SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
WYOMING OIL & MINERALS, INC.
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
983450-10-7
(CUSIP Number)
JULIA K. O'NEILL, FLEMING & O'NEILL, P.C.
268 SUMMER STREET, 3D FLOOR, BOSTON, MA 02210 (617) 350-7770
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
11/1/99
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box [ ].
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP No. 983450-10-7
1) Names of Reporting Persons
I. R. S. Identification No. of Above Persons (entities only)
Michael D. Herman
2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a)
(b)
3) SEC Use Only
4) Source of Funds (See Instructions)
PF
5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e)
6) Citizenship or Place of Organization
U.S.
Number of (7) Sole Voting Power
Shares 7,400,000
Bene-
ficially (8) Shared Voting Power
Owned by 0
Each
Report- (9) Sole Dispositive Power
ing 7,400,000
Person
With (10) Shared Dispositive Power
0
11) Aggregate Amount Beneficially Owned by Each Reporting Person
7,400,000
12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
13) Percent of Class Represented by Amount in Row (11)
30%
14) Type of Reporting Person (See Instructions)
IN
SCHEDULE 13D
MICHAEL D. HERMAN
Item 1. Security and Issuer
Common Stock
Wyoming Oil & Minerals, Inc.
330 South Center, Suite 419
Casper, Wyoming 82601
Item 2. Identity and Background
(a) Michael D. Herman
(b) 330 South Center, Suite 419, Casper, Wyoming 82601
(c) Business Consultant
(d) No criminal convictions.
(e) Not a party to any of referenced proceedings.
(f) U.S. Citizen.
Item 3. Source and Amount of Funds or Other Consideration.
Mr. Herman used $74,000 of his personal funds to purchase the common stock
described herein.
Item 4. Purpose of Transaction
The purpose of the acquisition is to assume control of the issuer.
On October 29, 1999, the Company entered into a Stock Purchase and Restructuring
Agreement with Michael D. Herman. The Agreement provides for, among other
things, the purchase by Mr. Herman of 7,400,000 shares of the Company at a price
of $0.01 per share, or a total of $74,000.00, which purchase was consummated on
November 1, 1999; the holding of an annual meeting pursuant to proxy
solicitation, as described below; the location by Mr. Herman of purchasers for
certain shares held by stockholders of the Company; and the arrangement by Mr.
Herman of financings of the Company of at least $1,000,000 and up to $2,000,000
for compensation of 700,000 shares of common stock of the Company at an exercise
price of $1.00 per share (post-reverse-split). The purchase funds for Mr.
Herman's purchase of 7,400,000 shares were personal funds. The shares purchased
were newly-issued shares of the Company. Mr. Herman is now the beneficial owner
of 30% of the outstanding shares of capital stock of the Company.
The annual meeting which is intended to be held by the Company in the near
future pursuant to proxy solicitation will be for the following purposes:
1) To elect four directors to the Board, management's nominees for
which will be Jack C. Bradley, Jr. (one of the current directors); Michael D.
Herman; Gerard Laheney (an associate of Michael D. Herman), and Raymond Mason
(also an associate of Michael D. Herman);
2) To authorize a one-for-one hundred reverse split of the Common Stock
of the Company; and
3) To authorize 2,000,000 shares of "blank check" preferred stock.
Michael D. Herman may increase his amount of beneficial ownership of common
stock of the Company by way of the grant of the options described above, if he
succeeds in completing the above-described financings for the Company. In such
event, assuming the reverse split described above is effectuated, and assuming
no further issuances of stock, Mr. Herman would become the beneficial owner of
81.8% of the outstanding common shares. Prior to the exercise of any such
options he would be the direct owner of 74,000 shares and the beneficial owner
of an additional 700,000 shares.
The current officers and directors of the Company have agreed to vote in favor
of Mr. Herman and his associates, Gerard Laheney and Raymond Mason, as Directors
at the annual meeting, and also to vote in favor of the other proposals to be
voted on at the Annual Meeting. It is anticipated that Mr. Herman will also
vote in favor of all of the proposals described herein.
Mr. Herman has extensive experience in the oil and gas industries and hopes to
bring the Company to profitability and thereby improve its value to its
shareholders.
Item 5. Interest in Securities of the Issuer
(a) Mr. Herman beneficially owns 7,400,000 shares of Common Stock of the
issuer, which represents 30% of the outstanding shares.
(b) Mr. Herman has sole power to vote and dispose of all shares owned by him.
(c) During the past sixty days, the only transaction by Mr. Herman in the
securities of the issuer was the purchase by Mr. Herman of 7,400,000 shares of
Common Stock for $.01 per share on November 1, 1999, pursuant to a Stock
Purchase and Restructuring Agreement as described herein.
(d) No other person is known to have the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of,
such securities.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
The Stock Purchase and Restructuring Agreement (Exhibit A) is hereby
incorporated by reference herein in its entirety.
The Stock Purchase and Restructuring Agreement provides for, among other things,
the purchase by Mr. Herman of 7,400,000 shares of the Company at a price of
$0.01 per share, or a total of $74,000.00, which purchase was consummated on
November 1, 1999; the holding of an annual meeting pursuant to proxy
solicitation, as described below; and the arrangement by Mr. Herman of
financings of the Company of at least $1,000,000 and up to $2,000,000 for
compensation of 700,000 shares of common stock of the Company at an exercise
price of $1.00 per share (post-reverse-split).
The 7,400,000 shares purchased by Mr. Herman are being held in escrow to secure
certain of Mr. Herman's obligations pursuant to the agreement. The failure of
Mr. Herman to complete one or more of the enumerated obligations could result in
the cancellation (return to the Company's treasury) of the 7,400,000 shares, and
in such event the Company would not issue the above-described options to Mr.
Herman.
Item 7. Material to be Filed as Exhibits
Exhibit A - Stock Purchase and Restructuring Agreement
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
11/8/99 /s/ Michael D. Herman
Date Michael D. Herman
STOCK PURCHASE AND RESTRUCTURING AGREEMENT
This STOCK PURCHASE AND RESTRUCTURING AGREEMENT is dated as of
the 29th day of October, 1999, among Michael D. Herman, an individual
resident of Colorado Springs, Colorado ("Purchaser"); Wyoming Oil &
Minerals, Inc., a Wyoming corporation (the "Company"); Jack C. Bradley,
an individual resident of Casper, Wyoming ("Bradley"); Jess A. Tolerton,
an individual resident of Cheyenne, Wyoming ("Tolerton") (Bradley and
Tolerton sometimes collectively referred to as the "Principals");
and The Hawks Company Limited Partnership, a Wyoming limited
partnership ("Hawks").
