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Exhibit 10.18
MEMBERSHIP INTEREST PURCHASE, SALE AND REDEMPTION AGREEMENT
BY AND AMONG
XXXXXX XXXXXXX, XXXXX XXXXXXX XXXXXXXXX,
XXXXX XXXXX AND XXXX XXXXXX
AS SELLERS
AND
NESCO, INC.
AS BUYER
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TABLE OF CONTENTS
Page
ARTICLE I..................................................................................................... i
1.01 DEFINITIONS..................................................................................... i
1.02 REFERENCES AND TITLES........................................................................... iii
ARTICLE II.................................................................................................... iii
2.01 THE SALES TRANSACTION........................................................................... iv
2.02 EFFECTIVE TIME OF THE SALES TRANSACTION......................................................... iv
2.03 REDEMPTION OF REMAINING MEMBERSHIP INTERESTS.................................................... iv
ARTICLE III................................................................................................... v
3.01 ORGANIZATION, GOOD STANDING, POWER.............................................................. v
3.02 CAPITALIZATION.................................................................................. v
3.03 SUBSIDIARIES.................................................................................... v
3.04 AUTHORIZATION OF AGREEMENT...................................................................... v
3.05 CONTRACTS AND AGREEMENTS........................................................................ vii
3.06 TRADE NAMES, TRADEMARKS, COPYRIGHTS, ETC........................................................ vii
3.07 PROPRIETARY RIGHTS.............................................................................. viii
3.08 TITLE TO PROPERTIES: ABSENCE OF LIENS AND ENCUMBRANCES: LEASES.................................. viii
3.09 FINANCIAL STATEMENTS; NO ADVERSE CHANGES........................................................ ix
3.10 INVENTORIES..................................................................................... x
3.11 LABOR MATTERS................................................................................... x
3.12 TAXES........................................................................................... x
3.13 EMPLOYEE MATTERS................................................................................ x
3.14 LITIGATION...................................................................................... xi
3.15 INSURANCE....................................................................................... xii
3.16 BROKERS AND FINDERS............................................................................. xii
3.17 COMPLIANCE WITH LAWS............................................................................ xii
3.18 PERMITS AND LICENSES............................................................................ xiii
3.19 BILLS AND INVOICES.............................................................................. xiii
3.20 SUPPLIERS....................................................................................... xiii
3.21 UNTRUE STATEMENTS............................................................................... xiii
3.22 ACTIONS SINCE JUNE 30, 2000..................................................................... xiv
3.23 COMPANY'S ASSETS SUFFICIENT TO CONDUCT BUSINESS OF THE COMPANY.................................. xiv
ARTICLE IV.................................................................................................... xiv
4.01 ORGANIZATION, GOOD STANDING, POWER.............................................................. xiv
4.02 BROKERS AND FINDERS............................................................................. xv
ARTICLE V..................................................................................................... xv
ARTICLE VI.................................................................................................... xv
ARTICLE VII................................................................................................... xv
7.01 CONSENTS AND APPROVALS.......................................................................... xv
7.02 CERTAIN ACTIONS, ETC............................................................................ xv
ARTICLE VIII.................................................................................................. xvi
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8.01 ACCURACY OF REPRESENTATIONS AND WARRANTIES...................................................... xvi
8.02 PERFORMANCE OF COVENANTS, AGREEMENTS AND CONDITIONS............................................. xvi
8.03 CLOSING CERTIFICATES............................................................................ xvi
8.04 NON-COMPETE, EMPLOYMENT AND OTHER AGREEMENTS.................................................... xvi
8.05 LEGAL OPINION................................................................................... xvi
8.06 CONSENTS........................................................................................ xvi
8.07 DELIVERY OF ASSIGNMENTS......................................................................... xvii
ARTICLE IX.................................................................................................... xvii
9.01 ACCURACY OF REPRESENTATIONS AND WARRANTIES...................................................... xvii
9.02 PERFORMANCE OF COVENANTS, AGREEMENTS AND CONDITIONS............................................. xvii
9.03 OFFICERS' CERTIFICATES, ETC..................................................................... xvii
9.04 LEASE OF REAL ESTATE............................................................................ xvii
ARTICLE X..................................................................................................... xvii
ARTICLE XI....................................................................................................xviii
11.01 CONFIDENTIALITY.................................................................................xviii
11.02 PUBLIC ANNOUNCEMENTS............................................................................xviii
11.03 ADDITIONAL AGREEMENTS...........................................................................xviii
11.04 FORWARDING PAYMENTS AND PROPERTIES..............................................................xviii
11.05 AVAILABLE REMEDIES..............................................................................xviii
11.06 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.....................................xviii
11.07 ACTIONS OF THE PARTIES AFTER THE CLOSING........................................................ xx
ARTICLE XII................................................................................................... xxi
12.01 CLOSING......................................................................................... xxi
12.02 EXPENSES........................................................................................ xxii
12.03 NOTICES......................................................................................... xxii
12.04 TIME............................................................................................xxiii
12.05 ENTIRE AGREEMENT; AMENDMENT.....................................................................xxiii
12.06 BINDING EFFECT; BENEFITS........................................................................xxiii
12.07 ASSIGNMENT......................................................................................xxiii
12.08 APPLICABLE LAW..................................................................................xxiii
12.09 COUNTERPARTS....................................................................................xxiii
12.10 WAIVER OF TRANSFER RESTRICTIONS.................................................................xxiii
Exhibit A - List of Excluded Assets
Exhibit B - Financial Statements
Exhibit C - Lease Agreement
Exhibit D - Non-Compete Agreement
Exhibit E - Employment Agreement
Exhibit F - Sellers' Opinion of Legal Counsel
Schedule 2.01 - Shares of Membership Interest Sold to Buyer
Schedule 3.05 - Material Contracts
Schedule 3.08 - Conditions of Tangible Personal Property
Schedule 3.15 - Insurance
Schedule 3.18 - Scheduled Permits
Schedule 3.20 - Suppliers
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MEMBERSHIP INTEREST PURCHASE, SALE AND REDEMPTION AGREEMENT
This Agreement is entered into as of September 28, 2000 (this "Agreement"),
by and among NESCO, Inc., an Oklahoma corporation ("Buyer"), and Xxxxxx
Xxxxxxx, Xxxxx Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx and Xxxx Xxxxxx
(collectively, "Sellers"; each, a "Seller"). Kentucky Environmental
Network, LLC, a Kentucky limited liability company (the "Company"),
which joins as a party hereto for the limited purpose of the Redemption
Transaction and the other matters specifically referred to herein.
RECITALS:
WHEREAS, Sellers own all of the issued and outstanding membership interests of
the Company.
WHEREAS, Buyer desires to purchase and Sellers desire to sell, on the
terms, in the manner and subject to the conditions reflected below, all the
issued and outstanding membership interests of the Company, except the
membership interests set forth in Section 2.03, which shall be retained by the
Sellers said purchase of membership interests referred to herein as the "Sales
Transaction" and immediately after the Sales Transaction surrendered by Sellers
to the Company in redemption thereof, said surrender of membership interests
referred to herein as the "Redemption Transaction."
WHEREAS, the parties hereto desire to make certain representations,
warranties, covenants and agreements in connection with such purchase, sale and
redemption of membership interests provided for in this Agreement and also to
prescribe various conditions to such purchase, and sale and redemption of
membership interests.
NOW THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements herein set forth,
the parties to this Agreement have agreed, and hereby agree subject to
the terms and conditions hereinafter set forth, as follows:
ARTICLE I
DEFINITIONS
1.01 DEFINITIONS. Capitalized terms used herein shall have the meanings
ascribed to them in this Article I, unless such terms are defined elsewhere in
this Agreement.
AFFILIATES: of any person means persons who control, are controlled by
or in common control with such person.
BUSINESS: shall mean the current business of the Company of
environmental consulting and remediation and related services and any other
business of or activity by the Company necessary to accomplish the foregoing
purposes.
CLOSING: as defined in Section 2.01(a).
COMPANY: Kentucky Environmental Network, LLC, a Kentucky limited
liability company, which term shall include all subsidiary corporations, limited
liability companies, partnership or other business entities, if any.
COMPANY LIABILITIES: those liabilities of the Company at the date of
Closing.
EFFECTIVE TIME OF THE SALES TRANSACTION: as defined in Section 2.02.
EXCLUDED ASSETS: the assets of the Company listed on EXHIBIT A which
are to be assigned or distributed to Sellers at Closing pursuant to Section
2.03.
FINANCIAL STATEMENTS: those financial statements of the Company
described in Section 3.09 and attached hereto as EXHIBIT B.
GOVERNMENTAL ENTITY: any court, government, governmental agency,
commission or instrumentality, domestic or foreign.
KENTUCKY LAW: the Kentucky Limited Liability Company Act, as amended.
LEGAL REQUIREMENTS: any law, statute, ordinance, decree, requirement,
order, judgment, rule or regulation of, including the terms of any license,
certificate, franchise or permit issued by, the United States, any state,
commonwealth, territory or possession thereof and any political or judicial
subdivision or instrumentality of the foregoing, including, without limitation,
courts, departments, commissions, boards, bureaus or agencies.
MATERIAL CONTRACTS: those contracts, agreements, instruments and other
obligations described in Section 3.05(a).
OKLAHOMA LAW: the Oklahoma General Corporation Act, as amended.
