Exhibit 2.1
PLAN OF REORGANIZATION AND DISTRIBUTION AGREEMENT
PLAN OF REORGANIZATION AND DISTRIBUTION AGREEMENT (this "Agreement"), dated
this 12th day of February, 2002 by and between Crown Jewel Resources Corp., a
Delaware corporation (the "Company"), and ABF Capital Corp., a Delaware
corporation ("ABF") and a wholly-owned subsidiary of the Company.
WHEREAS, the Company wholly owns three subsidiaries; and
WHEREAS, two of the Company's wholly owned subsidiaries are engaged in the
jewelry business and account for substantially all of its revenues; and
WHEREAS, the Company's third subsidiary, ABF, (i) acquires interests and
leases in oil and gas properties, (ii) acts as a drilling contractor for oil and
gas properties, and (iii) possesses certain rights to minimum annual royalty
interests from oil and gas operations; and
WHEREAS, the Board of Directors of the Company has determined that it is in
the best interests of the Company and the stockholders of the Company to
separate the jewelry business on the one hand and the oil and gas business on
the other hand, by distributing all of the shares of ABF Common Stock to the
holders of the Company's common stock on a pro rata basis (the "Distribution");
and
WHEREAS, in connection with the Distribution, the Company and ABF have
determined that it is necessary and desirable to set forth the principal
corporate transactions required to effect the Distribution and to set forth
other agreements that will govern certain other matters following the
Distribution.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained in this Agreement, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1 GENERAL. As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
ABF BOARD: The Board of Directors of ABF.
ABF BOOKS AND RECORDS: The books and records (including computerized
records) of ABF and any other books and records which relate principally to the
ABF Business, are necessary to operate the ABF Business, or are required by law
to be retained by ABF, including, without limitation, all such books and records
relating to the ABF Employees, all files relating to any Action pertaining to
ABF's liabilities, original corporate minute books, stock ledgers and
certificates and corporate seals, and all licenses, leases, agreements and
filings relating to ABF or the ABF Business (but not including the Company Books
and Records, provided that ABF shall have access to, and have the right to
obtain duplicate copies of, the Company Books and Records which pertain to the
ABF Business in accordance with the provisions of Article VI hereof).
ABF BUSINESS: Means all oil and gas operations conducted under the umbrella
of, and all assets relating to the oil and gas business owned by, the Company or
any Company Subsidiary.
ABF BY-LAWS: The by-laws of ABF, substantially in the form of Annex III to
the Information Statement, to be in effect on the Distribution Date.
ABF CHARTER: The Certificate of Incorporation of ABF, substantially in the
form of Annex II to the Information Statement, to be in effect on the
Distribution Date.
ABF COMMON STOCK: Means all outstanding shares of the common stock, par
value $.0001 per share, of ABF Capital Corp.
ABF EMPLOYEE: Any individual who, on or prior to the Distribution Date, was
employed by ABF and who, on or after the Distribution Date, or otherwise in
connection with the Distribution, is intended to be employed by ABF.
ACTION: Any action, claim, suit, arbitration, inquiry, proceeding or
investigation by or before any court, any governmental or other regulatory or
administrative agency or commission or any arbitration tribunal.
AFFILIATE: Means with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by, or under direct or indirect
common control with, such specified Person. For purposes for this definition,
"control," when used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" shall have meanings correlative to the foregoing.
AGENT: Continental Stock Transfer and Trust Company, the distribution agent
appointed by the Company to distribute shares of ABF Common Stock and cash in
lieu of fractional shares pursuant to the Distribution.
COMMISSION: The Securities and Exchange Commission.
COMPANY BOARD: The Board of Directors of the Company.
COMPANY BOOKS AND RECORDS: The books and records (including computerized
records) of the Company and the Company Subsidiaries and any other books and
records which relate principally to the Company Business, are necessary to
operate the Company Business, or are required by law to be retained by the
Company or a Company Subsidiary, including, without limitation, all such books
and records relating to the Company Employees, all files relating to any Action
pertaining to the Company Liabilities, original corporate minute books, stock
ledgers and certificates and corporate seals, and all licenses, leases,
agreements and filings relating to the Company, the Company Subsidiaries or the
Company Business (but not including the ABF Books and Records, provided that the
Company shall have access to, and have the right to obtain duplicate copies of,
the ABF Books and Records which pertain to the Company Business in accordance
with the provisions of Article VI hereof).
