EXHIBIT 10.59
AGREEMENT AND PLAN OF MERGER
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AGREEMENT AND PLAN OF MERGER, dated as of September 30, 2004 (this
"Agreement"), among XXXXX-XXXXXXXX CORPORATION, a Delaware corporation
("Parent"), JENS' ACQUSITION CORP., a Texas corporation and a direct, wholly
owned subsidiary of Parent ("Merger Sub"), and JENS' OIL FIELD SERVICE, INC., a
Texas corporation (the "Company").
W I T N E S S E T H:
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WHEREAS, each of the Boards of Directors of Parent, Merger Sub and the
Company has determined that it is advisable and in the best interests of their
respective stockholders for Parent to cause Merger Sub to merge with and into
the Company upon the terms and subject to the conditions set forth herein in
order to facilitate the Parent owning 100% of the stock of the Company, and
which would allow the Parent to further its efforts to obtain certain financing,
facilitate a public offering of the Parent's Common Stock and for Parent to
acquire the 19% of the Company which it does not own;
WHEREAS, in furtherance of such combination, each of the Boards of
Directors of Parent, Merger Sub and the Company has approved the merger (the
"Merger") of Merger Sub with and into the Company in accordance with the
applicable provisions of the Texas Business Corporation Act ("TBCA "), and upon
the terms and subject to the conditions set forth herein;
WHEREAS, Parent, Merger Sub and the Company intend, by approving
resolutions authorizing this Agreement, to adopt this Agreement as a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended (the "Code"), and the regulations promulgated thereunder; and
WHEREAS, pursuant to the Merger, each outstanding share (a "Share") of
the Company's Common Stock, no par value per share (the "Company Common Stock"),
shall be converted into the right to receive the Merger consideration described
in Section 1.6(a), upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent, Merger Sub and the Company hereby agree as follows:
ARTICLE I
THE MERGER
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Section 1.1 THE MERGER.
(a) EFFECTIVE TIME. At the Effective Time (as defined in
Section 1.2), and subject to and upon the terms and conditions of this
Agreement, the TBCA, Merger Sub shall be merged with and into the Company, the
separate corporate existence of Merger Sub shall cease, and the Company shall
continue as the surviving corporation. The Company as the surviving corporation
after the Merger is hereinafter sometimes referred to as the "Surviving
Corporation."
(b) CLOSING. Unless this Agreement shall have been terminated
and the transactions herein contemplated shall have been abandoned pursuant to
this Agreement and subject to the satisfaction or waiver of the conditions set
forth in Article IV, the consummation of the Merger will take place as promptly
as practicable (and in any event within two business days) after satisfaction or
waiver of the conditions set forth in Article IV at the offices of
Xxxxx-Xxxxxxxx Corporation, 0000 Xxxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000,
unless another date, time or place is agreed to in writing by the parties
hereto.
Section 1.2 EFFECTIVE TIME. As promptly as practicable after the
satisfaction or waiver of the conditions set forth in Article IV, the parties
hereto shall cause the Merger to be consummated by articles of merger as
contemplated by the TBCA (the "Certificate of Merger"), together with any
required related certificates, with the Secretary of State of the State of
Texas, in such forms as required by, and executed in accordance with the
relevant provisions of the TBCA (the time of the latter of such filings being
the "Effective Time").
Section 1.3 EFFECT OF THE MERGER. At the Effective Time, the effect of
the Merger shall be as provided in this Agreement, the Certificate of Merger and
the applicable provisions of the TBCA. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time all the property, rights,
privileges, powers and franchises of the Company and Merger Sub shall vest in
the Surviving Corporation, and all debts, liabilities and duties of the Company
and Merger Sub shall become the debts, liabilities and duties of the Surviving
Corporation.
Section 1.4 ARTICLES OF INCORPORATION; BY-LAWS.
