ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") dated October ___, 1997 between
KAHLDEN PRODUCTION SERVICES, INC., a Texas corporation ("Seller" or "Kahlden
Production"), and WELLTECH EASTERN, INC., a Delaware corporation ("Purchaser" or
"Brooks"), evidences that Seller desires to sell to Purchaser and Purchaser
desires to purchase from Seller all of the assets of Seller other than the
Excluded Assets (as hereinafter defined) on the terms and conditions hereinafter
specified, that in connection with such sale and purchase Seller and Purchaser
desire to enter into certain agreements and that, therefore, in consideration of
the premises and of the mutual covenants and obligations specified herein, the
parties hereto agree as follows:
1. Purchase and Sale of Assets.
On the date hereof, in accordance with and subject to the other terms and
conditions hereof, Seller shall sell, assign, transfer and deliver to Purchaser,
and Purchaser shall purchase, acquire and accept from Seller, effective for all
purposes as of the opening of business on the date hereof the following assets
(collectively, the " Assets"):
1.1 Vehicles and Trailers. All of the trucks and trailers associated equipment
described in Exhibits "A" and "D" hereto (the "Vehicles").
1.2 Inventories. All inventories of supplies, parts, materials and other goods
properly classifiable as inventories owned by Seller as of the opening of
business on the date hereof (the "Inventories").
1.3 Name. Any and all rights to the use of the name "Kahlden Production
Services, Inc." and all similar names in all jurisdictions and locations (the
"Name").
1.4 Other Assets. All contract rights of Seller with suppliers, customers,
dealers or other persons and relating to any of the Assets; all customer sales
and service records and similar assets owned by Seller and relating to the
Assets (provided, however, that upon reasonable notice Purchaser shall provide
Seller access to all such records and information at all reasonable times for a
period of five years after the date hereof); all customer lists, trade secrets,
proprietary or confidential information used in connection with any of the
Assets; all licenses, certificates and permits from governmental authorities
required for or incident to the use or operation of any of the Assets; and all
service and maintenance records for all Assets (in each case, such as are owned
by Seller as of the opening of business on the date hereof, and being
collectively referred to herein as the "Other Assets").
2. Excluded Assets.
Notwithstanding any other provision hereof to the contrary, the "Excluded
Assets" are (and the Assets specifically do not include) the following:
2.1 Real Property. All real property owned by Seller, together with all
improvements thereon and all rights, titles and interests appurtenant thereto.
2.2 Cash. All cash owned by Seller.
2.3 Accounts Receivable. All accounts and notes receivable from account, note
and other debtors owned by Seller.
2.4 Tax Refunds. All federal or state income or other tax refunds or other tax
receipts with respect to Seller or any of the Assets.
2.5 Certain Books and Records. All books of account and accounting records of
Seller, including all books and records of Seller related to federal or state
income tax payments or liabilities of Seller, and all minute books, stockbooks
and other corporate records of Seller.
2.6 Insurance. All insurance policies and agreements with respect to which
Seller is an insured or beneficiary and all rights, refunds or benefits
thereunder or arising in connection therewith.
3. Assumption of Obligations and Liabilities.
3.1 Obligations and Liabilities Assumed by Purchaser. Upon the execution hereof,
Purchaser shall assume and agree to pay, perform and discharge those and only
those obligations and liabilities of Seller described below (the "Assumed
Obligations"):
Obligations for new equipment to expand the service capability of the business
which Seller had initiated prior to the date hereof and which are described on
Exhibit "D" attached hereto.
From and after the date hereof, Purchaser shall pay, perform, discharge , and
indemnify and hold Seller harmless from the Assumed Obligations.
