EXHIBIT 2.1
PLAN OF REORGANIZATION AND AGREEMENT OF MERGER
(AMENDED AND RESTATED)
THIS PLAN OF REORGANIZATION AND AGREEMENT OF MERGER (this "Agreement")
dated this 31st day of March, 2000, amongst Potomac Energy Corporation, an
Oklahoma corporation ("Parent"), Potomac Exploration Acquisition Corporation,
an Oklahoma corporation and wholly-owned subsidiary of Potomac ("Acquisition
Corp") and Butte Coal, Inc., ("Butte"), (Acquisition Corp and Butte being
sometimes referred to herein as the "Constituent Corporations"), amends and
restates the Plan of Reorganization and Agreement of Merger dated March 13,
2000, amongst Parent, Acquisition Corp and Butte.
RECITALS
The respective Boards of Directors of the Constituent Corporations and
Parent have determined that the merger of Acquisition Corp with and into Butte
(which in its capacity as the surviving corporation, is hereinafter sometimes
referred to as the "Surviving Corporation") to be desirable and in the best
interest of the shareholders of Butte and Parent as the sole shareholder of
Acquisition Corp, and desiring to adopt a plan of reorganization within the
meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as
amended, have approved this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants and agreements contained herein, and in
accordance with the applicable provisions of the Oklahoma General Corporation
Act of the State of Oklahoma (the "Oklahoma Law") and of the Utah Business
Corporation Act (the "Utah Law"), each of the Constituent Corporations and the
Butte Shareholders hereby agrees that Acquisition Corp shall be merged with and
into Butte (the "Merger") and that the terms and conditions and consummation of
the Merger shall be as follows:
ARTICLE I
MERGER OF BUTTE WITH AND INTO ACQUISITION CORP
1.01 EFFECT OF MERGER. At the Effective Time (as defined in Section 4.1
hereof) all and singular the rights, privileges, powers and franchises, as well
of a public or private nature, and all property, real, personal and mixed, of
each of the Constituent Corporations, and all debts due to either of them on
whatever account, including subscriptions to shares and all other things in
action, or belonging to either of them, shall be, by operation of law or
otherwise, taken and deemed to be transferred to, and shall be vested in, the
Surviving Corporation without further act or deed; and all property, rights,
privileges, powers and franchises and all any every other interest shall
thereafter effectively be the property of the Surviving Corporation as they were
of the Constituent Corporations, and the title to any real estate vested by deed
or otherwise in either of the Constituent Corporations shall not revert or be in
any way impaired by reason of the merger; by the Surviving Corporation shall
thenceforth be liable for all debts, liabilities, obligations, duties and
penalties of each of the Constituent Corporations and all said debts,
liabilities, obligations, duties and penalties
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shall thenceforth attach to the Surviving Corporation and may be enforced
against it to the same extent as if said debts, liabilities, obligations,
duties and penalties had been incurred or contracted by it. No liability or
obligation due or to become due at the Effective Time, or any claim or demand
for any cause then existing against either of the Constituent Corporations or
any shareholder, officer or director thereof, shall be released or impaired
by the merger, and all rights of creditors and all liens upon property of
either of the Constituent Corporations shall be preserved unimpaired.
1.02 EXECUTION OF ADDITIONAL INSTRUMENTS. From time to time, as and
when requested by the Surviving Corporation, or its successors or assigns, the
officers and directors of Acquisition Corp last in office shall execute and
deliver such deeds and other instruments and shall take or cause to be taken
such further action or other actions as shall be necessary in order to vest or
perfect in or to confirm of record or otherwise the Surviving Corporation's
title to, and possession of, all property, interest, assets, rights, privileges,
immunities, powers, franchises and authority of Acquisition Corp and otherwise
carry out the purpose of this Agreement and the officers and directors of Parent
are fully authorized in the name of Acquisition Corp or otherwise to take any
and all such action.
1.03 CORPORATE OFFICES. Immediately following the Merger, the Surviving
Corporation shall maintain its corporate offices in Oklahoma City, Oklahoma, for
administrative, accounting and public relation functions.
1.04 AVAILABILITY OF PARENT COMMON STOCK. Parent will make available to
Acquisition Corp a sufficient number of shares of Common Stock, $.001 par value
per share, of Parent to effect the Merger pursuant to this Agreement.
1.05 MATERIAL ADVERSE EFFECT. When used in connection with Butte or
Parent or any of its subsidiaries, as the case may be, the term "Material
Adverse Effect" means any change, effect or circumstance that, individually or
when taken together with all other such changes, effects or circumstances that
have occurred prior to the date of determination of the occurrence of the
Material Adverse Effect, is or is reasonably likely to be materially adverse to
the business, operations, assets (including intangible assets), condition
(financial or otherwise), liabilities or results of operations of Butte or
Parent and its subsidiaries, as the case may be, in each case taken as a whole.
ARTICLE II
SURVIVING CORPORATION
2.01 ARTICLES OF INCORPORATION AND BYLAWS OF THE SURVIVING CORPORATION.
At and after the Effective Time, the Articles of Incorporation and bylaws of
Butte shall remain in full force and effect as written at the Effective Time and
shall not be amended in any further respect by reason of this Agreement and such
Articles of Incorporation and such bylaws shall be the Articles of Incorporation
and bylaws of the Surviving Corporation until amended in accordance with Utah
Law.
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2.02 BOARD OF DIRECTORS AND OFFICERS. At the Effective Time, (i)
Xxxxxxxx Xxxx, Xx. (the sole member of the Board of Directors of Butte) and Xxxx
X. Xxxxx shall become members [or otherwise designate representatives] to the
Board of Directors of Parent, (ii) [Xxxx X. Xxxx, Xxxx Xxxxxxxx, Xxxxx X.
Xxxxxxx, Xxxxxx Xxxxxx Xxxxxxx and Xxxxxx Xxxxx Cyzedo] shall resign as the
members of the Board of Directors of Parent and Acquisition Corp, and (iii) the
officers of Butte shall remain the officers of the Surviving Corporation.
Furthermore, Butte shall appoint new members to the Board of Parent as so
desired.
