AGREEMENT TO EXCHANGE COMMON STOCK
BETWEEN
USA SERVICE SYSTEMS, INC.
AND
EAST COAST BEVERAGE CORP.
INDEX Page
ARTICLE I - EXCHANGE OF SECURITIES ...................................... 4
ARTICLE II - REPRESENTATIONS AND WARRANTIES ......................... 4
2.0l - Organization ................................................ 4
2.02 - Capital ..................................................... 4
2.03 - Directors and Officers' Compensation; Banks ................. 4
2.04 - Financial Statements ........................................ 4
2.05 - Absence of Changes ......................................... 5
2.06 - Absence of Undisclosed Liabilities ......................... 5
2.07 - Tax Returns .................................................. 5
2.08 - Investigation of Financial Condition.......................... 5
2.09 - Trade Names and Rights ...................................... 5
2.l0 - Contracts and Leases ........................................ 5
2.ll - Insurance Policies ............................................5
2.l2 - Compliance with Laws ....................................... 5
2.l3 - Litigation ................................................ 6
2.l4 - Ability to Carry Out Obligations ........................... 6
2.l5 - Full Disclosure ............................................. 6
2.l6 - Assets ..................................................... 6
2A - Organization ................................................... 6
2B - Directors and Officers' Compensation; Banks .................... 6
2C - Capital ...................................................... 6
2D - Financial Statements .......................................... 7
2E - Absence of Changes ............................................ 7
2F - Absence of Undisclosed Liabilities ........................... 7
2G - Tax Returns .................................................... 7
2H - Investigation of Financial Condition of USA ................... 7
2I - Trade Names and Rights ......................................... 7
2J - Contracts and Leases ............................................8
2K - Insurance Policies ............................................. 8
2L - Compliance with Laws .......................................... 8
2M - Litigation ..................................................... 8
2N - Ability to Carry Out Obligations ............................... 8
2O - Full Disclosure .................................................9
2P - Assets ..........................................................9
ARTICLE III - SHAREHOLDER REPRESENTATIONS ............................. 9
ARTICLE IV - OBLIGATIONS BEFORE CLOSING ................................ 9
4.0l - Investigative Rights ......................................... 9
4.02 - Surrender of Shares.......................................... 9
4.03 - Conduct of Business ..........................................10
ARTICLE V - CONDITIONS PRECEDENT TO PERFORMANCE BY USA.................. 10
5.0l - Conditions ............................................... . 10
5.02 - Accuracy of Representations ................................. 10
5.03 - Performance...................................................10
5.04 - Absence of Litigation ........................................10
ARTICLE VI - CONDITIONS PRECEDENT TO PERFORMANCE ................ 11
BY ECBC. ................................................... 11
6.0l - Conditions ................................................... 11
6.02 - Accuracy of Representations ................................. 11
6.03 - Performance ................................................ 11
6.04 - Absence of Litigation ..................................... 11
6.05 - Other ....................................................... 11
ARTICLE VII - CLOSING ................................................... 11
7.0l - Closing .......................................................11
7.02 - Exchange of Shares .......................................... 12
7.03 - No Fractional Shares ..........................................12
7.04 - Appointment of Directors ......................................12
ARTICLE VIII - REMEDIES ..................................................12
8.0l - Arbitration ...................................................12
8.02 - Costs .........................................................12
8.03 - Termination ................................................. 12
ARTICLE IX - MISCELLANEOUS ...............................................13
9.0l - Captions and Headings .........................................13
9.02 - No Oral Change ................................................13
9.03 - Non-Waiver ....................................................13
9.04 - Time of Essence .............................................. 13
9.05 - Entire Agreement ..............................................13
9.06 - State Law .....................................................13
9.07 - Counterparts ..................................................13
9.08 - Notices .......................................................13
9.09 - Binding Effect ................................................14
9.l0 - Effect of Closing .............................................14
9.ll - Mutual Cooperation ............................................14
9.12 - Expenses...................................................... 15
Exhibit A - Officers and Directors (ECBC) ............................
Exhibit B - Financial Statements (ECBC) ...............................
Exhibit C - Not Used....................................................
Exhibit D - Not Used....................................................
Exhibit E - Not Used ...................................................
Exhibit F - Not Used....................................................
Exhibit G - Officers, Directors, Bank Accounts, Safe Deposit
Boxes, Powers of Attorney (USA) ............................
