Exhibit 10.10
BUY-BACK AGREEMENT
This BUY-BACK AGREEMENT (the "Buy-Back Agreement"), dated as of the
31st day of December, 2002, by and among CORPORATE VISION, INC., an
Oklahoma corporation (the "Purchaser"), XXXXXXX X. XXXXXX, an individual
(hereinafter the "Holder"), and STONY'S TRUCKING CO. ("Stony's").
R E C I T A L S
A. Purchaser, Holder, Stony's Acquisition Corp. ("SAC"),
Stony's, and subsidiaries of Stony's entered into an Agreement and Plan
of Merger and Reorganization on the 5th day of March 2002 (the
"Agreement"), pursuant to which SAC was merged with and into Stony's,
with Stony's surviving as the surviving corporation (hereinafter, the
"Merger").
B. Prior to the Merger, the Holder was the owner and holder of
100 shares (hereinafter, the "Original Stony's Shares") of no par value
common stock of Stony's, being all of the issued and outstanding shares
of common stock of Stony's, and the Purchaser was the holder of 100
shares of no par value common stock of SAC, being all of the issued and
outstanding common stock of SAC.
C. As a result of the Merger, the Holder became entitled to
receive, as the sole holder of the Original Stony's Shares, Twenty
Million (20,000,000) shares of the Purchaser's common stock (plus any
additional shares of Company common stock issued or issuable to Holder
pursuant to Section 2.13 of the Agreement) (hereinafter the "CVIA Common
Stock"), Fifty Thousand Dollars ($50,000) cash, and a Cognovit Promissory
Note in the original principal amount of $150,000 payable by the
Purchaser to the Holder sixty days after the Closing (as defined in the
Agreement) (collectively referred to hereinafter as the "Paid
Consideration"),
D. As a result of the Merger, the Purchaser received, as the
sole holder of all issued and outstanding shares of common stock of SAC,
100 shares of common stock of Stony's (the "Stony's Shares"), which
shares constitute all of the issued and outstanding shares of Stony's
common stock following the Merger.
E. Purchaser, Stony's and GJG Management, LLC ("GJG") entered
into a Management and Operations Agreement, dated March 5th 2002 (the
"Management Agreement"), whereby GJG will provide, among other things,
management and operational support services to Stony's for a term to
expire December 31, 2002 (the "Term").
F. Purchaser, Stony's, GJG and Holder have entered into a
Extension and Modification of Management and Operations Agreement (the
"Extension Agreement") of even date herewith, wherein, among other
things, the Term of the Management Agreement is extended until December
31, 2007.
G. As a condition precedent to entering into the Extension
Agreement, Purchaser agreed to xxxxx Xxxxxx the option to purchase ("Buy-
Back") the "Stony's Shares" pursuant to the Merger on the terms and
conditions set forth herein, and Purchaser is willing to do so.
H. The Stony's Shares shall hereinafter be deposited with a
mutually agreeable escrow agent. (hereinafter, the "Escrow Agent") for
the purpose of implementing the rights to Buy-Back granted herein.
A G R E E M E N T S
In consideration of the foregoing Recitals and of the mutual covenants
herein contained, Purchaser and Holder hereby agree as follows:
1. Buy-Back.
(a) Purchaser hereby grants to Holder the right to Buy-Back
the Stony's Shares on the terms set forth in this Buy-Back Agreement upon
providing seven (7) days prior written notice to Purchaser of his
election to do so at the principal office of the Purchaser, at 0 Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx Xxxxxxxx, 00000, or at such other
place as the Purchaser may designate by notice to the Holder, together
with the Paid Consideration. The right to Buy-Back granted hereunder may
only be exercised in whole as to the Stony's Shares.
(b) Holder's right to Buy-Back the Stony's Shares may be
exercised at any time within three (3) months after the date the
Purchaser terminates the Management Agreement regardless of the reason,
provided that in no event may the Buy-Back be exercised after December
31, 2007, and further provided that the Holder's right of Buy-Back shall
be subject to early termination for the reasons set forth in Sections
1(c) or 1(d) herein (the "Exercise Term").
(c) The Holder's right to Buy-Back shall become void and
may not be exercised at any time if the Fair Market Value of Purchaser's
common stock (as defined in the Agreement) is equal to or above Fifty
Cents ($.50) per share for a period of twenty-one (21) consecutive days
prior to December 31, 2007.
(d) The Holder's right to Buy-Back shall terminate if (i)
the pending litigation involving the royalty payable pursuant to
Paragraph 4(b) of that Binder Product Technology License Agreement dated
April 7, 1998 (the "Royalty"), a portion of which has been assigned to
the Purchaser, is resolved by final judgment or settlement on a basis
that would result, in the good faith determination of the Purchaser based
on the amount disbursed to the Purchaser from the escrowed Royalty
payments, in total payments to the Purchaser from the Royalty of at least
$1,750,000, and (ii) Xxxxxx is paid $164,735 cash in satisfaction of
those certain waste transportation containers previously purchased by
Xxxxxx for CVIA, and or its subsidiaries;
2. Procedures for Exercise of Buy-Back. Holder's right to Buy-
Back herein shall be effectuated by notifying, pursuant to the notice
provisions herein, the Purchaser in writing of its intention to Buy-Back
the Stony's Shares, which writing shall be simultaneously delivered to
the Escrow Agent, whomever that shall be. In the event the right to Buy-
Back is being exercised by the Holder, the notice must be accompanied by
the Paid Consideration in order to be valid. The Buy-Back of the Stony's
Shares shall be deemed to have been occurred, and Holder shall be deemed
to have become a holder of record of all of the Stony's Shares, as of the
date of the notice of Buy-Back, notwithstanding that the certificates
representing such Stony's Shares shall not actually have been delivered,
or that the transfer shall not have been reflected on the stock transfer
books of Stony's. For purposes of this Agreement, the "Paid
Consideration" shall mean the CVIA Common Stock, $50,000 cash, and any
amount actually received by the Holder on the Cognovit Promissory Note,
less any monies owed by the Purchaser to Holder on the date of the Buy-
Back other than amounts owed under the Cognovit Promissory Note.