W I T N E S S E T H:
WHEREAS, Purchaser desires to acquire certain newly-issued
shares of common stock in the Company, as hereinafter provided; and
WHEREAS, the Company and Purchaser wish to enter into various
other arrangements as described herein.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it is
hereby agreed:
1 TRANSACTIONS TO BE CONSUMMATED.
1.1 Stock Purchase. Not later than seven (7) days after full
execution of this Agreement, Purchaser shall purchase from
the Company, and the Company shall sell to Purchaser,
7,400,000 shares of newly-issued common stock of the Company
(the "Stock") at a price of $0.01 per share, payable in the
form of a certified check or via wire transfer of funds. Upon
delivery of the purchase price by Purchaser to the Company,
the Company shall deliver to Julia K. O'Neill, as escrow
agent, a certificate representing the Stock, which she shall
hold in accordance with an Escrow Agreement in the form
attached hereto as Exhibit A.
1.2 Termination of Personal Guaranty. Prior to or at the
shareholders' meeting described in Section 1.4 below, the
personal guaranties of Bradley on Company debt in the
approximate amount of $50,000 owed to Security First Bank
shall be terminated by way of payoff of such debt by the
Company with new funds infused by efforts of Purchaser, or by
substitution of guarantor(s) acceptable to said bank.
1.3 Inter-Company Accounts. On or before the date which is 90
days after the Meeting Date (as hereinafter defined), the
following Company debts shall be paid in full by the Company
with new funds infused by efforts of Purchaser:
Manewall-Bradley Oil Company $50,000
Manx Oil Corporation $47,931
Hawks Company Limited Partnership $56,829
Lolly Martin $25,000
Linda Allen $25,000
Jack and Lola Bradley $ 3,750
1.4 Shareholders' Meeting. Upon full execution of this Agreement,
the parties shall immediately undertake to prepare, file and
prosecute to clearance with the Securities and Exchange
Commission (the "SEC") preliminary proxy materials which will
allow for a shareholders' meeting (the "Meeting") of the
Company to be held as soon as possible, for the following
purposes:
1.4.1 To elect a Board of Directors, the nominees for which
shall be Gerard Laheney, Purchaser, Raymond Mason and
Bradley;
1.4.2 To authorize an amendment to the Company's Articles of
Incorporation which shall effectuate a reverse split
at the ratio of 1 share per every 100 shares, no
fractional shares to be issued, fractional shares to
be rounded up to whole shares; and
1.4.3 To authorize 2,000,000 shares of "blank check"
preferred stock for acquisition purposes.
Purchaser's counsel shall prepare such materials on behalf of
the Company and shall submit same to counsel to the Company
for approval prior to any filing with the SEC, including
response filings to comment letters, if any. The Company
shall pay the legal fees for preparation of such materials,
which shall not exceed $5,000. Counsel to the Company shall
respond in writing to Purchaser's counsel with approval or
specific comments to any such submission by Purchaser's
counsel within three (3) business days of receipt of such
submission. The parties shall use best efforts to secure
clearance by the SEC within thirty (30) days after the initial
filing. Purchaser's counsel shall prepare responsive materials
to any comment letters within three (3) business days of
receipt of each such comment letter. Upon clearance by the SEC
(or the passage of time without receipt of comments which
indicates that no comments will be forthcoming), the Company
shall call the Meeting in accordance with such proxy materials
and in accordance with all applicable laws, rules and
regulations, to be held as soon as reasonably possible after
such clearance (the date of the Meeting, the "Meeting Date").
1.5 Third-Party Stock Purchases. Within fifteen (15) days after
the Meeting Date, Purchaser shall cause the consummation of
the sale of 750,000 shares (pre-reverse split numbers) of
common stock in the Company currently owned by The Hawks
Company Limited Partnership and 500,000 (pre-reverse split
numbers) shares of common stock in the Company currently owned
by Jess A. Tolerton , all at a price of $0.05 per share (pre-
reverse split price), to one or more third parties, such
consideration to be paid to such owners by certified check or
wire transfer. The current owners of such shares shall
cooperate with Purchaser to enable consummation of such sales,
by delivery of stock certificates, stock powers with signature
guarantees, and such other documents as may be reasonably
necessary.
1.6 Financings. Within one year after consummation of the
transactions described in Sections 1.1-1.5 above, Purchaser
shall assist the Company in effectuating one or more
financings of not less than $1,000,000 and up to $2,000,000 by
way of sale of stock through private placement, registered
offering or overseas offering, or by bank financing or
otherwise, as the then-constituted Board of the Company shall
determine. The proceeds of such financings shall be used for
drilling new wells, exploitation of existing wells, and such
other Company purposes as the Board shall determine. As
compensation for Purchaser's effectuating such financings of
at least $1,000,000, Purchaser shall receive options to
purchase 700,000 shares of common stock of the Company at an
exercise price of $1.00 per share (post-reverse split) (which
price shall not be decreased by the Company other than
pursuant to standard price adjustment provisions), 350,000 of
which shall have an exercise period of two years, and 350,000
of which shall have an exercise period of three years,
substantially in the form attached hereto as Exhibit B.
2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PRINCIPALS.
The Principals jointly and severally represent, warrant and
covenant to Purchaser as follows:
2.1 Stock Ownership. 2,135,500 of the issued and outstanding
shares of the capital stock of the Company are beneficially
owned, and at the Meeting Date will be beneficially owned, by
Bradley free and clear of all liens, encumbrances,
restrictions, claims, options, warrants, calls and commitments
of every kind; 650,000 of the issued and outstanding shares of
the capital stock of the Company are owned, and at the Meeting
Date will be owned, by Tolerton free and clear of all liens,
encumbrances, restrictions, claims, options, warrants, calls
and commitments of every kind; the Principals have full legal
right, power and authority to enter into this Agreement and to
vote as shareholders and as directors of the Company in favor
of all of the transactions described herein, and shall so
vote; Tolerton has full legal right, power and authority to
exchange, assign and transfer his shares to a third party
arranged by Purchaser pursuant to Section 1.5 hereof; and, on
the date of such transfer, the delivery to such third
party(ies) of Tolerton's stock pursuant to the provisions of
this Agreement will transfer valid title thereto, free and
clear of all liens, encumbrances, claims, options, warrants,
calls and commitments of any kind.
2.2 Existence and Good Standing. Except as set forth on Schedule
2.2, the Company is a corporation duly organized and validly
existing in good standing under the laws of the State of
Wyoming, and is duly authorized, qualified, permitted and
licensed under all applicable laws, regulations, ordinances
and orders of public authorities to carry on its business in
the places and in the manner as now conducted except where the
failure to do so would not have a material adverse effect on
the Company's business. True and complete copies of the
charter documents and by-laws of the Company, as amended to
the date hereof, certified as of a recent date (x) in the case
of the charter documents of the Company, by the Secretary of
State of Wyoming, and (y) in the case of the by-laws, by the
Secretary of the Company, have been delivered to Purchaser.
Schedule 2.2 lists the directors and officers of the Company
and the Company's EDGAR code numbers, including CIK, password,
CIK Confirmation Code, and PMAC, all of which are currently
valid. The minute books (containing the records of meetings
of the stockholders, the board of directors, and any
committees of the Board of Directors) are correct and
complete. The Company is not in default under or in violation
of any provision of its charter or by-laws.
