EXHIBIT 10.33
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of October
2, 2000, ("this Agreement"), is made by and between Eurogas,
Inc. a Utah corporation (the "Company"), and the person
named on the signature page hereto (the "Investor").
W I T N E S S E T H:
WHEREAS, upon the terms and subject to the conditions
of the Common Stock Purchase Agreement, dated as of October
2, 2000, between the Investor and the Company (the
"Purchase Agreement"), the Company has agreed to issue and
sell to the Investor shares of the Company's common stock,
$.001 par value (the "Shares"), upon the terms and subject
to the conditions set forth in this Agreement and the
Purchase Agreement; and
WHEREAS, to induce the Investor to execute and deliver
the Purchase Agreement, the Company has agreed to provide
certain registration rights under the Securities Act of
1933, as amended, and the rules and regulations thereunder,
or any similar successor statute (collectively, the
"Securities Act"), and applicable state securities laws with
respect to the Shares;
NOW, THEREFORE, in consideration of the premises and
the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Investor hereby
agrees as follows:
I. Definitions.
(a) As used in this Agreement, the following terms
shall have the following meaning:
(i) "Closing Date" as used in this Agreement and the
Purchase Agreement shall mean the date the purchase price
for the Shares, less an escrow fee of $15,000, is wired to
the Company per its written instructions.
(ii) "Investor" means the Investor and any transferee
or assignee who agrees to become bound by the provisions of
this Agreement in accordance with Section 9 hereof.
(iii) "Register," "Registered" and "Registration"
refer to a registration effected by preparing and filing a
Registration Statement or Statements in compliance with the
Securities Act and pursuant to Rule 415 under the Securities
Act or any successor rule providing for offering securities
on a continuous basis ("Rule 415"), and the declaration or
ordering of effectiveness of such Registration Statement by
the United States Securities and Exchange Commission (the
"SEC").
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(iv) "Registrable Securities" means the Shares issued
upon closing and any additional shares of the Company's
Common Stock that may be required to be issued to the
Investor pursuant to the terms of this Agreement or the
Purchase Agreement..
(v) "Registration Statement" means a registration
statement of the Company under the Securities Act.
(b) As used in this Agreement, the term Investor
includes (i) each Investor (as defined above) and (ii) each
person who is a permitted transferee or assignee of the
Registrable Securities pursuant to Section 9 of this
Agreement.
(c) Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings set forth
in the Purchase Agreement.
2. Registration.
(a) Mandatory Registration. The Company shall prepare
and file with the SEC, no later than thirty (30) calendar
days after either (i), receipt by the Company of written
notice via facsimile transmission from the Investor that the
remaining Shares multiplied by the current closing bid price
of the Company's Common Stock is less than 125% of the
amount needed to net the Investor $2,489,750 or (ii) the
date of receipt by the Company of written notice via
facsimile transmission from the Investor that all 7,000,000
Shares have been sold but the net amount realized by the
Investor after the payment of customary broker's fees is
still less than $2,489,750, a Registration Statement
covering 200% of the number of shares of Common Stock
needed by Investor to realize said net amount of $2,489,750
based on the closing bid price of the Company's Common Stock
on the date notice is received by the Company from the
Investor via facsimile transmission. In the event the
Registration Statement is not filed within thirty (30)
calendar days after receipt by the Company of written notice
from the Investor, the Company shall pay the Investor 2% of
the remaining balance of $2,489,750 not realized by the
Investor for each 30 day period thereafter until the
Registration Statement is filed. The above damages shall
continue until the obligation is fulfilled and shall be paid
within ten (10) business days after each thirty (30)
calendar day period, or portion thereof on a pro rata basis,
until the Registration Statement is filed. Failure of the
Company to make payment within said ten (10) business days
shall be considered a default.
The Company acknowledges that its failure to file with
the SEC, said Registration Statement no later than thirty
(30) calendar days after receipt by the Company of notice
from the Investor pursuant to Section 2(a) will cause the
Investor to suffer damages in an amount that will be
difficult to ascertain. Accordingly, the parties agree that
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it is appropriate to include in this Agreement a provision
for liquidated damages. The parties acknowledge and agree
that the liquidated damages provision set forth in this
section represents the parties' good faith effort to
quantify such damages and, as such, agree that the form and
amount of such liquidated damages are reasonable and will
not constitute a penalty. The payment of liquidated damages
shall not relieve the Company from its obligations to
register the Common Stock and deliver the Common Stock
pursuant to the terms of this Agreement and the Purchase
Agreement.
