EXHIBIT 99.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement"), is entered into as of
June 18, 2008, by and between Environmental Service Professionals, Inc., a
Nevada corporation (the "Company"), and International Media Fund (IMF), a
Delaware corporation ("Purchaser"), with respect to the following facts:
WITNESSETH:
WHEREAS, the Company wishes to issue and sell to the Purchaser
2,155,172 units (the "Units") of the Company's securities at a price of $2.32
per Unit. Each Unit will consist of four shares of the Company's common stock
(the "Shares") and one warrant (the "Warrants") to purchase one additional share
of the Company's common stock.
WHEREAS, the Purchaser wishes to purchase said Units, on the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and agreements set forth herein, the parties hereto
agree as follows:
ARTICLE I
SALE AND PURCHASE OF UNITS
1.1 AGREEMENT TO PURCHASE AND SELL UNITS. The Company agrees to issue
and sell to the Purchaser, and the Purchaser hereby agrees to purchase from the
Company, 2,155,172 Units of the Company's securities at a price of $2.32 per
Unit. Each Unit will consist of four shares of the Company's common stock (the
"Shares") and one warrant (the "Warrants") to purchase one additional share of
the Company's common stock.
1.2 WARRANTS. Each Warrant will entitle the holder to purchase one
additional share of the Company's common stock for a period of three (3) years
from the date of issuance for a purchase price of $0.75 per share.
ARTICLE II
CLOSING AND PURCHASE PRICE
2.1 CLOSING. The closing of the sale and purchase of the Units
enumerated in Section 1.1 of this Agreement shall take place at the offices of
Xxxxxxxxxx & Associates, 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx,
Xxxxxxxxxx 00000, with a tentative date of June 25, 2008; understanding this
date may be extended due to receipt of buyers funding (such closing being called
the "Closing"). The date of the Closing is referred to as the "Closing Date."
2.2 PURCHASE PRICE. At the Closing, Purchaser shall pay to the Company
for the Units the aggregate sum of Five Million Dollars ($5,000,000) (the
"Purchase Price") by certified or cashier's check or wire transfer of
immediately available funds into one or more bank accounts designated in writing
by the Company in a single release.
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ARTICLE III
CLOSING DELIVERIES
3.1 COMPANY CLOSING DELIVERIES. At the Closing, the Company shall issue
and deliver to the Purchaser a stock certificate in the name of the Purchaser,
representing the Shares being purchased by the Purchaser at the Closing and a
warrant in the name of the Purchaser, representing the Warrants being purchased
by the Purchaser at the Closing.
3.2 PURCHASER CLOSING DELIVERIES. As payment in full for the Units
being purchased by the Purchaser at the Closing, on the Closing Date the
Purchaser shall deliver to the Company the Purchaser Price by certified or
cashier's check or wire transfer of immediately available funds into the bank
account(s) designated in writing by the Company on or prior to the Closing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
Except as set forth in the Schedule of Exceptions attached hereto as
Exhibit A, the Company hereby represents and warrants to the Purchaser that:
4.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada and has all requisite corporate power and authority to
own its properties and assets and to carry on its business as now conducted and
as presently proposed to be conducted. The Company is duly qualified to do
business as a foreign corporation in each jurisdiction where failure to be so
qualified would have a material adverse effect on its condition (financial or
otherwise), business, assets, properties or operations (a "MATERIAL ADVERSE
EFFECT").
4.2 DUE AUTHORIZATION. Each of (a) the execution and delivery by the
Company of this Agreement and the Investor Rights Agreement ("Investor Rights
Agreement") attached hereto as Exhibit B, (b) the performance by the Company of
its obligations hereunder and under the Investor Rights Agreement, and (c) the
issuance, sale and delivery by the Company of the Units, has been duly
authorized by all requisite corporate action. Each of the Agreement and the
Investor Rights Agreement is a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject,
as to enforcement of remedies, to (x) applicable bankruptcy, insolvency,
moratorium, reorganization and similar laws affecting the rights of creditors
generally, and (y) general equitable principles.
