AGREEMENT AND BILL OF SALE
AGREEMENT
AND XXXX OF SALE
This
Agreement and Xxxx of Sale (“Agreement”)
by and
among Propane Direct, LLC, an Oklahoma limited liability company (“Seller”),
each
of the members of Seller listed on Exhibit
A
attached
hereto (the “Members”
and
collectively, with Seller, the “Seller
Parties”),
and
United Fuel & Energy Corporation, a Texas corporation (“Buyer”)
is
made and entered into as of May 31, 2007 (“Execution
Date”).
Seller Parties and Buyer may collectively be referred to herein as the
“Parties.”
PRELIMINARY
STATEMENTS
WHEREAS,
Seller
is engaged in wholesale and retail propane sales and installation for
residential areas (the “Business”);
WHEREAS,
Seller
and Buyer have heretofore entered into a letter of intent dated as of March
16,
2007 (the “LOI”)
providing, among other things, for the sale by Seller and the purchase by Buyer
of certain assets owned and held by Seller; and
WHEREAS,
pursuant to the LOI, Seller Parties and Buyer are required to execute and
deliver this Agreement in connection with the consummation of the transactions
contemplated by the LOI.
NOW,
THEREFORE,
in
consideration of the premises, the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Seller Parties make the conveyances and
assignments, and Seller Parties and Buyer covenant and agree, as set forth
in
the following provisions of this Agreement, to wit:
1. Conveyance
and Assignment of Assets.
Seller
has granted, conveyed, sold, assigned, transferred, bargained and delivered,
and
hereby grants, conveys, sells, assigns, transfers, bargains and delivers, unto
Buyer and its successors and assigns, the assets, properties and rights
described on Exhibit
B
attached
hereto (the “Assets”)
and
incorporated herein, all such Assets being hereby conveyed free and clear of
any
lien, claim, encumbrance, charge, option or restriction of any nature
whatsoever.
TO
HAVE AND TO HOLD,
against
each and every person or persons claiming or asserting any claim against any
or
all of the same, the assets, properties and rights granted, conveyed, sold,
assigned, transferred, bargained and delivered pursuant to the preceding
provisions of this Section
1
to Buyer
and its successors and assigns, forever.
2. Closing.
The
closing of the purchase and sale of the Assets (the “Closing”)
will
take place at the offices of the Buyer in Midland, Texas, commencing at 9:00
a.m., local time, on the second business day following the satisfaction or
waiver of all conditions to the obligations of the Parties to consummate the
purchase and sale of the Assets (other than conditions with respect to actions
the respective Parties will take at the Closing itself) or such other date
as
Buyer and each Seller Party may mutually determine (the “Closing
Date”).
1
3. Assumption
of Liabilities.
Buyer
will assume only those liabilities of Seller that Buyer expressly agrees to
at
Closing as set forth on Exhibit
C
(the
“Assumed
Liabilities”).
Buyer
shall not assume or have any responsibility with respect to any liabilities
or
obligations of Seller other than as specifically set forth herein, including,
without limitation, any liabilities or obligations: (a) for taxes of any kind
whatsoever; (b) for costs and expenses incurred in connection with negotiating
the Transaction Documents and performing the transactions contemplated thereby
(the “Transactions”);
and
(c) under this Agreement, each contract, agreement, arrangement, commitment,
instrument, document or similar understanding (whether written or oral),
including leases, subleases and rights thereunder (“Contracts”)
or
writing executed or delivered in connection with this Agreement and each
amendment or supplement to any of the foregoing (including this Agreement,
the
“Transaction
Documents”).
4. Purchase
Price.
