OPTION AGREEMENT REGARDING
NEGOR RR CEMENT CORPORATION PROJECT
THIS OPTION AGREEMENT REGARDING NEGOR RR CEMENT CORPORATION PROJECT
("Agreement") is made and entered into this 16th day of July, 1998, by and
between Nevada Utah Gold Inc., a Nevada corporation ("Company"), and Negor RR
Cement Corporation, a Philippine corporation ("Negor").
RECITALS
A. The Company and Negor, and each of them, desire that upon the occurrence
of certain events, which events will be specified later in this Agreement, that
they make certain of their resources available for the formation and operation
of (i) a mining company ("Mining Company") and (ii) a cement manufacturing
company ("Manufacturing Company"), on the terms and subject to the conditions
specified in this Agreement.
B. The exploitation and mining of the claims which will be assigned to the
Mining Company pursuant to the provisions of this Agreement and the
manufacturing of cement by the Manufacturing Company, for convenience, shall be
referred to in this Agreement as the "Project".
C. The Company and Negor, and each of them, desire that Negor contribute to
the Mining Company, at such time as the Mining Company is formed, all of the
Acquired Claims (as that term is defined by the provisions of Section 1.1 of
this Agreement).
D. The Company and Negor, and each of them, desire that the Company provide
the funds necessary to (i) cause the (a) Mining Company and (b) Manufacturing
Company to be formed and operated and (ii) finance the operations of the
Project.
E. The Company and Negor, and each of them, desire that the Acquired Claims
be used as collateral for credit enhancement purposes for any loan or other
indebtedness incurred for funds necessary or appropriate to finance the
operations of the Project.
NOW, THEREFORE, IN CONSIDERATION OF TUE RECITALS SPECIFIED ABOVE THAT SHALL BE
DEEMED TO BE A SUBSTANTIVE PART OF THIS AGREEMENT, AND THE MUTUAL COVENANTS,
PROMISES, UNDERTAKINGS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES SPECIFIED IN
THIS AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE
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HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE OBLIGATED LEGALLY AND EQUITABLY,
THE PARTIES DO HEREBY COVENANT, PROMISE, AGREE, REPRESENT AND WARRANT AS
FOLLOWS:
ARTICLE I
DEFINITIONS
As used in this Agreement, the terms specified below in this Article I
shall have the definitions and meanings specified immediately after those terms,
unless a different and common meaning of a term is clearly indicated by the
context, and variants and derivatives of the following terms shall have
correlative meanings. To the extent that certain of the definitions and meanings
specified below suggest, indicate, or express agreements between or among
parties to this Agreement, or specify representations or warranties or covenants
of a party, the parties agree to the same, by execution of this Agreement. The
parties to this Agreement agree that agreements, representations, warranties,
and covenants expressed in any part or provision of this Agreement shall for all
purposes of this Agreement be treated in the same manner as other such
agreements, representations, warranties, and covenants specified elsewhere in
this Agreement, and the article, section or paragraph of this Agreement within
which such an agreement, representation, warranty, or covenant is specified
shall have no separate meaning or effect on the same.
1.1 "Acquired Claims". The mining claims of Negor to be acquired by the
Mining Company pursuant to the provisions of this Agreement and all other
assets, properties and interests of Negor, tangible or intangible (including
contractual, warranty, and other rights), the use or value of which is
inextricably related to or connected with to those mining claims, or which
relate to or result from transactions of Negor involving those mining claims,
including, but not limited to, the ECC (as that term is defined by the
provisions of Section 1.13 of this Agreement) and the MPSA (as that term is
defined by the provisions of Section 1.17 of this Agreement)
1.2 "Affiliate". When used with respect to a person, an "affiliate" of that
person is a person controlling, controlled by, or under common Control with that
person.
1.3 "Agreement. This Option Agreement Regarding Negor RR Cement Corporation
Project, including all of its schedules and exhibits and all other documents
specifically referred to in this Agreement that have been or are to be delivered
by a party to this Agreement to the other party to this Agreement in connection
with the Transaction or this Agreement, and including all duly adopted
amendments, modifications, and supplements to or of this Agreement and such
schedules, exhibits and other documents.
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1.4 "BMG". The Bureau of Mines and Geosciences Division of the DENR.
1.5 "Business Day". Any day that is not a Saturday, Sunday, or a day on
which banks in Las Vegas, Nevada, are authorized to close.
1.6 "Closing". The completion and consummation of the Transaction, to occur
as contemplated by the provisions of Article II of this Agreement.
1.7 "Closing Date". The date on which the Closing actually occurs, which
shall not in any event be prior to satisfaction or waiver of the conditions to
Closing specified by the provisions of Article VIII of this Agreement.
1.8 "Closing Time". The time at which the Closing actually occurs. All
events that are to occur at the Closing Time shall, for all purposes, be deemed
to occur simultaneously, except to the extent, if at all, that a specific order
of occurrence is otherwise described.
1.9 "Commission". The United States of America Securities and Exchange
Commission.
1.10 "Control". Generally, the power to direct the management or affairs of
a person.
1.11 "DENR". The Philippine Department of Environment and Natural
Resources.
1.12 "ECC". The Environmental Compliance Certificate issued by the DENR.
1.13 "Financial Statements". The balance sheet, income statement, statement
of stockholders' equity and statement of cash flows or, in each instance,
equivalent statements as commonly provided to shareholders of Negor.
1.14 "GAAP". Generally Accepted Accounting Principles required by the
Commission, as in effect on the date of any statement, report or determination
that purports to be, or is required to be, prepared or made in accordance with
GAAP. All references in this Agreement to financial statements prepared in
accordance with GAAP shall be defined and mean in accordance with GAAP
consistently applied throughout the periods to which reference is made.
1.15 "Manufacturing Facilities". All easements, rights of way, licenses,
grants, rights, warehouses, stores, plants, production facilities, manufacturing
facilities,
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equipment, furniture, buildings, utility facilities, pumps, drains, pipes,
fittings, vehicles, tools, machinery, garages, out buildings, storage
facilities, processing facilities, fixtures and improvements owned or leased by
the Manufacturing Company or otherwise used by the Manufacturing Company in
connection with the operation of its business, or leased or subleased by the
Manufacturing Company to other persons.
1.16 "MPSA". The Mineral Production Sharing Agreement to which Negor and
the BMG are parties.
1.17 "Transaction". That series of transactions and events contemplated and
specified by the provisions of Section 2.1 of this Agreement.
ARTICLE II
THE TRANSACTION
2.1 The Transaction. On the Closing Date, and at the Closing Time, subject
in all instances to each of the terms, conditions, provisions and limitations
specified by the provisions of this Agreement:
2.1.1 Conveyance of Claims. Negor shall grant, transfer, convey, and
assign to the Mining Company, by instruments satisfactory in form and
substance to the Mining Company and its counsel, and the Mining Company
shall acquire from Negor, the Acquired Claims.
2.1.2 Appointment of Members of Board of Directors of the Mining
Company. Negor shall be entitled to appoint two (2) members of the Board of
Directors of the Mining Company, which Board of Directors shall have at
least six (6) members.
