EXHIBIT 10.32
AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of this the
30th day of October, 1996 by and among (a) Zeotech Industries, Inc. ("Zeotech"),
Xx Xxxxxxx ("Xxxxxxx"), X.X. Xxxxxx ("Xxxxxx"), KJM Capital Corp. ("KJM"),
Xxxxx X. XxXxxxxx ("XxXxxxxx"), and Xxxx X. Xxxxxxxx, Xx. ("Xxxxxxxx"), (b) LS
Capital Corporation, a Delaware corporation ("LS Capital"), and (c) Xxxxxxx Gold
Group, Inc., a Delaware corporation and a wholly-owned subsidiary of LS Capital
prior to the consummation of the transactions provided for by this Agreement
("Xxxxxxx"). For purposes of this Agreement, in certain cases, Zeotech and
Hemsted (acting separately or collectively) are referred to collectively as
"Zeotech/Hemsted", and KJM and XxXxxxxx (acting separately or collectively)
are referred to collectively as "KJM/XxXxxxxx."
Recitals
WHEREAS, Zeotech/Hemsted, Groves, KJM/XxXxxxxx and Xxxxxxxx (such persons
are referred to separately as a "Contributor" and collectively as the
"Contributors") separately own certain mining claims, namely the Xxxxxx Claims
and that portion of the Barstow claims that are not committed, such claims being
more fully described on Exhibit A hereto applicable to the Xxxxxx Claims and
Exhibit B hereto applicable to the Barstow Claim (such claims are referred to
separately as a "Claim" and collectively as the "Claims");
WHEREAS, the Contributors are willing to contribute the Claims to Xxxxxxx
in exchange for shares of common stock in Xxxxxxx (the "Xxxxxxx Shares") and
shares of common stock in LS Capital (the "LS Capital Shares"), all upon the
terms, provisions and conditions set forth hereinafter; and
WHEREAS, Xxxxxxx is willing to receive a contribution of the Claims in
exchange for the issuance of Xxxxxxx Shares, all upon the terms, provisions and
conditions set forth hereinafter, and LS Capital is willing for Xxxxxxx to
receive a contribution of the Claims in exchange for the issuance of LS Capital
Shares, all upon the terms, provisions and conditions set forth hereinafter;
Agreement
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, $10.00 and other good and valuable consideration (the receipt, adequacy
and sufficiency of which are hereby acknowledged by each of the parties hereto),
each of the parties mentioned above hereby agrees as follows:
1. General Representations and Warranties.
(a) Each of Zeotech, Hemsted, Groves, KJM, XxXxxxxx, and Xxxxxxxx
(referred to hereinafter separately as a "Representor" and collectively as the
"Representors"), severally but
not jointly, hereby represents and warrants to LS Capital and Xxxxxxx that such
Representor has full right, power and authority to execute and deliver this
Agreement and all other agreements, documents and instruments to be executed in
connection herewith and perform such Representor's obligation hereunder and
thereunder; each corporate Representor has been duly organized, is validly
existing and is in good standing in the jurisdiction in which it was
incorporated; the execution and delivery by a corporate Representor of this
Agreement and all other agreements, documents and instruments to be executed by
such Representor in connection herewith have been authorized by all necessary
corporate action by such Representor; when this Agreement and all other
agreements, documents and instruments to be executed by such Representor in
connection herewith are executed by such Representor and delivered to LS Capital
and Xxxxxxx, this Agreement and such other agreements, documents and instruments
will constitute the valid and binding agreements of such Representor enforceable
against such Representor in accordance with their respective terms; neither the
execution and delivery of this Agreement or any other agreements, documents and
instruments to be executed in connection herewith nor the consummation of the
transactions contemplated hereby or thereby will (i) violate, conflict with or
result in the breach or termination of, or otherwise give any other contracting
party the right to terminate, or constitute a default (by way of substitution,
novation or otherwise) under the terms of, any contract to which such
Representor is a party or by which such Representor is bound or by which any of
the assets of such Representor is bound or affected, (ii) violate any judgment
against, or binding upon, such Representor or upon the assets of such
Representor, (iii) result in the creation of any lien, charge or encumbrance
upon any assets of such Representor pursuant to the terms of any such contract,
or (iv) violate any provision in the charter documents, bylaws or any other
agreement affecting the governance and control of any corporate Representor;
there are no actions, suits, claims or legal, administrative or arbitration
proceedings or investigations pending or threatened against, involving or
affecting any of the assets of such Representor, this Agreement, or the
transactions contemplated hereby, and there are no outstanding orders, writs,
injunctions or decrees of any court, governmental agency or arbitration tribunal
against, involving or affecting any assets of such Representor, this Agreement,
or the transactions contemplated hereby; no consent or approval from any person
is required in connection with the execution and delivery of this Agreement
other than board of director approval of each corporate Representor, which has
already been obtained; and the representations and warranties made immediately
above and elsewhere herein are material to LS Capital and Xxxxxxx and are being
relied upon by LS Capital and Xxxxxxx in connection with their decisions to
enter into the transactions provided for by this Agreement.