(a) ARTICLES OF INCORPORATION. Unless otherwise determined by
Parent prior to the Effective Time, at the Effective Time the Articles of
Incorporation of the Company, as in effect immediately prior to the Effective
Time, shall be the Articles of Incorporation of the Surviving Corporation until
thereafter amended as provided by the TBCA and such Articles of Incorporation;
PROVIDED, HOWEVER, that a new Article IX shall be added as follows:
"Each person who is or was a director or officer of the
corporation and each person who, while a director or officer of the
corporation, is or was serving at the request of the corporation as a
director, officer, partner, venturer, proprietor, trustee, employee,
agent or similar functionary of another corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan or other
enterprise (including the heirs, executors, administrators or estate of
such person), shall be indemnified by the corporation to the full
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extent permitted from time to time by the Texas Business Corporation
Act or any other applicable laws as presently or hereafter in effect.
Without limiting the generality or the effect of the foregoing, the
corporation may enter into one or more agreements with any person which
provide for indemnification to the full extent permitted from time to
time by the Texas Business Corporation Act or any other applicable laws
as presently or hereafter in effect. Any repeal or modification of this
Article shall not adversely affect any right or protection existing
hereunder at the time of such repeal or modification."
(b) BYLAWS. The By-laws of the Company, as in effect
immediately prior to the Effective Time, shall be the By-laws of the Surviving
Corporation until thereafter amended as provided by the TBCA, the Articles of
Incorporation of the Surviving Corporation and such By-laws.
Section 1.5 DIRECTORS AND OFFICERS. The directors of Merger Sub
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the Articles of
Incorporation and Bylaws of the Surviving Corporation, and the officers of the
Company immediately prior to the Effective Time shall be the initial officers of
the Surviving Corporation, in each case until their respective successors are
duly elected or appointed and qualified.
Section 1.6 EFFECT ON CAPITAL STOCK. At the Effective Time, by virtue
of the Merger and without any action on the part of the Parent, Merger Sub, the
Company or the holders of any of the following securities:
(a) CONVERSION OF SECURITIES. At the Effective Time, the
issued and outstanding Shares of Company Common Stock, subject to applicable
statutory provisions with respect to appraisal rights, any applicable
withholding requirements and adjustment as herein provided, shall be converted
into and become, and there shall be paid and issued, in exchange for the Company
Common Stock owned by Xxxx X. Xxxxxxxxx, Xx. ("Xxxxxxxxx"), an aggregate of
1,300,000 shares of Parent common stock, par value $0.15 per share (the "Parent
Common Stock"). The Parent which currently owns 81% of the outstanding Company
Common Stock will not be issued any Parent Common Stock in exchange for the
Company Common Stock owned by Parent. As used in this Agreement, "Merger
Consideration" shall mean the aggregate of 1,300,000 shares of Parent Common
Stock exchanged for Company Common Stock in the Merger. Each share of Company
Common Stock held in the treasury of the Company shall be cancelled as of the
date of the Effective Time, and no portion of the Merger Consideration shall be
payable with respect thereto.
(b) CANCELLATION. Each Share held in the treasury of the
Company, if any, shall, by virtue of the Merger and without any action on the
part of the holder thereof, cease to be outstanding, be cancelled and retired
without payment of any consideration therefor and cease to exist.
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(c) CAPITAL STOCK OF MERGER SUB. Each share of common stock,
$0.01 par value, of Merger Sub issued and outstanding immediately prior to the
Effective Time shall be converted into and exchanged for one validly issued,
fully paid and nonassessable share of common stock, no par value, of the
Surviving Corporation.
(d) FRACTIONAL SHARES. No certificates or scrip representing
less than one share of Parent Common Stock shall be issued upon the surrender
for exchange of a certificate or certificates which immediately prior to the
Effective Time represented outstanding Shares (the "Certificates"). In lieu of
any such fractional share, each holder of Shares who would otherwise have been
entitled to a fraction of a share of Parent Common Stock upon surrender of
Certificates for exchange shall be paid upon such surrender cash (without
interest) in an amount equal to such fraction multiplied by the Closing Price of
Parent Common Stock on the date of the Effective Time.
Section 1.7 EXCHANGE OF CERTIFICATES.