Exhibit H - Financial Statements - Changes in Financial
Condition (USA) .........................................
Exhibit I - Trademarks, Trade Names and Copyrights (USA) ...........
Exhibit J - Material Contracts (USA) ..................................
Exhibit K - Insurance Policies (USA) ...................................
Ehibit L - Litigation (USA) ...........................................
AGREEMENT TO EXCHANGE COMMON STOCK
This AGREEMENT, made this day of August, 1999, by and between USA Service
Systems Inc.("USA"), EAST COAST BEVERAGE CORP. ("ECBC") and the shareholders of
ECBC (as to Article I and Article III only) is made for the purpose of setting
forth the terms and conditions upon which USA will acquire all of the issued and
outstanding common stock of ECBC in exchange for shares of USA's common stock.
In consideration of the mutual promises, covenants, and representations
contained herein, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE I
EXCHANGE OF SECURITIES
Subject to the terms and conditions of this Agreement, USA agrees to
issue, and the shareholders of ECBC agree to accept 41,300,760 shares of the
common stock of USA in consideration for all of the issued and outstanding
common stock of ECBC. Immediately prior to the closing of this transaction, the
total issued capital of USA will not exceed 3,053,298 shares of Common Stock
ARTICLE II
REPRESENTATIONS AND WARRANTIES
ECBC represents and warrants to USA that:
2.0l Organization. ECBC is a corporation duly organized, validly existing,
and in good standing under the laws of Florida, has all necessary corporate
powers to own its properties and to carry on its business as now owned and
operated by it, and is duly qualified to do business and is in good standing in
each of the states where its business requires qualification.
2.02 Capital. The authorized capital stock of ECBC consists of 25,000,000
shares of common stock, $0.001, of which 5,040,000 shares will be issued and
outstanding at closing. ECBC is authorized to issue 5,000,000 shares of
preferred stock. All outstanding shares of preferred stock will be converted
into shares of common stock prior to closing. At closing, there will be no
outstanding subscriptions, options, rights, warrants, convertible securities, or
other agreements or commitments obligating ECBC to issue or to transfer from
treasury any additional shares of its capital stock of any class.
2.03 Directors and Officers' Compensation; Banks. Exhibit A to this
Agreement contains the names, and titles of all directors and officers of ECBC.
2.04 Financial Statements. Exhibit B to this Agreement sets forth balance
sheets of ECBC as of December 31, 1998 and June 30, 1999, and the related
statements of income for the periods then ended. The financial statements have
been prepared in accordance with generally accepted accounting principles
consistently followed by ECBC throughout the periods indicated, and fairly
present the financial position of ECBC as of the dates of the balance sheets
included in the financial statements, and the results of its operations for the
periods indicated.
2.05 Absence of Changes. Since June 30,1999, there has not been any change
in the financial condition or operations of ECBC, except changes in the ordinary
course of business, which changes have not in the aggregate been materially
adverse.
2.06 Absence of Undisclosed Liabilities. ECBC did not as of June 30, 1999
have any debt, liability, or obligation of any nature, whether accrued,
absolute, contingent, or otherwise, and whether due or to become due, that is
not reflected on Exhibit B.
2.07 Tax Returns. Within the times and in the manner prescribed by law,
ECBC has filed all federal, state, and local tax returns required by law and has
paid all taxes, assessments, and penalties due and payable. No federal income
tax returns of ECBC have been audited by the Internal Revenue Service. The
provision for taxes, if any, reflected in ECBC's balance sheet as of June 30
1999, is adequate for any and all federal, state, county, and local taxes for
the period ending on the date of that balance sheet and for all prior periods,
whether or not disputed. There are no present disputes as to taxes of any nature
payable by ECBC.
2.08 Investigation of Financial Condition. Without in any manner reducing
or otherwise mitigating the representations contained herein, USA shall have the
opportunity to meet with ECBC's accountants and attorneys to discuss the
financial condition of ECBC. ECBC shall make available to USA the books and
records of ECBC. The minutes of ECBC are a complete and accurate record of all
meetings of the shareholders and directors of ECBC and accurately reflect all
actions taken at such meetings. The signatures of the directors and/or officers
on such minutes are the valid signatures of ECBC's directors and/or officers who
were duly elected or appointed on the dates that the minutes were signed by such
persons. The stock book of ECBC contains an accurate record of all transactions
with respect to the capital stock of ECBC.
