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EXHIBIT 10.1
STOCK ACQUISITION AGREEMENT
dated as of
March 25, 1992
by and among
E-Z SERVE CORPORATION
and
XXXXX XXXX XXXXXX,
APRIL XXXXXXX XXXXXX TRUST and
XXXXX XXXXXX XXXXXX TRUST
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TABLE OF CONTENTS
Page
ARTICLE 1
The Acquisition
1.1 The Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 The Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 2
Representations and Warranties by
the Shareholders
2.1 Organization and Existence of Dart; Capitalization . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Organization and Existence of TPI; Capitalization . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Organization and Existence of Titan; Capitalization . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Qualification of the Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.5 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.6 No Adverse Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.7 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.8 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.9 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.10 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.11 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.12 Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.13 Authority and Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.14 Investment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.15 Brokerage Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.16 No Misleading Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 3
Representations and warranties by E-Z Serve
3.1 Organization and Existence of E-Z Serve; Capitalization . . . . . . . . . . . . . . . . . . . . 16
3.2 Qualification of E-Z Serve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.3 Authority and Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.4 E-Z Serve Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.5 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.6 No Adverse Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.7 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.8 Brokerage Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.9 No Misleading Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.10 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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ARTICLE 4
Certain Covenants and Agreements
4.1 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4.2 Permits and Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.3 Title to Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.4 UST Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4.5 Personal Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 5
Conditions to Closing
5.1 E-Z Serve's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.2 Obligations of the Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE 6
Tax Matters
6.1 Liability for Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.2 Tax Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.3 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.4 Survival of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.5 Limitation on Tax Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
6.6 Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 7
Indemnification
7.1 Indemnification of the Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.2 Indemnification of E-Z Serve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.3 Demands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.4 Right to Contest and Defend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.5 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.6 Right to Participate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.7 Payment of Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.8 Limitations on Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 8
Arbitration
8.1 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 9
Miscellaneous
9.1 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.2 Post-Closing Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.3 Public Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.4 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.5 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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9.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.7 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.8 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.9 Modifications and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.10 Controlling Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.12 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.13 Combined Working Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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STOCK ACQUISITION AGREEMENT
This STOCK ACQUISITION AGREEMENT (the "Agreement"), made as of the
25th day of March, 1992, by and among E-Z Serve CORPORATION, a corporation
organized under the laws of the State of Delaware ("E-Z Serve"), XXXXX XXXX
XXXXXX ("Xxxxxx"), an individual, XXXXXXX X. XXXXXXXXX, as trustee of the APRIL
XXXXXXX XXXXXX TRUST (who enters into this Agreement solely in its capacity as
trustee of, and on behalf of, such trust, but not individually) (the "April
Trust"), and XXXXXXX X. XXXXXXXXX, as trustee of the XXXXX XXXXXX XXXXXX TRUST
(who enters into this Agreement solely in its capacity as trustee of, and on
behalf of, such trust, but not individually) (the "Xxxxx Trust"), (Xxxxxx, the
April Trust and the Xxxxx Trust are collectively referred to herein as the
"Shareholders").
W I T N E S S E T H :
WHEREAS, Xxxxxx is the owner of (a) all of the issued and outstanding
capital stock of Dart Investment Company, a corporation organized under the
laws of the State of Texas ("Dart"), and (b) 50% of the issued and outstanding
capital stock of Titan Energy, Inc., a corporation organized under the laws of
the State of Texas ("Titan"); and
WHEREAS, the April Trust is the owner of 25% of the issued and
outstanding capital stock of Titan; and
WHEREAS, the Xxxxx Trust is the owner of 25% of the issued and
outstanding capital stock of Titan; and
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WHEREAS, Dart is the owner of all of the issued and outstanding
capital stock of Xxxxxx Petroleum, Inc., a corporation organized under the laws
of the State of Texas ("TPI"); and
WHEREAS, the Shareholders deem it desirable and in their respective
best interests for E-Z Serve to acquire from the Shareholders and for the
Shareholders to transfer to E-Z Serve all of the issued and outstanding capital
stock of Titan and Dart;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements herein contained, the parties hereto agree
as follows:
ARTICLE 1
The Acquisition
1.1 The Closing. Pursuant to the terms, covenants and
conditions of this Agreement, on the Closing Date (as hereinafter defined):
(a) E-Z Serve shall acquire from Xxxxxx, and Xxxxxx
shall transfer to E-Z Serve, 1,000 shares of common stock of Dart, par
value $10 per share, which constitutes all of the issued and
outstanding shares of Dart (the "Dart Stock"), solely in exchange for
1,600,000 shares of voting common stock, $.01 par value per share, of
E-Z Serve (the "E-Z Serve Stock").
(b) E-Z Serve shall purchase from the Shareholders, and
the Shareholders shall sell to E-Z Serve, 100 shares of Common Stock
of Titan, par value $10 per share, which constitutes all of the issued
and outstanding shares of Titan (the "Titan Stock") for $800,000
payable in immediately available funds at the Closing (as hereinafter
defined) as
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follows: (i) $400,000 to Xxxxxx; (ii) $200,000 to the April Trust;
and (iii) $200,000 to the Xxxxx Trust.
1.2 The Closing Date. The closing (the "Closing") shall
take place at the offices of Bracewell & Xxxxxxxxx, 0000 Xxxxx Xxxxx Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxx 00000, at 10:00 a.m. (Central Standard Time) on March 25,
1992 or such other date or time as E-Z Serve and the Shareholders may agree to
in writing (the "Closing Date"). All of the actions taken and documents
executed and delivered at the Closing shall be deemed to be taken, executed and
delivered simultaneously.
ARTICLE 2
Representations and Warranties by
the Shareholders
The Shareholders hereby, jointly and severally, represent and warrant
to E-Z Serve as follows:
2.1 Organization and Existence of Dart; Capitalization. Dart
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Texas. The total authorized capital stock of Dart consists
of 100,000 shares of common stock, par value $10 per share, of which 1,000
shares are outstanding, validly issued, fully paid and nonassessable and
beneficially owned by Xxxxxx, free and clear of all security interests, liens,
charges, encumbrances and rights of others. Except as set forth in Schedule 2.1,
there are no outstanding subscriptions, options, voting trusts, rights,
warrants, calls, restrictions, commitments or agreements relating to shares of
the capital stock of Dart to which Dart or Xxxxxx is a party. Except as set
forth in
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Schedule 2.1, there are no preemptive rights, preferential rights to purchase
or other restrictions or encumbrances on the transfer, issuance, sale or voting
of any shares of the capital stock of Dart. In the event that any such rights
or restrictions exist, Xxxxxx shall deliver to E-Z Serve at the Closing
documents evidencing the removal or permanent waiver of such rights or
restrictions. Other than as set forth in Schedule 2.1, there are no existing
rights with respect to registration under the Securities Act of 1933, as
amended (the "Securities Act"), of any of the capital stock of Dart. No shares
of capital stock of Dart that have been issued were issued in violation of the
preemptive or other restrictive rights of any person.
