Execution Copy
STOCK PURCHASE AGREEMENT
TABLE OF CONTENTS
Page
1. Purchase and Sale of the Shares .................................. 1
2. Consideration .................................................... 1
3. Seller's General Representations and Warranties .................. 1
3.1. Ownership of Shares...................................... 1
3.2. Status of Seller ........................................ 2
3.3. Authorization; Consents; No Violations .................. 2
3.4. No Assumption of Obligations ............................ 2
3.5. Full Disclosure; Correctness and Survival ............... 2
4. Seller's Representations and Warranties Relating to the Company ........ 2
4.1. Corporate Status; Capital Stock; Subsidiaries............ 2
4.2. Financial Statements .................................... 3
4.3. Absence of Liabilities .................................. 3
4.4. Directors and Officers; Agents .......................... 4
4.5. Changes in Business and Other Events .................... 4
4.6. Disputes, Investigations and Litigation ................. 5
4.7. Title to Property ....................................... 5
4.8. Real Property ........................................... 6
4.9. Equipment ............................................... 6
4.10. Real Property Leases .................................... 6
4.11. Personal Property Leases ................................ 6
4.12. Condition of Assets ..................................... 6
4.13. Material Adverse Changes ................................ 6
4.14. Contracts, Agreements, Commitments, Etc. ................ 7
4.15. Compliance with Law; Licenses ........................... 8
4.16. Books and Records ....................................... 8
4.17. Receivables.............................................. 8
4.18. Credit Agreements; Notes ................................ 8
4.19. Insurance ............................................... 8
4.20. Taxes ................................................... 8
4.21. Trademarks; Trade Names ................................. 9
4.22. No Zoning Violations .................................... 9
4.23. Copyrights; Franchises, Etc. ............................ 9
4.24. Violation of Other Instruments .......................... 9
4.25. Pension Plan; Employment Contracts; Labor Unions ........ 9
4.26. Certain Transactions; Other Interests ................... 9
5. Representations and Warranties of Buyer .......................... 10
5.1. Trust Status ............................................ 10
5.2. Authorization; Consents; No Violation; Etc. ............. 10
5.3. Investment Representations .............................. 10
6. Certain Additional Agreements .................................... 10
6.1. Conduct of Business ..................................... 10
6.2. Access to Records........................................ 11
6.3. Preservation of Business ................................ 11
6.4. Assignment of Rights and Warranties ..................... 11
6.5. Release of Company ...................................... 12
6.6. Further Assurances ...................................... 12
6.7. Other Schedules ......................................... 12
6.8. Satisfaction of Conditions .............................. 12
7. Conditions ....................................................... 13
7.1. Conditions to Obligations of Buyer ...................... 13
7.2. Conditions to Obligations of Seller ..................... 14
8. Survival of Representations and Warranties; Indemnity ............ 14
8.1. Survival ................................................ 14
8.2. Seller's Indemnification of Buyer and the Company ....... 14
8.3. Notice to Seller; Defense; Compromise ................... 16
8.4. Other Remedies .......................................... 16
8.5. Set-Off ................................................. 16
8.6. Payment ................................................. 16
8.7. Seller's Access to Records .............................. 16
9. Miscellaneous .................................................... 17
9.1. Closing; Termination .................................... 17
9.2. Risk of Loss ............................................ 17
9.3. Confidential Information ................................ 17
9.4. Finders; Fees and Expenses .............................. 18
9.5. Notices ................................................. 18
9.6. Entire Agreement ........................................ 18
9.7. Non-Waiver .............................................. 18
9.8. Parties in Interest ..................................... 18
9.9. Headings ................................................ 19
9.10. Exhibits and Schedules .................................. 19
9.11. Aid in Litigation ....................................... 19
9.12. Section Designations .................................... 19
9.13. Use of Information....................................... 19
9.14. Governing Law ........................................... 19
Schedules
Schedule 4.1: List of States Where Qualified.....................
Schedule 4.4: Directors and Officers; Agents.....................
Schedule 4.5: Changes in Business and Other Events...............
Schedule 4.6: Disputes, Investigations and Litigation............
Schedule 4.10: Real Property Leases...............................
Schedule 4.11: Personal Property Leases...........................
Schedule 4.14: Contracts, Agreements Commitments, Etc.............
Schedule 4.18: Credit Agreements and Notes Payable of the Company.
Schedule 4.19: Insurance Coverage.................................
Schedule 4.26: Certain Transactions; Other Interests..............
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, made and entered into this 19th day of July,
2004, by and among Continental Resources, Inc., an Oklahoma corporation
("Seller"), and Xxxxxx Xxxx, an individual ("Xxxx") and Xxxx X. Xxxxxx, as
Trustee of the Xxxxxx Xxxx DST Trust (the "DST Trust") and of the Xxxxxx Xxxx HJ
Trust ("the "HJ Trust" and, together with Xxxx and the DST Trust, the "Buyer").
WHEREAS, Seller owns 100 shares (the "Shares") of the Common Stock, without
par value ("Common Stock"), of Continental Gas, Inc., an Oklahoma corporation
(the "Company"), which Shares constitute all of the issued and outstanding
shares of capital stock of the Company; and
WHEREAS, Seller wishes to sell the Shares to Buyer, and Buyer wishes to
purchase the Shares from Seller, subject to all of the provisions of this
Agreement;
NOW THEREFORE, in consideration of their respective covenants herein, of
the warranties and representations set forth herein, and for other valuable
consideration the receipt and sufficiency of which are acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:
1. Purchase and Sale of the Shares. At the Closing (as defined in Section
9.1.1), subject to all conditions and provisions hereof, Seller shall sell,
convey, transfer, assign and deliver the Shares to Buyer, and Buyer shall
purchase and accept the Shares from Seller.
2. Consideration. In consideration of its purchase of the Shares from
Seller, Buyer will, at the Closing, pay an aggregate purchase price of
$22,607,000, which shall be paid in cash to Seller.
3. Seller's General Representations and Warranties. As an inducement to
Buyer to enter into this Agreement and to Purchase the Shares hereunder, Seller
represents, warrants and agrees that:
3.1. Ownership of Shares. Seller has, and will at the Closing have,
good and valid title to the Shares, in full ownership, free and clear of
all, liens, encumbrances, charges, equities, proxies, voting trusts,
restrictions, agreements and imperfections of title. No person or entity
other than Seller has, or will at the Closing have, any interest whatever
in the Shares either of record or beneficially, except such interest as is
created in Buyer by virtue of this Agreement. At and after the Closing,
Buyer will have good and valid title to the Shares, in full ownership,
subject to no, and free and clear of all, liens, encumbrances, charges,
equities, proxies, voting trusts, restrictions, agreements and
imperfections of title other than those, if any, which are solely done or
suffered by Buyer. The certificates representing the shares contain, and
will at the Closing contain, no restrictive legend other than a restricted
securities legend or reference to any agreement or provision of the
Certificate of Incorporation or By-Laws of the Company.
