A:\WACASSAG.04
EXECUTION COPY
Asset Purchase Agreement
among
WellTech Eastern, Inc.
Waco Oil & Gas Co., Inc.
and
I. L. Morris
September 1, 1997
Asset Purchase Agreement
This Asset Purchase Agreement (this AAgreement@) is entered into as of
September 1, 1997 among WellTech Eastern, Inc., a Delaware corporation
(ABuyer@), Waco Oil & Gas Co., Inc., a West Virginia corporation (the ASeller@),
and I. L. Morris (the AShareholder@).
W I T N E S S E T H:
WHEREAS, in addition to other lines of business, the Seller is engaged in
the business of providing wireline services, oil field trucking services, water
hauling services, drilling and completing wells, tank rentals, pipe hauling and
sales, pipeline construction, environmental remediation work and site
preparation (the AAcquired Business@); and
WHEREAS, the Seller desires to sell all of the assets owned by the Seller
and used principally in the Acquired Business, 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:
65535rt65535cle I
Purchase and Sale of Assets W I T N E S S E T H:WHEREAS, in addition to
other lines of business, the Seller is engaged in the business of providing
wireline services, oil field trucking services, water hauling services, drilling
and completing wells, tank rentals, pipe hauling and sales, pipeline
construction, environmental remediation work and site preparation (the AAcquired
Business@); and WHEREAS, the Seller desires to sell all of the assets owned by
the Seller and used principally in the Acquired Business, 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: 65535rt65535cle IPurchase and Sale of Assets
I.1 Purchase and Sale of the AssetsI.1 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
following assets of the Seller (all such assets being sold hereunder are
referred to collectively herein as the AAssets@):
(a) all tangible personal property of the Seller (such as machinery,
equipment, leasehold improvements, furniture and fixtures, and vehicles)
principally used in the Acquired Business, including, without limitation, that
which is more fully described on Schedule 1.1(a) hereto (collectively, the
ATangible Personal Property@);
(b) all of the inventory of Seller relating principally to the Acquired
Business, including without limitation, that which is more fully described on
Schedule 1.1(b) hereto (collectively, the AInventories@);
19 A:\WACASSAG.04
(c) all of the Seller=s intangible assets principally used in the Acquired
Business, including without limitation, (i) all of the Seller=s rights to any
patents, patent applications, copyrights and written know-how, trade secrets,
licenses and sublicenses and all other similar proprietary data and the goodwill
associated therewith (collectively, the AIntellectual Property@) used or held in
connection with operation of the Assets and the conduct of the Acquired Business
including without limitation, that which is more fully described on Schedule
1.1(c) hereto (the ASeller Intellectual Property@), but specifically excluding
the corporate name of the Seller and any other names under which the Seller
conducted the Acquired Business and (ii) all of the Seller=s account ledgers,
sales and promotional literature, computer software, books, records, files and
data (including customer and supplier lists), and all other records of the
Seller relating to the Assets or the Acquired Business (collectively, the
AIntangibles@);
(d) those leases, subleases, contracts, contract rights, and agreements
relating to the Assets or the operation of the Acquired Business specifically
listed on Schedule 1.1(d) hereto (collectively, the AContracts@);
(e) all permits, authorizations, certificates, approvals, registrations,
variances, waivers, exemptions, rights-of-way, franchises, ordinances, orders,
licenses and other rights of every kind and character (collectively, the
APermits@) relating principally to all or any of the Assets or to the operation
of the Acquired Business, including, but not limited to, that which is more
fully described on Schedule 1.1(e) hereto (collectively, the ASeller Permits@);
(f) the goodwill and going concern value of the Acquired Business; and
(g) all other or additional privileges, rights, interests, properties and
assets of the Seller of every kind and description and wherever located that are
principally used in the Acquired Business, intended for use in the Acquired
Business, or that are necessary for the continued conduct of the Acquired
Business;
provided, however, that the Assets shall not include the following
(collectively, the AExcluded Assets@): (i) all of the Seller=s accounts
receivable and all other rights of the Seller to payment for services rendered
by the Seller in connection with its conduct of the Acquired Business before the
date hereof; (ii) all cash accounts of the Seller and all petty cash of the
Seller kept on hand for use in the Acquired Business; (iii) all right, title and
interest of the Seller in and to all prepaid rentals, other prepaid expenses,
bonds, deposits and financial assurance requirements, and other current assets
relating to any of the Assets or the Acquired Business; (iv) all assets in
possession of the Seller but owned by third parties; (v) the corporate charter,
related organizational documents and minute books of the Seller; (vi) the cash
consideration paid or payable by Buyer to Seller pursuant to Section 1.2 hereof
and (vii) any and all assets of the Seller not principally used in the Acquired
Business.