PERMITTED ENCUMBRANCES: shall mean any and all (a) liens for taxes not
yet due or delinquent; (b) statutory liens arising in the ordinary course of
business by operation of law with respect to a liability that is not yet due or
delinquent; and (c) minor imperfections of title or similar liens which should
not reasonably be expected to adversely affect the Company's ownership or use of
its assets.
PROPRIETARY RIGHTS: trade secrets, copyrights, patents, trademarks,
service marks, customer lists, databases and all similar types of intangible
property developed, created, or owned by the Company, or used by the Company in
connection with the Business, whether or not the same are entitled to legal
protection, including without limitation: (a) all designs, methods, inventions
and know-how related thereto, (b) all trademarks, trade names (including
"Kentucky Environmental Network"), service marks, and copyrights claimed or used
by the Company
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whether or not they have been registered, and (c) all customer lists of the
Company and (d) corporate names used by the Company.
PURCHASE PRICE: the consideration to be paid by Buyer to Sellers for
the membership interests as provided in Section 2.01(b).
REVENUE PERCENTAGE: as defined in Section 2.01(b).
SALES TRANSACTION DOCUMENTS: the documents, instruments, agreements,
etc. referred to in Section 2.01(a).
TAXES: all net income, gross income, gross receipts, sales and use, ad
valorem, franchise, profits, licenses, withholding, payroll, excise, severance,
stamp, occupation, property, customs duties or other taxes, fees or charges of
any kind whatsoever imposed by a foreign, federal, state, county or local taxing
authority together with any interest or penalty thereon.
TRANSACTIONS: the Sales Transaction and the Redemption Transaction
collectively.
1.02 REFERENCES AND TITLES. All references in this Agreement to
Exhibits, Schedules, Articles, Sections, subsections and other subdivisions
refer to the corresponding Exhibits, Schedules, Articles, Sections, subsections
and other subdivisions of or to this Agreement unless expressly provided
otherwise. Titles appearing at the beginning of any Articles, Sections,
subsections or other subdivisions of this Agreement are for convenience only, do
not constitute any part of this Agreement, and shall be disregarded in
construing the language hereof. The words "this Agreement," "herein," "hereby,"
"hereunder" and "hereof," and words of similar import, refer to this Agreement
as a whole and not to any particular subdivision unless expressly so limited.
The words "this Article," "this Section" and "this subsection," and words of
similar import, refer only to the Article, Section or subsection hereof in which
such words occur. The word "or" is not exclusive, and the word "including" (in
its various forms) means including without limitation. Pronouns in masculine,
feminine or neuter genders shall be construed to state and include any other
gender, and words, terms and titles (including terms defined herein) in the
singular form shall be construed to include the plural and vice versa, unless
the context otherwise requires.
As used in the representations and warranties contained in this Agreement, the
phrase "to the knowledge" of the representing party shall mean that
responsible officers of such representing party, individually or
collectively, either (a) know that the matter being represented and
warranted is true and accurate or (b) have no reason, after reasonable
inquiry, to believe that the matter being represented and warranted is
not true and accurate.
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ARTICLE II
MEMBERSHIP INTEREST PURCHASE, SALE AND REDEMPTION
2.01 THE SALES TRANSACTION. (a) At the Effective Time of the Sales
Transaction, in accordance with the terms of this Agreement, Sellers shall sell
to Buyer, and Buyer shall purchase from Sellers the number of shares of
membership interests in the Company set forth opposite each Seller's name in
Schedule 2.01 attached hereto, and Buyer will make payment to Sellers
collectively in the amounts indicated in Section 2.01(b) below. The consummation
of the Transaction together with the delivery of the various membership interest
certificates, assignments, conveyances, officer certificates, agreements,
assumptions, opinions and other documents required or contemplated by this
Agreement (the "Sales Transaction Documents") is herein called the "Closing."
(b) The Purchase Price shall consist of the following:
(i) Buyer shall pay the sum of $600,000 less the
aggregate amount of liabilities of the Company at the Effective Time of
the Sales Transaction (offset by the amount of any prepaid expenses of
the Company on such date) payable to the joint order of the Sellers at
Closing by delivery of a check;
(ii) Buyer shall pay Sellers five percent of the gross
revenues invoiced and actually collected by Buyer for environmental
consulting and remediation services rendered in the State of Kentucky
(the "Revenue Percentage") during the period of five years following
the date of Closing. Such Revenue Percentage shall not apply to
discounts granted to Buyer's customers in the normal course of
business, disallowances by any state agency responsible for
reimbursement of charges for work invoiced to such agency, revenues
received or to be received that are in dispute (until such dispute is
resolved and revenues are actually received by Buyer), and revenues
deemed by Buyer in its sole discretion to be non-collectable revenues.
Revenues collected from engineering and other services not related to
environmental consulting and remediation and all other revenues
collected by Buyer outside the State of Kentucky shall not be included
in the calculation or payment of the Revenue Percentage. The Revenue
Percentage shall be payable by the Buyer by check to the joint order of
the Sellers within thirty (30) days after the end of the calendar month
in which the Buyer receives payment for said services giving rise to
said payment obligation hereunder.
2.02 EFFECTIVE TIME OF THE SALES TRANSACTION. The effective date of
Sales Transaction is the Closing Date, and the Sales Transaction shall become
effective, subject to the terms and conditions of this Agreement, when the
actions and deliveries set forth in Articles VII, VIII and VIV below shall have
in all respects been completed. The date and time when the Sales Transaction
shall become effective as aforesaid is herein referred to as the "Effective Time
of the Sales Transaction" and all items of income, gain, loss and distributions
of the Company allocable with respect to the membership interests being conveyed
to Buyer hereunder shall be allocated as of said date.
2.03 REDEMPTION OF REMAINING MEMBERSHIP INTERESTS. Immediately after
the transfer of the membership interests in the Company pursuant to Section
2.01, the Sellers shall surrender
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and transfer to the Company for redemption, all of the remaining shares of
membership interests owned by Sellers, so that after said surrender and
redemption, the Buyer shall be the sole member of the Company owning all of
the outstanding membership interests in the Company. In exchange for the
shares of membership interests in the Company surrendered and redeemed under
this Section 2.03, the Company shall distribute, assign, pay, convey and
transfer to the Sellers the Excluded Assets listed on EXHIBIT A attached
hereto and the Sellers shall thereby indemnify and hold Buyer harmless from
any and all loss, cost, expense, liabilities, obligations, charges and
commitments attributable to the Excluded Assets regardless of whether the
same accrue or are incurred before or after the Effective Time of the Sales
Transaction.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers each hereby jointly and severally represent and warrant to
Buyer as follows:
3.01 ORGANIZATION, GOOD STANDING, POWER. The Company is a limited
liability company duly organized, validly existing and in good standing under
Kentucky law and has the requisite power and authority to carry on its business
as it is now being conducted. The Company is duly qualified as a foreign limited
liability company to do business, and is in good standing, in each jurisdiction
where the character of the properties owned or leased by it, or the nature of
its activities, is such that qualification as a foreign limited liability
company in that jurisdiction is required by law except for those jurisdictions
in which the failure to be so qualified would not, in the aggregate, have a
material adverse effect on the Business of the Company.
3.02 CAPITALIZATION. All of the shares of membership interests of the
Company that are outstanding as of the date hereof, or will be outstanding
immediately prior to the Effective Time of the Sales Transaction, are or will be
duly authorized, validly issued, fully paid and nonassessable, are not or will
not be subject to, or issued in violation of, any preemptive rights. Except as
set forth above, there are no other membership interests authorized or
outstanding, and there are no other agreements, claims or commitments of any
nature whatsoever (whether firm or conditional) obligating the Company to issue,
transfer, deliver to sell, or cause to be issued, transferred, delivered or
sold, additional membership interests or other interests of the Company or
obligating the Company to grant, extend or enter into any such agreement or
commitment.
3.03 SUBSIDIARIES. The Company does not own, directly or indirectly,
any shares of stock or any other equity or long-term debt securities of any
corporation or have any material equity interest in any firm, partnership, joint
venture, association or other entity.
3.04 AUTHORIZATION OF AGREEMENT. (a) Sellers have all requisite power
and authority to enter into and perform all of their obligations under this
Agreement. The execution and delivery of this Agreement by Sellers and the
consummation by Sellers of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of Sellers. This Agreement has
been duly executed and delivered by Sellers and constitutes the legal, valid and
binding obligation of Sellers, enforceable against Sellers in accordance with
its terms except as
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enforceability may be subject to (i) any applicable bankruptcy, insolvency,
reorganization or other law relating to or affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(b) Neither the execution and delivery of this Agreement by Sellers nor
the consummation of the Transactions and the other transactions contemplated
hereby to be performed by Sellers will (i) violate or conflict with any
provision of the Articles of Organization or the Operating Agreement of the
Company, as currently in effect, or (ii) violate or conflict with any provision
of any law, rule, regulation, order, permit, certificate, writ, judgment,
injunction, decree, determination, award or other decision of any Governmental
Entity, other regulatory or self-regulatory body or association or arbitrator
binding upon the Company or the Business, except where such violations or
conflicts would not in the aggregate have a material adverse effect on the
Business, properties, financial condition or results of operations of the
Company or on the ability of Sellers to consummate the transactions contemplated
hereby, and except for violations that will be cured, waived or terminated prior
to the Effective Time of the Sales Transaction.
