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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made and entered into as of
the 23rd day of March, 2001 by and between Deere Park Capital, L.L.C. Inc., an
Illinois limited liability company ("Seller"), and Xxxxx X. Xxxxxxxx
("Xxxxxxxx").
R E C I T A L S:
A. Pursuant to that certain Stock Purchase Agreement dated December 21,
2000 between Xxxxxxxx and Seller, Seller granted Xxxxxxxx an option (the
"Option") to purchase 3,337,929 shares (the "Purchased Shares") of common stock
of US Industrial Services, Inc., a Delaware corporation ("USIS").
B. The parties hereto desire to terminate the Option, and Xxxxxxxx desires
to purchase from Seller, and Seller desires to sell to Xxxxxxxx, the Purchased
Shares, on the terms and subject to the conditions contained herein.
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:
A G R E E M E N T:
1. Option. The Option is hereby terminated, and is null and void and of
no further force and effect.
2. Acquisition of Purchased Shares. In consideration for payment of the
Purchase Price (as hereinafter defined), Xxxxxxxx hereby purchases from Seller,
and Seller hereby transfers and conveys to Xxxxxxxx, the Purchased Shares, free
and clear of all liens and encumbrances except (a) pursuant to the Hypothecation
Agreement (as such term is defined in Section 3 below), and (b) restrictions on
transfer imposed by applicable federal and state securities laws ("Securities
Laws").
3. Purchase Price. The purchase price for the Purchased Shares is
$1,150,000 (the "Purchase Price"). $800,000 of the Purchase Price shall be paid
in full by Xxxxxxxx in cash or immediately available funds upon execution of
this Agreement; the balance of the Purchase Price, $350,000, shall be payable
pursuant to that certain Secured Promissory Note (the "Note") attached hereto as
Exhibit A. The Note shall be secured pursuant to the Hypothecation Agreement
(the "Hypothecation Agreement") attached hereto as Exhibit B.
4. Representations, Warranties and Covenants of Seller. Seller hereby
represents, warrants and covenants to Xxxxxxxx as follows:
(a) Seller has full corporate power and authority to execute,
deliver and perform this Agreement.
(b) This Agreement has been duly executed and delivered by Seller and
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(c) constitutes the legal, valid and binding obligation of Seller
enforceable against it in accordance with its terms.
(c) Seller is the beneficial and record owner of the Purchased
Shares, and pursuant to this Agreement, Seller shall transfer to Xxxxxxxx
good and marketable title to the Purchased Shares free and clear of all
liens and encumbrances except (i) pursuant to the Hypothecation Agreement,
and (ii) restrictions on transfer imposed by Securities Laws. The delivery
to Xxxxxxxx of the stock certificate representing the Purchased Shares and
the payment of the Purchase Price will transfer to Xxxxxxxx record
ownership of and good and valid title to the Purchased Shares, free and
clear of all liens and encumbrances except (i) pursuant to the
Hypothecation Agreement, and (ii) restrictions on transfer imposed by
Securities Laws.
(d) Upon receipt by Seller of (i) $800,000 in cash or immediately
available funds, and (ii) duly executed original copies of the Note, the
Hypothecation Agreement and the collateral documents and instruments
associated therewith, Seller shall cause its designees, Xxxxx X. Xxxxxxx
and Xxxxx X. Xxxxx, to immediately resign from the board of directors of
USIS.
5. Representations, Warranties and Covenants of Xxxxxxxx. Xxxxxxxx
hereby represents, warrants and covenants to Seller as follows:
(a) Xxxxxxxx has full power and authority to execute, deliver and
perform this Agreement.
(b) This Agreement has been duly executed and delivered by Xxxxxxxx,
and constitutes the legal, valid and binding obligation of Xxxxxxxx
enforceable against him in accordance with its terms.
6. Regulatory Filings. Each party hereto shall be responsible for
preparation of any regulatory filings required in connection with the
transactions contemplated hereby, including, without limitation, filings with
the Securities and Exchange Commission.
7. Miscellaneous
(a) Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given,
delivered and received (a) when delivered, if delivered personally, (b)
four (4) days after mailing, when sent by registered or certified mail,
return receipt requested and postage prepaid, and (c) one (1) business day
after delivery to a private courier service, when delivered to a private
courier service providing documented overnight service, in each case
addressed as follows:
If to Xxxxxxxx:
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Xxxxx X. Xxxxxxxx
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
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If to Seller:
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Deere Park Capital, L.L.C.
