REDEMPTION AGREEMENT
THIS REDEMPTION AGREEMENT ("AGREEMENT") is made and entered into as of the
28 day of April, 1998 by and among Dominion Park, L.L.C., a Delaware limited
liability company ("DOMINION PARK"), Deere Park Equities, L.L.C., an Illinois
limited liability company ("DEERE PARK"), Xxxxx Investments, Inc., an Illinois
corporation ("Xxxxx"), Riverwood Investments, L.L.C., a Delaware limited
liability company ("RIVERWOOD"), Wellgate International, Ltd., a British Virgin
Islands corporation ("WELLGATE"), Xxxxxx X. Xxxxxxxxx ("MARENGERE"), Xxxxxxx X.
Xxxxxxxxx ("XXXXXXXXX"), and Xxxx Xxxxx ("XXXXX"). Marengere, Xxxxxxxxx and
Xxxxx are hereinafter collectively referred to as "DBC MANAGEMENT."
RECITALS:
A. The following parties are the current members of Dominion Park:
(i) Deere Park; (ii) Wellgate; and (iii) Riverwood.
X. Xxxxx is an affiliate of Dominion Park, Deere Park and Riverwood.
C. Dominion Park is governed by the terms of that certain letter
agreement dated August 19, 1997 among Deere Park, Marengere and Xxxxxxxxx, as
amended on August 29, 1997, March 16, 1998 and on the date hereof, a copy of
which is attached hereto (with all amendments) as EXHIBIT A (the "LETTER
AGREEMENT").
D. Dominion Park's assets currently include the following property:
(i) 2,380,000 shares (the "DOMINION PARK DBC SHARES") of common stock, par value
of $0.001 per share, of Dominion Bridge Corporation, a Delaware corporation
("DBC"); (ii) a Class C membership interest in Deere Park Equities, which
membership interest was received in exchange for the contribution of 2,110,100
shares of common stock, par value of $0.001 per share, of DBC to Deere Park
Equities by Dominion Park; and (iii) 775,000 shares (the "AMERICAN ECO SHARES")
of common stock, no par value, of American Eco Corporation, an Ontario, Canada
corporation ("AMERICAN ECO").
E. Wellgate currently owns 2,023,399 shares of common stock, par value
$0.001 per share, of DBC (the "WELLGATE DBC SHARES"), of which 500,000 shares of
common stock of DBC have been pledged to Dominion Park, are in the possession of
Dominion Park and are referred to in the Letter Agreement as the "Management
Guaranty Shares."
F. The members of Dominion Park have determined it is in the best
interest of Dominion Park to redeem all of Wellgate's interest in Dominion Park
(and, indirectly, any interest of DBC Management or any other shareholder of
Wellgate in Dominion Park), on the terms and subject to the conditions set forth
below.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
1. REDEMPTION OF WELLGATE. Wellgate hereby agrees to sell to Dominion
Park, and Dominion Park hereby agrees to purchase from Wellgate, on the date
hereof, free and clear of all liens, pledges, charges, security interests,
claims, encumbrances and restrictions of any nature whatsoever (collectively,
"ENCUMBRANCES"), (a) all of Wellgate's interest in Dominion Park including,
without limitation, Wellgate's membership interest in Dominion Park and all of
Wellgate's right, title and interest in and to the Dominion Park DBC Shares, (b)
the Wellgate DBC Shares, and (c) any indirect interest DBC Management or any
other person or entity may have in any of the foregoing. In consideration
therefor, Dominion Park hereby agrees to transfer to Wellgate, on the date
hereof, by means of delivery to Xxxxxxx Mercure (as escrow agent for the parties
hereto), all of the American Eco Shares, free and clear of all Encumbrances
other than the restrictions imposed pursuant to the Lock-Up and Escrow Agreement
described in Section 2 of this Agreement.
