ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (this "Agreement") is entered into as of the
22nd day of July, 1998, by and between EUROGAS, INC., a Utah corporation
("EuroGas"), and BELMONT RESOURCES, INC., a corporation organized under the laws
of the providence of British Columbia ("Belmont"), based on the following:
Premises
A. EuroGas is a publicly-held corporation that owns an interest in
mineral deposits in Slovakia through a wholly-owned subsidiary.
B. Belmont is a publicly-held corporation traded on the Vancouver Stock
Exchange.
C. Maseva, s.r.o. ("Maseva") is a privately-held entity organized under
the laws of the Slovak Republic. Maseva was awarded the rights to the
exploration territory known as "Kralovsky Chlmec" pursuant to a decision (the
"Decision") of the Slovak Republic Ministry of Environment located in Bratislava
dated March 10, 1998, File No. 464/359/98-3.3 that gives Maseva the exclusive
right to explore in the area covered by the Decision.
D. Belmont has entered into an agreement with Maseva pursuant to which a
new company was formed in the Slovak Republic under the name of Maseva Gas,
s.r.o. ("Maseva Gas") and the exploration rights covered by the Decision have
been transferred from Maseva to Maseva Gas and Belmont now owns 90% of Maseva
Gas.
E. EuroGas wishes to acquire, and Belmont desires to sell, the right to
explore for and exploit crude oil and natural gas in the territory covered by
the Decision by the transfer of ownership of it 90% interest in Maseva Gas to
EuroGas.
Agreement
NOW, THEREFORE, based on the foregoing premises, which are incorporated
herein by this reference, and for and in consideration of the mutual covenants
and the agreements hereinafter set forth and the mutual benefit to the parties
to be derived therefrom, it is hereby agreed as follows:
Article I
Definitions
In this Agreement, the following terms shall have the meanings specified in
this Article I. Such definition shall be equally applicable to both the
singular and the plural forms. Any agreement referred to below shall mean such
agreement as amended, supplemented, or modified from time to time to the extent
permitted by the applicable provisions thereof and by this Agreement.
"Assumed Obligations" means the obligations under the contracts and
agreements which are assumed by EuroGas, all as more particularly described in
Section 2.02.
"Closing" has the meaning set forth in Section 2.04.
"Closing Date" has the meaning set forth in Section 2.04.
"Common Stock of EuroGas" means the authorized common stock of EuroGas, par
value $0.001 per share.
"Decision" means the decision of the Slovak Republic Ministry of
Environment in Bratislava dated March 10, 1998, File No. 464/359/98-3.3 granting
Maseva the exclusive right to prospect for crude oil and natural gas in the
exploration territory identified in the decision covering 849.7 square
kilometers.
"Due Diligence" means the 30 days after the date of deliver of the Belmont
Exhibits and Belmont Schedules during which time EuroGas may inspect such
Belmont Exhibits and Belmont Schedules.
"Environmental Laws" means the central government, provincial, and local
laws and regulations governing the generation, marketing, refining, recycling,
treatment, handling, use, storage, transportation, disposal, and clean up of
hazardous, radio active, reactive, flammable, infectious, toxic, or dangerous
materials, or the protection of public health or the environment, including,
without limitation, all laws and regulation governing water resources, water
management structures, and other territories protected pursuant to the Slovakian
Gazette on the Protection of Nature and the Countryside and compliance with the
regulations governing forestry land reserves, national nature reserves, and the
Ministry of Environment, including all permits and regulatory approvals required
or issued thereunder.
"Excluded Liabilities" has the meaning set forth in Section 2.03.
"Maseva" means Maseva, s.r.o., an entity organized under the laws of the
Slovak Republic located in Kosice.
"Maseva Concession" means the rights currently held by Maseva under the
Decision, including the exclusive right to prospect for crude oil and natural
gas in the territory identified in the Decision and, on the identification and
location of exploitable minerals, the pre-emptive right to determine the mining
area and exploit the minerals. The Maseva Concession will be transferred in its
entirety to Maseva Gas prior to the Closing.
"Maseva Gas" means Maseva Gas, s.r.o., an entity to be formed under the
laws of the Slovak Republic.
"Warrant" means the warrant delivered to Belmont as part of the purchase
price, which gives Belmont the right, at its election, to acquire up to
2,500,000 shares of restricted Common Stock of EuroGas, at an exercise price of
$5.00 per share, at any time prior to October 1, 2000.
