EXHIBIT 2.1
Stock Purchase Agreement, dated September 10, 1996
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is entered into this 10th
day of September, 1996, by and among XXXXX XXXXXXXXX ("Seller"), XXXXX OIL
COMPANY, INC., a Utah corporation ("Xxxxx Oil"), XXXX X. XXXXXX ("Xxxxxx"),
and XXXX X. XXXXXX, by and through his attorney-in-fact, Xxxx X. Xxxxxx
("Xxxxxx"). Xxxxxx and Xxxxxx are collectively referred to herein as "Buyer."
R E C I T A L S:
A. Seller owns 1,956,300 shares of the common stock of Xxxxx Oil,
which shares constitute approximately sixty and seven-tenths percent (60.7%)
of the issued and outstanding stock of Xxxxx Oil.
B. Seller desires to sell 1,400,000 of such shares ("Shares") to
Buyer and to retain ownership of 556,300 shares.
C. Buyer desires to purchase 1,300,000 of such Shares ("Block I
Shares") from Seller and to acquire an option to purchase an additional
100,000 of such Shares ("Block II Shares") from Seller, all on the terms and
conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing and the premises and
the mutual promises and covenants herein set forth, the parties agree as
follows:
1. Recitals. The foregoing recitals are true and correct.
2. Purchase and Sale; Closings.
2.1 Purchase and Sale. Subject to the terms and conditions
hereof, Seller agrees to sell, convey, transfer and assign to Buyer, and Buyer
agrees to purchase, accept and acquire from Seller, all of the Block I Shares.
After all of the conditions precedent to Closing set forth in Section 8 below
have been satisfied, Seller shall sell the Block I Shares to Buyer. Such
purchase shall occur at the First Closing (as defined below). The purchase
price for the purchase of the Block I Shares shall be Thirty-Five Thousand
Dollars ($35,000), which sum shall be payable by certified check at the First
Closing.
At the First Closing, Seller shall grant to Buyer an
irrevocable option ("Option") to purchase the Block II Shares for the sum of
Twenty-Five Thousand Dollars ($25,000). Such Option shall continue for twelve
(12) months ("Option Period") and shall be exercisable by Buyer giving written
notice during the Option Period in the form and manner prescribed under
Section 13.2 below to Seller that Buyer intends to purchase the Block II
Shares. The Closing on such Block II Shares ("Second Closing") shall occur on
the later of the date that is thirty (30) days after such notice is given or
the last day of such Option Period. During such Option Period, Seller
irrevocably grants Seller's proxy to Buyer for Buyer to vote the Block II
Shares in any manner Buyer deems appropriate. The certificate representing
the Block II Shares shall be held in escrow by Xxx Xxxxxxxxxx, as Escrow
Agent, pursuant to the Escrow Agreement attached hereto as Schedule 2.1, until
the conclusion of the Option Period (if no notice is given by Buyer to Seller)
or the purchase of the Block II Shares by the Buyer. In the event Buyer fails
to exercise its Option and purchase the Block II Shares, the Option shall
terminate at the end of the Option Period (or sooner if Buyer renounces the
Option in writing prior thereto), and the certificates representing the
Block II Shares shall be returned to Seller and Seller shall regain all voting
rights connected therewith. The purchase price for the Block II Shares shall
be payable by certified check at the Second Closing.
Seller shall retain ownership of 556,300 shares.
2.2 Closings.
2.2.1 The First Closing shall occur on or before September
12, 1996, at the offices of Holme Xxxxxxx & Xxxx LLC, 000 Xxxx Xxxxxxxx, Xxxxx
0000, Xxxx Xxxx Xxxx, Xxxx, or at such other time, date and location as the
parties agree. At Buyer's option, the First Closing may occur prior to such
scheduled date if Buyer first gives notice as provided in Section 13.2 below
that Buyer wishes to close the purchase of the Block I Shares fifteen (15)
days after the date of such notice.
2.2.2 The Second Closing shall be the closing on the
purchase of the Block II Shares and shall occur, as provided in Section 2.1
above, on the date that is thirty (30) days after the notice provided therein
is given (but not later than the last day of the Option Period), or on such
other date as the parties may agree. The Second Closing shall occur at the
offices of Holme Xxxxxxx & Xxxx LLC, 000 Xxxx Xxxxxxxx, Xxxxx 0000, Xxxx Xxxx
Xxxx, Xxxx, or at such other location as the parties agree.
The First Closing and the Second Closing are sometimes
collectively referred to herein as the "Closings," and individually as a
"Closing."
3. Representations and Warranties of Xxxxx Oil and Seller. As an
inducement to Buyer to enter into this Agreement and to consummate the
transactions contemplated herein, Seller and Xxxxx Oil, jointly and severally,
represent and warrant to and covenant with Buyer that the following are true
and correct and will be true and correct at the First Closing:
3.1 Corporate Existence of Xxxxx Oil, Absence of Subsidiaries.
Xxxxx Oil is duly organized, validly existing and in good standing under the
laws of the State of Utah. It has full power and authority to enter into this
Agreement. Xxxxx Oil has the corporate power and authority to own and use its
properties and to transact the business in which it is engaged, holds all
franchises, licenses and permits necessary therefor and is duly licensed or
qualified to do business in every state and legal jurisdiction in which such
licenses or qualifications are required, and carries on its business in all
respects in accordance with the laws applicable in each such state or
jurisdiction. Xxxxx Oil has no subsidiaries and no investments in any other
firm or person. A true and correct copy of Xxxxx Oil's Articles of
Incorporation and Bylaws are attached hereto as Schedule 3.1.
