EXHIBIT 10.118
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PURCHASE AGREEMENT
BETWEEN
LATEX RESOURCES, INC.,
AND
IMPERIAL PETROLEUM, INC.
SEPTEMBER 30, 1996
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PURCHASE AGREEMENT
This Purchase Agreement is entered into this 30th day of September,
1996, by and among LATEX RESOURCES, INC., a Delaware corporation ("LRI") and
IMPERIAL PETROLEUM, INC., a Nevada Corporation ("Imperial").
WITNESSETH:
WHEREAS,, LRI has entered into an Agreement and Plan of Merger dated
August 9, 1996 with Alliance Resources Plc ("ARP"), pursuant to which LRI
will merge with a United States subsidiary of ARP, the terms of which require,
among others, that LRI divest itself of certain assets consisting of the capital
stock of certain corporations; and
WHEREAS, Imperial is willing to acquire the capital stock of certain
corporations held by LRI, including shares of common stock of Imperial, in order
to further Imperial's business operations and LRI desires to sell such capital
stock to Imperial on the terms set forth in this Agreement.
NOW, THEREFORE, In consideration of the premises and in consideration
of the agreements and benefits set forth herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, Imperial and LRI
agree as follows.
1. Definitions
1.01 "Affiliate" means any person which, directly or indirectly,
controls, is controlled by or is under common control of the referenced party. A
person shall be deemed to be "controlled by" any other person if such other
person possesses, directly or indirectly, power (a) to vote 10% or more of the
securities (on a fully diluted basis) having ordinary voting power for the
election of directors or managing general partners; or (b) to direct or cause
the direction of the management and policies of such person whether by contract
or otherwise.
1.02 "Business Day" means any day other than a day on which national
banks domiciled in Tulsa, Oklahoma are authorized to close.
1.03 "Closing" shall have the meaning given in Section 2.03.
1.04 "Closing Date" shall have the meaning given in Section 2.03.
1.05 "Imperial" means Imperial Petroleum, Inc., a Nevada corporation,
and its Subsidiaries.
1.06 "LRI" means LaTex Resources, Inc., a Delaware corporation.
1.07 "1933 Act" shall mean the Securities Act of 1933, as amended.
1.08 "Imperial Disclosures Reports" shall have the meaning set forth in
the opening paragraph of Article 3.
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1.09 "Imperial Financial Statements" shall have the meaning set forth
in Section 3.06.
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1.10 "Imperial Public Reports" shall have the meaning set forth in
Section 3.05.
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1.11 "GAAP" refers to generally accepted accounting principles as in
effect from time to time in the United States.
1.12 "Indemnitee" means any person which may be entitled to seek
indemnification pursuant to the provisions of Section 8 of this Agreement.
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1.13 "Indemnitor" means any person which may be obligated to provide
indemnification pursuant to Section 8 of this Agreement.
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1.14 "Knowledge" means either (a) the actual knowledge, or (b) an
objective standard of knowledge which imputes knowledge because a reasonable
investigation of files and records would have disclosed the matter to which the
statement relates.
1.15 "LRI Disclosure Reports" has the meaning set forth in the opening
paragraph of Article 4 of this Agreement.
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1.16 "LRI Financial Statements" shall have the meaning set forth in
Section 4.06.
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1.17 "LRI Public Reports" shall have the meaning set forth in Section
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4.05.
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1.18 "LRI Shares" shall have the meaning set forth in Section 2.02.
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1.19 "Liability" means and includes any direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, whether known or unknown, fixed or unfixed, conditional or
unconditional, ▇▇▇▇▇▇ or inchoate, liquidated or unliquidated, secured or
unsecured, accrued, absolute, contingent or otherwise (including, without
limitation, reasonable fees and expenses of counsel).
1.20 "Losses" means any and all direct or indirect demands, claims,
payments, obligations, actions or causes of action, assessments, losses,
Liabilities, costs and expenses paid or incurred or diminutions in value of any
kind or character (whether or not known or asserted prior to the date hereof,
fixed or unfixed, conditional or unconditional, ▇▇▇▇▇▇ or inchoate, liquidated
or unliquidated, secured or unsecured, accrued, absolute, contingent or
otherwise), including without limitation, penalties, interest on any amount
payable to a third party (which will include claims by governmental entities and
agencies) as a result of the foregoing and any legal or other expenses
reasonably incurred in connection with investigating or defending any claims or
actions, whether or not resulting in any Liability, and all amounts
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paid in settlement of claims or actions arising under Section 7 of this
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Agreement; provided, however, that Losses shall be net of any insurance proceeds
received by an Indemnitee on account of such Losses (after taking into account
any costs incurred in obtaining such proceeds and any increase in insurance
premiums as a result of a claim with respect to such proceeds); provided,
however, nothing in Section 7 of this Agreement shall require an Indemnitee to
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proceed against its insurance carrier or to maintain insurance of any kind.
1.21 "SEC" means the Securities and Exchange Commission.
1.22 "Securities Exchange Act" means the Securities Exchange Act of
1934, as amended.
1.23 "Sold Shares" has the meaning set forth in Section 2.01.
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1.24 "Sold Companies" has the meaning set forth in Section 2.01.
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1.25 "Subsidiary" means any corporation with respect to which a
specified person (or a Subsidiary thereof) owns a majority of the common stock
or has the power to vote or direct the voting of sufficient securities to elect
a majority of the directors.
1.26 "Third Party Claims" means any and all Losses (other than loss of
expected or anticipated profit) which arise out of or result from (i) any claims
or actions asserted against an Indemnitee by a third party, (ii) any rights of a
third party asserted against an Indemnitee, or (iii) any Liabilities of, or
amounts payable by an Indemnitee to a third party arising out of clauses (i) or
(ii).
