June 16, 2003
AGREEMENT OF PURCHASE AND SALE OF ASSETS
AGREEMENT dated June 17, 2003, ("Agreement") between Oceanic
Exploration Company, a Delaware corporation having its principal office at 0000
Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("Seller"), and Cordillera
Corporation, a Utah corporation having its principal office at 0000 Xxxx Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("Purchaser").
WITNESSETH:
In consideration of the mutual covenants and agreements hereinafter set
forth, the parties hereto hereby agree as follows:
1. Purchase and Sale of Business and Assets.
Subject to and upon the terms and conditions set forth in this
Agreement, Seller will sell, transfer, convey, assign and deliver to Purchaser,
and Purchaser will purchase, at the Closing hereunder, all of the business,
assets, properties, goodwill and rights of Seller's Alliance Staffing Division,
dba Alliance Employment Solutions ("Alliance") as a going concern, of every
nature, kind and description, tangible and intangible, where so ever located or
reflected on the books and records of Seller (hereinafter sometimes collectively
called "Alliance's Assets"), including, without limitation, (i) the right to use
Alliance's name and all variations thereof, (ii) the assets referred to in the
form of Xxxx of Sale annexed hereto as Exhibit "1" and (iii) the assets
reflected on the Balance Sheet referred to in Section 5 hereof, with only such
dispositions of such assets reflected on the Balance Sheet as shall have
occurred in the ordinary course of Alliance's business between the date hereof
and the Closing and which are permitted by the terms hereof, including accounts
receivable arising or incurred for periods prior to the Closing (whether or not
reflected in the Balance Sheet) and accounts payable arising or incurred for
periods prior to the Closing. Alliance's Assets shall be conveyed free and clear
of all liabilities, obligations, liens and encumbrances excepting only those
liabilities and obligations which are expressly to be assumed by Purchaser
hereunder and those liens and encumbrances securing the same which are
specifically disclosed herein or expressly permitted by the terms hereof.
2. Purchase Price.
(a) In consideration of the sale, transfer, conveyance,
assignment and delivery of Alliance's Assets by Seller to Purchaser, and in
reliance upon the representations and warranties made herein by Seller,
Purchaser will, in full payment thereof, pay to Seller at the Closing a total
purchase price equal to the book value of Alliance at the close of business on
June 30, 2003 payable by wire transfer in immediately available funds to a bank
account of Seller as per written instructions of Seller given to Purchaser at
least seventy-two (72) hours
prior to the Closing. As additional purchase price, Purchaser will pay Seller
25% of its cumulative after-tax earnings from Alliance for the 24-month period
commencing with the date after Closing. Such amount shall be mutually determined
by the parties hereto and subject to review by the external auditors of Seller.
For purposes of computing income taxes for this 24-month period, a combined
federal and state income tax rate of 40% will be assumed. Payment shall be made
not later than 27 months after Closing.
(b) In addition to the foregoing, Purchaser will execute and
deliver to Seller at the Closing a Liabilities Undertaking in the form of
Exhibit "2" annexed hereto which shall include Purchasers agreement to
substantially continue all insurance, holiday and vacation plans for Alliance
employees based on their longevity with Alliance.
3. Closing. The Closing shall take place at 10:00 a.m., local time,
on the 30th day of June 2003 at the offices of Seller at 0000 Xxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxx, XX, xx at such other time and place as the parties may
agree. The day on which the Closing actually takes place is herein referred to
as the Closing Date.
4. Seller's Obligations at Closing: Further Assurances: Post-Closing
Adjustment.
(a) At the Closing, Seller will deliver to Purchaser:
(i) The purchase price will be calculated as the net
book value of Alliance at of close of business on June 30, 2003 reduced
by the net cash balances at that time.
(ii) A Xxxx of Sale in the form of Exhibit "1" annexed
hereto, duly executed by Seller;
(iii) Such other good and sufficient instruments of
conveyance, assignment and transfer, in form and substance
satisfactory to Purchaser, as shall be effective to vest in Purchaser
good and marketable title to Alliance's Assets;
(iv) All contracts, files and other data and documents
pertaining to Alliance's Assets; as documented in Exhibit "4" annexed
hereto; and
(v) All other documents required to be delivered to Purchaser
under the provisions of this Agreement.
