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EXHIBIT 10.6
PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into this 1st day of September,
1999 by and between Xxxxxx XxXxxxx, Xxxxx Xxxxxxxxx, and Xxxxxx Xxxxx,
individuals having an office for the transaction of business at 0000 X.X. 00xx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000 (hereinafter sometimes referred to
individually as "Seller" and collectively as "Sellers"), and, EarthCare
Company, a Delaware Corporation with principal offices at 00000 Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000 (hereinafter referred to as "EarthCare" or
"Buyer").
WITNESSETH:
WHEREAS, the Sellers are the owners of all of the capital stock of
the following corporations: MAGNUM ENVIRONMENTAL SERVICES, INC. (hereinafter
referred to as "ENVIRONMENTAL SERVICES"); MAGNUM WORLD ENTERPRISES, INC.
(hereinafter referred to as "WORLD ENTERPRISES") and MAGNUM PROPERTY
DEVELOPMENT CORPORATION (hereinafter referred to as "PROPERTY DEVELOPMENT"),
such corporations being hereafter sometimes referred to as the "Corporations".
WHEREAS, the Sellers are the owners of all of the limited partnership
interests in, and Property Development is the sole owner of the general
partnership in, the following limited partnerships: MAGNUM EAST COAST
PROPERTIES, LTD (hereinafter referred to as "EAST COAST"), MAGNUM WEST COAST
PROPERTIES, LTD. (hereinafter referred to as "WEST COAST") and MAGNUM NORTH
EAST PROPERTIES, LTD. (hereinafter referred to as "NORTH EAST"), such limited
partnerships being hereinafter sometimes referred to as the "Limited
Partnerships."
WHEREAS, the Corporations and the Limited Partnerships are hereinafter
collectively referred to as the "Companies" and the interest of the Sellers in
the capital stock of the Corporations and the limited partnership interest of
the Limited Partnerships are hereinafter referred to sometimes collectively as
the "Ownership Interests."
WHEREAS, Buyer desires to acquire, and Seller desire to sell, the
Ownership Interests for cash and shares of the common stock, ($.0001 par value
of the Buyer) said shares of common stock being hereinafter sometimes referred
to as the "Earth Care Common Stock."
NOW THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained in this
Agreement, and for other good and valuable consideration the mutual receipt and
sufficiency of which is hereby acknowledged by the parties hereto, THE PARTIES
HERETO AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF OWNERSHIP INTERESTS.
1.1 Upon the basis of the representations and warranties
contained herein and subject to the terms and conditions of
this Agreement, at the time of "Closing" (as hereinafter
defined) Sellers shall sell, convey, transfer, assign and
deliver to Buyer, and Buyer shall purchase from Sellers, all
of the Ownership Interests.
1.2 At the time of Closing, as part of the purchase price
for the Ownership Interests, and in exchange therefor, Buyer
shall pay to Sellers:
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1.2(a) Base Purchase Price. Sellers shall receive from Buyer Two
Million Two Hundred Seventy Eight Thousand One Hundred Forty
Three Dollars ($2,278,143) by a wire transfer through the
Federal Reserve System at Closing. In addition, Buyer shall
deliver to an escrow agent satisfactory to Buyer and Sellers,
the sum of Five Hundred Thousand Dollars ($500,000) for
Sellers' benefit as security for the material accuracy of
Seller's representations and warranties (Holdback Escrow). The
form of the escrow agreement with appropriate insertions is
attached hereto as SCHEDULE A and made a part hereof.
1.2(b) Registered Shares Purchase Price. In addition, Sellers shall
receive from Buyer at Closing Three Hundred Ten Thousand
(310,000) shares of Buyers' common stock duly registered under
the Securities Act of 1933 as amended ("Act") to the extent
necessary to permit dispositions of such shares.
1.2(c) Working Capital Purchase Price. Buyer shall pay to Sellers on
October 31, 1999 (Adjustment Date), as part of the purchase
price, any excess working capital computed as of August 31,
1999, actual closing of books of account. To the extent that
any of Company's accounts receivable generated prior to the
Closing Date are outstanding and constitute a portion of
excess working capital on the Adjustment Date, such accounts
receivable shall be distributed to Sellers on the Adjustment
Date.
1.2(d) Earnout Purchase Price. Sellers shall receive from Buyers Two
Hundred Seventy-Five Thousand (275,000) shares of unregistered
EarthCare Common Stock at Closing in escrow. The form of
escrow agreement is attached hereto as SCHEDULE A and made a
part hereof.
If Companies generate earnings before interest, depreciation,
taxes and amortization (EBITDA) of Two Million Dollars
($2,000,000) twelve (12) months subsequent to the Closing, One
Hundred Thirty-Eight Thousand (138,000) of such shares shall
be released from escrow; and if they generate that much in the
second twelve (12) months subsequent to Closing, One Hundred
Thirty-Seven Thousand (137,000) shares shall be released from
escrow. Notwithstanding anything to the contrary stated herein
275,000 of such shares shall be released from escrow if the
EBITDA for 24 months subsequent to closing equals or exceeds
Four Million Dollars ($4,000,000). EBITDA shall be determined
in accordance with generally accepted accounting principles.
Such shares released from escrow shall be registered as a
"piggy back" registration on EarthCare's first registration
filed after such release from escrow.
Buyer promises in calculating earnings in the EBITDA formula,
that it will not intentionally or through bad faith impact
earnings so as to prevent Sellers from receiving their earnout
Purchase Price.
In addition, as a condition of escrow release, the principal
executives of the Companies are to be employed (provided they
are surviving) under the terms of mutually agreeable
employment agreements, the form of which is attached hereto as
SCHEDULE F, and no material breach of this Agreement between
Buyer and Sellers shall remain unresolved.
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1.2(e) PURCHASE PRICE ALLOCATION. Buyer and Seller agree to
allocate the aggregate Purchase Price in the manner set
forth on SCHEDULE E attached hereto and made a part hereof.
1.3 To facilitate the foregoing, Buyer agrees that for two (2)
years after the Closing, all Ownership Interests acquired
hereunder should be placed in and remain the sole assets of
a Buyer subsidiary entity for which separate financial
statements are prepared and reflected in the annual EBITDA
computation referred to herein and none of the assets of the
Companies shall be transferred to Buyer or its subsidiaries
or affiliates, whether in liquidation or otherwise.
