EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), is made and entered into
as of the 3rd day of August, 1994, by and among Kinark Corporation, a Delaware
corporation ("Kinark") and The X.X. Xxxxxxx Inter Vivos Revocable Trust and The
Xxxx Xxxxxx Xxxxxxx Inter Vivos Revocable Trust (the "Trusts") through their
Interim Trustee, The Trust Company of Oklahoma (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Trusts currently own Six Hundred (600) shares of common
stock, $100 par value per share (the "Stock"), of Xxxxxx Galvanizing Company, a
Delaware corporation ("Xxxxxx"), representing approximately 51.2% of the issued
and outstanding common stock of Xxxxxx (any and all of the issued and
outstanding common stock of Xxxxxx shall be referred to as the "Common Stock")
and
WHEREAS, the Trusts are subject to the jurisdiction of the District Court
for the County of Tulsa, State of Oklahoma (the "Court"); and
WHEREAS, on June 15, 1990, the Trustee became the Trustee for the Trusts
and subsequently became the Interim Trustee for the Trusts on October 8, 1993,
which authorizes the Trustee to control the voting and disposition of the
Stock; and
WHEREAS, the Court has given the Trustee authority to market and negotiate
the sale of the Stock pursuant to an Order filed May 24, 1994, subject to the
Court's final approval of the sale; and
WHEREAS, the Trustee desires to sell to Kinark and Kinark desires to
purchase from the Trustee all, but not less than all, of the Stock owned by the
Trusts upon the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00), the premises and
mutual agreements contained herein and other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale. Subject to the terms and conditions of this Agreement,
the Trustee, on behalf of the Trusts, does hereby agree to transfer, convey and
sell to Kinark all of the Stock owned by the Trusts and hereby agrees to tender
to Kinark the stock certificates evidencing the Stock (endorsed in blank or
accompanied by share transfer powers endorsed in blank); such Stock being free
and clear of all liens, mortgages, pledges, security interests, voting
agreements, options, rights of first refusal (except as set forth in Section
2.4 hereof), charges, claims or other encumbrances, adverse claims or transfer
restrictions whatsoever, and Kinark hereby agrees to purchase such Stock.
1.2 Purchase Price. The purchase price for the Stock to be paid by Kinark to
the Trustee on behalf of the Trusts shall be Seven Thousand One Hundred and
No/100's ($7,100.00) Dollars per share or Four Million Two Hundred Sixty
Thousand and No/100's ($4,260,000.00) Dollars (the "Purchase Price").
1.3 Payment of Purchase Price. Kinark shall pay the Purchase Price as
follows:
(i) Kinark has deposited in an interest bearing account, with The Trust
Company Bank of Oklahoma, Attention: Xxxxxx X. Xxxxxxx, (the "Escrow
Agent"), an xxxxxxx money deposit in the sum of Fifty Thousand
Dollars and No/100's ($50,000.00) Dollars (the "Xxxxxxx Money
Deposit"). The Xxxxxxx Money Deposit will be held and released in
accordance with the terms of the Escrow Agreement attached hereto as
Exhibit "A". At the Closing (as defined in Section 4.1 hereof), the
Xxxxxxx Money Deposit shall be paid to the Trustee and shall be
credited to Kinark in partial satisfaction of the Purchase Price, and
any accrued interest thereon shall be returned to Kinark or credited
to Kinark in partial satisfaction of the Purchase Price. After the
expiration of the Due Diligence Period (as defined in Section 5.4
hereof) and except as otherwise provided herein: (i) in the event
Kinark is in default under this Agreement, the Xxxxxxx Money Deposit,
including any interest accrued thereon, shall belong to and be paid
to the Trustee as set forth in Section 6.3 hereof; and (ii) in the
event the Trustee is in default under this Agreement, the Xxxxxxx
Money Deposit, including any interest accrued thereon, shall belong
to and be paid to Kinark, unless Kinark, in its sole discretion,
notifies the Escrow Agent that Kinark will seek specific performance
of this Agreement; and
(ii) The balance in cash or in immediately available funds at Closing.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE TRUSTEE
As an inducement to Kinark to enter into this Agreement and to consummate
the transactions contemplated hereby, the Trusts and the Trustee in its
capacity as trustee for the Trusts, represent, warrant and covenant as follows:
2.1 Title to Stock. The Trusts each own Three Hundred (300) shares of Common
Stock of Xxxxxx for a total of Six Hundred (600) shares representing
approximately 51.2% of the One Thousand One Hundred and Seventy Two (1,172)
issued and outstanding Common Stock of Xxxxxx. The Trustee has good and
marketable title to all of the Stock, free and clear of any liens, mortgages,
pledges, security interests, voting agreements, options, rights of first
refusal (except as set forth in Section 2.4 hereof) charges, claims,
encumbrances, restrictions, adverse claims and other defects in title. The
Trusts are not currently parties to and, prior to Closing will not enter into,
any agreement, arrangement or understanding which would restrict the right of
Trusts to vote, pledge, sell or otherwise dispose of the Stock or of Kinark's
right to own the Stock.
2.2 Authority of the Trustee. This Agreement and its execution and delivery
and performance have been authorized by all requisite action on the part of the
Trustee and the Trusts. The Trustee has full power and authority to make,
execute, deliver and perform this Agreement and the transactions contemplated
hereby. When this Agreement is executed and delivered by the Trustee, it shall
constitute a valid and binding obligation of the Trusts except as it may be
subject to or limited by applicable equitable principles or by bankruptcy,
insolvency, reorganization, moratorium or similar laws in effect from time to
time.
2.3 No Legal Proceedings. Except as set forth on Schedule 2.3, there is no
action, suit, claim or proceeding, pending or, to the Trustee's knowledge,
threatened against, the Trustee or the Trusts which would adversely affect the
Trustee's or Trusts' ability to perform its obligations under this Agreement.
2.4 Consents. Except as set forth on Schedule 2.4, the performance of this
Agreement by the Trustee and the Trusts will not conflict with or result in any
material breach or violation of (i) any contract or commitment to which the
Trustee or the Trusts are a party or by which either is bound with respect to
the Stock; or (ii) any law, statute, ordinance, regulation or decree of any
governmental, regulatory or judicial body or entity. Schedule 2.4 contains a
list of persons, if any, whose consent is necessary in order for the Trustee to
consummate the transactions contemplated by this Agreement, including, without
limitation, the Court, which has jurisdiction over the Trustee's disposition of
the Stock and any federal, state or local governmental authorities or
regulatory agencies having jurisdiction over the Trustee, the Stock, or the
Trusts.
2.5 No Brokers. There are no brokers, finders, or other consultants acting on
behalf of, or at the request of, the Trustee in this transaction. The Trusts
shall indemnify and hold Kinark harmless from and against any claims for such
fees resulting from the purchase and sale hereunder.