(c) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby to be performed by Sellers
will result in a breach of or constitute a default (or with notice or lapse of
time or both result in a breach of or constitute a default) under, or give rise
to a right of termination, cancellation, acceleration or repurchase of any
obligation or a right of first refusal with respect to any material property or
asset or a loss of a material benefit or the imposition of a material penalty
under, any of the terms, conditions or provisions of:
(i) any mortgage, indenture, loan, or credit agreement or
any other agreement or instrument evidencing indebtedness for money
borrowed to which any of Sellers or the Company is a party or by which
it or any of its properties is bound or affected, or pursuant to which
any of Sellers or the Company has guaranteed the indebtedness or
preferred stock of any person or entity, or
(ii) any contract, lease, license, tariff, or other
agreement or instrument to which the Company is a party or by which it
or any of its properties is bound or affected.
(d) Neither the execution and delivery by Sellers of this Agreement nor
the consummation of the transactions contemplated hereby to be performed by
Sellers will result in, nor require, the creation or imposition of any mortgage,
deed of trust, pledge, lien, security interest or other charge or encumbrance of
any nature upon or with respect to any of the properties or other assets now or
hereafter owned by the Company except where such would not in the aggregate have
a material adverse effect on the Business, properties, financial condition or
results of operations of the Company or on the ability of the Company to
consummate the transactions contemplated hereby.
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(e) No consent, approval, order, certificate or authorization of, or
registration, declaration or filing with, any Governmental Entity is required by
or with respect to Sellers or the Company in connection with the execution and
delivery of this Agreement by Sellers or the consummation by Sellers of the
transactions contemplated hereby, other than such filings or registrations that,
if not made, and such authorizations, consents or approvals, that, if not
received, would not in the aggregate have a material adverse effect on the
Business, properties, financial condition or results of operations of the
Company or on the ability of Sellers to consummate the transactions contemplated
hereby.
(f) The Company has made or obtained each registration, filing,
submission, license, permit, certificate, determination or governmental approval
necessary to enable it to carry on the Business. All such registrations, filings
and submissions with any Governmental Entity relating to the operations of the
Company were in material compliance with applicable law when filed, and no
material deficiencies have been asserted by any such authority with respect to
such registrations, filing or submissions.
3.05 CONTRACTS AND AGREEMENTS. (a) Before the Closing, Sellers will, or
will cause the Company to, provide Buyer access to and the right to copy all
contracts, agreements, commitments and instruments, including any and all
amendments thereto involving a commitment or obligation on to the party or
parties to the contracts, agreements, commitments and instruments of $5,000 or
more (the "Material Contracts"), whether written or oral, to which the Company
is a party or by which the Company or any of its assets are bound, including,
but not limited to, purchase orders and agreements, maintenance agreements, bulk
purchase contracts, employment agreements, commission agreements and any
contracts, agreements or written arrangements pursuant to which any affiliate of
the Company receive any payments from or provide services, supplies, equipment
or other materials to, the Company. SCHEDULE 3.05 lists each of the Material
Contracts.
(b) The Company has complied in all material respects with the
provisions of all the Material Contracts; the Company is not in material breach
or default under, and there is no valid basis for any claim of breach or default
under, and there has been no waiver of any breach or default under, any term or
provision of any Material Contract; all the Material Contracts are in full force
and effect and constitute legal, valid and binding obligations of the respective
parties thereto in accordance with their terms. There has been no amendment or
modification of any of the Material Contracts, except such amendments that have
been delivered to Buyer. The Company is not participating in any discussions or
negotiations regarding modification of any of the Material Contracts. The
Material Contracts may be assigned to Buyer pursuant to this Agreement and the
enforceability of any of the Material Contracts will not be impaired by the
consummation of the transactions contemplated in this Agreement.
3.06 TRADE NAMES, TRADEMARKS, COPYRIGHTS, ETC. The Company has not
conducted any part of the Business or utilized any of its assets preceding the
date of this Agreement under a trade name, fictitious name or other similar name
other than Kentucky Environmental Network, LLC or Kentucky Environmental
Network, Inc. There have not been asserted against the
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Company any claims that any product, activity or operation of the Company
infringes upon or involves, or had resulted in the infringement of, any
proprietary right of any other person, corporation or other entity; and no
proceedings have been instituted, are pending or are threatened which
challenge the rights of the Company with respect thereto, in each case, which
would have a material adverse effect on the business, properties, financial
condition or results of operations of the Company.
3.07 PROPRIETARY RIGHTS. The Company possesses full ownership of, or
adequate and enforceable long-term licenses or other rights to use (without
payment), all Proprietary Rights owned by or registered in the name of and of
the Company or used in the Business without any known conflict with the rights
of others. The Company has in all material respects performed all of the
obligations required to be performed by it, and is not in default in any
material respect, under any agreement relating to any Proprietary Right.
Proprietary Rights constitute trade secrets of the Company within the meaning of
all applicable laws, and, to Sellers' knowledge, the Company has taken all
reasonable necessary steps required by law to protect these trade secrets as
such. The Company owns or has valid rights to use all Proprietary Rights. No
person has made or, to Sellers' knowledge, threatened to make any claims that
the operation of the Business is in violation of or infringes any Proprietary
Rights or any other proprietary or trade rights of any third person. To Sellers'
knowledge, no third person is in violation of or is infringing upon any
Proprietary Rights. The Proprietary Rights include all of such rights and
interests which are reasonably necessary for the conduct of the Business as it
is currently being conducted.
3.08 TITLE TO PROPERTIES: ABSENCE OF LIENS AND ENCUMBRANCES: LEASES.
(a) The Company has good and marketable title to the material assets (other than
Excluded Assets), tangible and intangible, free and clear of all mortgages,
liens, pledges, charges and encumbrances of any nature whatsoever except for
those liabilities which are recorded on the Financial Statements as such and
except for Permitted Encumbrances.
(b) Except for the lease arrangement for the real property to be
replaced by the lease described in Section 9.04, the Company has not entered
into any leases or agreements under which the Company is lessee of, or holds or
operates, any property owned by any third party and which are to be assumed by
Buyer, including in each case, the expiration date of such lease or agreement,
the payments to be made thereunder, the details of any option to renew or to
purchase thereunder, the name or names of the lessor of each such lease and a
brief description of the property covered thereby. Each such lease and agreement
is in good standing and is valid and binding in accordance with its terms. The
Company and each lessor have in all material respects performed all the
obligations required to be performed by them to date and are not in default in
any material respect under any such lease or agreement. None of the rights of
the Company in such property under any such lease or agreement is subject to
termination as the result of the transactions contemplated by this Agreement.
(c) Except as disclosed in SCHEDULE 3.08, the material items of
tangible personal property of the Company are in good operating condition and
repair, subject to ordinary wear and tear. The Company is not in violation of
any applicable regulation, ordinance or other similar law,
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order, regulation or requirement relating to the Business or properties
(including the placement, installation, operation, configuration, design or
maintenance of emissions from such properties) which, if enforced, would
materially and adversely affect the Business, properties, financial condition
or results of operations.
3.09 FINANCIAL STATEMENTS; NO ADVERSE CHANGES. Sellers or the Company
have delivered to Buyer copies of the Company's unaudited balance sheet as at
December 31, 1999, and income statements for the year ended December 31, 1999,
and its balances sheet as at June 30, 2000 and income statements for the six
months ended June 30, 2000 (the "Financial Statements") copies of which are
attached hereto as EXHIBIT B. The Financial Statements are complete in all
material respects, present fairly the financial condition of the Company at the
dates indicated, and the results of operations for the respective periods
indicated, and, except to the extent described in SCHEDULE 3.09 or in such
Financial Statements, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis. None of the Financial
Statements includes or omits an asset or a liability or obligation of any kind
or nature (whether known or unknown and whether absolute, accrued, contingent or
other), the inclusion or omission of which would render such Financial
Statements materially misleading. The Company has no liabilities (of any kind or
nature, whether known or unknown and whether absolute, accrued, contingent or
other) that are not adequately reflected or reserved against on the face of the
Financial Statements except liabilities incurred since such date in the ordinary
course of business and consistent with past practice. Without limiting the
foregoing, (a) there are no unpaid leasehold improvements at any of the
Company's facilities or locations for which the Company is or will be
responsible and (b) there are no deferred rents due to lessors at or with
respect to any of such facilities or locations. Since June 30, 2000, other than
as contemplated or caused by this Agreement, there has not been (a) any material
adverse change in the business, condition (financial or otherwise), operations,
or prospects of the Company; (b) any damage, destruction, or loss, whether
covered by insurance or not, having a material adverse effect on the Business,
condition (financial or otherwise), operations, or prospects of the Company; (c)
any entry into or termination of any material commitment, contract, agreement,
or transaction (including, without limitation, any material borrowing or capital
expenditure or sale or other disposition of any material asset or assets) of or
involving the Company other than this Agreement and agreements executed in the
ordinary course of business; (d) any redemption, repurchase, or other
acquisition for value of Units by the Company, or any issuance of Units of the
Company or of securities convertible into or rights to acquire any such Units or
any dividend or distribution declared, set aside, or paid on the Units; (e) any
transfer of or right granted under any material lease, license, agreement,
patent, trademark, trade name, or copyright of the Company; (f) any sale or
other disposition of any asset of any of the Company, or any mortgage, pledge,
or imposition of any lien or other encumbrance on any asset of the Company,
other than in the ordinary course of business, or any agreement relating to any
of the foregoing; or (g) any default or breach by the Company in any material
respect under any contract, license or permit. Since June 30, 2000, the Company
has conducted the Business only in the ordinary and usual course, and, without
limiting the foregoing, no changes have been made in (a) executive compensation
levels; (b) the manner in which other employees of the Company are compensated;
(c) supplemental benefits provided to any such executives or other employees;
(d) inventory levels in relation to sales levels, except, in any such
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case, in the ordinary course of business and, in any event, without material
adverse effect on the Business, condition (financial or otherwise),
operations, or prospects of the Company, or any mortgage, pledge, or
imposition of any lien or other encumbrance on any asset of the Company,
other than in the ordinary course of business, or any agreement relating to
any of the foregoing or (e) any default or breach by the Company in any
material respect under any contract, license or permit.
