REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is entered into as of
November , 1996, by and among EUROGAS, INC., a Utah corporation ("EuroGas")
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on the one hand, and on the other hand, KUKUI, INC., a Texas corporation
("KUKUI"), and the Trustees of the Estate of Xxxxxxx Xxxxxx Xxxxxx ("Trustees"),
based on the following:
Premises
A. Two subsidiaries of EuroGas, Pol-Tex Methane, sp z.o.o. and GlobeGas
B.V., entered into a settlement agreement with KUKUI (the "Settlement
Agreement").
B. The Settlement Agreement provides for the issuance of 100,000 shares
(the "EuroGas Common Shares") of common stock, par value $0.001 per share
("EuroGas Common Stock"), of EuroGas to KUKUI, the grant of an option to acquire
up to 2,000,000 shares of EuroGas Common Stock (the "EuroGas Option Shares") to
the Trustees, and the grant of certain registration rights with respect to the
EuroGas Common Shares and the EuroGas Option Shares. Such registration rights
are set forth in this Agreement.
C. It is contemplated that KUKUI and the Trustees may deliver a portion
of the EuroGas Common Stock or the EuroGas Option Shares to the Unsecured
Creditors' Trust of the Bankruptcy Estate of XxXxxxxx Methane Corporation,
Bankruptcy No. 94-42758-H2-11. The rights granted under this Agreement may be
transferred to the Unsecured Creditors' Trust of the Bankruptcy Estate of
XxXxxxxx Methane Corporation, Bankruptcy No. 94-42758-H2-11 pursuant to Section
13 contained herein.
Agreement
NOW, THEREFORE, based on the foregoing premises and in consideration of the
terms and provisions set forth herein, the mutual benefits to be gained by the
performance thereof, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions.
As used herein, the terms set forth below have the following respective
meanings:
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holders" means KUKUI and/or the Trustees and, if applicable, any
transferees of Registrable Securities directly or indirectly (in a chain of
title) from KUKUI and/or the Trustees to whom all or a portion of their rights
under this Agreement have been assigned in accordance with Section 13 hereof.
"Registrable Securities" means the EuroGas Common Shares, the EuroGas
Option Shares, and any other securities issued or issuable with respect to any
such shares by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
reorganization. Any Registrable Securities will cease to be such when (i) a
registration statement covering such Registrable Securities has been declared
effective by the Commission and such Registrable Securities have been disposed
of pursuant to such effective registration statement or (ii) such Registrable
Securities are distributed to the public pursuant to Rule 144 under the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Holder" means a Holder who is selling Registrable Securities
pursuant to a registration statement as contemplated by this Agreement.
Each of the terms set forth below has the meaning set forth in the
provision set forth opposite such term in the following table:
Term Provision
--------------------------------- ------------
Shelf Registration Effective Date Section 2(b)
Shelf Registration Period Section 2(b)
Shelf Registration Statement Section 2(a)
Registration Expenses Section 5
SECTION 2. Shelf Registration.
(a) Prior to or on the date that is 30 days after receipt by EuroGas of
the audited year-end and interim period financial statements of EuroGas and
Danube International Petroleum Company, a Texas corporation recently acquired by
EuroGas, required in order for EuroGas to file a registration statement under
the Securities Act (but in no event later than December 31, 1996), EuroGas will
file with the Commission a "shelf" registration statement on an appropriate form
pursuant to Rule 415 under the Securities Act with respect to all of the
Registrable Securities (the "Shelf Registration Statement").
(b) EuroGas agrees to use its best efforts to cause the Shelf Registration
Statement to be declared effective under the Securities Act as promptly as
practicable after the filing thereof (the "Shelf Registration Effective Date")
and to keep the Shelf Registration Statement continuously effective for a period
ending on the third anniversary of the date on which the EuroGas Common Shares
were issued (the "Shelf Registration Period"). EuroGas further agrees to
supplement or amend the Shelf Registration Statement as promptly as practicable
in order to update from time to time any information with respect to the Holders
or their plan of distribution, if requested by the Holders or any underwriter
for the Holders, and EuroGas agrees to furnish to the Holders copies of any such
supplement or amendment promptly after it has been filed with the Commission.
