Exhibit 10.4
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INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT is entered into this 1st day of March 2003 by
and between Oakridge Resources, Inc., a Utah corporation ("ORI"), and Mountain
Oil, Inc., a Utah corporation ("MOLI").
RECITALS
WHEREAS, MOLI and ORI are parties to the Agreement and Plan of
Reorganization with Dental Cooperative, Inc. ("CO-OP") dated November ____, 2003
(the "Reorganization Agreement") pursuant to which MOLI will acquire CO-OP as a
wholly owned subsidiary, and will spin off ORI to be a separately owned company;
WHEREAS, ORI is now a wholly owned subsidiary of MOLI, and holds all of
the operating assets of MOLI and its subsidiaries;
WHEREAS, a negotiated element of the Reorganization Agreement, requires
MOLI to divest itself of ORI so that at the time the acquisition of CO-OP is
completed MOLI holds none of its traditional operating assets or liabilities,
and such divestiture will be accomplished by distributing all of the common
stock of ORI held by MOLI to the stockholders of MOLI on a pro rata basis;
WHEREAS, MOLI has determined that it and its stockholders will benefit
from the acquisition of CO-OP, and as an inducement to CO-OP to enter into the
Agreement and effectuate the transactions contemplated thereby, MOLI agreed to
cause ORI to indemnify MOLI against all loss, cost, or damage arising from the
past or future ownership or operation of the MOLI assets now held by ORI, as
well as the MOLI liabilities purportedly assumed by ORI;
NOW, THEREFORE, in consideration of the foregoing recitals and the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
1. Indemnification. ORI agrees to indemnify and hold MOLI harmless,
together with its affiliates and their respective officers, directors,
employees, agents and controlling persons (each an "Indemnified Person") from
and against any and all losses, claims, damages, liabilities and expenses, joint
or several, to which any such Indemnified Person may become subject arising out
of or in connection with the ownership or operation of any of the assets or
business of ORI prior to or subsequent to the date hereof, including but not
limited to (a) the obligations arising from any liability assumed from MOLI or
related to the former business of MOLI, and (b) governmental assessments, taxes
or claims arising in connection with the former business of MOLI now to be
conducted by ORI. This indemnity obligation extends to any claim, litigation,
investigation, or proceedings relating to the foregoing ("Proceedings")
regardless of whether any of such Indemnified Persons is a party thereto, and to
reimburse such Indemnified Persons for any legal or other expenses as they are
incurred in connection with investigating or defending any of the foregoing.
2. Indemnification Procedures. Promptly after receipt by an Indemnified
Person of notice of commencement of any Proceedings, such Indemnified Person
will, if a claim for indemnity in respect thereof is to be made against ORI,
notify ORI in writing of the commencement thereof; provided that the omission so
to notify ORI will not relieve it from any liability which it may have hereunder
except to the extent it has been materially prejudiced by such failure. In case
any such Proceedings are brought against any Indemnified Person and it notifies
ORI of the commencement thereof, ORI will be entitled to participate therein.
3. Representations and Warranties of ORI. ORI makes the representations
and warranties to MOLI contained in this Section 3 as of the date of this
Agreement with the intent that MOLI and CO-OP rely on such representations and
warranties in entering into this Agreement.
(a) Organization. ORI is a corporation duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation.
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(b) Authorization. ORI has full power and authority (including full
corporate or other entity power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of ORI, enforceable in accordance with
its terms and conditions.
(c) Non-contravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) to the Knowledge(1) of any director or officer of ORI, violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government, governmental agency, or
court to which ORI is subject or (ii) violate any provision of the charter,
bylaws, or other governing documents of ORI or (iii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or other
arrangement to which ORI is a party or by which it is bound or to which any of
its assets is subject. To the Knowledge of any of its directors or officers, ORI
does not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental agency in
order for it to enter into this Agreement and perform its obligations hereunder.
(d) Legal Compliance. To the knowledge of ORI, it has complied with all
applicable laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges there under) of federal, state,
local, and foreign governments (and all agencies thereof) applicable to it, and
no action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against it alleging any failure so
to comply.
(e) Litigation. ORI is not (i) subject to any outstanding injunction,
judgment, order, decree, ruling, or charge or (ii) a party or, to the knowledge
of any of directors and officers (and employees with responsibility for
litigation matters) of ORI, is threatened to be made a party to any action,
suit, proceeding, hearing, or investigation of, in, or before any court or
quasi-judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator. None of the directors and officers (and
employees with responsibility for litigation matters) of ORI has any reason to
believe that any such action, suit, proceeding, hearing, or investigation may be
brought or threatened against ORI or that there is any basis for the foregoing.
4. Entire Agreement; Amendments and Waivers. This Agreement represents
the entire understanding and agreement between the parties hereto with respect
to the subject matter hereof and can be amended, supplemented or changed only by
written instrument signed by the parties hereto.
5. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of Utah.
6. Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, it being intended that all
of the rights and privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
7. Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns. No assignment of this Agreement or of any rights or
obligations hereunder may be made by ORI or MOLI (by operation of law or
otherwise) without the prior written consent of the other party hereto, and any
attempted assignment without the required consent shall be void.
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(1) As defined in the Agreement.
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8. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed, or have caused
this Indemnity Agreement to be executed by their respective authorized
representatives, as of the date first written above.
OAKRIDGE RESOURCES, INC. MOUNTAIN OIL, INC.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, President Xxxxxx Xxxxxxxx, President
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