Stock Acquisition Agreement
Exhibit
2
By
and between
and
Integrated
Environmental Technologies, Ltd.
1. Purchase
of IEVM Shares. Benchmark Performance Group, Inc.,
(“Benchmark”) hereby agrees to acquire, pursuant to the further terms and
provisions of this Stock Acquisition Agreement, including each of its
Exhibits (hereinafter collectively the “Acquisition Agreement”) Thirty-Five Million
(35,000,000) shares (the “Shares”) of the common stock, par value $0.001, of
Integrated Environmental Technologies, Ltd., a Delaware corporation with a
principal place of business at 0000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxx
Xxxxxxxx 00000 (“IEVM”). This Acquisition Agreements constitutes a definitive,
binding agreement for the acquisition of the Shares by Benchmark, and supersedes
all prior agreements with respect thereto, including, but not limited to, that
certain May 22, 2007, Term Sheet for Stock Acquisition and Exclusive License and
Distributorship Agreement between Integrated Environmental Technologies, Ltd./
I.E.T., Inc. and Benchmark Performance Group, Inc.
2. Share Purchase
Price. The aggregate purchase price payable for the Shares
shall be Three Million Five Hundred Thousand USD ($3,500,000) (the “Purchase
Price”) ($0.10 per Share).
3. Payment
of Share Purchase Price. The Purchase Price will be paid (and
the Shares will be issued) according to the following installment
schedule:
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(a)
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First
Installment. Three Hundred Twelve Thousand Dollars
($312,000) heretofore paid by Benchmark to IEVM, via wire transfer, for
the purchase of 6 EcaFlo® Model C-104 units shall be converted to an
equity investment and applied to the Purchase
Price.
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(b)
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Second
Installment. Within three (3) business days of its
execution of this Acquisition Agreement, Benchmark will pay and contribute
to IEVM, via wire transfer, One Hundred Eighty-Eight Thousand Dollars
($188,000) (the “Second Installment”). Promptly upon its
receipt of the Second Installment, IEVM will (i) issue to Benchmark a
stock certificate for 5,000,000 shares of IEVM common stock, and (ii)
cause E. Xxxxx Xxxxxx and Xxxxx X. Xxxxx to be elected to the IEVM Board
of Directors, as described in section 8
below.
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(c)
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Third
Installment. On or before October 31, 2007, Benchmark
will pay and contribute to IEVM, via wire transfer, Five Hundred Thousand
Dollars ($500,000) (the “Third Installment”). Promptly upon its
receipt of the Third Installment, IEVM will (i) issue to Benchmark a stock
certificate for an additional 5,000,000 shares of IEVM common stock, and
(ii) initiate (pursuant to the terms of section 5 below and the
Registration Rights Agreement referenced therein) a registration of the
10,000,000 Shares theretofore issued to
Benchmark.
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(d)
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Fourth
Installment. On or before April 30, 2008, Benchmark will
pay and contribute to IEVM, via wire transfer, Five Hundred Thousand
Dollars ($500,000) (the “Fourth Installment”). Promptly upon
its receipt of the Fourth Installment, IEVM will issue to Benchmark a
stock certificate for an additional 5,000,000 shares of IEVM common
stock.
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(e)
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Fifth
Installment. On or before October 31, 2008, Benchmark
will pay and contribute to IEVM, via wire transfer, Five Hundred Thousand
Dollars ($500,000) (the “Fifth Installment”). Promptly upon its
receipt of the Fifth Installment, IEVM will (i) issue to Benchmark a stock
certificate for an additional 5,000,000 shares of IEVM common stock, and
(ii) initiate (pursuant to the terms of section 5 below and the
Registration Rights Agreement referenced therein) a registration of the
10,000,000 Shares issued to Benchmark following its payment of the Fourth
and Fifth Installments.
