STOCK PURCHASE AGREEMENT
THIS AGREEMENT, made and entered into this 1st day of
August, 1999, by and between Xxxxxx X. Xxxxxxx. hereinafter
called the "Seller' and WFD Partnership and/or assigns,
hereinafter called the "Buyer".
WITNESSETH:
WHEREAS, Seller owns, of record 2,000,000 of the issued and
outstanding shares of stock of Environmental Monitoring & Testing
Corporation; and
WHEREAS, the Seller desires to sell to the Buyer, and the
latter desires to purchase from Seller, 1,000,000 shares of stock
of Corporation, and
WHEREAS. the parties desire to stipulate all the terms.
conditions and covenants of such purchase and sale;
NOW, THEREFORE, in consideration of the premises, the
representations, warranties and mutual covenants contained
herein, IT IS AGREED:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller represents, warrants, covenants and agrees that
the following are true and correct on the date hereof and will
continue true and correct on each day through the closing date as
though made as and of such date:
1.1 Organization and Qualification. Corporation is duly
organized and existing under the laws of the State of Delaware
and is entitled to carry on its business at and in the place
where such business is now conducted.
1.2 Capital Stock The authorized capital stock of
Corporation consists solely of 30,000,000 shares of $ .01 par
value common stock of which 6,184,000 shares are issued and
outstanding, and of which the Corporation holds 2,373,817 as
treasury stock and 3,810,183 shares are held by the public
including Seller. All of said issued shares are duly and validly
issued, fully paid and non assessable. Sellers shares are free
and clear of any pledge, lien, encumbrance or agreement of any
kind restricting transfer or sale. Seller is not subject to any
disability restricting the transfer contemplated by this
agreement, and Seller has valid and marketable title to the
shares held by Seller, with full legal right, power and authority
to execute, deliver and perform Seller's obligations under this
agreement and to transfer and deliver Sellers shares of
Corporation to Buyer in the manner provided by this agreement.
1.3 Options, Etc. There are no outstanding options,
warrants, rights, contracts or agreements of any kind for the
issuance (upon conversion, exercise or otherwise) or sale of any
additional capital stock of Corporation or for the issuance or
sale of any other securities or obligations of Corporation or for
the purchase by Corporation of any of its shares. There are no
other securities of Corporation issued and outstanding other than
those set forth in Paragraph 1.2 hereof.
1.4 No Affiliates. Corporation has no subsidiaries and does
not own a majority of the outstanding securities of, nor control
or have the power to control, through an ownership interest, any
corporation or other business entity.
1.5 Financial Statements. Attached hereto as Exhibit "A" is
an audited Balance Sheet of Corporation, certified by its
President, and dated September 30, 1998. together with an
unaudited Balance Sheet of Corporation, certified by its
President and dated June 30, 1999. Attached hereto as Exhibit "B"
is an audited Income Statement of Corporation, certified by its
President, and covering the period September 30, 1997 to
September 30, 1998, together with an unaudited Income Statement
of Corporation, certified by its President, covering the period
October 1, 1998 to and through June 30, 1999. To the best of
Seller's knowledge, said Balance Sheets and Income Statements are
true, correct and complete, has been prepared in accordance with
generally accepted accounting principles, applied on a consistent
basis, and correctly presents the financial position of
Corporation as of the date of the Balance Sheets and income and
expenses of Corporation for the period referenced.
1.6 Liabilities. At the closing date Corporation shall have
only liabilities which are current and normal liabilities
incurred in the ordinary course of business.
1.7 Taxes. The Federal Income tax returns of Corporation
(including any amendments thereto contemplated by Corporation)
have been filed for all prior fiscal years to and including
September 30, 1998, and all taxes shown on said returns have been
paid or provided for in the Balance Sheet. Any and all
assessments and deficiencies or, increases proposed as a result
of any and all examinations or audits of such returns concluded
by the Internal Revenue Service have either been paid or are
included in the liabilities or accruals for taxes provided for in
the Balance Sheet. Corporation is not delinquent in the filing of
any other Federal or any State or Local tax returns or reports
and all taxes shown on said returns have been paid or provided
for in the Balance Sheet; and, with regard to such returns or
reports, the examination of which has been concluded by the
appropriate governmental authority, all assessments and
deficiencies or increases proposed have either been paid or are
included in the liabilities or accruals for taxes provided for in
the Balance Sheet. No waivers or extensions have been signed or
agreed to by Corporation with regard to waiving or extending any
statute of limitations relating to Federal, State or Local taxes.
1.8 Litigation and Proceedings. There are no actions, suits,
proceeding or investigations pending against Corporation at law
or in equity or before any governmental department, commission,
board, agency or instrumentality, which involves the likelihood
of any judgment or liability not fully covered by insurance, or
which may result in any materially adverse change in the
business, operations, properties or assets, or in the condition
(financial or otherwise) of Corporation. Corporation is not in
default with respect to or bound by any order, injunction or
decree of any court, governmental department, commission, board,
agency or instrumentality. Seller had no knowledge or reasonable
basis for knowledge of any threatened actions, suits, proceedings
or investigations pending against Corporation at law or in equity
or before any governmental department, commission, board, agency
or instrumentality which involve the likelihood of any judgment
or in any materially adverse change in the business, operations,
properties or assets, or in the condition (financial or
otherwise) of Corporation.
1.9 Adverse Agreements. Neither corporation nor the Seller
is a party to any contract or agreement, or subject to any
charter provision or other legal restriction that prevents or
restricts complete fulfillment of all the terms and conditions of
this agreement or compliance herewith or which materially and
adversely affects the business, property, assets or condition
financial or otherwise, of Corporation and which have not been
disclosed to Buyer.
1.10 Absence of Certain Changes or Events. Since the Balance
Sheet Date, Corporation has not (i) borrowed or agreed to borrow
any funds or incurred, or become subject to, any obligation or
liability, absolute or contingent, except liabilities and
obligations incurred in the ordinary course of business; (ii)
paid any obligation or liability (absolute or contingent) other
than current liabilities reflected as shown in the Balance Sheet
and current liabilities incurred since that date in the ordinary
course of business; (iii) mortgaged, pledged or subjected to
lien, charge or encumbrance of any of its assets, real or
personal, tangible or intangible, or canceled any of its debts or
claims, except in such case, in the ordinary course of business;
(iv) suffered any losses or waived or released any rights of
value; (v) issued or delivered or contracted to issue or deliver
any stocks, bonds or other corporate securities, or granted or
agreed to grant any options (including employee stock options) or
warrants calling for the issue thereof; (vi) increased, decreased
or reclassified its capital stock or amended its Articles or
Bylaws; (vii) declared or made or agreed to declare or make any
payment of dividends or distributions of any assets of any kind
whatsoever to stockholders, or redeemed or purchased or agreed to
purchase or redeem, any shares of their stock; (viii) except in
the ordinary course of business made or permitted any amendment
or termination of any contract, agreement, and license to which
it is a party; (ix) made any accrual or arrangement for a payment
of bonuses or special compensation of any kind or any severance
or termination pay to any present or former officer or employee;
(x) increased the rate of compensation payable or to become
payable by it to any of its officers or employees over the rate
being paid on the Balance Sheet Date, or adopted any profit
sharing bonus, deferred compensation, insurance provision,
retirement or any other employee benefit plan, payment or
arrangement for or with any such officers or employees; or (xi)
entered into any other transaction, except in the ordinary course
of business; (xii) there has not been any change in Corporation's
business or in its condition, financial or otherwise, other than
changes in the ordinary course of business, none of which is
materially adverse; (xiii) there has not been any damage,
destruction or loss whether or not covered by insurance,
materially and adversely affecting the ability of Corporation to
conduct its business, or any other damage destruction or loss of
any material nature; (xiv) there has not been any labor dispute
or any event or condition of any character materially and
adversely affecting the business of Corporation; (xv) Any event
or condition of any character, materially and adversely affecting
Corporation's business or prospects
1. 11 Scheduled Property Exhibit "C" attached hereto
includes the following property: all real property owned by
Corporation (including any improvements located thereon); all
trade names and trademarks owned by Corporation or applications
for registration thereof,* all motor vehicles owned by
Corporation; and all other tangible assets (including without
limitation, furniture fixtures, equipment and inventory located
in Corporation's business locations owned by Corporation.
1.12 Title to Property. (i) Real Property. Corporation owns
outright the fee simple title in and to the real property
described in said Exhibit "C" free and clear of all liens,
mortgages, charges, encumbrances of any nature whatsoever, expect
the lien of current state and local property taxes not in
default; and; (ii) Other Assets. Corporation has and on the
closing date will have (subject to any changes in properties and
assets occurring in the ordinary course of business or consented
to by Buyer) good and marketable title to all of its other
properties and assets (the "other assets"), including without
limitation all personal property and equipment necessary to carry
on the business operations. All other assets reflected in the
Balance Sheet or acquired since the Balance Sheet Date and all
those other assets set forth in Exhibit "C", free and clear of
all defects, liens, encumbrances, claims or rights of third
parties, except (a) for current taxes not delinquent.
1.13 Insurance. All physical properties and assets of
Corporation are covered by insurance in reasonable amounts and
Corporation carries public liability, workmen's compensation and
other usual types of insurance as required under law and/or
dictated by customary and prudent practice, in reasonable
amounts. Attached as Exhibit "E" is a list of each insurance
policy maintained by Corporation setting forth the name of the
insurance carried, the annual premium and the amount and type of
coverage. Such insurance policies shall not be changed or
modified between the date hereof and the closing without the
consent of Buyer. Corporation is not and at closing shall not be
in default in relation to any such policies.
1.14 Contracts, Leases, Etc. Attached hereto as Exhibit "D"
is a list of certain valid and existing contracts, leases,
licenses and agreements to which the Corporation is a party.
Seller has delivered to Buyer a true and correct copy of each
such instrument in effect on the date hereof. Except only as
stated in said Exhibit "D", or any other Exhibit to this
agreement, Corporation is not a party to any written or oral (i)
contract for employment which may not be terminated on not more
than seven (7) days' notice without liability to Corporation;
(ii) contract with any labor union; (iii) continuing contract or
agreement for the future purchase of materials, supplies,
services or equipment; (iv) lease. and license agreement (v)
pension or profit sharing plan, retirement plan, bonus agreement
or plan, stock purchase or stock option plan, severance pay plan
or vacation plan with respect to its employees or others; (vi)
chattel mortgage, equipment lease, security agreement or
conditional sales agreement; (vii) partnership, joint venture or
other business enterprise agreement; or (viii) any other contract
not made in the ordinary course of business. Corporation has
performed in all material respects all obligations required to be
performed by it and is not in default in any material respect,
under any agreement, obligation or other commitment (oral or
written), leases or license agreements or any other agreements to
which it is a party or to which it is bound. Corporation is not a
guarantor or secondarily liable for the payment of any debt
liability or dividend, other than checks and similar items in the
ordinary course of business.
1.15 Compliance With Laws. Corporation has made every
effort, to the best of its knowledge and ability, to comply with
all laws, regulations, ordinances and orders applicable to its
business and property, and no notice has been given to
Corporation claiming any violation thereof.
1.16 Directors and Officers, Compensation, Banks. Attached
hereto as Exhibit "F" is a true and complete list as of the date
of this agreement, showing (i) the names of all Corporation's
directors and officers; (ii) the names of all persons whose
compensation from Corporation for the year 1999 will equal or
exceed Forty Thousand Dollars ($40,000.00), together with a
statement of the full amount paid or payable to each such persons
for services rendered or to be rendered in 1999; (iii) the name
of each bank in which Corporation has an account, or safe deposit
box, and the names of all persons authorized to draw thereon, or
to have access thereto.
1.17 Condition of Buildings and Equipment The buildings,
furniture, fixtures, vehicles, machinery and equipment owned or
leased by Corporation are all in good operating condition and
in a state of good maintenance and repair, including, without
limitation, the structural, mechanical, electrical and plumbing
systems of said buildings, the roofs thereof, and the fixtures
and equipment in said building.
1.18 Conduct of Business. Pending closing and except as
shall first be approved by Buyer in writing, or as is otherwise
permitted by this Agreement (i) The business of Corporation will
be conducted only in its ordinary course and the character of
such business shall not be changed nor any different business
undertaken; (ii) No material contract commitment or understanding
of any kind will be entered into by and on behalf of Corporation,
except commitments for the purchase of materials or supplies
required in daily operation for no more than a thirty (30) day
period, and no contract for the acquisition or sale of real
estate or lease, license agreement shall be entered into; (iii)
No material business decision or action outside the ordinary
course of business, whether by way of hiring or firing key
employees, or increasing the compensation of key employees, or
paying or authorizing the payment of bonuses or commissions to
key employees, or ordering or buying large quantities of
inventory or materials, or otherwise, shall be made or taken;
(iv) Corporation and the Seller will duly comply and act in
accordance with the provisions of the representations and
warranties contained in this agreement.
1. 19 Consents. Seller will, or will cause Corporation to
use its best efforts to secure, prior to the closing date, the
written consent of all persons whose consents may be required
with respect to licenses, and agreements held by Corporation,
wherever such consents may be necessary under the terms of such
licenses, and agreements in order effectively to preserve to
Corporation the rights and benefits thereunder after closing.
1.20 Preserve Organization. Seller will, or will cause
Corporation to use its best reasonable efforts to preserve intact
the business organization of Corporation and to keep available to
Corporation the services of its employees, and to preserve for
Corporation the present relationship between it and its customers
and others having business relationships with it.
1.21 Governmental Authorization. Corporation has all
licenses, permits and other governmental authorizations that are
required in connection with its business as conducted on the
date hereof. The real property owned by Corporation is properly
zoned for its existing uses, the existing uses do not violate any
law, ordinance or government order, and to the best of Seller's
knowledge based on reasonable inquiry, there are no threatened
violations of or notices with respect to any of the foregoing.
1.22 Environmental Matters. The use and operation of the
property utilized by Corporation for the operation of its
business comply with all applicable environmental laws, rules and
regulations and Seller shall continue to cause Corporation to
comply therewith at all times to and through the date of closing.
Specifically, and without limiting the generality of the
foregoing, there not now, nor shall there be, to and through the
date of closing, any Hazardous Waste located or stored in, upon
or at the property utilized by Corporation for its business
purposes; and there are not now, nor shall there be, to and
through the date of closing, at any time any releases or
discharges from the property utilized by Corporation for its
business purposes. "Hazardous Waste" shall mean and include those
elements or compounds which are contained in the list of
hazardous substances adopted by the United States Environmental
Protection Agency (EPA) and the list of toxic pollutants
designated by Congress or the EPA or defined by any other
Federal, State or local statute, law, ordinance, code, rule,
regulation, order or decree regulating relating to or imposing
liability or standards of conduct concerning any hazardous, toxic
or dangerous waste, substance or material as now or at any time
in effect.
1.23 Disclosure. No statement of fact by Seller in this
agreement or in any statement furnished or to be furnished to
Buyer pursuant hereto or in connection with any transaction
contemplated hereby contains or will contain any untrue statement
of a material fact or will omit to state a material fact
necessary to make the statements herein or therein not
misleading.
1.24 Public Company. Seller warrants and represents that
Corporation is a publicly traded company, currently trades over
the counter under the symbol "EVMT", has met and complied with
all requirements for a publicly trading company under the Federal
Securities Law, is currently in good standing with the United
States Securities; and Exchange Commission, subject to no notices
of violation, investigations, or other inquiries (including those
of State regulatory authorities). Attached hereto as Exhibit "G"
and Exhibit "H" respectively, as the most recent 10K and 10Q
reports filed by Corporation with the United States Securities
and Exchange Commission, which Seller represents are to the best
of his knowledge and belief, true and correct.
ARTICLE II
SALE OF STOCK
Subject to and in reliance upon the representations,
warranties, covenants and agreements herein contained and subject
to the terms and conditions herein stated.
2.1 Agreement to Sell. Seller agrees to sell, transfer and
deliver to Buyer on the closing date 1,000,000 of the issued and
outstanding capital stock of Corporation and Buyer agrees to
purchase from Seller on the closing date said stock at and for a
total purchase price of Two Hundred Seventy-Seven Thousand Five
Hundred ($277,500.00) Dollars. The total purchase price shall be
payable at closing by cashier's check or wire transfer.
2.2 Closing Date. The closing of the sale provided by this
agreement shall be made at the office of Buyer or at a mutually
designated place at 1:00 o'clock P.M., on or before the 3rd day
of November, 1999 (the "closing date"), unless accelerated or
extended by mutual agreement of the parties.
2.3 Closing. At the closing Seller shall deliver to Buyer
1,000,000 shares of the issued and outstanding shares of stock of
Corporation duly endorsed for transfer or accompanied by duly
executed stock powers with medallion signatures guaranteed by a
commercial bank, in exchange for the payment and delivery to
Seller of the purchase price represented by a cashier's or
certified check or wire transfer, all as provided in Paragraph 2.
1. In addition Seller shall deliver to Buyer (I) Corporation's
statement of net current assets; (ii) the minute books, stock
books, stock transfer books, corporate seal, files, ledgers,
books of account, leases, licenses, franchises, contract and
other valuable papers and assets of Corporation; (iii) the
written resignations of each director and officer of Corporation;
(iv) all policies of insurance issued to or for the benefit of
Corporation currently in effect, and all policies expired but
covering claims not barred by any Statute of Limitations; (v) a
Certificate of Good Standing of Corporation from the Secretary of
State of Delaware, dated not more than ten (10) days prior to the
closing; (vi) the parties shall deliver or cause to be delivered
any other certificates, opinions or other documents required as
provided for under this agreement.
ARTICLE III
MISCELLANEOUS
3.1 Governing Law. This agreement shall be construed and
enforced under the laws of the state of Florida.
3.2 Successors and Assigns. This agreement shall be binding
upon and inure to the benefit of the Buyer, his heirs, personal
representatives and assigns, and to Seller, his heirs, personal
representatives and assigns.
3.3 Legal and Accounting Fees. Since this agreement is for
the exchange by Seller of his stock in Corporation, Corporation
shall not be charged with any legal or accounting fees for
services rendered relating to this agreement, negotiation
therefor, or consummation thereof.
3.4 Notice. All notices necessary or desired to be given
hereunder shall be in writing and sent by certified or registered
mail, postage prepaid, if for Seller addressed to 0000 Xxx Xxxx,
Xxxx Xxxxx, XX 00000 and if for Buyer addressed to 0000 XX 00xx
Xxx Xxxxx Xxxxxxx, XX 00000 or to such other address as any of
the parties hereto may designate by certified mail, as above
provided, will be deemed given when deposited in the United
States mails.
3.5 Representations and Warranties to Survive Closing. All
representations, warranties and agreements made by any party
hereto in this agreement or pursuant hereto shall survive the
closing date of this agreement. All statements contained herein
or in any certificate, exhibit list or other document shall be
deemed to be representations and warranties.
3.6 Headings. The various headings used in this agreement
are for convenience only and shall not be used in interpreting
the text of the agreement.
3.7 Counterparts. This agreement may be executed in any
number of counterparts, each of which shall be deemed an original
and all of which together shall constitute together one and the
same instrument. A faxed signature shall, for the purpose of this
agreement, be deemed an original.
IN WITNESS WHEREOF, the undersigned have executed this Stock
Purchase Agreement on the day and year first above written.
In the Prescence of
Seller
/s/ unreadable /s/ Xxxxxx X. Xxxxxxx
Buyer
/s/ unreadable /s/ unreadable
INDEX TO EXHIBITS
Exhibit A Balance Sheet
Exhibit B Income Statement
Exhibit C Scheduled Property
Exhibit D Contracts, Equipment Leases, Licenses, etc.
Exhibit E Insurance
Exhibit F Directors, Officers, Highly Paid Employees, Banks
Exhibit G Most Recent 10 K Report
Exhibit H Most Recent 10 Q Report