2. CLOSING.
2.1 Immediately after the Closing, Buyer shall transfer to Company by
a wire transfer through the Federal Reserve System at Closing Nine
Million Two Hundred Twenty One Thousand Eight Hundred Fifty-Seven
Dollars ($9,221,857) to Companies' creditors identified in
SCHEDULE C attached hereto and made a part hereof.
2.2 Subject to the terms and conditions of this Agreement, the
closing of the purchase and sale of the Acquisition Stock
(the "Closing") shall be held as of August 31, 1999, at the
offices of Magnum Environmental Services, Inc., 0000 X.X.
00xx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxx, or at such other time,
location and date as shall be mutually agreed upon by the
parties hereto in writing. (Such time and date is sometimes
hereinafter referred to as the "Closing Date" or "Closing".)
All term liabilities of the Companies shall be paid by
Buyer on the Closing Date as set forth in paragraph 1.2(d),
and Buyer shall be responsible for obtaining the return and
cancellation of any and all guaranties of all Companies'
debt given by Sellers. All surety bonds currently
outstanding shall remain in full force and effect.
3. PROCEDURE AT THE CLOSING. The parties hereto agree to take the following
steps in the order listed:
3.1 Sellers shall deliver to the Buyer the Ownership Interests, and
such stock certificates, endorsements, assignments and other
instruments to transfer to the Buyer good and marketable title to
the Ownership Interests, free and clear of all liens, claims and
encumbrances.
3.2 In exchange for the Ownership Interests, Buyer shall deliver to
Sellers the Purchase Price and other consideration required by this
Agreement.
3.3 The Buyer and Seller shall also deliver whatever other documents
are contemplated by the Agreement.
4. REPRESENTATIONS AND WARRANTIES OF SELLERS. In order to induce the Buyer to
enter into this Agreement and to consummate the transactions contemplated
hereunder, the Seller hereby makes the following representations,
warranties, covenants and agreements:
4.1 ORGANIZATION AND EXISTENCE.
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4.1(a) ENVIRONMENTAL SERVICES is a corporation duly organized and legally
existing in good standing under the laws of the State of Florida, and
has all requisite corporate power to carry on its business as now
conducted. The nature of the business of ENVIRONMENTAL SERVICES and the
character of the properties owned or leased by it do not require its
qualification to do business as a foreign corporation in any state.
Seller has delivered to Buyer a true and correct copy of the Articles of
Incorporation of ENVIRONMENTAL SERVICES (certified by the Secretary of
State of Florida) and by-laws of ENVIRONMENTAL SERVICES (certified by
its Secretary).
4.1(b) WORLD ENTERPRISES is a corporation duly organized and legally existing
in good standing under the laws of the State of Florida, and has all
requisite corporate power to carry on its business as now conducted. The
nature of the business of WORLD ENTERPRISES and the character of the
properties owned or leased by it do not require its qualification to do
business as a foreign corporation in any state. Seller has delivered to
Buyer a true and correct copy of the Articles of Incorporation of WORLD
ENTERPRISES (certified by the Secretary of State of Florida) and By-Laws
of WORLD ENTERPRISES (certified by its Secretary).
4.1(c) PROPERTY DEVELOPMENT is a corporation duly organized and legally existing
in good standing under the laws of the State of Florida, and has all
requisite corporate power to carry on its business as now conducted. The
nature of the business of PROPERTY DEVELOPMENT and the character of the
properties owned or leased by it do not require its qualification to do
business as a foreign corporation in any state. Seller has delivered to
Buyer a true and correct copy of the Articles of Incorporation of
PROPERTY DEVELOPMENT (certified by the Secretary of State of Florida)
and By-Laws of PROPERTY DEVELOPMENT (certified by its Secretary).
4.1(d) EAST COAST is a limited partnership duly organized and legally existing
in good standing under the laws of the State of Florida, and has all
requisite power to carry on its business as now conducted. The nature of
the business of EAST COAST and the character of the properties owned or
leased by it do not required its qualification to do business as a
foreign limited partnership in any state. Sellers have delivered to
Buyer a true and correct copy of the Limited Partnership Agreement of
EAST COAST (certified by the General Partner, Property Development).
4.1(e) WEST COAST is a limited partnership duly organized and legally existing
in good standing under the laws of the State of Florida, and has all
requisite corporate power to carry on its business as now conducted. The
nature of the business of WEST COAST and the character of the properties
owned or leased by it do not required its qualification to do business as
a foreign corporation. Sellers have delivered to Buyer a true and correct
copy of the Limited Partnership Agreement of WEST COAST (certified by the
General Partner, Property Development).
4.1(f) NORTH EAST is a limited partnership duly organized and legally existing
in good standing under the laws of the State of Florida, and has all
requisite power to carry on its business as now conducted. The nature of
the business of NORTH EAST and the character of the properties
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owned or leased by it do not require its qualification to do
business as a foreign limited partnership in any state. Sellers
have delivered to Buyer a true and correct copy of the Limited
Partnership Agreement of NORTH EAST (certified by the General
Partner of Property Development).
4.2 SUBSIDIARIES OR OTHER ENTITIES. Except as stated herein, none of the
Companies has any investments or ownership interests in any corporations,
partnerships, joint ventures or other business enterprises, other than a
limited partnership, Midway Development Limited, which entity is not part
of this agreement.
4.3 CAPITALIZATION.
4.3(a) ENVIRONMENTAL SERVICES is authorized to issue 1,000,000 shares of
common stock, no par value, of which 436 shares are issued and
outstanding at the time of the execution of this Agrement. All of
the issued and outstanding shares of capital stock of ENVIRONMENTAL
SERVICES have been duly issued, are validly outstanding, are fully
paid and nonassessable, and are held of record and beneficially by
Sellers; there are no outstanding subscriptions, options, warrants
or rights to receive, purchase or subscribe to, or securities
convertible into or exchangeable for, any issued or unissued shares
of the capital stock of ENVIRONMENTAL SERVICES. ENVIRONMENTAL
SERVICES has no liability for dividends declared and unpaid. Prior
to Closing, the Sellers shall not, and shall not permit
ENVIRONMENTAL SERVICES to, issue or enter into any subscriptions,
options, agreements or other commitments in respect of the
issuance, transfer, sale or encumbrance of any shares of the
ENVIRONMENTAL SERVICES capital stock.
4.3(b) WORLD ENTERPRISES is authorized to issue 1,000,000 shares of common
stock, $1.00 par value, of which 310 shares are issued and
outstanding at the time of the execution of this Agrement. All of
the issued and outstanding shares of capital stock of WORLD
ENTERPRISES have been duly issued, are validly outstanding, are
fully paid and nonassessable, and are held of record and
beneficially by Sellers; there are no outstanding subscriptions,
options, warrants or rights to receive, purchase or subscribe to,
or securities convertible into or exchangeable for, any issued or
unissued shares of the capital stock of WORLD ENTERPRISES. WORLD
ENTERPRISES has no liability for dividends declared and unpaid.