EuroGas shall be permitted to register shares of EuroGas Common Stock other than
the Registrable Securities pursuant to the Shelf Registration Statement;
provided, however, that the registration and sale of any such shares shall have
no adverse effect on the rights of the Holders hereunder.
SECTION 3. Piggy-Back Registration.
(a) If, at any time prior to the end of the Shelf Registration Period,
EuroGas proposes to file a registration statement under the Securities Act with
respect to an offering for its own account or for the account of any other
person or entity of any class of its equity securities, including any securities
convertible into or exchangeable for any of its equity securities (other than
(i) a registration statement on Form S-4 or S-8 (or any substitute form for
comparable purposes that may be adopted by the Commission) or (ii) a
registration statement filed in connection with an exchange offer or an offering
of securities solely to EuroGas' existing security holders), then EuroGas shall
in each case give written notice of such proposed filing to the Holders of
Registrable Securities as soon as practicable, but in no event later than 30
days prior to the anticipated filing date, and such notice shall offer to such
Holders the opportunity to register such number of Registrable Securities as
each such Holder may request. Upon the written request of a Holder made within
20 days after receipt of such notice by the Holder, EuroGas shall include in any
registration described in the first sentence of this Section 3(a) all
Registrable Securities requested by such Holder to be included therein, subject
to the provisions of Section 3(b) hereof.
(b) In the case of a proposed underwritten offering, EuroGas shall use its
best efforts to cause the managing underwriter or underwriters of such offering
to permit all Registrable Securities requested by a Holder to be included in the
registration statement for such offering to be included on the same terms and
conditions as any similar securities of EuroGas included therein. Notwith-
standing the foregoing, if the managing underwriter or underwriters of such
offering determine in writing that the success of the offering would be
materially and adversely affected by inclusion of the Registrable Securities
requested to be included, then the securities offered for the account of the
Holders in such offering shall be reduced to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount
recommended by such managing underwriter or underwriters; provided, however,
that the proportion by which the amount of Registrable Securities intended to be
offered by the Holders is reduced shall not exceed the proportion by which the
amount of securities intended to be offered by any person or entity other than
EuroGas is reduced.
(c) To the extent not inconsistent with applicable law, each Selling
Holder whose securities are included in a registration statement pursuant to
this Section 3 agrees not to effect any public sale or distribution of the
security being registered, including a sale pursuant to Rule 144 under the
Securities Act, during the 15 days prior to and during the 90-day period (or
such shorter period as may be required by the managing underwriter or
underwriters with respect to any officer or director or shareholder of EuroGas)
beginning on, the effective date of a registration statement (except, in each
case, as part of such registration), if and to the extent requested by the
managing underwriter or underwriters for an underwritten public offering.
SECTION 4. Registration Procedures.
