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EXHIBIT 2.9
STOCK PURCHASE AGREEMENT
BETWEEN
WILLIAM STUART PRICE
(THE "SELLER")
AND
CARMEN ACQUISITION CORP.
(THE "BUYER")
JANUARY 31, 2001
COMMERCIAL LAW GROUP, P.C.
ATTORNEYS & COUNSELORS
2725 Oklahoma Tower " 210 Park Avenue " Oklahoma City, Oklahoma 73102-5604
Telephone (405) 232-3001 " Telecopier (405) 232-5553
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TABLE OF CONTENTS
Page
1. Sale Agreement 5
2. Purchase Price 5
2.1 Closing Adjustments 5
2.2 Average Price 6
2.3 Registration Statement 6
2.4 Make Whole Payment 6
3. Representations and Warranties of the Seller 7
3.1 Ownership of Shares 7
3.2 No Assumption of Obligations 7
3.3 Capitalization 7
3.4 Subsidiaries 8
3.5 SEC Documents 8
3.6 Legal Requirements 9
3.7 Consents and Approvals 9
3.8 Litigation 9
3.9 Certain Interests 9
3.10 Taxes 10
3.11 Authority 10
3.12 Investment Intent 10
3.13 Sophisticated Investor 11
3.14 Powers of Attorney 11
3.15 Full Disclosure; Limitations. 11
4. Representations and Warranties of the Buyer 11
5. Covenants 11
5.1 Access to Information 11
5.2 Inspection 12
5.3 Conduct of Business 12
5.4 Standstill 13
5.5 Conditions 13
5.6 Option 13
5.6.1 Exercise 14
5.6.2 Exercise Price 14
5.6.3 Adjustments 14
5.6.4 Term 14
6. Buyer's Conditions Precedent 14
7. Seller's Conditions Precedent 15
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8. The Closing 15
8.1 Buyer's Deliveries 15
8.1.1 CEC Stock 15
8.1.2 Evidence of Authority 15
8.1.3 Additional Documents 16
8.2 Seller's Deliveries 16
8.2.1 Shares 16
8.2.2 Spousal Ratification 16
8.2.3 Other Shareholders 16
8.2.4 Additional Documents 16
8.3 Escrow Disbursement 16
8.3.1 Distribution of Documents 16
8.3.2 Option Exercise 17
8.3.3 Escrow Agent Matters 17
8.4 Costs 17
8.5 Risk of Loss 18
9. Seller's Indemnification 18
10. Termination 18
11. Default 18
12. Arbitration 19
13. Miscellaneous 19
13.1 Time 19
13.2 Notices 19
13.3 Representations and Warranties 20
13.4 Cooperation 20
13.5 Choice of Law 20
13.6 Headings 20
13.7 Entire Agreement 20
13.8 Assignment 20
13.9 Amendment 21
13.10 Severability 21
13.11 Attorney Fees 21
13.12 Waiver 21
13.13 Brokerage 21
13.14 Counterparts 21
13.15 Restricted Legend 21
13.16 ACKNOWLEDGMENTS AND ADMISSIONS 22
13.17 JOINT ACKNOWLEDGMENT 22
13.18 WAIVER OF JURY TRIAL, PUNITIVE DAMAGES, ETC 22
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Schedule "3.1" - Ownership of Shares
Schedule "3.2" - Assumed Obligations
Schedule "3.3" - Capitalization
Schedule "3.4" - Subsidiaries
Schedule "3.6" - Legal Requirements
Schedule "3.7" - Consents and Approvals
Schedule "3.8" - Litigation
Schedule "3.9" - Certain Interests
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STOCK PURCHASE AGREEMENT
THIS AGREEMENT is entered into effective the 31st day of
January, 2001, between WILLIAM STUART PRICE, an individual (the "Seller"), and
CARMEN ACQUISITION CORP., an Oklahoma corporation (the "Buyer").
BACKGROUND:
A. The Seller owns seven hundred two thousand (702,000) shares (the "Seller
Shares") of common stock, par value $.01, of RAM Energy, Inc., a Delaware
corporation (the "Corporation") (the "RAM Common Stock").
B. The Buyer desires to acquire and the Seller desires to sell to the Buyer on
the terms and conditions set forth in this Agreement: (a) six hundred
seventy-four thousand five hundred (674,500) of the Seller Shares of RAM Common
Stock (the "Acquisition Shares"); and (b) an option to purchase all of the
remaining twenty-seven thousand five hundred (27,500) Seller Shares of RAM
Common Stock (the "Option Shares" and together with the Acquisition Shares, the
"Shares").
NOW, THEREFORE, in consideration of the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Sale Agreement. Subject to the terms and conditions of this Agreement, the
Buyer agrees to purchase and the Seller agrees to sell the Shares. On the
Closing Date (as hereinafter defined) absolute ownership of the Acquisition
Shares will be transferred to the Buyer free and clear of all liens, claims and
encumbrances and on exercise of the Option (as hereinafter defined) absolute
ownership of the Option Shares will be transferred to the Buyer free and clear
of all liens, claims and encumbrances.
2. Purchase Price. On the Closing Date, in consideration for the sale of the
Acquisition Shares and the grant of the Option to the Buyer, the Buyer will pay
to the Seller as provided in paragraph 8 of this Agreement $7.33 per Acquisition
Share (the "Purchase Price") payable in shares of Chesapeake Energy Corporation
("CEC") common stock (the "CEC Stock"). The number of shares of CEC Stock
constituting the Purchase Price will be determined based on the Average Price
(as hereinafter defined) and is referred to herein as the "Purchase Price
Shares". The Purchase Price and the Purchase Price Shares deliverable with
respect thereto will be adjusted and paid as follows:
2.1 Closing Adjustments. On the Closing Date, the Purchase Price
will be decreased by the per Acquisition Share amount of any
cash distributed or paid by the Corporation to the Seller as
consulting fees, directors fees or other compensation or with
respect to the Acquisition Shares at any time after
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January 1, 2001, and on or before the Closing Date. In
addition to the foregoing adjustments, any non-cash
distributions made by the Corporation with respect to the
Acquisition Shares after January 1, 2001, and on or before the
Closing Date will be assigned to and be the sole property of
the Buyer free and clear of all liens, claims and
encumbrances. To the extent received by the Seller, the Seller
agrees to hold such non-cash distribution in trust for the
Buyer and to deliver such distribution to the Buyer on the
Closing Date in the same form as received by the Seller.
