Exhibit 10.18
WARRANTS AGREEMENT
between
NEWLANDS OIL & GAS INC.
("Newlands")
and
CYBERBANK CORP.
("Cyberbank")
WARRANTS AGREEMENT
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THIS AGREEMENT (the "Agreement") is entered into effective the 6th of November
2000, by and between NEWLANDS OIL & GAS INC., a Nevada corporation (hereinafter
referred to as "Newlands"), and CYBERBANK CORP., a Korea corporation
(hereinafter referred to as "Cyberbank").
R E C I T A L S
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WHEREAS, Newlands wishes to grant warrants to Cyberbank to allow Cyberbank
to purchase common shares of Newlands; and
WHEREAS, Cyberbank wishes to acquire warrants to purchase common shares of
Newlands; and
WHEREAS, Cyberbank wishes to grant warrants to Newlands to allow Newlands to
purchase common shares of Cyberbank; and
WHEREAS, Newlands wishes to acquire warrants to purchase common shares of
Cyberbank,
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound hereby, agree as follows:
ARTICLE I -- DEFINITIONS
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1.01 In this Agreement, the following terms shall have the meanings set forth
below:
(a) "Average Trading Price" means the average trading price of the common
stock of Newlands, having $0.001 par value, for the twenty trading days
prior to November 1, 2001 determined based on the closing price on each
trading day. For the purposes of this calculation, the closing price
shall be that closing price that is quoted only from the Over-the-
Counter Bulletin Board in the United States or NASDAQ;
(b) "Exercise Period" means the period of time between November 1, 2001 and
December 31, 2001, subject to amendment by section 3.05.
1.02 Currency. All dollar amounts referred to in this agreement are in
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United States funds.
ARTICLE II -- GRANT OF WARRANTS TO CYBERBANK
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2.01 Newlands hereby agrees to grant to Cyberbank warrants to purchase
2,500,000 common shares, having $0.001 par value, of Newlands at an exercise
price of $3.20 per share (the "Newlands Warrants").
2.02 The Newlands Warrants shall be exercisable any time during the Exercise
Period.
2.03 The Newlands Warrants are subject to approval by the board of directors
of Newlands and by the US Securities and Exchange Commission (the "SEC"), such
approval to be sought and received by Newlands as soon as practicable but not
later than March 31, 2001.
2.04 The Newlands Warrants may not be assigned, transferred or sold in any
manner whatsoever.
ARTICLE III -- GRANT OF WARRANTS TO NEWLANDS
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3.01 Cyberbank hereby agrees to grant to Newlands warrants to purchase that
number of common shares, having Korean Won 5,000 par value, of Cyberbank as
determined by section 3.02 at an exercise price of $223.54 per share (the
"Cyberbank Warrants").
3.02 For the purpose of section 3.01, the number of common shares of
Cyberbank that is subject to warrants shall be:
(A) If the Average Trading Price is greater than or equal to $6.00 per
share, 35,789;
(B) If the Average Trading Price is less than $6.00 per share, then the
number shall be determined as follows:
Number of Warrants = 35,789 Warrants x (Average Trading Price/$6.00
per Share)
3.03 The Cyberbank Warrants shall be exercisable any time during the Exercise
Period.
3.04 The Cyberbank Warrants are subject to approval by the board of directors
of Cyberbank, such approval to be sought and received by Cyberbank as soon as
practicable but not later than March 31, 2001.
3.05 Newlands shall calculate the Average Trading Price and deliver such
calculation to Cyberbank on or before November 6, 2001. Cyberbank shall have
until November 12, 2001 to deliver notice of dispute of the calculation of the
Average Trading Price. If there is a dispute regarding the calculation of the
Average Trading Price, the parties agree to be bound by the decision of an
arbitrator who has been mutually determined by the parties. In case of dispute,
the Exercise Period shall be increased by the number of days between November
1, 2001 and the date of the arbitrator's decision.
