DATED NOVEMBER 29, 2005
(1) NEWGEN TECHNOLOGIES INC
(2) AG GLOBAL PARTNERS LIMITED
(3) NEWGEN FUEL TECHNOLOGIES LIMITED
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JOINT VENTURE AGREEMENT
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TABLE OF CONTENTS
Clause Headings Page
1. DEFINITIONS AND INTERPRETATION........................................1
2. SUBSCRIPTION AND PURCHASE OF SHARES...................................5
3. THE BUSINESS..........................................................6
4. THE TERRITORIES.......................................................7
5. GENERAL UNDERTAKINGS..................................................8
6. BUDGETS AND ACCOUNTS.................................................15
7. STRATEGIC CONSULTATION...............................................18
8. TECHNICAL SUPPORT....................................................18
9. FUNDING OF THE COMPANY...............................................18
10. ALLOCATIONS AND DISTRIBUTIONS........................................18
11. PROTECTION OF THE BUSINESS...........................................19
12. REPRESENTATIONS AND WARRANTIES ......................................20
13. DEFAULT .............................................................21
14. TERMINATION .........................................................22
15. COSTS AND EXPENSES...................................................22
16. CONFIDENTIALITY AND ANNOUNCEMENTS....................................22
17. MISCELLANEOUS PROVISIONS.............................................24
18. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS...................26
SCHEDULE 1 Shareholders
SCHEDULE 2 Initial Budget
AGREED DRAFTS
Agreed Draft 'A' New Articles
Agreed Draft 'B' Completion Board Minutes
Agreed Draft 'C' Technology License
Agreed Draft 'D' Non-Executive Director Service Agreement
Agreed Draft 'E' Managing Director Service Agreement
Agreed Draft 'F' Executive Director Service Agreement
Agreed Draft 'G' Short-term Loan Agreement
THIS AGREEMENT is made November 29, 2005
BETWEEN:
1. NEWGEN TECHNOLOGIES INC. ("NewGen") a Nevada corporation having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇;
2. AG GLOBAL PARTNERS LIMITED having its principal place of business at ▇▇▇▇
▇▇▇▇▇, ▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ("AG Partners")
3. NEWGEN FUEL TECHNOLOGIES LIMITED ("Company") having its principal place of
business at c/o KSB Law, ▇▇▇▇ ▇▇▇▇▇, ▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ .
WHEREAS:
(A) The Company was incorporated in England on 17 November, 2005, under the
Companies ▇▇▇ ▇▇▇▇ with registered number 5626514 and is a private company
limited by shares.
(B) The Company has not traded and has no liabilities.
(C) The authorised share capital of the Company is (pound)100 divided into
1000 shares of (pound)0.10 each, 500 of which shares are in issue, fully
paid, and no person has any right to call for the issue or allotment of
any shares or other securities in the Company.
(D) Immediately prior to completion of this Agreement ▇▇ ▇. ▇▇▇▇▇▇ and ▇▇ ▇.
▇▇▇▇▇▇▇▇▇ were the only directors of the Company and Mr A. Greystoke was
its Secretary.
(E) NewGen wishes to acquire 500 Shares in the Company for the purpose of
carrying on in joint venture the business of exploiting certain NewGen
technology in the field of conventional and biofuel blends, and the sale
and distribution of such products.
(F) NewGen has accordingly agreed to subscribe for Shares in the Company and
the Shareholders and the Company have agreed to make provision for the
management and administration of its affairs on the terms and conditions
set out in this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement, the following words and expressions shall have the
following meanings:
"Act" means the Companies ▇▇▇ ▇▇▇▇ (as amended by the Companies Act 1989);
"Agreed Accounting Practices and Policies" means those accounting
practices and policies which comply with Generally Accepted Accounting
Principles in the United States (US GAAP) and International Financial
Reporting Standards (IFRS), which are to be applied in the preparation of
the Company's accounts, as such may be amended from time to time in
accordance with this Agreement;
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"Agreed Draft" means a draft in a form agreed between the parties bearing
an identifying letter and initialled by the parties for the purpose of
identification;
"Article" means a reference to a regulation set out in the New Articles;
"Auditors" means the Company auditors as appointed by Newgen in accordance
with this Agreement;
"Budget" means, in respect of a financial year, the budget prepared by the
Company and furnished pursuant to Clause 6, and reference to an "approved"
Budget is, for any financial year, a reference to such Budget as approved
by the Shareholders pursuant to that Clause;
"Business" means the business, as defined in Sub-Clause 3.1, to be carried
on by the Company (including through one or more Subsidiaries) in
accordance with the provisions of this Agreement;
"Business Day" means a day (excluding Saturdays) on which banks are open
for business in the City of London;
"Completion" means the completion of the subscription to Shares pursuant
to Clause 2 and the due compliance with the obligations in Clause 2;
"Connected Person" means any person with which any relevant person is
connected (as determined in accordance with the provisions of Section 839
of the Income and Corporation Taxes Act 1988);
"Director" means a director of the Company appointed pursuant to Article 5
of the New Articles;
"Encumbrance" means any mortgage, pledge, lien, charge, assignment,
hypothecation, or other agreement or arrangement which has the same or a
similar effect to the granting of security;
"Financial Year" means each period for which the Company is required to
produce accounts in accordance with the Act;
"Hazardous Material" means any pollutant, contaminant, toxic substance,
hazardous waste, hazardous substance, chemical substance or mixture,
pesticide, pollutant, contaminant, toxic chemical, petroleum product or
byproduct, asbestos, polychlorinated biphenyl, noise or radiation or any
other as defined in or pursuant to any law, regulation, rule or ordinance
applicable to the Company or any of its Subsidiaries, whether existing as
of the Completion, previously in force, or subsequently enacted.
"Intellectual Property" means patents and applications, registered
designs, unregistered design rights, copyrights, logos, rights in trade
marks and service marks whether registered or not, goodwill and rights in
confidential information and know-how and any associated or similar rights
in any part of the world (including, in all cases, applications and rights
to apply therefor);
"License Agreement" means the agreement between NewGen and the Company in
the form of the Agreed Draft pursuant to which NewGen will licence certain
proprietary technology to the Company for use and exploitation in
connection with the Company's conduct of the Business in the Territories.
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"Material Adverse Effect" means, with respect to any Person, any material
adverse change in the business, operations, assets (including levels of
working capital and components thereof), condition (financial or
otherwise), prospects, operating results, Liabilities or relations with
material customers, material suppliers or key employees of such Person or
any material casualty loss or damage to the assets of such Person, whether
or not covered by insurance.
"New Articles" means the Articles of Association to be adopted by the
Company at Completion in the form of Agreed Draft "A";
"Permit" means all permits, licenses, authorizations, registrations,
franchises, approvals, certificates, variances and similar rights
obtained, or required to be obtained, from any Person.
"Person" shall be construed broadly and shall include an individual, a
partnership, a corporation, an association, a joint stock company, a
limited liability company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or
political subdivision thereof.
