EXHIBIT 99.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made and entered
into as of the 1st day of May 2008 by and among Xxxxxx Valley Software, Inc., a
California corporation ("PVS"), Xxxxx Xxxxx, an individual who owns 50% of the
total issued and outstanding stock of PVS ("KS"), Xxxxx Xxxxxxx, an individual
who owns 50% of the total issued and outstanding stock of PVS ("LS"), (KS and LS
are collectively referred to as the "Seller"), and Environmental Service
Professionals, Inc., a Nevada corporation (the "Buyer" or "Company"), with
respect to the following facts:
R E C I T A L S
A. Seller owns 100% of the total issued and outstanding capital
stock of PVS.
B. PVS is a software development company dedicated to developing
easy to use computer based solutions for producing
standardized industry inspection reports based on narratives
from a master library to provide industry professionals with
the software tools, training and education necessary to
confront the environmental and safety issues faced by property
owners, inspectors, remediation experts, and all other related
industry personnel in the United States and Canada (the
"Business").
C. PVS, LS, KS and the Buyer entered into that certain Term Sheet
for Purchase of Stock of Xxxxxx Valley Software, Inc., dated
March 17, 2008 (the "Term Sheet") pursuant to which the Buyer
had agreed to purchase 100% of the outstanding stock of PVS
from LS and KS, and LS and KS had agreed to sell such stock to
Buyer.
D. The Company desires to acquire from Seller and Seller desires
to sell to the Company 100% of the total issued and
outstanding stock of PVS in exchange for 650,000 shares of the
Company's common stock plus $400,000 in cash, payable on the
Closing of the purchase under this Agreement, as defined in
Section 2.1 of this Agreement.
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged by the parties to this Agreement,
and in light of the above recitals to this Agreement, the parties to this
Agreement hereby agree as follows:
1. SALE AND PURCHASE
1.1 SALE AND PURCHASE OF STOCK. In consideration for the Purchase Price
(as defined in Section 1.2 of this Agreement) and the other covenants of the
Company in this Agreement, Seller agrees to sell to the Buyer, and the Buyer
agrees to purchase from Seller, 100,000 shares of the common stock of PVS (the
"PVS Stock") on the Closing Date (as defined in Section 4.1 of this Agreement).
1.2 PURCHASE PRICE. As consideration for the sale by Seller of the
shares of PVS Stock to the Company on the Closing Date, the Company will pay to
Seller the following (the "Purchase Price"): (i) $400,000 in cash (the "Cash
Payment"), payable as provided in Section 1.2(a) of this Agreement, and (ii)
650,000 shares (the "Shares") of the Company's common stock (the "Stock
Payment"), issuable as provided in Section 1.2(b) of this Agreement. The
certificates evidencing the Shares will bear the following legend:
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"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED
UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
(a) CASH PAYMENT. The Buyer will pay to the Seller a total cash
payment of $400,000 payable subject to the terms and
conditions of this Agreement. The Cash Payment will be made
50% to LS and 50% to KS, and will be made as per the following
schedule:
i. $200,000 upon Closing.
ii. $100,000 30 days after Closing.
iii. $100,000 60 days after Closing.
(b) COMPANY SHARES. Seller will be issued a total of 650,000
Shares of the Company's common stock as part of the Purchase
Price, subject to the terms and conditions of this Agreement.
The Stock Payment will be made 50% to LS and 50% to KS, as per
the following schedule:
i. 250,000 shares upon Closing
ii. 200,000 shares 90 days after Closing
iii. 200,000 shares 180 days after Closing
(c) HOLDING PERIOD AND PIGGYBACK REGISTRATION RIGHTS. All Shares
of the Company's common stock issued to Seller by the Company
under this Agreement shall be held by Seller for a period of
at least one year from the date of Closing. Seller will have
piggyback registration rights with respect to the Shares,
subject to potential adjustment by the underwriter for such
registration statement, if any. Accordingly, the Company
agrees to notify the Seller in writing at least ten days prior
to the filing of any registration statement by it under
Section 5 of the Securities Act of 1933, as amended, on Form
X-0, XX-0 or S-3, and to include all of Seller's Shares that
are requested by them in writing for inclusion in the
registration statement, subject to the underwriter's (if any)
reasonable approval.
(d) REPURCHASE OF SHARES. There is no provision made in this
Agreement for the right to cause a sale of any portion of the
Shares back to Buyer.
(e) RIGHT OF OFFSET. Buyer may offset against any payment due to
seller hereunder, thereby reducing said payment, by the amount
of any damage caused to Buyer as a result of any breach of
covenant, warranty or representation by KS, LS, or PVS in this
agreement or its Exhibits or schedules.
2. COVENANT NOT TO COMPETE.
As an inducement to Buyer to enter into and to perform its obligations
under this Agreement, and subject to the provisions of Section 5.16 herein, LS
and KS covenant to enter into a non-compete agreement with the Buyer on or
before the Closing Date pursuant to which LS and KS will agree that for a period
of the longer of (i) 12 months from the Closing Date or (ii) 12 months from the
date of termination of respective employment with the Company referenced in
Section 3 of this Agreement, and in any event while LS and KS are employees,
officers, directors, or consultants of the Buyer or any of its affiliates, they
will not directly or indirectly, whether (a) as employees, agents, consultants,
employers, principal, partners, officers or directors; (b) holders of more than
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five percent of any class of equity securities or more than five percent of the
aggregate principal amount of any class of equity securities or more than five
percent of the aggregate principal amount of any class of debt, notes or bonds
of a company with publicly traded equity securities; or (c) in any other
individual or representative capacities whatsoever, in each case for their own
account or the account of any other person or entity, engage in any business or
trade competing with the then business or trade of the Buyer or its affiliates
in the United States (the "Non-Compete Agreement"). LS and KS acknowledge that
the restrictions set forth in this Section 2 are fair and reasonable with
respect to their duration, scope and area. If, at the time of enforcement of
this Section 2, a court holds that the duration, scope or area restrictions
stated herein are unreasonable under circumstances then existing, the parties
agree that the maximum duration, scope or area reasonable under such
circumstances will be substituted for the stated duration, scope or area. In the
event of any breach of any provisions of this Section 2, Buyer will have the
right, in addition to any other rights and remedies existing in its favor
hereunder, to enforce its rights and the obligations LS and KS under this
Section 2 not only by an action or actions for damages but also by an action or
actions for specific performance and/or injunctive or other equitable relief in
order to enforce or prevent any violations of the provisions of this Section 2.
