::ODMA\PCDOCS\DOCS\141015\3
Stock Purchase Agreement
among
Key Rocky Mountain, Inc.,
▇▇▇▇▇ ▇. Bummer,
▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and
▇▇▇▇▇ Bummer 7/14/82 Family Trust
Dated as of September 30, 1997
::ODMA\PCDOCS\DOCS\141015\3
TABLE OF CONTENTS
Page
ARTICLE 1Purchase and Sale
1.1. Purchase and Sale of the Company Shares.............................1
1.2. Adjustment of Purchase Price........................................1
1.3. Closing.............................................................2
1.4. Closing Deliveries..................................................2
1.4.1. Opinion of Buyer=s Counsel..................................2
1.4.2. Opinion of Shareholders= Counsel............................3
1.5. Resignations; Consulting Agreement..................................3
ARTICLE 2Representations and Warranties
2.1. Representations and Warranties of the Shareholders..................3
2.1.1. Organization and Standing..................................3
2.1.2. Agreement Authorized and its Effect on Other Obligations...4
2.1.3. Capitalization.............................................4
2.1.4. Ownership of the Company Shares............................4
2.1.5. No Subsidiaries............................................4
2.1.6. Financial Statements.......................................4
2.1.7. Liabilities................................................5
2.1.8. Additional Company Information.............................5
2.1.9. No Defaults................................................7
2.1.10. Absence of Certain Changes and Events......................7
2.1.11. Taxes......................................................8
2.1.12. Intellectual Property......................................8
2.1.13. Title to and Condition of Assets...........................9
2.1.14. Contracts..................................................9
2.1.15. Licenses and Permits.......................................9
2.1.16. Litigation.................................................10
2.1.17. Environmental Compliance...................................10
2.1.18. Compliance with Other Laws.................................11
2.1.19. No ERISA Plans or Labor Issues.............................11
2.1.20. Investigations; Litigation.................................12
2.1.21. Absence of Certain Business Practices......................12
2.1.22. No Untrue Statements.......................................12
2.1.23. Consents and Approvals.....................................12
2.1.24. Finder=s Fee...............................................13
2.2. Representations and Warranties of Buyer.............................13
2.2.1. Organization and Good Standing..............................13
2.2.2. Agreement Authorized and its Effect on Other Obligations....13
2.2.3. Consents and Approvals......................................13
2.2.4. Finder=s Fee................................................13
ARTICLE 3Additional Agreements
3.1. Noncompetition......................................................13
3.2. Further Assurances..................................................14
3.3. Public Announcements................................................14
3.4. 338(h)(10) Election.................................................14
3.5. Waste Disposal......................................................14
ARTICLE 4Indemnification
4.1. Indemnification by the Shareholders................................15
4.2. Indemnification by Buyer............................................15
4.3. Indemnification Procedure...........................................15
ARTICLE 5Miscellaneous
5.1. Survival of Representations, Warranties and Covenants...............16
5.2. Entirety............................................................16
5.3. Counterparts........................................................16
5.4. Notices and Waivers.................................................16
5.5. Table of Contents and Captions......................................17
5.6. Successors and Assigns..............................................17
5.7. Severability........................................................17
5.8. Applicable Law......................................................18
::ODMA\PCDOCS\DOCS\141015\3
Stock Purchase Agreement
This Stock Purchase Agreement (this AAgreement@) is entered into as of
September 30, 1997, by and among Key Rocky Mountain, Inc., a Delaware
corporation (ABuyer@), and ▇▇▇▇▇ ▇. Bummer (ABummer@), ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Bummer 7/14/82 Family Trust (AFamily Trust@) and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Bummer,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Family Trust, collectively the AShareholders@).
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WITNESSETH :
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Whereas, Buyer is a corporation duly organized and validly existing under
the laws of the State of Delaware, with its principal executive offices at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇;
Whereas, Frontier Well Service, Inc. (the ACompany@) is a corporation duly
organized and validly existing under the laws of the State of Wyoming, with its
principal executive offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇;
Whereas, the Shareholders own 2,000 shares (the ACompany Shares@) of common
stock, no par value, of the Company (the ACompany Common Stock@), which
constitutes all of the issued and outstanding shares of capital stock of the
Company; and
Whereas, the Shareholders desire to sell to Buyer, and Buyer desires to
purchase from the Shareholders, all of the issued and outstanding capital stock
of the Company.
Now, Therefore, in consideration of the premises and of the mutual
covenants and agreements herein contained, the parties hereto hereby agree as
follows:
ARTICLE 1
Purchase and Sale
ARTICLE 1 Purchase and Sale
1.1. Purchase and Sale of the Company Shares.Purchase and Sale of the
Company Shares. Subject to the terms and conditions of this Agreement, on the
date hereof, the Shareholders agree to sell and convey to Buyer, free and clear
of all Encumbrances (as defined in Section 2.1.8.1 hereof), and Buyer agrees to
purchase and accept from the Shareholders, all of the Company Shares. In
consideration of the sale of the Company Shares, Buyer shall pay to the
Shareholders a purchase price of $3,500,000 (the APurchase Price@), and the Cash
Adjustment Payment (as defined in Section 1.2 hereof), if any, in accordance
with Section 1.2 hereof.
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TABLE OF CONTENTS
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(continued)
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21
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1.2. Adjustment of Purchase Price1.2. Adjustment of Purchase Price. Buyer
shall cause to be prepared and delivered to the Shareholders a consolidated
balance sheet of the Company as of the date hereof (the AFinal Balance Sheet@)
within 60 days after the date hereof, which balance sheet will be prepared in
accordance with generally accepted accounting principles, consistently applied
in all respects (which shall not include any reserve or accruals for employee
termination costs). Buyer and the Shareholders shall jointly review the Final
Balance Sheet, and endeavor in good faith to resolve all disagreements regarding
the entries thereon and reach a final determination thereof within 90 days from
the date hereof. In the event that the parties cannot agree on the entries to be
placed on the Final Balance Sheet, the dispute will be resolved by an
independent accounting firm mutually agreed to by the Shareholders and Buyer
(such agreement not to be unreasonably withheld or delayed) whose resolution
shall be binding on and enforceable against the parties hereto. Within 10 days
of reaching such final determination, the following adjusting payments shall be
made:
(1) If the sum of (A) the Final Net Current Value of the Company (defined
below) plus (B) any amounts spent by the Company as capital expenditures used to
expand the Company=s business (the ACapital Expenditure Amount@) exceeds $0.00,
Buyer shall pay to the Shareholders the amount of such excess (the ACash
Adjustment Payment@); or
(2) If the sum of (A) the Final Net Current Value of the Company plus the
Capital Expenditure Amount is less than $0.00, the Shareholder shall pay to
Buyer the amount of such difference.