2.1.3 Appointment of Member of Board of Directors of the Manufacturing
Company. Negor shall be entitled to appoint one (1) member of the Board of
Directors of the Manufacturing Company, which Board of Directors shall have
at least eight (8) members.
2.1.4 Raw Material Supply Agreement. The Mining Company shall prepare,
sign and deliver, or cause to be prepared, signed and delivered, to the
Manufacturing Company, an agreement for the sale by the Mining Company to
the Manufacturing Company of limestone, shale and related products on the
terms and subject to the conditions satisfactory to the Mining Company
Manufacturing Company, and each of them.
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2.1.5 Assignment of Management of Mine Operations. The Mining Company
shall prepare, sign and deliver, or cause to be prepared, signed and
delivered, to the Manufacturing Company, any and all documents and other
instruments necessary or appropriate to assign to the Manufacturing Company
the sole and exclusive unfettered right and authority to finance, manage
and supervise mining operations for the Project.
2.1.6 Option to Acquire Common Stock. The Company shall enter into,
sign and deliver, or cause to be entered into, signed and delivered to
Negor, any and all documents and instruments necessary or appropriate to
vest in Negor the unfettered full and complete option to acquire, for and
during that period of four (4) years following the date of acceptance by
the Company of a commercial feasibility study and report for the Project,
which study and report are sufficient to enable the Company to obtain any
and all funds necessary or appropriate to finance the development and
operation of the Project, that number of shares of the Company's $.001 par
value common stock equal to the lesser of (a) two million (2,000,000) such
shares, or (b) equal to ten percent (10%) of the then issued and
outstanding shares of that common stock, at a purchase price of Five United
States Dollars ($5.00) per share.
2.1.7 Acquisition by Negor of Ownership Interest in the Manufacturing
Company. The Manufacturing Company shall prepare, sign and deliver, or
cause to be prepared, signed and delivered, to Negor any and all documents
and other instruments necessary or appropriate to vest in Negor a free,
carried ownership interest in the Manufacturing Company equal to ten
percent (10%). As a result of such ownership interest, Negor shall be
entitled to have allocated to it ten percent (10%) of the net profits,
losses and credits of the Manufacturing Company.
2.1.8 Acquisition by the Company of Ownership Interest iii the
Manufacturing Company by the Company. The Manufacturing Company shall
prepare, sign and deliver, or cause to be prepared, signed and delivered,
to the Company any and all documents and other instruments necessary or
appropriate to vest in the Company an ownership interest in the
Manufacturing Company equal to ninety percent (90%). As a result of such
ownership interest, the Company shall be entitled to have allocated to it
ninety percent (90%) of the net profits, losses and credits of the
Manufacturing Company.
2.1.9 Ownership Interest of Negor in the Mining Company. The Mining
Company shall prepare, sign and deliver, or cause to be prepared, signed
and delivered, to Negor any and all documents and other instruments
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appropriate to vest in Negor an ownership interest in the Mining Company
equal to forty percent (40%). As a result of such ownership interest, Negor
shall be entitled to have allocated to it forty percent (40%) of the net
profits, losses and credits of the Mining Company.
2.1.10 Ownership Interest of the Company in the Mining Company. The
Mining Company shall prepare, sign and deliver, or cause to be prepared,
signed and delivered, to the Company any and all documents and other
instruments necessary or appropriate to vest in the Company an ownership
interest in the Mining Company equal to forty percent (40%). As a result of
such ownership interest, the Company shall be entitled to have allocated to
it forty percent (40%) of the net profits, losses and credits of the Mining
Company.
2.1.11 Ownership Interest of Third Party in the Mining Company. The
Mining Company shall prepare, sign and deliver, or cause to be prepared,
signed and delivered, to one or more third party investors any and all
documents and other instruments necessary or appropriate to vest
collectively in those third party investors an ownership interest in the
Mining Company equal to twenty percent (20%). As a result of such ownership
interest, those third party investors shall be entitled to have allocated
to it twenty percent (20%) of the net profits, losses and credits of the
Manufacturing Company.
2.1.12 Supply Agreement. The Manufacturing Company and the Mining
Company, and each of them, shall prepare, sign and deliver, or cause to be
prepared, signed and delivered to each other, an agreement pursuant to
which the Mining Company will supply to the Manufacturing Company any and
all raw materials which the Manufacturing Company will require to
manufacture cement and related products ("Supply Agreement"). The amount
paid by the Manufacturing Company to the Mining Company for those raw
materials, pursuant to the provisions of the Supply Agreement, shall be the
costs of the Mining Company to mine and produce those raw materials, plus a
modest profit to be agreed upon by the Mining Company and the Manufacturing
Company, and each of them.
2.2 Calculation of Net Profits, Losses and Credits. For purposes of this
Agreement, any and all net profits, losses and credits shall be determined using
GAAP.
2.3 Closing. The Closing shall occur at the offices of Xxxxxx Xxxxxxx
Xxxxxxxxx, 2201 0MM Citra Building, San Xxxxxx Avenue, Ortigas Center, Pasig
City, Philippines, at 10:00 A.M., local time, on that date which is two (2)
business days immediately after the date upon which all conditions precedent to
the Closing shall occur, or at
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place and time as the Company and Negor may agree upon, on the Closing Date.
2.4 Relationships. The relationships and business affairs and dealings
between and among the Mining Company and the Manufacturing Company shall have a
term of fifty (50) years and shall be renewed for the maximum periods permitted
by law. Negor, the Company, the Mining Company, and the Manufacturing Company,
and each of them, are independent entities, with separate and independent
businesses and operations. Negor, the Company, the Mining Company and the
Manufacturing Company, and each of them, are interested only in the results
obtained by each other, and each shall have the sole control of the manner and
means of conducting is respective business and operations. Neither Negor, the
Company, the Mining Company nor the Manufacturing Company shall have the right
to require any person to take any action which would jeopardize the independent
relationships between Negor, the Company, the Mining Company and the
Manufacturing Company, and each of them.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants the following, the truth and accuracy
of each of which shall constitute a condition precedent to the obligations of
Negor created by the provisions of this Agreement.
4.1 Organization and Qualification. The Company is a corporation duly
organized, validly existing, and in good standing pursuant to the laws of
Nevada. The Company has full and complete right, power, and authority to own its
properties and assets, and to carry on its business as a Nevada corporation. The
Articles of Incorporation and the Bylaws are in full force and effect, and the
Company is not in breach or violation of any of the provisions thereof.
4.2 Authority Relative to This Agreement. The Company has the requisite
corporate power and authority to enter into this Agreement and to carry out its
obligations created by the provisions of this Agreement. The execution and
delivery of this Agreement and the consummation of the Transaction have been
duly authorized and approved by the requisite corporate authority of the Company
and no other corporate proceedings on the part of the Company are necessary to
approve and adopt this Agreement or to approve the consummation of the
Transaction. This Agreement has been duly and validly executed and delivered by
the Company and constitutes a valid and binding obligation of the Company,
enforceable in accordance wit its terms, except as such enforceability may be
limited by general principles of equity, bankruptcy, insolvency, moratorium and
similar laws relating to creditors' rights generally.
