Exhibit 2.1 - Agreement for Share Exchange and Plan of Reorganization
AGREEMENT FOR SHARE EXCHANGE AND
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PLAN OF REORGANIZATION
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This AGREEMENT FOR SHARE EXCHANGE AND PLAN OF REORGANIZATION ("AGREEMENT")
dated as of January 11, 2002 is between WYOMING OIL & MINERALS, INC., a Wyoming
corporation ("WYOG"), NEW FRONTIER ENERGY, INC., a Colorado corporation ("NFE"),
and XXXXXXX XXXXXX as the principal shareholder of WYOG (the "Shareholder").
RECITALS:
WHEREAS, WYOG is engaged in the business of the exploration, development
and production of oil and natural gas (the "Business"), and WYOG's common stock
is publicly traded on the OTC Bulletin Board; and
WHEREAS, NFE also engages in the business of the exploration, development
and production of oil and natural gas, and WYOG desires to acquire the oil and
natural gas properties of NFE to enhance WYOG's Business and to enhance the
ability of WYOG to raise additional working capital to expand its business; and
WHEREAS, subject to the terms and conditions of this Agreement, NFE is
willing to exchange 100% of its common stock for shares of WYOG; and
WHEREAS, the parties intend that the transaction be treated as a
"stock-for-stock" tax-free reorganization pursuant to Section 368(a)(1)(B) by
application of Section 368(a)(2)(D) of the Internal Revenue Code of 1986, as
amended, to the extent possible.
NOW, THEREFORE, in consideration of the foregoing recitals, which shall be
considered an integral part of this Agreement, and the covenants, conditions,
representations and warranties hereinafter set forth, the parties hereby agree
as follows:
ARTICLE I
THE EXCHANGE
1.1 The Exchange.
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At the Closing (as hereinafter defined), WYOG shall acquire an aggregate of
8,556,923 shares of Common Stock of NFE, which shares represent 100% of the
issued and outstanding stock of NFE (the "Exchange"). Consideration to be issued
by WYOG for the NFE shares shall be the issuance of 8,556,923 shares of WYOG
(the shares of WYOG will be exchanged for the shares of NFE on a one-for-one
basis; the "Exchange Shares"), representing approximately 90% of the then-issued
Common Stock of WYOG. The Exchange shall take place upon the terms and
conditions provided for in this Agreement, the Colorado Business Corporation Act
("Colorado Act") and the Wyoming Statutes. As a result of the Exchange, the NFE
shareholders shall own Common Stock of WYOG and NFE will become a wholly owned
subsidiary of WYOG. For Federal income tax purposes, it is intended that the
Exchange shall constitute a reorganization within the meaning of Section 368 of
the Internal Revenue Code of 1986, as amended (the "Code").
1.2 Exchange of Warrants.
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Also at the Closing, the parties shall take such action as is required for
WYOG to exchange warrants to acquire its common stock for all warrants of NFE
outstanding before the Exchange, such warrants of WYOG to have substantially the
same terms and conditions as the warrants of NFE.
1.3 Closing and Effective Time.
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Subject to the provisions of this Agreement, the parties shall hold a
closing (the "Closing") on (i) the first business day on which the last of the
conditions set forth in Article V to be fulfilled prior to the Closing is
fulfilled or waived or (ii) such other date as the parties hereto may agree (the
"Closing Date"), at such time and place as the parties hereto may agree. The
Exchange shall become effective upon the filing of Articles of Share Exchange
with the Secretary of State of the State of Colorado or at such later time as is
provided in the Articles of Share Exchange (the "Effective Time").
1.4 Conversion and Cancellation of Shares in the Exchange.
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As of the Effective Time, by virtue of the Exchange and without any action
on the part of WYOG or NFE, each issued and outstanding share of capital stock
of NFE which was issued and outstanding before the Exchange shall be converted
into the right to receive one share of Common Stock, par value $.01 per share of
WYOG, with the result that after the effective time, NFE shall become a wholly
owned subsidiary of WYOG. All such converted shares of NFE except one shall no
longer be outstanding and shall automatically be canceled and retired and shall
cease to exist. WYOG shall own one share of NFE.
1.5 NFE's Option to Restructure as Triangular Merger If Unfavorable Tax
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Consequences.
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Based on WYOG's representations and warranties contained in this Agreement,
NFE believes the transactions contemplated by this Agreement should qualify as
"stock-for-stock" tax-free reorganization pursuant to Section 368(a)(1)(B) of
the Internal Revenue Code. If NFE concludes that, due to WYOG's capital
structure or other facts, that the proposed structure as a share exchange does
not appear to qualify as a tax-free reorganization, NFE may require, by written
notice to WYOG, that the transaction be restructured as a triangular merger or
similar structure in order to improve the prospects of qualifying as a tax-free
reorganization, in which case WYOG agrees to take all steps reasonably requested
by NFE to accomplish such alternative structure. Notwithstanding the foregoing,
nothing will require NFE to restructure this transaction and nothing in this
section shall change the economics of the transaction for either party.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of NFE.
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NFE represents and warrants to WYOG as follows:
(a) Organization, Standing and Power.
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NFE is a corporation duly organized, validly existing and in good standing
under the laws of the State of Colorado, has all requisite power and
authority to own, lease and operate its properties and to carry on its
business as now being conducted, and is duly qualified and in good standing
to do business in each jurisdiction in which the nature of its business or
the ownership or leasing of its properties makes such qualification
necessary other than in such jurisdictions where the failure so to qualify
would not have a material adverse affect on NFE taken as a whole.
(b) Capital Structure.
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The authorized capital stock of NFE consists of 50,000,000 shares of Common
Stock, par value $.001 per share and 25,000,000 shares of Preferred Stock,
par value $.001 per share. As of the close of business on November 20,
2001, 8,556,923 shares of NFE Common Stock were outstanding; no shares of
NFE Common Stock were held by NFE in its treasury, and no shares of NFE
Preferred Stock were issued or outstanding. All outstanding shares of NFE
Common Stock are validly issued, fully paid and nonassessable and not
subject to preemptive rights. All of the issued and outstanding shares of
NFE Common Stock were issued in compliance with all Federal and state
securities laws. Except as set forth in Schedule 2.1(b), there are no
options, warrants, calls, agreements or other rights to purchase or
otherwise acquire from NFE at any time, or upon the happening of any stated
event, any shares of the capital stock of NFE, whether or not presently
issued or outstanding.
(c) Certificate of Incorporation, By-Laws, and Minute Books.
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The copies of the Articles of Incorporation and of the By-Laws of NFE that
have been delivered to WYOG are true, correct and complete copies thereof.
The minute books of NFE which have been made available for inspection
contain accurate minutes of all meetings and accurate consents in lieu of
meetings of the Board of Directors (and any committee thereof) and of the
shareholders of NFE since the respective dates of incorporation and
accurately reflect all transactions referred to in such minutes and
consents in lieu of meetings.
(d) Authority.
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NFE has all requisite power and authority to enter into this Agreement and
to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of Directors of
NFE. No other corporate or shareholder proceedings on the part of NFE are
necessary to authorize the Exchange, or the other transactions contemplated
hereby, except the vote of a majority of the shares of NFE entitled to
vote.
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(e) Conflict with Other Agreements; Approvals.
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Except as set forth in Schedule 2.1(e), the execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated
hereby will not result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or the loss of
a material benefit under, or the creation of a lien, pledge, security
interest or other encumbrance on assets (any such conflict, violation,
default, right of termination, cancellation or acceleration, loss or
creation, a "Violation") pursuant to any provision of the Articles of
Incorporation or By-laws or any organizational document of NFE or, result
in any Violation of any loan or credit agreement, note, mortgage,
indenture, lease, benefit plan or other agreement, obligation, instrument,
permit, concession, franchise, license, judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to NFE which Violation would
have a material adverse effect on NFE taken as a whole. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign (a "Governmental Entity")
is required by or with respect to NFE in connection with the execution and
delivery of this Agreement by NFE or the consummation by NFE of the
transactions contemplated hereby, the failure to obtain which would have a
material adverse effect on NFE, taken as a whole, except for the filing of
Articles of Share Exchange with the Secretary of State of Colorado.
(f) Financial Statements.
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NFE has furnished WYOG its unaudited balance sheet as of October 31, 2001
and statements of income, cash flow and shareholders' equity for the
two-year period then ended (the "NFE Financial Statements"). The NFE
Financials Statements are complete and correct in all material respects and
fairly present in all material respects the financial condition and results
of the operations of NFE and the changes in its financial position at such
date and for such periods and show all material liabilities, absolute or
contingent of NFE.
(g) Books and Records.
