EXHIBIT 10.6
AGREEMENT
THIS AGREEMENT is made this 23rd day of March, 2001, by and between
UNICORP, INC., a Nevada corporation having its principal office and place of
business in Xxxxxx County, Texas ("Unicorp"), EQUITABLE ASSETS, INCORPORATED, a
Belize corporation having its principal office and place of business in Belize
City, Belize ("Equitable"), TEXAS NEVADA OIL & GAS CO., a Texas corporation
having its principal office and place of business in Xxxxxx County, Texas
("TNOG"), and OPPORTUNITY ACQUISITION COMPANY, a Texas corporation having its
principal office and place of business in Xxxxxx County, Texas ("Opportunity").
WHEREAS, Unicorp desires to spin-off TNOG (the "Spin-Off") to its
shareholders (the "Unicorp Shareholders");
WHEREAS, following the Spin-Off, and subject to all of the terms of this
Agreement, TNOG will merge with Opportunity; and
WHEREAS, Equitable, as the controlling shareholder of Unicorp, desires to
ensure that Unicorp and TNOG perform all of their obligations hereunder;
NOW, THEREFORE, in consideration of the foregoing and the following mutual
covenants and agreements, the parties hereto do hereby agree as follows:
1. Spin-Off and Registration. Unicorp will Spin-Off TNOG to the
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Unicorp Shareholders. The Spin-Off will be accomplished by Unicorp's
distribution to the Unicorp Shareholders all of the issued and outstanding
shares of the common stock, no par value per share, of TNOG (the "TNOG Stock")
owned by Unicorp. Further, the Spin-Off shall be exempt from registration under
the Securities Act of 1933, as amended (the "Securities Act"). In conjunction
with the Spin-Off, TNOG and Unicorp will promptly cause the TNOG Stock to be
registered pursuant to a Registration Statement on Form 10-SB (the "Exchange Act
Registration") under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). After the Spin-Off and the effectiveness of the Exchange Act
Registration, TNOG will be a fully reporting company under the Exchange Act and
will have no liabilities. In addition, TNOG will have at least (a) 400 "round
lot" shareholders, and (b) one market maker for the TNOG Stock.
2. Merger. Following the Spin-Off and the effectiveness of the
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Exchange Act Registration, Opportunity will enter into an agreement of merger
(the "Merger Agreement") with TNOG, whereby TNOG will merge with Opportunity
(the "Merger") pursuant to Section 368(a)(1)(A) of the Internal Revenue Code of
1986, as amended. Opportunity will be the surviving entity. The Merger
Agreement will provide that the shares of the common stock of Opportunity (the
"Opportunity Stock") following the Merger will be held five percent by the
Unicorp Shareholders and 95 percent by the shareholders of Opportunity before
the Merger.
3. Information Statement. Prior to the Merger, TNOG and Unicorp will
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promptly prepare and send to the Unicorp Shareholders an Information Statement
as required by the Exchange Act (the "Information Statement") in connection with
obtaining approval for the Merger by the Unicorp Shareholders.
4. Registration of Opportunity's Stock. In conjunction with the
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Information Statement, and as part of the Merger, an S-4 Registration Statement
(the "Securities Act Registration") in accordance with the Securities Act will
be prepared and filed by Opportunity to register the Opportunity Stock to be
received by the Unicorp Shareholders.
5. Representations of Unicorp and Equitable. Unicorp and Equitable
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represent that:
(a) Equitable owns 95.5 percent of the issued and outstanding
shares of the voting capital stock of Unicorp, and as such, it has the power and
authority to cause Unicorp and TNOG to perform all of their obligations
hereunder.
(b) Unicorp owns all of the issued and outstanding shares of the
capital stock of TNOG, and is fully authorized to perform all of its obligations
hereunder.
6. Covenants of Equitable. Equitable hereby covenants that as the
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controlling shareholder of Unicorp and by extension, TNOG, it will cause both
Unicorp and TNOG to perform all of their obligations hereunder, including, but
not limited to, the obligation of Unicorp and TNOG to pay any amounts which may
become due to Opportunity in the event that Unicorp or TNOG fail to satisfy any
of the conditions precedent to Opportunity's obligations hereunder as specified
in Paragraph 7 hereof.
7. Conditions Precedent to Opportunity's Obligations. Notwithstanding
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anything herein contained to the contrary, Opportunity shall have no obligation
hereunder with respect to the Merger or any other matter referred to herein, if
any representation by Unicorp or Equitable is untrue, or Unicorp and TNOG shall
fail to consummate the Spin-Off and the Exchange Act Registration within 120
days from the date of this Agreement. Following the Spin-Off and the Exchange
Act Registration, TNOG and Unicorp will enter into the Merger Agreement with
Opportunity. The Merger Agreement will contain the usual and customary
representations and warranties, including, but not limited to a representation
and warranty with respect to the fact that TNOG has no liabilities, and such
other matters as to which the parties can reasonably agree. In addition, the
Merger Agreement will provide for an opinion of counsel by the attorney
representing Unicorp, Equitable, and TNOG that the Spin-Off, the Exchange Act
Registration, and the Merger have been authorized and concluded in conformity
with all applicable laws, including, but not limited to the Securities Act and
the Exchange Act, and any applicable state corporate and securities laws. If
Unicorp, Equitable, or TNOG fail to comply with the terms of this Agreement,
then Opportunity, at its sole option, may terminate this Agreement, whereupon no
party shall have any further obligation hereunder, other than the obligation of
Unicorp, Equitable, and TNOG to repay any of the costs paid by Opportunity as
specified in Paragraph 8 hereof.
