MANAGEMENT AGREEMENT
THIS AGREEMENT, dated May 17, 1995, is made and
entered into among Empire Gas Corporation, a Missouri
corporation ("Empire"), Northwestern Growth Corporation,
a South Dakota corporation ("NGC"), and SYN Inc., a
Delaware corporation ("SYN"), with respect to the
following facts:
A. Empire, NGC and Syn have entered into that
certain Agreement Among Initial Stockholders and SYN
Inc., dated May 17, 1995 (the "Stock Agreement"), which,
among other things, requires this Agreement to be made
for the reasons recited in the Stock Agreement (such
recitals being incorporated herein by this reference).
B. SYN and NGC, immediately following the
execution of this Agreement, will be entering into that
certain Purchase and Sale Agreement, dated as of May 17,
1995, with Sherman C. Vogel, Stephen A. Vogel, Jeffrey K.
Vogel, Jon M. Vogel, Jeanette Vogel, Synergy Group
Incorporated (with its subsidiaries, "Synergy"), and S&J
Investments (the "Synergy Acquisition Agreement"),
providing for the acquisition by SYN of Synergy (the
"Synergy Acquisition").
C. This Agreement is essential to the ability of
SYN to finance and consummate the Synergy Acquisition,
and to manage the assets and business to be acquired by
the Synergy Acquisition.
NOW, THEREFORE, in consideration of the
premises and the agreements exchanged herein, the parties
hereto agree as follows:
ARTICLE 1: ENGAGEMENT TO PLAN AND MANAGE
SYN, on behalf of itself and its subsidiaries,
and for the benefit of its stockholders (of which NGC is
a principal one), hereby engages Empire to perform the
planning and management of the assets and business
operations of SYN and its subsidiaries (the "Management
Services"), and Empire hereby accepts such engagement and
agrees to perform the Management Services, subject to the
direction of the Board of Directors of SYN (the "Board")
and in accordance with the terms of this Agreement.
ARTICLE 2: BUSINESS PLAN; BUDGET
Section 2.01 INITIAL BUSINESS PLAN. The parties
hereto have developed a business plan, a copy of which is
attached as Exhibit A to this Agreement ("Initial Plan"),
for the conduct of business operations of SYN and its
subsidiaries after the completion of the Synergy
Acquisition (the "SYN Operations"), showing:
(a) The general longer-term objectives (to be
accomplished in a three to five year period of
time);
(b) The preliminary detailed plans for
conducting the SYN Operations through the end of
SYN's fiscal year ending June 30, 1996 ("fiscal
1996"), including the plant, facilities and
equipment (at various locations), and the personnel
staffing at the locations, needed to carry on the
SYN Operations for the balance of fiscal 1996
following the Synergy Acquisition and during the
longer term of the plan; and
(c) Capitalized reserves for (i) transition
costs including such items as costs of meetings with
personnel at the outlets and branches acquired in
the Synergy Acquisition, retail mailings and other
items, not to exceed $500,000 in the aggregate, and
(ii) costs of shutting down Synergy's facility at
Farmingdale, New York, offering severance to Synergy
employees and incorporating Synergy's operations
into Empire's facilities in Lebanon, Missouri.
Section 2.02 INITIAL BUDGET. The parties hereto
have developed a budget ("Initial Budget") for the
conduct of the SYN Operations for the balance of fiscal
1996 following the Synergy Acquisition in accordance with
the Initial Plan. A copy of the Initial Budget is
attached as Exhibit B to this Agreement.
Section 2.03 UPDATED AND AMENDED BUSINESS PLANS AND
BUDGETS. At least 30 days prior to June 30, 1996 and at
least 30 days prior to each June 30 thereafter until the
term of this Agreement expires or is terminated
(hereinafter sometimes referred to as the "end of the
term of this Agreement"), Empire will develop, in
consultation with NGC, and obtain the approval of the
Board of:
(d) An updated version of the Initial Plan (or
of the most recent previously updated version
thereof) to provide a detailed business plan for the
SYN Operations for the 18 months following such June
30 and a longer-term business plan for the three- to
five-year period following such June 30 (the Initial
Plan or updated version thereof in effect at a given
time, including all amendments thereto up to such
time, is hereinafter referred to as the "Applicable
Plan"); and
(e) An updated version of the Initial Budge
(or of the most recent previously updated version
thereof) to provide a budget for the conduct of the
SYN Operations for the 18 months following such June
30, (the Initial Budget or updated version thereof
in effect at a given time for a particular period,
including all amendments thereto up to such time, is
hereinafter referred to as the "Applicable Budget").
