March 31, 1997
Asset Purchase Agreement #2
This Asset Purchase Agreement (herein this "Agreement") is entered into as of
March 31, 1997, among WellTech Eastern, Inc., a Delaware corporation (herein
"Buyer"), Key Energy Group, Inc., a Maryland Corporation (herein "Key"), and
Kalkaska Construction Service, Inc., a Michigan Corporation, (herein the
"Seller"). Dennis Hogerheide, LaWenda Hogerheide, David Hogerheide and Derek
Hogerheide are referred to collectively herein as the "Shareholders" and
individually as a "Shareholder."
W I T N E S S E T H:
WHEREAS, the Seller desires to sell substantially all of its assets, and Buyer
desires to acquire such assets.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants and agreements, and subject to the terms
and conditions herein contained, the parties hereto hereby agree as follows:
I. Purchase and Sale of Assets
A. Purchase and Sale of the Assets. Subject to the terms and conditions set
forth in this Agreement, the Seller hereby agrees to sell, convey, transfer,
assign and deliver to Buyer all of the assets of the Seller and those parties
listed on Schedule 1.1(a) hereto, (herein "Affiliated Companies"), set forth
below (herein "Assets"): the tangible personal property set forth in Schedule
1.1(b) hereto.
A. Consideration for Assets. As consideration for the sale of the Assets to
Buyer and for the other covenants and agreements of the Seller and the
Shareholders contained herein:
Buyer agrees to pay to Seller on the date hereof the sum of Two Million Dollars
($2,000,000.00) in the form of a cashier's check or bank check or wire transfer
of immediately available funds to an account designated by the Seller (the "Cash
Consideration").
A. Liabilities. On the date hereof, the Sellers shall be responsible for all
liabilities and obligations of the Seller, without limitation, with respect to
the Assets as of the date hereof.
I. Representations and Warranties
of the Sellers and the Shareholder
Representations and Warrantiesof the Sellers and the Shareholder Representations
and Warranties of the Seller and the Shareholders. The Seller and each of the
Shareholders jointly and severally represent and warrant to Buyer as follows:
1. Organization and Good Standing. Seller and each Affiliated Company is a
corporation duly organized, validly existing and in good standing under the laws
of its state of organization, has full requisite corporate power and authority
to carry on its business as it is currently conducted, and to own and operate
the properties currently owned and operated by it, and is duly qualified or
licensed to do business and is in good standing as a foreign corporation
authorized to do business in all jurisdictions in which the character of the
properties owned or the nature of the business conducted by it would make such
qualification or licensing necessary except where the failure to so qualify
would not have a material adverse effect on the business of Seller.
1. Agreements Authorized and their Effect on Other Obligations. The execution
and delivery of this Agreement have been authorized by all necessary corporate
and shareholder action on the part of the Seller and Affiliated Companies, and
this Agreement is the valid and binding obligation of the Seller and each of the
Shareholders enforceable (subject to normal equitable principals) against each
of such parties in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, debtor relief or similar laws
affecting the rights of creditors generally. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, will not conflict with or result in a violation or breach
of any term or provision of, nor constitute a default under (i) the charter or
bylaws (or other organizational documents) of the Seller or Affiliated
Companies, (ii) any obligation, indenture, mortgage, deed of trust, lease,
contract or other agreement to which the Seller, Affiliated Companies or the
Shareholders is a party or by which the Seller, Affiliated Companies or the
Shareholders or their respective properties are bound; or (iii) any provision of
any law, rule, regulation, order, permits, certificate, writ, judgment,
injunction, decree, determination, award or other decision of any court,
arbitrator, or other governmental authority to which the Seller, Affiliated
Companies or the Shareholders or any of their respective properties are subject.
Schedule 2.1.2. hereto contains a complete list of all shareholders of Seller as
of the Closing Date.
