SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10SB
Pursuant to Section 12(b) or 12(g) of the
Securities Exchange Act of 1934
JUINA MINING CORPORATION
Incorporated in Nevada Employer Identification No.
88-0383031
350 South Center Street,
Suite 411
Reno, Nevada 89501
Registrant's telephone number, including area code: (775) 786-0225
Securities to be registered pursuant to Section 12(b) of the Act:
None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock EBB-OTC
Par Value $0.021
<PAGE>
TABLE OF CONTENTS
Item
Page
PART I
1. Business 1
2. Management's Discussion and Analysis or Plan of Operation 8
3. Properties 8
4. Security Ownership of Certain Beneficial Owners & Management 8
5. Directors and Executive Officers of Registrant 9
6. Executive Compensation 10
7. Certain Relationships and Related Transactions 10
8. Description of Securities 11
PART II
1. Market Price of and Dividends on the Registrant's Common
Equity and Related Stockholders Matters 11
2 Legal Proceedings 12
3. Changes in and Disagreements with Accountants on Accounting 12
and Financial Disclosure
4. Recent Sales of Unregistered Securities 13
5. Indemnification of Directors and Officers 13
PART F/S
1. Financial Statements and Supplementary Data 13
PART III
1. Index to Exhibits 23
2. Description of Exhibits 23
<PAGE>
PART I
Item 1. Business
General
Juina Mining Corporation (the "Company"), a Nevada corporation, was
incorporated under the name of Pacific Entertainment Group, Inc. on March 14,
1988. In June 1990, the Company changed its name to International Brewing
and
Manufacturing, Inc. In December 1997, the Company changed its name to Juina
Mining Corporation. The Company is a diamond resource and exploration
company
which has acquired the mineral and mining rights with a 70% working interest
to 1,000 hectares (2,471 acres) of property (the "Property") in the state of
Mato Grasso, Brazil within the Aripuana-Juina Kimberlite Province. The city
of Juina is located within the state of Mato Grasso at the Southern margin of
the Amazon Basin approximately 550 km (342 miles) north of the city of
Cuiaba. This area supports several active diamond recovery operations and
numerous diamonds have been recovered from the region since 1980.
In 1997, the Company retained an experienced geological consulting firm
to conduct a preliminary investigation and prepare an analytical report
concerning the Property. Based on the positive prospects for the Property
cited in the preliminary investigation, the Company commenced a detailed
quantitative survey to determine the quantity, quality, and location of
diamonds on the Property.
On January 15, 1999, the Company received initial information from the
survey, which indicates the presence of a substantial quantity of diamonds on
the Property. The Company is in the process of preparing plans for diamond
recovery operations.
The Property
The Company owns the mineral and mining rights, with a 70% working
interest, to approximately 1,000 hectares (2,471 acres) of diamond bearing
property (Property) in the state of Mato Grosso, Brazil. These mineral
rights
are detailed in research authorization request file #866.787/85, and
superseded by file #870.787/85 to the Brazilian National Department of
Mineral
Production ("DNPM"). The Company can acquire the mineral and mining rights to
additional properties in the same area from Mineracao Juina Mirim Ltd., a
Brazilian company.
Juina is located at the southern margin of the Amazon Basin, about 550
km
(342 miles) north of the city of Cuiaba by air charter, or 724 km (450 miles)
by road. With a population of approximately one million, Cuiaba is a major
urban center in southern Mato Grosso and is serviced with regularly scheduled
daily flights from Sao Paulo and Brasilia. Rio de Janeiro is about 1,800 km
(1,119 miles) southeast of Juina.
The Property is irregularly shaped and extends roughly 4 km (2.5 miles)
north - south and averages 2.5 km (1.6 miles) in the east - west direction.
The eastern border is located approximately 68 km (42 miles) southwest of the
city of Juina.
The Land is approximately 300 meters (984 feet) above sea level. Its
topography ranges from flat to rolling. Some areas on the land are
forested.
The topography, vegetation, forestation, soil, and subsoil characteristics,
and weather conditions offer no serious impediments to year-round mining.
Currently, some of the land is being used for crop farming and grazing
cattle. The Property is described as located in Lot 09, Section Ala in the
District and Municipality of Juina. It can be reached from State Highway
MT-319, an all weather dirt road, which extends westward from Juina to
Vilhena
and intersects with the southeastern boundary. The river, Rio Viente E Um De
Abril traverses the Property in a north - westerly
<PAGE>
direction and can be reached through farm access roads originating from MT-3
19. No electrical, water or sewer utilities exist on or adjacent to the
Property.
The climate is typical of low-lying tropical forest, humid and hot, with
daytime temperatures averaging 27 degrees Celsius. The annual rainfall is
about 1,500 millimeters to 2,000 millimeters, with a dry season of about 7
months occurring from April to November.
The local topography ranges in elevation from 250 to 300 meters above
sea
level, and is characterized by a patchwork of original tropical forests and
cleared areas currently used for grazing. Until the mid 1970's, northern
Mato
Grosso was a very remote region. Clearing of the forests began in the early
1980's for the harvest of mahogany and rosewood trees. The logged areas are
cleared through burning and for the first few years, the land supported
crops. Following the depletion of the soil nutrients, the land now supports
grasses suitable for the grazing of livestock.
The discovery of alluvial diamonds in the mid-1970's resulted in an
influx of up to 30,000 garimpeieros (individual prospectors). As a result,
many of the creeks and rivers in the area have been mined in an unorganized
manner. These creeks and rivers are dotted with diggings partially filled
with water, mounds of gravel tailings and access roads bulldozed into the
forest fringes left along many of the watercourses. Portions of some of the
creeks have remained untouched.
Diamond Mining in Brazil
Diamonds were discovered in Brazil around 1727, although it is believed
that gold prospectors had seen diamond crystals as early as 1670. Over the
next 150 years, approximately 13 million carats of diamonds were recovered in
Brazil. Of this total, approximately 5.5 million carats came from Diamantina
in the state of Minas Gerais, 3.5 million carats came from Bahia, and 1.5
million carats came from other fields in Minas Gerais. By the end of the
1870's, however, Brazil's ranking as a diamond producer had fallen to third
or
fourth place. This decline was not caused by the exhaustion of deposits in
Brazil, but was due to the low grade of the diamonds recovered. While
earlier
mining efforts had been dependant on slave labor, the conversion to
mechanized
mining proved to be unprofitable. The abolition of slavery combined with
competition from discoveries in South Africa by 1880, caused Brazil's
officially recorded production to drop to only 5,000 carats per year.
Since the 1880's, Brazil's production has been cyclical and until
recently, Brazil had been unable to achieve previous production levels. A
review of historic diamond production through 1993 indicates that Brazil has
produced approximately 50 million carats, or 2.3%, of the total historical
world diamond production.
Despite the generally low grade of Brazilian deposits, Brazil is
historically known to have produced some very large stones, including the
following:
Major Historical Diamonds Found in Brazil
Uncut
Name Locality Year Carats
Presidente Vargas Santo Antonio, MG 1938 726.60
Goyaz Verissimo River, MG 1906 600.00
Darcy Vargas Coromandel, MG 1939 460.00
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Presidente Dutra Coromandel, MG 1949 409.00
Coromandel IV Coromandel, MG 1940 400.65
Diario de Minas Gerias Santo Antonio River, MG 1941 375.10
Vitoria Abaete River, Tiros, MG 1945 375.00
Tiros I Abaete River, Tiros, MG 1938 354.00
Bahia Black Bahia 1851 350.00
Vitoria Abaete River, Tiros 1943 328.34
Nearly all historical diamond recovery in Brazil has originated from
surface or shallow alluvial deposits.
In 1993, Brazil produced approximately 1.5 million carats of diamonds,
mostly from the states of Mato Grosso (60-70%) and Minas Gerais (30-40%), and
ranked sixth in world production. Most diamonds continue to be recovered
from
alluvial gravel ("cascalho") deposits.
In Mato Grosso state, diamonds are principally recovered from alluvials
in the Juina Kimberlite Province on the Amazonico Craton, which is the
largest
diamond producing area in Brazil. (As the city of Juina was not established
until the early 1980's, the Juina district is commonly referred to in earlier
literature as Aripuana). The average price obtained through recent on site
sales of typical diamonds in Juina is US$35 per carat, which calculations do
not include larger gem quality stones.
Diamond Mining and Exploration in the Juina District
In the mid-1970's, alluvial diamonds were found in the rivers in the
Juina District by garimpeieros. At that time the area was largely
inaccessible due to the absence of roads and airstrips and the heavy
vegetation typical of jungle areas within the Amazon region.
In 1978, after acquiring prospecting permits covering the complete Juina
District, De Beers Consolidated Mines, through its subsidiary Mineracao
Itapena S.A. ("Itapena"), began exploration of the region. By 1982, Itapena
identified three main areas of interest and began detailed sampling and
evaluations of those areas. A pan plant was established between two of the
properties on the Rio Cinto Larga to treat samples. Although there are no
records regarding the volume of material that was treated by Itapena, it is
believed that millions of carats of diamonds were recovered.
Itapena also identified 14 kimberlites, many of which clustered around
an
area 35 kilometers southwest of Juina, and several of which are noted on the
Geology of Brazil maps issued in 1981. (A kimberlite is geological formation
that is frequently a source of diamond deposits).
During the course of the exploration and evaluations, Itapena gradually
disposed of its land holdings in the Juina region. One of the world's largest
mining firms, Australian based Rio Tinto PLC, formerly Rio Tinto Zinc ("RTZ")
acquired most of the former Itapena properties. As a result, RTZ is
currently
the largest landholder in the Juina district, and owns property containing
most of the known kimberlites. The Aripuana Juina Kimberlite Province hosts
at least 24 kimberlites situated in the immediate vicinity of the alluvial
deposits. RTZ commenced exploration in the Juina area in 1992 and has focused
primarily on the kimberlites. Some of the kimberlites are diamondiferous and
one, the Collier pipe, is known to have a surface area of 12 hectares.
Occurrences of kimberlite are shown on geological maps to be in the vicinity
of the boundary of the Property.
<PAGE>
The scope of these explorations and the resulting reports serve as a
basis for developing a mine plan and for the projections for the Property.
Geological Investigations of the Property
Extensive exploratory work has been done around the Property by the
Company and other unrelated entities. One such study conducted on an
adjacent
property to which the Company can acquire the mineral and mining rights
concluded that 38.6 million carats of diamonds are contained in 2.1 million
cubic meters (2.74 million cubic yards) of diamond bearing gravel. This
equates to about 18 carats of diamonds per cubic meter (1.3 cubic yards) of
gravel. The exploration was extensive and utilized standard geological
evaluation techniques to determine the diamond bearing characteristics of the
property. Hundreds of soil and gravel samples were gathered and evaluated.
These samples were obtained by grab sampling (obtained from the surface) and
from cross sections of core drilling and pit excavations. Using a
magnetometer, magnetic readings were also taken for geologic evaluation
purposes and subsequently interpreted by a geophysicist.
The scope of this exploration and the resulting geological report serve as
a basis for developing a mining plan and projecting capital and operating
costs which the Company anticipates will be incurred in mining and recovering
diamonds from the Property. Detailed geological conditions such as soil
profiles, overburden ratios in relation to gravel layers, the thickness and
configuration of gravel seams, and bedrock depths were reported. After
evaluation of (i) the Company's Property as a whole, (ii) an independent
qualifying report by a senior international exploration and mining consulting
firm completed in July 1997, (iii) the exploration results on approximately
296 hectares of an adjacent property (described above), and (iv) the
geological origin of diamonds in the region, a set of operating assumptions
and a business plan have been developed. The following assumptions for the
Property have be made:
- -Sixty percent of the 1,000 hectares of the Property contain diamonds.
- -Those 600 hectares contain twenty-four million carats plus of recoverable
diamonds.
- -Each hectare contains forty thousand carats of recoverable diamonds.
- -The Property contains five meters of overburden.
- -The Property contains .4 meters of ore (diamond bearing gravel).
- -Ten carats of diamonds can be recovered per cubic meter of ore processed.
- -Seventy-four one hundreds of a carat recovered per cubic meter of material
handled.
- -The average cost per carat recovered is US$6.96.
- -The average cost per cubic meter of materials handled is US$5.16.
In March 1998, the Company commenced a detailed quantitative survey
delineating the alluvial ore deposits on the southern 250 hectare (618 acres)
portion of the Property to determine the potential ore reserves.
142 drill holes have been completed to date which cover approximately 55
hectares (128 acres) or about 22% of the sector. Layers of alluvial gravel
were encountered in 85% of the holes with an average of .70 meters in
thickness at a medium depth of 5.5 meters from the surface. This equates to
a
potential resource of 327,250 cubic meters of ore with a projected value of
over US$65,450,000.
A test pit measuring 32.5 square meters produced 9 cubic meters of ore.
A random sample of 1 cubic meter of ore was processed to extract diamonds 5
mm
and larger yielding over 7 carats per cubic meter. The largest stone weighed
3.00 carats with a second gem
<PAGE>
quality diamond weighing 1.15 carats. Historically, the sizes under 5 mm
represent a much higher quantity per cubic meter in comparison to the sizes
5mm and over.
The Company projects an estimated 1,000,000 cubic meters of alluvial ore
resources on the southern portion of the Property. Based on a quantity of 10
carats per cubic meter of ore at a conservative value of US $20.00 per carat,
and an average ore thickness of .40 meters, the Company expects to generate a
minimum of US $200,000,000 in revenues from this sector. According to
preliminary drilling results it appears that these figures may increase
significantly.
Indicator minerals have been found in the surface deposits, which point
to the evidence that a kimberlite is most likely present on the southern
portion of the property. A geophysical magnetic survey was completed in May
1998, which has located the position of 4 kimberlite-like profiles. A
drilling program will commence, utilizing revenues that are generated from
the
alluvial deposits, to define this resource.
Mining and Recovery Operations at the Property
Most of the diamond mining activity in the Juina district involves
placer
and river dredging operations. Diamonds are found on the surface or in
shallow gravel and many individual prospectors search for diamonds by hand
picking or panning surface materials. Current recovery operations in the
area
range in size and scope from small groups engaged in recreational type mining
to large mining companies with full-scale operations.
The Company's plan for mining and recovery of diamonds entails surface
mining the Property's diamond bearing gravel. Ground surface, vegetation and
overburden will be removed and diamond-bearing gravel will be transported to
a
processing site. During the first phase of the Company's mining and recovery
activity, the gravel will be run over a series of screens and jigs to
concentrate the "heavies" which contain diamonds. This product will then be
further concentrated with the use of a laser-guided sorter until nothing but
an assortment of diamonds remains. The Company plans to implement a heavy
liquid specific gravity system along with additional material handling
equipment
during phases one and two of the Company's mining and recovery activities.
The quality of recoverable diamonds on the Property ranges from
industrial to near gem and gem quality. Based on the findings from the
analysis conducted by the Company and the results of other diamond recovery
activities in the area, the Company expects to recover diamonds with a fair
market value of US$20.00 per carat, excluding the larger gems. Pricing
estimates are based on current market pricing for rough diamonds. The
composition of the recoverable diamonds on the Property and their expected
value is summarized as follows:
% of Reserves Value Range per Carat
75% $15.00 to $20.00
20% $50.00 to $100.00
3% $l50.00 to $200.00
2% $500.00 or more
<PAGE>
Marketing
The Company has conducted negotiations with several established diamond
buyers and has received expressions of interest and letters of intent for the
purchase of all, or a substantial portion of the Company's projected
production of 288,000 carats over the first year of operations and 760,000
carats for the second year of operations. The Company anticipates that it
will sell the diamonds at prevailing market prices on terms acceptable to the
Company. After reviewing near and long term demand forecasts for rough
diamonds on the world market, the Company believes that it will be able to
sell its total production output at its projected prices.
Regulation
There have been considerable recent changes in Brazil's Mining Code in
an attempt to attract more foreign capital to the mining sector. Originally,
under the Mining Code established in 1967, authorization to undertake
exploration and mining was granted only to Brazilians. In 1988, Brazil
adopted a new constitution that distinguished between privately owned
Brazilian companies (empresa brasileira) and state-funded companies (empresa
brasileira de capital nacional) and placed restrictions on foreign capital.
The 1988 constitution limited the exploration for and mining of mineral
resources to Brazilians and companies utilizing Brazilian capital. Companies
controlled by individuals including foreigners residing in Brazil were
considered to be companies utilizing Brazilian capital.
On August 15, 1995, in an effort to attract more foreign investors,
Brazil repealed its constitutional prohibition against non-Brazilian
capital.
Foreign owned companies with at least one Brazilian director may now explore
and mine mineral resources.
The Mining Code of 1967 and its accompanying regulations passed in 1968
regulate all mining activities and outline the rights and obligations of
parties interested in mining. The Brazilian Mineral Production Department
("DNPM") which is associated with the Ministry of Mines is responsible for
regulating and implementing the Mining Code. DNPM monitors the exploration,
mining, processing, and trading of minerals. Mineral exploration and
production may be carried out only with the authorization of the DNPM.
Authorization takes approximately one to three months to obtain. Provided
that all requirements are met and the area of interest is not already covered
by an exploration permit, exploration permits are usually granted for an
initial three year period.
To ensure that landowners share in the mining benefits "financial
compensation," a royalty payment, must be paid to the owners of property on
which a mining concession has been granted. The financial compensation
accorded to the owners of the property is typically 30% of the total diamond
production from a company's recovery operations at the property.
Competition
The Company will be competing with other diamond production companies in
the production of diamonds. Many of these companies have significantly
greater financial resources than the Company. Competitors with greater
financial resources may employ more sophisticated, efficient, and less costly
techniques of recovering diamonds, or may be more successful than the Company
with respect to acquiring interests in additional properties. New
discoveries
of diamond reserves in Brazil or elsewhere in the world may dramatically
increase the supply of diamonds and depress diamond prices. The diamonds the
Company expects to recover will mostly be of industrial grade and will be
purchased for industrial functional
<PAGE>
purposes, which improve the abrasive qualities of certain cutting, boring and
polishing tools. New technologies may be developed which replace the use of
diamonds in such tools and may reduce the demand for industrial diamonds.
The sale of any diamonds recovered by the Company will be affected by
fluctuating market conditions, which are beyond the control of the Company.
One competitor, De Beers Consolidated Mining, controls the production and
marketing of more than 70% of the world's diamonds and is able independently
to influence the diamond markets. Because diamonds are a commodity product,
the Company has limited opportunities to improve the prices it receives for
its diamonds by employing marketing techniques. There can be no assurance
that the Company's revenues will not be adversely affected by competitive
factors.
Litigation
The Company has disputes from time to time, some of which lead to
litigation and others of which are settled without litigation. The Company
is not aware of any legal proceedings or pending or threatened lawsuits
against
it which would have a material adverse affect on the Company.
Office Facilities
The Company presently maintains its executive offices at 350 South
Center Street, Suite 411, Reno, Nevada 89501, pursuant to a lease agreement
with
an unaffiliated landlord. The lease covers 650 square feet of office space,
provides for monthly rent of $890 and has a term of 36 months, which commenced
on October 1, 1997. The Company does not plan to increase its office space
at the present time.
The Company also maintains offices in Brazil. The Company's Brazilian
offices are located in a single level commercial office building in the city
of Juina, which is owned by the Company. The office space is approximately
5,500 square feet. The Company acquired this property and the properties
below at a purchase price of 200,000 shares of restricted Rule 144 common
stock. Additional terms and conditions are included in the footnotes of the
audited financial statements.
The Company also owns two four bedroom dwellings located in the city of
Juina. The first dwelling is approximately 2,500 square feet. The second
dwelling is approximately 3,000 square feet.
Employees
The Company has 1 employee including its executive officer at its
executive offices. The Company has approximately 30 employees at the
Property including 1 project manager.
Seasonality
The Company's operations are not expected to be materially affected by
seasonality, except to the extent that the diamond exploration and production
activities of the Company may be slowed by the rainy season in Brazil, which
occurs during summer in the Southern Hemisphere.
<PAGE>
Item 2. Management's Discussion and Analysis or Plan of Operations.
Predicated on geological reports and other information, the Company
anticipates a five-year production schedule of 288,000 carats in year one,
760,000 carats in year two, 1.1 million carats in year three, and 1.2 million
carats per annum in years four and five. Total recovery for the five-year
period is projected to be 4.55 million carats.
The Company's long term production plan is to recover diamonds at the
nominal rate of 1.2 million carats annually. At this level of production, the
Company anticipates that it will maintain continuous recovery operations on
the Property for approximately 20 years.
The Company's 20 year projections anticipate 22.55 million carats
recovered and revenues generated of US$451 million less US$167 million in
expenditures. The remaining projected net income before taxes will be
applied
to the payment of taxes, retained earnings, and dividend distribution.
Assuming that all taxes are incurred and paid at the rate of 20% of net
earnings or US$56.8 million, the Company will have US$227.2 million for
retained earnings, investment capital, and dividend distribution.
Given the geological findings on the Property, present world market
conditions, pricing levels for rough diamonds and the Company's operating
assumptions, the Company anticipates that it will recover approximately 4.55
million carats amounting to revenues of approximately US$90.96 million less
total expenditures of US$40.9 million during the first five years of
operation. The remaining revenue will be applied to the payment of taxes,
retained earnings, and dividend distribution. Assuming that all taxes are
incurred and paid at a rate of 20% of net earnings or US$10.01million, the
Company will have US$40.05 million for retained earnings, investment capital,
and dividend distribution.
Item 3. Properties
The Company presently maintains its executive offices at 350 South
Center
Street, Suite 411, Reno, Nevada 89501, pursuant to a lease agreement with an
unaffiliated landlord. The lease covers 650 square feet of office space,
provides for monthly rent of $890.00 and has a term of 36 months, which
commenced on October 1, 1997. The Company does not plan to increase its
office space at the present time.
Item 4. Security Ownership of Certain Beneficial Owners and Management
The following table sets forth the beneficial owners of more than 5% of
the outstanding common stock of the Company, including the beneficial owners
of options and warrants to purchase common stock, and the shares of common
stock owned by the officers, directors, key consultants and advisors of the
Company, as of September 20, 1999:
Amount and
Name of Nature of Percent
Beneficial Beneficial of
Title of Class Owner Ownership
Class
Common Shares (1) Blue Diamond Marketing 2,572,222 15.7%
Common Shares (2) Nelson Ferreira De Matos 848,400 5.2%
Common Shares (3) Airton Cezar Reis 848,400 5.2%
Common Shares (4) Fredrico Carlos Traven 848,400 5.2%
Common Shares (5) Paulo C. Traven 848,400 5.2%
Common Shares (6)All Directors and 299,065 1.8%
Officers as a Group
(6) Noel M. Frenzel the President, Secretary, Treasurer of the Company,
owns 299,065 shares.
Item 5. Directors and Executive Officers of Registrant.