00 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Chairman and CEO
Phone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address or addresses as may hereafter be specified
by notice given by either of the above to the other.
(b) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their successors and
assigns. Nothing in this Agreement, expressed or implied, is intended or
shall be construed to confer upon any person other than the parties hereto
and their successors and assigns any right, remedy or claim under or by
reason of this Agreement.
(c) Entire Agreement; Amendments. This Agreement contains the entire
understanding of the parties hereto with regard to the subject matter
contained herein, and supersedes all prior agreements, understandings or
letters of intent between the parties hereto. This Agreement shall not be
amended, modified or supplemented except by a written instrument signed by
an authorized representative of each of the parties hereto.
(d) Interpretation. Headings to sections herein are inserted for
convenience of reference only and are not intended to affect the
interpretation of this Agreement.
(e) Partial Invalidity. Wherever possible, each provision hereof
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such provision shall be ineffective to the
extent, but only to the extent, of such invalidity, illegality or
unenforceability without invalidating the remainder of such invalid,
illegal or unenforceable provision or provisions or any other provisions
hereof, unless such a construction would be unreasonable.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of Illinois. Any litigation between the parties
which arises out of this Agreement shall be instituted and prosecuted only
in the appropriate state or federal court or other tribunal situated in the
State of Illinois. Each party hereto hereby submits to the exclusive
jurisdiction of such courts and tribunals for purposes of any such action
and the enforcement of any judgment or order arising therefrom. Each party
hereto hereby waives any right to a change of venue and any and all
objections to the jurisdiction of the state and federal courts and other
tribunals located in the State of Illinois.
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(g) Incorporation of Recitals. The recitals set forth on page 1
hereof are hereby incorporated into this Agreement as if fully re-written.
(h) Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be considered an original instrument, but
both of which together shall be considered one and the same agreement, and
shall become binding when both counterparts have been signed by each of the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
DEERE PARK CAPITAL, L.L.C.
By:
---------------------------------
Its:
--------------------------------
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Xxxxx X. Xxxxxxxx
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EXHIBIT A
SECURED PROMISSORY NOTE
$350,000.00 Dated: As of March 5, 2001
FOR VALUE RECEIVED, the undersigned, XXXXX X. XXXXXXXX, an individual
residing at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000 ("Borrower"),
promises to pay to the order of DEERE PARK CAPITAL, L.L.C., an Illinois limited
liability company ("Lender"), at its main business office (or such other place
as Lender may designate from time to time hereafter), the principal sum of Three
Hundred Fifty Thousand Dollars ($350,000.00), with interest thereon at the rate
hereinafter set forth. Such sum shall be due and payable in one installment on
June 21, 2001.
All payments received hereunder shall be first applied to interest and the
balance, if any, to principal and other amounts outstanding hereunder.
Borrower's obligations under this Secured Convertible Promissory Note ("Note")
shall be referred to herein as "Borrower's Liabilities."
Borrower may prepay all or part of the principal, together with accrued
interest on the amount so prepaid, without penalty during the term of this Note.
Time is of the essence of this Note and each of the provisions hereof.
Borrower's Liabilities unpaid from time to time shall bear interest
(computed on the basis of a 360 day year and actual days elapsed) from the date
hereof until paid at a per annum rate at all times equal to nine percent (9.0%).
Interest accruing hereunder shall be payable by Borrower to Lender at the
maturity of this Note at the place stated above (or such other place as Lender
may designate from time to time hereafter). All unpaid interest at the maturity
hereof shall be paid with the principal amount of Borrower's Liabilities due at
maturity.
Borrower's Liabilities are secured pursuant to that certain Hypothecation
Agreement dated of even date between Borrower and Lender (the "Hypothecation
Agreement"). Pursuant to the Hypothecation Agreement, Borrower shall pledge
500,000 shares of common stock of U.S. Industrial Services, Inc., a Delaware
Corporation ("USIS"), to Borrower to secure his obligations hereunder (the
"Pledged Shares").
Notwithstanding anything to the contrary contained herein, upon an Event
of Default (as hereinafter defined), Lender's sole recourse shall be to
foreclose on the Pledged Shares, and Lender shall have no recourse against
Borrower.
