SPLIT-OFF AGREEMENT
EXHIBIT
10.3
SPLIT-OFF
AGREEMENT,
dated
as of this 6th day of April 2006 (this “Agreement”), by and among Foothills
Resources, Inc., a Nevada corporation (“Seller”), J. Xxxx Xxxxxx (“Purchaser”),
Foothills Leasco, Inc., a Nevada corporation (“Leasco”), and Brasada California,
Inc., a Delaware corporation (“Brasada”).
R
E C I T A L S:
WHEREAS, Seller
is
the owner of all of the issued and outstanding capital stock of Leasco. Leasco
is a newly-formed wholly owned subsidiary of Seller which was organized to
acquire, and has so acquired, a mineral lease previously granted to Seller.
Seller has no other businesses or operations;
WHEREAS,
prior
to the execution of this Agreement, Seller, Brasada, and a newly-formed
wholly-owned Delaware subsidiary of Seller, Brasada Acquisition Corp.
(“Acquisition Corp.”), have entered into an Agreement and Plan of Merger and
Reorganization (the “Merger Agreement”) pursuant to which Acquisition Corp.
merged with and into Brasada with Brasada being the surviving entity (the
“Merger”), and the stockholders of Brasada received shares of common stock in
Seller in exchange for their shares of common stock in Brasada;
WHEREAS,
the
execution and delivery of this Agreement was required by Brasada as a condition
subsequent to its execution of the Merger Agreement. The consummation of the
purchase and sale transaction contemplated by this Agreement was also a
condition subsequent to the completion of the Merger pursuant to the Merger
Agreement. Seller has represented to Brasada in the Merger Agreement that the
purchase and sale transaction contemplated by this Agreement would be
consummated as soon as practicable following the consummation of the Merger,
and
Brasada relied on such representation in entering into the Merger
Agreement;
WHEREAS,
Purchaser desires to purchase the Shares (as defined in Section
1.1)
from
Seller, and to assume, as between Seller and Purchaser, all responsibilities
for
any debts, obligations and liabilities of Leasco, on the terms and subject
to
the conditions specified in this Agreement; and
WHEREAS,
Seller
desires to sell and transfer the Shares to the Purchaser, on the terms and
subject to the conditions specified in this Agreement;
NOW,
THEREFORE,
in
consideration of the premises and the covenants, promises, and agreements herein
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
legally to be bound, agree as follows.
I. PURCHASE
AND SALE OF STOCK.
1.1 Purchased
Shares.
Subject
to the terms and conditions provided below, Seller shall sell and transfer
to
Purchaser and Purchaser shall purchase from Seller, on the Closing Date (as
defined in Section
1.3),
all
the issued and outstanding shares of capital stock of Leasco (the
“Shares”).
1.2 Purchase
Price.
The
purchase price for the Shares shall be the transfer and delivery by Purchaser
to
Seller of 34,106,183 shares of common stock of Seller that Purchaser owns (the
“Purchase Price Shares”), deliverable as provided in Section
2.2.
1.3 Closing.
The
closing of the transactions contemplated in this Agreement (the “Closing”) shall
take place as soon as practicable following the execution of this Agreement.
The
date on which the Closing occurs shall be referred to herein as the Closing
Date
(the “Closing Date”).
II. CLOSING.
2.1 Transfer
of Shares.
At the
Closing, Seller shall deliver to Purchaser a certificate representing the
Shares, duly endorsed to Purchaser or as directed by Purchaser, which delivery
shall vest Purchaser with good and marketable title to all of the issued and
outstanding shares of capital stock of Leasco, free and clear of all liens
and
encumbrances.
2.2 Payment
of Purchase Price.
At the
Closing, Purchaser shall deliver to Seller a certificate or certificates
representing the Purchase Price Shares duly endorsed to Seller, which delivery
shall vest Seller with good and marketable title to the Purchase Price Shares,
free and clear of all liens and encumbrances.
2.3 Transfer
of Records.
On or
before the Closing, Seller shall arrange for transfer to Leasco all existing
corporate books and records in Seller’s possession relating to Leasco and its
business, including but not limited to all agreements, litigation files, real
estate files, mineral leases, personnel files and filings with governmental
agencies; provided,
however,
when
any such documents relate to both Seller and Leasco, only copies of such
documents need be furnished. On or before the Closing, Purchaser and Leasco
shall transfer to Seller all existing corporate books and records in the
possession of Purchaser or Leasco relating to Seller, including but not limited
to all corporate minute books, stock ledgers, certificates and corporate seals
of Seller and all agreements, litigation files, real property files, personnel
files and filings with governmental agencies; provided,
however,
when
any such documents relate to both Seller and Leasco or its business, only copies
of such documents need be furnished.
III. PURCHASER’S
REPRESENTATIONS AND WARRANTIES.
Purchaser represents and warrants to Seller and Brasada that:
3.1 Capacity
and Enforceability.
Purchaser has the legal capacity to execute and deliver this Agreement and
the
documents to be executed and delivered by Purchaser at the Closing pursuant
to
the transactions contemplated hereby. This Agreement and all such documents
constitute valid and binding agreements of Purchaser, enforceable in accordance
with their terms.
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3.2 Compliance.
Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby by Purchaser will result in the breach of
any
term or provision of, or constitute a default under, or violate any agreement,
indenture, instrument, order, law or regulation to which Purchaser is a party
or
by which Purchaser is bound.