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COMPANY BUSINESS: Means the business activities conducted by the Company
Subsidiaries and any other businesses, other than the ABF Business, conducted by
the Company or any Company Subsidiary on the date hereof or in the future.
COMPANY COMMON STOCK: The Company common stock, par value $.00005 per
share.
COMPANY EMPLOYEE: Any individual who, on or prior to the Distribution Date,
was employed by the Company or any of the Company Subsidiaries and who, on or
after the Distribution Date, or otherwise in connection with the Distribution,
is intended to be employed by the Company or a Company Subsidiary or in a
Company Business.
COMPANY SUBSIDIARIES: All of the Subsidiaries of the Company as of the
Distribution Date, to wit, GoldWerks, Inc. and DiamondWerks, Inc., other than
ABF.
DECLARATION DATE: The date of the Company Board's declaration of the
special dividend pursuant to which the Distribution will be effected.
DISTRIBUTION DATE: The date fixed by the Company Board as the date of the
Distribution, which date shall occur promptly following the satisfaction or
waiver of each of the conditions set forth in Section II hereof and which has
been initially established as June 30, 2002.
DISTRIBUTION RECORD DATE: The date established by the Company Board as the
date for the taking of a record of the holders of the Company Common Stock
entitled to participate in the Distribution, which Distribution Record Date has
been established as February 27, 2002.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
FORM 10SB: The registration statement on Form 10SB, and any amendments
thereto, filed by the Company with the Commission to effect the registration of
ABF Common Stock pursuant to the Exchange Act.
HOLDERS: The holders of record of the Company Common Stock as of the
Distribution Record Date.
INFORMATION STATEMENT: The information statement to be distributed to the
Holders pursuant to Regulation 14C promulgated under the Exchange Act.
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PERSON: Any individual, corporation, partnership, limited liability
company, association, trust, estate or other entity or organization, including
any governmental entity or authority.
SECURITIES ACT: The Securities Act of 1933, as amended.
ARTICLE II
THE REORGANIZATION AND RELATED TRANSACTIONS
2.1. THE RESTRUCTURING. Prior to the Distribution, the Company shall take
any and all steps necessary and desirable to segregate the assets, liabilities
and other accounts properly belonging to each of the Company and ABF so as to
assure the smooth and effective transition of the ABF Business after the
Distribution. In connection with the restructuring and the assignment of assets
and the assumption of liabilities rightfully belonging to each of the Company
and ABF, the parties shall execute, or cause to be executed by the appropriate
entities, the conveyancing and assumption instruments in such forms as the
parties shall reasonably agree.
2.2. CASH MANAGEMENT. The Company shall maintain separate cash management
systems, bank accounts, cash balances and other investments with respect to the
ABF Business and the Company Business. From and after the Distribution Date, ABF
shall be entitled to all such accounts, balances and investments related to the
ABF Business and the Company shall be entitled to all such accounts, balances
and investments related to the Company Business. Following the Distribution
Date, to the extent necessary, (i) the Company shall, and shall cause its
Subsidiaries and Affiliates to, remit to ABF, no less frequently than monthly,
any amounts (net of returned checks and similar items) received by any of them
on or after the Distribution Date which constitute assets of ABF and (ii) ABF
shall cause its Affiliates to, remit to the Company, no less frequently than
monthly, any amounts (net of returned checks and similar items) received by any
of them on or after the Distribution Date which constitute assets of the
Company.
2.3. SETTLEMENT OF INTERCOMPANY ACCOUNTS. All intercompany accounts between
the Company and ABF will be settled and discharged, effective as of the
Distribution Date, as set forth in the Information Statement.
