Exhibit 10.1
STOCK PURCHASE
AGREEMENT
THIS STOCK PURCHASE AGREEMENT
(hereinafter referred to as the “Agreement”), made and
entered into as of September 17 , 2002 (hereinafter referred
to as the “Agreement Date”), by and among Environmental
Energy Services, Inc., a Delaware corporation
(“Purchaser”) and Corporate Vision, Inc., an Oklahoma
corporation (the “Company”).
WHEREAS, the Purchaser owns an interest
in the Royalty payable pursuant to Paragraph 4(b) of that Binder
Product Technology License Agreement dated April 7, 1998 by and
among Alabama Fuel Products, LLC, Startec, Inc. and Startec Energy,
Inc. (the Purchaser’s interest shall be hereinafter be
referred to as the “Binder Royalty”);
WHEREAS, the actual amount of Binder
Royalty payable to the Purchaser are subject to dispute in that
litigation styled Environmental Energy Services, Inc. v.
Startec, Inc., Startec Energy, Inc., Alabama Fuel Products, Inc.,
Dr. Charles O. Mbanefo and Pipkin, LLC , in the Circuit Court
of Jefferson County, Alabama, as well as that litigation styled
Pipkin LLC, vs. Dr. Mbanefo, et al. , Case No. A0202031,
pending in the Court of Common Pleas, Civil Division, Hamilton
County, Ohio, and therefore, the amount and timing of Binder
Royalty payments is not known at this time;
WHEREAS, the Purchaser has previously
granted security interests in the Binder Royalty to Mottern, Fisher
& Goldman, P.C., Weizenecker, Rose, Mottern & Fisher, P.C.,
and Turner, Jones & Associates, PLLC, and has conveyed a
one-third (1/3) interest in the Binder Royalty to Dr. Charles O.
Mbanefo, M.D.;
WHEREAS, the Purchaser has agreed to make
an investment of $2,500,000 in the Company by assigning the Company
a fifty percent (50%) interest, up to $2,500,000, in the
Purchaser’s remaining interest in the Binder Royalty,
determined after giving effect to the previous assignment of a
one-third (1/3) interest in the Binder Royalty to Dr. Charles O.
Mbanefo, M.D.;
WHEREAS, the Company has agreed to accept
the Purchaser’s investment on the terms and conditions set
forth herein.
NOW, THEREFORE, for and in consideration
of the covenants and agreements hereinafter set forth and the sum
of ten dollars ($10), and other valuable consideration, the receipt
and sufficiency whereof are hereby acknowledged, the parties hereby
covenant and agree as follows:
1.
Purchase and Sale of Shares
. Subject to the terms and
conditions set forth in this Agreement, the Purchaser hereby
irrevocably agrees to purchase twenty million (20,000,000) shares
of common stock (the “Shares”) of the Company at a
purchase price of $0.125 per share, for a total purchase price of
$2,500,000.00 (the “Purchase Price”).
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2.
Payment of Purchase Price
. The Purchase Price shall be
payable in installments equal to 50% of all Binder Royalty payments
due the Purchaser, which amount shall be calculated after giving
effect to the Purchaser’s prior assignment of a one-third
(1/3) interest in the Binder Royalty to Dr. Charles O. Mbanefo,
M.D., but before taking into consideration the amount of any Binder
Royalty payment that is due to the holder of a prior security
interest in the Binder Royalty; provided, that the
Purchasrer’s failure to make part or all of a Binder Royalty
as a result of the Purchaser’s obligation to utilize part or
all of a Binder Royalty to pay a prior security interest holder in
the Binder Royalty shall not constitute a default of the
Purchaser’s obligation to purchase the Shares hereunder.
Each installment shall be due within twenty-four (24) hours
after the clearance funds with respect to the Purchaser’s
receipt of a Binder Royalty payment. To secure the
Purchaser’s obligation to pay for the Shares, the Purchaser
hereby grants the Company a security interest in the
Purchaser’s interest in the Binder Royalty . The
security interest of the Company in the Binder Royalty shall be
subject to any and all security interests in the Binder Royalty.
The Purchaser agrees to execute any documents that the
Company reasonably requests to perfect the Company’s security
interest in the Binder Royalty, including without limitation a
notice to the payor of the Binder Royalty directing that the
appropriate percentage of payments of the Binder Royalty be made
directly to the Company, and/or a UCC-1 financing statement.
Within five days after the Company’s receipt of any
payments on the Binder Royalty, the Company shall issue the
Purchaser shares of its common stock equal to the amount of the
payment divided by $0.125. Notwithstanding the foregoing, the
Purchaser shall not be obligated to purchase Shares upon receipt of
a Binder Royalty payment in the event the Company has suffered a
material adverse change in its condition (financial or otherwise),
including of its shareholder equity, assets, liabilities, earnings,
net worth, business activities, or prospects of the Company, or
suffered any material damage, destruction or loss to any of its
assets or properties (whether or not covered by insurance).
For purposes of this Agreement, a “material adverse
change” shall by comparing the Company’s condition at
the time of the Binder Royalty payment to the Company’s
condition as of the date of this Agreement or the last quarterly or
annual report filed with the Securities and Exchange Commission
prior to the previous Binder Royalty payment. In the event of
a dispute between the Purchaser and the Company as to whether a
material adverse change has occurred with respect to the Company,
such dispute shall be resolved by binding arbitration pursuant to
Paragraph 15 herein, and pending resolution of the dispute, all
Binder Royalty payments subject to the dispute shall be deposited
into escrow with the firm of Weizenecker, Rose, Mottern &
Fisher, P.C., or such other firm or entity upon which the Company
and the Purchaser mutually agree, until the resolution of the
dispute. In the event the Company advances any
attorney’s fees or costs necessary to preserve, defend,
collect or adjudicate any issues relating to the Binder Royalty,
then the Company shall be entitled to reimbursement of those fees
and costs from the next Binder Royalty payment.
3.
Joinder to Stockholders’
Agreement . By the
Purchaser’s execution of this Agreement, the Purchaser hereby
becomes a party to, and agrees to be bound by and to comply with
the provisions of, that Stockholders' Agreement dated March 5, 2002
by and among Gregory J. Gibson, Global Eco-Logical Services, Inc.
and the Company, a copy of which is attached hereto as Exhibit A,
in the same manner as if the undersigned were an original signatory
to such Stockholders’ Agreement. The Purchaser shall be
a “Shareholder” as such term is defined in
the
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Stockholders' Agreement. Paragraph
2.1(b) of the Stockholders’ Agreement is hereby modified to
add the following sentence at the end thereof:
“In addition, at any time after
Environmental Energy Services, Inc. (“EESV”) has
purchased at least five million (5,000,000) shares of common stock
in the Corporation under the Stock Purchase Agreement dated
September __, 2002, the number of directors constituting the Board
shall be increased to three (3), and each of the Shareholders agree
to vote all of their shares of common stock owned by them, or
consent in writing with respect to such shares, in favor of one (1)
director who shall be designated and approved by
EESV.”
In addition, Paragraph 2.2 of the
Stockholders’ Agreement is hereby modified to add the
following sentence at the end thereof:
“Notwithstanding the foregoing, the
Corporation may take any of the foregoing acts without the consent
of EESV at any time that EESV owns less than 5,000,000 shares of
common stock.”
4.
Closing Costs . The Company shall be responsible for the
legal fees incurred in connection with the preparation of this
Agreement.
5.
Disclosure of Information
. The Purchaser agrees to provide
the Company with any documents relating to the Binder Royalty to
the extent necessary for the Company’s management and
professionals to enable the Company to comply with its reporting
requirements under state and federal securities laws, including any
agreements relating to the Binder Royalty, any estimates of the
amount and timing of Binder Royalty payments, and any pleadings
filed or documents produced in the litigation relating to the
Binder Royalty (except to the extent such pleadings are filed under
seal or such documents are produced pursuant to a protective order
or confidentiality agreement); provided that all such information
will be deemed confidential information, and the Company will not
disclose any such information to any person other than an officer,
employee, attorney, accountant or auditor for the Company third
party unless pursuant to a subpoena or court order.
6.