Empire may amend an Applicable Plan or an Applicable
Budget, or both, at any time and from time to time by
preparing such amendment, submitting the same to the
Board with such supporting information as the Board may
require, and obtaining the Board's approval thereof, but
no such amendment shall be effective unless and until
approved by the Board.
SECTION 2.04 ACTING WITHIN APPLICABLE PLAN AND
BUDGET. Empire shall mange the SYN Operations,
commencing with the Synergy Acquisition and continuing
thereafter until the end of the term of this Agreement,
in accordance with the Applicable plan and within the
applicable Budget, without obtaining approval of the
Board of the details of such management, but subject to
approvals by the Board required by law and to the
requirements for approval by the Board specified in
Article 9 herein. Notwithstanding the foregoing:
(f) Empire may take such management action
with respect to the SYN Operations as it may deem
advisable to respond to, and attempt to curtail or
avoid material adverse consequences resulting from
material unplanned adverse developments when
(reasonably) there is inadequate time in which to
secure advance approval of such action by the Board,
but in such event the situation and action taken
shall be submitted with reasonable promptness to the
Board for such further action as the Board may then
deem advisable;
(g) In addition to action taken pursuant to
preceding paragraph (a), Empire may cause SYN to
make maintenance capital expenditures which
individually exceed the Applicable Budget for such
expenditures or category of expenditures by not more
than $10,000, but only if the Board is notified
prior to, or at, the time of such expenditures,
while such expenditures in excess of such $10,000
limit may not be made or committed to unless
authorized in advance by the Board; and
(h) If Empire becomes aware that aggregate
operating or administrative expenses likely will be
1% or more in excess of what is provided for in the
then Applicable Budget, Empire shall promptly notify
the Board of such expected excess.
SECTION 2.05 OTHER ACTION. Any action that needs
to be taken in the performance of the Management Services
that is not provided for in an Applicable Plan or
Applicable Budget or otherwise provided for in this
Agreement shall be taken in accordance with Empire's good
faith judgment as to what is in the best interests of SYN
and its subsidiaries.
ARTICLE 3: EMPIRE'S SERVICES; KEY MAN INSURANCE
SECTION 3.01 EFFORT REQUIRED. Empire under the
management of Paul S. Lindsey, jr. ("Lindsey") as the
chief executive officer of Empire, shall devote
sufficient time and resources to reasonably assure
successful performance by Empire for SYN of the
Management Services in accordance with this Agreement.
SECTION 3.02 KEY MAN INSURANCE. To compensate SYN
for the loss of services that would occur in the event of
Lindsey's death, at all times while this Agreement is in
effect SYN may maintain in effect (at SYN's expense)
insurance on the life of Lindsey in an amount not less
than $10,000,000, payable to SYN, and Lindsey will
cooperate by providing personal information and taking
physical examinations as required by the insurance
carrier for issuing and maintaining such insurance
coverage. The cost of such insurance shall not be
charged, directly or indirectly, in any way to Empire or
to any of the compensation due Empire under this
Agreement. At the end of the term of this agreement, or
at such earlier time as the Board determines that SYN no
longer needs the insurance coverage provided for in this
Section, Lindsey will have the option to purchase
ownership of such insurance policies from SYN for a price
equal to any cash surrender value of the insurance.
ARTICLE 4: COMPENSATION OF EMPIRE
SECTION 4.01 COMPENSATION ENTITLEMENT. As
compensation in full for Empire's services under this
Agreement, SYN shall pay Empire a Fixed Fee (as defined
in Section 4.02 hereof) per annum and a Management Fee (as
defined in Section 4.03 hereof).
