EXHIBIT 10.1
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PURCHASE AGREEMENT
Purchase Agreement (the "Agreement") made this day of
, 1998, by and between TDA Industries, Inc., a New York corporation,
with an office at 122 East 42nd Street, Suite 1116, New York, New York 10168
(hereinafter the "Seller"), and Eagle Supply Group, Inc., a Delaware
corporation, with an office at 122 East 42nd Street, Suite 1116, New York,
New York 10168 (hereinafter the "Buyer").
WITNESSETH:
WHEREAS, Seller is the owner of all the issued and outstanding capital
stock of (a) Eagle Supply, Inc., a Florida corporation, with an office at 1451
Channelside Drive, Tampa, Florida 33629 (hereinafter "Eagle") and (b) JEH/Eagle
Supply, Inc., a Delaware corporation, with an office at 2500 U.S. Highway 287,
P.O. Box 463, Mansfield, Texas 76068 (hereinafter "JEH Eagle"); and
WHEREAS, Seller hereby agrees to sell and deliver to Buyer, and Buyer
agrees to purchase, all of the issued and outstanding capital stock of Eagle and
JEH Eagle; and
WHEREAS, Buyer has filed a registration statement on Form S-1 (such
registration statement and the financial statements contained therein and all
amendments and exhibits thereto are hereinafter referred to as the "Registration
Statement") for an underwritten public offering of its equity securities
pursuant to which it will derive gross proceeds of not less than $10,300,000
(the "Public Offering").
NOW, THEREFORE, in consideration of the promises and the
representations, warranties, covenants and agreements contained in this
Agreement, each of the parties hereto hereby agrees as follows:
ARTICLE I
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RECITALS
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Recitals. The parties confirm that each of the foregoing
recitations are true and correct in all respects and are incorpo-
rated herein.
ARTICLE II
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THE EAGLE SHARES AND THE JEH EAGLE SHARES
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Eagle Shares and JEH Eagle Shares. Seller shall sell to Buyer
(a) Five Hundred Ninety Three (593) restricted shares of Eagle's
common stock (the "Eagle Shares") and (b) Three Thousand (3,000) restricted
shares of JEH Eagle's common stock (the "JEH Eagle Shares"), representing all of
the issued and outstanding capital stock of Eagle and JEH Eagle, respectively,
for the consideration specified in Article IV below.
ARTICLE III
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CLOSING
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The Closing. Simultaneously with a closing of the Public Offering, the
closing of this Agreement and the transactions contemplated hereby (the
"Closing") are to take place simultaneously with the delivery of the documents
evidencing consideration for the transactions contemplated herein as set forth
in Article IV below at the law offices of David A. Carter, Esq., 2300 Glades
Road, Suite 210W, Boca Raton, Florida 33431, or at such location as the parties
hereto may agree upon. The date upon which the Closing occurs is herein referred
to as the "Closing Date".
ARTICLE IV
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CONSIDERATION
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4.1 Eagle Shares and JEH Eagle Shares. At the Closing, the Seller will
deliver to Buyer certificates for the Eagle Shares and JEH Eagle Shares duly
executed by each of their authorized officers in proper form for transfer to
Buyer.
4.2 Buyer's Shares. At the Closing, the Buyer will deliver to Seller
certificate(s) representing 2,000,000 shares of Buyer's common stock ($.0001 par
value per share), duly executed by its authorized officers and in proper form
for transfer to Seller (the "Buyer's Shares").
4.3 Book Value. At the Closing, Eagle and JEH Eagle will have a
combined book value of not less than $1,000,000 (net of the cancellation of
indebtedness of Seller to Eagle as set forth in Section 4.4 below). In the event
Eagle and JEH Eagle do not have a combined book value of at least $1,000,000 (as
determined by the internal financial records of each of Eagle and JEH Eagle) at
the Closing, Seller agrees to deliver to Eagle and/or JEH Eagle, within
forty-five (45) days after the Closing, sufficient funds by certified check or
wire transfer to achieve the foregoing $1,000,000 book value requirement as of
the Closing Date.
4.4 Dividend. At the Closing, the parties agree to cause Eagle to
cancel, by way of a non-cash dividend, all indebtedness of Seller to Eagle (the
"Dividend").
