EXHIBIT 10(d)
AGREEMENT FOR PURCHASE OF COMMON STOCK
AGREEMENT (this "Agreement"), made as of the 1st day of April, 1998, by
and between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, TECH TECHNOLOGY SERVICES,
LLC, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1998 TRUST,
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, and MCCLERE FAMILY TRUST, ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ (collectively the "Sellers" or the
"Shareholders"), and SOUTHEAST TIRE RECYCLING, INC., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Buyer" or "Southeast").
WHEREAS, the Sellers own all the outstanding shares of Millennium
Integration Technologies, Inc., a Texas corporation ("Millennium"); and
WHEREAS, the Buyer wishes to purchase and the Sellers desire to sell to the
Buyer all the outstanding shares of common stock of Millennium (the "Millennium
Common Shares") pursuant to the terms and conditions as set forth below.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
representations contained herein, the Parties agrees as follows:
ARTICLE I
SALE OF SECURITIES
1.01 SALE OF SHARES
Subject to the terms and conditions of this Agreement, the Sellers shall
sell their respective Millennium Common Shares to the Buyer, and the Buyer shall
purchase the same from the Sellers. Each of the Sellers is the sole owner of the
legal and beneficial interests in the number of shares appearing opposite
his/her/its name on Exhibit A annexed hereto. The Buyer shall not be obligated
to purchase any Millennium Common Shares unless all the Millennium Common Shares
shall be delivered to it on the Closing Date, in accordance with the provisions
of this Agreement and in proper form for transfer.
1.02 PAYMENT
The total purchase price shall be Six Million Two Hundred Fifty Thousand
(6,250,000) shares of common stock of Southeast (the "Southeast Common
Shares") payable as follows: Each of the Sellers shall receive Six Hundred
Twenty-Five (625) Southeast Common Shares for each Millennium Common Share
appearing opposite the Seller's name on Exhibit A. Payment of the stock
consideration ("Stock Consideration") shall be by delivery of certificates
representing the respective number of Southeast Common Shares as against
delivery of the Millennium Common Shares in proper form for transfer. The
Southeast Common Shares constituting the Stock Consideration may be (i) issued
by Southeast from its authorized but unissued capital stock or from treasury
stock; or (ii) transferred from stockholders of Southeast; or any combination of
the foregoing.
REPRESENTATIONS AND WARRANTIES OF MILLENNIUM
AND SHAREHOLDERS
The Principal of Millennium named on the signature page hereof
("Millennium Principal"), Millennium, and the Shareholders represent and
warrant to the Buyer the following:
2.01 ORGANIZATION
Millennium is a corporation organized in the State of Texas, and as of the
Closing, Millennium will be validly existing, and in good standing under the
laws of the State of Texas. Millennium has all necessary corporate powers to own
properties and carry on a business, and is duly qualified to do business and is
in good standing in every other state requiring such qualification.
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2.02 CAPITAL
The authorized capital stock of Millennium consists of 10,000 shares of
common stock, $.01 par value per share, of which all 10,000 Shares of Common
Stock are issued and outstanding. All outstanding shares are fully paid and
non-assessable, free of liens, encumbrances, options, rights, warrants
convertible securities, or other agreements or commitments obligating Southeast
to transfer or issue from treasury any additional shares of its capital stock.
2.03 FINANCIAL STATEMENTS
Exhibit B annexed hereto contains the audited financial statements of
Millennium Integration Technologies, LLC, Millennium's predecessor as of
December 31, 1996 and December 31, 1997, (the "Millennium Financial
Statements"). The Millennium Financial Statements accurately present the
financial position of Millennium as of the dates of the balance sheet included
in the Millennium Financial Statements.
2.04 ABSENCE OF CHANGES
Since the date of the most recent balance sheet in the Millennium Financial
Statements (the "Millennium Balance Sheet Date"), there have been no changes
in the financial condition or operations of Millennium, except changes in the
ordinary course of business, which changes have not in the aggregate been
materially adverse.
2.05 LITIGATION
As of the dates of both balance sheets comprising the Millennium Financial
Statements, neither the Principal nor Millennium is aware, and as of the Closing
neither the Principal nor Millennium will be aware, of any pending, threatened
or asserted claims, lawsuits or contingencies involving Millennium or its common
stock. There is no dispute of any kind between Millennium and any third party,
and no such third party, and no such dispute will exist at the closing of this
Agreement.