2.09 Trade Names and Rights. No person other than ECBC owns any trademark,
trademark registration or application, service xxxx, trade name, copyright, or
copyright registration or application the use of which is necessary or
contemplated in connection with the operation of ECBC's business.
2.l0 Contracts and Leases. ECBC is not in default under any agreements or
lease to which it is a party.
2.ll Insurance Policies. ECBC's business and property are adequately
coverd by insurance policies that are in full force and effect.
2.l2 Compliance with Laws. ECBC has complied with, and is not in violation
of, applicable federal, state, or local statutes, laws, and regulations
affecting its properties or the operation of its business, including but not
limited to applicable federal and state securities laws. ECBC does not have any
employee benefit plan which is subject to the provisions of the Employee
Retirement Income Security Act of 1974.
2.l3 Litigation. ECBC is not a party to any suit, action, arbitration, or
legal, administrative, or other proceeding, or governmental investigation
pending or, to the best knowledge of ECBC threatened, against or affecting ECBC
or its business, assets, or financial condition. ECBC is not in default with
respect to any order, writ, injunction, or decree of any federal, state, local,
or foreign court, department, agency, or instrumentality. ECBC is not engaged in
any legal action to recover moneys due to ECBC or damages sustained by ECBC.
2.14 Ability to Carry Out Obligations. ECBC has the right, power, and
authority to enter into, and perform its obligations under, this Agreement. The
execution and delivery of this Agreement by ECBC and the performance by ECBC of
its obligations hereunder will not cause, constitute, or conflict with or result
in (a) any breach or violation or any of the provisions of or constitute a
default under any license, indenture, mortgage, charter, instrument, articles of
incorporation, by-law, or other agreement or instrument to which ECBC is a
party, or by which it may be bound, nor will any consents or authorizations of
any party other than those hereto be required, (b) an event that would permit
any party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of ECBC, or (c) an event that
would result in the creation or imposition or any lien, charge, or encumbrance
on any asset of ECBC.
2.15 Full Disclosure. None of representations and warranties made by ECBC,
or in any certificate or memorandum furnished or to be furnished by ECBC, or on
its behalf, contains or will contain any untrue statement of material fact, or
omit any material fact the omission of which would be misleading. ECBC has
disclosed to USA all reasonably foreseeable contingencies which, if such
contingencies transpired, would have a material adverse effect on ECBC's
business.
2.l6 Assets. ECBC has good and marketable title to all of its property.
USA represents and warrants to ECBC that:
2A. Organization. USA is a corporation duly organized, validly existing,
and in good standing under the laws of Colorado, has all necessary corporate
powers to own its properties and to carry on its business as now owned and
operated by it, and is duly qualified to do business and is in good standing in
each of the states where its business requires qualification.
2B. Directors and Officers' Compensation; Banks. Exhibit G to this
Agreement contains: (i) the names, addresses, and titles of all directors and
officers of USA and all persons whose compensation from USA as of the date of
this Agreement will equal or its expected to equal or exceed, at an annual rate,
the sum of $5,000; (ii) the name and address of each bank with which USA has an
account or safety deposit box, the identification number thereof, and the names
of all persons who are authorized to draw thereon or have access thereto; and
(iii) the names of all persons who have a power of attorney from USA and a
summary of the terms thereof.
2C. Capital. The authorized capital stock of USA consists of 100,000,000
shares of common stock, $0.0001 par value, of which 3,053,298 shares will be
issued and outstanding immediately prior to closing. USA has not issued any
shares of preferred stock. All of the shares are validly issued, fully paid, and
non-assessable. At closing, there will be no outstanding subscriptions, options,
rights, warrants, convertible securities, or other agreements or commitments
obligating USA to issue or to transfer from treasury any additional shares of
its capital stock of any class.
2D. Financial Statements. Exhibit H to this Agreement sets forth balance
sheets of USA as of May 31,1999, and the related statements of income and
retained earnings for the period then ended. The financial statements have been
prepared in accordance with generally accepted accounting principles
consistently followed by USA throughout the periods indicated, and fairly
present the financial position of USA as of the dates of the balance sheets
included in the financial statements, and the results of its operations for the
periods indicated.
2E. Absence of Changes. Since May 31,1999, there has not been any change
in the financial condition or operations of USA, except (i) changes in the
ordinary course of business, which changes have not in the aggregate been
materially adverse, and (ii) changes disclosed on Exhibit H.
