EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
BETWEEN
PDG ENVIRONMENTAL, INC.
AND
XXXXXX PARTNERS LP
DATED
MARCH 4, 2004
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "AGREEMENT") is made and entered
into as of 4th day of March, 2003 by and between PDG ENVIRONMENTAL, INC., a
corporation organized and existing under the laws of the State of Delaware ("PDG
ENVIRONMENTAL" or the "COMPANY"), and Xxxxxx Partners LP, a Delaware limited
partnership ("INVESTOR").
PRELIMINARY STATEMENT:
WHEREAS, the Investor wishes to purchase from the Company, upon the
terms and subject to the conditions of this Agreement, 1,250,000 shares of the
Common Stock of the Company and common stock purchase warrants described herein
(each share of Common Stock and corresponding stock purchase warrant are
referred to herein as a "UNIT") for a purchase price of Five Hundred Thousand
Dollars ($500,000); and
WHEREAS, the parties intend to memorialize the purchase and sale of
such Units.
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I
INCORPORATION BY REFERENCE, SUPERSEDER AND DEFINITIONS
1.1 Incorporation by Reference. The foregoing recitals, the Exhibits
attached hereto and referred to herein, are hereby acknowledged to be true and
accurate, and are incorporated herein by this reference.
1.2 Superseder. This Agreement, to the extent that it is inconsistent with
any other instrument or understanding among the parties governing the affairs of
the Company, shall supersede such instrument or understanding to the fullest
extent permitted by law. A copy of this Agreement shall be filed at the
Company's principal office.
1.3 Certain Definitions. For purposes of this Agreement, the following
capitalized terms shall have the following meanings (all capitalized terms used
in this Agreement that are not defined in this Article I shall have the meanings
set forth elsewhere in this Agreement):
1.3.1 "1933 ACT" means the Securities Act of 1933, as
amended.
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 1 OF 25
1.3.2 "1934 ACT" means the Securities Exchange Act of 1934,
as amended.
1.3.3 "AFFILIATE" means a Person or Persons directly or
indirectly, through one or more intermediaries, controlling, controlled by or
under common control with the Person(s) in question. The term "control," as used
in the immediately preceding sentence, means, with respect to a Person that is a
corporation, the right to the exercise, directly or indirectly, of more than 50
percent of the voting rights attributable to the shares of such controlled
corporation and, with respect to a Person that is not a corporation, the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such controlled Person.
1.3.4 "CERTIFICATE". The Certificate of Incorporation of
the Company, as the same may be amended from time to time.
1.3.5 "CLOSING DATE" means the earlier of March 4, 2004 or
upon all of the conditions of Article VIII and Article IX herein are satisfied,
unless extended by mutual consent by the Company and the Investor.
1.3.6 "COMMON STOCK" means the shares of common stock of
PDG ENVIRONMENTAL, par value $0.02 per share.
1.3.7 "MATERIAL ADVERSE EFFECT" shall mean any adverse
effect on the business, operations, properties or financial condition of the
Company that is material and adverse to the Company and its subsidiaries and
affiliates, taken as a whole and/or any condition, circumstance, or situation
that would prohibit or otherwise materially interfere with the ability of the
Company to perform any of its material obligations under this Agreement or the
Registration Rights Agreement; provided, however, that none of the following
shall be deemed, in themselves, either alone or in combination, to constitute a
Material Adverse Effect, and none of the following shall be taken into account
in determining whether there has been or shall be a Material Adverse Effect: (i)
any change in the market price or trading volume of the Common Stock after the
date hereof, (ii) any adverse circumstance, change or effect resulting directly
from conditions affecting the industries in which the Company participates in
their entirety or the U.S. economy as a whole, (iii) any adverse circumstance,
change or effect resulting directly from the announcement or pendency of this
Agreement or (iv) any adverse circumstance, change or effect resulting from the
taking of any action by the Company that this Agreement or the Registration
Rights Agreement requires the Company to take.
1.3.8 "PERSON" means an individual, partnership, firm,
limited liability company, trust, joint venture, association, corporation, or
any other legal entity.
1.3.9 "REGISTRATION RIGHTS AGREEMENT" shall mean the
registration rights agreement between the Investor and the Company attached
hereto as Exhibit A.
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 2 OF 25
1.3.10 "REGISTRATION STATEMENT" shall mean the registration
statement under the 1933 Act to be filed with the SEC for the registration of
the Shares pursuant to the Registration Rights Agreement attached hereto as
Exhibit A.
1.3.11 "SEC" means the Securities and Exchange Commission.
1.3.12 "SEC DOCUMENTS" shall mean the Company's Form 10-K
for the year ended January 31, 2003 and all Forms 10-Q or 10-QSB and 8-K filed
thereafter until the date of this Agreement, including any filed amendment to
such documents, whether or not such amendment is required to be so filed, and
the Company's 2003 Proxy Statement.
1.3.13 "SHARES" shall mean, collectively, the shares of
Common Stock of the Company being subscribed for hereunder and those shares of
Common Stock issuable to the Investor upon exercise of the Warrants.
1.3.14 "UNITS" shall mean the Common Stock and the Warrants
collectively.
1.3.15 "FIRST WARRANTS" shall mean the common stock purchase
warrants in the form attached hereto as Exhibit B.
1.3.16 "SECOND WARRANTS" shall mean the common stock
purchase warrants in the form attached hereto as Exhibit C.
1.3.17 "WARRANTS" shall mean the First Warrants and Second
Warrants.
