Exhibit 10.2
SPLIT-OFF AGREEMENT
This Split-Off Agreement (this "Agreement"), dated as of December 20,
2002, by and between Laid Back Enterprises, Inc., an Oklahoma corporation ("Laid
Back") LBE Transition, Inc., an Oklahoma corporation ("LBE") which as of the
date of this agreement is a wholly owned subsidiary of Laid Back and Xxx
Xxxxxxxxxx and Xxxxxx Xxxx, individual shareholders of Laid Back exchanging all
or a substantial portion of their shares of Laid Back for all the shares of LBE
("Distribution Shareholders").
RECITALS
Whereas, Laid Back desires to separate its several businesses comprised
of gift design and merchandising from gift inventory liquidations, both of which
have been continuously engaged in their respective businesses for substantially
more than five years, into independent companies; and
Whereas, such separation will allow the separate companies to do
business with each other's competitors, allow management to focus on their
respective businesses and enhance access to financing by allowing banks and the
financial community to focus separately on the respective businesses; and
Whereas, Laid Back intends to split-off through a Distribution to the
Distribution Shareholders all of the outstanding capital stock of LBE in
exchange for a substantial portion of the Distribution Shareholders' shares in
Laid Back, said Distribution Shareholders having continuously held their shares
in Laid Back for substantially more than five year, thereby terminating the
parent-subsidiary relationship that has existed between the two companies; and
Whereas, such Distribution is intended to qualify as a split-off under
ss.368(d) of the Code; and
Whereas, Laid Back, LBE and the Distribution Shareholders have
determined that it is necessary and desirable to set forth certain agreements
that will govern certain matters relating to the Distribution.
Therefore, in consideration of the mutual agreements, provisions and
covenants contained in this agreement, the parties to it agree as follows:
AGREEMENT
The parties, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Article I:
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1.1 "Administrative Services Agreement" means the Administrative
Services Agreement dated the date of this agreement and entered into between
Laid Back and LBE.
1.2 "Affiliate" means the term "affiliate" as defined in Regulation
12b-2 under the Exchange Act.
1.3 "Ancillary Agreements" means the Tax Sharing Agreement, the
Administrative Services Agreement and any other agreement entered into between
the parties to this agreement on or prior to the Distribution Date, the terms of
which are to be effective after the Distribution Date.
1.4 "Code" means the Internal Revenue Code of 1986, as amended.
1.5 "Commission" means the Securities and Exchange Commission.
1.6 "Distribution" means the distribution to the Distribution
Shareholders of the shares of LBE common stock owned by Laid Back on the
Distribution Date.
1.7 "Distribution Date" means the close of business on the date
determined by the Laid Back Board as of which the Distribution shall be
effected.
1.8 "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor legislation.
1.9 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
1.10 "Form 10" means the registration statement on Form 10 filed by
Laid Back with the Commission to effect the registration of Laid Back's common
stock pursuant to the Exchange Act after the Distribution.
1.11 "Information Statement" means the information statement to be sent
to the holders of Laid Back Stock in connection with the Distribution.
1.12 "Insurance Proceeds" means those monies (i) received by an insured
from an insurance carrier, or (ii) paid by an insurance carrier on behalf of the
insured, in either case net of any applicable premium adjustments (including
reserves), retrospectively rated premium adjustments, deductibles, retentions,
or costs paid by such insured.
1.13 "IRS" means the Internal Revenue Service.
1.14 "Laid Back Board" means the board of directors of Laid Back.
1.15 "Laid Back Stock" means the common stock of Laid Back.
1.16 "LBE Common Stock" means the common stock of LBE.
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1.17 "Liabilities" means any and all debts, losses, liabilities,
claims, damages, obligations, payments, costs and expenses, absolute or
contingent, mature or not mature, liquidated or unliquidated, accrued or
unaccrued, known or unknown, whenever arising (unless otherwise specified in
this agreement), including all attorney's fees, costs and expenses relating to
them, and including, without limitation, those debts, losses, liabilities,
claims, damages, obligations, payments, costs and expenses, arising under any
law, rule, regulation, action, threatened action, order or consent decree of any
governmental entity or any award of any arbitrator of any kind, and those
arising under any contract, commitment or undertaking.