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4.3 Absence of Breach; No Consents. The execution, delivery and performance
of this Agreement, and the performance by the Company of its obligations created
by the provisions of this Agreement do not (a) conflict with, and will not
result in a breach of, any of the provisions of the Articles of Incorporation or
Bylaws of the Company; (b) contravene any law, rule or regulation of any State
or Commonwealth or of the United States of America, or of any applicable foreign
jurisdiction, or any order, writ, judgment, injunction, decree, determination,
or award affecting or obligating the Company in such a manner as to provide a
basis for enjoining or otherwise preventing consummation of the Transaction; (c)
conflict with or result in a material breach of or default pursuant to any
material indenture or loan or credit agreement or any other material agreement
or instrument to which the Company is a party, in such a manner as to provide a
basis for enjoining or otherwise preventing consummation of the Transaction; or
(d) require the authorization, consent, approval or license of any third party
of such a nature that the failure to obtain the same would provide a basis for
enjoining or otherwise preventing consummation of the Transaction.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF NEGOR
Negor represents and warrants the following, the truth and accuracy of each
of which shall constitute a condition precedent to the obligations of the
Company created by the provisions of this Agreement.
5.1. Organization and Qualification. Negor is a corporation duly organized,
validly existing, and in good standing pursuant to laws of the Philippines and
has the requisite corporate power and authority to conduct its business as it is
now being conducted. The charter document and the Bylaws or similar documents of
and for Negor are in full force and effect, and Negor is not in breach or
violation of any of the provisions thereof.
5.2 Authority Relative to This Agreement. This Agreement has been duly and
validly executed and delivered by Negor and constitutes a valid and binding
obligation of Negor enforceable in accordance with its terms, except as such
enforceability may be limited by general principles of equity, bankruptcy,
insolvency, moratorium and similar laws relating to creditors' rights generally.
Negor has all requisite corporate power and authority to enter into this
Agreement and to consummate the Transaction, and its doing so has been duly and
sufficiently authorized, subject only to governmental regulatory approvals as
required by law. The execution and delivery of this Agreement and the
consummation of the Transaction have been duly authorized and approved by the
requisite corporate authority of Negor and no other corporate proceedings on the
part of Negor are
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necessary to approve and adopt this Agreement or to approve the consummation of
the Transaction.
5.3 Absence of Breach; No Consents. The execution, delivery, and
performance of this Agreement, and the performance by Negor of its obligations
created by the provisions of this Agreement, do not (a) conflict with or result
in a breach of any of the provisions of the charter document or Bylaws or
similar documents of Negor; (b) contravene any law, ordinance, rule, or
regulation of the Philippines any applicable jurisdiction, or contravene any
order, writ, judgment, injunction, decree, determination, or award of any court
or other authority having jurisdiction, or cause the suspension or revocation of
any authorization, consent, approval, or license, presently in effect, which
affects or obligates, Negor or all or any part of the Acquired Claims and will
not have a material adverse effect on the validity of this Agreement or on the
validity of the consummation the Transaction; (c) conflict with or result in a
material breach of or default pursuant to any material indenture or loan or
credit agreement or any other material agreement or instrument to which Negor is
a party or by which any of the Acquired Claims may be affected or obligated; (d)
require the authorization, consent, approval, or license of any third party; or
(e) constitute grounds for the loss or suspension of any permits, licenses, or
other authorizations used in connection with the Acquired Claims.
5.4 Financial Statements. All of the historical financial statements
presented in the Financial Statements were prepared from the books and records
of Negor. The Financial Statements fairly and accurately present the financial
condition of Negor as at the dates and for the periods indicated. Without
limiting the foregoing, at the date of the balance sheets included in the
Financial Statements Negor owned each of the assets included in preparation of
those balance sheets, and the valuation of such assets is not more than their
fair saleable value (on an item by item basis) at that date; and Negor had no
liabilities for which the Acquired Claims or any part of the Acquired Claims is
responsible or liable, other than those included in balance sheets. From the
date of this Agreement through the Closing Date Negor will continue to prepare
financial statements on the same basis that it has done so in the past, will
promptly deliver the same to the Company, and from and after such delivery the
foregoing representations will be applicable to each financial statement so
prepared and delivered.
5.5. No Undisclosed Liabilities. Negor has no liabilities relating to or
affecting the Acquired Claims which are not adequately presented or reserved
against those balance sheets included in the Financial Statements.
5.6 No Material Adverse Change, etc. Since the date of those balance sheets
included in the Financial Statements, there has not been (a) any material
adverse change
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in the condition of the Acquired Claims; (b) any damage, destruction or loss,
whether covered by insurance or not, having a material adverse effect on the
condition of the Acquired Claims, or adversely affecting the Acquired Claims;
(c) any entry into or termination of any material commitment, contract,
agreement or transaction affecting the Acquired Claims, other than this
Agreement; (d) any transfer of or right granted pursuant to any lease, license,
agreement, relating to the Acquired Claims; (e) any sale or other disposition of
any of the Acquired Claims, or any mortgage, pledge or imposition of any lien or
other encumbrance on any of the Acquired Claims, or any agreement relating to
any of the foregoing; or (f) any default or breach in any material respect
pursuant to any contract, license or permit held by or for or affecting the
Acquired Claims.
5.7 Taxes. Negor has properly filed or caused to be filed all appropriate
income, property and other tax returns, reports, and declarations that are
required by applicable law to be tiled by it and that relate to or in any way
affect the Acquired Claims and has paid, or made full and adequate provision for
the payment of, all appropriate income, property and other taxes properly due
for the periods covered by such returns, reports, and declarations, except such
taxes, if any, as are adequately reserved against in the Balance Sheets included
in the Financial Statements.
5.8 Litigation (a) No material investigation or review by any governmental
or similar agency or authority with respect to the Acquired Claims or the use
thereof is pending or, to the best of the knowledge of Negor, threatened, nor
has any governmental entity indicated to Negor an intention to conduct the same,
and (b) there is no action, suit or proceeding pending or, to the best of the
knowledge of Negor, threatened against or affecting the Acquired Claims at law
or in equity, or before any governmental department, commission, board, bureau,
agency, or instrumentality.
5.9 Employees, Etc. There are no collective bargaining, bonus, profit
sharing, compensation, or other plans, agreements, trusts, funds, or
arrangements maintained by Negor for the benefit of directors, officers or
employees of Negor whose principal responsibilities relate to the Acquired
Claims, and there are no employment, consulting, severance, or indemnification
arrangements, agreements, or understandings between Negor, on the one hand, and
any current or former directors, officers or other employees (or Affiliates
thereof) of Negor whose principal responsibilities relate to the Acquired
Claims, on the other hand. Negor is not, and following the Closing will not be,
obligated by any express or implied contract or agreement to employ, directly or
as consultant or otherwise, any person for any specific period of time or until
any specific age whose principal responsibilities relate to, and whose
compensation shall be derived from, the operation or exploitation of the
Acquired Claims.
5.10 Compliance With Laws. Each of the Acquired Claims is in substantial
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compliance with all, and has received no notice of any violation of any, laws or
regulations applicable to its operations and exploitation, including, without
limitation, the laws and regulations relevant to the use or utilization of
premises, or with respect to which compliance is a condition of operating,
mining or otherwise exploiting the Acquired Claims, and Negor has all permits,
licenses, rights, and other governmental authorizations necessary to conduct,
operate and exploit the Acquired Claims. All such permits, licenses, rights, and
other governmental authorizations will, as a part and consequence of the
Transaction, be transferred to the Mining Company at the Closing.