SECTION 4.02 FIXED FEE. The Fixed Fee (the amount
of which for each fiscal year of SYN, or part thereof,
will be included in the Applicable Budget for such
period), is intended to cover Empire's operating overhead
in performing its services under this Agreement. The
Fixed Fee shall be paid by SYN to Empire in equal monthly
installments in advance, upon commencement of Empire's
services and thereafter on the first day of each month,
and shall be at the initial annual rate of $3,250,000 for
the period commencing with the commencement of Empire's
services under this Agreement and ending June 30, 1996,
and for each 12-month period or portion thereof
thereafter until the end of the term of this agreement
the annual rate of the Fixed Fee shall increase by the
percentage increase in the Consumer Price Index. All
Items For all Urban Consumers, U.S. City Average (1982-84
= 100), as of the start of such period as determined by
the index number for the month most recently published by
the U.S. Department of Labor or any successor
governmental agency handling such publication, as of the
start of the period, compared to 151.4 (which is such
index figure for the month of March, 1995), but no
reduction in the annual rates of the Fixed Fee shall be
made if a decrease in such Consumer Price Index figure
shall occur. In addition to the foregoing adjustments in
the Fixed Fee related to changes in such Consumer Price
Index, the Fixed Fee shall be adjusted in an amount
approved by the Board to reflect Empire's increased fixed
operating overhead reasonably attributable to increases
in SYN's business resulting from acquisitions and start-
ups of business locations after the Synergy Acquisition
is completed. In the event of changes in the basis for
such Consumer Price index, or such index is discontinued,
the parties shall amend this Section 4.02 to provide as
closely as possible for the same adjustment mechanism,
using the changed basis or a different published index,
as appropriate.
SECTION 4.03 MANAGEMENT FEE. The Management Fee,
an estimate of which for each fiscal year shall be
included in the applicable Budget for such period, shall
be at the annual rate of $500,000 per annum payable by
SYN to Empire in equal monthly installments in advance
upon commencement of Empire's services and thereafter on
the first day of each month, plus a sum (the "Additional
Amount") equal to 10% of the amount by which the EBITDA
for SYN and its subsidiaries, on a consolidated basis,
exceeds the amount shown below for each period indicated,
with the Additional Amount for each such period to be
paid by SYN to Empire within 90 days after the end of
such period or at such earlier time as the final
calculation of the Additional Amount for such period is
completed:
$17,500,000 for the period ending June 30, 1996;
$18,000,000 for the 12 months ending June 30, 1997;
$18,300,000 for the 12 months ending June 30, 1998;
$18,600,000 for the 12 months ending June 30, 1999; and
$18,900,000 for the 12 months ending June 30, 2000;
For purposes of this Agreement, "EBITDA" means earnings
before interest, taxes, depreciation and amortization for
a specified period for the specified corporation, or the
specified group of corporations on a consolidated basis,
or the specified business locations, determined from
financial statements for such corporation or corporations
or business locations prepared on the basis of generally
accepted accounting principles, consistently applied.
ARTICLE 5: COMPETITION BETWEEN EMPIRE AND SYN
SECTION 5.01 OVERLAPPING MARKET AREAS. As promptly
as is reasonably possible, Empire and SYN shall use their
best efforts to exchange those outlets of Empire and SYN
that are designated in Exhibit C attached to this
agreement as having overlapping, competing market areas,
by having some of the SYN outlets listed on such Exhibit
C transferred to Empire and some of the Empire outlets
listed on such Exhibit C transferred to SYN, such that
upon completion of these transfers, the SYN outlets
transferred to Empire will have EBITDA (as defined in
Section 4.03 herein) and assets equivalent (with
immaterial exceptions) in value to the Empire outlets
transferred to SYN, and the overlapping, competing nature
of the market areas shown on Exhibit C will be eliminated
by such transfers. Any shortfall of EBITDA or asset
value to either party from such transfers shall be
compensated by either a transfer of assets or a cash
payment, the amount of which is to be negotiated between
NGC and SYN, as one party, and Empire, as the other
party.
SECTION 5.02 NON-COMPETITION; ACQUISITIONS.
(a) While this Agreement is in effect and for
a period of one year thereafter, Empire and SYN will
not solicit customers and employees from each other.
(b) Until the end of the term of this
Agreement and for a period of two years thereafter,
Empire and SYN shall not compete in each others area
of interest for new customers within such area.
Regarding individual acquisitions of retail propane
businesses greater than $7,500,000 which any party
hereto desires to make before the end of the term of
this Agreement, such acquisitions shall be owned
jointly by Empire and SYN in relation to the capital
provided for such acquisition or such other
arrangements as can be negotiated by such parties on
a case by case basis, but acquisitions less than
$7,500,000 shall be pursued first by the individual
entity with operations closest to the acquired
property, or if not successfully pursued by such
party, then jointly by Empire and SYN together,
based on capital provided, and if not successfully
pursued by those two parties, then by whichever
(Empire of SYN) was not such first party.