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(f)
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Sixth
Installment. On or before April 30, 2009, Benchmark will
pay and contribute to IEVM, via wire transfer, Five Hundred Thousand
Dollars ($500,000) (the “Sixth Installment”). Promptly upon its
receipt of the Sixth Installment, IEVM will issue to Benchmark a stock
certificate for an additional 5,000,000 shares of IEVM common
stock.
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(g)
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Seventh
Installment. On or before October 31, 2009, Benchmark
will pay and contribute to IEVM, via wire transfer, One Million Dollars
($1,000,000) (the “Seventh Installment”). Promptly upon its
receipt of the Seventh Installment, IEVM will (i) issue to Benchmark a
stock certificate for an additional 10,000,000 shares of IEVM common
stock, and (ii) initiate (pursuant to the terms of section 5 below and the
Registration Rights Agreement referenced therein) a registration of the
15,000,000 Shares issued to Benchmark following its payment of the Sixth
and Seventh Installments.
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4. Stock
Subscription Agreements. Benchmark will
execute and deliver to IEVM a Stock Subscription Agreement, substantially in the
form of Exhibit
I attached hereto, with respect to each issuance of Shares to it
following the Second, Third, Fourth, Fifth, Sixth and Seventh Installment
payments.
5. Registration
Rights. Subject to the
further terms and provision of a Registration Rights Agreement, substantially in
the form of Exhibit
II attached hereto, to be executed by the parties in conjunction with the
Shares to be issued to Benchmark (and covering, in each instance, all
unregistered Shares theretofore issued to Benchmark):
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(a)
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Demand
Rights: If at any time Benchmark requests that IEVM file
a Registration Statement for the Shares issued to it as of the date of the
request, IEVM will use its best efforts to cause such Shares to be
registered. IEVM will not be obligated to affect more than
three (3) registrations under these demand right
provisions.
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(b)
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Registration
Expenses: The registration expenses (exclusive of
underwriting discounts and commissions or expenses relating to special
counsel for a selling shareholder) of three (3) demand registrations will
be borne by IEVM.
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(c)
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Transfer of
Registration Rights: The registration rights may be
transferred to a transferee who acquires at least 50% of the Shares issued
to Benchmark.
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6. Anti-Dilution
Period. IEVM agrees that throughout the period commencing with
the Closing Date and ending October 31, 2009 (the “Anti-dilution Period”),
Benchmark shall have the right and ability (and IEVM shall take such actions as
shall be necessary to ensure that Benchmark has the right and ability) to
maintain an equity position in IEVM equal to the equity position it would own
upon the issuance of Shares to it following payment of the Seventh Installment
if, between the date of Closing and the date of such payment and issuance of
Shares, IEVM were to issue no additional shares of its common stock
(approximately 40.61%) to any other party.
For the
purposes of effecting the foregoing provisions of this section 6, and without
limiting the generality thereof, if at any time during the Anti-dilution Period,
IEVM shall:
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(a)
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issue
any shares of its common stock (other than the Shares to be issued to
Benchmark pursuant to this Acquisition Agreement) or any note, debenture,
or other evidence of indebtedness, or any option, right, warrant or other
instrument or security convertible into or exchangeable for shares of its
common stock;
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(b)
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declare
a dividend on the common stock of the corporation payable in the common
stock of the corporation;
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(c)
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subdivide
or split the outstanding shares of common stock of the
corporation;
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(d)
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authorize
and issue any new class or series of equity securities or any note,
debenture, or other evidence of indebtedness, or any option, right,
warrant or other instrument or security convertible into or exchangeable
for shares of such other class or series);
or
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(e)
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issue
any shares of its common stock to any holder, transferee or assignee of a
currently outstanding note, debenture, or other evidence of indebtedness,
or any option, right, warrant or other instrument or security convertible
into or exchangeable for shares of IEVM’s common stock upon the holder’s
exercise of its conversion or exchange rights thereunder, other than shares of
common stock issued pursuant to any option heretofore granted to any
officer, director or employee of
IET.
