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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
{A0035909.DOC}
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:
{A0035909.DOC}
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 has no present
arrangement (whether or not lega
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