PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT made this 2 day of May, 2003, by and between XXXXX X.
XXXXX, Individually, whose address is 0 Xxxxxxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxx
Xxxxxx 00000 (hereinafter referred to as "Seller") and VERIDIUM ENVIRONMENTAL
CORPORATION, whose address is 0 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as the "Purchaser"). Seller and Purchaser shall
individually, at times, be referred to as a "Party" or together, at times, as
the "Parties" and this Purchase Agreement shall hereinafter, at times, be
referred to as the "Agreement."
WHEREAS, Seller is the owner of a Twenty-Five (25.00%) Percent ownership
interest in the outstanding membership units (equity) of XXXXX ENVIRONMENTAL
SERVICES LLC ("JES")("JES Interest") , as well as currently being the owner of a
Fifty (50.00%) Percent ownership interest in the outstanding equity of
Enviro-Safe Corporation ("Enviro") ("Enviro Interest") ; and WHEREAS, prior to
or at the time of Closing of this Agreement, Seller shall have caused Enviro to
redeem Fifty (50.00%) Percent of the outstanding equity ownership interest
therein held by the other shareholders of Enviro, such that Seller shall become
the owner of One Hundred (100.00%) Percent of the outstanding equity of Enviro
(the "Redemption") ; and
WHEREAS, Seller desires to sell all of his JES Interest and the Enviro Interest
after the Redemption to Purchaser, upon the terms and conditions hereinafter set
forth; and
WHEREAS, Purchaser desires to purchase the from Seller his JES Interest and the
Enviro Interest upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises, representations,
covenants and warranties of the Parties set forth herein, the receipt and
sufficiency of such consideration being hereby expressly acknowledged, the
Parties do hereby agree as follows:
1. RECITALS. The recitals set forth above are incorporated herein by this
reference as though set forth verbatim and at length.
2. SALE AND PURCHASE OF SELLER'S JES INTEREST AND ENVIRO INTEREST. Seller
shall sell, transfer and deliver all of his right, title and interest
in and to the JES Interest and the Enviro Interest to Purchaser, by
properly endorsing stock certificates and membership certificates (or
appropriate stock powers or other instruments of conveyance acceptable
to Purchasers' counsel) representing the JES Interest and the Enviro
Interest and delivering same to Purchaser at Closing, as hereinafter
defined.
3. PURCHASE PRICE. The total purchase price to be paid by Purchaser to
Seller for the JES Interest and the Enviro Interest to be sold and
purchased hereunder is as follows (hereinafter, collectively the
"Purchase Price") :
A. EIGHT HUNDRED FIFTY THOUSAND and 00/100 ($850,000.00) DOLLARS, as
partial consideration for the JES Interest, to be paid by
Purchaser to Seller as Closing.
B. TWO HUNDRED THOUSAND and 00/100 ($200,000.00) DOLLARS, as
additional consideration for the JES Interest.
C. ONE HUNDRED EIGHTY THOUSAND ($180,000.00) DOLLARS, which amount
is owed to Seller and GREEN MANAGEMENT CORP. by XXXXX
ENVIRONMENTAL SERVICES (NE), INC.
D. FIVE HUNDRED THOUSAND and 00/100 ($500,000.00) DOLLARS for
Sellers' One Hundred (100.00 %) Percent interest in Enviro
(following the Redemption), said amount to be paid by Purchaser
to Seller at Closing as follows: (i) at Closing, Seller shall
receive FOUR MILLION shares of common stock of Purchaser at a
price protected value of $0.10 per share, said shares to be
redeemed, at the Seller's election, by Purchaser at the rate of
ONE MILLION shares per year, the first redemption to be made on
the One (1) year anniversary of Closing and thereafter for the
following Three (3) years on the anniversary of Closing pursuant
to the terms hereof, and (ii) the vesting and exercise of certain
performance-based options to purchase common stock of Purchaser
currently held by Seller in the amount of ONE MILLION EIGHT
HUNDRED FIFTY THOUSAND shares, the exercise of which options
shall be at a price protected value which will make the exercise
of such options, in total, equal to ONE HUNDRED THOUSAND and
00/100 ($100,000.00) DOLLARS
(i) Redemption Rights. Purchaser shall have the obligation to
redeem the stock delivered to Seller under Paragraph 3(D)(I)
on each successive anniversary date of Closing unless
Purchaser shall have received from Seller reasonable written
notice of Seller's election NOT to have said shares redeemed
within no less than Sixty (60) days of each relevant
anniversary date. If Purchaser fails to effectuate any
required redemption hereunder (and fails to subsequently,
upon the receipt by Purchaser of reasonable written notice
of said defect from Seller, to cure such defect within Sixty
(60) days of the relevant anniversary date) or otherwise
becomes insolvent or effects an assignment for the benefit
of creditors, files for bankruptcy (voluntarily or
involuntarily), or has a receiver appointed, Seller's
obligations under its Employment Agreement with Purchaser of
even date herewith shall be null and void and of no further
effect. The performance of either Party hereto under the
Employment Agreement shall not effect in any way the
obligations of the Parties under this Paragraph. E. FIFTY
THOUSAND and 00/100 ($50,000.00) DOLLARS, which amount is
owed to Seller by Enviro.
F. Purchaser shall pay Seller the sum of FIFTEEN THOUSAND and 00/100
($15,000.00) Dollars, in corporate funds, as a non-refundable
deposit to be applied to the purchase price set forth in
Paragraph 3B hereinabove. Said sum shall be paid by Purchaser to
Seller upon the execution of this Agreement. 4. CLOSING. The
closing of the sale and purchase under this Agreement (the
"Closing") is anticipated to take place on or before April 30,
2003 (or such other date as the Parties shall mutually confirm in
writing) at (i) the offices of Law Offices of Xxxxxx Xxxxxx Xxxx,
P.C., 00 Xxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxxxx, Xxx Xxxxxx 00000
or, (ii) if requested by the Purchaser at least two (2) business
days prior to Closing, at Purchasers' place of business or the
offices of Purchaser's principal lender (the date of Closing
being herein referred to as the "Closing Date" or losing .
5. REPRESENTATIONS AND WARRANTIES.
A. Seller hereby represents and warrants to Purchaser that the following
are true and accurate and will be so at Closing:
(i) Seller has the full and complete power to transfer the JES
Interest and Enviro Interest to Purchaser without obtaining the
consent or approval of any other person or governmental
authority. This Agreement constitutes a legal, valid and binding
obligation of Seller enforceable in accordance with its terms.
Notwithstanding the foregoing to the contrary, Seller does hereby
represent that he is subject to the terms and conditions of a
certain JES Operating Agreement dated July 17, 1998 (hereinafter
referred to, along with all other documents executed in
conjunction therewith, the agreement . Seller has obtained the
consent of the other parties to the Agreements to enter into the
transaction hereunder and shall indemnify and save Purchaser
completely free and harmless from and against any and all claims
(including reasonable attorneys fees and costs incurred by
Purchaser) which any other parties to the Agreements may have
against Seller relative to the transactions contemplated
hereunder.
(ii) Except as set forth on Exhibit B attached hereto and incorporated
herein by this reference, at Closing, all of the JES Interest and
Enviro Interest being sold hereunder shall have no liens,
encumbrances or claims of any nature whatsoever against it, and
Seller has good and marketable title to said JES Interest and
Enviro Interest.
(iii)The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not
violate any law, rule or regulation, or court or administrative
order or result in a breach or violation of, or constitute a
default, under any agreement, instrument, judgment or order to
which Seller is a party, including, but not limited to, the
provisions of the charter and organizational documents of JES and
Enviro.
(iv) There is no action, suit, proceeding, claim or governmental
investigation pending or, to the knowledge of Seller, threatened
against Seller or affecting the transactions contemplated by this
Agreement brought by or on behalf of or against him or JES or
Enviro, except as set forth in the attached Exhibit B. There is
no outstanding order, writ, injunction or decree of or
stipulation with any court, government or governmental agency or
instrumentality affecting or relating to the assets or the
business of JES or Enviro or affecting the transactions
contemplated by this Agreement, except as set forth in the
attached Exhibit B.
(v) Neither this Agreement nor any other certificate, written
statement or document required to be furnished or to be furnished
to Purchaser, pursuant to the terms of this Agreement, by or on
behalf of Seller, pursuant to or in connection with the
transactions contemplated by this Agreement, contains or will
contain any misstatement of material fact, or omits or will omit
to state any material fact which will cause the statements
contained herein or therein to be misleading.
(vi) The authorized stock of Enviro consists solely of Fifteen
Thousand (15,000) shares of common stock, no par value (the
"Capital Stock"), of which Seven Thousand Five Hundred (7,500)
shares will be issued and outstanding at the time of Closing
(following the Redemption). All of the Capital Stock is validly
issued, fully paid and non-assessable, and such Capital Stock has
not been issued in violation of federal securities law or the
securities laws of any other jurisdiction. There are no
outstanding subscriptions, options, rights, warrants, convertible
securities or other agreements or commitments obligating Enviro
to issue, reissue, acquire or otherwise transfer any additional
shares of its Capital Stock, except as set forth in the
Agreements.
(vii)The authorized membership units of JES consist solely of ONE
THOUSAND (1,000) Membership Units (the "Membership Units"), of
which ONE THOUSAND (1,000) Units are issued and outstanding. All
of the Membership Units are is validly issued, fully paid and
non-assessable, and such Membership Units have not been issued in
violation of federal securities law or the securities laws of any
other jurisdiction. There are no outstanding subscriptions,
options, rights, warrants, convertible securities or other
agreements or commitments obligating JES to issue, reissue,
acquire or otherwise transfer any additional Membership Units. B.
Purchaser hereby represents and warrants to Seller that the
following are true and accurate and will be so at Closing:
(i) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will
not violate any law, rule or regulation, or court or
administrative order or result in a breach or violation of,
or constitute a default, under any agreement, instrument,
judgment or order to which Purchaser is party.
(ii) There is no action, suit, proceeding, claim or governmental
investigation pending or, to the knowledge of Purchaser,
threatened against Purchaser or affecting the transactions
contemplated by this Agreement brought by or on behalf of or
against him. There is no outstanding order, writ, injunction
or decree of or stipulation with any court, government or
governmental agency or instrumentality affecting or relating
to Purchaser or affecting the transactions contemplated by
this Agreement.
(iii)Neither this Agreement nor any other certificate, written
statement or document required to be furnished or to be
furnished to Seller, pursuant to the terms of this
Agreement, by or on behalf of the Purchaser, pursuant to or
in connection with the transactions contemplated by this
Agreement, contains or will contain any misstatement of
material fact, or omits or will omit to state any material
fact which will cause the statements contained herein or
therein to be misleading. 6. DELIVERIES AT CLOSING.
At Closing Seller shall deliver the following:
(i) Any documents or certificates that are necessary to transfer
to Purchaser good, clear and marketable title to the JES
Interest and the Enviro Interest, and all certificates and
other instruments and documents required by the terms of
this Agreement to be delivered by Seller at or prior to
Closing or otherwise required in connection with the
transactions contemplated hereunder.
(ii) Seller shall deliver the opinion of Xxxxxx X. Xxxxx XX,
Esq., Xxxxxxx & Xxxxxx, LLP, attorneys at law, counsel for
Seller, dated the Closing Date, in form and substance
satisfactory to Purchaser and Purchasers counsel, to the
effect set forth Paragraph 5 hereof. In rendering the
foregoing opinion, such counsel may rely as to factual
matters upon certificates or other documents furnished by
officers and directors of Purchaser and by government
officials and upon such other documents and data as such
counsel deems appropriate as a basis for their opinions.
Such counsel may specify the jurisdiction or jurisdictions
in which they are admitted to practice, that they are not
admitted to the Bar in any other jurisdiction or experts in
the law of any other jurisdiction and that such opinions are
limited accordingly. If such counsel is not authorized to
practice law in the State of Connecticut and the
Commonwealth of Massachusetts, Purchaser may require Seller
counsel to obtain an opinion from counsel authorized to
practice law in such jurisdiction(s).
(iii)Seller shall have furnished Purchaser with an executed
Employment Agreement containing covenants of
confidentiality, non-solicitation and a covenant not to
compete in the form attached hereto and incorporated herein,
to be executed at Closing.
At Closing Purchaser shall deliver the following items to
Seller:
(iv) The Purchase Price as required and pursuant to the terms set
forth in Paragraph 3 of this Agreement.
(v) An executed Shareholders Agreement for Enviro in the form
attached hereto to be executed at Closing.
7. BROKERS. Each of the Parties represents and warrants to the other Party
that no broker, finder or agent has acted on its behalf in connection with
this Agreement or the transactions contemplated hereunder and no
compensation is payable to any such broker or finder.
8. FURTHER INSTRUMENTS. Each of the Parties hereto agrees at any time or times
and from time to time, to make, execute and deliver any and all such other
and further instruments or documents and do any and all such acts and/or
things as the other Party shall reasonably require for the purpose of
giving full force and effect to this Agreement.
9. NOTICES. All demands and notices given hereunder shall be sent by
registered and certified mail addressed to the respective Parties at the
addresses of their residences or location set forth above, or to such other
address as each may hereafter designate by registered or certified mail.
10. GOVERNING LAW. This Agreement has been made in the State of New Jersey and
shall be interpreted, construed and performed and enforced under and in
accordance with the laws of the State of New Jersey, regardless of conflict
of laws principles.
11. BENEFIT. This Agreement shall be binding upon, enforceable by and against,
and inure to the benefit of the Parties hereto, and their respective heirs,
legal representatives, fiduciaries, successors and assigns.
12. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding of the Parties with respect to the transactions contemplated
hereby and thereby supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof. This Agreement may be
amended only by a written instrument executed by the Parties.
13. NON-WAIVER. The failure of any Party hereto at any time and from time to
time to require performance by another Party of any obligations under this
Agreement shall in no manner affect the right to enforce any provision of
this Agreement at any subsequent time, and the waiver of any rights arising
out of any breach hereof shall not be construed as a waiver of any rights
arising out of any subsequent breach.
14. SEVERABILITY. In the event any one (1) or more of the provisions of this
Agreement shall be deemed to be illegal or unenforceable, such illegality
or unenforceability shall not affect the validity and enforceability of the
remaining legal and enforceable provisions hereof which shall be construed
as if such illegal or unenforceable provisions have not been inserted
herein.
15. HEADINGS. Any headings in this Agreement have been inserted for convenience
of reference only and shall, in no way, restrict or otherwise affect the
construction of the terms and provisions hereof.
16. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be considered an original.
17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the agreements,
understandings, obligations, representations and warranties made hereunder
shall survive the execution of this Agreement and the closing of the
transactions contemplated hereunder.
18. PREPARATION AND NEGOTIATION OF THIS AGREEMENT. Each Party hereto has
participated equally in the preparation and negotiation of this Agreement
and each Party hereto hereby unconditionally and irrevocably waives to the
fullest extent permitted by law any rule of interpretation or construction
requiring that this Agreement be interpreted or construed against the
drafting party.
19. INDEMNIFICATION. Seller shall indemnify and hold harmless Purchaser and
each of its affiliates or other related entities from and against any and
all losses, damages, liabilities and claims (including legal fees and
costs) arising out of, based upon or resulting from any inaccuracy as of
the date hereof or as of the Closing Date of any representation or warranty
of Seller which is contained in or made pursuant to this Agreement or any
breach by Seller of any obligations contained in or made pursuant to this
Agreement including, without limitation, with respect to all liabilities,
commitments and obligations of Seller. As a material inducement to
Purchaser entering into and consummating the transaction contemplated
hereunder, Seller does hereby agree to hold Purchaser completely free and
harmless and indemnify Purchaser from and against any and all claims which
Seller has or may have against any stockholder, member, director, officer,
agent or other person or entity related to JES, Enviro or Xxxxx whatsoever.
Purchaser shall have no obligation whatsoever to participate in any
litigation or other action between Green and any stockholder, member,
director, officer, agent or other person or entity related to JES, Enviro
or Xxxxx.
20. THE PARTIES ACKNOWLEDGE THAT THEY HAVE EACH RECEIVED A COPY OF THIS
AGREEMENT, THAT THEY HAVE READ AND FULLY UNDERSTAND THIS AGREEMENT, AND
THAT THEY HAVE BEEN ADVISED TO SEEK AND HAVE SOUGHT INDEPENDENT LEGAL
COUNSEL OF THEIR CHOICE TO AID IN THEIR UNDERSTANDING HEREOF.
21. PARTIES IN INTEREST. Nothing in this Agreement, express or implied, is
intended to confer upon any person not a Party to this Agreement any rights
or remedies of any nature whatsoever under or by reason of this Agreement.
22. FURNISHING INFORMATION; ANNOUNCEMENTS. Seller shall not issue any press
releases or otherwise make any public statement with respect to the
transactions contemplated hereby without the prior written consent of
Purchaser. Any notification of JES, Enviro or Xxxxx employees of the
transactions contemplated hereby shall be subject to prior approval by
Purchaser. Any notices or other information to be disseminated shall be
submitted to Purchaser prior to distribution or dissemination.
23. FORCE MAJEURE. Neither Party hereto shall be liable for failure to perform
any obligation under this Agreement if such failure to perform is caused by
the occurrence of any contingency beyond the reasonable control of such
Party, including, without limitation, fire, flood, strike or other
industrial disturbance, failure of transport, accident, war, riot,
insurrection, act of God or order of governmental agency or act of
terrorism. Performance shall be resumed as soon as is possible after
cessation of such cause. However, if such inability to perform continues
for more than Ninety (90) days, the other Party may terminate this
Agreement without penalty and without further notice.
IN WITNESS WHEREOF, the Parties have hereunto set their hands and seals the day
and year first above written.
WITNESS: SELLER:
/S/XXXXX X. XXXXX
------------------------- ----------------------------------
XXXXX X. XXXXX, Individually
WITNESS: PURCHASER:
VERIDIUM ENVIRONMENTAL CORPORATION
----------------------- BY:/S/XXXXX X. XXXXXXXX
-----------------------------------
NAME: XXXXX X. XXXXXXXX
TITLE: President
