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EXHIBIT 10.2
CONTINGENT STOCK PURCHASE AGREEMENT
This CONTINGENT STOCK PURCHASE AGREEMENT ("Contingent Agreement") was
entered into on December 11, 1997, by Xxxxxx General Corporation ("Xxxxxx"), a
publicly traded California corporation and Environmental Systems Corporation
("ESC"), a Tennessee corporation.
WITNESSETH
WHEREAS, this Contingent Agreement has been entered into
contemporaneously with the PRIMARY STOCK PURCHASE AGREEMENT ("Primary
Agreement") between Xxxxxx and Xxxxx X. Xxxxx on the one hand and between Xxxxxx
and Xxxxx Xxxxxxxx for the purchase by Xxxxxx of all of their common stock of
Advanced Tank Certification, Inc. ("ATC"). ATC is a Tennessee corporation;
WHEREAS, this Contingent Agreement is wholly contingent upon the Primary
Agreement being executed and performed. Otherwise, this Contingent Agreement
shall be invalid, non-binding, unenforceable, and of no consequence;
WHEREAS, ESC owns exactly eight hundred and seventy (870.0) shares, no
more and no less, of the common stock of ATC;
WHEREAS, the eight hundred and seventy (870) shares of the common stock
of ATC owned by ESC comprise eight and six thousand and thirty-five ten
thousandths (8.6035) per cent (%) of the total of ten thousand, one hundred and
twelve and one-tenth (10,112.1) shares of ATC stock which have been issued;
WHEREAS, Xxxxxx desires to purchase all of said eight hundred and
seventy (870) of said shares of common stock of ATC from ESC upon the terms and
subject to the conditions
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hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, agreements and conditions contained herein, Xxxxxx
and ESC hereby agree as follows:
ARTICLE I
Purchase and Sale
Section 1.1. The Sale. Upon the terms and subject to the conditions of
this Contingent Agreement, at the Closing (as defined in Article II), ESC will
sell, assign, transfer, and deliver its eight hundred and seventy (870) shares
of the stock of ATC to Xxxxxx.
Section 1.2. Purchase Price. The total purchase price for all of the
common stock of ATC shall be $3,300,000.00. The purchase price to be paid to ESC
for its eight and six thousand and thirty-five ten thousandths per cent
(8.6035%) of the total of issued ATC stock shall be eight and six thousand and
thirty-five ten thousandths per cent (8.6035%) of the total purchase price
($3,300,000.00), viz., $283,915.78. THE $283,915.78 shall be paid to ESC by
Xxxxxx at Closing by wire transfer in immediately available funds to an account
designated in writing by ESC at or before Closing.
ARTICLE II
Closing
The closing of the transactions contemplated hereby (the "Closing")
shall occur at such time, date and location as mutually agreed to by Xxxxxx,
ESC, and the parties to the Primary Agreement (but in no event later than 11:00
a.m., December 15, 1997).
ARTICLE III
Representation and Warranties of ESC
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Section 3.1. Organization and Good Standing of ESC. ESC is a Tennessee
corporation duly organized, validly existing and in good standing under the laws
of Tennessee and has full corporate power and authority to sell its previously
referenced eight hundred and seventy (870) shares of ATC stock to Xxxxxx.
Section 3.2. Authorization. ESC has full corporate power and authority
under its certificate or articles of incorporation and by-laws, and all
necessary corporate action has been taken to authorize it to execute and deliver
this Contingent Agreement, to consummate the transactions contemplated herein
and to take all actions required to be taken by it. This Contingent Agreement
constitutes a valid and binding obligation on ESC enforceable against ESC in
accordance with the terms of this Contingent Agreement, except as such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
and general principles of equity.
