Exhibit 10.102
STOCK POWER, XXXX OF SALE AND ASSIGNMENT
THIS AGREEMENT is made as of this the 1st day of November, 2002, from
APSC, INC., a Delaware corporation (hereinafter referred to as "APSC"), for the
benefit of ECO SYSTEMS HOLDINGS, LLC, a Mississippi limited liability company
(hereinafter referred to as the "Purchaser").
W I T N E S S E T H:
WHEREAS, APSC is the owner of three hundred thousand one hundred
(300,100) shares of capital stock in APS Consulting, Inc., a Texas corporation,
d/b/a Eco Systems Consulting (the "Company") constituting all of the issued and
outstanding shares of capital stock of the Company;
WHEREAS, APSC desires to transfer and assign to Purchaser all of the
APSC's right, title and interest in and to such shares of capital stock of the
Company, and Purchaser desires to accept such assignment and transfer.
NOW, THEREFORE, for and in consideration of the sum of One Hundred and
No/100 Dollars ($100.00) and other good and valuable consideration in hand paid
and delivered by Purchaser to APSC, the receipt and sufficiency of which are
hereby acknowledged, APSC hereby agrees as follows:
1. Assignment: APSC has assigned, transferred, sold and conveyed, and
by these presents does hereby assign, transfer, grant, bargain, sell and convey,
to Purchaser, its successors and assigns, all of the issued and outstanding
shares of capital stock of the Company (the "Shares"), including without
limitation, Certificate No. 1 for one hundred (100) shares of capital stock of
the Company and Certificate No. 2 for three hundred thousand (300,000) shares of
capital stock of the Company.
TO HAVE AND TO HOLD the Shares unto Purchaser, its successors and
assigns, as set forth above forever.
APSC does hereby irrevocably constitute and appoint any officer of the
Company the attorney-in-fact of the undersigned to transfer the Shares on the
books of the Company with full power of substitution in the premises.
2. Warranty of Title: APSC does hereby warrant that the Shares are free
and clear of any and all liens, pledges, security interests, claims, judgments,
rights of spouses or other family members, rights of third parties and other
encumbrances of every kind and nature whatsoever, whether arising by agreement,
operation of law or otherwise, and not subject to any of the provisions of, any
shareholders' agreement, agreement restricting sale or transfer, repurchase or
redemption agreement, buy-sell agreement, option agreement, proxy agreement,
voting trust or similar arrangement, or any other agreement or arrangement
relating to the Shares or affecting the rights of the holders thereof, including
any of the foregoing which would preclude or require the consent of any person
to the transfer pursuant to this Agreement or that gives or might give any
person any right to or interest in the Shares.
3. Other Warranties and Representations: Except as set forth on Exhibit
"A" attached hereto and incorporated herein by reference, APSC hereby further
warrants and represents to Purchaser that:
a. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Texas and has all necessary powers to own,
lease and operate its assets and properties and to
carry on the business now being conducted by it. The
Company is qualified or registered to do business in
the State of Alabama and the State of Mississippi.
b. The total number of shares of capital stock which the
Company is authorized to issue is one million
(1,000,000) shares, all of which are classified as
common stock, par value $0.01 per share, and the
Company is not authorized to issue shares of capital
stock of any other class. Three hundred thousand one
hundred (300,100) of such shares are issued and
outstanding as of the date hereof, all of which have
been validly issued and are fully paid and
nonassessable, and constitute the Shares as that term
is defined herein.
c. APSC owns all of the Shares issued and outstanding.
