EXHIBIT 10.32
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement (this
"Agreement"), dated as of October 2, 2000, is made and
entered into by and between EUROGAS, INC. a Utah corporation
(the "Company"), and ARKLEDUN DRIVE LLC, (the "Purchaser").
Thomson Kernaghan & Company, Ltd. is executing this
Agreement solely for the purpose of acting as escrow agent
pursuant to the terms of this Agreement.
B A C K G R O U N D
A. The Company desires to issue and sell to
Purchaser shares of its common stock, $.001 par value per
share (the "Shares"), in accordance with and subject to the
terms and conditions set forth in this Agreement.
B. Subject to the terms and conditions hereof
and in reliance upon the representations, warranties and
agreements contained herein, Purchaser desires to purchase
the Shares from the Company.
A G R E E M E N T
In consideration of the above premises and the
representations, warranties, covenants and agreements
contained in this Agreement, and for other good and valuable
consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
1. PURCHASE TERMS. Upon closing the Company shall deliver
to Thomson Kernaghan & Company, Ltd. a stock certificate in
the amount of 7,000,000 Shares, registered in the name of
Thomson Kernaghan & Company, Ltd. for the benefit of
Arkledun Drive LLC.
(a) The Purchaser hereby agrees to purchase, through
an escrow account set up at Thomson Kernaghan & Company,
Ltd., 5,500,000 Shares of free trading, unrestricted common
stock of the Company for $2,165,000 (the "Purchase Price").
Xxxxxx X. XxXxxxx, Esq. shall notify the Purchaser when he
has received the signed Agreement (and Exhibits thereto),
from the Company, at which time the Purchaser shall wire the
Purchase Price to Xxxxxx X. XxXxxxx, Esq. The Purchaser
shall pay the Purchase Price for the Shares by delivering
immediately available good funds in United States Dollars to
Xxxxxx X. XxXxxxx, Esq. per the wire instructions set forth
in this Agreement. Once Thomson Kernaghan & Company, Ltd.
(the "Escrow Agent") is in receipt of the Shares, Xxxxxx X.
XxXxxxx, Esq. shall wire the funds, less a $15,000 escrow
fee, per the written instructions of the Company. The
closing shall be deemed to have occurred on the date the
Purchase Price is wired to the Company per its written
instructions (the "Closing Date").
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(b) Neither the Escrow Agent nor Xxxxxx X. XxXxxxx,
Esq. shall be liable for any action taken or omitted by them
in good faith and in no event shall they be liable or
responsible except for their own gross negligence or willful
misconduct. They have made no representations or warranties
in connection with this transaction and have not been
involved in the negotiation of the terms of this
transaction. The Company and Purchaser each agree to
indemnify and hold harmless the Escrow Agent and Xxxxxx X.
XxXxxxx, Esq. from and with respect to any suits, claims,
actions or liabilities arising in any way out of this
transaction including the obligation to defend any legal
action brought which in any way arises out of or is related
to this Agreement.
(c) Payment must be made by wire transfer as provided
below. Immediately available funds should be sent via wire
transfer to the trustee account stated below and the
executed Agreement, with Exhibits, should be forwarded to
Xxxxxx X. XxXxxxx, Esq. The Purchase Price will be
deposited into a non-interest bearing trustee account of
Xxxxxx X. XxXxxxx, Esq., at First Union Bank of Connecticut,
Stamford, Connecticut. In the event of the rejection of
this Agreement by the Company, all funds will be returned
without interest. The wire instructions are as follows:
First Union Bank of Connecticut
Executive Xxxxxx
000 Xxxx Xxxxxx, X. X. Xxx 000
Xxxxxxxx, XX 00000-0000
ABA #: 000000000
Swift #: XXXXXX00
Account #: To be provided
Xxxx.Xxxx: Xxxxxx X. XxXxxxx, Esq. Trustee Account
2. PURCHASER REPRESENTATIONS. The Purchaser hereby
represents and warrants as follows:
(a) The Purchaser has been furnished with, and has
carefully read the applicable form of Registration Rights
Agreement annexed hereto as Exhibit A (the "Registration
Rights Agreement"), and is familiar with and understands the
terms of this Agreement. With respect to tax and other
economic considerations involved in this investment, the
Purchaser is not relying on the Company. The Purchaser has
carefully considered and has, to the extent the Purchaser
believes such discussion necessary, discussed with the
Purchaser's professional legal, tax, accounting and
financial advisors the suitability of an investment in the
Company, by purchasing the Shares, for the Purchaser's
particular tax and financial situation and has determined
that the investment being made by the Purchaser is a
suitable investment for the Purchaser.