4.3 CAPITALIZATION. Immediately prior to the Closing, the authorized
capital stock of the Company will consist of the following:
(a) COMMON STOCK. One hundred million (100,000,000) shares of
common stock, par value $0.001 per share ("Common Stock"), of which
approximately 46,187,697 shares are issued and outstanding. All outstanding
shares of Common Stock have been duly authorized and validly issued, are fully
paid and nonassessable and were issued in compliance with all applicable federal
and state securities laws.
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(b) PREFERRED STOCK. One million (1,000,000) shares of
preferred stock, par value $0.001 per share ("Preferred Stock"), of which none
are issued or outstanding.
(c) OPTIONS, WARRANTS, RESERVED SHARES. The Company has
reserved Two Million One Hundred Fifty-Five Thousand One Hundred Seventy-Two
(2,155,172) shares of its Common Stock for possible issuance upon the exercise
of warrants (2,155,172). Except as set forth in Section 4.3(c) of the Schedule
of Exceptions, there are no written or, to the knowledge of the Company, oral
options, warrants, conversion privileges, preemptive rights, rights of first
refusal or other rights or agreements presently outstanding to purchase or
otherwise acquire any of the capital stock of the Company.
4.4 VALID ISSUANCE OF SHARES. The Shares, when issued, sold and
delivered in accordance with the terms of this Agreement, will be duly and
validly issued, fully paid and nonassessable, and free and clear of all claims
and encumbrances (other than those encumbrances set forth in the Investor Rights
Agreement). Based in part upon the representations of the Purchaser in this
Agreement and subject to the provisions of Section 4.9 below, the Shares will be
issued in compliance with all applicable federal and state securities laws.
4.5 SUBSIDIARIES. Except as set forth in Section 4.5 of the Schedule of
Exceptions, the Company does not presently own or control, directly or
indirectly, any interest in any other corporation, partnership, trust, joint
venture, association or other entity.
4.6 LIABILITIES. The Company has not directly or indirectly created,
incurred, assumed or guaranteed any liability except (a) for liabilities or
obligations undertaken in the ordinary course of business, or (b) as set forth
in Section 4.6 of the Schedule of Exceptions, or (c) and as set forth in the
Company's financial statements and reports filed with the Securities and
Exchange Commission.
4.7 CONTRACTS. The Company is not bound by any written or, to the
knowledge of the Company, oral material agreement, contract, lease, license,
instrument, commitment, indebtedness or liability, other than as set forth in
Section 4.7 of the Schedule of Exceptions or as set forth in the Company's
financial statements and reports filed with the Securities and Exchange
Commission (each, a "Contract"). All material provisions of the Contracts are
valid and enforceable obligations of each of the Company and, to the knowledge
of the Company, of the other parties thereto, subject, as to enforcement of
remedies, to (a) applicable bankruptcy, insolvency, moratorium, reorganization
and similar laws affecting the rights of creditors generally and (b) general
equitable principles. Except as set forth in Section 4.7(A) of the Schedule of
Exceptions, neither the Company, nor to the knowledge of the Company, any other
party (x) is in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any Contract and (y) has
been notified in writing of any claim that any Contract is not valid and
enforceable in accordance with its terms for the periods stated therein or that
there is under any such Contract any existing default or event of default or
event which, with notice or lapse of time or both, would constitute such a
default, in each case other than those defaults or claims which, if adversely
determined, would not be material under such Contract.
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4.8 LITIGATION. There is no action, suit, proceeding, claim,
arbitration or investigation ("Action") pending (or, to the Company's knowledge,
currently threatened) against the Company, that could reasonably be expected to
have a Material Adverse Effect, except as described in reports filed by the
Company with the Securities and Exchange Commission. The Company is not a party
to or subject to the provisions of any order, writ, injunction, judgment or
decree of any court or government agency or instrumentality and there is no
Action by the Company currently pending or which the Company intends to
initiate.
