{"id":43499,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/preferred-stock-and-warrant-purchase-agreement-boots-amp-amp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"preferred-stock-and-warrant-purchase-agreement-boots-amp-amp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/preferred-stock-and-warrant-purchase-agreement-boots-amp-amp.html","title":{"rendered":"Preferred Stock and Warrant Purchase Agreement – Boots & Coots International Well Control Inc. and Halliburton Energy Services Inc."},"content":{"rendered":" PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT\n\n AGREEMENT, dated April 15, 1999 (this \"Agreement\"), between BOOTS & COOTS INTERNATIONAL WELL CONTROL, INC., a Delaware corporation (the \"Company\"),\nand the purchaser identified on the signature pages hereto (\"Purchaser\").\n\n WHEREAS, upon the terms and conditions set forth in this Agreement,\nthe Company proposes to issue and sell to Purchaser for an aggregate purchase\nprice of $5,000,000, an aggregate of 50,000 shares, $100.00 par value per\nshare, of Series A Cumulative Senior Preferred Stock of the Company (\"Series A\nStock\") and a warrant (the \"Warrant\") representing the right to purchase an\naggregate number of shares of the Common Stock of the Company equal to the\nnearest whole number resulting from the division of $5,000,000 by the greater\nof (i) $4.00, or (ii) 122% of the average closing price on the American Stock\nExchange of a share of Common Stock of the Company for the thirty calendar days\nimmediately preceding the Closing Date;\n\n NOW, THEREFORE, in consideration of the mutual covenants and\nagreements set forth herein and for good and valuable consideration, the\nreceipt and adequacy of which is hereby acknowledged, the parties hereto agree\nas follows:\n\n\n ARTICLE 1\n\n DEFINITIONS\n\n 1.1 Definitions. As used in this Agreement, and unless the context\nrequires a different meaning, the following terms have the meanings indicated:\n\n \"Affiliate\" shall mean (i) any entity which directly or indirectly\ncontrols, is controlled by or is under common control with another entity, or\n(ii) any officer, director, employee, or general or limited partner of any such\nentity.\n\n \"Agreement\" means this Agreement as the same may be amended,\nsupplemented or modified in accordance with the terms hereof.\n\n \"Board of Directors\" means the Board of Directors of the Company.\n\n \"Business Day\" means any day other than a Saturday, Sunday or other\nday on which commercial banks in the State of Texas are authorized or required\nby law or executive order to close.\n\n \"By-laws\" means the by-laws of the Company as in effect as of the\nClosing Date substantially in the form attached hereto as Exhibit A-2.\n\n \"Capital Lease Obligations\" of any Person shall mean, as of the date\nof determination, the obligations of such Person to pay rent or other amounts\nunder any lease of (or other arrangement conveying the right to use) real or\npersonal property, or a combination thereof, which obligations are required to\nbe classified and accounted for as capital leases on a balance sheet of such\nPerson under GAAP and, for the purposes of this Agreement, the amount of such\nobligations at any time shall be \n\n 2\n\nthe capitalized amount thereof at such time determined in accordance with GAAP\nconsistently applied.\n\n \"Certificate of Designation\" means the Certificate of Designation of\nRights and Preferences relating to the Series A Cumulative Senior Preferred\nStock with respect to the Purchased Shares adopted by the Board of Directors\nand filed with the Secretary of State of the State of Delaware on or before the\nClosing Date substantially in the form attached hereto as Exhibit B.\n\n \"Claims\" has the meaning set forth in Section 3.5 of this Agreement.\n\n \"Closing\" has the meaning set forth in Section 2.3 of this Agreement.\n\n \"Closing Date\" has the meaning set forth in Section 2.3 of this\nAgreement.\n\n \"Code\" means the Internal Revenue Code of 1986, as amended, or any\nsuccessor statute thereto.\n\n \"Commission\" means the Securities and Exchange Commission or any\nsimilar agency having jurisdiction to enforce the Securities Act.\n\n \"Common Stock\" means Common Stock, .00001 par value per share, of the\nCompany, or any other capital stock of the Company into which such stock is\nreclassified or reconstituted.\n\n \"Company\" has the meaning assigned to such term in the recitals to\nthis Agreement.\n\n \"Condition of the Company\" means the assets, business, operations or\nfinancial condition of the Company and its consolidated subsidiaries, taken as\na whole.\n\n \"Contingent Obligation\" means, as applied to any Person, any direct or\nindirect liability of a Person with respect to any Indebtedness, lease,\ndividend, guaranty, letter of credit or other obligation, contractual or\notherwise (the \"primary obligation\") of another Person (the \"primary obligor\"),\nwhether or not contingent, (a) to purchase, repurchase or otherwise acquire\nsuch primary obligations or any property constituting direct or indirect\nsecurity therefor, or (b) to advance or provide funds (i) for the payment or\ndischarge of any such primary obligation, or (ii) to maintain working capital\nor equity capital of the primary obligor or otherwise to maintain the net worth\nor solvency or any balance sheet item, level of income or financial condition\nof the primary obligor, or (c) to purchase property, securities or services\nprimarily for the purpose of assuring the owner of any such primary obligation\nof the ability of the primary obligor to make payment of such primary\nobligation, or (d) otherwise to assure or hold harmless the owner of any such\nprimary obligation against loss or failure or inability to perform in respect\nthereof. The amount of any Contingent Obligation shall be deemed to be an\namount equal to the stated or determinable amount of the primary obligation in\nrespect of which such Contingent Obligation is made or, if not stated or\ndeterminable, the maximum reasonably anticipated liability in respect thereof.\n\n \"Contractual Obligations\" means as to any Person, any provision of any\nsecurity issued by such Person or of any written agreement, undertaking,\ncontract, indenture, mortgage, deed of trust or other instrument to which such\nPerson is a party or by which it or any of its property is bound.\n\n\n\n\n 2\n 3\n\n\n \"Defined Benefit Plan\" means a defined benefit plan within the meaning\nof Section 3(35) of ERISA or Section 414(j) of the Code, whether funded or\nunfunded, qualified or nonqualified (whether or not subject to ERISA or the\nCode).\n\n \"Environmental Laws\" means federal, state and local laws, principles\nof common law, civil law, regulations and codes, as well as orders, decrees,\njudgments or injunctions issued, promulgated, approved or entered thereunder\nrelating to pollution, protection of the environment or public health and\nsafety.\n\n \"ERISA\" means the Employee Retirement Income Security Act of 1974, as\namended.\n\n \"ERISA Affiliate\" means any Person that is treated as a single\nemployer with the Company under Section 414(b), (c), (m) or (o) of the Code.\n\n \"Exchange Act\" means the Securities Exchange Act of 1934, as amended,\nand the rules and regulations of the Commission thereunder.\n\n \"Financial Statements\" has the meaning set forth in Section 3.9.\n\n \"Letter Agreement\" means the Letter Agreement substantially in the\nform attached hereto as Exhibit F.\n\n \"GAAP\" means generally accepted accounting principles in effect from\ntime to time.\n\n \"Governmental Authority\" means the federal, state or city government\nin the United States or other political subdivision thereof, any entity\nexercising executive, legislative, judicial, regulatory or administrative\nfunctions of or pertaining to government, and any corporation or other entity\nowned or controlled, through stock or capital ownership or otherwise, by any of\nthe foregoing.\n\n \"Indebtedness\" means, as to any Person, (a) all obligations of such\nPerson for borrowed money (including, without limitation, reimbursement and all\nother obligations with respect to surety bonds, letters of credit and bankers'\nacceptances, whether or not matured), (b) all obligations of such Person\nevidenced by notes, bonds, debentures or similar instruments, (c) all\nobligations of such Person to pay the deferred purchase price of property or\nservices, except trade accounts payable and accrued commercial or trade\nliabilities arising in the ordinary course of business, (d) all interest rate\nand currency swaps, caps, collars and similar agreements or hedging devices\nunder which payments are obligated to be made by such Person, whether\nperiodically or upon the happening of a contingency, (e) all indebtedness\ncreated or arising under any conditional sale or other title retention\nagreement with respect to property acquired by such Person (even though the\nrights and remedies of the seller or lender under such agreement in the event\nof default are limited to repossession or sale of such property), (f) all\nobligations of such Person under leases which have been or should be, in\naccordance with GAAP, recorded as capital leases, (g) all indebtedness secured\nby any Lien (other than Liens in favor of lessors under leases other than\nleases included in clause (f)) on any property or asset owned or held by that\nPerson regardless of whether the indebtedness secured thereby shall have been\nassumed by that Person or is non-recourse to the credit of that Person, and (h)\nany Contingent Obligation of such Person.