EXHIBIT 10.5
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THIS ACQUISITION AGREEMENT made as of the 31st day of May, 1996.
B E T W E E N:
UNITED ECO SYSTEMS, INC.
a corporation amalgamated pursuant to the laws of the State of Delaware
("UESI")
OF THE FIRST PART
- and -
AMERICAN ECO CORPORATION
a corporation amalgamated pursuant to the laws of the Province of Ontario
("ECO")
OF THE SECOND PART
WHEREAS UESI is the owner of all of the issued and outstanding shares of
ESI (as hereinafter defined); and
WHEREAS Seller seeks to sell all of the issued and outstanding Shares of
UESI to ECO and ECO seeks to purchase the Shares from Seller, all on and
subject to the terms and conditions of this Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mural
covenants, agreements and premises herein contained and other good and
valuable consideration (the receipt and self-sufficiency whereof being
hereby acknowledged by each party), the parties hereto do hereby covenant
and agree as follows:
1. DEFINITIONS AND SCHEDULES
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1.1 Definitions. In this Agreement:
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"Accounts Receivable" means all accounts receivable and other book
debts due or accruing to the Target Company as at the Reference Date and
the full benefit of all security, if any, for such accounts or debts.
"Affiliate" has the meaning ascribed thereto in the OBCA.
"Agreement", "this Agreement", "hereto" and "herein" means this
Agreement and all schedules attached hereto, as may be amended from time to
time.
"Associate" has the meaning ascribed thereto in the OBCA.
"Best Knowledge" means such knowledge as the Party would have after
due inquiry of the matter in question.
"Business Day" means a day other than a Saturday or a Sunday or any
other day which is a statutory holiday in the Province of Ontario.
"Closing" means the consummation of the Transaction as herein
contemplated.
"Closing Date" means May 31, 1996 or such earlier or later date as may
be agreed to in writing by the Parties.
"Contract" means any agreement, indenture, contract, bond, debenture,
security agreement, lease, deed of trust, license, option, instrument or
other legally binding commitment, whether written or oral.
"Direct Claim" has the meaning ascribed thereto in subsection 6.3.
"ECO" means American ECO Corporation, an Ontario corporation.
"ESI" means Eco Systems, Inc., a Delaware corporation.
"Encumbrances" means any and all claims, liens, security interests,
mortgages, pledges, pre-emptive rights, charges, options, equity interests,
encumbrances, proxies, voting agreements, voting trusts, leases, tenancies,
easements or other interests of any nature or kind whatsoever, howsoever
created.
"Indemnified Party" has the meaning ascribed thereto in section 6.3.
"Indemnifying Party" has the meaning ascribed thereto in section 6.3.
"Indemnification Claim" has the meaning ascribed thereto in section
6.3.
"Intellectual Property" means all patents, copyrights, trademarks and
trade names, service marks and all software, data bases, trade secrets,
know how and other proprietary rights as at the Reference Date.
"Losses" means any and all claims, demands, debts, suits, actions,
obligations, proceedings, losses, damages, liabilities, deficiencies, costs
and expenses (including without limitation, all reasonable legal and other
professional fees and disbursements, interest, penalties and amounts paid
in settlement).
"Material Adverse Effect" means a material adverse effect on the
business, assets, liabilities, condition (financial or otherwise),
operations or prospects of the Party in question or upon such Party's
ability to perform its obligations under this Agreement or to consummate
the Transaction.
"NASDAQ" means the National Association of Securities Dealers
Automated Quotations.
"OBCA" means the Business Corporations Act, Ontario.
"Parties" means collectively, the parties to this Agreement.
"Person" means any individual, Company, company, corporation,
unincorporated association, joint venture, trust, the Crown or any other
agency or instrumentality thereof or any other judicial entity or person
government or governmental agency, authority or entity howsoever designated
or constituted.
"Reference Date" means June 10, 1996.
"Subsidiary" has the meaning ascribed thereto in the OBCA.
"Survival Period" has the meaning ascribed thereto in section 5.1
"Target" means ESI.
"Target Company" means ESI.
"Target Company Contracts" has the meaning ascribed thereto in section
4.1(aa).
"Company Shares" means all of the issued and outstanding Common Stock
par value of $0.01 per share of UESI held of record by Seller.
"Target Company Financial Statements" has the meaning attributed
thereto in section 4.1(p).
"Taxes" means all income, profits, franchise, royalty, withholding,
payroll, excise, sales, value added, use, occupation and property taxes and
any liability, whether disputed or not, imposed by the U.S. or any state,
municipality, country or foreign government or subdivision or agency
thereof.
"Third Party" has the meaning ascribed thereto in section 6.3.
"Third Party Claim" has the meaning ascribed thereto in section 6.3.
"Transaction" means the transfer of the Target Company Shares in
exchange for cash, as contemplated by this Agreement.
"TSE" means The Toronto Stock Exchange.
"UESI" means United Eco Systems, Inc.
1.2 Disclosure. Any fact or circumstance or combination of facts and/or
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circumstances disclosed in this Agreement or in any schedules hereto shall
be deemed to be disclosed for all purposes of this Agreement.
1.3 Act. Any reference in this Agreement to any act, by-law, rule or
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regulation or to a provision thereof shall be deemed to include a reference
to any act, by-law, rule or regulation or provision enacted in substitution
or amendment thereof.
1.4 Central Daylight Time. Except where otherwise expressly provided in
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this Agreement any reference to time shall be deemed to be a reference to
Central Daylight Time.
1.5 Gender and Extended Meanings. In this Agreement words and personal
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pronouns relating thereto shall be read and construed as the number and
genda of the party or parties referred to in each case require and the
verb shall be construed as agreeing with the required word and pronoun.
For greater certainty and without limitation, in this Agreement the word
"shall" has the same meaning as the word "will".
1.6 U.S. Dollars and Payment. All dollar amounts referred to in this
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Agreement are in U.S. funds, unless otherwise expressly specified.
1.7 Section Headings. The division of this Agreement into sections is for
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convenience of reference only and shall not effect the interpretation or
construction of this Agreement.
1.8 Business Day. In the event that the date for the taking of any action
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under this Agreement falls on a day which is not a Business Day, then such
action shall be taken on the next following Business Day.
2. AGREEMENT TO EXCHANGE
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2.1 Transfer. Subject to the terms and conditions hereof, on the Closing
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Date at the Time of Closing, Seller shall transfer to ECO and ECO shall
accept from Seller the Company Shares and Seller shall deliver to ECO
certificates representing its Shares duly endorsed in blank for transfer
together with new certificates therefor.