2. Purchase and Sale
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2.01 Purchase and Sale of Sold Shares. On and subject to the terms and
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conditions of this Agreement, Imperial agrees to purchase from LRI and LRI
agrees to sell, assign, transfer, convey and deliver to Imperial at Closing all
of LRI's right, title and interest in and to the shares of capital stock
(collectively the "Sold Shares") of each company (collectively, the "Sold
Companies") as follows:
(a) 5,000,000 shares of common stock of Wexford Technology,
Inc., a Utah corporation ("Wexford"), representing approximately 32.3% of the
issued and outstanding common stock of Wexford;
(b) 3,798,730 shares of common stock of Imperial, representing
approximately 13% of the issued and outstanding common stock of Imperial;
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(c) 5,000 shares of common stock of LaTex Resources International,
Inc., a Delaware corporation ("LaTex International"), representing 100% of the
issued and outstanding common stock of LaTex International; and
(d) 30,000 shares of common stock of Phoenix Metals, Inc., a
Texas corporation ("Phoenix Metals"), representing 100% of the issued and
outstanding common stock of Phoenix Metals.
2.02 Sold Shares Purchase Price. In full consideration for the purchase
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by Imperial from LRI of the Sold Shares, Imperial shall sell, assign, transfer,
convey and deliver to LRI at Closing all of Imperial's right, title and interest
in and to 100,000 shares of LRI common stock (the "LRI Shares").
2.03 Closing. The purchase and sale referenced in Sections 2.01 of this
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Agreement shall take place at 10:00 a.m. at the offices of Pray, Walker,
Jackman, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, on _____,
1996, or at such other time or place as the parties hereto shall by written
instrument designate. Such purchase and sale is referred to in this Agreement as
the "Closing" and the time and date of the closing are referred to in this
Agreement as the "Closing Date".
2.04 Closing Deliveries by LRI. At Closing, LRI will deliver to
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Imperial:
(a) the stock certificates for the Sold Shares for each Sold
Company as provided in Section 2.01 of this Agreement, duly endorsed to Imperial
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or accompanied by duly executed stock powers;
(b) certified copies of corporate resolutions and other corporate
proceedings taken by LRI to authorize the execution, delivery and performance of
this Agreement;
(c) all files and records, including without limitation, bank
records, stock records, corporate records, financial records, contracts,
agreements, assignments, receipts, deeds, leases (including all lease,
production, reserve and other files and records relating to the oil, gas or
other mineral properties) and correspondence and any other documents or files in
the possession of LRI which in any way relate to the current or former
operations of the Sold Companies and/or any of their predecessors; provided,
that such delivery may be made to a location other than the location of Closing
upon mutual agreement of LRI and Imperial;
(d) a certificate of corporate good standing for LRI from the
Secretary of State of the state of Delaware; and
(e) all other documents, instruments and writings required to
be delivered by LRI pursuant to Section 2.08 and any other provision of this
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Agreement.
2.05 Closing Deliveries by Imperial. At Closing, Imperial will deliver
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to LRI:
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(a) the stock certificates for the LRI Shares as provided in
Section 2.02 of this Agreement duly endorsed to LRI or accompanied by a duly
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executed stock power;
(b) certified copies of corporate resolutions and other corporate
proceedings taken by Imperial to authorize the execution, delivery and
performance of this Agreement;
(c) a certificate of corporate good standing for Imperial from the
Secretary of State of the state of Nevada; and
(d) all other documents, instruments and writings required to
be delivered by Imperial pursuant to Section 2.07 and any other provision of
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this Agreement.
2.06 General Conditions to Closing. The obligations of the parties to
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effect the Closing shall be subject to the following conditions:
(a) Board of Directors of LRI and the Board of Directors of
Imperial shall have each approved this Agreement in accordance to the provisions
of applicable state law;
(b) no action, suit or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any federal,
state, local or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, filing or charge would (i)
prevent consummation of any of the transactions contemplated by this Agreement,
(ii) cause any of the transactions contemplated by this Agreement to be
rescinded following consummation, or (iii) affect adversely the right of
Imperial to own or operate the Sold Companies (and no such injunction, judgment,
order, decree, ruling or charge shall be in effect); and
(c) all governmental approvals, the absence of which would have a
materially adverse effect on LRI on a consolidated basis or Imperial, on a
consolidated basis, after the Closing, shall have been received.