ARTICLE 6: ACCOUNTING SYSTEM; ACCOUNTANTS
SECTION 6.01 ACCOUNTING SYSTEM. At all times until
the end of term of this Agreement, Empire will:
(a) Cause SYN and its subsidiaries to
implement and maintain a system of accounting for
the assets, liabilities, operations and cash flows
of SYN and its subsidiaries, and internal controls
over accounting and financial matters for SYN and
its subsidiaries, similar to the system and controls
maintained by Empire for itself, or, if requested by
the Board, as the Board shall reasonably require;
and in connection with the foregoing, Empire shall
cause SYN to provide NGC with such financial
statement and reports with respect to assets,
liabilities, operations and developments affecting
the business or assets of SYN and its subsidiaries,
as NGC may require (taking into account the
accounting and reporting requirements of NGC's
parent corporation. Northwestern Public Service
Company); and
(b) Cause SYN to engage a so-called "Big six"
firm of independent public accountants (or whatever,
at the time is the equivalent of the present Big
six) approved by the Board to make quarterly reviews
and annual audits of SYN and its subsidiaries; but
to the most efficient extent possible, Empire shall
cause SYN to engage Baird, Kurtz & Dobson ("BK&D")
to perform detailed compliance work to assist the
designated firm of independent accountants in
completing the quarterly reviews and annual audits.
SECTION 6.02 AUDIT OR REVIEW. At all times until
the end of the term of this Agreement, Empire will allow
the Board and its authorized representatives, upon at
least seven-days' prior notice to, and in coordination
with, the President and Chief Executive Officer of SYN,
to audit or review the books of account and records of
all kinds kept for SYN, inspect SYN's properties, consult
with SYN's personnel and with Empire's personnel involved
in Empire's performance of services under this Agreement,
and generally to observe and monitor the operation,
management and accounting for SYN's business and assets;
provided, however, that such review and/or audit shall
not last longer than five business days unless Empire is
in default under this Agreement. Such reviews shall be
restricted to no more than once a month at the home
office of SYN, as maintained by Empire, through June 30,
1996 and quarterly thereafter, and unrestricted at all of
SYN's retail locations. All reports resulting from these
audits or reviews shall be promptly furnished to the
Board.
ARTICLE 7: INSURANCE FOR SYN
In addition to the key man insurance which SYN
may maintain pursuant to Section 3.02 herein, at all times
while this Agreement is in effect insurance covering
liability exposures of SYN and its Board, with types and
amounts of coverage as shall be approved by the Board,
shall be obtained and maintained for SYN and its
subsidiaries (at SYN's expense, and at no cost to Empire)
by Empire as part of the Management Services. Empire
shall be named as a co-insured under such coverages. The
cost of such insurance shall be included in each
Applicable Budget.
ARTICLE 8: ATTENDANCE OF EMPIRE'S BOARD MEETINGS
At all times while this Agreement is in effect,
NGC will designate a representative who may, as invited,
be allowed to attend quarterly meetings of Empire's Board
of Directors and to receive copies of all information
supplied by Empire to the members of its Board of
Directors for such meetings.
ARTICLE 9: SYN BOARD APPROVAL REQUIRED
The assets and business of SYN and its
subsidiaries shall be managed as provided herein by
Empire while this Agreement remains in effect, subject to
the overall direction and supervision by the Board.