The parties agree that the sum of fifty thousand dollars ($50,000) of the cash
portion of the Purchase Price will be allocated to the covenant not to compete
set forth in Section 2 of this Agreement.
3. EMPLOYMENT.
3.1. TRANSITION PERIOD. LS and KS agree to assist with the transition
of PVS into the ESP organization for the first 60 days from closing without
salary or fees.
3.2. EMPLOYMENT OF KS. There is no provision for employment of KS.
3.3. EMPLOYMENT OF LS. Sixty-one (61) calendar days after the Closing
Date (as defined in Section 4.1 of this Agreement), the Company will employ LS
on an "at-will" basis as the Director of Operations of PVS of the PVS Division
to be formed by Buyer. LS agrees to remain in this position for at least 12
months after the Closing. LS will have an annualized salary of $125,000 paid per
the Buyer's payroll policies and access to the Buyer benefit plans as
administered by the Company's professional service organization. LS will be
employed for the purpose of using all reasonable efforts to create and begin to
implement a three-year strategic plan to allow the PVS Business to grow revenues
to annual revenues as determined by the Buyer's management. LS shall handle all
day to day responsibilities of PVS consistent with the Director of Operations
position (unless otherwise specifically delegated to Buyer pursuant to this
Agreement) including but not limited to: (a) PVS financial responsibilities as
stated and agreed to in the PVS 2008 and 2009 budget outline, (b) PVS monthly
financial documentation as reasonably required by Buyer by the 10th day of each
month for the prior month, and (c) transfer of PVS staff to Buyer leased
staffing program serviced by Oasis Staffing within 30 days after Closing. In the
event that LS's employment is terminated without cause prior to 180 days after
Closing, PVS (or its parent company, the Buyer) shall pay the remaining amount
of LS's share of the outstanding Purchase Price, if any, according to the time
schedule stated in Section 1.2(a) of this Agreement. "Cause" shall mean fraud,
deceit or intentional misconduct.
4. CLOSING AND FURTHER ACTS.
4.1 TIME AND PLACE OF CLOSING. Upon satisfaction or waiver of the
conditions set forth in Section 8 of this Agreement, the closing of the
transactions contemplated by this Agreement (the "Closing") will take place at
0000 X. Xxxxxxxx Xxxxxx Xxx, Xxxx Xxxxxxx, Xxxxxxxxxx 00000 at 11:00 a.m. (local
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time) on the date that the parties may mutually agree in writing, but in no
event later than June 16, 2008 (the "Closing Date"), unless extended by mutual
written agreement of the parties.
4.2 ACTIONS AT CLOSING. At the Closing, the following actions will take
place:
(a) Buyer will pay to Seller the Cash Payment and Stock
Payment of the Purchase Price pursuant to the distribution described in
Section 1.2 of this Agreement by delivery of (i) the appropriate amount
of cash or cash equivalent which will be deposited in a single account
designated by Seller in a writing delivered to the Buyer prior to the
Closing, and (ii) stock certificates evidencing the Stock Payment.
(b) PVS will tender to the Company certificates and any other
documents evidencing the PVS Stock.
(c) PVS will deliver to Buyer copies of necessary resolutions
of the Board of Directors of PVS authorizing the execution, delivery,
and performance of this Agreement and the other agreements contemplated
by this Agreement for PVS' execution, and consummation of the
transactions contemplated by this Agreement, which resolutions have
been certified by an officer of PVS as being valid and in full force
and effect.
(d) Buyer will deliver to PVS copies of corporate resolutions
of the Board of Directors of Buyer authorizing the execution, delivery
and performance of this Agreement and the other agreements contemplated
by this Agreement for Buyer's execution, if any, and consummation of
the transactions contemplated by this Agreement, which resolutions have
been certified by an officer of Buyer as being valid and in full force
and effect.
(e) PVS will deliver to the Buyer true and complete copies of
PVS' Certificate of Incorporation and a Certificate of Good Standing
from the appropriate official of PVS' jurisdiction of incorporation,
which certificates and certificates of good standing are dated not more
than 30 days prior to the Closing Date.
(g) Any additional documents or instruments as a party may
reasonably request or as may be necessary to evidence and affect the
sale, assignment, transfer and delivery of the PVS Stock to the Buyer.
4.3 ACTIONS POST CLOSING. Post Closing Buyer will perform the following
actions:
(a) All management oversight of PVS.
(b) Collect all receivables due PVS.
(c) All PVS funding requirements, including but not limited to
supplying short-term capital needs should cash flow shortages arise.
(d) Marketing and public relations will be a joint effort
between Buyer and PVS.
(e) All human resources requirements, payroll, benefits.
(f) All legal issues.
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(g) Pay the $56,000 payable due to IntuoSoft, Inc. within 5
business days of Closing.
(h) Satisfy credit card obligations of PVS in accordance with
Section 7.1(f).
5. REPRESENTATIONS AND WARRANTIES OF PVS, KS AND LS.
PVS, KS and LS represent and warrant to Buyer as follows:
5.1 POWER AND AUTHORITY; BINDING NATURE OF AGREEMENT. PVS, KS and LS
have full power and authority to enter into this Agreement and to perform their
obligations hereunder. The execution, delivery, and performance of this
Agreement by PVS has been duly authorized by all necessary action on its part.
Assuming that this Agreement is a valid and binding obligation of each of the
other parties hereto, this Agreement is a valid and binding obligation of PVS,
KS and LS.
5.2 SUBSIDIARIES. There is no corporation, general partnership, limited
partnership, joint venture, association, trust or other entity or organization
that PVS directly or indirectly controls or in which PVS directly or indirectly
owns any equity or other interest.
5.3 GOOD STANDING. PVS (i) is duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it is incorporated,
(ii) has all necessary power and authority to own its assets and to conduct its
business as it is currently being conducted, and (iii) is duly qualified or
licensed to do business and is in good standing in every jurisdiction (both
domestic and foreign) where such qualification or licensing is required.
