STOCK PURCHASE AGREEMENT
among
PERMA-FIX ENVIRONMENTAL SERVICES, INC.,
CHEMICAL CONSERVATION CORPORATION,
CHEMICAL CONSERVATION OF GEORGIA, INC.,
THE XXXXXX X. XXXXXXXX LIVING TRUST,
THE XXX X. XXXXXXXX LIVING TRUST,
XXXXXX X. XXXXXXXX, an individual
and
XXX X. XXXXXXXX, an individual
May 27, 1999
TABLE OF CONTENTS
Page
ARTICLE
1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.1 "Acquisitions". . . . . . . . . . . . . . . . . . . . .3
1.2 "Affiliate" . . . . . . . . . . . . . . . . . . . . . .3
1.4 "Chem-Con Common Stock" . . . . . . . . . . . . . . . .3
1.5 "Chem-Con Intellectual Property Rights" . . . . . . . .3
1.6 "Chemical Florida Shares" . . . . . . . . . . . . . . .3
1.7 "Chemical Georgia Shares" . . . . . . . . . . . . . . .3
1.8 "Chem-Met " . . . . . . . . . . . . . . . . . . . . . .3
1.9 "Chem-Met Agreement " . . . . . . . . . . . . . . . . .3
1.10 "Chem-Met Acquisition". . . . . . . . . . . . . . . . .4
1.11 "Closing" . . . . . . . . . . . . . . . . . . . . . . .4
1.12 "Closing Date". . . . . . . . . . . . . . . . . . . . .4
1.13 "Code". . . . . . . . . . . . . . . . . . . . . . . . .4
1.14 "Environmental Laws". . . . . . . . . . . . . . . . . .4
1.15 "ERISA" . . . . . . . . . . . . . . . . . . . . . . . .4
1.16 "GAAP". . . . . . . . . . . . . . . . . . . . . . . . .4
1.17 "Governmental Authority". . . . . . . . . . . . . . . .4
1.18 "Laws". . . . . . . . . . . . . . . . . . . . . . . . .4
1.19 "Liens" . . . . . . . . . . . . . . . . . . . . . . . .5
1.20 "Mineral Rights". . . . . . . . . . . . . . . . . . . .5
1.21 "Permitted Encumbrances". . . . . . . . . . . . . . . .5
1.22 "Perma-Fix Common Stock" . . . . . . . . . . . . . . .5
1.23 "Promissory Notes". . . . . . . . . . . . . . . . . . .5
1.25 "Real Property" . . . . . . . . . . . . . . . . . . . .5
1.26 "Returns" . . . . . . . . . . . . . . . . . . . . . . .5
1.27 "Securities Act". . . . . . . . . . . . . . . . . . . .5
1.28 "SEC" . . . . . . . . . . . . . . . . . . . . . . . . .5
1.29 "Shares". . . . . . . . . . . . . . . . . . . . . . . .5
1.30 "Subsidiaries". . . . . . . . . . . . . . . . . . . . .5
1.31 "Taxes" . . . . . . . . . . . . . . . . . . . . . . . .5
ARTICLE 2. . . . . . . . . . . . . . . . . . . . . . . . . . . .6
THE ACQUISITIONS . . . . . . . . . . . . . . . . . . . . . . . .6
2.1 The Acquisitions. . . . . . . . . . . . . . . . . . .6
2.1.1 Acquisitions of Chemical Florida and Chemical
Georgia. . . . . . . . . . . . . . . . . . . . .6
2.2 Closing . . . . . . . . . . . . . . . . . . . . . . . .6
2.3 ALS Trust/TPS Trust Nominee on Perma-Fix's Board of
Directors . . . . . . . . . . . . . . . . . . . . . . .6
2.3.1 ALS Trust/TPS Trust Nominee to Perma-Fix Board
of Directors . . . . . . . . . . . . . . . . . .6
2.3.2 Information Regarding Xxxxxxxx Nominees. . . . .7
ARTICLE 3. . . . . . . . . . . . . . . . . . . . . . . . . . . .7
CONSIDERATION FOR SHARES . . . . . . . . . . . . . . . . . . . .7
3.1 Purchase Price. . . . . . . . . . . . . . . . . . . . .8
3.2 Guarantee Period. . . . . . . . . . . . . . . . . . . .8
3.3 Exchange of Shares for the Purchase Price . . . . . . .9
ARTICLE 4. . . . . . . . . . . . . . . . . . . . . . . . . . . .9
REPRESENTATIONS AND WARRANTIES OF THE ALS TRUST,
THE TPS TRUST, ALS, TPS AND CHEM-CON . . . . . . . . . . . . . .9
4.1 Organization of the Xxxxxxxx Trusts . . . . . . . . . .9
4.2 Organization of Chem-Con. . . . . . . . . . . . . . . 10
4.3 Capital Stock of Chem-Con . . . . . . . . . . . . . . 10
4.4 Ownership Interests in Securities . . . . . . . . . . 10
4.5 Financials. . . . . . . . . . . . . . . . . . . . . . 11
4.5.1 Financial Statements. . . . . . . . . . . . . .11
4.5.2 Liabilities . . . . . . . . . . . . . . . . . .11
4.5.3 Net Worth . . . . . . . . . . . . . . . . . . .11
4.5.4 Transactions Since September 30, 1998 . . . . .11
4.6 Tax and Other Returns and Reports . . . . . . . . . . 12
4.6.1 Tax Returns . . . . . . . . . . . . . . . . . .12
4.6.2 Payment of Taxes. . . . . . . . . . . . . . . .12
4.6.3 Waiver of Statute of Limitations. . . . . . . .12
4.6.4 Tax Deficiencies. . . . . . . . . . . . . . . .12
4.7 Property. . . . . . . . . . . . . . . . . . . . . . . 13
4.7.1 Assets. . . . . . . . . . . . . . . . . . . . .13
4.7.2 Real Property . . . . . . . . . . . . . . . . .13
4.7.3 Leases. . . . . . . . . . . . . . . . . . . . .13
4.7.4 Notice. . . . . . . . . . . . . . . . . . . . .13
4.7.5 Personal Property . . . . . . . . . . . . . . .14
4.7.6 Notice from Insurance Carrier . . . . . . . . .14
4.8 Intellectual Property . . . . . . . . . . . . . . . . 14
4.8.1 Ownership . . . . . . . . . . . . . . . . . . .14
4.8.2 No Breach of License. . . . . . . . . . . . . .15
4.8.3 Year 2000 Issues. . . . . . . . . . . . . . . .15
4.9 Agreements, Contracts and Commitments . . . . . . . . 16
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4.9.1 Contracts . . . . . . . . . . . . . . . . . . .16
4.9.2 Written List. . . . . . . . . . . . . . . . . .17
4.10 No Breach of Statute or Contract; Governmental
Authorizations . . . . . . . . . . . . . . . . . . . .19
4.10.1 No Violation. . . . . . . . . . . . . . . . . .19
4.10.2 Permits and Licenses. . . . . . . . . . . . . .19
4.10.3 Reports . . . . . . . . . . . . . . . . . . . .19
4.10.4 Violation of Law and Contamination of Real
Property. . . . . . . . . . . . . . . . . . . .20
4.10.5 Permits under Environmental Laws. . . . . . . .20
4.10.6 Other Permits . . . . . . . . . . . . . . . . .21
4.11 No Litigation or Adverse Effects. . . . . . . . . . . 21
4.12 Authorization, Execution and Delivery of Agreement. . 21
4.13 Ability to Conduct the Business . . . . . . . . . . . 21
4.14 Disclosure. . . . . . . . . . . . . . . . . . . . . . 22
4.15 Broker's or Finder's Fee. . . . . . . . . . . . . . . 22
4.16 Insurance . . . . . . . . . . . . . . . . . . . . . . 22
4.17 Completeness of Documents -- Chem-Con and CCC . . . . 23
4.18 Completeness of Documents -- Xxxxxxxx Trusts. . . . . 23
4.19 Disposition of Assets . . . . . . . . . . . . . . . . 23
4.20 Obligations to Employees. . . . . . . . . . . . . . . 23
4.21 Condition of Plant, Machinery and Equipment . . . . . 25
4.22 Books of Account. . . . . . . . . . . . . . . . . . . 25
4.23 Stock Redemptions . . . . . . . . . . . . . . . . . . 25
4.24 Minute Books. . . . . . . . . . . . . . . . . . . . . 25
4.25 Indebtedness of Shareholders, etc . . . . . . . . . . 25
4.26 Business Prospects. . . . . . . . . . . . . . . . . . 25
4.27 Bank Accounts; Powers of Attorney . . . . . . . . . . 25
4.28 Sensitive Payments. . . . . . . . . . . . . . . . . . 26
ARTICLE 5. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ADDITIONAL REPRESENTATIONS, WARRANTIES
AND COVENANTS OF THE SULLIVANS AND THE XXXXXXXX TRUSTS . . . . 26
Investment . . . . . . . . . . . . . . . . .. . . . . 26
5.3 Resale of Shares. . . . . . . . . . . . . . . . . . . 27
5.5 Shares to be held Indefinitely. . . . . . . . . . . 27
5.6 Periodic Reports-No Registration. . . . . . . . . . 28
5.7 Public Solicitation. . . . . . . . . . . . . . . . . 28
5.8 SEC Filings. . . . . . . . . . . . . . . . . . . . . 28
5.9 Total Assets of the ALS Trust; Knowledge of
Purchaser's Representatives . . . . . . . . . . . . . 28
5.10 Restrictions on Certain Actions. . . . . . . . . . . 28
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5.10.1 Prohibition Against Acquisition . . . . . . . . . . 28
5.10.2 Prohibition Against Solicitation. . . . . . . . . . 29
5.10.3 Prohibition Against Control . . . . . . . . . . . . 29
5.11 Attendance . . . . . . . . . . . . . . . . . . . . . . . . 29
5.12 Confidential Information; Non-Compete, and Non-
Solicitation . . . . . . . . . . . . . . . . . . . . . . . 29
5.12.1 Confidentiality . . . . . . . . . . . . . . . . . . 30
5.12.2 Covenant Not to Compete . . . . . . . . . . . . . . 30
5.12.3 Agreement Not to Solicit Employees and
Customers . . . . . . . . . . . . . . . . . . . . . 30
5.13 Specific Enforcement . . . . . . . . . . . . . . . . . . . 31
ARTICLE 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
NO SOLICITATION OF TRANSACTIONS . . . . . . . . . . . . . . . . . . 31
6.1 No Solicitation of Transactions. . . . . . . . . . . . . . 31
ARTICLE 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
REPRESENTATIONS AND WARRANTIES OF PERMA-FIX . . . . . . . . . . . . 32
7.1 Organization, etc. . . . . . . . . . . . . . . . . . . . . 32
7.2 Authorization, Execution and Delivery of Agreement . . . . 32
7.3 Capital Stock of Perma-Fix . . . . . . . . . . . . . . . . 32
7.4 SEC Filings. . . . . . . . . . . . . . . . . . . . . . . . 32
7.4.1. . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.4.2 Material Adverse Change . . . . . . . . . . . . . . 33
7.5 Status of Perma-Fix Common Stock . . . . . . . . . . . . . 33
7.6 No Breach of Statute or Contract, Governmental
Authorizations . . . . . . . . . . . . . . . . . . . . . . 33
7.7 No Litigation or Adverse Events. . . . . . . . . . . . . . 34
7.8 Broker's or Finder's Fees. . . . . . . . . . . . . . . . . 34
ARTICLE 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
COVENANTS OF CONDUCT AND TRANSACTIONS
PRIOR TO AND AFTER THE CLOSING. . . . . . . . . . . . . . . . . . . 34
8.1 Investigations; Operation of Business of Chem-Con. . . . . 34
8.1.1 Access to Premises and Books. . . . . . . . . . . . 34
8.1.2 Business Organization of Chem-Con . . . . . . . . . 35
8.1.3 Ordinary Course of Business . . . . . . . . . . . . 35
8.1.4 Sale of Assets. . . . . . . . . . . . . . . . . . . 37
8.2 No Selling of Shares or Granting of Options. . . . . . . . 37
8.3 Consents . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.4 Governmental Reports . . . . . . . . . . . . . . . . . . . 38
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8.5 Conduct of Business. . . . . . . . . . . . . . . . . . . . 38
8.6 Governmental Approvals . . . . . . . . . . . . . . . . . . 38
8.7 Encumber . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.8 Title Policies for Real Property Owned by Chemical
Florida. . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.9 Title Policies for Real Properties owned by Chemical
Georgia. . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.10 Real Property Located in Orlando, Florida. . . . . . . . . 39
8.11 Survey . . . . . . . . . . . . . . . . . . . . . . . . . . 40
8.12 Public Announcements . . . . . . . . . . . . . . . . . . . 40
8.13 Notification . . . . . . . . . . . . . . . . . . . . . . . 40
8.14 Filings. . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.15 Supplemental Disclosure. . . . . . . . . . . . . . . . . . 41
8.16 SEC Filings. . . . . . . . . . . . . . . . . . . . . . . . 41
8.17 Listing of Perma-Fix Common Stock. . . . . . . . . . . . . 41
8.18 Information for SEC Filings. . . . . . . . . . . . . . . . 41
8.19 Audited Financial Statements . . . . . . . . . . . . . . . 41
8.20 Public Disclosure. . . . . . . . . . . . . . . . . . . . . 42
8.21 Letter of Public Accountants . . . . . . . . . . . . . . . 42
8.22 Assumption of Liabilities. . . . . . . . . . . . . . . . . 43
8.23 Liability to Broker. . . . . . . . . . . . . . . . . . . . 43
8.24 Access to Premises and Books . . . . . . . . . . . . . . . 43
ARTICLE 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
CONDITIONS OF TRANSACTIONS CONTEMPLATED BY AGREEMENT;
ABANDONMENT OF AGREEMENT. . . . . . . . . . . . . . . . . . . . . . 44
9.1 Closing Conditions of Perma-Fix. . . . . . . . . . . . . . 44
9.1.1 Resolutions of Board of Directors and
Shareholders of Chem-Con. . . . . . . . . . . . . . 44
9.1.2 Delivery of Trust Documents . . . . . . . . . . . . 44
9.1.3 Approval by Lender. . . . . . . . . . . . . . . . . 45
9.1.4 Representations and Warranties of the
Sullivans and the Xxxxxxxx Trusts to be True
and Correct and Compliance With Covenants. . . . . . 45
9.1.5 Representations and Warranties of Chem-Con to
be True and Compliance With Covenants. . . . . . . . 45
9.1.6 Third Party Consents. . . . . . . . . . . . . . . . 46
9.1.7 No Material Adverse Change. . . . . . . . . . . . . 46
9.1.8 Statutory Requirements; Litigation. . . . . . . . . 46
9.1.9 Opinion of Counsel of Chem-Con, the Sullivans
and the Xxxxxxxx Trusts . . . . . . . . . . . . . . 47
9.1.10 Due Diligence . . . . . . . . . . . . . . . . . . . 47
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9.1.11 Environmental Audit . . . . . . . . . . . . . . . . 47
9.1.12 Stock Certificates. . . . . . . . . . . . . . . . . 47
9.1.13 Permits . . . . . . . . . . . . . . . . . . . . . . 47
9.1.14 No Liens on Assets. . . . . . . . . . . . . . . . . 47
9.1.15 Listing of Perma-Fix Common Stock . . . . . . . . . 48
9.1.16 Minute Books and Stock Ledgers. . . . . . . . . . . 48
9.1.17 Financial Statements. . . . . . . . . . . . . . . . 48
9.1.18 Orlando Real Estate . . . . . . . . . . . . . . . . 48
9.1.19 Title Policies and Surveys. . . . . . . . . . . . . 48
9.1.20 Good Standing Certificates. . . . . . . . . . . . . 48
9.1.21 Resignation of Directors. . . . . . . . . . . . . . 48
9.1.22 Chem-Met Agreement. . . . . . . . . . . . . . . . . 49
9.1.23 Valdosta Remediation. . . . . . . . . . . . . . . . 49
9.1.24 Shareholder Approval. . . . . . . . . . . . . . . . 49
9.1.25 Accountants Letters . . . . . . . . . . . . . . . . 49
9.1.26 Officer and Director Waiver . . . . . . . . . . . . 49
9.1.27 Fairness Opinion. . . . . . . . . . . . . . . . . . 49
9.1.28 Michigan Strategic Fund . . . . . . . . . . . . . . 49
9.2 Conditions to Obligations of Chem-Con and The ALS
Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.2.1 Resolutions of Perma-Fix Board of Directors
and Shareholders. . . . . . . . . . . . . . . . . . 49
9.2.2 Representations and Warranties of Perma-Fix
to be True. . . . . . . . . . . . . . . . . . . . . 50
9.2.3 No Material Adverse Change. . . . . . . . . . . . . 50
9.2.4 Litigation. . . . . . . . . . . . . . . . . . . . . 50
9.2.5 Opinion of Counsel of Perma-Fix . . . . . . . . . . 51
9.3 Termination of Agreement and Abandonment of
Acquisitions . . . . . . . . . . . . . . . . . . . . . . . 51
9.3.1 Conditions of the Sullivans, the Xxxxxxxx
Trusts or Chem-Con Not Met. . . . . . . . . . . . . 51
9.3.2 Conditions of Perma-Fix Not Met . . . . . . . . . . 51
9.3.3 Termination by Perma-Fix or the Sullivans
under Section 9.3 of the Chem-Met Agreement. . . . .51
9.3.4 Mutual Consent . . . . . . . . . . . . . . . . . . .51
9.4 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . .51
ARTICLE 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
TERMINATION OF OBLIGATIONS AND WAIVER OF CONDITIONS. . . . . . . . .51
10.1 Termination . . . . . . . . . . . . . . . . . . . . . . . .51
10.2 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . .52
ARTICLE 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
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INDEMNIFICATION AND SURVIVAL OF
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . .52
11.1 Indemnification by the Sullivans and the Xxxxxxxx
Trusts. . . . . . . . . . . . . . . . . . . . . . . . . . .52
11.2 Indemnification as to Four County Landfill. . . . . . . . .53
11.3 Notice of Claim . . . . . . . . . . . . . . . . . . . . . .53
11.4 Survival of Representations and Remedies. . . . . . . . . .54
ARTICLE 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . .54
12.1 Entire Agreement and Amendment. . . . . . . . . . . . . . .54
12.2 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . .54
12.3 Governing Law . . . . . . . . . . . . . . . . . . . . . . .54
12.4 Benefit of Parties; Assignment. . . . . . . . . . . . . . .54
12.5 Pronouns. . . . . . . . . . . . . . . . . . . . . . . . . .54
12.6 Headings. . . . . . . . . . . . . . . . . . . . . . . . . .55
12.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . .55
12.8 Time. . . . . . . . . . . . . . . . . . . . . . . . . . . .55
12.9 Severability. . . . . . . . . . . . . . . . . . . . . . . .55
12.10 Counterparts. . . . . . . . . . . . . . . . . . . . . . .56
12.11 Termination of Previous Agreement as defined in the
seventh WHEREAS clause of this Agreement. . . . . . . . .56
Schedule "A" - List of all jurisdictions in which Chem-Con is
authorized to do business
Schedule "B" - List of all of Chem-Con's ownership interests
in other business enterprises
Schedule "C" - Liabilities
Schedule "D" - List of all transactions of Chem-Con since
September 30, 1998
Schedule "E" - Tax Returns; Payment of Taxes; Waiver of
Statute of Limitations; Tax Deficiencies
Schedule "F" - List of all Permitted Encumbrances and Liens
on Chem-Con assets; Real Property owned by
Chem-Con; title insurance policies; leases;
Chem-Con personal property; notices of
violations
Schedule "G" - List of all contracts
Schedule "H" - List of contracts, leases, and agreements re
Chem-Con business (copies)
Schedule "I" - Permits and licenses and reports since
December 31, 1990
Schedule "J" - Litigation
Schedule "K" - List of all trade names, trademarks, service
marks, patents, copyrights and applications
Schedule "L" - Insurance
Schedule "M" - Disposition of Assets
Schedule "N" - Determination letters on benefit plans
Schedule "O" - Condition of plant, machinery and equipment
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Schedule "P" - Indebtedness of Shareholders
Schedule "Q" - Bank accounts/borrowing resolutions of Chem-
Con; Powers of Attorney
Schedule "R" - Intentionally Omitted
Schedule "S" - Year 2000 Information
Exhibit "A" - Permitted Encumbrances
Exhibit "B" - First Promissory Note
Exhibit "C" - Second Promissory Note
Exhibit "D" - Non-Recourse Guaranty
Exhibit "E" - Mortgage
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement"), dated as
of the 27th day of May, 1999, among PERMA-FIX ENVIRONMENTAL
SERVICES, INC., a Delaware corporation ("Perma-Fix"); CHEMICAL
CONSERVATION CORPORATION; a Florida corporation ("Chemical
Florida"); CHEMICAL CONSERVATION OF GEORGIA, INC., a Georgia
corporation ("Chemical Georgia"); The XXXXXX X. XXXXXXXX LIVING
TRUST, dated September 6, 1978 ("TPS Trust"); The XXX X. XXXXXXXX
LIVING TRUST, dated September 6, 1978 ("ALS Trust"); XXXXXX X.
