EXHIBIT 2.1 - ACQUISITION AGREEMENT
COMMON STOCK
STOCK PURCHASE AGREEMENT
This Common Stock Purchase Agreement ("Agreement") is made as
of this 15th day of October 2002 by and among Xxxxx Xxxxxxx, a resident
of Detroit, Michigan, and ServoTech Engineering, Inc. (which is
currently a C-Corporation) and ServoTech Industries, Inc. (which is
currently an S- Corporation), each of which is a Michigan corporation
(collectively, the "Companies" or individually, "STE" and "STI"), and
KleenAir Systems, Inc., a Nevada corporation (hereinafter referred to as
"Purchaser"). For and in consideration of the mutual covenants set
forth herein and for other good and valuable consideration, the receipt
and adequacy of which is hereby acknowledged, the parties hereto agree
as follows:
1. PURCHASE AND SALE OF STOCK
1.1 Sale and Issuance of Common Stock.
(a) Subject to the terms and conditions of this
Agreement, Purchaser agrees to purchase, and Xxxxx Xxxxxxx agrees to
sell and convey to Purchaser, at the Closing (as defined below), that
255 shares of the Common Stock of STE in the name of Xxxxx Xxxxxxx and
510 shares of the Common Stock of STI in the name of Xxxxx Xxxxxxx,
which shall be equal to fifty-one percent (51%) of the issued and
outstanding stock of STE and STI (the "Stock") for an aggregate purchase
price of up to $1,100,000, represented by a promissory note payable in
cash and 3,700,000 of shares of Purchaser's common stock.
(b) All of the shares of Stock and the entire Purchase
Price for the Stock shall be delivered in Escrow to the offices of
Xxxxxxx X. XxXxxxxx at 37455 Xxxxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000, and
held until closing and paid as follows:
(i) Cash in satisfaction of the promissory note in
the principal amount of $1,100,000 with interest at the rate of eight
percent (8%) per annum due and payable one hundred twenty (120) days
from the date of execution of this Agreement which shall be referred
hereinafter as the "closing date"; and (ii) 3,700,000 shares of
Purchaser's common stock; provided, however, that in the event the
promissory note is not paid on the date of closing, then in such event,
Xxxxx Xxxxxxx shall be delivered from Escrow 500,000 (five hundred
thousand) shares of Purchaser's common stock as fully paid and non
assessable shares and shall constitute liquidated damages for
Purchaser's failure to pay the promissory note and there shall be no
further obligation or charge payable by Purchaser for any reason under
this Agreement
1.2 Closing; Additional Closings.
(a) The purchase and sale of the Shares and payment of
the Purchase Price shall take place at the offices of Xxxxxxx X.
XxXxxxxx at 37455 Schoolcraft, Xxxxxxx, Xxxxxxxx 00000, at 3:00 p.m., on
the 120th day from the date hereof, or at such other time and place as
Xxxxx Xxxxxxx and Purchaser mutually agree upon orally or in writing
(which time and place are designated as the "Closing").
(b) Xxxxx Xxxxxxx shall, at Closing, issue and deliver
an option agreement for such number of additional shares of Common Stock
of each of STE and STI in his name as shall represent the remaining
forty- nine percent (49%) of each STE and STI (the "Option Stock"),
exercisable during the twenty-four (24) month period commencing on the
date of the Closing at the price per share set forth in Section 1.1 (b)
above.
(c) Subject to the terms of this Agreement, at the
Closing Xxxxx Xxxxxxx shall deliver to Purchaser certificates
representing the Shares purchased by Purchaser from him, against payment
of the Purchase Price therefor by delivery of a stock certificate for
Purchaser's shares of stock and by check, wire transfer of funds, or
such other form of cash payment to Xxxxx Xxxxxxx, as shall be mutually
agreed upon by such Purchaser and Xxxxx Xxxxxxx.
(d) Consummation or Closing of this transaction is
expressly subject to (i) due diligence by each participant disclosing no
material deviation in fact from the representations and warranties of
the other party; (ii) approval of the transaction by each party's board
of directors.
1.3 Option of Common Stock. The Option Agreement respecting
the option will be delivered to the Closing and Xxxxx Xxxxxxx covenants
to continue to reserve the Option Shares free of any claims, rights and
other encumbrances, the shares of common stock to satisfy the rights of
exercise for the Option Shares.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANIES
Each of the Companies and Xxxxx Xxxxxxx hereby represent and
warrant to, and covenant with, Purchaser, except as set forth in the
Disclosure Schedule attached hereto (the "Disclosure Schedule"), as
follows:
2.1 Organization and Standing. Each of STE and STI is a
corporation duly organized, validly existing, and in good standing under
the laws of the State of Michigan, and has full power and authority to
own and operate its respective properties and assets and to carry on its
business as presently conducted and as contemplated. Each of STE and
STI is duly qualified and authorized to do business, and is in good
standing as a foreign corporation, in each jurisdiction where the nature
of its activities and of its properties (both owned and leased) makes
such qualification necessary, except where the failure to so qualify
would not have a material adverse effect upon the business and
operations of either of them. The Companies have each furnished the
Purchaser or its special counsel with copies of their respective
Certificates of Incorporation and Bylaws. Said copies are true,
correct, and complete and contain all amendments through the date of the
Closing.
2.2 Capitalization. As of the Closing, the authorized
capital stock of STE will consist of 5,000 shares of common stock, 500
of which are issued and outstanding, and of STI will consist of 60,000
shares of common stock, 1,000 of which are issued and outstanding.
Immediately following the Closing, all issued and outstanding shares of
capital stock have been or will be duly authorized and validly issued,
and have been or will be fully paid and nonassessable. Immediately
prior to the Closing, there will be issued and outstanding only the
above stated shares of common stock and no shares of preferred stock.
Other than as set forth in the Disclosure Schedule among the Companies,
the Purchaser and Xxxxx Xxxxxxx, each dated as of even date herewith,
there are no outstanding rights of first refusal, preemptive rights or
other rights, options, warrants, conversion rights, or other agreements
either directly or indirectly for the purchase or acquisition from
either of the Companies of any shares of their respective capital stock.
2.3 Authorization. All corporate action on the part of STE
and STI, their respective officers, directors and shareholders necessary
for the authorization, execution and delivery of this Agreement and the
other agreements and documents contemplated herein, the performance of
all their respective obligations hereunder and thereunder, and for the
authorization, issuance (or reservation for issuance), sale and delivery
of the stock has been taken or will be taken prior to the Closing. This
Agreement and the other agreements and documents contemplated herein,
when executed and delivered, shall constitute valid and legally binding
obligations of STE and STI enforceable in accordance with their
respective terms, subject to laws of general application relating to
bankruptcy, insolvency and the relief of debtors and subject to the
availability of equitable remedies.