(b) Each of LS Capital and Xxxxxxx, severally but not jointly, hereby
represents and warrants to each Representor that it has full right, power and
authority to execute and deliver this Agreement and all other agreements,
documents and instruments to be executed by it in connection herewith and
perform its obligation hereunder and thereunder; it has been duly organized, is
validly existing and is in good standing in the jurisdiction in which it was
incorporated; the execution and delivery by it of this Agreement and all other
agreements, documents and instruments to be executed by it in connection
herewith have been authorized by all necessary corporate action; when this
Agreement and all other agreements, documents and instruments to be executed by
it in connection herewith are executed by it and delivered to
the Representors, this Agreement and such other agreements, documents and
instruments will constitute the valid and binding agreements of it enforceable
against it in accordance with their respective terms; neither the execution and
delivery of this Agreement or any other agreements, documents and instruments to
be executed in connection herewith nor the consummation of the transactions
contemplated hereby or thereby will (i) violate, conflict with or result in the
breach or termination of, or otherwise give any other contracting party the
right to terminate, or constitute a default (by way of substitution, novation or
otherwise) under the terms of, any contract to which it is a party or by which
it is bound or by which any of the assets of it is bound or affected, (ii)
violate any judgment against, or binding upon, it or upon its assets, (iii)
result in the creation of any lien, charge or encumbrance upon any of its assets
pursuant to the terms of any such contract, or (iv) violate any provision in the
charter documents, bylaws or any other agreement affecting the governance and
control of it; there are no actions, suits, claims or legal, administrative or
arbitration proceedings or investigations pending or threatened against,
involving or affecting any of its assets, this Agreement, or the transactions
contemplated hereby, and there are no outstanding orders, writs, injunctions or
decrees of any court, governmental agency or arbitration tribunal against,
involving or affecting any of its assets, this Agreement, or the transactions
contemplated hereby; no consent or approval from any person is required in
connection with the execution and delivery of this Agreement; the outstanding
capital stock of Xxxxxxx consists of 5,000,000 Xxxxxxx Shares, all of which are
owned by LS Capital; the Xxxxxxx Shares and the LS Capital Shares to be issued
to the Contributors pursuant to this Agreement shall be duly authorized, validly
issued, fully paid and non-assessable at the time that they are issued; and the
representations and warranties made immediately above and elsewhere herein are
material to each Representor and are being relied upon by each Representor in
connection with such Representor's decision to enter into the transactions
provided for by this Agreement.
2. Contribution of Claims and Issuance of Xxxxxxx Shares.
(a) Each Contributor agrees to contribute as soon as possible after the
date of this Agreement, by means of customary assignment documents reasonably
selected by LS Capital and Xxxxxxx and reasonably approved by the Contributors
(the "Assignments"), full right, title and interest in and to each Claim held by
such Contributor, free and clear of all liens, mortgages, security interests,
encumbrances, claims and restrictions on the transfer thereof. Each Contributor
hereby agrees that he will execute and deliver, or cause to be executed and
delivered, from time to time after the date hereof, upon the request of LS
Capital or Xxxxxxx, such other instruments of assignment, transfer and
conveyance and will take such other action as LS Capital or Xxxxxxx may
reasonably require to effectuate and/or evidence the contribution provided for
herein. Each Contributor hereby represents and warrants to LS Capital and
Xxxxxxx that the execution by such Contributor and delivery to Xxxxxxx of the
Assignment respecting the Claims to be contributed to Xxxxxxx by such
Contributor will vest in Xxxxxxx full right, title and interest in and to such
Claims, free and clear of any and all encumbrances, security interests, liens,
charges, claims, restrictions or limitations, whatsoever, by any person of any
kind, including those on the transfer thereof, whether known or unknown.