\n\n\n 3\n 4\n\n \"Liabilities\" has the meaning set forth in Section 3.17 of this\nAgreement.\n\n \"Lien\" means any mortgage, deed of trust, pledge, hypothecation,\nassignment, encumbrance, lien (statutory or other) or preference, priority,\nright or other security interest or preferential arrangement of any kind or\nnature whatsoever (excluding preferred stock and equity securities or 50% or\nmore of the outstanding economic equity interest is held, directly or\nindirectly, by such Person).\n\n \"Orders\" has the meaning set forth in Section 3.2 of this Agreement.\n\n \"Patents\" means any United States patents and patent applications,\nincluding any divisions, continuations, continuations-in-part, substitutions or\nreissues thereof, whether or not patents are issued on such applications and\nwhether or not such applications are modified, withdrawn or resubmitted.\n\n \"Person\" means any individual, firm, corporation, partnership, trust,\nincorporated or unincorporated association, joint venture, joint stock company,\nlimited liability company, Governmental Authority or other entity of any kind,\nand shall include any successor (by merger or otherwise) of such entity.\n\n \"Purchased Shares\" has the meaning set forth in Section 2.1 of this\nAgreement.\n\n \"Registration Rights Agreement\" means the Registration Rights\nAgreement substantially in the form attached hereto as Exhibit D.\n\n \"Requirements of Law\" means, as to any Person, any law, statute,\ntreaty, rule, regulation, license or franchise of the United States or\ndetermination of an arbitrator, a court or other Governmental Authority, in\neach case applicable or binding upon such Person or any of its property or to\nwhich such Person or any of its property is subject or pertaining to any or all\nof the transactions contemplated or referred to herein.\n\n \"Restated Certificate of Incorporation\" means the Amended and Restated\nCertificate of Incorporation of the Company, as the same may have been amended\nand as in effect as of the Closing Date substantially in the form attached\nhereto as Exhibit A-1.\n\n \"Securities\" means the Purchased Shares, the Warrant and the shares of\nCommon Stock issuable upon the exercise of the Warrant.\n\n \"Securities Act\" means the Securities Act of 1933, as amended, and the\nrules and regulations of the Commission thereunder.\n\n \"Subsidiaries\" means, as to any Person, a corporation, partnership,\nlimited liability company or other entity of which 50% or more of the voting\npower of the outstanding voting equity securities or 50% or more of the\noutstanding economic equity interest is held, directly or indirectly, by such\nPerson.\n\n\n 4\n 5\n\n \"Taxes\" has the meaning set forth in Section 3.10 of this Agreement.\n\n \"Trade Secrets\" means any trade secrets, research records, processes,\nprocedures, manufacturing formulae, technical know-how, technology, blue\nprints, designs, plans, inventions (whether patentable and whether reduced to\npractice), invention disclosures and improvements thereto.\n\n \"Transaction Documents\" means collectively, this Agreement, the\nParticipation Rights Agreement, the Warrant, the Registration Rights Agreement,\nand the Letter Agreement.\n\n \"Warrant\" has the meaning assigned to such term in the recitals to\nthis Agreement.\n\n 1.2 Accounting Terms; Financial Statements. All accounting terms used\nherein not expressly defined in this Agreement shall have the respective\nmeanings given to them in accordance with sound accounting practice. The term\n\"sound accounting practice\" shall mean such accounting practice as, in the\nopinion of the independent certified public accountants regularly retained by\nthe Company, conforms at the time to GAAP applied on a consistent basis except\nfor changes with which such accountants concur.\n\n 1.3 Knowledge of the Company. All references to knowledge of the\nCompany shall mean the actual knowledge of the acting Chief Executive Officer,\nPresident, Vice President or Chief Financial Officer thereof after reasonable\ninquiry.\n\n\n ARTICLE 2\n\n PURCHASE AND SALE OF PREFERRED STOCK AND WARRANT\n\n 2.1 Purchase and Sale of Preferred Stock and Warrant. Subject to the\nterms and conditions herein set forth, the Company agrees to issue and sell to\nPurchaser, and Purchaser agrees that it does hereby Subscribe for and will\npurchase from the Company, on the Closing Date, the number of shares of Series\nA Stock for the aggregate purchase price set forth opposite Purchaser's name on\nSchedule 2 hereto (all of the shares of such Preferred Stock being purchased\npursuant hereto being referred to herein as the \"Purchased Shares\") and the\nWarrant, substantially in the form of Exhibit E hereto.\n\n 2.2 Use of Proceeds. The Company shall use the proceeds from the sale\nof the Purchased Shares and Warrant to provide for acquisitions of assets or\nbusinesses, ongoing working capital and capital spending needs of the Company,\nand to pay for the costs of this transaction as contemplated in this Agreement.\n\n 2.3 Closing. The closing of the sale and purchase of the Purchased\nShares and Warrant (the \"Closing\") shall take place at the offices of Brown,\nParker & Leahy, L.L.P. at 10:00 a.m., local time, on April 15, 1999, or at such\nother time, place and date that the Company and Purchaser may agree in writing\n(the \"Closing Date\"). On the Closing Date, the Company shall deliver to\nPurchaser stock certificates representing the Purchased Shares and an executed\ncopy of the Warrant against \n\n\n\n 5\n 6\n\ndelivery by Purchaser to the Company of the purchase price therefor by wire\ntransfer of immediately available funds.\n\n\n ARTICLE 3\n\n REPRESENTATIONS AND WARRANTIES OF THE COMPANY\n\n The Company represents and warrants to Purchaser as follows:\n\n 3.1 Corporate Existence and Power. The Company (a) is a corporation\nduly organized, validly existing and in good standing under the laws of the\nState of Delaware; (b) has all requisite corporate power and authority to own\nand operate its property, to lease the property it operates as lessee and to\nconduct the business in the United States in which it is currently engaged; (c)\nis duly qualified as a foreign corporation, licensed and in good standing under\nthe laws of each jurisdiction in the United States to which its ownership,\nlease or operation of property or the conduct of its business requires such\nqualification, except to the extent the failure to do so would not have a\nmaterial adverse effect on the Condition of the Company; and (d) has the\ncorporate power and authority to execute, deliver and perform its obligations\nunder this Agreement and each of the other Transaction Documents.\n\n 3.2 Authorization; No Contravention. The execution, delivery and\nperformance by the Company of this Agreement and each of the other Transaction\nDocuments and the transactions contemplated herein and therein, including,\nwithout limitation, the sale, issuance and delivery of the Purchased Shares and\nthe Warrant, (a) have been duly authorized by all necessary corporate action by\nthe Company; (b) do not contravene the terms of the Restated Certificate of\nIncorporation or the By-laws, or any amendment thereof; (c) do not violate,\nconflict with or result in any breach or contravention of, or the creation of\nany Lien under, any Contractual Obligation of the Company, or any Requirement\nof Law applicable to the Company; and (d) do not violate any judgment,\ninjunction, writ, award, decree or order of any nature (collectively, \"Orders\")\nof any Governmental Authority against, or binding upon, the Company. The\nCompany has not previously entered into any Contractual Obligation which is\ncurrently in effect or by which it is currently bound, granting any rights to\nany Person which are inconsistent with the rights to be granted by the Company\nin this Agreement and each of the other Transaction Documents.\n\n 3.3 Governmental Authorization; Third Party Consents. Except as set\nforth in Schedule 3.3, no approval, consent, compliance, exemption,\nauthorization or other action by, or notice to, or filing with, any\nGovernmental Authority or any other Person in respect of any Requirement of\nLaw, and no lapse of a waiting period under a Requirement of Law, is necessary\nor required in connection with the execution, delivery or performance\n(including, without limitation, the sale, issuance and delivery of the\nPurchased Shares and the Warrant) by, or enforcement against the Company of\nthis Agreement and the other Transaction Documents or the transactions\ncontemplated herein and therein.\n\n 3.4 Binding Effect. This Agreement and each of the other Transaction\nDocuments have been duly executed and delivered by the Company, and assuming\nthe accuracy of the representations and warranties of each Purchaser as set\nforth herein constitute the legal, valid and binding obligations \n\n\n\n 6\n 7\n\nof the Company enforceable against it in accordance with their terms, except as\nenforceability may be limited by applicable bankruptcy, insolvency,\nreorganization, fraudulent conveyance or transfer, moratorium or similar laws\nand by general principles of equity relating to enforceability (regardless of\nwhether considered in a proceeding at law or in equity).