2.4. TRANSFERS NOT EFFECTED PRIOR TO THE DISTRIBUTION. To the extent that
any transfers contemplated by this Article II shall not have been consummated on
or prior to the Distribution Date, the parties hereto shall cooperate to effect
such transfers as promptly as shall be practicable following the Distribution
Date. Nothing herein shall be deemed to require the transfer of any assets or
the assumption of any liabilities which by their terms or operation of law
cannot be transferred; provided, however, that the Company and its Subsidiaries
ABF shall cooperate to seek to obtain any necessary consents or approvals for
the transfer of all assets contemplated to be transferred or assumed pursuant to
this Article II. In the event that such transfer of assets or the assumption of
any liabilities has not been consummated, effective as of the Distribution Date,
the party retaining such asset shall hold such asset in trust for the use and
benefit of the party entitled thereto (at the expense of the party entitled
thereto), and retain such liability for the account of the party by whom such
liability is to be assumed pursuant hereto, and take such other action as may be
required, in order to place the parties, insofar as is reasonably possible, in
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the same position as would have existed had such asset been transferred or such
liability assumed as contemplated hereby. As and when any such asset becomes
transferable or liability becomes assumable, such transfer shall be effected
forthwith. The parties agree that, except as set forth in this Section 2.4, as
of the Distribution Date, each party hereto shall be deemed to have acquired
complete and sole beneficial ownership over all of the assets, together with all
rights, powers, privileges, duties, obligations and responsibilities incident
thereto, and shall be deemed to have assumed in accordance with the terms of
this Agreement all of the liabilities, and all duties, obligations and
responsibilities incidental thereto which such party is entitled to acquire or
required to assume pursuant to the terms of this Agreement.
2.5. CERTAIN OTHER TRANSACTION AGREEMENTS. Prior to the Distribution Date,
the Company (and shall cause its Subsidiaries) and ABF shall enter into any
other agreements necessary or appropriate in connection with the transactions
contemplated hereby ("Transaction Agreements"). In the event of a conflict
between the terms of this Agreement and the terms of any of such other
agreements, the terms of such other Transaction Agreements shall govern.
2.6. NO REPRESENTATIONS OR WARRANTIES; CONSENTS. Each of the parties hereto
understands and agrees that, except as expressly provided to the contrary in
this Agreement, no party hereto is, in this Agreement or in any other
Transaction Agreement contemplated by this Agreement or otherwise, representing
or warranting in any way (i) as to the value or freedom from encumbrance of, or
any other matter concerning, any assets of such party or (ii) as to the legal
sufficiency to convey title to any asset transferred pursuant to this Agreement
or any other Transaction Agreement including, without limitation, any
conveyancing and assumption instrument. It is also agreed and understood that
there are no warranties whatsoever, express or implied, given by either party to
this Agreement, as to the condition, quality, merchantability or fitness of any
of the assets, businesses or other rights either transferred to or retained by
the parties, as the case may be, and all such assets, businesses or other rights
shall be "as is, where is" and "with all faults"; provided, however, that the
absence of warranties given by the parties shall not negate the allocation of
liabilities under this Agreement and shall have no effect on any third parties'
warranties which are intended to be transferred with such assets. Each party
hereto understands and agrees that, except as expressly provided to the contrary
in any other Transaction Agreement, no party hereto is, in this Agreement or in
any other agreement or document contemplated by this Agreement or otherwise,
representing or warranting in any way that the obtaining of any consents or
approvals, the execution and delivery of any amendatory agreements and the
making of any filings or applications contemplated by this Agreement or any
other agreement or document contemplated by this Agreement or otherwise will
satisfy the provisions of any or all applicable laws or judgments or other
instruments relating to such assets, it being agreed and understood that the
party to which any Assets are transferred shall bear the economic and legal risk
that any necessary consents or approvals are not obtained or that any
requirements of laws or judgments are not complied with. Notwithstanding the
foregoing, the parties shall use good faith efforts to obtain all consents and
approvals, to enter into all reasonable amendatory agreements and to make all
filings and applications which may be reasonably required for the consummation
of the transactions contemplated by this Agreement, including, without
limitation, all applicable regulatory filings. In case at any time after the
Distribution Date any further actions are necessary or desirable to carry out
the purposes of this Agreement, the proper officers and directors of each party
to this Agreement shall take all such necessary or desirable actions.
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ARTICLE III
THE DISTRIBUTION
3.1. COOPERATION PRIOR TO THE DISTRIBUTION.
3.1.1. The Company and ABF shall prepare, and ABF shall file
with the Commission, a registration statement on Form 10SB, which shall include
the portions of the Information Statement relating to the Distribution and to
ABF. The Company and ABF shall also prepare, and the Company shall mail to the
Holders, the Information Statement which shall set forth appropriate disclosure
concerning the Company, ABF, the Distribution and other matters. The Company and
ABF shall use their reasonable best efforts to cause the Form 10 to become
effective under the Exchange Act.
3.1.2. Prior to the filing of the Form 10SB, the Company shall
cause and direct the members of the Board of ABF to (i) adopt resolutions to
amend the ABF certificate of incorporation so that the certificate of
incorporation is substantially and materially equivalent to the ABF Charter
attached hereto and (ii) file the amendment with the State of Delaware.