3.2 Stock. The authorized capital stock of Xxxxx Oil consists
of 50,000,000 shares of common stock, $0.001 par value per share. The total
number of shares of authorized capital stock of Xxxxx Oil issued and
outstanding is 3,225,454, all of which, at the First Closing, will be duly
authorized, validly issued, fully paid and non-assessable. Of such issued and
outstanding shares of capital stock, 1,956,300 are owned by Seller. The
Block I Shares and the Block II Shares, which are the subject matter of
Buyer's purchase hereunder, will bear the standard investment legend and will
be owned and held by Seller free and clear of all security interests, liens,
encumbrances, claims and charges. There are no outstanding warrants, options,
contracts, calls or other rights of any kind with regard to any authorized or
issued but not outstanding shares of common stock in Xxxxx Oil. The business
of Xxxxx Oil is conducted entirely in Xxxxx Oil and no other entity or
affiliate of Xxxxx Oil owns any assets used in the business or conducts any
part of the business of Xxxxx Oil. Of the issued and outstanding shares of
capital stock of Xxxxx Oil, 1,269,154 shares are publicly traded shares, duly
registered with the Securities and Exchange Commission ("SEC") and listed on
the Bulletin Board for NASDAQ sales of stock. All shares of Xxxxx Oil common
stock which are publicly traded were sold to bona-fide members of the
investing public. Neither Xxxxx Oil, the Seller, nor any other officers,
directors or principal shareholders of Xxxxx Oil have the power to direct the
voting or investment decisions of any other shareholders of Xxxxx Oil; no
officer, director, principal shareholder or other affiliate of Xxxxx Oil has
any option, agreement or arrangement to reacquire any of the publicly traded
shares of common stock; such officers, directors, principal shareholders, or
other affiliates did not provide, directly or indirectly, any of the funds
utilized by shareholders of record to purchase shares sold to the public; and,
to the best knowledge of Xxxxx Oil and Seller, all of the persons named on
Xxxxx Oil's shareholder lists as holding shares of Xxxxx Oil capital stock are
the sole beneficial owners thereof, and unless otherwise indicated on such
lists, a copy of which have been provided to Buyer. The issued and
outstanding shares of Xxxxx Oil common stock that do not currently bear a
restrictive legend are tradeable in the public market. The common shares of
Xxxxx Oil are currently qualified to trade in the states set forth in
Schedule 3.2 attached hereto.
3.3 Public Filings. Xxxxx Oil has heretofore delivered to Buyer
its Form 10-SB statement as filed by Xxxxx Oil with the SEC on May 31, 1996,
the SEC'S comment letter, and the response of attorney Xxxxxxx X. Xxxxxxxxxx
to such comment letter, and has delivered to Buyer its Form 10-QSB Statement
as filed by Xxxxx Oil with the SEC on July 22, 1996 (collectively, the "Xxxxx
Oil Public Filings"). The Xxxxx Oil Public Filing is attached hereto as
Schedule 3.3 and made a part hereof. Xxxxx Oil has made all required filings
in a timely manner. As of their respective dates, such reports and statements
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The audited financial statements of Xxxxx Oil included in
such reports have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto), and fairly present
the financial position of Xxxxx Oil as of the dates thereof and the results of
operations and changes in financial positions for the periods then ended. The
unaudited interim financial statements of Xxxxx Oil included in such reports
have been prepared on a basis consistent with such audited, consolidated
financial statements, subject to normal year-end adjustments, and in
accordance with the requirements of Form 10-SB and Form 10-QSB. Since the
date of such financial statements, there have been no material adverse changes
in the assets, liabilities or financial position of Xxxxx Oil.
Except as disclosed on Schedule 3.3, the SEC has not issued
any order preventing or suspending the transfer of securities of Xxxxx Oil,
and no proceedings for that purpose have been instituted or are pending or, to
the knowledge of Xxxxx Oil or Seller, are contemplated by the SEC.
3.4 No Violations of Law. Xxxxx Oil is not in default under or
in violation of, any applicable federal, state or local laws, including those
relating to the employment of labor, and there are no controversies pending or
threatened between Xxxxx Oil and its employees.
3.5 Taxes. Xxxxx Oil has duly filed all federal, state and
local income taxes and other returns and reports required to have been filed
up to the date hereof, and has paid all taxes, penalties and interest required
to have been paid with respect thereto. Xxxxx Oil has either paid or made
adequate disclosure in the aforementioned financial statements for the payment
of all taxes with respect to the conduct of its businesses up to and through
the date of its said financial statements. No disputes or proceedings are
pending with respect to any material amount of taxes, penalties or interest
due or alleged to be due from Xxxxx Oil. Xxxxx Oil is not currently the
subject of any audit for any federal, state or local income taxes, nor has
Xxxxx Oil received any notice that any such audit is pending or threatened.
Xxxxx Oil has not consented to the extension of any period for any such audit.
3.6 Agreements. Except for agreements described in Schedule 3.6
attached hereto or otherwise disclosed in this Agreement, Xxxxx Oil is not a
party to or bound by any agreement, contract or commitment, including but not
limited to any agreement involving sales representation or distribution,
employment or consulting, noncompetition or the limiting of the ability of
Xxxxx Oil to market its services, license agreements to or for Xxxxx Oil,
labor agreements, leases for personal or real property, discount or allowance
agreements, guaranties or indemnities, loan agreements and security
agreements. To the best of Seller's and Xxxxx Oil's knowledge, there are no
defaults by other parties thereto. All such agreements were entered into in
the ordinary course of business and none of such agreements are materially
disadvantageous to Xxxxx Oil. Each of the contracts and agreements to which
Xxxxx Oil is a party is a valid and binding obligation of the parties thereto
in accordance with its terms and conditions. No party to such contract or
agreement is in default with respect to any term or condition thereof nor has
any event occurred which, through the passage of time or the giving of notice,
or both, would constitute a default thereunder or would cause the acceleration
of any obligations, term or condition thereof, constitute a default
thereunder, or cause the creation of a lien or encumbrance upon any asset of
Xxxxx Oil. To the extent any such agreement exists, and except as set forth
in Schedule 3.6, neither Seller nor Xxxxx Oil is in breach thereof and neither
Seller nor Xxxxx Oil has received any notice of any threatened or pending
termination thereof.