3.3 Purchase
for Investment.
Purchaser is financially able to bear the economic risks of acquiring an
interest in Leasco and the other transactions contemplated hereby, and has
no
need for liquidity in this investment. Purchaser has such knowledge and
experience in financial and business matters in general and with respect to
businesses of a nature similar to the business of Leasco so as to be capable
of
evaluating the merits and risks of, and making an informed business decision
with regard to, the acquisition of the Shares. Purchaser is acquiring the Shares
solely for his own account and not with a view to or for resale in connection
with any distribution or public offering thereof, within the meaning of any
applicable securities laws and regulations, unless such distribution or offering
is registered under the Securities Act of 1933, as amended (the “Securities
Act”), or an exemption from such registration is available. Purchaser has
(i) received all the information he has deemed necessary to make an
informed investment decision with respect to the acquisition of the Shares;
(ii) had an opportunity to make such investigation as he has desired
pertaining to Leasco and the acquisition of an interest therein and to verify
the information which is, and has been, made available to him; and
(iii) had the opportunity to ask questions of Seller concerning Leasco.
Purchaser acknowledges that Purchaser is an officer and director of Seller
and
Leasco and, as such, has actual knowledge of the business, operations and
financial affairs of Leasco. Purchaser has received no public solicitation
or
advertisement with respect to the offer or sale of the Shares. Purchaser
realizes that the Shares are “restricted securities” as that term is defined in
Rule 144 promulgated by the Securities and Exchange Commission under the
Securities Act, the resale of the Shares is restricted by federal and state
securities laws and, accordingly, the Shares must be held indefinitely unless
their resale is subsequently registered under the Securities Act or an exemption
from such registration is available for their resale. Purchaser understands
that
any resale of the Shares by him must be registered under the Securities Act
(and
any applicable state securities law) or be effected in circumstances that,
in
the opinion of counsel for Leasco at the time, create an exemption or otherwise
do not require registration under the Securities Act (or applicable state
securities laws). Purchaser acknowledges and consents that certificates now
or
hereafter issued for the Shares will bear a legend substantially as
follows:
THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR QUALIFIED UNDER
ANY APPLICABLE STATE SECURITIES LAWS (THE “STATE ACTS”), HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND
QUALIFICATION UNDER THE STATE ACTS OR EXEMPTIONS FROM SUCH REGISTRATION OR
QUALIFICATION REQUIREMENTS (INCLUDING, IN THE CASE OF THE SECURITIES ACT, THE
EXEMPTIONS AFFORDED BY SECTION 4(1) OF THE SECURITIES ACT AND RULE 144
THEREUNDER). AS A PRECONDITION TO ANY SUCH TRANSFER, THE ISSUER OF THESE
SECURITIES SHALL BE FURNISHED WITH AN OPINION OF COUNSEL OPINING AS TO THE
AVAILABILITY OF EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION AND/OR
SUCH
OTHER EVIDENCE AS MAY BE SATISFACTORY THERETO THAT ANY SUCH TRANSFER WILL NOT
VIOLATE THE SECURITIES LAWS.
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Purchaser
understands that the Shares are being sold to him pursuant to the exemption
from
registration contained in Section 4(1) of the Securities Act and that the Seller
is relying upon the representations made herein as one of the bases for claiming
the Section 4(1) exemption.
3.4 Liabilities.
Following the Closing, Seller will have no liability for any debts, liabilities
or obligations of Leasco or its business or activities, and there are no
outstanding guaranties, performance or payment bonds, letters of credit or
other
contingent contractual obligations that have been undertaken by Seller directly
or indirectly in relation to Leasco or its business and that may survive the
Closing.
3.5 Title
to Purchase Price Shares.
Purchaser is the sole record and beneficial owner of the Purchase Price Shares.
At Closing, Purchaser will have good and marketable title to the Purchase Price
Shares, which Purchase Price Shares are, and at the Closing will be, free and
clear of all options, warrants, pledges, claims, liens, and encumbrances and
any
restrictions or limitations prohibiting or restricting transfer to Seller,
except for restrictions on transfer as contemplated by applicable securities
laws.
IV. SELLER’S
AND LEASCO’S REPRESENTATIONS AND WARRANTIES.
Seller
and Leasco, jointly and severally, represent and warrant to Purchaser
that:
4.1 Organization
and Good Standing.
Seller
is a corporation duly incorporated, validly existing, and in good standing
under
the laws of the State of Nevada. Leasco is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware.
4.2 Authority
and Enforceability.
The
execution and delivery of this Agreement and the documents to be executed and
delivered at the Closing pursuant to the transactions contemplated hereby,
and
performance in accordance with the terms hereof and thereof, have been duly
authorized by Seller and all such documents constitute the valid and binding
agreements of Seller enforceable in accordance with their terms.
4.3 Title
to Shares.
Seller
is the sole record and beneficial owner of the Shares. At Closing, Seller will
have good and marketable title to the Shares, which Shares are, and at the
Closing will be, free and clear of all options, warrants, pledges, claims,
liens
and encumbrances, and any restrictions or limitations prohibiting or restricting
transfer to Purchaser, except for restrictions on transfer as contemplated
by
Section
3.3
above.