2.2 Purchase Price. The purchase price for the UESI Shares shall equal
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the sum of $2,520,000 satisfied by ECO by the issuance to UESI of 315,000
fully paid and non-assessable common shares in the capital of ECO issued at
$8.00 per share. In addition, simultaneous with the execution hereof, ECO
shall enter into an Employment Agreement with Xxxxxxx X. X'Xxxxxx,
President of UESI.
2.3 Closing. Closing shall occur at the Time of Closing on the Closing
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Date at the offices of UESI or at such other place or other time and date
as the Parties may agree.
3. COVENANTS, REPRESENTATIONS AND WARRANTIES OF ECO
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3.1 Covenants, Representations and Warranties. ECO hereby covenants,
represents and warrants to Seller and UESI as follows and acknowledges and
confirms that they are relying upon such covenants, representations and
warranties in connection with the Transaction and that unless otherwise
indicated herein, such covenants, representations and warranties shall be
true and correct as at the Closing Date:
(a) Organization. ECO is duly incorporated and validly subsisting
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under the laws of the Province of Ontario and has the corporate power to
own or lease its property and to carry on its business as it is now being
conducted and subject to receipt of requisite regulatory approval including
approval from the TSE and NASDAQ with respect to the Transaction, on the
Closing Date, ECO will have the corporate power to execute, deliver and
perform its obligations under this Agreement. ECO is duly qualified to do
business in those jurisdictions wherein the failure to so qualify could
have a Material Adverse Effect on ECO.
(b) Corporate Authority. Subject to receipt of requisite regulatory
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approval including approval from the TSE and NASDAQ with respect to the
Transaction, on the Closing Date ECO will have taken all requisite
corporate action to authorize the valid execution, delivery and performance
of this Agreement and the consummation of the Transaction.
(c) Agreement Enforceable. Subject to receipt of requisite
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regulatory approval including approval from the TSE and NASDAQ with respect
to the Transaction, this Agreement constitutes a valid and legally binding
obligation of ECO enforceable against ECO in accordance with its terms.
(d) Securities Laws Matters. The common shares of ECO are listed and
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posted for trading on the TSE and on NASDAQ. ECO is in compliance in all
material respects with all applicable requirements of the TSE and NASDAQ
concerning maintenance of such listing and has received no notification nor
has any reasonable basis to believe that such listing may or will be
terminated. ECO is a "reporting issuer" under the Securities Act, Ontario
and the Securities Act, Quebec and is not in material default of any of its
requirements under any such legislation, regulations or published policies
thereunder.
(e) No Violations. Subject to receipt of requisite regulatory
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approval including approval from the TSE and NASDAQ with respect to the
Transaction, the execution and delivery of this Agreement and all other
agreements contemplated herein by ECO and the observance and performance of
the terms and provisions of this Agreement and any such agreements: (i)
does not and will not require ECO to obtain or make any consent,
authorization, approval, filing or registration under any law, by-law,
rule, regulation, judgment, order, writ, injunction or decree which is
binding upon ECO; (ii) does not and will not constitute a violation or
breach of the charter documents or by-laws of ECO; (iii) does not and will
not constitute a violation or breach of applicable law, any material
provision of any Contract to which ECO is a party or by which ECO is bound
or any law, by-law, rule, regulation, judgment, order, writ, injunction or
decree applicable to ECO; and (iv) does not and will not constitute a
material default (nor would with the passage of time or the giving of
notice or both or otherwise, constitute a material default) under any
Contract, to which ECO is a party or by which ECO is bound.
(f) Brokers. ECO shall be responsible for the payment of all
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brokerage commissions, and finder's fees or other like payment incurred by
ECO in connection with this transaction, including a $400,000.00 finder's
fee payable by ECO on Closing to Network Capital Management Group, Inc. and
ECO will indemnify and save harmless UESI of and from any such claims.
(g) ECO will be responsible for the assumption of ESI's liabilities,
covenants and obligations as more particularly set forth in a certain Asset
Purchase Agreement between ESI and ENSCI Corporation, (including the
assumption of all of ESI's liabilities and obligations to Branch Banking &
Trust Company) attached hereto as Exhibit "A" and made a part hereof, and
the release of WND's obligations to ESI, plus ten ($10.00) Dollars.
4. COVENANTS, REPRESENTATIONS AND WARRANTIES OF SELLER AND UESI
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4.1 Covenants, Representations and Warranties. Seller and UESI hereby
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covenant, represent and warrants to ECO as follows and acknowledges and
confirms that ECO is relying upon such covenants, representations and
warranties in connection with the Transaction and that unless otherwise
indicated herein, such covenants, representations and warranties shall be
true and correct as at the Closing Date:
(a) Legal Capacity. UESI has the legal capacity and competence to
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execute, deliver and perform its obligations under this Agreement.
(b) Organization. Each of UESI and the Target Company is duly
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incorporated and validly subsisting under the laws of its jurisdiction of
incorporation and has the corporate power to own or lease its property and
to carry on its business as it is now being conducted and has the corporate
power to execute, deliver and perform its obligations under this Agreement.
The Target Company is duly qualified to do business in those jurisdictions
wherein the failure to so qualify could have a Material Adverse Effect on
the Target Company, being the State of North Carolina and the Commonwealth
of Virginia.
(c) Corporate Authority. UESI has taken all requisite corporate
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action to authorize the valid execution, delivery and performance of this
Agreement and the consummation of the Transaction.
(d) No Violations. The execution and delivery of this Agreement and
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all other agreements contemplated herein by UESI and the Target and the
observance and performance of the terms and provisions of this Agreement
and any such agreements: (i) does not and will not require UESI or the
Target to obtain or make any consent, authorization, approval, filing or
registration under any law, by-law, rule, regulation, judgment, order,
writ, injunction or decree which is binding upon UESI or the Target; (ii)
does not and will not constitute a violation or breach of the charter
documents or by-laws of UESI or the Target; (iii) does not and will not
constitute a violation or breach of applicable law, any material provision
of any Contract to which UESI or the Target is a party or by which UESI or
the Target is bound or any law, by-law, rule, regulation, judgment, order,
writ, injunction or decree applicable to UESI or the Target; (iv) does not
and will not constitute a default or require a consent or approval (nor
would with the passage of time or the giving of notice or both or
otherwise, constitute a default) under any Contract, to which UESI or the
Target is a party or by which UESI or the Target is bound; and (v) does not
and will not result in the creation or imposition of any Encumbrance on the
Target Shares or any property or assets of UESI or the Target.