3.2. Status of Seller. The Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Oklahoma. Seller has all requisite powers, authority and legal capacity to
own its properties and assets (including the Shares), to conduct its
business as presently conducted, and to enter into this Agreement and
consummate the transactions contemplated hereby.
3.3. Authorization Consents; No Violations; Etc. The execution and
consummation of this Agreement by Seller have been duly and validly
authorized and approved by all necessary action on the part of Seller. No
approvals, authorizations or consents, other than those already duly
obtained, are necessary to permit Seller to enter into this Agreement and
consummate the transactions contemplated hereby. The execution of this
Agreement and the consummation of the transactions contemplated hereby does
not and will not violate, conflict with or constitute a breach of or
default under the Seller's Certificate of Incorporation or By-Laws, or
under any term or provision of any instrument, contract, commitment,
statute, regulation, or judicial or administrative order, award, judgment
or decree to which Seller is a party or by or to which Seller or any of
Seller's assets (including the Shares) are bound or subject; and does not
and will not result in the creation or imposition of any adverse claim or
interest, or any lien, encumbrance, charge, equity or restriction of any
nature whatever, upon or affecting the Shares, other than as created in
Buyer by virtue of this Agreement. This Agreement has been duly executed on
behalf of Seller, is legal, valid and binding with respect to each Seller,
and is enforceable against Seller in accordance with its terms.
3.4. No Assumption of Obligations. The execution and consummation of
this Agreement by Buyer do not and will not obligate Buyer under or with
respect to, or result in the assumption by Buyer of any obligations of
Seller under or with respect to, any liability, agreement or commitment of
Seller or the Company, including, without limitation, any shareholders' or
similar agreement relating to the ownership of common stock of the Company,
or regulating the business, affairs, properties or finances of the Company.
3.5. Full Disclosure; Correctness and Survival. No representation or
warranty of Seller contained in this Agreement, no exhibit or schedule
referred to in or attached to this Agreement, and no certification or
document furnished or to be furnished in connection with this Agreement or
the transactions contemplated hereby (all of which shall be deemed
representations and warranties hereunder and for all purposes of this
Agreement) contains or will contain any untrue statement of a material
fact, or omits or will omit to state a material fact necessary to make the
statements made, in the circumstances under which they were made, not
misleading. All such representations and warranties (i) are true and
correct as of the date of this Agreement and will be true and correct on
the date of the Closing, and (ii) shall survive the Closing and any audit
or investigation by Buyer.
4. Seller's Representations and Warranties Relating to the Company. As an
inducement to Buyer to enter into this Agreement and to purchase the Shares
hereunder, Seller represents, warrants and agrees that:
4.1. Corporate Status; Capital Stock; Subsidiaries. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Oklahoma. The Company is qualified as a foreign
corporation in good standing under the laws of each other state or
jurisdiction in which, because of property owned or business conducted by
the Company, the Company is required to be qualified to do business. The
Company has in Oklahoma and each such other state or jurisdiction full
power and authority to own or lease (as the case may be) its properties and
assets therein and to conduct its business and operations therein in the
manner in which the same have been and are owned, leased and conducted,
respectively. The Company is qualified to do business as a foreign
corporation in each state or jurisdiction set forth in Schedule 4.1 hereto,
and is not required to be so qualified in any other state or jurisdiction
by virtue of the nature of its business, operations, activities, properties
or assets.
The authorized capital stock of the Company consists of 100 shares of
Common Stock, without par value, of which 100 shares (constituting the
Shares) are issued and outstanding. All of the Shares have been issued in
compliance with all applicable requirements, are duly and validly issued
and are fully paid and non-assessable. The Company holds no treasury shares
and has no subscription, warrant, option, put, call, right or other
agreement, commitment or understanding, either firm or conditional, to
offer, sell, issue or repurchase any of its capital stock or other
securities or obligations. All taxes applicable to the issuance or transfer
of capital stock of the Company have been paid, and no preemptive rights or
other rights applicable to such stock have been violated by any such
issuance or transfer or will be violated by virtue of this Agreement or its
consummation.
The Company has no subsidiaries and has no direct or indirect interest
in the ownership of any corporation, trust, partnership, joint venture,
proprietorship, association or other entity.
4.2. Financial Statements. The unaudited financial statements of the
Company at December 31, 2003, and for the four fiscal years then ended, and
those of the Company at May 31, 2004, and for the five-month period then
ended, copies of all of which financial statements and reports thereon have
been delivered to Buyer, are true and correct in all material respects and
present fairly the financial condition of the Company at such dates and for
such periods and have been prepared in accordance with generally accepted
accounting principles applied consistently during the periods covered
thereby and on a basis consistent with prior periods. Seller will deliver
to Buyer, as soon as available, all monthly financial statements of the
Company that become available prior to the Closing.
4.3. Absence of Liabilities. The Company has and will on the Closing
Date have no debt, liability, obligation or commitment, absolute or
contingent, known or unknown, other than: (a) those set forth (and not
exceeding the amounts so set forth) in the Balance Sheet of the Company at
May 31, 2004 (which Balance Sheet forms part of the financial statements
referred to in Section 4.2) and not paid or discharged after the date
thereof; (b) debts which have been incurred in the ordinary course of
business, consistent with past practices, from June 1, 2004 through the
date of this Agreement, have not been paid or discharged, and do not
constitute a breach or violation of any warranty, representation or
agreement set forth herein; (c) debts which will be, from the date of this
Agreement through the date of the Closing, incurred in the ordinary course
of business, consistent with past practices, not in breach or violation of
any warranty, representation or agreement set forth herein, and not
previously paid or discharged; and (d) those arising and not past due
pursuant to agreements listed on any Schedule hereto, accurate and complete
copies of which have been delivered to Buyer, and with respect to which
there is no default or arrearage and no breach or violation of any
warranty, representation or agreement set forth herein. The aggregate debts
referred to in clauses (b) and (c) above that are unpaid at the Closing
Date will not be a material amount. The Company has no liability as insurer
of the risks of third parties.