XXXXXXXX, an individual ("TPS"); and XXX X. XXXXXXXX, an individual
("ALS"). Collectively, the TPS Trust and the ALS Trust are
referred to herein as the "Xxxxxxxx Trusts,"; TPS and ALS are
collectively referred to as the "Sullivans"; and Chemical Florida
and Chemical Georgia are referred to herein as "Chem-Con."
W I T N E S S E T H:
WHEREAS, the ALS Trust is the sole and exclusive owner
of all of the issued and outstanding capital stock of Chemical
Florida and Chemical Georgia (collectively the "Chem-Con Common
Stock");
WHEREAS, ALS is the sole trustee and primary
beneficiary of the ALS Trust;
WHEREAS, TPS is the sole trustee and primary
beneficiary of the TPS Trust;
WHEREAS, the Sullivans are husband and wife;
WHEREAS, the Board of Directors of Perma-Fix and
Chemical Florida deem it advisable and in the best interest of each
corporation and its respective stockholders that Perma-Fix purchase
all of the outstanding capital stock of Chemical Florida in order
to advance the long-term business interest of each corporation;
WHEREAS, the Board of Directors of Perma-Fix and
Chemical Xxxxxxx xxxx it advisable and in the best interests of
each corporation and its respective stockholders that Perma-Fix
purchase all of the outstanding capital stock of Chemical Georgia
in order to advance the long-term business interest of each
corporation;
WHEREAS, Chem-Con Corp., a Florida corporation ("CCC")
is a wholly owned subsidiary of Chemical Florida.
WHEREAS, the parties previously entered into a certain
"Agreement and Plan of Merger" dated March 15, 1999 among Perma-
Fix; Florida Perma-Chem, Inc., a Florida corporation; Georgia
Perma-Chem, Inc., a Georgia corporation; Chemical Florida; Chemical
Georgia; TPS Trust; ALS Trust; TPS; and ALS pursuant to which Chem-
Con would merge with and into certain wholly-owned subsidiaries of
Perma-Fix ("Agreement and Plan of Merger");
WHEREAS, due to changing circumstances, the parties
hereto desire that this Agreement serve to amend, restate and
replace the Agreement and Plan of Merger and that the Agreement and
Plan of Merger be considered null and void and of no effect
whatsoever upon execution of this Agreement and that any rights or
duties created under the Agreement and Plan of Merger be discharged
in their entirety as of the execution of this Agreement to be fully
supplanted by the rights and duties created hereunder;
WHEREAS, the parties hereto desire that Perma-Fix
purchase all of the outstanding shares of capital stock of Chemical
Florida, pursuant to the terms of this Agreement (the "Florida
Acquisition"), and the parties desire to provide for certain
undertakings, conditions, representations, warranties and covenants
in connection with such transactions contemplated hereby;
WHEREAS, the parties hereto desire that Perma-Fix
purchase all of the outstanding shares of capital stock of Chemical
Georgia, pursuant to terms of this Agreement, (the "Georgia
Acquisition"), and the parties desire to provide for certain
undertakings, conditions, representations, warranties and covenants
in connection with such transactions;
WHEREAS, the Florida Acquisition and the Georgia
Acquisition are collectively referred to herein as the
"Acquisitions";
WHEREAS, as a necessary and integral part of this
Agreement, the Sullivans, the Xxxxxxxx Trusts, Perma-Fix and
Chem-Met (as defined below) have entered into the Chem-Met
Agreement (as defined below) and the closing of the Chem-Met
Agreement as a necessary and integral condition to the execution of
this Agreement and the Closing (as defined below) of this
Agreement.
WHEREAS, prior to execution of the Agreement, TPS
served as the President of Chemical Florida, Chemical Georgia and
Chem-Met (as defined herein);
WHEREAS, TPS possesses extensive knowledge of Chemical
Florida's, Chemical Georgia's and Chem-Met's affairs;
WHEREAS, in order to induce Perma-Fix to enter into
this Agreement, TPS has agreed to a certain covenant not to compete
and to maintain the confidentiality of information he has received
from Chem-Con and Chem-Met pursuant to the terms of this Agreement;
WHEREAS, the Board of Directors of Perma-Fix has
approved and adopted the Acquisitions and this Agreement;
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WHEREAS, the Board of Directors and the shareholders of
Chemical Florida and Chemical Georgia have approved the execution,
delivery and performance by Chemical Florida and Chemical Georgia
of this Agreement, and the transaction contemplated thereunder and
the obligations of Chemical Florida and Chemical Georgia
thereunder.
NOW, THEREFORE, in consideration of the premises and
the mutual covenants, agreements, representations and warranties
herein contained, the parties hereto agree as follows:
ARTICLE
1
DEFINITIONS
___________
For purposes of this Agreement, the following terms
shall have the respective meanings set forth below:
1.1 "Acquisitions" has the meaning as defined in the thirteenth
WHEREAS clause of this Agreement.
1.2 "Affiliate" has the meaning set forth in Rule 405 promulgated
under the Securities Act, whether or not such is an Affiliate
now or becomes an Affiliate after the date hereof.
1.3 "Agreement and Plan of Merger" has the meaning as defined in
the ninthWHEREAS clause of this Agreement.
1.4 "Chem-Con Common Stock" has the meaning as specified in
Section 4.3 hereof.
1.5 "Chem-Con Intellectual Property Rights" has the meaning as
defined in Section 4.8.1 of this Agreement.
1.6 "Chemical Florida Shares" means all of the issued and
outstanding shares of capital stock of Chemical Florida of
whatsoever character and description.
1.7 "Chemical Georgia Shares" means all of the issued and
outstanding shares of capital stock of Chemical Georgia of
whatsoever character and description
1.8 "Chem-Met " shall mean Chem-Met Services, Inc. a Michigan
corporation.
1.9 "Chem-Met Agreement " shall mean that certain Stock Purchase
Agreement among Perma-Fix, Chem-Met, the Xxxxxxxx Trusts and
the Sullivans, dated as of the date of this Agreement, whereby
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Perma-Fix is to purchase all of the outstanding capital stock
of Chem-Met.
1.10 "Chem-Met Acquisition" shall mean the purchase by Perma-Fix of
all of the capital stock of Chem-Met of whatsoever character
and description pursuant to the Chem-Met Agreement.
1.11 "Closing" has the meaning as specified in Section 2.2 hereof.
1.12 "Closing Date" has the meaning as specified in Section 2.2
hereof.
1.13 "Code" means the Internal Revenue Code of 1986, as amended.
1.14 "Environmental Laws" mean all federal, state, county, local
and foreign environmental, health, and safety laws, codes,
ordinances and all rules and regulations promulgated
thereunder, including, without limitation, laws relating to
management, emissions, discharges, releases or threatened
releases of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes into the
environment (including, without limitation, air, surface
water, groundwater, land surface or subsurface strata) or
otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, chemicals, petroleum
products or industrial, solid, toxic or hazardous substances
or wastes. Environmental Laws include, without limitation,
(i) the Federal Water Pollution Control Act ("FWPCA"), 33
U.S.C. Section 1251, et seq.; (ii) the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.
Section 9601, et seq.; (iii) the Resource Conservation and Recovery
Act ("RCRA"), 42 U.S.C. Section 6901, et seq.; (iv) the Clean Air
Act ("Clean Air Act"), 42 U.S.C. Section 7401, et seq; (v) the Toxic
Substances Control Act ("TSCA"), 15 U.S.C. Section 201, et seq.;
(vi) any and all other analogous state and local statutes;
and, (vii) all rules and regulations promulgated under any of
the foregoing.
1.15 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations promulgated
thereunder.
1.16 "GAAP" means United States generally accepted accounting
principles.
1.17 "Governmental Authority" means any agency, instrumentality,
department, commission, court, tribunal or board of any
government, whether foreign or domestic and whether national,
federal, state, provincial, or local.
1.18 "Laws" mean any and all federal, state and local laws, rules,
regulations, codes, orders, ordinances, judgments, injunctions
and decrees.
-4-
1.19 "Liens" mean all security interests, liens, mortgages, claims,
charges, pledges, restrictions, equitable interests,
easements, property rights or encumbrances of any nature.
1.20 "Mineral Rights" mean the mineral and oil and gas rights,
interest and leases, pipelines and pipeline rights of way
situated on and under the Real Property.
1.21 "Permitted Encumbrances" means (i) liens listed on Exhibit "A"
attached hereto; (ii) liens for taxes not yet delinquent or
being contested in good faith by appropriate proceedings; and,
(iii) such technical imperfections of title and easements, if
any, which do not in the sole discretion of Perma-Fix, when
considered together, detract materially from the value of, or
interfere with, the present or presently proposed use of, any
Real Property.
1.22 "Perma-Fix Common Stock" means the Common Stock, par value
$.001 per share, of Perma-Fix.
1.23 "Promissory Notes" has the meaning specified in Section 3.1
hereof.
1.24 "Quanta" means Xbox Corporation, a Michigan corporation,
formerly known as Quanta Corporation, in which all of its
issued and outstanding capital stock is owned by the ALS
Trust.
1.25 "Real Property" means all real property, land, buildings,
improvements and structures owned or leased by Chem-Con.
1.26 "Returns" mean all returns, declaration, reports, estimates,
information returns and statements required to be filed with
or supplied to any taxing authority in connection with any
Taxes.
1.27 "Securities Act" means the Securities Act of 1933, as amended.
1.28 "SEC" means the U.S. Securities and Exchange Commission.
1.29 "Shares" means all of the issued and outstanding shares of
capital stock of Chemical Florida and Chemical Georgia of
whatsoever character and description.
1.30 "Subsidiaries" means all corporations fifty percent (50%) or
more of the common stock or other form of equity of which
shall be owned, directly or indirectly through one or more
intermediaries, by another corporation.
1.31 "Taxes" mean all taxes, charges, fees, levies or other
assessments, including, without limitation, income, gross
receipts, excise, real and personal property, sales, transfer,
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license, payroll and franchise taxes, imposed by any
Governmental Authority and shall include any interest,
penalties or additions to tax attributable to any of the
foregoing.
ARTICLE 2
THE ACQUISITIONS
________________
2.1 The Acquisitions.
2.1.1 Acquisitions of Chemical Florida and Chemical Georgia.
Subject to the terms of this Agreement, at the Closing,
the ALS Trust shall sell, assign, transfer and convey
to Perma-Fix, and Perma-Fix shall purchase from the ALS
Trust, all of the Shares, free and clear of any and all
Liens, pursuant and subject to the terms of this
Agreement. Chemical Florida and Chemical Georgia agree
to the Acquisitions, and the Board of Directors and
Shareholders of Chemical Florida and Chemical Georgia
have approved this Agreement and the execution,
delivery and performance thereof by Chemical Florida
and Chemical Georgia.
2.2 Closing. The closing of the Acquisitions (the "Closing") will
take place at 10:00 a.m., Central Standard Time, pursuant to
the terms of this Agreement on May 27, 1999 (the "Closing
Date"), at the offices of Xxxxxx & Xxxxxxx, P.C., One
Leadership Square, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xxxxxxxx
Xxxx, Xxxxxxxx, 00000, unless another date, place or time is
agreed to in writing by Perma-Fix and Chem-Con.
2.3 ALS Trust/TPS Trust Nominee on Perma-Fix's Board of Directors.
2.3.1 ALS Trust/TPS Trust Nominee to Perma-Fix Board of
Directors. Subject to and except as otherwise provided
by, the terms of this Section 2.3.1, after the Closing
Date, and provided that at all times through the date
of Perma-Fix's annual meeting of shareholders at which
the Xxxxxxxx Trusts are entitled to have their one (1)
nominee ("Xxxxxxxx Nominee") elected to Perma-Fix's
Board of Directors under this Section 2.3.1, the
Xxxxxxxx Trusts owns of record, in the aggregate, not
less than 1,500,000 shares of the Perma-Fix Common
Stock that the Xxxxxxxx Trusts acquired under this
Agreement and the Chem-Met Agreement, the Xxxxxxxx
Trusts may select one (1) nominee for nomination to
Perma-Fix's Board of Directors and Perma-Fix agrees to
recommend to the shareholders of Perma-Fix at Perma-
Fix's annual meeting of shareholders the one nominee
selected by the Xxxxxxxx Trusts if such Xxxxxxxx
Nominee is satisfactory to the Board of Directors of
Perma-Fix, along with all other nominees nominated by
the Board of Directors of Perma-Fix, for election to
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the Board of Directors of Perma-Fix. Notwithstanding
the above, if at any time and for any reason after the
Closing Date the Xxxxxxxx Trusts' ownership of record
of Perma-Fix Common Stock acquired under this Agreement
and the Chem-Met Agreement is, in the aggregate, less
than 1,500,000 shares of Perma-Fix Common Stock, then
the Xxxxxxxx Trusts shall not be entitled to have a
Xxxxxxxx Nominee elected or recommended by Perma-Fix
for election to the Board of Directors of Perma-Fix.
Nothing contained in this Section 2.3.1 shall obligate
or cause the Board of Directors of Perma-Fix to violate
any of their fiduciary duties. Notwithstanding the
foregoing, from and after the breach or default by any
of the Sullivans and/or the Xxxxxxxx Trusts of any of
their obligations, agreements or covenants contained in
this Agreement or the Chem-Met Agreement, the Xxxxxxxx
Trusts shall have no further rights under this Section
2.3.1 and no further right to designate a Xxxxxxxx
Nominee and Perma-Fix shall have no obligation to
recommend or otherwise take affirmative action
regarding any nominee of the Xxxxxxxx Trusts for a
position on the Perma-Fix Board of Directors.
2.3.2 Information Regarding Xxxxxxxx Nominees. During the
period that the Xxxxxxxx Trusts are entitled to have
one nominee elected to the Board of Directors of Perma-
Fix, the Xxxxxxxx Trusts shall provide to the President
of Perma-Fix the name of such nominee or nominees and
a written description of such nominee or nominees
within 120 days prior to the date of the annual meeting
of shareholders at which the Xxxxxxxx Nominee is to be
elected to Perma-Fix's Board of Directors. The written
description of such nominee or nominees must contain
all such information regarding such nominee or nominees
as is required to be disclosed in a Perma-Fix Proxy
Statement relating to the election of directors under
Schedule 14A as promulgated under Section 14(a) of the
Exchange Act (including, but not limited to,
information required by Item 401 of Regulation S-K).
Within thirty (30) days after receipt by the President
of Perma-Fix of such written information regarding the
Xxxxxxxx Trusts proposed nominee, Perma-Fix shall
advise the Xxxxxxxx Trusts if such nominee is not
acceptable to the Board of Directors of Perma-Fix. If
any such nominee selected by the Xxxxxxxx Trusts is not
acceptable, the Xxxxxxxx Trusts shall, within ten (10)
days from being advised by Perma-Fix that its nominee
is not acceptable to the Board of Directors of Perma-
Fix, supply the name and the required written
description concerning the Xxxxxxxx Trusts' new
nominee, if any, with such new nominee to be
satisfactory to the Board of Directors of Perma-Fix.
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ARTICLE 3
CONSIDERATION FOR SHARES
________________________
3.1 Purchase Price. Subject to the terms of this Agreement, at
the Closing Perma-Fix shall pay to the ALS Trust the total
consideration of $6,200,000 (the "Purchase Price") for the
Shares which Purchase Price shall be payable at the Closing as
follows: (i) $3,000,000 payable by the issuance of 1,500,000
shares of Perma-Fix Common Stock, which shares shall be issued
pursuant to this Agreement, with each such share based on an
agreed upon value of $2.00 per share; (ii) delivery of a
Perma-Fix Promissory Note in the original principal amount of
$1,230,000 ("First Promissory Note"), with such First
Promissory Note bearing an annual rate of interest of 5.5% for
the first three years and 7% for the remaining two years,
payable in equal monthly installments of principal and
interest of $23,625, and delivery of a Perma-Fix Promissory
Note in the original principal amount of $1,970,000 ("Second
Promissory Note"), with such Second Promissory Note bearing an
annual rate of interest of 5.5% for the first three years and
7% for the remaining two years, payable in equal monthly
installments of principal and interest of $37,839.49. The
First Promissory Note shall be in substantially the same form
as attached hereto as Exhibit "B". The Second Promissory Note
shall be substantially the same form as attached hereto as
Exhibit "C". The First Promissory Note and the Second
Promissory Note collectively referred to as the "Promissory
Notes." At the Closing, Chem-Met shall execute (i) a
non-recourse guaranty ("Non-Recourse Guaranty"), a copy of
which is attached hereto as Exhibit "D", which Non-Recourse
Guaranty will guarantee Perma-Fix's payment obligations under
the First Promissory Note and Second Promissory Note, and (ii)
the Mortgage, a copy of which is attached hereto as Exhibit
"E" (the "Mortgage"), securing Chem-Met's performance under
the Non-Recourse Guaranty.
3.2 Guarantee Period. If the ALS Trust owns any of the shares of
Perma-Fix Common Stock issued to the ALS Trust at the Closing
pursuant to clause (i) of Section 3.1 hereof at the end of
eighteen (18) months from the Closing Date (the "Guarantee
Period") and the market value (as determined below) per share
of Perma-Fix Common Stock at the end of the Guarantee Period
is less than $2.00 per share, Perma-Fix agrees to pay the ALS
Trust, within ten (10) business days after the end of the
Guarantee Period, an amount equal to the sum determined by
multiplying the number of shares of Perma-Fix Common Stock
issued to the ALS Trust under Section 3.1 hereof that are
still owned by the ALS Trust at the end of the Guarantee
Period by $2.00 less the market value (as determined below) of
such shares of Perma-Fix Common Stock owned by the ALS Trust
at the end of the Guarantee Period, with such amount, if any,
payable by Perma-Fix to the ALS Trust, at Perma-Fix's option,
in cash or in Perma-Fix Common Stock or a combination thereof.
Notwithstanding anything herein to the contrary, the aggregate
number of shares of Perma-Fix Common Stock issued or issuable
under this Agreement for any reason whatsoever shall not
-8-
exceed eighteen percent (18%) of the number of issued and
outstanding shares of Perma-Fix Common Stock on the date
immediately preceding the Closing Date. The market value of
each share of Perma-Fix Common Stock at the end of the
Guarantee Period shall be determined based on the average of
the closing sale price per share of Perma-Fix Common Stock as
reported on the NASDAQ for the five (5) consecutive trading
days ending with the trading day immediately prior to the end
of the Guarantee Period. The "market value" of each share of
Perma-Fix Common Stock issued by Perma-Fix, if any, in
payment, in whole or in part, of such amount due to the ALS
Trust under this Section 3.2 shall be based on the average of
the closing sale price per share of Perma-Fix Common Stock as
reported on the NASDAQ for five (5) consecutive trading days
ending with the trading day immediately prior to the end of
the Guarantee Period. For a period of thirty (30) calendar
days prior to the end of the Guarantee Period, (i) the
Sullivans and the Xxxxxxxx Trusts shall not, directly or
indirectly, or in conjunction with or through any other
person, firm, corporation, entity, partnership, company or
association, sell or dispose of or otherwise transfer any
shares of Perma-Fix Common Stock, or other securities of
Perma-Fix, and (ii) Perma-Fix shall not, and shall cause its
directors to not, buy or otherwise acquire any shares of
Perma-Fix Common Stock over the NASDAQ (other than in
connection with the exercise of any outstanding warrants or
the conversion of any outstanding options or convertible
securities of Perma-Fix, or in connection with an
underwrittten public offering of Perma-Fix Common Stock).