5.4 CHARTER DOCUMENTS AND CORPORATE RECORDS. PVS has delivered to Buyer
complete and correct copies or provided Buyer with the right to inspect true and
complete copies of all (i) the articles of incorporation, bylaws and other
charter or organizational documents of PVS, including all amendments thereto,
(ii) the stock records of PVS, and (iii) the minutes and other records of the
meetings and other proceedings of the shareholders and directors of PVS. PVS is
not in violation or breach of (i) any of the provisions of its articles of
incorporation, bylaws or other charter or organizational documents, or (ii) any
resolution adopted by its shareholders or directors. There have been no meetings
or other proceedings of the shareholders or directors of PVS that are not fully
reflected in the appropriate minute books or other written records of PVS.
5.5 FINANCIAL STATEMENTS. PVS has delivered to Buyer the following
financial statements relating to PVS prior to the Closing (the "PVS Financial
Statements"): (i) the unaudited balance sheet of PVS as of December 31, 2007 and
2006 and the unaudited balance sheet of April 30, 2008, and (ii) the unaudited
statements of income for the years ended December 31, 2007 and 2006 and the
unaudited statements of income for the four months ended April 30, 2008 and the
unaudited statements of retained earnings and shareholders' equity as of April
30, 2008. Except as stated therein or in the notes thereto, the PVS Financial
Statements: (a) present fairly the financial position of PVS as of the
respective dates thereof and the results of operations and changes in financial
position of PVS for the respective periods covered thereby; and (b) have been
prepared in accordance with PVS' normal business practices applied on a
consistent basis throughout the periods covered.
5.6 CAPITALIZATION. The authorized capital stock of PVS consists of
100,000 shares of common stock, no par value per share, of which 100,000 shares
are issued and outstanding, and no shares of preferred stock. All of the
outstanding shares of the capital stock of PVS are validly issued, fully paid
and nonassessable, and have been issued in full compliance with all applicable
federal, state, local and foreign securities laws and other laws.
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5.7 ABSENCE OF CHANGES. Except as otherwise set forth on Schedule 5.7
hereto or otherwise disclosed to Buyer in writing prior to the Closing, since
January 1, 2008:
(a) There has not been any material adverse change in the
business, condition, assets, operations or prospects of PVS and no
event has occurred or, to PVS' knowledge, is expected to occur after
the Closing that might have a material adverse effect on the business,
condition, assets, operations or prospects of PVS.
(b) PVS has not (i) declared, set aside or paid any dividend
or made any other contribution in respect of any shares of capital
stock, nor (ii) repurchased, redeemed or otherwise reacquired any
shares of capital stock or other securities.
(c) PVS has not sold or otherwise issued any shares of capital
stock or any other securities.
(d) PVS has not amended its articles of incorporation, bylaws
or other charter or organizational documents, nor has it effected or
been a party to any merger, recapitalization, reclassification of
shares, stock split, reverse stock split, reorganization or similar
transaction.
(e) PVS has not formed any subsidiary or contributed any funds
or other assets to any subsidiary.
(f) PVS has not purchased or otherwise acquired any assets,
nor has it leased any assets from any other person, except in the
ordinary course of business consistent with past practice.
(g) PVS has not made any capital expenditure outside the
ordinary course of business or inconsistent with past practice, or in
an amount exceeding five thousand dollars ($5,000) singly or in excess
often thousand dollars ($10,000) in the aggregate, without Buyer's
consent.
(h) PVS has not sold or otherwise transferred any assets to
any other person, except in the ordinary course of business consistent
with past practice and at a price equal to the fair market value of the
assets transferred.
(i) There has not been any loss, damage or destruction to any
of the properties or assets of PVS (whether or not covered by
insurance).
(j) PVS has not written off as uncollectible any indebtedness
or accounts receivable, except for write offs that were made in the
ordinary course of business consistent with past practice and that
involved less than $5,000 singly and less than $10,000 in the
aggregate.
(k) PVS has not leased any assets to any other person except
in the ordinary course of business consistent with past practice and at
a rental rate equal to the fair rental value of the leased assets.
(l) PVS has not mortgaged, pledged, hypothecated or otherwise
encumbered any assets, except in the ordinary course of business
consistent with past practice.
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(m) PVS has not entered into any contract, or incurred any
debt, liability or other obligation (whether absolute, accrued,
contingent or otherwise), except for (i) contracts that were entered
into in the ordinary course of business consistent with past practice
and that have terms of less than six months and do not contemplate
payments by or to PVS which will exceed, over the term of the contract,
ten thousand dollars ($10,000) in the aggregate, and (ii) current
liabilities incurred in the ordinary course of business consistent with
the past practice.
(n) PVS has not made any loan or advance to any other person,
except for advances that have been made to customers in the ordinary
course of business consistent with past practice and that have been
properly reflected as "accounts receivables."
(o) Other than annual raises or bonuses paid or provided
consistent with past business practices, PVS has not paid any bonus to,
or increased the amount of the salary, fringe benefits or other
compensation or remuneration payable to, any of the directors, officers
or employees of PVS.
(p) No contract or other instrument to which PVS is or was a
party or by which PVS or any of its assets are or were bound has been
amended or terminated, except in the ordinary course of business
consistent with past practice.
(q) PVS has not discharged any lien or discharged or paid any
indebtedness, liability or other obligation, except for current
liabilities that (i) are reflected in the PVS Financial Statements as
of April 30, 2008 or have been incurred since April 30, 2008 in the
ordinary course of business consistent with past practice, and (ii)
have been discharged or paid in the ordinary course of business
consistent with past practice.
(r) PVS has not forgiven any debt or otherwise released or
waived any right or claim, except in the ordinary course of business
consistent with past practice.
(s) PVS has not changed its methods of accounting or its
accounting practices in any respect.
(t) PVS has not entered into any transaction outside the
ordinary course of business or inconsistent with past practice.
(u) PVS has not agreed or committed (orally or in writing) to
do any of the things described in clauses (b) through (t) of this
Section 5.7.
5.8 ABSENCE OF UNDISCLOSED LIABILITIES. PVS has no debt, liability or
other obligation of any nature (whether due or to become due and whether
absolute, accrued, contingent or otherwise) that is not reflected or reserved
against in the PVS Financial Statements as of April 30, 2008, except for
obligations incurred since April 30, 2008 in the ordinary and usual course of
business consistent with past practice.
