Exhibit 10.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") ") is executed on May 15, 2004
by and among Systom Trust Joint Venture ("STJV" or "BUYER"), a Texas joint
venture, and "SELLERS" Xxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, husband and
wife, Xxxxxx Xxxxxxxx and Xxx X. Xxxxxxxx, all natural persons residing in the
State of Texas.
WHEREAS, SELLERS are the record and beneficial owners of not less than Eleven
Million Two Hundred Thirty One Four Hundred Ninety Two (11,376,492) shares of
$.01 par value common stock of Fleetclean Systems, Inc., a Texas corporation
("FLSY");
WHEREAS, SELLERS desire to sell to BUYER Ten Million Seven Hundred Eighty Three
Five Hundred Nineteen (10,783,519) shares of FLSY (the "SHARES") and to subject
their remaining Five Hundred Ninety Two Thousand Nine Hundred Seventy One
(592,971) shares of FLSY to a six month lock up agreement (the "Lock-up
Agreement") for the CONSIDERATION, defined below, subject to the terms and
conditions of this Agreement;
WHEREAS, BUYER desires to purchase the SHARES and secure the Lock-up Agreement
from SELLERS for the CONSIDERATION, defined below, subject to the terms and
conditions set forth below; and
WHEREAS, it is intended that the offer and sale of the securities be consummated
in accordance with the exempted transaction provisions of Section 4 of the
Securities Act of 1933, the Securities Act Rules and subsequent interpretations
of these provisions.
NOW, THEREFORE, for and in consideration of the mutual promises herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. The Purchase and Sale of the SHARES.
On the basis of the representations and warranties herein contained, subject to
the terms and conditions set forth herein, BUYER agrees to purchase the SHARES
from SELLERS. Moreover, subject to the terms and conditions set forth herein,
SELLERS agree to sell the SHARES to BUYER. BUYER and SELLERS agree that the
Consideration shall be One Hundred Fifty Thousand Dollars ($150,000) payable in
the manner set forth below. Immediately following execution of this Agreement,
BUYER shall deposit One Hundred Fifty Thousand Dollars ($150,000) (the "FUNDS")
into escrow. Immediately following execution of this Agreement SELLERS shall (1)
deposit the SHARES and fully executed stock powers with Medallion Signature
Guarantee and (2) deliver the Lock-up Agreement into escrow.
2. Escrow of FUNDS and SHARES and Closing.
A. ESCROW. The parties agree to select Xxxxx Xxxxxxxxx to act as escrow agent
("Escrow Agent") to hold and deliver the SHARES and the FUNDS, using accounts
with MSDW, Inc. Bank One, Columbus N.A., or similar nationally recognized
financial institution, together with any and all other documents reasonably
requested by Escrow Agent, to assist BUYER and SELLERS in effecting the
transaction contemplated herein. It is expressly understood that BUYER may
transfer funds directly to SELLERS, or upon written instructions to Fleetclean
Systems, Inc., Fleetclean Chemicals, Inc. or any other designees outside of the
Escrow Agent, but in all cases SELLERS shall cause all SHARES to be delivered to
the Escrow Agent.
B. CLOSING DATE. The closing of the purchase and sale contemplated by this
Agreement (the "Closing Date") shall occur, as soon as possible, but in all
cases on or before May 14, 2004, unless otherwise mutually extended. At Closing,
the Escrow Agent shall deliver the FUNDS, subject to the Holdback Provisions, as
described below, to SELLERS, or SELLERS's designee, and the SHARES to BUYER, or
its designee(s). Notwithstanding anything to the contrary, it shall be a
condition precedent to a closing under this Agreement that all Debenture Holders
of FLSY shall have agreed in writing to the restructuring plan described under
Subsequent Events in the Form 10-KSB of FLSY for the year ended December 31,
2003.
C. TRANSACTIONS AND DOCUMENT EXCHANGE AT CLOSING. Prior to or at the Closing,
the following transactions shall occur and documents shall be exchanged, all of
which shall be deemed to occur simultaneously:
(1) By BUYER. BUYER will deliver, or cause to be delivered, to SELLERS:
(i) The FUNDS up to $150,000, subject to the Holdback
Provisions, described below; and
(ii) Such other documents, instruments, and/or certificates,
if any, as are required to be delivered pursuant to the provisions of
this Agreement, or which are reasonably determined by the parties to be
required to effectuate the transactions contemplated in this Agreement,
or as otherwise may be reasonably requested by SELLERS in furtherance
of the intent of this Agreement.