3.1.3. The Company and ABF shall take all such action as may
be necessary or appropriate under the securities or blue sky laws of states or
other political subdivisions of the United States in connection with the
transactions contemplated by this Agreement.
3.1.4. The Company and ABF shall seek to identify a registered
broker-dealer to prepare, file and pursue, an application to permit the
inclusion of ABF Common Stock on the OTCBB.
3.1.5. The Company and ABF shall use their reasonable best
efforts to obtain any third-party consents or approvals necessary or desirable
in connection with the transactions contemplated by this Agreement.
3.1.6. The Company and ABF shall use their reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary or desirable under applicable law, to consummate the
transactions contemplated by this Agreement and the other Transaction
Agreements.
3.2 COMPANY BOARD ACTION; CONDITIONS PRECEDENT TO THE DISTRIBUTION. The
Company Board shall, in its discretion, establish the Declaration Date, the
Distribution Record Date and the Distribution Date and any appropriate
procedures in connection with the Distribution. In no event shall the
Distribution occur unless the following conditions have been satisfied:
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3.2.1. The Form 10SB shall have been declared effective by the
Commission under the Exchange Act and no stop order shall be in effect with
respect thereto;
3.2.2. The ABF Board, comprised as contemplated by Section 5.1
hereof, shall have been elected by the Company as sole stockholder of ABF, and
the ABF Certificate of Incorporation and the ABF By-Laws, as each will be in
effect after the Distribution, shall have been adopted and shall be in effect;
3.2.3. There shall not be in effect any statute, rule,
regulation or order of any court, or governmental or regulatory authority which
prohibits or makes illegal the transactions contemplated by this Agreement;
provided, however, that (i) any such condition may be waived by the Company
Board in its sole discretion, and (ii) the satisfaction of such conditions shall
not create any obligation on the part of the Company or ABF to effect the
Distribution, in any way limit the Company's power of amendment and termination
set forth in Sections 7.7 and 7.9 hereof or alter the consequences of any such
termination from those specified in Section 7.9 hereof.
3.3 THE DISTRIBUTION. On the Distribution Date, subject to the conditions
and rights of termination set forth in this Agreement, the Company shall endorse
in blank and deliver to the Agent share certificates representing all of the
then outstanding shares of ABF Common Stock owned by the Company. The Company
shall instruct the Agent to distribute to the Holders, on or as soon as
practicable following the Distribution Date, certificates representing one (1)
share of ABF Common Stock for every ten shares of Company Common Stock held by
such Holders, to be rounded up in the event of fractional shares of ABF Common
Stock. ABF agrees to provide all share certificates that the Agent shall require
in order to effect the Distribution.
3.4 ROUNDING OF FRACTIONAL SHARES. No certificates or scrip representing
fractional interests in shares of ABF Common Stock shall be issued as part of
the Distribution. In lieu thereof, each Holder who would otherwise be entitled
to receive a fractional share of ABF Common Stock will receive the nearest whole
number of shares rounded up for such fractional share.
ARTICLE IV
INDEMNIFICATION
4.1 INDEMNIFICATION BY THE COMPANY. The Company shall indemnify, defend and
hold harmless ABF and each of its directors, officers, employees, agents and
Affiliates and each of the heirs, executors, successors and assigns of any of
the foregoing (the "ABF Indemnitees") from and against the Company Liabilities
and any and all losses, Liabilities and damages, including, without limitation,
the costs and expenses of any and all Actions, threatened Actions, demands,
assessments, judgments, settlements and compromises relating thereto and
attorneys' fees and any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any such Actions or threatened
Actions (collectively, "ABF Indemnifiable Losses" and, individually, an "ABF
Indemnifiable Loss") of the ABF Indemnitees arising out of or due to the failure
or alleged failure of the Company or any of its Subsidiaries or Affiliates to
(i) pay, perform or otherwise discharge in due course any of the Company
Liabilities or (ii) comply with the provisions of Section 4.3 hereof.