The Shares constitute all of the issued and outstanding shares of capital stock
of Leasco.
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4.4 WARN
Act.
Leasco
does not have a sufficient number of employees to make it subject to the Worker
Adjustment and Retraining Notification Act (“WARN Act”).
4.5 Representations
in Merger Agreement.
Leasco
represents and warrants that all of the representations and warranties by
Seller, insofar as they relate to Leasco, contained in the Merger Agreement
are
true and correct.
V. OBLIGATIONS
OF PURCHASER PENDING CLOSING.
Purchaser covenants and agrees that between the date hereof and the
Closing:
5.1 Not
Impair Performance.
Purchaser shall not take any intentional action that would cause the conditions
upon the obligations of the parties hereto to effect the transactions
contemplated hereby not to be fulfilled, including, without limitation, taking
or causing to be taken any action that would cause the representations and
warranties made by any party herein not to be true, correct and accurate as
of
the Closing, or in any way impairing the ability of Seller to satisfy its
obligations as provided in Article
VI.
5.2 Assist
Performance.
Purchaser shall exercise its reasonable best efforts to cause to be fulfilled
those conditions precedent to Seller’s obligations to consummate the
transactions contemplated hereby which are dependent upon actions of Purchaser
and to make and/or obtain any necessary filings and consents in order to
consummate the sale transaction contemplated by this Agreement.
VI. OBLIGATIONS
OF SELLER PENDING CLOSING.
Seller
covenants and agrees that between the date hereof and the Closing:
6.1
Business as Usual.
Leasco
shall operate and Seller shall cause Leasco to operate in accordance with past
practices and shall use best efforts to preserve its goodwill and the goodwill
of its employees, customers and others having business dealings with Leasco.
Without limiting the generality of the foregoing, from the date of this
Agreement until the Closing Date, Leasco shall (a) make all normal and
customary repairs to its equipment, assets and facilities, (b) keep in
force all insurance, (c) preserve in full force and effect all material
franchises, licenses, contracts and real property interests and comply in all
material respects with all laws and regulations, (d) collect all accounts
receivable and pay all trade creditors in the ordinary course of business at
intervals historically experienced, and (e) preserve and maintain Leasco’s
assets in their current operating condition and repair, ordinary wear and tear
excepted. Leasco shall not (i) amend, terminate or surrender any material
franchise, license, contract or real property interest, or (ii) sell or
dispose of any of its assets except in the ordinary course of business. Neither
Leasco nor Purchaser shall take or omit to take any action that results in
Seller incurring any liability or obligation prior to or in connection with
the
Closing.
6.2 Not
Impair Performance.
Seller
shall not take any intentional action that would cause the conditions upon
the
obligations of the parties hereto to effect the transactions contemplated hereby
not to be fulfilled, including, without limitation, taking or causing to be
taken any action which would cause the representations and warranties made
by
any party herein not to be materially true, correct and accurate as of the
Closing, or in any way impairing the ability of Purchaser to satisfy his
obligations as provided in Article
V.
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6.3 Assist
Performance.
Seller
shall exercise its reasonable best efforts to cause to be fulfilled those
conditions precedent to Purchaser’s obligations to consum-mate the transactions
contemplated hereby which are dependent upon the actions of Seller and to work
with Purchaser to make and/or obtain any necessary filings and consents. Seller
shall cause Leasco to comply with its obligations under this
Agreement.
VII. SELLER’S
AND LEASCO’S CONDITIONS PRECEDENT TO CLOSING.
The
obligations of Seller and Leasco to close the transactions contemplated by
this
Agreement are subject to the satisfaction at or prior to the Closing of each
of
the following conditions precedent (any or all of which may be waived by Seller
and Brasada in writing):
7.1 Representations
and Warranties; Performance.
All
representations and warranties of Purchaser contained in this Agreement shall
have been true and correct, in all material respects, when made and shall be
true and correct, in all material respects, at and as of the Closing, with
the
same effect as though such representations and warranties were made at and
as of
the Closing. Purchaser shall have performed and complied with all covenants
and
agreements and satisfied all conditions, in all material respects, required
by
this Agreement to be performed or complied with or satisfied by Purchaser at
or
prior to the Closing.
7.2 Additional
Documents.
Purchaser shall deliver or cause to be delivered such additional documents
as
may be necessary in connection with the consummation of the transactions
contemplated by this Agreement and the performance of their obligations
hereunder.
7.3 Release
by Leasco.
At the
Closing, Leasco shall execute and deliver to Seller and Brasada a general
release which in substance and effect releases Seller and Brasada from any
and
all liabilities and obligations that Seller and Brasada may owe to Leasco in
any
capacity and from any and all claims that Leasco may have against Seller,
Brasada, or their respective officers, directors, stockholders, employees and
agents (other than those arising pursuant to this Agreement or any document
delivered in connection with this Agreement).
VIII. PURCHASER’S
CONDITIONS PRECEDENT TO CLOSING.
The
obligation of Purchaser to close the transactions contemplated by this Agreement
is subject to the satisfaction at or prior to the Closing of each of the
following conditions precedent (any and all of which may be waived by Purchaser
in writing):
8.1 Representations
and Warranties; Performance.