(a) EXCHANGE AGENT. Parent shall cause to be supplied, to or
for such bank or trust company as shall be mutually designated by the Company
and Parent (the "Exchange Agent"), in trust for the benefit of the holders of
Company Common Stock, for exchange in accordance with this Section 1.7, through
the Exchange Agent, certificates evidencing the shares of Parent Common Stock
issuable pursuant to Section 1.6 in exchange for outstanding Shares and the cash
to be paid in lieu of fractional shares.
(b) EXCHANGE PROCEDURES. As soon as reasonably practicable,
after the Effective Time, Parent will instruct the Exchange Agent to mail to
Xxxxxxxxx instructions to effect the surrender of the Certificates in exchange
for the certificates evidencing shares of Parent Common Stock. Upon surrender of
a Certificate for cancellation to the Exchange Agent, together with such letter
of transmittal, duly executed, and such other customary documents as may be
required pursuant to such instructions, Xxxxxxxxx shall be entitled to receive
in exchange for certificate(s) evidencing that number of whole shares of Parent
Common Stock which Xxxxxxxxx has the right to receive in accordance with Section
1.6 and the Certificate so surrendered shall forthwith be cancelled.
Section 1.8 STOCK TRANSFER BOOKS. At the Effective Time, the stock
transfer books of the Company shall be closed, and there shall be no further
registration of transfers of the Company Common Stock thereafter on the records
of the Company.
Section 1.9 NO FURTHER OWNERSHIP RIGHTS IN COMPANY COMMON STOCK. The
Merger Consideration delivered upon the surrender for exchange of Shares in
accordance with the terms hereof shall be deemed to have been issued in full
satisfaction of all rights pertaining to such Shares, and there shall be no
further registration of transfers on the records of the Surviving Corporation of
Shares which were outstanding immediately prior to the Effective Time. If, after
the Effective Time, Certificates are presented to the Surviving Corporation for
any reason, they shall be cancelled and exchanged as provided in this Article I.
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Section 1.10 LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any
Certificate shall have been lost, stolen or destroyed, the Exchange Agent shall
issue in exchange for such lost, stolen or destroyed Certificate, upon the
making of an affidavit of that fact by the holder thereof, such shares of Parent
Common Stock as may be required pursuant to Section 1.6; PROVIDED, HOWEVER, that
Parent may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed Certificate to
deliver a bond in such sum as it may reasonably direct as indemnity against any
claim that may be made against Parent or the Exchange Agent with respect to the
Certificate alleged to have been lost, stolen or destroyed.
Section 1.11 TAX AND ACCOUNTING CONSEQUENCES. It is intended by the
parties hereto that the Merger shall constitute a reorganization within the
meaning of Section 368 of the Code. The parties hereto hereby adopt this
Agreement as a "plan of reorganization" within the meaning of Section 1.368-2(g)
of the United States Treasury Regulations.
Section 1.12 TAKING OF NECESSARY ACTION; FURTHER ACTION. Each of
Parent, Merger Sub and the Company will take all such reasonable and lawful
action as may be necessary or appropriate in order to effectuate the Merger in
accordance with this Agreement as promptly as possible. If, at any time after
the Effective Time, any such further action is necessary or desirable to carry
out the purposes of this Agreement and to vest the Surviving Corporation with
full right, title and possession to all assets, property, rights, privileges,
powers and franchises of the Company and Merger Sub, the officers and directors
of the Company and Merger Sub immediately prior to the Effective Time are fully
authorized in the name of their respective corporations or otherwise to take,
and will take, all such lawful and necessary action.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent and Merger Sub
that, except as set forth in the written disclosure schedule delivered by the
Company to Parent (the "Company Disclosure Schedule"):
Section 2.1 CORPORATION ORGANIZATION. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Texas and has all requisite corporate power and authority to own, operate and
lease its properties and assets as and where the same are owned, operated or
leased and to conduct its business as it is now being conducted.
Section 2.2 CAPITALIZATION.
(a) The authorized capital stock of the Company consists of
100,000 shares of Company Common Stock, no par value and no shares of Preferred
Stock. As of the date hereof, 3,750 shares of Company Common Stock are issued
and outstanding of which the Parent owns 3,038 and 712 are owned by Xxxxxxxxx.
