AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER is made and entered into as of December 1,
2000, by and among ENVIROKARE TECH, INC., a Nevada corporation ("Envirokare"),
Electroship Acquisition Corp., a New York corporation which is a wholly-owned
subsidiary of Envirokare ("Merger Sub"), ELECTROSHIP (N.Y.) INC., a New York
corporation ("Electroship"), ELECTROSHIP PARTNERS, a New York general
partnership and the sole stockholder of Electroship ("EP") and John Gremmo ("Mr.
Gremmo"), John A. Notarianni ("Mr. Notarianni"), Leo J. Mangan ("Mr. Mangan"),
Raymond Anthony Joao ("Mr. Joao") and Richard Reichler ("Mr. Reichler" and
collectively with Mr. Gremmo, Mr. Notarianni, Mr. Mangan and Mr. Joao, the
"Principals"). The Principals are the sole partners of EP.
RECITALS
WHEREAS, the respective Boards of Directors of Envirokare, Merger Sub and
Electroship each have determined that it is in the best interests of their
respective stockholders that Electroship be merged with and into Merger Sub,
and, to that end, have approved the merger of Electroship with and into Merger
Sub (the "Merger") pursuant and subject to the terms and conditions of this
Agreement and Plan of Merger; and
WHEREAS, Envirokare, Merger Sub, Electroship, EP and the Principals desire
to make certain representations, warranties and agreements in connection with,
and establish certain conditions precedent to, the Merger.
NOW THEREFORE, in consideration of the mutual agreements, promises and
covenants set forth herein and the recitals set forth above, and other good and
valuable consideration, the receipt and adequacy of which are acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Defined Terms. As used herein the following terms shall have the
following meanings:
Additional Agreements: The Patent Transfer and License Agreement, the
Assignment of Patent Application, the Assignment of Domain Name, the
Confirmatory Assignment of Domain Name, the EP Assignment of Domain Name
Agreement and those other agreements listed in this Agreement and attached
hereto as exhibits and incorporated herein by reference.
Agreement: This Agreement and Plan of Merger, including the preamble,
recitals and exhibits hereto, all of which are hereby incorporated herein by
reference and made a part hereof.
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Assignment of Domain Name: The Assignment of Domain Name dated September
15, 2000 by and between John Gremmo as assignor and EP as assignee in the form
attached hereto as Exhibit A.
Assignment of Patent Application: The Assignment of Patent Application
dated September 14, 2000 by and among Mr. Joao, Mr. Mangan, Mr. Notarianni as
assignors and EP as assignee in the form attached hereto as Exhibit B.
Certificate of Merger: The document to be prepared by the parties hereto,
in substantially the form attached hereto as Exhibit 2.2, in compliance in all
respects with the requirements of the NYBCL and the provisions of this Agreement
and which shall be filed with the Secretary of State of the State of New York.
Certificates: The certificates representing Merger Shares to be surrendered
pursuant to Section 5.3 in exchange for the Merger Consideration.
Closing: A meeting for the purpose of concluding the Transactions to be
held at the place and on the date fixed in accordance with Section 2.3.
Code: The Internal Revenue Code of 1986, as amended.
Confirmatory Assignment of Domain Name: The Confirmatory Assignment of
Domain Name dated September 15, 2000 by and between Handtrade.com, Inc. a New
York corporation as assignor and Mr. Gremmo as assignee in the form attached
hereto as Exhibit C.
Domain Name: The name Electroship.com.
Effective Time: The date and time at which the Certificate of Merger has
been duly filed with the Secretary of State of the State of New York or such
other time as is agreed upon by the parties and specified in the Certificate of
Merger.
Electroship Common Stock: The shares of common stock, par value $.0001 per
share of Electroship.
Envirokare Common Stock: The common stock, par value $.001 per share of
Envirokare.
EP Assignment of Domain Name Agreement: The Assignment of Domain Name dated
October 19, 2000 between EP as assignor and Electroship as assignee in the Form
attached hereto as Exhibit E.
Governmental Authority: The Federal Government, any state, county,
municipal, local or foreign government and any governmental agency, bureau,
commission, authority or body.
Judgment: Any judgment, writ, injunction, order or decree of or by any
court, judge, justice or magistrate, including any bankruptcy court or judge,
having appropriate jurisdiction, and any adjudicative order of or by a
Governmental Authority.
Law: The common law and any statute, ordinance, code or other law, rule,
regulation, order, requirement or procedure enacted, adopted, promulgated,
applied or followed by any Governmental Authority or court.
Lien: Any mortgage, lien or encumbrance of any kind whatsoever, which (i)
creates or confers or purports to create or confer an interest in property to
secure payment or performance
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of a liability, obligation or claim, or which retains or reserves or purports to
retain or reserve such an interest for such purpose; (ii) grants to any Person
the right to purchase or otherwise acquire, or obligates any Person to sell or
otherwise dispose of, or otherwise results or may result in any Person
acquiring, any property or interest in property; (iii) restricts the transfer
of, or the exercise of any rights in or the enjoyment of any benefits arising by
reason of ownership of, any property; or (iv) otherwise constitutes an interest
in, or claim against, property, whether arising pursuant to any Law, Judgment or
any contract to which either party, as the case may be, is a party.
Material Adverse Effect: With respect to any Person, a material adverse
effect on (i) the business, operations, affairs, financial condition, assets,
properties or prospects of Envirokare, Merger Sub or Electroship, as the case
may be, (ii) the Patent, (iii) the ability of Envirokare, Merger Sub or
Envirokare to perform its obligations under this Agreement or (iv) the validity
or enforceability of this Agreement or any of the Additional Agreements.
Merger: The merger of Electroship into and with Merger Sub at the Effective
Time, as set forth in Section 2.1.
Merger Consideration: The 2,500,000 shares of Envirokare Common Stock to be
paid to the holder(s) of Merger Shares upon the effectiveness of the Merger,
pursuant to Section 5.1.
Merger Shares: The 2,500,000 shares of Electroship Common Stock, issued and
outstanding immediately prior to the Effective Time.
NYBCL: The Business Corporation Law of the State of New York.
Patent Transfer and License Agreement: The Assignment of Patent Application
and Defined Field of Use License Agreement dated September 20, 2000 by and
between EP as assignor and Electroship as assignee in the form attached hereto
as Exhibit D.
Patent Application: United States provisional Patent Application Serial No.
60/208,833.
