U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
For the fiscal year ended June 30, 1997
OR
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the transition period from to
----------------- ------------------------------
Commission file number: 0-9358
TYREX OIL COMPANY
~~(Exact~Name~of~Registrant~as~specified~in~its~charter)~
Wyoming 83-0245581
~(State~or~other~jurisdiction (I.R.S.~Employer
~o~f~incorporation~or~organization) Identification~No.)~
~
~Suite 101, 777 North Overland Trail
P.O. Box 2459
Casper, Wyoming 82601~
~~(Address~of~principal~executive~offices) ~(Zip~Code)~
~Registrant's~telephone~number,~including~area~code:~(307)234-4260
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common stock, $.01 par value per share
~(Title~of~class)~
Indicate by check mark whether the Registrant (l) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act during the
preceding 12 months (or for such shorter period that the Registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days.
Yes X No
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
At September 30, 1997, 39,293,424 shares of the Registrant's $.01 par value
common stock were outstanding. The aggregate market value of the Common Stock
held by non-affiliates (10,126,691 shares) of the Registrant as of September 30,
1997 was approximately $1,722,000. (Based upon multiplying the mean ($.17) of
the closing bid and asked prices of the common stock of the Registrant on the
NASDAQ system as of September 30, 1997 times the number of shares held by
nonaffiliates.)
Documents Incorporated by Reference: None
This report consists of 94 sequentially numbered pages; the Exhibit Index
appears on page 15 .
1
PART I
ITEM 1. BUSINESS.
~Business~Development~
During the fiscal year ended June 30, 1997, Tyrex Oil Company (Tyrex) merged
with Kimbrough Computer Sales, Inc. dba 3Si, Inc. (3Si) and sold all of its oil
and gas properties in accordance with Tyrex's planned strategy to divest itself
of its oil and gas operations and enter into a new business opportunity. Tyrex
acquired 3Si effective May 28, 1997 and completed the sale of its oil and gas
properties on May 30, 1997. As such, the primary financial statements included
in this Form 10-K are those of 3Si. (There are supplemental financial
statements for the operations of Tyrex up to and through May 28, 1997, the date
of the acquisition, included elsewhere herein.)
On May 28, 1997 Tyrex acquired 100% of the common stock of 3Si in a reverse
triangular merger accounted for as a purchase. Under the terms of the merger,
3Si is a wholly owned subsidiary of Tyrex. The merger is accounted for
financial statement purposes as a purchase of Tyrex by 3Si, since the merger
resulted in 72% of the now outstanding common stock of Tyrex being issued to the
3Si stockholders. The financial statements for the period ended June 30, 1997
contain the results of operations of 3Si for the six months ended June 30, 1997,
and the results of operations for Tyrex from the date of acquisition (May 28,
1997) through June 30, 1997. The financial statements for the years ended
December 31, 1996 and 1995 include the results of operations for 3Si only.
3SI, INC. OVERVIEW
3Si (Solution, System and Service Integration) has provided comprehensive
computer hardware and software solutions for over 17 years to clients throughout
the continent. Founded in 1979, as Kimbrough Computer Sales, Inc., 3Si offers a
wide array of systems integration services, including Internet security and
business needs assessments, hardware sales, maintenance and support, and
technical consulting, training and education. Larry Valdez, Fred Slack and
Frank Backes, all formerly with Digital Equipment Company, bought 3Si from its
original owners in August, 1993. Since 1993, 3Si has grown from sales of
approximately $9 million and 27 employees to sales of $19 million and 125
employees in 1996.
3Si (the Company) is headquartered in Denver, Colorado and has sales offices in
Colorado Springs, Colorado; Albuquerque, New Mexico; St. Louis, Missouri, and,
Raleigh, North Carolina. The Raleigh office directly supports 3Si's technical
consulting contract with the U.S. Postal Service while the Albuquerque office
directly supports 3Si's Equipment and Services Schedule Contract (ESS Contract)
with the State of New Mexico.
Within its systems integrator framework, 3Si in July 1996 introduced a group of
professionals who focus entirely on providing Internet security assessments and
solutions to its customers. This group, lead by Frank Backes who has extensive
experience in providing network security to the U.S. Government and is a
recognized expert in the field of Internet security, currently performs Internet
security assessments for 3Si's customers. The assessment process involves
determining the client's computer and connectivity environment, defining the
client's objectives for security in accessing the Internet, and finally,
developing the proper hardware/software/configuration solution to solve the
client's needs. In communicating the solution to the client, the assessment
uses easy to understand pictorial depictions of the client's existing and needed
environment. The Company believes its assessment methodology is copyrightable
and plans to file for copyright protection in the near future. With the startup
of the Internet security business, the Company has entered into various
strategic agreements with companies such as Netcom, J.D. Edwards, JDL, and IBM
to directly provide Internet security assessment methodology to those companies
and their customers.
2
~The~Microcomputer~Products~Industry~
The microcomputer products industry is one characterized by significant change.
Rapid advances in computer technology have enabled manufacturers to offer
substantially improved microcomputer products, with new and easier to use
software applications. As a result of the improved technology and the
improvements made in ease of use of the applications of this technology, the
number of consumer and small business users of microcomputer products has
increased substantially in recent years. Another significant factor in the
increased usage of these products is the reduction in price of microcomputer
hardware.
These trends have also resulted in rapid growth in the microcomputer reseller
industry. In addition to sales by traditional microcomputer retailers,
microcomputers and related products are now sold by mass merchandisers, hard
good specialty retailers, national mail order houses, general office equipment
retailers and superstore-type microcomputer retailers. The decline in prices
for microcomputer hardware products offered to the end user and the increased
competition of the microcomputer reseller industry has created extreme price
pressures for microcomputer resellers.
As a result, the Company views the microcomputer reseller industry as evolving
and changing rapidly, with ongoing consolidation and realignment. The Company
believes that this presents opportunities, as well as challenges. The Company
believes that the market for microcomputer products and services will continue
to grow. The Company's belief in this trend is based upon its experience with
its own customers as well as general industry studies.
~Competition~
The Company competes with numerous other companies offering many of the same
services. Competition is based upon factors such as the existence of personal
relationships with clients, price, service and reputation. Some of the
Company's competitors are larger, have greater resources and are more
established than the Company, especially as systems integrators and computer
resellers. The Company is not able at this time to accurately evaluate its
competitive position in the industry. There is no assurance that the Company
will be able to compete successfully in the future.
~USPS~Contract~
In April 1996, 3Si entered into a sub-contract agreement to provide information
systems support to the U.S. Postal Service. Revenues for the six months ended
June 30, 1997 were approximately $2.0 million which constituted greater than 10%
of the total revenues of the Company for the period. The Company estimates
continuing revenue from this sub-contract agreement to be approximately $3
million per year for the next three years ending March 31, 2001, (which includes
anticipated renewals). While the Company does not anticipate early termination
of the sub-contract, or not obtaining the annual renewals when due pursuant to
the sub-contract, loss of the contract would have a materially adverse impact on
the Company.
~SEASONALITY~
The Company experiences a seasonal peak during the fourth calendar quarter
during which over 30% of 3Si's annual sales typically will occur.
~
~PERSONNEL~
At June 30, 1997, the Company had 128 employees.
3
ITEM 2. DESCRIPTION OF PROPERTIES.
3Si currently rents its headquarters in Englewood, Colorado in a stand-alone
office building of approximately 16,000 sq. ft. pursuant to a 6-year operating
lease expiring in 2001. 3si also maintains sales offices in Colorado Springs,
Colorado (leased, month-to-month), Albuquerque, New Mexico (leased, expiring
November 1998), St. Louis (maintained by an independent sales representative)
and Raleigh, North Carolina (subleased month-to-month). the company believes
its has adequate facilities for the present level of business and does not
anticipate significant acquisitions of property, or facilities during the
remainder of 1997.
ITEM 3. LEGAL PROCEEDINGS.
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
None.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
~Market~Information~
The following table shows the high and low bid prices of the Common Stock of
Tyrex for each calendar quarter for the periods indicated. Such quotations
represent prices between dealers and do not include retail markup, markdown or
commissions; hence, they may not represent actual transactions.
Low High
--- ----
Fiscal 1996
September 30, 1995 $.09 $.25
December 31, 1995 .09 .19
March 31, 1996 .13 .22
June 30, 1996 .16 .25
Fiscal 1997
September 30, 1996 $.16 $.25
December 31, 1996 .16 .28
March 31, 1997 .19 .28
June 30, 1997 .19 .31
Tyrex was advised on June 12, 1997 that the NASDAQ Stock Market would delist its
shares from the SmallCap Market. The Company has appealed such delisting and is
awaiting a decision from a NASDAQ review panel. If the decision is affirmed, it
may not be possible to obtain a new listing since the Company does not meet
certain NASDAQ qualification requirements as to net assets and share price.
Therefore, the Company's common stock may be quoted on the electronic bulletin
board, symbol "TYRX".
At September 30, 1997, there were approximately 1,900 holders of record of
Tyrex's common stock.
~Dividends~
No cash dividends have been paid on Tyrex's common stock and it does not
anticipate paying any cash dividends on common stock in the foreseeable future.
However, Tyrex intends to conduct a self-tender offer for up to 6,000,000 shares
of its common stock (exclusive of shares issued in the 3Si acquisition) at a
price of $0.30 per share. The offer will be made pursuant to a Statement to be
filed under Section 13e of the Securities Exchange Act of 1934 and Rule 13e-4
adopted thereunder. It is anticipated that the offer will commence in October
1997.
4
ITEM 6.SELECTED FINANCIAL DATA
On May 28, 1997 Tyrex acquired 100% of the common stock of 3Si in a reverse
triangular merger accounted for as a purchase. Under the terms of the merger,
3Si is a wholly owned subsidiary of Tyrex. The merger is accounted for
financial statement purposes as a purchase of Tyrex by 3Si, since the merger
resulted in 72% of the now outstanding common stock of Tyrex being issued to the
3Si stockholders. The financial information for the period ended June 30, 1997
contains the results of operations of 3Si for the six months ended June 30,
1997, and the results of operations for Tyrex from the date of acquisition (May
28, 1997) through June 30, 1997. The financial information for the years prior
to January 1, 1997 include the results of operations for 3Si only.
Six Months Year Ended Year Ended Year Ended Year Ended
Ended June December December December December
30, 1997 31, 1996 31, 1995 31, 1994 31, 1993
(Unaudited)
Net sales $9,976,536$19,007,245$21,774,221$17,503,876 $9,574,211
Income(loss) from operations (190,063) 3,590 (109,477) 349,322 35,537
Net income (loss) from
continuing operations (275,198) (195,315) (177,977) 366,846 52,947
Discontinued operations 200,793 - - - -
Net income (loss) (74,405) (195,315) (177,977) 366,846 52,947
Per Common Share:
From continuing operations (.04) (651) (593) 1,223 176
From discontinued operations .03 - - - -
Net income (loss) per common
share (.01) (651) (593) 1,223 176
At year end:
Total assets 7,263,823 5,349,586 5,221,723 3,123,711 3,084,682
Long-term obligations 64,502 76,060 99,496 - -
Working capital(deficit) 1,767,402 (168,223) 166,922 721,944 550,078
Stockholders' equity 2,708,572 142,966 433,893 826,425 596,904
ITEM 7.MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
~Financial~Condition~
With the merger of Tyrex and 3Si, the Company believes it has the financial
resources to meet the Company's financial needs for its operations during the
next 12 months. As of June 30, 1997, the Company had working capital of
approximately $1,767,000.
As of September 30, 1997, the Company had replaced its note payable with a bank
with an accounts receivable line of credit facility with another financial
institution. The new revolving line of credit is at the prime rate of interest
and permits the Company to borrow up to $2 million based on 85% of the Company's
eligible accounts receivable balance computed under the terms of the agreement.
The line is secured by substantially all of the assets of the Company.
The Company also anticipates undertaking either a private or public offering to
raise new equity capital in the near future. Although no such arrangement
exists currently, any issuance of additional securities may have a dilutive
effect to the existing shareholders of the Company. There is also no assurance
that the Company will be able to raise additional equity capital that it may
require to fully implement its business plan.
5
~RESULTS~OF~OPERATIONS~
~SIX~MONTHS~ENDED~JUNE~30,~1997~COMPARED~TO~SIX~MONTHS~ENDED~JUNE~30,~1996~
~OVERVIEW~
The statements of operations and cash flows for the six months ended June 30,
1997, include the results of operations and cash flows for 3Si for the six
months ended June 30, 1997 and the 33 days from May 28, 1997 (the date of the
acquisition) to June 30, 1997 for Tyrex. Due to the nature of Tyrex's
operations during the 33 days ended June 30, 1997 (i.e. completing the sales of
its oil and gas properties and discontinuing its oil and gas operations) the
results of Tyrex's operations are disclosed as "discontinued operations".
Tyrex realized a gain on its final disposition of oil and gas properties of
$536,700 in the 33 day period ended June 30, 1997. Included in Tyrex's gain from
discontinued operations for the 33 day period ended June 30, 1997 were costs
attributable to the acquisition of approximately $190,000 and severance costs
relating to Tyrex's remaining employees of approximately $117,000 including
accrued payroll taxes. As of June 30, 1997, Tyrex had three full-time
employees. No discontinued operations are included in the December 31, 1996 and
1995 financial statements which reflect only the operations of 3Si.
3Si realized a net loss from continuing operations of $275,198 during the six
months ended June 30, 1997. This loss is attributable primarily to 3Si's
continued investment in its Internet security startup business and reduced
hardware sales. The Internet security division lost $150,180 during the first
six months of 1997, attributable to its startup nature whereby revenues
generated by the Internet security division did not yet cover expenses.
~Comparative~Analysis~
Sales were approximately $9,977,000 during the six months ended June 30, 1997.
Total sales were up from the same period in the previous year by approximately
$1,255,000 or 14.4%. This change is primarily the result of the United States
Postal Service ("USPS") sub-contract which did not begin until May 1996; and, a
decline in hardware sales between periods. The USPS sub-contract sales for the
first six months of 1997 and 1996 were approximately $1,970,000 and $367,000,
respectively, accounting for an increase of approximately $1,603,000. The
decline in hardware sales, which was approximately $348,000 was directly
attributable to the three 3Si co-owners' attention in merger and financing
activities. The co-owners' involvement was diverted from usual sales activities
causing the lower hardware sales during the first six months of 1997 versus the
first six months of 1996.
The Company's gross margin changed as a percentage of sales from 25.7% in 1996
to 31.9% in 1997. These changes primarily result from the addition of the USPS
contract and the Internet security business which create higher, consulting
based, margins (i.e. the compensation related to the delivery of the consulting
sales is included in selling and administrative expenses versus cost of goods
sold). Gross margin increased approximately $1,105,000 due to the addition of
the USPS sub-contract and the Internet security business slightly offset by
lower hardware sales as discussed above.
Selling and administrative expenses increased approximately $1,415,000, or 72.3%
due primarily to the addition of the labor costs associated with the USPS sub-
contract. During the first six months of 1997, the Company incurred additional
labor costs of approximately $1,284,000 relative to the USPS sub-contract.
Included in selling and administrative expenses for the six months ended June
30, 1997 are also approximately $251,000 of expenses related to the Internet
security business which had not existed until July 1996. These increases in
costs were slightly offset by savings in other expenses due to cost containment
and expense reduction in other areas.
At June 30, 1997, the Company had 128 employees, including 57 servicing the USPS
sub-contract in Raleigh, NC and 3 in Wyoming versus having had 84 in total at
June 30, 1996 including 29 servicing the USPS sub-contract.
6
~YEAR~ENDED~DECEMBER~31,~1996~VERSUS~DECEMBER~31,~1995~
~Overview~
3Si realized a net loss of $195,315 for the year ended December 31, 1996 versus
a net loss of $177,977 for the year ended December 31, 1995. The loss incurred
in 1996 is attributable primarily due to the Company's investment in its
Internet security startup business which began in earnest in July 1996. The
Internet security division lost $174,009 during the second half of 1996,
attributable to its startup nature.
~Comparative~Analysis~
Sales decreased approximately $2,777,000, or 12.7% from the previous year. This
change is primarily the result of the USPS sub-contract which did not begin
until May 1996; and, a decline in hardware sales between periods. The USPS sub-
contract sales for the year were approximately $1,757,000 and hardware sales
declined approximately $4,534,000. Hardware sales declined as the Company
focused on higher margin consulting sales like the USPS sub-contract and higher
margin hardware sales.
3Si's gross margin changed as a percentage of sales from 17.3% in 1995 to 25.7%
in 1996. These changes primarily result due to the addition of the USPS
contract and higher margin hardware sales. The USPS sub-contract creates
higher, consulting based, margins (i.e. the compensation related to the delivery
of the consulting sales is included in selling and administrative expenses
versus cost of goods sold). Gross margin on hardware sales increased from 14.6%
in 1995 to 15.4% in 1996 as the Company focused on proposing on higher margin
sales as part of its strategy to return to long-term profitability.
Selling and administrative expenses increased approximately $986,000, or 25.4%
due primarily to the addition of the labor costs associated with the USPS
contract. During 1996, the Company incurred additional labor costs of
approximately $1,176,000 relative to the USPS sub-contract which is slightly
offset by savings in other expenses due to cost containment and reduction in
other areas. Included in selling and administrative expenses are also
approximately $204,000 of expenses relative to the Internet security business.
At December 31, 1996, the Company had 102 employees, including 43 servicing the
USPS sub-contract in Raleigh, NC versus having had 62 at December 31, 1995.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK.
Not applicable.
ITEM 8. FINANCIAL STATEMENTS OR SUPPLEMENTAL DATA.
See Item 14 for an Index to Financial Statements.
ITEM 9.CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
On July 21, 1997, the Company determined that it would: (a) engage the firm of
John M. Hanson & Company as the Company's independent auditors; and, (b) not
continue to use the services of Hocker, Lovelett, Hargens & Skogen, P.C. The
decision to change accountants was approved by the Board of Directors of the
Company. The change was reported on Form 8-K dated July 21, 1997 to which
reference is made for further information.
The audit reports of Hocker, Lovelett, Hargens & Skogen, P.C. on the financial
statements of Tyrex as of May 28, 1997 and for each of the years in the two year
period prior to the 11 month period then ended, did
7
not contain an adverse opinion or disclaimer of opinion, nor were they qualified
or modified as to uncertainty, audit scope or accounting principles. In
connection with the audits of the 11 months and two fiscal years ended May 28,
1997, and the subsequent interim period through July 21, 1997, there were no
disagreements with Hocker, Lovelett, Hargens & Skogen, P.C. on any matter of
accounting principles or practices, financial statement disclosure, or auditing
scope or procedure, which disagreements, if not resolved to the satisfaction of
Hocker, Lovelett, Hargens & Skogen, P.C., would have caused Hocker, Lovelett,
Hargens & Skogen, P.C. to make a reference to the subject matter of the
disagreements in connection with its audit reports.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
The following persons serve as directors and executive officers of the
Registrant as of September 30, 1997. Pursuant to the Agreement and Plan of
Reorganization and Transition Agreement under which Tyrex acquired 3Si, three of
the Tyrex directors will resign from the board upon completion of the self-
tender offer contemplated under the Agreement. See Item 5.
Officers serve at the discretion of the Board of Directors and are elected
annually by the Board of Directors. All directors hold their offices until the
next annual meeting of the shareholders of the Company and until their
successors are elected.
Name Position With Company Director Since Officer Since
John D. Traut(1) Chairman and Director 11/8/79 n/a
Tom N. Richardson President, CEO, CFO and 7/10/86 7/10/86
Director
William P. Gruman(1) Director 1/27/86 n/a
Morris R. Massey(1) Director 6/1/93 n/a
Doris K. Backus Secretary-Treasurer and 12/5/91 12/5/91
Director
Frederick J. Slack Director 5/28/97 n/a
F. Larry Valdez Director 5/28/97 n/a
Frank W. Backes Director 5/28/97 n/a
- ------------------------------
(1)Director will resign upon completion of the self-tender offer contemplated by
the Registrant as part of the Transition Agreement. See Item 5.
JOHN D. TRAUT, 70. Mr. Traut received a B.S. degree in Geology from the
University of Wyoming in 1951. Mr. Traut was employed as a petroleum geologist
for Marathon Oil Company from 1951 to 1974. From 1974 until formation of the
Company in November 1979, he was an independent consulting geologist in Casper,
Wyoming.
TOM N. RICHARDSON, 47. Mr. Richardson graduated from the University of Wyoming
in 1972 with a B.S. degree in Business Administration. From 1976 to 1980, he
worked as a Landman and Contracts Supervisor for Gulf Oil Corporation in Casper,
Wyoming. In 1980, he joined the Company as Manager of Land. He was elected
President and Chief Financial Officer of the Company in March 1994.
8
WILLIAM P. GRUMAN, 69. Mr. Gruman holds B.S. and M.S. degrees in Petroleum
Geology from the University of Oklahoma. From 1954 to 1980 he was employed by
Marathon Oil Company as an exploration geologist in the northern Rocky Mountain
Area of the U.S. and in the Canadian Sedimentary Basins of Western Canada. He
was Vice President of Exploration and a Director of Paintbrush Petroleum
Corporation from 1980 to 1985.
MORRIS R. MASSEY, 66. Mr. Massey received a B.A. degree from the University of
Wyoming in 1956 and a law degree in 1958. From 1958 to present, he has been
associated with the law firm of Brown, Drew, Massey & Sullivan in Casper,
Wyoming, and is presently the senior active partner in the firm.
DORIS K. BACKUS, 43. Ms. Backus graduated from the National College of Business
in 1974 with an Associate's Degree as a legal secretary. She has been employed
by the Company since 1983.
The following three persons are the executive officers of 3Si and are three of
Tyrex's board of directors and three of 3Si's five member board of directors.
Tom N. Richardson and Doris K. Backus, also two directors of Tyrex, joined the
3Si board in connection with the merger of the companies. Upon completion of
the self-tender offer anticipated by the Company, these three persons will
comprise a majority of Tyrex's then five person board of directors. The
positions indicated are currently those of 3Si; however, upon completion of the
self-tender offer contemplated by the Transition Agreement, these persons will
assume these executive positions for Tyrex as well.
FREDERICK J. SLACK, 42, CHIEF EXECUTIVE OFFICER. Mr. Slack has served as Co-
Owner and Chief Executive Officer of 3Si since August 1993. Mr. Slack received
his B.A. degree in Education in 1977 from the University of Northern Colorado.
Initially, Mr. Slack began his business career as a Methods and Procedures
Analyst for National Farmers Union Insurance in Denver, where he was first
introduced to mainframe computer environments. Mr. Slack then went to work as
the Western Territory Sales Manager for Travenol Labs selling hospital/medical
information systems involving IBM equipment. Finally, in 1986, Mr. Slack became
a sales/project manager for Digital Equipment Corporation. Initially, Mr. Slack
served as one of the project managers within the LSST (Large Systems Selling
Team) which focused on large complex, $1,000,000 solutions to larger customers.
LSST selling required multi-computer system disciplines including hardware,
software, consulting, training and implementation. Mr. Slack then moved his
sales expertise and success, into the Government Sales Division for Digital.
Over the next 5 years, Mr. Slack served as project manager for similarly large,
sophisticated government customers with mission critical, classified systems
needs. Mr. Slack's responsibilities included writing "white papers", preparing
and presenting bids and proposals, negotiating contracts, and implementation of
contracts once awarded. Mr. Slack, throughout his career, has been involved in
preparing personal, division and corporate budgets and implementation of those
budgets at all levels.
FRANK W. BACKES, 36, PRESIDENT. Mr. Backes has served as Co-Owner and Director
of Technology of 3Si since August 1993.~~~ Mr. Backes received his
B.S.E.E.degree in Semiconductor Physics in 1984. Mr. Backes started his career
working for Science Applications International Corporation designing Command and
Control systems for the Department of Defense. Mr. Backes' accomplishments in
the field of Command and Control systems include: research and successful
development of client-server based systems in 1987; dynamic user interface
designs in 1988 using Ada and PHIGS; implementing 3-D graphics for display of
command center information in 1989; training and working in combat position as
an orbital analyst in the Space Surveillance Center at NORAD; and, designing and
implementing several command centers pushing the development of state of the art
high availability techniques. In 1989 Mr. Backes went to work for Digital
Equipment Corporation as a computer industry analyst. In addition to his work
in the computer industry Mr. Backes has
9
utilized his skills in working with and teaching students from elementary
schools to high schools. One project was coordination, management and teaching
students to interact, over the Internet, with the Mars Land Rover developed by
Jet Propulsion Lab for NASA. This project was the first time that anyone
outside of NASA was given the opportunity to send commands over the Internet to
the Mars rover. Other projects include coaching Odyssey of the Mind teams and
working as a tutor for students in math and science.
FELIPE "LARRY" VALDEZ, 44, CHIEF OPERATING OFFICER. Mr. Valdez has served as
Chief Executive Officer of 3Si since he co-purchased 3Si in August 1993. Mr.
Valdez began his career working in telecommunications electronic manufacturing
operations in Logistics, Production and Inventory planning in 1971. Mr. Valdez
moved from telecommunications manufacturing to computer manufacturing when he
joined Digital Equipment Corporation in 1977 in its Albuquerque Operations as an
Inventory Control Planner. Shortly after that, Mr. Valdez relocated to
Digital's Colorado Springs operations where he was responsible for New Product
introduction on a variety of leading technology storage products. Mr. Valdez
was promoted into Digital's Customer Support Center where he led technical
support teams in providing remote support to a variety of customers on a
national level. Mr. Valdez joined Digital's Software Support organization
where he led technical and business consultants in providing pre-and post sales
support to Digital's Sales Representatives in major Federal Government and
Commercial Accounts. Mr. Valdez' teams were successful at winning and
deploying numerous programs for Digital Equipment where both he individually and
his teams, collectively, were recognized numerous times for their
accomplishments. Mr. Valdez obtained Bachelor and Masters Degrees in Business
Administration while employed full-time. In 1997, Mr. Valdez was selected by the
University of Phoenix as a faculty member in its Organization Behavior studies
program where he teaches Organization Communications courses.