I.2 Consideration for AssetsI.2 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 Shareholder contained herein, Buyer agrees to pay to the
Seller, on the date hereof, the amount of $7,143,598.36 by wire transfer of
immediately available funds to an account designated by the Seller.
I.3 LiabilitiesI.3 Liabilities. Effective on the date hereof, Buyer shall
assume those, and only those, liabilities and obligations of the Seller to
perform the Contracts to the extent that the Contracts have not been performed
and are not in default on the date hereof (the AAssumed Liabilities@). On and
after the date hereof, the Seller shall be responsible for any and all other
liabilities and obligations of the Seller other than the Assumed Liabilities,
including, without limitation, any obligations arising from the Seller=s conduct
of the Acquired Business and operation of the Assets before the date hereof (the
ARetained Liabilities@).
65535rt65535cle II
Representations and Warranties
Representations and Warranties II.1 Representations and Warranties of the
Seller and the Shareholder. The Seller and the Shareholder jointly and severally
represent and warrant to Buyer as follows:
II.1.1. Organization and Good StandingII.1.1. Organization and Good
Standing. The Seller 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.
II.1.2. Agreements Authorized and their Effect on Other
Obligations.Agreements Authorized and their Effect on Other Obligations. The
execution and delivery of this Agreement have been authorized by all necessary
corporate, shareholder and other action on the part of the Seller and the
Shareholder, and this Agreement is the valid and binding obligation of the
Seller and the Shareholder 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
the Shareholder, (ii) any obligation, indenture, mortgage, deed of trust, lease,
contract or other agreement to which the Seller or the Shareholder is a party or
by which the Seller or the Shareholder 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 or the Shareholder or any of their respective properties are subject.
II.1.3. ContractsII.1.3. Contracts. Schedule 1.1(d) hereto sets forth a
complete list of all contracts, including leases under which the Seller is
lessor or lessee, which relate to the Assets and are to be performed in whole or
in part after the date hereof. Neither the Seller nor the Shareholder has
received any information which would cause any of such parties to conclude that
any customer of the Seller will (or is likely to) cease doing business with
Buyer (or its successors) as a result of the consummation of the transactions
contemplated hereby.
II.1.4. Title to and Condition of AssetsII.1.4. 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). Buyer acknowledges
and agrees that all equipment being transferred hereunder is used and is being
transferred AS IS, WHERE IS, except that the Seller and the Shareholder
expressly represent and warrant that (i) each piece of equipment being
transferred hereunder is operable as of the date hereof and (ii) the condition
of each such piece of equipment (including all known material defects) has been
accurately disclosed to Buyer in writing. 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 the Seller or the Shareholder, except such as have been fully
complied with. The term AEncumbrances@ 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.
II.1.5. Licenses and PermitsII.1.5. Licenses and Permits. Schedule 1.1(e)
hereto sets forth a complete list of all Permits necessary under law or
otherwise for the operation, maintenance and use of the Assets in the manner in
which they are now being operated, maintained and used.
II.1.6. Intellectual Property. Schedule 1.1(c) hereto sets forth a complete
list of all Intellectual Property material to or necessary for the continued
conduct of the Acquired Business. The conduct of the Acquired Business did not,
infringe, misappropriate or conflict with the Intellectual Property rights of
others. Neither the Seller nor the Shareholder has received any notice of
infringement, misappropriation, or conflict with the Intellectual Property
rights of others in connection with the Seller=s operation of the assets or
conduct of the Acquired Business.
II.1.7. Necessary ConsentsII.1.7. 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, including, without
limitation, any consents required to assign the Contracts and the Seller
Permits.
II.1.8. Environmental MattersII.1.8. Environmental Matters. Buyer will not
become liable as a result of the transactions contemplated hereby for any
violations of Environmental Law (defined below) by the Seller in connection with
the Seller=s operation of the Assets or conduct of the Acquired Business before
the date hereof. The term AEnvironmental Law@ means any and all laws, rules,
orders, regulations, statutes, ordinances, codes, decrees, and other legally
enforceable requirements (including, without limitation, common law) of the
United states, or any state, regional, city, local, municipal or other
governmental authority or quasi-governmental authority, regulating, relating to,
or imposing environmental standards of conduct concerning protection of the
environment or human health, or employee health and safety as from time to time
has been or is now in effect.
II.1.9. Investigations; LitigationII.1.9. Investigations; Litigation. No
investigation or review by any governmental entity with respect to the Seller or
any of the transactions contemplated by this Agreement is pending or, to the
knowledge of the Seller or the Shareholder, threatened, nor has any governmental
entity indicated to the Seller or any of the Shareholder an intention to conduct
the same. There is no suit, action, or legal, administrative, arbitration, or
other proceeding or governmental investigation pending to which the Seller or
the Shareholder is a party or, to the knowledge of the Seller or the
Shareholder, might become a party or which would adversely affect the Assets or
the Buyer=s future conduct of the Acquired Business.
