Asset Purchase Agreement
among
WellTech Eastern, Inc.,
Southwest Oilfield Service, Inc.,
David Wright and
Roy Wofford
May 29, 1997
2
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into as of May
29, 1997 (the "Effective Date") among WellTech Eastern, Inc., a Delaware
corporation ("Buyer"), Southwest Oilfield Service, Inc., an Oklahoma corporation
("Seller"), David Wright and Roy Wofford, owners of all of the issued and
outstanding stock of the Seller (the "Shareholders").
WITNESSETH:
WHEREAS, Seller desires to sell substantially all of Seller's assets used
in or in connection with oilfield workover, completion. production maintenence
service (workover rig service) and Buyer desires to purchase 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:
Article I
Purchase and Sale of Assets
1.1 Purchase and Sale of the Assets.. Subject to the terms and conditions
set forth in this Agreement, Seller hereby agrees to sell, convey, transfer,
assign and deliver to Buyer, and Buyer hereby agrees to purchase from Seller,
substantially all of the assets of Seller used or useful in the Workover Rig
Service existing on the date hereof, whether personal, tangible, or intangible,
including the following assets of Seller relating to or used or useful in the
operation of the Workover Rig Service Business of Seller as conducted by Seller
on and before the date hereof (the "Business") (all such assets being sold
hereunder are referred to collectively herein as the "Assets"):
(a) the tangible personal property of Selle used or useful in performing
Workover Rig Sevicer (such as machinery, equipment, leasehold improvements,
furniture and fixtures, and vehicles) which is more fully described on Schedule
1.1(a) hereto (collectively, the "Tangible Personal Property");
(b) certain of Seller's intangible assets (collectively, the
"Intangibles"), including (i) all of Seller's rights to any patents, copyrights,
trademarks, service marks, licenses or sublicenses, trade names, written
know-how, trade secrets and all other similar proprietary data and the goodwill
associated therewith (collectively, the "Intellectual Property") used or held in
connection with the Workover Rig Service, including those specifically listed on
Schedule 1.1(c) hereto (collectively, the "Seller Intellectual Property"), and
(ii) all of Seller's rights in its sales and promotional literature, computer
software, customer and supplier list in connection with Sellers Workover Rig
Service Business
(c) those leases, subleases, contracts, contract rights, and agreements,
(collectively, the "Contracts") relating to the operation of the Workover Rig
Service Business, specifically listed on Schedule 1.1(d) hereto (collectively,
the Transferred "Contracts");
(d) to the extent transferrable, all permits, authorizations, certificates,
approvals, registrations, variances, waivers, exemptions, rights-of-way,
franchises, ordinances, licenses and other rights of every kind and character
(collectively, the "Permits") of Seller obtained from governments and
governmental agencies relating to including, without limitation, that which is
more fully described on Schedule 1.1(e) hereto (collectively, the "Seller
Permits"); and,
(e) the goodwill and going concern value of the Workover Rig Service
Business.
The Assets shall not include the following (collectively, the "Excluded
Assets"); (I) all of Seller's accounts receivable and all other rights of Seller
to payment for services rendered by Seller prior to midnight of the date hereof
(the "Seller Receivables"); (ii) all cash accounts, cash equivalents or similar
investments of Seller and all petty cash of Seller kept on hand for use in the
Workover Rig Service Business; (iii) all right, title and interest of Seller in
and to all prepaid rentals, other prepaid expenses, prepaid taxes, bonds,
deposits and financial assurance requirements, and other current assets relating
to any of the Assets of the Business; (iv) the corporate charter, corporate
seal, organizational documents and minute books of Seller; (v) all assets in
possession of Seller but owned by third parties; (vi) all rights under the
Contracts of Seller not specifically assigned to Buyer hereunder; and (viii)
Seller's right, title and interest in and to this Agreement; (ix) the right to
prosecute and collect claims relating to Workover Rig Service business of Seller
prior to the date hereof.
1.2 Consideration for Assets. As consideration for the sale of the Assets
to Buyer and for the other covenants and agreements of Seller contained herein,
Buyer (I) agrees to pay to Seller, on the date hereof, the amount of $455,000 in
the form of a cashier's check or bank check or wire transfer of immediately
available funds to an account designated by Seller.