The term AFinal Net Current Value of the Company@ means the dollar value of
the amount by which the ATotal Current Assets@ (excluding ACash Value-Life
Insurance@) as recorded on the Final Balance Sheet exceeds the ATotal Current
Liabilities@ as recorded on the Final Balance Sheet. In determining the Final
Net Current Value of the Company, the Buyer shall have the option to either
acquire and pay for the uncollected receivables listed on Schedule 2.1.6 or
assign such uncollected receivables to Sellers and, to the extent so assigned,
the amount of such assigned uncollected receivables shall be deducted from the
Net Current Value of the Company.
1.3. Closing.Closing. Consummation of the transactions contemplated by this
Agreement (the AClosing@) shall take place at the offices or the Company located
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ at 9:00 a.m. on September 30, 1997
(the AClosing Date@), unless another time, place or date is agreed to by the
Shareholders and the Buyer.
1.4. Closing Deliveries.Closing Deliveries. At the Closing, (a) the
Shareholders shall deliver to Buyer duly and validly issued certificate(s)
representing all shares of Company Shares owned beneficially or of record by
them, each such certificate to be duly endorsed in blank and in good form for
transfer, or accompanied by stock powers duly executed in blank sufficient and
in good form to properly transfer such shares to Buyer, (b) the Shareholders and
Buyer shall have delivered to one another all other documents, instruments and
agreements as required under this Agreement, (c) Buyer shall deliver to the
Shareholders the cash purchase price payable at Closing as provided in
Section 1.1 by a check drawn on the account of Buyer or one of Buyer=s
affiliates, and (d) the Buyer and Shareholders will deliver to one another the
opinions of counsel as described below:
1.4.1. Opinion of Buyer=s Counsel.Opinion of Buyer=s Counsel. The Buyer
shall deliver a favorable opinion, dated as of the Closing Date, from ▇▇▇▇▇▇ &
▇▇▇▇▇▇, L.L.P., counsel for the Buyer, in form and substance satisfactory to the
Shareholders, to the effect that (i) the Buyer has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its state
of organization; (ii) all corporate proceedings required to be taken by or on
the part of the Buyer to authorize the execution of this Agreement and the
implementation of the transactions contemplated hereby have been taken; and
(iii) this Agreement has been duly executed and delivered by, and is the legal,
valid and binding obligation of the Buyer and is enforceable against Buyer in
accordance with its terms, except as enforceability may be limited by
(a) equitable principles of general applicability or (b) bankruptcy, insolvency,
reorganization, fraudulent conveyance or similar laws affecting the rights of
creditors generally. In rendering such opinion, such counsel may rely upon
(i) certificates of public officials and of officers of the Buyer as to matters
of fact and (ii) the opinion or opinions of other counsel, which opinions shall
be reasonably satisfactory to the Shareholders, as to matters other than federal
or Texas law.
1.4.2. Opinion of Shareholders= Counsel.Opinion of Shareholders= Counsel.
The Shareholders shall deliver a favorable opinion, dated the Closing Date, from
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, counsel to the Shareholders, in form and substance
satisfactory to Buyer, to the effect that (i) the Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Wyoming and is qualified to transact business in every
jurisdiction in which the nature of the Company=s contacts require such
qualification, (ii) all outstanding shares of the Company Common Stock have been
validly issued and are fully paid and nonassessable; (iii) all of the Company
Shares are owned beneficially and of record by the Shareholders free of any
Encumbrances; (iv) the Company owns all of its assets free and clear of any
Encumbrances other than those Encumbrances listed on the Balance Sheet or
Schedules hereto, and (v) this Agreement has been duly executed and delivered
by, and is the legal, valid and binding obligation of the Shareholders and is
enforceable against the Company and the Shareholders in accordance with its
terms, except as the enforceability may be limited by (a) equitable principles
of general applicability or (b) bankruptcy, insolvency, reorganization,
fraudulent conveyance or similar laws affecting the rights of creditors
generally. In rendering such opinion, such counsel may rely upon (i)
certificates of public officials and of officers of the Company or the
Shareholders as to matters of fact and (ii) on the opinion or opinions of other
counsel, which opinions shall be reasonably satisfactory to Buyer, as to matters
other than federal or Wyoming law.
1.5. Resignations; Consulting Agreement.Resignations; Consulting Agreement.
At the Closing, each of the officers and directors of the Company will resign,
and Buyer will enter into a Consulting Agreement with Bummer and an Employment
Agreement with ▇▇▇▇▇▇▇▇ (the AEmployment Agreement@) in form and substance
satisfactory to the parties thereto.
ARTICLE 2
Representations and Warranties
ARTICLE 2 Representations and Warranties
2.1. Representations and Warranties of the Shareholders.Representations and
Warranties of the Shareholders. Each of the Shareholders jointly and severally
represents and warrants to Buyer as follows:
2.1.1. Organization and Standing.Organization and Standing. The Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Wyoming, has full requisite corporate power and authority
to carry on its business as it is currently conducted, and to own and operate
the properties currently owned and operated by it, and is duly qualified or
licensed to do business and is in good standing as a foreign corporation
authorized to do business in all jurisdictions in which the character of the
properties owned or the nature of the business conducted by it would make such
qualification or licensing necessary.
2.1.2. Agreement Authorized and its Effect on Other Obligations.Agreement
Authorized and its Effect on Other Obligations. Each of the Shareholders is a
resident of Wyoming, above the age of 18 years, and has the legal capacity and
requisite power and authority to enter into, and perform his obligations under
this Agreement. This Agreement is a valid and binding obligation of each of the
Shareholders enforceable against each of the Shareholders in accordance with its
terms. The execution, delivery and performance of this Agreement by the Company
and each of the Shareholders will not conflict with or result in a violation or
breach of any term or provision of, nor constitute a default under (i) the
Certificate of Incorporation or Bylaws of the Company or (ii) any obligation,
indenture, mortgage, deed of trust, lease, contract or other agreement to which
the Company or either of the Shareholders is a party or by which the Company or
either of the Shareholders or their respective properties are bound.
