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EXHIBIT 10.8
STOCK PURCHASE AGREEMENT
This Agreement is made and entered into on this 30th day of September,
1996, by and between American Physicians Service Group, Inc., a Texas
corporation (the "Buyer"), and Exsorbet Industries, Inc., an Idaho corporation
(the "Seller").
In consideration of the premises and the mutual promises herein made,
and in consideration of the representations, warranties, and covenants herein
contained, the Parties agree as follows:
1. Definitions.
"Exsorbet" and "Exsorbet Industries, Inc." refer to that certain
entity which is incorporated under the laws of the State of Idaho under the
name "Exsorbet Industries, Inc." as well as any successor corporation.
"Shareholder Rights Agreement"means an Agreement by and between
American Physicians Service Group, Inc. and Exsorbet Industries, Inc. dated
September 30, 1996 and entitled "Shareholder Rights Agreement."
"Stock Put Agreement"means an Agreement by and between American
Physicians Service Group, Inc. and Exsorbet Industries, Inc. dated September
30, 1996, and entitled "Stock Put Agreement."
2. Purchase and Sale of 1,200,000 Shares of Common Stock.
(a) Basic Transaction. On and subject to the terms and conditions of
this Agreement, and further subject to the terms of the Stock Put Agreement and
Shareholder Rights Agreement, Buyer agrees to, and does hereby, purchase from
Seller One Million Two Hundred Thousand (1,200,000) shares of common (capital)
stock of Exsorbet Industries, Inc. at the price of Two Dollars and Seventy-Five
Cents ($2.75) per share.
(b) Delivery of Share Certificate. Buyer acknowledges receipt of a
certificate evidencing 1,200,000 shares of common stock of Exsorbet Industries,
Inc., such certificate being issued in the name of "American Physicians Service
Group, Inc."
(c) Payment. Seller acknowledges receipt of Three Million Three
Hundred Thousand U.S. Dollars ($3,300,000) from Buyer as payment in full for
the shares of stock specified above. Such sum is being delivered by wire
transfer to a banking account directed by Seller.
3. Stock Registration. Unless and until registered, all of the
shares of stock issued by Exsorbet Industries, Inc. pursuant to this Agreement
may not be sold or transferred unless and until registered or pursuant to a
valid exemption from registration. All stock certificates issued pursuant
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to this Agreement shall bear a restrictive legend in substantially the
following form:
"No sale, offer to sell, or transfer of the shares represented by this
certificate shall be made unless a registration statement under the
Federal Securities Act of 1933, as amended, with respect to such
shares is then in effect or an exemption from the registration
requirements of said act is then in fact applicable to said shares."
4. Representations of Exsorbet. Seller represents and warrants
the following facts to be true as of the time of execution of this Agreement:
(a) Exsorbet Industries, Inc. is a corporation duly organized and
existing under the laws of the State of Idaho, and is in good standing
within the State of Idaho;
(b) Seller has full corporate power and authority to perform its
obligations hereunder;
(c) Neither the execution and the delivery of this Agreement, nor
the consummation of the transaction contemplated hereby, will violate
any corporate by-laws, corporate charter, court orders, injunctions,
decrees, or rulings;
(d) There is only one class of stock of Exsorbet Industries, Inc.,
being the common or capital stock of such corporation. There is only
series of such stock. There are no series or classes of stock with
any preferred or preferential rights;
(e) The stock of Exsorbet Industries, Inc. trades on the Nasdaq
Stock Market, Inc. SmallCap Market under the symbol "EXSO;" and
(f) The shareholders of Exsorbet Industries, Inc. have been
requested to approve a proposed merger of such corporation into
Consolidated Eco-Systems, Inc., a Delaware corporation. If such
merger is approved, the Delaware corporation would be the surviving
corporation. Consolidated Eco-Systems, Inc. is, or when organized
will be, a wholly-owned subsidiary of Exsorbet Industries, Inc. In
the event that the proposed merger is approved, Exsorbet Industries,
Inc. binds and obligates itself to insure, and warrants, that
Consolidated Eco-Systems, Inc. would be bound by each and every term
of this Agreement.