1.18 "OTC-BB" means the National Association of Securities Dealers Over
the Counter Bulletin Board quotation system.
1.19 "Record Date" means the close of business on the date to be
determined by the Laid Back Board as the record date for the Distribution.
1.20 "Tax Sharing Agreement" means the tax sharing agreement, dated the
date of this agreement, entered into between Laid Back and LBE.
ARTICLE II
THE DISTRIBUTION
2.01 The Distribution.
(a) Laid Back, LBE and the Distribution Shareholders agree
that based upon an independent third party evaluation of the value of
Laid Back, including LBE by The Xxxxxx Group, the valuation of the
respective companies is as follows:
Laid Back $ 400,071 29%
LBE $ 971,763 71
=========== ====
Total $ 1,371,834 100%
Further, the current shares issued and outstanding of Laid Back are as
follows:
Xxxxxxxxxx 2,947,289 64.72%
Hurt 292,218 6.42
Minority Shareholders 1,314,303 28.86
========= =======
Total 4,553,810 100.00%
Based upon the expert opinion by the Xxxxxx Group that a minority
discount of 25% is appropriate to apply to the valuation for the
interests held by the Shareholders of Laid Back who are not the
Distribution Shareholders and who will retain their shares in Laid
Back, the parties agree that the following shares of the Distribution
Shareholders shall be exchanged for all of the LBE Common Stock shares
used for the Distribution:
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Date: June 10, 2004
Shareholder Distribution Shares Retained Shares
----------- ------------------- ---------------
Minority Shares -0- 1,314,303
Xxxxxxxxxx 2,490,875 456,414
Hurt 292,218 -0-
(b) On the Distribution Date, Laid Back will deliver to the
Distribution Shareholders stock certificates, endorsed by Laid Back in
blank, representing, in the aggregate, all of the issued and
outstanding shares of LBE Common Stock in exchange for the delivery of
the certificates representing the Distribution shares set forth in (a)
above by the Distribution Shareholders, endorsed in blank. The shares
of LBE Common Stock shall be reissued to the Distribution Shareholders
in proportion to their respective Distribution shares in exchange for
the delivery of their Laid Back shares. All of the shares of LBE so
distributed shall be fully paid, nonassessable and free of preemptive
rights.
2.02 Cooperation Prior to the Distribution.
(a) Laid Back and LBE shall prepare, and Laid Back shall
promptly mail to the holders of Laid Back stock as of the Record Date,
the Information Statement, which shall set forth appropriate
disclosures concerning LBE, the Distribution and other matters.
(b) Laid Back and LBE shall take all such action as may be
necessary or appropriate under the securities or blue sky laws of
states or other political subdivisions of the United States, in
connection with the transactions contemplated by this agreement and the
Ancillary Agreements.
(c) Laid Back with LBE's cooperation shall prepare and Laid
Back shall file following the Distribution an application to authorize
the Laid Back common stock for quotation on the OTC-BB.
2.03 Conditions to Distribution. This agreement and the consummation of
each of the transactions provided for in this agreement shall be subject to
approval of the Laid Back Board and a majority vote of the Laid Back Stock in
favor of the Distribution. The Laid Back Board shall in its discretion establish
the Record Date and the Distribution Date and all appropriate procedures in
connection with the Distribution, but in no event shall the Distribution Date
occur prior to such time as all of the following have occurred: (i) the Laid
Back Board has formally approved the Distribution; (ii) the approval of the
proposed transaction by a majority of the Laid Back shareholders; and (iii) the
transactions contemplated by Article III shall have been consummated in all
material respects; provided that the satisfaction of such conditions shall not
create any obligation on the part of Laid Back or any other party to this
agreement to effect the Distribution or in any way limit Laid Back's power of
termination set forth in Section 6.08 or alter the consequences of any such
termination from those specified in such Section.
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2.04 Certain Post-Distribution Transactions.
(a) LBE shall comply with each representation and statement
made, or to be made, to any taxing authority in connection with any
ruling obtained, or to be obtained, by Laid Back and/or LBE, from any
taxing authority with respect to the transactions contemplated by this
agreement.
(b) Laid Back shall from time to time after the Distribution
Date, and without additional consideration, execute such deeds,
assignments and other instruments of conveyance as may be necessary or
advisable to transfer or confirm legal, record ownership of assets
(both real and personal) used by LBE in its businesses to or in LBE.