3.7 Insurance. Schedule 3.7 attached hereto contains a true and
complete list of all policies of fire, life, liability, worker's compensation
and other forms of insurance maintained by Xxxxx Oil. All such policies are
valid and in full force and effect as of the date hereof, and all premiums
payable on such policies are current as to payment and will be current as of
the close of business on the date of the First Closing. To the best of
knowledge of Seller and Xxxxx Oil, no such policy has been terminated since
June 30, 1996, and there exists no threatened attempt to terminate any such
policy.
3.8 Litigation. There are no actions, claims, suits or
proceedings pending or threatened against or affecting Xxxxx Oil or its assets
or business, or Seller. Neither Xxxxx Oil nor Seller is in violation of any
rule, regulation, order, writ, injunction or decree of any court, and Xxxxx
Oil has not received any notice from any insurer or any board of fire
underwriters having jurisdiction of any work required to be performed at its
premises.
3.9 Title to Assets. Schedule 3.9 attached hereto lists all of
Xxxxx Oil's assets, including all patents, applications for patents, trademark
registrations, applications for trademark registrations, trade names and
copyrights, mineral and drilling rights, and licenses under any of the
foregoing, used, owned or granted by or to Xxxxx Oil, which list comprises all
of such material items required for the operation of the businesses of Xxxxx
Oil presently conducted or planned. Except as set forth on Schedule 3.9,
Xxxxx Oil has the exclusive rights to each such item; all such items are valid
and subsisting; good and marketable title to all such items (together with all
common law rights to the subject matter thereof) is owned by Xxxxx Oil free
and clear of all options, adverse claims, defenses, liens, charges, security
interests, covenants, conditions, agreements, restrictions and other
encumbrances; and there exists no restriction on the use or transfer of any
such item. There are no interferences, challenges, proceedings or
infringement suits pending or threatened with respect to any such item. Xxxxx
Oil has not granted any license to any other party with respect to any such
item. Xxxxx Oil is not infringing upon the right of any other person under
any patent, trademark, copyright or similar right in the conduct of their
respective businesses. All property owned and/or leased by Xxxxx Oil which is
currently used in its business is in good operating condition and no repair is
required for its use in Xxxxx Oil's business as presently conducted (ordinary
wear and tear excepted), and conforms in all material respects to all
applicable laws.
3.10 No Violations. The execution of this Agreement and
consummation of the transactions contemplated hereby will not result in or
constitute any of the following:
3.10.1 A default, breach or violation of the Articles
of Incorporation or Bylaws of Xxxxx Oil, or of any lease, license, promissory
note, conditional sales contract, commitment, indenture, mortgage, deed of
trust or other agreement, instrument or arrangement to which Seller or Xxxxx
Oil are parties or by which any of them or the property of any of them is
bound;
3.10.2 An event that would permit any party to
terminate any agreement or to accelerate the maturity of any indebtedness or
other obligation of Xxxxx Oil; or
3.10.3 The creation or imposition of any lien, charge
or encumbrance on any of the properties of Xxxxx Oil.
3.11 Bank Accounts; Safe Deposit Boxes. Schedule 3.11 is a list
of all bank accounts maintained by Xxxxx Oil, together with the names of
authorized signatories on each such account, and the location of all safe
deposit boxes maintained by Xxxxx Oil, together with the names of the persons
authorized to have access thereto.
3.12 Licenses. Schedule 3.12 attached hereto is a true and
correct list of all licenses held by Xxxxx Oil, each of which is presently in
full force and effect and has never been revoked.
3.13 Disclosures. No representation contained herein or in any
lease, certificate, instrument, document or other writing furnished pursuant
to the provisions hereof or in connection with the transactions contemplated
herein contains any untrue statement of material fact or omits to state a
material fact necessary to make the statements therein not misleading.
3.14 Labor Agreements, Employee Benefit Plan and Employee
Agreements. Xxxxx Oil is not a party to any of the following types of
agreements, whether written or unwritten:
3.14.1 Any qualified or nonqualified profit sharing
deferred compensation, bonus, stock option stock purchase, retainer,
consulting, health, welfare or incentive plan or agreement (whether any are
legally binding or not).
3.14.2 Any qualified or nonqualified employee pension
plan or agreement.
3.14.3 Any plan or policy providing for employee
benefits, including but not limited to, vacation, disability, sick leave,
medical, hospitalization, life insurance and other insurance plans and related
benefits.
3.14.4 Any employment agreement.
3.15 Terminated Plans. There are no retirement plans which Xxxxx
Oil has terminated or taken action to terminate. Xxxxx Oil has no liability
to any person or entity, including without limitation the PBGC, any other
governmental agency or any participant in or beneficiary of any retirement
plan, and Xxxxx Oil is not liable for any excise, income or other tax or
penalty as a result of such termination.
3.16 Books and Records. The books of account, minute books and
other corporate records of Xxxxx Oil properly and fairly reflect all material
transactions considered by its board of directors to date, the stock record
books are complete, all such books are complete, and all such books and
records have been maintained in accordance with good business practices. At
the First Closing, Seller shall deliver to Buyer all files, minute books,
books of account, financial and personnel records, and all other documents and
records (collectively "Records") of Xxxxx Oil. Upon reasonable advance notice
to Xxxxx Oil, Seller shall have the right to inspect, review and copy the
Records.