2.1.3. Capitalization.Capitalization. The authorized capitalization of the
Company consists of 50,000 shares of Company Common Stock, of which, as of the
date hereof, 2,000 shares are issued and outstanding and held beneficially and
of record by the Shareholders. On the date hereof, the Company does not have any
outstanding options, warrants, calls or commitments of any character relating to
any of its authorized but unissued shares of capital stock. All issued and
outstanding shares of Company Common Stock are validly issued, fully paid and
non-assessable and are not subject to preemptive rights. None of the outstanding
shares of Company Common Stock is subject to any voting trusts, voting agreement
or other agreement or understanding with respect to the voting thereof, nor is
any proxy in existence with respect thereto.
2.1.4. Ownership of the Company Shares.Ownership of the Company Shares. The
Shareholders hold good and valid title to all of the Company Shares, free and
clear of all Encumbrances. The Shareholders possess full authority and legal
right to sell, transfer and assign the Company Shares to Buyer, free and clear
of all Encumbrances. Upon transfer to Buyer by the Shareholders of the Company
Shares, Buyer will own the Company Shares free and clear of all Encumbrances.
There are no claims pending or, to the knowledge of either of the Shareholders,
threatened, against the Company or either of the Shareholders that concern or
affect title to the Company Shares, or that seek to compel the issuance of
capital stock or other securities of the Company.
2.1.5. No Subsidiaries2.1.5. No Subsidiaries. There is no corporation,
partnership, joint venture, business trust or other legal entity in which the
Company, either directly or indirectly through one or more intermediaries, owns
or holds beneficial or record ownership of the outstanding voting securities.
2.1.6. Financial ▇▇▇▇▇▇▇▇▇▇▇.▇.▇.▇▇▇▇▇▇▇▇▇ Statements. The Company has
delivered to Buyer copies of the Company=s unaudited balance sheet as of
June 30, 1997, a copy of which is attached hereto as Schedule 2.1.6 (the A6/30
Balance Sheet@), and related statements of income (collectively, the AFinancial
Statements@), as at and for the six months ended as of June 30, 1997 (the
ABalance Sheet Date@). The Financial Statements are complete in all material
respects. The Financial Statements present fairly the financial condition of the
Company as at the dates and for the periods indicated. The Financial Statements
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis. Except as set forth on Schedule 2.1.6, the
accounts receivable reflected in the 6/30 Balance Sheet, or which have been
thereafter acquired by the Company, have been collected or are collectible at
the aggregate recorded amounts thereof less applicable reserves, which reserves
are adequate. The inventories of the Company reflected in the 6/30 Balance
Sheet, or which have thereafter been acquired by it, consist of items of a
quality usable and salable in the normal course of the Company=s business, and
the values at which inventories are carried are at the lower of cost or market.
2.1.7. Liabilities2.1.7.Liabilities. The Company does not have any
liabilities or obligations, either accrued, absolute or contingent, nor do
either of the Shareholders have any knowledge of any potential liabilities or
obligations, other than those (i) reflected or reserved against in the 6/30
Balance Sheet or (ii) incurred in the ordinary course of business since the
Balance Sheet Date that would not materially adversely affect the value and
conduct of the business of the Company
2.1.8. Additional Company Information2.1.8. Additional Company Information.
Attached as Schedule 2.1.8 hereto are true, complete and correct lists of the
following items:
2.1.8.1. Real Estate2.1.8.1. Real Estate. All real property and structures
thereon owned, leased or subject to a contract of purchase and sale, or lease
commitment, by the Company, with a description of the nature and amount of any
Encumbrances thereon. The term AEncumbrances@ means all liens, security
interests, pledges, mortgages, deeds of trust, claims, rights of first refusal,
options, charges, restrictions or conditions to transfer or assignment,
liabilities, obligations, privileges, equities, easements, rights-of-way,
limitations, reservations, restrictions and other encumbrances of any kind or
nature;
2.1.8.2. Machinery and Equipment2.1.8.2. Machinery and Equipment. All rigs,
carriers, rig equipment, machinery, transportation equipment, tools, equipment,
furnishings, and fixtures owned, leased or subject to a contract of purchase and
sale, or lease commitment, by the Company with a description of the nature and
amount of any Encumbrances thereon;
2.1.8.3. Inventory2.1.8.3. Inventory. All inventory items or groups of
inventory items owned by the Company, excluding raw materials and work in
process, which raw materials and work in process are valued on the 6/30 Balance
Sheet, together with the amount of any Encumbrances thereon;
2.1.8.4. Receivables2.1.8.4. Receivables. All accounts and notes receivable
of the Company, together with (i) aging schedules by invoice date and due date,
(ii) the amounts provided for as an allowance for bad debts, (iii) the identity
and location of any asset in which the Company holds a security interest to
secure payment of the underlying indebtedness, and (iv) a description of the
nature and amount of any Encumbrances on such accounts and notes receivable;
2.1.8.5. Payables2.1.8.5. Payables. All accounts and notes payable of the
Company, together with an appropriate aging schedule. The amounts owed
represented by the line items ACurrent MaturitiesCNotes Payable@ and ANotes
PayableCDue After One Year@ on the 6/30 Balance Sheet still owed and outstanding
(including accrued and unpaid interest) as of the date hereof is $0.00 (the
ANotes Payable Amount@);
2.1.8.6. Insurance2.1.8.6. Insurance. All insurance policies or bonds
currently maintained by the Company, including title insurance policies, with
respect to the Company, including those covering the Company=s properties, rigs,
machinery, equipment, fixtures, employees and operations, as well as a listing
of any premiums, deductibles, audit adjustments or retroactive adjustments due
or pending on such policies or any predecessor policies;
2.1.8.7. Contracts2.1.8.7. Contracts. All contracts, including leases under
which the Company is lessor or lessee, which are to be performed in whole or in
part after the date hereof;
