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ASSET SALE AND PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into as of the 4th day of October,
1996, by and between CBP RESOURCES, INC., a Delaware corporation ("Buyer"), and
WESTSTAR ENVIRONMENTAL, INC. (f/k/a WESTSTAR ENVIRONMENTAL PUMPING AND SEPTIC
SERVICE, INC.), a Florida corporation ("Seller").
WITNESSETH:
WHEREAS, for the consideration and upon the terms and conditions set forth
herein, the Buyer desires to purchase from the Seller and the Seller desires to
sell to the Buyer, substantially all of the assets, excluding real property
owned and utilized by the Seller in the operation of its grease trap business in
the States of North Carolina, South Carolina, Tennessee, Virginia, West
Virginia, Maryland, Alabama and District of Columbia (hereinafter referred to as
the "Business");
NOW, THEREFORE, for and in consideration of the above premises, the mutual
covenants hereinafter contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties do hereby
agree as follows:
1. Sale and Transfer of the Assets.
Terms of Transfer. Subject to the terms and conditions herein set
forth, Seller agrees to sell, convey, assign, transfer and deliver to Buyer as
the same exist on the Closing Date the following (the "Assets"):
(i) "Equipment." Those certain vehicles and related accessories
listed on Schedule 1(a)(i) attached hereto and incorporated herein by
reference;
(ii) "Accounts." Any and all contracts, agreements, arrangements,
including accounts and orders, related to the Business between Seller and
customers, suppliers and other third parties as described on Schedule
1(a)(ii);
(iii) "Business Records." All books and records relating to the
Business, including but not limited to all credit flies, books of account,
contracts, files, papers, books, warranty records, customer payment
records, purchase orders, customer orders and all other public and
confidential business records related to the Business conducted in the
Prescribed Territory described in Section 12 herein, except those files
which Seller is required by law to keep (in which case a copy shall be
delivered to Buyer); and
(iv) "Goodwill." All rights, title and interest in and to the lists
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information concerning suppliers and customers and others having business
with Seller, methods, processes, trademarks, patents and intellectual
property rights used in connection with the Assets.
All of the Assets shall be sold and delivered free and clear of any liens,
claims, pledges, security interests, mortgages or encumbrances of any kind,
except liens for current taxes not yet delinquent, liens imposed by law and
incurred in the ordinary course of the Business for obligations not yet due to
carriers, warehousemen, laborers, materialmen, and the like, and defects in
title, none of which, individually or in the aggregate, materially interfere
with the use of the Assets. Seller shall indemnify and hold Buyer harmless
against and from any and all liabilities and all Costs, as defined in Section
15, incurred by Buyer and arising out of or attributable to any such liens,
claims, pledges, security interests, mortgages, interests or defects in title.
The sale, conveyance, assignment, transfer and delivery of the Assets shall be
effected by bills of sale, assignments, or other instruments in such reasonable
or customary form as shall be requested by the Buyer and its counsel and are
reasonably satisfactory to Seller and its counsel. Seller shall at any time from
and after the Closing Date, upon the reasonable request of Buyer, execute,
acknowledge and deliver such additional conveyances, assignments, transfers or
other instruments, as may be reasonably required to assign, transfer or convey
the Assets to Buyer as contemplated by this Agreement.
2. Consideration. Buyer agrees that, subject to the terms and conditions
of this Agreement, and in full consideration for the aforesaid sale, transfer,
conveyance, assignment and delivery of the Assets to Buyer, provided that the
transactions contemplated by this Agreement are consummated, Buyer shall pay to
Seller by its company check at Closing the purchase price of Five hundred
Thousand dollars ($500,000.00).
3. Contracts with Key Customers. Buyer and Seller understand and agree
that the ability to continue to provide services to Seller's customers after the
Closing is a critical and integral part of the transaction described herein.
Accordingly, Seller shall, at its earliest opportunity, arrange for meetings to
occur prior to closing between representatives of Buyer, Seller and key
customers (specifically Food Lion) to allow the parties to explain the proposed
transaction and determine the willingness of those customers to continue to work
with Buyer after the Closing. For a period to be determined by Buyer after the
Closing, Buyer shall give good faith consideration to including on its invoices
to Food Lion wording to identify Buyer as "A Weststar Affiliate."
