EXHIBIT 2.8
STOCK REDEMPTION AND PURCHASE AGREEMENT
THIS STOCK REDEMPTION AND PURCHASE AGREEMENT (THE "AGREEMENT") IS MADE
AS OF THE 27TH DAY OF JUNE, 1997, BY AND AMONG INNOVATIVE VALVE TECHNOLOGIES,
INC., A DELAWARE CORPORATION ("INVATEC"), AND XXX XXX XXXXXX ("XXXXXX"), A
RESIDENT OF TEXAS, XXXXX XXXXXXX, A RESIDENT OF ALABAMA ("XXXXXXX"), AND XXXXXX
XXXXXX ("XXXXXX"), A RESIDENT OF TEXAS (JORDAN, XXXXXXX AND XXXXXX BEING
COLLECTIVELY REFERRED TO AS THE "SELLERS") AND 55 LEASING & SALES, INC., AN
ALABAMA CORPORATION ("55 LEASING"). INVATEC, 55 LEASING AND THE SELLERS ARE
SOMETIMES HEREINAFTER REFERRED TO HEREIN COLLECTIVELY AS THE "PARTIES" OR
SINGULARLY AS A "PARTY."
W I T N E S S E T H:
WHEREAS, THE SELLERS OWN ALL OF THE SHARES (THE "SHARES") OF COMMON
STOCK (THE "COMMON STOCK") OF 55 LEASING WHICH SHARES REPRESENT ALL OF THE
ISSUED AND OUTSTANDING SHARES OF THE COMMON STOCK; AND
WHEREAS, INVATEC HAS CONCURRENTLY ENTERED INTO AN AGREEMENT AND PLAN OF
REORGANIZATION (THE "SOUTHERN VALVE AGREEMENT") BY AND AMONG SVSI ACQUISITION
INC., A DELAWARE CORPORATION AND A WHOLLY OWNED SUBSIDIARY OF INVATEC , SOUTHERN
VALVE SERVICE, INC., AN ALABAMA CORPORATION (THE "SOUTHERN VALVE"), AND THE
STOCKHOLDERS OF SOUTHERN VALVE (THE PRINCIPAL STOCKHOLDER OF WHICH IS JORDAN)
FOR THE PURPOSE OF INVATEC ACQUIRING SOUTHERN VALVE, AND A SUBSTANTIAL PORTION
OF THE ASSETS OF 55 LEASING ARE UTILIZED IN THE BUSINESS OF SOUTHERN VALVE;
WHEREAS, THE SELLERS DESIRE TO SELL TO INVATEC, CONCURRENTLY WITH THE
ACQUISITION OF SOUTHERN VALVE BY INVATEC, ALL OF THE SHARES OF 55 LEASING, AND
INVATEC DESIRES TO PURCHASE ALL OF THE SHARES, ON THE TERMS AND CONDITIONS SET
FORTH IN THIS AGREEMENT;
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN
AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH
ARE HEREBY ACKNOWLEDGED, IT IS HEREBY AGREED AS FOLLOWS:
REDEMPTION AND PURCHASE OF SHARES. SET FORTH ON SCHEDULE 1(A) IS A
SCHEDULE OF ALL OF THE SHARES AND THE RECORD AND BENEFICIAL OWNERSHIP OF THE
SHARES BY EACH OF THE SELLERS. AT THE CLOSING (AS DEFINED IN THE SOUTHERN VALVE
AGREEMENT), 55 LEASING AGREES TO REDEEM FROM JORDAN THE SHARES OWNED BY JORDAN
IN CONSIDERATION OF THE CONVEYANCE TO JORDAN OF THE THREE MOTOR VEHICLES
DESCRIBED IN SCHEDULE 1(B) (THE "VEHICLES"), FREE AND CLEAR OF ANY LIENS
CHARGES, ENCUMBRANCES OR RESTRICTIONS, AND XXXXXXX AND XXXXXX EACH AGREE TO
AGREE TO TRANSFER TO INVATEC ALL OF THE REMAINING SHARES FOR THE CASH
CONSIDERATION SET FORTH IN SECTION 2, WHICH WILL RESULT IN INVATEC OWNING ALL OF
THE OUTSTANDING SECURITIES OF 55 LEASING.
