ENSV ENSERVCO Corporation

Exhibit 10.1

ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT (“Agreement”) is made and entered into as of September 11, 2023, by and among OilServ, LLC, a Delaware limited liability company (the “Owner”), the Owner’s wholly-owned subsidiaries, Rapid Hot Flow, LLC, a Colorado limited liability company and Rapid Pressure Services, LLC, a Delaware limited liability company (each of the foregoing a “Seller” and collectively, the “Sellers”) and together with Owner, the “Selling Parties”), and Heat Waves Hot Oil Service LLC, a Colorado limited liability company, a wholly-owned subsidiary of Enservco Corporation, a Delaware corporation (“Enservco”) (“Purchaser”, and all of the foregoing, sometimes referred to individually as a “Party” and collectively as, the “Parties”).

RECITALS

A.    Sellers are engaged in the business of providing frac water heating services to the oil and gas industry primarily in Ohio, Pennsylvania and West Virginia (the “Business”).

B.    Owner owns 100% of the issued and outstanding equity of the Sellers.

C.    The Selling Parties desire to sell to Purchaser, and Purchaser desires to purchase from the Selling Parties, the Business as a going concern and substantially all of the assets and rights owned and/or used by the Selling Parties in the Business (other than the Excluded Assets (as defined below)), upon the terms and conditions set forth in this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual promises and conditions contained herein, the Parties hereby agree as follows:

1.1    Purchased Assets. On the Closing Date (defined herein), and subject to the terms and conditions set forth in this Agreement, the Selling Parties agree to sell, assign, transfer and deliver to Purchaser, and Purchaser agrees to purchase and accept from the Selling Parties, all right, title and interest in and to all assets owned by Sellers or used in the Business, which shall include, at a minimum, the properties, assets and rights set forth on Schedule 1.1 hereto, as well as all of the following properties, assets and rights relating to the Business existing as of the Closing Date, other than the Excluded Assets (collectively, the “Purchased Assets”):

(a)    all furniture, fixtures, equipment, vehicles, trailers, machinery, computers and other tangible personal property used in the operation and maintenance of the Business;

(b)    all inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories of the Business (including any products used to perform the services performed in the Business) (collectively, the “Inventory”);

(c)    all of Sellers’ intangible assets, including, without limitation, (i) all files, books, records, work papers, and other documents related to the Business; (ii) customer and supplier lists, files, and other information relating to the customers and suppliers of the Business, (iii) all rights under contracts and agreements, oral or written, that are used by Sellers in the conduct of the Business and are in effect as of the Closing Date (collectively, the “Contracts”); and (iv) all goodwill, going-concern value and other general intangibles of Sellers related to the Business;

(d)    to the extent transferable, all permits, authorizations and licenses used by Sellers in the conduct of the Business, including, without limitation, Sellers’ license(s) to operate the Business;

(e)    the telephone number(s), fax number(s), Internet domain name(s), and social media account(s) owned or used by Sellers in connection with the Business;

(f)    all records of the Business relating to the Assumed Liabilities (as defined below), and the related deposits for rental facilities for the Assumed Liabilities;

(g)    any and all other properties, assets and rights of Sellers that are used in the conduct of the Business and not expressly listed or referred to in Section 1.2 below.

1.2    Excluded Assets. The following properties, assets and rights (the “Excluded Assets”) shall not be transferred to Purchaser and shall not be included within the definition of Purchased Assets:

(a)    all cash and cash equivalents (ii) prepaid expenses, and (iii) accounts receivable;

(b)    Sellers’ rights under this Agreement or any other agreement between Sellers and Purchaser entered into on or after the Closing Date in accordance with the terms hereof and thereof, respectively; and

(c)    Sellers’ minute books, stock ledger, and Tax Returns (as defined below).

1.3    Assumption of Liabilities. Subject to the terms and conditions hereof, Purchaser hereby agrees to assume only the specific obligations of Sellers identified on Schedule 1.3 (collectively, the “Assumed Liabilities”). Except for the Assumed Liabilities, Purchaser shall not and does not assume any liabilities or obligations of the Selling Parties. Notwithstanding anything in this Agreement to the contrary, the Selling Parties shall be responsible for all liabilities and obligations of the Selling Parties arising from ownership of the Purchased Assets and/or the operation of the Business and not hereby expressly assumed by Purchaser and Purchaser shall not assume, or in any way be liable or responsible for, any such liabilities or obligations (collectively, the “Excluded Liabilities”).

2.1    Purchase Price. The aggregate “Purchase Price” shall be One Million Fifty Seven Thousand Five Hundred dollars ($1,057,500.00) to be paid in Shares of Enservco common stock (the “Transaction Shares”) which Enservco shall be issued to Owner on behalf of Seller based on the volume weighted moving average of Enservco Common Stock for the 10 day period immediately preceding the Closing Date.

2.2    Sales Taxes and Expenses. Sellers shall pay all Taxes associated with (i) the operation of the Business prior to the Closing and (ii) the sale and conveyance of the Purchased Assets pursuant to this Agreement. Except as otherwise expressly provided in this Agreement, Sellers and Purchaser shall each pay their own respective costs and expenses in connection with this Agreement and the Transaction (as defined below).

2.3    Closing. The consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place via an electronic exchange of documents, simultaneously on the date hereof, or at such other time or place or in such other manner as the Parties may mutually agree upon in writing (the “Closing Date”). Closing shall be effective as of 12:01am Central Time on the Closing Date. The Parties agree to use commercially reasonable efforts to achieve the Closing.

2.4    Purchased Asset Transfer Fees. Purchaser shall pay the transfer fees or excise taxes related to the transfer of the vehicles and other Purchased Assets.

2.5    Final Payroll. Sellers shall be responsible for the final payroll and all accrued employee obligations (including, but not limited to, accrued paid time off) and associated payroll taxes (collectively, the “Final Payroll Obligations”) immediately prior to the Closing Date. If the Parties agree that the Closing shall occur at such other time than at the end of a payroll period, then the Purchaser shall reimburse Seller by the amount necessary to cover the Final Payroll Obligations accrued through the day prior to Closing Date, as a post-closing adjustment made within seven days of Closing. In addition and notwithstanding Seller's Employment Obligations as provided in Section 5.1 below, Purchaser shall also reimburse Seller for (i) pro-rated health and welfare payroll benefits through the end of the month in which Closing occurs, (ii) pro-rated September rent for leases included in Assumed Liabilities and (ii) deposits related to the leases included as Assumed Liabilities as a post-closing adjustment. The foregoing reimbursements shall be made via a cash payment within seven days from the date of Closing.

2.6    Closing Deliverables.

(a)    At the Closing, the Selling Parties shall deliver, or shall cause to be delivered, as applicable, the following:

(i)    a bill of sale, assignment and assumption agreement, in the form attached hereto as Exhibit A (the “Bill of Sale, Assignment and Assumption Agreement”), duly executed by the Selling Parties;

(ii)    an employment agreement between Michael Lade and Purchaser, in the form attached hereto as Exhibit B (the “Employment Agreement”) duly executed;

(iii)    resolutions of the board of directors (or equivalent) and Owner, which authorize the execution, delivery and performance of the Transaction Documents (as defined below) to which each Seller is a party, and the consummation of the transactions contemplated thereby;

(iv)    evidence, in form and substance reasonably satisfactory to Purchaser, that of all security interests, mortgages, pledges, liens (statutory or other), charges, encumbrances, community property interests, conditions, equitable interests, options, restrictions on use, and claims of any kind or nature (“Liens”) set forth on Schedule 2.6(a)(iv) have been released;

(v)    evidence, in form and substance reasonably satisfactory to Purchaser, that all governmental and regulatory approvals and consents requisite or appropriate to the consummation of the Transaction (including, without limitation, consents required under the Contracts) shall have been obtained (or all applicable waiting periods shall have expired), and that such consents or approvals remain in full force and effect;

(vi)    evidence, in form and substance reasonably satisfactory to Purchaser, that Sellers have terminated the employment of Sellers’ employees as contemplated by Section 5.1 below;

(vii)    evidence, in form and substance reasonably satisfactory to Purchaser, that the Sellers have agreed to terminate Seller’s 401-K plan; and

(viii)    such other customary instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to Purchaser (collectively with this Agreement, the Bill of Sale, Assignment and Assumption Agreement, and the Employment Agreement, the “Transaction Documents”), as may be required to give effect to the Transaction Documents and the transactions contemplated thereby (collectively, the “Transaction”).

(b)    At the Closing, Purchaser shall deliver, as applicable, the following:

(i)    Evidence of the issuance of ninety percent (90%) of the Transaction Shares;

(ii)    the Bill of Sale, Assignment and Assumption Agreement, duly executed by Purchaser;

(iii)    the Employment Agreement, duly executed by Purchaser;

(iv)    a certificate of the Secretary (or equivalent officer) of Purchaser certifying as to (A) the resolutions of the board of directors (or equivalent) which authorize the execution, delivery and performance of the Transaction Documents, and the consummation of the transactions contemplated thereby, (B) the names and signatures of the officers of Purchaser authorized to sign the Transaction Documents, and (C) the appointment of Steve Weyel to the Enservco Corporation board of directors; and

(v)    such other customary and reasonable instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to the Selling Parties, as may be required to give effect to the Transaction.

2.7    Escrow. Notwithstanding anything herein to the contrary, Purchaser shall retain ten percent (10%) of the Transaction Shares (the “ Escrow Amount”) at the Closing. The Escrow Amount shall be issued to Owner following the sixth month anniversary of the Closing (the “Escrow Period”) subject to the indemnification provisions as provided in Section 6 hereof. Subject to any indemnification, the balance of the Escrow Amount, if any, shall be issued to the Owner within ten (10) business days of when the Escrow Period ends.

2.8    Transaction Shares. The Selling Parties acknowledge and agree that the Transaction Shares will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), or qualified under the securities laws of any state (“Blue Sky Laws”) on the grounds that the offering and sale of the Transaction Shares contemplated by this Agreement are exempt from registration under the Securities Act and the Blue Sky Laws. The Selling Parties acknowledge and agree that, subject to registration under the Securities Act and Blue Sky Laws or an exemption to such registration, the Transaction Shares are not transferable, except that Owner may assign to its members the Transaction Shares during the liquidation process for dissolving the Selling Parties. Any certificate representing the Transaction Shares shall contain the following legends:

(a)     “THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) AND ARE “RESTRICTED SECURITIES” AS DEFINED IN RULE 144 PROMULGATED UNDER THE ACT. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED EXCEPT (i) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE ACT OR (ii) IN COMPLIANCE WITH RULE 144, OR (iii) PURSUANT TO AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE CORPORATION, THAT SUCH REGISTRATION OR COMPLIANCE IS NOT REQUIRED AS TO SAID SALE, OFFER OR DISTRIBUTION.”