\n\n 3.5 Litigation. Except as set forth on Schedule 3.5, there are no\nactions, suits, proceedings, claims, complaints, disputes, arbitrations or\ninvestigations (collectively, \"Claims\") pending or, to the knowledge of the\nCompany, threatened, at law, in equity, in arbitration or before any\nGovernmental Authority against the Company which if adversely determined have a\nmaterial adverse effect upon (i) the Condition of the Company or (ii) the\nability of the Company to perform its obligations under this Agreement and the\nother Transaction Documents. The Company has not received written notice of any\nOrder and, to the knowledge of the Company, no Order has been issued by any\ncourt or other Governmental Authority against the Company purporting to enjoin\nor restrain the execution, delivery or performance of this Agreement by the\nCompany or any of the other Transaction Documents to which it is a party.\n\n 3.6 Compliance with Laws.\n\n (a) The Company is in compliance in all material respects,\nwith all Requirements of Law and all Orders issued by any court or Governmental\nAuthority other than Environmental Laws which are specifically covered by\nSection 3.19 hereof.\n\n (b) The Company has all licenses, permits, orders and\napprovals of any Governmental Authority (collectively, \"Permits\") that are\nmaterial to the conduct of its business; to the knowledge of the Company, such\nPermits are in full force and effect; and no violations are or have been\nrecorded in respect of any Permit.\n\n (c) To the knowledge of the Company, no material expenditure\nis presently required by the Company to comply with any existing Requirement of\nLaw or Order.\n\n 3.7 Capitalization. On the Closing Date, after giving effect to the\ntransactions contemplated in this Agreement, the authorized capital stock of\nthe Company will consist of (a) 50,000,000 shares of Common Stock of which\n33,415,517 shares will be issued and outstanding and (b) 5,000,000 shares of\nPreferred Stock, of which (i) 150,000 shares have been designated as Series A\nCumulative Convertible Preferred Stock, of which 50,000 shares will be issued\nand outstanding to Purchaser and (ii) 450,000 shares have been designated as\n10% Junior Redeemable Convertible Preferred Stock (\"Junior Preferred Stock\"),\nof which 122,000 shares are issued and outstanding. Schedule 3.7(a) sets forth\nall outstanding options, warrants, conversion privileges, or other rights to\npurchase or otherwise acquire any authorized but unissued shares of capital\nstock (collectively, \"Options\") of the Company. The Company has reserved the\nnumber of shares of Common Stock issuable upon the exercise of the Warrant. The\nPurchased Shares and the Warrant are duly authorized, and, assuming the\naccuracy of the representations and warranties of Purchaser set forth in\nArticle 4, when issued and sold to Purchaser after payment therefor, such\nshares and warrant and any Common Stock issuable upon the exercise of the\nWarrant will be validly issued, fully paid and nonassessable and will be issued\nin compliance with the requirements of all applicable federal securities laws.\n\n\n\n 7\n 8\n\n 3.8 No Default or Breach; Contractual Obligations. Except as set forth\nin Schedule 3.8, the Company has not received written notice of, and is not in\ndefault under, or with respect to, any Contractual Obligation in any respect,\nwhich, individually or together with all such defaults, could have a material\nadverse effect on (i) the Condition of the Company or (ii) the ability of the\nCompany to perform its obligations under this Agreement or the other\nTransaction Documents to which it is a party. Schedule 3.8 lists all of the\nContractual Obligations to which the Company is a party, whether written, other\nthan this Agreement and the other Transaction Documents, which involve an\namount in excess of $250,000 or which are otherwise material to the Condition\nof the Company. All of such Contractual Obligations are valid, in full force\nand effect and binding upon the Company.\n\n 3.9 Financial Statements. The Company has delivered to Purchaser the\naudited financial statements of the Company (balance sheet and statements of\noperations, cash flows and stockholders' equity, together with the notes\nthereto) for the six month transition period ended December 31, 1997 and the\nyear ended December 31, 1998 (collectively referred to as the \"Financial\nStatements\"). The Financial Statements have been prepared in accordance with\nGAAP applied on a consistent basis throughout the periods indicated and with\neach other. The Financial Statements fairly present the financial position,\noperating results and cash flows of the Company as of the respective dates and\nfor the respective periods indicated.\n\n 3.10 Taxes. The Company has (i) paid all federal, state, county,\nlocal, and other taxes, including, without limitation, income taxes, estimated\ntaxes, excise taxes, sales taxes, use taxes, gross receipts taxes, franchise\ntaxes, employment and payroll related taxes, property taxes and import duties,\nwhether or not measured in whole or in part by net income (hereinafter, \"Taxes\"\nor, individually, a \"Tax\") which have come due and are required to be paid by\nit through the date hereof, and all deficiencies or other additions to Tax,\ninterest and penalties owed by it in connection with any such Taxes, except for\nsuch taxes which are being contested in good faith through appropriate\nproceedings and as to which a reserve has been established in the Financial\nStatements; (ii) timely filed returns for Taxes that it is required to file on\nand through the date hereof; and (iii) with respect to all Tax returns of the\nCompany, (x) except as set forth in Schedule 3.10, to the knowledge of the\nCompany, there is no unassessed tax deficiency proposed or threatened against\nthe Company and (y) except as set forth in Schedule 3.10, no audit is in\nprogress and no extension of time is in force with respect to any date on which\nany return for Taxes was or is to be filed and no waiver or agreement is in\nforce for the extension of time for the assessment or payment of any Tax; (iv)\nexcept as set forth in Schedule 3.10, the Company has not agreed to, or is\nrequired to, make any adjustments under Section 481(a) of the Code by reason of\na change in accounting methods or otherwise; (v) all provisions for income and\nother Tax liabilities of the Company with respect to the Financial Statements\nhave been made in accordance with GAAP consistently applied, and all\nliabilities for Taxes of the Company attributable to periods prior to the date\nhereof have been adequately provided for on the Financial Statements.\n\n 3.11 No Material Adverse Change; Ordinary Course of Business. Since\nDecember 31, 1998, there has not been any material adverse change in the\nCondition of the Company. Except as set forth on Schedule 3.11, since December\n31, 1998, the Company has not participated in any transaction or otherwise\nacted outside the ordinary course of its business, including, without\nlimitation, declaring or paying any dividend or declaring or making any\ndistribution to its shareholders, except out of the earnings of the Company.\n\n\n\n 8\n 9\n\n 3.12 Investment Company. The Company is not an \"investment company\"\nwithin the meaning of the Investment Company Act of 1940, as amended.\n\n 3.13 Private Offering. No form of general solicitation or general\nadvertising was used by the Company or its representatives in connection with\nthe offer or sale of the Purchased Shares and the Warrant. Assuming the\naccuracy of the representations and warranties of Purchaser as set forth in\nthis Agreement and the other Transaction Documents, no registration of the\nPurchased Shares and the Warrant, pursuant to the provisions of the Securities\nAct or any state securities or \"blue sky\" laws, will be required by the offer,\nsale or issuance of the Purchased Shares and the Warrant.\n\n 3.14 Labor Relations. (a) The Company has not engaged in any unfair\nlabor practice; (b) there is (i) no grievance or arbitration proceeding arising\nout of or under collective bargaining agreements pending or, to the knowledge\nof the Company, threatened against the Company, and (ii) no strike, labor\ndispute, slowdown or stoppage pending or, to the knowledge of the Company,\nthreatened against the Company; (c) the Company is not a party to any\ncollective bargaining agreement or contract; (d) to the knowledge of the\nCompany, no union organizing activities are taking place with regard to the\nemployees of the Company.\n\n 3.15 Employee Benefit Plans. To the knowledge of the Company, the\nCompany has not incurred any actual or contingent, direct or indirect,\nliability in respect of any employee benefit plan or arrangement, including any\nplan subject to ERISA, other than to administer and make contributions under or\npay benefits pursuant to the plans listed on Schedule 3.15 (collectively, the\n\"Plans\"). All of the Plans are in compliance with all applicable Requirements\nof Law except to the extent that noncompliance with such Requirements of Law\nwould not have a material adverse effect on the Condition of the Company. No\nPlan (a) is subject to Title IV of ERISA, or is otherwise a Defined Benefit\nPlan, or is a multiple employer plan (within the meaning of Section 413(c) of\nthe Code); or (b) provides for post-retirement welfare benefits or a \"parachute\npayment\" (within the meaning of Section 280G(b) of the Code). The execution and\ndelivery of this Agreement and each of the other Transaction Documents, the\npurchase and sale of the Purchased Shares and the Warrant and the consummation\nof the transactions contemplated herein and therein will not result in any\nprohibited transaction by the Company within the meaning of Section 406 of\nERISA or Section 4975 of the Code.