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(any of
the foregoing being a “Warrant Right Event”), then IEVM shall issue to Benchmark
a warrant entitling it to purchase, at $0.10 per share, such additional number
of shares of IEVM’s common stock as would, upon exercise, make Benchmark the
holder of the same total percentage of all outstanding IEVM equity securities as
it held prior to the Warrant Right Event. Any such warrant(s) shall
be exercisable by Benchmark at any time through and including October 31,
2009. The parties shall execute in conjunction with any warrant(s)
issued to Benchmark upon a Warrant Right Event a Registration Rights Agreement,
substantially in the form of Exhibit II attached
hereto, entitling Benchmark to require that IEVM seek registration, at its
expense, of the shares issuable to Benchmark upon exercise of the
warrant. Notwithstanding the foregoing, IEVM shall not be obligated
to affect more than two (2) registrations under these demand right
provisions.
7. Option to
Purchase Additional Control Shares. In addition to the Shares to
be purchased by Benchmark hereunder, IEVM hereby grants Benchmark the right and
option to purchase such additional number of shares of IEVM’s common stock as
shall, at the time of issuance, make Benchmark the holder of 51% of IEVM’s total
outstanding equity securities (the “Control Share Option”). Such
Control Share Option shall be exercisable at any time through and including
October 31, 2009, and the per share price payable for the shares purchased
pursuant thereto shall be the weighted average per share price of IEVM’s common
stock over the 22 trading
days prior to the date IEVM receives written notice from Benchmark that it
intends to exercise its option, based upon the closing prices and trades posted
on the Over-The-Counter Bulletin Board (xxxxx.xxx), plus a 15% per share control
premium. The parties shall execute in conjunction with the shares
issued to Benchmark upon exercise of its Control Share Option a Registration
Rights Agreement, substantially in the form of Exhibit II attached
hereto, entitling Benchmark to require that IEVM seek registration, at its
expense, of the shares issuable to Benchmark upon exercise of the Control Share
Option.
8. Board
Representation.
Within three (3) business days of its receipt of the Second Installment
of the Purchase Price, IEVM will convene a meeting of its Board of Directors and
take such action (including, if necessary, increasing the number of directors
constituting IEVM’s Board of Directors) to elect E. Xxxxx Xxxxxx and Xxxxx X.
Xxxxx as directors of IEVM.
9. Announcements
and Press Releases. The announcement of Benchmark’s
acquisition of the Shares will be coordinated between the parties so as to meet
Securities Exchange Commission rules and regulations and for mutual public
relations benefits to both parties. The Parties will consult with
each other prior to issuing any press release or other public statement
regarding the proposed transaction. It is strictly understood by the
parties that the information contained herein is confidential in nature and that
no such public disclosure shall be made by either party of the information or
the intended transaction until Closing.
10. Exclusive
License and Distributorship Agreement. The parties agree
to execute an Exclusive License and Distributorship Agreement, substantially in
the form of Exhibit
III attached hereto.
11. Due
Diligence. IEVM has provided Benchmark and its representatives
with reasonable access to IEVM, and all information it and they have reasonably
requested.
12. Representations
and Warranties of IEVM. In addition to the representations and
warranties made by it elsewhere in this Acquisition Agreement, IEVM makes the
following representations and warranties to Benchmark. For purposes
of these representations and warranties, the phrase “to IEVM’s knowledge” shall
mean the actual knowledge after reasonable investigation of Xxxxxxx X. Xxxxxx
and Xxxxxx X. Xxxxxxx; the term “Material Adverse Effect” means a material
adverse effect on the business, assets (including intangible assets),
liabilities, financial condition, property, prospects or
results of operations of IEVM, and the term “SEC Filings” means any and all
Securities and Exchange Commission (“SEC”) filings required of IEVM under the
Securities Exchange Act of 1934 (as amended).
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(a)
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IEVM
is duly organized and validly existing under the laws of the State of
Delaware and has all requisite corporate power and authority to own and
hold its respective properties and conduct the business in which it is
engaged; holds all material licenses, permits and other authorizations
from governmental authorities needed to conduct its
business.