3.1    Due Formation. Sellers are duly qualified and organized, and are validly existing and in good standing under the laws of each state of formation and have the power and authority and all authorizations, licenses, permits and certifications necessary to own and operate its properties and to properly carry on the Business. Sellers are qualified or otherwise authorized to transact business as a foreign corporation in each jurisdiction in which the nature and operation of the Business requires such qualification.

3.2    Authorization of Agreements; Validity; No Conflict. The execution and delivery of the Transaction Documents by the Selling Parties, and the performance by the Selling Parties of their respective obligations thereunder, has been duly authorized by all requisite action, including required corporate action and approval by Selling Parties’ members, managers, governors and/or board of directors, constitutes the legal, valid, and binding obligations of such parties, and will not (a) violate any federal, state, local, municipal, foreign or other laws, regulations or legal requirements, including, without limitation, any order of any court or other governmental body, to which any Selling Party or any of the Purchased Assets are bound or subject, (b) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default by any Selling Party under any agreement to which such Selling Party or any of the Purchased Assets are bound or subject; or (c) except as set forth on Schedule 3.13, require any consent under any such agreement or result in the creation or imposition of any Lien or encumbrance of any kind upon the Business or the Purchased Assets.

3.3    Ownership. The Owner owns 100% of the outstanding equity and other ownership interests, if any, in the Sellers. There are no outstanding subscriptions, options, warrants, calls, contracts, demands, commitments, convertible securities or other agreements or arrangements of any character or nature pursuant to which the Sellers are obligated to issue any securities or rights similar thereto of any kind of the Sellers. There are no outstanding subscriptions, options, warrants, calls, contracts, demands, commitments, convertible securities or other agreements or arrangements of any character or nature pursuant to which the Owner is obligated to issue any securities or rights similar thereto of any kind of the Owner.

3.4    Financial Information. Attached hereto as Schedule 3.4 are: (a) complete copies of the unaudited financial statements consisting of the balance sheet of the Business as at December 31 in each of the years, 2021 and 2022 and the related statements of income and retained earnings, owner equity and cash flow (if any) for the years then ended (the “Historical Financial Statements”), and unaudited financial statements consisting of the balance sheet of the Business as at June 30, 2023 and the related statements of income for the three (3) month period then ended (the “Interim Financial Statements” and together with the Historical Financial Statements, the “Financial Statements”). The Financial Statements are based on the books and records of the Business, are prepared consistent with past practices of the Business and fairly present the financial condition of the Business as of the respective dates they were prepared and the results of the operations of the Business for the periods indicated.

3.5    Assumed Liabilities. The Assumed Liabilities were incurred by Sellers in the ordinary course consistent with past practice and are directly related to the Business.

3.6    No Undisclosed Liabilities. Sellers have no debts, liabilities or obligations, except for (i) liabilities specifically identified on the face of the balance sheet contained in the most recent Financial Statements, and (ii) liabilities that have arisen since the date of such balance sheet in the ordinary course of business. None of such known debts, liabilities or obligations result from, arise out of, relate to, are in the nature of, or were caused by any breach of contract, breach of warranty, tort, infringement, or violation of law, and none of such known debts, liabilities or obligations, individually or in the aggregate, will have a material adverse effect on the business, assets, properties, condition (financial or otherwise), results of operations or prospects of Sellers taken as a whole (a “Material Adverse Effect”). There has been no event, occurrence, development or circumstance which would reasonably be expected to have a Material Adverse Effect.

3.7    Conduct of the Business. Since the date of the Interim Financial Statements through the Closing Date, no Selling Party has engaged in any practice, taken any action or entered into any transaction with respect to any of the Purchased Assets outside the ordinary course of business. Without limiting the foregoing, no Selling Party has engaged in any practice, taken any action or entered into any transaction with respect to the Business which could, to Sellers’ knowledge, have a Material Adverse Effect or entered into any agreement to do any of the foregoing.

3.8    Business Relationships. Within the past twelve (12) months: (i) no Affiliate (as defined below) of Sellers, the Owner, nor any Affiliate of the Owner (collectively, the “Interested Parties”) has been involved in any material business arrangement or relationship with Sellers; and (ii) no managers, officers or employees (or their respective family members) of Sellers have been involved in any material business arrangement or relationship with Sellers other than employment as properly reflected in the Financial Statements. No Interested Party, nor any managers, officers or employees of Sellers (nor their respective family members), own any asset that is used in the Business. For purposes of this Agreement, “Affiliate” means, with respect to a Person, any other Person that directly or indirectly, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this Agreement, “Person” means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated association, corporation, other entity or governmental authority.

3.9    Title; Condition of Assets. Sellers are the owner of and have good and marketable title to the Purchased Assets (which constitute all of the properties and assets necessary or appropriate for the continued conduct of the Business in substantially the same manner as conducted immediately prior to the Closing), free of all restrictions on transfer or assignment and all Liens. The Purchased Assets comprising tangible personal property are in the same condition as when they were examined by the Purchaser on July 20, 2023 and repair, ordinary wear and tear excepted. Following normal and customary pre-season repairs and maintenance the Purchased Assets are usable in the ordinary course of the Business.

3.10    Personal Property Leases. True and complete copies of all Sellers’ leases relating to leased personal property (the “Leased Personal Property”) have been delivered to Purchaser, and such leases are not in default and are valid, binding and enforceable against the respective parties thereto.

3.11    Litigation. There are no legal actions, suits, or proceedings pending or, to the knowledge of Sellers, threatened against Sellers or against the Business, and no Selling Party is aware of any facts that are likely to result in or form the basis for any such action, suit or other proceeding.

3.12    Contracts. Sellers and, to the knowledge of Sellers, each other party to the Contracts, have performed all obligations required to be performed under the Contracts and are not in default under any Contract that would be reasonably expected to have a Material Adverse Effect. The Contracts are each in full force and effect, and Sellers have not waived or assigned to any other individual or entity any of its rights thereunder. The Parties acknowledge that the Contracts are not assignable to Purchaser without the consent of third parties. The Parties do not expect there to be any adverse impact to the process of gaining consent following the Closing Date.

3.13    Customers and Suppliers.

(a)    Schedule 3.13(a) sets forth with respect to the Business (i) each customer who has paid aggregate consideration to Sellers for goods or services rendered in an amount greater than or equal to $50,000 for each of the two (2) most recent fiscal years (collectively, the “Material Customers”); and (ii) the amount of consideration paid by each Material Customer during such periods. Sellers have not received any notice, and have no reason to believe, that any Material Customer intends to terminate or materially reduce its relationship with the Business after the Closing.

(b)    Schedule 3.13(b) sets forth with respect to the Business (i) each supplier to whom Sellers have paid consideration for goods or services rendered in an amount greater than or equal to $20,000 for each of the two (2) most recent fiscal years (collectively, the “Material Suppliers”); and (ii) the amount of purchases from each Material Supplier during such periods. Sellers have not received any notice, and have no reason to believe, that any of the Material Suppliers intends to terminate or materially reduce its relationship with the Business. The prices that Sellers pay to their suppliers to purchase services is not based on, in whole or in part, the promise to continue to do business with such supplier in the future.

3.14    Taxes. All taxes, federal, state and local, (“Tax” and with corresponding meaning “Taxes”) for all periods prior to the Closing Date have been paid, and Sellers have timely filed (or have had timely filed on its behalf) all returns, declarations, reports, estimates, information returns and statements (“Tax Returns”) required under applicable laws, and all such Tax Returns are true, correct and complete in all material respects. Sellers represent and warrant that the preceding representation will be true as of the Closing, as if made at that time. Neither the Business nor the Purchased Assets are subject to any Lien resulting from unpaid Taxes, and to the knowledge of Sellers, no taxing authority has any present right to file any such Lien against the Business or the Purchased Assets. All material elections with respect to Taxes affecting Sellers or the Purchased Assets have been disclosed to Purchaser.

3.15    Compliance with Laws; Permits. To Sellers’ knowledge, the Selling Parties have materially complied with all applicable federal, state, and local statutes, laws, and regulations affecting Sellers’ properties or the operation of the Business. The Selling Parties are not required to acquire any consents or approvals by any governmental authority to execute, deliver, and perform their obligations under any of the Transaction Documents. Sellers have all necessary licenses, permits and certifications required to operate the Business and own the Purchased Assets, and all such licenses, permits and certifications are in full force and effect.

3.16    Environmental Matters. Sellers are, and at all times has been, in full compliance with, and have not been in violation of or liable under, any applicable local, state and/or federal environmental law, order, or regulation, and Sellers have no basis to expect, nor have Sellers received, any actual or threatened order, notice or other communication from any governmental body (or private citizen acting in the public interest) of any actual or potential violations or failure to comply with any such environmental law.

3.17    Insurance. To Sellers’ knowledge, all insurance policies maintained by Sellers with respect to the Purchased Assets (collectively, “Sellers’ Insurance Policies”) are in full force and effect, and there has been no failure to pay premiums on such policies when due. Sellers’ Insurance Policies are of the type and in the amounts customarily carried by Persons conducting a business similar to the Business and are sufficient for compliance with all applicable laws and the Contracts. Neither Sellers nor any of their Affiliates are in default under, or has otherwise failed to comply with, in any material respect, any provision contained in any Sellers’ Insurance Policy.

3.18    Employment Matters. Sellers have complied in all material respects with all laws relating to employment, equal employment opportunity, nondiscrimination, immigration, wages, hours, benefits, collective bargaining, the payment of social security and similar taxes, occupational safety and health, and plant closing. To the knowledge of Sellers, no key employee or group of employees has any intention to terminate employment with Sellers. Sellers are not a party to or bound by any collective bargaining agreement. Sellers have not committed any unfair labor practice. Sellers have no knowledge of any organizational effort presently being made or threatened by or on behalf of any labor union with respect to employees of either Seller. Sellers have not suffered a labor shortage that adversely impacts Sellers or the Business. Sellers have not received any complaints or claims for failing to provide a safe working environment or accommodation to its employees in relation to COVID-19, and Sellers have complied with all public health protocols and guidelines regarding the COVID-19 pandemic. Sellers do not have nor have they ever had any employee benefit plan, as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended.

3.19    Brokers. No third party shall be entitled to receive any brokerage commissions, finder’s fees, fees for financial advisory services or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of the Selling Parties.