\n\n 3.16 Title to Assets. Except as set forth on Schedule 3.16, the\nCompany owns and has good title to all of its properties and assets used in its\nbusiness and reflected as owned on the Financial Statements or so described in\nany Schedule hereto (collectively, the \"Assets\"), in each case free and clear\nof all Liens, except for (a) Liens specifically described on the notes to the\nFinancial Statements or (b) Liens on Assets which would not have a material\nadverse effect on the Condition of the Company.\n\n 3.17 Liabilities. Except as set forth on Schedule 3.17, the Company\ndoes not have any material obligation or liability (\"Liabilities\") other than\n(i) Liabilities fully and adequately reflected or reserved against on the\nFinancial Statements, (ii) Liabilities not required by GAAP to be set forth on\nthe Financial Statements and (iii) Liabilities incurred since December 31,\n1998, in the ordinary course of business.\n\n\n 9\n 10\n\n 3.18 Insurance. Schedule 3.18 sets forth insurance maintained by the\nCompany with insurance companies or associations in such amounts and covering\nsuch risks as are in the opinion of management of the Company usually and\ncustomarily carried by Persons engaged in the business conducted by the\nCompany. None of such policies will be affected by, or terminate or lapse by\nreason of, any transaction contemplated in this Agreement or any of the other\nTransaction Documents.\n\n 3.19 Environmental Matters. To the knowledge of the Company, the\nCompany is and has been in compliance with all applicable Environmental Laws,\nexcept to the extent that the failure to comply with such Environmental Laws\nwould not have a material adverse effect on the Condition of the Company. There\nis no civil, criminal or administrative judgment, action, suit, demand, claim,\nhearing, notice of violation, investigation, proceeding, notice or demand\nletter pending or, to the knowledge of the Company, threatened against the\nCompany pursuant to Environmental Laws which may be expected to result in a\nfine, penalty or other obligation, cost or expense that may have a material\nadverse affect on the Condition of the Company; and, to the knowledge of the\nCompany, there are no past or present events, conditions, circumstances,\nactivities, practices, incidents, agreements, actions or plans which may\nprevent compliance with, or which have given rise to or will give rise to\nliability under, Environmental Laws that may have a material adverse affect on\nthe Condition of the Company.\n\n 3.20 Broker's, Finder's or Similar Fees. Except as set forth on\nSchedule 3.20 there are no brokerage commissions, finder's fees or similar fees\nor commissions payable by the Company in connection with the transactions\ncontemplated in this Agreement or the other Transaction Documents or based on\nany agreement, arrangement or understanding to which the Company is a party.\n\n\n ARTICLE 4\n\n REPRESENTATIONS AND WARRANTIES OF PURCHASER\n\n Purchaser hereby represents and warrants to the Company as follows:\n\n 4.1 Existence and Power. Purchaser is a corporation duly organized and\nvalidly existing under the laws of the jurisdiction of its formation, and has\nthe requisite power and authority to execute, deliver and perform its\nobligations under this Agreement and each of the other Transaction Documents to\nwhich it is a party.\n\n 4.2 Authorization; No Contravention. The execution, delivery and\nperformance by Purchaser of this Agreement and each of the other Transaction\nDocuments to which it is a party and the transactions contemplated herein and\ntherein, including, without limitation, the purchase of the Purchased Shares\nand the Warrant, (a) have been duly authorized by all necessary corporate\naction by Purchaser; (b) do not contravene the terms of Purchaser's\norganizational documents, or any amendment thereof; (c) do not violate,\nconflict with or result in any breach or contravention of or the creation of\nany Lien under, any Contractual Obligation of Purchaser, or any Requirement of\nLaw applicable to Purchaser; and (d) do not violate any judgment, writ, award,\ndecree or Order of any Governmental Authority against or binding upon\nPurchaser.\n\n\n\n 10\n 11\n\n 4.3 Governmental Authorization; Third Party Consents. No approval,\nconsent, compliance, exemption, authorization, or other action by, or notice\nto, or filing with, any Governmental Authority or any other Person with respect\nto any Requirement of Law, and no lapse of a waiting period under any\nRequirement of Law, is necessary or required in connection with the execution,\ndelivery or performance (including, without limitation, the purchase of the\nPurchased Shares and the Warrant) by, or enforcement against, Purchaser of this\nAgreement and each of the other Transaction Documents to which Purchaser is a\nparty or the transactions contemplated herein and therein.\n\n 4.4 Binding Effect. This Agreement and each of the other Transaction\nDocuments to which Purchaser is a party have been duly executed and delivered\nby Purchaser and constitute the legal, valid and binding obligations of\nPurchaser, enforceable against it in accordance with its terms, except as\nenforceability may be limited by applicable bankruptcy, insolvency,\nreorganization, fraudulent conveyance or transfer, moratorium or similar laws\naffecting the enforcement of creditors' rights generally or by equitable\nprinciples relating to enforceability (regardless of whether considered in a\nproceeding at law or in equity).\n\n 4.5 Purchase for Own Account. The Purchased Shares and the Warrant to\nbe acquired by Purchaser pursuant to this Agreement are being or will be\nacquired for its own account and with no intention of distributing or reselling\nsuch Purchased Shares or Warrant or any part thereof in any transaction that\nwould be in violation of the securities laws of the United States of America,\nor any state, without prejudice, however, to the rights of Purchaser at all\ntimes to sell or otherwise dispose of all or any part of such Purchased Shares\nor Warrant under an effective registration statement under the Securities Act,\nor under an exemption from such registration available under the Securities\nAct, and subject, nevertheless, to the disposition of Purchaser's property\nbeing at all times within its control. If Purchaser should in the future decide\nto dispose of any of the Purchased Shares or the Warrant, Purchaser understands\nand agrees that it may do so only in compliance with the Securities Act and\napplicable state securities laws, as then in effect. Purchaser agrees to the\nimprinting, so long as required by law, of a legend on certificates\nrepresenting all of its Purchased Shares, the Warrant and upon shares of Common\nStock issuable upon the exercise of the Warrant in substantially the following\nform:\n\n\n THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED\n UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS\n OF ANY STATE. SUCH SHARES MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN\n EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE\n SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE\n REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS AND THE DELIVERY\n TO THE COMPANY OF A WRITTEN OPINION OF COUNSEL REASONABLY ACCEPTABLE\n TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.\n\n 4.6 Restricted Securities. Purchaser understands that the Purchased\nShares and the Warrant will not be registered at the time of their issuance\nunder the Securities Act by reason of an exemption thereupon pursuant to\nSection 4(2) of the Securities Act and that the reliance of the \n\n\n 11\n 12\n\nCompany on such exemption is predicated in part on Purchaser's representations\nset forth herein. Purchaser represents that it is experienced in evaluating\ncompanies such as the Company and has such knowledge and experience in\nfinancial and business matters as to be capable of evaluating the merits and\nrisks of its investment. Purchaser further represents that it has had the\nopportunity to ask questions of and receive answers from the Company concerning\nthe terms and conditions of the offering and the Company and to obtain\nadditional information to Purchaser's satisfaction.\n\n 4.7 Accredited Investor Status. Purchaser is an \"accredited investor\"\n(as such term is defined in Regulation D promulgated under the Securities Act).\n\n 4.8 Source of Funds. No part of the funds to be used by Purchaser to\npay the purchase price of the Purchased Shares and the Warrant purchased\nhereunder constitutes \"plan assets\". The Term \"plan assets\" shall have the\nmeaning specified under ERISA, including Department of Labor Regulation Section\n2510.3-101.\n\n 4.9 Litigation. There are no Claims pending or, to the knowledge of\nPurchaser, threatened, at law, in equity, in arbitration or before any\nGovernmental Authority against Purchaser which would, if adversely determined,\nhave a material adverse effect on the ability of Purchaser to perform its\nobligations under this Agreement or any of the other Transaction Documents. No\nOrder has been issued by any court or other Governmental Authority against\nPurchaser purporting to enjoin or restrain the execution, delivery or\nperformance of this Agreement or any of the other Transaction Documents.