(b) In consideration of the contribution by the Contributors of the Claims
to Xxxxxxx, each
Contributor shall be issued Xxxxxxx Shares; provided, however, pending Xxxxxxx'x
receipt of the full amount of the Additional Capital Contribution (as defined
herein) the stock certificates representing the Xxxxxxx Shares issued to the
Contributors shall be held by Xxxxxxx and released to the Contributors only upon
Xxxxxxx'x receipt of the full amount of the Additional Capital Contribution. The
number of Xxxxxxx Shares to issued to each Contributor is indicated in the table
below.
Number of Xxxxxxx Shares
Zeotech/Hemsted 1,250,000
Xxxxxx 1,250,000
KJM/XxXxxxxx 1,375,000
Xxxxxxxx 1,125,000
(c) (i) If any Contributor or LS Capital (referred to in this Section 2(c)
as the "Transferring Stockholder") desires to dispose of its Xxxxxxx Shares now
owned or hereafter acquired, the Transferring Stockholder shall first offer, in
writing in the manner provided for in Section 10(g) hereof, to sell its Xxxxxxx
Shares to Xxxxxxx, at a purchase price and on such terms as the Transferring
Stockholder intends in good faith to sell to a bona fide third party. The
written offer shall contain the identity of the proposed transferee and the
purchase price and terms upon which the transfer is proposed to occur. Following
the receipt of the written offer provided for hereinabove, Xxxxxxx shall have an
option, exercisable for thirty (30) days, to purchase all or any portion of the
Xxxxxxx Shares proposed to be sold at the price and on the terms set forth in
the notice. If Xxxxxxx fails to exercise its option with respect to all of the
Xxxxxxx Shares proposed to be transferred, then Xxxxxxx shall notify immediately
each of its stockholders of its failure to fully exercise its option. The
Xxxxxxx stockholders shall then have concurrent options, exercisable for fifteen
(15) days commencing on the date of Xxxxxxx'x notice, to purchase all or any
portion of the Xxxxxxx Shares not purchased by Xxxxxxx, on a basis proportionate
to their respective stock ownership. If one or more of the Xxxxxxx stockholders
elects to purchase such stockholders' full proportionate shares and one or more
others do not, the Xxxxxxx stockholders who exercised their options to purchase
their full proportionate shares shall have concurrent options to purchase all of
the remaining Xxxxxxx Shares subject to the options, on a basis proportionate to
their respective stock ownership, exercisable for a period of five (5) days from
the expiration of the Xxxxxxx stockholders' initial concurrent options. The
foregoing procedure shall be repeated until each Xxxxxxx stockholder has had an
opportunity to purchase as many of the Xxxxxxx Shares subject to the options as
such stockholder desires, subject to the right of the other Xxxxxxx stockholders
to purchase their full proportionate shares. Notwithstanding anything else
contained in this Section 2(c), neither Xxxxxxx nor the Xxxxxxx stockholders
shall have any rights to purchase any Xxxxxxx Shares proposed to be transferred
by the Transferring Stockholder unless Xxxxxxx and/or the Xxxxxxx stockholders,
separately or
collectively, exercise the options provided for in this Section 2(c) with
respect to all, and not less than all, of the Xxxxxxx Shares proposed to be
transferred.
(ii) In the event that all of the Xxxxxxx Shares proposed to be sold
by the Transferring Stockholder are not purchased in accordance with this
Section 2(c) before the expiration of the time periods established in this
Section 2(c) therefor, all of the Xxxxxxx Shares may be sold to the transferee
identified in the written notice to Xxxxxxx at a price no lower and upon terms
no more favorable than the price and terms that the Xxxxxxx Shares could have
been purchased pursuant to the options to which it was subject. Such sale shall
be free and clear of the terms of this Section 2(c) during the three-month
period beginning on the date that the last option period in this Section 2(c)
terminates, but thereafter any Xxxxxxx Shares not so sold shall again be subject
to the terms and conditions of this Section 2(c). Any attempted disposition in
contravention of the provisions of this Section 2(c) shall be null and void and
of no force and effect and, therefore, shall not preclude the exercise of the
options provided for in this Section 2(c).