(a) The
purchase price for the Assets (the “Purchase
Price”)
is
:
(i) Two
Million Four Hundred Thousand Dollars ($2,400,000) minus the Payoff Amount
(the
“Cash
Consideration”),
to be
paid in cash, or by certified check, wire transfer or cashier’s check, on the
Closing Date;
(ii) the
value
of the inventory of Seller calculated as follows: the lower of (A) actual cost
of the inventory, and (B) the current laid-in prices for the inventory, payable
as follows: (I) fifty percent (50%) to be paid no later than five (5) business
days after the Closing Date, and (II) the remaining fifty percent (50%), which
is subject to adjustment for obsolete and slow-moving inventory, to be paid
on
the 120th
day
following the Closing Date; and
(iii) (A)
fifty
percent (50%) of the book value of Seller’s retail accounts receivable that are
less than ninety (90) days from the applicable invoice date and, in Buyer’s
determination, good and collectible (the “First
A/R Payment”),
such
amount to be paid no later than five (5) business days after the Closing Date,
and (B) the amount of any payments actually received by Buyer within one hundred
twenty (120) days after the Closing Date with respect to such accounts
receivable in excess of the First A/R Payment (the “Second
A/R Payment”),
such
amount to be paid on the 120th
day
following the Closing Date. All right, title, and interest to any accounts
receivable acquired hereunder by Buyer that are not collected within one-hundred
twenty (120) days of the Closing Date will be assigned to Seller.
(b) Any
amounts due from any Seller to any third-party lender with respect to the Assets
(the “Payoff
Amount”)
shall
be paid-off at Closing out of the Purchase Price. Except
for the Assumed Liabilities, the parties agree that Buyer is assuming none
of
Seller’s liabilities or obligations, and Seller shall be responsible for
discharging Seller’s liabilities and satisfying its obligations, all of which
shall be discharged at Closing.
5. Deliveries.
On the
Closing Date,
(a) Seller
will deliver or cause to be delivered to Buyer certificates of title or origin
(or like documents) with respect to any vehicles or other equipment included
in
the Assets for which a certificate of title or origin evidences title, together
with properly completed assignments of such vehicles or other equipment to
Buyer, all duly executed by the Seller.
2
(b) Buyer
will deliver or cause to be delivered to Seller the Cash Consideration to
Seller.
6. Seller
Parties’ Representations and Warranties.
Seller
Parties hereby jointly and severally represent and warrant to Buyer that: (a)
no
litigation is pending or, to any Seller Party’s knowledge threatened, against
them relating to the Business or the Assets, and there is no basis for any
such
claim, (b) the Assets have been properly maintained, there have not been any
discharges of any hazardous materials in violation of any environmental laws
and
regulations (“Environmental
Laws”),
and
the Assets are in compliance with all Environmental Laws, (c) no Seller Party
is
a party to any Contract relating to the Assets that cannot be terminated without
penalty, (d) the Assets are free and clear of liens, leases, claims and/or
encumbrances, and Seller Parties have good and marketable title to the Assets,
(e) there are no undisclosed liabilities with respect to the Assets or any
customer, (f) all taxes have been paid or reserved for, and there is no tax
controversy outstanding, (g) each Seller Party has complied with all applicable
laws and regulations relating to the Assets, (h) the transfer of Assets requires
no third party consents, (i) no Seller Party has any ERISA liabilities, (j)
each
Seller Party has now and has maintained in the past, adequate liability and
property casualty insurance, (k) set forth as Exhibit D
hereto
are the following financial statements (the “Financial
Statements”):
unaudited balance sheets and statements of income, as of and for the fiscal
years ended December 31, 2004, 2005, and 2006, and unaudited balance sheet
and
statement of income as of and for the 3-month period ended Xxxxx 00, 0000,
(x)
the Financial Statements fairly present the financial condition and results
of
operations of Seller, (m) there has been no loss of a material customer since
December 31, 2006, and no such loss is expected, (n) there are no customer
Contracts which are not assignable or which, to any Seller Party’s knowledge,
would terminate as a result of the sale of Assets, (o) this Agreement has been
duly executed by each Seller Party and constitutes the legal, valid and binding
obligation of each Seller Party, enforceable against each Seller Party, in
accordance with its terms, (p) no Seller Party has or will use or retain the
services of any broker or finder which would result in the imposition of a
fee
relating to this transaction, (q) each Seller Party is able to pay its debts
as
they come due and has no reason to believe that each Seller Party cannot
continue to do so in the future, (r) no Seller Party is currently insolvent
or
near insolvency and no Seller Party has reason to believe that any Seller Party
will be insolvent or near insolvency in the future, and (s) Seller is an
Oklahoma limited liability company, duly organized and in good standing, and
has
the limited liability company power to enter into and perform this Agreement,
and the execution of this Agreement by each Seller Party has been duly
authorized by all necessary corporate action. The foregoing representations
and
warranties shall survive the transfer of Assets.