3.3 Exchange of Shares for the Purchase Price. The procedure for
the ALS Trust exchanging all of the outstanding Shares for the
Purchase Price pursuant to this Agreement is as follows: at
the Closing, the ALS Trust, being the sole beneficial and
record owner of all of the issued and outstanding Shares,
shall deliver to Perma-Fix all certificates representing all
of the issued and outstanding Shares (the "Certificates"),
duly and validly endorsed, in the name of Perma-Fix, with
signatures guaranteed by a national bank or investment banking
firm, and, subject to the terms and conditions of this
Agreement, the ALS Trust, being the sole and exclusive holder
of any and all such Certificates shall be entitled to receive
in exchange for all of the Shares the following: (i) a
certificate representing 1,500,000 shares of Perma-Fix Common
Stock, (ii) the First Promissory Note, duly executed by
Perma-Fix, and (iii) the Second Promissory Note duly executed
by Perma-Fix, all pursuant to Section 3.1 hereof.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE ALS TRUST,
THE TPS TRUST, ALS, TPS AND CHEM-CON
_________________________________________________
The ALS Trust, the TPS Trust, ALS, TPS, Chemical
Florida and Chemical Georgia, jointly and severally, represent and
warrant to Perma-Fix that, as of the date of this Agreement and as
of the Closing, the following:
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4.1 Organization of the Xxxxxxxx Trusts. The Xxxxxxxx Trusts are
valid trusts. ALS is the primary beneficiary under the ALS
Trust, and ALS is the sole trustee under the ALS Trust. TPS
is the primary beneficiary of the TPS Trust, and TPS is the
sole trustee under the TPS Trust. ALS, as sole trustee under
the ALS Trust, and TPS as sole trustee under the TPS Trust,
have full power, authority and capacity to enter into this
Agreement and to perform any and all obligations and covenants
of the ALS Trust and the TPS Trust under this Agreement.
4.2 Organization of Chem-Con. Each of Chemical Florida, Chemical
Georgia and CCC is a corporation duly organized, validly
existing and in good standing under the laws of the respective
jurisdiction of its incorporation, and each has the corporate
power to own its properties and to carry on its business as is
now being conducted. Each of Chemical Florida, Chemical
Georgia and CCC is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the nature
of the business conducted by it or the character of the
property owned, leased or used by it makes such qualification
necessary. A list of all such jurisdictions, separately shown
and indicated, is set forth on Schedule "A" attached hereto.
4.3 Capital Stock of Chem-Con. The authorized capital stock of
Chemical Florida consists solely of seven thousand five
hundred (7,500) shares of common stock, par value $1.00
("Chemical Florida Common Stock"), of which two hundred (200)
shares are issued and outstanding and all of such issued and
outstanding shares of Chemical Florida Common Stock are owned
of record and beneficially by the ALS Trust. The authorized
capital stock of Chemical Georgia consists solely of one
hundred thousand (100,000) shares of common stock, par value
$1.00 ("Chemical Georgia Common Stock"), of which seventy-five
thousand (75,000) shares are issued and outstanding and all of
such issued and outstanding shares of Chemical Georgia Common
Stock are owned of record and beneficially by the ALS Trust.
The authorized capital stock of CCC consists solely of seven
thousand five hundred (7,500) shares of common stock, par
value $1.00 ("CCC Common Stock"), of which one hundred (100)
shares are issued and outstanding and all of such issued and
outstanding shares of CCC Common Stock are owned of record and
beneficially by Chemical Florida. Collectively, the Chemical
Florida Common Stock, and the Chemical Georgia Common Stock
are referred to herein as the "Chem-Con Common Stock." No
shares of Chem-Con Common Stock or shares of CCC Common Stock
are held in treasury or reserved for issuance at a later date.
All of the issued and outstanding shares of Chem-Con Common
Stock and of CCC Common Stock are (i) validly authorized and
issued, (ii) fully paid and nonassessable and (iii) free and
clear of any and all Liens. Subsequent to September 30, 1998,
Chem-Con has not declared or paid any dividend, or declared or
made any distribution on, or authorized the creation or
issuance of, or issued, or authorized or effected any split-up
or any other recapitalization of, any of its capital stock, or
directly or indirectly redeemed, purchased or otherwise
acquired any of their respective outstanding capital stock or
agreed to take any such action. There are no outstanding
contractual obligations of Chem-Con or CCC to repurchase,
redeem or otherwise acquire any of their respective
outstanding shares of capital stock. There are no outstanding
agreements, options, warrants or rights to subscribe for or
-10-
purchase from or otherwise receive from Chem-Con, CCC, or the
ALS Trust or any other party any of Chem-Con's or CCC's
capital stock or other securities of any kind or description
of Chem-Con or CCC.
4.4 Ownership Interests in Securities. Set forth on Schedule "B"
attached hereto is a list of all equity or ownership interests
in, and all bonds and debentures of, other business
enterprises which Chem-Con owns and such Schedule indicates
any such interests which are held subject to any legal,
contractual or other limitations or restrictions on the right
to resell the same.
4.5 Financials.
4.5.1 Financial Statements. Chemical Florida and Chemical
Georgia have previously furnished Perma-Fix a true and
correct copy of the audited financial statements for
Chemical Florida, Chemical Georgia, Chem-Met and their
Subsidiaries, on a combined basis, for the fiscal year
ended September 30, 1998, ("Audited Financial
Statements"), consisting of, among other things, (i) a
balance sheet as of September 30, 1998, and (ii)
statement of income and related earnings for the fiscal
year ended September 30, 1998. The Audited Financial
Statements are true, correct and complete in all
material respects and correctly present the financial
conditions and results of operations of Chemical
Florida, Chemical Georgia, Chem-Met and their
Subsidiaries on a combined basis as of the date
thereof. For the purposes of this Agreement, the
Audited Financial Statements shall be deemed to include
any notes to such financial statements. The Audited
Financial Statements have been prepared in conformity
with GAAP, consistently applied throughout the periods
indicated and on a basis consistent with prior periods.
4.5.2 Liabilities. Except as set forth in Schedule "C"
attached hereto, Chemical Florida, Chemical Georgia and
their Subsidiaries do not have any liabilities or
obligations either accrued, absolute, contingent, known
or unknown, matured or unmatured, or otherwise, which
have not been:
4.5.2.1 reflected in the Audited Financial Statements;
or
4.5.2.2 incurred consistent with past practices of
Chem-Con in the ordinary and normal course of
Chem-Con's business since September 30, 1998.
4.5.3 Net Worth. Except as set forth in Schedule "C"
attached hereto, there are no claims against or
liabilities or obligations of, or any legal basis for
any claims against or liabilities or obligations of,
Chem-Con or its Subsidiaries which might result in a
material reduction in the net worth of Chem-Con or its
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Subsidiaries from that shown in the Audited Financial
Statements or any material charge against net earnings
of Chem-Con and its Subsidiaries.
4.5.4 Transactions Since September 30, 1998. Except as set
forth on Schedule "D", between September 30, 1998, and
the date of this Agreement, Chem-Con and its
Subsidiaries have not engaged in any material
transaction not in the ordinary and normal course of
business and, except as set forth on such Schedule "D",
there has not been, occurred or arisen since
September 30, 1998:
4.5.4.1 any material adverse change in the financial
condition or in the operations of the business
of Chem-Con or its Subsidiaries from that
shown on the Audited Financial Statements; or
4.5.4.2 any damage or destruction in the nature of a
casualty loss, or interference with its
business from such loss or from any labor
dispute or court or governmental action, order
or decree, whether covered by insurance or
not, materially and adversely affecting the
properties or business of Chem-Con or its
Subsidiaries; or
4.5.4.3 any increase, except increases given in
accordance with prior practice, in the
compensation payable or to become payable by
Chem-Con or its Subsidiaries to any of Chem-
Con's or its Subsidiaries' employees or any
increase in the benefits, regardless of
amount, in any bonus, insurance, pension or
other plan, program, payment or arrangement
with respect to employee benefits made to, for
or with any officers or employees; or
4.5.4.4 any extraordinary loss (as defined in Opinions
No. 9 and No. 30 of the Accounting Principles
Board of American Institute of Certified
Public Accountants) suffered by Chem-Con or
its Subsidiaries which is material to Chem-Con
or its Subsidiaries, or any waiver by Chem-Con
or its Subsidiaries of any rights which are
material to Chem-Con or its Subsidiaries.
4.6 Tax and Other Returns and Reports.
4.6.1 Tax Returns. All federal, state, local, foreign,
personal property, and real property tax returns
required to be filed by the ALS Trust and Chem-Con and
its Subsidiaries have been timely filed with the
appropriate governmental agencies in all jurisdictions
in which such returns and reports are required to be
filed.
4.6.2 Payment of Taxes. All federal, state, local and
foreign taxes (including interest and penalties), due
from the ALS Trust, Chem-Con and its Subsidiaries (i)
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have been fully paid, or (ii) are being contested in
good faith by appropriate proceedings and are disclosed
on Schedule "E" attached hereto.
4.6.3 Waiver of Statute of Limitations. No waivers of
statutes of limitation in respect of any Returns or tax
reports have been given or requested, except as shown
on such Schedule "E".
4.6.4 Tax Deficiencies. There are no potential tax
deficiencies which may arise from issues which have
been raised or which have not yet been raised but which
might reasonably be expected to be raised by the
Internal Revenue Service ("IRS") or any other taxing
authority that have not been disclosed on Schedule "E"
and may reasonably be expected to have a material
adverse effect on Chem-Con or its Subsidiaries.
4.7 Property.
4.7.1 Assets. Except as disclosed in Schedule F attached
hereto: Chem-Con and its Subsidiaries own and have good
and marketable title in and to all of the assets used
by them in the operation or conduct of their business,
or required by Chem-Con and its Subsidiaries for the
normal and ordinary conduct of their business, free and
clear of any and all Liens, except for Permitted
Encumbrances.
4.7.2 Real Property. Schedule "F" attached hereto lists all
Real Properties owned by Chem-Con and its Subsidiaries.
Chem-Con and its Subsidiaries have good and marketable
title in fee simple to all of the respective Real
Property owned by them, free and clear of any and all
Liens, except for Permitted Encumbrances, and have
access thereto such as is reasonable to permit the
present or presently proposed use of any such
properties. Schedule "F" indicates which of the
properties listed is covered by a title insurance
policy and a description of each such title insurance
policy is set forth on Schedule "F". The Real Property
owned by Chem-Con and its Subsidiaries contains no
encroachments on abutting property, public or private,
and no material encroachments by others on either of
their properties. Chem-Con and its Subsidiaries,
whichever is applicable, owns all of the Mineral Rights
under the Real Property owned by them.
4.7.3 Leases. Schedule "F" sets forth a true and complete
list of each lease of real or personal property
executed by or binding upon Chem-Con or its
Subsidiaries, as lessee, sublessee, tenant or assignee
setting forth in each case a brief description of the
property covered by the lease, the rental and the terms
thereunder. Each lease is in full force and effect,
without any default or breach thereof by any party
thereto. No consent of any landlord, lessor or any
other party is required under any such lease to keep
such lease in full force and effect without being
terminable or in default after the execution and
delivery of this Agreement and consummation of the
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transactions contemplated by this Agreement. True and
complete copies of all leases required to be listed on
Schedule "F", including all amendments, addenda,
waivers and all other binding documents, have
heretofore been delivered to Perma-Fix.
4.7.4 Notice. Except as set forth on Schedule "F", none of
Chem-Con or any of its Subsidiaries, any of the
Xxxxxxxx Trusts nor any of the Sullivans has received
actual or constructive notice of any violation of any
zoning, use, occupancy, building, or environmental
statute, ordinance, regulation, order, or other law or
requirement affecting or relating to any activities
performed at any time on any Real Property. None of
the Xxxxxxxx Trusts, the Sullivans, Chem-Con nor any of
the Subsidiaries of Chem-Con has any knowledge of any
past, present, or future events, conditions,
circumstances, activities, incidents, actions, or plans
that may in any way interfere with or limit the
continued use of said Real Property for all present or
presently proposed use of said Real Property.
4.7.5 Personal Property. Chem-Con and its Subsidiaries own
the full right and interest and have good and
marketable title in and to all material personal and
intangible property used by Chem-Con and its
Subsidiaries in the conduct of Chem-Con's and its
Subsidiaries' business and none of such personal and
intangible property is subject (i) to any contracts of
sale, or (ii) to any Liens, except for Permitted
Encumbrances.
4.7.6 Notice from Insurance Carrier. None of the Sullivans,
the Xxxxxxxx Trusts, Chem-Con nor its Subsidiaries has
received any notice of, or writing referring to, any
requirements or recommendations by any insurance
company which has issued a policy covering any part of
the Real Property requiring or recommending any repairs
or work or other action being taken on any part of the
Real Property, except as otherwise disclosed in
Schedule "F". All utilities required for the operation
of the Real Property in the manner currently operated
by Chem-Con or its Subsidiaries are installed and
operating, and all installation and connection charges
have been paid in full or provided for.
4.8 Intellectual Property.
4.8.1 Ownership. Schedule "K" attached hereto is a true and
complete list of all patents, trademarks, trade names,
service marks, copyrights, web domain addresses, mask
works, any applications for and registrations of such
patents, trademarks, trade names, service marks,
copyrights, mask works, web domain addresses, and all
processes, formulae, methods, schematics, technology,
know-how, computer software programs or applications
and tangible or intangible proprietary information or
material that Chem-Con or its Subsidiaries is licensed
or otherwise possesses legally enforceable rights to
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use and are necessary to conduct the business of Chem-
Con or its Subsidiaries as currently conducted, or
planned to be conducted, the absence of which would be
reasonably likely to have a material adverse effect
upon Chem-Con or its Subsidiaries (the "Chem-Con
Intellectual Property Rights"). None of the Chem-Con
Intellectual Property Rights is subject to any
outstanding order, judgment, decree, stipulation, or
agreement restricting the use of such Chem-Con
Intellectual Property Rights, and to the best of their
knowledge none infringes on, or is being infringed by,
other intellectual property rights of any other person
or entity. Chem-Con and its Subsidiaries have
promulgated and used commercially reasonable efforts to
enforce and maintain any reasonably necessary trade
secret or confidentiality measures regarding the Chem-
Con Intellectual Property Rights. Neither Chem-Con nor
its Subsidiaries has given or is bound by an agreement
or indemnification regarding Chem-Con Intellectual
Property Rights in connection with any property or
service produced, used or sold by Chem-Con or its
Subsidiaries.
4.8.2 No Breach of License. None of the ALS Trust, Chem-Con
nor its Subsidiaries is, or will as a result of the
execution and delivery of this Agreement or the
performance of their respective obligations under this
Agreement or otherwise be, in breach of any license,
sublicense or other agreement relating to the Chem-Con
Intellectual Property Rights, or any material licenses,
sublicenses and other agreements as to which Chem-Con
or its Subsidiaries is a party and pursuant to which
Chem-Con or its Subsidiaries is authorized to use any
third party patents, trademarks or copyrights ("Chem-
Con Third Party Intellectual Property Rights"),
including software which is used in the manufacture of,
incorporated in, or forms a part of any product sold or
services rendered by or expected to be sold or services
rendered by Chem-Con or its Subsidiaries, the breach of
which would be reasonably likely to have a material
adverse effect upon Chem-Con or its Subsidiaries,
except as disclosed in Schedule "K" hereof.
4.8.3 Year 2000 Issues. Schedule "S" hereof identifies each
"Year 2000" audit, report or investigation that has
been performed by or on behalf of Chem-Con and its
Subsidiaries with respect to their business and
operations, and Chem-Con has provided to Perma-Fix true
and correct copies of all such audits, reports or
investigations. Except as set forth in such audits,
reports and investigations, neither the Sullivans, the
Xxxxxxxx Trusts nor Chem-Con or its Subsidiaries are
aware of any failure to be Year 2000 Compliant of (i)
any software products sold or licensed by Chem-Con or
its Subsidiaries to third parties or (ii) any computer
software products used by or licensed to Chem-Con or
its Subsidiaries from third parties for internal use by
Chem-Con or its Subsidiaries. For purposes of this
Agreement, "Year 2000 Compliant" means, with respect to
each software product referred to in the prior
sentence, that such system (i) will accurately receive,
record, store, provide, recognize and process all date
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and time data from, during, into and between the
twentieth and twenty-first centuries; (ii) will
accurately perform all date-dependent calculations and
operations (including, without limitation, mathematical
operations, sorting, comparing and reporting) from,
during, into and between the twentieth and twenty-first
centuries; and (iii) will not malfunction, cease to
function or provide invalid or incorrect results as a
result of (x) the change of century, (y) date data,
including date data which represents or references
different centuries or more than one century or (z) the
occurrence of any particular date; in each case without
human intervention, other than original data entry;
provided, in each case, that all applications, hardware
and other systems used in conjunction with such system
which are not owned or licensed by Chem-Con or its
Subsidiaries correctly exchange date data with or
provide data to such system. Neither Chem-Con nor its
Subsidiaries has provided any guarantee or warranty
for any product sold or licensed, or services provided,
by Chem-Con or its Subsidiaries to the effect that such
product or service (i) complies with or accounts for
the fact of the arrival of the year 2000 or (ii) will
not be adversely affected with respect to
functionality, operability, performance or volume
capacity (including without limitation the processing
and reporting of data) by virtue of the arrival of the
year 2000. Chem-Con and its Subsidiaries have
performed audits regarding their primary suppliers,
customers, creditors and financial service
organizations with which they have substantial
interaction ("Outside Persons") and have determined
that all of these Outside Persons are substantially
Year 2000 Compliant to the extent that there will be no
material adverse effects to Chem-Con or its
Subsidiaries resulting from a failure of such Outside
Persons to be Year 2000 Compliant. In addition,
Schedule "S" shall set forth in detail the status of
Chem-Con and its Subsidiaries' efforts to address the
Year 2000 issues involving Chem-Con and its
Subsidiaries and such Outside Persons.
4.9 Agreements, Contracts and Commitments.
4.9.1 Contracts. Except as set forth on Schedule "G",
neither Chem-Con nor its Subsidiaries is a party to or
bound by:
4.9.1.1 any collective bargaining agreements or any
agreements that contain any severance pay
liabilities or obligations;
4.9.1.2 any bonus, deferred compensation, pension,
profit-sharing or retirement plans, programs
or other similar employee benefit
arrangements;
4.9.1.3 any employment agreement, contract or
commitment with an employee;
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4.9.1.4 any agreement of guaranty or indemnification
running from Chem-Con or its Subsidiaries to
any person or entity, including, but not
limited to, any Affiliate, other than
guarantees or indemnifications issued in the
ordinary course of Chem-Con's business
relating solely to the indemnification of
certain of its customers due to Chem-Con's
disposal of waste generated by such customers
at permitted disposal facilities not
affiliated with Chem-Con;
4.9.1.5 any agreement, contract or commitment which
would reasonably be expected to have a
material adverse impact on the business of
Chem-Con or its Subsidiaries;
4.9.1.6 any agreement, indenture or other instrument
which contains restrictions with respect to
payment of dividends or any other distribution
in respect of Chem-Con or its Subsidiaries or
any other outstanding securities of Chem-Con
or its Subsidiaries;
4.9.1.7 any agreement, contract or commitment
containing any covenant limiting the freedom
of Chem-Con or its Subsidiaries to engage in
any line of business or compete with any
person;
4.9.1.8 any agreement, contract or commitment relating
to capital expenditures in excess of ten
thousand dollars ($10,000.00) and involving
future payments;
4.9.1.9 any agreement, contract or commitment relating
to the acquisition of assets or capital stock
of any business enterprise;
4.9.1.10 any contract with the Department of
Defense or any other department or agency
of the United States Government, or to
any subcontract under any such contract,
which is subject to renegotiation under
the Renegotiation Act of 1951, as
amended; or
4.9.1.11 any agreement, contract or commitment not
made in the ordinary course of business
which involves Ten Thousand Dollars
($10,000) or more or has a remaining term
of one (1) year or more from December 31,
1998, or is not cancelable on thirty (30)
days or less notice without penalty.