2.1.8.8. Employee Compensation Plans2.1.8.8. Employee Compensation Plans.
All bonus, incentive compensation, deferred compensation, profit-sharing,
retirement, pension, welfare, group insurance, death benefit, or other employee
benefit or fringe benefit plans, arrangements or trust agreements of the Company
or any employee benefit plan maintained by the Company, together with copies of
the most recent reports with respect to such plans, arrangements, or trust
agreements filed with any governmental agency and all Internal Revenue Service
determination letters and other correspondence from governmental entities that
have been received with respect to such plans, arrangements or agreements
(collectively, AEmployee Plans@);
2.1.8.9. Salaries2.1.8.9. Salaries. The names and salary rates of all
present employees of the Company, and, to the extent existing on the date of
this Agreement, all arrangements with respect to any bonuses to be paid to them
from and after the date of this Agreement;
2.1.8.10. Bank Accounts2.1.8.10. Bank Accounts. The name of each bank in
which the Company has an account and the names of all persons authorized to draw
thereon;
2.1.8.11. Employee Agreements2.1.8.11. Employee Agreements. Any collective
bargaining agreements of the Company with any labor union or other
representative of employees, including amendments, supplements, and written or
oral understandings, and all employment and consulting and severance agreements
of the Company;
2.1.8.12. Intellectual Property2.1.8.12. Intellectual Property. All
patents, patent applications, trademarks and service marks (including
registrations and applications therefor), trade names, copyrights and written
know-how, trade secrets and all other similar proprietary data and the goodwill
associated therewith (collectively, the AIntellectual Property@) used by the
Company;
2.1.8.13. Trade Names2.1.8.13. Trade Names. All trade names, assumed names
and fictitious names used or held by the Company, whether and where such names
are registered and where used;
2.1.8.14. Licenses and Permits2.1.8.14. Licenses and Permits. All permits,
authorizations, certificates, approvals, registrations, variances, waivers,
exemptions, rights-of-way, franchises, ordinances, licenses and other rights of
every kind and character (collectively, the APermits@) of the Company under
which it conducts its business;
2.1.8.15. Promissory Notes2.1.8.15. Promissory Notes. All long-term and
short-term promissory notes, installment contracts, loan agreements, credit
agreements, and any other agreements of the Company relating thereto or with
respect to collateral securing the same;
2.1.8.16. Guaranties2.1.8.16. Guaranties. All indebtedness, liabilities and
commitments of others and as to which the Company is a guarantor, endorser,
co-maker, surety, or accommodation maker, or is contingently liable therefor and
all letters of credit, whether stand-by or documentary, issued by any third
party;
2.1.8.17. Reserves and Accruals.2.1.8.17. Reserves and Accruals. All
accounting reserves and accruals maintained in the 6/30 Balance Sheet;
2.1.8.18. Leases.2.1.8.18. Leases. All leases to which the Company is a
party; and
2.1.8.19. Environment.2.1.8.19. Environment. All environmental permits,
approvals, certifications, licenses, registrations, orders and decrees
applicable to current operations conducted by the Company and all environmental
audits, assessments, investigations and reviews conducted by the Company within
the last five years or otherwise in the Company=s possession on any property
owned, leased or used by the Company.
2.1.9. No Defaults.2.1.9. No Defaults. The Company is not a party to, or
bound by, any contract or arrangement of any kind to be performed after the date
hereof, nor is the Company in default in any obligation or covenant on its part
to be performed under any obligation, lease, contract, order, plan or other
arrangement.
2.1.10. Absence of Certain Changes and Events2.1.10. Absence of Certain
Changes and Events. Except as disclosed on Schedule 2.1.10 hereto and other than
as a result of the transactions contemplated by this Agreement, since the
Balance Sheet Date, there has not been:
2.1.10.1. Financial Change2.1.10.1. Financial Change. Any adverse change in
the financial condition, backlog, operations, assets, liabilities or business of
the Company;
2.1.10.2. Property Damage2.1.10.2. Property Damage. Any material damage,
destruction, or loss to the business or properties of the Company (whether or
not covered by insurance); 2.1.10.3. Dividends2.1.10.3. Dividends. Any
declaration, setting aside, or payment of any dividend or other distribution in
respect of the Company Common Stock, or any direct or indirect redemption,
purchase or any other acquisition by the Company of any such stock;
2.1.10.4. Capitalization Change2.1.10.4. Capitalization Change. Any change
in the capital stock or in the number of shares or classes of the Company=s
authorized or outstanding capital stock as described in Section 2.1.3 hereof;
2.1.10.5. Labor Disputes2.1.10.5. Labor Disputes. Any labor or employment
dispute of whatever nature; or
2.1.10.6. Other Material Changes2.1.10.6. Other Material Changes. Any other
event or condition known to either of the Shareholders particularly pertaining
to and adversely affecting the operations, assets or business of the Company.
2.1.11. Taxes2.1.11. Taxes.
2.1.11.1. GeneralGeneral. All federal, state and local income, value added,
sales, use, franchise, gross revenue, turnover, excise, payroll, property,
employment, customs, duties and any and all other tax returns, reports, and
estimates have been filed with appropriate governmental agencies, domestic and
foreign, by the Company for each period for which any such returns, reports, or
estimates were due (taking into account any extensions of time to file before
the date hereof); all such returns are true and correct; the Company has only
done business in Wyoming, Colorado, Nevada, North Dakota, Montana and New
Mexico; all taxes shown by such returns to be payable and any other taxes due
and payable have been paid other than those being contested in good faith by the
Company; and the tax provision reflected in the 6/30 Balance Sheet is adequate,
in accordance with generally accepted accounting principles, to cover
liabilities of the Company at the date thereof for all taxes, including any
assessed interest, assessed penalties and additions to taxes of any character
whatsoever applicable to the Company or its assets or business. No waiver of any
statute of limitations executed by the Company with respect to any income or
other tax is in effect for any period. The income tax returns of the Company
have never been examined by the Internal Revenue Service or the taxing
authorities of any other jurisdiction. There are no tax liens on any assets of
the Company except for taxes not yet currently due. The Company is not subject
to any tax-sharing or allocation agreement. The Company is not and never has
been, a member of a consolidated group subject to Treasury Regulation 1.1502-6
or any similar provision. The Company has not received any notice and has no
knowledge of any proposal for increasing the assessed value of any of the
Company=s properties for tax purposes, or of any pending proceedings or public
improvements which would result in the levy of any special tax or assessment
against any of the Company=s properties.