3.17 Accounts Receivable. Schedule 3.17 sets forth all aged
accounts receivable of Xxxxx Oil at the execution hereof. Subject to
reasonable and customary reserves for bad debts, the accounts receivable
currently owned and held by Xxxxx Oil, and all accounts receivable
subsequently accruing through the First Closing will be (except those which
have been collected since the date of this Agreement) valid, genuine and
subsisting, subject to no defenses, set-offs or counterclaims and current and
reasonably believed to be collectible within ninety (90) days following the
First Closing.
3.18 Financial Information; Absence of Certain Changes. Seller
and Xxxxx Oil have provided to Buyer copies of Xxxxx Oil's unaudited financial
statements for the period ended June 30, 1996. The financial information set
forth therein is complete and accurate and has been prepared in accordance
with generally accepted accounting principles, consistently applied. Since
June 30, 1996, and except as otherwise set forth herein, Xxxxx Oil has not:
3.18.1 Issued, sold or delivered or agreed to issue,
sell or deliver any additional shares of capital stock or any options,
warrants or rights to acquire any such capital stock, or securities
convertible into or exchangeable for such capital stock.
3.18.2 Incurred any obligation or liability, whether
absolute, accrued, contingent or otherwise, other than in the ordinary course
of business.
3.18.3 Mortgaged, pledged or subjected to any lien,
lease, security interest or other charge or encumbrance any asset or property,
whether tangible or intangible except in the ordinary course of business.
3.18.4 Acquired or disposed of any asset or property,
or entered into any agreement or other arrangement for any such acquisition or
disposition, except in the ordinary course of business.
3.18.5 Declared, made, paid or set apart any sum for
any dividend or other distribution to shareholders or purchased or redeemed
any shares of capital stock or any option, warrant or right to purchase any
capital stock, or reclassified such capital stock.
3.18.6 Increased by more than three percent (3%) in
aggregate the wages, salaries, rate of compensation, pension or other benefits
payable to all employees or granted any excessive severance or compensation,
pension or other benefits payable to all employees or granted any excessive
severance or termination pay.
3.18.7 Entered into any employment agreement with any
officer or salaried employee which is not terminable by Xxxxx Oil without
cause and without penalty upon notice of thirty (30) days or less.
3.18.8 Forgiven or canceled any debt or claim, or
waived any right of material value.
3.18.9 Entered into any transaction other than in the
ordinary course of business.
3.18.10 Sold, assigned, transferred or granted any right or
license under any trademark, trade name, patent or copyright.
3.18.11 Suffered any adverse change in its business,
condition, sales, income, assets or liabilities, other than changes in the
ordinary course of business which have not been, either in any case or in the
aggregate, materially adverse.
3.18.12 Suffered any damage, destruction or loss of
property (whether or not covered by insurance) materially adversely affecting,
either in any case or in the aggregate, its business, prospects, condition,
properties or assets.
3.18.13 Changed the method of maintaining its books and
records.
3.18.14 Failed to timely file all filings with each
federal, state and local securities regulation agency.
3.19 Brokers. No broker or finder, or other party or agent
performing similar functions, has been retained by Xxxxx Oil or Seller, or is
entitled to be paid based upon any agreements, arrangements or understandings
made by Xxxxx Oil or Seller in connection with the transactions contemplated
by this Agreement, and no brokerage fee or other commission has been agreed to
be paid by Xxxxx Oil or Seller on account of the transactions contemplated
hereby.
3.20 Price Stabilization and Manipulation. Neither Xxxxx Oil nor
Seller has taken within the past year, or shall take prior to the consummation
of the First Closing, directly or indirectly, any action designed to, or that
might in the future reasonably be expected to, cause or result in
stabilization or manipulation of the price of any security of Xxxxx Oil.
4. Representations and Warranties of Buyer. As an inducement to
Seller to enter into this Agreement and to consummate the transactions
contemplated herein, each of Xxxxxx and Xxxxxx hereby represents and warrants
to Seller, as to himself, that the following are true and correct and will be
true and correct at the First Closing.
4.1 Legal Capacity. Such Buyer has the legal capacity and
ability to enter into and perform his obligations arising under this Agreement
and to purchase Shares from Seller as provided for herein. Such Buyer is not
subject to any order, judgment or decree issued by any court or state or
federal administrative agency in which fraud or deceit was found, or which
prohibits, denies or revokes the use of any exemption regarding the
registration of securities, or which restrains or enjoins such Buyer from
engaging in or continuing any conduct or practice in connection with the
registration, purchase or sale of securities. Such Buyer has not been
convicted of any felony or misdemeanor in connection with the offer, purchase
or sale of any security.
4.2 Intent to Transfer Rights to Xxxxx Oil. Buyer is acquiring
the Shares in anticipation of utilizing Xxxxx Oil as a vehicle in connection
with the exploitation of certain petroleum exploration opportunities in
Australia. Xxxxxx and Xxxxxx, directly or through affiliated entities, are
the owners of all outstanding shares of Xxxxxx Exploration Pty. Ltd.
("Xxxxxx"), an Australian corporation, which is the beneficiary of certain
petroleum exploration licenses, regarding rights to certain petroleum
exploration activities in Australia, identified as Petroleum Energy Licenses
Nos. 61 and 63 (the "Energy Licenses"). It is the current intention of Buyer
to cause Xxxxxx to engage in one or more transactions (the "Transactions")
that would result in Xxxxx Oil acquiring, directly or indirectly, not less
than 80% of the net royalty interests arising from the Energy Licenses.
Promptly after the First Closing, Buyer will use reasonable best efforts to
implement the Transactions.