(e) Issued Shares. The Company Shares comprise all of the issued and
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outstanding shares of ESI. All of the Company Shares, have been duly
authorized, created and issued as fully paid and non-assessable shares.
There are outstanding no other shares, warrants, rights or securities
convertible into shares or any other evidence whatsoever of an interest in
the Target Company or UESI.
(f) Owner of the Target Company Shares. UESI is the owner
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beneficially and of record of the Target Company Shares and has good and
marketable title thereto, free and clear of any Encumbrances and/or
pre-emptive rights.
(g) Subsidiaries. Except as disclosed on Exhibit "A", the Target
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Company has no Subsidiaries and owns no shares of any other corporation or
entity nor any rights, warrants or other securities convertible into shares
of any other corporation or entity. The Target Company is not bound by or a
party to any Contract which contemplates its amalgamation, merger,
consolidation or other acquisition with or by any other entity.
(h) Acts of Bankruptcy. Neither UESI nor the Target Company is
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insolvent, has proposed a compromise or arrangement to its or their
creditors generally, has taken any proceeding with respect to a compromise
or arrangement, has taken any proceeding to have itself declared bankrupt
or wound-up, has taken any proceeding to have a receiver appointed of any
part of their assets and at present, no encumbrancer or receiver has taken
possession of any of their property and no execution or distress is
enforceable or levied upon any of its property and no petition for a
receiving order in bankruptcy is filed against them.
(i) Private Company. UESI and the Target Company do not distribute
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their securities to the public.
(j) Resident. UESI and the Target Company are residents of the
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United States.
(k) Actions - Company Shares. There is not pending or, to the Best
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Knowledge of Seller or UESI, threatened or contemplated, any suit, action,
legal proceeding, litigation or governmental investigation of any sort
which would: (i) in any manner restrain or prevent Seller or UESI from
effectually and legally transferring the Shares of UESI to ECO in
accordance with this Agreement; (ii) cause an Encumbrance to attach to the
UESI Shares; (iii) divest title to the UESI Shares in any manner
whatsoever; or (iv) make ECO liable for damages in connection with the
Transaction.
(l) Litigation. Except as disclosed on Schedule 4.1 and Exhibit "A"
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there is not pending, or, to the Best Knowledge of Seller or of UESI,
threatened or contemplated any suit, action, legal proceeding, litigation
or governmental investigation of any sort relating to UESI, the Target or
the Transaction nor is there any present state of facts or circumstances
which can be reasonably anticipated to be a basis for any such suit,
action, legal proceeding, litigation or governmental investigation nor is
there presently outstanding against Seller or UESI or the Target any
judgment, decree, injunction, rule or order of any court, governmental
department, commission, agency, instrumentality or arbitrator.
(m) Minute Books. The minute books of UESI contain accurate and
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complete copies of their incorporating documents together with minutes of
all meetings of directors, committees and shareholders of UESI. All of the
articles and the by-laws of UESI have been reviewed and received by ECO.
There are outstanding no applications or filings which would alter in any
way the constating documents or corporate status of UESI. No resolutions
or by-laws have been passed, enacted, consented to or adopted by the
directors or shareholders of UESI except as are contained in the minute
books of UESI. The directors and officers of UESI are as set forth in the
corporate minutes.
(n) Books of Account. The books of account and financial records of
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UESI and the Target fairly set out and disclose in all material respects,
the current financial position of the Companies. All material transactions
involving both Companies have been accurately recorded in such books and
records. All bonuses, commissions and other payments relating to the
employees of UESI reflected in the books of UESI in a manner consistent
with past record keeping practices and are further described in Schedule
4.l(y)11.
(o) Permits and Licenses. UESI and the Target have all necessary
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permits, certificates, licenses, approvals, consents and other
authorizations required to carry on and conduct business and to own, lease
operate its assets at the places and in the manner in which such business
is conducted. Exhibit "A" contains a full, complete and accurate list of
such permits, certificates, licenses, approvals, consents and other
authorizations.
(p) Financial Statements. A true copy of the financial statements of
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the Target and the statements of operations (the "Target Company Financial
Statements") of the Target as of , 1996 is annexed hereto as
Schedule 4.1(p). The Target Company Financial Statements: (1) Have been
prepared in accordance with U.S. generally accepted accounting principles
applied on a basis consistent with those of the preceding fiscal period.
(2) Present fairly the assets, liabilities and financial position of the
Target as of 1996, and the results of operations for the period
then ended. Other than the liabilities specified in the balance sheet
forming part of the Target Company Financial Statements or incurred since
the Reference Date in the ordinary course of business (all of which is
consistent with past practice) or otherwise noted or disclosed in this
Agreement there are no known liabilities or obligations of the Target
(whether absolute, contingent or otherwise) including without limitation,
any Tax liabilities due or to become due or contingent losses for
unasserted claims which are capable of assertion. (3) Are substantially in
accordance with the books and records of the Target. (4) Contain and
reflect all necessary adjustments for a fair presentation of the results of
operations and financial position of the Target for the period covered
thereby. (5) Contain and reflect adequate provision or allowance for all
reasonably anticipated liabilities, expenses and losses of the Target.
(6) Financial Statements of UESI have not been prepared as of the date of
this Agreement.
(q) Guarantees. UESI does not have any outstanding guarantees or has
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any outstanding security for and liability, debt or obligation of any
Person, except as set forth in the Schedules and Exhibits.
(r) Bonds or Debentures. UESI does not have any outstanding bonds,
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debentures or other indebtedness nor is it under any agreement to create or
issue any bonds, debentures or other indebtedness.
(s) No Further Expenditures. No capital expenditures or leasehold
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improvements have been made by the Target since the date of the Target
Company Financial Statements, other than in the ordinary course of
business.
(t) Related Parties. Since the Reference Date, UESI and the Target
have not made any payment or loan to or borrowed any moneys from and are
not otherwise indebted to, any officer, director, employee, shareholder or
any other Person not dealing at arm's length with UESI or the Target. UESI
and the Target are not a party to any Contract with any officer, director,
employee, shareholder or any other Person not dealing at arm's length, with
UESI or the Target. No officer, director or shareholder of UESI or the
Target and no entity that is an Affiliate or Associate of one or more of
such individuals:
(1) Owns, directly or indirectly, any interest in (except for shares
representing less than 2% the outstanding shares of any class of
securities of any publicly traded company) or is an officer,
director, employee or consultant of, any Person which is or is
engaged in business as a competitor of UESI or the Target or a
lessor, lessee, client or supplier of UESI or the Target.
