EXHIBIT 10.22
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement ("Agreement") is made as of
December 31, 2002, by and between OFFSHORE AVIATION INC., a Delaware corporation
("Buyer") and XXXXXX X. XXXXX, an individual resident of Houston, Texas
("Seller").
RECITALS
Seller owns Eight Hundred (800) shares, being eighty percent (80%) of
the issued and outstanding shares and other securities and rights and claims
with respect thereto of TEX-AIR HELICOPTERS, INC., a Texas corporation
("Company"); and
Seller desires to sell and Buyer desires to purchase, Eight Hundred
(800) shares together with all of the securities and rights and claims with
respect thereto of Seller's interest in the Company (the "Securities"), for the
consideration and on the terms set forth in this Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1:
"AFFILIATE"-- "Affiliate" of any Person means any other Person which, directly
or indirectly, owns or controls, is under common ownership or control with, or
is owned or is controlled by such Person and in the case of individuals shall
include immediate family members.
"AIRCRAFT"--any aircraft or helicopters of any kind.
"APPLICABLE CONTRACT"--any Contract (a) under which the Company has or may
acquire any rights, (b) under which the Company has or may become subject to any
obligation or liability, or (c) by which the Company or any of the assets owned
or used by it is or may become bound.
"AUTHORIZED SHARES"--as defined in Section 3.3.
"BALANCE SHEET"--as defined in Section 3.5 of this Agreement.
"BEST EFFORTS"--the efforts that a prudent Person desirous of achieving a result
would use in similar circumstances to ensure that such result is achieved as
expeditiously as possible.
"BREACH"--a "Breach" of a representation, warranty, covenant, obligation, or
other provision of this Agreement or any instrument delivered pursuant to this
Agreement will be deemed to have occurred if there is or has been (a) any
inaccuracy in or breach of, or any failure to perform or comply with, such
representation, warranty, covenant, obligation, or other provision, or (b) any
claim (by any Person) or other occurrence or circumstance that is or was
inconsistent with such representation, warranty, covenant, obligation, or other
provision, and the term "Breach" means any such inaccuracy, breach, failure,
claim, occurrence, or circumstance.
"BUYER"--as defined in the first paragraph of this Agreement.
"BUYER ADVISORS"--as defined in Section 5.1 of this Agreement.
"CLOSING"--as defined in Section 2.3.
"CLOSING DATE"--the date and time as of which the Closing actually takes place.
"COMPANY"--as defined in the Recitals of this Agreement.
"CONSENT"--any approval, consent, ratification, waiver, or other authorization
(including any Governmental Authorization).
"CONTEMPLATED TRANSACTIONS"--all of the transactions contemplated by this
Agreement, including:
(a) the sale of the Securities by the Seller to Buyer under this Agreement;
(b) the performance by Buyer and Seller of their respective covenants and
obligations under this Agreement; and
(c) Buyer's acquisition and ownership of the Securities, and exercise of control
over the Company.
"CONTRACT"--any agreement, contract, obligation, promise, or undertaking
(whether written or oral and whether express or implied) that is legally
binding.
"DAMAGES"--as defined in Section 10.2.
"DISCLOSURE SCHEDULES"--the disclosure schedules delivered by Seller to Buyer
concurrently with the execution and delivery of this Agreement.
"EBITDA"- Earnings before Interest, Taxes, Depreciation and Amortization. The
financial statements used to calculate EBITDA shall be prepared in accordance
with Generally Accepted Accounting Principles.
"EMPLOYMENT AGREEMENTS"--as defined in Section 5.8.
2
"ENCUMBRANCE"--any charge, claim, community property interest, condition,
equitable interest, lien, option, pledge, security interest, right of first
refusal, or restriction of any kind, including any restriction on use, voting,
transfer, receipt of income, or exercise of any other attribute of ownership.
"ENVIRONMENT"--soil, land surface or subsurface strata, surface waters
(including navigable waters, ocean waters, streams, ponds, drainage basins, and
wetlands), groundwaters, drinking water supply, stream sediments, ambient air
(including indoor air), plant and animal life, and any other environmental
medium or natural resource.
"ENVIRONMENTAL, HEALTH, AND SAFETY LIABILITIES"--any cost, damages, expense,
liability, obligation, or other responsibility arising from or under
Environmental Law or Occupational Safety and Health Law and consisting of or
relating to:
(a) any environmental, health, or safety matters or conditions (including
on-site or off-site contamination, occupational safety and health, and
regulation of chemical substances or products);
(b) fines, penalties, judgments, awards, settlements, legal or administrative
proceedings, damages, losses, claims, demands and response, investigative,
remedial, or inspection costs and expenses arising under Environmental Law or
Occupational Safety and Health Law;
(c) financial responsibility under Environmental Law or Occupational Safety and
Health Law for cleanup costs or corrective action, including any investigation,
cleanup, removal, containment, or other remediation or response actions
("Cleanup") required by applicable Environmental Law or Occupational Safety and
Health Law (whether or not such Cleanup has been required or requested by any
Governmental Body or any other Person) and for any natural resource damages; or
(d) any other compliance, corrective, investigative, or remedial measures
required under Environmental Law or Occupational Safety and Health Law.
The terms "removal", "remedial", and "response action include the types of
activities covered by the United States Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. ' 9601 et seq., as amended
("CERCLA").
"ENVIRONMENTAL LAW"--any Legal Requirement that requires or relates to:
(a) advising appropriate authorities, employees, and the public of intended or
actual releases of pollutants or hazardous substances or materials, violations
of discharge limits, or other prohibitions and of the commencements of
activities, such as resource extraction or construction, that could have
significant impact on the Environment;
(b) preventing or reducing to acceptable levels the release of pollutants or
hazardous substances or materials into the Environment;
3
(c) reducing the quantities, preventing the release, or minimizing the hazardous
characteristics of wastes that are generated;
(d) assuring that products are designed, formulated, packaged, and used so that
they do not present unreasonable risks to human health or the Environment when
used or disposed of;
(e) protecting resources, species, or ecological amenities;
(f) reducing to acceptable levels the risks inherent in the transportation of
hazardous substances, pollutants, oil, or other potentially harmful substances;
(g) cleaning up pollutants that have been released, preventing the threat of
release, or paying the costs of such clean up or prevention; or
(h) making responsible parties pay private parties, or groups of them, for
damages done to their health or the Environment, or permitting self-appointed
representatives of the public interest to recover for injuries done to public
assets.
"FACILITIES"--any real property, leaseholds, or other interests currently or
formerly owned or operated by the Company and any buildings, plants, structures,
or equipment of any type thereon or any motor vehicles (other than any Aircraft)
currently or formerly owned or operated by the Company.
"FINAL BALANCE SHEET"--as defined in Section 2.2.
"GAAP"--generally accepted United States accounting principles, applied on a
basis consistent with the basis on which the Balance Sheet and the other
financial statements referred to in Section 3.4 were prepared.
"GOVERNMENTAL AUTHORIZATION"--any approval, order, consent, license, permit,
franchise, filling, waiver, or other authorization issued, granted, given, or
otherwise made available by or under the authority of any Governmental Body or
pursuant to any Legal Requirement.
"GOVERNMENTAL BODY"--any:
(a) nation, state, county, city, town, village, district, or other jurisdiction
of any nature;
(b) federal, state, local, municipal, foreign, or other government;
(c) governmental or quasi-governmental authority of any nature (including any
governmental agency, branch, department, official, or entity and any court or
other tribunal);
(d) multi-national organization or body; or
4
(e) body exercising, or entitled to exercise, any administrative, executive,
judicial, legislative, police, regulatory, or taxing authority or power of any
nature.
"HAZARDOUS ACTIVITY"--the distribution, generation, handling, importing,
management, manufacturing, processing, production, refinement, Release, storage,
transfer, transportation, treatment, or use (including any withdrawal or other
use of groundwater) of Hazardous Materials in, on, under, about, or from the
Facilities or any part thereof into the Environment, and any other act,
business, operation, or thing that increases the danger, or risk of danger, or
poses an unreasonable risk of harm to persons or property on or off the
Facilities, or that may affect the value of the Facilities or the Company.
"HAZARDOUS MATERIALS"--any waste or other substance that is listed, defined,
designated, or classified as, or otherwise determined to be, hazardous,
radioactive, or toxic or a pollutant or a contaminant under or pursuant to any
Environmental Law, including any admixture or solution thereof, and specifically
including petroleum and all derivatives thereof or synthetic substitutes
therefore and asbestos or asbestos-containing materials.
"INTELLECTUAL PROPERTY ASSETS" --as defined in Section 3.18.
"IRC"--the Internal Revenue Code of 1986, as amended, or any successor law, and
regulations issued by the IRS pursuant to the Internal Revenue Code or any
successor law.
"IRS"--the United States Internal Revenue Service or any successor agency, and,
to the extent relevant, the United States Department of the Treasury.
"ISSUED SHARES"--as defined in Section 3.3.
"KNOWLEDGE"--an individual will be deemed to have "Knowledge" of a particular
fact or other matter if:
(a) such individual is actually aware of such fact or other matter; or
(b) a prudent individual could be expected to discover or otherwise become aware
of such fact or other matter in the course of conducting a reasonably
comprehensive investigation concerning the existence of such fact or other
matter.
A Person (other than an individual) will be deemed to have "Knowledge" of a
particular fact or other matter if any individual who is serving, or who has at
any time served, as a director, officer, partner, executor, trustee or agent of
such Person (or in any similar capacity) has, or at any time had, Knowledge of
such fact or other matter.
"LEGAL REQUIREMENT"--any federal, state, local, municipal, foreign,
international, multinational, or other administrative order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty.
5
"OCCUPATIONAL SAFETY AND HEALTH LAW"--any Legal Requirement designed to provide
safe and healthful working conditions and to reduce occupational safety and
health hazards, and any program, whether governmental or private (including
those promulgated or sponsored by industry associations and insurance
companies), designed to provide safe and healthful working conditions.
"ORDER"--any award, decision, injunction, judgment, order, ruling, subpoena, or
verdict entered, issued, made, or rendered by any court, administrative agency,
or other Governmental Body or by any arbitrator.
"ORDINARY COURSE OF BUSINESS"--an action taken by a Person will be deemed to
have been taken in the "Ordinary Course of Business" only if:
(a) such action is consistent with the past practices of such Person and is
taken in the ordinary course of the normal day-to-day operations of such Person;
(b) such action is not required to be authorized by the shareholders, board of
directors of such Person (or by any Person or group of Persons exercising
similar authority); and
(c) such action is similar in nature and magnitude to actions customarily taken,
without any authorization by the board of directors (or by any Person or group
of Persons exercising similar authority), in the ordinary course of the normal
day-to-day operations of other Persons that are in the same line of business as
such Person.
"ORGANIZATIONAL DOCUMENTS"--(a) the articles or certificate of incorporation and
the bylaws of a corporation; (b) the partnership agreement and any statement of
partnership of a general partnership; (c) the limited partnership agreement and
the certificate of limited partnership of a limited partnership; (d) any charter
or similar document adopted or filed in connection with the creation, formation,
or organization of a Person; and (e) any amendment to any of the foregoing.
"OTHER AGREEMENTS"--as defined in Section 3.2 of this Agreement.
"OUTSIDE CLOSING DATE"--as defined in Section 2.3.
"PURCHASE PRICE"--as defined in Section 2.2.
"PERSON"--any individual, corporation (including any non-profit corporation),
general or limited partnership, limited liability company, joint venture,
estate, trust, association, organization, labor union, or other entity or
Governmental Body.
"PROCEEDING"--any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
"RANCH PROPERTY"--Two parcels of property located in Xxxxxx and Xxxxxxx
Counties, Texas, with one parcel consisting of approximately 1,944.72 acres in
6
Xxxxxx County and the second parcel consisting of approximately 1,165.22 acres
in Xxxxxx and Xxxxxxx. Such property shall be deemed to include improvements and
incidental equipment and vehicles regularly kept on the property, along with the
specific equipment listed on or referred to in Schedule 11.1 hereto.
"RELATED PERSON"--with respect to a particular individual:
(a) each other member of such individual's Family;
(b) any Person that is directly or indirectly controlled by such individual or
one or more members of such individual's Family;
(c) any Person in which such individual or members of such individual's Family
hold (individually or in the aggregate) a Material Interest; and
(d) any Person with respect to which such individual or one or more members of
such individual's Family serves as a director, officer, partner, executor, or
trustee (or in a similar capacity).
With respect to a specified Person other than an individual:
(a) any Person that directly or indirectly controls, is directly or indirectly
controlled by, or is directly or indirectly under common control with such
specified Person;
(b) any Person that holds a Material Interest in such specified Person;
(c) each Person that serves as a director, officer, partner, executor, or
trustee of such specified Person (or in a similar capacity);
(d) any Person in which such specified Person holds a Material Interest;
(e) any Person with respect to which such specified Person serves as a general
partner or a trustee (or in a similar capacity); and
(f) any Related Person of any individual described in clause (b) or (c).
For purposes of this definition, (a) the "Family" of an individual includes (i)
the individual, (ii) the individual's spouse and former spouses, (iii) any other
natural person who is related to the individual or the individual's spouse
within the second degree, and (iv) any other natural person who resides with
such individual, and (b) "Material Interest" means direct or indirect beneficial
ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934)
of voting securities or other voting interests representing at least 20% of the
outstanding voting power of a Person or equity securities or other equity
interests representing at least 20% of the outstanding equity securities or
equity interests in a Person.
"RELEASE"--any spilling, leaking, emitting, discharging, depositing, escaping,
leaching, dumping, or other releasing into the Environment, whether intentional
or unintentional.
7
"REPRESENTATIVE"--with respect to a particular Person, any director, officer,
employee, agent, consultant, advisor, or other representative of such Person,
including legal counsel, accountants, and financial advisors.
"SECURITIES"-- as defined in the opening recitals of this Agreement.
"SECURITIES ACT"--the Securities Act of 1933, as amended, or any successor law,
and regulations and rules issued pursuant to that Act or any successor law.
"SECURITIES EXCHANGE ACT"--the Securities Exchange Act of 1934, as amended, or
any successor law and regulations and rules issued pursuant to that Act or any
successor law.
"SELLER"--as defined in the first paragraph of this Agreement and his respective
heirs, personal representatives, successors, assigns, and transferees.
"SELLER'S RELEASES"--as defined in Section 2.4.
"SHAREHOLDER EQUITY"--The amount determined in accordance with GAAP and
reflected in the balance sheet of the Company as shareholder equity.
"SUBSIDIARY"--with respect to any Person (the "Owner"), any corporation or other
Person of which securities or other interests having the power to elect a
majority of that corporation's or other Person's board of directors or similar
governing body, or otherwise having the power to direct the business and
policies of that corporation or other Person (other than securities or other
interests having such power only upon the happening of a contingency that has
not occurred) are held by the Owner or one or more of its Subsidiaries; when
used without reference to a particular Person, "Subsidiary" means a Subsidiary
of the Company.
"TAX RETURN"--any return (including any information return), report, statement,
schedule, notice, form, or other document or information filed with or submitted
to, or required to be filed with or submitted to, any Governmental Body in
connection with the determination, assessment, collection, or payment of any Tax
or in connection with the administration, implementation, or enforcement of or
compliance with any Legal Requirement relating to any Tax.
"THREAT OF RELEASE"--a substantial likelihood of a Release that may require
action in order to prevent or mitigate damage to the Environment that may result
from such Release.
"THREATENED"--a claim, Proceeding, dispute, action, or other matter will be
deemed to have been "Threatened" if any demand or statement has been made
(orally or in writing) or any notice has been given (orally or in writing), or
if any other event has occurred or any other circumstances exist, that would
8
lead a prudent Person to conclude that such a claim, Proceeding, dispute,
action, or other matter is likely to be asserted, commenced, taken, or otherwise
pursued in the future.
2. SALE AND TRANSFER OF SECURITIES; CLOSING
2.1 SECURITIES
Subject to the terms and conditions of this Agreement, at the
Closing, Seller will sell, transfer, convey, and assign his right, title and
interest in the Securities to Buyer, and Buyer will purchase the Securities from
Seller.
2.2 PURCHASE PRICE
(a) The purchase price (the "Purchase Price") for the Securities will
be:
(1) 68,292 shares of common stock in SEACOR SMIT Inc. (trading
symbol CKH-NYSE) (as such shares may be subsequently adjusted for
stock splits, reverse stock splits, stock dividends, and any
shares of stock issued as a result of a merger of SEACOR SMIT
Inc. and another entity in which SEACOR SMIT Inc. is not the
surviving entity, the "Seacor Shares"), and
(2) Seller will have the opportunity to receive additional
consideration (the "Earnout") based upon certain performance
standards of the Company during the 24 month period after Closing
(the "Earnout Period"). The Earnout shall be based on the
improvement in performance from a base EBITDA and shall be equal
to 50% of the excess of "Earnout EBITDA" (as hereinafter defined)
for the Earnout Period over the "Base EBITDA" (as hereinafter
defined) for the Earnout Period, subject to a minimum payment of
$250,000 and a maximum payment of $900,000, as adjusted pursuant
to the provisions of subparagraph (c) below. "Earnout EBITDA"
shall mean the EBITDA for the Company for the Earnout Period
derived from the Company's existing operations and shall exclude
earnings derived from investments in additional equipment or
acquisitions for the Company. If any of the Company's equipment
is sold during the Earnout Period the parties will adjust the
Earnout EBITDA on a mutually agreeable basis. "Base EBITDA" shall
mean $5,600,000 and shall be calculated in the same manner as
Earnout EBITDA. Within 45 days following the end of the Earnout
Period, the Company will provide the calculation of the Earnout
to the Seller and will provide any supporting documentation
reasonably requested by the Seller. The Seller shall have 15 days
from receipt thereof to review the calculations and approve the
Earnout calculations. In the event that the Seller does not agree
with the calculations, then the parties shall hire
PricewaterhouseCoopers LLP to compute the Earnout. and that
computation shall be binding, final and not subject to appeal or
further review by either party. The payment of the Earnout will
9
be delayed until such computation is complete. For the purposes
of calculating the Earnout, in the event of a change in the
Company's accounting policies, EBITDA will be calculated using
the historical accounting policies.
(b) The Seacor Shares shall be registered shares from Buyer's
parent's current acquisition shelf Registration Statement and
trading of such shares shall not be subject to holding or notice
periods other than those which may be applicable by operation of
law, or as a result of the application of SEACOR SMIT Inc.'s
xxxxxxx xxxxxxx policy.