5. Conduct of Business Prior to the First Closing. Following the
execution of this Agreement and prior to the First Closing, Seller shall cause
Xxxxx Oil to conduct operations under the direction of its officers and
directors according to its ordinary course of business. Seller shall permit
Buyer and its legal counsel, accountants and other representatives to have
full access during normal business hours to all properties, books, accounts,
records, contracts and documents of and relating to Xxxxx Oil, subject to
prior arrangement by Seller as to time and place to minimize any negative
impact such actions may have on the employees of Xxxxx Oil.
Following the execution of this Agreement and prior to the First
Closing, without the prior agreement of Buyer, Xxxxx Oil shall not:
5.1 Incur any indebtedness of any amount.
5.2 Acquire or agree to acquire any asset or dispose of or
agree to dispose of any asset.
5.3 Merge or consolidate with, or agree to merge or consolidate
with, any business or any business organization.
5.4 Merge or consolidate with, or agree to merge or consolidate
with, any business or any business organization.
5.5 Increase the compensation of any of its employees,
officers, directors or agents nor commit to any employment agreement not
cancelable at will, nor to any collective bargaining agreement.
5.6 Enter into any employee welfare, pension or other benefit
plan, including, as an example and without limitation, any bonus, medical,
hospitalization or life insurance plan.
5.7 Fail to use its best efforts to cause Xxxxx Oil to carry on
its business activities diligently in substantially the manner as previously
carried out, including continuation of insurance coverages and maintenance of
relationships with employees, customers and suppliers.
5.8 Change any accounting policies or practices.
5.9 Declare or pay any dividend on, or make any distribution
with respect to, the capital stock of Xxxxx Oil.
5.10 Purchase or redeem any capital stock of Xxxxx Oil, or enter
any agreement to sell shares, grant options and warrants.
5.11 Amend its certificate or articles of incorporation or
bylaws.
5.12 Enter into any contract, agreement, commitment or
arrangement other than in the ordinary course of business.
5.13 Fail to pay any and all taxes when same shall become due.
5.14 Fail to comply with any applicable law.
5.15 Fail to maintain its properties in good working condition,
ordinary wear and tear excepted.
5.16 Issue or sell, or enter into any contract, agreement,
commitment or arrangement to issue or sell, any shares of the capital stock of
Xxxxx Oil, or issue or grant any stock appreciation rights, or any option,
warrant, conversion or other right to purchase or acquire any such shares or
any securities convertible into or exchangeable for such shares.
5.17 Effect any stock split, stock dividend, stock combination,
reorganization, recapitalization or reclassification affecting any of its
authorized or issued and outstanding securities.
5.18 Fail to timely file all filings with each federal, state
and local securities regulation agency.
6. Confidentiality.
6.1 Seller's Confidential Information. In connection with this
transaction, Buyer has requested and may request from Xxxxx Oil and Seller
certain documents and other pertinent material including, without limitation,
certain customer lists, market information, financial data, computer software
and hardware information and other trade secrets, and other information
relating to Xxxxx Oil and/or Seller, which Xxxxx Oil and Seller consider to be
confidential (collectively, "Seller's Confidential Information"). All of
Seller's Confidential Information shall at all times prior to the First
Closing be the property of Xxxxx Oil and/or Seller, as the case may be. Buyer
shall obtain no rights in any of Seller's Confidential Information, unless and
until the transactions contemplated by this Agreement are consummated;
provided, however, that all such Seller's Confidential Information that is
personal as to Seller and should not be considered information of Xxxxx Oil
shall at all times be and remain the property of Seller, even after First
Closing. Buyer and Xxxxx Oil agree as follows:
6.1.1 Except as may be required by applicable laws or
as Seller or Xxxxx Oil, as the case may be, may from time to time consent to
in writing, Buyer shall not, at any time, disclose Seller's Confidential
Information, or any part thereof, to any person, firm, corporation,
association, or other entity for any reason or purpose whatsoever.
6.1.2 Except as otherwise required herein, at such
other time or times as Seller or Xxxxx Oil, as the case may be, may request,
Buyer shall immediately return to Seller or Xxxxx Oil, as the case may be, all
of Seller's Confidential Information and shall not retain any copies thereof
and shall continue to refrain from any use whatsoever of Seller's Confidential
Information.
6.1.3 In the event Buyer takes any action or fails to
take any action in contravention of this Section 6.1, Buyer shall indemnify
and hold harmless Seller and/or Xxxxx Oil from any damage or claim that may
arise as a result of such action or inaction. In addition, Seller and/or
Xxxxx Oil shall be entitled to collect from Buyer all costs incurred in
obtaining such indemnification, including all attorney and court costs. Buyer
shall take any and all legal actions necessary to minimize any damages
resulting from such disclosure, to retrieve such disclosed Seller's
Confidential Information, and to return same to Seller upon Seller's
direction.
6.2 Buyer's Confidential Information. In connection with this
transaction, Seller has requested and may request from Buyer certain documents
and other information relating to Buyer which Buyer considers to be
confidential (collectively, "Buyer's Confidential Information"). All of
Buyer's Confidential Information shall at all times be the property of Buyer.
Seller and Xxxxx Oil shall obtain no rights in any of Buyer's Confidential
Information, except as otherwise required to enforce the terms hereof. Seller
agrees as follows:
6.2.1 Except as may be required by applicable laws or as
Buyer may from time to time consent to in writing, Seller shall not, at any
time, disclose Buyer's Confidential Information, or any part thereof, to any
person, firm, corporation, association, or other entity for any reason or
purpose whatsoever.
6.2.2 Except as otherwise required herein, at such other
time or times as Buyer may request, Seller shall immediately return to Buyer
all of Buyer's Confidential Information and shall not retain any copies
thereof and shall continue to refrain from any use whatsoever of Buyer's
Confidential Information.