"Proceeding" means any claim, action, suit, proceeding, arbitration,
complaint, charge, hearing, inquiry or investigation (including a tax
audit), whether administrative or in mediation or arbitration, before or
by any person.
"Release" means any release, spill, emission, leaking, injection, deposit,
disposal, discharge, dispersal, leaching or migration into the atmosphere,
or on, into, under or from the soil, surface water, ground water or
property.
"Requisite Regulatory Approvals" means all Permits, approvals, filings,
consents and waivers required to be obtained from or made with any Person,
and all waiting periods required to expire, before the consummation of the
transactions contemplated by this Agreement, as applicable, under all
applicable laws of any jurisdiction, domestic or foreign, having
jurisdiction over the transactions contemplated by this Agreement.
"Resolutions" means the resolutions of the Company in the form of Agreed
Draft "B" to be passed at an extraordinary general meeting of the Company
in accordance with Sub-Clause 2.1.
"Sale of the Company" means (i) a sale of the Company (or any Subsidiary)
or substantially all of its (or their) shares of capital stock or assets
or otherwise, whether by way of merger, consolidation, recapitalization,
sale of stock or assets, or otherwise, or (ii) any transaction where the
Shareholders holding outstanding Shares representing all of the voting
rights of the Company prior to such transaction shall, immediately
following such transaction, hold securities representing less than 50% of
such voting rights.
"Shareholder" means each person or entity listed in Schedule 1;
"Shares" means, collectively, the 1000 shares of (pound)0.10 each in the
capital of the Company, including the 500 shares currently held by AG
Partners and the 500 shares of (pound)0.10 each in the capital of the
Company to be subscribed for pursuant to this Agreement and any further
shares in the capital of the Company issued by the Company from time to
time during the currency, and pursuant to the terms and conditions, of
this Agreement;
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"Short Term Loan Agreement" means the agreement in the form of the Agreed
Draft to be entered into between NewGen and the Company for the provision
of short term finance by NewGen to the Company;
"Subsidiary" of any Person means any corporation, association,
partnership, limited liability company, joint venture vehicle or other
business entity, whether now existing or hereafter formed or created, of
which more than 20% of the total voting power of equity interests
(including membership and partnership interests) entitled (without regard
to the occurrence of any contingency) to vote in the election of
directors, representatives, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by: (1) such Person, (2) such
Person and one or more Subsidiaries of such Person, or (3) one or more
Subsidiaries of such Person; and
"Territories" means those countries and geographic areas specified in
Clause 4.1.
Interpretation
In this Agreement, save where the context otherwise requires:
1.1.1 The singular includes the plural and vice versa and reference to any
gender includes a reference to all other genders;
1.1.2 Headings and the use of bold typeface shall be ignored;
1.1.3 References to any enactment shall include references to such enactment as
it may, after the date of this Agreement, from time to time be amended,
supplemented or re-enacted;
1.1.4 A reference to a Clause, Sub-Clause, Paragraph, Sub-Paragraph or Schedule
is, unless indicated to the contrary, a reference to a Clause, Sub-Clause,
Paragraph or Schedule of this Agreement;
1.1.5 A reference to a balance sheet or profit and loss account includes a
reference to any note forming part of it;
1.1.6 Unless otherwise expressly provided, expressions defined in the Companies
Act have the meanings there given to them;
1.1.7 A reference to a person includes a reference to a firm, a body corporate,
an unincorporated association or to a person's executors or
administrators;
1.1.8 A reference to a "party" is to a party to this Agreement for the time
being and a reference to the "parties" is, unless otherwise stated to the
contrary, a reference to all parties to this Agreement for the time being;
and
1.1.9 References to writing shall include any modes of reproducing words in a
legible and non-transitory form.
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2. SUBSCRIPTION AND PURCHASE OF SHARES
2.1 Subscriptions
NewGen shall subscribe for 500 Shares for cash at par.
2.2 Allotment, Issue and Transfer
The Shares to be allotted and issued in accordance with Sub-Clause 2.1
shall be allotted and issued fully paid at Completion free from all
Encumbrances and with all the rights attaching to them pursuant to the New
Articles.
2.3 Waiver of Pre-Emption
The Shareholders and the Company hereby waive any rights or restrictions
which may exist in the New Articles or otherwise which might prevent the
allotment of the Shares to NewGen pursuant to Sub-Clause 2.1.
2.4 Application
By signing and exchanging this Agreement NewGen:
2.4.1 applies for and accepts with effect from Completion the Shares
subscribed for by it pursuant to Clause 2.1, subject to the
Memorandum of Association of the Company and the New Articles;
2.4.2 authorises the Company to place its name upon the register of
members at Completion in respect of all such Shares; and
2.4.3 requests that one share certificate for all such Shares be issued to
it.
2.5 Arrangements for Completion
Completion shall take place at the offices of KSB Law, ▇▇▇▇ ▇▇▇▇▇, ▇-▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ immediately following the signing of this
Agreement or at such other time and place as the parties may agree.
2.6 Obligations at Completion
At Completion:
2.6.1 the statutory and minute books and share certificate books of the
Company will be made available for inspection by each party;
2.6.2 an extraordinary general meeting of the Company shall be duly
convened and held at which the Resolution(s) shall be passed;
2.6.3 NewGen shall pay to the Company for immediate value in London in
cleared funds the subscription monies for the Shares agreed to be
subscribed and accepted by it;
2.6.4 NewGen and the Company shall enter into the License Agreement for
the Territories; and
2.6.5 NewGen and the Company shall enter into the Short Term Loan
Agreement in the agreed form.
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2.7 Board Meeting
The following business will be transacted at a meeting of the Board of
Directors of the Company held at Completion:
2.7.1 The Company will allot and issue the Shares subscribed for by NewGen
referenced in Sub-Clause 2.1, shall deliver to NewGen a share
certificate for the Shares to which it is entitled and shall enter
NewGen in the register of members of the Company in respect of such
Shares;
2.7.2 ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Mr ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall be appointed Directors
of the Company, Mr ▇▇▇▇ ▇▇▇▇ will be appointed Managing Director of
the Company and a Director, such that the Board of Directors of the
Company shall consist of Messrs. Dawson, Greystoke, ▇▇▇▇▇, ▇▇▇▇ and
▇▇▇▇▇▇▇▇▇▇; ▇▇ ▇▇▇▇▇▇▇▇▇▇ and Mr ▇▇▇▇▇ ▇▇▇ be substituted with other
representatives of NewGen should NewGen desire. ▇▇ ▇▇▇▇ may be
substituted with a newly-hired Managing Director after a period of
training and transition, subject to approval by the Shareholders.