ARTICLE II
SALE AND PURCHASE OF PDG ENVIRONMENTAL'S UNITS
AND PURCHASE PRICE
2.1 SALE OF PDG ENVIRONMENTAL UNITS Upon the terms and subject to the
conditions set forth herein, and in accordance with applicable law, the Company
agrees to sell, and the Investor agrees to purchase, the following Units for an
aggregate purchase price of Five Hundred Thousand Dollars ($500,000) (the
"PURCHASE PRICE") on the Closing Date.
2.1.1 COMMON STOCK Upon execution and delivery of this
Agreement and the Company's receipt of the Purchase Price, the Investor shall
receive 1,250,000 shares of Common Stock of the Company for a purchase price of
$ 0.40 per share. The Company shall register those shares of Common Stock
pursuant to the terms and conditions of a Registration Rights Agreement attached
hereto as Exhibit A.
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 3 OF 25
2.1.2 WARRANTS Upon execution and delivery of this
Agreement and the Company's receipt of the Purchase Price, the Investor shall
receive the First Warrants, in the form attached hereto as Exhibit B, and the
Second Warrants, in the form attached hereto as Exhibit C.
2.2 PURCHASE PRICE. The Purchase Price to be paid by the Investor on the
Closing Date shall be payable in United States Dollars. Payment to the Company
of the Purchase Price shall be made at the Closing Date by check payable to PDG
Environmental, Inc.
ARTICLE II
CLOSING DATE AND DELIVERIES AT CLOSING
3.1 CLOSING DATE. The closing of the transactions contemplated by this
Agreement (the "CLOSING"), unless expressly determined herein, shall be held at
the offices of the Company, at 5:00 P.M. local time, on the Closing Date or on
such other date and at such other place as may be mutually agreed by the
parties, including closing by facsimile with originals to follow.
3.2 DELIVERIES BY THE COMPANY. In connection with the Closing, the Company
shall deliver, or cause to be delivered, to the Investor, the following:
(a) Within seven (7) business days following the Closing,
Certificates representing PDG ENVIRONMENTAL Shares,
which certificates shall be duly endorsed to the
Investor and shall contain the restrictive legends
set forth in Section 7.3 below;
(b) At or prior to Closing, an Agreement executed by the
Company;
(c) At or prior to Closing, a First Warrant executed by
the Company in the name of the Investor in the form
attached hereto as Exhibit B;
(d) At or prior to Closing, a Second Warrant executed by
the Company in the name of the Investor in the form
attached hereto as Exhibit C;
(e) At or prior to Closing, a Registration Rights
Agreement executed by the Company in the form
attached hereto as Exhibit A; and
(f) At or prior to Closing, confirmation that the
provisions of Paragraph 6.6 herein have been
satisfied or commenced, as appropriate.
3.3 DELIVERIES BY INVESTOR. In connection with the Closing, the Investor
shall deliver, or cause to be delivered, to the Company, as appropriate, the
following:
(a) At or prior to Closing, the Purchase Price;
(b) At or prior to Closing, an Agreement executed by the
Investor; and
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 4 OF 25
(c) At or prior to Closing, a Registration Rights
Agreement executed by the Investor in the form
attached hereto as Exhibit A.
In the event any document provided to the other party in Paragraphs 3.2
and 3.3 herein are provided by facsimile, the party shall forward an original
document to the other party within seven (7) business days.
3.4 FURTHER ASSURANCES. The Company and the Investor shall, upon request,
on or after the Closing Date, cooperate with each other by furnishing any
additional information, executing and delivering any additional documents and/or
other instruments and doing any and all such things as may be reasonably
required by the parties or their counsel to consummate or otherwise implement
the transactions contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PDG ENVIRONMENTAL
PDG ENVIRONMENTAL represents and warrants to the Investor as of the
date hereof as follows:
4.1 ORGANIZATION AND QUALIFICATION. PDG ENVIRONMENTAL is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has the requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as it is now being conducted
and is duly qualified to do business in any other jurisdiction by virtue of the
nature of the businesses conducted by it or the ownership or leasing of its
properties, except where the failure to be so qualified will not, when taken
together with all other such failures, have a Material Adverse Effect on PDG
ENVIRONMENTAL and its subsidiaries taken as a whole.
4.2 CERTIFICATE OF INCORPORATION AND BY-LAWS. The complete and correct
copies of PDG ENVIRONMENTAL's Certificate and by-laws, as amended or restated to
date which have been filed with the Securities and Exchange Commission are a
complete and correct copy of such document as in effect on the date hereof and
as of the Closing Date.
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 5 OF 25
4.3 CAPITALIZATION.
4.3.1 As of the date hereof, the authorized capital stock
of PDG ENVIRONMENTAL consists of 30,000,000 shares of Common Stock, par value
$0.02 per share and 5,000,000 shares of Preferred Stock, of which 5,000,000 is
designated Series A Preferred Stock, par value $0.02 per share. As of the date
hereof, there were (i) 9,423,800 shares of Common Stock issued and outstanding,
(ii) 6,000 shares of Series A Preferred Stock issued and outstanding and (iii)
46,510 shares of Common Stock and no shares of Series A Preferred Stock held in
treasury. All shares of capital stock have been duly authorized and are validly
issued, and are fully paid and no assessable, and free of preemptive rights.
4.3.2 Except pursuant to this Agreement or as otherwise set
forth in the SEC Documents, as of the date hereof, there are not now outstanding
options, warrants, rights to subscribe for, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into or
exchangeable for, shares of any class of capital stock of PDG ENVIRONMENTAL, or
agreements, understandings or arrangements to which PDG ENVIRONMENTAL is a
party, or by which PDG ENVIRONMENTAL is or may be bound, to issue additional
shares of its capital stock or options, warrants, scrip or rights to subscribe
for, calls or commitment of any character whatsoever relating to, or securities
or rights convertible into or exchangeable for, any shares of any class of its
capital stock. The Company agrees to inform the Investor in writing of any
additional options or warrants granted prior to the Closing Date.