2.03 SHAREHOLDER APPROVAL. Prior to consummation of the Merger, this
Agreement must be approved by the shareholder or shareholders of each of the
Constituent Corporations. This Agreement shall be deemed approved by the
shareholder of Acquisition Corp by execution of this Agreement by Parent. This
Agreement shall be deemed approved by each of the Butte Shareholders by their
execution of this Agreement.
ARTICLE THREE
CONVERSION AND EXCHANGE OF SHARES
3.01 CONVERSION OF BUTTE CAPITAL STOCK. Parent shall issue 16,751,774
shares of its Common Stock to the shareholders of Butte in connection with the
Merger. Each share of Common Stock of Butte issued and outstanding immediately
prior to the Effective Time shall thereupon be exchanged for and converted into
and become 167.51774 shares of Common Stock of Parent. Each share of such
Common Stock issued pursuant to this Section 3.01 shall be fully paid and
nonassessable. Each share of Common Stock of Butte so converted is herein
sometimes referred to as the "Converted Stock." At the Effective Time, Parent
shall assume all obligations and agreements of Butte under outstanding stock
options and agreements requiring the issuance of Butte Common Stock, as
identified in Section 5.03 of this Agreement.
3.02 FRACTIONAL SHARES. No fraction of a share of Common Stock of
Parent shall be issuable upon conversion of the Common Stock of Butte in the
Merger and any fractional shares shall be rounded to the next whole share.
3.03 EXCHANGE OF CERTIFICATES. At and after the Effective Time, each
holder of a certificate representing the Converted Stock, upon presentation and
surrender of such certificate or certificates to Parent or its transfer agent,
shall be entitled to receive in exchange therefor a certificate or certificates
representing the number of fully paid and non-assessable shares of the Common
Stock of Parent to which he, she or it is entitled as provided in Section 3.01.
The Common Stock of Parent so received in exchange shall be registered in such
names as the holder of the Converted Stock so exchanged may request; provided,
however, that if any certificate representing shares of the Common Stock of
Parent is to be issued in a name other than that in which the certificate
surrendered shall be properly endorsed and otherwise in proper form for
transfer, and the person making such request shall have paid any transfer or
other taxes or established to the satisfaction of Parent that such taxes have
been paid or are not payable. Until so presented and surrendered in exchange
for a certificate representing Common Stock of Parent, each certificate which
represented issued and outstanding shares of Converted Stock at the Effective
Time shall, except as provided in
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the following sentence, be deemed for all purposes to evidence ownership of
the number of whole shares of Common Stock of Parent into which such shares
of Converted Stock have been converted pursuant to the Merger. Until
surrender of such certificates in exchange for certificates representing
Common Stock of Parent, the holder Converted Stock shall not be entitled to
receive any dividend or other distribution payable to holders of shares of
Common Stock of Parent until the holder of the Converted Stock exchanges for
certificates representing the Common Stock of Parent, there shall be paid to
the record holder of the certificates representing Parent issued upon such
surrender, the amount of dividends or other distributions (without interest)
which therefor became payable and were not paid to such holder with respect
to the number of whole shares of Common Stock of Parent represented by the
certificates issued upon such surrender.
3.04 CLOSING OF STOCK TRANSFER BOOKS. The stock transfer books of Butte
shall be closed upon execution of this Agreement, and no transfer of record and
no further issuance of any of the shares of Common Stock of Butte shall take
place or be made thereafter.
3.05 RESTRICTION ON TRANSFER OF PARENT COMMON STOCK. The Common Stock
of Parent to be issued and delivered to the shareholders of Butte pursuant to
this Agreement (i) will be acquired by such shareholders for investment purposes
only without the intent to resell or further distribute such Common Stock, (ii)
will be issued pursuant to exemption from registration under the 1933 Act and
the applicable state or other jurisdictional securities acts, (iii) will not be
transferred except pursuant to registration under the 1933 Act and the
applicable state or other jurisdictional securities acts unless pursuant to
exemption from registration under such acts and (iv) the certificates evidencing
the Common Stock of Parent shall bear appropriate restrictive transfer legends
as required pursuant to the 1933 Act and the applicable state and other
jurisdictional securities acts.
ARTICLE FOUR
EFFECTIVE TIME OF THE MERGER
4.01 EFFECTIVE TIME. The Merger shall become effective at 5:00 P.M.,
Central Standard Time, on the date when the last of the following actions shall
have been completed:
(i) Each of the Constituent Corporations shall have notified the
other Constituent Corporation in writing that all conditions precedent to
the obligation of such Constituent Corporation to consummate and effect
the Merger have occurred or have been waived; and
(ii) A Certificate of Merger shall have been executed,
acknowledged and filed in accordance with the provisions of the Oklahoma
Law; and
(iii) Certificate of Merger shall have been issued in accordance
with the provisions of the Utah Law.
The time when the Merger shall become effective, as defined by this
Section 4.01, is herein called the "Effective Time."
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ARTICLE FIVE
REPRESENTATIONS AND WARRANTIES OF BUTTE
Butte represents and warrants unto Parent and Acquisition Corp as
follows:
5.01 ORGANIZATION. Butte is a corporation duly organized, validly
existing and in good standing under Utah Laws and has the corporate power and
is entitled to own or lease its properties and to carry on its business as,
and in the places where, such properties are now owned or leased and such
business is now conducted. Nevada and Utah are the only jurisdictions in
which the property owned or leased or the business conducted by Butte would
make any such qualification necessary.
5.02 DELIVERY OF CERTIFICATE OF INCORPORATION AND BYLAWS. Butte has
delivered to Parent complete and correct copies of its Articles of
Incorporation and bylaws, as certified to by the Secretary of Butte, as in
effect on the date hereof.
5.03 CAPITALIZATION. The authorized capital stock of Butte consists
of (i) 100,000 shares of Common Stock, $.001 par value, of which 100,000
shares are issued and outstanding. There are no other authorized or
outstanding equity securities of Butte of any class, kind or character, and
there are no outstanding subscriptions, options, warrants or other agreements
or commitments obligating Butte to issue any additional shares of its capital
stock of any class, or any option or right with respect thereto, or any
securities convertible into shares of stock of any class. All outstanding
shares of Common Stock of Butte are duly and validly authorized and issued,
and have not been issued in violation of any preemptive right of shareholders.