2.7.3 Mr Greystoke shall be appointed Secretary of the company;
2.7.4 The registered office of the Company shall be confirmed as ▇▇▇▇
▇▇▇▇▇, ▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇;
2.7.5 NewGen shall appoint the auditors of the Company;
2.7.6 The Company shall confirm the adoption of December 31 of each year
as its accounting reference date;
2.7.7 The Company shall adopt the Agreed Accounting Practices and
Policies;
2.7.8 The Company shall appoint Royal Bank of Scotland plc as its bankers
in accordance with the terms of the mandate produced at the meeting;
2.7.9 The Company shall approve and execute each of the Service
Agreements;
2.7.10 The Company shall approve and execute the License Agreement; and,
2.7.11 The Company shall enter the Short term Loan Agreement.
3. THE BUSINESS
3.1 Nature of Business
3.1.1 The business of the Company shall comprise the exploitation of all
NewGen technology in the field of fuel technology, including: (i)
bio-fuels, including biodiesel and ethanol-based fuels and other
"alternative" fuels, (ii) conventional fuels, (iii) fuel additives
and technology and the sale and distribution of such products and
(iv) the manufacture and distribution of biodiesel and ethanol and
any alternative fuel (the "Business") in the Territories
3.1.2 Each of the Shareholders undertakes to each of the other
Shareholders to use all reasonable endeavours to promote the
interests of the Company in connection with the Business.
8
3.2 Undertakings with regard to Conduct of Business
3.2.1 Each of the Shareholders undertakes to each of the other
Shareholders:
(A) to exercise its respective rights and powers under this
Agreement and as a holder of Shares to ensure, so far as it
lawfully can, that the provisions of this Agreement are
complied with; and
(B) to procure, so far as it is able to do so, that any director
appointed by it shall so act and vote in relation to the
affairs of the Company (subject always to the fiduciary duties
of such Directors to the Company) to ensure that the Business
and all the affairs of the Company are carried on in a proper
manner and bona fide in the best interests of the Company.
(C) A reference to a meeting of the Board of Directors shall mean
a meeting of the Board of Directors in which a quorum is
present. For the purposes of all actions to be taken or
approved by the Board of Directors, at least one director or
officer of AG Partners and at least one director or officer of
NewGen shall be necessary to constitute a quorum for the
transaction of business.
3.2.2 The Company shall comply with the requirements and standards
relating to the conduct of the Business and of its affairs set out
in Sub-Clause 3.2.1(B).
4. THE TERRITORIES
4.1 The Company has the exclusive right to carry out the Business in the
countries and regions set out below (the "Territories"):
- Europe (excluding Germany)
- Scandinavia and the Nordic Region
- The Middle East, Pakistan and India
- The ASEAN region (Indonesia, Malaysia, Philippines, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇. Lao People's Democratic Republic,
Burma/Myanmar and Cambodia)
- Australia
and will, by virtue of the License Agreement, receive an exclusive license
to use the technology in the Territories, in return for payment of the
royalties set out in the License Agreement.
4.2 If NewGen or any of the other Shareholders identifies an opportunity in
the Territories, it will notify the Company of such an opportunity and the
opportunity will be evaluated by the Company. If the opportunity is
progressed, it will be progressed by and will take place within the ambit
of the Company
4.3 The Territories can be expanded following the demonstration of attainment
of performance objectives in the Territories as agreed from time-to-time
by the Shareholders..
9
5. GENERAL UNDERTAKINGS
5.1 Undertakings of the Company
The Company undertakes to each of the Shareholders that:
5.1.1 Compliance with Agreement
It will duly and punctually perform, enforce and comply with all its
rights and obligations pursuant to this Agreement, and the
Memorandum of Association of the Company and the New Articles.
5.1.2 Information
Each of the Shareholders shall be entitled to examine the books and
accounts of the Company and shall be supplied with all information,
including copies of all published accounts, directors' reports and
notices of meetings of the Company and all other circulars and
notices issued or given to members of or those dealing with the
Company relating to the Business or otherwise to the affairs and
financial or other position of the Company. The Shareholders and the
Company agree that, for this purpose, the Directors shall be
entitled to pass any information relating to the Company, its
Business or affairs to any Shareholder, and neither the Shareholder
nor the Company shall raise any objection to such passing of
information nor allege any breach of any duty of confidence to the
Company as a result of such action.
5.1.3 Audits and Review
Any Shareholder may from time to time require that (at its own cost)
an audit or review of the Business and any other affairs of the
Company is carried out, and shall in such case be entitled to
designate a person to carry out such audit or review on its behalf.
Such person (which may, but need not be, the Shareholder itself, the
Auditors or an adviser, consultant or contractor of the Shareholder)
shall be entitled (subject to the provisions of Clause 13 ):
(A) to visit and inspect any premises of the Company and to
discuss the affairs, finances and accounts of the Company with
its officers and employees; and
(B) to inspect and request and to copy and to retain copies of any
books, records or other documents relating to the Business or
any other affairs of the Company
and the Company shall afford such access and co-operation as may be
reasonable in the circumstances to facilitate the carrying out of
such audit or review.
5.1.4 Notice Requirements
From and after the date of this Agreement:
(A) The Company shall provide written notice to the Shareholders
promptly (in any event within 10 days) after it shall become aware
of the occurrence of any of the following:
(i) the commencement of any Proceeding or labor dispute by any
Person against or affecting the Company or any of its
Subsidiaries, which, if determined adversely to the Company or
any of its Subsidiaries, might reasonably be expected to have
a Material Adverse Effect on the Company or any of its
Subsidiaries;
10
(ii) any default under any indebtedness of the Company or any of
its Subsidiaries which entitles the lenders thereunder to
accelerate the obligations of such borrower; and
(iii) the receipt by the Company or any of its Subsidiaries, of (A)
any notice or claim to the effect that the Company or any of
its Subsidiaries is or may be liable to any Person as a result
of the Release by the Company, any of its Subsidiaries or any
other Person of any Hazardous Material into the environment
and (B) any notice alleging any violation of any
Environmental, Health and Safety Law by the Company or any of
its Subsidiaries if, in either case, such notice or claim
relates to an event which could reasonably be expected to
subject the Company or any of its Subsidiaries to Liabilities
in excess of (pound)45,000.
(B) Upon request of the any Shareholder, the Company shall, and shall
use its best efforts to cause its Subsidiaries to, provide such
further information (including copies of any pleadings, notices,
correspondence or such other documents) regarding the status of any
of the events set forth under Sub-Clauses (i) - (iii) above, that
the Shareholders deem are reasonably necessary to enable the
Shareholders and their respective advisors, accountants and counsel
to evaluate such matters.
5.1.5 Conduct of Business
From and after the date of this Agreement the Company shall, and shall use its
best efforts to cause each of its Subsidiaries to, take all actions required to
ensure that the Company and each of its Subsidiaries (i) remain duly registered
and qualified to conduct business under the laws of the jurisdiction of its
incorporation and to qualify and remain qualified to conduct business in each
jurisdiction in which the nature of its operations requires it to be so
qualified and (ii) at all times maintain its existence in full force and effect
and preserve and insofar as such matters are within the control of the Company
or its Subsidiaries, keep or cause to be preserved and kept, all rights material
to the Business.
