Exhibit 2(B)
AGREEMENT AND PLAN OF MERGER
AMONG
STRATEGIC SOLUTIONS GROUP, INC.
AND
U.S. TECHNOLOGIES, INC.
AND
SSGI-UST ACQUISITION CORPORATION
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated March , 1998 by
and among STRATEGIC SOLUTIONS GROUP, INC., a Delaware corporation, ("SSGI"),
U.S. TECHNOLOGIES, INC., a Florida corporation ("UST") and SSGI-UST ACQUISITION
CORPORATION, a Florida corporation ("SUAC")
RECITALS
WHEREAS, contemporaneously with the merger contemplated herein, UST and/or
SUAC has received funding assurances from X.X. Xxxxxx & Co., Inc. as placement
agent for the purpose of completing a private placement of at least $2,000,000
for UST and/or SUAC and the completion of an initial public offering of the
securities of UST and/or SUAC in an amount of approximately $5,000,000 to be
underwritten by one or more qualified underwriters.
WHEREAS, in reliance of the foregoing recital, the respective Boards of
Directors of SSGI, UST, and SUAC have determined that it is in their respective
best interests to merge SUAC with and into UST, and take all other necessary
action to effectuate such merger, on the terms and subject to the conditions of
this Agreement.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein and intending to be legally bound thereby, the parties hereto
agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 THE MERGER. As of the Effective Time, as defined herein, and on
the terms and subject to the conditions hereof, and in accordance with the
relevant provisions of the Florida Business Corporation Law ("FBCL"), SUAC shall
be merged with and into UST (the "Merger"). Following the Merger, UST shall
continue as the surviving corporation (the "Surviving Corporation") and shall
continue its existence under the laws of the State of Florida, and the separate
corporate existence of SUAC shall cease.
SECTION 1.2 EFFECTIVE TIME. The Merger shall be consummated by filing with
the Department of State of the State of Florida articles of SUAC substantially
in the form of Exhibit 1.2 (the "Articles of Merger") in accordance with the
FBCL (the later of the time of such filing and the time specified in the
Articles of Merger being the "Effective Date".
SECTION 1.3 EFFECTS OF THE MERGER. The Merger shall have the effects set
forth in Title 23D, Chapter 23B.11 of the FBCL.
SECTION 1.4 ARTICLES OF INCORPORATION AND BY-LAWS. The Articles of
Incorporation and the By-Laws of SUAC, as amended through the date hereof and as
further amended by the Articles of Merger, shall be the Articles of
Incorporation and By-Laws of the Surviving Corporation until further amended as
provided therein or by law.
SECTION 1.5 DIRECTORS AND OFFICERS. The Director of UST immediately after
the Effective Time shall be Xxxxx X. Xxxxxx. The President, Treasurer and
Secretary of UST immediately after the Effective Time shall be Xxxxx X. Xxxxxx.
SECTION 1.6 CONVERSION OF SHARES. At the Effective Time, by virtue of the
Merger and without any action on the part of SSGI, UST, SUAC or the holders of
any of the following securities:
(a) Each SUAC share of Common Stock outstanding immediately prior to the
Effective Date shall be converted into 1,000 shares of UST and SSGI shall be
issued 92,500 shares of UST Common Stock such that SSGI will own a total of
100,000 shares of UST Common Stock after the merger.
(b) In addition to the foregoing, SUAC and/or UST shall pay to SSGI
additional compensation for the merger equal to the following:
(i) a promissory note in the principal amount of $600,000 with six
percent (6%) interest compounded monthly payable in full upon the earlier of the
closing of the $2,000,000 private placement or sixty (60) days from the Closing
Date and secured by all of the assets of UST and a pledge of all of the
outstanding shares of stock of UST pursuant to the Promissory Note, Security
Agreement and Pledge Agreement attached hereto and made a part hereof
collectively as Exhibit "1.6A"; plus
(ii) a subordinated secured convertible debenture in the face amount of
$927,000 (or such higher amount to reflect additional funding by SSGI for UST
after February 6, 1998) bearing interest at the rate of 6% per annum, payable in
full on the 545th day after the Closing (as hereinafter defined), which shall be
convertible into shares of stock of SUAC pursuant to the Form of Debenture
attached hereto and made a part hereof as Exhibit "1.6B".