(c) Laid Back and LBE may from time to time find it desirable
to combine and/or coordinate the purchase of various types of insurance
from third party insurers. Should Laid Back and LBE desire to combine
and/or coordinate the purchase of insurance, it shall be done in such a
way that is beneficial to both parties and would require each party to
hold each other harmless from any and all Liabilities of whatever type
that might arise out of the respective party's operations.
(d) Laid Back with LBE's cooperation shall also prepare, and
Laid Back shall file with the Commission, the Form 10, which shall
include such information as is necessary to cause the Form 10 to become
effective under the Exchange Act as soon as practicable.
ARTICLE III
TRANSACTIONS RELATING TO THE DISTRIBUTION
3.01 Allocation of Liabilities between Laid Back and LBE.
(a) As of the Distribution Date, or as soon as possible after,
LBE will become the obligor or guarantor, as applicable, of the
Liabilities associated with the businesses being conducted by LBE and
identified in Exhibit A to this agreement, replacing Laid Back in such
capacity. LBE shall assume liability for all of the Liabilities
identified in Exhibit A, and indemnifies Laid Back and holds Laid Back
harmless from all Liabilities resulting from them pursuant to the
provisions of Article IV.
(b) All intercompany account balances between Laid Back and
LBE for transactions occurring prior to the Distribution Date shall be
settled by a payment in cash on or shortly after the Distribution Date.
3.02 Satisfaction of Any Claims Against Laid Back. LBE agrees that,
except as provided in the tax sharing agreement, the making of the
reconciliation and assumptions described in Section 3.01 by the parties shall be
in complete satisfaction of any claim which a party might otherwise have against
the other as parent or shareholder by reason of dividends or tax benefits paid
or made available between them at any time prior to the Distribution.
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3.03 Ancillary Agreements. On or prior to the date of this
agreement, Laid Back and LBE shall execute and deliver each Ancillary Agreement
to which it is a party.
3.04 Employee Benefit Plans.
(a) Prior to the date hereof, Laid Back established its 401(k)
Plan to provide benefits to current, former and future employees (and
their dependents and beneficiaries) of Laid Back and any Laid Back
subsidiaries (collectively, the "Laid Back beneficiaries"), including
to the current, former and future employees (and their dependents and
beneficiaries) of LBE (collectively, the "LBE beneficiaries"). Laid
Back will, prior to the Distribution Date, transfer to LBE and LBE
shall assume responsibility for the 401(k) Plan, provided that LBE
shall have no responsibility for benefits under such plan for Laid Back
employees who do not become LBE employees on and after the Distribution
Date.
(b) The Laid Back 401(k) Plan contains funds attributable to
certain individuals who will become employees of LBE. On the date which
follows by at least 30 days the filings of IRS Forms 5310 by the Laid
Back 401(k) Plan, Laid Back shall cause the trust established under the
Laid Back 401 (k) Plan (the "plan trust") to divide the assets of the
Laid Back 401(k) Plan in the same ratio that the projected benefit
obligation for LBE employees bears to the total projected benefits
obligations for all participants in the Laid Back 401(k) Plan, and as
so divided, to transfer such assets attributable to LBE employees to a
401(k) plan to be established for LBE. Such assets shall consist of
cash, stocks and bonds.
(c) LBE shall retain or assume, as the case may be, all
obligations to all LBE beneficiaries under the 401(k) Plan
participants, whether arising before or after the Distribution Date,
and shall indemnify and hold Laid Back harmless against any and all
such Liabilities. Expenses incurred in consummating the transactions
and transfers described in this Section 3.04 shall be borne ratably by
Laid Back and LBE, based upon the number of their respective employees.
(d) Laid Back and LBE shall, in connection with the
transactions and transfers described in this Section 3.04 and at LBE's
expense, cooperate in making any and all appropriate filings required
under the Code or ERISA, and the regulations under them, and any
applicable securities laws, and take all such action as may be
necessary to cause such transactions and transfers to take place on or
as soon as practicable after the Distribution Date.
