EXHIBIT 10.2
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT, effective as of May 9, 2003 (the
"Agreement"), is by and among the Sellers named in Annex I hereto (hereafter the
"Sellers") and NOXSO CORPORATION, a Virginia corporation, whose address is 1065
South 500 West, Bountiful, UT 84010 (hereafter the "Purchaser"). The parties
agree as follows:
DEFINITIONS
1.1 Definitions. Certain capitalized terms are used in this Agreement
as specifically defined in this Section 1.1 as follows:
"Affiliate" means any Person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, the Company; and shall include (a) any Person who is an officer,
director or beneficial holder of at least 10% of the outstanding capital stock
of the Company (or other specified Person), (b) any Person of which the Company
(or other specified Person) or any officer or director of the Company (or other
specified Person) shall, directly or indirectly, either beneficially own at
least 10% of the outstanding equity securities or constitute at least a 10%
participant, and (c) in the case of a specified Person who is an individual,
Members of the Immediate Family of such Person.
"Agreement" is defined in the Preamble.
"Closing" is defined in Section 2.3.
"Closing Date" is defined in Section 2.3.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act, the Exchange Act or
both.
"Company" means Advanced Construction & Manufacturing Technologies De
Mexico SA De CV or ACMT De Mexico domiciled in Mexico City, in the Country of
Mexico.
"Contractual Obligation" means, with respect to any Person, any
contracts, agreements, deeds, mortgages, leases, licenses, other instruments,
commitments, undertakings, arrangements or understandings, written or oral, or
other documents, including any document or instrument evidencing indebtedness,
to which any such Person is a party or otherwise subject to or bound by or to
which any asset of any such Person is subject.
"Financial Statements" is defined in Section 3.5.
"Legal Requirement" means any federal, state or local law, statute,
standard, ordinance, code, order, rule, regulation, resolution, promulgation or
any final order, judgment or decree of any court, arbitrator, tribunal or
governmental authority, or any license, franchise, permit or similar right
granted under any of the foregoing.
"Material Adverse Effect" means a material adverse effect upon the
business, assets, financial condition, income or prospects of the Company,
including, without limitation, the termination or modification in a manner
adverse to the Company of any license or other agreement to which the Company is
a party.
"Person" means an individual, partnership, corporation, company,
association, trust, joint venture, unincorporated organization and any
governmental department or agency or political subdivision.
"Promissory Notes" is defined in Section 2.1.
"Purchaser" shall have the meaning set forth in the preamble.
"Securities" means both the legally stipulated minimum fixed capital
stock and the discretionary variable capital stock of the Company, together with
any bond, debenture, certificate of interest, participation right, investment
contract, option, warrant or any other evidence of ownership, voting rights and
participation right of the Company.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be from time to time amended and in effect.
"Sellers" shall have the meaning set forth in the preamble and Annex I.
"Sellers' Ownership" is defined in Section 2.1.
"Shares" is defined in Section 2.1.
"Welfare Plan" means each welfare plan (as defined in section 3(l) of
ERISA) established or maintained, or to which any contributions are or were
made, by the Company or any Person which is a member of the same ERISA Group
with any of the foregoing.
SALE AND PURCHASE OF SECURITIES
2.1 Agreement to Sell and Purchase. Subject to the terms and conditions
hereof and in reliance on the representations, warranties and agreements of the
Purchaser contained or referred to herein, the Sellers severally agree to sell
to the Purchaser and, subject to the terms and conditions hereof and in reliance
on the representations, warranties and agreements of the Sellers contained or
referred to herein, the Purchaser agrees to purchase at the Closing, all of the
Securities of the Company, which purchase includes, but is not limited to, all
of "the minimum fixed capital" of the Company and all of "the variable part of
the capital" of the Company (the "Sellers' Ownership") for the aggregate
purchase price of ONE HUNDRED FIFTY THOUSAND DOLLARS US ($150,000.00 US) and the
issuance of THREE HUNDRED FIFTY THOUSAND SHARES (350,000) of restricted common
stock of the Purchaser (the "Shares"), in the amounts and to the individual
Sellers as set forth in Annex I hereto. The cash portion of the purchase shall
be initially paid in the form of corporate Promissory Notes (the "Promissory
Notes") in the principal amounts and to the individual Sellers as set forth in
Annex I hereto, which Promissory Notes shall bear interest at the rate of ten
percent (10%) per annum, shall be due and payable on the earlier of the one year
anniversary of the promissory note or on demand and shall otherwise be in a form
that is agreed to by the parties. The Promissory Notes referenced above may be
prepaid at any time without penalty.