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(b) All outstanding shares of Company Common Stock are validly
issued and outstanding, fully paid and nonassessable, and, except as set forth
in the Company's Articles of Incorporation, there are no preemptive or similar
rights in respect of the Company Common Stock. All outstanding shares of Company
Common Stock issued and outstanding were issued in compliance with all
requirements of all applicable federal and state securities laws. Xxxxxxxxx and
Parent have terminated that certain Shareholders' Agreement dated February 1,
2002, between Parent and Xxxxxxxxx as of the Effective Time.
Section 2.3 AUTHORIZATION: EXECUTION AND DELIVERY. The Company has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement. The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all requisite
corporate action on the part of the Company, except that the Company's
stockholders are required to approve and adopt this Agreement. This Agreement
has been duly executed and delivered by the Company and, subject to such
stockholder approval, constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
Section 2.4 GOVERNMENTAL APPROVALS AND FILINGS. No approval,
authorization, consent, license, clearance or order of, declaration or
notification to, or filing or registration with, any governmental or regulatory
authority is required in order (a) to permit the Company to consummate the
Merger or perform its obligations under this Agreement, or (b) to prevent the
termination of, or materially and adversely affect, any governmental right,
privilege, authority, franchise, license, permit or certificate of the Company
to provide its services or carry on its business ("Governmental Licenses"),
except for filing and recording of Articles of Merger as required by the TBCA.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
PARENT AND MERGER SUB
Parent hereby represents and warrants to the Company that, except as
set forth in the written disclosure schedule delivered by Parent to the Company
(the "Parent Disclosure Schedule"):
Section 3.1 CORPORATION ORGANIZATION. Parent is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own, operate and
lease its properties and assets as and where the same are owned, operated or
leased and to conduct its business as it is now being conducted. Parent is in
good standing and duly qualified or licensed as a foreign corporation to do
business in those jurisdictions in which the location of the property and assets
owned, operated or leased by Parent or the nature of the business conducted by
Parent makes such qualification or licensing necessary, except where the failure
to be so qualified or licensed would not reasonably be expected to have a
material adverse effect.
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Section 3.2 CAPITALIZATION. The authorized capital stock of Parent
consists of 20,000,000 shares of Parent Common Stock, par value$.01 per share
and 10,000,000 shares of Preferred Stock, par value $.01 per share. As of the
date hereof, 9,783,681 shares of Parent Common Stock and no shares of Preferred
Stock are issued and outstanding.
All outstanding shares of Parent Common Stock are validly
issued and outstanding, fully paid and nonassessable, and, except as set forth
in Parent's Certificate of Incorporation, there are no preemptive or similar
rights in respect of Parent Common Stock.
Section 3.3 SUBSIDIARIES.
(a) Merger Sub is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to own,
operate and lease its properties and assets as and where the same are owned,
operated or leased by Merger Sub and to conduct its business as it is now being
conducted.
(b) Parent has good and valid title to all shares of Merger
Sub, free and clear of all Encumbrances. All of the outstanding shares of
capital stock of Merger Sub are validly issued, fully paid and nonassessable,
and there are no preemptive or similar rights in respect of any shares of
capital stock of Merger Sub. All of the outstanding shares of Merger Sub were
issued in compliance with all requirements of all applicable federal and state
securities laws.
Section 3.4 AUTHORIZATION; EXECUTION AND DELIVERY. Parent and Merger
Sub each has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. The execution, delivery and
performance of this Agreement by Parent and Merger Sub and the consummation by
Parent or Merger Sub of the transactions contemplated hereby have been duly
authorized by all requisite corporate action on the part of Parent and Merger
Sub. This Agreement has been duly executed and delivered by Parent and Merger
Sub and, constitutes the legal, valid and binding obligation of Parent and
Merger Sub, enforceable against Parent and Merger Sub in accordance with its
terms. The shares of Parent Common Stock to be issued as part of the Merger
Consideration have been duly reserved and authorized for issuance upon
consummation of the Merger, and when issued pursuant to and in accordance with
this Agreement will be duly authorized, validly issued, fully paid and
nonassessable shares of Parent Common Stock.