(2) Owns, directly or indirectly, in whole or in part, any property
that UESI or the Target uses in the operation of business.
(3) Has any cause of action or any other claims whatsoever against or
owes any amount to UESI or the Target.
(u) Dividends or Distributions. No dividends or other distributions
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on any of the shares in the capital of UESI or the Target Company have been
authorized, declared or paid since the date of the respective Target
Company Financial Statements and there has not been any direct or indirect
redemption, purchase or acquisition of any such shares.
(v) No Changes. Since the Financial Statement, UESI and the Target
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have carried on business and conducted their operations and affairs only in
the ordinary and normal course consistent with past practice and there has
not been:
(1) Any material adverse change in the condition (financial or
otherwise), assets, liabilities, operations, earnings, business
or prospects of UESI or the Target.
(2) Any damage, destruction or loss (whether or not covered by
insurance) affecting the property or assets of UESI or the Target
or any failure to regularly maintain and repair such property and
assets in the ordinary course of business.
(3) Any payment, discharge or satisfaction of any Encumbrance,
liability or obligation of UESI or the Target Company (whether
absolute, accrued, contingent or otherwise and whether due or to
become due) greater than $1,000.00 other than payment of
liabilities incurred in the ordinary course of business
consistent with past practice.
(4) Any issuance or sale by UESI or the Target Company or any
Contract entered into by UESI or the Target Company for the
issuance or sale by UESI or the target Company of any shares in
the capital of or securities convertible into or exercisable into
shares in the capital of UESI or the Target Company.
(5) Any labor disturbances adversely affecting UESI or the Target.
(6) Any license, sale, assignment, transfer, disposition, pledge,
mortgage or granting of a security interest or other Encumbrance
on or over any property or assets of UESI or the Target Company
other than in the ordinary course of business.
(7) Any write-off as uncollectible of any Accounts Receivable or any
portion thereof of UESI or the Target in amounts exceeding the
allowance set out in the respective Target Company Financial
Statements.
(8) Any cancellation of any other debts or claims or any amendment,
termination or waiver of any other rights of value to UESI or the
Target in amounts exceeding $1,000.00 in each instance or
$5,000.00 in the aggregate.
(9) Any general increase in the compensation of employees of UESI or
the Target (including without limitation, any increase pursuant
to any employee plan or commitment) or any increase in any such
compensation or bonus payable to any officer, employee,
consultant or agent thereof (having an annual salary or
remuneration in excess of $30,000.00), the execution of any
employment contract with any officer or employee (having an
annual salary or remuneration in excess of $30,000.00) or the
making of any loan to or engagement in any transaction with any
employee, officer or director of UESI or the Target.
(10) Any material change in the accounting or tax practices followed
by UESI or the Target.
(11) Any material change adopted in the depreciation or amortization
policies or rates or any material change in the credit terms
offered to customers of or by supplies to UESI or the Target.
(12) Any acquisition, transfer, assignment, sale or other disposition
of any of the assets shown in the Target Company Financial
Statements other than in the ordinary course of business.
(13) Any institution or settlement of any litigation, action or
proceeding before any court or governmental body by or against
UESI or the Target.
(14) The creation of any debts and for liabilities whatsoever (whether
accrued, absolute, contingent or otherwise) other than in the
ordinary course of business.
(15) Any Contract other than in the ordinary course of business and
consistent with past practice.
(w) Taxes. Except as reserved for UESI or in the Target Company
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Financial Statements:
(1) All returns, including reports of every kind with respect to
Taxes, which are due to have been filed by UESI or the Target in
accordance with applicable law, have been duly filed by the dates
prescribed by law and are complete and accurate.
(2) All Taxes, deposits or other payments for which UESI or the
Target may have any liability arising prior to Closing have been
paid in full or accrued as liabilities for Taxes on the books of
UESI or the Target.
(3) All installments for Taxes which UESI or the Target may be
required to make have been made on a timely basis.
(4) The amount so paid on or before the Reference Date together with
any amounts accrued as liabilities for Taxes (whether accrued as
currently payable or deferred taxes) on the books and in the
respective Target Company Financial Statements will be adequate
to satisfy all liabilities for Taxes of UESI or the Target in any
jurisdiction in respect of the periods covered.
(5) There not now any extensions of time in effect with respect to
the dates on which any returns, including elections, or reports
of Taxes were or are due to be filed by UESI or the Target and
there are no outstanding requests therefor.
(6) No U.S. federal and state income tax assessments have been issued
to UESI or the Target covering all past periods up to and
including the fiscal year ended December 31, 1995 since both UESI
and the Target were incorporated during the year 1996.
(7) No payments are or will be required to be made by UESI or the
Target pursuant to any tax indemnity, allocation or sharing
agreement and all such agreements will be terminated with respect
to UESI or Target as of the Reference Date:
(8) No claims, proposals, assessments or reassessments for any Taxes
are being asserted or, to the Best Knowledge of Seller or UESI,
proposed or threatened and, to the Best Knowledge of UESI, no
audit or investigation of any return or report of Taxes is
currently under way, pending or threatened.
(9) There are no outstanding waivers or agreements by UESI or the
Target for the extension of time for the assessment or
reassessment of any Taxes or deficiency thereof nor are there any
requests for rulings, outstanding subpoenas or requests for
information, notice of proposed reassessment of any property
owned or leased by UESI or the Target or any other matter pending
between the UESI or the Target and any taxing authority.
(10) There are no liens for Taxes upon any property or assets of UESI
or the Target except liens for current Taxes not yet due.
(11) To the Best Knowledge of Seller there are no facts which exist or
have existed which would constitute grounds for the assessment of
any Taxes on UESI or the Target with respect to the periods which
have not been audited by the Internal Revenue Service or other
taxing authorities.
(12) The Target Company has withheld from each payment made to its
officers, directors and employees and former officers, directors
and employees, the amount of all Taxes and other deductions
required to be withheld therefrom and has paid the same to the
proper tax and other receiving officers within the time required
under applicable legislation.
(13) Adequate provision, including provision in the deferred tax
account has been made for all deferred and accrued Tax
liabilities with respect to operations of UESI or the Target
Company for the period ending on the Reference Date.
(14) Neither UESI or the Target have been obligated to file U.S.
Corporate Income Tax Return as of this Agreement Date.
(x) Assets. UESI has good and marketable title to all of its assets
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as reflected in the Financial Statements, free and clear of all
Encumbrances save and except for those assets sold, assigned, transferred
or disposed of in the ordinary course of business.