2.2 Average Price. The "Average Price" will be determined by
adding the daily closing price of the CEC Stock as reported in
The Wall Street Journal for the ten (10) consecutive trading
days commencing on the twelfth (12th) trading day prior to the
Closing Date and dividing the product by ten (10).
2.3 Registration Statement. The Buyer will use its best efforts to
cause CEC to: (a) file a registration statement under the
Securities Exchange Act of 1933 (the "33 Act") covering the
resale of the Purchase Price Shares (the "Registration
Statement") within sixty (60) days after the Closing Date; (b)
cause the Registration Statement to be declared effective by
the Securities and Exchange Commission ("SEC") within one
hundred twenty (120) days after the filing date of the
Registration Statement; and (c) cause the Registration
Statement to remain effective until the first anniversary of
the Closing Date.
2.4 Make Whole Payment. The Purchase Price will be adjusted if the
Selling Price (as hereinafter defined) is less than the
Average Price with the adjustment to be determined by
multiplying the difference between the Average Price and the
Selling Price by the number of Purchase Price Shares sold
during the Averaging Period (the "Adjustment Amount"). The
"Selling Price" will be determined by multiplying the Daily
Price for each Selling Day times the number of Purchase Price
Shares sold on such Selling Day, adding the sums for all
Selling Days during the Averaging Period and dividing the sum
by the total number of Purchase Price Shares sold during the
Averaging Period. As used in this paragraph: (a) "Daily Price"
means the closing price of the CEC Common Stock as reported in
The Wall Street Journal on each Selling Day; (b) "Selling Day"
means a trading day on which the Seller makes sales of any
Purchase Price Shares; and (c) "Averaging Period" means the
ninety (90) calendar day period commencing with the date the
registration of the Purchase Price Shares is declared
effective. Within three (3) business days after the earlier of
the date all of the Purchase Price Shares are sold or the end
of the Averaging Period, the Seller will furnish to the Buyer
a reconciliation of each sale of Purchase Price Shares. The
Seller and the Buyer acknowledge and agree that if the Average
Price exceeds the Selling Price, the Buyer will pay the
Adjustment Amount to the Seller by wire transfer of
immediately available funds within three (3) business days
after determination of the Adjustment Amount. If the Selling
Price exceeds the Average Price, no Purchase Price adjustment
will be made pursuant to this paragraph 2.4.
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3. Representations and Warranties of the Seller. Certain representations and
warranties of the Seller are made to the best knowledge of the Seller. The Buyer
acknowledges and understands that the Seller does not own a controlling interest
in the Corporation, that the Seller is neither an officer nor a director of the
Corporation and that all such representations as to the Corporation are made to
the best of the Seller's actual knowledge as a non-controlling shareholder. As
an inducement to the Buyer to enter into this Agreement, the Seller represents
and warrants to the Buyer that as of the date of this Agreement and the Closing
Date:
3.1 Ownership of Shares. The Seller has and will have on the
Closing Date good and marketable title to the Acquisition
Shares and the Seller has and will have during the term of the
Option good and marketable title to the Option Shares, free
and clear of all liens, encumbrances, charges, equities,
proxies, voting trusts, restrictions, agreements, rights of
first refusal and imperfections of title other than those
items listed at Schedule "3.1" attached as a part hereof. The
Shares represent and will represent as of the Closing Date not
less than 25.7426% of the outstanding shares of RAM Common
Stock on a fully diluted basis. No person or entity other than
the Buyer has: (a) any interest in the Shares, either of
record or beneficially; (b) the right to ownership or
possession of the Shares; or (c) the right to rescind, revoke,
disaffirm, terminate or invalidate this Agreement or the
conveyance of the Shares.
3.2 No Assumption of Obligations. Except as set forth in Schedule
"3.2" attached as a part hereof, the execution and
consummation of this Agreement by the Buyer will not obligate
the Buyer with respect to (or result in the assumption by the
Buyer of) any obligation of the Seller under or with respect
to any liability, agreement or commitment relating to the
Shares including, without limitation, any shareholder
agreement or similar agreement relating to the Shares or
regulating the business, affairs, properties or finances of
the Corporation.
3.3 Capitalization. The authorized capital stock of the
Corporation consists of: (a) fifteen million (15,000,000)
shares of the RAM Common Stock of which two million seven
hundred twenty-seven thousand (2,727,000) shares have been
issued to the persons set forth at Schedule "" attached as a
part hereof; and (b) five million (5,000,000) shares of
preferred stock, par value $.01 (the "RAM Preferred Stock" and
together with the RAM Common Stock, the "RAM Stock"), of which
no shares have been issued or are outstanding. There are no
classes of capital stock authorized other than the RAM Stock.
All of the Shares have been validly issued and are fully paid
and nonassessable. Except as set forth in Schedule "3.3" there
is no other issued and outstanding shares of the RAM Stock and
there are no shareholder agreements, outstanding or authorized
subscriptions, options, warrants, calls, rights, commitments
or any other agreement of any character obligating the Seller
or other party to transfer any shares of the RAM Stock or
obligating the Corporation to issue any
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additional shares of the RAM Stock or to issue any other
securities convertible into or evidencing the right to
subscribe for any shares of the RAM Stock.
3.4 Subsidiaries. Except as set forth in Schedule "3.4" to the
best knowledge of the Seller: (a) the Corporation has no
direct or indirect subsidiary corporations, partnerships,
limited liability companies or other entities (the
"Subsidiaries"); (b) the Corporation owns directly or
indirectly one hundred percent (100%) of the capital stock or
equity interests in each Subsidiary; and (c) there is no other
issued and outstanding capital stock or equity interest in
such Subsidiary and there are no shareholder agreements,
outstanding or authorized subscriptions, options, warrants,
calls, rights, commitments or any other agreement of any
character obligating the Seller or other party to transfer any
interest in the Subsidiary or obligating the Subsidiary to
issue any additional equity interest in such Subsidiary or to
issue any other securities convertible into or evidencing the
right to subscribe for any equity interest in such Subsidiary.
