EXHIBIT 2.3
MANAGEMENT AGREEMENT
This Management Agreement (the "Agreement") has been entered into as of
this ____ day of February, 1999, by and between Indian Oil Company ("Indian"),
an Oklahoma corporation, and Coral Reserves Group, Ltd. ("Coral"), an Oklahoma
corporation. All defined terms used herein shall have the same meaning given to
those terms in the Merger Agreement (as hereinafter defined) unless the context
indicates otherwise.
R E C I T A L S:
Indian and Coral are parties to an Agreement and Plan of Merger (the
"Merger Agreement") which provides for, among other things, the Merger of Indian
into Coral Public or, alternatively, the sale and liquidation of Indian's assets
and properties (the "Interests"). The Merger Agreement contemplates that, during
the period described herein, Coral will manage Indian's operations and affairs
and make payments from Indian's revenues and working capital for certain
obligations of Indian. Alternatively, the Merger Agreement provides that, upon
termination of the Merger or Reorganization transactions contemplated by the
Merger Agreement, Coral will manage the timely sale and liquidation of Indian's
Interests. The parties intend for this Agreement to memorialize the terms
pursuant to which a representative of Coral will manage Indian's operations and
affairs in accordance with this Agreement and the Merger Agreement.
NOW, THEREFORE, it is agreed as follows:
1. Commencement Date. The date upon which BancOne's consent to the
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terms of the Merger Agreement is obtained shall be the effective date for the
commencement of the management services described herein (the "Commencement
Date"). Beginning as of the Commencement Date, the duties and responsibilities
of the Manager (as defined in Section 2 below) will commence.
2. Engagement of the Manager. As of the Commencement Date, Coral agrees
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to designate an individual experienced and knowledgeable in the oil and gas
production business (the "Manager"), and Indian agrees to engage such Manager,
to manage the operations and affairs of Indian, upon the terms and conditions
set forth in this Agreement; provided, however, that the person designated by
Coral shall be approved by Indian's board of directors, which approval shall not
be unreasonably withheld. Subject to its approval of Coral's designee, Indian's
board of director shall elect the Manager as an executive officer of Indian.
3. Manager's Duties and Responsibilities.
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3.1 General. The Manager shall be responsible for managing the
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business and affairs of Indian in a good, diligent and workmanlike manner, but
shall in no event have liability to Indian or to other parties for losses
sustained or liabilities incurred, except such as may result from a breach of
this Agreement or from gross negligence or willful misconduct. Subject to the
limitations set forth herein, the Manager shall have the responsibility and
authority to manage the day-to-day operations of Indian including, but not
limited to, employment hiring and termination decisions. The Manager shall
perform his duties, and shall cause Indian's business to continue to be
operated, in compliance with all applicable federal, state, and local rules,
ordinances, regulations and statutes.
3.2 Employment Downsizing. The parties intend that, immediately
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after the Commencement Date, the Manager will cause Indian's work force to be
reduced as determined by the Manager. In connection with the reduction of
Indian's work force, Indian's board of directors shall have the right to direct
that the Manager cause Indian to make reasonable severance payments.
3.3 Collection of Revenues and Payment of Expenses; Accounting. The
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Manager shall have the duty and responsibility of collecting Indian's revenues,
managing its working capital, and making monthly payments therefrom of the
following obligations of Indian, in order of priority:
(a) First, to Indian's monthly overhead (salaries, rent, lease
payments, utilities, supplies, etc.);
(b) second, to payment of Indian's debt to BancOne based on 80
equal monthly payments of principal, plus accrued interest;
(c) third, to payment of Indian's lease operating expenses; and
(d) fourth, to payment of interest only on Indian's debt to
MidFirst Bank, N.A.
The expenses listed above are referred to as the "Overhead Expenses". If
Indian's revenues and working capital are sufficient in any month to pay all of
the Overhead Expenses, then the excess shall be used as follows, in order of
priority:
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(a) First, in payment to Coral of the Contingent Production
Payment; and
(b) second, at the discretion and direction of Indian's board of
directors; it being contemplated that Indian's board of directors will direct
that such excess be used to fund developmental drilling, reduce Indian's long-
term debt, and/or supplement Indian's working capital.