4.4. Directors and Officers; Agents. The present directors and
officers of the Company are accurately listed in Schedule 4.4 annexed
hereto. Except as listed in Schedule 4.4, the Company has no outstanding
powers of attorney or similar instruments by which officers or agents are
designated or appointed. All officers serve at the pleasure of the Board of
Directors. The authority of the Company's present directors and officers to
act in its behalf will, upon submission of the resignations of such
persons, cease without further act on the part of the Company.
4.5. Changes in Business and Other Events. Except as fully described
and explained on Schedule 4.5 attached hereto, the Company has not since
May 31, 2004.
4.5.1. Performed or committed itself to perform any act or
entered into or committed itself to enter into any transaction other
than in the ordinary course of its business consistent with past
practices during prior periods;
4.5.2. Increased or agreed to increase any form of compensation,
direct or indirect, to any of its directors, officers, employees or
agents;
4.5.3. Transferred, sold, mortgaged, pledged, encumbered or
disposed of any of its assets other than in the ordinary course of
business;
4.5.4. Made or permitted any amendment or termination of any
material contract, agreement or commitment to which it is a party or
by which it may be bound;
4.5.5. Written off any receivables as worthless or uncollectible;
4.5.6. Paid or accrued or committed itself to pay any bonus,
direct or indirect, or any severance pay to any director, officer,
agent or employee;
4.5.7. Made any capital expenditure or committed to make any
capital expenditure, and the Company' does not have any unfulfilled
commitments to make capital expenditures, whenever made or entered
into;
4.5.8. Distributed any of its assets by means of a declaration or
payment of dividends, redemption or purchase of shares or other
securities, or payment to any pension or profit-sharing fund, or
otherwise;
4.5.9. Paid or become liable to pay any taxes, assessments, fees,
penalties, interest or other governmental (state or federal) charges,
other than in the ordinary course of business;
4.5.10. Issued any security or committed itself to issue any
security;
4.5.11. Been the subject of any order or, to the best of Seller's
knowledge, investigation by any regulatory authority or by the
Oklahoma Tax Commission, the Oklahoma Corporation Commission, the
Justice Department of the United states, or any public or private
consumer protection or other agency, committee or organization; or
been subject within the past three fiscal years to any agreement or
decree with respect to its employment or business or advertising
practices;
4.5.12. Experienced any material casualty or similar loss
(whether or not covered by insurance);
4.5.13. Engaged in any act which, if such act had been taken
after the date of this Agreement, would have violated Section 6.1 of
this Agreement; and
4.6. Disputes, Investigations and Litigation. Except as set forth on
Schedule 4.6 attached hereto, the Company is not:
4.6.1. Involved in any dispute or pending or known threatened
claim or lawsuit or similar proceeding, as plaintiff, defendant or
other party;
4.6.2. The subject of or subject to any known pending or
threatened governmental investigation or claim or similar proceeding,
and none of its officers, directors, stockholders, employees or
customers is so involved in connection with the Company's affairs;
4.6.3. Aware (nor is any Seller aware) of any facts which would
lead to a reasonable belief that such a dispute, claim, lawsuit or
proceeding is likely to arise; or
4.6.4. Subject or party to any judgment, order, writ, injunction
or decree of any court or governmental agency. 4.7. Title to Property.
The property and assets of the Company include:
4.7.1. The assets set forth or reflected in the balance sheet of
the Company at May 31, 2004 except for those disposed of in the
ordinary course of business after the date of such balance sheet at
not less than the fair market value of such asset at the date of
disposition and except for the distribution by the Company to the
Seller of all of the Company's proved oil and natural gas properties;
4.7.2. All other properties and assets presently carried on the
Company's books or used in its business (including, without
limitation, the facts, information, know-how, processes, trade
secrets, customer lists and information and similar confidential
matters referred to in Section 6.9) at any time since its
incorporation, except those disposed of in the ordinary course of
business since that date for adequate consideration;
4.7.3. Certain computer software, permits, licenses and bonds
owned by the Company and used by the Company in the operation of its
(the "Licenses"); and
4.7.4. Certain service contracts, none of which are material to
the operation of the business of the Company (the "Service
Contracts").
As used herein, the term "Contracts" include the Licenses and the
Service Contracts.
The Company has good and valid title to the properties and assets
that it purports to own (including, without limitation, the Contracts)
and has valid leasehold interests in all of its remaining properties
and assets, in each case free and clear of any imperfection of title,
lien, encumbrance, security interest, charge, equity or restriction,
other than liens arising solely by operation of law with respect to
obligations which are not delinquent and the existence of which does
not violate Section 4.3, or liens arising under any security agreement
referred to in and scheduled in accordance with Section 4.14 hereof,
none of which liens secure obligations of any person, firm,
corporation or entity other than the Company.
4.8. Real Property. The Company owns no real property or interests
therein.
4.9. Equipment. The Company maintains complete and accurate records of
all furniture, fixtures and equipment owned by it and the basis upon which
the same is depreciated for tax and book purposes.
4.10. Real Property Leases. Except as set forth in Schedule 4.10, the
Company is not a party to nor bound by any real property leases.
4.11. Personal Property Leases. Except as set forth in Schedule 4.11,
the Company is not a party to nor bound by any lease of furniture,
fixtures, equipment or other personal property.
4.12. Condition of Assets. All of the assets and properties owned or
used by the Company in its business are in the possession of the Company,
are fit for the purposes for which they are intended, and are in good
condition, normal wear and tear excepted.
4.13. Material Adverse Changes. There has been no material adverse
change since May 31, 2004 in the gross revenues, results of operations,
financial condition, business, organization, operations, personnel,
properties or assets of the Company, or in its relationship with customers,
employees, agents, banks or other financial institutions or others with
which it has a business relationship. Neither Seller nor the Company is
aware of any presently-existing facts which could reasonably be expected to
have or cause such a material adverse effect in the future.
