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EXHIBIT 2.2
CONTINUING GUARANTY
THIS CONTINUING GUARANTY (this "Guaranty") is made as of October 18,
1999, by POLYMER SOLUTIONS, INC., a Nevada corporation ("Guarantor"), in favor
of FREDERICK PARKINSON ("Parkinson"), with reference to the following facts:
RECITALS
1. Pursuant to that certain Stock Purchase Agreement, dated October 15,
1999 (the "Stock Purchase Agreement"), by and among Alternative Materials
Technology, a Nevada corporation ("AMT"), U.S. Cellulose Co., a California
corporation (the "Company") and Parkinson, Parkinson requires that AMT accept,
assume, satisfy and perform all of the Company's obligations under the Severance
Plan in the U.S. Cellulose Co. Employee Severance Plan, dated October 15, 1999
(the "Severance Plan") and that Guarantor guaranty AMT's acceptance, assumption,
satisfaction and performance of such obligations.
2. The execution of the Stock Purchase Agreement by Parkinson and AMT is
valuable to Guarantor, and this Guaranty is in furtherance of Guarantor's
business and other interests.
GUARANTY
NOW, THEREFORE, in consideration of Parkinson executing the Stock
Purchase Agreement, and as an inducement to Parkinson to do so, Guarantor hereby
agrees, covenants and warrants as follows:
1. CONSIDERATION. Guarantor acknowledges that the giving of this
Guaranty is a material condition precedent to Parkinson executing the Stock
Purchase Agreement, and that Guarantor has derived or expects to derive material
financial advantages or other benefits commensurate in value to the obligations
and liabilities being undertaken by Guarantor under the terms of this Guaranty.
2. ASSUMPTION OF SEVERANCE PLAN GUARANTEED. In consideration of the
foregoing, and for other valuable consideration, Guarantor unconditionally,
irrevocably and absolutely guarantees the full acceptance, assumption,
satisfaction and performance by AMT of all of the Company's obligations under
the Severance Plan. This Guaranty is irrevocable and unconditional. This
Guaranty shall continue to be effective or be reinstated, as the case may be.
3. NATURE OF GUARANTOR'S LIABILITY. The obligations and liabilities of
Guarantor under this Guaranty are independent of the obligations and liabilities
of AMT, and a separate action or actions may be brought and prosecuted against
Guarantor whether action is brought against AMT or any other guarantor or
Person, or whether AMT or any other guarantor or Person are joined in any such
action or actions. As used in this Guaranty, "Person" means any individual or
entity.
4. GUARANTOR'S AUTHORIZATION. Guarantor authorizes Parkinson, without
notice, demand or consent of any kind, and without affecting Guarantor's
liability under this Guaranty, from time to time, to release or substitute any
Person liable under the Severance Plan, any other guarantor
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of the Severance Plan, or any other Person providing support for the Severance
Plan to Parkinson, this Guaranty, or any other guaranty.
5. PARKINSON' REMEDIES. Guarantor waives any right to require Parkinson
to do any one or more of the following: (a) proceed against AMT or any other
guarantor or Person liable under the Severance Plan; or (b) pursue any other
remedy in Parkinson' power whatsoever.
6. WAIVERS. Guarantor waives any and all rights or defenses arising by
reason of:
(1) the statute of limitations in any action as to or relating to
this Guaranty or the Stock Purchase Agreement, except that as may be asserted or
pleaded by AMT under the Stock Purchase Agreement;
(2) the omission of any demand, presentment, protest or notice of
any kind, including without limitation notice of default under the Stock
Purchase Agreement; or
(3) until all the obligations are satisfied, any claims or other
rights which Guarantor may now have or hereafter acquire against AMT, which
claims or other rights arise from the existence or performance of Guarantor's
obligations under this Guaranty or the obligations including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification.
7. NOTICES. Any notice given by any party under this Guaranty shall be
in writing and personally delivered, sent by United States mail, postage
prepaid, or sent by telex or other authenticated message, charges prepaid and
addressed as follows:
To Guarantor:
Polymer Solutions, Inc.
311 Otterson Drive, Suite 60
Chico, California 95928
Attention: E. Laughlin Flanagan
Facsimile: (530) 896-0657
To Parkinson:
Frederick Parkinson
3609 Warner Drive
San Jose, California 95127
Facsimile: _____________
With Copy to Hannig Law Firm
2991 El Camino Real, Suite 100
Redwood City, CA 94061-4003
Attention: Ted Hannig
Facsimile: (650) 482-2820
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Guarantor and Parkinson may change the place to which notices, requests,
and other communications are to be sent by giving written notice of such change
to the other.