The following table lists the names and ages of the executive officers,
directors and key consultants of the Company. The directors will continue to
serve until the next annual shareholders meeting, scheduled for March 2000,
or
until their successors are elected and qualified. All officers serve at the
discretion of the Board of Directors. No family relationships exist between
or among any of the directors of the Company.
Name Age Position
Noel M. Frenzel 35 President, Secretary and Treasurer
James McFadden 36 Director
Noel M. Frenzel has served as a Director of the Company from December
1997 to May 1999. He has held the position of President, Treasurer and
Secretary since December 1997. He is also the Director, President, Treasurer
and Secretary of the Company's subsidiary, Juina Mining Company, Inc., since
its incorporation in August 1997. From 1996 to his election as an officer
and
director, Mr. Frenzel was involved in the organization, structuring and
development of the Company. Mr. Frenzel has extensive experience in
management, administration and in marketing of services. Prior to his
involvement with the Company, Mr. Frenzel was a Principal with Industrial
Equipment Locators in San Fernando, California from 1991 to 1996, where he
was
a liaison between buyers and sellers of specialized earth-moving equipment.
From 1982 until 1990, Mr. Frenzel was an Owner\Operations Manager of City &
Highway Towing in Van Nuys, California, which towed and recovered large-scale
vehicles and equipment. Mr. Frenzel presently resides in Reno, Nevada.
James McFadden serves as Corporate Vice President of sales for the firm
Laughlin Associates, Inc. of Carson City, Nevada, where he is responsible for
the implementation of corporate infrastructures for emerging corporations.
Mr. McFadden attended Diablo Valley College in San Francisco, California
where
he studied Business Administration. Prior to joining Laughlin Associates,
Inc., Mr. McFadden served as a Senior Mortgage Officer with Centurion
Mortgage
of Concord, California. Mr. McFadden is married with two children and
presently resides in Gardenerville, Nevada.
<PAGE>
Item 6. Executive Compensation
The following table sets forth all cash compensation paid and stock
options issued for services rendered to the Company by its present directors
and executive officers during its last fiscal year. During the last fiscal
year, no directors or executive officer received cash compensation from the
Company in excess of $100,000 per year. No cash bonuses were paid by the
Company nor was any such compensation deferred during the last fiscal year.
Cash Stock
Name Position Compensation Options
Noel M. Frenzel Director, President, $41,600.00 None
Treasurer and Secretary
The following table sets forth the proforma cash compensation expected to be
paid by the Company to its directors and executive officers for services to
be
rendered to the Company during the twelve-month period beginning January 1,
1999.
Cash Stock
Name Position Compensation Options
Noel M. Frenzel President, Treasurer 41,600.00 (1)
and Secretary
James McFadden Director 0 (1)
(1) No stock option plan has been adopted to date.
Item 7. Certain Relationships and Related Transactions
Acquisition of Juina Mining Company, Inc.
On December 12, 1997, the Company entered into an agreement to acquire
the mining rights to the Property from Juina Mining Company, Inc. ("JMC"), a
Nevada corporation. The Company acquired 100% of the issued and outstanding
shares of JMC in exchange for 6,000,000 shares of the common stock of the
Company. As a result of the exchange, the Company obtained all of the assets
of JMC, including a 70% working interest in the property known as
Juina-Aripuana Diamond Property 1000 in the State of Mato Grosso, Brazil.
Prior to the exchange, the Company had 2,332,572 shares of common stock
issued
and outstanding. After the exchange the Company had 8,332,572 shares of
common stock issued and outstanding. The exchange agreement called for the
resignation of all of the Company's officers and directors. The President of
JMC, Noel M. Frenzel, became the Director, President, Secretary and Treasurer
of the Company.
Private Placements
Period Ending Number of Shares Consideration Exemption
December 31, 1997 200,000 shares $15,000 Cash Private
Placement/144
June 30, 1998 50,000 shares $50,000 Services Rule 144
December 31, 1998 440,000 shares $55,000 Cash Private
Placement/144
December 31, 1998 2,572,222 shares $463,000 Cash Private
Placement/144*
<PAGE>
*$95,500.00 was received in the first month of 1999.
Item 8. Description of Registrant's Securities to be Registered
Common Stock
The Company is authorized to issue 50,000,000 shares of common stock,
par
value of $0.021, of which 16,366,213 shares are issued and outstanding as of
September 24, 1999. Holders of Common Stock are entitled to dividends when,
as and if declared by the Board of Directors out of funds available therefor,
subject to any priority as to dividends for Preferred Stock that may be
outstanding. See "DIVIDEND POLICY." Holders of Common Stock are entitled to
cast one vote for each share held at all stockholder meetings for all
purposes, including the election of directors. The holders of more than 50%
of the Common Stock issued and outstanding and entitled to vote, present in
person or by proxy, constitute a quorum at all meetings of stockholders. The
vote of the holders of a majority of Common Stock present at such a meeting
will decide any question brought before such meeting, except for certain
actions such as amendments to the Company's Certificate of Incorporation,
mergers or dissolutions which require the vote of the holders of a majority
of
the outstanding Common Stock. Upon liquidation or dissolution, the holder of
each outstanding share of Common Stock will be entitled to share equally in
the assets of the Company legally available for distribution to such
stockholder after payment of all liabilities and after distributions to
preferred stockholders legally entitled to such distributions. Holders of
Common Stock do not have any preemptive, subscription or redemption rights.
They are entitled to cumulative voting rights under the California
Corporations Code. Under cumulative voting, minority shareholders may have
the right to vote one or more members onto the Company's Board of Directors.
All outstanding shares of Common Stock are fully paid and nonassessable. The
holders of the Common Stock do not have any registration rights with respect
to the stock.
Preferred Stock
The Company is authorized to issue 10,000,000 shares of Preferred Stock
with such rights, preferences and privileges as are determined by the
Company's Board of Directors. No Preferred Stock is outstanding.
Transfer Agent and Registrar
The transfer agent for the Company's Shares is Fidelity Transfer
Company,
1800 W. Temple, Suite 301, Salt Lake City, Utah 84115. The telephone number
is (801) 484-7222.
Reports to Stockholders
The Company will furnish to holders of record its common stock annual
reports which will contain financial statements examined and reported upon by
an independent certified public accountant, and quarterly reports with
unaudited financial statements.
PART II
Item 1. Market Price of and Dividends on the Registrant's Common Equity
and Related Stockholders Matters.
The Company is organized under the laws of Nevada, and its common stock
has been traded on the OTC Bulletin Board since December 1997 under the
symbol
GEMM. No cash dividends on the Company's common stock have been declared or
paid since the Company's inception and none are anticipated in the near
future, since retained earnings in the forseeable future are expected to be
reinvested by the Company into the expansion of its marketing programs and
the development of new products.
The Company had approximately 1,600 listed shareholders as of August 24,
1999
Calendar Quarter Ending High (1) Low (1)
June 30, 1996 No trading
September 30, 1996 No trading
December 31, 1996 No trading
March 31, 1997 No trading
June 30, 1997 No trading
September 30, 1997 No trading
December 31, 1999 $2.97 $2.56
March 31, 1998 $3.97 $1.55
June 30, 1998 $3.71 $1.86
September 30, 1998 $3.43 $0.62
December 31, 1998 $2.00 $0.25
March 31, 1999 $2.13 $1.13
June 30, 1999
September 30, 1999
(1) The above chart reflects the trading range during each quarter.
Item 2. Legal Proceedings
For the exception of the following action, to the knowledge of the
Company and its officers and directors, neither the Company or any of its
officers and directors, in their capacities as such, are a party to any
material legal proceeding or litigation contemplated or threatened as of the
date of this report.
The Company is named as a defendant in a civil lawsuit against one of
the
Company's shareholders. The plaintiff states that the defendant and/or
defendants have materially breached the contract known as the Stock Purchase
Agreement that was entered into on October 21, 1998 (the "Agreement"), due to
the fact of additional shares being owed to the plaintiff. The Agreement was
signed by both of the Parties. Additionally, the Company signed for the sole
purpose of acknowledging the Agreement, which included an assignment of a
working interest in the Property in the amount of 1/3 of 1% for the first
year
and 1/6 of 1% each following year. The Company is responsible for
distributing
the working interests, therefore, must have knowledge of any reassignments.
The working interest has been properly reassigned. The Company was not
referred to as a "Party" in the Agreement. The Company believes it has no
liability regarding this action.
Item 3. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
The Company has not had any disagreements with its accountants regarding
accounting and financial disclosure. The Company has utilized Alex N.
Chaplan
& Associates, independent Certified Public Accountants, since 1997 to conduct
the audits of the entity. The Company intends to use Alex N. Chaplan &
Associates, Certified Public Accountants, as its independent accounting firm
in
the foreseeable future.
Item 4. Recent Sales of Unregistered Securities
The following table lists the sale of all common stock, options, and
warrant by the Company in transactions exempt from registration under the
Securities Act of 1933, as amended, during the last three fiscal years ending
December 31, 1998. All figures are in United States dollars.
Number of
Shares, Options Available
Period Ending or Warrants Consideration Exemption
December 31, 1997 2,000,000 shares $100,000.00 Cash Rule 504
March 31, 1998 31,000 shares $62,000.00 Services Rule 504
June 30, 1998 566,665 shares $424,998.75 Cash Rule 504
September 30,1998 305,967 shares $229,475.00 Cash Rule 504
September 30, 1998 7,500 shares $5,625.00 Services Rule 504
December 31, 1998 1,617,284 shares $177,901.00 Cash Rule 504
Item 5. Indemnification of Directors and Officers
Under the laws of Nevada and the Company's Articles of Incorporation,
the
Company's directors will have no personal liability to the Company or its
stockholders for monetary damages incurred as the result of the breach or
alleged breach by a director of his duty of care. This provision does not
apply to the directors (i) breach of their duty of loyalty, (ii) acts or
omissions not in good faith or involving intentional violations of law, (iii)
illegal payment of dividends, stock repurchases, or stock redemption, and
(iv) approval of any transaction from which a director derives an improper
personal benefit. Directors may be responsible to the Company's shareholders
for damages suffered by the Company or its shareholders as a result of a
breach of their fiduciary duty.
In so far as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted for directors, officers or person
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Securities and Exchange Commission
each indemnification is against public policy as expressed in the Act and is
therefore unenforceable.
PART F/S
JUINA MINING CORPORATION
AND WHOLLY OWNED SUBSIDIARY
(A Development Stage Company)
CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1998
JUINA MINING CORPORATION
AND WHOLLY OWNED SUBSIDIARY
(A DEVELOPMENT STAGE COMPANY)
CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1998
CONTENTS
Page
Independent Auditor's Report 1
Consolidated Balance Sheet 2-3
Consolidated Cumulative Statement of Stockholders' Equity 4
Consolidated Cumulative Statement of Cash Flow 5
Consolidated Cumulative Income Statement 6
Notes to Consolidated Financial Statement 7-9
<PAGE>
INDEPENDENT AUDITOR'S REPORT
To the Board of Directors
Juina Mining Corporation
and Wholly Owned Subsidiary
(A Development Stage Company)
Reno, Nevada
We have audited the accompanying consolidated balance sheet of Juina Mining
Corporation and wholly owned subsidiary, (A Development Stage Company) as of
December 31, 1998 and the related consolidated cumulative income statement,
changes in stockholders' equity and cash flow for the period from August 4,
1997 to December 31, 1998. These financial statements are the responsibility
of the Company's management. Our responsibility is to express an opinion on
the financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statement.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Juina
Mining Corporation and wholly owned subsidiary, (A Development Stage Company)
at December 31, 1998 and the results of its cumulative operations and its
cumulative cash flow for the period from August 4, 1998 to December 31, 1998
in conformity with generally accepted accounting principles.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 4 to the
financial statements, the Company has not yet commenced operations and has
recently redirected its development stage activities. These factors raise
substantial doubt about the Company's ability to continue as a going
concern. Management's plans in regard to these matters are discussed in Note
4. The financial statements do not include any adjustments relating to the
recoverability and classification of asset carrying amounts or the amount and
classification of liabilities that might result should the Company be unable
to continue as a going concern.
ALEX N. CHAPLAN, C.P.A.
Calabasas, CA
June 1, 1999
- -1-
<PAGE>
JUINA MINING CORPORATION
AND WHOLLY OWNED SUBSIDIARY
(A Development Stage Company)
CONSOLIDATED BALANCE SHEET
DECEMBER 31, 1998
ASSETS
CURRENT ASSETS
Cash $30,780
Receivables
Common Stock Subscriptions 98,000
Due from related parties 3,418
101,418
Exploration expenses 641,785
TOTAL CURRENT ASSETS $773,983
PROPERTY AND EQUIPMENT AT COST
Administrative Offices $350,000
Company Residence 40,000
Processing Equipment 296,220
Vehicles 64,528
Office Equipment 27,835
Exploration and Mining Equipment 626,473
TOTAL PROPERTY AND EQUIPMENT 1,405,056
OTHER ASSETS
Mineral Rights 139,200
Deposit 2,000
TOTAL OTHER ASSETS $141,200
TOTAL ASSETS $2,320,239
The accompanying notes are an integral part of these financial
statements.
-2-
<PAGE>
JUINA MINING CORPORATION
AND WHOLLY OWNED SUBSIDIARY
(A Development Stage Company)
CONSOLIDATED BALANCE SHEET
DECEMBER 31, 1998
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $115,440
Payroll taxes payable $1,637
TOTAL CURRENT LIABILITIES 117,077
LONG-TERM DEBT
Loans payable - Paulo C. Travern &
Airton Cezar Reis (1/2 each) 122,331
TOTAL LIABILITIES 239,408
STOCKHOLDERS' EQUITY
Common stock $.021 par value, 50,000,000
shares authorized; 12,042,958 shares
authorized and outstanding $252,902
Paid-in capital in excess of par value
on common stock 1,850,986
Subscribed but not issued-2,572,222 shares 463,000
TOTAL PAID-IN COMMON STOCK $2,566,888
Deficit accumulated during
development stage (481,057)
TOTAL PAID-IN CAPITAL
ACCUMULATED DEFICIT 2,085,831
Treasury stock, 2,867 shares at cost (5,000)
TOTAL STOCKHOLDERS' EQUITY $2,080,831
TOTAL LIABILITIES AND
STOCKHOLDERS' EQUITY $2,320,239
The accompanying notes are an integral part of these financial
statements.
-3-
<PAGE>
JUINA MINING CORPORATION
AND WHOLLY OWNED SUBSIDIARY
(A Development Stage Company)
CONSOLIDATED CUMULATIVE STATEMENT OF STOCKHOLDERS' EQUITY
AUGUST 4, 1997 THROUGH DECEMBER 31, 1998
Balance at August 4, 1997 $127,322
Issuance of Common Stock for:
Cash 1,017,375
Services 67,625
Assets acquired 891,566
Common stock subscribed but not issued 463,000
Treasury stock - at cost (5,000)
Net (Loss) (481,057)
1,953,509
BALANCE AT DECEMBER 31, 1997 $2,080,831
The accompanying notes are an integral part of these financial
statements.
-4-
<PAGE>
JUINA MINING CORPORATION
AND WHOLLY OWNED SUBSIDIARY
(A Development Stage Company)
CONSOLIDATED CUMULATIVE STATEMENT OF CASH
FLOW
AUGUST 4, 1997 THROUGH DECEMBER 31, 1998
Cash flows from operating activities:
Net (Loss) ($481,057)
Adjustments to reconcile net loss to net cash used
in operating activities:
Financing cost related to issuance of common
stock changes in assets and liabilities, net of
non cash transactions:
Decrease(increase) in receivables (101,418)
Decrease(increase) in exploration expenses (641,785)
Decrease(increase) in other assets (141,200)
Decrease(increase) in property and equipment (1,405,056)
Increase in liabilities 239,408
TOTAL ADJUSTMENTS (2,050,051)
NET CASH USED IN OPERATING
ACTIVITIES (2,531,108)
Cash flows from investing activities:
None
Cash flows from financing activities:
Proceeds from issuance of common stock $1,144,697
Stock issued for services 67,625
Stock issued for assets 891,566
Stock subscriptions-stock issued February 1999 463,000
Treasury stock (at cost) (5,000)
TOTAL FROM FINANCING ACTIVITIES 2,561,888
Net increase in cash 30,780
Cash at beginning of period 0
Cash at end of period $30,780
See accompanying notes to financial
statements
-5-
<PAGE>
JUINA MINING CORPORATION
AND WHOLLY OWNED SUBSIDIARY
(A Development Stage Company)
CONSOLIDATED CUMULATIVE INCOME STATEMENT
AUGUST 4, 1997 THROUGH DECEMBER 31, 1998
Income $0
Operating Expenses
Consulting Fees $140,498
Salaries 60,017
Legal Fees 49,156
Advertising 46,035
Telephone 27,763
Travel 25,271
Accounting 19,474
Office Lease 17,358
Stock Transfer Service 16,894
Taxes 10,100
Commissions 10,000
Postage/Shipping 8,972
Rent 7,500
House costs including:
food, utilities & maintenance 7,078
Copying/Printing 7,060
Bookkeeping 5,500
Office Supplies & Miscellaneous 4,662
Relocation 3,829
Bank Charges 3,791
Diamond Cutting 2,475
Interest 1,869
Vehicle Expense 1,211
Insurance 1,198
Entertainment 1,181
Miscellaneous 1,158
Maintenance 706
Utilities 301
TOTAL OPERATING EXPENSE 481,057
NET( LOSS) FOR THE PERIOD $481,057
The accompanying notes are an integral part of these financial
statements.
-6-
<PAGE>
JUINA MINING CORPORATION
AND WHOLLY OWNED SUBSIDIARY
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1998
Note 1 - Summary of significant accounting policies and line of business:
Reorganization:
International Brewing and Manufacturing, Inc.(IBRU) (the Company) was
organized as a Nevada corporation on March 14, 1988 under the name of Pacific
Entertainment Group, Inc. The Company was involuntarily dissolved on
December
1, 1989 and subsequently reinstated on April 3, 1990 as International Brewing
and Manufacturing, Inc. The Company was again involuntarily dissolved on
December 1, 1995 and subsequently reinstated in good standing on November 13,
1997.
Effective December 1, 1997, the Board of Directors authorized a reverse stock
split of the common stock issued and outstanding in the form of one remaining
share for every 2,000 previously owned by each shareholder of record.
Effective
December 2, 1997, the Board of Directors approved the sale of 200,000 post
reverse-split shares for $15,000 to cover expenses incurred in connection
with
the reactivation of the Company. The Board has also approved the sale of
2,000,000 shares of post reverse-split common stock for $100,000. On
December
3, 1997, International Brewing and Manufacturing filed a Regulation D, Rule
504 offering with the Security and Exchange Commission and the State of New
York, whereas, a New York or offshore resident or entity could purchase 504
free trading shares.
On December 5, 1997, the name of the Company was changed to Juina Mining
Corporation (JMC). On December 12, 1997, a stock Exchange Agreement was
consummated between Juina Mining Company, Inc. and Juina Mining Corporation,
whereas, Juina Mining Company, Inc. would exchange 6,000,000 shares of
their privately held stock, representing 100% of theissued and outstanding
shares for 6,000,000 shares of restricted Rule 144 of Juina Mining
Corporation's publicly held stock, thereby making Juina Mining Company, Inc.
a one hundred percent (100%) owned subsidiary of Juina Mining Corporation.
On September 1, 1998, the shareholders and the Board of Directors believe
that it is in the best interest of the Company to effect a stock split of the
issued and outstanding Common Stock of the Company pursuant to which 101
shares will be deemed to be outstanding for every 100 shares of the Company's
Common Stock outstanding on the effective date of the stock split (Stock
Split)The shareholders and the Board of Directors believe that it is in the
best interests of the Company to declare, pay and issue a 5% stock dividend on
the issued and outstanding shares of the Common Stock of the Company after
the
Stock Split.
The directors resolved that the Company amend its Resolution dated September
1, 1998 to change the forward stock split from 101 shares for every 100
shares
of common stock to a 1% forward stock split. This amendment is necessary to
accommodate the transfer agents ease of accounting. Any fractional shares
with regards to the forward stock split and stock dividend will be rounded up
if .5 or over.
On May 20, 1998, the Company amended the terms of the Offering to provide for
the offering of up to 1,200,000 shares for a purchase price of $0.75 per
share. As of May 20, 1998, no shares of the Company's stock had been sold
pursuant to this Offering.
On October 15, 1998, the Company amended the terms of the Offering to provide
for the offering of up to 1,617,284 shares for a purchase price of $0.11 per
share. As of October 15, 1998, the Company had sold for cash or issued
shares for services totaling $722,098.75, represented by 31,000 shares at
$2.00 per
share and 880,132 shares at $0.75 per share. As of December 31, 1998, this
Offering was closed.
- -7-
<PAGE>
JUINA MINING CORPORATION
AND WHOLLY OWNED SUBSIDIARY
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1998
Note 1 - Summary of significant accounting policies and line of business
(Continued):
Use of estimates & assumptions:
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect certain reported amounts and disclosures. Accordingly, actual
results could differ from those estimates.
On December 31, 1998, Juina Mining Corporation had 12,042,958 shares issued
and outstanding 7,446,719 shares restricted and 4,596,239 shares free trading
with approximately 700 shareholders.
Note 2 - Deferred income taxes:
The provision (benefit) for income taxes is based on transactions included in
the determination of pre-tax accounting income or loss, including appropriate
provision (benefit) for deferred income taxes. Deferred tax liabilities and
assets are recognized for the expected future tax consequences of events that
have been included in the financial statements or tax returns. Deferred
income tax assets and liabilities are computed annually for differences
between the financial statement and tax bases of assets and liabilities that
will result in taxable or deductible amounts in the future based on enacted
tax laws and rates applicable to the periods in which the differences are
expected to affect taxable income. Valuation allowances are established when
necessary to reduce deferred tax assets to the amount expected to be realized.
There are no net deferred tax assets or liabilities in the accompanying
balance sheet at December 31, 1998.
Note 3 - Subsequent events:
On November 5, 1998, the Company received common stock subscriptions for
2,572,222 shares of stock at $0.18 per shares totaling $463,000.00. The
Company received $365,000.00 as of December 31, 1998. The balance of
$98,000.00 was received on January 28, 1999 and the shares issued on February
5, 1999.
Note 4 - Continued operations:
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in the accompanying
pro-forma information, the Company, through its subsidiary, intends to mine
and recover diamonds from approximately 2,471 acres of diamond bearing gravel
located in the State of Mato Grosso, Brazil. Management intends to continue
to look to the securities markets for the necessary capital to finance the
Company's planned operations. It is not certain that the Company will be
able
to obtain the financing required to fund the planned operations or retained
sufficient management expertise to continue its planned business operations.
These factors raise substantial doubt about the company's ability to continue
as a going concern. The financial statements do not include any adjustments
relating to the recoverability and classification of asset carrying amounts
or
the amount and classification of liabilities that might result should the
Company be unable to continue as a going concern.