1. Title to and Condition of Assets. The Seller has good, indefeasible and
marketable title to all of the Assets, free and clear of any Encumbrances
(defined below). All of the Assets are in a state of good operating condition
and repair, ordinary wear and tear excepted, and are free from any known defects
except (i) as may be repaired by routine maintenance and such minor defects as
to not substantially interfere with the continued use thereof in the conduct of
normal operations, or (ii) as otherwise set forth in the Appraisal by Superior
Appraisals dated July 23, 1996, or (iii) if the Asset is not included in the
Appraisal by Superior Appraisals dated July 23, 1996, then such Asset is
acquired in an "as is" condition. All of the Assets conform to all applicable
laws governing their use. Except as set forth on Schedule 2.1.3 hereto, no
notice of any violation of any law, statute, ordinance, or regulation relating
to any of the Assets has been received by the Seller, any of the Affiliated
Companies or any of the Shareholders, except such as have been fully complied
with. The term "Encumbrances" means all liens, security interests, pledges,
mortgages, deeds of trust, claims, rights of first refusal, options, charges,
restrictions or conditions to transfer or assignment, liabilities, obligations,
privileges, equities, easements, rights of way, limitations, reservations,
restrictions, and other encumbrances of any kind or nature.
1. Bulk Sales Act Not Applicable. Neither the Seller nor any of the Affiliated
Companies are, or were, in the business of selling merchandise from stock or
manufacturing what it sells.
1. Absence of Certain Changes and Events. Other than as a result of the
transactions contemplated by this Agreement and except as set forth in Schedule
2.1.5 hereto, since the Balance Sheet Date, there has not been:
(1) Financial Change. Any adverse change in the Assets, the Businesses or the
financial condition, operations, liabilities or prospects of the Seller;
(1) Property Damage. Any damage, destruction, or loss to any of the Assets or
the Businesses (whether or not covered by insurance);
(1) Waiver. Any waiver or release of a material right of or claim held by the
Seller;
(1) Change in Assets. Any acquisition, disposition, transfer, encumbrance,
mortgage, pledge or other encumbrance of any asset of the Seller other than in
the ordinary course of business;
(1) Labor Disputes. Any labor disputes between the Seller and its employees; or
(1) Other Changes. Any other event or condition known to the Seller or any of
the Shareholders that particularly pertains to and has or might have an adverse
effect on the Assets, the operations of the Businesses or the financial
condition or prospects of the Seller.
1. Necessary Consents. The Seller has obtained and delivered to Buyer all
consents to assignment or waivers thereof required to be obtained from any
governmental authority or from any other third party in order to validly
transfer the Assets hereunder.
2. Environmental Matters. None of the current or past operations of the
Businesses of the Seller or any of the Assets are being or have been conducted
or used in such a manner as to constitute a violation of any Applicable
Environmental Laws (defined below), except to the extent that the Seller caused
the environmental conditions as set forth in Schedule 2.1.7 (a). Neither the
Seller nor any of the Affiliated Companies nor any of the Shareholders have
received any notice (whether formal or informal, written or oral) from any
entity, governmental agency or individual regarding any existing, pending or
threatened investigation or inquiry related to violations of any Applicable
Environmental Laws or regarding any claims for remedial obligations or
contribution for removal costs or damages under any Applicable Environmental
Laws. There are no writs, injunction decrees, orders or judgments outstanding,
or lawsuits, claims, proceedings or investigations pending or, to the knowledge
of the Seller, any of the Affiliated Companies or any of the Shareholders,
threatened relating to the ownership, use, maintenance or operation of the
Assets or the conduct of the Businesses, nor, to the knowledge of the Seller,
any of the Affiliated Companies or any of the Shareholders, is there any basis
for any of the foregoing. Buyer is not required to obtain any permits, licenses
or similar authorizations pursuant to any Applicable Environmental Laws in
effect as of the date hereof to operate and use any of the Assets for their
current or proposed purposes and uses. To the knowledge of the Seller, any of
the Affiliated Companies or any of the Shareholders, the Assets include all
environmental and pollution control equipment necessary for compliance with all
Applicable Environmental Laws. Except as set forth in Schedule 2.1.7 (b) hereto,
no Hazardous Materials (defined below) have been or are currently being used by
the Seller or any of the Affiliated Companies in the operation of the Assets.