However, Empire shall not take for SYN (such term at all
times in this Article 9 includes SYN's subsidiaries), or
cause SYN to take, any of the following actions without
having obtained the prior approval of the Board:
(a) Sell, lease, transfer or otherwise dispose
of, or enter into any agreement or arrangement for
any sale, lease, transfer or other disposition of
assets of SYN, except for (i) a sale, lease,
transfer or other disposition specifically provided
for in the Applicable Budget, or (ii) the sale of
services to customers and the sale or lease of
products in the ordinary course of business of SYN;
(b) Purchase any goods or services from, or
sell any goods or services to, or enter into or
amend any agreement or other transaction with,
Empire or any affiliate of Empire that is not on an
arm's-length basis;
(c) Cause SYN to incur any indebtedness for
borrowed money (including without limitation, any
capitalized lease obligations) or to enter into an
agreement for such borrowing (or leasing) with the
exception of seller financing of the purchase of
particular assets;
(d) Mortgage or otherwise grant a lien upon or
security interest in any assets of SYN except liens
upon acquired assets to secure seller financing for
the acquisition of such assets;
(e) Cause SYN to become a surety or guarantor
of, or an accommodation party to, or otherwise
become or be contingently liable for any
indebtedness or obligations of any other party,
other than as a result of endorsing to negotiate
payment of instruments received from customers in
payment for goods and services in the ordinary
course of business in amounts less than $50,000;
(f) Cause SYN to enter into any joint venture
or similar relationship or acquire any stock, debt
obligations or other securities of, or loan to or
make any investment in or capital contribution to
any other party which is not a wholly-owned
subsidiary of SYN;
(g) Institute, defend, or settle any legal
proceeding on behalf of SYN, except legal
proceedings against SYN shall be defended and if the
matter is partially or wholly covered by insurance,
it may be settled if the settlement payment to be
made by SYN is an amount not exceeding the
deductible under such insurance coverage for such
matter and all other matters not partially or wholly
covered by insurance may be settled if the
settlement payment to be made by SYN is an amount
not exceeding $50,000 per matter;
(h) Enter into any new contract for the
leasing, as lessee, of any real or personal
property, other than operating leases entered into
in the ordinary course of business involving a term
of not more than one year total or rental of not
more than $0,000, and other than retail location
operating leases;
(i) File or consent to any petition in
bankruptcy, reorganization, liquidation or similar
proceeding with respect to SYN, or seek, consent to
or acquiesce in the appointment of a trustee,
receiver or liquidator of SYN, or of all or any part
of the assets of SYN, or make an assignment for the
benefit of SYN's creditors;
(j) Confess a judgment against SYN greater
than $50,000;
(k) Amend, modify, supplement or waive any
provision of any contract, the making of which was
approved or required to be approved by the Board;
(l) Make any employment, severance, consulting
or similar agreement, including any agreement with a
labor union, or amend the same, for SYN with any
other party involving payments by SYN greater than
$50,000, or adopt any employee benefit plan for
employees of SYN;
(m) Open or close a primary office, plant or
other business location for SYN, or make an
agreement or commitment of any kind to do so unless
it results from the merger or consolidation with
another SYN plant, office or other business
location; or
(n) Take any action in contravention of this
Agreement.
ARTICLE 10: DIRECTORS AND OFFICERS
SECTION 10.01 DIRECTORS AND OFFICERS OF SYN.
During the term of this Agreement, the provisions of
Section 5.02 of the Stock Agreement (which are hereby
incorporated herein by this reference) shall be carried
out by Empire and NGC even if the Stock Agreement ceases
to be in effect for any reason.
SECTION 10.02 DIRECTORS AND OFFICERS OF
SUBSIDIARIES. The directors and officers of subsidiaries
of SYN shall be designated by Empire to enable Empire to
achieve an efficient management and administration of the
business and affairs of the subsidiaries.
ARTICLE 11: TERM; TERMINATION
SECTION 11.01 TERM OF THIS AGREEMENT; TERMINATION.
The term of this Agreement shall be in effect until it
expires on June 30, 2000, or at the end of any fiscal
year thereafter if preceded by at least six-months'
written notice by SYN or one-year's written notice by
Empire of its desire to terminate as of such date, unless
sooner terminated at the election of the Board, and upon
giving notice to Empire of such election, on any earlier
date in the event of any of the following:
(a) Upon default by Empire under this
Agreement which remains uncured after 30 days
written notice of such default has been given to
Empire by SYN or NGC;
(b) Upon any change in ownership of Empire
which results in Lindsey having less than voting
control (as a stockholder) of Empire;
(c) Upon the filing or consent to any petition
in bankruptcy, reorganization, liquidation or
similar proceeding with respect to Empire, or the
appointment of a trustee, receiver or liquidator for
Empire for all or a substantial part of its assets,
or the making of an assignment by Empire for the
benefit of its creditors;
(d) Upon the failure of SYN and its
subsidiaries to achieve the following cumulative
(consolidated) EBITDA results for the periods
beginning with the Synergy Acquisition and ending on
the dates indicated below, as follows:
(i) for the period ended June 30, 1996,
cumulative EBITDA of at least $14
million;
(ii) for the period ended June 30, 1997,
cumulative EBITDA of at least $29
million;
(iii) for the period ended June 30, 1998,
cumulative EBITDA of at least $45
million;
(iv) for the period ended June 30, 1999,
cumulative EBITDA of at least $62
million;
(v) for the period ended June 30, 2000,
cumulative EBITDA of at least $80
million; and
(vi) for periods (if any) subsequent to
June 30, 2000, cumulative EBITDA at
the end of each fiscal year of SYN
shall be at least $20,000,000
higher than at the end of the
previous fiscal year;
(e) If SYN at any time is in default with
respect to more than $1,000,000 of its borrowings;
(f) If Empire at any time is in default with
respect to its outstanding publicly-held bonds;
(g) By mutual agreement of the parties or when
required by final court order or final award of
arbitrators; or
(h) If the stock of SYN, or stock entitling
the holder or holders thereof to cast a majority of
the votes in the general election of directors of
SYN, or substantially all of the assets of SYN, is
sold, directly or by merger or consolidation.