3.20    Intellectual Property.

(a)    Definitions. “Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including but not limited to copyrights, copyright licenses, patents, patent licenses, trademarks, logos, brands, trademark licenses, internet domain names and social media account or user names, websites, technology, know-how and processes, all other intellectual property and proprietary rights, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom. “Intellectual Property Assets” means all Intellectual Property that is owned by Sellers and used or held for use in the conduct of the Business, including, without limitation, any rights in or to the “Rapid Hot Flow” and “Rapid Pressure Services” trade names and any related trademark(s) (whether nor not registered), including, without limitation, all logos and slogans used in connection with the Business.

(b)    Scheduled Intellectual Property. Schedule 3.20(b) contains a correct, current, and complete list of all Intellectual Property of the Business as currently conducted, specifying as to each, as applicable: the title, mark, or design; the jurisdiction by or in which it has been issued, registered, or filed; the patent, registration, or application serial number; the issue, registration, or filing date; and the current status of any efforts of Sellers to obtain additional Intellectual Property rights in any Intellectual Property Assets.

(c)    The Sellers own and have good, valid, and exclusive title to, or has exclusive and assignable licenses to use, each item of Intellectual Property listed in Schedule 3.20(b) free and clear of all Liens and adverse claims of title, and such Intellectual Property is valid and enforceable, and the rights of the Sellers therein will not be terminated, canceled or modified as a result of the Transaction. The conduct of the Business as currently conducted does not infringe or otherwise violate the Intellectual Property rights of any third party. Immediately following the Closing, all Intellectual Property Assets, and (to the extent assignable, and validly assigned hereunder) licensed Intellectual Property, will be owned or available for use by Purchaser on substantially the same terms as they were owned or available for use by Sellers immediately prior to the Closing.

3.21    Disclosure. The Selling Parties have presented to Purchaser true, complete, and correct information and documents regarding the Business, Purchased Assets and Transaction, and none of the information or documents so provided contains an untrue statement of material fact or omits to state a material fact.

3.22    Investment Representations. The Owner is acquiring the Transaction Shares for its own account with the present intention of holding such securities for investment purposes and not with a view to, or for sale in connection with, any distribution of such securities in violation of any federal or state securities Laws. The Owner is an “accredited investor” as defined in Regulation D promulgated by the Securities and Exchange Commission under the Securities Act, and acknowledges that it is informed as to the risks of the transactions contemplated hereby and of ownership of the Transaction Shares.

4.1    Due Incorporation; Authorization of Agreements; No Conflict. Purchaser is duly qualified and organized, and is validly existing and in good standing, under the laws of its state of formation. The execution and delivery of the Transaction Documents by the Purchaser has been duly authorized by all requisite action, constitutes the legal, valid and binding obligations of the Purchaser, and will not violate any laws or conflict with or result in a violation of or default under any material agreements to which Purchaser is a party.

4.2    Brokers. No third party shall be entitled to receive any brokerage commissions, finder’s fees, fees for financial advisory services or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of Purchaser.

4.3    Transaction Shares. The Transaction Shares, upon issuance, will be duly authorized, fully paid, validly issued and non-assessable.

4.4    SEC Reports; Financial Statements. Purchaser has filed all required registration statements, reports, schedules, forms, statements and other documents required to be filed by it with the SEC (collectively, as they have been amended since the time of their filing and including all exhibits thereto, the “SEC Reports”). The audited financial statements and unaudited interim financial statements (including, in each case, the notes and schedules thereto) included in the SEC Reports complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto, were prepared in accordance with Generally Accepted Accounting Principles applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto and except with respect to unaudited statements as permitted by Form 10-Q of the SEC) and fairly present (subject, in the case of the unaudited interim financial statements included therein, to normal year-end adjustments and the absence of complete footnotes) in all material respects the financial position of Buyer as of the respective dates thereof and the results of their operations and cash flows for the respective periods then ended.

5.1    No Requirement to Hire Employees; Pre-Closing Matters. Except as otherwise specifically provided in this Section 5.1, Purchaser shall not be required to assume the obligation to provide any compensation, fringe benefit, severance, retirement or other benefit heretofore provided by Sellers. Notwithstanding the foregoing, Purchaser agrees to initially hire, on the Closing Date, all employees of Sellers, on an “at-will” basis and, except as provided in the Employment Agreement, provide said employees with the same rate of pay they received from Sellers immediately prior to their termination as set forth below and materially equivalent benefits, which compensation shall be subject to periodic review and adjustment in Purchaser’s sole discretion. Sellers will terminate the employment of Sellers’ employees, effective as of 11:59 p.m. prevailing Central Time on the date immediately preceding the Closing Date. Purchaser shall not assume any of Sellers’ employment obligations, wage or salary payment obligations, including, without limitation, those arising under any pension, profit sharing, deferred compensation, severance, welfare, sick leave, accrued or earned vacation, wage or other employee benefit plan, procedure, policy or practice of Sellers (“Sellers’ Employment Obligations”) regardless of whether such plan, procedure, policy or practice is disclosed pursuant to this Agreement. Sellers shall pay or otherwise satisfy, at or prior to the Closing Date, all accrued and unpaid (or unsatisfied) Sellers’ Employment Obligations as of such time, regardless of whether the Sellers’ Employment Obligations are disclosed by Sellers or otherwise mentioned in this Agreement. Sellers will further comply with all state, federal or local employee notification laws or rules, including, without limitation, the federal Worker Adjustment and Retraining Notification Act, as the same may be applicable.

5.2    Name Change. Simultaneously with the Closing, the Selling Parties shall cease using the names “Rapid Hot Flow” and “Rapid Pressure Services” or any similar name and, within fifteen (15) business days after the Closing, shall file with the Colorado Secretary of State and Delaware Secretary of State respectively, and in any other applicable state, documentation to amend Sellers’ name to a name that is not similar to or confusing with “Rapid Hot Flow” and “Rapid Pressure Services” or any other name or mark used by Purchaser.

5.3    Confidentiality of Transaction. Any documentation, surveys, appraisals, reports or any other information regarding this Agreement that are disclosed by a party hereto, either orally, in writing or otherwise, the results of all inspections, analyses, studies and similar reports relating to the Purchased Assets and the details of the Transaction shall be considered to be confidential information and will not be disclosed to third parties except as may be necessary for the Parties to analyze and document the transaction and to consummate the Closing, operate, finance or sell the Business or as required by applicable law; provided, however, the following materials or information shall not be considered confidential information for purposes of this Section 5.3: (i) materials or information that were publicly known and made generally available in the public domain prior to the time of disclosure; (ii) materials or information that become publicly known and made generally available after disclosure through no action or inaction of the Parties; or (iii) is in the possession of the receiving party, without confidentiality restrictions, at the time of disclosure. Except as required by law, no party hereto shall make any press release or public statement concerning the matters addressed in or contemplated by this Agreement without the prior written approval of the other party, which will not be unreasonably withheld or delayed. All such confidential information of Sellers shall become part of the Purchased Assets on the Closing Date. The obligations contained in this Section 5.3 shall survive the expiration or termination of this Agreement in the event that the Closing does not occur for any reason.

5.4    Registration of Transaction Shares. Enservco shall file a Registration Statement of Form S-1 with the U.S. Securities and Exchange Commission covering the resale of the Transaction Shares within sixty (60) days from Closing and shall use its best efforts to have such registration statement be declared effective within ninety (90) days of closing.

6.1    Selling Parties Indemnification Obligations. The Selling Parties shall, on a joint and several basis, indemnify, defend (at Purchaser’s option) and hold harmless Purchaser and its directors, officers, employees, agents, attorneys, consultants, representatives, Affiliates, successors, transferees and assigns (collectively, the “Purchaser Indemnitees”) promptly upon demand, from, against and in respect of any and all demands, claims, losses, damages, judgments, liabilities, assessments, suits, actions, proceedings, interest, penalties and expenses (collectively, “Losses”) for both third-party claims and direct claims between the Parties, incurred or suffered, directly or indirectly, in connection with, arising out of or as a result of any of the following: (i) any breach (whether material or not), inaccuracy, untruth or incompleteness of a covenant, obligation, agreement, representation or warranty made by any Selling Party in any Transaction Document or any other agreement or document contemplated by this Agreement; (ii) any Excluded Liability, including but not limited to liabilities and obligations arising from ownership of the Purchased Assets or the operation of the Business on or prior to the Closing Date; (iii) any liability for, or claim from, Seller’s past or current (as of the Closing Date) employees relating to periods prior to the Closing Date; (iv) any and all liabilities and obligations of the Selling Parties, other than the Assumed Liabilities, arising from the ownership of the Purchased Assets, the operation of the Business, and any incidents and occurrences related thereto, on or prior to the Closing Date; and (v) the failure to qualify to do business in any state (the “Special Indemnity”). 

6.2    Purchaser Indemnification Obligations. Purchaser shall indemnify, defend and hold harmless the Selling Parties and their directors, officers, employees, agents, attorneys, consultants, representatives, Affiliates, successors, transferees and assigns (collectively, the “Selling Party Indemnitees”) from, against and in respect of any and all Losses, for both third-party claims and direct claims between the Parties, incurred or suffered, directly or indirectly, in connection with, arising out of or as a result of any of the following: (i) any inaccuracy, misrepresentation or untruth in or any breach of or default in a covenant, obligation, agreement, representation or warranty made by Purchaser in this Agreement or any other Transaction Document; (ii) any of the Assumed Liabilities, including but not limited to liabilities and obligations arising from ownership of the Purchased Assets or the operation of the Business after the Closing Date; and (iii) the ownership or operation of the Business or the Purchased Assets related to the period of time after the Closing Date.

6.3    Procedure for Indemnification.

(a)    Each party will give the other party prompt written notice of any third-party claim to which these indemnification provisions apply; provided, however, that the failure to provide such notice will not release the Selling Parties from any of their obligations under this Article 6, except to the extent that such failure has actually prejudiced the Selling Parties’ rights in such third-party claim.

(b)    If a party is the subject of a third-party claim for which it will seek indemnification from the other party under this Article 6, it may either defend such claim or tender the defense to the indemnifying parties. If a party tenders the defense of any third-party claim to the other party, then (i) the indemnified party shall have the right to consent to the selection of legal counsel in its sole discretion and (ii) the indemnifying party will not enter into any settlement, defense discharge, admission of liability or compromise of any claim or litigation without obtaining approval, which the indemnified party can provide or withhold in its sole discretion. If the indemnified party elects to defend such third-party claim, then (1) the indemnified party shall have the full right to independently control the defense and settlement of such matter, which actions shall not negatively impact the indemnified party’s right to indemnification and to be held harmless under this Article 6 by the indemnifying party, and (2) the indemnifying party shall, at the request of the indemnified party, if any, cooperate and assist the indemnified party in the defense of such third-party claim.