Each
Seller Party shall be jointly and severally responsible for any sales or use
taxes imposed by any state or local government as a result of the sale of
Assets.
7. Buyer’s
Representations and Warranties.
Buyer
is a Texas corporation, duly organized and in good standing, and has the
corporate power to enter into and perform this Agreement. This Agreement has
been duly executed by Buyer and constitutes the legal, valid and binding
obligation of Buyer, enforceable against Buyer, in accordance with its terms.
Buyer has not and will not use or retain the services of any broker or finder
which would result in the imposition of a fee relating to this
transaction.
3
8. Covenants.
(a) General.
If at
any time after the Closing any further action is necessary or desirable to
carry
out this Agreement’s purposes, each Party will take such further action
(including executing and delivering any further instruments and documents,
obtaining any permits, licenses, certificates, waivers, notices and similar
authorizations (“Permits”)
and
consents, approvals, notifications, waivers or other similar actions
(“Consents”)
and
providing any reasonably requested information) as any other Party may
reasonably request, all at the requesting Party’s sole cost and expense (unless
the requesting Party is entitled to indemnification therefor under Section
11).
(b) Full
Access.
Seller
will permit representatives of Buyer (including financing providers and
advisors) to have full access at all reasonable times, and in a manner so as
not
to interfere with the normal business operations of Seller, to all premises,
properties, personnel, books, records, and documents pertaining to Seller and
will furnish copies of all such books, records, Contracts and documents and
all
financial, operating and other data, and other information as Buyer may
reasonably request; provided,
however,
that no
investigation pursuant to this Section
8
will
affect any representations or warranties made herein or the conditions to the
Parties’ obligations to consummate the Transactions.
Seller
will cooperate with the Buyer and its lawyers, accountants and other
representatives in connection with such due diligence investigation. Buyer,
its
lawyers, accountants and other representatives shall have full access to
Seller’s books, records, facilities, accountants and key employees for the
purpose of conducting such investigation. Each Seller Party acknowledges and
agrees that it will coordinate and cause to be completed an unqualified audit
in
accordance with GAAP to be performed with respect to Seller using auditors
acceptable to Buyer; provided
that the
cost of such audit will be borne exclusively by Buyer. Each Seller Party
specifically acknowledges and agrees that: (i) it will provide a satisfactory
representation letter to the auditors auditing the Business; (ii) that such
unqualified audit must be provided in accordance with GAAP for the period
required by the Securities Exchange Act of 1934 (up to three years); and (iii)
that such audit must be publicly disclosed by Buyer.
(c) Confidentiality.
Buyer
will use its reasonable efforts to hold in strict confidence and not disclose
to
third parties any data and information obtained from Seller or any Member except
to its sources of financing, lawyers, accountants, and other consultants and
will return all such data and information to Seller or Members in the event
the
transaction contemplated herein is not consummated.
(d) Restrictive
Covenants.
To
assure that Buyer will realize the benefits of the Transactions, each Seller
Party agrees that it will not, and will ensure that each of its affiliates
does
not:
4
(i) Restricted
Activities.
From
the Closing Date until five (5) years after the Closing Date (the “Non-Compete
Termination Date”),
directly or indirectly, alone or as a partner, joint venturer, officer,
director, member, employee, consultant, agent or independent contractor of,
or
lender to, any person or business, engage in activities similar to or
competitive with the Business anywhere within a five-hundred (500) mile radius
of any of Seller’s facilities; provided,
however,
that
the passive ownership of less than one percent (1%) of the ownership interests
of an entity having a class of securities that is traded on a national
securities exchange or over-the-counter market is not a violation of this
Section
8(d)(i).
(ii) Customer
Non-Solicitation.