Neither Chem-Con nor its Subsidiaries has
breached, and there is not any claim, or,
to the best of Chem-Con's or the
Sullivans or the Xxxxxxxx Trusts'
knowledge, any claim that Chem-Con or its
Subsidiaries have breached any of the
terms or conditions of any agreement,
contract or commitment set forth in this
Agreement or in any of the Schedules
attached hereto or of any other
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agreement, contract or commitment, if any
such breach or breaches in the aggregate
could result in the imposition of damages
or the loss of benefits in an amount or
of a kind material to Chem-Con or its
Subsidiaries.
4.9.2 Written List. Attached hereto as Schedule "H" is a
written list of all contracts, leases, agreements and
instruments which are in any single case of material
importance to the conduct of the business of Chem-Con
or its Subsidiaries, together with true and correct
copies of each document requested by Perma-Fix and a
written description of each oral arrangement so listed.
Without limiting the generality of the foregoing, the
aforesaid list includes all the contracts, agreements
and instruments of the following types to which Chem-
Con or its Subsidiaries is a party, or by which it is
bound (without regard to whether such contracts,
agreements and instruments are material):
4.9.2.1 leases of, and contracts for, the purchase or
sale of Real Property;
4.9.2.2 labor union contracts together with a list of
all labor unions representing or, to their
best knowledge, attempting to represent
employees of Chem-Con or its Subsidiaries;
4.9.2.3 pension, retirement, profit-sharing, bonus,
stock purchase, stock option, hospitalization
or insurance plans (and certificates or other
documents issued thereunder) or vacation pay,
severance pay and other similar benefit
arrangements for officers, directors,
employees or agents;
4.9.2.4 employment contracts or agreements, contracts
with other persons engaged in sales or service
activities, advertising contracts and
brokering contracts, which are not terminable
by Chem-Con or its Subsidiaries without
liability upon termination notice of thirty
(30) days or less;
4.9.2.5 written or oral agreements, understandings and
arrangements with officers, directors,
employees, shareholders, agents, or Affiliates
of Chem-Con or its Subsidiaries, the Sullivans
or the Xxxxxxxx Trusts relating to present or
future compensation of, or other benefits
available to, such persons;
4.9.2.6 contracts, and other arrangements of any kind,
whether oral or written, with any director,
officer, employee, trustee, stockholder or
Affiliate of Chem-Con or its Subsidiaries, the
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Sullivans or the Xxxxxxxx Trusts or to which
any director, officer, employee or Affiliate
of Chem-Con or any of its Subsidiaries is a
party;
4.9.2.7 contracts, purchase orders and other
arrangements of any nature involving an
expenditure of Five Thousand Dollars
($5,000.00) or more not made in the ordinary
course of business or which involve an
unperformed commitment, under contracts not
otherwise disclosed hereunder, in excess of
Twenty-Five Thousand Dollars ($25,000.00); and
4.9.2.8 indentures, loan agreements, notes, mortgages,
conditional sales contracts, and other
agreements for financing.
4.10 No Breach of Statute or Contract; Governmental Authorizations.
4.10.1 No Violation. Neither the execution and delivery of
this Agreement by Chem-Con, the Sullivans or the
Xxxxxxxx Trusts nor the performance or compliance by
the Chem-Con or its Subsidiaries, the Sullivans or the
Xxxxxxxx Trusts with any of the terms and provisions of
this Agreement will violate any Laws of any
governmental agency or authority, domestic or foreign,
or will at the Closing conflict with or result in a
breach of any of the terms, conditions or provisions of
any judgment, order, injunction, decree or ruling of
any court or governmental agency or authority, domestic
or foreign, to which any of Chem-Con or its
Subsidiaries, the Sullivans or the Xxxxxxxx Trusts may
be subject to, or bound by, or of any agreement or
instrument to which Chem-Con or its Subsidiaries, the
Sullivans or the Xxxxxxxx Trusts is a party or by which
any of them is bound, or constitute a default
thereunder, or result in the creation of any Liens upon
the Chem-Con Common Stock or any of the property or
assets of Chem-Con or its Subsidiaries, or cause any
acceleration of maturity of any obligation or loan, or
give to others any interest or rights, including rights
of termination or cancellation, in or with respect to
any of the properties, assets, agreements, contracts,
or business of Chem-Con or its Subsidiaries, the
Sullivans or the Xxxxxxxx Trusts or cause any
acceleration or termination or cancellation, in or with
respect to any of the properties, assets, agreements,
contracts or business of Chem-Con or its Subsidiaries,
the Sullivans or the Xxxxxxxx Trusts.
4.10.2 Permits and Licenses. Schedule "I" attached hereto is
a true and complete list of all permits, licenses and
franchises presently held by, or used in connection
with, the normal and ordinary business of Chem-Con or
its Subsidiaries and all applications for any of the
foregoing filed by Chem-Con or its Subsidiaries, the
Sullivans or the Xxxxxxxx Trusts relating to the
business of Chem-Con or its Subsidiaries with any
Governmental Authority. All permits, licenses and
franchises used by Chem-Con or its Subsidiaries to
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conduct Chem-Con's or its Subsidiaries' business are in
the name of Chem-Con or its Subsidiaries and none are
in the name of any other party.
4.10.3 Reports. Schedule "I" is a true and complete list of
all reports made by, or with respect to Chem-Con or its
Subsidiaries, the Sullivans or the Xxxxxxxx Trusts
since September 30, 1998, except as otherwise furnished
pursuant to this Agreement, to or from the Federal
Trade Commission ("FTC"), Environmental Protection
Agency ("EPA"), Equal Employment Opportunity Commission
("EEOC"), reports under the Occupational Safety and
Health Act ("OSHA"), the Department of Labor, Florida
Department of Environmental Protection, Georgia
Department of Natural Resources, all other state or
federal government agencies or departments, and tax
returns to, tax rulings from, and tax audit reports
from the IRS, relating in any manner to the business of
Chem-Con or its Subsidiaries.
4.10.4 Violation of Law and Contamination of Real Property.
Except as disclosed in Schedule "I", none of Chem-Con
or its Subsidiaries, the Sullivans nor the Xxxxxxxx
Trusts is in violation of any Laws, (including, but not
limited to, Environmental Laws) which violation might
have a material adverse effect on Chem-Con or its
Subsidiaries or the business of Chem-Con or its
Subsidiaries or the financial condition or operations
of Chem-Con or its Subsidiaries, and none of the Real
Property owned or leased by Chem-Con and/or its
Subsidiaries is contaminated or requires remediation of
any kind as a result of being contaminated.
4.10.5 Permits under Environmental Laws. Chem-Con and its
Subsidiaries have obtained, presently holds and has
adhered to all permits, licenses, and other
authorizations required under federal, state, and local
laws (including, but not limited to, any and all
Environmental Laws), (i) which are necessary for, or
material to, the conduct of Chem-Con's business or its
Subsidiaries' business as such businesses are currently
being operated, including, but not limited to, any and
all permits and licenses required under the
Environmental Laws for Chem-Con and its Subsidiaries to
conduct Chem-Con's business or its Subsidiaries'
business as currently conducted, and (ii) such other
permits, licenses and other authorizations relating to
pollution or protection of the environment, including,
without limitation, laws relating to emissions,
discharges, releases or threatened releases of
pollutants, contaminants (chemicals or industrial or
toxic wastes into the environment including, without
limitation, ambient air, surface waste, groundwater,
soil or land), or otherwise relating to the
manufacture, processing, recycling, reclamation,
distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants,
chemicals, petroleum products, or industrial or solid
or toxic wastes or radioactive materials, except as
disclosed in Schedule I attached hereto. Chem-Con and
its Subsidiaries are in compliance with all terms and
conditions of all such required permits, licenses and
other authorizations, and with all other limitations,
restrictions, conditions, standards, prohibitions,
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requirements, obligations, schedules, and timetables
contained in such Environmental Laws, except as
disclosed in Schedule I attached hereto. None of Chem-
Con or its Subsidiaries, the Sullivans nor the Xxxxxxxx
Trusts after due inquiry, has any knowledge of any
past, present, or future events, actions, or plans that
may interfere with or prevent full compliance or
continued full compliance as described above, or that
may give rise to any common law or legal liability or
otherwise form the basis of any claim, action, demand,
suit, proceeding, hearing, study, or investigation
related to the manufacture, processing, recycling,
reclamation, distribution, use, treatment, storage,
disposal, transport or threatened release of, any
pollutant, contaminant, chemical or industrial or solid
or toxic waste or radioactive materials.
4.10.6 Other Permits. Except as set forth in Schedule "I",
neither the execution and delivery of this Agreement
nor the consummation thereof will violate any of the
terms of any of the permits, licenses, approvals and
authorities held by Chem-Con or its Subsidiaries or
cause the termination or cancellation of any of the
permits, licenses, approvals and authorities held by
Chem-Con or its Subsidiaries. None of Chem-Con or its
Subsidiaries, the Sullivans nor the Xxxxxxxx Trusts has
received official notice that Chem-Con or its
Subsidiaries is in violation of any law, regulation,
ordinance or rule applicable to them or their
operations.
4.11 No Litigation or Adverse Effects. Except as set forth in
Schedule "J", there is no suit, action or legal,
administrative, arbitration, or other proceeding, or
governmental investigation, or any change in the zoning, use,
occupancy or building ordinances affecting the real property
or any leasehold interests of Chem-Con or its Subsidiaries
pending or, to the best of their knowledge threatened, which
could adversely affect the financial condition, results of
operations or business, assets or properties of Chem-Con or
its Subsidiaries, or the conduct of business of Chem-Con or
its Subsidiaries. Further, there is no suit, action or legal,
administrative, arbitration, governmental investigation or
other proceeding against Chem-Con or its Subsidiaries, or to
the best of their knowledge threatened, involving any claims
based upon negligence, product warranties, product liability
or any other type of claim (including, but not limited to,
those arising under any Environmental Laws) exceeding
potential liability (including costs of defense and attorneys'
fees), whether or not covered by insurance, in an amount in
excess of Ten Thousand Dollars ($10,000.00) with respect to
the individual suit, action, proceeding or investigation, or
potential liability (including costs of defense and attorneys'
fees) of Twenty-Five Thousand Dollars ($25,000.00) in the
aggregate of all such suits, actions, proceedings or
investigations, except (a) workers' compensation, automobile
accident and other routine claims wholly covered by existing
insurance (including costs of defense and attorneys' fees) and
(b) as set forth in Schedule "J" hereto.
4.12 Authorization, Execution and Delivery of Agreement. Each of
Chem-Con, the Sullivans and the Xxxxxxxx Trusts has the power,
authority and capacity to enter into this Agreement and to
carry out the transactions contemplated hereby. The
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execution, delivery and the performance of this Agreement by
Chem-Con, the Sullivans and the Xxxxxxxx Trusts have been duly
and validly authorized and approved by all requisite corporate
action on the part of Chem-Con and all requisite action of the
trustees under the Xxxxxxxx Trusts, and this Agreement
constitutes the valid and binding agreement and obligation of
Chem-Con, the Sullivans and the Xxxxxxxx Trusts enforceable in
accordance with its terms, subject to bankruptcy, insolvency
and other laws of similar import.
4.13 Ability to Conduct the Business. None of Chem-Con, its
Subsidiaries, the Sullivans nor the Xxxxxxxx Trusts is subject
to, or bound by, any judgment, order, writ, injunction or
decree of any court or of any governmental body or agency or
of any arbitrator which could prevent the execution, delivery
or performance of this Agreement or the use by Chem-Con or its
Subsidiaries of assets owned, leased or used by Chem-Con or
its Subsidiaries, or the conduct of Chem-Con or its
Subsidiaries's business, as presently conducted by Chem-Con or
its Subsidiaries, in accordance with present practices, after
the Closing. None of Chem-Con or its Subsidiaries, the
Sullivans nor the Xxxxxxxx Trusts is a party to, bound by, or
a beneficiary of, any agreement which could prevent the use of
assets material to Chem-Con or its Subsidiaries or the conduct
of business as currently conducted by Chem-Con or its
Subsidiaries in each case after the Closing.
4.14 Disclosure. No representation or warranty by Chem-Con, the
Sullivans or the Xxxxxxxx Trusts contained in this Agreement
and no statement contained in any certificate, list,
disclosure schedule, exhibit or other instrument furnished, or
to be furnished, to Perma-Fix pursuant hereto, contains or
will contain any untrue statement of a material fact or omits,
or will omit, to state a material fact necessary to make the
statements contained therein not misleading.
4.15 Broker's or Finder's Fee. No agent, broker, person or firm
acting on behalf of Chem-Con, the Sullivans and/or the
Xxxxxxxx Trusts or under the authority of Chem-Con, the
Sullivans and/or the Xxxxxxxx Trusts is or will be entitled to
any commission or broker's or finder's fee from any of the
parties hereto in connection with this Agreement or any of the
transactions contemplated herein, except the Sullivans have
retained WHCA Partners as an agent or firm acting on behalf of
the Sullivans and the Xxxxxxxx Trusts in connection with this
Agreement and the transactions contemplated herein. The
Sullivans and the Xxxxxxxx Trusts shall pay to WHCA Partners
any and all fees and other renumeration due to WHCA Partners
in connection with this Agreement and the transactions
contemplated by this Agreement. Chem-Con shall pay any
expenses due to WHCA Partners for work performed by WHCA
Partners on behalf of Chem-Con prior to November 5, 1998;
provided however, Chem-Con shall not pay any commissions or
fees due to WHCA Partners in connection with this Agreement or
the transactions contemplated by this Agreement.
4.16 Insurance. Chem-Con and its Subsidiaries have in full force
and effect policies of insurance of the types, including
insurance policies under which Chem-Con, its Subsidiaries and
Chem-Con's or its Subsidiaries' officers, directors and
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Affiliates or any of them, in such capacity, is named insured,
and in the amounts and with insurance carriers as set forth in
Schedule "L" attached hereto, and will continue all of such
insurance in full force and effect up to and until the
Closing. The amounts and types of such insurance policies and
the insurance carriers issuing such policies fully meet Chem-
Con's and its Subsidiaries' contractual, legal or regulatory
commitments and are fully adequate to insure against risks to
which Chem-Con or its Subsidiaries is normally exposed in the
operation of its businesses and as required by Governmental
Authority and the Environmental Laws.
4.17 Completeness of Documents -- Chem-Con and CCC. The copies of
the Articles of Incorporation and Bylaws of Chem-Con and CCC,
and of all leases, instruments, agreements or other documents
(including all Schedules and documents delivered pursuant to
this Agreement) which have been or will be delivered to Perma-
Fix pursuant to the terms of this Agreement or in connection
with the transactions contemplated hereby, are, or if not now
delivered, will when delivered, be true, complete and correct.
4.18 Completeness of Documents -- Xxxxxxxx Trusts. The copies of
the organizational documents of the Xxxxxxxx Trusts, which
have been or will be delivered to Perma-Fix pursuant to the
terms of this Agreement or in connection with the transactions
contemplated hereby, are, or if not now delivered, will when
delivered, be true, complete and correct.
4.19 Disposition of Assets. Since September 30, 1998, neither
Chem-Con nor its Subsidiaries have made any sale or other
disposition of any of their properties or assets or
surrendered any of their rights with respect thereto, or made
any additions to their properties or assets, or entered into
any agreements, or entered into any other transaction, except
in each instance in the ordinary course of business or as set
forth in Schedule "M" attached hereto, and no such sale,
disposition, surrender, addition, agreement or transaction set
forth in such Schedule "M" has any material adverse effect
upon the results of operations or financial condition of Chem-
Con or its Subsidiaries or Chem-Con's or its Subsidiaries'
ability to conduct Chem-Con's and its Subsidiaries' business
as currently conducted.
4.20 Obligations to Employees. All obligations of Chem-Con and/or
any of its Affiliates, whether arising by operation of law,
contract, agreement, or otherwise, for payments to trusts or
other funds or to any governmental agency or to any employees,
directors, officers, agents, or any other individual (or any
of their respective heirs, legatees, beneficiaries, or legal
representatives) with respect to profit-sharing, pension or
retirement benefits, or any other employee benefit of any kind
whatsoever relating to Chem-Con, its Subsidiaries or any of
their employees, have been paid. All legally enforceable
obligations of Chem-Con or its Subsidiaries, whether arising
by operation of law, contract, agreement, or otherwise, for
bonuses or other forms of compensation or benefits which are,
or may become, payable to its employees, directors, officers,
agents, or any other individual (or their respective heirs,
legatees, beneficiaries or legal representative) relating to
Chem-Con or its Subsidiaries or any of the employees of Chem-
Con or its Subsidiaries with respect to periods ending on or
before the Closing have been paid, or adequate accruals for
payment thereof are reflected on the Audited Financial
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Statements. Neither Chem-Con nor any of its Affiliates has
any accumulated funding deficiencies, as such term is defined
in the Employee Retirement Income Security Act of 1974
("ERISA") and in the Code with respect to any employee benefit
plan as defined in ERISA maintained or established for
employees of Chem-Con or its Subsidiaries. Neither Chem-Con
nor its Subsidiaries has incurred any liability to the Pension
Benefit Guaranty Corporation ("PBGC") other than for the
payment of insurance premiums all of which have been paid when
due, the IRS or the Department of Labor ("DOL") with respect
to any such employee benefit plan that affects, or might
affect Chem-Con, and does not have any withdrawal liability
with respect to any multiemployer pension plan ("Multiemployer
Plan") which is subject to the Multiemployer Pension Plan
Amendments Act of 1980. The consummation of this Agreement
will not result in either a complete or partial withdrawal
from any of the Multiemployer Plans. All of the employee
benefit plans of which Chem-Con or any Affiliate of Chem-Con
is the plan sponsor relating to Chem-Con and its Subsidiaries
or any of their employees have been amended as, when and to
the extent necessary to comply with and qualify under the
applicable provisions of the Code; and all such employee
benefit plans have been administered in accordance with the
applicable provisions of the Code and ERISA. Except as
indicated on Schedule "N", any employee benefit plans relating
to Chem-Con or its Subsidiaries or any of their employees
which are pension benefit plans have received, or have applied
for and expect to receive, determination letters from the IRS
to the effect that such plans are qualified and exempt from
federal income taxes under Sections 401(a) and 501(a), respectively,
of the Code, and, no amendments have been made to any such
employee benefit plans other than those covered by such
determination letters or applications for such determination
letters with respect to such amendments which have been timely
filed with the IRS. No determination letter received with
respect to any employee benefit plan relating to Chem-Con or
its Subsidiaries or any of their employees has been revoked
nor has revocation been threatened. Each of the employee
benefit plans have been administered at all times and in all
respects in accordance with their respective terms. There are
no pending investigations by any Governmental Authority
involving any employee benefit plans relating to Chem-Con or
its Subsidiaries or any of their employees, no deficiency or
termination proceedings involving such employee benefit plans,
and no threatened or pending claims (except for claims for
benefits payable in the normal operation of the employee
benefit plans), suits or proceedings against any such
employee benefit plan or asserting any rights or claims to
benefits under any such employee benefit plan nor are there
any facts which could give rise to any liability in the event
of any such investigation, claim, suit or proceeding. Neither
the employee benefit plans nor any trusts created thereunder
relating to Chem-Con or its Subsidiaries or to any of their
employees, nor any trustee, administrator or other fiduciary
thereof, has engaged in a "prohibited transaction" (as such
term is defined in Section 4975 of the Code or Section 406 of the
ERISA); and has not experienced any reportable event within the
meaning of ERISA or other event or condition which presents a
material risk of termination of any such employee benefit plan
by the PBGC, has had any tax imposed upon it by the IRS for
any alleged violation under Section 4975 of the Code, or has engaged
in any transaction which might subject Chem-Con or its
Subsidiaries or any such employee benefit plan to any
liability for such tax. The terms of any such employee
-24-
benefit plans comply with ERISA and the Code in all respects,
and, any and all reporting and disclosure requirements of
ERISA or the Code and the DOL with respect to any such
employee benefit plan have been timely met. The information
supplied to the actuary by Chem-Con or its Subsidiaries, the
Sullivans or the Xxxxxxxx Trusts for use in preparing those
reports was complete and accurate and none of Chem-Con, the
Sullivans nor the Xxxxxxxx Trusts has reason to believe that
the conclusions expressed in such reports are incorrect. In
the event of termination of any employee benefit plan of Chem-
Con or any of its Affiliates relating to Chem-Con or its
Subsidiaries or to any of their employees, there will be no
liability of Chem-Con or its Subsidiaries or the plan with
respect to the providing of benefits accrued thereunder
subject to future variations in levels of compensation
assuming continued investment returns at rates actuarially
predicted. Further, if termination (whether complete or
partial) of any plan has occurred, then, all liabilities with
respect thereto have been satisfied in full and no present
liability exists with respect to any such prior termination.
