EXHIBIT 10.39
FIRST AMENDMENT TO AGREEMENT
THIS FIRST AMENDMENT TO AGREEMENT (the "First Amendment") is made and
entered into as of this the 22nd day of April, 1997 by and among Zeotech
Industries, Inc., Xx Xxxxxxx, KJM Capital Corp., Xxxxx X. XxXxxxxx, Xxxx X.
Xxxxxxxx, Xx., LS Capital Corporation, a Delaware corporation ("LS Capital"),
Xxxxxxx Gold Group, Inc., also a Delaware corporation ("Xxxxxxx"), and Xxxxxxx
Xxxxxxx ("Xxxxxxx"). For all purposes hereof, the preceding parties (other than
Xxxxxxx) are referred to hereinafter as the "Remaining Parties."
Recitals
WHEREAS, X.X. Xxxxxx ("Xxxxxx") and the Remaining Parties entered into
an Agreement (the "Agreement") dated October 31, 1996 regarding the contribution
of certain mining claims to Xxxxxxx, the issuance of certain shares of stock in
Xxxxxxx, the issuance of certain shares of stock in LS Capital, additional
capital contributions to Xxxxxxx, the registration with the United States
Securities and Exchange Commission of certain shares of stock in Xxxxxxx owned
by LS Capital, the declaration by LS Capital of an in-kind dividend to its
stockholders of the shares so registered, and various additional matters;
WHEREAS, during April 1997, Xxxxxx executed a Release and Partial
Termination Agreement pursuant to which he terminated his status as a party to
the Agreement and all of his rights, liabilities, obligations, duties or
responsibilities with respect thereto;
WHEREAS, Xxxxxxx will receive shares of common stock in Xxxxxxx upon
the satisfaction of certain performance standards set forth in a separate
agreement, and the Remaining Parties require Xxxxxxx to become a party to the
Agreement for certain matters, and Xxxxxxx is willing to become a party to the
Agreement for certain matters; and
WHEREAS, all of the parties named above desire to amend the Agreement
upon the terms, provisions and conditions set forth hereinafter;
Agreement
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the undersigned parties to amend the Agreement, the undersigned parties agree
as follows (all undefined, capitalized terms used herein shall have the meanings
assigned to such terms in the Agreement):
1. Amendments to the Agreement.
a. The Agreement is hereby amended in all relevant
respects so that all
references to Grove be and hereby are deleted.
b. The Agreement is hereby amended so that the two references
to "April 30, 1997" in Section 4 of the Agreement and the one reference to
"April 30, 1997" in Section 8 of the Agreement shall refer to "July 31, 1997."
c. The Agreement is hereby amended in the following respects
with respect to Xxxxxxx, effective immediately upon Xxxxxxx'x acquiring any
shares of common stock in Xxxxxxx:
(i) Xxxxxxx shall be a "Contributor" for purposes of,
and shall be subject to all terms, provisions and conditions of,
Section 2(c) of the Agreement for all purposes whatsoever;
(ii) Xxxxxxx shall be deemed to have made all the
representations and warranties contained in Section 5(a) (if Xxxxxxx is
a non-U.S. resident) or all the representations and warranties
contained in Section 5(b) (if Xxxxxxx is a U.S. resident);
(iii) Xxxxxxx shall be subject to all of the
consequences of termination of the Agreement as set forth in the
introductory language of Section 8 and in Section 8(a) and Section
8(d);
(iv) Xxxxxxx shall be subject to the terms and
provisions of Section 9(a) with regard to survival of representations
and warranties and to the terms, provisions and conditions of Section
9(b) as an indemnifying party and Section 9(c) as an indemnified party;
(v) Xxxxxxx shall be subject to terms, provisions and
conditions of Section 10(a) as an indemnifying party, Section 10(b) as
an indemnified party, and the procedure set forth in Section 10(c); and
(vi) Xxxxxxx shall be subject to general terms,
provisions and conditions of Section 11.
2. Miscellaneous. Except as otherwise expressly provided herein, the
Agreement is not amended, modified or affected by this First Amendment. Except
as expressly set forth herein, all of the terms, conditions, covenants,
representations, warranties and all other provisions of the Agreement are herein
ratified and confirmed and shall remain in full force and effect. On and after
the date on which this First Amendment becomes effective, the terms,
"Agreement," "hereof," "herein," "hereunder" and terms of like import, when used
herein or in the Agreement shall, except where the context otherwise requires,
refer to the Agreement, as amended by this First Amendment. This First Amendment
may be executed into one or more counterparts, and it shall not be necessary
that the signatures of all parties hereto be contained on any one counterpart
hereof; each counterpart shall be deemed an original, but all of which together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have set their hands hereunto
effective as of the first date written above.
ZEOTECH INDUSTRIES, INC.
By: /S/ Xx Xxxxxxx, by power of attorney /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
XXXXXXX GOLD GROUP, INC.
By: /S/ Xxxx X. Xxxxxx /S/Xxxx X. Xxxxxxxx, Xx.
Xxxx X. Xxxxxxxx, Xx.
Name Printed: Xxxx X Xxxxxx
Title: Vice President
LS CAPITAL CORPORATION
By: /S/ Xxxx X. Xxxxxx /S/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Name Printed: Xxxx X Xxxxxx
Title: President
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, by power of attorney /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
XXXXXXX GOLD GROUP, INC.
By: /S/ Xxxx X. Xxxxxx /S/Xxxx X. Xxxxxxxx, Xx.
Xxxx X. Xxxxxxxx, Xx.
Name Printed: Xxxx X Xxxxxx
Title: Vice President
LS CAPITAL CORPORATION
By: /S/ Xxxx X. Xxxxxx /S/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Name Printed: Xxxx X Xxxxxx
Title: President