\n\n 4.10 Broker's, Finder's or Similar Fees. There are no brokerage\ncommissions, finder's fees or similar fees or commissions payable by Purchaser\nin connection with the transactions contemplated in this Agreement or the other\nTransaction Documents, or based on any agreement, arrangement or understanding\nto which Purchaser is a party or any action taken by Purchaser.\n\n\n ARTICLE 5\n\n CONDITIONS TO THE OBLIGATION OF PURCHASER TO CLOSE\n\n The obligation of Purchaser to purchase the Purchased Shares and the\nWarrant, to pay the purchase price therefor at the Closing and to perform any\nobligations hereunder shall be subject to the satisfaction as determined by, or\nwaiver by, Purchaser of the following conditions on or before the Closing Date.\n\n 5.1 Representations and Warranties. The representations and warranties\nof the Company contained in Article 3 hereof shall be true and correct in all\nmaterial respects at and on the Closing Date as if made at and on such date.\n\n 5.2 Compliance with this Agreement. The Company shall have performed\nand complied in all material respects with all of its agreements and conditions\nset forth herein that are required to be performed or complied with by the\nCompany on or before the Closing Date.\n\n\n 12\n 13\n\n 5.3 Secretary's Certificate. Purchaser shall have received a\ncertificate from the Company, in form and substance satisfactory to Purchaser,\ndated the Closing Date and signed by the Secretary or an Assistant Secretary of\nthe Company, certifying (a) that the attached copies of the Restated\nCertificate of Incorporation, the By-laws and resolutions of the Board of\nDirectors of the Company approving this Agreement and each of the other\nTransaction Documents to which the Company is a party and the transactions\ncontemplated herein and therein, are all true, complete and correct and remain\nunamended and in full force and effect and (b) as to the incumbency and\nspecimen signature of each officer of the Company executing this Agreement,\neach other Transaction Document and any other document delivered in connection\nherewith on behalf of the Company.\n\n 5.4 Officer's Certificate. Purchaser shall have received a certificate\nfrom the Company, in form and substance satisfactory to Purchaser, dated the\nClosing Date and signed by the Chief Executive Officer or Chief Financial\nOfficer of the Company, certifying that (a) the representations and warranties\nof the Company contained in Article 3 hereof are true and correct in all\nmaterial respects at and on the Closing Date and (b) the Company has performed\nand complied in all material respects with all of the agreements and conditions\nset forth or contemplated herein that are required to be performed or complied\nwith by it on or before the Closing Date.\n\n 5.5 Documents. Purchaser shall have received true, complete and\ncorrect copies of such documents as they may reasonably request in connection\nwith or relating to the sale of the Purchased Shares and the Warrant, and the\ntransactions contemplated herein, all in form and substance reasonably\nsatisfactory to Purchaser.\n\n 5.6 Filing of Certificate of Designations. The Certificate of\nDesignations shall have been duly filed by the Company with the Secretary of\nState of the State of Delaware in accordance with the appropriate provisions of\nthe Delaware General Corporation Law.\n\n 5.7 Purchased Shares. The Company shall have delivered to Purchaser\ncertificates in definitive form representing the number of Purchased Shares set\nforth opposite Purchaser's name on Schedule 2 hereto, registered in the name of\nPurchaser.\n\n 5.8 Warrant. The Company shall have duly executed and delivered to\nPurchaser the Warrant, substantially in the form attached hereto as Exhibit E.\n\n 5.9 Participation Rights Agreement. The Shareholders shall have duly\nexecuted and delivered the Participation Rights Agreement, substantially in the\nform attached hereto as Exhibit C. \n\n 5.10 Registration Rights Agreement. The Company shall have duly\nexecuted and delivered the Registration Rights Agreement, substantially in the\nform attached hereto as Exhibit D.\n\n 5.11 Letter Agreement. The Company shall have, and shall have caused\nIWC Services, Inc. to, duly execute and deliver the Letter Agreement,\nsubstantially in the form attached hereto as Exhibit F.\n\n\n\n 13\n 14\n\n 5.12 Opinion of Counsel. Purchaser shall have received an opinion of\nBrown, Parker & Leahy, L.L.P, corporate counsel to the Company, dated the\nClosing Date, in form and substance satisfactory to Purchaser.\n\n 5.13 Consents and Approvals. All consents, exemptions, authorizations,\nor other actions by, or notices to, or filings with, Governmental Authorities\nand other Persons required in respect of all Requirements of Law and with\nrespect to those Contractual Obligations of the Company which are necessary in\nconnection with the execution, delivery or performance by, or enforcement\nagainst, the Company of this Agreement and each of the other Transaction\nDocuments shall have been obtained and be in full force and effect, and\nPurchaser shall have been furnished with appropriate evidence thereof.\n\n 5.14 No Material Judgment or Order. There shall not be on the Closing\nDate any Order of a court of competent jurisdiction or any ruling of any\nGovernmental Authority or any condition imposed under any Requirement of Law\nwhich, in the reasonable judgment of Purchaser, would prohibit the purchase of\nthe Purchased Shares and the Warrant or subject Purchaser to any penalty or\nother onerous condition under or pursuant to any Requirement of Law if the\nPurchased Shares and the Warrant were to be purchased hereunder.\n\n 5.15 No Litigation. No action, suit, proceeding, claim or dispute\nshall have been brought or otherwise arisen at law, in equity, in arbitration\nor before any Governmental Authority against the Company which would, if\nadversely determined, (a) have a material adverse effect on the Condition of\nthe Company or (b) have a material adverse effect on the ability of the Company\nto perform its obligations under this Agreement or each of the other\nTransaction Documents.\n\n 5.16 No Material Adverse Change. Since the date hereof, there shall\nhave been no material adverse change in the Condition of the Company.\n\n\n ARTICLE 6\n\n CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CLOSE\n\n The obligation of the Company to issue and sell the Purchased Shares\nand the Warrant and the obligation of the Company to perform its other\nobligations hereunder, shall be subject to the satisfaction as determined by,\nor written waiver by, the Company of the following conditions on or before the\nClosing Date:\n\n 6.1 Representations and Warranties. The representations and warranties\nof Purchaser contained in Article 4 hereof shall be true and correct in all\nmaterial respects at and on the Closing Date as if made at and on such date.\n\n 6.2 Compliance with this Agreement. Purchaser shall have performed and\ncomplied in all material respects with all of its agreements and conditions set\nforth herein that are required to be performed or complied with by Purchaser on\nor before the Closing Date.\n\n 6.3 Certificates. The Company shall have received a certificate from a\nduly authorized officer or representative of Purchaser, in form and substance\nsatisfactory to the Company, dated the \n\n\n 14\n 15\n\nClosing Date and signed by such officer or representative, certifying that (a)\nthe representations and warranties of Purchaser contained in Article 4 hereof\nare true and correct in all material respects at and on the Closing Date.\nPurchaser has performed and complied in all material respects with all of its\nagreements and conditions set forth or contemplated herein that are required to\nbe performed or complied with by such Purchaser on or before the Closing Date,\nand (b) that the officer(s) or representatives signing this Agreement and the\nother Transaction Documents and such certificate, has the authority to execute\nand deliver such documents on behalf of, and to thereby legally obligate\nthereunder, Purchaser.\n\n 6.4 Payment of Purchase Price. The Company shall have received the\naggregate purchase price for the Purchased Shares and the Warrant.\n\n 6.5 Participation Rights Agreement. Purchaser shall have duly executed\nand delivered the Participation Rights Agreement, substantially in the form\nattached hereto as Exhibit C.\n\n 6.6 Registration Agreement. Purchaser shall have duly executed and\ndelivered the Registration Rights Agreement, substantially in the form attached\nhereto as Exhibit D.\n\n 6.7 Letter Agreement. Purchaser shall have duly executed and delivered\nthe Letter Agreement, substantially in the form attached hereto as Exhibit F.\n\n 6.8 Consents and Approvals. All consents, exemptions, authorizations,\nor other actions by, or notices to, or filings with, Governmental Authorities\nand other Persons required in respect of all Requirements of Law and with\nrespect to those Contractual Obligations of Purchaser which are necessary in\nconnection with the execution, delivery or performance by, or enforcement\nagainst, the Company of this Agreement and each of the other Transaction\nDocuments shall have been obtained and be in full force and effect, and the\nCompany shall have been furnished with appropriate evidence thereof.\n\n 6.9 No Material Judgment or Order. There shall not be on the Closing\nDate any Order of a court of competent jurisdiction or any ruling of any\nGovernmental Authority or any condition imposed under any Requirement of Law\nwhich, in the reasonable judgment of the Company, would prohibit the sale of\nthe Purchased Shares and the Warrant or subject the Company to any penalty or\nother onerous condition under or pursuant to any Requirement of Law if the\nPurchased Shares and the Warrant were to be sold hereunder.