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(b) The Purchaser acknowledges that all documents,
records, and books pertaining to this investment which the
Purchaser has requested includes Form 10-K (and all
amendments thereto, if any) for the fiscal year ended
December 31, 1999, and Forms 10-Q (and all amendments
thereto, if any) for the two succeeding quarters and Form S-
3 filed on June 28, 2000,(and all amendments thereto, if
any) (the "Disclosure Documents") which have been made
available for inspection by the Purchaser or the Purchaser
has had access to the Disclosure Documents.
(c) If this Agreement is executed and delivered on
behalf of a corporation, (i) such corporation has the full
legal right and power and all authority and approval
required (a) to execute and deliver, or authorize execution
and delivery of, this Agreement and all other instruments
(including, without limitation, the Registration Rights
Agreement) executed and delivered by or on behalf of such
corporation in connection with the purchase of the Shares
and (b) to purchase and hold the Shares; and (ii) the
signature of the party signing on behalf of such corporation
is binding upon such corporation.
(d) The Purchaser shall indemnify and hold harmless
the Company and each stockholder, executive, employee,
representative, affiliate, officer, director, agent
(including Counsel) or control person of the Company, who is
or may be a party or is or may be threatened to be made a
party to any threatened, pending or contemplated action,
suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of or arising from any actual or
alleged misrepresentation or misstatement of facts or
omission to represent or state facts made or alleged to have
been made by the Purchaser to the Company or omitted or
alleged to have been omitted by the Purchaser, concerning
the Purchaser or the Purchaser's subscription for and
purchase of the Shares or the Purchaser's authority to
invest or financial position in connection with this
transaction, including, without limitation, any such
misrepresentation, misstatement or omission contained in
this Agreement or any other document submitted by the
Purchaser, against losses, liabilities and expenses for
which the Company, or any stockholder, executive, employee,
representative, affiliate, officer, director, agent
(including Counsel) or control person of the Company has not
otherwise been reimbursed (including attorneys' fees and
disbursements, judgments, fines and amounts paid in
settlement) actually and reasonably incurred by the Company,
or such officer, director stockholder, executive, employee,
agent (including Counsel), representative, affiliate or
control person in connection with such action, suit or
proceeding.
(e) The Purchaser or the Purchaser's representatives,
as the case may be, has such knowledge and experience in
financial, tax and business matters so as to enable the
Purchaser to utilize the information made available to the
Purchaser in connection with this transaction to evaluate
the merits and risks of an investment in the Shares and to
make an informed investment decision with respect thereto.
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(f) The Purchaser is (i) an "accredited investor" as
that term is defined in Rule 501 of the General Rules and
Regulations under Securities Act of 1933, as amended, (the
"1933 Act") by reason of Rule 501(a), and (ii) experienced
in making investments of the kind described in this
Agreement, (iii) able, by reason of the business and
financial experience of its officers (if an entity) and
professional advisors (who are not affiliated with or
compensated in any way by the Company or any of its
affiliates), to protect its own interests in connection with
the transactions described in this Agreement, and the
related documents, and (iv) able to afford the entire loss
of its investment in this transaction.
3. COMPANY REPRESENTATIONS. The Company hereby represents
and warrants as follows:
(a) Concerning the Securities. The issuance, sale
and delivery of the Shares have been duly authorized by all
required corporate action on the part of the Company, and
when issued, sold and delivered in accordance with the terms
hereof and thereof for the consideration expressed herein
and therein, will be duly and validly issued and enforceable
in accordance with their terms, subject to the laws of
bankruptcy and creditors' rights generally.