2.3 Outstanding Stock. The authorized capital stock of the
Company consists of 25,000,000 shares of common stock, $0.01
par value, of which 17,250,000 shares are issued and
outstanding and no shares are held in treasury. Each share of
issued and outstanding stock is duly and validly authorized
and issued, fully paid and nonassessable, and was not issued
in violation of the preemptive rights of any stockholder
granted by any stockholder or the Company. No option,
warrant, call or commitment of any kind obligating the Company
to issue any of its authorized but unissued capital stock or
other equity interest exists. The common stock is now and at
the Meeting Date will be quoted on the OTC bulleting board.
To the Principals' knowledge, there are no voting trusts,
proxies, or other agreements or understandings with respect to
the voting of the capital stock of the Company.
2.4 Subsidiaries. Other than as set forth on Schedule 2.4 hereto,
the Company does not have any subsidiaries nor own any
securities (i.e., stock, warrants, calls, options, notes,
bonds or other evidences of ownership or indebtedness) of any
other person, firm or corporation. The Company's sole
subsidiary, Wyoming Coal Corp., has no assets, liabilities or
operations.
2.5 Financial Statements; SEC Filings. The Principals have
delivered to Purchaser true and complete copies of the
following statements of the Company (Schedule 2.5):
2.5.1 Unaudited Balance Sheet as of August 31, 1999
(hereinafter referred to as the "Balance Sheet Date")
and applicable notes;
2.5.2 Unaudited Statements of Income, Changes in
Stockholders' Equity, and Cash Flow for the quarter
ended on the Balance Sheet Date, and applicable notes;
2.5.3 Copies of all annual reports to shareholders, 10-Q
forms, 10-K forms and all other forms or documents
filed with the Securities and Exchange Commission (the
"SEC") or distributed to shareholders within the last
three (3) fiscal years (all of which documents are
listed on Schedule 2.5.3).
All financial statements delivered herewith or as a part of
such SEC filings are in accordance with the books and records
of the Company; are complete and correct in all material
respects; are correct and complete and are consistent with the
books and records of the Company (which books and records are
correct and complete); and have been prepared in accordance
with generally accepted accounting principles consistently
applied.
The Company has timely filed all forms, reports and documents
required to be filed by the Company with the SEC since January
1, 1996. All such required forms, reports and documents
(including those that the Company may file subsequent to the
date hereof), as amended, are referred to herein as the
"Company SEC Reports." As of their respective dates, the
Company SEC Reports (i) were prepared in accordance and
complied in all material respects with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), or
the Exchange Act, as the case may be, and the rules and
regulations of the SEC thereunder applicable to such Company
SEC Reports and (ii) did not at the time they were filed
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, except to the extent corrected prior to the date
hereof by a subsequently filed Company SEC Report. The
Company's subsidiary is not required to file any forms,
reports or other documents with the SEC.
Each of the financial statements (including, in each case, any
related notes thereto) contained in the Company SEC Reports
(the "Company Financials"), including each Company SEC Report
filed after the date hereof until the Closing, (i) complied as
to form in all material respects with the published rules and
regulations of the SEC with respect thereto, (ii) was prepared
in accordance with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout
the periods involved (except as may be indicated in the notes
thereto or, in the case of unaudited interim financial
statements, as may be permitted by the SEC on Form 10-Q, 8-K
or any successor form under the Exchange Act) and (iii) fairly
presented in all material respects the financial position of
the Company as at the respective dates thereof and the results
of the Company's operations and cash flows for the periods
indicated, except that the unaudited interim financial
statements may not contain footnotes and were or are subject
to normal and recurring year-end adjustments.
The Company has heretofore furnished to Purchaser a complete
and correct copy of any amendments or modifications, which
have not yet been filed with the SEC but which are required to
be filed, to agreements, documents or other instruments which
previously had been filed by the Company with the SEC pursuant
to the Securities Act or the Exchange Act.
2.6 Liabilities. The Principals have delivered to Purchaser an
accurate description (Schedule 2.6) as of the date hereof of
all liabilities of the Company not reflected on the Balance
Sheet as of the Balance Sheet Date. The Company has no
liabilities other than as set forth on Schedule 2.6 and on the
Balance Sheet, and there is no basis for any present or future
action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand against the Company giving rise to
any liability.
2.7 Receivables. The Principals have delivered to Purchaser an
accurate list (Schedule 2.7) as of the Balance Sheet Date of
the accounts and notes receivable of the Company.
2.8 Permits, Licenses, etc. The Principals have has delivered to
Purchaser an accurate list (Schedule 2.8) as of the Balance
Sheet Date of all permits, licenses, franchises, certificates,
trademarks, trade names, patents, patent applications and
copyrights owned or held by the Company, all of which are now
valid and in good standing. Such permits, licenses, orders,
approvals, variances, franchises, etc., are adequate for the
operation of the Company's business as presently constituted,
except where the failure to have such would not have a
material adverse effect on the Company's business.
2.9 Fixed Assets. The Directors have delivered to Purchaser an
accurate list of the book value of the major categories of all
the fixed assets of the Company as of the Balance Sheet Date
(Schedule 2.9). Substantially all of the machinery and
equipment of the Company is in good working order and
condition, subject to normal life expectancy. Since the
Balance Sheet Date the Company has not acquired or sold or
otherwise disposed of any fixed assets. Except as described
on Schedule 2.9, all fixed assets used by the Company in the
operation of its business are owned by the Company. Schedule
2.9 contains, without limitation, copies of all title reports
and title insurance policies received or owned by the Company.
2.10 Other Assets. The Directors have delivered to Purchaser an
accurate list (Schedule 2.10) as of the Balance Sheet Date of
all properties and assets of the Company with values in excess
of $1,000 other than those shown on Schedules 2.7, 2.8, and
2.9. Except as indicated on Schedule 2.10, since the Balance
Sheet Date, the Company has not acquired or sold or otherwise
disposed of any of such properties or assets which would be
considered material singly or in the aggregate to the Company.
The Company has good and marketable title to, or a valid
leasehold interest in, the properties and assets used by it
located on its premises, or shown on the most recent Balance
Sheet provided pursuant hereto or acquired after the Balance
Sheet Date, free and clear of all liens and encumbrances,
except for properties and assets disposed of in the ordinary
course of business since the Balance Sheet Date.
Other than as disclosed on Schedule 2.10, management of the
Company has not devoted any significant effort or expenditure
in the two year period prior to the execution hereof to any
plans or projects involving the opening of new operations or
the acquisition of any real property or existing business nor
does management have any plans or projects which, if pursued,
would require any such significant effort or expenditure.
2.11 Contracts and Agreements; Adverse Restrictions.
2.11.1 The Principals have delivered to Purchaser an accurate
list (Schedule 2.11.1) as of the date hereof of all
contracts and agreements to which the Company is a
party or by which it or any of its property is bound
(including, but not limited to, joint venture or
partnership agreements, leasehold agreements, working
interest agreements, contracts with any labor
organizations, loan agreements, bonds, mortgages,
liens, pledges or other security agreements) and have
made available for inspection by Purchaser all of said
contracts and agreements. None of such contracts or
agreements unduly burdens or restricts the Company in
the ordinary course of its business. The Company has
complied in all material respects with all commitments
and obligations under all such contracts and
agreements.