(c) No Earnout shall be payable by Buyer in the event the value of
the Seacor Shares issued to Seller under subparagraph (a) (1)
above appreciates, by means of the calculations described herein
(the "Share Appreciation Value"), by $900,000. The maximum
Earnout payment of $900,000 shall be reduced by any such Share
Appreciation Value. In the event that the Share Appreciation
Value exceeds $650,000, the minimum Earnout payment shall also be
reduced. The Share Appreciation Value shall be calculated by
adding the sum of (i) the Maximum Value (as hereinafter defined)
of 42,683 Seacor Shares; (ii) the Realized Value (as defined
below) of any Seacor Shares, up to a maximum of 10,243 Seacor
Shares, that may be sold by the Seller; and (iii) the Maximum
Value of any remaining Seacor Shares issued pursuant to this
transaction and not included in (i) or (ii) above. Realized Value
shall be defined as the number of Seacor Shares sold by Seller
multiplied by their actual gross selling price, assuming an arms'
length transaction with a registered broker/dealer. Maximum Value
shall be defined as the number of shares multiplied by the
difference of the lowest closing price of the ten highest closing
prices within the Earnout Period, less $41.00.
(d) Any Earnout payable under this Section will be paid to Seller
annually, in one-third increments, commencing on the third
anniversary date of the Closing. Any such Earnout payable will be
calculated in dollars, but paid to Seller in whole shares of
Seacor common stock, at a share price equal to the average Seacor
common stock price at the close of trading for the 20 calendar
days immediately preceding payment, with any necessary adjustment
for fractional shares paid in cash.
2.3 CLOSING
The purchase and sale (the "Closing") provided for in this Agreement
will take place at the offices of Buyer's counsel Bell, Ryniker, Xxxxxxxxxx and
Xxxx, P.C., 0000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 at 10:00 a.m., on
a date to be determined by mutual agreement of the parties, but not later in any
event than December 31, 2002 (the "Outside Closing Date"). Subject to the
provisions of Section 9, failure to consummate the purchase and sale provided
for in this Agreement on the date and time and at the place determined pursuant
10
to this Section 2.3 will not result in the termination of this Agreement and
will not relieve any party of any obligation under this Agreement.
2.4 CLOSING OBLIGATIONS
At the Closing:
(a) Seller will deliver, convey, transfer and assign to Buyer:
(i) certificates representing the Shares in the name of Buyer;
(ii) all other Securities, including promissory notes and warrants
issued by the Company; and
(iii) the written resignation of all directors of the Company;
(iv) the minute books and equity interest transfer records relating to
the Company, together with originals of all Company books and
records, including accounting records and business records of
every kind;
(v) all such documents, agreements or instruments as Buyer shall deem
reasonably necessary to Buyer to exercise control over the
Company's bank and deposit accounts and other arrangement pursuant
to which third parties hold, receive or disburse securities, cash
property or rights, including, but not limited to signature cards
for the Company's demand accounts; and
(vii) a release for the benefit of the Company and the Buyer, waiving
and forever releasing any claim, right or cause of action Seller
may have against or with respect to the Company or binding upon
any of the assets of the Company; and
(viii) a certificate executed by Seller representing and warranting to
Buyer that each of Seller's representations and warranties in this
Agreement was accurate in all respects as of the date of this
Agreement and is accurate in all respects as of the Closing Date
as if made on the Closing Date (giving full effect to any
supplements to the Disclosure Schedules that were delivered by
Seller to Buyer prior to the Closing Date in accordance with
Section 5.5); and
(b) Buyer will deliver to Seller:
(i) the Purchase Price; and
(ii) a certificate executed by Buyer to the effect that, except as
otherwise stated in such certificate, each of Buyer's
representations and warranties in this Agreement was accurate in
all respects as of the date of this Agreement and is accurate in
all respects as of the Closing Date as if made on the Closing
Date.
11
2.5 ESCROW
As security for Seller's obligations under this Agreement and that
certain Employment Agreement between Seller and the Company, of even date, 6097
shares of the Seacor Shares (the "Remaining Shares") from the Purchase Price
shall be placed in escrow at Closing, for a period of eighteen months, with
Xxxxxxx X. Xxxx (the "Escrow Agent") pursuant to an escrow agreement
substantially in the form attached hereto as Exhibit 2.5 (the "Escrow
Agreement"). The Escrow Agreement will provide for the release of the Remaining
Shares to Seller on the eighteenth month anniversary date of the Closing,
subject to the terms of the Escrow Agreement.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 ORGANIZATION AND GOOD STANDING
(a) The Company is a corporation duly organized, validly existing, and in good
standing under the laws of its jurisdiction of incorporation, with full
corporate power and authority to conduct its business as it is now being
conducted, to own or use the properties and assets that it purports to own or
use, and to perform all its obligations under Applicable Contracts. The Company
is duly qualified to do business as a foreign corporation and is in good
standing under the laws of each state or other jurisdiction in which either the
ownership or use of the properties owned or used by it, or the nature of the
activities conducted by it, requires such qualification. The Company has no
Subsidiaries.
(b) Seller has delivered to Buyer complete and accurate copies of the
Organizational Documents of the Company, as currently in effect.
3.2 AUTHORITY; NO CONFLICT
(a) This Agreement constitutes the legal, valid, and binding obligation of
Seller, enforceable against Seller in accordance with its terms. Upon the
execution and delivery by Seller of this Agreement and each of the other
agreements required to be entered into by the Seller pursuant to the terms and
conditions of this Agreement including without limitation the Escrow Agreement
and the Employment Agreement ("Other Agreements"), said Other Agreements will
constitute the legal, valid, and binding obligations of Seller, enforceable
against Seller in accordance with their respective terms. Seller has the
absolute and unrestricted right, power, authority, and capacity to execute and
deliver this Agreement and the Other Agreements and to perform their obligations
under this Agreement and the Other Agreements.
(b) Except as set forth in Schedule 3.2, neither the execution and delivery of
this Agreement nor the Other Agreements nor the consummation or performance of
any of the Contemplated Transactions will, directly or indirectly (with or
without notice or lapse of time):
12
(i) contravene, conflict with, or result in a violation of (A) any
provision of the Organizational Documents of the Company, or (B)
any resolution adopted by the board of directors or the
stockholders of the Company;
(ii) to the knowledge of Seller, contravene, conflict with, or result
in a violation of, or give any Governmental Body or other Person
the right to challenge any of the Contemplated Transactions or to
exercise any remedy or obtain any relief under, any Legal
Requirement or any Order to which the Company or either Seller, or
any of the assets owned or used by the Company, may be subject;
(iii) contravene, conflict with, or result in a violation or breach of
any provision of, or give any Person the right to declare a
default or exercise any remedy under, or to accelerate the
maturity or performance of, or to cancel, terminate, or modify,
any Applicable Contract; or
(iv) result in the imposition or creation of any Encumbrance upon or
with respect to any of the Securities or assets owned or used by
the Company.
Except as set forth in Schedule 3.2, neither Seller nor the Company is or will
be required to give any notice to or obtain any Consent from any Person in
connection with the execution and delivery of this Agreement or the consummation
or performance of any of the Contemplated Transactions.
3.3 CAPITALIZATION AND FINANCIAL STRUCTURE
The authorized equity securities of the Company consist of One
Hundred Thousand (100,000) shares of common stock, no par value per share (the
"Authorized Shares"), of which One Thousand (1000) shares are issued and
outstanding (the "Issued Shares"). Other than those previously issued to Buyer,
there are no warrants, options, or other Securities of the Company which are in
effect. Seller is and will be on the Closing Date, the record and beneficial
owner and holder of Eight Hundred (800) shares of the Issued Shares, free and
clear of all Encumbrances. No legend or other reference to any purported
Encumbrance appears upon any certificate representing equity securities of the
Company. All of the Issued Shares have been duly authorized and validly issued
and are fully paid and non-assessable. None of the outstanding equity securities
or other Securities of the Company was issued in violation of the Securities Act
or any other Legal Requirement.
3.4 BOOKS AND RECORDS
The books of account, minute books, stock record books, and other
records of the Company, all of which have been made available to Buyer, are
complete and correct. The minute books of the Company contain accurate and
complete records of all meetings held of, and corporate action taken by, the
stockholders, the Boards of Directors, and committees of the Boards of Directors
13
of the Company, and no meeting of any such stockholders, Board of Directors, or
committee has been held for which minutes have not been prepared and are not
contained in such minute books. At the Closing, all of such books and records
will be in the possession of the Company.
3.5 TITLE TO PROPERTIES; ENCUMBRANCES
Schedule 3.5 contains a complete and accurate list of all real
property, leaseholds, or other interests therein owned by the Company. Seller
has delivered or made available to Buyer copies of the deeds and other
instruments (as recorded) by which the Company acquired such real property and
interests, and copies of all title insurance policies, opinions, abstracts, and
surveys in the possession of Seller or the Company and relating to such property
or interests. The Company owns (with good and marketable title in the case of
real property, subject only to the matters permitted by the following sentence)
all the properties and assets (whether real, personal, or mixed and whether
tangible or intangible) that they purport to own located in the Facilities owned
or operated by the Company or reflected as owned in the books and records of the
Company, including all of the properties and assets reflected in the balance
sheet of the Company attached to Schedule 3.5 (the "Balance Sheet") (except for
assets held under capitalized leases disclosed or not required to be disclosed
in Schedule 3.5, and personal property sold since the date of the Balance Sheet
in the Ordinary Course of Business), and all of the properties and assets
purchased or otherwise acquired by the Company since the date of the Balance
Sheet (except for personal property acquired and sold since the date of the
Balance Sheet in the Ordinary Course of Business and consistent with past
practice), which subsequently purchased or acquired properties and assets (other
than inventory and short-term investments) are listed in Schedule 3.6. All
material properties and assets reflected in the Balance Sheet are free and clear
of all Encumbrances and are not, in the case of real property, subject to any
rights of way, building use restrictions, exceptions, variances, reservations,
or limitations of any nature except, with respect to all such properties and
assets, (a) mortgages or security interests shown on the Balance Sheet as
securing specified liabilities or obligations, with respect to which no default
(or event that, with notice or lapse of time or both, would constitute a
default) exists, (b) mortgages or security interests incurred in connection with
the purchase of property or assets after the date of the Balance Sheet (such
mortgages and security interests being limited to the property or assets so
acquired), with respect to which no default (or event that, with notice or lapse
of time or both, would constitute a default) exists, (c) liens for current taxes
not yet due, and (d) with respect to real property, (i) minor imperfections of
title, if any, none of which is substantial in amount, materially detracts from
the value or impairs the use of the property subject thereto, or impairs the
operations of the Company, and (ii) zoning laws and other land use restrictions
that do not impair the present or anticipated use of the property subject
thereto. All buildings, plants, and structures owned by the Company lie wholly
within the boundaries of the real property owned by the Company and do not
encroach upon the property of, or otherwise conflict with the property rights
of, any other Person.
3.6 NO UNDISCLOSED LIABILITIES
Except as set forth in Schedule 3.6, to the knowledge of Seller, the
Company has no liabilities or obligations of any nature (whether known or
14
unknown and whether absolute, accrued, contingent, or otherwise) except for
liabilities or obligations reflected or reserved against in the Balance Sheet
and current liabilities incurred in the Ordinary Course of Business since the
respective dates thereof.
3.7 TAXES
(a) The Company has filed or caused to be filed (on a timely basis since January
1, 1998) all Tax Returns that are or were required to be filed, pursuant to
applicable Legal Requirements. Seller has delivered or made available to Buyer
copies of, and Schedule 3.7 contains a complete and accurate list of, all such
Tax Returns relating to income or franchise taxes filed since January 1, 1998.
The Company has paid, or made provision for the payment of, all Taxes that have
or may have become due pursuant to those Tax Returns or otherwise, or pursuant
to any assessment received by Seller or the Company, except such Taxes, if any,
as are listed in Schedule 3.7 and are being contested in good faith and as to
which adequate reserves (determined in accordance with GAAP) have been provided
in the Balance Sheet.
(b) The United States federal and state income Tax Returns of the Company
subject to such Taxes have been audited by the IRS or relevant state tax
authorities or are closed by the applicable statute of limitations for all
taxable years through 1998. Schedule 3.7 contains a complete and accurate list
of all audits of all such Tax Returns, including a reasonably detailed
description of the nature and outcome of each audit. All deficiencies proposed
as a result of such audits have been paid, reserved against, settled, or, as
described in Schedule 3.7, are being contested in good faith by appropriate
proceedings. Schedule 3.7 describes all adjustments to the United States federal
income Tax Returns filed by the Company for all taxable years since 1998, and
the resulting deficiencies proposed by the IRS. Except as described in Schedule
3.7, no Seller or the Company has given or been requested to give waivers or
extensions (or is or would be subject to a waiver or extension given by any
other Person) of any statute of limitations relating to the payment of Taxes for
which the Company may be liable.
(c) The charges, accruals, and reserves with respect to Taxes on the respective
books of the Company are adequate (determined in accordance with GAAP) and are
at least equal to the Company's liability for Taxes. There exists no proposed
tax assessment against the Company except as disclosed in the Balance Sheet or
in Schedule 3.7. No consent to the application of Section 341(f)(2) of the IRC
has been filed with respect to any property or assets held, acquired, or to be
acquired by the Company. All Taxes that the Company is or was required by Legal
Requirements to withhold or collect have been duly withheld or collected and, to
the extent required, have been paid to the proper Governmental Body or other
Person.
(d) All Tax Returns filed by (or that include on a consolidated basis) the
Company are true, correct, and complete. There is no tax sharing agreement that
will require any payment by the Company after the date of this Agreement. The
Company is not, or within the five-year period preceding the Closing Date has
been, an "S" corporation. During the consistency period (as defined in Section
338(h)(4) of the IRC with respect to the sale of the Shares to Buyer), neither
the Company or target affiliate (as defined in Section 338(h)(6) of the IRC with
15
respect to the sale of the Shares to Buyer) has sold or will sell any property
or assets to Buyer or to any member of the affiliated group (as defined in
Section 338(h)(5) of the IRC) that includes Buyer. Schedule 3.7 lists all such
target affiliates.
3.8 NO MATERIAL ADVERSE CHANGE
The Balance Sheet fairly and accurately shows the financial condition
of the Company as of the date of the Balance Sheet. Except as disclosed in
Schedule 3.8 hereto, since the date of the Balance Sheet, there has not been any
material adverse change in the business, operations, properties, prospects,
assets, or condition of the Company, and no event has occurred or circumstance
exists that may result in such a material adverse change.
3.9 EMPLOYEE BENEFITS
Except as set forth in Schedule 3.9, the Company does not have any
collective bargaining, labor, profit sharing, pension, retirement, stock option,
incentive, benefit, or other similar contract plan or arrangement. The Company
does not sponsor, nor is it obligated to contribute to any employee benefit plan
(as such term is defined in Section 3(3) of the Employment Retirement Income
Security Act of 1974, as amended.
3.10 COMPLIANCE WITH LEGAL REQUIREMENTS; GOVERNMENTAL AUTHORIZATIONS
(a) Except as set forth in Schedule 3.10,
(i) the Company is, and at all times since March 22, 1988 has been, in
full compliance with each Legal Requirement that is or was
applicable to it or to the conduct or operation of its business or
the ownership or use of any of its assets;
(ii) no event has occurred or circumstance exists that (with or without
notice or lapse of time) (A) may constitute or result in a
violation by the Company of, or a failure on the part of the
Company to comply with, any Legal Requirement, or (B) may give
rise to any obligation on the part of the Company to undertake, or
to bear all or any portion of the cost of, any remedial action of
any nature; and
(iii) the Company has not received, at any time since March 22, 1988,
any notice or other communication (whether oral or written) from
any Governmental Body or any other Person regarding (A) any
actual, alleged, possible, or potential violation of, or failure
to comply with, any Legal Requirement, or (B) any actual, alleged,
possible, or potential obligation on the part of the Company to
undertake, or to bear all or any portion of the cost of, any
remedial action of any nature.
(b) Schedule 3.10 contains a complete and accurate list of each Governmental
Authorization that is held by the Company or that otherwise relates to the
16
business of, or to any of the assets owned or used by, the Company. Each
Governmental Authorization listed or required to be listed in Schedule 3.11 is
valid and in full force and effect. Except as set forth in Schedule 3.10:
(i) the Company is, and at all times since March 22, 1988 has been, in
full compliance with all of the terms and requirements of each
Governmental Authorization identified or required to be identified
in Schedule 3.10;
(ii) no event has occurred or circumstance exists that may (with or
without notice or lapse of time) (A) constitute or result directly
or indirectly in a violation of or a failure to comply with any
term or requirement of any Governmental Authorization listed or
required to be listed in Schedule 3.10, or (B) result directly or
indirectly in the revocation, withdrawal, suspension,
cancellation, or termination of, or any modification to, any
Governmental Authorization listed or required to be listed in
Schedule 3.10.
(iii) the Company has not received, at any time since March 22, 1988,
any notice or other communication (whether oral or written) from
any Governmental Body or any other Person regarding (A) any
actual, alleged, possible, or potential violation of or failure to
comply with any term or requirement of any Governmental
Authorization, or (B) any actual, proposed, possible, or potential
revocation, withdrawal, suspension, cancellation, termination of,
or modification to any Governmental Authorization; and
(iv) all applications required to have been filed for the renewal of
the Governmental Authorizations listed or required to be listed in
Schedule 3.10 have been duly filed on a timely basis with the
appropriate Governmental Bodies, and all other filings required to
have been made with respect to such Governmental Authorizations
have been duly made on a timely basis with the appropriate
Governmental Bodies.
The Governmental Authorizations listed in Schedule 3.10 collectively constitute
all of the Governmental Authorizations necessary to permit the Company to
lawfully conduct and operate its businesses in the manner it currently conducts
and operate such businesses and to permit the Company to own and use their
assets in the manner in which it currently own and use such assets.
3.11 LEGAL PROCEEDINGS; ORDERS
(a) Except as set forth in Schedule 3.11, there is no pending Proceeding to the
knowledge of Seller:
(i) that has been commenced by or against the Company or that
otherwise relates to or may affect the business of, or any of the
assets owned or used by, the Company; or
(ii) that challenges, or that may have the effect of preventing,
delaying, making illegal, or otherwise interfering with, any of
the Contemplated Transactions.
