EXHIBIT 2.1
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REORGANIZATION PLAN
THIS REORGANIZATION PLAN dated as of the 30th day of September, 1996, among
GDC Holdings Corporation ("Holdings"), and TVIES, Inc. ("TVIES") and Xxxxxxxx
Xxxxxxxx (such person being hereinafter individually referred to as
"Stockholder").
WITNESSETH
WHEREAS, the parties hereto desire that stock of Holdings parent, DK
Industries, Inc. (DK) be exchanged for TVIES stock on the date and at the time
herein provided (the "Effective Date"); and
WHEREAS, the parties hereto desire to set forth certain conditions,
representations, warranties and covenants made by each to the other as an
inducement to the exchange;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained, the parties hereby
agree as follows:
ARTICLE I
EXCHANGE
SECTION 1.1 EXCHANGE
(a) Subject to the terms and conditions herein on September 30, 1996, at
Denver, Colorado, or at such other time as Holdings and Stockholder shall
designate, the Stockholder shall endorse and deliver to Holdings 1,000 shares of
TVIES stock.
(b) On the same date Holdings shall deliver to the Stockholder Thirty-
three Thousand Three Hundred Thirty-three (33,333) shares of DK stock.
SECTION 1.2 RIGHTS AND PREFERENCES OF DK STOCK
(a) The rights and preferences of DK Stock transferred to the Stockholder
shall be as follows: voting, common stock without preference, without preemptive
right and without the right of cumulative voting.
(b) DK shall have received from the shareholder of TVIES completed and
executed Subscription Documents and shall have concluded, based upon review of
such documents by DK and its counsel, that the transaction may be consummated
and that DK may issue the shares of its common stock in exchange for the shares
of GDC Holdings common stock as contemplated herein without the requirement that
the shares of common stock of DK to be issued be registered under the Securities
Act. The Subscription documents shall contain customary representations from the
persons executing such documents, including but not limited to a representation
that such person understands and acknowledges that the securities to be acquired
by her or him are "restricted" securities, as that
term is defined in Rule 144 promulgated under the Securities Act of 1933,
amended, and that the securities may not be sold, transferred, assigned,
hypothecated, or otherwise disposed of unless such securities are registered or
unless an exemption from such registration requirements is available.
(c) Holdings agrees that the thirty-three thousand three hundred thirty-
three shares of DK stock will be granted piggy-back registration rights for
registration in a future registration statement to be filed by DK.
ARTICLE II
TVIES' AND STOCKHOLDER'S REPRESENTATIONS
SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF TVIES
TVIES and Stockholder represent and warrant to Holdings as of the date
hereof and on the Closing Date as follows:
(a) STOCKHOLDERS AND STOCK. The authorized capital stock of TVIES, Inc.
consists solely of 1,000 shares of common stock, with $0.01 par value, of which
1,000 shares are issued and outstanding and registered in the name of Xxxxxxxx
Xxxxxxxx.
(b) GOOD STANDING. TVIES is a corporation duly organized and validly
existing in good standing under the laws of the State of Texas, and it is duly
authorized, qualified and licensed under all applicable laws, regulations,
ordinances and orders of public authorities to carry on its business in the
places and in the manner as now conducted.
(c) FINANCIAL STATEMENTS. TVIES has delivered to Holdings copies of the
following financial statements of TVIES.
(1) Balance Sheet as of September 30, 1996 (hereinafter referred to as
"TVIES' Balance Sheet Date");
(2) Profit and Loss Statement for the period ended on TVIES' Balance
Sheet
(3) Balance Sheets and Profit and Loss Statements and Statements of
source and application of funds from August 1, 1995 to September 30, 1996.
(4) TVIES represents that TVIES was, prior to August 17, 1995, a
wholly owned, financially consolidated subsidiary of Tuboscope Vetco
International, Inc., and that there are no discrete financial statements in
regard to TVIES prior to August 1, 1995, and that there were no assets, real or
personal, owned by TVIES other than those described in the agreements referred
to in Schedule 2.1(c) hereto and TVIES had no liabilities, contingent or
otherwise on that date.
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Except as and only to the extent expressly disclosed on a statement signed by
Stockholder and identified as being delivered pursuant to this Article II, such
financial statements have been prepared in accordance with generally accepted
accounting principles, applied on a consistent basis throughout the periods
indicated. Except as and only to the extent expressly disclosed on a statement
signed by Stockholder and identified as being delivered pursuant to this Article
II, TVIES' Balance Sheets present fairly the financial condition of TVIES as of
the dates indicated thereon and such Profit and Loss Statements present fairly
the results of operations of TVIES for the periods indicated thereon.
(5) Stockholder shall prior to closing deliver to Holdings, an
assignment acceptable to Holdings, transferring all right, title and interest in
all property and property rights real, personal or mixed, which passed to
Stockholder by virtue, under and through the agreements referred to in Schedule
2.1(c). Holdings acknowledges the obligations of Tuboscope Vetco International
in Schedule 2.1(c) and indemnifies Stockholder for obligations related thereto.
(d) TITLE. To the knowledge and belief of Stockholder and TVIES, each has
good and marketable title to all properties, assets, patents, patent licenses,
technology, technology licenses, and leasehold estates, real and personal,
including those described in the agreements referred to in Schedule 2.1(c),
subject to no reservation of interest, mortgage, pledge, lien, conditional sales
or rental agreement, encumbrance or charge, except as reserved to Tuboscope
Vetco International, Inc. in the documents referred to in Schedule 2.1(c),
copies of which documents have been provided to Holdings.
(e) OTHER.
(1) To the best of the knowledge of Stockholder and TVIES, there is no
litigation, arbitration or other governmental or private actions, suits,
proceedings or claims concluded, pending or threatened against the Stockholder
or TVIES which may have a material adverse effect upon Stockholder's or TVIES'
ability or power to make this Reorganization Plan valid, binding or enforceable,
or which have a material adverse effect on the assets or financial conditions of
TVIES, except as reflected in Schedule 2.1(e)(1).
(2) Except as set forth as Exhibit 2.1(e)(1) hereto:
(a) Neither the Seller nor the Company has received, any actual
order, notice, or other communication from (i) any Governmental Body or private
citizen acting in the public interest, or (ii) the current or prior owner or
operator of any Facilities, of any actual or potential violation or failure to
comply with any Environmental Law, or of any actual or Threatened obligation to
undertake or bear the cost of any Environmental, Health, and Safety Liabilities
(including any remedial action of any nature) with respect to any of the
Facilities or any other properties or assets (whether real, personal, or mixed)
in which Sellers or the Company has had an interest, or with respect to any
property or Facilities at or to which Hazardous Materials were generated,
manufactured, refined, transferred, imported, used, or processed by Sellers or
the Company, or from which Hazardous Materials have been transported, treated,
stored, handled, transferred, disposed,
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recycled or received.
(b) There are no pending claims resulting from any Environmental,
Health, and Safety liabilities or arising under or pursuant to any Environmental
Law, with respect to or affecting any of the Facilities or any other properties
and assets (whether real, personal, or mixed) in which Seller or the Company has
or had an interest.
(3) The process and units described in Schedule 2.1(c) shall be
demonstrated, to the satisfaction of Holdings, to fully meet the performance
criteria.