2F. Absence of Undisclosed Liabilities. USA did not as of May 31,1999 have
any debt, liability, or obligation of any nature, whether accrued, absolute,
contingent, or otherwise, and whether due or to become due, that is not
reflected on Exhibit H.
2G. Tax Returns. Within the times and in the manner prescribed by law, USA
has filed all federal, state, and local tax returns required by law and has paid
all taxes, assessments, and penalties due and payable. No federal income tax
returns of USA have been audited by the Internal Revenue Service. The provision
for taxes, if any, reflected in USA's balance sheet as of May 31,1999, is
adequate for any and all federal, state, county, and local taxes for the period
ending on the date of that balance sheet and for all prior periods, whether or
not disputed. There are no present disputes as to taxes of any nature payable by
USA.
2H. Investigation of Financial Condition of USA. Without in any manner
reducing or otherwise mitigating the representations contained herein, ECBC
shall have the opportunity to meet with USA's accountants and attorneys to
discuss the financial condition of USA. USA shall make available to ECBC the
books and records of USA. The minutes of USA are a complete and accurate record
of all meetings of the shareholders and directors of USA and accurately reflect
all actions taken at such meetings. The signatures of the directors and/or
officers on such minutes are the valid signatures of USA's directors and/or
officers who were duly elected or appointed on the dates that the minutes were
signed by such persons.
2I. Trade Names and Rights. Exhibit I attached hereto and made a part
hereof lists all trademarks, trademark registrations or applications, trade
names, service marks, copyrights, copyright registrations or applications which
are owned by USA. No person, other than USA, will own any trademark, trademark
registration or application, service xxxx, trade name, copyright, or copyright
registration or application the use of which is necessary or contemplated in
connection with the operation of the business of USA, as such business is to be
conducted after the closing of this transaction.
2J. Contracts and Leases. Exhibit J attached hereto and made a part hereof
contains a summary of provisions of all material contracts, leases, and other
agreements of USA presently in existence or which have been agreed to by USA.
USA is not in default under any of these agreements or leases.
2K. Insurance Policies. Exhibit K to this Agreement is a description of
all insurance policies held by USA concerning its business and properties. All
these policies are in the respective principal amounts set forth in Exhibit K.
2L. Compliance with Laws. USA has complied with, and is not in violation
of, applicable federal, state, or local statutes, laws, and regulations
affecting its properties or the operation of its business, including but not
limited to federal and state securities laws. USA does not have any employee
benefit plan which is subject to the provisions of the Employee Retirement
Income Security Act of 1974. USA has filed with the Securities and Exchange
Commission ("SEC") and any applicable state securities agency, all required
forms, reports, schedules, statements and other documents (collectively, the
"SEC Documents"). The SEC Documents filed by USA, including without limitation
any financial statements or schedules included therein, at the time filed, (a)
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and (b) complied in all material respects with applicable
federal and state securities laws, as the case may be, and the rules and
regulations of the SEC and any applicable state securities agency. The financial
statements of USA included in the SEC Documents complied as to form in all
material respects with applicable accounting requirements and 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 period involved (except as may be indicated in the notes
thereto) and fairly presented (subject, in the case of the unaudited statements,
to normal year-end audit adjustments) the consolidated financial position of USA
as of the dates thereof and the consolidated results of its operations and cash
flows for the periods then ended.
2M. Litigation. Other than as disclosed on Exhibit L, USA is not a party
to any suit, action, arbitration, or legal, administrative, or other proceeding,
or governmental investigation pending or, to the best knowledge of USA
threatened, against or affecting USA or its business, assets, or financial
condition. USA is not in default with respect to any order, writ, injunction, or
decree of any federal, state, local, or foreign court, department, agency, or
instrumentality. USA is not engaged in any legal action to recover moneys due to
it or damages sustained by it other than as disclosed on Exhibit L.