(iii) The closing of the sale and purchase of any Xxxxxxx Shares
pursuant to this Section 2(c) shall occur within fifteen (15) days after the
last option exercised is exercised in accordance with this Section 2(c). At the
closing, (a) the Transferring Stockholder shall deliver the appropriate stock
certificates, properly endorsed or accom- panied by a properly prepared and
executed stock power, and (b) the purchasers shall deliver the consideration
required by this Section 2(c). Each of the parties hereby grants to the other
the right of specific performance with respect to this Section 2(c) in
recognition of the uniqueness of the subject matter hereof.
(iv) All certificates representing Xxxxxxx Shares now owned or that
may hereafter be acquired by a Contributor or LS Capital shall have a legend on
the back thereof substantially as follows:
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT
OF FIRST REFUSAL AGREEMENT WHICH PROVIDES SIGNIFICANT RESTRICTIONS ON THE
TRANSFERABILITY OF THE SHARES REPRESENTED HEREBY.
Such certificates shall state on the front thereof substantially as
follows:
SEE RESTRICTIONS ON TRANSFER HEREOF ON REVERSE SIDE.
(v) The agreements contained in this Section 2(c) may be terminated
by an instrument in writing signed by all Contributors and LS Capital. The
agreements contained in this Section 2(c) shall automatically terminate whenever
the Xxxxxxx Shares or any securities received with respect to the Xxxxxxx Shares
becomes registered under the Act.
3. Issuance of LS Capital Shares. In further consideration of the
contribution by Zeotech/Hemsted, Xxxxxx and KJM/XxXxxxxx of their respective
Claims to Xxxxxxx,
Zeotech/Hemsted, Xxxxxx and KJM/XxXxxxxx shall be issued LS Capital Shares. The
number of LS Capital Shares to issued to Zeotech/Hemsted, Xxxxxx and
KJM/XxXxxxxx is indicated in the table below.
Number of LS Capital Shares
Zeotech/Hemsted 166,666
Xxxxxx 166,666
KJM/XxXxxxxx 166,667
4. Additional Capital Contribution. From time to time but on or before
Xxxxx 00, 0000, Xxxxxxx/Xxxxxxx, Xxxxxx and KJM/XxXxxxxx shall make an
additional capital contribution (the "Additional Capital Contribution") to
Xxxxxxx in the aggregate amount of $500,000 for which Zeotech/Hemsted, Xxxxxx
and KJM/XxXxxxxx shall receive no additional Xxxxxxx Shares, LS Capital Shares
or any other item. Each of Zeotech/Hemsted, Xxxxxx and KJM/XxXxxxxx grants to LS
Capital a pledge of and security interest in and agrees and acknowledges that LS
Capital has and shall continue to have a pledge of and security interest each
and every one of the Xxxxxxx Shares issued to them separately pursuant to
Section 2 above, to secure their obligations to make the Additional Capital
Contribution on or before April 30, 1997; and if they fail to fulfill such
obligations timely LS Capital shall have all rights and remedies of a secured
party with respect to such Xxxxxxx Shares.
5. Securities Representations and Warranties.
(a) Each Contributor (other than Xxxxxxxx), severally but not jointly,
hereby represents and warrants to LS Capital and Xxxxxxx that such Contributor
is not a "U.S. Person" as that term in defined in Regulation S under Securities
Act of 1933 (the "Act"); at the time the buy order originated for any Xxxxxxx
Shares or LS Capital Shares and the date of this Agreement, such Contributor was
and will be outside of the United States of America (the "U.S."); such
Contributor is acquiring the Griffin Shares and the LS Capital Shares for its
own account and not on behalf of any U.S. Person, and a sale has not been
prearranged with a U.S. Person or a purchaser in the U.S.; such Contributor
agrees that all offers and sales of the Xxxxxxx Shares and the LS Capital Shares
prior to the expiration of a period commencing on the date of the issuance
thereof and ending 40 days thereafter shall only be made in compliance with the
safe harbor contained in Regulation S, or pursuant to the registration thereof
or an exemption from registration (and in all cases in accordance with Section
2(c) hereof), and that all offers and sales in the U.S. after expiration of the
40- day period shall be made only pursuant to the registration thereof or an
exemption from registration (and in all cases in accordance with Section 2(c)
hereof); all offering documents received by such Contributor have included
statements, and all stock certificates that such Contributor shall receive
representing Xxxxxxx Shares or LS Capital Shares shall feature legends, to the
effect that the Xxxxxxx Shares and the LS Capital Shares have not been
registered under the Act and may not be offered or sold in the U.S. or to U.S.