4.9 GOVERNMENTAL CONSENTS. All consents, approvals, orders, or
authorizations of, or registrations, qualifications, designations, declarations
or filings with, any federal, state or local governmental authority on the part
of the Company required in connection with the consummation of the transactions
contemplated herein have been or will be complied with in accordance with the
time periods required thereby. Based in part on the representations of the
Purchaser set forth in Section 5 below, the offer, sale and issuance of the
Shares and Warrants in conformity with the terms of this Agreement are exempt
from the registration and prospectus delivery requirements of the Securities Act
of 1933, as amended (the "Act").
4.10 COMPLIANCE WITH LAWS; OTHER INSTRUMENTS. To its knowledge, the
Company is not in violation of or in default under any provision of its Articles
or Bylaws, each as in effect on and as of the date hereof. To the Company's
knowledge, the Company is not in violation of any provision of any statute, law,
rule or regulation. The execution, delivery and performance of this Agreement
and the Investor Rights Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby will not result in any such default
or violation, or conflict with or constitute, with or without the passage of
time or the giving of notice or both, such a default or violation under (a) the
Company's Articles or Bylaws, (b) any Contract, or (c) any statutes, laws, rules
or regulations applicable to the Company, other than, with respect to Section
4.10(c), those defaults, violations or conflicts which, if adversely determined,
could not reasonably be expected to have a Material Adverse Effect.
4.11 TAX MATTERS. The Company has timely filed all federal, state and
local tax returns for income taxes, franchise taxes, sales taxes, withholding
taxes, property taxes and, to the Company's knowledge, all other taxes of every
kind whatsoever required by law to be filed, and all such tax returns are
complete and accurate in all material respects and in accordance with all legal
requirements applicable thereto. All taxes shown to be due and payable on such
returns, any assessments imposed, and, to the Company's knowledge, all other
taxes due and payable by the Company on or before the Closing have been paid or
will be paid prior to the time they become delinquent. The tax returns of the
Company have never been audited by appropriate governmental authorities, and the
Company does not know of any additional tax liabilities, deficiencies or
proposed adjustments for any period for which any such returns have been filed.
4.12 FINANCIAL STATEMENTS. The Company has delivered to the Purchaser
(a) its audited balance sheet as of December 31, 2006 and its audited statements
of operations, stockholders' equity and cash flows for the calendar year then
ended and (b) its unaudited balance sheet as of September 30, 2007 and its
unaudited statement of operations, stockholders' equity and cash flows for the
calendar year then ended (collectively, the "Financial Statements"). The
Financial Statements fairly present, in all material respects, the Company's
financial position as of those dates and the results of operations and changes
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in its financial position for such periods then ended, and have been prepared in
accordance with generally accepted accounting principles ("GAAP") applied on a
consistent basis, except that the unaudited Financial Statements may not contain
all footnotes required by GAAP and are subject to normal year-end adjustments.
Except as set forth in the Financial Statements and Section 4.12 of the Schedule
of Exceptions, to the Company's knowledge, the Company has no liabilities,
contingent or otherwise, other than (i) liabilities incurred in the ordinary
course of business subsequent to September 30, 2007 and (ii) obligations under
contracts and commitments incurred in the ordinary course of business and not
required under GAAP to be reflected in the Financial Statements, which, in both
cases, individually or in the aggregate, are not material to the financial
condition or operating results of the Company. The Company maintains and will
continue to maintain a standard system of accounting established and
administered in accordance with GAAP.
4.13 CHANGES. Since September 30, 2007, except as set forth in Section
4.13 of the Schedule of Exceptions or in reports filed with the Securities and
Exchange Commission, there has not been:
(a) any change in the assets, liabilities, financial condition
or operating results of the Company from that reflected in the Financial
Statements, except changes in the ordinary course of business that have not
been, or are not expected to be, in the aggregate, materially adverse;
(b) any damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the assets, properties, financial
condition or business of the Company (as such business is presently conducted);
(c) any cancellation, waiver or compromise by the Company of a
material right or of a material debt owed to it;
(d) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company, except (i) in the
ordinary course of business and (ii) that is not material to the assets,
properties, financial condition or business of the Company (as such business is
presently conducted);
(e) any change to a material contract or arrangement by which
the Company or any of its assets or properties is bound or subject;
(f) any material change in any compensation arrangement or
agreement with any employee, officer, director or stockholder;
(g) any sale, assignment, or transfer of any patents,
trademarks, copyrights, trade secrets, or other intangible assets of the
Company;
(h) any resignation or termination of employment of any
officer or key employee of the Company; and the Company does not know of any
impending resignation or termination of employment of any such officer or key
employee;
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(i) any loans or guarantees made by the Company to or for the
benefit of its employees, officers or directors, or any members of their
immediate families, other than advances made in the ordinary course of its
business;
(j) any mortgage, pledge, transfer of a security interest in,
or lien, created by the Company, with respect to any of its material properties
or assets, except liens for taxes not yet due or payable;
(k) any declaration or payment or other distribution in
respect to any of the Company's capital stock, or any direct or indirect
purchase, redemption or other acquisition of any of such stock by the Company;
(l) any sale, transfer or lease of any of the assets of the
Company, except in the ordinary course of business;
(m) any issuance or sale of any shares of the capital stock or
other securities of the Company or grant of any options with respect thereto
(other than options issued pursuant to the Company's stock option plans), or any
modification of any of the capital stock of the Company;
(n) any agreement or commitment by the Company to do any of
the things described in this Section 4.13; or
(o) to the Company's knowledge, any other event or condition
of any character that might materially and adversely affect the assets,
properties, operations, condition (financial or otherwise) or business of the
Company (as such business is presently conducted and as it is presently proposed
to be conducted).
4.14 INTELLECTUAL PROPERTY. To its knowledge, the Company owns or
possesses sufficient legal rights to all patents, trademarks, service marks,
trade names, copyrights, trade secrets, licenses, information and proprietary
rights and processes ("Proprietary Assets") necessary for its business as
presently conducted and, to the knowledge of the Company, as presently proposed
to be conducted, without, to the knowledge of the Company, any conflict with, or
infringement of, the rights of others. Except as set forth in Section 4.14 of
the Schedule of Exceptions or in reports filed with the Securities and Exchange
Commission, the Company is not bound by or a party to any options, licenses or
agreements of any kind with respect to the Proprietary Assets, nor does it
currently intend to enter into any such agreement. The Company has not received
any written communications alleging that the Company has violated or, by
conducting its business as presently proposed, would violate any Proprietary
Assets of any other person or entity.
4.15 PERMITS. To its knowledge, the Company has all material
franchises, permits and licenses necessary for the conduct of its business as
now being conducted by it ("Permits"). To its knowledge, the Company is not in
default under any Permits and neither the execution, delivery nor performance of
this Agreement or the Investor Rights Agreement or the consummation of the
transactions contemplated hereby and thereby will result in any suspension,
revocation, impairment, forfeiture or nonrenewal of any Permit.
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4.16 TITLE TO PROPERTY AND ASSETS. The Company to its knowledge has
good and marketable title to its owned properties and assets, in each case
subject to no mortgage, pledge, lien, encumbrance, security interest or charge
of any kind, other than Permitted Liens. With respect to the property and assets
it leases, the Company to its knowledge is in compliance with such leases and
the Company to its knowledge holds valid leasehold interests in such assets free
of any liens, encumbrances, security interests or claims of any party.