All
representations and warranties of Seller and Leasco contained in this Agreement
shall have been true and correct, in all material respects, when made and shall
be true and correct, in all material respects, at and as of the Closing with
the
same effect as though such representations and warranties were made at and
as of
the Closing. Seller and Leasco shall have performed and complied with all
covenants and agreements and satisfied all conditions, in all material respects,
required by this Agreement to be performed or complied with or satisfied by
them
at or prior to the Closing.
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IX. OTHER
AGREEMENTS.
9.1 Expenses.
Each
party hereto shall bear its expenses separately incurred in connection with
this
Agreement and with the performance of its obligations hereunder.
9.2 Confidentiality.
The
parties hereto shall not make any public announcements concerning this
transaction other than in accordance with mutual agreement reached prior to
any
such announcement(s) and other than as may be required by applicable law or
judicial process. If for any reason the transactions contemplated hereby are
not
consummated, then Purchaser shall return any information received by Purchaser
from Seller or Leasco, and Purchaser shall cause all confidential information
obtained by Purchaser concerning Leasco and its business to be treated as
such.
9.3 Brokers’
Fees.
No
party to this Agreement has employed the services of a broker and each agrees
to
indemnify the other against all claims of any third parties for fees and
commissions of any brokers claiming a fee or commission related to the
transactions contemplated hereby.
9.4 Access
to Information Post-Closing; Cooperation.
(a) Following
the Closing, Purchaser and Leasco shall afford to Seller and its authorized
accountants, counsel, and other designated representatives reasonable access
(and including using reasonable efforts to give access to persons or firms
possessing information) and duplicating rights during normal business hours
to
allow records, books, contracts, instruments, computer data and other data
and
information (collectively, “Information”) within the possession or control of
Purchaser or Leasco insofar as such access is reasonably required by Seller.
Information may be requested under this Section
9.4(a)
for,
without limitation, audit, accounting, claims, litigation and tax purposes,
as
well as for purposes of fulfilling disclosure and reporting obligations and
performing this Agreement and the transactions contemplated hereby. No files,
books or records of Leasco existing at the Closing Date shall be destroyed
by
Purchaser or Leasco after Closing but prior to the expiration of any period
during which such files, books or records are required to be maintained and
preserved by applicable law without giving the Seller at least 30 days’ prior
written notice, during which xxxx Xxxxxx shall have the right to examine and
to
remove any such files, books and records prior to their
destruction.
(b) Following
the Closing, Seller shall afford to Leasco and its authorized accountants,
counsel and other designated representatives reasonable access (including using
reasonable efforts to give access to persons or firms possessing information)
duplicating rights during normal business hours to Information within Seller’s
possession or control relating to the business of Leasco. Information may be
requested under this Section
9.4(b)
for,
without limitation, audit, accounting, claims, litigation and tax purposes
as
well as for purposes of fulfilling disclosure and reporting obligations and
for
performing this Agreement and the transactions contemplated hereby. No files,
books or records of Leasco existing at the Closing Date shall be destroyed
by
Seller after Closing but prior to the expiration of any period during which
such
files, books or records are required to be maintained and preserved by
applicable law without giving the Purchaser at least 30 days prior written
notice, during which time Purchaser shall have the right to examine and to
remove any such files, books and records prior to their
destruction.
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(c) At
all
times following the Closing, Seller, Purchaser and Leasco shall use reasonable
efforts to make available to the other party on written request, the current
and
former officers, directors, employees and agents of Seller or Leasco for any
of
the purposes set forth in Section
9.4(a) or (b)
above or
as witnesses to the extent that such persons may be reasonably be required
in
connection with any legal, administrative or other proceedings in which Seller
or Leasco may from time to be involved.
(d) The
party
to whom any Information or witnesses are provided under this Section
9.4
shall
reimburse the provider thereof for all out-of-pocket expenses actually and
reasonably incurred in providing such Information or witnesses.
(e) Seller,
Purchaser, Leasco and their respective employees and agents shall each hold
in
strict confidence all Information concerning the other party in their possession
or furnished by the other or the other’s representative pursuant to this
Agreement with the same degree of care as such party utilizes as to such party’s
own confidential information (except to the extent that such Information is
(i) in the public domain through no fault of such party or (ii) later
lawfully acquired from any other source by such party), and each party shall
not
release or disclose such Information to any other person, except such party’s
auditors, attorneys, financial advisors, bankers, other consultants and advisors
or persons with whom such party has a valid obligation to disclose such
Information, unless compelled to disclose such Information by judicial or
administrative process or, as advised by its counsel, by other requirements
of
law.
(f) Seller,
Purchaser and Leasco shall each use their best efforts to forward promptly
to
the other party all notices, claims, correspondence and other materials which
are received and determined to pertain to the other party.
9.5 Guarantees,
Surety Bonds and Letter of Credit Obligations.
In the
event that Seller is obligated for any debts, obligations or liabilities of
Leasco by virtue of any outstanding guarantee, performance or surety bond or
letter of credit provided or arranged by Seller on or prior to the Closing
Date,
Purchaser and Leasco shall use best efforts to cause to be issued replacements
of such bonds, letters of credit and guarantees and to obtain any amendments,
novations, releases and approvals necessary to release and discharge fully
Seller from any liability thereunder following the Closing. Purchaser and
Leasco, jointly and severally, shall be responsible for, and shall indemnify,
hold harmless and defend Seller from and against, any costs or losses incurred
by Seller arising from such bonds, letters of credits and guarantees and any
liabilities arising therefrom and shall reimburse Seller for any payments that
Seller may be required to pay pursuant to enforcement of its obligations
relating to such bonds, letters of credit and guarantees.