(b) Payment by the Company. If the Registration
Statement covering the Registrable Securities required to be
filed by the Company pursuant to Section 2(a) hereof is not
declared effective within ninety (90) calendar days
following the date the Company receives notice from the
Investor pursuant to Section 2(a), then the Company shall
pay the Investor 2% of the purchase price paid by the
Investor for the Registrable Securities pursuant to the
Purchase Agreement for every thirty (30) day period, or
portion thereof, following the ninety (90) calendar day
period until the Registration Statement is declared
effective. Notwithstanding the foregoing, the amounts
payable by the Company pursuant to this provision shall not
be payable to the extent any delay in the effectiveness of
the Registration Statement occurs because of an act of, or a
failure to act or to act timely by the Investor or its
counsel. The above damages shall continue until the
obligation is fulfilled and shall be paid within ten (10)
business days after each thirty (30) day period, or portion
thereof, until the Registration Statement is declared
effective. Failure of the Company to make payment within
said ten (10) business days shall be considered a default.
The Company acknowledges that its failure to have the
Registration Statement declared effective within said ninety
(90) calendar day period following the date the Company
receives notice from the Investor pursuant to Section 2(a)
will cause the Investor to suffer damages in an amount that
will be difficult to ascertain. Accordingly, the parties
agree that it is appropriate to include in this Agreement a
provision for liquidated damages. The parties acknowledge
and agree that the liquidated damages provision set forth in
this section represents the parties' good faith effort to
quantify such damages and, as such, agree that the form and
amount of such liquidated damages are reasonable and will
not constitute a penalty. The payment of liquidated damages
shall not relieve the Company from its obligations to
register the Common Stock and deliver the Common Stock
pursuant to the terms of this Agreement or the Purchase
Agreement.
3. Obligation of the Company. In connection with
the registration of the Registrable Securities, the Company
shall do each of the following:
(a) Prepare promptly, and file with the SEC within
thirty (30) days of the date the Company receives notice
from the Investor pursuant to Section 2(a), a Registration
Statement and thereafter use its best efforts to cause such
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Registration Statement relating to Registrable Securities to
become effective the earlier of (i) five business days after
notice from the SEC that the Registration Statement may be
declared effective, or (ii) ninety (90) days after the date
the Company receives notice from the Investor pursuant to
Section 2(a), and keep the Registration Statement effective
at all times until the earliest (the "Registration Period")
of (A) the date that is two years after the date the Company
receives notice from the Investor pursuant to Section 2(a)
(B) the date when the Investor may sell all Registrable
Securities under Rule 144 without volume or other
restrictions or limits or (C) the date the Investor no
longer owns any of the Registrable Securities, which
Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein)
shall not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading,
except for any information given or omitted to be given by
the Investor, provided however, the Investor disposes of the
Shares in accordance with the Purchase Agreement;
(b) Prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the
Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary to keep
the Registration effective at all times during the
Registration Period, and, during the Registration Period,
comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities of
the Company covered by the Registration Statement until such
time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in
the Registration Statement;
(c) Furnish to the Investor whose Registrable
Securities are included in the Registration Statement and
its legal counsel identified to the Company, (i) promptly
after the same is prepared and publicly distributed, filed
with the SEC, or received by the Company, one (1) copy of
the Registration Statement, each preliminary prospectus and
prospectus, and each amendment or supplement thereto, and
(ii) such number of copies of a prospectus, including a
preliminary prospectus, and all amendments and supplements
thereto and such other documents, as such Investor may
reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such Investor;
(d) Use reasonable efforts to (i) register and qualify
the Registrable Securities covered by the Registration
Statement under such other securities or blue sky laws of
such jurisdictions as the Investor who hold a majority in
interest of the Registrable Securities being offered