3.10 INVENTORIES. All inventories of the Company are of a quality and
quantity usable and salable in the ordinary course of business, except for
obsolete items and items of below-standard quality, all of which, in the
aggregate, are immaterial in amount.
3.11 LABOR MATTERS. There are no activities or controversies,
including, without limitation, any labor organizing activities, election
petitions or proceedings, proceedings preparatory thereto, unfair labor practice
complaints, labor strikes, disputes, slowdowns, or work stoppages, pending or,
to the best of the knowledge of Sellers, threatened, between the Company and any
of its employees.
3.12 TAXES. Except as otherwise provided herein, all Taxes due and
payable by the Company for all periods ending on or before the date of the
Closing have been paid by the Company in full, or have been reserved against in
the Financial Statements. There are no federal, state or local tax liens upon
any assets of the Company. All returns and reports of Taxes required to be filed
by or with respect to the Company or Sellers, on or before the date of the
Closing, have been filed by the Company or Sellers, and all Taxes due as shown
thereon have been paid by the Company or Sellers. No issues have been raised (or
are currently pending) by any governmental authority in connection with any of
such returns or reports.
3.13 EMPLOYEE MATTERS.
(a) Neither the Company nor any Company subsidiary or other affiliated
trade or business, whether or not incorporated (a "Company ERISA Affiliate"), in
which any employee or co-employee of any of the Company ERISA Affiliates
participates or is covered, that together with the Company would be considered
affiliated with the Company under Section 414(b), (c), (m) or (o) of the
Internal Revenue Code, as amended (the "Code") or Section 4001(b)(1) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), has
sponsored, maintained or contributed to for the benefit of any person who, as of
the Closing, is a current or former employee or subcontractor of the Company or
any Company Affiliate any (i) "employee benefit plan," as such term is defined
in Section 3(3) of ERISA (each, a "Company Plan"); or (ii) personnel policy,
stock option plan, bonus plan or arrangement, incentive award plan or
arrangement, vacation policy, severance pay plan, policy, program or agreement,
deferred compensation agreement or arrangement, executive compensation or
supplemental income arrangement, retiree benefit plan or arrangement, fringe
benefit program or practice (whether or not taxable), employee loan, consulting
agreement, employment agreement and each other employee benefit plan, agreement,
arrangement, program, practice or understanding which is not described in
Section 3.13(a)(i).
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(b) Neither the Company nor any Company ERISA Affiliate contributes to
or has an obligation to contribute to, nor has at any time contributed to or had
an obligation to contribute to, a multi-employer plan within the meaning of
Section 3(37) of ERISA or any other plan subject to Title IV of ERISA.
(c) No employee is currently on a leave of absence due to sickness or
disability and no claim is pending or expected to be made by an employee, former
employee or independent contractor for workers' compensation benefits.
(d) There exists no condition or set of circumstances in connection
with any of the Company or any of the Company ERISA Affiliates that could be
expected to result in liability reasonably likely to have a material adverse
effect on the Company under ERISA, the Code or any other applicable law. There
are no unfunded benefit obligations which have not been accounted for by
reserves, or otherwise properly footnoted in accordance with generally accepted
accounting principles, on the financial statements of the Company, which
obligations are reasonably likely to have a material adverse effect on the
Company.
(e) Neither the execution or delivery of this Agreement nor the
consummation of the transactions contemplated hereby will result in any payment
becoming due to any employee or group of employees of any of the Company.
3.14 LITIGATION.
(a) There is no claim, action, suit, proceeding, arbitration,
investigation or inquiry now pending or, to the knowledge of any of Sellers,
threatened against, relating to or affecting the Company or the assets,
properties or the Business of the Company or that questions the validity of this
Agreement or affects the transactions contemplated herein; nor is there any
basis for any such claim, action, suit, proceeding, arbitration, investigation
or inquiry.
(b) Neither the Company nor any of its directors, managers, officers or
employees, if any, has been permanently or temporarily enjoined or prohibited by
order, judgment or decree of any Governmental Entity, other regulatory or
self-regulatory body or association, or arbitrator from engaging in or
continuing any conduct or practice in connection with the Business engaged in by
the Company.
(c) There is not in existence any order, judgment or decree of any
Governmental Entity, other regulatory or self-regulatory body or association or
arbitrator enjoining or prohibiting Sellers or the Company from taking, or
requiring Sellers or the Company to take, any action of any kind or to which the
Company or any of the Business, or any of the properties or assets material to
the operations of the Business, are subject or bound.
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(d) The Company is not in default in any respect under any order, writ,
injunction or decree of any Governmental Entity, other regulatory or
self-regulatory body or association or arbitrator.
3.15 INSURANCE. SCHEDULE 3.15 lists each insurance policy maintained
the Company on any of its properties including the coverage and deductible
amounts and expiration dates. The insurance coverage maintained by the Company
at the date of this Agreement is in the judgment of Sellers adequate in scope
and amount in view of the properties owned and operations carried on by it. The
Company has complied in all material respects with the provisions of all such
policies. All of the policies listed on SCHEDULE 3.15 will remain in full force
and effect following the Transactions in favor of the Company and/or Buyer.
3.16 BROKERS AND FINDERS. Except for the managers, directors or
officers, if any, of the Company, no person has acted on behalf of Sellers or
the Company in connection with any negotiations relative to this Agreement and
the transactions contemplated hereby. No person has a valid claim for a
brokerage commission, finder's fee or other like payment against Buyer, Sellers
or the Company based upon any arrangement or agreement or other action taken
made by or on behalf of Sellers or the Company.
3.17 COMPLIANCE WITH LAWS. Except where it would not have a material
adverse effect upon the Company, or the Business, properties, financial
condition or results of operations:
(a) The Company is in compliance in all material respects with all
Legal Requirements applicable to any of its properties or assets and/or the
ownership, operation and use thereof, and none of Sellers or the Company has
received notice of any noncompliance or alleged noncompliance with any Legal
Requirement relating or applicable to any of its properties or assets or to the
operation of the Business, the existence or enforcement of which would have a
material adverse effect on the Buyer's ability to operate them on the same basis
as currently conducted and operated or which would require the payment of
refunds, fines, penalties or restitution in respect of matters occurring prior
to the Effective Time of the Transaction, including, without limitation, any
Legal Requirement relating to (i) wages, hours, hiring, non-discrimination,
promotion, retirement, benefits, pensions or working conditions, (ii) air,
water, noise, odor or solid or liquid waste (including the generation,
treatment, storage, disposal or transportation thereof), (iii) health and
safety, (iv) zoning, (v) the production, processing, advertising, sales or
warranty of products or services of its Business or (vi) trade or antitrust
regulations.
(b) Without limiting the generality of the foregoing, there exists no
noncompliance with, or any condition which would result in liability under, any
applicable Legal Requirements relating to air, water, noise, odor, solid or
liquid waste (including the generation, treatment, storage, disposal or
transportation thereof) or health and safety, which would have a material
adverse effect on Buyer's ability to operate the Business of any of the Company
subsequent to the Effective Time of the Transaction on substantially the same
basis as currently conducted and operated or would require the payment of fines,
penalties or remedial expenditures in respect of facts, conditions or matters
occurring or existing prior to the Effective Time of the Transaction.
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(c) The Company has not handled, treated, stored or disposed of, or
arranged for the handling, treatment, storage or disposal of any wastes or toxic
or hazardous substances or hazardous wastes on any of its real property or, as
to wastes and substances generated by the Business off such real property,
except in compliance with all Legal Requirements in effect at the time such
activity was taken.
3.18 PERMITS AND LICENSES. SCHEDULE 3.18 sets forth all permits,
licenses, certificates, authorizations and approvals granted by any Governmental
Entity and used or held for use in connection with the Business other than sales
tax permits, certificates of occupancy, and certificates of corporate authority
(the "Scheduled Permits"). The Scheduled Permits, the Company's occupancy
certificates, sales tax permits and certificates of corporate authority
constitute all permits, licenses, certificates, authorizations and approvals
necessary for the continued ownership, use and operation of the Business in all
material respects in the manner heretofore owned, used and operated by the
Company. All fees and other payments due and owing in connection with the
Scheduled Permits have been paid in full, and there are no unpaid fees or other
payments that could cause the lapse or revocation of any of the Scheduled
Permits.
3.19 BILLS AND INVOICES. All bills and other payments due and payable
by the Company with respect to the Company's assets and the Business have been
or will be paid in full in the ordinary course of business, and no labor,
material or services have been provided or performed with respect to the
Company's assets that have not been or will not be paid in full.
3.20 SUPPLIERS. SCHEDULE 3.20 contains a complete and accurate list of
the 25 largest suppliers to the Company (based on 1999 purchases), together with
the volume of the purchases made from such suppliers during 1999. To Sellers'
knowledge, none of such suppliers intends to cease selling to the Company or to
materially alter the amount of such sales as a result of the transactions
contemplated hereby or otherwise.