4.3.3 The Company on the Closing Date (i) will have full
right, power, and authority to sell, assign, transfer, and deliver, by reason of
record and beneficial ownership, to each Investor, PDG ENVIRONMENTAL Shares
hereunder, free and clear of all liens, charges, claims, options, pledges,
restrictions, and encumbrances whatsoever; and (ii) upon delivery of and payment
by each Investor of the Purchase Price to the Company, such Investor will
acquire good and marketable title to such Company Stock, free and clear of all
liens, charges, claims, options, pledges, restrictions, and encumbrances
whatsoever, except in each case of (i) and (ii), such liens, charges, claims,
options, pledges, restrictions and encumbrances as may be (x) imposed under
federal or state securities laws, (y) set forth in the Agreement or the
Registration Rights Agreement or (z) imposed through the actions of the
Investor.
4.4 AUTHORITY. PDG ENVIRONMENTAL has all requisite corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by PDG ENVIRONMENTAL and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action and no other corporate proceedings on the part of PDG
ENVIRONMENTAL is necessary to authorize this Agreement or to consummate the
transactions contemplated hereby except as disclosed in this Agreement. This
Agreement and the Registration Rights Agreement have been duly executed and
delivered by PDG
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 6 OF 25
ENVIRONMENTAL and constitute the legal, valid and binding obligations of PDG
ENVIRONMENTAL, enforceable against PDG ENVIRONMENTAL in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting the enforcement of
creditors' rights generally and general principles of equity.
4.5 NO CONFLICT; REQUIRED FILINGS AND CONSENTS. Neither the execution and
delivery of this Agreement by PDG ENVIRONMENTAL, nor the performance by PDG
ENVIRONMENTAL of its obligations hereunder, will: (i) conflict with or violate
the Certificate or by-laws of PDG ENVIRONMENTAL; (ii) conflict with, breach or
violate any federal, state, foreign or local law, statute, ordinance, rule,
regulation, order, judgment or decree (collectively, "LAWS") in effect as of the
date of this Agreement and applicable to PDG ENVIRONMENTAL; or (iii) result in
any breach of, constitute a default (or an event that with notice or lapse of
time or both would become a default) under, give to any other entity any right
of termination, amendment, acceleration or cancellation of, require payment
under, or result in the creation of a lien or encumbrance on any of the
properties or assets of PDG ENVIRONMENTAL pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which PDG ENVIRONMENTAL is a party or by PDG
ENVIRONMENTAL or any of its properties or assets is bound, except in each of the
cases of (i) through (iii) for any violations, conflicts, breaches, defaults,
terminations, accelerations, liens or encumbrances that would not, in the
aggregate, have a Material Adverse Effect on PDG Environmental.
4.6 REPORT AND FINANCIAL STATEMENTS. PDG ENVIRONMENTAL's Annual Report on
Form 10-KSB, filed on April 24, 2003 with the Securities and Exchange Commission
contains the audited financial statements of PDG ENVIRONMENTAL at and as of
January 31, 2003 (the "FINANCIAL STATEMENTS"). Each of the balance sheets
contained in or incorporated by reference into any such Financial Statements
(including the related notes and schedules thereto) fairly presented the
financial position of PDG ENVIRONMENTAL as of its date, and each of the
statements of income and changes in stockholders' equity and cash flows or
equivalent statements in such Financial Statements (including any related notes
and schedules thereto) fairly presents the results of operations, changes in
stockholders' equity and changes in cash flows, as the case may be, of PDG
ENVIRONMENTAL for the periods to which they relate, in each case in accordance
with United States generally accepted accounting principles ("U.S. GAAP")
consistently applied during the periods involved, except in each case as may be
noted therein, subject to normal year-end audit adjustments in the case of
unaudited statements. The books and records of PDG ENVIRONMENTAL have been, and
are being, maintained in all material respects in accordance with U.S. GAAP and
any other applicable legal and accounting requirements and reflect only actual
transaction.
4.7 COMPLIANCE WITH APPLICABLE LAWS. PDG ENVIRONMENTAL is not in violation
of, or, to the knowledge of PDG ENVIRONMENTAL is under investigation with
respect to or has been given notice or has been charged with the violation of
any Law of a governmental agency,
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 7 OF 25
except for violations which individually or in the aggregate do not have a
Material Adverse Effect on PDG Environmental.
4.8 BROKERS. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or Commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of PDG ENVIRONMENTAL.
4.9 SEC DOCUMENTS. PDG ENVIRONMENTAL acknowledges that PDG ENVIRONMENTAL is
a publicly held company and has made available to the Investor after demand true
and complete copies of any requested SEC Documents. The Company has registered
its Common Stock pursuant to Section 12 of the 1934 Act, and the Common Stock is
listed and traded on the OTC Bulletin Board Market (the "OTC BULLETIN BOARD") of
the National Association of Securities Dealers, Inc. (the "NASD"). The Company
has received no notice, either oral or written, from the NASD stating that the
Company has failed to comply with any listing standards with respect to the
continued eligibility of the Common Stock for such listing on the OTC Bulletin
Board, and the Company has maintained all NASD requirements for the continuation
of such listing on the OTC Bulletin Board. As of their respective dates (or if
amended or superseded, as of the date of the last amendment or superseding
report filed prior to the date hereof), the SEC Documents complied in all
material respects with the requirements of the 1934 Act, and rules and
regulations of the SEC promulgated thereunder and the SEC Documents did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
4.10 LITIGATION. To the knowledge of PDG ENVIRONMENTAL, no litigation,
claim, or other proceeding before any court or governmental agency is pending or
threatened against PDG ENVIRONMENTAL, except as would not otherwise have a
Material Adverse Effect on PDG Environmental.