2.07 Conditions to LRI's Obligation to Close. The obligations of LRI
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under this Agreement to proceed with the Closing on the Closing Date shall at
all times be subject to the following conditions precedent, any of which may be
waived by LRI in writing:
(a) Imperial shall have executed and delivered to LRI a written
assumption and guaranty of the obligations of Wexford and its subsidiaries,
LaTex International and Phoenix Metals to LRI as set forth on Exhibit A attached
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hereto, in form and substance satisfactory to LRI;
(b) LRI shall have received the written consent of ARP to the
execution, delivery and performance of this Agreement by LRI;
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(c) LRI shall have received the written consent of its principal
lender, Bank of America N.A. or any bank which provides refinancing to LRI of
the indebtedness of LRI to Bank of America, to the execution, delivery and
performance of this Agreement by LRI;
(d) LRI shall have received the written opinion of its investment
banker that the sale of the Sold Shares on the terms set forth in this Agreement
is fair to the shareholders of LRI from a financial point of view;
(e) the representations and warranties of Imperial contained in
Article 3 shall be true and correct in all material respects as of the date of
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this Agreement and as of the Closing Date;
(f) Imperial shall have, in all material respects, performed all
obligations and agreements and complied with all covenants and conditions
contained in this Agreement to be performed or complied with at or prior to the
Closing Date;
(g) Imperial shall have furnished LRI with a certificate, dated
the Closing Date, stating that the representations and warranties of Imperial
contained in Article 3 are true and correct on the Closing Date in all material
respects as if then made;
(h) there shall be no claims, actions, suits or governmental
proceedings (excluding any such matter initiated by LRI) pending, or threatened
to be instituted before any court or governmental agency seeking to restrain,
prohibit or obtain damages or other relief in connection with this Agreement or
the consummation of the transactions contemplated hereby;
(i) all statutory requirements for the valid consummation by
Imperial and LRI of the transactions contemplated by this Agreement shall have
been fulfilled and all authorizations, consents and approvals of all federal,
state or local governmental agencies and authorities and any other person
required to be obtained in order to permit consummation by Imperial and LRI of
the transactions contemplated by this Agreement shall have been obtained and
Imperial shall have obtained and delivered to LRI consents to the transactions
contemplated by this Agreement from the parties to all material contracts which
require such consent;
(j) Between the date of this Agreement and the Closing Date, no
governmental agency, whether federal, state or local, shall have instituted (or
threatened to institute in a writing directed to Imperial or LRI or any of their
respective Subsidiaries or Affiliates) an investigation which is pending at the
Closing Date relating to Imperial or the transactions contemplated by this
Agreement and between the date of this Agreement and the Closing Date no action
or proceeding shall have been instituted or, to the knowledge of Imperial, shall
have been threatened by any party (public or private) before a court or other
governmental body to restrain or prohibit the transactions contemplated by this
Agreement or to obtain damages in respect thereof; and
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(k) all papers, documents, agreements and other items required
by Imperial to be delivered by Imperial at Closing pursuant to Section 2.05
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shall have been delivered by Imperial at Closing.
Nothing contained in this Section 2.07 shall affect LRI's rights under this
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Agreement with respect to the representations, warranties or covenants of
Imperial which survive Closing.
2.08 Conditions to Imperial's Obligation to Close. The obligations of
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Imperial under this Agreement to proceed with the Closing on the Closing Date
shall at all times be subject to the following conditions precedent, any of
which may be waived by Imperial in writing:
(a) the representations and warranties of LRI contained in
Article 4 shall be true and correct in all material respects as of the date of
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this Agreement and as of the Closing Date;
(b) LRI shall have, in all material respects, performed all
obligations and agreements and complied with all covenants and conditions
contained in this Agreement to be performed or complied with at or prior to the
Closing Date;
(c) LRI shall have furnished Imperial with a certificate, dated
the Closing Date, stating that the representations and warranties of LRI
contained in Article 4 are true and correct on the Closing Date in all material
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respects as if then made;
(d) there shall not have occurred (i) any material adverse change
in the business properties, results of operations or in the condition of the
Sold Companies or (ii) any loss or damage to any of the properties or assets
(whether or not covered by insurance), financial condition, business or
properties of the Sold Companies which will eventually affect or impair the
ability of Imperial to conduct the business now being conducted by the Sold
Companies after the Closing;
(e) there shall be no actions, written claims, suits or
governmental proceedings (excluding any such matter initiated by Imperial)
pending, or threatened to be instituted before any court or governmental agency
seeking to restrain, prohibit or obtain damages or other relief in connection
with this agreement or the consummation of the transaction contemplated hereby;
(f) all statutory requirements for the valid consummation by
Imperial and LRI of the transactions contemplated by this Agreement shall have
been fulfilled and all authorizations, consents and approvals of all federal,
state or local governmental agencies and authorities and any other person
required to be obtained in order to permit consummation by Imperial and LRI of
the transactions contemplated by this Agreement shall have been obtained and LRI
shall have obtained and delivered to Imperial consents to the transaction
contemplated by this Agreement from the parties to all material contracts which
require such consents;
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(g) Between the date of this Agreement and the Closing Date, no
governmental agency, whether federal, state or local, shall have instituted (or
threatened to institute in a writing directed to Imperial or LRI or any of their
respective Subsidiaries or Affiliates) an investigation which is pending at the
Closing Date relating to LRI or the transactions contemplated by this Agreement
and between the date of this Agreement and the Closing Date no action or
proceeding shall have been instituted or, to the knowledge of LRI, shall have
been threatened by any party (public or private) before a court or other
governmental body to restrain or prohibit the transactions contemplated by this
Agreement or to obtain damages in respect thereof; and
(h) all papers, documents, agreements and other items required to
be delivered by LRI at Closing pursuant to Section 2.04 shall have been
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delivered by LRI at Closing.
Nothing contained in this Section 2.08 shall affect Imperial's rights under this
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Agreement with respect to the representations, warranties or covenants of LRI
which survive closing.
3. Representations and Warranties Respecting Imperial
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Imperial represents and warrants to LRI that the statements contained
in this Article 3 are correct and complete as of the date of this Agreement and
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will be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Article 3), except as set forth in the Imperial Annual Report on
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Form 10-K for the year ended July 31, 1995 and Quarterly Report on Form 10-Q for
the nine months ended April 30, 1996, each as filed with the SEC and which
accompany this Agreement (the "Imperial Disclosure Reports").
3.01 Organization and Good Standing. Each of Imperial and its
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Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the states of their respective incorporation. Each of
Imperial and its Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation under the laws of each jurisdiction in
which the nature of the business conducted by it or the properties owned,
leased, or operated by it makes such qualification necessary, and in which the
failure to be so qualified or licensed would have a material adverse effect upon
the business, operations, assets or financial condition of Imperial.