10
ITEM 11. EXECUTIVE COMPENSATION.
~COMPENSATION~OF~EXECUTIVE~OFFICERS~
The following table sets forth all cash compensation paid by Tyrex or 3Si to
each executive officer for each of the years indicated.
SUMMARY COMPENSATION TABLE
Long-term compensation
Annual compensation Awards Payouts
Other Restric All
annual ted Option other
Name and Salary compen- Stock s/ LTIP compen-
principal position Year ($) Bonus sation (1) Awards SARs payouts sation(1)(2)
TYREX OIL COMPANY:
Tom N. Richardson 1997 $52,500 - - - - - -
President, CFO 1996 52,500 - - $7,813 - - -
1995 52,500 - - - - - -
3SI:
Frederick J. Slack 1997 $37,500 - - - - - $13,279
Chief Executive 1996 68,000 - - - - - 31,871
Officer 1995 68,000 - - - - - 71,518
1994 68,000 - - - - - 45,775
Frank W. Backes 1997 $37,500 - - - - - $13,279
President 1996 68,000 - - - - - 31,871
1995 68,000 - - - - - 71,518
1994 68,000 - - - - - 45,775
Felipe L. Valdez 1997 $37,500 - - - - - $13,279
Chief Operating 1996 68,000 - - - - - 31,871
Officer 1995 68,000 - - - - - 71,518
1994 68,000 - - - - - 45,775
<FN>
(1) Perquisites and other personal benefits or property did not, in aggregate,
exceed $50,000 or 10% of the total compensation.
(2) 3Si was a subchapter S corporation prior to its acquisition by Tyrex.
Amounts indicated are distributions to the three officers of 3Si named
above, made to them in their capacities as shareholders.
AGGREGATED OPTIONS/SAR EXERCISES IN LAST FISCAL YEAR
AND FY-END OPTION/SAR VALUES
Value of Unexercised
Shares Unexercised In-the-Money Options
Acquired on Options at FY-End(#) at FY-End($)
Name Exercise Exercisable/Unexercisable Exercisable/Unexercisable
n/a
EMPLOYMENT AGREEMENTS
Concurrent with the merger of Tyrex and 3Si, the Company entered into separate
employment agreements with each of the co-owners of 3Si - Fred Slack, Frank
Backes and Larry Valdez. Pursuant to the agreements, the Company will compensate
each of the individuals $110,000 in fiscal 1998. The individuals are eligible
for increases in their annual compensation subject to the profitability of the
Company. The agreements expire May 31, 2000 unless terminated for cause by 3Si
or early termination by the individual with 90 days written notice.
11
OPTION/SAR GRANTS TABLE
The following table provides the specified information concerning stock options
granted to officers and directors of the Company during the fiscal year ended
June 30, 1997:
Number of Percent of total
securities underlying options granted to Exercise of
options granted (#) employees in base price
Name fiscal year ($/share) Expiration Date
Tom N. Richardson 160,000 34% $0.14 January 18, 1999
William P. Gruman 160,000 34% 0.14 January 18, 1999
Doris K. Backus 49,000 10% 0.14 January 18, 1999
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table sets forth the ownership of common stock by each officer and
director of the Company and by all officers and directors as a group.
Name and address Shares beneficially
of beneficial owner owned (1) Percent
Frederick J. Slack
6886 S. Yosemite Street
Englewood, CO 80112 9,387,777 23.7%
Frank W. Backes
6886 S. Yosemite Street
Englewood, CO 80112 9,387,777 23.7%
Felipe L. Valdez
6886 S. Yosemite Street
Englewood, CO 80112 9,387,779 23.7%
John D. Traut
777 N. Overland Trail, Ste. 101
Casper, Wyoming 82601 534,000 1.3%
William P. Gruman
777 N. Overland Trail, Ste. 101
Casper, Wyoming 82601 393,500(2) <1.0%
Tom N. Richardson
777 N. Overland Trail, Ste. 101
Casper, Wyoming 82601 354,900(2) <1.0%
Doris K. Backus
777 N. Overland Trail, Ste. 101
Casper, Wyoming 82601 80,000(3) <1.0%
Morris R. Massey
777 N. Overland Trail, Ste. 101
Casper, Wyoming 82601 15,500 <1.0%
All Officers and Directors
as a Group 29,541,233 74.5%
<FN>
- ------------------------------
(1) Beneficial ownership results in each case from the possession of sole or
shared voting and investment power with respect to the shares.
(2) Includes immediately exercisable options to purchase 160,000 shares of
Common Stock at $0.14 per share at any time before January 18, 1999.
(3) Includes immediately exercisable options to purchase 49,000 shares of Common
Stock at $0.14 per share at any time before January 18, 1999.
12
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The Company rents its Wyoming office space from a partnership of which Mr. Traut
is one of four general partners. The Company pays approximately $1,000 per
month on a month-to-month basis and will be terminated upon completion of the
anticipated self-tender offer pursuant to the terms of the Transition Agreement.
In connection with the sale of Tyrex's producing oil and gas properties on May
30, 1997, 10% of the purchase price was paid by, and a 10% interest in the
properties was assigned to, Tom N. Richardson, the President of Tyrex. Mr.
Richardson paid the same price for his interest as did the non-affiliated
purchasers of the remaining 90% interest.
In June, the Company accrued termination compensation to Mr. Richardson and Ms.
Backus of $61,081 and $34,941 including accrued payroll taxes, respectively.
Mr. Richardson will continue to serve the Company as President until the
anticipated self-tender offer is complete pursuant to the terms of the
Transition Agreement. See Item 5.
Other than as set forth herein, no officer, director or principal shareholder of
Tyrex or 3Si has or proposes to have any direct or indirect material interest by
security holdings, contracts or otherwise in the Company or in any assets
proposed to be acquired by the Company or in any purchase, the value of which
will be affected by the operations of the Company.
13
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES
AND REPORTS ON FORM 8-K.
(1) FINANCIAL STATEMENTS (PRIMARY).
Independent Auditors' Report ...................................... F-1
Balance Sheets as of June 30, 1997 and December 31, 1996 .......... F-2
Statements of Operations for the six months ended June 30,
1997 and the years ended December 31, 1996 and 1995 ............ F-4
Statements of Stockholders' Equity for the six months ended
June 30, 1997 and the years ended December 31, 1996 and 1995 ... F-5
Statements of Cash Flows for the six months ended
June 30, 1997 and the years ended December 31, 1996 and 1995 ... F-6
Notes to Financial Statements ..................................... F-8
FINANCIAL STATEMENTS (SUPPLEMENTAL).
Independent Auditors' Report ...................................... SF-1
Balance Sheets as of May 28, 1997 and June 30, 1996 ............... SF-2
Statements of Operations for the period July 1, 1996 through
May 28, 1997 and the years ended June 30, 1996 and 1995 ........ SF-3
Statements of Stockholders' Equity for the period July 1, 1996
through May 28, 1997 and the years ended June 30, 1996 and 1995 SF-4
Statements of Cash Flows for the period July 1, 1996
through May 28, 1997 and the years ended June 30, 1996 and 1995 SF-5
Notes to Financial Statements ..................................... SF-6
(A) EXHIBITS.
3.1(a)Articles of Incorporation, as amended, filed as part of the Company's
Registration Statement on Form S-2 (file no. 2-68269), and incorporated
herein by this reference.
3.2 Bylaws, as amended, filed as part of the Company's Registration
Statement on Form S-2 (file no. 2-68269), and incorporated herein by
this reference.
3.3 Agreement and Plan of Reorganization and Transition Agreement among
Tyrex Oil Company, Kimbrough Computer Sales, Inc. filed as an exhibit
on Form 8-K dated June 7, 1996, incorporated herein by this reference.
4.1 Employees Incentive Stock Option Plan, as amended, filed as part of the
Company's Registration Statement on Form S-2 (file no. 2-68269), and
incorporated herein by this reference.
14
97.10.1 Form of Business financing agreement with Deutsche Financial Services
Corp. dated September 30, 1997.
97.10.2 Form of Agreement for wholesale financing with Deutsche Financial
Services Corp. dated September 30, 1997.
97.10.10 Form of Employment Agreement with Frederick J. Slack dated May 28,
1997.
97.10.11 Form of Employment Agreement with Felipe L. Valdez dated May 28,
1997.
97.10.12 Form of Employment Agreement with Frank W. Backes dated May 28,
1997.
97.21 ..............................Subsidiaries of the Registrant.
(B) REPORTS ON FORM 8-K.
(1) The Company filed a Form 8-K, dated July 21, 1997, Form 8-K/A dated
August 11, 1997, and Form 8-K/A dated September 12, 1997 reporting the
change in the Company's independent auditors.
(2) The Company filed a Form 8-K on June 6, 1997, Form 8-K on June 9, 1997
and Form 8-K/A on September 9, 1997 reporting the May 28, 1997 merger with
Kimbrough Computer Sales, Inc. dba 3Si, including the following financial
statements:
AUDITED FINANCIAL INFORMATION
Balance Sheet as of December 31, 1996
Statements of Operations for the Years Ended December 31, 1996 and 1995
Statements of Stockholders' Equity for the Years Ended December 31, 1996
and 1995
Statements of Cash Flows for the Years Ended December 31, 1996 and 1995
PRO FORMA FINANCIAL INFORMATION
Pro Forma Consolidated Balance Sheet as of March 31, 1997
Pro Forma Consolidated Statement of Operations for the Three Months Ended
March 31, 1997
Pro Forma Consolidated Statement of Operations for the Year Ended December
31, 1996
15
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Tyrex Oil Company
(Registrant)
By: /s/ Tom N. Richardson .
--------------------------------
Tom N. Richardson, President
Date: October 10, 1997 .
-----------------------------
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
Date: October 10, 1997 By: /s/ Tom N. Richardson .
----------------------------------
Tom N. Richardson, President and Chief
Executive and Financial Officer and
Director
Date: October 10, 1997 By: /s/ Doris K. Backus .
----------------------------------
Doris K. Backus, Secretary/Treasurer and
Director
Date: October 10, 1997 By: /s/ Frederick J. Slack .
----------------------------------
Frederick J. Slack, Director
Date: October 10, 1997 By: /s/ Felipe L. Valdez .
----------------------------------
Felipe L. Valdez, Director
Date: October 10, 1997 By: /s/ Frank W. Backes .
----------------------------------
Frank W. Backes, Director
Date: October 10, 1997 By: /s/ John D. Traut .
----------------------------------
John D. Traut, Director
Date: October 10, 1997 By: /s/ William P. Gruman .
----------------------------------
William P. Gruman, Director
Date: October 10, 1997 By: /s/ Morris R. Massey .
----------------------------------
Morris R. Massey, Director
16
Item 14 Primary
FINANCIAL STATEMENTS
AND
INDEPENDENT AUDITORS' REPORT
TYREX OIL COMPANY
June 30, 1997
JOHN M. HANSON & COMPANY, P.C.
Certified Public Accountants
Board of Directors
Tyrex Oil Company
Independent Auditors' Report
----------------------------
We have audited the accompanying balance sheets of Tyrex Oil Company as of
June 30, 1997 and December 31, 1996 and the related statements of operations,
changes in stockholders' equity, and cash flows for the period January 1, 1997
through June 30, 1997 and the years ended December 31, 1996 and 1995. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentations. We believe that our audits provide a reasonable basis for our
opinion.
On May 28, 1997 Tyrex Oil Company ("Tyrex") acquired 100% of the common
stock of Kimbrough Computer Sales, Inc. d/b/a 3Si Incorporated ("3Si") in a
reverse merger accounted for as a purchase. Under the terms of the merger, 3Si
is a wholly owned subsidiary of Tyrex. As discussed in Note A, the merger is
accounted for financial statement purposes as a purchase of Tyrex by 3Si, since
the merger resulted in 72% of the outstanding stock of Tyrex being held by the
3Si stockholders. The financial statements for the period ended June 30, 1997
contain the results of operations of 3Si for the six months ended June 30, 1997,
and the results of operations of Tyrex from the date of acquisition (May 28,
1997) through June 30, 1997. The financial statements for the years ended
December 31, 1996 and 1995 include the results of operations for 3Si only.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Tyrex Oil Company as of June
30, 1997 and December 31, 1996 and the results of its operations and its cash
flows for the period January 1, 1997 through June 30, 1997 and the years ended
December 31, 1996 and 1995 in conformity with generally accepted accounting
principles.
/S/John M. Hanson & Company, P.C.
Denver, Colorado
September 22, 1997, except for Note F as to which the date is October 6, 1997
F1
Tyrex Oil Company
Balance Sheets (Page 1 of 2)
June 30, 1997 and December 31, 1996
ASSETS
1997 1996
CURRENT ASSETS (NOTE F)
Cash and cash equivalents (Note B) $ 2,219,145 $ 47,166
Accounts receivable - trade (Note D) 3,334,430 4,537,908
Inventory (Note B) 643,474 286,210
Other current assets 61,102 91,053
Total current assets 6,258,151 4,962,337
PROPERTY AND EQUIPMENT - AT COST (NOTE F)
Computer systems 358,438 323,437
Furniture and fixtures (Note G) 228,480 168,234
Leasehold improvements 73,082 63,063
Total property and equipment 660,000 554,734
Less accumulated depreciation and
amortization (Note B) (297,258) (187,885)
Net property and equipment 362,742 366,849
OTHER ASSETS (NOTE F)
Deposits 20,534 20,400
Other (Notes C and G) 622,396 -
Total other assets 642,930 20,400
Total assets $ 7,263,823 $ 5,349,586
<FN>
The accompanying notes are an integral part of theses statements
F2
Tyrex Oil Company
Balance Sheets (Page 2 of 2)
June 30, 1997 and December 31, 1996
LIABILITIES AND STOCKHOLDERS' EQUITY
1997 1996
CURRENT LIABILITIES
Revolving line of credit (Note E) $ - $ 1,175,000
Notes payable (Note F) 1,264,271 -
Current portion of capital lease (Note G) 22,734 21,729
Accounts payable - trade 2,774,908 3,684,793
Customer deposits 120,498 103,863
Accrued liabilities 308,338 145,175
Total current liabilities 4,490,749 5,130,560
LONG-TERM DEBT (NOTE G) 64,502 76,060
COMMITMENTS (NOTE G) - -
STOCKHOLDERS' EQUITY (NOTES C AND I)
Common stock - authorized 50,000,000
shares of $.01 par value; issued and
outstanding 39,293,424 shares at
June 30, 1997; authorized 50,000
shares of no par value; issued and
outstanding 300 shares at December 31,
1996 392,934 30,000
Additional paid in capital 2,322,902 -
Retained (deficit) earnings (1,277) 112,966
Treasury stock-at cost, 45,000
shares at June 30, 1997 (5,987) -
Total stockholders' equity 2,708,572 142,966
Total liabilities and stockholders' equity $ 7,263,823 $ 5,349,586
<FN>
The accompanying notes are an integral part of these statements
F3
Tyrex Oil Company
Statements of Operations
For the Period January 1, 1997 through June 30, 1997
and the Years Ended December 31, 1996 and 1995
1997 1996 1995
Product sales $ 6,984,752 $15,612,000 $20,452,203
Consulting and other service revenue 2,991,784 3,395,245 1,322,018
Net sales 9,976,536 19,007,245 21,774,221
Cost of products sold 6,202,716 13,204,231 17,475,266
Costs of contract labor 477,355 640,125 194,783
Royalty expense 115,532 286,106 326,727
Total cost of goods sold 6,795,603 14,130,462 17,996,776
Gross profit 3,180,933 4,876,783 3,777,445
Selling and administrative expenses 3,370,996 4,873,193 3,886,922
(Loss) earnings from operations (190,063) 3,590 (109,477)
Other income (expense)
Interest income 5,597 16,584 3,686
Miscellaneous income 3,062 2,616 18,942
Interest expense (93,794) (170,413) (91,128)
Offering costs - (45,071) -
Loss on disposition of assets - (2,621) -
Total other expense (85,135) (198,905) (68,500)
Net loss before income taxes (275,198) (195,315) (177,977)
Income taxes (Note J) - - -
Net loss from continuing operations (275,198) (195,315) (177,977)
Discontinued operations (Note K)
Gain on disposal of oil and gas properties 200,793 - -
Net loss $ (74,405) $ (195,315) $ (177,977)
Net loss from continuing operations
per common share $ (.04) $ (651) $ (593)
Net gain from discontinued operations
per common share $ .03 $ - $ -
Net loss per common share $ (.01) $ (651) $ (593)
Weighted average shares outstanding (Note B) 6,549,154 300 300
<FN>
The accompanying notes are an integral part of these statements
F4
Tyrex Oil Company
Statements of Changes in Stockholders' Equity
For the Period January 1, 1997 through June 30, 1997
and the Years Ended December 31, 1996 and 1995
Additional Retained Total
# Common Common Treasury Paid-In (Deficit) Stockholders'
Shares Stock Stock Capital Earnings Equity
Balance, December 31, 1994 300 $ 30,000 $ - $ - $ 796,425 $ 826,425
Net loss for the year ended
December 31, 1995 - - - - (177,977) (177,977)
Dividends declared - - - - (214,555) (214,555)
Balance, December 31, 1995 300 30,000 - - 403,893 433,893
Net loss for the year ended
December 31, 1996 - - - - (195,315) (195,315)
Dividends declared - - - - (95,612) (95,612)
Balance, December 31, 1996 300 30,000 - - 112,966 142,966
Stock of 3Si acquired by Tyrex (300) (30,000) - - - (30,000)
Stock of Tyrex outstanding prior
to the merger with 3Si 10,960,091 109,601 - - - 109,601
Stock of Tyrex issued to 3Si
stockholders 28,333,333 283,333 - - - 283,333
Treasury stock of Tyrex prior
to the merger - - (5,987) - - (5,987)
Additional paid-in capital
of Tyrex - - - 2,322,902 - 2,322,902
Net loss for the period ended
June 30, 1997 - - - - (74,405) (74,405)
Dividends declared by 3Si prior to
the merger with Tyrex - - - - (39,838) (39,838)
Balance June 30, 1997 39,293,424 $ 392,934 $ (5,987)$ 2,322,902 $ (1,277)$ 2,708,572
<FN>
The accompanying notes are an integral part of these statements
F5
Tyrex Oil Company
Statements of Cash Flows (Page 1 of 2)
For the Period January 1, 1997 through June 30, 1997
and the Years Ended December 31, 1996 and 1995
1997 1996 1995
Operating activities:
Net loss $ (74,405) $ (195,315) $ (177,977)
Reconciling adjustments:
Depreciation and amortization 51,025 91,765 50,931
Gain on sale of oil and gas properties (536,700) - -
Loss on disposition of furniture and fixtures - 2,621 -
Change in operating assets and liabilities:
Accounts receivable 1,378,006 (426,212) (1,336,096)
Inventory (357,264) 138,981 (238,367)
Other assets 37,211 (50,389) (19,128)
Accounts payable (1,010,200) 723,027 1,218,541
Other liabilities 107,043 (108,211) 103,188
Total adjustments (330,879) 371,582 (220,931)
Net cash (used for) provided by
operating activities (405,284) 176,267 (398,908)
Investing activities:
Proceeds from sale of oil and gas properties 1,342,184 - -
Deposits on equipment purchases - - 3,250
Purchases of equipment (41,414) (129,088) (173,415)
Costs of merger (48,924) - -
Payment of royalty agreement (625,000) - -
Cash acquired in merger 1,887,653 - -
Net cash provided by (used for)
investing activities 2,514,499 (129,088) (170,165)
<FN>
The accompanying notes are an integral part of these statements
F6
Tyrex Oil Company
Statements of Cash Flows (Page 2 of 2)
For the Period January 1, 1997 through June 30, 1997
and the Years Ended December 31, 1996 and 1995
1997 1996 1995
Financing activities:
Proceeds from note payable $ 499,783 $ - $ -
Payments on long term debt - (21,026) (1,517)
Revolving line of credit, net - (175,000) 1,050,000
Payments on notes payable and capital leases (421,065) - -
Repayments to (advances from) owners 23,884 53,487 (80,231)
Dividends paid, prior to merger (39,838) (95,612) (214,555)
Net cash provided by (used for)
financing activities 62,764 (238,151) 753,697
Net change in cash and cash equivalents 2,171,979 (190,972) 184,624
Cash and cash equivalents at beginning of
period 47,166 238,138 53,514
Cash and cash equivalents at end of period $ 2,219,145 $ 47,166 $ 238,138
<FN>
Summary of noncash investing and financing activity:
To complete the merger of Tyrex and 3Si, Tyrex issued 28,333,333 of its $.01 par
value common shares to the three owners of 3Si. These shares were issued based
on the value of the outstanding shares of Tyrex on May 28, 1997. In connection
with the merger, the following assets and liabilities were acquired:
Cash $ 1,887,653
Oil and gas properties 1,001,867
Other assets 192,647
Liabilities (353,394)
Fair market value of stock issued $ 2,728,773
<FN>
See Note G for capital lease disclosures.
See Note K for noncash activities related to the sale of Tyrex's oil and gas
properties.
Interest paid $ 93,794 $ 176,774 $ 81,531
<FN>
The accompanying notes are an integral part of these statements
F7
Tyrex Oil Company
Notes to Financial Statements
June 30, 1997
Note A - Organization
On May 28, 1997 Tyrex Oil Company ("Tyrex") acquired 100% of the common stock of
Kimbrough Computer Sales, Inc. d/b/a 3Si Incorporated ("3Si"). Under the terms
of the merger, 3Si is a wholly owned subsidiary of Tyrex.
The merger is accounted for as a purchase of Tyrex by 3Si, since the merger
resulted in 72% of the outstanding stock of Tyrex being held by the 3Si
stockholders.
The financial statements for the period ended June 30, 1997 contain the results
of operations of 3Si for the six months ended June 30, 1997, and the results of
operations of Tyrex from the date of acquisition (May 28, 1997) through June 30,
1997. The financial statements for the years ended December 31, 1996 and 1995
include the results of operations for 3Si only. On May 30, 1997 Tyrex sold all
of its oil and gas properties. The gain on the disposal of Tyrex's oil and gas
properties is included in the financial statements as discontinued operations.
All intercompany balances and transactions have been eliminated in the financial
statements.
Tyrex was organized in Wyoming in 1979 and was engaged in oil and gas
exploration and development. There are no oil and gas activities included in
these financial statements.
3Si was incorporated in Colorado in 1979 and operates one business segment,
providing services as a systems integrator focusing on internet security
services, distributing and reselling computer hardware and software, providing
maintenance service on computers, and consulting and training services.
The principal markets for 3Si's sales and services have been the U.S. Postal
Service and large corporations located in Colorado and New Mexico. 3Si is
concentrating on expanding its sales base throughout the United States. The
corporate offices are located in Englewood, Colorado. 3Si also maintains
offices in Albuquerque, New Mexico; Raleigh, North Carolina; and Colorado
Springs, Colorado. 3Si obtains substantial hardware from two vendors, but this
hardware can be readily obtained from other sources.
In April 1996, 3Si entered into an sub-contract agreement to provide information
systems support to the U.S. Postal Service. Revenues for the six months ended
June 30, 1997 were approximately $2 million. Revenues for the nine months that
3Si operated under the agreement in 1996 were approximately $1.8 million.
F8
Notes to Financial Statements
Note B - Summary of Accounting Policies
Use of Estimates
The preparation of the Company's financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in these financial statements
and accompanying notes. Actual results could differ from those estimates.
Cash and Cash Equivalents
For purposes of the statements of cash flows, the Company considers all highly
liquid debt instruments with an original maturity of three months or less to be
cash equivalents. At June 30, 1997, the Company maintained cash balances of
approximately $1,913,000 in excess of the amount insured by the Federal Deposit
Insurance Corporation.
Inventory
Inventory is stated at lower of cost (weighted average method) or market and
consists of computer system components and service parts.
Depreciation and Amortization
Depreciation and amortization have been provided in amounts sufficient to relate
the cost of depreciable assets to operations over their estimated useful lives
using straight-line and accelerated methods. Equipment acquired under capital
leases is amortized on a straight-line basis over the lease period.
Advertising Costs
Advertising costs are charged to operations as incurred. Advertising expense
for the period ended June 30, 1997 was $19,750. For the years ended December
31, 1996 and 1995, advertising expense was $37,534 and $29,167, respectively.
Loss Per Share
Net loss per share is computed on the basis of the weighted average number of
common stock shares only, as shares subject to warrants and stock options would
have an anti-dilutive effect. The weighted average number of shares for the
years ended December 31, 1996 and 1995 are calculated using the 300 outstanding
shares of 3Si only. For the period ended June 30, 1997, the weighted average
number of shares is based on 300 shares of 3Si being outstanding for five months
and 39,293,424 shares of Tyrex being outstanding for one month.
Comparability of Financial Statements
Certain items from the December 31, 1996 and 1995 financial statements have been
reclassified in order to make them comparable to the June 30, 1997 financial
statements. There is no effect on net loss.
F9
Notes to Financial Statements
Note B - Summary of Accounting Policies (continued)
Fair Value of Financial Instruments
Estimated fair values of the Company's financial instruments (all of which are
held for nontrading purposes) are as follows:
1997 1996
Carrying Fair Carrying Fair
Amount Value Amount Value
Cash and cash equivalents $ 2,219,145 $ 2,219,145 $ 47,166 $ 47,166
Notes payable (1,264,271) (1,264,271) - -
Capital lease obligations (87,237) (87,237) (97,789) (97,789)
The carrying amount approximates fair value of cash and cash equivalents. The
fair value of debt is based on current rates at which the Company could borrow
funds with similar remaining maturities. The carrying amounts approximate fair
value.