5.04 SUBSIDIARIES. Butte does not have any subsidiary corporations.
5.05 AUTHORIZATION OF AGREEMENT. The Board of Directors and all of
the shareholders of Butte have duly approved this Agreement and the
transactions contemplated hereby and have authorized the execution and
delivery of this Agreement by Butte. Butte has full power, authority and
legal right to enter into this Agreement and to consummate the transactions
contemplated hereby.
5.06 CONFLICTING AGREEMENTS. Neither the execution nor the delivery
of this Agreement, nor the consummation of the transactions contemplated
hereby in accordance with the terms of this Agreement, will conflict with, or
result in a breach of, any term of, or constitute a default under, (i) the
Articles of Incorporation or bylaws of Butte, or (ii) any material agreement
or instrument to which Butte is a party, or (iii) any material judgment,
decree, order, statute, rule or regulation to which Butte is subject, or
result in the creation of material lien, charge or encumbrance on any of the
properties of Butte. Butte, to its knowledge, is not in default or would be in
default with lapse of time or notice or both, in respect to any such term.
5.07 DELIVERY OF FINANCIAL STATEMENTS. Butte has furnished Parent
the balance sheet of Butte as of December 31, 1999 (the "1999 Butte Balance
Sheet"), together with statements of operations, stockholders' equity and cash
flows of Butte for the year ended December 31, 1999 and
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the notes thereto and certain supplemental information (hereinafter
collectively called the "Butte Financial Statements").
5.08 MARKETABLE TITLE TO ASSETS. Butte has good and marketable title
to the properties and assets reflected on the 1999 Butte Balance Sheet as
being owned by Butte, and all properties and assets thereafter acquired by it,
except to the extent such properties and assets are or were thereafter
disposed of for fair value in the ordinary course of business; all such
properties and assets are free and clear of all liens, charges and
encumbrances, except (i) those set forth or reflected in the 1999 Butte
Balance Sheet, (ii) liens for taxes not yet due and payable or being contested
in good faith, or (iii) defects in title and liens, charges and encumbrances,
if any, as do not materially detract from the value, or materially interfere
with the present or proposed use, of the property or assets subject thereof or
affected thereby, or otherwise materially impair business operations of Butte,
taken as a whole. The operation of the properties and business of Butte in
the manner in which they are now operated do not, to the knowledge of Butte,
violate any zoning ordinances or municipal regulations in such a way as could,
if such ordinances or regulations were enforced, result in any material
impairment of the uses of the respective properties for the purposes for which
they are now operated. All real and personal property leased by Butte is held
by Butte under valid, subsisting and enforceable leases.
5.9 TAXES AND RETURNS. Butte has timely filed all federal, state,
local and foreign tax returns required to be filed by it. All taxes and
governmental charges levied or assessed against the property or the business
of Butte have been paid, other than taxes or charges, the payment of which is
not yet due or which, if due, is not yet delinquent or is being contested in
good faith or has not been finally determined. The amount set up as accruals
for taxes on the 1997 Butte Balance Sheet is sufficient in all material
respects for the payment of all unpaid taxes and governmental charges of all
kinds, applicable to the property or business of Butte for the period ended on
December 31, 1999, and all periods prior thereto.
5.10 LAW COMPLIANCE. To its actual knowledge, Butte has complied with
all laws, regulations, licensing requirements and orders applicable to its
business the breach or violation of which could have a material adverse effect
on said business and has filed with the proper authorities, all statements and
reports required by the laws, regulations, licensing requirements and orders
to which it or any of its employees is subject, and Butte possesses all
necessary licenses, franchises and permits to conduct its business in the
manner in which and in the jurisdictions and places where such businesses are
now conducted.
5.11 FINDER'S FEES AND BROKERAGE. No director, officer or employee
of Butte has incurred or will incur any brokerage, finder's or similar fee in
connection with the merger or the other transactions contemplated by this
Agreement.
5.12 ENVIRONMENTAL MATTERS. (a) For purposes of this Agreement, the
capitalized terms defined below shall have the meanings ascribed to them below.
(i) "Environmental Claim" means any accusation, allegation,
notice of violation, action, claim, lien, demand, abatement or other
order or direction (conditional or otherwise)
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by any governmental agency or entity or any other Person for personal
injury (including sickness, disease or death), tangible or intangible
property damage, damage to the environment, nuisance, pollution,
contamination or other adverse effects an the environment, or for
fines, penalties or restrictions resulting from or based upon (a) the
existence, or the continuation of the existence, of a Release
(including, without limitation, sudden or non-sudden accidental or
non-accidental Releases) of, or exposure to, any Hazardous Substance,
odor or audible noise in, into or onto the environment (including,
without limitation, the air, soil, surface water or groundwater) at,
in, by, from or related to any property owned, operated or leased by
the Company or any activities or operations thereof; (b) the
transportation, storage, treatment or disposal of Hazardous Substances
in connection with any property owned, operated or leased by the
Company or its operations or facilities; or (c) the violation, or
alleged violation, of any Environmental Law or Environmental Permit of
or from any governmental agency or entity relating to environmental
matters connected with any property owned, leased or operated by the
Company.
(ii) "Environmental Law(s)" means all federal, state or local
law (including common law), statute, ordinance, rule, regulation, code,
or other requirement relating to the environment, natural resources, or
public or employee health and safety and includes, but is not limited
to the Comprehensive Environmental Response Compensation and Liability
Act ("CERCLA"), 42 U.S.C. Section 9601 et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801 et seq., The Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section 6901 et
seq., the Clean Water Act, 33 U.S.C. Section 1251 et seq., the Clean
Air Act, 33 U.S.C. Section 2601 et seq., the Toxic Substances Control
Act, 15 U.S.C. Section 2601 et seq., the Oil Pollution Act of 1990, 33
U.S.C. Section 2701 et seq., and the Occupational Safety and Health
Act, 29 U.S.C. Section 651 et seq., as such laws have been amended or
supplemented, and the regulations promulgated pursuant thereto, and all
analogous state or local statutes and any applicable transfer statutes.
(iii) "Environmental Permits" means all approvals,
authorizations, consents, permits, licenses, registrations and
certificates required by any applicable Environmental Law.