2.4 Validity of Stock. Neither the sale of the Shares nor
Option Stock is subject to any preemptive rights or rights of first
refusal and, when issued, sold and delivered in compliance with the
provisions of this Agreement and/or the Certificate of Incorporation,
the Stock will be duly and validly issued, fully paid and nonassessable,
and will be free of any liens, encumbrances or restrictions on transfer;
provided, however, that the Stock may be subject to restrictions on
transfer under state and/or federal Stock laws as set forth herein or as
otherwise required by such laws at the time a transfer is proposed.
2.5 Compliance with Other Instruments. Neither STE nor STI
is in violation of any term of their respective Certificates of
Incorporation or Bylaws, any material mortgage, indenture, contract,
agreement or other instrument or any judgment, decree, order, statute,
rule or regulation applicable to either of them, the violation of which
could have a material adverse effect on the business, operations,
financial condition or prospects of either of them. The execution,
delivery, and performance of and compliance with this Agreement and the
issuance and sale of the Stock pursuant hereto will not result in any
violation of any term of their respective Certificates of Incorporation
or Bylaws, as each is then in effect, or any material mortgage,
indenture, contract, agreement or other instrument or any judgment,
decree or order, or be in conflict with or constitute a default under
any such term, or result in the creation of any mortgage, pledge, lien,
encumbrance, or charge upon any of the properties or assets of either of
STE or STI.
2.6 Litigation, etc. There are no actions, suits,
proceedings, or investigations before any court or administrative agency
pending or, to the best of the knowledge of STE, STI or Xxxxx Xxxxxxx,
currently threatened against or with respect to STE or STI or Servati,
which question the validity of this Agreement or any action taken or to
be taken in connection herewith, or which, either individually or in the
aggregate, might result in a material adverse change in the business,
prospects, conditions, affairs, or operations of STE or STI or Servati
or in any of their respective properties or assets, or in any material
impairment of the right or ability of any of them to carry on their
respective business as now conducted or as proposed to be conducted, or
in any material liability on the part of either of them. None of STE or
STI or Servati is a party or subject to, and none of their respective
assets are bound by, the provisions of any order, writ, injunction,
judgment, or decree of any court or governmental agency or
instrumentality. Which would interfere with consummation of this
agreement. There is no action, suit, proceeding, or investigation by
each of STE or STI or Servati currently pending or that STE or STI or
Servati intends to initiate.
2.7 Title to Properties and Assets; Liens, etc. Each of STE
and STI has good and marketable title to their respective properties and
assets, in each case subject to no mortgage, pledge, lien, lease,
encumbrance, or charge, other than (a) liens resulting from taxes which
have not yet become delinquent, or (b) minor liens, encumbrances, or
defects of title which do not, individually or in the aggregate,
materially detract from the value of the property subject thereto or
materially impair the operations of either of them.
2.8 Subsidiaries; Partnerships. Neither STE nor STI (i) has
subsidiaries, (ii) presently owns or controls, directly or indirectly,
any equity interest in any corporation, association, partnership,
limited liability company or other business entity or (iii) is directly
or indirectly, a participant in any joint venture, partnership or
similar arrangement.
2.9 Material Contracts and Agreements. Except as set forth
on Schedule 2.9 of the Disclosure Schedule, neither STE nor STI has or
is bound by any material contract, agreement, lease, or other
commitment, written or oral, absolute or contingent. For the purpose of
this section, employment contracts, stock option agreements, stock
purchase agreements, registration rights agreements, and contracts with
labor unions shall be considered to be material regardless of amount.
All material contracts, agreements, and instruments to which either STE
or STI is a party are valid, binding, and in full force and effect in
all material respects, without any material breach by either STE or STI,
respectively, or to the best of their knowledge, any other party
thereto.
2.10 Related Party Transactions. Set forth on Schedule 2.10
of the Disclosure Schedule is a schedule of (a) all of the obligations
of STE and STI to all officers, directors, shareholders, and employees
of each of STE and STI, respectively, including any member of their
immediate families (other than normal expense vouchers and shareholder
agreements) and (b) all of the obligations of STE and STI's officers,
directors, shareholders, and employees, and their immediate families
(other than expense advances made in the ordinary course of business) to
either STE or STI, which Schedule is complete and correct in all
material respects at the date of this Agreement. To the best knowledge
of STE, STI and Xxxxx Xxxxxxx, except as set forth on Schedule 2.10 of
the Disclosure Schedule, none of the officers, directors, shareholders
or employees of either STE or STI (or any member of any such person's
immediate family) has any direct or indirect ownership interest in any
firm or corporation with which either STE or STI is affiliated or with
which either STE or STI has a business relationship, or any firm or
corporation that competes with the Companies.
2.11 Operation Rights. Except as set forth in Schedule 2.11
of the Disclosure Schedule, each STE or STI has all operating authority,
licenses, franchises, permits, certificates, consents, rights and
privileges (collectively, "Licenses") the lack of which would
reasonably be expected to materially and adversely affect the business,
operations, financial condition, properties or prospects of either of
them. Such Licenses are in full force and effect, no violations have
been or are expected to have been recorded in respect of any such
Licenses, and no proceeding is pending or, to the knowledge of STE or
STI, threatened that could result in the revocation or limitation of any
of such Licenses. Each of STE and STI has conducted its business so as
to comply in all material respects with all such material Licenses.
Each of STE and STI can, without undue burden or expense, obtain any
License which will be required for the conduct of its business as
presently proposed to be conducted. STE and STI are ISO 9000 compliant.
2.12 Full Disclosure. Each of STE, STI and Xxxxx Xxxxxxx has
provided the Purchaser with all the information that the Purchaser has
requested for deciding whether to purchase the Shares. Neither this
Agreement, the representations and warranties by STE or STI contained
herein, the Exhibits and Schedules hereto, nor any other written
statement or certificate delivered or to be furnished to the Purchaser
in connection herewith, when read together, knowingly contains any
untrue statement of a material fact or knowingly omit to state a
material fact necessary in order to make the statements contained herein
or therein not misleading.
2.13 Financial Condition. Each of STE and STI has delivered
financial statements to the Purchaser. Except as set forth in Schedule
2.13, neither STE nor STI has material liabilities, contingent or
otherwise. Neither STE nor STI is a guarantor or indemnitor of any
indebtedness of any other person, firm, or corporation. Each of STE and
STI will maintain a standard system of accounting established and
administered in accordance with generally accepted accounting
principles.