(vi) Faxed documents will be accepted by Seller and Purchaser
as the same as original documents.
(b) At any time and from time to time after the Closing, at
Purchaser's request and without further consideration, Seller will execute and
deliver such other instruments of sale, transfer, conveyance, assignment and
confirmation and take such action as Purchaser may reasonably deem necessary or
desirable in order to more effectively transfer, convey and
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assign to Purchaser, and to confirm Purchaser's title to, all of Alliance's
Assets, to put Purchaser in actual possession and operating control thereof and
to assist Purchaser in exercising all rights with respect thereto. After the
Closing, at reasonable times and on reasonable notice, Seller shall have access
to the books and records pertaining to its operations prior to the Closing, and
Purchaser shall retain such books and records for a period of three (3) years
after the Closing.
(c) Seller agrees that Purchaser shall have the right and
authority to collect for its own account all receivables and other items which
shall be transferred to Purchaser as provided herein and to endorse with the
name of Seller any checks received on account of any such receivables or other
items. Seller agrees that it will promptly transfer and deliver to Purchaser any
cash or other property which Seller may receive in respect of such receivables
or other items.
(d) On or before the 45th business day following the Closing
Date, the Purchaser and Seller shall determine the pro rata allocation of
accounts which are related to the Alliance assets and which they have agreed
hereunder to apportion as of the Closing (including but not limited to accounts
regarding utilities, telephones, insurance costs, etc.) and by such day
Purchaser and Seller shall pay each other any amounts owed in connection with
such determination.
5. Representations and Warranties by Seller. Seller represents and
warrants, as to Alliance Assets only, to Purchaser as follows:
(a) Organization: Standing and Qualification. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the state of Delaware; it has all requisite corporate power and authority and
is entitled to carry on its business as now being conducted and to own, lease or
operate its properties as and in the places where business is now conducted and
properties are now owned, leased or operated; and it is duly qualified, licensed
or domesticated and in good standing as a foreign corporation authorized to do
business in the states of Colorado and California, which are the only
jurisdictions where the nature of the activities conducted by it or the
character of the properties owned, leased or operated by it require such
qualification, licensing or domestication.
(b) Subsidiaries. The business carried on under the name
"Alliance" has not been conducted through any other direct or indirect
subsidiary or affiliate of Seller.
(c) Execution: Delivery and Performance of Agreement: With the
exception of the office and photocopier lease, neither the execution, delivery
nor performance of this Agreement by Seller will, with or without the giving of
notice or the passage of time, or both, conflict with, result in a default,
right to accelerate or loss of rights under, or result in, cause or create any
liability, reassessment or revaluation of assets, lien, charge or encumbrance
pursuant to, any provision of Seller's certificate of incorporation or by-laws
or any franchise, mortgage, deed of trust, lease, license, agreement,
understanding, law, ordinance, rule, regulation, order, judgment, decree or
other legal or contractual requirement to which Seller is a party or by which
any of them or Alliance's Assets may be bound or affected. Seller has the full
power and
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authority to enter into this Agreement and to carry out the transactions
contemplated hereby, all proceedings required to be taken by it or its
stockholders to authorize the execution, delivery and performance of this
Agreement and the agreements relating hereto have been properly taken and this
Agreement constitutes a valid and binding obligation of Seller, enforceable
against it in accordance with its terms.
(d) Financial Statements. Seller has delivered to Purchaser
copies (initialed by Seller's chief financial officer and identified with a
reference to this section of this Agreement) of the following financial
statements (hereinafter collectively called the "Financial Statements"), all of
which are complete and correct, have been prepared in accordance with generally
accepted accounting principles consistently applied and maintained throughout
the periods indicated and fairly present the financial condition of Seller as at
their respective dates and the results of its operations for the periods covered
thereby:
(i) unaudited balance sheet of Alliance as of May 31,
2003, and Alliance's unaudited statement of earnings and source and
application of funds for each of the three fiscal years then ended; and
(ii) an unaudited balance sheet of Alliance (the "Balance
Sheet") as June 30, 2003 (the "Balance Sheet Date").
