Exhibit (6)(a)(5)
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE is effective as of the 1st day of
October 1998, by and among Xxxxxxx Xxxxxxxxxx, an individual, residing at 0000
Xxxxxx Xxxxx, Xxx. 000 Xxxxxx, Xx. ("Purchaser"), and General Environmental
Corporation, a Delaware corporation, with its principal place of business at 000
Xxxxx Xxxxxx Xxxxxx, XX. ("Seller").
Background:
Seller owns one hundred (100%) percent of the shares (hereinafter referred
to as the "Shares") of a Corporation named Neponset Construction Inc.
("Neponset") a Massachusetts Corporation with its principle place of business at
00 Xxxxxxx Xxxxxx, Xxxxxx, Xx. which is managed by Purchaser. Seller desires to
sell to Purchaser all of the Shares including all rights title and interest to
all assets liabilities and other obligations of Neponset. Purchaser desires to
acquire the Shares including all of the rights, title and interest to the
assets, liabilities and other obligations of Neponset on the terms and
conditions hereinafter set forth.
IN CONSIDERATION of the foregoing and the mutual covenants herein
contained, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows.
1. DEFINITIONS
The following words shall have the following meanings when used in this
Agreement:
1.1 ASSETS -- "Assets" shall mean all of the Shares of the Seller.
1.2 BUSINESS -- "Business" shall mean all operations and arrangements
relating to the conduct of the Business Unit called Neponset.
1.3 LIABILITIES -- "Liabilities" shall mean all of the liabilities of
Neponset.
1.4 BUSINESS UNIT -- "Business Unit" shall mean all contracts relating to
Neponset, all related costs, services and charges, and all of Seller's employees
supporting the Neponset contracts.
1.5 TRANSACTION DATE -- "Transaction Date" shall mean the later of
December 31, 1999 or such date as Seller and Purchaser satisfy the requirements
of any laws or required approvals relating to this transaction.
2. PURCHASE AND SALE
Subject to the terms and conditions of this Agreement, Seller hereby agrees
to sell and Purchaser hereby agrees to purchase the Shares and assume the
Liabilities associated therewith and the Business Unit.
3. PURCHASE PRICE
3.1 AMOUNT -- The entire purchase price for the Shares shall be an amount
equal to the total of the following (the "Purchase Price"):
3.1.1 $1,000 payable by check upon the execution of this Agreement;
3.1.2 As provided in Section 5 hereof, Purchaser undertakes to assume
all the Liabilities and obligations of Neponset.
3.1.3 Purchaser will transfer to Seller all shares of GEC received by
Purchaser when GEC acquired Neponset and all rights that may have accrued to
Purchaser as a result of the "spin-off" of Xxxxxxxxxx.Xxx (i.e. the non-voting
Class "B" shares) except Purchaser shall be entitled to keep 100,000 shares of
General Environmental and all rights to the Class "B" shares that may have
accrued to those shares in consideration of Purchaser's other obligations
contained in this agreement.
4. DELIVERY OF SHARES
All Shares purchased hereunder shall be delivered to a mutually agreed
escrow agent (to be held until Purchaser completes the terms of this Agreement)
by Seller to Purchaser on the Transaction Date at Escrow Agent's present place
of business in Exeter, NH.
5. ASSUMPTION OF LIABILITIES
On the Transaction Date, Purchaser agrees to assume all liabilities of
Seller related to the Shares or any other obligation of Seller, (if any),
undertaken in regard to or in support of the Business Unit. Purchaser shall
deposit the remaining 100,000 General Environmental shares and the
Xxxxxxxxxx.Xxx Inc. "B" shares with the Escrow agent together with an executed
stock power for the purpose of accomplishing the objectives of this paragraph.
6. COOPERATION
Purchaser agrees that it will cooperate with Seller to provide financial
and operating information that may be required by Seller for the purpose of GEC
and affiliate audits and other corporate reporting requirements that may be
applicable to the time frames before the Transaction Date.
7. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrant as of the date of this Agreement and as of
the Transaction Date to Purchaser that:
7.1 STATUS -- Seller is a corporation duly organized and existing under
the laws of the state of Delaware, which has full power and authority to own the
Shares.
7.2 CORPORATE AUTHORITY -- Seller has full power and authority to enter
into this Agreement and to consummate the transactions contemplated herein.
7.3 CORPORATE ACTION -- All necessary corporate action has been duly taken
by the Board of Directors and stockholders of Seller in order to authorize the
execution and consummation of this Agreement. Upon execution hereof by the
Purchaser, this Agreement shall be the legal, valid and binding obligation of
the Seller enforceable in accordance with its terms.
7.4 TITLE TO PROPERTY -- Seller has good and marketable title to all of
the Shares to be transferred hereunder, free and clear of any liabilities,
liens, encumbrances, security interests, charges, imperfections of title or
restrictions of any kind or nature whatsoever.
7.5 CONFLICTS WITH OTHER AGREEMENTS -- Neither the execution and delivery
of this Agreement nor the consummation of the sale and other transactions
contemplated hereunder will conflict with, or result in a breach of, any of the
terms and conditions or provisions of any law or any regulation, order, writ,
injunction or decree of any court or government instrumentality or the corporate
Charter or Bylaws of Seller, or of any agreement or other instrument to which
Seller is bound, or will constitute a default or result in any lien or
encumbrance on any of the assets being sold hereunder.