Costs and Expense Applicable to Sales and Revenues
Costs of contract labor associated with service revenue is shown separately in
the statement of operations. Other costs associated with service revenue are
included with selling and administrative expenses as the nature of these costs
make it impractical to separate them from selling and administrative expenses.
Note C - Business Combinations
On May 28, 1997, Tyrex acquired 3Si in a reverse merger. Tyrex issued
28,333,333 of its $.01 par value common shares to the three owners of 3Si for
100% of the outstanding stock of 3Si. These shares were issued based on the
value of the outstanding shares of Tyrex on May 28, 1997. The fair value of
Tyrex's outstanding shares was determined to be $2,728,773. The excess of the
net assets of Tyrex over the value of the shares was allocated to Tyrex's oil
and gas properties.
Tyrex also paid $625,000 to satisfy a License and Royalty agreement with 3Si's
former stockholders. (See Note G) This payment has been capitalized as an
intangible asset and is being amortized using the straight-line method over 20
years.
F10
Notes to Financial Statements
Note C - Business Combinations (continued)
The following summarized pro forma (unaudited) information assumes the
acquisition had occurred on January 1, 1996.
1997 1996
Net sales $ 9,976,536 $ 19,007,245
Loss from continuing operations $ (275,198) $ (195,315)
Income from discontinued operations $ 436,915 $ 55,743
Net income (loss) $ 161,717 $ (139,572)
Earnings per share
Primary
Loss from continuing operations $ (.01) $ -
Income from discontinued operations $ .01 $ -
Net (loss) $ - $ -
The above amounts reflect adjustments for revaluation of the basis of the oil
and gas properties sold.
Note D - Accounts Receivable
1997 1996
Trade receivables $3,379,430 $4,552,908
Allowance for doubtful accounts (45,000) (15,000)
-------- --------
Net $3,334,430 $4,537,908
At June 30, 1997 approximately 48% of trade receivables were owed by nine
customers. Generally, the Company does not require collateral or other security
to support customer receivables.
F11
Notes to Financial Statements
Note E - Revolving Line of Credit
The bank revolving line of credit expired April 7, 1997. The weighted average
interest rate for the period ended December 31, 1996 was 10.87%. The weighted
average interest rate for the period January 1, 1997 through April 7, 1997 was
11.57%.
Note F - Notes Payable
1997 1996
--------- ---------
Note payable to a bank with monthly payments of
$80,000 plus interest at 2.5% over prime rate,
due September 2, 1997; collateralized by substan-
tially all assets of 3Si and guaranteed by the
three officers of 3Si. The note contains restric-
tions relating to incurring additional debt and
maintaining certain financial ratios. The weight-
ed average interest rate for this note payable
from April 8, 1997 through June 30, 1997 was
11.50%. $ 946,285 $ -
Note payable to a financing company with weekly
payments of $10,970 including interest at 9.5%,
due February, 1998. This note is unsecured. 317,986 -
----------- -----------
$1,264,271 $ -
========== ===========
On September 30, 1997, the note payable to the bank was replaced by an account
receivable facility with a financing company. The terms of this facility
provide for the Company to borrow up to $2,000,000, subject to a limitation of
85% of the Company's net eligible account receivable balance. Interest is at
the prime rate, and the facility is due October 1, 1998, but may be renewed for
additional one year periods. The facility is collateralized by substantially
all assets of the Company, and contains restrictions relating to incurring
additional debt or issuing additional security interests and altering the
Company's structure.
Note G - Commitments
Leases
The Company currently has operating leases for office space in Englewood and
Colorado Springs, Colorado and Albuquerque, New Mexico. The rent expense is net
of a sublease in the Englewood office of $23,500 and $27,000 for the period
ended June 30, 1997, and the year ended December 31, 1996, respectively.
Rent expense was $53,137 for the period ended June 30, 1997 and $124,440 and
$136,055 for the years ended December 31, 1996 and 1995, respectively.
F12
Notes to Financial Statements
Note G - Commitments (continued)
During December, 1995, 3Si acquired $120,332 of furniture and fixtures under a
capital lease. Accumulated amortization is $38,105 at June 30, 1997, and
$26,072 at December 31, 1996.
Capital Capital Operating
Lease Lease Leases
Minimum Debt Minimum
Payment Maturity Payment
June 30, 1998 $ 31,324 $ 22,734 $ 151,847
June 30, 1999 31,324 25,570 140,966
June 30, 2000 31,324 28,500 133,062
June 30, 2001 10,442 10,432 133,062
June 30, 2002 - - 30,768
$ 104,414 87,236 $ 589,705
Less current portion (22,734)
Long term debt $ 64,502
Royalties
3Si executed a License and Royalty Agreement effective August 1, 1993 with
former stockholders of 3Si. Under the terms of the agreement, 3Si was obligated
to pay 1.5% of gross revenues as a royalty expense to the former stockholders
through July, 1999. As a condition of the agreement with the former
stockholders, dividends payable to the new stockholders had been limited. As
part of the merger, Tyrex satisfied this royalty agreement for a payment of
$625,000. The buy out of this agreement is recorded as an intangible asset and
is being amortized using the straight-line method over twenty years.
Employment Agreements
The Company entered into separate employment agreements with each of the co-
owners of 3Si -Fred Slack, Frank Backes and Larry Valdez. Pursuant to the
agreements, the Company will compensate each of the individuals $110,000 in
fiscal 1998. The individuals are eligible for increases in their annual
compensation subject to the profitability of the Company. The agreements expire
May 31, 2000 unless terminated for cause by 3Si or early termination by the
individual with 90 days written notice.
F13
Notes to Financial Statements
Note H - Profit Sharing Plan
3Si established a 401(k) profit-sharing plan covering substantially all
employees during the year ended December 31, 1995. Company contributions are at
the discretion of the Board of Directors. For the period ended June 30, 1997
and the years ended December 31, 1996 and 1995, no contributions were made to
the plan.
Note I - Stock Options and Warrants
Tyrex has a stock option plan whereby 750,000 shares of common stock were
reserved for issuance to employees. On January 18, 1997, prior to the merger
with 3Si, options for 469,000 shares were granted. These options are fully
vested and expire January 18, 1999 or within 90 days of employee's termination.
The option price is equal to 50% of the market value of the common stock on the
date of grant. These options are recorded in accordance with FASB Statement
123, "Accounting for Stock Based Compensation" using the quoted market value of
Tyrex's common stock. No compensation expense related to these options is
recorded in these financial statements.
Tyrex's stock option plan contains a provision that in the event Tyrex merges
with another corporation the provisions of the stock option plan are binding
upon the new corporation.
The plan also contains a provision that in the event of an increase or decrease
in the number of shares of capital stock of Tyrex, there will be a proportionate
and equitable adjustment to the terms of the outstanding options with respect to
the amount and class of stock remaining subject to option, and the purchase
price to be paid for the stock. At June 30, 1997, the effects of this provision
on the outstanding options and the stock purchase price has not been determined.
Changes in the status of options outstanding under the plan for the period from
May 29, 1997 to June 30, 1997 are as follows:
Beginning of period, May 29, 1997 469,000
Granted -
Terminated -
------
End of period, June 30, 1997 469,000
Option price $ .14
On May 28, 1997, Tyrex granted warrants to purchase 750,000 shares of the
Company's common stock at a price of $.30 per share. These warrants become
exercisable 90 days after May 28, 1997 and are effective for two years from that
date.
F14
Notes to Financial Statements
Note J - Income Taxes
The Company will file a consolidated federal income tax return for the twelve
months ended June 30, 1997. This return will contain twelve months of
operations for Tyrex and one month of operations, subsequent to the merger, for
3Si. Prior to the merger, 3Si was organized as an S corporation. All earnings
were passed through to the 3Si stockholders and taxed on their individual tax
returns.
The merger of Tyrex and 3Si was accomplished through a tax-free reorganization.
The Company's deferred tax asset is compromised of the following at June 30,
1997.
Related to net operating loss carryforward
generated by 3Si for the one month ended
June 30, 1997 $ 21,000
Valuation allowance (21,000)
-------
Net deferred tax asset $ -
The Company has available at June 30, 1997, an unused net operating loss
carryforward of $97,000 expiring June 30, 2012.
For the year ended June 30, 1997, Tyrex had approximately $3,390,000 of
operating loss carryforwards available. These loss carryforwards will be
applied to taxable income generated from Tyrex's operations and the sale of its
oil and gas properties. None of these prior Tyrex net operating losses are
available in future years.
A reconciliation of income tax at the statutory rate to the Company's effective
rate for the year ended June 30, 1997 is as follows:
Computed at the expected statutory rate 34%
Effect of net operating loss carryforward
and valuation allowance (34)%
---
Effective income tax rate 0%
F15
Notes to Financial Statements
Note K - Discontinued Operations
On May 30, 1997 Tyrex sold all of its oil and gas properties and discontinued
all of its oil and gas operating activities. The selling price was $1,803,257.
After adjusting for revenues received and expenses paid, net cash received was
$1,563,258. A deposit of $180,325 was received in a prior period. At June 30,
1997, $40,749 was recorded as an account receivable. These oil and gas
operations were conducted by Tyrex Oil Company prior to the merger with 3Si. No
discontinued operations are included in the December 31, 1996 and 1995 financial
statements which reflect only the operations of 3Si. Tyrex incurred costs of
$116,633, including payroll taxes, to provide severance pay for three employees
associated with the oil and gas operations. This amount has been recorded an
accrued liability at June 30, 1997, and included in the direct costs associated
with the disposition of the oil and gas properties.
There is no tax effect from the sale of the oil and gas properties as Tyrex has
sufficient net operating loss carryforwards to offset any taxable gain on the
sale.
The gain from discontinued operations consists of the following:
Gain on sale of oil and gas properties $536,700
Direct cost associated with disposition of
oil and gas properties, including severance
package and merger costs incurred by Tyrex (335,907)
--------
Gain on sale of discontinued operations $200,793
Note L - Related Party Transactions
Amounts due from a 3Si stockholder were $2,862 and $26,744 at June 30, 1997 and
December 31, 1996, respectively. These amounts are included in accounts
receivable - trade and other current assets.
Amounts due to two officers of Tyrex under a severance pay agreement are $89,198
at June 30, 1997. These amounts are included in accrued liabilities.
See Note G regarding employment agreements with three officers.
The sale of the oil and gas properties was made, in part, to a related party;
10% of the interest in these properties was sold to an officer of the
corporation. The terms of the sale to the officer did not differ from the terms
of the sale to unrelated third parties.
F16
Item 14 Supplemental
HOCKER, LOVELETT, HARGENS & SKOGEN, P.C.
Certified Public Accountants
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Stockholders and Board of Directors
Tyrex Oil Company
We have audited the balance sheets of Tyrex Oil Company as of May 28, 1997 and
June 30, 1996 and the related statements of operations, stockholders' equity,
and cash flows for the period July 1, 1996 through May 28, 1997 and the years
ended June 30, 1996 and 1995. These financial statements are the responsibility
of the Company's management. Our responsibility is to express an opinion on
these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amount and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Tyrex Oil Company as of May 28,
1997 and June 30, 1996, and the results of its operations and its cash flows for
the period July 1, 1996 through May 28, 1997 and the years ended June 30, 1996
and 1995, in conformity with generally accepted accounting principles.
/S/Hocker, Lovelett, Hargens & Skogen, P.C.
Casper, Wyoming
July 18, 1997
SF1
TYREX OIL COMPANY
BALANCE SHEETS
MAY 28, 1997 AND JUNE 30, 1996
1997 1996
ASSETS
CURRENT ASSETS
Cash and cash equivalents - Note 11 $ 1,882,653 $ 478,195
Certificates of Deposit 5,000 105,000
Accounts receivable 155,609 154,842
Prepaid costs 34,139 862
Deferred tax asset - Note 7 90,000 -
Total 2,167,401 738,899
OTHER ASSETS
Investment - - 89,109
Other - - 6,777
Total - - 95,886
PROPERTY AND EQUIPMENT, at cost - Notes 3 and 8
Oil and gas properties using successful efforts method,
net of accumulated depreciation and depletion of
$2,671,902 in 1997 and $2,792,301 in 1996 1,134,884 1,994,961
Less: impairment allowance (33,742) (40,603)
1,101,142 1,954,358
Other equipment, net of accumulated depreciation
of $60,953 in 1997 and $64,137 in 1996 2,899 5,944
Total 1,104,041 1,960,302
Total $ 3,271,442 $ 2,795,087
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ 100,315 $ 68,775
Deposit payable 180,325 - -
Accrued expenses 72,183 64,144
Lease payable - Note 12 571 2,486
Current portion of debt - Note 10 - - 43,107
Total 353,394 178,512
DEFERRED COMPENSATION - Note 5 - - 32,491
LONG-TERM DEBT - Note 10 - - 154,001
Total 353,394 365,004
STOCKHOLDERS' EQUITY - Note 5
Common stock, $.01 par value; authorized -
50,000,000 shares; issued and outstanding - 10,960,091
shares in 1997 and 1996 109,601 109,601
Additional paid-in capital 5,460,910 5,396,910
Retained (deficit) (2,646,476) (3,070,441)
Total 2,924,035 2,436,070
Less: Treasury stock, at cost, 45,000 shares in 1997 and 1996 (5,987) (5,987)
2,918,048 2,430,083
Total $ 3,271,442 $ 2,795,087
<FN>
See accompanying notes to financial statements.
SF2
TYREX OIL COMPANY
STATEMENTS OF OPERATIONS
FOR THE PERIOD JULY 1, 1996 THROUGH MAY 28, 1997
AND THE YEARS ENDED JUNE 30, 1996 AND 1995
1997 1996 1995
REVENUES
Oil and gas sales - Note 4 $ 1,422,016 $ 1,330,128 $ 1,410,917
Sales of oil and gas properties 660,325 6,903 453,100
Sale of investments 100,377 7,232 16,426
Sale of other equipment 930 500 -
Interest 50,652 5,110 10,460
Coal 17,530 28,363 51,960
Other, primarily operating fees 83,398 124,526 110,575
Total 2,335,228 1,502,762 2,053,438
COSTS AND EXPENSES
Oil and gas production 574,243 697,998 600,134
Production taxes 149,895 134,339 169,347
Cost of oil and gas properties sold 637,083 7,894 254,679
Cost of investments sold 88,437 13,703 11,526
Cost of other equipment sold 461 14 -
Exploration 51,599 123,100 196,132
Depreciation, depletion and valuation 177,375 361,581 308,851
allowance
Interest 6,365 20,590 38,346
General and administrative - Notes 5 and 6 315,805 299,755 330,525
Total 2,001,263 1,658,974 1,909,540
INCOME (LOSS) BEFORE INCOME TAXES 333,965 (156,212) 143,898
INCOME TAX EXPENSE (CREDITS) - Note 7
Current - - -
Deferred (90,000) - -
(90,000) - -
NET INCOME (LOSS) $ 423,965 $ (156,212) $ 143,898
DIVIDENDS PER SHARE $ - $ - $ -
INCOME (LOSS) PER COMMON AND COMMON
EQUIVALENT SHARE $ .04 $ (.01) $ .01
WEIGHTED AVERAGE SHARES OUTSTANDING 11,166,451 10,897,707 10,795,091
<FN>
See accompanying notes to financial statements.
SF3
TYREX OIL COMPANY
STATEMENT OF STOCKHOLDERS' EQUITY
FOR THE PERIOD JULY 1, 1996 THROUGH MAY 28, 1997
AND THE YEARS ENDED JUNE 30, 1996 AND 1995
Additional Total Stock-
Common Stock Treasury Paid - In Retained holders'
Shares Amount Stock Capital (Deficit) Equity
Balance June 30,
1994 10,795,091 $ 107,951 $ - $ 5,385,669 $ (3,058,127) $ 2,435,493
Purchases of
25,000 shares
treasury stock - - (3,352) - - (3,352)
Net income for the
year ended June 30,
1995 - - - - 143,898 143,898
Balance June 30,
1995 10,795,091 107,951 (3,352) 5,385,669 (2,914,229) 2,576,039
Purchases of
20,000 shares
treasury stock - - (2,635) - - (2,635)
Stock bonuses 165,000 1,650 - 11,241 - 12,891
Net loss for the
year ended June 30,
1996 - - - - (156,212) (156,212)
Balance June 30,
1996 10,960,091 109,601 (5,987) 5,396,910 (3,070,441) 2,430,083
Compensation
associated with
stock options - - - 64,000 - 64,000
Net income for the
period July 1, 1996
through May 28,
1997 - - - - 423,965 423,965
Balance May 28,
1997 10,960,091 $ 109,601 $ (5,987) $ 5,460,910 $ (2,646,476) $ 2,918,048
<FN>
See accompanying notes to financial statements.
SF4
TYREX OIL COMPANY
STATEMENTS OF CASH FLOWS
FOR THE PERIOD JULY 1, 1996 THROUGH MAY 28, 1997
AND THE YEARS ENDED JUNE 30, 1996 AND 1995
1997 1996 1995
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income ( loss) $ 423,965 $ (156,212) $ 143,898
Adjustments to reconcile net income (loss) to net
cash provided by operating activities:
Depreciation and depletion 177,375 361,581 308,851
Sales of properties (661,254) (14,635) (469,526)
Costs of properties disposed 637,544 21,611 266,205
Investment of revenue reinvested - (28,363) -
Stock options 31,509 - -
Gain on sale of investment (11,940) - -
Deferred tax adjustments (90,000) - -
(Increase) Decrease in:
Interest receivable - 5,138 (2,189)
Accounts receivable (767) (31,446) 76,473
Prepaid costs (33,277) 948 (1,810)
(Decrease) Increase in:
Accounts payable and accrued expenses 39,579 (17,606) (15,213)
Leases payable - - 4,268
Deferred compensation - 6,031 8,820
Surrendered leases 41,409 100,434 143,122
Total adjustments 130,178 403,693 319,001
Net Cash Provided by Operating Activities 554,143 247,481 462,899
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sales of properties 661,255 7,403 453,100
Deposit received on sale of properties 180,325 - -
Purchases of properties (68) (67,871) (208,691)
Proceed from sale of investments 100,377 7,232 16,426
Purchase of investments - (17,171) (12,655)
Investment income 7,449 28,363 -
Certificates of deposit and treasury bills (purchased)
redeemed 100,000 (100,000) -
Net cash provided by (used in) investing activities 1,049,338 (142,044) 248,180
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from borrowings - 125,000 -
Repayments on borrowings and leases (199,023) (92,879) (578,021)
Purchase of treasury stock - (2,635) (3,352)
Issuance of common stock - 12,891 -
Net cash provided by (used in) financing activities (199,023) 42,377 (581,373)
NET INCREASE IN CASH AND CASH EQUIVALENTS 1,404,458 147,814 129,706
CASH AND CASH EQUIVALENTS AT
BEGINNING OF YEAR 478,195 330,381 200,675
CASH AND CASH EQUIVALENTS AT
END OF YEAR $ 1,882,653 $ 478,195 $ 330,381
<FN>
See accompanying notes to financial statements.
SF5
TYREX OIL COMPANY
NOTES TO FINANCIAL STATEMENTS
1. Significant Accounting Policies:
a.General - The Company was organized November 8, 1979, and is engaged in
oil and gas exploration and development within the Rocky Mountain
region of the United States. Its sales are primarily to other energy
oriented companies with payment terms normally being upon transfer of
ownership or within thirty days.
b.Cash and Cash Equivalents - For purposes of the Statement of Cash
Flows, the Company considers all highly liquid debt instruments
purchased with a maturity of three months or less to be cash
equivalents.
c.Oil and Gas Properties - The Company follows the successful efforts
method of accounting for its oil and gas activities. Under this
accounting method, costs associated with the acquisition, drilling, and
equipping of successful exploratory and development wells are
capitalized. Geological and geophysical costs, delay rentals, and
drilling costs of unsuccessful exploratory wells are charged to expense
as incurred. Depletion and depreciation of the capitalized costs for
producing oil and gas properties are provided by the unit-of-production
method based on proved oil and gas reserves.
d.Other Equipment - Leasehold improvements, processing equipment, office
equipment and furniture are depreciated by the straight-line and
accelerated methods over estimated useful lives of three to seven
years.
e.Income Taxes - Deferred income taxes are provided for the tax effect
of timing differences arising from certain costs and expenses which are
recognized in different periods for income tax and financial reporting
purposes. For additional information regarding income taxes, see Note
7 to the financial statements.
f.Income (Loss) Per Share - Income per share is computed on the basis
of the weighted average number of common stock and common stock
equivalent shares outstanding during the period. Net loss per share is
computed on the basis of the weighted average number of common stock
shares only as shares subject to warrants and stock options would have
an antidilutive effect.
g.Bad Debts - The direct write off method of accounting for uncollectible
accounts receivable is utilized whereby an account is written off only
when determined to be uncollectible. The results of this method do not
vary materially from the preferred method.
h.Estimates - The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported assets and
liabilities and disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues
and expenses during the reporting period. Actual results could differ
from those estimates.
SF6
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. Subsequent and Significant Events
Subsequent to May 28, 1997, the Company entered into an Agreement and Plan
of Reorganization and Transition Agreement whereby it was acquired by
Kimbrough Computer Sales, Inc. d/b/a 3SI, Inc. in a reverse triangular
merger. The merger is to be accounted for under the purchase method. Tyrex
issued 28,333,333 shares of common stock to the three 3SI shareholders.
Also, as part of the transaction, the Registrant was required to buyout the
royalty agreement from the predecessor 3SI shareholders. Tyrex remains the
registrant and 3SI will be a wholly owned subsidiary of the Registrant.
As part of the merger and transition agreement, Tyrex Oil Company was to
completely divest itself of its oil and gas properties and discontinue all
of its oil and gas operating activities. The proposed sale of all oil and
gas properties was also consummated subsequent to May 28,1997 and
subsequent to the merger. The properties were sold for a purchase price of
$1,803,257. For allocation of operating revenue and expense purposes, the
sale was effective January 1, 1997. Thus, after closing the sale on May 30,
1997, Tyrex paid to the purchaser $239,999 for revenue received in excess
of expenses paid from January 1, 1997 through the June, 1997 closing. Title
to the properties did not pass and the risk of loss did not pass until such
time as the Agreement was closed, therefore, in accordance with generally
accepted accounting principles, the operating revenue and expenses are
properly reflected in the May 28, 1997 financial statements. The President
of the Company, in association with outside parties, purchased a 10%
interest in the oil and gas properties.
As a result of the merger and asset sale, in future consolidated financial
statements, the results from operations of oil and gas activities will be
reflected as discontinued operations. The merger and transition agreement
also provides a severance package for Tyrex's current employees. The
estimated liability to the Company is $120,000 to be reflected in the June
30, 1997 consolidated financial statements with the sale of the oil and gas
properties.
Also, as a result of the merger, subsequent to May 28, 1997, Tyrex will
file a consolidated tax return with 3SI.
SF7
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
2. Subsequent and Significant Events (Continued)
Condensed proforma financial statement for Tyrex Oil Company as of and for
the 32 day period ended June 30, 1997 is as follows:
BALANCE SHEET
Assets
Cash and short-term investments $ 1,969,042
Accounts receivable 59,020
Furniture and fixtures 2,665
Investment in subsidiary 400,000
Intangible asset - royalty 622,396
Total Assets $ 3,053,123
Liabilities and Stockholders' Equity
Liabilities
Accounts payable $ 6,924
Accrued expenses 116,633
Total Liabilities 123,557
Stockholders' Equity
Common stock 392,934
Additional paid-in capital 4,988,302
Retained (deficit) (2,445,683)
Total 2,935,553
Less: Treasury Stock (5,987)
Total Stockholders' Equity 2,929,566
Total Liabilities and Stockholders' Equity $ 3,053,123
INCOME STATEMENT
Revenues
Interest income $ 1,757
INCOME FROM CONTINUING OPERATIONS 1,757
INCOME FROM DISCONTINUED OPERATIONS 199,036
NET INCOME $ 200,793
SF8
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
3. Impaired Oil and Gas Properties
The Company provides an allowance for impaired value of undeveloped and
developed properties on an annual basis. An impairment allowance has been
provided for one producing property at May 28, 1997 and two producing
properties at June 30, 1996. The impairment was provided due to the fact
that net future estimated revenues are not expected to be great enough to
offset the costs that the Company has in the properties. The impairment
loss originated in 1995 and is included in exploration costs on the
Statement of Operations for the year ended June 30, 1995.
4. Major Customers
Certain customers who accounted individually for more than 10% of the
Company's oil and gas sales are as follows:
1997 1996 1995
Company A $ 592,382 $ 548,778 $ 558,371
Company B 361,030 440,535 451,785
Company C - 144,745 147,345
5. Employees' Incentive Stock Option Plan
Under an employees' incentive stock option plan approved by the
stockholders in December, 1991, 750,000 shares of common stock were
authorized and reserved for issuance to employees. Options granted under
this plan expire five years from the date of grant. The option price was
equal to 50% of the market value of the common stock on the date of grant.
Non-cash compensation to employees in fiscal years 1995-96 and 1994-95 was
recognized in the amount of $8,148 and $8,820 per year, respectively, due
to vested options. There were four options outstanding which would have
expired if not exercised on or before January 17, 1997.
On January 18, 1997, the Board of Directors granted new options,
substantially equal to the previous options, which will expire if not
exercised on or before January 18, 1999. The new options were recorded in
accordance with FASB Statement 123, "Accounting for Stock Based
Compensation" using the current fair value of Tyrex common stock ($.27 per
share).