3.2 Obligations and Liabilities Not Assumed by Purchaser. Seller expressly
agrees that with the exception of the Assumed Obligations, it shall be
responsible for the payment or other satisfaction of all of Seller's obligations
and liabilities (the "Unassumed Obligations"), which shall include, but not be
limited to, the following :
(a) Any liability of Seller for any federal, state, local or foreign income or
franchise taxes, state or local property taxes, state, county, municipal or
regional sales or use taxes, or other taxes of any kind or description;
(b) Any obligation or liability (contingent or otherwise) of Seller arising out
of any threatened or pending litigation;
(c) Any sales taxes relating to the acquisition by Seller of any of the Assets;
and
(d) Any other obligations or liabilities of Seller which are not specifically
assumed by Purchaser hereunder.
From and after the date hereof, Seller shall pay, perform and discharge, and
indemnify and hold Purchaser harmless from, the Unassumed Obligations.
4. Purchase Price.
4.1 Amount. Upon execution hereof and delivery of ownership and possession of
the Assets to Purchaser, free and clear of all liens and encumbrances and
satisfaction of Seller's other obligations hereunder, Purchaser shall pay to
Seller a price (the "Purchase Price") of $637,779.88 for the Assets, which
includes $37,779.88 paid by Seller for the Additional Equipment Delivered or on
Order described in Exhibit "D" hereto and the consideration payable for
covenants not to compete which are required to be delivered to Purchaser under
Section 7 hereto.
4.2 Allocation. Seller and Purchaser agree that the Purchase Price shall be
allocated by Seller and Purchaser for all purposes among the Assets and the
covenant not to compete provided for in Section 8 in the manner set forth on
Exhibit "B", the parties acknowledging that each of the Assets and such covenant
has been bargained for separately.
5. Representations and Warranties by Seller.
In order to induce Purchaser to enter into this Agreement and each transaction
contemplated hereby, Seller represents and warrants to Purchaser as follows:
5.1 Organization. Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Texas.
5.2 Authority. Seller has full corporate power necessary, and has taken all
corporate action necessary, to authorize the execution, delivery and performance
by Seller of this Agreement. The execution and delivery of this Agreement by
Seller and the consummation by Seller of the transactions contemplated hereby
will not result in a breach of any of the terms and provisions of, constitute a
default under or conflict with (a) the articles of incorporation or bylaws of
Seller, (b) any judgment, decree, order or award of any court, governmental body
or arbitrator, or any law, rule or regulation applicable to Seller.
5.3 Validity and Enforceability. This Agreement is a valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms.
5.4 Absence of Changes. From December 31, 1996, to the date of this Agreement,
other than in connection with or pursuant to this Agreement, Seller has:
(a) used all reasonable efforts to preserve its relationship with its customers,
suppliers and others having business relations with it;
(b) not sold, disposed, leased or encumbered any property or other assets,
except in the ordinary course of its business;
(c) not entered into any transaction other than in the ordinary course of its
business; and
(d) not agreed to do any of the foregoing.
5.5 Ownership of Assets; Absence of Liens. Seller has good, marketable and valid
title to the Assets free and clear of all liens, mortgages, security interests,
pledges, preferential purchase rights or other encumbrances or claims of any
kind.
5.6 Customer Relations. During the calendar year ended December 31, 1996, and in
the current calendar year through the date hereof, as the case may be:
(a) None of the customers of Seller has lodged any written complaint regarding
the service or products provided by Seller which has not since been satisfied by
Seller;
(b) There have been no prepayments of any obligations to Seller by any
customers, and Seller has not made any promises, written or oral, to provide
services or products at other than market price to any such customer; and
(c) Seller has not received any security deposits on or related to any of the
Assets.
5.7 Inventories and Purchase Orders. The Inventories have been acquired by
Seller in the ordinary course of business, consistent with past practices.
5.8 Litigation. There are no lawsuits, proceedings, claims or governmental
investigations pending or, to the knowledge of Seller, threatened affecting the
Assets. There is no action, suit, proceeding or investigation pending or, to the
knowledge of Seller, threatened which questions the legality, validity or
propriety of the transactions contemplated by this Agreement.
5.9 Consents. No consents, approvals, authorizations or other requirements
prescribed by any law, rule or regulation must be obtained or satisfied by
Seller or are necessary for the execution, delivery and performance by Seller of
this Agreement or any of the documents to be executed and delivered by Seller in
connection herewith.