2.2 Organization and Existence of TPI; Capitalization. TPI
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Texas. The total authorized capital stock of TPI
consists of 5,000 shares of common stock, par value $100 per share, of which
2,550 shares are outstanding, all of which are fully paid and non-assessable
and owned beneficially and of record by Dart. There are no outstanding
subscriptions, options, voting trusts, rights, warrants, calls, restrictions,
encumbrances, commitments or agreements relating to shares of the capital stock
of TPI, except as set forth in Schedule 2.2. Except as set forth in Schedule
2.2, Dart does not own or control any capital stock, bonds, or other securities
of, and does not have any proprietary interest in, any other corporation or
business entity; and, other than TPI, Dart does not control the management or
policies of any corporation or business entity or "control" any corporation or
business entity
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within the meaning of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
2.3 Organization and Existence of Titan; Capitalization.
Titan is a corporation duly organized, validly existing and in good standing
under the laws of the State of Texas. The total authorized capital stock of
Titan consists of 50,000 shares of common stock, $10 par value per share, of
which 100 shares are outstanding, validly issued, fully paid and nonassessable
and beneficially owned by the Shareholders, free and clear of all security
interests, liens, charges, encumbrances and rights of others. Except as set
forth in Schedule 2.3, there are no outstanding subscriptions, options, voting
trusts, rights, warrants, calls, restrictions, commitments or agreements
relating to shares of the capital stock of Titan or to which Titan or any of
the Shareholders is a party. Except as set forth in Schedule 2.3, there are no
preemptive rights, preferential rights to purchase or other restrictions or
encumbrance on the transfer, issuance, sale or voting of any shares of the
capital stock of Titan. In the event that any such rights or restrictions
exist, the Shareholders shall deliver to E-Z Serve at the Closing documents
evidencing the removal or permanent waiver of such rights or restrictions.
Other than as set forth in Schedule 2.3, there are no existing rights with
respect to registration under the Securities Act of any of the capital stock of
Titan. No shares of capital stock of Titan that have been issued were issued
in violation of the preemptive or other restrictive rights of any person.
Except as set forth in Schedule 2.3, Titan does not own or control any capital
stock, bonds, or other securities of, and does not have any proprietary
interest in, any corporation or business entity; and Titan does not
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control the management or policies of any corporation or business entity or
"control" any corporation or business entity within the meaning of the Exchange
Act.
2.4 Qualification of the Companies. Each of Dart, Titan and
TPI (hereinafter sometimes referred to, collectively, as the "Companies" and,
individually, as the "Company") does business in the states listed in Schedule
2.4 and is duly qualified to do business and is in good standing under the laws
of such states. Each Company has full corporate power and lawful corporate
authority to carry on its business as presently conducted and to own and
operate its assets and business. The copies of the charter documents of each
Company and all amendments thereto (certified by the Secretary of State of
Texas) and of its by-laws, as amended to date (certified by its secretary),
which have been delivered to E-Z Serve, are true, complete and correct.
2.5 Financial Statements. Attached hereto as Schedule 2.5
are copies of the following described financial statements: the separate
unconsolidated and audited combined balance sheets of the Xxxxxx Companies with
supporting schedules on each of the Companies as at October 31, 1991, and the
related statements of income or loss, and stockholders' equity of the Companies
for the twelve months ended October 31, 1991, together with an unqualified
report thereon by KPMG Peat Marwick (the "Financial Statements"). Such
Financial Statements present fairly the financial position of the Companies as
of the periods indicated, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods indicated.
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2.6 No Adverse Changes. Except as set forth in Schedule 2.6,
there has not been since April 30, 1991:
(a) any changes in the financial condition or business
of any of the Companies except changes in the ordinary course of
business which have not in any one case or in the aggregate been
Materially adverse to any of the Companies or any of their operations;
(b) any damage, destruction or loss (whether or not
covered by insurance) Materially and adversely affecting any of the
assets or business of any of the Companies;
(c) any change in the accounting methods or practices
followed by any of the Companies or any change in depreciation,
amortization or inventory valuation policies or rates theretofore used
or adopted;
(d) any sale, lease, transfer, mortgage, pledge,
hypothecation, license, abandonment or other disposition by any of the
Companies of any interest in real, personal or intellectual property
(including, but not limited to, any patent, technology, software or
trademark), or of any vehicle, machinery, equipment or other operating
property with book value or sale price (whichever is greater) of
$10,000 or more, except in the ordinary course of business;
(e) any declaration, setting aside or payment of any
dividend or other distribution on or in respect of shares of the
capital stock of any of the Companies or any direct or indirect
redemption, retirement, purchase or other acquisition by any of the
Companies of any such shares or of any option or other right to
acquire any such shares;
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(f) any grant of options or other rights to purchase
shares of capital stock of any of the Companies;
(g) any other occurrences or events which, alone or in
the aggregate, have Materially and adversely affected or may
Materially and adversely affect any of the assets, operations or
businesses of any of the Companies. For purposes of this Agreement,
"Materially", "Material" and any derivation thereof means in reference
to items, occurrences, claims or matters, those items, occurrences,
claims or matters that are, singly or in the aggregate, in excess of
$50,000; or
(h) any change in any of the working capital management,
policies or practices of the Companies, including, but not limited to,
any acceleration in the collection of receivables or delay in the
payment of payables.
2.7 Fees. Except for the fees paid to KPMG Peat Marwick for
the audit of the Financial Statements described in Section 2.5, which audit
shall be paid for by the Companies, and except for such other fees set forth on
Schedule 2.7, which fees will be paid by the Companies, none of the Companies
has any liability or obligation for, or has made any payments for, accounting,
consulting, investment banking or legal fees, or other fees, expenses or charges
of professional advisors in connection with the negotiation, preparation,
execution or performance of this Agreement or the transactions contemplated
hereby. Except as set forth in this Section 2.7, any such fees shall be paid by
the Shareholders.
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2.8 Taxes. The Companies have duly and timely filed all
federal, state and local tax reports and returns required to be filed by the
Companies, and all taxes and levies of every kind, character or description,
shown by such reports or returns to be due and payable, and all other taxes and
levies which are otherwise due and payable, have been paid when due.
2.9 Litigation. There are no actions, suits or proceedings
pending or, except as set forth in Schedule 2.9, threatened against the
Companies at law or in equity or before or by any governmental authority or
instrumentality, or before any arbitrator of any kind, either with respect to
any of the transactions contemplated hereby or which, if adversely determined,
would have a Material adverse effect on the Companies.
2.10 Compliance with Laws. Except as set forth in Schedule
2.10, each of the Companies has complied with all laws and governmental
regulations and orders (including, but not limited to those promulgated by the
U.S. Immigration and Naturalization Service and those relating to the
employment of aliens) relating to any of the property (real or personal,
tangible or intangible) owned, leased or used by it, or applicable to its
business, including, but not limited to, the labor, equal employment
opportunity, occupational safety and health, environmental and antitrust laws.
2.11 No Default. Except as set forth on Schedule 2.11, the
execution and delivery of this Agreement, and the consummation of the
transactions contemplated hereby, will not (a) result in the breach of any of
the terms of, or constitute a default under, the charter documents or by-laws
of any of the Companies, or (b) result in the breach of any of the terms of, or
constitute a
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default under, any contract, agreement, commitment, lease or other obligation
which any of the Companies is now a party or by which it or any of its assets
may be bound or affected, except as indicated on any Schedule hereto with
respect to the need for any consent by any other party to any such contract,
agreement, commitment, lease or other obligation.