(b) Authority to Enter Agreement. This Agreement has
been duly authorized, validly executed and delivered on
behalf of the Company and is a valid and binding agreement
in accordance with its terms, subject to general principles
of equity and to bankruptcy or other laws affecting the
enforcement of creditors' rights generally.
(c) Non-contravention. The execution and delivery of
this Agreement and the consummation of the issuance of the
Shares, and the transactions contemplated by this Agreement
do not and will not conflict with or result in a breach by
The Company of any of the terms or provisions of, or
constitute a default under, the articles of incorporation or
by-laws of the Company, or any indenture, mortgage, deed of
trust, or other material agreement or instrument to which
the Company is a party or by which it or any of its
properties or assets are bound, or any existing applicable
law, rule, or regulation of the United States or any State
thereof or any applicable decree, judgment, or order of any
Federal or State court, Federal or State regulatory body,
administrative agency or other United States governmental
body having jurisdiction over the Company or any of its
properties or assets.
(d) Company Compliance. The Company represents and
warrants that the Company and its subsidiaries are
currently: (i) in full compliance, to the extent
applicable, with all reporting obligations under either
Section 13(a) or 15(d) of the Securities Exchange Act of
1934; (ii) not in violation of any term or provision of its
Certificate of Incorporation or by-laws; (iii) not in
default in the performance or observance of any obligation,
agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any
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mortgage, deed of trust, indenture or other instrument or
agreement to which they are a party, either singly or
jointly, by which it or any of its property is bound or
subject. Furthermore, the Company is not aware of any other
facts, which it has not disclosed which could have a
material adverse effect on the business, condition,
(financial or otherwise), operations, earnings, performance,
properties or prospects of the Company and its subsidiaries
taken as a whole, except for general economic conditions, or
oil and gas industry conditions as a whole, that may differ
from time to time.
(e) Pending or Threatened Litigation. Except as
otherwise disclosed in Exhibit B, there is (i) no action,
suit or proceeding before or by any court, arbitrator or
governmental body now pending or, to the "knowledge" (as
defined below) of the Company, threatened or contemplated to
which the Company or any of its subsidiaries is or may be a
party or to which the business or property of the Company or
any of its subsidiaries is or may be bound or subject, (ii)
to the knowledge of the Company, no law, statute, rule,
regulation, order or ordinance that has been enacted,
adopted or issued by any Governmental Body or has been
proposed by any Governmental Body that will adversely
affecting the Company or any of its subsidiaries, (iii) no
injunction, restraining order or order of any nature by a
federal, state or foreign court or Governmental Body of
competent jurisdiction to which the Company or any of its
subsidiaries is subject that, in the case of clauses (i),
(ii) and (iii) above, (x) is reasonably likely, singly or in
the aggregate, to result in a material adverse effect on the
business, condition, (financial or otherwise), operations,
earnings, performance, properties or prospects of the
Company, and its subsidiaries taken as a whole or (y) would
interfere with or adversely affect the issuance of the
Shares or would be reasonably likely to render this
Agreement or the Shares, or any portion thereof, invalid or
unenforceable. For purposes of this Agreement the term
"knowledge" shall mean the actual knowledge of the CEO and
CFO of the Company.
(f) Issuance of the Shares. No action has been
taken and no law, statute, rule, regulation, order or
ordinance has been enacted, adopted or issued by any
Governmental Body that prevents the issuance of the Shares;
no injunction, restraining order or order of any nature by a
federal or state court of competent jurisdiction has been
issued that prevents the issuance of the Shares in any
jurisdiction; and no action, suit or proceeding is pending
against or, to the best knowledge of the Company, threatened
against or affecting, the Company, any of its subsidiaries
or, to the best knowledge of the Company, before any court
or arbitrator or any Governmental Body that, if adversely
determined, would prohibit, materially interfere with or
adversely affect the issuance or marketability of the Shares
or render the Agreement or the Shares, or any portion
thereof, invalid or unenforceable.