8. Payment of Unicorp's, Equitable, and TNOG's Expenses. Opportunity
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will pay the costs of Unicorp, Equitable, and TNOG in connection with the
Spin-Off, the Exchange Act Registration, the Merger, and the Information
Statement to the Unicorp Shareholders with respect to the Merger, in an amount
not to exceed $75,000. It is understood by Opportunity that Unicorp, Equitable,
and TNOG will have to pay certain "clean-up costs" pertaining to Unicorp before
the transactions described herein can be completed. However, before payment of
any expenses will be made by Opportunity, any invoices must be submitted by
Unicorp to Opportunity for approval. Thereafter, Opportunity will pay any
approved invoice within 10 days after its receipt and approval by Opportunity.
Unicorp, Equitable, and TNOG will pay all of their costs in excess of $75,000.
In the event that Unicorp, Equitable, or TNOG fail to comply with the terms of
this Agreement, any costs paid by Opportunity on behalf of Unicorp, Equitable,
or TNOG hereunder will be repaid to Opportunity on demand by Opportunity. In
connection with the agreement by Opportunity to pay certain expenses of Unicorp,
Equitable, and TNOG hereunder, Unicorp, Equitable, and TNOG will execute a
promissory note in the form attached hereto as Exhibit A and incorporated herein
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by reference for all purposes (the "Note"). If Unicorp, Equitable, and TNOG
fully perform all of their obligations hereunder, the Note will be cancelled.
9. Payment of Opportunity's Expenses. Opportunity will pay all of its
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own costs associated with the Merger and the Securities Act Registration,
provided Unicorp, Equitable, and TNOG have performed all of their obligations
hereunder. If Unicorp, Equitable, or TNOG fail to fully perform their
obligations hereunder, then the costs paid by Opportunity associated with the
Merger and the Securities Act Registration, as well as this Agreement, will be
added to the principal of the Note and paid by Unicorp, Equitable, and TNOG.
10. Other Agreements and Documents. In carrying out the intent of this
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Agreement, there are several agreements and documents which will need to be
prepared, including, but not limited to the Exchange Act Registration, the
Information Statement, the Securities Act Registration, and the Merger
Agreement. The parties agree to act in good faith and to attempt to reasonably
agree on the terms of such agreements and documents.
11. Attorney's Fees. In the event that it should become necessary for
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any party entitled hereunder to bring suit against any other party to this
Agreement for enforcement of the covenants herein contained, the parties hereby
covenant and agree that the party who is found to be in violation of said
covenants shall also be liable for all reasonable attorney's fees and costs of
court incurred by the other parties hereto.
12. Mediation and Arbitration. All disputes arising or related to this
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Agreement must exclusively be resolved first by mediation with a mediator
selected by the parties, with such mediation to be held in Houston, Texas. If
such mediation fails, then any such dispute shall be resolved by binding
arbitration under the Commercial Arbitration Rules of the American Arbitration
Association in effect at the time the arbitration proceeding commences, except
that (a) Texas law and the Federal Arbitration Act must govern construction and
effect, (b) the locale of any arbitration must be in Houston, Texas, and (c) the
arbitrator must with the award provide written findings of fact and conclusions
of law. Any party may seek from a court of competent jurisdiction any
provisional remedy that may be necessary to protect its rights or assets pending
the selection of the arbitrator or the arbitrator's determination of the merits
of the controversy. The exercise of such arbitration rights by any party will
not preclude the exercise of any self-help remedies (including without
limitation, setoff rights) or the exercise of any non-judicial foreclosure
rights. An arbitration award may be entered in any court having jurisdiction.
13. Benefit. All the terms and provisions of this Agreement shall be
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binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
14. Notices. All notices, requests, demands, and other communications
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hereunder shall be in writing and delivered personally or sent by registered or
certified United States mail, return receipt requested with postage prepaid, if
to Unicorp, Equitable, or TNOG, addressed to Xx. Xxxxx Xxxx at 0000 Xxxxxxx,
Xxxx, Xxxxx 00000, with a copy to M. Xxxxxxx Xxxxxxx, Esquire, at X.X. Xxx
000000, Xxxxxxx, Xxxxx 000000, telecopier (000) 000-0000, and e-mail
xxxxxxxx@xxxxxxx.xxx; and if to Opportunity, addressed to Xx. Xxxx X.