- -8-
<PAGE>
JUINA MINING CORPORATION
AND WHOLLY OWNED SUBSIDIARY
(A Development Stage Company)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1998
Note 5 - Asset Purchase Agreement
An asset purchase agreement, made the 10th day of November 1997 between Juina
Mining Co., Inc. a Nevada corporation (Buyer) and Airton Cezar Reis
(Seller). Seller owns a commercial office building and two homes located in
Juina and Brazil and Seller desired to exchange the Property for 200,000
shares of privately held stock of Buyer. Seller hereby transferred to Buyer,
Seller's right, title and interest, including all tangible and intangible
personal property now or hereafter located on or about the property or used
in connection with the property, including, without limitation, all
governmental permits, approvals, authorizations, declarations, and
applications therefor obtained or filed in connection with the property, all
agreement, understandings, reports, plans, maps, bonds, deposits, fees,
studies, notices and other materials prepared, given, filed or used or to be
used in connection with the property, and all contracts, if any, entered into
by Seller and approved by Buyer, which shall affect directly or indirectly the
property. Seller further agreed to take such further action and execute any
and all additional documents, assignments, deeds or other papers as were
necessary to carry out the purposes of the Agreement and to transfer titles to
the Property of record to Buyer.
Buyer granted to Seller 200,000 shares of its restricted stock in a private
placement. The stock was be converted to restricted stock in a publicly
traded company when such stock is generally available. Seller had the option
to return the shares and receive full title back on the Property under the
following conditions: During the first thirty-six months following the
effective date of the Agreement, After the stock conversion set forth in
Paragraph 2 of the Agreement, and if the market price for such shares is
below
$2 per share. Seller may exercise the option by tendering the share with
notice of exercise of this option to Buyer at Buyer's office in Reno, Nevada.
Seller represents and warrants that it has marketable title to the Property,
that all taxes and fees with respect to the Property are paid in full, that
all documents, contracts and papers with respect to the Property have been
delivered by Seller to Buyer. That Seller has no knowledge of any pending or
threatened claim or litigation against the Property and Seller has not
received any notice from any governmental authority of defects in the
Property
or noncompliance with any applicable law, code, or regulation. That no
Brokers commission is due with respect to this sale or exchange.
Unless otherwise agreed by the Parties, possession of the Property shall be
transferred to Buyer as of July 1, 1999. No change or addition to this
Agreement or any part thereof shall be valid unless in writing and signed by
each of the parties. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the respective parties. This
Agreement shall be governed by Nevada law.
- -9-
<PAGE>
PART III
Item 1 and 2. Index and Description of Exhibits
2.(i) Plan of Reorganization and Stock Exchange Agreement with
International Brewing and Manufacturing, Inc.
3.(i) Articles of Amendment to the Certificate of Incorporation
3.(ii) By-Laws
10.(i) Office Lease for the Company
10.(ii) Mining Concession for the Mining Property
10.(iii) Assignment of Mineral Concession to the Company
10.(iv) Asset Purchase Agreement
10.(v) First Amendment to Asset Purchase Agreement
10.(vi) Assignment of Working Interest
21. Subsidiaries of the Company
24. Power of Attorney: See the Registration Statement.
SIGNATURES
Pursuant to the requirements of Section 12(g) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized on September 24, 1999.
JUINA MINING CORPORATION
By: /s/ Noel M. Frenzel
Noel M. Frenzel, President
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities indicated on September 24, 1999.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Warren J. Soloski, Esq., and each of them, his
or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead in and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might do in person, hereby ramifying and
confirming
all that said attorney-in-fact and agent to his substitutes, may lawfully do
or cause to be done by virtue thereof.
Signature Title
By: /s/ James McFadden Chairman of the Board of Directors
James McFadden
By: /s/ Noel M. Frenzel President, Treasurer and Secretary
Noel M. Frenzel
<PAGE>
EXHIBIT 2.(i) STOCK EXCHANGE AGREEMENT
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement ("Agreement") is made and entered into
this 12TH day of December, 1997 by and among Juina Mining Corporation, a
Nevadacorporation having its principal place of business at 10550 South West
Allen Blvd., Suite 100, Beaverton, Oregon 97005, (hereinafter "JMCorp") and
each of the stock holders listed on page 7 hereof (hereinafter jointly and
severally, "Sellers") of Juina Mining Company, Inc., a Nevada corporation
having its principal place of business at 350 South Center Street, Suite 411,
Reno, Nevada 89501, (hereinafter "JMC").
RECITALS
A. Sellers own or have rights to all of the capital stock, and
interests therein, of the JMC Shares, and
B. JMCorp wishes to buy, and Sellers wish to sell, subject to the
provisions of this Agreement, all right, title and interest in such capital
stock.
AGREEMENT
Now, Therefore, in consideration of the mutual covenants, promises
and
agreements contained herein, the parties agree as follows:
1. Purchase and Sale
1.01 Purchase and Sale of JMC Shares. JMCorp agrees to acquire from
Sellers and Sellers agree to transfer, assign, convey and deliver to JMCorp
at
the closing, all right, title and interest in and to an aggregate of Six
Million (6,000,000) shares of common stock of JMC (hereinafter the "JMC
Shares") in exchange for an aggregate of Six Million (6,000,000) shares of
common stock of JMCorp (hereinafter the "JMCorp Shares"). Each Seller shall
receive a number of JMCorp Shares equal to the number of JMC Shares delivered
by such Seller being 100% of the issued and outstanding shares of JMC.
2. Closing
Unless extended by the mutual agreement of JMCorp and JMC, the
Closing
of the transaction contemplated hereby shall be held on Friday December 12,
1997, at 10:00 a.m. at the law offices of Mark J. Richardson, 1299 Ocean
Ave.,
Suite 900, Santa Monica, CA. 90401, or at such other place or on such other
date as shall be mutually agreed to in writing by the parties. The date on
which the Closing occurs is herein referred to variously as the "Closing Date"
and the "Closing". At the Closing:
2.01 Sellers. Sellers shall deliver or cause to be delivered to
JMCorp:
(a) certificates representing the JMC Shares duly endorsed for
transfer and conveyance to JMCorp,
(b) a corporate resolution of the Board of Directors and
stockholders of JMC approving the transactions contemplated by this Agreement.
(c) a list of all accounts in which the funds or other assets of JMC
are deposited, and
(d) the corporate records, including the charter documents, minutes
of meetings and actions of the board of directors and minute of meetings and
actions of the stock holders, the corporate seal and all books of accounts of
JMC, and all records, papers, documents, and evidence of conveyance,
leasehold or interest in and to that property known as the Juina-Aripuana
Diamond Property 1000, DNPM #866.787/86 in the State of Mato Grosso, Brazil
comprised of, a 100% working interest, retaining a 70% net revenue interest
(the "Mining Property").
2.02 JMCorp. JMCorp shall deliver or cause to be delivered to the
respective Sellers:
(a) Stock certificate(s) in the name of each Seller representing in
the aggregate the total number of JMCorp Shares described in Section 1.01
(each Seller will receive a certificate for JMCorp Shares representing the same
number of JMC Shares conveyed to JMCorp by such Seller),
(b) a corporate resolution of the Board of Directors and the
Stockholders of JMCorp approving the transactions contemplated by this
Agreement,
(c) the resignation of each Officer and Director of JMCorp,
(d) a list of all accounts in which funds or other assets of JMCorp
are deposited, and
(e) the corporate records including the charter documents, minutes
of meetings and actions of the Board of Directors and minutes of meetings and
actions of the stockholders, the corporate seal and all books and accounts of
JMCorp.
3. Representations and Warranties of JMC and Sellers
Except as set forth in the JMC Disclosure Schedule delivered to
JMCorp on the date hereof, and signed by the President and Secretary of JMC
(the
"JMC Disclosure Schedule"), the sections of which are numbered to correspond
to the subsection numbers of this Agreement, JMC and each of the Sellers
hereby represents and warrants to JMCorp as follows:
3.01 Organizations, Qualification.
(a) JMC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada. JMC has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted.
(b) JMC has delivered to JMCorp complete and accurate copies of
its Articles of Incorporation and Bylaws, each as amended, minutes of all its
directors' and shareholders meetings, and a shareholder list correctly
setting forth the record ownership as of the date of this Agreement of all
outstanding shares.
3.02 Capitalization. As of the Closing Date, JMC shall have
authorized
capital stock of Twenty-Five Million (25,000,000) shares of common stock, of
which Six Million (6,000,000) shares will be issued and outstanding as of such
date. All such outstanding shares of JMC capital stock have been duly
authorized, validly issued, fully paid and non-assessable and are not subject
to preemptive rights created by statute, the Articles of Incorporation or
Bylaws of JMC or any agreement to which JMC is a party or by which it is
bound.
3.03 Subsidiary. JMC does not have and has never had any
subsidiaries
and does not directly or indirectly own any equity interest in, or any
interest
convertible into or exchangeable for any equity or similar interest in, any
corporation, partnership, joint venture or other business association or
entity.
3.04 Authority Relative to this Agreement. JMC has full corporate
power
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby and thereby have
been duly and validly authorized by the Board of Directors.
3.05 Financial Statements of JMC. JMC being a recently organized
entity, has no audited financial statements.
3.06 Undisclosed Liabilities. JMC does not have any material
liabilities, whether absolute, accrued, contingent, or otherwise, and whether
due or to become due.
3.07 Properties and Inventories. JMC has good and marketable title
to,
valid lease hold interests in or other valid right to use all of the material
assets used in its operations or necessary for the conduct of its business,
subject to no security interests, licenses, encumbrances, restrictions or
adverse claims, except as disclosed in schedule 3.07 attached hereto.
3.08 Compliance with Laws. JMC has substantially complied with all
laws,
regulations, or orders of any governmental agency or entity applicable in any
material respect to the conduct of its business.
3.09 Investment Representations. Sellers understand and acknowledge
that
JMCorp Shares will not be registered under the Securities Act nor qualified
under the securities laws of any state or province, by virtue of exceptions
thereto. Each of the Sellers (either alone or in conjunction with his or her
professional advisors) has such experience and knowledge in investment,
financial and business matters in investments similar to the stock of the
JMCorp
that they are capable of protecting their own interest in connection
therewith
and qualifying for such exemptions. Further, each Seller is acquiring the
JMCorp
Shares for investment purposes only for Sellers own account, and not on
behalf
of any other person nor with a view to, or for resale in connection with any
distribution thereof. Sellers understand that the certificates representing
the JMCorp Shares will be stamped with a legend substantially in the
following
form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
AND
MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL OR
OTHER
EVIDENCE SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED.
3.10 Value of JMCorp Shares. Each Seller has received and reviewed
to
such Seller's satisfaction such documents and corporate and financial records
of JMCorp, and has had answered all questions with regard thereto that such
Seller deemed necessary or appropriate to evaluate the business, operations
and
assets of JMCorp and the value of its common stock. Sellers are relying
solely
on their own evaluation and analysis in determining the value of the JMCorp
Shares and not on any representations of value or worth made by JMCorp.
3.11 Tax Consequences. Although the exchange of shares of JMC and
JMCorp contemplated by this Agreement is intended to be a "tax free
reorganization" pursuant to section 368(a)(1)(c) of the Internal Revenue Code
of 1986, as amended, and in reliance in part on Revenue Ruling 67-274, Seller
understands that no assurance is given by JMCorp that such transactions shall
be deemed by the Internal Revenue Code to be a transaction upon which no gain
or
loss to such Seller as a result of the transactions contemplated by this
Agreement.
4. Representations and Warranties of JMCorp
JMCorp hereby represents and warrants to the Sellers as follows:
4.01 Capitalization. The authorized capital stock of JMCorp consists
of
Ten Million (10,000,000) shares of preferred stock, par value $0.021 and
Fifty
Million (50,000,000) shares of common stock, par value $0.021 of which Two
Million, Three Hundred Thirty-Two Thousand, Five Hundred Seventy-Two
(2,332,572)
shares of common stock and no shares of preferred stock are issued and
outstanding, all of which outstanding shares are duly authorized, validly
issued, fully paid and non-assessable. There is no commitment, plan or
arrangement to issue and no outstanding options, warrants or other rights
calling for the issuance of any share of capital stock of JMCorp or any
security
or other instrument convertible into, exercisable for or exchangeable for
capital stock of JMCorp, other than as provided in this Agreement. There is
outstanding no security or other instrument convertible into or exchangeable
for capital stock of JMCorp.
4.02 Issuance and Delivery of JMCorp Shares. The issuance and
delivery
of the JMCorp Shares has been duly authorized, and such shares, when issued
and
delivered in accordance with the terms of this Agreement, shall be duly
authorized, validly issued, fully paid and non-assessable.
4.03 Organization. JMCorp is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada, and has
the
corporate power and authority to its own properties and to carry on its
business
as now being conducted.
4.04 Authority, Binding Agreement. This Agreement has been approved
by
the Board of Directors of JMCorp. No consents, authorizations or approvals,
whether of a governmental agency or instrumentality or otherwise, are
necessary
in order to enable JMCorp to enter into and perform this Agreement. This
Agreement constitutes legal, valid and binding obligations of JMCorp, and is
enforceable against JMCorp in accordance with its terms.
4.05 Financial Conditions. The business, assets, liabilities and
financial condition of JMCorp are, in all material respects, as set forth in
the
financial statements and other representations attached hereto as Schedule
4.05,
which financial statements (1) have been prepared in conformity with
generally
accepted accounting principles, consistently applied, and (2) do not fail to
state any material fact necessary to make the information therein not
misleading.
4.06 Litigation. There is no suit, action or other legal or
administrative proceed pending or threatened against JMCorp, and to its
knowledge, no circumstances exists or have occurred which may lead to any
suit,
action, proceeding or investigation which could materially and adversely
affect
its business, assets or financial condition. JMCorp has received no notice
from
any federal, state or local governmental agency asserting any violation by
JMCorp of any law, ordinance or regulation.
4.07 Subsidiaries. JMCorp does not have and has never had any
subsidiaries and does not directly or indirectly own any equity interest in
or
any interest convertible into or exchangeable for any equity or similar
interest
in any corporation, partnership, joint venture or other business association
or
entity.
4.08 Consents and Approvals; No Violation. Except as may be required
by
the Securities Act of 1933, as amended (the "Securities Act"), state
securities
laws and applicable corporate law, there is no requirement applicable to
JMCorp
to make any filing with or to obtain any permanent authorization, consent or
approval of any governmental or regulatory authority as a condition to the
lawful consummation by JMCorp of the transactions contemplated by this
Agreement.
4.09 Undisclosed Liabilities. JMCorp does not have any material
liabilities, whether absolute, accrued, contingent or otherwise, and whether
due
or to become due, except for those liabilities which (1) are accrued and
fully
reserved against in the financial statements of JMCorp described in Section
4.05
of this Agreement or (2) are of a normally recurring nature and were incurred
after September 30, 1997, in the ordinary course of business consistent with
past practice. Subsequently to September 30, 1997, JMCorp does not have any
liabilities of a type required to be disclosed or reflected in financial
statements and which either (1) are not in the ordinary course of a business
transaction which has been disclosed in writing to Sellers or (2) exceed
$5,000.00 with respect to any single transaction or single series of related
transactions.
4.10 Absence of Changes. Since September 30, 1997, there has not been
any material adverse changes in the business, assets, liabilities, financial
condition, results of operation or prospects of JMCorp taken as a whole.
4.11 Purchase, Sale and other Agreements. JMCorp is not a party to
any
contract or agreement, oral or written, which may materially effect its
financial statements.
4.12 Compliance with the Laws. JMCorp has substantially complied
with
all laws, regulations, judgments, decrees or orders of any court or
governmental
agency or entity applicable in any material respects to the conduct of its
business.
4.13 Taxes. All United States, foreign, state and local tax returns
and
reports (collectively the "Returns") required to be filed to date with
respect
to the operations of JMCorp will be filed upon completion of the audited
financial statements and will be accurately prepared in all material respects
and duly filed.
4.14 Review of Information. JMCorp has such knowledge and
experience
in investment, financial and business matters that is capable of protecting
its own interest. JMCorp has been provided complete access to all books and
records
of JMC and is entering into this transaction based solely upon its business
knowledge and experience and written information provided to JMCorp by JMC.
JMCorp is not relying upon any oral representations of any officer, director,
agent or employee of JMC in entering into this transaction.
5. Conditions to Closing
The obligations of the parties hereunder are subject to the
satisfaction
at or by the Closing of each of the conditions set forth below. Any of such
conditions may be waived by the other party but only in writing.
5.01 Compliance and Terms. On the Closing Date, all the terms,
conditions and covenants of this Agreement to be complied with and performed
by
the respective parties shall have been complied with and performed in all
material respects.
5.02 No Material Change in JMC. There shall be no material change in
the business, assets, liabilities or financial condition of JMC from that set
forth in its financial statement.
5.03 No Material Change in JMCorp. There shall be no material
change
in the business, assets, liabilities or financial condition of JMCorp from
that
set forth in its financial statements.
6. Miscellaneous
6.01 Other Documents. Each party shall, at any time after the
Closing
upon the request of the other party, execute and deliver to the requesting
party
such documents or instruments of conveyance, license or assignment or take
such
other action as is reasonably necessary to complete the transfer of the JMC
Shares and the JMCorp Shares or other transactions contemplated by this
Agreement.
6.02 Costs. Except as otherwise specifically provided herein, JMCorp
shall pay the Closing and transfer costs applicable to this Agreement and the
transfer of JMCorp Shares hereunder. Each party hereto shall bear the costs
of
their respective counsel and all other legal fees and costs related thereto.
Both JMCorp and Sellers each hold the other harmless from any obligation for
the
payment of any finders fees or commissions in connection with the
transactions
contemplated by this Agreement as a result of any action of the indemnifying
party.
6.03 Invalidity, Modification and Waiver. If any provisions of this
Agreement shall be held to be invalid or void, the remaining provisions shall
nevertheless remain in effect. No provisions of this Agreement may be
modified
and the performance or observance thereof may not be waived except by written
agreement of the parties affected thereby. No waiver of any violation or
nonperformance of any provision of this Agreement shall be deemed to be a
waiver
of any subsequent violation or nonperformance of the same or any other
provision
of this Agreement.
6.04 Disputes, Choice of Law. This Agreement, the performance of the
parties hereunder and any disputes related hereto shall be governed by the
laws
of the State of Nevada and subject to the exclusive jurisdictions of the
courts
therein. If either party shall initiate a legal proceeding to enforce its
rights
hereunder, the prevailing party in such legal proceedings shall be entitled
to
recover from the other party all costs, expenses and reasonable attorney's
fees
incurred in connection with such proceedings.
6.05 Abandonment. If this Agreement shall fail to Close as provided
for
in Section 2 as a result of a failure of any of the conditions precedent set
forth in Section 5, all further obligations of the parties hereto under this
Agreement shall terminate without further liability, and each party shall
bear
its own costs incident to the negotiation, preparation and anticipated
Closing
of this Agreement. In such event, each party shall return any data, material
or
assets of the other party received by it in contemplation of the Closing.
6.06 Entire Agreement. This Agreement is and represents the entire
agreement between the parties hereto with respect to the subject matter
hereof
and supersedes any prior or contemporaneous discussions or agreement related
thereto.
6.07 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be originals and enforceable, and together
shall constitute a single agreement.
IN WITNESS WHEROF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized representative as of the date
first written above.
By:/s/ Ryan Barnard
Ryan Barnard, President
Juina Mining Corporation
By: /s/Noel M. Frenzel
Noel M. Frenzel, President By
Juina Mining Company, Inc.
By /s/Noel M. Frenzel
Noel M. Frenzel, An Individual
By /s/Noel M. Frenzel
Noel M. Frenzel,
Custodian for the Benefit of
Designees to be Named
<PAGE>
EXHIBIT 3.(i) ARTICLES OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION
RESTATED ARTICLES OF INCORPORATION
OF
INTERNATIONAL BREWING AND MANUFACTURING, INC.
THE UNDERSIGNED natural person, who is at least eighteen
years
of age, for the purpose of forming a private corporation under and subject to
the provisions of NRS ñ78.010, et seq., hereby adopts the following
restated
articles of incorporation.
ARTICLE I
NAME AND BUSINESS ACTIVITIES. The name of the corporation
shall
be JUINA MINING CORPORATION (hereafter referred to as the "Corporation"). The
purpose of the Corporation shall be to engage in any lawful activity and any
activities necessary, convenient, or desirable to accomplish such purposes,
not
forbidden by law or by these articles of incorporation.
ARTICLE 2
RESIDENT AGENT. The resident agent of the Corporation shall
be
Roxanne L. Paine, whose address is 230 Bullion Rd., Dayton, Nevada 89403. The
board of directors may establish, from time to time, other places of business
within and without the State of Nevada for the conduct of its business.
ARTICLE 3
SHARES OF STOCK. The total number of authorized shares of the
Corporation is 60,000,000 non-assessable shares, 50,000,000 shares of which
shall be common stock with a par value of $0.021 per share, and 10,000,000
shares of which shall be preferred stock with a par value of $0.021 per
share.
The consideration for the issuance of shares may be paid in whole or in part,
in
money, labor, services, property, or other thing of value. When payment of
the
consideration for the shares has been received by the Corporation, such
shares
shall be deemed to be fully paid. The judgment of the board of directors as
to
the value of the consideration for the shares shall be conclusive.
ISSUANCE OF PREFERRED STOCK IN SERIES. The Preferred Stock
may be issued from time to time in one or more series, the shares of each
series to
have such voting powers, full or limited, and such designations, preferences
and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions thereof as are stated and expressed herein or in
the
resolution or resolutions providing for the issue of such series adopted by
the
board of directors.
AUTHORITY OF THE BOARD OF DIRECTORS. Authority is hereby
expressly granted to the board of directors to the limitations prescribed by
law, to authorize the issue of one or more series of Preferred Stock, and
with respect to each such series to fix by resolution or resolutions
providing
for
the issue of each series the number of shares of such series, the voting
powers,
full or limited, preferences and relative, participating, optional or other
special rights and the qualifications, limitations of restrictions thereof.