5.11 Ownership of Acquired Claims. Negor has good, marketable and insurable
title to all real property and all personal property owned by Negor and
comprising a part of the Acquired Claims in such a manner as to create the
appearance or reasonable expectation that the Acquired Claims are owned or
leased by it; such ownership is free and clear of all liens, claims,
encumbrances and charges; no other person has any ownership or similar right in,
or contractual or other right to acquire any such right in, any of the Acquired
Claims; and such ownership will be conveyed to the Mining Company at the Closing
pursuant to the Transaction. Negor does not know of any potential action by any
party, governmental or other, and no proceedings with respect thereto have been
instituted of which Negor has notice, that would materially affect the Mining
Company's ability to operate, mine and otherwise exploit each of the Acquired
Claims.
5.12 Contracts. The Acquired Claims are not affected by any contracts,
agreements or understandings, whether express or implied, written or verbal,
other than this Agreement. Negor is not a party to any executory contract to
sell or transfer any part of any of the Acquired Claims.
5.13 Labor Matters. There are no activities or controversies, including,
without limitation, any labor organizing activities, election petitions or
proceedings, proceedings preparatory thereto, unfair labor practice complaints,
labor strikes, disputes, slowdowns, or work stoppages, pending or, to the best
of the knowledge of Negor, threatened, affecting employees of Negor whose
principal activities relate to the Acquired Claims.
5.14 Title to and Utilization of Acquired Claims. Negor has the unfettered
right to operate, mine and otherwise exploit the Acquired Claims and is not
aware of any claim, notice or threat to the effect that its fight to operate,
mine and otherwise exploit the Acquired Claims is subject in any way to any
challenge, claim, assertion of rights, proceedings toward condemnation or
confiscation, in whole or in part, or is otherwise subject to challenge.
5.15 Full Disclosure. The documents, certificates, and other writings
furnished or
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to be furnished by or on behalf of Negor to the Company pursuant to the
provisions of this Agreement, taken together in the aggregate, do not and will
not contain any untrue statement of a material fact, or omit to state any
material fact necessary to make the statements made, considering the
circumstances pursuant to which they are made, not misleading.
5.16 Actions Since Balance Sheet Dates. Since the date of those balance
sheets included in the Financial Statements, Negor has taken no actions that
would be prohibited pursuant to the provisions of this Agreement (without the
prior consent of the Company) after the date of this Agreement.
ARTICLE VI
COVENANTS OF THE COMPANY
The Company hereby affords Negor the following covenants, thereby agreeing
to do or not to do, as the case may be, the following, the fulfillment of each
of which shall constitute a condition precedent to the obligations of Negor
created by the provisions of this Agreement.
6.1 Affirmative Covenants. From the date of this Agreement through the
Closing Date, the Company will take every action reasonably required of it in
order to satisfy the conditions to Closing specified in this Agreement and
otherwise to ensure the prompt and expedient consummation of the Transaction
substantially as contemplated by this Agreement, and will exert all reasonable
efforts to cause the Transaction to be consummated, provided in all instances
that the representations and warranties of Negor in this Agreement are and
remain true and accurate and that the covenants and agreements of Negor in this
Agreement are honored and that the conditions to the obligations of the Company
specified in this Agreement are not incapable of satisfaction.
6.2 Cooperation. The Company shall cooperate with Negor and its counsel,
accountants and agents in every way in carrying out the Transaction and in
delivering all documents and instruments deemed reasonably necessary or useful
by counsel to Negor.
6.3 Expenses. Whether or not the Transaction is consummated, all costs and
expenses incurred by the Company in connection with this Agreement and the
Transaction shall be paid by the Company.
6.4 Updating of Exhibits and Disclosure Documents. The Company shall notify
Negor of any changes, additions or events which may cause any change in or
addition to any schedules or exhibits delivered by it pursuant to this
Agreement, promptly after the occurrence of the same and at the Closing by the
delivery of updates of all schedules and
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exhibits. No notification made pursuant to this section shall be deemed to cure
any breach of any representation or warranty made in this Agreement, unless
Negor specifically agrees thereto in writing nor shall any such notification be
considered to constitute or result in a waiver by Negor of any condition
specified in this Agreement.
ARTICLE VII
COVENANTS OF NEGOR
Negor hereby affords the Company the following covenants, thereby agreeing
to do or not to do, as the case may be, the following, the fulfillment of each
of which shall constitute a condition precedent to the obligations of the
Company created by the provisions of this Agreement.
7.1 Affirmative Covenants. From the date of this Agreement through the
Closing Date, Negor will take every action reasonably required of it to satisfy
the conditions to closing specified in this Agreement and otherwise to ensure
the prompt and expedient consummation of the Transaction substantially as
contemplated by the provisions of this Agreement, and will exert all reasonable
efforts to cause the Transaction to be consummated, provided in all instances
that the representations and warranties of the Company in this Agreement are and
remain true and accurate and that the covenants and agreements of the Company in
this Agreement are correct and that the conditions to the obligations of Negor
specified in this Agreement are not incapable of satisfaction and subject, at
all times, to the right and ability of the directors of Negor to satisfy their
fiduciary obligations.
7.2 Access and Information. Negor shall afford to the Company and to the
Company's accountants, counsel, and other representatives reasonable access
during normal business hours throughout the period prior to the Closing to all
of Negor's properties, books, instruments, documents, contracts, commitments,
records and other information and personnel relating to the Acquired Claims and,
during such period, Negor shall furnish promptly to the Company (a) all written
communications to its officers, directors, employees or to its shareholders
generally relating to the Acquired Claims, and (b) all other information
relating to the Acquired Claims as the Company may request, but no investigation
pursuant to this section shall affect any representations or warranties of
Negor, or the conditions to the obligations of the Company to consummate the
Transaction. In the event of the termination of this Agreement, the Company
will, and will cause its representatives to, deliver to Negor or destroy all
documents, work papers, and other material, and all copies thereof, obtained by
it or on its behalf from Negor as a result of this Agreement or in connection
with this Agreement, whether so obtained before or after the execution of this
Agreement, and will hold in confidence all confidential information that has
been designated as such by Negor in
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writing or by appropriate and obvious notation, and will not use any such
confidential information, except in connection with the Transaction, until such
time as such information is otherwise publicly available. The Company and its
representatives shall assert their rights created by the provisions of this
section in such manner as to minimize interference with the business of Negor.
7.3 No Solicitation. Negor and those persons acting on behalf of Negor will
not, and Negor will use its best efforts to cause its officers, employees,
agents, and representatives (including any investment banker) to not, directly
or indirectly, solicit, encourage, or initiate any discussions with, or
negotiate or otherwise deal with, or provide any information to, any person
other than the Company and its officers, employees, and agents, relating to the
Acquired Claims. Negor will notify the Company immediately upon receipt of any
inquiry, offer or proposal relating to any of the foregoing. None of the
foregoing shall prohibit providing information to other persons in a manner in
keeping with the ordinary conduct of Negor's business, or providing information
to government authorities.