Patent Rights: Shall mean (i) the full and exclusive right to the
inventions disclosed in the Patent Application, (ii) the entire right, title and
interest in and to any and all United States Patent Applications and Foreign
Patent Applications claiming priority to the Patent Application in the United
States and elsewhere and (iii) the entire right, title and interest in and to
any and all United States Patents and Foreign Patents which may be granted or
issued in the United States and elsewhere from the Patent Application or any
United States Patent Applications or Foreign Patent Applications which claim
priority thereto.
Person: Any natural person, corporation, limited liability company, general
or limited partnership, joint venture, trust, association, unincorporated entity
of any kind or Governmental Authority.
Proprietary Rights: Shall have the meaning set forth in Section 6.14.
Registrable Stock: Shall mean any of the 2,500,000 shares of Envirokare
Common Stock which constitute the Merger Consideration owned by EP or any of the
Principals now or in the future. As to any particular shares of Registrable
Stock, such shares shall cease to be Registrable Stock when (i) a registration
statement with respect to the sale of such securities
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shall have become effective under the Securities Act and such securities shall
have been disposed of in accordance with the plan of distribution set forth in
such registration statement, (ii) such securities shall have been distributed in
accordance with Rule 144 (or any successor provision) under the Securities Act
or (iii) such securities shall have been otherwise transferred, new certificates
therefor not bearing a legend restricting further transfer shall have been
delivered in exchange therefor by Envirokare and the subsequent disposition of
such shares shall not require registration or qualification under the Securities
Act.
Registration Expenses: Shall mean all expenses incident to Envirokare's
performance of or compliance with Section 8.7 hereof, including, without
limitation, (i) all SEC registration and blue sky qualification fees
attributable to Registrable Stock being registered, (ii) all fees and
disbursements of counsel to the holders of Registrable Stock being registered,
and (iii) any fees and commissions of underwriters relating to Registrable Stock
being registered.
Registration Notice: Shall have the meaning set further in Section 8.7.
Representatives: Officers, directors, employees, legal counsel, financial
advisors, accountants or other authorized representatives of any of the parties
hereto.
SEC: Shall mean the Securities and Exchange Commission.
Securities Act: Shall mean the Securities Act of 1933, as amended and the
rules and regulations promulgated thereunder.
Surviving Company: Shall have the meaning set forth in Section 2.1.
Tax Returns: All returns, declarations, reports, information returns and
statements with respect to Taxes of whatsoever kind.
Taxes: All federal, state, local, foreign and other taxes, including
interest, penalties and additions to tax with respect thereto.
Transactions: The transactions contemplated by this Agreement, including
the Merger and those contemplated by the Additional Agreements.
1.2 Additional Terms. Terms not set forth in Section 1.1, but otherwise
defined in the body of this Agreement, shall have the specific meanings
attributed to them in the text. Terms in the singular shall have the same
meanings when used in the plural and vice versa.
ARTICLE 2
TERMS OF THE MERGER
2.1 The Merger. Upon the terms and subject to the conditions of this
Agreement, at the Effective Time, Merger Sub and Electroship shall consummate
the Merger in which (a) Electroship shall be merged into and with Merger Sub in
accordance with the NYBCL, (b) the separate existence of Electroship shall
thereupon cease, and (c) Merger Sub shall continue as survivor to the Merger
(the "Surviving Company") and, as the Surviving Company, shall continue its
existence under the NYBCL as a wholly-owned subsidiary of Envirokare, retaining
its properties, rights, privileges, immunities, powers and franchises,
unaffected by the Merger,
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and shall assume all the rights and obligations of Electroship. The Merger shall
have the effects set forth herein and the effects set forth in the applicable
provisions of the NYBCL.
2.2 Effective Time. Subject to the terms and conditions of the Agreement,
the parties hereto shall prepare and execute a Certificate of Merger. The
Certificate of Merger shall be filed on the date of Closing with the Secretary
of State of the State of New York in the manner provided in the NYBCL and the
Merger shall be effective at the Effective Time.
2.3 Closing. The Closing of the Merger shall occur at the offices of
Anderson Kill & Olick, P.C., 1251 Avenue of the Americas, New York, New York,
commencing at 10:00 A.M., local time, on the first business day following the
date on which the last of the conditions set forth in Article 9 hereof shall
have been fulfilled or waived, or at such other place, time and date as
Envirokare and Electroship may agree.
ARTICLE 3
CERTIFICATE OF INCORPORATION
AND BY-LAWS OF THE SURVIVING COMPANY AND
CERTIFICATE OF INCORPORATION AND BY-LAWS OF ENVIROKARE
3.1 Certificate of Incorporation of the Surviving Company. At the Effective
Time, without any further action on the part of the Surviving Company and in
accordance with the NYBCL, the Certificate of Incorporation of the Surviving
Company shall be the Certificate of Incorporation of Merger Sub.
3.2 By-Laws of the Surviving Company. At the Effective Time, without any
further action on the part of the Surviving Company, and in accordance with the
NYBCL, the By-Laws of the Surviving Company shall be the By-Laws of Merger Sub.
ARTICLE 4
DIRECTORS AND OFFICERS
OF THE SURVIVING COMPANY AND
DIRECTORS AND OFFICERS OF ENVIROKARE
4.1 Directors of the Surviving Company. From and after the Effective Time,
the persons who were the directors of Merger Sub immediately prior to the
Effective Time shall be the directors of the Surviving Company until their
successors have been duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the Surviving Company's
Certificate of Incorporation and By-Laws.
4.2 Officers of the Surviving Company. From and after the Effective Time,
the persons who were the officers of Merger Sub immediately prior to the
Effective Time shall be the officers of the Surviving Company until their
successors have been duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the Surviving Company's
Certificate of Incorporation and By-Laws.
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ARTICLE 5
MERGER CONSIDERATION; CONVERSION OR
CANCELLATION OF MERGER SHARES IN THE MERGER
5.1 Merger Consideration. Subject to the provisions of this Agreement, at
the Effective Time, the Merger Shares, then held by former Electroship
shareholder(s) by virtue of the Merger and without any action on the part of the
holder(s) thereof, shall be converted into the right to receive the Merger
Consideration upon surrender of the Certificate(s) representing such Merger
Shares, in accordance with Section 5.3.