(4) The parties acknowledge that as of June 1, 1996, and subsequent
thereto, Holdings' subsidiary, GDC Enviro-Solutions, Inc. ("Enviro"), pursuant
to a promissory note payable to Enviro, funded the obligation for TVIES' entire
payroll, funded the obligations of the Cape Fear/OHM contract, leased
essentially all of the assets of TVIES to be used in performance of the Cape
Fear/OHM contract, funded TVIES' obligations to modify the leased equipment and
has paid on behalf of TVIES, its obligations in regard to marketing the TVIES
technology, and that in effect, the acquisition of TVIES as outlined herein, was
accomplished and effective as of September 30, 1996.
ARTICLE III
COVENANTS OF STOCKHOLDER
SECTION 3.1 COVENANTS OF STOCKHOLDER PRIOR TO CLOSING
At the Closing Date:
(a) The Stockholder will cooperate with Holdings, its representatives and
counsel in the preparation of any documents or other material which may be
required in connection with documents required by the state and federal
securities laws and regulations, or in connection with any other documents or
materials required by any governmental agency. Holdings will cause all
information obtained in connection with the negotiation and performance of this
Reorganization Plan to be treated as confidential (except such information as
Holdings may be required to disclose to the Securities and Exchange Commission
or any other governmental agency) and will not use, and will not knowingly
permit others to use, any such information in a manner detrimental to
Stockholder or TVIES.
(b) Stockholder represents that except as set forth in financial statements
provided under paragraph 2.1(c), TVIES has not:
(1) Entered into any contract or commitment or incur or agree to incur
any liability or make any capital expenditures;
(2) Increased the compensation payable or to become payable to any
Officer, employee or agent, or made any bonus payment to any such person.
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(3) Created, assumed or permitted to exist any mortgage, pledge or
other lien or encumbrance upon any assets or properties.
(4) Sold, assigned, leased or otherwise transferred or disposed of any
property or equipment except in the normal course of business; or
(5) Merged or consolidated or agreed to merge or consolidate with or
into any other Corporation.
ARTICLE IV
REPRESENTATIONS OF HOLDINGS
SECTION 4.1 REPRESENTATIONS OF HOLDINGS
(a) Holdings represents and warrants to TVIES and to the Stockholder as of
the Effective Date, as follows: Holdings has delivered to Stockholder DK's
consolidated financial statements and the related notes thereto for the fiscal
year 1995, together with its Form 10-QSB for the quarterly period ended June 30,
1996, its Form 8-K(A) dated May 31, 1996 and its Form 8-K dated September 25,
1996. The financial statements and the related notes thereto present fairly the
consolidated financial condition of DK as of the dates indicated and the results
of its consolidated operations for the periods then ended.
(b) DK is a corporation duly organized and validly existing in good
standing under the laws of the State of Colorado, and is registered pursuant to
Section 12g of the Securities Exchange Act of 1934 and is current in all filings
thereunder.
ARTICLE V
GENERAL
SECTION 5.1 ADDITIONAL INSTRUMENTS
The parties hereto shall deliver or cause to be delivered on the Effective
Date, and at such other times and places as shall be reasonably agreed on, such
additional instruments as any party may reasonably request for the purpose of
carrying out this Reorganization Plan, it being the express intent of the
Stockholder that the transaction described hereunder shall constitute a tax free
reorganization under the Internal Revenue Code.
SECTION 5.2 ENTIRE AGREEMENT
This Reorganization Plan (including the schedules and annexes hereto) and
the documents delivered pursuant hereto constitute the entire agreement and
understanding between the parties hereto and supersede any prior agreement and
understanding relating to the subject matter of this Reorganization Plan. This
Reorganization Plan may be modified or amended only by a duly
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authorized written instrument executed by the parties hereto.
SECTION 5.3 COUNTERPARTS
This Reorganization Plan may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument. It shall not be
necessary that any single counterpart hereof be executed by all parties hereto
so long as at least one counterpart is executed by each party.
SECTION 5.4 NOTICES
Any notice or communication required or permitted hereunder shall be
sufficiently given if sent by first class mail, postage prepaid:
(a) To Holdings at
GDC Holdings Corporation
0000 Xxxxxxx Xx., Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
(b) To Stockholder at
Xxxxxxxx Xxxxxxxx
0000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
(c) To TVIES at
TVIES, Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
SECTION 5.5 SURVIVORSHIP
All warranties, covenants, representations and guarantees shall survive the
closing and execution of the documents contemplated by this Reorganization Plan.
The parties hereto in executing, and in carrying out the provisions of this
Reorganization Plan are relying solely on the representations, warranties and
agreements contained in this Reorganization Plan or in any writing delivered
pursuant to provisions of this Reorganization Plan or at the closing of the
transactions herein provided for and not upon any representation, warranty,
agreement, promise or information, written or oral, made by any person other
than as specifically set forth herein or therein.
SECTION 5.6 BROKERS
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The parties hereto represent to each other that no broker has been employed
in connection with the transactions hereunder. Each party agrees to indemnify
the other(s) against all loss, cost, damage or expense arising out of claims for
fees or commissions of brokers employed or alleged to have been employed by such
party. This indemnity agreement is not subject to, and liability under this
Section shall not be reduced by any limitation on any parties liability for
warranties representations set forth elsewhere in this Agreement.
SECTION 5.7
Each party to the Reorganization Plan covenants and represents that he or
it have sought and relied upon their own counsel and experts, and no party shall
have liability to any other party for or on account of the tax treatment of the
transaction for state or federal tax purposes.
SECTION 5.8 LAW
This Reorganization Plan shall be construed in accordance with the laws of
the State of Colorado.
IN WITNESS WHEREOF, the parties have executed this Reorganization Plan as
of the day and year first above written.
TVIES, Inc
/s/ Xxxxxxxx Xxxxxxxx
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Xxxxxxxx Xxxxxxxx, Stockholder
by /s/ Xxxxxxxx Xxxxxxxx
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President GDC Holdings Corporation
by /s/ Xxxxx Xxxxxx
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President
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SCHEDULE 2.1(c)
1. EQUIPMENT RENTAL AND AGREEMENT
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TUBESCOPE VETCO INTERNATIONAL, INC.
AND
XXXXXXXX XXXXXXXX AND TVIES, INC.
DATED AUGUST 17, 1995
2. AGREEMENT
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BETWEEN TUBOSCOPE VETCO INTERNATIONAL INC.
AND
TVIES, INC. AND XXXXXXXX XXXXXXXX
DATED AUGUST 1, 1995
SCHEDULE 2.1(e)(1)
LITIGATION OR CLAIMS, ASSERTED, UNASSERTED OR POTENTIAL
NONE
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PROMISSORY NOTE
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$1,298,729 U.S. Date: June 1, 1996
Baton Rouge, Louisiana
FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the order
GDC Enviro-Solutions, Inc. of Baton Rouge, Louisiana, or such other place as the
holder may designate in writing, the principal sum of One Million Two Hundred
Ninety-eight Thousand Seven Hundred Twenty-nine Dollars ($1,298,729,000) in
lawful money of the United States and all subsequent advances made, expenditures
authorized and additional payments made under this Note, each of which shall be
added to the principal of this Note, with interest on the unpaid balance, until
paid, at the rate of ten percent (10%) per annum. The unpaid balance of said sum
together with interest at the rate aforesaid shall be payable as follows:
(a) the entire principal sum together with accrued interest shall be paid
in full on or before the 1st day of June, 1997.
