZCO SEC Filings") for a Delaware corporation
and agrees at Closing to update and correct said AZCO SEC filings if any
material event has occurred.
The parties acknowledge that the information set forth in the AZCO SEC
filings provide adequate assurance for the Board of Directors of AMPI to rely
upon in entering into this merger. Accordingaly, SMI makes no further warranty
or representation other than as set forth in this Article and as set forth in
their SEC filings,
4.1 Organization, Qualification and Corporate Power. AZCO and SMI are
corporations duly organized validly existing and in good standing under the laws
of the State of Delaware. AZCO and SMI are duly authorized to conduct business
and are in good standing under the laws of each jurisdiction where such
qualification is required except where the lack of such qualification would not
have a material adverse effect on the financial condition of AZCO and SMI and
any subsidiaries taken as a whole or on the ability of the parties to consummate
the transactions contemplated by this Agreement. SMI has full corporate power
and authority to carry on the businesses in which it is engaged and to own and
use the properties owned by it.
4.2 Authorized and Outstanding Stock, AZCO's authorized capital stock
consists of One Hundred Million (100,000,000 ) shares of $.02 par value Common
Stock, of which 25,252,121 shares are issued and outstanding as of December 31,
1998. All outstanding Shares of AZCO have been duly authorized and validly
issued, fully paid, noassessable and issuad in full compliance with the
preemptive rights of any existing shareholders and in full compliance with all
applicable federal and state securities laws.
No shares of AZCO's capital stock have been reserved for issuance for any
purposes, and there are no outstanding rights, subscriptions, warrants, options,
conversion rights, commitments or agreements of any kind outstanding to purchase
or otherwise acquire from AZCO, or to cause AZCO to issue or purchase, any
shares of its capital stock, or securities or obligations of any kind
convertible into, exchangable for, or evidencing the right to acquire any shares
of capital stock, other than set forth in Exhibit C, and no additional shares,
rights or warrants of AZCO shall be issued from November 30, 1998 to the date of
Closing.
Page 4 of 18
4.3 Necessary Authority. AZCO and SMI have all requisite corporate power
and authority to enter into, deliver and perform this Agreement and to
consummate the transactions contemplated herein. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all necessary action on the
part of AZCO's and SMI's Board of Directors and Shareholders. This Agreement has
been duly executed and delivered by AZCO and SMI and constitutes a valid and
legally binding obligation, enforceable against AZCO and SMI in accordance with
its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
generally now or hereafter in effect, and subject to the availability of
equitable remedies.
4.4 No Conflicts. The execution, delivery and performance of this Agreement
by AZCO and SMI and their consummation of the transactions contemplated herein,
do not and will not (i) require the consent, approval, authorization, order,
filing, registration or qualification of or with any court, governmental
authority or third person, except that which already has been obtained, (ii)
conflict with or result in any violation of or default under any provision of
AZCO and SMI's existing Certificates of Incorporation, as amended and in effect,
or the Bylaws of AZCO and SMI or of any mortgage, indenture, lease, agreement or
other instrument, permit, concession, grant, franchise or license to which AZCO
and SMI are a party or by which it or its properties are bound, (iii) violate
any law, ordinance, rule, regulation, judgment, order or decree applicable to
AZCO and SMI, or (iv) result in the creation of any security interest, claim,
lien, charge or encumbrance upon any of the Shares, except where the violation,
conflict, breac' default, acceleration, termination, modification, cancellation
or security interests would not have a material adverse effect on the financial
condition of AZCO and SMI or on the ability of the Parties to consumniate the
transaction contemplated herein.
4.5 Subsidiaries. Except for the ownership of all of the issued and
outstanding Common Stock of SMI, a Delaware corporation, and as otherwise
disclosed in the AZCO SEC filings, AZCO has no other subsidiary corporation or
other entity in which it has an ownership interest. Except as disclosed in AZCO
SEC filinas, there is no corporation that is a member of the same "controlled
group of corporations" of AZCO and SMI as determined under Section 1563(a) of
the Code.
4.6 Corporate Documents. Complete and correct copies of the Certificates of
Incorporation of AZCO and SMI and all amendments thereto, certified by the
Secretary of AZCO, and of the Bylaws of AZCO and SMI as amended, certified by
the Secretary of AZCO and SMI have been furnished to AMPI, and no amendments to
the Certifcate of Incorporation or the Bylaws have been adopted subsequent to
said furnishing. AZCO and SMI are not in default in the performance, observation
or fulfillment of their Certificates of Incorporation or Bylaws. The minute
books of SMI have been furnished to AMPI to the extent available. The minute
books of SMI accurately reflect all material transactions and corporate events
involving SMI and all material actions taken by the directors and/or the
shareholders of SMI. All material actions taken by SMI requiring director and/or
shareholder approval were duly approved by the directors and/or the shareholders
of SMI in accordance with SMI's Certificates of Incorporation, Bylaws and
applicable law.
Page 5 of 18
4.7 Financial Statements. The audited consolidated balance sheets of AZCO
and SMI as of the end of its latest fiscal year and related statement of
earnings for the twelve-month period then ending as reported by the independent
certified public accountant and the unaudited balance sheets as of September 30,
1998, and the related statement of earnings for the year-to-date period then
ended, are complete and correct and fairly represent the financial condition of
AZCO and SMI as of the dates thereof, and the results of AZCO and SMI for the
periods then ended in conformity with generally accepted accounting principles
applied on a basis consistent with that of preceding periods.
Since the close of the latest fiscal year, there has not been any material
adverse change in the business or financial condition of AZCO or SMI taken as a
whole from that shown on the unaudited financial statements as of September 30,
1998.
ARTICLE V
REPRESENTATIONS AND WARRANTIEES OF AMPI
AMPI and each AMPI Shareholder represent and warrant to SMI and AZCO as of
the date of the execution of this Agreement, as of the Closing Date, and as of
the Effective Date as set forth in this Article V. AMPI and the AMPI
Shareholders incorporate by reference AMPI's November 30, 1998 Financial
Statement prepared by ▇▇▇▇▇▇▇ ▇▇▇▇, CPA, and agrees at Closing to update and
correct said Financial Statement if any material event has occurred after
November 30, 1998.
The parties acknowledge that the information set forth in the AMPI
Financial Statement provides adequate assurance for the Board of Directors of
AZCO and SMI to rely upon in entering into this merger. Accordingly, AMPI and
the AMPI Shareholders make no further warranty or representation other than as
set forth in this Article and as set forth in the November 30, 1998 Financial
Statement.
5.1 Organization, Qualification and Corporate Power. AMPI is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Arizona and is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification is
required except where the lack of such qualification would not have a material
adverse effect on the financial condition of AMPI. AMPI has full corporate power
and authority to carry on the business in which it is engaged and to own and use
the Properties owned by it.
5.2 Authorized and Outstanding Stock. AMPI's authorized capital stock
consists of 10,000 shares of capital stock of no par value Common Stock, of
which 3,000 shares are issued and outstanding as of the Effectve Date. All
outstanding shares of AMPI have been duly authorized and validly issued, fully
paid, nonassessable and issued in full compliance with the preemptive rights of
any existing shareholders and in full compliance with all applicable federal and
state securities laws.
No shares of AMPI's capital stock have been reserved for issuance for any
purposes, and there are no outstanding rights, subscriptions, warrants, options,
conversion rights, commitments or agreements of any kind outstanding to purchase
or otherwise acquire from AMPI, or to cause AMPI to issue or purchase, any
shares of its captial stock, or securities or obligations of any kind
convertible
Page 6 of 18
into, exchangeable for, or evidencing the right to acquire any shares of capital
stock, other than set forth in Exhibit D, and no additional shares, rights or
warrants of AMPI shall be issued from November 30, 1998 to the date of Closing.
5.3 Necessary Authority. AMP1 has all requisite corporate power and
authority to enter into, deliver and perform this Agreement and to consummate
the transactions contemplated herein. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated herein have
been duly authorized by all necessary action on the part of AMPI's Board of
Directors and Shareholders. This Agreement has been duly executed and delivered
by AMPI and constitutes its valid and legally binding obligation, enforceable
against AMPI in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other laws affecting the enforcement
of creditors' rights generally now or hereafter in effect, and subject to the
availability of equitable remedies.
5.4 No Conflicts. The execution, delivery and performance of this Agreement
by AMPI and its consummation of the transactions contemplated herein, do not and
will not (i) require the consent, approval, authorization, order, filing,
registration or qualification of or with any court, governmental authority or
third person, except that which already has been obtained, (ii) conflict with or
result in any violation of or default under any provision of AMPI's existing
Certificate of Incorporation, as amended and in effect; or the Bylaws of AMPI or
of any mortgage, indenture, lease agreement, or other instrument, permit,
concession, grant, franchise or license to which AMPI is a party or by which it
is bound, (iii) violate any law, ordinance, rule, regulation, judgment, order or
decree applicable to AMPI, or (iv) result in the creation of any security
interest, claim, lien, charge or encumbrance upon any property or the Shares,
except where the violation, conflict, breach, default acceleration, termination,
modification, cancellation or security interests would not have a material
adverse effect on the financial condition of AMPI or on the ability of the
Parties to consummate the transaction contemplated herein.
5.5 Subsidiaries. AMPI has no subsidiary corporation or other entity in
which it has an ownership interest. There is no corporation that is a member of
the same "controlled group of corporations" as AMPI, as determined under Section
1563(a) of the Code.
5.6 Corporate Documents. Complete and correct copies of the Certificate of
Incorporation of AMPI and all amendments thereto, certified by the Secretary of
State of Arizona, and of the Bylaws of AMPI, as amended, certified by the
Secretary of AMPI are being furnished to SMI and no amendments to the
Certificate of Incorporation or the Bylaws will be adopted subsequent to- said
furnishing. AMPI is not in default in the performance, observation or
fulfillment of its Certificate of Incorporation or Bylaws. The minute books of
AMPI have been filmished to SMI. The minute book accurately reflects all
material transactions and corporate events involving AMPI and all material
actions taken by the directors and/or the shareholders of AMPI. All materia1
actions taken by AMPI requiring director and/or shareholder approval were duly
approved by the directors and/or the shareholders of AMPI in accordance with
AMPI's Certificate of Incorporation, Bylaws and applicable law.
Page 7 of 18
5.7 Financial Statements. AMPI is newly incorporated and the November 30,
1998 financial statement is accurate. AMPI has no liabilities, commitments or
obligations of any nature, whether absolute, accrued, contingent, known or
unknown, due, or to become due, or otherwise.
5.8 Litigation. Except as set forth on Exhibit E, there is no legal,
administrative, arbitration or other proceedings, claim, or action of any nature
or investigation pending or threatened against or involving AMPI or which
questions or challenges the validity of this Agreement, or any action taken or
to be taken by AMPI pursuant to this Agreement, or in connection with the
transactions contemplated hereby; and AMPI and the AMPI shareholders do not
know, nor have any reason to know, of any valid basis for any such legal,
administrative, arbitration or other proceeding, claim or action of any nature
or investigation. AMPI is not subject to any judgment, order or decree entered
in any lawsuit or proceeding which has had an adverse effect on its business or
on its ability to acquire any property or conduct its business in any area.
5.9 Tax Returns. AMPI has duly filed all federal, state, local and foreign
tax reports and returns required to be filed by it and, except as set forth in
Exhibit F, has duly paid all taxes and other charges due or claimed to be due
from it by federal, state, local or foreign taxing authorities; the reserves for
taxes reflected in the AMPI Balance Sheet as of November 30, 1998 are adequate;
and there are no tax liens upon any property or assets of AMPI.
5.10 Contracts. Except for the agreements listed in Exhibit G, copies of
which have been furnished or made available to SMI, AMPI is not a party to, and
its property is not bound by, any agreement, indenture, mortgage, deed of trust,
lease, joint venture agreement, partnership agreement, or any other arrangement
of any kind or nature. There is no default or event that with notice or lapse of
time, or both, would constitute a default by any Party to any of the agreements
listed in Exhibit G. Except as listed in Exhibit G, AMPI has not received notice
that any part to any of these agreements intends to cancel, terminate or modify
any of these agreements or to exercise or not to exercise any options under any
of these agreements.
5.11 Permits and Other Operating Rights. AMPI does not require the ccnsent
of any third person to permit it to operate its business in the manner in which
it presently is being conducted, and possesses all permits and other
authorizations from third persons, including without limitation, federal,
foreign, state and local governmental authorities, presently required by
applicable provisions of law, including statutes, regulations and existing
judicial decisions, and by the property and contract rights of third persons,
necessary to permit it to operate its business in the manner in which it
presently is being conducted.
5.12 Compliance with Law. AMPI is in compliance with all laws, regulations
and orders applicable to its business, including without limitation, applicable
environmental, anti-pollution, building, zoning or health laws, ordinances and
regulations in respect of its structures and equipment. AMPI has not received
any notification that it is in violation of any such laws, regulations or orders
and no such violations exist.