APSC has the complete and unrestricted power and
authority to sell, transfer and assign to Purchaser
the Shares as provided in this Agreement.
d. The stock transfer records of the Company accurately
and completely show and disclose all issuances,
transfers, repurchases, redemptions, cancellations
and other transactions involving shares of capital
stock of the Company. As of the date hereof, APSC is
shown on the stock transfer records of the Company as
the owner of record of the Shares. No shares of any
corporation or any ownership or other investment
interest, either of record, beneficially or
equitably, in any association, partnership, joint
venture or other legal entity are owned or held by
the Company.
e. APSC has the full legal right and authority to enter
into this Agreement and to consummate the transfer
contemplated herein. Upon execution and delivery of
this Agreement, this Agreement will constitute the
legal, valid and binding obligation of APSC,
enforceable against APSC in accordance with the terms
of this Agreement.
f. The execution, delivery and performance of this
Agreement by APSC does not and will not violate,
conflict with or result in the breach of any term,
condition or provision of, or require the consent of
any other person under, (a) to the knowledge of APSC,
any existing law, ordinance, or governmental rule
or regulation to which APSC or the Company is
subject, (b) to the knowledge of APSC, any
judgment, order, writ, injunction, decree or award
of any court, arbitrator or governmental or
regulatory official, body or authority which is
applicable to APSC or the Company, (c) the
charter documents of the Company, or (d) any
mortgage, indenture, agreement, contract, commitment,
lease, plan, or other instrument, document or
understanding, oral or written, to which APSC or
(to the knowledge of APSC) the Company is a party,
by which APSC or (to the knowledge of APSC) the
Company may have rights, or give any party with
rights thereunder the right to terminate, modify,
accelerate or otherwise change the existing rights
or obligations of APSC or (to the knowledge of
APSC) the Company thereunder.
g. APSC has not received notice of any suits, actions,
arbitrations or other legal, administrative or other
proceedings pending or threatened against or
affecting the assets, business or operations of the
Company, other than an action involving Xxxxxxx
Environmental, Inc.
h. APSC has not, without the knowledge of either Xxxx
Xxxxx or Xxxxx Xxxxxxx, caused the Company to incur
any material liabilities or obligations (whether
absolute, contingent or otherwise) relating to its
business or assets (including any obligations or
liabilities to APSC or its affiliates), except
liabilities or obligations incurred in the ordinary
course of business.
i. To APSC's knowledge, since January 1, 2002, the
Company has not authorized any distributions with
respect to its shares or any changes in its capital
or financial structure, including without limitation
by: (a) declaring or paying any dividends, or making
any other distributions, to its shareholders, except
for a dividend of $143,038 declared effective as of
September 30, 2002; (b) redeeming or agreeing to
redeem any of its shares; or (c) issuing or agreeing
to issue any additional shares of capital stock of
any class.
4. APSC Indemnification: APSC shall, and does hereby agree that it will
protect, defend and hold harmless, the Purchaser (which for purposes of this
Section shall include the Company, and its employees, and agents) and its
successors and assigns (the "Indemnitees") at all times from and against any and
in respect to any and all damages, as hereinafter defined. Damages, as used
herein, shall include any claims, actions, demands, losses, costs, expenses,
obligations, liabilities (joint or several), penalties, charges and damages
(including without limitation, reasonable legal, accounting, consulting,
engineering, and other fees and expenses) incurred in investigating or in
attempting to avoid the same or oppose the imposition thereof that may be
imposed or incurred by, or assessed against any of the Indemnitees by or any
other party or parties (including, without limitation, any governmental entity)
arising out of, or in connection with any breach by APSC of any of the
representations, warranties, covenants and agreements of APSC contained in this
Agreement. Notwithstanding the provisions of this Section or any other provision
of this Agreement, (a) APSC and its affiliates shall not be liable for, and
Purchaser will not (and will ensure that its affiliates do not) assert any claim
against APSC or its affiliates based on, any event or circumstance that creates
or constitutes a breach of one of the representations or warranties made by APSC
in this Agreement if (i) such event or circumstance is or was caused or created
by Purchaser or its affiliates, or (ii) either Xxxx Xxxxx or Xxxxx Xxxxxxx had
knowledge of such event or circumstance on the date hereof; and (b) the total of
all obligations that may arise under this Section and all other provisions of
this Agreement (excluding obligations under Section 5) cannot in the aggregate
exceed one hundred thousand dollars ($100,000).