4.14. Contracts, Agreements, Commitments, Etc. Schedule 4.14 attached
hereto lists (or incorporates by specific reference to a listing set forth
in any other Schedule attached hereto) all material oral or written
agreements, contracts, commitments and understandings, together with all
amendments and proposed amendments thereto, to which the Company is a party
or by which it or its assets are affected or bound, including (but not
limited to) all such agreements, contracts, commitments and understandings:
(a) with or involving any Seller or any Affiliate of any Seller;
(b) with or relating to the employees, agents or consultants of the
Company;
(c) involving non-competition covenants by or in favor of the Company;
(d) with or involving any labor union or resulting from or relating to
any collective bargaining process;
(e) for or relating to the purchase or sale of capital assets;
(f) for or relating to the lease of personal or real property;
(g) respecting any pension or profit-sharing plan, retirement plan,
stock purchase plan, stock option plan or any similar employee benefit plan
or arrangement, formal or informal and whether covering one or more past or
present employees, agents, consultants, stockholders, directors, or
officers of the Company;
(h) with respect to any guaranty, subordination or similar type
arrangement affecting indebtedness or obligations of the Company or any
other person, firm, corporation, association or other entity;
(i) evidencing any lien or other encumbrance affecting any of the
significant assets and properties, or securing any of the accounts
receivable of the Company;
(j) affecting or regulating the management of the Company or the
powers, rights and duties of its stockholders, directors and officers; and
(k) regulating or affecting the Company's business, properties,
assets, operations, or methods thereof.
Each agreement, contract, commitment and understanding which is or is
required to be listed or referred to in Schedule 4.14 or other Schedules
attached hereto is in full force and effect and constitutes a binding
obligation of the parties thereto in accordance with its terms. Accurate
and complete copies of all such agreements, contracts, commitments and
understandings which are written, and all amendments or proposed amendments
thereto, have been delivered to Buyer. No occurrence or circumstances exist
which constitute or would, with the lapse of time or the giving of notice
or both, constitute a breach or default by the Company under any of it
agreements, contracts, commitments or understandings (whether or not listed
or referred to in Schedule 4.14) or a breach or default by any other party
thereto, nor is there outstanding any notice of default or correction or
termination relating thereto.
4.15. Compliance with Law; Licenses. The business of the Company has
been conducted in accordance with the applicable laws and requirements of
governmental authorities. There is no pending or known threatened
proceeding to modify or revoke any bond, license, permit or registration of
the Company, and no such license, permit or registration is subject to any
outstanding order, decree, judgment, stipulation or known investigation.
The Company holds such licenses, permits and registrations as are necessary
to the conduct of its business, and none thereof is subject to revocation
or forfeiture by virtue of any circumstance existing at any time prior to
the Closing or expected to be existing thereafter.
4.16. Books and Records. The Company has at all times maintained
complete and accurate financial books and records, and books and records
(including minute books and stock records) of its corporate affairs,
including all meetings of and action taken by its directors (including
committees) and stockholders. Accurate copies of such minute books and
stock records of the Company, and of the Certificate of Incorporation and
By-Laws of the Company, have been delivered to Buyer.
4.17. Receivables. Except to the extent reserved against in the
Company's May 31, 2004 balance sheet, the accounts and notes receivable of
the Company are valid and, to the best of Seller's knowledge, collectible
in full when due, are not subject to any defense or offset and have arisen
solely in the ordinary course of its business.
4.18. Credit Agreements; Notes. Schedule 4.18 attached hereto contains
a true and complete list of all credit agreements and notes payable to
which the Company is a party or is bound. There is no default or arrearage
under any such credit agreement or note. The Company is a party to a Term
and Revolving Credit Agreement, dated October 22, 2003, with Union Bank of
California, N.A., Fortis Capital Corp., Xxxxx Fargo Bank Texas, N.A. and
certain other banks (the "Credit Agreement"). At May 31, 2004, the unpaid
principal balance outstanding under the Credit Agreement was $16, 392,857.
At May 31, 2004, the Company was in compliance with all of the covenants
required to be performed by it, and no event of default or default had
occurred and was continuing under the Credit Agreement.
4.19. Insurance. The Company has at all times maintained, and will
continue to maintain through the Closing, adequate comprehensive insurance
coverages on its properties and business, all in amounts sufficient to pay
any claims arising or accruing thereunder prior to the date of the Closing.
Schedule 4.19 attached hereto contains a complete list of all such
insurance coverages maintained, showing the policy numbers, names of
insurers, types and amounts of coverage and expiration dates. All policies
listed in Schedule 4.19 are in full force and effect and there is no
delinquency in the payment of premiums on any such policy. Except as set
forth on Schedule 4.19, neither the Company nor any Seller is aware of the
existence of any facts or circumstances which would lead to a reasonable
belief that any such policies will be cancelled or non-renewable, or that
the premiums payable will be increased.
4.20. Taxes. All tax returns and reports of the Company required by
law to be filed have been filed or valid extensions have been obtained.
Those which have been filed are true and correct, and all taxes shown as
due thereon have been paid. All taxes and other governmental charges with
respect to the Company which are due and payable have been paid or accrued
on its books. There is no pending or known threatened claim against the
Company for payment of additional taxes in excess of the accruals made on
its books with respect thereto. The Company has not executed any
currently-in-force waiver of any statute of limitations against assessments
of taxes, and has no liability whatever with respect to any taxes of any
consolidated group of which the Company is or was, at any time, part. The
Company will not have any liability or contingent liability whatever to any
member of any such consolidated group with respect to any taxes of such
member or any tax savings to the Company or its predecessors resulting from
the filing of a consolidated tax return, other than any liability or
contingent liability (if any) which would be released by virtue of Section
6.5 hereof. Tax returns of the Company have not been audited by the
Internal Revenue Service.
4.21. Trademarks; Trade Names. The Company has no trademarks, service
marks or trade names used by it in connection with its business.
4.22. No Zoning Violation. There is no zoning, building code, or
similar violation pertaining to any of the real properties owned by the
Company or the operation thereof, and there is no pending or threatened
condemnation proceeding with respect to any of such properties.
4.23. Copyrights; Franchises, Etc. The Company has no copyright,
franchise or concession which is material to the conduct of its business,
other than its corporate franchise.
4.24. Violation of Other Instruments. Neither the execution nor the
consummation of this Agreement does or will violate, conflict with or
constitute a breach of any term or provision of the Certificate of
Incorporation or By-Laws of the Company or of any instrument, agreement,
contract, commitment, statute, regulation, judicial or administrative
order, award, judgment or decree to which it is a party or by or to which
it or its assets are subject or bound, or any license, permit or'
registration of the Company, and does not and will not result in the
creation or imposition of any adverse claim or interest, or any lien,
encumbrance, charge, equity or restriction of any nature whatsoever in
favor of any third party upon the assets of the Company.