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5.13 Mineral Exploration Data. AMPI and the AMMI Shareholders have provided
SMI with accurate and complete copies of all drill logs and any other data
relating to the mineral exploration of ANMI's property that is in the possession
of AMPI or any of the AMPI shareholders.
5.14 Real Property. Exhibit H sets forth all interests in real property
(the "Properties") held by AMPI. With respect to any Properties AMPI owns in fee
simple, if any, AMPI is in exclusive possession of and owns such Properties free
and clear of all defects, liens and encumbrances except those specifically
identified on Exhibit H.
5.15 Interests in Contracts. With respect to those Properties in which AMPI
holds an interest under contracts: (i) AMPI is in exclusive possession of such
Properties; (ii) AMPI has not received any notice of default of any of the terms
or provisions of the contracts; (iii) AMPI has the authority under the contracis
to perform fully its obligations under this Agreement; (iv) to the best of
AMPI's knowledge and belief, the contracts are valid and are in good standing;
and (v) to the best of AMPI's knowledge and belief the Properties covered
thereby are free and clear of all defects, liens and encumbrances except for
those specifically identified on Exhibit H or in such contracts. AMPI has
delivered to SMI all information concerning title to the Properties in AMPI's
possession or control, including, but not limited to, true and correct copies of
all contracts relating to the Properties of which AMPI has knowledge.
5.16 Mining Claims. With respect to unpatented mining claims that are
included within the Properties, whether owned outright or held under lease or
other contractual arrangement, except as provided in Exhibit H and subject to
the paramount title of the United States: (i) the unpatented mining claims were
properly laid out and monumented; (ii) all required location and validation work
was properly performed; (iii) location notices and certificates were properly
recorded and filed with appropriate governmental agencies; (iv) a assessment
work or maintenance fees required to hold the unpatented mining claims has been
performed in a manner consistent with that required of the owner of the claim
through the assessment year ending on or before September 1, 1998; (v) all
affidavits of assessment work, maintenance fees, and other filings to maintain
the claims in good standing have been properly recorded or filed with
appropriate governmental agencies; (vi) the claims are free and clear of
defects, liens and encumbrances arising by, through or under AMPI and (vii) AMPI
has no knowledae of conflicting unpatented mining claims. Nothing in this
Section 5.16, however, shall be deemed to be a representation or a warranty that
each of the unpatented mining claims has a discovery of minerals within its
respective boundaries. With respect to those unpatented mining claims that were
not located by AMPI or an affiliate of AMPI, but are included within the
properties, AMPI makes the foregoing representations and warranties (with the
foregoing exceptions) to the best of its knowledge and belief.
5.17 Personal Property. Exhibit I to this Agreement is a complete and
accurate schedule specifying the location of and describing all trucks,
automobiles, machinery, equipment, fuirniture, and all other items of tangible
personal property having an individual fair market value in excess of $1,000
owned by, and in the possession of, or used by AMPI in connection with its
business. The Property listed in Exhibit I constitutes all such property
necessary for the conduct by of its business as now conducted, subject to normal
mainteriance, repair or replacement of such items in accordance with AMPI's
business practices. Except as stated in Exhibit I, no personal property listed
in Exhibit
Page 9 of 13
I is held under any lease, security agreement, conditional sales contract, or
other title retention or security arrangement, or is located other than in the
possession of AMTI. All of AMPI's interests in tangible and intangible personal
property are free and clear of restrictions on or conditions to transfer or
assignment, and free and clear of liens, pledges, charges, encumbrances,
equities, claims, conditions, or restrictions, except for (i) those disclosed in
AMPI's balance sheet as of November 30, 1998 that is included in the AMPI
financial statements, or in Exhibit I to this Agreement; (ii) the lien for
current taxes not yet due and payable; and (iii) matters that, in the aggregate,
are not substantial in amount and do not materially detract from or interfere
with the present or intended use of these assets, or materially impair the
business operations of ANTI. All tangible personal property of AMTI is in good
operating condition and repair, ordinary wear and tear excepted. No officer,
director, or employee of AMPI, nor any spouse, child, or other member of the
immediate family of any of these persons, owns, or has an interest, directly or
indirectly, in any of the personal property owned by or leased to AMPI.
ARTICLE VI
AMPI SHAREHOLDER SECURITIES REPRESENTATIONS
6.1 Each AMPI Shareholder hereby represents and warrants that he is not
acquiring the shares of the common stock of AZCO (the "Securities") in
connection with the Merger with the present intention of selling, offering to
sell or otherwise disposing of or distributing the Securities or any portion
thereof in any transaction other than a transaction exempt from registration
under the Securities Act of 1933, as amended (the "Act"). Each AMPI Shareholder
also represents that the entire legal and beneficial interest of the Securities
the AMPI Shareholder is acquiring is being acquired for, and will be held for
the account of, the AMPI Shareholder only and neither in whole nor in part for
any other person.
6.2 Each AMPI Shareholder represents and warrants that he understand that:
(a) neither the sale of the Securities which he is acquiring nor the
Securities themselves has been registered under the Act or any state
securities Laws, and the Securities must be held indefinitely unless
subsequently registered under the Act or an exemption from such
registration is available; and
(b) the share certificate representing the Securities will be stamped
with the following legend (or substantially equivalent language)
restricting transfer: "The securities represented by this certificate have
not been registered under the Securities Act of 1933 or the laws of any
state and have been issued pursuant to an exemption from registration
pertaining to such securities and pursuant to a representation by the
security holder named hereon that said securities have been acquired for
purposes of investment and not for purposes of distribution. These
securities may not be offered, sold, transferred, pledged or hypothecated
in the absence of registration, or the availability of an exception from
such registration. Furthermore, no offer, sale, transfer, pledge or
hypothecation is to take place without the prior written approval of
counsel to the issuer being affixed to this certificate. The stock transfer
agent has been ordered to effectuate transfers of this certificate only in
accordance with the above instructions."
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6.3 Each AMPI Shareholder represents and warrants that he realizes that his
acquisition of the Securities will be a highly speculative investment and that
he is able, without impairing his financial condition, to hold the Securities
for an indefinite period of time.
6.4 Each AMPI Shareholder hereby acknowledges that, to his satisfaction,
(i) he has either had access to or has been furnished with all of the
information regarding AZCO and the terms of his acquisition of the Securities to
his satisfaction, (ii) he has discussed the entire investment transaction and
the information described in clause (i) above with representatives of AZCO,
(iii) he has been provided the opportunity to ask questions concerning this
transaction and the terms and conditions thereof and all such questions have
been answered to his satisfaction, (iv) he has obtained all additional
information which he deems necessary to verify the accuracy of the information
previously disclosed or provided to him, and (v) he has had ready access to and
an opportunity to review any and all documents w1iich he deems relevant to this
transaction, and no information, oral or written, that he has requested has been
withheld by AZCO.
6.5 Without in any way limiting the representations set forth above, each
AMPI Shareholder further agrees that he shall in no event make any disposition
of all or any portion of the Securities which he is acquiring unless and until:
(a) there is then in effect a Registration Statement under the Act
covering such proposed disposition and such disposition is made in
accordance with said Registration Statement; or
(b) (1) he shall have notified AZCO of the proposed disposition and
shall have furnished AZCO with a detailed statement of the circumstances
surrounding the proposed disposition, (2) he shall have furnished AZCO with
an opinion of his own counsel to the effect that such disposition will not
require registration of such shares under the Act, and (3) such opinion of
his counsel shall have been concurred in by counsel for AZCO and AZCO shall
have advised him of such concurrence.
AIRTICLE VII
COVENANTS OF THI PARTIES
7.1 Covenants. The parties agree as follows with respect to the period from
and after the execution of the Agreement until Closing:
(a) General. Each of the parties will use its reasonable 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 satistfaction, but not waiver, of the closing
conditions set forth in Article VII below).
(b) Notices and Consents. SMI shall give any notices to third parites,
and will use its reasonable best efforts to obtain any third party
consents, that AMPI reasonably may request in connection with the matters
referred to in this Agreement.
Page 11 of 18
AMPI shall give any notices to third parties, and will use its
reasonable best efforts to obtain any third party consents, that SMI reasonably
may request in connection with the matters referred to in this Agreement.
(c) Operation of Business. Except as disclosed in the Exhibits, each
Party will not (and will not cause or permit any of its subsidiaries to)
engage in any practice, take any action, or enter into any transaction
outside the ordinary course of business. Without limiting the generality of
the foregoing:
(1) Neither of the parties will authorize or effect any change in
their charters or bylaws;
(2) Neither of the parties will grant any options, warrants, or
other rights to purchase or obtain any of their capital stock, or
issue, sell, or otherwise dispose of any of its capital stock,
(3) Neither of the parties will declare, set aside, or pay any
dividend or distribution with respect to their capital stock (whether
in cash or in kind), or redeem, repurchase, or otherwise acquire any
of its capital stock;
(4) Neither of the parties will issue any note, bond, or other
debt security or create, incur, assume, or guarantee any indebtedness
for borrowed money or capitalized lease obligation outside the
ordinary course of business;
(5) Neither of the parties will impose any security interest upon
any of its assets outside the ordinary course of business;
(6) Neither of the parties will make any capital investment in,
make any loan to, or acquire the securities or assets of any other
Person outside the ordinary course of business;
(7) Neither of the parties will make any change in employment
terms for any of its directors, officers, and employees outside the
ordinary course of business; and
(8) Neither of the parties will commit to any of the foregoing.
(d) Full Access. Each Party will permit representatives of the other Party
to have full access at all reasonable times, and in a manner so as not to
interfere with the normal business operations of the Party being reviewed to all
premises, properties, personnel, books, records (including tax records),
contracts, and documents of or pertainiing to each of the parties and their
subsidiaries. The parties will treat and hold as such any confidential
information it receives from the other. The parties will treat and hold as such
any confidential
Page 12 of 18
information it receives from any of the parties in the course of the reviews
contemplated by this paragraph, will not use any of the confidential information
except in connection with this merger.
(e) Notice of Developments. Each Party will give prompt written notice
to the other of any material adverse development causing a breach of any of its
own representations and warranties in the previous two Articles above. No
disclosure by any Party pursuant to this paragraph, however, shall be deemed to
amend or supplement the Exhibits or to prevent or cure any misrepresentation,
breach of warranty, or breach of covenant.
ARTICLE VIII
OBLIGATION TO CLOSE: CONDITIONS
8.1 Conditions to Obligation of AMPI to Close. The obligation of AMPI and
its Shareholders to consummate the transactions to be performed by it in
connection with the Closing is subject to satisfaction of the following
conditions:
(a) SMI and its subsidiaries shall have procured any third party
consents specified in this Agreement;
(b) The representations and warranties of SMI or AZCO set forth in
Article IV above shall be true and correct in all material respects at and
as of the Closing Date;
(c) SMI shall have performed and complied with all of its covenants
hereunder in all material respects through the Closing;
(d) SMI shall have delivered to AMPI a certificate to the effect that
each of the conditions specified above in Section 8.1(b) and (c) is
satisfied in all respects;
(f) AMPI shall have received from counsel to SMI an opinion in form
and substance as set forth in Exhibit J attached hereto; addressed to AMPI,
and dated as of the Closing Date; and
(g) All actions to be taken by SMI in connection with consummation of
the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance
to AMPI.
8.2 Conditions to Obligation of SMI to Close. The obligation of SMI to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(a) This Agreement and the Merger shall have received any requisite
AZCO stockholder approval;
Page 13 of 18
(b) The representations and warranties of AMPI and the AMPI
Shareholders set forth in Article V above shall be true and correct in all
material respects at and as of the Closing Date unless rejected by the
Board of Directors of SMI,
(c) AMPI and the AMTI Shareholders shall have performed and complied
with all of their covenants hereunder in all material respects through the
Closing;
(d) AMPI and the AMPI Shareholders shall have delivered to SMI a
certificate to the effect that each of the conditions specified above in
Section 8.2(b) and (c) is satisfied in all respects;
(e) SMI shall have received from counsel to AMPI an opinion in form
and substance. as set forth in Exhibit K attached hereto, addressed to SMI,
and dated as of the Closing Date;
(f) Ail actions to be taken by AMPI in connection with consummation of
the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance
to SMI.
(g) 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, (b) cause any of the transactions contemplated by this Agreement
to be rescinded following consummation, (c) affect adversely the right of
the Surviving Corporation to own the former assets, to operate the former
businesses, or (d) there shall not be any judgment, order, decree,
stipulation, injunction, or charge in effect preventing consummation of any
of the transactions contemplated by this Agreement;
(h) APPI and the AMPI Shareholders shall have procured any third party
consents specified in this Agreement.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS
9.1 Survival of Representations, Warranties and Covenants of AZCO, SMI,
AMPI and AMPI's Shareholders. Except as otherwise specifically provided herein,
the representations, warranties of AZCO, SMI, AMPI and AMPI's Shareholders shall
survive the Effective Date unless the context clearly indicates to the contrary
and shall continue in full force and effect.