5.1.6 Compliance with Laws
From and after the date of this Agreement, the Company shall, and shall use its
best efforts to cause each of its Subsidiaries to, take all actions required to
ensure that the Company and each of its Subsidiaries:
(A) obtain all Requisite Regulatory Approvals, Permits and
authorizations necessary to conduct the Business;
(B) conduct its operations with respect to the Business in material
compliance with all Laws and restrictive covenants applicable to the
Business; and
(C) not directly or indirectly conduct the Business in, make any
investment in any Person with material business operations in, or
export any intellectual property provided to the Company under the
License Agreement to, any country with which NewGen would be
prohibited from conducting trade, business or export activities
pursuant to any U.S. Law or regulation relating to export controls
or trade sanctions or embargoes ("Prohibited Conduct"). NewGen shall
use reasonable efforts to keep Company up-to-date on the countries
affected by any such prohibition.
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5.1.7 Payment of Obligations
From and after the date of this Agreement, the Company shall, and shall use its
best efforts to cause each of its Subsidiaries to, pay or discharge or cause to
be paid or discharged (i) all taxes imposed upon the Company or any of its
Subsidiaries, or on any of its properties or assets or in respect of any of its
franchises, business, income or property, before any penalty or interest accrues
thereon and (ii) all claims (including, without limitation, claims for labor,
services, materials and supplies) for sums which have become due and payable and
which by law have or may result in any lien or encumbrance upon any of the
property or assets of the Company or any of its Subsidiaries, prior to the time
when any penalty or fine shall be incurred with respect thereto, except in each
case for so long as the Company or its Subsidiaries is contesting any such taxes
claimed by appropriate means.
5.1.8 Maintenance of Property
From and after the date of this Agreement, the Company shall, and shall use its
best efforts to cause each of its Subsidiaries to: (i) take all actions required
to ensure that all property and assets of the Company or any of its Subsidiaries
used in the Business be maintained and kept in adequate condition, repair and
working order and supplied with all necessary equipment and (ii) make all
necessary repairs, renewals, replacements and improvements to such property and
assets as may be necessary to conduct the Business.
5.1.9 Non-competition Agreements
Promptly following the Completion, the Company shall, and shall use its best
efforts to cause its Subsidiaries to, enter into non-competition,
non-solicitation, nondisclosure and invention assignment agreements with all key
employees of the Company or any Subsidiary.
5.1.10 Insurance
The Company shall, and shall use its best efforts to cause its Subsidiaries to,
maintain insurance against hazards and liabilities, such insurance being
comparable in scope and amount to other similarly situated Persons with
operations similar to the Business.
5.1.11 Contributions
From and after the date of this Agreement, the Company shall, and shall use its
best efforts to cause its Subsidiaries to, take all necessary action to ensure
that no Person affiliated with the Company or any of its Subsidiaries (whether
an employee, representative, agent or otherwise) shall make or pay any donation,
contribution, honoraria, gift, or other similar payment (whether or not in cash)
of any amount by or on behalf of the Company or any of its Subsidiaries to any
customer, supplier, labor union or governmental entity or any Person who is
employed by or otherwise represents any customer, supplier, labor union or
governmental entity or any family member of such Person.
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5.2 Undertakings and Agreement of the Shareholders
5.2.1 General Undertaking
Each Shareholder agrees to exercise its voting and any other rights
attaching to the Shares and its rights pursuant to this Agreement
(all such rights being together for the purposes of this Clause
"Shareholder Rights") to procure, so far as it lawfully can, that
the Board of Directors shall determine the general policy of the
Company in the carrying on of the Business in accordance with the
express provisions of this Agreement and of the New Articles.
5.2.2 Matters requiring Approval
The Company shall undertake none of the activities specified below
without the prior approval of a majority of the Directors present at
a meeting duly convened and held in accordance with this Agreement
and the New Articles:
Incurring of Commitments, Liabilities, etc
(A) the incurring of any un-Budgeted capital expenditure by the
Company in excess of (pound)25,000 in respect of any one
transaction, or which exceeds by (pound)10,000 the amount for
that item in the approved Budget;
(B) the entry by the Company into any contract, liability or
commitment which:
(i) is incapable of being terminated within 12 months
without the payment of compensation on termination; or
(ii) could involve expenditure or the incurring of any other
obligation by the Company which in any case exceeds by
(pound)10,000 the amount for that item in the approved
Budget; or
(iii) which relates to an item not included in an approved
Budget;
(C) the creation or giving of any Encumbrance in respect of all or
any part of the undertaking, property or assets of the Company
or the acceptance by the Company of any Encumbrance for its
benefit, in each case, to the extent that such creation,
giving or acceptance is outside the normal course of the
Business;
(D) subject to the provisions of Clause 9, the creation by the
Company of any borrowings or other indebtedness or obligation
in the nature of borrowings (including, without limitation,
obligations pursuant to any debenture, bond, note, loan stock
or other security of the Company and obligations pursuant to
finance leases) except as specifically provided for in the
approved Budget for the relevant year or by way of normal
trade credit;
13
Acquisitions or Disposals
(E) any actual or proposed sale or other disposition of any assets
or rights of the Company or any actual or proposed acquisition
of any assets or rights by the Company in excess of an
aggregate amount of (pound)10,000 in any year except, in any
case, current assets used in the ordinary course of business
of the Company or as approved in any Budget;
(F) any actual or proposed leasing, licensing or parting with or
sharing possession or occupation of any property held or
occupied or which may be acquired by the Company;
(G) without prejudice to Sub-Clause 5.2.2(E) the acquisition,
whether by transfer, subscription or otherwise of any shares
or debentures in any company or corporation;
Manner of Carrying on Business
(H) the entry by the Company into any partnership, joint venture
or other profit sharing agreement;
(I) any material change in the organisation of the Company or the
manner in which it carries on the Business;
(J) the cessation by the Company of the Business or the carrying
on of the Business on any materially reduced scale;
(K) any advance, loan or deposit of money by the Company not in
the ordinary course of the Business;
(L) the ceasing by the Company of the use of the name NewGen Fuel
Technologies Limited;
(M) the initiation, conduct, settlement or abandoning of any
claim, litigation, arbitration or other proceedings involving
the Company or any admission of liability by or on behalf of
the Company except in any case in relation to debt collection
in the ordinary course of the Business not exceeding the sum
of (pound)50,000 for any single claim or a total aggregate
amount of (pound)100,000 in respect of all such claim in any
financial year and including all costs and direct expenses;
(N) the making of any material change (from the point of view of
the relevant employee or category of employees) in the terms
and conditions of employment (contractual or non-contractual)
of any employee or category of employees or the making of any
such change in the terms of employment or the variation in the
scope of duties of or engagement, dismissal or termination of
employment of any employee with annual remuneration in excess
of (pound)50,000;
(O) any material change in the level of remuneration paid to any
of the Directors or the terms or conditions of employment of
any of the Directors;
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(P) the appointment of any attorneys, agents or sub-contractors of
the Company, other than in the ordinary course of the
Company's business;
(Q) the variation of any terms of any of the Company's policies of
insurance or the taking out of any additional or replacement
policies of insurance other than renewals of the Company's
policies on substantially the same terms as those then in
force;
(R) any transaction with any person otherwise than at arms length
and for full value and any transaction with a Shareholder or a
Connected Person of any Shareholder; provided, that the
License Agreement and the Short Term Loan Agreement, including
any amendments or modifications thereto, shall not be subject
to the foregoing restriction;
(S) any proposal for the winding-up or liquidation of the Company;
(T) the proposal of any compromise or arrangement within the
meaning of Section 425 of the Act or any arrangement pursuant
to which the Company is to make a distribution of the kind
described in Section 213 of the Income and Corporation Taxes
▇▇▇ ▇▇▇▇;
(U) The approval of any Budget.