2.2 Payment of Purchase Price. Purchaser shall pay the purchase price
to Sellers in full on the Closing Date.
2.3 Closing. The closing of the purchase and sale of the Sellers'
Ownership (the "Closing") shall take place in Salt Lake City, Utah at the
offices of Blackburn & Stoll, LC. The Closing shall take place on a date no
later than May __, 2003 (the "Closing Date"). At Closing, in exchange for the
Sellers' Ownership, the Purchaser will deliver to the individual Sellers the
Promissory Notes and interim documentation evidencing the written instructions
from Purchaser to Purchaser's stock transfer agent for the issuance of the
number of Shares to each Seller as set forth on Annex I.
2.4 Conditions to Closing for the Purchaser. The Purchaser's
obligations to purchase the Sellers' Ownership pursuant to this Agreement on the
Closing Date are subject to the satisfaction, on or prior to the Closing Date,
of the following conditions:
2.4.1 Representations and Warranties Correct. The
representations and warranties made by the Sellers herein shall have been true
and correct when made and shall be true and correct on the Closing Date, except
for representations and warranties that are made as of a specific date which
shall only be required to be true and correct as of such date.
2.4.2 Performance. All covenants, agreements and conditions
contained in this Agreement to be performed or complied with by the Sellers on
or prior to the Closing shall have been performed or complied with and the
Sellers shall not be in default in the performance of or compliance with any
provisions of this Agreement.
2.4.3 Consents. All consents and approvals to the transactions
contemplated by this Agreement required to be obtained by the Sellers from any
third party shall have been obtained by the Sellers.
2.4.4 Legality. All authorizations, approvals or permits of
any governmental authority or regulatory body that are required in connection
with the lawful transfer and sale of the Sellers' Ownership pursuant to this
Agreement shall have been duly obtained and shall be in full force and effect.
2.5 Conditions to Closing for the Sellers. The Sellers' obligation to
sell the Sellers' Ownership pursuant to this Agreement on the Closing Date is
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions:
2.5.1 Representations and Warranties Correct. The
representations and warranties made by the Purchaser herein shall have been true
and correct when made and shall be true and correct on and as of the Closing
Date with the same force and effect as though made on and as of the Closing
Date.
2.5.2 Performance. All covenants, agreements and conditions
contained in this Agreement to be performed or complied with by the Purchaser on
or prior to the Closing shall have been performed or complied with and the
Purchaser shall not be in default in the performance of or compliance with any
provisions of this Agreement.
2.5.3 Legality. All authorizations, approvals or permits of
any governmental authority or regulatory body that are required in connection
with the lawful sale of the Sellers' Ownership pursuant to this Agreement shall
have been duly obtained and shall be in full force and effect.
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the Sellers individually and Sellers severally represent and
warrant to the Purchaser as follows:
3.1 Organization. The Company is a duly organized and validly existing
corporation in good standing under the laws of Mexico. The Company is duly
qualified to do business and is in good standing in Mexico City its principal
domicile and may establish agencies or branches in each jurisdiction in which it
anticipates to do business, except where the failure to be so qualified would
not have a Material Adverse Effect.
3.2 Authorization. All approvals and action on the part of the Sellers,
if any, necessary for the due authorization, execution and delivery of this
Agreement and the consummation of the transactions contemplated herein, and for
the due authorization to sell, transfer and convey the Sellers' Ownership to the
Purchaser has been or will be taken as of the Closing Date. This Agreement is a
legal, valid and binding agreement of the Sellers, enforceable in accordance
with its terms. The execution, delivery and performance by the Sellers of this
Agreement and the sale of the Sellers' Ownership will not result in any
violation of or be in conflict with, or result in a breach of or constitute a
default under, any term or provision of any Legal Requirement to which the
Sellers is subject.
3.3 Consents. No consent, approval, qualification, order or
authorization of, or filing with any governmental authority is required in
connection with the Sellers valid execution, delivery or performance of the this
Agreement, or the offer or sale of the Sellers' Ownership by the Sellers or the
consummation of any other transaction pursuant to this Agreement on the part of
the Sellers.
3.4 Capitalization. The authorized capital stock of the Company as of
the date of the Agreement is made up solely of the Securities and all of the
Securities are being conveyed to Purchaser as part of the Sellers' Securities.