4.11 EXEMPTION FROM REGISTRATION. Subject to the accuracy of the Investor's
representations in Article V, the sale of the Units by the Company to the
Investor will not require registration under the 1933 Act and/or any applicable
state securities law. When validly converted in accordance with the terms of the
Warrants, the Shares underlying the Warrants will be duly and validly issued,
fully paid, and non-assessable. The Company is issuing the Units to the Investor
in accordance with and in reliance upon the exemption from securities
registration afforded, inter alia, by Rule 506 under Regulation D as promulgated
by the SEC under the 1933 Act, and/or Section 4(2) of the 1933 Act.
4.12 NO GENERAL SOLICITATION OR ADVERTISING IN REGARD TO THIS TRANSACTION.
Neither the Company nor any of its Affiliates nor, to the knowledge of the
Company, any Person acting on its or their behalf (i) has conducted or will
conduct any general solicitation (as that term is used in Rule 502(c) of
Regulation D as promulgated by the SEC under the 0000 Xxx) or general
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 8 OF 25
advertising with respect to the sale of the Units, or (ii) made any offers or
sales of any security or solicited any offers to buy any security under any
circumstances that would require registration of the Units, under the 1933 Act,
except as required herein.
4.13 NO MATERIAL ADVERSE CHANGE. Since January 31, 2003 until the date
hereof, no Material Adverse Effect has occurred or exists with respect to the
Company that has not been disclosed in the SEC Documents. No material supplier
has given notice, oral or written, that it intends to cease or reduce the volume
of its business with the Company from historical levels. Since January 31, 2003
until the date hereof, no event or circumstance has occurred or exists with
respect to the Company or its businesses, properties, operations or financial
condition, that, under any applicable law, rule or regulation, requires public
disclosure or announcement prior to the date hereof by the Company but which has
not been so publicly announced or disclosed in writing to the Investor.
4.14 INTERNAL CONTROLS AND PROCEDURES. The Company maintains books and
records and internal accounting controls which provide reasonable assurance that
(i) all transactions to which the Company or any subsidiary is a party or by
which its properties are bound are executed with management's authorization;
(ii) the recorded accounting of the Company's consolidated assets is compared
with existing assets at regular intervals; (iii) access to the Company's
consolidated assets is permitted only in accordance with management's
authorization; and (iv) all transactions to which the Company or any subsidiary
is a party or by which its properties are bound are recorded as necessary to
permit preparation of the financial statements of the Company in accordance with
U.S. generally accepted accounting principles.
4.15 FULL DISCLOSURE. No representation or warranty made by PDG
ENVIRONMENTAL in this Agreement contains any untrue statement of a material
fact, or omits to state a material fact necessary to make the statements
contained herein or therein not misleading.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor represents and warrants to the Company as of the date
hereof that:
5.1 ORGANIZATION AND STANDING OF THE INVESTOR. The Investor is duly
organized, validly existing and in good standing under the laws of the state in
which it was formed. The state in which any offer to purchase shares hereunder
was made or accepted by the Investor is the state shown as such Investor's
address. The Investor was not formed for the purpose of investing solely in the
Units the subject of this Agreement.
5.2 AUTHORIZATION. The Investor has all requisite power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 9 OF 25
contemplated hereby including the purchase of the Units being sold to it
hereunder. The execution and deliver of this Agreement by the Investor and the
consummation by the Investor of the transactions contemplated hereby have been
duly authorized by all necessary action and no other proceedings on the part of
the Investor is necessary to authorize this Agreement or to consummate the
transactions contemplated hereby except as disclosed in this Agreement. This
Agreement and the Registration Rights Agreement have been duly executed and
delivered by the Investor and constitute valid and binding obligations of the
Investor, enforceable against the Investor in accordance with their respective
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting the enforcement of
creditors' rights generally and general principles of equity.
5.3 NO CONFLICTS; REQUIRED FILINGS AND CONSENTS. Neither the execution and
delivery of this Agreement by the Investor nor the performance by the Investor
of its obligations hereunder will: (i) conflict with or violate the Investor's
charter documents or bylaws, (ii) conflict with, or breach or violate any Laws
in effect as of the date of this Agreement and applicable to the Investor; or
(iii) result in any breach of, or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to other
entity any right of termination, amendment, acceleration or cancellation of, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which the Investor is a party or
by which it or any of its properties or assets is bound, except in each of the
cases of (i) through (iii) for any violations, conflicts, breaches, defaults,
terminations, accelerations, liens or encumbrances that would not, in the
aggregate, have a Material Adverse Effect on the Investor. The Investor is not
required to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of such Investor's obligations under this Agreement or to
purchase the Units in accordance with the terms hereof, provided that for
purposes of the representation made in this sentence, the Investor is assuming
and relying upon the accuracy of the relevant representations and agreements of
the Company herein.
5.4 FINANCIAL RISKS. The Investor acknowledges that such Investor is able
to bear the financial risks associated with an investment in the Units and that
it has been given full access to such records of the Company and the
subsidiaries and to the officers of the Company and the subsidiaries as it has
deemed necessary or appropriate to conduct its due diligence investigation. The
Investor is capable of evaluating the risks and merits of an investment in the
Units by virtue of its experience as an investor and its knowledge, experience,
and sophistication in financial and business matters and the Investor is capable
of bearing the entire loss of its investment in the Units.
