Exhibit 10.1
STOCK REPURCHASE AGREEMENT
WHEREAS, and Republic Services of Georgia, Limited Partnership ("RSLP"), a
Delaware limited partnership (as successor to United Waste Service, Inc.
("United")), is the owner of 320,000 shares (the "Shares") of Class B
Convertible Preferred Stock, par value $1.00 per share ("Class B Preferred
Stock"), of XxxxxXxx Technologies Inc., a Delaware corporation (the "Company");
WHEREAS, RSLP wishes to sell the Shares to the Company pursuant to the
terms and conditions of this Agreement; and
WHEREAS, the Company wishes to repurchase the Shares from RSLP pursuant to
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and for other
consideration the receipt and adequacy of which is hereby acknowledged by the
parties, the parties hereby agree as follows:
1. Sale of the Shares.
(a) RSLP hereby sells, assigns and conveys to the Company all right,
title and interest in and to the Shares, free and clear of all liens,
encumbrances, charges, equities or restrictions. RSLP herewith delivers to the
Company (i) certificate number 1, representing 320,000 shares of Class B
Convertible Preferred Stock, registered in the name of United in the stock
records of the Company, and (ii) stock transfer powers, duly executed and
authorizing the transfer of the Shares to the Company.
(b) In consideration of the purchase of the Shares, the Company
herewith delivers to RSLP a Promissory Note, in the form attached hereto as
Exhibit A to this Agreement (the "Note"), representing the Company's obligation
to pay to RSLP One Million Five Hundred Thousand Dollars ($1,500,000) and a
certificate representing One Hundred Thousand (100,000) shares of XxxxxXxx
Common Stock, $.01 par value per share.
(c) RSLP from time to time after the date of this Agreement at the
request of the Company and without further consideration shall execute and
deliver further instruments of transfer and assignment and take such other
action as the Company may reasonably require to more effectively transfer and
assign to, and vest in, the Company title to the Shares.
2. Representations and Warranties of RSLP. RSLP hereby represents and
warrants to the Company that:
(a) RSLP is a limited partnership duly organized, validly existing
and in good standing under the laws of the State of Georgia. RSLP is the
successor in interest to the assets and liabilities of United. United is the
record owner, and RSLP is the sole beneficial owner, of
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all of the Shares, free and clear of any liens, claims, restrictions, equities
or encumbrances. There are no options, warrants, contracts, calls, commitments
or demands of any nature relating to the Shares. The Shares represent RSLP's
entire equity interest in the Company, and RSLP has no other options, warrants,
contracts, calls, commitments or demands of any nature with respect to the
equity in the Company.
(b) RSLP has all requisite power and authority to execute and
deliver this Agreement and to sell the Shares to the Company. All action on the
part of RSLP, its partners, officers and/or governing body necessary for the
authorization of this Agreement and the performance of all obligations of RSLP
hereunder, including the sale of the Shares to the Company, has been taken. This
Agreement constitutes the valid and binding obligation of RSLP, enforceable
against RSLP in accordance with its terms. The execution, delivery and
performance by RSLP of this Agreement do not, and the performance by RSLP of the
transactions contemplated hereby will not:
(i) violate any laws of the United States, or any state or
other jurisdiction, or any order, judgment or decree, applicable to RSLP
or require RSLP to obtain any approval, consent or waiver of, or make any
filing with, any person or entity (governmental or otherwise) that has not
been obtained or made;
(ii) with or without notice or lapse of time or both, result
in a violation or any breach of or constitute a default under, or require
the consent or approval of any third party under, any material note, bond,
mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which RSLP is a party or to
which the Shares are subject; or
(iii) result in the creation or imposition of any lien,
encumbrance, charge, claim or restriction upon any of the Shares.
(c) There is no litigation or governmental or administrative
proceeding or investigation pending against RSLP or, to the knowledge of RSLP,
threatened against RSLP which would prevent or hinder the consummation of the
transactions contemplated by this Agreement.
(d) RSLP acknowledges that it has entered into this Agreement based
on its own assessment of the business and prospects of the Company. RSLP has not
received or relied upon any information, written or otherwise, from the Company
or its directors, officers, employees or agents (other than information that is
generally publicly available) in determining to enter into this Agreement or to
sell the Shares to the Company.
3. Representations and Warranties of the Company. The Company hereby
represents and warrants to RSLP that:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
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(b) The Company has all requisite power and authority to execute and
deliver this Agreement and the Note to RSLP. All action on the part of the
Company, its directors and stockholders necessary for the authorization of this
Agreement and the performance of all obligations of the Company hereunder,
including the issuance and delivery of the Note to RSLP, has been taken. This
Agreement constitutes, and, when executed in accordance with the terms of this
Agreement, the Note will constitute, valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective
terms. The execution, delivery and performance by RSLP of this Agreement and the
Note do not, and the performance by RSLP of the transactions contemplated hereby
and thereby will not:
(i) violate any laws of the United States, or any state or
other jurisdiction, or any order, judgment or decree, applicable to the
Company or require the Company to obtain any approval, consent or waiver
of, or make any filing with, any person or entity (governmental or
otherwise) that has not been obtained or made (other than customary
disclosure in accordance with the federal securities laws); or
(ii) with or without notice or lapse of time or both, result
in a violation or any breach of or constitute a default under, or require
the consent or approval of any third party that has not been obtained
under, any material note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to
which the Company is a party or to which any of its properties are
subject.
(c) There is no litigation or governmental or administrative
proceeding or investigation pending against the Company or, to the knowledge of
the Company, threatened against the Company which would prevent or hinder the
consummation of the transactions contemplated by this Agreement.
4. Release. RSLP hereby remises, releases and forever discharges, and by
these presents does for itself, and its affiliates, predecessors, successors
and/or assigns, remise, release and forever discharge the Company and its
stockholders, subsidiaries, affiliates, directors, officers, employees,
predecessors, attorneys, advisors, successors and/or assigns, of and from any
and all manner of action and actions, cause and causes of action, suits, debts,
controversies, damages, judgments, executions, claims and demands whatsoever, in
law or in equity, which against said releases RSLP ever had, now has or may in
the future have, whether or not now known; provided, however, that nothing
herein shall be construed as a release and discharge by RSLP of any rights and
remedies under this Agreement or the Note, whether for any misrepresentation
contained herein or therein or otherwise, or in connection with the future
obligations of the Company contemplated hereby or thereby.
5. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of this Agreement shall be
severable and enforceable to the extent permitted by law.
6. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Company and RSLP and their respective legal representatives,
successors and assigns.
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7. Notices. All notices required or permitted hereunder shall be in
writing and deemed effectively given upon personal delivery or on the third day
after deposit with a recognized international courier service, expedited
delivery charges prepaid, addressed to the address shown beneath the parties'
respective signature to this Agreement, or at such other address or addresses as
either party shall designate to the other in accordance with this Section 7.
8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties, and supersedes all prior agreements and understandings,
relating to the subject matter of this Agreement.
9. Amendment. This Agreement may be amended or modified only by a written
instrument executed by the Company and XXXX.
00. Governing Law. This Agreement is made under and shall be governed by
the internal laws of the Commonwealth of Massachusetts, without giving effect to
any choice of law or conflicts of law provision or rule that would cause the
application of internal laws of any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the 14th day of February, 2002.
XXXXXXXX TECHNOLOGIES, INC.
By: ________________________________
Name:____________________________
Title:___________________________
REPUBLIC SERVICES OF GEORGIA,
LIMITED PARTNERSHIP
By: ________________________________
Name:____________________________
Title:___________________________
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