4. Right of First Refusal. In the event that, at any time after the
Closing, Seller, or any affiliate, or any of their shareholders should receive a
bona fide offer to purchase, or should they (or any of them) offer for sale, any
business engaged in the grease trap business, waste frying oil ("yellow grease")
business or the rendering business, Seller shall give written notice to Buyer of
the terms of any such offer or proposed sale. Buyer shall then have thirty (30)
days to negotiate with the seller of such business toward a definitive
agreement. Seller agrees to use its good faith best efforts to negotiate with
Buyer in this
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regard.
5. Assumption of Certain Obligations. Buyer shall assume, pay, perform,
defend or discharge those certain liabilities and obligations of the Seller
arising out of the Accounts and as specifically disclosed and described on
Schedule 1(a)(ii), attached hereto; provided, however, that, except as
specifically disclosed and described herein, Buyer shall not assume or pay, and
Seller shall continue to pay, perform and satisfy all other liabilities and
obligations of Seller or any affiliate or their Shareholders, including, but not
limited to, any duty to any employee to pay wages, compensation or health,
unemployment or pension benefits of any kind and all past, current or future
taxes that may be imposed or levied on the Seller related to the Business or any
deficiencies, interest or penalties in connection therewith and Seller shall
indemnify and hold Buyer harmless against and from any and all such liabilities
and all Costs, as defined in Section 15, incurred by Buyer and arising out of or
attributable to any such liabilities, all in accordance with Section 15 hereof.
6. Closing. Subject to the conditions herein, the closing ("Closing") of
the sale contemplated herein shall take place at the offices of Buyer on or
before October 18, 1996 (the "Closing Date"). The transactions contemplated by
this Agreement shall be deemed to be effective as of the close of business on
the Closing Date. At the Closing, the parties hereto will deliver such
consideration, instruments and documents as are required hereunder, together
with opinions of counsel on behalf of Buyer and Seller in form reasonably
satisfactory to the party receiving such opinion.
7. Representations and Warrantees of Seller. Seller represents, warrants
and agrees as follows:
(a) Corporate and Other Matters. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida.
The Business is duly registered and authorized to do business in Florida and any
other jurisdiction(s) where it does business. Seller has the corporate power to
enter into and perform its obligations under this Agreement. All necessary
corporate action required to be taken to authorize the execution, delivery and
performance of this Agreement by Seller has been fully and validly taken. This
Agreement constitutes the valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms.
(b) Title to Properties; Condition of Assets. The Seller has good and
marketable title to all its properties and Assets, free and clear of all liens,
mortgages and encumbrances, and no claims have been made or threatened which, if
substantiated, would make this subparagraph untrue. The Equipment being sold to
Buyer hereunder is in good operating condition and repair and is substantially
fit for the purposes for which it is being utilized. The Seller has not received
any notice of violation of any applicable zoning regulation, ordinance or other
law, order, regulation, or requirement relating to its operations of its owned
or leased properties used at the Business which has not been complied with or
corrected. Not by way of limitation, no officer or employee of Seller has
received any
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notification from the Occupational Safety and Health Administration, the
Environmental Protection Agency or from any other governmental body or agency
indicating that Seller's Business is or may be in violation of any law,
regulation or requirement.
(c) Warrantees as to Assets. Seller hereby agrees to assign to Buyer to
the extent possible all rights of Seller in and to any and all warrantees,
guarantees, and representations (express or implied) made or given by suppliers
or manufacturers in connection with Seller's acquisition of the Assets.
(d) Compliance with Law; Authorizations. Seller has not received any
notice of any violation of or non-compliance with any law, rule, regulation,
order, ordinance or requirement applicable to Seller's operation of the
Business and, to the best of the knowledge of the Seller, no such violation or
non-compliance exists. Seller owns, holds, possesses or lawfully uses in the
operation of the Business all licenses, permits, easements, rights,
applications, filings, registrations and other authorizations ("Authorizations")
which are in any manner necessary for it to conduct the Business as previously
conducted by Seller, free and clear of all liens, charges, restrictions and
encumbrances and in compliance with laws and regulations of any governmental
entities. All such Authorizations are listed on Schedule 7(d). None of such
Authorizations will be adversely affected by consummation of the transactions
contemplated hereby. All such Authorizations are renewable by their terms or in
the ordinary course of business without the need to comply with any special
qualification procedures or to pay any amounts other than routine filing fees.