(y) Schedules. The Exhibits and Schedules hereto contain full,
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complete and accurate lists and descriptions of the following as of
the Reference Date and the date of the Financial Statement:
(1) All real property owned of record or beneficially of UESI or the
Target Company.
(2) All items of tangible personal property (other than raw material,
purchased parts, work in process, finished goods and other items
of inventory), if any, not reflected on any other Schedule hereto
having a book value of $200.00 or more and owned of record or
beneficially by UESI or the Target Company, including without
limitation, automobiles, trucks and other vehicles.
(3) All purchase commitments of UESI or the Target Company, including
accounts payable and any amounts owed under any subcontracts,
where the amount remaining unpaid is in excess of $500.00.
(4) All Contracts of UESI or the Target Company for the performance
of work, indicating any amounts due to UESI or the Target
Company, the percentage of the work to be performed that has been
completed, whether the Contract is bonded.
(5) Each lease (including all amendments thereto) where the total
amount remaining to be paid thereunder exceeds $500.00 under
which the UESI or Target Company is a lessee of any personal
property and each real property lease. All rentals due under all
such leases have been paid up to and including the Reference Date
and there are no defaults by UESI or the Target Company under the
terms of such leases and no event has occurred which, upon the
passage of time or the giving of notice or both would result in
an event of default by UESI or the Target Company or would
prevent UESI or the Target Company from exercising and obtaining
the benefits of any rights or options contained therein. UESI and
the Target Company has all right, title and interest of the
lessee under the terms of each such lease free and clear of any
Encumbrances and all such leases are valid and in full force and
effect. The Transaction does not constitute a default by UESI or
the Target Company under any such leases and the consent of the
lessors under such leases is not required with respect to this
Transaction.
(6) All Intellectual Property that is directly or indirectly owned,
licensed, used, required for use or controlled in whole or in
part by the Target Company and UESI and all material licenses and
other agreements allowing the Target Company and UESI to use the
Intellectual Property of other Persons. None of the Intellectual
Property of the Target Company and UESI infringes the
Intellectual Property of any other Person and to the Best
Knowledge of UESI, no activity of any other Person infringes upon
any of the Intellectual Property of the Target Company or UESI to
the extent that any such infringement in either case could have a
Material Adverse Effect on the Target Company or UESI. To the
Best Knowledge of UESI, the Target has been and is now conducting
business in a manner which has not been and is not now in
violation of any Intellectual Property of any other Person and
does not require a material license to operate such business as
currently conducted except as disclosed on Schedule 4.1(o). The
Intellectual Property of UESI or the Target is sufficient for the
conduct of business of the Target as currently conducted.
(7) Schedule 4.1(y)(7): The name and address of each bank, trust
company or other financial institution in which UESI or the
Target has an account and the names of all Persons authorized to
draw thereon as well as all powers of attorney granted by UESI or
the Target.
(8) Schedule 4.1(y)(8): All insurance policies now in full force and
effect (specifying the insurer, the amount of coverage, type of
insurance, the amount of deductible if any, the policy number,
expiry date and any pending claims thereunder) maintained the
Target on the lives of its directors and officers, together with
true copies thereof. The proceeds of such policies are fully
payable to UESI or the Target. All premiums in connection with
such policies are fully paid. Such insurance is in amounts
sufficient for compliance with all requirements of law and any
Contract to which UESI or the Target is a party with respect to
the assets, properties, business, operations, products and
services owned or conducted by UESI or the Target. There are no
claims, actions, suits or proceedings arising out of or based
upon any of such insurance policies and to the Best Knowledge of
UESI, no basis for any such claim, action, suit or proceeding
exists. Neither UESI nor the Target are in default with respect
to any provisions contained in any such insurance policy which
would adversely affect their rights to make any claim under any
such insurance policy.
(9) Schedule 4.l(y)(9): All major clients of UESI or the Target
(being those clients of UESI or the Target accounting for more
than 5% of revenues, as of the Reference Date There has been no
termination or cancellation of the business relationship of UESI
or the Target with any major client or group of major clients.
(10) Schedule 4.1(y)(10): All suppliers or vendors of products or
services to UESI or the Target aggregating more than $10,000.00
during the one-year period ending on the Reference Date, the
address of each such supplier or vendor and the amount sold to
UESI or the Target during such period.
(11) Schedule 4.1(y)(11): (a) All written contracts or arrangements
for the employment of any officer employee, agent or consultant
of UESI or the Target.
(b) A complete list of all permanent and full-time employees of UESI
or the Target, their salaries and wage rates, their positions and
their length of service and particulars of any Contracts,
arrangements or understandings, written or oral, with them.
(c) All bonus, deferred compensation, severance or termination pay,
insurance, medical, dental, drug, profit sharing, pension,
retirement, stock option, stock purchase, hospitalization
insurance or other material plans or arrangements providing
employee benefits to any current or forma director, officer,
employee or consultant of UESI or the Target and all relevant
vacation policies.
(z) Certain Contracts and Commitments. Schedule 4.(aa) sets forth a
---------------------------------
list and description of all contracts, leases and licenses of UESI or the
Target (the "Contracts") not included on any other Schedule. The
enforceability of the Contracts will not be affected in any manner by the
execution and delivery of this Agreement or the consummation of the
Transaction. UESI is not in default and there does not exist any event
that, with notice or lapse of time or both, would constitute an event of
default by UESI under any of the Contracts. To the Best Knowledge of UESI
there is no breach or default by any other party to the Contracts. A true
and complete copy of each such Contract has been delivered to ECO or will
be delivered to ECO prior to the Closing Date.
(aa) No Other Contracts. For greater certainty and without
------------------
limitation, or otherwise herein, UESI or the Target is not a party to
or bound by any Contract which in any way has or could have a Material
Adverse Effect on either Company. The Contracts set forth in the
Schedules hereto are not subject to renegotiation or cancellation
resulting from the Transaction. Except as described in the Schedules,
UESI or the Target (except in the ordinary course of business) is not
a party to or bound by:
(1) Any Contract for the purchase of materials, supplies, equipment
or services which involves the payment of $1,000.00 or more.
(2) Any Contract for the sale, license or provision of any assets or
services which involve the receipt of $1,000.00 or more.
(3) Any trust indenture, mortgage, promissory note, loan agreement,
guarantee or other Contract for the borrowing of money or a
leasing transaction of the type required to be capitalized in
accordance with generally accepted accounting principles.
(4) Any Contract for charitable contributions in excess of $500.00 in
the aggregate.
(5) Any Contract relating to a distributorship, sales representative
or sales agency agreement.