2.14 Outstanding Indebtedness. Except as set forth on
Schedule 2.14 of the Disclosure Schedule, neither STE nor STI has any
indebtedness for borrowed money, which the Companies have directly or
indirectly created, incurred, assumed, or guaranteed, or with respect to
which either STE or STI has otherwise become directly or indirectly
liable other than trade payables and leases entered into in the ordinary
course of business.
2.15 Changes. Except as set forth in Schedule 2.15 of the
Disclosure Schedule, there has not been as to STE or STI, respectively:
(a) any damage, destruction or loss, whether or not
covered by insurance, materially adversely affecting the business,
properties, prospects, or financial condition (as such business is
presently conducted and as it is proposed to be conducted);
(b) any waiver or compromise of a valuable right or of a
material debt owed to it;
(c) any resignation or termination of employment of any
key officer; and neither STE nor STI, to the best of their respective
knowledge, knows of the impending resignation or termination of
employment of any such officer;
(d) any loans made by either STE or STI to or for the
benefit of their employees, shareholders, officers, or directors, or any
members of their immediate families, other than travel advances and
other advances made in the ordinary course of business;
(e) any declaration, setting aside, or payment of any
dividend or other distribution in respect of STE or STI's capital stock,
or any direct or indirect redemption, purchase, or other acquisition of
any of such stock by either STE or STI;
(f) any other event or condition of any character that
might materially and adversely affect the business, properties,
prospects, or financial condition of either STE or STI (as such business
is presently conducted and as it is proposed to be conducted); or
(g) any agreement or commitment by STE or STI to do any
of the things described in this paragraph.
2.16 Employee; Employee Compensation. To the best of STE, STI
or Xxxxx Xxxxxxx'x knowledge, no employee of STE or STI is obligated
under any contract (including licenses, covenants, or commitments of any
nature) or other agreement, or subject to any judgment, decree or order
of any court or administrative agency that would conflict with such
employee's obligation to use his or her best efforts to promote the
interests of STE or STI or that would conflict with either of their
business as conducted or as proposed to be conducted. To the best of
STE, STI or Xxxxx Xxxxxxx'x knowledge, no employee of STE or STI is in
violation of any term of any employment contract, proprietary
information and inventions agreement, non-competition agreement, or any
other contract or agreement relating to the relationship of any such
employee with either STE or STI. Neither STE nor STI has collective
bargaining agreements with any of their employees and to the best of
their knowledge, there is no labor union organizing activity pending or
threatened with respect to either of them. Except as set forth on
Schedule 2.16 of the Disclosure Schedule, there is no profit sharing,
bonus, stock purchase, or stock option to any officer or employee of
either STE or STI.
2.17 Proprietary Information.
(a) Each of STE and STI has taken all reasonable
security measures to protect the secrecy, confidentiality, and value of
all trade secrets, know-how, inventions, designs, processes, and
technical data required to or used in its business, as currently
conducted or as proposed to be conducted.
(b) Each officer, employee, or consultant of STE and STI
who has access to material confidential information has signed or will
sign and deliver prior to the Closing (and each future such officer,
employee or consultant will sign) a proprietary information agreement
substantially in the standard form of such agreement (a copy of which
form has been provided to Purchaser's counsel), each of which agreements
remains in full force and effect as of the date hereof. To the best of
STE and STI's knowledge, none of STE or STI's current or former
officers, employees, or consultants is or will be in violation thereof.
2.18 Taxes. Each of STE and STI's respective total income tax
liabilities for the 2001 fiscal year was $15,385.00 and tax liability
was passed to the shareholder, respectively. STE has not elected to
be treated as an S Corporation (but shall, prior to or at Closing,
elect no longer to be treated as an S Corporation) or a collapsible
corporation pursuant to Section 341(f) of the Code, nor has it made any
other elections pursuant to the Code (other than elections that relate
solely to methods of accounting, depreciation or amortization) that
would have a material effect on STE or their respective financial
condition, its business as presently conducted or proposed to be
conducted or any of their properties or material assets. Neither STE
nor STI has ever had any tax deficiency proposed or assessed against it,
has claimed unsupportable deductions or has executed any waiver of any
statute of limitations on the assessment or collection of any tax or
governmental charge.
2.19 Books and Records. The books of account, minute books,
stock record books, and other records of each of STE and STI, all of
which have been made available to the Purchaser and its representatives,
are complete and correct in all material respects and have been
maintained in accordance with sound business practices. The copy of the
minute books of STE and STI provided to the Purchaser's counsel contains
minutes of all meetings of directors and committees thereof and of
shareholders and all actions by written consent without a meeting by the
directors and committees thereof and of shareholders since the dates of
incorporation of each and reflects accurately in all material respects
all actions by the directors (and any committee of directors) and by the
shareholders with respect to all transactions referred to in such
minutes. No meeting of either STE or STI's stockholders, board of
directors or any committee thereof has been held for which minutes have
not been prepared and included in the minute books.
2.20 Patents, Trademarks, etc.
(a) Each of STE and STI owns or is licensed or otherwise
possesses legally enforceable rights to use all Intellectual Property
(as defined below) that is used to conduct its business as currently
conducted or planned to be conducted. For purposes of this Agreement,
the term "Intellectual Property" means all (i) patents, patent
applications, patent disclosures and all related continuation,
continuation-in-part, divisional, reissue, reexamination, utility,
model, certificate of invention and design patents, patent applications,
registrations and applications for registrations, (ii) trademarks,
service marks, trade dress, logos, trade names and corporate names and
registrations and applications for registration thereof, (iii)
copyrights and registrations and applications for registration thereof,
(iv) mask works and registrations and applications for registration
thereof, (v) computer software, data and documentation, (vi) trade
secrets and confidential business information, whether patentable or
unpatentable and whether or not reduced to practice, know-how,
manufacturing and production processes and techniques, research and
development information, copyrightable works, financial, marketing and
business data, pricing and cost information, business and marketing
plans and customer and supplier lists and information, (vii) other
proprietary rights relating to any of the foregoing and (viii) copies
and tangible embodiments thereof. Schedule 2.20 of the Disclosure
Schedule lists (i) all patents and patent applications and all
trademarks, trademark applications, registered copyrights, trade names
and service marks which are owned by and used in the business of the
Companies, including the jurisdictions in which each such Intellectual
Property right has been issued or registered or in which any such
application for such issuance or registration has been filed, (ii) all
written licenses, sublicenses and other agreements to which the
Companies are a party and pursuant to which any person is authorized to
use any Intellectual Property rights of the Companies, and (iii) all
written licenses, sublicenses and other agreements as to which the
Companies is a party and pursuant to which the Companies are authorized
to use any third party patents, trademarks or copyrights, including
software ("Third Party Intellectual Property Rights") which are used in
the business of the Companies or which form a part of any product or
service of the Companies, all of which are in full force and effect.