Prior to Closing, the Sellers shall not, and shall not permit WORLD
ENTERPRISES to, issue or enter into any subscriptions, options,
agreements or other commitments in respect of the issuance,
transfer, sale or encumbrance of any shares of the WORLD
ENTERPRISES capital stock.
4.3(c) PROPERTY DEVELOPMENT is authorized to issue 300 shares of common
stock, $1.00 par value, of which 100 shares are issued and
outstanding at the time of the execution of this Agreement. All of
the issued and outstanding shares of capital stock of PROPERTY
DEVELOPMENT have been duly issued, are validly outstanding, are
fully paid and nonassessable, and are held of record and
beneficially by Sellers; there are no outstanding subscriptions,
options, warrants or rights to receive,
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purchase or subscribe to, or securities
convertible into or exchangeable for, any
issued or unissued shares of the capital
stock of PROPERTY DEVELOPMENT. PROPERTY
DEVELOPMENT has no liability for dividends
declared and unpaid. Prior to Closing, the
Sellers shall not, and shall not permit
PROPERTY DEVELOPMENT, to issue or enter into
any subscriptions, options, agreements or
other commitments in respect of the
issuance, transfer, sale or encumbrance of
any shares of the PROPERTY DEVELOPMENT
capital stock.
4.3(d) EAST COAST has a 1% general partner interest
(owned by PROPERTY DEVELOPMENT) and 99%
limited partner interests (owned by the
Sellers) issued and outstanding at the time
of the execution of this Agreement. All of
the outstanding partnership interests of
EAST COAST have been duly issued, are
validly outstanding, are fully paid, and are
held of record and beneficially by PROPERTY
DEVELOPMENT and Sellers; there are no
outstanding subscriptions, options, warrants
or rights to receive, purchase or subscribe
to, or securities convertible into or
exchangeable for, any issued or unissued
partnership interests of EAST COAST. EAST
COAST has no liability for distributions
declared and unpaid. Prior to Closing, the
Sellers shall not, and shall not permit EAST
COAST to, issue or enter into any
subscriptions, options, agreements or other
commitments in respect of the issuance,
transfer, sale or encumbrance of any
partnership interests of EAST COAST.
4.3(e) West Coast has a 1% general partner
interest (owned by PROPERTY DEVELOPMENT)
and 99% limited partner interests (owned by
the Sellers) issued and outstanding at the
time of the execution of this Agreement.
All of the outstanding partnership
interests of West Coast have been duly
issued, are validly outstanding, are fully
paid, and are held of record and
beneficially by Sellers; there are no
outstanding subscriptions, options,
warrants or rights to receive, purchase or
subscribe to, or securities convertible
into or exchangeable for, any issued or
unissued partnership interests of West
Coast. West Coast has no liability for
distributions declared and unpaid. Prior to
Closing, the Sellers shall not, and shall
not permit West Coast to, issue or enter
into any subscriptions, options, agreements
or other commitments in respect of the
issuance, transfer, sale or encumbrance of
any partnership interests of West Coast.
4.3(f) NORTH EAST has a 1% general partner
interest (owned by PROPERTY DEVELOPMENT)
and 99% limited partner interests (owned by
the Sellers) issued and outstanding at the
time of the execution of this Agreement.
All of the outstanding partnership
interests of NORTH EAST have been duly
issued, are validly outstanding, are fully
paid, and are held of record and
beneficially by PROPERTY DEVELOPMENT and
Sellers; there are no outstanding
subscriptions, options, warrants or rights
to receive, purchase or subscribe to, or
securities convertible into or exchangeable
for, any issued or unissued partnership
interests of NORTH EAST. NORTH EAST has no
liability for distributions declared and
unpaid. Prior to Closing, the Sellers shall
not, and shall not permit NORTH EAST, to
issue or enter into any subscriptions,
options, agreements or other commitments in
respect of the issuance, transfer, sale or
encumbrance of any partnership interests of
NORTH EAST.
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4.4 OWNERSHIP. Sellers have, and at the time of Closing will have, good and
marketable title to the Ownership Interests, and there are, and at the
time of Closing will be, no impediments to the sale and transfer of the
Ownership Interests to Buyer. Upon delivery of the Ownership Interests
to Buyer, by whatever instrument(s) are appropriate, the Ownership
Interests (i) shall constitute all of the issued and outstanding
Ownership Interests of the Companies, and (ii) shall be free and clear
of all security interests, liens, charges, pledges, mortgages,
encumbrances or rights of third parties whatsoever. It is noted that
the general partnership interests in the Limited Partnership shall be
deemed adequately conveyed by Sellers' transfer to Buyer of all of this
issued and outstanding capital stock of PROPERTY DEVELOPMENT, the sole
general partner of each such Limited Partnership.
4.5 FINANCIAL CONDITION. Sellers have furnished to Buyer copies of the
following consolidated financial statements of the Companies, all of
which are true and complete in all material respects and have been
prepared in accordance with generally accepted accounting principles
consistently applied (except to the extent otherwise reported):
4.5(a) A consolidated balance sheet ("Balance Sheet") of the
Companies as of December 31, 1998.
4.5(b) Consolidated statements of income and retained earnings of the
Companies for the twelve (12) months ended December 31, 1998
and for the 6-month period ended June 30, 1999. (Collectively,
the Balance Sheet and statements of income and retained
earnings are hereinafter referred to as the "Financial
Statements").
The Financial Statements are complete and correct in all
material respects and in accordance with the books of account
and records of the Companies and present fairly the financial
position of the Companies' business and the income,
stockholders' equity and cash flow of the Companies' business
at the dates and for the periods indicated.
4.5(c) Sellers warrant that the aggregate current assets of the
Companies will be sufficient to pay the aggregate amount of
current liabilities of the Companies as of the Closing Date.
Buyer agrees that any excess working capital on the Closing
Date after payment of all term debt (including principal and
interest to Closing Date) shall be distributed to Sellers as
set forth in paragraph 2.1(c). Such amount shall constitute
part of the Purchase Price.