(e) As of the Distribution Date, LBE shall assume or retain,
as the case may be, sole responsibility for all Liabilities and
obligations, if any, of Laid Back with respect to claims made by LBE
employees relating to any employer liability or obligation not
otherwise provided for in this agreement, as well as with respect to
any employee benefit or payment to a LBE employee not otherwise
provided for in this agreement. To the extent not otherwise provided in
this agreement, Laid Back and LBE shall take such action as is
necessary to effect an adjustment to the books of Laid Back and of LBE
so that, as of the Distribution Date, the prepaid expense balances and
accrued employee liabilities with respect to any employee liability or
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obligation assumed or retained as of the Distribution Date by LBE is
appropriately reflected on its respective balance sheets as of the
Distribution Date. To the extent that Laid Back pay for any claim,
expense, Liability or obligation in respect of a LBE employee not
otherwise provided for in this agreement, LBE shall reimburse Laid Back
as of the Distribution Date, to the extent not previously reimbursed.
3.05 The LBE Board. LBE and Laid Back shall take all actions which may
be required to elect or otherwise appoint, on or prior to the Distribution Date,
the following persons as directors of LBE:
Xxx Xxxxxxxxxx
Xxxxxx Xxxx
3.06 LBE Certificate and Bylaws. Prior to the Distribution Date, (a)
the board of directors of LBE shall (1) approve the Certificate of Incorporation
of LBE and all amendments to it, substantially in the form of Exhibit A to the
Information Statement, to be in effect at the Distribution Date and shall file
the same with the Secretary of State of the State of Oklahoma and (2) adopt the
bylaws of LBE substantially in the form of Exhibit B to the Information
Statement, to be in effect at the Distribution Date, and (b) Laid Back, as sole
shareholder of LBE, shall approve such Certificate of Incorporation and all
amendments to it.
3.07 Laid Back Name Change. On the Distribution Date, Laid Back shall
amend its Certificate of Incorporation to change the name to Gift Liquidators,
Inc.
3.08 Stock Transfer Agent. Laid Back currently acts as transfer agent
and registrar for the common stock of Laid Back. Effective as of the
Distribution Date, a new independent transafer agent will assume the
responsibility of acting as transfer agent and registrar for the common stock of
Laid Back (to be renamed Gift Liquidators, Inc. after the Distribution Date)
Laid Back shall comply with all applicable laws, rules and regulations with
regard to performing those functions. LBE shall assist Laid Back until such time
as the transfer agent has been appointed.
ARTICLE IV
INDEMNIFICATION
4.01 Indemnification by Laid Back. Except as otherwise set forth in the
tax sharing agreement, Laid Back shall indemnify, defend and hold harmless LBE
and its respective directors, officers and employees and each of the heirs,
executors, administrators, personal representatives, successors and assigns of
any of the foregoing (the "LBE indemnitees") from and against any and all
Liabilities of the LBE indemnitees arising out of or due to the failure or
alleged failure of Laid Back or any of its Affiliates to pay, perform or
otherwise discharge in due course any item set forth in this Agreement.
4.02 Indemnification by LBE. Except as otherwise set forth in the tax
sharing agreement, LBE shall indemnify, defend and hold harmless Laid Back and
its respective directors, officers and employees and each of the heirs,
executors, administrators, personal representatives, successors and assigns of
any of the foregoing (the "Laid Back indemnitees") from and against any and all
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Liabilities of the Laid Back indemnitees arising out of or due to the failure or
alleged failure of LBE or any of its Affiliates to pay, perform or otherwise
discharge in due course any item set forth in this Agreement.
4.03 Limitations on Indemnification Obligations. The amount which any
party (an "indemnifying party") is or may be required to pay to any other party
(an "indemnitee") pursuant to Section 4.01 or Section 4.02 shall be reduced
(including, without limitation, retroactively) by any Insurance Proceeds or
other amounts actually recovered by or on behalf of such indemnitee and actual
cash reserves held by or for the benefit of such indemnitee, in reduction of the
related liability. If an indemnitee shall have received the payment required by
this agreement from an indemnifying party in respect of any liability and shall
subsequently actually receive Insurance Proceeds or other amounts in respect of
such liability, then such indemnitee shall pay to such indemnifying party a sum
equal to the amount of such Insurance Proceeds or other amounts actually
received (up to but not in excess of the amount of any indemnity payment made
under this Agreement). An insurer who would otherwise be obligated to pay any
claim shall not be relieved of the responsibility with respect to it, or, solely
by virtue of the indemnification provisions of this Agreement, have any
subrogation rights with respect to it, it being expressly understood and agreed
that no insurer or any other third party shall be entitled to a "windfall"
(i.e., a benefit they would not be entitled to receive in the absence of the
indemnification provisions appearing in this agreement) by virtue of the
indemnification provisions of this Agreement.