(c)    Upon request of the indemnified party in a matter where the indemnifying party is defending such claim, the indemnifying party will allow the indemnified party, at the indemnified party’s own cost and expense (including, without limitation, legal fees), to participate in such defense; provided, however, the indemnified party reserves the right to seek reimbursement and payment of defense costs and attorneys’ fees if the indemnified party’s defense or position in such claim is different from or in conflict with the indemnifying party’s defense or position, as determined by the indemnified party, in its sole discretion.

(d)    Purchaser or the Selling Parties pursuant to this Article 6 shall be effected by wire transfer of immediately available funds from Purchaser or the Selling Parties, as the case may be, to an account designated by Purchaser or the Selling Parties, as the case may be, within five (5) business days after the determination thereof by mutual agreement of the parties or by the entry of a final unappealable order of a court or another dispute resolution authority having proper jurisdiction, provided that Purchaser may, in its sole discretion, and notwithstanding anything herein to the contrary, offset any Losses subject to indemnification by the Selling Parties hereunder against the Escrow Amount.

6.4    Tax Treatment of Indemnification Payments. All indemnification payments made under this Agreement shall be treated by the Parties as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by law.

6.5    Non-Exclusive Remedy; Limits on Indemnification. The indemnification obligations of the parties in this Article 6 shall apply both to direct claims of a party against the other party and claims of a party related to claims by third parties. In the event the Selling Parties are required to satisfy any indemnification obligations under this Article 6, Owner may provide notice to Purchaser of Owner’s election to satisfy such indemnification obligations by the redemption by Purchaser of such Transaction Shares, as a dollar for dollar credit against such indemnification obligations, at the then-current fair market value of the Transaction Shares as reasonably determined by the Board of Directors of Purchaser. The above indemnification provisions are in addition to, and not in derogation of, any statutory, equitable or common law remedy any party may have with respect to any other party, or the transactions contemplated by this Agreement. The aggregate amount of all Losses for which the Selling Parties, on the one hand, and Purchaser, on the other, shall be liable pursuant to this Article 6 shall not exceed the Purchase Price. The Selling Parties, on the one hand, and Purchaser, on the other, shall not be liable for indemnification under this Article 6 until the aggregate amount of all Losses to be indemnified by such Party hereunder exceeds Thirty Five Thousand Dollars ($35,000) (the “Basket Amount”), in which event the applicable indemnifying party shall pay or be liable for only those Losses in excess of such amount. Notwithstanding anything to the contrary set forth herein, the limitations set forth in this Section 6.5 shall not limit the rights of the Purchaser Indemnitees to indemnification with respect to (i) claims arising from or based on fraud, criminal misconduct or intentional or willful misrepresentation or intentional or willful breach of any Transaction Document, (ii) claims arising from Selling Parties’ breach of any covenants, (iii) claims for breach of Fundamental Representations (as defined in Section 7.3), and (iv) the Special Indemnity. Notwithstanding anything to the contrary contained in this Agreement, nothing in this Article 6 shall operate to bar or limit (and for the avoidance of doubt, no cap, basket or deductible shall limit) any claim or the Losses arising from or based on fraud, criminal misconduct, or intentional misconduct.

6.6    Effect of Investigation. The Purchaser Indemnitees’ right to indemnification for any representations, warranties, or covenants within this Agreement shall not be affected by any inspection, investigation or knowledge acquired by any Purchaser Indemnitee (or that could have been acquired by any Purchaser Indemnitee).

7.1    Further Acts and Assurances; Transition Matters. Each Selling Party and Purchaser shall take any and all steps reasonably necessary to effectuate the intended purposes of this Agreement, including, without limitation, with respect to the transfer of title to any motor vehicles included in the Purchased Assets.

7.2    Guaranty of Obligations. Owner guarantees all obligations of Sellers under the terms of this Agreement, including, without limitation, Sellers’ obligations under Article 6, without requiring Purchaser to first seek recourse from Sellers.

7.3    Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein shall survive the Closing and shall remain in full force and effect until the date that is (i) six (6) years from the Closing Date for the representations in Sections 3.1, 3.2, 3.9, 3.13(a), 3.14, and 3.16 (the “Fundamental Representations”), and (ii) (2) years from the Closing Date for all other representations and warranties herein (the “Non-Fundamental Representations”). All covenants and agreements of the Parties contained herein shall survive the Closing indefinitely or for the period explicitly specified herein. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved.

7.4    Notices. All notices given under this Agreement must be in writing. A notice is effective upon receipt and shall be sent via one of the following methods: delivery in person, overnight courier service, certified or registered mail, postage prepaid, return receipt requested, sent to the following addresses (or as designated by either party upon notice to the other party in accordance with this Section 7):

If to Purchaser, to:

Enservco Corporation

Attention: Richard Murphy

Email: rmurphy@enservco.com

with a copy to (which shall not constitute notice hereunder):

Maslon LLP

3300 Wells Fargo Center

90 South 7th Street

Minneapolis, MN 55402

Attention: Doug Holod

Email: doug.holod@maslon.com

If to any Selling Party:

Looper Goodwine, P.C.

1300 Post Oak Blvd., Suite 1250

Houston, Texas 77056

Attention: Donald R. Looper

Email: dlooper@loopergoodwine.com

7.5    Construction; Choice of Law. This Agreement has been negotiated by the parties and their respective legal counsel, and the language hereof shall not be construed for or against any Party. When a reference is made in this Agreement to Exhibits, such reference shall be to an Exhibit to this Agreement unless otherwise indicated. When a reference is made in this Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated. The words “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation,” unless clearly indicated otherwise in such context. The headings contained in this Agreement are only for reference purposes and shall not affect in any way the meaning or interpretation of this Agreement. Reference to the subsidiaries of an entity shall be deemed to include all direct and indirect subsidiaries of such entity. Reference herein to a law, statute, regulation, document or agreement is deemed in each case to include all amendments thereto. This Agreement shall be construed in accordance with and governed by the laws of the State of Colorado without regard to conflicts of law principles.

7.6    Mediation; Arbitration.

(a)    Prior to invoking the provisions of Section 7.6(b), any dispute arising out of or relating to this Agreement shall be resolved in the following manner: (i) any party may at any time deliver to the others a written dispute notice setting forth a brief description of the relevant issue(s) (the “Disputed Issue(s)”); (ii) during the thirty (30) day period following the delivery of the notice (the “Negotiation Period”) appropriate representatives of the various parties will meet and seek to resolve the Disputed Issue(s) through negotiation, (iii) if such representatives are unable to resolve the Disputed Issue(s) through negotiation, then within ten (10) days after the Negotiation Period (the “Referral Period”), the parties will refer the Disputed Issue(s) to mediation. Should the parties fail to agree on a mediator within fifteen (15) days following the Referral Period, the District Court of Denver County, Colorado shall select the mediator to be used. The parties shall attend a mediation and attempt in good faith to mediate such dispute within thirty (30) days following the selection of a mediator. Notwithstanding the foregoing, the request by either party for preliminary or permanent injunctive relief shall not be subject to mediation and may be adjudicated by any jurisdiction where jurisdiction and venue are proper.

(b)    In the event not resolved pursuant to the provisions of Section 7.6(a), each of the Parties agrees that any claim, dispute or conflict arising from or connected with this Agreement shall be solely resolved by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association; provided, however, that Purchaser may seek injunctive relief to protect or enforce its rights under this Agreement or any Transaction Document without first resorting to such arbitration. Any such arbitration shall be held in Denver, Colorado. Any arbitration award will be final and non-appealable, and judgment thereon may be entered in any court of competent jurisdiction. The arbitrator shall have the authority to grant any equitable and legal remedies, except punitive damages, that would be available in any judicial proceeding. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING HEREUNDER.

7.7    Succession and Assignment. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their successors and assigns. Neither Party may assign its rights or delegate its duties under this Agreement without the other Party’s prior written consent.

7.8    No Third-Party Beneficiaries. Except for those third parties entitled to indemnification pursuant to Article 6, this Agreement does not confer any rights or remedies upon any Person (including, without limitation, employees of Sellers) other than the Parties and their respective successors and permitted assigns.

7.9    Severability. Any provision hereof that is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.

7.10    Entire Agreement. This Agreement, together with the Schedules and Exhibits attached hereto, as well as the Transaction Documents, constitutes the complete agreement between the Parties, and supersedes any prior or contemporaneous oral or written agreements between the Parties respecting the sale and purchase described in this Agreement except for any confidentiality agreement entered into between the any of the Parties prior to the date of this Agreement, which shall survive until the Closing.

7.11    Amendment; Waiver; Counterparts. This Agreement may be amended or modified only by a written agreement signed by each of the Parties. No party shall be deemed to have waived any provision of this Agreement or the exercise of any rights held under this Agreement unless such waiver is made expressly and in writing. This Agreement may be executed electronically (by DocuSign, an exchange of signed PDFs, or otherwise) and in one or more counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument.

[The remainder of this page is intentionally left blank.]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered, all on and as of the date first written above.

THE SELLING PARTIES:

Rapid Hot Flow, LLC

By: /s/    Steve Weyel          

Name:    Steve Weyel

Title:      Managing Member

Rapid Pressure Services, LLC

By: /s/    Steve Weyel          

Name:    Steve Weyel

Title:      Managing Member

OilServ, LLC ("Owner")

By: /s/    Steve Weyel          

Name:    Steve Weyel

Title:      Managing Member

PURCHASERS:

HEAT WAVES HOT OIL SERVICE LLC

By: /s/     Richard Murphy                                          

Name:     Richard Murphy

Title:       Chief Executive Officer

ENSERVCO CORPORATION

By: /s/     Richard Murphy                                    

Name:     Richard Murphy

Title:       Chief Executive Officer

Exhibit 10.2

NOTE PURCHASE AGREEMENT

This NOTE PURCHASE AGREEMENT (this “Agreement” or “Note Purchase Agreement”) is made effective as of September 11, 2023 (the “Effective Date”), by and among ENSERVCO CORPORATION, a Delaware corporation (the “Company”), Cross River Partners, LP, a Delaware limited liability company (“Cross River”), Equigen II, LLC, a Texas limited liability company, and Angel Capital Partners, LP, a Texas limited partnership (collectively, the “OilServ Investors”) and investors indicated on Schedule A attached hereto (individually, the “Investor” and collectively, the “Investors”).