5.9 PVS ASSETS.
(a) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not result in
a breach of the terms and conditions of, or result in a loss of rights
under, or result in the creation of any lien, charge or encumbrance
upon, any of the assets of the Business.
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(b) PVS has good and marketable title to all of its assets,
free and clear of all mortgages, liens, leases, pledges, charges,
encumbrances, equities or claims, except as expressly disclosed in
writing by PVS to Buyer prior to the Closing Date.
(c) PVS owns all copyrights, trademarks, and tradenames
related to the Business and the use of such copyrights, trademarks, and
tradenames has not and will not infringe on the rights of any third
party.
(d) PVS' assets are not subject to any material liability,
absolute or contingent, which has not been disclosed by PVS to Buyer in
writing prior to the Closing Date nor is PVS subject to any liability,
absolute or contingent, which has not been disclosed to and
acknowledged by Buyer in writing prior to the Closing Date.
(e) PVS has provided to Buyer in writing an accurate
description of all of the assets of PVS or used in the business of PVS.
(f) PVS has provided to Buyer in writing a list of all
contracts, agreements, licenses, leases, arrangements, commitments and
other undertakings to which PVS is a party or by which it or its
property is bound. Except as specified by PVS to Buyer in writing prior
to the Closing Date, all of such contracts, agreements, leases,
licenses and commitments are valid, binding and in full force and
effect.
(g) All of the machinery, equipment, furniture and fixtures as
of the Closing Date will be in the same condition as on the date of
this Agreement, normal wear and tear excepted. PVS hereby conveys to
Buyer (to the extent it is able under the applicable warranty
documents) any and all product warranty or similar rights that PVS may
have against third parties in respect of the condition of any assets.
5.10 COMPLIANCE WITH LAWS; LICENSES AND PERMITS. PVS is not in
violation of, nor has it failed to conduct its business in full compliance with,
any applicable federal, state, local or foreign laws, regulations, rules,
treaties, rulings, orders, directives or decrees. PVS has delivered to Buyer a
complete and accurate list and provided Buyer with the right to inspect true and
complete copies of all of the licenses, permits, authorizations and franchises
to which PVS is subject and all said licenses, permits, authorizations and
franchises are valid and in full force and effect. Said licenses, permits,
authorizations and franchises constitute all of the licenses, permits,
authorizations and franchises necessary to permit PVS to conduct its business in
the manner in which it is now being conducted, and PVS is not in violation or
breach of any of the terms, requirements or conditions of any of said licenses,
permits, authorizations or franchises.
5.11 TAXES. Except as disclosed herein, PVS has accurately and
completely filed with the appropriate United States state, local and foreign
governmental agencies all tax returns and reports required to be filed (subject
to permitted extensions applicable to such filings), and has paid or accrued in
full all taxes, duties, charges, withholding obligations and other governmental
liabilities as well as any interest, penalties, assessments or deficiencies, if
any, due to, or claimed to be due by, any governmental authority (including
taxes on properties, income, franchises, licenses, sales and payrolls). (All
such items are collectively referred to herein as "Taxes"). The PVS Financial
Statements fully accrue or reserve all current and deferred taxes. PVS is not a
party to any pending action or proceeding, nor is any such action or proceeding
threatened by any governmental authority for the assessment or collection of
Taxes. No liability for taxes has been incurred other than in the ordinary
course of business. There are no liens for Taxes except for liens for property
taxes not yet delinquent. PVS is not a party to any Tax sharing, Tax allocation,
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Tax indemnity or statute of limitations extension or waiver agreement and in the
past year has not been included on any consolidated combined or unitary return
with any entity other than PVS. PVS has duly withheld from each payment made to
each person from whom such withholding is required by law the amount of all
Taxes or other sums (including but not limited to United States federal income
taxes, any applicable state or municipal income tax, disability tax,
unemployment insurance contribution and Federal Insurance Contribution Act
taxes) required to be withheld therefrom and has paid the same to the proper tax
authorities prior to the due date thereof. To the extent any Taxes withheld by
PVS have not been paid as of the Closing Date because such Taxes were not yet
due, such Taxes will be paid to the proper tax authorities in a timely manner.
All Tax returns filed by the PVS are accurate and comply with and were prepared
in accordance with applicable statutes and regulations.
5.12 ENVIRONMENTAL COMPLIANCE MATTERS. To the best of the knowledge of
PVS, without conducting any study or independent investigation, PVS has at all
relevant times with respect to the Business been in material compliance with all
environmental laws, and has received no potentially responsible party notices or
similar notices from any governmental agencies or private parties concerning
releases or threatened releases of any "hazardous substance" as that term is
defined under 42 U.S.C. 960(1)(14).
5.13 COMPENSATION. Since December 31, 2007, PVS has not paid or
committed to pay to or for the benefit of any of its officers or directors any
compensation of any kind other than wages, salaries and benefits at times and
rates in effect on December 31, 2007. PVS does not have any bonus plan or
obligations with respect to any bonus plan. PVS has provided Buyer with a full
and complete list of all officers, directors, employees and consultants of PVS
as of the date hereof, specifying their names and job designations, their dates
of hire, the total amount paid or payable as wages, salaries or other forms of
direct compensation, and the basis of such compensation, whether fixed or
commission or a combination thereof.
5.14 NO DEFAULT.
(a) Each of the contracts, agreements or other instruments of
PVS and each of the standard Customer Agreements or contracts of PVS is
a legal, binding and enforceable obligation by or against PVS, subject
to the effect of applicable bankruptcy, insolvency, reorganization,
moratorium or other similar federal or state laws affecting the rights
of creditors and the effect or availability of rules of law governing
specific performance, injunctive relief or other equitable remedies
(regardless of whether any such remedy is considered in a proceeding at
law or in equity). No party with whom PVS has an agreement or contract
is in default thereunder or has breached any terms or provisions
thereof which is material to the conduct of PVS' business.
(b) PVS has performed, or is now performing, the obligations
of, and PVS is not in material default (or would by the lapse of time
and/or the giving of notice be in material default) in respect of, any
contract, agreement or commitment binding upon it or its assets or
properties and material to the conduct of its Business. No third party
has raised any claim, dispute or controversy with respect to any of the
executory contracts of PVS, nor has PVS received notice of warning of
alleged nonperformance, delay in delivery or other noncompliance by PVS
with respect to its obligations under any of those contracts, nor are
there any facts which exist indicating that any of those contracts may
be totally or partially terminated or suspended by the other parties
thereto.