(a) If and whenever EuroGas is required to effect the registration of any
Registrable Securities in accordance with this Agreement, EuroGas will as
expeditiously as practicable:
(i) prepare and file with the Commission such amendments and
supplements to any such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act
with respect to the disposition of the securities covered thereby for
(A) in the case of a registration pursuant to Section 2, the Shelf
Registration Period or (B) in the case of a registration pursuant to
Section 3, a period of at least nine months after the applicable
registration statement becomes effective (unless all of the Registrable
Securities registered thereunder have been sold or disposed of prior to the
expiration of said nine-month period);
(ii) furnish to each Selling Holder such number of copies of such
registration statement and of each amendment and supplement thereto (in
each case including all exhibits thereto) and of the prospectus included in
such registration statement (including each preliminary prospectus) and any
prospectus filed pursuant to Rule 424 under the Securities Act and of such
other documents as each Selling Holder may reasonably request in order to
facilitate the disposition of its Registrable Securities;
(iii) use commercially reasonable efforts to register or qualify
the Registrable Securities covered by such registration statement under the
securities acts or blue sky laws of such jurisdictions as the Selling
Holders shall reasonably request, keep such registration or qualification
in effect for so long as such registration statement remains in effect and
do any and all other acts and things which may be reasonably necessary or
appropriate to enable the Selling Holders to dispose of such Registrable
Securities in such jurisdictions (provided, however, that EuroGas will not
be required to (a) qualify to do business as a foreign corporation in any
jurisdiction where it would not otherwise be required to be so qualified,
(b) consent to general service of process in any jurisdiction; or (c)
subject itself to general taxation in any such jurisdiction where it would
not otherwise be subject to such taxation);
(iv) use commercially reasonable efforts to cause the Registrable
Securities to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the Selling Holders
to dispose of such Registrable Securities;
(v) notify each Selling Holder promptly (A) when such registration
statement and any post-effective amendment thereto has become effective
under the Securities Act, (B) of any request by the Commission for an
amendment or supplement to such registration statement or the prospectus
included therein or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation of any proceedings for that
purpose, (D) of the receipt of any notification with respect to the
suspension of the registration or qualification of any Registrable
Securities in any jurisdiction in which they are registered or qualified or
the initiation of any proceedings for that purpose and (E) of the
occurrence of any event as a result of which the prospectus included in
such registration statement or any document incorporated or deemed to be
incorporated by reference therein includes an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(vi) use commercially reasonable efforts to obtain the withdrawal at
the earliest possible moment of any stop order suspending the effectiveness
of such registration statement and the lifting at the earliest possible
moment of any suspension of the registration or qualification of the
Registrable Securities in any jurisdiction in which they are registered or
qualified;
(vii) upon the occurrence of any event of specified in clause (E)
of subparagraph (v) above, promptly prepare and furnish to each Selling
Holder an amendment or supplement to the prospectus included in such
registration statement so that, as thereafter delivered to the purchasers
of the Registrable Securities, such prospectus and any document
incorporated or deemed to be incorporated therein by reference will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(viii) otherwise use commercially reasonable efforts to comply with
all applicable rules and regulations of the Commission, and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering a period of 12 months after the effective date of such
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act;
(ix) grant to the Selling Holders and their respective counsel and
accountants the opportunity to participate in the preparation of such
registration statement and any amendment thereof or supplement thereto, and
grant to a representative jointly appointed by all Selling Holders and
their counsel such access to EuroGas' books and records and such
opportunities to discuss the business of EuroGas with its officers and
independent public accountants as shall be necessary, in the judgment of
the Selling Holders based upon the advice of their counsel, to conduct a
reasonable investigation within the meaning of the Securities Act; and
(x) use its best efforts to cause all Registrable Securities covered
by such registration statement to be listed on any securities exchange on
which any securities of such class are then listed.
(b) If and whenever EuroGas is required to effect the registration of any
Registrable Securities in accordance with this Agreement, each Holder agrees as
follows:
(i) to cooperate with EuroGas by providing in writing such
information as EuroGas shall reasonably request in order to comply with the
applicable provisions of the Securities Act and applicable state securities
laws in connection with the disposition of Registrable Securities by such
Holder as described herein, including information regarding the identity of
the Holder effecting such disposition and the proposed method of effecting
such disposition;
(ii) In the case of an underwritten offering, enter into any agreement
(including underwriting agreements in customary form) with any underwriter
engaged to effect the distribution of the Registrable Securities; provided,
however, that the Selling Holders shall not be required to agree to any
terms or conditions more stringent than those agreed to by all other
participants in the registration;
(iii) On receipt of any notice from EuroGas of a happening of an
event described in clause (E) of subparagraph (a)(v) above, to promptly
discontinue disposition of securities pursuant to the registration
statement until such Holder is advised in writing by EuroGas that the use
of the prospectus can be resumed and has received copies of any amended or
supplemental material; provided, however, that in no event shall the
Selling Holders be required to discontinue sales pursuant to this
subparagraph (b)(iii) for a period of more than 30 consecutive days or for
more than 60 days during any calendar year;
(iv) At the end of any period during with EuroGas is required to keep
the registration statement effective, to discontinue sales of securities
pursuant to such registration statement on notice from EuroGas of its
intent to remove such securities from registration and to promptly provide
EuroGas with written confirmation of the number of securities held by the
Holder that remain unsold; and
(v) To conduct any sales pursuant to the registration statement in
accordance with the description set forth in the plan of distribution
contained in the registration statement and the limitations and conditions
imposed upon the Selling Holders by any applicable state securities laws.