Schedule "N" also includes a list of any and all pension or
benefit obligations of Chem-Con and/or its Affiliates which
have not been fully funded.
4.21 Condition of Plant, Machinery and Equipment. Except as set
forth on Schedule "O", all of the items of the property, plant
and equipment owned, operated or leased by Chem-Con or its
Subsidiaries are, in all material respects, in good condition
and repair, reasonable wear and tear excepted, and Chem-Con
and its Subsidiaries agree to maintain such items in good
operating condition until the Closing. Casualty losses to
such property, plant and equipment are covered by insurance
with normal industry deductibles being applicable.
4.22 Books of Account. Chem-Con has maintained its books of
account in accordance with GAAP, applied on a consistent basis
with prior periods.
4.23 Stock Redemptions. There are no shares of Chem-Con Common
Stock which are subject to redemption or purchase in lieu of
redemption, which prior to September 30, 1998, were not paid
for in full. From September 30, 1998, through the date of
this Agreement, Chem-Con has not purchased or redeemed or
entered into any agreement to purchase or redeem any Chem-Con
Common Stock.
4.24 Minute Books. Chem-Con and its Subsidiaries have maintained
their corporate minute books and all such books are current.
4.25 Indebtedness of Shareholders, etc. Except as set forth on
Schedule "P", none of the shareholders, Affiliates, officers,
directors or employees of Chem-Con is (i) indebted to Chem-Con
or its Subsidiaries, and neither Chem-Con nor its Subsidiaries
is indebted to their Affiliates, shareholders or any of their
officers, directors or employees, (ii) a party to or has any
interest in a material contract, agreement or lease with Chem-
Con or its Subsidiaries or in which Chem-Con or its
Subsidiaries is a party to or bound by, or (iii) a customer or
supplier of Chem-Con or its Subsidiaries, which during any one
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of the preceding three (3) years supplied to or purchased from
Chem-Con or its Subsidiaries a amount of property or services
exceeding Ten Thousand Dollars ($10,000.00) in any one (1)
year.
4.26 Business Prospects. Since September 30, 1998, there has not
occurred any event or other occurrence which might have a
material adverse effect on the business or business prospects
of Chem-Con or its Subsidiaries.
4.27 Bank Accounts; Powers of Attorney. Schedule "Q" attached
hereto sets forth each bank account and borrowing resolution
authorizing officers or agents of Chem-Con or its Subsidiaries
to borrow money and lists the persons authorized to transact
business on behalf of Chem-Con or its Subsidiaries with
respect to each such account or borrowing resolution.
Schedule "Q" also lists all powers of attorney granted by
Chem-Con or its Subsidiaries to any other person.
4.28 Sensitive Payments. Neither Chem-Con nor its Subsidiaries has
made or received, and to their best knowledge, after
reasonable due inquiry, none of their officers, directors,
employees, agents, shareholders or other representative of
Chem-Con or its Subsidiaries or any person acting on behalf of
Chem-Con or its Subsidiaries, has made or received, directly
or indirectly, any bribes, kickbacks, illegal political
contributions with corporate funds, improper payments from
corporate funds that are falsely recorded on the books and
records of Chem-Con, payments to governmental officials in
their individual capacities or illegal payments from corporate
funds to obtain or retain business.
ARTICLE 5
ADDITIONAL REPRESENTATIONS, WARRANTIES
AND COVENANTS OF THE SULLIVANS AND THE XXXXXXXX TRUSTS
______________________________________________________
The Sullivans and the Xxxxxxxx Trusts, jointly and severally,
provide to Perma-Fix the following additional representations,
warranties and covenants:
5.1 Purchase for Investment. The ALS Trust is acquiring the
Perma-Fix Common Stock to be issued by Perma-Fix pursuant to
the terms of this Agreement for the ALS Trust's own account,
to hold for investment, with no present intention of dividing
the ALS Trust's participation with others or reselling or
otherwise participating, directly or indirectly, in a
distribution thereof, and not with a view to or for sale in
connection with any distribution thereof, except pursuant to
a registration statement under the Securities Act and any
applicable state securities laws, or a transaction exempt from
registration thereunder, and shall not make any sale, transfer
or other disposition of such shares of Perma-Fix Common Stock
in violation of any applicable state securities laws,
including in each instance any applicable rules and
regulations promulgated thereunder, or in violation of the
Securities Act and the rules and regulations promulgated
thereunder by the SEC. The Sullivans and the Xxxxxxxx Trusts
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further represent and warrant that the ALS Trust is not
acquiring the shares of Perma-Fix Common Stock issuable under
this Agreement with a view to exercising control over
Perma-Fix, or merging or otherwise combining Perma-Fix with
any other person.
5.2 No Registration of Perma-Fix Common Stock. The Sullivans and
the Xxxxxxxx Trusts have been advised that the shares of
Perma-Fix Common Stock issued or issuable hereunder are not
being registered under any state securities laws on the ground
that the issuance thereof is exempt from registration, and are
not being registered under the Securities Act on the ground
that this transaction is exempt from registration under
Section 4(2) of the Securities Act and/or Regulation D
promulgated under the Securities Act ("Regulation D") and that
reliance by Perma-Fix on such exemptions is predicated in part
on the Sullivans' and the Sullivans Trusts' representations as
set forth herein.
5.3 Resale of Shares. The Sullivans and the Xxxxxxxx Trusts agree
that Perma-Fix may refuse to permit the sale, transfer or
disposition of the shares of Perma-Fix Common Stock to be
issued to the ALS Trust under this Agreement unless there is
in effect a registration statement under the Securities Act
and any applicable state securities law covering such transfer
or the Sullivans and/or the Xxxxxxxx Trusts furnish an opinion
of counsel or other evidence, reasonably satisfactory to
counsel for Perma-Fix, to the effect that such registration is
not required.
5.4 Legend. The Sullivans and the Xxxxxxxx Trusts understand and
agree that stop transfer instructions will be given to Perma-
Fix's transfer agent and that there will be placed on the
certificate or certificates representing the Perma-Fix Common
Stock issuable under this Agreement, any substitutions
therefor and any certificates for additional shares which
might be distributed with respect to such Perma-Fix Common
Stock, a legend stating in substance:
"The shares represented by this certificate have
been acquired for investment and have not been
registered under the Securities Act of 1933, as
amended (the "Securities Act") in reliance on an
exemption contained in Section 4(2) of the Securities
Act and/or Regulation D promulgated under the
Securities Act. These shares may only be
transferred pursuant to an effective registration
statement under the Securities Act and any
applicable state securities laws unless there is
furnished to Perma-Fix an opinion of counsel or
other evidence satisfactory to Perma-Fix counsel,
to the effect that such registration is not
required. In addition, the shares represented by
this certificate may only be transferred in
accordance with the terms of a Stock Purchase
Agreement among Perma-Fix Environmental Services,
Inc. ("Perma-Fix"), Chemical Conservation
Corporation, Chemical Conservation of Georgia,
Inc., The Xxxxxx X. Xxxxxxxx Living Trust, dated
September 6, 1978, The Xxx X. Xxxxxxxx Living
Trust, dated September 6, 1978, Xxxxxx X.
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Xxxxxxxx and Xxx X. Xxxxxxxx, a copy of which
agreement may be inspected by the holder of this
certificate at the principal offices of Perma-
Fix, or furnished by Perma-Fix to the holder of
this certificate upon written request, without
charge."
5.5 Shares to be held Indefinitely. The Sullivans and the
Xxxxxxxx Trusts understand that under the Securities Act, the
shares of Perma-Fix Common Stock issued or to be issued under
this Agreement must be held indefinitely unless they are
subsequently registered under the Securities Act or unless an
exemption from such registration is available with respect to
any proposed transfer of disposition of the shares of
Perma-Fix Common Stock issued or to be issued under this
Agreement.
5.6 Periodic Reports-No Registration. The Sullivans and the
Xxxxxxxx Trusts understand that Perma-Fix is required to file
periodic reports with the SEC and that certain sales of the
shares of Perma-Fix Common Stock issued or to be issued under
this Agreement may be exempt from registration under the
Securities Act by virtue of Rule 144 as promulgated by the SEC
under the Securities Act, provided that such sales are made in
accordance with all of the terms and conditions of Rule 144,
including compliance with the required one (1) year holding
period. The Sullivans and the Xxxxxxxx Trusts further
understand that if Rule 144 is not available for sales of the
shares of Perma-Fix Common Stock issued or to be issued under
this Agreement, such shares may not be sold without
registration under the Securities Act or compliance with some
other exemption from such registration and that Perma-Fix is
under no obligation to register the shares of Perma-Fix Common
Stock issued or to be issued under this Agreement or take any
other action necessary in order to make compliance with an
exemption from registration available.
5.7 Public Solicitation. The Sullivans and the Xxxxxxxx Trusts
have received no public solicitation or advertisement
concerning an offer to sell the shares of Perma-Fix Common
Stock issued or to be issued under this Agreement.
5.8 SEC Filings. The Sullivans and the Xxxxxxxx Trusts have
received and had an opportunity to review copies of the
Perma-Fix SEC Filings (as defined in Section 7.4 hereof).
5.9 Total Assets of the ALS Trust; Knowledge of Purchaser's
Representatives. The ALS Trust has total assets in excess of
five million dollars ($5,000,000.00). Further, the ALS Trust
was not formed for the specific purpose of acquiring the
shares of Perma-Fix Common Stock issued or to be issued
hereunder. In addition, the ALS Trust has previously
appointed TPS as its purchaser's representative (as defined
under Rule 506 of Regulation D) and that the acquisition of
the Perma-Fix Common Stock pursuant to the terms of this
Agreement is directed by such purchaser's representative, TPS
is a sophisticated person who has such knowledge and
experience in financial and business matters that he is
individually capable of evaluating the merits and risks of the
purchase of the shares of Perma-Fix Common Stock under this
Agreement.
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5.10 Restrictions on Certain Actions. For a period of two (2)
years from the date of Closing, neither of the Xxxxxxxx Trusts
nor any of the Sullivans shall, without the prior consent of
the Board of Directors of Perma-Fix (specifically expressed in
a resolution adopted by a majority of the Board of Directors
of Perma-Fix who are not employees, representatives or agents
of the Xxxxxxxx Trusts and/or the Sullivans or any of their
Affiliates):
5.10.1 Prohibition Against Acquisition. Except for the shares
of Perma-Fix Common Stock which the Xxxxxxxx Trusts
acquire under this Agreement or through stock splits,
stock dividends or stock options granted by Perma-Fix
to TPS, acquire, offer or propose to acquire, or
permit any Affiliate of the Xxxxxxxx Trusts or any of
the Sullivans to acquire, directly or indirectly, or in
conjunction with or through any other person, firm,
corporation, entity, partnership, company or
association, by purchase or otherwise, beneficial
ownership of any shares of Perma-Fix Common Stock or
any other voting securities of Perma-Fix or any rights
or option to acquire voting securities of Perma-Fix or
any securities convertible into any voting securities
of Perma-Fix (collectively, "Perma-Fix Voting
Securities") except as otherwise agreed to in writing
by the President of Perma-Fix or approved by the Board
of Directors (or a committee of the Board of Directors)
of Perma-Fix. Notwithstanding anything in this Section
5.10.1 to the contrary, Xxxxxxx X. Xxxxxxxx and Xxxxxxx
Xxxxxxxx, sons of TPS and ALS, may acquire shares of
Perma-Fix Common Stock;
5.10.2 Prohibition Against Solicitation. Directly or
indirectly, or through or in conjunction with any other
person, firm, corporation, entity, partnership, company
or association, solicit, or encourage any solicitation
of, or permit any Affiliate of the Sullivans or any of
the Xxxxxxxx Trusts to solicit, or encourage any
solicitation of, (i) proxies with respect to Perma-Fix
Voting Securities under any circumstances, or (ii)
tender or exchange offers for Perma-Fix Voting
Securities under any circumstances or (iii) any
election contest relating to the election of directors
of Perma-Fix; or
5.10.3 Prohibition Against Control. Take any action alone or
in concert with any other person, firm, corporation,
partnership, company or association to acquire or
affect the control of Perma-Fix or to influence the
management, board of directors or policies of Perma-
Fix, or, directly or indirectly, or encourage the
formation of, any group within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934, as
amended, seeking to obtain or take control of Perma-Fix
or to influence the management, board of directors
policies of Perma-Fix, except it is recognized that the
Xxxxxxxx Trusts have the right to select one (1)
nominee to the Board of Directors of Perma-Fix under
certain limited conditions.
5.11 Attendance. During the period that any of the Sullivans or
Xxxxxxxx Trusts is the beneficial owner of any shares of
Perma-Fix Common Stock acquired under this Agreement and the
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Chem-Met Agreement, the Sullivans and the Xxxxxxxx Trusts
shall, jointly and severally, cause all such shares of Perma-
Fix Common Stock which they beneficially own to be duly
represented, in person or by proxy, at each meeting of
stockholders of Perma-Fix.
5.12 Confidential Information; Non-Compete, and Non-Solicitation.
In order to induce Perma-Fix to enter into this Agreement and
the Chem-Met Agreement and as part of the sale of the goodwill
of Chem-Con and Chem-Met, TPS shall:
5.12.1 Confidentiality. For twenty-four (24) months following
the Closing Date, TPS shall hold in confidence and
shall not disclose, directly or indirectly, any and all
information, knowledge or data relating to all sales
and pricing information, customer lists, records,
memorandums, reports or other representations whether
in printed or machine readable form, technology,
proprietary process or intellectual property
("Confidential Information") relating to Chemical
Florida, Chemical Georgia, Chem-Met and/or any of their
subsidiaries or Affiliates, and their respective
businesses, which shall have been obtained by TPS prior
to the date of this Agreement as an executive officer
of Chemical Florida, Chemical Georgia or Chem-Met or in
any other capacity.
Notwithstanding the provisions of Section 5.12.1
hereof, TPS shall not be held liable for disclosure of
information which (i) was in the public domain or is
generally available to the public at the time of its
disclosure by TPS through means unrelated to TPS'
disclosure; or (ii) is disclosed with the written
approval of the Perma-Fix; or (iii) is required to be
disclosed by law.
5.12.2 Covenant Not to Compete. TPS shall not, for a period
of twelve (12) months after the Closing Date, in the
United States, directly or indirectly, by or for
himself, or as an agent, representative or employee of
another, or through others as their agent,
representative or employee or by and through any joint
venture, partnership, corporation, limited liability
company or other business entity in which TPS has a
direct or indirect interest, own, manage, operate,
control, or be engaged in any business that engages
directly or indirectly (i) in the treatment, storage,
recycling, disposal and/or transportation of hazardous
and/or non-hazardous, industrial and/or commercial
waste or (ii) in any other business that competes with
Chemical Florida, Chemical Georgia or Chem-Met or any
of their subsidiaries or Affiliates.
5.12.3 Agreement Not to Solicit Employees and Customers. TPS
shall not, for a period of twelve (12) months after the
Closing Date, directly or indirectly, by or for
himself, or as an agent, representative or employee of
another, or through others as their agent,
representative or employee, or by and through any joint
venture, partnership, corporation, limited liability
company or other business entity in which he has a
direct or indirect interest:
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5.12.3.1 use or disclose for the benefit of any
person or entity, other than Perma-Fix or
any of its subsidiaries, any customer
lists, or identify any of the customers
of Chem-Con, Chem-Met or any of their
subsidiaries or Affiliates; or,
5.12.3.2 solicit, induce or in any manner attempt
to solicit or induce, any customer or
supplier of Chem-Con, Chem-Met or any of
their subsidiaries or affiliates, to
cease being a supplier or customer of any
of Chem-Con, Chem-Met or any of their
subsidiaries or Affiliates; or
5.12.3.3 solicit or induce, or in any manner
attempt to solicit or induce, any person
employed by, or as an agent of, Chem-Con,
Chem-Met or any of their subsidiaries or
affiliates, to terminate his or her
employment or agency with Chem-Con,
Chem-Met or any of their subsidiaries or
Affiliates.
5.13 Specific Enforcement. The parties hereto recognize and agree
that, in the event any of the Sullivans or any of the Xxxxxxxx
Trusts breach or threaten to breach any of the provisions of
this Article 5, immediate irreparable injury would be caused
to Perma-Fix, for which there is no adequate remedy at law.
It is accordingly agreed that in the event of a failure by any
of the Sullivans or Xxxxxxxx Trusts to perform their
obligations under this Article 5, Perma-Fix shall be entitled
to specific performance through injunctive relief to prevent
breaches of any provision of this Article 5 and to
specifically enforce any provision of Article 5 and the terms
and provisions thereof in any action instituted in any court
of the United States or any state thereof having subject
matter jurisdiction, in addition to any other remedy to which
Perma-Fix may be entitled, at law or in equity.
ARTICLE 6
NO SOLICITATION OF TRANSACTIONS
_______________________________
6.1 No Solicitation of Transactions. Chem-Con, the Sullivans and
the Xxxxxxxx Trusts shall not, and will not allow any of their
employees, agents, representatives or Affiliates (including,
but not limited to any of Chem-Con's and/or Chem-Met's
officers, directors, employees, agents, representatives or
Affiliates), to (i) negotiate, sell, offer to sell or solicit
offers to purchase any of the assets of Chem-Con and/or Chem-
Met (other than sales of products in the ordinary course of
their businesses); (ii) negotiate, sell, offer to sell or
solicit offers to purchase or exchange, any capital stock of
Chem-Con, Chem-Met or any Subsidiary of Chem-Con or Chem-Met
to, from or with any other party (other than pursuant to the
terms of this Agreement and the Chem-Met Agreement) or enter
into any merger, consolidation, liquidation or similar
transaction involving, directly or indirectly, Chem-Con,
Chem-Met or any Subsidiary of Chem-Con or Chem-Met (other than
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pursuant to the terms of this Agreement and the Chem-Met
Agreement) and none of the Sullivans nor the Xxxxxxxx Trusts,
Chem-Con, Chem-Met nor any of their Affiliates will negotiate
with or provide financial, technical or other information to
any person (other than pursuant to the terms of this Agreement
and the Chem-Met Agreement) in connection with any such
proposed purchase or transaction; or, (iii) negotiate, sell,
offer to sell or solicit any offers to purchase any
outstanding shares of Chem-Con's and Chem-Met's capital stock
or any other securities of Chem-Con and Chem-Met (other than
pursuant to the terms of this Agreement and the Chem-Met
Agreement).
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF PERMA-FIX
___________________________________________
Perma-Fix represents and warrants to the ALS Trust as
follows:
7.1 Organization, etc. Perma-Fix is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware. Perma-Fix has the corporate power to own
its property and to carry on its business as now being
conducted; Perma-Fix has the corporate power and authority to
execute and deliver this Agreement and, after obtaining
approvals from its lender, the Boston Stock Exchange ("BSE")
and the National Association of Securities Dealers, Inc.
("NASDAQ"), to issue the Perma-Fix Common Stock to be
delivered pursuant to Sections 3.1 and 3.2 hereof and
consummate the transactions contemplated hereby and the Chem-
Met Agreement, and to perform the transactions contemplated by
this Agreement.
7.2 Authorization, Execution and Delivery of Agreement. The
execution, delivery and performance of this Agreement by
Perma-Fix have been duly and validly authorized and approved
by the Board of Directors of Perma-Fix. This Agreement
constitutes the valid and binding agreement of Perma-Fix,
enforceable in accordance with its terms, subject to
bankruptcy, insolvency and other laws of similar import, and
Perma-Fix, has taken, or will use reasonable efforts to take
prior to the Closing, all other action required by law on the
part of Perma-Fix, and Perma-Fix's Certificate or Articles of
Incorporation and bylaws or otherwise to effect the
transactions contemplated by this Agreement.