4.25. Pension Plan; Employment Contracts; Labor Unions. There is no
profit-sharing, pension, stock purchase, stock option, bonus, retirement or
similar employee benefit plan (collectively, "Plans") covering persons
employed by the Company; there are no employment contracts or
understandings, express or implied, covering such personnel or providing
for the payment of specified salaries, bonuses or commissions; and no such
personnel are, or have ever been while employed by the Company, covered by
any collective bargaining or similar agreement with any labor union or
organization.
4.26. Certain Transactions; Other Interests. Except as set forth in
Schedule 4.26, the Company has not, since May 31, 2004, incurred any
payable, debt, obligation or commitment (direct or contingent) to, or
entered into any agreement or transaction with, or had any payable, debt or
obligation to, any of the Seller or any Affiliates of any Seller, except in
each case as a result of transactions entered into in the ordinary course
of the Company's business and on terms not less favorable to the Company
than those which would be available from third parties; and (b) none of the
Seller or Affiliates of any of them has any payable, debt, obligation,
agreement or commitment, direct or contingent, to or with the Company. As
used in this Agreement, the term "Affiliate" means, with respect to a
Seller, any person, partnership, corporation or other entity directly or
indirectly controlling, controlled by or under common control with such
Seller. The Company obtains no goods or services from Seller or their
Affiliates which would not be available to the Company from third persons
on comparable terms. Except as set forth in Schedule 4.26 hereto, and
except as otherwise expressly contemplated by this Agreement, no Seller is
a customer of the Company or has, directly or indirectly, any interest in
(a) any corporation, partnership, proprietorship, association or other
entity which is engaged in a business similar to that of the Company or
which is a customer of the Company, or (b) any contract or agreement to
which the Company is a party or by which it is bound.
5. Representations and Warranties of Buyer. As an inducement to Seller to
enter into this Agreement, Buyer represents, warrants and agrees that:
5.1. Trust Status. Each of the DST Trust and the HJ Trust has full
power and authority to own its properties and assets and to enter into this
Agreement and consummate the transactions contemplated hereby.
5.2. Authorization; Consents; No Violation; Etc. The execution and
consummation of this Agreement by Buyer has been duly and validly
authorized and approved by all necessary partnership action on the part of
each Buyer. No approvals, authorizations or consents, other than those
already duly obtained, are necessary to permit each Buyer to enter into
this Agreement and consummate the transactions contemplated hereby. The
execution of this Agreement and the consummation of the transactions
contemplated hereby do not and will not violate, conflict with or
constitute a breach of or default under any term or provision of the trust
agreement applicable to either the DST Trust or the HJ Trust, or of any
instrument, contract, commitment, statute, regulation, or judicial or
administrative order, award, judgment or decree to which any Buyer is a
party or by or to which any Buyer or the assets of Buyer are bound or
subject. This Agreement has been duly executed in behalf of each Buyer, is
legal, valid and binding with respect to it.
5.3. Investment Representations. Each Buyer represents that it will
acquire the Shares for investment purposes and without any intention of
making a distribution thereof within the meaning of the Securities Act of
1933 or any state securities law. Buyer understands that the Shares will
not be registered under such Act and laws and that no offer, sale, transfer
or encumbrance may be made unless an exemption from such registration is
available to Buyer in connection therewith.
6. Certain Additional Agreements.
6.1. Conduct of Business. Between the date of this Agreement and the
date of the Closing, except as otherwise expressly permitted or required by
this Agreement and except as Buyer otherwise consents to in writing from
time to time, Seller will cause the Company to conduct its business and
affairs only in the ordinary and usual course, consistent with past
practices, and will not permit it to perform any act or enter into any
transaction other than in the ordinary course of business consistent with
past practices. Specifically, but not by way of limitation, the Company
will not (a) acquire or dispose of any assets, other than in the ordinary
course of business; (b) declare or pay any dividend or make any
distribution upon any of its capital stock (other than a distribution of
the Company's proved oil and gas properties to the Seller), or purchase,
redeem or otherwise acquire any of its capital stock; (c) issue or sell any
of its capital stock or grant, issue or create any right, warrant or option
with respect thereto; (d) enter into or amend or modify or terminate any
material contracts or commitments, (e) amend its certificate of
Incorporation or By-Laws; (f) prepay or refinance any indebtedness, account
payable or other obligation; (g) increase the compensation or benefits
payable to or received by any officer, director, agent or employee, (h)
negotiate with anyone concerning, or enter into, any agreement respecting
the merger or consolidation of the Company with or into any other entity or
the sale of all or substantially all of its assets; or (i) perform or fail
to perform any act which would be inconsistent with or result in a breach
of any of the representations or warranties set forth in Section 4 hereof,
as if such representations or warranties were made as of a date subsequent
to such act or failure to act.
6.2. Access to Records. Between the date of this Agreement and the
Closing Date, Seller will cause the Company:
6.2.1. To provide to Buyer, during normal business hours, full
access to all of its properties, assets, books, agreements,
commitments and records;
6.2.2. To furnish Buyer with all information concerning any of
its affairs as Buyer reasonably requests;
6.2.3. To use its best efforts to cause its past and present
auditors and accountants to make available to Buyer all financial
information, including the right to examine all working papers
pertaining to audits, reviews of the books and other financial
information pertaining to it and its predecessors; and
6.2.4. To provide such cooperation as Buyer may reasonably
request in connection with any audit, review or investigation of the
Company by Buyer.
6.3. Preservation of Business. Seller will, and until the Closing will
cause the Company to, use its best efforts to preserve the business of the
Company, the services of its present employees and the good will of its
customers, suppliers and others having business relations with the Company.
6.4. Assignment of Rights and Warranties. Effective at and after the
Closing, Seller hereby assigns to Buyer and subrogates Buyer to (a) all
warranties to which Seller is entitled in connection with the Shares owned
by Seller; (b) all rights (but subject to none of the obligations) of
Seller, if any, arising pursuant to or in connection with all agreements
pursuant to which the Company acquired any of its assets or business; and
(c) all rights, claims and demands, derivative or otherwise, which Seller
has or may have in connection with or arising out of Seller's ownership of
the Shares. Seller has not and will not grant a release of or modify or
limit the enforcement of any of the warranties or rights which are, by
virtue of this Section, assigned to Buyer, or to which Buyer is, by virtue
of this Section or by operation of law, subrogated.