9.2 Indemnity of AZC0, SMI, AMPI Shareholders and AMPI. The parties,
jointly and severally and on a pro rata basis, agree to and shall indemnify each
other against any and all loss, damage or expense, resulting from any
misrepresentation made or breach of warranty given or covenant made in this
Agreement or any of the schedules or Exhibits hereto, as well as from and
Page 14 of 18
against all debts, claims and liabilities of the parties which have arisen or
may arise because ot or as a result of, any fact, event or transaction existing,
or claim before or after the Effective Date, regardless of when the cause of
action therefor shall be deemed to arise except for:
(a) Any such debt, claim or liability which may be included as a
liability in the financial statements (including balance sheets) (to the extent
of the amount thereof included); and (b) Current liabilities incurred by SMI
and AMPI in the ordinary and usual course of business between November 30,
1998 and the Effective Date (provided that such liabilities in the aggregate do
not exceed Five Thousand Dollars ($5,000); and
AMPI's Shareholders expressly waive any defense under the applicable
Statute of Limitations with respect to the period during which indemnity of any
claim by SMI hereunder if such Statutes of Limitations are inconsistent with the
time periods established in this Agreement.
ARTICLE X
TERMINATION
10.1 Termination of Agreement. Either of the Parties may terminate this
Agreement with the prior authorization of its Board of Directors (whether before
or after stockholder approval) as provided below:
(a) the Parties may terminate this Agreement by mutual written consent
at any time prior to the Effective Date;
(b) SMI may terminate this Agreement by giving written notice to AMPI
at any time prior to the Effective Date (a) in the event AMPI has breached
any material representation, warranty, or covenant contained in this
Agreement in any material respect, SMI has notified AMPI of this breach,
and the breach has continued without cure for a period of thirty (30) days
after the notice of breach or (b) if the Closing shall not have occurred on
or before March 1, 1999, unless the failure to close results primarily from
SMI or any SMI shareholder breaching any representation, warranty, or
covenant contained in this Agreement; and
(c) AMPI may terminate this Agreement by giving written notice to SMPI
at any time prior to the Effective Date (a) in the event SMI has breached
any material representation, warranty, or covenant contained in this
Agreement in any material respect, AMPI has notified SMI of the Breach, and
the breach has continued without cure for a period of thirty (30) days
after the notice of breach or (b) if the Closing shall not have occurred on
or before March 1, 1999, unless the failure to close results primarily from
SMI breaching any representation, warranty, or covenant contained in this
Agreement.
10.2 Effect of Termination. If any Party terminates this Agreement
pursuant to this Article, all rights and obligations of the Parties
hereunder shall terminate without any liability of any Party to any other
Party (except for any liability of any Party then in breach). However, AZCO
shall
Page 15 of 18
have the right, but not the obligation, to own an undivided twenty percent (20%)
of the emsting forty-three (43) mining claims included in the Properties and
AMPI and the AMPI Shareholders shall take such actions as are reasonably
required to effect such transfer.
ARTICLE XI
MISCELLANEOUS
11.1 Execution of Counterparts. For the convenience of the parties, this
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
document.
11.2 Notices. All notices which are required or may be given pursuant to
the terms of this Agreement shall be in writing and shall be sufficient in all
respects if delivered personally or by registered or certified mail, postage
prepaid, as follows:
If to SMI: ▇▇▇▇▇▇▇ Mining, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
P. 0. Box 1895
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to AZCO: Azco Mining, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
P. 0. Box 1395
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and a copy to: ▇▇▇▇▇ ▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to AMPI: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Arizona Mica Properties, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ 0. ▇▇▇
Arizona Mica Properties, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. Bleak
Arizona Mica Properties, inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Page 16 of 18
With a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ & ▇▇▇▇▇▇, P.L.C.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as shall be furnished in like manner by any Party to
the others. Any such notice shall be deemed to have been given, received and
become effective for all purposes at the time it shall have been (i) delivered
to the addressee as indicated by the return receipt (if transmitted by mail) or
the affidavit of the messenger (if transmitted by personal delivery), or (ii)
presented for delivery to the addressee as so indicated during normal business
hours, if such delivery shall have been refused for any reason.
11.3 Assignment, Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Parties hereto and their respective
successors and assigns. No Party shall assign any of its rights or obligations
hereunder without the prior written consent of the other parties.
11.4 Applicable Laws. This Agreement shall be construed and governed by the
internal laws, and not the law of conflicts, of Arizona to agreements made and
to be performed in Arizona.
11.5 Entire Agreement. This Agreement, together with the Schedules and
Exhibits attached hereto, constitutes the entire agreement among the Parties
hereto, and no Party hereto shall be bound by any communications between them on
the subject matter hereof unless such communications are in writing and bear a
date contemporaneous with or subsequent to the date hereof. Any prior written
agreements or letters of intent among the Parties shall, upon the execution of
this Agreement, be null and void.
11.6 Heading. The headings in the sections of this Agreement are inserted
for convenience only and shall not constitute a part hereof or affect the
meaning or interpretation hereof.
11.7 Representations as to Compliance with Law. Whenever a representation
or warranty is made herein with respect to compliance with any law, that
representation means the applicable subject matter is in compliance with
applicable statutes, regulations and ordinances as in existence on the date
hereof and on the Closing Date and does not extend to any amendments or
revisions of such laws adopted subsequent to such dates.
11.3 Waiver, Discharge, Etc. This Agreement may not be released, discharged
or modified except by an instrument in writing signed on behalf of each of the
parties hereto. The failure of a Party to enforce any provision of this
Agreement shall not be deemed a waiver by such Party of any other provision or
subsequent breach of the same or any other obiigation hereunder.
Page 17 of 18
IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the 9th day of March, 1999.
Arizona Mica Properties, Inc., AZCO Mining, Inc.,
an Arizona corporation a Delaware Corporation
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- ----------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President Its President
Arizona Mica Properties, Inc. ▇▇▇▇▇▇▇ Mining, Inc.,
Shareholders: a Delaware corporation
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------- ----------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as an individual Its President
By /s/ ▇▇▇▇ ▇. ▇▇▇
---------------
▇▇▇▇ ▇. ▇▇▇, as an individual
By /s/ ▇▇▇▇▇ ▇. Bleak
------------------
▇▇▇▇▇ ▇. Bleak, as an individual
Page 18 of 18
EXHIBITS TO AGREEMENT AND PLAN OF MERGER
ARIZONA MICA PROPERTIES, INC. INTO ▇▇▇▇▇▇▇ MINING, INC.
Exhibit A-1 Certificate of Merger (3.2)
Exhibit A-2 Articles of Merger (3.2)
Exhibit B AZCO Voting Trust
Exhibit C AZCO Shares Reserved (4.2)
Exhibit D AMPI Shares Reserved (5.2)
Exhibit E ANTI Litigation (5.8)
Exhibit F AIAPI Tax Returns Not Filed (5.9)
Exhibit G ANTI Contracts (5. 10)
Exhibit H AMPI Real Property (5.14) and AMPI Mining Claims (5.16)
Exhibit I AMPI Personal Property (5.17)
Exhibit J SMI Counsel's Opinion (8. 1 (f))
Exhibit K ANTI Counsel's Opinion (8.2(e))
EXHIBIT A-1
CERTIFICATE OF MERGER
STATE OF DELAWARE
CERTIFICATE OF MERGER OF
▇▇▇▇▇▇▇ MINING INC. AND
ARIZONA MICA PROPERTIES, INC.
Pursuant to Title 8, Section 252 (c) of the Delaware General Corporation Law,
the undersigned corporation executed the following Certificate of Merger:
FIRST: The name of the surviving corporation is ▇▇▇▇▇▇▇ Mining Inc., a Delaware
corporation, and the name of the corporation being merged into this surviving
corporation is Arizona Mica Properties, Inc., an Arizona.corporation.
SECOND: The Agreement and Plan of Merger has been approved, adopted, certified,
executed and acknowledged by each of the constituent corporations.
THIRD: The name of the surviving corporation is ▇▇▇▇▇▇▇ Mining Inc., a Delaware
corporation.
FOURTH: The Certificate of Incorporation of the surviving corporation shall be
its Certificate of Incorporation.
FIFTH: The authorized stock and par value of Arizona Mica Properties, Inc. is
10,000 shares of common stock, no par value.
SIXTH: The Agreement and Plan of Merger is on file at ▇▇▇▇ ▇▇▇▇ ▇▇. , ▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the place of business of the surviving corporation.
SEVENTH: A copy of the Agreement and Plan of Merger will be furnished by the
surviving corporation on request, without cost, to any stockholder of the
constituent corporations.
IN WITNESS WHEREOF, said surviving corporation has caused this certificate to be
signed by an authorized officer, the 9th day of March, A.D. 1999.
▇▇▇▇▇▇▇ MINING INC.
By:
---------------------------
Authorized Officer
Name:
-------------------------
Print or Type
Title:
------------------------
EXHIBIT A-2
ARTICLES OF MERGER
ARTICLES OF MERGER
OF
ARIZONA MICA PROPERTIES, INC.
an Arizona corporation
INTO
▇▇▇▇▇▇▇ MINING, INC.,
a Delaware corporation
Pursuant to A.R.S. 10-1 105(A), the undersigned corporations, by and
through the undersigned officers, hereby set forth the following Articles of
Merger:
1. Plan of Merger. The plan of merger is set forth on Exhibit A attached
hereto and is incorporated herein by this reference.
2. Parties to the Merger. The names of the corporations that are parties to
the merger are as follows:
ARIZONA MICA PROPERTIES, INC.
and
▇▇▇▇▇▇▇ MINING, INC.
3. Surviving Corporation. ▇▇▇▇▇▇▇ MINING, INC., located at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, is the surviving
corporation.
4. Statutory Agent for Surviving Corporation. The name and address of the
statutory agent of the surviving corporation is:
The Corporation Trust Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
5. Outstanding Shares. The number of shares outstanding and entitled to
vote for each corporation, at the time of the approval by the respective
shareholders of the plan of merger, was as follows:
ARIZONA MICA PROPERTIES, INC. 3,000 shares
▇▇▇▇▇▇▇ MINING, INC. 100 shares
Page 1 of 2
6. Approvals. Ail issued and outstanding shares of ARIZONA MICA PROPERTIES,
INC., an Arizona corporation, were voted in favor of the plan of merger. All
issued and outstanding shares of ▇▇▇▇▇▇▇ MINING, INC., a Delaware corporation,
were voted in favor of the plan of merger.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of
this ___ day of March, 1999.
ARIZONA MICA PROPERTIES, INC.
an Arizona corporation
By
------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
By
------------------------------
▇▇▇▇▇ ▇. Bleak, Secretary
▇▇▇▇▇▇▇ MINING, INC.,
a Delaware corporation
By
------------------------------
________________, President
By
------------------------------
________________, Secretary
Page 2 of 2
EXHIBIT B
AZCO VOTING TRUST
VOTING AGREEMENT
THIS VOTING AGREEMENT is made and dated for reference effective as of
the _ day of January, 1999.
BETWEEN:
AZCO MINING INC., a company duly incorporated under the laws of the
State of Delaware, U.S.A., and having an executive office and an
address for notice and delivery located at Suite 1250, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(the "Company");
OF THE FIRST PART
AND:
ARIZONA MICA PROPERTIES, INC., a company duly incorporated under the
laws of the State of Arizona, U.S.A., and having an address for notice
and delivery located at c/▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, P.L.C., of ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇
("Arizona Mica");
OF THE SECOND PART
AND:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ 0. ▇▇▇ and ▇▇▇▇▇ ▇ ▇▇▇▇▇, the UNDERSIGNED
SHAREHOLDERS OF ARIZONA MICA, each having an address for notice and
delivery also located at c/▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, P.L.C., of ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇
(each such individual being a "Shareholder");
OF THE THIRD PART
AND:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, each being a shareholder of the
Company and having an address for notice and delivery located at Suite
1250, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(each such individual being,a "Company Shareholder");
OF THE FOURTH PART
(The Company, Arizona Mica, the Shareholders and the Company
Shareholders being hereinafter singularly also referred to as a
"Party" and collectively referred to as the "Parties" as the context
so requires).