17
To the Knowledge of Seller and the Company, (1) no such Proceeding has been
Threatened, and (2) no event has occurred or circumstance exists that may give
rise to or serve as a basis for the commencement of any such Proceeding. Seller
has delivered or made available to Buyer copies of all pleadings,
correspondence, and other documents relating to each Proceeding listed in
Schedule 3.11.
(b) Except as set forth in Schedule 3.11:
(i) there is no Order to which the Company, or any of the assets owned
or used by the Company, is subject;
(ii) neither Seller is subject to any Order that relates to the
business of, or any of the assets owned or used by, the Company;
and
(iii) to the Knowledge of Seller and the Companies, no officer,
director, agent, or employee of the Company is subject to any
Order that prohibits such officer, director, agent, or employee
from engaging in or continuing any conduct, activity, or practice
relating to the business of the Company.
(c) Except as set forth in Schedule 3.11 to the knowledge of Seller:
(i) the Company is, and at all times since March 22, 1988, been in
full compliance with all of the terms and requirements of each
Order to which it, or any of the assets owned or used by it, is or
has been subject;
(ii) no event has occurred or circumstance exists that may constitute
or result in (with or without notice or lapse of time) a violation
of or failure to comply with any term or requirement of any Order
to which the Company, or any of the assets owned or used by the
Company, is subject; and
(iii) the Company has not received, at any time since March 22, 1988,
any notice or other communication (whether oral or written) from
any Governmental Body or any other Person regarding any actual,
alleged, possible, or potential violation of, or failure to comply
with, any term or requirement of any Order to which the Company,
or any of the assets owned or used by the Company, is or has been
subject.
3.12 ABSENCE OF CERTAIN CHANGES AND EVENTS
Except as set forth in Schedule 3.12, since the date of the Balance
Sheet, the Company has conducted its businesses only in the Ordinary Course of
Business and there has not been any:
(a) change in the Company's authorized or issued capital stock; grant of any
stock option or right to purchase shares of capital stock of the Company;
issuance of any security convertible into such capital stock; grant of any
registration rights; purchase, redemption, retirement, or other acquisition by
18
the Company of any shares of any such capital stock; or declaration or payment
of any dividend or other distribution or payment in respect of shares of capital
stock;
(b) amendment to the Organizational Documents of the Company;
(c) payment or increase by the Company of any bonuses, salaries, or other
compensation to any stockholder, director, officer, or (except in the Ordinary
Course of Business) employee or entry into any employment, severance, or similar
Contract with any director, officer, or employee;
(d) adoption of, or increase in the payments to or benefits under, any profit
sharing, bonus, deferred compensation, savings, insurance, pension, retirement,
or other employee benefit plan for or with any employees of the Company;
(e) damage to or destruction or loss of any asset or property of the Company,
whether or not covered by insurance, materially and adversely affecting the
properties, assets, business, financial condition, or prospects of the Company,
taken as a whole;
(f) entry into, termination of, or receipt of notice of termination of (i) any
license, distributorship, dealer, sales representative, joint venture, credit,
or similar agreement, or (ii) any Contract or transaction involving a total
remaining commitment by or to the Company of at least $250,000.00;
(g) sale (other than sales of inventory in the Ordinary Course of Business),
lease, or other disposition of any asset or property of the Company or mortgage,
pledge, or imposition of any lien or other encumbrance on any material asset or
property of the Company, including the sale, lease, or other disposition of any
of the Intellectual Property Assets;
(h) cancellation or waiver of any claims or rights with a value to the Company
in excess of $250,000.00;
(i) material change in the accounting methods used by the Company;
(j) material change in the present policies and practices of the Company;
(k) entering into any new property or equipment leases, or incurring additional
debt except for ordinary working capital; or
(l) agreement, whether oral or written, by the Company to do any of the
foregoing.
3.13 CONTRACTS; NO DEFAULTS
(a) Schedule 3.13(a) contains a complete and accurate list, and Seller has
delivered to or made available to Buyer true and complete copies, of:
19
(i) each Applicable Contract that involves performance of services or
delivery of goods or materials by the Company of an amount or
value in excess of $500,000.00;
(ii) each Applicable Contract that involves performance of services or
delivery of goods or materials to the Company of an amount or
value in excess of $500,000.00;
(iii) each Applicable Contract that was not entered into in the Ordinary
Course of Business and that involves expenditures or receipts by
the Company in excess of $100,000.00;
(iv) each lease, rental or occupancy agreement, license, installment
and conditional sale agreement, and other Applicable Contract
affecting the ownership of, leasing of, title to, use of, or any
leasehold or other interest in, any real or personal property
including without limitation any Aircraft (except personal
property leases and installment and conditional sales agreements
having a value per item or aggregate payments of less than
$100,000.00 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect
to patents, trademarks, copyrights, or other intellectual
property, including agreements with current or former employees,
consultants, or contractors regarding the appropriation or the
non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract
to or with any labor union or other employee representative of a
group of employees;
(vii) each joint venture, partnership, and other Applicable Contract
(however named) involving a sharing of profits, losses, costs, or
liabilities by any Acquired Company with any other Person;
(viii) each Applicable Contract containing covenants that in any way
purport to restrict the business activity of the Company or any
Affiliate of the Company or limit the freedom of the Company or
any Affiliate of the Company to engage in any line of business or
to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any
Person based on sales, purchases, or profits, other than direct
payments for goods;
(x) each power of attorney that is currently effective and
outstanding;
(xi) each Applicable Contract entered into other than in the Ordinary
Course of Business that contains or provides for an express
undertaking by the Company to be responsible for consequential
damages;
(xii) each Applicable Contract for capital expenditures in excess of
$250,000.00;
20
(xiii) each written warranty, guaranty, and or other similar undertaking
with respect to contractual performance extended by the Company
other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement, and modification (whether oral or
written) in respect of any of the foregoing.
Schedule 3.13(a) sets forth reasonably complete details concerning such
Contracts, including the parties to the Contracts, the amount of the remaining
commitment of the Company under the Contracts, and the Company office where
details relating to the Contracts are located.
(b) Except as set forth in Schedule 3.13(b):
(i) neither Seller (and no Related Person of either Seller) has or may
acquire any rights under, and neither Seller has or may become
subject to any obligation or liability under, any Contract that
relates to the business of, or any of the assets owned or used by,
the Company; and
(ii) no officer, director, agent, employee, consultant, or contractor
of the Company is bound by any Contract that purports to limit the
ability of such officer, director, agent, employee, consultant, or
contractor to (A) engage in or continue any conduct, activity, or
practice relating to the business of the Company, or (B) assign to
the Company or to any other Person any rights to any invention,
improvement, or discovery.
(c) Except as set forth in Schedule 3.13(c), each Contract identified or
required to be identified in Schedule 3.13(a) is in full force and effect and is
valid and enforceable in accordance with its terms.
(d) Except as set forth in Schedule 3.13(d):
(i) the Company is, and at all times since January 1, 1998, has been,
in full compliance with all applicable terms and requirements of
each Contract under which the Company has or had any obligation or
liability or by which the Company or any of the assets owned or
used by the Company is or was bound;
(ii) each other Person that has or had any obligation or liability
under any Contract under which the Company has or had any rights
is, and at all times since January 1, 1998, has been, in full
compliance with all applicable terms and requirements of such
Contract;
(iii) no event has occurred or circumstance exists that (with or without
notice or lapse of time) may contravene, conflict with, or result
in a violation or breach of, or give the Company or other Person
the right to declare a default or exercise any remedy under, or to
accelerate the maturity or performance of, or to cancel,
terminate, or modify, any Applicable Contract; and
21
(iv) the Company has not given to or received from any other Person, at
any time since January 1, 1998, any notice or other communication
(whether oral or written) regarding any actual, alleged, possible,
or potential violation or breach of, or default under, any
Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding
rights to renegotiate any material amounts paid or payable to the Company under
current or completed Contracts with any Person and no such Person has made
written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of
products or services by the Company have been entered into in the Ordinary
Course of Business and have been entered into without the commission of any act
alone or in concert with any other Person, or any consideration having been paid
or promised, that is or would be in violation of any Legal Requirement.
3.14 INSURANCE
(a) Seller has delivered to Buyer:
(i) true and complete copies of all policies of insurance to which the
Company is a party or under which the Company, or any director of
the Company, is or has been covered at any time within the five
years preceding the date of this Agreement;
(ii) true and complete copies of all pending applications for policies
of insurance; and
(iii) any statement by the auditor of the Company's financial statements
with regard to the adequacy of such entity's coverage or of the
reserves for claims.
(b) Schedule 3.14(b) describes:
(i) any self-insurance arrangement by or affecting the Company,
including any reserves established thereunder;
(ii) any contract or arrangement, other than a policy of insurance, for
the transfer or sharing of any risk by the Company; and
(iii) all obligations of the Company to third parties with respect to
insurance (including such obligations under leases and service
agreements) and identifies the policy under which such coverage is
provided.
(c) Schedule 3.14(c) sets forth, by year, for the current policy year and each
of the five preceding policy years:
(i) a summary of the loss experience under each policy;
22
(ii) a statement describing each claim under an insurance policy for an
amount in excess of $50,000.00, which sets forth:
(A) the name of the claimant;
(B) a description of the policy by insurer, type of insurance,
and period of coverage; and
(C) the amount and a brief description of the claim; and
(iii) a statement describing the loss experience for all claims that
were self-insured, including the number and aggregate cost of
such claims.
(d) Except as set forth on Schedule 3.14(d):
(i) All policies to which the Company is a party or that provide
coverage to Seller, the Company, or any director or officer of the
Company:
(A) are valid, outstanding, and enforceable;
(B) are issued by an insurer that is financially sound and
reputable;
(C) taken together, provide adequate insurance coverage for the
assets and the operations of the Company for all risks
normally insured against by a Person carrying on the same
business or businesses as the Company;
(D) are sufficient for compliance with all Legal Requirements
and Contracts to which the Company is a party or by which
any of them is bound;
(E) will continue in full force and effect following the
consummation of the Contemplated Transactions; and
(F) do not provide for any retrospective premium adjustment or
other experienced-based liability on the part of the
Company.
(ii) Neither Seller nor the Company has received (A) any refusal of
coverage or any notice that a defense will be afforded with
reservation of rights, or (B) any notice of cancellation or any
other indication that any insurance policy is no longer in full
force or effect or will not be renewed or that the issuer of any
policy is not willing or able to perform its obligations
thereunder.
(iii) The Company has paid all premiums due, and has otherwise performed
all of their respective obligations, under the policy to which the
Company is a party or that provides coverage to the Company or
director thereof.
(iv) The Company has given notice to the insurer of all claims that may
be insured thereby.
23
3.15 ENVIRONMENTAL MATTERS
Except as set forth in Schedule 3.15 to the knowledge of Seller:
(a) The Company is, and at all times has been, in full compliance with, and has
not been and is not in violation of or liable under, any Environmental Law.
Neither Seller nor the Company has any basis to expect, nor has any of them or
any other Person for whose conduct they are or may be held to be responsible
received, any actual or Threatened order, notice, or other communication from
(i) any Governmental Body or private citizen acting in the public interest, or
(ii) the current or prior owner or operator of any Facilities, of any actual or
potential violation or failure to comply with any Environmental Law, or of any
actual or Threatened obligation to undertake or bear the cost of any
Environmental, Health, and Safety Liabilities with respect to any of the
Facilities or any other properties or assets (whether real, personal, or mixed)
in which Seller or the Company has had an interest, or with respect to any
property or Facility at or to which Hazardous Materials were generated,
manufactured, refined, transferred, imported, used, or processed by Seller, the
Company, or any other Person for whose conduct they are or may be held
responsible, or from which Hazardous Materials have been transported, treated,
stored, handled, transferred, disposed, recycled, or received.
(b) There are no pending or, to the Knowledge of Seller and the Company,
Threatened claims, Encumbrances, or other restrictions of any nature, resulting
from any Environmental, Health, and Safety Liabilities or arising under or
pursuant to any Environmental Law, with respect to or affecting any of the
Facilities or any other properties and assets (whether real, personal, or mixed)
in which Seller or the Company has or had an interest.
(c) Neither Seller nor the Company has any basis to expect, nor has any of them
or any other Person for whose conduct they are or may be held responsible,
received, any citation, directive, inquiry, notice, Order, summons, warning, or
other communication that relates to Hazardous Activity, Hazardous Materials, or
any alleged, actual, or potential violation or failure to comply with any
Environmental Law, or of any alleged, actual, or potential obligation to
undertake or bear the cost of any Environmental, Health, and Safety Liabilities
with respect to any of the Facilities or any other properties or assets (whether
real, personal, or mixed) in which Seller or the Company had an interest, or
with respect to any property or facility to which Hazardous Materials generated,
manufactured, refined, transferred, imported, used, or processed by Seller, any
Acquired Company, or any other Person for whose conduct they are or may be held
responsible, have been transported, treated, stored, handled, transferred,
disposed, recycled, or received.
(d) Neither Seller nor the Company, or any other Person for whose conduct they
are or may be held responsible, has any Environmental, Health, and Safety
Liabilities with respect to the Facilities or with respect to any other
properties and assets (whether real, personal, or mixed) in which Seller or the
Company (or any predecessor), has or had an interest, or at any property
geologically or hydrologically adjoining the Facilities or any such other
property or assets.
24
(e) There are no Hazardous Materials present on or in the Environment at the
Facilities or at any geologically or hydrologically adjoining property,
including any Hazardous Materials contained in barrels, above or underground
storage tanks, landfills, land deposits, dumps, equipment (whether moveable or
fixed) or other containers, either temporary or permanent, and deposited or
located in land, water, sumps, or any other part of the Facilities or such
adjoining property, or incorporated into any structure therein or thereon.
Neither Seller, the Company, any other Person for whose conduct they are or may
be held responsible, or any other Person, has permitted or conducted, or is
aware of, any Hazardous Activity conducted with respect to the Facilities or any
other properties or assets (whether real, personal, or mixed) in which Seller or
the Company has or had an interest.
(f) There has been no Release or, to the Knowledge of Seller and the Company,
Threat of Release, of any Hazardous Materials at or from the Facilities or at
any other locations where any Hazardous Materials were generated, manufactured,
refined, transferred, produced, imported, used, or processed from or by the
Facilities, or from or by any other properties and assets (whether real,
personal, or mixed) in which Seller or any Acquired Company has or had an
interest, or any geologically or hydrologically adjoining property, whether by
Seller, the Company, or any other Person.
(g) Seller has delivered to Buyer true and complete copies and results of any
reports, studies, analyses, tests, or monitoring possessed or initiated by
Seller or the Company pertaining to Hazardous Materials or Hazardous Activities
in, on, or under the Facilities, or concerning compliance by Seller, the
Company, or any other Person for whose conduct they are or may be held
responsible, with Environmental Laws.
3.16 EMPLOYEES
(a) Schedule 3.16 contains a complete and accurate list of the following
information for each employee or director of the Company, whether or not such
employee is employed by the Company directly or through a co-employer
partnership agreement, employee leasing agreement or some other form of
third-party labor agreement, including each employee on leave of absence or
layoff status: employer; name; job title; current compensation paid or payable
and any change in compensation since January 1, 1999; vacation accrued; and
service credited for purposes of vesting and eligibility to participate under
the Company's pension, retirement, profit-sharing, thrift-savings, deferred
compensation, stock bonus, stock option, cash bonus, employee stock ownership
(including investment credit or payroll stock ownership), severance pay,
insurance, medical, welfare, or vacation plan, other Employee Pension Benefit
Plan or Employee Welfare Benefit Plan, or any other employee benefit plan or any
Director Plan, if any.
(b) No employee or director of the Company is a party to, or is otherwise bound
by, any agreement or arrangement, including any confidentiality,
non-competition, or proprietary rights agreement, between such employee or
director and any other Person ("Proprietary Rights Agreement") that in any way
adversely affects or will affect (i) the performance of his duties as an
employee or director of the Company, or (ii) the ability of the Company to
25
conduct its business, including any Proprietary Rights Agreement with Seller or
the Company by any such employee or director. To Seller's Knowledge, no
director, officer, or other key employee of the Company intends to terminate his
employment with the Company.
(c) Schedule 3.16 also contains a complete and accurate list of the following
information for each retired employee or director of the Company, or their
dependents, receiving benefits or scheduled to receive benefits in the future:
name, pension benefit, pension option election, retiree medical insurance
coverage, retiree life insurance coverage, and other benefits.
3.17 LABOR RELATIONS; COMPLIANCE
Since December 1, 1996, the Company has not been or is not a party to
any collective bargaining or other labor Contract. Since December 1, 1996, there
has not been, there is not presently pending or existing, and to Seller's
Knowledge there is not Threatened, (a) any strike, slowdown, picketing, work
stoppage, or employee grievance process, (b) any Proceeding against or affecting
the Company relating to the alleged violation of any Legal Requirement
pertaining to labor relations or employment matters, including any charge or
complaint filed by an employee or union with the National Labor Relations Board,
the Equal Employment Opportunity Commission, or any comparable Governmental
Body, organizational activity, or other labor or employment dispute against or
affecting the Company or its premises, or (c) any application for certification
of a collective bargaining agent. To Seller's Knowledge no event has occurred or
circumstance exists that could provide the basis for any work stoppage or other
labor dispute. There is no lockout of any employees by the Company, and no such
action is contemplated by the Company. The Company has complied in all respects
with all Legal Requirements relating to employment, equal employment
opportunity, nondiscrimination, immigration, wages, hours, benefits, collective
bargaining, the payment of social security and similar taxes, occupational
safety and health, and plant closing. The Company is not liable for the payment
of any compensation, damages, taxes, fines, penalties, or other amounts, however
designated, for failure to comply with any of the foregoing Legal Requirements.
3.18 INTELLECTUAL PROPERTY
(a) Intellectual Property Assets--The term "Intellectual Property Assets"
includes:
(i) the name Tex-Air Helicopters, Inc. and Tex-Air, all fictional
business names, trading names, registered and unregistered
trademarks, service marks, and applications (collectively,
"Marks");
(ii) all patents, patent applications, and inventions and discoveries
that may be patentable (collectively, "Patents");
(iii) all copyrights in both published works and unpublished works
(collectively, "Copyrights");
26
(iv) all know-how, trade secrets, confidential information, customer
lists, software, technical information, data, process technology,
plans, drawings, and blue prints (collectively, "Trade Secrets");
owned, used, or licensed by the Company as licensee or licensor.