4.04 Procedure for Indemnification.
(a) If an indemnitee shall receive notice or otherwise learn
of the assertion by a person (including, without limitation, any
governmental entity) who is not a party to this agreement or to any of
the Ancillary Agreements of any claim or of the commencement by any
such person of any action (a "third party claim") with respect to which
an indemnifying party may be obligated to provide indemnification
pursuant to this agreement, such indemnitee shall give such
indemnifying party written notice of it promptly after becoming aware
of such third party claim; the failure of any indemnitee to give notice
as provided in this Section 4.04 shall not relieve the related
indemnifying party of its obligations under this Article IV, except to
the extent that such indemnifying party is prejudiced by such failure
to give notice. Such notice shall describe the third party claim in
reasonable detail and, if ascertainable, shall indicate the amount
(estimated if necessary) of the liability that has been or may be
sustained by such indemnitee.
(b) An indemnifying party may elect to defend or to seek to
settle or compromise, at such indemnifying party's own expense and by
such indemnifying party's own counsel, any third party claim. Within 30
days of the receipt of notice from an Indemnitee in accordance with
Section 4.04(a) (or sooner, if the nature of such third party claim
requires it), the indemnifying party shall notify the related
indemnitee if the indemnifying party elects not to defend or to seek to
settle or compromise such third party claim, which election may be made
only in the event of a good faith assertion by the indemnifying party
that a claim was inappropriately tendered under Section 4.01 or 4.02.
Unless an indemnifying party elects not to assume the defense of or to
seek to settle or compromise a third party claim, such indemnifying
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party shall not be liable to such indemnitee under this article IV for
any legal or other expenses subsequently incurred by such Indemnitee in
connection with the defense of it; provided that if the defendants in
any such claim include both the indemnifying party and one or more
indemnitees, and in any indemnitee's reasonable judgment a conflict of
interest between one or more of such indemnitees and such indemnifying
party exists in respect of such claim, such indemnitees shall have the
right to employ separate counsel to represent such indemnitees and in
that event the reasonable fees and expenses of such separate counsel
(but not more than one separate counsel reasonably satisfactory to the
indemnifying party) shall be paid by such indemnifying party; and
provided further that the indemnifying party shall not be entitled to
settle such action or claim on behalf of the indemnitee without the
prior written consent of the indemnitee, which consent shall not
unreasonably be withheld. For the purposes of this agreement, such
consent shall be deemed to be reasonably withheld only if such
settlement would, in addition to the payment of money, impose an
unreasonable and material burden on the indemnitee, including without
limitation a consent judgment or injunction. If an indemnifying party
elects not to defend, or elects not to seek to settle or compromise, a
third party claim, such indemnitee may defend or seek to compromise or
settle such third party claim.
(c) If an indemnifying party chooses to defend or to seek to
compromise or settle any third party claim, the related indemnitee, at
its own expense, shall make available to such indemnifying party any
personnel or any books, records or other documents within its control
or which it otherwise has the ability to make available that are
necessary or appropriate for such defense, settlement or compromise,
and shall otherwise cooperate in the defense, settlement or compromise
of such third party claims.
(d) Notwithstanding anything else in this Section 4.04 to the
contrary, neither an indemnifying party nor an indemnitee shall settle
or compromise any third party claim unless such settlement or
compromise contemplates as an unconditional term of it the giving by
such claimant or plaintiff to the indemnitee or the indemnifying party,
respectively, of a written release from all liability with respect to
such third party claim.
(e) Any claim on account of a liability which does not result
from a third party claim shall be asserted by written notice given by
the indemnitee to the related indemnifying party. Such indemnifying
party shall have a period of 30 days after the receipt of such notice
within which to respond in writing to it. If such indemnifying party
does not respond within such 30 day period, such indemnifying party
shall be deemed to have rejected responsibility to make payment. If
such indemnifying party does respond in writing within such 30 day
period and rejects such claim in whole or in part, or in the event a
claim is deemed to have been rejected, such indemnitee shall be free to
pursue such remedies as may be available to such party under applicable
law.