Such statements of earnings do not contain any items of special or nonrecurring
income or any other income not earned in the ordinary course of business except
as expressly specified therein, and such interim Financial Statements include
all adjustments, which consist only of normal recurring accruals, necessary for
such fair presentation and omit all footnote disclosure.
(e) Absence of Undisclosed Liabilities. Except as and to the
extent reflected or reserved against on the face of the Balance Sheet (excluding
the notes thereto) or set forth on Schedule "5(e)" annexed hereto, as of the
Balance Sheet Date Alliance had no debts, liabilities or obligations (whether
absolute, accrued, contingent or otherwise) of any nature whatsoever, including,
without limitation, any foreign or domestic tax liabilities or deferred tax
liabilities incurred in respect of or measured by Alliance's income, or its
period prior to the close of business on the Balance Sheet Date or any other
debts, liabilities or obligations relating to or arising out of any act,
omission, transaction, circumstance, sale of goods or services, state of facts
or other condition which occurred or existed on or before the Balance Sheet
Date, whether or not then known, due or payable. With the exception of the
current Alliance President, none of Alliance's employees is now or, will by the
passage of time hereafter become, entitled to receive any vacation time,
vacation pay or severance pay attributable to services rendered prior to the
Balance Sheet Date except as disclosed on the face of the Balance Sheet.
(f) Taxes. All taxes, including, without limitation, income,
property, sales, use, franchise, added value, employees' income withholding and
social security taxes, imposed by the United States or by any foreign country or
by any state, municipality, subdivision or instrumentality of the United States
or of any foreign country, or by any other taxing authority, which are due or
payable by Seller and Alliance, and all interest and penalties thereon, whether
disputed or not, have been paid in full, all tax returns required to be filed in
connection
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therewith have been accurately prepared and duly and timely filed and all
deposits required by law to be made by Seller and Alliance with respect to
employees' withholding and other taxes have been duly made. Seller and Alliance
have not been delinquent in the payment of any foreign or domestic tax,
assessment or governmental charge or deposit and have no tax deficiency or claim
outstanding, proposed or assessed against them, and there is no basis for any
such deficiency or claim. Seller's federal income tax returns have been
submitted and accepted by the Internal Revenue Service for all of its fiscal
years through the year ended 2001, there is not now in force any extension of
time with respect to the date on which any tax return was or is due to be filed
by or with respect to Seller, or any waiver or agreement by it for the extension
of time for the assessment of any tax, and Seller is not a "consenting
corporation" within the meaning of the Internal Revenue Code of 1986, as Amended
(the "Code").
(g) Absence of Changes or Events. Except as set forth in Schedule
"5(g)" annexed hereto, since the Balance Sheet Date Alliance has conducted its
business only in the ordinary course consistent with its prior practices.
(h) Litigation. Except as set forth in Schedule "5(h)" annexed
hereto, there is no claim, legal action, suit, arbitration, governmental
investigation or other legal or administrative proceeding, nor any order, decree
or judgment in progress, pending or in effect, or to the knowledge of Seller or
Alliance threatened, against or relating to Alliance, its officers, directors or
employees, its properties, assets or business or the transactions contemplated
by this Agreement, and neither Seller nor Alliance knows or has reason to be
aware of any basis for the same.
(i) Compliance with Laws and Other Instruments. Alliance has
complied with all existing laws, rules, regulations, ordinances, orders,
judgments and decrees now applicable to their business, properties or operations
as presently conducted. Neither the ownership nor use of Alliance's properties
nor the conduct of its business conflicts with the rights of any other person,
firm or corporation or violates, or with or without the giving of notice or the
passage of time, or both, will violate, conflict with or result in a default,
right to accelerate or loss of rights under, any terms or provisions of its
certificate of incorporation or by-laws as presently in effect, or any lien,
encumbrance, mortgage, deed of trust, lease, license, agreement, understanding,
law, ordinance, rule or regulation, or any order, judgment or decree to which
Alliance is a party or by which it may be bound or affected. Neither Seller nor
Alliance is aware of any proposed laws, rules, regulations, ordinances, orders,
judgments, decrees, governmental takings, condemnations or other proceedings
which would be applicable to Alliance business, operations or properties and
which might adversely affect its properties, assets, liabilities, operations or
prospects, either before or after the Closing.