9.6 Filings
and Consents.
Purchaser, at its risk, shall determine what, if any, filings and consents
must
be made and/or obtained prior to Closing to consummate the purchase and sale
of
the Shares. Purchaser shall indemnify the Seller Indemnified Parties (as defined
in Section
11.1
below)
against any Losses (as defined in Section
11.1
below)
incurred by any Seller Indemnified Parties by virtue of the failure to make
and/or obtain any such filings or consents. Recognizing that the failure to
make
and/or obtain any filings or consents may cause Seller to incur Losses or
otherwise adversely affect Seller, Purchaser and Leasco confirm that the
provisions of this Section
9.6
will not
limit Seller’s right to treat such failure as the failure of a condition
precedent to Seller’s obligation to close pursuant to Article
VII
above.
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9.7 Insurance.
Purchaser acknowledges that on the Closing Date, effective as of the Closing,
all insurance coverage and bonds provided by Seller for Leasco, and all
certificates of insurance evidencing that Leasco maintains any required
insurance by virtue of insurance provided by Seller, will terminate with respect
to any insured damages resulting from matters occurring subsequent to Closing.
9.8 Agreements
Regarding Taxes.
(a) Tax
Sharing Agreements.
Any tax
sharing agreement between Seller and Leasco is terminated as of the Closing
Date
and will have no further effect for any taxable year (whether the current year,
a future year, or a past year).
(b) Returns
for Periods Through the Closing Date.
Seller
will include the income and loss of Leasco (including any deferred income
triggered into income by Reg. §1.1502-13 and any excess loss accounts taken into
income under Reg. §1.1502-19) on Seller’s consolidated federal income tax
returns for all periods through the Closing Date and pay any federal income
taxes attributable to such income. Seller and Leasco agree to allocate income,
gain, loss, deductions and credits between the period up to Closing (the
“Pre-Closing Period”) and the period after Closing (the “Post-Closing Period”)
based on a closing of the books of Leasco and both Seller and Leasco agree
not
to make an election under Reg. §1.1502-76(b)(2)(ii) to ratably allocate the
year’s items of income, gain, loss, deduction and credit. Seller, Leasco and
Purchaser agree to report all transactions not in the ordinary course of
business occurring on the Closing Date after Purchaser’s purchase of the Shares
on Leasco’s tax returns to the extent permitted by Reg. §1.1502-76(b)(1)(ii)(B).
Purchaser agrees to indemnify Seller for any additional tax owed by Seller
(including tax owned by Seller due to this indemnification payment) resulting
from any transaction engaged in by Leasco during the Pre-Closing Period or
on
the Closing Date after Purchaser’s purchase of the Shares. Leasco will furnish
tax information to Seller for inclusion in Seller’s consolidated federal income
tax return for the period which includes the Closing Date in accordance with
Leasco’s past custom and practice.
(c) Audits.
Seller
will allow Leasco and its counsel to participate at Leasco’s expense in any
audits of Seller’s consolidated federal income tax returns to the extent that
such audit raises issues that relate to and increase the tax liability of
Leasco. Seller shall have the absolute right, in its sole discretion, to engage
professionals and direct the representation of Seller in connection with any
such audit and the resolution thereof, without receiving the consent of
Purchaser or Leasco or any other party acting on behalf of Purchaser or Leasco,
provided that Seller will not settle any such audit in a manner which would
materially adversely affect Leasco after the Closing Date unless such settlement
would be reasonable in the case of a person that owned Leasco both before and
after the Closing Date. In the event that after Closing any tax authority
informs the Purchaser or Leasco of any notice of proposed audit, claim,
assessment, or other dispute concerning an amount of taxes which pertain to
the
Seller, or to Leasco during the period prior to Closing, Purchaser or Leasco
must promptly notify the Seller of the same within 15 calendar days of the
date
of the notice from the tax authority. In the event Purchaser or Leasco does
not
notify the Seller within such 15 day period, Purchaser and Leasco, jointly
and
severally, will indemnify the Seller for any incremental interest, penalty
or
other assessments resulting from the delay in giving notice. To the extent
of
any conflict or inconsistency, the provisions of this Section
9.8
shall
control over the provisions of Section
11.2
below.
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(d) Cooperation
on Tax Matters.
Purchaser, Seller and Leasco shall cooperate fully, as and to the extent
reasonably requested by the other party, in connection with the filing of tax
returns pursuant to this Section and any audit, litigation or other proceeding
with respect to taxes. Such cooperation shall include the retention and (upon
the other party’s request) the provision of records and information which are
reasonably relevant to any such audit, litigation or other proceeding and making
employees available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder. Leasco shall
(i) retain all books and records with respect to tax matters pertinent to
Leasco relating to any taxable period beginning before the Closing Date until
the expiration of the statute of limitations (and, to the extent notified by
Seller, any extensions thereof) of the respective taxable periods, and to abide
by all record retention agreements entered into with any taxing authority,
and
(ii) give Seller reasonable written notice prior to transferring,
destroying or discarding any such books and records and, if the Seller so
requests, Purchaser agrees to cause Leasco to allow Seller to take possession
of
such books and records.