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NFE has made and will make available for inspection by WYOG upon reasonable
request all the books of NFE relating to the business of NFE. Such books of
NFE have been maintained in the ordinary course of business. All documents
furnished to WYOG by NFE are true and correct copies, and there are no
amendments or modifications thereto except as set forth in such documents.
(h) Compliance with Laws.
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NFE is and has been in compliance in all material respects with all laws,
regulations, rules, orders, judgments, decrees and other requirements and
policies imposed by any Governmental Entity applicable to it, its
properties or the operation of its businesses.
(i) Absence of Certain Changes or Events.
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Except as disclosed in Schedule 2.1(i) or except as contemplated by this
Agreement, since the date of the NFE Financial Statements, NFE has
conducted its business only in the ordinary course, and, as of the date of
this Agreement, there has not been (i) any material adverse change, alone
or in the aggregate, in the business, assets, liabilities, condition
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(financial or otherwise), results of operations or prospects of NFE; or
(ii) any declaration, setting aside or payment of any dividend or other
distribution (whether in cash, stock or property) with respect to any of
NFE 's capital stock.
(j) Liabilities and Obligations.
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As of the date of this Agreement, NFE does not have any material
liabilities or obligations (direct or indirect, contingent or otherwise)
except (i) liabilities that are reflected and reserved against in the NFE
Financial Statements that have not been paid or discharged since the date
thereof and (ii) liabilities incurred since October 31, 2001 in the
ordinary course of business consistent with past practice and in accordance
with this Agreement.
(k) Litigation.
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There is no suit, action or proceeding pending, or, to the knowledge of
NFE, threatened against or affecting NFE or its assets which is reasonably
likely to have a material adverse effect on NFE, nor is there any judgment,
decree, injunction, rule or order of any Governmental Entity or arbitrator
outstanding against NFE having, or which, insofar as reasonably can be
foreseen, in the future could have, any such effect.
(l) Taxes.
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NFE has filed or will file within the time prescribed by law and (including
extension of time approved by the appropriate taxing authority) all tax
returns and reports required to be filed with the United States Internal
Revenue Service and with all other jurisdictions where such filing is
required by law or where the failure to file would have a material adverse
effect on NFE; and NFE has paid, or has made adequate provision in the NFE
Financial Statements, for the payment of all taxes, interest, penalties,
assessments or deficiencies shown due and payable on, and with respect to
all periods ending prior to October 31, 2001. NFE knows of (i) no other tax
returns or reports which are required to be filed which have not been so
filed or where the failure to file would have a material adverse effect on
NFE and (ii) no unpaid assessment for additional taxes for any fiscal
period or any basis therefor.
(m) Assets.
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NFE has good and marketable title to all its real and personal properties
and assets reflected in the NFE Financial Statements, free and clear of all
mortgages, liens, pledges, charges or encumbrances or other third party
interests of any nature whatsoever, except (i) as otherwise disclosed in
the NFE Financial Statements, (ii) the lien of current taxes not yet due
and payable, (iii) properties, interests, and assets disposed of by NFE
since October 31, 2001 solely in the ordinary course of business consistent
with past practice or as disclosed in Schedule 2.1(m) and (iv) such
imperfections of title, easements and encumbrances, if any, as are not
substantial in character, amount or extent and do not materially detract
from the value, or interfere with the present or proposed use, of the
properties subject thereto.
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(n) Contracts.
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All written or oral contracts, agreements, loan agreements, leases,
mortgages or commitments ("Contracts"), excluding Contracts involving
payments of less than $10,000 over the term thereof, to which NFE is a
party or may be bound and which cannot be terminated by NFE without penalty
within 30 days after written notice are listed on Schedule 2.1(n). Except
as described in Schedule 2.1(n) hereto, all Contracts are valid and in full
force and effect on the date hereof, and NFE has not violated any provision
of, or committed or failed to perform any act which with notice, lapse of
time or both would constitute a default under the provisions of, any
Contract, the termination or violation of which might have a materially
adverse effect upon the business, assets, liabilities, condition (financial
or otherwise), results of operations or prospects of NFE. True and complete
copies of all Contracts, together with all amendments thereto, disclosed in
Schedule 2.1(n) have been delivered to WYOG or made available for
inspection. Schedule 2.1(n) identifies all Contracts that require the
consent or approval of third parties to the execution and delivery of this
Agreement or to the consummation and performance of the transactions
contemplated hereby.
(o) Benefit Plans.
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NFE has no benefit plans for any of its employees, except a health
insurance policy with standard terms and conditions.
(p) Licenses, Permits; Intellectual Property.
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NFE owns or possesses in the operation of its business all material
franchises, licenses, permits, consents, approvals, rights, waivers and
other authorizations, governmental or otherwise ("Authorization"), which
are necessary for it to conduct its business as now conducted. NFE is not
in material default, and has not received any notice of any claim of
default, with respect to any such Authorization or any notice of any other
claim or proceeding or threatened proceeding relating to any such
Authorization or claimed lack of any necessary Authorization. Neither the
execution or delivery of this Agreement nor the consummation of the
transactions contemplated hereby will require any notice or consent under
or have any material adverse effect upon any such Authorization.
(q) Transactions and Affiliates.
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Except as described in Schedule 2.1(q), no director or officer of NFE or
any member of his or her immediate family, is a party to any Contract or
other business arrangement or relationship of any kind with NFE or any NFE
Entity or, except for the ownership of not more than 1% of the stock of a
WYOG having a class of securities registered pursuant to the Exchange Act,
has an ownership interest in any business, corporate or otherwise, which is
a party to, or in any property which is the subject of, business
arrangements or relationships of any kind with NFE .
(r) Brokerage.
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No broker, finder or investment banker is entitled to any brokerage,
finders or other fee or commission in connection with the Exchange based
upon arrangements made by or on behalf of NFE.
(s) Disclosure.
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No representation or warranty by NFE in this Agreement, nor any statement,
certificate, schedule, document or exhibit hereto furnished or to be
furnished by or on behalf of NFE pursuant to this Agreement or in
connection with transactions contemplated hereby, contains or shall contain
any untrue statement of material fact or omits or shall omit a material
fact necessary to make the statements contained therein not misleading. All
statements and information contained in any certificate, instrument,
Disclosure Schedule or document delivered by or on behalf of NFE shall be
deemed representations and warranties by NFE.
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2.2 Representations and Warranties of WYOG and the Shareholder.
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WYOG and the Shareholder jointly and severally represent and warrant to NFE
as follows:
(a) Organization, Standing and Power.
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WYOG is a corporation duly organized, validly existing and in good standing
under the laws of the State of Wyoming, has all requisite power and
authority to own, lease and operate its properties and to carry on its
business as now being conducted, and is duly qualified and in good standing
to do business in each jurisdiction in which the nature of its business or
the ownership or leasing of its properties makes such qualification
necessary other than in such jurisdiction where the failure so to qualify
would not have a material adverse effect on WYOG and the WYOG Entities (as
hereinafter defined) taken as a whole. Listed in Schedule 2.2(a) is a list
of all subsidiaries of WYOG and partnerships, joint ventures or other
entities in which WYOG has an interest as of the date of this Agreement
(collectively, the "WYOG Entities"). All of these entities are duly
organized, validly existing and in good standing in the jurisdiction in
which they were formed. All such entities are qualified to do business in
all jurisdictions in which the nature of their business or the ownership of
their properties requires such qualification.
(b) Capital Structure.
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The authorized capital stock of WYOG consists of 25,000,000 shares of
Common Stock, par value $.01 per share and no shares of Preferred Stock. As
of the date hereof, 890,716 shares of Common Stock were outstanding; no
shares of Common Stock are held by WYOG in its treasury. All outstanding
shares of Common Stock are validly issued, fully paid and non-assessable
and not subject to preemptive rights. All of the issued and outstanding
shares of Common Stock were issued in compliance with all Federal and state
securities laws. Except for options described in Schedule 2.2(b) hereto,
there are no options, warrants, calls, agreements or other rights to
purchase or otherwise acquire from WYOG at any time, or upon the happening
of any stated event, any shares of the capital stock of WYOG, whether or
not presently issued or outstanding.
(c) Authority.
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WYOG has all requisite power and authority to enter into and to perform its
obligations under this Agreement and all agreements to which WYOG is or
will be a party that will be required at the Closing (the "WYOG Ancillary
Agreements"). The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and thereby have been
duly authorized by the Boards of Director of WYOG. No other corporate or
shareholder proceedings on the part of WYOG are necessary to authorize the
Exchange, or the other transactions contemplated hereby and thereby. This
Agreement has been duly executed and delivered by WYOG and constitute a
valid and binding obligation of WYOG enforceable in accordance with its
terms, except as to the effect, if any, of (i) applicable bankruptcy and
other similar laws affecting the rights of creditors generally and (ii)
rules of law governing specific performance, injunctive relief and other
equitable remedies; provided, however, that the Certificate of Exchange
will not be effective until the Effective Time.