2.6 Survival of Representations, Warranties and Covenants. The warranties,
representations and covenants of the Trustee contained in this Agreement shall
be true and correct as of the Closing Date in all material respects with the
same force and effect as if given and made on and as of the date and time of
Closing, and such representations, warranties and covenants shall survive the
Closing and the consummation of the transactions contemplated by this Agreement
for the period set forth in Article VII.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF KINARK
As an inducement to the Trustee to enter into this Agreement shall
consummate the transactions contemplated hereby, Kinark represents and warrants
as follows:
3.1 Corporate Organization. Kinark is a corporation duly organized and
validly existing under the laws of the State of Delaware. Kinark has full
corporate power to own or lease its properties and to carry on its businesses
in the places where such properties are now owned, leased or operated, and as
such businesses are now conducted.
3.2 Due Authorization and Corporate Authority. This Agreement and its
execution, delivery and performance have been authorized by all requisite
corporate action on the part of Kinark, Kinark has full corporate power and
authority to make, execute, deliver and perform this Agreement without the
necessity of any act or consent of any other person, except as disclosed in
Schedule 3.2 hereto. When this Agreement is executed and delivered by Kinark,
it shall constitute a valid and binding obligation of Kinark except as it may
be subject to or limited by applicable equitable principles or by bankruptcy,
insolvency, reorganization, moratorium or similar laws in effect from time to
time.
3.3 Consents. Except as set forth on Schedule 3.2, the performance of this
Agreement by Kinark will not conflict with or result in the material breach or
violation of (i) Kinark's bylaws or articles of incorporation, or (ii) any law,
statute, ordinance, regulation or decree of any governmental, regulatory or
judicial body or entity, or (iii) any contract or commitment to which it is a
party or by which it is bound. Schedule 3.2 contains a list of persons, if
any, whose consent is necessary in order for Kinark to consummate the
transactions contemplated by this Agreement.
3.4 No Legal Proceedings. There is no action, suit, claim, or proceeding,
pending, or to Kinark's knowledge, threatened against, Kinark which would
adversely affect Kinark's ability to perform its obligations under this
Agreement.
3.5 No Brokers. There are no brokers, finders, or other consultants acting on
behalf of, or at the request of, Kinark in this transaction except for its
financial advisor, Xxxxxxxx Xxxxxx Refsnes, Inc, Kinark shall indemnify and
hold the Trustee and the Trusts harmless from and against any claims for such
fees resulting from the purchase and sale hereunder.
3.6 Survival of Representations and Warranties. The warranties,
representations and covenants of Kinark contained in this Agreement shall be
true and correct in all material respects as of the Closing Date with the same
force and effect as if given and made on and as of the date and time of
Closing, and such representations, warranties and covenants shall survive the
Closing and the consummation of the transactions contemplated by this Agreement
for the period set forth in Article VII.
3.7 Kinark's Plan for Xxxxxx. Kinark plans to improve the longterm
profitability of Xxxxxx for the benefit of Kinark, Xxxxxx and their
stockholders, and Kinark intends to effect certain changes at Xxxxxx designed
to increase Xxxxxx' profitability. Kinark shall seek to cause the Xxxxxx Board
of Directors to continue to pay the normal monthly dividends ($16.00 per month
per share) to the Xxxxxx minority stockholders between the Closing and the
Offer Closing (as those terms are defined herein).
3.8 No Registration Statement Required. Kinark acknowledges and agrees that
the Stock to be delivered to Kinark pursuant to the provisions of this
Agreement will not be registered under the Securities Act of 1933, as amended
(the "1933 Act") or any applicable "Blue Sky" laws, in reliance upon the
exemptions contained in the 1933 Act and the rules and regulations promulgated
thereunder and applicable "Blue Sky" laws and rules or regulations promulgated
thereunder.
ARTICLE IV
CLOSING
4.1 Place, Time and Date of Closing. The deliveries, and payments required to
be made at Closing, contemplated by this Agreement shall be made at the offices
of The Trust Company of Oklahoma, 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx,
00000 at 10:00 a.m., local time, (i) on or before forty-five (45) days from the
date that the Court has entered an order approving the purchase and sale of the
Stock as contemplated herein and such order is no longer subject to appeal; or
(ii) at such other place, time and date as Kinark and the Trustee shall agree.
The date on which the last of the payments required to be made at Closing and
deliveries occurs is the "Closing Date" and such payments and deliveries
constitute the "Closing". Failure to close the transactions contemplated by
this Agreement on the date specified in the first sentence of this Section 4.1
shall not in and of itself constitute a reason for a party to terminate this
Agreement, termination being governed by Article VI of this Agreement, and so
long as this Agreement is not so terminated, the parties shall continue in good
faith to undertake to consummate the transactions contemplated in this
Agreement as soon as reasonably practicable.
4.2 Deliveries by the Trustee. The Trustee hereby agrees to, and shall,
deliver or cause to be delivered to Kinark at the Closing the following, each
of which shall be in form and substance reasonably satisfactory to Kinark:
(a) Share Certificates. Share certificates representing the Stock as
provided in Section 1.1 hereof.
(b) Authorization Certificates. A certificate dated the Closing Date and
executed by the Trustee or other authorized representative of the Trusts (i)
certifying and setting forth the action taken to authorize (or provisions of
agreements or applicable law authorizing) the execution and delivery of this
Agreement and any other certificates, agreements or other instruments and
documents executed and delivered by the Trustee or the Trusts pursuant to this
Agreement; the consummation of the transactions contemplated by them; and any
other compliance with or performance under them; and (ii) certifying that such
action is still in full force and effect and that it is all the action taken
and required to be taken by the Trustee and the Trusts in connection with the
transactions contemplated by this Agreement.
(c) Bringdown and Incumbency Certificate. A certificate dated the Closing
Date and executed by the Trustee or other authorized representative of the
Trusts (i) stating that the representations and warranties of the Trustee on
behalf of the Trusts contained in Article III are true and correct in all
material respects on and as of the Closing Date, with the same effect as if
such representations and warranties had been made on and as of such date (or if
not, in what respects they are not); and that the covenants and agreements to
be performed or complied with by the Trustee prior to or at the Closing have
been performed and complied with in all material respects (or if not, in what
respects they have not), unless waived in writing by Kinark; and (ii) setting
forth the names and titles of the Trustee or other authorized representatives
of the Trusts executing this Agreement and the other agreements, instruments
and documents executed and delivered by the Trustee or the Trusts pursuant to
this Agreement.
(d) Court Order. The sale contemplated herein is expressly conditioned
upon the entry of an order (or orders) by the Court approving this Agreement,
the transactions and processes set forth in this Agreement, and the sale of the
Stock. The form of the order(s) presented to the Court shall have been
approved by Kinark, which approval will not be unreasonably withheld. The
Trusts shall provide Kinark a copy of the filed order(s) prior to Closing and
an opinion of Oklahoma counsel that such order(s) is (are) not appealable. The
Trusts shall also provide Kinark prior to closing with a certified copy of the
minutes of the Trusts authorizing and approving the sale contemplated hereby or
an opinion of Oklahoma counsel that such actions are not required to authorize
and approve the sale contemplated hereby.
(e) Other Documents. Such other documents and certificates as Kinark may
reasonably request in order to document more effectively the transactions
contemplated by this Agreement or in order to evidence the compliance by the
Trustee with any condition of this Agreement.