2.12 Real Property. The leases of real property listed on
Schedule 2.12 to which any of the Companies is a party are legally valid and
binding and in full force and effect, and there are no defaults thereunder that
will result in payments by any of the Companies (whether for costs of
correction, damages or otherwise) in excess of $10,000 in the aggregate. No
party to any such lease has threatened to terminate it on account of any breach
(actual or alleged). Except as set forth in Schedule 2.12, the Companies have
the right to quiet enjoyment of all real property leased to them for the full
term of such lease and any renewal option relating thereto, and no leasehold or
other interest of any of the Companies, relating to or affecting real property
or any interest therein, is subject or subordinate to any security interest or
mortgage, or subject to any other easement, covenant, restriction, encroachment
or burden except for items that do not Materially and adversely detract from
the value to any of the Companies of such property for the purposes for which
it is now used. None of the rights of any of the Companies under any leasehold
or other interest in real property listed in Schedule 2.12, will be impaired by
the consummation of the transactions contemplated by this Agreement, and all of
such rights will be enforceable by the Companies after the Closing without the
consent or agreement
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of any other person, except consents and agreements specifically described in
Schedule 2.12.
2.13 Authority and Approval. Except as set forth in
Schedule 2.13: (i) each of Xxxxxx, the April Trust and the Xxxxx Trust has the
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, (ii) the execution and delivery of this
Agreement by the April Trust and the Xxxxx Trust and the consummation of the
transactions contemplated hereby have been duly authorized and approved, and no
other act, approval or proceedings on the part of Xxxxxx, the April Trust or the
Xxxxx Trust is required to authorize the execution and delivery of this
Agreement by them or the consummation of the transactions contemplated hereby,
and (iii) this Agreement constitutes the valid and binding obligation of Xxxxxx,
the April Trust and the Xxxxx Trust enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity (whether applied
in a proceeding at law or in equity).
2.14 Investment. Xxxxxx represents and warrants to, and
covenants and agrees with, E-Z Serve that the E-Z Serve Stock to be acquired by
him hereunder is being acquired for his own account and with no intention of
distributing or reselling the E-Z Serve Stock in any transaction which would be
in violation of the securities laws of the United States of America or any
state thereof, without prejudice, however, to Xxxxxx'x right at all times to
sell or otherwise dispose of all or any part of the E-Z Serve Stock under a
registration statement under
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the Securities Act or under an exemption from such registration available under
the Securities Act and subject, nevertheless, to the disposition of Xxxxxx'x
property being at all times within his control. If Xxxxxx should in the future
decide to dispose of any of the E-Z Serve Stock, Xxxxxx understands and agrees
that he may do so only if he obtains an opinion of counsel, satisfactory to E-Z
Serve, that such transfer will not cause E-Z Serve's acquisition of the stock
of Dart to be disqualified from treatment as a tax-free reorganization under
Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended (the
"Code"), and (i) that he may do so only (A) in compliance with the Securities
Act, as then in effect, and (B) in the manner contemplated by any registration
statement pursuant to which such securities are being offered, and (ii) that
stop-transfer instructions to that effect will be in effect with respect to
such securities. Xxxxxx agrees to the imprinting, so long as appropriate, of
the legends set forth below:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED SECURITIES.
EXCEPT FOR SALES OR OTHER DISPOSITIONS PURSUANT TO A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE
SECURITIES LAWS (THE "ACTS"), SUCH SHARES MAY NOT BE SOLD OR OTHERWISE
DISPOSED OF BY ANY HOLDER HEREOF UNLESS PRIOR TO SELLING OR OTHERWISE
DISPOSING OF ANY SUCH SHARES, SUCH HOLDER DELIVERS TO THE COMPANY
PRIOR TO THE DISPOSITION AN OPINION OF COUNSEL, REASONABLY ACCEPTABLE
TO THE COMPANY, TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER
THE ACTS.
Xxxxxx represents and warrants to, and covenants and agrees with, E-Z Serve
that by reason of his business and financial experience he has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the prospective investment in the
E-Z Serve Stock, is able to bear the economic risk of such investment and would
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be able to afford a complete loss of such investment. Xxxxxx represents and
warrants to E-Z Serve that he has received and reviewed (i) E-Z Serve's
Registration Statement on Form S-1 filed with the Securities and Exchange
Commission on October 3, 1990, as amended, and the Prospectus dated March 22,
1991 constituting a part of such Registration Statement, (ii) each of E-Z
Serve's Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, Proxy
Statements and Schedule 13Ds that E-Z Serve is required to file pursuant to the
Exchange Act and E-Z Serve's Annual Report on Form 10-K for the year ended
December 31, 1991 (the documents listed in clauses (i) and (ii) are hereinafter
collectively referred to as the "E-Z Serve Documents"), and (b) all of the
other information, if any, requested by Xxxxxx from E-Z Serve, and that Xxxxxx
believes that the E-Z Serve Documents and such other information are sufficient
to enable Xxxxxx to make an informed decision with respect to his investment in
the E-Z Serve Stock.
2.15 Brokerage Arrangements. The Shareholders have not
entered (directly or indirectly) into any agreement with any person, firm or
corporation that would obligate E-Z Serve or, except as set forth in Section
2.7, any of the Companies to pay any commission, brokerage or "finder's fee" in
connection with the transactions contemplated herein.
2.16 No Misleading Statements. The representations and
warranties of the Shareholders contained in this Agreement, the Schedules
hereto and all other documents and information furnished to E-Z Serve and its
representatives pursuant hereto do not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
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ARTICLE 3
Representations and warranties by E-Z Serve
E-Z Serve hereby represents and warrants to each of the Shareholders
as follows:
3.1 Organization and Existence of E-Z Serve; Capitalization.
E-Z Serve is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. The total authorized
capital stock of E-Z Serve consists of (a) 100,000,000 shares of common stock,
par value $0.01 per share, of which as of the Closing Date, 9,609,234 shares
were outstanding and issued, (b) 10,000,000 shares of preferred stock, $0.01
par value per share, of which (i) 200,000 shares have been designated as $6.00
Convertible Preferred Stock, Series C ("Series C Stock"), of which 66,924
shares of Series C Stock are issued and outstanding as of the Closing Date,
(ii) 25,000 shares have been designated as Series B Convertible Preferred
Stock, of which as of the Closing Date, all will be issued and outstanding and
(iii) 100,000 shares have been designated as $6.00 Convertible Preferred Stock,
Series A ("Series A Stock"), of which as of the Closing Date none will be
issued and outstanding. Except as set forth in the E-Z Serve Documents, the
Series B Convertible Preferred Stock Purchase Agreement dated as of the date
hereof among E-Z Serve and the investors named therein, and the Preferred Stock
Exchange Agreement dated the date hereof between the Company and Harken Energy
Corporation (the "Exchange Agreement"), there are no (i) outstanding
subscriptions, options, voting trusts, rights, warrants, calls, restrictions,
commitments or agreements relating to shares of the capital stock of E-Z Serve
to which E-Z Serve is a party or (ii) preemptive
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rights, preferential rights to purchase or other restrictions or encumbrances
on the transfer, issuance, sale or voting of any shares of the authorized
capital stock of E-Z Serve. Other than as set forth in the E-Z Serve
Documents, the Registration Rights Agreement dated as of the date hereof among
E-Z Serve and the other parties named therein, the Common Stock Registration
Rights Agreement dated as of the date hereof between E-Z Serve and Xxxxxx, the
Common Stock Registration Rights Agreement between E-Z Serve and Xxxxxxx X.