5.10 Compliance with Law. Seller's business as conducted within the past three
years has not violated, and on the date hereof does not violate, in any material
respect any federal, state, local or foreign laws, regulations or orders, the
enforcement of which would have a material and adverse effect on the Assets or
Seller's business, and Seller has not received any notice within three years of
the date hereof of any such violation.
5.11 Taxes. Seller has paid all assessments, levies, fines, fees and other such
charges which are due and payable. Seller has paid all federal, state, local or
foreign income taxes or franchise taxes, state or local property taxes, state,
county, municipal or regional sales or use taxes, or other taxes of any kind or
description which are due and payable, except any sales or use taxes relating to
the acquisition by Purchaser of any of the Assets pursuant to this Agreement.
5.12 Other Information. To the knowledge of Seller, the information provided by
Seller to Purchaser in this Agreement or in the exhibits hereto or in any other
writing pursuant hereto does not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated herein or
therein or necessary to make the statements and facts contained herein or
therein, in light of the circumstances in which they are made, not false or
misleading. Copies of all documents heretofore delivered by Seller to Purchaser
or made available by Seller to Purchaser pursuant hereto were complete and
accurate records of such documents.
5.13 No Broker or Finder. Neither Seller nor any party acting on its behalf has
agreed to pay any party a commission, finder's fee or similar payment in regard
to this Agreement or any matter related hereto or taken any action on which a
claim for any such payment could be based.
6. Representations and Warranties by Purchaser.
In order to induce Seller to enter into this Agreement and each transaction
contemplated hereby, Purchaser represents and warrants to Seller as follows:
6.1. Organization. Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
6.2 Authority. Purchaser has full corporate power necessary, and has taken all
corporate action necessary, to authorize the execution, delivery and performance
by Purchaser of this Agreement. The execution and delivery of this Agreement by
Purchaser and the consummation by Purchaser of the transactions contemplated
hereby will not result in a breach of any of the terms and provisions of,
constitute a default under or conflict with (a) the certificate of incorporation
or bylaws of Purchaser, (b) any material agreement, indenture or other
instrument to which Purchaser is a party or by which Purchaser is bound, or (c)
any judgment, decree, order or award of any court, governmental body or
arbitrator, or any law, rule or regulation applicable to Purchaser.
6.3 Validity and Enforceability. This Agreement is a valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms.
6.4 Litigation. There is no action, suit, proceeding or investigation pending
or, to the knowledge of Purchaser, threatened which questions the legality,
validity or propriety of the transactions contemplated by this Agreement.
6.5 Consents. No consents, approvals, authorizations or other requirements
prescribed by any law, rule or regulation must be obtained or satisfied by
Purchaser or are necessary for the execution, delivery and performance by
Purchaser of this Agreement or any of the documents to be executed and delivered
by Purchaser in connection herewith.
6.6 No Broker or Finder. Neither Purchaser nor any party acting on its behalf
has agreed to pay any party a commission, finder's fee or similar payment in
regard to this Agreement or any matter related hereto or taken any action on
which a claim for any such payment could be based.
7. Deliveries Upon Execution. Upon execution hereof, Seller shall deliver or
cause to be delivered to Purchaser the following instruments, all of which shall
be duly executed and dated as of the date hereof, unless otherwise indicated:
(a) an assignment and bill of sale (the "Assignment") in the form attached
hereto as Exhibit "C" conveying the Assets to Purchaser;
(b) certificates of title and related transfer documents, duly executed for
transfer to Purchaser, as to all certificated vehicles included in the Assets;
(c) Non-Compete Agreement executed by Thomas Kahlden;
(d) Non-Compete Agreement executed by Mickey Tucker;
(e) Assignment of Corporate Name executed by Thomas Kahlden; and
(f) a certificate of the secretary or an assistant secretary of Seller
certifying (i) the names and true signatures of the officers of Seller
authorized to sign this Agreement and the other instruments or certificates to
be delivered pursuant hereto and (ii) the resolutions of the shareholders and
board of directors of Seller approving this Agreement and the transactions
contemplated hereby.
