EXHIBIT 10.64
ACT OF SALE OF COMMON STOCK OF
CYROPOLYMERS, INC.
"THE COMPANY"
THE AGREEMENT made as of the 18th day of November, 1997, by and between
Xxxxxx Griesheim Industries, Inc. (hereinafter referred to as the "Seller") and
XxxxxXxx Technologies, Inc. (hereinafter referred to as the "Purchaser").
I. RECITALS
1. There are presently 1,000 shares of issued and outstanding common
stock of the Company out of 10,000 shares authorized. There are presently no
treasury shares held by the Company.
2. The Seller is the owner of 475 shares of Common Stock ( or 47.5%) of
the issued and outstanding stock of Cryopolymers, Inc. ("the Shares") and is
entitled or may be entitled to the receipt of 35 additional shares of common
stock of the Company ("the Entitlement Shares"). Seller's entire interest in the
Company including the shares and the Entitlement Shares are collectively
referred to as "the Collective Shares."
3. The Seller desires to sell to Purchaser, and the Purchaser desires
to purchase the Collective Shares.
4. The Collective Shares represent 51% of the issued and outstanding
common stock of the Company.
5. The sale contemplated hereby is contingent upon Purchaser purchasing
a majority of the issued and outstanding shares of the Company.
II. AGREEMENTS
In consideration of the covenants, warranties, and mutual agreements
herein set forth, and in reliance upon the representation and warranties
contained herein, the parties do hereby agree as follows:
1. Sale. Subject to all the terms and conditions of this Agreement, the
Seller hereby sells, assigns, transfers, and delivers to Purchaser, and the
Purchaser hereby purchases the "Collective Shares" which represent 51% percent
of the issued and outstanding shares of the common stock of the Company on this
date. Seller represents to Purchaser that no stock certificates evidencing the
Collective Shares were received by Seller from the Company. The Seller
acknowledges that the Collective Shares represent all the shares of the Company
to which it was entitled and agrees to release the Company and Purchaser from
any and all claims for any shares of the Company other than the Collective
Shares.
2. Purchase Price. In consideration of the sale of Collective Shares,
and subject to the conditions hereafter set forth, Purchaser agrees to issue to
Seller shares of Common Stock, $.01 par value per share, of Purchaser (the
"Purchaser Shares"). The number of Purchaser Shares to be issued shall be an
amount equal to 100,000 shares plus a number of additional shares determined by
dividing $550,000 by the closing price of Purchaser's Common Stock as reported
by the NASDAQ Small-Cap Market in the Wall Street Journal on the last trading
day immediately prior to the day of the closing of this transaction (Act of
Sale). In the event that the number of Purchaser Shares calculated pursuant to
the forgoing formula results in a fractional share, the number of Purchaser
Shares to be issued to Seller shall be rounded to the next whole share. In
addition, the number of Purchaser Shares issuable to Seller shall be subject to
adjustment for events such as a reorganization, consolidation or merger of the
Purchaser, a stock
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split or stock dividend made by the Purchaser, or a similar event. Accordingly,
Seller shall be entitled to the same rights with respect to the Purchaser Shares
as granted to Purchaser in Sections 3, 4 and 5 of the Common Stock Purchase
Warrant of even date herewith issued by Purchaser to Seller.
Seller understands and agrees that a meeting of shareholders of
Purchaser is required to approve an increase in the number of shares of Common
Stock authorized under Purchaser's Certificate of Incorporation prior to
delivery of the Purchaser Shares. In the event that shareholder approval is not
obtained by Purchaser, Purchaser shall pay to Seller no later than April 1, 1998
the sum of $650,000.00 plus interest on said sum at the rate of eight percent
(8%) per annum (calculated from the date of this Act of Sale until the payment
date) in cash or in Common Stock of Purchaser, valued as in this paragraph.
Purchaser also agrees that it will register the Purchaser Shares under
the Securities Act of 1933, as amended, as soon as practicable after the
shareholders approve the amendment to the Company's Certificate of
Incorporation, provided however, that such registration shall only occur in
connection with the registration of other shares of Common Stock of Purchaser
that the Purchaser is required to register at the time.
3. Further Conditions of Sale.
A. In further consideration of the sale of the
Collective Shares, Seller agrees to provide
sufficient evidence of a release of the existing
nitrogen sales contract between Seller and the
Company to allow Purchaser to obtain competitive
bids. It is understood and agreed that Seller shall
have the right to match the lowest bona fide written
competitive offer received by Purchaser or the
Company for supply to the Company's St. Francisville
facility (the "Facility");
In the event that Seller is unable or unwilling to
match the lowest bona fide written competitive offer
received by Purchaser or the Company for gas sales to
the Facility, the parties understand and agree that
Seller may
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remove at is expense equipment owned by Seller that
is located at the Facility. A list of Seller's
equipment is attached hereto as Exhibit A.