Except as set forth in Schedule 2.1.7 (b) hereto, no Hazardous Materials are or
have ever been situated on or under any of the properties of Seller or any of
the Affiliated Companies, whether owned or leased, or incorporated into any of
the Assets. Except as set forth in Schedule 2.1.7 (b) hereto, to the knowledge
of the Seller, any of the Affiliated Companies or any of the Shareholders, there
are no, and there have never been any, underground storage tanks (as defined
under Applicable Environmental Laws) located under any of the properties of
Seller or any of the Affiliated Companies, whether owned or leased. The term
"Applicable Environmental Laws" means any applicable federal, state or local
law, statute, ordinance, rule, regulation, order or notice requirement
pertaining to human health, the environment, or to the storage, treatment,
discharge, release or disposal of hazardous wastes or hazardous substances,
including, without limitation (i) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. ss.ss.9601 et seq.), as
amended from time to time, including, without limitation, as amended pursuant to
the Superfund Amendments and Reauthorization Act of 1986 ("CERCLA"), and
regulations promulgated thereunder, (ii) the Resources Conservation and Recovery
Act of 1976 (42 U.S.C. ss.ss.6901 et seq.), as amended from time to time
("RCRA"), and regulations promulgated thereunder, (iii) the Federal Water
Pollution Control Act (U.S.C.A. ss.9601 et seq.), as amended, and regulations
promulgated thereunder, and (iv) any applicable state laws or regulations
relating to the environment. The term "Hazardous Materials" means (x) asbestos,
polychlorinated biphenyls, urea formaldehyde, lead based paint, radon gas,
petroleum, oil, solid waste, pollutants and contaminants, and (y) any chemicals,
materials, wastes or substances that are defined, regulated, determined or
identified as toxic or hazardous in any Applicable Environmental Laws,
including, but not limited to, substances defined as "hazardous substances,"
"hazardous materials," or "hazardous waste" in CERCLA, RCRA, the Hazardous
Materials Transportation Act (49 U.S.C. ss. 1801, et seq.), or comparable state
and local statutes or in the regulations adopted and publications promulgated
pursuant to said statutes.
1. Investigations; Litigation. No investigation or review by any governmental
entity with respect to the Seller or any of the Affiliated Companies or any of
the transactions contemplated by this Agreement is pending or, to the knowledge
of the Seller, any of the Affiliated Companies or any of the Shareholders,
threatened, nor has any governmental entity indicated to the Seller, any of the
Affiliated Companies or any of the Shareholders an intention to conduct the
same. Except as set forth in Schedule 2.1.8 hereto, there is no suit, action, or
legal, administrative, arbitration, or other proceeding or governmental
investigation pending to which the Seller, any of the Affiliated Companies or
any of the Shareholders is a party or, to the knowledge of the Seller, any of
the Affiliated Companies or any of the Shareholders, might become a party or
which particularly affects the Assets. Neither Seller nor any of the Affiliated
Companies nor any of the Shareholders know of any claims that any of its
officers, employees or agents have violated any state or federal civil rights
law including the Michigan Elliott-Larsen Civil Rights Act.
1. Absence of Certain Business Practices. Neither Seller nor any of the
Affiliated Companies nor any officer, employee or agent of the Seller or any of
the Affiliated Companies, or any other person acting on behalf of the Seller or
any of the Affiliated Companies, have, directly or indirectly, within the past
five years, given or agreed to give any gift or similar benefit to any customer,
supplier, government employee or other person who is or may be in a position to
help or hinder the profitable conduct of the Businesses or the profitable use of
the Assets, (or to assist the Seller or any of the Affiliated Companies in
connection with any actual or proposed transaction) which if not given in the
past, might have had a material adverse effect on the profitable conduct of the
Businesses or the profitable use of the Assets, or if not continued in the
future, might materially adversely affect the profitable conduct of the
Businesses or the profitable use of the Assets.
1. Solvency. The Seller is not now insolvent, nor will the Seller be rendered
insolvent by the occurrence of the transactions contemplated by this Agreement.
The term "insolvent", with respect to the Seller, means that the sum of the
present fair and saleable value of Seller's assets does not and will not exceed
its debts and other probable liabilities, and the term "debts" includes any
legal liability whether matured or unmatured, liquidated or unliquidated,
absolute fixed or contingent, disputed or undisputed or secured or unsecured.
1. Untrue Statements. The Seller has made available to Buyer true, complete and
correct copies of all contracts, documents concerning all litigation and
administrative proceedings, licenses, permits, insurance policies, lists of
suppliers and customers, and records relating principally to the Businesses and
the Assets, and such information covers all commitments and liabilities of Buyer
relating principally to the Businesses and the Assets. This Agreement does not
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements made herein and therein not misleading in
any material respect.