8. Noncompetition
Seller agrees that for a period of five (5) years from the date hereof, Seller
will not, directly or indirectly, acting alone or as a member of a partnership
or as an officer, director, employee, consultant, representative, holder of, or
investor in as much as 3% of any security of any class of any corporation or
other business entity (i) engage in competition with Kahlden, Purchaser, or any
affiliate of Purchaser by providing or marketing water hauling services, mud
hauling services, vacuum truck services, water disposal services or
transportation of produced water as of the date hereof in the following counties
of the State of Texas- Austin, Bastrop, Bell, Brazos, Burleson, Colorado, Falls,
Fayette, Grimes, Harris, Lee, Leon, Limestone, Madison, McLennan, Milam,
Montgomery, Robertson, Travis, Walker, Waller, Washington, and Williamson; (ii)
request any present customers or suppliers of Kahlden Production to curtail or
cancel their business with Kahlden Production, Purchaser or any affiliate of
Purchaser; (iii) disclose to any person, firm or corporation any trade,
technical or technological secrets of Kahlden Production, Purchaser or any
affiliate of Purchaser or any details of their organization or business affairs
or (iv) induce or actively attempt to influence any employee of Kahlden
Production, Purchaser or any affiliate of Purchaser to terminate his or her
employment. Seller agrees that if either the length of time or geographical area
set forth in this Section 8 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 8 are in addition
to any other obligations that the Seller may have under the laws of the State of
Texas requiring an employee of a business or a shareholder who sells his or her
stock in a corporation (including a disposition in a merger) to limit his or her
activities so that the goodwill and business relations of his or her employer
and of the corporation whose stock he or she has sold (and any successor
corporation) will not be materially impaired. Seller further agrees and
acknowledges that Kahlden Production, Purchaser, and its affiliates do not have
any adequate remedy at law for the breach or threatened breach by Seller of this
covenant, and agree that Kahlden, Purchaser, or any affiliate of Purchaser 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 8 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 8 are being executed and delivered by
Seller in consideration of the covenants of Purchaser contained in this
Agreement, and for other good and valuable consideration, receipt of which is
hereby acknowledged.
9. Indemnification.
From and after the date hereof, Seller will indemnify and hold harmless
Purchaser against any claim, loss, liability or expense incurred by Purchaser
and arising out of or attributable to any inaccuracy of any representation or
warranty or any breach of any covenant or agreement made by Seller herein or in
any instrument or agreement referred to herein or contemplated hereby. Purchaser
will indemnify and hold harmless Seller against any claim, loss, liability or
expense incurred by Seller and arising out of or attributable to any inaccuracy
of any representation or warranty or any breach of any covenant or agreement
made by Purchaser herein or in any instrument or agreement referred to herein or
contemplated hereby. As used in this Section 9, "expense" shall include, without
limitation, attorneys' fees and costs of any investigation of an alleged breach
which is ultimately determined to constitute a matter for which indemnification
is required.
10. Miscellaneous Agreements.
10.1 Ad Valorem Taxes. Upon execution hereof, Seller shall pay to Purchaser the
amount of $1000.00 for Seller's share of all ad valorem taxes in respect of
Seller's ownership of the Assets from January 1, 1997 to the opening of business
on the date hereof, and Purchaser shall assume and agree to pay all ad valorem
taxes in respect of the Assets for 1997.
10.2 Cooperation in Litigation. Each party shall fully cooperate with the other
in the defense or prosecution of any litigation or proceeding which may be
instituted hereafter against or by any third party relating to or arising out of
the Assets prior to or after the date hereof. Subject to Section 9 hereof, the
party requesting such cooperation shall pay the out-of-pocket expenses
(including legal fees and disbursements) of the party providing such cooperation
and of its officers, directors, employees and agents reasonably incurred in
connection with providing such cooperation, but shall not be responsible to
reimburse the party providing such cooperation for such party's time spent in
such cooperation or expenses paid by the party providing such cooperation to its
officers, directors, employees and agents while assisting in the defense or
prosecution of any such litigation or proceeding.