It is agreed that if this Note is not paid when due or declared due
hereunder, the entire principal and accrued interest thereon shall draw interest
at the rate of fifteen percent (15%) per annum, and that failure to make any
payment of principal or interest when due, shall cause the whole Note to become
due at once, or the interest to be counted as principal, at the option of the
holder of the Note. The maker, guarantor, and endorser hereof severally waives
presentment for payment, protest, notice of non-payment and of protest, and
agrees to any extension of time of payment and partial payments before, at or
after maturity and if this Note or interest thereon is not paid when due, or
suit is brought, agrees to pay all reasonable costs of collection, including
reasonable attorney's fees to be added by the Court, to the costs of collection.
This Note is null and void and Borrower shall have no obligation under the
terms of this Note in the event that the "Reorganization Plan" dated as of
September 30, 1996 by and between GDC Holdings Corporation, TVIES, Inc. and
Xxxxxxxx Xxxxxxxx is not completed and GDC Holdings Corporation does not
exchange DK Industries, Inc. stock for TVIES, Inc. stock.
The Borrower agrees that this note is to be interpreted under the laws of
the State of Louisiana, and any action brought in regard to the obligation
evidenced by this Note shall be brought in the District Court in and for Parish
of East Baton Rouge, Louisiana.
BORROWER:
TVIES, INC.
By /s/ Xxxxxxxx Xxxxxxxx
--------------------------------
ASSIGNMENT
Agreement made this ___ day of July 1996, between TVIES, Inc., ("TVIES")
and Xxxxxxxx Xxxxxxxx ("Karlsson").
1. Karlsson, TVIES' sole shareholder, and GDC Holdings Corporation have
entered into an agreement, pursuant to which Karlsson has agreed to sell all of
the TVIES issued and outstanding stock to GDC Holdings Corporation, on the terms
and conditions set forth in that agreement, and
2. Pursuant to certain agreements which are attached hereto as Exhibits A & B,
Karlsson was assigned certain rights, hereafter referred to as "Technology",
which Technology, together with any technology, trade secrets, process,
invention device or other intellectual property in regard to the Technology, in
which Karlsson or his affiliates have acquired an interest from the invention of
the Technology to the date of this Agreement to Assign Contract hereof, and
Karlsson hereby assigns all of his rights in the Technology, now held or
hereafter acquired.
3. Subsequent to the execution of this agreement, Karlsson shall execute any
document reasonably required by Holdings and /s/ Xxxxxxxx Xxxxxxxx
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Xxxxxxxx Xxxxxxxx
By: /s/ Xxxxxxxx Xxxxxxxx
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Title: President
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EQUIPMENT RENTAL
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AND AGREEMENT
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THIS AGREEMENT is made this the 17th day of August, 1995 (hereinafter the
"Effective Date") and by and between Tuboscope Vetco International Inc., a Texas
corporation having its principal office at 0000 Xxxxxx Xxxx, Xxxxxxx, Xxxxx
00000 (hereinafter "TVI") and Xxxxxxxx Xxxxxxxx, an individual who resides at
0000 Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxx 00000 hereinafter "KARLSSON") and TVIES,
Inc., a Texas corporation with offices currently located at 0000 Xxxxxx Xxxx,
Xxxxxxx Xxxxx 00000 (hereinafter "TVIES"). TVI, TVIES and KARLSSON are
hereinafter sometimes collectively referred to as the "Parties".
RECITALS
WHEREAS, TVI is the owner of all right, title and interest in and to certain
equipment described in Appendix A attached hereto (hereinafter the "EQUIPMENT");
and
WHEREAS, KARLSSON desires to lease the EQUIPMENT from TVI and TVI desires to
lease the EQUIPMENT to KARLSSON; and
WHEREAS, TVI is the owner of all right, title and interest in and to certain
patents, and has interests in certain trademarks and service marks ("MARKS");
and
WHEREAS, KARLSSON desires to use said patents, trademarks and service marks and
TVI desires to grant to KARLSSON a license for the use of said patents, and a
period of transition for the MARKS.
NOW THEREFORE, in consideration of the mutual covenants and promises contained
herein and other good and valuable consideration as more specifically set forth
herein, the adequacy and sufficiency of which is hereby specifically
acknowledged and agreed, the Parties hereto agree as follows:
ARTICLE 1
EQUIPMENT LEASE
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1.1 TVI hereby agrees to lease the EQUIPMENT, described in Appendix A, to
KARLSSON and TVIES, and KARLSSON and TVIES agree to lease such EQUIPMENT
from TVI for the term of this Agreement.
1.2 At such time that KARLSSON and TVIES have met all obligations under this
Agreement, including the payment, in full, of all monies due under Article
4, KARLSSON and TVIES shall have the option to purchase all rights and
title to the EQUIPMENT for the consideration of One Dollar and No Cents
($1.00).
1.3 Except as otherwise provided in Section 4.1 if, at the termination of this
Agreement, KARLSSON and TVIES have not met all of the obligations,
including the payment of all monies due under Article 4, then there shall
be no such option, and all such EQUIPMENT shall be immediately returned to
TVI at its Houston Xxxxxx Road facility or such other facility as TVI may
designate.
1.4 TVI hereby represents and warrants to KARLSSON and TVIES that TVI has good
and valid title to the EQUIPMENT and that none of the EQUIPMENT is subject
to any liens or other encumbrances. TVI agrees to hold harmless, defend,
and indemnify KARLSSON and TVIES from and against any and all liens or
encumbrances associated with the EQUIPMENT.
ARTICLE 2
LICENSE OF PATENTS
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2.1 Subject to the terms and conditions of this Agreement, TVI grants to
KARLSSON and TVIES, and KARLSSON and TVIES accept from TVI an exclusive
(except for TVI'S retained rights), non-transferable license to make, have
made, use, and sell apparatus under the following patents:
(i) U.S. Patent No. 5,290,456
(ii) U.S. Patent No. 5,368,411
(iii) U.S. Patent No. 5,302,287
(iv) U.S. Patent No. 5,265,978
(v) U.S. Patent No. 5,288,330
(hereinafter collectively the "PATENTS")(the term "PATENTS" shall expressly
include any attendant know-how associated with them) in the conduct of TVIES's
business; and under any re-issues or extensions of any of said PATENTS; and
under any foreign patent applications or patents. Provided however, TVI
expressly reserves unto itself, including its parent, affiliates and
subsidiaries, all rights in and to the PATENTS, the right to use the PATENTS in
its businesses, and the right to make, have made and use the PATENTS provided
that TVI shall not use the PATENTS in direct competition with KARLSSON or TVIES
for a period of five (5) years from the Effective Date. However, in the event
KARLSSON and TVIES meet all obligations under this Agreement and purchase the
PATENTS pursuant to Section 2.5 and Article 4, then TVI will not engage in any
direct competition with KARLSSON and TVIES for the life of the PATENTS. For
purposes of this Section, direct competition is defined as any business of soil
washing using the technology embodied under the PATENTS. Provided further that
use of the PATENTS by TVI for its own account shall not be deemed as direct
competition for purposes of this restriction.
2.2 The rights granted herein to KARLSSON and TVIES may be extended and sub-
licensed to wholly-owned subsidiaries of TVIES provided that each such
subsidiary to which rights are extended shall agree in writing to abide by
all of the terms and conditions of this Agreement before being given access
to any of the PATENTS, and KARLSSON and/or TVIES shall provide TVI with a
copy of each such agreement promptly after its execution. It is understood
and agreed that KARLSSON and TVIES shall remain responsible for (i) the
payment of all license fees associated with any use of the PATENTS by any
of its subsidiaries or sub-licensees and (ii) any breach of any term of
this Agreement by any of TVIES' subsidiaries or sub-licensees.