WHEREAS, the Company desires to raise capital to fund its ongoing operations and obligations by offering and issuing promissory notes convertible into a certain proposed series of equity securities to an aggregate amount of a minimum principal amount of $1,062,500 (the “Minimum Amount”) and a maximum principal amount of $3,000,000 (the “Maximum Amount”), subject to the conditions specified herein (the “Offering”);and

WHEREAS, the Company issued on September 1, 2023 promissory notes aggregating $800,000 which, on their terms, are convertible into the securities offered in the Offering;

For and in consideration of the foregoing and the mutual promises and covenants herein contained, the Company and the Investor agree as follows:

1.    Purchase of Note. Subject to the terms and conditions of this Agreement, the Investor agrees to purchase, and the Company agrees to sell and issue to the Investor, an unsecured convertible promissory note, in substantially the form attached hereto as Exhibit A (the “Note”), in exchange for the amount indicated on Schedule A (the “Purchase Price”). All capitalized terms used but not otherwise defined herein shall have the meaning set forth in the Note. The terms of the Note are incorporated herein by reference.

2.    Closing; Closing Mechanics.

2.1.    Closing. The closing of the sale and issuance of the Note (the “Closing”) to the Investor shall take place on the Effective Date, or at such other time as the Company and the Investor may mutually agree (such date is hereinafter referred to as the “Closing Date”).

2.2.    Subsequent Sales of Notes. Up to forty five (45) days after the Closing, Cross River agrees to purchase an additional $250,000 principal amount of Notes provided that the OilServ Investors contemporaneously invest an additional $312,500 principal amount of Notes (such event to be the “Second Closing”). Additionally, the Company may issue Notes, as defined at the end of this Section 2.2, representing up to the balance of the Maximum Amount not sold at the Closing and the Second Closing to additional investors (the “Additional Investors”). All such sales made at any additional closings (each an “Additional Closing”) shall be made on the terms and conditions set forth in this Agreement and (a) the representations and warranties of the Company set forth in Section 3 hereof shall speak as of the Closing, and the Company shall have no obligation to update any disclosure related thereto, and (b) the representations and warranties of the Additional Investors in Section 4 hereof shall speak as of such Additional Closing. This Agreement may be amended by the Company without the consent of the Investors to include any Additional Investors upon the execution by such Additional Investors of a counterpart signature page hereto. Any Notes sold pursuant to this Section 2.2 shall be deemed to be “Notes,” for all purposes under this Agreement and any Additional Investors thereof shall be deemed to be “Investors” for all purposes under this Agreement.

2.3.    Closing Deliverables. At the Closing and each Additional Closing, (a) each Investor shall deliver to the Company the Purchase Price set forth in this Agreement (the “Consideration Amount”) via wire transfer of immediately available funds to an account designated by the Company, (b) the Company shall issue and deliver to each Investor an executed Note in favor of such Investor in the principal amount equal to the Consideration Amount, (c) each Investor shall deliver a countersigned Note, accepting and acknowledging the delivery of the Note, and (d) the Company shall record each Investor as the owner of the applicable Note in the Company’s books and records.

3.    Representations and Warranties of Company. The Company represents and warrants to the Investor that the following representations and warranties are true and complete as of the Effective Date.

3.1.    Organization and Qualification. The Company and each of the subsidiaries of the Company as set forth in the Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2022 and any direct or indirect subsidiary of the Company formed or acquired after the date hereof (the “Subsidiary” or “Subsidiaries”) is an entity duly incorporated or otherwise organized, validly existing, and, if applicable under the laws of the jurisdiction in which they are formed, in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in violation or default of any of the provisions of its respective memorandum of association, articles of association, certificate or articles of incorporation, bylaws, operating agreement, or other organizational or charter documents that would constitute a Material Adverse Effect (defined below). Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of this Agreement and any other documents or agreements executed in connection with the transactions contemplated hereunder, including but not limited to the form of convertible promissory note (the “Transaction Documents”), (ii) material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.

3.2.    Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company.. This Agreement and each other Transaction Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

3.3.    Duly Issued; Nonassessable. The Conversion Shares issuable upon any conversion of the Note, if any such conversion event occurs pursuant to the terms set forth in the Note, will be duly authorized and validly issued, fully paid and nonassessable stock of the Company and free of any lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction (collectively, “Liens”) and issued in compliance with all applicable federal and securities laws.

3.4.    Subsidiaries. The Company owns, directly or indirectly, all of the capital shares or other equity interests of each Subsidiary, free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.

3.5.    Litigation. There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”), except as disclosed in the SEC Reports, as defined in Section 3.6 of this Agreement. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty, which could result in a Material Adverse Effect. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the United States Securities and Exchange Commission (the “Commission”) involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Securities Exchange Act of 1934 (the “Exchange Act”) or the Securities Act of 1933 (the “Securities Act”).

3.6.    Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such materials) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”). As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.

3.7.    Capitalization. The capitalization of the Company as of the date hereof is as set forth in the SEC Reports, and includes the number of shares of Common Stock owned beneficially, and of record, by Subsidiaries of the Company or entities of any kind in which the Company has an ownership interest of any kind (the “Affiliates”) as of the date hereof. The Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock (“Common Stock Equivalents”) outstanding as of the date of the most recently filed periodic report under the Exchange Act except for any equity that may be issued by the Company contemporaneously with the question of certain assets of OilServ, LLC and its affiliates. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. As a result of the purchase and sale of the Securities as defined in Section 3.8, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Securities will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Company or any Subsidiary. There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any share appreciation rights or “phantom share” plans or agreements or any similar plan or agreement. All of the outstanding shares of the Company are duly authorized, validly issued, fully paid and non-assessable, have been issued in compliance with all federal and state securities laws where applicable, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors, or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s share capital to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.

3.8.    Offering. Assuming the accuracy of the representations and warranties of the Investor contained in Section 4 hereof, the offer, issue, and sale of the Note and the Conversion Shares (collectively, the “Securities”) are and will be exempt from the registration and prospectus delivery requirements of the Securities Act, and have been registered or qualified (or are exempt from registration and qualification) under the registration, permit, or qualification requirements of all applicable state securities laws.

3.9.    Use of Proceeds. The Company will use the proceeds of sale and issuance of the Note for the operations of its business, and not for any personal, family or household purpose. The Company shall use the proceeds of this Note and all other similar Notes issued in connection with the Offering solely as working capital and shall not be used to repay existing debt, subordinated or senior, of the Company.

3.10.    Brokers and Finders. No person or entity acting on behalf or under the authority of the Company or any of its Affiliates is or will be entitled to any broker’s, finder’s, or similar fee or commission in connection with the transactions contemplated by this Agreement.

3.11.    Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that it has not provided any of the Investors or their agents or counsel with any information that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the SEC Reports. The Company understands and confirms that the Investors will rely on the foregoing representation in effecting the transactions contemplated by this Agreement.

4.    Representations and Warranties of the Investor. The Investor represents and warrants to the Company that the following representations and warranties are true and complete.

4.1.    Organization. To the extent such Investor is not a natural person, such Investor is duly organized or incorporated (as applicable), validly existing and in good standing under the laws of the state or country in which it is organized or incorporated (as applicable) and is authorized and qualified to become a holder of the Note, the person signing this Agreement on behalf of such entity has been duly authorized to execute and deliver this Agreement, and the acquisition of the Note by the Investor and the consummation by such Investor of the transactions contemplated hereby have been duly authorized by all necessary action to be taken on the part of such Investor.

4.2.    Authorization. To the extent the Investor is not a natural person, the execution, delivery and performance of this Agreement and the Note by the Investor and the consummation by the Investor of the transactions contemplated hereby are within the powers of the Investor and have been duly authorized by all necessary individual, corporate, partnership or limited liability company action, as appropriate, on the part of the Investor. This Agreement and the Note constitute valid and binding agreements of the Investor, and, assuming the due execution and delivery of this Agreement and the Note by each other person or entity party thereto, enforceable against the Investor in accordance with its respective terms, subject to: (i) applicable bankruptcy, insolvency, reorganization and moratorium laws, (ii) other laws of general application affecting the enforcement of creditors’ rights generally and general principles of equity, (iii) the discretion of the court before which any proceeding therefor may be brought, and (iv) by federal or state securities laws or by public policy of rights to indemnification. All action required for the lawful execution and delivery of this Agreement and the Note has been taken.

4.3.    Acquisition of the Note for Investment. The Investor is acquiring the Note for its own account for investment purposes only and not with a view to or for the purpose of distributing or reselling the Note or any part thereof or interest therein, without prejudice, however, to the Investor’s right, subject to the provisions of this Agreement and the Note and in accordance with all applicable laws, at all times to sell or otherwise dispose of all or any part of such Note as otherwise permitted hereunder. The Investor is not acting jointly or in concert with any other person or entity for the purposes of acquiring the Note. The Investor has no contract, undertaking, agreement or arrangement with any person or entity to sell or otherwise transfer the Note to any such person or entity or to have any such person or entity sell the Note on the Investor’s behalf.

4.4.    Ability of the Investor to Bear Risk of Investment. The Investor acknowledges that the purchase of the Note is a highly speculative investment involving a high degree of risk, and the Investor is able to bear the economic risk of an investment in the Note and is able to afford a complete loss of such investment (i.e., the Purchase Price). The Investor has such financial and business knowledge and experience that he, she or it is capable of evaluating the risks and merits of this investment, and the Investor has had an opportunity to ask any questions and obtain any additional information concerning the Company.

4.5.    Ability of Majority Holders to Modify Note Terms. The Investor acknowledges that holders of Notes representing 75% of the aggregate principal amount of Notes have the ability to extend the maturity date of the Notes or to amend or waive terms of the Notes which could diminish or eliminate all rights of the Investor under this Note.

4.6.    Accredited Investor. The Investor is an “accredited investor” as that term is defined in Rule 501 of Regulation D promulgated under the Securities Act.

4.7.    No Agency Review. The Investor acknowledges and understands that no U.S. federal or state agency, including the U.S. Securities and Exchange Commission (the “SEC”) or the securities commission or authority of any state, has approved or disapproved the Note, passed upon or endorsed the merits of the offering of the Note, or made any finding or determination as to the fairness or fitness of the Note for public sale.

4.8.    Professional Advice. The Investor has relied upon the advice of the Investor’s legal counsel and/or accountants and/or other financial advisors with respect to tax and other considerations relating to the purchase of the Note. The Investor is not relying upon the Company with respect to the economic considerations involved to make an investment decision in the Note. Nothing in this Section 4, including the foregoing sentence, limits or modifies the representations and warranties of the Company in Section 3, or the right of the Investor to rely thereon.