5.5 ACCREDITED INVESTOR. The Investor is (i) an "accredited investor" as
that term is defined in Rule 501 of Regulation D promulgated under the 1933 Act
by reason of Rule 501(a)(3) and (6), (ii) experienced in making investments of
the kind described in this Agreement and the related documents, (iii) able, by
reason of the business and financial experience of its officers (if
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 10 OF 25
an entity) and professional advisors (who are not affiliated with or compensated
in any way by the Company or any of its affiliates or selling agents), to
protect its own interests in connection with the transactions described in this
Agreement, and the related documents, and (iv) able to afford the entire loss of
its investment in the Units.
5.6 INVESTMENT INTENT. The Investor is purchasing the Units for its own
account as principal, for investment purposes only, and not with a present view
to, or for, resale, distribution or fractionalization thereof, in whole or in
part, within the meaning of the 1933 Act. The Investor understands that its
acquisition of the Units has not been registered under the 1933 Act or
registered or qualified under any state securities law in reliance on specific
exemptions therefrom, which exemptions may depend upon, among other things, the
bona fide nature of such Investor's investment intent as expressed herein. The
Investor shall not, directly or indirectly, offer, sell, pledge, transfer, or
otherwise dispose of (or solicit any offers to buy, purchase, or otherwise
acquire or take a pledge of) any of the Units, except in compliance with the
terms of this Agreement and the registration requirements of the 1933 Act, and
the rules and regulations promulgated thereunder, or an exemption thereunder.
5.7 NO LEGAL, TAX OR INVESTMENT ADVICE. The Investor understands that
nothing in this Agreement or any other materials presented to such Investor in
connection with the purchase of the Units constitutes legal, tax or investment
advice. The Investor has consulted such legal, tax and investment advisors as
it, in its sole discretion, has deemed necessary or appropriate in connection
with its purchase of the Units.
5.8 NO SHORT SALES. Prior to the Closing Date, neither the Investor nor any
of the Investor's Affiliates will be in a net short position with regard to the
Common Stock in any accounts directly or indirectly controlled by the Investor.
5.9 BROKERS. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or Commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Investor.
5.10 KNOWLEDGE OF COMPANY. The Investor and such Investor's advisors, if
any, have been, upon request, furnished with all materials relating to the
business, finances and operations of the Company and materials relating to the
offer and sale of the Units. Each Investor and such Investor's advisors, if any,
have been afforded the opportunity to ask questions of the Company and have
received complete and satisfactory answers to any such inquiries.
5.11 RISK FACTORS The Investor understands that such Investor's investment
in the Units involves a high degree of risk. Each Investor understands that no
United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Units.
Each Investor warrants that such Investor is able to bear the complete loss of
such Buyer's investment in the Units.
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 11 OF 25
5.12 FULL DISCLOSURE. No representation or warranty made by the Investor in
this Agreement contains any untrue statement of a material fact, or omits to
state a material fact necessary to make the statements contained herein not
misleading. Except as set forth or referred to in this Agreement, Investor does
not have any agreement or understanding with any person relating to acquiring,
holding, voting or disposing of any equity securities of the Company.
ARTICLE VI
COVENANTS OF THE COMPANY
6.1. REGISTRATION RIGHTS. The Company shall cause the Registration Rights
Agreement to remain in full force and effect and the Company shall comply in all
material respects with the terms thereof.
6.2. RESERVATION OF COMMON STOCK. As of the date hereof, the Company has
reserved and the Company shall continue to reserve and keep available at all
times, free of preemptive rights, shares of Common Stock for the purpose of
enabling the Company to issue the shares of Common Stock underlying the
Warrants.
6.3. LISTING OF COMMON STOCK. The Company hereby agrees to maintain the
listing of the Common Stock on the OTC Bulletin Board or another publicly traded
market. The Company will take all action to continue the listing and trading of
its Common Stock on the OTC Bulletin Board or another publicly traded market and
will comply in all respects with the Company's reporting, filing and other
obligations under the bylaws or rules of such publicly traded market.
6.4. EXCHANGE ACT REGISTRATION. The Company will cause its Common Stock to
continue to be registered under Section 12(b) or (g) of the 1934 Act, will use
its best efforts to comply in all respects with its reporting and filing
obligations under the 1934 Act, and will not take any action or file any
document (whether or not permitted by the 1934 Act or the rules thereunder) to
terminate or suspend such registration or to terminate or suspend its reporting
and filing obligations under the 1934 until the Investor have disposed of all of
their Shares or the shares of Common Stock underlying the Warrants.
6.5. CORPORATE EXISTENCE; CONFLICTING AGREEMENTS. From the date hereof until
the Closing Date, the Company will take all steps necessary to preserve and
continue the corporate existence of the Company. The Company shall not enter
into any agreement, the terms of which agreement would restrict or impair the
right or ability of the Company to perform any of its obligations under this
Agreement or any of the other agreements attached as exhibits hereto.
6.6 PREFERRED STOCK. On or prior to the Closing Date, the Company will
cause the conversion of all 6,000 shares of Series A Preferred Stock currently
outstanding into 24,000 shares of Common Stock.
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 12 OF 25
6.7 USE OF PROCEEDS. The Company will use the proceeds from the sale of the
Units (excluding amounts paid by the Company for legal and administrative fees
in connection with the sale of the Units) for working capital.