Persons prior to the expiration of a period commencing on the date of the
issuance thereof and ending 40 days thereafter and all offers and sales shall
only be made in compliance with the safe harbor contained in Regulation S, or
pursuant to the registration thereof or an exemption from registration; such
Contributor has been furnished with LS Capital's most recent Annual Report on
Form 10-K and any subsequent Quarterly Reports on Form 10-Q and Current Reports
on Form 8-K; such Contributor is familiar with the business and financial
condition, properties, operations and prospects of LS Capital and Xxxxxxx, and
has been given full access to all material information concerning the condition,
properties, operations and prospects of LS Capital and Xxxxxxx; such Contributor
has had an opportunity to ask such questions of, and to receive such information
from, LS Capital and Xxxxxxx as such Contributor has desired and to obtain any
additional information necessary to verify the accuracy of the information and
data received; and such Contributor is satisfied that there is no material
information concerning the condition, properties, operations and prospects of LS
Capital and Xxxxxxx, of which such Contributor is unaware.
(b) Xxxxxxxx hereby represents and warrants to LS Capital and Xxxxxxx that
he is a director of LS Capital and that as such he is familiar with the business
and financial condition, properties, operations and prospects of LS Capital and
Xxxxxxx, he has been given full access to all material information concerning
the condition, properties, operations and prospects of LS Capital and Xxxxxxx,
he has had an opportunity to ask such questions of, and to receive such
information from, LS Capital and Xxxxxxx as he has desired and to obtain any
additional information necessary to verify the accuracy of the information and
data received, and he is satisfied that there is no material information
concerning the condition, properties, operations and prospects of LS Capital and
Xxxxxxx, of which he is unaware; he has such knowledge, skill and experience in
business, financial and investment matters so that he is capable of evaluating
the merits and risks of an acquisition of the Xxxxxxx Shares; he has reviewed
its or his financial condition and commitments and that, based on such review,
he is satisfied that he (a) has adequate means of providing for contingencies,
(b) has no present or contemplated future need to dispose of all or any of the
Xxxxxxx Shares to satisfy existing or contemplated undertakings, needs or
indebtedness, (c) is capable of bearing the economic risk of the ownership of
the Xxxxxxx Shares for the indefinite future, and (d) has assets or sources of
income which, taken together, are more than sufficient so that he could bear the
loss of the entire value of the Xxxxxxx Shares; he is acquiring the Xxxxxxx
Shares solely for his own beneficial account, for investment purposes, and not
with a view to, or for resale in connection with, any distribution of the
Xxxxxxx Shares; he understands that the Xxxxxxx Shares have not been registered
under the Act or any state securities laws and therefore the Xxxxxxx Shares are
"restricted" under such laws; and he has not offered or sold any portion of the
Xxxxxxx Shares and has no present intention of reselling or otherwise disposing
of any portion of the Xxxxxxx Shares either currently or after the passage of a
fixed or determinable period of time or upon the occurrence or non-occurrence of
any predetermined event or circumstance.
6. Securities Registration. Xxxxxxx may at the option of its Board of
Directors register with the United States Securities and Exchange Commission
(the "Commission") an in-kind dividend to the stockholders of LS Capital
consisting of 1,000,000 Xxxxxxx Shares owned by LS Capital, which shares equal
10% of the total number of outstanding Xxxxxxx Shares. In the event of such
registration, Xxxxxxx shall use its best efforts to qualify such Xxxxxxx Shares
under
the securities laws for each state for which an exemption is not available and
qualification is required, unless the cost and expense of such qualification
outweighs the benefit of qualification. In connection with any registration
undertaken pursuant to this Section 6, each Contributor shall use reasonable
efforts to cooperate with Xxxxxxx and LS Capital and will furnish to Xxxxxxx and
LS Capital in writing such information, as shall be reasonably necessary in
order to assure compliance with federal and applicable state securities laws
pertaining to disclosure and otherwise, with respect to the Claims, the gold
mining industry and the micro-fine xxxxx recovery technology, know-how, trade
secrets and inventions developed by Xxxxxx (as described in United States Patent
No. 5,405,430 or any substitutes, revisions, continuations,
continuations-in-part, renewals, reissues, re-examinations, extensions, and
divisions thereof, or any other Letters Patent therefore in the United States or
any countries foreign to the United States), as well as any subsequent
improvements, modifications, variations, additions, substitutions, or
enhancements of such technology, know-how, trade secrets and inventions.