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ARTICLE V
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REPRESENTATIONS AND WARRANTIES OF SELLER
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5.1 Representations and Warranties of Seller. Except as and/or to the
extent disclosed in the Registration Statement for the Public Offering as filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), true copies of which
Registration Statement have been and/or will be delivered by Seller to Buyer as
a material inducement to Buyer to execute and perform its obligations under this
Agreement, Seller represents and warrants to Buyer as of the date hereof, as
follows:
A. Organization and Good Standing - Compliance. Eagle and JEH
Eagle are duly organized, validly existing and in good standing under the laws
of their respective states of incorpora- tion, with full power and authority to
own or lease and operate each of their properties and assets, material to the
operation of each of their businesses, and to carry on each of their businesses
as presently being conducted, and have obtained all licenses, permits or other
authorizations and have taken all actions required by applicable law or
governmental regulations, material to the operation of each of their businesses,
to conduct each of their businesses. Seller has received no notice of, and does
not know of, any violation of any applicable regulation, ordinance or other law,
order, or governmental requirement, material to the operation of each of their
businesses. True copies of the Articles of Incorporation and By-Laws certified
by the Secretaries of Eagle and JEH Eagle, and true copies of all corporate
minutes of Eagle and JEH Eagle have been made available to or delivered to
Buyer, including all amendments thereto.
B. Eagle's Capitalization. Eagle's total authorized capital
stock is Fifteen Hundred (1,500) shares of common stock (par value $100.00 per
share), of which Five Hundred Ninety Three (593) shares of common stock are
issued and outstanding.
C. JEH Eagle's Capitalization. JEH Eagle's total authorized
capital stock is Three Thousand (3,000) shares of common stock (par value $.01
per share), all of which shares are issued and outstanding.
D. Liens and Encumbrances. There are no liens, encumbrances,
pledges, probational agreements or claims of any nature against the Eagle Shares
or JEH Eagle Shares to be delivered to Buyer by Seller.
E. Securities Law. The Eagle Shares are validly issued, fully
paid and non-assessable and were offered and sold in accordance with applicable
federal and state securities laws or applicable exceptions thereunder, and there
are no preemptive
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rights in respect thereof. There are no outstanding options, warrants, rights,
calls, puts, commitments, plans or other agreements of any character providing
for the purchase or issuance of any authorized but unissued capital stock of
either of Eagle or JEH Eagle.
E. Financial Statements. Eagle's and JEH Eagle's financial
statements contained in the Registration Statement represent accurately and
fairly the financial condition and results of the operations of Eagle and JEH
Eagle at the respective dates or for the respective periods covered thereby in
accordance with generally accepted accounting principles applied on a consistent
basis or in accordance with the descriptions relating to such financial
statements as set forth in the Registration Statement.
F. Books and Records. The books and records of Eagle and JEH
Eagle reflect all of the material debts, liabilities and obligations of any
nature (whether absolute, accrued or otherwise, and whether due or to become
due) of Eagle and JEH Eagle at the dates thereof. There are no contingent
liabilities of Eagle or JEH Eagle of a material nature, other than as reflected
in such books and records and the Registration Statement, and neither Eagle nor
JEH Eagle have given any guarantees of the obligations of any other person or
entity other than as reflected in the Registration Statement.
G. Absence of Undisclosed Liabilities. Neither Eagle nor JEH
Eagle has any material liabilities, whether accrued, absolute, contingent, or
otherwise, including without limitation, tax liabilities due or to become due,
and whether incurred in respect of or measured by either of their incomes except
as reflected in the Registration Statement or incurred subsequent to the date of
the financial statements set forth in the Registration Statement in the ordinary
course of either of their businesses. Seller does not know or have reasonable
grounds to know of any basis for the assertion against Eagle or JEH Eagle of any
material liability not fully reflected in the Registration Statement or reserved
against.
H. Title to Properties. Eagle and JEH Eagle each have good and
marketable title to their respective assets, including those reflected in the
Registration Statement (except as may be sold, exchanged or otherwise disposed
of in the ordinary course of business). Neither Eagle's nor JEH Eagle's assets
are subject to any material security interest, mortgage, pledge, lien,
encumbrance, or charge except as disclosed in the Registration Statement as
securing specified liabilities set forth therein.