6.8 RIGHT OF FIRST REFUSAL. The Company hereby grants to the Investor the
right of first refusal to purchase its pro rata share of New Securities (as
defined in this Section 6.8(a)) which the Company may, from time to time,
propose to sell and issue after the date of this Agreement. The Investor's pro
rata share, for purposes of this right of first refusal, is equal to the ratio
of (a) the number of shares of Common Stock owned by the Investor immediately
prior to the issuance of New Securities (assuming full conversion and exercise
of all outstanding convertible securities, rights, options and warrants,
directly or indirectly, into Common Stock held by the Investor) to (b) the total
number of shares of Common Stock outstanding immediately prior to the issuance
of New Securities (assuming full conversion and exercise of all outstanding
convertible securities, rights, options and warrants, directly or indirectly,
into Common Stock).
(a) "NEW SECURITIES" shall mean any capital stock of the
Company whether now authorized or not, and rights, convertible securities,
options or warrants to purchase such capital stock, and securities of any type
whatsoever that are, or may become, exercisable or convertible into capital
stock; provided that the term "NEW SECURITIES" does not include:
(i) the Shares, the Warrants or the shares of
Common Stock issuable upon exercise of the Warrants;
(ii) securities issued or issuable to (A)
officers, employees, directors, consultants, placement agents, and other service
providers of the Company (or any subsidiary) pursuant to stock grants, option
plans, purchase plans, agreements or other employee stock incentive programs or
arrangements approved by the Board of Directors of the Company or (B) suppliers
or third party service providers in connection with the provision of goods or
services pursuant to transactions approved by the Board of Directors of the
Company;
(iii) securities issued or issuable to banks,
equipment lessors or other financial institutions pursuant to a commercial
leasing or debt financing transaction in an aggregate amount not to exceed five
percent (5%) of the shares of the Company's Common Stock then outstanding;
(iv) securities issued or issuable as dividends
to shares of all of Company's Common Stock;
(v) securities offered pursuant to a bona fide,
firmly underwritten public offering pursuant to a registration statement filed
under the Securities Act; and
(vi) securities issued or issuable pursuant to
the acquisition of another
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 13 OF 25
corporation by merger, purchase of substantially all of the assets or other
reorganization or to a joint venture agreement, provided, that such issuances
are approved by the Board of Directors of the Company.
(b) In the event the Company proposes to undertake an
issuance of New Securities, it shall give the Investor written notice of its
intention, describing the type of New Securities, and their price and the
general terms upon which the Company proposes to issue the same. The Investor
shall have ten (10) days after any such notice is mailed or delivered to agree
to purchase its pro rata share of such New Securities for the price and upon the
terms specified in the notice by giving written notice to the Company, and
stating therein the quantity of New Securities to be purchased.
(c) In the event the Investor fails to exercise fully the
right of first refusal and over-allotment rights, if any, within said ten (10)
day period (the "ELECTION PERIOD"), the Company shall have ninety (90) days
thereafter to sell or enter into an agreement (pursuant to which the sale of New
Securities covered thereby shall be closed, if at all, within ninety (90) days
from the date of said agreement) to sell that portion of the New Securities with
respect to which the Investor's right of first refusal option set forth in this
Section 6.8 was not exercised, at a price and upon terms no more favorable to
the purchasers thereof than specified in the Company's notice to the Investor
delivered pursuant to Section 6.8(b); provided, however, that the price to the
purchasers thereof must be 110% of the price offered to the Investor. In the
event the Company has not sold within such ninety (90) day period following the
Election Period, or such ninety (90) day period following the date of said
agreement, the Company shall not thereafter issue or sell any New Securities,
without first again offering such securities to the Significant Holders in the
manner provided in this Section 6.8.
(d) Notwithstanding anything contained herein to the
contrary, the Investor shall not be entitled to the right of first refusal
granted under this Agreement with respect to any sale or issuance of New
Securities at any time the Company has an effective registration statement
registering the resale of the Shares or during any Black-Out Period (as defined
in the Registration Rights Agreement.)
6.9 TERMINATION OF COVENANTS. The provisions contained in this Article VI
shall terminate upon the earlier to occur of: (i) the second anniversary date of
the Closing Date, (ii) such date on which the Investor owns less than 20% of the
shares of Common Stock purchased hereunder and (iii) such time as the Investor
can sell all of its remaining shares of Common Stock purchased hereunder
pursuant to Securities Act Rule 144 in any three-month period.
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 14 OF 25
ARTICLE VII
COVENANTS OF THE INVESTOR
7.1 COMPLIANCE WITH LAW. The Investor's trading activities with respect to
shares of the Company's Common Stock will be in compliance with all applicable
state and federal securities laws, rules and regulations and rules and
regulations of any public market on which the Company's Common Stock is listed.
7.2 TRANSFER RESTRICTIONS. The Investor acknowledges that (1) the Shares,
Warrants and shares underlying the Warrants have not been registered under the
provisions of the 1933 Act, and may not be transferred unless (A) subsequently
registered thereunder or (B) the Investor's shall have delivered to the Company
an opinion of counsel, reasonably satisfactory in form, scope and substance to
the Company, to the effect that the Shares, Warrants and shares underlying the
Warrants to be sold or transferred may be sold or transferred pursuant to an
exemption from such registration; and (2) any sale of the Shares, Warrants and
shares underlying the Warrants made in reliance on Rule 144 promulgated under
the 1933 Act may be made only in accordance with the terms of said Rule and
further, if said Rule is not applicable, any resale of such Securities under
circumstances in which the seller, or the person through whom the sale is made,
may be deemed to be an underwriter, as that term is used in the 1933 Act, may
require compliance with some other exemption under the 1933 Act or the rules and
regulations of the SEC thereunder.