\n\n 6.10 No Litigation. No action, suit, proceeding, claim or dispute\nshall have been brought or otherwise arisen at law, in equity, in arbitration\nor before any Governmental Authority against Purchaser which would, if\nadversely determined, have a material adverse effect on the ability of\nPurchaser to perform its obligations under this Agreement or any of the other\nTransaction Documents to which it is a party.\n\n\n\n 15\n 16\n\n ARTICLE 7\n\n INDEMNIFICATION\n\n 7.1 Company Indemnification. Except as otherwise provided in this\nArticle 7, the Company agrees to indemnify, defend and hold harmless Purchaser\nand its Affiliates (each, a \"Purchaser Indemnified Party\") to the fullest\nextent permitted by law from and against any and all losses, Claims, or written\nthreats thereof, damages, expenses (including reasonable out of pocket fees,\ndisbursements and other charges of counsel incurred by the Purchaser\nIndemnified Party in any action between the Company and a Purchaser Indemnified\nParty or between a Purchaser Indemnified Party and any third party or\notherwise) or other liabilities (collectively, \"Losses\") resulting from or\narising out of any breach of any representation or warranty, covenant or\nagreement by the Company in this Agreement or the other Transaction Documents;\nprovided, however, that the Company shall not be liable under this Section 7.1\nto a Purchaser Indemnified Party to the extent that it is finally judicially\ndetermined that such Losses resulted or arose from the breach by such Purchaser\nIndemnified Party of any representation, warranty, covenant or other agreement\nof such Purchaser Indemnified Party contained in this Agreement or the other\nTransaction Documents; and provided further, that if and to the extent that\nsuch indemnification is unenforceable for any reason, the Company shall make\nthe maximum contribution to the payment and satisfaction of such Losses which\nshall be permissible under applicable laws and the provisions of this\nAgreement. In connection with the obligation of the Company to indemnify a\nPurchaser Indemnified Party for expenses as set forth above and subject to the\nlimitations set forth in Section 7.3 and 7.4, the Company shall, upon\npresentation of appropriate invoices containing reasonable detail, reimburse\neach such Purchaser Indemnified Party for all such expenses (including\nreasonable out of pocket fees, disbursements and other charges of counsel\nincurred by the Purchaser Indemnified Party) as they are incurred by such\nIndemnified Party.\n\n 7.2 Purchaser Indemnification. Except as otherwise provided in this\nArticle 7, Purchaser agrees to indemnify, defend and hold harmless the Company\nand its Affiliates (each, a \"Company Indemnified Party\") to the fullest extent\npermitted by law from and against any and all losses, Claims, or written\nthreats thereof, damages, expenses (including reasonable out of pocket fees,\ndisbursements and other charges of counsel incurred by the Company Indemnified\nParty in any action between Purchaser and a Company Indemnified Party or\nbetween a Company Indemnified Party and any third party (including, without\nlimitation, any other Purchaser) or otherwise or other liabilities\n(collectively, \"Losses\") resulting from or arising out of any breach of any\nrepresentation or warranty, covenant or agreement by Purchaser in this\nAgreement or the other Transaction Documents; provided, however, that Purchaser\nshall not be liable under this Section 7.1 to a Company Indemnified Party to\nthe extent that it is finally judicially determined that such Losses resulted\nor arose from the breach by such Company Indemnified Party of any\nrepresentation, warranty, covenant or other agreement of such Company\nIndemnified Party contained in this Agreement or the other Transaction\nDocuments; and provided further, that if and to the extent that such\nindemnification is unenforceable for any reason, Purchaser shall make the\nmaximum contribution to the payment and satisfaction of such Losses which shall\nbe permissible under applicable laws and the provisions of this Agreement. In\nconnection with the obligation of Purchaser to indemnify a Company Indemnified\nParty for expenses as set forth above and subject to the limitations set forth\nin Section 7.3 and 7.4, Purchaser shall, upon presentation of appropriate\ninvoices containing reasonable detail, reimburse each such Company Indemnified\nParty for all such expenses (including reasonable out of pocket fees,\ndisbursements and other charges of counsel incurred by the Company Indemnified\nParty) as they are incurred by such Indemnified Party.\n\n\n 16\n 17\n\n 7.3 Notification. Each Purchaser Indemnified Party or Company\nIndemnified Party (each an \"Indemnified Party\") shall, promptly after the\nreceipt of notice of the commencement of any action, investigation, claim or\nother proceeding against such Indemnified Party in respect of which indemnity\nmay be sought under this Article 7, notify the Company or Purchaser, as the\ncase may be (each an \"Indemnifying Party\") in writing of the commencement\nthereof. The omission of any Indemnified Party to so notify an Indemnifying\nParty of any such action shall not relieve an Indemnifying Party from any\nliability which it may have to such Indemnified Party (a) other than pursuant\nto this Article 7 or (b) under this Article 7 unless, and only to the extent\nthat, such omission results in an Indemnifying Party's forfeiture of\nsubstantive rights or defenses. In case any such action, claim or other\nproceeding shall be brought against any Indemnified Party, and it shall notify\nan Indemnifying Party of the commencement thereof, an Indemnifying Party shall\nbe entitled to assume the defense thereof at its own expense, with counsel\nsatisfactory to such Indemnified Party in its reasonable judgment; provided,\nhowever, that any Indemnified Party may, at its own expense, retain separate\ncounsel to participate in such defense at its own expense. Notwithstanding the\nforegoing, in any action, claim or proceeding in which both an Indemnifying\nParty, on the one hand, and an Indemnified Party, on the other hand, are, or\nare reasonably likely to become, a party, such Indemnified Party shall have the\nright to employ separate counsel and to control its own defense of such action,\nclaim or proceeding if, in the reasonable opinion of counsel to such\nIndemnified Party, a conflict or potential conflict exists between an\nIndemnifying Party, on the one hand, and such Indemnified Party, on the other\nhand, that would make such separate representation advisable; provided,\nhowever, that the Indemnifying Party (i) shall not be liable for the fees and\nexpenses of more than one counsel to all Indemnified Parties and (ii) shall not\nbe obligated to reimburse the Indemnified Parties for such fees and expenses\nincurred in any action solely between an Indemnifying Party and the Indemnified\nParties (x) before the final resolution or disposition of such action, claim or\nproceeding and (y) with respect to actions, investigations, claims or\nproceedings in which the Indemnifying Party prevails. Each Indemnifying Party\nagrees that it will not, without the prior written consent of the Indemnified\nParty, settle, compromise or consent to the entry of any judgment in any\npending or threatened claim, action or proceeding relating to the matters\ncontemplated hereby (if any Indemnified Party is a party thereto or has been\nactually threatened to be made a party thereto) unless such settlement,\ncompromise or consent includes an unconditional release of each Indemnified\nParty from all liability arising or that may arise out of such claim, action or\nproceeding. An Indemnifying Party shall not be liable for any settlement of any\nclaim, action or proceeding effected against an Indemnified Party without the\nwritten consent of such Indemnifying Party, which consent shall not be\nunreasonably withheld. The rights accorded to an Indemnified Party hereunder\nshall be in addition to any rights that such Indemnified Party may have at\ncommon law, by separate agreement or otherwise; provided, however, that\nnotwithstanding the foregoing or anything to the contrary contained in this\nAgreement, nothing in this Article 7 should restrict or limit any rights that\nany Indemnified Party may have to seek equitable relief. Notwithstanding any\nprovision herein to the contrary, no claim may be made pursuant to this Article\n7 may be made, nor any action or proceeding may be brought, with respect to the\nbreach of representation, warranties, covenants or agreements of a party in\nthis Agreement or any other Transaction Agreement unless written notice\nthereof, setting forth in reasonable detail the claimed breach, shall have been\ndelivered to the Indemnifying Party alleged to have breached such\nrepresentation, warranty, covenant or agreement prior to the expiration of the\nsurvival time set forth for such representation, warranty, covenant or\nagreement in Section 9.1.\n\n\n 17\n 18\n\n 7.4 Limitation on Indemnification. No claim shall be made by an\nIndemnified Party until such time as the aggregate amount of all Losses of such\nIndemnified exceeds $500,000 (but thereafter there shall be indemnification for\nsuch $500,000 and for all Losses subsequently chargeable to such Indemnified\nParty as provided in this Article 7); provided, that this Section 7.4 shall not\napply to (i) the obligations of the Company to deliver the Purchased Shares and\nthe Warrant to Purchaser or (ii) the obligations of Purchaser to deliver the\npurchase price for the Purchased Shares and the Warrant.