SECTION 1.7 CLOSING. Upon the terms and subject to the conditions hereof,
as soon as practicable after the respective requisite vote of the shareholders
and directors of UST and SUAC in favor of the approval of the Merger has been
obtained and the other conditions set forth in Article VI hereof have been
satisfied or, if permissible, waived, UST and SUAC (and SSGI if appropriate)
shall execute and deliver to the Department of State of the State of Florida
duly executed Articles of Merger, as required by the FBCL, and the parties shall
take all such other and further actions as may be required by law to make the
Merger effective. Prior to the filings referred to in this Section 1.7, a
closing (the "Closing") will be held at the offices of SSGI, 000 Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxxxxx (or such other place as the parties may agree)
for the
purpose of facilitating, effecting and confirming all the foregoing (the date of
the Closing being sometimes referred to as the "Closing Date"). Subject to the
terms hereof and to the requirements of law, the parties agree to use their
reasonable best efforts to effect the Closing on or about March 25, 1998 at
10:00 a.m. EST.
SECTION 1.8 SUBSEQUENT ACTIONS. If, at any time after the Effective Time,
the Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of either UST or SUAC acquired or to be acquired or
maintained by the Surviving Corporation as a result of, or in connection with,
the Merger or otherwise to carry out this Agreement, the officers and directors
of the Surviving Corporation shall be authorized to execute and deliver, in the
name and on behalf of each of UST and SUAC all such deeds, bills of sale,
assignments and assurances and to take and do, in the name and on behalf of each
of UST and SUAC all such other actions and things as may be necessary or
desirable to vest, perfect or confirm any and all right, title and interest in,
to and under such rights, properties or assets in the Surviving Corporation or
otherwise to carry out this Agreement.
ARTICLE II
EXCHANGE OF SHARE CERTIFICATES
SECTION 2.1 EXCHANGE OF SHARE CERTIFICATES.
(a) At Closing, SUAC or its designated agent shall deliver to SSGI the
certificates representing the shares of UST constituting a portion of the Merger
Consideration.
(b) UST Shares being issued hereunder, are being issued without
Registration under the Securities Act (as hereinafter defined) or Applicable
Laws (as hereinafter defined) and, except as provided in the Registration Rights
Agreement attached hereto and made a part hereof as Exhibit "2.1", the shares
have not been and are not being registered under the 1933 Act, and may not be
transferred unless (A) subsequently registered thereunder or (B) SUAC shall have
delivered to SSGI an opinion of counsel, reasonably satisfactory in form, scope
and substance, to the effect that the securities to be sold or transferred may
be sold or transferred pursuant to an exemption from such registration. No
federal or state agency has reviewed the transaction set forth herein or
approved or disapproved SUAC Shares for investment or any other purpose.
(i) The term "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations thereunder; and the term
"Applicable Laws" means any applicable state securities laws, the
Securities Exchange Act of 1934, as amended, and the rules and
regulations under the foregoing.
(ii) The following legend will be placed on the front of SUAC
Certificates representing SUAC Shares to be issued to SSGI
hereunder, and stop-transfer instructions will be issued to any
transfer agent of such SUAC Shares to insure compliance with the
provisions of the Securities Act and the Applicable Laws:
"These Shares have not been registered under the Securities Act of
1933, as amended, or under applicable state securities laws, and
they may not be offered, sold, pledged, hypothecated or otherwise
transferred in the absence of (1) effective registrations under
all such laws or (2) an opinion of counsel to the Corporation that
such registration is not required."
(c) The parties hereto agree to enter into the Registration
Rights Agreement in substantially the form attached hereto as Exhibit "2.1.",
on or before the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF UST
As an inducement to SUAC to enter into this Agreement, UST represents and
warrants to SUAC that, except as set forth in the UST disclosure letter of even
date herewith (the "UST Disclosure Letter") that:
SECTION 3.1 ORGANIZATION, QUALIFICATIONS AND CORPORATE POWER. UST is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Florida and is duly licensed or qualified to transact
business as a foreign corporation and is in good standing in each jurisdiction
in which the failure to be so licensed or qualified would have a material
adverse effect on UST and its subsidiaries taken as a whole. UST has the
corporate power and authority to own and hold its properties and to carry on its
business as presently conducted.