7.3 RESTRICTIVE LEGEND. The Investor acknowledges and agree that the
Shares, the Warrants and the shares underlying the Warrants and, until such time
as the Shares, the Warrants and the shares underlying the Warrants have been
registered under the 1933 Act and sold in accordance with an effective
Registration Statement, certificates and other instruments representing any of
the Shares, the Warrants and the shares underlying the Warrants shall bear a
restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of any such Securities):
"THE [SHARES OF COMMON STOCK][WARRANTS] 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 NEITHER SUCH
SHARES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED
OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH
RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE SECURITIES LAWS, OR (2) THE INVESTOR SHALL HAVE
DELIVERED AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE
AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT THE [SHARES OF COMMON
STOCK][WARRANTS] TO BE SOLD OR TRANSFERRED MAY BE SOLD OR TRANSFERRED
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT."
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 15 OF 25
ARTICLE VIII
CONDITIONS PRECEDENT TO THE COMPANY'S OBLIGATIONS
The obligation of the Company to consummate the transactions
contemplated hereby shall be subject to the fulfillment, on or prior to Closing
Date, of the following conditions:
8.1 NO TERMINATION. This Agreement shall not have been terminated pursuant
to Article X hereof.
8.2 REPRESENTATIONS TRUE AND CORRECT. The representations and warranties of
the Investor contained in this Agreement shall be true and correct in all
material respects on and as of the Closing Date with the same force and effect
as if made on as of the Closing Date.
8.3 COMPLIANCE WITH COVENANTS. The Investor shall have performed and
complied in all material respects with all covenants, agreements, and conditions
required by this Agreement to be performed or complied by it prior to or at the
Closing Date.
8.4 NO ADVERSE PROCEEDINGS. On the Closing Date, no action or proceeding
shall be pending by any public authority or individual or entity before any
court or administrative body to restrain, enjoin, or otherwise prevent the
consummation of this Agreement or the transactions contemplated hereby or to
recover any damages or obtain other relief as a result of the transactions
proposed hereby.
ARTICLE IX
CONDITIONS PRECEDENT TO INVESTOR'S OBLIGATIONS
The obligation of the Investor to consummate the transactions
contemplated hereby shall be subject to the fulfillment, on or prior to Closing
Date unless specified otherwise, of the following conditions:
9.1 NO TERMINATION. This Agreement shall not have been terminated pursuant
to Article X hereof.
9.2 REPRESENTATIONS TRUE AND CORRECT. The representations and warranties of
PDG ENVIRONMENTAL contained in this Agreement shall be true and correct in all
material
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 16 OF 25
respects on and as of the Closing Date with the same force and effect as if made
on as of the Closing Date.
9.1 COMPLIANCE WITH COVENANTS. PDG ENVIRONMENTAL shall have performed and
complied in all material respects with all covenants, agreements, and conditions
required by this Agreement to be performed or complied by it prior to or at the
Closing Date.
9.4 NO ADVERSE PROCEEDINGS. On the Closing Date, no action or proceeding
shall be pending by any public authority or individual or entity before any
court or administrative body to restrain, enjoin, or otherwise prevent the
consummation of this Agreement or the transactions contemplated hereby or to
recover any damages or obtain other relief as a result of the transactions
proposed hereby.
ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
10.1 TERMINATION. This Agreement may be terminated at any time prior to the
Effective Time:
10.1.1 by mutual written consent of the Investor and the
Company;
10.1.2 by the Company upon a material breach of any
representation, warranty, covenant or agreement on the part of the Investor set
forth in this Agreement, or the Investor upon a material breach of any
representation, warranty, covenant or agreement on the part of PDG ENVIRONMENTAL
set forth in this Agreement, or if any representation or warranty of PDG
ENVIRONMENTAL or the Investor, respectively, shall have become untrue, in either
case such that any of the conditions set forth in Article VIII or Article IX
hereof would not be satisfied (a "TERMINATING BREACH"), and such breach shall,
if capable of cure, not have been cured within five (5) days after receipt by
the party in breach of a notice from the non-breaching party setting forth in
detail the nature of such breach;
10.1.3 by either party, if the Closing Date is after April
30, 2004.
10.2 EFFECT OF TERMINATION. In the event of the termination of this
Agreement pursuant to Paragraph 10.1 hereof, there shall be no liability on the
party of PDG ENVIRONMENTAL or the Investor or any of their respective officers,
directors, agents or other representatives and all rights and obligations of any
party hereto shall cease, except as expressed herein, except that the Company
retains the obligations pursuant to Paragraph 11.1.
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 17 OF 25
10.3 AMENDMENT. This Agreement may be amended by the parties hereto any time
prior to the Closing Date by an instrument in writing signed by the parties
hereto.
10.3 WAIVER. At any time prior to the Closing Date, PDG ENVIRONMENTAL or the
Investor, as appropriate, may: (a) extend the time for the performance of any of
the obligations or other acts of other party or; (b) waive any inaccuracies in
the representations and warranties contained herein or in any document delivered
pursuant hereto which have been made to it or them; or (c) waive compliance with
any of the agreements or conditions contained herein for its or their benefit.
Any such extension or waiver shall be valid only if set forth in an instrument
in writing signed by the party or parties to be bound hereby.
ARTICLE XI
GENERAL PROVISIONS
11.1 TRANSACTION COSTS. Except as otherwise provided herein, each of the
parties shall pay all of his or its costs and expenses (including attorney fees
and other legal costs and expenses and accountants' fees and other accounting
costs and expenses) incurred by that party in connection with this Agreement.