Xxxxxxxxxxx at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, telecopier
(000) 000-0000, and e-mail xxxxxxxx@xxxxxx.xxx, with a copy to Xxxxxx X.
Xxxxxxxx, Esquire, Xxxxxxx Xxxxxx L.L.P. at 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, telecopier (000) 000-0000, and e-mail xxxxxxxxx@xx.xxx.
Any party hereto may change its address upon 10 days' written notice to any
other party hereto.
15. Construction. Words of any gender used in this Agreement shall be
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held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise. In addition, the pronouns used in this Agreement shall be understood
and construed to apply whether the party referred to is an individual,
partnership, joint venture, corporation or an individual or individuals doing
business under a firm or trade name, and the masculine, feminine and neuter
pronouns shall each include the other and may be used interchangeably with the
same meaning.
16. Waiver. No course of dealing on the part of any party hereto or
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its agents, or any failure or delay by any such party with respect to exercising
any right, power or privilege of such party under this Agreement or any
instrument referred to herein shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall not preclude any
later exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
17. Cumulative Rights. The rights and remedies of any party under this
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Agreement and the instruments executed or to be executed in connection herewith,
or any of them, shall be cumulative and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other right or
remedy.
18. Invalidity. In the event any one or more of the provisions
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contained in this Agreement or in any instrument referred to herein or executed
in connection herewith shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect the other provisions of this Agreement or any such other
instrument.
19. Time of the Essence. Time is of the essence of this Agreement.
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20. Headings. The headings used in this Agreement are for convenience
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and reference only and in no way define, limit, simplify or describe the scope
or intent of this Agreement, and do not effect or constitute a part of this
Agreement.
21. No Assignment. This Agreement may not be assigned by any party
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hereto without the prior written consent of the other parties hereto.
22. Excusable Delay. None of the parties hereto shall be obligated to
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perform and none shall be deemed to be in default hereunder, if the performance
of a non-monetary obligation is prevented by the occurrence of any of the
following, other than as the result of the financial inability of the party
obligated to perform: acts of God, strikes, lock-outs, other industrial
disturbances, acts of a public enemy, wars or war-like action (whether actual,
impending or expected and whether de jure or de facto), arrest or other
restraint of governmental (civil or military) blockades, insurrections, riots,
epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms,
floods, washouts, sink holes, civil disturbances, explosions, breakage or
accident to equipment or machinery, confiscation or seizure by any government of
public authority, nuclear reaction or radiation, radioactive contamination or
other causes, whether of the kind herein enumerated, or otherwise, that are not
reasonably within the control of the party claiming the right to delay
performance on account of such occurrence.
23. No Third-Party Beneficiary. Any agreement to pay an amount and any
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assumption of liability herein contained, express or implied, shall be only for
the benefit of the undersigned parties and their respective successors and
permitted assigns (as herein expressly permitted), and such agreements and
assumptions shall not inure to the benefit of the obligees or any other party,
whomsoever, it being the intention of the parties hereto that no one shall be or
be deemed to be a third-party beneficiary of this Agreement.
24. Multiple Counterparts. This Agreement may be executed in one or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
25. Governing law; Jurisdiction. This Agreement shall be governed by
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and construed in accordance with the laws of the State of Texas, without regard
to any conflicts of laws provisions thereof. Each party hereby irrevocably
submits to the personal jurisdiction of the United States District Court for
Xxxxxx County, Texas, as well as of the District Courts of the State of Texas in
Xxxxxx County, Texas over any suit, action or proceeding arising out of or
relating to this Agreement. Each party hereby irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such mediation, arbitration, suit, action
or proceeding brought in any such county and any claim that any such mediation,
arbitration, suit, action or proceeding brought in such county has been brought
in an inconvenient forum.
26. Perfection of Title. The parties hereto shall do all other acts
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and things that may be reasonably necessary or proper, fully or more fully, to
evidence, complete or perfect this Agreement, and to carry out the intent of
this Agreement.
27. Entire Agreement. This instrument contains the entire
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understanding of the parties with respect to the subject matter hereof, and may
not be changed orally, but only by an instrument in writing signed by the party
against whom enforcement of any waiver, change, modification, extension, or
discharge is sought.
28. IN WITNESS WHEREOF, this Agreement has been executed in multiple
counterparts on the date first written above.
UNICORP, INC.
By /s/ Xxxxx Xxxx, President
Xxxxx Xxxx, President
EQUITABLE ASSETS, INCORPORATED
By /s/ Xxxxx Xxxx, President
Xxxxx Xxxx, President
TEXAS NEVADA OIL & GAS CO.
By /s/ Xxxxx Xxxx, President
Xxxxx Xxxx, President
OPPORTUNITY ACQUISITION COMPANY
By /s/ X. X. Xxxxxxxxxxx
Xxxx X. Xxxxxxxxxxx, President
Attachment:
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Exhibit A - The Note