(g) The Company shall indemnify and hold harmless the
Purchaser and each stockholder, executive, employee,
representative, affiliate, officer, director or control
person of the Purchaser, who is or may be a party or is or
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may be threatened to be made a party to any threatened,
pending or contemplated action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason
of or arising from any actual or alleged material
misrepresentation or material misstatement of facts or
material omission to represent or state facts made or
alleged to have been made by the Company to the Purchaser or
omitted or alleged to have been omitted by the Company,
concerning the Purchaser or the Purchaser's subscription for
or financial position in connection with this transaction,
including, without limitation, any such material
misrepresentation, material misstatement or material
omission contained in this Agreement or any other document
submitted by the Company, against losses, liabilities and
expenses for which the Purchaser, or any stockholder,
executive, employee, representative, affiliate, officer,
director or control person of the Purchaser has not
otherwise been reimbursed (including attorneys' fees and
disbursements, judgments, fines and amounts paid in
settlement approved by the Company which approvals shall not
be unreasonably withheld) actually and reasonably incurred
by the Purchaser, or such officer, director, stockholder,
executive, employee, representative, affiliate or control
person in connection with such action, suit or proceeding.
(h) No Change. Other than filings required by the
Blue Sky or federal securities law and/or NASDAQ Rules and
Regulations, no consent, approval or authorization of or
designation, declaration or filing with any governmental or
other regulatory authority on the part of the Company is
required in connection with the valid execution, delivery
and performance of this Agreement. Any required
qualification or notification under applicable federal
securities laws and state Blue Sky laws of the offer, sale
and issuance of the Shares, has been obtained on or before
the date hereof or will have been obtained within the
allowable period thereafter, and a copy thereof will be
forwarded to counsel for the Purchaser.
(i) True Statements. Neither this Agreement nor any
of the "Disclosure Documents", as hereinafter defined,
contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the
statements contained herein or therein not misleading in the
light of the circumstances under which such statements are
made. There exists no fact or circumstances which, to the
knowledge of the Company, materially and adversely affects
the business, properties or assets, or conditions, financial
or otherwise, of the Company, which has not been set forth
in this Agreement or disclosed in such documents.
(j) Current Authorized Shares. As of September 29,
2000, there were 325,000,000 authorized shares of Common
Stock of which approximately 106,135,126 shares were issued
and outstanding.
(k) Disclosure Documents. The term "Disclosure
Documents" as used in this Agreement shall mean all the
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documents (other than preliminary materials) that the
Company has been required to file with the U.S. Securities
and Exchange Commission ("SEC") from December 31, 1999, to
the date hereof. As of their respective dates, and/or dates
of amended filings with respect thereto, if any, none of the
Disclosure Documents contained any untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading, and no material event
has occurred since the Company's filing on Form 10-K for the
year ended December 31, 1999, which could make any of the
disclosures contained therein (as subsequently amended
and/or restated) misleading. The financial statements of
the Company included in the Disclosure Documents have been
prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto
or, in the case of unaudited financial statements, only to
normal recurring year-end audit adjustments) and fairly
represent in all material respects the consolidated
financial position of the Company and its consolidated
subsidiaries as at the dates thereof and the consolidated
results of their operations and changes in financial
position for the periods then ended.
(l) Information Supplied. The Disclosure Documents
supplied by the Company pursuant to this Agreement do not
contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements, in
the light of the circumstances in which they were made, not
misleading. There exists no fact or circumstances which, to
the knowledge of the Company, materially and adversely
affects the business, properties, assets, or conditions,
financial or otherwise, of the Company, which has not been
set forth in this Agreement or disclosed in such documents.
(m) Non-contravention. The execution and delivery of
this Agreement by the Company, the issuance of the Shares,
and the consummation by the Company of the other
transactions contemplated by this Agreement, do not and will
not conflict with or result in a breach by the Company of
any of the terms or provisions of, or constitute a default
under, the (i) certificate of incorporation or by-laws of
the Company, (ii) any indenture, mortgage, deed of trust, or
other material agreement or instrument to which the Company
is a party or by which it or any of its properties or assets
are bound, (iii) any material existing applicable law, rule,
or regulation or any applicable decree, judgment, or (iv)
order of any court, United States federal or state
regulatory body, administrative agency, or other
governmental body having jurisdiction over the Company or
any of its properties or assets, except such conflict,
breach or default which would not have a material adverse
effect on the transactions contemplated herein.
