EXHIBIT 10.13
IRISH/EMISSIONS
PURCHASE AGREEMENT
THIS IS AN PURCHASE AGREEMENT by and between Irish Investments, LLC, a
_________ limited liability company ("Irish"), and eMissions Testing, Inc, a
Georgia corporation ("eMissions"), dated as of September 15, 2000, and by which
Irish and eMissions, in consideration of the agreements set forth below (the
mutuality, adequacy and sufficiency of which are hereby acknowledged), hereby
agree as follows:
1. GENERALLY AS TO PURCHASE & SALE.
(a) PURCHASE AND SALE OF PROMISSORY NOTE. In the event the
Promissory Note (as defined below) has not been paid in full by the Closing Date
(as defined in Section 2), eMissions will sell to Irish, and Irish will purchase
from eMissions that certain promissory note made by Beachside Commons 1, LLC in
favor of eMissions in principal amount of $94,883.35 due August 2, 2000 (the
"Promissory Note").
(b) PURCHASE PRICE. The Purchase Price is the aggregate cash
proceeds in connection with the sale of the first 100,000 shares of eMissions
common stock, no par value per share ("eMissions Common Stock"), owned by Irish
(the "Irish Shares"), which sale shall be made in accordance with the provisions
of this Agreement.
2. CLOSING. At the Closing (which will consist of the deliveries set forth
below, none of which will be deemed to have been delivered unless and until all
of them have been delivered, and which will occur on the 45th day following the
date on which the registration statement filed by eMissions (the "Registration
Statement") relating to the resale of the Irish Shares and other outstanding
shares of eMissions Common Stock is declared effective by the Securities and
Exchange Commission (the "Closing Date"), or as the parties will otherwise
agree) the following will occur:
(a) PURCHASE PRICE. Irish will cause to be delivered to eMissions
the Purchase Price by wire transfer of immediately available funds.
(b) DELIVERY OF NOTE. eMissions will deliver the Promissory Note to
Irish.
The obligations of each party to take the foregoing actions are conditioned
upon: (i) the continuing correctness in all material respects of the
representations and warranties made by the other party in this Agreement and
(ii) the performance by the other party of all of its covenants and agreements
in this Agreement.
3. REPRESENTATIONS AND WARRANTIES.
(a) BY EMISSIONS. eMissions represents and warrants to Irish on the
date of this Agreement and again on and as of the date of the Closing that:
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(v) POWER AND AUTHORITY TO SELL: eMissions has the corporate
power and authority to execute, deliver and other wise perform this Agreement
and the agreements, instruments and documents to be executed and delivered by it
pursuant to this Agreement.
(vi) DUE AUTHORIZATION AND EXECUTION: This Agreement has been,
and each other agreement, instrument and document to be executed and delivered
by eMissions pursuant to this Agreement will be, duly executed and delivered by
eMissions and each constitutes the legal, valid and binding obligation of
eMissions, enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency and other laws and equitable
principles affecting creditors' rights generally and the discretion of the
courts in granting equitable remedies.
(viii) EXECUTION, DELIVERY AND PERFORMANCE PERMITTED WITHOUT
VIOLATION: The execution, delivery and performance of this Agreement is, and of
the agreements, instruments and documents to be executed and delivered by
eMissions pursuant to this Agreement will be, in compliance with, and is not
(and will not be), assuming the giving of notice or the passage of time or both,
in violation of (A) eMissions' articles of incorporation or bylaws, (B) any
applicable law to which eMissions or any of its assets is subject or bound, or
(C) any contract, commitment, order, ruling or proceeding to which eMissions or
any of its assets is a party, subject or bound.
(iv) OWNERSHIP OF PROMISSORY NOTE: eMissions owns all right,
title and interest in and to the Promissory Note free and clear of all liens,
encumbrances or other adverse interests.