The Company has no outstanding (i) rights (either preemptive or otherwise) or
options to subscribe for or purchase, or any warrants or other agreements
providing for or requiring the issuance of, any capital stock or any securities
convertible into or exchangeable for its securities, (ii) obligation to
repurchase or otherwise acquire or retire any of its capital stock, any
securities convertible into or exchangeable for its capital stock or any rights,
options or warrants with respect thereto, (iii) rights that require it to
register the offering of any of its securities under the Securities Act of 1933,
as amended, or (iv) any restrictions on voting any of its securities.
3.5 Financial Statements. Purchaser has been furnished with complete
and correct copies of the financial and information statements of the Company
(the "Financial Statements"). The Financial Statements fairly and accurately
present the financial condition of the Company at the date thereof and the
results of its operations for the period covered thereby. All the books, records
and accounts of the Company are accurate and complete, are in accordance with
good business practice and all laws, regulations and rules applicable to the
Company and the conduct of its business and accurately present and reflect all
of the transactions described therein.
3.6 Outstanding Debt: Absence of Liabilities. The Company does not have
any outstanding indebtedness for borrowed money except as reflected in the
Financial Statements and is not, except as reflected, a guarantor or otherwise
contingently liable on such indebtedness of any Person. The Company does not
have any liabilities or obligations, contingent or otherwise, which are not
reflected or provided for in the Financial Statements.
3.7 Contractual Obligations. Sellers have provided Purchaser with a
correct and complete list and copies of all Contractual Obligations of the
Company.
3.8 Conformity With Legal Requirements. The operations of the Company
as now conducted are not in violation of, nor is the Company in default under,
any Legal Requirements presently in effect or the Company's Charter or Bylaws or
similar documents. The Company has all franchises, licenses, permits or other
authority presently necessary for the conduct of its businesses as now
conducted.
3.9 Benefit Plans. The Company does not have any obligations to any
governmental agencies under any Welfare Plan.
3.10 Employees. The Company has no employees or any liability related
to any contemplated employees, or as an employer.
3.11 Operations. The Company has not initiated operations and does not
have any outstanding liabilities to any governmental agency or authority,
consultant or service other than disclosed in the Financial Statements.
3.12 Taxes. The Company has filed all applicable tax and information
returns, which are required to be filed by it, and such returns are true and
correct. The Company has paid all taxes, interest and penalties, if any,
reflected in such tax returns or otherwise due and payable by it. The Company
has no knowledge of any material additional assessments or any basis therefor.
The Company has withheld or collected from each payment made to its employees
the amount of all taxes required to be withheld or collected therefrom and has
paid over such amounts to the appropriate taxing authorities. Any deficiencies
proposed as a result of any governmental audits of such tax returns have been
paid or settled or are being contested in good faith, and there are no present
disputes as to taxes payable by the Company.
3.13 Litigation. No litigation or proceeding before, or investigation
by, any foreign, federal, state or municipal board or other governmental or
administrative agency or any arbitrator is pending or, to the Company's
knowledge, threatened (nor to the Company's knowledge, does any basis exist
therefor) against the Company or, to the Company's knowledge, any officer of the
Company.
3.14 Filings, Broker's Fees. The Sellers' are not obligated to pay any
broker's fee, finder's fee, investment banker's fee or other similar transaction
fee in connection with the transactions contemplated hereby.
3.15 Accredited Investors. The Sellers each, individually, have
sufficient knowledge and experience in evaluating and investing in companies in
terms of the stage of development of the Purchaser so as to be able to evaluate
the risks and merits of its investment in the Shares and are able financially to
bear the risks thereof. No Seller, if an entity, was organized for the purpose
of acquiring the Shares.
3.16 No Distribution. Each Seller is acquiring the Shares at the
Closing, subject to the terms hereof, for investment for its own account and not
with a view to, or for resale in connection with, any distribution thereof, and
that each such Seller has no present intention of selling, granting any
participation in, or otherwise distributing the same; provided, however, that
the disposition of the Shares shall at all times remain in the Sellers' control.
By executing this Agreement, the Sellers further represent and warrant that they
does not have any Contractual Obligations, undertaking, agreement or arrangement
with any person to sell, transfer or grant participations to such person or to
any third person, with respect to any of the Shares.