"Working Interest Agreement" means the working interest agreement to be
entered into between Maseva Gas and Belmont at the time of Closing, a form of
which is attached to this Agreement as an Exhibit.
Article II
Purchase of Assets
Section 2.01 The Purchase. On the terms and conditions set forth in this
Agreement, EuroGas shall purchase from Belmont 90%of the record and equity
ownership interest in and to Maseva Gas in exchange for the delivery to Belmont
of 2,500,000 shares of restricted common stock of EuroGas and the Warrant to
purchase up to an additional 2,500,000 shares of EuroGas common stock at a
purchase price of $5.00. In addition, at the time of Closing, Belmont shall be
assigned a 22.5%working interest in the Maseva Concession; provided that,
EuroGas will bear Belmont's costs in connection with the drilling of the initial
two new xxxxx on the Maseva Concession in accordance with the terms of the
Working Interest Agreement. Within ten (10) days of the execution of this
Agreement, EuroGas shall place the shares of restricted stock of EuroGas and the
warrant into escrow with a mutually acceptable escrow agent pending Closing.
Section 2.02 Assumed Obligations. On the Closing Date, EuroGas shall
assume and agree to discharge the obligations of Belmont under the terms of the
agreements governing Maseva Gas and the Maseva Concession that are incurred or
related to any time subsequent to the Closing Date. All costs attributable to
any period of time that encompasses the time both before and after the Closing
Date shall be pro rated between EuroGas and Belmont as of the Closing Date.
Section 2.03 Excluded Liabilities. EuroGas shall not assume, be
obligated to pay, be obligated to perform, or otherwise be required to discharge
any liability or obligation of Belmont, Maseva, or Maseva Gas, direct or
indirect, known or unknown, absolute or contingent, not expressly assumed by
EuroGas, including any liability or obligation attributable to any time prior to
the Closing Date.
Section 2.04 Closing; Closing Date. Subject to the terms and conditions
of this Agreement, the consummation of the sale and purchase of Maseva Gas as
contemplated hereby (the "Closing") shall take place at the offices of Xxxxx,
Xxxxx & Xxxxxxx, L.L.C., or such other place as mutually acceptable to the
parties hereto as soon as practicable, but in any event on or before September
30, 1998. The date on which the Closing takes place shall be the "Closing
Date."
Section 2.05 Closing Events. At the Closing, Belmont shall execute,
acknowledge, and deliver (or shall cause to be executed, acknowledged, and
delivered) (i) the bills of sale, assignments, and other documents and
instruments of conveyance and transfer, all in form and substance reasonably
satisfactory to EuroGas and its counsel, necessary to vest free and clear title
in EuroGas to 90% of the equity and record ownership of Maseva Gas; (ii)
originals or copies of all of Maseva Gas' agreements, contracts, and
commitments; (iii) originals or copies of all science related to the Maseva
Concession, including surveys, reports, feasibility studies, testing reports,
seismic information, drill logs, etc.; (iv) all certificates, opinions,
schedules, agreements, resolutions, or other instruments required by this
Agreement to be so delivered prior to the Closing; (v) a representation letter
acknowledging the restricted nature of the securities delivered to Belmont as
part of the purchase price and setting forth Belmont's investment intent in form
and substance as set forth on Exhibit "C" attached hereto and incorporated
herein by this reference; and (vi) such other items as may be reasonably
requested by the parties hereto and their respective legal counsel in order to
effectuate or evidence the transactions contemplated hereby. EuroGas shall
deliver to Belmont the certificates representing 2,500,000 shares of restricted
Common Stock and the Warrant giving Belmont the right to acquire up to an
additional 2,500,000 shares of restricted common stock of EuroGas at an exercise
price of $5.00 per share at any time prior to two years subsequent to the
Closing Date.
Section 2.06 Registration of Common Stock. At the Closing, the parties
will execute and deliver a Registration Rights Agreement giving Belmont the
right to have the restricted Common Stock delivered as part of the purchase
price and the restricted Common Stock issuable on exercise of the Warrants
included in any appropriate registration statement that may be filed by EuroGas
within one year of the date of Closing.