3.5 SEC Documents. To the best knowledge of the Seller, the Buyer
has received each registration statement, report, definitive
proxy statement or definitive information statement and all
exhibits thereto filed since December 31, 1998, each in the
form (including exhibits and any amendments thereto) filed
with the SEC (collectively, the "RAM Reports"). To the best
knowledge of the Seller, the RAM Reports, which, except as
otherwise disclosed, were filed with the SEC in a timely
manner, constitute all forms, reports and documents required
to be filed by the Corporation under the 33 Act, the
Securities Exchange Act of 1934, as amended (the "34 Act") and
the rules and regulations promulgated thereunder. As of their
respective dates, the RAM Reports (a) complied as to form in
all material respects with the applicable requirements of the
33 Act and the 34 Act together with all rules and regulations
promulgated thereunder and (b) did 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 made therein not misleading. To the best knowledge
of the Seller, each of the balance sheets of the Corporation
included in or incorporated by reference into the RAM Reports
(including the related notes and schedules) fairly presents
the financial position of the Corporation as of its date and
each of the statements of income, retained earnings and cash
flows of the Corporation included in or incorporated by
reference into the RAM Reports (including any related notes
and schedules) fairly presents the results of operations,
retained earnings or cash flows, as the case may be, of the
Corporation for the periods set forth therein (subject, in the
case of unaudited statements, to normal year-end audit
adjustments which would not be material in amount or effect),
in each case in accordance with generally accepted accounting
principles consistently applied during the periods involved,
except as may be noted therein and except, in the case of any
unaudited statements, as permitted by Form 10-Q promulgated
under the 34 Act.
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3.6 Legal Requirements. To the best knowledge of the Seller, the
Corporation and each Subsidiary: (a) is duly organized,
validly existing and in good standing under the laws of the
state of formation of such entity; (b) is duly qualified,
licensed and in good standing to do business in each
jurisdiction in which the Corporation or the Subsidiary owns,
leases or operates property or conducts business; (c) has all
requisite power to own, lease and operate all material assets
and business of the Corporation or Subsidiary as now being
conducted; and (d) holds all required licenses and permits for
carrying on all aspects of the business of the Corporation or
the Subsidiary. The Corporation and each Subsidiary has
complied with all applicable federal, state or local statutes,
laws and regulations including, without limitation, any
applicable building, zoning or other law, ordinance or
regulation affecting the operation of such entity's business.
At Schedule "3.6" attached hereto as a part hereof are true
and correct copies of the Corporation's Certificate of
Incorporation and Bylaws.
3.7 Consents and Approvals. Except as disclosed in Schedule "3.7"
attached hereto as a part hereof, the execution, delivery,
performance and consummation of this Agreement does not and
will not: (a) violate, conflict with or constitute a default
or an event that, with notice or lapse of time or both, would
be a default, breach or violation under any term or provision
of any instrument, agreement, contract, commitment, license,
promissory note, conditional sales contract, indenture,
mortgage, deed of trust, lease or other agreement, instrument
or arrangement to which the Seller or, to the best knowledge
of the Seller, the Corporation or any Subsidiary is a party or
is bound; (b) violate, conflict or constitute a breach of any
statute, regulation or judicial or administrative order,
award, judgment or decree to which the Seller or, to the best
knowledge of the Seller, the Corporation or any Subsidiary is
a party or is bound; or (c) result in the creation, imposition
or continuation of any adverse claim or interest, or any lien,
encumbrance, charge, equity or restriction of any nature
whatsoever, on or affecting the Seller or the Shares.
3.8 Litigation. To the best knowledge of the Seller, except as
listed in Schedule "3.8" attached hereto as a part hereof,
there is no action, suit or proceeding pending or threatened
against the Corporation, any Subsidiary, the Seller or the
Shares and no proceeding, investigation, charge, audit or
inquiry threatened or pending before or by any federal, state,
municipal or other governmental court, department, commission,
board, bureau, agency or instrumentality which might result in
an adverse effect on the Corporation, any Subsidiary, the
Seller, the Corporation's business or the Shares.
3.9 Certain Interests. To the best knowledge of the Seller, except
as disclosed in Schedule "3.9" attached hereto as a part
hereof: (a) no officer or director of the Corporation or any
relative or affiliate of such officer or director, has
acquired any interest in any of the property of the
Corporation or any Subsidiary (except as a stockholder of the
Corporation) or has entered into any business relationship
with the Corporation or any Subsidiary (except as an employee,
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officer, director or stockholder) of a nature which would be
required to be disclosed in a proxy statement relating to the
election of directors filed under the 34 Act; and (b) other
than the Subsidiaries, the Corporation does not directly or
indirectly own any interest in any corporation, partnership,
limited liability company, trust, joint venture or other
entity.
3.10 Taxes. To the best knowledge of the Seller: (a) all tax
returns and reports of the Corporation and the Subsidiaries
required by law to be filed have been filed or valid
extensions have been obtained; (b) the returns which have been
filed are true and correct and all taxes shown as due thereon
have been paid; (c) all taxes and other governmental charges
which are due and payable by the Corporation and any
Subsidiary have been paid and recorded in the appropriate
accounting records; (d) there is no pending or known
threatened claim against the Corporation or any Subsidiary for
payment of any additional taxes; and (e) the Corporation has
not joined in a consolidated tax return and is currently taxed
as a "C Corporation."
3.11 Authority. The Seller is an individual, has taken all
necessary action to authorize the execution, delivery and
performance of this Agreement and has adequate power,
authority and legal right to enter into, execute, deliver and
perform this Agreement and to consummate the transactions
contemplated hereby. This Agreement is legal, valid and
binding with respect to the Seller and is enforceable in
accordance with its terms. On execution, delivery and
performance of this Agreement in accordance with its terms,
the Buyer will receive ownership of one hundred percent (100%)
of the Shares free of all claims, liens, encumbrances,
obligations and liabilities of any kind including, without
limitation, the right of any person to rescind, revoke,
disaffirm, terminate or invalidate this Agreement or the
conveyance of the Shares.