3.17 Access to Information. Sellers have had an opportunity to discuss
the terms and conditions of the purchase of the Shares and the underlying
business, management and financial affairs of Purchaser with management of
Purchaser and have received (or had made available to them) any financial and
business documents requested by them. Sellers have each had the opportunity to
review Purchaser's last annual report on Form 10-KSB as filed with the
Securities and Exchange Commission and all subsequent filings by Purchaser with
the Securities and Exchange Commission.
3.18 Restricted Securities. Sellers understand and agree that the
Shares are offered and issued pursuant to exemptions from registration under the
Securities Act and that the Shares may not be sold by the Sellers without
registration under applicable securities acts or a proper exemption from such
registration.
3.19 Legend. Sellers also understand and agree that stop transfer
instructions relating to the Shares will be placed in the Purchaser's stock
transfer ledger, and that the certificates evidencing the Shares sold will bear
legends in substantially the following form:
The securities represented by this certificate have not been registered
under the Securities Act of 1933 (the "Act") and are "restricted
securities" as that term is defined in Rule 144 under the Act. The
securities may not be offered for sale, sold or otherwise transferred
except pursuant to an effective registration statement under the Act or
pursuant to an exemption from registration under the Act, the
availability of which is to be established to the satisfaction of the
Company.
3.20 Disclosure. Neither this Agreement, nor any agreement,
certificate, statement or document furnished in writing by or on behalf of the
Sellers to the Purchasers in connection herewith or therewith contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Sellers that:
4.1 Authority. It has full power and authority to enter into this
Agreement, and that this Agreement, when executed and delivered, will constitute
the valid and binding legal obligation of such Purchaser, enforceable against it
in accordance with their terms.
4.2 Accredited Investors. It has sufficient knowledge and experience in
evaluating and investing in companies in terms of the stage of development as
the Company so as to be able to evaluate the risks and merits of its investment
in the Sellers' Ownership and is able financially to bear the risks thereof.
Purchaser represents that it was not organized for the purpose of acquiring the
Sellers' Ownership.
4.3 No Distribution. It is acquiring the Sellers' Ownership at the
Closing, subject to the terms hereof, for investment for its own account and not
with a view to, or for resale in connection with, any distribution thereof, and
that Purchaser has no present intention of selling, granting any participation
in, or otherwise distributing the same; provided, however, that the disposition
of the Sellers' Ownership shall at all times remain in the Purchaser's control.
By executing this Agreement, the Purchaser further represents and warrants that
it does not have any Contractual Obligations, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the Sellers' Ownership.
4.4 Access to Information. It has had an opportunity to discuss the
terms and conditions of the purchase of the Sellers' Ownership and the
underlying business, management and financial affairs with Sellers who are the
Company's management and has received (or had made available to it) any
financial and business documents requested by it.
4.5 Brokers. It has no contract, arrangement or understanding with any
broker, finder or similar agent with respect to the transactions contemplated by
this Agreement.
MISCELLANEOUS
5.1 Indemnification.
5.1.1 All representations, warranties, covenants or agreements
made herein by Sellers shall be deemed to have been material and relied on by
the Purchaser, notwithstanding any investigation made by the Purchaser or on the
Purchaser's behalf, and shall survive the execution and delivery to the
Purchaser hereof and of the Sellers' Ownership.
5.1.2 All representations, warranties, covenants or agreements
made herein by Purchaser shall be deemed to have been material and relied upon
by the Sellers, notwithstanding any investigation made by the Sellers or on the
Sellers' behalf, and shall survive the execution and delivery of this Agreement.
5.1.3 The Sellers shall indemnify and hold Purchaser harmless
from and against any and all actions, causes of action, suits, litigation,
losses, liabilities, damages and expenses (including, but not limited to,
reasonable legal fees and court costs), whether or not resulting from judgments
or arbitration awards, that shall be suffered or incurred by any Purchaser, as
the case may be, resulting from or arising out of any breach of any of the
representations, warranties, covenants or agreements of a Sellers made in this
Agreement.
5.1.4 The Purchaser shall indemnify and hold any Sellers
harmless from and against any and all actions, causes of action, suits,
litigation, losses, liabilities, damages and expenses (including, but not
limited to, reasonable legal fees and court costs), whether or not resulting
from judgments or arbitration awards, that shall be suffered or incurred by any
Sellers, as the case may be, resulting from or arising out of any breach of any
of the representations, warranties, covenants or agreements of the Purchaser
made in this Agreement.