SF9
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
5. Employees' Incentive Stock Option Plan (Continued)
Changes in the status of options outstanding under the plan for the periods
ended May 28, 1997 and June 30, 1996 and 1995, are as follows:
Shares
1997 1996 1995
Beginning of year 582,000 630,000 630,000
Granted 469,000 - -
Terminated (582,000) (48,000) -
End of year 469,000 582,000 630,000
Option Price $ .14 $ .14 $ .14
The Company also granted 165,000 shares in stock bonuses during the year
ended June 30, 1996 for which $12,891 is recognized as compensation in the
Statement of Operations for that period.
6. Related Party Transactions and Rents
The Company rents office space on a month-to-month basis. The Company paid
$10,602 during the period ended May 28, 1997 for its current space.
Previously, the Company rented a portion of its office facilities from an
officer-director. The rental agreement ended August, 1996. Payments to this
individual were $1,713, $10,278, and $10,278 for the periods ended May 28,
1997 and June 30, 1996 and 1995, respectively.
7. Income Taxes
The Company follows FASB Statement 109, "Accounting for Income Taxes,"
(SFAS 109) which applies an asset and liability approach requiring the
recognition of deferred tax assets and liabilities with respect to the
expected future tax consequences of events that have been recorded in the
financial statements and tax returns. Income tax at the statutory rate is
reconciled to the Company's actual income tax (benefit) expense at 15% for
the periods ended May 28, 1997 and June 30, 1996 and 1995. The Company has
no foreign, state or other income taxes.
All of the Company's earnings are within the United States.
1997 1996 1995
Income Tax (Credits)
Current $ - $ - $ -
Deferred (90,000) - -
Total $ (90,000) $ - $ -
SF10
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
7. Income Taxes (Continued)
Deferred tax liabilities (assets) are comprised of the following at:
May 28, June 30,
Tax effects of temporary differences 1997 1996 1995
1st year federal lease rentals $ 61,887 $ 61,887 $ 61,887
Intangible drilling costs 99,288 184,771 184,771
Lease impairments 5,061 6,090 6,090
Total deferred tax liabilities 166,236 252,748 252,748
Depletion of intangible drilling
costs (79,942) (152,804) (140,458)
Cost of lease surrendered (36,873) (36,873) (36,873)
Depreciation (2,670) (2,670) (2,670)
Other assets (13,799) (13,799) (14,436)
Stock options (19,500) - -
Net operating loss carryforwards (449,831) (535,928) (524,959)
Total deferred tax assets (602,615) (742,074) (719,396)
Valuation allowances 346,379 489,326 466,648
Net deferred tax assets $ 90,000 $ - $ -
As discussed in Note #2 on subsequent events, the Company sold its oil and
gas properties at a taxable gain of $650,000. Therefore, under the
definitions in SFAS 109, it is considered more likely than not that the
$90,000 net deferred tax asset at May 28, 1997 will be recognized.
At May 28, 1997, the Company had unused deductions and credits which may be
applied against future taxable income and which expire as follows:
Percent-
age Net
Depletion Operating
Year in Excess Loss Invest-
Ending of Cost Carry- ment Tax
June 30, Depletion forward Credit
1998 $ - $ 1,131,777 $ -
1999 - - 1,641
2000 - - 3,397
2000 - 770,086 890
2001 - 76,105 -
2003 - 170,572 -
2004 - 218,090 -
2005 - 142,283 -
2007 - 184,962 -
2008 - 648,866 -
2011 - 47,854 -
Indefinite 209,675 - -
SF11
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
7. Income Taxes (Continued)
In the opinion of management, very immaterial differences exist between the
net operating loss carryforwards available for tax purposes and financial
reporting purposes.
8. Oil and Gas Producing Activities
Capitalized costs relating to oil and gas producing activities are as
follows as of:
May 28, June 30,
1997 1996 1995
Undeveloped properties $ 80,363 $ 452,164 $ 550,012
Developed properties 3,726,423 4,335,098 4,285,955
Total 3,806,786 4,787,262 4,835,967
Accumulated depreciation and
depletion (2,671,902) (2,792,301) (2,443,458)
Net $ 1,134,884 $ 1,994,961 $ 2,392,509
Costs incurred in oil and gas property acquisitions, exploration, and
development activities for the periods ended (all located in the United
States) are as follows:
May 28, June 30,
1997 1996 1995
Property acquisition:
Proved $ 68 $ 55,342 $ 37,171
Unproved - 7,629 60,448
Exploration 51,599 123,100 196,132
Development - 5,223 108,319
Total $ 51,667 $ 191,294 $ 402,070
SF12
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
8. Oil and Gas Producing Activities (Continued)
Reserve quantity information (unaudited) for the periods ended (all located
in the United States):
Proved Developed Reserves
May 28, June 30,
1997 1996 1995
Oil Gas Oil Gas Oil Gas
(bbls) (mcf) (bbls) (mcf) (bbls) (mcf)
Beginning of year 658,080 1,031,881 575,088 1,174,442 668,925 1,309,470
Revisions of previous estimates 313 2,594 165,551 (190,831) (22,276) -
Purchases (sales) of minerals in
place - net (2,104) (143,720) (1,231) 147,234 18,365 -
Discoveries - - - - - -
Production (69,000) (111,131) (81,328) (98,964) (89,926) (135,028)
End of year 587,289 779,624 658,080 1,031,881 575,088 1,174,442
Proved Undeveloped Reserves
May 28, June 30,
1997 1996 1995
Oil Gas Oil Gas Oil Gas
(bbls) (mcf) (bbls) (mcf) (bbls) (mcf)
Beginning of year - - - - - -
Revisions of previous estimates - - - - - -
Purchases (sales) of minerals in
place - - - - - -
Discoveries - - - - - -
Production - - - - - -
End of year - - - - - -
The above reserve information is based on estimates prepared in 1996 by
Allen & Crouch, independent petroleum engineers, from data including
ownership interests, operating expenses, production information and current
prices furnished to them by the Company with revisions by the Company for
1997 activity. Estimates of gas and oil reserves and their estimated values
require numerous engineering assumptions as to the productive capacity and
production rates of existing geological formations and require the use of
certain SEC guidelines as to assumptions regarding costs to be incurred in
developing and producing reserves and prices to be realized from the sale
of future production. Revisions of previous year estimates can have a
significant impact on these values. Also, exploration costs in one year may
lead to significant discoveries in later years and may significantly change
previous estimates of proved reserves and their valuation. Accordingly,
estimates of reserves and their value are inherently imprecise and are
subject to constant revision and change and should not be construed as
representing the actual quantities of future production or cash flows to be
realized from the Company's gas and oil properties or the fair market value
of such properties.
SF13
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
8. Oil and Gas Producing Activities (Continued)
The following is a standardized measure of the discounted net future cash
flows and changes applicable to proved oil and gas reserves required by the
SFAS 69 of the FASB. The future cash flows are based on estimates of oil
and gas reserves utilizing prices and costs in effect as of year end
discounted at 10% per year and assuming continuation of existing economic
conditions.
Standardized measure of discounted future net cash flows and changes
therein relating to proved oil and gas reserves is as follows at
(unaudited):
May 28, June 30,
1997 1996 1995
Future cash flows $ 11,408,454 $ 11,878,297 $ 9,500,916
Future production costs (5,771,280) (6,844,832) (4,766,970)
Future development costs (341,026) (310,024) (281,840)
Future income taxes (285,833) (194,972) (174,388)
Future net cash flows 5,010,315 4,528,469 4,277,718
10% annual discount (1,503,095) (1,358,541) (1,283,315)
Discounted future net
cash flows $ 3,507,220 $ 3,169,928 $ 2,994,403
The following are the principal sources of changes in the standardized
measure of discounted future net cash flows for the period ended
(unaudited):
May 28, June 30,
1997 1996 1995
Sales, net of production
costs $ (697,878) $ (497,791) $ (641,437)
Sales of properties (99,762) - -
Purchases - (67,728) 149,675
Revisions of previous
quantity estimates 7,714 1,463,140 (181,548)
Net changes in prices and
production costs 776,496 (1,039,089) 2,113,382
Accretion of discount 350,722 316,993 299,440
Net changes $ 337,292 $ 175,525 $ 1,739,512
SF14
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
8. Oil and Gas Producing Activities (Continued)
Unaudited sales prices and costs are as follows:
1997 1996 1995
Sales price
Oil (per bbl) $ 18.43 $ 17.36 $ 15.03
Gas (per mcf) .75 .44 .73
Production costs,
including taxes
Oil (per bbl) 8.67 8.99 6.88
Gas (per mcf) .87 .90 .69
9. Off-Balance Sheet Risk of Financial Instruments
Interest bearing, time deposits are held by the Company in commercial banks
in excess of the Federal Deposit Insurance Corporation's maximum limits.
The excess deposits totaled $1,380,853 at May 28, 1997 and $282,743 at June
30, 1996.
10. Long-Term Debt and Collateralized Assets
The following is a summary of notes payable at June 30, 1996:
Note payable to Key Bank in monthly
installments of $5,345 including interest at
9.625%, due November 11, 2000 secured by
a mortgage security agreement on certain
producing properties $ 197,108
Less: Current maturities (43,107)
$ 154,001
<FN>
The note was paid during the period ending May 28, 1997.
11. Cash Equivalents
Included as cash equivalents at May 28, 1997 are investments in Treasury
Bills in the amount of $550,604. The cost of these instruments approximates
market value and they are intended to be held until maturity.
SF15
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
12. Capital Lease
During the fiscal year 1995, the Company entered into a capital lease for a
copier which is recorded in the balance sheet under Other Equipment. Cost
of the copier was $2,500 and accumulated depreciation at May 28, 1997 was
$1,780.
Future minimum lease payments under the capital lease as of May 28, 1997
are $571 due within the next year.
13. Reclassifications
Certain items in the 1996 and 1995 financial statements have been
reclassified to conform to the current year's presentation.
14. Supplemental Cash Flow Information
Cash payments during the periods ended May 28, 1997 and June 30, 1996 and
1995 included interest of $6,365, $20,590 and $38,346, respectively.
In 1997, non-cash financing activities included the issuance of stock
options with an aggregate value of $130,000. The Company had previously
recorded a liability of $32,491 on a separate option issue.
SF16
Exhibit 97.10.1
BUSINESS FINANCING AGREEMENT
This Business Financing Agreement ("Agreement") is made as of September 30,
1997 between DEUTSCHE FINANCIAL SERVICES CORPORATION ("DFS") and Kimbrough
Computer Sales, Inc. , a | | SOLE PROPRIETORSHIP, | | PARTNERSHIP, | X |
CORPORATION, | | LIMITED LIABILITY COMPANY (check applicable term) ("Dealer"),
having a principal place of business located at 6886 South Yosemite Street,
Englewood, CO 80012.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
1. DEFINITIONS
-----------
1.1 SPECIAL DEFINITIONS. The following terms will have the following
meanings in this Agreement, Agreement for Wholesale Financing and in
the Other Agreements:
"ACCOUNTS": all accounts, leases, contract rights, chattel
paper, choses in action and instruments, including any lien or
other security interest that secures or may secure any of the
foregoing, plus all books, invoices, documents and other records
in any form evidencing or relating to any of the foregoing, now
owned or hereafter acquired by Dealer.
"ACCOUNTS RECEIVABLE FACILITY": a credit facility extended
pursuant to this Agreement.
"AGREEMENT FOR WHOLESALE FINANCING": any Agreement for Wholesale
Financing, as amended from time to time, which Dealer has
executed in conjunction with inventory financing extended by DFS.
"AVERAGE CONTRACT BALANCE": the amount determined by dividing:
(a) the sum of the Daily Contract Balances (as defined in Section
2.1.1) for a billing period; by, (b) the actual number of days in
such billing period.
"DEFAULT": the events or occurrences enumerated in Section 6
"ENTITY": any individual, association, firm, corporation,
partnership, limited liability company, trust, governmental body,
agency or instrumentality whatsoever.
"GUARANTOR": a guarantor of any of the Obligations.
"INVENTORY": all of Dealer's presently owned and hereafter
acquired goods which are held for sale or lease.
"OBLIGATIONS": all liabilities and indebtedness now or hereafter
arising, owing, due or payable from Dealer to DFS (and any of its
subsidiaries and affiliates), including any third party claims
against Dealer satisfied or acquired by DFS, whether primary or
secondary, joint or several, direct, contingent, fixed or
otherwise, and whether or not evidenced by instruments or
evidences of indebtedness, and all covenants, agreements
(including consent to binding arbitration), warranties, duties
and representations, whether such Obligations arise under this
Agreement, the Other Agreements or any other agreements
previously, now or hereafter executed by Dealer and delivered to
DFS or by operation of law.
"OTHER AGREEMENTS": all security agreements (including the
Agreement for
1
Wholesale Financing), mortgages, leases, instruments, documents,
guarantees, schedules, certificates, contracts and similar
agreements heretofore, now or hereafter executed by Dealer and
delivered to DFS or delivered by or on behalf of Dealer to a
third party and assigned to DFS by operation of law or otherwise.
"PRIME RATE": the rate of interest which Chase Manhattan Bank
publicly announces from time to time as its prime rate or
reference rate; provided, however, that for purposes of this
Agreement, the interest rate charged to Dealer will at no time be
computed on a Prime Rate of less than six and one-half percent
( 6.5 %) per annum. The Prime Rate will change and take effect
for purposes of this Agreement on the day that Chase Manhattan
Bank announces any change in its Prime Rate or reference rate.
2. CREDIT FACILITY/INTEREST RATES/FEES
-----------------------------------
2.1 ACCOUNTS RECEIVABLE FACILITY. Subject to the terms of this Agreement,
DFS agrees to provide to Dealer an Accounts Receivable Facility of Two
Million DOLLARS ($ 2,000,000.00 ). DFS' decision to advance funds
will not be binding until the funds are actually advanced.
2.1.1 INTEREST. Dealer agrees to pay interest to DFS on the Daily
Contract Balance at a rate equal to the Prime Rate plus zero
percent ( 0 %) per annum. Such interest will: (i) be computed
based on a 360 day year; (ii) be calculated each day by
multiplying the Daily Rate (as defined below) by the Daily
Contract Balance (as defined below); and (iii) accrue from the
date that DFS authorizes any Electronic Transfer (as defined in
Section 3.10 herein) or otherwise makes an advance under the
Accounts Receivable Facility until DFS receives the full and
final payment of the principal debt which Dealer owes to DFS,
subject to the terms of Section 3.8 herein. The "Daily Rate" is
the quotient of the applicable annual rate provided herein
divided by 360. The "Daily Contract Balance" is the amount of
the outstanding principal debt which Dealer owes to DFS on the
Accounts Receivable Facility at the end of each day (including
the amount of all Electronic Transfers authorized) after DFS has
credited the payments which it has received on the Accounts
Receivable Facility, subject to the terms of Section 3.8 herein.
2.1.2 FEES. Dealer agrees to pay to DFS an advance fee equal to zero
percent ( 0 %) on each advance to Dealer under the Accounts
Receivable Facility.
2.1.3 MAXIMUM INTEREST. Dealer acknowledges that DFS intends to
strictly conform to the applicable usury laws governing this
Agreement. Regardless of any provision contained herein or in
any other document executed or delivered in connection herewith
or therewith, DFS shall never be deemed to have contracted for,
charged or be entitled to receive, collect or apply as interest
on this Agreement (whether termed interest herein or deemed to be
interest by judicial determination or operation of law), any
amount in excess of the maximum amount allowed by applicable law,
and, if DFS ever receives, collects or applies as interest any
such excess, such amount which would be excessive interest will
be applied first to the reduction of the unpaid principal
balances of advances under this Agreement, and, second, any
remaining excess will be paid to Dealer. In determining whether
or not the interest paid or payable under any specific
contingency exceeds the highest lawful rate, Dealer and DFS
shall, to the maximum extent permitted under applicable law: (a)
characterize any non-principal payment (other than payments
2
which are expressly designated as interest payments hereunder) as
an expense or fee rather than as interest; (b) exclude voluntary
pre-payments and the effect thereof; and (c) spread the total
amount of interest throughout the entire term of this Agreement
so that the interest rate is uniform throughout such term.
2.2 PAYMENTS. DFS will send Dealer a monthly billing statement(s)
identifying all charges due on Dealer's account with DFS. The interest
and fee charges specified on each billing statement will be: (a) due
and payable in full immediately on receipt, and (b) an account stated,
unless DFS receives Dealer's written objection thereto within fifteen
(15) days after it is mailed to Dealer. If DFS does not receive, by
the 25th day of any given month, payment of all charges accrued to
Dealer's account with DFS during the immediately preceding month,
Dealer will (to the extent allowed by law) pay DFS a late fee ("Late
Fee") equal to the greater of $5 or 5% of the amount of such finance
charges (payment of the Late Fee does not waive the default caused by
the late payment). Dealer will also pay DFS $100 for each of Dealer's
checks returned unpaid for insufficient funds (an "NSF check") (such
$100 payment repays DFS' estimated administrative costs; it does not
waive the default caused by the NSF check). DFS may adjust the billing
statement at any time to conform to applicable law and this Agreement.
Dealer waives the right to direct the application of any payments
hereafter received by DFS on account of the Obligations. DFS will have
the continuing exclusive right to apply and reapply any and all such
payments in such manner as DFS may deem advisable notwithstanding any
entry by DFS upon its books and records.
2.3 ONE LOAN. DFS may combine all of DFS' advances to Dealer or on
Dealer's behalf, whether under this Agreement or any Other Agreements,
and whether provided by one or more of DFS' branch offices, together
with all finance charges, fees and expenses related thereto, to make
one debt owed by Dealer.
3. ACCOUNTS RECEIVABLE FACILITY - ADDITIONAL PROVISIONS
----------------------------------------------------
3.1 SCHEDULES. Dealer will, no less than weekly or as otherwise agreed to,
furnish DFS with a schedule of Accounts ("Schedule") which will: (a)
describe all Accounts created or acquired by Dealer since the last
Schedule furnished DFS; (b) inform DFS of any rejection of goods by any
obligor, delays in delivery of goods, non-performance of contracts and
of any assertion of any claim, offset or counterclaim by any obligor;
and (c) inform DFS of any adverse information relating to the financial
condition of any obligor.
3.2 AVAILABLE CREDIT. On receipt of each Schedule, DFS will credit Dealer
with such amount as DFS may deem advisable up to eighty-five percent
( 85 %) of the net amount of the eligible Accounts listed in such
Schedule. DFS will loan Dealer such amounts so credited or a part
thereof as requested provided that at no time will such outstanding
loans exceed Dealer's maximum Accounts Receivable Facility from time to
time established by DFS. No loans need be made by DFS if the Dealer is
in Default.
3.3 INELIGIBLE ACCOUNTS. DFS will have the sole right to determine
eligibility of Accounts and, without limiting DFS' discretion in that
regard, the following Accounts will be deemed ineligible: (a) Accounts
created from the sale of goods and services on non-standard terms
and/or that allow for payment to be made more than thirty (30) days
from the date of sale; (b) Accounts unpaid more than ninety (90) days
from date of invoice; (c) all Accounts of any obligor with fifty
percent (50%) or more of the outstanding balance unpaid for more than
ninety (90) days from the date of invoice; (d) Accounts for which the
obligor is an officer, director, shareholder, partner, member, owner,
employee, agent, parent, subsidiary,
3
affiliate of, or is related to Dealer or has common shareholders,
officers, directors, owners, partners or members; (e) consignment
sales; (f) Accounts for which the payment is or may be conditional; (g)
Accounts for which the obligor is not a commercial or institutional
entity or is not a resident of the United States or Canada; (h)
Accounts with respect to which any warranty or representation provided
in Subsection 3.4 is not true and correct; (i) Accounts which represent
goods or services purchased for a personal, family or household
purpose; (j) Accounts which represent goods used for demonstration
purposes or loaned by the Dealer to another party; (k) Accounts which
are progress payment, barter, or contra accounts; and (l) any and all
other Accounts which DFS deems to be ineligible based on reasonable
business practice. If DFS determines that any Account is or becomes an
ineligible Account, immediately upon notice thereof from DFS, Dealer
will pay to DFS an amount equal to the monies loaned by DFS for such
ineligible Account.
3.4 WARRANTIES AND REPRESENTATIONS. For each Account which Dealer lists on
any Schedule, Dealer warrants and represents to DFS that at all times:
(a) such Account is genuine; (b) such Account is not evidenced by a
judgment or promissory note or similar instrument or agreement; (c) it
represents an undisputed bona fide transaction completed in accordance
with the terms of the invoices and purchase orders relating thereto;
(d) the goods sold or services rendered which resulted in the creation
of such Account have been delivered or rendered to and accepted by the
obligor; (e) the amounts shown on the Schedules, Dealer's books and
records and all invoices and statements delivered to DFS with respect
thereto are owing to Dealer and are not contingent; (f) no payments
have been or will be made thereon except payments turned over to DFS;
(g) there are no offsets, counterclaims or disputes existing or
asserted with respect thereto and Dealer has not made any agreement
with any obligor for any deduction or discount of the sum payable
thereunder except regular discounts allowed by Dealer in the ordinary
course of its business for prompt payment; (h) there are no facts or
events which in any way impair the validity or enforceability thereof
or reduce the amount payable thereunder from the amount shown on the
Schedules, Dealer's books and records and the invoices and statements
delivered to DFS with respect thereto; (i) all persons acting on behalf
of obligors thereon have the authority to bind the obligor; (j) the
goods sold or transferred giving rise thereto are not subject to any
lien, claim, encumbrance or security interest which is superior to that
of DFS; and (k) there are no proceedings or actions known to Dealer
which are threatened or pending against any obligor thereon which might
result in any material adverse change in such obligor's financial
condition.
3.5 NOTES. Loans made pursuant to this Agreement need not be evidenced by
promissory notes unless otherwise required by DFS in DFS' sole
discretion.
3.6 CERTAIN CHARGES. Dealer will: (a) reimburse DFS for all charges made
by banks, including charges for collection of checks and other items of
payment, and (b) pay DFS' fees for transfers of funds to or from the
Dealer. DFS may, from time to time, announce its fees for transfers of
funds to or from the Dealer, including the issuance of Electronic
Transfers.
3.7 COLLECTIONS. Unless otherwise directed by DFS, to expedite collection
of Accounts for the benefit of DFS, Dealer shall notify all of its
obligors to make payment of the Accounts to one or more lock-boxes
under the sole control of DFS. The lock-box, and all accounts into
which the proceeds of any such lock-box(es) are deposited, shall be
established at banks selected by the Dealer and satisfactory to DFS in
its sole discretion. Dealer shall issue to any such banks an
irrevocable letter of instruction, in form and substance acceptable to
DFS, directing such banks to deposit all payments or other remittances
received in the
4
lock-box to such account or accounts as DFS shall direct, for
application against the outstanding balance of the Obligations. All
funds deposited in the lock-box or any such account immediately shall
become the property of DFS, and any disbursements of the proceeds in
the lock-box or any such account will only be made to DFS. Dealer
shall obtain the agreement of such banks to waive any offset rights
against the funds so deposited. DFS assumes no responsibility for such
lock-box arrangement, including, without limitation, any claim of
accord and satisfaction or release with respect to deposits which any
banks accept thereunder. All remittances which Dealer receives in
payment of any Accounts, and the proceeds of any of the other
Collateral, shall be: (i) kept separate and apart from Dealer's own
funds so that they are capable of identification as DFS' property; (ii)
held by Dealer as trustee of an express trust for DFS' benefit; and
(iii) shall be immediately deposited in such accounts designated by
DFS. All proceeds received or collected by DFS with respect to
Accounts, and reserves and other property of Dealer in possession of
DFS at any time or times hereafter, may be held by DFS without interest
to Dealer until all Obligations are paid in full or applied by DFS on
account of the Obligations. DFS may release to Dealer such portions of
such reserves and proceeds as DFS may determine. Upon the occurrence
and during the continuance of a Default, DFS may notify the obligors
that the Accounts have been assigned to DFS, collect the Accounts
directly in its own name and charge the collection costs and expenses,
including attorneys' fees, to Dealer. DFS has no duty to protect,
insure, collect or realize upon the Accounts to preserve rights in
them.
3.8 COLLECTION DAYS. All payments and all amounts received on any Account
will be credited by DFS to Dealer's account (subject to final
collection thereof) after allowing two (2) business days for collection
of checks or other instruments.
3.9 POWER OF ATTORNEY. Dealer irrevocably appoints DFS (and any person
designated by it) as Dealer's true and lawful Attorney with full power
to at any time, in the discretion of DFS (whether or not Default has
occurred) to: (a) endorse the name of Dealer upon any of the items of
payment or proceeds and deposit the same in the account of DFS for
application to the Obligations; (b) sign the name of Dealer to verify
the accuracy of the Accounts; (c) sign the name of Dealer on any
document or instrument that DFS shall deem necessary or appropriate to
perfect and maintain perfected the security interests in the Collateral
under this Agreement and the Other Agreements; and (d) initiate and
settle any insurance claim and endorse Dealer's name on any check,
instrument or other item of payment. In the event of a Default, Dealer
irrevocably appoints DFS (and any person designated by it) as Dealer's
true and lawful Attorney with full power to at any time, in the
discretion of DFS to: (i) demand payment, enforce payment and otherwise
exercise all of Dealer's rights, and remedies with respect to the
collection of any Accounts; (ii) settle, adjust, compromise, extend or
renew any Accounts; (iii) settle, adjust or compromise any legal
proceedings brought to collect any Accounts; (iv) sell or assign any
Accounts upon such terms, for such amounts and at such time or times as
DFS may deem advisable; (v) discharge and release any Accounts; (vi)
prepare, file and sign Dealer's name on any Proof of Claim in
Bankruptcy or similar document against any obligor; (vii) endorse the
name of Dealer upon any chattel paper, document, instrument, invoice,
freight bill, bill of lading or similar document or agreement relating
to any Account or goods pertaining thereto; and (viii) take control in
any manner of any item of payments or proceeds and for such purpose to
notify the Postal Authorities to change the address for delivery of
mail addressed to Dealer to such address as DFS may designate. The
power of attorney is for value and coupled with
5
an interest and is irrevocable so long as any Obligations remain
outstanding and by DFS exercising such right, DFS shall not waive any
right against Dealer until the Obligations are paid in full.