7.6 NO BANKRUPTCY -- No proceeding has been commenced against or by the
Seller under the federal Bankruptcy Code or any similar state statute.
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7.7 SURVIVAL -- The representations and warranties contained herein shall
survive the execution of this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants:
8.1 STATUS -- Purchaser is an individual and in good standing under the
laws of the Commonwealth of Massachusetts and has full authority to consummate
the transaction contemplated herein.
8.2 FINANCIAL STATUS - Purchaser (being the President and CEO of Neponset)
represents and warrants that the financial information provided by Purchaser and
Neponset is accurate and includes all sales and expenses of Neponset's
operations during the period which the Neponset shares were held by GEC and GEC
shall be entitled to evidence of the financial status of Neponset prior to
allowing any shares to be released from escrow.
9. CERTAIN SUBSTANTIVE PROVISIONS
9.1 BUSINESS RECORDS -- Seller shall transfer to Purchaser on the
Transaction Date all such business records of Seller pertaining to the Business
Unit and the Shares.
9.2 TRANSITION -- Seller and Purchaser will mutually cooperate to assist
Purchaser in a smooth transition of the ownership of the Shares and the Business
Unit.
9.3 INSTRUMENTS -- The sale, conveyance, transfer, assignment and delivery
of the Shares shall be affected upon execution of this Agreement by transfers of
Certificates for the Shares to the Escrow Agent.
9.4 RESALE--Purchaser agrees that if Purchaser sells Company, or
substantially all of the assets of the Company, within three years of the
Transaction Date then Purchaser shall forfeit the Stock held with the Escrow
Agent and shall furthermore pay Seller thirty-three percent of the proceeds of
the sale. This provision shall not apply if Purchaser goes out of business with
a sale of the assets of the Company to any third party.
10. MISCELLANEOUS
10.1 NOTICES -- Any notices, requests, demands or other communications
hereunder, shall be in writing and shall be deemed to have been duly given when
personally delivered or five (5) days after being mailed by United States
registered or certified mail, return receipt requested, postage prepaid, to the
following addresses:
If to Seller:
Xxxxxxx X. Xxxxx
000 Xxxxx Xxxxxx
Xxxxxx, XX. 00000
000-000-0000
If to Purchaser:
Xxxxxxx Xxxxxxxxxx
00 Xxxxxxx Xxxxxx
Boston, Mass.,
000-000-0000
10.2 EXPENSES -- Each party shall be required to pay its own expenses,
including expenses of its counsel and accountants, even in the event that the
transactions, which are the subject matter hereof, are not consummated for any
reason whatsoever.
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10.3 ENTIRE AGREEMENT, SUCCESSORS -- This Agreement constitutes the entire
agreement between the parties and there are no representations, warranties or
commitments except as provided herein. This Agreement supersedes all prior and
contemporaneous agreements, understandings, negotiations and discussions,
whether written or oral. All of the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of and be enforceable by the respective
heirs, personal representatives, successors and permitted assigns of the parties
hereto.
10.4 GOVERNING LAW -- This Agreement shall be governed by and construed in
accordance with the laws of the State of New Hampshire, excluding its principles
of conflicts of laws, and the parties hereby irrevocably submit to the
jurisdiction and venue of the courts of Rockingham County, New Hampshire to
adjudicate any dispute arising hereunder or relating hereto.
10.5 NO WAIVER -- No exercise of waiver, in whole or in part, of any right
or remedy provided for in this Agreement shall operate as a waiver of any other
right or remedy. No delay on the part of any party in the exercise of any right
or remedy shall operate as a waiver thereof.
10.6 PUBLICITY -- Seller agrees it shall not release any publicity with
respect to the transactions provided for herein or make any announcement.
10.7 LEGAL ADVICE -- Seller, Shareholders, and Purchaser acknowledge that
they have had the opportunity to consult with independent counsel of their
choice with regard to the transactions contemplated under this Agreement, prior
to the execution of this Agreement.
10.8 BACKGROUND; ENUMERATIONS AND HEADINGS -- The "Background,"
enumerations and headings contained in this Agreement are for convenience of
reference only and are not intended to have any substantive significance in
interpreting this Agreement.
10.9 NO BROKER -- Each party warrants and represents that it has not dealt
with or retained a broker in connection with this transaction and that no entity
or individual is entitled to receive a fee as the result of the consummation of
the transactions contemplated under this Agreement.
10.10 ASSIGNMENT -- This Agreement is not assignable by Seller or
Purchaser.
10.11 NO THIRD-PARTY BENEFICIARIES -- This Agreement is written solely to
set forth the respective rights and obligations of the parties hereto and is not
intended to create or convey any rights whatsoever with respect to any third
party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal effective as of the day and year first above written.
ATTEST: SELLER
________________________________ By: ________________________________(SEAL)
ATTEST: PURCHASER
________________________________ By: ________________________________(SEAL)
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