Xxxxxxxxx and the Exchange Agreement, there are no existing rights with respect
to registration under the Securities Act of any of the capital stock of E-Z
Serve. No shares of capital stock of E-Z Serve that have been issued were
issued in violation of the preemptive or other restrictive rights of any
person.
3.2 Qualification of E-Z Serve. E-Z Serve does business in
the states listed in Schedule 3.2 and is duly qualified to do business and is
in good standing under the laws of such states. E-Z Serve has full corporate
power and lawful corporate authority to carry on its business as presently
conducted and to own and operate its assets and business. The copies of the
charter documents of E-Z Serve and all amendments thereto (certified by the
Secretary of State of Delaware) and of its by-laws, as amended to date
(certified by its secretary), which have been delivered to the Shareholders,
are true, complete and correct.
3.3 Authority and Approval. E-Z Serve has the corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. E-Z Serve is acquiring the Dart Stock and
the Titan Stock for its own account for investment purposes and not with a view
to distribution. The execution and delivery of this Agreement by E-Z Serve and
the
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consummation of the transactions contemplated hereby have been duly authorized
and approved by its Board of Directors. No other act, approval or proceedings
on the part of E-Z Serve or the holders of any class of its equity securities
is required to authorize the execution and delivery of this Agreement by E-Z
Serve or consummation of the transactions contemplated hereby. This Agreement
constitutes the valid and binding obligation of E-Z Serve enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors' rights generally and by general principles
of equity (whether applied in a proceeding at law or in equity).
3.4 E-Z Serve Stock. The E-Z Serve Stock to be issued to the
Shareholders hereunder has been duly authorized for issuance by all necessary
corporate action on the part of E-Z Serve. Such shares of E-Z Serve Stock will
be fully paid and non-assessable, free and clear from any liens or encumbrances
except as specifically set forth in Section 3.1.
3.5 Litigation. There are no actions, suits or proceedings
pending or, except as set forth in Schedule 3.5, threatened against E-Z Serve
at law or in equity or before or by any governmental authority or
instrumentality, or before any arbitrator of any kind, either with respect to
any of the transactions contemplated hereby or which, if adversely determined,
would have a Material adverse effect on E-Z Serve.
3.6 No Adverse Changes. Except as set forth in Schedule 3.6,
there has not been since E-Z Serve's third fiscal quarter ended September 30,
1991:
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(a) any changes in the financial condition or business
of E-Z Serve except changes in the ordinary course of business which
have not in any one case or in the aggregate been Materially adverse
to E-Z Serve or any of its operations;
(b) any damage, destruction or loss (whether or not
covered by insurance) Materially and adversely affecting any of the
assets or business of E-Z Serve;
(c) any change in the accounting methods or practices
followed by E-Z Serve or any change in depreciation, amortization or
inventory valuation policies or rates theretofore used or adopted;
(d) any sale, lease, transfer, mortgage, pledge,
hypothecation, license, abandonment or other disposition by E-Z Serve
of any material interest in real, personal or intellectual property
(including, but not limited to, any patent, technology, software or
trademark), or of any vehicle, machinery, equipment or other operating
property with book value or sale price (whichever is greater) of
$10,000 or more, except in the ordinary course of business;
(e) any declaration, setting aside or payment of any
dividend or other distribution on or in respect of shares of the
capital stock of E-Z Serve or any direct or indirect redemption,
retirement, purchase or other acquisition by E-Z Serve of any such
shares or of any option or other right to acquire any such shares;
(f) any grant of options or other rights to purchase
shares of capital stock of E-Z Serve; or
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(g) any other occurrences or events which, alone or in
the aggregate, have Materially and adversely affected or may
Materially and adversely affect any of the assets, operations or
businesses of E-Z Serve.
3.7 No Default. Except as set forth on Schedule 3.7, the
execution and delivery of this Agreement, and the consummation of the
transactions contemplated hereby, will not (a) result in the breach of any of
the terms of, or constitute a default under, the charter documents or by-laws of
E-Z Serve, or (b) result in the breach of any of the terms of, or constitute a
default under, any contract, agreement, commitment, or other obligation which
E-Z Serve is now a party or by which it or any of its assets may be bound or
affected, except as indicated on any Schedule hereto with respect to the need
for any consent by any other party to any such contract, agreement, commitment,
or other obligation.
3.8 Brokerage Arrangements. E-Z Serve has not entered
(directly or indirectly) into any agreement with any person, firm or
corporation that would obligate the Shareholders to pay any commission,
brokerage or "finder's fee" in connection with the transactions contemplated
herein.
3.9 No Misleading Statements. The representations and
warranties of E-Z Serve contained in this Agreement, the Schedules hereto and
all other documents and information furnished to the Shareholders and their
representatives pursuant hereto do not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were
made, not misleading.
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3.10 Compliance with Laws. Except as set forth in Schedule
3.10, E-Z Serve has complied with all laws and governmental regulations and
orders (including, but not limited to those promulgated by the U.S. Immigration
and Naturalization Service and those relating to the employment of aliens)
relating to any of the property (real or personal, tangible or intangible)
owned, leased or used by it, or applicable to its business, including, but not
limited to, the labor, equal employment opportunity, occupational safety and
health, environmental and antitrust laws.
ARTICLE 4
Certain Covenants and Agreements
4.1 Access. Each party hereto agrees that they will, upon
reasonable notice, give to the other parties, their counsel, accountants and
employees who need access to such information, full access, during normal
business hours throughout the period prior to the Closing Date, to the
properties, books, contracts and records of the other relating to their assets
or business operations. Each party agrees that it will, and will cause its
employees to, hold in strict confidence all information so obtained hereby,
agrees that such information is proprietary to the other party and if the
transactions herein provided for are not consummated as contemplated herein,
agrees that it shall not disclose such information to any third parties or use
such information for itself or on behalf of others, or allow its employees to
use or disclose any of such information, except to the extent that such
information is otherwise publicly known or as required by law to be disclosed.
Each party further agrees that it shall require its employees, agents and
representatives having access to such
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information to comply with these obligations and to return promptly all such
information.
4.2 Permits and Licenses. The Shareholders will comply with
required procedures and cooperate with E-Z Serve to enable E-Z Serve to obtain
licenses and permits to sell liquor, beer and wine at the retail gasoline
marketing locations and convenience stores owned or leased by any of the
Companies or to which any of the Companies has certain operating rights, as
listed on Schedule 4.2 hereto (the "Locations"), as soon as possible after the
Closing Date. Xxxxxx and E-Z Serve shall cooperate in effecting the transfer
to E-Z Serve, or its designee, of inventories of beer and wine located at each
Location.