(e) Taxes. Seller has filed or caused to be filed, within the time and in
the manner prescribed by law, all federal, state, local and foreign tax returns
and tax reports required to be filed by it. Such returns and reports are
accurate and complete in all material respects. All federal, state, local and
foreign income, profits, franchise, sales, use, occupancy, excise and other
taxes and assessments (including interest and penalties) reflected on such
returns payable by, or due from, the Seller on or prior to the date hereof have
been fully paid, including without limitation 1995 and prior years' ad valorem
taxes on the Assets. All 1996 personal and ad valorem property taxes on the
Assets shall be prorated between the Buyer and Seller at Closing and shall be
paid by Buyer within such time and in the manner prescribed by law. Seller will
comply with all statutes regarding payment of taxes, the failure of which could
adversely affect either the Assets or Buyer.
(f) No Breach. The execution, delivery and performance of this Agreement
by Seller does not and will not violate, conflict with or result in the breach
of any term, condition or provision of, or require the consent of any other
person under
(i) any existing law, ordinance, or governmental rule or regulation
to which Seller is subject,
(ii) any judgment, order, writ, injunction, decree or award of any
court, arbitrator or governmental or regulatory official, body or
authority which is
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applicable to Seller,
(iii) the charter documents of Seller, or
(iv) any mortgage, indenture, agreement, contract, commitment,
lease, plan, Authorization (as defined in Section 7(d)), or other
instrument, document or understanding, oral or written, to which Seller is
a party, or by which the Assets are bound or may be affected.
No authorization, approval or consent of and no registration or filing
with, any governmental or regulatory official, body or authority is required in
connection with the execution, delivery or performance of this Agreement by
Seller.
(g) No Brokers. The negotiations relative to this Agreement and the
transactions contemplated hereby have not been carried on by the Seller
utilizing the services of any person or firm or in any manner which could give
rise to any valid claim against either of the parties hereto for a brokerage
commission, finder's fee or other like payment to any person or entity. Seller
shall be responsible for and indemnify Buyer against any claims for payment(s)
to any business broker with regard to this transaction.
(h) Environmental Matters.
(i) For purposes of this section, "Environmental Laws" means any
federal, state or local statute, regulation, permit, license or order
relating to the discharge, release, threatened release, treatment,
storage, disposal or manufacture of Hazardous Substances or otherwise
relating to the pollution or contamination of the environment and
protection of health. "Hazardous Substances" means petroleum, petroleum
products, any hazardous or noxious pollutant material, substance or solid
waste, and any hazardous wastes and hazardous substances as determined in
the Comprehensive Environmental Response Compensation and Liability Act as
amended by the Superfund Amendments and Reauthorization Act, 42 U.S.C.
ss.9601, et seq.; the Resource Conservation Recovery Act as amended, 42
U.S.C. ss.6901, et seq.; the Toxic Substances Control Act as amended, 15
U.S.C. ss.2601, et seq.; and the Clean Water Act as amended, 33 U.S.C.
ss.1251, et seq.
(ii) The Seller is in compliance in all material respects with all
applicable Environmental Laws.
(iii) No lien has attached to, and no known basis exists for the
attachment or assertion of a lien against the Assets or any personal
property of the Seller related to the Business pursuant to any
Environmental Laws.
(iv) The Seller has received no written or oral notice of any
violation of any Environmental Law with respect to the Assets which would
require any remedial
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action under any Environmental Law.
(v) In the operations of the Business, the Seller has utilized
appropriately licensed haulers and transporters to dispose of any
Hazardous Substance.
(vi) The Seller is not aware of any past or present events,
conditions, circumstances, activities, practices, incidents, actions or
plans which may interfere with or prevent continued compliance with any
Environmental Laws that are currently applicable to the Seller, or which
may give rise to any common law or legal liability under any Environmental
Laws, or which might otherwise form the basis for any claim, action, suit,
proceeding, hearing or investigation, based on or related to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling, or the emission, discharge, release or threatened
release into the environment of any Hazardous Substance by the Business.