6.5. Release of Company. Effective on and after the Closing, Seller
hereby releases, acquits and forever discharges the Company of and from any
and every claim, debt, demand, liability, action, cause of action or other
obligation which Seller has or may have against, or to which Seller may be
entitled to performance from, the Company by virtue of or arising with
respect to (i) any agreement, transaction, relationship, dealing or other
circumstances which have occurred or occur at any time prior to the
Closing, or (ii) any incorrectness or breach or violation of any warranty
or representation concerning the Company in this Agreement; provided,
however, that the foregoing release shall not apply to any such debt,
demand, liability, action, cause of action or other obligation which is
assigned to Buyer pursuant to Section 6.4, as to all of which Seller's
rights shall be vested in Buyer from and after the Closing.
6.6. Further Assurances. From and after the Closing, Seller shall,
upon request by Buyer, execute and deliver to Buyer such instruments and
documents, and do such further acts and things, as are reasonably necessary
(a) to perfect and evidence in Buyer title to the Shares, and (b) to
perfect and evidence the assignment set forth in Section 6.4, and the
release set forth in Section 6.5.
6.7. Other Schedules. From the date of this Agreement through the
Closing, Seller shall expeditiously prepare and deliver to Buyer such
Schedules (in addition to those required by Section 4 of this Agreement) as
Buyer may reasonably request. Any Schedules so prepared and delivered shall
constitute warranties and representations hereunder.
6.8. Satisfaction of Conditions. Buyer and Seller will use their best
efforts, and Seller will cause the Company to use its best efforts, to
obtain any necessary approvals required for the consummation of the Closing
hereunder, and to satisfy all other conditions to the Closing hereunder
over which it or any of them have influence.
7. Conditions.
7.1. Conditions to Obligations of Buyer. The obligation of Buyer to
proceed with the Closing is subject to the satisfaction, at or prior to the
Closing, of all of the following conditions, unless waived by Buyer:
7.1.1. All statutory requirements for the valid consummation of
the transactions contemplated by this Agreement shall have been
fulfilled; all appropriate orders, consents and approvals from all
regulatory agencies and other governmental authorities whose order,
consent or approval is required by law for the consummation of the
transactions contemplated by this agreement shall have been received;
and the terms of all requisite orders, consents, approvals and
clearances shall then permit the effectuation of the Closing.
7.1.2. The performance by Seller, prior to the Closing, of all
obligations required to be performed by Seller prior to the Closing;
the performance by Seller, at the Closing, of all obligations to be
performed by them or any of them at the Closing; and the correctness
of each of the representations and warranties of Seller under this
Agreement as of the date of this Agreement and as of the Closing Date,
as if made on the Closing Date.
7.1.3. The delivery to Buyer of a certificate dated the Closing
Date, signed by Seller, to the effect that (a) Seller has performed
all obligations required by this Agreement to be performed by Seller
prior to the Closing; (b) each of the warranties and representations
of Seller contained in this Agreement is true and correct on the
Closing Date, as if made on the Closing Date; (c) from the date of
this Agreement through the Closing Date, the Company has conducted its
business in the manner required by Section 6.1 hereof; and (d) there
is no pending or threatened lawsuit, claim, action, proceeding or
investigation against Seller or the Company that relates to this
Agreement or to the transactions herein contemplated.
7.1.4. The requisite lenders under the Seller's credit facility
shall have consented to this transaction and released any security
interest in the Shares.
7.1.5. There shall not be pending or known to Seller to be
threatened any lawsuit, claim, action, proceeding or investigation
against Buyer, Seller or the Company that relates to this Agreement or
to the transactions herein contemplated, or that relates to the
Company (other than as shown on Schedule 4.6).
7.1.6. There shall have been no material adverse change in the
business, assets or financial condition of the Company or in its
relationship with its employees, customers, suppliers, and others with
whom or which it has business relations.
7.1.7. All amounts due to the Company by Seller (as such term is
defined in Section 4.26) shall have been paid in full.
7.2. Conditions to Obligations of Seller. The obligation of the Seller
to proceed with the Closing is subject to the satisfaction, at or prior to
the Closing, of all of the following conditions, unless waived by Seller:
7.2.1. All statutory requirements for the valid consummation of
the transactions contemplated by this Agreement shall have been
fulfilled; all appropriate orders, consents and approvals from all
regulatory agencies and other governmental authorities whose order,
consent or approval is required by law for the consummation of the
transactions contemplated by this agreement shall have been received;
and the terms of all requisite orders, consents, approvals and
clearances shall then permit the effectuation of the Closing.
7.2.2. The requisite lenders under the Seller's credit agreement
shall have consented to this transaction.
7.2.3. The performance by Buyer prior to Closing of all
obligations to be performed by Buyer hereunder prior to the Closing;
the performance by Buyer, at the Closing, of all obligations to be
performed by Buyer hereunder at the Closing; and the correctness of
each of the warranties and representations of Buyer under this
Agreement as of the date of this Agreement and as of the Closing Date,
as if made on the Closing Date.
8. Survival of Representations and Warranties; Indemnity.
8.1. Survival. All statements contained in any certificate or other
instrument delivered by or on behalf of Seller to Buyer (including the
Exhibits and Schedules to this Agreement) or Buyer to Seller pursuant to
this Agreement or in connection with the transactions contemplated hereby
will be deemed to be representations, warranties or covenants, as the case
may be, hereunder. All representations, warranties, covenants and
agreements made by Buyer or Seller in this Agreement (including, without
limiting the generality of the foregoing, the agreements regarding
indemnity set forth below in this Section) or in the certificates or
instruments delivered pursuant hereto or in connection with the
transactions contemplated hereby shall survive the Closing and shall be
unaffected by an investigation made by Buyer or Seller or any knowledge
obtained as a result thereof or otherwise.
8.2. Seller's Indemnification of Buyer and the Company. Seller agrees
that it will pay, defend, indemnify, reimburse and hold harmless Buyer and
the Company and their respective directors, officers, agents and employees
(each sometimes referred to herein as an "Indemnified Party" and
collectively as the "Indemnified Parties") for, from and against any loss,
damage, claim, liability, debt, obligation or expense (including interest,
reasonable legal fees and expenses of litigation or of any other nature)
incurred or suffered or paid by, imposed upon, resulting to or threatened
against any Indemnified Party and which directly or indirectly results
from, arises out of or in connection with, is based upon, or exists by
reason of: (i) the execution, delivery, validity and enforceability of this
Agreement; (ii) any allegation that the execution, delivery or performance
of the this Agreement constituted or constitutes a breach or violation of
any fiduciary duty owed to the Buyer or any Affiliated Entity by its
principal shareholders; (iii) any misrepresentation of facts relating to
Seller or the Company, or the breach, incorrectness, inaccuracy or
violation of any representation or warranty relating to Seller or the
Company (whether contained in this Agreement or in any Exhibit or Schedule
attached or required to be attached hereto or any document or record
delivered pursuant to this Agreement) or any other representation or
warranty made by Seller in this Agreement; or (iv) the existence of any
facts or circumstances which constitutes a breach or violation or
inaccuracy of, incorrectness in, or conflict with any representation or
warranty relating to Seller or the Company (whether contained in this
Agreement or in any Exhibit or Schedule attached or required to be attached
hereto or any document or record delivered pursuant to this Agreement) or
any other representation or warranty made by Seller in this Agreement; or
(v) any breach or default in performance by any Seller of any covenant or
obligation of Seller set forth in this Agreement or any related document.