4.9.    No Intent to Transfer. With the exception of a conversion of the Note in accordance with its express terms, the Investor is not aware of any occurrence, event or circumstance upon the happening of which the Investor intends to transfer or sell the Note and the Investor does not have any present intention to transfer or sell the Note.

4.10.    Further Limitations on Disposition. Without in any way limiting the representations set forth above, the Investor further agrees not to make any disposition of all or any portion of the Note unless and until:

(a)    There is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or

(b)    The Investor shall have notified the Company of the proposed disposition and furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and if reasonably requested by the Company, the Investor shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such disposition will not require registration under the Securities Act or any applicable state securities laws; provided that no such opinion shall be required for dispositions in compliance with Rule 144 under the Act, except in unusual circumstances.

(c)    Notwithstanding the provisions of paragraphs (a) and (b) above, no such registration statement or opinion of counsel shall be necessary for a transfer by the Investor to a partner (or retired partner) or member (or retired member) of the Investor in accordance with partnership or limited liability company interests, or transfers by gift, will or intestate succession to any spouse or lineal descendants or ancestors, if all transferees agree in writing to be subject to the terms hereof to the same extent as if they were the Investor hereunder.

4.11.    Tax Consequences. The investment in the Note may have tax consequences under applicable taxation laws, that it is the sole responsibility of the Investor to determine and assess such tax consequences as may apply to the Investor’s particular circumstances, and the Investor has not received and is not relying on the Company for any tax advice whatsoever.

5.    Protective Covenants.

5.1.    Following the Closing , without the written approval of the holders of greater than 75% of the principal amount of the Notes, the Company shall not: (i) incur any debt which is senior or parri passu to the debt by the Note, other than an Equity Financing as defined in the Note; or (ii) issue any securities other than (a) shares to be issued in conjunction with the Asset Purchase Agreement by and between OilServ, LLC, Rapid Hot Flow, LLC, Rapid Pressure Services, LLC, and Heat Waves Hot Oil Service LLC dated September [X], 2023 (the “Asset Purchase Agreement”), (b) shares to be issued to Michael S. Lade as part of his employment with the Company and in conjunction with the Asset Purchase Agreement, and (c) shares issued pursuant to the Company’s existing Equity Incentive Plan and as approved by the Board of Directors.

6.    Indemnity.

6.1.    The Investor agrees to indemnify and hold harmless the Company, its Affiliates and its members, governors, managers, officers, employees and consultants from and against any and all loss, liability, claim, damage and expense whatsoever (including but not limited to any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation or any claim commenced or threatened) arising out of or based upon any false or misleading representation or warranty made by such Investor hereunder, misinformation, breach or failure by such Investor herein or hereunder or under any other document furnished or delivered by such Investor to any of the foregoing indemnified persons in connection with such Investor’s investment in the Company.

6.2.    The Company agrees to indemnify and hold harmless the Investor and, as applicable, their respective Affiliates and shareholders, directors and officers from and against any and all loss, liability, claim, damage and expense whatsoever (including but not limited to any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation or any claim commenced or threatened) arising out of or based upon any false or misleading representation or warranty made by the Company hereunder, misinformation, breach or failure by the Company herein or hereunder or under any other document furnished or delivered by the Company to any of the foregoing indemnified persons in connection with the applicable Investor’s investment in the Company.

7.    Miscellaneous.

7.1.    Board of Directors Appointment. Concurrent with the execution of the Asset Purchase Agreement, the Company agrees to appoint Steve Weyel to the Board of Directors, and Steve Weyel accepts such appointment.

7.2.    Joint Participation. Cross River shall participate at the same or greater level as the combined participation level of the OilServ Investors provided that Cross River’s aggregate purchase of Notes in the Offering shall not exceed $1,000,000.

7.3.    Kildeer Mortgage. The Company shall use its commercially reasonable best efforts in the immediate forty five (45)-day-period following the Closing of this Agreement to secure a $500,000 mortgage on the Company’s real property located in Kildeer, North Dakota.

7.4.    Concurrent Closing. The Company acknowledges that the Closing of this Agreement shall be contingent upon, and concurrent with, the execution of the Asset Purchase Agreement.

7.5.    Amendment; Waiver. No provision of this Agreement may be waived or amended except in a written instrument signed by the Company and the Investor. Except as otherwise provided in the Note, any provision of the Note may be amended or waived by the written consent of the Company and the Investor. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter.

7.6.    Survival of Representations and Warranties. All representations, warranties and agreements contained herein or made in writing by or on behalf of any party to this Agreement in connection herewith shall survive the execution and delivery of this Agreement.

7.7.    Successors and Assigns; No Third Party. All covenants and agreements in this Agreement contained by or on behalf of the parties hereto shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.

7.8.    Governing Law. This Agreement and the Note shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts of law principles.

7.9.    Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

7.10.    Headings. The headings used in this Agreement are for reference and convenience only and shall not affect the construction or interpretation of this Agreement.

7.11.    Notices. Unless otherwise provided, any notice, other communication or deliveries required or permitted under this Agreement shall be given in writing and by electronic mail and shall be deemed effectively given (i) upon personal delivery to the party to be notified, (ii) four (4) days after deposit with the United States Post Office, by registered or certified mail, postage prepaid, (iii) one (1) day after deposit with a reputable overnight courier service and addressed to the party to be notified, or (iv) upon confirmation of receipt of a successful electronic mail transmission; provided, however, that all the times in (ii) and (iii) shall be increased by three (3) days in the event that notice is being sent internationally. The addresses for such notices and communications shall be as follows, or at such other address as the parties may designate in writing by delivering notice of such change of address to the other party:

If to the Company:             Enservco Corporation

14133 Country Road 9 ½

Longmont, CO 80504

Attention: Mark Patterson, Chief Financial Officer

Email: mpatterson@enservco.com

With a copy (which shall not constitute notice) to:

Maslon LLP
3300 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402

Attention: Douglas T. Holod

Email: doug.holod@maslon.com

If to the Investor:              As indicated on Schedule A

7.12.    Entire Agreement. This Agreement and the Note contain the entire agreement among the parties with respect to the subject matter hereof and supersede all prior and contemporaneous arrangements or understandings with respect thereto.

7.13.    Severability. If any term or provision of this Agreement is held to be invalid, illegal or unenforceable under applicable law, such term(s) or provision(s) shall be excluded from this Agreement, and the balance of this Agreement shall be interpreted as if such term(s) or provision(s) were so excluded and shall be enforceable in accordance with its terms.

7.14.    Fees and Expenses. Except as otherwise provided herein, each of the parties hereto shall pay its own fees and expenses, including attorney fees, in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing, the Company shall reimburse the OilServ Investors $25,000 for legal fees and expenses.

7.15.    Confidentiality. Each party hereto agrees that, except (i) with the prior written permission of the other party or (ii) as required by law, regulation, rule, court order or subpoena, it shall at all times keep confidential and not divulge, furnish or make accessible to anyone any confidential information, knowledge or data concerning or relating to the business or financial affairs of the other party to which such party has been or shall become privy by reason of this Agreement, discussions or negotiations relating to this Agreement, the performance of its obligations hereunder or the Note purchased hereunder (“Confidential Information”), unless such Confidential Information (a) is known or becomes known to the public in general (other than as a result of a breach of this Section 7.15 by such party), (b) is or has been independently developed or conceived by such party without use of the other party’s Confidential Information, or (c) is or has been made known or disclosed to such party by a third party without a breach of any obligation of confidentiality such third party may have to the disclosing party. Notwithstanding anything to the contrary herein, (i) the Company may disclose the terms of the sale of the Note and the identity of the Investor as required by law or regulation, (ii) the Investor may disclose Confidential Information to: (w) the other Investors, (x) its respective attorneys, accountants, consultants, and other professionals, affiliates and representatives, (y) any prospective investor of any Company securities from such Investor, if such prospective investor agrees to be bound by the provisions of this Section 7.15, and (z) any existing or prospective affiliate, partner, member, stockholder, or wholly owned subsidiary of such Investor in the ordinary course of business.

7.16.    Further Assurances. Consistent with the terms and conditions hereof, the Investor and the Company agree to do and perform or cause to be done and performed all such further acts and things and to execute, acknowledge, and deliver such further documents and instruments as reasonably required in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.

7.17.    Usury. Regardless of any other provision of this Agreement or the Note, the Investor shall never be entitled to receive, collect or apply as interest on the principal amount of the Note any amount in excess of the maximum rate of interest allowable under applicable law, and in the event any Investor ever receives, collects or applies as interest thereon any such excess, such amount which would be excessive interest shall be deemed a partial prepayment of the principal amount of such Note and shall be treated as such, and if the principal amount of such Note is paid in full, any remaining excess shall forthwith be paid to the Company.

7.18.    Independent Nature of Investor’s Obligations and Rights. The obligations of the Investor under this Agreement and the Note issued to such Investor are several and not joint with the obligations of any Investor, and no other Investor shall be responsible in any way for the performance of the obligations of such Investor under this Agreement and the applicable Note. Nothing contained herein, and no action taken by any Investor pursuant hereto, shall be deemed to constitute the Investors as, and the Company acknowledges that the Investors do not so constitute, a partnership, an association, a joint venture or any other kind of group or entity and the Company shall not assert any such claim, with respect to such obligations or the transactions contemplated by this Agreement. The decision of the Investor to purchase a Note from the Company pursuant to this Agreement has been made by the Investor independently of any other Investor or other person or entity. No person or entity has acted as agent for the Investor in connection with the Investor making its investment hereunder and no person or entity will be acting as agent of the Investor in connection with monitoring such Investor’s investment in the Company or enforcing its rights under this Agreement. The Investor shall be entitled to independently protect and enforce his, her or its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any Investor to be joined as an additional party in any proceeding for such purpose. It is expressly understood and agreed that each provision contained in this Agreement is between the Company and the Investor solely and not between the Company and Investors collectively and not between and among the Investors.

[Signature pages follow]

IN WITNESS WHEREOF, the parties hereto have caused this Note Purchase Agreement to be effective as of the date first indicated above.

COMPANY:

ENSERVCO CORPORATION

By: /s/ Richard A. Murphy                               

Name:   Richard A. Murphy

Title:     Chief Executive Officer

INVESTORS:

Cross River Partners, LP:

By its General Partner,

Signature: /s/ Richard A. Murphy                  

Name: Richard A. Murphy

Title: Managing Partner                            

Angel Capital Partners, LP

Signature: /s/ Stephen D. Scott                         

Print Name: Stephen D. Scott

Equigen II, LLC.