(vii) The Seller is in compliance with and has made any required
reports pursuant to any federal, state or local hazardous chemicals or
community right-to-know laws concerning Hazardous Substances including
those required by federal, state or local Occupational Safety and Health
Administration Hazard Communication Standards.
(i) Financial Statements. Seller has delivered to Buyer true, correct and
complete copies of the balance sheet of the Business for the period ending
December 31, 1995, and at December 31, 1994, and the related statements of
income and cash flow for the periods then ended and will deliver to buyer any
subsequent interim financial statements prepared by or for Seller relating to
the Business, all of which have been prepared in accordance with generally
accepted principles consistently applied throughout the periods described. Such
balance sheets fairly present the financial position, assets and liabilities of
Seller at the dates indicated.
(j) No Litigation. Except as listed on any Schedule 7(j), no litigation,
including any arbitration, investigation or other proceeding of or before any
court, arbitrator or governmental or regulatory official, body or authority is
pending or, to the best knowledge of Seller, threatened against Seller or which
relates to the Assets or the transactions contemplated by this Agreement, or
does Seller know of any reasonably likely basis for any such litigation,
arbitration, investigation or proceeding, the result of which could have an
adverse affect on Seller, the Assets or the Business.
(k) Outstanding Agreements. Except as listed on any Schedule attached
hereto, the Seller is not a party to and is not bound by any contract or
agreement adversely affecting the Business. Seller, with regard to the Business,
has performed all of the obligations required to be performed by it to date and
is not in default in any material respect under any of the agreements, leases,
contracts or other documents to which it is a party. No party with whom Seller
has an agreement which is of importance to the Business
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of Seller is in default thereunder. Except as specifically disclosed, all
contracts and agreements related to the Business are assignable without the
consent or approval of any other party.
(l) Delivery of Information to Buyer. The Seller has delivered to Buyer
complete and correct copies or summary descriptions of such, if any, of the
following, as the Seller possesses with regard to the Business: all policies of
insurance in force with respect to the Equipment; and all presently existing
contracts and commitments of the Seller.
8. Representations and Warrantees of Buyer. Buyer represents and warrants
that Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Buyer has the corporate power
to enter into and perform its obligations under this Agreement. This Agreement
constitutes the valid and binding obligation of Buyer, enforceable against Buyer
in accordance with its terms.
9. Conduct of Business Pending Closing. Seller agrees that pending the
Closing and, except as otherwise consented to or approved by Buyer in writing:
(a) Ordinary Course. Seller shall carry on the Business diligently, in the
ordinary course and substantially in the same manner as heretofore. Seller shall
use its best efforts to conduct the operations of the Business in such a manner
that on the Closing Date the representations and warranties of Seller contained
in this Agreement shall be true as though such representations and warranties
were made on and as of such date.
(b) Business and Goodwill. Seller shall use its best efforts to keep
available the services of the present employees and agents of the Business, to
preserve the organization of the Business intact, and to preserve for Buyer the
goodwill of Seller's Business suppliers, customers, and others having business
relations with it. Seller shall not provide any confidential information
concerning the Business or its properties or assets to any third party.
(c) Compliance. Seller will duly comply with all provisions of leases and
with all applicable laws, rules, ordinances and regulations which if violated
might impair the conduct of the Business or impose material liability on itself
as the owner of such Business. Seller shall cooperate with Buyer and use its
best efforts to cause all of the conditions to the obligations of Buyer and
Seller under this Agreement to be satisfied on or prior to the Closing Date.
(d) Maintenance. Seller will continue all normal repairs, servicing,
replacement, maintenance and upkeep of the Equipment. Seller will maintain all
insurance now in force covering the Equipment.
(e) Material Transactions. Within the Prescribed Territory described
herein, Seller will not enter into any material transaction, contract or
commitment other than in
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the ordinary course of business.
(f) Disclosures. Seller shall promptly disclose to Buyer any information
contained in its representations and warranties or the Schedules which, because
of an event occurring after the date hereof, is incomplete or is no longer
correct; provided, however, that none of such disclosures shall be deemed to
modify or amend the representations and warranties of Seller or the schedules
hereto for the purposes of Section 10 hereof, unless Buyer shall have consented
thereto in writing.