3.12 Investment Intent. The Seller is acquiring the Purchase Price
Shares for investment purposes only and not with a view to or
in connection with a distribution within the meaning of the 33
Act. Accordingly the Seller acknowledges that the Purchase
Price Shares will not be sold, assigned, pledged or otherwise
transferred in the absence of an effective registration
statement under the 33 Act except in accordance with a valid
exemption from registration. The Seller understands and agrees
that the certificates representing the Purchase Price Shares
will have a legend imprinted thereon to the following effect:
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR UNDER STATE SECURITIES LAWS. SUCH SHARES OF COMMON STOCK
MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID
SECURITIES ACT COVERING THE TRANSFER OR AN OPINION OF COUNSEL
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SATISFACTORY TO THE ISSUER THAT AN EXEMPTION FROM REGISTRATION
IS AVAILABLE OR THAT REGISTRATION UNDER SAID SECURITIES ACT IS
NOT REQUIRED."
3.13 Sophisticated Investor. The Seller: (a) is an "accredited
investor" as that term is defined in Regulation D promulgated
pursuant to the 33 Act; (b) has the knowledge and experience
in financial matters, business matters and investments to
evaluate the merits and risks of the transaction to be
consummated under this Agreement including, without
limitation, the determination of the value of the RAM Stock
and the CEC Stock; (c) has had the opportunity to review the
filings by CEC with the SEC and is aware that no federal or
state agency has made any findings or determinations as to the
fairness of this transaction; and (d) in making the decision
to enter into and consummate this Agreement has relied on an
independent investigation made by the undersigned or related
representatives, including the undersigned's own professional
tax and other advisors.
3.14 Powers of Attorney. There are no outstanding powers of
attorney relating to or affecting the Shares or the Seller's
interest in the Shares.
3.15 Full Disclosure; Limitations. This Agreement, any schedule
referenced in or attached to this Agreement, any document
furnished to the Buyer under this Agreement and any
certification furnished to the Buyer under this Agreement does
not contain any untrue statement of a material fact and does
not omit to state a material fact necessary to make the
statements made, in the circumstances under which the
statements were made, not misleading. All of the
representations and warranties in paragraph 3 of this
Agreement are true and correct as of the date made and will be
true and correct as of the Closing Date.
4. Representations and Warranties of the Buyer. The Buyer is a corporation duly
formed and in good standing under the laws of the State of Oklahoma. The Buyer
is duly authorized and empowered to execute, deliver and perform this Agreement
and all corporate and other action necessary for the execution, delivery and
performance of this Agreement has been duly and validly taken.
5. Covenants. The parties agree to perform the following prior to the Closing
Date:
5.1 Access to Information. During the period commencing on the
date of this Agreement and ending on the Closing Date, the
Seller will afford the Buyer and the authorized
representatives of the Buyer, full access during normal
business hours to the properties, books and records of the
Seller, his lawyers and accountants regarding the Corporation
to make such investigation as the Buyer desires regarding the
Corporation, the Subsidiaries, the business of the Corporation
and the Subsidiaries and the Shares. In addition, the Seller
will make available to the Buyer and the authorized
representatives of the Buyer,
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all information and pleadings relating to the Seller's claims
against the Corporation in connection with stock options
exercisable upon the sale of stock by the Seller or Bennett.
5.2 Inspection. On or before the Closing Date (the "Inspection
Period"), the Buyer will conduct such investigation and
inspection (the "Inspection") with respect to the properties,
books, records, legal documents, financial accounts,
contracts, title records and prospects of the Corporation, the
Subsidiaries, the Corporation's business and the Shares as the
Buyer deems appropriate. If the Buyer determines, in the
Buyer's sole discretion, that the Corporation's business, the
Corporation, the Subsidiaries or the Shares are unsatisfactory
for any reason whatsoever, (including, without implied
limitation, any adverse change) the Buyer will have the option
to terminate this Agreement by written notice to the Seller
prior to the Closing Date or to provide written notice to the
Seller setting forth the Buyer's objections. If the Seller is
unable to satisfy the Buyer's objections, the Buyer will have
the option to: (a) waive such objections; (b) extend the
Closing Date by that period of time mutually agreed to in
writing by the Seller which is reasonably required to enable
the Seller to satisfy such objections; or (c) terminate this
Agreement by written notice to the Seller.
5.3 Conduct of Business. Prior to the Closing Date the Seller,
without undertaking any independent investigation, agrees to
promptly notify the Buyer in writing in the event the Seller
discovers any of the following:
5.3.1 If any option, warrant or other convertible security
entitling the holder thereof to acquire an equity
interest in the Corporation or any Subsidiary is
issued or exercised or the Corporation or any
Subsidiary: (a) amends its Certificate of
Incorporation, Bylaws or other formative and
governing documents; (b) splits, combines or
reclassifies any outstanding shares of capital stock
or other equity interest or declares, sets aside or
pays any dividend payable in cash, stock or property
or makes any other distributions with respect to
shares of capital stock or other equity interest; (c)
issues, sells, pledges, disposes of or encumbers any
additional shares of, or grants or issues rights of
any kind to acquire any shares of capital stock or
other equity interest of any class; or (d) redeems,
purchases, acquires or offers to acquire any shares
of capital stock or other equity interest.
5.3.2 If the Corporation or any Subsidiary: (a) transfers,
sells, mortgages, pledges, encumbers or disposes of
any material assets other than to unaffiliated third
parties in the ordinary course of business for fair
consideration; (b) makes or permits any amendment or
termination of any material contract, agreement or
commitment to which the Corporation or Subsidiary may
be bound; (c)
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makes any capital expenditures or commits to make any
capital expenditure or performs unfulfilled
commitments to make capital expenditures, whenever
made or entered into not consistent with past
business practices; (d) pays or becomes liable to pay
any taxes, assessments, fees, penalties, interest or
other governmental (state or federal) charges not
consistent with past business practices; (e)
experiences any material casualty or similar loss; or
(f) incurs any material amount of indebtedness for
borrowed money or other obligations.
5.3.3 If the Corporation, any Subsidiary or the
shareholders, affiliates, advisors, or
representatives of the Corporation or any Subsidiary,
directly or indirectly, encourage, initiate, engage
in discussions or negotiations with, or provide any
information to, any corporation, partnership, person
or other entity or group, other than the Buyer
concerning any merger, sale of substantial assets,
sale of capital stock, acquisition of a significant
equity interest or any similar transaction involving
the Corporation, any Subsidiary, the Corporation or
any Subsidiary's business or the Shares.