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(b)
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IEVM’s
common stock is publicly traded on the Over-The-Counter Bulletin Board
(OTC:BB) under the symbol “IEVM”. As of May 8, 2007 IEVM had
200,000,000 shares of authorized common stock, 51,185,383 shares of which
were issued and outstanding (See Shareholder’s List of May 8, 2007,
attached hereto as Exhibit
IV). All of the outstanding shares of IEVM are duly
authorized and validly issued, fully paid and
nonassessable. IEVM has no authorized stock of any other class
or series, but has authorized and issued various convertible notes,
convertible debentures, warrants and options to acquire its common stock,
as reflected in IEVM’s Form 10QSB filing for the period March 31, 2007
(filed with the Securities and Exchange Commission May 21,
2007). Since the filing of that 10QSB, IEVM has not authorized
or issued any other convertible notes, debentures warrants, options or
other rights or securities convertible into shares of its common stock
which, upon conversion or exercise, would reduce to less than 40% the
percentage of IET’s common stock which Benchmark would own upon the
issuance of Shares to it following payment of the Seventh
Installment.
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(c)
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Other
than I.E.T., Inc., a Nevada corporation (“IET”), IEVM does not currently
own or control, directly or indirectly, any interest in any other
corporation, partnership, trust, joint venture, limited liability company,
association, or other business entity and is not a participant in any
joint venture, partnership or similar arrangement. IET is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation and has all requisite power and authority to
carry on its business as presently conducted and for continued operation
of its business after closing consistent with past
practice. IET is duly qualified to transact business and is in
good standing in each jurisdiction in which the failure to so qualify
would have a Material Adverse Effect on IET. IEVM owns directly
or indirectly 100% of the equity interests of
IET.
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(d)
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All
corporate action required to be taken by IEVM’s Board of Directors in
order to authorize IEVM to enter into this Acquisition Agreement
(including each of its Exhibits), and to issue the Shares has been taken
or will be taken prior to the Closing. All action on the part
of the officers of IEVM necessary for the execution and delivery of the
Transaction Agreements, the performance of all obligations of IEVM under
the Transaction Agreements to be performed as of the Closing, and the
issuance and delivery of the Shares and the Note has been taken or will be
taken prior to the Closing. The Transaction Agreements, when
executed and delivered by IEVM, shall constitute valid and legally binding
obligations of IEVM, enforceable against IEVM in accordance with their
respective terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, or other
laws of general application relating to or affecting the enforcement of
creditors’ rights generally, or (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other
equitable remedies. No corporate action is required to be taken
by IEVM’s Shareholders in order to authorize IEVM to enter into this
Acquisition Agreement (including each of its Exhibits) and to issue the
Shares.
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(e)
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The
Shares, when issued, sold and delivered in accordance with the terms and
for the consideration set forth in this Acquisition Agreement, will be
validly issued, fully paid and nonassessable and free of restrictions on
transfer other than restrictions on transfer under this Acquisition
Agreement or applicable state and federal securities
laws. Assuming the accuracy of the representations of Benchmark
in the Subscription Agreement, the Shares will be issued in compliance
with all applicable federal and state securities
laws.
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(f)
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No
consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any federal, state
or local governmental authority is required on the part of IEVM in
connection with the consummation of the transactions contemplated by this
Acquisition Agreement.