SECTION 3.2 AUTHORITY. UST has all requisite corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby, subject to approval of the Merger by the holders of a
majority of the UST Shares outstanding as of the record date for the meeting of
its shareholders to be held to consider and act upon the proposal to approve the
Merger. The execution and delivery of this Agreement by UST and the consummation
by UST of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of UST and no other corporate proceedings
on the part of UST are necessary to authorize this Agreement or to consummate
the transactions so contemplated, other than such approval by UST's
shareholders. The person(s) executing and
delivering this Agreement on UST's behalf have been duly and validly authorized
so to act by the Board of Directors of UST. Provided this Agreement constitutes
a valid and binding obligation of SSGI and SUAC, this Agreement constitutes a
valid and binding agreement of UST, enforceable against UST in accordance with
its terms.
SECTION 3.3 VALIDITY, ETC. On the date hereof and on the Closing Date,
neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (a) conflict with or result in the breach
of any provision of the Articles of Incorporation or By-Laws of UST, (b)
violate, conflict with or result in the breach or termination of, or otherwise
give any other contracting party the right to terminate, or constitute a default
(by way of substitution, novation or otherwise) under, or result in the
acceleration of the maturity of any payment date of any of the obligations of
UST or increase or otherwise affect the obligations of UST under the terms of,
any mortgage, bond, indenture, agreement, franchise or other instrument or
obligation to which UST is a party or by which it is bound or to which any of
its assets is subject, (c) result in the creation of any claim upon the
properties or assets of UST, (d) violate any judgment, order, injunction, decree
or award of any court, administrative agency or governmental body against, or
binding upon UST or to which the securities, property or business of it is
subject, (e) constitute a violation by UST of any law or regulation of any
jurisdiction as such law or regulation relates to it or to its securities,
property or business, (or result in a breach of any of the terms or conditions
of, constitute a default under, or otherwise cause any impairment of, any
license or permit which, whether or not cured, would have a material adverse
effect, individually or in the aggregate, whether or not insured against, on the
assets, liabilities, operations, business or prospects of UST.
SECTION 3.4 CAPITALIZATION. As of the date hereof the authorized capital
stock of UST consists exclusively of 10,000,000 shares of Common Stock, $.0001
per share par value, of which 7,500 shares are as of the date hereof, and as of
the Closing Date, validly issued and outstanding, fully paid and nonassessable.
There are no holders of subscriptions, warrants, options, convertible
securities, or other rights of any character with respect to UST securities. UST
has no obligation (contingent or other) to purchase, redeem or otherwise acquire
any of its securities or any interest therein or to pay any dividend or make any
other distribution in respect thereof.
All of the outstanding securities of UST were issued in compliance with all
applicable federal, state, local and foreign laws, rules and regulations.
SECTION 3.5 OUTSTANDING COMMITMENTS WHICH MAY EFFECT SSGI ADVERSELY. Except
for the commitments to Support Net and Merisel, UST reports that there are no
other existing material contract, agreement, instrument, franchise, mortgage,
indenture, and other commitment, whether written or oral, to which UST is a
party or by which any of its assets may be subject and which in each case is
material to UST and which has or may have an adverse effect on SSGI. With
respect to such commitments which have or may have an adverse effect on SSGI,
UST has satisfied in all material respects its liabilities and obligations which
have become due and payable thereunder, and are not in material default under
any of them.
SECTION 3.6 UST COMMITMENTS TO SSGI. Other than the consideration set forth
in Section 1.6 hereof and the obligations of and relating to Support Net, UST
has no debt or obligations due to SSGI.
SECTION 3.7 FULL DISCLOSURE. This Agreement and all documents, schedules
and certificates required to be delivered by UST to SUAC pursuant to this
Agreement do not contain any untrue statement of a material fact and do not omit
to state any material fact necessary to make the statements contained herein and
therein, in light of the circumstances in which made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SUAC
As an inducement to SSGI, as the sole shareholder of UST, to enter into
this Agreement, SUAC hereby represents and warrants to SSGI, except as set forth
in the SUAC disclosure letter of even date herewith (the "SUAC Disclosure
Letter") that:
SECTION 4.1 ORGANIZATION, QUALIFICATIONS AND CORPORATE POWER. SUAC is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Florida and is duly licensed or qualified to transact
business as a foreign corporation and is in good standing in each jurisdiction
in which the failure to be so licensed or qualified would have a material
adverse effect on SUAC and its subsidiaries taken as a whole. SUAC has the
corporate power and authority to own and hold its properties and to carry on its
business as presently conducted.