WHEREAS:
A. In accordance with the terms and conditions of a certain "Agreement And Plan
Of Merger" dated of even date herewith (the "Plan of Merger"), as entered into
among the Company, Arizona Mica, the Shareholders and the Company's wholly-owned
subsidiary, ▇▇▇▇▇▇▇ Mining, Inc. ("▇▇▇▇▇▇▇"), the Company and the Shareholders
have therein determined to merge Arizona Mica with and into ▇▇▇▇▇▇▇, as the
surviving corporation, and, thereby, provide for the Company's acquisition,
through ▇▇▇▇▇▇▇, of all of the rights of Arizona Mica and its Shareholders to
develop 43 unpatented lode mining claims located in Yavapai County, Arizona, in
consideration for the issuance from treasury by the Company to the Shareholders
of an aggregate of 4,500,000 common shares of the Company (collectively, the
"Shares");
B. It is a condition of the Plan of Merger that the Shareholders thereby grant
to management of the Company the right to vote in respect of the Shares for a
period of five years from their date of issuance (the "Term") wherein the
Shareholders shall vote in favour of nominees of management to the Board of
Directors of the Company at any meeting of the shareholders of the Company (the
"Voting Agreement"),
C. It is a further condition of the Plan of Merger that during the Term of the
Voting Agreement the Company shall appoint one nominee of the Shareholders to
the Board of Directors of the Company (the "Shareholders' Nominee"); and
D. The Parties hereto have agreed to enter into this agreement (the "Agreement")
which formalizes the existing agreement, as set forth in the Plan of Merger, to
grant the Voting Agreement and to appoint the Shareholders' Nominee during the
Term and on the terms and conditions hereinafter contained;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
mutual covenants and provisos herein contained, THE PARTIES HERETO AGREE AS
FOLLOWS:
Article I
INTERPRETAT10N
1.1 Definitions. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the following words
and phrases shall have the following meanings:
(a) "Arizona Mica" means Arizona Mica Properties, Inc., a company duly
incorporated under the laws of the State of Arizona, U.S.A., or any
successor company, however formed, whether as a result of merger,
amalgamation or other action;
(b) "Agreement" means this Voting Agreement as from time to time
supplemented or amended by one or more agreements entered into
pursuant to the applicable provisions hereof-,
(c) "associate" and/or "affiliate" mean any associate and/or affiliate of
any of the Shareholders hereto as those terms are broadly defined
under all applicable corporate and securities laws;
(d) "Board of Directors" means the Board of Directors of the Company as
duly constituted from time to time;
(e) "Company" means Azco Mining Inc., a company duly incorporated under
the laws of the State of Delaware, U.S.A., or any successor company,
however formed, whether as a result of merger, amalgamation or other
action;
(f) "Company Shareholders" means ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
being shareholders and Directors of the Company and who have become
Parties to this Agreement for the sole purpose of ensuring more
complete compliance by the Company with the voting agreement
provisions of Delaware's general corporation laws;
(g) "Party" or "Parties" means the Company, Arizona Mica, the Shareholders
and/or the Company Shareholders hereto, as the context so requires,
and their respective successors and permitted assigns as the context
so requires;
(h) "Plan of Merger" has the meaning ascribed to it in recital "A."
hereinabove;
(i) "Regulatory Approval" means the acceptance for filing, if required, of
the transactions contemplated by this Agreement by the Regulatory
Authorities,
(j) "Regulatory Authorities" means The Toronto Stock Exchange, The
American Stock Exchange and such other regulatory agencies who have
jurisdiction over the affairs of the Parties hereto and including,
without limitation, and where applicable, the British Columbia
Securities Commission, the Ontario Securities Commission, the United
States Securities and Exchange Commission and all regulatory
authorities from whom any such authorization, approval or other action
is required to be obtained or to be made in connection with the
transactions contemplated by this Agreement;
(k) "Shareholder" or "Shareholders" means each of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇
0. ▇▇▇ and/or ▇▇▇▇▇ ▇. Bleak, being all of the Shareholders of Arizona
Mica, together with each of their respective successors and permitted
assigns as the context so requires;
(1) "Shareholders' Nominee" has the meaning ascribed to it in recital "C."
hereinabove;
(m) "Shares" has the meaning ascribed to it in recital "A." hereinabove;
(n) "Term" has the meaning ascribed to it in recital "B." hereinabove; and
(o) "Voting Agreement" has the meaning ascribed to it in recital "B."
hereinabove.
1.2 Interpretation. For the purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires,:
(a) 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;
(b) the headings are for convenience only and do not form a part of this
Agreement nor are they intended to interpret, define or limit the
scope or extent of this or any provision of this Agreement;
(c) 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
(d) words in the singular include the plural and words in the masculine
gender include the feminine and neuter genders, and vice versa.
Article II
VOTING AGREEMENT AND SHAREHOLDERS' NOMINEE
2.1 Establishment of the Voting Agreement. Subject to any prior and required
Regulatory Approval from any Regulatory Authorities, during the Term the
Shareholders hereby irrevocably grant and declare the Voting Agreement in
respect of the Shares and in favour of management of the Company, as such
management may exist from time to time, and hereby irrevocably appoint such
member of the Board of Directors of the Company as such Board of Directors of
the Company may determine, from time to time and in its sole and absolute
discretion, to vote on behalf of the Shareholders and in favour of the Company's
management's nominees for the Board of Directors of the Company and including,
without limitation, the Shareholders' Nominee, at any meeting of the
shareholders of the Company during the Term.
2.2 Establishment of the Shareholders' Nominee. Subject to any prior and
required Regulatory Approval ftom any Regulatory Authorities, during the Term
the Company hereby agrees to appoint the Shareholders' Nominee to the Board of
Directors of the Company and, in this regard, hereby agrees to include the
Shareholders' Nominee as a nominee for the Board of Directors of the Company at
any meeting of the shareholders of the Company during the Term.
2.3 Voting Agreement as a condition of the Plan of Merger. Each of the
Shareholders hereby acknowledges and agrees that the within Voting Agreement has
been entered into as a term and condition of the Plan of Merger and,
accordingly, that this Agreement is binding for all purposes in consideration of
such and that the terms hereof may not be changed and the Voting Agreement may
not be challenged without the consent of the Company, which shall have sole and
unfettered discretion as to how it considers any request for amendment.
2.4 Assignment or Transfer of any of the Shares underlying the Voting Agreement.
Notwithstanding the terms of the within Voting Agreement, it is hereby
acknowledged and agreed that, subject at all times to all existing resale
restrictions under applicable securities legislation affecting the Shares, the
Shareholders may sell, deal in, assign, transfer in any manner whatsoever or
agree to sell, deal in, assign or transfer in any
manner whatsoever any of the said Shares or beneficial ownership of or any
interest in them without the consent of any other Party hereto; provided,
always, that any such sale, assignment or transfer is made to a party which is
neither an affiliate nor an associate of the Shareholder failing which any such
sale, assignment or transfer, in addition to being subject to the consent of all
other Parties hereto, will be subject to such affiliate or associate becoming
bound in writing to the terms and conditions of this Agreement. In this regard
it hereby further acknowledged and agreed that any Shares which become the
subject of any sale, assignment or transfer to a party which is neither an
affiliate nor an associate of a Shareholder will no longer be subject to the
terms and conditions of this Agreement.
Article III
GENERAL PROVISIONS
3.1 Entire Agreement. This Agreement constitutes the entire agreement to date
between the Parties hereto and supersedes every previous agreement, expectation,
negotiation, representation or understanding, whether oral or written, express
or implied, statutory or otherwise, between the Parties with respect to the
subject matter of this Agreement.
3.2 Notice. Each notice, demand or other communication required or permitted to
be given under this Agreement shall be in writing and shall be sent by prepaid
registered mail deposited in a recognized post office and addressed to the Party
entitled to receive the same, or delivered to such Party, at the address for
such Party specified on the front page of this Agreement. The date of receipt of
such notice, demand or other communication shall be the date of delivery thereof
if delivered, or, if given by registered mail as aforesaid, shall be deemed
conclusively to be the third day after the same shall have been so mailed,
except in the case of interruption of postal services for any reason whatsoever,
in which case the date of receipt shall be the date on which the notice, demand
or other communication is actually received by the addressee. Each Party may at
any time and from time to time notify the other Parties in writing of a change
of address and the new address to which notice shall be given to it thereafter
until further change.
3.3 No Assignment. This Agreement may not be assigned by either Party except
with the prior written consent of the other Party.
3.4 Time of the Essence. Time will be of the essence of this Agreement.
3.5 Regulatory Authorities. This Agreement is subject to the prior Regulatory
Approval, if required, of each of the Regulatory Authorities.
3.6 Further Assurances. The Parties will from time to time after the execution
of this Agreement make, do, execute or cause or permit to be made, done or
executed, all such further and other acts, deeds, things, devices and assurances
in law
whatsoever as may be required to carry out the true intention and to give full
force and effect to this Agreement.
3.7 Representation and Costs. It is hereby acknowledged by each of the Parties
hereto that, as among the Company, Arizona Mica and the Shareholders herein,
▇▇▇▇▇▇ ▇▇▇▇▇▇, Barristers and Solicitors, acts solely for the Company, and that
Arizona Mica and the Shareholders have been advised by ▇▇▇▇▇▇ ▇▇▇▇▇▇ to obtain
independent legal advice with respect to their respective reviews and execution
of this Agreement. In addition, it is hereby further acknowledged and agreed by
the Parties hereto that each Party to this Agreement will bear and pay its own
costs, legal and otherwise, in connection with its respective preparation,
review and execution of this Agreement and, in particular, that the costs
involved in the preparation of this Agreement, and all documentation necessarily
incidental thereto, by ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be at the cost of the Company.
3.8 Applicable Law. This Agreement will be governed exclusively by and construed
and enforced in accordance with the laws prevailing in the State of Arizona,
U.S.A.
3.9 Severability and Construction. Each Article, section, paragraph, term and
provision of this Agreement, and any portion thereof, shall be considered
severable, and if, for any reason, any portion of this Agreement is determined
to be invalid, contrary to or in conflict with any applicable present or future
law, rule or regulation in a final unappealable ruling issued by any court,
agency or tribunal with valid jurisdiction in a proceeding to which any Party
hereto is a party, that ruling shall not impair the operation of, or have any
other effect upon, such other portions of this Agreement as may remain otherwise
intelligible (all of which shall remain binding on the Parties and continue to
be given full force and effect as of the date upon which the ruling becomes
final).
3.10 Captions. The captions, section numbers and Article numbers appearing in
this Agreement are inserted for convenience of reference only and shall in no
way define, limit, construe or describe the scope or intent of this Agreement
nor in any way affect this Agreement.
3.11 Counterparts. This Agreement may be signed by the Parties hereto in as many
counterparts as may be necessary, and via facsimile if necessary, each of which
so signed being deemed to be an original, and such counterparts together shall
constitute one and the same instrument and notwithstanding the date of execution
will be deemed to bear the execution date as set forth on the front page of this
Agreement.
3.12 No Partnership or Agency. The Parties have not created a partnership and
nothing contained in this Agreement shall in any manner whatsoever constitute
any Party the partner, agent or legal representative of the other Party, nor
create any fiduciary relationship between them for any purpose whatsoever. No
Party shall have any authority to act for, or to assume any obligations or
responsibility on behalf of, the other Party
except as may be, from time to time, agreed upon in writing between the Parties
or as otherwise expressly provided.
3.13 Consents and Waivers. No consent or waiver expressed or implied by either
Party in respect of any breach or default by the other in the performance by
such other of its obligations hereunder shall:
(a) be valid unless it is in writing and stated to be a consent or waiver
pursuant to this section;
(b) be relied upon as a consent to or waiver of any other breach or
default of the same or any other obligation;
(c) constitute a general waiver under this Agreement; or
(d) eliminate or modify the need for a specific consent or waiver pursuant
to this section in any other or subsequent instance.
IN WITNESS WHEREOF the Parties hereto have hereunto set their respective
hands and seals in the presence of their duly authorized signatories effective
as at the date first above written.
The CORPORATE SEAL of )
AZCO MINING, INC. )
was hereunto fixed in the presence of )
)
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ) (C/S)
------------------------------------- )
Authorized Signatory )
The CORPORATE SEAL of )
ARIZONA MICA PROPERTIES, INC. )
was hereunto fixed in the presence of )
)
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ) (C/S)
------------------------------------- )
Authorized Signatory )
SIGNED, SEALED and DELIVERED by ) NUMBER OF SHARES
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ) IN VOTING AGREEMENT
a Shareholder herein, in the presence of )
) 1,500,000
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ) ---------
---------------------- )
Witness Signature )
)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇ ) /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------- ) ---------------------
Witness Address ) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Paralegal )
----------------------------- )
Wintess Name and Occupation )
SIGNED, SEALED and DELIVERED by ) NUMBER OF SHARES
▇▇▇▇ 0. ▇▇▇ ) IN VOTING AGREEMENT
a Shareholder herein, in the presence of )
) 1,500,000
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ) ---------
---------------------- )
Witness Signature )
)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇ ) /s/ ▇▇▇▇ ▇. ▇▇▇
-------------------------- ) ---------------
Witness Address ) ▇▇▇▇ ▇. ▇▇▇
)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Paralegal )
----------------------------- )
Wintess Name and Occupation )
SIGNED, SEALED and DELIVERED by ) NUMBER OF SHARES
▇▇▇▇▇ ▇. BLEAK ) IN VOTING AGREEMENT
a Shareholder herein, in the presence of )
) 1,500,000
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ) ---------
---------------------- )
Witness Signature )
)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇ ) /s/ ▇▇▇▇▇ ▇. Bleak
-------------------------- ) ------------------
Witness Address ) ▇▇▇▇▇ ▇. Bleak
)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Paralegal )
----------------------------- )
Wintess Name and Occupation )
SIGNED, SEALED and DELIVERED by )
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a Company Shareholder )
herein, in the presence of )
)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ )
-------------------- )
Witness Signature )
)
307-1275 ▇. ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ )
----------------------------------- )
Witness Address )
)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Assistant )
------------------------------------- )
Witness Name and Occupation )
SIGNED, SEALED and DELIVERED by )
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a Company )
Shareholder herein, in the presence of )
)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ )
-------------------- )
Witness Signature )
)
307-1275 ▇. ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ )
----------------------------------- )
Witness Address )
)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Assistant )
------------------------------------- )
Witness Name and Occupation )
EXHIBIT C
AZCO SHARES RESERVED
AZCO MINING INC.