(f) In addition to any adjustments required pursuant to
Section 4.03, if the amount of any liability shall, at any time
subsequent to the payment required by this agreement, be reduced by
recovery, settlement or otherwise, the amount of such reduction,
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less any expenses incurred in connection with them, shall promptly be
repaid by the indemnitee to the indemnifying party.
(g) Upon the written demand of an indemnitee, an indemnifying
party shall reimburse or advance funds to such indemnitee for all
Liabilities reasonably incurred by it in connection with investigating
or defending any third party claim in advance of its final disposition;
provided that such reimbursement need be made only upon delivery to the
indemnifying party of an undertaking by such indemnitee to repay all
amounts so reimbursed or advanced if it shall ultimately be determined
that such Indemnitee is not entitled to indemnification under this
Article IV or otherwise.
(h) In the event of payment by an indemnifying party to any
indemnitee in connection with any third party claim, such indemnifying
party shall be subrogated to and shall stand in the place of such
indemnitee as to any events or circumstances in respect of which such
indemnitee may have any right or claim relating to such third party
claim against any claimant or plaintiff asserting such third party
claim or against any other person. Such indemnitee shall cooperate with
such indemnifying party in a reasonable manner, and at the cost and
expense of such indemnifying party, in prosecuting, in its name or in
the name of the indemnitee, any subrogated right or claim.
4.05 Remedies Cumulative. The remedies provided in this Article IV
shall be cumulative and shall not preclude assertion by any indemnitee of any
other rights or the seeking of any and all other remedies against any
indemnifying party; provided that all remedies sought or asserted by an
Indemnitee against an indemnifying party with respect to a liability shall be
limited by and be subject to the provisions of this Article IV.
4.06 Survival of Indemnities. The obligations of each of (i) Laid Back
on the one hand, and (ii) LBE, on the other hand, under this Article IV, shall
survive the sale or other transfer by it of any assets or businesses or the
assignment by it of any Liabilities, with respect to any loss of the other
related to such assets, businesses or Liabilities.
ARTICLE V
ACCESS TO INFORMATION
5.01 Access to Information. From and after the Distribution Date, Laid
Back shall afford to LBE and its authorized accountants, counsel and other
designated representatives reasonable access (including using reasonable efforts
to give access to persons or firms possessing information) and duplicating
rights during normal business hours to all records, books, contracts,
instruments, computer data and other data and information (collectively,
"information") within Laid Back's possession or under Laid Back's direction or
control relating to LBE or Laid Back insofar as such access is reasonably
required by LBE. Similarly, LBE shall afford to Laid Back and its authorized
accountants, counsel and other designated representatives reasonable access
(including using reasonable efforts to give access to persons or firms
possessing information) and duplicating rights during normal business hours to
information within LBE's possession or under LBE's direction or control relating
to Laid Back or LBE insofar as such access is reasonably required by Laid Back.
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Information may be requested under this article V for, without limitation,
audit, accounting, claims, litigation and tax purposes, as well as for purposes
of fulfilling disclosure and reporting obligations and for performing this
agreement the Ancillary Agreements and the transactions contemplated hereby and
thereby. Except as otherwise provided herein, Laid Back and LBE shall retain and
keep confidential all information relating to the other party. The
confidentiality obligation contained in this agreement shall not apply to
information which (i) is not confidential at the time it is obtained by the
party, (ii) becomes available to the party, through no fault of that party's
employees, agents, successors or assigns under this agreement, from a third
party source having no requirement of confidentiality to the other party to this
agreement, (iii) falls into the public domain through no fault of the party, or
(iv) is required to be disclosed by law or to a governmental agency.
5.02 Retention of Records. Except as otherwise agreed to in writing,
each of Laid Back and LBE shall retain for a period of at least seven years, all
information relating to the other; provided that after the expiration of such
period, such information shall not be destroyed or otherwise disposed of at any
time, except as otherwise provided in the Administrative Services Agreement.