Moreover, each Contributor shall, upon the request of Xxxxxxx, review drafts of
the registration statement to be filed the Commission and any and all amendments
thereto and furnish Xxxxxxx with such Contributor's comments upon and approval
of or reasons for declining to approve such portions of the drafts for which
Xxxxxxx has requested comments and approval. Any such portions with respect to
which a Contributor has not expressly disapproved in writing shall be deemed
approved by such Contributor. Xxxxxxx shall pay all registration expenses in
connection with any registration undertaken pursuant to this Section 6.
7. Spin-Off. As soon as possible after the registration statement filed in
connection with any registration undertaken pursuant to Section 6 above is
declared effective, LS Capital shall declare and effect to its stockholders a
pro-rata, in-kind dividend of the Xxxxxxx Shares registered. In this connection,
LS Capital shall deliver to each of its stockholders receiving the registered
Xxxxxxx Shares an unlegended stock certificate representing the Xxxxxxx Shares
that such stockholder is to receive as well as a copy of the prospectus
comprising part of the registration statement declared effective during the
course of any registration undertaken pursuant to Section 6.
8. Termination. If Zeotech/Hemsted, Xxxxxx and KJM/XxXxxxxx fails to make
the full $500,000 Additional Capital Contribution on or before April 30, 1997,
this Agreement shall, except as hereafter provided, become null and void, the
parties hereto shall be relieved of any further duties, obligations and
responsibilities with respect to this Agreement, and the parties shall cooperate
in good faith in unwinding all actions taken in reliance on this Agreement.
Notwithstanding the preceding, the following actions shall occur upon the
termination of this Agreement pursuant to the preceding:
(a) Each Contributor shall deliver to LS Capital and Xxxxxxx (as the case
may be) all stock certificates representing Xxxxxxx Shares and LS Capital Shares
not theretofore sold, and such stock certificates shall be cancelled;
(b) LS Capital may exercise the rights of a secured creditor to realize
the portion of the Additional Capital Contribution not made in accordance with
Section 4 above;
(c) Xxxxxxx shall reconvey to each Contributor each Claim contributed by
such Contributor to Xxxxxxx, such reconveyance being by means of a document in
substantially the form of the Assignment contributing such Claim to Xxxxxxx; and
(d) The indemnification provisions of Section 9 shall remain in full force
and effect for two years after the date of termination.
9. General Indemnification.
(a) All representations and warranties made herein by a party hereto shall
survive all transactions provided for or contemplated herein, including, without
limitation, the contribution of the Claims to Xxxxxxx, the issuance and sale of
the Xxxxxxx Shares and the LS Capital Shares, the Additional Capital
Contribution, any registration of the Xxxxxxx Shares permitted in Section 6
hereof, any spin-off of the Xxxxxxx Shares provided for in Section 7 hereof, or
the termination of this Agreement.
(b) Each of Zeotech, Hemsted, Groves, KJM, XxXxxxxx, and Xxxxxxxx,
severally but not jointly, shall protect, indemnify and hold LS Capital and
Xxxxxxx harmless from any and all demands, claims, actions, causes of actions,
lawsuits, proceedings, judgments, losses, damages, injuries, liabilities,
obligations, expenses and costs (including costs of litigation and attorneys'
fees), arising from any breach of any agreement, representation or warranty made
by such indemnifying party in this Agreement.
(c) Each of LS Capital and Xxxxxxx, severally but not jointly, shall
protect, indemnify and hold each of Zeotech, Hemsted, Groves, KJM, XxXxxxxx, and
Xxxxxxxx harmless from any and all demands, claims, actions, causes of actions,
lawsuits, proceedings, judgments, losses, damages, injuries, liabilities,
obligations, expenses and costs (including costs of litigation and attorneys'
fees), arising from any breach of any agreement, representation or warranty made
by it in this Agreement.
