AS OF THE DATE OF
THIS AGREEMENT AND WILL BE MATERIALLY TRUE AND CORRECT ON AND AS OF THE CLOSING
DATE:
(A)
ORGANIZATION AND LICENSING.
MOUNTAIN
STATES IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING, AND IN GOOD STANDING
UNDER THE LAWS OF THE STATE OF NEW MEXICO AND HAS THE POWER TO OWN, LEASE AND
USE THE PROPERTIES USED IN ITS BUSINESS AND TO CARRY ON ITS BUSINESS AS NOW
BEING CONDUCTED. MOUNTAIN STATES IS DULY QUALIFIED TO DO BUSINESS AND IS IN GOOD
STANDING AS A FOREIGN CORPORATION IN EACH STATE AND JURISDICTION WHERE
QUALIFICATION AS A FOREIGN CORPORATION IS REQUIRED, EXCEPT TO THE EXTENT THAT
ANY VARIATION OR FAILURE THEREOF DOES NOT HAVE A MATERIAL ADVERSE EFFECT.
SCHEDULE 6.1(A) LISTS (I) THE STATES AND OTHER JURISDICTIONS WHERE MOUNTAIN
STATES IS SO QUALIFIED; AND (II) THE ASSUMED NAMES UNDER WHICH MOUNTAIN STATES
CONDUCTS BUSINESS OR HAS CONDUCTED BUSINESS DURING THE PAST FIVE (5) YEARS. ALL
PERMITS, LICENSES AND CERTIFICATES REQUIRED BY ANY GOVERNMENTAL AUTHORITY HAVING
JURISDICTION OVER MOUNTAIN STATES OR ITS OPERATIONS, ARE NOW AND WILL BE CURRENT
AND VALID AS OF THE CLOSING DATE. MOUNTAIN STATES HAS PREVIOUSLY DELIVERED OR
MADE AVAILABLE TO APOLLO AND APOLLO PRODUCTION COMPLETE AND CORRECT COPIES OF
ITS ARTICLES OF INCORPORATION, BYLAWS, AND OTHER ORGANIZATIONAL DOCUMENTS AS
AMENDED AND PRESENTLY IN EFFECT.
Each of Neptune and Golden Spread has full power and authority to enter into
this Agreement, to consummate the transactions contemplated hereby and to
perform, or to cause Mountain States to perform, their or its obligations
hereunder.
The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein by Seller have been duly
authorized by all requisite corporate action on the part of Neptune and of
Golden Spread.
This Agreement has been duly executed and delivered by each of
Neptune and of Golden Spread and is a valid and binding obligation of each of
them, enforceable against them in accordance with its terms, except to the
extent that such enforceability (i) may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws relating to creditors' rights
generally, and (ii) is subject to general principles of equity.
(B)
SUBSIDIARIES.
EXCEPT AS REFLECTED ON
SCHEDULE 6.1(B), MOUNTAIN STATES HAS NO SUBSIDIARIES.
(C)
CAPITALIZATION.
THE ISSUED AND OUTSTANDING
STOCK OF MOUNTAIN STATES IS SET FORTH IN SCHEDULE 6.1(C) HERETO. THE STOCK
LISTED ON SCHEDULE 6.1(C) HERETO CONSTITUTES ALL THE ISSUED AND OUTSTANDING
STOCK OF MOUNTAIN STATES AND HAS BEEN VALIDLY AUTHORIZED AND ISSUED, IS FULLY
PAID AND NONASSESSABLE, AND HAS NOT BEEN ISSUED IN VIOLATION OF ANY PREEMPTIVE
RIGHTS OR OF ANY FEDERAL OR STATE SECURITIES LAW. THERE IS NO SECURITY, OPTION,
WARRANT, RIGHT, CALL, SUBSCRIPTION,
14
AGREEMENT, COMMITMENT OR UNDERSTANDING OF ANY NATURE WHATSOEVER, FIXED OR
CONTINGENT, THAT DIRECTLY OR INDIRECTLY (I) CALLS FOR THE ISSUANCE, SALE, PLEDGE
OR OTHER DISPOSITION OF ANY STOCK OF MOUNTAIN STATES, OR ANY SECURITIES
CONVERTIBLE INTO, OR OTHER RIGHTS TO ACQUIRE, ANY STOCK OF MOUNTAIN STATES; OR
(II) OBLIGATES MOUNTAIN