(6) Any Contract which involves the sharing of profits, a joint
venture, Company, joint development or bidding arrangement or any
material advertising contracts.
(7) Any Contract not made in the ordinary course of business.
(8) Any Contract restricting in any manner the conduct of UESI or the
Target or the ownership or use of the assets thereof.
(9) Any material warranties relating to products distributed or
services provided by UESI or the Target.
(10) Any Contract involving the payment or receipt of $5,000.00 or
more in any 12 month period.
(11) Any Contract required to be disclosed on a Schedule to this
Agreement that is not so disclosed.
(ab) Default of Contracts. UESI and the Target have performed all of
--------------------
the obligations required to be performed by it to the extent performance is
due and is entitled to all benefits under and is not in default or alleged
to be in default in respect of, any Contract to which they are a party or
by which it is bound. No event, condition or occurrence exists that, after
notice or lapse of time or both, would constitute a default under any of
such Contracts. UESI and the Target have the capacity, including the
necessary personnel, equipment and supplies, to materially perform all its
current obligations under all such Contracts.
(ac) Compliance with Laws. UESI and the Target have conducted and are
--------------------
now conducting business in compliance with all statutes, regulations,
by-laws, orders, covenants, restrictions or plans of all federal, state or
municipal authorities, agencies or boards applicable to such business.
UESI and the Target are not in default under any such statutes,
regulations, by-laws, orders, covenants, restrictions or plans applicable
to it. Neither UESI nor the Target nor any of its directors, officers,
agents, employees or other Persons acting on behalf of UESI or the Target
have, directly or indirectly, used any corporate funds of UESI or the
Target for unlawful contributions, gifts, entertainment or other unlawful
expenses relating to political activity, made any unlawful payments on
behalf of the UESI or the Target to foreign or domestic government
officials or employees or to foreign or domestic political parties or
campaigns from corporate funds, knowingly made any false or fictitious
entry on the books or records of UESI or the Target or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment on
behalf of UESI or the Target.
(ad) Real Property. The occupation and use to which the real property
-------------
owned or leased by UESI or the Target have been put by UESI or the Target
is not in breach of any applicable statute, by-law, regulation, covenant or
restriction applicable to such real property. The zoning by-laws applicable
to such real property of UESI or the Target permit the operation of
business and the intended use to be made of such real property by UESI or
the Target. There are no outstanding work orders against such real property
of UESI or the Target or any part thereof nor are there any matters under
discussion between UESI or the Target and any governmental or municipal
authority which may give rise to work orders.
(ae) Environmental Matters. To the Best Knowledge of UESI, the
---------------------
buildings and premises at which UESI and the Target carry on business does
not contain any material quantities of noxious substances including without
limitation, urea formaldehyde foam insulation, aluminum wiring, asbestos,
materials containing asbestos, polychlorinated byphenyls or substances
containing polychlorinated byphenyls or radon at levels deemed unacceptable
by any health, labor or environmental authority or any federal, state or
municipal government. The operations of the UESI and the Target in all
material respects complies with all applicable environmental statutes,
regulations and decrees, whether federal, state or municipal. The Target
has not received any notices to the effect that the business carried on by
the Target is not in compliance with the requirements of applicable
environmental statutes, regulations or decrees or is subject to any
remedial control or action or any investigation or evaluation as to whether
any remedial action is required to respond to a release or threatened
release of any contaminant into the environment or into any facility or
structure which forms part of or is adjacent to the real property at which
the business is carried on.
(af) Employee Plans and Arrangements. All of the contracts, plans and
-------------------------------
arrangements referred to in subsection 4.1(y)(11) are in good standing and
UESI and the Target have made all payments required to be made by it in
connection therewith. All employee plans requiring funding on the part of
UESI and the Target are fully funded. UESI and the Target do not have any
employees receiving or claiming long term disability benefits or workers'
compensation benefits for which UESI or the Target will be liable. No
notice has been received by UESI or the Target of any complaints filed by
any employees claiming that UESI or the Target have violated any applicable
employee or human rights or similar legislation in any other jurisdiction
in which UESI or the Target carries on business or of any complaints or
proceedings of any kind involving UESI or the Target or any employees of
UESI or the Target before any labor relations board. There are no
outstanding orders or charges against UESI or the Target under any
applicable heath and safety legislation in the jurisdictions in which UESI
or the Target carries on business. All levies, assessments and penalties
made against the Target pursuant to any applicable workers' compensation
legislation in any jurisdictions in which UESI or the Target carries on
business have been paid by UESI or the Target and UESI or the Target have
been reassessed under any such legislation during the past 3 years. UESI
and the Target have not made any agreements with any labor union or
employee association or made commitments to or conducted negotiations with
any labor union or employee association with respect to any future
agreements and UESI is not aware of any current attempts to organize or
establish any labor union or employee association relating to UESI or the
Target. UESI and the Target have not entered into any agreement or made
any arrangements with any employees or consultants which would have the
effect of depriving UESI or the Target of the continued services of any
such employees and consultants following the Closing.
(ag) Omissions and Misrepresentations. None of the foregoing
--------------------------------
covenants, representations and warranties knowingly contains any untrue
statement of material fact or omits to state any material fact necessary to
make any such covenant, warranty or representation not misleading to a
prospective purchase of the Company Shares seeking full information as to
UESI or the Target Company.
5. SURVIVAL OF COVENANTS. REPRESENTATIONS AND WARRANTIES
-----------------------------------------------------
5.1 Survival. No investigations made by or on behalf of any Party at any
--------
time shall have the effect of waiving, diminishing the scope of or
otherwise affecting any covenant, representation or warranty made by any
Party. No waiver by any Party of any condition, in whole or in part, shall
operate as a waiver of any other condition. The covenants, representations
and warranties contained in Article 3 and 4 respectively or in any
certificate or other document delivered in connection with the Closing
shall survive the making of this Agreement and the Closing for a period of
2 years (the "Survival Period") provided however that if a claim for a
breach of any such covenant, representation or warranty is brought prior to
the expiration of the applicable Survival Period such covenant,
representation or warranty shall, for the purposes of such claim, survive
the applicable Survival Period until such claim is finally resolved and all
obligations with respect thereto have been fully satisfied.
6. INDEMNITY
---------
6.1 Indemnity by ECO. ECO agrees to indemnify and save harmless Seller,
----------------
Target and UESI, its current and former officers and directors from all
Losses actually incurred by them as a result of any breach by ECO or any
inaccuracy of any covenant, representation or warranty contained in this
Agreement, as well as any breach by UESI in the assumption of liabilities,
covenants and obligations arising out of the Asset Purchase Agreement
attached hereto as Exhibit "A", or any claims or allegations derived from
or arising out of the negotiations leading to the execution of Exhibit "A".
