EXHIBIT 10.37
STOCK SALE AGREEMENT
--------------------
This agreement (the "Agreement") is made as of the /s/ 5th day of /s/
July, 2000 by and between Xxxxxx Xxxx (the "Seller"), and CECO Environmental
Corp. (the "Purchaser").
RECITALS:
A. The Seller desires to sell 124,703 shares of the common stock of the
Purchaser (the "Shares") for $2.125 per share.
B. Purchaser desires to purchase the Shares.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual representations,
warranties and undertakings contained herein, the parties hereto agree as
follows:
11. Sale and Purchase of Shares. In accordance with the terms and
subject to the conditions contained herein, the Purchaser hereby agrees to
purchase from the Seller and the Seller hereby agrees to sell to the Purchaser
the Shares for aggregate purchase consideration of $264,993.88 (the "Purchase
Price").
12. The Closing. The closing (the "Closing") shall occur on June 30,
2000. On the date of the Closing the Seller shall deliver to the Purchaser
certificates representing the Shares ("Certificates") endorsed in blank or
accompanied by assignments separate from certificate sufficient to transfer the
Shares into the name of Purchaser and Purchaser shall deliver to the Seller the
Purchase Price by certified check or immediately available funds via wire
transfer.
13. Representations and Warranties of the Seller. The Seller hereby
represents and warrants to the Purchaser as follows:
3.1 Authority Relative to this Agreement. The Seller has the
authority to enter into this Agreement. This Agreement has been duly executed
and delivered by the Seller and is a valid and binding Agreement enforceable in
accordance with its terms except as such enforcement is subject to bankruptcy,
insolvency, reorganization or other laws relating to or affecting the
enforcement of creditors' rights generally.
3.2 No Violation or Conflict. Neither the execution nor the
consummation of this Agreement will violate or result, with the giving of notice
or lapse of time, or both, in a violation of or result in the acceleration of or
entitle any party to accelerate (whether after the giving of notice or lapse of
time or both) any obligation under, or result in the creation of imposition of
any lien, charge, pledge, security interest or other encumbrance upon the
property of the Seller pursuant to any provision of any contract, agreement,
note, mortgage, lien, indenture, license, lease, other instrument, law,
ordinance, regulation, arbitration, order, judgment or decree to which the
Seller is a party or by which it, or its property is bound, or permit the
termination of any agreement, instrument, lien, license, lease or mortgage to
which the Seller is a party.
3.3 Court Orders, Decrees and Laws. There is no outstanding or, to
the Seller's knowledge, threatened, order, writ, injunction or decree of any
court, government agency or arbitrational tribunal against or affecting the
Seller or any of its assets that would significantly interfere with the Seller's
ability to consummate the transaction contemplated by this Agreement.
3.4 Absence of Litigation. There is no action, suit, proceeding,
claim, arbitration or investigation pending or, to the best knowledge of the
Seller, threatened or contemplated by any person including, without limitation
any governmental or regulatory agency, against the Seller or with respect to the
assets of the Seller or which seeks to prohibit, restrict or delay consummation
of this Agreement or the transactions contemplated hereby. There is no factual
basis known to the Seller which is known to present a possibility for any such
action, suit, proceeding, claim, arbitration or investigation.
3.5 Encumbrances. Seller has good and marketable title to the Shares
free and clear of all liens, charges, encumbrances, security interests and
claims whatsoever.
3.6 Status of Seller. Seller has been given access to all the
information that Seller considers necessary or appropriate for deciding whether
to sell the Shares. Seller further represents that she has had an opportunity to
ask questions and receive answers from Purchaser regarding the business,
properties, prospects and financial condition of the Purchaser and its
affiliates, including without limitation from Xxxxxx X. Xxxx, an executive
officer of CECO Filters, Inc.
14. Representations, Warranties and Covenants of the Purchaser. The
Purchaser hereby represents and warrants to the Seller as follows:
4.1 The Purchaser. The Purchaser is a corporation duly organized and
validly existing under the laws of the State of New York and has all requisite
right, power and authority necessary to own, lease and operate all of its
property and to carry on its business as it is now being carried on.
4.2 Authority Relative to the Contracts. The Purchaser has the
authority to enter into this Agreement. This Agreement has been duly executed
and delivered by the Purchaser and is a valid and binding Agreement enforceable
in accordance with its terms except as such enforcement is subject to
bankruptcy, insolvency, reorganization or other laws relating to or affecting
the enforcement of creditors' rights generally.
4.3 No Violation or Conflict. Neither the execution nor the
consummation of this Agreement will violate any provision of the articles of
organization or operating agreement of the Purchaser or violate or result, with
the giving of notice or lapse of time, or both, in a violation of or result in
the acceleration of or entitle any party to accelerate (whether after the giving
of notice or lapse of time or both) any obligation under, or result in the
creation of imposition of any lien, charge, pledge, security interest or other
encumbrance upon the property of the Purchaser pursuant to any provision of any
contract, agreement, note, mortgage, lien, indenture, license, lease, other
instrument, law, ordinance, regulation, arbitration, order, judgment or decree
to which the Purchaser is a party or by which it, or its property is bound, or
permit the termination of any agreement, instrument, lien, license, lease or
mortgage to which the Purchaser is a party.
4.4 Court Orders, Decrees and Laws. There is no outstanding or, to
the Purchaser's knowledge, threatened, order, writ, injunction or decree of any
court, government agency or arbitrational tribunal against or affecting the
Purchaser or any of its assets that would significantly interfere with the
Purchaser's ability to consummate the transaction contemplated by this
Agreement.