5.15 PRODUCT WARRANTIES. Except as otherwise disclosed in writing to
Buyer prior to the Closing and for warranties under applicable law, (a) there
are no warranties, express or implied, written or oral, with respect to the
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products of PVS, (b) there are no pending or threatened claims with respect to
any such warranty, and (c) PVS has no, and after the Closing Date, will have no,
liability with respect to any such warranty, whether known or unknown, absolute,
accrued, contingent, or otherwise and whether due or to become due, other than
customary returns in the ordinary course of business that are fully reserved
against in the PVS Financial Statements.
5.16 PROPRIETARY RIGHTS. The Buyer acknowledges that KS is a lecturer
and publicist, has given lectures and published numerous books, articles,
manuals, guides, and forms on home inspections and home inspector training, and
intends to continue such non-competitive activities during the Non-Compete
period set forth in Section 2 hereto and any related non-compete agreement.
Buyer also acknowledges that KS created numerous portions of the master library
and forms utilized in the PVS Business. Buyer acknowledges that much of the
language is personal and idiosyncratic. Buyer also acknowledges that at the
conclusion of the Non-Compete period, KS may, and reserves the right to, author,
develop, promote, sell, and market home inspection software and related
materials which would by its or their nature be similar to or derivative of the
subject matter of the master library and forms utilized in the PVS Business.
Buyer reserves all rights to defend itself if exact quotes or material portions
of the PVS Business are utilized to directly compete with Buyer.
(a) Buyer specifically acknowledges the following items and
their respective contents are not part of the purchase:
i. Manual For a Happy Home.
ii. Inspect and Protect.
iii. Digital Recordings of the compellation of
Avoiding Litigation essays
(b) PVS has provided Buyer in writing a complete and accurate
list and provided Buyer with the right to inspect true and complete
copies of all software, patents and applications for patents,
trademarks, trade names, service marks, and copyrights, and
applications therefore, owned or used by PVS or in which it has any
rights or licenses, except for software used by PVS and generally
available on the commercial market. PVS has provided Buyer with a
complete and accurate description of all agreements or provided Buyer
with the right to inspect true and complete copies of all agreements of
PVS with each officer, employee or consultant of PVS providing PVS with
title and ownership to patents, patent applications, trade secrets and
inventions developed or used by PVS in its business. To PVS' knowledge,
all of such agreements are valid, enforceable and legally binding,
subject to the effect or availability of rules of law governing
specific performance, injunctive relief or other equitable remedies
(regardless of whether any such remedy is considered in a proceeding at
law or in equity).
(c) PVS owns or possesses licenses or other rights to use all
computer software, software programs, patents, patent applications,
trademarks, trademark applications, trade secrets, service marks, trade
names, copyrights, inventions, drawings, designs, customer lists,
propriety know-how or information, or other rights with respect thereto
(collectively referred to as "Proprietary Rights"), used in the
business of PVS, and the same are sufficient to conduct PVS' business
as it has been and is now being conducted.
(d) To PVS' knowledge, the operations of PVS do not conflict
with or infringe, and no one has asserted to PVS that such operations
conflict with or infringe on any Proprietary Rights owned, possessed or
used by any third party. There are no claims, disputes, actions,
proceedings, suits or appeals pending against PVS with respect to any
Proprietary Rights, and to the knowledge of the management of PVS none
has been threatened against PVS. To the best knowledge of the
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management of PVS there are no facts or alleged fact which would
reasonably serve as a basis for any claim that PVS does not have the
right to use, free of any rights or claims of others, all Proprietary
Rights in the development, manufacture, use, sale or other disposition
of any or all products or services presently being used, furnished or
sold in the conduct of the business of PVS as it has been and is now
being conducted.
(e) No employee of PVS is in violation of any term of any
employment contract, proprietary information and inventions agreement,
non-competition agreement, or any other contract or agreement relating
to the relationship of any such employee with PVS or any previous
employer.
5.17 INSURANCE. PVS has provided Buyer with a complete and accurate
list of all policies of insurance and provided Buyer with the right to inspect
true and complete copies of all policies of insurance to which PVS is a party or
is a beneficiary or named insured as of the Closing Date. PVS has in full force
and effect, with all premiums due thereon paid, the policies of insurance set
forth therein. All the insurable properties of PVS are insured in amounts and
coverage and against risks and losses which are adequate and usually insured
against by persons holding or operating similar properties in similar
businesses. There were no claims in excess of $10,000 asserted or currently
outstanding under any of the insurance policies of PVS in respect of all motor
vehicle, general liability, errors and omissions, workers compensation, and
medical claims during the calendar year ending on December 31, 2007 or the four
months ending April 30, 2008.
5.18 LABOR RELATIONS. None of the employees of PVS are represented by
any union or are parties to any collective bargaining arrangement, and no
attempts are being made to organize or unionize any of PVS' employees. Except as
disclosed in writing to Buyer prior to the Closing, there is not presently
pending or existing, and there is not presently threatened, any (a) strike,
slowdown, picketing, work stoppage or employee grievance process, or (b) action,
arbitration, audit, hearing, investigation, litigation, or suit (whether civil,
criminal, administrative, investigative, or informal) against or affecting PVS
relating to the alleged violation of any legal requirement pertaining to labor
relations or employment matters. PVS is in compliance with all applicable laws
respecting employment and employment practices, terms and conditions of
employment, wages and hours, occupational safety and health and is not engaged
in any unfair labor practices. PVS is in compliance with the Immigration Reform
and Control Act of 1986.
5.19 S CORPORATION STATUS. PVS has elected to be treated as, and is
currently governed by, Subchapter S of the Internal Revenue Code of 1986, as
amended. Seller shall change the corporate status from Subchapter S to that of a
"C" corporation prior to Closing.
5.20 CONDITION OF PREMISES. All real property leased by PVS is in good
condition and repair, ordinary wear and tear excepted.
5.21 NO DISTRIBUTOR AGREEMENTS. Except as disclosed in writing to Buyer
prior to the Closing, PVS is not a party to, nor is the property of PVS bound
by, any distributors' or manufacturer's representative or agency agreement.