2.1.11.2. Subchapter S MattersSubchapter S Matters. The Company (i) made an
effective, valid and binding S election pursuant to Section 1362 of the Code
effective August 6, 1975, (ii) has since maintained its status as an
S Corporation pursuant to Section 1361 of the Code without lapse or
interruption, and (iii) has made and continuously maintained elections similar
to the federal S election in each state or local jurisdiction where the Company
does business or is required to file a tax return to the extent such states or
jurisdictions permit such elections. The Company neither is nor will or can be
subject to the built-in gains tax under Section 1374 of the Code or any similar
corporate level tax imposed on the Company by any taxing authority. The Company
(i) has not adopted or utilized LIFO as a method of accounting for inventory,
and (ii) has no other tax item, election, agreement or adjustment which will
accelerate or trigger income or deferred deductions of the Company as a result
of termination of the Company=s status as an S Corporation.
2.1.12. Intellectual Property2.1.12. Intellectual Property. The Company
owns or possesses licenses to use all Intellectual Property that is either
material to the business of the Company or that is necessary for the rendering
of any services rendered by the Company and the use or sale of any equipment or
products used or sold by the Company, including all such Intellectual Property
listed in Schedule 2.1.8 hereto (the ARequired Intellectual Property@). The
Required Intellectual Property is owned or licensed by the Company free and
clear of any Encumbrance. The Company has not granted to any other person any
license to use any Required Intellectual Property. The Company has not
infringed, misappropriated, or conflicted with, the Intellectual Property rights
of others in connection with the use by the Company of the Required Intellectual
Property or otherwise in connection with the Company=s operation of its
business, nor has the Company has received any notice of such infringement,
misappropriation, or conflict such Intellectual Property rights of others.
2.1.13. Title to and Condition of Assets2.1.13. Title to and Condition of
Assets. The Company has good, indefeasible and marketable title to all its
properties, interests in properties and assets, real and personal, reflected in
the 6/30 Balance Sheet or in Schedule 2.1.8 hereto, free and clear of any
Encumbrance of any nature whatsoever, except Encumbrances reflected in the 6/30
Balance Sheet or in Schedule 2.1.8 hereto. All leases pursuant to which the
Company leases (whether as lessee or lessor) any substantial amount of real or
personal property are in good standing, valid, and effective; and there is not,
under any such leases, any existing default or event of default or event which
with notice or lapse of time, or both, would constitute a default by the Company
and in respect to which the Company has not taken adequate steps to prevent a
default from occurring. The buildings and premises of the Company that are used
in its business are in good operating condition and repair, subject only to
ordinary wear and tear. All rigs, rig equipment, machinery, transportation
equipment, tools and other major items of equipment of the Company are in good
operating condition and in a state of good maintenance and repair, ordinary wear
and tear excepted, and are free from any known defects except as may be repaired
by routine maintenance. All such assets conform to all applicable laws governing
their use. The Company has not violated any law, statute, ordinance, or
regulation relating to any such assets, nor has any notice of such violation
been received by the Company or either of the Shareholders, except such as have
been fully complied with.
2.1.14. Contracts.Contracts. All contracts, leases, plans or other
arrangements to which the Company is a party, by which it is bound or to which
it or its assets are subject are in full force and effect, and constitute valid
and binding obligations of the Company. The Company is not, and to the knowledge
of the Company or any of the Shareholders, no other party to any such contract,
lease, plan or other arrangement is, in default thereunder, and no event has
occurred which (with or without notice, lapse of time, or the happening of any
other event) would constitute a default thereunder. No contract has been entered
into on terms which could reasonably be expected to have an adverse effect on
the Company. Neither the Company nor either of the Shareholders has received any
information which would cause such the Company or such Shareholders to conclude
that any customer of the Company will (or is likely to) cease doing business
with the Company (or its successors) as a result of the consummation of the
transactions contemplated hereby.
2.1.15. Licenses and Permits.Licenses and Permits. The Company possesses
all Permits necessary under law or otherwise for the Company to conduct its
business as now being conducted and to construct, own, operate, maintain and use
its assets in the manner in which they are now being constructed, operated,
maintained and used, including all such Permits listed in Schedule 2.1.8 hereto
(collectively, the ARequired Permits@). Each of the Required Permits and the
Company=s rights with respect thereto is valid and subsisting, in full force and
effect, and enforceable by the Company subject to administrative powers of
regulatory agencies having jurisdiction, and will continue will continue in full
force and effect after the Closing Date. The Company is in compliance in all
respects with the terms of each of the Required Permits. None of the Required
Permits have been, or to the knowledge of the Company or either of the
Shareholders, is threatened to be, revoked, canceled, suspended or modified.
2.1.16. Litigation2.1.16. Litigation. Except as set forth in Schedule
2.1.16 hereto, there is no suit, action, or legal, administrative, arbitration,
or other proceeding or governmental investigation pending to which the Company
is a party or, to the knowledge of any of the Company or the Shareholders, might
become a party or which particularly affects the Company or its assets, nor is
any change in the zoning or building ordinances directly affecting the real
property or leasehold interests of the Company, pending or, to the knowledge of
any of the either of the Shareholders, threatened.
2.1.17. Environmental Compliance.Environmental Compliance.
2.1.17.1. Environmental Conditions2.1.17.1. Environmental Conditions. There
are no environmental conditions or circumstances, including, without limitation,
the presence or release of any Substance of Environmental Concern, on any
property presently or previously owned, leased or operated by the Company, or on
any property to which any Substance of Environmental Concern or waste generated
by the Company=s operations or use of its assets were disposed of, which could
have or result in a material adverse effect on the business or business
prospects of the Company. The term ASubstance of Environmental Concern@ means
(a) any gasoline, petroleum (including crude oil or any fraction thereof),
petroleum product, polychlorinated biphenyls, urea-formaldehyde insulation,
asbestos, pollutant, contaminant, radiation, and (b) any other substance of any
kind, whether or not any such substance is defined as toxic or hazardous under
any Environmental Law (as defined in Section 2.1.17.3 hereof), that is regulated
pursuant to or could give rise to liability under any existing Environmental
Law;
2.1.17.2. Permits, etc2.1.17.2. Permits, etc. The Company has, and within
the period of all applicable statutes of limitations has had, in full force and
effect all environmental Permits required to conduct its operations, and is,
within the period of all applicable statutes of limitations has been, operating
in compliance thereunder;
2.1.17.3. Compliance2.1.17.3. Compliance. The Company=s operations and use
of its assets are, and within the period of all applicable statutes of
limitations, have been in compliance with applicable Environmental Law.