Without limiting the generality of the foregoing paragraph of this
Section 8.2, Seller's obligation to pay, defend, indemnify, reimburse and
hold harmless Buyer and the Company pursuant to this Section 8.2 applies
to, among other things, the following: (a) any diminution in the value of
the Shares or of the Company or its business or assets, or loss sustained
upon the disposition thereof by Buyer, to the extent such loss or
diminution is caused by or contributed to by any matter contemplated by
this Section 8.2; (b) the existence or claimed existence of any debt,
liability, obligation or commitment of the Company other than those whose
existence does not violate any representation or warranty in this Agreement
or in any Exhibit or Schedule attached or required to be attached hereto or
in any document or record delivered pursuant to this Agreement; (c) all
actions, suits, proceedings, demands, assessments and judgments relating to
or incident to any matter contemplated in this Section 8.2 and all costs
and expenses (including attorney's fees) related thereto; (d) any claim by
any person, firm, association, corporation or other entity of any interest
in, or rights with respect to, the Shares or to any portion of the
Company's business, to the extent arising by virtue of facts or
circumstances existing at or prior to the time of the Closing; (e) any
loss, damage, claim, liability, debt, obligation or expense which arises by
virtue of occurrences prior to the Closing, whether or not known at the
time of the Closing (such as, for example but without limitation, lawsuits
filed after the closing alleging that occurrences prior to the Closing
create a liability of, or result in a loss to, the Company or of Buyer with
respect to the Company); (f) any tax audit or tax or other investigation
of the Company or its business, if and to the extent such audit or
investigation relates to periods prior to the closing; (g) any claim by
anyone that such person is entitled to be indemnified by the Company in
accordance with the Company's By-Laws or otherwise, with respect to any act
or omission prior to the Closing; and (h) the uncollectibility of any
account receivable of the Company and not reserved against in the May 31,
2004 balance sheet of the Company. The listing set forth in subsections (a)
through (h) above is illustrative only and shall not limit or restrict the
provisions of the preceding paragraph of this Section 8.2.
In addition to the foregoing, Seller shall pay to the Indemnified
Party interest on the amount of any loss, damage, claim, liability, debt,
obligation or expense the payment of which is or becomes due to the
Indemnified Party by Seller, such interest to be at a floating rate of
interest equal to 2% over prime rate announced from time to time by
MidFirst Bank, Oklahoma City, Oklahoma, and to accrue from the Closing Date
until the date the same is paid by Seller. If the matter for which an
Indemnified Party is indemnified involves a claim by a third party, then
Seller shall, as part of such indemnity, pay any interest, penalties or
fees becoming due to such third party.
8.3. Notice to Seller; Defense; Compromise. An Indemnified Party shall
notify Seller of any matter with respect to which such Indemnified Party
has rights pursuant to Section 8.2, and shall endeavor to give such notice
as soon as practicable after determining that such rights exist with
respect to such matter. If such matter involves a claim, action, suit or
proceeding by a third party against an Indemnified Party, then such
Indemnified Party shall afford Seller the opportunity (i) jointly to
participate in the defense of same, at the expense of Seller, if the
Indemnified Party determines to participate in the defense of same (in
which event counsel selected by the Indemnified Party, who shall be
reasonably satisfactory to Seller, shall be lead counsel and shall be paid
by Seller), or (ii) to control the defense of same, at the expense of
Seller, through counsel selected by Seller and reasonably satisfactory to
the Indemnified Party, if the Indemnified Party determines not to
participate in the defense of same. Seller and the Indemnified Parties
agree to cooperate fully in the conduct of any such claim, action, suit or
proceeding or negotiation, compromise or settlement thereof, but no such
compromise or settlement shall be made without the express prior written
consent of the Indemnified Party.
8.4. Other Remedies. Section 8.2 of this Agreement shall be lieu of,
such other remedies as may be laws. Without limitation, Buyer shall this
Agreement by specific enforcement demonstrating inadequacy of damages or
the remedies provided by in addition to, and not in available under
applicable be entitled to enforce without the necessity of irreparable
harm.
8.5. Set-Off. Buyer shall be entitled to setoff, against payment of
any amounts payable by it to any of the Seller pursuant to this Agreement,
all amounts to which Buyer or the Company is entitled to payment from
Seller in accordance with the provisions of Section 8 of this Agreement.
Buyer or the Company, as the case may be, will when practicable give Seller
notice of set-off at least 15 days prior to the due date of any payment as
to which set-off is to be applied.
8.6. Payment. Claims for indemnification involving the payment of
money by Seller to an Indemnified Party shall be paid by Seller within ten
days after notification thereof; claims for indemnification involving
amounts due to third parties shall be promptly paid by Seller when due,
subject to Seller's right to contest the same in good faith.
8.7. Seller's Access to Records. From and after the Closing, Buyer
shall and shall cause the Company to make available to Seller at reasonable
times and at such reason able place as Buyer or the Company designates any
available records of the Company that are reasonably required by Seller for
the purpose of ascertaining the validity of any claim for indemnification
hereunder or of defending against any claim by third parties for which
indemnification hereunder is provided.
9. Miscellaneous.
9.1. Closing; Termination.
9.1.1. As used in this Agreement, the "Closing" means the events
by which the purchase and sale contemplated by Section 1 of this
Agreement are consummated. The Closing shall, subject to the
satisfaction or waiver of all conditions herein contained, occur on
July 21, 2004, at two o'clock P.M. (local time), at 000 Xxxxx
Xxxxxxxxxxxx, Xxxx, Xxxxxxxx 00000, or at such other date, time and/or
place as may mutually be agreed by Buyer and Seller. Either Buyer or
Seller may on one occasion postpone the Closing for up to 10 days if
necessary to permit the occurrence of any conditions to the Closing,
in which event the Closing shall occur on a date designated by the
party or parties declaring such delay, who or which shall notify the
other parties thereof at least 5 days prior to such designated date.