"Permitted Liens" means (a) mechanics', carriers', workmen's, warehousemen's,
repairmen's or other like liens arising in the ordinary course of business, (b)
liens arising under conditional sale contracts and equipment leases with third
parties entered into in the ordinary course, (c) liens for taxes and other
governmental obligations and (d) other imperfections of title, restrictions or
encumbrances, if any, which liens, imperfections of title, restrictions or other
encumbrances do not materially impair the continued use in the business of the
respective owner thereof, and operation of the specific assets to which they
relate. The Company does not own any real property.
4.17 RELATED-PARTY TRANSACTIONS. Except as set forth in Section 4.17 of
the Schedule of Exceptions or in reports filed with the Securities and Exchange
Commission, no employee, officer or director of the Company or member of his or
her immediate family is indebted to the Company, nor is the Company indebted (or
committed to make loans or extend or guarantee credit) to any such persons. To
the Company's knowledge, none of such persons has any direct or indirect
ownership interest in any firm or corporation or with which the Company has a
business relationship, or any firm or corporation that competes with the
Company, except that employees, officers or directors of the Company and members
of their immediate families may own stock in publicly-traded companies that may
compete with the Company; provided that no officer of the Company owns more than
5% in any publicly-traded company that competes with the Company. Except as set
forth on Section 4.17 of the Schedule of Exceptions or in reports filed with the
Securities and Exchange Commission, none of the officers or directors of the
Company or any members of their immediate families are, directly or indirectly,
interested in any Contract with the Company.
4.18 ENVIRONMENTAL LAWS. To the Company's knowledge, the Company is not
in violation of, nor has the Company received written notice of any potential
violation of, any applicable environmental statute, law or regulation.
4.19 EMPLOYEE BENEFIT PLANS. The Company is not a party to or bound by
any currently effective deferred compesation agreement, bonus plan, incentive
plan, profit sharing plan or retirement agreement, nor has the Company
contracted or agreed to establish any such plan. The Company does not have any
Employee Benefit Plan as defined in the Employee Retirement Income Security Act
of 1974, as amended.
4.20 INSURANCE. The Company has in full force and effect fire and
casualty insurance policies, with extended coverage, sufficient in amount
(subject to reasonable deductibles) to allow it to replace any of its properties
that might be damaged or destroyed.
4.21 SHAREHOLDER AGREEMENTS. Except as set forth in the Investor Rights
Agreement or in reports filed with the Securities and Exchange Commission, there
are no agreements or arrangements between the Company and any of the Company's
shareholders, or to the Company's knowledge, between or among any of the
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Company's shareholders, which grant special rights with respect to any shares of
the Company's capital stock or which in any way affect any shareholder's ability
or right freely to alienate or vote such shares.
4.22 USE OF PROCEEDS. Schedule 4.22 of the Schedule of Exceptions sets
forth the estimated use of funds with respect to the sale of the Units by the
Company.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to the Company that:
5.1 DUE AUTHORIZATION. Purchaser has all requisite power, authority and
approvals required to enter into, execute and deliver this Agreement and the
Investor Rights Agreement and to perform fully Purchaser's obligations hereunder
and thereunder. Purchaser has taken all actions necessary to authorize it to
enter into and perform fully its obligations under this Agreement and to
consummate the transactions contemplated herein. This Agreement is, and as of
the Closing, will be, the legal, valid and binding obligation of Purchaser,
enforceable in accordance with its terms.
5.2 NO VIOLATION. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated herein will (a) violate,
conflict with, or constitute a default under any contract or other instrument to
which Purchaser is a party or by which Purchaser or its property is bound; (b)
require the consent of any party to any material contract or other agreement to
which Purchaser is a party or by which it or its property is bound; or (c)
violate any laws or orders to which Purchaser or its property is subject.
5.3 NO BROKER. No broker, finder, agent or similar intermediary has
acted for or on behalf of Purchaser or is entitled to a fee or commission in
connection with this Agreement or the transactions contemplated hereby.