I. Subsidiaries. Neither Eagle nor JEH Eagle has any
material subsidiaries or material interest in any other corpora-
tion, firm, partnership or other entity.
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J. Power and Authority. Seller has full power to sell and
deliver the Eagle Shares and JEH Eagle Shares upon the terms set forth herein.
There is no agreement to issue any additional shares of Eagle or JEH Eagle or to
redeem, purchase or otherwise acquire any of the Eagle Shares or JEH Eagle
Shares. Upon delivery of the Eagle Shares and JEH Eagle Shares, the Buyer will
receive good and marketable title thereto, free and clear of all liens,
encumbrances, equities and claims whatsoever and subject only to the
restrictions of state and federal securities laws.
K. Tax Returns and Payments. Each of Eagle and JEH Eagle has
duly filed all tax returns, tax reporting forms and reports required to be filed
by each of them, and have paid all taxes, assessments, governmental charges and
payments to third party payors which were due and payable. Neither Eagle nor JEH
Eagle have entered into any agreement, waiver or other arrangement providing for
an extension of time with respect to the filing of any tax return or the payment
or assessment of any tax, governmental charge, deficiency or third party payment
relating to either of them. Each of Eagle and JEH Eagle have withheld from each
payment to each of their employees the amount of all taxes (including but not
limited to United States federal income taxes, applicable state and municipal
income taxes, Federal Insurance Contribution Act contributions and all other
mandated employee taxes or contributions) legally required to be withheld
therefrom and has paid the same to the proper tax receiving offices, except for
such amounts withheld but not yet payable, if any.
L. Tax Returns. Each of Eagle and JEH Eagle has duly filed all
reports or returns required to be filed with governmental authorities relating
in any manner to either of their properties, which the failure to file may
materially adversely affect the operation of either of their businesses,
respectively.
M. Insurance. Each of Eagle and JEH Eagle maintains in full
force and effect all policies of insurance and any renewals thereof and has
given all notices and presented all claims, if any, under all policies of
insurance when due, except as reflected in the Registration Statement.
N. Mortgages, Liens and Encumbrances. Neither Eagle nor JEH
Eagle has mortgaged, pledged, hypothecated or otherwise encumbered any of its
assets, tangible or intangible, material to the operation of its business,
except as set forth in the Registration Statement.
O. No Asset Sale. Neither Eagle nor JEH Eagle has entered into
or agreed to enter into any agreement or arrangement granting any rights to
purchase any of its assets material to the operation of its business other than
in the ordinary course of its respective business.
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P. Capital Expenditures. Neither Eagle nor JEH Eagle has made
any commitment for capital expenditures of a material nature that is not in the
ordinary course of its respective business.
Q. Material Agreements. Neither Eagle nor JEH Eagle has
entered into, become a party to, waived any right under, amended or cancelled
any material contract, agreement or commitment nor has there been any material
defaults thereunder except as reflected in the Registration Statement or except
in the ordinary course of its respective business.
R. Material Obligations. Each of Eagle and JEH Eagle has paid
all of its respective material obligations to third parties, including vendors,
in a timely manner in the ordinary course of business.
S. No Financial Changes. Since the respective dates of the
financial statements contained in the Registration Statement, there has been no
material change in the condition or general affairs of either Eagle or JEH
Eagle, financial or otherwise, other than as contemplated by this Agreement or
reflected in the Registration Statement.
T. No Suits Pending or Imminent. Except as may be immaterial
to either Eagle or JEH Eagle, their respective businesses, financial condition
and results of operations, there are no actions at law or equity or
administrative proceedings pending or threatened against either Eagle or JEH
Eagle in which either Eagle or JEH Eagle is a plaintiff, defendant, petitioner,
indemnifier, or respondent, or in which it is anticipated that either Eagle or
JEH Eagle will join or be joined as a party.
U. Copies of Tax Returns. Seller has delivered to Buyer true
and correct copies of each federal and state tax return (or outstanding
extension, if any) filed by (i) Eagle during the period of time commencing on
July 1, 1992 through the Closing of this Agreement and (ii) JEH Eagle during the
period of time commencing with its corporate existence through the Closing of
this Agreement.