3.21 UNTRUE STATEMENTS. This Agreement and the exhibits, schedules and
appendices hereto, the Financial Statements and all other documents and
information furnished by Sellers or the Company or any of their respective
Affiliates or representatives to Buyer or its representatives pursuant hereto or
in connection herewith does not include and will not include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements made herein and therein not misleading. There are no facts
specific to the Company (and not relating to the industry, governmental
regulation, the economy or market conditions, weather or other such matters
which would affect the Company and all other similar or competitive businesses
generally)which materially and adversely affect or, so far as Sellers can now
reasonably foresee, will materially and adversely affect the business,
prospects, operations or principal properties of the Company or the ability of
any party to perform its obligations under this Agreement.
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3.22 ACTIONS SINCE JUNE 30, 2000. Since June 30, 2000, neither Sellers
nor the Company has taken any actions that would be prohibited under the
provisions of this Agreement (without the prior consent of Buyer) after the date
of this Agreement.
3.23 COMPANY'S ASSETS SUFFICIENT TO CONDUCT BUSINESS OF THE COMPANY.
The Company's assets include, and after the distribution of the Excluded Assets
to Sellers pursuant to the Redemption Transaction will continue to include, all
of the property, equipment, facilities, rights, permits, licenses and other
requirements for Buyer to be able to conduct the Business.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
BUYER HEREBY REPRESENTS AND WARRANTS TO SELLERS AS FOLLOWS:
4.01 ORGANIZATION, GOOD STANDING, POWER.
(a) BUYER IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER OKLAHOMA LAW AND HAS ALL REQUISITE CORPORATE POWER AND AUTHORITY
TO ENTER INTO AND PERFORM ALL OF ITS OBLIGATIONS UNDER THIS AGREEMENT. THE
EXECUTION AND DELIVERY OF THIS AGREEMENT BY BUYER AND THE CONSUMMATION BY BUYER
OF THE TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY CORPORATE ACTION ON THE PART OF BUYER. THIS AGREEMENT HAS BEEN DULY
EXECUTED AND DELIVERED BY BUYER AND CONSTITUTES THE LEGAL, VALID AND BINDING
OBLIGATION OF BUYER, ENFORCEABLE AGAINST BUYER IN ACCORDANCE WITH ITS TERMS
EXCEPT AS ENFORCEABILITY MAY BE SUBJECT TO (i) ANY APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION OR OTHER LAW RELATING TO OR AFFECTING CREDITORS'
RIGHTS GENERALLY AND (ii) GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER
SUCH ENFORCEABILITY IS CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW).
(b) NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY BUYER NOR
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY TO BE PERFORMED BY
BUYER WILL (i) VIOLATE OR CONFLICT WITH ANY PROVISION OF THE ARTICLES OF
ORGANIZATION OR OPERATING AGREEMENT, AS CURRENTLY IN EFFECT, OF BUYER OR (ii)
VIOLATE OR CONFLICT WITH ANY PROVISION OF ANY LAW, RULE, REGULATION, ORDER,
PERMIT, CERTIFICATE, WRIT, JUDGMENT, INJUNCTION, DECREE, DETERMINATION, AWARD OR
OTHER DECISION OF ANY GOVERNMENTAL ENTITY, OTHER REGULATORY OR SELF-REGULATORY
BODY OR ASSOCIATION OR ARBITRATOR BINDING UPON BUYER OR ANY OF ITS PROPERTIES,
EXCEPT WHERE SUCH VIOLATIONS OR CONFLICTS WOULD NOT IN THE AGGREGATE HAVE A
MATERIAL ADVERSE EFFECT ON THE BUSINESS, FINANCIAL CONDITION OR PROPERTIES OF
BUYER OR ON THE ABILITY OF BUYER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREBY AND EXCEPT FOR VIOLATIONS THAT WILL BE CURED, WAIVED OR TERMINATED PRIOR
TO THE EFFECTIVE TIME OF THE TRANSACTION.
(c) NO CONSENT, APPROVAL, ORDER OR AUTHORIZATION OF, OR REGISTRATION,
DECLARATION OR FILING WITH, ANY GOVERNMENTAL ENTITY IS REQUIRED BY OR WITH
RESPECT TO BUYER IN
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CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY BUYER OR THE
CONSUMMATION BY BUYER OF THE TRANSACTIONS CONTEMPLATED HEREBY SUCH FILINGS OR
REGISTRATIONS WHICH, IF NOT MADE, AND SUCH AUTHORIZATIONS, CONSENTS OR
APPROVALS WHICH, IF NOT RECEIVED, WOULD NOT HAVE ANY MATERIAL ADVERSE EFFECT
ON THE BUSINESS, FINANCIAL CONDITION, OR PROPERTIES OF BUYER OR ON THE
ABILITY OF BUYER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY.
4.02 BROKERS AND FINDERS. EXCEPT FOR THE OFFICERS AND DIRECTORS OF
BUYER, NO PERSON HAS ACTED ON BEHALF OF BUYER IN CONNECTION WITH ANY
NEGOTIATIONS RELATIVE TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY. NO PERSON HAS A VALID CLAIM FOR A BROKERAGE COMMISSION, FINDER'S FEE OR
OTHER LIKE PAYMENT AGAINST SELLERS, BUYER OR THE COMPANY BASED UPON ANY
ARRANGEMENT OR AGREEMENT MADE OR OTHER ACTION TAKEN BY OR ON BEHALF OF BUYER.
ARTICLE V
COVENANTS OF SELLERS
INTENTIONALLY DELETED.
ARTICLE VI
COVENANTS OF BUYER
INTENTIONALLY DELETED.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS
OF BUYER AND SELLERS
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE OBLIGATION
OF EACH OF BUYER AND SELLERS TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY
SHALL BE SUBJECT TO THE FULFILLMENT, PRIOR TO OR AT THE EFFECTIVE TIME OF THE
TRANSACTION, OF EACH OF THE FOLLOWING CONDITIONS PRECEDENT, ANY ONE OF WHICH MAY
BE WAIVED BY SUCH ENTITY OR INDIVIDUAL:
7.01 CONSENTS AND APPROVALS. ALL APPROVALS OF, AND CONSENTS BY ALL
GOVERNMENTAL ENTITIES AND OTHER PERSONS, AND ALL PERMITS BY AND ALL FILINGS WITH
AND SUBMISSIONS TO ALL SUCH GOVERNMENTAL ENTITIES AND OTHER PERSONS AS MAY BE
REQUIRED FOR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT, SHALL HAVE BEEN OBTAINED OR MADE AND REASONABLY SATISFACTORY EVIDENCE
THEREOF SHALL HAVE BEEN RECEIVED.
7.02 CERTAIN ACTIONS, ETC. THERE SHALL NOT HAVE BEEN INSTITUTED AND BE
CONTINUING OR THREATENED AGAINST BUYER, SELLERS OR THE COMPANY OR ANY OF THEIR
RESPECTIVE DIRECTORS, MANAGERS OR OFFICERS, IF ANY, ANY ACTION, SUIT OR
PROCEEDING BY OR BEFORE ANY GOVERNMENTAL ENTITY THAT WOULD (a) RESTRAIN,
PROHIBIT OR INVALIDATE, OR RESULT IN THE PAYMENT OF SUBSTANTIAL DAMAGES IN
RESPECT OF, THE TRANSACTION OR ANY OTHER TRANSACTION CONTEMPLATED
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BY THIS AGREEMENT OR (b) IMPOSE OR CONFIRM MATERIAL LIMITATIONS ON THE
ABILITY OF BUYER EFFECTIVELY TO EXERCISE FULL RIGHTS OF OWNERSHIP OF THE
COMPANY'S ASSETS.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE OBLIGATION
OF BUYER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE SUBJECT TO
THE FULFILLMENT, PRIOR TO OR AT THE EFFECTIVE TIME OF THE TRANSACTION, OF EACH
OF THE FOLLOWING CONDITIONS PRECEDENT, ANY ONE OF WHICH MAY BE WAIVED BY BUYER:
8.01 ACCURACY OF REPRESENTATIONS AND WARRANTIES. THE REPRESENTATIONS
AND WARRANTIES OF SELLERS SET FORTH IN ARTICLE III SHALL BE TRUE AND CORRECT IN
ALL MATERIAL RESPECTS AS OF THE DATE OF THIS AGREEMENT AND AS OF THE EFFECTIVE
TIME OF THE SALES TRANSACTION WITH THE SAME EFFECT AS THOUGH SUCH
REPRESENTATIONS AND WARRANTIES HAD BEEN MADE AT AND AS OF THE EFFECTIVE TIME OF
THE SALES TRANSACTION EXCEPT FOR SUCH CHANGES WITH RESPECT THERETO WHICH ARE
CONTEMPLATED BY THIS AGREEMENT OR THE PASSAGE OF TIME.
8.02 PERFORMANCE OF COVENANTS, AGREEMENTS AND CONDITIONS. SELLERS AND
THE COMPANY SHALL HAVE DULY PERFORMED, COMPLIED WITH AND SATISFIED IN ALL
MATERIAL RESPECTS ALL COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED BY THIS
AGREEMENT TO BE PERFORMED, COMPLIED WITH OR SATISFIED BY THEM AT OR PRIOR TO THE
EFFECTIVE TIME OF THE TRANSACTION.