The Companies have made available to the Purchaser correct and complete
copies of all such patents, registrations, applications, licenses and
agreements (as amended to date) and related documentation. The
Companies have not agreed to indemnify any person or entity for or
against any infringement, misappropriation or other conflict with
respect to any item of Intellectual Property that the Companies own or
use. The Companies are not a party to any oral license, sublicense or
agreement which, if reduced to written form, would be required to be
listed in Schedule 2.20 to the Disclosure Schedule under the terms of
this Section 2.20.
(b) The Companies will not be, as a result of the
execution and delivery of this Agreement or the performance of the
Companies' obligations under this Agreement, in breach of any license,
sublicense or other agreement relating to the Intellectual Property or
Third Party Intellectual Property Rights.
(c) The Companies have not been named in any suit,
action or proceeding which involves a claim of infringement of any
Intellectual Property right of any third party. To the Companies'
knowledge, the manufacturing, marketing, licensing or sale of the
products or performance of the service offerings proposed by the
Companies will not infringe any Intellectual Property right of any third
party; and to the knowledge of the Companies, the Intellectual Property
rights of the Companies are not being infringed by activities, products
or services of any third party.
(d) Except as set forth on such Schedule 2.20, there are
no outstanding options, licenses, or agreements of any kind relating to
the Companies' Intellectual Property, nor are the Companies bound by or
a party to any options, licenses or agreements of any kind with respect
to the patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses, information, proprietary rights or processes of
any other person or entity.
2.21 Governmental Consents. All consents, approvals, orders,
or authorizations of, or registrations, qualifications, designations,
declarations, or filings with, any governmental authority, required on
the part of the Companies in connection with the valid execution and
delivery of this Agreement, the Employment Agreements, the offer, sale
or issuance of the Stock, or the consummation of any other transaction
contemplated hereby have been obtained, or will be effective at the
Closing, except for notices required or permitted to be filed with
certain state and federal Stock commissions after the Closing, which
notices will be filed on a timely basis.
2.22 Offering. Assuming the accuracy of the representations
and warranties of the Purchaser contained in Section 3 hereof, the
offer, issue, and sale of the Stock: (a) are and will be exempt from
the registration and prospectus delivery requirements of the Securities
Act of 1933, as amended (the "1933 Act"); and neither STE nor STI nor
any authorized agent acting on either of their behalf will take any
action hereafter that would cause the loss of such exemption, and (b)
have been registered or qualified (or are exempt from registration and
qualification) under the registration, permit, or qualification
requirements of all applicable state securities laws.
2.23 Environmental Matters. Each of STE and STI is, and at
all times has been, in full compliance with all environmental laws.
Neither STE nor STI knows of any basis for any assertion that it is
responsible for any damages or remediation of any property or other
facility due to the production, storage or dumping of any hazardous
materials, whether by the Companies or otherwise.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser hereby represents and warrants to, and covenants
with, STE, STI and Xxxxx Xxxxxxx, except as set forth in the Disclosure
Schedule attached hereto (the "Disclosure Schedule"), as follows:
3.1 Organization and Standing. Purchaser is a corporation
duly organized, validly existing, and in good standing under the laws of
the State of Nevada, and has full power and authority to own and operate
its properties and assets and to carry on its business as presently
conducted and as contemplated. Purchaser is duly qualified and
authorized to do business, and is in good standing as a foreign
corporation, in each jurisdiction where the nature of its activities and
of its properties (both owned and leased) makes such qualification
necessary, except where the failure to so qualify would not have a
material adverse effect upon the business and operations of Purchaser.
Purchaser has furnished the Companies and Xxxxx Xxxxxxx or their special
counsel with copies of its Certificate of Incorporation and Bylaws.
Said copies are true, correct, and complete and contain all amendments
through the date of the Closing.
3.2 Capitalization. As of the Closing, the authorized
capital stock of the Purchaser will consist of 50,000,000 shares of
common stock, 17,425,162 of which are issued and outstanding, not
including shares of common stock issuable to Xxxxx Xxxxxxx at Closing or
up to 5,000,000 other shares of common stock which may be sold in the
private placement presently being conducted by Purchaser or 500,000
being issued to Extengine Transport Systems LLC for consideration paid.
Immediately following the Closing, all issued and outstanding shares of
capital stock have been or will be duly authorized and validly issued,
and have been or will be fully paid and nonassessable. Immediately
prior to the Closing, there will be issued and outstanding 17,425,162
shares of common stock and no shares of preferred stock excepting the
above stated qualifications. Other than as set forth in the Disclosure
Schedule, there are no outstanding rights of first refusal, preemptive
rights or other rights, options, warrants, conversion rights, or other
agreements either directly or indirectly for the purchase or acquisition
from Purchaser of any shares of its respective capital stock.
3.3 Authorization. All corporate action on the part of
Purchaser, their respective officers, directors and shareholders
necessary for the authorization, execution and delivery of this
Agreement and the other agreements and documents contemplated herein,
the performance of all their respective obligations hereunder and
thereunder, and for the authorization, issuance (or reservation for
issuance), sale and delivery of the stock has been taken or will be
taken prior to the Closing. This Agreement and the other agreements and
documents contemplated herein, when executed and delivered, shall
constitute valid and legally binding obligations of the Purchaser
enforceable in accordance with its respective terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of
debtors and subject to the availability of equitable remedies.
3.4 Validity of Stock. The issuance of Purchaser's stock is
not subject to any preemptive rights or rights of first refusal and,
when issued, sold and delivered in compliance with the provisions of
this Agreement and/or the Certificate of Incorporation, will be duly and
validly issued, fully paid and nonassessable, and will be free of any
liens, encumbrances or restrictions on transfer; provided, however, that
the Stock may be subject to restrictions on transfer under state and/or
federal Stock laws as set forth herein or as otherwise required by such
laws at the time a transfer is proposed.