V. Compliance with Law. The business and operations of Eagle
and JEH Eagle have been and are being conducted in accordance with all
applicable laws, rules and regulations.
W. No Default of Contracts, Employee Obligations, Contractual
Obligations or Organizational Documents. None of the contracts, or obligations
or liabilities, material to either of Eagle's or JEH Eagle's business
operations, are in default. All such contracts are valid and binding obligations
of the parties thereto in accordance with their respective terms, there have
been no amendments or modifications thereto not reflected in the books
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and records of either Eagle or JEH Eagle, and there are no known material
liabilities of the parties thereto arising from any breach of or default in any
provision thereof by any party thereto except as may be disclosed in the books
and records of Eagle or JEH Eagle or in the Registration Statement. Neither
Eagle nor JEH Eagle is in default under any agreement, contract or instrument,
material to its business operations, which require services to be performed, and
no claim of default has been made or threatened by or against either Eagle or
JEH Eagle with respect to any such agreement, contract or instrument. Neither
Eagle nor JEH Eagle is in violation of its Articles of Incorporation, By-Laws or
other organizational documents.
X. Agreement Creating Default or Acceleration. Except as
reflected in the Registration Statement or contemplated by this Agreement, the
execution, delivery and performance of this Agreement and of each and every
agreement, document and instrument and the consummation of the transactions
contemplated hereby and thereby do not and will not (i) constitute a breach or
default (or an occurrence which by lapse of time and/or by the giving of notice
would constitute a breach or default) under any agreement, lease, license,
franchise, contract or commitment to which Seller, Eagle or JEH Eagle is a party
or by which any of them or their properties or assets is bound; (ii) result in
the creation or the imposition of any lien, encumbrance, security interest or
charge in favor of any other party upon any of the properties or assets of
Seller, Eagle or JEH Eagle; or (iii) result in the cancellation or termination
of, or the acceleration of the performance of any obligations or of any
indebtedness under any contract, agreement, commitment, indenture, mortgage,
note, bond, license or other instrument or obligation to which Seller, Eagle or
JEH Eagle is now a party or by which Seller, Eagle or JEH Eagle or any of their
respective properties or assets may be bound or affected.
5.2 Investment Intent. Seller is acquiring Buyer's shares for its own
account, for investment only and not with a view to the distribution or resale
thereof. Seller and its officers and directors have such knowledge and
experience in financial and business matters that they are capable of evaluating
the merits and risks of Seller's purchasing the Buyer's Shares; and Seller
understands that none of the Buyer's Shares have been registered for resale
under the Act. Seller is fully aware of the fact that Buyer is relying upon this
investment representation, and Seller hereby represents that it will not pledge,
hypothecate, offer, sell, transfer, assign or otherwise dispose of the Buyer's
Shares except in compliance with the provisions of the Act.
Seller acknowledges that the certificate(s) for the Buyer's Shares will
be legended to indicate that the Buyer's Shares represented thereby have not
been registered under the Act, the Buyer's Shares were acquired for investment
and may not be pledged, hypothecated, sold or transferred in the absence of a
registration
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statement effective under the Act for said shares or an opinion of counsel
satisfactory to Buyer that registration is not required under the Act, and that
"stop transfer" instructions with respect to the Buyer's Shares will be
maintained by the transfer agent for Buyer and/or on Buyer's stock transfer
records.
5.3 Accuracy of Representations. To the best of Seller's knowledge and
belief, no representation or warranty in this Article V or elsewhere in this
Agreement, or in any certificate or document furnished or to be furnished by
Seller pursuant hereto, contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements contained herein
or therein not misleading. To the best of Seller's knowledge and belief, all
facts have been disclosed in the Registration Statement regarding matters that
would materially adversely affect Eagle, JEH Eagle or either of their business
operations.