4.3 Title to Properties. No later than 90 days after the
Closing Date, the Shareholders shall, at their own cost and expense, with
respect to each property leased by any of the Companies (the "Properties"),
furnish or cause to be furnished to the Companies a "nothing further
certificate" showing changes to the title to such properties from the date of
issuance of the Owner's Policy of Title Insurance held by the then current
owner of such properties. The Shareholders shall during a period of 120 days
after the Closing Date (a) cure any title defect that is a lien on any of the
Properties, and (b) have the option to cure any other type of title defect,
encumbrance or objection identified by E-Z Serve that adversely affects, in the
opinion of E-Z Serve, any of the Properties. If the Shareholders have not, to
the satisfaction of E-Z Serve, cured any title defect, encumbrance or objection
(a "Defect") within such 120-day period, E-Z Serve may elect (x) in the case of
a lease that has a Defect and of which any of the Shareholders is a lessor, to
terminate such lease without any
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further obligation to the Companies, and (y) in all other cases, to assign any
lease that has a Defect to any Shareholder or its assignee without retaining
any obligation therefor. E-Z Serve shall give notice of such termination or
assignment to the Shareholders and the Shareholders shall, within 10 days of
such notice, transfer such number of shares of E-Z Serve Stock as shall equal
in value the value of the property to which the terminated or assigned lease
relates. For the purposes of this Section, (a) the value of the E-Z Serve
Stock shall be deemed to be $1.90 per share, and (b) the value of each of the
Properties shall be such as is set forth on Schedule 4.3.
4.4 UST Registration. Within 30 days following the Closing
Date, the Shareholders shall take, at their own cost and expense, such action
as may be necessary to cause the underground storage tanks relating to
properties not being leased by E-Z Serve or any of the Companies not to be
registered in the name of E-Z Serve or any of the Companies.
4.5 Personal Guarantee. Xxxxxx shall, upon the written
request of E-Z Serve, issue a personal guarantee for the benefit of any of the
Companies' suppliers of motor fuels that are not, prior to the Closing Date,
suppliers of E-Z Serve; provided, however, that no such personal guarantee,
which shall be in such form as is acceptable to the suppliers for whose benefit
it is issued, shall extend beyond the first anniversary date of the issuance of
such personal guarantee.
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ARTICLE 5
Conditions to Closing
5.1 E-Z Serve's Obligations. The obligations of E-Z Serve at
the Closing are subject to the following conditions:
(a) The representations and warranties of the
Shareholders shall be true, complete and correct when made, and, in
addition, shall be true, complete and correct on and as of the Closing
Date with the same force and effect as though made on and as of the
Closing Date;
(b) Each of the Shareholders shall have performed all
obligations and agreements and complied with all covenants and
conditions contained in this Agreement to be performed and complied
with by them on or prior to the Closing Date and E-Z Serve shall have
received a certificate from each of the Shareholders, dated the
Closing Date, to such effect;
(c) E-Z Serve shall have received a favorable opinion of
Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P., counsel to the Shareholders, dated
the Closing Date, in form and substance reasonably satisfactory to E-Z
Serve and its counsel;
(d) Xxxxxx shall have executed and delivered a
Consulting Agreement, which contains a non-competition covenant;
(e) The consents, waivers, approvals, licenses and
authorizations of third parties or governmental authorities or any
amendments or modifications to existing agreements with third parties
required to consummate the transactions contemplated hereby that are
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listed in Schedule 5.1(e) shall have been duly obtained on terms and
conditions reasonably satisfactory to E-Z Serve;
(f) The leases of the real and personal properties
listed on Schedule 5.1(f) shall have been cancelled and new leases of
such properties shall have been executed by the respective lessors and
TPI as lessee, and delivered at the Closing to E-Z Serve (the "New
Leases");
(g) The Shareholders shall have delivered to E-Z Serve,
at the Closing, certificates or other documentation evidencing that
none of the Companies are guarantors of, nor are otherwise obligated
under, any mortgages, bank loans, or other indebtedness relating to
any loans or other obligations of the Shareholders, or related to the
Locations or other properties of the Companies;
(h) The Companies shall not have any bank indebtedness
exceeding in the aggregate $2 million;
(i) No shares of capital stock of Salt Fork Company,
Inc. ("Salt Fork") shall be owned by Dart;
(j) Dart shall have transferred its intercompany
accounts to Salt Fork as a contribution to capital; and
(k) TPI shall have transferred its wholesale gasoline
business, including, except as set forth in the Receivables Agreement
of even date herewith between TPI and Salt Fork, all assets and
liabilities associated therewith, to Salt Fork.
5.2 Obligations of the Shareholders. The obligations of the
Shareholders at the Closing are subject to the following conditions:
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(a) The representations and warranties of E-Z Serve
shall be true, complete and correct when made, and, in addition, shall
be true, complete and correct on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date;
(b) E-Z Serve shall have performed all obligations and
agreements and complied with all covenants and conditions contained in
this Agreement to be performed and complied with by E-Z Serve on or
prior to the Closing Date and the Shareholders shall have received a
certificate from E-Z Serve, dated the Closing Date, to such effect;
(c) The Shareholders shall have received a favorable
opinion of Xxxxxxxxx & Xxxxxxxxx, dated the Closing Date, in form and
substance reasonably satisfactory to the Shareholders and their
counsel;
(d) The consents, waivers, approvals, licenses and
authorizations of third parties or governmental authorities or any
amendments or modifications to existing agreements with third parties
required to consummate the transactions contemplated hereby that are
listed in Schedule 5.2(d) shall have been duly obtained on terms and
conditions reasonably satisfactory to the Shareholders; and
(e) The leases of the real and personal properties
listed on Schedule 5.1(f) shall have been cancelled and the New Leases
shall have been executed and delivered at the Closing.
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ARTICLE 6
Tax Matters
6.1 Liability for Taxes. (a) For purposes of this
Agreement, "Taxes" means (i) all federal, foreign, state or local net or gross
income, gross receipts, sales, use, real property gains or transfer, ad valorem,
property, value-added, franchise, production, severance, windfall profit,
withholding, payroll, employment, excise or similar taxes, assessments, duties,
fees, levies or other governmental charges, together with any interest thereon,
any penalties, additions to tax or additional amounts with respect thereto and
any interest in respect of such penalties, additions or additional amounts, and
(ii) liability for the payment of any consolidated or combined tax (including,
without limitation, any liability imposed pursuant to Treasury Regulations
Section 1.1502-6 as a result of being a member of the Seller Group), together
with any interest thereon, any penalties, additions to tax or additional amounts
with respect thereto and any interest in respect of such penalties, additions or
additional amounts, of the type described in clause (i) above.