7.3 Capital Stock of Perma-Fix. As of the date of this Agreement,
the authorized capital stock of Perma-Fix consists of (i)
5,287 shares of Preferred Stock, $.001 par value, of which
9,850 shares are outstanding as of the date hereof; and (ii)
50,000,000 shares of Perma-Fix Common Stock, of which
18,711,215 shares are issued and outstanding as of the date
hereof and 12,330,171 shares are reserved for issuance under
Perma-Fix's Stock Option Plans (such Plans being hereinafter
referred to as the "Perma-Fix Plans") and warrants or rights
to subscribe for or purchase from Perma-Fix any Perma-Fix
Common Stock.
-32-
7.4 SEC Filings.
7.4.1 Perma-Fix has previously furnished Chem-Con, the
Sullivans and the Xxxxxxxx Trusts true and complete
copies of the following documents which have been filed
by Perma-Fix with the SEC pursuant to Sections 13(a), 14(a),
(b) or (c) or 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") (such documents are
hereinafter collectively called the "Perma-Fix SEC
Filings"):
7.4.1.1 its Annual Report on Form 10-K for the year
ended December 31, 1998 (the "Form 10-K");
7.4.1.2 Form 8-K, Date of Report (date of earliest
event reported); April 8, 1999.
7.4.1.3 Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999 (the "Form 10-Q").
The audited and unaudited financial statements
contained in the Perma-Fix SEC Filings, as amended,
present fairly the consolidated financial condition and
results of operations and changes in shareholders'
equity and changes in financial position of Perma-Fix
as of the dates and for the periods indicated, except
as may otherwise be stated in such financial
statements. For purposes of this Agreement, all
financial statements of Perma-Fix shall be deemed to
include any notes to such financial statements. The
financial statements described in this Section 7.4 are
hereinafter referred to as the "Perma-Fix Financial
Statements."
7.4.2 Material Adverse Change. Since December 31, 1998,
there has not been, occurred or arisen, which has not
been publicly disclosed to the shareholders of Perma-
Fix or contained in the Perma-Fix SEC Filings, as
amended:
7.4.2.1 any material adverse change in the
consolidated financial condition or in the
operations of the business of Perma-Fix and
its subsidiaries, taken as a whole, from that
shown on the Perma-Fix Financial Statements;
or
7.4.2.2 any event, condition or state of facts (other
than the general state of the national economy
and proposed federal legislation or
regulation) of any character which, to the
knowledge of Perma-Fix, materially and
adversely affects the results of operations or
business or financial condition or properties
of Perma-Fix and its subsidiaries, taken as a
whole, except as otherwise disclosed in this
Section 7.4.
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7.5 Status of Perma-Fix Common Stock. The shares of Perma-Fix
Common Stock to be delivered pursuant to Article 3 hereof,
when so issued pursuant to this Agreement, will be duly and
validly authorized and issued, fully paid and nonassessable.
7.6 No Breach of Statute or Contract, Governmental Authorizations.
Subject to the National Association of Securities Dealers
("NASD"), the BSE and Perma-Fix's lender, neither the
execution and delivery of this Agreement by Perma-Fix, nor
compliance with the terms and provisions of this Agreement by
Perma-Fix will violate (i) any law, statute, rule or
regulation of any governmental authority, domestic or foreign,
or will at the Closing Date conflict with or result in a
breach of any of the terms, conditions or provisions of any
judgment, order, injunction, decree or ruling of any court or
governmental agency or authority to which Perma-Fix is
subject, which in the aggregate would have a material adverse
effect on Perma-Fix and its subsidiaries, taken as a whole, or
(ii) any agreement or instrument to which it is a party or by
which it is bound or constitute a default thereunder which
would have a material adverse effect on Perma-Fix and its
subsidiaries, taken as a whole, or (iii) result in the
creation of any Lien upon any property or assets of Perma-Fix
or cause any acceleration of maturity of any obligation or
loan which would have a material adverse effect on Perma-Fix
and its subsidiaries, taken as a whole, or (iv) give to others
any interest or rights, including rights of termination or
cancellation, in or with respect to any of the material
properties, assets, agreements, contracts or business of
Perma-Fix which would have a material adverse effect on Perma-
Fix and its subsidiaries, taken as a whole.
7.7 No Litigation or Adverse Events. Except as set forth in the
SEC Filings, copies of which have been or will be delivered to
Chem-Con, there is no suit, action, or legal, administrative,
arbitration or other proceeding or governmental investigation
pending, or to the best of the knowledge of Perma-Fix
threatened, which could materially and adversely affect the
financial condition and results of operations of Perma-Fix and
its Subsidiaries, taken as a whole.
7.8 Broker's or Finder's Fees. No agent, broker, person or firm
acting on behalf of Perma-Fix, or under its authority, is or
will be entitled to any commission or broker's or finder's fee
from any of the parties hereto in connection with any of the
transactions contemplated herein.
ARTICLE 8
COVENANTS OF CONDUCT AND TRANSACTIONS
PRIOR TO AND AFTER THE CLOSING
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8.1 Investigations; Operation of Business of Chem-Con. Chem-Con,
the Sullivans and the Xxxxxxxx Trusts agree, jointly and
severally, between the date of this Agreement and the Closing:
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8.1.1 Access to Premises and Books. That Perma-Fix and its
representatives shall have full access to all their
premises and books and records relating to Chem-Con,
and shall cause Chem-Con to provide to Perma-Fix and
its representatives full access to their premises and
books and records, and to cause Chem-Con's officers to
furnish Perma-Fix with such financial and operating
data and other information with respect to the business
and properties of Chem-Con, as Perma-Fix shall from
time to time request; provided, however, that any such
investigation shall not affect any of the
representations, warranties or covenants of Chem-Con,
the Sullivans and/or the Xxxxxxxx Trusts hereunder;
and, provided further, that any such investigation
shall be conducted in such manner as not to interfere
unreasonably with the operation of the business of
Chem-Con. In the event of termination of this
Agreement, Perma-Fix will return to Chem-Con any and
all financial statements, agreements, documents,
memoranda or other repositories of information relating
to Chem-Con that Perma-Fix has obtained in connection
with its review, and Perma-Fix agrees that any written
information relating to Chem-Con and Chem-Con's
financial condition, business, operations and prospects
are strictly confidential and shall not be voluntarily
disclosed to any third party or used by Perma-Fix for
its benefit or the benefit of any other person, except
for such information or documents (i) available
generally to the public, (ii) in the possession of
Perma-Fix prior to its receipt under this Agreement,
(iii) obtained by Perma-Fix from a third party who has
an independent right to such information or documents,
or (iv) as otherwise required by law to be disclosed;
provided, however, that any confidentiality
requirements contained in this Section shall terminate
and be null and void twelve (12) months from the date
of this Agreement.
8.1.2 Business Organization of Chem-Con. To cause Chem-Con
and its Subsidiaries, to the extent required for
continued operation of Chem-Con's and its Subsidiaries'
business without impairment, to use Chem-Con's best
efforts to preserve substantially intact the business
organization of Chem-Con and its Subsidiaries to keep
available the services of the present officers and
employees of Chem-Con and its Subsidiaries, and to
preserve the present relationships of Chem-Con and its
Subsidiaries with persons having significant business
relations therewith such as suppliers, customers,
brokers, agents or otherwise.
8.1.3 Ordinary Course of Business. To cause Chem-Con to
conduct Chem-Con's and its Subsidiaries' businesses
only in the ordinary course and, by way of
amplification and not limitation, Chem-Con and its
Subsidiaries will not without the prior written consent
of Perma-Fix (except as otherwise specifically provided
in this Agreement):
8.1.3.1 issue any capital stock or make any changes to
its authorized, issued or outstanding capital
stock, grant any stock options or rights to
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acquire shares of any of its capital stock or
any security convertible into any class of its
capital stock or agree to do any of the
foregoing; or
8.1.3.2 declare, set aside, or pay any dividend or
distribution with respect to any of its
capital stock or any other securities
convertible into any class of capital stock;
or
8.1.3.3 directly or indirectly redeem, purchase or
otherwise acquire any of its capital stock or
enter into any agreement to purchase or redeem
any of the Chem-Con Common Stock; or
8.1.3.4 effect a split or reclassification of any of
its capital stock convertible into any class
of capital stock, purchase, redeem, retire or
otherwise acquire any shares of any class of
its capital stock or any security convertible
into any class of its capital stock or agree
to do any of the foregoing; or
8.1.3.5 change its charter or bylaws; or
8.1.3.6 except consistent with past practices, grant
any increase in the compensation payable or to
become payable by it to its officers or
employees or any increase, regardless of
amount, in any bonus, insurance, pension or
other benefit plan, program, payment or
arrangement made to, for, or with any officers
or employees; or
8.1.3.7 engage in any transaction not in the ordinary
course of business; or
8.1.3.8 borrow or agree to borrow any funds or assume,
endorse, guarantee or agree to guarantee or
otherwise as an accommodation become liable or
responsible for obligations of any other
individual, firm or corporation; or
8.1.3.9 waive any rights of substantial value; or
8.1.3.10 enter into an agreement, contract or
commitment which, if entered into prior
to the date of this Agreement, would be
required to be listed in a Schedule
pursuant to the terms of this Agreement
and is in excess of Twenty-Five Thousand
Dollars ($25,000.00); or
8.1.3.11 acquire any Real Property; or
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8.1.3.12 enter into any agreement with Affiliates
or trustees of the Xxxxxxxx Trusts or
Affiliates, officers or directors of
Chem-Con; or
8.1.3.13 adopt, enter into, or amend materially
any employment contract or any bonus,
stock option, profit-sharing, pension,
retirement, incentive, or similar
employee benefit program; or
8.1.3.14 pay or incur any obligation or liability,
absolute or contingent, other than
liabilities incurred in the ordinary and
usual course of its business; or
8.1.3.15 mortgage, pledge, or subject to lien or
other encumbrance any of its properties
or assets; or
8.1.3.16 except for transactions in the ordinary
and usual course of its business, sell or
transfer any of its properties or assets
or cancel, release or assign any
indebtedness owed to it or any claims
held by it; or
8.1.3.17 make any investment of a capital nature
in excess of Twenty-Five Thousand Dollars
($25,000.00) for any one item or group of
similar items, contributions to capital,
property transfers, or otherwise, or by
the purchase of any property or assets of
any other individual, firm, or
corporation; or
8.1.3.18 enter into any other agreement not in the
ordinary and usual course of business; or
8.1.3.19 merge or consolidate with any other
corporation, acquire any of its assets or
capital stock, solicit any offers for any
of its assets or capital stock, or,
except in the ordinary course of
business, acquire any assets of any other
person, corporation, or other business
organization, or enter into any
discussions with any person concerning,
or agree to do, any of the foregoing; or
8.1.3.20 enter into any transaction or take any
action which would, if effected prior to
the Closing, constitute a breach of any
of the representations, warranties or
covenants contained in this Agreement.
8.1.4 Sale of Assets. Without the prior written consent of
Perma-Fix, neither Chem-Con nor any of its Subsidiaries
will undertake or enter into any sale, disposition,
surrender, acquisition, agreement or transaction
relating to any of its assets except in the ordinary
course of business or as contemplated by this
Agreement.
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8.2 No Selling of Shares or Granting of Options. Prior to the
Closing, neither the ALS Trust, Chem-Con nor CCC shall sell,
transfer, assign or otherwise dispose of any of the Shares or
the shares of capital stock of CCC or grant any options,
warrants, or other rights to purchase or otherwise acquire any
Shares or other shares of the capital stock of Chem-Con or
CCC, or issue any securities convertible into any shares of
the capital stock of Chem-Con or CCC.
8.3 Consents. Chem-Con, the Sullivans, the Xxxxxxxx Trusts and
Perma-Fix shall each use its best efforts to obtain the
consent or approval of each person or Governmental Authority
whose consent or approval shall be required in order to permit
Chem-Con, the Sullivans, the Xxxxxxxx Trusts or Perma-Fix, as
the case may be, to consummate the transactions contemplated
by this Agreement.
8.4 Governmental Reports. Between the date of this Agreement and
the Closing, the Sullivans, the Xxxxxxxx Trusts and Chem-Con
shall furnish, make available to Perma-Fix any and all
reports, not heretofore delivered to Perma-Fix under this
Agreement or which are filed subsequent to the date of this
Agreement, to any state, federal or local government, agency
or department, including, but not limited to, the SEC, the
IRS, the EPA, the FTC and the PBGC.
8.5 Conduct of Business. Prior to the Closing, Chem-Con shall
conduct its business in the ordinary and usual course as
heretofore conducted and to use its best efforts (i) to
preserve its business and business organization intact; (ii)
to keep available to Chem-Con the services of the present
officers and employees of Chem-Con; (iii) to preserve the
goodwill of customers and others having business relations
with Chem-Con; (iv) to maintain its properties in customary
repair, working order and condition (reasonable wear and tear
excepted); (v) to comply with all Laws applicable to it and
the conduct of its businesses; (vi) to keep in force at not
less than their present limits all existing policies of
insurance; (vii) to make no material changes in the customary
terms and conditions upon which it does business; (viii) to
duly and timely file all reports, returns, and other documents
required to be filed with federal, state, local and other
Governmental Authorities; and, (ix) unless it is contesting
the same in good faith and has established reasonable reserves
therefor, to pay, when required to be paid, all Taxes
indicated by Returns so filed or otherwise lawfully levied or
assessed upon it or any of its properties and to withhold or
collect and pay to the proper Governmental Authorities or hold
in separate bank accounts for such payment all taxes and other
assessments which it believes in good faith to be required by
Law to be so withheld or collected.
8.6 Governmental Approvals. Prior to Closing, each of Chem-Con,
the Sullivans and the Xxxxxxxx Trusts shall use its best
efforts in good faith to take or cause to be taken as promptly
as practicable all such steps as shall be necessary to obtain
all required Governmental Approvals as promptly as practicable
to consummate the transactions contemplated by this Agreement.
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8.7 Encumber. None of Chem-Con, the ALS Trust nor the Xxxxxxxx
Trusts shall sell, pledge, encumber or otherwise hypothecate
or transfer or grant an option, warrant or right to sell or
dispose of any shares of capital stock of Chem-Con prior to
the Closing other than pursuant to this Agreement.
8.8 Title Policies for Real Property Owned by Chemical Florida.
On or before five (5) days prior to the Closing Date, Chemical
Florida shall deliver to Perma-Fix a fully paid policy or
policies of title insurance, dated as of a date within five
(5) days of the Closing Date, issued to Chemical Florida and
Perma-Fix by a title company of nationally recognized
standing, reasonably satisfactory to Perma-Fix, on a standard
ALTA's owner title insurance policy form, insuring that
Chemical Florida has good and marketable fee simple title in
and to each parcel of Real Property owned by Chemical Florida
listed on Schedule F hereto, free and clear of all Liens and
containing no exceptions, except Permitted Encumbrances. The
amount of such title insurance for each parcel of Real
Property owned by Chemical Florida shall be as set forth on
Schedule F hereto. The cost and expense for such title
insurance shall be shared equally by the Sullivans and Perma-
Fix.
8.9 Title Policies for Real Properties owned by Chemical Georgia.
On or before five (5) days prior to the Closing Date, Chemical
Georgia shall deliver to Perma-Fix a fully paid policy or
policies of title insurance, dated as of a date within five
(5) days of the Closing Date, issued to Chemical Georgia and
Perma-Fix by a company of nationally recognized standing,
reasonably satisfactory to Perma-Fix, on a standard ALTA's
owner title insurance policy form, insuring to Chemical
Georgia and Perma-Fix that Chemical Georgia has good and
marketable fee simple title in and to each parcel of Real
Property owned by Chemical Georgia listed on Schedule F
hereto, free and clear of all Liens and containing no
exceptions, except Permitted Encumbrances. The amount of such
title insurance for each parcel of Real Property owned by
Chemical Georgia shall be as set forth on Schedule F hereto.
The cost and expenses for such title insurance shall be shared
equally by the Sullivans and Perma-Fix.
8.10 Real Property Located in Orlando, Florida. The Real Property
located in Orlando, Florida, as described in Schedule F
attached hereto, and all improvements located thereon (the
"Orlando Real Property"), which Orlando Real Property is being
leased by Chemical Florida, from the ALS Trust. ALS Trust
represents and warrants that it has good and marketable fee
simple title in and to the Orlando Real Property and all of
the Mineral Rights thereunder, free and clear of any and all
Liens except for (a) Permitted Encumbrances and (b) two
mortgages owed to and held by (i) Sun Trust Bank with the
principal amount of such indebtedness as of December 31, 1998,
being approximately $110,000.00 ("Sun Trust Debt") and (ii)
Commercial Carrier with the principal amount of such
indebtedness as of the date hereof being approximately
$138,000.00 ("Carrier Debt"). The Sun Trust Debt and Carrier
Debt are collectively referred to herein as the "Two
Mortgages." Within ten (10) days prior to the Closing, the
ALS Trust shall, through a capital contribution, transfer and
convey good and marketable fee simple title to all of the
Orlando Real Property, all improvements located thereon and
all of the Mineral Rights thereunder, by a general warranty
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deed in form and contents satisfactory to Perma-Fix, to
Chemical Florida, free and clear of any and all Liens except
for Permitted Encumbrances and the Two Mortgages. ALS Trust
represents and warrants that the Two Mortgages are current and
without default and no event has occurred under the Two
Mortgages which would, with the passage of time, result in a
default. On or before five (5) days prior to the Closing
Date, the ALS Trust shall deliver to Perma-Fix a fully paid
policy of title insurance, dated as of the date within five
(5) days of the Closing Date, issued to Chemical Florida and
Perma-Fix by a title company of nationally recognized
standing, reasonably satisfactory to Perma-Fix, on a standard
ALTA's owner title insurance policy form, insuring to Chemical
Florida and Florida Perma-Fix that Chemical Florida has good
and marketable fee simple title in and to the Orlando Real
Property, free and clear of all Liens and containing no
exceptions other than (a) Permitted Encumbrances and (b) the
Two Mortgages. The amount of such title insurance shall be
$385,000.00. The cost and expense for such title insurance
shall be shared equally by the ALS Trust and Perma-Fix.
8.11 Survey. Simultaneously with the delivery of the title
policies to Perma-Fix pursuant to Sections 8.8, 8.9 and 8.10
hereof, Chem-Con shall deliver to Perma-Fix and the title
company issuing the title insurance under Sections 8.8, 8.9
and 8.10 hereof, a written survey certified in a manner
reasonably acceptable to Perma-Fix and prepared by a duly
licensed surveyor reasonably satisfactory to Perma-Fix
covering each of the Real Properties owned by Chem-Con and the
Orlando Real Property, which survey shall be satisfactory to
Perma-Fix and to the title company issuing the ALTA's owner's
title insurance policies prepared in accordance with the
"Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys" jointly established and adopted by ALTA and ACSM in
1992 and includes items 1, 2, 3, 4, 6, 7(a), 7(b)(i), 8, 9,
10, 11 and 13 of Table A thereto and pursuant to the accuracy
standards (as adopted by ALTA and ACSM and in effect on the
date of the certification) of an Urban Survey. The cost and
expense for such survey shall be shared equally by the
Sullivans and Perma-Fix.
8.12 Public Announcements. Perma-Fix, the Sullivans and the
Xxxxxxxx Trusts agree that they will consult with each other
before issuing any press releases or otherwise making any
public statements with respect to this Agreement or the
transactions contemplated hereby and any press release or any
public statement shall be subject to mutual agreement of the
parties, except as may be required by the disclosure
obligations of either party or their Affiliates under
applicable securities law.
8.13 Notification. Chem-Con, the Sullivans and the Xxxxxxxx Trusts
shall give Perma-Fix prompt written notice of (i) the
existence of any fact or the occurrence of any event which
constitutes, or with the giving of notice or the passage of
time or both would constitute a breach of any representation
or warranty of Chem-Con, the Sullivans or the Xxxxxxxx Trusts
made herein or pursuant hereto and (ii) the taking of any
action by Chem-Con, the Sullivans or the Xxxxxxxx Trusts that
would breach or violate, or constitute a default under, any
agreement or covenant of Chem-Con, the Sullivans or the
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Xxxxxxxx Trusts made herein or pursuant hereto. Upon the
giving of such notice, Perma-Fix may terminate this Agreement
in accordance with the terms hereof.