4.6 ASSETS.
4.6(a) To Sellers' knowledge, the Companies have good and marketable
title to, and are in possession of, all of the assets,
equipment, vehicles, properties and rights, including all
properties, assets, vehicles and equipment as shown on the
Balance Sheet, free and clear of all liabilities, mortgages,
liens, pledges, security interests, restrictions, conditional
sales agreements, title retention agreements, charges or
encumbrances, except as shown on the Balance Sheet and in
Companies' records. Sellers represent its records to the
extent available, to Sellers' knowledge, set forth a list of
all material items of equipment, vehicles, properties,
containers, machinery, shop equipment, welders, grinders,
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work benches, jacks, stands, parts, office furniture,
fixtures, computer hardware/software and equipment owned by
the Companies as of the date of this Agreement and used in
connection with its business operations (hereinafter
sometimes referred to as the "Operating Equipment").
4.6(b) To Sellers' knowledge all of the Operating Equipment is in
good operating condition (normal wear and tear excepted),
has been well maintained, and is in adequate condition to
service the Companies' Customer Accounts (as herein defined)
and to conduct the operations of the Companies existing on
the Closing Date.
4.6(c) To Sellers' knowledge, there has not been any material
change in the Operating Equipment, since the inspection of
such Operating Equipment by Buyer on August 31, 1999, and
there shall not be any material change in the Operating
Equipment, in the aggregate, subsequent to a final
inspection of the Operating Equipment to be performed by
Buyer and Sellers prior to Closing.
4.6(d) The transactions contemplated by this Agreement do not and
will not subject any of the Companies or the Buyer to any
claim or liability for any obligation, debt or contract,
other than as specifically disclosed in this Agreement or
the Schedules attached hereto.
4.7 CUSTOMER ACCOUNTS, MUNICIPAL CONTRACTS AND RELATED MATTERS.
4.7(a) Customer Accounts are the commercial, industrial,
municipal, and residential accounts of the Companies
pursuant to which the Companies provide waste removal,
collections, incorporation, storage and/or disposal. To
Sellers' knowledge, said Customer Accounts are listed on
Companies' books and records.
4.7(b) To Sellers' knowledge, all written service agreements,
franchises, licenses or other contracts, if any, to which
any of the Companies is a party and which related to
Customer Accounts is contained in Companies' books and
records. Original copies of all such contracts shall be
delivered by the Sellers to the Buyer no later than the
Closing Date, and such copies shall be true, accurate and
complete and shall include all amendments, supplements or
other modifications to such contracts. To the knowledge of
the Sellers, none of the Companies or any other party to any
of the Companies' municipal contracts or Customer Accounts
is in material default or alleged to be in material default
thereunder and there exists no condition or event which,
after notice or the lapse of time or both, would constitute
such a default.
4.7(c) Except as otherwise disclosed, the Sellers know of no oral
or written communication, fact, event or action which exists
or has occurred within 30 days prior to the date of
execution of this Agreement, which would tend to indicate
that any current customers of any of the Companies intends
to terminate their business relationship with any of the
Companies.
4.8 MATERIAL CONTRACTS. To Sellers' knowledge, none of the Companies is a
party to or bound by any material written or oral (i) contracts not
made in the ordinary
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course of business; (ii) employment contracts, other than those
terminable at will; (iii) contracts with any labor union or
association; (iv) leases with respect to any property, real or
personal, whether as lessor or lessee, except intercompany or as
disclosed; (v) continuing contracts for the future purchase of
materials, supplies or equipment in excess of the requirements of its
business now booked; or (vi) contracts or commitment for capital
expenditures heretofore otherwise disclosed.
4.9 EMPLOYEES - LABOR MATTERS. The Companies have generally enjoyed a good
employer-employee relationship with employees. To Sellers' knowledge,
there exists no pending or threatened actions by any employees alleging
sex, age, race, or other discriminatory practices, no current effort to
organize these employees into collective bargaining units, and no
collective bargaining agreement is now in effect.
4.10 INSURANCE. The Companies maintain in effect insurance covering assets
and businesses and any liabilities relating thereto in an amount
believed adequate by the Sellers, and such insurance coverage shall be
maintained by the Companies through and shall survive the Closing Date.
Between the date hereof and the Closing Date, the Sellers shall cause
the Companies to furnish to the Buyer such information as the Buyer
shall reasonably request regarding the Companies' insurance.
4.11 LICENSES AND PERMITS. To Sellers' knowledge, the Companies possess all
licenses and other required governmental or official approvals, permits
or authorizations, if any, the failure to possess which would have a
material adverse effect on the businesses, financial condition or
results of operations of the Companies including, without limitation,
all common carrier rights, certificates of public need, waste material
transportation permits, trademarks and trade names necessary to carry
on business as now being conducted, without known conflict with valid
licenses, permits, trademarks and trade names of others. All such
licenses and permits are in full force and effect, and to Sellers'
knowledge, no violations are or have been recorded in respect to any
thereof, and no proceeding is pending, or to the knowledge of Sellers
threatened, to revoke, suspend or otherwise limit such licenses or
permits, except for the items identified in SCHEDULE G. To Sellers'
knowledge, all licenses and permits will survive the Closing of the
transactions contemplated by this Agreement.
4.12 TAX MATTERS. The Companies have filed all federal, state, franchise
tax, and other tax returns which are required to be filed and have paid
or have made provision for the payment of all taxes which have or may
become due pursuant to said returns. All taxes, including, without
limitation, withholding and social security taxes due with respect to
all of the Companies' employee, federal and state income tax
liabilities, corporate franchise taxes, due, payable or accrued by each
of the Companies on or before the Closing Date have or will be paid.
The Companies have filed all reports required to be filed with all such
taxing authorities. Sellers shall be responsible for any tax liability
attributable to operations of the Companies prior to Closing; in such
event, Companies agree to provide Sellers with prompt access to
Companies' records and personnel at no expense to Sellers. The parties
agree that if Buyer whishes to maintain the Subchapter S status of the
Corporations, there shall be an interim closing of the books as of the
Closing Date so that Sellers shall be charged with only the profit of
the Corporations from the beginning of the fiscal year to the Closing
Date. Preparation of the final tax returns for the Subchapter S
Corporations shall be
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completed by Sellers' accountants at Corporations' expense.
Similar closing of the books shall be had with respect to
the Limited Partnerships.
Buyer and Sellers agree to cause the Companies to make the
election provided by Section 338(h)(10) of the Internal
Revenue Code of 1986 as amended and Treasury Regulation
Paragraph 1.338(h)(10)-1(d)(1), and in connection therewith,
the parties agree that the allocation of the Purchase Price
shall be used in connection with the preparation of tax
returns reflecting the sale and purchase contemplated hereby.