2.06 TAX RETURNS
Millennium (and/or its predecessor, Millennium Integration Technologies,
LLC,) has filed all federal, state and local tax returns required by law to be
filed, and has paid all taxes, assessments, and penalties due and payable. No
federal income tax returns of Millennium have been audited by the Internal
Revenue Service. The provision for taxes, if any and all federal, state,
country, and local taxes for the period ending on the date of that balance sheet
and for all prior periods, whether or not disputed. There are no present
disputes as to taxes of any nature payable by Millennium.
2.07 ABILITY TO CARRY OUT OBLIGATIONS
Millennium, its Principal and the Shareholders have the right, power and
authority to enter into and perform their respective obligations under this
Agreement. The execution and delivery of this Agreement by those parties and the
performance by them of their obligations hereunder will not cause, constitute or
conflict with or result in (a) any breach or violation or any provisions of or
constitute a default under any license, indenture, mortgage, charter,
instrument, articles of incorporation, bylaw, or other agreement or instrument
to which Millennium or any of them is a party, or by which they may be bound,
nor will any consents or authorizations of any party other then those hereto be
required, (b) and event that would cause Millennium to be liable to any party,
or (c) an event that would result in the creation of imposition of any lien,
charge, or encumbrance on any asset of Millennium or upon the Shares to be
acquired by Buyers.
2.08 TITLE
The Shareholders have good and marketable title to all of the Shares to be
sold to the Buyer pursuant to this Agreement. The Shares to be sold to Buyer
will be, at closing, free and clear of all aliens, security interests, pledges,
charges, claims and options.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Principal of Southeast named on the signature page hereof ("Southeast
Principal") and Southeast represent and warrant to the Sellers the following.
3.01 ORGANIZATION
Southeast is a corporation organized in the State of Florida, and as of the
Closing, Southeast will be validly existing, and in good standing under the laws
of Florida. Southeast has all necessary corporate powers to own properties and
carry on a business, and is duly qualified to do business and is in good
standing in every other state requiring such qualification.
3.02 CAPITAL
The authorized capital stock of Southeast consists of 100,000,000 shares of
common stock, $.0001 par value per share, of which 1,524,000 Shares of Common
Stock are issued and outstanding. All outstanding shares are fully paid and
non-assessable, free of liens, encumbrances, options, rights, warrants
convertible securities, or other agreements or commitments obligating Southeast
to transfer or issue from treasury any additional shares of its capital stock.
No shares have been issued since September, 1997.
3.03 FINANCIAL STATEMENTS
Exhibit C annexed hereto contains the audited financial statements of
Southeast as of December 31, 1996 and December 31, 1997, (the "Southeast
Financial Statements"). The Southeast Financial Statements accurately present
the financial position of Southeast as of the dates of the balance sheet
included in the Southeast Financial Statements.
3.04 ABSENCE OF CHANGES
Since the date of the most recent balance sheet in the Southeast Financial
Statements (the "Southeast Balance Sheet Date"), there has not been any change
in the financial condition or operations of Southeast, except changes in the
ordinary course of business, which changes have not in the aggregate been
materially adverse.
3.05 LIABILITIES
Southeast will not, as of the closing, have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or otherwise,
and whether due or to become due. As of the dates of both balance sheets
comprising the Financial Statements, neither the Principal nor Southeast is
aware, and as of the closing neither the Principal nor Southeast will be aware,
of any pending, threatened or asserted claims, lawsuits or contingencies
involving Southeast or its common stock. There is no dispute of any kind between
Southeast and any third party, and no such dispute will exist at the closing of
this Agreement. At closing, Southeast will be free from any and all liabilities,
liens, claims and/or commitments.
3.06 TAX RETURNS
Southeast has filed all federal, state and local tax returns required by
law to be filed, and has paid all taxes, assessments, and penalties due and
payable. No federal income tax returns of Southeast have been audited by the
Internal Revenue Service. The provision for taxes, if any and all federal,
state, country, and local taxes for the period ending on the date of that
balance sheet and for all prior periods, whether or not disputed. There are no
present disputes as to taxes of any nature payable by Southeast.
3.07 ABILITY TO CARRY OUT OBLIGATIONS
Southeast and its Principal have the right, power and authority to enter
into and perform their respective obligations under this Agreement which has
been approved by its shareholders. The execution and delivery of this Agreement
by those parties and the performance by them of their obligations hereunder will
not cause, constitute or conflict with or result in (a) any breach or violation
or any provisions of or constitute a default under any license, indenture,
mortgage, charter, instrument, articles of incorporation, bylaw, or other
agreement or instrument to which Southeast or any of them is a party, or by
which they may
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be bound, nor will any consents or authorizations of any party other then those
hereto be required, (b) and event that would cause Southeast to be liable to any
party, or (c) an event that would result in the creation of imposition of any
lien, charge, or encumbrance on any asset of Southeast or upon the Shares to be
acquired by Sellers.