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(g)
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There
is no claim, action, suit, proceeding, arbitration, complaint, charge or
investigation pending or, to IEVM’s knowledge, currently threatened (i)
against IEVM or IET, or (ii) against any of IEVM’s or IET’s respective
officers, directors or key employees relating to their actions on behalf
of IEVM or IET; or (iii) that questions the validity of this Acquisition
Agreement or the right of IEVM to enter into it, or to consummate the
transactions contemplated by the Acquisition Agreement; or (iv) that would
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect. Neither IEVM nor any Subsidiary, is a
party or is named as subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or
instrumentality. To IEVM’s knowledge, none of IEVM’s or IET’s
respective officers or directors, is a party or is named as subject to the
provisions of any order, writ, injunction, judgment or decree of any court
or government agency or instrumentality with respect to the affairs of
IEVM or IET. There is no action, suit, proceeding or
investigation by or naming IEVM or IET pending or which IEVM or IET
intends to initiate. The foregoing includes, without
limitation, actions, suits, proceedings or investigations pending or
threatened in writing (or any basis therefor known to IEVM) involving the
prior employment of any of IEVM’s or IET’s employees, their services
provided in connection with IEVM’s or IET’s business, or any information
or techniques allegedly proprietary to any of their former employers, or
their obligations under any agreements with prior
employers.
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(h)
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IEVM
and IET each owns or possesses sufficient legal rights to (i) all
trademarks, service marks, tradenames, copyrights, trade secrets,
licenses, information and proprietary rights and processes and (ii) all
patents and patent rights, (such rights are collectively referred to
herein as the “Company
Intellectual Property”) as are necessary to the conduct of the
IEVM’s and IET’s business as now conducted and to continue its business
after Closing consistent with past practice, without any known
conflict with, or infringement of, the rights of others. To
IEVM’s knowledge, no product or service marketed or sold by IEVM or IET
violates or will violate any license or infringe any intellectual property
rights of any other party. Other than with respect to
commercially available software products under standard end-user object
code license agreements, there are no outstanding options, licenses,
agreements, claims, encumbrances or shared ownership interests of any kind
relating to the foregoing, nor is IEVM or IET bound by or a party to any
options, licenses or agreements of any kind with respect to the patents,
trademarks, service marks, trade names, copyrights, trade secrets,
licenses, information, proprietary rights and processes of any other
Person. Neither IEVM nor IET has received any communications
alleging that it has violated or, by conducting its business, would
violate any of the patents, trademarks, service marks, tradenames,
copyrights, trade secrets or other proprietary rights or processes of any
other Person. To IEVM’s knowledge, it will not be necessary to
use any inventions of any of its employees (or Persons it currently
intends to hire) made prior to their employment by IEVM or
IET. Each key employee has assigned to IEVM or IET all
intellectual property rights he or she owns that are related to IEVM’s or
IET’s business as now
conducted.
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(i)
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Except
as noted or reflected in its SEC Filings, each of IEVM and IET is not in
violation or default (i) of any provisions of its Articles or Bylaws, (ii)
of any judgment, order, writ or decree, (iii) under any note, indenture,
mortgage, or other instrument, (iv) under any lease, agreement, contract
or purchase order to which it is a party or by which it is bound, or (v) of any
provision of federal or state statute, rule or regulation applicable to
IEVM or IET, the violation of which would have a Material Adverse Effect
on IEVM or IET. The execution, delivery and performance of the
Acquisition Agreement and the consummation of the transactions
contemplated thereby 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, either (i) a default under any such provision, judgment,
order, writ, decree, contract or agreement or (ii) an event which results
in the creation of any lien, charge or encumbrance upon any assets of IEVM
or IET or the suspension, revocation, forfeiture, or nonrenewal of any
material permit or license applicable to IEVM or
IET.
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(j)
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Except
as noted or reflected in its SEC Filings, the property and assets IEVM and
IET owns are free and clear of all mortgages, deeds of trust, liens, loans
and encumbrances, except for statutory liens for the payment of current
taxes that are not yet delinquent and encumbrances and liens that arise in
the ordinary course of business and do not materially impair IEVM’s or
IET’s respective ownership or use of such property or
assets. Except as noted or reflected in its SEC Filings, with
respect to the property and assets it leases, IEVM and IET are in
compliance with such leases and, to IEVM’s knowledge, holds a valid
leasehold interest free of any liens, claims or encumbrances other than
those of the lessors of such property or
assets.