HOLDBACK PROVISIONS. BUYER and SELLERS understand and agree that BUYER
is concurrently closing a transaction to acquire One Million (1,000,000) shares
of Series A Convertible Preferred Stock of Fleetclean Systems, Inc. Moreover,
BUYER understands that Xxxxxxx X. Xxxxxxxx has entered an Acquisition Agreement
to purchase Fleetclean Chemicals, Inc. ("FCI"), a wholly-owned subsidiary of
Fleetclean Systems, Inc. In connection with various transactions, BUYER and
SELLERS have agreed that the FUNDS shall be in all cases credited to SELLERS,
but that the available cash shall be directed/used by the Escrow Agent first to
pay FLSY's auditors ($6,750), then all other creditors of FLSY or FCI, save and
except those creditors or persons identified as "Retained Liabilities" under
that certain Asset and Liability Contribution Agreement dated March 31, 2004
between FLSY and FCI Escrow Agent shall cause FCI to deliver SELLERS a
promissory note for all FUNDS used to pay creditors of FCI. BUYER and SELLERS
agree that the sum of Fifty Thousand Dollars ($50,000) shall remain in escrow
for three months from the Closing Date. After three months, Twenty Five Thousand
Dollars ($25,000) shall remain in escrow until six months after the Closing
Date. During the six months following the Closing Date, the Escrow Agent is
authorized to use any and all FUNDS to discharge any liabilities to creditors of
FLSY or FCI, save and except liabilities to persons identified as "Retained
Liabilities" under that certain Asset and Liability Contribution Agreement dated
March 31, 2004 between FLSY and FCI, or any liability of FLSY incurred by or as
a direct result of the actions or omissions of management of FLSY on or after
the Closing Date.
(2) By SELLERS. SELLERS will deliver, or cause the following to be delivered to
BUYER:
(i) The SHARES;
(ii) The Lock-up Agreement;
(iii) The resignation letters from Xxxxxxx X. Xxxxxxxx, Xxx X.
Xxxxxxxx, and Xxxxxxx X. Xxxxxxxx as officers and directors of Fleetclean
Systems, Inc.;
(iv) Executed Written Consent to Action by Stockholders of Fleetclean
Systems, Inc. dated May 14, 2004;
(v) Release of Claims and Indemnity Agreement of Xxxxxxx X. Xxxxxxxx
(vi) Asset and Liability Contribution Agreement dated March 31, 2004
between Fleetclean Chemicals, Inc. and Fleetclean Systems, Inc.
(vii) Copies of corporate minute book of Fleetclean Chemicals, Inc. and
original minute book of Fleetclean Systems, Inc., the corporate tax returns,
state and federal of Fleetclean Systems, Inc., including all work papers, for
the last 6 tax years, a copy of the current tax exempt reseller's permit of
Fleetclean Systems, Inc.; and
(viii) Such other documents, instruments, and/or certificates, if any,
as are required to be delivered pursuant to the provisions of this Agreement, or
which are reasonably determined by the parties to be required to effectuate the
transactions contemplated in this Agreement, or as otherwise may be reasonably
requested by BUYER in furtherance of the intent of this Agreement.
(D) POST-CLOSING DOCUMENTS. From time to time after the Closing, upon the
reasonable request of any party, the party to whom the request is made shall
deliver such other and further documents, instruments, and/or certificates as
may be necessary to more fully vest in the requesting party the Consideration or
the SHARES, as provided for in this Agreement, or to enable the requesting party
to obtain the rights and benefits contemplated by this Agreement.
3. Private Offering.
A. PRIVATE OFFERING. BUYER and SELLERS understand each that the sale and
exchange of securities contemplated herein constitutes a private, arms-length
transaction between a willing seller and a willing buyer without the use or
reliance upon a broker, distribution or securities underwriter.
B. PURCHASE FOR INVESTMENT. Neither BUYER nor SELLERS are underwriters of, or
dealers in the securities to be sold and exchanged hereunder.
C. INVESTMENT RISK. Because of their financial position and other factors, the
transaction contemplated by this Agreement may involve a high degree of
financial risk, including the risk that one or both parties may lose its entire
investment.