5.2 Cancellation of Merger Shares.
(a) All Merger Shares to be converted into Envirokare Common Stock
pursuant to this Article 5 shall, by virtue of the Merger and without any
action on the part of the holders thereof, cease to be outstanding, be
cancelled and cease to exist, and the holder(s) of the Certificate(s) shall
thereafter cease to have any rights with respect to such Merger Shares,
except the right to receive for the Merger Shares the Merger Consideration,
upon the surrender of such Certificate in accordance with Section 5.3.
(b) Each share of common stock of Merger Sub issued and outstanding
immediately prior to the Effective Time shall remain unchanged.
5.3 Payment for Merger Shares. Envirokare shall act as its own exchange
agent in effecting the exchange of Certificates for the Merger Consideration
pursuant to Section 5.1. Upon surrender of all duly executed Certificate(s) to
Envirokare, the former Electroship shareholder(s) shall be entitled to receive
for the Merger Shares represented by such surrendered Certificate(s), the Merger
Consideration and the Certificate(s) so surrendered shall forthwith be canceled.
Until so surrendered, such Certificate(s) shall represent solely the right to
receive the Merger Consideration. No interest shall be paid or accrue on the
Merger Consideration payable upon surrender of the Certificate(s).
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
OF ELECTROSHIP, EP AND THE PRINCIPALS
Electroship, EP and each of the Principals hereby jointly and severally
represents, warrants and covenants as follows:
6.1 Capitalization. The entire authorized capital of Electroship consists
of 3,500,000 shares of Electroship Common Stock. As of the date hereof,
2,500,000 shares of Electroship Common Stock are, and as of the Effective Time,
2,500,000 shares of Electroship Common Stock will be, issued and outstanding and
no shares of Electroship Common Stock are or will, at the Effective Time, be
held in treasury. Such 2,500,000 shares of Electroship Common Stock constitute
all of the issued and outstanding capital stock of Electroship, all of which
shares have been duly authorized, validly issued and are fully paid and
non-assessable. All of such
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2,500,000 shares of Electroship Common Stock are owned beneficially and of
record by EP, free and clear of any and all Liens, charges, encumbrances, claims
and options of any nature. There are no stockholder agreements, voting trusts or
other agreements or understandings relating to the voting of any shares of
Electroship Common Stock. There are no outstanding or authorized options,
warrants, agreements, subscriptions, calls, demands or rights of any character
relating to Electroship Common Stock or any other security of Electroship,
whether or not issued, including without limitation, securities convertible into
or evidencing the right to purchase any Electroship Common Stock or other
securities of Electroship.
6.2 Organization, Qualification and Power.
(a) Electroship is a corporation duly incorporated, validly existing
and in good standing under the Laws of the State of New York and is duly
qualified or licensed to conduct its business in each jurisdiction in which
it is required to be so qualified or licensed. Electroship has the
requisite corporate power to own or lease its properties and assets to
carry on its business as now being conducted. Electroship has no
Subsidiaries and, owns no interest in any corporation, partnership,
proprietorship or any other business entity. Electroship has heretofore
made available to Envirokare complete and correct copies of its Certificate
of Incorporation, and By-Laws.
(b) EP is a general partnership, duly formed, validly existing and in
good standing under the Laws of the State of New York and is duly qualified
or licensed to conduct its business in each jurisdiction in which it is
required to be so qualified or licensed. EP has the requisite partnership
power to own or lease its properties and assets and to carry on its
business as now being conducted. The Principals are the sole partners of EP
and all of the outstanding partnership interests in EP are owned by the
Principals, free and clear of all Liens, charges, encumbrances, claims and
options of any nature.
6.3 Authorization of Agreement, Additional Agreements and Merger.
(a) Electroship has the requisite corporate power and authority to
approve, authorize, execute and deliver this Agreement and any Additional
Agreements to which it is a party and to consummate the Transactions. This
Agreement and any Additional Agreements to which Electroship is a party,
and the consummation by Electroship of the Transactions have been duly and
validly authorized by the Board of Directors of Electroship and no other
corporate proceedings on the part of Electroship are necessary to authorize
this Agreement or any Additional Agreements to which Electroship is a party
or to consummate the Transactions other than the filing of the Certificate
of Merger in accordance with the NYBCL.
(b) EP has the requisite partnership power and authority to approve,
authorize, execute and deliver this Agreement and any Additional Agreements
to which EP is a party and to consummate the Transactions. This Agreement
and any Additional Agreements to which EP is a party, and the consummation
by EP of the Transactions have been duly and validly authorized by all of
the partners of EP and no other partnership proceedings on the part of EP
are necessary to authorize this Agreement or
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any Additional Agreements to which EP is a party or to consummate the
Transactions. The current managing partner of EP is Mr. Notarianni.
(c) Each of the Principals has the requisite individual power and
authority to approve, authorize, execute and deliver this Agreement and any
Additional Agreements to which any such Principal is a party and to
consummate the Transactions.
6.4 Enforceable Agreements. This Agreement and each of the Additional
Agreements to which Electroship is a party have been duly and validly executed
and delivered by Electroship and constitute valid and binding obligations of
Electroship, enforceable against Electroship according to their respective
terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar Laws affecting the enforceability of contractual
obligations and creditor's rights generally and by the application of equitable
principles by courts of competent jurisdiction, sitting at law or in equity.
This Agreement and each of the Additional Agreements to which EP is a party have
been duly and validly executed and delivered by EP and constitute the valid and
binding obligation of EP, enforceable against EP according to their respective
terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar Laws affecting the enforceability of contractual
obligations and creditor's rights generally and by the application of equitable
principles by courts of competent jurisdiction sitting at law or in equity. This
Agreement and each of the Additional Agreements to which any of the Principals
is a party have been duly and validly executed and delivered by such Principal
and constitute the valid and binding obligation of such Principal, enforceable
against such Principal according to their respective terms, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar Laws affecting the enforceability of contractual obligations and
creditor's rights generally and by the application of equitable principles by
courts of competent jurisdiction sitting at law or in equity.