3.10CONTINUING REQUIREMENTS. Advances hereunder will be made by DFS, at
Dealer's direction, by paper check, electronic transfer by Automated
Clearing House ("ACH"), Fed Wire Funds Transfer ("Fed Wire") or such
other electronic means as DFS may announce from time to time (ACH, Fed
Wire and such other electronic transfer are collectively referred to as
"Electronic Transfers"). If Dealer does not request advances be made
in a specific method of transfer, DFS may determine from time to time
in its sole discretion what method of transfer to use. Dealer will:
(a) if from time to time required by DFS, immediately upon their
creation, deliver to DFS copies of all invoices, delivery evidences and
other such documents relating to each Account; (b) not permit or agree
to any extension, compromise or settlement or make any change to any
Account; (c) affix appropriate endorsements or assignments upon all
such items of payment and proceeds so that the same may be properly
deposited by DFS to DFS' account; (d) immediately notify DFS in writing
which Accounts may be deemed ineligible as defined in Subsection 3.3;
(e) mark all chattel paper and instruments now owned or hereafter
acquired by it to show that the same are subject to DFS' security
interest and immediately thereafter deliver such chattel paper and
instruments to DFS with appropriate endorsements and assignments to
DFS; (f) within ten (10) days after the end of each month, provide DFS
with a detailed aging of its Accounts for each month, together with the
names and addresses of all obligors.
3.11RELEASE. Dealer releases DFS from all claims and causes of action
which Dealer may now or hereafter have for any loss or damage to it
claimed to be caused by or arising from: (a) any failure of DFS to
protect, enforce or collect, in whole or in part, any Account; (b) DFS'
notification to any obligors thereon of DFS' security interest in any
of the Accounts; (c) DFS' directing any obligor to pay any sum owing to
Dealer directly to DFS; and (d) any other act or omission to act on the
part of DFS, its officers, agents or employees, except for gross
negligence or willful misconduct. DFS will have no obligation to
preserve rights to Accounts against prior parties. Dealer waives all
rights of offset and counterclaims Dealer may have against DFS.
3.12REVIEW. Dealer grants DFS an irrevocable license to enter Dealer's
business locations during normal business hours without notice to
Dealer to: (a) account for and inspect all Collateral; (b) verify
Dealer's compliance with this Agreement; and (c) review, examine, and
make copies of Dealer's books, records, files and business procedures
and practices. Dealer further agrees to pay DFS a review fee of zero
DOLLARS ($ 0 ) for any such review, inspection or examination made by
DFS. DFS may, without notice to Dealer and at any time or times
hereafter, verify the validity, amount or any other matter relating to
any Account by mail, telephone, or other means, in the name of Dealer
or DFS.
4. SECURITY - COLLATERAL
---------------------
4.1 GRANT OF SECURITY INTEREST. To secure payment of all of Dealer's
current and future Obligations and to secure Dealer's performance of
all of the provisions under this Agreement and the Other Agreements,
Dealer grants DFS a security interest in all of Dealer's inventory,
equipment, fixtures, accounts, contract rights, chattel paper, security
agreements, instruments, deposit accounts, reserves, documents, and
general intangibles; and all judgments, claims, insurance policies, and
payments owed or made to Dealer
6
thereon; all whether now owned or hereafter acquired, all attachments,
accessories, accessions, returns, repossessions, exchanges,
substitutions and replacements thereto, and all proceeds thereof.
Dealer has secured certain previous debt with certain items of
collateral which DFS acknowledges other creditors have a first lien
therein, as described in Exhibit A, attached hereto. All such assets
are collectively referred to herein as the "Collateral." All of such
terms for which meanings are provided in the Uniform Commercial Code of
the applicable state are used herein with such meanings. Dealer
covenants with DFS that DFS may realize upon all or part of any
Collateral in any order it desires and any realization by any means
upon any Collateral will not bar realization upon any other collateral.
Dealer's liability under this Agreement is direct and unconditional and
will not be affected by the release or nonperfection of any security
interest granted hereunder. All Collateral financed by DFS, and all
proceeds thereof, will be held in trust by Dealer for DFS, with such
proceeds being payable in accordance with this Agreement.
5. WARRANTIES AND REPRESENTATIONS
------------------------------
5.1 AFFIRMATIVE WARRANTIES AND REPRESENTATIONS. Except as otherwise
specifically provided in the Other Agreements, Dealer warrants and
represents to DFS that: (a) Dealer has good title to all Collateral;
(b) DFS' security interest in the Accounts will at all times constitute
a perfected, first security interest in such Accounts and will not
become subordinate to the security interest, lien, encumbrance or claim
of any Entity; (c) Dealer will execute all documents DFS requests to
perfect and maintain DFS' security interest in the Collateral and to
fully consummate the transactions contemplated under this Agreement and
the Other Agreements; (d) Dealer will at all times be duly organized,
existing, in good standing, qualified and licensed to do business in
each state, county, or parish, in which the nature of its business or
property so requires; (e) Dealer has the right and is duly authorized
to enter into this Agreement; (f) Dealer's execution of this Agreement
does not constitute a breach of any agreement to which Dealer is now or
hereafter becomes bound; (g) there are and will be no actions or
proceedings pending or threatened against Dealer which might result in
any material adverse change in Dealer's financial or business condition
or which might in any way adversely affect any of Dealer's assets; (h)
Dealer will maintain the Collateral in good condition and repair; (i)
Dealer has duly filed and will duly file all tax returns required by
law; (j) Dealer has paid and will pay when due all taxes, levies,
assessments and governmental charges of any nature; (k) Dealer will
maintain a system of accounting in accordance with generally accepted
accounting principles and account records which contain such
information in a format as may be reasonably requested by DFS; DFS
acknowledges that Dealer's current system of accounting records is
acceptable to DFS; (l) Dealer will keep and maintain all of its books
and records pertaining to the Accounts at its principal place of
business designated in this Agreement; (m) Dealer will promptly supply
DFS with such information concerning it or any Guarantor as DFS
hereafter may reasonably request; (n) Dealer will give DFS thirty (30)
days prior written notice of any change in Dealer's identity, name,
form of business organization, ownership, principal place of business,
Collateral locations or other business locations; and before moving any
books and records to any other location; (o) Dealer will observe and
perform all matters required by any lease, license, concession or
franchise forming part of the Collateral in order to maintain all the
rights of DFS thereunder; (p) Dealer will advise DFS of the
commencement of material legal proceedings against Dealer or any
Guarantor; (q) Dealer will comply with all applicable laws and will
conduct its business in a manner which preserves and protects
7
the Collateral and the earnings and incomes thereof; and (r) Dealer
will keep the Collateral insured for its full insurable value under an
"all risk" property insurance policy with a company acceptable to DFS,
naming DFS as a lender loss-payee and containing standard lender's loss
payable and termination provisions. Dealer will provide DFS with
written evidence of such property insurance coverage and lender's loss-
payee endorsement.
5.2 NEGATIVE COVENANTS. Dealer will not at any time (without DFS' prior
written consent): (a) grant to or in favor of any Entity a security
interest in or permit to exist a lien, claim or encumbrance in the
Accounts which is superior to the interest of DFS; (b) other than in
the ordinary course of its business, sell, lease or otherwise dispose
of or transfer any of its assets; (c) merge or consolidate with another
Entity; (d) acquire the assets or ownership interest of any other
Entity; (e) enter into any transaction not in the ordinary course of
business; (f) guarantee or indemnify or otherwise become in any way
liable with respect to the obligations of any Entity, except by
endorsement of instruments or items of payment for deposit to the
general account of Dealer or which are transmitted or turned over to
DFS on account of the Obligations; (g) redeem, retire, purchase or
otherwise acquire, directly or indirectly, any of Dealer's capital
stock; (h) make any change in Dealer's capital structure or in any of
its business objectives or operations which might in any way adversely
affect the ability of Dealer to repay the Obligations; (i) make any
distribution of Dealer's assets not in the ordinary course of business;
(j) incur any debts outside of the ordinary course of business except
renewals or extensions of existing debts and interest thereon; and (k)
make any loans, advances, contributions or payments of money or in
goods to any affiliated entity or to any officer, director,
stockholder, member or partner of Dealer or of any such entity (except
for compensation for personal services actually rendered and for the
repayment of the previous shareholders' note and tax consequences
thereof).
5.3 FINANCIAL STATEMENTS. Dealer will deliver to DFS: (a) within ninety
(90) days after the end of each of Dealer's fiscal years, a reasonably
detailed balance sheet as of the last day of such fiscal year and a
reasonably detailed income statement covering Dealer's operations for
such fiscal year, in a form satisfactory to DFS; (b) within forty-five
(45) days after the end of each of Dealer's fiscal quarters, a
reasonably detailed balance sheet as of the last day of such quarter
and an income statement covering Dealer's operations for such quarter
in a form satisfactory to DFS; (c) within ten (10) days after request
therefor by DFS, any other report reasonably requested by DFS relating
to the Collateral or the financial condition of Dealer. Dealer
warrants and represents to DFS that all financial statements and
information relating to Dealer or any Guarantor which have been or may
hereafter be delivered by Dealer or any Guarantor to DFS are true and
correct and have been and will be prepared in accordance with generally
accepted accounting principles consistently applied and, with respect
to such previously delivered statements or information, there has been
no material adverse change in the financial or business condition of
Dealer or any Guarantor since the submission to DFS, either as of the
date of delivery, or, if different, the date specified therein, and
Dealer acknowledges DFS' reliance thereon.
6. DEFAULT
-------
6.1 DEFINITION. Dealer will be in default under this Agreement if: (a)
Dealer breaches any terms, warranties or representations contained
herein or in any Other Agreements; (b) Tyrex Oil Company ("Guarantor")
breaches any terms, warranties or representations contained in any
guaranty or Other Agreements; (c) any representation, statement,
report, or certificate made or delivered by Dealer or Guarantor to DFS
is not accurate when made;
8
(d) Dealer fails to pay any of the Obligations when due and payable;
(e) Dealer abandons any Collateral; (f) Dealer or Guarantor is or
becomes in default in the payment of any debt owed to any third party;
(g) a money judgment issues against Dealer or Guarantor (dealer will
have the right to post a bond, and enter into a defense of such); (h)
an attachment, sale or seizure issues or is executed against any assets
of Dealer or Guarantor (dealer will have the right to post a bond, and
enter into a defense of such); (i) the undersigned dies while Dealer's
business is operated as a sole proprietorship, any general partner dies
while Dealer's business is operated as a general or limited
partnership, or any member dies while Dealer's business is operated as
a limited liability company, as applicable; (j) Dealer or Guarantor
shall cease existence as a corporation, partnership, limited liability
company or trust, as applicable; (k) Dealer or Guarantor ceases or
suspends business; (l) Dealer, Guarantor or any member while Dealer's
business is operated as a limited liability company, as applicable,
makes a general assignment for the benefit of creditors; (m) Dealer,
Guarantor or any member while Dealer's business is operated as a
limited liability company, as applicable, becomes insolvent or
voluntarily or involuntarily becomes subject to the Federal Bankruptcy
Code, any state insolvency law or any similar law; (n) any receiver is
appointed for any assets of Dealer, Guarantor or any member while
Dealer's business is operated as a limited liability company, as
applicable; (o) any guaranty of Dealer's debt to DFS is terminated; (p)
Dealer loses any franchise, permission, license or right to sell or
deal in any Collateral which DFS finances; (q) Dealer or Guarantor
misrepresents Dealer's or such Guarantor's financial condition or
organizational structure.
6.2 RIGHTS OF DFS. In the event of a Default:
(a) DFS may at any time at DFS' election, without notice or demand to
Dealer, do any one or more of the following: declare all or any
of the Obligations immediately due and payable, together with all
costs and expenses of DFS' collection activity, including,
without limitation, all reasonable attorneys' fees; exercise any
or all rights under applicable law (including, without
limitation, the right to possess, transfer and dispose of the
Collateral); and/or cease extending any additional credit to
Dealer (DFS' right to cease extending credit shall not be
construed to limit the discretionary nature of this credit
facility).
(b) Dealer will segregate and keep the Collateral in trust for DFS,
and in good order and repair, and will not sell, rent, lease,
consign, otherwise dispose of or use any Collateral, nor further
encumber any Collateral.
(c) Upon DFS' oral or written demand, Dealer will immediately deliver
the Collateral to DFS subject to any prior encumbrance as
reflected on Exhibit A attached hereto, in good order and repair,
at a place specified by DFS, together with all related documents;
or DFS may, in DFS' sole discretion and without notice or demand
to Dealer, take immediate possession of the Collateral together
with all related documents.
(d) DFS may, without notice, apply a default finance charge to
Dealer's outstanding principal indebtedness equal to the default
rate specified in Dealer's financing program with DFS, if any, or
if there is none so specified, at the lesser of 3% per annum
above the rate in effect immediately prior to the Default, or the
highest lawful contract rate of interest permitted under
applicable law.
(e) DFS may, without notice to Dealer and at any time or times
enforce payment and collect, by legal proceedings or otherwise,
Accounts in the name of Dealer or DFS; and take control of any
cash or non-cash items of payment or proceeds of
9
Accounts and of any rejected, returned, repossessed or stopped in
transit goods relating to Accounts. DFS may at its sole election
and without demand enter, with or without process of law, any
premises where Collateral might be and, without charge or
liability to DFS therefor do one or more of the following: (i)
take possession of the Collateral and use or store it in said
premises or remove it to such other place or places as DFS may
deem convenient; (ii) take possession of all or part of such
premises and the Collateral and place a custodian in the
exclusive control thereof until completion of enforcement of DFS'
security interest in the Collateral or until DFS' removal of the
Collateral and, (iii) remain on such premises and use the same,
together with Dealer's materials, supplies, books and records,
for the purpose of performing all acts necessary and incidental
to the collection or liquidation of such Collateral.
All of DFS' rights and remedies are cumulative. DFS' failure to
exercise any of DFS' rights or remedies hereunder will not waive
any of DFS' rights or remedies as to any past, current or future
Default.
6.3 SALE OF COLLATERAL. Dealer agrees that if DFS conducts a private sale
of any Collateral by requesting bids from 10 or more dealers or
distributors in that type of Collateral, any sale by DFS of such
Collateral in bulk or in parcels within 120 days of: (a) DFS' taking
possession and control of such Collateral; or (b) when DFS is otherwise
authorized to sell such Collateral; whichever occurs last, to the
bidder submitting the highest cash bid therefor, is a commercially
reasonable sale of such Collateral under the Uniform Commercial Code.
Dealer agrees that the purchase of any Collateral by a vendor, as
provided in any agreement between DFS and the vendor, is a commercially
reasonable disposition and private sale of such Collateral under the
Uniform Commercial Code, and no request for bids shall be required.
Dealer further agrees that 7 or more days prior written notice will be
commercially reasonable notice of any public or private sale (including
any sale to a vendor). Dealer irrevocably waives any requirement that
DFS retain possession and not dispose of any Collateral until after an
arbitration hearing, arbitration award, confirmation, trial or final
judgment. If DFS disposes of any such Collateral other than as herein
contemplated, the commercial reasonableness of such disposition will be
determined in accordance with the laws of the state governing this
Agreement.
7. MISCELLANEOUS
-------------
7.1 TERMINATION. This Agreement will continue in full force and effect and
be non-cancellable by Dealer (except that it may be terminated by DFS
upon sixty (60) days written notice to Dealer or in the exercise of its
rights and remedies upon Default by Dealer) for a period of one (1)
year from the first day of the first month following the date hereof
and for successive one (1) year periods thereafter, subject to
termination as to future transactions at the end of any such period on
at least sixty (60) days prior written notice by Dealer to DFS. If
such notice of termination is given by Dealer to DFS, such notice will
be ineffective unless Dealer pays to DFS all Obligations on or before
the termination date. Any termination of this Agreement by Dealer or
DFS will have the effect of accelerating the maturity of all
Obligations not then otherwise due.
7.1.1 TERMINATION PRIVILEGE. Despite anything to the contrary in
Section 7.1 of this Agreement, this Agreement may be terminated
by Dealer at any time upon sixty (60) days prior written notice
and payment to DFS of the following sum (in
10
addition to payment of all Obligations, whether or not by their
terms then due) which sum represents liquidated damages for the
loss of the bargain and not as a penalty, and the same is hereby
acknowledged by Dealer: (1) the product of (a) one half of one
percent (.50%) multiplied by (b) the highest Average Contract
Balance for the last 12 months (or entire term of this Agreement
if less than 12 months) prior to the effective date of
termination. This sum will also be paid by Dealer if the
Agreement is terminated on account of Dealer's Default.
7.1.2 EFFECT OF TERMINATION. Dealer will not be relieved from any
Obligations to DFS arising out of DFS' advances or commitments
made before the effective termination date of this Agreement.
DFS will retain all of its rights, interests and remedies
hereunder until Dealer has paid all of Dealer's Obligations to
DFS. All waivers set forth within this Agreement will survive
any termination of this Agreement.
7.2 COLLECTION. Checks and other instruments delivered to DFS on account
of the Obligations will constitute conditional payment until such items
are actually paid to DFS.
7.3 DEMAND, ETC. Dealer irrevocably waives notice of: DFS' acceptance of
this Agreement, presentment, demand, protest, nonpayment,
nonperformance, and dishonor. Dealer and DFS irrevocably waive all
rights to claim any punitive and/or exemplary damages. Dealer waives
all notices of default and non-payment at maturity of any or all of the
Accounts.
7.4 REIMBURSEMENT. Dealer will assume and reimburse DFS upon demand for
all reasonable expenses incurred by DFS in connection with the
preparation of this Agreement and the Other Agreements (including fees
and costs of outside counsel) and all filing and recording fees and
taxes payable in connection with the filing or recording of all
documents under this Agreement and the Other Agreements; provided,
however, that such reimbursement by Dealer hereunder will not exceed
the sum of ONE THOUSAND DOLLARS ($1,000.00).
7.5 ADDITIONAL OBLIGATIONS. DFS, without waiving or releasing any
Obligation or Default, may perform any Obligations that Dealer fails or
refuses to perform. All sums paid by DFS on account of the foregoing
and any expenses, including reasonable attorneys' fees, will be a part
of the Obligations, payable on demand and secured by the Collateral.
7.6 NO ORAL AGREEMENTS. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBTS ARE NOT ENFORCEABLE.
TO PROTECT DEALER AND DFS FROM MISUNDERSTANDING OR DISAPPOINTMENT, ALL
AGREEMENTS COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING AND THE
OTHER AGREEMENTS, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN THE PARTIES, EXCEPT AS SPECIFICALLY PROVIDED HEREIN
OR AS THE PARTIES MAY LATER AGREE IN WRITING TO MODIFY IT. THERE ARE
NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES. DFS may, from time to
time, announce in writing to Dealer its policies and procedures
regarding its administration of this facility, including, without
limitation, DFS' fees for the transfer of funds to or from Dealer,
including Electronic Transfers; any subsequent use by Dealer of this
facility following any such announcement shall constitute Dealer's
acceptance of such revised policies and procedures. If DFS announces
new policies and procedures which Dealer does not accept, Dealer may
terminate Agreement upon sixty (60) days notice without paying
liquidated damages. Time is of the essence regarding Dealer's
performance of its obligations to DFS
11
notwithstanding any course of dealing or custom on DFS' part to grant
extensions of time. DFS will have the right to refrain from or
postpone enforcement of this Agreement or any Other Agreements between
DFS and Dealer without prejudice and the failure to strictly enforce
these agreements will not be construed as having created a course of
dealing between DFS and Dealer contrary to the specific terms of the
agreements or as having modified, released or waived the same. The
express terms of this Agreement will not be modified by any course of
dealing, usage of trade, or custom of trade which may deviate from the
terms hereof.
7.7 SEVERABILITY. If any provision of this Agreement or the Other
Agreements or the application thereof is held invalid or unenforceable,
the remainder of this Agreement and the Other Agreements will not be
impaired or affected and will remain binding and enforceable.
7.8 SUPPLEMENT. If Dealer and DFS have heretofore executed Other
Agreements in connection with all or any part of the Collateral, this
Agreement shall supplement each and every Other Agreement previously
executed by and between Dealer and DFS, and in that event this
Agreement shall neither be deemed a novation nor a termination of any
such previously executed Other Agreement nor shall execution of this
Agreement be deemed a satisfaction of any obligation secured by such
previously executed Other Agreement. In the event of any conflict
between the terms of this Agreement and any previously executed
Business Financing Agreement between DFS and Dealer, the terms of this
Agreement shall control.
7.9 SECTION TITLES. The Section titles used in this Agreement are for
convenience only and do not define or limit the contents of any
Section.
7.10BINDING EFFECT. Dealer cannot assign its interest in this Agreement or
any Other Agreements without DFS' prior written consent, and if
withheld, Dealer will not be required to pay liquidated damages,
although DFS may assign or participate DFS' interest, in whole or in
part, without Dealer's consent. This Agreement and the Other
Agreements will protect and bind DFS' and Dealer's respective heirs,
representatives, successors and assigns.
7.11NOTICES. Except as otherwise stated herein, all notices, arbitration
claims, responses, requests and documents will be sufficiently given or
served if mailed or delivered: (a) to Dealer at Dealer's principal
place of business specified above; and (b) to DFS at 655 Maryville
Centre Drive, St. Louis, Missouri 63141-5832, Attention: General
Counsel, or such other address as the parties may hereafter specify in
writing.
7.12RECEIPT OF AGREEMENT. Dealer acknowledges that it has received a true
and complete copy of this Agreement. Dealer acknowledges that it has
read and understood this Agreement. Notwithstanding anything herein to
the contrary: (a) DFS may rely on any facsimile copy, electronic data
transmission or electronic data storage of any Schedule, statement,
financial statements or other reports, and (b) such facsimile copy,
electronic data transmission or electronic data storage will be deemed
an original, and the best evidence thereof for all purposes, including,
without limitation, under this Agreement or any Other Agreements, and
for all evidentiary purposes before any arbitrator, court or other
adjudicatory authority.
7.13INFORMATION. DFS may provide to any third party any credit, financial
or other information on Dealer that DFS may from time to time possess.
DFS may obtain from any third party any credit, financial or other
information regarding Dealer that such third party may from time to
time possess.
12
8. BINDING ARBITRATION
-------------------
8.1 ARBITRABLE CLAIMS. Except as otherwise specified below, all actions,
disputes, claims and controversies under common law, statutory law or
in equity of any type or nature whatsoever (including, without
limitation, all torts, whether regarding negligence, breach of
fiduciary duty, restraint of trade, fraud, conversion, duress,
interference, wrongful replevin, wrongful sequestration, fraud in the
inducement, usury or any other tort, all contract actions, whether
regarding express or implied terms, such as implied covenants of good
faith, fair dealing, and the commercial reasonableness of any
Collateral disposition, or any other contract claim, all claims of
deceptive trade practices or lender liability, and all claims
questioning the reasonableness or lawfulness of any act), whether
arising before or after the date of this Agreement, and whether
directly or indirectly relating to: (a) this Agreement or any Other
Agreements and/or any amendments and addenda hereto or thereto, or the
breach, invalidity or termination hereof or thereof; (b) any previous
or subsequent agreement between DFS and Dealer; (c) any act committed
by DFS or by any parent company, subsidiary or affiliated company of
DFS (the "DFS Companies"), or by any employee, agent, officer or
director of an DFS Company whether or not arising within the scope and
course of employment or other contractual representation of the DFS
Companies provided that such act arises under a relationship,
transaction or dealing between DFS and Dealer; and/or (d) any other
relationship, transaction or dealing between DFS and Dealer
(collectively the "Disputes"), will be subject to and resolved by
binding arbitration.
8.2 ADMINISTRATIVE BODY. All arbitration hereunder will be conducted in
accordance with the Commercial Arbitration Rules of The American
Arbitration Association ("AAA"). If the AAA is dissolved, disbanded or
becomes subject to any state or federal bankruptcy or insolvency
proceeding, the parties will remain subject to binding arbitration
which will be conducted by a mutually agreeable arbitral forum. The
parties agree that all arbitrator(s) selected will be attorneys with at
least five (5) years secured transactions experience. The
arbitrator(s) will decide if any inconsistency exists between the rules
of any applicable arbitral forum and the arbitration provisions
contained herein. If such inconsistency exists, the arbitration
provisions contained herein will control and supersede such rules. The
site of all arbitration proceedings will be in the Division of the
Federal Judicial District in which AAA maintains a regional office that
is closest to Dealer.
8.3 DISCOVERY. Discovery permitted in any arbitration proceeding commenced
hereunder is limited as follows. No later than thirty (30) days after
the filing of a claim for arbitration, the parties will exchange
detailed statements setting forth the facts supporting the claim(s) and
all defenses to be raised during the arbitration, and a list of all
exhibits and witnesses. No later than twenty-one (21) days prior to
the arbitration hearing, the parties will exchange a final list of all
exhibits and all witnesses, including any designation of any expert
witness(es) together with a summary of their testimony; a copy of all
documents and a detailed description of any property to be introduced
at the hearing. Under no circumstances will the use of
interrogatories, requests for admission, requests for the production of
documents or the taking of depositions be permitted. However, in the
event of the designation of any expert witness(es), the following will
occur: (a) all information and documents relied upon by the expert
witness(es) will be delivered to the opposing party, (b) the opposing
party will be permitted to depose the expert witness(es), (c) the
opposing party will be permitted to designate rebuttal expert
witness(es), and (d) the arbitration hearing will be continued to the
earliest possible date that enables the foregoing limited discovery to
be accomplished.