3. Liquidation or Dissolution. In case the Purchaser dissolves
or liquidates, the Purchaser shall make appropriate provision so that the
Stony's Shares which would be received by the Holder upon the exercise of
his rights hereunder at the time immediately prior to the effective date
of such dissolution or liquidation will be available to the Holder from
the liquidating trust; provided that the Holder shall make the
determination as to whether to exercise his right of Buy-Back within six
(6) months of the effective date of dissolution or liquidation, at which
time this Buy-Back Agreement shall be terminated and of no further force
or effect and the Holder's rights under this Buy-Back Agreement shall be
automatically terminated.
4. No Impairment. The Purchaser shall at all times in good
faith assist in the carrying out of all such terms and in the taking of
all such actions as may be necessary or appropriate to protect the rights
of the Holder against impairment.
5. Remedies. The parties stipulate that the remedies at law of
either in the event of any default or threatened default by the other in
the performance of or compliance with any of the terms of this Buy-Back
Agreement are not and will not be adequate and that, without limiting any
other remedy available at law, such terms may be specifically enforced by
a decree for the specific performance of any agreement contained herein
or by an injunction against a violation of any of the terms hereof. The
rights and remedies of the parties are cumulative and not exclusive of
any rights or remedies that the parties might otherwise have.
6. Survival. The various rights and obligations of the parties
as set forth herein shall survive the exercise of this Buy-Back Agreement
at any time or from time to time.
7. Notices. Whenever any notice, payment of any purchase price
or other communication (any such notice, payment or other communication,
a "Delivery") is required to be given or delivered under the terms of
this Buy-Back Agreement, it shall be in writing and delivered by hand
delivery or Federal Express or registered or certified United States
mail, postage prepaid and return receipt requested, and will be deemed to
have been given or delivered on the date such notice, purchase price or
other communication is so delivered. Any Delivery to the Purchaser, shall
be addressed to 0 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx Xxxxxxxx
00000, or to such other address as the Purchaser may hereafter designate
to the Holder in writing, with a copy to Xxxxxx X. Xxxxxxx, Esq.,
Xxxxxxxxxxx, Xxxx, Xxxxxxx & Xxxxxx, P.C., 0000 Xxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000; any Delivery to the Holder shall be
addressed to 000 XxXxxxx Xxxx, Xxxxxxxxxx, Xxxx 00000, or to such other
address as the Holder may hereafter designate to the Purchaser in
writing.
8. Change; Waiver. Neither this Buy-Back Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, but only
by an instrument in writing signed by the party against which enforcement
of the change, waiver, discharge or termination is sought. No failure or
delay of a party in exercising any power or right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power.
9. Covenants to Bind Successor and Assigns. The terms of this
Buy-Back Agreement shall bind the successors and permitted assigns of the
Holder and the Purchaser.
10. Severability. In case any one or more of the provisions
contained in this Buy-Back Agreement shall be invalid, illegal or
unenforceable in any respect, the validity, legality or enforceability of
the remaining provisions contained herein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good faith
negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
11 General. Stony's and the Purchaser represent and warrant to
the Holder that, upon the consummation of the transactions contemplated
under the Agreement, the Stony's Shares represent all of the issued and
outstanding shares of common stock of Stony's, that the Purchaser is the
owner and holder of the Stony's Shares, that the Stony's Shares are free
and clear of all liens, claims and encumbrances (as defined under the
Agreement), that this Buy-Back Agreement does not violate the terms of
any agreement, contract, judgment or lien affecting or relating to the
Purchaser or Stony's. The Purchaser agrees that it will not transfer,
assign, pledge, hypothecate or convey the Stony's Shares in any manner
prior to the expiration date of this Buy-BAck Agreement without the
express written consent of the Holder. The Purchaser agrees that any
additional shares of common stock issued to it in Stony's after the date
of this Buy-Back Agreement shall be considered Stony's Shares as if such
shares were outstanding on the date of this Buy-Back Agreement. Stony's
agrees that it will not issue any additional shares of its common stock
to any person after the date of this Buy-Back Agreement without the
express written consent of the Holder.
IN WITNESS WHEREOF, the parties hereto have duly executed this Buy-
Back Agreement as of the date first above written.
THE PURCHASER
WITNESS: CORPORATE VISION, INC.
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------- -----------------------------
Name: Xxxxxxx Xxxxxx Xxxxxxx X. Xxxxxx, Chairman
THE HOLDER
WITNESS: XXXXXXX X. XXXXXX
By: /s/ Xxxxx Xxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------- ------------------------------
Name: Xxxxx Xxxx
STONY'S
WITNESS: STONY'S TRUCKING CO.
By: /s/ Xxxxx Xxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxx Xxxx Xxxxxxx X. Xxxxxx, Pres./CEO
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