The occurrence of any one of the following events shall constitute a
default by the Borrower ("Event of Default") under this Note: (a) if Borrower
fails to pay any of Borrower's Liabilities on the date same is due and payable
or declared due and payable (whether by scheduled maturity, required payment,
acceleration, demand or otherwise); (b) if Borrower or any guarantor of any of
Borrower's Liabilities fails or neglects to perform, keep or observe any term,
provision, condition, covenant, warranty or representation contained in this
Note; (c) occurrence of a default or event of default under any agreement,
instrument or document heretofore, now or at any time hereafter delivered by or
on behalf of Borrower to Lender; (d) occurrence of a default or an event of
default under any agreement, instrument or document heretofore, now or at any
time hereafter
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delivered to Lender by any guarantor of Borrower's Liabilities or by any person
or entity which has granted to Lender a security interest or lien in and to some
or all of such person's or entity's real or personal property to secure the
payment of Borrower's Liabilities; (e) Borrower's assets are attached, seized,
subjected to a writ, or are levied upon or become subject to any lien or come
within the possession of any receiver, trustee, custodian or assignee for the
benefit of creditors; (f) if a notice of lien, levy or assessment is filed of
record or given to Borrower with respect to all or any of Borrower's assets by
any federal, state or local department or agency; (g) if Borrower or any
guarantor of Borrower's Liabilities becomes insolvent or generally fails to pay
or admits in writing its inability to pay debts as they become due, if a
bankruptcy petition or similar filing is filed by or against Borrower or any
such guarantor; (h) the death or incompetency of any guarantor of Borrower's
Liabilities, or the appointment of a conservator for all or any portion of
Borrower's assets or the Collateral (as such term is defined in the Pledge
Agreement); (i) the revocation, termination or cancellation of any guaranty of
Borrower's Liabilities without written consent of Lender; (j) if Borrower or any
guarantor of Borrower's Liabilities is in default in the payment of obligations,
indebtedness or other liabilities to any third party which individually or in
the aggregate involves more than $100,000, and such default is declared and is
not cured within the time, if any, specified therefor in any agreement governing
the same; or (k) if any material statement, report or certificate made or
delivered by Borrower, to Lender is not true and correct.
Upon the occurrence of an Event of Default, at Lender's option, without
notice by Lender to or demand by Lender of Borrower, all of Borrower's
Liabilities shall be immediately due and payable.
All of Lender's rights and remedies under this Note and the Hypothecation
Agreement are cumulative and non-exclusive.
Commencing upon the occurrence of an Event of Default, interest on the
unpaid principal balance shall accrue at a rate equal to the lesser of (i)
fourteen percent (14%) per annum, or (ii) the highest rate permitted under
applicable law.
If any payment becomes due and payable on a Saturday, Sunday or legal
holiday under the laws of the State of Illinois, the due date of such payment
shall be extended to the next business day. If the date for payment of principal
is thereby extended by operation of law or otherwise, interest thereon shall be
payable for such extended time.
The acceptance by Lender of any partial payment made hereunder after the
time when any of Borrower's Liabilities become due and payable will not
establish a custom, or waive any rights of Lender to enforce prompt payment
thereof. Lender's failure to require strict performance by Borrower of any
provision of this Note or any related document shall not waive, affect or
diminish any right of Lender thereafter to demand strict compliance and
performance therewith. Any waiver of an Event of Default shall not suspend,
waive or affect any other Event of Default. Borrower and every endorser waive
presentment, demand and protest and notice of presentment, protest, default,
non-payment, maturity, release, compromise, settlement, extension or renewal of
this Note, and hereby ratify and confirm whatever Lender may do in this regard.
Borrower further waives any and all notice or demand to which Borrower might be
entitled with respect to this Note by virtue of any applicable statute or law
(to the extent permitted by law).
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In addition to principal and interest, Lender shall be entitled to collect
all costs, including, but not limited to, all costs of collection and reasonable
attorneys' fees incurred in connection with the protection or realization of
collateral or in connection with any of Lender's collection or enforcement
efforts, whether or not suit on this Note or any related document is filed, and
all such costs and expenses shall be payable on demand. To the extent not paid,
the same shall become part of Borrower's Liabilities.
If any provision of this Note or the application thereof to any party or
circumstance is held invalid or unenforceable, the remainder of this Note and
the application thereof to other parties or circumstances will not be affected
thereby, the provisions of this Note being severable in any such instance.
This Note shall be governed and controlled by the laws of the State of
Illinois as to interpretation, enforcement, validity, construction, effect,
choice of law and in all other respects.
No modification, waiver, estoppel, amendment, discharge or change of this
Note or any related instrument shall be valid unless the same is in writing and
signed by the party against which the enforcement of such modification, waiver,
estoppel, amendment, discharge or change is sought.
This Note shall be binding upon Borrower and its successors and permitted
assigns and inure to the benefit of Lender and its successors and
assigns.