7.4 Conduct of Business Pending Consummation of the Transaction. Prior to
the consummation of the Transaction or the termination of this Agreement
pursuant to its terms, unless the Company shall otherwise consent in writing,
and except as otherwise contemplated by this Agreement, Negor will comply with
each of the following:
7.4.1 Condition of Claims. Negor shall use its best efforts to keep
intact the Acquired Claims, keep available the services of the employees of
Negor whose principal activities relate to the Acquired Claims and Negor
shall notify the Company immediately of any event or occurrence or
emergency material to, or affecting any material part of, the Acquired
Claims.
7.4.2 Restriction on Borrowing. Negor shall not create, incur or
assume any long-term or short-term indebtedness for money borrowed or make
any expenditures or commitment for expenditures affecting the Acquired
Claims.
7.4.3 Restriction on Alienation. Negor shall not sell, lease,
mortgage, encumber, or otherwise dispose of or grant any interest in any of
the Acquired Claims.
7.4.4 Restriction on Contracts. Negor shall not enter into, or
terminate, any material right, contract, agreement, grant, commitment,
license, permit, or understanding relating to or affecting the Acquired
Claims.
7.4.5 Continued Restrictions. Negor shall not enter into any
agreement,
14
commitment, or understanding, whether in writing or otherwise, with respect
to any of the matters referred to in Paragraphs 7.4.1 through 7.4.4,
inclusive, of this Agreement.
7.4.6 Tax Matters. Negor will continue to file properly and promptly
when due all tax returns, reports, and declarations required to be filed by
it relating to the Acquired Claims, and will pay, or make full and adequate
provision for the payment of, all taxes and governmental charges due from
or payable by it relating to the Acquired Claims.
7.4.7 Compliance with Laws. Negor will comply with all laws and
regulations relating to the Acquired Claims.
7.5 Cooperation. Negor will cooperate with the Company and its counsel,
accountants, and agents in every way in consummating and closing the Transaction
and in delivering all documents and instruments deemed reasonably necessary or
useful by the Company.
7.6 Expenses. Whether or not the transaction is consummated, all costs and
expenses incurred by Negor in connection with this Agreement and the Transaction
shall be paid by Negor.
7.7 Publicity. Prior to the Closing any written news releases by Negor
relating to this Agreement or the Transaction shall be submitted to the Company
for review and approval prior to release by Negor, and shall be released only in
a form approved by the Company.
7.8 Updating of Exhibits and Disclosure Documents. Negor shall notify the
Company of any changes, additions, or events which may cause any change in or
addition to any schedules or exhibits delivered by it pursuant to this Agreement
promptly after the occurrence of the same and again at the Closing by delivery
of appropriate updates to all such schedules and exhibits. No such notification
made pursuant to this section shall be deemed to cure any breach of any
representation or warranty made in this Agreement, unless the Company
specifically agrees thereto in writing nor shall any such notification be
considered to constitute or result in a waiver by the Company of any condition
specified in this Agreement.
ARTICLE VIII
CONDITIONS TO CLOSING AND OBLIGATIONS OF PARTIES
8.1 Conditions to Obligation of the Company. The obligations of the Company
15
to consummate the Transaction are subject to the satisfaction, at or before the
Closing, of all the following conditions. The Company may waive any or all of
these conditions in whole or in part without prior notice; provided, however,
that no such waiver of a condition shall constitute a waiver by the Company of
any of its other rights or remedies, at law or in equity, if Negor should be in
default of any of its representations, warranties, or covenants specified by the
provisions of this Agreement.
8.1.1 Receipt of Approvals. This Agreement and the Transaction shall
have received all approvals, consents, authorizations, and waivers from
governmental and other regulatory agencies and other third parties required
to consummate the Transaction.
8.1.2 Absence of Litigation. There shall not be in effect a
preliminary or permanent injunction or other order by any court or similar
authority which prohibits the consummation of the Transaction.
8.1.3 Performance by Negor. Negor shall have performed in all material
respects each of its agreements and obligations specified in this Agreement
and required to be performed on or prior to the Closing and shall have
complied with all material requirements, rules, and regulations of all
regulatory authorities having jurisdiction relating to the Transaction.
8.1.4 Condition of Acquired Claims. No material adverse change shall,
in the judgment of the Company, have occurred regarding the condition of
the Acquired Claims since the date of those balance sheets included in the
Financial Statements, other than those, if any, that result from the
changes permitted by, and transactions contemplated by, this Agreement.
8.1.5 Correctness of Representations and Warranties. The
representations and warranties of Negor specified in this Agreement shall
be true in all material respects as of the date of this Agreement and,
except in such respects as, in the judgment of the Company, do not
materially and adversely affect the condition of the Acquired Claims, as of
the Closing Time as if made as of such time.
8.1.6 Approval by the Board of Directors of Negor. The entering into,
signing, and delivery of this Agreement by Negor and the consummation of
the Transaction have been approved by the Board of the Directors of Negor.
8.1.7 Receipt of Officer's Certificate. The Company shall have
received from Negor an officer's certificate, executed by the Chief
Executive Officer and
16
the Chief Financial Officer of Negor (in their capacities as such) dated
the Closing Date, as to the satisfaction of the conditions in paragraphs
8.1.1 through 8.1.5, inclusive, of this Agreement.
8.1.8 Opinion of Counsel. The Company shall have received, on and as
of the Closing Date, an opinion of counsel to Negor, as to the matters set
forth in Sections 5.1. 5.2, 5.3, 5.8, 5.9, 1.10, 5.12, 5.13, 5.15 and 5.16
of this Agreement (to the best of the knowledge of such counsel, if
appropriate, all subject to customary limitations reasonably acceptable to
counsel to the Company; and such other closing documents and instruments as
the Company shall request, in each case reasonably satisfactory in form and
substance to the Company and its counsel.
8.1.9 Lessor's Certificate. The Company shall have received from each
lessor with whom Negor has a material (as reasonably determined by the
Company) lease of real property, which lease comprises part of the Acquired
Claims, certificates satisfactory in form and substance to the Company and
its counsel as to the continuing validity of such leases and the absence of
any basis for the termination thereof.
8.1.10 BMG Geological Evaluation Report. The Company shall have
received from Negor a copy of the official BMG Geological Evaluation
Report, satisfactory in form and substance to the Company and its counsel.
8.1.11 ECC. The Company shall have received from Negor a copy of the
ECC, satisfactory in form and substance to the Company and its counsel.
8.1.12 MPSA. The Company shall have received from Negor a copy of the
MPSA, satisfactory in form and substance to the Company and its counsel.
8.1.13 Negor's Charter Documents. The COmpany shall have received from
Negor a copy of Negor's Articles (or similar charter documents), certified
by the Philippine agency with which those charter documents are filed.
8.1.14 Certificate of Good Standing. The Company shall have received
from Negor a Certificate of Good Standing (or similar document) signed and
sealed by the Philippine regulatory agency with which Negor's charter
documents are filed, dated within sixty (60) days of the Closing Date.
8.1.15 Negor's Bylaws. The Company shall have received from Negor a
copy of Negor's Bylaws (or similar governing rules), accompanied by an
officer's
17
certificate signed by the President and Secretary of Negor attesting to the
fact that such Bylaws (or similar governing rules) have been duly adopted
and serve as the Bylaws (or similar governing rules) of Negor.