D. ACCESS TO INFORMATION. BUYER and SELLERS and their advisors have been
afforded the opportunity to discuss the transaction with legal and accounting
professionals and to examine and evaluate the financial impact of the sale and
exchange contemplated herein.
4. Representations and Warranties.
BUYER hereby covenants with and represents and warrants to SELLERS that:
A. ORGANIZATION. BUYER is a Texas joint venture validly existing and in good
standing, with the power and authority to carry on its business as now being
conducted. The execution and delivery of this Agreement and the consummation of
the transaction contemplated in this Agreement have been, or will be prior to
Closing, duly authorized by all requisite action on the part of BUYER. This
Agreement has been duly executed and delivered by BUYER and constitutes a
binding, and enforceable obligation of BUYER;
B. THIRD PARTY CONSENT. No authorization, consent, or approval of, or
registration or filing with, any governmental authority or any other person is
required to be obtained or made by BUYER in connection with the execution,
delivery, or performance of this Agreement or the transfer of the securities, or
if required BUYER have or will obtain the same prior to Closing;
C. LITIGATION. BUYER is not a defendant against whom a claim has been made or a
judgment rendered in any litigation or proceedings before any local, state or
federal government, including but not limited to the United States, or any
department, board, body or agency thereof; and
D. AUTHORITY. This Agreement has been duly executed by BUYER, and the execution
and performance of this Agreement will not violate, or result in a breach of, or
constitute a default in any agreement, instrument, judgment, order or decree to
which BUYER is a party or to which the Consideration is subject.
SELLERS hereby covenant with and represents and warrants to BUYER that:
A. SELLERS are natural persons residing in the State of Texas. This Agreement
has been duly executed and delivered by SELLERS and constitutes a binding, and
enforceable obligation of SELLERS;
B. THIRD PARTY CONSENT. No authorization, consent, or approval of, or
registration or filing with, any governmental authority or any other person is
required to be obtained or made by SELLERS in connection with the execution,
delivery, or performance of this Agreement or the transfer of the securities, or
if required SELLERS have or will obtain the same prior to Closing;
C. LITIGATION. SELLERS is not a defendant against whom a claim has been made or
a judgment rendered in any litigation or proceedings before any local, state or
federal government, including but not limited to the United States, or any
department, board, body or agency thereof; and
D. AUTHORITY. This Agreement has been duly executed by SELLERS, and the
execution and performance of this Agreement will not violate, or result in a
breach of, or constitute a default in any agreement, instrument, judgment, order
or decree to which SELLERS is a party or to which the Consideration is subject.
E. INDIVIDUAL REPRESENTATIONS OF XXXXXXX X. XXXXXXXX. Xxxxxxx X. Xxxxxxxx
represents and warrants to BUYER that to the best of his knowledge, information
and belief there are no undisclosed liabilities or potential claims against
Fleetclean Systems, Inc. or the SHARES. Moreover, Xxxxxxx X. Xxxxxxxx agrees to
execute the 2003 state and federal income tax returns as the authorized agent of
Fleetclean Systems, Inc. or to reimburse BUYER 250% of the out-of-pocket cost to
prepare those returns.
5. Conditions Precedent to Closing.
All obligations under this Agreement and as an inducement for the BUYER to enter
into this Agreement are subject to SELLERS' covenants and agreement to each of
the following:
A. ACCEPTANCE OF DOCUMENTS. All instruments and documents delivered to BUYER
pursuant to this Agreement or reasonably requested by BUYER to verify the
representations and warranties of SELLERS herein, shall be satisfactory to BUYER
and its legal counsel.
B. REPRESENTATIONS AND WARRANTIES. The representations and warranties by SELLER
set forth in this Agreement shall be true and correct at and as of the Closing
Date, with the same force and effect as though made at and as of the date
hereof, except for changes permitted or contemplated by this Agreement.
C. NO BREACH OR DEFAULT. SELLER shall have performed and complied with all
covenants, agreements, and conditions required by this Agreement to be performed
or complied with by it prior to or at the Closing.
All obligations under this Agreement and as an inducement for SELLERS to enter
into this Agreement are subject to BUYER's covenants and agreement to each of
the following:
A. ACCEPTANCE OF DOCUMENTS. All instruments and documents delivered to SELLERS
or reasonably requested by SELLERS to verify the representations and warranties
of BUYER herein, shall be satisfactory to SELLERS and its legal counsel.