----------------
STATUS OF OUTSTANDING
---------------------
STOCK OPTIONS
-------------
From September 30, 1992 to March 9, 1999
----------------------------------------
Number of
Outstanding Date of
Optionee Options (1) Option Price Agreement Expiry Date
-------- ----------- ------------ --------- -----------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 200,000 $2.00 (U.S.) June 4, 1992 May 31, 1997
$1.30 (Cdn.) AMENDED ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇ 8, 1996
▇▇▇▇ ▇▇▇▇▇▇▇▇ Cancelled $2.00 (U.S.) June 5, 1992 June 5, 1994
(All 70,000 CANCELLED
cancelled on
18/01/93)
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ NIL $0.40 (U.S.) July 24, 1989 July 24, 1994
(All 203,444 EXERCISED
exercised on
11/03/94)
▇▇▇▇ ▇. ▇▇▇▇▇▇ NIL $0.40 (U.S.) July 24, 1989 July 24, 1994
(All 301,661 EXERCISED
exercised on
09/03/94)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ NIL $0.40 (U.S.) July 24, 1989 July 24, 1994
(All 186,528 EXERCISED
exercised on
11/03/94)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇ NIL $0.40 (U.S.) July 24, 1989 July 24, 1994
(50,000 exercised EXERCISED
on 19/01/93);
150,000 exercised
on 18/02/93; and
68,367 exercised
on 01/04/93)
▇▇▇▇▇▇ ▇. de NIL $0.40 (U.S.) October 4, 1991 July 24, 1994
▇▇▇▇▇ ▇▇▇▇▇ (All 40,000 EXERCISED
exercised on
02/12/93)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ CANCELLED $2.00 (U.S.) April 15, 1992 April 15, 1997
(All 100,000 CANCELLED
cancelled on
15/04/97)
Number of
Outstanding Date of
Optionee Options (1) Option Price Agreement Expiry Date
-------- ----------- ------------ --------- -----------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ NIL $0.40 (U.S.) April 15, 1992 May 20, 1997
(Exercised all EXERCISED
50,000 on
19/03/94)
Tokenhouse NIL $0.40 (U.S.) May 20, 1992 May 20, 1997
(10,000 exercised EXERCISED
on 30/11/93 and
40,000 exercised
on 29/09/93)
▇▇▇▇▇ ▇. ▇▇▇▇▇ CANCELLED $2.70 (Cdn.) October 4, 1991 October 4, 1996
(All 13,970 CANCELLED
cancelled on
21/02/92)
K. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ CANCELLED $2.70 (Cdn.) October 4, 1991 October 4, 1996
(All 13,970 CANCELLED
cancelled on
21/02/92)
▇▇▇▇ Lathigec (TSE) CANCELLED $2.40 (Cdn.) Sept. 18, 1992 Sept. 17, 1995
(All 42,500 CANCELLED
cancelled on
17/09/95)
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇) CANCELLED $2.40 (Cdn.) Sept. 18, 1992 Sept. 18, 1997
(All 10,000 CANCELLED
cancelled on
18/09/97)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (TSE) 7,500 $2.40 (Cdn.) Sept. 18, 1992 October 9, 1997
$1.80 (CDN.) AMENDED ON MARCH 8, 2001
MARCH 8, 1996
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇) NIL $1.55 (Cdn.) January 22, 1993 January 22, 1998
(59,795 exercised EXERCISED
on 16/02/93,
25,584 exercised
on 15/03/93) and
14,621 exercised
on 17/09/93)
▇▇▇▇ ▇. ▇▇▇▇▇▇ (TSE) NIL $1.55 (Cdn.) January 22, 1993 January 22, 1998
(16,032 exercised EXERCISED
on 26/02/93,
16,896 exercised
on 07/03/97) and
17,072 exercised
on 14/01/98)
▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇) CANCELLED $2.40 (Cdn.) January 12, 1993 January 12, 1998
(All 10,000 CANCELLED
cancelled on
31/12/95)
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (TSE) CANCELLED $2.50 (Cdn.) February 2, 1993 February 2, 1998
(All 25,000 CANCELLED
cancelled on
02/02/98)
Number of
Outstanding Date of
Optionee Options (1) Option Price Agreement Expiry Date
-------- ----------- ------------ --------- -----------
▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) NIL $2.23 (Cdn.) February 25, 1993 February 25, 1998
(All 5,000 EXERCISED
exercised on
25/08/93)
▇▇▇▇ ▇▇▇▇▇▇▇▇ (TSE) CANCELLED $2.30 (Cdn.) March 17, 1993 March 17, 1998
(Exercised 5,000 EXERCISED/
on 03/09/93 and CANCELLED
cancelled 5,000
on 31/12/97)
▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇▇▇) CANCELLED $2.00 (U.S.) April 20, 1993 April 20, 1998
(All 50,000 CANCELLED
cancelled on
20/04/98)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (TSE) CANCELLED $2.00 (U.S.) April 20, 1993 April 20, 1998
(All 50,000 CANCELLED
cancelled on
29/06/95)
▇▇▇▇▇▇ ▇. Deutsch (TSE) CANCELLED $2.00 (U.S.) April 30, 1993 April 30, 1998
(All 10,000 CANCELLED
cancelled on
20/04/98)
▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) NIL $2.00 (U.S.) May 7, 1993 May 7, 1998
(All 5,000 EXERCISED
exercised on
25/08/93)
▇▇▇▇ ▇▇▇▇▇▇▇▇ (TSE) CANCELLED $2.00 (U.S.) May 7, 1993 May 7, 1998
(All 10,500 CANCELLED
cancelled on
31/12/97)
▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇) 50,000 $2.77 (Cdn.) August 13, 1993 August 13, 1998
$1.85 (Cdn.) Amended on March 28, 2001
March 28, 1996
▇▇▇▇ ▇▇▇▇▇▇ (TSE) 10,000 $2.36 (U.S.) Sept. 3, 1993 Sept. 3, 1998
$1.85 (Cdn.) Amended on March 28, 2001
March 28, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) CANCELLED $3.10 (U.S.) October 18, 1993 October 18, 1994
(All 143,000 CANCELLED
cancelled on
08/04/94)
Deacon Barclays NIL $2.25 (Cdn.) November 29, 1993 November 29, 1996
de Zoete Wedd (All 150,000 EXERCISED
Limited (TSE) exercised on
01/06/94)
▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) CANCELLED $3.00 (U.S.) January 24, 1994 January 24, 1999
(All 143,000 $1.80 (Cdn.) Amended on March 8, 2001
cancelled on March 8, 1996 Cancelled
08/04/94)
Number of
Outstanding Date of
Optionee Options (1) Option Price Agreement Expiry Date
-------- ----------- ------------ --------- -----------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (TSE) CANCELLED $3.00 (Cdn.) January 24, 1994 January 24, 1999
(All 20,000 CANCELLED
cancelled on
31/12/96)
▇▇ ▇▇▇▇ (▇▇▇) CANCELLED $2.89 (Cdn.) February 21, 1994 February 21, 1999
(All 65,000 CANCELLED
cancelled on
31/12/95)
▇▇▇▇ ▇▇▇▇▇▇▇▇ (TSE) CANCELLED $2.89 (Cdn.) February 21, 1994 February 21, 1999
(All 12,000 CANCELLED
cancelled on
31/12/97)
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇) CANCELLED $2.89 (Cdn.) February 21, 1994 February 21, 1999
(All 30,000 CANCELLED
cancelled on
21/02/99)
▇▇▇▇ ▇▇▇▇▇ (TSE) 15,000 $2.89 (Cdn.) February 21, 1994 February 21, 1999
▇▇▇▇ ▇▇▇▇▇▇ (TSE) CANCELLED $2.89 (Cdn.) February 21, 1994 February 21, 1999
(All 10,000 CANCELLED
cancelled on
01/07/95)
▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) CANCELLED $2.89 (Cdn.) February 21, 1994 February 21, 1999
(All 118,000 CANCELLED
cancelled on
31/05/97)
▇▇▇▇▇ ▇▇▇▇▇ (TSE) 143,000 $3.10 (Cdn.) April 8, 1994 April 8, 1999
$1.85 (Cdn.) Amended on ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇ 8, 1996
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) CANCELLED $3.40 (Cdn.) May 17, 1994 May 17, 1999
(All 30,000 CANCELLED
cancelled on
30/11/95)
▇▇▇▇ ▇▇▇▇▇▇▇ (TSE) 12,000 $3.50 (Cdn.) June 27, 1994 June 27, 1999
Barclays Bank PLC (TSE) 10,000 $3.00 (U.S.) June 1, 1995 June 1, 2000
▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇) NIL $1.20 (Cdn.) December 13, 1995 Dec. 13, 1997
(All 42,500 EXERCISED
exercised on
14/01/98)
▇▇▇▇▇ ▇▇▇▇▇ (TSE) CANCELLED $1.80 (Cdn.) March 8, 1996 March 8, 2001
(All 155,000 CANCELLED
cancelled on
31/05/97)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇) CANCELLED $1.80 (Cdn.) March 8, 1996 March 8, 2001
(All 5,000 CANCELLED
cancelled on
30/09/97)
▇▇▇▇▇▇▇ ▇▇▇▇▇ (TSE) 5,000 $1.80 (Cdn.) ▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇ 8, 2001
Number of
Outstanding Date of
Optionee Options (1) Option Price Agreement Expiry Date
-------- ----------- ------------ --------- -----------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇▇▇) 300,000 $1.80 (Cdn.) March 8, 1996 March 8, 2001
▇▇▇▇ ▇▇▇▇▇▇ (TSE) 50,000 $1.80 (Cdn.) March 8, 1996 March 8, 2001
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (▇▇▇) 300,000 $1.80 (Cdn.) March 8, 1996 March 8, 2001
▇▇▇▇▇▇ ▇. de CANCELLED $1.80 (Cdn.) March 8, 1006 March 8, 2001
▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇) (All 125,000 CANCELLED
cancelled on
28/04/98)
▇▇▇▇ ▇▇▇▇▇▇▇ (TSE) 25,000 $1.80 (Cdn.) March 8, 1996 March 8, 2001
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇) 35,000 $1.80 (Cdn.) March 8, 1996 March 8, 2001
▇▇▇▇ ▇▇▇▇ (TSE) CANCELLED $1.80 (Cdn.) March 8, 1996 March 8, 2001
(All 5,000 CANCELLED
cancelled on
31/12/97)
▇▇. ▇▇▇ ▇. ▇▇▇▇ (▇▇▇) 100,000 $1.90 (Cdn.) Sept. 4, 1996 Sept. 4, 2001
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (TSE) 30,000 $1.95 (Cdn.) Jan. 15, 1997 Jan. 15, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) 100,000 $2.32 (Cdn.) Feb. 3, 1997 Feb. 3, 2002
▇▇. ▇▇▇▇▇ Ine Lu (TSE) 100,000 $2.65 (Cdn.) Feb. 21, 1997 Feb. 21, 2002
▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) 50,000 $1.87 (Cdn.) May 21, 1997 May 21, 2002
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (TSE) 45,000 $1.87 (Cdn.) May 21, 1997 May 21, 2002
▇▇. ▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) 100,000 $1.95 (Cdn.) June 27, 1997 June 27, 2002
A. ▇▇▇ ▇▇▇▇▇▇ (TSE) CANCELLED $1.95 (Cdn.) June 27, 1997 June 27, 2002
(All 40,000 CANCELLED
cancelled on
01/04/98)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (▇▇▇) 25,000 $1.40 (Cdn.) October 30, 1997 October 30, 2002
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (TSE) 50,000 $1.19 (Cdn.) December 9, 1997 December 9, 2000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (▇▇▇) 5,000 $1.70 (Cdn.) Dec. 10, 1997 Dec. 10, 2002
▇▇▇▇ ▇. Modesto (TSE) 13,000 $1.70 (Cdn.) Dec. 10, 1997 Dec. 10, 2002
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇) 30,000 $1.80 (Cdn.) Jan. 21, 1998 Jan. 21, 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (TSE) 30,000 $1.95 (Cdn.) Jan. 28, 1998 Jan. 28, 2001
Number of
Outstanding Date of
Optionee Options (1) Option Price Agreement Expiry Date
-------- ----------- ------------ --------- -----------
Wall Street 84,000 $1.20 (U.S.) May 4, 1998 May 4, 2003
Consultants, Inc. (TSE)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (▇▇▇) 15,000 $1.50 (Cdn.) May 7, 1998 May 7, 2003
▇▇▇▇ ▇. Modesto (TSE) 30,000 $0.80 (Cdn.) July 13, 1998 July 13, 2003
▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) 50,000 $0.70 (Cdn.) October 23, 1998 October 23, 2003
▇▇. ▇▇▇ ▇. ▇▇▇▇ (TSE) 50,000 $0.70 (Cdn.) October 23, 1998 October 23, 2003
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇▇▇) 50,000 $0.70 (Cdn.) October 23, 1998 October 23, 2003
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (TSE) 25,000 $0.70 (Cdn.) October 23, 1998 October 23, 2003
▇▇▇▇ ▇. Modesto (TSE) 20,000 $0.70 (Cdn.) October 23, 1998 October 23, 2003
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (▇▇▇) 5,000 $0.70 (Cdn.) October 23, 1998 October 23, 2003
Princeton Research, Inc. 250,000 50,000 @ $1.00 October 29, 1998 Dec. 31, 2000
(TSE) 50,000 @ $1.25
50,000 @ $1.50
100,000 @ $1.75
(All U.S. $)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (▇▇▇) 50,000 $0.55 (U.S.) Nov. 25, 1998 Nov. 25, 2003
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 200,000 $0.80 (Cdn.) February 22, 1999 February 22, 2004
(TSE) (2)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 200,000 $0.80 (Cdn.) February 22, 1999 February 22, 2004
(TSE) (2)
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 30,000 $0.80 (Cdn.) February 22, 1999 February 22, 2004
(TSE) (2)
Total Options
Outstanding 2,989,500
---------
(1) Exercise and cancellation dates noted as day/month/year.