2.11.2 The Company is not a party to any contract, agreement
or other commitment or instrument or subject to any
charter or other corporate restriction or subject to
any restriction or condition contained in any permit,
site assignment, license, judgment, order, writ,
injunction, decree or award which materially adversely
affects or in the future is expected to (so far as the
Principals now believe) materially adversely affect,
the business, operations, properties, assets or
condition (financial or otherwise) of the Company
considered as a whole.
2.12 Insurance. The Principals have delivered to Purchaser an
accurate list (Schedule 2.12) as of the date hereof of all
insurance policies carried by the Company (including all
policies issued within the last three years whether or not
currently in effect) specifying, in each case, the name of the
insurer, a summary description of the property or interest
insured and the type of risks insured, the deductible and
limits of coverage, and the annual premium therefor; and have
made available for inspection by Purchaser copies of all of
such policies. The Company carries insurance which the
Principals believe to be adequate in character and amount,
with reputable insurers in respect of its properties, assets
and business and such insurance policies are still in full
force and effect and shall remain in effect at least until the
Meeting Date.
2.13 No Pension Plan. The Company does not have, nor has it ever
had, any pension, profit sharing, deferred compensation, stock
option, employee stock purchase or other employee benefit plan
or agreement, other than an option plan which expired more
than five (5) prior to the date hereof.
2.14 Laws and Regulations; Litigation. The Company is not in
violation of or default under any law or regulation, or under
any order of any court or federal, state, municipal or other
governmental department, commission, board, bureau, agency or
instrumentality having jurisdiction over the Company and,
except to the extent set forth on Schedule 2.14, there are no
claims, actions, suits, proceedings, or responses to or
rejections of any required or voluntary filing or submission,
pending, or threatened against or affecting the Company, at
law or in equity, or before or by any federal, state,
municipal or other governmental department, commission board,
bureau, agency or instrumentality having jurisdiction over the
Company. The Company has conducted and is conducting its
business in compliance with, and is in compliance with the
requirements, standards, criteria and conditions set forth in
applicable federal, state and local statutes, ordinances,
permits, licenses, orders, approvals, variances, rules and
regulations and is not in violation of any of the foregoing
and has incurred no liability under the foregoing which might
materially adversely affect the business, operations, affairs,
prospects, properties, assets, profits or condition (financial
or otherwise) of the Company. Neither the execution and
delivery of this Agreement, the consummation of the
transactions contemplated herein, nor the compliance with the
terms and provisions hereof or thereof will conflict with or
result in a breach of any of the terms, conditions or
provisions of any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court
to which the Company or either Principals is subject,
including but not limited to federal and state securities
laws, or any provision of the charter or by-laws of the
Company; or conflict with, result in a breach of, constitute
a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease,
license, instrument, or other arrangement to which either
Principal or the Company is a party or by which either is
bound or to which any of any of their assets are subject.
2.15 Taxes. The Company has filed all federal, state, local and
other tax and information returns that it was required to
file. All such tax returns were correct and complete in all
respects. Other than as set forth on Schedule 2.15 hereof,
all taxes owed by the Company (whether or not shown on any tax
return) have been paid. The Company is not currently the
beneficiary of any extension of time within which to file any
tax return. No claim has ever been made by an authority in a
jurisdiction where the Company does not file tax returns that
it is or may be subject to taxation by that jurisdiction.
There are no security interests on any of the assets of the
Company that arose in connection with any failure or alledged
failure to pay any tax. The Company has withheld and paid all
taxes required to have been withheld and paid in connection
with amounts paid or owing to any employee, independent
contractor, creditor, stockholder, or other third party.
There are no claims against the Company of which the Company
has been notified or of which either Principal is aware for
federal, state, local or other taxes. The amounts shown as
provisions and reserves for taxes on the financial statements
of the Company as of the Balance Sheet Date and for the
periods then ended delivered to Purchaser as a part of
Schedule 2.5 are sufficient for the payment of all taxes of
all kinds for all fiscal periods ended on or before that date.
2.16 Copies Complete; No Default. The certified copies of the
charter documents and by-laws, both as amended to date, of the
Company and the copies of all leases, instruments, agreements,
licenses, permits, certificates or other documents, which have
been examined by or delivered to Purchaser in connection with
the transactions contemplated hereby, are complete and
correct; except as disclosed on Schedule 2.6 or Schedule
2.11.1 hereto, to the best of the knowledge of the Principals
no party thereto is in default thereunder; the rights and
benefits of the Company thereunder will not be materially
adversely affected by the transactions contemplated hereby;
and the execution of this Agreement and the performance of the
obligations hereunder will not violate or result in a breach
or constitute a default under any of the terms or provisions
thereof. Except as provided herein, none of such leases,
instruments, agreements, licenses, site assignments, permits,
certificates or other documents requires notice to, or the
consent or approval of, any governmental agency or other third
party regarding any of the transactions contemplated hereby;
any consents or approvals required shall be obtained by the
Principals and the Company prior to Closing.
2.17 No Governmental Contracts. The Company is not now nor has it
ever been a party to any governmental contracts subject to
price redetermination or renegotiation.
2.18 No Change. Since the Balance Sheet Date there has not been,
other than in the ordinary course of business:
2.18.1 any material adverse change in the financial
condition, assets, liabilities (contingent or
otherwise), income, operations or business of the
Company;
2.18.2 any material damage, destruction or loss (whether or
not covered by insurance) adversely affecting the
properties or business of the Company;
2.18.3 any change or agreement to change the ownership of the
authorized capital or outstanding securities of the
Company;
2.18.4 any declaration or payment of, or any agreement to
declare or pay, any dividend or distribution in
respect of an equity interest or any direct or
indirect redemption, purchase or other acquisition of
any of the stock of the Company;
2.18.5 any increase in the compensation payable or to become
payable by the Company to any of its directors,
officers, employees or agents, or any accrual or
arrangement for or payment of any bonus or other
special compensation to any employee or any severance
or termination pay paid to any present or former
officer or other key employee of the Company;
2.18.6 any labor trouble affecting the business or future
prospects of the Company;
2.18.7 (i) any sale or transfer, or any agreement to sell or
transfer, any assets, property or rights of the
Company to any other person, including, without
limitation, either Principal or any affiliate of
theirs (other than in the ordinary course of business)
or (ii) the cancellation, or agreement to cancel, any
indebtedness or other obligation of either Principal
or any affiliate of theirs to the Company, other than
as contemplated by this Agreement;
2.18.8 any plan, agreement or arrangement granting any
preferential rights to purchase or acquire any
interest in any of the assets, property or rights of
the Company or requiring consent of any party to the
transfer and assignment of any such assets, property
or rights;
2.18.9 any purchase or acquisition, or agreement, plan or
arrangement by the Company to purchase or acquire, any
property, rights or assets; any incurrence of
indebtedness by the Company or agreement, plan or
arrangement by the Company to incur any indebtedness;
2.18.10 any waiver by the Company of any material rights or
claims;
2.18.11 any material amendment or termination of any
contract, agreement, license, permit or other right
to which the Company is a party; or
2.18.12 any material transaction or commitment to undertake
any material transaction by the Company not
disclosed to Purchaser herein.