(iv) "Hazardous Substance(s)" means, without limitation, any
flammable explosives, radioactive materials, urea formaldehyde foam
insulation, polychlorinated biphenyls, petroleum and petroleum products
(including but not limited to waste petroleum and petroleum products),
methane, hazardous materials, hazardous wastes, pollutants, contaminants
and hazardous or toxic substances, as defined in or regulated under any
applicable Environmental Laws.
(v) "Release" means any past or present spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping or disposing of a Hazardous Substance into the
Environment.
(b) Butte has obtained all Environmental Permits required for its
businesses and facilities except for such Environmental Permits the failure of
which to obtain could not reasonably be expected to have a Material Adverse
Effect. Butte (i) is in compliance with all terms and conditions
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of their Environmental Permits and of any applicable Environmental Law, except
for such failure to be in compliance that could not reasonably be expected to
have Material Adverse Effect; (ii) has not received notice of any violation by
or claim against Butte under any Environmental Law; and (iii) is not aware of
any facts or circumstances related to their businesses and facilities likely
to give rise to an Environmental Claim that could reasonably be expected to
have a Material Adverse Effect.
(c) There have been no Releases, or threatened Releases of any
Hazardous Substances into, on or under any of the properties owned or operated
(or formerly owned or operated) by Butte in any case in such a way as to
create any liability (including the costs of investigation and remediation)
under any applicable Environmental Law that could reasonably be expected to
have a Material Adverse Effect.
(d) Butte has not been identified as a potentially responsible party
at any federal or state National Priority List ("Superfund") site, and Butte
has not transported, disposed of, or arranged for the disposal of any
Hazardous Substances.
5.13 BENEFIT PLANS. Butte does not have any employee benefit
plans, policies, programs, practices, agreements, understandings, arrangements
or commitments (whether written or underwritten) providing compensation,
benefits or perquisites of any kind, including executive compensation,
deferred compensation, stock ownership, stock purchase, stock option,
restricted stock, performance share, bonus and other incentive plans, pension,
profit sharing, savings, thrift or retirement plans, employee stock ownership
plans, life, health, dental and disability plans, vacation, severance pay,
sick leave or dependent care plans, any cafeteria or tuition reimbursement
plans and any "employee benefit plans" within the meaning of Section g(3) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA")
(whether or not subject to ERISA), employment, severance, golden parachute or
similar agreements (individually, an "Employee Benefit Plan" and collectively,
the "Employee Benefit Plans"), currently or within the past six years
maintained by, contributed by or with respect to which an obligation to
contribute exists on the part of Butte or any of its trades or businesses,
whether or not incorporated, which, together with Butte, is treated as a
single employer under Section 414 of the Code (collectively, "ERISA
Affiliates"), or with respect to which Butte or any ERISA Affiliate may have
any liability or obligation (direct, indirect, contingent or otherwise) to any
employee, former employee, director or former director (or any of their
dependents or beneficiaries) of Butte or to any governmental entity. There
are no material liabilities, whether absolute or contingent, of Butte relating
to workers compensation benefits that are not fully insured against by a BONA
FIDE third-party insurance carrier.
5.14 ACCURACY OF INFORMATION. All written information regarding Butte
previously delivered to Parent, including all financial information and
statements provided by Butte to Parent, is true and correct. All additional
information regarding Butte to be delivered to Parent pursuant to this
Agreement will be true and correct. Other than the properties shown on the
Butte Financial Statements and 1999 Butte Balance Sheet, there are no
properties, tangible or intangible, which are used in and material to the
normal day-to-day operations of Butte as conducted by Butte prior to and on
the date of this Agreement.
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5.15 LACK OF MATERIAL MISREPRESENTATION. Butte represents and
warrants that all the information and documents furnished by Butte to Parent
in connection with this Agreement contain no untrue statement of material
facts nor do they omit material facts necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading.
ARTICLE SIX
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to Butte as follows:
6.01 ORGANIZATION. Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of Oklahoma and has
the corporate power and is entitled to own or lease its properties and to
carry on its business as, and in the places where, such properties are now
owned or leased and such business is now conducted. The State of Oklahoma is
the only jurisdiction in which the property owned or leased or the business
conducted by Parent would make any such qualifications necessary.
6.02 DELIVERY OF CERTIFICATE OF INCORPORATION AND BYLAWS. Parent has
delivered to Butte complete and correct copies of the Certificate of
Incorporation of Parent and its Bylaws in effect on the date hereof.
6.03 CAPITALIZATION. The total number of shares of capital stock
which Parent is authorized to issue is 50,000,000 shares of Common Stock,
$.001 par value, of which 9,877,351 shares are issued and outstanding and
Parent has no treasury stock. There are no other authorized or outstanding
equity securities of Parent of any class, kind or character, and there are no
outstanding subscriptions, options, warrants or other agreements or
commitments obligating Parent to issue any additional shares of its capital
stock of any class, or any option or right with respect thereto, or any
securities convertible into shares of any class. All outstanding shares of
Common Stock of Parent are duly and validly authorized and issued, and have
not been issued in violation of any preemptive right of shareholders. Prior
to the Effective Time, Parent shall cause a one-for-five reverse split of its
Common Stock so that immediately prior to the Effective Time Parent shall have
1,975,470 shares of Common Stock issued and outstanding, without giving effect
to the elimination of any fractional shares of Common Stock, all fractional
shares shall be rounded to the next whole share.
6.04 SUBSIDIARIES. Other than Acquisition Corp., Omnipresent
Exploration, Potomac Energy (BVI), Ltd. and Xxxxxxxxx Energia, L.L.C. Parent
does not have any subsidiaries.
6.05 AUTHORIZATION OF AGREEMENT. The Board of Directors of Parent and
Acquisition Corp have duly approved this Agreement and the transactions
contemplated hereby and has authorized the execution and delivery of this
Agreement by Parent and Acquisition Corp. Parent and Acquisition Corp have
full power, authority and legal right to enter into this Agreement and to
consummate the transactions contemplated therein.
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6.06 CONFLICTING AGREEMENTS. Neither the execution nor the delivery
of this Agreement, nor the consummation of the transactions contemplated
hereby in accordance with the terms of this Agreement, will conflict with, or
result in a breach of, any term of, or constitute a default under, (i) the
Certificate of Incorporation or Bylaws of Parent and Acquisition Corp, or (ii)
any material agreement or instrument to which Parent or Acquisition Corp is a
party, or (iii) any material judgment, decree, order, statute, rule or
regulation to which Parent or Acquisition Corp is subject, or result in the
creation of material lien, charge or encumbrance on any of the properties of
Parent or Acquisition Corp, other than the merger of Butte with and into
Acquisition Corp and the other transactions contemplated in this Agreement.