Restrictive Legend
. The Shares shall bear a
restrictive legend substantially in the form set forth
below:
“The shares evidenced by this
certificate have not been registered under the Securities Act of
1933 and may not be transferred, nor will any assignee or endorsee
hereof be recognized as an owner hereof by the issuer for any
purpose, unless a registration statement under the Securities Act
of 1933, as amended, with respect to such shares shall then be in
effect or unless the availability of an exemption from registration
with respect to any proposed transfer or disposition of such shares
shall be established to the satisfaction of counsel for the
issuer.”
7.
Representations and Warranties of the
Company . The Company
warrants and represents that:
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a)
The Company is a validly formed
corporation in good standing under the laws of the State of
Oklahoma, and all franchise taxes and fees required to maintain it
in good standing have been paid. The Company has all
requisite corporate power and authority to carry on its business as
now conducted and as proposed to be conducted. The Company is
duly qualified to transact business and is in good standing in each
jurisdiction in which the failure so to qualify would have a
material adverse effect on its business or properties.
b)
The Company is authorized to execute,
deliver and perform this Agreement according to its
terms.
c)
The Company is a “reporting
company” under Section 12 of the Securities Exchange Act of
1934, and has filed all reports and forms required to be filed
under Sections 13 or 15 of the Securities Exchange Act of 1934 (the
“SEC Filings”).
d)
Neither the execution and delivery of
this Agreement by the Company, nor the consummation of the
transactions contemplated hereby, will: (i) violate or
conflict with any provision of the Articles of Incorporation or
Bylaws of the Company, (ii) violate, breach or otherwise constitute
or give rise to a default under any contract, commitment, permit,
authorization or other obligation to or by which the Company is a
party or is bound, (iii) violate or conflict with any statute,
ordinance, law, rule or regulation or any judgment, order or decree
of any court or other governmental or regulatory authority to which
the Company is subject, (iv) result in the imposition of any lien,
encumbrance, restriction or charge on the Company, or its business
or assets, or (v) require any consent, approval or authorization
of, notice to, or filing, recording, registration or qualification
with any person, entity, court or governmental or regulatory
authority by the Company.
e)
The Company is authorized to issue
200,000,000 shares of common stock, par value $0.01 per share, of
which 76,247,205 are issued and outstanding.
f)
There are no options, warrants or
securities of any nature outstanding that are exercisable,
convertible or exchangeable into shares of its common stock, and
the Company is not a party to any agreement of any nature in which
the Company is or may be obligated to issue shares of its common
stock, other than as disclosed in the SEC Filings.
g)
There is no action, proceeding, claim, or
investigation pending or threatened against the Company or to which
any of its assets or properties are subject before any court or any
governmental department, commission, board, bureau, agency, or
instrumentality which involves the possibility of any judgment or
liability or which might adversely affect its assets, business, or
goodwill and, after investigation, the Company knows of no basis or
grounds for any such action, proceeding, claim, or investigation,
other than as disclosed in the SEC Filings.
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h)
There is no outstanding order, writ,
injunction, or decree of any court, government department,
commission, board, bureau, government agency, or instrumentality,
or any arbitration award, against the Company, other than as
disclosed in the SEC Filings.
i)
The Company has not filed bankruptcy
under Title 11, U.S. Code, or any other debt relief law, have not
had a receiver appointed, have not made an assignment for the
benefit of creditors, and have not been found or adjudicated
insolvent by any court or tribunal.
8.
Representations and Warranties of the
Purchaser . The
Purchaser represents and warrants to Company as follows:
a)
The Purchaser is authorized to execute,
deliver and perform this Agreement, and all agreements executed
pursuant hereto, in accordance with their terms;
b)
This Agreement, and all agreements
executed pursuant hereto, are the valid and binding obligations of
the Purchaser enforceable in accordance with their
terms;
c)
The Purchaser represents and warrants
that it has reviewed all of the SEC Filings, which are publicly
available on the Securities & Exchange Commission’s
website, www.sec.gov
, and has been given the opportunity to
review any documents and ask any questions of management of the
Company that it desires prior to executing this
Agreement;
d)
The Company did not locate the Purchaser
by any means of public solicitation or advertising, and no
commission or finder’s fee is being paid in connection with
the issuance of the Shares;
e)
The Purchaser is entering into this
Agreement for its own account and not with a view to or for sale in
connection with any distribution of the Shares. The
Purchaser