8.03 CLOSING CERTIFICATES. BUYER SHALL HAVE RECEIVED (a) A CERTIFICATE,
DATED THE DATE OF THE EFFECTIVE TIME OF THE TRANSACTION AND SIGNED BY SELLERS,
TO THE EFFECT SET FORTH IN SECTIONS 8.01 AND 8.02 AND (b) SUCH OTHER
CERTIFICATES, INSTRUMENTS AND DOCUMENTS AS SHALL BE REASONABLY REQUESTED BY
BUYER FOR THE PURPOSE OF VERIFYING THE ACCURACY OF SUCH REPRESENTATIONS AND
WARRANTIES AND THE PERFORMANCE AND SATISFACTION OF SUCH COVENANTS AND
CONDITIONS.
8.04 NON-COMPETE, EMPLOYMENT AND OTHER AGREEMENTS. AT OR PRIOR TO THE
EFFECTIVE TIME OF THE TRANSACTION, SELLERS SHALL HAVE ENTERED INTO A NON-COMPETE
AGREEMENT WITH BUYER SUBSTANTIALLY IN THE FORM OF EXHIBIT D HERETO AND XXXXX
XXXXXXX XXXXXXXXX SHALL HAVE ENTERED INTO AN EMPLOYMENT AGREEMENT WITH BUYER
SUBSTANTIALLY IN THE FORM OF EXHIBIT E TO THIS AGREEMENT
8.05 LEGAL OPINION. BUYER SHALL HAVE RECEIVED FROM COUNSEL TO SELLERS,
AN OPINION, DATED THE CLOSING DATE, IN FORM AND SUBSTANCE SATISFACTORY TO BUYER
AND ITS COUNSEL SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT F.
8.06 CONSENTS. ALL CONSENTS, APPROVALS AND WAIVERS FROM GOVERNMENTAL
ENTITIES AND OTHER PERSONS NECESSARY TO PERMIT SELLERS TO TRANSFER THE UNITS TO
BUYER AS CONTEMPLATED BY THIS AGREEMENT SHALL HAVE BEEN OBTAINED, INCLUDING THE
WRITTEN CONSENT OF
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THE LESSOR IN THE XXXXX XXXXX LEASE TO BUYER'S ASSUMPTION OF THE OBLIGATIONS
SET FORTH THEREIN.
8.07 DELIVERY OF ASSIGNMENTS. SELLERS SHALL HAVE EXECUTED, ACKNOWLEDGED
(IF APPROPRIATE) AND DELIVERED TO BUYER ALL ASSIGNMENTS AND SUCH OTHER
INSTRUMENTS OF SALE, TRANSFER, CONVEYANCE, AND ASSIGNMENT AS BUYER AND ITS
COUNSEL MAY REQUEST.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLERS
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE OBLIGATIONS
OF SELLERS TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREUNDER SHALL BE
SUBJECT TO THE FULFILLMENT, PRIOR TO OR AT THE EFFECTIVE TIME OF THE
TRANSACTION, OF EACH OF THE FOLLOWING CONDITIONS PRECEDENT, ANY ONE OF WHICH MAY
BE WAIVED BY SELLERS.
9.01 ACCURACY OF REPRESENTATIONS AND WARRANTIES. THE REPRESENTATIONS
AND WARRANTIES OF BUYER SET FORTH IN ARTICLE IV SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS AS OF THE DATE OF THIS AGREEMENT AND AS OF THE EFFECTIVE TIME
OF THE TRANSACTION WITH THE SAME EFFECT AS THOUGH SUCH REPRESENTATIONS AND
WARRANTIES HAD BEEN MADE AT AND AS OF THE EFFECTIVE TIME OF THE TRANSACTION
EXCEPT FOR SUCH CHANGES WITH RESPECT THERETO WHICH ARE CONTEMPLATED BY THIS
AGREEMENT OR THE PASSAGE OF TIME.
9.02 PERFORMANCE OF COVENANTS, AGREEMENTS AND CONDITIONS. BUYER SHALL
HAVE DULY PERFORMED, COMPLIED WITH AND SATISFIED ALL COVENANTS, AGREEMENTS AND
CONDITIONS REQUIRED BY THIS AGREEMENT TO BE PERFORMED, COMPLIED WITH OR
SATISFIED BY IT, AT OR PRIOR TO THE EFFECTIVE TIME OF THE TRANSACTION.
9.03 OFFICERS' CERTIFICATES, ETC. SELLERS SHALL HAVE RECEIVED (a)
CERTIFICATES, DATED THE DATE OF THE EFFECTIVE TIME OF THE TRANSACTION AND SIGNED
BY AN AUTHORIZED REPRESENTATIVE OF BUYER, TO THE EFFECT SET FORTH IN SECTIONS
9.01 AND 9.02 AND (b) SUCH OTHER CERTIFICATES, INSTRUMENTS AND DOCUMENTS AS
SHALL BE REASONABLY REQUESTED BY SELLERS FOR THE PURPOSE OF VERIFYING THE
ACCURACY OF SUCH REPRESENTATIONS AND WARRANTIES AND THE PERFORMANCE AND
SATISFACTION OF SUCH COVENANTS AND CONDITIONS.
9.04 LEASE OF REAL ESTATE. BUYER SHALL HAVE ENTERED INTO A LEASE
AGREEMENT EFFECTIVE AS OF THE DATE OF CLOSING BETWEEN BUYER, AS LESSEE, AND
XXXXX XXXXXXX XXXXXXXXX, AS LESSOR, WITH RESPECT TO THE LEASE OF REAL ESTATE
(BUILDINGS AND LAND) OWNED BY LESSOR AND LOCATED AT XXXXX XXXXX, KENTUCKY IN THE
FORM OF EXHIBIT C HERETO.
ARTICLE X
TERMINATION AND WAIVER
INTENTIONALLY DELETED.
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ARTICLE XI
OTHER AGREEMENTS; SURVIVAL
OF REPRESENTATIONS AND WARRANTIES
11.01 CONFIDENTIALITY. EXCEPT AS MAY BE REQUIRED TO COMPLY WITH
APPLICABLE LAW AND REGULATIONS OR TO OBTAIN REQUIRED REGULATORY APPROVALS TO
CONSUMMATE THIS TRANSACTION, WHETHER STATE, FEDERAL OR FOREIGN, AND EXCEPT AS
REQUIRED TO OBTAIN OR COMPLY WITH EXPRESS OBLIGATIONS UNDER THIS AGREEMENT, EACH
OF THE PARTIES HERETO WILL USE ITS BEST EFFORTS TO KEEP CONFIDENTIAL ANY AND ALL
INFORMATION RELATING TO THIS TRANSACTION AND TO ONE ANOTHER AND WILL INSTRUCT
ITS MANAGERS, OFFICERS, EMPLOYEES AND OTHER REPRESENTATIVES HAVING ACCESS TO
SUCH INFORMATION OF SUCH OBLIGATION OF CONFIDENTIALITY. IN THE EVENT THE
TRANSACTIONS CONTEMPLATED HEREIN ARE NOT CONSUMMATED, EACH OF THE PARTIES HERETO
SHALL RETURN ALL DOCUMENTS, INCLUDING ANY COPIES THEREOF, TO THE PARTY WHICH
PROVIDED THE SAME.
11.02 PUBLIC ANNOUNCEMENTS. NONE OF THE PARTIES HERETO WILL MAKE ANY
PUBLIC ANNOUNCEMENT REGARDING THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
WITHOUT PRIOR APPROVAL OF THE OTHER, EXCEPT AS MAY OTHERWISE BE REQUIRED BY LAW
OR REGULATION.
11.03 ADDITIONAL AGREEMENTS. SUBJECT TO THIS AGREEMENT, EACH OF THE
PARTIES AGREES TO USE ITS BEST EFFORTS TO TAKE, OR CAUSE TO BE TAKEN, ALL ACTION
AND TO DO, OR CAUSE TO BE DONE, ALL THINGS NECESSARY, PROPER OR ADVISABLE UNDER
APPLICABLE LAWS AND REGULATIONS TO CONSUMMATE AND MAKE EFFECTIVE THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. IF AT ANY TIME AFTER THE EFFECTIVE
TIME OF THE TRANSACTION ANY FURTHER ACTION IS NECESSARY OR DESIRABLE TO CARRY
OUT THE PURPOSES OF THIS AGREEMENT, EACH INDIVIDUAL WHO IS A PARTY TO THIS
AGREEMENT AND THE PROPER OFFICERS AND DIRECTORS OF EACH CORPORATION THAT IS A
PARTY TO THIS AGREEMENT WILL TAKE ALL SUCH NECESSARY ACTION.
11.04 FORWARDING PAYMENTS AND PROPERTY. If any party receives any
payments or property after the Closing to which any of the other parties hereto
are entitled under the terms of this Agreement, the recipient shall promptly
forward the same to the party entitled thereto.
11.05 AVAILABLE REMEDIES. EACH PARTY EXPRESSLY AGREES THAT, CONSISTENT
WITH ITS INTENTION AND AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT
APPLICABLE TO HIM OR IT AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY,
SUBJECT ONLY TO THE PERFORMANCE OR 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 CLOSING PURSUANT TO SECTION 2.01.