8.1.16 Financial Statements. The Company shall have received from
Negor a copy of the Financial Statements.
8.2 Conditions to Obligation of Negor. The obligations of Negor to
consummate the Transaction are subject to the satisfaction, at or before the
Closing, of all the following conditions. Negor may waive any or all of these
conditions in whole or in part without prior notice; provided, however, that no
such waiver of a condition shall constitute a waiver by Negor of any of its
other rights or remedies, at law or in equity, if the Company should be in
default of any of its representations, warranties, or covenants specified by the
provisions of this Agreement.
8.2.1 Receipt of Approvals. This Agreement and the Transaction shall
have received all approvals, consents, authorizations, and waivers from
governmental and other regulatory agencies and other third parties required
by law to consummate the Transaction.
8.2.2 Absence of Litigation. There shall not be in effect a
preliminary or permanent injunction or other order by any court or similar
authority which prohibits the consummation of the Transaction.
8.2.3 Performance of Obligations. The Company shall have performed in
all material respects its agreements and obligations specified in this
Agreement required to be performed on or prior to the Closing.
8.2.4 Accuracy of Representations and Warranties. The representations
and warranties of the Company specified in this Agreement shall be true in
all material respects as of the date of this Agreement.
8.2.5 Receipt of Officers Certificate. Negor shall have received from
the Company an officers' certificate, executed by the Chief Financial
Officer and the Chief Executive Officer of the Company (in their capacities
as such), dated the Closing Date, as to the satisfaction of the conditions
of Sections 4.1 through 4.3, inclusive, of this Agreement.
8.2.6 Payment Upon Signing This Agreement. On the date that the
Company signs and delivers this Agreement to Negor, the Company shall pay
or cause to be paid to Negor the principal amount of Fifty Thousand United
18
Dollars ($50,000.00).
8.2.7 Subsequent Payment by the Company. No later than September 30,
1998, from funds contributed to the capital of the Company for the purpose
of developing the Project, the Company shall pay or cause to be paid to
Negor the principal amount of Fifty Thousand United States Dollars
($50,000.00); provided, however, in the event that such payment is delayed
because of any review or other action taken by any regulatory agency having
jurisdiction of the method pursuant to which the Company anticipates
receiving those funds, the Company shall provide written notice to Negor
immediately of the occurrence of that event, and such amount shall be paid
by the Company no later than October 31, 1998.
8.2.8 Payment by the Manufacturing Company. At such time as all
feasibility studies and similar studies and reports are completed which are
necessary or appropriate for the construction and operation of the
Manufacturing Facilities and which will be required prior to the receipt of
the funds required to finance construction of the Manufacturing Facilities,
which funds may be contributions to capital and proceeds from one or more
borrowing transactions, or either or them, the Manufacturing Company shall
pay to Negor One Million United States Dollars ($1,000,000.00). In
connection with any and all such borrowing transactions, the Acquired
Claims may be utilized as collateral or otherwise be pledged to enhance the
credit of the borrower.
8.2.9 Approval by the Board of Directors of the Company. The entering
into, signing and delivery of this Agreement and the consummation of the
Transaction by the Company shall have been approved by the Board of
Directors of the Company.
8.3 Obligations of the Company to Negor upon the Signing and Delivery of
this Agreement. On the date that this Agreement is signed and delivered by the
Company and Negor, the Company shall deliver to Negor a certified or cashier's
checks payable to Negor in the principal amount of Fifty Thousand United States
Dollars ($50,000.00).
8.4 Obligations of Parties at Closing.
8.4.1 Negor to the Company. On the Closing Date, Negor shall deliver
to the Company the following instruments and documents:
8.4.1.1 Consents. All consents necessary to Transaction.
19
8.4.1.2 Officers' Certificates. Officers' certificate pursuant to
the provisions of Paragraph 8.1.7 of this Agreement.
8.4.1.3 Opinion of Counsel. Opinion of counsel pursuant to the
provisions of Paragraph 8.1.8 of this Agreement.
8.4.1.4 Lessor's Certificate. The lessor's certificate
contemplated by the provisions of Paragraph 8.1.9 of this Agreement.
8.4.1.5 BMG Geological Evaluation Report. A copy of the official
BMG Geological Evaluation Report, satisfactory in form and substance
to the Company and its counsel.
8.4.1.6 ECC. A copy of the ECC, satisfactory in form and
substance to the Company and its counsel.
8.4.1.7 MPSA. A copy of the MPSA, satisfactory in form and
substance to the Company and its counsel.
8.4.1.8 Negor's Charter Document. A copy of Negor's Articles (or
similar charter document).
8.4.1.9 Negor's Bylaws. A copy of Negor's Bylaws (or similar
governing rules).
8.4.1.10 Financial Statements. A copy of the Financial
Statements.
8.4.1.11 Certificate of Good Standing. The Certificate of Good
Standing contemplated by the provisions of Paragraph 8.1.14 of this
Agreement.
8.4.2 The Company to Negor. On the Closing Date, the Company shall
deliver to Negor all consents necessary to consummate the Transaction.
ARTICLE IX
INDEMNIFICATION
9.1. Indemnification By The Company. The Company shall defend, indemnify
and hold harmless Negor, its officers, directors, stockholders, representatives,
agents, accountants, attorneys, servants and employees, and their respective
heirs, personal and legal representatives, guardians, successors and
20
assigns, from and against any and all claims, threats, liabilities, taxes,
interest, fines, penalties, suits, actions, proceedings, demands, damages,
losses, costs and expenses (including attorneys and experts' fees and court
costs) of every kind and nature arising out of, resulting from, or in connection
with:
9.1.1. Failure of Representation or Warranty. Any misrepresentation or
breach by the Company of any representation or warranty specified in this
Agreement.
9.1.2. Breach of Agreement. Any nonfulfillment, failure to comply or
breach by the Company of or with any covenant, promise or agreement of the
Company specified in this Agreement.
9.2. Indemnification by Negor. Negor shall defend, indemnify and bold
harmless the Company and its respective heirs, personal and legal
representatives, guardians, successors and assigns, from and against any and all
claims, threats, liabilities, taxes, interest, fines, penalties, suits, actions,
proceedings, demands, damages, losses, costs and expenses (including attorneys'
and experts' fees and court costs) of every kind and nature arising out of,
resulting from, or in connection with:
9.2.1. Failure of Representation or Warranty. Any misrepresentation,
omission or breach by Negor of any representation or warranty specified in
this Agreement.
9.2.2. Breach of Agreement. Any nonfulfillment, failure to comply or
breach by Negor of or with any covenant, promise or agreement of Negor
specified in this Agreement.
ARTICLE X
TERMINATION, AMENDMENT WAIVER
10.1 Termination. This Agreement and the Transaction may be terminated at
any time prior to the Closing.
10.1.1 Mutual Consent. By mutual consent of the Company and Negor; or
10.1.2 Occurrence of Material Breach. By either Negor or the Company,
upon written notice to the other, if the conditions to such party's
obligations to consummate the Transaction, in the case of the Company, as
provided in Section
21
8.1 of this Agreement, or, in the case of Negor, as provided in Section 8.2
of this Agreement, were not, or cannot reasonably be, satisfied on or
before December 31, 1999, unless the failure of condition is the result of
the material breach of this Agreement by the party seeking to terminate.