10.3 Press Releases. Seller hereby agrees to allow Purchaser's issuance of a
press release announcing the completion of this asset acquisition. Other than
that announcement, except as mutually agreed, neither Purchaser, Seller, nor any
of their respective directors, officers, employees, or agents shall issue any
press release or public announcement of this asset acquisition.
10.4 Further Assurance. From time to time at the reasonable request of
Purchaser, without further consideration, Seller will execute and deliver such
further instruments of conveyance and transfer and will take such actions as
Purchaser may reasonably request in order more effectively to convey and
transfer to Purchaser the Assets as contemplated by this Agreement.
10.5 Notice. All notices hereunder shall be in writing and shall be mailed first
class or express mail, postage prepaid, or sent by telegram, facsimile, or other
similar form of rapid transmission confirmed by mailing (by first class or
express mail, postage prepaid) written confirmation at substantially the same
time as such rapid transmission, or personally delivered to any individual
designated below of the receiving party. All such notices shall be mailed, sent
or delivered as follows:
If to Seller: Kahlden Production Services, Inc.
P. O. Box 909
Caldwell, Texas 77836
Attention: Thomas Kahlden
If to Purchaser: WellTech Eastern, Inc.
6010 Highway 191, Suite 212
Odessa, Texas 79762
Attention: Mr. James J. Carter
Fax Number: (915) 550-0302
With a copy to: Key Energy Group, Inc.
Two Tower Center, Tenth Floor
East Brunswick, New Jersey 08816
Attention: General Counsel
Facsimile: (908) 247-5148
Any notice so addressed and mailed shall be deemed to be given three days after
the date so mailed. Any notice so sent by rapid transmission shall be deemed to
be given when receipt of such transmission is acknowledged. Any communication so
delivered in person shall be deemed to be given when receipted for by, or
actually received by, such person. Seller or Purchaser may, by proper written
notice hereunder to the other party, change the address, individual or facsimile
number to which notice shall thereafter be sent to such party.
10.6 Severability. If any provision of this Agreement or of any instrument or
agreement executed in connection herewith or its application to any person or in
any circumstance shall be found invalid or unenforceable to any extent, the
remainder of such provisions in this Agreement (or such other instrument or
agreement) and the application thereof to other persons and in other
circumstances shall not be effected and all provisions hereof and thereof shall
be enforced to the greatest extent permitted by law.
10.7 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
10.8 Assignment. Nothing contained herein, expressed or implied, is intended to
confer upon any person or entity other than the parties hereto and their
permitted successors and assigns any rights or remedies under or by reason of
this Agreement. Subject to the foregoing, this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
10.9 Expenses. Each party to this Agreement shall pay and discharge all of the
expenses incurred by it in connection with the negotiation of this Agreement and
the consummation of the transactions contemplated hereby.
10.10 Survival. The representations, warranties, covenants and agreements set
forth herein shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and shall expire in
accordance with the applicable statute of limitations.
10.11 Sales or Use Taxes. Seller shall pay any sales or use taxes relating to
the acquisition by Purchaser of any of the Assets pursuant to this Agreement.
10.12 Waiver. No waiver of any provision hereof shall be effective unless in
writing and signed by the party to be charged with such waiver. No waiver shall
be deemed a continuing waiver or waiver in respect of any subsequent breach or
default, either of similar or different nature, unless expressly so stated in
writing.
10.13 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS APPLICABLE TO CONTRACTS TO BE
PERFORMED ENTIRELY WITHIN THAT STATE.
10.14 Exhibits and Headings. Each exhibit referenced herein and attached hereto
is hereby incorporated herein, and each reference to the "Agreement" shall be
deemed to include all exhibits hereto. The headings or captions under sections
of this Agreement are intended for convenience and reference only and shall not
affect in any way the construction or interpretation of this Agreement.