6.5 No Conflicts, Violations, Breaches or Defaults. The execution and
delivery of this Agreement by each of Electroship, EP and each of the Principals
and the performance of their respective obligations hereunder, and the
execution, delivery and performance of any Additional Agreements to which
Electroship, EP or any of the Principals is a party and the consummation of the
Transactions, do not (a) conflict with or result in any breach of any provision
of (i) the Certificate of Incorporation or By-Laws of Electroship or (ii) the
partnership agreement or other organizational document of EP; (b) require any
consent, approval, authorization or permit of, or filing with, or notification
to, any Governmental Authority, except the filing of the Certificate of Merger
pursuant to the NYBCL; (c) conflict with or contravene any provisions or result
in a breach or violation of, or constitute a default under, or result in the
loss, revocation, impairment, suspension or forfeiture of any rights of
Electroship, EP or any of the Principals under any contract or other instrument
or obligations to which Electroship, EP or any of the Principals is subject or
bound; or (d) result in the creation of any Lien on the Merger Shares, the
Patent Application, any of the Patent Rights, the Domain Name or any of the
other assets of Electroship.
6.6 Litigation. (i) There are no actions, suits, claims, governmental
investigations, arbitrations or other proceedings pending, or, to the knowledge
of Electroship, EP or any of the Principals threatened, against Electroship, EP
or any of the Principals which, if adversely
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determined, individually or in the aggregate, might result in any Material
Adverse Effect or impair the ability of Electroship, EP or any of the Principals
to perform its respective obligations hereunder and (ii) there are no Judgments
to which Electroship, EP or any of the Principals is subject, or to which any of
the assets of Electroship (including the Patent Application, the Patent Rights
and the Domain Name) EP or any of the Principals is subject, that might,
individually or in the aggregate, result in a Material Adverse Effect or impair
the ability of Electroship, EP or any of the Principals to perform its
respective obligations hereunder.
6.7 Employees. Electroship does not and has not at any time since its
incorporation had any employees or consultants.
6.8 Compliance with Applicable Laws. At all times since the date of its
incorporation, Electroship has complied with and has conducted its business
activities in compliance with the terms of all applicable Laws, ordinances, and
regulations of Governmental Authorities. Electroship has not received any notice
to the effect that or otherwise been advised that it is not in compliance with
the terms or all applicable laws, ordinances and regulations of Governmental
Authorities.
6.9 No Broker's Fees. Neither Electroship, EP or any of the Principals has
employed any investment bank, broker, finder, consultant or other intermediary,
which would be entitled to any fee or commission in connection with the
Transactions.
6.10 No Tangible Assets; No Contracts and Commitments. Electroship does not
own any real estate, furniture, equipment or other tangible assets except for
the Patent Applications, the Patent Rights and the Domain Name. Electroship is
not a party to any written or oral agreement or commitment of any kind except
for the Patent License, the Patent and Domain Name Transfer Agreement and this
Agreement.
6.11 No Liabilities. Electroship has no liabilities or obligations
(absolute, accrued, contingent or otherwise), except for those described as
Schedule 6.11 hereto.
6.12 Interim Operations of Electroship. Electroship has not engaged in any
business activities or conducted any operations other than in connection with
the Transactions.
6.13 Tax Matters. Electroship has not been required to file Tax Returns
with respect to any period ending at or prior to the Closing.
6.14 Patent and Domain Name Matters. The Patent Transfer and License
Agreement conveyed to Electroship, legal and valid right and title to and sole
and exclusive ownership of and interest in the Patent Application, and the
Patent Rights, in each case free and clear of any and all Liens. The EP
Assignment of Domain Name Agreement conveyed to Electroship, legal and valid
right and title to and sole and exclusive ownership of an interest in the Domain
Name. The Patent Application, the Patent Rights and the Domain Name, along with
the corporate name "Electroship (N.Y.) Inc." and any and all goodwill therein
constitute all of the proprietary rights of Electroship (collectively, the
"Proprietary Rights"). As of the date of this Agreement, Electroship has, and as
of the Effective Time Electroship shall have legal and valid right and title
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to and sole and exclusive ownership of and interest in and to the Proprietary
Rights, in each case, free and clear of any and all Liens. No Person has a right
to receive a royalty or similar payment in respect of any Proprietary Right
pursuant to any contractual or other arrangement. To the knowledge of
Electroship, EP and each of the Principals, Electroship's use of the Proprietary
Rights is not infringing upon or otherwise violating the rights of any Person in
or to such Proprietary Rights. Neither Electroship, EP nor any of the Principals
has received any notice or claim of infringement or any claim challenging or
questioning the validity or effectiveness of the Proprietary Rights and, to the
knowledge of Electroship, EP and the Principals, there is no valid basis for any
such claim. The Proprietary Rights have not been infringed or misappropriated by
any other Person. Electroship has taken all necessary steps and actions to
maintain and protect the Proprietary Rights.
6.15 Investor Representations and Covenants.
(a) EP and each of the Principals acknowledges and understands that
the 2,500,000 shares of Envirokare Common Stock constituting the Merger
Consideration that will be issued to EP in connection with the consummation
of the Merger will not be registered under the Securities Act of 1933, as
amended (the "Securities Act") and that Envirokare is under no obligation
(other than pursuant to the specific terms of Section 8.7 hereof) to
register such shares or to assist EP or any of the Principals in any manner
in any proposed future sale of such shares. EP and each of the Principals
represents that the 2,500,000 shares of Envirokare Common Stock
constituting the Merger Consideration that will be issued to EP in
connection with the consummation of the Merger will be acquired by EP for
its own account for investment purposes and not with a view towards resale
or public distribution; provided, however, that EP shall be permitted to
distribute the Merger Consideration to the Principals in accordance with
the terms of EP's partnership agreement. EP and each of the Principals
agrees that neither EP nor any of the Principals will sell, transfer or
assign in any manner any of such shares of Envirokare Common Stock other
than in compliance with the Securities Act and the rules and regulations
promulgated thereunder.
(b) EP and each of the Principals represent and warrant that (i) EP
and each of the Principals have such knowledge and experience in financial
and business matters that they are capable of evaluating the merits and
risks of acquiring the shares of Envirokare Common Stock that constitute
the Merger Consideration, (ii) EP and each of the Principals understand
that they may not, in the future be readily able to liquidate their
investment in such shares of Envirokare Common Stock, (iii) EP and each of
the Principals are able to bear the full economic risk of an entire loss of
their investment in such shares of Envirokare Common Stock and (iv) EP and
each of the Principals have received such financial, business and other
information from Envirokare and has had the opportunity to ask such
questions of representatives of Envirokare and receive answers to those
questions as they deem necessary in order to fully evaluate their decision
to acquire such shares of Envirokare Common Stock.