Article III
Representations, Covenants, and Warranties of Belmont
Belmont hereby represents, covenants, and warrants to EuroGas, such
representations, covenants, and warranties to be made as of the date hereof and
at and as of the Closing Date and to survive the Closing and continue in
accordance with the terms hereof, as follows:
Section 3.01 Organization of Belmont. Belmont is a corporation duly
organized, validly existing, and in good standing under the laws of British
Columbia and has the corporate power and is duly authorized, qualified,
franchised, and licensed under all applicable laws, regulations, ordinances, and
public authorities to own its properties and assets and to carry on its business
in all material respects as it is now being conducted. There is no jurisdiction
in which it is not so qualified in which the character and location of the
assets owned by it or the nature of the business transacted by it requires
qualification, except when the failure to do so would not have a material
adverse affect on the business and properties of Belmont. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof will not,
violate any provision of Belmont's articles of incorporation or bylaws.
Section 3.02 Organization of Maseva Gas. Maseva Gas is an entity duly
organized, validly existing, and in good standing under the laws of the Slovak
Republic, with the power and duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and public
authorities to own its properties and assets, including the Maseva Concession,
and to carry on its proposed business of exploring for natural gas and crude oil
on the Maseva Concession. There is no jurisdiction in which it is not so
qualified in which the character and location of the assets owned by it or the
nature of the business transaction or proposed by it, requires qualification.
The consummation of the transactions contemplated by this Agreement in
accordance with the terms hereof will not violate any provision of Maseva Gas'
governing instruments.
Section 3.03 Approval of this Agreement. The board of directors of
Belmont has authorized the execution and delivery of this Agreement and has
approved the transactions contemplated hereby. There is no requirement that the
shareholders of Belmont approve this Agreement or the transactions contemplated
hereby. This Agreement is the legal, valid, and binding agreement of Belmont
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, or other laws effecting the enforcement of
creditor's rights generally and by general principles of equity.
Section 3.04 Capitalization of Maseva Gas. The authorized capital of
Maseva Gas is as set forth in the provided copy of the Maseva Articles of
Organization. All such issued and outstanding shares have been legally issued,
and are fully paid, and nonassessable, and not issued in violation of the rights
of any other person or entity. No shares of the authorized capital of Maseva
Gas are subject to any right held by any other person or entity to require the
issuance of additional shares or acquire the issued and outstanding shares on
the exercise or conversion of options, warrants, convertible debentures,
contract rights, or other such instruments.
Section 3.05 Ownership of Maseva Gas. Belmont hereby represents and
warrants that, as of the Closing Date, it will be the sole beneficial and record
owner of 90% of the issued and outstanding record and equity ownership of Maseva
Gas. Belmont's ownership interest in Maseva Gas will be held solely by Belmont,
free and clear of any and all liens, encumbrances, claims, or rights of any
other person or entity.
Section 3.06 Ownership of Maseva Concession. As of the Closing, Maseva
Gas will be the sole and exclusive holder of the Maseva Concession and all of
the rights granted under the Decision. No other person or entity will have any
lien, encumbrance, claim, or right with respect to the Maseva Concession.
Section 3.07 No Liabilities or Contingencies. As of the Closing, Maseva
Gas will not have and will not be liable for, any liabilities or contingencies,
whether known or unknown, except for those obligations listed on Schedule 3.06
which have accrued but which are not yet due.
Section 3.08 Material Contract Defaults. As of the Closing, Maseva Gas
will not be in default in any respect under the terms of any outstanding
contract, agreement, lease, or other commitment which is material to the
business, operations, properties, assets, or condition of Maseva Gas, and there
will be no event of default or other event which would with the notice or lapse
of time or both would constitute a default in any material respect under any
such contract, agreement, lease, or other commitment.
Section 3.09 Taxes. All tax returns, tax reports, and taxes with respect
to the formation or operation of Maseva Gas or which might be a lien or
encumbrance against Maseva Gas or its assets that is due prior to the Closing
Date will be filed on or before the Closing Date and the underlying tax
obligations paid in full.
Section 3.10 Third-Party Consents. No contract, agreement, lease, or
other commitment, written or oral, to which Belmont or Maseva Gas is, or as of
the Closing Date, will be a party, or to which any of Maseva Gas' properties or
assets are subject, require the consent of the other party in order to
consummate the transactions herein contemplated.
Section 3.11 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust, or other material contract, agreement, or instrument to which Belmont or
Maseva Gas is a party or to which any of their properties or operations are
subject.