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4.2 INDEMNIFICATION BY ABF. ABF shall indemnify, defend and hold harmless
the Company and each of the Company Subsidiaries, and each of their respective
directors, officers, employees, agents and Affiliates and each of the heirs,
executors, successors and assigns of any of the foregoing (the "Company
Indemnitees") from and against the ABF Liabilities, and any and all losses,
Liabilities, damages, including, without limitation, the costs and expenses of
any and all Actions, threatened Actions, demands, assessments, judgments,
settlements and compromises relating thereto and attorneys' fees and any and all
expenses whatsoever reasonably incurred in investigating, preparing or defending
against any such Actions or threatened Actions (collectively, "Company
Indemnifiable Losses" and, individually, a "Company Indemnifiable Loss") of the
Company Indemnitees arising out of or due to the failure or alleged failure of
ABF or Affiliates to (i) pay, perform or otherwise discharge in due course any
of the ABF Liabilities or (ii) comply with the provisions of Section 4.3 hereof.
The ABF Indemnifiable Losses and the Company Indemnifiable Losses are
collectively referred to as the "Indemnifiable Losses."
4.3 PROCEDURE FOR INDEMNIFICATION.
4.3.1 If an Indemnitee shall receive notice or otherwise learn
of the assertion by a Person who is not a party to this Agreement of any claim
or of the commencement by any such Person of any Action (a "Third-Party Claim")
with respect to which an Indemnifying Party may be obligated to provide
indemnification pursuant to this Agreement, such Indemnitee shall give such
Indemnifying Party written notice thereof promptly after becoming aware of such
Third-Party Claim; provided, that the failure of any Indemnitee to give notice
as required by this Section 4.3 shall not relieve the Indemnifying Party of its
obligations under this Article IV, except to the extent that such Indemnifying
Party is prejudiced by such failure to give notice. Such notice shall describe
the Third-Party Claim in reasonable detail, and shall indicate the amount
(estimated if necessary) of the Indemnifiable Loss that has been or may be
sustained by such Indemnitee.
4.3.2 An Indemnifying Party may elect to defend or to seek to
settle or compromise, at such Indemnifying Party's own expense and by such
Indemnifying Party's own counsel, any Third-Party Claim, provided that the
Indemnifying Party must confirm in writing that it agrees that the Indemnitee is
entitled to indemnification hereunder in respect of such Third-Party Claim.
Within 30 days after the receipt of notice from an Indemnitee in accordance with
Section 4.3.1 hereof (or sooner, if the nature of such Third-Party Claim so
requires), the Indemnifying Party shall notify the Indemnitee of its election
whether to assume responsibility for such Third-Party Claim (provided that if
the Indemnifying Party does not so notify the Indemnitee of its election within
30 days after receipt of such notice from the Indemnitee, the Indemnifying Party
shall be deemed to have elected not to assume responsibility for such
Third-Party Claim), and such Indemnitee shall cooperate in the defense,
settlement or compromise of such Third-Party Claim. After notice from an
Indemnifying Party to an Indemnitee of its election to assume responsibility for
a Third-Party Claim, such Indemnifying Party shall not be liable to such
Indemnitee under this Article IV for any legal or other expenses (except
expenses approved in advance by the Indemnifying Party) subsequently incurred by
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such Indemnitee in connection with the defense thereof; provided, however, that
if the defendants or parties against which relief is sought in any such claim
include both the Indemnifying Party and one or more Indemnitees and in such
Indemnitees' reasonable judgment a conflict of interest between such Indemnitees
and such Indemnifying Party exists in respect of such claim, such Indemnitees
shall have the right to employ separate counsel and in that event the reasonable
fees and expenses of such separate counsel (but not more than one separate
counsel reasonably satisfactory to the Indemnifying Party) shall be paid by such
Indemnifying Party. If an Indemnifying Party elects not to assume responsibility
for a Third-Party Claim (which election may be made only in the event of a good
faith dispute that a claim was inappropriately tendered under Section 4.1 or 4.2
hereof, as the case may be) such Indemnitee may defend or (subject to the
following sentence) seek to compromise or settle such Third-Party Claim.
Notwithstanding the foregoing, an Indemnitee may not settle or compromise any
claim without prior written notice to the Indemnifying Party, which shall have
the option within ten days following the receipt of such notice (i) to
disapprove the settlement and assume all past and future responsibility for the
claim, including reimbursing the Indemnitee for prior expenditures in connection
with the claim, or (ii) to disapprove the settlement and continue to refrain
from participation in the defense of the claim, in which event the Indemnifying
Party shall have no further right to contest the amount or reasonableness of the
settlement if the Indemnitee elects to proceed therewith, or (iii) to approve
the amount of the settlement, reserving the Indemnifying Party's right to
contest the Indemnitee's right to indemnity, or (iv) to approve and agree to pay
the settlement. In the event the Indemnifying Party makes no response to such
written notice from the Indemnitee, the Indemnifying Party shall be deemed to
have elected option (ii).