SECTION 5. Registration Expenses. All expenses incident to the
performance of or compliance with this Agreement by EuroGas, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registrable
Securities), rating agency fees, printing expenses, messenger and delivery
expenses, internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the fees and expenses incurred in connection with the listing of the securities
to be registered on each securities exchange on which similar securities issued
by EuroGas are then listed, and fees and disbursements of counsel for EuroGas
and its independent certified public accountants (including the expenses of any
special audit or comfort letters required by or incident to such performance),
securities acts liability insurance (if EuroGas elects to obtain such
insurance), the reasonable fees and expenses of any special experts retained by
EuroGas in connection with such registration, and fees and expenses of other
persons retained by EuroGas, in connection with each registration hereunder (but
not including any underwriting discounts or commissions or brokerage fees or
transfer taxes attributable to the sale of Registrable Securities or the fees
and expenses of any counsel, accountant or other representative retained by the
Selling Holders) (collectively, "Registration Expenses") shall be borne by
EuroGas.
SECTION 6. Indemnification; Contribution.
(a) Indemnification by EuroGas. EuroGas agrees to indemnify and hold
harmless each Selling Holder, its officers, directors, partners and agents and
each person, if any, who controls a Selling Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages (whether in contract, tort or otherwise),
liabilities and expenses (including reasonable costs of investigation)
whatsoever (as incurred or suffered) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus relating to the Registrable Securities or
in any amendment or supplement thereto or in any preliminary prospectus, or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of, or are based upon, any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to EuroGas by such Selling Holder expressly for use therein. EuroGas
also agrees to indemnify any underwriters of the Registrable Securities, their
officers, partners and directors and each person who controls such underwriters,
on substantially the same basis as that of the indemnification of the Selling
Holder provided in this Section 6 or such other indemnification customarily
obtained by underwriters at the time of offering.
(b) Conduct of Indemnification Proceedings. If any action or proceeding
(including any governmental investigation) shall be brought or asserted against
a Selling Holder (or its officers, directors, partners or agents) or any person
controlling a Selling Holder in respect of which indemnity may be sought from
EuroGas, EuroGas shall assume the defense thereof, including the employment of
counsel selected by EuroGas in its reasonable discretion, and shall assume the
payment of all expenses. The Selling Holder or any controlling person of the
Selling Holder shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the Selling Holder or such controlling
person unless (i) EuroGas has agreed in writing to pay such fees and expenses or
(ii) the named parties to any such action or proceeding (including any impleaded
parties) include both the Selling Holder or such controlling person and EuroGas,
and the Selling Holder or such controlling person shall have been advised by
counsel that there may be one or more legal defenses available to such Selling
Holder or such controlling person which are different from or additional to
those available to EuroGas (in which case, if the Selling Holder or such
controlling person notifies EuroGas in writing that it elects to employ separate
counsel at the expense of EuroGas, EuroGas shall not have the right to assume
the defense of such action or proceeding on behalf of the Selling Holder or such
controlling person). EuroGas shall not be liable for any settlement of any such
action or proceeding effected without its written consent, but if settled with
its written consent, or if there be a final judgment for the plaintiff or
claimant in any such action or proceeding, EuroGas agrees to indemnify and hold
harmless the Selling Holder and such controlling person from and against any
loss or liability (to the extent stated above) by reason of such settlement or
judgment.