3.08 CONTRACTS AND LEASES
Southeast does not now carry on any business. Southeast is not a party to
any contract, agreement or lease. No person holds a power of attorney from
Southeast.
3.09 LITIGATION
Southeast is not and has not been a party to any suit, action, arbitration,
or legal, administrative, or other proceeding, or pending governmental
investigation. To the best knowledge of Southeast and its Principal, there is no
basis for any action or proceeding pending and no action or proceeding is
threatened against Southeast. Southeast is not subject to or in default with
respect to any order, writ, injunction, or decree of any federal, state, local
or foreign court, department, agency, or instrumentality. Neither Southeast nor
the Principal is now or has ever been the subject of (a) any criminal
proceeding, or (b) any injunctive action or administrative proceeding brought by
the Securities and Exchange Commission.
3.10 TRANSFER AGENT
Southeast's stock transfer agent is Olde Monmouth Stock Transfer Co., Inc.
The stockholder list is to be delivered to Buyer at the Closing will be a true
and complete list of each shareholder of record, last known address and number
of shares.
3.11 SECURITIES AND EXCHANGE COMMISSION FILINGS
Southeast has made no filings with the Securities and Exchange Commission
except for the Forms D referred to herein; and Southeast is not now and never
has been required to be a reporting issuer under the Securities Exchange Act of
1934.
3.12 CONDUCT OF BUSINESS
Southeast currently is not conducting any business and neither owns nor
leases any assets. Prior to the closing, Southeast will not carry on any
business, and shall not (without the prior written approval of Seller) (i) sell,
pledge or assign any assets (ii) amend its Articles of Incorporation or Bylaws,
declare dividends, redeem or issue or sell stock or other securities, (iii)
incur any liabilities, (iv) acquire or dispose of any assets, enter into any
contract, guarantee obligations of any third party, or (v) enter into any other
transaction.
3.13 ENVIRONMENTAL MATTERS
Southeast has not been notified by any governmental authority, agency or
third party, and Southeast has no knowledge, of any violation by Southeast of
any Environmental Laws (as defined below). In conducting its prior business,
Southeast possessed all required licenses and permits to be issued by
governmental agencies pursuant to environmental, health and safety laws.
Southeast has not received any notice or any request for information, notice of
claim, demand or other notification that it may be potentially responsible with
respect to any investigation or cleanup of any threatened or actual release of
hazardous substances. To the knowledge of the Principal of Southeast and
Southeast, in conducting its business, all hazardous wastes and substances have
been stored, treated, disposed of and transported in conformance with all
requirements applicable to such hazardous substances and wastes. The Principal
of Southeast shall indemnify and hold harmless the Sellers and/or Southeast or
any successor to Southeast against all costs, claims or liabilities, whenever
such costs, claims or liabilities may be asserted, arising under or related in
any manner to the Environmental Laws and their application to the assets or the
business for conditions which existed or for events which occurred on or before
the date of closing, specifically including (A) fines, penalties, judgments,
awards, settlements, losses, damages, costs, fees (including reasonable
attorneys' and consultants' fees), expenses and disbursements, (B) defense and
other responses to any administrative or judicial action instituted by any third
person concerning any such liability, and (C) financial responsibility for (i)
cleanup costs and injunctive relief, including any removal, remedial or other
response actions, and
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(ii) any other compliance or remedial measures. For purpose of this Agreement,
"Environmental Laws" shall mean all Federal, state, local and foreign laws,
statues, rules, regulations and ordinances and all applicable state
environmental acts and including any rules, regulations, orders, decrees, plans,
codes, judgments, injunctions, notice or demand letters, prohibitions,
obligations, schedules, timetables, standards, conditions or requirements
issued, entered, approved or promulgated thereunder, relating to pollution or
protection of the environment, including laws relating to emissions, discharges,
releases or threatened releases of wastes in, into, onto or upon the environment
(including, without limitation, ambient air, surface water, ground water, or
land), or otherwise relating to the manufacture, processing, distribution, use,
treatment, collection, accumulation, storage, disposal, transport, or handling
of wastes.