Each of Parent and Acquisition Corp is not in default or would be in default
with lapse of time or notice or both, in respect to any such term.
6.07 DELIVERY OF FINANCIAL STATEMENTS. Parent has furnished Butte the
consolidated balance sheet of Parent as of December 31, 1999 (the "1999 Parent
Balance Sheet"), together with statements of operations, stockholders' equity
and cash flows of Parent for the year ended December 31, 1999, and the notes
thereto and certain supplemental information (hereinafter collectively called
the "Parent Financial Statements").
6.08 MARKETABLE TITLE TO ASSETS. Parent has good and marketable title
to the properties and assets reflected on the 1999 Parent Balance Sheet as
being owned by Parent, and all properties and assets thereafter acquired by
it, except to the extent such properties and assets are or were thereafter
disposed of for fair value in the ordinary course of business; all such
properties and assets are free and clear of all liens, charges and
encumbrances, except (i) those set forth or reflected in the 1999 Parent
Balance Sheet, (ii) liens for taxes not yet due and payable or being contested
in good faith, or (iii) defects in title and liens, charges and encumbrances,
if any, as do not materially detract from the value, or materially interfere
with the present or proposed use, of the property or assets subject thereof or
affected thereby, or otherwise materially impair business operations of
Parent, taken as a whole. The operation of the properties and business of
Parent in the manner in which they are now operated do not, to the knowledge
of Parent, violate any zoning ordinances or municipal regulations in such a
way as could, if such ordinances or regulations were enforced, result in any
material impairment of the uses of the respective properties for the purposes
for which they are now operated. All real and personal property leased by
Parent is held by Parent under valid, subsisting and enforceable leases.
6.9 TAXES AND RETURNS. Parent has timely filed all federal, state,
local and foreign tax returns required to be filed by it. All taxes and
governmental charges levied or assessed against the property or the business
of Parent have been paid, other than taxes or charges, the payment of which is
not yet due or which, if due, is not yet delinquent or is being contested in
good faith or has not been finally determined. The amount set up as accruals
for taxes on the 1997 Parent Balance Sheet is sufficient in all material
respects for the payment of all unpaid taxes and governmental charges of all
kinds, applicable to the property or business of Parent for the period ended
on December 31, 1999, and all periods prior thereto.
6.10 LAW COMPLIANCE. To its actual knowledge, Parent has complied
with all laws, regulations, licensing requirements and orders applicable to
its business the breach or violation of
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which could have a material adverse effect on said business and has filed with
the proper authorities, all statements and reports required by the laws,
regulations, licensing requirements and orders to which it or any of its
employees is subject, and Parent possesses all necessary licenses, franchises
and permits to conduct its business in the manner in which and in the
jurisdictions and places where such businesses are now conducted.
6.11 FINDER'S FEES AND BROKERAGE. No director, officer or employee of
Parent has incurred or will incur any brokerage, finder's or similar fee in
connection with the merger or the other transactions contemplated by this
Agreement.
6.12 ENVIRONMENTAL MATTERS. (a) Parent has obtained all
Environmental Permits required for its businesses and facilities except for
such Environmental Permits the failure of which to obtain could not reasonably
be expected to have a Material Adverse Effect. Parent (i) is in compliance
with all terms and conditions of their Environmental Permits and of any
applicable Environmental Law, except for such failure to be in compliance that
could not reasonably be expected to have Material Adverse Effect; (ii) has not
received notice of any violation by or claim against Parent under any
Environmental Law; and (iii) is not aware of any facts or circumstances
related to their businesses and facilities likely to give rise to an
Environmental Claim that could reasonably be expected to have a Material
Adverse Effect.
(b) There have been no Releases, or threatened Releases of any
Hazardous Substances into, on or under any of the properties owned or operated
(or formerly owned or operated) by Parent in any case in such a way as to
create any liability (including the costs of investigation and remediation)
under any applicable Environmental Law that could reasonably be expected to
have a Material Adverse Effect.
(c) Parent has not been identified as a potentially responsible party
at any federal or state Superfund site, and Parent has not transported,
disposed of, or arranged for the disposal of any Hazardous Substances.
6.13 BENEFIT PLANS. Parent does not have any Employee Benefit
Plans (whether or not subject to ERISA), currently or within the past six
years maintained by, contributed by or with respect to which an obligation to
contribute exists on the part of Parent or any of its ERISA Affiliates, or
with respect to which Parent or any ERISA Affiliate may have any liability or
obligation (direct, indirect, contingent or otherwise) to any employee, former
employee, director or former director (or any of their dependents or
beneficiaries) of Parent or to any governmental entity other than the current
Employee Employment Agreements and Employee Health Insurance Plan. There are
no material liabilities, whether absolute or contingent, of Parent relating to
workers compensation benefits that are not fully insured against by a BONA
FIDE third-party insurance carrier.
6.14 ACCURACY OF INFORMATION. All written information regarding
Parent previously delivered to Butte, including all financial information and
statements provided to Butte, is true and correct. All additional information
regarding Parent to be delivered to Butte pursuant to this Agreement will be
true and correct. Other than the properties shown on the Parent Financial
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Statements and 1999 Parent Balance Sheet, there are no properties, tangible or
intangible, which are used in and material to the normal day-to-day operations
of Parent as conducted by Parent prior to and on the date of this Agreement.
6.15 LACK OF MATERIAL MISREPRESENTATION. Parent represents and
warrants that all the information and documents furnished by Parent to Butte
in connection with this Agreement contain no untrue statement of material
facts nor do they omit material facts necessary in order to make the
statements made, in light of the circumstances under which they were made, not
misleading.