Buyer agrees to reimburse Sellers for, and provide
simultaneously for the payment of, any and all additional
taxes, interest, and penalties incurred as a result of Sellers
agreeing to make such election and to indemnify Sellers
therefor together with any expenses incurred as a result
thereof including reasonable attorneys' and accountants' fees.
4.13 LITIGATION. To the knowledge of Sellers, none of the
Companies has received any notices of material default and
none of the Companies is in material default of (i) any
order, writ, injunction or decree of any court, or any
federal, state, municipal or other governmental department,
commission, board, bureau or instrumentality, or (ii) any
agreement or obligation to which any of the Companies is a
party or by which any of the Companies is bound or to which
any of the Companies or any of the property of the Companies'
may be subject. To Sellers' knowledge, there are no material
outstanding claims, actions, suits, proceedings or
investigations pending or, to the knowledge of the Sellers,
threatened against any of the Companies or which affect any of
the Companies or any assets or property of the Companies, at
law or in equity before or by any federal, state, municipal
court or other governmental department, authority, commission,
board, bureau, agency or instrumentality.
4.14 COMPLIANCE WITH LAWS. To Sellers' knowledge, the Companies
are in compliance in all material respects with all federal,
state, and local laws, ordinances, regulations, rules, and
orders applicable to the Companies or to assets of the
Companies including, without limitation, all laws and
regulations relating to the protection of the environment,
anti-competitive practices, discrimination, employment, and
wage and hour practices. None of the Companies has received
notification of any asserted past or present material failure
to comply with any of such laws or regulations.
4.15 ENVIRONMENTAL MATTERS. To the best of Seller's knowledge, and
not having conducted any environmental assessment, audit or
investigation.
4.15(a) During the period of xxxx Xxxxxx owned or
operated any facility of the Companies,
Seller has been in material compliance with
all currently applicable federal, state and
local statutes, rules, ordinances and other
laws and regulations relating to
environmental matters;
4.15(b) No releases or threats of releases of any
toxic, hazardous or carcinogenic substances
or medical wastes (including, but not limited
to, petroleum products) to the environment
from or at any facility of any of the
Companies have occurred which have not been
remediated to the extent required under
currently applicable federal, state and local
statutes, rules, ordinances and other laws,
regulations, permits or orders of a
governmental authority;
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4.15(c) None of the Companies have received any written notice to the
effect that the landfills and other disposal sites to which
waste material transported by any of the Companies has been
delivered are not properly licensed pursuant to applicable
environmental laws to receive the material disposed of
therein.
4.15(d) No pending or threatened, claims, assessments or litigation
notices have been received by Seller with respect to any
alleged noncompliance with any of the Environmental Laws with
respect to the ownership or operation of any facility of any
of the Companies or any of the other Acquired Assets.
4.16 NO BROKERS' OR AGENT'S FEES. No agent, broker, finder, representative
or other person or entity acting pursuant to authority of the Sellers
will be entitled to any commission or finder's fee in connection with
the origination, negotiation, execution or performance of the
transactions contemplated under this Agreement.
4.17 NO MATERIAL ADVERSE CHANGE. To Sellers' knowledge from January 1, 1999,
there has not been: (i) any material adverse change in the financial
condition, assets, liabilities, business or results of operations of
any of the Companies; (ii) to the knowledge of the Sellers, any
threatened or prospective event or condition of any character
whatsoever which could materially and adversely affect the business,
financial condition or results of operations of any of the Companies;
(iii) any sale or other disposition of any of the Companies' (iii) any
sale or other disposition of any of the Companies' assets other than in
the ordinary course of business; or (iv) any uninsured damage,
destruction or loss materially and adversely affecting the property,
business or prospects of any of the Companies.
4.18 DUE AUTHORIZATION AND ABSENCE OF BREACH. This Agreement and all other
agreements of the Sellers contemplated hereunder constitute valid and
binding obligations of the Sellers, enforceable in accordance with
their respective terms. Neither the execution and delivery of this
Agreement (or any agreement contemplated hereunder) nor the
consummation of the transactions contemplated hereby will: (i) conflict
with or violate any provision of the Articles of Incorporation or
By-Laws of any of the Companies; (ii) conflict with or violate any
decree, writ, injunction or order of any court or administrative or
other governmental body which is applicable to, binding upon or
enforceable against any of the Companies or Sellers.
4.19 AUTHORITY TO CONTRACT. Sellers have the full power, right and authority
to enter into and perform this Agreement without the consent of any
person, entity or governmental agency.
4.20 ACCURACY OF THE INFORMATION FURNISHED BY THE SELLERS. No
representation, statement or information made or furnished by the
Sellers to the Buyer, including those contained in this Agreement and
the various schedules attached hereto and the other information and
statements referred to herein, contains or shall contain any materially
untrue statement of any material fact.
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5. REPRESENTATION AND WARRANTIES OF BUYER. In order to induce the Sellers
to enter into this Agreement and to consummate the transactions
contemplated hereunder, the Buyer hereby makes the following
representations, warranties, covenants and agreements:
5.1 ORGANIZATION AND EXISTENCE. Buyer is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Delaware and has all the requisite corporate
power and authority to carry on its business as now conducted
and to consummate the transactions contemplated by this
Agreement.
5.2 AUTHORITY TO CONTRACT. The execution, delivery and performance
of this Agreement by Buyer has been duly approved by its Board
of Directors, and no further corporate action is necessary on
the part of Buyer to consummate the transactions contemplated by
this Agreement, assuming due execution of this Agreement by the
parties.
5.3 NO BROKER'S OR AGENT'S FEES. No agent, broker, finder,
representative or other person or entity acting pursuant to the
authority of the buyer will be entitled to any commission or
finder's fee in connection with the origination, negotiation,
execution or performance of the transactions contemplated under
this Agreement.
5.4 ACCURACY OF INFORMATION FURNISHED BY BUYER. No representation,
statement or information made or furnished by Buyer to the
Sellers in this Agreement, or in connection with the
transactions contemplated hereby including, without limitation
copies of the Buyer's filings with the Securities and Exchange
Commission, contains, or shall contain any untrue statement of
any material fact or omits or shall omit any material fact
necessary to make the information contained herein true.