ARTICLE VI
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REPRESENTATIONS AND WARRANTIES OF BUYER
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6. Representations and Warranties of Buyer. Except as disclosed in the
Registration Statement, as a material inducement to Seller to execute and
perform its obligations under this Agreement, Buyer represents and warrants to
Seller as of the date hereof as follows:
A. Investment Intent. Buyer is acquiring the Eagle Shares and
JEH Eagle Shares for its own account, for investment only and not with a view to
the distribution or resale thereof. Buyer (and its officers and directors) have
such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of purchasing the Eagle Shares and
the JEH Eagle Shares; and Buyer understands that none of the Eagle Shares and
the JEH Eagle Shares have been registered for resale under the Act. Buyer is
fully aware of the fact that Seller is selling the Eagle Shares and the JEH
Eagle Shares in reliance upon the exemption provided in Section 4(2) of the Act
and is relying upon this investment representation, and Buyer hereby represents
that it will not pledge, hypothecate, offer, sell, transfer, assign or otherwise
dispose of the Eagle Shares or the JEH Eagle Shares except in compliance with
the provisions of the Act.
Buyer acknowledges that the certificate(s) for the Eagle
Shares and the JEH Eagle Shares will be legended to indicate that such shares
represented thereby have not been registered under the Act, as amended, such
shares were acquired for investment and may not be pledged, hypothecated, sold
or transferred in the absence of a registration statement effective under the
Act for the Eagle Shares and the JEH Eagle Shares or an opinion of counsel that
registration is not required under the Act, and that "stop transfer"
instructions with respect to such shares will be
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maintained by the transfer agent for Eagle and JEH Eagle and/or on Eagle's and
JEH Eagle's stock transfer records.
B. Agreement Creating Default or Acceleration. The execution,
delivery and performance of this Agreement and of each and every agreement,
document and instrument and the consummation of the transactions contemplated
hereby and thereby do not and will not (i) constitute a breach or default (or an
occurrence which by lapse of time and/or by the giving of notice would
constitute a breach or default) under any agreement, lease, license, franchise,
contract or commitment to which Buyer is subject or party or by which its
properties or assets are bound; (ii) result in the creation or the imposition of
any lien, encumbrance, security interest or charge in favor of any other party
upon any of Buyer's properties or assets; or (iii) result in the cancellation or
termination of, or the acceleration of the performance of any obligations or of
any indebtedness under any contract, agreement, commitment, indenture, mortgage,
note, bond, license or other instrument or obligation to which Buyer is now a
party or by which Buyer or its properties or assets may be bound or affected,
except as reflected in the Registration Statement or contemplated by this
Agreement.
C. Authority of Buyer. Buyer has full power and authority to
enter into this Agreement and to perform each and every obligation hereunder.
D. Accuracy of Representations. To the best of Buyer's
knowledge and belief, no representation or warranty in this Article VI, the
Registration Statement or elsewhere in this Agreement, or in any certificate or
document furnished or to be furnished by Buyer pursuant hereto, contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained herein or therein not misleading.
ARTICLE VII
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SURVIVAL OF REPRESENTATIONS
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Survival of Representations and Warranties. All the representations,
warranties, covenants and agreements made by Buyer, Eagle, JEH Eagle and Seller
in this Agreement (including statements contained in any exhibit, certificate or
other instrument delivered by or on behalf of any party hereto or in connection
with the transactions contemplated hereby) shall survive for a period of two
years following the consummation of the Agreement. No performance or execution
of this Agreement in whole or in part by any party hereto, no course of dealing
between or among the parties hereto or any delay or failure on the part of any
party in exercising any rights hereunder or at law or in equity, and no
investigation by any party hereto shall operate as a waiver of any rights of
such party, except to the extent expressly waived in writing by such party.
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ARTICLE VIII
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CLOSING OBLIGATIONS OF THE PARTIES
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8.1 Documents to be Delivered to Buyer by Seller. At the Closing,
Seller shall deliver or cause the following to be delivered to Buyer:
(A) Certificates representing the Eagle Shares and JEH
Eagle Shares;
(B) All books, records, minute books, ledgers, instruments,
agreements, contracts, tax returns and all other documents of whatsoever
description of, relating to or concerning Eagle and JEH Eagle;
(C) A copy of certified resolutions of Seller's Board of
Directors authorizing the execution and delivery of this Agreement; and
(D) A certificate executed by Seller's chief financial officer
affirming the amount of the combined book value of Eagle and JEH Eagle at the
Closing Date in accordance with Section 4.3 hereof.