11.06 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
(a) BY SELLERS. Sellers, jointly and severally, agree to indemnify,
defend and hold Buyer and its Affiliates harmless from and against any and all
losses, liabilities, claims, demands, damages, costs and expenses (including
reasonable attorneys' fees and disbursements) of every
-xviii-
kind, nature and description (collectively, "Claims") sustained by Buyer or
any of its Affiliates based upon, arising out of or otherwise in respect of
(i) the inaccuracy of any representation or warranty of Sellers contained in
this Agreement or in any certificate, agreement, document or instrument
delivered pursuant to this Agreement, or (ii) the breach of any covenant or
agreement, of Sellers contained in this Agreement or in any certificate,
document or instrument delivered pursuant to this Agreement (other than the
non-competition agreement, employment agreements and lease agreement since
only the persons which are parties thereto shall have any liability,
commitment or obligations thereunder) except, that Sellers shall have no
liability pursuant to Section 11.06(a)(i) for the first $15,000 of aggregate
Claims (the "Buyer Basket") and the total amount of such liability shall not
exceed an amount equal to the Purchase Price.
(b) BY BUYER. Buyer agrees to indemnify, defend and hold Sellers
harmless from and against any and all Claims sustained by Sellers based upon,
arising out of or otherwise in respect of (i) the inaccuracy of any
representation or warranty of Buyer contained in this Agreement or in any
certificate, agreement, document or instrument delivered pursuant to this
Agreement, or (ii) the breach of any covenant or agreement, of Buyer contained
in this Agreement or in any certificate, agreement, document or instrument
delivered pursuant to this Agreement, or (iii) the ownership, management or use
of the Company Assets after the Closing, unless and to the extent that such
Claim arises solely from any action of Sellers after the Closing; provided,
however, that Buyer shall have no liability pursuant to Section 11.06(b)(i) for
the first $15,000 of aggregate Claims (the "Sellers Basket")") and the total
amount of such liability shall not exceed an amount equal to the Purchase Price.
(c) NOTIFICATION AND DEFENSE OF CLAIMS. Any party seeking information
or reimbursement for Claims hereunder (the "Indemnified Party") shall as
promptly as practicable notify the party from which such indemnification is
sought (the "Indemnifying Party") upon which the Indemnified Party intends to
base a claim for indemnification or reimbursement hereunder; provided, however,
that the failure of an Indemnified Party so to notify the Indemnifying Party
shall not relieve the Indemnifying Party from any liability under this Agreement
to the Indemnified Party with respect to such Claim except to the extent the
Indemnifying Party is actually prejudiced or damaged by the failure to receive
timely notice. In the event of any claims for indemnification or reimbursement,
the Indemnifying Party, at its option, may assume (with legal counsel reasonably
acceptable to the Indemnified Party) the defense of any claim, demand, lawsuit
or other Proceeding brought against the Indemnified Party, which claim, demand,
lawsuit or other Proceeding may give rise to the indemnity or reimbursement
obligation of the Indemnifying Party hereunder, and may assert any defense of
any party; provided, however, that the Indemnified Party shall have the right at
its own expense to participate jointly with the Indemnifying Party in the
defense of any claim, demand, lawsuit or other Proceeding in connection with
which the Indemnified Party claims indemnification or reimbursement hereunder.
Notwithstanding the right of an Indemnified Party so to participate, the
Indemnifying Party shall have the sole right to settle or otherwise dispose of
such claim, demand, lawsuit or other Proceeding on such terms as the
Indemnifying Party, in its sole discretion, shall deem appropriate with respect
to any issue involved in such claim, demand, lawsuit or other Proceeding as to
which (i) the Indemnifying Party shall have acknowledged the obligation to
indemnify the Indemnified Party hereunder and
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the settlement is solely for cash or (ii) the Indemnified Party shall have
declined so to participate and, in either case, the Indemnified Party is
provided a full and complete release of Claims.
(d) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the parties to this Agreement shall survive the Closing Date and
shall remain in full force and effect for a period of three years following the
Closing Date; provided, that (i) the representations and warranties related to
Tax matters shall survive until the applicable statute of limitations for any
potential Tax liability has expired, and (ii) representations and warranties
related to environmental claims shall survive indefinitely. The period during
which the representations and warranties shall survive shall be referred to
herein with respect to such representations and warranties as the "Survival
Period"., The Survival Period shall be extended with respect to any claim for
indemnification under Section 11.06 hereof if a written notice asserting the
claim shall have been duly given in accordance with Article XI hereof within the
Survival Period with respect to such matter. Any claim for indemnification made
during the Survival Period shall be valid and the representations and warranties
relating thereto shall remain in effect for purposes of such indemnification
notwithstanding that such claim may not be resolved within the Survival Period.
All representations, warranties and covenants and agreements made by the parties
shall not be affected by any investigation heretofore or hereafter made by and
on behalf of any of them and shall not be deemed merged into any instruments or
agreements delivered in connection with this Agreement or otherwise in
connection with the transactions contemplated hereby.
(e) EXCLUSIVE RIGHTS AND REMEDIES. The rights and remedies provided in
this Section 11.06 shall be the exclusive rights and remedies, contractual or
otherwise, of the indemnified Persons with respect to breaches of the
representations, warranties, covenants and agreements contained in this
Agreement.
11.07 ACTIONS OF THE PARTIES AFTER THE CLOSING. THE PARTIES HERETO
AGREE THAT AFTER THE CLOSING, THEY WILL TAKE THE ACTIONS DESCRIBED IN THIS
SECTION 11.07.
(a) SELLERS ACKNOWLEDGE AND AGREE THAT FROM AND AFTER THE CLOSING,
BUYER WILL BE ENTITLED TO ORIGINALS OF ALL TITLE DOCUMENTS AND COPIES OF ALL
OTHER DOCUMENTS, BOOKS, RECORDS (INCLUDING TAX RECORDS), AGREEMENTS, AND
FINANCIAL DATA OF ANY SORT RELATING TO THE BUSINESS AND COMPANY'S ASSETS.
(b) IN THE EVENT AND FOR SO LONG AS ANY PARTY ACTIVELY IS CONTESTING OR
DEFENDING AGAINST ANY ACTION, SUIT, PROCEEDING, HEARING, INVESTIGATION, CHARGE,
COMPLAINT, CLAIM, OR DEMAND IN CONNECTION WITH (i) ANY TRANSACTION CONTEMPLATED
UNDER THIS AGREEMENT OR (ii) ANY FACT, SITUATION, CIRCUMSTANCE, STATUS,
CONDITION, ACTIVITY, PRACTICE, PLAN, OCCURRENCE, EVENT, INCIDENT, ACTION,
FAILURE TO ACT, OR TRANSACTION ON OR PRIOR TO THE CLOSING DATE INVOLVING THE
BUSINESS OR THE COMPANY'S ASSETS, THE OTHER PARTY WILL TO THE EXTENT REASONABLY
PRACTICABLE COOPERATE WITH THE CONTESTING OR DEFENDING PARTY AND ITS COUNSEL IN
THE CONTEST OR DEFENSE, MAKE AVAILABLE ITS PERSONNEL, AND PROVIDE SUCH TESTIMONY
AND ACCESS TO ITS BOOKS AND RECORDS AS SHALL BE NECESSARY IN CONNECTION WITH THE
CONTEST OR DEFENSE, ALL AT THE SOLE COST AND EXPENSE OF THE CONTESTING OR
DEFENDING PARTY. HOWEVER, WITH RESPECT TO
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ANY SUCH INFORMATION AS TO WHICH THE CONTESTING OR DEFENDING PARTY MAY
REASONABLY ASSERT THAT THE DISCLOSURE PURSUANT HERETO WOULD WAIVE A
PRIVILEGE, THE PARTIES WILL USE THEIR REASONABLE EFFORTS TO DEVELOP
PROCEDURES TO MAINTAIN SUCH PRIVILEGE.
(c) SELLERS WILL NOT TAKE ANY ACTION THAT IS DESIGNED OR INTENDED TO
HAVE THE EFFECT OF DISCOURAGING ANY LESSOR, LICENSOR, CUSTOMER, SUPPLIER, OR
OTHER BUSINESS ASSOCIATE OF THE COMPANY FROM MAINTAINING THE SAME BUSINESS
RELATIONSHIPS WITH BUYER AFTER THE CLOSING AS IT MAINTAINED WITH THE COMPANY
PRIOR TO THE CLOSING. THE SELLERS WILL REFER ALL CUSTOMER INQUIRIES RELATING TO
THE BUSINESS TO BUYER FROM AND AFTER THE CLOSING.
(d) SELLERS AGREE THAT AFTER THE CLOSING DATE ANY FACTS, INFORMATION,
KNOW-HOW, PROCESSES, TRADE SECRETS, CUSTOMER LISTS OR CONFIDENTIAL MATTERS THAT
RELATE IN ANY WAY TO THE COMPANY'S ASSETS SHALL BE MAINTAINED IN CONFIDENCE AND
SHALL NOT BE DIVULGED BY SELLERS TO ANY PARTY UNLESS AND UNTIL THEY SHALL BECOME
PUBLIC KNOWLEDGE (OTHER THAN BY DISCLOSURE BY SELLERS OR THE COMPANY'S MANAGERS,
DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, IF ANY) OR AS REQUIRED BY LAW. SELLERS
FURTHER AGREE TO USE THEIR BEST EFFORTS TO ENSURE THAT NONE OF THE COMPANY'S
MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, IF ANY, DIVULGE ANY SUCH
CONFIDENTIAL INFORMATION TO A THIRD PARTY OR USE THE SAME FOR THE BENEFIT OF
SELLERS, ANY SUCH MANAGER, DIRECTOR, OFFICER, EMPLOYEE OR AGENT, IF ANY, OR ANY
OTHER THIRD PARTY, UNLESS AND UNTIL IT SHALL HAVE BECOME PUBLIC KNOWLEDGE (OTHER
THAN BY DISCLOSURE BY SELLERS OR THE COMPANY'S MANAGERS, DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS, IF ANY). BUYER SHALL HAVE THE RIGHT TO INTERVIEW THE
COMPANY'S EMPLOYEES FOR THE PURPOSE OF OBTAINING INFORMATION CONCERNING THE
BUSINESS AND SELLERS HEREBY WAIVE ANY RIGHT, CLAIM, OR CAUSE OF ACTION, EXPRESS
OR IMPLIED, WHICH SELLERS MAY HAVE AGAINST ANY OF THE COMPANY'S MANAGERS,
DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, IF ANY, BY REASON OF ANY SUCH MANAGER,
DIRECTOR, OFFICER, EMPLOYEE OR AGENT, IF ANY, DIVULGING TO BUYER AFTER THE
CLOSING DATE ANY FACTS, INFORMATION, KNOW-HOW, PROCESSES, TRADE SECRETS,
CUSTOMER LISTS OR SIMILAR CONFIDENTIAL MATTERS THAT RELATE TO THE BUSINESS OR
THE COMPANY'S ASSETS.