1.3 Assumed Liabilities. Buyer shall assume only those liabilities of
Seller associated with Buyer's assumption of the Transferred Contracts. Seller
shall be responsible for all other liabilities of Seller (collectively, the
"Retained Liabilities"), including, without limitation all obligations and
liabilities owed by Seller to the Employees (as defined in Section 2.1.10
hereof).
Article II
Representations and Warranties
of Seller and the Shareholders
2.1 Representations and Warranties of Seller. Each of Seller and the
Shareholders jointly and severally represent and warrant to Buyer as follows:
2.1.1. Organization and Good Standing. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its 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 or be licensed would
not have a material adverse effect on the Assets or theWorkover Rig Service
Business.
2.1.2. Agreements Authorized and their Effect on Other Obligations. The
execution and delivery of this Agreement and all other agreements executed by
Seller or the Shareholders and delivered to Buyer in connection herewith (the
"Seller Agreements") have been authorized by all necessary corporate action on
the part of Seller, and this Agreement and the Seller Agreements are valid and
binding obligations of Seller and Shareholders, as applicable, enforceable
(subject to normal equitable principals) against such parties in accordance with
their 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
Seller Agreements and the consummation of the transaction contemplated hereby
and thereby, 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 Seller, (ii) any obligation, indenture, mortgage, deed of trust, lease,
contract or other agreement to which Seller or Shareholders is a party or by
which Seller or 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 Seller or
Shareholders or any of their respective properties are subject.
2.1.3. Financial Statement; Absence of Certain Changes and Events. Seller
has delivered to Buyer copies of certain unaudited financial statements of
Seller. Such financial statements are attached hereto as Schedule 2.1.3
(collectively, the "Seller Financial Statements") and include Seller's Statement
of Revenue and Expenses dated December 31, 1996 and March 31, 1997. The Seller
Financial Statements present fairly and fully the financial condition of the
Seller as at the dates and for the periods indicated thereon, subject, in the
case of interim financial statements, to normal year end adjustments. Other than
as a result of the transactions contemplated by this Agreement, since March 31,
1997, there has not been (whether as a result of a single event or in the
aggregate): (a) Financial Change. Any material adverse change in the Assets, the
Business or the financial condition, operations, liabilities or prospects of
Seller; (b) Property Damage. Any material damage, destruction, or loss to any of
the Assets or the Business (whether or not covered by insurance); (c) Waiver.
Any waiver or release of a material right of or claim held by Seller; (d) Change
in Assets. Any acquisition, disposition, transfer, encumbrance, mortgage, pledge
or other encumbrance of any material asset of Seller other than in the ordinary
course of business; (e) Labor Disputes. Any labor disputes between Seller and
its employees; or (f) Other Changes. Any other event or condition known to
either Seller or Shareholders that particularly pertains to and has or is likely
to have a material adverse effect on the Assets, the operations and the Business
or the financial condition or prospects of Seller.
2.1.4. Transferred Contracts. All of the Transferred Contracts are in full
force and effect, and constitute valid and binding obligations of Seller. Seller
is not, and no other party to any Transferred Contract is, in default
thereunder, and no event has occurred which (with or without notice, lapse of
time, or the happening of any other event) would constitute a default
thereunder. No Transferred Contract has been entered into on terms which could
reasonably be expected to have a material adverse effect on the use of the
Assets by Buyer. Neither Seller nor the Shareholders has received any
information which would cause such party to conclude that any customer of Seller
will (or is likely to) cease doing business with Buyer, as successor the
Business, as a result of the consummation of the transactions contemplated
hereby.
2.1.5. Title to and Condition of Assets. Seller has good, indefeasible and
marketable title to all of the Assets, free and clear of any Encumbrances
(defined below). To the knowledge of either Seller or Shareholders, all of the
Assets conform to all applicable laws governing their use. No notice of any
violation of any law, statute, ordinance, or regulation relating to any of the
Assets has been received by Seller or 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.