2N. Ability to Carry Out Obligations. Subject to the approval of this
Agreement by the shareholders of USA, USA has the right, power, and authority to
enter into, and perform its obligations under, this Agreement. The execution and
delivery of this Agreement by USA and the performance by USA of its obligations
hereunder will not cause, constitute, or conflict with or result in (a) any
breach or violation or any of the provisions of or constitute a default under
any license, indenture, mortgage, charter, instrument, articles of
incorporation, by-law, or other agreement or instrument to which USA is a party,
or by which it may be bound, nor will any consents or authorizations of any
party other than those hereto be required, (b) an event that would permit any
party to any agreement or instrument to terminate it or to accelerate the
maturity of any indebtedness or other obligation of USA, or (c) an event that
would result in the creation or imposition or any lien, charge, or encumbrance
on any asset of USA.
2O. Full Disclosure. None of representations and warranties made by USA,
or in any certificate or memorandum furnished or to be furnished by USA, or on
its behalf, contains or will contain any untrue statement of material fact, or
omit any material fact the omission of which would be misleading. USA has
disclosed to ECBC all reasonably foreseeable contingencies which, if such
contingencies transpired, would have a material adverse effect on USA.
2P. Assets. USA has good and marketable title to all of its property.
ARTICLE III
SHAREHOLDER REPRESENTATIONS
Each shareholder of ECBC represents to USA that he has the right, power,
and authority to enter into, and perform his obligations under this Agreement.
The execution and delivery of this Agreement by such shareholder and the
delivery by such shareholder of his shares in ECBC pursuant to Article I will
not cause, constitute, or conflict with or result in any breach or violation or
any of the provisions of or constitute a default under any license, indenture,
mortgage, charter, instrument, or agreement to which he is a party, or by which
he may be bound, nor will any consents or authorizations of any party be
required. Each shareholder of ECBC represents and warrants to USA that the
shares of ECBC that such shareholder will deliver at closing will be free of any
liens or encumbrances.
Each shareholder of ECBC understands that the shares being acquired from USA
represent restricted securities as that term is defined in Rule l44 of the
Securities and Exchange Commission.
ARTICLE IV
OBLIGATIONS BEFORE CLOSING
4.0l Investigative Rights. From the date of this Agreement until the date
of closing, each party shall provide to the other party, and such other party's
counsel, accountants, auditors, and other authorized representatives, full
access during normal business hours to all of each party's properties, books,
contracts, commitments, records and correspondence and communications with
regulatory agencies for the purpose of examining the same. Each party shall
furnish the other party with all information concerning each party's affairs as
the other party may reasonably request.
4.02 Surrender of Shares. Prior to the closing of this transaction, the
following shareholders of USA shall have surrendered for cancellation
certificates representing the following shares of USA's common stock.
Name Shares to be Cancelled
Xxxxxx Xxxxxxxxx 1,261,030
Xxxxxxx Xxxxxx 1,312,458
Xxxxx XxXxx 107,143
Xxxxxxx XxxXxxxxx 53,571
4.03 Conduct of Business. Prior to the closing, and except as contemplated
by this Agreement, each party shall conduct its business in the normal course,
and shall not sell, pledge, or assign any assets, without the prior written
approval of the other party, except in the regular course of business. Except as
contemplated by this Agreement, neither party to this Agreement shall amend its
Articles of Incorporation or By-laws, declare dividends, redeem or sell stock or
other securities, incur additional or newly-funded material liabilities, acquire
or dispose of fixed assets, change senior management, change employment terms,
enter into any material or long-term contract, guarantee obligations of any
third party, settle or discharge any balance sheet receivable for less than its
stated amount, pay more on any liability than its stated amount, or enter into
any other transaction other than in the regular course of business.
Notwithstanding the above, ECBC, following the closing of this
transaction, plans to raise additional capital through the sale of approximately
12,000,000 shares of USA's common stock. Follwing the sale of these shares, USA
plans to request its shareholders to approve a 1 for 8.194595 reverse split of
its outstanding common stock.
ARTICLE V
CONDITIONS PRECEDENT TO PERFORMANCE BY USA
5.01 Conditions. USA's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of all the conditions set forth in this
Article V. USA may waive any or all of these conditions in whole or in part
without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by USA of any other condition of or any of USA's other
rights or remedies, at law or in equity, if ECBC shall be in default of any of
its representations, warranties, or covenants under this agreement.
5.02 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by ECBC in this Agreement or in
any written statement that shall be delivered to USA by ECBC under this
Agreement shall be true on and as of the closing date as though made at those
times.
5.03 Performance. ECBC shall have performed, satisfied, and complied with
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the closing. ECBC shall have
obtained all necessary consents and approvals necessary to consummate the
transactions contemplated hereby.