6.16 No Misstatements or Omissions. No representations or warranties by
Electroship, EP or any of the Principals in this Agreement or any of the
Additional Agreements or in any
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closing document delivered in connection with any of the Transactions contain or
will contain any untrue statement of material fact, or omit or will omit to
state any material fact necessary to make the statements or facts contained
therein not misleading. Electroship, EP and the Principals have disclosed to
Envirokare all material events, conditions and facts affecting the Patent
Application, the Patent Rights, the Domain Name, the transfer of the Patent
Application, the Patent Rights and the Domain Name to Electroship and the
condition (financial or otherwise) of Electroship.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
OF ENVIROKARE AND MERGER SUB
Each of Envirokare and Merger Sub hereby jointly and severally represents
and warrants as follows:
7.1 Authorization for Envirokare Common Stock. The 2,500,000 shares of
Envirokare Common Stock issued pursuant to Article 5 will, when issued, be
validly issued, fully paid and nonassessable, will be issued free and clear of
any and all Liens, and no Person will have any preemptive right of subscription
or purchase in respect thereof.
7.2 Capitalization. The entire authorized capital stock of Envirokare
consists of 200,000,000 shares of Envirokare Common Stock and 10,000,000 shares
of Series A Convertible Preferred Stock, having a par value or $.001 per share
("Series A Preferred"). As of the date hereof, 11,289,478 shares of Envirokare
Common Stock are issued and outstanding and 500,000 shares of Series A Preferred
are issued and outstanding. Such shares constitute all of the issued and
outstanding capital stock of Envirokare, all of which have been duly authorized,
validly issued and are fully paid and non-assessable.
7.3 Corporate Organization, Qualification and Power. Each of Envirokare and
Merger Sub is a corporation duly organized, validly existing and in good
standing under the Laws of its respective jurisdiction of incorporation and is
qualified and in good standing as a foreign corporation in each jurisdiction
where the properties owned, leased or operated, or the business conducted, by it
require such qualification, except where the failure to so qualify or be in such
good standing would not, individually or in the aggregate, have a Material
Adverse Effect. Envirokare is the sole shareholder of Merger Sub. Each of
Envirokare and its Merger Sub has the corporate power to own or lease its
respective properties and to carry on its business as now being conducted,
wherever located.
7.4 Authorization of Agreement and Merger. Each of Envirokare and Merger
Sub has the requisite corporate power and authority to approve, authorize,
execute and deliver this Agreement and to consummate the Transactions. This
Agreement and the consummation by Envirokare and Merger Sub of the Merger and
the other Transactions have been duly and validly authorized by the respective
Boards of Directors of Envirokare and Merger Sub and by Envirokare as the sole
shareholder of Merger Sub. No other corporate proceedings on the part of
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Envirokare and Merger Sub are necessary to authorize this Agreement or to
consummate the Transactions other than the filing of the Certificate of Merger
in accordance with the NYBCL.
7.5 Enforceable Agreement. This Agreement has been duly and validly
executed and delivered by each of Envirokare and Merger Sub and constitutes the
valid and binding obligation of each of Envirokare and Merger Sub, enforceable
against each of Envirokare and Merger Sub according to its terms, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar Laws affecting the enforceability of contractual obligations and
creditor's rights generally and by the application of equitable principles by
courts of competent jurisdiction, sitting at law or in equity.
7.6 No Conflicts, Violations, Breaches or Defaults. The execution and
delivery of this Agreement by Envirokare and Merger Sub and the performance
their respective obligations hereunder, and the consummation of the
Transactions, do not (a) conflict with or result in any breach of any provision
of the Certificate of Incorporation or By-Laws of Envirokare or Merger Sub; (b)
require any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Authority, except the filing of the
Certificate of Merger pursuant to the NYBCL (c) except as would not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect, conflict with or contravene any provisions or result in a breach
or violation of, or constitute a default under, or result in (or create in any
party the right to cause) the acceleration of any performance or any increase in
any payment required by or the termination, suspension, modification or
impairment of, or result in the loss, revocation, impairment, suspension or
forfeiture of any rights of Envirokare or its Merger Sub under, (i) any Judgment
or Law to which Envirokare or its Subsidiaries are subject or bound, or (ii) any
mortgage, bond, indenture, agreement, contract, license or other instrument or
obligations to which Envirokare or its Merger Sub is subject or bound; (d)
result in the creation of any Lien on any of the assets of Envirokare or Merger
Sub; or (e) result in the creation of any Lien on the shares of Envirokare
Common Stock that constitute the Merger Consideration.
7.7 Litigation. (i) There are no actions, suits, claims, governmental
investigations, arbitrations or other proceedings pending, or, to Envirokare's
knowledge, threatened, against Envirokare or Merger Sub. which, if adversely
determined, individually or in the aggregate, might result in any Material
Adverse Effect on Envirokare or Merger Sub or impair the ability of Envirokare
or Merger Sub to perform its respective obligations hereunder and (ii) there are
no Judgments to which Envirokare or Merger Sub is subject, or to which any of
Envirokare's or Merger Sub's property or assets is subject, that might,
individually or in the aggregate, result in a Material Adverse Effect or impair
the ability of Envirokare or Merger Sub to perform its obligations hereunder.
7.8 Compliance with Applicable Laws. The respective businesses of
Envirokare and Merger Sub are not being conducted in violation of any Law,
ordinance or regulation of any Governmental Authorities, except for possible
violations which, individually or in the aggregate, would not have a Material
Adverse Effect.
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7.9 Broker's Fees. Neither Envirokare nor Merger Sub has employed any
investment bank, broker, finder, consultant or other intermediary, which would
be entitled to any fee or commission in connection with the Transactions.
7.10 Interim Operations of Merger Sub. Merger Sub was formed solely for the
purpose of engaging in the Transactions and has not engaged in any business
activities or conducted any operations other than in connection with the
Transactions.
7.11 SEC Reports. As of their respective dates, neither Envirokare's Annual
Report on Form 10-KSB for the year ended December 31, 1999 nor any of
Envirokare's Quarterly Reports on Form 10-QSB for the fiscal quarters ended
March 31, 2000, June 30, 2000 and September 30, 2000, respectively, submitted to
the SEC contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which the were made, not
misleading.
7.12 No Misstatements or Omissions. No representations or warranties by
Envirokare or Merger Sub in this Agreement or in any closing document delivered
in connection with any of the transactions contain or will contain any untrue
statement of material fact, or omit or will omit to state any material fact
necessary to make the statements or facts contained therein not misleading.