B. Purchaser and Seller hereby agree to release and
fully acquit one another from any and all claims in
any way involving the Facility, known and unknown,
anticipated or unanticipated, pursuant to the terms
and conditions of Agreement of Settlement and Release
attached hereto as Exhibit B;
C. Purchaser grants Seller a warrant to purchase up to
1,200,000 shares of Common Stock of the Purchaser
pursuant to the terms and conditions of the Common
Stock Purchase Warrant attached hereto as Exhibit C;
D. Purchaser agrees to indemnify, defend and hold
harmless Seller from any and all liabilities
attendant to Seller's ownership of the Collective
Shares herein conveyed antedating this Act of Sale
with the exception of any and all accounts payable
owed by the Company as of the closing date to third
parties (other than Cryopolymers Leasing, Inc.),
vendors and taxing authorities all of which are
listed on Exhibit D attached hereto. It is expressly
agreed and understood that at closing, Seller shall
promptly pay all accounts payable of the Company
listed on Exhibit D to said parties and taxing
authorities.
E. Seller shall on or before the Closing release all
security interests in assets owned by the Company,
attached hereto as Exhibit E;
F. On or before the Closing, Seller shall forgive any
and all other obligations owed it by the Company or
which may be owed by the Company;
G. Seller agrees to indemnify and hold harmless
Purchaser and the Company from any obligations the
Company has or may have to Xxxxxx Haselmeir. Said
indemnity applies to all costs of defense and/or to
any payments made compulsorily or by agreement to
Haselmeir. Seller also agrees to indemnify Purchaser
for any breach of Seller's representations made under
paragraph 3 hereof.
4. Arbitration. any and all claims or controversies arising out of this
Agreement shall be submitted to and settled by binding arbitration in Louisiana
in accordance with the commercial rules of the American Arbitration Association
then in effect, and judgement upon the award rendered in such arbitration may be
entered in any court having jurisdiction over the claim or controversy.
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5. Seller's Representations
A. Seller has good and marketable title to the
Collective Shares. The Collective Shares on the
Closing Date will be free and clear of any and all
covenants, conditions, restrictions, voting trust
arrangements, liens, charges, encumbrances, options
and adverse claims or rights whatsoever.
B. The Seller the full right, power and authority to
enter into this Act of Sale and to transfer and
convey to Purchaser the Collective Shares to be
surrendered and conveyed by the Seller hereunder and,
upon the surrendering thereof for cancellation,
Purchaser will acquire from the Seller good and
marketable title to the Collective Shares, free and
clear of all covenants, conditions, restrictions,
voting trust arrangements, liens, charges,
encumbrances, options and adverse claims or rights
whatsoever.
C. As of the Closing, the Seller shall not be a party
to, subject to or bound by any agreement or any
judgment, order, writ, prohibition, injunction or
decree of any court or other governmental body which
would prevent the execution or delivery of this Act
of Sale by the Seller or the transfer, conveyance and
surrender of the Collective Shares to be surrendered
by the Seller to Purchaser pursuant to the terms
hereof.
D. No broker or finder has acted for the Seller in
connection with this agreement or the transactions
contemplated hereby, and no broker or finder is
entitled to any brokerage or finder's fee or other
commissions in respect of such transactions based
upon agreements, arrangements or understandings made
by or on behalf of the Seller.
E. The Seller understands that the Purchaser Shares
being acquired by it have not been registered under
the Securities Act of 1933, as amended, or any state
securities laws and is being offered and sold in
reliance upon federal and state exemptions for
transactions not involving any public offering. The
Seller represents that it has had a full opportunity
to request from Purchaser and to review and has
received all information which it deems relevant in
making a decision to acquire the Purchaser Shares.
6. Access and Information. The Seller has caused the Company to give to
Purchaser and to Purchaser's attorney, accountants, and other representatives
full access, during normal business hours throughout the period prior to the
date first above written, to all of the Company's properties, books, contracts,
commitments, and records, and has furnished and will continue to
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furnish such information concerning the Company's affairs as Purchaser has or
may reasonably request.
7. Purchase of Interest in business. The Purchaser represents that its
purchase hereunder is being made for its own account, and with no present
intention of resale. The parties hereto intend that the purchase of stock
evidenced is actually the purchase of an interest of the business conducted by
the Company.
IN WITNESS WHEREOF, the parties have duly executed this Agreement.
SELLER:
XXXXXX GRIESHEIM INDUSTRIES, INC.
By:
XXX XXXXX, PRESIDENT
DATE:
PURCHASER:
XXXXXXXX TECHNOLOGIES, INC.
By:
XXXXXX XXXXX, CEO
DATE: 11/18/97
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