(f) Opinion Letter. An opinion letter provided by Morrel, West, Xxxxx,
Xxxxxx & Xxxxx, Inc., counsel to the Trusts and the Trustee, in a form
reasonably satisfactory to Kinark, which relies on counsel to the Trusts and
the Trustee with respect to certain matters of law.
4.3 Deliveries by Kinark. Kinark hereby agrees to, and shall, deliver and pay
or cause to be delivered and paid to the Trustee on behalf of the Trusts the
following, each of which shall in form and substance reasonably satisfactory to
the Trustee;
(a) Purchase Price. The Purchase Price as set forth in Section 1.3
hereof.
(b) Due Authorization Certificates. A certificate dated the Closing Date
and executed by an officer or authorized representative of Kinark (i)
certifying and setting forth the action taken to authorize the execution and
delivery of this Agreement and any other certificates, agreements or other
instruments or documents executed and delivered by Kinark pursuant to this
Agreement; the consummation of the transactions contemplated by them and any
other compliance with or performance under them; and (ii) certifying that such
corporate action is still in full force and effect and that it is all the
action adopted and required to be adopted by Kinark in connection with the
transactions contemplated by this Agreement.
(c) Bringdown and Incumbency Certificate. A certificate dated the Closing
Date and executed by an officer of Kinark (i) stating that the representations
and warranties of Kinark contained in Article III are true and correct in all
material respects on and as of the Closing Date, with the same effect as if
such representations and warranties had been made on and as of such date (or if
not, in what they are not); and that the covenants and agreements to be
performed or complied with by Kinark prior to or at the Closing have been
performed and complied with in all material respects (or if not, in what
respects they have not), unless waived in writing by the Trustee; and (ii)
setting forth the names and titles of the officers of Kinark executing this
Agreement and the other agreements, instruments and documents executed and
delivered by Kinark pursuant to this Agreement.
(d) Certificate of Existence. A certificate from the Secretary of State
of the State of Delaware dated no earlier than ten (10) days prior to the
Closing, certifying the continuing corporate existence of Kinark.
(e) Other Documents. Such other documents and certificates as the
Trustee may reasonably and timely request in order to document more effectively
the transactions contemplated by this Agreement or in order to evidence the
compliance by Kinark with any condition of this Agreement.
(f) Opinion Letter. An opinion letter provided by Nelson, Mullins, Xxxxx
& Scarborough, counsel to Kinark, in a form reasonably satisfactory to the
Trustee of the Trusts which relies on counsel to Kinark with respect to certain
matters of law.
4.4 Conditions Precedent to obligations of Kinark. All of the obligations of
Kinark to make the deliveries and payments contemplated by Section 4.3 of this
Agreement are subject to the fulfillment prior to or at the Closing of each of
the following conditions, any one or more of which may be waived by Kinark in
whole or in part, and if so waived, are waived for all purposes:
(a) Representations, Warranties, and Covenants. The representations and
warranties of the Trustee contained in this Agreement shall be true and correct
in all material respects as of the date when made, shall be deemed to be made
again at and as of the Closing and shall be true in all material respects at
and as of the Closing and the Trustee shall have performed or complied in all
material respects with all material obligations, covenants and agreements
required by this Agreement to be performed or complied with by the Trustee on
or before the Closing.
(b) Deliveries. The delivery to Kinark of those items listed in Section
4.2 hereof in form and substance reasonably satisfactory to Kinark.
(c) Consents Obtained. All authorizations, consents and approvals of the
Stockholders of Kinark to authorize the Preferred Stock (as directed in Section
10.3 hereof) and of the Court or any governmental or public unit, agency, body,
authority or governmental or public official or entity, including but not
limited to the Federal Trade Commission and the Securities and Exchange
Commission, necessary for the valid consummation of the transactions
contemplated hereby shall have been obtained and shall be in full force and
effect; provided, however, that if the Trustee has used its reasonable best
efforts but has been unable to obtain the Court's approval of the transactions
contemplated by this Agreement, the Trustee shall be entitled to terminate this
Agreement, without penalty or damage, and Kinark shall receive the Xxxxxxx
Money Deposit and any interest accrued thereon.
(d) No Challenge to Transaction. No injunction shall have been issued
against the Trustee or the Trusts or Kinark enjoining the consummation of the
transactions contemplated by this Agreement, and no action, proceeding,
investigation, regulation or legislation shall have been instituted, by any
governmental or public unit, agency, body, authority or other governmental or
public officer or entity before the Court or any other court, governmental or
public unit, agency, body or authority or legislative body that has not been
withdrawn, dismissed, rescinded, dissolved or otherwise eliminated on or before
the Closing Date, to enjoin, restrain, delay, prohibit or obtain material
damages (i) with respect to, or which is related to, or arises out of, this
Agreement or the consummation of the transactions contemplated hereby; or (ii)
which, in the reasonable judgment of Kinark, would have an adverse effect on
the Stock.
(e) Material Changes to Xxxxxx After the Due Diligence Period. No
changes listed in Section 6.5 to Xxxxxx shall have occurred, except as
specifically contemplated by Section 6.5.
(f) Auction. Kinark acknowledges that this Agreement is subject to the
approval of the Court after the filing by the Trustee of a Return of Sale for
both Trusts and after a published public notification (the "Court Approval").
The terms of the Court Approval below and the terms of Article VIII hereof are
also subject to approval by the Court. The obligations of Kinark to Close as
contemplated by Section 4.3 hereof are subject to the condition that the Court
Approval shall be conducted according to the following terms and that no bid
that competes with Kinark's offer, if any, to purchase the Stock (each a
"Competing Bid") shall be recommended by the Trustee for the Court's acceptance
or approval except upon the following terms (the "Bidding Process"):
(i) The first Competing Bid shall provide for aggregate consideration of
at least ten percent (10%) plus the costs of a new sale (estimated to
be $115,000,00) over the Purchase Price on the terms set forth in
Article I hereof, All Competing Bids shall be for cash and no other
form of consideration;
(ii) Each additional Competing Bid shall provide for aggregate
consideration of at least two percent (2%) of the Purchase Price
above the last Competing Bid;
(iii) Within three (3) days before the Court Approval hearing, if not
sooner pursuant to the terms of Section 8.1. all proponents of
Competing Bids ("Competing Bidders") shall be required to deposit as
an xxxxxxx money deposit at least $50,000.00 in cash or by bank
cashier's check as directed by the Trustee;
(iv) All Competing Bidders shall be required to enter into an agreement to
buy the Stock on substantially the same terms as this Agreement,
except this Section 4.4(f), Article VIII, and all the due diligence
rights of the purchaser herein shalt not be included in said
agreement;
(v) All Competing Bidders must have completed their due diligence before
midnight on the third day preceding the Court Approval hearing; and
(vi) All Competing Bidders must prove to the Trustee's and the Trusts'
satisfaction their financial ability to pay the purchase price at
Closing.