2. PURCHASE PRICE FOR XXXXXXX AND XXXXXX SHARES. UPON THE TERMS
AND SUBJECT TO THE CONDITIONS CONTAINED HEREIN, INVATEC AGREES TO PAY XXXXXXX
AND XXXXXX EACH $15,000 IN CASH AT THE CLOSING.
3. ASSUMPTION OF 55 LEASING DEBT. AS ADDITIONAL CONSIDERATION TO
INDUCE THE SELLERS TO CONSUMMATE THE TRANSACTIONS SET FORTH ABOVE, AT THE
CLOSING INVATEC SHALL ASSUME THE LIABILITIES AND OBLIGATIONS OF 55 LEASING AND
THE STOCKHOLDERS SET FORTH ON SCHEDULE 3 (THE "ASSUMED LIABILITIES"), SUCH
ASSUMPTION CONDITIONED UPON SUCH LIABILITIES NOT EXCEEDING AN AGGREGATE OF
$248,000 AT THE CLOSING AND TO BE EFFECTED UNDER THE TERMS OF THE ASSUMPTION
AGREEMENT SET FORTH ON EXHIBIT A. In addition, no later than five business days
after the IPO Closing Date, INVATEC will cause the any guaranties, if any,
listed in the Disclosure Statement to be terminated. INVATEC will indemnify and
hold harmless each Seller from and against any liabilities, claims, demands,
judgments, losses, costs, damages or expenses whatsoever (including reasonable
attorneys' fees) that such Seller may sustain, suffer or incur and that result
from or arise out of or relate to such guaranties or otherwise relating to the
Assumed Liabilities.
4 SELLERS' REPRESENTATIONS AND WARRANTIES. THE SELLERS REPRESENT
AND WARRANT TO INVATEC THAT (I) THE SELLERS HAVE (AND AS OF THE CLOSING WILL
HAVE) GOOD AND MARKETABLE TITLE TO THE SHARES TO BE REDEEMED BY 55 LEASING FROM
JORDAN OR TRANSFERRED TO INVATEC BY XXXXXXX AND XXXXXX HEREUNDER, FREE AND CLEAR
OF ANY LIENS, CHARGES, ENCUMBRANCES OR RESTRICTIONS, (II) EACH OF THE SHARES TO
BE REDEEMED BY 55 LEASING OR TRANSFERRED TO INVATEC BY THE SELLERS HEREUNDER IS
FULLY PAID AND NONASSESSABLE, AS OF THE CLOSING WILL BE FREELY TRANSFERABLE TO
55 LEASING OR INVATEC, AS THE CASE MAY BE, UNDER THE LAWS OF THE UNITED STATES
AND THE STATE OF ALABAMA AND THERE ARE NO (AND AS OF THE CLOSING WILL NOT BE
ANY) OUTSTANDING RIGHTS TO PURCHASE OR ACQUIRE ANY COMMON STOCK OR ANY OTHER
SECURITIES OR INTEREST IN 55 LEASING, (III) AT THE DATE OF THIS AGREEMENT THE
ASSUMED LIABILITIES CONSTITUTE (AND AS OF THE CLOSING SUCH ASSUMED LIABILITIES
WILL CONTINUE TO CONSTITUTE) ALL OF THE LIABILITIES OF 55 LEASING, WHETHER
KNOWN, CONTINGENT OR OTHERWISE, (IV) THE ASSETS OF 55 LEASING SET FORTH ON
SCHEDULE 3 CONSTITUTE (AND AS OF THE CLOSING WILL CONSTITUTE EXCEPT THE VEHICLES
THAT ARE TRANSFERRED) ALL OF THE ASSETS OF 55 LEASING, (V) THE ASSETS LEASED SET
FORTH ON SCHEDULE 3 AND DESIGNATED AS LEASED TO THIRD PARTIES ARE LEASED UNDER
VALID LEASES, WHICH LEASES ARE IN FULL FORCE AND EFFECT (AND 55 LEASING IS NOT
IN MATERIAL DEFAULT WITH RESPECT THERETO) AND A COPY OF EACH OF WHICH HAS BEEN
PREVIOUSLY FURNISHED TO INVATEC.