4.3.3. If an Indemnifying Party chooses to defend or to seek
to compromise any Third-Party Claim, the Indemnitee shall make available to such
Indemnifying Party any personnel and any books, records or other documents
within its control or which it otherwise has the ability to make available that
are necessary or appropriate for such defense or compromise.
4.3.4. Notwithstanding anything else in this Section 4.3 to
the contrary, an Indemnifying Party shall not settle or compromise any
Third-Party Claim unless such settlement or compromise contemplates as an
unconditional term thereof the giving by such claimant or plaintiff to the
Indemnitee of a written release from all liability in respect of such
Third-Party Claim (and provided further that such settlement may not provide for
any non-monetary relief by Indemnitee without the written consent of Indemnitee)
and unless such settlement or compromise does not involve any new or additional
contractual or other burdens on the Indemnitee. In the event the Indemnitee
shall notify the Indemnifying Party in writing that such Indemnitee declines to
accept any such settlement or compromise, such Indemnitee may continue to
contest such Third-Party Claim, free of any participation by such Indemnifying
Party, at such Indemnitee's sole expense. In such event, the obligation of such
Indemnifying Party to such Indemnitee with respect to such Third-Party Claim
shall be equal to (i) the costs and expenses of such Indemnitee prior to the
date such Indemnifying Party notifies such Indemnitee of the offer to settle or
compromise (to the extent such costs and expenses are otherwise indemnifiable
hereunder) plus (ii) the lesser of (a) the amount of any offer of settlement or
compromise which such Indemnitee declined to accept and (b) the actual
out-of-pocket amount such Indemnitee is obligated to pay subsequent to such date
as a result of such Indemnitee's continuing to pursue such Third-Party Claim.
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4.3.5 Any claim on account of an Indemnifiable Loss which does
not result from a Third-Party Claim shall be asserted by written notice given by
the Indemnitee to the applicable Indemnifying Party. Such Indemnifying Party
shall have a period of 15 days after the receipt of such notice within which to
respond thereto. If such Indemnifying Party does not respond within such 15-day
period, such Indemnifying Party shall be deemed to have refused to accept
responsibility to make payment. If such Indemnifying Party does not respond
within such 15-day period or rejects such claim in whole or in part, such
Indemnitee shall be free to pursue such remedies as may be available to such
party under applicable law or under this Agreement.
4.4. REMEDIES CUMULATIVE. The remedies provided in this Article IV shall be
cumulative and shall not preclude assertion by any Indemnitee of any other
rights or the seeking of any and all other remedies against any Indemnifying
Party.
4.5. SURVIVAL OF INDEMNITIES. The obligations of each of the Company and
ABF under this Article IV shall survive the sale or other transfer by it of any
Assets or businesses or the assignment by it of any Liabilities, with respect to
any Indemnifiable Loss of the other related to such Assets, businesses or
Liabilities.
ARTICLE V
CERTAIN ADDITIONAL MATTERS
5.1. THE ABF BOARD. ABF and the Company shall take all actions which may be
required to elect or otherwise appoint, as of the Distribution Date, the
following three persons as directors of ABF: Xxxxxx Xxxxxxxx, Xxxxxx Xxxxxxxxxx
and Xxxxxx Xxxxxxxxxxxx.
5.2. RESIGNATIONS. ABF shall cause all of its directors, officers and ABF
Employees to resign, other than those persons named in Section 5.1., above,
effective as of the Distribution Date, from all boards of directors or similar
governing bodies of the Company on which they serve, and from all positions as
officers and/or employees of the Company on which they serve. The Company shall
cause all of its directors, officers and Company Employees to resign from all
boards of directors or similar governing bodies of ABF on which they serve and
from all positions as officers and/or employees of ABF except to the extent
specifically requested by ABF.
ARTICLE VI
ACCESS TO INFORMATION AND SERVICES
6.1 PROVISION OF CORPORATE RECORDS.
6.1.1. The Company shall arrange as soon as practicable
following the Distribution Date for the delivery to ABF, at ABF's cost, of the
ABF Books and Records in its possession, except to the extent such items are
already in the possession of ABF. Such records shall be the property of ABF, but
shall be available to the Company for review and duplication until the Company
shall notify ABF in writing that such records are no longer of use to the
Company. The Company may also retain copies of any of such records relating to
Actions commenced against the Company and its Affiliates.