8.14 Filings. The parties hereto shall, as promptly as practicable
after the date hereof, submit applications, all documents,
reports and notifications, and satisfy all requests for
additional information, if any, pursuant to 40 Code of Federal
Regulations ("CFR") Part 270 and all other requirements under
any and all applicable Environmental Laws, with regard to the
transfer of, or changes in the ownership or operational
control of Chem-Con or any of its Subsidiaries or the permits,
licenses or approvals held or used by Chem-Con or any of its
Subsidiaries relating to the businesses of Chem-Con or any of
its Subsidiaries. Each of the parties hereto agree to
reasonably cooperate with each other to obtain all
authorizations required under any and all applicable laws, to
consummate the transactions contemplated hereby.
8.15 Supplemental Disclosure. Chem-Con, the Sullivans and the
Xxxxxxxx Trusts agree that, with respect to their
representations and warranties made in this Agreement, they
will have a continuing obligation to supplement or amend the
Schedules hereto with respect to any matter hereafter arising
or discovered which, if existing or known at the date of this
Agreement, would have been required to be set forth or
described in the Schedules hereto. Upon the supplementing or
amending of any Schedules by Chem-Con, the Sullivans or the
Xxxxxxxx Trusts or the discovery of any matters by Perma-Fix
in the course of its investigations, Perma-Fix may, at its
option, terminate this Agreement without any liability or
obligation on the part of Perma-Fix.
8.16 SEC Filings. Perma-Fix shall provide the Sullivans with all
reports and other filings it makes with the SEC under the
Securities Act or under the Exchange Act from the date of this
Agreement to the Closing.
8.17 Listing of Perma-Fix Common Stock. Perma-Fix shall use
reasonable efforts to obtain, prior to the Closing, approval
for listing on the BSE and NASDAQ Small Cap Market, upon
official notice of issuance, of the shares of Perma-Fix Common
Stock to be delivered pursuant to the provisions of Section
3.3 hereof.
8.18 Information for SEC Filings. The parties hereto will each
furnish to the other such data and information relating to it
as the other may reasonably request for the purpose of
including such data and information in documents to be filed
with the SEC by Perma-Fix.
8.19 Audited Financial Statements. Chem-Met, the Sullivans and the
Xxxxxxxx Trusts shall have Bovitz & Co., P.C., prepare, audit
and deliver to Perma-Fix true, correct and complete copies of
the 1998, 1997 and 1996 Audited Financial Statements of Chem-
Con and Chem-Met, on a combined basis, consisting of (i)
balance sheet as of fiscal years ended September 30, 1998,
September 30, 1997 and September 30, 1996; (ii) statement of
income and related earnings for the fiscal years ended
September 30, 1998, September 30, 1997 and September 30, 1996;
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(iii) statement of stockholders' equity and statement of cash
flow for the years ended September 30, 1998, September 30,
1997 and September 30, 1996, and (iv) notes thereto, with
auditors' report thereon being unqualified, all of which shall
have been examined by Bovitz & Co., P.C., independent
certified public accountants, and be in accordance with
Regulation S-X (17 C.F.R. Part 210) and GAAP, consistently
applied. The audited financial statements referred to in this
Section 8.19 shall include Chem-Con and Chem-Met, on a
combined basis. Perma-Fix agrees to pay for that portion of
such audited financial statements for Chem-Con and Chem-Met,
on a combined basis, relating to years ended September 30,
1996, 1997 and 1998 unless the audit finds that the income of
Chem-Con and Chem-Met, on a combined basis, is twenty percent
(20%) less than represented prior to accounting entries as
follows: (i) reversal of officer notes receivable of
$1,125,919 offset by a note payable from the officer in the
amount of $60,980; (ii) increased allowance for doubtful
accounts of Two Hundred Thousand Dollars ($200,000); (iii)
accrued expenses of Six Hundred Thousand Dollars ($600,000);
(iv) reserve for remediation of Chem-Con's Valdosta, Georgia
facility of One Million Eight Hundred Thousand Dollars
($1,800,000); and (v) accrued closure costs of Six Hundred
Thirty-Five Thousand Eight Hundred Two Dollars ($635,802), in
which case the audit shall be paid for in its entirety by
Chem-Con.
8.20 Public Disclosure. Perma-Fix and the Sullivans shall consult
with each other before issuing any press release or otherwise
making any public statement with respect to the Acquisitions
or this Agreement and shall not issue any such press release
or make any such public statement prior to such consultation,
except as may be required by law or any listing agreement with
a national securities exchange or the NASDAQ.
8.21 Letter of Public Accountants. Chem-Con, the Sullivans and the
Xxxxxxxx Trusts shall cause to be delivered to Perma-Fix a
letter, ("Accountant Letter") which shall be dated not less
than five days prior to the Closing Date, from Bovitz & Co.,
P.C., which shall be addressed to Perma-Fix and be in form
reasonably satisfactory to Perma-Fix and customary in scope
and substance for letters delivered by independent public
accountants in connection with registration statements and
shall contain, without limitation, the following statements: (i)
the combined Audited Financial Statements of Chem-Con and
Chem-Met examined by them comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and of the published Rules and Regulations
thereunder and (ii) on the basis of a reading of the latest
available unaudited consolidated financial statements,
inquiries of officers of Chem-Con and Chem-Met responsible for
financial and accounting matters and a reading of the minutes,
nothing has come to their attention which caused them to
believe that (a) as of the date of the latest available
unaudited interim financial statements prepared by Chem-Con
and Chem-Met there was any change in the capital stock or
long-term debt of Chem-Con, Chem-Met and their subsidiaries
consolidated or any decreases in consolidated net current
assets or in consolidated net assets, as compared with the
amounts shown in the September 30, 1998, consolidated Balance
Sheet, or (b) for the period from September 30, 1998, to the
date of the latest available unaudited interim consolidated
financial statements prepared by Chem-Con, there were any
decreases, as compared with the corresponding period in the
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preceding year, in consolidated net revenues or in total or
per share amounts of consolidated income (loss) before
extraordinary items or of consolidated net income, except in
all instances for changes or decreases which the Audited
Financial Statements of Chem-Con and Chem-Met disclose have
occurred or may occur, and (c) that on the basis of inquiries
of officers of Chem-Con and Chem-Met responsible for financial
and accounting matters and a reading of the minutes, nothing
has come to their attention which caused them to believe that
(1) at a specified date within five (5) days of the Closing
Date there was any change in the capital stock or long-term
debt of Chem-Con and Chem-Met and their subsidiaries
consolidated or any decreases in consolidated net current
assets or in consolidated net assets, as compared with amounts
shown on the September 30, 1998, consolidated Balance Sheet or
(2) for the period from the date of the Audited Financial
Statements prepared by Chem-Con and Chem-Met for year ended
September 30, 1998, to a specified date within five (5) days
of the Closing Date there were any decreases as compared with
the corresponding period in the preceding year, in
consolidated net revenues or in the total or per-share amounts
of consolidated income before extraordinary items or of
consolidated net income, except in all instances for changes
or decreases which this Agreement or the Chem-Met Agreement
discloses have occurred or may occur.
8.22 Assumption of Liabilities. Each of the Sullivans and the
Xxxxxxxx Trusts, jointly and severally, assume, and agree to
pay, when due to perform or discharge, as the case may be, any
and all (i) federal and/or state tax obligations and
liabilities of Chem-Con and Quanta (and any other corporation
with respect to periods for which such corporation was
included and consolidated federal income tax returns with
Chem-Con or Quanta) for any period ending on or prior to the
Closing Date, without regard to whether such liabilities have
been or would be properly provided for in the financial
records of any person under generally accepted accounting
principals, and including, without limitation, any such
obligations or liabilities arising from (A) the transactions
contemplated by this Agreement, (B) the determination of any
tax on a consolidated basis with any other corporation, or (C)
any tax sharing or tax allocation agreement, and (ii)
obligations and liabilities (absolute or contingent known or
unknown)of Quanta that have been incurred by Quanta in any
manner whatsoever prior to the Closing Date or arising in any
way in connection with the business or operations of Quanta
prior to the Closing Date.
8.23 Liability to Broker. The Sullivans have retained WHCA
Partners as an agent or firm acting on behalf of the Sullivans
and the Xxxxxxxx Trusts in connection with this Agreement and
the transactions contemplated by this Agreement. Except as
otherwise expressly provided in Section 4.15 hereof, the
Sullivans and the Xxxxxxxx Trusts shall, jointly and
severally, pay any and all fees or renumeration due and
payable to WHCA Partners as a result of this Agreement and/or
consummation of the transactions contemplated by this
Agreement.
8.24 Access to Premises and Books. The Sullivans, the Xxxxxxxx
Trusts and their representatives shall have full access to all
their premises and books and records relating to Perma-Fix,
and Perma-Fix shall provide to the Sullivans, the Xxxxxxxx
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Trusts and their representatives full access to their
premises and books and records, and to cause Perma-Fix's
officers to furnish the Sullivans, the Xxxxxxxx Trusts with
such financial and operating data and other information with
respect to the business and properties of Perma-Fix, as the
Sullivans or Xxxxxxxx Trusts shall from time to time request;
provided, however, that any such investigation shall not
affect any of the representations, warranties or covenants of
Perma-Fix hereunder; and, provided further, that any such
investigation shall be conducted in such manner as not to
interfere unreasonably with the operation of the business of
Perma-Fix. In the event of termination of this Agreement, the
Sullivans and the Xxxxxxxx Trusts will return to Perma-Fix
any and all financial statements, agreements, documents,
memoranda or other repositories of information relating to
Perma-Fix and its Subsidiaries that Chem-Con, the Sullivans or
the Xxxxxxxx Trusts have obtained in connection with their
review, and Chem-Con, the Sullivans and the Xxxxxxxx Trusts
agree that any written information relating to Perma-Fix and
its Subsidiaries and Perma-Fix's and its Subsidiaries'
financial condition, business, operations and prospects are
strictly confidential and shall not be voluntarily disclosed
to any third party or used by any of Chem-Con, the Sullivans
or the Xxxxxxxx Trusts for its benefit or the benefit of any
other person, except for such information or documents (i)
available generally to the public, (ii) in the possession of
Chem-Con prior to its receipt under this Agreement, (iii)
obtained by any of Chem-Con, the Sullivans or the Xxxxxxxx
Trusts from a third party who has an independent right to such
information or documents, or (iv) as otherwise required by law
to be disclosed; provided, however, that any confidentiality
requirements contained in this Section shall terminate and be
null and void twelve (12) months from the date of this
Agreement.
ARTICLE 9
CONDITIONS OF TRANSACTIONS CONTEMPLATED BY AGREEMENT;
ABANDONMENT OF AGREEMENT
_____________________________________________________
9.1 Closing Conditions of Perma-Fix. The obligations of Perma-Fix
to consummate this Agreement or to effect the transactions
contemplated by this Agreement shall be subject to the
following conditions:
9.1.1 Resolutions of Board of Directors and Shareholders of
Chem-Con. Chem-Con shall have furnished to Perma-Fix,
in form and substance satisfactory to Perma-Fix:
9.1.1.1 certified copies of resolutions of the
shareholder and Board of Directors of Chem-
Con, duly adopted by the Board of Directors
and shareholder of Chem-Con, authorizing, the
execution, delivery and performance of this
Agreement by Chem-Con and its shareholder;
9.1.1.2 Incumbency certificate for the officers
of Chem-Con.
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9.1.2 Delivery of Trust Documents. The trust documents
creating the Xxxxxxxx Trust shall have been delivered
to Perma-Fix evidencing, in form and content
satisfactory to Perma-Fix that each of the Xxxxxxxx
Trusts has the full, valid and legal capacity and
authority to execute, deliver and perform all of its
agreements, obligations, terms and conditions of this
Agreement.
9.1.3 Approval by Lender. Perma-Fix's lender shall have
approved the transactions contemplated by this
Agreement and the Chem-Met Agreement, and Perma-Fix
shall have obtained for Chem-Con and Chem-Met a working
capital line of credit from and after consummation of
the Acquisitions on terms satisfactory to Perma-Fix.
All of Chem-Met's debts and obligations to Charter Bank
shall have been paid in full, and Charter Bank shall
have released all liens and security interest in and to
the assets of Chem-Met, all in form and substance
satisfactory to Perma-Fix.
9.1.4 Representations and Warranties of the Sullivans and the
Xxxxxxxx Trusts to be True and Correct and Compliance
With Covenants. Except to the extent waived in writing
by Perma-Fix hereunder, (i) the representations and
warranties of the Sullivans and the Xxxxxxxx Trusts
herein contained shall be true and correct in all
material respects on the Closing Date with the same
effect as though made at such time; and (ii) the
Sullivans and the Xxxxxxxx Trusts shall have performed
all of their obligations and complied with all
covenants, obligations, and agreements required by this
Agreement to be performed or complied with by the
Sullivans and the Xxxxxxxx Trusts on or prior to the
Closing Date. The Sullivans and Xxxxxxxx Trusts shall
also have delivered to Perma-Fix a certificate, dated
the Closing Date and signed by each of the Sullivans
and all trustees of the Xxxxxxxx Trusts, to both of the
aforementioned effects. The Certificate is to be in
form and substance satisfactory to Perma-Fix.
9.1.5 Representations and Warranties of Chem-Con to be True
and Compliance With Covenants. Except to the extent
waived in writing by Perma-Fix hereunder, (i) the
representations and warranties of Chem-Con herein
contained shall be true in all material respects on the
Closing Date with the same effect as though made at
such time; and (ii) Chem-Con shall have performed all
obligations and complied with all covenants,
obligations, and agreements required by this Agreement
to be performed or complied with by Chem-Con on or
prior to the Closing Date. Chem-Con shall also have
delivered to Perma-Fix a certificate of Chemical
Florida (in form and substance satisfactory to Perma-
Fix), dated the Closing Date and signed by the chief
executive officer of Chemical Florida, to both of the
aforementioned effects. Chem-Con shall also have
delivered to Perma-Fix a certificate of Chemical
Georgia (in form and substance satisfactory to Perma-
Fix), dated the Closing Date and signed by the chief
executive officer of Chemical Georgia, to both of the
aforementioned effects.
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9.1.6 Third Party Consents. Chem-Con, the Sullivans and the
Xxxxxxxx Trusts shall have obtained consents to the
transactions contemplated by this Agreement from the
parties to all contracts, permits, agreements, debt
instruments and other documents referred to in the
Schedules delivered by Chem-Con, the Sullivans or the
Xxxxxxxx Trusts to Perma-Fix in accordance with this
Agreement or otherwise, which require such consents and
consents from, or notification to, all Governmental
Authorities which require such consents or
notifications.
9.1.7 No Material Adverse Change. There shall not have
occurred (i) any material adverse change since
September 30, 1998, in the business, properties,
assets, results of operations or financial condition of
Chem-Con, or (ii) any loss or damage to any of the
properties or assets (whether or not covered by
insurance) of Chem-Con which will materially affect or
impair the ability of Chem-Con to conduct, after
consummation of the transactions contemplated hereby,
the business of Chem-Con as now being conducted by
Chem-Con.
9.1.8 Statutory Requirements; Litigation. In a manner
satisfactory to Perma-Fix, (i) all statutory
requirements for the valid consummation by Chem-Con,
the Xxxxxxxx Trusts and the Sullivans of the
transactions contemplated by this Agreement shall have
been fulfilled; all authorizations, consents and
approvals of all Governmental Authorities required to
be obtained in order to permit consummation by Chem-
Con, the Xxxxxxxx Trusts and the Sullivans of the
transactions contemplated by this Agreement and to
permit the business presently conducted by Chem-Con to
continue unimpaired immediately following the Closing
shall have been obtained; and, (ii) all applications
for permits shall have been approved by the appropriate
Governmental Authorities and all authorizations and
approvals relating to all permits and licenses held by
Chem-Con shall have been obtained from the appropriate
Governmental Authorities under any and all of the
Environmental Laws as a result of the change in
ownership of Chem-Con, pursuant to the terms of this
Agreement, with such permits, approvals and
authorizations to be in form and substance satisfactory
to Perma-Fix, so that Chem-Con is permitted to continue
unimpaired immediately following the Closing Date the
same business operations that Chem-Con carried on as of
the date of this Agreement and the Closing Date.
Between the date of this Agreement and the Closing, no
Governmental Authority, whether federal, state or
local, shall have instituted (or threatened to
institute either orally or in a writing directed to any
of Chem-Con, the Sullivans and/or the Xxxxxxxx Trusts
or any of their subsidiaries) an investigation which is
pending on the Closing relating to this Agreement and
the transactions contemplated hereby, and between the
date of this Agreement and the Closing no action or
proceeding shall have been instituted or, to the
knowledge of Perma-Fix, shall have been threatened
before a court or other governmental body or by any
public authority to restrain or prohibit the
transactions contemplated by this Agreement or to
obtain damages in respect thereof.
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9.1.9 Opinion of Counsel of Chem-Con, the Sullivans and the
Xxxxxxxx Trusts. Perma-Fix shall have received from
X'Xxxxxx & Xxxxx, counsel to Chem-Con, the Sullivans
and the Xxxxxxxx Trusts, or such other counsel
acceptable to Perma-Fix and its counsel, an opinion or
opinions, dated the Closing Date, with the form and
contents thereof reasonably satisfactory to Perma-Fix
and its counsel.
9.1.10 Due Diligence. Perma-Fix shall have completed its
financial due diligence of Chem-Con, with the results
thereof satisfactory to Perma-Fix.
9.1.11 Environmental Audit. Perma-Fix shall have conducted
and completed an environmental audit of Chem-Con, and
shall have determined to the satisfaction of Perma-Fix
that, (i) Chem-Con has been and is currently in
compliance in all material respects with all applicable
Environmental Laws, except as otherwise disclosed
herein; (ii) none of the assets (including, but not
limited to, the soils and groundwater on or under any
of the Real Properties) owned, leased, operated or used
by Chem-Con are contaminated with any hazardous
substance (as defined in Section 101(14) of CERCLA or
any analogous state or local Laws) or petroleum (as
defined in Subtitle I of RCRA or any analogous state or
local Laws) in a manner that might have a material
adverse effect on Chem-Con, except as otherwise
disclosed herein; and (iii) Chem-Con is not or would
not be subject to any liability in any material amount
under any provision, or as a result of any past or
present violation, of any applicable Environmental
Laws.
9.1.12 Stock Certificates. On or prior to the Closing, the
ALS Trust shall execute, endorse in blank and deliver
to Perma-Fix, with signatures guaranteed by a bank or
investment banking firm and in form acceptable to
Perma-Fix, all of the stock certificates representing
the Shares, duly and validly endorsed for transfer,
free and clear of any and all Liens.
9.1.13 Permits. All permits (including, but not limited to,
all permits issued or issuable by Governmental
Authorities under all Environmental Laws) which Perma-
Fix deems necessary to conduct Chem-Con's business
after the Closing Date as currently conducted by Chem-
Con shall have been (i) duly and validly transferred,
or approved for transfer or control by Perma-Fix,
effective upon the Closing, in a manner satisfactory to
Perma-Fix by all appropriate Governmental Authorities
or (ii) duly and validly issued to Chem-Con by all
appropriate Governmental Authorities all in form and
content satisfactory to Perma-Fix.
9.1.14 No Liens on Assets. All assets of Chem-Con (real and
personal) shall be free and clear of any and all Liens,
except for Permitted Encumbrances.
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9.1.15 Listing of Perma-Fix Common Stock. The BSE and the
NASDAQ Small Cap Market shall have approved for
listing, upon official notice of issuance, the shares
of Perma-Fix Common Stock to be delivered pursuant to
the provisions of Article 3 hereof.
9.1.16 Minute Books and Stock Ledgers. The ALS Trust shall
have delivered to Perma-Fix the minute books and stock
ledgers for Chem-Con.
9.1.17 Financial Statements. Perma-Fix shall have received
from Bovitz & Co., P.C. Audited Financial Statements
("Chem-Con Audited Financial Statements") of Chem-Con
and Chem-Met for all years required to be included in
the Form 8-K to be filed by Perma-Fix as a result of
consummation of this Agreement and the Chem-Met
Agreement and as required by Regulation S-X (17 CFR
Part 210), with such audited financial statements to be
prepared in accordance with Regulation S-X (17 CFR Part
210) and GAAP, consistently applied throughout the
periods, and with the Bovitz & Co., P.C. report in
connection therewith to be unqualified.