13
8.4 EXEMPLARY OR PUNITIVE DAMAGES. The Arbitrator(s) will not have the
authority to award exemplary or punitive damages.
8.5 CONFIDENTIALITY OF AWARDS. All arbitration proceedings, including
testimony or evidence at hearings, will be kept confidential, although
any award or order rendered by the arbitrator(s) pursuant to the terms
of this Agreement may be entered as a judgment or order in any state or
federal court and may be confirmed within the federal judicial district
which includes the residence of the party against whom such award or
order was entered. This Agreement concerns transactions involving
commerce among the several states. The Federal Arbitration Act, Title
9 U.S.C. Sections 1 et seq., as amended ("FAA") will govern all
arbitration(s) and confirmation proceedings hereunder.
8.6 PREJUDGMENT AND PROVISIONAL REMEDIES. Nothing herein will be construed
to prevent DFS' or Dealer's use of bankruptcy, receivership,
injunction, repossession, replevin, claim and delivery, sequestration,
seizure, attachment, foreclosure, dation and/or any other prejudgment
or provisional
action or remedy relating to any Collateral for any current or future
debt owed by either party to the other. Any such action or remedy will
not waive DFS' or Dealer's right to compel arbitration of any Dispute.
8.7 ATTORNEYS' FEES. If either Dealer or DFS brings any other action for
judicial relief with respect to any Dispute (other than those set forth
in Section 8.6), the party bringing such action will be liable for and
immediately pay all of the other party's costs and expenses (including
attorneys' fees) incurred to stay or dismiss such action and remove or
refer such Dispute to arbitration. If either Dealer or DFS brings or
appeals an action to vacate or modify an arbitration award and such
party does not prevail, such party will pay all costs and expenses,
including attorneys' fees, incurred by the other party in defending
such action. Additionally, if Dealer sues DFS or institutes any
arbitration claim or counterclaim against DFS in which DFS is the
prevailing party, Dealer will pay all costs and expenses (including
attorneys' fees) incurred by DFS in the course of defending such action
or proceeding.
8.8 LIMITATIONS. Any arbitration proceeding must be instituted: (a) with
respect to any Dispute for the collection of any debt owed by either
party to the other, within two (2) years after the date the last
payment was received by the instituting party; and (b) with respect to
any other Dispute, within two (2) years after the date the incident
giving rise thereto occurred, whether or not any damage was sustained
or capable of ascertainment or either party knew of such incident.
Failure to institute an arbitration proceeding within such period will
constitute an absolute bar and waiver to the institution of any
proceeding, whether arbitration or a court proceeding, with respect to
such Dispute.
8.9 SURVIVAL AFTER TERMINATION. The agreement to arbitrate will survive
the termination of this Agreement.
9. INVALIDITY/UNENFORCEABILITY OF BINDING ARBITRATION. IF THIS AGREEMENT IS
FOUND TO BE NOT SUBJECT TO ARBITRATION, ANY LEGAL PROCEEDING WITH RESPECT
TO ANY DISPUTE WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A
JUDGE WITHOUT A JURY. DEALER AND DFS WAIVE ANY RIGHT TO A JURY TRIAL IN
ANY SUCH PROCEEDING.
14
10. GOVERNING LAW. Dealer acknowledges and agrees that this and all Other
Agreements between Dealer and DFS have been substantially negotiated, and
will be substantially performed, in the state of ARIZONA . Accordingly,
Dealer agrees that all Disputes will be governed by, and construed in
accordance with, the laws of such state, except to the extent inconsistent
with the provisions of the FAA which shall control and govern all
arbitration proceedings hereunder.
15
IN WITNESS WHEREOF, Dealer and DFS have executed this Agreement as of the
date first set forth hereinabove.
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE
WAIVER PROVISIONS.
DEUTSCHE FINANCIAL SERVICES CORPORATION Kimbrough Computer Sales, Inc.
----------------------------------
Dealer's Name
By: /s/ James M. Wardle By: /s/ Frederick J. Slack
------------------------ ---------------------------
Print Name: James M. Wardle Print Name: Frederick J. Slack
------------------- ----------------------
Title: Regional Credit Manager Title: CEO
--------------------------- ---------------------
By:
Print Name:
Title:
ATTEST:
/s/ Felipe L. Valdez
-------------------------------------------
(Assistant) Secretary
Print Name: Felipe L. Valdez
-------------------------------
16
SECRETARY'S CERTIFICATE OF RESOLUTION
I certify that I am the Secretary or Assistant Secretary of the corporation
named below, and that the following completely and accurately sets forth certain
resolutions of the Board of Directors of the corporation adopted at a special
meeting thereof held on due notice (and with shareholder approval, if required
by law), at which meeting there was present a quorum authorized to transact the
business described below, and that the proceedings of the meeting were in
accordance with the certificate of incorporation, charter and by-laws of the
corporation, and that they have not been revoked, annulled or amended in any
manner whatsoever.
Upon motion duly made and seconded, the following resolution was
unanimously adopted after full discussion:
"RESOLVED, That the several officers, directors, and agents of this
corporation, or any one or more of them, are hereby authorized and empowered on
behalf of this corporation: to obtain financing from Deutsche Financial
Services Corporation ("DFS") in such amounts and on such terms as such officers,
directors or agents deem proper; to enter into financing, security, pledge and
other agreements with DFS relating to the terms upon which such financing may be
obtained and security and/or other credit support is to be furnished by this
corporation therefor; from time to time to supplement or amend any such
agreements; execute and deliver any and all assignments and schedules; and from
time to time to pledge, assign, mortgage, grant security interests, and
otherwise transfer, to DFS as collateral security for any obligations of this
corporation to DFS, whenever and however arising, any assets of this
corporation, whether now owned or hereafter acquired; the Board of Directors
hereby ratifying, approving and confirming all that any of said officers,
directors or agents have done or may do with respect to the foregoing."
I do further certify that the following are the names and specimen
signatures of the officers and agents of said corporation so empowered and
authorized, namely:
President:
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(Print Name) (Signature)
Vice-President: Frederick J. Slack /s/ Frederick J. Slack
------------------------------- ----------------------------
(Print Name) (Signature)
Secretary: Felipe L. Valdez /s/ Felipe L. Valdez
------------------------------- --------------------------
(Print Name) (Signature)
Treasurer: Felipe L. Valdez /s/ Felipe L. Valdez
------------------------------- --------------------------
(Print Name) (Signature)
Agent: Felipe L. Valdez /s/ Felipe L. Valdez
------------------------------- --------------------------
(Print Name) (Signature)
IN WITNESS WHEREOF, I have executed and affixed the seal of the corporation
on the date stated below.
Dated: September 30 , 19 97 /s/ Felipe L. Valdez
------------------- ----- ------------------------------------
(Assistant) Secretary
Kimbrough Computer Sales, Inc.
----------------------------------
(SEAL) Corporate Name
17
Exhibit 97.10.2
AGREEMENT FOR WHOLESALE FINANCING
This Agreement for Wholesale Financing ("Agreement") is made as of September 30,
1997 between DEUTSCHE FINANCIAL SERVICES CORPORATION ("DFS") and Kimbrough
Computer Sales, Inc., a | | SOLE PROPRIETORSHIP, | | PARTNERSHIP, | XX |
CORPORATION, | | LIMITED LIABILITY COMPANY (check applicable term) ("Dealer"),
having a principal place of business located at 6886 South Yosemite Street,
Englewood, Colorado 80117.
1. EXTENSION OF CREDIT. Subject to the terms of this Agreement, DFS may
extend credit to Dealer from time to time to purchase inventory from DFS
approved vendors ("Vendors") and for other purposes. If DFS advances funds
to Dealer following Dealer's execution of this Agreement, DFS will be
deemed to have entered into this Agreement with Dealer, whether or not
executed by DFS. DFS' decision to advance funds will not be binding until
the funds are actually advanced. DFS may combine all of DFS' advances to
Dealer or on Dealer's behalf, whether under this Agreement or any other
agreement, and whether provided by one or more of DFS' branch offices,
together with all finance charges, fees and expenses related thereto, to
make one debt owed by Dealer. DFS may, at any time and without notice to
Dealer, elect not to finance any inventory sold by particular Vendors who
are in default of their obligations to DFS, or with respect to which DFS
reasonably feels insecure. This is an agreement regarding the extension of
credit, and not the provision of goods or services.
2. FINANCING TERMS AND STATEMENTS OF TRANSACTION. Dealer and DFS agree that
certain financial terms of any advance made by DFS under this Agreement,
whether regarding finance charges, other fees, maturities, curtailments or
other financial terms, are not set forth herein because such terms depend,
in part, upon the availability of Vendor discounts, payment terms or other
incentives, prevailing economic conditions, DFS' floorplanning volume with
Dealer and with Dealer's Vendors, and other economic factors which may vary
over time. Dealer and DFS further agree that it is therefore in their
mutual best interest to set forth in this Agreement only the general terms
of Dealer's financing arrangement with DFS. Upon agreeing to finance a
particular item of inventory for Dealer, DFS will send Dealer a Statement
of Transaction identifying such inventory and the applicable financial
terms. Unless Dealer notifies DFS in writing of any objection within
fifteen (15) days after a Statement of Transaction is mailed to Dealer:
(a) the amount shown on such Statement of Transaction will be an account
stated; (b) Dealer will have agreed to all rates, charges and other terms
shown on such Statement of Transaction; (c) Dealer will have agreed that
DFS is financing the items of inventory referenced in such Statement of
Transaction at Dealer's request; and (d) such Statement of Transaction will
be incorporated herein by reference, will be made a part hereof as if
originally set forth herein, and will constitute an addendum hereto. If
Dealer objects to the terms of any Statement of Transaction, Dealer agrees
to pay DFS for such inventory in accordance with the most recent terms for
similar inventory to which Dealer has not objected (or, if there are no
prior terms, at the lesser of 16% per annum or at the maximum lawful
contract rate of interest permitted under applicable law), but Dealer
acknowledges that DFS may then elect to terminate Dealer's financing
program pursuant to Section 17, and cease making additional advances to
Dealer. However, such termination will not accelerate the maturities of
advances previously made, unless Dealer shall otherwise be in default of
this Agreement.
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3. GRANT OF SECURITY INTEREST. To secure payment of all of Dealer's current
and future debts to DFS, whether under this Agreement or any current or
future guaranty or other agreement, Dealer grants DFS a security interest
in all of Dealer's inventory, equipment, fixtures, accounts, contract
rights, chattel paper, security agreements, instruments, deposit accounts,
reserves, documents, and general intangibles; and all judgments, claims,
insurance policies, and payments owed or made to Dealer thereon; all
whether now owned or hereafter acquired, all attachments, accessories,
accessions, returns, repossessions, exchanges, substitutions and
replacements thereto, and all proceeds thereof. All such assets are
collectively referred to herein as the "Collateral." All of such terms for
which meanings are provided in the Uniform Commercial Code of the
applicable state are used herein with such meanings. All Collateral
financed by DFS, and all proceeds thereof, will be held in trust by Dealer
for DFS, with such proceeds being payable in accordance with Section 9.
4. AFFIRMATIVE WARRANTIES AND REPRESENTATIONS. Dealer warrants and represents
to DFS that: (a) Dealer has good title to all Collateral; (b) DFS'
security interest in the Collateral financed by DFS is not now and will not
become subordinate to the security interest, lien, encumbrance or claim of
any person (dealer has secured certain previous debt with certain items of
collateral which DFS acknowledges other creditors have a first lien
therein, as described in Exhibit A, attached hereto); (c) Dealer will
execute all documents DFS requests to perfect and maintain DFS' security
interest in the Collateral; (d) Dealer will deliver to DFS immediately upon
each request, and DFS may retain, each Certificate of Title or Statement of
Origin issued for Collateral financed by DFS; (e) Dealer will at all times
be duly organized, existing, in good standing, qualified and licensed to do
business in each state, county, or parish, in which the nature of its
business or property so requires; (f) Dealer has the right and is duly
authorized to enter into this Agreement; (g) Dealer's execution of this
Agreement does not constitute a breach of any agreement to which Dealer is
now or hereafter becomes bound; (h) there are and will be no actions or
proceedings pending or threatened against Dealer which might result in any
material adverse change in Dealer's financial or business condition or
which might in any way adversely affect any of Dealer's assets; (i) Dealer
will maintain the Collateral in good condition and repair; (j) Dealer has
duly filed and will duly file all tax returns required by law; (k) Dealer
has paid and will pay when due all taxes, levies, assessments and
governmental charges of any nature; (l) Dealer will keep and maintain all
of its books and records pertaining to the Collateral at its principal
place of business designated in this Agreement; (m) Dealer will promptly
supply DFS with such information concerning it or any Tyrex Oil Company as
DFS hereafter may reasonably request; (n) all Collateral will be kept at
Dealer's principal place of business listed above, and such other
locations, if any, of which Dealer has notified DFS in writing or as listed
on any current or future Exhibit "A" attached hereto which written
notice(s) to DFS and Exhibit A(s) are incorporated herein by reference; (o)
Dealer will give DFS thirty (30) days prior written notice of any change in
Dealer's identity, name, form of business organization, ownership,
principal place of business, Collateral locations or other business
locations, and before moving any books and records to any other location;
(p) Dealer will observe and perform all matters required by any lease,
license, concession or franchise forming part of the Collateral in order to
maintain all the rights of DFS thereunder; (q) Dealer will advise DFS of
the commencement of material legal proceedings against Dealer or any
guarantor; and (r) Dealer will comply with all applicable laws and will
conduct its business in a manner which preserves and protects the
Collateral and the earnings and incomes thereof.
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5. NEGATIVE COVENANTS. Dealer will not at any time (without DFS' prior
written consent): (a) other than in the ordinary course of its business,
sell, lease or otherwise dispose of or transfer any of its assets; (b)
rent, lease, demonstrate, consign, or use any Collateral financed by DFS;
or (c) merge or consolidate with another entity.
6. INSURANCE. Dealer will immediately notify DFS of any loss, theft or damage
to any Collateral. Dealer will keep the Collateral insured for its full
insurable value under an "all risk" property insurance policy with a
company acceptable to DFS, naming DFS as a lender loss-payee and containing
standard lender's loss payable and termination provisions. Dealer will
provide DFS with written evidence of such property insurance coverage and
lender's loss-payee endorsement.
7. FINANCIAL STATEMENTS. Dealer will deliver to DFS: (a) within ninety (90)
days after the end of each of Dealer's fiscal years, a reasonably detailed
balance sheet as of the last day of such fiscal year and a reasonably
detailed income statement covering Dealer's operations for such fiscal
year, in a form satisfactory to DFS; (b) within forty-five (45) days after
the end of each of Dealer's fiscal quarters, a reasonably detailed balance
sheet as of the last day of such quarter and an income statement covering
Dealer's operations for such quarter, in a form satisfactory to DFS; and
(c) within ten (10) days after request therefor by DFS, any other report
requested by DFS relating to the Collateral or the financial condition of
Dealer. Dealer warrants and represents to DFS that all financial
statements and information relating to Dealer or any guarantor which have
been or may hereafter be delivered by Dealer or any guarantor are true and
correct and have been and will be prepared in accordance with generally
accepted accounting principles consistently applied and, with respect to
such previously delivered statements or information, there has been no
material adverse change in the financial or business condition of Dealer or
any guarantor since the submission to DFS, either as of the date of
delivery, or, if different, the date specified therein, and Dealer
acknowledges DFS' reliance thereon.
8. REVIEWS. Dealer grants DFS an irrevocable license to enter Dealer's
business locations during normal business hours with 48 hours without
notice to Dealer (unless Dealer is in default hereunder, in which event no
advance notice will be required) to: (a) account for and inspect all
Collateral; (b) verify Dealer's compliance with this Agreement; and (c)
examine and copy Dealer's books and records related to the Collateral.
9. PAYMENT TERMS. Dealer will immediately pay DFS the principal indebtedness
owed DFS on each item of Collateral financed by DFS (as shown on the
Statement of Transaction identifying such Collateral) on the earliest
occurrence of any of the following events: (a) when such Collateral is
lost, stolen or damaged upon receipt of insurance proceeds if covered by
insurance, or immediately when such collateral is lost stolen or damaged if
such collateral is not covered by insurance; (b) for Collateral financed
under Pay-As-Sold ("PAS") terms (as shown on the Statement of Transaction
identifying such Collateral), when such Collateral is sold, transferred,
rented, leased, otherwise disposed of or matured; (c) in strict accordance
with any curtailment schedule for such Collateral (as shown on the
Statement of Transaction identifying such Collateral); (d) for Collateral
financed under Scheduled Payment Program ("SPP") terms (as shown on the
Statement of Transaction identifying such Collateral), in strict accordance
with the installment payment schedule; and (e) when otherwise required
under the terms of any financing program agreed to in writing by the
parties. Regardless of the SPP terms pertaining to any Collateral financed
by DFS, if DFS determines that the current outstanding debt which Dealer
3
owes to DFS exceeds the aggregate wholesale invoice price of such
Collateral in Dealer's possession, Dealer will immediately upon demand pay
DFS the difference between such outstanding debt and the aggregate
wholesale invoice price of such Collateral. If Dealer from time to time is
required to make immediate payment to DFS of any past due obligation
discovered during any Collateral review, or at any other time, Dealer
agrees that acceptance of such payment by DFS shall not be construed to
have waived or amended the terms of its financing program. The proceeds of
any Collateral received by Dealer will be held by Dealer in trust for DFS'
benefit, for application as provided in this Agreement. Dealer will send
all payments to DFS' branch office(s) responsible for Dealer's account.
DFS may apply: (i) payments to reduce finance charges first and then
principal, regardless of Dealer's instructions; and (ii) principal payments
to the oldest (earliest) invoice for Collateral financed by DFS, but, in
any event, all principal payments will first be applied to such Collateral
which is sold, lost, stolen, damaged, rented, leased, or otherwise disposed
of or unaccounted for. Any third party discount, rebate, bonus or credit
granted to Dealer for any Collateral will not reduce the debt Dealer owes
DFS until DFS has received payment therefor in cash. Dealer will: (1) pay
DFS even if any Collateral is defective or fails to conform to any
warranties extended by any third party; (2) not assert against DFS any
claim or defense Dealer has against any third party; and (3) indemnify and
hold DFS harmless against all claims and defenses asserted by any buyer of
the Collateral relating to the condition of, or any representations
regarding, any of the Collateral. Dealer waives all rights of offset and
counterclaims Dealer may have against DFS.
10. CALCULATION OF CHARGES. Dealer will pay finance charges to DFS on the
outstanding principal debt which Dealer owes DFS for each item of
Collateral financed by DFS at the rate(s) shown on the Statement of
Transaction identifying such Collateral, unless Dealer objects thereto as
provided in Section 2. The finance charges attributable to the rate shown
on the Statement of Transaction will: (a) be computed based on a 360 day
year; (b) be calculated by multiplying the Daily Charge (as defined below)
by the actual number of days in the applicable billing period; and (c)
accrue from the invoice date of the Collateral identified on such Statement
of Transaction until DFS receives full payment in good funds of the
principal debt Dealer owes DFS for each item of such Collateral in
accordance with DFS' payment recognition policy and DFS applies such
payment to Dealer's principal debt in accordance with the terms of this
Agreement. The "Daily Charge" is the product of the Daily Rate (as defined
below) multiplied by the Average Daily Balance (as defined below). The
"Daily Rate" is the quotient of the annual rate shown on the Statement of
Transaction divided by 360, or the monthly rate shown on the Statement of
Transaction divided by 30. The "Average Daily Balance" is the quotient of
(i) the sum of the outstanding principal debt owed DFS on each day of a
billing period for each item of Collateral identified on a Statement of
Transaction, divided by (ii) the actual number of days in such billing
period. Dealer will also pay DFS $100 for each check returned unpaid for
insufficient funds (an "NSF check") (such $100 payment repays DFS'
estimated administrative costs; it does not waive the default caused by the
NSF check). The annual percentage rate of the finance charges relating to
any item of Collateral financed by DFS will be calculated from the invoice
date of such Collateral, regardless of any period during which any finance
charge subsidy shall be paid or payable by any third party. Dealer
acknowledges that DFS intends to strictly conform to the applicable usury
laws governing this Agreement. Regardless of any provision contained
herein or in any other document executed or delivered in connection
herewith or therewith, DFS shall never be deemed to have contracted for,
charged or be entitled to receive, collect or apply as interest on this
Agreement (whether termed interest herein or deemed to be interest by
judicial determination
4
or operation of law), any amount in excess of the maximum amount allowed by
applicable law, and, if DFS ever receives, collects or applies as interest
any such excess, such amount which would be excessive interest will be
applied first to the reduction of the unpaid principal balances of advances
under this Agreement, and, second, any remaining excess will be paid to
Dealer. In determining whether or not the interest paid or payable under
any specific contingency exceeds the highest lawful rate, Dealer and DFS
shall, to the maximum extent permitted under applicable law: (A)
characterize any non-principal payment (other than payments which are
expressly designated as interest payments hereunder) as an expense or fee
rather than as interest; (B) exclude voluntary pre-payments and the effect
thereof; and (C) spread the total amount of interest throughout the entire
term of this Agreement so that the interest rate is uniform throughout such
term.
11. BILLING STATEMENT. DFS will send Dealer a monthly billing statement
identifying all charges due on Dealer's account with DFS. The charges
specified on each billing statement will be: (a) due and payable in full
immediately on receipt; and (b) an account stated, unless DFS receives
Dealer's written objection thereto within 15 days after it is mailed to
Dealer. If DFS does not receive, by the 25th day of any given month,
payment of all charges accrued to Dealer's account with DFS during the
immediately preceding month, Dealer will (to the extent allowed by law) pay
DFS a late fee ("Late Fee") equal to the greater of $5 or 5% of the amount
of such finance charges (payment of the Late Fee does not waive the default
caused by the late payment). DFS may adjust the billing statement at any
time to conform to applicable law and this Agreement.
12. DEFAULT. Dealer will be in default under this Agreement if: (a) Dealer
breaches any terms, warranties or representations contained herein, in any
Statement of Transaction to which Dealer has not objected as provided in
Section 2, or in any other agreement between DFS and Dealer; (b) any
guarantor of Dealer's debts to DFS breaches any terms, warranties or
representations contained in any guaranty or other agreement between the
guarantor and DFS; (c) any representation, statement, report or certificate
made or delivered by Dealer or any guarantor to DFS is not accurate when
made; (d) Dealer fails to pay any portion of Dealer's debts to DFS when due
and payable hereunder or under any other agreement between DFS and Dealer;
(e) Dealer abandons any Collateral; (f) Dealer or any guarantor is or
becomes in default in the payment of any debt owed to any third party; (g)
a money judgment issues against Dealer or any guarantor (dealer will have
the right to post a bond, and enter into a defencse of such); (h) an
attachment, sale or seizure issues or is executed against any assets of
Dealer or of any guarantor; (i) the undersigned dies while Dealer's
business is operated as a sole proprietorship, any general partner dies
while Dealer's business is operated as a general or limited partnership, or
any member dies while Dealer's business is operated as a limited liability
company, as applicable; (j) any guarantor dies; (k) Dealer or any guarantor
shall cease existence as a corporation, partnership, limited liability
company or trust, as applicable; (l) Dealer or any guarantor ceases or
suspends business; (m) Dealer, any guarantor or any member while Dealer's
business is operated as a limited liability company, as applicable, makes a
general assignment for the benefit of creditors; (n) Dealer, any guarantor
or any member while Dealer's business is operated as a limited liability
company, as applicable, becomes insolvent or voluntarily or involuntarily
becomes subject to the Federal Bankruptcy Code, any state insolvency law or
any similar law; (o) any receiver is appointed for any assets of Dealer,
any guarantor or any member while Dealer's business is operated as a
limited liability company, as applicable; (p) any guaranty of Dealer's
debts to DFS is
5
terminated; (q) Dealer loses any franchise, permission, license or right to
sell or deal in any Collateral which DFS finances; (r) Dealer or any
guarantor misrepresents Dealer's or such guarantor's financial condition or
organizational structure.
13. RIGHTS OF DFS UPON DEFAULT. In the event of a default:
(a) DFS may at any time at DFS' election, without notice or demand to
Dealer, do any one or more of the following: declare all or any part
of the debt Dealer owes DFS immediately due and payable, together with
all costs and expenses of DFS' collection activity, including, without
limitation, all reasonable attorneys' fees; exercise any or all rights
under applicable law (including, without limitation, the right to
possess, transfer and dispose of the Collateral); and/or cease
extending any additional credit to Dealer (DFS' right to cease
extending credit shall not be construed to limit the discretionary
nature of this credit facility).
(b) Dealer will segregate and keep the Collateral in trust for DFS, and in
good order and repair, and will not sell, rent, lease, consign,
otherwise dispose of or use any Collateral, nor further encumber any
Collateral.
(c) Upon DFS' oral or written demand, Dealer will immediately deliver the
Collateral to DFS (subject to any prior encumbrance as reflected in
Exhibit A, attached hereto), in good order and repair, at a place
specified by DFS, together with all related documents; or DFS may, in
DFS' sole discretion and without notice or demand to Dealer, take
immediate possession of the Collateral together with all related
documents.
(d) DFS may, without notice, apply a default finance charge to Dealer's
outstanding principal indebtedness equal to the default rate specified
in Dealer's financing program with DFS, if any, or if there is none so
specified, at the lesser of 3% per annum above the rate in effect
immediately prior to the default, or the highest lawful contract rate
of interest permitted under applicable law.