ARTICLE SEVEN
COVENANTS OF BUTTE
Between the date hereof and the Effective Time:
7.01 ACCESS TO ASSETS, PROPERTY AND RECORDS. Butte will afford to the
officers and authorized representatives of Parent reasonable access to the
offices, properties, books and records of Butte and will furnish Parent with
such additional financial and operating data and other information as to the
business and properties of Butte as may be reasonably necessary for Parent
thoroughly to evaluate, prior to the Effective Time, the business assets,
operations and financial conditions of Butte to include, without limitation,
tax returns filed and those in preparation of Butte. If, for any reason, the
Merger contemplated by this Agreement is not consummated, Butte will use its
best efforts to cause all confidential information obtained by it from Parent
to be treated as such and will not use such information in a manner
detrimental to Parent.
7.02 CONDUCT OF BUSINESS. Butte shall conduct its business in the
usual and ordinary course consistent with good corporate practices and
policies, and shall use its best efforts to preserve intact the present
business organization, keep available the services of its present officers and
employees, maintain its properties and business and to preserve the good will
of employees, customers and others having business dealings. Without the
prior written consent of Parent, Butte shall not engage in any activity or
enter into any transaction that would cause any of the representations or
warranties set forth in Article V to be inaccurate if made as of a date
subsequent to such activity or transaction.
7.03 SEC REPORTING COMPLIANCE AND COOPERATION. Butte will furnish
Parent with all information concerning Butte as may be required for inclusion
any filing made by Parent with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "1933 Act") or the Securities
Exchange Act of 1934, as amended ("1934 Act") or otherwise, or any other
governmental or regulatory body in connection with the transactions
contemplated by this Agreement. Butte represents and warrants that all
information so furnished for such statements and filing shall not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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7.04 PUBLIC ANNOUNCEMENTS. Butte will not, without prior consultation
with Parent, make any announcement to the public or any statement to its
employees generally concerning the transactions covered by this Agreement.
7.05 NOTIFICATION OF EVENTS. Butte will promptly give notice to
Parent of the occurrence of any event or the failure of any event to occur
that results in a breach of any representation or warranty by Butte or a
failure by Butte to comply with any covenant, condition or agreement contained
herein.
7.06 APPROVALS. Butte will use its best efforts to obtain all
licenses, consents or other approvals required to be obtained by Parent or
Acquisition Corp from any appropriate governmental agency or authority or
other person in connection with the carrying out of the transactions
contemplated by this Agreement.
7.07 PERFORMANCES. Butte will use its best efforts to perform or
cause to be satisfied each covenant or condition to be performed or satisfied
by it pursuant hereto.
7.08 SHAREHOLDER APPROVAL. Each of the Butte Shareholders hereby
covenants and agrees that he or she has read and has been fully advised by
legal counsel as to the meaning and effect of this Agreement and the
transactions to be effected by this Agreement, and that he or she hereby
approves this Agreement and the transactions contemplated in this Agreement.
By execution of this Agreement, (i) each of the Butte Shareholders hereby
votes all of the issued and outstanding shares of the Butte Common Stock in
favor of approval of this Agreement and the transactions contemplated in this
Agreement and (ii) each of the Butte Shareholders hereby consents to all
corporate action required to consummate the transactions contemplated in this
Agreement without the necessity for a meeting of the shareholders of Butte, to
the extent and in the event shareholder approval shall be required for
approval of this Agreement and the transactions contemplated in and to be
effect by this Agreement.
ARTICLE EIGHT
COVENANTS OF PARENT AND ACQUISITION CORP
Between the date hereof and the Effective Time:
8.01 ACCESS TO RECORDS. Parent and Acquisition Corp will afford to
the officers and authorized representatives of Butte access to the books and
records of Parent and Acquisition Corp, and will furnish Butte with such
additional information of Parent and Acquisition Corp as may be reasonably
requested by Butte. If, for any reason, the merger contemplated by this
Agreement is not consummated, Butte will use its best efforts to cause all
confidential information obtained by it from Parent and Acquisition Corp to be
treated as such and will not use such information in a manner detrimental to
Parent and Acquisition Corp.
8.02 CONDUCT OF BUSINESS. Parent and Acquisition Corp shall not
conduct any business other than in connection with the Merger and the other
transactions contemplated in this Agreement, and
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then only in the usual and ordinary course consistent with good corporate
practices and policies. Without the prior written consent of Butte, Parent
and Acquisition Corp shall not engage in any activity or enter into any
transaction that would cause any of the representations or warranties set
forth in Article VI to be inaccurate if made as of a date subsequent to such
activity or transaction.
8.03 REGULATORY COMPLIANCE. Parent and Acquisition Corp will furnish
Butte with all information concerning Parent and Acquisition Corp as may be
required by any governmental or regulatory agency in connection with the
transactions contemplated by this Agreement. Each of Parent and Acquisition
Corp represents and warrants that all information so furnished shall not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
8.04 PUBLIC ANNOUNCEMENTS. Parent and Acquisition Corp will not, without
prior consultation with Butte, make any announcement or other statement to the
public or any statement to its employees generally concerning the transactions
covered by this Agreement.
8.05 NOTIFICATION OF EVENTS. Parent and Acquisition Corp will promptly
give notice of the occurrence of any event or the failure of any event to occur
that results in a breach of any representation or warranty by Parent and
Acquisition Corp or a failure by Parent or Acquisition Corp to comply with any
covenant, condition or agreement contained herein.
8.06 APPROVALS. Parent and Acquisition Corp will use their best efforts
to obtain all licenses, consents or other approvals required to be obtained by
Parent and/or Acquisition Corp from any appropriate governmental agency or
authority or other person in connection with the carrying out of the
transactions contemplated by this Agreement.
8.07 PERFORMANCE OF THIS AGREEMENT. Parent and Acquisition Corp will use
their best efforts to perform or cause to be satisfied each covenant or
condition to be performed or satisfied by it pursuant hereto.
ARTICLE NINE
CONDITIONS TO OBLIGATIONS OF PARENT,
ACQUISITION CORP AND BUTTE
The obligations of Parent, Acquisition Corp and Butte to effect the
Merger hereunder are, at their respective elections, subject to the satisfaction
or waiver of the following conditions:
9.01 APPROVALS AND CONSENTS. Prior to the Effective Time, all necessary
orders, consents and approvals shall have been entered by each regulatory
authority having jurisdiction in the premises and all applicable statutory
waiting periods shall have expired, and the consent of any other party necessary
to approve the Merger or to the continued holding by Parent and Acquisition Corp
and by Butte of all rights in, to and under any contract, agreement, license,
permit, franchise, lease
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or other instrument and any property or assets, tangible or intangible,
reasonably deemed by Parent to be material to Butte (taken as a whole) or
reasonably deemed by Butte to be material to Parent (taken as a whole), shall
have been obtained.