2. LOCK-UP AND ESCROW AGREEMENT. Concurrently with execution of this
Agreement, the parties hereto and Xxxxxxx Mercure, as escrow agent, will enter
into a Lock-Up and Escrow Agreement in form and substance satisfactory to all of
such parties, which will impose certain restrictions on the sale, transfer or
hypothecation by Wellgate or DBC Management of the American Eco Shares.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF WELLGATE AND DBC
MANAGEMENT.
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING WELLGATE.
Wellgate, Marengere, Xxxxxxxxx and Xxxxx hereby represent, warrant and covenant
to Dominion Park, Deere Park, Lamar and Riverwood as follows:
(i) Wellgate is a corporation duly organized, validly existing
and in good standing under the laws of the British Virgin Islands.
(ii) Each of Wellgate, Marengere, Xxxxxxxxx and Xxxxx have full
power and authority to execute and perform this Agreement. This Agreement has
been duly executed and delivered by Wellgate, Marengere, Xxxxxxxxx and Xxxxx,
and constitutes the legal, valid and binding obligation of such parties
enforceable against them in accordance with its terms.
(iii) The execution and delivery of this Agreement and the
performance of the transactions contemplated hereby by Wellgate have been duly
authorized by the shareholders and the board of directors of Wellgate, do not
require any
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further authorization of Wellgate or any other person or entity, and will not
violate or contravene any provision of law affecting Wellgate, any order of
any court or other agency of government, Wellgate's charter or articles of
incorporation, its by-laws, or any agreement to which Wellgate is a party or
by which it is bound.
(iv) The shares of DBC common stock previously contributed by
Wellgate to Dominion Park (i.e., the "MANAGEMENT OPTION SHARES," as defined in
the Letter Agreement), and the Wellgate DBC Shares being transferred to Dominion
Park pursuant to this Agreement, are (i) duly authorized, validly issued, fully
paid and non-assessable, and free and clear of any Encumbrances, and (ii) are
not subject to any restrictions on transfer under applicable securities laws,
except for those that apply to sales of securities by an affiliate of the issuer
under Rule 144 of the U.S. Securities Act of 1933, as amended.
(v) Attached hereto as EXHIBIT B are true and correct copies of
the articles of incorporation, bylaws, and a list of the current shareholders,
directors and officers of, Wellgate. Attached hereto as EXHIBIT C is a true and
correct copy of a Settlement, Release and Discharge Agreement duly executed by
each person or entity that has a direct or indirect interest in Wellgate, the
Management Option Shares previously contributed by Wellgate to Dominion Park, or
the Wellgate DBC Shares, including, without limitation, Xxxxx Xxxxxxxxxxxxxx,
Xxxxxxx Xxxxxxx, J. Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxx, Xxxxxx
Xxxxxx, Xxx Shtym, Xxxxxxx Xxxxxxx and Xxxxxxxxx Prud'homme, pursuant to which
each such party has released any claims it may have with respect to the
Management Option Shares or any interest in Wellgate or its property.
(vi) Wellgate has good and marketable title to the Wellgate DBC
Shares. On the date of execution hereof, Wellgate will transfer to Dominion
Park, subject to no Encumbrances, (i) good and marketable title to all of the
Wellgate DBC Shares, and (ii) all of its interest in Dominion Park or any
property held thereby.
(vii) DBC, DBC Management and Wellgate have not taken and will not
take, directly or indirectly, any action designated to or which might reasonably
be expected to cause or result in stabilization or manipulation of the price of
the common stock of DBC, and DBC Management is not aware of any such action
taken or to be taken by any of such parties or by any affiliate of DBC.
(b) REPRESENTATIONS AND WARRANTIES REGARDING DBC AND ITS
SUBSIDIARIES. Wellgate, Marengere, Xxxxxxxxx and Xxxxx hereby represent and
warrant to Dominion Park, Deere Park, Lamar and Riverwood that, to the best of
their actual knowledge after due inquiry:
(i) Attached hereto as EXHIBIT D is a true and correct summary
of all of DBC's and its subsidiaries' unpaid tax and fiduciary liabilities and
of all agreements DBC and its subsidiaries have reached regarding the payment of
such
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liabilities, and that DBC and its subsidiaries have has performed all of
their respective obligations under such agreements required to be performed
as of the date hereof.