5.04 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this agreement or to its consummation, shall have been
instituted or threatened on or before the closing.
ARTICLE VI
CONDITIONS PRECEDENT TO PERFORMANCE BY ECBC
6.01 Conditions. ECBC's obligations hereunder shall be subject to the
satisfaction, at or before the Closing, of the conditions set forth in this
Article VI. ECBC may waive any or all of these conditions in whole or in part
without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by ECBC of any other condition of or any of ECBC's
other rights or remedies, at law or in equity, if USA shall be in default of any
of its representations, warranties, or covenants under this agreement.
6.02 Accuracy of Representations. Except as otherwise permitted by this
Agreement, all representations and warranties by USA in this Agreement or in any
written statement that shall be delivered to ECBC by USA under this Agreement
shall be true on and as of the closing date as though made at those times.
6.03 Performance. USA shall have performed, satisfied, and complied with
all covenants, agreements, and conditions required by this Agreement to be
performed or complied with by it, on or before the closing. USA shall have
obtained all necessary consents and approvals necessary to consummate the
transactions contemplated hereby, including those required by Section 4.02.
6.04 Absence of Litigation. No action, suit, or proceeding before any
court or any governmental body or authority, pertaining to the transaction
contemplated by this agreement or to its consummation, shall have been
instituted or threatened on or before the closing.
6.05 Other. At the time of closing, the liabilities and accrued expenses
of USA, and the future amounts payable pursuant to any agreement to which USA is
a party (and which has not been assumed by a third party which has indemnified
USA as to the assumed obligations of such agreement) will be fully satisfied by
payments of not more than $200,000 to the creditors of USA.
ARTICLE VI
CLOSING
7.0l Closing. The closing of this transaction shall be held at the offices
of ECBC. Unless the closing of this transaction takes place before September 6,
1999, then either party may terminate this Agreement without liability to the
other party, except as otherwise provided in Section 9.12. At the closing, the
following documents, in form reasonably acceptable to counsel to the parties or
as set forth herein, shall be delivered:
By ECBC:
A. An officer's certificate, dated the closing date, that all
representations, warranties, covenants, and conditions set forth in this
Agreement on behalf of ECBC are true and correct as of, or have been fully
performed and complied with by, the closing date.
By USA:
A. An officer's certificate, dated the closing date, that all
representations, warranties, covenants, and conditions set forth in this
Agreement on behalf of USA are true and correct as of, or have been fully
performed and complied with by, the closing date.
7.02 Exchange of Shares. On the closing date, each share of common stock
of ECBC then issued and outstanding, will be exchanged, on a pro-rata basis, for
fully paid and nonassessable shares of USA in accordance with this Agreement.
7.03 No Fractional Shares. No certificates for fractional share interests
of common stock of USA will be issued, but, in lieu thereof, USA will issue one
share of its common stock for each fractional share held in ECBC.
7.04 Appointment of Directors. At the closing of this Agreement, USA will
cause Xxxx Xxxxxxxxx to be appointed to USA's Board of Directors. Following such
appointment, all present officers and directors of USA will resign.
ARTICLE VIII
REMEDIES
8.01 Arbitration. Any controversy or claim arising out of, or relating to,
this Agreement, or the making, performance, or interpretation thereof, shall be
settled by arbitration in Miami, Florida in accordance with the Rules of the
American Arbitration Association then existing, and judgment on the arbitration
award may be entered in any court having jurisdiction over the subject matter of
the controversy.
8.02 Costs. If any legal action or any arbitration or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default, or misrepresentation in connection with any of the provisions
of this Agreement, the successful or prevailing party or parties shall be
entitled to recover reasonable attorney's fees and other costs incurred in that
action or proceeding, in addition to any other relief to which it or they may be
entitled.
8.03 Termination. In addition to the other remedies, USA or ECBC may on or
prior to the closing date terminate this Agreement, without liability to the
other party:
(i) If any bona fide action or proceeding shall be pending against USA
or ECBC on the closing date that could result in an unfavorable judgment,
decree, or order that would prevent or make unlawful the carrying out of this
Agreement or if any agency of the federal or of any state government shall have
objected at or before the closing date to this acquisition or to any other
action required by or in connection with this Agreement;
(ii) If the legality and sufficiency of all steps taken and to be taken by
each party in carrying out this Agreement shall not have been approved by the
respective party's counsel, which approval shall not be unreasonably withheld.