2.3 KARLSSON and TVIES agree that should KARLSSON or TVIES develop any
improvements in the PATENTS, it will promptly furnish a generalized
description of such improvements to TVI upon commercial reduction to
practice and, upon TVI'S written request, furnish details of such
improvements and grant to TVI non-exclusive rights and licenses to make,
have made and use such improvements on the same terms granted to KARLSSON
and TVIES under this Agreement, provided that TVI does not use such
improvements in direct competition with KARLSSON or TVIES.
2.4 In the event that this Agreement is terminated, for any reason, prior to
the five (5) year expiration, KARLSSON and TVIES agree that TVI shall have,
and do hereby grant to TVI an irrevocable, royalty free, non-exclusive
right and license to use any such improvements or enhancements made to the
PATENTS whether or not those improvements or enhancements are patented.
2.5 At such time that KARLSSON and TVIES have met all obligations under this
Agreement, including payment in full of all monies due under Article 4,
KARLSSON and TVIES shall have the option to purchase all right (except for
TVI's retained rights) and title to the PATENTS for the consideration of
One Dollar and No Cents ($1.00). If KARLSSON and TVIES have made payment in
full under this Section 2.5, then TVI shall retain an exclusive, royalty
free, paid up license to make, have made, and use the PATENTS as set forth
in Sections 2.1, 2.3 and 2.4.
2.6 TVI hereby represents and warrants to KARLSSON and TVIES that TVI has good
and valid title to the PATENTS and that none of the PATENTS are subject to
any liens or other encumbrances. TVI also represents and warrants that to
the best of its knowledge, use of the PATENTS will not constitute an
infringement of any patent or registered design. TVI agrees to defend, hold
harmless, and indemnify KARLSSON AND TVIES from and against any and all
claims, demands, or lawsuits alleging patent infringement on the PATENTS
described under this Article.
ARTICLE 3
USE OF TRADEMARKS AND SERVICE MARKS
-----------------------------------
3.1 KARLSSON and TVIES acknowledge that TVI either owns or has the right to use
the following marks:
(i) "TUBOSCOPE"
(ii) "VETCO"
(iii) "TUBOSCOPE VETCO INTERNATIONAL"
or any colorable imitations or variations thereof (hereinafter collectively
the "MARKS") as trademarks or service marks.
3.2 TVI hereby grants to KARLSSON and TVIES the right to use the MARKS as
trademarks and service marks in connection with the sale or offering for
sale or lease of any goods or the rendering of any services pursuant to the
provisions of this Agreement.
3.3 Any use of the MARKS by KARLSSON or TVIES shall inure to the benefit of
TVI. Neither KARLSSON nor TVIES shall assert any claim of right, title, or
ownership therein or the goodwill represented thereby other than the rights
granted by this Agreement.
3.4 Unless otherwise waived in writing by TVI, any use of the MARKS shall also
contain a disclaimer as follows:
"TVIES Inc. and/or Tuboscope Vetco International Environmental Services
Inc. is an independent company and not affiliated with Tuboscope Vetco
International Inc."
3.5 Notwithstanding the foregoing, all rights granted under this Article 3
expressly expire six (6) months from the date hereof unless extended by
written mutual agreement by the parties to this Agreement. It is expressly
understood and agreed to by the Parties that the rights granted under this
Article 3 are for transitional purposes only.
3.6 Upon the termination of the rights granted in this Article 3 for any
reason, the provisions of Paragraph 3.1 of this License Agreement shall
nevertheless continue in full force and effect and KARLSSON and TVIES shall
thereafter refrain from any use of the MARKS, any confusingly similar xxxx
or any xxxx which constitutes any variation thereof for so long as TVI, its
licensees or assigns, shall continue to use the MARKS.
3.7 All use of the MARKS by KARLSSON or TVIES shall be subject to review and
approval by TVI. KARLSSON and TVIES shall permit TVI, upon reasonable
notice, to inspect any apparatus, parts or equipment made by KARLSSON or
TVIES under the MARKS and to review all advertising material using the
MARKS distributed by KARLSSON or TVIES.
3.8 It is expressly understood and agreed that KARLSSON or TVIES may do
business as Tuboscope Vetco International Environmental Services Inc., but
if KARLSSON or TVIES decide to do business under that name, they will file
a "dba" statement in any state, county, or otherwise appropriate office in
which they so engage in business. This right to do business under that name
expressly expires six (6) months from the date hereof unless extended by
written mutual agreement by the parties. It is expressly understood and
agreed to by the Parties that the rights granted under this Article 3 are
for transitional purposes only.
3.9 KARLSSON and TVIES hereby agree and acknowledge that the MARKS, while
registered in many parts of the world, including the United States, are
"Worldwide Marks" and KARLSSON and TVIES agree that any rights granted
under this Article 3 expressly expire six (6) months from the Effective
Date including any use of the MARKS worldwide.
ARTICLE 4
LICENSE FEES, LEASE PAYMENTS AND OTHER CONSIDERATION
----------------------------------------------------
4.1 KARLSSON and/or TVIES shall pay TVI, as consideration for all covenants,
licenses, rights to use, and leases under this Agreement, the sum of One
Million Eighty Thousand Dollars and No Cents ($1,080,000.00). Such sum
shall be paid as follows:
(a) Quarterly payments equal to seven percent (7%) of the Gross Revenue
for each quarter of TVIES and its subsidiaries throughout the term
of this Agreement up to a maximum aggregate Of $l,080,000.00. The
quarterly payments shall be made for revenues actually received by
KARLSSON and/or TVIES or by its successors, assigns or the like.
(b) At such time as the full amount ($l,080,000.00) has been paid to
TVI, KARLSSON and/or TVIES shall then immediately have the option to
acquire all rights and title to the EQUIPMENT as set forth in
Article 1 of this Agreement. KARLSSON and/or TVIES shall at such
time also have the option to acquire all rights (except for TVI's
reserved rights) and title to the PATENTS as set forth in Article 2
of this Agreement.
(c) If at the end of the five (5) year period the total amount
($1,080,000.00) has not been paid, KARLSSON and/or TVIES may make a
final lumpsum payment equal to the remaining unpaid balance. If such
a payment is not made at the expiration of this Agreement, all
EQUIPMENT, as described in Appendix A, shall be immediately
returned, and all rights to the PATENTS granted to KARLSSON and/or
TVIES under this Agreement shall automatically terminate and revert
to TVI. TVI shall be free of any restrictions with respect to the
PATENTS and MARKS.
4.2 The above referenced quarterly payments shall be due and payable within
fifteen (15) days after the end of each calendar quarter commencing with
the quarter during which the Effective Date first takes place.
ARTICLE 5
DISCLAIMERS
-----------
5.1 TVI MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE, WITH RESPECT TO THE TECHNOLOGY (INCLUDING BUT NOT
LIMITED TO THE PATENTS AND KNOW-HOW) PROVIDED BY TVI PURSUANT TO THIS
AGREEMENT.
5.2 IN NO EVENT SHALL TVI, ITS OFFICERS, AGENTS, EMPLOYEES, OR INSURERS BE
LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY THEORY OF
TORT, CONTRACT, STRICT LIABILITY. OR OTHER LEGAL OR EQUITABLE THEORY FOR
LOST PROFITS OR INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES.
ARTICLE 6
LIMITATIONS OF LIABILITY
------------------------
6.1 TVI shall not be liable for any delay in or failure of performance due to
any cause or condition beyond TVI'S reasonable control, whether foreseeable
or not.