reasonably request and in which significant volumes of
shares of Common Stock are traded, (ii) prepare and file in
those jurisdictions such amendments (including post-
effective amendments) and supplements to such registrations
and qualifications as may be necessary to maintain the
effectiveness thereof at all times during the Registration
Period, (iii) take such other actions as may be necessary to
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maintain such registrations and qualification in effect at
all times during the Registration Period, and (iv) take all
other actions reasonably necessary or advisable to qualify
the Registrable Securities for sale in such jurisdictions:
provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to (A)
qualify to do business in any jurisdiction where it would
not otherwise be required to qualify but for this Section
3(d), (B) subject itself to general taxation in any such
jurisdiction, (C) file a general consent to service of
process in any such jurisdiction, (D) provide any
undertakings that cause more than nominal expense or burden
to the Company or (E) make any change in its articles of
incorporation or by-laws or any then existing contracts,
which in each case the Board of Directors of the Company
determines to be contrary to the best interests of the
Company and its stockholders;
(e) As promptly as practicable after becoming aware of
such event, notify each Investor of the happening of any
event of which the Company has knowledge, as a result of
which the prospectus included in the Registration Statement,
as then in effect, includes any untrue statement of a
material fact or omits to state a material fact required to
be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading, and uses its best efforts promptly to
prepare a supplement or amendment to the Registration
Statement or other appropriate filing with the SEC to
correct such untrue statement or omission, and deliver a
number of copies of such supplement or amendment to each
Investor as such Investor may reasonably request;
(f) As promptly as practicable after becoming aware of
such event, notify each Investor who holds Registrable
Securities being sold (or, in the event of an underwritten
offering, the managing underwriters) of the issuance by the
SEC of any notice of effectiveness or any stop order or
other suspension of the effectiveness of the Registration
Statement at the earliest possible time;
(g) Use its commercially reasonable efforts, if
eligible, either to (i) cause all the Registrable Securities
covered by the Registration Statement to be listed on a
national securities exchange and on each additional national
securities exchange on which securities of the same class or
series issued by the Company are then listed, if any, if the
listing of such Registrable Securities is then permitted
under the rules of such exchange, or (ii) secure designation
of all the Registrable Securities covered by the
Registration Statement as a National Association of
Securities Dealers Automated Quotations System ("NASDAQ")
"Small Capitalization" within the meaning of Rule 11Aa2-1 of
the SEC under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the quotation of the
Registrable Securities on the The Nasdaq Stock Market or if,
despite the Company's commercially reasonable efforts to
satisfy the preceding clause (i) or (ii), the Company is
unsuccessful in doing so, to secure NASD authorization and
quotation for such Registrable Securities on the over-the-
counter bulletin board and, without limiting the generality
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of the foregoing, to arrange for at least two market makers
to register with the National Association of Securities
Dealers, Inc. ("NASD") as such with respect to such
registrable securities;
(h) Provide a transfer agent for the Registrable
Securities not later than the effective date of the
Registration Statement;
(i) Cooperate with the Investor who hold Registrable
Securities being offered to facilitate the timely
preparation and delivery of certificates for the Registrable
Securities to be offered pursuant to the Registration
Statement and enable such certificates for the Registrable
Securities to be in such denominations or amounts as the
case may be, as the Investor may reasonably request and
registration in such names as the Investor may request; and,
within seven (7) calendar days after a Registration
Statement which includes Registrable Securities is ordered
effective by the SEC, the Company shall deliver, and shall
cause legal counsel selected by the Company to deliver, to
the transfer agent for the Registrable Securities (with
copies to the Investor whose Registrable Securities are
included in such Registration Statement) a form of
appropriate instruction and opinion of such counsel
acceptable for use for each conversion; and
(j) Take all other reasonable actions necessary to
expedite and facilitate distribution to the Investor of the
Registrable Securities pursuant to the Registration
Statement.