All of DFS' rights and remedies are cumulative. DFS' failure to
exercise any of DFS' rights or remedies hereunder will not waive any
of DFS' rights or remedies as to any past, current or future default.
14. SALE OF COLLATERAL. Dealer agrees that if DFS conducts a private sale of
any Collateral by requesting bids from 10 or more dealers or distributors
in that type of Collateral, any sale by DFS of such Collateral in bulk or
in parcels within 120 days of: (a) DFS' taking possession and control of
such Collateral; or (b) when DFS is otherwise authorized to sell such
Collateral; whichever occurs last, to the bidder submitting the highest
cash bid therefor, is a commercially reasonable sale of such Collateral
under the Uniform Commercial Code. Dealer agrees that the purchase of any
Collateral by a Vendor, as provided in any agreement between DFS and the
Vendor, is a commercially reasonable disposition and private sale of such
Collateral under the Uniform Commercial Code, and no request for bids shall
be required. Dealer further agrees that 7 or more days prior written
notice will be commercially reasonable notice of any public or private sale
(including any sale to a Vendor). Dealer irrevocably waives any
requirement that DFS retain possession and not dispose of any Collateral
until after an arbitration hearing, arbitration award, confirmation, trial
or final judgment. If DFS disposes of any such Collateral other than as
herein contemplated, the commercial reasonableness of such disposition will
be determined in accordance with the laws of the state governing this
Agreement.
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15. POWER OF ATTORNEY. Dealer grants DFS an irrevocable power of attorney to:
execute or endorse on Dealer's behalf any checks, financing statements,
instruments, Certificates of Title and Statements of Origin pertaining to
the Collateral; supply any omitted information and correct errors in any
documents between DFS and Dealer; initiate and settle any insurance claim
pertaining to the Collateral; and do anything to preserve and protect the
Collateral and DFS' rights and interest therein.
16. INFORMATION. DFS may provide to any third party any credit, financial or
other information on Dealer that DFS may from time to time possess. DFS
may obtain from any Vendor any credit, financial or other information
regarding Dealer that such Vendor may from time to time possess.
17. TERMINATION. Either party may terminate this Agreement at any time by
written notice received by the other party. If DFS terminates this
Agreement, Dealer agrees that if Dealer: (a) is not in default hereunder,
60 days prior notice of termination is reasonable and sufficient (although
this provision shall not be construed to mean that shorter periods may not,
in particular circumstances, also be reasonable and sufficient); or (b) is
in default hereunder, no prior notice of termination is required. Dealer
will not be relieved from any obligation to DFS arising out of DFS'
advances or commitments made before the effective termination date of this
Agreement. DFS will retain all of its rights, interests and remedies
hereunder until Dealer has paid all of Dealer's debts to DFS. All waivers
set forth within this Agreement will survive any termination of this
Agreement.
18. BINDING EFFECT. Dealer cannot assign its interest in this Agreement
without DFS' prior written consent, although DFS may assign or participate
DFS' interest, in whole or in part, without Dealer's consent. This
Agreement will protect and bind DFS' and Dealer's respective heirs,
representatives, successors and assigns.
19. NOTICES. Except as otherwise stated herein, all notices, arbitration
claims, responses, requests and documents will be sufficiently given or
served if mailed or delivered: (a) to Dealer at Dealer's principal place
of business specified above; and (b) to DFS at 655 Maryville Centre Drive,
St. Louis, Missouri 63141-5832, Attention: General Counsel, or such other
address as the parties may hereafter specify in writing.
20. NO ORAL AGREEMENTS. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES
TO EXTEND OR RENEW SUCH DEBTS ARE NOT ENFORCEABLE. TO PROTECT DEALER AND
DFS FROM MISUNDERSTANDING OR DISAPPOINTMENT, ALL AGREEMENTS COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, EXCEPT AS SPECIFICALLY
PROVIDED HEREIN OR AS THE PARTIES MAY LATER AGREE IN WRITING TO MODIFY IT.
THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
21. OTHER WAIVERS. Dealer irrevocably waives notice of: DFS' acceptance of
this Agreement, presentment, demand, protest, nonpayment, nonperformance,
and dishonor. Dealer and DFS irrevocably waive all rights to claim any
punitive and/or exemplary damages.
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22. SEVERABILITY. If any provision of this Agreement or its application is
invalid or unenforceable, the remainder of this Agreement will not be
impaired or affected and will remain binding and enforceable.
23. SUPPLEMENT. If Dealer and DFS have heretofore executed other agreements in
connection with all or any part of the Collateral, this Agreement shall
supplement each and every other agreement previously executed by and
between Dealer and DFS, and in that event this Agreement shall neither be
deemed a novation nor a termination of such previously executed agreement
nor shall execution of this Agreement be deemed a satisfaction of any
obligation secured by such previously executed agreement.
24. RECEIPT OF AGREEMENT. Dealer acknowledges that it has received a true and
complete copy of this Agreement. Dealer acknowledges that it has read and
understood this Agreement. Notwithstanding anything herein to the
contrary: (a) DFS may rely on any facsimile copy, electronic data
transmission or electronic data storage of this Agreement, any Statement of
Transaction, billing statement, invoice from a Vendor, financial statements
or other reports, and (b) such facsimile copy, electronic data transmission
or electronic data storage will be deemed an original, and the best
evidence thereof for all purposes, including, without limitation, under
this Agreement or any other agreement between DFS and Dealer, and for all
evidentiary purposes before any arbitrator, court or other adjudicatory
authority.
25. MISCELLANEOUS. Time is of the essence regarding Dealer's performance of
its obligations to DFS notwithstanding any course of dealing or custom on
DFS' part to grant extensions of time. Dealer's liability under this
Agreement is direct and unconditional and will not be affected by the
release or nonperfection of any security interest granted hereunder. DFS
will have the right to refrain from or postpone enforcement of this
Agreement or any other agreements between DFS and Dealer without prejudice
and the failure to strictly enforce these agreements will not be construed
as having created a course of dealing between DFS and Dealer contrary to
the specific terms of the agreements or as having modified, released or
waived the same. The express terms of this Agreement will not be modified
by any course of dealing, usage of trade, or custom of trade which may
deviate from the terms hereof. If Dealer fails to pay any taxes, fees or
other obligations which may impair DFS' interest in the Collateral, or
fails to keep the Collateral insured, DFS may, but shall not be required
to, pay such taxes, fees or obligations and pay the cost to insure the
Collateral, and the amounts paid will be: (a) an additional debt owed by
Dealer to DFS, which shall be subject to finance charges as provided
herein; and (b) due and payable immediately in full. Dealer agrees to pay
all of DFS' reasonable attorneys' fees and expenses incurred by DFS in
enforcing DFS' rights hereunder. The Section titles used in this Agreement
are for convenience only and do not define or limit the contents of any
Section.
26. BINDING ARBITRATION.
26.1 ARBITRABLE CLAIMS. Except as otherwise specified below, all actions,
disputes, claims and controversies under common law, statutory law or
in equity of any type or nature whatsoever (including, without
limitation, all torts, whether regarding negligence, breach of
fiduciary duty, restraint of trade, fraud, conversion, duress,
interference, wrongful replevin, wrongful sequestration, fraud in the
inducement, usury or any other tort, all contract actions, whether
regarding express or implied terms, such as implied covenants
8
of good faith, fair dealing, and the commercial reasonableness of any
Collateral disposition, or any other contract claim, all claims of
deceptive trade practices or lender liability, and all claims
questioning the reasonableness or lawfulness of any act), whether
arising before or after the date of this Agreement, and whether
directly or indirectly relating to: (a) this Agreement and/or any
amendments and addenda hereto, or the breach, invalidity or
termination hereof; (b) any previous or subsequent agreement between
DFS and Dealer; (c) any act committed by DFS or by any parent company,
subsidiary or affiliated company of DFS (the "DFS Companies"), or by
any employee, agent, officer or director of a DFS Company whether or
not arising within the scope and course of employment or other
contractual representation of the DFS Companies provided that such act
arises under a relationship, transaction or dealing between DFS and
Dealer; and/or (d) any other relationship, transaction or dealing
between DFS and Dealer (collectively the "Disputes"), will be subject
to and resolved by binding arbitration.
26.2 ADMINISTRATIVE BODY. All arbitration hereunder will be conducted in
accordance with the Commercial Arbitration Rules of The American
Arbitration Association ("AAA"). If the AAA is dissolved, disbanded
or becomes subject to any state or federal bankruptcy or insolvency
proceeding, the parties will remain subject to binding arbitration
which will be conducted by a mutually agreeable arbitral forum. The
parties agree that all arbitrator(s) selected will be attorneys with
at least five (5) years secured transactions experience. The
arbitrator(s) will decide if any inconsistency exists between the
rules of any applicable arbitral forum and the arbitration provisions
contained herein. If such inconsistency exists, the arbitration
provisions contained herein will control and supersede such rules.
The site of all arbitration proceedings will be in the Division of the
Federal Judicial District in which AAA maintains a regional office
that is closest to Dealer.
26.3 DISCOVERY. Discovery permitted in any arbitration proceeding
commenced hereunder is limited as follows. No later than thirty (30)
days after the filing of a claim for arbitration, the parties will
exchange detailed statements setting forth the facts supporting the
claim(s) and all defenses to be raised during the arbitration, and a
list of all exhibits and witnesses. No later than twenty-one (21)
days prior to the arbitration hearing, the parties will exchange a
final list of all exhibits and all witnesses, including any
designation of any expert witness(es) together with a summary of their
testimony; a copy of all documents and a detailed description of any
property to be introduced at the hearing. Under no circumstances will
the use of interrogatories, requests for admission, requests for the
production of documents or the taking of depositions be permitted.
However, in the event of the designation of any expert witness(es),
the following will occur: (a) all information and documents relied
upon by the expert witness(es) will be delivered to the opposing
party, (b) the opposing party will be permitted to depose the expert
witness(es), (c) the opposing party will be permitted to designate
rebuttal expert witness(es), and (d) the arbitration hearing will be
continued to the earliest possible date that enables the foregoing
limited discovery to be accomplished.
26.4 EXEMPLARY OR PUNITIVE DAMAGES. The Arbitrator(s) will not have the
authority to award exemplary or punitive damages.
26.5 CONFIDENTIALITY OF AWARDS. All arbitration proceedings, including
testimony or evidence at hearings, will be kept confidential, although
any award or order rendered by
9
the arbitrator(s) pursuant to the terms of this Agreement may be
entered as a judgment or order in any state or federal court and may
be confirmed within the federal judicial district which includes the
residence of the party against whom such award or order was entered.
This Agreement concerns transactions involving commerce among the
several states. The Federal Arbitration Act, Title 9 U.S.C. Sections
1 et seq., as amended ("FAA") will govern all arbitration(s) and
confirmation proceedings hereunder.
26.6 PREJUDGMENT AND PROVISIONAL REMEDIES. Nothing herein will be
construed to prevent DFS' or Dealer's use of bankruptcy, receivership,
injunction, repossession, replevin, claim and delivery, sequestration,
seizure, attachment, foreclosure, dation and/or any other prejudgment
or provisional action or remedy relating to any Collateral for any
current or future debt owed by either party to the other. Any such
action or remedy will not waive DFS' or Dealer's right to compel
arbitration of any Dispute.
26.7 ATTORNEYS' FEES. If either Dealer or DFS brings any other action for
judicial relief with respect to any Dispute (other than those set
forth in Section 26.6), the party bringing such action will be liable
for and immediately pay all of the other party's costs and expenses
(including attorneys' fees) incurred to stay or dismiss such action
and remove or refer such Dispute to arbitration. If either Dealer or
DFS brings or appeals an action to vacate or modify an arbitration
award and such party does not prevail, such party will pay all costs
and expenses, including attorneys' fees, incurred by the other party
in defending such action. Additionally, if Dealer sues DFS or
institutes any arbitration claim or counterclaim against DFS in which
DFS is the prevailing party, Dealer will pay all costs and expenses
(including attorneys' fees) incurred by DFS in the course of defending
such action or proceeding.
26.8 LIMITATIONS. Any arbitration proceeding must be instituted: (a) with
respect to any Dispute for the collection of any debt owed by either
party to the other, within two (2) years after the date the last
payment was received by the instituting party; and (b) with respect to
any other Dispute, within two (2) years after the date the incident
giving rise thereto occurred, whether or not any damage was sustained
or capable of ascertainment or either party knew of such incident.
Failure to institute an arbitration proceeding within such period will
constitute an absolute bar and waiver to the institution of any
proceeding, whether arbitration or a court proceeding, with respect to
such Dispute.
26.9 SURVIVAL AFTER TERMINATION. The agreement to arbitrate will survive
the termination of this Agreement.
27. INVALIDITY/UNENFORCEABILITY OF BINDING ARBITRATION. IF THIS AGREEMENT IS
FOUND TO BE NOT SUBJECT TO ARBITRATION, ANY LEGAL PROCEEDING WITH RESPECT
TO ANY DISPUTE WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A
JUDGE WITHOUT A JURY. DEALER AND DFS WAIVE ANY RIGHT TO A JURY TRIAL IN
ANY SUCH PROCEEDING.
28. GOVERNING LAW. Dealer acknowledges and agrees that this and all other
agreements between Dealer and DFS have been substantially negotiated, and
will be substantially performed, in the state of ARIZONA. Accordingly,
Dealer agrees that all Disputes will be governed by, and construed in
accordance with, the laws of such state, except to the extent inconsistent
with the provisions of the FAA which shall control and govern all
arbitration proceedings hereunder.
10
IN WITNESS WHEREOF, Dealer and DFS have executed this Agreement as of the
date first set forth hereinabove.
THIS CONTRACT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE
WAIVER PROVISIONS.
DEUTSCHE FINANCIAL SERVICES CORPORATION Kimbrough Computer Sales, Inc.
----------------------------------------
Dealer's Name
By: /s/ James M. Wardle By: /s/ Frederick J. Slack
-------------------------------- -----------------------------------
Print Name: James M. Wardle Print Name: Frederick J. Slack
------------------------- ---------------------------
Title: Regional Credit Manager Title: CEO
------------------------------ --------------------------------
By:
Print Name:
Title:
ATTEST:
/s/ Felipe L. Valdez
--------------------------------------
(Assistant) Secretary
Print Name: Felipe L. Valdez
--------------------------
11
SECRETARY'S CERTIFICATE OF RESOLUTION
I certify that I am the Secretary or Assistant Secretary of the corporation
named below, and that the following completely and accurately sets forth certain
resolutions of the Board of Directors of the corporation adopted at a special
meeting thereof held on due notice (and with shareholder approval, if required
by law), at which meeting there was present a quorum authorized to transact the
business described below, and that the proceedings of the meeting were in
accordance with the certificate of incorporation, charter and by-laws of the
corporation, and that they have not been revoked, annulled or amended in any
manner whatsoever.
Upon motion duly made and seconded, the following resolution was
unanimously adopted after full discussion:
"RESOLVED, That the several officers, directors, and agents of this
corporation, or any one or more of them, are hereby authorized and empowered on
behalf of this corporation: to obtain financing from Deutsche Financial
Services Corporation ("DFS") in such amounts and on such terms as such officers,
directors or agents deem proper; to enter into financing, security, pledge and
other agreements with DFS relating to the terms upon which such financing may be
obtained and security and/or other credit support is to be furnished by this
corporation therefor; from time to time to supplement or amend any such
agreements; and from time to time to pledge, assign, mortgage, grant security
interests, and otherwise transfer, to DFS as collateral security for any
obligations of this corporation to DFS, whenever and however arising, any assets
of this corporation, whether now owned or hereafter acquired; the Board of
Directors hereby ratifying, approving and confirming all that any of said
officers, directors or agents have done or may do with respect to the
foregoing."
IN WITNESS WHEREOF, I have executed and affixed the seal of the corporation
on the date stated below.
Dated: September 30 , 19 97
-------------------- ----
/s/ Felipe L. Valdez
----------------------------
(Assistant) Secretary
Kimbrough Computer Sales, Inc.
-------------------------------------------
Corporate Name
(SEAL)
12
Exhibit 97.10.10
SCHEDULE 4.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT is signed as of the 28th day of May, 1997, by and between
3SI, Inc., a Colorado corporation (hereinafter referred to as "3SI"), and
Frederick J. Slack (hereinafter referred to as "Slack").
WITNESSETH THAT:
WHEREAS, Slack has been employed by 3SI as a full-time employee of 3SI; and
WHEREAS, Slack's full-time employment will continue after 3SI's merger with
Tyrex Oil Company, a Wyoming corporation ("Tyrex") on or about May 31, 1997; and
WHEREAS, 3SI and Slack desire to state in writing the terms and conditions
of their agreements and understandings, and to continue the term of Slack's
employment on a full-time basis hereunder;
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
herein contained, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending legally to
be bound, agree as follows:
1. Term of Employment.
------------------
The term shall commence on June 1, 1997, and shall continue through May 31,
2000, unless sooner terminated in accordance with the provisions of Paragraph
4.2 below.
2. Duties.
------
2.1 It is understood and agreed that Slack's principal duties on behalf of
3SI are and shall be as Chief Executive Officer and as a member of the Board of
Directors, or such additional responsibilities as may be mutually agreed by
Slack and the Board of Directors of 3SI.
2.2 Slack covenants and agrees that at all times during the term of this
Agreement, he shall devote his best efforts to his duties as an employee of 3SI;
provided, that he shall not be required to work on any set schedule or for any
set number of hours.
3. Compensation.
------------
3.1 Salary. As compensation for the services to be rendered by Slack for
------
3SI under this Agreement, including services as a director of 3SI, Slack shall
be paid the following annual salary, on the same basis (biweekly) as 3SI's
payroll, during the term hereof:
1
Term Salary
- -----------------------------------------------------------
1st Year (June 1, 1997-May 31, 1998) $110,000
2nd Year $120,000
3rd Year $125,000
[3.2 Bonus. The employee shall also be entitled to incentive bonuses as,
-----
when and if declared by the Board of Directors.]
4. Additional Benefits.
-------------------
In addition to, and not in limitation of, the compensation referred to in
Paragraph 3, Slack shall be paid the following additional benefits during the
term hereof:
4.1 Reimbursement. Reimbursement of all reasonable expenses incurred by
-------------
Slack in connection with performance of his duties, upon submission of vouchers.
Reasonable expenses shall include, but not be limited to all reasonable out-of-
pocket expenses for entertainment, automobile expenses, travel, meals, lodging,
professional dues and the like incurred by Slack in the interest of 3SI, subject
to such guidelines and policies as may be promulgated by 3SI for senior
executives.
4.2 Death or Disability Payments. In the event of Slack's disability or
----------------------------
death, prior to May 31, 2000, Slack's salary in effect at the time of his death
or disability shall continue to be paid to Slack, or to his designee, for a
period of twelve (12) calendar months from the date of death or from the date of
his termination by reason of disability. For the purposes of this Agreement,
the obligations of 3SI to make the payments upon the disability of Slack shall
not become effective unless and until all of the following conditions are met,
as determined by an independent physician selected by the Board of Directors of
3SI and agreed to by Slack: (1) Slack shall become physically or mentally
incapable (excluding infrequent and temporary absences due to ordinary
illnesses) of properly performing the services required of him in accordance
with his obligations under paragraph 2 hereof or similar provisions of any
renewal agreement; (2) such incapacities shall exist or be reasonably expected
to exist for more than ninety (90) days in the aggregate during the period of
twelve (12) consecutive months; and (3) either Slack or 3SI shall have given the
other thirty (30) days' written notice of his or its intention to terminate the
active employment of Slack because of such disability.
4.3 Life Insurance. Slack shall continue to be provided with the existing
--------------
$150,000 life insurance policy (the "Policy") during the term of this Agreement.
At the termination of this Agreement, Slack shall have the right, at his option,
to take over full payments on the Policy, and ownership of the Policy.
4.4 Comparable Benefits. Slack shall also be provided with the same
-------------------
additional benefits comparable to other senior management Employees of 3SI,
including but not limited to health, dental, and disability insurance, Section
401(K) plan, and stock options, and shall be included in any 3SI bonus incentive
plan established from time to time, and shall receive holiday, sick leave, and
vacation benefits (4 weeks per year) on the same basis as is generally available
to all senior executives of 3SI. Slack shall be eligible for Stock Options on
the same basis as other directors of 3SI.
2
5. Disclosure of Information.
-------------------------
Slack acknowledges that in and as a result of his employment hereunder, he
will be making use of, acquiring, and/or adding to confidential information of a
special and unique nature and value relating to such matters as 3SI's trade
secrets, systems, procedures, manuals, confidential reports, and lists of
clients. As a material inducement to 3SI to enter into this Agreement and to
pay to Slack the compensation stated in Paragraph 3, as well as any additional
benefits stated in Paragraph 4, Slack covenants and agrees that he shall not,
other than in the ordinary course of business conducted for 3SI, at any time
during or following the term of his employment, directly or indirectly divulge
or disclose for any purpose whatsoever or appropriate to his own use or to the
use of others any confidential information that has been obtained by, or
disclosed to him, as a result of his employment by 3SI.
6. Covenant Not To Compete. Slack agrees that he shall not directly or
-----------------------
indirectly own, control, operate, manage, consult, own shares in, be employed
by, or otherwise participate in any sole proprietorship, corporation,
partnership or entity whose primary business is the same or similar to the
business of 3SI during the term of his employment hereunder, nor for a period of
one (1) year after his termination of employment, anywhere within the territory
in which 3SI does business; provided, that the Board of Directors shall have the
right (but not be required) to waive this covenant not to compete in writing,
with respect to any specific situation presented to them in advance, in writing
by Slack, where the Board of Directors, at their sole and absolute discretion,
deem Slack's intended participation not to be adverse to 3SI's interests.
The parties hereto recognize that Slack has been retained as a member of
the senior executive management of 3SI, and that in said position he is
considered to be part of the professional, management and executive staff of the
Corporation.
In the event Slack violates this covenant of non-competition, both parties
acknowledge and agree that 3SI shall have the right to bring a lawsuit to
enforce this covenant against Slack, and to obtain equitable relief in the form
of an injunction and, where applicable, damages at law; that the District Court
for El Paso County, Colorado shall have venue, and exclusive jurisdiction in
such lawsuit; and that Colorado law shall apply.
In the event 3SI must bring such a lawsuit by reason of Slack's breach of
this covenant of non-competition, 3SI shall be entitled to recover its
reasonable attorneys fees, costs, and expenses of litigation, in the event it
prevails in such lawsuit.
This covenant of non-competition has been negotiated and agreed to by and
between 3SI and Slack with full knowledge of, and pursuant to the requirements
of Section 8-2-113 (2) Colorado Revised Statutes, as amended from time to time,
and is deemed by both parties to be fair and reasonable under the terms of that
statute.
7. Option to Extend. At Slack's and 3SI's option, upon their mutual
----------------
agreement, upon thirty (30) days prior written notice, the term of this
Agreement may be extended for a period of two (2) additional years, on the same
terms and conditions as contained herein.
3
8. Indemnification.
---------------
So long as Slack is not found by a court of law to be guilty of a willful
and material breach of this Agreement, or to be guilty of willful gross
misconduct, he shall be indemnified from and against any and all losses,
liability, claims and expenses, damages, or causes of action, proceedings or
investigations, or threats thereof (including reasonable attorney fees and
expenses of counsel satisfactory to and approved by Slack) incurred by Slack,
arising out of, in connection with, or based upon Slack's services and the
performance of his duties pursuant to this Agreement, or any other matter
contemplated by this Agreement, whether or not resulting in any such liability;
and Slack shall be reimbursed by 3SI as and when incurred for any reasonable
legal or other expenses incurred by Slack in connection with investigating or
defending against any such loss, claim, damage, liability, action, proceeding,
investigation or threat thereof, or producing evidence, producing documents or
taking any other action in respect thereto (whether or not Slack is a defendant
in or target of such action, proceeding or investigation).
9. Governing Law.
-------------
It is understood and agreed that the construction and interpretation of
this Agreement shall at all times and in all respects be governed by the laws of
the State of Colorado.
10. Severability.
------------
The provisions of this Agreement shall be deemed severable, and the
invalidity or unenforceability of any one or more of the provisions of this
Agreement shall not affect the validity and enforceability of the other
provisions.
11. Notice.
------
Any notice required to be given shall be sufficient if it is in writing and
sent by certified or registered mail, return receipt requested, first-class
postage prepaid, to his residence in the case of Slack, and to its principal
office in the case of 3SI.
12. Entire Agreement; Cancellation of Prior Agreements.
---------------- --------------------------------
12.1 This Agreement contains the entire agreement and understanding by and
between 3SI and Slack with respect to the employment of Slack, and no represen-
tations, promises, agreements, or understandings, written or oral, not contained
herein shall be of any force or effect. No change or modification of this
Agreement shall be valid or binding unless it is in writing and signed by the
party intended to be bound.
12.2 This Agreement replaces in its entirety Slack's prior Employment
Agreement between Slack and 3SI.
12.3 No waiver of any provision of this Agreement shall be valid unless it
is in writing and signed by the party against whom the waiver is sought to be
enforced. No valid waiver of any provision of this Agreement at any time shall
be deemed a waiver of any other provision of this Agreement at such time or at
any other time.
4
13. Burden and Benefit.
------------------
This Agreement (together with Slack's stock options pursuant to 3SI's stock
option plans) shall be binding upon, and shall inure to the benefit of, 3SI and
Slack, and their respective heirs, personal and legal representatives,
successors, and assigns and shall be expressly binding upon and inure to the
benefit of any person or entity acquiring 3SI, by merger, consolidation,
purchase of assets or stock, or otherwise.