6.2 TVI's entire liability for damages for any cause whatsoever, and regardless
of the form of action, shall be limited to KARLSSON's or TVIES's actual
direct damages not to exceed the amount paid to TVI under this Agreement.
ARTICLE 7
INDEMNITY
---------
7.1 KARLSSON and TVIES shall indemnify, save and hold harmless TVI, its
officers and directors, all former officers and directors, and all current
and former officers and directors of TVIES from and against any and all
costs, losses, liabilities, damages, lawsuits, demands, assessments, fines,
deficiencies, claims and reasonable expenses, including without limitation,
interest, penalties, attorneys', accountants' and expert witness fees and
all amounts paid in investigation, defense or settlement of any of the
foregoing (collectively referred to as "Claims"), incurred in connection
with or arising out of or resulting from or incident to anything owing from
TVIES's (including any name under which TVIES has operated) inception
forward, including but not limited to any and all claims for the negligence
or gross negligence of TVIES or its employees and any and all claims
arising out of any environmental matter.
ARTICLE 8
OBLIGATIONS OF KARLSSON and TVIES
---------------------------------
8.1 KARLSSON, TVIES and any sub-licensees shall exercise reasonable efforts to
promote commercialization of the PATENTS.
8.2 All payments due under this Agreement shall be made in accordance with
Article 4. Each such payment shall be accompanied by a statement of
information setting forth the total amount of billed charges including all
rebill or buy-out charges, if any.
8.3 KARLSSON and TVIES agree to keep true and accurate records of operations
conducted under this Agreement and to display such records to any agent,
consultant, or representative of TVI at KARLSSON's or TVIES's place of
business during normal business hours.
ARTICLE 9
TERM AND TERMINATION
--------------------
9.1 Unless otherwise extended in writing, and except for those provisions which
by their express terms have a different duration, this Agreement shall
terminate five (5) years from the Effective Date or by mutual written
consent of the Parties.
9.2 Notwithstanding the foregoing, all rights granted under Article 3 of this
Agreement expressly expire six (6) months from the date hereof unless
extended by written mutual agreement of the parties to this Agreement.
9.3 In the event of the insolvency or inability to pay debts as they become due
by either party, voluntary or involuntary bankruptcy proceedings by or
against either party, or the appointment of a receiver or assignee of
either party for the benefit of creditors, the other party may terminate
this Agreement immediately by written notice, if so permitted by applicable
laws.
9.4 All rights granted by TVI in this Agreement shall cease upon any
termination or cancellation of this Agreement.
9.5 The termination of this Agreement shall not prejudice the right of TVI to
recover any fees or other sums otherwise due it at the time of termination
or cancellation.
ARTICLE 10
GENERAL PROVISIONS
------------------
10.1 Notices
-------
Any notice or demand required or permitted to be given under this Agreement
shall be in writing and shall be deemed effective upon the personal
delivery thereof if delivered or, if mailed, forty-eight hours after having
been deposited in the United States mail, certified or registered, return
receipt requested, to such party addressed to it at its address set forth
below, or to such other address as it shall designate by written notice to
the other party:
If to TVI:
Tuboscope Vetco International Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Attention: Office of the General Counsel
If to KARLSSON:
Xx. Xxxxxxxx Xxxxxxxx
0000 Xxxxx Xxxx Xxxx
XXXXXXXX, XXXXX 00000
If to TVIES:
_____________________________
_____________________________
_____________________________
_____________________________
10.2 Applicable Law
--------------
This agreement shall be governed by and construed in accordance with the
laws of the state of Texas without regard to the principles of conflict of
laws.
10.3 Arbitration
-----------
Except for injunctive or other equitable relief, any controversy or claim
arising out of or in relation to this Agreement or the breach thereof will,
at the written request of either party delivered to the other party not
less than thirty (30) days in advance of the date of such submittal, be
submitted to arbitration in accordance with the then existing Rules of the
American Arbitration Society. The site of such arbitration, unless the
Parties agree otherwise, will be in the city of Houston, Texas.
The existence of a controversy or arbitration does not free any of the
Parties from the fulfillment of their respective obligations, or rights, or
relief indicated in this Agreement while the referred controversy is being
resolved.
10.4 Assignment
----------
This Agreement, and any rights to use, and/or license granted herein, may
not be assigned or transferred by KARLSSON or TVIES, in whole or in part,
either voluntarily or by operation of law, without the prior express
written consent of TVI.
10.5 Waivers
-------
The waiver in any particular instance or series of instances of any term or
condition of this Agreement or any breach hereof by either party shall not
constitute a waiver of such term or condition or any breach thereof in any
other instance.
10.6 Amendment
---------
This Agreement is subject to amendment only by subsequent written agreement
between, and executed by, the Parties hereto. Commencement or continuation
of any custom, practice or usage by TVI shall not constitute an amendment
hereof or otherwise give rise to enforceable rights or create obligations
of TVI.
10.7 Separability
------------
In the event any Article or portion thereof is declared illegal, the
remainder of this Agreement shall remain in full force and effect.
10.8 Duration of Rights
------------------
Rights and obligations created by or arising under this Agreement shall
terminate automatically upon the expiration of this Agreement except as
otherwise expressly provided herein.
10.9 Attorneys' Fees
---------------
If any party to this Agreement brings an action to enforce its rights
under this Agreement, the prevailing party shall be entitled to recover
its costs and expenses, including without limitation, reasonable
attorneys' fees and disbursements, incurred in connection with such
action.
10.10 Sole and Entire Agreement
-------------------------
This Agreement and any Appendices attached hereto constitute the sole and
entire existing agreements between the Parties as to this subject matter
and completely and correctly express all of the rights and obligations of
the Parties. All prior agreements, conditions, practices, customs, usages
and obligations are completely superseded and revoked insofar as any such
prior agreement, conditions, practice, custom, usage or obligations might
have given rise to any enforceable right.
10.11 Headings and Schedules
----------------------
The headings in this Agreement are for convenience only and shall not
effect the interpretation or construction thereof. The Appendix attached
hereto are specifically made a part of this Agreement for all purposes as
if set forth at length in the body of this Agreement.
10.12 Construction
------------
Differences in language as between similar provisions covering similar
matters may reflect differences in style rather than a different
substantive intent and should be construed accordingly. It is expressly
agreed that any ambiguities in the construction of this Agreement shall
not be construed against the drafting party.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
and year first above written.
TUBOSCOPE VETCO INTERNATIONAL INC. XXXXXXXX XXXXXXXX
BY: /s/ X.X. Xxxxxxx, III /s/ Xxxxxxxx Xxxxxxxx
-------------------------------- -----------------------------
X.X. Xxxxxxx, III individually
TITLE: VICE PRESIDENT
------------------------------
TVIES, INC.