Accounts, Auditors
(V) the changing of the accounting reference date of the Company;
(W) the making of any change to the Agreed Accounting Practices
and Policies except where such change is recommended by the
Auditors as a consequence of a change in generally accepted
accounting practices or policies applicable to companies
carrying on businesses of a similar nature to the Business or
as a consequence of a change in law;
(X) the approval of the statutory accounts of the Company;
(Y) the removal of the Auditors, or the appointment as auditors or
joint auditors of the Company of any firm except the Auditors;
Matters affecting Capital and Corporate Governance
(Z) the issue of any Shares in the Company (by way of bonus,
rights or otherwise) and/or the grant of any option or right
to acquire or call for the issue of the same whether by
conversion, subscription or otherwise;
(AA) the redemption or purchase by the Company of any Share or the
reduction in the share capital, or any uncalled or unpaid
liability in respect thereof, capital redemption reserve or
share premium account of the Company;
(BB) the recommendation of or proposals for any payment of any
dividend or any other distribution of the Company other than
as permitted by this Agreement;
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(CC) the creation or amendment of any employee share scheme and/or
the issue of any options under any such scheme;
Pensions
(DD) the adoption of, or participation by the Company in, any
pension scheme or the amendment of any existing pension scheme
of the Company or, except in compliance with the advice of
actuaries appointed at a quorate meeting of the Directors to
review such scheme, any variation in or cessation of the
contributions made by the Company to any such scheme.
5.2.3 Negative Pledge
Each of the Shareholders undertakes to each of the other
Shareholders and to the Company that it shall not create or permit
to subsist any Encumbrance on or affecting any of the Shares held by
it.
5.2.4 Restriction on Disposal of Shares
Each of the Shareholders undertakes to each of the other
Shareholders and to the Company that it shall not at any time
transfer or otherwise dispose of any Shares or of any interest in or
option over any Shares in any case otherwise than in accordance with
the New Articles and in any event shall not do so within 2 years of
the date of this Agreement; provided, that: (a) an indirect transfer
by NewGen as a result of a sale of substantially all of NewGen's
assets or more than 35% of NewGen's voting securities (b) a transfer
by NewGeen that is a Required Divestiture and (c) the pledge or
other Encumbrance by NewGen of its Shares as security in connection
with a bona fide commercial financing transaction shall not be
within the scope of the foregoing restriction.
5.2.5 Relationship of Agreement and New Articles
If, during the continuance of this Agreement, there shall be any
conflict between the provisions of this Agreement and of the New
Articles, then as between the Shareholders, during such period, the
provisions of this Agreement shall prevail.
5.2.6 No Amendment to New Articles
Nothing contained in this Agreement shall be deemed to constitute an
amendment of the New Articles or of any previous articles of
association of the Company.
5.3 Undertaking of all Parties
5.3.1 Compliance with New Articles
Each of the parties agrees that at all times during the currency of
this Agreement it shall fully and punctually perform, enforce and
comply with all rights and obligations on its part under the New
Articles.
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5.3.2 Effect of Undertaking
It is agreed that it is the intention of each of the parties that
the effect of the undertaking contained in Sub-Clause 5.3.1 is that
each provision of the New Articles shall be enforceable by the
parties inter se and in whatever capacity.
6. BUDGETS AND ACCOUNTS
6.1 Preparation and Approval of Budgets
6.1.1 Initial Budget
The Budget for the period from the date of this Agreement through 31
December 2005 is set out in Schedule 2.
6.1.2 Subsequent Budgets
Not earlier than 90 nor later than 30 Business Days before the
commencement of each financial year, the Company shall produce to
each of the Shareholders a draft Budget for that financial year,
complying with the principles set out in Sub-Clause 6.5.
6.2 Consultation Between Parties
6.2.1 Further Information
Within 10 Business Days following receipt by the Shareholders of
each draft Budget pursuant to Sub-Clause 6.1, any Shareholder shall
be entitled to request such further information as may reasonably be
necessary in order for such Shareholder to reach an informed view as
to the content, reasonableness and prudence of the draft Budget. Any
such request shall be made in writing and be copied to each party.
The Company shall, insofar as it is able to do so, comply with any
such request within 5 Business Days after its receipt and shall copy
its response to each party.
6.2.2 Consultation
Following receipt by the Shareholders of each draft Budget pursuant
to Sub-Clause 6.1 and, as appropriate, any further information
supplied pursuant to Sub-Clause 6.2.1, the parties shall consult
upon the content of such draft Budget and shall each use all
reasonable endeavours to reach agreement as to the contents of such
draft Budget. In the event of failure so to agree within 30 days
after the submission of the draft budget the provisions of
Sub-Clause 6.4 shall apply.
6.3 Amendments to Budgets
During the course of any financial year, the Company may from time to time
request any changes to be made to the approved Budget. Any such request
shall be made in writing to each of the Shareholders and, for the purposes
of endeavouring to agree to any such change, the request shall be treated
as if it formed part of a draft Budget, in accordance with Sub Clause 6.2,
save that the timetable for endeavouring to reach agreement shall be 10
days rather than 30 days.
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6.4 Disputed Budgets
In the event of any failure to agree amongst the parties as to the form or
content of any draft Budget (which expression shall, for the purposes of
this Sub-Clause, include any proposed revision pursuant to Sub-Clause
6.3), then pending resolution of the dispute or failure to agree the
Company shall not be entitled to carry out any activities which are the
subject of dispute, except in so far as necessary in order to comply with
legally binding obligations which it has previously incurred in accordance
with this Agreement or insofar as the carrying out of such activities
falls within the terms of any previous approved Budget.