ARTICLE 8
CERTAIN ADDITIONAL COVENANTS
8.1 Conduct of Business of Merger Sub and Electroship. During the period of
time from the date of this Agreement to the Effective Time, neither Merger Sub
nor Electroship shall engage in any activities of any nature except as provided
in or contemplated by this Agreement.
8.2 Shareholder Approval. Prior to the execution of this Agreement,
Electroship has obtained the irrevocable written consent of the sole holder of
outstanding Electroship Common Stock to the approval and adoption of this
Agreement and the Transactions. A copy of such written consent is attached here
to as Exhibit F. Prior to the execution of this Agreement, Merger Sub has
obtained the irrevocable written consent of the sole holder of its outstanding
common stock to the approval and adoption of this Agreement and the
Transactions. A copy of such written consent is attached hereto as Exhibit G.
8.3 All Reasonable Efforts. Subject to the terms and conditions herein,
each of the parties hereto shall use all reasonable efforts to take, or cause to
be taken, all action and to do, or cause to be done, whatever is necessary,
proper or advisable under applicable Laws to consummate and make effective the
Transactions.
8.4 Publicity. The parties will consult with each other and will mutually
agree upon any press releases or public announcement pertaining to this
Agreement, the Merger and the other Transactions and shall not issue any such
press releases or make any such public announcements prior to such consultation
and agreement, except as may be required by
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applicable Law in which case the party proposing to issue such press release or
make such public announcement shall use all reasonable efforts to consult in
good faith with the other party before any such issuance or announcement.
8.5 Reorganization. The Merger is intended to be a reorganization described
in Section 368(a) of the Code. Neither Electroship, EP, any of the Principals
nor Envirokare has taken or will take any action that would jeopardize the
qualification of the Merger as a reorganization within the meaning of Section
368(a) of the Code.
8.6 Reimbursement of Certain Rule 144 Legal Opinion Expenses. Envirokare
shall reimburse EP and/or the Principals for legal fees not to exceed $5,000 per
each Principal incurred by any Principal in connection with such Principal
obtaining a legal opinion needed to facilitate the transfer of any or all of the
shares of Envirokare Common Stock acquired by such parties as a result of the
Merger.
8.7 Piggyback Registration Rights. The parties agree that if Envirokare at
any time after the Closing proposes to register any shares of Envirokare Common
Stock under the Securities Act on a form (other than pursuant to Forms S-8 or
S-4) and in a manner that would permit registration of shares of Registrable
Stock, whether or not for sale for its own account, Envirokare will, as soon as
practicable (but in no event less than twenty days prior to the proposed date of
filing the registration statement relating to such registration), give prompt
written notice to EP and each of the Principals of its intention to do so and of
such party's rights under this Section 8.7. Upon the written request of any such
party made within fifteen days after the receipt of any such notice (which
request shall specify the number of shares of Registrable Stock intended to be
disposed of by such holder and the intended method or methods of disposition
thereof) (the "Registration Notice"), Envirokare will use reasonable efforts to
effect the registration under the Securities Act of all Registrable Stock which
Envirokare has been so requested to register by EP and/or the Principals, as
applicable, to the extent requisite to permit the disposition (in accordance
with the intended method or methods thereof as aforesaid) of the shares of
Registrable Stock so to be registered; provided, that, if at any time after
giving written notice of its intention to register any shares of Envirokare
Common Stock and prior to the effective date of the registration statement filed
in connection with such registration, Envirokare shall determine for any reason
not to register or to delay registration of such securities, Envirokare may, at
its election, give written notice of such determination to EP and each of the
Principals and, thereupon, (i) in the case of a determination not to register,
shall be relieved of its obligation to register any shares of Registrable Stock
in connection with such registration and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any shares of
Registrable Stock for the same period as the delay in registering such other
securities.
(a) If (i) a registration pursuant to this Section 8.7 involves an
underwritten offering of the shares of Envirokare Common Stock being
registered, whether or not for sale for the account of Envirokare, to be
distributed by or through one or more underwriters and (ii) the managing
underwriter of such underwritten offering shall inform Envirokare of its
belief that the number of securities requested to be included in such
registration exceeds the number which can be sold in (or during the time
of) such offering within a price range acceptable to Envirokare, then
Envirokare will reduce the number of
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shares of Registrable Stock to be included in the registration to such
number of shares which Envirokare is so advised can be sold in (or during
the time of) such offering within such price range.
(b) In connection with any registration of Registrable Stock pursuant
to this Section 8.7, EP and each of the Principals agrees that it shall
promptly furnish to Envirokare such information regarding any party
requesting such registration, the Registrable Stock held by such party and
the intended plan of distribution of such shares Registrable Stock as
Envirokare may from time to time request in connection with such
registration. EP and each of the Principals shall be responsible for paying
all of such party's own Registration Expenses incurred in connection with
each registration of shares of Registrable Stock pursuant to this Section
8.7. EP and each of the Principals severally and not jointly agrees to
indemnify and hold harmless, to the full extent permitted by law, and to
reimburse Envirokare, each director, officer, employee and agent of
Envirokare and each underwriter from and against any and all losses,
claims, damages, and liabilities and all fees costs and expenses (including
without limitation, reasonable legal expenses) of any kind or nature
related to, arising out of, resulting from or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement under which shares of Registrable Stock held or
formerly held by such party were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto or any omission, or alleged
omission from such registration statement, preliminary prospectus, final
prospectus or summary prospectus, or any amendment or supplement thereto
required to be stated therein or necessary to make the statements therein
not misleading, if (but only if) such untrue statement or alleged statement
or omission or alleged omission was made in reliance upon and in conformity
with written information furnished to Envirokare by or on behalf of such
party specifically for inclusion therein.
ARTICLE 9
CONDITIONS
9.1 Conditions to Each Party's Obligation to Close. The obligations of each
of the parties to consummate the Transactions are subject to satisfaction, or,
to the extent permitted by Law, mutual waiver, on or prior to the Effective Time
of each of the following conditions:
(a) Injunction. There shall not be in effect any Law or any Judgment
directing that the Transactions not be consummated; provided, however, that
prior to invoking this condition each party shall use all reasonable
efforts to have any such Judgment vacated; and there shall have been no Law
enacted or promulgated which would make consummation of the Transactions
illegal.
(b) Governmental Filings and Consents. Any governmental consents,
orders, and approvals legally required for the consummation of the Merger
and the Transactions shall have been obtained and be in effect at the
Effective Time.