(g) Access. Seller shall give to Buyer's officers, employees, counsel,
accountants and other representatives free and full access to and the right to
inspect, during normal business hours, all of the premises, properties, assets,
records, contracts and other documents of or pertaining to the Business and
shall permit them to consult with the officers, employees, accountants, counsel
and agents of Seller for the purpose of making such investigation of the Seller
as Buyer shall desire to make, provided that such investigation shall not
unreasonably interfere with Seller's business operations. Seller shall furnish
to Buyer all such documents and copies of documents and records with respect to
Seller's affairs as Buyer shall from time to time reasonably request and shall
permit Buyer and its agents to make such physical inventories and inspections of
the Assets and Real Estate as Buyer may request from time to time.
10. Conditions Precedent to Buyer's Obligations. The obligations of the
Buyer under this Agreement shall, at the option of the Buyer, be subject to the
satisfaction, at or prior to the Closing, of each of the following conditions:
(a) Representations and Warranties True at Closing; Performance. All
representations and warranties of the Seller contained in this Agreement shall
be deemed to have been repeated at and as of the Closing, and shall then be true
and correct in all material respects; and the Seller shall have performed and
complied with all covenants, agreements and conditions required in this
Agreement to be performed or complied with by it at or prior to the Closing.
(b) Assignments and Bills of Sale. The Seller shall have delivered to the
Buyer duly executed bills of sale, documents of transfer and any other
instruments necessary to effect and evidence the transfer of the Assets to the
Buyer pursuant to Section 1 including, but not limited to, a General Assignment
and Xxxx of Sale.
(c) Corporate Matters. The Buyer shall have received from Seller (i) a
Certificate of Existence for the Seller from the Secretary of State of Florida
and (ii) a copy of the resolutions of the board of directors and/or shareholders
of the Seller, authorizing the execution, delivery and performance by the Seller
of this Agreement and the other documents required hereby, certified by the
Secretary or an Assistant Secretary of the Seller.
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(d) Key Employee Arrangements. Buyer shall have concluded arrangements
with such employees of Seller as Buyer may desire to secure the continued
consulting services of such individuals with Buyer following the Closing.
Specifically, Buyer shall have entered into a Consulting and Non-Compete
Agreement with Xxxxxxx Xxxxx on such terms reasonably satisfactory to Buyer and
such individual.
(e) Key Customer Arrangements. The Buyer shall have secured approval from
certain key customers of Seller on or before Closing upon terms reasonably
satisfactory to it for the acquisition of the Assets. Buyer shall exert its best
efforts to secure such approval upon terms reasonably satisfactory to it.
(f) Legislation. No statute, rule, regulation or order shall have been
enacted, entered or deemed applicable by any domestic or foreign governmental
branch, agency or body which would make the transactions contemplated hereby or
which would otherwise have a material adverse effect on the Seller after the
Closing.
(g) Approval of Schedules. The Buyer shall have reviewed and approved the
information disclosed in all of the Schedules referred to herein which have been
prepared by the Seller.
11. Conditions Precedent to Seller's Obligations. All obligations of
Seller under this Agreement are subject to the fulfillment prior to Closing of
the condition that Seller shall not have discovered any material error,
misstatement or omission (which has not been cured) in the representations and
warranties by Buyer contained in this Agreement. All representations and
warranties of Buyer contained in this Agreement shall be true as of the Closing
and all obligations and agreements required by this Agreement to be performed by
Buyer shall have been performed.
12. Noncompetition. For ten (10) years from and after the Closing Date
(the "Noncompetition Period"), Seller shall not directly or indirectly own,
manage, operate, join, control or participate in the ownership, management,
operation, or control of, as a principal, shareholder, owner, consultant or
otherwise, any entity located within the Prescribed Territory (as hereinafter
defined) that is engaged in the grease trap business, the recycling of waste
frying oil business (or "yellow grease business") and the rendering business and
any related products or services currently or previously manufactured, sold,
distributed or provided by Seller's Business as of the Closing Date ("Business
Activities"). For purposes of this Agreement, the term "Prescribed Territory"
shall mean the area within the State(s) of North Carolina, South Carolina,
Tennessee, Virginia, West Virginia, Maryland, Alabama and District of Columbia,
together with a fifty (50) mile area or radius around the border lines of such
states together with a one hundred (100) mile area or radius around any
operating facility owned, leased or operated by Buyer as of the Closing Date.