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(d) Conflict with Other Agreements; Approvals.
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The execution and delivery of this Agreement does not, and the consummation
of the transactions contemplated hereby will not result in any violation
of, or default (with or without notice or lapse of time, or both) under, or
give rise to a right of termination, cancellation or acceleration of any
obligation or the loss of a material benefit under, or the creation of a
lien, pledge, security interest or other encumbrance on assets (any such
conflict, violation, default, right of termination, cancellation or
acceleration, loss or creation, a "Violation") pursuant to any provision of
the Articles of Incorporation or By-laws or any organizational document of
WYOG or result in any Violation of any loan or credit agreement, note,
mortgage, indenture, lease, benefit plan or other agreement, obligation,
instrument, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to WYOG or
the WYOG Entities, which Violation would have a material adverse effect on
WYOG or the WYOG Entities taken as a whole. No consent, approval, order or
authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign (a "Governmental Entity") is required
by or with respect to WYOG or the WYOG Entities in connection with the
execution and delivery of this Agreement by WYOG or the consummation by
WYOG of the transactions contemplated hereby, the failure to obtain which
would have a material adverse effect on WYOG or the WYOG Entities taken as
a whole, except for (i) the filing of such documents with, and the
obtaining of such orders from, the Securities and Exchange Commission (the
"SEC"), the various state authorities, including state securities
authorities, that are required in connection with the transactions
contemplated by this Agreement; and (ii) the filing of Articles of Share
Exchange with the Secretary of State of Colorado and Wyoming, respectively.
(e) SEC Documents.
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WYOG has furnished NFE with a true and complete copy of each report,
schedule, registration statement and definitive proxy statement filed by
WYOG with the SEC since November 6, 1995 (as such documents have since the
time of their filing been amended, the "WYOG SEC Documents") and since that
date, WYOG has filed with the SEC all documents required to be filed
pursuant to Sections 13, 14 and 15 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). As of their respective dates, the WYOG SEC
Documents complied in all material respects with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), or the Exchange
Act, as the case may be, and the rules and regulations of the SEC
thereunder applicable to such WYOG SEC Documents, and none of WYOG SEC
Documents contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The financial statements of WYOG included in WYOG SEC
Documents comply as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the
SEC with respect thereto, are accurate and in accordance with the books and
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records of WYOG, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto or, in the case
of the unaudited statements, as permitted by Form 10-QSB of the SEC) and
fairly present (subject, in the case of the unaudited statements, to
normal, recurring audit adjustments) the consolidated financial position of
WYOG as at the dates thereof and the consolidated results of its operations
and cash flows for the periods then ended.
(f) Books and Records.
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WYOG has made and will make available for inspection by NFE upon reasonable
request all the books of WYOG relating to the business of WYOG. Such books
of WYOG have been maintained in the ordinary course of business. All
documents furnished to NFE by WYOG are true and correct copies, and there
are no amendments or modifications thereto except as set forth in such
documents.
(g) Compliance with Laws.
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WYOG has and have been in compliance in all material respects with all
laws, regulations, rules, orders, judgments, decrees and other requirements
and policies imposed by any Governmental Entity applicable to it, its
properties or the operation of its businesses.
(h) Absence of Certain Changes or Events.
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Except as disclosed in WYOG SEC Documents filed prior to the date of this
Agreement or in the audited balance sheets of WYOG and the related
statements of income, cash flows and changes in shareholders' equity as of
and for the period ended February 28, 2001 (the "WYOG 2001 Financials"),
true and correct copies of which have been delivered to NFE, or except as
contemplated by this Agreement or except as set forth on Schedule 2.2(h),
since the date of WYOG 2001 Financials, WYOG has conducted its business
only in the ordinary course, and, as of the date of this Agreement, there
has not been (i) any material adverse change, alone or in the aggregate, in
the business, assets, liabilities, condition (financial or otherwise),
results of operations or prospects of WYOG; or (ii) any declaration,
setting aside or payment of any dividend or other distribution (whether in
cash, stock or property) with respect to any of WYOG's capital stock.
(i) Liabilities and Obligations.
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Except as set forth in Schedule 2.2(i) and as may have been incurred since
August 31, 2001 in the ordinary course of business consistent with past
practice, all of the liabilities of WYOG are listed in the WYOG SEC
Reports.
(j) Compliance With Securities Laws.
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Since its inception, WYOG has not offered or sold any of its securities
except in compliance with all applicable federal and state securities laws.
Without limiting the foregoing, all shares of capital stock sold by WYOG
were sold in compliance with the registration requirements of the 1933 Act
or in reliance on exemptions from registration for private or limited
offerings under the 1933 Act and all applicable state securities laws and
in compliance with all applicable disclosure requirements under federal and
state law. Attached as Schedule 2.2(j) is a true and complete list of all
security holders of WYOG as of the date of this Agreement, containing the
names and addresses of each security holder of record.
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(k) Litigation.
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Except as set forth in Schedule 2.2(k) hereof, there is no action,
proceeding, claim or investigation pending against WYOG before any federal,
state, municipal, foreign or other court or administrative agency,
department, board or instrumentality that, if concluded adversely to WYOG,
would have a material adverse effect, and no such action, proceeding, claim
or investigation has been threatened. There is no reasonable basis for any
shareholder or former shareholder of WYOG, or any other person, firm,
corporation or entity to assert a claim against WYOG based upon: (a)
ownership or rights to ownership of any shares of the WYOG's capital stock;
(b) any rights as, or to become a holder of securities of WYOG, including
any option or preemptive rights or rights to notice or to vote; or (c) any
rights under any agreement among WYOG and any of its shareholders or former
shareholders or option holders or former option holders.
(l) Taxes.
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WYOG has filed or will file within the time prescribed by law and
(including extension of time approved by the appropriate taxing authority)
all tax returns and reports required to be filed with the United States
Internal Revenue Service and with all other jurisdictions where such filing
is required by law or where the failure to file would have a material
adverse effect on the Company; and the Company has paid, or has made
adequate provision in the Company Interim Financial Statements for the
payment of all taxes, interest, penalties, assessments or deficiencies
shown due and payable on, and with respect to all periods ending prior to
February 28, 2001. WYOG knows of (i) no other tax returns or reports which
are required to be filed which have not been so filed or where the failure
to file would have a material adverse effect on WYOG and (ii) no unpaid
assessment for additional taxes for any fiscal period or any basis
therefor.
(m) Contracts.
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All written or oral contracts, agreements, loan agreements, leases,
mortgages or commitments ("Contracts"), excluding Contracts involving
payments of less than $10,000 over the term thereof, to which Company is a
party or may be bound and which cannot be terminated by Company without
penalty within 30 days after written notice are listed on Schedule 2.2(m).
Except as described in Schedule 2.2(m) hereto, all Contracts are valid and
in full force and effect on the date hereof, and Company has not violated
any provision of, or committed or failed to perform any act which with
notice, lapse of time or both would constitute a default under the
provisions of, any Contract, the termination or violation of which might
have a materially adverse effect upon the business, assets, liabilities,
condition (financial or otherwise), results of operations or prospects of
Company. True and complete copies of all Contracts, together with all
amendments thereto, disclosed in Schedule 2.2(m) have been delivered to NFE
or made available for inspection. Schedule 2.2(m) identifies all Contracts
that require the consent or approval of third parties to the execution and
delivery of this Agreement or to the consummation and performance of the
transactions contemplated hereby.
(n) Environmental Matters.
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Except as set forth on Schedule 2.2(n), the Company is in compliance with
all environmental laws and has no knowledge of any existing or potential
claim.
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(o) No Misrepresentations or Omissions.
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No representation or warranty by WYOG in this Agreement, nor any statement,
certificate, schedule, document or exhibit hereto furnished or to be
furnished by or on behalf of WYOG pursuant to this Agreement or in
connection with transactions contemplated hereby, contains or shall contain
any untrue statement of material fact or omits or shall omit a material
fact necessary to make the statements contained therein not misleading. All
statements and information contained in any certificate, instrument,
Disclosure Schedule or document delivered by or on behalf of WYOG shall be
deemed representations and warranties by WYOG.
(p) Brokers.
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No broker, finder or investment banker is entitled to any brokerage,
finders or other fee or commission in connection with the Exchange based
upon arrangements made by or on behalf of WYOG.