5.22 CONFLICT OF INTEREST TRANSACTIONS. No past or present shareholder,
director, officer or employee of PVS or any of their affiliates (i) is indebted
to, or has any financial, business or contractual relationship or arrangement
with PVS, or (ii) has any direct or indirect interest in any property, asset or
right which is owned or used by PVS or pertains to the business of PVS with the
exception of outstanding shareholder loans which will be deemed paid in full,
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cancelled and fully discharged upon the Closing without any additional payment
by Buyer.
5.23 LITIGATION. There is no action, suit, proceeding, dispute,
litigation, claim, complaint or investigation by or before any court, tribunal,
governmental body, governmental agency or arbitrator pending or threatened
against or with respect to PVS which (i) if adversely determined would have an
adverse effect on the business, condition, assets, operations or prospects of
PVS, or (ii) challenges or would challenge any of the actions required to be
taken by PVS under this Agreement. There exists no basis for any such action,
suit, proceeding, dispute, litigation, claim, complaint or investigation.
5.24 NON-CONTRAVENTION. Neither (a) the execution and delivery of this
Agreement, nor (b) the performance of this Agreement will: (i) contravene or
result in a violation of any of the provisions of the organizational documents
of PVS; (ii) contravene or result in a violation of any resolution adopted by
the shareholders or directors of PVS; (iii) result in a violation or breach of,
or give any person the right to declare (whether with or without notice or lapse
of time) a default under or to terminate, any agreement or other instrument to
which PVS is a party or by which PVS or any of its assets are bound; (iv) give
any person the right to accelerate the maturity of any indebtedness or other
obligation of PVS; (v) result in the loss of any license or other contractual
right of PVS; (vi) result in the loss of, or in a violation of any of the terms,
provisions or conditions of, any governmental license, permit, authorization or
franchise of PVS; (vii) result in the creation or imposition of any lien,
charge, encumbrance or restriction on any of the assets of PVS; (viii) result in
the reassessment or revaluation of any property of PVS; by any taxing authority
or other governmental authority; (ix) result in the imposition of, or subject
PVS; to any liability for, any conveyance or transfer tax or any similar tax; or
(x) result in a violation of any law, rule, regulation, treaty, ruling,
directive, order, arbitration award, judgment or decree to which PVS or any of
its assets or any limited liability interests are subject.
5.25 APPROVALS. PVS has provided Buyer with a complete and accurate
list of all jurisdictions in which PVS is authorized to do business. No
authorization, consent or approval of, or registration or filing with, any
governmental authority is required to be obtained or made by PVS in connection
with the execution, delivery or performance of this Agreement, including the
conveyance to Buyer of the Business.
5.26 BROKERS. PVS has not agreed to pay any brokerage fees, finder's
fees or other fees or commissions with respect to the transactions contemplated
by this Agreement, and, to PVS' knowledge, no person is entitled, or intends to
claim that it is entitled, to receive any such fees or commissions in connection
with such transaction.
5.27 SPECIAL GOVERNMENT LIABILITIES. PVS has no existing or pending
liabilities, obligations or deferred payments due to any federal, state or local
government agency or entity in connection with its business or with any program
sponsored or funded in whole or in part by any federal, state or local
government agency or entity, nor is PVS or KS or LS aware of any threatened
action or claim or any condition that could support an action or claim against
PVS, the Business for any of said liabilities, obligations or deferred payments.
5.28 FULL DISCLOSURE. Neither this Agreement (including the exhibits
hereto) nor any statement, certificate or other document delivered to Buyer by
or on behalf of PVS contains any untrue statement of a material fact or omits to
state a material fact necessary to make the representations and other statements
contained herein and therein not misleading.
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5.29 REPRESENTATIONS TRUE ON CLOSING DATE. The representations and
warranties of PVS set forth in this Agreement are true and correct on the date
hereof, and will be true and correct on the Closing Date as though such
representations and warranties were made as of the Closing Date. Buyer's
knowledge will not act as a waiver of any breach of the representations and
warranties contained herein by PVS, KS or LS.
5.30 TAX ADVICE. PVS, KS and LS hereby represent and warrant that they
have sought their own independent tax advice regarding the transactions
contemplated by this Agreement and neither PVS nor KS or LS have relied on any
representation or statement made by Buyer, the Company, or their representatives
regarding the tax implications of such transactions.
6. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to PVS as follows:
6.1 POWER AND AUTHORITY; BINDING NATURE OF AGREEMENT. Buyer has full
power and authority to enter into this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement by Buyer
have been duly authorized by all necessary action on its part. Assuming that
this Agreement is a valid and binding obligation of the other party hereto, this
Agreement is a valid and binding obligation of Buyer.
6.2 APPROVALS. To Buyer's knowledge, no authorization, consent or
approval of, or registration or filing with, any governmental authority or any
other person is required to be obtained or made by Buyer in connection with the
execution, delivery or performance of this Agreement.
6.3 REPRESENTATIONS TRUE ON CLOSING DATE. To the Buyer's knowledge, the
representations and warranties of Buyer set forth in this Agreement are true and
correct on the date hereof, and will be true and correct on the Closing Date as
though such representations and warranties were made as of the Closing Date.
6.4 NON-DISTRIBUTIVE INTENT. The shares of PVS Stock being purchased by
the Company pursuant to this Agreement are not being acquired by the Company
with a view to the public distribution of them.
6.5 NON CONTRAVENTION. To the Company's knowledge neither the execution
and delivery of this Agreement, nor the performance of this Agreement will
contravene or result in a material violation of any of the provisions of any
other agreement or obligation of the Company.
7. CONDITIONS TO CLOSING.
7.1 CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE. Buyer's
obligation to close the stock purchase as contemplated in this Agreement is
conditioned upon the occurrence or waiver by Buyer of the following:
(a) PVS shall have delivered to the Company all certificates
evidencing the PVS Stock and ownership of 100% of the capital stock of
PVS.
(b) All representations and warranties of PVS, KS and LS made
in this Agreement or in any exhibit or schedule hereto delivered by
PVS, KS and LS must be true and correct as of the Closing Date with the
same force and effect as if made on and as of that date.
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(c) PVS must have performed and complied with all agreements,
covenants and conditions required by this Agreement to be performed or
complied with by PVS prior to or at the Closing Date.
(d) Seller shall change the corporate tax status from
Subchapter S to that of a "C" corporation prior to Closing.