(b) Agreements-Schedule 3.18(b) contains a complete and accurate list and
summary description, including any royalties paid or received by the Company, of
all Contracts relating to the Intellectual Property Assets to which the Company
is a party or by which the Company is bound, except for any license implied by
the sale of a product and perpetual, paid-up licenses for commonly available
software programs with a value of less than $50,000.00 under which the Company
is the licensee. There are no outstanding and, to Seller' Knowledge, no
Threatened disputes or disagreements with respect to any such agreement.
(c) Know-How Necessary for the Business
(i) The Intellectual Property Assets are all those necessary for the
operation of the Company businesses as is currently conducted. The
Company is the owner of all right, title, and interest in and to
each of the Intellectual Property Assets, free and clear of all
liens, security interests, charges, encumbrances, equities, and
other adverse claims, and has the right to use without payment to
a third party all of the Intellectual Property Assets.
(ii) Except as set forth in Schedule 3.18(c), all former and current
employees of the Company have executed written Contracts with the
Company that assign to Company all rights to any inventions,
improvements, discoveries, or information relating to the business
of the Company. No employee of the Company has entered into any
Contract that restricts or limits in any way the scope or type of
work in which the employee may be engaged or requires the employee
to transfer, assign, or disclose information concerning his work
to anyone other than the Company
(d) Patents
(i) Schedule 3.18(d) contains a complete and accurate list and summary
description of all Patents. The Company is the owner of all right,
title, and interest in and to each of the Patents, free and clear
of all liens, security interests, charges, encumbrances, entities,
and other adverse claims.
(ii) All of the issued Patents are currently in compliance with formal
legal requirements (including payment of filing, examination, and
maintenance fees and proofs of working or use), are valid and
enforceable, and are not subject to any maintenance fees or taxes
or actions falling due within ninety days after the Closing Date.
27
(iii) No Patent has been or is now involved in any interference,
reissue, reexamination, or opposition proceeding. To Seller's
Knowledge, there is no potentially interfering patent or patent
application of any third party.
(iv) No Patent is infringed or, to Seller's Knowledge, has been
challenged or threatened in any way. None of the products
manufactured and sold, nor any process or know-how used, by the
Company infringes or is alleged to infringe any patent or other
proprietary right of any other Person.
(v) All products made, used, or sold under the Patents have been
marked with the proper patent notice.
(e) Trademarks
(i) Schedule 3.18(e) contains a complete and accurate list and summary
description of all Marks. The Company is the owner of all right,
title, and interest in and to each of the Marks, free and clear of
all liens, security interests, charges, encumbrances, equities,
and other adverse claims.
(ii) All Marks that have been registered with the United States Patent
and Trademark Office are currently in compliance with all formal
legal requirements (including the timely post-registration filing
of affidavits of use and incontestability and renewal
applications), are valid and enforceable, and are not subject to
any maintenance fees or taxes or actions falling due within ninety
days after the Closing Date.
(iii) No Xxxx has been or is now involved in any opposition,
invalidation, or cancellation and, to Seller's Knowledge, no such
action is Threatened with the respect to any of the Marks.
(iv) To Seller's Knowledge, there is no potentially interfering
trademark or trademark application of any third party.
(v) No Xxxx is infringed or, to Seller's Knowledge, has been
challenged or threatened in any way. None of the Marks used by the
Company infringes or is alleged to infringe any trade name,
trademark, or service xxxx of any third party.
(vi) All products and materials containing a Xxxx xxxx the proper
federal registration notice where permitted by law.
(f) Copyrights
(i) Schedule 3.18(f) contains a complete and accurate list and summary
description of all Copyrights. The Company is the owner of all
right, title, and interest in and to each of the Copyrights, free
and clear of all liens, security interests, charges, encumbrances,
equities, and other adverse claims.
28
(ii) All the Copyrights have been registered and are currently in
compliance with formal legal requirements, are valid and
enforceable, and are not subject to any maintenance fees or taxes
or actions falling due within ninety days after the date of
Closing.
(iii) No Copyright is infringed or, to Seller's Knowledge, has been
challenged or threatened in any way. None of the subject matter of
any of the Copyrights infringes or is alleged to infringe any
copyright of any third party or is a derivative work based on the
work of a third party.
(iv) All works encompassed by the Copyrights have been marked with the
proper copyright notice.
(g) Trade Secrets
(i) With respect to each Trade Secret, the documentation relating to
such Trade Secret is current, accurate, and sufficient in detail
and content to identify and explain it and to allow its full and
proper use without reliance on the knowledge or memory of any
individual.
(ii) Seller and the Company have taken all reasonable precautions to
protect the secrecy, confidentiality, and value of their Trade
Secrets.
(iii) Company has good title and an absolute (but not necessarily
exclusive) right to use the Trade Secrets. The Trade Secrets are
not part of the public knowledge or literature, and, to Seller'
Knowledge, have not been used, divulged, or appropriated either
for the benefit of any Person (other than the Company) or to the
detriment of the Company. No Trade Secret is subject to any
adverse claim or has been challenged or threatened in any way.
3.19 CERTAIN PAYMENTS
Since December 1, 1996, neither the Company or director, officer,
agent, or employee of the Company, or to Seller's Knowledge any other Person
associated with or acting for or on behalf of the Company, has directly or
indirectly (a) made any contribution, gift, bribe, rebate, payoff, influence
payment, kickback, or other payment to any Person, private or public, regardless
of form, whether in money, property, or services (i) to obtain favorable
treatment in securing business, (ii) to pay for favorable treatment for business
secured, (iii) to obtain special concessions or for special concessions already
obtained, for or in respect of the Company or any Affiliate of the Company, or
(iv) in violation of any Legal Requirement, (b) established or maintained any
fund or asset that has not been recorded in the books and records of the
Company.
3.20 DISCLOSURE
(a) No representation or warranty of Seller in this Agreement and no statement
in the Schedules attached hereto omits to state a material fact necessary to
29
make the statements herein or therein, in light of the circumstances in which
they were made, not misleading.
(b) No notice given pursuant to Section 5.5 will contain any untrue statement or
omit to state a material fact necessary to make the statements therein or in
this Agreement, in light of the circumstances in which they were made, not
misleading.
3.21 RELATIONSHIPS WITH RELATED PERSONS
No Seller or any Related Person of Seller or of the Company has, or
since December 1, 1996, has had, any interest in any property (whether real,
personal, or mixed and whether tangible or intangible, including without
limitation any Aircraft), used in or pertaining to the Company's businesses
except as expressly set forth in Schedule 3.21. No Seller or any Related Person
of Seller or the Company is, or since December 1, 1996 has owned (of record or
as a beneficial owner) an equity interest or any other financial or profit
interest in, a Person that has (i) had business dealings or a material financial
interest in any transaction with the Company, other than business dealings or
transactions conducted in the Ordinary Course of Business with the Company at
substantially prevailing market prices and on substantially prevailing market
term, or (ii) engaged in competition with the Company with respect to any line
of the products or services of the Company (a "Competing Business") in any
market presently served by the Company except for less than one percent of the
outstanding capital stock of any Competing Business that is publicly traded on
any recognized exchange or in the over-the-counter market. Except as set forth
in Schedule 3.21, no Seller or any Related Person of Seller or of the Company is
a party to any Contract with, or has any claim or right against, the Company.
3.22 BROKERS OR FINDERS
Seller and his agents have incurred no obligation or liability,
contingent or otherwise, for brokerage or finders' fees or agents' commissions
or other similar payment in connection with this Agreement.
3.23 AIRCRAFT CONDITION
(a) Schedules 3.23(a) contain descriptions and specifications for all Aircraft
owned by the Company as of the date of signing hereof, including a listing of
all accessories, avionics, and other add-ons to each aircraft, and the "total
time" and "since overhaul" times on all components. Seller has also delivered to
Buyer the original and complete engine and airframe logbooks for each Aircraft
referenced in Schedules 3.23(a) . With respect to each of said Aircraft and
logbooks, except as set forth in Schedule 3.23(a):
(i) The Aircraft and its engines and components are fully and
completely airworthy and in good and serviceable condition, fit
for the purpose or purposes and the conduct of the Company's
business;
(ii) All engine and airframe logbooks are complete and accurate and
fairly and accurately represent, in all respects whatsoever, the
30
operating and maintenance history of each aircraft and its engines
and components;
(iii) The Aircraft and its engines and components have been flown and
maintained in accordance with all federal, state, and local
ordinances, statutes, regulations, permits, and authorizations
which were applicable at any time while said aircraft was under
the operational control of Seller and/or the Company;
(iv) The Aircraft and its engines and components have been maintained,
repaired, and overhauled in strict accordance with any and all
directives, mandatory service bulletins, alert service bulletins,
airworthiness directives, or any other directive or instruction of
either the manufacturer or the Federal Aviation Administration;
(v) Except as otherwise noted in either the engine or airframe logbook
for the Aircraft or as may be set forth in the pertinent schedule
for each aircraft, there is no damage history to the aircraft or
its engines/components; and
(vi) The Aircraft has not been used for flight instruction or flight
training of any kind or character and have, while at all times
under the operational control of Seller and/or the Company, been
flown only by good, safe, and competent pilots who were fully
licensed and authorized under federal, state, and local laws and
ordinances to fly the aircraft.
4.0 REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 ORGANIZATION AND GOOD STANDING
Buyer is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware.
4.2 AUTHORITY; NO CONFLICT
(a) This Agreement constitutes the legal, valid, and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms. Buyer has the
absolute and unrestricted right, power, and authority to execute and deliver
this Agreement and to perform its obligations under this Agreement.
(b) Neither the execution and delivery of this Agreement by Buyer nor the
consummation or performance of any of the Contemplated Transactions by Buyer
will give any Person the right to prevent, delay, or otherwise interfere with
any of the Contemplated Transactions pursuant to:
(i) any provision of Buyer's Organizational Documents;
(ii) any resolution adopted by the board of directors or the
stockholders of Buyer;
31
(iii) any Legal Requirement or Order to which Buyer may be subject; or
(iv) any Contract to which Buyer is a party or by which Buyer may be
bound.
Except as set forth in Schedule 4.2, Buyer is not and will not be required to
obtain any Consent from any Person in connection with the execution and delivery
of this Agreement or the consummation or performance of any of the Contemplated
Transactions.
4.3 INVESTMENT INTENT
Buyer is acquiring the Securities for its own account and not with a
view to their distribution within the meaning of Section 2(11) of the Securities
Act.
4.4 CERTAIN PROCEEDINGS
There is no pending Proceeding that has been commenced against Buyer
and that challenges, or may have the effect of preventing, delaying, making
illegal, or otherwise interfering with, any of the Contemplated Transactions. To
Buyer's Knowledge, no such Proceeding has been Threatened.
4.5 BROKERS OR FINDERS
Buyer and its officers and agents have incurred no obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payment in connection with this Agreement and will
indemnify and hold Seller harmless from any such payment alleged to be due by or
through Buyer as a result of the action of Buyer or its officers or agents.
5.0 COVENANTS OF SELLER PRIOR TO CLOSING DATE
5.1 ACCESS AND INVESTIGATION
Between the date of this Agreement and the Closing Date, Seller and
his Representatives will (a) afford Buyer and its Representatives and
prospective lenders and their Representatives (collectively, "Buyer's Advisors")
full and free access to the Company's personnel, properties, contracts, books
and records, and other documents and data, (b) furnish Buyer and Buyer's
Advisors with copies of all such contracts, books and records, and other
existing documents and data as Buyer may reasonably request, and (c) furnish
Buyer and Buyer's Advisors with such additional financial, operating, and other
data and information as Buyer may reasonably request.
5.2 OPERATION OF THE BUSINESSES OF THE COMPANY
Between the date of this Agreement and the Closing Date, Seller will,
and will cause the Company to:
32
(a) conduct their business only in the Ordinary Course of Business, including,
without limitation to the generality of the foregoing, all necessary and proper
maintenance and repair of all Aircraft of the Company or as referenced in 5.8
hereof and in full compliance with applicable Legal Requirements including
without limitation the Federal Aviation Administration and manufacturers'
requirements, including without limitation, all minor or major inspections
and/or overhauls promptly when due;
(b) use their Best Efforts to preserve intact their current business
organization, keep available the services of the current officers, employees,
and agents thereof, and maintain the relations and good will with suppliers,
customers, landlords, creditors, employees, agents, and others having business
relationships therewith;
(c) confer with Buyer concerning operational matters of a material nature; and
(d) otherwise report periodically to Buyer concerning the status of their
business, operations, and finances.
5.3 NEGATIVE COVENANTS
Except as otherwise expressly permitted by this Agreement, between
the date of this Agreement and the Closing Date, Seller will not, without the
prior consent of Buyer, take any affirmative action, or fail to take any
reasonable action within their or its control, as a result of which any of the
changes or events listed in Section 3.12 is likely to occur; provided, however,
Seller may by written request to Buyer seek Buyer's consent to such change or
event and Buyer must respond in writing to such request within five (5) business
days. In the event Buyer does not respond within such time, it shall be presumed
that Buyer consented thereto.
5.4 REQUIRED APPROVALS
As promptly as practicable after the date of this Agreement, Seller
will, and will cause the Company to, (a) make all filings required by Legal
Requirements to be made by them in order to consummate the Contemplated
Transactions and (b) obtain all Consents identified in Schedule 3.2. Between the
date of this Agreement and the Closing Date, Seller will, and will cause the
Company to, (a) cooperate with Buyer with respect to all filings that Buyer
elects to make or is required by Legal Requirements to make in connection with
the Contemplated Transactions, and (b) cooperate with Buyer in obtaining all
Consents identified in Schedule 4.2.
5.5 NOTIFICATION
Between the date of this Agreement and the Closing Date, each Seller
will promptly notify Buyer in writing if such Seller or the Company become aware
of any fact or condition that causes or constitutes a Breach of any of Seller's
representations and warranties as of the date of this Agreement, or if such
Seller or the Company becomes aware of the occurrence after the date of this
Agreement of any fact or condition that would (except as expressly contemplated
by this Agreement) cause or constitute a Breach of any such representation or
warranty had such representation or warranty been made as of the time of
33
occurrence or discovery of such fact or condition. Each Seller shall also notify
Buyer in writing if such Seller or the Company becomes aware of any material
adverse change in the business prospects, operations, earnings, assets, or
financial or other condition of the Company. Should any such fact or condition
require any change in any Disclosure Schedule if the Schedule were dated the
date of the occurrence or discovery of any such fact or condition, Seller will
promptly deliver to Buyer a supplement to the Disclosure Schedule specifying
such change. During the same period, each Seller will promptly notify Buyer of
the occurrence of any Breach of any covenant of Seller in this Section 5 or of
the occurrence of any event that may prevent satisfaction of the conditions in
Section 7. Buyer shall have no obligation to accept such supplement to the
Disclosure Schedules or waive Breach of any covenant of Seller in this Section 5
or the occurrence of any event that may prevent satisfaction of the conditions
in Section 7.
5.6 PAYMENT OF INDEBTEDNESS BY SELLER OR RELATED PERSONS
Except as expressly provided in this Agreement, Seller will cause all
indebtedness owed to the Company by Seller or any Related Person of Seller or
Company or owed by the Company to Seller or any Related Person of Seller or
Company to be paid in full prior to Closing.
5.7 CERTAIN AIRCRAFT
By Closing, Seller will have agreed to transfer to the Company all
right, title, and ownership to the Aircraft listed in Schedule 5.7, and other
property where title may be held in Seller's name, including, but not limited
to, trailers and vehicles, primarily used by Company in its operations free and
clear of all liens, claims, and encumbrances except the outstanding aircraft
security interests thereon listed in Schedule 5.7, with the closing of such
transfer of ownership to occur no later than January 10, 2003. In consideration
of such transfer, the Company shall assume the indebtedness of Seller to the
parties and in the amounts listed on Schedule 5.7 and will use its Best Efforts
to have any personal guarantees of Seller thereof released.
5.8 EMPLOYMENT AGREEMENTS
At Closing, Seller shall execute an employment agreement
substantially in the form attached hereto as Exhibit 5.8 for a three (3) year
period commencing as of the Closing Date.
5.9 NO NEGOTIATION
Until such time, if any, as this Agreement is terminated pursuant to
Section 9, Seller will not, and will cause the Company and each of their
Representatives not to, directly or indirectly solicit, initiate, or encourage
any inquiries or proposals from, discuss or negotiate with, provide any
non-public information to, or consider the merits of any unsolicited inquiries
34
or proposals from, any Person (other than Buyer) relating to any transaction
involving the sale of the business or assets (other than in the Ordinary Course
of Business) of the Company, or any of the capital stock of the Company, or any
merger, consolidation, business combination, or similar transaction involving
the Company.
5.10 BEST EFFORTS
Between the date of this Agreement and the Closing Date, Seller will
use his Best Efforts to cause the conditions in Sections 7 and 8 to be
satisfied.
6.0 COVENANTS OF BUYER PRIOR TO CLOSING DATE
6.1 APPROVALS OF GOVERNMENTAL BODIES
As promptly as practicable after the date of this Agreement, Buyer
will, and will cause each of its Related Persons to, (a) make all filings
required by Legal Requirements to be made by them to consummate the Contemplated
Transactions and (b) obtain all Consents identified in Schedule 4.2. Between the
date of this Agreement and the Closing Date, Buyer will, and will cause each
Related Person to, (i) cooperate with Seller with respect to all filings that
Seller are required by Legal Requirements to make in connection with the
Contemplated Transactions, and (ii) cooperate with Seller in obtaining all
consents identified in Schedule 3.2; provided that this Agreement will not
require Buyer to dispose of or make any change in any portion of its business or
to incur any other burden to obtain a Governmental Authorization.
6.2 BEST EFFORTS
Except as set forth in the proviso to Section 6.1, between the date
of this Agreement and the Closing Date, Buyer will use its Best Efforts to cause
the conditions in Sections 7 and 8 to be satisfied.
7.0 CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
Buyer's obligation to purchase the Securities and to take the other actions
required to be taken by Buyer at the Closing is subject to the satisfaction, at
or prior to the Closing, of each of the following conditions (any of which may
be waived by Buyer, in whole or in part):
7.1 CLOSING UNDER OTHER AGREEMENTS
(a) Execution by Seller of Escrow Agreement, the form similar to
Exhibit 2.5 hereto.