The date on which the Closing occurs is herein called the "Closing
Date". At the Closing, each of the Seller shall sell, convey,
transfer, assign and deliver to Buyer the entire right, title and
interest of such Seller in and to the Shares, and shall deliver to
Buyer a certificate or certificates representing such Shares,
registered in the name of Seller, together with attached stock powers
duly executed by Seller for transfer of the Shares to Buyer (with
signature guaranteed by a national bank or member firm of the New York
Stock Exchange), and all of the minute books, stock records, corporate
seal and other corporate records and instruments of the Company as may
be in the possession of Seller. Any transaction, stamp, transfer or
similar tax payable with respect to the transfer of the Shares from
Seller to Buyer shall be paid by Seller.
9.1.2. Buyer, if it is not in default of this Agreement or if
Seller is in default of same, or Seller, if it is not in default of
this Agreement or if Buyer is in default of same, may terminate this
Agreement if the Closing has not occurred by July 21, 2004, or if
the conditions to Closing set forth in Sections 7.1.1 and 7.2.1 cannot
be satisfied by that date. Upon any such termination, or any
termination by Buyer pursuant to Section 9.2, neither party shall have
any liability to the other under the provisions of this Agreement,
except for any such liability as may have accrued through the date on
which termination is declared, and any liability under the Sections of
this Agreement that survive such termination.
The following Sections shall survive termination of this Agreement: Section 3,
Section 8 and Section 9.
9.2. Risk of Loss. All risk of loss to the Shares shall remain in
Seller until the Closing. In the event of any material loss or material
adverse change with respect to the assets, business, properties, financial
condition or operations of the Company prior to the Closing, Buyer shall be
entitled to terminate this Agreement.
9.3. Confidential Information. Each party agrees not to disclose any
confidential information or trade secrets received by it from any other
party pursuant to the terms of this Agreement except as may be required by
governmental authority or court order. If this Agreement is terminated for
any reason, each party will continue to hold such information in confidence
and will, to the extent requested by the party from which the information
was received, promptly return to the latter party all written material
received from it.
9.4. Finders; Fees and Expenses. No party hereto has, directly or
indirectly, dealt with anyone acting as a broker, finder or in a similar
capacity, or has incurred any obligation for any brokerage, finders' or
similar fee or commission in connection with this Agreement or any
transaction contemplated hereby. Except as otherwise provided in Section 8,
Buyer and Seller shall bear their respective legal and accounting fees and
expenses incurred in connection with this Agreement and the transactions
herein contemplated. No such fees shall be charged or allocated by Seller
to the Company.
9.5. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given when sent by
personal delivery, telex, cable or certified or registered mail, postage
prepaid, addressed as follows:
9.5.1. If to Buyer, to:
x/x Xxxxxx Xxxx
000 Xxxxx Xxxxxxxxxxxx
Xxxx, Xxxxxxxx 00000
9.5.2. If to Seller, to:
Continental Resources, Inc.
000 Xxxxx Xxxxxxxxxxxx
Xxxx, Xxxxxxxx 00000
The addresses to which notices or copies are to be sent may be changed
by notice given in accordance with this Section 9.5.
9.6. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof, and there
are no representations, warranties or commitments by the parties except as
set forth herein or otherwise set forth in writing. This Agreement
supersedes all prior and contemporaneous oral agreements, understandings,
negotiations and discussions of the parties hereto relating to the
transactions contemplated by this Agreement. This Agreement may be amended
only in writing executed by the parties hereto.
9.7. Non-Waiver. No waiver of any of the provisions of this Agreement
shall constitute a waiver of any other provision hereof or of a
continuation of the violation waived. Each party shall be entitled to rely
upon one or more provisions of this Agreement without waiving any right to
rely upon any other provision at the same time or at any other time.
9.8. Parties in Interest. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns, provided that neither this
Agreement nor any rights hereunder shall be assigned by any party hereto
without the written consent of the other parties hereto. Nothing in this
Agreement is intended or shall be construed to confer upon or to give any
person other than the parties hereto and their legal representatives,
successors and assigns any rights or remedies under or by reason of this
Agreement, except as provided in Section 8 hereof and except as may be
specifically otherwise provided herein.
9.9. Headings. The headings of sections and subsections of this
Agreement are merely for convenience of reference and have no substantive
significance Headings shall be disregarded in the interpretation of this
Agreement.
9.10. Exhibits and Schedules. All facts and statements recited or
contained in any Exhibit or Schedule or other instrument attached hereto or
delivered in connection herewith or the transactions contemplated hereby
shall be deemed warranties and representations hereunder.
9.11. Aid in Litigation. Upon request by Buyer, Seller shall perform
all acts as may be necessary, desirable and proper, in the opinion of
counsel for Buyer, to aid in the conduct of any litigation arising out of
the business, assets or properties of the Company, as same existed at and
prior to the Closing, all without further consideration from Buyer, but at
the expense of Buyer except as otherwise provided in Section 8 hereof.
9.12. Section Designations. The designation in this Agreement of any
section number shall be deemed to include all sections commencing with the
designated number. Thus, reference to a Section 6 would include reference
to such Section 6 and to all sections commencing with the number 6 (such as
6.1, 6.1.3, etc.) regardless of any other numbers appearing thereafter.
9.13. Use of Information. Seller acknowledges and agrees that any and
all information contained in this Agreement, the Schedules and Exhibits and
documents related hereto, and the financial statements furnished herewith,
may be used or made available by Buyer for any and all reporting,
disclosure and/or filing requirements which Buyer may have, and for any
filings or reports to be filed by Buyer with any governmental or other
agency; and that the representations and warranties of Seller contained in
this Agreement shall apply to such information with the same full force and
effect as applicable to this Agreement.
9.14. Governing Law. This Agreement shall be governed by, construed
and enforced in accordance with the laws of the State of Oklahoma.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date and year first above written.
BUYER: XXXXXX XXXX
Xxxxxx Xxxx, an individual
The Xxxxxx Xxxx DST Trust
By: XXXX X. XXXXXX
Xxxx X. Xxxxxx, Trustee
The Xxxxxx Xxxx HJ Trust
By: XXXX X. XXXXXX
Xxxx X. Xxxxxx, Trustee
SELLER: CONTINENTAL RESOURCES, INC.
By: XXXXXX XXXX
Name: Xxxxxx Xxxx
Title:
