STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of July 26,
1996 and effective as of July 31, 1996, between ENVIROMETRICS, INC., a Delaware
corporation ("Seller"), XXXXXX X. XXXXXXXX, a South Carolina resident ("Buyer"),
and TRICO ENVIROMETRICS, INC., a South Carolina corporation (the "Company").
RECITALS:
A, Buyer was the subscriber to the original Articles of Incorporation of
Trico Engineering & Land Surveying, the former entity which all business
activity was conducted by the Company filed in South Carolina and has served as
an officer of the Company and the former entity since its organization.
B. Buyer was the owner of 100 % of the outstanding shares of capital stock
of the former entity through which activities of the Company were performed from
its organization until November 30, 1994, at which time Buyer sold all of his
interest in the Company to Seller through an asset purchase.
C, Seller now wishes to sell to Buyer, and Buyer wishes to buy from Seller,
all of the outstanding shares of capital stock of the Company, consisting of
1,000 shares of common stock (the "Stock").
AGREEMENT:
NOW, THEREFORE, in consideration of the covenants and agreements herein set
forth and in reliance on the representations and warranties contained herein,
the parties agree as follows:
1. Purchase and Sale of Stock.
1.1 Method of Transfer. Seller hereby agrees to sell, transfer, assign and
deliver to the Buyer and Buyer agrees to purchase from Seller all of the Stock
free and clear of all liens, charges and encumbrances.
1.2 Purchase Price and Method of Payment. The "Purchase Price" for the
Stock shall be 45,000 shares of Envirometrics common shares owned by Buyer,
which shall be delivered by Buyer to Seller on the Closing Date.
2. Conditions to Obligations of Seller and Buyer.
2.1 Conditions to Obligations of Buyer, The obligations of Buyer at Closing
to consummate the transactions herein contemplated are subject to the
fulfillment at or prior to Closing of each of the following conditions:
2.1.1 Release from Liability for Reservoir Capital Corporation. The Company
shall have been released from any obligation that it may have under the Seller's
$800,000.00 financing facility with Reservoir Capital Corporation, and none of
the Company's assets shall remain as collateral for the payment of such
operating line of credit.
2.1.2. Sublease of Faber Place Office Space. The Company and the Seller
shall have executed and delivered a Sublease substantially in the forms attached
hereto as Exhibits __ and __, providing for the Seller's sublease from the
Company of the office space the Company's and Seller's employees currently
occupy in Charleston, South Carolina.
2.1.3. Truth of Representations and Warranties, The representations and
warranties of Seller contained in this Agreement or in any other document
delivered at Closing shall be true and correct on and as of the Closing Date.
2.1.4. Performance of Agreements. Each agreement of Seller to be performed
on or before the Closing Date pursuant to the terms hereof or as contemplated
herein shall have been duly performed.
2.1.5. Minute and Stock Books. The minute books and stock certificate books
of the Company in the possession of Seller shall have been delivered to Buyer.
2.2. Conditions to the Obligations of Seller. The obligations of Seller to
consummate the transactions herein contemplated are subject to the satisfaction
on or before the closing Date of the Following conditions:
2.2.1. Acknowledgment and Collateralization of Company's Debt to Seller.
The Company shall have executed and delivered to Seller (i) a Promissory Note
substantially in the form attached hereto as Exhibit (the 'Note") evidencing the
Company's agreement to repay to the Seller the outstanding inter-corporate debt
of the Company as of the Closing Date and certain other post-closing advances
from Seller to the company contemplated by the parties, and (ii) a Security
Agreement substantially in the form attached hereto as Exhibit __ (the "Security
Agreement") granting the Seller a blanket security interest in the assets of the
Company, but subject to the Seller's agreement to subordinate such security
interest to that of a financial institution hereafter providing an operating
tine of credit to the Company in an amount no greater than $350,000,00 without
permission from the Note holder.
2.2.2. Guaranty of Company's Note. The Buyer and his wife shall have
executed and delivered an Unconditional Guaranty Agreement substantially in the
form attached hereto as Exhibit __ (the "Guaranty") in favor of the Seller
guaranteeing payment of the Note and all other indebtedness of the Company to
the Seller now existing or hereafter arising prior to the repayment of the Note
in full.
2.2.3 Truth of Representations and Warranties. The representations and
warranties of each of buyer and the Company contained in this Agreement or in
any other document delivered at Closing shall be true and correct on and as of
the Closing Date.
2.2.4. Performance of Agreements. Each agreement of Buyer to be performed
on or before the Closing Date pursuant to the terms hereof or as contemplated
herein shall have been duly performed.
3. Representations and Warranties of Seller.
3.1. Representation and Warranties of Seller. Seller represent sand
warrants that:
(a) Seller is a corporation duly organized, validly existing and in good
standing under the laws of Delaware, and has the corporate power to own its
property and conduct its business in the manner in which such business is now
being conducted.
(b) The execution and delivery of this Agreement and the performance of the
transactions contemplated hereby have been duly authorized and approved by all
necessary corporate action of Seller. Seller has full corporate power to enter
into and perform this agreement and the transactions contemplated hereby, and
this agreement constitutes a valid and binding agreement of Seller enforceable
in accordance with its terms.
(c) The execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated do not and will not
conflict with, or result in a breach of any term or provision of, or constitute
a default under, or result in the creation of any lien or encumbrance upon the
property or assets of Seller pursuant to the articles of incorporation or bylaws
of Seller or any agreement, indenture, mortgage, deed of trust or other
instrument to which Seller is a party or by which it is bound or to which its
properties are subject, or any law, rule, regulation, judgment, order or decree.
(d) The stock of the company consists of 100,000 authorized shares of
common stock, One Dollar ($1.00) par value, or which 1,000 shares are issued.
All such issued shares are owned of record by Seller, free and clear of all
liens, charges and encumbrances. There are no commitments, plans or arrangements
to issue, and no outstanding options, warrants or other rights calling for the
issuance of, shares of capital stock of the Company.
(e) The assets of the Company include, without limitation, the assets
listed on Schedule attached hereto.
(f) The books of account of the Company that have been maintained by the
Seller have been maintained in the usual, regular and ordinary manner on a
consistent bases.
(g) This Agreement and the consummation of the transactions contemplated
hereby will not give rise to any valid claim against the Seller for a finder's
fee, brokerage commission, or other like payment.
3.2, Representations and Warranties of Buyer. Buyer represents and warrants
that:
(a) Buyer has full power to enter into and perform this Agreement and the
transactions contemplated hereby. This Agreement constitutes a valid and binding
agreement of Buyer enforceable in accordance with its terms except as may be
limited by applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws, from time to time in effect, and any equity principles
relating to or affecting generally the enforcement of creditors' rights.
(b) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby will not conflict or be inconsistent with
or result in the termination of terms of any indenture, mortgage, deed of trust,
covenant agreement, or other instrument to which buyer or his wife is a partner
or by which they are bound, or to which any of their property is subject.
(c) The execution and delivery of this Agreement and the performance of the
agreements contemplated hereby to which the Company is a party, have been duly
authorized and approved by all necessary corporate action of the Company.
(d) Buyer is acquiring the shares of capital stock of the Company hereunder
for his own account for investment, with no present intention of reselling or
otherwise distributing the same except (i) pursuant to an offering of shares
duly registered under the Securities Act of 1933, as amended, or (ii) under
other circumstances which in the opinion of counsel to the company at the time
does not require registration under such Act.
(e) This Agreement and the consummation of the transactions contemplated
hereby will not give rise to any valid claim against the buyer or the company
for a finder's fee, brokerage commission, or other like payment.
3.3 Survival of Representations and Warranties, The representations,
warranties, convenants, and agreements of the parties shall be true and accurate
as of, and shall survive, the Closing Date.
4. Indemnification.
4.1. Indemnification of Buyer and Company Seller covenants and agrees to
indemnify and hold harmless Buyer and the Company from and against any loss,
claim, liability, obligation or expense (including reasonable attorney's fees)
suffered of paid by Buyer or the company, after the Closing Date, arising out of
or resulting from:
(a) any representation or warranty of Seller under this Agreement being
untrue or misleading when made as of the Closing Date;
(b) any breach of the obligations or covenants of Seller under this
Agreement.
(c) the parent/subsidiary relationship of Seller and the Company prior to
Closing, but not from any activities of the Company or its directors, officers,
employees or agents; or
(d) any matter addressed in Section 6.2 in which the Company is a
non-benefiting party as such
term is used therein.
4.2. Indemnification of Seller. Buyer and Company hereby covenant and agree
to indemnify and hold harmless Seller from and against any loss, claim,
liability, obligation or expense (including reasonable attorneys' fees) suffered
or paid by Seller, after the Closing Date, arising out of or resulting from:
(a) any representation or warranty of Buyer under this Agreement being
untrue or misleading when made or as of the Closing Date;
(b) any breach of the obligations or covenants of Buyer or the Company
under this Agreement;
(c) the parent/subsidiary relationship of Seller and the Company prior to
Closing, but not any activities or the Seller, its subsidiaries other than the
Company, or their directors, officers, employees or agents; or
(d) any matter addressed in Section 6.2 in which the Company is a
non-benefiting party as such term is used herein.
5. Closing.
(a) The closing ("Closing") under this Agreement shall be held on July 26,
1996 (the "Closing Date") or at such time thereafter as Seller and Buyer may
agree, but in no event later than July 31, 1996, at the offices of Ten State
Street or at such other place as the parties may mutually agree.
(b) At the Closing, Seller shall deliver or cause to be delivered to Buyer
stock certificates, endorsed in blank or accompanied by duly executed stock
powers, the aggregate of such certificates representing the Stock of the company
and all other instruments and documents required to be delivered by Seller under
this Agreement of which counsel for Buyer may reasonable request for the purpose
of closing this Agreement.