10. Securities Indemnification.
(a) Each of Zeotech, Hemsted, Groves, KJM, XxXxxxxx, and Xxxxxxxx,
severally but not jointly, shall protect, indemnify and hold LS Capital and
Xxxxxxx harmless from any and all demands, claims, actions, causes of actions,
lawsuits, proceedings, investigations, judgments, losses, damages, injuries,
liabilities, obligations, expenses and costs (including costs of litigation and
attorneys' fees), arising out of or based upon (a) any untrue statement or
alleged untrue statement of any material fact contained in or incorporated by
reference into the registration statement under which the Xxxxxxx Shares are
registered pursuant to Section 6, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereto, (b) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (c) any material
violation by the indemnifying party of any rule or regulation promulgated under
the Act applicable to the indemnifying party and relating to action or inaction
by the indemnifying party in connection with any such registration; provided,
however, that the indemnifying party
shall be liable in the case of (a) and (b) above only if and to the extent that
the event giving rise to indemnification arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in conformity with information furnished by the indemnifying party in
writing specifically for use in the registration statement or prospectus or
information contained in a writing that has been expressly approved or deemed
approved by the indemnifying party.
(b) Each of LS Capital and Xxxxxxx, severally but not jointly, shall
protect, indemnify and hold each of Zeotech, Hemsted, Groves, KJM, XxXxxxxx, and
Xxxxxxxx harmless from any and all demands, claims, actions, causes of actions,
lawsuits, proceedings, investigations, judgments, losses, damages, injuries,
liabilities, obligations, expenses and costs (including costs of litigation and
attorneys' fees), arising out of or based upon (a) any untrue statement or
alleged untrue statement of any material fact contained in or incorporated by
reference into the registration statement under which the Xxxxxxx Shares are
registered pursuant to Section 6, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereto, (b) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (c) any material
violation by Xxxxxxx or LS Capital of any rule or regulation promulgated under
Act applicable to Xxxxxxx or LS Capital and relating to action or inaction by
Xxxxxxx in connection with any such registration; provided, however, that
Xxxxxxx and LS Capital will not be liable in the case of (a) and (b) above if
and to the extent that the event otherwise giving rise to indemnification arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in conformity with information furnished by a
person otherwise indemnified hereby in writing specifically for use in the
registration statement or prospectus or information contained in a writing that
has been expressly approved or deemed approved by the otherwise indemnified
party.
(c) Promptly after receipt by an indemnified party under this Section 10
of notice of the threat or commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
hereunder, notify each such indemnifying party in writing thereof, but the
omission so to notify an indemnifying party shall not relieve it from any
liability which it may have to any indemnified party to the extent that the
indemnifying party is not prejudice as a result thereof. In case any such action
shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 10 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so elected; provided,
however, that, if the defendants in any such action include both an indemnified
party and an indemnifying party and the related indemnified party shall have
reasonably concluded that there may be reasonable defenses available to it which
are different from or additional to those available to the indemnifying party or
if the interests of the indemnified party reasonably
may be believed to conflict with the interests of the indemnifying party, the
indemnified party shall have the right to select separate counsel and to assume
such legal defenses and otherwise to participate in the defense of such action,
with the expenses and fees of such separate counsel and other expenses related
to such participation to be reimbursed by the indemnifying party as incurred. No
indemnifying party will be subject to any liability for any settlement made
without consent which shall not be unreasonably withheld. No indemnifying party
will consent to the entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability with respect
to such claim or litigation.
11. General.
(a) THIS AGREEMENT AND ALL QUESTIONS RELATING TO ITS VALIDITY,
INTERPRETATION, PERFORMANCE, AND ENFORCEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
(b) Mandatory venue for any controversy arising out of or relating to this
Agreement or any modification or extension thereof, including any claims for
breach, for damages, and/or for recision or reformation, shall be in a court of
competent jurisdiction located in Xxxxxx County, Texas.
(c) This Agreement contains the entire understanding among the parties
hereto with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, inducements, or conditions,
express or implied, oral or written, except as herein contained. This Agreement
may not be modified or amended other than by an agreement in writing signed by
all parties affected.
(d) The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
The section headings in this Agreement are for convenience only; they form no
part of this Agreement and shall not affect its interpretation.
(e) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together constitute one and
the same instrument.
(f) The parties hereto hereby agree that time is of the essence for all
purposes of this Agreement.
