EXHIBIT 2.8
STOCKHOLDER SUPPORT AGREEMENT
STOCKHOLDER SUPPORT AGREEMENT (this "Agreement"), dated as of July 2,
1998, by and between Superior Services, Inc., a Wisconsin corporation
("Parent"), and the undersigned record and beneficial owner (the "Stockholder")
of common stock, $.10 par value per share ("Company Common Stock"), of GeoWaste
Incorporated, a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Parent and the Company are entering
into that certain Agreement and Plan of Merger of even date herewith (as
amended, supplemented or replaced from time to time, the "Merger Agreement";
capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement) contemplating a business combination between a wholly-
owned subsidiary of Parent and the Company (the "Merger");
WHEREAS, as of the date hereof, the Stockholder beneficially owns an
aggregate of 1,070,776 shares (the "Owned Shares") of Company Common Stock and
desires to enter into this Agreement in order to induce Parent to enter into the
Merger Agreement; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested the Stockholder to agree to vote the Owned
Shares in favor of approval of the Merger Agreement, the Merger and the
transactions contemplated thereby and the Stockholder hereby agrees to so vote
such Owned Shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, intending to be legally bound hereby,
the parties hereto agree as follows:
1. Agreement to Vote.
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1.1 Voting. The Stockholder hereby agrees that, during the time this
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Agreement is in effect, at any meeting of the stockholders of the Company,
however called, the Stockholder shall vote the Owned Shares (a) in favor of the
adoption of the Merger Agreement and approval of the Merger; and (b) against any
Acquisition Proposal. Except for the agreement of the Stockholder to vote the
Owned Shares in accordance with this Section 1.1, nothing in this Agreement
shall restrict or affect the Stockholder, in any other capacity, including as a
director and/or officer of the Company, or otherwise require the Stockholder to
take or refrain from taking any action consistent with Section 6.9 of the Merger
Agreement or that would otherwise cause the Stockholder, in its capacity as a
director or officer of the Company, to violate his or her fiduciary duties as a
director or an officer to the Company's stockholders under applicable law.
1.2 Irrevocable Proxy. In the event that the Stockholder shall
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breach his or her covenant set forth in Section 1.1, the Stockholder (without
any further action on Stockholder's part) shall be deemed to have hereby
irrevocably appointed the Chief Executive Officer or the Chief Financial Officer
of Parent as the attorney and proxy of the Stockholder, with full power of
substitution, to vote, and otherwise act (by written consent or otherwise) with
respect to all the Owned Shares that the Stockholder is entitled to vote at any
meeting of stockholders of the Company (whether annual or special and whether or
not an adjourned or postponed meeting) or consent in lieu of any such meeting or
otherwise, to vote such Owned Shares as set forth in Section 1.1 above. THIS
PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. The
Stockholder hereby revokes, effective upon the execution and delivery of the
Merger Agreement by the parties thereto, all other proxies and powers of
attorney with respect to the Owned Shares that the Stockholder may have
heretofore appointed or granted, and no subsequent proxy or power of attorney
(except in furtherance of the Stockholder's obligations under Section 1.1
hereof) shall be given or written consent executed (and if given or executed,
shall not be effective) by the Stockholder with respect thereto so long as the
Stockholder's obligations under this Section 1.2 remain in effect.
2. Expiration. This Agreement and the Stockholder's obligations
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hereunder shall terminate on the earlier of (a) the Effective Time and (b) the
termination of the Merger Agreement in accordance with its terms.
3. Representations and Warranties.
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3.1 Representations and Warranties of Parent. Parent hereby
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represents and warrants to the Stockholder that it has full power and authority
to execute, deliver and perform this Agreement; such execution, delivery and
performance have been duly and validly authorized by the Board of Directors of
Parent, and no other corporate proceedings on the part of Parent are necessary
to authorize this Agreement or to consummate the transactions contemplated
hereby; and this Agreement has been duly and validly executed and delivered by
Parent and constitutes a legal, valid and binding agreement of Parent,
enforceable against Parent in accordance with its terms, except to the extent
(i) such enforcement may be limited by applicable bankruptcy, insolvency or
similar laws affecting creditors' rights and (ii) the remedy of specific
enforcement and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
3.2 Representations and Warranties of the Stockholder. The
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Stockholder hereby represents and warrants to Parent as follows:
(a) The Stockholder has good and valid title to the Owned Shares free
and clear of any lien, charge, encumbrance or claim of whatever nature, other
than restrictions upon resale which may be imposed by applicable securities
laws.