Further, Seller agrees that during such ten (10) year Noncompetition Period
within the Prescribed Territory, Seller shall not solicit or accept orders or
business relating to the Business Activities from (i) any customer or active
prospect of the Business as of the Closing
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Date or (ii) any former customer of the Business. Seller acknowledges that a
breach of any of the covenants contained in this Section 12 may result in
material irreparable injury to the Buyer for which there is no adequate remedy
at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of such a breach or threat thereof, the Buyer
shall be entitled, in addition to any other relief to which the Buyer may be
entitled, to obtain a temporary restraining order and/or preliminary and
permanent injunctions restraining the Seller from engaging in activities
prohibited by this Section 12 or such other relief as may be required to
specifically enforce any of the covenants in this Section 12. The Seller hereby
agrees and consents that such injunctive relief may be sought in any state or
federal court of record in the State of North Carolina.
In the event that, during the Noncompetition Period, Buyer decides to
discontinue providing grease trap services to any Account(s) located within the
Prescribed Territory, Buyer shall notify Seller by letter (in form as set forth
in Schedule 12 attached hereto) that Seller shall have the right to provide
those services to such Account(s), subject to the terms and conditions in such
written notice. Buyer shall use good faith efforts to economically organize any
such Accounts as to which such notice is given.
13. Tax Matters: Allocation of Purchase Price. The Buyer and the Seller
agree to allocate the aggregate purchase price in accordance with the allocation
requirements of Section 1060 of the Internal Revenue Code of 1986 and the
regulations thereunder ("the Code"). The Buyer and the Seller have considered
the values and have determined that the respective fair market values of the
Assets, subject to adjustments at Closing as provided in Section 2(b), are as
follows:
Assets Value
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Accounts $379,000.00
Equipment and Machinery 121,000.00
TOTAL $500,000.00
Each party agrees that all returns, schedules and forms (including Federal
income tax returns, schedules and forms) filed by them with respect to taxes
will be consistent with actual market values of the Assets. The Buyer and the
Seller further agree to timely file Form 8594 and to comply with all reporting
requirements as required under Section 1.1601T(h) of the Temporary Regulations
promulgated under Section 1060 of the Code.
14. Employment Matters. Except for the Consulting Agreement between Buyer
and the individual referred to in Section 10(d), which Agreement shall be
executed and delivered at Closing, Buyer shall have no obligation to hire any of
the other employees employed by Seller in connection with the business. Seller
shall retain the sole liability, which Buyer does not assume, for all salaries,
compensation, vacation time, sick time and other benefits accrued for the
benefit of its employees prior to the Closing Date.
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15. Indemnification. The liability of any party in respect of a breach of
a representation, warranty, covenant, indemnity or Agreement contained in or
arising in connection with this Agreement shall be governed by the terms of this
Section
(a) Indemnification by Seller. Seller and the individual shareholders of
Seller whose signatures appear on the signature page of this Agreement
(collectively referred to as "Seller" for purposes of this Section 15), agree to
indemnify and hold Buyer harmless against and from any and all taxes, claims,
liabilities, damages, losses, costs and expenses, including without limitation
reasonable attorneys' fees and other expenses of defending any actions or
claims, amounts of judgments and amounts paid in settlement (collectively, all
of the foregoing being called "Costs"), incurred by Buyer and arising out of, or
attributable to (i) any breach of any representation, warranty or covenant made
by Seller herein or in any certificate furnished by Seller pursuant hereto; (ii)
the existence of any lien, claim, pledge, security interest, mortgage, interest
or minor defect in title subject to which the Assets are delivered to Buyer
pursuant to this Agreement; (iii) any claim, known or unknown, arising out of,
or by virtue of, or based upon Seller's business and operations (including,
without limitation, any product liability or warranty claim arising out of the
sale or delivery of merchandise) prior to the Closing; (iv) any nonfulfillment
of any agreement of Seller hereunder; or (v) any claim arising out of or by
virtue of or based upon Seller's operation of the Business prior to the Closing