3.02 Corporate Power. Each of Imperial and its Subsidiaries has full
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corporate power and authority to carry on the business in which it is engaged
and to own and use the properties owned and used by it. Imperial has full right,
power, authority and legal capacity to execute, deliver and perform this
Agreement and all other agreements contemplated hereby to be executed and
delivered by Imperial. This Agreement and the consummation of the transactions
contemplated hereby have been duly and unanimously approved by the board of
directors of Imperial, and this Agreement has been duly executed and delivered
by Imperial.
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This Agreement constitutes the legal, valid and binding obligation of, and is
enforceable in accordance with its terms against, Imperial except as may be
limited by bankruptcy, liquidation, receivership, conservatorship, insolvency,
reorganization, moratorium or other similar laws affecting creditors rights
generally or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in equity). Neither
Imperial nor any of its Subsidiaries is in default under or in violation of any
provision of its Certificate of Incorporation or Bylaws.
3.03 Capitalization. The entire authorized capital stock of Imperial
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consists of (a) 50,000,000 shares of common stock, par value $0.001 per share,
of which shares are issued and outstanding and shares are held in
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treasury. All of the issued and outstanding shares have been duly authorized,
are validly issued, fully paid, and nonassessable. Except as set forth in the
Imperial Disclosure Reports, there are no outstanding or authorized options,
warrants, rights, contracts, calls, puts, rights to subscribe, conversion rights
or other agreements or commitments to which Imperial is a party or which are
binding upon Imperial providing for the issuance, disposition or acquisition of
any of its capital stock. There are no outstanding or authorized stock
appreciation, phantom stock or similar rights with respect to Imperial. There
are no voting trusts, proxies or any other agreements or understandings with
respect to the voting of the capital stock of Imperial.
3.04 Noncontravention. Neither the execution and the delivery of this
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Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any statute, regulation, rule, judgment, order, decree, stipulation,
injunction, charge or other restriction of any government, governmental agency
or court to which Imperial or any of its assets is subject or any provision of
the Certificate of Incorporation or Bylaws of Imperial or (ii) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel or
require any notice under any contract, lease, sublease, license, sublicense,
franchise, permit, indenture, agreement or mortgage for borrowed money,
instrument of indebtedness, security interest or other arrangement to which
Imperial is a party or by which it is bound or to which any of its assets is
subject or result in the imposition of any security interest upon any of its
assets. Imperial is not required to give any notice to, make any filing with, or
obtain any authorization, consent or approval of any government, governmental
agency or other person in order for Imperial to consummate the transactions
contemplated by this Agreement.
3.05 Filings with the SEC. Since August 1993, Imperial has made all
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filings with the SEC that it has been required to make under the Securities Act
and the Securities Exchange Act (collectively the "Imperial Public Reports"). To
the knowledge of Imperial, each of the Imperial Public Reports has complied with
the Securities Act and the Securities Exchange Act in all material respects. To
the knowledge of Imperial, none of the Imperial Public Reports, as of their
respective dates, contained any untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading.
Imperial has delivered to LRI a
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correct and complete copy of each Imperial Public Report filed by Imperial with
the SEC since July 31, 1994 (together with all exhibits and schedules thereto
and as amended to date).
3.06 Financial Statements. Imperial has filed with the SEC (a) an
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Annual Report on Form 10-K containing audited consolidated balance sheets as of
July 31, 1994 and 1995 and audited statements of income, change in stockholders'
equity and cash flow as of and for the year ended July 31, 1995 and (b) a
Quarterly Report on Form 10-Q containing unaudited balance sheets as of April
30, 1995 and 1996 and unaudited statements of income, change in stockholders
equity and cash flows as of and for the nine months ended April 30, 1996. The
financial statements (collectively, the "Imperial Financial Statements")
included in or incorporated by reference into the referenced Imperial Public
Report (including the related notes and schedules) have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby, present fairly the financial condition of Imperial and its
Subsidiaries as of the indicated dates and the results of operations of Imperial
and its Subsidiaries for the indicated periods, are correct and complete in all
respects, and are consistent with the books and records of Imperial and its
Subsidiaries.
3.07 Ownership of LRI Shares. LRI is the legal and beneficial owner of,
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and has good title to (and has full right and authority to sell and assign) the
LRI Shares and, at Closing, the LRI Shares will be free and clear of all liens,
security interests, options, or other charges or encumbrances.
3.08 Brokers. No agent, broker, investment banker, person or firm
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acting on behalf of the Imperial or Imperial or under its authority is or will
be entitled to any broker's or finder's fee or any other commission or similar
fee directly or indirectly from Imperial or any Affiliate of Imperial in
connection with the transactions contemplated hereby.
3.09 Investment Intent.
(a) Imperial understands and acknowledges the speculative
nature of and substantial risk of loss associated with an investment in the Sold
Shares which may be subject to substantial dilution. Imperial represents and
warrants that the Sold Shares constitute an investment which is suitable and
consistent with its financial condition and that it is able to bear the risks of
such investment for an indefinite period of time, which may include the total
loss of its investment in the Sold Shares. Imperial further represents that
Imperial has adequate means of providing for its current financial needs and
contingencies and no need for liquidity in its investment in the Sold Shares and
that Imperial has sufficient financial and business experience to evaluate the
merits and risks of an investment in the Sold Shares.
(b) Imperial understands and acknowledges that the Sold Shares
have not been, and will not be, registered under the Securities Act or
applicable securities laws of any state and Imperial is aware that no federal or
state agency has made any review, finding or determination regarding the terms
of the acquisition of the Sold Shares nor any
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recommendation or endorsement of the Sold Shares as an investment, and Imperial
must forego the security, if any, that such a review would provide.