\n\n\n ARTICLE 8\n\n POST CLOSING COVENANTS\n\n 8.1 Redemption of Junior Preferred Stock. The Company covenants and\nagrees that it shall redeem in full all shares of Junior Preferred Stock on or\nbefore August 31, 1999, and shall not reissue such shares so long as any shares\nof Series A Stock held by Purchaser remain outstanding.\n\n\n ARTICLE 9\n\n TERMINATION OF AGREEMENT\n\n 9.1 Termination. This Agreement may be terminated prior to the Closing\nas follows:\n\n (a) at any time on or prior to the Closing Date, by mutual\nwritten consent of the Company and Purchaser; or\n\n (b) at the election of the Company or Purchaser by written\nnotice to the other parties hereto after 5:00 p.m., Houston, Texas time on\nApril 30, 1999, if the transactions contemplated in this Agreement shall not\nhave been consummated pursuant hereto unless such date is extended by the\nmutual written consent of the Company and Purchaser.\n\nIf this Agreement so terminates, it shall become null and void and have no\nfurther force or effect, except as provided in Section 9.2.\n\n 9.2 Survival. If this Agreement is terminated and the transactions\ncontemplated herein are not consummated as described above, this Agreement\nshall become void and of no further force and effect; provided, however, that\nnone of the parties hereto shall have any liability in respect of a termination\nof this Agreement pursuant to Section 9.1(a) or 9.1(b); provided further, that\nnone of the parties hereto shall have any liability for speculative, indirect,\nunforeseeable or consequential damages resulting from a termination of this\nAgreement pursuant to Article 9.\n\n\n\n 18\n 19\n\n\n ARTICLE 10\n\n MISCELLANEOUS\n\n 10.1 Survival of Representations and Warranties. All of the\nrepresentations and warranties made herein shall survive the execution and\ndelivery of this Agreement until the first anniversary of the Closing Date.\n\n 10.2 Notices. All notices, demands and other communications provided\nfor or permitted hereunder shall be made in writing and shall be by registered\nor certified first-class mail, return receipt requested, telecopier, courier\nservice or personal delivery to the addresses set forth on the signature pages\nhereto.\n\n All such notices and communications: shall be deemed to have been duly\ngiven when delivered by hand, if personally delivered; when delivered by\ncourier, if delivered by commercial courier service; five (5) Business Days\nafter being deposited in the mail, postage prepaid, if mailed; and when receipt\nis mechanically acknowledged, if telecopied.\n\n 10.3 Successors and Assigns; Third Party Beneficiaries. This Agreement\nshall inure to the benefit of and be binding upon the successors and permitted\nassigns of the parties hereto. Subject to applicable securities laws and any\nrestrictions set forth in this Agreement and the other Transaction Documents,\nPurchaser may assign any of its rights under any of the Transaction Documents\nto any of its Affiliates. The Company may not assign any rights under this\nAgreement without the written consent of Purchaser. Except as provided in\nArticle 7, no Person other than the parties hereto and their successors and\npermitted assigns is intended to be a beneficiary of this Agreement.\n\n 10.4 Amendment and Waiver.\n\n (a) No failure or delay on the part of the Company or\nPurchaser in exercising any right, power or remedy hereunder shall operate as a\nwaiver thereof, nor shall any single or partial exercise of any such right,\npower or remedy preclude any other or further exercise thereof or the exercise\nof any other right, power or remedy. The remedies provided for herein are\ncumulative and are not exclusive of any remedies that may be available to the\nCompany or Purchaser at law, in equity or otherwise.\n\n (b) Any amendment, supplement or modification of or to any\nprovision of this Agreement, any waiver of any provision of this Agreement, and\nany consent to any departure by the Company or Purchaser from the terms of any\nprovision of this Agreement, shall be effective (i) only if it is made or given\nin writing and signed by the Company and Purchaser, and (ii) only in the\nspecific instance and for the specific purpose for which made or given. Except\nwhere notice is specifically required by this Agreement, no notice to or demand\non the Company in any case shall entitle the Company to any other or further\nnotice or demand in similar or other circumstances.\n\n 10.5 Counterparts. This Agreement may be executed in any number of\ncounterparts and by the parties hereto in separate counterparts, each of which\nwhen so executed shall be deemed to be an original and all of which taken\ntogether shall constitute one and the same agreement.\n\n 10.6 Headings. The headings in this Agreement are for convenience of\nreference only and shall not limit or otherwise affect the meaning hereof.\n\n\n 19\n 20\n\n 10.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED\nIN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE\nPRINCIPLES OF CONFLICTS OF LAW THEREOF.\n\n 10.8 JURISDICTION; VENUE. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE\nEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURTS LOCATED IN THE CITY\nOF HOUSTON, TEXAS OR ANY COURT OF THE STATE OF TEXAS LOCATED IN THE CITY OF\nHOUSTON, TEXAS IN ANY ACTION, SUIT OR PROCEEDING ARISING IN CONNECTION WITH\nTHIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE\nBROUGHT ONLY IN SUCH COURTS (AND WAIVES ANY OBJECTION BASED ON FORUM NON\nCONVENIENS OR ANY OTHER OBJECTION TO VENUE THEREIN); PROVIDED, HOWEVER, THAT\nSUCH CONSENT TO JURISDICTION IS SOLELY FOR THE PURPOSE REFERRED TO IN THIS\nSECTION 10.8 AND SHALL NOT BE DEEMED TO BE A GENERAL SUBMISSION TO THE\nJURISDICTION OF SAID COURTS OR IN THE STATE OF TEXAS OTHER THAN FOR SUCH\nPURPOSE. THE PARTIES HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN CONNECTION\nWITH ANY SUCH ACTION, SUIT OR PROCEEDING.\n\n 10.9 Severability. If any one or more of the provisions contained\nherein, or the application thereof in any circumstance, is held invalid,\nillegal or unenforceable in any respect for any reason, the validity, legality\nand enforceability of any such provision in every other respect and of the\nremaining provisions hereof shall not be in any way impaired, unless the\nprovisions held invalid, illegal or unenforceable shall substantially impair\nthe benefits of the remaining provisions hereof.\n\n 10.10 Rules of Construction. Unless the context otherwise requires,\nreferences to sections or subsections refer to sections or subsections of this\nAgreement.\n\n 10.11 Entire Agreement. This Agreement, together with the exhibits and\nschedules hereto, and the other Transaction Documents are intended by the\nparties as a final expression of their agreement and intended to be a complete\nand exclusive statement of the agreement and understanding of the parties\nhereto in respect of the subject matter contained herein and therein. There are\nno restrictions, promises, representations, warranties or undertakings, other\nthan those set forth or referred to herein or therein. This Agreement, together\nwith the exhibits and schedules hereto, and the other Transaction Documents\nsupersede all prior agreements and understandings between the parties with\nrespect to such subject matter.\n\n 10.12 Fees. Each of the Parties to this Agreement shall pay its or\ntheir own expenses, including, without limitation, the expenses of its or their\nown counsel, investment bankers and accountants, incurred in connection with\nthe preparation, execution and delivery of this Agreement and the other\nagreements and documents referred to herein and the consummation of the\ntransactions contemplated herein and therein.\n\n 10.13 Confidentiality. (i) Any information that is provided by the\nCompany to Purchaser regarding the business, technology and affairs of the\nCompany (including, without limitation, the existence of this Agreement, the\nother Transaction Documents and the transactions set forth herein and therein)\nshall not be used by Purchaser for any purpose other than in connection with\nits \n\n\n 20\n 21\n\nownership of the Purchased Shares and the Warrant and the exercise of its\nrights under this Agreement and the other Transaction Documents and shall be\nkept confidential by Purchaser except to the extent: (i) disclosure of such\ninformation is required by a court or administrative agency; (ii) disclosure of\nsuch information, in the written opinion of counsel for Purchaser, is necessary\nor advisable in connection with any suit, directly or indirectly, involving or\npotentially involving Purchaser and arising out of, based upon, relating to or\ninvolving this Agreement or any of the Transaction Documents; provided,\nhowever, that Purchaser shall use its best efforts to ensure that any Persons\nreceiving such information accord such information confidential treatment; and\nprovided further that any disclosure shall be made only upon prior written\nnotice to the Company; (iii) such information was available to Purchaser on a\nnon-confidential basis prior to its disclosure in connection with this\nAgreement and the other Transaction Documents; (iv) such information is\nrevealed to Affiliates, agents or representatives of Purchaser who need to know\nsuch information for the purpose of considering an investment in the Purchased\nShares and the Warrant and are informed by Purchaser of the confidentiality\nobligations with respect to such information and who agree to be bound by the\nterms and conditions of this Section 10.13, or (xi) such information becomes\ngenerally available to the public other than as a result of a disclosure or\nfailure to safeguard the confidentiality thereof by Purchaser. Purchaser\nfurther agrees that it shall, upon learning that disclosure of any confidential\ninformation of the Company is sought in a court of competent jurisdiction or\notherwise required by law, give prompt notice to the Company and allow the\nCompany at the Company's expense to undertake appropriate action to prevent\ndisclosure of the information deemed confidential.