6.5 Principles Governing Budget
Any draft Budget produced by the Company, and any approved Budget shall,
unless the parties otherwise agree:
6.5.1 be itemised monthly and cover the immediately following financial
year;
6.5.2 contain forecasts of turnover, cost of sales, trading profit or loss
for each month during the period which it covers;
6.5.3 include all anticipated expenditure during the period under the
following principal headings: e.g
(A) cost of goods sold ("COGS"), including breakdown of fuel,
additive, and royalties;
(B) payroll and taxes;
(C) marketing;
(D) facilities;
(E) other operating expenses, including travel & entertainment,
administrative, accounting, legal, etc.;
(F) lease & interest expenses;
(G) depreciation & amortization; and
(H) capital expenditure;
6.5.4 Contain a Balance Sheet and Cashflow Statement in a manner
consistent with the Agreed Accounting Practices and Policies;
6.5.5 identify any requirements for external funding of any such
activities and the proposed method of raising such funding; and
6.5.6 be prepared, so far as is practicable, in a manner consistent with
the Agreed Accounting Practices and Policies.
6.6 Monthly Information and Performance
6.6.1 Management Information
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The Company shall prepare monthly management information which shall
contain a report of the revenue and expenditure of the Company
during the month, a comparison of the actual revenue and expenditure
against that forecast for the corresponding period in the approved
Budget, an explanation of any difference between the two in excess
of per cent and of any factors or circumstances known to the Company
which may lead the Company to consider that the results of the
Company for forthcoming months may differ from the approved Budget
by an amount in excess of 10 per cent. Such information shall be
delivered to the Shareholders within 14 days after the end of the
month to which it relates.
6.6.2 Variations from agreed Budget
If the management information produced pursuant to Sub-Clause 6.6.1
demonstrates a shortfall or forecast shortfall between any actual or
forecast figure and the corresponding figure in the approved Budget,
the Company shall as soon as practicable prepare a revised budget
for the remainder of the then current financial year and shall
propose such revised budget as a draft budget, with respect to which
the provisions of this Clause 6 shall have effect.
6.7 Annual Accounts
Without prejudice to the preceding provisions of this Clause 6, at the end
of each financial year, or as soon as reasonably practicable thereafter,
the Company shall procure:
6.7.1 that an account shall be taken of all the assets and liabilities of
the Company and of all dealings and transactions of the Company
during such financial year;
6.7.2 that the Directors shall prepare a report and accounts in accordance
with the Act and the Agreed Accounting Practices and Policies to be
audited by the Auditors within 60 days of the end of each financial
year; and
6.7.3 that such accounts shall be laid before the Company in general
meeting not later than 4 months after the relevant accounting
reference date.
7. STRATEGIC CONSULTATION
In addition to the above consultations, the Shareholders will meet once a
quarter to discuss strategy for the Company.
8. TECHNICAL SUPPORT
NewGen agrees to provide full technical support for all Company efforts in
the Territories, as required for successful execution of the Business
strategies agreed on a quarterly basis.
9. FUNDING OF THE COMPANY
9.1 Initial Funding
The initial operating funds for the Company will be provided via a
short-term loan of $US200,000, as documented by the Short Term Loan
Agreement. Of this loan, US$96,590.60 has already been paid by NewGen, as
shown in Schedule 2. A further US$26,819.54 of the remaining balance has
been invoiced for other expenses. Newgen undertakes to pay promptly these
amounts which have been invoiced from the remaining balance of the
$200,000. Newgen further undertakes that it will forward the balance of
the $200,000, namely US$76,589.86, to the Company's Bank account within 7
days of the date of this Agreement.
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9.2 Additional Funding
9.2.1 No Shareholder shall have any obligation to provide any additional
capital to the Company. Further, it is agreed that, to the extent
that further funding, whether for capital or revenue expenditure is
necessary for the Company in order to develop or carry on the
Business in accordance with the terms and intention of this
Agreement, such funding should first be sought by the Directors on
behalf of the Company from third party investors, on the best terms
reasonably available to the Company. It is acknowledged by the
Shareholders that such funding is likely to be provided by way of
equity investment in the Company. It has been agreed in principle
that new shares of the Company will be registered for such equity
investment, as well as to provide incentives for partners and hiring
of officers as determined to be in the best interest of the company.
Issue of such equity requires the prior approval of the board of
Directors of the Company.
9.2.2 Upon successful equity capital funding of the Company, NewGen will
provide an additional short term loan to match the equity capital
raised, up to a maximum loan amount of (pound)500,000 on the same
terms as the Short Term Loan Agreement.
9.2.3 Unpaid salaries and expenses for Mr G ▇▇▇▇▇▇ and Mr A Greystoke will
be deferred until such time that additional funding is acquired by
the Company.
9.2.4 The Company will not enter into any agreement for the provision of
Funding to it in an amount over (pound)100,000 without the agreement
of the Shareholders.
10. ALLOCATIONS AND DISTRIBUTIONS
10.1 Allocations of Net Profits and Net Losses from Operations. All Net
Profits, Net Losses and other items of income, gain, loss, deduction and credit
of the Company shall be allocated annually to the Shareholders pursuant to each
Shareholder's Shareholding.
10.2 Distributions. The Board of Directors shall determine in its
reasonable judgment to what extent, if any, the Company may make Distributions
in accordance with this Agreement, and shall authorize the Managing Director to
make such Distributions to the Shareholders at such times and in such amounts as
the Board of Directors determines.
10.3 Limitations on Distributions. No Distribution shall be declared and
paid unless, after the Distribution is made, the assets of the Company are in
excess of all liabilities of the Company.
11. PROTECTION OF THE BUSINESS
11.1 Definitions
In this Clause:
20
11.1.1 "competing business" means any business that is primarily engaged
in the business of selling fuel additives to sellers of conventional
or alternative fuels or selling conventional or alternative fuels,
which may or may not contain fuel additives, blends with
conventional fuels, in either case, that provide benefits similar to
the benefits provided with the technology being licensed by the
Company from NewGen;
11.1.2 "restricted goods or services" means goods or services of the same
type as or substantially similar to any goods or services supplied
by the Company or any of its Subsidiaries in carrying on any
material aspect of the Business;
11.1.3 "Restricted Parties" means Messrs. Greystoke, Dawson, King,
Williamson, and ▇▇▇▇▇, and any other current or future key employee
or Director of the Company or any Subsidiary. (To the extent that
any such persons are not parties to this Agreement, the Company will
procure that such persons enter separate deeds to give effect to
these obligations);
11.1.4 references to acting directly or indirectly include (without
prejudice to the generality of that expression) references to acting
alone or jointly with or by means of any other person.