II.1.10. SolvencyII.1.10. Solvency. The Seller is not presently insolvent,
nor will the Seller be rendered insolvent by the occurrence of the transactions
contemplated by this Agreement. The term Ainsolvent@, with respect to a
particular Seller, means that the sum of the present fair and saleable value of
such Seller=s assets does not and will not exceed its debts and other probable
liabilities, and the term Adebts@ includes any legal liability whether matured
or unmatured, liquidated or unliquidated, absolute fixed or contingent, disputed
or undisputed or secured or unsecured.
II.1.11. Untrue StatementsUntrue Statements. This Agreement and all other
agreements executed by the Seller or the Shareholder and delivered to Buyer does
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. The
Seller has also 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 Acquired Business and the Assets, and such
information covers all commitments and liabilities of Buyer relating principally
to the Acquired Business and the Assets.
II.1.12. Finder=s FeeII.1.12. Finder=s Fee. All negotiations relative to
this Agreement and the transactions contemplated hereby have been carried on by
the Seller, the Shareholder 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.
II.1.13. Trade NamesII.1.13. Trade Names. Schedule 2.1.13 hereto lists (i)
all trade names, assumed names and other names under which the Seller has
conducted business other than AWaco Oil & Gas Co., Inc.@ and (ii) all states
other than West Virginia where the Assets are located.
II.2 Representations and Warranties of BuyerII.2 Representations and
Warranties of Buyer. Buyer represents and warrants to the Seller and the
Shareholder as follows
II.2.1. Organization and Good StandingII.2.1. Organization and Good
Standing. Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State 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.
II.2.2. Agreement Authorized and its Effect on Other ObligationsII.2.2.
Agreement Authorized and its Effect on Other Obligations. The execution and
delivery of this Agreement have been authorized by all necessary corporate,
shareholder and other action on the part of Buyer, and this Agreement is the
valid and binding obligation of Buyer enforceable (subject to normal equitable
principals) against such party 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 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 its properties are subject.
II.2.3. Consents and Approvals II.2.3. Consents and Approvals. No consent,
approval or authorization of, or filing of a registration with, any governmental
or regulatory authority, or any other person or entity is required to be made or
obtained by Buyer in connection with the execution, delivery or performance of
this Agreement or the consummation of the transactions contemplated hereby.
II.2.4. Finder=s FeeII.2.4. 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 the Seller and the Shareholder and their counsel,
without the intervention by 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 payments.
65535rt65535cle III
Additional Agreements
Additional Agreements III.1 Noncompetition.Noncompetition. Except as
otherwise consented to or approved in writing by Buyer, the Seller and the
Shareholder agree that for a period of 60 months following the date hereof, such
party will not (and will cause Douglas S. Morris not to), 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 the Acquired Business in the states of West
Virginia, Michigan , Indiana and any other state that directly borders West
Virginia; (ii) request any present customers or suppliers of the Seller to
curtail or cancel their business with Buyer (or Buyer=s affiliates); (iii)
disclose to any person, firm or corporation any trade, technical or
technological secrets of Buyer (or Buyer=s affiliates) or of the Seller or any
details of their organization or business affairs or (iv) induce or actively
attempt to influence any employee of Buyer (or Buyer=s affiliates) to terminate
his employment. The Seller and the Shareholder agree that if either the length
of time or geographical as set forth in this Section 3.1 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 3.1 are in addition to any other obligations that the
Seller and the Shareholder may have under the laws of any state requiring a
corporation selling its assets (or a shareholder of such corporation) to limit
its activities so that the goodwill and business relations being transferred
with such assets will not be materially impaired. The Seller and the Shareholder
further agree and acknowledge that Buyer does not have any adequate remedy at
law for the breach or threatened breach by the Seller or the Shareholder of the
covenants contained in this Section 3.1, 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 the Seller or the Shareholder from such breach or threatened
breach. If any provisions of this Section 3.1 are held to be invalid or against
public policy, the remaining provisions shall not be affected thereby. The
Seller and the Shareholder acknowledge that the covenants set forth in this
Section 3.1 are being executed and delivered by such party in consideration of
the covenants of Buyer contained in this Agreement, and for other good and
valuable consideration, the receipt of which is hereby acknowledged.
III.2 Hiring EmployeesIII.2 Hiring Employees. Schedule 3.2 hereto is a
complete and accurate listing of all employees of the Seller that devote their
full time and effort in the operation of the Assets and the conduct of the
Acquired Business (the AEmployees@). Except as provided in Schedule 3.2 hereto,
effective as of the date hereof, the Seller shall make all of the Employees
available for hire by Buyer, subject to such Employees meeting Buyer=s standard
employment eligibility requirements. Any Employee hired by Buyer in connection
herewith shall be deemed terminated by the Seller as of the date 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. The Seller and the
Shareholder 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.