3.5 Compliance with Other Instruments. Purchaser is not in
violation of any term of its Certificates of Incorporation or Bylaws,
any material mortgage, indenture, contract, agreement or other
instrument or any judgment, decree, order, statute, rule or regulation
applicable to either of them, the violation of which could have a
material adverse effect on the business, operations, financial condition
or prospects of Purchaser. The execution, delivery, and performance of
and compliance with this Agreement and the issuance of the shares of
Purchaser pursuant hereto will not result in any violation of any term
of its Certificates of Incorporation or Bylaws, as each is then in
effect, or any material mortgage, indenture, contract, agreement or
other instrument or any judgment, decree or order, or be in conflict
with or constitute a default under any such term, or result in the
creation of any mortgage, pledge, lien, encumbrance, or charge upon any
of the properties or assets of Purchaser.
3.6 Litigation, etc. There are no actions, suits,
proceedings, or investigations before any court or administrative agency
pending or, to the best of the knowledge of Purchaser, currently
threatened against or with respect to Purchaser, which question the
validity of this Agreement or any action taken or to be taken in
connection herewith, or which, either individually or in the aggregate,
might result in a material adverse change in the business, prospects,
conditions, affairs, or operations of Purchaser or in any of their
respective properties or assets, or in any material impairment of the
right or ability of Purchaser to carry on its business as now conducted
or as proposed to be conducted, or in any material liability on the part
of Purchaser. Purchaser is not party or subject to, and none of its
assets are bound by, the provisions of any order, writ, injunction,
judgment, or decree of any court or governmental agency or
instrumentality. There is no action, suit, proceeding, or investigation
by Purchaser currently pending or that Purchaser intends to initiate,
other than the litigation filed by Purchaser against Extengine Transport
Systems, LLC in the Orange County Superior Court to cancel the license
to Extengine.
3.7 Title to Properties and Assets; Liens, etc. Purchaser
has good and marketable title to its properties and assets, in each case
subject to no mortgage, pledge, lien, lease, encumbrance, or charge,
other than (a) liens resulting from taxes which have not yet become
delinquent, or (b) minor liens, encumbrances, or defects of title which
do not, individually or in the aggregate, materially detract from the
value of the property subject thereto or materially impair the
operations of Purchaser.
3.8 Subsidiaries; Partnerships. Purchaser does not presently
own or control, directly or indirectly, any equity interest in any
corporation, association, partnership, limited liability company or
other business entity is directly or indirectly, a participant in any
joint venture, partnership or similar arrangement as set forth in 3.8 of
the Disclosure Schedule.
3.9 Material Contracts and Agreements. Except as set forth
on Schedule 3.9 of the Disclosure Schedule, Purchaser is not bound by
any material contract, agreement, lease, or other commitment, written or
oral, absolute or contingent. For the purpose of this section,
employment contracts, stock option agreements, stock purchase
agreements, registration rights agreements, and contracts with labor
unions shall be considered to be material regardless of amount. All
material contracts, agreements, and instruments to which Purchaser is a
party are valid, binding, and in full force and effect in all material
respects, without any material breach by Purchaser, respectively, or to
the best of its knowledge, any other party thereto.
3.10 Related Party Transactions. Set forth on Schedule 3.10
of the Disclosure Schedule is a schedule of (a) all of the obligations
of Purchaser to all officers, directors, shareholders, and employees of
Purchaser, including any member of their immediate families (other than
normal expense vouchers and shareholder agreements) and (b) all of the
obligations of Purchaser 's officers, directors, shareholders, and
employees, and their immediate families (other than expense advances
made in the ordinary course of business) to Purchaser, which Schedule is
complete and correct in all material respects at the date of this
Agreement. To the best knowledge of Purchaser, except as set forth on
Schedule 3.10 of the Disclosure Schedule, none of the officers,
directors, shareholders or employees of Purchaser (or any member of any
such person's immediate family) has any direct or indirect ownership
interest in any firm or corporation with which Purchaser is affiliated
or with which Purchaser has a business relationship, or any firm or
corporation that competes with Purchaser.
3.11 Operation Rights. Except as set forth in Schedule 3.11
of the Disclosure Schedule, Purchaser has all operating authority,
licenses, franchises, permits, certificates, consents, rights and
privileges (collectively, "Licenses") the lack of which would
reasonably be expected to materially and adversely affect the business,
operations, financial condition, properties or prospects of either of
them. Such Licenses are in full force and effect, no violations have
been or are expected to have been recorded in respect of any such
Licenses, and no proceeding is pending or, to the knowledge of
Purchaser, threatened that could result in the revocation or limitation
of any of such Licenses. Purchaser has conducted its business so as to
comply in all material respects with all such material Licenses.
Purchaser can, without undue burden or expense, obtain any License which
will be required for the conduct of its business as presently proposed
to be conducted.
3.12 Full Disclosure. Purchaser has provided STE and STI and
Servati with all the information that STE, STI and Servati have
requested for deciding whether to accept shares of Purchaser under this
Agreement. Neither this Agreement, the representations and warranties by
the Purchaser contained herein, the Exhibits and Schedules hereto, nor
any other written statement or certificate delivered or to be furnished
to STE, STI or Xxxxx Xxxxxxx in connection herewith, when read together,
knowingly contains any untrue statement of a material fact or knowingly
omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading.
3.13 Financial Condition. Purchaser has delivered financial
statements to STE and STI and Servati. Except as set forth in Schedule
3.13, Purchaser does not have material liabilities, contingent or
otherwise. Purchaser is not a guarantor or indemnitor of any
indebtedness of any other person, firm, or corporation. Purchaser
maintains a standard system of accounting established and administered
in accordance with generally accepted accounting principles.
3.14 Outstanding Indebtedness. Except as set forth on
Schedule 3.14 of the Disclosure Schedule, Purchaser does not have any
indebtedness for borrowed money, which the Purchaser has directly or
indirectly created, incurred, assumed, or guaranteed, or with respect to
which Purchaser has otherwise become directly or indirectly liable other
than trade payables and leases entered into in the ordinary course of
business.
3.15 Changes. Except as set forth in Schedule 3.15 of the
Disclosure Schedule, there has not been as to Purchaser:
(a) any damage, destruction or loss, whether or not
covered by insurance, materially adversely affecting the business,
properties, prospects, or financial condition (as such business is
presently conducted and as it is proposed to be conducted);
(b) any waiver or compromise of a valuable right or of a
material debt owed to it;
(c) any resignation or termination of employment of any
key officer; and Purchaser, to the best of its knowledge, does not know
of the impending resignation or termination of employment of any such
officer;
(d) any loans made by Purchaser to or for the benefit of
its employees, shareholders, officers, or directors, or any members of
their immediate families, other than travel advances and other advances
made in the ordinary course of business;
(e) any declaration, setting aside, or payment of any
dividend or other distribution in respect of Purchaser 's capital stock,
or any direct or indirect redemption, purchase, or other acquisition of
any of such stock by Purchaser;
(f) any other event or condition of any character that
might materially and adversely affect the business, properties,
prospects, or financial condition of Purchaser (as such business is
presently conducted and as it is proposed to be conducted); or
(g) any agreement or commitment by Purchaser to do any
of the things described in this paragraph.