ARTICLE TEN
FURTHER CONDITIONS TO OBLIGATIONS OF
PARENT AND ACQUISITION CORP
The obligation of Parent and Acquisition Corp to effect the Merger
hereunder, at their option, subject to the satisfaction or waiver of the
following further conditions:
10.01 REPRESENTATIONS AND PERFORMANCES. All of the representations and
warranties of Butte contained in this Agreement shall be true in all material
respects as of the Effective Time as though such representations and warranties
were then made for the first time (other than those representations and
warranties which are specifically made as of a particular date or as of the date
of this Agreement); and Butte, in all material respects, shall have performed
all obligations and complied with all covenants required by this Agreement to be
performed and complied with by it or them prior to the Effective Time. As of
the Effective Time, Parent and Acquisition Corp shall have received a
certificate, dated the date on which the Effective Time is to occur, executed by
the President of Butte, certifying in such detail as Parent and Acquisition Corp
may request as to the accuracy of such representations and warranties and the
fulfillment of such obligations and compliance with such covenants as of the
Effective Time.
ARTICLE ELEVEN
FURTHER CONDITIONS TO OBLIGATIONS OF BUTTE
The obligations of Butte to effect the Merger hereunder is, at their
option, subject to the satisfaction or waiver of the following further
conditions:
11.01 REPRESENTATIONS AND PERFORMANCES. All of the representations and
warranties of Parent and Acquisition Corp contained in this Agreement shall be
true in all material respects as of the Effective Time as though such
representations and warranties were then made for the first time (other than
those representations and warranties which are specifically made as of a
particular date or as of the date of this Agreement); and Parent and Acquisition
Corp, in all material respects, shall have performed all obligations and
complied with all covenants required by this Agreement to be performed and
complied with by each of them prior to the Effective Time. As of the Effective
Time, Butte shall have received a certificate dated the date on which the
Effective Time is to occur, executed by the Chairman, President or a Vice
President and by the Treasurer or Chief Financial Officer of Parent and
Acquisition Corp certifying in such detail as Butte may request as to the
accuracy of such representations and warranties and the fulfillment of such
obligations and compliance with such covenants as of the Effective Time.
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ARTICLE TWELVE
ABANDONMENT OF MERGER
12.01 TERMINATION AND ABANDONMENT. This Agreement may be terminated and
the merger abandoned at any time prior to the Effective Time:
(a) By mutual agreement of the Boards of Directors of Parent and
Acquisition Corp and Butte;
(b) At the option of the Board of Directors of Butte in the event
that by June 30, 2000, the conditions set forth in Articles Nine and
Eleven shall not have been satisfied or waived;
(c) At the option of the Board of Directors of Parent and
Acquisition Corp in the event that by June 30, 2000, the conditions set
forth in Articles Nine and Ten shall not have been satisfied or waived.
12.02 NOTIFICATION. In the event of termination by the Boards of
Directors of Parent and Acquisition Corp or Butte as provided above, written
notice shall forthwith be given to the other parties.
12.03 EFFECT. In the event of termination of this Agreement and
abandonment of the Merger either by Parent and Acquisition Corp or by Butte as
provided in this Agreement, this Agreement shall forthwith become wholly void
and of no effect, and there shall be no liability on the part of either Parent
and Acquisition Corp or Butte, except that the indemnification agreements
relating to payment of expenses set forth in this Agreement shall survive any
such termination and abandonment.
ARTICLE THIRTEEN
SURVIVAL OF REPRESENTATIONS WARRANTIES
AND COVENANTS AND INDEMNIFICATION
13.01 SURVIVAL. The representations, warranties, covenants and
agreements respectively made by Parent, Acquisition Corp or Butte in this
Agreement or on any certificate delivered pursuant to the provisions hereof,
shall survive, and shall not terminate on, the Effective Time and the
consummation of the transactions contemplated under this Agreement.
13.02 AVAILABLE REMEDIES. Each party expressly agrees that, consistent
with its intention and agreement to be bound by the terms of this Agreement and
to consummate the transactions contemplated hereby, subject only to the
satisfaction of conditions precedent, the remedy of specific performance shall
be available to a non-breaching and non-defaulting party to enforce performance
of this Agreement by a breaching or defaulting party, including, without
limitation, to require the consummation of the Merger pursuant to this
Agreement.
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13.03 INDEMNITY. (a) Parent and Acquisition Corp, in addition to the
remedies accorded the parties in Section 13.02 above, agree to indemnify and
hold Butte harmless from and against any and all claims, actions, causes of
action, damages, costs and expenses, including without limitation attorneys'
fees, arising from or relating to a breach by the Parent or Acquisition Corp of
the representations, warranties, covenants and agreements set forth in this
Agreement.
(b) Butte, in addition to the remedies accorded the parties in Section
13.02 above, agrees to indemnify and hold Parent and Acquisition Corp harmless
from and against any and all claims, actions, causes of action, damages, costs
and expenses, including without limitation attorneys' fees, arising from or
relating to a breach by Butte of the representations, warranties, covenants and
agreements set forth in this Agreement.
13.04 RESCISSION AND OTHER RELIEF. Each of Parent, Acquisition Corp and
Butte acknowledge that Parent and Acquisition Corp, on the one hand, and Butte,
on the other hand, would be irreparably damaged and that money damages and any
other remedy available at law would be inadequate to re-dress or remedy any loss
in the event that any of (i) any misrepresentation, or breach of warranty under
this Agreement, (ii) nonfulfillment or failure to perform any covenant or
agreement under this Agreement, or (iii) related and attributable to, or
asserted against a party hereto, each of Parent, Acquisition Corp and Butte, in
addition to recovering any claim for damages or obtaining any other remedy
available at law, also shall be entitled to rescission of the Merger and shall
be entitled to obtain any other appropriate remedy available in equity or in
law, and that each of Parent and Acquisition Corp and Butte hereby waives its
right to assert and will not assert in defense that any other adequate legal
remedy is available.
