Exhibit 10.16
STOCK PURCHASE AGREEMENT
This Agreement is made as of this 16th day of January, 2001 by and
between Thermo Fibergen Inc., a Delaware corporation having its principal
offices at 0 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (the "Purchaser"), B&F
Composites, Inc., a Canadian corporation, having its principal offices at 00
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx ("BFC"), Xx. Xxxxx X. Xxxxxxxx and
Xx. Xxxxx Xxxxxxx (referred to herein collectively as the "BFC Shareholders").
BFC and the BFC Shareholders are referred to herein collectively as "Seller".
W I T N E S S E T H :
WHEREAS, the parties are each party to the Thermo Fiber Composites Inc.
Shareholders' Agreement by and among the Purchaser, BFC, the BFC Shareholders
and Xx. Xxxxxxx X. Xxxxx, dated October 13, 1999 (the "Company's Shareholders'
Agreement") which provides for the purchase of the Seller's interest in NEXT
Fiber Products, Inc. (the "Company") by the Purchaser; and
WHEREAS, the purpose of this Agreement is to effectuate the purchase of
the Seller's interest in the Company by the Purchaser;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto, intending to be legally bound, do hereby agree as
follows:
1 Sale of Common Stock. Subject to the terms and conditions hereof, the
Seller hereby sells to the Purchaser and the Purchaser hereby buys four hundred
and ninety shares (490) (the "Shares") of the Company's common stock, $0.01 par
value per share (the "Common Stock"), for the following purchase price:
1.1 The Purchaser agrees not to collect or hold the Seller liable for
$2,053,000 comprising BFC's proportional share of (a) the cost of equipment of
the Company currently on order for which BFC is responsible pursuant to Section
2 of the Company's Shareholders' Agreement and (b) the operating losses of the
Company from the date of the signing of the Asset and Technology Transfer
Agreement by and among the Company, BFC, the BFC Shareholders, and Xx. Xxxxxxx
X. Xxxxx, dated October 13, 1999 (as defined therein) (the "Asset and Technology
Transfer Agreement") up to and including the Closing Date.
2 Closing Date; Delivery
2.1 Closing Date. The closing of the purchase and the sale of the Shares
hereunder (the "Closing") shall be held at the offices of White & XxXxxxxxx,
P.C. 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 on ____________, 2001
(the "Closing Date") or at such other time and place as shall be mutually agreed
upon by the Seller and the Purchaser.
2.2 Delivery. At the Closing, the Seller shall deliver to Purchaser the
certificate registered in the Seller's name representing the Shares, endorsed
for transfer to Purchaser.
3 Representations and Warranties of the Seller. Except as set forth on
Exhibit 3 attached hereto (the "Disclosure Schedule") and as a material
inducement to the Purchaser, the Seller represents and warrants the following as
of the Closing Date:
3.1 Organization and Standing. BFC is a corporation duly organized,
validly existing and in good standing under the laws of Canada. BFC has the
requisite corporate power to own and operate its properties and assets, and to
carry on its business as presently conducted and as proposed to be conducted.
BFC is licensed or qualified as a foreign corporation and is in good standing in
every state or other jurisdiction wherein the character of its property or the
nature of its activities makes such licensing or qualification necessary and
wherein the failure to be so licensed or qualified would have a material adverse
effect on the Seller.
3.2 Corporate Power. The Seller has now, and will have at the Closing
Date, all requisite legal and corporate power to enter into this Agreement and
to sell the Shares hereunder and to carry out and perform its obligations under
the terms of this Agreement.
3.3 Authorization. All corporate action on the part of the Seller, its
officers, its board of directors (the "Board") and its stockholders necessary
for the sale of the Shares pursuant hereto and the performance of the Seller's
obligations hereunder has been taken or will be taken prior to the Closing Date.
This Agreement shall constitute a valid and binding obligation of the Seller,
enforceable in accordance with its terms, except as enforcement may be limited
by applicable bankruptcy, reorganization, insolvency or moratorium laws or other
similar laws affecting creditors' rights generally or general principles of
equity whether asserted in a proceeding at law or in equity. The Shares, when
sold and transferred in compliance with the provisions of this Agreement will be
validly issued, fully paid and nonassessable, free of any liens or encumbrances,
with all issuance and transfer taxes paid thereon. Assuming the accuracy of the
Purchaser's representations in Section 4 hereof, the Shares, when sold and
transferred in compliance with the terms of this Agreement will be sold and
transferred in compliance with the registration and qualification requirements
of all applicable securities laws, as presently in effect, of the United States
and each of the states whose securities laws govern the issuance of any of the
Shares hereunder.