Section 3.3. Non-Contravention. The execution and delivery of this
Contingent Agreement or any documents executed in connection herewith, the
consummation of the transaction contemplated herein or therein will not violate
conflict with, result in breach of or require notice or consent under any
applicable law, the charter or by-laws of ESC or any provision of any agreement
or instrument to which ESC s a party or result in the creation of any lien or
other encumbrance upon the eight hundred and seventy (870) shares of ATC stock
which are the subject of this Contingent Agreement. No consent, approval
exemption, authorization or other action of, or notice to or filing with, any
third party, court or administrative or other governmental or regulatory body is
required of ESC to execute, deliver or perform this Contingent Agreement and to
consummate the transactions contemplated herein and to take all
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actions required to be taken by ESC pursuant to the provisions hereof.
Section 3.4. Validity. There are no pending or threatened judicial or
administrative actions, proceedings or investigations which question the
validity of this Contingent Agreement or any action take or contemplated by ESC
in connection with this Contingent Agreement.
Section 3.5. Successors and Assigns. This Contingent Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors, legal representatives and assigns. No third party shall
have any rights hereunder.
Section 3.6. Broker Involvement. ESC has not hired, retained or dealt
with any broker or finder in connection with the transactions contemplated by
this Contingent Agreement.
Section 3.7. Expenses. ESC shall pay its expenses, including the fees
and disbursements of its respective counsel in connection with the negotiation,
preparation and execution of this Contingent Agreement and the consummation of
the transactions contemplated herein.
Section 3.8. Title to Shares. ESC owns the previously referenced eight
hundred and seventy (870) shares, which represent 8.6035% of the outstanding
shares of ATC stock, beneficially and of record, free and clear of all liens,
and such shares are not, or will not be prior to Closing, subject to any
agreements or understandings with respect to the voting or transfer of any of
the shares. There are no outstanding subscriptions, options, convertible
securities, warrants or calls of any kind issued or granted by, or binding on
ESC to sell or otherwise dispose of any security of or equity interest in its
previously reference eight hundred and seventy (870) shares of ATC stock. ESC
has the requisite legal right to sell, assign and transfer the ATC shares
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owned by ESC to Xxxxxx and will upon delivery of a certificate or certificates
representing such shares to Xxxxxx pursuant to the terms hereof, transfer to
Xxxxxx title to such shares, free and clear of any liens.
Section 3.9. Non-Use of Confidential Information. ESC is not in
possession of any confidential or proprietary information of ATC, and agrees not
to use any such information.
ARTICLE IV
Entire Agreement
This Contingent Agreement constitutes the entire agreement between
Xxxxxx and ESC and supersedes any prior oral or written agreements with respect
to the subject matter hereof, any may not be modified, amended or terminated
except by a written instrument specifically referring to this Contingent
Agreement signed by all the parties hereto.
ARTICLE V
Waivers and Consents
All waivers and consents given hereunder shall be in writing. No waiver
by any party hereto of any breach or anticipated breach of any provision hereof
by any other party shall be deemed a waiver of any other contemporaneous,
preceding or succeeding breach or anticipated breach, whether or not similar.
ARTICLE VI
Notices
All notices and other communications hereunder shall be in writing and
shall be deemed to have been received only if and when (a) personally delivered
(b) if mailed, on the third day after mailing, by United States mail, first
class, postage prepaid, by certified mail, return receipt requested, addressed
in each case as follows (or to such other address as may be specified by like
notice) or (c) delivered by overnight courier or facsimile:
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IF TO XXXXXX, TO:
Xxxxxx General Corporation
c/o USTMAN Industries, Inc.
00000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: President
IF TO ESC, TO:
Environmental Systems Corporation
000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: President
IN WITNESS WHEREOF, the parties hereto have executed this Contingent Agreement
on the date first above written.
XXXXXX GENERAL CORPORATION
By:
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Xxx X. Xxxx President
ENVIRONMENTAL SYSTEMS CORPORATION
By:
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Xxxx X. Xxxxxxxx President,
Chief Executive Officer and
Chairman of the Board of Directors