From
the Closing Date until the Non-Compete Termination Date, directly or indirectly
(A) solicit any customers of Buyer or any of its affiliates for the benefit
of
any business in competition with the business of Buyer or any of its affiliates
or (B) request, advise or induce any person who is a customer, employee,
contractor, vendor or lessor of Buyer or any of its affiliates to withdraw,
curtail or cancel, or engage in any other activity that could adversely affect,
the relationship such person has with Buyer or its affiliate.
(iii) Employee
Non-Solicitation.
From
the Closing Date until the Non-Compete Termination Date, directly or indirectly,
for itself or on behalf of another, solicit for employment or engagement as
an
independent contractor, or for any other similar purpose, any person who was
in
the six-month period preceding the solicitation, or is at the time of the
solicitation, an employee or independent contractor of Buyer or any of Buyer’s
affiliates. Notwithstanding the foregoing, no Seller Party will be deemed to
have breached its obligations under this Section if such personnel independently
responded to a general solicitation for employment by such Seller
Party.
Each
Seller Party acknowledges that the restrictions in this Section
8(d)
are
reasonable in scope and duration and are necessary to protect Buyer after the
Closing. Each Seller Party acknowledges that such Seller Party’s breach of this
Section
8(d)
will
cause irreparable damage to Buyer, and upon breach of any provision of this
Section
8(d),
Buyer
will be entitled to injunctive relief, specific performance or other equitable
relief without bond or other security; provided, however, that the foregoing
remedies will in no way limit any other remedies Buyer may have. Whenever
possible each provision and term of this Section
8(d)
will be
interpreted in a manner to be effective and valid, but if any provision or
term
of this Section
8(d)
is held
to be prohibited by law or invalid, then such provision or term will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating or affecting in any manner whatsoever the remainder of such
provision or term or the remaining provisions or terms of this Section
8(d).
If any
of the covenants set forth in this Section
8(d)
are held
by a court of competent jurisdiction to contain limitations as to time,
geographical area or scope of activity to be restrained that are not reasonable
and impose a greater restraint than is necessary to protect the goodwill or
other business interest of Buyer, the court shall reform the covenants to the
extent necessary to cause the limitations contained in the covenants as to
time,
geographical area and scope of activity to be restrained to be reasonable and
to
impose a restraint that is not greater than necessary to protect the goodwill
or
other business interest of Buyer and enforce the covenants as
reformed.
5
(e) Change
in Corporate Name; Use of Names; Inquiry Referrals.
Seller
will take all such action as may be required to change Seller’s name, as
promptly as practicable after the Closing, to one that is distinctly different
in sound and appearance from “Propane Direct, LLC” and reasonably acceptable to
Buyer. After the Closing, no Seller Party will or will permit any of its
affiliates to (i) take any action to interfere with Buyer’s exclusive use of the
name “Propane Direct, LLC” in connection with the conduct and operation of the
Business or (ii) use the name “Propane Direct, LLC” in connection with the
conduct of a business that competes or may in the future compete with the
Business. After the Closing, Seller will, and will cause its affiliates to,
refer to Buyer all customers, suppliers, and other inquiries relating to the
Business or the Assets.
(f) Actions
Prior to Closing.
The
Parties agree as follows with respect to the period between the Execution Date
and the earlier of the Closing and the Termination Date:
(i) General.
Each
Party will use its reasonable efforts to take all action and do all things
necessary, proper or advisable to satisfy (but not waive) all conditions to
Closing and consummate the purchase and sale of the Assets upon the terms set
forth in this Agreement. Seller Parties will use their best efforts to preserve
and to keep intact the Business, the Assets, the services of the present
employees of Seller (including its officers) and the goodwill of the customers,
suppliers, creditors and others having business relations with Seller. Each
Party will give the other Parties notice of any development occurring or
existing after the Execution Date that causes or reasonably could be expected
to
cause a breach of any of the representations or warranties of such Party in
this
Agreement.
(ii) Operation
of the Business.