Section 3.5 GOVERNMENTAL APPROVALS AND FILINGS. No approval,
authorization, consent, license, clearance or order of, declaration or
notification to, or filing or registration with, any governmental or regulatory
authority is required in order (a) to permit Parent or Merger Sub to consummate
the Merger or perform its obligations under this Agreement, or (b) to prevent
the termination of, or materially and adversely affect, any Governmental License
of Parent or Merger Sub to provide its services or carry on its business, or to
prevent any material loss or disadvantage to Parent's business, by reason of the
Merger, except for filing and recording of the Certificate of Merger as required
by the TBCA.
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ARTICLE IV
CONDITIONS TO THE MERGER
Section 4.1 CONDITIONS TO OBLIGATION OF EACH PARTY TO EFFECT THE
MERGER. The respective obligations of each party to effect the Merger shall be
subject to the satisfaction at or prior to the Effective Time of the following
conditions:
(a) GOVERNMENTAL ACTIONS. There shall not have been
instituted, pending or threatened any action or proceeding (or any investigation
or other inquiry that might result in such an action or proceeding) by any
governmental authority or administrative agency before any governmental
authority, administrative agency or court of competent jurisdiction, domestic or
foreign, nor shall there be in effect any judgment, decree or order of any
governmental authority, administrative agency or court of competent
jurisdiction, or any other legal restraint (i) preventing or seeking to prevent
consummation of the Merger, (ii) prohibiting or seeking to prohibit or limiting
or seeking to limit Parent from exercising all material rights and privileges
pertaining to its ownership of the Surviving Corporation or the ownership or
operation by Parent of all or a material portion of its business or assets, or
(iii) compelling or seeking to compel Parent to dispose of or hold separate all
or any material portion of its business or assets (including the Surviving
Corporation), as a result of the Merger or the transactions contemplated by this
Agreement; and
(b) CONSENT OF LENDERS. The Parent shall have obtained the
written consent of Xxxxx Fargo Credit, Inc., Xxxxx Fargo Energy Capital, Inc.,
and Xxxxx Fargo Bank Texas, National Association to this Agreement and the
transaction effected herein.
ARTICLE V
TERMINATION
Section 5.1 TERMINATION. This Agreement may be terminated at any time
prior to the Effective Time only by mutual written consent duly authorized by
the Boards of Directors of Parent and the Company.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1 EFFECTIVENESS OF REPRESENTATIONS, WARRANTIES AND
AGREEMENTS. Except as otherwise provided in this Section 6.1, the
representations, warranties, covenants and agreements of each party hereto shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of any other party hereto, any Person controlling any such
party or any of their officers, directors or representatives, whether prior to
or after the execution of this Agreement. The representations, warranties and
agreements in this Agreement shall terminate at the Effective Time or upon the
termination of this Agreement pursuant to Section 5.1, as the case may be.
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Section 6.2 NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when delivered personally or by overnight courier to the parties
at the following addresses or sent by electronic transmission, with confirmation
received, to the telecopy numbers specified below (or at such other address or
telecopy number for a party as shall be specified by like notice):
(a) If to Parent or Merger Sub:
Xxxxx-Xxxxxxxx Corporation
0000 Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxxx
With a copy to:
Xxxxxx, Xxxxxx & Xxxxx, P.C.
0000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Pound III
(b) If to the Company:
Jens' Oil Field Services, Inc.
P. O. Xxx 0000
Xxxxxxxx, Xxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxx, Xx.
With a copy to:
Xxxx X. Xxxxxxxxx, Xx.