BY: /s/ Xxxxxxxx Xxxxxxxx
--------------------------
TITLE: President
-----------------------
Exhibit B
Expendable Items
----------------
Bench 1,500
Filter 3,000
Heater 180
Centrifuge 1,200
Xxxx Xxxxxx Centrifuge 1,000
Heater Plates 200
Scale 350
Microscope 350
2 x Xxxxxx Counter 3,200
HNU (PID) Meter 2,000
Radiation Breathing Zone Monitor 700
4 x Chemical LMI Pump 4,000
3 Air Pumps 1,200
Lab Screen 400
Lab Glass Wear 500
Lab Chemicals 1,000
Safety Equipment 1,500
4 Drums Ion Exchange Resin 500
4 Drum Activated Carbon 900
Soil Washing Chemical 12,925 (reduced price)
------
TOTAL 36,605
EQUIPMENT INVENTORY
Small Soil Washing System -
Single LPT Auger with attached API Tank
Soak Auger
Fines Auger
Slurry Tank
Diesel Storage Tank
Feed Conveyor
Heater Skid with Make Up Tank & (4) Propane Burners
(2) Bobcats
Compressor
(3) Bayou Mud Pumps
(3) Chemical Tanks
(4) Metal Bins
Miscellaneous Hoses
Large Soil Washing System -
Dual LPT Auger with attached Fines Auger
Soak Auger
API Skid
Slurry Tank
Diesel Storage Tank
Waste Oil Tank
Heater Skid with Make Up and (4) Diesel Burners
Heater Skid with (2) Propane Burners
Electric Master Control Panel & Motor Control
(2) Smico Shakers
(1) Xxxxx Shaker
Conveyors: Weight Scale & Controls
Feed Conveyors (20 ft. and 12 ft.)
Stacking Conveyor
Compressor
Generator
(2) Bobcats (Model #743 B)
Screen Plant
(4) Bayou Mud Pumps
(3) 3" Sandpiper Pumps
(2) 2" Sandpiper Pumps
20 ft. Storage Container
Vapor Absorption Skid
Chemical Skid with Pumps
(2) Dry Chemical Feed Augers
Miscellaneous Hand Tools, Ladders and Scaffolding
Miscellaneous Hoses
Container
Lab Equipment
AMENDMENT TO
EQUIPMENT RENTAL AND AGREEMENT
This Amendment to Equipment Rental and Agreement (the "Agreement") is entered
into effective the 28th day of February, 1996 by and between Tuboscope Vetco
International Inc., a Texas corporation having its principal office at 0000
Xxxxxx Xxxx, Xxxxxxx, Xxxxx 00000 ("TVI"), Xxxxxxxx Xxxxxxxx an individual with
residence at 0000 Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxx 00000 ("Karlsson") and TVIES,
Inc., a Texas corporation with offices currently located at 0000 Xxxxxx Xxxx,
Xxxxxxx, Xxxxx 00000 ("TVIES"). TVI, TVIES and Karlsson are hereinafter
sometimes referred to as the "Parties".
WHEREAS, the Parties have previously entered into an Equipment Rental and
Agreement dated August 17, 1995 (the "Agreement"), which Agreement is still in
full force and effect; and
WHEREAS, the Parties now wish to amend the Agreement by entering into this
Amendment to better provide for the future relationships between the Parties.
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, the adequacy and sufficiency of which is hereby specifically
acknowledged and agreed, the Parties hereto agree as follows:
1. Article 4.1(a) is amended as follows:
Quarterly payments equal to four percent (4%) of the Gross Revenue for
each quarter of TVIES and its subsidiaries throughout the term of this
Agreement up to a maximum aggregate of $1,080,000.00. The quarterly
payments shall be made for revenues actually received by Karlsson and/or
TVIES or by its successors, assigns or the like.
2. All other provisions of the Agreement remain unchanged and shall continue
in full force and effect.
IN WITNESS WHEREOF the Parties hereto have executed this Amendment on the date
and year first written above.
TUBOSCOPE VETCO INTERNATIONAL INC .
BY: /s/ Xxxxxx X. Xxxxx
----------------------------------
TITLE: Executive Vice President
--------------------------------
XXXXXXXX XXXXXXXX
/s/ Xxxxxxxx Xxxxxxxx
--------------------------------------
Individually
TVIES, INC.
BY: /s/ Xxxxxxxx Xxxxxxxx
----------------------------------
TITLE: President
--------------------------------
AGREEMENT
This Agreement is made and entered into on the 1st day of August, 1995
("Effective Date"), by and among Tuboscope Vetco International Inc., a Texas
corporation ("TVI"), TVIES, Inc. (f/k/a Tuboscope Vetco International
Environmental Services, Inc.) ("TVIES") and Xxxxxxxx Xxxxxxxx ("HK"). TVI and
TVIES are hereinafter sometimes collectively referred to as "Tuboscope".
Tuboscope and HK are hereinafter sometimes referred to as "Parties".
WHEREAS, HK entered into an employment agreement with TVI on or about March 4,
1993 as amended on April 27, 1993 (the "Employment Agreement"); and
WHEREAS, the Parties wish to terminate the Employment Agreement and enter into
this new Agreement to provide for the future relationship of TVI and HK; and
WHEREAS, the Parties understand and acknowledge that this document constitutes
an offer to HK by TVI and that by signature and acceptance hereof HK
acknowledges that he has read and understood the terms of this Agreement in full
and that his signature on this Agreement was done so knowingly and voluntarily.
HK acknowledges that TVI has recommended that he consult with an attorney about
this Agreement and his rights prior to signing it. HK and TVI understand and
acknowledge that he will not waive or give up any rights or claims he may have
against TVI that may arise from acts occurring after the date that he signs this
Agreement.
TVI's offer, as described in this document, will be open and effective until
August 29, 1995. HK may elect to accept or reject this offer within that time
period. If no signed Agreement is returned to TVI by August 29, 1995, the offer
will be considered withdrawn by TVI.
If HK signs this Agreement and waives certain rights against TVI, HK shall have
seven (7) days following the return of the signed Agreement to TVI in order to
change his mind and revoke the Agreement. In other words, the Agreement shall
not become effective until seven (7) days have passed following the tender of
the signed Agreement by HK. Upon the expiration of the seven (7) day period, the
Agreement shall be retroactive to the Effective Date; and
WHEREAS, pursuant to the Employment Agreement, HK is entitled to certain
benefits which include four (4) weeks vacation pay, separation pay, benefit
continuation, and the right to convert, at the end of that period at HK's
expense, his hospitalization, major medical and dental insurance, which
conversion is provided for under federal law known as COBRA. (Nothing contained
herein is intended or shall effect these COBRA rights); and
WHEREAS, the benefits Listed above belong to HK even if he does not decide to
sign this Agreement. However, signature of this Agreement by HK, which signature
is not revoked under the provisions contained herein thereby waiving his rights
as further described in this document, will entitle HK to the additional
consideration over and above the amounts and benefits he would normally be
entitled; and
WHEREAS, TVI as the sole shareholder of TVIES wishes to sell all its rights,
title, and interest to the shares of common stock of TVIES and HK wishes to
acquire all rights, title, and interest in and to all of the shares common stock
of TVIES
NOW THEREFORE, in consideration of the premises, mutual covenants and promises
made herein and other good and valuable consideration, as more specifically set
forth herein, the adequacy and sufficiency of which is hereby specifically
acknowledged and agreed, the Parties agree as follows:
1. As of August 1, 1995, HK shall have ceased performing in his capacity as
"President-Tuboscope Vetco International Environmental Services Inc.".
2. HK shall receive the equivalent of six (6) months pay in equal bi-monthly
installments. In addition, HK shall receive four (4) weeks vacation pay. Any
payments hereunder shall be considered income and subject to any withholding.
From August 1, 1996 until February 1, 1996 HK shall receive a car allowance
of Eight Hundred Dollars and No Cents ($800.00) per month.