2.19 Binding Obligation. The Principals are individuals of
contractual capacity. Each Principal has full power and
authority to execute and deliver this Agreement and to perform
his obligations hereunder. This Agreement is a legal, valid
and binding obligation of each Principal and is enforceable
against each Principal in accordance with its terms, subject
to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally. Neither Principal need
give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions
contemplated by this Agreement.
2.20 No Misleading Statements. The representations and warranties
contained in this Agreement, the exhibits and schedules hereto
and all other documents and information furnished to Purchaser
and its representatives pursuant hereto, when taken as a
whole, do not and will not include any untrue statement of a
material fact or omit to state any material fact necessary to
make the statements made not misleading.
2.21 No Adverse Conditions. To the best of the Principals'
knowledge, other than general business and market conditions,
no condition or conditions exist or will exist on the Meeting
Date which may materially impair the operations of the Company
or may materially impair the future revenue or profitability
of the Company.
2.22 No Adverse Changes. Except as set forth on Schedule 2.6, no
material adverse change has occurred within the last three
years in the financial condition, assets, liabilities
(contingent or otherwise), income, operations or business of
the Company.
2.23 Accurate and Complete Statements. The books, ledgers,
financial records and other records of the Company:
2.23.1 have been fully, properly and accurately maintained,
are in the possession of the Company and contain true
and accurate records of all matters required to be
entered therein by law,
2.23.2 do not contain or reflect any material discrepancies,
and
2.23.3 give and reflect a true and fair representation of the
matters which ought to appear therein.
3 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
represents and warrants as follows:
3.1 Binding Obligation. Purchaser is an individual of contractual
capacity. Purchaser has full power and authority to execute
and deliver this Agreement and to perform his obligations
hereunder. This Agreement is a legal, valid and binding
obligation of Purchaser and is enforceable against Purchaser
in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors'
rights generally. Purchaser need not give any notice to, make
any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement.
3.2 No Default. Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated
herein, nor the compliance with the terms and provisions
hereof or thereof will conflict with or result in a breach of
any of the terms, conditions or provisions of any
constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Purchaser
is subject, including but not limited to federal and state
securities laws; or conflict with, result in a breach of,
constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement,
contract, lease, license, instrument, or other arrangement to
which Purchaser is a party or by which Purchaser is bound or
to which any of Purchaser's assets are subject.
3.3 Litigation. There is no litigation, administrative proceeding
or other action or proceeding pending or threatened against
Purchaser which would prevent or hinder performance by
Purchaser of his obligations under this Agreement.
3.4 Investment. Purchaser is acquiring the Stock for his own
account for investment and not with a view to, or for sale in
connection with, any distribution thereof, nor with any
present intention of distributing or selling the same; and
Purchaser has no present or contemplated agreement,
undertaking, arrangement, obligation, indebtedness or
commitment providing for the disposition thereof.
3.5 No Registration. Purchaser understands that the Stock has not
been registered under the Securities Act or any state
securities law, by reason of its issuance in a transaction
exempt from the registration requirements of the Securities
Act and such laws, and that it must be held indefinitely
unless it is subsequently registered under the Securities Act
and such laws or a subsequent disposition thereof is exempt
from registration. The certificates for the Stock shall bear
a legend to such effect.
3.6 Experience. Purchaser is a sophisticated investor with
sufficient knowledge and experience in business and financial
matters and with respect to investment in securities of public
companies so as to enable him to analyze and evaluate the
merits and risks of the investment contemplated hereby and is
able to bear the economic risk of such investment. Purchaser
has carefully reviewed the representations concerning the
Company contained in this Agreement and has made detailed
inquiry concerning the Company, its business and its
personnel; the officers of the Company have made available to
Purchaser any and all written information that he has
requested and have answered to Purchaser's satisfaction all
inquiries made by Purchaser; Purchaser has adequate net worth
to sustain a complete loss of its investment in the Company;
Purchaser's overall commitment to investments that are not
readily marketable is not disproportionate to his net worth
and Purchaser's investment in the Stock will not cause such
overall commitment to become excessive.
4 COVENANTS OF THE PARTIES PRIOR TO MEETING DATE. Between the
date of this Agreement and the Meeting Date:
4.1 Access; Confidential Information. The Principals and the
Company will afford to the authorized representatives of
Purchaser access to the plants, properties, books and records
of the Company and will furnish Purchaser with such additional
financial and operating data and other information as to the
business and properties of the Company as Purchaser may from
time to time request. Purchaser's investigations will not
unreasonably interfere with the Company's normal operations.
The Principals will cooperate with Purchaser, his
representatives and counsel in the preparation of any
documents or other material which may be required in
connection with any documents or materials required by any
governmental agency. Purchaser will cause all information
obtained from the Principals or the Company in connection with
the negotiation and performance of this Agreement to be
treated as confidential (except such information as Purchaser
may be required to disclose to any governmental agency or as
may already be in the public domain) and will not use, and
will not knowingly permit others to use, any such information
other than in connection with the transaction contemplated
hereby.
4.2 Operations. The Principals will cause the Company to:
4.2.1 carry on its business in substantially the same manner
as it has heretofore and not introduce any new method,
or discontinue any existing method, of management,
operation or accounting;
4.2.2 maintain its properties and facilities in as good
working order and condition as at present, ordinary
wear and tear excepted;
4.2.3 perform all its obligations under agreements relating
to or affecting its assets, properties and rights;
4.2.4 keep in full force and effect present insurance
policies or other comparable insurance coverage;
4.2.5 use its best efforts to maintain and preserve its
business organization intact, retain its present
employees and maintain its relationship with
suppliers, customers and others having business
relations with it;
4.2.6 advise Purchaser promptly in writing of any change in
any document, schedule or other information delivered
pursuant to this Agreement; and
4.2.7 file on a timely basis all notices, reports or other
filings required to be filed with or reported to any
federal, state, municipal or other governmental
department, commission, board, bureau, agency or any
instrumentality of any of the foregoing wherever
located necessary to maintain, renew or extend any
permit, license, variance or any other approval
required by any governmental authority or otherwise
necessary and/or required for the continuing operation
of the Company.
4.3 No Change. The Principals will not allow the Company, without
prior written consent of Purchaser, to:
4.3.1 make any change in its charter documents or by-laws;
4.3.2 authorize, issue, transfer or distribute any
securities of the Company, other than in the ordinary
course of trading;
4.3.3 enter into any contract or commitment or incur or
agree to incur any debt or any other liability, except
in the ordinary course of business; make any capital
expenditures; or enter into any arrangement with
respect to the accrual of bonuses to employees;
4.3.4 create, assume or otherwise voluntarily permit the
imposition of any mortgage, pledge or other lien or
encumbrance upon any assets or properties whether now
owned or hereafter acquired;
4.3.5 sell, assign, lease or otherwise transfer or dispose
of any property or equipment other than in the
ordinary course of business;
4.3.6 merge or consolidate or agree to merge or consolidate
with or into any other person, firm or corporation;
4.3.7 waive any material rights or claims;
4.3.8 amend or terminate any contract, agreement, license or
other right to which the Company is a party; or
4.3.9 enter into any transaction outside the ordinary course
of its business.