ARTICLE III
COVENANTS RELATING TO CONDUCT OF BUSINESS
3.1 Covenants of NFE and WYOG.
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During the period from the date of this Agreement and continuing until the
Effective Time, NFE and WYOG each agree as to itself and its related entities
and subsidiaries that (except as expressly contemplated or permitted by this
Agreement, or to the extent that the other party shall otherwise consent in
writing):
(a) Ordinary Course.
--------------------
Each party and their respective entities and subsidiaries shall carry on
their respective businesses in the usual, regular and ordinary course in
substantially the same manner as heretofore conducted.
(b) Dividends; Changes in Stock.
--------------------------------
No party shall, nor shall any party permit any of its subsidiaries to, nor
shall any party propose to, (i) declare or pay any dividends on or make
other distributions in respect of any of its capital stock, (ii) split,
combine or reclassify any of its capital stock or issue or authorize or
propose the issuance of any other securities in respect of, in lieu of or
in substitution for shares of its capital stock or (iii) repurchase or
otherwise acquire, or permit any subsidiary to purchase or otherwise
acquire, any shares of its capital stock.
(c) Issuance of Securities.
---------------------------
No party shall, nor shall any party permit any of its subsidiaries to,
issue, deliver or sell, or authorize or propose the issuance, delivery or
sale of, any shares of its capital stock of any class, any voting debt or
any securities convertible into, or any rights, warrants or options to
acquire, any such shares, voting debt or convertible securities except the
shares that are to be issued for the proposed financing for this exchange;
provided that WYOG shall issue new equity securities in an effort to raise
the financing discussed in section 5.2(h).
(d) Governing Documents.
--------------------------
No party shall amend or propose to amend its Certificate of Incorporation
or By-laws.
11
(e) No Solicitations.
---------------------
No party shall, nor shall any party permit any of its related entities or
subsidiaries to, nor shall it authorize or permit any of its officers,
directors or employees or any investment banker, financial advisor,
attorney, accountant or other representative retained by it or any of its
related entities or subsidiaries to, solicit or encourage (including by way
of furnishing information), or take any other action to facilitate, any
inquiries or the making of any proposal which constitutes, or may
reasonably be expected to lead to, any takeover proposal, or agree to or
endorse any takeover proposal. Each party shall promptly advise the other
orally and in writing of any such inquiries or proposals. As used in this
Agreement, "takeover proposal" shall mean any tender or exchange offer,
proposal for a Exchange, consolidation or other business combination
involving a party hereto or any related entity or subsidiary of such party
or any proposal or offer to acquire in any manner a substantial equity
interest in, or a substantial portion of the assets of, such party or
related entity or any of its subsidiaries other than the transactions
contemplated by this Agreement.
(f) No Acquisitions.
--------------------
No party shall, nor shall any party permit any of its related entities or
subsidiaries to, acquire or agree to acquire by merging or consolidating
with, or by purchasing a substantial equity interest in or a substantial
portion of the assets of, or by any other manner, any business or any
corporation, partnership, association or other business organization or
division thereof or otherwise acquire or agree to acquire any assets in
each case which are material, individually or in the aggregate, to such
party and related entities and its subsidiaries taken as a whole, except
for the transactions that are proposed as a part of this exchange.
(g) No Dispositions.
--------------------
Except for the transfer of assets in the ordinary course of business
consistent with prior practice, no party shall, nor shall any party permit
any of its related entities or subsidiaries to, sell, lease, encumber or
otherwise dispose of, or agree to sell, lease, encumber or otherwise
dispose of, any of its assets, which are material, individually or in the
aggregate, to such party, its related entities and its subsidiaries taken
as a whole.
(h) Indebtedness.
-----------------
No party shall, nor shall any party permit any of its related entities or
subsidiaries to, incur any indebtedness for borrowed money or guarantee any
such indebtedness or issue or sell any debt securities or warrants or
rights to acquire any debt securities of such party or related entities or
any of its subsidiaries or guarantee any debt securities of others other
than in each case in the ordinary course of business consistent with prior
practice.
(i) Compensation.
-----------------
No party shall grant any increase in the salary or other compensation of
its officers or other employees or grant any bonus to any officer or other
employee or enter into any employment agreement or make any loan to or
enter into any material transaction of any other nature with any officer or
other employee of such party.
(j) No New Severance.
---------------------
No party shall take any action to institute any new severance or
termination pay practices with respect to any directors or officers or
other employees of such party or to increase the benefits payable under its
severance or termination pay practices.
12
(k) Benefit Plans.
------------------
No party shall adopt or amend, in any respect, except as may be required by
applicable law or regulation, any bonus, profit sharing, compensation,
stock option, restricted stock, pension, retirement, deferred compensation,
employment or other employee benefit plan, agreement, trust, fund, plan or
arrangement for the benefit or welfare of any directors or officers or
other employees except as otherwise contemplated by this Agreement.
3.2 Other Actions.
------------------
No party shall, nor shall any party permit any of its related entities
subsidiaries to, take any action that would or is reasonably likely to result in
any of its representations and warranties set forth in this Agreement being
untrue as of the date made (to the extent so limited), or in any of the
conditions to the Exchange set forth in Article V not being satisfied.
3.3 Advice of Changes; Filings.
-------------------------------
Each party shall confer on a regular and frequent basis with the other,
report on operational matters and promptly advise the other orally and in
writing of any change or event having, or which, insofar as can reasonably be
foreseen, could have, a material adverse effect on such party and its related
entities and subsidiaries taken as a whole. Each party shall promptly provide
the other (or its counsel) copies of all filings made by such party with any
State or Federal Governmental Entity in connection with this Agreement and the
transactions contemplated hereby and thereby.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 Shareholder Approval of NFE.
--------------------------------
The Board of Directors of NFE agree to submit the proposed Exchange to the
Shareholders of NFE for approval as quickly as practical in accordance with the
provisions of the Colorado Act, and to recommend to the shareholders the
approval of the Exchange.
4.2 Restricted WYOG Shares.
---------------------------
(a) The Exchange Shares will not be registered under the Securities Act,
but will be issued pursuant to an exemption from such registration requirements
based upon representations and warranties made by the shareholders of NFE.
Accordingly, the Exchange Shares will constitute "restricted securities" for
purposes of the Securities Act and applicable state securities laws and
shareholders will not be able to transfer such Exchange Shares except upon
compliance with the registration requirements of the Securities Act and
applicable state securities laws or an exemption therefrom. The certificates
evidencing the Exchange Shares shall contain a legend to the foregoing effect.
13
4.3 Access to Information.
--------------------------
Upon reasonable notice, WYOG and NFE shall each afford to the officers,
employees, accountants, counsel and other representatives of the other and NFE,
access, during normal business hours during the period prior to the Effective
Time, to all its properties, books, contracts, commitments and records and,
during such period, each of WYOG and NFE shall furnish promptly to the other (a)
a copy of each report, schedule, registration statement and other document filed
or received by it during such period pursuant to the requirements of Federal or
state securities laws and (b) all other information concerning its business,
properties and personnel as such other party may reasonably request. Unless
otherwise required by law, the parties will hold any such information which is
nonpublic in confidence until such time as such information otherwise becomes
publicly available through no wrongful act of either party, and in the event of
termination of this Agreement for any reason each party shall promptly return
all nonpublic documents obtained from any other party, and any copies made of
such documents, to such other party.
4.4 Legal Conditions to Exchange.
---------------------------------
WYOG and NFE will take all reasonable actions necessary to comply promptly
with all legal requirements which may be imposed on itself with respect to the
Exchange and will promptly cooperate with and furnish information to each other
in connection with any such requirements imposed upon any of them or any of
their related entities or subsidiaries in connection with the Exchange. Each
party will, and will cause its related entities or subsidiaries to, take all
reasonable actions necessary to obtain (and will cooperate with each other in
obtaining) any consent, authorization, order or approval of, or any exemption
by, any Governmental Entity or other public or private third party, required to
be obtained or made by WYOG or NFE or any of their related entities or
subsidiaries in connection with the Exchange or the taking of any action
contemplated thereby or by this Agreement.
4.5 WYOG Board of Directors and Officers.
-----------------------------------------
All of the officers and directors of WYOG shall resign as of the Closing
Date, except Xxxx Xxxxxxx, who shall then appoint Xxxxxxx X. XxXxxxxxx and Xxxx
X. Xxxxxx to the Board of Directors.
4.6 Expenses.
-------------
All costs and expenses incurred in connection with this Agreement, and the
transactions contemplated hereby, shall be paid by the party incurring such
expense.