(b) Execution by Seller of the Employment Agreement, in the form
similar to Exhibit 5.8 hereto.
35
7.2 ACCURACY OF REPRESENTATIONS
All of Seller's representations and warranties in this Agreement
(considered collectively), and each of these representations and warranties
(considered individually), must have been accurate in all material respects as
of the date of this Agreement, and must be accurate in all material respects as
of the Closing Date as if made on the Closing Date, without giving effect to any
supplement to the Disclosure Schedules.
7.3 SELLER'S PERFORMANCE
(a) All of the covenants and obligations that Seller is required to perform or
to comply with pursuant to this Agreement at or prior to the Closing (considered
collectively), and each of these covenants and obligations (considered
individually), must have been duly performed and complied with in all respects.
(b) Each document required to be delivered pursuant to Section 2.4 must have
been delivered, and each of the other covenants and obligations in Sections 5.7
must have been performed and complied with in all respects.
7.4 CONSENTS
Each of the Consents identified in Schedule 3.2, and each Consent
identified in Schedule 4.2, must have been obtained and must be in full force
and effect.
7.5 ADDITIONAL DOCUMENTS
Each of the following documents must have been delivered to Buyer:
such other documents as Buyer may reasonably request for the purpose
of (i) evidencing the accuracy of any of Seller's representations and
warranties, (ii) evidencing the performance by either Seller of, or the
compliance by either Seller with, any covenant or obligation required to be
performed or complied with by such Seller, (iii) evidencing the satisfaction of
any condition referred to in this Section 7, or (iv) otherwise facilitating the
consummation or performance of any of the Contemplated Transactions.
7.6 NO PROCEEDINGS
Since the date of this Agreement, there must not have been commenced
or Threatened against Buyer, or against any Person affiliated with Buyer, any
Proceeding (a) involving any challenge to, or seeking damages or other relief in
connection with, any of the Contemplated Transactions, or (b) that may have the
effect of preventing, delaying, making illegal, or otherwise interfering with
any of the Contemplated Transactions.
36
7.7 NO CLAIM REGARDING STOCK OWNERSHIP OR SALE PROCEEDS
There must not have been made or Threatened by any Person any claim
asserting that such Person (a) is the holder or the beneficial owner of, or has
the right to acquire or to obtain beneficial ownership of, any Security of, or
any other voting, equity, or ownership interest in, any of the Company or (b) is
entitled to all or any portion of the Purchase Price payable for the Securities.
8.0 CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
Seller's obligation to sell the Securities and to take the other
actions required to be taken by Seller at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by Seller, in whole or in part):
8.1 ACCURACY OF REPRESENTATIONS
All of Buyer's representations and warranties in this Agreement
(considered collectively), and each of these representations and warranties
(considered individually), must have been accurate in all material respects as
of the date of this Agreement and must be accurate in all material respects as
of the Closing Date as if made on the Closing Date.
8.2 BUYER'S PERFORMANCE
(a) All of the covenants and obligations that Buyer is required to perform or to
comply with pursuant to this Agreement at or prior to the Closing (considered
collectively), and each of these covenants and obligations (considered
individually), must have been performed and complied with in all respects.
(b) Buyer must have delivered each of the documents required to be delivered by
Buyer pursuant to Section 2.4 and must have made the payment required to be made
by Buyer pursuant to Sections 2.(B)(i).
8.3 CONSENTS
Each of the Consents, if any, identified in Schedule 3.2 must have
been obtained and must be in full force and effect.
8.4 ADDITIONAL DOCUMENTS
Buyer must have caused the following documents to be delivered to
Seller:
such other documents as Seller may reasonably request for the purpose
of (i) evidencing the accuracy of any representation or warranty of Buyer, (ii)
evidencing the performance by Buyer of, or the compliance by Buyer with, any
covenant or obligation required to be performed or complied with by Buyer, (iii)
evidencing the satisfaction of any condition referred to in this Section 8, or
(iv) otherwise facilitating the consummation of any of the Contemplated
Transactions.
37
8.5 NO INJUNCTION
There must not be in effect any Legal Requirement or any injunction
or other Order that (a) prohibits the sale of the Securities by Seller to Buyer,
and (b) has been adopted or issued, or has otherwise become effective, since the
date of this Agreement.
9.0 TERMINATION
9.1 TERMINATION EVENTS
This Agreement may, by notice given prior to or at the Closing, be
terminated:
(a) by either Buyer or Seller if a material Breach of any provision of this
Agreement has been committed by the other party and such Breach has not been
waived;
(b) (i) by Buyer if any of the conditions in Section 7 has not been satisfied as
of the Closing Date or if satisfaction of such a condition is or becomes
prevented (other than through the failure of Buyer to comply with its
obligations under this Agreement) and Buyer has not waived such condition on or
before the Closing Date; or (ii) by Seller, if any of the conditions in Section
8 has not been satisfied of the Closing Date or if satisfaction of such a
condition is or becomes prevented (other than through the failure of Seller to
comply with his obligations under this Agreement) and Seller has not waived such
condition on or before the Closing Date;
(c) by mutual consent of Buyer and Seller; or
(d) by either Buyer or Seller if the Closing has not occurred (other than
through the failure of any party seeking to terminate this Agreement to comply
fully with its obligations under this Agreement) by the Outside Closing Date, or
such later date as the parties may agree upon.
9.2 EFFECT OF TERMINATION
Each party's right of termination under Section 9.1 is in addition to
any other rights it may have under this Agreement or otherwise, and the exercise
of a right of termination will not be an election of remedies. If this Agreement
is terminated pursuant to Section 9.1, all further obligations of the parties
under this Agreement will terminate, except that the obligations in Sections
12.1 and 12.3 will survive for a period of two (2) years from the date of
execution of this Agreement; provided, however, that if this Agreement is
terminated by a party because of the Breach of the Agreement by the other party
or because one or more of the conditions to the terminating party's obligations
under this Agreement is not satisfied as a result of the other party's failure
to comply with its obligations under this Agreement, the terminating party's
right to pursue all legal remedies will survive such termination unimpaired.
38
10.0 INDEMNIFICATION; REMEDIES
10.1 SURVIVAL; RIGHT TO INDEMNIFICATION NOT AFFECTED BY KNOWLEDGE
All representations, warranties, covenants, and obligations in this
Agreement, the Disclosure Schedules, the supplements to the Disclosure
Schedules, the certificate delivered pursuant to Section 2.4(a)(viii), and any
other certificate or document delivered pursuant to this Agreement will survive
the Closing. The right to indemnification, payment of Damages or other remedy
based on such representations, warranties, covenants, and obligations will not
be affected by any investigation conducted with respect to, or any Knowledge
acquired (or capable of being acquired) at any time, whether before or after the
execution and delivery of this Agreement or the Closing Date, with respect to
the accuracy or inaccuracy of or compliance with, any such representation,
warranty, covenant, or obligation. The waiver of any condition based on the
accuracy of any representation or warranty, or on the performance of or
compliance with any covenant or obligation, will not affect the right to
indemnification, payment of Damages, or other remedy based on such
representations, warranties, covenants, and obligations.
10.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY SELLER
Seller will indemnify and hold harmless Buyer, the Company, and their
respective Representatives, stockholders, controlling persons, and affiliates
(collectively the "Indemnified Persons") for, and will pay to the Indemnified
Persons the amount of, any loss, liability, claim, damage, expense (including
costs of investigation and defense and reasonable attorneys' fees) or diminution
of value, whether or not involving a third-party claim (collectively "Damages"),
arising, directly or indirectly, from or in connection with:
(a) any Breach of any representation or warranty made by Seller in this
Agreement as of the date hereof (without giving effect to any supplement to the
Disclosure Schedules), the Disclosure Schedules, the supplements to the
Disclosure Schedules, or any other certificate or document delivered by Seller
pursuant to this Agreement other than any such Breach that is disclosed in a
supplement to the Disclosure Schedule accepted by Buyer and is expressly
identified in the certificate delivered pursuant to Sections 2.4(a)(viii), as
having caused the condition specified in Section 7.1 not to be satisfied;
(b) any Breach of any representation or warranty made by Seller in this
Agreement as if such representation or warranty were made on and as of the
Closing Date without giving effect to any supplement to the Disclosure
Schedules;
(c) any Breach by Seller of any covenant or obligation of Seller in this
Agreement;
(d) any claim by any Person for brokerage or finder's fees or commissions or
similar payments based upon any agreement or understanding alleged to have been
made by any such Person with either Seller or the Company (or any Person acting
on their behalf) in connection with any of the Contemplated Transactions.
The remedies provided in this Section 10.2 will not be exclusive of or limit any
other remedies that may be available to Buyer or the other Indemnified Persons.
39
10.3 INDEMNIFICATION AND PAYMENT OF DAMAGES BY BUYER
Buyer will indemnify and hold harmless Seller, and will pay to Seller
the amount of any Damages arising, directly or indirectly, from or in connection
with (a) any Breach of any representation or warranty made by Buyer in this
Agreement or in any certificate delivered by Buyer pursuant to this Agreement,
(b) any Breach by Buyer of any covenant or obligation of Buyer in this
Agreement, or (c) any claim by any Person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or understanding
alleged to have been made by such Person with Buyer (or any Person acting on its
behalf) in connection with any of the Contemplated Transactions.
10.4 PROCEDURE FOR INDEMNIFICATION--THIRD PARTY CLAIMS
(a) Promptly after receipt by an indemnified party under Section 10.2 or 10.3
of notice of the commencement of any Proceeding against it, such indemnified
party will, if a claim is to be made against an indemnifying party under such
Section, give notice to the indemnifying party of the commencement of such
claim, but the failure to notify the indemnifying party will not relieve the
indemnifying party of any liability that it may have to any indemnified party,
except to the extent that the indemnifying party demonstrates that the defense
of such action is prejudiced by the indemnifying party's failure to give such
notice.
(b) If any Proceeding referred to in Section 10.4(a) is brought against an
indemnified party and it gives notice to the indemnifying party of the
commencement of such Proceeding, the indemnifying party will, unless the claim
involves Taxes, be entitled to participate in such Proceeding and, to the extent
that it wishes (unless (i) the indemnifying party is also a party to such
Proceeding and the indemnified party determines in good faith that joint
representation would be inappropriate, or (ii) the indemnifying party fails to
provide reasonable assurance to the indemnified party of its financial capacity
to defend such Proceeding and provide indemnification with respect to such
Proceeding), to assume the defense of such Proceeding with counsel satisfactory
to the indemnified party and, after notice from the indemnifying party to the
indemnified party of its election to assume the defense of such Proceeding, the
indemnifying party will not, as long as it diligently conducts such defense, be
liable to the indemnified party under this Section 10 for any fees of other
counsel or any other expenses with respect to the defense of such Proceeding, in
each case subsequently incurred by the indemnified party in connection with the
defense of such Proceeding, other than reasonable costs of investigation. If the
indemnifying party assumes the defense of a Proceeding, (i) it will be
conclusively established for purposes of this Agreement that the claims made in
that Proceeding are within the scope of and subject to indemnification; (ii) no
compromise or settlement of such claims may be effected by the indemnifying
party without the indemnified party's consent unless (A) there is no finding or
admission of any violation of Legal Requirements or any violation of the rights
of any Person and no effect on any other claims that may be made against the
indemnified party, and (B) the sole relief provided is monetary damages that are
paid in full by the indemnifying party; and (iii) the indemnified party will
have no liability with respect to any compromise or settlement of such claims
effected without its consent. If notice is given to an indemnifying party of the
40
commencement of any Proceeding and the indemnifying party does not, within ten
days after the indemnified party's notice is given, give notice to the
indemnified party of its election to assume the defense of such Proceeding, the
indemnifying party will be bound by any determination made in such Proceeding or
any compromise or settlement effected by the indemnified party.
(c) Notwithstanding the foregoing, if an indemnified party determines in good
faith that there is a reasonable probability that a Proceeding may adversely
affect it or its affiliates other than as a result of monetary damages for which
it would be entitled to indemnification under this Agreement, the indemnified
party may, by notice to the indemnifying party, assume the exclusive right to
defend, compromise, or settle such Proceeding, but the indemnifying party will
not be bound by any determination of a Proceeding so defended or any compromise
or settlement effected without its consent (which may not be unreasonably
withheld).
10.5 PROCEDURE FOR INDEMNIFICATION--OTHER CLAIMS
A claim for indemnification for any matter not involving a
third-party claim may be asserted by notice to the party from whom
indemnification is sought.
11.0 GENERAL PROVISIONS
11.1 POST CLOSING COVENANTS
Schedule 11.1 contains (a) a complete and accurate description of the Ranch
Property, including location and legal description, (b) a complete and accurate
list of any and all deeds of trust, liens, security interests, promissory notes
and guaranties on the Ranch Property, (c) a complete and accurate list of
improvements, incidental equipment and vehicles regularly kept on the property,
and a complete and accurate description of any outstanding taxes. At such time
as Seller refinances the existing debt on the Ranch Property, including, but not
limited to, the release and satisfaction of all deeds of trust, liens and/or
other security interests on the Ranch Property granted by the Company and
repayment of any and all promissory notes and/or releases of any and all
guaranties made by the Company in connection therewith, including, without
limitation, the deeds of trust and notes listed in Schedule 11.1, and Seller
furnishes Buyer with proof thereof satisfactory to Buyer and its counsel, Buyer
will cause the Company to execute and deliver to Seller a deed and xxxx of sale
for the Ranch Property, substantially in the forms attached hereto as Exhibit
11.1. Until such refinancing is accomplished, Seller shall pay and perform, as
and when due, in place of the Company, any and all obligations, taxes and/or
liabilities of the Company in connection with the Ranch Property and/or such
deeds of trust, liens, security interests, notes, and guaranties, and shall
defend and indemnify and hold harmless the Company from any such loss or
liability therefore.
41
11.2 EXPENSES
Except as otherwise expressly provided in this Agreement, each party
to this Agreement will bear its respective expenses incurred in connection with
the negotiation, preparation, execution and performance of this Agreement and
the Contemplated Transactions, including all fees and expenses of agents,
representatives, counsel, and accountants. Seller will cause the Company not to
incur any out of pocket expenses in connection with the negotiation,
preparation, execution and performance of this Agreement. In the event of
termination of this Agreement, the obligation of each party to pay its own
expenses will be subject to any rights of such party arising from a Breach of
this Agreement by another party.
11.3 PUBLIC ANNOUNCEMENTS
Except as required by Legal Requirements, any public announcement or
similar publicity with respect to this Agreement or the Contemplated
Transactions will be issued, if at all, at such time and in such manner as Buyer
determines. Unless consented to by Buyer in advance or required by Legal
Requirements, prior to the Closing Seller shall, and shall cause the Company to,
keep this Agreement strictly confidential and may not make any disclosure of
this Agreement to any Person. Seller and Buyer will consult with each other
concerning the means by which the Company employees, customers, and suppliers
and others having dealings with the Company will be informed of the Contemplated
Transactions, and Buyer will have the right to be present for any such
communication.
11.4 CONFIDENTIALITY
Between the date of this Agreement and the Closing Date, Buyer and
Seller will maintain in confidence, and will cause the directors, officers,
employees, agents, and advisors of Buyer and the Company to maintain in
confidence, any written information stamped "confidential" when originally
furnished by another party or the Company in connection with this Agreement or
the Contemplated Transactions, unless (a) such information is already known to
such party or to others not bound by a duty of confidentiality or such
information becomes publicly available through no fault of such party, (b) the
use of such information is necessary or appropriate in making any filing or
obtaining any consent or approval required for the consummation of the
Contemplated Transactions, or (c) the furnishing or use of such information is
required by or necessary or appropriate in connection with legal proceedings. If
the Contemplated Transactions are not consummated, each party will return or
destroy as much of such written information as the other party may reasonably
request.
11.5 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by telecopier
(with written confirmation of receipt), provided that a copy is mailed by
42
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
Seller: Xxxxxx X. Xxxxx
Facsimile No.: 000-000-0000
with a copy to: Holland Law Office
Attention: Xxxx Xxxxxxx
Facsimile No.: 713-242-0254
Buyer: Offshore Aviation Inc.
Attention: Xxxxxx Xxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx
Facsimile No.: (000) 000-0000
Xxxxx Gran
Facsimile No.: 011 44 207 404 1301
11.6 JURISDICTION; SERVICE OF PROCESS
Any action or proceeding seeking to enforce any provision of, or
based on any right arising out of, this Agreement may be brought against any of
the parties in the courts of the State of Texas, County of Xxxxxx, and each of
the parties consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein. Process in any action or proceeding referred to in the
preceding sentence may be served on any party anywhere in the world.
11.7 FURTHER ASSURANCES
The parties agree (a) to furnish upon request to each other such
further information, (b) to execute and deliver to each other such other
documents, and (c) to do such other acts and things, all as the other party may
43
reasonably request for the purpose of carrying out the intent of this Agreement
and the documents referred to in this Agreement.
11.8 WAIVER
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power,
or privilege will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (a) no claim or right arising out of
this Agreement or the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement or the documents referred to in this Agreement.
11.9 ENTIRE AGREEMENT AND MODIFICATION
This Agreement supersedes all prior agreements between the parties
with respect to its subject matter and constitutes (along with the documents
referred to in this Agreement) a complete and exclusive statement of the terms
of the agreement between the parties with respect to its subject matter. This
Agreement may not be amended except by a written agreement executed by the party
to be charged with the amendment.
11.10 DISCLOSURE SCHEDULE
(a) The disclosures in the Disclosure Schedules, and those in any Supplement
thereto, relate only to the representations and warranties in the Section of the
Agreement to which they expressly relate and not to any other representation or
warranty in this Agreement.
(b) In the event of any inconsistency between the statements in the body of this
Agreement and those in the Disclosure Schedules (other than an exception
expressly set forth as such in the Disclosure Schedules with respect to a
specifically identified representation or warranty), the statements in the body
of this Agreement will control.
11.11 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS
Neither party may assign any of its rights under this Agreement
without the prior consent of the other parties except that Buyer may assign any
44
of its rights under this Agreement to any Parent or Subsidiary of Buyer. Subject
to the preceding sentence, this Agreement will apply to, be binding in all
respects upon, and inure to the benefit of the successors and permitted assigns
of the parties. Nothing expressed or referred to in this Agreement will be
construed to give any Person other than the parties to this Agreement any legal
or equitable right, remedy, or claim under or with respect to this Agreement or
any provision of this Agreement. This Agreement and all of its provisions and
conditions are for the sole and exclusive benefit of the parties to this
Agreement and their successors and assigns.