(c) Indemnification by Selling Holder. Each Selling Holder agrees to
indemnify and hold harmless EuroGas, its directors and officers and each person,
if any, who controls EuroGas within the meaning of either Section 15 of the Act
or Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from EuroGas to the Selling Holder, but only with respect to information
furnished to EuroGas in writing by such Selling Holder expressly for use in any
registration statement or prospectus relating to the Registrable Securities, or
any amendment or supplement thereto, or any preliminary prospectus. In case any
action or proceeding shall be brought against EuroGas or its directors or
officers, or any such controlling person, in respect of which indemnity may be
sought against the Selling Holder, the Selling Holder shall have the rights and
duties given to EuroGas, and EuroGas or its directors or officers or such
controlling person shall have the rights and duties given to the Selling Holder,
by the preceding paragraph. Notwithstanding the foregoing, the liability of the
Selling Holder pursuant to this Section 6(c) shall not exceed the amount by
which the total price at which the Registrable Securities of the Selling Holder
were offered to the public exceeds the amount the Selling Holder has otherwise
been required to pay by reason of this Section 6.
(d) Contribution. If the indemnification provided for in this Section 6
is unavailable to EuroGas, the Selling Holders or the underwriters in respect of
any losses, claims, damages, liabilities or judgments referred to herein, then
each such indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and judgments (i) as between
EuroGas and the Selling Holders on the one hand and the underwriters on the
other, in such proportion as is appropriate to reflect the relative benefits
received by EuroGas and the Selling Holders on the one hand and the underwriters
on the other from the offering of the Registrable Securities, or if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of EuroGas and the Selling Holders on the one hand and of the underwriters
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations and (ii) as between EuroGas, on the one hand,
and the Selling Holders on the other, in such proportion as is appropriate to
reflect the relative fault of EuroGas and of the Selling Holders in connection
with such statements or omissions, as well as any other relevant equitable
considerations. The relative benefits received by EuroGas and the Selling
Holders on the one hand and the underwriters on the other shall be deemed to be
in the same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by EuroGas and the Selling Holders bear to the total underwriting discounts and
commissions received by the underwriters, in each case as set forth in the table
on the cover page of the prospectus. The relative fault of EuroGas on the one
hand and of the Selling Holders on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The parties agree that it would not be just and equitable if contribution
pursuant to this Section 6(d) were determined by pro rata allocation (even if
the Selling Holders were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities,
or judgments referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), the Selling Holders shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of the Selling Holders were offered to the public
exceeds the amount of any damages which the Selling Holders have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
SECTION 7. Participation in Underwritten Registrations. No person may
participate in any underwritten registration hereunder unless such person agrees
to sell its securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements.
SECTION 8. Rule 144 and Reports. At all times from and after the date
of the filing of the Shelf Registration Statement and prior to the expiration of
the period during which EuroGas is required to keep such registration statement
effective in accordance with Section 2(b) hereof, EuroGas covenants that it will
file any reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the Commission thereunder
and that it will take such other action as any Holder of Registrable Securities
may reasonably request, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the Commission. Upon
request of any Holder, EuroGas will deliver to such Holder a written statement
as to whether it has complied with such requirements.
SECTION 9. Notices. All notices and other communications hereunder shall
be in writing and shall be delivered in person, by United States mail (first
class and with postage prepaid thereon) or by cable, telex or facsimile
transmission to the parties at the following addresses (or at such other address
as any party shall have furnished to the others in accordance with the terms of
this Section 9):
If to EuroGas, to: EuroGas, Inc.
Attention: Xxxx Xxxxxxxxxxxx, Vice-President
000 Xxxx 0000 Xxxxx, #000X
Xxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxx, Esq.