10.15 Complete Agreement and Amendment. This Agreement constitutes the final
understanding of the parties and supersedes all prior oral or written
correspondence and agreements and all contemporaneous oral agreements and
understandings of the parties relating to the subject matter hereof. This
Agreement shall be amended only by a written instrument signed by the parties
hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the day and year first written above.
KAHLDEN PRODUCTION SERVICES, INC.
By:_______________________________________
THOMAS KAHLDEN, President &
Sole Shareholder
SELLER
WELLTECH EASTERN, INC.
By:________________________________________
JIMMY CHASTEEN, Vice President
PURCHASER
EXHIBIT A
LIST OF ASSETS
Trucks (includes vacuum Pump) VIN
1988 Model 9370 International 1HSFBG2R3JO12041
1988 Model 9300 International 2HSFBG2R9JC012044
1988 Model 9300 International 2HSFBG2R0JC009047
1988 Model 9370 International 2HSFBG2R3JC009057
1990 Model 9300 International 2HSFEGUR5LC037949
Trailers
1981 Maverick Tank 130 bbl. 1F9AD52B4CA009013
1981 MD Tank 150 bbl. MD141411
1982 Proco Tank 130 bbl. 1F9AD52B4CA00901
1982 Fruehauf Tank 130 bbl. 1H4T0422XCL003201
1983 Reynolds Tank 130 bbl. 20860
EXHIBIT B
ASSET PURCHASE ALLOCATION
Trucks, Trailer and Equipment $200,000.00
Additional Equipment Delivered or on Order $ 37,779.88
Non-Compete Covenants
Kahlden Production Services $50,000.00
Thomas Kahlden $25,000.00
Mickey Tucker $25,000.00 $100,000.00
Goodwill $300,000.00
TOTAL $ 637,779.88
EXHIBIT C
ASSIGNMENT AND BILL OF SALE
KAHLDEN PRODUCTION SERVICES, INC., a Texas corporation ("Seller"), for and in
consideration of Ten Dollars ($10.00) and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, has BARGAINED,
SOLD, TRANSFERRED, ASSIGNED, CONVEYED and DELIVERED, and does by these presents
BARGAIN, SELL, TRANSFER, ASSIGN, CONVEY and DELIVER, unto WELLTECH EASTERN,
INC., a Delaware corporation ("Purchaser"), all of the right, title and interest
of Seller in and to all of the Assets (as defined in that certain Asset Purchase
Agreement (the "Purchase Agreement") dated October _____, 1997, between Seller
and Purchaser), including, but not limited to the assets listed on Exhibit "A"
attached hereto.
TO HAVE AND TO HOLD the Assets, together with all and singular the rights and
appurtenances thereto in anywise belonging, unto Purchaser, its successors and
assigns, forever; and Seller does hereby bind itself, its successors and
assigns, to warrant and forever defend title to the Assets unto Purchaser, its
successors and assigns, against every person whomsoever lawfully claiming or to
claim the same or any part thereof.
Seller hereby agrees to execute any and all certificates of transfer,
assignments or other documents as may be necessary to evidence the conveyance
described herein and to take such further action as may be reasonably necessary
to convey the Assets to Purchaser.
Seller hereby acknowledges that nothing herein shall be construed as an
assumption by Purchaser of any of the liabilities or obligations of Seller
except as expressly set forth in the Purchase Agreement.
WITNESS THE EXECUTION HEREOF, effective as of the opening of business on October
___, 1997.
KAHLDEN PRODUCTION SERVICES, INC.
By:___________________________
THOMAS KAHLDEN
President
EXHIBIT D
ADDITIONAL EQUIPMENT DELIVERED OR ON ORDER
Paid By Key to
Kahlden Assume Total
Tractor #6-1992 International
#mc054191 $21,918.23 -0- $21,918.23
Vacuum Pump-Tractor #6 5,861.65 -0- 5,861.65
Tractor #7-1991 International
#mc042660 5,000.00 17,294.55 22,294.55
Trailer #6-Challenger-Norman, OK 5,000.00 15,000.00 20,000.00
TOTAL $37,779.88 $32,294.55 $70,074.43