(e) PVS to provide Buyer the PVS audited financials for 2006
and 2007 and audited financial statements for 2008 through April 30,
2008 prior to Closing.
(f). PVS covenants to extinguish all long term loans and pay
off all debt prior to the Closing with the exception of the accounts
payable specifically made up of PVS's two credit cards (total of
$120,000) and the amount payable to IntuoSoft, Inc. ($56,000) to an
aggregate maximum of $176,000 which is directly related to the revision
of the Inspectvue(TM) Residential and Commercial application. If the
Buyer waives this condition and closes, it will have its right of
offset in Section 1.2(e) of this Agreement. Any waiver notwithstanding,
ESP agrees to indemnify and hold PVS, its officers, directors,
shareholders, agents and representatives harmless from the credit card
obligations of PVS identified on Attachment A_ hereto. The agreement to
indemnify and hold harmless includes all claims which may be brought by
the designated credit card companies and includes attorneys fees and
costs and all claims, liability, losses, or damages which Sellers may
suffer as a result of any and all claims, demands, costs, attorneys
fees, and/or judgments against them arising out of any violation of
this provision of this Agreement taken by said credit card companies.
This paragraph shall cover the period beginning upon the date of the
execution of this agreement and continue through and including the last
date upon which any statute of limitations effecting Sellers' right(s)
to pursue damages of any kind against Buyer shall have ceased to exist.
Section 9.3 shall govern the Procedure for Indemnification Claims under
this paragraph.
g. PVS to identify and write off all uncollectible receivables
on or before March 31, 2008.
7.2 CONDITIONS PRECEDENT TO PVS' OBLIGATION TO CLOSE. PVS' obligation
to close the stock purchase as contemplated in this Agreement is conditioned
upon the occurrence or waiver by PVS of the following:
(a) All representations and warranties of Buyer made in this
Agreement or in any exhibit hereto delivered by Buyer must be true and
correct on and as of the Closing Date with the same force and effect as
if made on and as of that date.
(b) Buyer must have performed and complied with all agreements
and conditions required by this Agreement to be performed or complied
with by Buyer prior to or at the Closing Date.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made by each of the parties hereto
will survive the Closing for a period of three years after the Closing Date.
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9. INDEMNIFICATION.
9.1 INDEMNIFICATION BY PVS, KS AND LS. PVS, KS and LS agree to
indemnify, defend and hold harmless Buyer and its affiliates against any and all
claims, demands, losses, costs, expenses, obligations, liabilities and damages,
including interest, penalties and attorney's fees and costs, incurred by Buyer
or any of its affiliates arising, resulting from, or relating to any and all
liabilities of PVS accrued prior to the Closing or relating to the PVS Stock,
any misrepresentation of a material fact or omission to disclose a material fact
made by PVS, KS or LS in this Agreement, in any exhibits to this Agreement or in
any other document furnished or to be furnished by PVS, KS or LS under this
Agreement, or any breach of, or failure by PVS, KS or LS to perform, any of
their representations, warranties, covenants or agreements in this Agreement or
in any exhibit or other document furnished or to be furnished by PVS, KS or LS
under this Agreement.
9.2 INDEMNIFICATION BY BUYER. Buyer agrees to indemnify, defend and
hold harmless PVS, KS and LS against any and all claims, demands, losses, costs,
expenses, obligations, liabilities and damages, including interest, penalties
and attorneys' fees and costs incurred by PVS arising, resulting from or
relating to any breach of, or failure by Buyer to perform, any of its
representations, warranties, covenants or agreements in this Agreement or in any
exhibit or other document furnished or to be furnished by Buyer under this
Agreement.
9.3 PROCEDURE FOR INDEMNIFICATION CLAIMS.
(a) Whenever any parties become aware that a claim (an
"Underlying Claim") has arisen entitling them to seek indemnification
under this Section 7 of the Agreement, such parties (the "Indemnified
Parties") shall promptly send a notice ("Notice") to the parties liable
for such indemnification (the "Indemnifying Parties") of the right to
indemnification (the "Indemnity Claim"); provided, however, that the
failure to so notify the Indemnifying Parties will relieve the
Indemnifying Parties from liability under this Agreement with respect
to such Indemnity Claim only if, and only to the extent that, such
failure to notify the Indemnifying Parties results in the forfeiture by
the Indemnifying Parties of rights and defenses otherwise available to
the Indemnifying Parties with respect to the Underlying Claim. Any
Notice pursuant to this Section 7.3(a) shall set forth in reasonable
detail, to the extent then available, the basis for such Indemnity
Claim and an estimate of the amount of damages arising therefrom.
(b) If an Indemnity Claim does NOT result from or arise in
connection with any Underlying Claim or legal proceedings by a third
party, the Indemnifying Parties will have thirty (30) calendar days
following receipt of the Notice to issue a written response to the
Indemnified Parties, indicating the Indemnifying Parties' intention to
either (i) contest the Indemnity Claim or (ii) accept the Indemnity
Claim as valid. The Indemnifying Parties' failure to provide such a
written response within such thirty (30) day period shall be deemed to
be an acceptance of the Indemnity Claim as valid. In the event that an
Indemnity Claim is accepted as valid, the Indemnifying Parties shall,
within fifteen (15) Business Days thereafter, pay the damages incurred
by the Indemnified Parties in respect of the Underlying Claim in cash
by wire transfer of immediately available funds to the account or
accounts specified by the Indemnified Parties. To the extent
appropriate, payments for indemnifiable damages made pursuant to
Section 7 of the Agreement will be treated as adjustments to the
Purchase Price.
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(c) In the event an Indemnity Claim results from or arises in
connection with any Underlying Claim or legal proceedings by a third
party, the Indemnifying Parties shall have fifteen (15) calendar days
following receipt of the Notice to send a Notice to the Indemnified
Parties of their election to, at their sole cost and expense, assume
the defense of any such Underlying Claim or legal proceeding; provided
that such Notice of election shall contain a confirmation by the
Indemnifying Parties of their obligation to hold harmless the
Indemnified Parties with respect to damages arising from such
Underlying Claim. The failure by the Indemnifying Parties to elect to
assume the defense of any such Underlying Claim within such fifteen
(15) day period shall entitle the Indemnified Parties to undertake
control of the defense of the Underlying Claim on behalf of and for the
account and risk of the Indemnifying Parties in such manner as the
Indemnified Parties may deem appropriate, including, but not limited
to, settling the Underlying Claim. However, the parties controlling the
defense of the Underlying Claim shall not settle or compromise such
Underlying Claim without the prior written consent of the other
parties, which consent shall not be unreasonably withheld or delayed.