Xxxxx, Xxxxx & Xxxxxxx, L.L.C.
00 Xxxx Xxxxxxxx, Xxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Facsimile Transmission: (000) 000-0000
Confirmation: (000) 000-0000
If to the Trustees: Kamehameha Schools Xxxxxx Estate
c/o Xxxxxx X.X. Xxxx, General Counsel
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
With a copy to: Xxx X. Xxxxxx III
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
If to KUKUI: KUKUI, INC.
Attention: Xxxxxx X. Xxxx, President
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
With a copy to: Xxx X. Xxxxxx III
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
if to any other Holder, to such address as such Holder provides to EuroGas or,
if no such address is provided, to the address of such Holder reflected in the
stock transfer records of EuroGas.
All notices and other communications hereunder that are addressed as provided in
or pursuant to this Section 9 shall be deemed duly and validly given (i) if
delivered in person, upon delivery, (ii) if delivered by United States mail
(first class and with postage paid thereon), 72 hours after being placed in a
depository of the United States mails and (iii) if delivered by cable, telex or
facsimile transmission, upon transmission thereof and receipt of the appropriate
answer back.
SECTION 10. Conflicting Agreements. EuroGas agrees that it will not
grant any rights of registration under the Securities Act relating to its
capital stock or other equity securities to any person or entity other than
pursuant to this Agreement, unless the rights so granted do not limit or
restrict in any manner the rights of the Holders granted pursuant to this
Agreement (except as expressly provided in Section 3(b) hereof).
SECTION 11. Amendment; Waivers. The provisions of this Agreement may be
amended only by a written instrument executed by each of the parties hereto, and
compliance with any provision hereof may be waived only by a written instrument
executed by each party entitled to the benefits of the same. No failure to
exercise any right, power or privilege granted hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege granted hereunder.
SECTION 12. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, whether written or oral,
between the parties with respect thereto.
SECTION 13. Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. The rights of a Holder under this Agreement may be
assigned without the consent of EuroGas to any person or entity who acquires any
Registrable Securities directly or indirectly (in a chain of title) from such
Holder if (i) such Holder executes a written instrument which expressly provides
that such person or entity shall succeed to all or a portion of the rights of
such Holder hereunder and (ii) such person or entity agrees to be bound by all
of the terms and conditions hereof.
SECTION 14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Utah (without regard to
any conflicts of law principles that would require the application of the laws
of any other jurisdiction).
SECTION 15. Rights Cumulative. The rights of the parties under this
Agreement are cumulative and shall not preclude the assertion by any party of
any rights now or hereafter available to it under any other agreement, by law or
otherwise.
SECTION 16. Severability. If any provision contained herein is held to
be invalid, illegal or unenforceable for any reason, the invalidity, illegality
or unenforceability of such provision shall in no way affect any other provision
hereof.
SECTION 17. Specific Performance. The parties hereto recognize that the
obligations imposed on them in this Agreement are special, unique and of
extraordinary character, and that irreparable damage would occur in the event of
a breach of any of the provisions hereof. Accordingly, the parties agree that
each of them shall be entitled to seek injunctive relief to prevent breaches of
this Agreement and to obtain specific enforcement of the provisions hereof, in
addition to any other remedy now or hereafter available at law or in equity or
otherwise.
SECTION 18. Headings. The headings contained in this Agreement are for
convenience of reference only and shall in no way define, limit or extend the
scope or intent of any provisions set forth herein.
SECTION 19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
EuroGas:
EUROGAS, INC.
By /s/ Xxxx Xxxxxxxxxxxx
Xxxx Xxxxxxxxxxxx, Secretary
Trustees:
TRUSTEES OF THE ESTATE OF
XXXXXXX XXXXXX XXXXXX
By
Name:
Title:
By
Name:
Title:
By
Name:
Title:
KUKUI:
KUKUI, INC.
By /s/ Xxxxxx Xxxx