6.2.3 In the event Seller takes any action or fails to
take any action in contravention of this Section 6.2, Seller shall indemnify
and hold harmless Buyer from any damage or claim that may arise as a result of
such action or inaction. In addition, Buyer shall be entitled to collect from
Seller all costs incurred in obtaining such indemnification, including all
attorneys' fees and court costs. Seller shall take any and all legal actions
necessary to minimize any damages resulting from such disclosure, to retrieve
such disclosed Buyer's Confidential Information, and to return same to Buyer
upon Buyer's direction.
7. Indemnification.
7.1 Indemnification by Seller. Seller agrees to indemnify,
defend and hold harmless Buyer from and against, and to reimburse Buyer with
respect to, any and all demands, claims, actions or causes of action,
assessments, cost, expense (including reasonable attorneys' fees and court
costs), damage, liability, loss or deficiency incurred by Buyer, as finally
determined by any court proceeding or an arbitrator, by reason of or arising
out of or in connection with any:
7.1.1 Breach of any covenant, representation or warranty
of Seller contained herein or any certificate delivered to Buyer pursuant to
this Agreement. All statements of fact contained in any written attachment
(including financial statements), deed, certificate, Schedule or other
document delivered to Buyer by Seller pursuant to this Agreement shall be
deemed representations and warranties of Seller pursuant to this Agreement.
7.1.2 Failure of Seller to perform or observe any term,
provision, covenant, agreement or condition contained herein.
7.1.3 Any income tax liability (including penalties and
interest) that may be assessed against Xxxxx Oil, any other transferee, or
Buyer with respect to the operations of Xxxxx Oil for all periods ending on or
prior to the First Closing.
7.1.4 Any and all awards and/or judgments to which Buyer
or Xxxxx Oil (after the First Closing) may become subject under the Securities
Act of 1933, as amended ("1933 Act"), the Securities Exchange Act of 1934, as
amended ("1934 Act"), or any other federal or state statute, at common law or
otherwise, insofar as said liabilities, claims and lawsuits (including awards
and/or judgments) arise out of or are in connection with any of Xxxxx Oil's
public filings made prior to the First Closing or a breach of this Agreement,
other than any liability that arises out of an untrue statement or omission
made in reliance on information provided by Buyer.
All covenants, agreements, representations and warranties
made by Seller pursuant to this Agreement or in connection with Buyer's
purchase of the Shares shall survive the First and Second Closings and remain
effective regardless of any investigations at any time made by or on behalf of
Buyer or of any information Buyer may have in respect thereof.
7.2 Cooperation; Control of Litigation. If, after First
Closing, Buyer or Xxxxx Oil becomes involved in any litigation or written
threats thereof or claim or demand of any kind (hereinafter called
"litigation") in which an adverse result or claim or demand of any kind would
or may constitute a breach of any representation or warranty of the Seller
(the "indemnifying party") contained in this Agreement or any certificate
delivered pursuant to this Agreement, such party will give prompt written
notice to the indemnifying party of the pendency of any such litigation and
the following provisions shall be applicable:
7.2.1 The indemnifying party shall have the right to
participate in and, with the consent of the other party, which consent shall
not be unreasonably withheld, to control the contest, defense and/or
settlement of such litigation at the indemnifying party's own cost and
expense, including the cost and expense of attorneys' fees in connection with
such cost, defense and/or settlement, and in such case the other party will
assist the indemnifying party to such extent as is reasonable in such contest,
defense and/or settlement of such litigation. If Seller shall be the party
controlling such litigation, Buyer shall make available to Seller, his
attorneys and accountants, at reasonable times, all books and records of Xxxxx
Oil relating to such suit, claim or proceeding.
7.2.2 In the event that the indemnifying party does not
assume control of the contest and defense of the litigation, then the other
party may use, but shall not be obligated to use, its best efforts to contest,
defend and/or settle such litigation at the indemnifying party's cost and
expense and in such case the indemnifying party will assist the other party to
such extent as is reasonable in the contest and defense of and/or the
reasonable settlement of such litigation.
7.2.3 The party in control of the litigation shall
inform the other party of the progress of the litigation at such times and in
such a manner as is reasonable in the circumstances.
7.3 Determination of Loss. In determining the amount of any
loss, damage, liability, cost or expense for purposes of indemnification there
shall first be taken into account and deducted from the claim the amount of
any insurance proceeds which the indemnified party or parties shall have
received as to the date that payment of the indemnification is made.
Upon the payment in full of any indemnification hereunder,
which shall be made within thirty (30) days after written demand therefor
shall be made, the indemnifying party or parties shall be subrogated to and/or
shall be deemed to receive an assignment of, any and all rights of the
indemnified party or parties with respect to the subject matter which gave
rise to the indemnification payment unless such subrogation and/or assignment
would be inequitable to the indemnified party or parties, subject to any and
all subrogation clauses which may be required by the insurer of the
indemnified party pursuant to any and all applicable insurance policies.
7.4 Reductions of Loss Amount. By way of limiting the
application of this indemnity, in determining the amount of any such losses,
damages, liabilities, costs and expenses ultimately determined to have been
incurred, there shall also be taken into account any offsetting tax benefit
which the party to be indemnified may reasonably be expected to receive as a
result of the portion of such losses, damages, liabilities, costs and
expenses, and any benefits arising from the conduct of the business in normal
course, arising out of such damages.
7.5 Set-Off. If any amount shall be due and payable by
Seller pursuant to this indemnification, Buyer shall have the right to set-off
such liability against any and all amounts due Seller hereunder.