5.5 REGISTRATION. The EarthCare common stock delivered to Sellers on
the Closing Date has been duly registered with the Securities
and Exchange commission on Form S-1 effective December 9, 1998,
and such registration statement is true and correct in all
material respects and does not omit to state any material
information necessary to make such registration statement not
misleading. Buyer agrees to maintain the currency of the
registration statement and to provide Sellers with sufficient
copies of the prospectus, as the same may be supplemented or
stickered from time to time to enable Sellers to sell the
registered shares for one year from Closing Date or until sold.
Buyer also agrees to comply with the reporting requirement of
the Securities Exchange Act of 1934 so that Sellers may sell the
unregistered shares in accordance with Rule 144 thereunder.
6. ADDITIONAL AGREEMENT OF THE SELLERS. The Sellers further agree with
the Buyer as follows:
6.1 ACCESS TO OFFICES AND RECORDS. The Sellers shall cause the
Companies to afford representatives of the Buyer, from and after
the date of execution of this Agreement, full access, during
normal business hours and upon reasonable notice, to all
offices, books, properties, contracts, documents and records of
the Companies and to furnish to the Buyer or its representatives
all additional information, including financial or operating
information with respect to the business and affairs of the
Companies that the Buyer or its representatives may reasonably
request. Sellers acknowledge that Buyer is a publicly-traded
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corporation and that Buyer will be required under the applicable
securities laws to make public disclosure of detailed financial data
concerning the Companies' operations. Prior to the Closing Date, Buyer
has Sellers' permission to disclose publicly: (i) the amount of the
Companies' revenues; and (ii) such other information as shall be
included in any press release of Buyer which Sellers approve in
advance of being released; such approval shall not be unreasonably
withheld. Provided, however, that any furnishing of such information
to the Buyer and any investigation by the Buyer shall not affect the
right of the Buyer to rely solely upon the representations and
warranties made by the Sellers in or pursuant to this Agreement; and
provided further, that the Buyer: (i) will hold in strict confidence
all documents and information concerning the Companies so furnished;
and (ii) will promptly return all such documents and all copies to the
Companies if this Agreement is not closed or for no reason.
6.2 CONDUCT OF BUSINESS PENDING THE CLOSING. From and after the
execution and delivery of this Agreement and until the Closing Date,
except as otherwise provided by the prior written consent or approval
of the Buyer:
6.2(a) The Sellers will cause the Companies to conduct business and
operations in the manner in which the same has heretofore been
conducted and Sellers will use their best efforts to cause the
Companies to: (i) preserve the Companies' current business
organization intact; (ii) keep available to the Buyer the
services of the Companies' current employees and the
Companies' agents and distributors; and (iii) preserve the
Companies' current relationship with customers, suppliers and
others having business dealings with the Companies.
6.2(b) The Sellers will cause the Companies to maintain all its
properties in customary repair, order and condition,
reasonable wear and use excepted, and will maintain its
existing insurance upon all of its properties and with respect
to the conduct of its business in such amounts and of such
kinds comparable to that in effect on the date of this
Agreement.
6.2(c) The Sellers will take action to insure that none of the
Companies will: (i) pay any bonus or increase the rate of
compensation of any of the Companies' employees or enter into
any new employment agreement or amend any existing employment
agreement; (ii) make any general increase in the compensation
or rate of compensation payable or to become payable to the
Companies' hourly-rated employees; (iii) sell or transfer any
of the Companies' assets, except in the ordinary course; (iv)
obligate itself for capital expenditures other than in the
ordinary course of business and not unusual in amount; or
(v) incur any material obligations or liabilities, which are
not in the ordinary course of business, or enter into any
material transaction.
6.2(d) The Sellers shall not, and shall not permit any of the
Companies to, issue or enter into any subscriptions, options,
agreements or other commitments in respect of the issuance,
transfer, sale or encumbrance of any shares of the Acquisition
Stock.
6.3 EXECUTION OF FURTHER DOCUMENTS BY SELLERS. From and after the
Closing, upon the reasonable request of the Buyer and at the Buyer's
cost and expense,
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the Sellers shall execute, acknowledge and deliver such
documents as may be appropriate to carry out the
transactions contemplated by this Agreement.
6.4 INDEMNIFICATION BY SELLERS.
6.4(a) To the extent specified herein, the Sellers will indemnify
and hold the buyer harmless from and against any and all
damage, loss, cost, deficiency, assessment, liability or
other expense (including reasonable attorney's fees, costs of
court and litigation expenses, if any) suffered, incurred or
paid by the Buyer as a result of:
6.4(a)(1) The material untruth, inaccuracy, breach or
violation of any representation, warranty, covenant
or other obligation of the Sellers set forth in or
made in connection with this Agreement;
6.4(a)(2) The assertion against the Buyer or any of the
Companies of any material liability or obligation
of any of the Companies or of any claim relating to
the operation of the Companies, businesses, prior
to the Closing Date, whether absolute or
contingent, matured or unmatured, known or unknown
as of the Closing Date (including, without
limitation, customer claims or disputes).
6.4(a)(3) No claims for indemnification by Buyer shall be
payable until the aggregate thereof reaches
$50,000 and only claims in excess of $50,000 shall
be subject to indemnification. The maximum amount
payable to Buyers for Sellers' claims of
indemnification shall be $500,000.
6.4(b) The Buyer shall give written notice to the Sellers of
any claim, action, suit or proceeding relating to the
indemnity herein provided by Sellers not later than ten
(10) days after Buyer has received notice thereof.
Sellers shall have the right, at his option, to
compromise or defend, at his own expense and by his own
counsel (which counsel shall be reasonably satisfactory
to Buyer), any such action, suit or proceeding. Buyer
and Sellers agree to cooperate in any such defense or
settlement and to give each other full access to all
information relevant thereto.
6.4(c) The Holdback Cash shall constitute security for
Sellers' indemnification. If Buyer makes no claim of
breach of any of Sellers' representations, warranties
or covenants, or of any deficiency resulting from
uncollectible accounts receivable, then the Holdback
Escrow shall be delivered in full or in part to Sellers
one hundred eighty (180) days after the Closing Date,
along with an assignment to Sellers of the
uncollectible accounts receivable.
6.4(d) Except as herein expressly provided, the remedies
provided in this paragraph shall be cumulative and
shall not preclude assertion by the Buyer of any other
rights or the seeking of any other remedies available
against the Sellers at law or in equity.
7. ADDITIONAL AGREEMENT OF THE BUYER.
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7.1 EXECUTION OF FURTHER DOCUMENTS BY BUYER. From and after
the Closing, upon reasonable request of Sellers, Buyer
shall execute, acknowledge and deliver to Sellers all
such further documents as may be appropriate to carry out
the transactions contemplated by this Agreement.