Date. Buyer shall, promptly after the service of process in a lawsuit or after
it receives notice from any third party that such party intends to assert a
claim which could result in indemnification hereunder, give Seller notice of
such claim. "Promptly" for purposes of this Section shall mean giving notice
within thirty (30) days. Seller shall have the right to assume the defense of
any such claim or lawsuit asserted against Buyer by a third party, with counsel
reasonably satisfactory to Buyer, and in such event, Seller will not be liable
to Buyer for any further legal or other expenses incurred by Buyer in connection
with the defense thereof, other than the reasonable cost of investigation or
assistance required by Buyer. Buyer may, however, participate actively, at its
sole expense, in any such lawsuit and may, during the pendency of any such
action, withhold any amounts due to Seller (as herein defined under this or any
related Agreement to offset any amount or cost as to which Seller may be
required to indemnify Buyer. If Seller so assumes the defense of any such claim
or lawsuit, all costs of the defense thereof shall thereafter be borne by Seller
and it shall have the authority to compromise and settle such claim or lawsuit
or to appeal (or cause Buyer to appeal) any adverse judgment or ruling with the
cost of such appeal to be paid by Seller; provided, however, that if any such
compromise or settlement would divest Buyer of any Asset transferred pursuant to
this Agreement or if Buyer may have any unindemnified liability arising out of
such claim or lawsuit, Seller shall have the authority to compromise or settle
such claim or lawsuit only with the written consent of Buyer, which consent
shall not be unreasonably withheld. Buyer, and Seller will cooperate fully with
each other with respect to discovery, inquiries or investigations in connection
with any claim or lawsuit (including, without limitation, any products liability
claim) for which indemnity is sought hereunder.
(h) Indemnification by Buyer. Buyer agrees to indemnify and hold Seller
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harmless against any and all Costs, as defined in Section 15(a), incurred by
Seller and arising out of or attributable to (i) any breach of any
representation, warranty or covenant made by Buyer herein or in any certificate
furnished by Buyer pursuant hereto, (ii) any nonfulfillment of any agreement of
Buyer hereunder, or (iii) any claim arising out of or by virtue of or based upon
Buyer's operation of the Business of the Seller after the Closing date, except
to the extent that such claim is one as to which Seller is required to indemnify
Buyer pursuant to this Agreement or any other document or agreement executed and
delivered pursuant hereto. Seller shall, promptly after the service of process
in a lawsuit or after it receives notices from any third party that such party
intends to assert a claim which could result in indemnification hereunder, give
Buyer notice of such claim. "Promptly" for purposes of this Section shall mean
giving notice within thirty (30) days. Buyer shall have the right to assume the
defense of any such claim or lawsuit asserted against Seller by a third party,
with counsel reasonably satisfactory to Buyer, and in such event, Buyer will not
be liable to Seller for any further legal or other expense incurred by Buyer in
connection with the defense thereof, other than the reasonable cost of
investigation or assistance required by Seller. If Buyer assumes the defense of
any such claim or lawsuit, all costs of the defense thereof shall thereafter be
borne by Buyer and it shall have the authority to compromise and settle such
claim or lawsuit or to appeal (or cause Seller to appeal any adverse judgment
or ruling with the cost of such appeal to be paid by Buyer. Buyer shall have
the right to approve any out-of-court settlement (which approval shall not be
unreasonably withheld) of any claim or lawsuit for which it does not assume the
defense, if Buyer is to be liable to Seller for indemnification hereunder with
respect thereto. Seller and Buyer will cooperate fully with each other with
respect to discovery, inquiries or investigations in connection with any claim
or lawsuit (including, without limitation, any products liability claim) for
which indemnity is sought hereunder.
16. Bulk Sales. The parties hereto acknowledge that they are not complying
with the Bulk Sales Act of the State of North Carolina or the State of Florida
in connection with this transaction. However, Seller hereby agrees to indemnify
Buyer pursuant to the terms and provisions of Section 15 from and against any
claim, loss, damage, or liability arising from said failure to comply.
17. Survival of Representations and Warranties. The representations and
warranties contained herein shall survive for a period of thirty-six (36)
months after the Closing.