(iii)If a party breaches any representation, warranty, covenant or obligation
of such party set forth herein and such breach is not corrected within ten
days of receiving written notice from the other party of such breach.
ARTICLE IX
MISCELLANEOUS
9.01 Captions and Headings. The Article and paragraph headings throughout
this Agreement are for convenience and reference only, and shall in no way be
deemed to define, limit, or add to the meaning of any provision of this
Agreement.
9.02 No Oral Change. This Agreement and any provision hereof, may not be
waived, changed, modified, or discharged orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
9.03 Non-Waiver. Except as otherwise expressly provided herein, no waiver
of any covenant, condition, or provision of this Agreement shall be deemed to
have been made unless expressly in writing and signed by the party against whom
such waiver is charged; and (i) the failure of any party to insist in any one or
more cases upon the performance of any of the provisions, covenants, or
conditions of this Agreement or to exercise any option herein contained shall
not be construed as a waiver or relinquishment for the future of any such
provisions, convenants, or conditions, (ii) the acceptance of performance of
anything required by this Agreement to be performed with knowledge of the breach
or failure of a covenant, condition, or provision hereof shall not be deemed a
waiver of such breach or failure, and (iii) no waiver by any party of one breach
by another party shall be construed as a waiver with respect to any other or
subsequent breach.
9.04 Time of Essence. Time is of the essence of this Agreement and of each
and every provision hereof.
9.05 Entire Agreement. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements,
understandings and the letters of intent between the parties.
9.06 State Law. This Agreement and its application shall be governed by the
laws of the State of Florida.
9.07 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.08 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, or on the third day after mailing if mailed to the party to whom
notice is to be given, by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
USA Service Systems Inc.
Xxxxxx Xxxxxxxxx
USA Service Systems, Inc.
00000 Xxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
With a copy to:
East Coast Beverage Corp.
East Coast Beverage
0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
(000) 000-0000 (fax)
With a copy to:
Xxxxxxx X. Xxxx, Esq.
Xxxx & Xxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
(000) 000-0000
(000) 000-0000 (fax)
9.09 Binding Effect. This Agreement shall inure to and be binding upon the
heirs, executors, personal representatives, successors and assigns of each of
the parties to this Agreement.
9.10 Effect of Closing. All representations, warranties, covenants, and
agreements of the parties contained in this Agreement, or in any instrument,
certificate, opinion, or other writing provided for in it, shall survive the
closing of this Agreement.
9.ll Mutual Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein. Neither party will
intentionally take any action, or omit to take any action, which will cause a
breach of such party's obligations pursuant to this Agreement.
9.12 Expenses. Each of the parties hereto agrees to pay all of its own
expenses (including without limitation, attorneys' and accountants' fees)
incurred in connection with this Agreement, the transactions contemplated herein
and negotiations leading to the same and the preparations made for carrying the
same into effect. Each of the parties expressly represents and warrants that no
finder or broker has been involved in this transaction and each party agrees to
indemnify and hold the other party harmless from any commission, fee or claim of
any person, firm or corporation employed or retained by such party (or claiming
to be employed or retained by such party) to bring about or represent such party
in the transactions contemplated by this Agreement.
AGREED TO AND ACCEPTED as of the date first above written.
USA Service Systems Inc.
By
Xxxxxx Xxxxxxxxx, President
East Coast Beverage Corp.
By
Xxxx Xxxxxxxxx, Chief Executive Officer
AGREED TO AND ACCEPTED as to Articles I and III only:
Xxxx Xxxxxxxxx
X.X. Xxxxx
Xxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxx X. Xxxxx
X.X. Xxxxx Profit Trust
By __________________________________
Xxxxxxx X. Xxxxxxxx Trust
By __________________________________
Xxxxxx Xxxxx X.X.X. Trust
By __________________________________
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxx X.X.X. Trust
By __________________________________
----------------------------------
Xxxx Xxxxxxxxx
----------------------------------
Xxxxxx Xxxxxxxx
----------------------------------
Xxxx Xxxxxxxx
----------------------------------
Xxxxxxx Xxxxx Xxxxxxx
----------------------------------
Xxxx Xxxxxx
Genco Overseas Ventures Limited
By __________________________________
Authorized Officer
Aicon Investments, Limited
By __________________________________
Authorized Officer