5.1.5 The indemnified party will notify the indemnifying party
in writing within ten days after the receipt by any indemnified party of any
notice of legal process of any suit brought against or claim made against such
indemnified party as to any matters covered by this Section 5.1. The
indemnifying party shall be entitled to participate at its own expense in the
defense of any claim, action, suit or proceeding covered by this Section 5.1,
or, if it so elects, to assume at its expense by counsel satisfactory to the
indemnified parties the defense of any such claim, action, suit or proceeding,
and if the indemnifying party elects to assume such defense, the indemnified
party shall be entitled to participate in the defense of any such claim, action,
suit or proceeding at its expense.
5.2 Survival. The obligations of the parties under this Agreement shall
survive any redemption, repurchase or transfer of any or all of the Sellers'
Ownership and the Shares.
5.3 Termination. This Agreement may be terminated by either the Sellers
or the Purchaser, if (i) the conditions to its obligations under Sections 2.4
and 2.5, as applicable, shall not have been complied with or performed in any
material respect and such noncompliance or nonperformance shall not have been
cured or eliminated (or by its nature cannot be cured or eliminated) by the
other party on or before May 20, 2003 or such later date as agreed to by the
Sellers and Purchaser, or (ii) the Closing shall not have occurred prior to the
close of business on May 20, 2003 or such later date as agreed to by the
parties; unless in the case of either (i) or (ii), such event has been caused by
the breach of this Agreement by the party seeking such termination.
5.4 Notices. Any notice or other communication in connection with this
Agreement or the Sellers' Ownership shall be deemed to be delivered if in
writing addressed as provided below and if either (a) actually delivered at said
address, (b) in the case of a letter, seven business days shall have elapsed
after the same shall have been deposited in the United States mails, postage
prepaid and registered or certified, return receipt requested or (c) transmitted
to any address outside of the United States, by telecopy and confirmed by
overnight or two-day courier. If to the Sellers, to the Sellers' respective
addresses set forth in Annex I or at such other address as the Sellers shall
have specified by notice to the Purchaser. If to the Purchaser, to the
Purchaser's address set forth herein, or at such other address as the Purchaser
shall have specified by notice to the Sellers.
5.5 Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively) only with
the written consent of the parties.
5.6 Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the personal representatives, successors and assigns
of the respective parties hereto. The parties shall not have the right to assign
their rights or obligations hereunder or any interest herein without obtaining
the prior written consent of the other parties hereto. Nothing in this
Agreement, express or implied, is intended to confer upon any other Person any
rights, remedies, obligations or liabilities.
5.7 General. The invalidity or unenforceability of any term or
provision hereof shall not affect the validity or enforceability of any other
term or provision hereof. The headings in this Agreement are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof. This
Agreement constitutes the entire understanding of the parties hereto with
respect to the subject matter hereof and supersedes all present and prior
agreements, whether written or oral. This Agreement is intended to take effect
as a sealed instrument and may be executed in any number of counterparts which
together shall constitute one instrument and shall be governed by and construed
in accordance with the laws (other than the conflict of laws rules) of the State
of Utah, and shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
5.8 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart. One or more counterparts of this
Agreement may be delivered via facsimile and such facsimile counterpart shall
have the same effect as an original counterpart hereof.
The undersigned have executed this Agreement as of the 14th day of May,
2003, to be effective as of the date first above written.
SELLERS: PURCHASER:
SouthWest Management Company NOXSO CORPORATION
/s/ Wynn L. Westmoreland /s/ Richard J. Anderson
- ------------------------------ ------------------------
By: Wynn L. Westmoreland By: Richard J. Anderson
Its: CEO Its: President
GRUPO INDUSTRIAL POTRO S.A. DE C.V.
/s/ Francisco Hernandez Flores
- ---------------------------------
By: Francisco Hernandez Flores
Its: President
ANNEX I TO STOCK
PURCHASE AGREEMENT
Sellers:
Name and Address Ownership Sales Price
SouthWest Management Company 50.0% $75,000 plus 175,000 Shares of NOXSO
887 West Center Street Corporation Common Stock
Orem, UT 84058
Groupo Industrial Potro S.A. De C.V. 50.0% $75,000 plus 175,000 Shares of NOXSO
Attn: Sr. Francisco Hernandez Flores Corporation Common Stock
Calle Huatabampo 64 Bis Piso 3
Colonia Roma Sur
Mexico, D.F.
C.P. 06760