4.7 Subsequent SEC Filings.
---------------------------
After the Closing Date, the following documents shall be filed by WYOG with
the SEC and/or the National Association of Securities Dealers, Inc.:
(a) Within the time required by the Rules of the Commission, file a current
report on Form 8-K containing the information required in such rules of
form;
(b) Within seventy-five (75) days following the Closing Date, WYOG shall
file under cover of Form 8-K, audited financial statements of NFE, proforma
financial information and other disclosures as required by Form 8-K of the
Exchange Act and Regulation S-B of the 1933 Act;
(c) WYOG shall cause to be filed such other reports as may be required to
be filed with the SEC or the Nasdaq Stock Market by Sections 13 or 15(d) of
the Exchange Act or necessary to maintain listing of the Common Stock on
the Bulletin Board.
4.8 Indemnification by Shareholder.
-----------------------------------
Shareholder agrees to execute and be bound by the terms and conditions of
the Indemnification Agreement attached hereto as Annex 1 to this Agreement in
order to indemnify NFE and WYOG from certain liabilities incurred by either
party in connection with the litigation presently pending against WYOG in the
Moffat County District Court and commenced by Xxxxxxxx Petroleum Company.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Each Party's Obligation
-----------------------------------------
To Affect the Exchange. The respective obligation of each party to affect
the Exchange shall be subject to the satisfaction prior to the Closing Date of
the following conditions:
(a) Necessary Approvals.
------------------------
All authorizations, consents, orders or approvals of, or declarations or
filings with, or expirations of waiting periods imposed by, any
Governmental Entity the failure to obtain which would have a material
adverse effect on WYOG and its subsidiaries and related entities, taken as
a whole, shall have been filed, occurred or been obtained. WYOG shall have
received all state securities or "Blue Sky" permits and other
authorizations necessary to issue the Exchange Shares and to consummate the
Exchange.
5.2 Conditions of Obligations of WYOG.
--------------------------------------
The obligations of WYOG to affect the Exchange are subject to the
satisfaction of the following conditions on or before the Closing Date unless
waived by WYOG:
(a) Representations and Warranties.
-----------------------------------
The representations and warranties of NFE set forth in this Agreement shall
be true and correct in all material respects as of the date of this
Agreement and (except to the extent such representations and warranties
speak as of an earlier date) as of the Closing Date as though made on and
as of the Closing Date, except as otherwise contemplated by this Agreement,
and WYOG shall have received a certificate signed on behalf of NFE by the
President of NFE to such effect.
(b) Performance of Obligations of NFE.
--------------------------------------
NFE shall have performed in all material respects all obligations required
to be performed by it under this Agreement at or prior the Closing Date,
and WYOG shall have received a certificate signed on behalf of NFE by the
President to such effect.
(c) Opinion of Counsel for NFE.
-------------------------------
WYOG shall have received an opinion dated the Closing Date of Xxxxxxx,
Xxxxxxx & Associates, P.C., counsel for NFE, in form and substance
reasonably satisfactory to WYOG and its counsel relating to such matters as
are customarily delivered in connection with an Exchange transaction,
including an opinion that the Exchange has been approved by all requisite
action of NFE and its shareholders in accordance with Colorado law.
15
(d) Closing Documents.
----------------------
WYOG shall have received such certificates and other closing documents, as
counsel for WYOG shall reasonably request.
(e) Consents.
-------------
NFE shall have obtained the consent or approval of each person whose
consent or approval shall be required in connection with the transactions
contemplated hereby under any loan or credit agreement, note, mortgage,
indenture, lease or other agreement or instrument, except those for which
failure to obtain such consents and approvals would not, in the reasonable
opinion of WYOG, individually or in the aggregate, have a material adverse
effect on NFE and its subsidiaries and related entities taken as a whole
upon the consummation of the transactions contemplated hereby. NFE shall
also have received the approval of its shareholders in accordance with
applicable law.
(f) Pending Litigation.
-----------------------
There shall not be any litigation or other proceeding pending or threatened
to restrain or invalidate the transactions contemplated by this Agreement,
which, in the sole reasonable judgment of WYOG, made in good faith, would
make the consummation of the Exchange imprudent. In addition, there shall
not be any other litigation or other proceeding pending or threatened
against NFE, or any NFE Entity, the consequences of which, in the judgment
of WYOG, could be materially adverse to NFE, or any NFE Entity.
5.3 Conditions of Obligations of NFE.
-------------------------------------
The obligation of NFE to effect the Exchange is subject to the satisfaction
of the following conditions unless waived by NFE:
(a) Representations and Warranties.
-----------------------------------
The representations and warranties of WYOG set forth in this Agreement
shall be true and correct in all material respects as of the date of this
Agreement and (except to the extent such representations speak as of an
earlier date) as of the Closing Date as though made on and as of the
Closing Date, except as otherwise contemplated by this Agreement, NFE shall
have received a certificate signed on behalf of WYOG by the Chief Executive
Officer to such effect.
(b) Performance of Obligations of WYOG.
---------------------------------------
WYOG shall have performed in all material respects all obligations required
to be performed by it under this Agreement at or prior to the Closing Date,
and NFE shall have received a certificate signed on behalf of WYOG by the
Chief Executive Officer to such effect.
(c) Opinion of Counsel for WYOG.
--------------------------------
NFE shall have received an opinion dated the Closing Date of Xxxxxxx &
X'Xxxxx, P.C., counsel for WYOG, in form and substance reasonably
satisfactory to NFE and its counsel relating to such matters as are
customarily delivered in connection with an Exchange transaction.
(d) Business Review.
--------------------
NFE shall have completed to its reasonable satisfaction a review of the
business operations, finances, assets and liabilities of WYOG and shall not
have determined that any of the representations or warranties of WYOG
contained herein are, as of the date hereof or the Closing Date, inaccurate
in any material respect or that WYOG is in violation of any term of this
Agreement.
16
(e) Closing Documents.
----------------------
NFE shall have received such certificates and other closing documents, as
counsel for NFE shall reasonably request.
(f) Consents.
--------------
WYOG shall have obtained the consent or approval of each person whose
consent or approval shall be required in connection with the transactions
contemplated hereby under any loan or credit agreement, note, mortgage,
indenture, lease or other agreement or instrument, except those for which
failure to obtain such consents and approvals would not, in the reasonable
opinion of NFE, individually or in the aggregate, have a material adverse
effect on WYOG and its subsidiaries and related entities, taken as a whole
upon the consummation of the transactions contemplated hereby.
(g) Pending Litigation.
-----------------------
There shall not be any litigation or other proceeding pending or threatened
to restrain or invalidate the transactions contemplated by this Agreement,
which, in the sole reasonable judgment of NFE, made in good faith, would
make the consummation of the Exchange imprudent. In addition, there shall
not be any other litigation or other proceeding pending or threatened
against WYOG or any WYOG Entity, the consequences of which, in the judgment
of NFE, could be materially adverse to WYOG or any WYOG Entity.
(h) No Convertible Securities Outstanding.
------------------------------------------
WYOG shall have secured the cancellation, on terms and conditions
reasonably satisfactory to NFE, of all outstanding stock purchase warrants,
and except as listed in Schedule 2.2(b), no options, rights, convertible
securities or other instruments exercisable for equity securities of WYOG
shall be outstanding.
(i) Resignation of Directors.
--------------------------------
Each director of WYOG except Xxxx Xxxxxxx shall have delivered his written
resignation as a director of WYOG effective as of the Closing Date of the
Exchange in accordance with Section 4.5.
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification Obligations of the Shareholder.
---------------------------------------------------
In addition to his obligations under Section 4.8, from and after the
Effective Time, the Shareholder shall reimburse, indemnify and hold harmless
WYOG and NFE and their directors, officers, shareholders, employees,
representatives and agents (each such person and its or his heirs, executors,
administrators, successors and assigns is referred to herein as "NFE Indemnified
Party") against and in respect of:
17
(a) Any accrued or absolute liability of or claim against the Company
(other than for taxes) existing at the date hereof that is in excess of the
actual aggregate liability of the Company for the sum of the liabilities
listed on Schedule [ ] and those reflected in the most recent balance sheet
in schedule [ ];
(b) Any and all damages, loss, deficiency, costs or expenses resulting from
any misrepresentation, breach of warranty, or nonfulfillment of any
agreement or covenant on the part of Stockholder under this Agreement
(other than one included in (a) above) or any misrepresentation in or
omission from any list, schedule, certificate, or other instrument
furnished or to be furnished to Companies pursuant to the terms of this
Agreement; and including in each case all costs and expenses of all
actions, suits, proceedings, demands, assessments and adjustments
(including specifically, but without limitation, attorneys' fees and
expenses of investigation) incident to any of the foregoing.