10.2 Waiver. At any time prior to the Closing Date, the Company or Negor,
by action taken by their respective Boards of Directors, may (a) extend the time
for the performance of any of the obligations or other acts of the other
specified in this Agreement, (b) waive any inaccuracies in the representations
and warranties specified in this Agreement or in any document delivered pursuant
to this Agreement, or (c) waive compliance with any of the agreements or
conditions specified in this Agreement. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if specified in an
instrument in writing signed on behalf of such party.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1. Notices. Any notice, direction or instrument required or permitted to
be given pursuant to this Agreement shall be given in writing by (a) telegram,
facsimile transmission or similar method, if confirmed by mail as herein
provided, by mail; (b) if mailed postage prepaid, by certified mail, return
receipt requested; or (iii) hand delivery to any party at the addresses of the
parties specified, below. If given by telegram or facsimile transmission or
similar method or by hand delivery, such notice, direction or instrument shall
be deemed to have been given or made on the day on which it was given, and if
mailed, shall be deemed to have been given or made on the second (2nd) business
day following the day after which it was mailed. Any party may, from time to
time by similar notice, give notice of any change of address, and in such event,
the address of such party shall be deemed to be changed accordingly. The
address, telephone number and facsimile transmission number for the notice of
each party are:
If to Company: Nevada Utah Gold Inc.
do Xxxxx 000
000 Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
If to Negor: Negor RR Cement Corporation x/x Xxxxx Xxxxx
Xxxxxxxx Xxxxxxxx
Xxxxx Xxxxxx, Xxxxxx, Xxxxx Xxxxxx
11.2. Recovery of Enforcement Costs. In the event either party incurs any
22
expense, including attorneys' fees, by reason of any default or alleged default
by the other party, the party prevailing in any action or proceeding brought to
resolve the issue of any such default or alleged default shall be entitled to
recover such prevailing party's expenses incurred to prosecute or defend such
action or proceeding, including, without limitation, actual attorneys' fees and
costs incurred preparatory to such prosecution and defense. Moreover, while a
court of competent jurisdiction may assist in determining whether or not the
fees actually incurred are reasonable under the circumstances then existing,
that court shall not to be governed by any judicially or legislatively
established fee schedule, and said fees and costs are to include those as may be
incurred on appeal of any issue and all of which fees and costs shall be
included as part of any judgment, by cost xxxx or otherwise, and where
applicable, any appellate decision rendered in or arising out of such action or
proceeding. For purposes of this Agreement, in any action or proceeding
instituted by a party based upon any default or alleged default of this
Agreement by the other party, the prevailing party shall be that party in any
such action or proceeding (i) in whose favor a judgment is entered, or (ii)
prior to trial, hearing or judgment such other party shall pay all or any
portion of amounts claimed by the party seeking payment, or such other party
shall eliminate the condition, cease the act, or otherwise cure the omission
claimed by the party initiating such action or proceeding.
11.3. Assignment. Each party shall have the right, without the consent of
the other party, to assign, transfer, sell, pledge, hypothecate, delegate, or
otherwise transfer, whether voluntarily, involuntarily or by operation of law,
any of such party's rights or obligations created by the provisions of this
Agreement.
11.4. Captions and Interpretations. Captions of the articles, sections and
paragraphs of this Agreement are for convenience and reference only, and the
works specified therein shall in no way be held to explain, modify, amplify or
aid in the interpretation, construction, or meaning of the provisions of this
Agreement. The language in all parts to this Agreement, in all cases, shall be
construed in accordance with the fair meaning of that language as if prepared by
all parties and not strictly for or against any party. Each party and counsel
for such party have reviewed this Agreement. The rule of construction, which
requires a court to resolve any ambiguities against the drafting party, shall
not apply in interpreting the provisions of this Agreement.
11.5. Entire Agreement. This Agreement is the final written expression and
the complete and exclusive statement of all the agreements, conditions,
promises, representations, warranties and covenants between the parties with
respect to the subject matter of this Agreement, and this Agreement supersedes
all prior or contemporaneous agreements, negotiations, representations,
warranties, covenants, understandings and discussions by and between and among
the parties, their respective representatives, and any other person, with
respect to the subject matter specified in this Agreement. This
23
Agreement may be amended only by an instrument in writing which expressly refers
to this Agreement and specifically indicates that such instrument is intended to
amend this Agreement and is signed by each of the parties. Each parry
represents, warrants and covenants that in executing this Agreement that such
party has relied solely on the terms, conditions and provisions specified in
this Agreement. Each of the parties additionally represents, warrants and
covenants that in executing and delivering this Agreement that such parry has
placed no reliance whatsoever on any statement, representation, warranty,
covenant or promise of the other party, or any other person, not specified
expressly in this Agreement, or upon the failure of the other party or any other
person to make any statement, representation, warranty, covenant or disclosure
of any nature whatsoever. The parties have included this section to preclude (i)
any claim that either party was in any manner whatsoever induced fraudulently to
enter into, execute and deliver this Agreement, and (ii) the introduction of
parol evidence to vary, interpret, supersede, modify, amend, annul, supplement
or contradict the terms, conditions and provisions of this Agreement.
11.6. Choice of Law and Jurisdiction. The Company is a Nevada corporation
with publicly traded stock issued and outstanding. As a result, the Company is
subject to the jurisdiction of numerous regulatory agencies in the United States
of America, including, but not limited to, the Commission. In that regard, this
Agreement shall be deemed to have been entered into in the State of Nevada,
United States of America. All questions concerning the validity, interpretation,
or performance of any of the terms, conditions and provisions of this Agreement
or of any of the rights or obligations of the parties shall be governed by, and
resolved in accordance with, the laws of the State of Nevada without regard to
conflicts of law principles.
11.7. Waiver and Modification. No modification, supplement or amendment of
this Agreement or of any covenant, condition, or limitation specified in this
Agreement shall be valid unless the same is made in writing and duly executed by
both parties. No waiver of any covenant, condition, or limitation specified in
this Agreement shall be valid unless the same is made in writing and duty
executed by the party making the waiver. No waiver of any provision of this
Agreement shall be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver.
11.8. Number and Gender. Whenever the singular number is used in this
Agreement and, when required by the context, the same shall include the plural,
and vice versa; the masculine gender shall include the feminine and the neuter
genders, and vice versa, and the word "person" shall include individual,
company, sole proprietorship, corporation, joint venture, association, joint
stock company, fraternal order, cooperative, league, club, society,
organization, trust, estate, governmental agency, political
24
subdivision or authority, firm, municipality, congregation, partnership, or
other form of entity.
11.9. Successors and Assigns. This Agreement and each of its provisions
shall obligate the heirs, executors, administrators, successors, and assigns of
each of the parties. Nothing specified in this section, however, shall be a
consent to the assignment or delegation by any party of such party's respective
rights and obligations created by the provisions of this Agreement.
11.10. Third Party Beneficiaries. Except as expressly specified by the
provisions of this Agreement, this Agreement shall not be construed to confer
upon or give to any person, other than the parties hereto, any right, remedy or
claim pursuant to, or by reason of, this Agreement or of any term or condition
of this Agreement.