(ii) All documents required to be filed by DBC with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), have been filed and, at
the time they were filed, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
(iii) Since the date of filing of DBC's most recent Quarterly
Report on Form 10-Q under the Exchange Act, other than as disclosed on EXHIBIT E
hereto, there have been no material adverse changes in the condition (financial
or other), business or material prospects of DBC or any of its subsidiaries, and
no material transactions have been consummated by DBC or any of its subsidiaries
since such date other than in the ordinary course of business.
It is understood that Wellgate, Marengere, Xxxxxxxxx and Xxxxx are not actively
engaged in the management of the business of DBC's subsidiary XxXxxxxxx Xxxxxx
Corporation, an Australian corporation ("MDC"), and that the foregoing
representations, insofar as they pertain to MDC, are based solely on examination
of MDC's public filings with Australian authorities and actual knowledge of
Wellgate, Marengere, Xxxxxxxxx and Xxxxx regarding any matters not disclosed, or
not accurately disclosed, therein.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DOMINION PARK, DEERE
PARK, LAMAR AND RIVERWOOD.
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING DOMINION
PARK. Dominion Park, Deere Park, Lamar and Riverwood hereby represent, warrant
and covenant to Wellgate, Marengere, Xxxxxxxxx and Xxxxx as follows:
(i) Dominion Park is a limited liability company duly
organized, validly existing and in good standing under the laws of the State
of Delaware.
(ii) Dominion Park has full power and authority to execute and
perform this Agreement. This Agreement has been duly executed and delivered by
Dominion Park, and constitutes the legal, valid and binding obligation of
Dominion Park enforceable against it in accordance with its terms.
(iii) The execution and delivery of this Agreement and the
performance of the transactions contemplated hereby by Dominion Park have been
duly authorized by the managers and members of Dominion Park, do not require any
further authorization of Dominion Park or any person or entity, and will not
violate or contravene any provision of law affecting Dominion Park, any order of
any court, Dominion Park's
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Articles of Organization, or any agreement to which Dominion Park is a party
or by which it is bound.
(iv) The American Eco Shares being transferred to Wellgate
pursuant to this Agreement are (a) duly authorized, validly issued, fully paid
and non-assessable, and free and clear of any Encumbrances, and (b) were not
issued in transactions imposing any restrictions under applicable securities
laws on their subsequent transfer.
(v) Dominion Park has good and marketable title to the American
Eco Shares. On the date of execution hereof, Dominion Park will transfer to
Xxxxxxx Mercure (as escrow agent for the parties hereto) good and marketable
title to all of the American Eco Shares.
(vi) Neither Dominion Park nor its affiliates have taken, and
such parties will not take, directly or indirectly, any action designed to or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of the common stock of American Eco, and neither
Dominion Park nor its affiliates are aware of any such action taken or to be
taken by Dominion Park or any affiliate thereof.
(b) REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING AMERICAN
ECO. Dominion Park, Deere Park, Lamar and Riverwood hereby represent and
warrant to Wellgate, Marengere, Xxxxxxxxx and Xxxxx that, to the best of their
knowledge, all documents required to be filed by American Eco with the
Commission pursuant to the Act, at the time they were filed, did not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
It is understood that Dominion Park, Deere Park, Lamar and Riverwood are not
actively engaged in the management of the business of Eco and that the foregoing
representations are based solely on actual knowledge of Dominion Park, Deere
Park, Lamar and Riverwood regarding any matters not disclosed, or not accurately
disclosed in, such documents.
5. OTHER AGREEMENTS.
(a) CLOSING MEMORANDUM. On the date of execution hereof, the
parties hereto hereby agree to enter into those transactions and agreements
described in the Closing Memorandum.
(b) MUTUAL RELEASES/COVENANTS NOT TO XXX.