AEnvironmental Law@ as used herein means any and all laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, and other legally enforceable
requirements (including, without limitation, common law) of the United States,
or any state, local, municipal or other governmental authority or
quasi-governmental authority, regulating, relating to, or imposing liability or
standards of conduct concerning protection of the environmental or of human
health, or employee health and safety as from time to time has been or is now in
effect;
2.1.17.4. Environmental Claims2.1.17.4. Environmental Claims. No notice has
been received by the Company or either of the Shareholders from any entity,
governmental agency or individual regarding any existing, pending or threatened
investigation, inquiry, enforcement action. litigation, or liability, including,
without limitation any claim for remedial obligations, response costs or
contribution, relating to any Environmental Law;
2.1.17.5. Enforcement.Enforcement. Neither the Company, and to the
knowledge of either of the Shareholders, nor any predecessor of the Company or
any other party acting on behalf of the Company, has entered into or agreed to
any consent, decree, order, settlement or other agreement, nor is subject to any
judgment, decree, order or other agreement, in any judicial, administrative,
arbitral, or other forum, relating to compliance with or liability under any
Environmental Law;
2.1.17.6. Liabilities.Liabilities. The Company has not assumed or retained,
by contract or operation of law, any liabilities of any kind, fixed or
contingent, known or unknown, under any Environmental Law;
2.1.17.7. Renewals2.1.17.7. Renewals. Neither the Company nor either of the
Shareholders knows of any reason the Company (or its successors) would not be
able to renew without material expense any of the permits, licenses, or other
authorizations required pursuant to any Environmental Law to use any of the
Company=s assets or to conduct current or planned operations; and
2.1.17.8. Asbestos and PCBs2.1.17.8. Asbestos and PCBs. No material amounts
of friable asbestos currently exist on any property owned or operated by the
Company, nor do polychlorinated biphenyls exist in concentrations of 50 parts
per million or more in electrical equipment owned or being used by the Company
in its operations or on its properties.
2.1.18. Compliance with Other Laws2.1.18. Compliance with Other Laws. The
Company is not in violation of or in default with respect to, or in alleged
violation of or alleged default with respect to, the Occupational Safety and
Health Act (29 U.S.C. ''651 et seq.) as amended, or any other applicable law or
any applicable rule, regulation, or any writ or decree of any court or any
governmental commission, board, bureau, agency, or instrumentality, or
delinquent with respect to any report required to be filed with any governmental
commission, board, bureau, agency or instrumentality.
2.1.19. No ERISA Plans or Labor Issues2.1.19. No ERISA Plans or Labor
Issues. Except as set forth on Schedule 2.1.19, the Company does not currently
sponsor, maintain or contribute to and has not at any time sponsored, maintained
or contributed to any employee benefit plan which is or was subject to any
provisions of the Employee Retirement Income Security Act of 1974, as amended
(AERISA@). Except as set forth on Schedule 2.1.19, the Company does not maintain
any plan, program, policy, contract or other arrangement that provides
retirement, medical, dental, disability, life insurance or other benefits to any
current or former employees of the Company, including any retired employees, or
their beneficiaries or dependents. The Company is not obligated to pay any
severance or benefits to any employee or former employee of the Company as the
result of any change in the ownership or control of the Company. The Company has
not engaged in any unfair labor practices which could reasonably be expected to
result in an adverse effect on its operations or assets. The Company does not
have any existing dispute with any of its existing or former employees. There
are no existing labor disputes or, to the knowledge of either of the
Shareholders, any disputes threatened by current or former employees of the
Company.
2.1.20. Investigations; Litigation2.1.20. Investigations; Litigation. No
investigation or review by any governmental entity with respect to the Company
or any of the transactions contemplated by this Agreement is pending or, to the
knowledge of the Company or either of the Shareholders, threatened, nor has any
governmental entity indicated to the Company or either of the Shareholders an
intention to conduct the same, and there is no action, suit or proceeding
pending or, to the knowledge of either of the Shareholders, threatened against
or affecting the Company at law or in equity, or before any federal, state,
municipal or other governmental department, commission, board, bureau, agency or
instrumentality, that either individually or in the aggregate, does or is likely
to result in any material adverse change in the financial condition, properties
or business of the Company.
2.1.21. Absence of Certain Business Practices2.1.21. Absence of Certain
Business Practices. Neither the Company nor any officer, employee or agent of
the Company, nor any other person acting on its behalf, has, directly or
indirectly, within the past five years, given or agreed to give any gift or
similar benefit to any customer, supplier, government employee or other person
who is or may be in a position to help or hinder the business of the Company (or
to assist the Company in connection with any actual or proposed transaction)
which (i) might subject the Company to any damage or penalty in any civil,
criminal or governmental litigation or proceeding, (ii) if not given in the
past, might have had a material adverse effect on the assets, business or
operations of the Company as reflected in the Financial Statements, or (iii if
not continued in the future, might materially adversely effect the assets,
business operations or prospects of the Company or which might subject the
Company to suit or penalty in a private or governmental litigation or
proceeding.
2.1.22. No Untrue ▇▇▇▇▇▇▇▇▇▇.▇▇ Untrue Statements. The Company and each of
the Shareholders have made available to Buyer true, complete and correct copies
of all contracts, documents concerning all litigation and administrative
proceedings, licenses, permits, insurance policies, lists of suppliers and
customers, and records relating principally to the Company=s assets and
business, and such information covers all commitments and liabilities of the
Company relating to its business or the assets. This Agreement and the
agreements and instruments to be entered into in connection herewith do not
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements made herein and therein not misleading in
any material respect.
2.1.23. Consents and Approvals.Consents and Approvals. No consent, approval
or authorization of, or filing or registration with, any governmental or
regulatory authority, or any other person or entity other than the Shareholders,
is required to be made or obtained by the Company or either of the Shareholders
in connection with the execution, delivery or performance of this Agreement or
the consummation of the transactions contemplated hereby.
2.1.24. Finder=s Fee2.1.24. Finder=s Fee. All negotiations relative to this
Agreement and the transactions contemplated hereby have been carried on by the
Shareholders and their counsel directly with Buyer and its counsel, without the
intervention of any other person in such manner as to give rise to any valid
claim against any of the parties hereto for a brokerage commission, finder=s fee
or any similar payments.