ARTICLE FOURTEEN
MISCELLANEOUS
14.01 NOTICES. Any notice, request, instruction, document or other
communication required or permitted to be given under this Agreement after the
date hereof shall be in writing (including telex and telegraphic communication)
by any party hereto to any other party either (as elected by the party giving
such notice) personally delivered or sent by registered or certified mail,
postage pre-paid, return receipt requested, as follows:
(a) If to Parent or Acquisition Corp, to
Xx. Xxxx X. Xxxx, Chief Executive Officer
Potomac Energy Corporation
0000 Xxxxxxxxx Xxxxxxxxxx, Xxxxx 0000X
Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000
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(b) If to Butte, to
Xx. Xxxxxxxx Xxxx, Xx.
0000 Xxx Xxx Xx.
Xxx Xxxxx, Xxxxxx 00000
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (i) on the
date delivered if by personal delivery, (ii) on the date telecommunicated if by
telegraph, (iii) on the date of transmission with confirmed answer if by telex,
telefax or other telegraphic method, and (iv) on the date upon which return
receipt is signed or delivery is refused or the notice is designated by the
postal authorities as not deliverable, as the case may be, if mailed.
14.02 EXPENSES. Parent and Acquisition Corp shall separately bear the
expenses of Parent and Acquisition Corp, and Butte shall separately bear the
expenses of Butte incurred in connection with this Agreement and in connection
with all things required to be done hereunder. Notwithstanding the foregoing,
in the event of the failure to consummate the merger which results from a
misrepresentation or failure to perform a covenant or agreement on the part of a
party hereto (the "defaulting party"), defaulting party shall, in addition to
bearing and paying all costs and expenses incurred by it, bear and pay all costs
and expenses incurred by other parties hereto in connection with the proceedings
relating to the merger.
14.03 AMENDMENT. This Agreement may be amended at any time prior to the
Effective Time by a written instrument executed by Parent and Acquisition Corp,
and Butte with the approval of their respective Boards of Directors.
14.04 KNOWLEDGE DEFINED. Whenever a representation or warranty is made
herein as being "to the actual knowledge of" or "to the knowledge of" or "known"
to or in "the opinion of" a corporation, it is understood that an officer of
such corporation has made or caused to be made (and the results thereof reported
to him) an investigation which is appropriate to determine the accuracy of such
representation or warranty by personnel or agents of such corporation competent
to perform such investigation and to determine the accuracy thereof, and any
such representation or warranty shall be deemed to be inaccurate if any officer
of such corporation on the basis of such investigation, or otherwise, has any
knowledge of any fact that would render such representation or warranty
inaccurate or such opinion inappropriate.
14.05 ENTIRE AGREEMENT. This Agreement and the documents and
instruments referred to herein constitute the entire Agreement between the
parties hereto and supersede all other understandings with respect to the
subject matter hereof. This Agreement shall be governed by and construed in
accordance with the laws of the State of Oklahoma without regard to principles
of conflict of law.
14.06 COUNTERPARTS. For the convenience of the parties hereto and to
facilitate the filing and recording of this Agreement, it may be executed in one
or more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
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14.07 BINDING EFFECT. All of the term and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of, and
be enforceable by the parties and their respective administrators, personal
representatives, legal representatives, heirs, successors and permitted assigns.
14.08 ASSIGNABILITY. No party shall assign his or its rights and/or
obligations hereunder without the prior written consent of each of the other
parties to this Agreement.
14.09 HEADINGS. The headings contained in this Agreement are for
convenience of reference only, are not to be considered a part hereof and shall
not limit or otherwise affect in any way the meaning or interpretation of this
Agreement.
14.10 INVALID PROVISIONS. In the event any provision of this Agreement
or any other agreement entered into pursuant hereto is contrary to, prohibited
by or deemed invalid under applicable law or regulation, such provision shall be
inapplicable and deemed omitted to the extend so contrary, prohibited or
invalid, but the remainder thereof shall not be invalidated thereby and shall be
given full force and effect so far as possible. In the event any provision of
this Agreement may be construed in two or more ways, one of which would render
the provision invalid or otherwise voidable or unenforceable and another of
which would render the provision valid and enforceable, such provision shall
have the meaning which renders it valid and enforceable.
14.11 WAIVER OF PERFORMANCE. The failure or delay of any party at any
time to require performance by another party of any provision of this Agreement,
even if known, shall not affect the right of such party to require performance
of that provision or to exercise any right, power or remedy hereunder. Any
waiver by any party of any breach of any provision of this Agreement shall not
be construed as a waiver of any continuing or succeeding breach of such
provision, a waiver of any continuing or succeeding breach of such right, power
or remedy under this Agreement. No notice to or demand on any party in any case
shall, of itself, entitle such party to any other or further notice or demand in
similar or other circumstances.
14.12 ATTORNEYS' FEES AND COSTS. In the event any legal action or other
proceeding is brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default or misrepresentation in connection with any
provision of this Agreement, the successful or prevailing party or parties shall
be entitled to recover reasonable attorneys' fees, sales and use taxes, court
costs and all expenses even though not taxable as court costs (including,
without limitation, all such fees, taxes, costs and expenses incident to
arbitration, appellate, bankruptcy and post-judgment proceedings), incurred in
that action or proceeding, in addition to any other relief to which such party
or parties may be entitled. Attorneys' fees shall include, without limitation,
paralegal fees, investigative fees, administrative costs, sales and use taxes
and all other charges billed by the attorney to the prevailing party.
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IN WITNESS WHEREOF, Parent, Acquisition Corp and Butte have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first above written.
"Parent" POTOMAC ENERGY CORPORATION,
An Oklahoma Corporation
By: /s/ Xxxx X. Xxxx
--------------------------------------
Xxxx X. Xxxx, Chief Executive Officer
"Constituent Corporations"
"Acquisition Corp" POTOMAC EXPLORATION ACQUISITION CORPORATION,
an Oklahoma Corporation
By: /s/ Xxxx X. Xxxx
--------------------------------------
Xxxx X. Xxxx, Chief Executive Officer
BUTTE COAL, INC.,
"Surviving Corporation" A Nevada Corporation
By: /s/ Xxxxxxxx Xxxx, Xx.
--------------------------------------
Xxxxxxxx Xxxx, Xx., Chief Executive Officer