(c) Imperial understands and acknowledges that the Sold Shares
are being offered and sold to Imperial under exemptions from registration
provided by the Securities Act and exemptions provided by applicable state
securities laws and Imperial warrants and represents that the Sold Shares are
being acquired by it solely for its own account, for investment purposes only,
and not with a view to or for the resale, distribution, subdivision or
fractionalization thereof. Imperial represents and warrants that it has no
agreement or other arrangement, formal or informal, with any person to sell,
transfer or pledge any part of the Sold Shares or which would guarantee it any
profit or protect it against any loss with respect to the Sold Shares. Further,
Imperial has no plans to enter into any such agreement or arrangement, and,
consequently, it must bear the economic risk of an investment in the Sold Shares
for an indefinite period of time.
3.10 Limitations on Resale or Transfer. Imperial understands and
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acknowledges that the Sold Shares will be "restricted' as defined in Rule 144
under the Securities Act and that it cannot offer to sell, sell or otherwise
transfer or distribute the Sold Shares without registration thereof under both
the Securities Act and any applicable state securities laws, or unless an
exemption is, in the opinion of counsel, available to it under the Securities
Act. Imperial further understands and acknowledges that the restrictions on the
transfer of the Sold Shares will be noted on the books of each Sold Company,
respectively, and that the stock certificates representing the Sold Shares will
bear a written legend setting forth the restriction on the transferability of
the Sold Shares in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933. THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION OF THEM UNDER THE SECURITIES ACT OF 1933, OR AN
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE ACT.
3.11 Independent Investigation and Advisors. Imperial confirms that it
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has received, reviewed, understands and has fully considered (including, without
limitation, the financial statements contained therein) for purposes of its
acquisition of the Sold Shares, the LRI Disclosure Reports. Imperial represents
and warrants that in making the decision to acquire the Sold Shares, it has
relied upon its own independent investigation of the Sold Companies and the
independent investigation by its representatives, including its own professional
legal, tax, and business advisors, and that it and its representatives have been
given the opportunity to examine all relevant documents and to ask questions of
and to receive answers from LRI, or person(s) acting on its behalf, concerning
the terms and conditions of acquisition by Imperial of the Sold Shares and any
other matters concerning an investment in the Sold
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Companies, and to obtain any additional information Imperial deems necessary to
verify the accuracy of the information provided.
3.12 Disclosure. The representations and warranties contained in this
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Article 3 do not contain any untrue statement of a fact or omit to state any
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fact necessary in order to make the statements and information contained in this
Article 3 not misleading.
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4. Representations and Warranties of LRI.
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LRI represents and warrants to Imperial that the statements contained
in this Article 4 are correct and complete as of the date of this Agreement and
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will be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Article 4), except as set forth in the LRI Annual Report on Form
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10-K for the year ended July 31,1995, and Quarterly Report on Form 10-Q for the
nine months ended April 30, 1996, each as filed with the SEC and which accompany
this Agreement (the "LRI Disclosure Reports").
4.01 Organization and Good Standing. LRI is a corporation duly
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organized, validly existing and in good standing under the laws of Delaware, and
is duly qualified to conduct business as a foreign corporation and is in good
standing as a foreign corporation under the laws of each jurisdiction in which
the nature of the business conducted by it or the properties owned, leased, or
operated by it makes such qualification necessary, and in which the failure to
be so qualified or licensed would have a material adverse effect upon the
business, operations, assets or financial condition of LRI.
4.02 Corporate Power. LRI has all requisite power and authority to own,
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lease and operate its properties and to carry on its business as now being
conducted. LRI has full right, power, authority and legal capacity to execute,
deliver and perform this Agreement and all other agreements contemplated hereby
to be executed and delivered by LRI. This Agreement and the consummation of the
transaction contemplated hereby have been duly and unanimously approved by the
board of directors of LRI and this Agreement has been duly executed and
delivered by LRI. This Agreement constitutes the legal, valid and binding
obligation of, and is enforceable in accordance with its terms against, LRI
except as may be limited by bankruptcy, liquidation, receivership,
conservatorship, insolvency, reorganization, moratorium or other similar laws
affecting creditors rights generally or by general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law
or in equity). LRI is not in default under or in violation of any provision of
its Certificate of Incorporation or Bylaws.
4.03 Capitalization. The entire authorized capital stock of LRI
--------------
consists of 50,000,000 shares of common stock, par value $0.01 per share, of
which shares are issued and outstanding, and 5,000,000 shares of preferred stock
par value $0.01 per share, of which shares of Series A Convertible Preferred
Stock and Shares of Series B
12
Senior Convertible Preferred Stock are issued and outstanding. All of the issued
and outstanding shares of LRI common and preferred stock have been duly
authorized, are validly issued, fully paid, and non-assessable.
4.04 Noncontravention. Neither the execution and the delivery of this
----------------
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any statute, regulation, rule, judgment, order, decree, stipulation,
injunction, charge or other restriction of any government, governmental agency
or court to which LRI or any of its assets is subject or any provision of its
Certificate of Incorporation or Bylaws or (ii) except for the necessary consents
of Bank of America and ARP; conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel or require any notice under any
contract, lease, sublease, license, sublicense, franchise, permit, indenture,
agreement or mortgage for borrowed money, instrument of indebtedness, security
interest or other arrangement to which LRI is a party or by which it is bound or
to which any of its assets are subject or result in the imposition of any
security interest upon any of its assets. Except for the necessary consents of
Bank of America and ARP, LRI is not required to give any notice to, make any
filing with, or obtain any authorization, consent or approval of any government,
governmental agency or other person in order for LRI to consummate the
transactions contemplated by this Agreement.