P. O. Xxx 0000
Xxxxxxxx, Xxxxx 00000-0000
Section 6.3 CERTAIN DEFINITIONS. For purposes of this Agreement, the
term:
"Affiliates" means a Person that directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common
control with, the first mentioned Person;
"Business Day" means any day other than a day on which banks in Texas
are required or authorized to be closed;
"control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly or as
trustee or executor, of the power to direct or cause the direction of
the management or policies of a Person, whether through the ownership
of stock, as trustee or executor, by contract or credit arrangement or
otherwise;
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"Person" means an individual, corporation, partnership, limited
liability company, association, trust, unincorporated organization
other entity or group (as defined in Section 13(d)(3) of the Exchange
Act); and
"Subsidiary" or "Subsidiaries" of the Company, the Surviving
Corporation, Parent or any other Person means any corporation,
partnership, limited liability company, or other legal entity of which
the Company, the Surviving Corporation, Parent or such other Person, as
the case may be (either alone or through or together with any other
subsidiary), owns, directly or indirectly, more than 50% of the stock
or other equity interests the holders of which are generally entitled
to vote for the election of the board of directors or other governing
body of such corporation or other legal entity.
Section 6.4 AMENDMENT. This Agreement may be amended by the parties
hereto by action taken by or on behalf of their respective Boards of Directors
at any time prior to the Effective Time; PROVIDED, HOWEVER, that, after approval
of the Merger and this Agreement by the stockholders of the Company, no
amendment may be made which by law requires further approval by such
stockholders without such further approval. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
Section 6.5 WAIVER. At any time prior to the Effective Time, any party
hereto may with respect to any other party hereto (a) extend the time for the
performance of any of the obligations or other acts, (b) waive any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto, or (c) waive compliance with any of the agreements or
conditions contained herein. Any such extension or waiver shall be valid if set
forth in an instrument in writing signed by the party or parties to be bound
thereby.
Section 6.6 HEADINGS; CONSTRUCTION. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. In this Agreement (a) words
denoting the singular include the plural and vice versa, (b) "it" or "its" or
words denoting any gender include all genders, (c) the word "including" shall
mean "including without limitation," whether or not expressed, (d) any reference
to a statute shall mean the statute and any regulations thereunder in force as
of the date of this Agreement or the Effective Time, as applicable, unless
otherwise expressly provided, (e) any reference herein to a Section, Article or
Schedule refers to a Section or Article of or a Schedule to this Agreement,
unless otherwise stated, (f) when calculating the period of time within or
following which any act is to be done or steps taken, the date which is the
reference day in calculating such period shall be excluded and if the last day
of such period is not a Business Day, then the period shall end on the next day
which is a Business Day, and (g) any reference to a party's "best efforts" or
"reasonable efforts" shall not include any obligation of such party to pay, or
guarantee the payment of, money or other consideration to any third party or to
agree to the imposition on such party or its Affiliates of any condition
reasonably considered by such party to be materially burdensome to such party or
its Affiliates.
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Section 6.7 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent reasonably
possible.
Section 6.8 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and supersedes all prior agreements and undertakings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof, except as otherwise expressly provided herein.
Section 6.9 ASSIGNMENT; MERGER SUB. This Agreement shall not be
assigned by operation of law or otherwise, except that all or any of the rights
of Merger Sub hereunder may be assigned to any direct, wholly-owned Subsidiary
of Parent provided that no such assignment shall relieve the assigning party of
its obligations hereunder. Parent guarantees the full and punctual performance
by Merger Sub of all the obligations hereunder of Merger Sub or any such
assignees.
Section 6.10 PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
Person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement, including, without limitation, by way of subrogation.
Section 6.11 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty, covenant or
agreement herein, nor shall any single or partial exercise of any such right
preclude other or further exercise thereof or of any other right. All rights and
remedies existing under this Agreement are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
Section 6.12 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Texas applicable
to contracts executed and fully performed within the State of Texas.
Section 6.13 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
PARENT:
XXXXX-XXXXXXXX CORPORATION
By: /S/ Xxxxxxx X. Xxxxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Chairman, President and Chief Executive
Officer
MERGER SUB:
JENS' ACQUISITION CORP.
By: /S/ Xxxxxxx X. Xxxxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Chairman, President and Chief Executive
Officer
COMPANY:
JENS' OIL FIELD SERVICES, INC.
By: /S/ Jens. X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx, Xx.
Title: President
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