The
authority of the board of directors with respect to each series of Preferred
Stock shall include, but not be limited to, the determination or fixing of
the
following:
(a) The number of shares of such series;
(b) The designation of such series;
(c) The dividends of such series the conditions and dates upon which such
dividends shall bear to the dividends payable on any other class or classes
of
stock and whether such dividends shall be cumulative or non-cumulative;
(d) Whether the shares of such series shall be subject to redemption, the
times,
prices, rates, adjustments, and other terms and conditions of such redemption;
(e) The terms and amounts of any sinking fund provided for the purchase or
redemption of the shares of such series;
(f) Whether or not the shares of such series shall be convertible into or
exchangeable for shares of any other class or classes or of any other series
of
any class or classes of stock of the corporation and, if provisions be made
for
conversion or exchange, the times, prices, rates, adjustments, and other
terms
and conditions of such conversion or exchange;
(g) The extent, if any, to which the holders of the shares of such series
shall be entitled to vote with respect to the election of directors or
otherwise, including the right to elect a specified number or class of
directors, the number or percentage of votes required for certain actions,
and
the extent to which a vote by class or series shall be required for certain
actions;
(h) The restrictions, if any, on the issue or reissue of any Preferred Stock;
(i) The rights of the holders of the shares of such series upon the
dissolution
of, or upon the distribution of the assets of, the corporation; and
(j) The extent, if any, to which any committee of the board of directors may
fix
the designations and any of the preferences or rights of the shares of such
series relating to dividends, redemption, dissolution, and distribution of
assets of the corporation or the conversion into or exchange of such shares
for
shares of any other class or classes of stock of the corporation or -any
other
series of the same, or fix the number of shares of any such series or
authorize
the increase or decrease in the shares of such series.
ARTICLE 4
DIRECTORS. The business and affairs of the Corporation shall
be conducted by a board of directors. The number of directors shall be set
forth in the bylaws of the Corporation and may be changed from time to time.
Directors need not be shareholders of the Corporation nor residents of Nevada,
but must be at least 18 years old.
There shall be three (3) directors. The following persons
shall constitute the board of directors until their successors are elected:
NAME
Ryan Barnard 10550 SW Allen Blvd. #100
Beaverton, Oregon 97005
Roxanne L. Paine 230 Bullion Rd.
Dayton, NV 89403
Paul Stringer 10550 SW Allen Blvd. #100
Beaverton, Oregon 97005
The directors may, at any time prior to the first meeting of the
board of directors, elect or appoint additional directors, not exceeding the
number set forth in the bylaws, to serve until their successors are elected
and qualified. Thereafter, vacancies on the board of directors, however
arising, may be filled at any time and from time to time by the remaining
directors.
The successors of the first board of directors shall be elected
at the annual meeting of the shareholders to be held on the date and at the
time provided in the bylaws. The directors shall hold office for one year, or
until they are removed or their successors shall have been duly elected and
qualified, as provided in the bylaws.
The board of directors shall elect or appoint a president, a
secretary, a treasurer, a resident agent, and such other officers or agents
for
the administration of the business of the Corporation as it shall from time
to time determine. Such persons need not be shareholders of the Corporation
nor members of the board of directors.
ARTICLE 5
DIRECTORS' CONTRACTS. No contract or other transaction between this
Corporation and one or more of its directors or any other person,
partnership,
corporation, firm, association, or entity in which one or more of this
Corporation's directors are directors or officers or are financially
interested,
shall be either void or voidable because of such relationship or interest, or
because such director or directors are present at the meeting of the board of
directors, or a committee thereof, which authorizes, approves, or ratifies
such
contract or transaction, or because his or their votes are counted for such
purpose, and each such director of this Corporation is hereby released from
liability which might otherwise exist from such contract if- (a) the fact of
such relationship or interest is disclosed or known to the board of directors
or
committee which authorizes, approves, or ratifies the contract or
transaction;
(b) the contract or transaction is approved by sufficient vote or consent
without counting the votes or consents of such interested director; (c) the
fact
of such relationship or interest is disclosed or known to the shareholders
entitled to vote and they authorize, approve, or ratify such contract or
transaction by vote or written consent; or (d) the contract or transaction is
fair or reasonable to the corporation. If the fact of such relationship or
interest is known, then the common or interested directors may be counted in
determining the presence of a quorum at the meeting of the board of directors
or
committee thereof which authorizes, approves, or ratifies such contract or
transaction.
ARTICLE 6
LIMITED LIABILITY OF OFFICERS AND DIRECTORS. No officer or
director of the Corporation shall be liable to the corporation or its
shareholders for damages for breach of a fiduciary duty as a director or
officer
other than: (a) acts or omissions which involve intentional misconduct,
fraud, or a knowing violation of the law; or (b) the payment of dividends in
violation of NRS ;78-300.
The Corporation may purchase and maintain insurance or make
other financial arrangements on behalf of any person who is or was a
director,
officer, employee, or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee, or agent of
another
corporation, partnership, joint venture, trust, or other enterprise for any
liability asserted against him and liability and expenses incurred by him in
his
capacity as a director, officer, employee, or agent, or arising of his status
as
such, whether or not the Corporation has the authority to indemnify him
against
such liability or expenses.
The Corporation shall indemnify all of its officers and
directors, past, present and future, against any and all expenses incurred by
them, and each of them, including, but not limited to, legal fees, judgments,
and penalties which may be incurred, rendered or levied in any legal action
or
administrative proceeding brought against them for any act or omission
alleged
to have been committed while acting within the scope of their duties as
officers
or directors of the Corporation. The expenses of officers and directors
incurred
in defending any legal action or administrative proceeding must be paid by
the
corporation as they are incurred and in advance of the final disposition of
the
action or proceeding upon receipt of an undertaking by or on behalf of the
officer or director to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he/she is not entitled to be indemnified
by
the corporation. Such right of indemnification shall not be exclusive of any
other rights of indemnification which the officers and directors may have or
hereafter acquire. Without limitation of the foregoing, the board of
directors
may adopt bylaws from time to time to provide the fullest indemnification
permitted by the laws of the State of Nevada.
ARTICLE 7
ASSESSMENTS. To the extent permitted by law, the private
property of each and every shareholder, officer, and director of the
Corporation, real or personal, tangible or intangible, now owned or hereafter
acquired by any of them, is and shall be forever exempt from all debts and
obligations of the Corporation of any kind whatsoever. No paid-up stock and
no
stock issued as fully paid-up shall be subject to any assessment to pay any
debt
of the Corporation.
ARTICLE 8
NO PREEMPTIVE RIGHTS. Except as may otherwise be provided by
the
board of directors of the Corporation, no holder of any shares of the stock
of
the Corporation shall have any preemptive right to purchase, subscribe for,
or
otherwise acquire any shares of stock of the Corporation of any class now or
hereafter authorized, or any securities exchangeable for or convertible into
any
such shares, or any warrants or other instruments evidencing rights or
options to subscribe for, purchase, or otherwise acquire such shares.
ARTICLE 9
NO CUMULATIVE VOTING. Election of directors of the
corporation
shall be by majority vote of the shareholders. There shall be no cumulative
voting.
ARTICLE 10
INCORPORATOR. The name and address of the incorporator
executing these articles of incorporation is as follows:
NAME
Roxanne L. Paine 230 Bullion Rd.
Dayton, Nevada 89403
ARTICLE 11
AMENDMENT. These articles of incorporation may be amended by
the
affirmative vote of a majority of the shares entitled to vote on each such
amendment.
IN WITNESS WHEREOF, the undersigned President and Secretary
of
Ahe Corp ration has executed these Restated Articles of Incorporation on this
4th day of December 1997.
/S/ Ryan Barnard
Ryan Barnard, President
/S/ Ryan Barnard
Ryan Barnard, Secretary
STATE OF OREGON
COUNTY OF WASHINGTON
On this 4th day of December 1997, before me personally appeared Ryan Barnard,
who acknowledged to me that he executed the above Restated Articles of
Incorporation.
/s/ Valerie A. Sparks
VALERIE A. SPARKS, NOTARY PUBLIC
THIS FORM SHOULD ACCOMPANY RESTATED ARTICLES
OF INCORPORATION FOR A NEVADA CORPORATION
1. Name of corporation: International Brewing and Manufacturing, Inc.
2. Date of adoption of Restated Articles: December 4, 1997
3. Please indicate what changes have been made:
(a) Was there a name change? Yes X No 0 If yes what is the new name?
Juina Mining Corporation
(b) Did you change the resident agent? Yes 0 No X
(c) Did you change the purposes? Yes 0 No X
(d) Did you change the capital stock? Yes X No 0 If yes, what is the new
capital stock? 50,000,000 shares of Common stock with a par value $0.021 and
10,000,000 shares of Preferred stock with a par value $0.021
(e) Did you change the directors? Yes 0 No X If yes, indicate the change:
(f) Did you add the director's liability provision? Yes X No 0
(g) Did you change the period of existence? Yes 0 No X If yes, what is the
new existence?
(h) If none of the above apply, and you have restated the articles, how
did
you change your articles?
/s/ Ryan Barnard 12-4-97
Ryan Barnard, President & Secretary Date
State of Oregon
County of Washington
On the 4th day of December 1997, Ryan Barnard personally appeared before me,
Marsha Ann English, a notary public, who acknowledged that he executed the
above
instrument.
/s/ Marsha Ann English
Marsha Ann English, Notary Public
OFFICIAL SEAL
MARSHA ANN ENGLISH
NOTARY PUBLIC-OREGON
COMMISSION NO. 301289
My COMMISSION EXPIRES MAY 15,2001
EXHIBIT 3.(ii) BY-LAWS
BYLAWS
OF
JUINA MINING CORPORATION
ARTICLE I
Offices
The principal office of the corporation shall be located at
10550 SW Allen Blvd. #100, Beaverton, Oregon 97005. The corporation may have
such other offices, either within or without the State of Nevada, as the
Board
of Directors may designate or as the business of the corporation may from
time
to time require.
The registered office of the corporation required by the
Nevada
Business Corporation Act to be maintained in the State of Nevada may be, but
need not be, identical with principal office in the State of Nevada, and the
address of the registered office may be changed from time to time by the
Board of Directors.
ARTICLE 1
Shareholders
Section 1. Annual Meeting. The annual meeting of the
shareholders shall be held on First Monday in June at 9:30 AM, for the purpose
of electing directors and for the transactions of such other business as may
come before meeting. If the day fixed for the annual meeting shall be a legal
holiday in the State of Nevada, such meeting shall be held on the next
succeeding business day. Failure to hold the annual meeting at the designated
time shall not work a forfeiture or dissolution of the corporation.
Section 2. Failure to hold Annual Meeting. If the annual meeting
is not held at the designated time, the President or the Board of Directors may
call the annual meeting at a time fixed by them not more than sixty days after
such designated time by proper notice designating the meeting as the annual
meeting. If the annual meeting is not held at the designated time or during
the
sixty-day period thereafter, the annual meeting may be called by the holders
of
not less than one-tenth of all the shares entitled to vote at the meeting. In
such event, notice shall be given not more than fifteen days after the
expiration of such sixty-day period. Such notice shall fix the time of the
meeting at the earliest date permissible under the applicable notice
requirements.
Section 3. Special Meeting. Special meetings of the
shareholders, for any purpose or purposes, unless otherwise prescribed by
statute, may be called by the President or by the Board of Directors, and
shall be called by the President at the request of the holders of not less
than
one-tenth of all the outstanding shares of the corporation entitled to vote
at the meeting.
Section 4. Place of Meeting. The Board of Directors may
designate any place, either within or without the State of Nevada, as the
place
of meeting for any annual meeting or for any special meeting called by the
Board
of Directors. A waiver of notice signed by all shareholders entitled to vote
to
a meeting may designate any place, either within or without the State of
Nevada,
as the place for holding of such meeting. If no designation is made, or if a
special meeting is otherwise called, the place of meeting shall be at the
principal office of the corporation in the State of Nevada.
Section 5. Notice of Meeting. Written notice stating the
place,
day and hour of the meeting and, in case of special meeting the purpose or
purposes for which the meeting is called, shall be delivered not less than
ten
nor more than fifty days before the date of the meeting, either personally or
by
mail, by persons calling the meeting, to each shareholder of record entitled
to
vote at such meeting. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail, addressed to the shareholder's
address
as it appears on the stock transfer books of the corporation, with first
class
postage paid.
Section 6. Closing of Transfer Books or Fixing of Record
Date. For the purpose of determining shareholders entitled to notice of or
vote at
any meeting of shareholders or any adjournment of it, or shareholders
entitled
to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors of the
corporation may provide that the stock transfer books shall be closed for a
period but not to exceed, in any case, fifty days. If the stock transfer
books
shall be closed for the purpose of determining shareholders entitled to
notice
of or to vote at a meeting of shareholders, such books shall be closed for at
least ten days immediately preceding such meeting. In lieu of closing the
stock
transfer books, the Board of Directors may fix in advance a date as the
record
date for any such determination of shareholders, such date in any case to be
for
more than fifty days and, in case of a meeting of shareholders, not less than
ten days prior to the date on which the particular action, requiring such
determination of shareholders, is to be taken. If the stock transfer books
are
not closed and no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or
shareholders
entitled to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board of
Directors
declaring such dividend is adopted, as the case may be, shall be the record
date
for such determination of shareholders. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as provided in
this section, such determination shall apply to any adjournment of such
meeting.
Section 7. Voting Lists. The officer or agent having charge
of
the stock transfer books for shares of the corporation shall make, at least
ten
days before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting, or any adjournment of it, arranged in
alphabetical order, with the address of the shareholders and the number of
shares held by each, which list, for a period of ten days prior to such
meeting,
shall to kept on file at the registered office of the corporation and shall
be
subject to inspection by any shareholder at any time during usual business
hours. Such list shall also be produced and kept open at the time and place
of
the meeting and shall be subject to the inspection of any shareholder during
the
whole time of the meeting. The original stock transfer book shall be prima
facie
evidence as to who are the shareholders entitled to examine such list or
transfer books or to vote at any meeting of shareholders.
Section 8. Quorum. Unless otherwise provided in the
corporation's Article of Incorporation, a majority of the outstanding shares
of
the corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. If less than a majority of
the
outstanding shares are represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further notice
until a quorum is present or represented. At such adjourned meeting during
which
a quorum shall be present or represented, any business may be transacted
which
might have been transacted at the meeting as originally notified. The
shareholders present at duly adjournment notwithstanding the withdrawal of
enough shareholders to leave less than a quorum.
Section 9. Proxies. At all meetings of shareholders, a
shareholder may vote in person or by proxy executed in writing by the
shareholders or by the shareholder's duly authorized attorney in fact. Such
proxy shall be filed with the Secretary of the Corporation before or at time
of
the meeting. No proxy shall be valid after eleven months from the date of its
execution unless otherwise provided in the proxy.
Section 10. Voting of Shares. Unless otherwise provided in
the
corporation's Article of Incorporation, each outstanding share entitled to
vote
shall be entitled to one vote upon each matter submitted to a vote at a
meeting
of shareholders.
The vote of the holders of a majority of the shares present
and
entitled to vote at any duly organized meeting shall decide any question
unless
the vote of a greater number shall be required by law or the Articles of
Incorporation.
No cumulative voting for directors shall be permitted.
Section 11. Voting of Shares by Certain Holders. Shares
standing
in the name of another corporation may be voted by such officer, agent or
proxy
as the Bylaws of such corporation may prescribe, or, in the absence of such
provision, as the Board of Directors of such corporation may determine.
Shares held by an administrator, executor, guardian of
conservator may be voted by such person, either in person or by proxy,
without
a transfer of such shares into such person's name. Shares standing in the
name
of
a trustee or custodian may be voting by such person, either in person or by
proxy, but no trustee or custodian shall be entitled to vote shares held by
such
person without a transfer of such shares into such person's name.
Shares standing in the name of a receiver may be voted by
such
receiver, and shares held by or under the control of a receiver may be voted
by
such receiver without their transfer into the receiver's name if authority to
so
vote is contained in an appropriate order of the court by which such receiver
was appointed.
A shareholder whose shares are pledged shall be entitled to
vote
such shares until the shares have been transferred into the name of the
pledgee,
and thereafter the pledgee shall be entitled to vote the shares so
transferred.
Shares of its own stock belonging to the corporation or held
by
it in a fiduciary capacity shall not be voted, directly or indirectly, at any
meeting, and shall not be counted in determining the total number of
outstanding
shares at any given time.
Section 12. Informal Action by Shareholders. Any action
required
to be taken at a meeting of the shareholders, or any other action which may
be
taken at a meeting of the shareholders, may be taken without a meeting if a
consent in writing, setting forth the action to taken, shall be signed by all
shareholders entitled to vote with respect to the subject matter of the
action.
ARTICLE III
Board of Directors
Section 1. General Powers. The business and affairs of the
corporation shall be managed by its Board of Directors.
Section 2. Number, Tenure and Qualifications. The number of
directors of the corporation shall be minimum of 1 and maximum of 7 as
determined from time to time by the Board of Directors. Each director shall
hold
office until the next annual meeting of shareholders and until the director's
successor shall have been duly elected and qualified. Directors need not be
residents of the State of Nevada or shareholders of the corporation.
Section 3. Regular Meeting. A regular meeting of the Board of
Directors shall be held without other notice than this bylaw, immediately
after,
and at the same place as, the annual meeting of shareholders. The Board of
Directors may provide by resolution the time and place, either within or
without
the State of Nevada, for the holding of additional regular meeting without
other
notice than such resolution.
Section 4. Special Meeting. Special meetings of the Board of
Directors may be called by or at the request of the President or any
director.
The person or persons authorized to call special meetings of the Board of
Directors may fix any place, either within or without the State or Nevada, as
the place for holding any special meeting of the Board of Directors called by
him, her or them.
Section 5. Telephone Conference Meeting. Any regular or
special
meeting of the board may be by means of conference telephone or similar
communications equipment by means of which all person participating in the
meeting can hear each other. Participation in such a meeting shall constitute
presence in person at the meeting.
Section 6. Notice of Meeting. Notice of any special meeting
shall be given at least 5 days prior to such meeting written notice delivered
personally or mailed to each director at the director's business address, or
by
telegram. If mailed, such notice shall be deemed to be delivered when
deposited
in the United States mail so addressed, with first class postage paid. If
notice
is given by telegram, such notice shall be deemed to be delivered when the
telegram is delivered to the telegraph company. Any director may waiver
notice of meeting. The attendance of a director at a meeting shall constitute
a
waiver of notice of such meeting, except where a director attends a meeting
for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
Board
of Directors need be specified in the notice or waiver of notice of such
meeting.
Section 7. Quorum. A majority of the number of directors
fixed
by Section 2 of this Article III shall constitute a quorum for the
transaction
of business at any meeting of the Board of Directors. If less than a majority
is
present at a meeting, the director or directors present may adjourn the
meeting from time to time without further notice. The directors present at a
duly
adjournment, notwithstanding the withdrawal of enough directors to leave less
than a quorum.
Section 8. Manner of Acting. The act of the majority of the
directors presents at a meeting at which a quorum is present shall be the act
of
the Board of Directors, except as provided in Section 7 of this Article III
and in Article XI and Article XII.
Section 9. Removal. All or any number of the directors may be
removed, with or without cause, by a vote of the majority of the shares then
entitled to vote at an election of directors, or at a special meeting of the
shareholders called for that purpose.
Section 10. Vacancies. Any vacancy occurring in the Board of
Directors may be filled by the affirmative vote of a majority of the
remaining
directors though less than a quorum of the Board of Directors, or by a sole
remaining director. A director elected to fill a vacancy shall be elected for
the expired term of the director's predecessor in office. Any directorship to
be
filled by election at an annual meeting or at a special meeting of
shareholders
called for that purpose unless otherwise provided in the Articles of
Incorporation.
Section 11. Compensation. By resolution of the Board of
Directors, each director may be paid the director's expense, if any, of
attendance at each meeting of the Board of Directors, and may be paid a
stated
salary as director or fixed sum for attendance at each meeting of the Board
of
Directors or both. No such payment shall preclude any director from serving
the
corporation in any other capacity and receiving compensation for such service.
Section 12. Presurnl2tion of Assent. A director of the
corporation who is present at a meeting of the Board of Directors at which
action on any corporation matter is taken shall be presumed to have assented
to
the action taken unless the director's dissent shall be entered in the
minutes
of the meeting or unless the director shall file his or her written dissent
to
the action with the person acting as the Secretary of the meeting before the
adjournment of the meeting. Such right to dissent shall not apply to a
director
who voted in favor of the action.
Section 13. Action Without a Meeting. Any action that may be
taken at a meeting of the directors may be taken without a meeting if a
consent
in writing, setting forth the action so taken, shall be signed by all
directors.
ARTICLE IV
Officers
Section 1. Number. The officers of the corporation shall be a
President, a President and/or General Manager, one or more Vice Presidents
(the
number to be determined by the Board of Directors), a Secretary and a
Treasurer,
each of whom shall be elected by the Board of Directors. Such other officers
and
assistant officers and agents as may be deemed necessary may be elected or
appointed by the Board of Directors. Any two or more officers may be held by
the
same person.
Section 2. Election and Term of Office. The officers of the
corporation to be elected by the Board of Directors shall be elected annually
by
the Board of Directors at the first meeting of the Board of Directors held
after
each annual meeting of he shareholders. If the election of officers shall not
be
held at such meeting, such election shall be held as soon thereafter as may
be
convenient. Each officer shall hold office until his or her successor shall
have
been duly elected and shall have qualified or until the officer's death or
until
he or she shall resign or shall have been removed in the manner provided in
this
Article IV.
Section 3. Removal. Any officer or agent may be removed by
the
Board of Directors whenever, in its judgment, the best interests of the
corporation would be served by such removal, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Election
or appointment of an officer or agent shall not itself create contract rights.
Section 4. Vacancies. A vacancy in any office because of
death,
resignation, removal, disqualification or otherwise may be filled by the
Board
of Directors for the unexpired portion of the term.
Section 5. President. The President shall be the principal
executive officer of the corporation and, subject to the control of the Board
of
Directors, shall in general supervise and control all the business and
affairs
of the Corporation. The President shall, when present, preside at all
meetings
of the shareholders and of the Board of Directors. The President may sign,
with
the Secretary, Assistant Secretary or any other proper officer of the
corporation so authorized by the Board of Directors, certificates for shares
of
the corporation. The President may also sign deeds, mortgages, bonds,
contracts,
and/or other instruments which the Board of Directors has authorized to be
executed, except in cases where the signing and execution of any of the same
shall be expressly delegated by the Board of Directors or by these Bylaws to
some other officer or agent of the corporation, or shall be required by law
to
be otherwise signed or executed. The President shall, in general, perform all
duties incident to the office of the President and such other duties as may
be
prescribed by the Board of Directors from time to time.
Section 6. Vice President. In the absence of the President or
in
the event of the President's death, inability or refusal to act, the Vice
President (or in the event there is more than one vice president, the vice
presidents in the order designated at the time of their election, or in the
absence of any designation, then in the order of their election) shall
perform
the duties of the President, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the President. Any Vice President
may sign, with the Secretary or an Assistant Secretary, certificates for
shares
of the corporation; and shall perform such other duties as from time to time
may
be assigned to him or her by the, the President and/or General Manager or the
Board of Directors.