5 DOCUMENTS TO BE DELIVERED. TO EFFECT THE TRANSFERS OF THE
SHARES AND THE DELIVERY OF THE REDEMPTION OR PURCHASE PRICE DESCRIBED IN SECTION
2, THE SELLERS AND INVATEC WILL, AT THE CLOSING, EXCEPT AS OTHERWISE PROVIDED,
DELIVER OR CAUSE TO BE DELIVERED THE FOLLOWING:
(A) EACH OF THE SELLERS WILL DELIVER TO 55 LEASING OR INVATEC,
AS APPROPRIATE, THE CERTIFICATES REPRESENTING THE SHARES
OWNED BY SUCH SELLER, ENDORSED IN BLANK, OR ACCOMPANIED BY
DULY EXECUTED STOCK POWERS OR ASSIGNMENTS, DULY AUTHORIZED
AND EXECUTED BY THE APPROPRIATE SELLER;
2
(B) 55 LEASING WILL DELIVER TO JORDAN MOTOR VEHICLE TITLES,
DULY ENDORSED BY AN AUTHORIZED OFFICER OF 55 LEASING,
TRANSFERRING TITLE TO EACH OF THE VEHICLES TO JORDAN;
(C) INVATEC WILL DELIVER TO EACH OF XXXXXXX AND XXXXXX
$15,000; AND
(D) PROVIDED THE ASSUMED LIABILITIES ARE $248,000 OR LESS,
INVATEC WILL DELIVER TO EACH OF THE SELLERS A FULLY
EXECUTED ASSUMPTION AGREEMENT
ASSUMING THE ASSUMED LIABILITIES.
6 MODIFICATION OF AGREEMENT. THIS AGREEMENT MAY BE AMENDED OR
MODIFIED ONLY IN WRITING SIGNED BY ALL OF THE PARTIES.
7. TERMINATION. THIS AGREEMENT SHALL AUTOMATICALLY TERMINATE UPON
TERMINATION OF THE SOUTHERN VALVE AGREEMENT, AND UPON SUCH TERMINATION, THE
PARTIES SHALL HAVE NO LIABILITY HEREUNDER.
8 NOTICES. ALL NOTICES, CONSENTS, DEMANDS OR OTHER COMMUNICATIONS
REQUIRED OR PERMITTED TO BE GIVEN PURSUANT TO THIS AGREEMENT SHALL BE DEEMED
SUFFICIENTLY GIVEN WHEN TELEFAXED OR DELIVERED PERSONALLY DURING REGULAR
BUSINESS HOURS DURING A BUSINESS DAY TO THE APPROPRIATE LOCATION DESCRIBED
BELOW, OR THREE (3) DAYS AFTER POSTING THEREOF BY UNITED STATES FIRST-CLASS,
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, WITH POSTAGE AND FEES
PREPAID AND ADDRESSED AS FOLLOWS:
IF TO INVATEC: Innovative Valve Technologies, Inc.
00000 Xxxxxxx, Xxxxx X-000
Xxxxxxx, Xxxxx 00000
Attn.: Xxxx Xxxx
Fax No.: (000) 000-0000
WITH A COPY TO:
XXXXX, XXXXX & XXXXXX INCORPORATED
NINE XXXXXXXX XXXXX, #0000
XXXXXXX, XXXXX 00000
ATTN.: XXXX X. XXXXX, XX.
FAX NO.: 000-000-0000
IF TO JORDAN OR 55 LEASING:
Mr. Xxx Xxx Xxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
3
FAX NO.: (000) 000-0000
IF TO XXXXXXX: Xx. Xxxxx Xxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
IF TO XXXXXX Xxxxxx Xxxxxx
000 Xxx Xxxxx
Xxxxxxxxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
IN THE CASE OF JORDAN, 55 LEASING, XXXXXXX OR XXXXXX WITH A COPY
TO:
Jenkens & Xxxxxxxxx
Fountain Place
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Fax No.:(000) 000-0000
Attn: Xxxxxx X. Xxxxxxxxxx
ANY PARTY AT ANY TIME BY FURNISHING NOTICE TO THE OTHER PARTIES IN THE MANNER
DESCRIBED ABOVE MAY DESIGNATE ADDITIONAL OR DIFFERENT ADDRESSES FOR SUBSEQUENT
NOTICES OR COMMUNICATIONS.
9 SEVERABILITY. IF ANY PROVISION OF THIS AGREEMENT SHALL FOR ANY
REASON BE HELD TO VIOLATE APPLICABLE LAW, AND SO MUCH OF SAID AGREEMENT IS HELD
UNENFORCEABLE, THEN THE INVALIDITY OF SUCH SPECIFIC PROVISION HEREIN SHALL NOT
BE HELD TO INVALIDATE ANY OTHER PROVISION HEREIN, WHICH SHALL REMAIN IN FULL
FORCE AND EFFECT.
10 ENTIRE AGREEMENT. THIS AGREEMENT, TOGETHER WITH THE OTHER
AGREEMENTS OF EVEN DATE EXECUTED BY THE PARTIES, COLLECTIVELY SET FORTH THE
ENTIRE AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF.
11 NON-WAIVER. FAILURE ON THE PART OF A PARTY IN ANY ONE OR MORE
INSTANCES TO ENFORCE ANY OF ITS RIGHTS WHICH ARISE IN CONNECTION WITH THIS
AGREEMENT, OR TO INSIST UPON THE STRICT PERFORMANCE OF ANY OF THE TERMS,
CONDITIONS OR COVENANTS OF THIS AGREEMENT, SHALL NOT BE CONSTRUED AS A WAIVER OR
RELINQUISHMENT FOR THE FUTURE OF ANY SUCH RIGHTS, TERMS, CONDITIONS OR
COVENANTS. NO WAIVER OF ANY CONDITION OF THIS AGREEMENT SHALL BE VALID UNLESS IT
IS IN WRITING, AND EXECUTED BY THE PARTY AGAINST WHOM SUCH WAIVER IS SOUGHT TO
BE ENFORCED.
4
12 GOVERNING LAW. THE LAWS OF THE UNITED STATES AND THE INTERNAL
LAWS OF THE STATE OF TEXAS SHALL GOVERN THIS AGREEMENT AND THE PERFORMANCE OF
THE TRANSACTIONS BY THE PARTIES HERETO. THE PARTIES HERETO IRREVOCABLY SUBMIT TO
THE JURISDICTION OF THE STATE AND FEDERAL COURTS IN THE STATE OF TEXAS, AND
AGREE THAT VENUE FOR ANY LITIGATION CONCERNING THIS AGREEMENT SHALL BE IN XXXXXX
COUNTY, TEXAS.
13 NO ASSIGNMENT. NEITHER PARTY SHALL HAVE THE RIGHT TO TRANSFER
OR ASSIGN, IN WHOLE OR IN PART, ITS RIGHTS AND OBLIGATIONS HEREUNDER WITHOUT THE
PRIOR WRITTEN CONSENT OF THE OTHER PARTY.
14 HEADINGS. HEADINGS IN THIS AGREEMENT ARE FOR CONVENIENCE ONLY
AND SHALL NOT AFFECT THE INTERPRETATION OF THIS AGREEMENT.
15. SCHEDULES AND EXHIBITS. ALL SCHEDULES AND EXHIBITS ATTACHED
TO THIS AGREEMENT ARE HEREBY INCORPORATED IN AND MADE A PART OF THIS AGREEMENT.
16 COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN MULTIPLE
COUNTERPARTS, EACH OF WHICH SHALL HAVE THE FORCE AND EFFECT OF AN ORIGINAL, AND
ALL OF WHICH SHALL CONSTITUTE ONE AND THE SAME AGREEMENT. THE PARTIES
SPECIFICALLY CONTEMPLATE THAT THIS AGREEMENT SHALL BECOME BINDING UPON THE
EXECUTION OF ONE OR MORE COUNTERPARTS OF THIS AGREEMENT BY EACH PARTY AND THE
DELIVERY BY OF SUCH COUNTERPART OR COUNTERPARTS BY FACSIMILE COPY TO THE OTHER
PARTIES HERETO.