III.3 Use of Facility; Facility Lease. The parties hereto agree to
negotiate in good faith the terms and provisions of, and execute and deliverto
each other, a lease agreement (the AFacility Lease@) covering the facility (the
AFacility@) from which the Acquired Business is currently conducted, which lease
agreement will be (i) effective as of the date hereof (including rent payment
obligations) and (ii) subject to the Buyer=s acceptance of a Phase I
environmental report covering the Facility. Until the earlier of (i) the
execution and delivery of the Facility Lease and (ii) 60 days from the date
hereof, Buyer shall have the exclusive right to store inventory and equipment in
the warehouse located on the Facility and shall have the right to ingress and
egress the Facility as necessary to use such warehouse. If the Facility Lease is
not executed and delivered by the parties hereto within such 60-day time period,
no rental or other payments shall be due to the Seller for such right, and Buyer
shall have removed all of its property from the warehouse by the end of such
60-day time period.
III.4 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.
65535rt65535cle IV
Indemnification
IV.1 Indemnification by the Seller and the Shareholder. In addition to any
other remedies available to Buyer under this Agreement, or at law or in equity,
the Seller and the Shareholder 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 ADamages@) that such indemnitee shall incur or
suffer, which arise, result from or relate to (i) any breach of, or failure by
the Seller or the Shareholder 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 or the Shareholder under this Agreement; and (ii) the Retained
Liabilities.
IV.2 Indemnification by BuyerIV.2 Indemnification by Buyer. In addition to
any other remedies available to the Seller and the Shareholder under this
Agreement, or at law or in equity, Buyer shall indemnify, defend and hold
harmless the Seller and its officers, directors, employees, agents and
stockholders and the Shareholder and his 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 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 the
Seller or the Shareholder by or on behalf of Buyer under this Agreement.
IV.3 Indemnification Procedure. If any party hereto discovers or otherwise
becomes aware of an indemnification claim arising under Section 4.1 or 4.2 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 4, 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 or delayed.
65535rt65535cle V
Miscellaneous V Miscellaneous V.1 Survival of Representations, Warranties
and CovenantsV.1 Survival of Representations, Warranties and Covenants. All
representations, and warranties made by the parties hereto shall for a period of
24 months from the date hereof, notwithstanding any investigation made by or on
behalf of any of the parties hereto; provided, however, that the representations
of the Seller and the Shareholder as to the operability and condition of the
Assets contained in clauses (i) and (ii) in the second sentence of Section 2.1.4
hereof shall survive for a period of 12 months from the date hereof
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 for a period of 24 months from the date hereof
despite any investigation made by any party hereto or on its behalf. All
covenants and agreements herein shall survive as provided herein. V.2
EntiretyV.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.
V.3 Counterparts.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.
V.4 Notices and Waivers.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 -----------------------------------------------------------
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Addressed to: With a copy to:
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WellTech Eastern, Inc. Porter & Hedges, L.L.P.
Two Tower Center, Tenth Floor 700 Louisiana
East Brunswick, New Jersey 08816 Houston, Texas 77210-4744
Attn: General Counsel Attn: Samuel N. Allen
Facsimile: (908) 247-5148 Facsimile: (713) 228-1331
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If to the Seller or the Shareholder
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Addressed to: With a copy to:
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Waco Oil and Gas, Inc. Bowles Rice McDavid Graff & Love
P.O. Box 397 600 Quarrier St.
1297 North Lewis St. Charleston, West Virginia 25301
Glenville, West Virginia 26351 Attn: Mark A. Monteleone
Facsimile: (304) 343-3058
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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.
V.5 Captions.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.
V.6 Successors and Assigns.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. V.7 Severability.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.
V.8 Applicable Law.Applicable Law. This Agreement shall be governed by and
construed and enforced in accordance with the applicable laws of the State of
West Virginia.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Shareholder has 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.
BUYER:
WELLTECH EASTERN, INC.
By:
Name:
Title:
SELLER:
WACO OIL & GAS CO., INC.
By:
Name:
Title:
SHAREHOLDER:
__________________
I.L. Morris
Schedule 1.1(a) - Tangible Personal Property
See attached listing
Schedule 1.1(b) - Inventories
See attached listing
Schedule 1.1(c) - Seller Intellectual Property
None
Schedule 1.1(d) - Contracts
None
Schedule 1.1(e) - Seller Permits
None
Schedule 2.1.13 - Trade Names
None
Schedule 3.2 - Employees
See attached listing