Section 7. Secretary. The Secretary shall: (a) keep the
minutes
of the proceedings of the shareholders and of the Board of Directors in one
or
more books provided for that purpose; (b) see that all notices are duly given
in
accordance with the provisions of these Bylaws or as required by law; (c) be
custodian of the corporate records and of the seal of the corporation and see
that the seal of the corporation is affixed to all documents the execution of
which on behalf of the corporation under its seal is duly authorized; (d)
keep
a
register of the mailing address of each shareholder which shall be furnished
to
the Secretary by such shareholder which shall be furnished to Secretary by
such
shareholder; (e) sign, with the President or a Vice President, certificates
for
shares of the corporation, the issuance of which shall have been authorized
by
resolution of the Board of Directors; (f) have general charge of the stock
transfer books of the corporation; and (g) in general charge of the stock
transfer books of the corporation; and (g) in general perform all duties
incident to the office of Secretary and such other duties as from time to
time
may be assigned to him or her by the President or by the Board of Directors.
Section 8. Treasure . The Treasurer shall: (a) have charge
and
custody of and be responsible for all funds and securities of the
corporation;
(b) receive and give receipts for moneys due and payable to the corporation
from
any source whatsoever, and deposit all such moneys in the name of the
corporation in such banks, trust companies or other depositories as shall be
selected in accordance with the provision of Article VI of these Bylaws; and
(c)
in general perform all of the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned to him or her by the
President or by the Board of Directors. If required by the Board of
Directors,
the Treasurer shall give a bond for the faithful discharge of his or her
duties
in such sum and with such surety or sureties as the Board of Directors shall
determine.
Section 9. Assistant Secretaries and Assistant Treasurers.
The
Assistant Secretaries, when authorized by the Board of Directors or the
Bylaws,
may sign, with the President or a Vice President, certificates for shares of
the
corporation the issuance of which shall have been authorized by resolution of
the Board of Directors. The assistant Treasurers shall, respectively, if
required by the Board of Directors, give bonds for the faithful discharge of
their duties in such sums and with such sureties as the Board of Directors
shall
determine. The Assistant Secretaries and Assistant Treasurers shall, in
general,
perform such duties as shall be assigned to them by the Secretary or the
Treasurer, respectively, or by the President or the Board of Directors.
Section 10. Salaries. The salaries of the officers shall
fixed
from time to time by the Board of Directors. No officer shall be prevented
from
receiving such salary by reason of the fact that the officer is also a
director
of the corporation.
ARTICLE V
Certificates for Shares and Their Transfer
Section 1. Certificates for Shares. Certificates representing
shares of the corporation shall be in such form as shall be determined by the
Board of Directors. Such certificates shall be signed by the President or a
Vice
President and by the Secretary or an Assistant Secretary. All certificates
for
shares shall be consecutively numbered or otherwise identified. The name and
address of each person to whom shares (whether or not represented by
certificates) are issued, with the number of shares and date of issue, shall
be
entered on the stock transfer books of the corporation. All certificates
surrendered to the corporation for transfer shall be canceled. No new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and canceled, except that in case of a
lost,
destroyed or mutilated certificate, a new one may be issued for it upon such
terms and indemnity to the corporation as the Board of Directors may
prescribe.
Section 2. Transfer of Shares. Transfer of shares of the
corporation shall be made only on the stock transfer books of the corporation
by
the holder of record of such shares or by his or legal representative, who
shall
furnish proper evidence of authority to transfer, or by his or her attorney
so
authorized by power of attorney duly executed and filed with the Secretary of
the Corporation, and or surrender for cancellation of any certificate for
such
shares. The person in whose name shares stand on the books of the corporation
shall be deemed by the corporation to be owner of such shares for all
purposes.
Section 3. Restrictions on Transfer. No securities of the
corporation and no certificate representing such securities shall be
transferred:
(i) In violation of any law;
(ii) In violation of any restriction on such transfer set forth in the
Articles
of Incorporation or amendments thereto; or
(iii) In violation of any restriction contained in any stock purchase or
buy-sell agreement, right of first refusal or buy, or other agreement, which
agreement has been filed with the corporation and, if any certificates have
been
issued, reference to which restriction is made on the certificates
representing
such securities. The corporation shall not be bound by any restriction not so
filed and noted. The corporation and any party to any such agreement shall
have the right to have a restrictive legend imprinted on such certificates,
whether or not issued, and on any certificates issued in replacement or
exchange.
ARTICLE VI
Contracts, loans, Checks and Deposits
Section 1. Contracts. The Board of Directors may authorize
any
officer or officers, agent or agents, to enter into any contract or execute
and
deliver any instrument in the name of and on behalf of the corporation, and
such
authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of
the
corporation and no evidence of indebtedness shall be issued in its name
unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instance.
Section 3. Checks. Drafts. Etc. All checks, drafts or other
orders for the payment of money, notes or other evidences of indebtedness
issued
in the name of the corporation shall be signed by such officer or officers,
agent or agents of the corporation and in such manner as shall from time to
time
be determined by resolution of the Board of Directors.
Section 4. Deposits. All funds of the corporation not
otherwise
employed shall be deposited from time to time to the credit of the
corporation
in such banks, trust companies or other depositories as the Board of
Directors
may select.
Section 5. Facsimile Signatures. Contracts and agreements of
the
corporation, and endorsements, renewals and amendments of the same, may be
authenticated by facsimiles of the signature of a duly authorized officer of
the
corporation in lieu of a signature of such officer. In event of such
authentication by facsimile signature, such contract or agreement shall be
valid
only if countersigned by an agent or the corporation authorized to execute
such
type of contract or agreement. The validity of any such contract or agreement
shall not be affected in the event that the delivery of such document occurs
after the officer whose signature appears by facsimile is no longer serving
as
an officer of the corporation by reason of death or any other cause.
ARTICLE VII
Indemnification
The corporation shall indemnify to the fullest extent not
prohibited by law any person who was or is a party or is threatened to be
made
a
party to any proceeding (as hereinafter defined) against all expenses
(including
attorney's fees), judgments, fines, and amounts paid in settlement actually
and
reasonably incurred by the person in connection with such proceeding.
Advancement of Expenses
Expenses incurred by a director of officer in defending a
proceeding shall, in all cases, be paid by the corporation in advance of the
final disposition of such proceeding at the written request of such person,
if
the person:
Furnishes the corporation a written affirmation of the
person's
good faith belief that such person is entitled to be indemnified by the
corporation under this article or under any other indemnification rights
granted
by the corporation to such person; and
Furnishes the corporation a written undertaking to repay such
advances to the extent it is ultimately determined by a court that such
person
is not entitled to be indemnified by the corporation under this article or
under
any other indemnification rights granted by the corporation to such person.
Such
advances shall be made without regard to the person's ultimate entitlement to
indemnification under this article of otherwise.
Definition of Proceedings
The term "Proceeding" shall include any threatened, pending
or
completed action, suit or proceeding, whether brought in the right of the
corporation or otherwise and whether of a civil, criminal, administrative or
investigative nature, in which a person may be or may have been involved as a
party or otherwise by reason of the fact that the person is or was a director
of
officer of the corporation of a fiduciary within the meaning of the Employee
Retirement Income Security Act of 1974 with respect to any employee benefit
plan
of the corporation, or is or was serving at the request of the corporation as
a
director, officer or fiduciary of an employee benefit plan of another
corporation, partnership, joint venture, trust or other enterprise, whether
or
not serving in such capacity at the time any liability or expense is incurred
for which indemnification or advancement of expenses can be provided under
this
article.
Non-Exclusivity and Continuity of Rights
The indemnification and entitlement to advancement of
expenses
provided by this article shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under the articles of incorporation
or
any statute, agreement, general or specific action of the board of directors,
vote of stock holders or otherwise, shall continue as to a person who has
ceased
to be a director or officer, shall inure to the benefit of the heirs,
executors,
and administrators of such a person and shall extend to all claims for
indemnification of advancement of expenses after the adoption of this article.
Amendments
Any repeal of this article shall only be prospective and no
repeal or modification hereof shall adversely affect the rights under this
article in effect at the time of the alleged occurrence of any action or
omission to act that is the cause of any proceeding.
Director Liability
No director of the corporation shall be personally liable to
the
corporation or its shareholders for monetary damages for conduct as a
director;
provided that this section shall not eliminate the liability of a director
for
any act or omission for which some elimination of liability is not permitted
under the Nevada Business Corporation Act. No amendment to the Nevada
Business
Corporation Act that further limits the acts or omissions for which
elimination
of liability is permitted shall affect the liability of a director for any
act
or omission which occurs prior to the effective date of such amendment.
ARTICLE V1ll
Dividends
The Board of Directors may, in the exercise of sound
discretion,
from time to time declare, and the corporation may pay dividends on its
outstanding share in the manner and upon the terms and conditions provided by
the laws of the State of Nevada.
ARTICLE IX
Seal
The Board of Directors may provide a corporation seal which
shall be circular in form and have inscribed on it the name of the
corporation
and the state of incorporation and the word "Corporate Seal."
ARTICLE X
Waiver of Notice
Whenever any notice is required to given to any shareholder
or
director of the corporation under the provisions of these Bylaws, under the
provisions of the Article of Incorporation or under the provisions of the
Nevada
Business Corporation Act, a waiver of the notice in writing, signed by the
person or persons entitled to the notice, whether before or after the time
stated in the notice, shall be deemed equivalent to the giving of the notice.
ARTICLE XI
Interested Parties
A director of the corporation shall not be disqualified by
the
director's office from contracting with the corporation as vendor, purchaser
or
otherwise; nor shall any contract or arrangement entered into by or on behalf
of
the corporation in which any director is in any way interested be avoided on
that account, provided that such contract or arrangement shall have been
approved or ratified by a majority of the Board of Directors without counting
in
such majority the director so interested, although such director may be
counted
toward a quorum, or shall have been approved or ratified by all the
affirmative
action of a majority in number of shares of the corporation, and the interest
shall have been disclosed or known to the approving or ratifying directors or
shareholders.
ARTICLE XII
Amendments
These Bylaws may be altered, amended or repealed and new
bylaws
adopted by the Board of Directors by a majority vote of the full board at any
regular or special meeting, subject to repeal or change by action of the
shareholders.
ARTICLE XIII
Executive Committee
Section 1. Appointment. The Board of Directors, by resolution
adopted by a majority of the full board, any designated two or more of its
members to constitute an Executive Committee. The designation of such
committee
and the delegation to it of authority shall not operate to relieve the Board
of
Directors, or any member of it, of any responsibility imposed by law.
Section 2. Authority. The Executive Committee, when the Board
of
Directors is not in session, shall have and may exercise all the authority of
the Board of Directors except to the extent, if any, that such authority
shall
be limited by resolution appointing the Executive Committee and except also
that
the Executive Committee shall not have the authority of the Board of
Directors
in reference to amending the Articles of Incorporation, removing an member of
the Board of Director, adopting a plan or merger or consolidation,
recommending
to the shareholders the sale, lease or other disposition of all or
substantially
all of he property and assets of the corporation otherwise than in the usual
and
regular course of its business, recommending to the shareholders a voluntary
dissolution of the corporation or a revocation thereof, or amending the
Bylaws
of the corporation.
Section 3. Tenure and Qualifications. Each member of the
Executive Committee shall hold office until the next regular annual meeting
of
the Board of Directors following such member's designation and until the
member's successor is designated as a member of the Executive Committee and
is
duly elected and qualified.
Section 4. Meetings. Regular meetings of the Executive
Committee
may be held without notice at such times and places as the Executive
Committee
may fix from time to time by resolution. Special meetings of the Executive
Committee may be called by any member of it upon not less that "2 days"
notice
stating the place, date and hour of the meeting, which notice may be written
or
oral, and if mailed, shall be deemed to be delivered when deposited in the
United States mail addressed to the member of the Executive Committee at his
or
her business address, with first class postage paid. Any member of the
Executive
Committee may waive notice of any meeting and no notice of any meeting need
be
given to any member of it who attends in person. The notice of a meeting of
the
Executive Committee need not state the business proposed to be transacted at
the
meeting. Any regular or special meeting may be by means of telephone
conference
under the conditions prescribed in Section 5 of Article III of these Bylaws.
Section 5. Quorum. A majority of the members of the Executive
Committee shall constitute a quorum for the transaction of business at any
meeting of it and action of the Executive Committee must be authorized by the
affirmative vote of a majority of the members present at a meeting at which a
quorum is present.
Section 6. Action Without a Meeting. Any action that may be
taken by the Executive Committee at a meeting may be taken without a meeting
if
a consent in writing, setting forth the action so taken, shall be signed by
all
members of the Executive Committee.
Section 7. Resignation and Removal. Any member of the
Executive
Committee may be removed at any time with or without cause by resolution
adopted
by a majority of the full Board of Directors. Any member of Executive
Committee
may resign from the Executive Committee at any time by given written notice
to
the President or Secretary of the Corporation, and unless otherwise specified
in
the notice, the acceptance of such resignation shall not be necessary to make
it
effective.
Section 8. Vacancies. Any vacancy in the Executive Committee
may
be filled by a resolution adopted by a majority of the full Board of
Directors.
Section 9. Procedure. The Executive Committee shall elect a presiding officer
from its members and may fix its own rules of procedure which shall not be
inconsistent with these Bylaws. It shall keep regular minutes of its
proceedings
and report the same to the Board of Directors at the next meeting of Board of
Directors.
Approved by the Board of Directors
Date: November 24, 1997
/s/ Ryan Barnard
Ryan Barnard, Secretary
EXHIBIT 10.(i)1 OFFICE LEASE FOR THE COMPANY
LIBERTY CENTER LEASE
1. PARTIES. This lease ("Lease") dated for reference purpose only, 9/14/97,
is
made by and between Fritz-Liberty Center ("Landlord"), and Juina Mining
Company
Inc. Noel M. Frenze1 a ("Tenant").
2. PREMISES. Landlord is the owner of certain real property improved with a
building and certain other facilities located at 350 South Center Street,
Reno,
Nevada (the "Property"). Landlord does hereby lease to Tenant and Tenant
hereby
leases from Landlord that certain space within the Property as described on
Exhibit "A" attached hereto and made a part hereof, and the address 350 South
Center Street, Suite 411, Reno, Nevada 89501 (the "Premises"). This Lease is
subject to the terms, covenants, and conditions herein set forth and the
Tenant
covenants as a material part of the consideration of this Lease to keep and
perform each and all of said terms, covenants, and conditions.
3. TERM. The term of this Lease shall be Three Years (36 months)(the "Lease
Term") commencing on the 1st day of October 1997 (the "Commencement Date"),
and ending on the 30th day of September 2000(the "Termination Date").
4. POSSESSION. A)If the Landlord for any reason whatsoever cannot deliver
possession of the Premises to the Tenant on the Commencement Date, this Lease
shall not be void or voidable, nor shall Landlord be liable to Tenant for any
loss or damage resulting therefrom, nor shall the Termination Date be in any
way
extended, but in that event, all rent shall be abated during the period
between
the Commencement Date and the time when Landlord delivers possession. B)In
the
event that Landlord shall permit Tenant to occupy the Premises prior to the
Commencement Date, such occupancy shall be subject to all provisions of this
Lease. Any early possession shall not change the Termination Date.
5. RENT. Subject to the adjustments provided herein, the total rent
commitment
for the Premises during the Lease Term shall be $32,040.00, which Tenant
agrees
shall be payable to Landlord, without prior notice or demand. Tenant shall
pay
to Landlord, the amount of Eight Hundred Ninety Dollars ($890.00)("Monthly
Rent"), on or before the first day of each calendar month of the Lease Term,
except that the first month's rent shall be paid upon the execution hereof.
Rent
for any period during the Lease Term which is for less than one (1) month
shall
be a prorated portion of the monthly installment herein, based upon a thirty
(30) day month. All rent shall be paid to Landlord, without deduction or
offset
in lawful money of the United States of America, which shall be legal tender
at
the time of payment, at the address set forth on the signature page hereof,
or
to such other person or at such other place as Landlord may from time to time
designate in writing.
Monthly Rent shall be increased every Year (each such period an "Adjustment
Period")after the Commencement Date of this Lease in proportion to the
percentage increase in the U.S. Department of Labor Consumer's Price Index
for
U.S. City Average All Urban Consumers, All items, as measured from the base
month which is hereby established as September 1997. However, in no event
shall
the Monthly Rent be less than the amount of the Monthly Rent for the
immediately
preceding Adjustment Period.
It is understood that the Rent figure arrived at, pursuant to the provisions
of
this Paragraph, shall be made after appropriate adjustment has been made of
any
increases elsewhere required hereunder for taxes, insurance or maintenance so
that no duplication of increases will occur. If at the time required for the
determination of the adjustment the CPT above-mentioned is no longer
published
or issued, the parties shall use such index as is then generally recognized
and
accepted for similar determinations of purchasing power.
Additional Rent shall include Operating Expenses, as hereinafter defined, and
all other costs, fees, charges, payments, expenses or other amounts to be
paid
by Tenant to Landlord under the terms of this Lease other than the Monthly
Rent.
Unless this Lease provides otherwise, Additional Rent is to be paid on the
first
day of the month after the month in which the Additional Rent is incurred or
accrues and is subject to the provisions of this Article. 7he term "rent" as
used in this Lease means Monthly Rent and Additional Rent.
6. SECURITY DEPOSIT. Tenant has deposited with Landlord the sum of Eight
Hundred Ninety Dollars($890.00 )(the "Security Deposit") which shall be held
by
Landlord as security for the faithful performance by Tenant of all the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
during the
Lease Term. If Tenant defaults with respect to any provision of this Lease
including
but not limited to the provision relating to the payment of rent, Landlord
may (but shall not be required to) use, apply or retain all or any part of
the
Security Deposit for the payment of any rent or any other sum in default, or
for
the payment of any amount which Landlord may spend or become obligated to
spend by reason of Tenants default, or to compensate Landlord for any other
loss or
damage which Landlord may suffer by reason of Tenants default. If any portion
of
the Security Deposit is so used or applied, Tenant shall within ten (10) days
after written demand therefore, deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to its original amount and Tenants
failure to do so shall be a material breach of this Lease. If Tenant shall
fully
and faithfully perform every provision of this Lease to be performed by it,
the
Security Deposit or any balance thereof shall be returned to Tenant (or, at
Landlord's option, to the last assignee of Tenant's interest hereunder) at
the
expiration of the Lease term. No interest shall accrue or be payable to Tenant
on the Security Deposit. In the event of termination of Landlord's interest
in
this Lease, Landlord shall transfer the Security Deposit to Landlord's
successor
in interest and Tenant shall look solely to such transferee with respect to
the
Security Deposit.
7. COMMON AREAS. "Common Area" is defined to mean all areas and
facilities outside the Premises and within the exterior boundary line of the
Property that are provided and designated by Landlord for the non-exclusive
use
or benefit of Landlord, Tenant and other tenants of the Property and their
respective employees, agents, customers and invitees.
Common Area may include, without limitation, parking areas, common loading
and
unloading areas, common trash areas, roadways, sidewalks, walkways, parkways,
driveways, corridors, landscaped areas and any restrooms used in common by
two
or more tenants of the Property.
Tenant, its employees, agents, customers and invitees shall have the
non-exclusive right (in common with other tenants, Landlord, and any other
person granted use by Landlord) to use of the Common Area. Tenant agrees to
abide by and conform to, and to cause its employees, agents, customers and
invitees to abide by and conform to, an rules and regulations established by
Landlord, subject to provisions of Article 21.
Landlord has the right, in its sole discretion, from time to time, to (1)
make
changes to the Common Area, including without limitation changes in the
location, size, shape and number of driveways, entrances, parking spaces,
parking areas, ingress, egress, walkways and sidewalks,(2) close temporarily
any
of the Common Area for maintenance or other purposes so long as reasonable
access to the Premises is not materially impaired; (3) add additional
improvements to the Common Area and the Property; (4) use the Common Area
while engaged in making additional improvements, repairs or alterations to
the
Property or any portion thereof; (5) so long as Tenant's access to the
Premises
is not materially impaired, do and perform any other acts or make any other
changes in, to or with respect to the Common Area and Property as Landlord
may,
in the exercise of sound business judgment, deem to be appropriate.
Landlord shall have the sole right and authority to operate, maintain and
repair
or cause to be operated, maintained and repaired, the Common Areas, subject
to
reimbursement pursuant to Article 8.
8. OPERATING EXPENSE ADJUSTMENTS. For the purposes of this Article, the
following terms are defined as follows:
Base Year: The calendar year in which the Lease Term commences. For purposes
of
this Lease the Base Year shall be considered to be the 1997 - calendar year.
Comparison Year: Each calendar year of the Lease Term after the Base Year.
Qperating Expenses: All costs and expenses of operating, maintaining,
managing,
repairing, replacing, improving, and insuring the Property, as determined by
standard accounting practices, and shall include the following costs by way
of
illustration, but not limited to: real property taxes and assessments; rent
taxes, gross receipt taxes, (whether assessed against the Landlord or
assessed
against the Tenant and collected by the Landlord, or both); sewer charges;
fire,
theft, public liability and extended coverage and other insurance premiums;
costs premiums; costs incurred in the management of the Property including
but
not limited to, accounting fees, security, expenses, utilities including but
not
limited to service and facilities for water, sewer, telephone, electricity,
gas,
heating, light, and garbage, air-conditioning and heating; reserve for
replacement of capital equipment; supplies; light bulbs; materials;
equipment;
and tools; including maintenance costs, and upkeep of all parking,
landscaping,
and Common Areas. ("Operating Expenses: shall not include depreciation on the
Property of which the Premises are a part or equipment therein, loan
payments,
executive salaries or real estate brokers' commissions).
If the Operating Expenses paid or incurred by the Landlord for the Comparison
Year on account of the operation or maintenance of the Property of which the
Premises are a part are in excess of the Operating Expenses paid or incurred
for
the Base Year, then the Tenant shall pay 0.7 % of the increase ("Tenant's
Share"). Tenant's Share is a percentage equal to the percentage that the area
of
the Premises bears to the total rentable area of the building located on the
Property leased by the Tenant under this Lease.
Landlord shall endeavor to give to Tenant on or before the first day of March
of
each year following each Comparison Year a statement of the increase in
Operating Expenses payable by Tenant as rent hereunder, but failure by
Landlord
to give such statement by said date shall not constitute a waiver by Landlord
of
its right to require an increase in rent, Upon receipt of the statement for
the
first Comparison Year, Tenant shall pay in full the total amount of increase
due
for the first Comparison Year. The amount of any such increase shall be used
as
an estimate for the current year (the "Estimated Amount"). The Estimated
Amount
shall be divided into twelve (12) equal monthly installments and Tenant shall
pay to Landlord, concurrently with the rent payment next due following the
receipt of such statement, an amount equal to one (1) monthly installment
multiplied by the number of months from January in the calendar year in which
said statement is submitted to the month of such payment, both months
inclusive.
Subsequent installments shall be payable concurrently with the rent payments
for
the balance of that calendar year and shall continue until the next
Comparison
Year's statement is rendered.