9.9 ERISA.
Effective as of the Closing Date, Leasco shall terminate its participation
in,
and withdraw from, all employee benefit plans sponsored by Seller, and Seller
and Purchaser shall cooperate fully in such termination and withdrawal. Without
limitation, Leasco shall be solely responsible for (i) all liabilities
under those employee benefit plans notwithstanding any status as an employee
benefit plan sponsored by Seller, and (ii) all liabilities for the payment
of vacation pay, severance benefits, and similar obligations, including, without
limitation, amounts which are accrued but unpaid as of the Closing Date with
respect thereto. Purchaser and Leasco acknowledge that Leasco is solely
responsible for providing continuation health coverage, as required under the
Consolidated Omnibus Reconciliation Act of 1985, as amended (“COBRA”), to each
person, if any, participating in an employee benefit plan subject to COBRA
with
respect to such employee benefit plan as of the Closing Date, including, without
limitation, any person whose employment with Leasco is terminated after the
Closing Date.
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X. TERMINATION.
This
Agreement may be terminated at, or at any time prior to, the Closing by mutual
written consent of Seller, Purchaser and Brasada.
If
this
Agreement is terminated as provided herein, it shall become wholly void and
of
no further force and effect and there shall be no further liability or
obligation on the part of any party except to pay such expenses as are required
of such party.
XI. INDEMNIFICATION.
11.1 Indemnification
by Purchaser.
Purchaser covenants and agrees to indemnify, defend, protect and hold harmless
Seller, and its officers, directors, employees, stockholders, agents,
representatives and affiliates (collectively, together with Seller, the “Seller
Indemnified Parties”) at all times from and after the date of this Agreement
from and against all losses, liabilities, damages, claims, actions, suits,
proceedings, demands, assessments, adjustments, costs and expenses (including
specifically, but without limitation, reasonable attorneys’ fees and expenses of
investigation), whether or not involving a third party claim and regardless
of
any negligence of any Seller Indemnified Party (collectively, “Losses”),
incurred by any Seller Indemnified Party as a result of or arising from
(i) any breach of the representations and warranties of Purchaser set forth
herein or in certificates delivered in connection herewith, (ii) any breach
or nonfulfillment of any covenant or agreement (including any other agreement
of
Purchaser to indemnify Seller set forth in this Agreement) on the part of
Purchaser under this Agreement, (iii) any debt, liability or obligation of
Leasco, (iv) the conduct and operations of the business of Leasco whether
before or after Closing, (v) claims asserted against Leasco whether before
or after Closing, or (vi) any federal or state income tax payable by Seller
and attributable to the transaction contemplated by this Agreement.
11.2 Third
Party Claims.
(a) Defense.
If any
claim or liability (a “Third-Party Claim”) should be asserted against any of the
Seller Indemnified Parties (the “Indemnitee”) by a third party after the Closing
for which Purchaser has an indemnification obligation under the terms of
Section
11.1,
then
the Indemnitee shall notify Purchaser and Leasco (the “Indemnitor”) within 20
days after the Third-Party Claim is asserted by a third party (said notification
being referred to as a “Claim Notice”) and give the Indemnitor a reasonable
opportunity to take part in any examination of the books and records of the
Indemnitee relating to such Third-Party Claim and to assume the defense of
such
Third-Party Claim and in connection therewith and to conduct any proceedings
or
negotiations relating thereto and necessary or appropriate to defend the
Indemnitee and/or settle the Claim. The expenses (including reasonable
attorneys’ fees) of all negotiations, proceedings, contests, lawsuits or
settlements with respect to any Third-Party Claim shall be borne by the
Indemnitor. If the Indemnitor agrees to assume the defense of any Third-Party
Claim in writing within 20 days after the Claim Notice of such Third-Party
Claim
has been delivered, through counsel reasonably satisfactory to Indemnitee,
then
the Indemnitor shall be entitled to control the conduct of such defense, and
any
decision to settle such Third-Party Claim, and shall be responsible for any
expenses of the Indemnitee in connection with the defense of such Third-Party
Claim so long as the Indemnitor continues such defense until the final
resolution of such Third-Party Claim. The Indemnitor shall be responsible for
paying all settlements made or judgments entered with respect to any Third-Party
Claim the defense of which has been assumed by the Indemnitor. Except as
provided on subsection (b) below, both the Indemnitor and the Indemnitee must
approve any settlement of a Third Party Claim. A failure by the Indemnitee
to
timely give the Claim Notice shall not excuse Indemnitor from any
indemnification liability except only to the extent that the Indemnitor is
materially and adversely prejudiced by such failure.
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(b) Failure
to Defend.
If the
Indemnitor shall not agree to assume the defense of any Third-Party Claim in
writing within 20 days after the Claim Notice of such Third-Party Claim has
been
delivered, or shall fail to continue such defense until the final resolution
of
such Third-Party Claim, then the Indemnitee may defend against such Third-Party
Claim in such manner as it may deem appropriate and the Indemnitee may settle
such Third-Party Claim on such terms as it may deem appropriate. The Indemnitor
shall promptly reimburse the Indemnitee for the amount of all settlement
payments and expenses, legal and otherwise, incurred by the Indemnitee in
connection with the defense or settlement of such Third-Party Claim. If no
settlement of such Third-Party Claim is made, then the Indemnitor shall satisfy
any judgment rendered with respect to such Third-Party Claim before the
Indemnitee is required to do so, and pay all expenses, legal or otherwise,
incurred by the Indemnitee in the defense against such Third-Party
Claim.