(2) Subject to prior TSE review and, if necessary, approval.
SUMMARY OF SHARES AND OPTIONS ISSUED OR ISSUABLE
UNDER THE COMPANY'S STOCK OPTON PLAN
SHARES ISSUABLE UNDER OPTONS UNDER THE PLAN 5,102,545
SHARES ALREADY ISSUED UPON OPTION EXERCISES UNDER THE PLAN 1,457,500
STOCK OPTIONS TO ACQUIRE SHARES EXISTING UNDER THE PLAN 2,989,500
STOCK OPTIONS TO ACQUIRE SHARES AVAILABLE UNDER THE PLAN 655,545
EXHIBIT D
AMPI SHARES RESERVED
NONE
----
EXHIBIT E
AMPI LITIGATION
NONE
----
EXHIBIT F
AMPI TAX RETURNS NOT FILED
1998 IRS FORM 1120
------------------
EXHIBIT G
AMPI CONTRACTS:
1. Mobile Mini, Inc. for a 40' Storage Trailer
2. Mobile Mini, Inc. for a 40' Office Trailer
MOBILE MINI, INC.
Mobile Mini, Inc. Mobile Mini, Inc. OFF-SITE RENTAL AGREEMENT
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Branch Location 4010 Signature Page 01-09578
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ I-10 and ▇▇▇▇ ▇▇▇▇▇▇
Phone (▇▇▇) ▇▇▇-▇▇▇▇ CITY: Phoenix, AZ Customer: Arizona Mica
COUNTY: Maricopa, AZ Prices and Terms Document: 12:388
Phone (▇▇▇) ▇▇▇-▇▇▇▇
Transaction and Acceptance No:
TERMS: NET 10 DAYS
Minimum Lease Period 1 mo per billing cycle
Late Payment or Dishonored Check Charges $15.00 each
Return Charge Minimum $90.00 each
Plus $200 per one-way 25 mi.
On-Site Time Allowance: 1 hour
Extra Time at Standby Charge: $48 per hr.
Services or Transfer Charge $40 per hr.
CREDIT & INSURANCE INFORMATION - REQUIRED BEFORE DELIVERY
Not Required x Flat Agreement by Credit Card
--- --
Individual or Officer:
Title:
Home Address:
City: State: Zip:
SS No.:
Banking Reference: Bank:
Branch: Account No.:
Person to Contact: Phone No:
Certificate of Insurance Required: Yes x No
----- -
WHEN SCHEDULING A PICKUP-DATE, OWNER REQUIRES TEN WORKING DAYS NOTICE.
Delivery Terms: NET 10
Customer stores goods at his own and exclusive risk and assumes all liability
for damages resulting therein.
Mobile Mini, Inc. does not provide insurance for Customer's stored property.
Customer will provide his own insurance coverage or accurate self-insurance and
the associated risks.
Customer specifically acknowledges and accepts the statutory regulations set
forth in those mini storage statutes acts and/or legislation in effect in the
jurisdiction and states in which the container is stored or located.
Customer acknowledges that the driver has informed customer as to the use of the
lockout system(s), discus lock and door operation. Customer also acknowledges
that the driver has leveled the container, conducted a light check for possible
water leaks and informed customer as to the importance of weekly visual
inspections.
Customer releases any and all claims against Mobile Mini, Inc., its
subsidiaries, parent company, agents and/or employees related to the storage
contract and contents contained within said rented or leased containers.
I ACKNOWLEDGE THAT I HAVE READ AND APPROVE THE ABOVE INFORMATION AND I HAVE BEEN
GIVEN A BROCHURE WHICH EXPLAINS THE CUSTOMER STORAGE INSURANCE THAT IS AVAILABLE
TO ME. I SPECIFICALLY ACKNOWLEDGE THAT I HAVE EITHER OBTAINED INSURANCE OR
ACCEPT THE RESPONSIBILITY OF BEING SELF-INSURED.
MAXIMUM CONTENTS VALUE LIMITATION PER CONTAINER:
8'x6' - $1840 8'x10' - $1,280 8'x20' - $2,560 8'x40' - $3,200
DOCUMENTS AND OTHER ITEMS ATTACHED TO THIS SIGNATURE PAGE, RECEIPT OF WHICH IS
HEREBY ACKNOWLEDGED BY CUSTOMER:
Terms and Conditions:
Insurance Brochure(s) showing independent insurance source(s).
Insurance, Liens, Auction and other important notices.
Helpful Hints and Salary Warning
CHATTEL PAPER FINANCING NOTICE. THIS CHATTEL PAPER IS SUBJECT TO A PRIOR
SECURITY INTEREST PERFECTED BY THE FILING OF A UNIFORM COMMERCIAL CODE FINANCING
STATEMENT. NO SECURITY OR OWNERSHIP INTEREST MAY BE PERFECTED HEREIN BY
POSSESSION OF THIS CHATTEL PAPER UNDER UCC SECTION 0308 OR OTHERWISE.
CONTRACTUAL LIENS AND OTHER NOTICES: THIS AGREEMENT CONTAINS WAIVERS, RELEASES,
EXCULPATION CLAUSES, LIMITATIONS OF DAMAGES, INDEMNITY AGREEMENTS, GRANTING OF
LIENS OR CUSTOMER'S PROPERTY CONTAINED IN OR ON THE EQUIPMENT AND GRANTS OF
ACCESS IN PARAGRAPHS 8, 9, 12, 13, 18, 19, 20 AND 24 AND ELSEWHERE IN THE TERMS
AND CONDITIONS OF THIS AGREEMENT ATTACHED HERETO OR PROVIDED HEREWITH TO THIS
SIGNATURE PAGE WHICH HAVE WARRANTIES AND SHIFT RISK OF LOSS FOR THE NEGLIGENCE
OF COMPANY AND ITS AGENTS AND EMPLOYEES TO CUSTOMER, AND CUSTOMER SHOULD READ
AND CONSIDER THESE PROVISIONS CAREFULLY. IN ADDITION TO OTHER PROVISIONS, THIS
AGREEMENT PROHIBITS ANY ASSIGNMENT OF THE AGREEMENT BY CUSTOMER OR ANY SUBLEASE
OF EQUIPMENT BY CUSTOMER AND PROVIDES THAT CUSTOMER HAS FULLY INSPECTED THE
EQUIPMENT AND IS SATISFIED WITH THE EQUIPMENT FOR THE USE INTENDED BY CUSTOMER
AS PROVIDED RESPECTIVELY BY PARAGRAPHS 14 AND 25 OF THE TERMS AND CONDITIONS OF
THIS AGREEMENT. THE CUSTOMER EXPRESSLY REPRESENTS THAT THE GOODS LEASED HEREIN
ARE NOT INTENDED FOR PERSONAL, FAMILY OR HOUSEHOLD USE. IN ADDITION, SEE NOTICE
SECTION ATTACHED OR PROVIDED HEREWITH FOR ANY SPECIAL NOTICES OR WARNINGS, IF
ANY ARE REQUIRED, BY THE STATE JURISDICTION AND VENUE.
AGREEMENT: This Agreement is subject to the information and representations of
the RENTAL AGREEMENT provided herewith, any document attached hereto or provided
herewith, and to the TERMS AND CONDITIONS provided or attached herewith, all of
which constitute this complete OFF-SITE RENTAL AGREEMENT (hereinafter "this
Agreement"). The person signing (or the Customer representing and warranting)
has the ability to execute this Agreement. This Agreement will not be considered
to be binding and finalized unless signed and accepted by a registered agent of
Company. Terms and Conditions may be changed by written approval of Company
officers. This Agreement creates legally enforceable rights for and on Customer
and Company urges Customer to fully review all provisions herein prior to
execution, and Customer acknowledges that he has been specifically required to
do so. Should Customer be unable to execute any provision herein, it is strongly
recommended that Customer contact an attorney for assistance. Customer hereby
acknowledges to being provided with a copy of this Agreement and further
acknowledges by executing that he has been given full opportunity to and has
read and understood all provisions herein. SEE OTHER NOTICES AS LISTED, ATTACHED
OR PROVIDED IN OFF-SITE STORAGE PACKAGE ATTACHED HEREWITH.
COMPANY APPROVAL: MOBILE MINI, INC. CUSTOMER APPROVAL:
By: X /s/ By: /s/ ▇▇▇▇ ▇▇▇
----- --- ----------------
Title: Date:
MOBILE MINI, INC.
Mobile Mini, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Page 3
Date PRICES & TERMS DOCUMENT DOCUMENT NO
12-30-98 OF 101 121388
▇▇▇▇ to: 49690 Ship to:
ARIZONA MICA ARIZONA MICA
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
GLENDALE/EL MIRAGE
Phone: ▇▇▇-▇▇▇-▇▇▇▇
TERMS: Cash S1smn: 213 P.O. No. ▇▇▇▇ ▇▇▇▇
Rental Begins: 12-30-98 For term of 12 Months Est Return 12-29-99
SERIALIZED UNIT or ITEM QUANTITY TAX PRICE RATE
YES NO ON-SITE
PICKUP CONFIRMATION NUMBER. When the equipment is called in for pickup, the
customer must get a pickup confirmation number from Mobile Mini to avoid
additional rental charges. Rental charges apply for the earlier of 5 days after
pickup request, or actual pickup date. ACCEPTANCE: This equipment was received
clean and in good condition; or noted as above, normal wear excepted, all
according to the terms and conditions of the EQUIPMENT RENTAL AGREEMENT.
AGREEMENT: This agreement is subject to the information and representations in
the RENTAL AGREEMENT provided herewith, any document attached hereto or provided
herewith, and to the TERMS AND CONDITIONS provided or attached herewith, all of
which constitute this complete AGREEMENT (hereinafter "this Agreement").
SIGNATURE /s/ ▇▇▇▇ ▇▇▇
------------
NAME/TITLE ▇▇▇▇ ▇▇▇, Sec/Treas
-------------------
Total Rentals 162.00
Tax 11.02
Total 173.02
**THIS IS NOT AN INVOICE**
MOBILE MINI, INC.
Mobile Mini, Inc. Mobile Mini, Inc. OFF-SITE RENTAL AGREEMENT
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Branch Location 4010 Signature Page 01-09579
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ I-10 and ▇▇▇▇ ▇▇▇▇▇▇
Phone (▇▇▇) ▇▇▇-▇▇▇▇ CITY: Phoenix, AZ Customer: Arizona Mica
COUNTY: Maricopa, AZ Prices and Terms Document: 12:390
Phone (▇▇▇) ▇▇▇-▇▇▇▇
Transaction and Acceptance No:
TERMS: NET 10 DAYS
Minimum Lease Period 1 mo per billing cycle
Late Payment or Dishonored Check Charges $15.00 each
Return Charge Minimum $115.00 each
Plus $300 per one-way 25 mi.