5.4 SECURITIES REPRESENTATIONS.
(a) Purchaser is able to bear the economic risk of an
investment in the Units for an indefinite period of time, can afford the loss of
the entire investment in the Units, and will, after making an investment in the
Units, have sufficient means of providing for Purchaser's current needs and
possible future contingencies. Additionally, Purchaser's overall commitment to
investments which are not readily marketable is not disproportionate to
Purchaser's net worth and this Agreement will not cause such overall commitment
to become excessive.
(b) The Units will not be sold by Purchaser without
registration under applicable securities acts or a proper exemption from such
registration.
(c) The Units are being acquired by Purchaser for Purchaser's
own account and risk, for investment purposes, and not on behalf of any other
person or with a view to, or for resale in connection with, any distribution
thereof within the meaning of the Securities Act of 1933. Purchaser is aware
that there are substantial restrictions on the transferability of the Units.
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(d) Purchaser has had access to any and all information
concerning the Company that Purchaser and Purchaser's financial, tax and legal
advisors required or considered necessary to make a proper evaluation of this
investment. The available information included all information filed by the
Company with the Securities and Exchange Commission. In making the decision to
purchase the Units herein agreed to, Purchaser and Purchaser's advisors have
relied upon their own independent investigations, and fully understand that
there are no guarantees, assurances or promises in connection with any
investment hereunder and understand that the particular tax consequences arising
from this investment in the Company will depend upon the individual
circumstances of Purchaser.
(e) Purchaser also understands and agrees that stop transfer
instructions relating to the Shares and the shares underlying the Warrants will
be placed in the Company's transfer ledger, and that the certificates evidencing
the Shares sold and shares issued upon the exercise of the Warrants will bear
legends in substantially the following form:
The Shares represented by this Certificate have not been
registered under the Securities Act of 1933 (the "Act") and
are "restricted securities" as that term is defined in Rule
144 under the Act. The securities may not be offered for sale,
sold or otherwise transferred except pursuant to an effective
registration statement under the Act or pursuant to an
exemption from registration under the Act, the availability of
which is to be established to the satisfaction of the Company.
(f) Purchaser knows that the Units are offered and sold
pursuant to exemptions from registration under the Securities Act of 1933, and
state securities law based, in part, on these warranties and representatives,
which are the very essence of this Agreement, and constitute a material part of
the bargained-for consideration without which this Agreement would not have been
executed. Purchaser agrees to indemnify and hold the Company harmless for any
damages suffered by the Company as a result of any misrepresentation or breach
of any representation or warranty of Purchaser.
(g) By reason of Purchaser's business or financial experience
or the business or financial experience of Purchaser's professional advisors,
Purchaser has the capacity to protect Purchaser's own interest in connection
with this transaction or has a pre-existing personal or business relationship
with the Company or one or more of its officers, directors or controlling
persons consisting of personal or business contacts of a nature and duration
such as would enable a reasonably prudent purchaser to be aware of the
character, business acumen and general business and financial circumstances of
such person with whom such relationship exists.
(h) Purchaser is an "accredited investor" as defined under
Rule 501 of Regulation D as promulgated under the Securities Act of 1933, as
amended.
5.5 PURCHASER COUNSEL. Purchaser acknowledges that Purchaser has had
the opportunity to review this Agreement and the Exhibits attached hereto, the
Investor Rights Agreement, the Company's reports filed with the Securities and
Exchange Commission, and the transactions contemplated hereby and thereby with
Purchaser's own legal counsel. Purchaser is relying solely on Purchaser's legal
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counsel and not on any statements or representations of the Company or any of
the Company's agents, including Xxxxxxxxxx & Associates, for legal advice with
respect to this investment or the transactions contemplated hereby or thereby.