5.4 Standstill. Until the earlier of the purchase of all of the
Shares or the termination of this Agreement, the Seller will
not: (a) enter into any agreement, arrangement or
understanding involving the sale, transfer, assignment,
redemption or other disposition of, or grant a security
interest in or optional rights to purchase or otherwise
acquire any of the Shares; (b) directly or indirectly,
solicit, initiate or encourage any inquiries or proposals
from, negotiate with or provide any non-public information to
any person other than the Buyer relating to any transaction
involving the sale or redemption of the Shares or any merger,
consolidation, business combination, share exchange or similar
transaction involving the Corporation, any Subsidary or any
business of the Corporation or any Subsidiary; or (c) directly
or indirectly meet or negotiate with any holders (the
"Noteholders") of the RAM 11 1/2% Senior Notes due 2008 (the
"Senior Notes") with respect to any proposed recapitalization
or other transaction affecting the Senior Notes.
5.5 Conditions. The Seller will use the Seller's best efforts to
cause the conditions in paragraphs 6 and 8 to be satisfied.
5.6 Option. For value received, the Seller hereby grants to the
Buyer the right (the "Option") to purchase from the Seller, at
any time after February 1, 2002 but not later than the
Termination Date (as hereinafter defined), all of the Option
Shares of RAM Common Stock and all other equity interests of
the Seller in the Corporation, at the Exercise Price (as
hereinafter defined) and on the terms and conditions set forth
herein. It is agreed and understood that the Option is
specifically conditioned upon the Buyer's consummation of the
purchase of the
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Acquisition Shares and, if the closing of the purchase of the
Acquisition Shares does not occur for any reason, then the
Option will be null and void.
5.6.1 Exercise.On presentation of a written notice of
exercise of this Option, together with payment of the
Exercise Price for the shares of RAM Common Stock
thereby purchased, at the office of the Escrow Agent
(as hereinafter defined) in Oklahoma City, Oklahoma,
the Buyer will be entitled to receive a certificate
or certificates for the shares of RAM Common Stock so
purchased.
5.6.2 Exercise Price. The Buyer will pay to the Seller
$7.33 per Option Share, as adjusted (the "Exercise
Price") payable in cash.
5.6.3 Adjustments. On the exercise date, the Exercise Price
will be decreased by the per Option Share amount of
any cash distributed or paid by the Corporation to
the Seller as consulting fees, directors fees or
other compensation or with respect to the Option
Shares at any time after January 1, 2001, and on or
before the date of exercise of the Option. In
addition to the foregoing adjustments, any non-cash
distributions made by the Corporation with respect to
the Option Shares after January 1, 2001, and on or
before the date of exercise of the Option will be
assigned to and be the sole property of the Buyer
free and clear of all liens, claims and encumbrances.
To the extent received by the Seller, the Seller
agrees to hold such non-cash distribution in trust
for the Buyer and to deliver such distribution to the
Buyer on the date of exercise of the Option in the
same form as received by the Seller.
5.6.4 Term. This Option may be exercised at any time after
the date hereof and on or before February 15, 2003
(the "Termination Date"). If the Option to purchase
all or part of the Option Shares has not been
exercised prior to the Termination Date, this Option
and all of the rights of the Buyer hereunder will
expire and terminate on such date without notice by
the Seller.
6. Buyer's Conditions Precedent. The obligation of the Buyer to consummate the
transactions contemplated by this Agreement is subject to the satisfaction or
waiver (subject to applicable law) at or prior to the Closing Date of each of
the following conditions: (a) no preliminary or permanent injunction or other
order will have been issued by any court of competent jurisdiction or any
regulatory body preventing consummation of the transactions contemplated by this
Agreement; (b) no action will have been commenced or threatened against the
Seller, the Corporation, any Subsidiary, the Buyer or any of their respective
affiliates, associates, officers or directors seeking damages arising from, to
prevent or challenge the transactions contemplated by this Agreement; (c) all
representations and warranties of the Seller contained herein will be true and
correct in all material respects on and as of the Closing Date; (d) the Seller
will have performed or satisfied on and as of the Closing Date, all obligations,
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covenants, agreements and conditions contained in this Agreement to be performed
or complied with by the Seller including the sale of all of the Acquisition
Shares; (e) all actions, proceedings, instruments and documents required to
carry out the transactions contemplated hereby will have been satisfactory to
the Buyer and the Buyer's counsel, and the Seller will have delivered such
additional certificates and other documents as the Buyer reasonably requests
including, without limitation, such certificates of the Seller dated the Closing
Date evidencing compliance with the conditions set forth in this paragraph 6;
(f) there will have been no material adverse change in the business or condition
of the Corporation, any Subsidiary or the Buyer's business; (g) the Buyer will
have obtained any necessary approvals or clearance for this transaction required
by the Hart-Scott-Rodino Antitrust Improvements Act of 1976; (h) the Shares will
constitute not less than 25.7426% of all of the outstanding shares of the RAM
Common Stock; (i) the Buyer will have reached such agreements with the
Noteholders as the Buyer determines, in the Buyer's sole discretion, to be
necessary to facilitate the closing of this transaction; (j) the Buyer will have
completed the Buyer's due diligence pursuant to paragraph 5.2 of this Agreement
and determined to consummate the transaction; and (k) the Buyer will have
acquired all of the RAM Common Stock owned by Annie Fisher Bennet and such stock
will constitute not less than 24.75% of all of the outstanding shares of the RAM
Common Stock.
7. Seller's Conditions Precedent. The obligation of the Seller to consummate the
transactions contemplated by this Agreement is subject to the satisfaction or
waiver (subject to applicable law) at or prior to the Closing Date of each of
the following conditions: (a) no preliminary or permanent injunction or other
order will have been issued by any court of competent jurisdiction or any
governmental or regulatory body preventing consummation of the transactions
contemplated by this Agreement; (b) no action will have been commenced or
threatened against the Seller, the Corporation, the Buyer or any of their
respective affiliates, associates, officers or directors seeking damages arising
from, to prevent or to challenge the transactions contemplated by this
Agreement; and (c) the Buyer will have performed in all material respects all
obligations, agreements and conditions contained in this Agreement to be
performed or complied with by the Buyer.