(e) FROM AND AFTER THE CLOSING DATE, SELLERS AGREE NOT TO USE THE NAME
"KENTUCKY ENVIRONMENTAL NETWORK" OR ANY DECEPTIVELY SIMILAR NAME OR RELATED
PROPRIETARY RIGHTS AND SHALL PROVIDE TO OR AT THE REQUEST OF BUYER ANY CONSENT,
WAIVER OR APPROVAL OF SELLERS OR PERSONS OR ENTITIES CONTROLLED BY SELLERS THAT
MAY BE REQUIRED OR ADVISABLE IN CONNECTION WITH BUYER'S USE OF SUCH NAME.
ARTICLE XII
MISCELLANEOUS
12.01 CLOSING. SUBJECT TO THE TERMS AND CONDITIONS HEREOF, THE CLOSING
OF THE TRANSACTIONS CONTEMPLATED HEREBY SHALL TAKE PLACE AT THE OFFICES OF
APOLLO OIL IN WINCHESTER, KENTUCKY, AT 9:30 AM., CENTRAL DAYLIGHT TIME, ON
SEPTEMBER 28, 2000, OR AT SUCH OTHER PLACE AND TIME AS THE PARTIES HERETO SHALL
AGREE.
-xxi-
12.02 EXPENSES. EXCEPT AS OTHERWISE PROVIDED HEREIN, EACH PARTY HERETO
WILL PAY ITS OWN COSTS AND EXPENSES INCURRED IN CONNECTION WITH THIS AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED HEREBY. SELLERS WILL PAY ALL OF THE COSTS AND
EXPENSES WHICH THE COMPANY MAY INCUR IN CONNECTION WITH THE COMPANY'S EXECUTION
OF THIS AGREEMENT AND ITS CONSUMMATION OF THE REDEMPTION TRANSACTION (AND ANY
OTHER ACTIONS IT MAY BE REQUIRED TO TAKE IN CONNECTION WITH THE CLOSING).
12.03 NOTICES. ALL NOTICES AND OTHER COMMUNICATIONS HEREUNDER SHALL BE
IN WRITING AND SHALL BE DEEMED TO HAVE BEEN GIVEN IF DELIVERED PERSONALLY OR
SENT BY TELEX, FACSIMILE TRANSMISSION, A NATIONALLY RECOGNIZED OVERNIGHT
DELIVERY SERVICE OR REGISTERED OR CERTIFIED MAIL (RETURN RECEIPT REQUESTED),
POSTAGE PREPAID, TO THE PARTIES TO THIS AGREEMENT AT THE FOLLOWING ADDRESSES OR
AT SUCH OTHER ADDRESS FOR A PARTY AS SHALL BE SPECIFIED BY LIKE NOTICE:
IF TO BUYER:
NESCO, INC.
00000 XXXX 00XX XXXXXX
XXXXX, XX 00000
ATTENTION: XXXX X. XXXXXXXXX
WITH A COPY TO:
XXXXXX & XXXXXXX, A PROFESSIONAL CORPORATION
0000 XXXXX XXXXX XXXXX
XXXXX, XXXXXXXX 00000
ATTENTION: LYNNWOOD X. XXXXX, XX.
IF TO SELLERS:
C/O KENTUCKY ENVIRONMENTAL NETWORK, LLC
X.X. Xxx 000
Xxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, CPA
WITH A COPY TO:
XXXXX XXXXXX & PARK, LLP
000 XXXX XXXX XXXXXX, XXXXX 0000
XXXXXXXXX, XXXXXXXX 00000
ATTENTION: XXXXXXX X. XXXXXXX
ALL SUCH NOTICES AND COMMUNICATIONS SHALL BE DEEMED TO HAVE BEEN
RECEIVED ON THE DATE OF DELIVERY OR ON THE THIRD BUSINESS DAY AFTER THE MAILING
THEREOF. THE PARTIES HERETO
-xxii-
MAY CHANGE THEIR RESPECTIVE ADDRESSES BY NOTICE IN WRITING GIVEN TO THE OTHER
PARTY TO THIS AGREEMENT.
12.04 TIME. TIME IS OF THE ESSENCE OF THIS AGREEMENT.
12.05 ENTIRE AGREEMENT; AMENDMENT. THIS AGREEMENT (INCLUDING THE
SCHEDULES, DOCUMENTS AND INSTRUMENTS REFERRED TO HEREIN) CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERTAKINGS, WRITTEN AND ORAL. THIS
AGREEMENT MAY ONLY BE AMENDED BY AN INSTRUMENT IN WRITING DULY EXECUTED BY
SELLERS AND BUYER AND ALL ATTEMPTED ORAL WAIVERS, NOTIFICATIONS, AND AMENDMENTS
SHALL BE INEFFECTIVE.
12.06 BINDING EFFECT; BENEFITS. THIS AGREEMENT SHALL BE BINDING UPON
AND INURE TO THE BENEFIT OF THE PARTIES TO THIS AGREEMENT AND THEIR RESPECTIVE
SUCCESSORS AND PERMITTED ASSIGNS. NOTHING EXPRESSED OR IMPLIED IN THIS AGREEMENT
IS INTENDED TO OR SHALL BE CONSTRUED TO GIVE ANY PERSON OTHER THAN THE PARTIES
TO THIS AGREEMENT OR THEIR RESPECTIVE SUCCESSORS OR PERMITTED ASSIGNS ANY LEGAL
OR EQUITABLE RIGHT, REMEDY OR CLAIM UNDER OR IN RESPECT OF THIS AGREEMENT, IT
BEING THE INTENTION OF THE PARTIES TO THIS AGREEMENT THAT THIS AGREEMENT SHALL
BE FOR THE SOLE AND EXCLUSIVE BENEFIT OF SUCH PARTIES OR SUCH SUCCESSORS OR
ASSIGNS AND FOR THE BENEFIT OF NO OTHER PERSON.
12.07 ASSIGNMENT. NEITHER THIS AGREEMENT NOR ANY RIGHT, REMEDY,
OBLIGATION OR LIABILITY ARISING HEREUNDER OR BY REASON HEREOF SHALL BE
ASSIGNABLE BY ANY PARTY TO THIS AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF
THE OTHER PARTIES.
12.08 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF OKLAHOMA APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED WITHIN THAT STATE, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAWS THEREOF. THE PARTIES HEREBY EACH (A) AGREE THAT ANY
LITIGATION, ACTION, OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE
TRANSACTIONS MAY BE INSTITUTED IN A STATE OR FEDERAL COURT IN THE CITY OF TULSA,
OKLAHOMA, (B) WAIVE ANY OBJECTION THAT SUCH PARTY MIGHT HAVE NOW OR HEREAFTER TO
SUCH LITIGATION, ACTION, OR PROCEEDING BASED UPON IMPROPER VENUE OR INCONVENIENT
FORUM AND (C) IRREVOCABLY SUBMIT TO THE JURISDICTION OF SUCH COURTS IN ANY SUCH
LITIGATION, ACTION, OR PROCEEDING.
12.09 COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL AND ALL OF WHICH
TOGETHER SHALL BE DEEMED TO BE A SINGLE AGREEMENT.
12.10 WAIVER OF TRANSFER RESTRICTIONS. SELLERS AND THE COMPANY AGREE TO
WAIVE ANY AND ALL RESTRICTIONS IN THE COMPANY'S OPERATING AGREEMENT OR OTHERWISE
THAT MIGHT APPLY TO THE TRANSFER OF THE MEMBERSHIP INTERESTS OF THE SELLERS TO
BUYER AS CONTEMPLATED BY THIS AGREEMENT.
-xxiii-
IN WITNESS WHEREOF, THE PARTIES TO THIS AGREEMENT HAVE CAUSED THIS
AGREEMENT TO BE DULY EXECUTED AS OF THE DATE FIRST WRITTEN ABOVE.
"BUYER": "SELLERS":
NESCO, INC.
BY:
---------------------------------- ---------------------------------
XXXXX X. XXXXXXX, VICE PRESIDENT & Xxxxxx Xxxxxxx
SECRETARY-TREASURER
---------------------------------
Xxxxx Xxxxxxx Xxxxxxxxx
---------------------------------
Xxxxx Xxxxx
---------------------------------
XXXX XXXXXX
"Company":
KENTUCKY ENVIRONMENTAL
NETWORK, LLC
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
-xxiv-