9.1.18 Orlando Real Estate. Good and marketable fee simple
title in and to the Orlando Real Estate and all
improvements thereon shall have been transferred and
conveyed to Chemical Florida by a capital contribution,
free and clear of any and all Liens, except for the
Permitted Encumbrances and the Two Mortgages. Further,
Sun Trust Bank shall have paid the Commercial Carrier
debt and Commercial Carrier shall have released their
mortgage on the Orlando Real Estate.
9.1.19 Title Policies and Surveys. Prior to the Closing Date,
Perma-Fix shall have received the title insurance
policies and surveys pursuant to Sections 8.8, 8.9,
8.10 and 8.11 hereof.
9.1.20 Good Standing Certificates. Good standing and tax
certificates (or analogous documents), dated as close
as practicable to the Closing, from the appropriate
authorities in each jurisdiction of incorporation of
Chem-Con and in each jurisdiction in which Chem-Con is
qualified to do business, showing Chem-Con to be in
good standing and to have paid all taxes due in the
applicable jurisdiction.
9.1.21 Resignation of Directors. All of the directors of
Chem-Con shall have resigned as members of the Board of
Directors of Chem-Con, effective as of the Closing
Date, except for any existing director of Chem-Con who
Perma-Fix advises the ALS Trust in writing prior to
Closing is to remain a director of Chem-Con, whichever
is applicable, prior to Closing.
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9.1.22 Chem-Met Agreement. The Chem-Met Agreement shall have
closed contemporaneously with the Closing of this
Agreement.
9.1.23 Valdosta Remediation. Prior to Closing, Perma-Fix
shall have determined that the cost to remediate the
contamination at the Valdosta, Georgia facility where
Chemical Georgia is located shall not, in the
aggregate, exceed $1,800,000.
9.1.24 Shareholder Approval. The shareholders of Chem-Con
shall have approved the Acquisitions pursuant to the
laws of the states of incorporation of Chem-Con and no
shareholders of Chem-Con shall have exercised or
attempted to exercise dissenters rights or other
similar rights in connection with the transactions
contemplated hereby.
9.1.25 Accountants Letters. Perma-Fix shall have received the
Accountant Letter and such shall be satisfactory to
Perma-Fix.
9.1.26 Officer and Director Waiver. Each officer and director
of Chem-Con and CCC shall have executed and delivered
to Perma-Fix an agreement, in form and substance
satisfactory to Perma-Fix pursuant to which each such
officer and director shall waive any and all rights to
indemnification which any such officer and director may
have from Chem-Con and/or CCC pursuant to Chem-Con's or
CCC's Certificate of Incorporation, Bylaws, any
indemnification agreements, or otherwise.
9.1.27 Fairness Opinion. Within five (5) days prior to the
Closing, Perma-Fix shall have received a fairness
opinion from an investment banker selected by Perma-Fix
that this Agreement and the Chem-Met Agreement and the
consideration to be issued by Perma-Fix under this
Agreement and the Chem-Met Agreement is fair to Perma-
Fix and its shareholders from a financial standpoint,
with the form and contents of such opinions to be
satisfactory to Perma-Fix.
9.1.28 Michigan Strategic Fund. Perma-Fix shall have arranged
with its lender to repay the Chem-Con and/or Chem-Met
debt to the Michigan Strategic Fund, and the Michigan
Strategic Fund shall have released and terminated its
liens in and to any and all assets of Chem-Con and
Chem-Met.
9.2 Conditions to Obligations of Chem-Con and The ALS Trust. The
obligation of Chem-Con and the ALS Trust to consummate this
Agreement or to effect the transactions contemplated by this
Agreement shall be subject to the following conditions:
9.2.1 Resolutions of Perma-Fix Board of Directors and
Shareholders. Perma-Fix shall have furnished Chem-Con
with:
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9.2.1.1 certified copies of resolutions duly adopted
by the Board of Directors of Perma-Fix
approving and authorizing execution, delivery
and performance of the transactions
contemplated by this Agreement;
9.2.1.2 Incumbency Certificates for the officers of
Perma-Fix.
9.2.2 Representations and Warranties of Perma-Fix to be True.
Except to the extent waived hereunder, (i) the
representations and warranties of Perma-Fix herein
contained shall be true in all material respects at the
Closing with the same effect as though made at such
time, except for such which do not have a material
adverse effect on Perma-Fix and its subsidiaries, taken
as a whole; and (ii) Perma-Fix shall have performed all
material obligations and complied with all material
covenants required by this Agreement to be performed or
complied with by it prior to the Closing. Perma-Fix
shall also have delivered to the ALS Trust a
certificate of Perma-Fix, dated the Closing and signed
by its President or a Vice President, to both of the
aforementioned effects.
9.2.3 No Material Adverse Change. Except as otherwise
disclosed in this Agreement or as publicly disclosed to
the shareholders of Perma-Fix or contained in the
Perma-Fix SEC Filings, there shall not have occurred
(i) any material adverse change since December 31,
1998, in the consolidated financial condition of Perma-
Fix (it being understood that anything disclosed in any
of the financial data furnished by Perma-Fix to the
Sullivans or the Xxxxxxxx Trusts pursuant to this
Agreement, or in an annual, interim or other report
filed by Perma-Fix with the SEC or press releases
issued by Perma-Fix (copies of which shall have been
furnished to the ALS Trust) since December 31, 1998,
and prior to the date of this Agreement (copies of
which shall have been furnished to Chem-Con, the
Sullivans or the Xxxxxxxx Trusts), shall not constitute
such a material adverse change or (ii) any loss or
damage to any of the material properties or assets of
Perma-Fix which would have a material adverse effect on
Perma-Fix and its subsidiaries considered as a whole.
9.2.4 Litigation. Between the date of this Agreement and the
Closing, no Governmental Authority, whether federal,
state or local, shall have instituted (or threatened to
institute, either orally or in writing, directed to any
of the Xxxxxxxx Trusts, Perma-Fix, Chem-Con, or any of
their subsidiaries) an investigation which is pending
on the Closing Date relating to the transactions
contemplated by this Agreement and between the date of
this Agreement and the Closing Date, no action or
proceeding shall have been instituted or, to the
knowledge of the Sullivans, the Xxxxxxxx Trusts, Perma-
Fix or Chem-Con, shall have been threatened before a
court or other governmental body or by any public
authority to restrain or prohibit the transactions
contemplated by this Agreement or to obtain damages in
respect thereof.
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9.2.5 Opinion of Counsel of Perma-Fix. The ALS Trust shall
have received from Xxxxxx & Xxxxxxx, a Professional
Corporation, counsel to Perma-Fix, or such other
counsel reasonably acceptable to the ALS Trust and its
counsel, an opinion, dated the Closing Date, with the
form and content thereof reasonably satisfactory to
Chem-Con and its counsel.
9.3 Termination of Agreement and Abandonment of Acquisitions.
Except as otherwise provided in Sections 8.1.1 and 8.29
hereof, this Agreement and the transactions contemplated
hereby may be terminated at any time before the Closing as
follows and in no other manner:
9.3.1 Conditions of the Sullivans, the Xxxxxxxx Trusts or
Chem-Con Not Met. By Perma-Fix if, by June 30, 1999,
the conditions set forth in Section 9.1 of this Article
9 shall not have been met (or waived as provided in
Article 10 of this Agreement).
9.3.2 Conditions of Perma-Fix Not Met. By the Sullivans if,
by June 30, 1999, the conditions set forth in Section
9.2 of this Article 9 shall not have been met (or
waived as provided in Article 10 of this Agreement).
9.3.3 Termination by Perma-Fix or the Sullivans under Section
9.3 of the Chem-Met Agreement. By Perma-Fix or by the
Sullivans, if the Chem-Met Agreement is terminated
pursuant to the terms thereof.
9.3.4 Mutual Consent. By the mutual written consent of both
Perma-Fix and Chem-Con.
9.4 Expenses. Each party shall bear its own out-of-pocket
expenses incurred in connection with the transactions
contemplated by this Agreement, including, without limitation,
all legal, accounting, consulting, brokers, advisory, travel,
communications and other similar fees and expenses; provided,
however, that any and all such expenses incurred by Chem-Con
in connection with this Agreement and consummation of the
transactions contemplated by this Agreement shall be
considered as incurred by the ALS Trust and shall be paid by
the ALS Trust.
ARTICLE 10
TERMINATION OF OBLIGATIONS AND WAIVER OF CONDITIONS
___________________________________________________
10.1 Termination. In the event that this Agreement shall be
terminated pursuant to Section 9.3 hereof, all further
obligations of the parties hereto under this Agreement shall
terminate without further liability of any party to another
and each party hereto will pay its own costs and expenses
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incident to its negotiation and preparation of this Agreement
and to its performance and compliance with all agreements and
conditions contained herein on its part to be performed or
complied with, including the fees, expenses and disbursements
of its counsel.
10.2 Waiver. If any of the conditions specified in Section 9.1 of
Article 9 hereof has not been satisfied, Perma-Fix may
nevertheless at the election of Perma-Fix proceed with the
transactions contemplated hereby; and, if any of the
conditions specified in Section 9.2 of Article 9 hereof has
not been satisfied, the ALS Trust may nevertheless at the ALS
Trust' election proceed with the transactions contemplated
hereby. Any such election to proceed shall be evidenced by a
certificate executed on behalf of the electing party. Any
such waiver shall not be considered as a waiver of any of the
other terms and provisions of this Agreement by the electing
party.
ARTICLE 11
INDEMNIFICATION AND SURVIVAL OF
REPRESENTATIONS AND WARRANTIES
______________________________
11.1 Indemnification by the Sullivans and the Xxxxxxxx Trusts. The
Sullivans and the Xxxxxxxx Trusts shall, jointly and
severally, defend, indemnify and hold harmless each of Perma-
Fix, Chem-Con, and each of their officers, directors,
employees, agents, representatives and Affiliates from and/or
against any and all claims, judgments, demands, damages,
penalties, fines, losses, orders (judicial or administrative),
decrees, liabilities, obligations, costs, claims and expenses
(including, without limitation, reasonable attorneys' fees and
accountant fees) which any of Perma-Fix, Chem-Con and each of
their officers, directors employees, agents, representatives
and Affiliates incurs or suffers or may incur or suffer at any
time as a result of or in connection with or arising out of
(i) any representation or warranty made by any of Chem-Con,
the Sullivans and/or the Xxxxxxxx Trusts in this Agreement or
any certificate or other document delivered to Perma-Fix
pursuant to this Agreement that is false or misleading; (ii)
any breach of or failure to perform any agreements, covenants,
promises or obligations of Chem-Con, the Sullivans and/or
Xxxxxxxx Trusts contained in this Agreement; (iii) any
liabilities, obligations or claims arising in any way from any
and all federal or state income tax liability which Chem-Con,
Chem-Met and/or Quanta may be liable to pay for any reason
whatsoever for any and which have not been disclosed to
Perma-Fix in writing on or prior to the date of this
Agreement, all periods prior to the Closing Date; (iv) any and
all other liabilities, obligations or claims incurred by
Quanta prior to the Closing Date or arising in any way in
connection with the business or operations of Quanta prior to
the Closing Date prior to the date of this Agreement; (v) any
liabilities, obligations or claims brought under CERCLA or
RCRA or any analogous state statute for the release or
threatened release of any hazardous substances (as defined in
CERCLA) or hazardous waste (as defined in RCRA) in which the
Sullivans or Chem-Con knew was pending or threatened against
Chem-Con as of the date hereof or at the Closing Date but
failed for any reason to disclose such in this Agreement or
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was, directly or indirectly, caused by or resulted from the
knowing or willful violation by Xxxxxxxx or Chem-Con on or
prior to the Closing Date of CERCLA, RCRA or any analogous
state statute; or (vi) any and all liabilities, obligations or
claims arising in any way from any hazardous waste facility
gross receipts tax that may be due under Fl. St. Section 403.7215
(and any predecessor statute) for which Chemical Florida may
be liable or required to pay for any reason whatsoever for any
and all periods prior to January 1, 1999.
11.2 Indemnification as to Four County Landfill. The Sullivans and
the Xxxxxxxx Trusts shall, jointly and severally, defend,
indemnify and hold harmless each of Perma-Fix, Chem-Met and
each of their officers, directors, employees, agents,
representatives and Affiliates from and against any and all
claims, demands, damages, liabilities, obligations, costs, and
expenses which any of Perma-Fix, Chem-Met and/or each of their
officers, directors, employees, agents, representatives and
Affiliates incurs and suffers, or may incur or suffer, at any
time as a result of or in connection with the Four County
Landfill; provided however, that the Sullivans and the
Xxxxxxxx Trusts (i) shall not have any liability under this
Section 11.2 if there are no claims or demands, or a series of
claims or demands, against Perma-Fix or Chem-Met and/or any
of their officers, directors, employees, agents,
representatives or Affiliates that exceed, in the aggregate,
$900,000 relating to or in connection with the Four County
Landfill, and (ii) the Sullivans and the Xxxxxxxx Trusts
liability under this Section 11.2 shall be further limited to
one-half of the amount of the total of any and all claims,
demands, damages, liabilities or obligations of or against
Perma-Fix or Chem-Met or any of their officers, directors,
employees, agents, representatives or Affiliates in excess of
$900,000.00 relating to or in connection with, or arising out
of the Four County Landfill, and any withdrawal by the Indiana
Department of Environmental Management ("IDEM") of IDEM's
approval of the Agreed Order (as defined below) between
Chem-Met, IDEM, Office of the Indiana Attorney General, Four
County Landfill Group and their respective members and the
Four County Xxxxxxxx Xxxxxxxx Xxxx #0 XX/XX Group and their
respective members, executed by the parties to the Agreed
Order during February 1999, relating to Chem-Met's settlement
of any and all claims, liabilities or obligations of Chem-Met
relating to or in connection with the Four County Landfill
(the "Agreed Order") as a result of timely comments and
objections filed during the notice and thirty (30) day comment
period contemplated by the Agreed Order. The Sullivans, the
Xxxxxxxx Trusts, Perma-Fix and Chem-Met further agree that if
the prior approval by IDEM of the Agreed Order is not
withdrawn within a reasonable period following the expiration
of the notice and thirty (30) day comment period contemplated
by the Agreed Order and the final resolution of any timely
comments or objections submitted or asserted with respect
thereto, the obligation of the Sullivans and the Xxxxxxxx
Trusts under this Section 11.2 shall terminate.
11.3 Notice of Claim. Perma-Fix shall give the Sullivans and the
Xxxxxxxx Trusts a written notice (the "Notice of Claim")
within ninety (90) days of the discovery of any matter in
respect of which the right to indemnification contained in
Section 11 can be claimed. Notwithstanding the foregoing,
failure to give such notice will not terminate any obligation
of the Sullivans and the Xxxxxxxx Trusts hereunder.
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11.4 Survival of Representations and Remedies. All representations
and warranties contained in this Agreement shall survive the
Closing, regardless of the investigation made by either party
hereto. This Agreement and all covenants and agreements
contained in this Agreement shall survive the Closing.
ARTICLE 12
MISCELLANEOUS
_____________
12.1 Entire Agreement and Amendment. This Agreement and the Chem-Met
Agreement, including the Exhibits and Schedules hereto and thereto,
sets forth the entire agreement and understanding between the parties
and merges and supersedes all prior discussions, agreements and
understandings of every kind and nature among them as to the
subject matter hereof, and no party shall be bound by any
condition, definition, warranty or representation other than
as expressly provided for in this Agreement, the Chem-Met Agreement
or as may be on a date on or subsequent to the date hereof duly set
forth in writing signed by each party which is to be bound thereby.
Unless otherwise expressly defined, terms defined in the
Agreement shall have the same meanings when used in any
Exhibit or Schedule and terms defined in any Exhibit or
Schedule shall have the same meanings when used in the
Agreement or in any other Exhibit or Schedule. This Agreement
(including the Exhibits and Schedules hereto) shall not be
changed, modified or amended except by a writing signed by
each party to be charged and this Agreement may not be
discharged except by performance in accordance with its terms
or by a writing signed by each party to be charged.
12.2 Taxes. Any Taxes in the nature of a sales or transfer tax
(including any realty transfer tax or realty gains transfer
tax), and any stock transfer tax, payable on the consummation
of any other transaction contemplated hereby shall be paid by
the Sullivans and the Xxxxxxxx Trusts.
12.3 Governing Law. This agreement shall be construed in
accordance with and governed by the Laws of Delaware, without
regard to the principles of conflicts of laws thereof.
12.4 Benefit of Parties; Assignment. This Agreement shall be
binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
The Agreement may not be assigned by any of the parties hereto
except with the prior written consent of the other parties
hereto. Nothing herein contained shall confer or is intended
to confer on any third party or entity which is not a party to
this Agreement any rights under this Agreement.
12.5 Pronouns. Whenever the context requires, the use in this
Agreement of a pronoun of any gender shall be deemed to refer
also to any other gender, and the use of the singular shall be
deemed to refer also to the plural.
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12.6 Headings. The headings in the sections, paragraphs, Schedules
and Exhibits of this Agreement are inserted for convenience of
reference only and shall not constitute a part hereof. The
words "herein", "hereof", "hereto" and "hereunder", and other
words of similar import refer to this Agreement as a whole and
not to any particular provision of this Agreement.
12.7 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if sent by
registered mail or certified mail, postage prepaid, addressed:
If to Perma-Fix: Perma-Fix Environmental Services, Inc.
0000 Xxxxxxxxx 00xx Xxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Attention: President
With a copy to: Xxxxx X. Xxxxxxxxx, Esquire
Xxxxxx & Xxxxxxx
One Leadership Square
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
If to Chem-Con,
the Sullivans
and the Xxxxxxxx
Trusts: Xx. Xxxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxx Xxxxxx Xxxx, Xxxxxxxx 00000
With a copy to: Xxxxx X. X'Xxxxxx, Esq.
X'Xxxxxx & Xxxxx
000 Xxxxxxxx
Xxxxxx Xxxxxx Xxxxx, Xxxxxxxx 00000
or to such other address as shall be furnished in writing by
either party. Any such notice or communication shall be
deemed to have been given as of three (3) days after posting,
one (1) day after next day delivery service or upon personal
delivery.
12.8 Time. Time is of the essence of this Agreement.
12.9 Severability. Each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid
under applicable law; but, if any provision of this Agreement
is held to be invalid under applicable law, such provision
will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
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12.10 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 hereto and delivered to each of the other
parties hereto.
12.11 Termination of Previous Agreement as defined in the
seventh WHEREAS clause of this Agreement. Effective
upon the execution of this Agreement, the Agreement and
Plan of Merger is rendered null and void and of no
effect whatsoever and this Agreement is entered into to
replace such Agreement and Plan of Merger in its
entirety.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
-56-
IN WITNESS WHEREOF, the parties hereto execute this
Agreement on the 27th day of May, 1999.
PERMA-FIX ENVIRONMENTAL SERVICES, INC.
By: /s/ Xxxxx Xxxxxxxxxx
_____________________________________
Xx. Xxxxx X. Xxxxxxxxxx
President
CHEMICAL CONSERVATION CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
_____________________________________
Xxxxxx X. Xxxxxxxx
President
CHEMICAL CONSERVATION CORPORATION OF
GEORGIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
_____________________________________
Xxxxxx X. Xxxxxxxx
President
THE XXXXXX X. XXXXXXXX LIVING TRUST,
Dated September 6, 1978
By: /s/ Xxxxxx X. Xxxxxxxx
_____________________________________
Xxxxxx X. Xxxxxxxx, Sole Trustee,
under the Xxxxxx X. Xxxxxxxx Living
Trust, Dated September 6, 1978, and
any amendments thereto.
THE XXX X. XXXXXXXX LIVING TRUST,
Dated September 6, 1978
By: /s/ Xxx X. Xxxxxxxx
_____________________________________
Xxx X. Xxxxxxxx, Sole Trustee under
the Xxx X. Xxxxxxxx Living Trust,
Dated September 6, 1978, and any
amendments thereto.
XXXXXX X. XXXXXXXX
By: /s/ Xxxxxx X. Xxxxxxxx
_____________________________________
Xxxxxx X. Xxxxxxxx, individually
XXX X. XXXXXXXX
By: /s/ Xxx X. Xxxxxxxx
_____________________________________
Xxx X. Xxxxxxxx, individually