Section 3.12 Compliance With Laws and Regulations. Belmont and Maseva
Gas have complied with all applicable statutes and regulations of any
governmental agency with respect to the Maseva Concession. The Maseva
Concession, including all of the rights under the terms of the Decision, is in
good standing and can be fully exploited by Maseva Gas. Any and all consents
required from any governmental agency to permit Maseva Gas to exploit the Maseva
Concession will have been obtained by the Closing Date.
Section 3.13 Environmental Concerns. The Maseva Concession and Maseva
Gas are in full compliance with all Environmental Laws, including the
regulations adopted under the Gazette on Geological Operations, the Slovak
Geological Bureau, the Gazette on the Protection of Nature and Countryside, the
Forestry Land Reserves, the Protection of Agricultural Land Reserves, the
Ministry of Environment, and all local rules and regulations, and are not
subject to any environmental liabilities.
Section 3.14 Brokers' Fees. Belmont has not engaged or entered into any
agreement with any broker or finder in connection with any of the transactions
contemplated by this Agreement requiring the payment of any fee or compensation.
Section 3.15 Belmont Schedules. Belmont will deliver to EuroGas within
ten (10) days of the execution of this Agreement the following disclosure
schedules that are collectively referred to as the "Belmont Schedules":
(a) A complete copy, including all exhibits, of the Decision;
(b) A complete copy, including all exhibits, of the Contract of
Mandate between Belmont and Maseva;
(c) A complete copy, including all exhibits, of the Contract to enter
into a Future Contract between Belmont and Maseva;
(d) A copy of any other agreement, contract, or commitment to which
Maseva Gas is a party or the Maseva Concession is subject to;
(e) A schedule including all geological information with respect to
the Maseva Concession, including feasibility studies, geological surveys,
reports, development plans, seismic information, analysis, test results, or
similar matters;
(f) A copy of the complete financial records of the costs associated
with obtaining the Maseva Concession, forming Maseva and Maseva Gas, and
the negotiation and execution of the agreements between Belmont and Maseva.
(g) A schedule setting forth the information required by Section
3.06.
Article IV
Representations, Covenants, and Warranties of EuroGas
Section 4.01 Organization. EuroGas is a corporation duly organized,
validly existing, and in good standing under the laws of the state of Utah and
has the corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and public
authorities to own its properties and assets and to carry on its business in all
material respects as it is now being conducted. There is no jurisdiction in
which it is not so qualified in which the character and location of the assets
owned by it or the nature of the business transacted by it requires
qualification, except when the failure to do so would not have a material
adverse affect on the business and properties of EuroGas. The execution and
delivery of this Agreement does not, and the consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof will not,
violate any provision of EuroGas' articles of incorporation or bylaws.
Section 4.02 Approval of this Agreement. The board of directors of
EuroGas has authorized the execution and delivery of this Agreement and has
approved the transactions contemplated hereby. There is no requirement that the
shareholders of EuroGas approve this Agreement or the transactions contemplated
hereby. This Agreement is the legal, valid, and binding agreement of EuroGas
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, or other laws effecting the enforcement of
creditor's rights generally and by general principles of equity.
Section 4.03 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust, or other material contract, agreement, or instrument to which EuroGas is
a party or to which any of their properties or operations are subject.
Section 4.04 EuroGas Disclosure. The information concerning EuroGas and
its business and operations set forth in its reports on Form 10-K for the year
ended December 31, 1997, and Form 10-Q for the quarter ended March 31, 1998,
does not contain any untrue statement of a material fact or omit a material fact
required to be stated therein or necessary to make the statements contained
therein not misleading.
Section 4.05 Brokers' Fees. EuroGas has not engaged or entered into any
agreement with any broker or finder in connection with any of the transactions
contemplated by this Agreement requiring the payment of any fee or compensation.
Section 4.06 EuroGas Schedules. EuroGas will deliver to Belmont within
ten (10) days of the execution of the Agreement the following disclosure
schedules which are collectively referred to as the "EuroGas Schedules":
(a) Annual report on Form 10-K for the year ended December 31, 1997;
and
(b) Quarterly report on Form 10-Q for the quarter ended March 31,
1998.
Article V
Conditions Precedent to the Obligations of EuroGas
The obligations of EuroGas to purchase the equity ownership of Maseva Gas
is subject to the satisfaction, at or before the Closing, of each of the
conditions set forth below.