3. In exchange for the consideration recited herein and for the further
consideration of Ten Dollars and No Cents ($10.00) TVI shall sell, and
otherwise for all purposes transfer to HK all outstanding shares of common
stock of TVIES consisting of one thousand (1,000) shares of common stock with
a par value of $0.01/share. TVI hereby represents and warrants to HK that TVI
has good and valid title to the outstanding shares of common stock of TVIES
and that none of the shares are subject to any liens or encumbrances. Such
transfer shall be accomplished by transferring TVI's Certificate No. 1 of
1,000 shares of Tuboscope Vetco International Environmental Services Inc.
common stock to HK. Notwithstanding anything to the contrary, said share
transfer shall be effective August 17, 1995. Immediately upon such transfer,
HK as the sole shareholder, shall appoint a new Board of Directors, cancel
share Certificate No. 1, and issue such certificates in the name of TVIES,
Inc. to such shareholders as XX xxxxx appropriate.
4. It is understood, agreed and acknowledged by the Parties that except for the
assets listed on the attached Appendix "A", TVIES has no other asset, either
tangible or intangible.
5. HK shall be provided medical benefits and certain life insurance benefits as
if he were a fully active employee pursuant to TVI's Medical Benefits Plan
and Life Insurance Plans, or any successor plans until February 1, 1996, and
HK shall continue to make the required contributions therefor.
6. It is agreed that the medical coverages provided in paragraph 5 above shall
continue as therein set forth unless and until HK shall become eligible for
group medical insurance pursuant to his employment with another employer
which provides equivalent or superior medicaI benefits and coverage. At such
time, HK will so notify TVI and TVI's obligation to provide the coverage set
forth in paragraph 5 above shall cease.
2
7. HK agrees to knowingly and voluntarily, waive, settle, release and discharge
TVI of any and all claims, demands, damages, actions or causes of action,
including any claim for attorney's fees, which HK may have against TVI, its
subsidiaries and affiliates and the officers, directors, employees, and
agents of each of them arising out of or relating to his employment or
arising out of his separation of employment with TVI. HK understands and
acknowledges that this waiver of rights includes any claims of HK arising
under any federal, state or local laws or regulations pertaining to
discrimination on the basis of sex, race, color, religion, creed, national
origin, age or handicap status or to retaliation on any grounds and
particularly any rights of HK pursuant to the Age Discrimination in
Employment Act, The Texas Human Rights Commission Act, The Older Workers
Benefit Protection Act, or Title VII of the Civil Rights Act of 1964. HK
acknowledges that he waives his right to file suit or file a charge under
state law for any claim under the laws and statutes named in the paragraph
above. HK further waives his right to claim or receive damages as a result
of any charge of discrimination or lawsuit which may be filed by HK or
anyone acting on HK's behalf.
8. TVI agrees to hold harmless and indemnify HK and TVIES from any and all
costs, claims, demands, or liabilities arising out of the failure to pay any
vendor of TVIES for materials, supplies or services provided by the vendor
prior to August 1, l995.
In addition to the indemnification above, TVI agrees to hold harmless and
indemnify HK and TVIES from any and all costs, claims, demands, or
liabilities arising out of the operations of TVI or any of its subsidiaries
other than TVIES
9. This Agreement and all rights under this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective personal or legal representatives, executors, administrators,
heirs, distributees, devisees, legatees, successors, and assigns. This
Agreement is personal in nature, and none of the parties to this Agreement
shall, without the written Agreement of the other party assign any right or
obligation to this Agreement to any other person or entity. Anything to the
contrary in the foregoing notwithstanding, the covenants contained in this
Agreement shall continue to be applicable whether TVI's business is
conducted by it, by any subsidiary of TVI; or by any other successor to the
business of TVI.
10. For purposes of this Agreement notices and other communication provided for
in this Agreement shall be deemed to be properly given if delivered or sent
by United States Certified Mail, return receipt requested, postage prepaid,
addressed as follows:
If to HK: Xxxxxxxx Xxxxxxxx
0000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxx 00000
If to TVI: Tuboscope Vetco International Inc.
P. O. Xxx 000
Xxxxxxx, XX 00000
Attn: Office of the General Counsel
3
If to TVIES: ________________________________
________________________________
________________________________
________________________________
or to such other address as any party may have furnished to the other in
writing in accordance with this paragraph. Such notices or other
communications shall be effective only upon receipt.
11. No provision of this Agreement may be modified, waived, or discharged unless
such waiver, modification, or discharge is agreed to in writing and is
signed by HK and an officer of TVI so authorized by the Board of Directors
of TVI. No waiver by any party to this Agreement at any time of any breach
by another party of, or compliance by another party with, any condition or
provision of this Agreement to be performed by another party shall be deemed
to be a waiver of similar or dissimilar provisions or conditions at the same
or any prior or subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter of this
Agreement have been made by any party that are not expressly set forth in
this Agreement.
12. The validity or enforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which other provisions shall remain in full
force and effect, nor shall the invalidity or unenforceability of a portion
of any provision of this Agreement affect the validity or enforceability of
the balance of such provisions.
13. This document may be executed in one or more counterparts, each of which
shall be deemed to be an original and all of which together shall constitute
a single agreement.
14. This Agreement shall be governed by and in accordance with the laws of
Texas. Any controversy or claim arising out of or in relation to this
Agreement or the breach thereof will, at the written request or either party
delivered to the other party not less than thirty (30) days in advance of
the date of such submittal be submitted to arbitration in accordance with
the then existing Rules of the American Arbitration Society. The site of
such arbitration, unless the parties agree otherwise, will be Houston,
Texas.
IN WITNESS WHEREOF, Tuboscope Vetco International Inc., TVIES, Inc. and HK have
executed this Agreement effective on the dates set forth herein.
4
TUBOSCOPE VETCO INTERNATIONAL INC.
BY: /s/Xxxxx X. Xxxxxxx, III
--------------------------------
Xxxxx X. Xxxxxxx, III
Vice President
DATE: 8/15/95
------------------------------
TVIES, INC.
TITLE: President
-----------------------------
DATE: 8/18/95
------------------------------
/s/ Xxxxxxxx Xxxxxxxx
-----------------------------------
Xxxxxxxx Xxxxxxxx
DATE: 8/18/95
------------------------------
SUBSCRIPTION AGREEMENT AND INVESTMENT REPRESENTATION
------------------------
THE SHARES OF COMMON SHARES BEING SUBSCRIBED HERETO
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR UNDER APPLICABLE STATE SECURITIES LAWS
BECAUSE OF THE APPLICATION OF REGULATIONS
PROMULGATED BY THE U.S. SECURITIES AND EXCHANGE COMMISSION
UNDER THE PROVISIONS OF THE SECURITIES ACT OF 1933, AS AMENDED.
FURTHER, THE SHARES OF COMMON SHARES BEING SUBSCRIBED HERETO
MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO TRANSACTIONS
EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT OF 1933, AS AMENDED,
AND APPLICABLE STATE SECURITIES LAWS, OR COMPLIANCE THEREWITH.
Board of Directors
DK Industries, Inc.
0000 Xxxxxxx Xx., Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Gentlemen:
1. CONSIDERATION FOR PURCHASE. The undersigned (the "Purchaser") has
--------------------------
entered into a Reorganization Plan dated September 30, 1996, under the terms of
which the undersigned has agreed to exchange one thousand (1,000) shares of
TVIES, Inc. common stock, being all of the issued and outstanding stock of that
corporation for thirty-three thousand three hundred thirty-three (33,333) shares
of common stock of DK Industries, Inc.
2. UNDERSTANDINGS OF THE PURCHASER. The Purchaser acknowledges understands
-------------------------------
and agrees that:
(a) The certificates representing the Shares will bear a legend
restricting its transfer for a period of time as provided under Regulation S
promulgated under the Securities Act of 1933, as amended (the "Act"); further,
the Shares are subject to the restrictions on transfer pursuant to the
aforementioned legend and as provided in Regulation S; and further, the Shares
or a portion thereof, if this subscription is accepted in whole or in part, will
be issued in the name set forth under the signature line below.