(b) The Shareholders shall be liable for, and shall
indemnify and hold E-Z Serve and its affiliates harmless from, (1) any Taxes
caused by or resulting from the transfer of the Dart Stock and the sale of the
Titan Stock, (2) any Taxes (other than Taxes described in clause (1) above)
imposed on or incurred by the Companies for any taxable period ending on or
before March 1, 1992 (the "Effective Date") (or the portion, determined as
described in clause (d) of this Section 6.1, of any such Taxes imposed on or
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incurred by the Companies for any taxable period beginning on or before and
ending after the Effective Date which is allocable to the portion of such
period occurring on or before the Effective Date (the "Pre-Effective Date
Period")), excluding (i) any such Taxes caused by or resulting from any actual
or deemed election pursuant to Section 338 of the Code with regard to the
transfer of the Dart Stock and the sale of the Titan Stock, (ii) any such Taxes
that have been reflected as current accrued tax liabilities on the balance
sheet of the Companies as of the Effective Date, and (iii) any Taxes caused by
or resulting from the satisfaction of the condition set forth in Section
5.1(i), (3) any attorneys' fees or other litigation costs incurred by E-Z
Serve, the Companies, or any affiliate thereof in connection with any payment
from the Shareholders under this clause (b) of Section 6.1, (4) any Taxes
payable as a result of any breach by the Shareholders of any representation set
forth herein and (5) any sales, use, real property transfer or gain or similar
Taxes arising from the transactions contemplated in this Agreement.
(c) E-Z Serve shall be liable for, and shall indemnify
and hold the Shareholders harmless from, (1) any Taxes caused by or resulting
from any actual or deemed election pursuant to Section 338 of the Code with
regard to the acquisition of the Dart Stock and Titan Stock (2) any Taxes
imposed on or incurred by the Companies for which the Shareholders are not
liable under clause (b) of this Section 6.1 and (3) any attorneys' fees or
other litigation costs incurred by the Shareholders in connection with any
payment from E-Z Serve under this clause (c) of Section 6.1.
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(d) Whenever it is necessary for purposes of clause (b)
or (c) of this Section 6.1 to determine the portion of any Taxes imposed on or
incurred by the Companies for a taxable period beginning on or before and
ending after the Effective Date which is allocable to the Pre-Effective Date
Period, the determination shall be made, in the case of property or ad valorem
Taxes or franchise Taxes (which are not measured by, or based upon, net
income), on a per diem basis and, in the case of other Taxes, by assuming that
the Pre-Effective Date Period constitutes a separate taxable period of the
Companies and by taking into account the actual taxable events occurring during
such period (except that exemptions, allowances and deductions for a taxable
period beginning on or before and ending after the Effective Date that are
calculated on an annual or periodic basis, such as the deduction for
depreciation, shall be apportioned to the Pre-Effective Date Period ratably on
a per diem basis).
6.2 Tax Proceedings. In the event E-Z Serve or any of its
affiliates receives notice (the "Proceeding Notice") of any examination, claim,
adjustment, or other proceeding with respect to the liability of the Companies
for Taxes for any period for which the Shareholders are or may be liable under
clause (b) of Section 6.1, E-Z Serve shall notify the Shareholders in writing
thereof (the "E-Z Serve Notice") no later than the earlier of (i) 30 days after
the receipt by E-Z Serve or any of its affiliates of the Proceeding Notice or
(ii) ten days prior to the deadline for responding to the Proceeding Notice.
As to any such Taxes for which the Shareholders are solely liable under clause
(b) of Section 6.1, the Shareholders shall be entitled at their expense to
control or settle the contest of such examination, claim, adjustment, or other
proceeding, provided (a) it
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notifies E-Z Serve in writing that it desires to do so no later than the
earlier of (i) 30 days after receipt of the E-Z Serve Notice or (ii) five days
prior to the deadline for responding to the Proceeding Notice and (b) it may
not, without the consent of E-Z Serve, agree to any settlement which could
result in an increase in the amount of Taxes for which E-Z Serve is liable
under clause (c) of Section 6.1. The parties shall cooperate with each other
and with their respective affiliates, and will consult with each other, in the
negotiation and settlement of any proceeding described in this Section 6.2.
E-Z Serve will provide, or cause to be provided, to the Shareholders necessary
authorizations, including powers of attorney, to control any proceedings which
the Shareholders are entitled to control pursuant to this Section 6.2.
6.3 Payment of Taxes. All Taxes with respect to the
Companies shall be paid by the party that is legally responsible therefor.
Except as otherwise provided in this Article 6, any amount to which a party is
entitled under this Article 6 shall be promptly paid to such party by the party
obligated to make such payment following written notice to the party so
obligated stating that the Taxes to which such amount relates have been paid or
incurred and providing details supporting the calculation of such amount.
6.4 Survival of Obligations. The obligations of the parties
set forth in this Article 6 shall be unconditional and absolute and shall
remain in effect without limitation as to time.
6.5 Limitation on Tax Indemnity. E-Z Serve shall not be
liable for any amount of Taxes that may be payable pursuant to Section
6.1(b)(2)(iii) that exceed in the aggregate $1 million.
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6.6 Conflict. In the event of a conflict between the
provisions of this Article 6 and any other provisions of this Agreement, the
provisions of this Article 6 shall control. The provisions of Article 7 shall
not apply to any Taxes for which any party is liable under this Article 6.
ARTICLE 7
Indemnification
7.1 Indemnification of the Shareholders. E-Z Serve, from and
after the Closing Date, shall indemnify and hold the Shareholders harmless from
and against any and all damages (including exemplary damages and penalties),
losses, deficiencies, costs, expenses, obligations, fines, expenditures, claims
and liabilities, including reasonable counsel fees and reasonable expenses of
investigation, defending and prosecuting litigation (collectively, the
"Damages"), suffered by the Shareholders as a result of, caused by, arising out
of, or in any way relating to (a) any misrepresentation, breach of warranty, or
nonfulfillment of any agreement or covenant on the part of E-Z Serve under this
Agreement or any misrepresentation in or omission from any list, schedule,
certificate, or other instrument furnished or to be furnished to the
Shareholders by E-Z Serve pursuant to the terms of this Agreement, and (b) any
liability or obligation (other than those for which E-Z Serve is being
indemnified by the Shareholders hereunder) which pertains to the ownership,
operation or conduct of the businesses or affairs of the Companies arising from
any acts, omissions, events, conditions or circumstances occurring after the
Effective Date.
7.2 Indemnification of E-Z Serve. The Shareholders, from and
after the Closing Date, shall indemnify and hold the Companies and E-Z Serve
harmless
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from and against any and all Damages suffered by any of the Companies or E-Z
Serve as a result of, caused by, arising out of, or in any way relating to:
(a) any misrepresentation, breach of warranty, or nonfulfillment of any
agreement or covenant on the part of the Shareholders under this Agreement or
any misrepresentation in or omission from any list, schedule, certificate, or
other instrument furnished or to be furnished to E-Z Serve by any of the
Shareholders or any of the Companies pursuant to the terms of this Agreement;
(b) any liability or obligation which pertains to the ownership, operation or
conduct of the business or affairs of the Companies arising from any acts,
omissions, events, conditions or circumstances occurring or existing on or
prior to the Effective Date, including, without limitation, those matters
disclosed on any Schedule hereto, other than (i) any liability reserved for or
recorded on the Financial Statements and (ii) any liability incurred since
October 31, 1991 in the ordinary course of business for the purchase of goods
or services; (c) an assignment of any lease pursuant to Section 4.3; and (d)
any Environmental Cleanup Liability (as hereinafter defined).