11.2 Restrictions
Each of the Restricted Parties, and solely with respect to Sub-Clause
8.2.2(b), each Shareholder covenants with each of the other parties that:
11.2.1 until the expiration of 2 years from the date of termination of
this Agreement (the "Termination Date"), he shall not directly or
indirectly carry on or be engaged or interested in a competing
business other than NewGen, or one of its Subsidiaries, save that he
may hold for investment up to five per cent of any class of
securities of any competing business quoted or dealt in on the
London Stock Exchange or the AIM market in the United Kingdom;
11.2.2 until the expiration of 2 years from the Termination Date, he shall
not directly or indirectly:
(A) solicit, canvass or approach or endeavour to solicit, canvass
or approach on behalf of a competing business any person for
the purpose of offering to that person restricted goods or
services or supply on behalf of a competing business other
than NewGen, or one of its Subsidiaries:
(i) who, to his knowledge, was provided with goods or
services or licence rights by the Company in the course
of the carrying on of the Business at any time during
the 2 years up to and including the Termination Date; or
(ii) who, to his knowledge, was negotiating with the Company
for the supply of goods or services or exploitation
rights in the course of the carrying on of the Business
at any time during the 12 months up to and including the
Termination Date;
21
(B) solicit or entice away or endeavour to solicit or entice away
from the Company on behalf of a competing business other than
NewGen, or one of its Subsidiaries, any person who is then
employed by the Company, or who was employed by the Company at
any time during the twelve (12) months immediately preceding
the Termination Date, in each case in an executive, senior
technical, or senior sales capacity with a view to inducing
that person to leave such employment and to act for a
competing business in the same or a similar capacity..
11.3 Restrictions Separate
Each of the restrictions set out in Sub-Clauses 11.2.1 and 11.2.2 are
separate and severable and in the event of any such restriction being
determined as unenforceable in whole or in part for any reason, such
unenforceability shall not affect the enforceability of the remaining
restrictions or (in the case of restrictions unenforceable in part) the
remainder of that restriction. The duration, scope and geographic area for
which the provisions set forth in this Agreement are to be effective are
reasonable. If any court of competent jurisdiction determines that any
provision of this Agreement is invalid or unenforceable by reason of such
provision extending the covenants and Agreements contained herein for too
great a period of time or over too great a geographical area, or by reason
of its being too extensive in any other respect, such agreement or
covenant shall be interpreted to extend only over the maximum period of
time and geographical area, and to the maximum extent in all other
respects, as to which it is valid and enforceable, all as determined by
such court in such action. Any determination that any provision of this
Agreement is invalid or unenforceable, in whole or in part, shall have no
effect on the validity or enforceability of any remaining provision of
this Agreement.
11.4 Company Obligation
The Company shall use all reasonable efforts to ensure that all future
directors and key employees of the Business (whether through the Company
or any of its Subsidiaries) enter into substantially identical
restrictions as are set forth in this Clause 10.
12. REPRESENTATIONS AND WARRANTIES
Each party to this Agreement represents and warrants to each of the other
parties that:
12.1 It has the power or capacity to enter into and to exercise its rights and
to perform its obligations under this Agreement;
12.2 It has taken all necessary action to authorise the execution of and the
performance of its obligations under this Agreement;
12.3 the obligations expressed to be assumed by it under this Agreement are
legal, valid, binding and enforceable;
12.4 neither its execution nor performance of this Agreement will contravene
any provision of:
12.4.1 any existing law, treaty or regulation; or
12.4.2 any obligation (contractual or otherwise) which is binding upon it,
or upon any of its assets;
22
12.5 all consents, licences, approvals or authorisations of, exemptions by or
registrations with or declarations by, any governmental or other authority
required by it with respect to this Agreement have been obtained or made,
are valid and subsisting and will not be contravened by the execution or
performance of this Agreement; and
12.6 (in the case of each of the Shareholders) the Shares to be transferred to
and/or subscribed for by it will not, upon or after such transfer and/or
subscription, become subject to any Encumbrance.
13. DEFAULT
13.1 Events of Default
It shall be an event of default (an "Event of Default") if:
13.1.1 any party does not pay any amount payable by it under this
Agreement and such amount remains unpaid after the expiry of 20
Business Days following the giving by any of the other parties to
such party of a notice requiring such payment to be made;
13.1.2 an order is made by a court of competent jurisdiction, or a
resolution is passed, for the dissolution or administration of that
party (otherwise than in the course of a reorganisation or
restructuring previously approved in writing by the other parties);
or
13.1.3 any step is taken (and not withdrawn within 30 days) to appoint a
manager, receiver, administrative receiver, administrator, trustee
or other similar officer in respect of any assets which include
either (i) (in the case of a Shareholder) the Shares held by that
Shareholder or (ii) (in the case of each of the parties) shares or
other securities in that party; or
13.1.4 any party convenes a meeting of its creditors or makes or proposes
any arrangement or composition with, or any assignment for the
benefit of, its creditors; or
13.1.5 any party commits a material breach of this Agreement and (if
capable of remedy) fails to remedy the same (or establish plans to
remedy the same in a manner satisfactory to the non-defaulting
parties) within 30 days of notice to do so being given by any other
party (and in which such other party expresses its intention to
exercise its rights under this clause).
13.2 Consequences of an Event of Default
If an Event of Default occurs in relation to a Shareholder (a "Defaulting
Shareholder") then, without prejudice to the Defaulting Shareholder's
obligations under this Agreement and to any other rights or remedies
available to any of the parties with respect to the Defaulting
Shareholder, any of the other Shareholders shall be entitled by notice in
writing to the Defaulting Shareholder (copied to the other parties) at any
time whilst such Event of Default subsists to require:
13.2.1 that the Defaulting Shareholder shall not exercise its right to
attend and vote at general meetings of the Company; and/or
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13.2.2 that any director appointed by the Defaulting Shareholder shall be
suspended.
14. TERMINATION
14.1 Termination
This Agreement shall, notwithstanding Completion, remain in full force and
effect as between all the parties until the earlier of:
14.1.1 the dissolution of the Company; or
14.1.2 the agreement of all the parties that it be terminated.
14.2 Consequences of Termination
Termination of this Agreement (pursuant to Sub-Clause 14.1) shall be
without prejudice to any accrued rights or obligations of the parties up
to the date of termination and the provisions of Clauses 1, 11, 12, 16, 17
and 18 shall remain in full force and effect notwithstanding termination.
15. COSTS AND EXPENSES
15.1 Each party shall bear its own costs and expenses, including the fees and
expenses of its legal and other advisers and VAT or any similar tax
thereon, incurred in connection with the establishment of the joint
venture pursuant to this Agreement including:
15.1.1 the negotiation, preparation, printing and execution of this
Agreement and any other documents referred to in this Agreement or
ancillary or incidental to it; and
15.1.2 the negotiation, preparation, printing and execution of all
supplements, waivers and variations of this Agreement or any other
such documents as are referred to in Sub-Clause 15.1.1.
16. CONFIDENTIALITY AND ANNOUNCEMENTS
16.1 General Restrictions
Subject to the exceptions provided in Sub-Clause 16.2, none of the parties
shall, at any time, whether before or after the expiry or sooner
termination of this Agreement, without the written consent of the other
parties, divulge or permit its officers, employees, agents, advisers or
contractors to divulge to any person (other than to any respective
officers or employees of a party or a person to whom, in each case,
disclosure of information is permitted by this Agreement and who require
the same to enable them properly to carry out their duties) or use, other
than for the purpose of performing its obligations under this Agreement or
to further the business:
16.1.1 any of the contents of this Agreement;
16.1.2 any information which it may have or acquire (whether before or
after the date of this Agreement) relating to the Business and/or
any customers of or suppliers to the Business, or otherwise to the
business, assets or affairs of the Company save in each case for its
own proprietary or confidential information or trade secrets;
24
16.1.3 any information which, in consequence of the negotiations relating
to this Agreement or of a party being involved in the Business or
the Company in any manner whatsoever (including as a Shareholder and
as an appointor of a director) or performing or exercising its
rights and obligations under this Agreement, any party may have
acquired (whether before or after the date of this Agreement) with
respect to the customers, business, assets or affairs of any other
party.