ARTICLE VI
INDEMNIFICATION
6.1 INDEMNITY OF THE COMPANY. The Company shall indemnify and hold
harmless Purchaser from and against, and shall reimburse Purchaser with respect
to, all liabilities, losses, costs and expenses, including, without limitation,
reasonable attorneys' fees and disbursements (collectively the "Losses")
asserted against or incurred by Purchaser by reason of, arising out of, or in
connection with any material breach of any representation or warranty contained
in this Agreement made by the Company.
6.2 INDEMNITY OF THE PURCHASER. The Purchaser agree to defend,
indemnify and hold harmless the Company from and against, and to reimburse the
Company with respect to, all liabilities, losses, costs and expenses, including,
without limitation, reasonable attorneys' fees and disbursements, asserted
against or incurred by the Company by reason of, arising out of, or in
connection with any material breach of any representation or warranty contained
in this Agreement made by Purchaser.
6.3 INDEMNIFICATION PROCEDURE. A party (an "Indemnified Party") seeking
indemnification shall give prompt notice to the other party (the "Indemnifying
Party") of any claim for indemnification arising under this Article VI. The
Indemnifying Party shall have the right to assume and to control the defense of
any such claim with counsel reasonably acceptable to such Indemnified Party, at
the Indemnifying Party's own cost and expense, including the cost and expense of
reasonable attorneys' fees and disbursements in connection with such defense, in
which event the Indemnifying Party shall not be obligated to pay the fees and
disbursements of separate counsel for such in such action. In the event,
however, that such Indemnified Party's legal counsel shall determine that
defenses may be available to such Indemnified Party that are different from or
in addition to those available to the Indemnifying Party, in that there could
reasonably be expected to be a conflict of interest if such Indemnifying Party
and the Indemnified Party have common counsel in any such proceeding, or if the
Indemnified Party has not assumed the defense of the action or proceedings, then
such Indemnifying Party may employ separate counsel to represent or defend such
Indemnified Party, and the Indemnifying Party shall pay the reasonable fees and
disbursements of counsel for such Indemnified Party. No settlement of any such
claim or payment in connection with any such settlement shall be made without
the prior consent of the Indemnifying Party which consent shall not be
unreasonably withheld.
ARTICLE VII
DELIVERIES
7.1 ITEMS TO BE DELIVERED TO PURCHASER.
(a) Certificate(s) representing 8,620,690 Shares;
(b) Warrants entitling Purchaser to purchase 2,155,172 shares
of Common Stock for a period of three (3) years from the date of issuance for a
purchase price of $0.75 per share;
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(c) executed Investor Rights Agreement;
(d) any other document reasonably requested by Purchaser that
Purchaser deems necessary for the consummation of this transaction; and
(e) wire instructions.
Rabobank, N.A.
0000 X Xxxxxxxx Xxxxxx Xxx
Xxxx Xxxxxxx, XX 00000
In the Name of: ENVIRONMENTAL SERVICE PROFESSIONALS, INC.
Routing/ABA# 000000000
Account # 808547612
ESP Address:
0000 X Xxxxxxxx Xxxxxx Xxx # 000
Xxxx Xxxxxxx, XX 00000
7.2 ITEMS TO BE DELIVERED TO THE COMPANY PRIOR TO OR AT CLOSING BY
PURCHASER.
(a) any document reasonably requested by the Company that the
Company deems necessary for the consummation of this transaction; and
(b) the Purchase Price.
ARTICLE VIII
MISCELLANEOUS
8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations and warranties and statements made by a party to this Agreement
or in any document or certificate delivered pursuant hereto shall survive the
date of Closing for two years. Each of the parties hereto is executing and
carrying out the provisions of this Agreement in reliance upon the
representations, warranties and covenants and agreements contained in this
Agreement or at the closing of the transactions herein provided for and not upon
any investigation which it might have made or any representations, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth herein.