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(k)
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IEVM’s
financial statements have been audited concurrent with its annual 10-KSB
filing with the SEC for the period December 31, 2006 (filed April 17,
2007). A copy of IEVM’s 2006 10-KSB Financial Statements is
attached as Exhibit
V. The Financial Statements have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
indicated. Except as noted or reflected in its Form 10QSB
filing for the period March 31, 2007 (filed with the SEC May 21, 2007), no
events have occurred subsequent to December 31, 2006 that would require
adjustment to or disclosure in any of the Financial
Statements. The Financial Statements fairly present in all
material respects the consolidated financial condition and operating
results of IEVM and IET as of the dates, and for the periods indicated
therein. Except as set forth in the Financial Statements or as
noted or reflected in its Form 10QSB filing for the period March 31, 2007,
each of IEVM and IET, individually and in the aggregate, has no material
unrecorded liabilities or obligations, contingent or otherwise, other than
liabilities incurred in the ordinary course of business subsequent to
March 31, 2007. There are no uncorrected financial statement
misstatements that are material, individually or in the aggregate, to the
Financial Statements. IEVM maintains and will continue to
maintain a standard system of accounting established and administered in
accordance with GAAP.
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(l)
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All
of IEVM’s SEC Filings are
current.
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(m)
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Since
the date of IEVM’s Form 10QSB filing for the period March 31, 2007, there has not
been:
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(i)
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any
change in the assets, liabilities, financial condition or operating
results of IEVM or IET from that reflected in the Financial Statements,
except changes in the ordinary course of business that have not caused, in
the aggregate, a Material Adverse
Effect;
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(ii)
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any
damage, destruction or loss, whether or not covered by insurance, that
would have a Material Adverse
Effect;
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(iii)
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any
waiver or compromise by IEVM or IET of a valuable right or of a material
debt owed to it;
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(iv)
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any
satisfaction or discharge of any lien, claim, or encumbrance or payment of
any obligation, except in the ordinary course of business and the
satisfaction or discharge of which would not have a Material Adverse
Effect;
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(v)
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any
material change to a material contract or agreement by which IEVM or IET
or any of their assets is bound or
subject;
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(vi)
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any
resignation or termination of employment of any officer or key employee of
IEVM or IET;
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(viii)
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any
mortgage, pledge, transfer of a security interest in, or lien, created by
the Company or any Subsidiary, with respect to any of its material
properties or assets, except liens for taxes not yet due or payable and
liens that arise in the ordinary course of business and do not materially
impair the Company’s or any Subsidiary’s ownership or use of such property
or assets;
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(ix)
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any
loans or guarantees made by IEVM or IET to or for the benefit of its
employees, officers or directors, or any members of their immediate
families, other than travel advances and other advances made in the
ordinary course of its business;
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(x)
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any
declaration, setting aside or payment or other distribution in respect of
any of IEVM’s capital stock, or any direct or indirect redemption,
purchase, or other acquisition of any of such stock by
IEVM;
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(xi)
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any
sale, assignment or transfer of any Company Intellectual Property that
could reasonably be expected to result in a Material Adverse
Effect;
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(xii)
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receipt
of notice that there has been a loss of, or material order cancellation
by, any major customer;
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(xiii)
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to
IEVM’s knowledge, any other event or condition of any character, other
than events affecting the economy or IEVM’s industry generally, that could
reasonably be expected to result in a Material Adverse;
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(xiv)
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any
arrangement or commitment by IEVM or IET to do any of the things described
in this subsection (m).
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(n)
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With
respect to the employees of IEVM and
IET:
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Stock
Acquisition Agreement
June 20,
2007
9 of
13
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(i)
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To
IEVM’s knowledge, none of its or IET’s employees is obligated under any
contract (including licenses, covenants or commitments of any nature) or
other agreement, or subject to any judgment, decree or order of any court
or administrative agency, that would materially interfere with such
employee’s ability to promote the interest of IEVM or that would conflict
with its or IET’s business.