4.5 Conditions Precedent to obligations of the Trusts. All of the obligations
of the Trusts to make the deliveries contemplated by Section 4.2 of this
Agreement are subject to the fulfillment prior to or at the Closing of each of
the following conditions, any one or more of which may be waived by the Trustee
in whole or in part, and if so waived, are waived for all purposes:
(a) Representations, Warranties, and Covenants. The representations and
warranties of Kinark contained in this Agreement shall be true and correct in
all material respects as of the date when made, shall be deemed to be made
again at and as of the Closing and shall be true in all material respects at
and as of the Closing and Kinark shall have performed or complied in all
material respects with all material obligations, covenants and agreements
required by this Agreement to be performed or complied with by Kinark on or
before the Closing.
(b) Deliveries. The delivery to the Trustee of the Purchase Price and
those items listed in Section 4.3 hereof in form and substance reasonably
satisfactory to the Trustee.
(c) Consents Obtained. All authorizations, consents and approvals of the
Court or any governmental or public unit, agency, body, authority or
governmental or public official or entity necessary for the valid consummation
of the transactions contemplated hereby shall have been obtained and shall be
in full force and effect.
(d) No Challenge to Transaction. No injunction shall have been issued
against the Trustee or the Trusts or Kinark enjoining the consummation of the
transactions contemplated by this Agreement, and no action, proceeding,
investigation, regulation or legislation shall have been instituted, by any
governmental or public unit, agency, body, authority or other governmental or
public officer or entity, including but not limited to the Federal Trade
Commission and the Securities and Exchange Commission, before the Court or any
other court, governmental or public unit, agency, body or authority or
legislative body that has not been withdrawn, dismissed, rescinded, dissolved
or otherwise eliminated on or before the Closing Date, to enjoin, restrain,
delay, prohibit or obtain material damages (i) with respect to, or which is
related to, or arises out of, this Agreement or the consummation of the
transactions contemplated hereby; or (ii) which, in the reasonable judgment of
the Trustee, would have an adverse effect on the Stock or the Trusts.
ARTICLE V
DUE DILIGENCE
5.1 Access to Records. Between the date of this Agreement and the Closing
Date, the Trustee agrees to give Kinark, and its attorneys, auditors and other
representatives, such access to the books and records of the Trusts (strictly
to the extent such records relate to Trust's ownership of the Stock) and Xxxxxx
as Kinark, or its attorneys, auditors or representatives shall from time to
time reasonably request. The Trustee will permit representatives of Kinark or
its counsel, auditors or representatives, as often as reasonably requested,
during business hours to inspect such documents, records and materials and to
discuss with the Trustee's, the Trusts" and Roger's representatives, officers
or employees, the business, assets, liabilities, financial condition, results
of operations and any other matters relating to Xxxxxx as the Trustee or the
Trusts have available, to the extent that such actions do not violate any
agreement with Xxxxxx concerning the confidentiality of the information.
5.2 Confidential Nature of Information. Kinark and the Trustee (on behalf of
itself, the Trusts and the Trusts' beneficiaries) each hereby agrees not to
make any public disclosure concerning the subject matter of this Agreement or
the consideration of the transactions contemplated hereby except in accordance
with Section 5.3 hereof. Kinark agrees to use the information it obtains from
the Trustee or the Trusts in the course of its due diligence investigation only
for the purposes of evaluating the transactions contemplated hereby, Kinark and
the Trustee agree that, in the event the transactions contemplated hereby are
not consummated, each party will treat in confidence all documents, materials
and other information that each party shall have obtained from the other party
regarding Xxxxxx or the Trustee or the Trusts, on the one hand, or Kinark, on
the other hand, during the course of the negotiations of the transactions
contemplated hereby, the investigation by Kinark of Xxxxxx, and the preparation
of this Agreement, and shall return to the other party all copies of non-public
documents and materials that have been furnished in connection therewith.
However, nothing contained herein shall prohibit either party from (i) using
such documents, materials or other information in connection with any action or
proceeding brought or any claim asserted by the other party with respect to any
breach of any representation, warranty or covenant made in or pursuant to this
Agreement or (ii) supplying or filing (with the prior written consent of the
other party, which consent shall not be unreasonably withheld) such documents,
materials or other information with any federal, state or local government
agency or authority that such party reasonably deems necessary. This Section
5.2 supersedes all previous understandings between the parties concerning
confidential information including the Confidentiality Agreement executed July
1, 1994.
5.3 Press Releases and Public Filings. Prior to the Closing Date, any public
filings (including filings in the Court, the official Tulsa County Newspaper
and with the Securities and Exchange Commission) and any written news releases
by any party hereto pertaining to this Agreement or the transactions
contemplated hereby shall be submitted to the other party hereto for review and
approval prior to such filing or release, and shall be filed or released only
in a form approved by such other party; provided, however, that (i) such
approval shall not be unreasonably withheld, conditioned or delayed, and (ii)
such review and approval shall not be required of public filings or news
releases by Kinark or the Trustee if prior review and approval would prevent
the timely and accurate dissemination of such public filing or release as would
be required to comply, in the judgment of counsel, with any applicable law,
regulation, exchange rule or policy.
5.4 Due Diligence Period. Kinark shall have the opportunity to inspect the
documents and materials relating to the Stock, the Trusts, (as the owner of the
Stock), and Xxxxxx, which is obtained from Xxxxxx, for a due diligence period
that shall end on midnight of the third day preceding the Court Approval
hearing (discussed in Article VIII) (the "Due Diligence Period"). After the
Court Approval hearing but before the Closing, Kinark shall have a continuing
right to request information about Xxxxxx and the Stock on the terms set forth
in this Agreement.
ARTICLE VI
TERMINATION
6.1 Circumstances of Termination. This Agreement may be terminated in the
following circumstances:
(a) In the event the termination circumstances of Sections 4.4(c), 6.4,
6. 5, 8.2, 11.8 or 11.11 occur, as provided in the applicable sections;
(b) The mutual agreement of the parties hereto;
(c) In the event the Closing begins or otherwise would occur and Kinark
is not obligated to close pursuant to Section 4.4 or the Trustee is not
obligated to close pursuant to Section 4.5, then Kinark or the Trustee, as the
case may be, may terminate this Agreement at such time;
(d) Forty-five (45) days from the date that the Court's approval of this
Agreement is unappealable; unless a third party has initiated litigation on or
before such date with respect to this Agreement or the transactions
contemplated hereby, in which event this Agreement shall not terminate until
sixty (60) days after the resolution of such litigation;
(e) If the Court does not approve the Bidding Process as provided in
Section 4.4(f) hereof and Article VIII; or
(f) If Kinark does not tender the Purchase Price to the Trustee on or
prior to the Closing, pursuant to Sections 4.3 and 4.5.
6.2 Effect of Termination. In the event of termination of this Agreement
pursuant to Section 6.1(a), 6.1(b), 6.1(d) or 6.1(e), this Agreement shall be
deemed thenceforth null and void and no party hereto shall have any obligation
or liability by reason of this Agreement and Kinark shall receive the Xxxxxxx
Money Deposit and any interest accrued thereon.