Signature: /s/ Steven A. Weyel                         

Print Name: Steven A. Weyel

Signature Page to
Note Purchase Agreement

EXHIBIT A

Form of Convertible Promissory Note

(see attached)

Exhibit A to
Note Purchase Agreement

SCHEDULE A

Investors

¹ Includes an aggregate in $25,000 in legal fees and expenses retained by Investor.

SCHEDULE A to
Note Purchase Agreement

Exhibit 10.3

THIS CONVERTIBLE PROMISSORY NOTE AND THE SECURITIES INTO WHICH IT MAY BE CONVERTED HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR SUCH LAWS COVERING THE TRANSFER OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH TRANSFER IS EXEMPT FROM SUCH REGISTRATION. THIS NOTE IS UNSECURED.

ENSERVCO CORPORATION

CONVERTIBLE PROMISSORY NOTE

FOR VALUE RECEIVED, Enservco Corporation, a Delaware corporation (the “Company”), promises to pay to the order of [ ], or its registered assigns (the “Holder”), pursuant to the terms set forth in this Convertible Promissory Note (this “Note”), the principal amount of [ ($ )] (the “Principal Amount”), plus interest thereon. This Note is being issued pursuant to and subject to the terms of that certain Note Purchase Agreement of even date herewith by and between the Company and the Holder (the “Purchase Agreement”) which contains, among other things, appropriate representations and warranties of the Company and covenants of the Company reflecting the provisions set forth herein. All capitalized terms used but not otherwise defined herein shall have the meaning set forth in the Purchase Agreement. The terms of the Purchase Agreement are incorporated herein by reference.

1.        Interest. Interest on the Principal Amount of this Note shall accrue from the Issuance Date at a rate equal to sixteen percent (16%) per annum until this Note is paid in full or otherwise converted pursuant to Section 4 below. Interest shall be calculated on the basis of a three hundred sixty-five (365) day year, based on the actual number of days elapsed.

2.       Maturity Date. Subject to the conversion of this Note pursuant to Section 4 below, the Principal Amount of this Note, together with all accrued but unpaid interest thereon, shall be due and payable in full on the eighteenth-month anniversary of the Issuance Date (the “Maturity Date”).

3.       Payment; Prepayment. The Company shall make interest only payments under this Note on a quarterly basis at the end of each calendar quarter with the first such interest only payment to be for the period from the Issue Date through the quarter ending December 31, 2023. The first quarterly interest payment shall be in shares of the Company’s common stock (the “Common Stock”) to be issued at the five (5) day moving average of the closing sales price of the Common Stock on the NYSE/American Stock Exchange (the “NYSE”) immediately prior to December 31, 2023. For calendar quarters beginning March 31, 2024, the Company shall pay interest payments in United States Dollars on a quarterly basis within ten (10) days of the close of the quarter.

This Note may not be prepaid.

Unless this Note is converted pursuant to Section 4 below, on the Maturity Date, the Company shall pay all amounts due under this Note in full via wire transfer of immediately available funds to an account of the Holder as designated by the Holder in writing to the Company.

4.1.    Automatic Conversion. If the Company closes on a new offering of equity securities (the “Equity Financing”) of a minimum of five million dollars ($5,000,000) before the Maturity Date, then the Principal Amount , together with all accrued but unpaid interest thereon, shall automatically convert (the “Automatic Conversion”), subject to any NYSE shareholder approval requirements, on the closing date of such Equity Financing for no additional consideration payable by the Holder, into shares of the same class and type, at the same price and on the same terms and provisions as the securities issued to the other participants in the Equity Financing (the “Conversion Units”); provided, however, that the Notes converted into such equity of Company at the Holders option a) at fifty cents ($0.50) per share provided the security sold in the Equity Financing is Common Stock or b) based on a share price which is twenty five percent (25%) less than the lowest price per share of shares sold in the Equity Financing (the “ Equity Financing Conversion”)

4.2.        Optional Conversion. Subject to any NYSE shareholder approval requirements, the Holder may convert any or all of any outstanding Principal Amount and accrued but unpaid interest into the Company’s Common Stock at a conversion price of fifty cents ($0.50) per share (the “Optional Conversion”).

4.3.        Conversion Procedure.

4.3.1    Mechanics and Effect of Conversion. Upon the conversion of this Note, this Note shall be converted without any further action by the Holder and whether or not this Note is surrendered to the Company. Before the Holder shall be entitled to receive evidence of the Conversion Units, the Holder shall surrender this Note, duly endorsed, at the principal office of the Company, or the Holder shall otherwise notify the Company that this Note has been lost, stolen, or destroyed and shall execute and deliver an agreement satisfactory to the Company to indemnify the Company from any loss incurred by it in connection with this Note. The Company shall, as soon as practicable thereafter, issue and deliver to the Holder at the Holder’s address or if no such address appears or is given, at such principal office of the Company, a certificate or certificates for the number of Conversion Units to which the Holder shall be entitled upon such Automatic Conversion or Optional Conversion, as applicable (or, if the Conversion Units are not certificated, the Company shall deliver to the Holder an electronic confirmation of issuance of such Conversion Units issued to the Holder hereunder), together with a check payable to the Holder for any amounts payable in lieu of fractional shares as described below, if applicable. Upon the conversion of this Note, the Company shall be released from all its obligations and liabilities under this Note.

4.3.2    Fractional Units. No fractional shares of Common Stock shall be issued upon the Equity Financing Conversion. In lieu of the Company issuing any fractional shares of Common Stock, the Company shall pay to the Holder an amount equal to the product of (i) any such fractional amount, multiplied by (ii) the applicable conversion price.

5.         Events of Default. The occurrence of any of the following events shall constitute an “Event of Default” if such event remains uncured for a ten day period following such event:

(a)         The Company fails to pay interest only payments when due pursuant to Section 3 hereof or fails to pay the Principal Amount plus accrued but unpaid interest on this Note when due at the Maturity Date, unless this Note is converted pursuant to Section 4 above;

(b)         Any breach by the Company of any representation, warranty, or covenant contained in this Note or the Purchase Agreement, if such default has not been cured by the Company within thirty (30) days following the Company’s receipt of written notice from the Holder of such default;

(c)         Any liquidation or dissolution of the Company, whether voluntary or involuntary;

(d)         The institution by the Company of proceedings to be adjudicated as bankrupt or insolvent, or the consent by the Company to institution of bankruptcy or insolvency proceedings against the Company (or of any substantial part of its property) under any federal or state law, or the consent by the Company to or acquiescence in the filing of any petition relating thereto, or the appointment of a receiver, liquidator, assignee, trustee or other similar official of the Company, or the making by the Company of an assignment for the benefit of creditors, or the admission by the Company in writing of its inability to pay its debts generally as such debts become due; or

(e)         Commencement of proceedings against the Company seeking any bankruptcy, insolvency, liquidation, dissolution, or similar relief under any present or future statute, law, or regulation, if such proceedings have not been dismissed or stayed within ninety (90) days of commencement thereof, or the setting aside of any such stay of any such proceedings, or the appointment without the consent or acquiescence of the equity holders of the Company of any trustee, receiver, or liquidator of the Company or of all or any substantial portion of the properties of the Company, if such appointment has not been vacated within ninety (90) days thereof.

(a)         Upon the occurrence and during the continuance of an Event of Default, the Holder may declare this Note to be, and upon such declaration this Note shall be and become, immediately due and payable in United States Dollars in addition to any other rights or remedies the Holder may have under applicable law or the provisions of this Note or any related agreement between the Holder and the Company.

(b)         Upon an Event of Default relating to the payment of interest pursuant to Section 3, the interest shall accrue on the unpaid principle and interest as of such date of the Event of Default at the lesser of 22% per annum or the maximum amount allowed by law.

(c)         Upon an Event of Default relating to the payment of the Principal Amount on the Maturity Date, the Holder shall have the option, subject to any required NYSE stockholder approval, to convert the Principal Amount and accrued but unpaid interest into the Company’s Common Stock at a conversion price equal to the lower of (i) fifty percent (50%) of the closing sales price of the Common Stock on the NYSE on the date of the Event of Default, or (ii) fifty percent (50%) of the five (5) day moving average of the closing sales price of the Common Stock on the NYSE immediately prior to the date of conversion which such date of conversion must be on or prior to the Maturity Date.

7.          Obligations Pari Passu. The obligations of the Company under this Note shall be unsecured obligations of the Company. This Note shall rank equally in right of repayment with any other unsecured convertible promissory note(s) issued by the Company. Any and all repayment or prepayments of the obligations under this Note and any other unsecured convertible promissory note(s) issued by the Company shall be made ratably to the holders of all such notes, based on the sum of the outstanding principal balance and accrued and unpaid interest owed with respect to each note. The Company shall use the proceeds of this Note and all other similar Notes issued in connection with the Offering solely as working capital and shall not be used to repay existing debt, subordinated or senior, of the Company.

8.            Waivers; Fees. The Company hereby waives presentment, demand for payment, notice of non-performance, protest, notice of protest and notice of dishonor with respect to this Note. Other than pursuant to a writing by the Holder, no failure to convert any right of the Holder with respect to this Note, nor any delay in or waiver of the convert thereof, shall impair any such right or be deemed to be a waiver thereof. If the Holder is required to commence legal proceedings or incur any other cost to collect amounts due and payable hereunder or to enforce its rights under this Note, the Company shall be liable to pay or reimburse the Holder for all reasonable costs and expenses actually incurred in connection with the collection of such amounts and any such legal proceedings, including reasonable attorneys’ fees actually incurred.

9.1.    Amendment; Waiver. This Note is being offered as part of an offering of convertible promissory notes on the same terms as this Note (the “Offering”). The terms and conditions of this Note may only be amended after the Issuance Date by agreement of the Company and the holders greater than seventy-five percent (75%), of the outstanding principal of notes issued in the Offering. The amendment or waiver of any term of this Note, the resolution of any controversy or claim arising out of or relating to this Note and the provision of notice among the Company and the Holder will be governed by the terms of the Purchase Agreement, and any such amendment of this Note must be in a writing signed by the parties hereto.

9.2.    No Assignment by Company. The Company may not assign its rights or delegate any obligations hereunder without the prior written consent of the Holder.

