Exhibit 2(ii)
STOCK PURCHASE
AGREEMENT
THIS AGREEMENT
(“Agreement”), made as
of February 29, 2004 between Atmospheric Glow Technologies,
Inc., formerly known as Tice Technology, Inc., a
Delaware Corporation (“Seller”), and Pat Martin and
Mike Atkins, citizen and residents of Knox County, Tennessee
(“Purchaser”);
WHEREAS, Seller is owner of 100% of the issued and
outstanding shares of Land Oak Company, Inc., a Tennessee
corporation (“LO”) consisting of 100 shares of no par
value stock (the “Stock”);
WHEREAS, Purchaser desires to acquire all of the Stock
pursuant to the terms hereof; and
WHEREAS, the parties have agreed that the sale and
purchase of the Stock shall be pursuant to and in accordance with
further representations, warranties, covenants and agreements
hereinafter made.
NOW THEREFORE,
in consideration of the foregoing,
the mutual covenants and conditions contained herein and other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties do hereby agree as
follows:
1.0 Sale of Stock. Seller
agrees to sell and Purchaser agrees to purchase, pursuant to the
terms of this Agreement and contingent upon the conditions herein,
the Stock for $1 and conditioned upon the following: (a) By
closing, Buyer has obtained approval of Sun Trust Bank, NA.
Purchaser acknowledges that except as specifically provided herein,
Seller is not obligated to satisfy any liabilities of LO. (b)
Seller will transfer common shares of the Seller to Purchasers in
the amount of $628,292.05 at a rate of $0.11 per share, or a total
of 5,711,746 common shares at closing or immediately thereafter.
Purchaser shall have the unrestricted right to assign his rights
under this Agreement, in whole or in part, to any business entity
that is owned or controlled by Purchaser. The purchase and sale of
the Stock, subject to the provisions hereof, are considered
effective the date of this Agreement, February 29, 2004 (the
“Closing Date”) (c) Seller will issue common shares of
the Seller to Purchasers in the amount of $ 1,300,000 at a rate of
$0.07 per share, or a total of 18,571,429 common shares in
acceptance of the conversion of debt to Purchasers currently
included in the liabilities of LO.
2.0 Representations and
Warranties of Seller. The Seller represents and warrants as
follows:
2.1 Organization, Standing and
Capitalization of LO. LO is a Tennessee corporation duly
organized, validly existing and in good standing under the laws of
the State of Tennessee and has all necessary corporate power and
authority to own its properties and to conduct its business as now
owned and conducted and does not own property or conduct business
so as to make it necessary for it to qualify to do business in any
jurisdiction in which it is not now qualified.
As of the date hereof, the
authorized capitalization of LO consists of 100 shares of no par
value stock of which 100 shares are issued and outstanding. All
such outstanding shares are duly and validly issued, fully paid and
non-assessable.
There are not outstanding any other
options, warrants, convertible securities or subscriptions to
acquire stock or securities of LO nor is it obligated to issue any
such options, warrants, convertible securities or
subscriptions.
2.2 Shareholders, Seller is
the only existing shareholder of LO.
2.3 Financial Statements and
Conditions. Seller has furnished to Purchaser the financial
statements of LO for the period April 1, 2002 to March 31, 2003 and
interim financial statements of LO for the period April 1, 2003 to
December 31, 2003(Schedule 2.3) prepared by its internal accountant
including the operating statement and balance sheet (the “LO
Financial Statements”). The LO Financial Statements have been
prepared from the books and records of LO on a consistent basis
throughout the period indicated and fairly present the financial
position, assets and liabilities of LO as of the date of the
balance sheet included therein and fairly present the results of
its operations and contain and reflect such reserves for
liabilities or obligations whether absolute or contingent or
otherwise, and for all reasonably anticipated losses and costs in
excess of expected receipts as required for a fair presentation of
the information reflected therein and contain and reflect all
necessary adjustments as to fairly present the financial condition
and results of operations of LO. As of the Closing Date, LO does
not have any liabilities or obligations not fully and properly
reflected or reserved against in the balance sheet except
liabilities and obligations incurred by LO in the ordinary course
of business since July 1, 2002 or otherwise reflected in schedules
attached hereto.
2.4 Absence of Certain
Changes. Except as may be described in Schedule 2.4 attached,
since December 31, 2003 there has not occurred:
(a) any materially adverse change in
the assets, liabilities, capitalization, condition (financial or
otherwise), business or prospects of LO;
(b) any damage, destruction or loss
(whether or not covered by insurance) having a material adverse
effect on the assets, condition (financial or otherwise), business
or prospects of LO or;
(c) any event or condition or threat
thereof which does or reasonably might have a materially adverse
effect on the assets, condition (financial or otherwise), business
or prospects of LO.