2.1.6. Licenses and Permits. Each of the Seller Permits and Seller's rights
with respect thereto is valid and subsisting, in full force and effect, and
enforceable by Seller subject to administrative powers of regulatory agencies
having jurisdiction. Seller is in compliance in all material respects with the
terms of each of the Seller Permits. None of the Seller Permits has been, or to
the knowledge of Seller or Shareholders, are threatened to be, revoked,
canceled, suspended or modified. Upon consummation of the transactions
contemplated hereby, each of the Seller Permits shall have been validly assigned
to Buyer, will be valid and subsisting in full force and effect, and will be
enforceable by Buyer subject to administrative powers of regulatory agencies
having jurisdiction.
2.1.7. Intellectual Property. The Seller Intellectual Property is owned or
licensed by Seller free and clear of any Encumbrances. Seller has not granted to
any other person any license to use any Seller Intellectual Property. Use of the
Seller Intellectual Property by Buyer will not, and the use of the Seller
Intellectual Property by Seller did not, infringe, misappropriate or conflict
with the intellectual property rights of others. Neither Seller nor the
Shareholders has received any notice of infringement, misappropriation, or
conflict with the intellectual property rights of others in connection with the
use by Seller of the Seller Intellectual Property.
2.1.8. Necessary Consents. 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, including the assignment of the Seller Permits
and the Transferred Contracts.
2.1.9. Employees. Schedule 2.1.10 hereto is a complete and accurate listing
of all employees of Seller that are involved in the ownership, operation,
maintenance or use of the Assets or the conduct of the Workover Rig Service
Business (the "Employees"). Seller does not currently sponsor, maintain or
contribute to, and has not at anytime sponsored, maintained or contributed to
any employee benefit plan which is or was subject to any provisions of the
Employee Retirement Income Security Act of 1974, as amended. No employee benefit
plan of Seller will, by its terms or applicable law, become binding upon or an
obligation of Buyer. Buyer has not engaged in any unfair labor practices which
could reasonably be expected to result in a material adverse effect on the
Assets or the Business. Seller does not have any dispute with any of its
existing or former employees. There are no labor disputes or to the knowledge of
Seller, any disputes threatened by current or former employees of Seller.
2.1.10. Investigations; Litigation. No investigation or review by any
governmental entity with respect to Seller or any of the transactions
contemplated by this Agreement or the Seller Agreements is pending or, to the
best of Seller's knowledge, threatened, nor has any governmental entity
indicated to Seller an intention to conduct the same. There is no suit, action,
or legal, administrative, arbitration, or other proceeding or governmental
investigation pending to which Seller is a party or, to the knowledge of Seller
or Shareholders, to which might become a party, and which particularly affects
the Assets or property being transferred to Seller.
2.1.11. Absence of Certain Business Practices. Neither Seller, the
Shareholders nor any officer, employee or agent of Seller, nor any other person
acting on its or his behalf, has, 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 use of the Assets or conduct of the Business (or
to assist Seller 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 use of the Assets or conduct of the Business , or if not continued in
the future, might materially adversely effect the profitable use of the Assets
or conduct of the Business.
2.1.12. Solvency. Seller is not now insolvent, nor will Seller be rendered
insolvent by the occurrence of the transactions contemplated by this Agreement.
The term "insolvent" 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.
2.1.13. Untrue Statements. Seller has made available to Buyer true,
complete and correct copies of customers, and if required, Seller will make
available records relating principally to the Assets and the business, and such
information covers all commitments and liabilities of Seller relating
principally to the Assets. This Agreement, the Seller Agreements and the other
instruments executed by Seller or Shareholders and delivered to Buyer in
connection herewith do 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.
2.1.14. 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.
Article III
Representations and Warranties of Buyer
3.1 Representations and Warranties of Buyer. Buyer represents and warrants
to Seller and Shareholders as follows:
3.1.1. 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 or be licensed would not have a material adverse
effect on the business of Buyer.
3.1.2. Agreement Authorized and its Effect on Other Obligations. The
execution and delivery of this Agreement and all other agreements executed by
Buyer and delivered to Seller or Shareholders in connection herewith (the "Buyer
Agreements") have been authorized by all necessary corporate action on the part
of Buyer, and this Agreement and the Buyer Agreements are valid and binding
obligations of Buyer, enforceable (subject to normal equitable principals)
against Buyer in accordance with their 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 Buyer Agreements and the consummation of
the transactions contemplated hereby and thereby 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 is subject.
3.1.3. 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.