11.2 INDEMNIFICATION.
11.2.1 Each Investor, severally and not jointly agrees to defend and
hold the Company (following the Closing Date) and its officers and directors
harmless against and in respect of any and all claims, demands, losses, costs,
expenses, obligations, liabilities or damages, including interest, penalties and
reasonable attorney's fees, that it shall incur or suffer, which arise out of,
result from or relate to any breach of this Agreement by such Investor or
failure by such Investor to perform with respect to any of its representations,
warranties or covenants contained in this Agreement. The Company agrees to
defend and hold the Investor harmless against and in respect of any and all
claims, demands, losses, costs, expenses, obligations, liabilities or damages,
including interest, penalties and reasonable attorney's fees, that it shall
incur or suffer, which arise out of, result from or relate to any breach of this
Agreement or failure by the Company to perform with respect to any of its
representations, warranties or covenants contained in this Agreement or in any
exhibit or other instrument furnished or to be furnished under this Agreement.
11.2.2 All claims for indemnification under this Section 11.2 must be
made within 12
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 18 OF 25
months following the Closing Date or otherwise shall be considered null and
void.
11.2.3 Neither the Investor nor the Company shall be required to make
any indemnification payments pursuant to this Section 11.2 unless and until the
claims asserted against such party exceed $50,000 after which such parties shall
be entitled to recover for damages in excess of such amount.
11.2.4 The maximum liability of the Investor, on the one hand, and the
Company, on the other, shall be the Purchase Price.
11.2.4 The indemnification obligations contained in this Section 11.2
shall be the exclusive remedy available to the parties hereto with respect to
this Agreement.
11.3 HEADINGS. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.4 ENTIRE AGREEMENT. This Agreement (together with the Schedule, Exhibits,
Warrants and documents referred to herein) constitute the entire agreement of
the parties and supersede all prior agreements and undertakings, both written
and oral, between the parties, or any of them, with respect to the subject
matter hereof.
11.5 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given (i) on the date they are
delivered if delivered in person; (ii) on the date initially received if
delivered by facsimile transmission followed by registered or certified mail
confirmation; (iii) on the date delivered by an overnight courier service; or
(iv) on the third business day after it is mailed by registered or certified
mail, return receipt requested with postage and other fees prepaid as follows:
If to PDG ENVIRONMENTAL:
-----------------------
PDG ENVIRONMENTAL, INC.
0000 Xxxxxx Xxxx, Xxxxxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Tel: 000-000-0000
Attention: Xxxx Xxxxx
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 19 OF 25
With a copy to:
--------------
Xxxxx & Xxxxxxx P.C.
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Tel: 000-000-0000
Attention: Xxxxx Xxxxxxxxx, Esq.
If to the Investor:
Xxxxxx Xxxxxx Xxxxxx
Managing Partner
Xxxxxx Partners LP
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx XX 00000
Tel 000-000-0000
11.6 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any such term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the extent
possible.
11.7 BINDING EFFECT. All the terms and provisions of this Agreement whether
so expressed or not, shall be binding upon, inure to the benefit of, and be
enforceable by the parties and their respective administrators, executors, legal
representatives, heirs, successors and assignees.
11.8 PREPARATION OF AGREEMENT. This Agreement shall not be construed more
strongly against any party regardless of who is responsible for its preparation.
The parties acknowledge each contributed and is equally responsible for its
preparation.
11.9 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Pennsylvania, without giving
effect to applicable principles of conflicts of law.
11.10 JURISDICTION. This Agreement shall be exclusively governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania. If
any action is brought among the parties with respect to this Agreement or
otherwise, by way of a claim or counterclaim, the parties agree that in any such
action, and on all issues, the parties irrevocably waive their right to a trial
by jury. Exclusive jurisdiction and venue for any such action shall be the State
Courts of Pennsylvania. In the event suit or action is brought by any party
under this Agreement to enforce
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 20 OF 25
any of its terms, or in any appeal therefrom, it is agreed that the prevailing
party shall be entitled to reasonable attorneys fees to be fixed by the
arbitrator, trial court, and/or appellate court.
11.11 PREPARATION AND FILING OF SECURITIES AND EXCHANGE COMMISSION FILINGS.
Each Investor shall reasonably assist and cooperate with the Company in the
preparation of all filings with the SEC after the Closing Date due after the
Closing Date.
11.12 THIRD PARTIES Except as disclosed in this Agreement, nothing in this
Agreement, whether express or implied, is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than the
parties hereto and their respective administrators, executors, legal
representatives, heirs, successors and assignees. Nothing in this Agreement is
intended to relieve or discharge the obligation or liability of any third
persons to any party to this Agreement, nor shall any provision give any third
persons any right of subrogation or action over or against any party to this
Agreement.
11.13 FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of any
party hereto in the exercise of any right hereunder shall impair such right or
be construed to be a waiver of, or acquiescence in, any breach of any
representation, warranty, covenant or agreement herein, nor shall nay single or
partial exercise of any such right preclude other or further exercise thereof or
of any other right.
11.14 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
and by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement. A facsimile transmission of this
signed Agreement shall be legal and binding on all parties hereto.
[SIGNATURES ON FOLLOWING PAGE]
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 21 OF 25
IN WITNESS WHEREOF, the Investor and the Company have as of the date
first written above executed this Agreement.
PDG ENVIRONMENTAL
PDG ENVIRONMENTAL, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: President & CEO
INVESTOR
XXXXXX PARTNERS LP
BY: /s/ Xxxxxx Xxxxxx Xxxxxx
-------------------------
Xxxxxx Xxxxxx Xxxxxx
Managing Partner
Xxxxxx Partners LP
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 22 OF 25
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 23 OF 25
EXHIBIT B
FIRST WARRANT
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 24 OF 25
EXHIBIT B
SECOND WARRANT
STOCK PURCHASE AGREEMENT BETWEEN
PDG ENVIRONMENTAL, INC. AND CERTAIN INVESTOR
PAGE 25 OF 25