\n\n (ii) Except as may be required by applicable law or the rules of any\nsecurities exchange or market on which shares of the Company are traded, the\nCompany agrees that it will not issue a publicity release or public\nannouncement or otherwise make any disclosure concerning this Agreement, the\ntransactions contemplated herein or with respect to Purchaser, without prior\napproval by Purchaser; provided, however, that nothing in this Agreement shall\nrestrict the Company from disclosing information (a) that is already publicly\navailable, (b) that was known to the Company on a non-confidential basis prior\nto its disclosure by Purchaser, (c) that is required, upon written opinion of\ncounsel to the Company, to be disclosed in response to any summons or subpoena\nor in connection with any litigation involving the Company, provided that the\nCompany will use reasonable efforts to notify Purchaser in advance of such\ndisclosure so as to permit Purchaser to seek a protective order or otherwise\ncontest such disclosure, and the Company will use reasonable efforts to\ncooperate, at the expense of Purchaser, with Purchaser in pursuing any such\nprotective order, (d) to the extent necessary, in the written opinion of\ncounsel to the Company, to comply with any Requirement of Law, (e) to the\nCompany's officers, directors, shareholders, agents, employees, members,\npartners, controlling persons, auditors or counsel, or (f) to Persons from whom\nreleases, consents or approvals are required, or to whom notice is required to\nbe provided, pursuant to the transactions contemplated in this Agreement and\nthe other Transaction Documents. If any announcement is required by law or the\nrules of any securities exchange or market to be made by the Company, prior to\nmaking such announcement, the Company will deliver a draft of such announcement\nto Purchaser and shall give Purchaser reasonable opportunity to comment\nthereon.\n\n 10.14. Trade Secrets. Notwithstanding anything to the contrary\ncontained in this Agreement, Purchaser agrees that it shall not have access to\nany information which the Company, in its discretion, believes to be in the\nnature of Trade Secrets of which the disclosure (i) is not in the best \n\n\n 21\n 22\n\ninterest of the Company, (ii) would have a material adverse effect upon the\nCondition of the Company, or (iii) is required by law or an agreement with a\nthird party to be kept confidential.\n\n 10.15 Further Assurances. Each of the parties shall execute such\ndocuments and perform such further acts (including, without limitation,\nobtaining any consents, exemptions, authorizations or other actions by, or\ngiving any notices to, or making any filings with, any Governmental Authority\nor any other Person) as may be reasonably required or desirable to carry out or\nto perform the provisions of this Agreement.\n\n 10.16 Company Information. So long as Purchaser shall own any shares\nof Series A Stock, the Company covenants that it will deliver to Purchaser:\n\n (i) as soon as practicable and in any event within 60 days\n after the end of each quarterly period (other than the last quarterly\n period) in each fiscal year, consolidated statements of income,\n stockholders' equity and cash flows of the Company and its\n subsidiaries for the period from the beginning of the current fiscal\n year to the end of such quarterly period, and consolidated balance\n sheet of the Company and its subsidiaries as at the end of such\n quarterly period, setting forth in each case in comparative form\n figures for the corresponding period in the preceding fiscal year;\n provided, that delivery pursuant to clause (iii) below of copies of\n the Quarterly Report on Form 10-Q or 10-QSB, as the case may be, of\n the Company for such quarterly period filed with the Securities and\n Exchange Commission shall be deemed to satisfy the requirements of\n this clause (i) with respect to consolidated financial statements if\n such financial statements are included in such report;\n\n (ii) as soon as practicable and in any event within 120 days\n after the end of each fiscal year, consolidated statements of income\n and cash flows and a consolidated statement of stockholders' equity of\n the Company and its subsidiaries for such year, and a consolidated\n balance sheet of the Company and its subsidiaries as at the end of\n such year, setting forth in each case in comparative form\n corresponding consolidated figures from the preceding annual audit,\n reported on by independent public accountants of recognized national\n standing selected by the Company; provided, that delivery pursuant to\n clause (iii) below of copies of the Annual Report on Form 10-K or\n 10-KSB, as the case may be, of the Company for such fiscal year filed\n with the Securities and Exchange Commission shall be deemed to satisfy\n the requirements of this clause (ii) with respect to consolidated\n financial statements if such financial statements are included in such\n report;\n\n (iii) promptly upon transmission thereof, copies of all such\n financial statements, proxy statements, notices and reports as it\n shall send to its public stockholders and copies of all registration\n statements (without exhibits) and all reports which it files with the\n Securities and Exchange Commission (or any governmental body or agency\n succeeding to the functions of the Securities and Exchange\n Commission); and\n\n (iv) with reasonable promptness, such other information\n respecting the condition or operations, financial or otherwise, of the\n Company or any of its subsidiaries as Purchaser may reasonably\n request.\n\n\n 22\n 23\n\nTogether with each delivery of financial statements required by clauses (i) and\n(ii) above, if requested, the Company will deliver to Purchaser an Officer's\nCertificate certifying compliance by the Company and its subsidiaries with the\nprovisions of paragraph 5 of the Certificate of Designation.\n\n\n\n 23\n 24\n\n [Signature page to Preferred Stock and Warrant Purchase Agreement]\n\n\n IN WITNESS WHEREOF, the parties hereto have caused this Agreement to\nbe executed and delivered by their respective officers or representatives\nhereunto duly authorized on the date first above written.\n\n BOOTS & COOTS INTERNATIONAL WELL \n CONTROL, INC.\n\n\n By:\n --------------------------------\n Larry H. Ramming, Chairman and\n Chief Executive Officer\n\n\n\n HALLIBURTON ENERGY SERVICES, INC.\n\n By:\n --------------------------------\n Name:\n ------------------------------\n Title:\n -----------------------------\n\n\n 25\n\n SCHEDULE 2\n\n Purchased Shares and Purchase Price\n\n<\/pre>\n
\n\n Shares of Preferred
\n Stock Purchased
\nPurchaser From the Company Purchase Price
\n——— —————- ————–
\n
\nHalliburton Energy Services, Inc. 50,000 $5,000,000
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n 26
\n [MAROON BELLS CAPITAL PARTNERS, INC. LETTERHEAD]<\/p>\n
April 11, 2000<\/p>\n
Mr. Larry Ramming
\nChairman
\nBoots & Coots Group
\n777 Oak Post Boulevard, 8th Floor
\nHouston, TX 77056<\/p>\n
Dear Larry:<\/p>\n
We are pleased to offer this Letter of Commitment for the immediate
\nfunding of a minimum of $5,000,000 of a $8,000,000 Tranche B Revolver for Boots
\n& Coots International Well Control, Inc., as specified in the attached Summary
\nof Terms, and Side Letter, dated April 11, 2000, subject to the additional term
\nthat all accrued interest, at our election, can be converted, on a per share
\nbasis, into common stock at the closing bid price on April 11, 2000. We are
\nprepared to act as Placement Agent for up to $8,000,000 of Tranche Funding,
\nbased on highly confident indications of interest, to be funded no later than
\nApril 28, 2000.<\/p>\n
This commitment is subject to the completion and signing of
\ndocumentation satisfactory to us, including a Junior Participation Agreement
\nbetween Comerica Bank – Texas and Maroon Bells Capital Partners, Inc., and a
\nForbearance Agreement from Comerica.<\/p>\n
Sincerely, <\/p>\n
MAROON BELLS CAPITAL PARTNERS, INC.<\/p>\n
\/s\/ PAUL A. MOORE<\/p>\n
Paul A. Moore
\n Chairman<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6924,7712],"corporate_contracts_industries":[9413],"corporate_contracts_types":[9622,9627],"class_list":["post-43499","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-boots---coots-international-well-control-inc","corporate_contracts_companies-halliburton-co","corporate_contracts_industries-energy__services","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43499","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43499"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43499"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43499"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43499"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}