8. The Closing. Unless extended as provided herein, this Agreement will be
consummated at 10:00 a.m. local time in the offices of Commercial Law Group,
P.C. on March 31, 2001 (the "Closing Date"). The parties may, by mutual consent,
change the Closing Date to any other date that they may agree upon.
8.1 Buyer's Deliveries. On the Closing Date, the Buyer will
deliver or cause to be delivered to an escrow agent selected
by the Buyer and acceptable to the Seller (the "Escrow Agent")
the following items (all documents will be duly executed,
acknowledged where required) (the "Buyer Closing Documents"):
8.1.1 CEC Stock. CEC Stock certificates evidencing the
Purchase Price Shares;
8.1.2 Evidence of Authority. Such corporate resolutions,
certificates of good standing, incumbency
certificates and other evidence of
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authority with respect to the Buyer as might be
reasonably requested by the Seller; and
8.1.3 Additional Documents. Such additional documents as
might be reasonably requested by the Seller to
consummate this Agreement.
8.2 Seller's Deliveries. On the Closing Date, the Seller will
deliver or cause to be delivered to the Escrow Agent the
following items (all documents will be duly executed and
acknowledged where required) (the "Seller Closing Documents"):
8.2.1 Shares. Each original stock certificate evidencing
the Shares, a completed and executed powers separate
from certificate (with signature guaranteed to the
satisfaction of the Buyer) for both the Acquisition
Shares and the Option Shares and all stock transfer
tax stamps affixed;
8.2.2 Spousal Ratification. Such ratifications, waivers and
assignments from the spouse of the Seller who is not
a party to this Agreement as might be reasonably
requested by the Buyer;
8.2.3 Other Shareholders. Such ratifications and waivers
from any party who owns or claims any right, title or
interest in and to any of the Shares as might be
reasonably requested by the Buyer; and
8.2.4 Additional Documents. Such additional documents as
might be reasonably requested by the Buyer to
consummate this Agreement.
8.3 Escrow Disbursement. Upon receipt by the Escrow Agent of the
Buyer Closing Documents and the Seller Closing Documents in
form and substance satisfactory to the Buyer, the Seller and
the Escrow Agent, the Escrow Agent will cause the Shares and
the related transfer documents to be delivered to the
Corporation or the Corporation's transfer agent for transfer
of the Acquisition Shares for issuance in the name of the
Buyer or the Buyer's designee with the Option Shares being
reissued in the name of the Seller.
8.3.1 Distribution of Documents. Upon receipt by the Escrow
Agent of a stock certificate representing the
Acquisition Shares in the name of the Buyer or the
Buyer's designee (the "Reissued Certificate") in
strict accordance with the terms of this Agreement,
the Escrow Agent will: (a) deliver the Seller Closing
Documents (including the Reissued Certificate but
excluding the Option Shares and the stock power
relating to the Option Shares) to the Buyer; (b) will
deliver the Buyer Closing Documents to the Seller;
and (c) will retain the Option Shares and the stock
power relating thereto until the earlier of the
exercise of the Option or the Termination Date. In
the event
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the Escrow Agent has not received the Reissued
Certificate in accordance with the terms of this
Agreement and the Buyer has not waived such defect in
writing within ten (10) days after the Closing Date,
at any time thereafter, in the sole discretion of the
Buyer upon written notice to the Seller and the
Escrow Agent, the Escrow Agent will deliver the Buyer
Closing Documents to the Buyer and the Seller Closing
Documents to the Seller and each of the parties will
continue to have their respective rights under this
Agreement.
8.3.2 Option Exercise. On exercise of the Option, the Buyer
will deliver the Exercise Price to the Escrow Agent
and the Escrow Agent will cause the Option Shares and
stock power to be delivered to the Corporation or its
transfer agent for reissuance in the name of the
Buyer and upon receipt of the stock certificate for
the Option Shares in the name of the Buyer, the
Escrow Agent will deliver the Exercise Price to the
Seller.
8.3.3 Escrow Agent Matters. The duties and obligations of
the Escrow Agent will be determined solely by the
express provisions of this Agreement and the Escrow
Agent will not be liable except for the performance
of the duties and obligations specifically set out in
this Agreement. The Escrow Agent acts hereunder as a
depository only, and is not responsible or liable for
the sufficiency, correctness, genuineness or validity
of the subject matter of the escrow, or any part
thereof, or for the form or execution thereof, or for
the identity or authority of any person. The Escrow
Agent will not be responsible for any failure or
inability of any party to this Agreement or of anyone
else, to deliver cash, papers, letters or other
documents to the Escrow Agent or otherwise honor any
of the provisions of this Agreement. In the event the
Escrow Agent becomes involved in litigation in
connection with this escrow, the undersigned jointly
and severally agree to indemnify and hold the Escrow
Agent harmless from all losses, costs, damages,
expenses and attorneys' fees suffered or incurred by
the Escrow Agent as a result thereof. The obligations
of the Escrow Agent under this Agreement will be
performed at the office of the Escrow Agent in
Oklahoma City, Oklahoma. For the services to be
rendered hereunder, the Escrow Agent will be entitled
to a reasonable fee and reimbursement of all out of
pocket costs and expenses.
8.4 Costs. The Seller will pay the Seller's attorney fees, the
Buyer will pay the Buyer's attorney fees and the Seller and
the Buyer will each pay fifty percent (50%) of the Escrow
Agent's fees.
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8.5 Risk of Loss. Effective on delivery of the Seller Closing
Documents to the Escrow Agent, beneficial ownership and the
risk of loss of the Acquisition Shares will pass from the
Seller to the Buyer (subject to the rights of the Buyer under
paragraph 8.3 of this Agreement).