7.3 Demands. Each indemnified party hereunder agrees that
promptly upon its discovery of facts giving rise to a claim for indemnity under
the provisions of this Agreement, including receipt by it of notice of any
demand, assertion, claim, action or proceeding, judicial or otherwise, by any
third party (such third party actions being collectively referred to herein as
the "Claim"), with respect to any matter as to which it claims to be entitled
to indemnity under the provisions of this Agreement, it will give prompt notice
thereof in writing to the indemnifying party, together with a statement of such
information
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respecting any of the foregoing as it shall have. Such notice shall include a
formal demand for indemnification under this Agreement. The indemnifying party
shall not be obligated to indemnify the indemnified party with respect to any
Claim if the indemnified party knowingly failed to notify the indemnifying
party thereof in accordance with the provisions of this Agreement in sufficient
time to permit the indemnifying party or its counsel to defend against such
matter and to make a timely response thereto including, without limitation, any
responsive motion or answer to a complaint, petition, notice or other legal,
equitable or administrative process relating to the Claim, only insofar as such
knowing failure to notify the indemnifying party has actually resulted in
prejudice or damage to the indemnifying party. The Shareholders hereby
acknowledge notice of indemnity from E-Z Serve and the Companies with regards
to the Claims set forth in the Schedules attached to this Agreement.
7.4 Right to Contest and Defend. The indemnifying party is
entitled at its cost and expense to contest and defend by all appropriate legal
proceedings any Claim with respect to which it is called upon to indemnify the
indemnified party under the provisions of this Agreement; provided, that notice
of the intention so to contest shall be delivered by the indemnifying party to
the indemnified party within 20 days from the date of receipt by the
indemnifying party of notice by the indemnified party of the assertion of the
Claim. Any such contest may be conducted in the name and on behalf of the
indemnifying party or the indemnified party as may be appropriate. Such
contest shall be conducted by reputable counsel employed by the indemnifying
party, but the indemnified party shall have the right but not the obligation to
participate in such proceedings
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and to be represented by counsel of its own choosing at its sole cost and
expense. The indemnifying party shall have full authority to determine all
action to be taken with respect thereto; provided, however, that the
indemnifying party will not have the authority to subject the indemnified party
to any obligation whatsoever, other than the performance of purely ministerial
tasks or obligations not involving material expense. If the indemnifying party
does not elect to contest any such claim, the indemnifying party shall be bound
by the result obtained with respect thereto by the indemnified party. At any
time after the commencement of the defense of any Claim, the indemnifying party
may request the indemnified party to agree in writing to the abandonment of
such contest or to the payment or compromise by the indemnified party of the
asserted Claim, whereupon such action shall be taken unless the indemnified
party determines that the contest should be continued, and so notifies the
indemnifying party in writing within 15 days of such request from the
indemnifying party. If the indemnified party determines that the contest
should be continued, the indemnifying party shall be liable hereunder only to
the extent of the amount that the other party to the contested Claim had agreed
unconditionally to accept in payment or compromise as of the time the
indemnifying party made its request therefor to the indemnified party.
7.5 Cooperation. If requested by the indemnifying party, the
indemnified party agrees to cooperate with the indemnifying party and its
counsel in contesting any Claim that the indemnifying party elects to contest
or, if appropriate, in making any counterclaim against the person asserting the
Claim, or any cross-complaint against any person, but the indemnifying party
will
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reimburse the indemnified party for any third party expenses incurred by it in
so cooperating. At no cost or expense to the indemnified party, the
indemnifying party shall cooperate with the indemnified party and its counsel
in contesting any Claim.
7.6 Right to Participate. The indemnified party agrees to
afford the indemnifying party and its counsel the opportunity to be present at,
and to participate in, conferences with all persons, including governmental
authorities, asserting any Claim against the indemnified party or conferences
with representatives of or counsel for such persons.
7.7 Payment of Damages. The indemnifying party shall pay to
the indemnified party in immediately available funds any amounts to which the
indemnified party may become entitled by reason of the provisions of this
Agreement, such payment to be made within five days after any such amounts are
finally determined either by mutual agreement of the parties hereto or pursuant
to the award of the arbitrator; provided, however, that with respect to any
Damages that may be owed by the Shareholders, the Shareholders may, at their
option, credit such amount of Damages to the payments owed by any of the
Companies pursuant to the New Leases. In the event the Shareholders should,
within such period of time, fail either to pay the amounts in immediately
available funds or so credit the New Leases, then any of the Companies may
offset such amounts from the amounts payable under the New Leases.
7.8 Limitations on Indemnification.
(a) In connection with any Environmental Cleanup
Liability (as hereinafter defined), the Shareholders shall not be
liable for the amount
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of Damages that exceed in the aggregate $300,000. Further, with
respect to any Environmental Cleanup Liability that arises in
connection with underground storage tanks at any of the Locations that
are located in a State that has an underground storage tank remediation
reimbursement fund, the liability of the Shareholders for Damages shall
be limited to the amounts not reimbursed to E-Z Serve pursuant to such
fund.
(b) The liability of the Shareholders for the breach of
any of the representations and warranties by the Shareholders set
forth in Article 2 shall be limited to claims for which E-Z Serve
delivers written notice to the Shareholders on or before the third
anniversary date of the Closing Date.
(c) For purposes of this Agreement, "Environmental
Cleanup Liability" means any cost or expense of any nature whatsoever
incurred to contain, remove, remedy, clean up, or xxxxx any deposit,
emission, discharge, release or threatened release of hazardous
substances, pollutants or contaminants from or on any of the
Locations, including, without limitation, (i) any direct costs or
expenses for investigation, study, assessment, legal representation,
cost recovery by governmental agencies, or on-going monitoring in
connection therewith, and (ii) any cost, expense, loss or damage
incurred with respect to any of the Locations or its operation as a
result of actions or measures necessary to implement or effectuate any
such containment, removal, remediation, cleanup or abatement.
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(d) With regards to any Damages arising from the matters
discussed under the captions "Xxxx X. Xxxxxxx vs. TPI," "Estate of
Xxxxxx Xxxxxx" and "Estate of Xxxxxx Xxxxxx" in Schedule 2.6(b), the
liability of the Shareholders shall not exceed in the aggregate $2
million.
(e) In determining the amount of any Damages for which
any party is entitled to indemnification under this Agreement, the
amount thereof will be reduced by any insurance proceeds realized by
the indemnified party net of any insurance premium that becomes due as
a result of the claim for which indemnity is sought.