11.12 SEVERABILITY
The covenants and provisions of this Agreement are separate and
independent. If any provision of this Agreement is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Agreement
will remain in full force and effect. Any provision of this Agreement held
invalid or unenforceable only in part or degree will remain in full force and
effect to the extent not held invalid or unenforceable.
11.13 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for
convenience only and will not affect its construction or interpretation. All
references to "Section" or "Sections" refer to the corresponding Section or
Sections of this Agreement. All words used in this Agreement will be construed
to be of such gender or number as the circumstances require. Unless otherwise
expressly provided, the word "including" does not limit the preceding words or
terms. The parties recognize and agree that this is a negotiated document
between parties of equal bargaining power and is not a contract of adhesion and
the terms and provisions hereof are not to be construed in favor of either party
on the grounds that this Agreement was prepared by the other party.
11.14 TIME OF ESSENCE
With regard to all dates and time periods set forth or referred to in
this Agreement, time is of the essence.
11.15 GOVERNING LAW
This Agreement will be governed by the laws of the State of Texas
without regard to conflicts of laws principles.
11.16 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
45
11.17 ADVICE OF COUNSEL
BY EXECUTING AND DELIVERING THIS AGREEMENT, SELLER ACKNOWLEDGES THAT HE HAS
ACTUAL NOTICE OF ALL THE PROVISIONS CONTAINED IN THIS AGREEMENT AND THE
AGREEMENTS REFERRED TO HEREIN, AFTER HAVING BEEN ADVISED TO RETAIN COUNSEL TO
REVIEW THIS AGREEMENT AND THAT NEITHER BUYER NOR THE COMPANY NOR ANY OTHER
PERSON HAS REPRESENTED THAT COUNSEL HAS BEEN PROVIDED FOR SELLER. SELLER AGREES
THAT THIS AGREEMENT CONSTITUTES ADEQUATE NOTICE OF SUCH MATTERS AND SELLER
HEREBY WAIVES ANY REQUIREMENT, STATUTORY OR OTHERWISE, THAT ANY FURTHER NOTICE,
COUNSEL, OR ADVICE BE GIVEN. SELLER WARRANTS THAT HE IS NOT EXECUTING THIS
AGREEMENT AND THE AGREEMENTS REFERRED TO HEREIN BECAUSE OF ANY PERSUASIVE
STATEMENT, REPRESENTATION OR PROMISE MADE BY ANYONE WHOMSOEVER, OR FOR ANYTHING
OTHER THAN WHAT IS RECITED AND DESCRIBED IN THIS AGREEMENT AND THE AGREEMENTS
REFERRED TO HEREIN.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
OFFSHORE AVIATION INC.
By: /s/ XXXXXX X. XXXX
------------------------------------
Name: XXXXXX X. XXXX
Title:
/s/ XXXXXX X. XXXXX
------------------------------------
XXXXXX X. XXXXX
46
I, Xxxx Xxxxx Xxxxx, spouse of Xxxxxx X. Xxxxx, affirm that I am fully aware of,
understand, and fully consent and agree to the provisions of this Agreement and
its binding effect upon any community property interests that Xxxxxx X. Xxxxx or
Xxxx Xxxxx Xxxxx may now or hereafter own, and agree that the termination of
their marital relationship for any reason shall not have the effect of removing
any shares of stock or other Securities otherwise subject to this Agreement from
the coverage hereof, that I join in and agree to be bound by the terms and
conditions of this Agreement, and that my awareness, understanding, consent,
joinder and agreement are evidenced by my execution of this Agreement.
/s/ XXXX XXXXX XXXXX
------------------------------------
XXXX XXXXX XXXXX
47
ESCROW AGREEMENT
(Exhibit 2.5)
THIS ESCROW AGREEMENT (this "Agreement"), made this 31st day of
December, 2002, by and between OFFSHORE AVIATION INC., a Delaware corporation
(the "Purchaser"), XXXXXX X. XXXXX, an individual resident of Houston, Xxxxxx
County, Texas (the "Seller"), and BELL, RYNIKER, XXXXXXXXXX & XXXX, P.C. (the
"Escrow Agent"),
WITNESSETH,
WHEREAS, The Escrow Agent has agreed to act as an Escrow Agent for
Purchaser and Seller and has agreed to hold in escrow on the terms and
conditions set forth herein 6097 shares of common stock of SEACOR Smit Inc., a
Delaware corporation, represented by certificate numbers ____________ (the
"Shares") and any cash proceeds from the Shares realized in accordance with the
terms of this Agreement, which cash proceeds will be maintained in Escrow Agents
IOLTA Trust Account (the "Proceeds") (the "Shares" and "Proceeds" being
collectively referred to herein as the "Escrowed Property");
WHEREAS, the parties hereto do hereby appoint Escrow Agent to act as
escrow agent to receive, hold, and release the Escrowed Property in accordance
with the terms and conditions of this Agreement, and Escrow Agent accepts that
appointment. Escrow Agent will not charge the parties a fee for acting solely in
the capacity of escrow agent.
IT IS HEREBY understood and agreed and Purchaser and Seller do hereby
direct Escrow Agent, upon receipt of the Escrowed Property, to maintain the same
in escrow until released in accordance with the terms and conditions hereof.
IT IS HEREBY understood and agreed that the Escrowed Property will be
released to Seller and deemed delivered to Seller by Purchaser only on the
express terms and conditions hereof. On the 18-month anniversary of this
Agreement, Escrow Agent shall release all of the Shares or the Proceeds from
such Shares to Seller upon receipt by Escrow Agent of a statement signed by the
President or any Vice President of Purchaser in the form attached hereto as
Exhibit "A" certifying that Seller has complied with his obligations and paid in
full any of his liabilities under that certain Securities Purchase Agreement
between Seller and Purchaser of even date herewith (the "SPA") and that certain
Employment Agreement between Seller and Tex-Air Helicopters, Inc., a Texas
corporation (the "Company") of even date herewith (the "Employment Agreement")
(the "SPA" and "Employment Agreement" being collectively referred to herein as
the "Operative Agreements"). Upon Escrow Agent's release of the Escrowed
Property, the escrow created under this Agreement will terminate and Escrow
Agent will be released from all further responsibility.
IT IS FURTHER understood and agreed that in the event the conditions
for release of the Escrowed Property are not met, the Escrow Agent, in its sole
discretion, may continue to hold said Escrowed Property or may invoke a
concursus or interpleader proceeding in any state or federal court located in
Houston, Xxxxxx County, Texas, and tender into the registry of the court the
Escrowed Property.
FURTHER, Seller shall have the right to instruct Escrow Agent in
writing to release to Seller's broker Comerica Securities (the "Broker") all or
any of the Shares for sale at any time that the trading price of the Shares
exceeds $50.00 per Share; provided, however, (i) such Shares shall only be sold
for cash in an amount in excess of $50.00 per Share and (ii) the cash purchase
price of the Shares less commissions and taxes which must be paid or withheld by
Seller (the "Proceeds") shall be promptly wire transferred by the Broker to
Escrow Agent's IOLTA trust account, banking details to be provided by Escrow
Agent at such time.
FURTHER, that in consideration of the Escrow Agent acting for the
benefit of and at the request of Purchaser and Seller, the Purchaser and the
Seller shall and do at all times hereafter well and sufficiently save, defend,
keep harmless and indemnify the Escrow Agent, from all loss, damage, cost,
charge, liability or expense (excepting therefrom any loss, damage, costs,
charge, liability or expense resulting from Escrow Agent's willful misconduct or
gross negligence), including, but not limited to, court costs and attorney's
fees, which may result from the obligation and duty as Escrow Agent accepted by
the said Escrow Agent, including, but not limited to, situations in which
disputes arise concerning release of the Escrowed Property. Purchaser and Seller
shall be jointly and severally bound to Escrow Agent for all such amounts, but
Purchaser and Seller will have a right of contribution against each other based
on their comparative fault. If neither is at fault, their liability to Escrow
Agent shall be equally apportioned between them, and each may recover from the
other any amount paid in excess of that amount.
FURTHER, we, the undersigned understand that Escrow Agent executes
this Agreement solely for the purpose of accepting the escrow created by this
Agreement, on the terms and conditions set forth in this Agreement, and
undertakes to perform the duties, but only the duties, specifically set forth in
this Agreement. Escrow Agent is not required to secure the performance of its
duties by bond or otherwise. Without limiting the generality of the foregoing,
the responsibilities of Escrow Agent are further defined, limited, and qualified
by the following:
(a) The duties and obligations of Escrow Agent shall be
determined by the express provisions of this Agreement, and this
Agreement is not to be interpreted or construed to impose on Escrow Agent any
implied duties, covenants, or obligations of any kind whatsoever;
(b) Escrow Agent shall receive, hold, and release the
Escrowed Property in accordance with this Agreement;
(c) Escrow Agent may execute any of its rights, powers or
responsibilities under this Agreement either directly or by or through
its agents, partners, employees, or attorneys, and it shall not be liable for
any error of judgment made in good faith by an authorized agent, partner,
employee or attorney of it, unless it is proven that Escrow Agent was guilty of
2
gross negligence or deliberate and willful misconduct in ascertaining the
pertinent facts or in employing or supervising the agent, partner, employee, or
attorney;
(d) Escrow Agent shall not be liable to any person with
respect to any action taken, suffered or omitted by it in accordance with
this Agreement, a written decision of an arbitrator or arbitration panel,
written joint or concurring instructions signed by Purchaser and Seller or an
order issued by a court of competent jurisdiction;
(e) Escrow Agent may rely on any document given to it
pursuant to this Agreement without verifying the authenticity of it, the
genuineness of any signature on it or the authority of the person signing the
document or purporting to give it to Escrow Agent, and Escrow Agent is not
obligated to examine or pass upon the validity, execution, binding effect or
sufficiency of this Agreement or any amendment or supplement to either of them;
(f) Escrow Agent shall be free from any liability when
acting in good faith in accordance with any written advice or opinion
received from legal counsel, an independent certified public accountant or other
expert rendering advice or an opinion within his area of expertise, and the
expenses thereof shall be joint and several obligations of the Parties;
(g) Escrow Agent does not have any duty to make any
inquiry, determination, or verification with respect to the performance by
Seller, Purchaser or any other party of any provision of this Agreement or the
Operative Agreements;
(h) Escrow Agent does not have any duty to give the
property held in escrow by it under this Agreement any greater degree of care
than it gives its own similar property, and Escrow Agent makes no representation
as to the value, validity, genuineness, or collectibility of any security or
other document or instrument delivered to it; and
(i) Seller acknowledges that Escrow Agent is legal counsel
for Purchaser and represents it in connection with the transactions described in
this Agreement and the Operative Agreements, and Seller consents to Escrow Agent
representing Purchaser in all claims, disputes, matters and things directly or
indirectly arising from or related to transactions described in this Agreement
or the Operative Agreements; it being specifically understood and agreed that
Escrow Agent can represent Purchaser in any dispute with, or claim, arbitration
or legal proceeding against Seller or any other person hereafter arising
notwithstanding then acting as Escrow Agent hereunder.
Each notice, demand, consent, request, approval, and other
communication required or permitted by this Agreement (whether or not this
Agreement expressly states that it must be in writing) will be valid only if it
is in writing and delivered personally or by telecopy, commercial courier, or
3
United States certified or registered mail, return receipt requested and postage
prepaid, and addressed by the sender to the other party as follows:
(i) if to Purchaser, to:
Offshore Aviation Inc.
00000 Xxxxxxxx, Xxxxx 000Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxx
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to:
Ms. Xxxxx Gran
SEACOR SMIT Inc.
Xxxxx Xxxxx
0 Xxxxx Xxx Xxxxxx
Xxxxxx, XX XX0X 0XX
Fax: No.: 00000-000-0000
(ii) if to Seller, to:
Xxxxxx X. Xxxxx
0000 Xxxx X. Xxxxxx
Xxxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to:
Xxxx Xxxxxxx, Esq.
Holland Law Xxxxxx
0000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxx. XX 00000-0000
Phone: 000-000-0000
Fax: 000-000-0000
(iii) if to Escrow Agent, to:
Bell, Ryniker, Xxxxxxxxxx & Xxxx, P.C.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxx, Esq.
Phone: 000-000-0000
Fax: 000-000-0000
4
or to such other address as the intended recipient designates by written notice
to the sender that is given in accordance with this section. A validly given
notice, demand, consent, request, approval, or other communication will be
effective and deemed received hereunder on the earlier of its receipt, if
delivered personally or by telecopy (with receipt of facsimile confirmation) or
on the day of delivery if delivered by commercial courier or on the fifth day
after it is postmarked by the United States Postal Service, if delivered by
United States certified or registered mail, return receipt requested and postage
prepaid. Each party shall promptly notify the other of any change in its mailing
address.
This Agreement shall be governed and construed in accordance
with the laws of the State of Texas, U.S.A., excluding any conflicts of law rule
which may refer to the laws of another jurisdiction. The parties hereby
irrevocably consent to the exclusive jurisdiction of the state and federal
courts sitting in Houston, Texas, and irrevocably appoint the Texas Secretary of
State as their agent for service of process unless the said party has appointed
an agent for service of process in Texas. This Agreement constitutes the entire
agreement between the parties concerning this subject matter, and may not be
amended, modified, or waived except in writing signed by the parties. All oral
or written representations and warranties, if any, made by the parties in
connection herewith are deemed to be merged and incorporated herein, and neither
party shall be entitled to rely on any representation or warranty not expressly
set forth in this Agreement. This Agreement shall inure only to the benefit of
the parties hereto and their successors and permitted assigns, and may not be
assigned by either party without the other party's prior written consent. Should
any clause or portion of this Agreement be deemed invalid, void, or otherwise
unenforceable, the remainder of this Agreement shall remain in full force and
effect as written. Notices under this Agreement shall be given to the parties at
their addresses indicated herein . Notices shall be effective upon receipt. This
Agreement may be signed in multiple counterparts, each of which taken together
shall constitute one and the same instrument. Facsimile signature shall have the
effect of delivered originals.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed effective the day and year first above written.
Seller:
---------------------------------
XXXXXX X. XXXXX
5
Purchaser:
OFFSHORE AVIATION INC.
By:
-----------------------------
Name:
Title:
Escrow Agent:
BELL, RYNIKER, XXXXXXXXXX & XXXX, P.C.
BY:
-----------------------------------
Xxxxxxx Xxxx, Esq.
6
EMPLOYMENT AGREEMENT
(Exhibit 5.8(a))
This Employment Agreement (this "Agreement") by and between, Tex-Air
Helicopters, Inc., a Texas corporation ("Company"), and Xxxxxx X. Xxxxx
("Employee") is dated as of December 31, 2002.
The Company and the Employee agree as follows:
1. Employment. Subject to the provisions for termination as
hereinafter provided, Employee's employment with company shall be pursuant to
the terms of this Agreement and shall be for the period commencing on January 1,
2003 and expiring on the third anniversary thereof. Such period of employment,
as may be continued under the provisions of Section 2 if applicable, is referred
to as the "Employment Term".
2. Continuation. If Employee continues to serve as an employee of the
Company after the third anniversary hereof, employee's continued employment
shall be subject to the terms of this Agreement but shall be terminable at will
by either Company or Employee and such continued period of employment shall be
included in the Employment Term.
3. Duties. The Employee shall serve as President of the Company and
shall perform, faithfully and diligently, such duties, and shall have such
responsibilities appropriate to such position, as shall be assigned to him from
time to time by the Chairman of the Company or his designee, to whom he shall
report. The employee shall devote his full time and attention to his employment
with the Company.
4. Compensation and Benefits.
(a) Salary. During the Employment Term, the Company will provide
Employee an annual base salary of $175,000 per year, less state and federal
withholding, social security, and other standard payroll deductions as shall be
required to be withheld by applicable law or regulations, payable to Employee in
accordance with the policies of the Company as from time to time in effect, but
in no event less than twice each month.
(b) Other Benefits. Employee shall be permitted, during the
Employment Term, if and to the extent eligible, to participate in any vacation
benefits, group life, hospitalization or disability insurance plans, health
programs, pension plans, 401(k) plans, profit sharing plans or similar benefit
plans or other so-called "fringe benefits" offered by Company (collectively,
"Benefits"), which may be available to other employees of the Company on terms
no less favorable to the Employee than the terms offered to other such Company
employees.
(c) Incentive Compensation.
(i) Stock. Subject to the provisions contained in Paragraph
5 hereof, Employee shall receive as a bonus for the continued
performance of this Agreement 1000 shares of restricted stock in
SEACOR Smit Inc., 333 of such shares on the first and second
anniversary dates of this agreement, plus one day, and 334 of such
shares on the third anniversary date of this Agreement plus one day,
and be subject to the terms and conditions contained in the Seacor
Restricted Stock Agreement, attached as Exhibit A hereto.
(d) General Business Expenses. The Company shall pay or reimburse the
Employee for all authorized reasonable expenses authorized under Company's
reimbursement policies that are necessarily incurred by the Employee during the
Employment Term in the performance of the Employee's service under this
Agreement. Such payment shall be made upon presentation of such documents as the
Company customarily requires of its employees prior to making such payments or
reimbursements.
5. Termination of Employment.
(a) During the Employment Term, the Employee's status as an employee
will terminate immediately and automatically upon the earliest to occur of: (i)
the death or "Disability" (as defined below) of the Employee; (ii) the discharge
of the Employee by the Company "For Cause" (as defined below); or (iii) the
expiration of the Employment Term.
The Employee hereby accepts such employment subject to the terms and conditions
hereof.
(b) As used herein, "For Cause" shall mean any one or more of the
following: (i) material or repeated violations by the Employee (after notice
thereof from the Company) of the terms of this Agreement or the Employee's
material or repeated failure (after notice thereof from the Company) to perform
the Employee's duties in a manner consistent with the Employee's position; (ii)
excessive absenteeism on the part of the Employee not related to illness or
disability; (iii) the Employee's indictment for a felony or conviction of a
misdemeanor involving moral turpitude; (iv) the Employee's commission of fraud,
embezzlement, theft or other acts involving dishonesty, or crimes constituting
moral turpitude, in any case whether or not involving the Company, that in the
opinion of the President, renders the Employee's continued employment harmful to
the Company; (v) substance abuse on the part of the Employee; or (vi) knowing
and material failure by the Employee to comply with applicable laws and
regulations relating to the business of the Company or its Affiliates; or (vii)
the Employee acting in bad faith relative to the Company's business interests.