The term of this Agreement also may be terminated at the
election of Empire and upon giving notice to NGC and SYN
of such election in the event of any of the following:
(i) Upon default by SYN resulting from non-
payment of the Fixed Fee or the Management Fee to
Empire which remains uncured after 30 days written
notice of such default has been given by Empire to
SYN or NGC; or
(ii) If the stock of SYN, or stock entitling
the holder or holders thereof to cast a majority of
the votes in the general election of directors of
SYN, or substantially all of the assets of SYN is
sold, directly or by merger or consolidation; or
(iii) If any of the terms of this Agreement
are changed without the consent of Empire.
SECTION 11.02 TRANSITION UPON TERMINATION.
(i) Upon expiration or earlier termination of this
Agreement, the parties hereto will cooperate to the
fullest extent possible to facilitate the creation of a
staff of management personnel, and the establishment of
facilities owned or leased by SYN or otherwise available
for use by SYN on terms acceptable to SYN, to enable SYN
to plan and manage its business operations and assets
without the services that would have been provided by
Empire under this agreement had this agreement remained
in effect; and until that is accomplished (and the
parties hereto shall make a good faith effort to
accomplish it promptly), SYN shall have the use of the
personnel and facilities of Empire that had been devoted
in whole or in part to such planning and management at a
cost not to exceed the amount most recently budgeted
therefor in the last applicable Budget, or at Empire's
cost in the absence of such budgeted amount.
(j) Notwithstanding the foregoing, in the event
this Agreement is terminated by Empire, SYN shall have up
to 18 months (including the 12-months' notice period) to
plan and execute an operational and transition plan for
achieving what is provided for in preceding subsection
(a).
SECTION 11.03 PUTS AND CALLS.
(k) In the event this Agreement is terminated by
Empire, SYN shall have a call right to purchase Empire's
shares of common stock of SYN at a price equal to 100% of
fair market value, determined by appraisal, and Empire
shall have a put right to sell to SYN Empire's shares of
common stock of SYN at a price equal to 90% of fair
market value, determined by appraisal, provided that, in
case of a put by Empire, SYN has adequate liquidity, as
reasonably determined by its Board, to make such
purchase.
(l) In the event this Agreement is terminated by
SYN, SYN shall have a call right to purchase Empire's
shares of common stock of SYN at a price equal to 110% of
fair market value, determined by appraisal, and Empire
shall have a put right to sell to SYN Empire's shares of
common stock of SYN at a price equal to 100% of fair
market value, determined by appraisal, provided that in
the case of a put by Empire, SYN has adequate liquidity,
as reasonably determined by its Board, to ,make such
purchase.
(m) For these purposes, fair market value of the
shares of common stock of SYN to be sold and purchased
shall be determined by an appraiser or investment bunker
selected as provided in Section 1.04(a)(ii) of the Stock
Agreement, with the appraisal made in accordance with
such Section.
ARTICLE 12: RIGHT OF FIRST REFUSAL
So long as this Agreement is in effect, Empire will
require Lindsey not to sell or otherwise dispose of the
shares of stock of Empire which he owns (other than to an
affiliated entity or related party or to Empire
management personnel, provided that Lindsey retains
voting control of Empire), and Empire will not sell or
otherwise dispose of all or substantially all of its
business and assets, whether such transactions are to be
done directly or indirectly by means of a merger or
consolidation of Empire with the acquiring entity,
without first offering the same for sale to NGC, on the
same terms as are offered by the other party (with full
disclosure of such terms to NGC), and allowing not less
than 30 days after its receipt of the offer for NGC to
accept the offer, and if such offer is accepted by NGC,
NGC shall have 90 days in which to complete the purchase
on such terms.