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(ii)
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Except
as reflected in its Form 10QSB filing for the period March 31, 2007, IEVM
is not delinquent in payments to any of its employees, consultants, or
independent contractors for any wages, salaries, commissions, bonuses, or
other direct compensation for any service performed for it to the date
hereof or amounts required to be reimbursed to such employees,
consultants, or independent contractors. Each of IEVM and IET
have complied with all applicable state and federal equal employment
opportunity laws and with other laws related to employment, including
those related to wages, hours, worker classification, collective
bargaining, and the payment and withholding of taxes and other sums as
required by law except where noncompliance with any applicable law would
not result in a Material Adverse Effect. Each of IEVM and IET
have withheld and paid to the appropriate governmental entity or is
holding for payment not yet due to such governmental entity all amounts
required to be withheld from their employees and is not liable for any
arrears of wages, taxes, penalties, or other sums for failure to comply
with any of the foregoing.
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(iii)
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To
IEVM’s knowledge, no key employee intends to terminate employment with
IEVM or IET or is otherwise likely to become unavailable to continue as a
key employee, nor does IEVM or IET have a present intention to terminate
the employment of any of the
foregoing.
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(iv)
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No
former employee whose employment was terminated by IEVM or IET has
asserted or to IEVM’s knowledge threatened to assert any claims against
IEVM or IET or any related party arising out of such employment, and to
IEVM’s knowledge no facts exists which would be reasonably likely to
result in such claims.
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(o)
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There
are no federal, state, county, local or foreign taxes dues and payable by
IEVM or IET which have not been timely paid. There are no
accrued and unpaid federal, state, country, local or foreign taxes of IEVM
or IET which are due, whether or not assessed or
disputed. There have been no examinations or audits of any tax
returns or reports by any applicable federal, state, local or foreign
governmental agency. IEVM and IET have duly and timely filed
all federal, state, county, local and foreign tax returns required to have
been filed by it and there are in effect no waivers of applicable statutes
of limitations with respect to taxes for any
year.
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Stock
Acquisition Agreement
June 20,
2007
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13
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(p)
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Each
of IEVM and IET has all franchises, permits, licenses and any similar
authority necessary for the conduct of its business, the lack of which
could reasonably be expected to have a Material Adverse
Effect. Neither IEVM nor IET is in default in any material
respect under any of such franchises, permits, licenses or other similar
authority.
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(q)
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Except
as could not reasonably be expected to have a Material Adverse Effect each
of IEVM and IET is and has been in compliance with all Environmental Laws,
and to the Company’s knowledge, there has been no release or threatened
release of any Hazardous Substance on, upon, into or
from any site currently or heretofore owned, leased or otherwise used by
IEVM or IET. Except as could not reasonably be expected to have
a Material Adverse Effect, there have been no Hazardous Substances
generated by IEVM or IET that have been disposed of or come to rest at any
site that has been included in any published U.S. federal, state or local
“superfund” site list or any other similar list of hazardous or toxic
waste sites published by any governmental authority in the United
States. To IEVM’s knowledge, there are no underground storage
tanks located on, no polychlorinated biphenyls (“PCBs”) or PCB-containing
equipment used or stored on, and no hazardous waste as defined by the
Resource Conservation and Recovery Act, as amended, stored on, any site
owned or operated by IEVM or
IET.
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For
purposes of this subsection (q) “Environmental Laws” means any law, regulation,
or other applicable requirement relating to (a) releases or threatened release
of Hazardous Substance; (b) pollution or protection of employee health or
safety, public health or the environment; or (c) the manufacture, handling,
transport, use, treatment, storage, or disposal of Hazardous Substances, and the
term the term “Hazardous Substance” shall mean and include “hazardous
substances” or “pollutants or contaminants” as defined pursuant to CERCLA,
“regulated substances” within the meaning of Subtitle I of the Resource
Conservation and Liability Act, as amended, hazardous substances as defined
under any applicable state or local Environmental Laws, petroleum or petroleum
products, and any other substance considered toxic, hazardous or a potential
threat to human health or the environment under any applicable Environmental
Law, the presence of which has resulted or may result in (i) an environmental
lien, or (ii) a party incurring costs or liabilities, or (iii) a party being
ordered or directed to investigate, remediate or otherwise respond to a
potential environmental threat posed by such substances.