(b) As of the date hereof, the Stockholder beneficially owns the Owned
Shares. The Stockholder has sole voting power and sole power of disposition
with respect to the Owned Shares, with no restrictions, subject to applicable
securities laws and the terms of this Agreement, on his or her rights of
disposition pertaining thereto. The Stockholder does not have any right to
acquire, nor is he or she the beneficial owner of any other shares of Company
Common Stock or any securities convertible into or exchangeable or exercisable
for any shares of Company Common Stock, except for stock options.
(c) The Stockholder has the legal capacity, power and authority to
enter into and perform all of his or her obligations under this Agreement. The
execution, delivery and performance of this Agreement by the Stockholder will
not violate any other agreement to which the Stockholder is a party including,
without limitation, any voting agreement, stockholders agreement or voting
trust. This Agreement has been duly and validly executed and delivered by
Stockholder and constitutes a valid and binding agreement of the Stockholder,
enforceable against Stockholder in accordance with its terms, except to the
extent (i) such enforcement may be limited by applicable bankruptcy, insolvency
or similar laws affecting creditors' rights and (ii) the remedy of specific
enforcement and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(d) The execution, delivery and performance of this Agreement by the
Stockholder will not constitute a breach, violation or default (or any event
which, with notice or lapse of time or both, would constitute a default) under,
or result in the termination of, or accelerate the performance required by, or
result in a right of termination or acceleration under, or result in the
creation of any lien or encumbrance upon any of the properties or assets of
Stockholder under, any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument to which the Stockholder is a party or by
which his or her respective properties or assets are bound.
4. Certain Covenants of the Stockholder. The Stockholder hereby
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covenants and agrees as follows:
4.1 Restriction on Transfer, Proxies and Non-Interference. The
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Stockholder hereby agrees, while this Agreement is in effect, and except as
contemplated hereby, not to, directly or indirectly (i) except for transfers to
such Stockholder's family or trusts established for the benefit of such
Stockholder's family (provided that in the case of this clause (i), the
transferee of such shares agrees in writing to be bound by the terms hereof in
form reasonably satisfactory to Parent) offer for sale, sell, transfer, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the offer for sale, sale,
transfer, pledge, encumbrance, assignment or other disposition of, any of the
Owned Shares, (ii) grant any proxies, deposit any of the Owned Shares into a
voting trust or enter into a voting agreement with respect to any of the Owned
Shares or (iii) take any action that would make any representation or warranty
of the Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling the Stockholder from performing such
Stockholder's obligations under this Agreement.
4.2 Additional Shares. The Stockholder hereby agrees, while this
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Agreement is in effect, to promptly notify Parent of the number of additional
shares of Company Common Stock acquired by the Stockholder, if any, after the
date hereof, which additional shares of Company Common Stock shall be deemed
Owned Shares for all purposes of this Agreement.
4.3 No Solicitation of Transactions. From and after the date hereof,
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the Stockholder shall not, directly or indirectly, solicit, initiate or
knowingly encourage (including by way of furnishing information, other than the
Company SEC Documents), or knowingly take any other action to facilitate, any
inquiries or the making of any proposal which constitutes, or may reasonably be
expected to lead to, any Acquisition Proposal. The Stockholder shall promptly
advise Parent of the receipt of any Acquisition Proposal or if any inquiries are
received by, any information or documents are requested from, or any
negotiations or discussions are sought to be instituted or continued with, the
Stockholder.
5. Further Assurances. From time to time, at the other party's
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request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective the transactions
contemplated by Section 1 of this Agreement.
6. Miscellaneous.
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6.1 Entire Agreement; Assignment. This Agreement (i) constitutes the
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entire agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof and (ii) shall not
be assigned by operation of law or otherwise without the prior written consent
of the other party, provided that Parent may assign its rights and obligations
hereunder to any direct or indirect wholly-owned subsidiary of Parent, but no
such assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
6.2 Amendments. This Agreement may not be modified, amended, altered
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or supplemented except upon the execution and delivery of a written agreement
executed by all of the parties hereto.
6.3 Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
To the Stockholder:
Advance Xxxx Corporation
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
To Parent:
Superior Services, Inc.
One Honey Creek Corporate Center
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, General Counsel
with a copy to:
Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
6.4 Specific Performance. Each of the parties hereto recognizes and
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acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereby agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
6.5 Descriptive Headings. The descriptive headings used herein are
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inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
6.6 Severability. Whenever possible, each provision or portion of
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any provision of this Agreement will be interpreted in such manner as to be
effective and valid under
applicable law but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any provision
in such jurisdiction, and this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
6.7 No Third Party Beneficiaries. This Agreement is not intended to
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be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
6.8 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
6.9 Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
SUPERIOR SERVICES, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Chief Financial Officer
ADVANCE XXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