If the next or any succeeding Comparison Year results in an additional
increase
in Operating Expenses above the Estimated Amount, then upon receipt of the
statement from the Landlord, Tenant shall pay a lump sum equal to such total
increase in Operating Expenses over Base Year, less the total of the monthly
installments of the Estimated Amount paid in the previous calendar year for
which comparison is then being made to the Base Year. The Estimated Amount
installments to be paid for the next year, following said Comparison Year,
shall
be adjusted to reflect such increase. If in any Comparison Year the Tenant's
share of Operating Expenses is less than the preceding year, then upon
receipt
of Landlord's statement, any overpayment made by Tenant on the monthly
installment basis provided above shall be credited towards the next Monthly
Rent
failing due and the estimated monthly installments of Operating Expenses to
be
paid shall be adjusted to reflect such lower Operating Expenses for the most
recent Comparison Year.
Even though the Lease Term has expired and the Tenant vacated the Premises,
when
the final determination is made of Tenant's Share of Operating Expenses for
the
year in which this Lease terminates, Tenant shall immediately pay any
increase
due over the Estimated Amount paid and conversely any overpayment made in the
event the Operating Expenses decrease shall be rebated by Landlord to Tenant.
Notwithstanding anything contained in this Article, the rent payable by
Tenant
shall in no event be less than the rent specified in Article 5 hereinabove.
9. USE Tenant shall use the premises for General office purposes and shall
not
use or permit the Premises to be used for any other purpose without prior
written consent of Landlord. Tenant will not act or fail to act in or
aboutthe
Premises nor bring or keep anything therein which will in any way increase
the
existing rate of or affect any fire or other insurance upon the Property
orany
of its contents, or cause cancellation of any of the insurance policies
covering
said Property or any part thereof or any of its contents. Tenants will not
act
or fail to act in or about the Premises nor bring or keep anything therein
which will in any way obstruct or interfere with the rights of other tenants
or
occupants of the Property or injure or annoy them or use or allow the
Premises
to be used for any improper, immoral, unlawful or objectionable purpose, nor
shall Tenant cause, maintain or permit any nuisance in, on or about the
Premises. Subject to the provisions of Article 11 below, Tenant shall not
commit nor suffer to be committed any waste in or upon the Premises. Upon
termination of this Lease, the Premises shall be surrendered in the same
condition as on the Commencement Date, reasonable wear and tear excepted.
10. COMPLIANCE WITH THE LAW. Tenant shall not use the Premises or permit
anything to be done in or about which will in any way conflict with any law,
statue, ordinance or governmental rule or regulation now in force or which
may
hereafter be enacted or promulgated. Tenant shall, at its sole cost and
expense, promptly comply with all laws, statutes, ordinances and governmental
rules, regulations or requirements now in force or which may' hereafter be in
force, including without limitation the Americans with Disabilities Act, and
with the requirement of any board of fire insurance underwriters or other
similar bodies now or hereafter constituted, relating to or affecting the
condition, use or occupancy of the Premises, excluding structural changes not
related to or affected by Tenant's use of the Premises or Improvements or
acts. The judgment of any court of competent jurisdiction or the admission of
Tenant in any action against Tenant, whether Landlord is a party thereto or
not, that Tenant has violated any law, statute, ordinance or governmental
rule, regulation or requirement, shall be conclusive of that fact as between
the Landlord and Tenant.
11. ALTERATIONS. Tenant shall not make or permit to be made any alterations,
additions or improvements (an "Improvement'*) to or of the Premises or any
part
thereof without prior written consent of Landlord. En the event that Landlord
consents to the making of any Improvements to the Premises by Tenant, the
same
shall be made by Tenant at Tenant's sole cost and expense, and any contractor
or
person selected by Tenant to make the same must be licensed and bonded in the
State of Nevada and approved in writing by Landlord.
Upon the expiration or sooner termination of the Lease Term hereof, at
Landlord's option, upon written notice of Landlord, given at least thirty
(30) days prior to the end of the Lease Term, either (i) at Tenant's sole
cost
and expense, Tenant shall forthwith and with all due diligence remove any
alterations, additions or improvements made by Tenant, designated by Landlord
to
be removed and repair any damage to the Premises caused by such removal or
(ii) any Improvements to or of the Premises, including, but not limited to,
electrical, plumbing, wall covering, paneling and built-in cabinet work, but
excepting movable furniture and trade fixtures, shall on the expiration of
the
Lease Term become a part of the realty and belong to the Landlord and shall
be
surrendered with the Premises.
12. REPAIRS. A)By taking possession of the Premises, Tenant shall be deemed
to
have accepted the Premises as being in good, sanitary order, condition and
repair. Tenant shall, at Tenant's sole cost and expense, keep the Premises
and
every part thereof in good condition and repair, ordinary wear and tear
excepted. Tenant shall upon the expiration or sooner termination of this
Lease
hereof surrender the Premises to the Landlord in good condition, ordinary
wear and tear excepted.
Except as specifically provided in an Addendum, if any, to this Lease,
Landlord
shall have no obligation whatsoever to alter, remodel, improve, repair,
decorate or paint the Premises or any part thereof and the parties hereto
affirm that Landlord has made no representations to Tenant respecting the
condition of the Premises or the Property except as specifically set forth in
such Addendum.
B)Notwithstanding the provisions of Article 12a hereinabove, Landlord shall
repair and maintain the structural portions of the Property, including the
basic
plumbing and electrical systems, installed or furnished by Landlord, unless
such
maintenance and repairs are caused in part or in whole by the act, neglect,
fault or omission of any duty by the Tenant, its agents, servants, employees
or
invitees, in which case Tenant shall pay to Landlord the reasonable cost of
such
maintenance and repairs. Landlord shall not be liable for any failure to make
any such repairs or to perform any repairs or maintenance unless such failure
shall persist for an unreasonable time after written notice of the need of
such
repairs or maintenance is given to Landlord by Tenant. There shall be no
abatement of rent and no liability of Landlord by reason of any injury to or
interference with Tenant's business arising from the making of or failure to
make any repairs, alterations or improvements in or to any portion of the
Property or the Premises or in or to fixtures, appurtenances and equipment
therein. Tenant waives the right to make repairs at Landlord's expense under
any
law, statute or ordinance now or hereafter in effect.
C)All Improvements and repair 9 made by Tenant pursuant to Articles ii and 12
respectively shall be made promptly and in a good and workmanlike manner, and
in
compliance with all insurance requirements and applicable permits,
authorizations, and all other governmental rules, regulations, ordinances,
statutes and laws. Prior to the commencement of any such work, Tenant shall
provide Landlord evidence of appropriate insurance to protect Landlord, its
tenants and invitees from damage or injury resulting from such work.
13. LIENS. Tenant shall indemnify, save and hold harmless Landlord and shall
keep the Premises and the Property, free from any hens arising out of any
work
performed for, materials furnished to, or obligations incurred by Tenant.
Landlord may require, at Landlord's sole option, that Tenant shall provide to
Landlord, at Tenant's sole cost and expense, a lien and completion bond in an
amount equal to one and one-half times any and all estimated costs of any
improvements, additions or alterations in the Premises, to insure Landlord
against any liability for mechanic's and material-men's liens and to insure
completion of the work.
14. ASSIGNMENT AND SUBLETTING. Tenant shall not either voluntarily or by
operation of law, assign, transfer, Mortgage, pledge, hypothecate or encumber
this Lease or the Premises or any interest therein, and shall not sublet the
said Premises or any part thereof, or any right or privilege appurtenant
thereto, or suffer any other person (the employees, agents, servants and
invitees of Tenant excepted) to occupy or use the said Premises, or any
portion
thereof, without the prior written consent of Landlord. Consent of Landlord
shall not be construed as (i) constituting a novation or release of Tenant
from
the performance of its obligations hereunder, (ii) creating any contractual
relationship between Landlord and the transferee, or (iii) constituting an
assumption by Landlord of any of Tenant's obligations to the transferee.
Consent to one assignment, subletting occupation or use by any other person
shall not be deemed to be a consent to any subsequent assignment, subletting
occupation or use by another person. Any such assignment or subletting
without such consent shall be void, and shall, at the option of the Landlord,
constitute a default under this Lease. Lessor shall be entitled to receive
any
additional rent paid by a sub-lessee over and above the amount of rent
specified herein to be paid by Lessee. If Tenant is a corporation,
partnership, or other business entity the merger or consolidation of Tenant
with any other entity, the issuance of any additional stock or ownership
interest, the conversion or change of Tenant from one type of business entity
to another and/or the transfer, assignment or hypothecation of any stock or
ownership interest in such entity in the aggregate in excess of twenty-five
percent (25%) of such interest, as thesame may be constituted as of the date
of this Lease, whether directly or indirectly, shall be deemed to be a
transfer for purposes of this Article.
15. HAZARDOUS. Tenant expressly represents and warrants that no hazardous
materials, substances, hazardous wastes, pollutants or contaminants will
be
used, deposited, stored disposed of, placed or otherwise located in or on the
Premises at any time that would constitute a violation under any law,
ordinance, rule or regulation relating to hazardous substances, hazardous
wastes, pollutants or contaminants. As used in this subsection, the terms
"hazardous substances"", "hazardous wastes", "pollutants", "contaminants" and
"facility" mean any substances, wastes, pollutants, contaminants or facility
now
or hereafter included within those respective terms or terms similar thereto
under a now existing or hereafter enacted or amended federal, state or local
statue, ordinance, code or regulation.
16. HOLD HARMLESS. Tenant shall indemnify and hold harmless Landlord against
and from any and all claims, suits, liabilities, loss, cost, damages and
expense,
including reasonable attorney's fees, arising from Tenant's use or occupancy
of
the Premises for the conduct of its business or from any activity, work or
other
thing done, permitted or suffered by the Tenant or Tenant's agents,
employees,
contractors, licensees and invitees in or about the Property, and shall
further
indemnify and hold harmless Landlord against and from any and all claims,
suits,
liabilities, loss, cost, damages and expense, including reasonable attorney's
fees, arising from any breach or default in the performance of any obligation
on
Tenant's part to be performed under the terms of this Lease, or arising from
any
act or negligence of the tenant, or any officer, agent, employee, contractor,
licensee, or invitee of Tenant, and from and against all costs, attorney's
fees,
expenses and liabilities incurred in or about any such claim or any action or
proceeding brought thereon. Tenant upon notice from Landlord shall defend the
same at Tenant's expense by counsel reasonably satisfactory to Landlord.
Tenant
as material part of the consideration to the Landlord hereby assumes all risk
of
damage to property or injury to persons, in upon or about the Premises, from
any cause other than Landlord's intentional misconduct, and Tenant hereby
waives
all claims in respect thereof against Landlord.
Landlord or its agents shall not be liable for any damage to property
entrusted to employees of the Property, nor for loss or damage to any property
by theft or otherwise, nor for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity,
water, rain, snow or ice, leakage from any part of the Property or from the
pipes, appliances or plumbing works therein or from the roof, street of
subsurface or from any other place resulting in or from dampness or any other
cause whatsoever, unless caused by or due to the intentional misconduct of
Landlord, its agents, servants or employees. Landlord or its agents shall not
be liable to Tenant for, and Tenant hereby releases Landlord from all claims
related to or arising from, interference with fight, view or air, or other
incorporeal hereditament, loss of business by Tenant, nor shall Landlord be
liable for any latent defect in the Premises or in the Property. Tenant shall
give prompt notice to Landlord in case of fire or accidents in the Premises or
in the Property or of defects therein or in the fixtures or equipment.
17. SUBROGATION. As long as their respective insurers so permit, Landlord and
Tenant hereby mutually waive their respective rights of recovery against each
other for any loss insured by fire, extended coverage and other property
insurance policies existing for the benefit of the respective parties each
party shall obtain any special endorsements, if required by their insurer, to
evidence compliance with the aforementioned waiver.
13. INSURANCE. Tenant shall, at Tenant's expense, obtain and keep in force
during the term of this Lease a policy of comprehensive public liability
insurance insuring Landlord and Tenant against any liability arising out of
the ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto in an amount not less than $1,000,000 with a minimum per
occurrence of not less than $1,000,000 and a deductible of not more than
$1,000. The limit of said insurance shall not, however, limit the liability of
the Tenant hereunder. Tenant may carry said insurance under a blanket policy,
providing, however, said insurance by Tenant shall have a Landlord's
protective liability endorsement attached thereto.
Tenant shall maintain during the Lease Term at Tenant's sole cost and
expense,
a policy of standard fire and extended coverage insurance with "all risk"
coverage for the full replacement value of all of Tenant's property located on
the Property including without limitation, all furniture, fixtures, equipment
and personal property.
If Tenant shall fad to procure and maintain all insurance required by this
Article 18, Landlord may, but shall not be required to, procure and maintain
same, at the expense of Tenant's Insurance required hereunder, shall be in
companies rated A+7 or better in "Best's Insurance Guide" or the equivalent.
Tenant shall deliver to Landlord prior to occupancy of the Premises copies of
policies of insurance required herein or certificates evidencing the
existence
and amounts of such insurance with lose payable clauses satisfactory to
Landlord. Each policy shall contain an endorsement that the policy is not
cancelable or subject to any modification of coverage except after thirty
(30) days' prior written notice to Landlord.
19. SERVICES AND UTILITIES. Provided that tenant is not in default hereunder,
Landlord agrees to furnish to the Premises during reasonable hours of
generally
recognized business days, to be determined by Landlord in its sole
discretion,
and subject to the rules and regulations of the Property which the Premises
are a part, electricity for normal lighting and office machines, heat and air
conditioning required in Landlord's judgment for the comfortable use and
occupation of the Premises, and janitorial service.
Landlord shall also maintain and keep lighted the Common Areas. The costs for
services provided under this Article will be included in the Operating
Expenses.
Tenant expressly agrees that all non-essential electrical devices, including
without limitation, computers and printers, shall be turned off at the end of
each business day by Tenant Failure to comply with the requirement shall be
deemed a material breach of this Lease.
Landlord shall not be liable for, and Tenant shall not be entitled to any
reduction of rent by reason of Landlord's failure to furnish any of the
foregoing when such failure is caused by accident breakage, repairs, strike,
lockouts or other labor disturbances or labor disputes of any character, or
by any other cause, similar or dissimilar, unless caused by the intentional
misconduct of Landlord. Landlord shall not be liable under any circumstances
for a loss of or injury to property, however occurring through or in
connection with or incidental to failure to furnish any of the foregoing.
Wherever heat generating machines or equipment are used in the Premises which
affect the temperature otherwise maintained by the air conditioning system,
Landlord reserves the right to install supplementary air condition units in
the Premises and the cost of installation, and the cost of operation and
maintenance thereof shall be paid by Tenant to Landlord upon demand by the
Landlord.
Tenant will not, without consent of Landlord, use any apparatus or device in
the premises, including, but not without limitation thereto, electronic data
processing machines, punch card machines, and machines using in excess of 120
volts, which will in any way increase the amount of electricity usually
furnished or supplied for the use of the Premises as general office space,
nor
connect with electric current except through existing electrical outlets in
the
Premises, any apparatus or devise, for the purpose of using electric current
If
Tenant shall require water or electric current in excess of that usually
furnished or supplied for the use of the Premises as general office space,
Tenant shall obtain the prior written consent of Landlord, which Landlord may
withhold in its sole discretion, to the use thereof and Landlord may cause a
water meter or electrical current meter to be installed in the Premises, so as
to measure the amount of water and electric current consumed for any such use.
The cost of any such meters and of installation, maintenance and repair thereof
shall be paid for by the Tenant and Tenant agrees to pay to Landlord promptly
upon demand therefore by Landlord for all such water and electric current
consumed as shown by said meters, at the rates charged for such services by
the local public utility furnishing the same, plus any additional expense
incurred
in keeping account of the water and electric current so consumed. If a separate
meter is not installed, such excess cost for such water and electric current
will be established by Landlord based upon an estimate made by a utility
company or engineer.
20. PROPERTY TAXES. Tenant shall pay, or cause to be paid, before
delinquency,
any and all taxes levied or assessed and which become payable during the
Lease
Term hereof upon all Tenant's leasehold improvements, equipment, furniture,
fixtures and personal property located in the Premises, except that which as
been paid for by Landlord, and is the standard of the Property. In the event
any
or all of the Tenant's leasehold improvements, equipment, furniture, fixtures
and personal property shall be assessed and taxed with the Property, Tenant
shall pay to Landlord its share of such taxes, within ten (10) days after
delivery to Tenant by Landlord of a statement in writing setting forth the
amount of such taxes applicable to Tenant's property.
21. RULES. Tenant shall faithfully observe and comply with the rules and
regulations ("Rules") that Landlord shall from time to time promulgate.
Landlord
reserves the right from time to time to makee all reasonable modifications to
the Rules. The additions and modifications to the Rules shall be binding upon
Tenant upon delivery of a copy of them to Tenant. Landlord shall not be
responsible to Tenant for the nonperformance of the Rules by any other
tenants or occupants.
22. HOLDING OVER. Tenant shall vacate the Premises at the expiration or
termination of this Lease. If Tenant remains in possession of the Premises or
any part thereof after the expiration or termination of the Lease Term, such
continuance of possession shall be deemed a tenancy from month to month at a
rent equal to 1501/6 of the last Monthly Rent, plus all other charges payable
hereunder, and upon all the terms hereof applicable to a month to month
tenancy.
Nothing herein shall be deemed to permit Tenant to retain possession of the
Premises after the expiration or termination of this Lease and Tenant shall
be
liable for all damage, cost and expense, including consequential damages,
that
may arise from or be caused by the retention by Tenant of possession after
the
termination or expiration hereof.
23. LANDLORD ENTRY. Landlord reserves and shall at any and all times have the
right to enter the Premises, inspect the same, supply any service to be
provided
by Landlord to Tenant hereunder, to submit said Premises to prospective
purchasers or tenants, to post notices of non-responsibility, to alter,
improve
or repair the Premises and any portion of the Property of which the Premises
are
a part that Landlord may deem necessary or desirable and for any other
business
purpose, without abatement of rent and may for that purpose erect scaffolding
and other necessary structures where reasonably required by the character of
the
work to be performed, always providing that the entrance to the Premises
shall
not be blocked thereby, and further providing that the business of the Tenant
shall not be interfered with unreasonably. Tenant hereby waives any claims
for
damages or for any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises, and any
other loss occasioned thereby. For each of the aforesaid purposes, Landlord
shall at all times have and retain a key with which to unlock all the doors
in,
upon and about the Premises, excluding Tenant's vaults, safes and files.
Landlord shall have the right to use any and all means which Landlord may
deem
proper to open doors in an emergency in order to obtain entry to the Premises
without liability to Tenant. Any entry to the Premises obtained by Landlord
by
any of said means or otherwise shall not under any circumstances be construed
or deemed to be a forcible or unlawful entry into, or a detainer of, the
Premises,
or an eviction of Tenant from the Premises or any portion thereof.
24. RECONSTRUCTION. In the event the Premises or the Property of which the
Premises area part are damaged by fire or other perils covered by extended
coverage insurance, Landlord agrees to forthwith repair the same and this
Lease
shall remain in full force and effect provided however, that Tenant shall be
entitled to proportionate reduction of the rent while such repairs are being
made, such proportionate reduction to be based upon the extent to which the
damage shall materially interfere with the business carried on by the Tenant
in
the Premises. If the damage is due to the fault or neglect of tenant or its
employees, there shall be no abatement of rent and Tenant shall pay all costs
and expenses of repair in excess of insurance proceeds received by Landlord
for
such damage.
In the event the Premises or the Property of which the Premises are a part are
damaged as a result of any cause other than the perils covered by fire and
extended coverage insurance, the Landlord shall forthwith repair the same,
provided the extent of the destruction be less than ten (10%)percent of the
then
full replacement cost of the Premises or the Property of which the Premises
area
part. In the event the destruction of the Premises or the Property is to an
extent greater than ten (10%) percent of the full replacement cost or the
destruction of the Premises or the Property in the last twelve (12) months of
the Lease Term, the Landlord shall have the option; (1) to repair or restore
such damage, this Lease continuing in full force and effect, but the rent to
be
proportionately reduced as hereinabove provided; or (2) give notice to Tenant
at
any time within sixty (60) days after such damage terminating this Lease as
of
the date specified in such notice, which date shall be no less then thirty
(30)
and not more then sixty (60) days after the giving of such notice. In the
event
of giving such notice, this Lease shall expire and all interest of the Tenant
in
the Premises shall terminate on the date so specified in such notice and the
Rent, reduced by a proportionate amount, based upon the extent, if any, to
which
such damage materially interfered with the business carried on by the Tenant
in
the Premises, shall be paid up to date of termination.
Landlord shall not be required to repair any injury Or damage by fire or
other
cause, or to make any repairs or replacements to any Improvements installed
by
Tenant including, without limitation, any panels, decoration, office
fixtures,
railings, floor covering, partitions, or any other property installed in the
Premises by Tenant.
The Tenant shall not be entitled to any compensation or damages from Landlord
for loss of the use of the whole or any part of the Premises, Tenant's
personal
property or any inconvenience or annoyance occasioned by such damage, repair,
reconstruction or restoration.
25. DEFAULT. The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease by Tenant. A)The vacating or
abandonment of the Premises by Tenant.
B)The failure by Tenant to make any payment of rent or any other payment
required to be made by Tenant hereunder, as and when due.
C)The failure by Tenant to observe or perform any of the covenants,
conditions
or provisions of this Lease to be observed or performed by the Tenant or to
comply with the Rules other than the payment of rent described in Article
25b.
above, where such failure shall continue for a period of thirty (30) days
after
written notice thereof by Landlord to Tenant; provided however, that if the
nature of Tenant's default is such that more than thirty (30) days are
reasonably required for its cure, then Tenant shall not be deemed to be in
default if Tenant commences such cure within said thirty (30) day period and
thereafter diligently prosecutes such cure to completion.
D)The making by Tenant of any general assignment or general arrangement for
the
benefit of creditors; or the filing by or against Tenant of a petition to
have
Tenant adjudged a bankrupt, or a petition or reorganization or arrangement
under
any law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within sixty (60) days); or the appointment of a
trustee or a receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within thirty (30) days of the attachment, execution
or other judicial seizure of substantially all of Tenant's assets located at
the Premises or of Tenant's interest in this Lease, where such seizure is not
discharged in thirty (30) days.
26. REMEDIES. In the event of any default or material breach by Tenant, landlord
may at any time thereafter cumulatively or in the alternative, with or
without
notice or demand, and without limiting Landlord in the exercise of any other
rights or remedies which Landlord may have at law or in equity by reason of
such
default or breach:
A)The right to declare the term of this Lease ended and reenter the Premises
and
take possession thereof, an to terminate all of the rights of Tenant in and
to
the Premises; provided however, that no act by Landlord other than express
written notice of termination of this Lease by Landlord shall be deemed to
terminate this Lease and provided further that only an express written
termination of Tenant's obligations hereunder shall be deemed to terminate
Tenant's obligations hereunder.