If Indian's revenues and working capital are insufficient, in any
month, to make the full Contingent Production Payment, then any unpaid portion
will be paid in the next month in which Indian's revenues and working capital
are sufficient, but only after paying all of that month's Overhead Expenses.
Payment of the Contingent Production Payment, or any other discretionary
payments, shall only be made to the extent permitted by Section 1.04 of the
Merger Agreement.
The Manager shall provide monthly financial statements to Indian's board of
directors with respect to Indian's revenues and expenses, which statement shall
contain information related to total revenues received and expenses paid.
3.4 Minor Assets Sale. In addition to the other duties and
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responsibilities described herein, the Manager shall have the obligation to sell
those of Indian's Interests that have been identified by Indian's board of
directors and Coral as Interests of Indian's that can be sold without materially
affecting Indian's Borrowing Base, as defined in the Credit Agreement between
Indian and BancOne, dated December 22, 1997.
3.5 Other. Upon the termination of Coral's obligation to include
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Indian in the Merger transaction contemplated by the Merger Agreement, and after
the 90-day negotiation period described in Section 1.15 of the Merger Agreement,
the Manager shall have the obligation to cause a timely sale and liquidation of
Indian's Interests, as directed and supervised by Indian's board of directors.
The proceeds of such sale and liquidation of Indian's Interests shall be paid as
set forth in Section 1.15 of the Merger Agreement.
3.6 Signature Authority. Subject to the restrictions set forth
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herein, the Manager shall have the authority of an executive officer of Indian,
including the authority to execute contracts and enter into agreements with
third parties on behalf of Indian in order to fulfill his duties and
responsibilities set forth herein.
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4. Restrictions on Authority. Notwithstanding any provisions of this
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Agreement or the Merger Agreement to the contrary, without first obtaining the
consent of Indian's board of directors, the Manger shall not, on behalf of or in
the name of Indian:
(a) Except in connection with a liquidation and sale of Indian's
Interests as provided in Section 1.15 of the Merger Agreement, sign any deed,
pledge agreement, mortgage, contract of sale or other commitment purporting to
sell, convey, encumber or refinance all or substantially all of Indian's
Interests;
(b) do any act that would change or substantially expand or
enlarge the business of Indian;
(c) conduct any exploratory or development drilling on behalf of
Indian;
(d) distribute or utilize insurance proceeds received upon the
total or substantial destruction of Indian's Interests in any manner other than
which may be dictated by any relevant loan agreements or other such documents;
(e) do any act in contravention of this Agreement;
(f) execute or deliver any assignment for the benefit of
creditors of Indian;
(g) lend any person any of the funds of Indian;
(h) confess a judgment against Indian;
(i) except in connection with a liquidation and sale of Indian's
Interests as provided in Section 1.15 of the Merger Agreement, do any act that
would make it impossible to carry on the ordinary business of Indian;
(j) except in connection with a liquidation and sale of Indian's
Interests as provided in Section 1.15 of the Merger Agreement, sell all or
substantially all of Indian's Interests;
(k) perform any act that would subject a shareholder or member of
the board of directors of Indian to personal liability; and
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(l) execute or approve any waiver by Indian of any of the Coral
Groups' obligations or conditions under this Agreement or the Merger Agreement;
amend, modify, or otherwise change, on behalf of Indian, any of the terms or
conditions of this Agreement or the Merger Agreement; or cause Indian to be in
default or in breach of any of its representations, warranties, obligations or
conditions under this Agreement or the Merger Agreement.
5. Indemnification. Coral agrees to indemnify and hold Indian harmless
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from and against any costs, liabilities, claims, demands, and causes of action,
including attorneys' fees, incurred by Indian and arising out of or in
connection with any material breach by Coral or the Manager of the terms of this
Agreement. Indian agrees to indemnify the Manager to the fullest extent
permitted by, but subject to the conditions and limitations of, Section 1031 of
the Oklahoma General Corporation Act, or its successor statute.