9. Seller's Indemnification. The Seller agrees to pay, defend, indemnify,
reimburse and hold harmless the Buyer and the Buyer's directors, officers,
agents and employees (the "Indemnified Parties") for, from and against any loss,
damage, diminution in value, claim, liability, debt, obligation or expense
(including interest, reasonable legal fees, and expenses of litigation)
incurred, suffered, paid by or resulting to any of the Indemnified Parties and
which results from, arises out of or in connection with, is based upon, or
exists by reason of: (a) the execution, delivery, validity and enforceability of
this Agreement by the Seller; (b) the performance of this Agreement by the
Seller; (c) the Buyer not obtaining one hundred percent (100%) ownership of the
Acquisition Shares for the Purchase Price for any reason other than the
negligence or inaction of the Buyer; (d) litigation commenced by any third party
alleging that the execution, delivery or performance of this Agreement
constituted or constitutes a breach or violation of any agreement of the Seller;
(e) any misrepresentation of facts regarding title to the Shares contained in
this Agreement; (f) the existence of any facts or circumstances not actually,
currently or consciously known by the Buyer on the Closing Date and which
constitute a breach, violation or inaccuracy of, incorrectness in, or conflict
with any representation or warranty by the Seller contained in paragraph 3 of
this Agreement; or (g) any breach or default in performance by the Seller of any
covenant or obligation set forth in this Agreement. In addition to the
foregoing, the Seller will pay to the Indemnified Parties interest on the amount
of any loss, damage, claim, liability, debt, obligation or expense the payment
of which is or becomes due to the Indemnified Parties by the Seller, such
interest to be at a floating rate of interest equal to the prime rate published
from time to time in The Wall Street Journal. Claims for indemnification
involving the payment of money by the Seller to an Indemnified Party will be due
and payable by the Seller within ten (10) days after notification thereof.
Claims for indemnification involving amounts due to third parties will be
promptly paid by the Seller when due, subject to the Seller's right to contest
the same in good faith.
10. Termination. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned by: (a) mutual consent of the Seller and
the Buyer; (b) the Buyer, if the Buyer is not in default and the conditions set
forth in paragraph 6 of this Agreement have not been satisfied by the Seller or
waived by the Buyer; (c) the Seller, if the Seller is not in default, and the
conditions precedent set forth in paragraph 7 of this Agreement have not been
satisfied or waived by the Seller; (d) the Buyer, pursuant to paragraph 5.2 of
this Agreement; or (e) the Seller, if the closing does not occur by March 31,
2001 for any reason. In the event of termination, written notice thereof will be
given to the other party or parties specifying the provision pursuant to which
such termination is made. On termination pursuant to this paragraph 10, except
as provided in paragraph 9 hereof, this Agreement will become void and have no
effect and there will be no liability hereunder on the part of the Buyer.
11. Default. If a party fails to perform any obligation contained in this
Agreement, the party claiming default will serve written notice to the other
party specifying the nature of such default and demanding performance. If such
default has not been cured within ten (10) days after
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receipt of such default notice, the nondefaulting party will be entitled to
exercise all remedies arising at law or in equity by reason of such default,
including, without limitation, specific performance of this Agreement.
12. Arbitration. Any dispute under this Agreement will be submitted to binding
arbitration to be conducted in Oklahoma City, Oklahoma, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, except
that there will be one arbitrator selected by the Buyer, one arbitrator selected
by the Seller, and a third arbitrator selected by those two arbitrators. The
arbitrators will be instructed and empowered to take reasonable steps to
expedite the arbitration and the arbitrators' judgment will be final and binding
upon the parties subject solely to challenge on the grounds of fraud or gross
misconduct. The arbitration will be held in Oklahoma County, Oklahoma. Judgment
upon any verdict in arbitration may be entered in any court of competent
jurisdiction. Unless otherwise expressly set forth in this Agreement, the
procedures specified in this paragraph 12 will be the sole and exclusive
procedures for the resolution of disputes and controversies between the parties
arising out of or relating to this Agreement. Notwithstanding the foregoing, a
party may seek a preliminary injunction or other provisional judicial relief if
in such party's judgment such action is necessary to avoid irreparable damage or
to preserve the status quo.
13. Miscellaneous. It is further agreed as follows:
13.1 Time. Time is of the essence of this Agreement.
13.2 Notices. Any notice, demand or communication required or
permitted to be given by any provision of this Agreement will
be in writing and will be deemed to have been given and
received when delivered personally or by telefacsimile to the
party designated to receive such notice, or on the date
following the day sent by overnight courier, or on the third
(3rd) business day after the same is sent by certified mail,
postage and charges prepaid, directed to the following
addresses or to such other or additional addresses as any
party might designate by written notice to the other parties:
To the Buyer: Mr. Aubrey K. McClendon
Chesapeake Energy Corporation
6100 North Western
Oklahoma City, Oklahoma 73118
Telephone: (405) 848-8000
Telefacsimile: (405) 879-9580
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With a copy to: Ray Lees, Esquire
Commercial Law Group, P.C.
2725 Oklahoma Tower
210 Park Avenue
Oklahoma City, Oklahoma 73102
Telephone: (405) 232-3001
Telefacsimile: (405) 232-5553
To the Seller: William Stuart Price
c/o Apex Energy, LLC
601 South Boulder Street
1020 Petroleum Club Building
Tulsa, Oklahoma 74119
Telephone: (918) 599-0060
Telefacsimile: (918) 599-0062
13.3 Representations and Warranties. The respective representations
and warranties of the Seller and the Buyer contained herein or
in any certificates or other documents delivered prior to or
at the Closing Date will not be deemed waived or otherwise
affected by any investigation made by any party hereto. Such
representations and warranties will survive the Closing Date.
This paragraph 13.3 will have no effect on any other
obligation of the parties hereto, whether to be performed
before or after the Closing Date.
13.4 Cooperation. Prior to and at all times following the
termination of this Agreement the parties agree to execute and
deliver, or cause to be executed and delivered, such documents
and do, or cause to be done, such other acts and things as
might reasonably be requested by any party to this Agreement
to assure that the benefits of this Agreement are realized by
the parties.
13.5 Choice of Law. This Agreement will be interpreted, construed
and enforced in accordance with the laws of the State of
Oklahoma.
13.6 Headings. The paragraph headings contained in this Agreement
are for reference purposes only and are not intended to affect
in any way the meaning or interpretation of this Agreement.
13.7 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject
matter hereof and there are no agreements, understandings,
warranties or representations except as set forth herein.
13.8 Assignment. It is agreed that the parties may not assign such
party's rights nor delegate such party's duties under this
Agreement without the express written consent of the other
parties to this Agreement.