11.11. Severability. In the event any part of this Agreement, for any
reason, is determined by a court of competent jurisdiction to be invalid, such
determination shall not affect the validity of any remaining portion of this
Agreement, which remaining portion shall remain in full force and effect as if
this Agreement had been executed with the invalid portion thereof eliminated. It
is hereby declared the intention of the parties that they would have executed
the remaining portion of this Agreement without including any such part, parts,
or portion which, for any reason, may be hereafter determined to be invalid.
11.12. Governmental Rules and Regulations. The Transaction and the
relationships contemplated by the provisions of this Agreement are and shall
remain subject to any and all present and future orders, rules and regulations
of any duly constituted authority having jurisdiction of the Transaction and
those relationships.
11.13. Execution in Counterparts. This Agreement may be prepared in
multiple copies and forwarded to each of the parties for execution. All of the
signatures of the parties may be affixed to one copy or to separate copies of
this Agreement and when all such copies are received and signed by all the
parties, those copies shall constitute one agreement which is not otherwise
separable or divisible. Counsel for the Company shall keep all of such signed
copies and shall conform one copy to show all of those signatures and the dates
thereof and shall mail a copy of such conformed copy to each of the parties
within thirty (30) days after the receipt by such counsel of the last signed
copy, and such counsel shall cause one such conformed copy to be filed in the
principal office of such counsel.
11.14. Reservation of Rights. The failure of any party at any time or times
hereafter to require strict performance by any other party of any of the
warranties
25
representations, covenants, terms, conditions and provisions specified in this
Agreement shall not waive, affect of diminish any right of such party failing to
require strict performance to demand strict compliance and performance therewith
and with respect to any other provisions, warranties, terms, and conditions
specified in this Agreement. Any waiver of any default shall not waive or affect
any other default, whether prior or subsequent thereto, and whether the same or
of a different type. None of the representations, warranties, covenants,
conditions, provisions and terms specified in this Agreement shall be deemed to
have been waived by any act or knowledge of any party, its agents, trustees,
officers, or employees and any such waiver shall be made only by an instrument
in writing, signed by the waiving party and directed to any non-waiving party
specifying such waiver, and each party reserves such party's rights to insist
upon strict compliance herewith at all times.
11.15. Survival of Covenants, Representations and Warranties. All
covenants, representations, and warranties made by each party to this Agreement
shall be deemed made for the purpose of inducing the other party to enter into
and execute this Agreement. The representations, warranties, and covenants
specified in this Agreement shall survive the Closing and shall survive any
investigation by either party whether before or after the execution of this
Agreement. The covenants, representations, and warranties of the Company and
Negor are made only to and for the benefit of the other and shall not create or
vest rights in other persons.
11.16. Concurrent Remedies. No right or remedy specified in this Agreement
conferred on or reserved to the parties is exclusive of any other right or
remedy specified in this Agreement or by law or equity provided or permitted;
but each such right and remedy shall be cumulative of, and in addition to, every
other right and remedy specified in this Agreement or now or hereafter existing
at law or in equity or by statute or otherwise, and may be enforced concurrently
therewith or from time to time. The termination of this Agreement for any reason
whatsoever shall not prejudice any right or remedy which any party may have,
either at law, in equity, or pursuant to the provisions of this Agreement.
11.17 Force Majeure. a. If any party is rendered unable, completely or
partially, by the occurrence of an event of "force majeure" (defined later in
this section) to perform such party's obligations created by the provisions of
this Agreement, such party shall give to the other party prompt written notice
of the event of "force majeure" with reasonably complete particulars concerning
such event; thereupon, the obligations of the party giving such notice, so far
as those obligations are affected by the event of "force majeure" shall be
suspended during, but no longer than, the continuance of the event of "force
majeure.' The party affected by such event of "force majeure" shall use all
reasonable diligence to resolve) eliminate and terminate the event of "force
majeure" as quickly as practicable.
26
b. The requirement that an event of "force majeure" shall be remedied with
all reasonable dispatch as hereinabove specified, shall not require the
settlement of strikes, lockouts or other labor difficulties by the party
involved, contrary to such party's wishes, and the resolution of any and all
such difficulties shall be handled entirely within the discretion of the party
concerned.
c. The term "force majeure" as used herein shall be defined as and mean any
act of God, strike, civil disturbance, lockout or other industrial disturbance,
act of the public enemy, war, blockage, public riot, earthquake, tornado,
hurricane, lightening, fire, public demonstration, storm, flood, explosion,
governmental action, governmental delay, restraint or inaction, unavailability
of equipment, and any other cause or event, whether of the kind enumerated
specifically herein, or otherwise, which is not reasonably within the control of
the party claiming such suspension.
11.18 Arbitration. In the event that there shall be a dispute arising out
of or relating to this Agreement, the Transaction, any document referred to
herein or related to the subject matter hereof, or the subject matter of any of
the same, the parties agree that such dispute shall be submitted to binding
arbitration, upon the written request of one party after the service of that
request on the other party, as follows:
a. Any dispute relating to the operations of the Mining Company in the
Philippines, the operations of the Manufacturing Company in the Philippines, or
the Project in the Philippines, or any dispute relating to the Acquired Claims,
shall be settled by arbitration in the Philippines. The parties shall each
appoint one person to hear and determine the dispute. If these two arbitrators
cannot agree, then the two arbitrators shall choose a third impartial arbitrator
whose decision shall be final and conclusive on both parties. The cost of the
arbitration shall be borne by the losing party or in such proportions as the
arbitrators decide.
b. Any other dispute shall be submitted to binding arbitration pursuant to
the auspices of, and pursuant to the rules of, the American Arbitration
Association and the Nevada arbitration rules and procedures then in effect, or
such other procedures as the parties may agree to at the time, before a tribunal
of three (3) arbitrators, one of which shall be selected by each of the parties
to the dispute, and the third of which shall be selected by the two arbitrators
so selected. Any award issued as a result of such arbitration shall be final and
obligate the parties, and shall be enforceable in any court having jurisdiction
over the party against whom enforcement is sought.
27
IN WITNESS WHEREOF, the parties have executed this Option Agreement in
duplicate on the date specified in the preamble of this Agreement.
Negor RR Cement Corporation,
a Philippine corporation
By: /s/ ANTONIO XXXXXXX XXXXXXXXX
-------------------------------
Antonio Xxxxxxx Xxxxxxxxx
Its: President/Director
Nevada Utah Gold Inc.,
a Nevada corporation
By: /s/ XXXXXX XXXXXX
-------------------------------
Xxxxxx Xxxxx
Its: Xxxxxxxxx/Xxxxxxxx
00
XXXXXXXXXXXXXXX
XXXXXXXX OF THE PHIL. )
) ss.
CITY OF PASIG )
On 16th July 1998, before me, Notary Public, personally appeared Antonio Xxxxxxx
Xxxxxxxxx (personally known to me or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to this
instrument, and acknowledged to me that he/she/they executed this instrument in
his/her/their authorized capacity/capacities, and that by his/her/their
signature(s) on the instrument the person(s), or the entity on behalf of which
the person(s) acted, executed the instrument.
[SEAL]
WITNESS my hand and official seal.
Signature: _______________________________