6.2 Indemnity by Seller. Seller agrees to indemnify and save harmless ECO
-------------------
from all Losses actually incurred by ECO as a result of any breach by UESI
or any inaccuracy of any covenant, representation or warranty contained in
this Agreement, as well as any breach by UESI in the assumption of
liabilities, covenants and obligations arising out of the Asset Purchase
Agreement attached hereto as Exhibit "A", or any claims or allegations
derived from or arising out of the negotiations leading to the execution of
Exhibit "A".
6.3 Notice of Claims
----------------
(a) In the event that a Party (the "Indemnified Party") shall become
aware of any Loss in respect of which another Party (the "Indemnifying
Party") agreed to indemnify the Indemnified Party pursuant to this
Agreement (the "Indemnification Claim"), the Indemnified Party shall
promptly give written notice thereof to the Indemnifying Party. Such notice
shall specify whether the Indemnification Claim arises as a result of a
claim by a Person against the Indemnified Party (a "Third Party Claim") or
whether the Loss does not so arise (a "Direct Claim") and shall also
specify with reasonable particularity (to the extent that the information
is available) the factual basis for the Indemnification Claim and the
amount of the Loss if known.
(b) If through the fault of the Indemnified Party the Indemnifying
Party does not receive notice of any Indemnification Claim in time to
contest effectively the determination of any liability susceptible of being
contested, the Indemnifying Party shall be entitled to set off against the
amount claimed by the Indemnified Party the amount of any Losses incurred
by the Indemnifying Party resulting from the Indemnified Party's failure to
give such notice on a timely basis.
6.4 Investigation of Claims. With respect to any Direct Claim, following
-----------------------
receipt of notice from the Indemnified Party of the Indemnification Claim,
the Indemnifying Party shall have 60 days to make such investigation of the
Indemnification Claim as is considered necessary or desirable. For the
purpose of such investigation, the Indemnified Party shall make available
to the Indemnifying Party the information relied upon by the Indemnified
Party to substantiate the Indemnification Claim, together with all such
other information as the Indemnifying Party may reasonably request. If all
Parties agree at or prior to the expiration of such 60 day period (or any
mutually agreed upon extension thereof) to the validity and amount of such
Indemnification Claim, the Indemnifying Party shall immediately pay to the
Indemnified Party the full agreed upon amount of the Indemnification Claim,
failing which the matter shall be determined by a court of competent
jurisdiction.
6.5 Supplemental Rights. The rights and benefits provided in this Article
-------------------
are supplemental to and are without prejudice to any other rights, actions
or causes of action which may arise pursuant to any other section of this
Agreement or pursuant to applicable law.
7. PRE-CLOSING COVENANTS
---------------------
7.1 Operations Before Closing. For greater certainty and without
-------------------------
limitation, without the prior written consent of ECO during the period
commencing on the Reference Date and terminating at the close of business
on the Closing Date, UESI: (i) shall not make nor shall UESI permit to be
made any Material change in the way the Target is being operated; and
(ii) shall comply with all laws in connection with the business of the
Target.
8. CONDITIONS PRECEDENT TO UESI's OBLIGATIONS AT CLOSING
-----------------------------------------------------
8.1 Conditions Precedent. All obligations of Seller to sell UESI Shares
--------------------
at Closing under this Agreement are subject to the fulfillment (or waiver
in writing by Seller) prior to or at the Closing of the following
conditions:
(a) Covenants, Representations and Warranties. The covenants,
-----------------------------------------
representations and warranties made by ECO in or under this Agreement shall
be true in all material respects on and as of the Closing Date.
(b) Actions. Etc. All actions, proceedings, instruments and
------------
documents required to carry out the Transaction shall have been approved by
Seller and it shall have been furnished with such certified copies of
actions and proceedings and other such instruments and documents as
requested.
(c) Approvals. ECO shall have received all requisite regulatory
---------
approvals including approvals of the TSE and NASDAQ and board of director
approvals in connection with the Transaction.
(d) Compliance with Covenants. ECO shall have complied with all
-------------------------
covenants and agreements herein agreed to be performed or caused to be
performed by ECO.
(e) Approvals and Consents. At or before Closing there shall have
----------------------
been obtained from all appropriate federal, state, provincial, municipal or
other governmental or administrative bodies all such approvals and
consents, if any, in form and on terms satisfactory to Seller as provided
in this Agreement.
(f) Corporate Authorizations. ECO shall have delivered to Seller
------------------------
evidence satisfactory to Seller that all necessary corporate authorizations
by ECO authorizing and approving the Transaction have been obtained.
(g) No Orders. No order of any court or administrative agency shall
---------
be in effect which restrains or prohibits the Transaction and no suit,
action, inquiry, investigation or proceeding in which it will be or it is
sought to restrain, prohibit or change the terms of or obtain damages or
other relief in connection with the Transaction and which in the judgment
of UESI makes it inadvisable to proceed with the consummation of the
Transaction shall have been made, instituted or threatened by any Person.
In case any of the foregoing conditions cannot be fulfilled at or before
the Time of Closing to the satisfaction of Seller, Seller may rescind this
Agreement by notice to ECO and in such event all of the Parties shall be
released from all monetary obligations hereunder; provided however that any
such conditions may be waived in whole or in part by Seller without
prejudice to Seller's rights of rescission in the event of the
non-fulfillment of any other condition or conditions, any such waiver to be
binding on Seller only if the same is in writing.
9. CONDITIONS PRECEDENT TO ECO'S OBLIGATIONS AT CLOSING
----------------------------------------------------
9.1 Conditions Precedent. All obligations of ECO to purchase UESI Shares
--------------------
at Closing under this Agreement are subject to the fulfillment (or waiver
in writing by ECO) prior to or at the Closing of the following conditions:
(a) Actions, Etc. All actions, proceedings, instruments and
------------
documents required to carry out the Transaction including without
limitation, the transfer of Seller's Shares and all other related legal
matters shall have been approved by ECO and ECO shall have been furnished
with such certified copies of actions and proceedings and other such
instruments and documents as ECO shall have requested.
(b) Covenants, Representations and Warranties. The covenants,
-----------------------------------------
representations and warranties made by Seller and UESI in or under this
Agreement shall be true in all material respects on and as of the Closing
Date.
(c) Approvals. ECO shall have received all requisite regulatory
---------
approval including without limitation approvals of TSE and NASDAQ and board
of director approvals in connection with the Transaction.