18. Further Assurances. From time to time hereafter and without further
consideration, Seller shall execute and deliver such additional or further
instruments of conveyance, assignment and transfer and take such actions as
Buyer may reasonably request in order to more effectively convey and transfer
to Buyer the Assets sold to Buyer hereunder or as shall be reasonably
necessary or appropriate in connection with the carrying out of Seller's
obligations hereunder or the purposes of this Agreement. From time to time
hereafter and without further consideration, Buyer shall execute and deliver
such additional or further instruments of assumption and take such actions as
Seller may
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reasonably request in order to more effectively consummate the assumption of
the obligations of Buyer specified herein or as shall be reasonably necessary or
appropriate in connection with the carrying out of Buyer's obligations hereunder
or the purposes of this Agreement.
19. Announcements and Press Releases. Any press release or other public
announcement concerning this Agreement or the transactions contemplated herein
shall be approved by both Seller and Buyer.
20. Amendments. This Agreement may be amended or modified, only by a
written instrument executed by Buyer and Seller acting through their respective
duly authorized officers.
21. Counterparts. This Agreement may be executed simultaneously in
multiple counterparts, all of which together shall constitute one and the same
instrument.
22. Parties Bound. This Agreement shall inure to the benefit of and be
binding upon Seller and Buyer and their respective successors and permitted
assigns.
23. Notices. All notices, requests and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered by
hand or mailed, certified mail with postage prepaid:
If to Seller:
Weststar Environmental, Inc.
Xxxxx 0, Xxx 0000
Xxxxxx, XX 00000
If to Buyer:
CBP Resources, Inc.
P.0. Xxx 00000
Xxxxxxxxxx, XX 00000
Attn: President
With a copy to:
Xxxx X. Xxxxxxxx
Xxxxxxxx & Xxxxxxxx
P.0. Box 1888
Xxxxxxxxxx, XX 00000
24. Entire Agreement. This Agreement sets forth the entire understanding
of the
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parties with respect to the subject matter hereof. Any previous agreements or
understandings between the parties regarding the subject matter hereof are
merged into and superseded by this Agreement.
25. Applicable Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of North Carolina.
26. Headings. The heading to the sections of this Agreement are inserted
for convenience only and shall not affect the meaning or interpretation of this
Agreement.
27. Termination. This Agreement may be terminated and abandoned by the
mutual consents of the Boards of Directors of Buyer and Seller at any time
prior to the Closing Date, and the Board of Directors of either party may waive
any of the conditions of the obligations of any other party under this Agreement
upon a determination that any such waiver shall not be adverse to its best
interests or those of its Shareholders. This Agreement may be terminated by the
Board of Directors of either party, upon written notice to the other party, if
any of the conditions to a party's obligations to consummate the transaction
contemplated hereunder as provided, in the case of the Buyer in Section 10, and
in the case of the Seller in Section 11, shall not be reasonably capable of
being satisfied on or before the Closing Date.
28. Severability. If any term, provision, covenant or restriction
contained in this Agreement is held by a court of competent jurisdiction or
authority to be invalid, void, unenforceable or against its regulatory policy,
the remainder of the terms, covenants and restrictions contained in this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the day and year first above written.
SELLER
WESTSTAR ENVIRONMENTAL, INC.
By: /s/ Xxxxxxx X. Xxxxx,
------------------------
President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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BUYER:
CBP RESOURCES, INC.
By: /s/ Xxxxx Xxxxx
------------------------
Vice President
Xxxxxxx X. Xxxxx individually joins in the execution of this Agreement for
the purposes described herein.
/s/ Xxxxxxx X. Xxxxx
---------------------------
Xxxxxxx X. Xxxxx
B & B Plumbing and Septic Service, Inc., a Florida corporation and an
affiliate of Weststar Environmental Pumping and Septic Services, Inc., joins in
the execution of this Agreement to evidence its consent to and joinder in
Seller's representations, warranties and covenants herein.
B & B PLUMBING AND SEPTIC SERVICE, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------
President
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Schedule 1(a)(i)
Equipment
1 1989 Freightliner Tractor vin 0XXXXXXX0XX000000 (Weststar unit #28)
1 Pump Trailer unknown manufacturer SN FLT3627-HH (Weststar unit # 222)