Article IV
Additional Agreements
4.1 Noncompetition. Except as otherwise consented to or approved in writing
by Buyer, each of Seller and the Shareholders agree that for a period of sixty
(60) months following the Effective Date, they shall not, directly or
indirectly, acting alone or as a member of a partnership or a holder of, or
investor in as much as 5% of any security of any class of any corporation or
other business entity (I) engage in any business providing workover or well
services in Oklahoma (the "Territory"); (ii) request any present customers or
suppliers of Seller to curtail or cancel their business with Buyer; (iii)
disclose to any person, firm or corporation any trade, technical or
technological secrets of Seller or Buyer or any details of their organization or
business affairs or (iv) induce or actively attempt to influence any employee of
Buyer to terminate his employment. Notwithstanding the foregoing, Seller's and
Shareholders' non-competition obligations shall cease in the event that Buyer or
its successors in interest, no longer engages in like business in the Territory.
Seller agrees that if either the length of time or geographical area of the
Territory is deemed too restrictive in any court proceeding, the court may
reduce such restrictions to those which it deems reasonable under the
circumstances. The obligations expressed in this Section 4.1 are in addition to
any other obligations that Seller or the Shareholders may have under the laws of
any state requiring a corporation who sells its assets (and the Shareholders of
such corporation) to limit its activities so that the goodwill and business
relations being transferred with such assets will not be materially impaired.
Seller further agrees and acknowledge that Buyer does not have any adequate
remedy at law for the breach or threatened breach by Seller of this covenant,
and agree that Buyer may, in addition to the other remedies which may be
available to it hereunder, file a suit in equity to enjoin Seller from such
breach or threatened breach. If any provisions of this Section 4.1 are held to
be invalid or against public policy, the remaining provisions shall not be
affected thereby. Seller acknowledges that the covenants set forth in this
Section 4.1 are being executed and delivered by Seller in consideration of the
covenants of Buyer contained in this Agreement, and for other good and valuable
consideration, receipt of which is hereby acknowledged.
4.2 Hiring Employees. Effective as of the date hereof, all of the Employees
shall be terminated by Seller. Buyer may, but shall be under no obligation to,
hire any of the Employees effective as of the date hereof. Except as provided in
Section 1.4 hereof, Buyer shall have no liability or obligation with respect to
any employee benefits of any Employee except those benefits that accrue pursuant
to such Employees' employment with Buyer on or after the date hereof. Seller and
the Shareholders shall cooperate with Buyer in connection with any offer of
employment from Buyer to the Employees and use its best efforts to cause the
acceptance of any and all such offers. All Employees hired by Buyer shall be
at-will employees of Buyer.
4.3 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
4.6 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.
4.4 Collection of Receivables. Buyer shall cooperate with and assist Seller
in collecting the Seller Receivables, which cooperation and assistance shall
include promptly forwarding to Seller all payments received by Buyer that are
made in respect of the Seller Receivables. Seller shall cooperate with and
assist Buyer in collecting receivables of Buyer, which cooperation and
assistance shall include promptly forwarding to Buyer all payments received by
the Seller that are made in respect of Buyer's receivables.
4.5 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.
4.6 Closing Costs. Each party will bear the cost and expenses of performing
the acts required of such party under this Agreement, including, without
limitation, attorneys' fees and disbursements incurred by the respective parties
in connection herewith; provided, however, the Buyer will pay all sales tax
imposed by any governmental authority as a result of the sale of Assets and will
prepare and file all sales tax reports and tax returns relating thereto.
4.7 Taxes. All federal, state and local taxes relating to the Property
which accrued prior to the date hereof will be paid by the Seller. All such
taxes incurred on or after the date hereof (including sales taxes arising from
the sale of the Property) will be paid by the Buyer and the Buyer agrees to
indemnify and hold the Seller and Shareholders harmless with respect thereto.
4.8 Insurance. All existing insurance policies maintained by the Seller
will be terminated on the date hereof and the Buyer will be responsible for
obtaining its own insurance subsequent thereto.
4.9 Possession; Risk of Loss. Possession of the Assets willpass from the
seller to the buyer at midnight on the date hereof and the risk of loss will
pass from the Seller to the Buyerat that time
4.10 Attorneys' Fees. If either party institutes an action or proceeding
against the other relating to the provisions of this Agreement or any default
hereunder, the prevailing party in such action or proceeding will be entitled to
receive a reasonable attorneys' fee as a part of its costs incurred therein.
