EXHIBIT 10.2
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement (the "Amendment") is
entered into and effective this 10th day of June, 2004 by and between
MULTI-SHOT, LLC, a Texas limited liability company (the "Buyer"), and BLACK
WARRIOR WIRELINE CORP., a Delaware Corporation (the "Seller"). Buyer and Seller
may hereinafter sometimes be referred to together as the "Parties" or singularly
as a "Party."
W I T N E S S E T H :
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WHEREAS, the Seller and the Buyer have previously entered into that
certain Asset Purchase Agreement dated the 3rd day of June, 2004 (the
"Agreement"); and
WHEREAS, Section 8.4 of the Agreement contains a drafting error; and
WHEREAS, the Seller and the Buyer mutually wish to amend section 8.4 of
the Agreement to more accurately express the intentions of both Parties;
NOW, THEREFORE, for and in consideration of the mutual covenants,
agreements, representations and warranties contained in this Amendment, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and confessed, the Parties hereby agree as follows:
1. Section 8.4 of the Agreement is hereby deleted in its entirety and the
following substituted therefor:
"8.4 LIMITATIONS ON INDEMNIFICATION. Seller's and Buyer's aggregate
liability for indemnification obligations for breaches of
representations and warranties made pursuant to this Agreement shall be
as follows:
A. For breaches of representations and warranties made by Seller
pursuant to Sections 3.3 (Title), 3.4 (Taxes) and 3.30 (Environmental),
Seller shall not be obligated to indemnify Buyer for any amounts that,
when aggregated with all other indemnification claims paid by Seller
pursuant to this Article VII, exceed the Final Purchase Price;
B. For breaches of all other representations and warranties made
by Seller herein, Seller shall not be obligated to indemnify Buyer for
any amounts that, when aggregated with all other indemnification claims
pertaining to representations and warranties paid by Seller pursuant to
this Article VIII, exceed: (i) $5,000,000.00 with respect to any
claim(s) for Damages made during the first twelve (12) months following
the Effective Date, or (ii) $2,500,000 with respect to any claims for
Damages made during the second twelve (12) months following the
Effective Date; provided, however, that if a Seller Change of Control
Event is consummated at any time prior to the end of the second twelve
(12) months, then, upon the later of (a) the Change of Control Event or
(b) one (1) year following the Effective Date, the limitation shall be
reduced from $2,500,000 to zero dollars ($0) as to any subsequent
claims for Damages occurring thereafter; and
C. For breaches of all representations and warranties made by
Buyer herein, Buyer shall not be obligated to indemnify Seller for any
amounts that, when aggregated with all other indemnification claims
pertaining to representations and warranties paid by Buyer pursuant to
this Article VIII, exceed (i) $5,000,000.00 with respect to any
claim(s) for Damages made during the first twelve (12) months following
the Effective Date, or (ii) $2,500,000 with respect to any claim for
Damages made during the second twelve (12) months following the
Effective Date; provided, however, that if a Seller Change of Control
Event is consummated at any time prior to the end of the second twelve
(12) months, then, upon the later of (a) the Change of Control Event or
(b) one (1) year following the Effective Date, the limitation shall be
reduced from $2,500,000 to zero dollars ($0) as to any subsequent
claims for Damages occurring thereafter.
Buyer's and Seller's aggregate liability for a breach of any covenant
made herein shall not be subject to the limitations set forth in
Sections A, B and C above."
2. This Amendment may be executed in counterparts and each will be deemed an
original, but all such counterparts shall make up but one Amendment.
3. All remaining provisions of the Agreement not amended hereby shall remain in
full force and effect.
EXECUTED AND DELIVERED effective as of the date first written above.
BUYER:
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MULTI-SHOT, LLC,
a Texas limited liability company
By:
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Xxx Xxxxx
Manager
SELLER:
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BLACK WARRIOR WIRELINE CORP.
a Delaware corporation
By:
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Xxxxxxx X. Xxxxxxx
President & CEO