3.06 The Cyberbank Warrants may not be assigned, transferred or sold in any
manner whatsoever.
ARTICLE IV -- MISCELLANEOUS
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4.01 Other Expenses. Except as otherwise provided in this Agreement, each
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party will pay all of its expenses in connection with the negotiation,
execution, and implementation of the transaction contemplated under this
Agreement.
4.02 Notices. All notices, requests, demands, waivers and other
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communications required or permitted to be given under this Agreement will
be in writing and will be deemed to have been duly given: (a) if delivered
personally or sent by facsimile, on the date received, (b) if delivered by
overnight courier, on the second day after delivery to the overnight courier,
and (c) if mailed, ten days after mailing with first-class, postage prepaid. Any
such notice will be sent as follows:
TO CYBERBANK:
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Cyberbank Corp.
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇-▇
▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇▇▇ 137-855
Facsimile: ▇▇-▇-▇▇▇▇-▇▇▇▇
TO NEWLANDS
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Newlands Oil & Gas, Inc.
#▇▇▇▇ - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
For determining the date on which any notice shall have been received, the date
of delivery will be the date in Los Angeles, California at the time of delivery.
4.03 Controlling Law. This Agreement will be construed, interpreted and
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enforced in accordance with the substantive laws of the State of Nevada, without
giving effect to its conflicts of laws provisions.
4.04 Headings. Any table of contents and Section headings in this Agreement
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are for convenience of reference only and will not be considered or referred to
in resolving questions of interpretation.
4.05 Benefit. This Agreement will be binding upon and will inure to the
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exclusive benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. No party hereto may assign any rights
or delegate any duties hereunder without the prior written consent of the other
parties hereto and any prohibited assignment or delegation will be deemed null
and void.
4.06 Partial Invalidity. The invalidity or unenforceability of any particular
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provision of this Agreement will not affect the other provisions hereof, and
this Agreement will be construed in all respects as if such invalid or
unenforceable provisions were omitted. Further, there will be automatically
substituted for such invalid or unenforceable provision a provision as similar
as possible which is valid and enforceable.
4.07 Counterparts and Facsimiles. This Agreement may be executed
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simultaneously in two (2) or more counterparts each of which will be deemed an
original and all of which together will constitute but one and the same
instrument. The signature page to this Agreement and all other documents
required to be executed at Closing may be delivered by facsimile and the
signatures thereon will be deemed effective upon receipt by the intended
receiving party.
4.08 Interpretation. All pronouns and any variation thereof will be deemed
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to refer to the masculine, feminine, neuter, singular or plural as the identity
of the person or entity, or the context, may require. Further, it is
acknowledged by the parties that this Agreement has undergone several drafts
with the negotiated suggestions of both; and, therefore, no presumptions will
arise favoring either party by virtue of the authorship of any of its provisions
or the changes made through revisions.
4.09 Entire Agreement; Waivers. This Agreement constitutes the entire
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agreement between the parties hereto with regard to the matters contained herein
and it is understood and agreed that all previous undertakings, negotiations,
letter of intent and agreements between the parties are merged herein. The
failure of any party to this Agreement to assert any of its rights under this
Agreement or otherwise will not constitute a waiver of such rights. Neither the
failure nor any delay on the part of any party hereto in exercising any rights,
power or remedy hereunder will operate as a waiver thereof or of any right,
power or remedy; nor will any single or partial exercise of any right, power or
remedy preclude any further or other exercise thereof, or the exercise of any
other right, power or remedy.
4.10 Legal Fees and Costs. In the event any party hereto incurs legal expenses
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to interpret and enforce any provision of this Agreement, the prevailing party
will be entitled to recover such legal expenses, including, without limitation,
attorney's fees, costs and disbursements, in addition to any other relief to
which such party will be entitled.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
CYBERBANK CORP.
By: /s/ ▇.▇. ▇▇▇
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Title: President
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NEWLANDS OIL & GAS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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Title: President
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