With
respect to Seller, the Business or the Assets, Seller Parties will not directly
or indirectly permit or cause to occur (or agree to permit or cause to occur)
any of the following: (A) a sale, lease or other disposition of assets outside
any Seller’s ordinary course of business; (B) creation of any Contract or any
lien, claim or encumbrance (“Encumbrances”)
outside any Seller’s ordinary course of business or any Contract with any
director, officer or affiliate of any Seller; (C) an expenditure outside any
Seller’s ordinary course of business; (D) a capital investment in, or loan to,
or an acquisition of the securities or assets of, any other person; (E) an
issuance of any debt or creation, assumption or guarantee of any liability,
outside any Seller’s ordinary course of business; (F) a change in the manner in
which accounts payable or other liabilities are paid or in which accounts
receivables are collected; (G) a change in the employment terms for, or in
the
compensation of, any employee, director, officer or affiliate of Seller, except
as required pursuant to a written Contract existing on the Execution Date;
(H)
an amendment, modification or termination of any Contract to which any Seller
is
a party or to which the Business or any of the Assets are subject; or (I) any
other occurrence, event, incident, action, failure to act or transaction outside
any Seller’s ordinary course of business.
9. Conditions
to Closing.
(a) Conditions
Precedent to Buyer’s Obligations.
Buyer’s
obligation to consummate the Transactions is subject to the satisfaction of
each
of the following conditions: (i) each representation and warranty by each Seller
Party must have been accurate and complete in all material respects on the
Execution Date and must be accurate and complete on the Closing Date as though
made then, with the Closing Date substituted for the Execution Date unless
the
context requires otherwise; (ii) each Seller Party must have performed and
complied with all of its covenants to be performed or complied with at or prior
to Closing in all material respects (except with respect to any provisions
including the word “material” or words of similar import, with respect to which
such covenants were
performed or complied with in all respects);
(iii)
since the Execution Date, there must have been no event, series of events or
the
lack of occurrence thereof which, singularly or in the aggregate, could
reasonably be expected to have a material adverse effect on the Business or
Assets; (iv) there must not be issued and in effect any order, ruling, decision,
award, judgment, injunction or other similar determination or finding by, before
or under the supervision of any federal, state, county, municipal, local or
foreign government or other similar recognized organization or body exercising
similar powers or authority (a “Governmental
Body”)
or
arbitrator (an “Order”)
restraining or prohibiting the Transactions or any pending or threatened action,
suit, arbitration, mediation, investigation or similar proceeding (an
“Action”)
by or
before any Governmental Body or arbitrator which seeks to restrain, prohibit,
invalidate or collect damages arising out of the Transactions, or which, in
Buyer’s reasonable judgment, makes it inadvisable to proceed with the
Transactions; (v) Seller and Buyer must have received all Permits and Consents
necessary or advisable to consummate the Transactions; (vi) Seller and Buyer
must have received releases of all Encumbrances on the Assets; and (vii) Buyer’s
complete satisfaction with such due diligence investigation, including approvals
by Buyer’s bank group and Buyer’s board of directors.
6
(b) Conditions
Precedent to Seller Parties’ Obligations.
Seller
Parties obligation to consummate the transactions contemplated to occur at
Closing is subject to the satisfaction of each of the following conditions:
(i)
each representation and warranty by Buyer must have been accurate and complete
in all material respects on the Execution Date (except with respect to any
provisions including the word “material” or words of similar import, with
respect to which such representations and warranties were accurate and complete)
and must be accurate and complete in all material respects on the Closing Date
(except with respect to any provisions including the word “material” or words of
similar import, with respect to which such representations and warranties were
accurate and complete) as though made then, with the Closing Date substituted
for the Execution Date unless the context requires otherwise; (ii) Buyer must
have performed and complied with all of its covenants to be performed or
complied with at or prior to Closing in all material respects (except with
respect to any provisions including the word “material” or words of similar
import, with respect to which such covenants were performed or complied with
in
all respects); (iii) there must not be issued and in effect any Order
restraining or prohibiting the Transactions; and (iv) there must not any pending
or threatened Action by or before any Governmental Body or arbitrator which
seeks to restrain, prohibit, invalidate or collect damages arising out of the
Transactions, or which, in Seller Parties’ reasonable judgment, makes it
inadvisable to proceed with the Transactions.
10. Termination
of Agreement.