(i) Xxxxxxxx Xxxx, Xxxxx Xxxx, Xxxxx, Xxxxxxxxx and their
respective members, managers, shareholders, directors, officers and affiliates,
for themselves and their respective heirs, administrators, successors and
assigns, (collectively, the "DEERE PARK PARTIES"), hereby irrevocably and
unconditionally release and forever discharge each of Wellgate, Marengere,
Xxxxxxxxx and Xxxxx and their
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respective heirs, administrators, successors and assigns (collectively, the
"WELLGATE PARTIES") of and from any and all claims for, and agree not to file
any lawsuit or other legal action seeking to recover, any Losses (as
hereinafter defined) or Expenses (as hereinafter defined) relating to or
arising out of any matters existing or occurring prior to the date hereof;
provided, however, that the foregoing release shall in no event extend to any
claims (i) arising out matters pertaining to DBC to the extent such Claims
have not been released by DBC pursuant to those certain Settlement, Release
and Discharge Agreements dated of even date herewith entered into by
Marengere, Xxxxxxxxx and Xxxxx, respectively, with DBC, (ii) that may be
asserted by any of the Deere Park Parties under applicable antifraud laws,
including without limitation Sections 10b-5 and Section 18 of the Act or to
(iii) arising out of any obligations of the Wellgate Parties required to be
performed on or after the date hereof under this Agreement or any other
agreements or documents entered into by the Wellgate Parties as contemplated
by the Closing Memorandum.
(ii) The Wellgate Parties, for themselves and their respective
heirs, administrators, successors and assigns, hereby irrevocably and
unconditionally release and forever discharge each of the Deere Park Parties of
and from any and all claims for, and agree not to file any lawsuit or other
legal action seeking to recover, any Losses or Expenses relating to or arising
out of any matters existing or occurring prior to the date hereof; provided,
however, that the foregoing release shall in no event extend to any claims (i)
that may be asserted by any of the Wellgate Parties under applicable antifraud
laws, including without limitation Sections 10b-5 and Section 18 of the Exchange
Act or to (ii) arising out of any obligations of the Deere Park Parties required
to be performed on or after the date hereof under any this Agreement or any
other agreements or documents entered into by the Deere Park Parties as
contemplated by the Closing Memorandum.
(c) INDEMNIFICATION.
(i) The Wellgate Parties hereby jointly and severally agree
to indemnify and hold harmless each of the Deere Park Parties from and
against any and all Losses (as hereinafter defined) and Expenses (as
hereinafter defined) incurred or suffered by any of such parties in
connection with or arising from: (i) any breach by Wellgate, Marengere,
Xxxxxxxxx or Xxxxx or any of their representations, warranties or covenants
contained in Section 3(a) of this Agreement or in any of the other agreements
and documents contemplated by the Closing Memorandum; (ii) any Encumbrance on
the Management Option Shares previously contributed by Wellgate to Dominion
Park, the Wellgate DBC Shares transferred to Dominion Park pursuant to this
Agreement, or Wellgate's interest in Dominion Park; or (iii) any claim
brought by any interest holder in Wellgate or any other person or entity
arising from or relating to the contribution by Wellgate of the Management
Option Shares to Dominion Park, or the transfer of the Wellgate DBC Shares to
Dominion Park pursuant to this Agreement.
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(b) The Deere Park Parties hereby jointly and severally agree to
indemnify and hold harmless the Wellgate Parties from and against any and all
Losses (as hereinafter defined) and Expenses (as hereinafter defined)
incurred or suffered by any of such parties in connection with or arising
from: (i) any breach by the Deere Park Parties of any of their
representations, warranties or covenants contained in Section 4(a) of this
Agreement; or (ii) any Encumbrance on the American Eco Shares, other than
those restrictions contained in the Lock-Up and Escrow Agreement.
(d) As used herein:
(i) "LOSSES" shall mean any and all losses, costs,
obligations, liabilities, settlement payments, awards, judgments, fines,
policies, damages, expenses, deficiencies or other charges.