(c) Any and all actions, suits, claims, proceedings, investigations,
allegations, demands, assessments, audits, fines, judgments, costs and
other expenses (including without limitation reasonable legal fees and
expenses) incident to any of the foregoing or to the enforcement of this
Section 6.1
6.2 Indemnification Obligations of NFE and WYOG.
------------------------------------------------
From and after the Effective Time, NFE and WYOG jointly and severally shall
reimburse, indemnify and hold harmless the Shareholder and his representatives
and agents (each such person and its or his heirs, executors, administrators,
successors and assigns is referred to herein as a " Shareholder Indemnified
Party") against and in respect of:
(a) Any and all damages, losses, settlement payments, deficiencies,
liabilities, costs, expenses and claims suffered, sustained, incurred or
required to be paid by any Shareholder Indemnified Party because of or that
result from, relate to or arise out of the business, operations or assets
of WYOG or NFE after the Effective Time or the actions or omissions of any
officer, director, shareholder, employee or agent of WYOG or NFE after the
Effective Time; and
(b) Any and all actions, suits, claims, or legal, administrative,
arbitration, governmental or other procedures or investigation against any
Shareholder Indemnified Party that relate to the business, operations or
assets of WYOG or NFE in which the event giving rise thereto occurred after
the Effective Time or which results from or arises out of any action or
inaction after the Effective Time of WYOG or NFE or any director, officer,
employee, agent, representative of WYOG or NFE after the Effective Time;
provided, however, that the obligation of NFE and WYOG to indemnify the
Shareholder shall not extend to the note payable to American National Bank
& Trust of Casper, Wyoming, on which the Shareholder shall remain liable
and agrees to assume; and
18
(c) A breach of any representation or warranty by NFE or any NFE entity
contained herein, which breach is discovered within 2 years of the date
hereof; and
(d) Any and all actions, suits, claims, proceedings, investigations,
allegations, demands, assessments, audits, fines, judgments, costs and
other expenses (including without limitation reasonable legal fees and
expenses) incident to any of the foregoing or to the enforcement of this
Section 6.2.
6.3 Payment of Indemnification Obligations.
-------------------------------------------
Each party agrees to pay promptly to any other indemnified party the amount
of all damages, losses, settlement payments, deficiencies, liabilities, costs,
expenses, claims and other obligations to which the indemnity set forth in
Section 6.1 or 6.2 relates. If all or part of any such obligation is not paid
when due, then the indemnifying party shall also pay the indemnified party
interest on the unpaid amount of the obligation for each day from the date the
amount became due until payment in full, payable on demand, at the fluctuating
rate per annum which at all times shall be four percentage points in excess of
the "prime rate" identified in The Wall Street Journal as the base rate on
corporate loans at large U.S. money center commercial banks.
6.4 Other Remedies.
-------------------
The indemnification rights of any indemnified party under this Article VI
are independent of and in addition to such rights and remedies as such
indemnified party may have at law, in equity or otherwise for any
misrepresentation, breach of warranty or failure to fulfill any covenant or
agreement under or in connection with this Agreement, including without
limitation the right to seek specific performance, rescission or restitution,
none of which rights or remedies shall be affected or diminished hereby.
ARTICLE VII
TERMINATION AND AMENDMENT
7.1 Termination.
----------------
This Agreement may be terminated at any time prior to the Effective Time:
(a) by mutual consent of WYOG and NFE;
(b) by either WYOG or NFE if there has been a material breach of any
representation, warranty, covenant or agreement on the part of the other
set forth in this Agreement which breach has not been cured within five
business days following receipt by the breaching party of notice of such
breach, or if any permanent injunction or other order of a court or other
competent authority preventing the consummation of the Exchange shall have
become final and non-appealable;
(c) or by either WYOG or NFE if the Exchange shall not have been
consummated before February 28 , 2002.
19
7.2 Effect of Termination.
--------------------------
In the event of termination of this Agreement by either NFE or WYOG as
provided in Section 7.1, this Agreement shall forthwith become void and there
shall be no liability or obligation on the part of any party hereto except as
set forth in Section 1.4; provided that no termination shall relieve a party
from liability for breach of any terms of the Agreement. All costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses.
7.3 Amendment.
--------------
This Agreement may be amended by the parties hereto, by action taken or
authorized by their respective Boards of Directors, provided no amendment shall
be made which by law requires approval by the shareholders of any party without
such further approval. This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties hereto.
7.4 Extension; Waiver.
----------------------
At any time prior to the Effective Time, the parties hereto, by action
taken or authorized by their respective Board of Directors, may, to the extent
legally allowed, (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Survival of Representations, Warranties and Agreements.
-----------------------------------------------------------
All of the representations, warranties and covenants in this Agreement or
in any instrument delivered pursuant to this Agreement shall survive the
Effective Time for a period of two years, except for those Sections which will
have been completed by the Closing.
8.2 Notices.
------------
All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally, telecopied (which is confirmed)
or mailed by registered or certified mail (return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) If to WYOG, to
Wyoming Oil & Minerals, Inc.
000 X. Xxxxxx Xx., Xxxxx 000
Xxxxxx, XX 00000
Attention : Xxxxxxx Xxxxxx, Chairman and CEO
Facsimile No.:
with a copy to
20
Xxxxxxx & X'Xxxxx
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. X'Xxxxx, Esq.
(000) 000-0000 (tel)
and
(b) if to NFE, to
New Frontier Energy, Inc.
0000 Xxxxxxxx Xx., Xxxxx 000
Xxxxxxxx Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx, President
Facsimile No.: (000) 000-0000
with a copy to
Xxxxxxx, Xxxxxxx & Associates, P.C.
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
8.3 Interpretation.
-------------------
When a reference is made in this Agreement to Sections, such reference
shall be to a Section of this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation". The phrase "made
available" in this Agreement shall mean that the information referred to has
been made available if requested by the party to whom such information is to be
made available.
8.4 Counterparts.
-----------------
This Agreement may be executed in two or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when
two or more counterparts have been signed by each of the parties and delivered
to the other parties, it being understood that all parties need not sign the
same counterpart.
8.5 Entire Agreement; No Third Party Beneficiaries.
---------------------------------------------------
This Agreement (including the documents and the instruments referred to
herein) constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
Exchange, and is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
21
8.6 Waiver and Severability.
----------------------------
No waiver by either party of any breach or default hereof by the other
shall be deemed to be a waiver of any preceding or succeeding breach or default
hereof, and no waiver shall be operative unless the same shall be in writing.
Should any provision of this Agreement be declared invalid by a court of
competent jurisdiction, the remaining provisions hereof shall remain in full
force and effect regardless of such declaration.
8.7 Governing Law.
------------------
This Agreement shall be governed and construed in accordance with the laws
of the State of Colorado without regard to principles of conflicts of law. Each
party hereby irrevocably submits to the jurisdiction of any Colorado state court
or any federal court in the State of Colorado in respect of any suit, action or
proceeding arising out of or relating to this Agreement, and irrevocably accept
for themselves and in respect of their property, generally and unconditionally,
the jurisdiction of the aforesaid courts.
8.8 No Remedy in Certain Circumstances.
---------------------------------------
Each party agrees that, should any court or other competent authority hold
any provision of this Agreement or part hereof or thereof to be null, void or
unenforceable, or order any party to take any action inconsistent herewith or
not to take any action required herein, the other party shall not be entitled to
specific performance of such provision or part hereof or thereof or to any other
remedy, including but not limited to money damages, for breach hereof or thereof
or of any other provision of this Agreement or part hereof or thereof as a
result of such holding or order.
8.9 Publicity.
--------------
Except as otherwise required by law or the rules of the SEC, so long as
this Agreement is in effect, no party shall issue or cause the publication of
any press release or other public announcement with respect to the transactions
contemplated by this Agreement without the written consent of the other party,
which consent shall not be unreasonably withheld.
8.10 Assignment.
----------------
Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (whether by operation
of law or otherwise) without the prior written consent of the other parties.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their respective successors
and assigns.
22
IN WITNESS WHEREOF, this Agreement has been signed by the parties set forth
below as of the date set forth above.
WYOMING OIL & MINERALS, INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Xxxxxxx Xxxxxx, Chairman
and Chief Executive Officer
NEW FRONTIER ENERGY, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx, President
SHAREHOLDER:
/s/ Xxxxxxx Xxxxxx
------------------------------------
Xxxxxxx Xxxxxx
23
LIST OF SCHEDULES
Schedule 2.1(b) Options, warrants, calls, agreements or other rights to
--------------- purchase or otherwise acquire shares of the capital stock of
NFE, whether or not presently issued or outstanding.
Schedule 2.1(e) List of conflicts with other agreements.
---------------
Schedule 2.1(i) List of material adverse changes or declaration of
--------------- dividends.
Schedule 2.1(m) Properties, interests, and assets disposed of by NFE since
--------------- October 31, 2001.