6.3 Remedies Upon Termination. If the purchase and sale contemplated by this
Agreement is not consummated due to Kinark's default as set forth in Section
6.1(c) or 6.1(f), the Trustee shall have the right to receive the Xxxxxxx Money
Deposit and any interest accrued thereon as liquidated damages and not as a
penalty. If the purchase and sale contemplated by this Agreement is not
consummated due to the Trustee's default as set forth in Section 6.1(c) or
6.1(f), Kinark may pursue its rights to specific performance or the return of
the Xxxxxxx Money Deposit and any interest accrued thereon as provided in
Section 1.3 hereof.
6.4 Due Diligence Termination. Notwithstanding any other provision of this
Agreement, at the end of the Due Diligence Period, Kinark shall have the right
to terminate this Agreement as a result of its due diligence review. If Kinark
exercises its right under this Section, Kinark shall receive the Xxxxxxx Money
Deposit and any interest accrued thereon, The Trustee agrees to use its best
efforts to deliver or cause to be delivered to Kinark all due diligence
materials reasonably requested by Kinark at least twenty-one (21) business days
before the end of the Due Diligence Period.
6.5 Changes to Xxxxxx after the Execution of this Agreement. After the
execution of this Agreement but before the Closing, the Trusts and the Trustee
agree to use their reasonable best efforts as a stockholder of Xxxxxx and the
Trusts' representative, respectively, to maintain intact the business and
affairs of Xxxxxx on a basis consistent with the historical practices of
Xxxxxx. Kinark shall be given the right (but shall not be required to exercise
that right) to terminate this Agreement upon three (3) days written notice to
the Trusts and the Trustee and receive a return of the Xxxxxxx Money Deposit,
and all accrued interest, in the event that any of the following occurs to
Xxxxxx after the execution of this Agreement but before the Closing:
(a) a change in its articles of incorporation not reasonably acceptable
to Kinark;
(b) a change in its bylaws not reasonably acceptable to Kinark;
(c) a monthly review of any reduction of gross revenues of 20% in any
trailing three (3) month period compared to the previous three (3) month
period;
(d) a monthly review of any increases in the expenses for operations and
general and administrative costs in any trailing three (3) month period
compared to the previous three (3) month period of more than 15% from the
previous month;
(e) any extraordinary dividend to stockholders of Xxxxxx other than the
normal monthly dividends ($16,00 per share per month) approved by the Board of
Directors of Xxxxxx;
(f) any new issuance of Xxxxxx shares (of whatever class or kind);
(g) any additional long-term liabilities exceeding $25,000.00 over the
amounts of debt shown on Xxxxxx' third quarter unaudited statements for the
current fiscal year (the "Third Quarter Financials") not heretofore previously
approved by the Board of Directors of Xxxxxx;
(h) any aggregate sale of assets exceeding $25,000.00 other than work-in-
progress;
(i) any changes of the trustee of either Trust or any changes to the
Board of Directors of Xxxxxx not reasonably acceptable to Kinark;
(j) any reduction in the amount of current assets minus current
liabilities (net current assets) of Xxxxxx exceeding $25,000.00 over the
amounts shown on the Third Quarter Financials not heretofore previously
approved by the Board of Directors of Xxxxxx;
(k) any material transaction with management or an affiliate of
management, including but not limited to the payment of any bonuses (other than
those bonuses provided for by contract with management entered into before July
19, 1994) or salary increases to the employees of Xxxxxx not reasonably
acceptable to Kinark;
July 19, 1994, with any employee or director of Xxxxxx; and
(m) any filing of an involuntary or voluntary petition under the
bankruptcy laws or state insolvency laws.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 Representations, warranties and Covenants of the Trusts. The
representations, warranties and covenants contained in any certificate or other
document delivered pursuant hereto or in connection herewith of the Trustee on
behalf of the Trusts shall survive the Closing for a period of two (2) years.
7.2 Representations, Warranties and Covenants of Kinark. The representations,
warranties and covenants contained herein or in any certificate or other
document delivered pursuant hereto or in connection herewith of Kinark shall
survive the Closing for a period of two (2) years.
ARTICLE VIII
BIDDING PROCESS AND PROTECTION FOR KINARK
8.1 Acceptance of Bidding Process. The Trustee agrees that the terms of the
Bidding Process are acceptable to it. The Trustee agrees to apply to the Court
prior to the filing of the Return of Sale for the approval of the Bidding
Process, as set forth in Section 4.4(f) hereof, and of the protection of Kinark
set forth below. If the Court does not approve the Bidding Process and the
protection of Kinark below, Kinark shall be entitled to either accept the
Court's alternative terms or to terminate this Agreement pursuant to Section
6.2 hereof. The Trustee agrees to file with the Court a Return of Sale for the
approval of this Agreement and the proposed sale of the Stock. Upon Court
approval of the Bidding Process, the exclusivity of negotiation with Kinark
shall expire to the extent necessary to allow prospective purchasers to comply
with the Bidding Process (e.g. access to requested due diligence materials and
information related to the auction as set forth in Section 4.4(f), hereof)
after payment to an escrow agent designated by Trustee of Fifty Thousand
Dollars ($50,000.00) in cash in accordance with Section 4.4(f)(iii).
8.2 Protection for Kinark. If a Competing Bid is approved by order of the
Court pursuant to the Court's Approval process described in Section 4.4(f)
hereof, Kinark shall be paid an amount equal to:
(i) A return of Kinark's Xxxxxxx Money Deposit together with any accrued
interest thereon;
(ii) Kinark's actual and reasonable documented out-of-pocket expenses
incurred in connection with the preparation of this Agreement and the
acquisition of the Stock as contemplated by this Agreement, including
without limitation, legal, accounting, consulting and financing fees
and expenses, up to $100,000.00; and
(iii) An amount equal to twenty-five (25%) percent of the amount by which
the final Competing Bid exceeds the Purchase Price, including any
Competing Bid made by Kinark, deducting Kinark's expense
reimbursement set forth in the preceding paragraph from the final
Competing Bid amount.
8.3 Timing of Payments to Kinark. If a Competing Bid is approved by order of
the Court, the return of the Xxxxxxx Money Deposit set forth in Section 8.2(i)
shall be made immediately and in no case later than three (3) business days
following the auction described in Section 4.4(f). The payment to Kinark
contemplated in Sections 8.2(ii) and (iii) shall be made upon the Closing by
the Competing Bidder of the purchase of the Stock.
ARTICLE IX
CREATION OF ADVISORY BOARD
After the Closing and so long as there remain outstanding shares of Xxxxxx
held by minority stockholders, Kinark shall support an amendment to the Xxxxxx
Bylaws to form an Advisory Board to the majority stockholder of the Stock, or
its successor. Upon their resignation from the present Xxxxxx Board of
Directors and after the Closing, the initial members of the Advisory Board
which Kinark shall nominate are Xxx Xxxxxxx Sterling and Xxxxx Xxxxxx. Subject
to their willingness to serve on the Advisory Board, each such advisory board
member shall be paid Twenty-four Thousand ($24,000.00) Dollars per year and
serve an initial appointed term of two (2) years. As a condition to serving on
the Advisory Board, Advisory Board members shall be required to own Xxxxxx
Common Stock or Kinark Preferred Stock.