4. Obligations of the Investor. In connection with
the registration of the Registrable Securities, the Investor
shall have the following obligations;
(a) It shall be a condition precedent to the
obligations of the Company to complete the registration
pursuant to this Agreement with respect to the Registrable
Securities of a particular Investor that such Investor shall
timely furnish to the Company such information regarding
itself, the Registrable Securities held by it, and the
intended method of disposition of the Registrable Securities
held by it, as shall be reasonably required to effect the
registration of such Registrable Securities and shall timely
execute such documents in connection with such registration
as the Company may reasonably request. At least ten (10)
calendar days prior to the first anticipated filing date of
the Registration Statement, the Company shall notify each
Investor of the information the Company requires from each
such Investor (the "Requested Information") if such Investor
elects to have any of such Investor's Registrable Securities
included in the Registration Statement. If at least five
(5) calendar days prior to the filing date the Company has
not received the Requested Information from an Investor (a
"Non-Responsive Investor"), then the Company may file the
Registration Statement without including Registrable
Securities of such Non-Responsive Investor and the Company
shall not be required under the terms of this Agreement to
register such Non-Responsive Investor's Registrable
Securities at any subsequent date;
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(b) Investor by such Investor's acceptance of the
Registrable Securities agrees to cooperate with the Company
as reasonably requested by the Company in connection with
the preparation and filing of the Registration Statement
hereunder, unless such Investor has notified the Company in
writing of such Investor's election to exclude all of such
Investor's Registrable Securities from the Registration
Statement; and
(c) Investor agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind
described in Section 3(e) or 3(f), above, such Investor will
immediately discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering
such Registrable Securities until such Investor's receipt of
the copies of the supplemented or amended prospectus
contemplated by Section 3(e) or 3(f) and, if so directed by
the Company, such investor shall deliver to the Company (at
the expense of the Company) or destroy (and deliver to the
Company a certificate of destruction) all copies in such
Investor's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of
such notice.
5. Expenses of Registration. All reasonable
expenses, other than underwriting discounts and commissions
incurred in connection with registrations, filing or
qualifications pursuant to Section 3, but including, without
limitations, all registration, listing, and qualifications
fees, printers and accounting fees, and the fees and
disbursements of counsel for the Company, shall be borne by
the Company.
6. Indemnification. In the event any Registrable
Securities are included in a Registration Statement under
this Agreement:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless the Investor, the directors, if
any, of such Investor, the officers, if any, of such
Investor, each person, if any, who controls any Investor
within the meaning of the Securities Act or the Exchange Act
(each, an "Indemnified Person"), against any losses, claims,
damages, liabilities or expenses (joint or several) incurred
(collectively, "Claims") to which any of them may become
subject under the Securities Act, the Exchange Act or
otherwise, insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon any of the following
statements, omissions or violations of the Registration
Statement or any post-effective amendment thereof, or any
prospectus included therein: (i) any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or any post-effective amendment
thereof or any prospectus included therein or the omission
or alleged omission to state therein a material fact
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required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement
or alleged untrue statement of a material fact contained in
any preliminary prospectus if used prior to the effective
date of such Registration Statement, or contained in the
final prospectus (as amended or supplemented, if the Company
files any amendment thereof or supplement thereto with the
SEC) or the omission or alleged omission to state therein
any material fact necessary to make the statements made
therein, in light of the circumstances under which the
statements therein were made, not misleading or (iii) any
violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any state securities law
or any rule or regulation under the Securities Act, the
Exchange Act or any state securities law (the matters in the
foregoing clauses (i) through (iii) being, collectively,
"Violations"). The Company shall reimburse the Investor,
promptly as such expenses are incurred and are due and
payable, for any reasonable legal fees or other reasonable
expenses incurred by them in connection with investigating
or defending any such Claim. Notwithstanding anything to
the contrary contained herein, the indemnification agreement
contained in this Section 6(a) shall not (i) apply to a
Claim arising out of or based upon a Violation which occurs
in reliance upon and in conformity with information
furnished in writing to the Company or information omitted
to be furnished by or on behalf of any Indemnified Person
expressly for use in connection with the preparation of the
Registration Statement or any such amendment thereof or
supplement thereto, if such prospectus was timely made
available by the Company pursuant to Section 3(b) hereof;
(ii) with respect to any preliminary prospectus, inure to
the benefit of any such person from whom the person
asserting any such Claim purchased the Registrable
Securities that are the subject thereof (or to the benefit
of any person controlling such person) if the untrue
statement or omission of material fact contained in the
preliminary prospectus was corrected in the prospectus, as
then amended or supplemented, if such prospectus was timely
made available by the Company pursuant to Section 3(b)
hereof; (iii) be available to the extent such Claim is based
on a failure of the Investor to deliver or cause to be
delivered the prospectus made available by the Company; or
(iv) apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior written
consent of the Company, which consent shall not be
unreasonably withheld. The Investor will indemnify the
Company, its officers, directors and agents (including
Counsel) against any claims arising out of or based upon a
Violation which occurs in reliance upon and in conformity
with information furnished in writing to the Company, by or
on behalf of such Investor, expressly for use in connection
with the preparation of the Registration Statement, subject
to such limitations and conditions as are applicable to the
Indemnification provided by the Company to this Section 6.
Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the
Indemnified Person and shall survive the transfer of the
Registrable Securities by the Investor pursuant to Section
9.
(b) Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 6 of notice of the
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commencement of any action (including any governmental
action), such Indemnified Person or Indemnified Party shall,
if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly
noticed, to assume control of the defense thereof with
counsel mutually satisfactory to the indemnifying party and
the Indemnified Person or the Indemnified Party, as the case
may be; provided, however, that an Indemnified Person or
Indemnified Party shall have the right to retain its own
counsel with the reasonable fees and expenses to be paid by
the indemnifying party, if, in the reasonable opinion of
counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or
Indemnified Party and the indemnifying party would be
inappropriate due to actual or potential differing interests
between such Indemnified Person or Indemnified Party and any
other party represented by such counsel in such proceeding.
In such event, the Company shall pay for only one separate
legal counsel for the Investor; such legal counsel shall be
selected by the Investor holding a majority in interest of
the Registrable Securities included in the Registration
Statement to which the Claim relates. The failure to
deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall
not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section
6, except to the extent that the indemnifying party is
prejudiced in its ability to defend such action. The
indemnification required by this Section 6 shall be made by
periodic payments of the amount thereof during the course of
the investigation or defense, as such expense, loss, damage
or liability is incurred and is due and payable.
7. Contribution. To the extent any indemnification
by an indemnifying party is prohibited or limited by law,
the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would
otherwise be liable under Section 6 to the fullest extent
permitted by law; provided, however, that (a) no
contribution shall be made under circumstances where the
indemnifying party would not have been liable for
indemnification under the fault standards set forth in
Section 6; (b) no seller of Registrable Securities guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable Securities who
was not guilty of such fraudulent misrepresentation; and (c)
contribution by any seller of Registrable Securities shall
be limited in amount to the net amount of proceeds received
by such seller from the sale of such Registrable Securities.
8. Reports under Exchange Act. With a view to
making available to the Investor the benefits of Rule 144
promulgated under the Securities Act or any other similar
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rule or regulation of the SEC that may at any time permit
the Investor to sell securities of the Company to the public
without registration ("Rule 144"), the Company agrees to use
its reasonable best efforts to:
(a) make and keep public information available, as
those terms are understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports
and other documents required of the Company under the
Securities Act and the Exchange Act; and
(c) furnish to each Investor so long as such Investor
owns Registrable Securities, promptly upon request, (i) a
written statement by the Company that it has complied with
the reporting requirements of Rule 144, the Securities Act
and the Exchange Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports
and documents so filed by the Company and (iii) such other
information as may be reasonably requested to permit the
Investor to sell such securities pursuant to Rule 144
without registration.
9. Assignment of the Registration Rights. The rights
to have the Company register Registrable Securities pursuant
to this Agreement shall be automatically assigned by the
Investor to any transferee of in excess of fifty (50%)
percent or more of the Registrable Securities only if: (a)
the Investor agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement
is furnished to the Company within a reasonable time after
such assignment, (b) the Company is, within a reasonable
time after such transfer or assignment, furnished with
written notice of (i) the name and address of such
transferee or assignee and (ii) the securities with respect
to which such registration rights are being transferred or
assigned, (c) immediately following such transfer or
assignment the further disposition of such securities by the
transferee or assignee is restricted under the Securities
Act and applicable state securities laws, and (d) at or
before the time the Company received the written notice
contemplated by clause (b) of this sentence the transferee
or assignee agrees in writing with the Company to be bound
by all of the provisions contained herein. In the event of
any delay in filing or effectiveness of the Registration
Statement as a result of such assignment, the Company shall
not be liable for any damages arising from such delay, or
the payments set forth in Section 2(c) hereof.
10. Amendment of Registration Rights. Any provision
of this Agreement may be amended and the observance thereof
may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the
written consent of the Company and investor who hold a
majority in interest of the Registrable Securities. Any
amendment or waiver effected in accordance with this Section
10 shall be binding upon each Investor and the Company.
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11. Litigation.