1. Prior Owners of Assets. At closing all of the Assets will be conveyed by
Seller to Buyer. The name of each business entity (together with its Federal
I.D. #) affiliated with Seller or any of the Shareholders that during the past
six years owned any of the Assets to be conveyed to Buyer are:
Kalkaska Production, Inc. 38-2451482
Kalkaska Oilfield Services, Inc. 38-3083604
BMG 38-2916483
W & J Enterprises, Inc. 38-2836574
Kalkaska Consolidated Crane, Inc. 38-3228156
1. Finder's Fee. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Seller, the
Shareholders and their counsel directly with Buyer and its counsel, without the
intervention of any other person in such manner as to give rise to any valid
claim against any of the parties hereto for a brokerage commission, finder's fee
or any similar payment.
I. Representations and Warranties of Buyer and
Key
A. Representations and Warranties of Buyer. Buyer represents and warrants to
Seller and the Shareholders as follows:
1. Organization and Standing. Buyer is a corporation duly organized, validly
existing, and in good standing under the laws of Delaware, has full requisite
corporate power and authority to carry on its business as it is currently
conducted, and to own and operate the properties currently owned and operated by
it, and is duly qualified or licensed to do business and is in good standing as
a foreign corporation authorized to do business in all jurisdictions in which
the character of the properties owned or the nature of the business conducted by
it would make such qualification or licensing necessary except where the failure
to so qualify would not have a material adverse affect on the business of Buyer.
1. Agreement Authorized and its Effect on Other Obligations. The execution and
delivery of this Agreement have been authorized by all necessary corporate
action on the part of Buyer, and this Agreement is the valid and binding
obligation of Buyer, enforceable (subject to normal equitable principals)
against Buyer in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, debtor relief or similar laws
affecting the rights of creditors generally. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not conflict with or result in a violation or breach of
any term or provision of, nor constitute a default under (i) the charter or
bylaws of Buyer; (ii) any obligation, indenture, mortgage, deed of trust, lease,
contract or other agreement to which Buyer is a party or by which Buyer or its
properties are bound; or (iii) any provision of any law, rule, regulation,
order, permits, certificate, writ, judgment, injunction, decree, determination,
award or other decision of any court, arbitrator or other governmental authority
to which Buyer or any of its properties are subject.
1. Finder's Fee. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Buyer and its counsel
directly with Seller, the Shareholders and their counsel, without the
intervention of any other person as the result of any act of Buyer in such a
manner as to give rise to any valid claim against any of the parties hereto for
any brokerage commission, finder's fee or any similar payment.
A. Representations and Warranties of Key. Key represents and warrants to Seller
and each of the Shareholders as follows:
1. Organization and Standing. Key is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland, has full
requisite corporate power and authority to carry on its business as it is
currently conducted, and to own and operate the properties currently owned and
operated by it, and is duly qualified or licensed to do business and is in good
standing as a foreign corporation authorized to do business in all jurisdictions
in which the character of the properties owned or the nature of the business
conducted by it would make such qualification or licensing necessary except
where the failure to so qualify would not have a material adverse affect on the
business of Buyer.
1. Agreement Authorized and its Effect on Other Obligations. The execution and
delivery of this have been authorized by all necessary corporate action on the
part of Key, and this Agreement is the valid and binding obligation of Key,
enforceable (subject to normal equitable principals) against Key in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, debtor relief or similar laws affecting the rights
of creditors generally. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not
conflict with or result in a violation or breach of any term or provision of,
nor constitute a default under (i) the charter or bylaws of Key; (ii) any
obligation, indenture, mortgage, deed of trust, lease, contract or other
agreement to which Key is a party or by which Key or its properties are bound;
or (iii) any provision of any law, rule, regulation, order, permits,
certificate, writ, judgment, injunction, decree, determination, award or other
decision of any court, arbitrator or other governmental authority to which Key
or any of its properties is subject.
1. Finder's Fee. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Key and its counsel
directly with Seller, the Shareholders and their counsel, without the
intervention by any other person as the result of any act of Key in such a
manner as to give rise to any valid claim against any of the parties hereto for
any brokerage commission, finder's fee or any similar payments.
I. Closing
A. Closing Date. Consummation of the sale and the purchase contemplated by this
Agreement shall take place on the date hereof at the offices of Brandt, Fisher,
Alward & Roy, P.C.