4.05 Filings with the SEC. Since December 1991 LRI has made all filings
--------------------
with the SEC that it has been required to make under the Securities Act and the
Securities Exchange Act (collectively the "LRI Public Reports"). To the
knowledge of LRI, each of the LRI Public Reports has complied with the
Securities Act and the Securities Exchange Act in all material respects. To the
knowledge of LRI, none of the LRI Public Reports, as of their respective dates,
contained any untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading. LRI has delivered to
Imperial a correct and complete copy of each LRI Public Report filed by LRI with
the SEC since July 31, 1994 (together with all exhibits and schedules thereto
and as amended to date).
4.06 Financial Statements. LRI has filed with the SEC (a) an Annual
--------------------
Report on Form 10-K containing audited consolidated balance sheets as of July
31, 1994 and 1995 and audited statements of income, change in stockholders'
equity and cash flow as of and for the year ended July 31, 1995 and (b) a
Quarterly Report on Form 10-Q containing unaudited balance sheets as of April
30, 1995 and 1996 and unaudited statements of income, change in stockholders
equity and cash flows as of and for the three months ended April 30, 1996. The
financial statements (collectively, the "LRI Financial Statements") included in
or incorporated by reference into the referenced LRI Public Reports (including
the related notes and schedules) have been prepared in accordance with GAAP
applied on a consistent basis throughout the periods covered thereby, present
fairly the financial condition of LRI and its Subsidiaries as of the indicated
dates and the results of operations of LRI and its Subsidiaries for the
indicated periods, are correct and complete in all respects, and are consistent
with the books and records of LRI and its Subsidiaries.
13
4.07 Ownership of Sold Shares. LRI is the legal and beneficial owner
------------------------
of, and has good title to (and has full right and authority to sell and assign)
the Sold Shares and, at closing, the Sold Shares will be free and clear of all
liens, security interests, options, or other charges or encumbrances.
5. Covenants Pending Closing
-------------------------
5.01 Access: Information. LRI and Imperial shall each give to the other
-------------------
and to the other's counsel, accountants and other advisors, agents, consultants
and representatives (collectively, "Representatives"), full access, during
normal business hours throughout the period prior to the Closing Date, to all of
the properties, books and records of the other, and will furnish the other
during such period all such information concerning it as the other reasonably
may request including all land, legal, accounting, engineering, financial and
operating and other information with respect to their respective businesses,
assets and obligations. Provided, that any furnishing of such access or
information to LRI and Imperial or their respective Representatives or any
investigation by LRI and Imperial or their respective Representatives shall not
affect the right of LRI and Imperial to rely on the representations and
warranties of the others made in this Agreement and, provided further, that LRI
and Imperial and their respective Representatives shall hold in strict
confidence all documents and information concerning each other so furnished
which is of a trade secret or confidential nature ("Confidential Information")
unless the same shall have become public knowledge other than through disclosure
by LRI and Imperial to which such information relates or its Representatives
and, if the transactions contemplated by this Agreement are not consummated,
such confidence shall be maintained and all such Confidential Information (in
written form) shall be immediately returned to LRI and Imperial from which it
was acquired.
5.02 Notice of Claims. Imperial will promptly advise LRI and LRI will
----------------
promptly advise Imperial, in writing, of the commencement or receipt of any
written claim, litigation, or proceeding against it, or any written threat
thereof, whether covered by insurance or not, (a) when the amount claimed (taken
alone or when added to other claims of which such advice has not therefore been
given) exceeds $5,000, (b) when such claim, litigation, proceeding, or written
threat thereof relates in any way to this Agreement or any of the transactions
contemplated hereby, or (c) when such claim, litigation, proceeding, or written
threat thereof relates in any way to any violation of federal or state
securities laws. No disclosure by any party pursuant to this Section 5.02,
however, shall be deemed to prevent or cure any misrepresentation, breach of
warranty or breach of covenant.
5.03 Consents. LRI and Imperial shall each use their best efforts to
--------
obtain the consent or approval of each person whose consent or approval is
required in connection with the execution, delivery or performance of this
Agreement.
5.04 Regulatory Approvals. LRI and Imperial shall each take all actions
--------------------
necessary and make all filings required to be made with any governmental agency
or authority as a
14
condition to consummation of the transactions contemplated by this Agreement so
that any waiting periods shall have expired and any approvals or permits
required of such agencies or authorities shall have been obtained on or prior to
the Closing Date.
5.05 Cause Conditions to be Satisfied. LRI and Imperial will each use
--------------------------------
their respective best efforts to take all action and to do all things necessary
or appropriate in order to consummate and make effective the transactions
contemplated by this Agreement, including the satisfaction (but not waiver) of
all conditions to the obligations of LRI and Imperial, respectively, set forth
in Sections 2.07 and 2.08 to be satisfied on or prior to the Closing Date.
-------- -------------
6. Termination of Agreement
------------------------
6.01 Termination of Agreement. Notwithstanding approval of this
------------------------
Agreement by the Boards of Directors of both LRI and Imperial, this Agreement
may be terminated and the transactions contemplated hereby abandoned at any time
on or prior to the Closing Date:
(a) by mutual written consent of LRI and Imperial;
(b) by either Imperial or LRI giving written notice to the
other on or before the Closing Date if such party is not satisfied with the
results of its continuing business, legal and accounting due diligence regarding
the other party;
(c) by either LRI or Imperial giving written notice to the
other on or before the Closing Date, if there has been a material breach by the
other of any of its respective representations, warranties or covenants set
forth herein, or a failure of any condition to which the obligations of such
party is subject;
(d) by either LRI or Imperial giving written notice to the
other on or before the Closing Date, if there has occurred an event giving such
parties or party a right to terminate this Agreement pursuant to Section 2.06;
------- ----
or
(e) by either LRI or Imperial if the Closing has not occurred on
or before ___________, 1996 which date may be extended by mutual agreement of
the Boards of Directors of LRI and Imperial unless the failure of such
occurrence shall be due to the failure of the party seeking to terminate this
Agreement to perform or observe the covenants, agreements and conditions hereof
to be performed or observed by such party at or before the closing.