4.4 Required Certificates. A "Certificate of Good Standing" for
the Company issued by the Secretary of State of Wyoming will
be delivered to Purchaser by the Principals not later than the
Meeting Date. Certificates showing that all state franchise
(and/or income) taxes for the Company for all periods prior to
the Meeting Date, issued by the appropriate state agency in
Wyoming and in each state in which the Company is authorized
to do business, will be delivered to Purchaser by the
Principals, no later than the Meeting Date. Notwithstanding
the foregoing, if despite best efforts by the Principals to
obtain such certificates from the state of Wyoming they are
unable to do so prior to the Meeting Date, they shall deliver
in lieu thereof at the Meeting a certificate from the
Treasurer of the Company to the same effect and shall deliver
the certificate from the state of Wyoming subsequent to
Closing.
4.5 Public Statements. Before the Company or the Principals shall
release any information concerning this Agreement or the
transactions contemplated by this Agreement which is intended
for or may result in public dissemination thereof, they shall
cooperate with Purchaser, shall furnish drafts of all
documents or proposed oral statements to Purchaser for
comments, and shall not release any such information without
the written consent of Purchaser, which consent shall not be
unreasonably withheld. Before Purchaser shall release any
information concerning this Agreement or the transactions
contemplated by this Agreement which is intended for or may
result in public dissemination thereof, he shall cooperate
with the Principals, shall furnish drafts of all documents or
proposed oral statements to the Principals for comments, and
shall not release any such information without the written
consent of the Principals, which consent shall not be
unreasonably withheld. Nothing contained herein shall prevent
the Company, the Principals or Purchaser from releasing any
information to any governmental authority if required to do so
by law.
4.6 Securities Laws Compliance. The Principals and Purchaser
shall timely take all action necessary to ensure that the
transaction contemplated hereby will comply with all
applicable federal and state securities laws.
5 INDEMNIFICATION.
5.1 By Bradley. Subject to the other terms of this Section 5,
Bradley agrees to defend, indemnify and hold harmless
Purchaser from, against and in respect of:
5.1.1 any and all damages, loss, deficiency, costs or
expenses exceeding $5,000 in the aggregate and
resulting from any misrepresentation, breach of
warranty, or nonfulfillment of any agreement or
covenant on the part of either Principal under this
Agreement or any misrepresentation in or omission from
any list, schedule, certificate, or other instrument
furnished or to be furnished to Purchaser pursuant to
the terms of this Agreement; and including in each
case all costs and expenses of all actions, suits,
proceedings, demands, assessments and adjustments
(including specifically, but without limitation,
attorneys' fees and expenses of investigation)
incident to any of the foregoing (all of which costs
shall be included in calculation of the aggregate
threshold referred to above).
5.2 By Purchaser. Subject to the other terms of this Section 5,
the Purchaser agrees to defend, indemnify and hold harmless
the Company and Bradley from, against and in respect of:
5.2.1 any and all damages, loss, deficiency, costs or
expenses exceeding $5,000 in the aggregate and
resulting from any misrepresentation, breach of
warranty, or nonfulfillment of any agreement or
covenant on the part of Purchaser under this Agreement
or any misrepresentation in or omission from any list,
schedule, certificate, or other instrument furnished
or to be furnished to Principals pursuant to the terms
of this Agreement; and including in each case all
costs and expenses of all actions, suits, proceedings,
demands, assessments and adjustments (including
specifically, but without limitation, attorneys' fees
and expenses of investigation) incident to any of the
foregoing (all of which costs shall be included in
calculation of the aggregate threshold referred to
above).
5.3 Notice. Notice shall be given promptly to each indemnifying
party of any claim or litigation the existence of which gives
rise to the operation of the foregoing indemnity. The
indemnifying party(ies) shall investigate and defend such
claim at their expense. Any settlement shall be with the
consent of the indemnified party(ies). If the indemnifying
party(ies) fail to defend the claim, the indemnified
party(ies) may defend such claim with power to settle and the
indemnifying party(ies) shall pay the costs and expenses
thereof and the amount of any settlement or judgment.
6 CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER. Except as
otherwise provided in this Section 6, the obligations of
Purchaser hereunder are, at his option, subject to the
satisfaction, on or prior to the Meeting Date, of each of the
following conditions.
6.1 Accuracy of Representations; Performance of Covenants. The
representations and warranties of the Principals contained in
this Agreement shall be true on and as of the Meeting Date
with the same effect as though such representations and
warranties had been made on and as of such date; each and all
of the agreements of the Principals and the Company to be
performed on or before the Meeting Date pursuant to the terms
hereof shall have been performed; and the Principals shall
have delivered to Purchaser a certificate dated the Meeting
Date and signed by the Principals to all such effects.
6.2 Governmental Contracts; No Litigation. All necessary consents
of, notices to, and filings with any governmental authority or
agency, including without limitation the Securities and
Exchange Commission, relating to the consummation of the
transactions contemplated in this Agreement shall have been
obtained or accomplished and no action or proceeding before a
court or any other governmental agency or body shall have been
instituted or threatened to restrain or prohibit the
acquisition by Purchaser of the shares and no governmental
agency or body shall have taken any other action or made any
request of Purchaser in connection with this transaction as a
result of which Purchaser reasonably deems it inadvisable to
proceed with the transactions hereunder.
6.3 No Adverse Change. No adverse change in the results of
operations, financial condition or business of the Company
shall have occurred, and the Company shall not have suffered
any loss or damage to any of its properties or assets, whether
or not covered by insurance, since the Balance Sheet Date,
which change, loss or damage materially adversely affects or
impairs the ability of the Company to conduct its business and
Purchaser shall have received a certificate signed by the
Principals dated the Meeting Date to such effect.
6.4 Updates. The Principals shall have delivered to Purchaser
accurate updates to each of the schedules to this Agreement,
as of the Meeting Date, showing all additions or changes to
the items described in each of such schedules arising since
the date of such schedules.
6.5 Resignations. The Principals shall have delivered to
Purchaser the resignation effective as of the Meeting Date of
Tolerton as director, secretary and treasurer of the Company.
6.6 Releases. The Principals shall have delivered to Purchaser an
instrument dated the Meeting Date releasing the Company and
Purchaser from any and all claims of the Principals against
the Company through such date.
6.7 Approval by Counsel. All actions, proceedings, instruments
and documents required to carry out this Agreement or
incidental hereto and all other related legal matters shall
have met the reasonable satisfaction of counsel to Purchaser
and such counsel shall have been furnished with all such
documents and instruments as they shall have reasonably
requested in connection with the transactions contemplated
herein.