(b) BY IRISH. Irish hereby represents and warrants to eMissions on
the date of this Agreement and again on and as of the date of the Closing:
(i) POWER AND AUTHORITY. Irish has the power and authority to
execute, deliver and perform this Agreement and the agreements, instruments and
documents to be executed and delivered by it pursuant to this Agreement.
(ii) AUTHORIZATION AND EXECUTION. This Agreement has been, and
each other agreement, instrument and document to be executed and delivered by
Irish pursuant to this Agreement will be, duly executed and delivered by Irish,
and each constitutes Irish's legal, valid and binding obligation, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency and other laws and equitable principles affecting
creditors' rights generally and the discretion of the courts in granting
equitable remedies.
(iii) OWNERSHIP OF SHARES. Irish owns all right, title and
interest in and to the Irish Shares free and clear of any liens, encumbrances,
adverse rights and claims of any kind whatsoever.
(iv) POWER AND AUTHORITY TO SELL. Irish has the power and
authority to sell the Irish Shares and to deliver the proceeds to eMissions
pursuant to this Agreement free and clear as provided in clause (iii) above and
to execute, deliver and otherwise perform this
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Agreement and the agreements, instruments and documents to be executed and
delivered by it pursuant to this Agreement.
4. COVENANTS & AGREEMENTS.
(a) SALE OF IRISH SHARES. Irish hereby covenants and agrees to sell
the Irish Shares pursuant to the Registration Statement prior to the Closing
Date and to deliver written instructions to each broker involved in the sale of
the Irish Shares providing that such broker shall hold the proceeds of the sale
of any Irish Shares in a brokerage account until the Closing Date and deliver
such proceeds to eMissions at the direction of Irish on the Closing Date by wire
transfer. Notwithstanding the foregoing, the amount of the proceeds from the
sale of the Irish Shares shall not be less than the outstanding principal amount
plus all accrued interest and fees due and payable on the Promissory Note as of
the Closing Date.
(b) EXPENSES. Each party to this Agreement will pay its own expenses
and costs incurred in connection with the negotiation and consummation of this
Agreement and the transactions contemplated by this Agreement. Notwithstanding
the foregoing, Irish will pay all costs and fees in connection with the sale of
the Irish Shares and the delivery of the proceeds as the Purchase Price pursuant
to this Agreement.
(c) PERFORMANCE OF OBLIGATIONS; MAINTENANCE OF REPRESENTATIONS &
WARRANTIES. The parties will in good faith undertake: (i) to perform their
covenants and agreements, and satisfy all conditions, in this Agreement; (ii) to
cause their representations and warranties to remain true and correct; and (iii)
to cause the transactions contemplated in this Agreement to be carried out
promptly in accordance with the terms of this Agreement
(d) FAILURE TO PERFORM BY IRISH. In the event the Promissory Note
has not been repaid on the Closing Date and Irish fails to deliver the Purchase
Price on the Closing Date, Irish hereby agrees to deliver all of the shares of
eMissions Common Stock owned by Irish to eMissions on the Closing Date and to
forfeit all right, title and interest in such shares in favor of eMissions.
(e) COLLATERAL FOR PROMISSORY NOTE. Upon the execution this
Agreement, Beachside Commons 1, LLC ("Beachside") shall grant to eMissions a
security interest in certain of the real property and improvements owned by
Beachside located at 2900 Atlantic Avenue, Fernandina Beach, Florida 32054 and
to execute all necessary documents and agreements to validly create and perfect
such security interest.
5. MISCELLANEOUS.
(a) GOOD FAITH EFFORTS; FURTHER ASSURANCES; COOPERATION. The parties
will in good faith undertake to perform their obligations in this Agreement, to
satisfy all conditions and to cause the transactions contemplated in this
Agreement to be carried out promptly in accordance with the terms of this
Agreement. Upon the execution of this Agreement and thereafter, each party will
do such things as may be reasonably requested by the other party to this
Agreement in order more effectively to consummate or to document the
transactions
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contemplated by this Agreement. The parties will cooperate with each other and
their respective counsel, accountants or designees in connection with any steps
required to be taken as part of their respective rights and obligations under
this Agreement.