6.02 Effect of Termination. In the event that this Agreement shall be
---------------------
terminated pursuant to Section 6.01 or because of the failure to satisfy any of
------- ----
the conditions specified in Sections 2.07 or 2.08, all further obligations of
---------------------
the parties under this Agreement shall terminate without further liability of
any party to another, and each party will pay all costs and expense incident to
its negotiation and preparation of this Agreement and to its performance of and
15
compliance with all agreements and conditions contained herein or therein on its
part to be performed or complied with, including the fees, expenses and
disbursements of its counsel , provided that (a) the obligations of the parties
contained in Section 5.01 hereof shall survive any such termination and (b)
------- ----
nothing herein shall relieve a breaching or defaulting party from liability for
any such breach or default.
7. Survival and Indemnity.
----------------------
7.01 Survival. All of the representations and warranties of the parties
--------
contained in this Agreement shall survive the Closing Date, even if the damaged
party knew or had reason to know of any misrepresentation or breach of warranty
at the time of the Closing Date, and shall continue in full force and effect for
a period of two years thereafter.
7.02 Indemnity by Imperial. Imperial and its successors and permitted
---------------------
assigns shall, to the fullest extent permitted by law, indemnify, defend and
hold harmless LRI, its officers , directors and employees and their respective
successors and permitted assigns from and against: (a) Losses resulting from
Third Party Claims arising from the breach by Imperial of any representations,
warranties or covenants contained herein and provided that such Third Party
Claims arise and are communicated in writing to Imperial prior to the expiration
of two years following the Closing Date; and (b) Losses resulting from the
breach by Imperial of any representations, warranties or covenants contained
herein and provided that LRI's claim based thereupon is communicated in writing
to Imperial within two years following the Closing Date.
7.03 Indemnity by LRI. LRI and its respective successors and permitted
----------------
assigns shall, to the fullest extent permitted by law, indemnify, defend and
hold harmless Imperial, its officers, directors and employees and their
successors and permitted assigns from and against: (a) Losses resulting from
Third Party Claims arising from the breach by LRI of any representations,
warranties or covenants contained herein and provided that such Third Party
Claims arise and are communicated in writing to LRI prior to the expiration of
two years following the Closing Date; and (b) Losses resulting from the breach
by LRI of any representations, warranties or covenants contained herein and
provided that Imperial's claim based thereupon is communicated in writing to LRI
within two years following the Closing Date.
7.04 Demands. Any Indemnitee hereunder agrees that promptly upon its
-------
discovery of facts giving rise to a claim for indemnity under the provisions of
this Agreement, including receipt by it of notice of any Third Party Claim, with
respect to any matter as to which it claims to be entitled to indemnity under
the provisions of this Agreement, it will give prompt notice thereof in writing
to the Indemnitor, together with a statement of such information respecting any
of the foregoing as it shall have. Such notice shall include a formal demand for
indemnification under this Agreement and shall include an estimate of the amount
of the claim and the appropriate date(s) upon which the breach, act, omission or
event occurred if such amount or date(s) can be reasonably estimated. The
Indemnitor shall not be obligated to
16
indemnify the Indemnitee with respect to any Third Party Claim if the Indemnitee
knowingly failed to notify the Indemnitor thereof in accordance with the
provisions of this Agreement in sufficient time to permit the Indemnitor or its
counsel to defend against such matter and to make a timely response thereto
including, without limitation, any responsive motion or answer to a complaint,
petition, notice or other legal, equitable or administrative process relating to
the Third Party Claim, only insofar as such knowing failure to notify the
Indemnitor actually resulted in prejudice or damage to the Indemnitor.
7.05 Right to Contest and Defend. The Indemnitor is entitled at its
---------------------------
cost and expense to contest and defend by all appropriate legal proceedings any
Third Party Claim with respect to which it is called upon to indemnify an
Indemnitee under the provisions of this Agreement; provided, that notice of the
intention to so contest shall be delivered by the Indemnitor to the Indemnitee
within 20 calendar days from the date of receipt by the Indemnitor of notice by
the Indemnitee of the assertion of the Third Party Claim. Any such contest may
be conducted in the name and on behalf of the Indemnitor or the Indemnitee as
may be appropriate. Such contest shall be conducted by reputable counsel
employed by the Indemnitor, but the Indemnitee shall have the right to
participate in such proceedings and to be represented by counsel of its own
choosing at its sole cost and expense. If the Indemnitee joins in any such
contest, the Indemnitor shall have full authority to determine all action to be
taken with respect thereto; provided, however, that the Indemnitor will not have
the authority to subject the Indemnitee to any obligation whatsoever, other than
the performance of purely ministerial tasks (e.g., the execution of settlement
agreements and other documentation) or obligations not involving material
expense. If the Indemnitor does not elect to contest any such claim, any
Indemnitor shall be bound by the result obtained with respect thereto by the
Indemnitee. At any time after the commencement of the defense of any Third Party
Claim, the Indemnitor may request the Indemnitee to agree in writing to the
abandonment of such contest or to the payment or compromise by the Indemnitor of
the asserted Third Party Claim, whereupon such action shall be taken unless the
Indemnitee determines that the contest should be continued, and so notifies the
Indemnitor in writing within 15 days of such request from the Indemnitor. If the
Indemnitee determines that the contest should be continued, the Indemnitor shall
be liable hereunder only to the extent of the amount that the other party to the
contested Third Party Claim had agreed unconditionally to accept in payment or
compromise as of the time the Indemnitor made its request therefor to the
Indemnitee.