4.5 Absence of Litigation. There is no action, suit, proceeding,
claim, arbitration or investigation pending or, to the best knowledge of the
Purchaser, threatened or contemplated by any person including, without
limitation any governmental or regulatory agency, against the Purchaser or with
respect to the assets of the Purchaser or which seeks to prohibit, restrict or
delay consummation of this Agreement or the transactions contemplated hereby.
There is no factual basis known to the Purchaser which is known to present a
possibility for any such action, suit, proceeding, claim, arbitration or
investigation.
15. Conditions Precedent to Obligations of the Purchaser. Consummation
of the transaction contemplated hereby on the part of the Purchaser is subject
to the fulfillment, to the reasonable satisfaction of the Purchaser, of each of
the following conditions:
5.1 Representations True at Closing. The representations and
warranties of the Seller contained in Section 3 of this Agreement shall be true
in all material respects on the date hereof and at the time of the delivery of
the Certificates.
5.2 Litigation. No litigation or proceeding shall be pending or
threatened to restrain, set aside or invalidate the transactions contemplated by
this Agreement.
5.3 Separation Agreement. Seller has entered into and is not in
default of that certain Separation Agreement among Purchaser, Seller and CECO
Filters, Inc.
5.4 Xxxxxx X. Xxxx Agreement. Xxxxxx X. Xxxx has entered into and
performed his obligations pursuant to a Stock Purchase Agreement among Xxxxxx X.
Xxxx, CECO Filters, Inc. and Purchaser in form satisfactory to Purchaser.
16. Conditions Precedent to Obligations of the Seller. Consummation of
the transactions contemplated hereby on the part of the Seller is subject to the
fulfillment, to the reasonable satisfaction of the Seller of each of the
following conditions:
6.1 Representations True at Closing. The Purchaser's representations
and warranties contained in Section 4 of this Agreement shall be true in all
material respects at the date hereof and at the time of the delivery of the
Certificates.
6.2 Litigation. No litigation or proceeding shall be pending or
threatened to restrain, set aside or invalidate the transactions contemplated by
this Agreement.
17. Survival of Representations, Warranties, Covenants and Agreements.
All warranties, representations, covenants and agreements made hereunder shall
survive the Closing.
18. Termination. If any of the conditions for the consummation by the
Seller or the Purchaser of the closing of the transactions hereunder shall not
have been fulfilled (despite the best efforts of the party, if any, obligated to
fulfill such condition) or waived by July 15, 2000, then this Agreement may
thereafter be terminated by any party hereto. Such termination hereunder shall
be effected by notice by the terminating party to the other parties hereunder,
and upon such termination this Agreement shall be without further force and
effect, and no party hereto shall be liable to any other for any claim, damage,
cost or expense arising from the execution and delivery of this Agreement or the
failure to consummate the transactions contemplated hereby.
19. Remedies. The parties hereto, in addition to being entitled to
exercise all rights provided herein or granted by law, including recovery of
damages, shall be entitled to specific performance of their rights under this
Agreement and all other appropriate equitable remedies. The parties agree that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach of the provisions of this Agreement, and hereby agree to
waive the defense, in any action for specific performance, that monetary damages
would be adequate compensation. The parties hereto further agree that in the
event of any breach of this Agreement, the breaching party shall be liable for
all damages arising as a consequence of such breach, including without
limitation, costs and expenses (including, without limitation, attorneys' fees),
incurred by the non-breaching party in attempting to enforce its rights
hereunder.
20. Miscellaneous. It is the understanding of the parties hereto that:
10.1 Waiver. Any party may, at its option, waive in writing any or
all of the conditions herein contained to which its obligations hereunder are
subject.
10.2 Expenses. Each party hereto shall bear its own expenses in
connection with this Agreement and the transactions contemplated herein.
10.3 Entire Agreement. This Agreement sets forth the entire
understanding of the parties and supersedes all prior agreements, arrangements
and communications, whether oral or written, with respect to the subject matter
hereof. This Agreement shall not be modified or amended except by written
agreement of the parties hereto. Captions appearing in this Agreement are for
convenience only and shall not be deemed to explain, limit or amplify the
provisions or contents hereof.
10.4 Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if the invalid
or unenforceable provision were omitted.
10.5 Binding Effect; Assignment. All the terms, provisions,
covenants and conditions of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
heirs and successors. This Agreement and the rights and obligations of the
parties hereto shall not be assigned or delegated by any party hereto without
the written consent of the other parties hereto.
10.6 Notices. Any notice or other instrument or thing required or
permitted to be given, served or delivered to any of the parties hereto shall be
in writing and shall be considered given when hand-delivered to the recipient,
or when delivered to an internationally recognized courier service, or when
deposited with the U.S. Postal Service using certified mail, postage prepaid,
addressed to the recipient at:
The Seller:
Xxxxxx Xxxx
___________________________
___________________________
The Purchaser:
CECO Environmental Corp.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attn: Xxxxxxx XxXxxxxx
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Sugar, Friedberg & Felsenthal
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
or at such other address as a party may designate to another party in accordance
with the terms of this Section 10.6.
10.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws (as opposed to its rules
governing conflicts of laws) of the State of Pennsylvania.
10.8 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
10.9 Costs and Attorneys' Fees. If either party to this Agreement
institutes a legal action to enforce its rights under any provision of this
Agreement, the non-prevailing party in such action shall be liable to the
prevailing party for the costs and reasonable attorneys' fees incurred by the
prevailing party in connection with the action.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first set forth above.
CECO Environmental Corp.
By: /s/ Xxxxxxx XxXxxxxx
---------------------------
Its: /s/ Chairman & CEO
---------------------------
.
/s/ Xxxxxx Xxxx
---------------------------
Xxxxxx Xxxx