6.8 Investment by Others. No offer shall have been publicly
proposed or made by any other party to purchase five percent
(5%) or more of the outstanding shares of the Company's common
stock. Purchaser shall not have otherwise acquired knowledge
that more than five percent (5%) of the outstanding shares of
the Company's common stock has been or may be acquired by a
person (as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) other
than Purchaser. No person (as so defined) shall have filed
with the Securities and Exchange Commission a Schedule 13D
indicating the acquisition of or an intention to acquire
beneficial ownership (as defined in Rule 13d-3 promulgated
under the Exchange Act) of more than 5% of any class of the
outstanding voting securities of the Company.
7 CONDITION PRECEDENT TO OBLIGATIONS OF THE COMPANY AND THE
PRINCIPALS. The obligations of the Company and the Principals
hereunder are, at their option, subject to the satisfaction,
on or prior to the Meeting Date, of the condition that the
representations and warranties of Purchaser contained in
Section 3 shall be accurate as of the Meeting Date as though
such representations and warranties had been made at and as of
that time; all of the terms, covenants and conditions of this
Agreement to be complied with and performed by Purchaser on or
before the Meeting Date shall have been duly complied with and
performed; and a certificate to the foregoing effect dated the
Meeting Date and signed by Purchaser shall have been delivered
to the Principals.
8 TERMINATION.
8.1 By Purchaser. Purchaser may terminate this Agreement by
giving written notice to the Company:
8.1.1 on or before the 30th day following the date of this
Agreement if Purchaser is not satisfied with the
results of his continuing business, legal and
accounting due diligence regarding the Company; or
8.1.2 at any time prior to the Meeting Date (i) in the event
the Company or either Principal has breached any
material representation, warranty or covenant
contained in this Agreement in any material respect,
Purchaser has notified the Company of the breach, and
the breach has continued without cure for a period of
fifteen (15) days after notice of breach; or (ii) if
the Meeting shall not have occurred on or before
November 20, 1999 (unless the failure results
primarily from Purchaser himself breaching any
representation, warranty or covenant contained in this
Agreement).
9 SURVIVAL OF REPRESENTATIONS. The representations, warranties,
covenants and agreements of the parties contained in this
Agreement or in any writing delivered pursuant to the
provisions of this Agreement shall survive the consummation of
the transactions contemplated hereby and any examination on
behalf of the parties.
10 GENERAL.
10.1 Additional Conveyances. Upon the execution of this Agreement,
Purchaser and Principals mutually agree to promptly undertake,
and to pursue, cooperatively and diligently, the obtaining of
all approvals, consents and authorizations required to be
given by third parties, governmental or private, that are
necessary or appropriate to effect the transactions
contemplated in this Agreement in an expeditious and prudent
manner. In addition, the Principals shall deliver or cause to
be delivered on the Meeting Date, and at such other times and
places as shall be reasonably agreed on, such additional
instruments as Purchaser may reasonably request for the
purpose of carrying out this Agreement. The Principals will
cooperate and use its best efforts to have the present
officers, directors and employees of the Company cooperate
with Purchaser on and after the Meeting Date in furnishing
information, evidence, testimony and other assistance in
connection with any actions, proceedings, arrangements or
disputes of any nature with respect to matters pertaining to
all periods prior to the Meeting Date.
10.2 Assignment. This Agreement and the rights of the Principals
and the Company hereunder may not be assigned by either
Principal or the Company (except by operation of law).
Purchaser may assign his rights hereunder only to a member of
his immediate family or to a legal entity controlled by him,
but shall not be thereby relieved of his obligations
hereunder. Subject to the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of the parties
hereto, and their heirs, successors, legal representatives and
permissible assigns.
10.3 Entire Agreement. This Agreement (including the schedules and
exhibits hereto) and the documents delivered pursuant hereto
constitute the entire agreement and understanding among the
Company, the Principals, Hawks and Purchaser and supersede any
prior agreement and understanding relating to the subject
matter of this Agreement. This Agreement may be modified or
amended only by a written instrument executed by the Company,
the Principals and Purchaser each acting through its duly
authorized agent.
10.4 Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an
original and all of which together shall constitute but one
and the same instrument.
10.5 Brokers. Each party represents and warrants that it employed
no broker or agent in connection with this transaction and
agrees to indemnify the other against all other loss, cost,
damage or expense arising out of claims for fees or
commissions of other brokers or agents employed or alleged to
have been employed by such party.
10.6 Fees and Expenses. Whether or not the transactions herein
contemplated shall be consummated, Purchaser will pay the
fees, expenses and disbursements of Purchaser and his agents,
representatives, accountants and counsel incurred in
connection with the subject matter of this Agreement and any
amendments thereto. The Principals will pay the fees,
expenses and disbursements of the Principals and their agents,
representatives, accountants and counsel incurred in
connection with the subject matter of this Agreement and any
amendments hereto and all other costs and expenses incurred in
the performance and compliance with all conditions to be
performed by the Principals under this Agreement.
10.7 Notices. Any notice or communication required or permitted
hereunder shall be sufficiently given when sent by first class
mail, postage prepaid and simultaneously sent by facsimile:
(a) If to Purchaser, addressed to him at:
Michael D. Herman
1565 Old Stage Rd.
Colorado Springs, CO 80906
Facsimile Number: 719-475-7779
With a copy to:
Julia K. O'Neill, Esq.
Fleming & O'Neill, P.C.
268 Summer St.
Third Floor
Boston, MA 02210
Facsimile Number: (617) 350-7797
(b) If to the Principals or the Company, to them at:
Jack C. Bradley
Wyoming Oil & Minerals, Inc.
330 S. Center, Suite 419
Casper, WY 82601
Facsimile Number: (307) 234-5516
With a copy to the Company's counsel at:
Samuel Wing, Esq.
Jones & Keller
1625 Broadway, Suite 1600
Denver, CO 80202
Facsimile Number: (303) 893-6506
10.8 Applicable Law. This Agreement shall be construed in
accordance with and governed by the laws of the state of
Wyoming.
10.9 Captions. The captions in this Agreement are for convenience
only and shall not be considered a part hereof or affect the
construction or interpretation of any provisions of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
Witness: Purchaser
/s/ /s/ Michael D. Herman
Michael D. Herman
Witness: Wyoming Oil & Minerals, Inc.
/s/ /s/ Jess A. Tolerton, Chairman
By: Jess A. Tolerton, Chairman
Witness:
/s/ /s/ Jess A. Tolerton
Jess A. Tolerton, Individually
Witness:
/s/ /s/ Jack C. Bradley
Jack C. Bradley, Individually
Witness: The Hawks Company Limited Partnership
(Solely with respect to Section 1.5)
/s/
By: /s/ Donald Galles
Donald Galles, duly authorized
EXHIBIT A
ESCROW AGREEMENT
This Escrow Agreement is dated as of the 29th day of October, 1999, among
Wyoming Oil & Minerals, Inc. ("WOM") ; Michael D. Herman ("Herman") [or his
permissible assignee]; Jack Bradley ("Bradley"); and Julia K. O'Neill, Esq., as
escrow agent (the "Escrow Agent").