11.3 Non-Third-Party
Claims.
Upon
discovery of any claim for which Purchaser has an indemnification obligation
under the terms of Section
11.3
which
does not involve a claim by a third party against the Indemnitee, the Indemnitee
shall give prompt notice to Purchaser of such claim and, in any case, shall
give
Purchaser such notice within 30 days of such discovery. A failure by Indemnitee
to timely give the foregoing notice to Purchaser shall not excuse Purchaser
from
any indemnification liability except to the extent that Purchaser is materially
and adversely prejudiced by such failure.
11.4 Survival.
Except
as otherwise provided in this Section
11.4,
all
representations and warranties made by Purchaser, Leasco and Seller in
connection with this Agreement shall survive the Closing. Anything in this
Agreement to the contrary notwithstanding, the liability of all Indemnitors
under this Article
XI
shall
terminate on the third (3rd)
anniversary of the Closing Date, except with respect to (a) liability for
any item as to which, prior to the third (3rd)
anniversary of the Closing Date, any Indemnitee shall have asserted a Claim
in
writing, which Claim shall identify its basis with reasonable specificity,
in
which case the liability for such Claim shall continue until it shall have
been
finally settled, decided or adjudicated, (b) liability of any party for
Losses for which such party has an indemnification obligation, incurred as
a
result of such party’s breach of any covenant or agreement to be performed by
such party after the Closing, (c) liability of Purchaser for Losses
incurred by a Seller Indemnified Party due to breaches of their representations
and warranties in Article
III
of this
Agreement, and (d) liability of Purchaser for Losses arising out of
Third-Party Claims for which Purchaser has an indemnification obligation, which
liability shall survive until the statute of limitation applicable to any third
party’s right to assert a Third-Party Claim bars assertion of such
claim.
-12-
XII. MISCELLANEOUS.
12.1 Notices.
All
notices and communications required or permitted hereunder shall be in writing
and deemed given when received by means of the United States mail, addressed
to
the party to be notified, postage prepaid and registered or certified with
return receipt requested, or personal delivery, or overnight courier, as
follows:
(a) If
to
Seller, addressed to:
Foothills
Resources, Inc.
X.X.
Xxx
0000
Xxxxxxxxxxx,
XX 00000
Attn:
Xxxxxx X. Tower, Chief Executive Officer
Facsimile:
(000) 000-0000
With
a
copy to (which shall not constitute notice hereunder):
McGuireWoods
LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxx X. Xxxxx, Esq.
Facsimile:
(000) 000-0000
(b) If
to
Purchaser or Leasco, addressed to:
J.
Xxxx
Xxxxxx
0
Xxxxxxx
Xxxxx
Xxxxxx,
Xxxxxx, Xxxxxxx
Facsimile:
(000) 000000000
With
a
copy to (which shall not constitute notice hereunder):
Gottbetter
& Partners, LLP
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxx X. Xxxxxxxxxx, Esq.
(c) If
to
Brasada, addressed to:
Brasada
California, Inc.
X.X.
Xxx
0000
Xxxxxxxxxxx,
XX 00000
Attn:
Xxxxxx X. Tower, Chief Executive Officer
Facsimile:
(000) 000-0000
-13-
With
a
copy to (which shall not constitute notice hereunder):
McGuireWoods
LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxx X. Xxxxx, Esq.
Facsimile:
(000) 000-0000
or
to
such other address as any party hereto shall specify pursuant to this
Section
12.1
from
time to time.
12.2 Exercise
of Rights and Remedies.
Except
as otherwise provided herein, no delay of or omission in the exercise of any
right, power or remedy accruing to any party as a result of any breach or
default by any other party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed as a waiver of or acquiescence in
any
such breach or default, or of any similar breach or default occurring later;
nor
shall any waiver of any single breach or default be deemed a waiver of any
other
breach or default occurring before or after that waiver.
12.3 Time.
Time is
of the essence with respect to this Agreement.
12.4 Reformation
and Severability.
In case
any provision of this Agreement shall be invalid, illegal or unenforceable,
it
shall, to the extent possible, be modified in such manner as to be valid, legal
and enforceable but so as to most nearly retain the intent of the parties,
and
if such modification is not possible, such provision shall be severed from
this
Agreement, and in either case the validity, legality and enforceability of
the
remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
12.5 Further
Acts.
Seller,
Purchaser and Leasco shall execute any and all documents and perform such other
acts which may be reasonably necessary to effectuate the purposes of this
Agreement.
12.6 Entire
Agreement; Amendments.
This
Agreement contains the entire understanding of the parties relating to the
subject matter contained herein. This Agreement cannot be amended or changed
except through a written instrument signed by all of the parties hereto,
including Brasada. No provisions of this Agreement or any rights hereunder
may
be waived by any party without the prior written consent of
Brasada.
12.7 Assignment.
No
party may assign his or its rights or obligations hereunder, in whole or in
part, without the prior written consent of the other parties.
12.8 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without giving effect to principles of conflicts or choice
of
laws thereof.