The duties of Slack hereunder are not assignable by Slack without the prior
written consent of 3SI, and the interests of Slack hereunder are not subject to
the claims of his creditors, and may not be voluntarily or involuntarily
assigned, alienated or encumbered.
14. Termination.
-----------
14.1 By Slack. Slack may at his sole option, terminate this Agreement,
--------
upon ninety (90) days written notice to 3SI. Upon such termination by Slack,
3SI shall have no further liabilities or obligations to Slack hereunder; except
under Section 8 (Indemnification), and Slack's only further liabilities to 3SI
shall be his covenants under Section 5 (Disclosure of Information), and Section
6 (Covenant not to Compete), which Sections shall survive termination of this
Agreement.
14.2 By 3SI. 3SI may terminate Slack's employment hereunder during the
------
term or any extended term hereof only (1) in the event of Slack's death or
disability, subject to the provisions of Section 4.2 above; or (2) "for cause,"
which shall be defined as "the failure of Slack for any reason, within thirty
(30) days after receipt by Slack of written notice thereof from 3SI, to correct,
cease, or otherwise alter any action or omission to act that constitutes a
material and willful breach of this Agreement likely to result in material
damage to the 3SI, or willful gross misconduct likely to result in material
damage to the 3SI." Upon such termination "for cause" under Section 14.2, 3SI
shall have no further liabilities to Slack, except under Section 8
(Indemnification), and Slack's only further liabilities to 3SI shall be his
covenants under Section 5 (Disclosure of Information), and Section 6 (Covenant
Not to Compete), which Sections shall survive termination of this Agreement.
15. Counterparts.
------------
The Agreement may be executed in two or more counterparts, any one of which
shall be deemed the original without reference to the others.
IN WITNESS WHEREOF, 3SI and Slack have duly executed this Agreement as of
the day and year first above written.
3SI:
ATTEST: 3SI, INC., a Colorado corporation
/s/ Felipe L. Valdez By: /s/ Frederick J. Slack
- ------------------------------ --------------------------------
Secretary President
SLACK:
/s/ Frederick J. Slack
----------------------------------------
FREDERICK J. SLACK
5
Exhibit 97.10.11
SCHEDULE 4.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT is signed as of the 28th day of May, 1997, by and between
3SI, Inc., a Colorado corporation (hereinafter referred to as "3SI"), and Felipe
Larry Valdez (hereinafter referred to as "Valdez").
WITNESSETH THAT:
WHEREAS, Valdez has been employed by 3SI as a full-time employee of 3SI;
and
WHEREAS, Valdez's full-time employment will continue after 3SI's merger
with Tyrex Oil Company, a Wyoming corporation ("Tyrex") on or about May 31,
1997; and
WHEREAS, 3SI and Valdez desire to state in writing the terms and conditions
of their agreements and understandings, and to continue the term of Valdez's
employment on a full-time basis hereunder;
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
herein contained, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending legally to
be bound, agree as follows:
1. Term of Employment.
------------------
The term shall commence on June 1, 1997, and shall continue through May 31,
2000, unless sooner terminated in accordance with the provisions of Paragraph
4.2 below.
2. Duties.
------
2.1 It is understood and agreed that Valdez's principal duties on behalf
of 3SI are and shall be as Chief Operating Officer and as a member of the Board
of Directors, or such additional responsibilities as may be mutually agreed by
Valdez and the Board of Directors of 3SI.
2.2 Valdez covenants and agrees that at all times during the term of this
Agreement, he shall devote his best efforts to his duties as an employee of 3SI;
provided, that he shall not be required to work on any set schedule or for any
set number of hours.
3. Compensation.
------------
3.1 Salary. As compensation for the services to be rendered by Valdez for
------
3SI under this Agreement, including services as a director of 3SI, Valdez shall
be paid the following annual salary, on the same basis (biweekly) as 3SI's
payroll, during the term hereof:
1
Term Salary
- -----------------------------------------------------------
1st Year (June 1, 1997-May 31, 1998) $110,000
2nd Year $120,000
3rd Year $125,000
3.2 Bonus. The employee shall also be entitled to incentive bonuses as,
-----
when and if declared by the Board of Directors.]
4. Additional Benefits.
-------------------
In addition to, and not in limitation of, the compensation referred to in
Paragraph 3, Valdez shall be paid the following additional benefits during the
term hereof:
4.1 Reimbursement. Reimbursement of all reasonable expenses incurred by
-------------
Valdez in connection with performance of his duties, upon submission of
vouchers. Reasonable expenses shall include, but not be limited to all
reasonable out-of-pocket expenses for entertainment, automobile expenses,
travel, meals, lodging, professional dues and the like incurred by Valdez in the
interest of 3SI, subject to such guidelines and policies as may be promulgated
by 3SI for senior executives.
4.2 Death or Disability Payments. In the event of Valdez's disability or
----------------------------
death, prior to May 31, 2000, Valdez's salary in effect at the time of his death
or disability shall continue to be paid to Valdez, or to his designee, for a
period of twelve (12) calendar months from the date of death or from the date of
his termination by reason of disability. For the purposes of this Agreement,
the obligations of 3SI to make the payments upon the disability of Valdez shall
not become effective unless and until all of the following conditions are met,
as determined by an independent physician selected by the Board of Directors of
3SI and agreed to by Valdez: (1) Valdez shall become physically or mentally
incapable (excluding infrequent and temporary absences due to ordinary
illnesses) of properly performing the services required of him in accordance
with his obligations under paragraph 2 hereof or similar provisions of any
renewal agreement; (2) such incapacities shall exist or be reasonably expected
to exist for more than ninety (90) days in the aggregate during the period of
twelve (12) consecutive months; and (3) either Valdez or 3SI shall have given
the other thirty (30) days' written notice of his or its intention to terminate
the active employment of Valdez because of such disability.
4.3 Life Insurance. Valdez shall continue to be provided with the
--------------
existing $150,000 life insurance policy (the "Policy") during the term of this
Agreement. At the termination of this Agreement, Valdez shall have the right,
at his option, to take over full payments on the Policy, and ownership of the
Policy.
4.4 Comparable Benefits. Valdez shall also be provided with the same
-------------------
additional benefits comparable to other senior management Employees of 3SI,
including but not limited to health, dental, and disability insurance, Section
401(K) plan, and stock options, and shall be included in any 3SI bonus incentive
plan established from time to time, and shall receive holiday, sick leave, and
vacation benefits (4 weeks per year) on the same basis as is generally available
to all senior executives of 3SI. Valdez shall be eligible for Stock Options on
the same basis as other directors of 3SI.
2
5. Disclosure of Information.
-------------------------
Valdez acknowledges that in and as a result of his employment hereunder, he
will be making use of, acquiring, and/or adding to confidential information of a
special and unique nature and value relating to such matters as 3SI's trade
secrets, systems, procedures, manuals, confidential reports, and lists of
clients. As a material inducement to 3SI to enter into this Agreement and to
pay to Valdez the compensation stated in Paragraph 3, as well as any additional
benefits stated in Paragraph 4, Valdez covenants and agrees that he shall not,
other than in the ordinary course of business conducted for 3SI, at any time
during or following the term of his employment, directly or indirectly divulge
or disclose for any purpose whatsoever or appropriate to his own use or to the
use of others any confidential information that has been obtained by, or
disclosed to him, as a result of his employment by 3SI.
6. Covenant Not To Compete. Valdez agrees that he shall not directly or
-----------------------
indirectly own, control, operate, manage, consult, own shares in, be employed
by, or otherwise participate in any sole proprietorship, corporation,
partnership or entity whose primary business is the same or similar to the
business of 3SI during the term of his employment hereunder, nor for a period of
one (1) year after his termination of employment, anywhere within the territory
in which 3SI does business; provided, that the Board of Directors shall have the
right (but not be required) to waive this covenant not to compete in writing,
with respect to any specific situation presented to them in advance, in writing
by Valdez, where the Board of Directors, at their sole and absolute discretion,
deem Valdez's intended participation not to be adverse to 3SI's interests.
The parties hereto recognize that Valdez has been retained as a member of
the senior executive management of 3SI, and that in said position he is
considered to be part of the professional, management and executive staff of the
Corporation.
In the event Valdez violates this covenant of non-competition, both parties
acknowledge and agree that 3SI shall have the right to bring a lawsuit to
enforce this covenant against Valdez, and to obtain equitable relief in the form
of an injunction and, where applicable, damages at law; that the District Court
for El Paso County, Colorado shall have venue, and exclusive jurisdiction in
such lawsuit; and that Colorado law shall apply.
In the event 3SI must bring such a lawsuit by reason of Valdez's breach of
this covenant of non-competition, 3SI shall be entitled to recover its
reasonable attorneys fees, costs, and expenses of litigation, in the event it
prevails in such lawsuit.
This covenant of non-competition has been negotiated and agreed to by and
between 3SI and Valdez with full knowledge of, and pursuant to the requirements
of Section 8-2-113 (2) Colorado Revised Statutes, as amended from time to time,
and is deemed by both parties to be fair and reasonable under the terms of that
statute.
7. Option to Extend. At Valdez's and 3SI's option, upon their mutual
----------------
agreement, upon thirty (30) days prior written notice, the term of this
Agreement may be extended for a period of two (2) additional years, on the same
terms and conditions as contained herein.
3
8. Indemnification.
---------------
So long as Valdez is not found by a court of law to be guilty of a willful
and material breach of this Agreement, or to be guilty of willful gross
misconduct, he shall be indemnified from and against any and all losses,
liability, claims and expenses, damages, or causes of action, proceedings or
investigations, or threats thereof (including reasonable attorney fees and
expenses of counsel satisfactory to and approved by Valdez) incurred by Valdez,
arising out of, in connection with, or based upon Valdez's services and the
performance of his duties pursuant to this Agreement, or any other matter
contemplated by this Agreement, whether or not resulting in any such liability;
and Valdez shall be reimbursed by 3SI as and when incurred for any reasonable
legal or other expenses incurred by Valdez in connection with investigating or
defending against any such loss, claim, damage, liability, action, proceeding,
investigation or threat thereof, or producing evidence, producing documents or
taking any other action in respect thereto (whether or not Valdez is a defendant
in or target of such action, proceeding or investigation).
9. Governing Law.
-------------
It is understood and agreed that the construction and interpretation of
this Agreement shall at all times and in all respects be governed by the laws of
the State of Colorado.
10. Severability.
------------
The provisions of this Agreement shall be deemed severable, and the
invalidity or unenforceability of any one or more of the provisions of this
Agreement shall not affect the validity and enforceability of the other
provisions.
11. Notice.
------
Any notice required to be given shall be sufficient if it is in writing and
sent by certified or registered mail, return receipt requested, first-class
postage prepaid, to his residence in the case of Valdez, and to its principal
office in the case of 3SI.
12. Entire Agreement; Cancellation of Prior Agreements.
---------------- --------------------------------
12.1 This Agreement contains the entire agreement and understanding by and
between 3SI and Valdez with respect to the employment of Valdez, and no
representations, promises, agreements, or understandings, written or oral, not
contained herein shall be of any force or effect. No change or modification of
this Agreement shall be valid or binding unless it is in writing and signed by
the party intended to be bound.
12.2 This Agreement replaces in its entirety Valdez's prior Employment
Agreement between Valdez and 3SI.
12.3 No waiver of any provision of this Agreement shall be valid unless it
is in writing and signed by the party against whom the waiver is sought to be
enforced. No valid waiver of any provision of this Agreement at any time shall
be deemed a waiver of any other provision of this Agreement at such time or at
any other time.
4
13. Burden and Benefit.
------------------
This Agreement (together with Valdez's stock options pursuant to 3SI's
stock option plans) shall be binding upon, and shall inure to the benefit of,
3SI and Valdez, and their respective heirs, personal and legal representatives,
successors, and assigns and shall be expressly binding upon and inure to the
benefit of any person or entity acquiring 3SI, by merger, consolidation,
purchase of assets or stock, or otherwise.
The duties of Valdez hereunder are not assignable by Valdez without the
prior written consent of 3SI, and the interests of Valdez hereunder are not
subject to the claims of his creditors, and may not be voluntarily or
involuntarily assigned, alienated or encumbered.
14. Termination.
-----------
14.1 By Valdez. Valdez may at his sole option, terminate this Agreement,
---------
upon ninety (90) days written notice to 3SI. Upon such termination by Valdez,
3SI shall have no further liabilities or obligations to Valdez hereunder; except
under Section 8 (Indemnification), and Valdez's only further liabilities to 3SI
shall be his covenants under Section 5 (Disclosure of Information), and Section
6 (Covenant not to Compete), which Sections shall survive termination of this
Agreement.
14.2 By 3SI. 3SI may terminate Valdez's employment hereunder during the
------
term or any extended term hereof only (1) in the event of Valdez's death or
disability, subject to the provisions of Section 4.2 above; or (2) "for cause,"
which shall be defined as "the failure of Valdez for any reason, within thirty
(30) days after receipt by Valdez of written notice thereof from 3SI, to
correct, cease, or otherwise alter any action or omission to act that
constitutes a material and willful breach of this Agreement likely to result in
material damage to the 3SI, or willful gross misconduct likely to result in
material damage to the 3SI." Upon such termination "for cause" under Section
14.2, 3SI shall have no further liabilities to Valdez, except under Section 8
(Indemnification), and Valdez's only further liabilities to 3SI shall be his
covenants under Section 5 (Disclosure of Information), and Section 6 (Covenant
Not to Compete), which Sections shall survive termination of this Agreement.
15. Counterparts.
------------
The Agreement may be executed in two or more counterparts, any one of which
shall be deemed the original without reference to the others.
IN WITNESS WHEREOF, 3SI and Valdez have duly executed this Agreement as of
the day and year first above written.
3SI:
ATTEST: 3SI, INC., a Colorado corporation
/s/ Felipe L. Valdez By: /s/ Frederick J. Slack
- ------------------------------ --------------------------------
Secretary President
VALDEZ:
/s/ Felipe Larry Valdez
----------------------------------------
FELIPE LARRY VALDEZ
5
Exhibit 97.10.12
SCHEDULE 4.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT is signed as of the 28th day of May, 1997, by and between
3SI, Inc., a Colorado corporation (hereinafter referred to as "3SI"), and Frank
W. Backes (hereinafter referred to as "Backes").
WITNESSETH THAT:
WHEREAS, Backes has been employed by 3SI as a full-time employee of 3SI;
and
WHEREAS, Backes' full-time employment will continue after 3SI's merger with
Tyrex Oil Company, a Wyoming corporation ("Tyrex") on or about May 31, 1997; and
WHEREAS, 3SI and Backes desire to state in writing the terms and conditions
of their agreements and understandings, and to continue the term of Backes'
employment on a full-time basis hereunder;
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises
herein contained, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending legally to
be bound, agree as follows:
1. Term of Employment.
------------------
The term shall commence on June 1, 1997, and shall continue through May 31,
2000, unless sooner terminated in accordance with the provisions of Paragraph
4.2 below.
2. Duties.
------
2.1 It is understood and agreed that Backes' principal duties on behalf of
3SI are and shall be as President and as a member of the Board of Directors, or
such additional responsibilities as may be mutually agreed by Backes and the
Board of Directors of 3SI.
2.2 Backes covenants and agrees that at all times during the term of this
Agreement, he shall devote his best efforts to his duties as an employee of 3SI;
provided, that he shall not be required to work on any set schedule or for any
set number of hours.
3. Compensation.
------------
3.1 Salary. As compensation for the services to be rendered by Backes for
------
3SI under this Agreement, including services as a director of 3SI, Backes shall
be paid the following annual salary, on the same basis (biweekly) as 3SI's
payroll, during the term hereof:
1
Term Salary
- ------------------------------------------------------------
1st Year (June 1, 1997-May 31, 1998) $110,000
2nd Year $120,000
3rd Year $125,000
[3.2 Bonus. The employee shall also be entitled to incentive bonuses as,
-----
when and if declared by the Board of Directors.]
4. Additional Benefits.
-------------------
In addition to, and not in limitation of, the compensation referred to in
Paragraph 3, Backes shall be paid the following additional benefits during the
term hereof:
4.1 Reimbursement. Reimbursement of all reasonable expenses incurred by
-------------
Backes in connection with performance of his duties, upon submission of
vouchers. Reasonable expenses shall include, but not be limited to all
reasonable out-of-pocket expenses for entertainment, automobile expenses,
travel, meals, lodging, professional dues and the like incurred by Backes in the
interest of 3SI, subject to such guidelines and policies as may be promulgated
by 3SI for senior executives.
4.2 Death or Disability Payments. In the event of Backes' disability or
----------------------------
death, prior to May 31, 2000, Backes' salary in effect at the time of his death
or disability shall continue to be paid to Backes, or to his designee, for a
period of twelve (12) calendar months from the date of death or from the date of
his termination by reason of disability. For the purposes of this Agreement,
the obligations of 3SI to make the payments upon the disability of Backes shall
not become effective unless and until all of the following conditions are met,
as determined by an independent physician selected by the Board of Directors of
3SI and agreed to by Backes: (1) Backes shall become physically or mentally
incapable (excluding infrequent and temporary absences due to ordinary
illnesses) of properly performing the services required of him in accordance
with his obligations under paragraph 2 hereof or similar provisions of any
renewal agreement; (2) such incapacities shall exist or be reasonably expected
to exist for more than ninety (90) days in the aggregate during the period of
twelve (12) consecutive months; and (3) either Backes or 3SI shall have given
the other thirty (30) days' written notice of his or its intention to terminate
the active employment of Backes because of such disability.
4.3 Life Insurance. Backes shall continue to be provided with the
--------------
existing $150,000 life insurance policy (the "Policy") during the term of this
Agreement. At the termination of this Agreement, Backes shall have the right,
at his option, to take over full payments on the Policy, and ownership of the
Policy.
4.4 Comparable Benefits. Backes shall also be provided with the same
-------------------
additional benefits comparable to other senior management Employees of 3SI,
including but not limited to health, dental, and disability insurance, Section
401(K) plan, and stock options, and shall be included in any 3SI bonus incentive
plan established from time to time, and shall receive holiday, sick leave, and
vacation benefits (4 weeks per year) on the same basis as is generally available
to all senior executives of 3SI. Backes shall be eligible for Stock Options on
the same basis as other directors of 3SI.
2
5. Disclosure of Information.
-------------------------
Backes acknowledges that in and as a result of his employment hereunder, he
will be making use of, acquiring, and/or adding to confidential information of a
special and unique nature and value relating to such matters as 3SI's trade
secrets, systems, procedures, manuals, confidential reports, and lists of
clients. As a material inducement to 3SI to enter into this Agreement and to
pay to Backes the compensation stated in Paragraph 3, as well as any additional
benefits stated in Paragraph 4, Backes covenants and agrees that he shall not,
other than in the ordinary course of business conducted for 3SI, at any time
during or following the term of his employment, directly or indirectly divulge
or disclose for any purpose whatsoever or appropriate to his own use or to the
use of others any confidential information that has been obtained by, or
disclosed to him, as a result of his employment by 3SI.
6. Covenant Not To Compete. Backes agrees that he shall not directly or
-----------------------
indirectly own, control, operate, manage, consult, own shares in, be employed
by, or otherwise participate in any sole proprietorship, corporation,
partnership or entity whose primary business is the same or similar to the
business of 3SI during the term of his employment hereunder, nor for a period of
one (1) year after his termination of employment, anywhere within the territory
in which 3SI does business; provided, that the Board of Directors shall have the
right (but not be required) to waive this covenant not to compete in writing,
with respect to any specific situation presented to them in advance, in writing
by Backes, where the Board of Directors, at their sole and absolute discretion,
deem Backes' intended participation not to be adverse to 3SI's interests.
The parties hereto recognize that Backes has been retained as a member of
the senior executive management of 3SI, and that in said position he is
considered to be part of the professional, management and executive staff of the
Corporation.
In the event Backes violates this covenant of non-competition, both parties
acknowledge and agree that 3SI shall have the right to bring a lawsuit to
enforce this covenant against Backes, and to obtain equitable relief in the form
of an injunction and, where applicable, damages at law; that the District Court
for El Paso County, Colorado shall have venue, and exclusive jurisdiction in
such lawsuit; and that Colorado law shall apply.
In the event 3SI must bring such a lawsuit by reason of Backes' breach of
this covenant of non-competition, 3SI shall be entitled to recover its
reasonable attorneys fees, costs, and expenses of litigation, in the event it
prevails in such lawsuit.
This covenant of non-competition has been negotiated and agreed to by and
between 3SI and Backes with full knowledge of, and pursuant to the requirements
of Section 8-2-113 (2) Colorado Revised Statutes, as amended from time to time,
and is deemed by both parties to be fair and reasonable under the terms of that
statute.
7. Option to Extend. At Backes' and 3SI's option, upon their mutual
----------------
agreement, upon thirty (30) days prior written notice, the term of this
Agreement may be extended for a period of two (2) additional years, on the same
terms and conditions as contained herein.
3
8. Indemnification.
---------------
So long as Backes is not found by a court of law to be guilty of a willful
and material breach of this Agreement, or to be guilty of willful gross
misconduct, he shall be indemnified from and against any and all losses,
liability, claims and expenses, damages, or causes of action, proceedings or
investigations, or threats thereof (including reasonable attorney fees and
expenses of counsel satisfactory to and approved by Backes) incurred by Backes,
arising out of, in connection with, or based upon Backes' services and the
performance of his duties pursuant to this Agreement, or any other matter
contemplated by this Agreement, whether or not resulting in any such liability;
and Backes shall be reimbursed by 3SI as and when incurred for any reasonable
legal or other expenses incurred by Backes in connection with investigating or
defending against any such loss, claim, damage, liability, action, proceeding,
investigation or threat thereof, or producing evidence, producing documents or
taking any other action in respect thereto (whether or not Backes is a defendant
in or target of such action, proceeding or investigation).
9. Governing Law.
-------------
It is understood and agreed that the construction and interpretation of
this Agreement shall at all times and in all respects be governed by the laws of
the State of Colorado.
10. Severability.
------------
The provisions of this Agreement shall be deemed severable, and the
invalidity or unenforceability of any one or more of the provisions of this
Agreement shall not affect the validity and enforceability of the other
provisions.
11. Notice.
------
Any notice required to be given shall be sufficient if it is in writing and
sent by certified or registered mail, return receipt requested, first-class
postage prepaid, to his residence in the case of Backes, and to its principal
office in the case of 3SI.
12. Entire Agreement; Cancellation of Prior Agreements.
---------------- --------------------------------
12.1 This Agreement contains the entire agreement and understanding by and
between 3SI and Backes with respect to the employment of Backes, and no
representations, promises, agreements, or understandings, written or oral, not
contained herein shall be of any force or effect. No change or modification of
this Agreement shall be valid or binding unless it is in writing and signed by
the party intended to be bound.
12.2 This Agreement replaces in its entirety Backes' prior Employment
Agreement between Backes and 3SI.
12.3 No waiver of any provision of this Agreement shall be valid unless it
is in writing and signed by the party against whom the waiver is sought to be
enforced. No valid waiver of any provision of this Agreement at any time shall
be deemed a waiver of any other provision of this Agreement at such time or at
any other time.
4
13. Burden and Benefit.
------------------
This Agreement (together with Backes' stock options pursuant to 3SI's stock
option plans) shall be binding upon, and shall inure to the benefit of, 3SI and
Backes, and their respective heirs, personal and legal representatives,
successors, and assigns and shall be expressly binding upon and inure to the
benefit of any person or entity acquiring 3SI, by merger, consolidation,
purchase of assets or stock, or otherwise.
The duties of Backes hereunder are not assignable by Backes without the
prior written consent of 3SI, and the interests of Backes hereunder are not
subject to the claims of his creditors, and may not be voluntarily or
involuntarily assigned, alienated or encumbered.
14. Termination.
-----------
14.1 By Backes. Backes may at his sole option, terminate this Agreement,
---------
upon ninety (90) days written notice to 3SI. Upon such termination by Backes,
3SI shall have no further liabilities or obligations to Backes hereunder; except
under Section 8 (Indemnification), and Backes' only further liabilities to 3SI
shall be his covenants under Section 5 (Disclosure of Information), and Section
6 (Covenant not to Compete), which Sections shall survive termination of this
Agreement.
14.2 By 3SI. 3SI may terminate Backes' employment hereunder during the
------
term or any extended term hereof only (1) in the event of Backes' death or
disability, subject to the provisions of Section 4.2 above; or (2) "for cause,"
which shall be defined as "the failure of Backes for any reason, within thirty
(30) days after receipt by Backes of written notice thereof from 3SI, to
correct, cease, or otherwise alter any action or omission to act that
constitutes a material and willful breach of this Agreement likely to result in
material damage to the 3SI, or willful gross misconduct likely to result in
material damage to the 3SI." Upon such termination "for cause" under Section
14.2, 3SI shall have no further liabilities to Backes, except under Section 8
(Indemnification), and Backes' only further liabilities to 3SI shall be his
covenants under Section 5 (Disclosure of Information), and Section 6 (Covenant
Not to Compete), which Sections shall survive termination of this Agreement.
15. Counterparts.
------------
The Agreement may be executed in two or more counterparts, any one of which
shall be deemed the original without reference to the others.
IN WITNESS WHEREOF, 3SI and Backes have duly executed this Agreement as of
the day and year first above written.
3SI:
ATTEST: 3SI, INC., a Colorado corporation
/s/ Felipe L. Valdez By: /s/ Frederick J. Slack
- ------------------------------ --------------------------------
Secretary President
BACKES:
/s Frank W. Backes
-----------------------------------
FRANK W. BACKES
5
Exhibit 97.21.
Subsidiaries of the Registrant
------------------------------
The Registrant has one subsidiary, Kimbrough Computer Sales, Inc. dba 3Si, Inc.,
a corporation organized under the laws of the State of Colorado.