8.2 Documents to be Delivered to Seller by Buyer.
(A) Certificates representing the Buyer's Shares;
(B) A copy of certified resolutions of Buyer's Board of
Directors authorizing the execution and delivery of this Agreement; and
(C) Documents, satisfactory to the Seller, confirming the
Dividend identified in Section 4.4.
ARTICLE IX
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POST CLOSING OBLIGATIONS
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9.1 Seller agrees to indemnify Eagle for any payments that Eagle is
obligated to make in connection with the properties identified on Schedule I in
excess of Eagle's lease obligations to Seller or any of its subsidiaries, all as
set forth in the Registration Statement.
9.2 Seller will fulfill its obligations, if any, as set forth in
Section 4.3.
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ARTICLE X
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MISCELLANEOUS
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10.1 Entire Agreement - Amendments. This Agreement and any agreements
or instruments executed pursuant hereto or concurrently herewith contain the
entire agreement between the parties hereto with respect to the transactions
contemplated by this Agreement and supersede all prior agreements, writings,
negotiations and understandings. This Agreement contains all of the covenants,
representations, warranties and agreements between the parties with respect to
the subject matter of this Agreement, and each party to this Agreement
acknowledges that no representations, warranties, covenants, inducements,
promises or agreements, oral or otherwise, have been made by any party, or
anyone acting on behalf of any party, which are not embodied herein, and no
other or prior agreement, statement, representation, warranty or covenant not
contained in this Agreement shall be binding or valid.
10.2 Headings. The headings or captions in this Agreement are for
convenience and reference only and do not form a part hereof and do not in any
way modify, interpret or construe the intent of the parties or affect any to the
provisions of this Agreement.
10.3 Binding on Successors. This Agreement shall inure to the benefit
of and shall be binding upon the parties hereto and their respective legal
representatives, successors and assigns.
10.4 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and the counterparts shall together
constitute one and the same agreement, binding each of the parties hereto,
notwithstanding that all of the parties are not signatory to the original or the
same counterpart; however, no party shall be bound by this Agreement until and
unless all parties have executed this Agreement.
10.5 Waiver. Any provision of this Agreement which may be waived by a
corporate party hereto may be waived (but only in writing) by any duly
authorized officer thereof. No waiver shall be deemed a continual waiver or
waivers with respect to any subsequent breach or default, whether of a similar
or different nature, unless expressly so stated in writing.
10.6 Governing Law and Venue. The validity, construction and
interpretation of this Agreement shall be governed by the laws of the State of
New York and the proper venue and jurisdiction shall be the Supreme Court of the
State of New York, New York County or the United States District Courts located
in the Southern District of New York or the Middle District of Florida, Tampa
Division.
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10.7 Further Acts. At any time and from time to time, on and after the
Closing Date, any party shall, at the request of any other party, perform or
cause to be performed and execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered all such further acts, deeds, assignments
and documents as may be necessary or desirable to more fully consummate the
transactions contemplated by this Agreement.
10.8 Notices. All notices and other communications required or
permitted under the terms of this Agreement shall be in writing and shall be
deemed given (1) upon hand delivery, or (2) ten days after deposit of the same
by U.S. certified mail, return receipt requested, first class postage and
certification fees prepaid and correctly addressed to the other party at the
addresses set forth in the first Section hereof.
10.9 Waiver of Jury Trial. Each of the parties hereto hereby knowingly,
voluntarily, and intentionally waives any rights it may have to a trial by jury
in respect of any litigation based hereon or arising out of, under or in
connection with this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the date first above written.
SELLER:
TDA INDUSTRIES, INC.
By:
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BUYER:
EAGLE SUPPLY GROUP, INC.
By:
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SCHEDULE I
(to the Purchase Agreement by and between
TDA Industries, Inc. and Eagle Supply Group, Inc.)
1. Property located at 3380 S.W. 11th Avenue, Fort Lauderdale,
Florida 33334.
2. Property located at 239 Snow Drive, Birmingham, Alabama 35209.