ARTICLE 13: MISCELLANEOUS
SECTION 13.01 NOTES. All notices and other
communications hereunder shall be in writing and shall be
deemed to have been give (a) when delivered in person,
(b) one business day after deposit with a nationally
recognized overnight courier service, (c) two business
days after being deposited in the United States mail,
postage prepaid, first class, registered or certified
mail, or (d) the business day on which it is sent and
received by facsimile, as follows:
If to SYN, to: SYN Inc.
c/o Northwestern Growth Corporation
33 Third Street , S.E.
Huron, SD 57350
Fax No. (605) 353-8286
Attn: Richard R. Hyland, President
and Chief Operating Officer
and to SYN Inc.
c/o Empire Gas Corporation
1700 South Jefferson Street
Lebanon, MO 65536
Fax No. (417) 532-8529
Attn: Paul S. Lindsey, Jr., Chief
Executive Officer
If to NGC: Northwestern Growth Corporation
33 Third Street, S.E.
Huron, SD 57350
Fax No. (605) 353-8286
Attn: Richard R. Hylland,
President
If to Empire: Empire Gas Corporation
PO Box 303
1700 South Jefferson
Lebanon, MO 65536
Fax No. (417) 532-8529
Attn: Paul S. Lindsey, Jr.,
President
or to such other person or address as any party hereto
shall specify in notice in writing given to the other
parties hereto.
SECTION 13.02 ASSIGNMENT RESTRICTED; SUCCESSORS AND
ASSIGNS. No party hereto may assign its interest in this
Agreement without first obtaining the written consent of
the other parties hereto, except that this Agreement may
be assigned by SYN, without obtaining such consents, to
(and in connection with the closing of the acquisition
by) an acquirer of substantially all of the business and
assets of SYN and its subsidiaries, provided that written
notice of such assignment is given to the other parties
hereto, and except further that this Agreement may be
assigned by NGC (in connection with the assignment of
NGC's shares of common stock of SYN) to NWPS, or any
wholly-owned subsidiary of NWPS, without obtaining such
consents, provided written notice of such assignment is
given to the other parties hereto.
SECTION 13.03 SEVERABILITY. Should any provision
of this Agreement for any reason be declared invalid or
unenforceable, such decision shall not affect the
validity or enforceability of any of the other provisions
of this Agreement, which remaining provisions shall
remain in full force and effect and the application of
such invalid or unenforceable provision to persons or
circumstances other than those as to which it is held
invalid or unenforceable shall be valid and be enforced
to the fullest extent permitted by law.
SECTION 13.04 INTERPRETATION. The article and
section headings contained in this Agreement are solely
for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect
the meaning or interpretation of this Agreement.
SECTION 13.05 ARBITRATION. Any dispute arising
under this Agreement shall be resolved by arbitration.
Each of the parties hereto agrees (a) that each such
arbitration shall be initiated and conducted in
accordance with the rules and procedures of the American
Arbitration Association ("AAA"), (b) to submit all such
disputes to the office of the AAA in charge of
arbitrations conducted in the metropolitan area of the
City of Minneapolis, Minnesota, and (c) to have each such
arbitration proceeding conducted in the metropolitan area
of the City of Minneapolis, Minnesota, and (d) to be
subject to the jurisdiction of the arbitrators in the
City of Minneapolis, Minnesota upon notice given in
accordance with the provisions of this Agreement that a
dispute has been submitted to such office of the AAA.
SECTION 13.06 GOVERNING LAW. This Agreement shall
be governed by the laws of the State of Delaware
(regardless of the laws, that might otherwise govern
under applicable principles of conflicts of law) as to
all matters, including but not limited to matters of
validity, construction, effect, performance and remedies.
SECTION 13.07 COUNTERPARTS. This Agreement may be
executed in counterparts, each of which shall be deemed
an original, but all of which collectively shall
constitute one and the same agreement.
IN WITNESS HEREOF, the parties hereto have
executed this Agreement as of the date first above
written.
Empire Gas Corporation SYN Inc.
By: /s/ Paul S. Lindsey, Jr. By:/s/ Paul S. Lindsey, Jr.
_______________________ _______________________
Its President Title:
Northwestern Growth
Corporation
By: /s/ Richard R. Hylland
________________________
Its President