Section 5.01 Performance by Belmont. Belmont shall have substantially
performed all conditions of this Agreement unless the requirement has been
waived in writing by EuroGas.
Section 5.02 Formation of Maseva Gas. Maseva Gas shall be duly and
lawfully formed and in existence as a legally recognized entity in the Slovak
Republic.
Section 5.03 Transfer of Decision. The Maseva Concession, including all
rights under the Decision, shall have been transferred to Maseva Gas and Maseva
and Maseva Gas shall have obtained any necessary consent of the Slovak Republic
Ministry of Environment as to such transfer and its ownership by EuroGas.
Section 5.04 Payment of Existing Obligations. Belmont shall have
provided the necessary funding to Maseva or Maseva Gas to permit the payment of
all obligations which are due prior to the Closing Date, including the
obligation of Belmont to reimburse Maseva for the initial work and
organizational costs in investigating and obtaining the Maseva Concession.
Section 5.05 Due Diligence Review. EuroGas shall have favorably
completed its due diligence of the Maseva Concession and the ownership of all
rights with respect thereto by Maseva Gas.
Section 5.06 No Material Adverse Change. There shall not have been any
material change to Maseva Gas or the Maseva Concession prior to the Closing
Date.
Section 5.07 Absence of Litigation. No action, suit, or proceeding
before any court or any governmental body or authority pertaining to the
consummation of the transactions contemplated by this Agreement shall have been
instituted or threatened on or before the Closing Date.
Section 5.08 Closing Date Pro Rations. EuroGas and Belmont shall pro
rate as of the Closing Date, all charges and items of expense with respect to
the Maseva Concession with Belmont bearing the proportionate expense
attributable to the period prior to the Closing Date in accordance
with the terms of this Agreement and EuroGas bearing the proportion expense
attributable to the period subsequent to the Closing Date.
Section 5.09 Third-Party Consents. Belmont shall have obtained the
consents of all third-parties whose consent is required to consummate the
transactions contemplated by this Agreement, including any consents reasonably
requested by EuroGas.
Section 5.10 Other Agreements. The execution of a Registration Rights
Agreement, Working Interest Agreement, and Warrant in the form substantially
similar to the drafts attached to this Agreement.
Section 5.11 Agreement with Maseva. The obtaining of any agreements with
Maseva (the owner of the other 10% of Maseva Gas) as Belmont and EuroGas deem
mutually advisable.
Article VI
Conditions Precedent to the Obligations of Belmont
The obligation of Belmont to sell its interest in Maseva Gas is subject to
EuroGas' satisfaction, at the time of Closing, of the conditions set out below,
except for any condition which has been waived in writing by Belmont at or prior
to the Closing.
Section 6.01 Performance by EuroGas. EuroGas shall have substantially
performed all the conditions of this Agreement, unless the requirement has been
waived in writing by Belmont.
Section 6.02 Corporate Approval. The board of directors of EuroGas shall
have approved the transactions described in this Agreement and resolutions
setting forth those approvals shall have been certified to Belmont by an officer
of EuroGas.
Section 6.03 Other Agreements. The execution of a Registration Rights
Agreement, Working Interest Agreement, and Warrant in the form substantially
similar to the drafts attached to this Agreement.
Section 6.04 Agreement with Maseva. The obtaining of any agreements with
Maseva (the owner of the other 10% of Maseva Gas) as Belmont and EuroGas deem
mutually advisable.
Article VII
Survival of Representations and Warranties
All representations and warranties made in Articles IV and V shall be
continuing and shall survive the Closing, but shall expire 24 months after the
Closing Date; provided, however, that if a claim for indemnification has been
asserted pursuant to Article VII prior to or as of the expiration date of such
24-month period, such representations and warranties shall remain in full force
and effect until full and complete resolution of such claim. Notwithstanding
the foregoing, however, the time for making a claim based upon such
representation or warranty shall expire 24 months after the Closing Date.
Article VIII
Indemnification
Section 8.01 By EuroGas and Belmont. EuroGas, on the one hand, and
Belmont on the other hand, each hereby agrees to indemnify and hold harmless the
other party against all claims, damages, losses, liabilities, costs, and
expenses (including settlement costs and any legal, accounting, or other
expenses for investigating or defending any actions or threatened actions)
reasonably incurred by the indemnified party in connection with each and all of
the following:
(a) any breach by the indemnifying party of any representation or
warranty in this Agreement;
(b) any breach of any covenant, agreement, or obligation of the
indemnifying party contained in this Agreement or any other agreement,
instrument, or document contemplated by this Agreement; and
(c) any misrepresentation contained in any statement, exhibit,
certificate, or schedule furnished by the indemnifying party pursuant to
this Agreement or in connection with the transactions contemplated by this
Agreement.