In consideration of the mutual covenants set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. WOM has delivered to the Escrow Agent on or prior to this date
certificate(s) representing seven million four hundred thousand (7,400,000)
shares of common stock in WOM, issued in the name of Herman (the "Shares"), in
accordance with the Stock Purchase and Restructuring Agreement executed by WOM,
Herman, Bradley et al. dated October 29, 1999 (the "Definitive Agreement").
2. On the date of the special shareholders' meeting (the "Meeting") to
be held by WOM in accordance with the Definitive Agreement, Herman shall cause
each person proposed by Herman (including Herman) and elected to the Board of
Directors of WOM at said meeting (not including Bradley) to execute and deliver
to Herman an undated resignation from such position. Herman shall immediately
deliver same (the "Resignations") to the Escrow Agent.
3. The Escrow Agent shall hold and distribute the Shares and
Resignations as follows.
(a) If Bradley does not deliver any Notice of Default, as
described below, to the Escrow Agent on or before the date which is 105
days after the Meeting, then on such date the Escrow Agent shall
immediately distribute the Shares to Herman and shall destroy the
Resignations. This Agreement shall thereupon automatically terminate.
(b) If Bradley delivers a Notice of Default to the Escrow Agent at
any time on or before the date which is 105 days after the Meeting, then
Escrow Agent shall immediately notify Herman of her receipt of Bradley's
Notice of Default and shall provide a copy of such notice to Herman
promptly thereafter. Herman shall have the right to dispute, by notice to
the Escrow Agent, any such Notice of Default for a period of fourteen (14)
days after delivery of such notice by Escrow Agent to Herman. In the
event Herman does so dispute such Notice of Default, the provisions of
Section 4(d) shall apply. If Bradley has delivered a Notice of Default to
the Escrow Agent at any time on or before the date which is 105 days after
the Meeting, and Herman does not so dispute such Notice of Default within
said fourteen (14) day period, then the Escrow Agent shall promptly
deliver the Shares to WOM, in care of Bradley, for cancellation, and shall
simultaneously deliver the Resignations to WOM, in care of Bradley.
(c) Bradley shall be entitled to deliver a Notice of Default to
the Escrow Agent only within fourteen (14) days after the occurrence of
any of the following:
(i) Herman's failure to timely cause the termination of
Bradley's personal guaranties in accordance with Section
1.2 of the Definitive Agreement;
(ii) Herman's failure to timely cause the payment of inter-
company accounts in accordance with Section 1.3 of the
Definitive Agreement; or
(iii) Herman's failure to timely cause the consummation of the
sales of stock described in Section 1.5 of the Definitive
Agreement, in accordance therewith.
4. The Shares and Resignations shall be held by the Escrow Agent
pursuant to the additional terms set forth below:
(a) The duties and obligations of the Escrow Agent shall be
determined solely by the express provisions of this Agreement and no
implied duties or obligations shall be implied against the Escrow Agent.
Further, the Escrow Agent shall be under no obligation to refer to any
other document between the other parties hereto related in any way to this
Agreement, other than the Definitive Agreement.
(b) The Escrow Agent shall not be liable to anyone by reason of
any error or judgment, or for any act done or step taken or omitted by the
Escrow Agent in good faith, or for any mistake of fact or law, or for
anything which the Escrow Agent may do or refrain from doing in connection
herewith, unless caused by or arising out of the Escrow Agent's actual and
intentional misconduct.
(c) The Escrow Agent shall be entitled to rely, and shall be
protected in acting in reliance, upon any writing furnished to the Escrow
Agent by any party; shall further be entitled to treat as genuine, and as
the document it purports to be, any letter, paper or other document
furnished to the Escrow Agent in connection with her role as Escrow Agent;
and may rely on any affidavit of any party as to the existence of any
facts stated therein to be known by the affiant; provided, however, that
the Escrow Agent has provided a notice accompanied by a copy of such
writing, document, letter or paper to each party hereto with a copy to
such party's attorney and has not received from any party hereto notice of
dispute of any of the contents or status of same within seven (7) days
after the giving of such notice from the Escrow Agent.
(d) In the event of any disagreement between Bradley and Herman
resulting in adverse claims and demands being made in connection with or
against the items held in escrow, the Escrow Agent shall be entitled, at
her option, to refuse to comply with the claims or demands of either party
until such disagreement is finally resolved (i) by an arbitrator hearing
the dispute pursuant to the rules of the American Arbitration Association,
to which arbitration the parties hereby agree to submit in the event of
any dispute, and in so doing the Escrow Agent shall not be or become
liable to any party, or (ii) by written settlement between the parties.
The Parties agree that any arbitration shall be at WOM's expense and shall
take place in Cheyenne, Wyoming and that Wyoming law shall control in all
respects.
(e) Herman and Bradley agree, jointly and severally, to indemnify
and hold harmless the Escrow Agent against any and all losses,
liabilities, costs (including legal fees) and other expenses in any way
incurred by the Escrow Agent in connection with or as a result of any
disagreement between the parties under this Agreement or otherwise
incurred by the Escrow Agent in any way on account of her role as escrow
agent, except as otherwise specifically provided in this Agreement;
provided, however, that if it is determined in an arbitration that any
party was a defaulting party, then that party shall solely indemnify and
hold harmless the Escrow Agent, and the non-defaulting party shall not be
required to indemnify and hold harmless the Escrow Agent pursuant hereto.
5. All notices and other communications required or permitted hereunder
must be in writing and shall be deemed sufficiently given or served for all
purposes herein set forth when received, if hand delivered, or if mailed by
registered or certified mail, return receipt requested, when so mailed and
simultaneously sent by facsimile, addressed, if to Escrow Agent, to:
Julia K. O'Neill, Esq.
Fleming & O'Neill, P.C.
268 Summer St., 3d Floor
Boston, MA 02210
Fax: (617) 350-7797
If to Herman, to:
Michael D. Herman
1565 Old Stage Road
Colorado Springs, CO 80906
Fax: (719) 475-7779
If to Bradley, to:
Jack Bradley
330 S. Center, Suite 419
Casper, WY 82601
Fax: 307-234-5516
or to such other address as may be specified from time to time by such party by
such notice to the other parties.
6. This Agreement and the rights and obligations of the parties
hereunder shall be governed by, construed and enforced in accordance with the
laws of the State of Wyoming applicable to agreements to be performed entirely
within such state.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the day and year first above written.
/s/ Michael D. Herman
Michael D. Herman
/s/ Jack Bradley
Jack Bradley
Wyoming Oil & Minerals, Inc.
Receipt of the Shares is hereby By:/s/ Jess A. Tolerton
acknowledged: Jess A. Tolerton, Chairman
/s/ Julia K. O'Neill /s/ Julia K. O'Neill
Julia K. O'Neill, Escrow Agent Julia K. O'Neill, as Escrow Agent
Receipt of the Resignations is
hereby acknowledged:
Julia K. O'Neill, Escrow Agent