(b) NOTICES. Each notice, communication and delivery under this
Agreement: (i) will be made in writing signed by the party making the same; (ii)
will specify the Section pursuant to which it is given; (iii) will be given
either in person or by a nationally recognized next business day delivery
service for next day delivery; and (iv) if not given in person, will be given to
a party at the address set forth below such party's signature (or at such other
address as a party may furnish to the other parties pursuant to this
subsection). If notice is given pursuant to this subsection of a permitted
successor or assign of a party, then notice will also thereafter be given as set
forth above to such successor or assign of such party.
(c) ASSIGNMENT. No assignment or transfer by a party of its rights
and obligations under this Agreement will be made by merger or other operation
of law or otherwise except with the prior written consent of the other party
(which may not be unreasonably withheld or delayed).
(d) RULES OF CONSTRUCTION. For purposes of this Agreement: (i)
including and any other words or phrases of inclusion will not be construed as
terms of limitation, so that references to included matters will be regarded as
non-exclusive, non-characterizing illustrations; (ii) when "Section,"
"Subsection," or "Exhibit" is capitalized in this Agreement, such refers to such
item of or to this Agreement; (iii) titles and captions of or in this Agreement
are inserted only as a matter of convenience and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any of its provisions;
(iv) whenever the context so requires, the singular includes the plural and the
plural includes the singular, and the gender of any pronoun includes the other
genders; (v) each exhibit and schedule referred to in this Agreement and each
attachment to any of them or this Agreement is hereby incorporated by reference
into this Agreement and is made a part of this Agreement as if set out in full
in the first place that reference is made to it; and (vi) acknowledging that
parties have participated jointly in the negotiation and drafting of this
Agreement, if an ambiguity or question of intent or interpretation arises as to
any aspect of this Agreement, then it will be construed as if drafted jointly by
the parties and no presumption or burden of proof will arise favoring or
disfavoring any party by virtue of the authorship of any provision of this
Agreement.
(e) SEVERABILITY. Any determination by any court of competent
jurisdiction of the invalidity of any provision of this Agreement that is not
essential for accomplishing its purposes will not affect the validity of any
other provision of this Agreement, which will remain in full force and effect
and which will be construed as to be valid under applicable law.
(f) CONTROLLING LAW; INTEGRATION; AMENDMENT; WAIVER; REMEDIES
CUMULATIVE. This Agreement is governed by, and will be construed and enforced in
accordance with, the laws of the State of Georgia except the laws of that state
that would render such choice of laws ineffective. This Agreement and the other
agreements contemplated by this Agreement supersede all prior negotiations,
agreements and understandings between the parties as to its subject matter,
constitute the entire agreement between the parties as to its subject matter and
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may not be altered or amended except in writing signed by the parties. The
failure of any party at any time or times to require performance of any
provision of this Agreement will in no manner affect the right to enforce the
same; and no waiver by any party of any provision (or of a breach of any
provision) of this Agreement, whether by conduct or otherwise, in any one of
more instances will be deemed or construed either as a further or continuing
waiver of any such provision or breach or as a waiver of any other provision (or
of a breach of any other provision) of this Agreement.
(g) COPIES. This Agreement may be executed in two or more copies,
each of which will be deemed an original, and it will not be necessary in making
proof of this Agreement or its terms to produce or account for more than one of
such copies.
DULY EXECUTED and delivered by Irish and eMissions as of September 15,
2000.
eMissions: eMissions Testing, Inc
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By: /s/ William S. Estroff
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William S. Estroff President
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Irish: Irish Investments, LLC
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By: /s/ Joseph Powell
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Name: Joseph Powell
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Title: Manager
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Accepted and Agreed to by: BEACHSIDE COMMON1, LLC
By: /s/ Gerald F. Sullivan
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Name: Gerald F. Sullivan
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Title: President
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(for purposes of Section 4(e) of this
Agreement)
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