8. BINDING EFFECT. This Guaranty shall be binding upon Guarantor, its
permitted successors, representatives and assigns, and shall inure to the
benefit of Parkinson and their successors and assigns; provided, however, that
Guarantor may not assign or transfer its obligations under this Guaranty without
the prior written consent of Parkinson, which consent may be withheld in
Parkinson' sole discretion.
9. NO WAIVER. Any waiver, consent or approval of any kind by Parkinson
must be in writing and shall be effective only to the extent set forth in such
writing. No failure or delay on the part of Parkinson in exercising any power,
right or privilege under this Guaranty shall operate as a waiver thereof, and no
single or partial exercise of any such power, right or privilege shall preclude
any further exercise thereof, or the exercise of any other power, right or
privilege.
10. RIGHTS CUMULATIVE. All rights and remedies existing under this
Guaranty are cumulative to, and not exclusive of, any other rights or remedies
under contact or applicable law.
11. UNENFORCEABLE PROVISIONS. Any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall be so only as to such
jurisdiction and only to the extent of such prohibition or unenforceability, but
all the remaining provisions of this Guaranty shall remain valid and
enforceable.
12. GOVERNING LAW. This Guaranty shall be governed by and construed in
accordance with the laws of the State of California.
13. CHOICE OF FORUM. Any dispute that arises under or relates to this
Guaranty (whether contract, tort, or both) shall be resolved in a superior court
in San Francisco, California. Each of the parties hereby irrevocably waives, to
the fullest extent permitted by law, any objection that it may now or hereafter
have to the laying of venue in any such court and any claim that any such court
is an inconvenient forum.
14. INDEMNIFICATION. Guarantor shall pay and protect, defend and
indemnify Parkinson and his agents and representatives against, and hold
Parkinson harmless from, all claims, actions, proceedings, liabilities, damages,
losses, expenses (including without limitation attorneys' fees and costs) and
other amounts incurred by Parkinson arising from (a) the matters contemplated by
this Guaranty or (b) any contention that AMT or Guarantor has failed to comply
with any law, rule, regulation, order or directive applicable to AMT's or
Guarantor's sales, leases or performance of services to their respective
customers, including without limitation those sales, leases and services
requiring consumer or other disclosures; provided, however, that this
indemnification shall not apply to any of the foregoing incurred solely as a
result of Parkinson' gross negligence or willful misconduct. This
indemnification shall survive the payment and satisfaction of all Guarantor's
obligations and liabilities to Parkinson.
15. COMPULSORY ARBITRATION; LEGAL FEES. Any controversy, claim and/or
dispute arising out of or relating to this Guaranty or the breach hereof or
subject matter hereof (including any action in tort) shall be finally and
exclusively settled by arbitration in San Francisco, California, in
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accordance with the then-existing Commercial Arbitration Rules of the American
Arbitration Association (the "AAA"), and judgment upon the award rendered by the
arbitrators may be entered in any court having applicable jurisdiction. Written
notice of demand for arbitration shall be given to the other parties and to the
AAA within six (6) months after the controversy, claim or dispute has arisen or
be barred, and in no event after the date when the institution of court
proceedings based on such dispute would be barred by the applicable statute of
limitations. Controversies, claims and/or disputes shall be resolved by one
arbitrator selected by the mutual agreement of the parties or, failing that
agreement within 45 days after written notice demanding arbitration, by the AAA.
There shall be limited discovery prior to the arbitration hearing as follows:
(i) exchange of witness lists and copies of documentary evidence and documents
related to or arising out of the issues to be arbitrated, and (ii) depositions
of all party witnesses. Depositions shall be conducted in accordance with the
California Code of Civil Procedure, and a court reporter shall record all
hearings, with such record constituting the official transcript of such
proceedings. All decisions of the arbitrator(s) shall be in writing, and the
arbitrator(s) shall provide reasons for the decision. If any arbitration or
action at law or in equity is necessary to enforce or interpret the terms of
this Guaranty or to protect the rights obtained under this Guaranty, the
prevailing party shall be entitled to its reasonable attorneys' fees, costs and
disbursements in addition to any other relief to which it may be entitled.
16. ENTIRE AGREEMENT. This Guaranty is intended by Guarantor and
Parkinson as the final expression of Guarantor's obligations and liabilities to
Parkinson described herein and supersedes all prior understandings or agreements
concerning the subject matter hereof. This Guaranty may be amended only by a
writing signed by Guarantor and Parkinson.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as set
forth below.
GUARANTOR:
POLYMER SOLUTIONS, INC., a Nevada
corporation
Date: October 18, 1999 By: /s/ E.L. FLANAGAN
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E. Laughlin Flanagan
President
Date: October 18, 1999 By: /s/ D.F. JONES
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Darryl F. Jones
Secretary and Treasurer
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