3.14 CORPORATE DOCUMENTS
Copies of each of the following Southeast documents, which are true,
complete and correct in all material respects, at the Seller's option, either
will be delivered to Seller at Closing, remain at Southeast's principal office
or under the custody and control of its Principal:
Articles of Incorporation and any amendments thereto;
i. Bylaws;
ii. All Minutes of Shareholders Meetings;
iii. All Minutes of Directors Meetings;
iv. List of Officers and Directors;
v. Current List of Shareholders certified by Southeast's President;
vi. The Southeast Financial Statements described in Section 3.03;
vii. Certificate of Good Standing;
viii. Copies of all federal and state income tax returns;
ix. Copies of all Forms D filed with the SEC and Form M-11 filed with the
State of New York;
x. Signed undated, resignations of all current officers and directors
together with a signed, undated, unanimous consent of director
appointing Buyer's designees as Southeast's directors; and
3.15 CLOSING DOCUMENTS
All minutes, consents or other documents pertaining to Southeast to be
delivered at closing shall be valid and in accordance with the laws of Florida.
3.16 TITLE
The Southeast Common Shares to be conveyed to the Sellers pursuant to this
Agreement, will be, at closing, validly issued, nonassessable, free and clear of
all liens, security interests, pledges, charges, claims and options.
ARTICLE IV
CLOSING
The Closing of this transaction will occur when the Sellers deliver to the
Buyer all of the documents described below, and Buyer pays the Sellers the
purchase price in full. As part of the Closing, the following documents, in form
reasonably acceptable to counsel to the parties, shall be delivered:
4.1 BY THE BUYER:
A. The purchase price consisting of Certificates representing in the aggregate
6,250,000 Southeast Common Shares.
B. All of the documents referred to in Section 3 herein.
C. The Financial Statements described in Section 3.03 herein.
D. All of the business and corporate records of Southeast referred to in
Section 3.13 herein.
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4.2 BY THE SELLERS:
A. Certificates representing all 10,000 outstanding Millennium Common Shares
duly endorsed in blank.
B. The Millennium Financial Statements described in Section 2.03 of this
Agreement.
C. A Reverse Split Agreement, by which the Sellers agree, for his/her/itself
and on behalf of Southeast, not to reverse split the currently outstanding
shares of the Southeast's common stock for at least 18 months after the
Closing.
ARTICLE V
MISCELLANEOUS
5.01 CAPTIONS AND HEADINGS
The Article and paragraph headings throughout this Agreement are for
convenience and reference only, and shall in no way be deemed to define, limit,
or add to the meaning of any provision of this Agreement.
5.02 NO ORAL CHANGES
This Agreement and any provisions hereof, may not be waived, changed,
modified, or discharged orally, but only by an agreement in writing signed by
the party against whom enforcement of any waiver, change, modification, or
discharge is sought.
5.03 NON WAIVER
Except as otherwise expressly provided herein, no waiver of any covenant,
condition, or provision of this Agreement shall be deemed to have been made
unless expressly in writing and signed by the party against whom such waiver is
charged; and (i) the failure of any party to insist in any one or more cases
upon the performance of any of the provisions, covenants, or conditions; (ii)
the acceptance of performance of anything required by this Agreement to be
performed with knowledge of the breach or failure of a covenant, condition, or
provision hereof shall not be deemed a waiver of such breach or failure, and no
waiver by any party of one breach by another party shall be construed as a
waiver with respect to any other or subsequent breach.
5.04 TIME OF ESSENCE
Time is of the essence of this Agreement and of each and every provision
hereof.
5.05 ENTIRE AGREEMENT
This Agreement contains the entire Agreement and understanding between the
Parties hereto, and supersedes all prior agreements and understandings.
5.06 COUNTERPARTS
This Agreement may be executed simultaneously in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
5.07 BINDING EFFORT
This Agreement shall inure to and be binding upon the heirs, executors
personal representatives, successors and assigns of each of the parties to this
Agreement.
5.08 ARBITRATION
Any controversy or claim arising out of, or relating to, this Agreement, or
the making, performance, or interpretation thereof, shall be settled by
arbitration in New York, New York in accordance with the Rules of the American
Arbitration Association then existing, and judgment on the arbitration award may
be entered in any court having jurisdiction over the subject matter of the
controversy.
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5.09 EFFECT OF CLOSING
All representatives, warranties, covenants, and agreements of the parties
contained in this Agreement, or in any instrument, certificate, opinion, or
other writing provided for in it, shall be true and correct as of the Closing
and shall survive the Closing of this Agreement.
5.10 MUTUAL COOPERATION
The Parties shall cooperate with each other to achieve the purpose of this
Agreement, and shall execute such other and further documents and take such
other and future actions as may be necessary or convenient to effect the
transaction described herein.
AGREED AND ACCEPTED as of the date first above written.
SELLERS:
_________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
__________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tech Technology Services, LLC
By: _____________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1998 Trust
By: _____________
McClere Family Trust
By: _____________
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MILLENNIUM INTEGRATION TECHNOLOGIES, INC.
By: ______________________________
, Principal
SOUTHEAST TIRE RECYCLING, INC.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
, Principal
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