8.2 FURTHER ASSURANCES. If, at any time after the Closing, the parties
shall consider or be advised that any further deeds, assignments or assurances
in law or any other things are necessary, desirable or proper to complete the
transactions contemplated herein or to vest, perfect or confirm, of record or
otherwise, the title to any property or rights of the parties hereto, the
parties agree that their proper officers and directors shall execute and deliver
all such proper deeds, assignments and assurances in law and do all things
necessary, desirable or proper to vest, perfect or confirm title to such
property or rights and otherwise to carry out the purpose of this Agreement, and
that the proper officers and directors of the parties are fully authorized to
take any and all such action.
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8.3 NOTICE. All communications, notices, requests, consents or demands
given or required under this Agreement shall be in writing and shall be deemed
to have been duly given when delivered to, or received by prepaid registered or
certified mail or recognized overnight courier addressed to, or upon receipt of
a facsimile sent to, the party for whom intended, as follows, or to such other
address or facsimile number as may be furnished by such party by notice in the
manner provided herein:
If to the Company:
Environmental Service Professionals, Inc.
0000 Xxxx Xxxxxxxx Xxxxxx Xxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Purchaser:
International Media Fund
000 Xxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX. 00000
Attention: Xxxxx Xxxx, Chief Executive Officer
Telephone: (000) 000-0000 xxx 000
Facsimile: (000) 000-0000
8.4 ENTIRE AGREEMENT. This Agreement, and any instruments and
agreements to be executed pursuant to this Agreement, sets forth the entire
understanding of the parties hereto with respect to the Agreement's subject
matter, merges and supersedes all prior and contemporaneous understandings with
respect to its subject matter and may not be waived or modified, in whole or in
part, except by a writing signed by each of the parties hereto. No waiver of any
provision of this Agreement in any instance shall be deemed to be a waiver of
the same or any other provision in any other instance. Failure of any party to
enforce any provision of this Agreement shall not be construed as a waiver of
its rights under such provision.
8.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon,
enforceable against and inure to the benefit of, the parties hereto and their
respective heirs, administrators, executors, personal representatives,
successors and assigns, and nothing herein is intended to confer any right,
remedy or benefit upon any other person.
8.6 GOVERNING LAW AND VENUE. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California, excluding
its choice of law rules. The parties consent to jurisdiction in the Federal and
state courts of California shall for all actions arising under or in connection
with this Agreement.
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8.7 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.8 CONSTRUCTION. Headings contained in this Agreement are for
convenience only and shall not be used in the interpretation of this Agreement.
As used herein, the singular includes the plural, and the masculine, feminine
and neuter gender each includes the others where the context so indicates.
8.9 SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, this Agreement
shall be interpreted and enforceable as if such provision were severed or
limited, but only to the extent necessary to render such provision and this
Agreement enforceable.
8.10 CONFIDENTIALITY AND NON-DISCLOSURE. Each party hereto agrees to
use its best efforts to insure that its authorized representatives use the same
degree of care as such party uses to protect its own confidential information to
keep confidential any information furnished to it which any other party
identifies as being confidential or proprietary (so long as such information is
not in the public domain), except that Purchaser may disclose such proprietary
or confidential information to any subsidiary or parent of Purchaser for the
purpose of evaluating its investment in the Company as long as such subsidiary
or parent is advised of the confidentiality provisions of this Section 8.10.
8.11 "KNOWLEDGE." Whenever any representation or warranty of the
Company contained in this Agreement or in any certificate or other document
delivered in connection with this Agreement is qualified to the "knowledge" of
the Company, such qualification shall mean the actual knowledge of the officers
of the Company.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first set forth above.
COMPANY: Environmental Service Professionals, Inc.
By:/s/Xxxxxx Xxxxxx
--------------------------------------------
Xxxxxx Xxxxxx, Chief Executive Officer
PURCHASER: International Media Fund
By:/s/Xxxxx Xxxx
---------------------------------------------
Xxxxx Xxxx, Chief Executive Officer
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