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(r)
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No
representation or warranty contained in this Acquisition Agreement or any
other agreement or instrument furnished by IEVM pursuant to this
Acquisition Agreement, and no statement contained in any document,
certificate or schedule furnished or to be furnished by or on behalf of
IEVM to Benchmark or any of its representatives pursuant hereto, contains
or will contain any untrue statement of a material fact, or omits or will
omit to state any material fact necessary, in light of the circumstances
under which it was or will be made, in order to make the statements herein
or therein not misleading or necessary in order to fully and fairly
provide the information required to be provided in any such document,
certificate or schedule or in order to comply with applicable
law. There is no fact relating to IEVM or IET that IEVM has
failed to disclose to Benchmark in writing that has or could reasonably be
expected to result in a Material Adverse
Effect.
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Acquisition Agreement
June 20,
2007
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13. Representations
and Warranties of Benchmark. In addition to the
representations and warranties made by it elsewhere in this Acquisition
Agreement, Benchmark makes the following representations and warranties to
IEVM.
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(a)
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Benchmark
is duly organized and validly existing under the laws of the State of
Texas and has all requisite corporate power and authority to own and hold
its respective properties and conduct the business in which it is engaged;
holds all material licenses, permits and other authorizations from
governmental authorities needed to conduct its
business.
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(b)
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Benchmark
has good and marketable title to all of its assets, and title is valid and
proper.
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(c)
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To
the extent required, Benchmark’s Board of Directors has authorized
Benchmark to enter into this Acquisition
Agreement.
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14. Closing. Closing shall
occur at each party’s individual office location as the parties agree (the
“Closing Date”); however in no event shall such the Closing Date be later than
June 20, 2007.
15. Disclosure. Benchmark
and IEVM agree and have taken all reasonable precautions to prevent any trading
in IEVM securities by their respective officers, directors, employees,
affiliates, agents or others having knowledge of the proposed Share acquisition
until the proposed acquisition has been closed. The parties
understand and agree that until a press release is issued, if ever, or other
public disclosure has been made by IEVM, neither party will disclose the fact
that this Acquisition Agreement is being executed, except to professional
advisors, employees and consultants of Benchmark and IEVM on a need-to know
basis.
16. Exclusive
Negotiations. IEVM has agreed and upheld its agreement that,
until such time as this Share acquisition has been consummated, it has not
permitted any of its management or agents or representatives to solicit,
initiate or encourage inquiries or proposals, or provide any information or
participate in any negotiations leading to any proposal concerning any
acquisition or purchase of all or any substantial portion of the assets or
shares of IEVM or any acquisition or consolidation of IEVM with any third party
or any similar transaction involving control, and/or ownership.
17. Fees and
Expenses. All fees and expenses incurred in connection with
the Acquisition and the transactions contemplated hereby shall be paid by the
party incurring such fees and expenses.
Stock
Acquisition Agreement
June 20,
2007
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Integrated
Environmental Technologies, Ltd., a Delaware corporation
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By:
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Xxxxxxx
X. Xxxxxx, President and Chief Executive Officer
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Dated:
June _______, 2007.
Benchmark
Performance Group, Inc. a Texas corporation
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By:
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Xxxxx
Xxxxxx, President and Chief Executive Officer
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Dated:
June _______, 2007.
Attachments:
Subscription
Agreement (Exhibit I)
Registration
Rights Agreement (Exhibit II)
Exclusive
License and Distributorship Agreement (Exhibit III)
Confidential
IEVM Shareholder’s List of May 8, 2007 (Exhibit IV)
IEVM’s
2006 10-KSB Financial Statements (Exhibit V)
Stock
Acquisition Agreement
June 20,
2007
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13