SECTION 4.2 AUTHORITY. SUAC has all requisite corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby subject to approval of the Merger by the holders of a
majority of the SUAC's shares outstanding as of the record date for the meeting
of its shareholders to be called for the purpose of considering and acting upon
a proposal to approve the Merger. The execution and delivery of this Agreement
by SUAC and the consummation by SUAC of the transactions contemplated hereby
have been duly and validly authorized by the Board of Directors of SUAC and no
other corporate proceedings on the part of SUAC are necessary to authorize this
Agreement or to consummate the transactions so contemplated other than such
approval by SUAC's shareholders. The person(s) executing and delivering this
Agreement have been duly and validly authorized so to act by the Boards of
Directors of SUAC. Assuming this Agreement constitutes a valid and binding
obligation of SSGI and UST, this Agreement constitutes a valid and binding
agreement of SUAC, enforceable against each of them in accordance with its
terms.
SECTION 4.3 VALIDITY, ETC. On the date hereof and on the Closing Date,
neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated
hereby will (a) conflict with or result in the breach of any provision of the
Articles of Organization or By-Laws of SUAC, or the Articles of Incorporation or
By-Laws of SUAC, (b) violate, conflict with or result in the breach or
termination of, or otherwise give any other contracting party the right to
terminate, or constitute a default (by way of substitution, novation or
otherwise) under, or result in the acceleration of the maturity of any payment
date of any of the obligations of any SUAC Company or increase or otherwise
affect the obligations of any SUAC Company under the terms of, any mortgage,
bond, indenture, agreement, franchise or other instrument or obligation to which
any SUAC Company is a party or by which it is bound or to which any of its
assets is subject, (c) result in the creation of any claim upon the properties
or assets of any SUAC Company, (d) violate any judgment, order, injunction,
decree or award of any court, administrative agency or governmental body
against, or binding upon any SUAC Company or to which the securities, property
or business of it is subject, (e) constitute a violation by any SUAC Company of
any law or regulation of any jurisdiction as such law or regulation relates to
it or to its securities, property or business, (or result in a breach of any of
the terms or conditions of, constitute a default under, or otherwise cause any
impairment of, any license or permit) which, whether or not cured, would have a
material adverse effect, individually or in the aggregate, whether or not
insured against, on the assets, liabilities, operations, business or prospects
of the SUAC Companies taken as a whole.
SECTION 4.4 CAPITALIZATION. As of the date hereof the authorized capital
stock of SUAC consists exclusively of 1000 shares of Common Stock, 0.01 par
value and are as of the date hereof, and as of the Closing Date, validly issued
and outstanding, fully paid and nonassessable. There are no holders of
subscriptions, warrants, options, convertible securities, or other rights of any
character with respect to SUAC securities. SUAC has no obligation (contingent or
other) to purchase, redeem or otherwise acquire any of its securities or any
interest therein or to pay any dividend or make any other distribution in
respect thereof.
All of the outstanding securities of SUAC were issued in compliance with
all applicable federal, state, local and foreign laws, rules and regulations,
and none of such securities were issued in violation of, or are subject to, any
preemptive rights.
All shares of SUAC Common Stock deliverable hereunder shall be voting
stock, duly authorized, validly issued, fully paid and nonassessable, free and
clear of all claims.
SECTION 4.5 FULL DISCLOSURE. This Agreement and all documents, schedules
and certificates required to be delivered by SUAC pursuant to this Agreement do
not contain any untrue statement of a material fact and do not omit to state any
material fact necessary to make the statements contained herein and therein, in
light of the circumstances in which made, not misleading.
