Exhibit 10.1
PURCHASE AGREEMENT
Purchase Agreement (the "Agreement") made this day of ,
1999, by and between TDA Industries, Inc., a New York corporation, with an
office at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter the "Seller"), and Eagle Supply Group, Inc., a Delaware
corporation, with an office at 000 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx,
Xxx Xxxx 00000 (hereinafter the "Buyer").
WITNESSETH:
WHEREAS, Seller is the owner of all the issued and outstanding capital
stock of (a) Eagle Supply, Inc., a Florida corporation, with an office at 0000
Xxxxxxxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000 (hereinafter "Eagle"), (b) JEH/Eagle
Supply, Inc., a Delaware corporation, with an office at 0000 X.X. Xxxxxxx 000,
X.X. Xxx 000, Xxxxxxxxx, Xxxxx 00000 (hereinafter "JEH Eagle"), and (c)
MSI/Eagle Supply, Inc., a Delaware corporation, with an office at 0000 X.X.
Xxxxxxx 000 X, Xxxxxxxxx, Xxxxx 00000 (hereinafter "MSI Eagle"); and
WHEREAS, Seller hereby agrees to sell and deliver to Buyer, and Buyer
agrees to purchase, all of the issued and outstanding capital stock of Eagle,
JEH Eagle and MSI Eagle; and
WHEREAS, Buyer has filed a registration statement on Form S-1 (such
registration statement and the financial statements contained therein and all
amendments and exhibits thereto are hereinafter referred to as the "Registration
Statement") for an underwritten public offering of its equity securities
pursuant to which it will derive gross proceeds of not less than $12,800,000
(the "Public Offering").
NOW, THEREFORE, in consideration of the promises and the
representations, warranties, covenants and agreements contained in this
Agreement, each of the parties hereto hereby agrees as follows:
ARTICLE I
RECITALS
Recitals. The parties confirm that each of the foregoing
recitations are true and correct in all respects and are incorporated herein.
ARTICLE II
THE EAGLE SHARES, JEH EAGLE SHARES AND MSI EAGLE SHARES
Eagle Shares, JEH Eagle Shares and MSI Eagle Shares. Seller shall sell
to Buyer (a) Five Hundred Ninety Three (593) restricted shares of Eagle's common
stock (the "Eagle Shares"), (b) Three Thousand (3,000) restricted shares of JEH
Eagle's common stock (the "JEH Eagle Shares") and (c) Three Thousand (3,000)
restricted shares of MSI Eagle's Common Stock (the "MSI Eagle Shares"),
representing all of the issued and outstanding capital stock of Eagle, JEH Eagle
and MSI Eagle, respectively, for the consideration specified in Article IV
below.
ARTICLE III
CLOSING
The Closing. Simultaneously with a closing of the Public Offering, the
closing of this Agreement and the transactions contemplated hereby (the
"Closing") are to take place simultaneously with the delivery of the documents
evidencing consideration for the transactions contemplated herein as set forth
in Article IV below at the law offices of Xxxxx X. Xxxxxx, Esq., 0000 Xxxxxx
Xxxx, Xxxxx 000X, Xxxx Xxxxx, Xxxxxxx 00000, or at such location as the parties
hereto may agree upon. The date upon which the Closing occurs is herein referred
to as the "Closing Date".
ARTICLE IV
CONSIDERATION
4.1 Eagle Shares, JEH Eagle Shares and MSI Eagle Shares. At the
Closing, the Seller will deliver to Buyer certificates for the Eagle Shares,
JEH Eagle Shares and MSI Eagle Shares duly executed by each of their authorized
officers in proper form for transfer to Buyer.
4.2 Buyer's Shares. At the Closing, the Buyer will deliver to Seller
certificate(s) representing 3,000,000 shares of Buyer's common stock ($.0001 par
value per share), duly executed by its authorized officers and in proper form
for transfer to Seller (the "Buyer's Shares").
4.3 Book Value. At the Closing, Eagle, JEH Eagle and MSI Eagle will
have a combined book value of not less than $1,000,000 (net of the cancellation
of indebtedness of Seller to Eagle as set forth in Section 4.4 below). In the
event Eagle, JEH Eagle and MSI Eagle do not have a combined book value of at
least $1,000,000 (as determined by the internal financial records of each of
Eagle, JEH Eagle and MSI Eagle to be reviewed and determined within forty-five
(45) days after the Closing) at the Closing, Seller agrees to
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deliver to Eagle, JEH Eagle and/or MSI Eagle, within forty-five (45) days after
the Closing, sufficient funds by certified check or wire transfer to achieve the
foregoing $1,000,000 book value requirement as of the Closing Date.
4.4 Dividend. At the Closing, the parties agree to cause Eagle to
cancel, by way of a non-cash dividend, all indebtedness of Seller to Eagle (the
"Dividend").
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
5.1 Representations and Warranties of Seller. Except as and/or to
the extent disclosed in the Registration Statement for the Public Offering as
filed with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"), true copies of which
Registration Statement have been and/or will be delivered by Seller to Buyer
as a material inducement to Buyer to execute and perform its obligations
under this Agreement, Seller represents and warrants to Buyer as of the date
hereof, as follows:
A. Organization and Good Standing--Compliance. Eagle,
JEH Eagle and MSI Eagle are duly organized, validly existing and in good
standing under the laws of their respective states of incorporation, with full
power and authority to own or lease and operate each of their properties and
assets, material to the operation of each of their businesses, and to carry on
each of their businesses as presently being conducted, and have obtained all
licenses, permits or other authorizations and have taken all actions required by
applicable law or governmental regulations, material to the operation of each of
their businesses, to conduct each of their businesses. Seller has received no
notice of, and does not know of, any violation of any applicable regulation,
ordinance or other law, order, or governmental requirement, material to the
operation of each of their businesses. True copies of the Articles of
Incorporation and By-Laws certified by the Secretaries of Eagle, JEH Eagle and
MSI Eagle, and true copies of all corporate minutes of Eagle, JEH Eagle and MSI
Eagle have been made available to or delivered to Buyer, including all
amendments thereto.
B. Eagle's Capitalization. Eagle's total authorized capital
stock is Fifteen Hundred (1,500) shares of common stock (par value $100.00 per
share), of which Five Hundred Ninety Three (593) shares of common stock are
issued and outstanding.
C. JEH Eagle's Capitalization. JEH Eagle's total authorized
capital stock is Three Thousand (3,000) shares of common stock (par value $.01
per share), all of which shares are issued and outstanding.
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D. MSI Eagle's Capitalization. MSI Eagle's total authorized
capital stock is Three Thousand (3,000) shares of common stock (par value $.01
per share), all of which shares are issued and outstanding.
E. Liens and Encumbrances. There are no liens, encumbrances,
pledges, probational agreements or claims of any nature against the Eagle
Shares, JEH Eagle Shares or MSI Eagle Shares to be delivered to Buyer by Seller.
F. Securities Law. The Eagle Shares, JEH Eagle Shares and MSI
Eagle Shares are validly issued, fully paid and non-assessable and were offered
and sold in accordance with applicable federal and state securities laws or
applicable exceptions thereunder, and there are no preemptive rights in respect
thereof. There are no outstanding options, warrants, rights, calls, puts,
commitments, plans or other agreements of any character providing for the
purchase or issuance of any authorized but unissued capital stock of Eagle,
JEH Eagle or MSI Eagle.
G. Financial Statements. Eagle's, JEH Eagle's and MSI
Eagle's financial statements contained in the Registration Statement
represent accurately and fairly the financial condition and results of the
operations of Eagle, JEH Eagle and MSI Eagle at the respective dates or for
the respective periods covered thereby in accordance with generally accepted
accounting principles applied on a consistent basis or in accordance with the
descriptions relating to such financial statements as set forth in the
Registration Statement.
H. Books and Records. The books and records of Eagle, JEH
Eagle and MSI Eagle reflect all of the material debts, liabilities and
obligations of any nature (whether absolute, accrued or otherwise, and
whether due or to become due) of Eagle, JEH Eagle and MSI Eagle at the dates
thereof. There are no contingent liabilities of Eagle, JEH Eagle or MSI Eagle
of a material nature, other than as reflected in such books and records and
the Registration Statement, and none of Eagle, JEH Eagle or MSI Eagle have
given any guarantees of the obligations of any other person or entity other
than as reflected in the Registration Statement.
I. Absence of Undisclosed Liabilities. None of Eagle, JEH
Eagle or MSI Eagle have any material liabilities, whether accrued, absolute,
contingent, or otherwise, including without limitation, tax liabilities due
or to become due, and whether incurred in respect of or measured by either of
their incomes except as reflected in the Registration Statement or incurred
subsequent to the date of the financial statements set forth in the
Registration Statement in the ordinary course of either of their businesses.
Seller does not know or have reasonable grounds to know of any basis for the
assertion against Eagle, JEH Eagle or MSI
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Eagle of any material liability not fully reflected in the Registration
Statement or reserved against.
J. Title to Properties. Eagle, JEH Eagle and MSI Eagle each
have good and marketable title to their respective assets, including those
reflected in the Registration Statement (except as may be sold, exchanged or
otherwise disposed of in the ordinary course of business). None of Eagle's, JEH
Eagle's or MSI Eagle's assets are subject to any material security interest,
mortgage, pledge, lien, encumbrance, or charge except as disclosed in the
Registration Statement as securing specified liabilities set forth therein.
K. Subsidiaries. None of Eagle, JEH Eagle or MSI Eagle
have any material subsidiaries or material interest in any other corporation,
firm, partnership or other entity.
L. Power and Authority. Seller has full power to sell and
deliver the Eagle Shares, JEH Eagle Shares and MSI Eagle Shares upon the
terms set forth herein. There is no agreement to issue any additional shares
of Eagle, JEH Eagle or MSI Eagle or to redeem, purchase or otherwise acquire
any of the Eagle Shares, JEH Eagle Shares or MSI Eagle Shares. Upon delivery
of the Eagle Shares, JEH Eagle Shares and MSI Eagle Shares, the Buyer will
receive good and marketable title thereto, free and clear of all liens,
encumbrances, equities and claims whatsoever and subject only to the
restrictions of state and federal securities laws.
M. Tax Returns and Payments. Each of Eagle, JEH Eagle and
MSI Eagle have duly filed all tax returns, tax reporting forms and reports
required to be filed by each of them, and have paid all taxes, assessments,
governmental charges and payments to third party payors which were due and
payable. None of Eagle, JEH Eagle or MSI Eagle has entered into any
agreement, waiver or other arrangement providing for an extension of time
with respect to the filing of any tax return or the payment or assessment of
any tax, governmental charge, deficiency or third party payment relating to
any of them. Each of Eagle, JEH Eagle and MSI Eagle have withheld from each
payment to each of their employees the amount of all taxes (including but not
limited to United States federal income taxes, applicable state and municipal
income taxes, Federal Insurance Contribution Act contributions and all other
mandated employee taxes or contributions) legally required to be withheld
therefrom and has paid the same to the proper tax receiving offices, except
for such amounts withheld but not yet payable, if any.
N. Tax Returns. Each of Eagle, JEH Eagle and MSI Eagle
have duly filed all reports or returns required to be filed with governmental
authorities relating in any manner to their respective properties, which the
failure to file may materially adversely affect the operation of their
respective businesses.
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O. Insurance. Each of Eagle, JEH Eagle and MSI Eagle
maintains in full force and effect all policies of insurance and any renewals
thereof and has given all notices and presented all claims, if any, under all
policies of insurance when due, except as reflected in the Registration
Statement.
P. Mortgages, Liens and Encumbrances. None of Eagle, JEH
Eagle or MSI Eagle have mortgaged, pledged, hypothecated or otherwise
encumbered any of its assets, tangible or intangible, material to the
operation of its business, except as set forth in the Registration Statement.
Q. No Asset Sale. None of Eagle, JEH Eagle or MSI Eagle
has entered into or agreed to enter into any agreement or arrangement
granting any rights to purchase any of its assets material to the operation
of its business other than in the ordinary course of its respective business.
R. Capital Expenditures. None of Eagle, JEH Eagle or MSI
Eagle has made any commitment for capital expenditures of a material nature
that is not in the ordinary course of its respec-tive business.
S. Material Agreements. None of Eagle, JEH Eagle or MSI
Eagle has entered into, become a party to, waived any right under, amended or
cancelled any material contract, agreement or commitment nor has there been
any material defaults thereunder except as reflected in the Registration
Statement or except in the ordinary course of its respective business.
T. Material Obligations. Each of Eagle, JEH Eagle and MSI
Eagle has paid all of its respective material obligations to third parties,
including vendors, in a timely manner in the ordinary course of business.
U. No Financial Changes. Since the respective dates of the
financial statements contained in the Registration Statement, there has been
no material change in the condition or general affairs of Eagle, JEH Eagle or
MSI Eagle, financial or otherwise, other than as contemplated by this
Agreement or reflected in the Registration Statement.
V. No Suits Pending or Imminent. Except as may be
immaterial to Eagle, JEH Eagle or MSI Eagle, their respective businesses,
financial condition and results of operations, there are no actions at law or
equity or administrative proceedings pending or threatened against Eagle, JEH
Eagle or MSI Eagle in which Eagle, JEH Eagle or MSI Eagle is a plaintiff,
defendant, petitioner, indemnifier, or respondent, or in which it is
anticipated that Eagle, JEH Eagle or MSI Eagle will join or be joined as a
party.
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W. Copies of Tax Returns. Seller has delivered to Buyer
true and correct copies of each federal and state tax return (or outstanding
extension, if any) filed by (i) Eagle during the period of time commencing on
July 1, 1993 through the Closing of this Agreement, (ii) JEH Eagle during the
period of time commencing with its corporate existence through the Closing of
this Agreement and (iii) MSI Eagle during the period of time commencing with
its corporate existence through the Closing of this Agreement.
X. Compliance with Law. The business and operations of
Eagle, JEH Eagle and MSI Eagle have been and are being conducted in
accordance with all applicable laws, rules and regulations.
Y. No Default of Contracts, Employee Obligations,
Contractual Obligations or Organizational Documents. None of the contracts,
or obligations or liabilities, material to Eagle's, JEH Eagle's or MSI
Eagle's business operations, is in default. All such contracts are valid and
binding obligations of the parties thereto in accordance with their
respective terms, there have been no amendments or modifications thereto not
reflected in the books and records of either Eagle, JEH Eagle or MSI Eagle,
and there are no known material liabilities of the parties thereto arising
from any breach of or default in any provision thereof by any party thereto
except as may be disclosed in the books and records of Eagle, JEH Eagle or
MSI Eagle or in the Registration Statement. None of Eagle, JEH Eagle or MSI
Eagle is in default under any agreement, contract or instrument, material to
its business operations, which require services to be performed, and no claim
of default has been made or threatened by or against Eagle, JEH Eagle or MSI
Eagle with respect to any such agreement, contract or instrument. None of
Eagle, JEH Eagle or MSI Eagle is in violation of its Articles of
Incorporation, By-Laws or other organizational documents.
Z. Agreement Creating Default or Acceleration. Except as
reflected in the Registration Statement or contemplated by this Agreement,
the execution, delivery and performance of this Agreement and of each and
every agreement, document and instrument and the consummation of the
transactions contemplated hereby and thereby do not and will not (i)
constitute a breach or default (or an occurrence which by lapse of time
and/or by the giving of notice would constitute a breach or default) under
any agreement, lease, license, franchise, contract or commitment to which
Seller, Eagle, JEH Eagle or MSI Eagle is a party or by which any of them or
their properties or assets is bound; (ii) result in the creation or the
imposition of any lien, encumbrance, security interest or charge in favor of
any other party upon any of the properties or assets of Seller, Eagle, JEH
Eagle or MSI Eagle; or (iii) result in the cancellation or termination of, or
the acceleration of the performance of any obligations or of any indebtedness
under any contract, agreement, commitment, indenture, mortgage, note, bond,
license or other instrument or obligation to which Seller, Eagle,
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JEH Eagle or MSI Eagle is now a party or by which Seller, Eagle, JEH Eagle or
MSI Eagle or any of their respective properties or assets may be bound or
affected.
5.2 Investment Intent. Seller is acquiring Buyer's shares for its
own account, for investment only and not with a view to the distribution or
resale thereof. Seller and its officers and directors have such knowledge and
experience in financial and business matters that they are capable of
evaluating the merits and risks of Seller's purchasing the Buyer's Shares;
and Seller understands that none of the Buyer's Shares have been registered
for resale under the Act. Seller is fully aware of the fact that Buyer is
relying upon this investment representation, and Seller hereby represents
that it will not pledge, hypothecate, offer, sell, transfer, assign or
otherwise dispose of the Buyer's Shares except in compliance with the
provisions of the Act.
Seller acknowledges that the certificate(s) for the Buyer's Shares will
be legended to indicate that the Buyer's Shares represented thereby have not
been registered under the Act, the Buyer's Shares were acquired for investment
and may not be pledged, hypothecated, sold or transferred in the absence of a
registration statement effective under the Act for said shares or an opinion of
counsel satisfactory to Buyer that registration is not required under the Act,
and that "stop transfer" instructions with respect to the Buyer's Shares will be
maintained by the transfer agent for Buyer and/or on Buyer's stock transfer
records.
5.3 Accuracy of Representations. To the best of Seller's knowledge
and belief, no representation or warranty in this Article V or elsewhere in
this Agreement, or in any certificate or document furnished or to be
furnished by Seller pursuant hereto, contains any untrue statement of a
material fact or omits to state a material fact necessary to make the
statements contained herein or therein not misleading. To the best of
Seller's knowledge and belief, all facts have been disclosed in the
Registration Statement regarding matters that would materially adversely
affect Eagle, JEH Eagle, MSI Eagle or any of their business operations.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
6. Representations and Warranties of Buyer. Except as disclosed in
the Registration Statement, as a material inducement to Seller to execute and
perform its obligations under this Agreement, Buyer represents and warrants
to Seller as of the date hereof as follows:
A. Investment Intent. Buyer is acquiring the Eagle Shares,
JEH Eagle Shares and MSI Eagle Shares for its own account, for investment
only and not with a view to the distribution or
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resale thereof. Buyer (and its officers and directors) have such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of purchasing the Eagle Shares, the JEH Eagle Shares and
the MSI Eagle Shares; and Buyer understands that none of the Eagle Shares, the
JEH Eagle Shares and the MSI Eagle Shares have been registered for resale under
the Act. Buyer is fully aware of the fact that Seller is selling the Eagle
Shares, the JEH Eagle Shares and the MSI Eagle Shares in reliance upon the
exemption provided in Section 4(2) of the Act and is relying upon this
investment representation, and Buyer hereby represents that it will not pledge,
hypothecate, offer, sell, transfer, assign or otherwise dispose of the Eagle
Shares, the JEH Eagle Shares or the MSI Eagle Shares except in compliance with
the provisions of the Act.
Buyer acknowledges that the certificate(s) for the Eagle
Shares, the JEH Eagle Shares and the MSI Eagle Shares will be legended to
indicate that such shares represented thereby have not been registered under the
Act, as amended, such shares were acquired for investment and may not be
pledged, hypothecated, sold or transferred in the absence of a registration
statement effective under the Act for the Eagle Shares, the JEH Eagle Shares and
the MSI Eagle Shares or an opinion of counsel that registration is not required
under the Act, and that "stop transfer" instructions with respect to such shares
will be maintained by the transfer agent for Eagle, JEH Eagle and/or MSI Eagle
and on Eagle's, JEH Eagle's and MSI Eagle's stock transfer records.
B. Agreement Creating Default or Acceleration. The
execution, delivery and performance of this Agreement and of each and every
agreement, document and instrument and the consummation of the transactions
contemplated hereby and thereby do not and will not (i) constitute a breach
or default (or an occurrence which by lapse of time and/or by the giving of
notice would constitute a breach or default) under any agreement, lease,
license, franchise, contract or commitment to which Buyer is subject or party
or by which its properties or assets are bound; (ii) result in the creation
or the imposition of any lien, encumbrance, security interest or charge in
favor of any other party upon any of Buyer's properties or assets; or (iii)
result in the cancellation or termination of, or the acceleration of the
performance of any obligations or of any indebtedness under any contract,
agreement, commitment, indenture, mortgage, note, bond, license or other
instrument or obligation to which Buyer is now a party or by which Buyer or
its properties or assets may be bound or affected, except as reflected in the
Registration Statement or contemplated by this Agreement.
C. Authority of Buyer. Buyer has full power and authority
to enter into this Agreement and to perform each and every obligation
hereunder.
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D. Accuracy of Representations. To the best of Buyer's
knowledge and belief, no representation or warranty in this Article VI, the
Registration Statement or elsewhere in this Agreement, or in any certificate
or document furnished or to be furnished by Buyer pursuant hereto, contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements contained herein or therein not misleading.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS
Survival of Representations and Warranties. All the representations,
warranties, covenants and agreements made by Buyer, Eagle, JEH Eagle, MSI Eagle
and Seller in this Agreement (including statements contained in any exhibit,
certificate or other instrument delivered by or on behalf of any party hereto or
in connection with the transactions contemplated hereby) shall survive for a
period of two years following the consummation of the Agreement. No performance
or execution of this Agreement in whole or in part by any party hereto, no
course of dealing between or among the parties hereto or any delay or failure on
the part of any party in exercising any rights hereunder or at law or in equity,
and no investigation by any party hereto shall operate as a waiver of any rights
of such party, except to the extent expressly waived in writing by such party.
ARTICLE VIII
CLOSING OBLIGATIONS OF THE PARTIES
8.1 Documents to be Delivered to Buyer by Seller. At the Closing,
Seller shall deliver or cause the following to be delivered to Buyer:
(A) Certificates representing the Eagle Shares, JEH Eagle
Shares and MSI Eagle Shares;
(B) All books, records, minute books, ledgers, instruments,
agreements, contracts, tax returns and all other documents of whatsoever
description of, relating to or concerning Eagle, JEH Eagle and MSI Eagle;
(C) A copy of certified resolutions of Seller's Board of
Directors authorizing the execution and delivery of this Agreement; and
(D) A certificate executed by Seller's chief financial
officer affirming the estimated amount of the combined book value of Eagle,
JEH Eagle and MSI Eagle at the Closing Date.
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8.2 Documents to be Delivered to Seller by Buyer.
(A) Certificates representing the Buyer's Shares;
(B) A copy of certified resolutions of Buyer's Board of
Directors authorizing the execution and delivery of this Agreement;
(C) A Certificate executed by Buyer's Chief Executive
Officer that a closing of the Public Offering is occurring simultaneous with
the Closing of this transaction; and
(D) Documents, satisfactory to the Seller, confirming the
Dividend identified in Section 4.4.
ARTICLE IX
POST CLOSING OBLIGATIONS
9.1 Seller agrees to indemnify Eagle for any payments that Eagle is
obligated to make in connection with the properties identified on Schedule I
in excess of Eagle's lease obligations to Seller or any of its subsidiaries,
all as set forth in the Registration Statement.
9.2 Seller will fulfill its obligations, if any, as set forth in
Section 4.3. and shall deliver to Buyer, not later than forty-five (45) days
after the Closing, a certificate executed by Seller's chief financial officer
affirming the amount of the combined book value of Eagle, JEH Eagle and MSI
Eagle at the Closing Date.
ARTICLE X
MISCELLANEOUS
10.1 Entire Agreement--Amendments. This Agreement and any
agreements or instruments executed pursuant hereto or concurrently herewith
contain the entire agreement between the parties hereto with respect to the
transactions contemplated by this Agreement and supersede all prior
agreements, writings, negotiations and understandings. This Agreement
contains all of the covenants, representations, warranties and agreements
between the parties with respect to the subject matter of this Agreement, and
each party to this Agreement acknowledges that no representations,
warranties, covenants, inducements, promises or agreements, oral or
otherwise, have been made by any party, or anyone acting on behalf of any
party, which are not embodied herein, and no other or prior agreement,
statement, representation, warranty or covenant not contained in this
Agreement shall be binding or valid.
10.2 Headings. The headings or captions in this Agreement are for
convenience and reference only and do not form a part hereof
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and do not in any way modify, interpret or construe the intent of the parties
or affect any to the provisions of this Agreement.
10.3 Binding on Successors. This Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their respective
legal representatives, successors and assigns.
10.4 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and the counterparts shall together
constitute one and the same agreement, binding each of the parties hereto,
notwithstanding that all of the parties are not signatory to the original or
the same counterpart; however, no party shall be bound by this Agreement
until and unless all parties have executed this Agreement.
10.5 Waiver. Any provision of this Agreement which may be waived
by a corporate party hereto may be waived (but only in writing) by any duly
authorized officer thereof. No waiver shall be deemed a continual waiver or
waivers with respect to any subsequent breach or default, whether of a
similar or different nature, unless expressly so stated in writing.
10.6 Governing Law and Venue. The validity, construction and
interpretation of this Agreement shall be governed by the laws of the State
of New York and the proper venue and jurisdiction shall be the Supreme Court
of the State of New York, New York County or the United States District
Courts located in the Southern District of New York or the Middle District of
Florida, Tampa Division.
10.7 Further Acts. At any time and from time to time, on and after
the Closing Date, any party shall, at the request of any other party, perform
or cause to be performed and execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered all such further acts, deeds,
assignments and documents as may be necessary or desirable to more fully
consummate the transactions contemplated by this Agreement.
10.8 Notices. All notices and other communications required or
permitted under the terms of this Agreement shall be in writing and shall be
deemed given (1) upon hand delivery, or (2) ten days after deposit of the
same by U.S. certified mail, return receipt requested, first class postage
and certification fees prepaid and correctly addressed to the other party at
the addresses set forth in the first Section hereof.
10.9 Waiver of Jury Trial. Each of the parties hereto hereby
knowingly, voluntarily, and intentionally waives any rights it may have to a
trial by jury in respect of any litigation based hereon or arising out of,
under or in connection with this Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the date first above written.
SELLER:
TDA INDUSTRIES, INC.
By:
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BUYER:
EAGLE SUPPLY GROUP, INC.
By:
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SCHEDULE I
(to the Purchase Agreement by and between
TDA Industries, Inc. and Eagle Supply Group, Inc.)
1. Property located at 0000 X.X. 00xx Xxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000.
2. Property located at 000 Xxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