(n) No Default. Except as may be set forth in the
Company's report on form 10-K for the fiscal year ending
December 31, 1999, the Company is not in default in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture,
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mortgage, deed of trust or other material instrument or
agreement to which it is a party or by which it or its
property is bound, and neither the execution of, nor the
delivery by the Company of, this Agreement will conflict
with or result in the breach or violation of any of the
terms or provisions of, or constitute a default or result in
the creation or imposition of any lien or charge on any
assets or properties of the Company under, (i) any material
indenture, mortgage, deed of trust or other material
agreement applicable to the Company or instrument to which
the Company is a party or by which it is bound, (ii) any
statute applicable to the Company or its property, (iii) the
Certificate of Incorporation or By-Laws of the Company, (iv)
any decree , judgment, order, rule or regulation of any
court or governmental agency or body having jurisdiction
over the Company or its properties, or (v) the Company's
listing agreement, if any, for its Common Stock.
4. ISSUANCE OF SHARES.
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(a) Opinion Letter. It shall be the Company's
responsibility to take all necessary actions and to bear all
such costs to issue the Shares as provided herein, including
the responsibility and cost for delivery of an opinion
letter to the transfer agent, if so required.
(b) The Shares have been registered by the Company
pursuant to a Form S-3 registration statement. In the event
the 5,500,000 Shares have been sold by Purchaser, and
Purchaser does not realize the amount of $2,489,750, after
the deduction of customary broker's fees thus creating a
fees,Shortfall (so called herein), the Company shall at its
option either (i) pay the shortfallShortfall in cash within
five (5) calendar days of the Company's receipt of written
facsimile notice from the Purchaser or (ii) agree that the
balance of the 1,500,000 Shares remaining in escrow may be
sold by Purchaser, but only to the point of making up the
shortfall,Shortfall, and any Shares remaining from the
1,500,000 balance shall promptly be returned by the Escrow
Agent to the Company. In the event all 7,000,000 Shares are
sold but the net proceeds from their sale are insufficient
to net the Purchaser $2,489,750, the Company at its sole
option shall either issue to Purchaser within ten (10)
calendar days of the Company's receipt of written facsimile
notice from the Purchaser twice the number of shares of
Common Stock (the "Additional Shares") that will make up
this or any additional shortfallthe Shortfall or pay the
Purchaser the shortfallShortfall in cash within five (5)
calendar days of the Company's receipt of written facsimile
notice from the Purchaser. Once Purchaser has sold that
number of Additional Shares to realize thebalance of
$2,489,750, after the deduction of customary broker's
fees,Shortfall, the Escrow Agent shall promptly return to
the Company any balance of the Additional Shares then
remaining. Likewise, if the sale of the Additional Shares
is still insufficient for the Purchaser to realize the net
amount of $2,489,750,Shortfall, the Company will continue to
issue the Purchaser shares of its Common Stock so that the
Purchaser can realize the net amount of $2,489,750 or pay
the Company the then existing shortfallShortfall in cash
within five (5) business days of the Company's receipt of
written facsimile notice from the Purchaser. In the event
the Company is required to issue the Purchaser more than the
initial 7,000,000 Shares, and the Company is unable to issue
free-trading unrestricted shares of Common Stock, the
Company shall issue the Purchaser restricted legended Common
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Stock with demand registration rights as set forth in the
accompanying Registration Rights Agreement.
If at anytime prior to the Purchaser realizing the net
amount of $2,489,750, the closing bid price of the Company's
Common Stock falls below a price whereby the number of
remaining Shares multiplied by the then current closing bid
price would be less than 125% of the amount needed to net
the Purchaser $2,489,750, then in such event the Purchaser
may exercise its demand registration rights for the issuance
and registration of the Additional Shares.