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9.2 Additional Conditions to the Obligations of Envirokare and Merger Sub
to Close. The obligations of Envirokare and Merger Sub to consummate the
Transactions are subject to satisfaction, or, to the extent permitted by Law,
waiver on or prior to the Closing of each of the following conditions:
(a) Performance. Electroship, EP and each of the Principals shall have
complied with, and satisfied, in all material respects, all the covenants,
agreements and obligations of such party contained herein, and performed in
all material respects all acts required of such party by this Agreement.
(b) Representations and Warranties. All the representations and
warranties made herein by Electroship, EP and each of the Principals shall
have been, and shall be, true and correct in all material respects when
made and as of the Closing (except for changes permitted by this Agreement,
or except to the extent they relate to a particular date, in which case
such representations and warranties shall be true and correct in all
material respects as of such date).
(c) Deliveries. Envirokare shall have received at the Closing:
(i) a certificate dated the date of the Closing and executed by
the President or a Vice President of Electroship, a certificate dated
the date of the Closing and executed by all the general partners of EP
and a certificate dated the date of the Closing executed by each of
the Principals, in each case, certifying to the fulfillment of the
condition specified in Sections 9.2(a) and (b);
(ii) an incumbency certificate of Electroship stating the names
of all current officers thereof, a certified or verified copy of
Electroship's Certificate of Incorporation, its By-Laws and
certificates of good standing for Electroship.
(iii) a verified copy of EP's Partnership Agreement and an
incumbency certificate for EP stating the names of all current
partners and the managing partner thereof; and
(iv) evidence of the recordation of the Patent Transfer and
License Agreement with the United States Patent Office and evidence of
proper notification to Network Solutions Inc. of the EP Assignment of
Domain Name, each in form and substance satisfactory to Envirokare.
9.3 Additional Conditions to Electroship's Obligation to Close. The
obligation of Electroship to consummate the Transactions is subject to
satisfaction, or, to the extent permitted by Law, waiver, on or prior to the
Closing of each of the following conditions:
(a) Performance. Envirokare and Merger Sub shall have complied with,
and satisfied, in all material respects, all the covenants, agreements and
obligations of Envirokare and Merger Sub contained herein, and performed
all acts required of Envirokare and Merger Sub by this Agreement.
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(b) Representations and Warranties. All the representations and
warranties made herein by Envirokare and Merger Sub shall have been, and
shall be, true and correct, in all material respects when made and as of
the Closing (except for changes permitted by this Agreement, or except to
the extent they relate to a particular date, in which case such
representations and warranties shall be true and correct in all material
respects as of such date).
(c) Deliveries. Electroship shall have received at the Closing:
(i) a certificate dated the Closing and executed by the President
or a Vice President of Envirokare certifying to the fulfillment of the
conditions specified in Sections 9.3(a) and (b); and
(ii) a certified or verified copy of Envirokare's and Merger
Sub's Certificates of Incorporation, as currently amended, and
certificates of good standing for Envirokare and Merger Sub, as
Electroship may reasonably request.
ARTICLE 10
TERMINATION AND REMEDIES
10.1 Termination. This Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time,
(a) by the mutual written consent of Envirokare and Electroship;
(b) by either Envirokare or Electroship, if:
(i) any court of competent jurisdiction in the United States, or
some other Governmental Authority, shall have issued an order, decree
or ruling or taken any other action permanently restraining, enjoining
or otherwise prohibiting the Merger and such order, decree, ruling or
other action shall have become final and nonappealable;
(ii) the Merger shall not have been consummated by December 22,
2000; provided, that the right to terminate this Agreement pursuant to
this Section 10.1(b)(ii) shall not be available to any party whose
failure to fulfill any of its obligations under this Agreement results
in the failure of the Merger to occur on or before such date; or
(iii) any Governmental Authority, the consent or approval of
which is a condition to the obligations of the parties hereto to
consummate the Transactions shall have determined not to grant its
consent or approval and all appeals of such determination shall have
been taken and shall have been unsuccessful.
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(c) by Envirokare, if there has been a misrepresentation or breach of
warranty in any material respect or a failure to perform in any material
respect a covenant on the part of Electroship with respect to its
representations, warranties and covenants set forth in this Agreement.
(d) by Electroship, if there has been a misrepresentation or breach of
warranty in any material respect or a failure to perform in any material
respect a covenant on the part of Envirokare with respect to its
representations, warranties and covenants set forth in this Agreement;
10.2 Effect of Termination. In the event of the termination and abandonment
of this Agreement pursuant to Section 10.1, this Agreement shall become void and
have no effect, without any liability on the part of any party hereto or its
affiliates, directors, officers or stockholders, provided that, notwithstanding
the foregoing, if this Agreement has been terminated the provisions of Sections
8.4, 11.1, 11.2 and 11.3 shall survive all such termination and shall continue
to be of binding effect. Nothing contained in this Section 10.2 shall relieve
any party from liability for any breach of this Agreement.
ARTICLE 11
GENERAL PROVISIONS
11.1 Expenses. Except as otherwise provided herein, all fees, costs and
expenses, including attorney's fees, incurred in connection with this Agreement
or the Transactions shall be paid in full at Closing by the party incurring
such.
11.2 Survival. Except as otherwise stated herein, the representations and
warranties made herein shall not survive beyond the earlier of termination of
this Agreement or two years after the Effective Time. This Section 11.2 shall
not limit any covenant or agreement of the parties hereto which by its terms
contemplates performance after the Effective Time.
11.3 Indemnification.
(a) For a period of two years after the Effective Time, EP and each of
the Principals (collectively, the "Electroship Indemnifying Stockholders")
hereby agree jointly and severally to indemnify and hold harmless
Envirokare, the Surviving Company and their respective directors, officers
and affiliates from and to reimburse Envirokare, the Surviving Company and
their respective directors, officers and affiliates for any and all losses,
liabilities, damages and claims and all fees, costs and expenses (including
without limitation, reasonable legal expenses) of any kind related to,
arising out of, based upon or resulting from (i) the inaccuracy as of the
Closing of any representation or warranty of Electroship, EP or any of the
Principals which is contained in or made pursuant to this Agreement or any
of the Additional Agreements and (ii) any failure by Electroship, EP or any
of the Principals to comply with any covenant or agreement contained in
this Agreement or any of the Additional Agreements.