2.2. Representations and Warranties of Buyer2.2. Representations and
Warranties of Buyer. Buyer represents and warrants to each of the Shareholders
as follows
2.2.1. Organization and Good Standing.Organization and Good Standing. Buyer
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, has full requisite corporate power and authority
to carry on its business as it is currently conducted, and to own and operate
the properties currently owned and operated by it, and is duly qualified or
licensed to do business and is in good standing as a foreign corporation
authorized to do business in all jurisdictions in which the character of the
properties owned or the nature of the business conducted by it would make such
qualification or licensing necessary.
2.2.2. Agreement Authorized and its Effect on Other Obligations.Agreement
Authorized and its Effect on Other Obligations. The consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of Buyer, and this Agreement is a valid
and binding obligation of Buyer enforceable in accordance with its terms. The
execution, delivery and performance of this Agreement by Buyer will not conflict
with or result in a violation or breach of any term or provision of, or
constitute a default under (a) the Certificate of Incorporation or Bylaws of
Buyer or (b) any obligation, indenture, mortgage, deed of trust, lease, contract
or other agreement to which Buyer or any of its property is bound.
2.2.3. Consents and Approvals.Consents and Approvals. No consent, approval
or authorization of, or filing of a registration with, any governmental or
regulatory authority, or any other person or entity is required to be made or
obtained by Buyer in connection with the execution, delivery or performance of
this Agreement or the consummation of the transactions contemplated hereby.
2.2.4. Finder=s FeeFinder=s Fee. All negotiations relative to this
Agreement and the transactions contemplated hereby have been carried on by the
Buyer and their counsel directly with the Shareholders and their counsel,
without the intervention of any other person in such manner as to give rise to
any valid claim against any of the parties hereto for a brokerage commission,
finder=s fee or any similar payments.
ARTICLE 3
Additional Agreements
ARTICLE 3 Additional Agreements
3.1. NoncompetitionNoncompetition. Except as otherwise consented to or
approved in writing by Buyer, each of the Shareholders agrees that for a period
of 60 months from the date hereof, such Shareholder will not, directly or
indirectly, acting alone or as a member of a partnership or as an officer,
director, employee, consultant, representative, holder of, or investor in as
much as 5% of any security of any class of any corporation or other business
entity (i) engage in competition with the well service rig and associated
equipment business conducted by the Company, Buyer or any affiliate of Buyer on
the date hereof in the states of Wyoming, Montana, South Dakota, Colorado,
Nebraska and Utah; (ii) request any present customers or suppliers of the
Company to curtail or cancel their business with Buyer or any affiliate of
Buyer; (iii) disclose to any person, firm or corporation any trade, technical or
technological secrets of the Company, Buyer or any affiliate of Buyer or any
details of their organization or business affairs; or (iv) induce or actively
attempt to influence any employee of the Company, Buyer or any affiliate of
Buyer to terminate his employment. Each of the Shareholders agrees that if
either the length of time or geographical area set forth in this Section 3.1 is
deemed too restrictive in any court proceeding, the court may reduce such
restrictions to those which it deems reasonable under the circumstances. The
obligations expressed in this Section 3.1 are in addition to any other
obligations that the Shareholders may have under the laws of the states in which
they do business requiring an employee of a business or a shareholder who sells
his stock in a corporation (including a disposition in a merger) to limit his
activities so that the goodwill and business relations of his employer and of
the corporation whose stock he has sold (and any successor corporation) will not
be materially impaired. Each of the Shareholders further agrees and acknowledges
that the Company, Buyer and its affiliates do not have any adequate remedy at
law for the breach or threatened breach by such Shareholder of this covenant,
and agree that the Company, Buyer or any affiliate of Buyer may, in addition to
the other remedies which may be available to it hereunder, file a suit in equity
to enjoin such Shareholder from such breach or threatened breach. If any
provisions of this Section 3.1 are held to be invalid or against public policy,
the remaining provisions shall not be affected thereby. Each of the Shareholders
acknowledges that the covenants set forth in this Section 3.1 are being executed
and delivered by such Shareholder in consideration of the covenants of Buyer
contained in this Agreement, and for other good and valuable consideration,
receipt of which is hereby acknowledged.
3.2. Further Assurances.Further Assurances. From time to time, as and when
requested by any party hereto, any other party hereto shall execute and deliver,
or cause to be executed and delivered, such documents and instruments and shall
take, or cause to be taken, such further or other actions as may be reasonably
necessary to effectuate the transactions contemplated hereby.
3.3. Public Announcements.Public Announcements. Except as mutually agreed,
neither Buyer, the Shareholders nor any of their respective Affiliates or agents
shall issue any press release or public announcement regarding the execution of
this Agreement or the transactions contemplated thereby. The Shareholders hereby
consent to Buyer=s issuance of a press release announcing the completion of the
transactions contemplated by this Agreement.
3.4. 338(h)(10) Election.338(h)(10) Election. If the Buyer elects to file
an election to treat the acquisition of the Company Shares as an asset purchase
under Section 338(h)(10) of the Internal Revenue Code of 1986, as amended,
Shareholders agree to execute and deliver to Buyer any documents required to be
executed by Shareholders in connection with such election, and Buyer will
compensate and indemnify the Shareholders for any increased tax liability
resulting therefrom. In addition, Buyer will indemnify and reimburse
Shareholders for any additional tax that may be deemed to be paid by
Shareholders on income created by Buyer compensating Shareholders for taxes paid
on a Section 338(h)(10) election increase in asset values.
3.5. Waste Disposal.Waste Disposal. At Casper, Riverton and ▇▇▇▇▇▇▇, there
are unidentified drums and containers as specified in the Phase I Environmental
Site Assessment Report dated September 15, 1997 prepared by ▇▇▇▇▇▇▇▇▇
Environmental Services, L.L.C. (the APhase I Report@). The Phase I Report also
documents unknown material on a flatbed trailer at Casper in Photograph Number
4. Seller agrees to identify material contained in all such unidentified drums
and containers and the material on the flatbed trailer at Casper and advise
Buyer of the identity of such material within 14 days of the Closing. Seller
further agrees, at Buyer=s request, to properly characterize and dispose of all
materials specified by Buyer and all empty containers within 30 days of such
request.