3.16 Employee; Employee Compensation. To the best of
Purchaser 's knowledge, no employee of Purchaser is obligated under any
contract (including licenses, covenants, or commitments of any nature)
or other agreement, or subject to any judgment, decree or order of any
court or administrative agency that would conflict with such employee's
obligation to use his or her best efforts to promote the interests of
Purchaser or that would conflict with its business as conducted or as
proposed to be conducted. To the best of Purchaser 's knowledge, no
employee of Purchaser is in violation of any term of any employment
contract, proprietary information and inventions agreement, non-
competition agreement, or any other contract or agreement relating to
the relationship of any such employee with Purchaser. Purchaser has no
collective bargaining agreements with any of its employees and to the
best of its knowledge, there is no labor union organizing activity
pending or threatened with respect to Purchaser. Except as set forth on
Schedule 3.16 of the Disclosure Schedule, there is no pension, health,
profit sharing, bonus, stock purchase, stock option, hospitalization,
insurance, severance, or any other employee benefit or welfare benefit
plan with respect to any officer or employee of Purchaser.
3.17 Proprietary Information.
(a) Purchaser has taken all reasonable security measures
to protect the secrecy, confidentiality, and value of all trade secrets,
know-how, inventions, designs, processes, and technical data required to
or used in its business, as currently conducted or as proposed to be
conducted.
(b) Each officer, employee, or consultant of Purchaser
who has access to material confidential information has signed or will
sign and deliver prior to the Closing (and each future such officer,
employee or consultant will sign) a proprietary information agreement
substantially in the standard form of such agreement (a copy of which
form has been provided to STE and STI's counsel), each of which
agreements remains in full force and effect as of the date hereof. To
the best of Purchaser 's knowledge, none of Purchaser 's current or
former officers, employees, or consultants is or will be in violation
thereof.
3.18 Taxes. Purchaser 's total income tax liabilities for the
2001 fiscal year will not exceed $______ . Purchaser has never had any
tax deficiency proposed or assessed against it, has not claimed
unsupportable deductions or has executed any waiver of any statute of
limitations on the assessment or collection of any tax or governmental
charge.
3.19 Books and Records. The books of account, minute books,
stock record books, and other records of Purchaser, all of which have
been made available to STE, STI and Servati and their representatives,
are complete and correct in all material respects and have been
maintained in accordance with sound business practices. The copy of the
minute books of Purchaser provided to STE, STI and Servati's counsel
contains minutes of all meetings of directors and committees thereof and
of shareholders and all actions by written consent without a meeting by
the directors and committees thereof and of shareholders since the dates
of incorporation of each and reflects accurately in all material
respects all actions by the directors (and any committee of directors)
and by the shareholders with respect to all transactions referred to in
such minutes. No meeting of Purchaser 's stockholders, board of
directors or any committee thereof has been held for which minutes have
not been prepared and included in the minute books.
3.20 Patents, Trademarks, etc.
(a) Purchaser owns or is licensed or otherwise possesses
legally enforceable rights to use all Intellectual Property (as defined
below) that is used to conduct its business as currently conducted or
planned to be conducted. For purposes of this Agreement, the term
"Intellectual Property" means all (i) patents, patent applications,
patent disclosures and all related continuation, continuation-in-part,
divisional, reissue, reexamination, utility, model, certificate of
invention and design patents, patent applications, registrations and
applications for registrations, (ii) trademarks, service marks, trade
dress, logos, trade names and corporate names and registrations and
applications for registration thereof, (iii) copyrights and
registrations and applications for registration thereof, (iv) mask works
and registrations and applications for registration thereof, (v)
computer software, data and documentation, (vi) trade secrets and
confidential business information, whether patentable or unpatentable
and whether or not reduced to practice, know-how, manufacturing and
production processes and techniques, research and development
information, copyrightable works, financial, marketing and business
data, pricing and cost information, business and marketing plans and
customer and supplier lists and information, (vii) other proprietary
rights relating to any of the foregoing and (viii) copies and tangible
embodiments thereof. Schedule 3.20 of the Disclosure Schedule lists (i)
all patents and patent applications and all trademarks, trademark
applications, registered copyrights, trade names and service marks which
are owned by and used in the business of the Purchaser, including the
jurisdictions in which each such Intellectual Property right has been
issued or registered or in which any such application for such issuance
or registration has been filed, (ii) all written licenses, sublicenses
and other agreements to which the Purchaser is a party and pursuant to
which any person is authorized to use any Intellectual Property rights
of the Purchaser, and (iii) all written licenses, sublicenses and other
agreements as to which the Companies is a party and pursuant to which
the Purchaser is authorized to use any third party patents, trademarks
or copyrights, including software ("Third Party Intellectual Property
Rights") which are used in the business of the Purchaser or which form a
part of any product or service of the Purchaser, all of which are in
full force and effect. Purchaser has made available to the Companies
correct and complete copies of all such patents, registrations,
applications, licenses and agreements (as amended to date) and related
documentation. Purchaser has not agreed to indemnify any person or
entity for or against any infringement, misappropriation or other
conflict with respect to any item of Intellectual Property that the
Companies owns or uses. Purchaser is not a party to any oral license,
sublicense or agreement which, if reduced to written form, would be
required to be listed in Schedule 3.20 to the Disclosure Schedule under
the terms of this Section 3.20.
(b) Purchaser will not be, as a result of the execution
and delivery of this Agreement or the performance of the Purchaser's
obligations under this Agreement, in breach of any license, sublicense
or other agreement relating to the Intellectual Property or Third Party
Intellectual Property Rights.
(c) Purchaser has not been named in any suit, action or
proceeding which involves a claim of infringement of any Intellectual
Property right of any third party. To the Purchaser's knowledge, the
manufacturing, marketing, licensing or sale of the products or
performance of the service offerings proposed by the Purchaser will not
infringe any Intellectual Property right of any third party; and to the
knowledge of the Purchaser, the Intellectual Property rights of the
Purchaser are not being infringed by activities, products or services of
any third party.