12.9 Counterparts.
This
Agreement may be executed in one or more counterparts, with the same effect
as
if all parties had signed the same document. Each such counterpart shall be
an
original, but all such counterparts taken together shall constitute a single
agreement. In the event that any signature is delivered by facsimile
transmission, such signature shall create a valid and binding obligation of
the
party executing (or on whose behalf such signature is executed) the same with
the same force and effect as if such facsimile signature page was an original
thereof.
-14-
12.10 Section
Headings and Gender.
The
Section headings used herein are inserted for reference purposes only and shall
not in any way affect the meaning or interpretation of this Agreement. All
personal pronouns used in this Agreement shall include the other genders,
whether used in the masculine, feminine or neuter, and the singular shall
include the plural, and vice
versa,
whenever and as often as may be appropriate.
12.11 Specific
Performance; Remedies.
Each of
Seller, Purchaser and Leasco acknowledges and agrees that Brasada would be
damaged irreparably if any provision of this Agreement is not performed in
accordance with its specific terms or is otherwise breached. Accordingly, each
of Seller, Purchaser and Leasco agrees that Brasada will be entitled to seek
an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and its terms and
provisions in any action instituted in any court of the United States or any
state thereof having jurisdiction over the parties and the matter, subject
to
Section
12.8,
in
addition to any other remedy to which they may be entitled, at law or in equity.
Except as expressly provided herein, the rights, obligations and remedies
created by this Agreement are cumulative and in addition to any other rights,
obligations or remedies otherwise available at law or in equity, and nothing
herein will be considered an election of remedies.
12.12 Submission
to Jurisdiction; Process Agent; No Jury Trial.
(a) Each
party to the Agreement hereby submits to the jurisdiction of any state or
federal court sitting in the County of Los Angeles in the State of California,
in any action arising out of or relating to this Agreement and agrees that
all
claims in respect of the action may be heard and determined in any such court.
Each party to the Agreement also agrees not to bring any action arising out
of
or relating to this Agreement in any other court. Each party to the Agreement
agrees that a final judgment in any action so brought will be conclusive and
may
be enforced by action on the judgment or in any other manner provided at law
or
in equity. Each party to the Agreement waives any defense of inconvenient forum
to the maintenance of any action so brought and waives any bond, surety, or
other security that might be required of any other Party with respect
thereto.
(b) EACH
PARTY TO THE AGREEMENT HEREBY AGREES TO WAIVE HIS OR HER RIGHTS TO JURY TRIAL
OF
ANY DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER AGREEMENTS
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR ANY DEALINGS AMONG THEM
RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. The scope of this waiver
is
intended to be all encompassing of any and all actions that may be filed in
any
court and that relate to the subject matter of the transactions, including,
contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims. Each party to the Agreement hereby acknowledges that
this
waiver is a material inducement to enter into a business relationship and that
they will continue to rely on the waiver in their related future dealings.
Each
party to the Agreement further represents and warrants that it has reviewed
this
waiver with its legal counsel, and that each knowingly and voluntarily waives
its jury trial rights following consultation with legal counsel. NOTWITHSTANDING
ANYTHING TO THE CONTRARY HEREIN, THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY
NOT BE MODIFIED ORALLY OR IN WRITING, AND THE WAIVER WILL APPLY TO ANY
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR TO
ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING HERETO. In the event of commencement
of
any action, this Agreement may be filed as a written consent to trial by a
court.
-15-
12.13 Construction.
The
parties hereto have participated jointly in the negotiation and drafting of
this
Agreement. If an ambiguity or question of intent or interpretation arises,
this
Agreement will be construed as if drafted jointly by the parties hereto and
no
presumption or burden of proof will arise favoring or disfavoring any party
because of the authorship of any provision of this Agreement. Any reference
to
any federal, state, local, or foreign law will be deemed also to refer to law
as
amended and all rules and regulations promulgated thereunder, unless the context
requires otherwise. The words “include,” “includes,” and “including” will be
deemed to be followed by “without limitation.” The words “this Agreement,”
“herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to
this Agreement as a whole and not to any particular subdivision unless expressly
so limited. The parties hereto intend that each representation, warranty, and
covenant contained herein will have independent significance. If any party
hereto has breached any representation, warranty, or covenant contained herein
in any respect, the fact that there exists another representation, warranty
or
covenant relating to the same subject matter (regardless of the relative levels
of specificity) which that party has not breached will not detract from or
mitigate the fact that such party is in breach of the first representation,
warranty, or covenant.
[Signature
page follows this page.]
-16-
IN
WITNESS WHEREOF,
the
parties hereto have hereunto set their hands as of the day and year first above
written.
FOOTHILLS
RESOURCES, INC.
By:
/s/
J.
Xxxx Xxxxxx
Name: J.
Xxxx
Xxxxxx
Title: Chief
Executive Officer
LEASCO,
INC.
By: /s/
J.
Xxxx Xxxxxx
Name: J.
Xxxx
Xxxxxx
Title Chief
Executive Officer
PURCHASER
J.
Xxxx
Xxxxxx
/s
J.
Xxxx Xxxxxx
J.
Xxxx
Xxxxxx
BRASADA
CALIFORNIA, INC.
By:
/s/
Xxxxxx X. Tower
Name: Xxxxxx
X.
Tower
Title: Chief
Executive Officer
-17-