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6.1.2. ABF shall arrange as soon as practicable following the
Distribution Date for the delivery to the Company, at the Company's cost, of the
Company Books and Records in its possession (if any) to the extent such items
are not already in the possession of the Company. Such records shall be the
property of the Company, but shall be available to ABF for review and
duplication until ABF shall notify the Company in writing that such records are
no longer of use to ABF. ABF may also retain copies of any of such records
relating to Actions commenced against ABF and its Affiliates.
6.1.3. The originals of any documents containing information
with respect to the Company and its Subsidiaries on a consolidated basis
(including accounting, tax and financial records) shall be retained by the
Company. Copies of any such documents shall be delivered to ABF in accordance
with Section 6.1.1 hereof. Costs of duplicating such documents shall be
allocated 50% to ABF and 50% to the Company.
6.2. ACCESS TO INFORMATION. From and after the Distribution Date, the
Company shall afford to ABF and its authorized accountants, counsel and other
designated representatives reasonable access and duplicating rights during
normal business hours to all records, books, contracts, instruments, computer
data and other data and information (collectively, "Information") within the
Company's possession and shall use reasonable efforts to give to ABF and its
authorized accountants, counsel and other designated representatives access to
persons or firms possessing Information, insofar as such access is reasonably
required by ABF and subject to appropriate restrictions for confidential
Information. Similarly, ABF shall afford to the Company and its authorized
accountants, counsel and other designated representatives reasonable access and
duplicating rights during normal business hours to Information within ABF's
possession and shall use reasonable efforts to give to the Company and its
authorized accountants, counsel and other designated representatives access to
persons or firms possessing Information, insofar as such access is reasonably
required by the Company and subject to appropriate restrictions for confidential
Information. Information may be requested under this Article VI for the
legitimate business purpose of either party including, without limitation,
audit, accounting, claims, litigation and tax purposes, as well as for purposes
of fulfilling disclosure and reporting obligations and for performing this
Agreement and the transactions contemplated hereby.
6.3. REIMBURSEMENT. Any party providing Information to the other party
under this Article VI shall be entitled to receive from the recipient, upon the
presentation of invoices therefor, payments for such amounts (at cost), relating
to supplies, disbursements and other direct out-of-pocket expenses.
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6.4. RETENTION OF RECORDS. Except as otherwise required by law or agreed to
in writing, each of the Company and ABF may destroy or otherwise dispose of any
of the Information at any time after the tenth anniversary of this Agreement,
provided that, prior to such destruction or disposal, (a) it shall provide not
less than 90 days' prior written notice to the other, specifying in reasonable
detail the Information proposed to be destroyed or disposed of and (b) if a
recipient of such notice shall request in writing prior to the scheduled date
for such destruction or disposal that any of the Information proposed to be
destroyed or disposed of be delivered to such requesting party, the party
proposing the destruction or disposal shall promptly arrange for the delivery of
such of the Information as was requested at the expense of the party requesting
such Information.
6.5. CONFIDENTIALITY. Each of the Company and the Company Subsidiaries on
the one hand, and ABF on the other hand, shall hold, and shall cause its
directors, employees, agents, Affiliates, consultants and advisors to hold, in
strict confidence, all Information concerning the other in its possession or
furnished by the other or the other's representatives pursuant to this Agreement
(except to the extent that such Information has been (a) in the public domain
through no fault of such party or (b) lawfully acquired from other sources by
such party) and each party shall not release or disclose such Information to any
other person, except its auditors, attorneys, financial advisors, bankers and
other consultants and advisors, unless compelled to disclose by judicial or
administrative process or, as advised by its counsel, by other requirements of
law or unless such Information is reasonably required to be disclosed in
connection with (x) any litigation with any third parties or litigation between
the Company and ABF, (y) any contractual agreement to which the Company or ABF
are currently parties or (z) in exercise of either party's rights hereunder.
ARTICLE VII
MISCELLANEOUS
7.1. EXPENSES. Except as otherwise set forth in this Agreement, all costs
and expenses incurred through the Distribution Date in connection with the
preparation, execution, delivery and implementation of this Agreement, the
Distribution and with the consummation of the transactions contemplated by this
Agreement shall be charged to the Company. Except as otherwise set forth in this
Agreement, all costs and expenses incurred following the Distribution Date in
connection with the implementation of the transactions contemplated in this
Agreement shall be charged to the party for whose benefit the expenses are
incurred, with any expenses which cannot be allocated on such basis to be split
equally between the parties.