In the event this Agreement is terminated by the Company For Cause, Employee
shall be entitled to receive only that Salary earned and Benefits accrued
through the date of termination, and without limitation, will not be entitled to
receive any Stock, referred to in sub-paragraph 4 (c) (ii) of this Agreement,
not then vested.
(c) As used herein, "Disability" shall mean a physical or mental
incapacity of the Employee that, in the good faith determination of the Company
has prevented the Employee from performing the duties assigned the Employee by
the Company for 30 consecutive days or for a period of more than 60 days in the
aggregate in any 12-month period and that, in the determination of the Company
after consultation with a medical doctor appointed by the Company, may be
expected to prevent the Employee for any period of time thereafter from devoting
the Employee's full time and energies (or such lesser time and energies as may
be acceptable to the Company in its sole discretion) to the Employee's duties as
provided hereunder. The Employee's employment hereunder, except as otherwise
agreed to in writing between the Company and the Employee, shall cease as of the
date of such determination. The Employee agrees to submit to medical
examinations, at the Company's sole cost and expense, to determine whether a
Disability exists pursuant to reasonable requests that the Company may make from
time to time. In the event this Agreement is terminated by the Company under
sub-paragraph 5 (a) (i) hereof, Employee or his legal representatives, as
applicable, shall be entitled to receive all Salary earned, plus any Stock,
2
referred to in sub-paragraph 4 (c) (i) of this Agreement, shall vest
immediately, plus any and all Benefits then accrued, up to the date of the
employee's death, or the date of termination in the event of disability, as
applicable, except that to the extent that Employee remains employed during the
period of any such physical or mental incapacity as provided above, the Salary
otherwise payable to the Employee may, in the absolute discretion of the
Company, be reduced by the amount of any disability benefits or payments
received by the Employee from the Company or any disability or health plan
funded in whole or in part by the Company (excluding health insurance benefits
or other reimbursement of medical expenses attributable to insurance policies
that have not been funded in any part by the Company).
(d) Additional Grounds for Termination by Company. The Company may
terminate Employee's employment: (a) at will, at any time, without cause; (b)
upon the bankruptcy or insolvency of Company; or (c) in connection with the
dissolution or liquidation of the Company. In event of termination by the
company under this Section 5(d), the Company shall be obligated (but shall only
be obligated) to Employee for the payment, at the times and upon the terms
provided for herein, of the Employee's Salary for the number of full months
remaining in the Term of this Agreement, together with all unpaid Benefits
awarded or accrued up to the date of termination, plus any Stock, referred to in
sub-paragraph 4 (c) (i) of this Agreement, shall vest immediately.
(e) Termination by Employee. Any termination of this Agreement by the
Employee shall entitle the Company to discontinue payment of all Compensation
and Benefits, described in Paragraph 4 of this Agreement, accruing from and
after the date of termination, and without limitation, the Employee will not be
entitled to receive any Stock, referred to in sub-paragraph 4 (c) (i) of this
Agreement, not then vested.
6. Confidential Information. The Employee shall hold, both during the
Employment Term and for a period of three (3) years thereafter, in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its subsidiaries or
corporate affiliates and their respective businesses and operations, including,
without limitation, customer lists, pricing, bid strategy, business strategies,
computer files and addresses, and corporate planning, which shall have been
obtained by the Employee during the Employee's employment (whether prior to or
after the date hereof) and which shall not have become public knowledge (other
than by acts of the Employee or his representatives in violation of this
Agreement or by third parties in violation of an obligation of confidentiality
to Company). The Employee agrees (i) that, without the prior written consent of
the Company or as may be otherwise required by law or legal process, he will not
communicate or divulge any such information, knowledge or data to any party
other than the Company and (ii) to deliver promptly to the Company upon its
written request any confidential information, knowledge or data in his
possession, whether produced by the Company or any of its subsidiaries and
corporate and joint ventures or any past, current or prospective activity of the
Company or any of its subsidiaries and joint ventures. The obligations of the
Employee set forth in this Section 6 shall apply during the Employment Term and
shall survive termination of this Agreement and/or the termination of the
Employee's services for a period of three (3) years thereafter, regardless of
the reason for such termination.
7. No Tampering. While Employee is employed by the Company and for
three (3) years following the termination of Employee's employment with the
Company, the Employee shall not request, induce or attempt to influence any
3
customers of the Company that have done business with or potential customers
which have been in contact with the Company to curtail or cancel any business
they may transact with the Company or request, induce or attempt to influence
any employee of the Company to terminate his or her employment with the Company.
The obligations of the Employee set forth in this Section 7 shall apply during
the Employment Term and shall survive termination of this Agreement and/or the
termination of the Employee's services under this Agreement for a period of
three (3) years thereafter, regardless of the reason for such termination.
8. Limited Covenant Not to Compete.
(a) While Employee is employed by the Company and for a period of two
(2) years following the Employment Term, but in no event less than the five (5)
years from the date of this Agreement, the Employee will not, directly or
indirectly, own, manage, operate, control, be employed by, participate in, or be
connected in any manner with the ownership, management, operation or control of
any company or other business enterprise engaged, directly or indirectly, in the
providing of helicopter transportation services for the offshore oil and gas
exploration and production industry in the Gulf of Mexico, so long as the
Company and its Parent or any of its Affiliates or joint ventures is engaged in
such business; provided, however, that nothing contained herein shall prohibit
the Employee from making investments in any publicly held company which do not
exceed in the aggregate two (2) percent of the equity interest of such company.
(b) As part of the consideration for the compensation and benefits to
be paid to the Employee hereunder; to protect the trade secrets and confidential
information of Company and its affiliates that have been and will in the future
be disclosed or entrusted to the Employee, the business goodwill of the Company
and its affiliates that has been and will in the future be developed in the
Employee, or the business opportunities that have been and will in the future be
disclosed or entrusted to the Employee by the Company and its affiliates; and,
as an additional incentive for the Company to enter in this Agreement, the
Company and the Employee agree to the non-competition obligations hereunder. The
obligations of the Employee set forth in this Section 8 shall apply during the
Employment Term and shall survive termination of this Agreement and/or the
termination of the Employee's services under this Agreement for a period of two
(2) years, but in no event less than the five (5) years from the date of this
Agreement, regardless of the reason for such termination.
9. Statements Concerning the Company. The Employee shall refrain,
both during the Employment Term and following the termination of Employee's
employment by the Company for any reason, from publishing any oral or written
statement about the Company, any of its affiliates, or any of such entities'
officers, employees, agents or representatives that are slanderous, libelous or
defamatory; or that disclose private or confidential information about the
Company, any of its affiliates, or any of such entities' business affairs,
officers, employees, agents or representatives; or that constitute an intrusion
into the seclusion or private lives of the Company, any of its affiliates, or
any of such entities' officers, employees, agents or representative or that give
rise to unreasonable publicity about the private lives of the Company, any of
its affiliates, or any of such entities' officers, employees, agents or
representatives; or that place the Company, any of its affiliates, or any of
such entities' officers, employees, agents or representatives in a false light
before the public; or that constitute a misappropriation of the name or likeness
4
of the Company, any of its affiliates, or any of such entities, officers,
employees, agents or representatives. A violation or threatened violation of
this prohibition may be enjoined by the courts. The rights afforded the Company
and its affiliates under this provision are in addition to any and all rights
and remedies otherwise afforded by law. The obligations of the Employee set
forth in this Section 9 shall apply during the Employment Term and shall survive
termination of this Agreement and/or the termination of the Employee's services,
regardless of the reason for such termination.
10. Property of the Company. All memoranda, lists, notes, records,
manuals and related documents and other documents or papers (and all copies
thereof) relating to the Company or its Affiliates, including such items stored
in computer memories, microfiche or by any other means, made or compiled by or
on behalf of Employee, or made available to the Employee relating to the Company
and its Affiliates, shall be the property of the Company and its Affiliates, and
shall be delivered to the Company and its Affiliates promptly upon termination
of the Employee's employment with the Company and its Affiliates or at any other
time upon request; provided, however, that Employee's address books, diaries,
and rolodex files shall be deemed to be property of Employee.
11. Injunctive Relief. In the event of a breach or threatened breach
by the Employee of the provisions of Sections 6, 7, 8, 9 or 10 (the "Restrictive
Covenants") of this Agreement during or after the term of this Agreement, the
Company shall be entitled to injunctive relief restraining the Employee from
violation of such sections. Employee agrees not to contest same. Employee
further agrees that Company shall not be required to post any bond in any amount
as a condition to the granting of injunctive relief to Company. Nothing herein
shall be construed as prohibiting the Company from pursuing any other remedy at
law or in equity it may have in the event of breach or threatened breach of this
Agreement by the Employee.
12. Binding Effect.
(a) This Agreement shall be binding upon and inure to the benefit of
the Company and any of its successors and assigns.
(b) This Agreement is personal to the Employee and shall not be
assignable by the Employee without the consent of the Company (there being no
obligation to give such consent) other than such rights or benefits as are
transferred by will or the laws of descent and distribution.
(c) The Company will require any successor or assign (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the assets or business of the Company (i) to assume
unconditionally and expressly this Agreement and (ii) to agree to perform all of
its obligations under this Agreement in the same manner and to the same extent
as would have been required of the Company had no assignment or succession
occurred, such assumption to be set forth in a writing reasonably satisfactory
to the Employee. In the event of any such assignment or succession, the term
"Company" as used in this Agreement shall refer also to such successor or
assign.
13. Notices. Any notice or other communication required under this
Agreement shall be in writing, shall be deemed to have been given and received
when delivered in person, or, if mailed, shall be deemed to have been given when
5
deposited in the United States mail, first class, registered or certified,
return receipt requested, with proper postage prepaid, and shall be deemed to
have been received on the third business day thereafter, and shall be addressed
as follows:
If to the Company, addressed to:
Tex-Air Helicopters, Inc.
0000 Xxxx X. Xxxxxx
Xxxxxxx, XX 00000
Attn: c/o Xxxxxx X. Xxxx
Fax No.: 000-000-0000
With a copy to:
Xx. Xxxxxx X. Xxxx
Offshore Aviation Inc.
00000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Fax No.: 000-000-0000
Ms. Xxxxx Gran
SEACOR SMIT Inc.
Xxxxx Xxxxx
0 Xxxxx Xxx Xxxxxx
Xxxxxx, XX XX0X 0XX
Fax: No.: 00000-000-0000
If to the Employee, addressed to:
Xx. Xxxxxx Xxxxx
0000 Xxxx X. Xxxxxx
Xxxxxxx, XX 00000
Fax No.: 000-000-0000
With a copy to:
Xxxx Xxxxxxx, Esq.
Holland Law Xxxxxx
0000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxx. XX 00000-0000
Fax: 000-000-0000
6
or such address as to which any party hereto may have notified the other in
writing.
14. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Texas.
15. Entire Agreement. This Agreement and the documents referred to
herein, contain or refer to the entire arrangement or understanding between the
Employee and the Company relating to the employment of the Employee by the
Company, and all prior negotiations, communications, commitments, agreements,
and understandings, written or verbal, are merged and incorporated herein. This
Agreement supercedes any other employment or non-competition agreements existing
between the parties. No provision of the Agreement, may be modified or amended
except by an instrument in writing signed by or for both parties hereto.
16. Severability. Employee acknowledges and agrees that the
Restrictive Covenants are reasonable and valid in duration and geographical
scope and in all other respects. If any court determines that any of the
Restrictive Covenants, or any part thereof, is unenforceable because of the
duration or geographical scope of such provision, such court shall have the
power to reduce the duration or scope of such provision, as the case may be, to
the extent necessary to bring such provision in compliance with the maximum
duration or geographical limitation permitted under the applicable law, and, in
its reduced form, such provision shall then be enforceable. If any court
determines that any Restrictive Covenant, or any part thereof, is invalid or
unenforceable, and not subject to reformation as provided above, the remainder
of the restrictive Covenants shall not thereby be affected and shall be given
full effect without regard to the invalid portions. Further, if any term or
provision of this Agreement, or the application thereof to any person or
circumstance, shall at any time or to any extent be invalid or unenforceable,
the remainder of this Agreement, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term and provision of this
Agreement shall be valid and enforced to the fullest extent permitted by law.
17. Waiver of Breach. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach thereof.
18. Remedies Not Exclusive. No remedy specified herein shall be
deemed to be such party's exclusive remedy, and accordingly, in addition to all
of the rights and remedies provided for in this Agreement, the parties shall
have all other rights and remedies provided to them by applicable law, rule or
regulation.
19. Beneficiaries. Whenever this Agreement provides for any payment
to be made to the Employee or his estate, such payment may be made instead to
such beneficiary or beneficiaries as the Employee may have designated in writing
and filed with the Company. The Employee shall have the right to revoke any such
designation from time to time and to redesignate any beneficiary or
beneficiaries by written notice to the Company.
7
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument. Facsimile signatures
shall have the effect of delivered originals.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
TEX-AIR HELICOPTERS, INC.
By:
------------------------------
Name:
Title:
XXXXXX X. XXXXX
----------------------------------
8
QUIT CLAIM DEED
(Exhibit 11.1)
STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF XXXXXX )
THAT XXXXXX X. XXXXX, Trustee (hereinafter called "Grantor"), for and
in consideration of Ten Dollars ($10.00) and other good and valuable
consideration in hand paid to Grantor by Xxxxxx X. Xxxxx, an individual resident
of _______ County, Texas ("Grantee"), the receipt and sufficiency of which are
hereby acknowledged and confessed, has GRANTED, BARGAINED, SOLD, and CONVEYED,
and by these presents does GRANT, BARGAIN, SELL, and CONVEY unto Grantee,
without representation or warranty of any kind, express, implied, or otherwise,
all right, title, and interest of Grantor in the following described property,
to wit:
1,038.75 acres, more or less, out of and being part of Survey Nos. 108
and 818, in Xxxxxxx County, and Survey Nos. 108, 109 and 818 in Xxxxxx
County, GWT&P RR Company, located in Xxxxxx County, Texas, with said
Tract being more fully described my (sic) metes and bounds in Exhibit
"A", attached hereto and made a part hereof for all purposes, and 83.42
acres, more or less, located in Xxxxxxx County, Texas, and being
referred to as Tract "B" in the metes and bounds description on Exhibit
"B", attached hereto and made a part hereof for all purposes, and 0.014
acres, more or less, out of Survey Xx. 000, X.X. XXXXX, Xxxxxxxx Xx.
0000, located in Xxxxxxx County, Texas, referred to as Tract "C" on the
metes and bounds description in Exhibit "C", attached hereto and made a
part hereof for all purposes, and 43.04 acres, more or less, out of
Xxxxxx Xx. 000, XX Xxxxxxx Company, located in Xxxxxx and Xxxxxxx
County, Texas, referred to as Tract "D" in the metes and bounds
description in Exhibit "D", attached hereto and made a part hereof for
all purposes.
SAVE AND EXCEPT and there is hereby reserved unto Grantor, his heirs,
personal representatives, successors and assigns, all of the
undivided interest in the oil, gas and other minerals in and under,
and that may be produced from said lands, and all royalty in all the
oil, gas and other minerals in and under and that may be produced
from said lands, it being understood and agreed that this interest
shall be for the benefit of and be owned by the Grantor, and his
successors in interest, and that in no event by warranty, estoppel,
or otherwise, shall Grantee or Grantee's successors in interest
acquire any part of said interest as a result of this conveyance.
THIS CONVEYANCE is made and accepted subject to all reservation of
all minerals. This conveyance is further made expressly subject to all
rights-of-way, conditions, covenants, easements, restrictions, reservations, and
exceptions provided by statutes or of record affecting the premises, and subject
to all ordinances, statutes and regulations of competent governmental authority
applicable to and enforceable against the above described premises.
THE PROPERTY IS HEREBY CONVEYED TO GRANTEE ON AN "AS IS, WHERE IS"
BASIS, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND
GRANTEE AGREES TO ACCEPT DELIVERY OF THE PROPERTY IN SUCH CONDITION. NO OTHER
OBLIGATIONS, REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE MADE
WITH RESPECT TO THE MAINTENANCE, REPAIR, CONDITION, VALUE, MARKETABILITY,
MERCHANTABILITY, USEFULNESS OR FITNESS FOR ANY PURPOSE, OF THE PROPERTY
INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF
MERCHANTABILITY, OR ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE. GRANTEE HEREBY WAIVES ALL CLAIMS FOR DAMAGES BECAUSE OF DEFECTS,
WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE PROPERTY, IT BEING THE INTENTION
OF GRANTEE AND GRANTOR THAT THE PROPERTY BE CONVEYED TO GRANTEE IN ITS PRESENT
CONDITION AND STATE OF CONDITION "AS IS, WHERE IS", WITH ALL FAULTS, BOTH KNOWN
OR UNKNOWN. FURTHER TO THE FOREGOING, GRANTEE HEREBY WAIVES EACH AND EVERY CLAIM
FOR RECOVERY AGAINST GRANTOR FOR ANY AND ALL LOSS OR DAMAGE TO OR CAUSED BY THE
PROPERTY INCIDENT TO, CONNECTED WITH, ARISING OUT OF OR RELATING, DIRECTLY OR
INDIRECTLY, TO THE USE, OWNERSHIP, MAINTENANCE, REPAIR, DISPOSAL, OR CONDITION
THEREOF, WHETHER IN CONTRACT OR TORT, AND GRANTEE SHALL RELEASE, DEFEND,
INDEMNIFY, AND HOLD HARMLESS GRANTOR FROM ANY LOSS OR LIABILITY THEREFOR,
INCLUDING WITHOUT LIMITATION ANY CLAIMS FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES,
LOSS OF PROFIT, OR LOSS OF BUSINESS OPPORTUNITY.