ARTICLE V
COVENANTS
SECTION 5.1 CONDUCT OF BUSINESS. Except as contemplated by this Agreement
or as consented to in writing by the other parties hereto, during the period
from the date of this Agreement to the Effective Time, UST and SUAC shall
conduct their respective operations and affairs according to their ordinary and
usual courses of business consistent with past practices. Without limiting the
generality of the foregoing, and except as otherwise expressly provided in this
Agreement or as consented to in writing by the other parties hereto, prior to
the Effective Time, neither UST nor SUAC shall, except as contemplated by the
Disclosure Letters, (i) issue, sell or pledge, or authorize or propose the
issuance, sale or pledge of (A) additional shares of capital stock of any class
or securities convertible into any such shares or (B) any rights, warrants or
options to acquire any such shares or other convertible securities, or grant or
accelerate any right to convert or exchange any securities for shares of capital
stock; (ii) redeem, purchase or otherwise acquire, or propose to redeem,
purchase or otherwise acquire, any of its outstanding securities; (iii) declare,
set aside, make or pay any dividend or distribution (whether in cash, stock or
property) on or in respect of any shares of capital stock; (iv) except as
contemplated by the Disclosure Letters and except for sales and purchases of
inventory in the ordinary course of business, make any acquisition of assets or
securities, any disposition of assets or securities or any change in
capitalization; (v) enter into any contract or release or relinquish any
contract or other rights in excess of $10,000 in amount; (vi) incur any
long-term debt for borrowed money or any short-term debt for borrowed money
other than in the ordinary course of business consistent with past practice in
excess of $10,000 in amount; (vii) propose or adopt any Charter or By-Laws
amendments; (viii) other than as contemplated or permitted by this Agreement,
enter into any new employment agreements with any directors, officers or
employees or grant any increases in the compensation or benefits to, or agree to
pay any bonus, severance or termination payment or other special compensation
to, directors, officers and employees other than scheduled merit increases in
the ordinary course of business consistent with past practice; (ix) make any
loan or advance to any of its directors, officers, employees, consultants, or
agents or to any member of their families or any other loan or advance otherwise
than in the ordinary course of business consistent with past practices; (x) make
or incur any charitable contributions or any nonbusiness expense; or (xi) agree
in writing or orally to take any of the foregoing actions or any other action
which would make any representation or warranty in this Agreement untrue on the
date hereof or on the Closing Date.
SECTION 5.2 NO SOLICITATION OR DISCUSSION. Except for the transactions
contemplated by this Agreement and as described in Section 5.1, the parties
hereto shall use their best efforts to cause their directors, officers,
employees, representatives, agents and affiliates not to, directly or
indirectly, encourage, solicit, initiate or participate in any way in
discussions or negotiations with, or knowingly provide any information to, any
person (other than the parties to this Agreement or any affiliate thereto
concerning any merger, purchase or sale of assets, purchase or sale of
securities, exchange offer, consolidation, combination or similar transaction
involving UST or SUAC. SUAC or UST shall promptly communicate to the other
parties hereto the terms of any proposal or inquiry which it may receive, or of
any such information requested from it or of any such negotiations or
discussions being sought to be initiated with it in respect of any such
transaction.
SECTION 5.3 ACCESS TO INFORMATION.
(a) Between the date of this Agreement and the Effective Time, each
party shall (i) give to the other and its authorized representatives access
during regular business hours upon reasonable notice to such party's plants,
offices, warehouses and other facilities and to all of its books and records,
(ii) permit the other and its authorized representatives to make such
inspections as it may require, (iii) cause its officers and those of its
subsidiaries to furnish the other and its authorized representatives with such
financial and operating data and other information with respect to its business
and properties and that of its subsidiaries as such party may from time to time
request, (iv) furnish such party promptly with a copy of each report, schedule
and other documents filed or received by it pursuant to federal or state
securities law, if any, and (v) notify the other promptly in writing of the
occurrence of any event or the existence of any circumstance which would have
made any of its representations and warranties set forth herein untrue. No
information provided pursuant to this Section 5.3 or otherwise, nor any
investigation by any party, shall affect or be deemed to modify any
representation or covenant herein contained.
(b) SSGI, UST and SUAC agree that, in the event that the transactions
contemplated hereby shall not be consummated, each will treat in confidence all
documents, materials and other information which either shall have obtained
during the course of the negotiations leading to this Agreement, the
investigation of the other party hereto and the preparation of this Agreement
and other documents relating to this Agreement, and shall return to the other
party all copies of non-public documents and materials which have been furnished
in connection therewith.
SECTION 5.4 REASONABLE BEST EFFORTS. Subject to the terms and conditions
hereof, each of the parties hereto agrees to use its reasonable best efforts to
take, or cause to be taken, all appropriate action, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement. In case at any time after the Effective Time any further action
is necessary or useful to carry out the purposes of this Agreement, the parties
shall use their reasonable best efforts to cause their respective proper
officers, employees and representatives to take all such necessary action.
SECTION 5.5 SHAREHOLDERS AND DIRECTORS MEETINGS. UST and SUAC shall
promptly take all action necessary in accordance with the laws of their states
of incorporation, their Articles of Incorporation and By-Laws to convene a
meeting of its shareholders and directors to consider and vote on the Merger.