3.4 Compliance With Other Instruments. The Seller is not in violation in
any material respect of any term of its Charter, Bylaws, or of any term or
provision of any material mortgage, indenture, contract, agreement, instrument,
judgment, order or decree to which the Seller is a party or by which the Seller
or its assets are bound, or, to its knowledge, any statute, rule or regulation
applicable to the Seller. The execution, delivery and performance of and
compliance with this Agreement and the sale and transfer of the Shares pursuant
hereto will not result in any such violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, a default
under the Seller's Charter or Bylaws or any of the Seller's material agreements
or, to the best of the Seller's knowledge, any material order, statute, rule or
regulation applicable to the Seller.
3.5 Capitalization. The Company has authorized capital stock consisting
solely of three thousand (3,000) shares of Common Stock. There are one thousand
(1,000) shares of said Common Stock issued and outstanding. All of the Shares
are duly authorized, validly issued, fully paid, non-assessable, free of
preemptive rights and owned of record and beneficially by the Seller and
Purchaser. There are no outstanding options, warrants, rights or other
commitments to purchase or acquire the Shares. The Seller is not a party, nor is
the Seller subject, to any agreement, contract or understanding that affects or
relates to the voting with respect to any of the Shares or to the issuance, sale
or transfer of the Shares.
3.6 Good and Marketable Title. The Seller has good and valid title to
the Shares in the amounts set forth in Exhibit 3.6, annexed hereto and made a
part hereof, free and clear of all liens, options, claims, restrictions and
encumbrances of any nature whatsoever (collectively referred to herein as
"Claims and Encumbrances") and the transfer of the Shares from the Seller to the
Purchaser pursuant to this Agreement will vest in the Purchaser good and
marketable title in the Shares free and clear of any and all Claims and
Encumbrances. No legend or other reference to any purported Claims and
Encumbrances appears upon any certificate representing the Shares. None of the
Shares was issued in violation of the Securities Act of 1933, as amended, or any
other legal requirement whatsoever. At the Closing, the Seller shall deliver to
the Purchaser such bills of sale, endorsements, assignments and other good and
sufficient instruments of conveyance and transfer, in form and substance
satisfactory to the Purchaser and its counsel, as shall be effective to convey
and transfer to, and vest in, the Purchaser title to the Shares, free and clear
of any Claims and Encumbrances.
3.7 Ownership of BFC. The BFC Shareholders own of record and
beneficially one hundred percent (100%) of the issued and outstanding capital
stock of BFC (the "BFC Stock"), as set forth in Exhibit 3.7, annexed hereto and
made a part hereof, all of which are duly authorized, validly issued, fully
paid, non-assessable and free of pre-emptive rights. There are no outstanding
options, warrants, rights or other commitments to purchase any BFC Stock. There
are no outstanding options, warrants, rights or other commitments to purchase or
acquire any unissued or treasury shares of BFC Stock or other securities of BFC.
BFC has no subsidiaries and does not own, directly or indirectly, any of the
capital stock or other securities of any corporation, association, trust or
similar entity, any interest in the equity of any partnership or similar entity,
any share in any joint venture, or any other equity or proprietary interest in
any entity or enterprise, however organized and however such interest may be
denominated or evidenced. The BFC Shareholders have good and valid title to the
BFC Stock, free and clear of all liens, options, claims, restrictions and
encumbrances of any nature whatsoever.
3.8 Litigation. There is no action, suit, proceeding or investigation
pending and known to the Seller or known and currently threatened against the
Seller which questions the validity of this Agreement or the right of the Seller
to enter into it or to consummate the transactions contemplated hereby, nor does
the Company know of any basis for the foregoing.
3.9 Governmental Consent. Based in part on the representations and
warranties of the Purchaser in Section 4, no consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any governmental authority on the part of the Seller is required in
connection with the consummation of the transactions contemplated by this
Agreement.
3.10 Disclosure. To its knowledge, the Seller has fully provided the
Purchaser with all the written information which the Purchaser has requested for
the purpose of deciding whether to purchase the Shares. None of this Agreement
nor any other written statements, information or certificates made or delivered
in connection herewith, contain any untrue statement of a material fact or, to
the knowledge of the Seller, when taken as a whole, omits to state a material
fact known to the Seller necessary to make the statements herein or therein not
misleading.
3.11 Brokers and Finders. The Purchaser has not, and will not incur,
directly or indirectly, as a result of any action taken by the Seller, any
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with this Agreement.
4 Representations, Warranties and Covenants of the Purchaser. The
Purchaser hereby makes the following representations, warranties and covenants
with and to the Seller:
4.1 Risk. The Purchaser is aware that an investment in the Company is
highly speculative and that there can be no assurance as to what, if any, return
there may be on the Purchaser's investment in the Shares. The Purchaser is aware
of the Company's business affairs and financial condition and has acquired
sufficient information about the Company to evaluate the risks and merits of the
proposed investment and reach an informed and knowledgeable decision to acquire
the Shares. The foregoing however, does not limit or modify the representations
and warranties of the Seller set forth in Section 3 of this Agreement or the
right of the Purchaser to rely thereon.
4.2 Experience. The Purchaser has substantial experience in evaluating
and investigating companies similar to the Company. As a result, the Purchaser
is capable of evaluating the merits and risks of its investment in the Company
and has the capacity to protects its own interests. The Purchaser is an
"accredited investor" for purposes of the Securities Act.
4.3 No Public Market. The Purchaser understands that no public market
now exists for any of the securities sold and transferred by the Seller and that
the Seller has made no assurances that a public market will ever exist for the
Company's securities.
4.4 Authorization. This will constitute valid and legally binding
obligations of the Purchaser, enforceable in accordance with their respective
terms, subject to laws of general application relating to bankruptcy, insolvency
and the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies.
4.5 Brokers and Finders. The Seller has not, and will not incur,
directly or indirectly, as a result of any action taken by the Purchaser, any
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with this Agreement.
5 Conditions to Obligations of the Purchaser. The obligation of the
Purchaser to purchase and pay for the Shares is subject to the fulfillment or
waiver of the following:
5.1 Representations and Warranties. The representations and warranties
of the Seller contained in Section 3 hereof shall be true and correct on and as
of the Closing Date in all respects with the same effect as though such
representations and warranties had been made on and as of the Closing Date.
5.2 International Distribution Agreement. The Seller shall have entered
into an International Distribution Agreement with the Purchaser in substantially
the form annexed hereto as Exhibit 1.3.
5.3 Board Resignation. Each of the BFC Shareholders shall have submitted
to the Company their immediately effective resignation from the Company's Board
in substantially the form attached hereto as Exhibit 5.3 (the "Board
Resignation") pursuant to Section 20 hereof.
6 Conditions to Obligations of the Seller. The obligation of the Seller
to sell the Shares to the Purchaser is subject to the fulfillment or waiver of
the following.
6.1 Representations and Warranties. The representations and warranties
of the Purchaser contained in Section 4 hereof shall be true and correct on and
as of the Closing Date in all respects with the same effect as though such
representations and warranties had been made on and as of the Closing Date.
7 Indemnification.
7.1 Compensation and Indemnification by the Seller. Subject to all of
the provisions of this Section 7, the Seller by its execution of this Agreement,
jointly and severally hereby agrees to indemnify, defend with counsel reasonably
satisfactory to the Purchaser, save and hold the Purchaser and any of its
respective officers, directors, stockholders, employees, affiliates, and
assignees (collectively, "indemnified persons" and individually, an "indemnified
person") harmless from and against, and to compensate them for, any and all,
demands, claims, actions, causes of action, assessments, damages, liabilities,
losses, expenses, judgments or deficiencies of any nature whatsoever (including,
without limitation, reasonable attorneys' fees and other costs and expenses
incident to any suit, action or proceeding) (collectively, "Losses") received,
incurred or sustained by an indemnified person which shall arise, in whole or in
part, out of or result from any breach of any representation, warranty or
covenant or non-fulfillment of any obligation of the Seller under this Agreement
or under any exhibit, schedule, certificate or other document furnished in
connection with this Agreement.
7.2 Survival of Representations and Warranties. The representations,
warranties, covenants and obligations of the Seller set forth in this Agreement
shall survive any investigation at any time made by or on behalf of Purchaser
and shall survive the Closing for three (3) years, notwithstanding the
establishment of a shorter period by any applicable statute of limitations, the
provisions of which are hereby waived, except that liability with respect to any
representation, warranty, covenant or obligation as to which a claim, or notice
of a proposed claim, is made within such three-year period shall continue until
finally determined and paid. Any claim under this Section by an indemnified
person must be made by written notice to the indemnifying party within said
three-year period.
8 Negative Covenant. The Seller will not become subject to any agreement
or instrument, which by its terms would (under any circumstances) restrict the
Seller's right to perform any of its obligations pursuant to the terms of this
Agreement or the International Distribution Agreement.
9 Legends. Each certificate for Shares transferred pursuant to this
Agreement will be imprinted with a legend in substantially the following form,
which legend shall also be imprinted on the certificate therefor issued to
Purchaser to represent the Shares transferred to it:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR TRANSFERRED OR OFFERED
FOR SALE OR TRANSFER UNLESS A REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND OTHER APPLICABLE SECURITIES LAWS WITH RESPECT TO SUCH
SECURITIES IS THEN IN EFFECT, OR IN THE OPINION OF COUNSEL, SUCH
REGISTRATION UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES
LAWS IS NOT REQUIRED."
10 Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by the Seller without the prior written consent of the Purchaser.
11 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts without regard to
its conflicts of laws provisions.
12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which together shall be deemed to be one and the same
agreement.
13 Notices. All notices and other communications provided for herein
shall be in writing and shall be deemed to have been duly given if delivered
personally or to the Purchaser or to the Seller at the address set forth in the
preamble above.
14 Entire Agreement; Amendment; Waiver. This Agreement, the
International Distribution Agreement, the Company's Shareholders' Agreement, the
Asset and Technology Transfer Agreement, with their respective exhibits,
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior or contemporaneous communications. In the
event of an inconsistency between this Agreement and the Company's Shareholders'
Agreement or Asset and Technology Transfer Agreement, the terms of this
Agreement shall control. Neither this Agreement nor any provisions hereof shall
be waived, modified, changed, discharged or terminated except by an instrument
in writing, signed by the party against whom any waiver, modification, change,
discharge or termination is sought. Except as expressly provided herein, neither
this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.
Except as expressly provided herein, no delay or omission to exercise any right,
power or remedy accruing to either party upon any breach or default of the other
party under this Agreement, shall impair any such right, power or remedy of such
party, nor shall it be construed to be a waiver of any such breach or default
theretofore or thereafter occurring.
15 Remedies. All remedies, either under this Agreement or by law or
otherwise afforded to the parties, shall be cumulative and not alternative.
16 Expenses. The Seller and the Purchaser shall each bear its own
expenses incurred on its behalf with respect to this Agreement and the
transactions contemplated hereby.
17 Non-Compete. Except as contemplated by the International Distribution
Agreement, the Seller hereby agrees to refrain from owning, operating, joining,
controlling, participating in, or being connected as a partner, stockholder or
otherwise with, any business or entity (other than the Company) which produces,
manufactures, markets or distributes thermoplastic or thermoset composites which
are based on the technology described in Exhibit 17(a) hereto, or produces,
manufactures, markets, or distributes any products in the markets in Exhibit
17(b) hereto, directly or indirectly through any person or entity Seller
controls, without the prior written consent of Purchaser, during the period
beginning with the date hereof and ending on the first anniversary of the
expiration of the International Distribution Agreement, or, if the International
Distribution Agreement is terminated earlier, ending as follows: (i) if such
earlier termination occurs during Year 1, then on the fifth anniversary of such
earlier termination, (ii) if such earlier termination occurs during the first
Subsequent Year (as defined in the International Distribution Agreement), then
on the fourth anniversary of such earlier termination, (iii) if such earlier
termination occurs during the second Subsequent Year, then on the third
anniversary of such earlier termination, and (iv) if such earlier termination
occurs during the third or later Subsequent Year, then on the second anniversary
of such earlier termination. Seller further acknowledges that Purchaser will
operate in global markets with respect to the business of producing
thermoplastic and thermoset composites, so that a geographic limitation to this
provision would create substantial injury to Purchaser. Seller believes that the
period of time and the area herein specified are reasonable in view of the
nature of the business in which Seller, the Company and Purchaser are engaged,
the state of Purchaser's and the Company's business development and Seller's
knowledge of the Company's and Purchaser's business. However if such period or
such area should be adjudged unreasonable in any judicial proceeding, then the
period of time shall be reduced by such number of months or such area shall be
reduced by elimination of such portion thereof, or both, as is deemed
unreasonable, so that this covenant may be enforced in such area and during such
period of time as are adjudged to be reasonable.
18 Modification of Shareholders Agreement.. The parties hereby agree
that Sections 1, 4 and 5 of the Company's Shareholders' Agreement shall be
terminated in their entirety by the signing of this Agreement and shall
hereinafter be of no further force and effect.
19 Modification of Asset and Technology Transfer Agreement. The parties
hereby agree to modify section 1.5 (iii) of the Asset and Technology Transfer
Agreement such that the final $500,000 payment shall be payable to BFC or its
shareholders if one of the following conditions is met; (a) the Seller purchases
the entire capacity of the Purchaser's plant or plants in Year 1 (as defined in
the International Distribution Agreement, as defined herein), in which case
payment will be made at the end of Year 1, or (b) the Seller purchases fifteen
million (15,000,000) pounds or more of Product (as defined herein) in Year 1, in
which case payment will be made when Purchaser has received payment with respect
to such purchases of fifteen million (15,000,000) pounds of Product.
For purposes of this Agreement, Product shall have the meaning set forth
in the International Distribution Agreement by and between the parties, dated
January 16, 2001, annexed hereto as Exhibit 1.3 (the "International Distribution
Agreement").
20 Board Resignation of the BFC Shareholders. Each of the BFC
Shareholders hereby agrees to submit to the Company an executed Board
Resignation prior to the Closing.
The foregoing agreement is hereby executed under seal as of the date
first written.
B&F COMPOSITES, INC. THERMO FIBERGEN INC.
A Canadian corporation A Delaware corporation
By: __________________ By:___________________________
Name: Name:
Title: Title:
BFC SHAREHOLDERS
Xxxxx X. Xxxxxxxx
Xxxxx Xxxxxxx
EXHIBIT 1.3
(International Distribution Agreement)
EXHIBIT 3
(Disclosure Schedule)
No exceptions to representations and warranties of the Seller on page 2
paragraph 3 of the agreement signed December 27th, 2000.
EXHIBIT 3.6
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Name Number of Shares Owned of the Company
------------------------------------------------ -----------------------------------------------
------------------------------------------------ -----------------------------------------------
BFC 490
------------------------------------------------ -----------------------------------------------
------------------------------------------------ -----------------------------------------------
Thermo Fibergen Inc. 510
------------------------------------------------ -----------------------------------------------
------------------------------------------------ -----------------------------------------------
------------------------------------------------ -----------------------------------------------
------------------------------------------------ -----------------------------------------------
Total: 1,000
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EXHIBIT 3.7
------------------------------------------------ -----------------------------------------------
Name Percentage of Shares Owned of BFC
------------------------------------------------ -----------------------------------------------
------------------------------------------------ -----------------------------------------------
Xxxxx X. Xxxxxxxx 50
------------------------------------------------ -----------------------------------------------
------------------------------------------------ -----------------------------------------------
Xxxxx Xxxxxxx 50
------------------------------------------------ -----------------------------------------------
------------------------------------------------ -----------------------------------------------
------------------------------------------------ -----------------------------------------------
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Total: 100
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EXHIBIT 5.3
TO: Board of Directors of NEXT Fiber Products Inc.
Effective upon the closing of the Stock Purchase Agreement, by and among Thermo
Fibergen Inc., B&F Composites, Inc., Xx. Xxxxx X. Xxxxxxxx and Xx. Xxxxx
Xxxxxxx, I, the undersigned, hereby resign from my position as a member of the
Board of Directors of NEXT Fiber Products Inc.
Dated: December 27, 2000 __________________________________
EXHIBIT 17(a)
Any formulation or product that contains
At least 10% by weight of a thermoplastic or thermoset resin
AND contains at least 5% by weight of a natural fiber
AND such material may be
- Extruded
- OR injection molded
- OR compression molded
- OR blow molded
EXHIBIT 17(b)
Construction products, including, but not limited to:
- Retaining walls
- Sound walls
- Fencing
- Decking
- Board walk
- Railing
- Docks
- Paving blocks
Building products, including, but not limited to:
- Siding
- Ceiling panels
- Bricks
- Roofing tiles
- Window frames
- Doors and door frames
Automotive parts
Amusement park constructions
Railroad ties
T-bars
Pallets