B)The right, without declaring the term of this Lease ended, to reenter the
Premises and to occupy the same, or any portion thereof, for and on account
of
the Tenant as hereinafter provided, and Tenant shall be liable for and pay to
Landlord on demand all such expenses as Landlord may have paid, assumed or
incurred in recovering possessions on of the Premises, including costs,
expenses, attorney's fees and expenditures placing the same in good order, or
preparing or altering the same for commissions and charges paid by the
Landlord
in reletting the Premises. Such reletting shall be for such rent and on such
other terms and conditions as Landlord, in its sole discretion, deems
appropriate. Landlord may execute any lease made pursuant to the terms hereof
either in the Landlord's own name or in the name of Tenant or assume Tenant's
interest in any existing subleases to any tenant of the Premises, as Landlord
may see fit, and Tenant shall have no right or authority whatsoever to
collect
any rent from tenants, subtenants, licensees or concessionaires of the
Premises.
In any case, and whether or not the Premises or any part thereof is relet,
Tenant, shall be liable to Landlord for an amount equal to the amount due as
rent hereunder through the remainder of the Term plus all of Landlord I s
expenses in connection with Tenant's default, repossession and such
reletting,
including without limitation all repossession costs, brokerage commissions,
legal expenses, attorneys fees, expenses of employees, alteration costs and
other costs of preparation of the Premises for relet, less the net proceeds,
if any of any reletting effected for the account of Tenant prior to the date
of the award.
Landlord reserves the right to bring one or more actions for the recovery of
any deficits remaining unpaid by the Tenant to the Landlord hereunder as
Landlord may deem advisable from time to time without being obligated to await
the end of the term of the Lease. Commencement or maintenance of one or more
actions by the Landlord in this connection shall not bar the Landlord from
bringing any subsequent actions for further accruals. In no event shall Tenant
be entitled to any excess rent received by Landlord over and above that which
Tenant is obligated to pay hereunder;
C)The right, even though it may have relet all or any portion of the Premises
in accordance with the provisions of Article 26b. above, to thereafter at any
time elect to terminate this Lease for such previous default on the part of
the Tenant, and to terminate all the rights of Tenant in and to the Premises.
D)Reentry. Pursuant to the rights of re-entry provided above, Landlord may
remove all persons from the Premises and may, but shall not be obligated to,
remove all property therefrom, and may, but shall not be obligated to,
enforce
any rights Landlord may have against said property or store the same in any
public or private warehouse or elsewhere at the cost and for the account of
Tenant or the owner or owners thereof. Tenant agrees to hold Landlord free
and
harmless from any liability whatsoever for the removal and/or storage of any
such property, whether of Tenant or any third party whomsoever. Such action
by
the Landlord shall not be deemed to have terminated this Lease or the
obligation
of Tenant to pay any amounts due hereunder.
E)Damages. In the event of termination of this Lease by Landlord pursuant to
this Article 26, Landlord may recover from Tenant, in addition to any and all
other remedies permitted at law:
(1) The worth, at the time of the award, of the unpaid Monthly Rent,
Additional
Rent and all other amounts which had been payable at the time this Lease is
terminated; plus
(2) The worth, at the time of the award, Of the amount by which the Unpaid
Monthly Rent, Additional Rent and all other amounts which would have been
payable after the date of termination of this Lease until the time of award,
exceeds the amount of the loss of rent that Tenant proves could have been
reasonably avoided;
(3) The worth, at the time of the award, of the amount by which the unpaid
Monthly Rent, Additional Rent and all other amounts payable for the balance
of
the Lease Term after the time of award exceeds the amount of loss of rent for
such period as the Tenant proves could have been reasonably avoided; and
(4) Any other amount, including without limitation attorney's fees and court
costs, necessary to compensate Landlord for all detriment proximately caused
by
Tenant's default of its obligations under this Lease, or which in the
ordinary
course of events would be likely to result therefrom.
The detriment proximately caused by Tenant's default will include, without
limitation,(i) expenses for cleaning, repairing or restoring the Premises,
(ii)
expenses for altering, remodeling or otherwise improving the Premises for the
purpose of reletting the Premises, (iii) brokers' fees and commissions
(including any commissions paid in connection with this Lease or any relet of
the Premises), advertising costs and other expenses of reletting the
Premises,
(iv) costs of maintaining and carrying the Premises such as taxes, insurance
premiums, utilities and security precautions,(v) expenses of retaking
possession
of the Premises, (vi) reasonable attorney's fees and court costs,(vii)
reimbursement of any previously waived or deferred Monthly Rent, Additional
Rent, free rent or reduced rent rate, and (viii) any concession made or paid
by
Landlord to or for the benefit of Tenant in consideration of this Lease
including, but not limited to, any moving allowances, contributions or
payments
by Landlord for tenant improvements or build-out allowances or assumptions by
Landlord of any of the Tenant's previous lease obligations.
As used in Article 26e.(I)and (2) above, the "worth at the time of the award"
shall be computed by allowing interest at the publicly announced prime rate
of
Bank of America Nevada, plus six percent (6*/*) per annum, from the date of
default through the date of the award. As used in Article 26e(3), the "worth
at
the time of the award" shall be computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of the
award, plus one percent (1%).
27. EMINENT DOMAIN. If more than twenty-five (25%) percent of the Premises
shall be taken or appropriated by any public or quasi-public: authority under
the
power of eminent domain, either party hereto shall have the right, at its
option, to terminate this Lease, and Landlord shall been titled to any and
all
income, rent, award, or any interest therein whatsoever which may be paid or
made in connection with such public or quasi-public use or purpose, and
Tenant
shall have no claim against Landlord for the value of any unexpired term of
this
Lease. If either less than or more than twenty-five (25%) percent of the
Premises is taken, and neither party elects to terminate as herein provided,
the
rent thereafter to be paid shall be equitably reduced. If any part of the
Property other than the Premises may be so taken or appropriated Landlord
shall
have the right at its option to terminate this Lease and shall be entitled to
the entire award as above provided.
28. ESTOPPEL. Tenant shall at any time and from time to time upon not less
than
ten (10) days' prior written notice from Landlord execute, acknowledge and
deliver to Landlord a statement in writing, (a) certifying that this Lease is
unmodified and in full form and effect (or, if modified, stating the nature
of
such medication and certifying that this Lease as so modified, is in full
force
and effect), and the date which the rent and other charges are paid in
advance,
if any, (b)acknowledging that there are not, to Tenant's knowledge, any
uncured
defaults on the part of the Landlord hereunder, or specifying such defaults
if
any are claimed, and (c) certifying or acknowledging any other matters which
Landlord shall reasonably require. Any such statement maybe relied upon by an
prospective purchaser or encumbrances of all or any portion of the real
property
of which the Premises are a part.
29. PARKING. Tenant shall have the right to use in common with other tenants
or occupants of the Property the parking facilities of the Property.
In addition, Landlord has rights to use certain parking spaces in a parking
garage located adjacent to the Property pursuant to the terms of an Agreement
Regard Parking Rights and Restrictions. Use of all parking facilities is
subject
to rules and regulations which may be established by Landlord. All parking
facilities which Tenant is permitted to use are to be used under a revocable
license and if any such license Is revoked, or if the amount of such area is
diminished, Landlord shall not be subject to any liability, nor shall Tenant
been titled to any compensation or diminution or rent, nor shall such
revocation
or diminution be an actual or constructive eviction.
30. AUTHORITY. Each individual executing this Lease on behalf of Tenant
represents and warrants the he is duly authorized, without joinder of any
other
person or entity, to execute and deliver this Lease on behalf of Tenant, in
accordance with a duly adopted resolution of the board of directors or other
appropriate authorization of Tenant, and that this Lease is binding upon
Tenant
in accordance with its terms. This Lease has been duly and validly executed
and
delivered by Tenant and is the valid and binding obligation of Tenant,
enforceable in accordance with its terms.
31. GENERAL PROVISIONS. (i)Plats and Riders. Addenda, plats and riders, if
any, signed by the Landlord and the Tenant and endorsed on or affixed to this
Lease
are a part hereof.(ii)Waiver The waiver by Landlord of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such term,
covenant or
condition on any subsequent breach of the same or any other term, covenant or
condition herein contained. 7he subsequent acceptance of rent hereunder by
Landlord
shall not deemed to be a waiver of any preceding breach by Tenant of any
term,
covenant or condition of this Lease, other than the failure of the Tenant to
pay
the particular rent so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of the acceptance of such rent.
(iii)Notices, Any and all notices and demands by any party, required of
desired
to be given hereunder shall be in writing and shall be validly given or made
only if deposited in the United States mail, certified or registered, postage
prepaid, return receipt requested, if made by Federal Express or other
similar
courier service keeping records of deliveries and attempted deliveries or
when
served by telecopy or similar facsimile transmission. Service by mail or
courier shall be conclusively deemed made on the first business day delivery
is attempted or upon receipt, whichever is sooner. Facsimile transmissions
received
during business hours during a business day shall be deemed made on such
business day. Facsimile transmissions received at any other time shall be
deemed received on the next business day. Any notice or demand to Tenant shall
be addressed to Tenant at the address shown on the signature page of this
Lease. Any notice or demand to Landlord shall be addressed to Landlord at the
address shown on the signature page of this Lease. Either party may change its
address for the purpose of receiving notices or demands as herein provided by
a written notice given in the manner aforesaid to the others, which notice of
change of address shall not become effetive, however, until the actual receipt
thereof by the other.(iv)Joint Obligations. If there be more than one Tenant
the obligations hereunder imposed upon Tenants shall be joint and several.
(v)Marginal Headings. The marginal headings and Article titles to the Article
of this Lease are not part of this Lease and shall have no effect upon the
construction or interpretation of any part hereof.
(vi)Time. Time is of the essence of this Lease and each and all of its
provisions in which performance is a factor.
(vii)Successors and Assigns. The Covenants and conditions herein contained,
subject to the provisions as to assignment, apply to and bind the heirs
successors, executors, administrators and assigns of the parties hereto.
(viii)Recordation. Tenant shall not record this Lease or a short form
memorandum
hereof without the prior written consent of Landlord.
(ix)Quiet Possession. Upon Tenant paying the rent reserved hereunder and
observing and performing all of the covenants, conditions and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire Lease Term, subject to all the
provisions of this Lease.
(x)Late Charges. Tenant hereby acknowledges that the late payment by Tenant
to
Landlord of rent or other sums due hereunder will cause Landlord to
incurcosts
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to processing
and accounting charges, and late charges which may be imposed upon Landlord
by terms of any mortgage or trust deed covering the Premises. Accordingly, if
any installment of rent or of a sum due from Tenant shall not be received by
Landlord or Landlord's designee within five (5) days from the date such
amount
becomes due, then Tenant shall pay to Landlord a late charge equal to one
percent (1%) of such overdue amount for each day such rent remains unpaid to
a
maximum of ten percent (10%) of the unpaid rent. The parties hereby agree
that
such late charges represent a fair and reasonable estimate of the cost that
Landlord will incur by reason of the late payment by Tenant. Acceptance of
such late charges by the Landlord shall in no event constitute a waiver of
tenant's
default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder.
(xi)Prior Agreements. This Lease contains all of the agreements of the
parties hereto with respect to any matter covered or mentioned in this Lease,
and no prior agreements or understanding pertaining to any such matters shall
be effective for any purpose. No provision of this Lease may be amended or
added to except by an agreement in writing signed by the parties hereto or
their respective successors in interest. This Lease shall not be effective or
binding on any party until fully executed by both parties hereto.
(xii)Inability to Perform. This Lease and the obligations of the Tenant
hereunder shall not be affected or impaired because the Landlord is unable to
fulfill any of it obligations hereunder or is delayed in doing so, if such
inability or delay is caused by reason of strike, labor troubles, acts of God
or any other cause beyond the reasonable control of the Landlord.
(xiii)Attorneys' Fees. In the event of any action or proceeding brought by
either party against the other under this Lease the prevailing party shall be
entitled to recover all costs and expenses including the fees of its
attorneys
in such action or proceeding. in the event that Landlord retains an attorney
to
enforce any provision of this Lease, whether or not a proceeding is actually
commenced, Tenant shall pay to Landlord, upon demand, all costs and expenses,
including attorneys fees, incurred in connection therewith.
(xiv)Sale of Premises by Landlord. In the event of any sale of the Property,
Landlord shall be and is hereby released of all liability under any and all
of
its covenants and obligations contained in or derived from this Lease arising
out of any act, occurrence or omission occurring after the consummation of
such sale, and the purchaser at such sale or any subsequent sale of the
Premises shall be deemed, without any further agreement between the parties or
their successors in interest or between the parties and any such purchaser, to
have assumed and agreed to carry out any and all of the covenants and
obligations of the Landlord under this Lease.
(xv)Subordination Attormment. Upon request of the Landlord, Tenant will in
writing subordinate its rights hereunder to the hen of any mortgage, or deed
of trust to any bank insurance company or other lending institution, now or
hereafter in force against and so long as Tenant is not in default hereunder,
this Lease shall remain in full force and effect for the full Lease Term.
xvi)Name. Tenant shall not use the name of the Property for any purpose other
than as an address of the business to be conducted by the Tenant in the
Premises.
(xvii)Severability. Any provision of this Lease which shall prove to be
invalid,
void or illegal shall in no way affect,impair or invalidate any other
provision hereof and such other provision shall remain in full force and
effect.
(xviii)Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies
at law or in equity.
(xix)Choice of Law. This Lease shall be governed by the laws of the State of
Nevada and venue of any suit will be in the county in which the Property is
located.
(xx)Signs and Auctions. Tenant shall not place any sign upon the Premises or
Property or conduct any auction thereon without Landlord's prior written
consent.
30. CONFIDENTIALITY. In consideration of Landlord's covenants and agreement
hereunder, Tenant hereby covenants and agrees not to disclose any terms,
covenants, or conditions of this Lease to any other person or entity without
the prior written consent of Landlord.
32. BROKER REPRESENTATION AND PARTICIPATION. Landlord and Tenant acknowledge
that "Nevada Commercial Group". ("Broker"), represents Landlord and Landlord
and Tenant each consent thereto.
The parties hereto have executed this Lease on the dates specified
immediately
adjacent to their signatures.
TENANT: Juina Mining Company, Inc.
Address: 350 South Center Street, Suite 411
Reno, Nevada 89501
By: /s/ Noel M. Frenzel
09-25-97
Print: Noel M. Frenzel
Facsimile: (213) 623-8032
Phone: (213) 689-0114
Fritz-Liberty Center
Address: 350 South Center Street, Suite 330
Reno, Nevada 89501
By: 09-30-97
EXHIBIT 10.(ii) MINING CONCESSION FOR THE MINING PROPERTY
36 Section 1
Official Gazette
Assignor: MINERAcAO JUINA MIRIM LTDA
Assignee: JUINA DIAMOND MINERACAO LTDA, CGC 01.250.437/0001-46
Purpose of the Assignment:
870.787/85 - Permit No. 1.459/96 -Juina MT
Instrument of Assignment: Private Instrument of Assignment
EXHIBIT 10.(iii) ASSIGNMENT OF MINERAL CONCESSION TO THE COMPANY
PRIVATE INSTRUMENT OF ASSIGNMENT
Made by and between MINERACAO JUINA MIRIM LTDA, one part, as
a private corporation located at Rua Pato Branco, s/no., in the municipality
of
Juina, State of Mato Gross, registered with the Taxpayers General Registry
(CGC/MF) under No. 00.829.394/0001-95, authorized to operate as "Mineracao"
(Mining Company) through permit No. 8.471 of October 16, 1995, hereby
represented by its partner, Mr. NELSON FERREIRA DE MATOS, Brazilian, married,
businessman, residing and domiciled in this city of JuIna-Mt, bearer of CPF/MF
No. 426.374-651-15, hereinafter ASSIGNOR, and on the other part, the company
JUINA DIAMOND MINERA(;Ao LTDA, a private corporation located at Avenida 08 de
Maio, s/no., in the municipality of Juina-Mt., registered with the Taxpayers
General Registry (CGC/MF) under No. 01-250-437/0001-46, hereby represented by
its partner, AIRTON CESAR REIS, Brazilian, married, businessman, residing and
domiciled at Rua Deputado Hitler Sansao, s/no. in the city of Juina, State of
Mato Grosso, bearer of the Identification Card RG. 364-085, issued by the
SSP/MT and registered with the CPF/MF under No. 206.863.311-68, hereinafter
ASSIGNEE, have agreed to the following terms and conditions:
FIRST CLAUSE - The ASSIGNOR is the holder of the process DNPM No. 866.787/85
located in the District and Municipality of Juina, State of Mato Grosso.
SECOND CLAUSE - The ASSIGNOR, through this ASSIGNMENT and in the best legal
form, assigns and transfers, as in fact has assigned and transferred, under
the terms of the provision of Art. 176, 3rd paragraph, of the Federal
Constitution,
the rights conferred unto the ASSIGNOR as the holder of the DNPM process No.
866.787/85 to the ASSIGNEE so that the latter may proceed with the referred
process for the purpose of obtaining a Research Authorization Permit.
THIRD CLAUSE - It is hereby established that the ASSIGNEE shall pay the
amount
of R$ 2.000,00 (two thousand reals) to the ASSIGNOR for this assignment and
the ASSIGNOR hereby declares the obligation as irrevocable and fully paid,
with no right to any further demand with regard to such payment at any time,
making this assignment good, valid, firm and true for himself, his heirs and
successors.
FOURTH CLAUSE - The ASSIGNEE, at its own expense, is hereby authorized to
request from the National Department of Mineral Production the transfer of the
mineral rights relative to the process mentioned above, and the ASSIGNOR
commits to cooperate in whatever necessary for the effectiveness and validity
of this instrument.
FIFTH CLAUSE - The ASSIGNEE may assign or transfer all of the rights and
obligations of the referred research request, as a whole or in part, without
authorization from the ASSIGNOR.
SIXTH CLAUSE - The ASSIGNOR commits, subject to violation and infringement of
the provisions agreed to herein, not to practice any act that may interfere
with the research request process with the competent authorities.
SEVENTH CLAUSE - This assignment is irrevocable, unchangeable and binding to
the parties, their heirs and successors. The Forum of the County of
jurisdiction for the municipality of Juina-MT is the one elected to resolve
any and all questions deriving from this agreement, excluding any other, no
matter how privileged it may be.
IN WITNESS WHEREOF, the ASSIGNOR and ASSIGNEE sign this
instrument of assignment in two copies, in the presence of the undersigned
witnesses.
Juina - Mt., October 20, 1997
Mineragao Juina Mirim Ltda
Nelson Ferreira de Matos
Juina Diamond Mineragao Ltda
Airton Cesar Reis
Witnesses:
Odete Maria Biava
CPF/MF 558.797-859-49
Vandete Soares Lopes
CPF/MF 920-178.311-15
Notary Public Seal
2nd Notary Public Office
Marilza da Costa Campos
Notary Public
October 22, 1997
EXHIBIT 10.(iv) ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made and entered into as of
this 7th day of November, 1997 by and between Juina Mining Company, Inc., a
Nevada corporation ("Buyer"), and Mineracso Julna Mirim Ltda., a Brazilian
company ("Seller").
RECITALS
WHEREAS, Seller owns certain mineral property known as 'Property 1000* located
In the State of Mato Grosso, Brazil, described in the Brazilian National
Department of Mineral Productions File Number 866.787/85 (the "Property"), as
more particularly described in Exhibit A to this Agreement; and
WHEREAS, Seller desires to sell and Buyer desires to purchase a 70% working
Interest In the Property (the "Acquired Assets") on the terms and subject to
the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the Recitals and the mutu,31 covenants,
conditions, representations and warranties hereinafter set forth, the parties
agree as follows:
1. Purchase and Sale of Assets. On the terms and subject to the conditions set
forth in this Agreement, Seller agrees to sell, convey, assign, transfer and
deliver to Buyer and Buyer agrees to purchase from Seller, at the closing on
August 10, 1997, or on such earlier or later date as May DO mutually agreed
upon by the Buyer and the Seller ("Closing Date").
2. Assumption of Obligations and Liabilities. On the Closing Date, Buyer shall
not assume or Eigree lo pay or otherwise perform any obligations or liabilities
of Sellers.
3. Purchase Price. As consideration for the sale, conveyance, assignment,
transfer and delivery of the Assets, Buyer agrees to issue and deliver to
Seller
on the Closing Date, four million five hundred thousand (4,500,000) shares of
its privately held Common Stock, $.001 par value per share (the 'Shares"). After
the Buyer becomes publicly traded, the Shares will be exchanged one for one Into
Common Shares of Restricted Rule 144 publicly traded stock. Seller and Buyer
agree to execute any other documents, representations and warranties required
to qualify the issuance of the shares pursuant to Rule 144 of the Securities
Act of 1933.
4. Closing. The closing shall take place on the Closing Date at the United
States offices of the Buyer at the offices of Juina Mining Company, Avenida
Novo do Maio, PCA Da Biblio, Juina, MT., Brazil at 4:00 p.m. local time or such
other time and place as the parties may agree upon in writing.
5. Deliveries at Closing. At the closing on the Closing Date:
(a) Peller shall deliver to Buyer such deeds, assignment.3 and other
instruments of sale, conveyance, assignment and trar.sfer as are sufficient in
the opinion of Buyer and its counsel to vest In Buyer and Its successors or
assigns the absolute, legal and equitable titlea to all of the Acquired
Assets.
(b) Buyer shall deliver to Seller stock certificates representing four
million
five hundred thousand (4,500,000) shares of Buyers Common Stock.
6. Representations and Warranties of Seller. Seller hereby represents and
warrants to Buyer that:
(a) Seller is a limited partnership duty organized, validly existing and
In
good standing under the laws of the Country of Brazil. Seller has the
requisite
power and authority to own and operate its assets, properties and business
and
to carry on Its business as now conducted.
(b) The execution and delivery of this Agreement and the consummation of
the
transactions contemplated hereby have been duty authorized and approved by
the
owners of the Seller, and, when executed by the authorized representative of
Seller, this Agreement will constitute a legal, valid and binding agreement
of
Seller, except as such enforcement may be limited by bankruptcy, Insolvency
or
similar laws affecting creditors' rights generally or by the scope of
equitable remedies which may be available.
(c) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby will not result in a breach of the terms
and conditions of, or result In a loss of rights under, or result In the
creation of any lien, charge or encumbrance upon, any of the Acquired Assets
pursuant to (i) Seller's Articles of Incorporation, by laws or other charter
documents, (ii) any franchise, mortgage, deed of trust. ease, license, permit,
agreement, instrument of undertaking to which Seller is a party or by which It
or any of Its properties are bound, or (ii) any statute, rule, regulation,
order, judgment, award or decree.