(g) Any notices to be given hereunder by any party to the other parties
may be effected either by personal delivery in writing, or by mail, registered
or certified, postage prepaid with return receipt requested, addressed to the
one or more parties to be notified at the addresses set forth beneath such
parties' respective signatures below.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have signed their names hereto as
of the first date written above.
ZEOTECH INDUSTRIES, INC.
By: /S/ Xx Xxxxxxx /S/ Xx Xxxxxxx
Xx Xxxxxxx
Name Printed: Xx Xxxxxxx
Title: President
Address: 000 Xxxxxxx Xx #0000 Address: 000 Xxxxxxx Xx #0000
--------------------------------- ---------------------
Xxxxxxxxx X.X X0X 0X0 Xxxxxxxxx X.X X0X 0X0
KJM CAPITAL CORP.
By:/S/ X.X. XxXxxxxx /S/ X.X. XxXxxxxx
Xxxxx X. XxXxxxxx
Name Printed: Xxxxx X. XxXxxxxx
Title: President
Address: 1400 000 Xxxxxxx Xx. Address: 1400 000 Xxxxxxx Xx.
--------------------------------- ---------------------
Vancouver, British Columbia Xxxxxxxxx, Xxxxxxx Xxxxxxxx
XXXXXX X0X 0X0 XXXXXX X0X 0X0
/S/Xxxx X. Xxxxxxxx, Xx. /S/X.X. Xxxxxx, PhD., P.Eng.
Xxxx X. Xxxxxxxx, Xx. X.X. Xxxxxx, PhD., P.Eng.
Address: 0000 Xxxx Xxxxx Xxxx., Xxxxx 000 Address: 000 Xxxxxx Xx. #000
--------------------------------- --------------------
Gulfport, Mississippi 00000 Xxxxxxxxx, Xxxxxxx Xxxxxxxx
XXXXXX X0X 0X0
LS CAPITAL CORPORATION XXXXXXX GOLD GROUP, INC.
By: /S/ Xxxx X. Xxxxxx By: /S/Xxxxxxx X. Xxxxxxxx
Name Printed: Xxxx X Xxxxxx Name Printed:Xxxxxxx X. Xxxxxxxx
Title: President Title: Secretary
Address: 00000 Xxxx Xxxxxxx, Xxxxx 000 Address: 0000 Xxxx Xxxxx Xxxx.,
Xxxxx 000
Xxxxxxx, Xxxxx 00000 Xxxxxxxx, Xxxxxxxxxxx 00000
CERTIFICATE
Each of the undersigned hereby certifies and acknowledges that the
undersigned has signed and executed the foregoing agreement with multiple
original signature pages at separate locations to be effective immediately upon
signing and that the transmission of a telecopier facsimile of their respective
signatures, each to the other, shall be sufficient to cause the mutual delivery
of this executed agreement in order to bind the parties and make the agreement
effective upon the date of signing. It is further certified, acknowledged and
agreed that the original signature pages are to be circulated hereafter but that
the failure of any party to obtain the original signature pages hereafter shall
not affect the validity and effectiveness of this agreement which is effective
from and after the execution by all parties and the transmission by telecopier
facsimile of the signature of all parties, each to the other.
IN WITNESS WHEREOF, the parties hereto have signed their names hereto as
of the first date written above.
ZEOTECH INDUSTRIES, INC.
By: /S/ Xx Xxxxxxx /S/ Xx Xxxxxxx
Xx Xxxxxxx
Name Printed: Xx Xxxxxxx
Title: President
KJM CAPITAL CORP.
By:/S/ X.X. XxXxxxxx /S/ X.X. XxXxxxxx
Xxxxx X. XxXxxxxx
Name Printed: Xxxxx X. XxXxxxxx
Title: President
/S/Xxxx X. Xxxxxxxx, Xx. /S/X.X. Xxxxxx, PhD., P.Eng.
Xxxx X.Xxxxxxxx, Xx. X.X. Xxxxxx, PhD., P.Eng.
LS CAPITAL CORPORATION XXXXXXX GOLD GROUP, INC.
By: /S/ Xxxx X. Xxxxxx By: /S/Xxxxxxx X. Xxxxxxxx
Name Printed: Xxxx X Xxxxxx Name Printed:Xxxxxxx X. Xxxxxxxx
Title: Secretary