B. REPRESENTATIONS AND WARRANTIES. The representations and warranties by BUYER
set forth in this Agreement shall be true and correct at and as of the Closing
Date, with the same force and effect as though made at and as of the date
hereof, except for changes permitted or contemplated by this Agreement.
C. NO BREACH OR DEFAULT. BUYER shall have performed and complied with all
covenants, agreements, and conditions required by this Agreement to be performed
or complied with by it prior to or at the Closing.
6. Termination.
This Agreement may be terminated at anytime prior to the date of Closing by
either party if (a) there shall be any actual or threatened action or proceeding
by or before any court or any other governmental body which shall seek to
restrain, prohibit, or invalidate the transaction contemplated by this
Agreement, and which, in the judgment of such party giving notice to terminate
and based upon the advice of legal counsel, makes it inadvisable to proceed with
the transaction contemplated by this Agreement.
7. Miscellaneous.
A. AUTHORITY. The persons executing this Agreement are duly authorized to do so
and each person has taken all action required by law or otherwise to properly
and legally execute this Agreement.
B. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding between
the parties hereto and no other prior written or oral statement or agreement
shall be recognized or enforced.
C. SEVERABILITY. If a court of competent jurisdiction determines that any clause
or provision of this Agreement is invalid, illegal or unenforceable, the other
clauses and provisions of the Agreement shall remain in full force and effect
and the clauses and provision which are determined to be void, illegal or
unenforceable shall be limited so that they shall remain in effect to the extent
permissible by law.
D. ASSIGNMENT. None of the parties hereto may assign this Agreement without the
express written consent of the other parties and any approved assignment shall
be binding on and inure to the benefit of such successor or, in the event of
death or incapacity, on assignor's heirs, executors, administrators and
successors.
E. APPLICABLE LAW. This Agreement has been negotiated and is being contracted
for in the State of Texas. The parties agree that this Agreement shall be
governed by the laws of the State of Texas, notwithstanding any conflict-of-law
provision to the contrary.
F. ATTORNEY'S FEES. If any legal action or other proceeding (non-exclusively
including arbitration) is brought for the enforcement of or to declare any right
or obligation under this Agreement or as a result of a breach, default or
misrepresentation in connection with any of the provisions of this Agreement, or
otherwise because of a dispute among the parties hereto, the prevailing party
will be entitled to recover actual attorney's fees (including for appeals and
collection) and other expenses incurred in such action or proceeding, in
addition to any other relief to which such party may be entitled.
G. NO THIRD PARTY BENEFICIARY. Nothing in this Agreement, expressed or implied,
is intended to confer upon any person, other than the parties hereto and their
successors, any rights or remedies under or by reason of this Agreement, unless
this Agreement specifically states such intent.
H. COUNTERPARTS. It is understood and agreed that this Agreement may be executed
in any number of identical counterparts, each of which may be deemed an original
for all purposes.
I. FURTHER ASSURANCES. At any time, and from time to time after the Closing,
each party hereto will execute such additional instruments and take such action
as may be reasonably requested by the other party to confirm or perfect title to
the SHARES to be transferred hereunder or otherwise to carry out the intent and
purposes of this Agreement.
J. AMENDMENT OR WAIVER. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, at law,
or in equity, and may be enforced concurrently herewith, and no waiver by any
party of the performance of any obligation by the other shall be construed as a
waiver of the same or any other default then, theretofore, or thereafter
occurring or existing. At any time prior to Closing, this Agreement may be
amended by a writing signed by all parties hereto.
K. HEADINGS. The section and subsection headings in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
L. FACSIMILE. A facsimile, telecopy or other reproduction of this instrument may
be executed by one or more parties hereto and such executed copy may be
delivered by facsimile or similar instantaneous electronic transmission device
pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for
all purposes. At the request of any party hereto, all parties agree to execute
an original of this instrument as well as any facsimile, telecopy or other
reproduction hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year
first written above.
BUYER
Systom Trust Joint Venture
By: /S/ XXXXX XXXXXXXXX
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Name: Xxxxx Xxxxxxxxx
Title: Trustee
SELLERS
Xxxxxxx X. Xxxxxxxx
By: /S/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
By: /S/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Xxx X. Xxxxxxxx
By: /S/ XXX X. XXXXXXXX
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Name: Xxx X. Xxxxxxxx
Xxxxxx Xxxxxxxx
By: /S/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