On-Site Time Allowance: 1 hour
Extra Time at Standby Charge: $48 per hr.
Services or Transfer Charge $40 per hr.
CREDIT & INSURANCE INFORMATION - REQUIRED BEFORE DELIVERY
Not Required x Flat Agreement by Credit Card
--
Individual or Officer:
Title:
Home Address:
City: State: Zip:
SS No.:
Banking Reference: Bank:
Branch: Account No.:
Person to Contact: Phone No:
Certificate of Insurance Required: Yes x No
----- --
WHEN SCHEDULING A PICKUP-DATE, OWNER REQUIRES TEN WORKING DAYS
NOTICE.
Delivery Terms: NET 10
Customer stores goods at his own and exclusive risk and assumes all liability
for damages resulting therein.
Mobile Mini, Inc. does not provide insurance for Customer's stored property.
Customer will provide his own insurance coverage or accurate self-insurance and
the associated risks.
Customer specifically acknowledges and accepts the statutory regulations set
forth in those mini storage statutes acts and/or legislation in effect in the
jurisdiction and states in which the container is stored or located.
Customer acknowledges that the driver has informed customer as to the use of the
lockout system(s), discus lock and door operation. Customer also acknowledges
that the driver has leveled the container, conducted a light check for possible
water leaks and informed customer as to the importance of weekly visual
inspections.
Customer releases any and all claims against Mobile Mini, Inc., its
subsidiaries, parent company, agents and/or employees related to the storage
contract and contents contained within said rented or leased containers.
I ACKNOWLEDGE THAT I HAVE READ AND APPROVE THE ABOVE INFORMATION AND I HAVE BEEN
GIVEN A BROCHURE WHICH EXPLAINS THE CUSTOMER STORAGE INSURANCE THAT IS AVAILABLE
TO ME. I SPECIFICALLY ACKNOWLEDGE THAT I HAVE EITHER OBTAINED INSURANCE OR
ACCEPT THE RESPONSIBILITY OF BEING SELF-INSURED.
MAXIMUM CONTENTS VALUE LIMITATION PER CONTAINER:
8'x6' - $1840 8'x10' - $1,280 8'x20' - $2,560 8'x40' - $3,200
DOCUMENTS AND OTHER ITEMS ATTACHED TO THIS SIGNATURE PAGE, RECEIPT OF WHICH IS
HEREBY ACKNOWLEDGED BY CUSTOMER:
Terms and Conditions:
Insurance Brochure(s) showing independent insurance source(s).
Insurance, Liens, Auction and other important notices.
Helpful Hints and Salary Warning
CHATTEL PAPER FINANCING NOTICE. THIS CHATTEL PAPER IS SUBJECT TO A PRIOR
SECURITY INTEREST PERFECTED BY THE FILING OF A UNIFORM COMMERCIAL CODE FINANCING
STATEMENT. NO SECURITY OR OWNERSHIP INTEREST MAY BE PERFECTED HEREIN BY
POSSESSION OF THIS CHATTEL PAPER UNDER UCC SECTION 0308 OR OTHERWISE.
CONTRACTUAL LIENS AND OTHER NOTICES: THIS AGREEMENT CONTAINS WAIVERS, RELEASES,
EXCULPATION CLAUSES, LIMITATIONS OF DAMAGES, INDEMNITY AGREEMENTS, GRANTING OF
LIENS OR CUSTOMER'S PROPERTY CONTAINED IN OR ON THE EQUIPMENT AND GRANTS OF
ACCESS IN PARAGRAPHS 8, 9, 12, 13, 18, 19, 20 AND 24 AND ELSEWHERE IN THE TERMS
AND CONDITIONS OF THIS AGREEMENT ATTACHED HERETO OR PROVIDED HEREWITH TO THIS
SIGNATURE PAGE WHICH HAVE WARRANTIES AND SHIFT RISK OF LOSS FOR THE NEGLIGENCE
OF COMPANY AND ITS AGENTS AND EMPLOYEES TO CUSTOMER, AND CUSTOMER SHOULD READ
AND CONSIDER THESE PROVISIONS CAREFULLY. IN ADDITION TO OTHER PROVISIONS, THIS
AGREEMENT PROHIBITS ANY ASSIGNMENT OF THE AGREEMENT BY CUSTOMER OR ANY SUBLEASE
OF EQUIPMENT BY CUSTOMER AND PROVIDES THAT CUSTOMER HAS FULLY INSPECTED THE
EQUIPMENT AND IS SATISFIED WITH THE EQUIPMENT FOR THE USE INTENDED BY CUSTOMER
AS PROVIDED RESPECTIVELY BY PARAGRAPHS 14 AND 25 OF THE TERMS AND CONDITIONS OF
THIS AGREEMENT. THE CUSTOMER EXPRESSLY REPRESENTS THAT THE GOODS LEASED HEREIN
ARE NOT INTENDED FOR PERSONAL, FAMILY OR HOUSEHOLD USE. IN ADDITION, SEE NOTICE
SECTION ATTACHED OR PROVIDED HEREWITH FOR ANY SPECIAL NOTICES OR WARNINGS, IF
ANY ARE REQUIRED, BY THE STATE JURISDICTION AND VENUE.
AGREEMENT: This Agreement is subject to the information and representations of
the RENTAL AGREEMENT provided herewith, any document attached hereto or provided
herewith, and to the TERMS AND CONDITIONS provided or attached herewith, all of
which constitute this complete OFF-SITE RENTAL AGREEMENT (hereinafter "this
Agreement"). The person signing (or the Customer representing and warranting)
has the ability to execute this Agreement. This Agreement will not be considered
to be binding and finalized unless signed and accepted by a registered agent of
Company. Terms and Conditions may be changed by written approval of Company
officers. This Agreement creates legally enforceable rights for and on Customer
and Company urges Customer to fully review all provisions herein prior to
execution, and Customer acknowledges that he has been specifically required to
do so. Should Customer be unable to execute any provision herein, it is strongly
recommended that Customer contact an attorney for assistance. Customer hereby
acknowledges to being provided with a copy of this Agreement and further
acknowledges by executing that he has been given full opportunity to and has
read and understood all provisions herein. SEE OTHER NOTICES AS LISTED, ATTACHED
OR PROVIDED IN OFF-SITE STORAGE PACKAGE ATTACHED HEREWITH.
COMPANY APPROVAL: MOBILE MINI, INC. CUSTOMER APPROVAL:
By: X /s/ By: /s/
----- --- -------
Title: Date:
Mobile Mini, Inc. Risk Management
MOBILE MINI, INC.
SITE CONDITIONS AND RELEASE
Customer hereby requests and invites the Owner to enter upon the area of the
Equipment location for the purpose of delivering and picking up the Equipment.
Customer represents and warrants that he has surveyed and inspected the
Equipment location site and the access thereto and has conclusively deemed that
the delivery vehicle and equipment employed by Owner can enter and operate
safely and effectively to deliver, pick up and relocate Equipment. Customer
agrees that the on-site delivery, pick-up, loading, unloading or relocating will
be under the direction, instruction and control of the Customer and his agents
or representatives. Customer hereby releases and agrees to hold Owner harmless
from any and all claims for damages, costs, claims or liabilities, both direct
and indirect, to the roadways, grounds, buildings, and personal property in or
around the Equipment location, or for any other claim directly or indirectly
associated with the delivery, pickup or relocation of the Equipment.
I.e., Customer agrees to pay any and all towing charges and/or site damage
resulting from any attempted delivery, pickup or relocation.
/s/ ▇▇▇▇ ▇▇▇ 12/30/98
------------ --------
Customer
MOBILE MINI, INC.
Mobile Mini, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Page 3
Date PRICES & TERMS DOCUMENT DOCUMENT NO
12-30-98 OF 101 121390
▇▇▇▇ to: 49690 Ship to:
ARIZONA MICA ARIZONA MICA
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
GLENDALE/EL MIRAGE
Phone: ▇▇▇-▇▇▇-▇▇▇▇
TERMS: A S1smn: 213 P.O. No. ▇▇▇▇ ▇▇▇▇
Rental Begins: 12-30-98 For term of 12 Months Est Return 12-01-99
SERIALIZED UNIT or ITEM QUANTITY TAX PRICE RATE
YES NO ON-SITE
PICKUP CONFIRMATION NUMBER. When the equipment is called in for pickup, the
customer must get a pickup confirmation number from Mobile Mini to avoid
additional rental charges. Rental charges apply for the earlier of 5 days after
pickup request, or actual pickup date. ACCEPTANCE: This equipment was received
clean and in good condition; or noted as above, normal wear excepted, all
according to the terms and conditions of the EQUIPMENT RENTAL AGREEMENT.
AGREEMENT: This agreement is subject to the information and representations in
the RENTAL AGREEMENT provided herewith, any document attached hereto or provided
herewith, and to the TERMS AND CONDITIONS provided or attached herewith, all of
which constitute this complete AGREEMENT (hereinafter "this Agreement").
SIGNATURE /s/ ▇▇▇▇ ▇▇▇
------------
NAME/TITLE ▇▇▇▇ ▇▇▇, Sec/Treas
Total Rentals 305.00
Tax 20.75
Total 325.75
MOBILE MINI, INC.
Mobile Mini, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Page 1
Date PRICES & TERMS DOCUMENT DOCUMENT NO
12-30-98 OF 101 121388
▇▇▇▇ to: 49690 Ship to:
ARIZONA MICA ARIZONA MICA
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
GLENDALE/EL MIRAGE
Phone: ▇▇▇-▇▇▇-▇▇▇▇
TERMS: Cash S1smn: 213 P.O. No. ▇▇▇▇ ▇▇▇▇
Rental Begins: 12-30-98 For term of 12 Months Est Return 12-29-99
2RP LEASE TO LEASE
OF 01 09578 FORMERLY AMERICAN MINERAL
SERIALIZED UNIT or ITEM QUANTITY TAX PRICE RATE
Rental Model 40S 1 01GL 145.00 Period
40' STANDARD
MAXIMUM WEIGHT-20,000#
MAXIMUM CONTENTS VALUE
$5,120 CONTAINER
REPLACEMENT COST $6,000
Rental TAXS3640 1 01GL 6.00 Period
PROP TAX
Rental LLW 1 01GL 14.00 Period
LOSS LIMITATION 1 WAIVER
LEASE TO LEASE/DELIVERY & PICKUP ALREADY PAID
-CONTINUED ON NEXT PAGE-
EXHIBIT H
AMPI REAL PROPERTY AND AMPI MINING CLAIMS
EXHIBIT "H"
UNPATENTED MINING CLAIMS
43 Unpatented Lode Mining Claims situated in an Unknown Mining District in
Yavapai County, State of Arizona, more particularly described as follows:
Yavapai Yavapai Yavapai Yavapai
Locator/ Claim Location County Rec. County Rec. County Rec. BLM Filing
Owner Name Date Inst. No. Book & Pg. Date Date AMC No.
----- ---- ---- --------- ---------- ---- ---- -------
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #1 2/16/99 3123719 3642/411 2/26/99 2/25/99 351306
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #2 2/17/99 3123720 3642/412 2/26/99 2/25/99 351307
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #3 2/16/99 3123721 3642/413 2/26/99 2/25/99 351308
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #4 2/17/99 3123722 3642/414 2/26/99 2/25/99 351309
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #5 2/17/99 3123723 3642/415 2/26/99 2/25/99 351310
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #6 2/16/99 3123724 3642/416 2/26/99 2/25/99 351311
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #7 2/16/99 3123725 3642/417 2/26/99 2/25/99 351312
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #8 2/16/99 3123726 3642/418 2/26/99 2/25/99 351313
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #9 2/17/99 3123727 3642/419 2/26/99 2/25/99 351314
EXHIBIT "H" CONTINUED
Yavapai Yavapai Yavapai Yavapai
Locator/ Claim Location County Rec. County Rec. County Rec. BLM Filing
Owner Name Date Inst. No. Book & Pg. Date Date AMC No.
----- ---- ---- --------- ---------- ---- ---- -------
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #10 2/16/99 3123728 3642/420 2/26/99 2/25/99 351315
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #11 2/18/99 3123729 3642/421 2/26/99 2/25/99 351316
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #12 2/18/99 3123730 3642/422 2/26/99 2/25/99 351317
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #13 2/18/99 3123731 3642/423 2/26/99 2/25/99 351318
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #14 2/18/99 3123732 3642/424 2/26/99 2/25/99 351319
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #15 2/16/99 3123733 3642/425 2/26/99 2/25/99 351320
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #16 2/16/99 3123734 3642/426 2/26/99 2/25/99 351321
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #17 2/17/99 3123735 3642/427 2/26/99 2/25/99 351322
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #18 2/19/99 3123736 3642/428 2/26/99 2/25/99 351323
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #19 2/19/99 3123737 3642/429 2/26/99 2/25/99 351324
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #20 2/19/99 3123738 3642/430 2/26/99 2/25/99 351325
EXHIBIT "H" CONTINUED
Yavapai Yavapai Yavapai Yavapai
Locator/ Claim Location County Rec. County Rec. County Rec. BLM Filing
Owner Name Date Inst. No. Book & Pg. Date Date AMC No.