7.2. COMPLETE AGREEMENT; CONSTRUCTION. This Agreement, including the
Schedules and Exhibits hereto and the other agreements and documents referred to
herein, shall constitute the entire agreement between the parties with respect
to the subject matter hereof and shall supersede all previous negotiations,
commitments and writings with respect to such subject matter.
7.3. SURVIVAL OF AGREEMENTS. Except as otherwise contemplated by this
Agreement, all covenants and agreements of the parties contained in the
Agreement shall survive the Distribution Date.
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7.4. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
principles of conflicts of law thereof.
7.5. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if signed by an authorized
officer of the party giving such notice or other communication upon receipt of
hand delivery, certified or registered mail (return receipt requested) or
telecopy transmission with confirmation of receipt:
To the Company: 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Telecopier: (000) 000-0000
To ABF: 0 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Such names and addresses may be changed from time to time by such
notice.
7.6. AMENDMENTS. This Agreement may not be modified or amended except by an
agreement in writing signed by the parties hereto.
7.7. SUCCESSORS AND ASSIGNS. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
7.8. TERMINATION. This Agreement may be terminated and the Distribution
abandoned, modified or deferred at any time prior to the Distribution Date by,
and in the sole discretion of, the Company Board without the approval of ABF or
the Company's stockholders. In the event of such termination, no party shall
have any liability of any kind to the other party pursuant to this Agreement.
7.9. SUBSIDIARIES. Each of the parties hereto shall cause to be performed,
and hereby guarantees the performance of, all actions, agreements and
obligations set forth herein to be performed by any Subsidiary of such party on
and after the Distribution Date.
7.10. NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the parties hereto and their respective Subsidiaries and Affiliates
and should not be deemed to confer upon third parties any remedy, liability,
claim, right of reimbursement or other right in excess of those existing without
reference to this Agreement.
7.11. TITLES AND HEADINGS. Titles and headings to sections herein are
inserted for the convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
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7.12. EXHIBITS AND SCHEDULES. The Exhibits and Schedules shall be construed
with and as an integral part of this Agreement to the same extent as if the same
had been set forth verbatim herein.
7.13. LEGAL ENFORCEABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Without prejudice to any
rights or remedies otherwise available to any party hereto, each party hereto
acknowledges that damages would be an inadequate remedy for any breach of the
provisions of this Agreement and agrees that the obligations of the parties
hereunder shall be specifically enforceable.
7.14. ARBITRATION OF DISPUTES. Any dispute, claim or controversy relating
to or arising out of this Agreement shall be exclusively resolved by arbitration
in accordance with this Section 7.14. Any party may initiate arbitration by
giving written notice to the other parties hereto of an intention to arbitrate
and by filing with the regional office of the American Arbitration Association
located in New York, New York, three copies of such notice and three copies of
this Agreement together with the appropriate filing fee. Such notice shall
contain a statement setting forth the nature of the dispute and the remedy
sought. The arbitration shall be conducted before a single arbitrator selected
by the parties from the Panel of Arbitrators submitted to the parties by the
American Arbitration Association. The arbitration shall be conducted in New
York, New York in accordance with the rules of the American Arbitration
Association in effect at the time the notice to arbitrate is served. The
arbitrator's decision will be final and binding on the parties and may be
enforced in any court of competent jurisdiction. The arbitrator may grant any
legal and/or equitable relief to which a party may be entitled under the law or
any legal theory under which the party seeks relief. The award shall not serve
as precedent or authority in any subsequent proceeding, provided that if the
losing party should fail to comply with the award, the prevailing party may
apply to any court having jurisdiction for an order confirming the award in
accordance with applicable law. Unless otherwise required by law or court order,
the substance of any arbitration proceedings pursuant hereto, including the
content and result of the award, shall be kept confidential by all parties and
by the arbitrator. The fact that such a proceeding exists or that an award has
been rendered, need not be kept confidential. Each party shall bear its own
costs of the proceeding, including costs of witnesses. The compensation of the
arbitrator and any other costs of the proceeding shall be shared equally by the
parties thereto.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
CROWN JEWEL RESOURCES, INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxx, President
ABF CAPITAL CORP.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxx, President
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