6. Term and Termination. The term of this Agreement shall begin as of
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the Commencement Date and shall continue until the earlier of (i) the mutual
agreement of the parties to terminate this Agreement or (ii) completion of
either the Merger of Indian into Coral Public or the sale and liquidation of
Indian's Interests; provided, however, if the Merger Agreement is terminated
prior to the consummation of either of such events in (ii) above, this Agreement
shall terminate, without any further action, as of the same date of termination
of the Merger Agreement; and provided further, however, that this Management
Agreement shall terminate as provided in Section 1.14(d) of the Merger
Agreement.
This Agreement may be terminated by Indian, upon five (5) days prior
written notice to Coral, if the Manager, Coral or any of the Coral Group
breaches any material term of this Agreement or the Merger Agreement.
Either party may terminate this Agreement if the other party shall be
adjudged bankrupt, or shall make a general assignment for the benefit of its
creditors or shall file a petition for arrangement with creditors or for
reorganization, or if a receiver shall be appointed on account of its
insolvency.
7. Notices. All notices, requests, demands or other communications
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required or permitted by this Agreement shall be made as set forth in the Merger
Agreement.
8. Counterparts. This Agreement may be executed in one or
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more counterparts, all of which shall be considered one and the same agreement
and shall be effective when one or more counterparts have been signed by each of
the parties hereto and delivered to each of the other parties hereto.
9. No Third Party Beneficiaries. Nothing in this Agreement, whether
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express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any person other than the parties to this Agreement,
nor is anything in this Agreement intended to relieve or discharge the
obligation or liability of any third persons to any party to this Agreement, nor
shall any provision give any third persons any rights of subrogation or action
over or against any party to this Agreement.
10. Assignment. Neither this Agreement nor any interest herein, nor any
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claim hereunder, shall be assigned or transferred by either party without the
prior written consent of the other party.
11. Partial Invalidity. If any provision of this Agreement shall be held
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to be void or unenforceable for any reason, said provision shall be deemed
modified so as to constitute a provision conforming as nearly as possible to
said void or unenforceable provision while still remaining valid and
enforceable, and the remaining terms and provisions hereof shall not be affected
thereby.
12. Entire Agreement. This Agreement and the Merger Agreement contain and
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constitute the entire agreement between the parties hereto and supersede all
prior agreements and understandings between the parties hereto relating to the
subject matter hereof. There are no agreements, understandings, restrictions,
warranties or representations between the parties relating to the subject matter
hereof other than those set forth or referred to herein. This Agreement is not
intended to have any legal effect whatsoever, or to be a legally binding
agreement or any evidence thereof, until the Commencement Date.
13. Amendment and Waiver. This Agreement may only be amended by a writing
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executed by each of the parties hereto. Any party may waive any requirement to
be performed by the other party, provided that such waiver shall be in writing
and executed by the party granting the waiver. The parties agree that a waiver
by one party on one occasion shall not be deemed a waiver on any other occasion.
14. Construction. This Agreement shall be construed,
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enforced and governed in accordance with the laws of the State of Oklahoma. In
the event any party hereto institutes any legal action in connection with any
matter contained herein, that legal action shall be instituted in the District
Court of Oklahoma County, Oklahoma, if in state court, and if federal court,
then in the federal district court located in Oklahoma City, Oklahoma. All
pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine or neuter gender thereof or to the plurals of each, as the identity of
the person or persons or the context may require. The descriptive headings
contained in this Agreement are for reference purposes only and are not intended
to describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision contained herein.
15. Binding Effect. This Agreement shall be binding upon, inure to the
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benefit of and be enforceable by and against the parties hereto and their
respective heirs, executors, personal representatives, successors and assigns.
Executed and delivered the day and year first above written.
INDIAN OIL COMPANY
By: ______________________________
Its: _________________________
CORAL RESERVES GROUP, LTD.
By: ______________________________
Its: _________________________
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