Schedule 2.1(n) Contracts involving payments of more than $10,000 over the
--------------- term thereof, to which NFE is a party or may be bound and
which cannot be terminated by NFE without penalty within 30
days after written notice.
Schedule 2.1(q) Director or officer of NFE or any member of his or her
--------------- immediate family, who is a party to any Contract or other
business arrangement or relationship of any kind with NFE.
Schedule 2.2(a) List of subsidiaries of WYOG and partnerships, joint
--------------- ventures or other entities in which WYOG has an interest.
Schedule 2.2(b) Options, warrants, calls, agreements or other rights to
--------------- purchase or otherwise acquire shares of the capital stock of
WYOG, whether or not presently issued or outstanding.
Schedule 2.2(h) List of material adverse changes or declaration of
--------------- dividends.
Schedule 2.2(i) Liabilities and obligations of WYOG.
---------------
Schedule 2.2(j) A true and complete list of all security holders of WYOG.
---------------
Schedule 2.2(m) Contracts involving payments of more than $10,000 over the
--------------- term thereof, to which Company is a party or may be bound
and which cannot be terminated by Company without penalty
within 30 days after written notice.
Schedule 2.2(n) The Company's list of non-compliance with environmental
--------------- laws.
24
Agreement for Exchange and Plan of Reorganization
by and between New Frontier Energy, Inc. and
Wyoming Oil & Minerals, Inc., dated January 11, 2002
Schedule 2.1(b) Options, warrants, calls, agreements or other rights to
--------------- purchase or otherwise acquire shares of the capital stock of
NFE, whether or not presently issued or outstanding.
Options Outstanding
None.
Warrants Outstanding 10/31/01
Name Date Terms # Of Warrants
-------------------------- --------- ---------------- -----------
*XxXxx, Xxxx 9/14/00 3 yrs. @ $1.00 83,333
-------------------------- --------- ---------------- -----------
*MCM Capital 9/14/00 3 yrs. @ $1.00 16,667
Management, Inc.
-------------------------- --------- ---------------- -----------
**Xxxxxx, Xxxxxxx, XXX 4/03/01 2 yrs. @ $1.00 10,000
-------------------------- --------- ---------------- -----------
**Triune Foundation 3/15/01 2 yrs. @ $1.00 15,000
-------------------------- --------- ---------------- -----------
**Xxxxxxx Consulting 7/15/01 2 yrs. @ $1.00 11,500
-------------------------- --------- ---------------- -----------
**XxXxx, Xxxx 3/14/01 2 yrs. @ $1.00 25,000
-------------------------- --------- ---------------- -----------
**XxXxx, Xxxxxxx 3/14/01 2 yrs. @ $1.00 25,000
-------------------------- --------- ---------------- -----------
Total Warrants Outstanding 186,500
-------------------------- -----------
These warrants were issued pursuant to the terms of Bridge Loans to
(*) Skyline Resources, Inc. and (**) New Frontier Energy, Inc.
Agreement for Exchange and Plan of Reorganization
by and between New Frontier Energy, Inc. and
Wyoming Oil & Minerals, Inc., dated January 11, 2002
Schedule 2.1(e) List of conflicts with other agreements.
---------------
None.
Agreement for Exchange and Plan of Reorganization
by and between New Frontier Energy, Inc. and
Wyoming Oil & Minerals, Inc., dated January 11, 2002
Schedule 2.1(i) List of material adverse changes or declaration of
--------------- dividends.
None.
Agreement for Exchange and Plan of Reorganization
by and between New Frontier Energy, Inc. and
Wyoming Oil & Minerals, Inc., dated January 11, 2002
Schedule 2.1(m) Properties, interests, and assets disposed of by NFE since
--------------- October 31, 2001.
None.
Agreement for Exchange and Plan of Reorganization
by and between New Frontier Energy, Inc. and
Wyoming Oil & Minerals, Inc., dated January 11, 2002
Schedule 2.1(n) Contracts involving payments of more than $10,000 over the
--------------- term thereof, to which NFE is a party or may be bound and
which cannot be terminated by NFE without penalty within 30
days after written notice.
None.
Agreement for Exchange and Plan of Reorganization
by and between New Frontier Energy, Inc. and
Wyoming Oil & Minerals, Inc., dated January 11, 2002
Schedule 2.1(q) Director or officer of NFE or any member of his or her
--------------- immediate family, who is a party to any Contract or other
business arrangement or relationship of any kind with NFE.
None.
Agreement for Exchange and Plan of Reorganization
by and between New Frontier Energy, Inc. and
Wyoming Oil & Minerals, Inc., dated January 11, 2002
Schedule 2.2(a) List of subsidiaries of WYOG and partnerships, joint
--------------- ventures or other entities in which WYOG has an interest.
Subsidiaries - Wyoming Coal Corporation
Partnership - None.
Joint Ventures - None.
Agreement for Exchange and Plan of Reorganization
by and between New Frontier Energy, Inc. and
Wyoming Oil & Minerals, Inc., dated January 11, 2002
Schedule 2.2(b) Options, warrants, calls, agreements or other rights to
--------------- purchase or otherwise acquire shares of the capital stock of
WYOG, whether or not presently issued or outstanding.
Options Outstanding
Name Terms # Of Warrants
-------------------------- --------------- -------------
*Xxxxxx, Xxxxxxx 2 yrs. @ $1.00 173,000
-------------------------- --------------- -------------
*Xxxxxx, Xxxxxxx 3 yrs. @ $1.00 350,000
-------------------------- --------------- -------------
*Xxxxxx, Xxxxxxx 3 yrs. @ $1.00 300,000
-------------------------- --------------- -------------
Xxxxxxx, Xxxx 10 yrs. @ $1.00 15,000
-------------------------- --------------- -------------
Total Warrants Outstanding 838,000
-------------------------- -------------
*All of Xx. Xxxxxx options will be cancelled at the closing of the merger.
Warrants Outstanding
None.
Agreement for Exchange and Plan of Reorganization
by and between New Frontier Energy, Inc. and
Wyoming Oil & Minerals, Inc., dated January 11, 2002
Schedule 2.2(h) List of material adverse changes or declaration of
--------------- dividends.
None.
Agreement for Exchange and Plan of Reorganization
by and between New Frontier Energy, Inc. and
Wyoming Oil & Minerals, Inc., dated January 11, 2002
Schedule 2.2(i) Liabilities and obligations of WYOG.
---------------
As of 11/30/01
Notes Payable $665,375
Accounts Payable $166,829
Obligations to various regulatory agencies and mineral
owners to produce, save and market the producible oil and
gas
Agreement for Exchange and Plan of Reorganization
by and between New Frontier Energy, Inc. and
Wyoming Oil & Minerals, Inc., dated January 11, 2002
Schedule 2.2(j) A true and complete list of all security holders of WYOG.
---------------
Intentionally omitted
Agreement for Exchange and Plan of Reorganization
by and between New Frontier Energy, Inc. and
Wyoming Oil & Minerals, Inc., dated January 11, 2002
Schedule 2.2(m) Contracts involving payments of more than $10,000 over the
--------------- term thereof, to which Company is a party or may be bound
and which cannot be terminated by Company without penalty
within 30 days after written notice.
None.
Agreement for Exchange and Plan of Reorganization
by and between New Frontier Energy, Inc. and
Wyoming Oil & Minerals, Inc., dated January 11, 2002
Schedule 2.2(n) The Company's list of non-compliance with environmental
--------------- laws.
None except for the periodic testing of shut-in oil xxxxx in
Mush Creek Field, Weston County, Wyoming. At the present
time two xxxxx in Xxxx Xxxx Unit need to be plugged in 2002.
ANNEX 1
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the Agreement") by and between New Frontier
Energy, Inc. ("New Frontier"), Wyoming Oil and Minerals, Inc. ("WYOG")
(collectively, New Frontier and WYOG are referred to as the "Companies"), and
Xxxxxxx Xxxxxx ("Xxxxxx") is effective as of the 15th day of January, 2002.
RECITALS
WHEREAS, the Companies have entered into an agreement for share exchange
and plan of reorganization (the "Share Exchange") whereby, subject to
shareholder approval, WYOG shall exchange its common stock for all of the
outstanding stock of New Frontier, and New Frontier shall become a wholly owned
subsidiary of WYOG ; and
WHEREAS, WYOG is a defendant in Case No. 01 CV 66 filed by Xxxxxxxx
Petroleum Company ("Xxxxxxxx") in Moffat County, District Court (the
"Proceeding") alleging a default on payments of working interest costs, which
payments (the "Payments') were contractually assumed by Slaterdome Gas, Inc.