ARTICLE X
OFFER TO THE MINORITY SHAREHOLDERS
TO PURCHASE XXXXXX SHARES
10.1 Kinark offer. Upon the expiration of the appeal period to the Court's
Approval order, Kinark shall offer to purchase all of tile remaining Five
Hundred Seventy-two (572) outstanding shares of the Xxxxxx Common Stock owned
by the minority stockholders of Xxxxxx (the "Offer").
10.2 Offer Period and offer Closing. The offer made pursuant to Section 10.1
shall be exercisable by the minority stockholders beginning on the date of any
expiration of the appeal period to the Court's Approval and continuing for
thirty (30) days thereafter (the "Offer Period"). The Offer shall be closed
ninety (90) days from the date that the Court has entered an order approving
the purchase and sale of the Stock as contemplated herein and such order is no
longer subject to appeal (the "Offer Closing").
10.3 Purchase the Minority Stock. Upon the subscription election of each
minority stockholder of Xxxxxx, Kinark shall pay to the minority stockholders
of Xxxxxx who exercise the offer during the Offer Period either:
(i) Cash to be paid at the Offer Closing of Seven Thousand One Hundred
and No/100 Dollars ($7,100.00) per share of Xxxxxx Common Stock
(subject to adjustment as set forth in Section 10.5 below); or
(ii) One share of Kinark convertible cumulative preferred stock (the
"Preferred Stock") for each share of Xxxxxx common Stock tendered to
Kinark during the Offer Period. The Preferred Stock may be a tax-
free exchange (see below) for Xxxxxx Common Stock and will pay annual
dividends that will be 150% of the average annual per share dividend
paid by Xxxxxx on its Common Stock for each of the past two (2)
years, The Preferred Stock shall be convertible into Kinark Common
Stock at specified prices, will be callable at specified times for
specified prices and will be subject to other terms and conditions as
set forth in a subsequent offer that will be made to the Xxxxxx
stockholders (the "Preferred Stock Offering").
10.4 Exchange Terms and Delivery of the Preferred Stock. The Preferred Stock
will be exchanged for the Xxxxxx Common Stock upon the conditions set forth in
the Preferred Stock Offering. The delivery of the Preferred Stock is subject
to the terms of the Preferred Stock Offering and should be delivered upon the
later of the Offer Closing or with ten (10) days after Kinark receives all
Kinark stockholder and governmental (including Securities and Exchange
Commission and State Blue Sky) approvals. All the terms of the Offer discussed
in this Section 10 are subject to change and the exact terms of the offer shall
be set forth in the Preferred Stock Offering documents to be delivered to the
Xxxxxx minority stockholders at a later date. Nothing herein should be
construed as an offer to purchase the Xxxxxx Common Stock from the Xxxxxx
minority stockholders; an offer to purchase said Common Stock may only be made
by and pursuant to the Preferred Stock Offering documents.
10.5 Adjustment to the Offer Price. If an auction is conducted pursuant to
Section 4.4(f) and the consideration paid for the Stock is increased, then the
per share cash price of the offer shall be increased to the Xxxxxx minority
stockholders to an amount equal to the per share price paid for the Stock. A
negative adjustment will be made to the per share cash price paid to the
minority stockholders in the Offer equal to 48.81% of all payments made by
Trustee to Kinark pursuant to Section 8.2 (ii) and (iii) hereof. Such negative
adjustment shall be withheld from the amounts paid to the Xxxxxx minority
stockholders and thereafter paid to Trustee by the highest Competing Bidder.
10.6 Fairness and Support of the Xxxxxx Minority Stockholders. The Trusts and
the Trustee agree that the Offer is a fair offer to the Xxxxxx minority
stockholders and the Offer is equal to or the equivalent of Kinark's Purchase
Price for the Stock on a per share basis. If the Xxxxxx minority stockholders
subscribe in the offer for forty (40%) percent or more of the outstanding
Xxxxxx Common Stock to be purchased in exchange for the Preferred Stock, then
the Trustee, on behalf of the Trusts, agrees to take all reasonable steps
necessary to cause the Xxxxxx minority stockholders to be able to exchange
their Xxxxxx Common Stock for the Preferred Stock on a tax-free basis,
including but not limited to agreeing to vote the Stock for a merger between
Xxxxxx and Kinark.
ARTICLE XI
MISCELLANEOUS
11.1 Expenses. Each of the parties hereto shall pay its own expenses incurred
in the negotiation and consummation of the transactions contemplated by this
Agreement, except as to Kinark if Section 8.2 is applicable.
11.2 Further Action. Each of the parties hereto shall execute such documents,
certificates, instruments and other papers as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby.
11.3 Modification. This Agreement may not be modified or discharged, or any of
its terms be waived, or any consent be deemed to have been given hereunder,
except by an instrument in writing, signed by the party to be charged.
11.4 Complete Agreement. This Agreement, including the exhibits hereto and the
documents, schedules, certificates and instruments referred to herein, embody
the sole and entire agreement and understanding of the parties hereto with
respect to the transactions contemplated by this Agreement. There are no
restrictions, promises, representations, warranties, covenants or undertakings,
other than those expressly set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to the subject matter hereof.
11.5 Notices. All notices, demands or requests provided for or permitted to be
given pursuant to this Agreement must be in writing and shall be deemed to have
been duly given or delivered if delivered personally or sent by telex, telegram
or telecopy (receipt confirmed); or one day after being sent by express
overnight delivery service; or three days after being mailed by registered or
certified mail, return receipt requested, with first class postage prepaid to:
(a) Kinark:
0000 Xxxxx Xxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, President
with copy to:
Nelson, Mullins, Xxxxx & Xxxxxxxxxxx, L.L.P.
000 Xxxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
(b) Trusts & Trustee:
The Trust Company of Oklahoma
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: Wm. X. Xxxxx,
Senior Vice President
with copies to:
Morrel, West, Xxxxx, Xxxxxx & Xxxxx, Inc.
0xx Xxxxx, Xxxx Xxxxx Xxxx
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
or to any other address a party to this Agreement shall have last designated by
notice to the other parties.
11.6 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
heirs, administrators, representatives and executors, This Agreement may not be
assigned by either Kinark, the Trusts or the Trustee, provided, however, that
Kinark may assign its rights and obligations under this Agreement to a legally
related entity under the control of Kinark; provided, however further, that
Kinark shall remain liable for its obligations hereunder.
11.7 Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware (without regard
to its rules of conflicts of laws).
11.8 Severability. If all or any portion of any of the provisions of this
Agreement shall be declared invalid by any laws applicable thereto, then the
performance of such offending provision shall be excused by the parties hereto;
provided, however, that, if the nonperformance of such excused provision
materially affects any aspect of the transactions contemplated hereby, then the
party for whose benefit such provision was included in this Agreement, shall
have the right, exercisable by written notice given to the other party within
ten (10) days after such provision is so declared invalid, to terminate this
Agreement, without penalty or damage, and thereupon, this Agreement shall be
null and void and the Xxxxxxx Money Deposit, and any interest accrued thereon,
shall be returned to Kinark.