17 SUCCESSORS AND ASSIGNS. THIS AGREEMENT SHALL INURE TO THE
BENEFIT OF AND BE BINDING UPON THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS, BUT THIS PROVISION SHALL IN NO WAY ALTER THE RESTRICTIONS SET FORTH
HEREIN RELATING TO ASSIGNMENT BY THE PARTIES.
5
IN WITNESS WHEREOF, THE PARTIES TO THIS AGREEMENT HAVE DULY EXECUTED IT
AS OF THE DATE FIRST ABOVE WRITTEN.
INVATEC:
INNOVATIVE VALVE TECHNOLOGIES,
INC.
BY:__________________________
NAME:________________________
TITLE:_______________________
55 LEASING:
55 LEASING & SALES, INC..
BY:__________________________
NAME:________________________
TITLE:_______________________
SELLERS:
_______________________ ____________________________________
XXXXXX XXXXXX XXX XXX XXXXXX
_______________________
XXXXX XXXXXXX
6
EXHIBIT A
ASSUMPTION AGREEMENT
This ASSUMPTION AGREEMENT (this "ASSIGNMENT') is made effective as of
June , 1997, between INNOVATIVE VALVE TECHNOLOGIES, INC., a Delaware corporation
("ASSIGNOR"), and 55 LEASING & SALES, INC., an Alabama corporation ("LEASING")
AND XXX XXX XXXXXX ("JORDAN"), A RESIDENT OF TEXAS, XXXXX XXXXXXX, A RESIDENT OF
ALABAMA ("XXXXXXX"), AND XXXXXX XXXXXX ("XXXXXX"), A RESIDENT OF TEXAS (JORDAN,
XXXXXXX AND XXXXXX
BEING COLLECTIVELY REFERRED TO AS THE "STOCKHOLDERS") .
WHEREAS, the Stockholders, constitute all of the stockholders of
Leasing, and Assignor and the Stockholders have entered into a Stock Redemption
and Purchase Agreement dated as of June , 1997 ("PURCHASE AGREEMENT"), pursuant
to which the Stockholders have agreed to sell to Assignor all of the issued and
outstanding stock of Leasing; and
WHEREAS, Assignor has agreed in the Purchase Agreement to assume certain
liabilities and obligations of Leasing and the Stockholders described or
identified on EXHIBIT A (the "ASSUMED LIABILITIES").
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, INVATEC and Leasing
hereby covenant and agree as follows:
1. ASSUMPTION. INVATEC hereby agrees that it will observe and perform
(or cause Leasing to observe and perform) all of the terms, conditions and
stipulations contained in any contracts or agreements constituting the Assumed
Liabilities which are to be observed and performed by Leasing with respect
thereto and will save harmless, indemnify and defend the Stockholders against
all claims, demands, and actions that arise relating to the Assumed Liabilities.
2. BINDING EFFECT. This Assignment shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
3. SEVERABILITY. Each paragraph of this Assignment shall be viewed as
separate and divisible, and in the event that any paragraph shall be held to be
invalid, the remaining paragraphs shall continue to be in full force and effect.
4. ENTIRE AGREEMENT. This Assignment constitutes the entire agreement
and understanding among the parties hereto relating to the subject matter hereof
and supersedes all prior understandings, written or oral, with respect to the
subject matter hereof.
5. CAPTIONS. The captions of the sections and paragraphs of this
Assignment are for convenience of reference only and shall not restrict or
modify any of the terms or provisions hereof.
6. COUNTERPARTS. This Assignment may be executed in multiple original
counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same instrument.
8. APPLICABLE LAW. This Assignment shall be governed by and construed in
accordance with the laws of the State of Texas, without regard to the conflict
of laws provisions thereof.
IN WITNESS WHEREOF, the undersigned have executed this Assignment
effective as of the date first above written.
INVATEC:
INNOVATIVE VALVE TECHNOLOGIES, INC.,
a Delaware corporation
By:
Name:__________________________
Title:_________________________
LEASING:
55 LEASING & SALES, INC.,
an Alabama corporation
By:
Name:__________________________
Title:_________________________
STOCKHOLDERS:
_______________________ ____________________________________
XXXXXX XXXXXX XXX XXX XXXXXX
_______________________
XXXXX XXXXXXX
-2-
EXHIBIT A
ASSUMED LIABILITIES