Buyer
and Seller may terminate this Agreement as to all Parties by mutual written
consent at any time prior to Closing. Either Buyer or Seller may terminate
all
provisions of this Agreement as to all Parties, except for this Section
10
and
Section
12,
by
giving written notice if the Closing has not occurred prior to July 31, 2007
(the “Termination
Date”),
provided,
however,
that
the Party delivering such notice (or in the case of a delivery by Seller, any
Seller Party) must not have caused such failure to close. Buyer may terminate
all provisions of this Agreement as to all Parties, except for this Section
10
and
Section
12,
by
giving written notice to Seller any time prior to Closing if (a) any Seller
Party has breached any representation, warranty or covenant contained in this
Agreement, or (b) Buyer
is
not satisfied, in its sole discretion, with the results of, and its due
diligence investigations with respect to, the operations, affairs, prospects,
properties, assets, existing and potential liabilities, obligations, profits
or
condition (financial or otherwise) of Seller.
Seller
may terminate all provisions of this Agreement as to all Parties, except for
this Section
10
and
Section
12,
by
giving written notice to Buyer any time prior to Closing if Buyer has breached
any representation, warrant or covenant contained in this Agreement. Any
termination of this Agreement under this Section
10
(except
as permitted in this first sentence of this Section
10)
will
not extinguish or impair the rights of a non-breaching Party to pursue all
legal
remedies available to it, and no election of remedies will be deemed to have
been made.
7
11. Indemnification.
(a) SELLER
PARTIES SHALL JOINTLY AND SEVERALLY INDEMNIFY, DEFEND AND HOLD HARMLESS BUYER
AGAINST: THE BREACH OR INACCURACY OF ANY REPRESENTATION OR WARRANTY MADE BY
A
SELLER PARTY IN THIS AGREEMENT OR ANY OTHER CERTIFICATE OR DOCUMENT DELIVERED
BY
OR ON BEHALF OF A SELLER PARTY; ANY LIABILITY OR OBLIGATION OF A SELLER PARTY;
ANY DAMAGES SUFFERED BY BUYER UNDER THE UNIFORM COMMERCIAL CODE-BULK SALES;
ANY
DAMAGES OR CLAIMS RESULTING FROM ANY PRODUCT SHIPPED OR MANUFACTURED BY, OR
ANY
SERVICES PROVIDED BY, A SELLER PARTY ON OR PRIOR TO THE CLOSING; ANY CLAIM
BY
ANY PERSON FOR BROKERAGE OR FINDER’S FEES OR COMMISSIONS OR SIMILAR PAYMENTS
BASED UPON ANY AGREEMENT OR UNDERSTANDING ALLEGED TO HAVE BEEN MADE BY ANY
SUCH
PERSON WITH A SELLER PARTY (OR ANY PERSON ACTING ON ITS BEHALF) IN CONNECTION
WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY; ANY ACTION,
ARBITRATION PROCEEDING, CAUSE OF ACTION, CHARGE, COUNTERCLAIM, CROSS CLAIM,
INQUIRY, INVESTIGATION, SUIT, LEGAL ACTION, LITIGATION, ORDER, CONSENT DECREE,
INJUNCTION, DETERMINATION, JUDGMENT, AWARD OR WRIT OF ANY COURT, GOVERNMENTAL
AUTHORITY OR ARBITRATOR AGAINST A SELLER PARTY PENDING OR ACCRUED ON OR PRIOR
TO
THE CLOSING. THIS SECTION 5 OF THE AGREEMENT SURVIVES THE
CLOSING.
(b) The
aggregate liability for money damages of Buyer under this Agreement related
to
breaches of the representations and warranties herein will not exceed an amount
equal to the Cash Consideration; provided,
however,
that
the limitation contemplated hereby will not be applicable with respect to (i)
breaches of Sections
6(b), (d), (o), (p) and (s),
and
(ii) instances of fraud or intentional conduct.
(c) Notwithstanding
the foregoing, with respect to any claim for damages against any Member, Buyer
will not be entitled to recover damages for breaches of the representations
and
warranties in Section
6
in
excess of such Member’s percentage share of any damages attributable to all of
the Members. The maximum damages a Member will be required to be paid with
respect to any such claim will be determined by solving the following equation
for “X.”