TO INDUCE LENDER TO ACCEPT THIS NOTE, BORROWER IRREVOCABLY AGREES THAT,
SUBJECT TO LENDER'S SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS IN
ANY WAY, MANNER OR RESPECT, ARISING OUT OF OR FROM OR RELATED TO THIS NOTE AND
ANY DOCUMENT RELATED THERETO IN ANY STATE OR FEDERAL COURT LOCATED IN XXXX
COUNTY, ILLINOIS. BORROWER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF
ANY SUCH COURT AND HEREBY WAIVES ANY OBJECTION IT MAY HAVE BASED ON IMPROPER
VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING BROUGHT AGAINST
BORROWER BY LENDER IN ACCORDANCE WITH THIS PARAGRAPH.
BORROWER:
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Xxxxx X. Xxxxxxxx
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EXHIBIT B
HYPOTHECATION AGREEMENT
THIS HYPOTHECATION AGREEMENT ("Agreement") is made and entered into as of
the 23rd of March, 2001 by and between Deere Park Capital, L.L.C., an Illinois
limited liability company ("Seller"), Xxxxx X. Xxxxxxxx ("Buyer"), and US
Industrial Services, Inc., a Delaware corporation ("USIS").
W I T N E S S E T H
WHEREAS, pursuant to that certain Stock Purchase Agreement between Buyer
and Seller dated of even date herewith (the "Purchase Agreement"), Buyer
acquired from Seller 3,337,929 shares of common stock of USIS; and
WHEREAS, pursuant to the Purchase Agreement, Buyer is to deliver a Secured
Promissory Note to Deere Park in the principal amount of $350,000 Dollars (the
"Note"), and in order to induce Seller to accept the Note as partial payment for
the shares of USIS sold under the Purchase Agreement, Buyer has agreed to pledge
500,000 shares of USIS stock acquired pursuant to the Purchase Agreement to
Seller as security for repayment of the Note (the "Pledged Shares").
NOW, THEREFORE, pursuant to the aforesaid Note, and for other good and
valuable consideration, Buyer does hereby agree as follows:
1. PLEDGE. Buyer hereby grants and pledges all of the Pledged Shares to
Seller. The parties agree that Seller shall hold the Pledged Shares and any
proceeds thereof as security for Buyer's timely performance of all of Buyer's
obligations pursuant to the Note. Attached hereto as Schedule I is an original
stock power duly executed by Buyer, with an appropriate medallion signature
guarantee, to be retained by Seller along with the Pledged Shares.
2. PROCEEDS OF PLEDGED SHARES ALSO COVERED. The Seller's security
interest in the Pledged Shares shall cover the proceeds of such shares
including, but not limited to, any proceeds resulting from the conversion of the
Pledged Shares as a result of the merger of USIS into any other entity.
3. REPRESENTATIONS. Buyer warrants and represents to Seller that there
are no restrictions upon the transfer of any of the Pledged Shares, and further
represents to Seller that Buyer's title to said shares is as good as the title
that Buyer received from Seller, and that Buyer has the right to transfer and
pledge such shares free of any encumbrances and without obtaining the consent of
any other party.
4. ADJUSTMENTS. In the event that, during the term of this Agreement, any
stock dividend, reclassification, readjustment, issuance of additional shares,
or other change is declared or made in the capital structure of USIS, all new,
substituted, and additional shares, or other securities, issued by reason of any
such change shall be held by Seller under the terms of this Agreement in the
same manner as the shares originally pledged hereunder and in the event USIS
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shall merge with and into any other corporation any proceeds resulting from the
conversion of the Pledged Shares as a result of such merger shall be held by
Seller under the terms of this Agreement in the same manner as the shares
originally pledged hereunder.
5. WARRANTS AND RIGHTS. Buyer hereby agrees that during the term of this
Agreement, no subscription warrants or any other rights or options shall be
issued in connection with the Pledged Shares.
6. PAYMENT OF NOTE. Upon payment of all amounts due under the Note,
Seller shall release all of Seller's interest in and to the Pledged Shares and
any proceeds therefrom to Buyer.
7. DEFAULT.
(a) In the event that Buyer defaults in the performance of any of the
terms of either this Agreement (and such default remains uncured for a period of
fifteen (15) days following written notice of the default by Seller to Buyer) or
of any of the provisions of the Note (and such default is not cured in
accordance with the provisions of the Note), Seller shall have the rights and
remedies set forth in the Note, and in addition, the rights and remedies
provided in the Uniform Commercial Code in force in the State of Illinois at the
date of this Agreement
(b) For so long as Buyer is not in default under either of the Note or
this Agreement, Buyer may vote and participate in the affairs of USIS or its
successor to the same extent as USIS's other shareholders. In the event of a
default under either the Note or this Agreement, Seller shall be entitled to
exercise such rights in place of Buyer.