A. Duties of Seller and the Shareholders at Closing. Contemporaneously with the
performance by Buyer and Key of their obligations to be performed at the
Closing, Seller and each of the Shareholders agree to, and shall deliver to
Buyer at the Closing the following:
(1) Bills of Sale conveying all of the Assets to Buyer sufficient to convey,
transfer to, and vest in Buyer, good and marketable title to all rights in the
Assets, free and clear of any and all Encumbrances;
(1) Duly endorsed Certificates of Title conveying from Seller to Buyer all of
those Assets for which a Certificate of Title is issued or required by an
applicable governmental entity sufficient to convey, transfer to, and vest in
Buyer, good and marketable title to all rights in those Assets, free and clear
of any and all Encumbrances;
(1) A legal opinion from Seller's counsel in a form acceptable to Buyer; and
(1) Such other items that Buyer deems necessary or convenient to effect the
transactions contemplated hereby.
A. Duties of Buyer and Key at Closing. Contemporaneously with the performance by
Seller and each of the Shareholders of their obligations to be performed at the
Closing, Buyer and Key agree to, and shall deliver to Seller at the Closing the
following:
(1) The Cash Consideration;
(1) A legal opinion from Buyer's counsel in a form acceptable to Seller; and
(1) Such other items that Seller deems necessary or convenient to effect the
transactions contemplated hereby.
I. Additional Agreements
Additional Agreements Allocation of Purchase Price. The parties hereto agree to
allocate the purchase price paid by Buyer for the Assets hereunder as set forth
on Schedule 5.1 hereto, and shall report this transaction for federal income tax
purposes in accordance with the allocation so agreed upon. The parties hereto
for themselves and for their respective successors and assigns covenant and
agree that they will file coordinating Form 8594's in accordance with Section
1060 of the Internal Revenue Code of 1986, as amended, with their respective
income tax returns for the taxable year that includes the date hereof.
A. Possession of Tangible Personal Property and Inventories. Possession of the
Assets shall be deemed to have passed from Seller to Buyer on the date hereof.
All Tangible Personal Property and Inventories shall be delivered on the date
hereof to Buyer at Seller's sole cost and expense.
A. Proration of Expenses. The parties further agree that the following
obligations shall be prorated as follows:
(1) All utility charges incurred by Sellers in the Businesses prior to the date
of Closing shall be paid by Seller. The Buyer shall be responsible for the
utility charges incurred by the Assets and/or Businesses purchased by Buyer
after the date hereof.
(1) The Seller shall pay a prorata share of the personal property taxes for the
Assets sold by the Seller to Buyer for all years prior to the Closing and a
prorata share of all such taxes for 1997, prorated to the date hereof, in
accordance with the standards of practice in Kalkaska County, Michigan. If the
actual taxes for the current year are not known as of the date hereof, the
apportionment of taxes shall be upon the basis of taxes for the immediate
preceding year, provided that, if taxes for the current year are thereafter
determined to be more or less for the taxes for the preceding year (after any
appeal of the assessed valuation thereof is concluded), Seller and Buyer
promptly shall adjust the proration of such taxes and Seller and/or Buyer, as
the case may be, shall pay to the other any amount required as a result of such
adjustment and as a covenant shall survive the Closing.
(1) The Seller shall pay all taxes, whether federal, state or local, assessed
against the Assets or the Businesses for that period of time prior to the date
hereof, including any and all sales taxes, use taxes, unemployment compensation
taxes or taxes arising out of the fact that Seller hired employees.
(1) All other costs or expenses arising out of the Assets or the Businesses
prior to the date hereof.
A. Further Assurances. From time to time, as and when requested by any party
hereto, any other party hereto shall execute and deliver, or cause to be
executed and delivered, such documents and instruments and shall take, or cause
to be taken, such further or other actions as may be reasonably necessary to
effect the transactions contemplated hereby.