(d) Except as set forth on such Schedule 3.20, there are
no outstanding options, licenses, or agreements of any kind relating to
the Purchaser's Intellectual Property, nor is the Purchaser bound by or
a party to any options, licenses or agreements of any kind with respect
to the patents, trademarks, service marks, trade names, copyrights,
trade secrets, licenses, information, proprietary rights or processes of
any other person or entity.
3.21 Governmental Consents. All consents, approvals, orders,
or authorizations of, or registrations, qualifications, designations,
declarations, or filings with, any governmental authority, required on
the part of the Purchaser in connection with the valid execution and
delivery of this Agreement, the Employment Agreements, the offer, sale
or issuance of the Stock, or the consummation of any other transaction
contemplated hereby have been obtained, or will be effective at the
Closing, except for notices required or permitted to be filed with
certain state and federal Stock commissions after the Closing, which
notices will be filed on a timely basis.
3.22 Offering. Assuming the accuracy of the representations
and warranties of Purchaser contained in Section 3 hereof, the issuance
of the shares of Purchaser common stock: (a) is and will be exempt from
the registration and prospectus delivery requirements of the Securities
Act of 1933, as amended (the "1933 Act"); and neither STE nor STI nor
any authorized agent acting on either of their behalf will take any
action hereafter that would cause the loss of such exemption, and (b)
have been registered or qualified (or are exempt from registration and
qualification) under the registration, permit, or qualification
requirements of all applicable state securities laws.
3.23 Environmental Matters. Purchaser is, and at all times
has been, in full compliance with all environmental laws. Purchaser
knows of no basis for any assertion that it is responsible for any
damages or remediation of any property or other facility due to the
production, storage or dumping of any hazardous materials, whether by
the Purchaser or otherwise.
4. CONDITIONS TO CLOSING
4.1 Conditions to Obligations of the Purchaser at the
Closing. The Purchaser's obligation to purchase Shares at the Closing
is subject to the fulfillment to the Purchaser's satisfaction, at or
prior to the Closing, of all of the following conditions, any of which
may be waived by the Purchaser:
(a) Representations and Warranties; Performance of
Obligations. The representations and warranties made by the Companies
in Section 2 hereof shall be true and correct in all material respects
on the date of the Closing, with the same force and effect as if they
had been made on and as of said date; the business and assets of the
Companies shall not have been adversely affected in any material way
prior to the Closing; and the Companies shall have performed and
complied with all obligations and conditions herein required to be
performed or complied with by it in all material respects on or prior to
the Closing.
(b) Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the
Closing, and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to the
Purchaser's counsel, which shall have received all such counterpart
originals or certified or other copies of such documents as it may
reasonably request.
(c) Qualifications; Legal InveSTIent. All
authorizations, approvals, or permits, if any, of any governmental
authority or regulatory body of the United States or of any state that
are required in connection with and prior to the lawful sale and
issuance of the Shares pursuant to this Agreement shall have been duly
obtained and shall be effective on and as of the Closing. No stop order
or other order enjoining the sale of the Shares shall have been issued
and no proceedings for such purpose shall be pending or, to the
knowledge of the Companies, threatened by the SEC, the California
Commissioner of Corporations, or a similar official of any other state
having jurisdiction over this transaction. At the time of the Closing,
the sale and issuance of the Shares shall be legally permitted by all
laws and regulations to which the Purchaser and the Companies are
subject.
(d) Bylaws. The Bylaws of STE and STI shall provide
that the size of the board of directors of the Companies shall be set at
three (3), two (2) of whom shall be nominated by Xxxxx Xxxxxxx and one
of whom will be Xxxxx Xxxxxxx or his successor; it being understood,
however, that the board of directors of Purchaser shall be ultimate
governing board of each of STE, STI and Purchaser and that Xxxxx Xxxxxxx
will be one of not less than three members of the board of directors of
Purchaser.
(e) Compliance Certificate. STE and STI shall have
delivered to the Purchaser a certificate of STE and of STI, executed by
the President of each, dated the date of the Closing, certifying to the
fulfillment of the conditions specified in subparagraph (a) of this
Section 4.1.
(f) Due Diligence. The Purchaser shall have had the
right to conclude to its reasonable satisfaction its legal and financial
due diligence with respect to the Companies, including without
limitation a review of the Companies' intellectual property.
(g) At the Closing, the Companies' respective board of
directors will be comprised of three (3) persons, namely: Xxxxxx Xxxxxx,
Xxxxx Xxxxxxx and another board member to be named by Xxxxx
Xxxxxxx._Additionally, XXXXX XXXXXX will be nominated as an advisor to
the board of directors.__________.
4.2 Conditions to Obligations of the Companies at the
Closing. The Companies' obligation to issue and sell the Shares under
this Agreement to Purchaser is subject to the fulfillment to the
Companies' satisfaction, on or prior to the Closing, of the following
conditions as to such Purchaser, any of which may be waived by the
Companies:
(a) Representations and Warranties, Performance of
Obligations. The representations and warranties made by such Purchaser
in Section 3 hereof shall be true and correct at the date of the
Closing, with the same force and effect as if they had been made on and
as of said date. Such Purchaser shall have performed and complied with
all agreements and conditions herein required to be performed or
complied with by it on or before the Closing.
(b) Qualifications, Legal InveSTIent. All
authorizations, approvals, or permits, if any, of any governmental
authority or regulatory body of the United States or of any state that
are required in connection with the lawful sale and issuance of the
Shares pursuant to this Agreement shall have been duly obtained and
shall be effective on and as of the Closing. No stop order or other
order enjoining the sale of the Shares shall have been issued and no
proceedings for such purpose shall be pending or, to the knowledge of
the Companies, threatened by the SEC, the California Commissioner of
Corporations, or any similar officer of any other state having
jurisdiction over this transaction. At the time of the Closing, the
sale and issuance of the Shares shall be legally permitted by all laws
and regulations to which such Purchaser and the Companies are subject.
(c) Payment of Purchase Price. Purchaser shall have
delivered the Purchase Price at the Closing for the Shares purchased by
it.
(d) Distribution to Xxxxx Xxxxxxx. Forty-nine percent
(49%) of the current year's profit of STE and STI at the time of Closing
shall be distributed to Xxxxx Xxxxxxx within thirty (30) days of
Closing. Any income taxes payable by reason of such distribution shall
be borne by the recipient of such distribution.