ARTICLE 8
Arbitration
8.1 Arbitration. The parties hereto agree that any
controversy or claim arising out of or relating to a disagreement or dispute
under this Agreement shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (the
"AAA"), and judgment upon the award rendered by the arbitrator may be entered
in any court having jurisdiction thereof and shall be binding upon the parties
hereto. The parties hereto agree that (a) any decision of the arbitrator shall
be final, nonappealable and binding, (b) any arbitration proceeding or hearings
in connection with any dispute hereunder shall be held in Houston, Texas and
the hearing will commence within 30 days after receipt by the AAA of an
arbitration notice, and (c) any fees of arbitration, reasonable attorneys' fees
of the prevailing party and transcript costs, shall be paid by the unsuccessful
party in the arbitration, unless otherwise determined by the arbitrator. The
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arbitration notice shall be sent from either the Shareholders to E-Z Serve or
E-Z Serve to the Shareholders expressing the intention to arbitrate with the
AAA a disagreement and the nature of the disagreement. Simultaneously
therewith, the Shareholders or E-Z Serve, as the case may be, shall transmit
three copies of the arbitration notice to the regional office of the AAA which
includes within its boundaries Houston, Texas, along with three copies of this
Agreement and the appropriate administrative fee, thereby submitting such
dispute for arbitration.
ARTICLE 9
Miscellaneous
9.1 Fees and Expenses. Whether or not the transactions
contemplated hereby are consummated, each party shall bear its own fees and
expenses incident to the negotiation, preparation and execution of this
Agreement and the consummation of the transactions contemplated hereby,
including the fees and expenses of its own counsel, accountants and other
professionals.
9.2 Post-Closing Access. For a period of five years after
the Closing, Xxxxxx will have reasonable access to the records of any of the
Companies covering any period prior to the Closing, at reasonable times during
normal business hours and for any proper business purpose, at his sole cost and
expense.
9.3 Public Statements. No party hereto shall, without the
prior consent of the other parties hereto, issue or make any public
announcement or statement regarding this Agreement and the transactions
contemplated hereby unless required to do so in order to comply with
requirements of applicable law, rule or regulation. In the event any party
hereto is required to make any such
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public announcement or statement, it shall furnish a proposed text thereof to
the other parties for their review and comments.
9.4 Interpretation. Wherever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under any applicable law, such provision shall be in
effect only to the extent of such prohibition or invalidation, without
invalidating the remainder of this Agreement.
9.5 Entire Agreement. This Agreement, including the
Schedules hereto, constitutes the entire agreement among the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, oral or written, among the parties hereto with respect to
the subject matter hereof.
9.6 Notices. All notices which are required or may be given
pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and delivered by hand or express
delivery service or mailed by registered or certified mail, postage prepaid, as
follows:
If to each Shareholder:
Xxxxx Xxxx Xxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
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If to E-Z Serve:
E-Z Serve Corporation
00000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: President
or such other address as any party hereto shall have designated by notice in
writing to the other parties hereto. All such notices given in compliance with
the provisions of this Section shall be deemed to have been given when
delivered or mailed.
9.7 Assignment. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns. Neither this Agreement nor any of the parties' rights hereunder shall
be assignable without the prior written consent of the other parties hereto.
Notwithstanding the foregoing, at or after the Closing Date the Shareholders
may assign their rights hereunder and under other documents and instruments
contemplated herein to The First National Bank of Boston (the "Bank"); and
provided further, that upon foreclosure or sale in lieu of foreclosure of the
E-Z Serve Stock or a substantial portion thereof by or to the Bank, the
warranties, representations, obligations, agreements and indemnities of the
Shareholders and in the other documents and instruments contemplated herein
shall inure to the benefit of the Bank or any purchaser or grantee of such E-Z
Serve Stock. Notwithstanding any other provision of this Agreement, no
stockholder, director, officer, employee or Trustee of any of the parties
hereto shall have any liability under or by reason of this Agreement or the
transactions contemplated hereby.
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9.8 Headings. The headings and titles to the Articles and
Sections of this Agreement are inserted for convenience only and shall not be
deemed a part hereof or affect the construction or interpretation of any
provision hereof.
9.9 Modifications and Waivers. No termination, cancellation,
modification, amendment, deletion, addition or other change in this Agreement
or any provision thereof, or waiver of any right or remedy herein provided,
shall be effective for any purpose unless specifically set forth in a writing
signed by the party or parties to be bound thereby. The waiver of any right or
remedy in respect of any occurrence or event on one occasion shall not be
deemed a waiver of such right or remedy in respect of such occurrence or event
on any other occasion.
9.10 Controlling Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
9.11 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
counterparts collectively shall constitute one instrument representing the
agreement among the parties hereto.
9.12 Further Assurances. Each party hereto shall execute and
deliver such instruments and take such other actions as any other party hereto
may reasonably request in order to carry out the intent of this Agreement.
9.13 Combined Working Capital. For purposes of this
Agreement, the parties have estimated that as at the Effective Date, the
Combined Working Capital (as hereinafter defined) of the Companies was at least
$(125,000). For the purposes of this Agreement, "Combined Working Capital"
means the sum of the
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Companies' cash and cash equivalents, accounts receivable (minus reserves
therefor), inventories, prepaid expenses and other current assets as at the
Effective Date, less the sum of the Companies' current liabilities as at the
Effective Date, all as determined in accordance with generally accepted
accounting principles employed by the Companies on a basis consistent with
prior periods and exclusive of any intercompany accounts. E-Z Serve shall have
up until 60 days after the Closing Date during which to verify the accuracy of
the Combined Working Capital. If E-Z Serve shall have failed to notify the
Shareholders within 60 days after the Closing Date of any dispute with respect
to the amount of such Combined Working Capital, then such amount shall be
conclusively considered to be true and correct. In the event the Combined
Working Capital is found to be less than $(125,000), then the Shareholders
shall pay to E-Z Serve such difference in cash within five days of E-Z Serve's
notice to the Shareholders that such is the case. If E-Z Serve and the
Shareholders are unable to agree upon the determination of the actual Combined
Working Capital, an accounting firm selected in the manner hereinafter provided
shall be requested to audit and determine such amount. The selection of the
accounting firm shall be made by the Shareholders from a list of three
nationally recognized independent accounting firms submitted by E-Z Serve. The
decision of the independent accounting firm shall be binding upon the
Shareholders and E-Z Serve, and the fees and expenses of such independent
accounting firm shall be borne one-half by E-Z Serve and one-half by the
Shareholders.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed as of the date first above written.
/s/ Xxxxx Xxxx Xxxxxx
----------------------------------------
Xxxxx Xxxx Xxxxxx
XXXXX XXXXXX XXXXXX TRUST
By: Xxxxxxx X. Xxxxxxxxx, Trustee
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
APRIL XXXXXXX XXXXXX TRUST
By: Xxxxxxx X. Xxxxxxxxx, Trustee
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
E-Z SERVE CORPORATION
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
The undersigned, being the spouse of Xxxxx Xxxx Xxxxxx, joins in the
execution of this Agreement to evidence her knowledge of its existence and
content, to acknowledge that this Agreement is fair, equitable and in her best
interests, and to bind her community interest, if any, and her heirs,
beneficiaries, assigns, executors, administrators and legal representatives to
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the covenants, agreements, terms and conditions contained in this Agreement, as
it may be amended from time to time.
/s/ Xxxxxx Xxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxx Xxxxxx
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