5. Tax Considerations: As used in this Section, "Tax Return" means any
return, report, claim for refund, or information return or statement relating to
Taxes required to be filed by the Company with any governmental body, including
any schedule or attachment thereto, and including any amendment thereof, and
"Taxes," means any and all federal, state, foreign and local income, sales, use,
franchise, excise, real and personal property, employment (including FICA and
other payroll) or any other tax liabilities or similar charges of every kind and
nature (including, without limitation, any penalties and/or interest) of or
incurred by the Company. APSC shall file and be solely responsible for all Tax
Returns required by law to be filed for all periods ending on or before close of
business on October 31, 2002 ("Pre-Transition Tax Returns") and all Taxes
pursuant to any Pre-Transition Tax Return. Purchaser shall file all Tax Returns
required by law to be filed for all periods ending after close of business on
October 31, 2002, even if such period includes such date or times prior to such
date ("Post-Transition Tax Returns") and all Taxes pursuant to any
Post-Transition Tax Return to the extent such Taxes are not attributable to the
operations of the Company prior to such date. Despite Purchaser's preparation of
any Post-Transition Tax Return, APSC is solely responsible for all Taxes
attributable to the operations of the Company before close of business on
October 31, 2002. Each of APSC and Purchaser is entitled to receive notice of
and participate in any proceeding concerning any actual or alleged Taxes for
which it is responsible under to this Section. Each of the parties to this
Agreement acknowledge the existence of a tax sharing agreement between the
Company and APSC (or an affiliate of APSC) (the "Tax Sharing Agreement"). The
parties agree that the Tax Sharing Agreement will terminate as a result of this
Agreement, and that the terms and effect of the Tax Sharing Agreement shall be
construed in a manner consistent with the provisions of this Section.
6. Use of Name: APSC agrees that, from and after the date of this
Agreement, it will not use, or contest Purchaser's use of, the name "Eco
Systems"; provided, however, that APSC may use the name as a means of referring
to the disposition of its interest in the Company in connection with its public
filings or in similar instances. APSC further hereby assigns any and all rights
that it may have in or to the name "Eco Systems" or the use thereof, BUT APSC
MAKES NO WARRANTIES, EXPRESS OR IMPLIED, THAT IT POSSESSES ANY SUCH RIGHTS, THAT
SUCH RIGHTS CAN BE ASSIGNED, OR THAT, IF ASSIGNED, THE COMPANY WILL HAVE THE
SOLE OR ANY RIGHT TO USE THE NAME.
7. Miscellaneous:
(a) This Agreement and the covenants, warranties and
representations herein contained shall be binding
upon and shall inure to the benefit of Purchaser and
its successors and assigns.
(b) The covenants and agreements herein contained shall
be binding upon and inure to the benefit of the
Purchaser, its successors and assigns.
(c) Words of any gender used in this Agreement shall be
held to include any other gender, and words in the
singular number shall be held to include the plural,
and vice-versa when the context requires.
(d) The captions or titles used throughout this Agreement
are for reference and convenience only and shall in
no way define, limit or describe the scope of intent
of this Agreement.
(e) This Agreement shall be construed without regard to
any presumption of other rule requiring construction
against the party causing this Agreement to be
drafted. If any words or phrases in this Agreement
shall have been stricken or otherwise eliminated,
whether or not any other words or phrases have been
added, this Agreement shall be construed as if the
words or phrases so stricken or eliminated were never
included in this Agreement and no implication or
reference shall be drawn from the fact that said
words or phrases were so stricken or otherwise
eliminated.
(f) Irrespective of the place of execution, it is the
intention of the parties that the laws of the State
of Texas should govern the validity of this
Agreement, the construction of its terms and the
interpretation of the rights and duties of the
parties.
[SIGNATURE PAGE TO FOLLOW]
[Signature Page to Stock Power, Xxxx of Sale and Assignment]
IN WITNESS WHEREOF, the duly authorized representative of APSC has
caused this Assignment to be signed, sealed and delivered as of the day and year
first above written.
APSC:
APSC, Inc.
By:
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Name:
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As Its:
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EXHIBIT "A"
to
Stock Power, Xxxx of Sale and Assignment