9.3.    Change of Control. Upon a transaction which results in a change of control of the Company or a sale substantial portion of any of its assets prior to the Maturity Date, unless this Note is automatically converted in accordance with above, the Holder may elect to receive either (i) the Principal Amount plus accrued interest plus a premium that is equal to twenty five percent (25%) of the Principal Amount or (ii) the right to convert the Principal Amount and accrued but unpaid interest into the Company’s Common Stock at a conversion price equal to a twenty five percent (25%) discount to the five (5) day moving average of the closing sales price of the Common Stock on the NYSE immediately prior to the transaction which results in a change of control of the Company.

9.4.    Successors and Assigns. Subject to the exceptions specifically set forth in this Note, the terms and conditions of this Note shall inure to the benefit of and be binding upon the respective executors, administrators, heirs, successors and assigns of the parties.

9.5.    Loss or Mutilation of Note. Upon receipt by the Company of evidence satisfactory to the Company of the loss, theft, destruction, or mutilation of this Note, together with indemnity reasonably satisfactory to the Company (in the case of loss, theft, or destruction), or the surrender and cancellation of this Note (in the case of mutilation), the Company shall execute and deliver to the Holder a new Note of like tenor and denomination as this Note.

9.6.    Note Holder, Not Shareholder. This Note does not confer upon the Holder any right to vote or to consent to or to receive notice as a holder of shares of the Company, as such, in respect of any matters whatsoever, or any other rights or liabilities as a member of the Company, prior to the conversion hereof.

9.7.    Officers and Directors Not Liable. In no event will any officer, manager, or director of the Company be liable for any amounts due and payable pursuant to this Note.

9.8.    Governing Law. The terms of this Note shall be construed in accordance with the laws of the State of Delaware, without regard to its conflicts-of-law principles.

9.9.    Notices. All notices, other communication, or payment required or permitted hereunder shall be in writing and shall be deemed to have been given upon delivery to the address provided in the Purchase Agreement, or to such other address as either party may designate in writing to the other.

9.10.    Attorneys’ Fees. If any principal or interest represented by this Note or any part thereof is collected in bankruptcy, receivership, or other judicial proceedings, or if this Note is placed in the hands of attorneys for collection after default, the Company agrees to pay, in addition to the principal and interest payable hereunder, reasonable attorneys’ fees and costs incurred by the Holder in connection therewith.

9.11.    Severability. If any term or provision of this Note is held to be invalid, illegal, or unenforceable under applicable law, such term(s) or provision(s) shall be excluded from this Note, and the balance of this Note shall be interpreted as if such term(s) or provision(s) were so excluded and shall be enforceable in accordance with its terms.

9.12.    Counterparts. This Note may be executed by the Company (and accepted and acknowledged by the Holder) in two or more counterparts, each of which will be deemed an original but all of which will constitute one and the same instrument. Counterparts may be delivered via facsimile, email (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.

[Signature Page Follows]

IN WITNESS WHEREOF, the undersigned has caused this Note to be effective as of the date first set forth above.

Accepted and Acknowledged:

HOLDER:

Exhibit 99.1

Enservco Corporation Closes Acquisition of Rapid Hot Oilfield Services Provider

Company also enhances liquidity with closing of $1,625,000 of convertible debt transaction

Longmont, CO – September 11, 2023 – Enservco Corporation (NYSE American: ENSV), a diversified national provider of specialized well-site services to the domestic onshore conventional and unconventional oil and gas industries, today announced it has acquired all of the assets of oilfield services provider Rapid Hot in an all-stock transaction valued at $1,057,500.

Headquartered in Washington, PA, Rapid Hot serves E&P customers in the Appalachian Basin and is a leading provider of frac water heating services in Ohio, Pennsylvania and West Virginia.

“This acquisition substantially strengthens Enservco’s position in the Marcellus shale and also strengthens our management team with the addition of Mike Lade, Rapid Hot’s president and CFO, who joins Enservco as chief of staff,” said Rich Murphy. “We are also pleased to announce the closing of a $1,625,000 convertible debt financing that included participation from lead investors of Rapid Hot, an Enservco board member and Cross River Partners. The financing strengthens our working capital position as we approach our 2023-24 heating season, which is expected to benefit from anticipated cooler winter temperatures.”

Enservco also announced the addition of Steve Weyel to the Company’s Board of Directors. Weyel joins the Board with more than 40 years of experience as a senior executive, board director and chairman of private and public energy companies. He was the founder, CEO and Chairman of EnVen Energy Corporation, a deepwater exploration company that earlier this year was merged in a transaction valued at nearly $1.3 billion. His energy leadership encompasses global oil services, commodities, deregulated power and upstream oil and gas. He has successfully driven and closed dozens of M&A transactions and financings in excess of $20 billion.

“We look forward to benefitting from Steve’s deep experience in the energy space and ability to identify and close attractive M&A opportunities,” said Murphy. “In the last five months we have added two new directors to our Board, whose oversight and support of our management team will be essential as we expand our business.”

Weyel added, “I look forward to joining the Enservco Board and supporting management’s efforts to capitalize on organic and acquisitive growth opportunities. Enservco has made great progress in recent years reducing debt and taking costs out of the business, and I’m excited to join the Board at this stage of the Company’s evolution.”

About Enservco

Through its various operating subsidiaries, Enservco provides a range of oilfield services, including hot oiling, acidizing, frac water heating, and related services. The Company has a broad geographic footprint covering seven major domestic oil and gas basins and serves customers in Colorado, Montana, New Mexico, North Dakota, Oklahoma, Pennsylvania, Ohio, Texas, Wyoming, West Virginia, Utah, Michigan, Illinois, Florida, and Louisiana. Additional information is available at www.enservco.com.

*Note on non-GAAP Financial Measures

This press release and the accompanying tables include a discussion of EBITDA and Adjusted EBITDA, which are non-GAAP financial measures provided as a complement to the results provided in accordance with generally accepted accounting principles ("GAAP"). The term "EBITDA" refers to a financial measure that we define as earnings (net income or loss) plus or minus net interest plus taxes, depreciation and amortization. Adjusted EBITDA excludes from EBITDA stock-based compensation and, when appropriate, other items that management does not utilize in assessing Enservco’s operating performance (as further described in the attached financial schedules). None of these non-GAAP financial measures are recognized terms under GAAP and do not purport to be an alternative to net income as an indicator of operating performance or any other GAAP measure. We have reconciled Adjusted EBITDA to GAAP net loss in the Consolidated Statements of Operations table at the end of this release. We intend to continue to provide these non-GAAP financial measures as part of our future earnings discussions and, therefore, the inclusion of these non-GAAP financial measures will provide consistency in our financial reporting.

Cautionary Note Regarding Forward-Looking Statements

This news release contains information that is "forward-looking" in that it describes events and conditions Enservco reasonably expects to occur in the future. Expectations for the future performance of Enservco are dependent upon a number of factors, and there can be no assurance that Enservco will achieve the results as contemplated herein. Certain statements contained in this release using the terms "may," "expects to," “should,” and other terms denoting future possibilities, are forward-looking statements. The accuracy of these statements cannot be guaranteed as they are subject to a variety of risks, which are beyond Enservco's ability to predict, or control and which may cause actual results to differ materially from the projections or estimates contained herein. Among these risks are those set forth in Enservco’s annual report on Form 10-K for the year ended December 31, 2022, and subsequently filed documents with the SEC. Forward looking statements in this news release that are subject to risk include expectations for cooler winter weather and ability to reduce costs, grow organically and acquisitively, increase market share in key basins, improve its financial performance, build a larger business and return value to shareholders. It is important that each person reviewing this release understand the significant risks attendant to the operations of Enservco. The Company disclaims any obligation to update any forward-looking statement made herein.

Contact:

Mark Patterson

Chief Financial Officer

Enservco Corporation

mpatterson@enservco.com

Exhibit 99.2

Enservco Corporation Names Veteran Executive Mike Lade Senior Vice President & Chief of Staff

Longmont, CO – September 15, 2023 – Enservco Corporation (NYSE American: ENSV), a diversified national provider of specialized well-site services to the domestic onshore conventional and unconventional oil and gas industries, today announced the appointment of veteran executive Mike Lade as senior vice president and chief of staff.

Lade is the former president and CFO of Rapid Hot, an oilfield services company recently acquired by Enservco. A certified public account licensed in Texas, Lade has more than 30 years of executive experience with private and NYSE-listed companies, including extensive work in the energy sector. He began his career as an audit manager with Arthur Andersen.

“Mike brings a wealth of experience in operations, corporate development, M&A and capital formation for emerging growth companies,” said Rich Murphy, executive chairman. “He has an extensive entrepreneurial background and is an accomplished turnaround specialist who understands how to drive profitable growth. We look forward to benefitting from his experience and energy.”

Lade added, “With its national footprint, blue-chip customer base and stellar reputation for quality service delivery, Enservco is ideally positioned to capitalize on growth opportunities in the highly fragmented oilfield services space. We are going to focus on increasing market share and driving profitable organic growth, as well as opportunistic M&A activity that can diversify our service mix and reduce the seasonality of our business.”

As a material incentive for entering his employment with Enservco, Lade will receive 250,000 stock options with an exercise price of $0.41 per share, with 125,000 vesting on January 1, 2024, and 125,000 vesting on January 1, 2025.

About Enservco

Through its various operating subsidiaries, Enservco provides a range of oilfield services, including hot oiling, acidizing, frac water heating, and related services. The Company has a broad geographic footprint covering seven major domestic oil and gas basins and serves customers in Colorado, Montana, New Mexico, North Dakota, Oklahoma, Pennsylvania, Ohio, Texas, Wyoming, West Virginia, Utah, Michigan, Illinois, Florida, and Louisiana. Additional information is available at www.enservco.com.

Cautionary Note Regarding Forward-Looking Statements

This news release contains information that is "forward-looking" in that it describes events and conditions Enservco reasonably expects to occur in the future. Expectations for the future performance of Enservco are dependent upon a number of factors, and there can be no assurance that Enservco will achieve the results as contemplated herein. Certain statements contained in this release using the terms "may," "expects to," “should,” and other terms denoting future possibilities, are forward-looking statements. The accuracy of these statements cannot be guaranteed as they are subject to a variety of risks, which are beyond Enservco's ability to predict, or control and which may cause actual results to differ materially from the projections or estimates contained herein. Among these risks are those set forth in Enservco’s annual report on Form 10-K for the year ended December 31, 2022, and subsequently filed documents with the SEC. Forward looking statements in this news release that are subject to risk include ability to expand services mix and grow organically and through M&A, increase market share, and reduce seasonality of the business. It is important that each person reviewing this release understand the significant risks attendant to the operations of Enservco. The Company disclaims any obligation to update any forward-looking statement made herein.

Contact:

Mark Patterson

Chief Financial Officer

Enservco Corporation

mpatterson@enservco.com

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