7.06 Cooperation. If requested by the Indemnitor, the Indemnitee agrees
-----------
to cooperate with the Indemnitor and its counsel in contesting any Third Party
Claim that the Indemnitor elects to contest or, if appropriate, in making any
counterclaim against the person asserting the Third Party Claim, or any
cross-complaint against any person, but the Indemnitor will reimburse the
Indemnitee for any expenses incurred by it in so cooperating.
7.07 Right to Participate. The Indemnitor agrees to afford the
--------------------
Indemnitee and its counsel the opportunity to be present at, and to participate
in, conferences with all persons, including governmental authorities, asserting
any Third Party Claim against the Indemnitee or conferences with representatives
of or counsel for such persons.
17
7.08 Payment of Damages. The Indemnitor shall pay to the Indemnitee in
------------------
immediately available funds the amount of any damages to which the Indemnitee
may become entitled by reason of the provisions of this Article 7, such payment
---------
to be made within 10 calendar days after any such amount of damages is finally
determined either by mutual agreement of the parties hereto or the final
unappealable judgment of a court of competent jurisdiction.
7.09 No Insurance: Subrogation. The indemnifications provided in this
-------------------------
Article 7 shall not be construed as a form of insurance and shall be binding
---------
upon and inure to the benefit of Imperial, LRI and its respective Affiliates,
heirs, successors and permitted assigns. To the extent permitted under existing
insurance contracts and applicable laws, Imperial and LRI hereby waive for
themselves, its Affiliates, heirs, successors and permitted assigns, including
without limitation any insurers, any rights to subrogation for Losses arising
from Third Party Claims for which each of them is respectively liable or against
which each respectively indemnifies the other, and, if necessary, said parties
shall obtain waiver of such subrogation from its respective insurers.
8. Miscellaneous
-------------
8.01 Press Releases and Public Announcements. No party shall issue
---------------------------------------
any press release or make any public announcement relating to the subject matter
of this Agreement without the prior written approval of the other parties.
Provided however, that any party may make any public disclosure it believes in
good faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the disclosing party
will use its reasonable efforts to advise the other party prior to making the
disclosure)
8.02 Brokers and Finders. Each party hereto represents that no
-------------------
broker, agent, finder or other party has been retained by either party, and no
brokerage or finder's fees or agent's commissions or other like payment has been
agreed to be paid by him or it in connection with this Agreement or on account
of the transactions contemplated by this Agreement. Each party agrees to
indemnify and hold harmless the other parties from and against any and every
claim arising by breach of the aforesaid representation and warranty and all
costs and expenses, legal or otherwise, which any such party may incur as the
result of any such claim.
8.03 Survival of Representations. All representations, warranties and
---------------------------
agreements contained herein or made in writing by the parties in connection with
the transaction contemplated hereby, except any representation, warranty or
agreement as to which compliance may have been appropriately waived, shall
survive the execution, delivery and Closing of this Agreement.
18
8.04 No Third-Party Beneficiaries. This Agreement shall not confer
----------------------------
any rights or remedies upon any person other than the parties and their
respective successors and permitted assigns.
8.05 Expenses and Attorney Fees. Each party will pay its own expenses
--------------------------
in connection with the transaction contemplated herein, including, without
limiting the generality of the foregoing, legal and accounting fees.
8.06 Partial Invalidity. If any term, covenant or condition of this
------------------
Agreement or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement, or the
application of such term, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each term, covenant or condition of this Agreement shall be
valid and enforced to the fullest extent permitted by law.
8.07 Notices. Any notice relating to this Agreement shall be deemed
-------
sufficiently given and served for all purposes if given by a telegram filed,
charges prepaid, or a writing deposited in the United States Mail, postage
prepaid and registered or certified within the Continental United States,
addressed as follows:
(a) Notices to LRI shall be addressed as follows:
LaTex Resources, Inc.
Suite 1000
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇, Vice President and Chief
Financial Officer
with copy to:
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Pray, Walker, Jackman,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) Notices to Imperial shall be addressed as follows:
19
Imperial Petroleum, Inc.
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman and Chief
Executive Officer
8.08 Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of the parties hereto and no
right or liability or obligation arising hereunder may be assigned by any party
hereto without the prior written consent of the other parties.
8.09 Time of Essence. Time is of the essence as to all of the
---------------
terms, conditions and provisions hereof.
8.10 Law Governing/Fees. This Agreement shall be construed and
------------------
interpreted in accordance with and governed and enforced in all respects by the
laws of the State of Oklahoma. In the event any legal proceeding is instituted
to interpret or enforce the provisions of this Agreement, the prevailing
party(s) shall be entitled to recover its reasonable attorney fees from the
non-prevailing party(s) hereto.
8.11 Headings. The section, subsection and paragraph headings
--------
throughout this Agreement are for convenience and reference only, and the words
contained therein shall not be held to expand, modify, amplify or aid in the
interpretation, construction or meaning of this Agreement.
8.12 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each signed by different persons and all of said counterparts
together shall constitute one and the same instrument, and such instrument shall
be deemed to have been made, executed and delivered on the date first
hereinabove written, irrespective of the time or times when the same or any
counterparts thereof actually may have been executed and delivered.
8.13 Entire Agreement. This writing contains the entire agreement of
----------------
the parties hereto and may not be modified, altered or changed in any manner
whatsoever, except by a written agreement signed by the parties hereto.
20
LaTex Resources, INC.
By: /s/ ▇▇▇▇ ▇ ▇▇▇
-----------------------------
▇▇▇▇ ▇. ▇▇▇,
Vice President and Chief
Financial Officer
IMPERIAL PETROLEUM, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chairman and Chief
Executive Officer
21