11.9 Time. Time is of the essence of this Agreement.
11.10 Acceptance. This Agreement is subject to acceptance hereof by the
Trusts, the Trustee and Kinark by execution of this Agreement and delivery of
an executed copy to the other parties.
11.11 Antitrust Approvals. The Trusts, the Trustee and Kinark agree to
cooperate in preparing and filing all applications and petitions necessary to
comply with the Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, as amended, all state Blue Sky laws, as applicable, the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 1976, as amended, and all rules and
regulations promulgated thereon if applicable to the transactions proposed
herein. Any filing fees required by the Federal Trade Commission shall be paid
one-half each by the Trusts and Kinark. Any filing fees required by the
Securities and Exchange Commission or state Blue Sky securities regulations
related to the registration of Kinark Stock shall be paid by Kinark.
Notwithstanding anything else to the contrary stated in this Agreement, if
approval of the transactions contemplated herein is not received from the
Federal Trade Commission prior to Closing, the parties agree to extend the
Closing or to terminate this Agreement, upon which event Kinark shall be
entitled to receive its Xxxxxxx Money Deposit and all accrued interest thereon.
11.12 Trustee only Acts as Trustee of the Trusts. The parties agree that
wherever the term Trustee is used in this Agreement, it is understood that the
Trustee is acting solely in its capacity as trustee of the Trusts, pursuant to
the Court's order, and not in any individual capacity. Use of the defined term
"Trustee" shall be given its apparent meaning as "Trustee for the benefit of
the Trusts."
11.13 Headings and Titles. The headings used in this Agreement are for
convenience of reference only and shall not be deemed to alter or affect any
provisions of this Agreement.
11.14 Counterparts. This Agreement may be executed in counterparts each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of the date and year first written above.
KINARK: KINARK CORPORATION
By:
Xxxx X. Xxxxxxxx, President
Attest:
[CORPORATE SEAL] (Asst.) Secretary
THE X. X. XXXXXXX INTER VIVOS
REVOCABLE TRUST
TRUSTS:
By: THE TRUST COMPANY OF
OKLAHOMA, INTERIM TRUSTEE
By:
Xxxxxxx X. Xxxxx, Senior
Vice President
Attest:
Secretary
[CORPORATE SEAL]
THE XXXX XXXXXX XXXXXXX INTER
VIVOS REVOCABLE TRUST
By: THE TRUST COMPANY OF OKLAHOMA,
INTERIM TRUSTEE
BY:
Xxxxxxx X. Xxxxx, Senior
Vice President
Attest
Secretary
[CORPORATE SEAL]
SCHEDULE 2.3
(1) In Re: The X. X. Xxxxxxx Inter Vivos Revocable Trust U.I.D. November 10,
1972, as Amended and The Xxxx Xxxxxx Xxxxxxx Inter Vivos Revocable Trust
U.I.D. November 10, 1972, as Amended, District Court of Tulsa County,
State of Oklahoma, Civil Action, File No. PT 93-36.
End
SCHEDULE 2.4
(1) Stockholders' Agreement of Xxxxxx Galvanizing Company dated March 22,
1958.
End
SCHEDULE 3.2
(1) With respect to Kinark's obligations under Section 10 hereof, Kinark shall
be required to have consent from the stockholders (which consent shall be
in the form of a proxy reviewed by the Securities and Exchange Commission)
and its Directors if any Xxxxxx Common stock is exchanged for Kinark
Preferred Stock.
(2) Federal Trade Commission
(3) Justice Department (Antitrust Division)
(4) Securities and Exchange Commission
END
EXHIBIT A
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made, executed and delivered
as of this 22nd day of July, 1994, by and among THE X.X. XXXXXXX INTER VIVOS
REVOCABLE TRUST and THE XXXX XXXXXX XXXXXXX INTER VIVOS REVOCABLE TRUST (the
"Seller"), KINARK CORPORATION (the "Purchaser"), and THE TRUST COMPANY OF
OKLAHOMA (the "Escrow Agent").
WHEREAS, on July 19, 1994, Purchaser and Seller entered into a Letter of
Intent (the "Letter of Intent") to purchase Six Hundred (600) Shares of the
common stock of Xxxxxx Galvanizing Company; and
WHEREAS, Escrow Agent also serves as the Interim Trustee to the Seller,
and both of them, which has been disclosed to the Purchaser; and
WHEREAS, the Letter of Intent provides that this Agreement be entered into
by the Purchaser and Seller.
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
agreements and promises, contained herein, the adequacy, receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
expressly agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, capitalized terms used herein and not
otherwise defined herein will have the meanings specified in the Letter of
Intent.
ARTICLE 2
ESCROW
2.1 Establishment of the Escrow Fund. Pursuant to Paragraph 2 of the
Letter of Intent the Purchaser has transferred and delivered to the Escrow
Agent FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) in immediately available
funds. Such amount and any other sums from time to time held by the Escrow
Agent pursuant to the terms hereof, including all interest actually accrued
thereon in accordance with this Agreement, are herein referred to as the
"Escrow Funds".
2.2 Investment of the Escrow Funds. Pending disbursement in accordance
with the terms hereof, the Escrow Funds shall be held by the Escrow Agent and
invested in (i) United States Treasury securities or repurchase agreements with
respect thereto (ii) a money market account established by Escrow Agent, or
(iii) in such other investments as shall be directed by the Seller and approved
in writing by the Purchaser (whose approval shall not be unreasonably
withheld).
2.3 Disposition of the Escrow Funds. The Escrow Funds shall be held by
the Escrow Agent in its possession until authorized hereunder to deliver such
Escrow Funds in accordance with subsection (a) or (b) of this Section 2.3.
(a) Upon receipt by the Escrow Agent of a certificate, in
substantially the form of Exhibit "A" attached hereto and, by this reference,
incorporated herein, requesting the payment of the Escrow Funds, or a portion
thereof, signed on behalf of both the Purchaser and the Seller, the Escrow
Agent shall deliver the Escrow Funds, or such portion thereof, as directed in
such certificate.
(b) If a definitive Purchase and Sale Agreement has not been
executed by September 3, then Escrow Agent shall deliver the Escrow Funds to
Purchaser, upon Purchaser's written request.
2.4 Liquidation of the Escrow Funds. Whenever the Escrow Agent shall be
required to make a payment from the Escrow Funds, the Escrow Agent shall pay
such amounts by liquidating such investments of the Escrow Funds as shall be
directed in writing by both Purchaser and Seller.
2.5 Manner of Payment; Interest. All payments made from the Escrow Funds
pursuant to this Agreement shall be made by wire transfer in immediately
available funds to an account designated by the party to whom such payments are
to be made and shall be paid within one business day of the date on which the
right to be paid such amounts shall be established pursuant to Section 2.3
hereof. Such payment of Escrow Funds shall be accompanied by the interest
accrued thereon from the investments described in Section 2.2 hereof.
2.6 Conflicting Statements. In the event of any inconsistency between
Sections 2.3 through 2.5 hereof and the provisions of the Letter of Intent with
respect to the procedures for payment of the Escrow Funds, the provisions of
Sections 2.3 through 2.5 hereof shall prevail.