(j) Title to Properties. Seller has good, marketable and
insurable title to all the Alliance Assets they used in the Alliance business or
purports to own, including, without limitation, those reflected in their books
and records and in the Balance Sheet (except inventory sold after the Balance
Sheet Date in the ordinary course of business). None of the Alliance Assets are
subject to any mortgage, pledge, lien, charge, security interest, encumbrance,
restriction, lease, license, easement, liability or adverse claim of any nature
whatsoever, direct or indirect, whether accrued, absolute, contingent or
otherwise. All of the properties and assets
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owned, leased or used by Alliance are in good operating condition, subject to
reasonable wear and tear and repair, are suitable for the purposes used, are
adequate and sufficient for all current operations of Alliance and are directly
related to the business of Alliance.
(k) Schedules. Annexed hereto as Schedule "5(k)" is a separate
Schedule containing an accurate and complete list of:
(i) all real property owned by Alliance or in which
Alliance has a leasehold or other interest or which is used by Alliance
in connection with the operation of its business.
(ii) all of Alliance's receivables (which shall include
accounts receivable, loans receivable and any advances), together with
detailed information as to each such listed receivable which has been
outstanding for more than thirty (30) days.
(iii) all equipment, motor vehicles, and other tangible
personal property (other than inventory and supplies), owned, leased or
used by Alliance.
(iv) all patents, patent applications, licenses, trademarks,
trademark registrations, service marks, service names, trade names,
copyrights and copyright registrations, and applications for any of the
foregoing, wholly or partially owned or held by Alliance or used in the
operation of Alliance's business.
(v) all insurance policies insuring Alliance or its
properties or interests therein, specifying with respect to each such
policy the name of the insurer, the risk insured against, the limits of
coverage, the deductible amount (if any), the premium rate and the date
through which coverage will continue by virtue of premiums already
paid.
(vi) all agreements providing for the services of an
independent contractor to which Alliance is a party or by which it is
bound.
(vii) all contracts relating to patents, trademarks, trade
names, copyrights, inventions, processes, know-how, formulae or trade
secrets to which Alliance is a party or by which it is bound.
(viii) all loan agreements, indentures, mortgages, pledges,
conditional sale or title retention agreements, security agreements,
equipment obligations, guaranties, leases or lease purchase agreements
to which Alliance is a party or by which it is bound.
(ix) all contracts, agreements, commitments or other
understandings or arrangements to which Alliance is a party or by which
it or any of its property is bound or affected.
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(x) Each collective bargaining agreement, employment and
consulting agreements, and each other agreement, arrangement, or
commitment, including, without limitation, holiday, vacation,
Christmas and other payroll practice related to the terms and
conditions of employment by Alliance, to which Alliance is a party or
is bound or which relate to the operation of Alliance's business and
each "employee benefit plan" (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA")), bonus, deferred compensation, equity-based, severance or
other plan or written agreement relating to employment, compensation
or fringe benefits for employees of Alliance, maintained or
contributed to by Alliance during the current year with respect to
which Alliance could incur or could have incurred any direct or
indirect, fixed or contingent liability (collectively, the "Plans").
(xi) The names and current annual salary rates of all
permanent employees of Alliance; and
(xii) The name of each bank in which Alliance has an account
or safe deposit box and the names of all persons authorized to draw
thereon or have access thereto; and the names of all persons, if any,
holding tax or other powers of attorney from Alliance and a summary of
the terms thereof.
All of the contracts, agreements, leases, licenses and commitments required to
be listed on Schedule "5(k)", (other than those which have been fully performed)
are valid and binding, enforceable in accordance with their respective terms, in
full force and effect and, except as otherwise specified in Schedule "5(k)"
validly assignable to Purchaser without the consent of any other party so that,
after the assignment thereof to Purchaser pursuant hereto, Purchaser will be
entitled to the full benefits thereof. Except as disclosed in Schedule "5(k)",
none of the payments required to be made under any such contract, agreement,
lease, license or commitment has been prepaid more than 30 days prior to the due
date of such payment thereunder, and there is not thereunder any existing
default, or event which, after notice or lapse of time, or both, would
constitute a default or a basis for force majeure or other claim of excusable
delay or non-performance thereunder or result in a right to accelerate or loss
of rights, and none of such contracts, agreements, leases, licenses or
commitments is, either when considered singly or in the aggregate with others,
unduly burdensome, onerous or materially adverse to Alliance's business,
properties, assets, earnings or prospects or likely, either before or after the
Closing, to result in any material loss or liability. None of Alliance's
existing or completed contracts is subject to re-negotiation with any
governmental body.
(l) Trade Names, etc. Except as set forth in Schedule "5(l)"
annexed hereto, Alliance owns or possesses the royalty free licenses or other
rights to use all copyrights, trademarks, service marks, service names, trade
names, patents, trade secrets and other proprietary rights necessary to conduct
its business as it is presently operated.
(m) No Guaranties. Except as set forth in Schedule "5(m)" annexed
hereto, none of the obligations or liabilities of Alliance is guaranteed by, or
subject to a similar contingent liability of, any other person, firm or
corporation, nor has Alliance guaranteed, or
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otherwise become contingently liable for, the obligations or liabilities of any
other person, firm or corporation.
(n) Supplies. Alliance's assets include a sufficient but not an
excessive quantity of each type of such supplies in order to meet the normal
requirements of Alliance's business and operations.
(o) Receivables. All receivables of Alliance (including accounts
receivable, loans receivable and advances) which are reflected in the Balance
Sheet, and all such receivables which will have arisen since the date of the
Balance Sheet, shall have arisen only from bona fide transactions in the
ordinary course of Alliance's business.
(p) Records. The books of account and other records of Alliance
are complete and correct in all material respects and have been maintained in
accordance with sound business practices, and there have been no transactions
involving the business of Alliance which properly should have been set forth
therein and which have not been accurately so set forth.
(q) Collective Bargaining: Employment Compliance. Alliance's
employees are not represented by any unions. During the past three years,
Alliance has not been the subject of a union organizing drive. Alliance has
complied with all laws, regulations and provisions relating to employment,
safety, wages, hours, benefits, collective bargaining and all applicable
occupational safety and health acts, laws and regulations. Alliance has not
discriminated on the basis of race, color, religion, sex, national origin, age,
disability, veteran status or on the basis of any other legally protected
characteristic in its employment terms, conditions or practices. No action,
suit, complaint, charge, arbitration, employee proceeding or investigation by or
before any court, governmental entity, administrative agency or commission,
brought by or on behalf of any employee, prospective employee, former employee,
retired employee, labor organization or other representative of Alliance's
employees is pending or, to the knowledge of Seller or Alliance, is threatened
against Alliance except as disclosed in Schedule 5(q) annexed hereto. Neither
Seller nor Alliance is a party to or otherwise bound by any consent decree with
or citation by any government entity relating to Alliance's employees or
employment practices. Alliance is in compliance with its obligations with
respect to Alliance's employees pursuant to the Worker Adjustment and Retraining
Notification Act of 1988, and all other employment, notification and bargaining
obligations arising under any agreement, statute or otherwise.
(r) Employee Benefit Plans. Alliance employees' participation in
existing plans will be terminated as of Closing Date. Alliance employees will be
eligible to participate in the appropriate Employee Benefit Plans of the
Purchaser according to those plan terms.
(s) Absence of Certain Business Practices. Neither Alliance nor
any officer, employee or agent of Alliance, nor any other person acting on its
behalf, has, within the past three years given any gift or similar benefit to
any customer, supplier, governmental employee or other person who is in a
position to help or hinder the business of Alliance (or assist Alliance in
connection with any actual or proposed transaction) which (i) might subject
Alliance to any damage or penalty in any civil, criminal or governmental
litigation or proceeding, (ii), if not
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given in the past, might have had an adverse effect on the assets, business or
operations of Alliance as reflected in the Financial Statements or (iii), if not
continued in the future, might adversely affect Alliance Assets, business,
operations or prospects or which might subject Alliance to suit or penalty in
any private or governmental litigation or proceeding.
(t) Disclosure. No representation or warranty by Seller contained
in this Agreement, nor any statement or certificate furnished or to be furnished
by Seller to Purchaser or its representatives in connection herewith or pursuant
hereto, contains or will contain any untrue statement of a material fact, or
omits or will omit to state any material fact required to make the statements
herein or therein contained not misleading or necessary in order to provide a
prospective purchaser of the business of Alliance with adequate information as
to Alliance and its condition (financial and otherwise), properties, assets,
liabilities, business and prospects, and Seller has disclosed to Purchaser in
writing all material adverse facts known to it relating to the same.
6. Representations and Warranties by Purchaser. Purchaser
represents and warrants to Seller as follows:
(a) Organization. Purchaser is a corporation, duly organized,
validly existing and in good standing under the laws of the state of Utah and
has full corporate power and authority to enter into this Agreement and the
related agreements referred to herein and to carry out the transactions
contemplated by this Agreement and to carry on its business as now being
conducted and to own, lease or operate its properties.
(b) Authorization and Approval of Agreement. All proceedings or
corporate action required to be taken by Purchaser relating to the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby shall have been taken at or prior to the Closing.
(c) Execution, Delivery and Performance of Agreement. Neither the
execution, delivery nor performance of this Agreement by Purchaser will, with or
without the giving of notice or the passage of time, or both, conflict with,
result in a default, right to accelerate or loss of rights under, or result in
the creation of any lien, charge or encumbrance pursuant to, any provision of
Purchaser's certificate of incorporation or by-laws or any franchise, mortgage,
deed of trust, lease, license, agreement, understanding, law, ordinance, rule or
regulation or any order, judgment or decree to which Purchaser is a party or by
which it may be bound or affected. Purchaser has full power and authority to
enter into this Agreement and to carry out the transactions contemplated hereby,
all proceedings required to be taken by Purchaser to authorize the execution,
delivery and performance of this Agreement and the agreements relating hereto,
have been properly taken and this Agreement constitutes a valid and binding
obligation of Purchaser.
(d) Litigation. There is no legal action, suit, arbitration,
governmental investigation or other legal or administrative proceeding, nor any
order, decree or judgment in progress, pending or in effect, or to the knowledge
of Purchaser threatened, against or relating
9
to Purchaser in connection with or relating to the transactions contemplated by
this Agreement, and Purchaser does not know or have any reason to be aware of
any basis for the same.
7. Conduct of Business Prior to Closing.
(a) Prior to the Closing, Seller shall conduct the business and
affairs of Alliance only in the ordinary course and consistent with its prior
practice and shall maintain, keep and preserve its assets and properties in good
condition and repair, reasonable wear and tear excepted, and maintain insurance
thereon in accordance with present practices, and Seller will use its best
efforts (i) to preserve the business and organization of Alliance intact, (ii)
to keep available to Purchaser the services of Alliance's present employees,
agents and independent contractors, (iii) to preserve for the benefit of
Purchaser the goodwill of Alliance's suppliers, customers, landlords and others
having business relations with it, and (iv) to cooperate with Purchaser and use
reasonable efforts to assist Purchaser in obtaining the consent of any landlord
or other party to any lease or contract with Seller where the consent of such
landlord or other party may be required by reason of the transactions
contemplated hereby.
(b) Seller shall give Purchaser prompt written notice of any
change in any of the information contained in the representations and warranties
made in Section 5 or elsewhere in this Agreement or the Schedules referred to
herein which occurs prior to the Closing.
8. Access to Information and Documents. Upon reasonable notice and
during regular business hours, Seller and Alliance will give Purchaser and
Purchaser's attorneys, accountants and other representatives full access to
Seller's personnel and all properties, documents, contracts, books and records
of Seller relating to Alliance and will furnish Purchaser with copies of such
documents and with such information with respect to the affairs of Alliance as
Purchaser may from time to time request, and Purchaser will not improperly
disclose the same prior to the Closing.
9. Employment Contract. At the Closing, Seller will assign the
existing employment contract between Seller and Xxxxxxx Xxxxxxxx, President of
Alliance, to Purchaser.