Section 8.02 By Belmont. Belmont agrees to indemnify and hold harmless
EuroGas from any and all claims, damages, liabilities, costs, and expenses
(including settlement costs and any legal, accounting, or other expenses for
investigating or defending any actions or threatened actions) reasonably
incurred by the indemnified party in connection with each and all of the
following:
(a) any claims against, or liabilities or obligations of, Maseva Gas,
the Maseva concession, or the business or assets of Maseva Gas related to
any period of time prior to the Closing Date.
(b) any and all claims, damages, losses, liabilities, costs, and
expenses including settlement costs and any legal, accounting, or other
expenses for investigating or defending any actions or threatened actions
reasonably incurred by EuroGas in connection with any claim relating to
Maseva Gas' business or operations prior to the Closing Date.
Section 8.03 Claims for Indemnification. Whenever any claim shall arise
for indemnification hereunder, the party seeking indemnification (the
"Indemnified Party"), shall promptly notify, in writing, the party from whom
indemnification is sought (the "Indemnifying Party") of the claim and, when
known, the facts constituting the basis for such claim. In the event of any
such claim for indemnification hereunder resulting from or in connection with
any claim or legal proceedings by any party, the notice to the Indemnifying
Party shall specify, if known, the amount or an estimate of the amount of the
liability arising therefrom. The Indemnified Party shall not settle or
compromise any claim by a third party for which it is entitled to
indemnification hereunder without the prior written consent of the Indemnifying
Party, which shall not be unreasonably withheld, unless suit shall have been
instituted against it and the Indemnifying Party shall not have taken control of
such suit after notification thereof as provided in section 8.04 hereof.
Section 8.04 Defense by Indemnifying Party. In connection with any claim
giving rise to indemnity hereunder resulting from or arising out of any claim or
legal proceeding by a person who is not a party to this Agreement, the
Indemnifying Party, at its sole cost and expense may, upon written notice to the
Indemnified Party, assume the defense of any such claim or legal proceeding if
it acknowledges to the Indemnified Party in writing its obligations to indemnify
the Indemnified Party with respect to all elements of such claim. The
Indemnified Party shall be entitled to participate (but not control) the defense
of any such action, with its counsel and at its own expense. If the
Indemnifying Party does not assume the defense of any such claim or litigation
resulting therefrom within 30 days after the date such claim is made:
(a) the Indemnified Party may defend against such claim or litigation
in such manner as it may deem appropriate, including, but not limited to,
settling such claim or litigation, after giving notice of the same to the
Indemnifying Party, on such terms as the Indemnified Party may deem
appropriate; and
(b) the Indemnifying Party shall be entitled to participate in (but
not control) the defense of such action, with its counsel and at its own
expense. If the Indemnifying Party thereafter seeks to question the manner
in which the Indemnified Party defended such third party claim or the
amount or nature of any such settlement, the Indemnifying Party shall have
the burden to prove by a preponderance of the evidence that the
Indemnified Party did not defend or settle such third party claim in a
reasonably prudent manner.
Article IX
Specific Performance
The parties hereto agree the failure of any party to perform any obligation
or duty which each has agreed to perform shall cause irreparable harm to the
parties willing to perform the obligations and duties herein, which harm cannot
be adequately compensated for by money damages. It is further agreed by the
parties hereto an order of specific performance against a party in default under
the terms of this Agreement would be equitable and would not work a hardship on
the defaulting party. Accordingly, in the event of default by any party hereto,
the non-defaulting party, in addition to whatever other remedies are available
at law or in equity, shall have the right to compel specific performance by the
defaulting party of any obligation or duty herein.
Article X
Miscellaneous Provisions
Section 10.01 Costs. EuroGas and Belmont shall each pay all of their own
costs and expenses incurred or to be incurred by each in negotiating and
preparing this Agreement and in closing and carrying out the transactions
contemplated by this Agreement.