I. Indemnification
Indemnification Indemnification by the Seller and the Shareholders. In addition
to any other remedies available to Buyer under this Agreement, or at law or in
equity, the Seller and each of the Shareholders shall, jointly and severally,
indemnify, defend and hold harmless Buyer and its officers, directors,
employees, agents and stockholders, against and with respect to any and all
claims, costs, damages, losses, expenses, obligations, liabilities, recoveries,
suits, causes of action and deficiencies, including interest, penalties and
reasonable attorneys' fees and expenses (collectively, the "Damages") that such
indemnitee shall incur or suffer, which arise, result from or relate to (i) any
breach of, or failure by the Seller, any of the Affiliated Companies or any of
the Shareholders to perform, their respective representations, warranties,
covenants or agreements in this Agreement or in any schedule, certificate,
exhibit or other instrument furnished or delivered to Buyer by the Seller, the
Affiliated Companies or each of the Shareholders under this Agreement; and (ii)
the Retained Liabilities. Notwithstanding these provisions, the Buyer shall have
no claim against the Seller or the Shareholders for the first Ten Thousand
Dollars worth of Damages pursuant to this Section 8.1. In addition, the Seller
and the Shareholders' total liability for Damages pursuant to this Section 8.1
shall not exceed Eight Million Eight Hundred Thousand Dollars (herein
"Indemnification Cap"). In determining if the Indemnification Cap has been
reached, Seller and Shareholders shall be entitled to aggregate any
indemnification paid by Seller or Shareholders pursuant to (a) this Agreement,
(b) a separate Asset Purchase Agreement between Buyer and Kalkaska Construction
Service, Inc. dated March 31, 1997, and closed simultaneously with this
Agreement, and (c) a Stock Purchase Agreement between the Buyer and Shareholders
dated March 31, 1997, and closed simultaneously with this Agreement.
A. Indemnification by Buyer and Key. In addition to any other remedies available
to Seller under this Agreement, or at law or in equity, Buyer and Key shall,
jointly and severally, indemnify, defend and hold harmless each of the
Shareholders and the Seller and its officers, directors, employees and agents
against and with respect to any and all Damages that such indemnitees shall
incur or suffer, which arise, result from or relate to any breach of, or failure
by Buyer or Key to perform any of its representations, warranties, covenants or
agreements in this Agreement or in any schedule, certificate, exhibit or other
instrument furnished or delivered to Seller by or on behalf of Buyer or Key
under this Agreement.
A. Indemnification Procedure. If any party hereto discovers or otherwise becomes
aware of an indemnification claim arising under Section 6.1 or 6.2 of this
Agreement, such indemnified party shall give written notice to the indemnifying
party, specifying such claim, and may thereafter exercise any remedies available
to such party under this Agreement; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of any obligations hereunder, to the extent the indemnifying
party is not materially prejudiced thereby. Further, promptly after receipt by
an indemnified party hereunder of written notice of the commencement of any
action or proceeding with respect to which a claim for indemnification may be
made pursuant to this Article 6, such indemnified party shall, if a claim in
respect thereof is to be made against any indemnifying party, give written
notice to the latter of the commencement of such action; provided, however, that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of any obligations hereunder, to the extent the
indemnifying party is not materially prejudiced thereby. In case any such action
is brought against an indemnified party, the indemnifying party shall be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified, to the extent that it may wish,
with counsel reasonably satisfactory to such indemnified party, and after such
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof unless the indemnifying party
has failed to assume the defense of such claim and to employ counsel reasonably
satisfactory to such indemnified person. An indemnifying party who elects not to
assume the defense of a claim shall not be liable for the fees and expenses of
more than one counsel in any single jurisdiction for all parties indemnified by
such indemnifying party with respect to such claim or with respect to claims
separate but similar or related in the same jurisdiction arising out of the same
general allegations. Notwithstanding any of the foregoing to the contrary, the
indemnified party will be entitled to select its own counsel and assume the
defense of any action brought against it if the indemnifying party fails to
select counsel reasonably satisfactory to the indemnified party, the expenses of
such defense to be paid by the indemnifying party. No indemnifying party shall
consent to entry of any judgment or enter into any settlement with respect to a
claim without the consent of the indemnified party, which consent shall not be
unreasonably withheld, or unless such judgment or settlement includes as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability with respect to such claim. No
indemnified party shall consent to entry of any judgment or enter into any
settlement of any such action, the defense of which has been assumed by an
indemnifying party, without the consent of such indemnifying party, which
consent shall not be unreasonably withheld.