The non-controlling parties shall be entitled to participate in (but
not control) the defense of any such action, with their own counsel and
at their own expense.
(d) The Indemnifying Parties and the Indemnified Parties will
cooperate reasonably, fully and in good faith with each other, at the
sole expense of the Indemnifying Parties, in connection with the
defense, compromise or settlement of any Underlying Claim including,
without limitation, by making available to the other parties all
pertinent information and witnesses within their reasonable control.
10. INJUNCTIVE RELIEF.
10.1 DAMAGES INADEQUATE. Each party acknowledges that it would be
impossible to measure in money the damages to the other party if there is a
failure to comply with any covenants and provisions of this Agreement, and
agrees that in the event of any breach of any covenant or provision, the other
party to this Agreement will not have an adequate remedy at law.
10.2 INJUNCTIVE RELIEF. It is therefore agreed that the other party to
this Agreement who is entitled to the benefit of the covenants and provisions of
this Agreement which have been breached, in addition to any other rights or
remedies which they may have, will be entitled to immediate injunctive relief to
enforce such covenants and provisions, and that in the event that any such
action or proceeding is brought in equity to enforce them, the defaulting or
breaching party will not urge a defense that there is an adequate remedy at law.
11. FURTHER ASSURANCES.
Following the Closing, PVS shall furnish to Buyer such instruments and
other documents as Buyer may reasonably request for the purpose of carrying out
or evidencing the transactions contemplated hereby.
12. FEES AND EXPENSES.
Each party hereto shall pay all fees, costs and expenses that it incurs
in connection with the negotiation and preparation of this Agreement and in
carrying out the transactions contemplated hereby (including, without
limitation, all fees and expenses of its counsel and accountant).
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13. WAIVERS.
If any party at any time waives any rights hereunder resulting from any
breach by the other party of any of the provisions of this Agreement, such
waiver is not to be construed as a continuing waiver of other breaches of the
same or other provisions of this Agreement. Resort to any remedies referred to
herein will not be construed as a waiver of any other rights and remedies to
which such party is entitled under this Agreement or otherwise.
14. SUCCESSORS AND ASSIGNS.
Each covenant and representation of this Agreement will inure to the
benefit of and be binding upon each of the parties, their personal
representatives, assigns and other successors in interest.
15. ENTIRE AND SOLE AGREEMENT.
This Agreement constitutes the entire agreement between the parties and
supersedes all other agreements, representations, warranties, statements,
promises and undertakings, whether oral or written, with respect to the subject
matter of this Agreement. This Agreement may be modified or amended only by a
written agreement signed by the parties against whom the amendment is sought to
be enforced. The parties acknowledge that as of the date of the execution of
this Agreement, that any and all other agreements either written or verbal will
be terminated and be of no further force or effect.
16. GOVERNING LAW.
This Agreement will be governed by the laws of California without
giving effect to applicable conflict of laws provisions. With respect to any
litigation arising out of or relating to this Agreement, each party agrees that
it will be filed in and heard by the state or federal courts with jurisdiction
to hear such suits located in Los Angeles County, California.
17. COUNTERPARTS.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts will be deemed to be an original, and
such counterparts will constitute but one and the same instrument.
18. ASSIGNMENT.
Except in the case of an affiliate of the Buyer, this Agreement may not
be assignable by any party without prior written consent of the other parties.
19. REMEDIES.
Except as otherwise expressly provided herein, none of the remedies set
forth in this Agreement are intended to be exclusive, and each party will have
all other remedies now or hereafter existing at law, in equity, by statute or
otherwise. The election of any one or more remedies will not constitute a waiver
of the right to pursue other available remedies.
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20. SECTION HEADINGS.
The section headings in this Agreement are included for convenience
only, are not a part of this Agreement and will not be used in construing it.
21. SEVERABILITY.
In the event that any provision or any part of this Agreement is held
to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability will not affect the validity or enforceability of any other
provision or part of this Agreement.
22. NOTICES.
Each notice or other communication hereunder must be in writing and
will be deemed to have been duly given on the earlier of (i) the date on which
such notice or other communication is actually received by the intended
recipient thereof, or (ii) the date five (5) days after the date such notice or
other communication is mailed by registered or certified mail (postage prepaid)
to the intended recipient at the following address (or at such other address as
the intended recipient will have specified in a written notice given to the
other parties hereto):
IF TO PVS, LS OR KS:
Xxxxxx Valley Software, Inc.
00000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx Xxxxxxx
00000 Xxxxxxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Xxxxx Xxxxx
00000 Xxxxxxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
IF TO BUYER:
Environmental Service Professionals, Inc.
0000 Xxxxxxxx Xxxxxx Xxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xx Xxxxxx, Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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23. PUBLICITY.
Except as may be required in order for a party to comply with
applicable laws, rules, or regulations or to enable a party to comply with this
Agreement, or necessary for the Buyer to prepare and disseminate any private or
public placements of its securities or to communicate with its shareholders, no
press release, notice to any third party or other publicity concerning the
transactions contemplated by this Agreement will be issued, given or otherwise
disseminated without the prior approval of each of the parties hereto; provided,
however, that such approval will not be unreasonably withheld.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date
first above written.
PVS: XXXXXX VALLEY SOFTWARE, INC.,
a California corporation
By:/s/Xxxxx Xxxxx
-----------------------------------------------
Xxxxx Xxxxx, Director
By:/s/Xxxxx Xxxxxxx
-----------------------------------------------
Xxxxx Xxxxxxx, Director
KS: /s/Xxxxx Xxxxx
--------------------------------------------------
Xxxxx Xxxxx, Individually
LS: /s/Xxxxx Xxxxxxx
--------------------------------------------------
Xxxxx Xxxxxxx, Individually
COMPANY/BUYER: ENVIRONMENTAL SERVICE PROFESSIONALS, INC.,
a Nevada corporation
By:/s/Xxxxxx Xxxxxx
------------------------------------------------
Xxxxxx Xxxxxx, Chief Executive Officer
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