(c) The Purchaser agrees that it will use its
reasonable best efforts to sell less than all 5,500,000
Shares to net the Purchaser $2,489,750. In the event that
on October 1, 2001, Thomson Kernaghan & Co., Ltd. still has
Shares or Additional Shares in its escrow account, the
Company in its sole discretion, may redeem the Shares
remaining in escrow for that amount that would result in
Purchaser realizing the net amount of $2,489,750, less that
amount Purchaser has already received from the sale of the
Shares or Additional Shares. The Purchaser agrees to use
its reasonable best efforts to promptly sell the Shares and
Additional Shares, if necessary, but not in a manner to be
unduly disruptive to the market for the Company's Common
Stock.
(d) The Company shall at all times reserve and have
available all Common Stock necessary for registration of the
Additional Shares and any other shares of Common Stock that
the Company may be required to issue so that the Purchaser
can net the sum of $2,489,750. If, at any time the Company
does not have sufficient authorized but unissued shares of
Common Stock available for registration ("Default", the date
of such default being referred to herein as the "Default
Date"), the Company shall issue to the Purchaser all of the
shares of Common Stock which are available. The Company
shall provide notice of such Default ("Notice of Default")
to the Purchaser, within three (3) calendar days of such
default (with the original delivered by overnight or two
day courier).
If the Company does not call a meeting of shareholders
within ten (10) calendar days of the Notice of Default for
the purpose of amending the Articles of Incorporation to
increase the number of authorized shares of Common Stock
then the Company agrees to pay to the Purchaser payments for
a Default ("Default Payments") in the amount of (N/365) x
(.24) x the closing bid price of the Company's Common Stock
on the date of this Agreement oftimes the outstanding Shares
held by the Purchaser where N = the number of days from the
Default Date to the date (the "Authorization Date") that the
Company authorizes a sufficient number of shares of Common
Stock to effect of all remaining Shares. The Company shall
send notice ("Authorization Notice") to the Purchaser that
additional shares of Common Stock have been authorized, the
Authorization Date and the amount of Purchaser's accrued
Default Payments. The accrued Default shall be paid in cash
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which payments shall be made to such Purchaser of
outstanding Shares by the fifth day of the following
calendar month following registration of all the Shares.
6. DELIVERY INSTRUCTIONS.
---------------------
Prior to or on the Closing Date the Company shall
deliver to Xxxxxx X. XxXxxxx, Esq. this signed Agreement and
a signed Registration Rights Agreement in the form attached
hereto as Exhibit A. Also, prior to or on the Closing Date
the Company shall deliver to Xxxxxx X. XxXxxxx, Esq. an
Exhibit B listing any pending or threatened litigation and
an opinion letter signed by counsel for the Company in the
form attached hereto as Exhibit C.
7. UNDERSTANDINGS.
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The Purchaser understands, acknowledges and agrees with
the Company as follows:
(a) This Subscription may be rejected, in whole or in
part, by the Company in its sole and absolute discretion at
any time before the Closing Date unless the Company has
given notice of acceptance by signing this Agreement.
(b) No U.S. federal or state agency or any agency of
any other jurisdiction has made any finding or determination
as to the fairness of the terms of the Offering for
investment nor any recommendation or endorsement of the
Shares.
(c) The representations, warranties and agreements of
the Purchaser and the Company contained herein and in the
Disclosure Documents shall be true and correct in all
material respects on and as of the date of the sale of the
Shares, as if made on and as of such date and shall survive
the execution and delivery of this Agreement and the
purchase of the Shares.
8. Litigation.
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(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 Purchaser 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 agree 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
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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 Purchaser 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 Purchaser or the Company. The
Purchaser 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.
9. CONDITION SUBSEQUENT.
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The Purchaser and Company agree that as a condition
subsequent to this financing they will enter into an
agreement for an equity credit line financing of $20,000,000
to $25,000,000 on mutually agreeable terms but with a
discount of not more than fifteen percent (15%).
10. MISCELLANEOUS.
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(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 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.
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(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 Purchaser, the Purchaser'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, together with Exhibits A, B, and C
attached hereto and made a part hereof, constitute 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 Purchaser 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.
ESCROW AGENT EUROGAS, INC.
THOMSON KERNAGHAN
& COMPANY, LTD.
By:_______________________ 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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