10. Directors and Shareholders Authorization:
(a) At or prior to the Closing, Seller will deliver to Purchaser
a copy of the resolutions of the Board of Directors of Seller approving the
execution and delivery of this Agreement and the consummation of all of the
transactions contemplated hereby, duly certified by an officer of Seller.
(b) All rights to the Alliance Staffing name shall be assigned to
Purchaser at the Closing as part of Alliance's Assets.
11. Sales Compliance. Seller will notify the taxing authority of the
State of California responsible for the collection of sales and use taxes in
accordance with the applicable tax laws.
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12. Non-Competition Agreement. Seller shall execute and deliver to
Purchaser at or prior to the Closing a Non-Competition and Continuity of
Business Dealings Undertaking in the form of Exhibit "3" annexed hereto.
13. Conditions Precedent to Purchaser's Obligations. All obligations
of Purchaser hereunder are subject, at the option of Purchaser, to the
fulfillment of each of the following conditions at or prior to the Closing, and
Seller shall exert its best efforts to cause each such condition to be so
fulfilled:
(a) All representations and warranties of Seller contained herein
or in any document delivered pursuant hereto shall be true and correct in all
material respects when made and shall be deemed to have been made again at and
as of the date of the Closing.
(b) All covenants, agreements and obligations required by the
terms of this Agreement to be performed by Seller at or before the Closing shall
have been duly and properly performed in all material respects.
(c) Since the Balance Sheet Date, there shall not have occurred
any material adverse change in the condition (financial or otherwise), business,
properties, assets or prospects of Alliance.
(d) There shall be delivered to Purchaser a certificate executed
by the President and Chief Financial Officer of Seller, dated the date of the
Closing, certifying that the conditions set forth in paragraphs (a), (b), and
(c) of this Section have been fulfilled.
(e) All documents required to be delivered to Purchaser at or
prior to the Closing shall have been so delivered.
14. Conditions Precedent to Seller's Obligations. All obligations of
Seller at the Closing are subject, at the option of Seller, to the fulfillment
of each of the following conditions at or prior to the Closing, and Purchaser
shall exert its best efforts to cause each such condition to be so fulfilled:
(a) All representations and warranties of Purchaser contained
herein or in any document delivered pursuant hereto shall be true and correct in
all material respects when made and as of the Closing.
(b) All obligations required by the terms of this Agreement to be
performed by Purchaser at or before the Closing shall have been duly and
properly performed in all material respects.
(c) Purchaser agrees to substantially continue all insurance,
holiday and vacation plans for Alliance employees based upon their longevity
with Alliance.
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15. Indemnification.
(a) Seller hereby indemnifies and agrees to hold Purchaser
harmless from, against and in respect of (and shall on demand reimburse
Purchaser for):
(i) any and all losses, liabilities or damages suffered or
incurred by Purchaser (A) by reason of any untrue representation,
breach of warranty or non-fulfillment of any covenant by Seller
contained herein or in any certificate, document or instrument
delivered to Purchaser pursuant hereto or in connection herewith or (B)
which would not have been suffered or incurred if such representation
were true and not breached or if such covenant were fully performed;
(ii) any and all losses, liabilities or damages suffered or
incurred by Purchaser in respect of or in connection with any
liabilities of Seller not expressly assumed by Purchaser pursuant to
the terms of the Liabilities Undertaking.
(iii) any and all losses, damages, debts, liabilities or
obligations of Seller, direct or indirect, fixed, contingent or
otherwise, which exist at or as of the date of the Closing hereunder or
which arise after the Closing but which are based upon or arise from
any act, omission, transaction, circumstance, production or sale of
goods or services, state of facts or other condition which occurred or
existed on or before the date of the Closing, except to the extent
expressly assumed by Purchaser pursuant to the terms of the Liabilities
Undertaking;
(iv) the amount of any and all accounts payable, incurred or
arising from periods prior to the Closing, not known or disclosed at
time of Closing;
(v) any and all losses, liabilities or damages suffered or
incurred by Purchaser by reason of or in connection with any claim for
a finder's fee or brokerage or other commission arising by reason of
any services alleged to have been rendered to or at the instance of
Seller or Alliance with respect to this Agreement or any of the
transactions contemplated hereby;
(b) Purchaser hereby agrees to indemnify and hold Seller harmless
from, against and in respect of (and shall on demand reimburse them for):
(i) any and all losses, liabilities or damages resulting from
any untrue representation, breach of warranty or non-fulfillment of any
covenant or agreement by Purchaser contained herein or in any
certificate, document or instrument delivered to Seller hereunder;
(ii) any and all liabilities or obligations of Seller
specifically assumed by Purchaser pursuant to this Agreement; and
(c) Notwithstanding the above indemnity, in no event shall Seller
be liable to Purchaser for more than the total Purchase Price.