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(b) For a period of two years after the Effective Time, Envirokare and
the Surviving Company hereby agree jointly and severally to indemnify and
hold harmless the Electroship Indemnifying Stockholders and their
respective affiliates from and to reimburse the Electroship Indemnifying
Stockholders and their respective affiliates for any and all losses,
liabilities, damages and claims and all fees, costs and expenses (including
without limitation, reasonable legal expenses) of any kind related to,
arising out of, based upon or resulting from (i) the inaccuracy as of the
Closing of any representation or warranty of Envirokare or Merger Sub which
is contained in or made pursuant to this Agreement and (ii) any failure by
Envirokare or Merger Sub to comply with any covenant or agreement contained
in this Agreement.
11.4 Further Documents. Each party hereto agrees to execute and deliver to
the other party such other and further agreements, consents, documents, or
instruments of conveyance, assignment, assumption or transfer, and to do such
other things and to take such other actions, supplemental or confirmatory, as
may be required by the other party for the purpose of or in connection with the
consummation or evidencing of the Transactions.
11.5 Modification or Amendment. This Agreement, including any Exhibits or
Schedules hereto, may be amended by an instrument in writing executed and
delivered on behalf of each of the parties hereto, at any time prior to the
Effective Time, subject to the provisions of the NYBCL; provided, however, that
no amendment of this Agreement which by Law requires the further approval of the
stockholders of Merger Sub or Electroship shall be made without the further
approval of such stockholders.
11.6 Waiver. The conditions to each of the parties' obligations to
consummate the Merger are for the sole benefit of such party and may be waived,
at any time prior to the Effective Time, by such party in whole or in part to
the extent permitted by Law. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in writing signed on
behalf of such party. Waiver of any provision of this Agreement or of any breach
hereof shall be a waiver of only said specific provision or breach and shall not
be deemed a waiver of any other provision or any future breach hereof.
11.7 Notices. All notices, documents, or other communications to be given
hereunder shall be in writing and shall be deemed validly given if delivered by
messenger, facsimile transmission (with a confirming copy sent by overnight
courier), or express overnight delivery, or sent by certified mail, return
receipt requested, as follows:
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(a) If to Electroship, EP or any of the Principals to
Electroship Partners
3500 Sunrise Highway
Suite T-209
Great River, New York 11739
Telephone: (631) 592-1370
Telecopier: (631) 226-7523
Attention: Leo Mangan
(b) If to Envirokare or Merger Sub, to
Envirokare Tech, Inc.
2470 Chandler Avenue
Suite 5
Las Vegas, Nevada 89120
Telephone: (702) 262-1999
Telecopier: (702) 262-1909
Attention: Richard Clark
With a copy to:
Anderson Kill & Olick, P.C.
1251 Avenue of the Americas
New York, New York 10020
Telephone: (212) 278-1000
Telecopier: (212) 278-1733
Attention: David Schlecker, Esq.
or such other Persons or addresses as may be designated in writing by the party
to receive such notice. Any notice delivered by messenger shall be deemed
received when such delivery is tendered; notices sent by facsimile transmission
shall be deemed received upon faxed confirmation of receipt; notices mailed in
the manner provided above, shall be deemed received on the day after such are
postmarked; and notices delivered by other methods shall be deemed received when
actually received by the addressee or its authorized agent.
11.8 Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the Laws of the State of New York, without giving
effect to the principles of the conflicts of law thereof.
11.9 Entire Agreement. This Agreement, including the Additional Agreements,
constitutes the entire agreement and understanding of the parties with respect
to the Transactions and supersedes any and all prior agreements and
understandings relating to the subject matter hereof.
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11.10 Construction. The section and article headings contained in this
Agreement are inserted for convenience of reference only and shall not affect
the meaning or interpretation of this Agreement. The preamble hereof, the
recitals hereto, and all exhibits attached hereto are hereby incorporated herein
by reference and made a part hereof.
11.11 Binding Effect. This Agreement shall be binding upon and inure solely
to the benefit of the parties, and their respective successors and assigns, to
the extent allowed hereby. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any other Person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
11.12 Assignment. None of the parties hereto may assign any rights or
delegate any obligations provided for in this Agreement without the prior
written consent of all the other parties.
11.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall be deemed to be an original, but
which together shall constitute one and the same instrument.
11.14 Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, each of which shall remain in full force and
effect.
11.15 Specific Performance. The parties acknowledge that they would be
irreparably damaged and there would be no adequate remedy at law for a breach by
either party of this Agreement, and accordingly, the terms of this Agreement
shall be specifically enforced.
11.16 Severability. Any provision hereof that is found or held to be
invalid or unenforceable shall be ineffective to the extent of such invalidity
or unenforceability, without affecting in any way the remaining provisions
hereof.
11.17 JURISDICTION. EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS TO THE
PERSONAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED
STATES OF AMERICA SITTING IN THE SOUTHERN DISTRICT OF NEW YORK. ANY AND ALL
SERVICE OF PROCESS AND OTHER NOTICE IN ANY ACTION, SUIT OR PROCEEDING SHALL BE
EFFECTIVE AGAINST ANY PARTY HERETO IF GIVEN PERSONALLY OR BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY ANY OTHER MEANS OF MAIL THAT
REQUIRES A SIGNED RECEIPT, POSTAGE PREPAID, MAILED TO SUCH PARTY, IN ALL SUCH
CASES, AT THE ADDRESS OF SUCH PARTY SPECIFIED IN SECTION 11.7 HEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
ENVIROKARE TECH, INC.
By: /s/ Richard M. Clark
----------------------------
Name: Richard M. Clark
Title: President
ELECTROSHIP (NY) INC.
By: /s/ Leo J. Mangan
----------------------------
Name: Leo J. Mangan
Title: Chairman
ELECTROSHIP ACQUISITION CORP.
By: /s/ Richard M. Clark
----------------------------
Name: Richard M. Clark
Title: President
ELECTROSHIP PARTNERS
By: /s/ John A. Notarianni
----------------------------
Name: John A. Notarianni
Title: Managing General Partner
/s/ John Gremmo
-----------------------------------
John Gremmo
/s/ John Notarianni
----------------------------------
John Notarianni
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/s/ Leo Mangan
----------------------------------
Leo Mangan
/s/ Raymond Joao
----------------------------------
Raymond Joao
/s/ Richard Reichler
----------------------------------
Richard Reichler
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