(a) Forum Selection and Consent to Jurisdiction. Any
litigation based on, or arising out of, under, or in
connection with, this Agreement or any course of conduct,
course of dealing, statements (whether oral or written) or
actions of the Company or Investor shall be brought and
maintained exclusively in the courts of the State of New
York, County of Manhattan. The parties hereto hereby
expressly and irrevocably submit to the jurisdiction of the
state and federal courts of the State of New York for the
purpose of any such litigation as set forth above and
irrevocably agrees to be bound by any final judgment
rendered thereby in connection with such litigation. The
parties hereto further irrevocably consent to the service of
process by registered mail, postage prepaid, or by personal
service within or without the State of New York. The
parties hereto hereby expressly and irrevocably waive, to
the fullest extent permitted by law, any objection which it
may have or hereafter may have to the laying of venue of any
such litigation brought in any such court referred to above
and any claim that any such litigation has been brought in
any inconvenient forum. To the extent that the parties
hereto have or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment,
attachment in aid of execution or otherwise) with respect to
themselves or their property, the parties hereto hereby
irrevocably waive such immunity in respect of their
obligations under this Agreement
(b) Waiver of Jury Trial. The Investor and the
Company hereby knowingly, voluntarily and intentionally
waive any rights they may have to a trial by jury in respect
of any litigation based hereon, or arising out of, under, or
in connection with, this agreement, or any course of
conduct, course of dealing, statements (whether oral or
written) or actions of the Investor or the Company. The
Investor and Company acknowledge and agree that they have
received full and sufficient consideration for this
provision and that this provision is a material inducement
for each to enter into this Agreement.
12. MISCELLANEOUS.
(a) All pronouns and any variations thereof used
herein shall be deemed to refer to the masculine, feminine,
impersonal, singular or plural, as the identity of the
person or persons may require.
(b) Neither this Agreement nor any provision hereof
shall be waived, modified, changed, discharged, terminated,
revoked or canceled, except by an instrument in writing
signed by the party effecting the same against whom any
change, discharge or termination is sought.
(c) Notices required or permitted to be given
hereunder shall be in writing and shall be deemed to be
sufficiently given when either sent via facsimile to the
facsimile number stated in this Agreement for the Investor
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and the Company, or personally delivered or sent by
registered mail, return receipt requested, addressed: (i)
if to the Company, at Eurogas, Inc., 000 Xxxx 0000 Xxxxx,
Xxxxx 000X, Xxxxxxx, Xxxx 00000 with a copy by facsimile and
mail to Xxxxxx X. Block, Esq., Fish & Xxxxxxxxxx, P.C., 5000
Bank One Center, 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000 and
(ii) if to the Purchaser, at the address for correspondence
set forth on the signature page of this Agreement, or at
such other address as may have been specified by written
notice given in accordance with this paragraph.
(d) This Agreement shall be enforced, governed and
construed in all respects in accordance with the laws of the
State of New York, as such laws are applied by New York
courts to agreements entered into, and to be performed in,
New York by and between residents of New York, and shall be
binding upon the Investor, the Investor's heirs, estate,
legal representatives, successors and assigns and shall
inure to the benefit of the Company, its successors and
assigns.
(e) If any provision of this Agreement is invalid or
unenforceable under any applicable statue or rule of law,
then such provisions shall be deemed inoperative to the
extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any
provision hereof that may prove invalid or unenforceable
under any law shall not affect the validity or
enforceability of any other provision hereof.
(f) No delay or omission to exercise any right, power
or remedy accruing to any party to this Agreement, upon any
breach or default of another party under this Agreement,
shall impair any such right, power or remedy of such party
nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any
similar breach or default thereafter occurring; nor shall
any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or
thereafter occurring. All remedies, either under this
Agreement or by law or otherwise afforded to any party,
shall be cumulative and not alternative.
(g) This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject
matter hereof and may be amended only by a writing executed
by both parties hereto. An executed facsimile copy of the
Agreement shall be effective as an original.
(h) The Company agrees to take such actions and
execute such other documents which the Investor may
reasonably request to carry out the intent of this Agreement
and the transactions contemplated hereby.
[Balance of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first written above.
EUROGAS, INC.
By: /s/ Xxxx X. Aarleth
---------------------------------------
Xxxx X. Xxxxxx, its CEO duly authorized
ARKLEDUN DRIVE LLC
By:_________________________________
Navigator Management, Ltd. - Director
Notice Address:
---------------
Beacon Capital Management, Ltd.
Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx Xxxxx
P.O. Box 972
Road Town, Tortola, BVI
(f) 000-000-0000
Copy via fax to:
---------------
Xxxxxx X. XxXxxxx
000-000-0000
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