Article V
Indemnification
5.1 Indemnification by Seller and the Shareholders. In addition to any
other remedies available to Buyer under this Agreement, or at law or in equity,
each of Seller and Shareholders shall, jointly and severally, indemnify, defend
and hold harmless Buyer, and its respective 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 Seller or 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 Seller or the Shareholders under this Agreement and (ii) the Retained
Liabilities.
5.2 Indemnification by Buyer. In addition to any other remedies available
to Seller or Shareholders under this Agreement, or at law or in equity, Buyer
shall, jointly and severally, indemnify, defend and hold harmless the
Shareholders, Seller and its officers, directors, employees and agents against
and with respect to any and all Damages that such indemnities shall incur or
suffer, which arise, result from or relate to any breach of, or failure by Buyer
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 or the Shareholders by or on behalf of Buyer
under this Agreement.
5.3 Indemnification Procedure. If any party hereto discovers or otherwise
becomes aware of an indemnification claim arising under Section 5.1 or Section
5.2 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 5, 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.
Article VI
Miscellaneous
6.1 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.
6.2 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.
6.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall deemed to be an original instrument, but all
of which together shall constitute one and the same instrument.
6.4 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 Copy to:
WellTech Eastern, Inc. William P. Parker, P. C.
c/o Key Energy Group, Inc. Attorney at Law
Two Tower Center, Tenth Floor 2212 N.W. 50th
East Brunswick, NJ 08816 Suite 163
Attn: General Counsel Oklahoma City, OK 73112
Facsimile: (908) 247-5148 Telephone: (405) 840-1288
If to Seller or Shareholders
Addressed to: With Copy to:
Southwest Oilfield Service, Inc. Gary Millspaugh
P.O. Box 1031 Attorney at Law
Elk City, OK 73648 P.O. Box 131
Weatherford, OK 73096
Mr. David Wright Telephone: (405) 772-1111
Rt 4 Box 256
Elk City, OK 73644
Mr. Roy Wofford
1924 Green Meadows
McAllister, OK 74501
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.
6.5 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.
6.6 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.
6.7 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.
6.8 Applicable Law. This Agreement shall be governed by and construed and
enforced in accordance with the applicable laws of the State of Oklahoma.
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 on this
3rd day of April, 1997 to be effective as of the Effective Date.
WELLTECH EASTERN, INC.
By:
Name: Bill Bixler
Title: Executive Vice-president
SOUTHWEST OILFIELD SERVICE, INC.
By:
Name:
Title:
SHAREHOLDER:
David Wright
SHAREHOLDER:
Roy Wofford
SCHEDULE 1.1(a) - TANGIBLE PERSONAL PROPERTY
SCHEDULE 1.1(c) - SELLER INTELLECTUAL PROPERTY
(Patents, Copy Rights, Trademarks, Service Marks, Licenses
and all applicable customer lists of Seller)
Meridian - (Burlington Res.)
Crosstimbers
Bracken
K. Stewart
Nor. Am
Wwallace Oil And Gas
Crawley Petroleum
EXOK
Mulson Oil Company
Progressive Res.
DLB Energy
Triple D Douglas Diets and Daily
SCHEDULE 1.1(d) - CONTRACTS
(Leases, Subleases, Contracts, Contract Rights and Agreements relating to
ownership, operation or maintenance or use of Tangible Personal Property)
NONE
SCHEDULE 1.1(e) - SELLER PERMITS
(Permits, Authorizations, Certificates, Approvals, Registrations,
Variances, Waivers, Exemptions, Rights of Way, Franchises,
Ordinances, Licenses and Rights obtained from governmental agencies
relating to use, operation, maintenance or use of Tangible Personal Property)
Permit(s) issued by agencies requesting size, weight and dimension of over
the road transportation.
SCHEDULE 2.1.3 - FINANCIAL STATEMENTS
SCHEDULE 2.1.10 - EMPLOYEES
Employee Social Security No.
Schedule 4.6 - ALLOCATION OF PURCHASE PRICE
Equipment $ 400,000
Goodwill $ 10,000
Covenant not to compete $ 45,000
Total $455,000