7.6 Time Limits. All liabilities pursuant to this Section 7
shall cease absolutely after the expiration of four (4) years from the First
Closing, except insofar as specific particulars of any claim or alleged claim
arising in respect of such failure or alleged failure have been pleaded in any
litigation with respect to third parties or arbitration with respect to the
parties brought prior to the expiration of the said four (4) year period, and
except to the extent any set-off is to be made against an amount to be paid
thereafter.
7.7 Indemnification by Buyer. Each Buyer agrees to
indemnify, defend and hold harmless Seller from and against, and to reimburse
Seller with respect to, any and all demands, claims, actions or causes of
action, assessments, costs, expense (including reasonable attorneys' fees and
court costs), damage, liability, loss or deficiency incurred by Seller, as
finally determined by any court proceeding or an arbitrator, by reason of or
arising out of or in connection with any breach by such Buyer of any covenant,
representation or warranty of such Buyer contained herein. The procedures,
terms and conditions of such indemnification by Buyer shall be substantially
the same as those applicable to Seller's indemnification of Buyer, as set
forth above.
8. Conditions Precedent To Obligations Of Buyer. The obligations
of Buyer to purchase the Shares, unless otherwise waived in writing by Buyer,
are subject to the satisfaction at or before applicable Closing of the
following:
8.1 All representations and warranties by Seller set forth in
this Agreement shall be true and correct on and as of the applicable Closing
as though made at that time.
8.2 Seller shall have performed, satisfied and complied with
all covenants, agreements and conditions required by this Agreement to be
performed or complied with on or before the applicable Closing, including
delivery of the documents as provided in Section 10.1 hereof.
8.3 During the period from December 31, 1995, to the date of
the applicable Closing, there shall not have been any material adverse change
in the financial condition or the results of operations of Xxxxx Oil, and
Xxxxx Oil shall not have sustained any material loss or damage to its assets,
whether or not insured, that materially affects its ability to conduct a
material part of its businesses.
8.4 All filings with any federal, state or local securities
law agency shall be current as of the applicable Closing and shall not be
subject to any material comments from any such organization which, in the sole
and absolute discretion of Buyer, may be adverse to Buyer's purchase of the
Shares.
8.5 Buyer shall have completed its due diligence review of
Xxxxx Oil and shall be satisfied, in its sole, absolute discretion, of all its
findings therein.
8.6 All purchases of the Shares by Buyer shall be made
one-half (1/2) by each of Xxxxxx and Xxxxxx, and both parties shall purchase
their appropriate portion thereof.
8.7 All required actions shall have been taken to constitute
Xxxxxx and Xxxxxx as the sole officers and directors of Xxxxx Oil as of the
First Closing.
9. Conditions Precedent To Obligations Of Seller. The obligations
of Seller to sell the Shares, unless otherwise waived in writing by Seller,
are subject to the satisfaction at or before the applicable Closing of the
following:
9.1 All representations and warranties by Buyer set forth in
this Agreement shall be true and correct on and as of the applicable Closing
as though made at that time.
9.2 Buyer shall have performed, satisfied and complied with
all covenants, agreements and conditions required by this Agreement to be
performed or complied with on or before the applicable Closing date, including
delivery of the documents as provided in Section 10.2 hereof.
10. Duties at Closing.
10.1 Duties of Seller. At First Closing, Seller shall deliver
to or procure the delivery to Buyer of all of the following:
10.1.1 The Articles of Incorporation, Bylaws, seals and
corporate minute books of Xxxxx Oil, all the books, records and ledgers of
Xxxxx Oil, whether written or in other form, including magnetic disk, tapes
and the like, and any other documents Buyer may reasonably request relating to
the existence of Xxxxx Oil.
10.1.2 Certificates representing all of the Block I
Shares. Such certificates shall be duly endorsed for transfer or with duly
executed Stock Powers attached, together with all other documents as may be
required, necessary or otherwise desirable to effect the valid transfer of
such Shares. All of the Shares transferred pursuant to this Agreement shall,
at First Closing, be free and clear of all liens, pledges, and claims (other
than the standard transfer restrictions).
10.1.3 A certificate signed by Seller dated as of the
First Closing and subject to no qualification certifying that the conditions
set forth in Section 8 hereof have been fully satisfied.
10.1.4 Certificates representing all of the Block II
Shares shall be delivered to Xxx Xxxxxxxxxx, as Escrow Agent, to be held
pursuant to the Option granted under Section 2.1 hereof. Such certificates
shall be duly endorsed for transfer or have duly executed Stock Powers
attached thereto, together with all other documents as may be required,
necessary or otherwise desirable to effect the valid transfer of such Block II
Shares. All of the Block II Shares transferred pursuant hereto shall, at the
First Closing and the Second Closing, be free and clear of all liens, pledges,
claims and restrictions.
10.1.5 An opinion of Seller's legal counsel in form
satisfactory to Buyer.
10.1.6 Duly adopted resolutions of the directors of
Xxxxx Oil authorizing the entry into this Agreement and the consummation of
the transactions contemplated herein.
10.1.7 An Escrow Agreement duly executed by Seller in
the form attached hereto as Schedule 2.1, escrowing the Block II Shares
pursuant to the terms thereof until the Second Closing.
10.1.8 Documents executed by all current directors and
officers of Xxxxx Oil, pursuant to which they: (i) resign all positions as
officers and directors of Xxxxx Oil effective as of the First Closing; and
(ii) elect Xxxxxx and Xxxxxx as directors and officers of Xxxxx Oil, effective
as of the First Closing, to fill the vacancies caused by their resignations,
with Xxxxxx to serve as President and Chairman of the Board and Xxxxxx to
serve as Secretary and Treasurer. After the taking of such action effective
as of the First Closing, Xxxxxx and Xxxxxx will be the sole officers and
directors of Xxxxx Oil, and there will be one vacancy on the Xxxxx Oil Board
of Directors.