SECTION 5.6 PUBLIC ANNOUNCEMENTS. UST, SUAC and SSGI shall to the
fullest extent practicable consult with one another before issuing any press
release or otherwise making any public statement with respect to the Merger and
shall not issue any such press release or make any such public statement prior
to such consultation, except as may be required by law after consultation with
counsel.
ARTICLE VI
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 6.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligations of each party to effect the Merger are subject to the
satisfaction or waiver, where permissible, as of the Effective Time, of the
following conditions:
(a) The Merger shall have been approved by the affirmative vote of the
shareholders of UST and SUAC by the votes respectively required;
(b) no statute, rule, regulation, order, decree or injunction shall
have been enacted, entered, promulgated or enforced by any court or governmental
authority which is in effect and has the effect of prohibiting or delaying the
consummation of the Merger;
SECTION 6.2 CONDITIONS TO OBLIGATIONS OF UST TO EFFECT THE MERGER. The
obligation of UST to effect the Merger is further subject to the satisfaction as
of the Effective Time, of the following conditions, each of which may be waived
by UST in its sole discretion:
(a) the representations and warranties of the SUAC Companies set forth
in this Agreement shall be true in all material respects as if made at the
Effective Time and SUAC shall have performed all obligations and covenants
required by the Agreement to be performed or complied with by it.
(b) All proceedings in connection with the transactions contemplated
hereby, and all legal matters, documents and instruments incident thereto, shall
be reasonably satisfactory in substance and in form to UST and its counsel, and
UST and its counsel shall have received all such documents and instruments, or
copies thereof, certified if requested, as may be reasonably requested.
SECTION 6.3. CONDITIONS TO OBLIGATIONS OF SUAC TO EFFECT THE MERGER. The
obligations of SUAC to effect the Merger is further subject to the satisfaction
on or prior to the Effective Time, of the following conditions, each of which
may be waived by SUAC in its sole discretion:
(a) The representations and warranties of UST set forth in this
Agreement shall be true in all material respects as if made at the Effective
Time and UST shall have performed all obligations and covenants required by the
Agreement to be performed or complied with by it.
(b) All proceedings in connection with the transactions contemplated
hereby, and all legal matters, documents and instruments incident thereto, shall
be reasonably satisfactory in substance and in form to SUAC and its Counsel, and
SUAC and its counsel shall have received all such documents and instruments, or
copies thereof, certified if requested, as may be reasonably requested.
ARTICLE VII
TERMINATION; AMENDMENT; WAIVER
SECTION 7.1 TERMINATION. This Agreement may be terminated and the Merger
contemplated hereby may be abandoned at any time prior to the Effective Time,
notwithstanding approval thereof by the shareholders of UST and SUAC:
(a). by mutual written consent duly authorized by the Boards of
Directors of SUAC and SSGI;
(b). by SUAC or SSGI if:
(i) any court of competent jurisdiction or other
governmental body shall have issued an order, decree or ruling, or
taken any other action restraining, enjoining or otherwise
prohibiting the Merger or any portion thereof, provided that the
Agreement shall not be terminated pursuant to this paragraph
unless the party terminating this Agreement has utilized its
reasonable best efforts to oppose the issuance of such order,
decree or ruling or the taking of such action;
(ii) any of the conditions specified in Section 6.1 shall
not be satisfied; or
(iii) the Merger shall not have been consummated on or
prior to March 11, 1998, or such later date as may be agreed upon
by the parties, for any reason other than the breach of any
provision of this Agreement by the party terminating this
Agreement; or
(iv) the other party willfully breaches any of its material
representations, warranties or covenants contained herein and, if
such breach is curable, it is not cured within five business days
after written notice thereof.
(c) by SSGI on account of the failure of any condition specified
in Section 6.2; or
(d) by SUAC on account of the failure of any condition specified
in Section 6.3.
Upon the occurrence of any of the events specified in this Section 7.1
(other than by mutual written consent) and the determination of a party to
terminate this Agreement, written notice of termination shall forthwith be given
by the terminating party to the other, whereupon this Agreement shall terminate.
SECTION 7.2 EFFECT OF TERMINATION. In the event of the termination of this
Agreement pursuant to Section 7.1, this Agreement shall forthwith become void
and of no further effect, without
any liability on the part of any party or its directors, officers, shareholders
or representatives (except for the provisions of Sections 5.3(b), 7.1, and 8.10,
which shall remain in effect). Nothing in this Section shall relieve any party
to this Agreement of liability for breach of this Agreement.