(b) The Shares have not been registered under the Act or any
applicable state law (collectively, the "Securities Acts"). The Shares may not
be sold, offered for sale, transferred, pledged, hypothecated or otherwise
disposed of except in compliance with the Securities Acts. The
Company has no obligation, and does not intend, to cause any of the Shares to be
registered under the Securities Acts or to comply with any exemption under the
Securities Acts which would permit a sale or sales of the Share. The legal
consequences of the foregoing are that the Purchaser will be required to bear
the economic risk of his investment in the Shares for the aforesaid period of
time. If the Purchaser desires to sell or transfer all or any part of the
Shares, the Company may require the Purchaser's counsel to provide a legal
opinion that the transfer may be made without registration under the Securities
Acts. Other restrictions discussed elsewhere herein may be applicable. The
Purchaser is subject to the restrictions on transfer described herein and the
Company will issue stop transfer orders to its transfer agent in order to
enforce such restrictions.
(c) No federal or state (U.S.A.) agency has made any findings or
determination as to the fairness of an investment in the Company, or any
recommendation or endorsement of this investment.
(d) Only a limited market exists for the resale of the Shares and no market
may exist in the future for any sale or sales.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
-----------------------------------------------
represents and warrants to the Company as follows:
(a) My commitment to investments that are not readily marketable is not
disproportionate to my net worth and my investment in the Shares will not cause
such overall commitment to become excessive.
(b) I have the financial ability to bear the economic risk of an investment
in the Shares, adequate means for providing for my current needs and personal
contingencies and no need for liquidity with respect to this investment.
(c) I have evaluated the high risk of investing in the Shares and I have
such knowledge and experience in financial and business matters in general and
in particular with respect to this type of investment that I am capable of
evaluating the merits and risks of an investment in the Shares.
(d) I have been given the opportunity to ask questions of and receive
answers from the Company concerning the terms and conditions of this investment
and to obtain additional information necessary to verify the accuracy of the
information I desired in order to evaluate this investment. In evaluating the
suitability of an investment in the Shares, I have not relied upon any
representations or other information (whether verbal or written) other than that
furnished by the Company or its representatives.
(e) I have had the opportunity to discuss with my professional legal, tax
and financial advisers the suitability of an investment in the Shares for my
particular tax and financial situation and all information that I have provided
to the Company concerning me and my financial position is correct and complete
as of the date set forth below. If there should be any material change
2
in such information prior to my admission as a shareholder of the Company, I
will immediately provide such information to the Company.
(f) I am acquiring the Shares solely for my own personal account for
investment purposes only, and I am not purchasing the Shares with a view to the
resale, distribution, subdivision or fractionalization thereof.
(g) I am neither a member of, nor am I affiliated with or employed by, a
member of the National Association of Securities Dealers, Inc., a broker-dealer
registered with the Commission or any similar agency of any state.
(h) I am not acting alone or in concert with others in a transaction or
series of transactions intended to circumvent the registration requirements of
the Securities Acts.
(i) The Purchaser understands that the Company is the issuer of the
securities which are the subject of this agreement, and that, for purposes of
Regulation S, a "distributor" is any underwriter, dealer or other person who
participates, pursuant to a contractual arrangement, in the distribution of
securities offered or sold in reliance on Regulation S and that an "affiliate"
is any partner, officer, director or any person directly or indirectly
controlling, controlled by or under common control with the person in question.
In this regard, the Purchaser shall not, during the applicable period of time as
provided under Regulation S act as a distributor of the Shares, either directly
or through an affiliate, nor shall the Purchaser sell, transfer, hypothecate to
otherwise convey the Shares or any interest therein, other than to a non-U.S.
person.
(j) Neither the Purchaser nor any affiliate of the Purchase, will receive
any fee or the remuneration from the Company or otherwise in respect of the
transaction evidenced hereby.
The foregoing representations, warranties, agreements, undertakings and
acknowledgements are made by me with the intent that they be relied upon in
determining my suitability as a purchaser of the Shares. In addition, I agree to
notify the Company immediately of any change in any representation, warranty or
other information.
4. INDEMNITY BY PURCHASER. The Purchaser understands and acknowledges that the
------------------------
Company is relying upon the representation, warranties and agreements made by
the Purchaser to and with the Company herein and, thus, hereby agrees to
indemnify the Company, its officers, directors, agents, attorneys and employees,
and agrees to hold each of them harmless against any and all loss, damage,
liability or exposure, including reasonable attorney fees, that if or any of
them may suffer, sustain or incur by reason of or in connection with any
misrepresentation or breach of warranty or agreement made by the Purchaser under
this Agreement, or in connection with the sale or distribution by the Purchaser
of the Shares in violation of the Act or any other applicable law.
3
5. MISCELLANEOUS PROVISIONS.
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(a) Further Assurances. At any time and from time-to-time after the date of
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this Subscription Agreement and Investment Representation (the "Agreement"),
each party shall execute such additional instruments and take such other and
further action as may be reasonably requested by the other party to confirm or
perfect title to any property transferred hereunder or otherwise to carry out
the intent and purpose of this Agreement.
(b) Waiver. Any failure on the part of either party hereunder to comply
------
with any of his or its obligations, agreements or conditions hereunder may be
waived in writing by the party to whom such compliance is owed; however, waiver
on one occasion does not operate to effectuate a waiver on any other occasion.
(c) Brokers. Each party represents to the other party that no broker or
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finder has acted for it in connection with this Agreement. Each party agrees to
indemnify, save, defend and hold the other party harmless from and against any
fee, loss or expense arising out of any claim by a broker or finder employed, or
alleged to have been employed, by it. Further, the employing party of any such
broker or finder shall obtain the release of any and all claims which any such
broker or finder may have against, or which may accrue to, the non-employing
party.
(d) Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties and supersedes and cancels any other agreement,
representation or communication, whether verbal or written, between the parties
hereto relating to the transactions evidenced hereby and the subject matter
hereof.
(e) Headings. The article and paragraph headings in this Agreement are
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inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Governing Law. This Agreement shall be governed by and construed and
-------------
enforced in accordance with the laws of the State of Colorado.
(g) Counterparts. This Agreement may be executed simultaneously in two or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(h) No Verbal Modification. This Agreement may be modified solely and only
----------------------
upon the mutual agreement of the parties.
(i) Survival of Representation, Warranties and Covenants. The
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representations, warranties, covenants and agreements contained herein shall
survive the date and execution of this Agreement.
(j) Irrevocable Nature of Agreement. This Agreement is irrevocable.
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4
/s/ Xxxxxxxx Xxxxxxxx
Dated September 30, 1996 -----------------------------
Xxxxxxxx Xxxxxxxx
0000 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
5
CERTIFICATE
(Section 2. l(c)(4))
I, Xxxxxxxx Xxxxxxxx, Pursuant to Article II of the Reorganization Plan dated
September 30, 1996, as President and Sole Shareholder of TVIES, Inc., hereby
certify that the financial statements have been prepared in accordance with
generally accepted accounting principles.
Further, TVIES' Balance Sheets present fairly the financial condition of TVIES
as of the dates indicated thereon and such Profit and Loss Statements present
fairly the results of operations of TVIES for the periods indicated thereon.
Dated this ______ day of _____________________, 1996.
/s/ Xxxxxxxx Xxxxxxxx
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Xxxxxxxx Xxxxxxxx