ARTICLE 3
ESCROW AGENT MATTERS
3.1 Acceptance of Appointment; Receipt of Escrow Funds. The Escrow Agent
hereby accepts its appointment and agrees to act as escrow agent under the
terms and conditions of this Agreement and acknowledges receipt of the Escrow
Funds.
3.2 Escrow Fee. The Escrow Agent shall not charge a fee for its services
hereunder as escrow agent.
3.3 Resignation of Escrow Agent. Should, at any time, any attempt be
made to modify this Agreement in a manner that would increase the duties and
responsibilities of the Escrow Agent, or to modify this Agreement in any manner
that the Escrow Agent deems undesirable, or at any other time, the Escrow Agent
may resign by notifying the Purchaser and the Seller in writing; and until
(a) the acceptance by a successor escrow agent appointed by the Purchaser and
the Seller, or (b) 10 days following such notice from the Escrow Agent,
whichever occurs sooner, the Escrow Agent's only remaining obligation will be
to perform its duties hereunder in accordance with the terms of this Agreement.
3.4 No Obligation to Take Legal Action. The Escrow Agent will have no
obligation to take any legal action in connection with this Agreement or toward
its enforcement, or to appear in, prosecute or defend any action or legal
proceeding which would or might involve it in any costs, expense, loss or
liability unless security and indemnity, as provided herein shall be furnished.
3.5 Inconsistent Instructions. In the event that (a) the Escrow Agent
receives inconsistent instructions pursuant to Section 2.3 hereof, or (b) shall
be threatened with legal action for following instructions received in
accordance herewith, the Escrow Agent may, in its discretion, bring an
interpleader action (or other action for declaratory relief) for resolution of
its instructions and obligations, and may withhold delivery or transfer of the
Escrow Funds pending a final order of a court of competent jurisdiction. Any
cost associated incurred by the Escrow Agent in fulfilling its duties under
this Section 3.5 shall be deducted from the Escrowed Funds, including its
reasonable attorneys' fees.
ARTICLE 4
MISCELLANEOUS
4.1 Further Assurances. Each party to this Agreement hereby agrees to
perform, at the expense of the party making such request, all such further acts
and execute and deliver all such further agreements, instruments and other
documents as the other party shall reasonably request in order more effectively
to consummate or document the actions taken pursuant to this Agreement.
4.2 Notices. All notices or other communications or deliveries to the
Purchaser, Seller or Escrow Agent under this Agreement shall be given by fax
(confirmation of receipt) or overnight delivery as provided below (or to such
other address as such party may specify in writing to the other parties) and
shall be deemed given when received:
ESCROW AGENT:
The Trust Company of Oklahoma
Attn: Wm. X. Xxxxx, Senior
Vice President
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxx, XX 00000
fax: (000) 000-0000
PURCHASER:
Kinark Corporation
Attn: Xxxx X. Xxxxxxxx
President
0000 Xxxxx Xxxx Xxxxxx
Xxxxx, XX 00000
fax: (000) 000-0000
SELLER:
Name the Trusts
c/o The Trust Company of
Oklahoma
Attn: Xxxxxx X. Xxxxxxx Senior Vice President & Chief
Financial Officer
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
fax: (000) 000-0000
4.3 Assignment. The Escrow Agent shall not assign its rights and
obligations under this Agreement without the written consent of the Seller and
the Purchaser. This Agreement and all of its provisions shall be binding upon
the parties and their respective successors and assigns and shall inure to the
benefit of the parties and the successors and assigns of the parties permitted
pursuant to the Letter of Intent. If there is a permitted successor or assign
of a party, then references to such party in this Agreement shall be deemed to
be references to such successor or assign.
4.4 Waiver. The failure of any party at any time or times to require
performance of any provisions of this Agreement shall in no manner affect the
right of such party to enforce the same with respect to such failure to perform
such provision or any subsequent failure to so perform; and no waiver by any
party of any provision (or of a breach of any provision) of this Agreement,
whether by conduct or otherwise, in any one or more instances shall be deemed
or construed either as a further or continuing waiver of any such provision (or
breach of any such provision) or as a waiver of any other provision (or of a
breach of any other provision) of this Agreement.
4.5 Controlling Law. This Agreement shall be governed by, construed and
enforced in accordance with the internal laws of the State of Oklahoma without
regard to those involving conflicts of laws.
4.6 Integration; Amendments. This Agreement and the other agreements, if
any, contemplated by this Agreement and the Letter of Intent supersede all
prior negotiations, agreements and understandings between the parties,
constitute the entire agreement between the parties as to the subject matter of
this Agreement, and may not be altered or amended except in writing signed by
the parties.
4.7 Number; Gender; Captions. Whenever the context so requires, the
singular number shall include the plural and the plural shall include the
singular, and the gender of any pronoun shall include the other genders.
Titles and captions of or in this Agreement are inserted only as a matter of
convenience and for reference and in no way define, limit, extend or describe
the scope of this Agreement or the intent of any of its provisions.
4.8 Counterparts; Copies. This Agreement may be signed by each party
upon a separate counterpart and in such case one copy of this Agreement shall
consist of enough of such counterparts to reflect the signatures of each party
to this Agreement. This Agreement may be executed in two or more copies, each
of which shall be deemed an original, and it shall not be necessary in making
proof of this Agreement or its terms to produce or account for more than one of
such copies.
PURCHASER:
KINARK CORPORATION
By:__________________________________________
Xxxx X. Xxxxxxxx, President
SELLER:
THE X.X. XXXXXXX INTER VIVOS
REVOCABLE TRUST
THE XXXX XXXXXX XXXXXXX INTER VIVOS
REVOCABLE TRUST
By: THE TRUST COMPANY OF OKLAHOMA
By:__________________________________________
Xxxxxx X. Xxxxxxx, Senior Vice President
and Chief Financial Officer
ESCROW AGENT:
THE TRUST COMPANY OF OKLAHOMA
By:__________________________________________
Wm. X. Xxxxx, Senior Vice President
EXHIBIT "A"
FORM OF ESCROW FUNDS DISPOSITION REQUEST
THE TRUST COMPANY OF OKLAHOMA
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Wm. X. Xxxxx, Senior Vice President
RE: Escrow Agreement Among Kinark Corporation, (Name of the
Trust), The Trust Company of Oklahoma, dated July 22, 1994
(the "Escrow Agreement")
Dear Xx. Xxxxxxx:
In accordance with Section 2.3 of the Escrow Agreement, the undersigned
hereby jointly request that the following disbursement be made:
IN WITNESS WHEREOF, the undersigned have caused this certificate to be
executed and delivered by their duly authorized officers this day of
, 1994.
KINARK CORPORATION
By:
Name:
Title:
THE X.X. XXXXXXX INTER VIVOS REVOCABLE
TRUST
THE XXXX XXXXXX XXXXXXX INTER VIVOS
REVOCABLE TRUST
By: THE TRUST COMPANY OF OKLAHOMA
By:
Name:
Title:
