EXHIBIT 10.15
ACQUISITION AGREEMENT
By and Between
American Eco Corporation
and
Xxxxx Partners, Ltd.
September 1, 1997
THIS ACQUISITION AGREEMENT is made as of the 1st day of
September, 1997.
B E T W E E N:
AMERICAN ECO CORPORATION
a corporation amalgamated pursuant to the laws of
Canada
("American Eco" or "Buyer")
OF THE FIRST PART
- and -
XXXXX PARTNERS, LTD.
a limited partnership amalgamated pursuant to the laws
of the State of Texas
(the "Shareholder" or "Seller")
OF THE SECOND PART
WHEREAS the Shareholder is the owner of 100% of the issued and
outstanding shares of common stock of CCG Commercial Construction
Group, Inc., a Texas corporation ("CCG"), and the Shareholder
seeks to exchange CCG Shares (as hereinafter defined) solely for
publicly-traded common stock in American Eco (who seeks to
acquire CCG Shares from the Shareholder), pursuant to the meaning
of 368(a)(1)(B) of the U.S. Internal Revenue Code of 1986, as
amended and accounted for as a pooling of interests, all on and
subject to the terms and conditions of this Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of
the mutual covenants, agreements and premises herein contained
and other good and valuable consideration (the receipt and
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 CCG as of 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
(Business Corporation Act, Ontario).
"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" or "known" means actual knowledge or
awareness of the Party.
"Business Day" means a day other than a Saturday or a Sunday
or any other day which is a statutory holiday in the State
of Texas.
"CCG Contracts" has the meaning ascribed thereto in Section
4.1(aa).
"CCG Shares" means 100% of the issued and outstanding shares
of capital stock of CCG, registered in the name of the
Shareholder, as set forth on Schedule 4.1(f), hereto.
"CCG Financial Statements" has the meaning attributed
thereto in Section 4.1(p).
"Closing" means the consummation of the Transaction as
herein contemplated.
"Closing Date" means September 1, 1997 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.
"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 of 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 Nasdaq Stock Market.
"OBCA" means the Business Corporations Act, Ontario.
"Parties" means collectively, the parties to this Agreement.
"Person" means any individual, partnership, 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 30, 1997.
"Subsidiary" has the meaning ascribed thereto in the OBCA.
"Survival Period" has the meaning ascribed thereto in
Section 5.1
"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.
"Time of Closing" means 1:00 p.m. (Central time) on the
Closing Date or if the Transaction is not completed at such
time, then such other time on the Closing Date on which the
Transaction is completed.
"Transaction" means the transfer of CCG Shares in exchange
for the Buyer Shares as contemplated by this Agreement.
"TSE" means The Toronto Stock Exchange.
1.2 Disclosure. Any fact or circumstance or combination of facts
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and/or 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 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 Time. Except where otherwise expressly provided in this
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Agreement any reference to time shall be deemed to be a reference
to Houston, Texas time.
1.5 Gender and Extended Meanings. In this Agreement words and
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personal pronouns relating thereto shall be read and construed as
the number and gender 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
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this Agreement are in U.S. funds, unless otherwise expressly
specified.
1.7 Section Headings. The division of this Agreement into
----------------
sections is for 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
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any action 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
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Closing Date at the Time of Closing, the Shareholder shall
transfer to Buyer and Buyer shall accept from the Shareholder the
CCG Shares and the Shareholder shall deliver to Buyer
certificates representing CCG Shares duly endorsed in blank for
transfer together with new certificates therefor.
2.2 Purchase Price. In consideration for the transfer of the CCG
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Shares, the Buyer shall issue the Shareholder 265,000 fully paid
common shares of American Eco (the "Buyer Shares"). The Buyer
Shares will be assigned a price per share based on the closing
price per share on the date immediately preceding the date that a
Treasury Directive is issued by the Buyer to its transfer agent.
The Buyer Shares shall be free trading through the facilities of
the TSE subsequent to 41 days after the date of issuance. The
Buyer Shares will be restricted against transfer in the United
States pursuant to Rule 144 of the Securities Act of 1933, as
amended.
2.3 Closing. Closing shall occur at the Time of Closing on the
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Closing Date at the offices of American Eco Corporation, 00000
Xxxxx Xxxx, Xxxxxxx, Xxxxx 00000, or at such other place or other
time and date as the Parties may agree.
2.4 Retirement of Debt. The Shareholder shall, within one hundred
------------------
twenty (120) days subsequent to the Closing Date, use its
resources to pay off or otherwise retire all of the notes or
other indebtedness owed to CCG by the Shareholder or C. N. Xxxxx.
3. COVENANTS, REPRESENTATIONS AND WARRANTIES OF BUYER
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3.1 Covenants, Representations and Warranties. Buyer hereby
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covenants, represents and warrants to the Shareholder as follows
and acknowledges and confirms that the Shareholder 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) Organization. Buyer is duly incorporated and validly
subsisting 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 on the Closing Date Buyer will have
the corporate power to execute, deliver and perform its
obligations under this Agreement. Buyer is duly
qualified to do business in those jurisdictions wherein
the failure to so qualify could have a Material Adverse
Effect on Buyer.
(b) Corporate Authority. On the Closing Date, Buyer 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. This Agreement constitutes a
valid and legally binding obligation of Buyer
enforceable against Buyer in accordance with its terms.
(d) Securities Laws Matters. The common shares of Buyer
are listed and posted for trading on the TSE and
Nasdaq. Buyer is in compliance in all material
respects with all applicable requirements of the TSE
and Nasdaq concerning maintenance of such listings and
has received no notification nor has any reasonable
basis to believe that such listings may or will be
terminated. Buyer is a "reporting issuer" under the
Securities Exchange Act of 1934, as amended, 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. The execution and delivery of this
Agreement and all other agreements contemplated herein
by Buyer and the observance and performance of the
terms and provisions of this Agreement and any such
agreements; (i) does not and will not require Buyer 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 Buyer; (ii) does not and will not
constitute a violation or breach of the charter
documents or by-laws of Buyer; (iii) does not and will
not constitute a violation or breach of applicable law,
any material provision of any Contract to which Buyer
is a party or by which Buyer is bound or any law,
by-law, rule, regulation, judgment, order, writ,
injunction or decree applicable to Buyer; 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 Buyer is a party or by
which Buyer is bound.
4. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER
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4.1 Covenants, Representations and Warranties. The Shareholder
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hereby covenants, represents and warrants to Buyer as follows and
acknowledges and confirms that Buyer 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 of Shareholder and Authority of Signatory.
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The Shareholder has the legal capacity and competence
to execute, deliver and perform his obligations under
this Agreement. The Shareholder is a duly formed
limited partnership and validly subsisting under the
laws of Texas. True and correct copies of the
Shareholder's Certificate of Limited Partnership and
Limited Partnership Agreement are attached hereto as
Schedule 4.1(a). The individual executing this
Agreement as agent for the Shareholder has been
properly authorized by the Shareholder to do so.
(b) Organization. CCG is duly incorporated and validly
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subsisting under the laws of Texas 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. CCG is duly
qualified to do business in those jurisdictions wherein
the failure to so qualify could have a Material Adverse
Effect on CCG, being those jurisdictions set forth on
Schedule 4.1(b).
(c) Corporate Authority. The Shareholder has caused CCG to
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take all requisite corporate 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
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Agreement and all other agreements contemplated herein
by the Shareholder and the observance and performance
of the terms and provisions of this Agreement and any
such agreements; (i) does not and will not require the
Shareholder or CCG 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 the
Shareholder or CCG; (ii) does not and will not
constitute a violation or breach of the charter
documents or by-laws of CCG; (iii) does not and will
not constitute a violation or breach of applicable law,
any material provision of any Contract to which the
Shareholder or CCG is a party or by which the
Shareholder or CCG is bound or any law, by-law, rule,
regulation, judgment, order, writ, injunction or decree
applicable to the Shareholder or CCG; (iv) does not and
will not constitute a default (nor would with the
passage of time or the giving of notice or both or
otherwise, constitute a default) under any Contract, to
which the Shareholder or CCG is a party or by which
the Shareholder or CCG is bound; and (v) does not and
will not result in the creation or imposition of any
Encumbrance on CCG Shares or any property or assets of
the Shareholder or CCG.
(e) Issued Shares. All of the issued and outstanding shares
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of CCG, being CCG 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 CCG.
(f) Owner of CCG Shares. The Shareholder is the owner
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beneficially and of record of CCG Shares in the amounts
and proportions identified on Schedule 4.1(f), hereto,
and has good and marketable title thereto, free and
clear of any Encumbrances and/or pre-emptive rights.
The Shareholder has the exclusive right and full power
to transfer CCG Shares to Buyer as herein contemplated,
free and clear of any Encumbrances.
(g) Subsidiaries. CCG has no Subsidiaries and owns no shares
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of any other corporation or entity nor any rights,
warrants or other securities convertible into shares of
any other corporation or entity. CCG 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 the Shareholder nor CCG 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. CCG does not distribute its securities
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to the public.
(j) Resident. The Shareholder is a resident of the United
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States. CCG's principal place of business is within
the United States.
(k) Actions - CCG Shares. There is not pending or, to the
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Best Knowledge of the Shareholder, threatened or
contemplated, any suit, action, legal proceeding,
litigation or governmental investigation of any sort
which would; (i) in any manner restrain or prevent the
Shareholder from effectually and legally transferring
CCG Shares to Buyer in accordance with this Agreement;
(ii) cause an Encumbrance to attach to CCG Shares;
(iii) divest title to CCG Shares in any manner
whatsoever; or (iv) make Buyer liable for damages in
connection with the Transaction.
(l) Litigation. Other than in the course of insurance
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business related claims, and except as set forth on
Schedule 4.1(l), there is not pending, or, to the Best
Knowledge of the Shareholder, threatened or
contemplated, any suit, action, legal proceeding,
litigation or governmental investigation of any sort
relating to the Shareholder, CCG 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 the Shareholder or CCG any
judgment, decree, injunction, rule or order of any
court, governmental department, commission, agency,
instrumentality or arbitrator.
(m) Minute Books. The minute book of CCG contains accurate
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and complete copies of its organizational documents
together with minutes of all meetings of directors,
committees and shareholders of CCG. The articles and
the by-laws of CCG are attached as Schedule 4.1(m).
There are outstanding no applications or filings which
would alter in any way the organizational documents or
corporate status of CCG. No resolutions or by-laws
have been passed, enacted, consented to or adopted by
the directors or shareholders of CCG except as are
contained in the minute book of CCG. The directors and
officers of CCG are as set forth on Schedule 4.1(m)(1).
(n) Books of Account. The books of account and financial
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records of CCG fairly set out and disclose in all
material respects, the current financial position of
CCG. All material transactions involving CCG have been
accurately recorded in such books and records. All
bonuses, commissions and other payments relating to the
employees of CCG are reflected in the books of CCG in a
manner consistent with past record keeping practices
and none of such payables are in arrears.
(o) Permits and Licenses. CCG has all necessary permits,
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certificates, licenses, approvals, consents and other
authorizations required to carry on and conduct
business and to own, lease or operate its assets at the
places and in the manner in which such business is
conducted. Schedule 4.1(o) contains a full, complete
and accurate list of such permits, certificates,
licenses, approvals, consents and other authorizations.
(p) Financial Statements. True copies of CCG's audited
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and/or unaudited financial statements as of and for the
year ended December 31, 1996, and as of and for the six
months ended June 30, 1997 (the "CCG Financial
Statements") are annexed hereto as Schedule 4.1(p).
The CCG 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 CCG as of June 30, 1997 and
the results of operations for the period then
ended subject to normal year end adjustments, if
applicable. Other than the liabilities specified
in the balance sheet forming part of CCG 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, to the Best
Knowledge of the Shareholder, there are no known
liabilities or obligations of CCG (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 CCG.
(4) Contain and reflect all necessary adjustments for
a fair presentation of the results of operations
and financial position of CCG for the period
covered thereby.
(5) Contain and reflect adequate provision or
allowance for all reasonably anticipated
liabilities, expenses and losses of CCG.
(q) Guarantees. Except as disclosed on Schedule 4.1(q), CCG
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does not have any outstanding guarantees or has any
outstanding security for any liability, debt or
obligation of any Person.
(r) Bonds, Debentures. CCG does not have any outstanding
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bonds or debentures, and it is not under any agreement
to create or issue any bonds, debentures or other
indebtedness.
(s) No Further Expenditures. No capital expenditures or
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leasehold improvements have been made by CCG since the
date of CCG Financial Statements, other than in the
ordinary course of business.
(t) Dividends or Distributions. Except as disclosed on
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Schedule 4.1(u), no dividends or other distributions on
any of the shares in the capital of CCG have been
authorized, declared or paid since the date of CCG
Financial Statements and there has not been any direct
or indirect redemption, purchase or acquisition of any
such shares.
(u) No Changes. Since the Reference Date, CCG has carried on
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business and conducted its 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
CCG.
(2) Any damage, destruction or loss (whether or not
covered by insurance) affecting the property or
assets of CCG 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 CCG
(whether absolute, accrued, contingent or
otherwise and whether due or to become due)
greater than $1,000.00 other than payment of
accounts payable and Tax liabilities incurred in
the ordinary course of business consistent with
past practice.
(4) Any issuance or sale by CCG or any Contract
entered into by CCG for the issuance or sale by
CCG of any shares in the capital of or securities
convertible into or exercisable into shares in the
capital of CCG.
(5) Any labor disturbances having a Material Adverse
Affect on CCG.
(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 CCG other than in the
ordinary course of business.
(7) Any write-off as uncollected of any Accounts
Receivable or any portion there of CCG in amounts
exceeding the allowance set out in CCG Financial
Statement.
(8) Any cancellation of any other debts or claims or
any amendment, termination or waiver of any other
rights of value to CCG 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 CCG (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) or the making of any loan to or
engagement in any transaction with any employee,
officer or director of CCG.
(10) Any material change in the accounting or tax
practices followed by CCG.
(11) Any acquisition, transfer, assignment, sale or
other disposition of any of the assets shown in
CCG Financial Statements other than in the
ordinary course of business.
(12) Any institution or settlement of any litigation,
action or proceeding before any court or
governmental body by or against CCG.
(13) The creation of any debts and/or liabilities
whatsoever (whether accrued, absolute, contingent
or otherwise) other than in the ordinary course of
business.
(v) Taxes. Except as reserved for in CCG Financial
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Statements:
(1) All returns, including reports of every kind with
respect to Taxes, which are due to have been filed
by CCG 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
CCG may have any liability arising prior to
Closing have been paid in full or accrued as
liabilities for Taxes on the books of CCG.
(3) All installments for Taxes which CCG 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 CCG Financial
Statements will be adequate to satisfy all
liabilities for Taxes of CCG in any jurisdiction
in respect of the periods covered.
(5) There are not now any extensions of time in effect
with respect to the dates on which any returns,
including elections, reports of Taxes were or are
due to be filed by CCG and there are no
outstanding requests therefor.
(6) All assessments or reassessments of Taxes asserted
as a result of any examination of any return or
report of Taxes have been paid by CCG, have been
accrued on the books of CCG and in CCG Financial
Statements or finally settled and no issue has
been raised in any such examination which, by
application of the same or similar principles,
reasonably could be expected to result in a
proposed deficiency for any other period not so
examined.
(7) No payments are or will be required to be made by
CCG pursuant to any tax indemnity, allocation or
sharing agreement and all such agreements will be
terminated with respect to CCG as of the Reference
Date;
(8) No claims, proposals, assessments or reassessments
for any Taxes are being asserted or, to the Best
Knowledge of the Shareholder, proposed or
threatened and, to the Best Knowledge of the
Shareholder, 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
CCG 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 CCG or any other matter pending
between CCG and any taxing authority.
(10) There are no liens for Taxes upon CCG shares or
upon any property or assets of CCG except liens
for current Taxes not yet due.
(11) To the Best Knowledge of the Shareholder there are
no facts which exist or have existed which would
constitute grounds for the assessment of any Taxes
of CCG with respect to the periods which have not
been audited by the Internal Revenue Service or
other taxing authorities.
(12) CCG 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 CCG for the period ending on the
Reference Date.
(w) Assets. CCG has good and marketable title to all of its
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assets as reflected on CCG 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 and save and except for
the encumbrances identified in Schedule 4.1(x), hereto.
(x) Schedules. The Schedules hereto contain full, complete
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and accurate lists and descriptions of the following as
at the Reference Date:
(1) Schedule 4.1(y)(1): All real property owned of
record or beneficially of CCG.
(2) Schedule 4.1(y)(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 $1,000 or more and owned of record
or beneficially by CCG, including without
limitation, automobiles, trucks and other
vehicles.
(3) Schedule 4.1(y)(3): All purchase commitments of
CCG where the amount remaining unpaid is in excess
of $5,000 and all sales commitments where the
total value of the commitment which is presently
unpaid exceeds $10,000 of CCG.
(4) Schedule 4.1(y)(4): Each lease (including all
amendments thereto) where the total amount
remaining to be paid thereunder exceeds $5,000.00
under which CCG 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 CCG 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 CCG or
would prevent CCG from exercising and obtaining
the benefits of any rights or options contained
therein. CCG 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 the
Shareholder or CCG under any such leases and the
consent of the lessors under such leases is not
required with respect to this Transaction.
(5) Schedule 4.1(y)(5): All Intellectual Property
that is directly or indirectly owned, licensed,
used, required for use or controlled in whole or
in part by CCG and the Shareholder and all
material licenses and other agreements allowing
CCG and the Shareholder to use the Intellectual
Property of other Persons. None of the
Intellectual Property of CCG and the Shareholder
infringes the Intellectual Property of any other
Person and to the Best Knowledge of the
Shareholder, no activity of any other Person
infringes upon any of the Intellectual Property of
CCG or the Shareholder to the extent that any
such infringement in either case could have a
Material Adverse Effect on CCG or the Shareholder.
To the Best Knowledge of the Shareholder, CCG 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 CCG is sufficient for the conduct of
business of CCG as currently conducted.
(6) Schedule 4.1(y)(6): The name and address of each
bank, trust company or other financial institution
in which CCG has an account and the names of all
Persons authorized to draw thereon as well as all
powers of attorney granted by CCG.
(7) Schedule 4.1(y)(7): 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
by CCG on its assets including without limitation,
business interruption, personal and product
liability coverage and by CCG on the lives of its
directors and officers, together with true copies
thereof. The proceeds of such policies are fully
payable to CCG. All premiums in connection with
such policies are fully paid. Such insurance is
in amounts deemed by the Shareholder to be
sufficient for all policy periods prior to the
Reference Date with respect to the assets,
properties, business, operations, products and
services owned or conducted by CCG. 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 the Shareholder, no
basis for any such claim, action, suit or
proceeding exists. CCG is not in default with
respect to any provisions contained in any such
insurance policy which would adversely affect its
rights to make any claim under any such insurance
policy.
(8) Schedule 4.1(y)(8): All major clients of CCG
(being those clients of CCG accounting for more
than 5% of revenues for the financial year ended
on December 31st. There has been no termination
or cancellation of the business relationship of
CCG with any major client or group of major
clients.
(9) Schedule 4.1(y)(9): All suppliers or vendors of
products or services to CCG aggregating more than
$5,000 during the period ending on the Reference
Date, the address of each such supplier or vendor
and the amount sold to CCG during such period.
(10) Schedule 4.1(y)(10):
(a) All written contracts or arrangements for the
employment of any officer, employee, agent or
consultant of CCG.
(b) A complete list of all permanent and
full-time employees of CCG, 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 former director,
officer, employee or consultant of CCG and
all relevant vacation policies.
(y) Certain Contracts and Commitments. Schedule 4.1(aa) sets
---------------------------------
forth a list and description of all contracts, leases
and licenses of CCG (the "CCG Contracts") not included
on any other Schedule. The enforceability of CCG
Contracts will not be affected in any manner by the
execution and delivery of this Agreement or the
consummation of the Transaction. CCG 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 CCG under any of CCG Contracts. The
Shareholder has no knowledge of any breach or default
by any other party to CCG Contracts. The Shareholder
will deliver a true and complete copy of each SMG
Contract to the Buyer as soon as practical after the
Closing Date.
(z) No Other Contracts. For greater certainty and without
------------------
limitation, except as set forth in Schedule 4.1(aa) or
otherwise herein, CCG is not a party to or bound by any
Contract which in any way has or could have a Material
Adverse Effect on CCG. 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, CCG 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 $5,000 or more.
(2) Any Contract for the sale, license or provision of
any assets or services which involve the receipt
of $5,000 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 $5,000 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, partnership, 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 CCG or the ownership or use of the assets
thereof.
(9) Any material warranties relating to products
distributed or services provided by CCG.
(10) Any Contract involving the payment or receipt of
$15,000.00 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.
(aa) Default of Contracts. CCG has 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 it is 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. CCG has the capacity, including the
necessary personnel, equipment and supplies, to
materially perform all its obligations under all such
Contracts.
(ab) Compliance with Laws. CCG has conducted and is 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. CCG is not in default under any such
statutes, regulations, by-laws, orders, covenants,
restrictions or plans applicable to it. Neither CCG
nor any of its directors, officers, agents, employees
or other Persons acting on behalf of CCG have, directly
or indirectly, used any corporate funds of CCG for
unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity, made
any unlawful payments on behalf of CCG 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 CCG or made any bribe,
rebate, payoff, influence payment, kickback or other
unlawful payment on behalf of CCG.
(ac) Leased Premises. The occupation and use to which the
---------------
leased premises of CCG have been put by CCG is not in
breach of any applicable statute, by-law, regulation,
covenant or restriction applicable to the leased
premises. The zoning by-laws applicable to the leased
premises of CCG permit the operation of business and
the intended use to be made of the leased premises by
CCG. There are no outstanding work orders against the
leased premises of CCG or any part thereof nor are
there any matters under discussion between CCG and any
governmental or municipal authority which may give rise
to work orders.
(ad) Environmental Matters. To the Best Knowledge of the
---------------------
Shareholder, the buildings and premises at which CCG
carries 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 CCG in all material
respects complies with all applicable environmental
statutes, regulations and decrees, whether federal,
state or municipal. CCG has not received any notices
to the effect that the business carried on by CCG 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 leased premises at
which the business is carried on.
(ae) Employee Plans and Arrangements. All of the contracts,
-------------------------------
plans and arrangements referred to in Schedule
4.1(y)(10) are in good standing and CCG has made all
payments required to be made by it in connection
therewith. All employee plans requiring funding on the
part of CCG are fully funded. CCG does not have any
employees receiving or claiming long term disability
benefits or workers' compensation benefits. No notice
has been received by CCG of any complaints filed by any
employees claiming that CCG has violated any
applicable employee or human rights or similar
legislation in any other jurisdiction in which CCG
carries on business or of any complaints or proceedings
of any kind involving CCG or any employees of CCG
before any labor relations board. There are no
outstanding orders or charges against any CCG under any
applicable heath and safety legislation in the
jurisdictions in which CCG carries on business. All
levies, assessments and penalties made against CCG
pursuant to any applicable workers' compensation
legislation in any jurisdictions in which any of CCG
carries on business have been paid by CCG and CCG has
been reassessed under any such legislation during the
past 3 years. CCG has 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 none of the Shareholder is aware of any
current attempts to organize or establish any labor
union or employee association relating to CCG. CCG has
not entered into any agreement or made any arrangements
with any employees an consultants which would have the
effect of depriving CCG of the continued services of
any such employees and consultants following the
Closing.
(af) Omissions and Misrepresentations. None of the foregoing
--------------------------------
covenants, representations and warranties knowingly
contains any untrue statement of material fact or
knowingly omits to state any material fact necessary to
make any such covenant, warranty or representation not
misleading to a prospective purchaser of CCG Shares and
the Assets seeking full information as to CCG.
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 Articles 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 until the
expiration of the statute of limitations (herein referred to as
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 Survival Period such
covenant, representation or warranty shall, for the purposes of
such claim, survive the Survival Period until such claim is
finally resolved and all obligations with respect thereto have
been fully satisfied.
6. INDEMNITY
---------
6.1 Indemnity by Buyer. Buyer agrees to indemnify and save
------------------
harmless the Shareholder from all Losses actually incurred by the
Shareholder as a result of any breach by Buyer or any inaccuracy
of any covenant, representation or warranty contained in this
Agreement.
6.2 Indemnity by the Shareholder. The Shareholder agrees to
----------------------------
indemnify and save harmless Buyer from all Losses actually
incurred by Buyer as a result of:
(a) Any breach by the Shareholder or any inaccuracy of any
covenant, representation or warranty contained in this
Agreement.
(b) All debts and liabilities whatsoever (whether accrued,
absolute, contingent or otherwise) of CCG as at the
Reference Date which are not disclosed on, provided for
or included in the balance sheets forming part of CCG
Financial Statements or which did not arise in the
ordinary course of business since the date of CCG
Financial Statements up to the Time of Closing.
(c) Any assessment or reassessment of Taxes, interest
and/or penalties for any period up to the Reference
Date for which no adequate reserve has been provided
and disclosed in CCG Financial Statements.
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 Buyer during the
period commencing on the Reference Date and terminating at the
close of business on the Closing Date, the Shareholder; (i) shall
not make nor shall the Shareholder permit to be made any material
change in the way of CCG is being operated; and (ii) shall comply
with all laws in connection with the business of CCG.
8. CONDITIONS PRECEDENT TO THE SHAREHOLDER'S OBLIGATIONS AT
--------------------------------------------------------
CLOSING
-------
8.1 Conditions Precedent. All obligations of the Shareholder to
--------------------
sell CCG Shares and the Assets at Closing under this Agreement
are subject to the fulfillment (or waiver in writing by the
Shareholder) prior to or at the Closing of each of the following
conditions:
(a) Covenants, Representations and Warranties. The
-----------------------------------------
covenants, representations and warranties made by Buyer
in or under this Agreement shall be true in all
material respects on and as of the Closing Date and the
Shareholder shall have received from Buyer a
certificate signed as of the Closing Date to such
effect.
(b) Actions, Etc. All actions, proceedings, instruments and
------------
documents required to carry out the Transaction
including without limitation the issue of the Buyer
Shares as contemplated in this Agreement and all other
related legal matters shall have been approved by the
Shareholder and the Shareholder shall have been
furnished with such certified copies of actions and
proceedings and other such instruments and documents as
the Shareholder shall have requested.
(c) Approvals. Buyer shall have received all requisite
---------
regulatory approvals and board of director approvals in
connection with the Transaction.
(d) Compliance with Covenants. Buyer shall have complied
-------------------------
with all covenants and agreements herein agreed to be
performed or caused to be performed by Buyer.
(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 the
Shareholder as may be required in order to permit the
issue of the Buyer Shares as provided in this
Agreement.
(f) Corporate Authorizations. Buyer shall have delivered to
------------------------
the Shareholder evidence satisfactory to the
Shareholder that all necessary corporate authorizations
by Buyer authorizing and approving the Transaction have
been obtained. The Buyer Shares shall have been duly
authorized, created and validly issued as fully paid
and non-assessable shares free and clear of all
Encumbrances and shall be listed and posted for trading
on the TSE and Nasdaq, subject only to routine filings
and subject to the matters contained in this Agreement.
(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 reasonable judgment of
the Shareholder makes it inadvisable to proceed with
the consummation of the Transaction shall have been
made, instituted or threatened by any Person.
(h) Employment Agreement. - C. N. Xxxxx shall have entered
--------------------
into an employment agreement with American Eco in the
form set out in Schedule 8.1(h).
In case any of the foregoing conditions cannot be fulfilled at or
before the Time of Closing to the reasonable satisfaction of the
Shareholder, the Shareholder may rescind this Agreement by notice
to Buyer and in such event all of the Parties shall be released
from all obligations hereunder. Provided however that any such
conditions may be waived in whole or in part by the Shareholder
without prejudice to the Shareholder's rights of rescission in
the event of the non-fulfillment of any other condition or
conditions, any such waiver to be binding on the Shareholder only
if the same is in writing.
9. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS AT CLOSING
------------------------------------------------------
9.1 Conditions Precedent. All obligations of Buyer to purchase
--------------------
CCG Shares pursuant to this Agreement are subject to the
fulfillment (or waiver in writing by Buyer) prior to or at the
Closing of each 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 CCG
Shares and all other related legal matters shall have
been approved by Buyer and Buyer shall have been
furnished with such certified copies of actions and
proceedings and other such instruments and documents as
Buyer shall have requested.
(b) Covenants, Representations and Warranties. The
-----------------------------------------
covenants, representations and warranties made by the
Shareholder in or under this Agreement shall be true in
all material respects on and as of the Closing Date and
Buyer shall have received from the Shareholder a
certificate signed as of the Closing Date and to such
effect.
(c) Approvals. Buyer shall have received all requisite
---------
regulatory approval and board of director approvals in
connection with the Transaction.
(d) Resignations. All of the directors and officers of CCG
------------
shall have resigned as directors and officers of CCG in
favor of nominees of the Buyer and the resigning
directors and officers of CCG shall have delivered
releases to CCG and the Buyer in form and substance
reasonably satisfactory to the Buyer.
(e) Compliance with Covenants. The Shareholder shall have
-------------------------
complied with all covenants and agreements herein
agreed to be performed or caused to be performed by the
Shareholder.
(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 terms reasonably satisfactory to Buyer as may be
required in order to transfer CCG Shares at Closing as
herein provided.
(g) Permits and Licenses. Buyer shall have been furnished
--------------------
with evidence that CCG holds all valid permits and
licenses as may be requisite for carrying on business.
(h) Corporate Authorizations. The Shareholder shall have
------------------------
delivered to Buyer evidence satisfactory to Buyer that
all necessary corporate authorizations by the
Shareholder and CCG 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 Buyer
makes it inadvisable to proceed with the consummation
of the Transaction shall have been made, instituted or
threatened by any Person.
(j) Employment Agreement. C. N. Xxxxx shall have entered into
--------------------
an employment agreement with American Eco in the form
set out in Schedule 8.1(h).
In case any of the foregoing conditions cannot be fulfilled
at or before the Time of Closing to the satisfaction of Buyer,
Buyer may rescind this Agreement by notice to the Shareholder and
in such event the Parties shall be released from all obligations
hereunder. Provided however that any such conditions may be
waived in whole or in part by Buyer without prejudice to Buyer's
rights of rescission in the event of the non-fulfillment of any
other condition or conditions, any such waiver to be binding on
Buyer only if the same is in writing.
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 Notices. 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, registered or certified mail, postage
prepaid, addressed, telecopied or delivered to such other Party
as follows:
(a) if to the Shareholder, to: C. N. Xxxxx
Commercial Construction
Group, Inc.
0000 XXX Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: 972/000-0000
(b) if to American Eco, to: American Eco Corporation
ATTN: Xxxxxxx X. XxXxxxxx
00000 Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Fax: 281/000-0000
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 papers,
------------------
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 attorn to the Courts of Xxxxxx
County, Texas.
10.5 Expenses. All out-of-pocket expenses (including legal and
--------
accounting expenses) incurred in connection with the Transaction
shall be borne by the respective Parties.
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 enure 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 terms
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 Special Condition. The parties acknowledge that as of the
-----------------
Closing Date, all of the schedules and exhibits referred to in
this Agreement have not been prepared or approved by the parties.
In the event that the parties have not approved all of the
schedules and exhibits within sixty (60) days after the Closing
Date, either party may elect to rescind this Agreement, by
notifying the other party in writing, in which event all
consideration paid or delivered by either party shall be promptly
returned and the parties cooperate with each other in unwinding
the transaction.
* * * * *
IN WITNESS WHEREOF the Parties have duly executed this
Agreement, in multiple counterparts, as of the date and year
first above written.
AMERICAN ECO CORPORATION
By: /s/ Xxxxxxx X. XxXxxxxx
---------------------------
Name: Xxxxxxx X. XxXxxxxx
-------------------------
Title: President/CEO
------------------------
Date: September 1, 1997
XXXXX PARTNERS, LTD.
By: /s/ C.N. Xxxxx
--------------------------
Name: C.N. Xxxxx
------------------------
Title: General Partner
-----------------------
Date: September 1, 1997