5.03 Production of Witnesses. At all times from and after the
Distribution Date, each of Laid Back and LBE shall use reasonable efforts to
make available to the other upon written request, its officers, directors,
employees and agents as witnesses to the extent that such persons may reasonably
be required in connection with any legal, administrative or other proceedings in
which the requesting party may from time to time be involved.
ARTICLE VI
MISCELLANEOUS
6.01 Complete Agreement; Construction. This agreement, including any
schedules and exhibits and the Ancillary Agreements and other agreements and
documents referred to herein, shall constitute the entire agreement between the
parties with respect to the subject matter hereof and shall supersede all
previous negotiations, commitments and writings with respect to such subject
matter. Notwithstanding any other provisions in this agreement to the contrary,
in the event and to the extent that there shall be a conflict between the
provisions of this agreement and the provisions of the tax sharing agreement or
the Administrative Services Agreement, the provisions of the tax sharing
agreement or the Administrative Services Agreement shall control.
6.02 Survival of Agreements. Except as otherwise contemplated by this
agreement, all covenants and agreements of the parties contained in this
agreement shall survive the Distribution Date.
6.03 Expenses. Except as otherwise set forth in this agreement or any
Ancillary Agreement, all costs and expenses arising prior to the Distribution
Date (whether or not then payable) in connection with the consummation of the
transactions contemplated by this agreement other than (i) the fees and expenses
of any counsel, (ii) costs incurred in connection with any financing
arrangements entered into by LBE, and (iii) fees of the National Association of
Securities Dealers, Inc. incurred with respect to the authorization for
quotation of the Laid Back corporate stock, all of which shall be paid by Laid
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Back to the extent that appropriate documentation concerning such costs and
expenses shall be provided to Laid Back. Such costs and expenses shall include,
without limitation, printing costs and other expenses related to the
preparation, printing and Distribution of the information statement.
6.04 Governing Law. This agreement shall be governed by and construed
in accordance with the laws of the State of Oklahoma, without regard to the
principles of conflicts of laws of it.
6.05 Notices. All notices and other communications hereunder shall be
in writing and shall be delivered by hand or mailed by registered or certified
mail (return receipt requested) to the parties at the following addresses (or at
such other addresses for a party as shall be specified by like notice) and shall
be deemed given on the date on which such notice is received:
To Laid Back: 0000 Xxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxx
To LBE: 0000 Xxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxxxx
6.06 Amendments. This agreement may not be modified or amended
except by an agreement in writing signed by both parties hereto.
6.07 Successors and Assigns. This agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns.
6.08 Termination. This agreement may be terminated and the Distribution
abandoned at any time prior to the Distribution Date by and in the sole
discretion of the Laid Back Board without the approval of LBE, or of Laid Back
shareholders. In the event of such termination, no party shall have any
liability of any kind to any other party except that expenses incurred in
connection with the transactions contemplated hereby shall be paid as provided
in Section 6.04.
6.09 No Third-Party Beneficiaries. Except for the provisions of Article
IV relating to indemnitees, this agreement is solely for the benefit of the
parties to it and their respective Affiliates and shall not be deemed to confer
upon third parties any remedy, claim, reimbursement, claim of action or other
right in excess of those existing without reference to this agreement.
6.10 Titles and Headings. Titles and headings to sections in this
agreement are inserted for the convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
agreement.
6.12 Legal Enforceability. Any provision of this agreement which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
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Date: June 10, 2004
it. Any such prohibition or unenforceability shall not invalidate or render
unenforceable such provision or remedies otherwise available to any party to
this agreement. Without prejudice to any rights or remedies otherwise available
to any party to this agreement, each party to this agreement acknowledges that
damages would be inadequate remedy for any breach of the provisions of this
agreement and agrees that the obligations of the parties under this agreement
shall be specifically enforceable.
In witness, the parties have caused this agreement to be duly executed
as of the day and year first written above.
"Laid Back" Laid Back Enterprises, Inc.,
an Oklahoma corporation
By: /s/ Xxxxxx Xxxx
---------------------------------
Xxxxxx Xxxx,
Executive Vice President
"LBE" LBE Transition, Inc., an Oklahoma
corporation
By: /s/ Xxx Xxxxxxxxxx
---------------------------------
Xxx Xxxxxxxxxx, President
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Split-Off Agreement Page 13 of 13
Date: June 10, 2004