----- ---- ---- --------- ---------- ---- ---- -------
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #21 2/19/99 3123739 3642/431 2/26/99 2/25/99 351326
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #22 2/19/99 3123740 3642/432 2/26/99 2/25/99 351327
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #23 2/19/99 3123741 3642/433 2/26/99 2/25/99 351328
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #24 2/18/99 3123742 3642/434 2/26/99 2/25/99 351329
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #25 2/18/99 3123743 3642/435 2/26/99 2/25/99 351330
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #26 2/18/99 3123744 3642/436 2/26/99 2/25/99 351331
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #27 2/18/99 3123745 3642/437 2/26/99 2/25/99 351332
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #28 2/19/99 3123746 3642/438 2/26/99 2/25/99 351333
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #29 2/19/99 3123747 3642/439 2/26/99 2/25/99 351334
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #30 2/16/99 3123748 3642/440 2/26/99 2/25/99 351335
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #31 2/16/99 3123749 3642/441 2/26/99 2/25/99 351336
EXHIBIT "H" CONTINUED
Yavapai Yavapai Yavapai Yavapai
Locator/ Claim Location County Rec. County Rec. County Rec. BLM Filing
Owner Name Date Inst. No. Book & Pg. Date Date AMC No.
----- ---- ---- --------- ---------- ---- ---- -------
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #32 2/16/99 3123750 3642/442 2/26/99 2/25/99 351337
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #33 2/16/99 3123751 3642/443 2/26/99 2/25/99 351338
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #34 2/17/99 3123752 3642/444 2/26/99 2/25/99 351339
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #35 2/17/99 3123753 3642/445 2/26/99 2/25/99 351340
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #36 2/17/99 3123754 3642/446 2/26/99 2/25/99 351341
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #37 2/17/99 3123755 3642/447 2/26/99 2/25/99 351342
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #38 2/17/99 3123756 3642/448 2/26/99 2/25/99 351343
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #39 2/17/99 3123757 3642/449 2/26/99 2/25/99 351344
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #40 2/17/99 3123758 3642/450 2/26/99 2/25/99 351345
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #41 2/19/99 3123759 3642/451 2/26/99 2/25/99 351346
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #42 2/19/99 3123760 3642/452 2/26/99 2/25/99 351347
EXHIBIT "H" CONTINUED
Yavapai Yavapai Yavapai Yavapai
Locator/ Claim Location County Rec. County Rec. County Rec. BLM Filing
Owner Name Date Inst. No. Book & Pg. Date Date AMC No.
----- ---- ---- --------- ---------- ---- ---- -------
Arizona Mica
Properties, Inc. ▇▇▇▇▇▇▇ #43 2/19/99 3123761 3642/453 2/26/99 2/25/99 351348
EXHIBIT I
AMPI PERSONAL PROPERTY
AMPI PERSONAL PROPERTY
Item Manufacturer Model Serial No.
---- ------------ ----- ----------
1. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇/Piper Special Lab PL9M-1-32-7906
2. Plate Filter Gemstone 12" 161
3. Screen Sweco 18" 2360
4. Hydraulic Press Ramco RH50 1815
5. Hydraulic Lift Ramco RH5000 2145
6. Grinder Amprox 7500A 97023271
7. Band Saw Milwaukee 350 678C497470292
8. Cut Off Saw Milwaukee 14" 98032326
9. Vise 6"
10. Phase Converter Lewus T-Series
11. Scale Ohaus Cadet
12. Vacuum Filter Air Cadet Lab
13. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇"
▇▇. ▇▇▇▇▇▇ Homemade 8"
15. Ore Bin Homemade 15 ton
16. Ore Bin Homemade 10' x 23'
17. Ore Bin Homemade 10' x 23'
18. Steel Table Homemade 4' x 8'
19. Steel Table Homemade 4' x 8'
20. Glassware Miscellaneous
21. Chemicals Miscellaneous
22. Fabrication Materials Miscellaneous
EXHIBIT J
SIMI COUNSEL'S OPINION
Law Office of
▇▇▇▇ & ▇▇▇▇, P.C.
Attoneys At Law
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone (▇▇▇) ▇▇▇-▇▇▇▇ E-Mail
Fax (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
March 9, 1999
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Arizona Mica Properties, Inc.
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: ▇▇▇▇▇▇▇ Mining Inc.
Opinion of Counsel
Dear ▇▇. ▇▇▇▇▇:
We have acted as counsel for ▇▇▇▇▇▇▇ Mining Inc. ("▇▇▇▇▇▇▇") in connection
with the execution, delivery and performance by ▇▇▇▇▇▇▇ of the Agreement and
Plan of Merger (the "Agreement") dated March 9, 1999, by and among ▇▇▇▇▇▇▇, Azco
Mining Inc., Arizona Mica Properties, Inc. and the shareholders of Arizona Mica
Properties, Inc. As counsel for ▇▇▇▇▇▇▇, we have examined the Agreement,
corporate and other documents of ▇▇▇▇▇▇▇, and have satisfied ourselves as to any
other matters we deemed necessary for the opinions set out below.
In our examinations. we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
the originals of all documents submitted to us as certified, photostatic, or
conformed copies, and the authenticity of the originals of all such latter
documents.
Based on the foregoing and subject to the limitations set forth below, we
are of the opinion that:
1. ▇▇▇▇▇▇▇ is a corporation duly organized. validly existing, and under and
by virtue of the laws of the State of Delaware.
2. ▇▇▇▇▇▇▇ has taken all necessary corporate action to authorize the
execution, delivery and performance of the Agreement.
3. ▇▇▇▇▇▇▇ has ▇▇▇▇▇▇ all corporate and other action necessary to authorize
it to carry out the Agreement, and the Agreement is a valid and binding
obligation of ▇▇▇▇▇▇▇ in accordance
with its terms, subject to the laws of general application affecting the rights
and remedies of creditors and subject to the availability of equitable remedies.
This opinion is limited to the present laws of the State of Colorado, the
Delaware General Corporation Law and the federal laws of the United States of
America, including present judicial interpretations thereof. We express no
opinion with respect to the laws of any other jurisdiction. We assume no
obligation to revise or supplement this opinion should the present laws of the
jurisdictions mentioned herein be changed by legislative action, judicial
decision or otherwise.
This opinion is furnished by us as counsel to ▇▇▇▇▇▇▇ and is solely for
the benefit of the addressee hereof in connection with the transactions
described in the Agreement and maynot be relied upon by any other person or for
any other reason.
Sincerely,
LAW OFFICE OF ▇▇▇▇ & ▇▇▇▇, P.C.
EXHIBIT K
AMPI COUNSEL'S OPINION
▇▇▇▇▇ & ▇▇▇▇▇▇
Professional Limited Liability Company
Attorneys at Law
▇▇▇▇▇ ▇▇▇▇▇▇, P.C.* ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., P.C. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
*Certifled Specialist - Taxation Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Arizona Board of Legal Specialization Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail ▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
March 9, 1999
▇▇▇▇▇▇▇ Mining Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Arizona Mica Properties, Inc.
Opinion of Counsel
Dear Gentlemen:
This opinion letter is being provided to ▇▇▇▇▇▇▇ Mining Inc. pursuant to
Section 8.2 of the Agreement and Plan of Merger of Arizona Mica Properties,
Inc., an Arizona corporation, into ▇▇▇▇▇▇▇ Mining Inc., a Delaware corporation
(the "Agreement"). As counsel for Arizona Mica Properties, Inc., we have
examined the Agreement, corporate and other documents of ▇▇▇▇▇▇▇, and have
satisfied ourselves as to any other matters we deemed necessary for the opinions
set out below.
In our examinations, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to the originals of all documents submitted to us as certified, photostatic, or
conformed copies, and the authenticity of the originals of all such latter
documents.
This letter is a condition of the Agreement and Plan of Merger and contains
my opinion with respect to the following matters:
1. AMPI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Arizona. AMPI has full power and
authority to carry on the business in which it is engaged and to own and use the
properties owned by it.
2. AMPI's authorized capital stock consists of 10,000 shares of capital
stock of no par value Common Stock, of which 3,000 shares are issued and
outstanding. All issued and outstanding shares of AMPI have been duly authorized
and validly issued, fully paid, nonassessable and have been issued in full
compliance with the preemptive rights of any existing shareholders and in full
compliance with all applicable federal and state securities laws. To counsel's
knowledge, no shares of AMPI's capital stock have been reserved for issuance for
any purposes, and there are no outstanding rights subscriptions, warrants,
options, conversion
▇▇▇▇▇▇▇ Mining, Inc.
March 9, 1999
Page Two
rights, commitments or agreements of any kind outstanding to purchase or
otherwise acquire from AMPI, or to cause AMPI to issue or purchase, any shares
of its capital stock, or securities or obligations of any kind convertible into,
exchangeable for, or evidencing the right to acquire any shares of capital
stock.
3. AMPI has all requisite corporate power and authority to enter into,
deliver and perform the Merger Agreement and to consummate the transactions
contemplated therein. The execution, delivery and performance of the Merger
Agreement and the consummation of the transactions contemplated therein have
been duly authorized by all necessary action on the part of AMPI's Board of
Directors and Shareholders. The Merger Agreement has been duly executed and
delivered by AMPI and the AMPI Shareholders and constitutes their valid and
legally binding obligation, enforceable against them in accordance with its
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws affecting the enforcement of creditors' rights
generally now or hereafter in effect, and subject to the availability of
equitable remedies.
4. The execution, delivery and performance of the Merger Agreement by AMPI
and the AMPI Shareholders and their consummation of the transactions
contemplated therein, do not and will not (i) require the consent, approval,
authorization, order, filing, registration or qualification of or with any
court, governmental authority or third person, except that which has already
been obtained, (ii) conflict with or result in any violation of or default under
any provision of AMPI's existing Certificate of Incorporation, as amended and in
effect, or the Bylaws of AMPI or, to counsel's knowledge, any mortgage,
indenture, lease agreement, or other agreement, instrument, permit, concession,
grant, franchise or license to which AMPI is a party or by which it is bound,
(iii) violate any law, ordinance, rule, regulation, judgment, order or decree
applicable to AMPI, or (iv) result in the creation of any security interest,
claim lien, charge or encumbrance upon any property or the common shares of
AMPI, except where the violation, conflict, breach, default, acceleration,
termination, modification, cancellation or security interests would not have a
material adverse effect on the financial condition of AMPI or on the ability of
the parties to consummate the transactions contemplated by the Merger Agreement.
5. To counsel's knowledae, there no legal, administrative, arbitration or
other proceeding claim, or action of any nature of investigation pendig or
threatened against or involving AMPI, or which questions or challenges the
validity of the Merger Agreement, or any action taken by AMPI pursuant to the
Merrger Agreement, or in coonnection with the transactions
▇▇▇▇▇▇▇ Mining Inc.
March 9, 1999
Page Three
contemplated thereby. To counsel's knowledge, AMPI is not subject to any
judgment, order or decree entered in any lawsuit or proceeding which has had an
adverse effect on its business or on its ability to acquire any property or
conduct its business in any area.
6. To counsel's knowledge, AMPI does not require the consent of any
third person to permit it to operate its business in the manner in which it
presently is being conducted, and possesses all permits and other authorizations
from third persons, including without limitation, federal, foreign, state and
local governmental authorities, presently required by applicable provisions of
law, including statutes, regulations and existing judicial decisions and by the
property and contract rights of third persons, necessary to permit it to operate
its business in the manner in which it presently is being conducted.
7. To counsel's knowledge, AMPI is in compliance with all laws,
regulations and orders applicable to its business, including without limitation,
applicable environmental, antipollution, building zoning or heath laws,
ordinances and regulations in respect of its structure and equipment. To
counsel's knowledge, AMPI has not received any notification that it is in
violation of any such laws, regulations or orders and no such violations exist.
This opinion is limited to the present laws of the State of Arizona and
the federal laws of the United States of America, including present judicial
interpretations thereof. We express no opinion with respect to the laws of any
other jurisdiction. We assume no obligation to revise or supplement this opinion
should the present laws of the jurisdictions mentioned herein be changed by
legislative action, judicial decision or otherwise.
This opinion is furnished by us as counsel to Arizona Mica Properties, Inc.
and is solely for the benefit of the addressee hereof in connection with the
transactions described in the Agreement and may no be relied upon by any other
person or for any other reason.
Very Truly yours,
▇▇▇▇▇ & ▇▇▇▇▇▇, P.L.C.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------
▇▇▇▇▇ ▇▇▇▇▇▇
JB/sb
I