16.2 Exceptions
The restrictions imposed by Sub-Clause 16.1 shall not apply to the
disclosure of any information by a party (the "disclosing party"):
16.2.1 which now or hereafter comes into the public domain otherwise than
as a result of a breach of such undertaking of confidentiality;
16.2.2 which is required by law to be disclosed to any person who is
authorised by law to receive the same;
16.2.3 which is required to be disclosed by the regulations of any
recognised exchange upon which the share capital of the disclosing
party is or is proposed to be from time to time listed or dealt in;
16.2.4 to a court, arbitrator or administrative tribunal in the course of
proceedings before it to which the disclosing party is a party in a
case where such disclosure is required by such proceedings;
16.2.5 to any professional advisers to the disclosing party who are bound
to the disclosing party by a duty of confidence which applies to any
information disclosed;
16.2.6 to the other parties to this Agreement;
16.2.7 pursuant to the terms of this Agreement; or
15.2.8 to potential lenders to or investors in a disclosing party in
connection with a bona fide financing transaction or to a Person
that would be a Permitted Assignee.
17. MISCELLANEOUS PROVISIONS
17.1 No Partnership
Nothing in this Agreement or in any document referred to in it shall
constitute any of the parties a partner of any other, nor shall the
execution, completion and implementation of this Agreement confer on any
party any power to bind or impose any obligations to any third parties on
any other party or to pledge the credit of any other party.
17.2 Assignment
None of the parties may assign any of their respective rights or
obligations under this Agreement nor any of the documents referred to in
this Agreement in whole or in part (otherwise than pursuant to a transfer
of Shares in accordance in all respects with the provisions and
requirements of this Agreement and of the New Articles) save that either
party shall be entitled to assign its rights and obligations under this
Agreement to: (i) any Connected Person, (ii) any lender in connection with
a bona fide loan transaction or (iii) any third party who shall be an
indirect transferee resulting from an indirect transfer by the party as a
result of a sale of substantially all of its assets or more than 35% of
its voting securities (a "Permitted Assignee").
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17.3 Waiver
No delay by or omission of any party in exercising any right, power,
privilege or remedy under this Agreement shall operate to impair such
right, power, privilege or remedy or be construed as a waiver thereof. Any
single or partial exercise of any such right, power, privilege or remedy
shall not preclude any other or future exercise thereof or the exercise of
any other right, power, privilege or remedy. The rights and remedies
provided in this Agreement are cumulative and not exclusive of any rights
and remedies provided by law.
17.4 Entire Agreement
17.4.1 This Agreement, together with the documents in the agreed form,
represents the entire understanding, and constitutes the whole agreement,
in relation to its subject matter and supersedes any previous agreement
between the parties with respect thereto and, without prejudice to the
generality of the foregoing, excludes any warranty, condition or other
undertaking implied at law or by custom.
17.4.2 Each party confirms that, except as provided in this Agreement, no
party has relied on any representation or warranty or undertaking which is
not contained in this Agreement, or in the documents in the agreed form
and, without prejudice to any liability for fraudulent misrepresentation,
no party shall be under any liability or shall have any remedy in respect
of misrepresentation or untrue statement unless and to the extent that a
claim lies under this Agreement.
17.5 Notices
17.5.1 Any notice or other communication to be given by one party to
another under, or in connection with the matters contemplated by
this Agreement shall be addressed to the recipient and sent to the
address or facsimile number of such other party given in this
Agreement for the purpose and marked for the attention of the person
so given or such other address or facsimile number and/or marked for
such other attention as such other party may from time to time
specify by notice given in accordance with this clause to the party
giving the relevant notice or communication to it. In the case of
each Shareholder, the relevant details as at the date of this
Agreement are set out in Schedule 1. In the case of the Company,
such details are:
Address: ▇▇▇▇ ▇▇▇▇▇, ▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Facsimile Number: ▇▇▇-(▇)-▇▇▇-▇▇▇-▇▇▇▇
For the attention of: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
17.5.2 In the case of NewGen, such details are:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
Facsimile Number: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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17.5.3 In the case of AG Partners, such details are:
Address: ▇▇▇▇ ▇▇▇▇▇, ▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Fax number: ▇▇▇-(▇)-▇▇▇-▇▇▇-▇▇▇▇
For the attention of: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
17.5.4 Any notice or other communication to be given by any party to
any other party under, or in connection with the matters
contemplated by this Agreement shall be in writing and shall
be given by letter delivered by hand or sent by first class
prepaid post (airmail if overseas) or facsimile, and shall be
deemed to have been received:
(A) in the case of delivery by hand, when delivered; or
(B) in the case of airmail post, at the expiration of 48 hours
following the posting; or
(C) in the case of facsimile or electronic data transmission, at
the time of sending (but the sender is under a duty to seek
confirmation of receipt).
17.5.5 Any notice or other communication not received on a Business Day or
received after 17:00 hours local time on any Business Day in the place of
receipt shall be deemed to be received on the next following Business Day.
17.6 Counterparts
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when executed
and delivered shall constitute an original, but all the counterparts shall
together constitute but one and the same instrument.
17.7 Variations
No variation to this Agreement shall be effective unless made in writing
and signed by or on behalf of the parties.
17.8 Standstill Agreement
No Shareholder shall directly or indirectly engage in any transaction
pursuant to which such Shareholder buys or sells (including short sales)
shares of NewGen or any affiliate of NewGen that are listed or quoted on
any U.S. or non-U.S. public securities or options exchange, except for the
following: (i) any sales of shares or option transactions from shares or
options received or originally purchased directly from NewGen by the
Shareholder in amounts not to exceed US $250,000 annually or (ii) regular
sales made pursuant to a plan of disposition under Rule 10b-5-1
promulgated under the Securities and Exchange Act of 1934, as amended.
18. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
18.1 This Agreement shall be governed by, and construed in accordance with,
English law.
18.2 The Courts of England shall have exclusive jurisdiction in relation to any
claim, dispute or difference concerning this Agreement and any matter
arising therefrom.
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IN WITNESS whereof the parties have executed this Agreement on the day and
year first hereinbefore mentioned.
AG Partners Limited
By: _________________________
Name: _________________________
Title: _________________________
Date: _________________________
NewGen Technologies Incorporated
By: _________________________
Name: _________________________
Title: _________________________
Date: _________________________
NewGen Fuel Technologies Limited
By: _________________________
Name: _________________________
Title: _________________________
Date: _________________________
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