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13.9 Amendment. Neither this Agreement, nor any of the provisions
hereof can be changed, waived, discharged or terminated,
except by an instrument in writing signed by the party against
whom enforcement of the change, waiver, discharge or
termination is sought.
13.10 Severability. If any clause or provision of this Agreement is
illegal, invalid or unenforceable under any present or future
law, the remainder of this Agreement will not be affected
thereby. It is the intention of the parties that if any such
provision is held to be illegal, invalid or unenforceable,
there will be added in lieu thereof a provision as similar in
terms to such provisions as is possible and to be legal, valid
and enforceable.
13.11 Attorney Fees. If any party institutes an action or proceeding
against any other party relating to the provisions of this
Agreement, the party to such action or proceeding which does
not prevail will reimburse the prevailing party therein for
the reasonable expenses of attorneys' fees and disbursements
incurred by the prevailing party.
13.12 Waiver. Waiver of performance of any obligation or term
contained in this Agreement by any party, or waiver by one
party of the other's default hereunder will not operate as a
waiver of performance of any other obligation or term of this
Agreement or a future waiver of the same obligation or a
waiver of any future default.
13.13 Brokerage. The Seller represents to the Buyer that the Seller
has dealt with no broker in connection herewith. The Seller
agrees to hold the Buyer harmless from any claim for brokerage
commissions asserted by any other party as a result of
dealings with the Seller. The Buyer agrees to indemnify and
hold the Seller harmless from any claim for brokerage
commissions asserted by any party as a result of dealings with
the Buyer.
13.14 Counterparts. This Agreement may be executed in multiple
counterparts, each of which will be an original instrument,
but all of which will constitute one agreement.
13.15 Restricted Legend. The Buyer acknowledges that the Buyer is
acquiring the Acquisition Shares and, upon exercise of the
Option, the Option Shares for investment purposes for the
Buyer's own account and not with a view to, or for resale in
connection with, any distribution of such Shares within the
meaning of the 33 Act. The Buyer will not sell, transfer or
otherwise dispose of the Shares without registration under the
33 Act and state securities laws or qualification for
exemptions therefrom. The Buyer agrees that the Corporation
may place a stop transfer order with the Corporation's
transfer agent, if any, with respect to any noncomplying
transfer of the certificates representing any such shares,
which stop transfer order will be removed upon compliance with
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the provisions hereof. The Buyer agrees that each certificate
representing the Shares may be inscribed with a legend to the
foregoing effect.
13.16 ACKNOWLEDGMENTS AND ADMISSIONS. THE SELLER HEREBY REPRESENTS,
WARRANTS, ACKNOWLEDGES AND ADMITS THAT (A) THE SELLER HAS MADE
AN INDEPENDENT DECISION TO ENTER INTO THIS AGREEMENT, WITHOUT
RELIANCE ON ANY REPRESENTATION, WARRANTY, COVENANT OR
UNDERTAKING BY THE BUYER, WHETHER WRITTEN, ORAL OR IMPLICIT,
OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT OR IN
ANOTHER DOCUMENT EXECUTED BY THE BUYER AND DELIVERED AFTER THE
DATE HEREOF, (B) THERE ARE NO REPRESENTATIONS, WARRANTIES,
COVENANTS, UNDERTAKINGS OR AGREEMENTS BY THE BUYER AS TO THE
PURCHASE OF THE SHARES EXCEPT AS EXPRESSLY SET OUT IN THIS
AGREEMENT, (C) THE BUYER HAS NO FIDUCIARY OBLIGATION TOWARD
THE SELLER WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, (D) WITHOUT LIMITING ANY OF THE
FOREGOING, THE SELLER IS NOT RELYING UPON ANY REPRESENTATION
OR COVENANT BY THE BUYER, OR ANY REPRESENTATIVE THEREOF, AND
NO SUCH REPRESENTATION OR COVENANT HAS BEEN MADE, AS TO THE
PRESENT OR FUTURE VALUE OF THE CEC STOCK OR ANY OTHER MATTERS
RELATING TO THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT AND
(E) THE BUYER HAS RELIED UPON THE TRUTHFULNESS OF THE
ACKNOWLEDGMENTS IN THIS PARAGRAPH 13.16 IN DECIDING TO EXECUTE
AND DELIVER THIS AGREEMENT AND TO BECOME OBLIGATED HEREUNDER.
13.17 JOINT ACKNOWLEDGMENT. THIS WRITTEN AGREEMENT REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
13.18 WAIVER OF JURY TRIAL, PUNITIVE DAMAGES, ETC. EACH OF THE BUYER
AND THE SELLER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY
AND IRREVOCABLY (A) WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY A JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR DIRECTLY OR
INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR
ASSOCIATED HEREWITH, (B)
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WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY
"SPECIAL DAMAGES," AS DEFINED BELOW, (C) CERTIFIES THAT NO
PARTY HERETO NOR ANY REPRESENTATIVE OR COUNSEL FOR ANY PARTY
HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED
THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVERS, AND (D) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS PARAGRAPH.
AS USED IN THIS PARAGRAPH, "SPECIAL DAMAGES" INCLUDES ALL
SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES
(REGARDLESS OF HOW NAMED), BUT DOES NOT INCLUDE ANY PAYMENTS
OR FUNDS WHICH ANY PARTY HERETO HAS EXPRESSLY PROMISED TO PAY
OR DELIVER TO ANY OTHER PARTY HERETO.
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IN WITNESS WHEREOF, the Seller and the Buyer have executed
this Agreement effective as of the date first above written.
CARMEN ACQUISITION CORP., an Oklahoma
corporation
By /s/ Marcus C. Rowland
--------------------------------------------
Marcus C. Rowland, Executive Vice President
(the "Buyer")
/s/ William Stuart Price
-----------------------------------------------
WILLIAM STUART PRICE, individually
(the "Seller")
The undersigned Escrow Agent executes this Agreement this __ day of ______,
2001, solely for the purpose of accepting the escrow pursuant to the provisions
of paragraph 8 of this Agreement and the Escrow Agent will not otherwise be
bound by any of the terms or conditions hereof.
By /s/ Jackie L. Hill, Jr.
---------------------------------------------
Name Jackie L. Hill, Jr.
-------------------------------------------
Title
------------------------------------------
(the "Escrow Agent")
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