8
|
B
|
||||
|
X
|
=
|
A
|
*
|
——
|
|
C
|
Where
A = the
aggregate claim for damages against all Members
B = the
portion of the Cash Consideration distributed to the applicable
Member
C = the
total
Cash Consideration
12. Miscellaneous.
(a) Severability.
Any
provision of this Agreement which is invalid, unenforceable or illegal in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such invalidity, unenforceability or illegality without affecting the
remaining provisions hereof and without affecting the validity, enforceability
or legality of such provision in any other jurisdiction.
(b) Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED, PERFORMED AND ENFORCED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF TEXAS.
(c) Submission
to Jurisdiction.
Any
Action seeking to enforce any provision of, or based on any matter arising
out
of or in connection with, this Agreement will only be brought in the Western
District of Texas, Midland-Odessa Division or any Midland, Texas state court,
and each Party consents to the exclusive jurisdiction and venue of such courts
(and of the appropriate appellate courts therefrom) in any such Action and
irrevocably waives, to the fullest extent permitted by law, any objection that
it may now or hereafter have to the laying of the venue of any such Action
in
any such court or that any such Action brought in any such court has been
brought in an inconvenient forum. Process in any such Action may be served
on
any party anywhere in the world, whether within or without the jurisdiction
of
any such court.
(d) Allocation.
The
Parties hereto agree to file all tax returns or reports including, without
limitation, IRS Form 8594, regarding the allocation of the Purchase Price paid
for the Assets. The Parties hereto agree and acknowledge that they have agreed
upon the allocation of the Purchase Price as set forth on Exhibit
D
hereto.
(e) Public
Announcement.
Any
public announcements relating to this transaction shall be initially agreed
upon
and jointly made by the parties; provided that, Buyer may disclose any terms
of
this Agreement, if legal counsel advises that such disclosure may be required
to
comply with applicable law.
9
(f) Expenses.
Each
Party will bear its own expenses and costs of the transactions contemplated
hereby, including, but not limited to, the fees of attorneys, accountants and
financial advisors.
(g) Entire
Agreement.
This
Agreement contains the entire agreement and understanding of the parties with
respect to its subject matter and supersedes all prior understandings,
agreements, or representations by and between the parties, written or oral,
as
to the subject matter hereof.
(h) Assignment;
Binding Effect.
No
Party may assign either this Agreement or any of its rights, interests or
obligations hereunder without the prior written approval of the other Party,
which consent will not be unreasonably withheld provided that the assigning
Party remains liable for all duties and obligations owing under this Agreement.
All of the terms, agreements, covenants, representations, warranties, and
conditions of this Agreement are binding upon, inure to the benefit of, and
are
enforceable by, the Parties and their respective successors and permitted
assigns.
(i) Specific
Performance; Remedies.
Each
Party acknowledges and agrees that the other Parties would be damaged
irreparably if any provision of this Agreement were not performed in accordance
with its specific terms or were otherwise breached. Accordingly, the Parties
will be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this Agreement and
its
provisions in any action or proceeding instituted in any state or federal court
sitting in Midland, Texas having jurisdiction over the Parties and the matter,
in addition to any other remedy to which they may be entitled, at law or in
equity. Except as expressly provided herein, the rights, obligations, and
remedies created by this Agreement are cumulative and in addition to any other
rights, obligations, or remedies otherwise available at law or in equity.
Nothing herein will be considered an election of remedies.
[SIGNATURE
PAGE FOLLOWS]
10
[AGREEMENT
AND XXXX OF SALE SIGNATURE PAGE]
EXECUTED
as of the day and year first above written.
| Seller Parties: | ||
| |
|
[MEMBERS]
PROPANE DIRECT, L.L.C. |
| By: | ||
|
Xxxxx Xxxxx, Chief Executive Officer |
||
| Buyer: | ||
| UNITED FUEL & ENERGY CORPORATION | ||
| |
|
|
| By: | ||
|
Xxxxxxx XxXxxxxx, President and Chief Executive Officer |
||
11