(ii) "EXPENSES" shall include all reasonable expenses
incurred by an indemnified party for court costs, legal fees, filing fees and
other professional fees.
6. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware, without regard to
conflict of law principles.
7. CAPTIONS. Captions to paragraphs herein are for purposes of
reference only and in no way shall limit, define or otherwise affect the
provisions hereof.
8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
9. ENTIRE AGREEMENT. This Agreement represents the final and complete
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings of the parties, oral or
written, with respect thereto. This Agreement may be amended only by written
agreement signed by each of the parties hereto.
10. ADDITIONAL ACTIONS. The parties hereto hereby agree to prepare, sign
and deliver, or cause to be prepared, signed or delivered, such other and
further instruments and documents, and to perform such other and further acts as
may be reasonably necessary to carry out the intent of this Agreement and
consummate the transactions described herein.
11. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors, permitted
assigns, heirs and legal representatives.
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12. ASSIGNMENT. This Agreement may not be assigned by any party without
the written consent of the other parties hereto.
13. INCORPORATION OF RECITALS; EXHIBITS AND SCHEDULES. The recitals set
forth on Page 1 hereof and the exhibits and schedules attached hereto are hereby
incorporated into this Agreement by this reference.
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IN WITNESS WHEREOF, this Agreement has been executed as of the first
written above.
DOMINION PARK, L.L.C. WELLGATE INTERNATIONAL, LTD.
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxxx Xxxxxxxxx
------------------------------ ---------------------------------
Xxxxxx X. Xxxxxxxxx, Manager
Its: Chairman & C.E.O.
---------------------------------
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxxxx, Manager /s/ Xxxxxx Xxxxxxxxx
--------------------------------------
XXXXXX X. XXXXXXXXX
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------
Xxxx X. Xxxxxxxxxx, as /s/ Xxxxxxx Xxxxxxxxx
Attorney-in-Fact for --------------------------------------
Xxxxxxx X. Xxxxxxx, Manager XXXXXXX X. XXXXXXXXX
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------
Xxxx X. Xxxxxxxxxx, as /s/ X. Xxxxx
Attorney-in-Fact for --------------------------------------
Xxxxxxx Xxxxxxx, Manager XXXX XXXXX
DEERE PARK EQUITIES, L.L.C., RIVERWOOD INVESTMENTS, L.L.C.,
an Illinois limited liability company a Delaware limited liability company
By: /s/ Xxxx X. Xxxxxxxxxx By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------- -----------------------------------
Xxxx X. Xxxxxxxxxx, as Xxxx X. Xxxxxxxxxx, as
Attorney-in-Fact for Attorney-in-Fact for
Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Manager
Manager
XXXXX INVESTMENTS, INC.
By /s/ Xxxx X. Xxxxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxxxx, as
Attorney-in-Fact for
Xxxxxxx Xxxxxxx,
President
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EXHIBIT A
LETTER AGREEMENT
----------------
Attached hereto is a true and correct copy of the Letter Agreement dated August
19, 1997, as amended, which governs Dominion Park, L.L.C.
EXHIBIT B
DOCUMENTATION REGARDING WELLGATE
--------------------------------
Attached hereto are true and correct copies of the Articles of Incorporation,
Bylaws, and a list of the current shareholders, directors and officers of
Wellgate.
EXHIBIT C
RELEASES AND DISCHARGES
-----------------------
Attached hereto are copies of the Releases and Discharges.
EXHIBIT D
---------
Attached hereto is a summary of all of DBC's unpaid tax and fiduciary
liabilities, and of all agreements DBC has reached regarding the payment of such
liabilities.
EXHIBIT E
---------
Attached hereto is a description of all material adverse changes affecting DBC
or its subsidiaries since the date of DBC's most recent Quarterly Report on Form
10-Q, and a description of all transactions undertaken by DBC or any such
subsidiary since such date outside the normal course of business.
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