(d) Resignations. All of the directors and officers of UESI and the
------------
Target Company shall have resigned as directors and officers of UESI and
the Target Company in favor of nominees of ECO and the resigning directors
and officers of UESI and the Target Company shall have delivered releases
to UESI and the Target Company and ECO in form and substance reasonably
satisfactory to ECO.
(e) Compliance with Covenants. UESI shall have complied with all
-------------------------
covenants and agreements herein agreed to be performed or caused to be
performed by UESI.
(f) Approvals and Consents. At or before Closing there shall have
----------------------
been obtained from all appropriate federal, state municipal or other
governmental or administrative bodies all such approvals and consents, if
any, in form and on tams satisfactory to ECO as may be required in order to
transfer the UESI Shares at Closing as herein provided.
(g) Permits and Licenses. ECO shall have been furnished with
--------------------
evidence that UESI and the Target Company holds all valid permits and
licenses as may be requisite for carrying on business.
(h) Corporate Authorizations. UESI shall have delivered to ECO
------------------------
evidence satisfactory to ECO that all necessary corporate authorizations by
UESI authorizing and approving the Transaction have been obtained.
(i) No Orders. No order of any court or administrative agency shall
---------
be in effect which restrains or prohibits the Transaction and no suit,
action, inquiry, investigation or proceeding in which it will be or it is
sought to restrain, prohibit or change the terms of or obtain damages or
other relief in connection with the Transaction and which in the judgment
of ECO makes it inadvisable to proceed with the consummation of the
Transaction shall have been made, instituted or threatened by any Person.
10. MISCELLANEOUS
-------------
10.1 Tender. Any tender of documents or money hereunder may be made upon
------
the Parties or upon their respective solicitors as set forth herein.
10.2 Notice. All notices, requests, demands or other communications by the
------
Parties required or permitted to be given by one Party to another shall be
given in writing by personal delivery, telecopy or by registered or
certified mail, postage prepaid, addressed, telecopied or delivered to such
other Party as follows:
(a) if to Seller, to:
0000 Xxx Xxxxxxxxxxx Xxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X'Xxxxxx
(b) if to ECO, to:
00000 Xxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. XxXxxxxx
or at such other address or telecopier number as may be given by any of
them to the others in writing from time to time and such notices, requests,
demands or other communications shall be deemed to have been received when
delivered, if personally delivered, on the date telecopied (with receipt
confirmed) if telecopied and received at or prior to 5:00 p.m. local time
and, if not, on the next Business Day, and if mailed, on the date received
as certified.
10.3 Further Assurances. The Parties shall sign such other papas, cause
------------------
such meetings to be held, resolutions passed and by-laws enacted and
exercise their vote and influence, do and perform and cause to be done and
performed such further and other acts and things as may be necessary or
desirable in order to give full effect to this Agreement and every part
hereof.
10.4 Laws. This Agreement shall be governed by the laws of Texas and the
----
Parties hereby irrevocably attorney to the Courts of Xxxxxx County, Texas.
10.5 Advice of Counsel. The provisions of this Agreement and their legal
-----------------
effect have been fully explained to the Parties by Xxxxxx X. Xxxxxxx,
Esquire who has functioned solely as scrivener of this Agreement, based
upon the terms which have been agreed upon by the Parties. Each Party
acknowledges that they have been advised by Xxxxxx X. Xxxxxxx to secure
independent legal advice from counsel and that he or it has either received
independent legal advice from counsel of his or its selection or has waived
the right to such advice and that each fully understands the facts and have
been fully informed as to his or its legal rights and obligations and each
Party acknowledges and accepts this Agreement is, under the circumstances,
fair and equitable and is being entered into freely and voluntarily, after
having received or waived such advice and each with such knowledge that the
execution of this Agreement is not the result of any duress or undue
influence and that it is not the result of any collusion or improper or
illegal agreement or agreements. The Parties further acknowledge that
Xxxxxx X. Xxxxxxx. Esquire is not a member of the Bar of the State of
North Carolina, the State of Texas, nor the State of Delaware, and that he
has and continues to represent Xxxxxxx X. X'Xxxxxx and Eco in individual
and corporate capacity.
10.6 Time of the Essence. Time shall be of the essence of this Agreement
-------------------
and of every part hereof and no extension nor variation of this Agreement
shall operate as a waiver of this provision.
10.7 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the Parties with respect to all of the matters herein. This
Agreement supersedes any and all agreements, understandings and
representations made between the Parties prior to the date hereof. This
Agreement shall not be amended except by a memorandum in writing signed by
all of the Parties and any amendment hereof shall be null and void and
shall not be binding upon any Party which has not given its consent as
aforesaid.
10.8 Assignment. No Party may assign this Agreement or any part hereof
----------
without the prior written consent of the other Parties which consent may be
unreasonably withheld. Subject to the foregoing, this Agreement shall
inure to the benefit of and be binding upon the Parties and their
respective successors and permitted assigns. but no other Person.
10.9 Invalidity. In the event that any of the covenants, representations
----------
and warranties or any portion of them contained in this Agreement are
unenforceable or are declared invalid for any reason whatsoever, such
unenforceability or invalidity shall not affect the enforceability or
validity of the remaining tams or portions thereof contained in this
Agreement and such unenforceable or invalid, covenant, representation and
warranty or covenant or portion thereof shall be severable from the
remainder of this Agreement.
10.10 Counterpart. This Agreement may be executed in several
-----------
counterparts, each of which so executed shall be deemed to be an original
and such counterparts when taken together shall constitute one and the same
original agreement which shall be binding on the Parties hereto.
10.11 Waiver of Jury Trial. The Parties hereby agree to waive the right
--------------------
to a trial by jury in any action arising hereunder.
10.12 Schedules. The parties acknowledge that as of the Closing Date,
---------
not all of the Schedules and exhibits referred to in the Agreement have
been approved by the parties and attached to this Agreement. Accordingly,
the parties agree to fully cooperate with each other in good faith in the
completion and approval of all Schedules not attached hereto as of the
Closing Date by no later than December 31, 1996, unless a different
compliance date is provided for within any specific Schedule.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals the day and year first above written.
ATTEST: UNITED ECO SYSTEMS, INC.
By: /s/ X. Xxxxxxxx By: /s/ Xxxxxxx X'Xxxxxx
--------------------------- ---------------------------
ATTEST: AMERICAN ECO CORPORATION
By: /s/ [illegible] By: /s/ Xxxxxxx X. XxXxxxxx
--------------------------- ------------------------------