Since December 31, 2003, LO has not,
directly or indirectly except as may be described in Schedule
2.4;
(i) made any loan or any advance
other than in the ordinary course of business;
(ii) declared or paid any dividends
on its capital stock or redeemed, purchased or otherwise acquired
any shares of its capital stock;
(iii) subjected any of its assets to
any mortgage, deed or trust, security interest, lien, pledge,
conditional sales contract, lease, encumbrance or
charge;
(iv) sold, leased or otherwise
transferred any of its assets other than in the ordinary course of
business;
(v) except for those agreements
related to the transaction contemplated herein and except for those
agreements referred to in Schedule 2.4, entered into any agreement
which is not in the ordinary course of business or which involves
consideration given or to be given by LO in excess of Five Thousand
Dollars ($5,000.00);
(vi) incurred any obligation or
liability for borrowed money, or incurred any other obligation or
liability except in the ordinary course of business except for
those agreements referred to in Schedule 2.4.
2.5 Accounts Receivable.
Except as may be described in Schedule 2.5, the accounts receivable
reflected in the December 31, 2003 Financial Statements, as well as
the accounts receivable arising between that date and the Closing
Date, subject to trade discounts, allowances and returns in the
ordinary course of business, are and will be valid and enforceable,
incurred in the ordinary course of the business, and payable to and
collectible in full by LO without any set-off or counterclaim or
any reduction except for reserves for bad debts reflected in such
financial statements. The accounts receivable of LO will be
assigned to the purchaser.
2.6 Inventory. Except as set
forth on Schedule 2.6, LO has good and marketable title to all of
its inventories and work in process free and clear of all liens,
leases, encumbrances, equities, conditional sales contracts,
security interests, charges and restrictions.
2.7 Income Taxes. Federal
income tax and state franchise, excise and income tax returns with
respect to LO and its shareholders have been filed through March
31, 2002. All employment tax returns that are required to be filed
with respect to LO have been filed through December 31, 2003. To
the best of Seller’s knowledge, information and belief and
except as set forth on Schedule 2.7, Seller knows of no subsequent
events or decisions that would result in a material assessment by
the tax authorities on returns that have been filed as of the
closing date.
2.8 Agreements. Attached as
Schedule 2.8 is a true and complete list of all indentures,
contracts, agreements, arrangements or other material obligations,
if any, written or oral (“Agreements”), to which LO is,
as of the date of this Agreement, a party, or by which it is bound,
except those agreements which individually involve
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less than $5,000 in consideration.
The agreements listed in Schedule 2.8 are valid and binding
obligations of the parties hereto in accordance with their
respective terms and, to the best of Seller’s knowledge and,
except as set forth on Schedule 2.8, there are no liabilities of LO
arising from any breach or default prior to the date of this
Agreement under any provisions of such Agreements and, to the best
of Seller’s knowledge and, except as set forth on Schedule
2.8, no event has occurred which through the passage of time or the
giving of notice, or both, would constitute a breach or default of
LO under any such agreement. Seller has no reason to believe that
any agreement by which LO is bound is materially adverse to
LO’s business, assets or future condition (financial or
otherwise).
2.9 Real Property. LO owns no
real property.
2.10 Tangible Personal
Property. Schedule 2.10 is a correct and complete list of all
substantial tangible personal property used in the business of LO
and owned as of December 31 2003, except for inventories of raw
material, work in process, finished goods and tooling.
2.11 Insurance. Schedule 2.11
contains a list of all insurance policies held by LO. LO has not,
during the last three fiscal years, been denied or had revoked or
rescinded any policy of insurance.
2.12 Labor, Benefit and
Employment Agreements. Schedule 2.12 is a correct and complete
list of all employment agreements, collective bargaining and other
labor agreements, and pension, bonus and profit sharing agreements,
deferred compensation, retainer, consulting or other agreements to
which LO is a party by which it is bound. To the best knowledge of
Seller, there is not pending or threatened any labor dispute,
strike or work stoppage that may disrupt the continued operation of
LO.
2.13 Employees, Officers and
Directors. Schedule 2.13 is a correct and complete list of all
salaried employees and their current rate of remuneration
(including wages and fringe benefits). Such Schedule also includes
a correct and complete list of all commission salesmen and
manufacturers’ representatives who have received commissions
or salaries during the last fiscal year naming each and setting
forth the gross salary and/or commission paid to each in respect of
the prior calendar year of LO and the rate of salary and commission
payable to each. Such Schedule also contains a correct and complete
list of all of the officers and directors of LO and the rate of
compensation payable to each such person in any and all
capacities.
2.14 Litigation. Except as
set forth in Schedule 2.14, there is no legal, administrative,
arbitration or other proceeding or governmental investigation
pending or to the best knowledge of Seller, threatened against or
otherwise affecting LO or its assets. LO is not presently engaged
in any legal action to recover claims for monies due it or damages
sustained by it except as indicated in such Schedule. LO
is
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not a party to any order, writ,
injunction or decree of any local or foreign court, department,
agency or instrumentality, except as set forth in such
Schedule.
2.15 Violation of Applicable Law
or Other Instruments. Neither the execution of this Agreement
nor the consummation of the transactions contemplated hereby
requires any government or governmental agency approval nor will
such result in a breach of any term or provision of or constitute a
default or an event which with notice or lapse of time or both
could constitute a default under any lease, license, contract,
commitment, indenture, mortgage, deed of trust, instrument or other
agreement to which LO is a party or by which LO or its properties
are bound or constitute an event which would permit any party to
any such agreement to terminate such agreement or to accelerate the
maturity of any indebtedness or other obligation evidenced or
incurred pursuant to such agreement or result in the creation or
imposition of any