(d) Seller has good and marketable title to the Property and the Acquired
Assets, free and clear of any liens or encumbrances, and has the full right,
power and authority to convey the Acquired Assets to the Buyer free and clear
of all such liens, claims and encumbrances, other than the 30% carried
working
Interest In the Property being retained by the Seller and its affiliates.
(e) Seller is not subject to any material liability, absolute or
contingent, which has not been disclosed to the Buyer in writing.
(f) To the best of Seller's knowledge, there is no suit, claim, action or
proceeding now pending or threatened before any court, administrative or
regulatory agency or any basis for such a claim which may result in any
judgment, order, decree, liability or other determination which could have an
adverse effect, financial or otherwise, upon the Acquired Assets. No such
judgment, order or decree has been entered, which has or could have such
effect.
(g) To the best of Seller's knowledge, Seller has all licenses and
permits necessary to conduct mining operations on the Property. No violations
are or have been recorded In respect of such licenses or permits and ro
proceeding is pending or threatened which could result In the revocation or
limitation of any
of such licenses or permits.
(h) Except as set forth in Exhibit A to this Agreement, no consent is
necessary to effect the transfer to Buyer of the Acquired Assets and,
upon the consummation of the transactions contemplated hereby, Buyer
will be entitled to use the Acquired Assets to the full extent that Seller
used the same immediately prior to the transfer of the Assets.
7. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller that:
(a) Buyer is a corporation duly organized, validly existing and In good
standing under the laws of the State of Nevada, and has full corporate power
and authority to enter into this Agreement and to carry cut Its obligations
hereunder.
(b) Buyer has taken all requisite corporate action to authorize and
approve the execution of delivery of this Agreement and the consummation of
the transactions contemplated hereby, and this Agreement constitutes a legal,
valid and binding agreement of Buyer.
(c The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby will not violate the Certificate of
Incorporation or the Bylaws of Buyer or any agreement, contract or other
instrument to which Buyer Is a party, or any statute, rule, regulation,
order, judgment, award or decree.
(d) The authorized capital stock of Buyer consists of 25,000,000 shares of
Common Stock, per value $-001 per share, of which 1,600,000 shares
are issued and outstanding on the date of this Agreement. All
outstanding shares of stock of Buyer are duly authorized, validly issued,
fully paid and nonassessable. There are no shares of c,3pital stock or
other securities of the Buyer outstanding except for the outstanding
shares of Common Stock described In this Section 7(d), and there are no
outstanding options, warrants or rights to purchase any securities of the
Buyer.
(e) The Shares, when issued, sold and delivered in accordance with the
terms of this Agreement, will be duly and validly Issued, fully paid and
nonessessable.
(f) Buyer is not a Party to any contract, agreement, lease, license,
arrangement, or commitment.
(g) There is no litigation, proceeding or investigation pending or, to
the
knowledge of Buyer, threatened against Buyer affecting any of its assets or
properties that could result, either In any case or In the aggregate, In any
material adverse change in the assets, properties or business of Buyer, or
that could Impair the validity of this Agreement or any act:on to be taken
pursuant to this Agreement.
(h) Neither this Agreement nor any exhibit to this Agreement nor any
written statement or certificate furnished by Buyer n connection with this
Agreement contains an untrue statement of a material fact or omits to state a
fact that is necessary in order to make the statements contained herein and
therein, in light of the circumstances under which they are made, not
materially misleading.
8. Conditions Precedent to the Obligations of Buyer. All obligations of Buyer
under this Agreement are, at its option, subject to fulfillment of each of
the following conditions prior to or at the closing:
(a) All material representations and warranties of Seller made in this
Agreement or In any exhibit hereto delivered by Seller shall be true and
correct as of the Closing Date with the same force and effect as if made on
and as of that date.
(b) Seller shall have performed and complied with all agreements,
covenants and conditions required by this Agreement to be performed or
complied with by Seller prior to or at the Closing Date.
9. Conditions Precedent to the Obligations of Seller. All obligations of
Seller under this Agreement are, at its option, subject to fulfillment of each
of the following conditions prior to or at the closing:
(a) All material representations and warranties of Buyer made In this
Agreement or In any exhibit hereto delivered by Buyer shall be true and
correct on and as of the Closing Date with the same force and effect as If
made on and
as of that date.
(b) Buyer shall have performed and Complied with all agreements and
conditions required by this Agreement to be performed or complied with by
Buyer prior to or at the Closing Date.
10. Eurther Assurances. Following the closing, Seller agrees to take- such
actions and execute, acknowledge and deliver to Buyer such further
Instruments of assignment, conveyance and transfer and take any other action
as Buyer may reasonably request in order to more effectively convey, sell,
transfer and assign to Buyer any of the Acquired Assets, to confirm the title
cf Buyer thereto, and to assist Buyer In exercising rights with respect to
the
Acquired Assets.
11. Survival of Representations and Warranties. All representations and
warranties made by each of the parties hereto shall survive the closing for a
period of three years after the Closing Date.
12. Indemnification.
(a) Seller agrees to Indemnify, defend and hold harmless Buyer against
any and all claims, demands, losses, costs, expenses, obligations,
liabilities
and damages, Including Interest, penalties and reasonable attorneys' fees,
Incurred by Buyer arising, resulting from, or relating to any breach of, or
failure by Seller to perform, any of Its representations, warranties.
covenants or agreements In this Agreement or in any exhibit or other document
furnished or to be furnished or to be furnished by Seller under this
Agreement.
(b) Buyer agrees to indemnify, defend and hold harmless Seller against
any and all claims, demands, losses, costs, expenses, obligations,
liabilities
and damages, Including interest, penalties and reasonable i9ttorneye fees,
Incurred by Seller arising, resulting from or relating to any breach of, or
failure by Buyer to perform, any of its representations, warranties, covenants
or agreements In this Agreement.
13. General Provisions.
13.1 Construction. This Agreement shall be construed and enforced in
accordance with the laws of the State of Nevada.
13.2 Notices. All notification, requests, demands and other communications
contemplated under this Agreement shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United
States
express, certified or registered in mail, postage prepaid, addressed to the
following parties, their successors In interest or their permitted assignees
at
the following addresses, or at such other addressees as the parties may
designate by written notice In the manner aforesaid:
Seller:
Mineracao Juina Mirim Ltda.
Av. Novo de Maio I PCA Da Biblio
Juina, MT, Brazil 78320-000
Attention: Nelson Ferreira De Matos, Director
Buyer:
Juina Mining Company, Inc.
350 South Center Street, Suite 411
Reno, Nevada 89501
Attention: Noel M. Frenzel, President
13.3 Assignment. This Agreement shall not be assignable by any party
without
prior written consent of the other parties, Nothing contained In this
Agreement,
express or implied, is intended to confer upon any person or entity other
than
the parties to this Agreement and their successors and assigns, any rights or
remedies under this Agreement unless expressly so stated to the contrary.
13.4 Remedies. Except as otherwise expressly provided herein, none of the
remedies set forth in this Agreement are intended to be exclusive, and each
party shall have all other remedies now or hereafter existing at law, In
equity,
by statute or otherwise. The election of any one or more remedies shall not
constitute a waiver of the right to pursue other available remedies.
13.5 Attorney's Fees and Litigation Costs. If an legal action is brought
for
the enforcement of this Agreement or because of an alleged dispute, breach,
default or misrepresentation in connection with any of this Agreement,
- -the prevailing party shall be entitled to recover Its reasonable attorneys'
fees and other costs incurred in such proceeding or other legal action, in
addition to any other relief to which it may be entitled, Including but not
limited to post-judgment costs.
13.6 Entire Agreement. This Agreement and the exhibits and other matter
hereof,
and supersede all prior agreements, understandings, discussions, negotiations
and commitments of any kind. This Agreement may not be amended or
supplemented,
nor may any rights hereunder be waived, except In a writing signed by each of
the parties affected thereby.
13.7 Section Headings. The section headings In this Agreement are included
for convenience only, are not a part of this Agreement and shall not be used
in
construing it.
13.8 Severability. In the event that any provision or any part of this
Agreement is held to be illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall not affect the validity or
enforceability
of any other provision or part of this Agreement.
13.9 Counterparts. 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 instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above mentioned.
BUYER:
JUINA MINING COMPANY, INC.
A Nevada corporation
By: /s/ Noael M. Frenzel
Noel M. Frenzel, President
SELLER:
MINERACAO JUINA MIRIM LTDA., a Brazilian company
A Brazilian company
By: /s/ Nelson Ferreira De Matos
Nelson Ferreira De Matos, Director
WITNESS:
By: /s/ Odette Maria Biava
Odette Maria Biava, an Individual
By:/s/ Adilso Krefla
Adilso Krefta, an Individual
EXHIBIT A
LIST OF ACQUIRED ASSETS OF
MINERACAO JUINA MIRIM LTDA
Prop" 1000 detailed In research authorization request file #866-787/85 to the
Brazilian National Department of Mineral Production, transferred and assigned
on the 26th of February. 1996.
EXHIBIT 10.6 FIRST AMENDMENT TO THE ASSET PURCHASE AGREEMENT
FIRST AMENDMENT
OF
ASSET PURCHASE AGREEMENT
This FIRST AMENDMENT OF ASSET PURCHASE AGREEMENT is entered into this 21ST
day of May 1999 by and between Juina Mining Company, Inc., a Nevada
corporation ("Buyer") and Mineracao Juina Mirim Ltda, a Brazilian company
("Seller") with respect to the following:
RECITALS
A. By the Asset Purchase Agreement dated November 7,
1997,
the Seller sold and the Buyer bought a 70% working interest in that certain
mining concession with the mineral and mining rights to a 1,000 hectare
parcel
believed to contain diamond reserves, located in the District of Juina, State
of
Mato Grosso, Brazil, known as Brazilian Department of Mineral Production File
Number 866.787-85 (the "Property").
B. The parties desire to amend that Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
herein
and in light of the recitals stated above, the parties hereto agree as
follows:
1. Amendment of Article 1. Purchase and Sale of Assets.
Article 1. Is amended to read:
1 . Purchase and Sale of Assets. On the terms and subject to
the
conditions set forth in this Agreement, Seller agrees to sell, convey,
assign,
transfer and deliver to Buyer and Buyer agrees to purchase from Seller, at
the
closing on November7, 1997, or on such earlier or later date as may be
mutually
agreed upon by the Buyer and the Seller ("Closing Date") a 70% Working
Interest
in the Property ("Acquired Assets"). For the purposes of this Agreement,
Working
Interest is defined as a share of the gross profits derived from the revenue
generated by the mining and selling of diamonds from the Property. Gross
profits
are the before tax revenues remaining from the sale of diamonds after
deducting
operating costs of goods sold, including all recovery and operating expenses.
Gross profits exclude all exploration and development costs and all expenses
occurring outside of Brazil, which expenses will be borne by Buyer.
Buyer:
JUINA MINING CORPORATION, A NEVADA CORPORATION
For its wholly owned subsidiary
JUINA MINING COMPANY, INC., A NEVADA
CORPORATION
By:
Date:
James McFadden, its Director
350 South Center Street
Reno, Nevada 89501
Facsimile Number (775) 786-2931
Telephone Number (775) 786-0225
Seller:
MINERACAO JUINA MIRIM, Ltda
By:
Date:
Nelson Ferreira De Matos, Director
Av. Nove de Maio I PCA Da Biblio
Juina, MT, Brazil 78320-000
Facsimile Number 011-55-65-566-1596
Telephone Number 011-55-65-566-3387
EXHIBIT 10.(vi) ASSIGNMENT OF WORKING INTEREST
ASSIGNMENT OF WORKING INTEREST
This Assigrunent of Working Interest (the "Assignment") is
entered into this 21ST day of May 1999 by and between Mineracao Juina Mirim
Ltda, a Brazilian company ("Assignee"), and Kevin Smokowski, an individual
("Assignee 1"), Richard A. Goldman, an Individual ("Assignee 2"), Blue
Diamond
Marketing ("Assignee 3") and Noel M. Frenzel, an individual ("Assignee 4")
with
respect to the following:
RECITALS
A. Assignor owns a 30% Working Interest in that certain
mining
concession with the mineral and mining rights to a 1,000 hectare parcel
believed
to contain diamond reserves, located in the District of Juina, State of Mato
Grosso, Brazil, known as Brazilian Department of Mineral Production File
Number
866.787-85 (the "Property").
B. Assignor has agreed to assign a portion of its
Working
Interest in the Property to the Assignees pursuant to the terms and
conditions
of this Agreement. The Assignor will benefit from the Assignees' services for
Juina Mining Corporation by virtue of the Assignor's stock ownership of Juina
Mining Corporation.
NOW, THEREFORE, in consideration of the mutual agreements
herein
and in light of the recitals stated above, the parties hereto agree as
follows:
I . Assignment of Working Interest
Assignor hereby assigns to the Assignees the percentage
Working
Interest in the Property set forth in the following table.
Assignee - I Kevin Smokowski, an individual 1/6 of 1%
(For the first year following the
effective date of this agreement, Mr.
Smokowski's interest is increased to
1/3 of 1%)
Assignee - 2 Richard A. Goldman, an individual 5/6 of 1%
Assignee - 3 Blue Diamond Marketing 2%
Assignee - 4 Noel M. Frenzel, an individual 3%
The percentages or fractional percentages assigned hereunder are percentages
of
the entire Working Interest. After this assignment, Assignor will hold a
23-5/6%
Working Interest; thereafter Assignor will hold a 24% Working Interest. For
the
purposes of this Agreement, Working Interest is defined as a share of the
gross
profits derived from the revenue generated by the mining and selling of
diamonds
from the Property. Gross profits are the before US tax revenues remaining
from
the sale of diamonds after deducting operating costs of goods sold, including
all recovery, operating expenses, and taxes in Brazil. Gross profits exclude
all
exploration and development costs and all expenses occurring outside of
Brazil,
which expenses will be borne by Buyer.
2. Consideration for Working Interest
In consideration for the Working Interest assigned to the
Assignee by Assignor pursuant to Section 1 of this Assignment, each Assignee
has
performed unrecompensed services for Juina Mining Corporation.
3. Term
The working Interest is hereby assigned effective on March
15,
1999 and will remain in effect for the productive life of the Property.
4. Further Acts
All parties agree to execute any other documents, agreements,
instruments or certificates and take any other action necessary in order to
implement the terms and intent of this Assignment.
5 Representations and Warranties of Assignee
Each Assignee hereby represents and warrants to Assignor as follows:
5.1 Acquisition Without View to Distribution.
The Assignee hereby represents and warrants (i) that it is
acquiring the Working Interest for its own account for investment and not
with
a
view to resale or public distribution of the Working Interest, and (ii) that
no
other person has any beneficial interest in or right to acquire the Interest
or
any portion of the working Interest.
5.2 Sophistication and Knowledge
The Assignee personally possesses the requisite knowledge and
experience or, together with his professional advisors, has such knowledge
and
experience that he is capable of evaluating the merits and risks of his
acquisition of the Working Interest.
5.3 Access to and Review of Information
The Assignee acknowledges that he has received and reviewed
Assignor's business information including all of the infon-nation regarding the
Property and Juina Mining Corporation and such other information as may be
necessary or desirable to evaluate the merits and risks of this investment.
5.4 Acknowledgment of Investment Risks
The Assignee has had an opportunity to ask questions and obtain
additional information regarding the Property and Juina Mining Corporation. The
assignee understands the risks involved in his investment and the fact that
there is no assurance that he will earn a profit or receive any return on his
investment.
5.5 Acknowledgment of Assignor's Reliance
The Assignee acknowledges that Assignor has made no
representations or warranties concerning Juina Mining Corporation, the
Property
or the Working Interest, except as contained in this Assignment. Assignor is
relying on the truth and accuracy of the Assignee's covenants,
representations
and warranties in connection with this assignment of the Working Interest.
6. Representations and Warranties of Assignor
Assignor hereby represents and warrants to the Assignee that
Assignor is delivering to the Assignee good title to the Working Interest, and
the Working Interest will be validly assigned and fully paid pursuant to this
Assignment, free of any claims or encumbrances other than the terms of the
working interest in the Property owned by the Assignor.
7. Restrictions on Transfer
7.1 Restrictions on Transfer
The Working Interest will be transferable only in compliance
with the provisions of the Securities Act of 1933, as amended (the"Act"), and
the rules and regulations promulgated thereunder, the provisions of any
applicable state law and the provisions of this Section 7.
7.2 Restrictive Legends
Assignor shall cause the following legend, or a legend
substantially equivalent thereto, to be placed upon any agreement or
certificate
evidencing the Working Interest or any portion thereof, unless counsel for
the Assignor is of the opinion that the legend is unnecessary:
8. Notice
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED WITHOUT
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES ACT OF 1933 ("THE
SECURITIES ACT") AND THE BLUE SKY LAWS OF ANY JURISDICTION. SUCH SECURITIES
MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF,BENEFICIALLY
OR ON THE RECORDS OF THE CORPORATION, UNLESS THE SECURITIES REPRESENTED BY
THIS CERTIFICATE HAVE BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
AND
APPLICABLE BLUE SKY LAWS OR THERE HAS BEEN DELIVERED TO THE CORPORATION AN
OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY SATISFACTORY TO THE
CORPORATION TO THE EFFECT THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT
REQUIRED.
Notice will be deemed to be given by one party to the other
parties of this Assignment upon personal delivery by messenger, air courier,
express mail or certified registered mail, return receipt requested, or upon
facsimile or telegram, or three days after mailing by first class mail by the
party giving the notice, addressed to the parties as follows, or to any other
address or facsimile numbers provided tot he parties in writing in accordance
with this Assignment by the party making the change:
If to Assignor:
The address of Assignor as listed below Assignor's authorized signature.
If to the Assignee:
The address of Assignee as listed below Assignee's authorized signature.
9. Injunctive Relief
9.1 Damages Inadequate
Each party acknowledges that it would be impossible to
measure
in money the damages to the other party if there is a failure to comply with
any
covenants or provisions of this Assignment, and agrees that in the event of
any
breach of any covenant or provision, the other party to this Assignment will
not have an adequate remedy of law.
9.2 Injunctive Relief
It is therefore agreed that the other party to this Assignment
who is entitled to the benefit of the covenants and provisions of this
Assignment which have been breached, in addition to any other rights or remedies
which they may have, shall be entitled to immediate injunctive relief to enforce
such covenants and provisions, and that in the event that nay such action or
proceeding is brought in equity to enforce them, the defaulting or breaching
party will not urge as a defense that there is an adequate remedy of law.
10. Waivers
If any party shall at any time waive any rights hereunder
resulting from any breach by the other party of any of the provisions of this
Assignment, such waiver is not to be construed as a continuing waiver of other
breaches of the same or other provisions of this Assignment. Resort to any
remedies referred to herein shall not be construed as a waiver of any other
rights and remedies to which such party is entitled under this Assignment or
otherwise.
11. Successors and Assigns
Each covenant and representation of this assignment shall inure
to the benefit of and be binding upon each of the parties, their personal
representatives, assigns and other successors in interest.
12. Attorney's Fees
In the event that either party must resort to legal action in
order to enforce the provisions of this Assignment or to defend such action, the
prevailing party shaft be entitled to receive reimbursement from the
non-prevailing party for all reasonable attorney's fees and all other costs
incurred in commencing or defending such action, or in enforcing this
Assignment, including but not limited to post judgment costs.
13. Entire and Sole Assignment
This Assignment constitutes the entire agreement between the
parties and supersedes all agreements, representations, warranties, statements,
promises and undertakings, whether oral or written, with respect to the
subject matter of this Assignment. This Assignment may be modified only by
written agreement signed by all parties.
14. Governing law
This Assignment shall be governed by and construed in accordance
with the laws of the State of Nevada.
15. Severability
The provisions of this Assignment are meant to be enforced
severally so that the determination that one or more provisions are
enforceable
or invalid shall not affect or render invalid any other provision of this
Assignment, and such other provisions shall continue to be in full force in
accordance with their terms.
16. Rights Cumulative
All rights and remedies under this Assignment are cumulative,
and none is intended to be exclusive of another. No delay or omission in
insisting upon the strict observance of performance of any provision of this
Assignment, or in exercising any right or remedy, shall be construed as a
waiver
or relinquishment of such provision, nor shall it impair such right or
remedy.
Every right and remedy may be exercised from time to time and as often as
deemed
expedient.
17. Captions
The paragraph and other headings contained in this Assignment
are for reference purposes only, and shall not limit or otherwise affect the
meaning hereof
18. Legal Holidays
In the case where the date on which any action required to be
taken, document required to be delivered or payment required to be made is not
a business day in Los Angeles, California, such action, delivery or payment need
not be made on that date, but may be made on the next succeeding business day.
19. Counterparts
This Assignment may be executed simultaneous in any number of counterparts, each
of which counterparts shall be deemed to be an original, and such counterparts
shall constitute but one of the same instrument.
20. Parties
This Assignment shall inure solely to the benefit of and
shall
be binding upon the parties hereto and their respective successors, legal
representatives and assigns, and no other person shall have or be construed
to have any equitable right, remedy or claim under or in respect of or by
virtue of
this Assignment or any provision contained herein.
21. Authority
All signatories to this Assignment do hereby declare that
they have the authority to execute this Assignment on behalf of the parties to
this Assignment.
Assignor:
MINERACAO JUINA MIRIM, Ltda
By:
Nelson Ferreira De Matos, Director
Av. Nove de Maio 1 PCA Da Biblio
Juina, MT, Brazil 78320-000
Facsimi/eNumber 011-55-65-566-1596
TelephoneNumber 011-55-65-566-3387
Assignee - 1
Kevin Smokowski, an Individual
By:
Kevin Smokowski
303 S. Broadway, Suite B-212
Denver, Colorado 80209
Facsimile Number (303) 832-7528
Telephone Number (303) 832-4316
Assignee - 2
Richard A. Goldman, an Individual
By:
Richard A. Goldman
1203 Macon Avenue
Pittsburgh, Pennsylvania 15218
Facsimile Number (412) 362-5229
Telephone Number (412) 241-2154
Assignee - 3
Blue Diamond Marketing
By:
Steven Stucker, President
2533 N. Carson Street, Suite 1700
Carson City, Nevada 89706
Telephone Number (775) 883-8484
Facsimile Number (775) 883-4874
Assignee - 4
Noel M. Frenzel, an Individual
By:
Noel M. Frenzel
5150 Mae Anne Avenue, Suite 213-85
Reno, Nevada 89523
Facsimile Number (775) 787-7505
Telephone Number (775) 787-7505
EXHIBIT 21. SUBSIDIARIES OF THE COMPANY
SUBSIDIARIES OF JUINA MINING CORPORATION
Juina Mining Company, Inc.
350 South Center Street, Suite 411
Reno, Nevada 89501
775-786-0225
Juina Diamond Minercao Ltda.
Av. Nove de Maio / PCA Da Biblio
Juina, MT, Brazil 78008-000
011-55-65-566-2287