8. WAIVER, SUCCESSOR AND ASSIGNS. Buyer further agrees that Buyer's
liability with respect to the Pledged Shares shall be unconditional without
regard to the liability of any other party and shall not in any manner be
affected by an indulgence, extension of time, renewal, waiver or modification
granted or consented to by Seller. Buyer hereby consents to any and all
extensions of time, renewals, waivers, or modifications that may be granted by
Seller with respect to the payment or other provisions of the Note, and to the
release of collateral, or any part thereof, with or without substitution, and
agrees that additional parties may become parties hereto without notice to them
or affecting their liability hereunder. Buyer further waives the benefit or
right to assert any statute of limitations affecting Buyer's liability hereunder
or under the Note. Waiver of any default hereunder shall not constitute waiver
of any subsequent default. All rights of Seller shall inure to the benefit of
Seller's successors and assigns and all obligations of Buyer shall bind its
personal representatives, successors and assigns.
9. COMPLIANCE BY USIS. USIS acknowledges and agrees to the terms and
conditions of this Agreement and further agrees to effectuate the terms and
conditions of this Agreement and all matters in connection with the Pledged
Shares including, but not limited to, the transfer of shares in accordance with
the terms hereof.
10. CONSENT TO HYPOTHECATE. USIS, Seller and Buyer hereby consent to the
pledge of the Pledged Shares by Buyer as required pursuant to the Note.
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11. INTERPRETATION. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
12. NOTICE. Any notice which any party hereto may be required or may
desire to give hereunder shall be deemed to have been properly delivered if
delivered by hand to the party to whose attention it is directed, or if sent by
certified or registered mail, return receipt requested to the party's last known
place of residence as reflected on the other parties' records or to its
principal place of business in the State of Illinois.
13. GOVERNING LAW. This Agreement shall be deemed to be made under and
shall be governed by the laws of the State of Illinois in all respects,
including matters of construction, validity and performance. Any litigation
between the parties which arises out of this Agreement shall be instituted and
prosecuted only in the appropriate state or federal court or other tribunal
situated in the State of Illinois. Each party hereto hereby submits to the
exclusive jurisdiction of such courts and tribunals for purposes of any such
action and the enforcement of any judgment or order arising there from. Each
party hereto hereby waives any right to a change of venue and any and all
objections to the jurisdiction of the state and federal courts and other
tribunals located in the State of Illinois.
IN WITNESS WHEREOF, Buyer, Seller, and USIS have executed this Agreement
on the day and year first above written.
DEERE PARK CAPITAL, L.L.C. U.S. INDUSTRIAL SERVICES, INC.
By By:
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Its: Its:
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Xxxxx X. Xxxxxxxx
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Schedule I
STOCK POWER
Attached hereto is an original, duly executed stock power with an
appropriate medallion signature guarantee signed by Xxxxx X. Xxxxxxxx with
respect to the Pledged Shares.
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IRREVOCABLE STOCK OR BOND POWER
FOR VALUE RECEIVED, the undersigned does (do) hereby sell, assign and
transfer to
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{ ________ shares of the ________ stock of _______________
IF STOCK, ____ represented by Certificate(s) No(s).________________
COMPLETE inclusive, standing in the name of the undersigned on the
THIS PORTION books of said company.
{ ____________________ bonds of _________________________
IF BONDS, in the principal amount of $__________. No(s) _____________
COMPLETE inclusive, standing in the name of the undersigned on the
THIS PORTION books of said Company.
The undersigned does (do), hereby, irrevocably constitute
and appoint ____________________ attorney to transfer the
said stock or bond(s), as the case may be, on the books of
said Company, with full power of substitution in the
premises.
Date
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IMPORTANT-READ CAREFULLY Sign Here
The signature(s) to this Power must -----------------------
correspond with the name(s) as written
upon the face of the certificate(s) or Representative
bond(s) in every particular without
alteration or enlargement or any change
whatever. Signature should be made by
a member or member organization of the -----------------------------------
New York Stock Exchange, members of
other Exchanges having signatures on -----------------------------------
file with transfer agent or by a
commercial bank or trust company. SIGNATURE GUARANTEED
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