10.2 Duties of Buyer. At each Closing, Buyer shall deliver to
or procure the delivery to Seller of all of the following:
10.2.1 The purchase price for the shares being acquired
by Buyer at such Closing.
10.2.2 A certificate signed by Buyer dated as of such
Closing and subject to no qualification certifying that the conditions set
forth in Section 9 hereof have been fully satisfied.
11. Public Statement and Press Releases. Buyer will hold in strict
confidence any data or information regarding Xxxxx Oil that has not already
been placed into the public domain by Xxxxx Oil. All notices to third parties
and all other publicity concerning the transactions contemplated by this
Agreement shall be planned and coordinated by the unanimous consent of all
parties hereto. All such notices shall be in form and substance as necessary
to comply with all applicable laws and regulations. The parties agree to
promptly cooperate in connection with the preparation and dissemination of a
press release regarding the transactions described in this Agreement and the
filing of a report on Form 8-K with respect thereto.
12. Survival of Representations and Warranties; Additional
Security. All Representations and Warranties of Seller and Buyer shall
survive the First and Second Closings until the expiration of the period set
forth in Section 7.6 above.
13. Miscellaneous.
13.1 Waivers. No waivers, express or implied, by either party
of any breach of any of the covenants, agreements, or duties hereunder of the
other party shall be deemed to be a waiver of any other breach thereof or the
waiver of any other covenant, agreement or duty.
13.2 Notices. All notices required to be given under this
Agreement shall be in writing, sent by certified mail, return receipt
requested, postage prepaid, to the following addresses:
If to Xxxxx Oil, then to:
Xxxxx Oil Company, Inc.
0000 Xxxx Xxxx Xxxxx Xxxxxxxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: President
If to Seller, then to:
Xxxxx Xxxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
With a copy to:
Xxxxxxx X. Xxxxxxxxxx, Esquire
000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
If to Buyer, then to:
Xxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Xxxx X. Xxxxxx
c/o Xxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
With copies to:
Xxxx Xxxxxxxxx, P.A.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
P. Xxxxxxxxx Xxxxxxxx
Holme Xxxxxxx & Xxxx LLC
000 Xxxx Xxxxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
The foregoing addresses may be changed by any of the
aforesaid persons, and additional persons may be added thereto by notifying
all of the other parties hereto in writing and in the manner hereinabove set
forth.
13.3 Assignment. No party hereto shall have the right to assign
this Agreement without the prior written consent of the other party.
13.4 Further Documents and Actions. The parties shall deliver
such other documents or take such other actions as any other party may
reasonably request in connection with the consummation of or evidencing the
transactions contemplated in this Agreement.
13.5 Counterparts. This Agreement may be executed in
counterparts, all of which, when taken together, shall constitute one and the
same original. For purposes of execution of this agreement, a facsimile copy
of any original signature shall constitute an original and may be relied upon
as such by any party hereto; provided, however, that all documents required at
each Closing shall be originals.
13.6 Termination of Agreement. This Agreement and the
transactions contemplated hereby may be terminated only as follows:
13.6.1 By mutual consent of the Seller, Xxxxx Oil and
Buyer.
13.6.2 By Buyer on the date fixed by paragraph 2.2.1
above for the First Closing, if the conditions contained in Section 8 hereof
have not been fulfilled by such date.
13.6.3 By Seller on the date fixed by paragraph 2.2.1
above for the First Closing, if the conditions contained in Section 9 hereof
have not been fulfilled by such date.
13.6.4 If this Agreement is terminated pursuant to this
Section 13.6, all obligations of Xxxxx Oil, Seller and Buyer hereunder shall
terminate, subject to other remedies permitted at law and in equity.
13.7 Modification. Neither this Agreement nor any provision
hereof shall be amended or modified (or deemed amended or modified), except by
an agreement in writing duly executed and acknowledged with the same formality
as this Agreement.
13.8 Interpretation. No provision of this Agreement shall be
interpreted for or against any party because that party or that party's legal
representative drafted that provision.
13.9 Governing Law. All matters relating to the corporate
governance of Xxxxx Oil shall be governed by the laws of the State of Utah.
All other matters affecting the interpretation of this Agreement and the
rights of the parties hereto shall be governed by the laws of the State of
Florida. In the event of any dispute with respect to this Agreement, the
transaction contemplated hereby, or the rights and obligations of the parties
arising hereunder, each of the parties expressly agrees that any legal action
initiated by Buyer against Seller will be filed in the State of Utah, and any
legal action initiated by Seller against Buyer will be filed in the State of
Florida. Counterclaims and cross claims may be filed in the same jurisdiction
as the original action to which they relate.
13.10 Independent Covenants. Each of the respective rights and
obligations of the parties hereunder shall be deemed independent and may be
enforced independently irrespective of any of the other rights and obligations
set forth herein.
13.11 Entire Understanding. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and no
amendment, modification or waiver of any provision shall be effective unless
in writing executed by the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
In the presence of: SELLER
/s/ Xxxxxxx X. Xxxxxxxxxx /s/ Xxxxx Xxxxxxxxx
Attest: XXXXX OIL COMPANY, INC., a Utah
corporation
/s/ Xxxxxxx X. Xxxxxxxxxx By:/s/Xxxxx Xxxxxxxxx
President, its
Authorized Representative
In the presence of: BUYER
/s/ P. Xxxxxxxxx Xxxxxxxx /s/ Xxxx X. Xxxxxx
XXXX X. XXXXXX
/s/ P. Xxxxxxxxx Xxxxxxxx /s/ Xxxx X. Xxxxxx
XXXX X. XXXXXX, by Xxxx X. Xxxxxx,
his attorney-in-fact