SECTION 7.3 AMENDMENT. To the extent permitted by applicable law, this
Agreement may be amended by action taken by or on behalf of the Boards of
Directors of UST and SUAC at any time before or after approval of this Agreement
by the shareholders of UST and SUAC. This Agreement may not be amended except by
an instrument in writing signed on behalf of the parties by their duly
authorized representatives.
SECTION. 7.4 EXTENSION; WAIVER. At any time prior to the Effective Time,
the parties hereto, by action taken by or on behalf of the respective Boards of
Directors of SSGI and SUAC may (i) extend the time for the performance of any of
the obligations or other acts of the other party, (ii) waive any inaccuracies in
the representations and warranties contained herein by the other party or in any
document, certificate or writing delivered pursuant hereto by or on behalf of
the other party or (iii) waive compliance with any of the agreements or
conditions contained herein, if permitted by applicable law. Any agreement on
the part of any party to any such extension or waiver shall be valid only if set
forth in an instrument in writing signed on behalf of such party by its duly
authorized representative.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties contained in this Agreement shall survive after the Effective
Time for a period of two (2) years. This Section 8.1 shall not limit any
covenant or agreement of the parties hereto which by its terms contemplates
performance after the Effective Time.
SECTION 8.2 ENTIRE AGREEMENT, ASSIGNMENT. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties or any of them with respect to the subject matter hereof.
SECTION 8.3 ENFORCEMENT OF THE AGREEMENT. Each of the parties acknowledges
and agrees that the rights acquired by the other hereunder are unique and that
immediate, severe and irreparable damage would occur in the event that any of
the provisions of this Agreement to be performed by it were not performed in
accordance with its specific terms or were otherwise breached. Accordingly each
party agrees that the other shall be entitled to an injunction or injunctions
and other appropriate equitable relief to prevent breaches of this Agreement by
it and to enforce specifically the terms and provisions hereof in any federal or
state court of competent jurisdiction, this being in addition to any other
remedy to which the parties may be entitled at law or in equity or otherwise.
SECTION 8.4 VALIDITY. The invalidity or unenforceability of any provision
of this Agreement under any circumstances shall not affect the validity or
enforceability of the same provision under other circumstances or of any other
provision of this Agreement, all of which shall remain in full force and effect.
SECTION 8.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by cable, telegram, telecopier or telex, or
by registered or certified mail (postage prepaid, return receipt requested) to
the respective parties as follows:
If to SUAC and/or UST:
0000 Xxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
With a copy to:
Johnson, Blakely, Pope, Bokor, Xxxxxx & Xxxxx, P.A.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esquire
If to SSGI:
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
With a copy to:
Palmarella & Xxxxxxx, P.C.
0 Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esquire
or to such other address as the party to whom notice is given may have
previously furnished to the other in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereto.
SECTION 8.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the substantive law of the State of Delaware
regardless of the laws that might otherwise govern under principles of conflicts
of laws applicable thereto, except the effectiveness of the statutory merger
contemplated hereby shall be governed by and construed in accordance with the
FBCL.
SECTION 8.7 DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
SECTION 8.8 PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to confer upon any other person any rights or
remedies of any nature whatsoever under or by reason of this Agreement. Nothing
in this Agreement shall be construed to create any rights or obligations except
among the parties hereto, and no person or entity shall be regarded as a
third-party beneficiary of this Agreement.
SECTION 8.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
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SECTION 8.10 EXPENSES. All costs and expenses incurred in connection with
the transactions contemplated by this Agreement shall be paid by the party
incurring such expenses.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all at or on
the day and year first above written.
Attest: U.S. TECHNOLOGIES, INC.
/s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
__________________________ ____________________________
Xxxxx X. Xxxxxx, Secretary Xxxxx Xxxxxx, President
Attest: STRATEGIC SOLUTIONS GROUP, INC.
/s/ XXXX X. XXXXXXX By: /s/ XXXX X. XXXXXXX
__________________________ ____________________________
Xxxx X. Xxxxxxx, Secretary Xxxx X. Xxxxxxx, President
Attest: SSGI-UST ACQUISITION CORPORATION
/s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
__________________________ ____________________________
Xxxxx X. Xxxxxx, Secretary Xxxxx X. Xxxxxx, President