("Slaterdome") in an agreement for the purchase and sale of assets dated June
21, 2001 (the "Asset Purchase Agreement"). Under Slaterdome's purchase agreement
with WYOG, Slaterdome was required to make payments to Xxxxxxxx to fulfill
WYOG's obligations for its outstanding costs under an Operating Agreement with
Xxxxxxxx, and Slaterdome has defaulted on making final payments to Xxxxxxxx; and
WHEREAS, New Frontier has advised WYOG that it would not proceed with the
Share Exchange unless Xxxxxx agreed to indemnify it against certain liabilities
associated with the Proceeding; and
WHEREAS, Xxxxxx, who is the principal shareholder of WYOG and would
therefore benefit from the Share Exchange, agrees to indemnify the Companies for
all costs, expenses and legal fees incurred in connection with the Proceeding
except the costs and expenses of paying any amount of any judgment against WYOG
or any amount payable by WYOG to the other parties currently or in the future
involved in the Proceeding pursuant to any settlement arrangement.
NOW THEREFORE, in order to induce New Frontier to enter into the Share
Exchange with WYOG, and in consideration for such Share Exchange and other
valuable consideration, Xxxxxx hereby agrees to indemnify the Companies as
follows:
1. Indemnity.
-------------
Xxxxxx will indemnify the Companies, their successors or assigns, for any
Expenses (as defined below) which the Companies are or become legally obligated
to pay in connection with the Proceeding. As used in this Agreement, the term
"Proceeding" includes the Proceeding itself, as well as any other claim, action,
suit or proceeding arising from or related to the Proceeding in which either New
Frontier or WYOG is a party as plaintiff or defendant, claimant or respondent,
or otherwise, whether brought by or in the right of Xxxxxxxx or the Companies
and whether of a civil, criminal, administrative or investigative nature,
including any action against Slaterdome or Xxxxxx Xxxxx ("Salna") to collect or
enforce the obligation of those entities arising from the Asset Purchase
Agreement.
2. Expenses.
------------
As used in this Agreement, the term "Expenses" includes all costs,
expenses, actual attorneys' fees and disbursements (including expert witness
fees) and costs of attachment or similar bonds, incurred by the Companies in
connection with investigating, defending, prosecuting, being a witness or
participating in the Proceeding, and any expenses of establishing a right to
indemnification under this Agreement. "Expenses" does not include, however, any
amounts paid or payable by WYOG as part or all of a judgment against WYOG in the
Proceeding nor as part or all of any settlement amount paid or payable by WYOG
to any other parties to the Proceeding, currently or in the future, or their
assigns. The intention of this Agreement is that Xxxxxx shall pay the costs of
defending WYOG in the Proceeding, such as the amounts charged by attorneys to
WYOG with respect to the Proceeding; but that Xxxxxx shall not be obligated to
pay any amounts for which WYOG is found or agrees to be liable to any of the
other parties to the Proceeding by way of judgment or settlement.
3. Enforcement.
---------------
If a claim or request under this Agreement is not paid by Xxxxxx, or on his
behalf, within thirty days after a written claim or request has been made by New
Frontier or WYOG, either entity may at any time thereafter bring suit against
Xxxxxx to recover the unpaid amount of the claim or request and if successful in
whole or in part, the Companies shall be entitled to also be paid the attorneys
fees, costs and expenses of prosecuting such suit.
4. Subrogation.
---------------
In the event of payment under this Agreement, Xxxxxx shall be subrogated to
the extent of such payment to all of the rights of recovery of the Companies,
who shall execute all papers required and shall do everything that may be
necessary to secure such rights, including the execution of such documents
necessary to enable Xxxxxx effectively to bring suit to enforce such rights.
5. Exclusions.
--------------
Xxxxxx shall not be liable under the Agreement to make any payment in
connection with any claim made against the Companies to the extent that the
Companies are actually paid by Slaterdome or any other source for costs and
expenses resulting from the Proceeding.
6. Indemnification of Expenses of Successful Party.
---------------------------------------------------
Notwithstanding any other provision of this Agreement, to the extent that
the Companies have been successful on the merits or otherwise in defense of the
Proceeding or in defense of any claim, issue or matter therein, including
dismissal without prejudice, the Companies shall be indemnified against any and
all Expenses incurred in connection therewith.
7. Representations of Xxxxxx.
-----------------------------
In order to induce New Frontier to enter into this Agreement and proceed
with the Share Exchange, Xxxxxx represents that, to the best of Xxxxxx'x
knowledge, the obligations of Slaterdome and Salna to make the Payments as set
forth in the Asset Purchase Agreement are in full force and effect, have not
been altered, repealed, waived or negated in any manner and that, to the best of
Xxxxxx'x knowledge, Slaterdome has no defenses to making those payments.
2
8. Advance of Expenses.
-----------------------
Expenses reasonably and necessarily incurred by the Companies in connection
with the Proceeding shall be paid by Xxxxxx in advance upon request of the
Companies that Xxxxxx pay such Expenses.
9. Notice and Defense of Claim.
-------------------------------
a) The Companies shall give to Xxxxxx notice in writing as soon as
practicable of any claim or action made against them for which indemnity will or
could be sought under this Agreement; provided that the Companies need not give
notice more than once as to any such claim or action. Notice to Xxxxxx shall be
given at his principal office or such other address as he shall provide to the
Companies in writing. In addition, the Companies shall give Xxxxxx such
information and cooperation as he may reasonably require and as shall be within
the Companies' power.
b) With respect to any such claim or action: Xxxxxx will be entitled to
participate therein at his own expense; and except as otherwise provided below,
to the extent that he may wish, Xxxxxx will be entitled to assume the defense
thereof, with counsel reasonably satisfactory to Companies. After notice from
Xxxxxx to Companies, given within a reasonable time, of his election so to
assume the defense thereof, Xxxxxx will not be liable to Companies under this
Agreement for any legal or other expenses subsequently incurred by Companies in
connection with the defense of such claim or action except as otherwise provided
below. Companies shall have the right to employ their own counsel in such claim
or action but the fees and expenses of such counsel incurred after notice from
Xxxxxx of his assumption of the defense thereof shall be at the expense of the
Companies unless (i) the employment of counsel by Companies has been authorized
by Xxxxxx, or (ii) Companies shall have obtained the written opinion of
reputable counsel with expertise in such matters that there may be one or more
defenses available to Companies that could reasonably be expected to result in a
conflict of interest between Xxxxxx and Companies in the conduct of the defense
of such action, in each of which cases the actual fees and expenses of
Companies' counsel shall be at the expense of Xxxxxx. Xxxxxx shall not be
entitled to assume the defense of any claim or action brought by or on behalf of
Xxxxxx or that is the subject of the opinion provided by Companies under clause
(ii) above.
c) In the event Xxxxxx does not assume the defense of any such claim or
action, Companies and Xxxxxx shall cooperate in the defense of such action such
that all decisions are mutually agreed upon, and Companies shall not make any
material decisions with regard to any such claim or action without the previous
consent of Xxxxxx, which shall not be unreasonably withheld.
10. Counterparts.
-----------------
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one instrument.
11. Governing Law.
------------------
This Agreement shall be governed by and construed in accordance with
Colorado law without giving effect to the principles of conflicts of laws.
3
12. Amendments; Waivers.
------------------------
No supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by both of the parties hereto. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
13. Binding Effect.
-------------------
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by both of the parties hereto and their respective successors,
assignees (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business and/or
assets of any party), heirs, executors personal and legal representatives.
14. Severability.
-----------------
If any provision of this Agreement (including any provision within a single
section, paragraph or sentence) is held by a court of competent jurisdiction to
be invalid, void or otherwise unenforceable in any respect, the validity and
enforceability of any such provision in every other respect and of the remaining
provisions of this Agreement shall not be in any way impaired and shall remain
enforceable to the full extent permitted by law.
15. Notices.
------------
All notices, requests, demands and other communications which are required
or may be given under this Agreement shall be in writing and shall be deemed to
have been duly given when delivered in person (by express courier or otherwise),
by telecopier or three days after being deposited in the United States mail,
certified mail, return receipt requested, first class postage prepaid, as
follows:
If to Xxxxxx: X.X. Xxx 00000
Xxxxxxxx Xxxxxxx, XX 00000
If to Companies: New Frontier Energy, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Wyoming Oil and Minerals, Inc.
000 X. Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and signed as of the day and year first above written.
COMPANIES:
NEW FRONTIER ENERGY, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------
Xxxxx X. Xxxxx, President
WYOMING OIL AND MINERALS, INC.
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Xxxxxxx Xxxxxx, Chairman
and Chief Executive Officer
XXXXXX:
/s/ Xxxxxxx Xxxxxx
----------------------------
Xxxxxxx Xxxxxx, individually
5