7.2 INDEMNIFICATION BY BUYER.
7.2(a) The Buyer will indemnify and hold the Sellers
harmless from and against any and all damages,
loss, cost, deficiency assessment, liability or
other expense (including reasonable attorney's
fee, costs of court and costs of litigation, if
any) suffered, incurred or paid by the Sellers as
a result of:
7.2(a)(1) The untruth, inaccuracy, breach or
violation of any representation,
warranty, covenant or other obligation
of the Buyer set forth in or made in
connection with this Agreement;
7.2(a)(2) The assertion against the Sellers of
any liability or obligation of the
Buyer or any of the Companies or of any
claim relating to the operation of the
Companies' business subsequent to the
Closing Date (including, without
limitation, guaranties, customer claims
or disputes); or
7.2(a)(3) As a result of any claim being made by
a creditor of Companies against Buyer
based on a personal guaranty of the
indemnity.
7.2(b) The Sellers shall give written notice to the
Buyer of any claim, action, suit or proceeding
relating to the indemnity herein provided by
Buyer not later than ten (10) days after Sellers
have received notice thereof. Buyer shall have
the right, at its option, to compromise or
defend, at its own expense and by its own counsel
(which counsel shall be reasonably satisfactory
to Sellers), any such action, suit or proceeding.
Sellers and Buyer agree to cooperate in any such
defense or settlement and to give each other full
access to all information relevant thereto.
7.2(c) Except as herein expressly provided, the
remedies provided in this Paragraph hereof shall
be cumulative and shall not preclude assertion by
the Sellers of any other rights or the seeking of
any other remedies available against the Buyer at
law or in equity.
8. CONDITIONS TO OBLIGATIONS OF THE BUYER. The obligations of the
Buyer to effect the transactions contemplated by this
Agreement shall be subject to the fulfillment at or prior to
the Closing Date of each of the following conditions:
8.1 VALIDITY OF SELLERS' REPRESENTATIONS. All representations
and warranties of the Sellers contained in this Agreement
or otherwise made in writing pursuant to this Agreement
shall have been true and correct at and as of the date
hereof and they shall be true and correct at and as of
the Closing Date, with the same force and effect as
though made at and as of the Closing Date.
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8.2 PRE-CLOSING OBLIGATIONS. The Sellers shall have performed and
compiled with all the obligations and conditions required by this
Agreement to be performed or complied with by Sellers at or prior
to the Closing Date, including the execution and delivery of all
documents and contracts required to be delivered at or before the
Closing Date pursuant to this Agreement.
8.3 OPINION OF COUNSEL FOR SELLERS. The Buyer shall have received a
favorable opinion from counsel for the Sellers limited to State of
Florida and federal law, dated the date of the Closing, in form
satisfactory to counsel for the Buyer, to the effect that:
8.3(a) Each of the Companies is a duly organized and legally
existing in good standing under the laws of its respective
jurisdiction, and it has the power and authority to carry
on its business as now being conducted and to own or hold
under lease, or otherwise, its assets.
8.3(b) This Agreement has been duly executed and delivered by the
Sellers, and constitutes a valid, enforceable and binding
obligation of the Sellers pursuant to the terms of this
Agreement.
8.3(c) Except as otherwise disclosed in this Agreement, counsel
does not know of any action, suit, investigation or other
legal, administrative or arbitration proceeding pending
against the Sellers or any of the Companies, or which
questions the validity or enforceability of this Agreement
or of any action taken or to be taken pursuant to or in
connection with this Agreement or any agreement
contemplated herein.
8.3(d) To the knowledge of such counsel, and without inquiry, no
consent, authorization, license, franchise, permit,
approval or order of any court or governmental agency or
body, other than those obtained by Sellers and delivered
to the Buyer prior to or on the date of the opinion, is
required for the sale of the Acquisition Stock by the
Sellers pursuant to this Agreement.
8.3(e) To the knowledge of such counsel, and without inquiry,
the execution and performance of this Agreement by the
Sellers will not violate: (i) the Organizational Documents
or the By-Laws, if applicable, of any of the Companies, or
(ii) any order of any court or other agency of government
known to said counsel.
8.3(f) The instruments of conveyance and assignments executed by
the Sellers to the Buyer pursuant to this Agreement are
adequate to convey the Ownership Interests, free and clear
of all liens, claims or encumbrances known to such counsel
after conducting a UCC-11 lien search with the offices of
the Secretary of State for the State of Florida, and the
offices of the County Clerk for the Counties in which
Companies do business, and
8.3(g) To the knowledge of such counsel (after reasonable
investigation), Sellers own all of the issued and
outstanding Ownership Interests of the Companies.
The form of such opinion is set forth on SCHEDULE H attached
hereto and made a part hereof.
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8.4 RECEIPT BY THE BUYER OF NECESSARY CONSENTS. All necessary
consents or approvals of third parties to any of the
transactions contemplated hereby shall have been obtained, and
satisfactory evidence of such consents or approvals shall have
been delivered to the Buyer at Closing.
8.5 RESIGNATION OF OFFICERS AND DIRECTORS. Buyer shall have
received such resignations of officers and directors of the
Companies as shall have been requested by Buyer in the form
attached hereto as SCHEDULE I and made a part hereof.
8.6 STOCK PURCHASE. On Closing, the obligations of the
signatories shall be consummated.
9. CONDITIONS TO OBLIGATIONS OF THE SELLERS. The obligations of the
Sellers to effect the transactions contemplated by this Agreement shall
be subject to the fulfillment at or prior to the Closing Date of each
of the following conditions:
9.1 VALIDITY OF BUYER'S REPRESENTATIONS. All representations and
warranties of the Buyer contained in this Agreement or
otherwise made in writing pursuant to this Agreement shall
have been true and correct at and as of the date hereof and
they shall be true and correct at and as of the Closing Date,
with the same force and effect as though made at and as of the
Closing Date.
9.2 PRE-CLOSING OBLIGATIONS. The Buyer shall have performed and
complied with all the obligations and conditions required by
this Agreement to be performed or complied with by Sellers at
or prior to the Closing Date, including the execution and
delivery of all documents and contracts required to be
delivered at or before the Closing Date pursuant to this
Agreement.
9.3 CORPORATE AUTHORITY OF BUYER. The execution and performance
of this Agreement by the Buyer shall have been duly and
legally authorized in accordance with applicable law, and the
Buyer shall have furnished to counsel for the Sellers
certified copies of resolutions adopted by the Board of
Directors of the Buyer authorizing and proving the execution
and delivery of this Agreement and performance of the
transactions contemplated hereunder.