5. Representations and Understandings of American Physicians
Service Group, Inc. Buyer understands that the shares of stock issued pursuant
to this Agreement have not been, and will not by the terms of this Agreement
be, registered under the Securities Act, or under any state securities laws,
and are being offered and sold in reliance upon federal and state exemptions
for transactions not involving any public offering. The terms of this
paragraph may be modified or amended by other Agreements existing between the
parties.
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Buyer represents that:
(i) it is acquiring the shares of common stock of Exsorbet
Industries, Inc. solely for its own account for investment purposes,
and not with a view to the distribution thereof;
(ii) it is a sophisticated investor with knowledge and experience in
business and financial matters;
(iii) it has received certain information concerning the Buyer and has
had the opportunity to obtain additional information as desired in
order to evaluate the merits and the risks inherent in holding the
stock of the Seller, provided however that the terms hereof shall be
subject to a 60 day Stock Put Agreement during which time Buyer shall
be afforded the right to conduct full due diligence inquiry of Seller,
to the extent desired;
(iv) it is able to bear the economic risk and lack of liquidity
inherent in holding the stock of Seller;
(v) it is an Accredited Investor, as defined by Regulation D
promulgated pursuant to the Securities Act of 1933, as amended; and
(vi) it has full corporate power and authority to enter into this
Agreement and to consummate the transaction contemplated hereunder.
6. Subsidiary Disclosure. Exsorbet Industries, Inc. has provided
information concerning its operating structure and specifically including a
list of its subsidiary corporations. Exsorbet represents and warrants that
such information is complete and accurate. A list of subsidiary corporations
is attached hereto, marked as Exhibit "A" and incorporated herein by reference.
7. No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person or entity other than the parties hereto and
their respective successors and permitted assigns.
8. Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. No party may assign either this Agreement or
any of his or its rights, interests, or obligations hereunder without the prior
written approval of the Buyer and the Sellers; provided, however, that Buyer
may assign this Agreement and its rights hereunder to any subsidiary or
affiliate of Buyer, and Buyer may transfer or convey its rights in any shares
of stock of the Seller and the Seller may merge with that certain Delaware
corporation known as Consolidated Eco-Systems, Inc., provided that such
corporation agrees to be completely bound by all terms of all contracts in
existence between the parties.
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9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
10. Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
11. Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and then
three business days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below:
If to the Seller: Copy to: Xxxxxxx X. Xxxxx, Xx., 0000 Xxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxx
Xxxxx, XX 00000.
If to the Buyer: Copy to: Xxxxx X. Xxxx, Xx., 0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx X-000, Xxxxxx, XX
00000-0000.
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been
duly given unless and until it actually is received by the intended recipient.
Any Party may change the address to which notices, requests, demands, claims,
and other communications hereunder are to be delivered by giving the other
Parties notice in the manner herein set forth.
12. Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Texas without giving
effect to any choice or conflict of law provision or rule that would cause the
application of the laws of any jurisdiction other than the State of Texas.
13. Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Buyer and the Seller. No waiver by any Party of any default, misrepresentation,
or breach of warranty or covenant hereunder, whether intentional or not, shall
be deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
14. Severability. Any term or provision of this Agreement that is
invalid or unenforceable
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in any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction.
EXSORBET INDUSTRIES, INC.,
an Idaho corporation
"SELLER"
By: /s/ Xxxxx Xxxxxxx
Title: Executive Vice-President
AMERICAN PHYSICIAN SERVICE GROUP, INC.
a Texas corporation
"BUYER"
By: Xxxxx Xxxx, Xx.
Title: President
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EXHIBIT "A"
EXSORBET INDUSTRIES, INC.
REVENUE GENERATING SUBSIDIARY CORPORATIONS
Consolidated Environmental Services, Inc., an Arkansas corporation;
Cierra, Inc., an Arkansas corporation.;
Larco Environmental Services, Inc., a Louisiana corporation.;
KR Industrial Service of Alabama, Inc., an Alabama corporation at
present;
Exsorbet Technical Services, Inc., an Arkansas corporation, d/b/a
SpilTech Services, Inc.; and
Eco-Acquisition, Inc., an Arkansas corporation (this company will be
changing its name to Eco-Systems, Inc.).
This list does not include non-revenue generating subsidiaries of Exsorbet
Industries, Inc.
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