Section 10.02 Notices. Any notice, demand, request, or other
communication under this Agreement shall be in writing and shall be deemed to
have been given on the date of service if personally served or by facsimile
transmission (if receipt is confirmed by the facsimile operator of the
recipient), or delivered by overnight courier service or on the third day after
mailing if mailed by certified mail, return receipt requested, addressed as
follows:
If to EuroGas, to: Xxxx Xxxxxxxxxxxx, Vice-President
EuroGas, Inc.
000 Xxxx 0000 Xxxxx, #000X
Xxxxxxx, Xxxx 00000
Fax: (000) 000-0000
Confirmation: (000) 000-0000
With copies to: Xxxxxx X. Xxxxx, Esq.
Xxxxx, Xxxxx & Xxxxxxx, L.L.C.
00 Xxxx Xxxxxxxx, Xxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Fax: (000) 000-0000
Confirmation: (000) 000-0000
If to Belmont, to: Xxxxxxx Xxxxxxx
Belmont Resources, Inc.
Suite 1180 - 000 Xxxxxxx Xx.
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Fax: (000) 000-0000
Confirmation: (000) 000-0000
With copies to: Xxxxx Anfield, Esq.
Anfield, Xxxxx, Xxxxxxx & Xxxxx
16th Floor - Stock Exchange Tower
000 Xxxxxxxxx Xxxxxx
X.X. Xxx 00000 - Pacific Centre
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxx X0X 0X0
Fax: (000) 000-0000
Confirmation: (000) 000-0000
or such other addresses and facsimile numbers as shall be furnished in writing
by any party in the manner for giving notices hereunder, and any such notice,
demand, request, or other communication shall be deemed to have been given as of
the date so delivered or sent by facsimile transmission (if receipt is confirmed
by the facsimile operator of the recipient), three days after the date so
mailed, or one day after the date so sent by overnight delivery.
Section 10.03 Governing Law. This Agreement shall be governed by,
enforced and construed under and in accordance with the laws of the United
States of America and, with respect to matters of state law, with the laws of
the state of Utah. Venue for all actions regarding this Agreement shall be in
Salt Lake County, Utah. The parties hereby submit to the personal jurisdiction
of such court for the purpose of resolving any dispute arising under this
Agreement.
Section 10.04 Attorneys' Fees. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall reimburse the
nonbreaching party or parties for all costs, including reasonable attorneys'
fees, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
Section 10.05 Schedules and Exhibits; Knowledge. Whenever in any section
of this Agreement reference is made to information set forth in the exhibits or
the Belmont Schedules, such reference is to information specifically set forth
in such exhibits or schedules and clearly marked to identify the section of this
Agreement to which the information relates. Whenever any representation is made
to the "knowledge" of any party, it shall be deemed to be a representation that
no officer or director of such party, after reasonable investigation, has any
knowledge of such matters.
Section 10.06 Entire Agreement. This Agreement, together with the
documents to be delivered pursuant hereto, represent the entire agreement
between the parties relating to the subject matter hereof. There are no other
courses of dealing, understanding, agreements, representations, or warranties,
written or oral, except as set forth herein.
Section 10.07 Survival; Termination. The representations, warranties, and
covenants of the respective parties shall survive the Closing.
Section 10.08 Form of Execution; Counterparts. A valid and binding
signature hereto or any notice or demand hereunder may be in the form of a
manual execution or a true copy made by photographic, xerographic, or other
electronic process that provides similar copy accuracy of a document that has
been executed. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original and all of which taken together shall be but a
single instrument.
Section 10.09 Amendment or Waiver. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred herein,
at law, or in equity, and may be enforced concurrently herewith, and no waiver
by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance thereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
Section 10.10 Waiver of Jury Trial. Each party hereby (a) knowingly,
voluntarily, intentionally, and irrevocably waives, to the maximum extent not
prohibited by law, any right it may have to a trial by jury in respect of any
litigation based hereon, or directly or indirectly at any time arising out of,
under, or in connection with this Agreement or any transaction contemplated
hereby or associated herewith; and (b) acknowledges that it has been induced to
enter into this Agreement and the transactions contemplated hereby by, among
other things, the mutual waivers and certifications contained in this section.
DATED as of the date first above written.
EuroGas:
EUROGAS, INC.
By /s/ Xxxx Xxxxxxxxxxxx
Belmont:
BELMONT RESOURCES, INC.
By /s/ Xxxxxxx Xxxxxxx