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16. Nature and Survival of Representations and Warranties. All
statements, representations, warranties, indemnities, covenants and agreements
made by each of the parties hereto shall survive the Closing for a period of
eighteen months.
17. Notices. Any and all notices or other communications required or
permitted to be given under any of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given when personally delivered or
mailed by first class registered mail, return receipt requested, addressed to
the parties at the addresses set forth above (or at such other address as any
party may specify by notice to all other parties given as aforesaid).
18. Legal and Other Costs.
(a) In the event that any party (the "Defaulting Party") defaults
in its obligations under this Agreement and, as a result thereof the other party
(the "Non-Defaulting Party") seeks to legally enforce its rights hereunder
against the Defaulting Party, then, in addition to all damages and other
remedies to which the Non-Defaulting Party is entitled by reason of such
default, the Defaulting Party shall promptly pay to the Non-Defaulting Party an
amount equal to all costs and expenses (including reasonable attorneys' fees)
paid or incurred by the Non-Defaulting Party in connection with such
enforcement.
(b) In the event that the Non-Defaulting Party is entitled to
receive an amount of money by reason of the Defaulting Party's default
hereunder, then, in addition to such amount of money, the Defaulting Party shall
promptly pay to the Non-Defaulting Party a sum equal to interest on such amount
of money accruing at the rate of 1% per month (but if such rate is not permitted
under the laws of the State of Colorado, then at the highest rate which is
permitted to be paid under the laws of the State of Colorado) during the period
between the date such payment should have been made hereunder and the date of
the actual payment thereof.
19. Miscellaneous.
(a) This writing constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof and may not be modified,
amended or terminated except by a written agreement, specifically referring to
this Agreement signed by all of the parties hereto.
(b) No waiver of any breach or default hereunder shall be
considered valid unless in writing and signed by the party giving such waiver,
and no such waiver shall be deemed a waiver of any subsequent breach or default
of the same or similar nature.
(c) This Agreement shall be binding upon and inure to the benefit
of each corporate party hereto, its successors and assigns.
(d) The paragraph headings contained herein are for the purposes
of convenience only and are not intended to define or limit the contents of said
paragraphs.
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(e) Each party hereto shall cooperate, shall take such further
action and shall execute and deliver such further documents as may be reasonably
requested by any other party in order to carry out the provisions and purposes
of this Agreement.
(f) Purchaser will pay all sales, transfer and documentary taxes,
if any, payable in connection with the sale, conveyances, assignments, transfers
and deliveries to be made to Purchaser hereunder.
(g) This Agreement may be executed in one or more counterparts,
all of which taken together shall be deemed one original.
(h) This Agreement and all amendments thereof shall be governed
by and construed in accordance with the laws of the State of Colorado applicable
to contracts made and to be performed therein.
(i) Purchaser may, at its sole discretion, assign this agreement
to a wholly owned entity now existing or to be subsequently formed.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date and year first above written.
SELLER:
Oceanic Exploration Company
ATTEST: By: /s/ XXXXXXX X. XXXX
---------------------------------------
/s/ XXXXX X. XXXXX Xxxxxxx X. Xxxx, President
------------------------------
Xxxxx X. Xxxxx,
Secretary
PURCHASER:
Cordillera Corporation
ATTEST: By: /s/ XXXX X. XXXXX
---------------------------------------
Xxxx X. Xxxxx, Executive Vice President
/s/ XXXXXX XXXXXXXXXX
------------------------------
Xxxxxx Xxxxxxxxxx,
Assistant Secretary
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