9.4 OPINION OF COUNSEL FOR BUYER. The Sellers shall have received
a favorable opinion from counsel for the Buyer dated the date
of the Closing, in form satisfactory to counsel for the
Sellers, to the effect that:
9.4(a) The Buyer is a corporation, duly organized and
legally existing in good standing under the laws of
the State of Delaware, and it has the corporate
power and authority to carry on its business as now
being conducted and to carry out the transactions
and agreements contemplated hereby.
9.4(b) All corporate and other proceedings required to be
taken by or on the part of the Buyer in order to
authorize it to perform its obligations hereunder
have been duly and properly taken, including any
necessary approval or authorization by the Board of
Directors of the Buyer.
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9.4(c) This Agreement has been duly executed and delivered by the
Buyer and constitutes a valid, enforceable and binding
obligation of the Buyer pursuant to the terms of this
Agreement.
9.4(d) Except as otherwise disclosed in this Agreement, said counsel
does not know of any action, suit, investigation or other
legal, administrative or arbitration proceeding which
questions the validity or enforceability of this Agreement or
of any action taken or to be taken pursuant to or in
connection with this Agreement or any agreement contemplated
herein.
9.4(e) The execution and performance of this Agreement by the Buyer
will not violate: (i) the Articles of Incorporation or the
By-Laws of the Buyer; or (ii) any order of any court or other
agency of government know to said counsel.
10. SELLERS' NON-COMPETE AND NON-SOLICITATION AGREEMENT. As inducement to
Buyer to enter into this Agreement and perform its obligations
hereunder, and in consideration of the payments to Sellers pursuant to
this Agreement, the Sellers agree that Sellers will not, for a period
of two (2) years from the Closing Date, directly or indirectly, in each
case, within the County of Broward and the County of Palm Beach, State
of Florida; (whether as owner, partner, shareholder, agent, employee,
independent contractor, consultant or otherwise): (i) engage in any
business which directly competes with business of the Buyer, or with
any subsidiary of Buyer as of the Closing Date, (ii) solicit any party
who is or was a customer or supplier of the Company on the Closing Date
for services of any type or quality being provided by the Company;
(iii) solicit for employment any person who was or is an employee of
the Company on the Closing Date, or (iv) either directly or indirectly,
divulge, disclose, or communicate to any person, firm or corporation in
any manner whatsoever any confidential information relating to the
business of Buyer, or the Company for a period of two (2) years from
date of Closing. The term, "confidential information", as used herein,
means all information of a business or technical nature relative to the
business of Buyer, the business of any customers of the Company or any
business of any person, firm or corporation which consults with, or is
affiliated with, Buyer or the Company. The term "confidential
information" shall not include information so generally known as to be
part of the public domain.
Each of the covenants contained in this Article are separate and
independent. The Sellers acknowledge and agree that Buyer's remedies at
law may be inadequate in the event of a breach or threatened breach of
the covenants set forth herein, and in such event, Buyer shall be
entitled to have an injunction issued by any court of competent
jurisdiction, enjoining and restraining each and every party concerned
therewith from the creation or continuation of such breach.
11. OTHER PROVISIONS.
11.1 EMPLOYMENT AGREEMENTS. At Closing, Buyer will enter into
written Employment Agreements with key employees of Company in
a form set forth on SCHEDULE F.
11.2 INCOMPLETE EXHIBITS. The parties hereto acknowledge and agree
(a) that many, if not all, of the schedules to be attached to
this Agreement will not have been prepared by the time of
execution of this Agreement, and (b) that consummation of the
transactions contemplated by this Agreement are subject to the
completion of such schedules by Sellers (to the extent that an
exhibit is to be completed by Sellers, such schedule must be
reasonably acceptable to Buyer) or
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Buyer (to the extent that a schedule is to be completed by Buyer, it must
be reasonably acceptable to Sellers) as the case may be, prior to or at
the Closing, pursuant to the terms of this Agreement.
11.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, obligations and agreements of the parties contained in this
Agreement, or in any writing delivered pursuant to provisions of this
Agreement, shall survive the Closing for a period of 180 days.
11.4 WAIVER OR EXTENSIONS OF CONDITIONS. The Sellers or the Buyer may extend
the time for or waive the performance of any of the obligations of the
other party, waive any inaccuracies in the representations or warranties
by the other party, or waive compliance by the other party with any of
the covenants or conditions contained in this Agreement. Any such
extension or waiver shall be in writing and signed by the Sellers and the
Buyer. Any such extension or waiver shall not act as a waiver or an
extension of any other provisions of this Agreement.
11.5 NOTICES. Any notice, request or other document shall be in writing and
sent by registered or certified mail, return receipt requested, postage
prepaid and addressed to the party to be notified at the following
addresses, or such other address as such party may hereafter designate by
written notice to all parties, which notice shall be effective as of the
date of posting:
(i) If to the Buyer:
EarthCare Company
00000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Copy to:
Xxxxxx X. Xxxx, Esq.
00000 Xxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000-0000
(ii) If to the Sellers:
Xxxxx Xxxxxxxxx
0000 X.X. 00xx Xxxxxx
Xxxx Xxxxx, XX 00000
Copy to:
Xxxxxx X. Xxxxx, Esq.
Woods, Oviatt, Xxxxxx
Xxxxxxx & Xxxxxx LLP
000 Xxxxxxxxxx Xxxxxxxx
0 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
11.6 GOVERNING LAW. This Agreement shall be governed by the laws of the State
of Florida.
11.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs,
representatives, successors and assigns.
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11.8 HEADINGS. The subject headings of the Sections of this
Agreement are included for purposes of convenience only and
shall not affect the construction or interpretation of any of
its provisions.
11.9 COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an
original and all of which together shall constitute but one
and the same instrument.
11.10 ENTIRE AGREEMENT; MODIFICATION. This Agreement (including the
schedules attached hereto) and the documents delivered
pursuant hereto constitute the entire agreement and
understanding between the parties, and supersede any prior
agreements and understandings relating to the subject matter
hereof. This Agreement may be modified or amended by a
written instrument executed by all parties hereto.
IN WITNESS WHEREOF the parties have executed this Agreement as of the 24th day
of August, 1999.
"Sellers"
/s/
----------------------------
/s/
----------------------------
/s/
----------------------------
"Buyer"
EarthCare Company
By: /s/ Xxxxx X. Xxxxxx
--------------------------
XXXXX X. XXXXXX
President
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