(e) Bonusesto be paid to Xxxxx Xxxxxxx. At the end of
the tenth month of each fiscal year in which Xxxxx Xxxxxxx is a
shareholder of the Companies during any portion of that year, net
profits of the Companies shall be determined which shall include
projections for the remainder of the fiscal year. Such net profit
determined shall be paid to Xxxxx Xxxxxxx in the form of a bonus in
accordance with the percentage of shares of outstanding stock owned by
Xxxxx Xxxxxxx. In the event that ownership of shares of stock are
transferred other than at the beginning of a fiscal year, bonus amount
shall be prorated. Any income taxes payable by reason of such bonus
shall be payable by Xxxxx Xxxxxxx. Such bonus shall be paid prior to
the fiscal year end.
(f) Management Fee to be paid to KleenAir Systems, Inc.
At the end of the tenth month of each fiscal year in which KleenAir
Systems, Inc. is a shareholder of the Companies during any portion of
that year a management fee shall be paid. Such management fee shall be
equal to that percentage of the net profits of the Companies that
represents the percentage of shares of outstanding stock owned by
KleenAir Systems, Inc. Determining net profits of the Companies shall
include projections for the remainder of the fiscal year. In the event
that ownership of shares of stock are transferred other than at the
beginning of a fiscal year, the amount of such management fee shall be
prorated. Such management fee shall be paid prior to the fiscal year
end.
(g) Non-Dilution of Share Ownership. A Shareholders
Agreement shall be signed protecting shareholders' stock ownership
percentage in the Companies by prohibiting issuance of additional shares
of stock of the Companies, while Xxxxx Xxxxxxx remains a shareholder of
either STE or STI, without the prior unanimous written consent of all
shareholders.
5. POST CLOSING OBLIGATIONS OF THE PARTIES
Fees and Expenses. The Companies and Purchaser shall each pay
them, respectively, all expenses incurred by the Purchaser in connection
with the transaction contemplated by this Agreement (including
attorneys' fees). In addition, if legal action is brought by, or on
behalf of, the Purchaser or by the Companies to enforce or interpret
this Agreement, the prevailing party shall be entitled to recover its
attorneys' fees and legal costs in connection therewith.
6. MISCELLANEOUS
6.1 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Michigan as applied to
agreements among Michigan residents, made and to be performed entirely
within the State of Michigan. If any Michigan law or laws shall require
or permit the application of the laws of any other jurisdiction to this
Agreement, such Michigan law or laws shall be disregarded with the
effect that the remaining laws of the State of Michigan shall
nonetheless be applied. Any litigation arising from the interpretation
or enforcement of this Agreement shall only be filed within a court of
competent jurisdiction located within the County of Xxxxx, State of
Michigan.
6.2 Survival. The representations, warranties, covenants,
and agreements made herein shall survive any investigation made by
Purchaser and the Companies and the closing of the transactions
contemplated hereby and shall in no way be affected by any investigation
of the subject matter thereof made by or on behalf of the Purchaser or
the Companies.
6.3 Successors and Assigns. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of,
and be binding upon, the successors, assigns, heirs, executors, and
administrators of the parties hereto.
6.4 Entire Agreement. This Agreement, the Exhibits hereto,
and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement among the parties with regard to
the subjects hereof and no party shall be liable or bound to any other
party in any manner by any covenants or agreements except as
specifically set forth herein or therein. Nothing in this Agreement,
express or implied, is intended to confer upon any party, other than the
parties hereto and their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided herein.
6.5 Severability. In case any provision of this Agreement
shall be invalid, illegal, or unenforceable, it shall, to the extent
practicable, be modified so as to make it valid, legal and enforceable
and to retain as nearly as practicable the intent of the parties; and
the validity, legality, and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
6.6 Amendment and Waiver. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance, either retroactively or
prospectively, and either for a specified period of time or
indefinitely), with the written consent of STE, STI and Xxxxx Xxxxxxx
and the Purchaser.
6.7 Notices, etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be deemed
effectively given upon personal delivery or on the third day following
mailing by registered or certified mail, return receipt requested,
postage prepaid, addressed:
If to Purchaser: KleenAir Systems, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxx,Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000)000-0000
With a copy to: Xxxxx Xxxxxx & Xxxx LLP
1900 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxx Xxxxx
Facsimile: (000) 000-0000
If to Xxxxx Xxxxxxx: ____________________
____________________
Attention: Xxxxx Xxxxxxx
Facsimile: ____________
or at such other address as
Xxxxx Xxxxxxx shall have
furnished to the Purchaser in
writing,
with a copy to: Xxxxxxx X. XxXxxxxx
00000 Xxxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: _____________
Facsimile: _____________
If to the either STE or STI: ____________________
____________________
Attention: Xxxxx Xxxxxxx
Facsimile: ____________
or at such other address as
Xxxxx Xxxxxxx shall have
furnished to the Purchaser in
writing,
with a copy to: Xxxxxxx X. XxXxxxxx
00000 Xxxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: _____________
Facsimile: _____________
6.8 Brokers' Fees.
(a) STE, STI and Xxxxx Xxxxxxx (i) represent and warrant
that none of them has retained a finder or broker in connection with the
transactions contemplated by this Agreement and (ii) hereby agree to
indemnify and to hold the Purchaser harmless of and from any liability
for any commission or compensation in the nature of a brokerage or
finder's fee to any broker or other person or firm (and the costs and
expenses, including reasonable attorneys' fees, of defending against
such liability or asserted liability) for which STE or STI or any of its
employees or representatives are responsible.
(b) The Purchaser (i) represents and warrants that it
has retained no finder or broker in connection with the transactions
contemplated by this Agreement, and (ii) hereby agrees to indemnify and
to hold STE, STI and Xxxxx Xxxxxxx harmless of and from any liability
for any commission or compensation in the nature of a brokerage or
finder's fee to any broker or other person or firm (and the costs and
expenses, including reasonable attorneys' fees, of defending against
such liability or asserted liability) for which such Purchaser or any of
its employees or representatives is responsible.
6.9 Titles and Subtitles, Number and Gender. The titles of
the paragraphs and subparagraphs of this Agreement are for convenience
of reference only and are not to be considered in construing this
Agreement. Whenever the context requires, the plural shall include the
singular and the reverse and each gender shall include the others.
6.10 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one instrument.
Executed as of this ______ day of October 2002.
By: By:
ServoTech Industries, Inc. KleenAir Systems, Inc.
/s/ XXXXX XXXXXXX /s/ XXXXXX XXXXXX
Xxxxx Xxxxxxx, President Xxxxxx Xxxxxx, President
By:
ServoTech Engineering, Inc.
/s/ XXXXX XXXXXXX
Xxxxx Xxxxxxx, President
By:
Xxxxx Xxxxxxx
/s/ XXXXX XXXXXXX
Xxxxx Xxxxxxx, Individually