(c) At the Closing, Buyer shall deliver to Seller the Purchase Price in the
amount and form specified herein before in Section 1.2 and shall deliver all
other instruments and documents required to be delivered by Buyer and the
Company under this Agreement or which Seller may reasonably request for the
purpose of closing this Agreement.
6. Post-Closing Agreements.
6.1. Post-Closing Reconciliation of Inter-corporate Accounts. The parties
acknowledge and agree that the principal amount of the Note is the parties' best
estimate of the net amount owed by the Company to Seller on the Closing Date.
The parties will use their best efforts to determine the actual amount owed by
the Company to Seller on the Closing Date and agree on such amount. Upon the
agreement of the parties as to the correct amount, the principal amount
outstanding under the Note as set forth on the schedule attached thereto, shall
be debited or credited as appropriate, effective as of the Closing Date
6.2 Release from Mutual Obligations. Each of the Company and Seller
acknowledge that at the time of Closing, the other may continue to be a primary
obligor or co-obligor, whether through mutual undertaking, joint obligation,
guaranty, indemnification or other means, on certain debts, obligations and
contracts of such party, pursuant to which the other party derives no immediate
benefit, e.g. equipment leases entered into by Seller for equipment used and
possessed by the Company. The parties agree to use their best efforts to relieve
or remove promptly after Closing the potential liability of the non-benefiting
party in such situations and, in any event, the benefiting party agrees to
indemnify the non-benefiting party for any expenses, damages or losses incurred
after the Closing Date as a result of the failure to remove such potential
liability as of the Closing Date.
6.3. Insurance. At the Closing, the Company agrees to have obtained
policies of insurance, with respect to all its insurance needs, separate and
apart from those of Seller and its remaining subsidiaries. The Company
acknowledges that neither Seller nor any of its subsidiaries will pay premiums
on behalf of the Company after the Closing Date.
6.4 Further Assurances. The parties hereto agree to execute and deliver or
cause to be executed and delivered at the Closing, and at such other reasonable
times and places as the parties may agree thereafter, such additional documents
and instruments as any other party hereto may reasonably request for the purpose
of carrying out this Agreement.
6.5 Expenses. Each party shall pay its own expenses and costs, including
without limitation, counsel fees and transfer taxes incurred in connection with
this Agreement and the transactions contemplated hereby.
7. Miscellaneous.
7.1. Notices. Any notice or other communication required or permitted
hereunder shall be sufficiently given if sent by certified mail, postage
prepaid, addressed as follows:
In the case of Seller, to:
Envirometrics, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx
Attention: Xxxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx X. Xxxxxxxx, Esquire
Ten State Street
Charleston, South Carolina
in the case of buyer, to:
Xxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxx Xxxxx Xxxxx 000
Xxxxxxxxxx, XX 00000
or
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx XX 00000
with a copy to:
Xxxxxx X. Xxxxx, Esquire
Xxxxx Xxxxxxx & Dusebury
0000 Xxxxx Xxxxxxx Xxxx
Xxxxx 0
Xxxxxxxxxx, XX 00000
Any such notice or communication shall be deemed to have been given as of
the date so mailed.
7.2. Benefits. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their assigns and successors in interest.
7.3. Entire Agreement. The exhibits hereto and the certificates and other
documents to be furnished in connection herewith are an integral part of this
Agreement. All understandings and agreements between the parties are merged into
this Agreement which fully and completely expresses their agreements and
supersedes any prior agreement or understanding relating to the subject matter,
and no party has made any representations or warranties, express or implied, not
herein expressly set forth. This Agreement shall not be changed or terminated
except by written amendment signed by the parties hereto.
7.4. Governing Law. This Agreement and the agreements contemplated hereby
shall be construed in accordance with and governed by the laws of the State of
South Carolina, without regard to the choice of law principles of it or any
other jurisdiction,
7,5. Venue, Any cause of action arising from the terms of the Agreement
shall be brought only in a state or federal court located in Charleston, South
Carolina. Such court shall be the exclusive and sole venue for the adjudication
of any disputes hereunder, and each party hereby consents to the jurisdiction of
such court over such party.
7.6. Counterparts. This Agreement may be executed in several counterparts,
all of which taken together shall constitute one instrument.
7.7. Headings. The descriptive headings of the several sections of this
Agreement are inserted for convenience only and shall not be deemed to affect
the meaning or construction on any of the provision hereof,
IN Witness WHEREOF, this Agreement is executed by each of the parties, or
their duly authorized representative, as of the day and year first above
written.
ENVIROMETRICS. INC.
By:
Title: President & CEO
Title: Treasurer
ATTEST:
By: XXXXXX X. XXXXXXXX TRICO ENVIROMETRICS, INC. By:
Title: ATTEST:
List of Schedules:
Schedule
- List of Assets
-List of Exhibits:
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