ARTICLE 4
Indemnification
ARTICLE 4 Indemnification
4.1. Indemnification by the Shareholders4.1. Indemnification by the
Shareholders. In addition to any other remedies available to Buyer under this
Agreement, or at law or in equity, each of the Shareholders shall jointly and
severally indemnify, defend and hold harmless the Company, Buyer and their
affiliates and their respective officers, directors, employees, agents and
stockholders (collectively, the ABuyer Indemnified Parties@), against and with
respect to any and all claims, costs, damages, losses, expenses, obligations,
liabilities, recoveries, suits, causes of action and deficiencies, including
interest, penalties and reasonable fees and expenses of attorneys, consultants
and experts (collectively, the ADamages@) that the Buyer Indemnified Parties
shall incur or suffer, which arise, result from or relate to any breach by
either of the Shareholders of (or the failure of either of the Shareholders to
perform) their respective representations, warranties, covenants or agreements
in this Agreement or in any schedule, certificate, exhibit or other instrument
furnished or delivered to Buyer by either of the Shareholders under this
Agreement.
4.2. Indemnification by Buyer4.2. Indemnification by Buyer. In addition to
any other remedies available to the Shareholders under this Agreement, or at law
or in equity, Buyer shall indemnify, defend and hold harmless each of the
Shareholders against and with respect to any and all Damages that such
indemnitees shall incur or suffer, which arise, result from or relate to any
breach of, or failure by Buyer to perform, any of its representations,
warranties, covenants or agreements in this Agreement or in any schedule,
certificate, exhibit or other instrument furnished or delivered to either of the
Shareholders by or on behalf of Buyer under this Agreement.
4.3. Indemnification Procedure4.3. Indemnification Procedure. In the event
that any party hereto discovers or otherwise becomes aware of an indemnification
claim arising under this Article ?, such indemnified party shall give written
notice to the indemnifying party, specifying such claim, and may thereafter
exercise any remedies available to such party under this Agreement; provided,
however, that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of any obligations hereunder, to
the extent the indemnifying party is not materially prejudiced thereby. Further,
promptly after receipt by an indemnified party hereunder of written notice of
the commencement of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Article ?, such indemnified party
shall, if a claim in respect thereof is to be made against any indemnifying
party, give written notice to the latter of the commencement of such action;
provided, however, that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of any obligations
hereunder, to the extent the indemnifying party is not materially prejudiced
thereby. In case any such action is brought against an indemnified party, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified, to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after such notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof unless the indemnifying party has failed to assume the defense
of such claim and to employ counsel reasonably satisfactory to such indemnified
person. An indemnifying party who elects not to assume the defense of a claim
shall not be liable for the fees and expenses of more than one counsel in any
single jurisdiction for all parties indemnified by such indemnifying party with
respect to such claim or with respect to claims separate but similar or related
in the same jurisdiction arising out of the same general allegations.
Notwithstanding any of the foregoing to the contrary, the indemnified party will
be entitled to select its own counsel and assume the defense of any action
brought against it if the indemnifying party fails to select counsel reasonably
satisfactory to the indemnified party, the expenses of such defense to be paid
by the indemnifying party. No indemnifying party shall consent to entry of any
judgment or enter into any settlement with respect to a claim without the
consent of the indemnified party, which consent shall not be unreasonably
withheld, or unless such judgment or settlement includes as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability with respect to such claim. No indemnified party
shall consent to entry of any judgment or enter into any settlement of any such
action, the defense of which has been assumed by an indemnifying party, without
the consent of such indemnifying party, which consent shall not be unreasonably
withheld or delayed.
ARTICLE 5
Miscellaneous
ARTICLE 5 Miscellaneous
5.1. Survival of Representations, Warranties and Covenants5.1. Survival of
Representations, Warranties and Covenants. All representations, warranties,
covenants and agreements made by the parties hereto shall survive indefinitely
without limitation, notwithstanding any investigation made by or on behalf of
any of the parties hereto. All statements contained in any certificate,
schedule, exhibit or other instrument delivered pursuant to this Agreement shall
be deemed to have been representations and warranties by the respective party or
parties, as the case may be, and shall also survive indefinitely despite any
investigation made by any party hereto or on its behalf.
5.2. Entirety5.2. Entirety. This Agreement embodies the entire agreement
among the parties with respect to the subject matter hereof, and all prior
agreements between the parties with respect thereto are hereby superseded in
their entirety.
5.3. Counterparts.Counterparts. Any number of counterparts of this
Agreement may be executed and each such counterpart shall be deemed to be an
original instrument, but all such counterparts together shall constitute but one
instrument.
5.4. Notices and Waivers.Notices and Waivers. Any notice or waiver to be
given to any party hereto shall be in writing and shall be delivered by courier,
sent by facsimile transmission or first class registered or certified mail,
postage prepaid, return receipt requested:
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If to Buyer:
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Addressed to: With a copy to:
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Key Rocky Mountain, Inc. ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
Two Tower Center, Tenth Floor 700 Louisiana, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: General Counsel Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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If to ▇▇▇▇▇ ▇. Bummer or the Family Trust:
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Addressed to: With a copy to:
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▇▇▇▇▇ ▇. Bummer ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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If to ▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇:
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Addressed to: With a copy to:
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▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
6220 S. Walnut ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Any communication so addressed and mailed by first-class registered or
certified mail, postage prepaid, with return receipt requested, shall be deemed
to be received on the third business day after so mailed, and if delivered by
courier or facsimile to such address, upon delivery during normal business hours
on any business day.
5.5. Table of Contents and Captions.Table of Contents and Captions. The
table of contents and captions contained in this Agreement are solely for
convenient reference and shall not be deemed to affect the meaning or
interpretation of any article, section, or paragraph hereof.
5.6. Successors and Assigns.Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of and be enforceable by the
successors and assigns of the parties hereto.
5.7. Severability.Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void, or unenforceable, the remainder of the terms, provisions,
covenants and restrictions shall remain in full force and effect and shall in no
way be affected, impaired or invalidated. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, void or unenforceable.
5.8. Applicable Law.Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with the applicable laws of the State of
Wyoming.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Shareholders have executed this Agreement and the
Buyer has caused this Agreement to be signed in its corporate name by its duly
authorized representative, all as of the day and year first above written.
BUYER:
KEY ROCKY MOUNTAIN, INC.
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
SHAREHOLDERS:
▇▇▇▇▇ Bummer, 7/14/82 Family Trust
▇▇▇▇▇ Bummer, Trustee
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. Bummer