I. Miscellaneous
A. Survival of Representations, Warranties and Covenants. All representations,
warranties, covenants and agreements made by the parties hereto shall survive
indefinitely without limitation, notwithstanding any investigation made by or on
behalf of any of the parties hereto. All statements contained in any
certificate, schedule, exhibit or other instrument delivered pursuant to this
Agreement shall be deemed to have been representations and warranties by the
respective party or parties, as the case may be, and shall also survive without
limitation despite any investigation made by any party hereto or on its behalf.
A. Entirety. This Agreement embodies the entire agreement among the parties with
respect to the subject matter hereof, and all prior agreements between the
parties with respect thereto are hereby superseded in their entirety.
A. Counterparts. Any number of counterparts of this Agreement may be executed
and each such counterpart shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one instrument.
A. Notices and Waivers. Any notice or waiver to be given to any party hereto
shall be in writing and shall be delivered by courier, sent by facsimile
transmission or first class registered or certified mail, postage prepaid,
return receipt requested.
If to Buyer
Addressed to: With a copy to:
WellTech Eastern, Inc. Key Energy Group, Inc.
Kenneth C. Hill Two Tower Center, Tenth Floor
5976 Venture Way East Brunswick, New Jersey 08816
Mt. Pleasant, Michigan 48858 Attn: General Counsel
Facsimile: (517) 773-0229 Facsimile: (908) 247-5148
and
Steven W. Martineau
Lynch, Gallagher, Lynch &
Martineau, P.L.L.C.
555 N. Main St., P.O. Box 446
Mt. Pleasant, Michigan 48804-0446
Facsimile: (517) 773-2107
If to a Seller or a Shareholder
Addressed to: With a copy to:
Kalkaska Construction, Inc. Donald Brandt
418 S. Maple Brandt, Fisher, Alward & Roy, P.C.
Kalkaska, Michigan 49646 401 Munson Avenue, P.O. Box 5817
Attn: Dennis Hogerheide Traverse City, Michigan 49696-5817
Facsimile: (616) 258-6113 Facsimile: (616) 941-9568
Any communication so addressed and mailed by first-class registered or certified
mail, postage prepaid, with return receipt requested, shall be deemed to be
received on the third business day after so mailed, and if delivered by courier
or facsimile to such address, upon delivery during normal business hours on any
business day.
A. Captions. The captions contained in this Agreement are solely for convenient
reference and shall not be deemed to affect the meaning or interpretation of any
article, section, or paragraph hereof.
A. Successors and Assigns. This Agreement shall be binding upon and shall inure
to the benefit of and be enforceable by the successors and assigns of the
parties hereto.
A. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
A. Applicable Law. This Agreement shall be governed by and construed and
enforced in accordance with the applicable laws of the State of Michigan.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the Shareholders have executed this Agreement and the other
parties hereto have caused this Agreement to be signed in their respective
corporate names by their respective duly authorized representatives, all as of
the day and year first above written.
WELLTECH EASTERN, INC.
By:
Name:
Title:
KEY ENERGY GROUP, INC.
By:
Name:
Title:
KALKASKA CONSTRUCTION SERVICE, INC.
By:
Name:
Title:
THE SHAREHOLDERS:
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Dennis Hogerheide
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LaWenda Hogerheide
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David Hogerheide
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Derek Hogerheide
SCHEDULE 1.1(a)
Affiliated Companies
Kalkaska Production, Inc.
BMG, Inc.
W & J Enterprises, Inc.
SCHEDULE 1.1(b)
Assets
SCHEDULE 2.1.2
List of Shareholders
Dennis Hogerheide, LaWenda Hogerheide, David Hogerheide and Derek Hogerheide
SCHEDULE 2.1.3
Condition of Assets
None.
SCHEDULE 2.1.5
Changes
None except as otherwise set forth in any Schedule to this Asset Purchase
Agreement.
SCHEDULE 2.1.7(a)
Environmental Conditions
None except as set forth in Schedule 3.20 attached to a Stock Purchase Agreement
between the Buyer and the Shareholders, said Stock Purchase Agreement being
closed simultaneously with this Asset Purchase Agreement.
SCHEDULE 2.1.7(b)
Hazardous Materials Being Used by Seller
None except that the Seller hauls brine and other oilfield related substances
which may or may not contain Hazardous Materials.
SCHEDULE 2.1.8
Investigations/Litigation
None.
SCHEDULE 5.1
Allocation of the Purchase Price