FOR THE SAME CONSIDERATION, GRANTEE SHALL RELEASE, DEFEND, INDEMNIFY,
AND HOLD HARMLESS GRANTOR FROM AND AGAINST ANY CLAIMS, DEMANDS, LOSSES OR
LIABILITIES OF ANY KIND FOR ILLNESS, INJURY, OR DEATH, TO ANY PERSON, OR LOSS OR
LOSS OF USE OR DAMAGE TO PROPERTY OF GRANTEE OR ANY THIRD PARTY, OR FOR
POLLUTION OR CONTAMINATION CLAIMS OF ANY KIND, WHETHER AT COMMON LAW, IN EQUITY,
OR STATUTE OR REGULATION, UNDER THE LAWS OF THE UNITED STATES OF AMERICA, ANY
STATE, OR ANY POLITICAL SUBDIVISION THEREOF, OR OF ANY OTHER COUNTRY, STATE, OR
POLITICAL SUBDIVISION THEREOF, INCLUDING CLEAN UP, REMOVAL, PROPERTY DAMAGE, AND
FINES OR PENALTIES, ACCRUING BOTH AND AFTER THE EXECUTION OF THIS XXXX OF SALE,
WHICH ARE INCIDENT TO, CONNECTED WITH, ARISE OUT OF OR RELATE, DIRECTLY OR
INDIRECTLY, TO THE USE, OWNERSHIP, MAINTENANCE, REPAIR, DISPOSAL, OR CONDITION
OF THE PROPERTY.
ALL RELEASES, INDEMNITIES, AND LIMITATION OF DAMAGES IN THIS DEED
SHALL APPLY REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY SOLE OR CONCURRENT
NEGLIGENCE OF GRANTOR OR THE OR STRICT LIABILITY OR ANY DEFECT IN PREMISES,
EQUIPMENT OR MATERIAL, AND REGARDLESS OF WHETHER PRE-EXISTING THE EXECUTION OF
THIS DEED.
TO HAVE AND TO HOLD the right, title, and interest of Grantor in the
above described premises, subject to the above, together with all and singular
the rights and appurtenances thereto in anywise belonging, with said Grantee,
its heirs, successors, and assigns, forever.
EXECUTED and DELIVERED this ______ day of ________________, 200__.
------------------------------------
XXXXXX X. XXXXX, TRUSTEE
STATE OF TEXAS )
COUNTY OF XXXXXX )
THIS INSTRUMENT was acknowledged before me on ____________, ____,
200___ by Xxxxxx X. Xxxxx, Trustee.
---------------------------------------
NOTARY PUBLIC IN AND FOR THE STATE
OF TEXAS
My commission expires: __________________
QUIT CLAIM DEED
(Exhibit 11.1)
STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF XXXXXX )
THAT XXXXXX X. XXXXX, Trustee (hereinafter called "Grantor"), for and
in consideration of Ten Dollars ($10.00) and other good and valuable
consideration in hand paid to Grantor by Xxxxxx X Xxxxx, an individual resident
of _______ County, Texas ("Grantee"), the receipt and sufficiency of which are
hereby acknowledged and confessed, has GRANTED, BARGAINED, SOLD, and CONVEYED,
and by these presents does GRANT, BARGAIN, SELL, and CONVEY unto Grantee,
without representation or warranty of any kind, express, implied, or otherwise,
all right, title, and interest of Grantor in the following described property to
wit:
1,944.72 acres, more or less, out of and being part of Surveys
Numbered 106, 107, 108, 109, 110 and 111 in Xxxxxx County, GWT&P RR
Company, located in Xxxxxx County, Texas, with said Tract being more
fully described by metes and bounds in Exhibit "A", attached hereto
and made a part hereof for all purposes, and 2.14 acres, more or
less, located in Xxxxxx County, Texas, out of Survey 106, Abstract
2122, and being referred to as Tract "G" in the metes and bounds
description on Exhibit "B", attached hereto and made a part hereof
for all purposes, and 4.13 acres, more or less, out of Survey Xx.
000, Xxxxxxxx Xx. 0000, located in Xxxxxx County, Texas, referred to
as Tract "H" on the metes and bounds description in Exhibit "C",
attached hereto and made a part hereof for all purposes, and 3.49
acres, more or less, out of Survey No. 111, located in Xxxxxx County,
Texas, referred to as Tract "I" in the metes and bounds description
in Exhibit "D" attached hereto and made a part hereof for all
purposes.
SAVE AND EXCEPT and there is hereby reserved unto Grantor, his heirs,
personal representatives, successors and assigns, all of the
undivided interest in the oil, gas and other minerals in and under,
and that may be produced from said lands, and all royalty in all the
oil, gas and other minerals in and under and that may be produced
from said lands, it being understood and agreed that this interest
shall be for the benefit of and be owned by the Grantor, and his
successors in interest, and that in no event by warranty, estoppel,
or otherwise, shall Grantee or Grantee's successors in interest
acquire any part of said interest as a result of this conveyance.
THIS CONVEYANCE is made and accepted subject to all reservation of
all minerals. This conveyance is further made expressly subject to all
rights-of-way, conditions, covenants, easements, restrictions, reservations, and
exceptions provided by statutes or of record affecting the premises, and subject
to all ordinances, statutes and regulations of competent governmental authority
applicable to and enforceable against the above described premises.
THE PROPERTY IS HEREBY CONVEYED TO GRANTEE ON AN "AS IS, WHERE IS"
BASIS, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND
GRANTEE AGREES TO ACCEPT DELIVERY OF THE PROPERTY IN SUCH CONDITION. NO OTHER
OBLIGATIONS, REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE MADE
WITH RESPECT TO THE MAINTENANCE, REPAIR, CONDITION, VALUE, MARKETABILITY,
MERCHANTABILITY, USEFULNESS OR FITNESS FOR ANY PURPOSE, OF THE PROPERTY
INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF
MERCHANTABILITY, OR ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE. GRANTEE HEREBY WAIVES ALL CLAIMS FOR DAMAGES BECAUSE OF DEFECTS,
WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE PROPERTY, IT BEING THE INTENTION
OF GRANTEE AND GRANTOR THAT THE PROPERTY BE CONVEYED TO GRANTEE IN ITS PRESENT
CONDITION AND STATE OF CONDITION "AS IS, WHERE IS", WITH ALL FAULTS, BOTH KNOWN
OR UNKNOWN. FURTHER TO THE FOREGOING, GRANTEE HEREBY WAIVES EACH AND EVERY CLAIM
FOR RECOVERY AGAINST GRANTOR FOR ANY AND ALL LOSS OR DAMAGE TO OR CAUSED BY THE
PROPERTY INCIDENT TO, CONNECTED WITH, ARISING OUT OF OR RELATING, DIRECTLY OR
INDIRECTLY, TO THE USE, OWNERSHIP, MAINTENANCE, REPAIR, DISPOSAL, OR CONDITION
THEREOF, WHETHER IN CONTRACT OR TORT, AND GRANTEE SHALL RELEASE, DEFEND,
INDEMNIFY, AND HOLD HARMLESS GRANTOR FROM ANY LOSS OR LIABILITY THEREFOR,
INCLUDING WITHOUT LIMITATION ANY CLAIMS FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES,
LOSS OF PROFIT, OR LOSS OF BUSINESS OPPORTUNITY.
FOR THE SAME CONSIDERATION, GRANTEE SHALL RELEASE, DEFEND, INDEMNIFY,
AND HOLD HARMLESS GRANTOR FROM AND AGAINST ANY CLAIMS, DEMANDS, LOSSES OR
LIABILITIES OF ANY KIND FOR ILLNESS, INJURY, OR DEATH, TO ANY PERSON, OR LOSS OR
LOSS OF USE OR DAMAGE TO PROPERTY OF GRANTEE OR ANY THIRD PARTY, OR FOR
POLLUTION OR CONTAMINATION CLAIMS OF ANY KIND, WHETHER AT COMMON LAW, IN EQUITY,
OR STATUTE OR REGULATION, UNDER THE LAWS OF THE UNITED STATES OF AMERICA, ANY
STATE, OR ANY POLITICAL SUBDIVISION THEREOF, OR OF ANY OTHER COUNTRY, STATE, OR
POLITICAL SUBDIVISION THEREOF, INCLUDING CLEAN UP, REMOVAL, PROPERTY DAMAGE, AND
FINES OR PENALTIES, ACCRUING BOTH AND AFTER THE EXECUTION OF THIS XXXX OF SALE,
WHICH ARE INCIDENT TO, CONNECTED WITH, ARISE OUT OF OR RELATE, DIRECTLY OR
INDIRECTLY, TO THE USE, OWNERSHIP, MAINTENANCE, REPAIR, DISPOSAL, OR CONDITION
OF THE PROPERTY.
ALL RELEASES, INDEMNITIES, AND LIMITATION OF DAMAGES IN THIS DEED
SHALL APPLY REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY SOLE OR CONCURRENT
NEGLIGENCE OF GRANTOR OR THE OR STRICT LIABILITY OR ANY DEFECT IN PREMISES,
EQUIPMENT OR MATERIAL, AND REGARDLESS OF WHETHER PRE-EXISTING THE EXECUTION OF
THIS DEED.
TO HAVE AND TO HOLD the right, title, and interest of Grantor in the
above described premises, subject to the above, together with all and singular
the rights and appurtenances thereto in anywise belonging, with said Grantee,
its heirs, successors, and assigns, forever.
EXECUTED and DELIVERED this ______ day of ________________, 200__.
-------------------------------------
XXXXXX X. XXXXX, TRUSTEE
STATE OF TEXAS )
COUNTY OF XXXXXX )
THIS INSTRUMENT was acknowledged before me on ____________, ____,
200___ by Xxxxxx X. Xxxxx, Trustee.
---------------------------------------
NOTARY PUBLIC IN AND FOR THE STATE
OF TEXAS
My commission expires: __________________
QUIT CLAIM XXXX OF SALE
FOR AND IN CONSIDERATION of the sum of U.S.$10.00 and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, TEX-AIR HELICOPTERS, INC., a Texas corporation ("Seller"), has
agreed to GRANT, BARGAIN, SELL, CONVEY, and ASSIGN and by these presents does,
subject to the terms and conditions hereof, hereby GRANT, BARGAIN, SELL, CONVEY,
and ASSIGN unto XXXXXX X. XXXXX ("Buyer"), all of Buyer's right, title, and
interest in and with respect to the following property:
_______________________________________ (hereinafter the "Property")
THE PROPERTY IS HEREBY CONVEYED TO BUYER ON AN "AS IS, WHERE IS"
BASIS, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND
BUYER AGREES TO ACCEPT DELIVERY OF THE PROPERTY IN SUCH CONDITION. NO OTHER
OBLIGATIONS, REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE MADE
WITH RESPECT TO THE MAINTENANCE, REPAIR, CONDITION, DESIGN, OPERATION, VALUE,
MARKETABILITY, MERCHANTABILITY, ELIGIBILITY FOR ANY TRADE, USEFULNESS OR FITNESS
FOR ANY PURPOSE, OF THE PROPERTY INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR
IMPLIED WARRANTY OF MERCHANTABILITY, OR ANY EXPRESS OR IMPLIED WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE. BUYER HEREBY WAIVES ALL CLAIMS FOR DAMAGES
BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE PROPERTY, IT
BEING THE INTENTION OF BUYER AND SELLER THAT THE PROPERTY BE CONVEYED TO BUYER
IN ITS PRESENT CONDITION AND STATE OF CONDITION "AS IS, WHERE IS", WITH ALL
FAULTS, BOTH KNOWN OR UNKNOWN. FURTHER TO THE FOREGOING, BUYER HEREBY WAIVES
EACH AND EVERY CLAIM FOR RECOVERY AGAINST SELLER FOR ANY AND ALL LOSS OR DAMAGE
TO OR CAUSED BY THE PROPERTY INCIDENT TO, CONNECTED WITH, ARISING OUT OF OR
RELATING, DIRECTLY OR INDIRECTLY, TO THE USE, OWNERSHIP, MAINTENANCE, REPAIR,
DISPOSAL, SCRAPPING, CONDITION OR DESIGN THEREOF, WHETHER IN CONTRACT OR TORT,
AND BUYER SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS SELLER FROM ANY
LOSS OR LIABILITY THEREFOR, INCLUDING WITHOUT LIMITATION ANY CLAIMS FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFIT, OR LOSS OF BUSINESS
OPPORTUNITY.
FOR THE SAME CONSIDERATION, BUYER SHALL RELEASE, DEFEND, INDEMNIFY,
AND HOLD HARMLESS SELLER FROM AND AGAINST ANY CLAIMS, DEMANDS, LOSSES OR
LIABILITIES OF ANY KIND FOR ILLNESS, INJURY, OR DEATH, TO ANY PERSON, OR LOSS OR
LOSS OF USE OR DAMAGE TO PROPERTY OF BUYER OR ANY THIRD PARTY, OR FOR POLLUTION
OR CONTAMINATION CLAIMS OF ANY KIND, WHETHER AT COMMON LAW, IN EQUITY, OR
STATUTE OR REGULATION, UNDER THE LAWS OF THE UNITED STATES OF AMERICA, ANY
STATE, OR ANY POLITICAL SUBDIVISION THEREOF, OR OF ANY OTHER COUNTRY, STATE, OR
POLITICAL SUBDIVISION THEREOF, INCLUDING CLEAN UP, REMOVAL, PROPERTY DAMAGE, AND
FINES OR PENALTIES, ACCRUING BOTH AND AFTER THE EXECUTION OF THIS XXXX OF SALE,
WHICH ARE INCIDENT TO, CONNECTED WITH, ARISE OUT OF OR RELATE, DIRECTLY OR
INDIRECTLY, TO THE USE, OWNERSHIP, MAINTENANCE, REPAIR, DISPOSAL, SCRAPPING,
CONDITION OR DESIGN OF THE PROPERTY.
ALL RELEASES, INDEMNITIES, AND LIMITATION OF DAMAGES IN THIS XXXX OF
SALE SHALL APPLY REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY SOLE OR
CONCURRENT NEGLIGENCE OF SELLER OR THE OR STRICT LIABILITY OR ANY DEFECT IN
PREMISES, EQUIPMENT OR MATERIAL, AND REGARDLESS OF WHETHER PRE-EXISTING THE
EXECUTION OF THIS XXXX OF SALE.
TO HAVE AND TO HOLD, in full, Seller's right, title, and interest in
the Property for the sole use, benefit, and profit of said Buyer, its successors
and assigns.
IN WITNESS WHEREOF, this Xxxx of Sale has been executed, legalized,
and delivered as of this ____ day of ____________, 200__.
TEX-AIR HELICOPTERS, INC.
By:
---------------------------------------
Name:
Title:
STATE OF TEXAS )
)
COUNTY OF XXXXXX )
This instrument was acknowledged before me, the undersigned notary
public, on this _________ day of ________, 200__, by
__________________________________, _______________________ of Tex-Air
Helicopters, Inc., a Texas corporation, on behalf of said corporation.
---------------------------------
Notary in and for the State of Texas
My commission expires: ____________
Tex-Air Helicopters, Inc.
(Schedule 11.1)
Ranch Property
(a) 1,944.72 acres, more or less, out of and being part of Surveys Numbered
106, 107, 108, 109, 110 and 111 in Xxxxxx County, GWT&P RR Company, located
in Xxxxxx County, Texas, with said Tract being more fully described by
metes and bounds in Exhibit "A", attached hereto and made a part hereof for
all purposes, and 2.14 acres, more or less, located in Xxxxxx County,
Texas, out of Survey 106, Abstract 2122, and being referred to as Tract "G"
in the metes and bounds description on Exhibit "B", attached hereto and
made a part hereof for all purposes, and 4.13 acres, more or less, out of
Survey Xx. 000, Xxxxxxxx Xx. 0000, located in Xxxxxx County, Texas,
referred to as Tract "H" on the metes and bounds description in Exhibit
"C", attached hereto and made a part hereof for all purposes, and 3.49
acres, more or less, out of Survey No. 111, located in Xxxxxx County,
Texas, referred to as Tract "I" in the metes and bounds description in
Exhibit "D" attached hereto and made a part hereof for all purposes.
(b) Warranty Deed with Vendor's Lien dated June 22, 1992, between Voekel
Investments, Ltd, Grantor, and Xxxxxx X. Xxxxx, Trusteee, Grantee, for
certain property, 1,944.72 acres more or less, in Xxxxxx County, Texas,
referencing promissory note in the principal sum of $663,717.20.
Deed of Trust dated June 22, 1992, executed by Xxxxxx X. Xxxxx, Trustee,
referencing promissory note in the principal sum of $663,717.20 for certain
property, 1,944.72 acres more or less, in Xxxxxx County, Texas.
Real Estate Lien Note dated June 22, 1992 between maker Xxxxxx X. Xxxxx,
Trustee and payee, Xxxxxxx Investments, Ltd. In the principal sum of
$663,717.20.
Warranty Deed with Vendor's Lien dated April 20, 1992, between Voekel
Investments, Ltd, Grantor, and Xxxxxx X. Xxxxx, Trusteee, Grantee, for
certain property, 1,038.75 acres more or less, in Xxxxxx and Xxxxxxx
Counties, Texas, referencing promissory note in the principal sum of
$375,306.25
Deed of Trust dated April 20, 1992, executed by Xxxxxx X. Xxxxx, Trustee,
referencing promissory note in the principal sum of $375,306.25 for certain
property, 1,038.75 acres more or less, in Xxxxxx and Xxxxxxx Counties,
Texas.
Real Estate Lien Note dated April 20, 1992 between maker Xxxxxx X. Xxxxx,
Trustee and payee, Xxxxxxx Investments, Ltd. In the principal sum of
$375,306.25.
(c) List of land, improvements and equipment attached. There are no outstanding
taxes.
SCHEDULES
Schedule 2.4: Required Approval
Schedule 2.5: Required Approval for Warrant Shares
Schedule 3.2: Authority/Conflict
Schedule 3.5: Title to Properties; Encumbrances
Schedule 3.6: Undisclosed Liabilities
Schedule 3.7: Taxes
Schedule 3.8: Material Adverse Change
Schedule 3.9: Employee Benefits
Schedule 3.10: Legal Requirements/Governmental Authorizations
Schedule 3.11: Legal Proceedings; Orders
Schedule 3.12: Absence of Certain Changes and Events
Schedule 3.13(a)-(d): Contracts
Schedule 3.14(b)-(c): Insurance
Schedule 3.15: Environmental Matters
Schedule 3.16: Employees
Schedule 3.18(b): Intellectual Property
Schedule 3.18(c): Know-How Necessary for the Business
Schedule 3.18(d): Patents
Schedule 3.18(e): Trademarks
Schedule 3.18(f): Copyrights
Schedule 3.21: Relations with Related Persons
Schedule 4.2:
Schedule 5.7: Transfer of Assets
Schedule 11.1: Ranch Property
