Exhibit 99.1
AMENDATORY AGREEMENT
THIS AMENDATORY AGREEMENT (this "Agreement") is made this ____ day of
_________, 1997 by and among XXXXXX X. XXXXX, an individual ("Xxxxx"), COMPOST
AMERICA HOLDING COMPANY, INC., a New Jersey corporation ("CAHC"), WASTECO
VENTURES LIMITED, a corporation organized under the laws of the British Virgin
Islands ("Wasteco"), XXXXX X. XXXXXX, an individual ("Xxxxxx"), XXXX X. XXXXXX,
an individual ("Xxxxxx"), XXXXXX X. XXXXXXXX, XX., an individual ("Xxxxxx
Xxxxxxxx"), VRH CONSTRUCTION CORP., a New York corporation ("VRH"), XXXXXX X.
XXXXXXXX ("Xxxxxx Xxxxxxxx"), SELECT ACQUISITIONS, INC., a Colorado corporation
("Select"), and XXXXXX X. XXXXXX, an individual ("Rattie").
WHEREAS, CAHC and Wasteco executed a Stock Purchase Agreement dated as
of November 3, 1997 (the "Wasteco Stock Purchase Agreement") relating to the
purchase by Wasteco of certain common and preferred stock of CAHC;
WHEREAS, CAHC and Xxxxx executed a certain Stock Purchase Agreement
dated as of September 17, 1997 (the "Xxxxx Stock Purchase Agreement") relating
to the purchase by Xxxxx of certain common and preferred stock of CAHC (the
Xxxxx Stock Purchase Agreement and the Wasteco Stock Purchase Agreement are
sometimes collectively referred to herein as the "Stock Purchase Agreements");
WHEREAS, in connection with the transactions contemplated by the Stock
Purchase Agreements, Xxxxx, CAHC, Wasteco, Xxxxxx, Select, Wortmann, Fetter, VRH
and Rattie executed a Stockholders Agreement dated as of November 3, 1997 (the
"Stockholders Agreement");
WHEREAS, in connection with the transactions contemplated by the Stock
Purchase Agreements, CAHC and Xxxxx executed a Registration Rights Agreement
dated as of November 3, 1997 (the "Xxxxx Registration Agreement");
WHEREAS, in connection with the transactions contemplated by the Stock
Purchase Agreements, CAHC and Wasteco executed a Registration Rights Agreement
dated as of November 3, 1997 (the "Wasteco Registration Agreement") (the Xxxxx
Registration Agreement and the Wasteco Registration Agreement are sometimes
collectively referred to herein as the "Registration Agreements");
WHEREAS, CAHC, Wasteco and Xxxxx entered into various agreements and
undertakings on or about November 3, 1997 (the "Agreements and Undertakings")
and took other actions based upon the understanding that both common and
preferred stock of CAHC was being issued and that two Certificates of
Designations of Rights and Preferences (one relating to Series A Exchangeable
Preferred Stock and one relating to Series C Exchangeable Preferred Stock)
had been properly filed with the New Jersey Secretary of State and that such
Certificates permitted the issuance of the preferred stock described therein
in accordance the N.J.S.A. 14A:7-2;
WHEREAS, common stock of CAHC was issued on November 3, 1997 as
contemplated by the Stock Purchase Agreements;
WHEREAS, the two Certificates of Designation were not in fact filed
on November 3, 1997 although the parties hereto did not become aware of that
fact until November 4, 1997 or thereafter, and accordingly the Preferred
Stock was not properly issued, although certificates purporting to be
Preferred Stock were executed and delivered as provided in the Stock Purchase
Agreements;
WHEREAS, the parties intend that the Preferred Stock be issued as
contemplated by the Stock Purchase Agreements and the parties agree that the
Preferred Stock shall be issued as of the date on which the Certificates of
Designations for such Series A and Series C Preferred Stock have been filed
with the New Jersey Secretary of State in a form satisfactory to all of them;
WHEREAS, in connection with the issuance of such Preferred Stock to
Wasteco and Xxxxx, CAHC executed a certain Certificate of Amendment to the
Certificate of Incorporation, attached to which was a Certificate of
Designations of Rights and Preferences of Series A Exchangeable Redeemable
Preferred Stock (the "Series A Certificate"), which Series A Certificate was
filed in the Office of the Secretary of State of New Jersey on November 6,
1997, as amended by a Certificate of Amendment dated December 12, 1997 and
filed in the Office of the Secretary of State of New Jersey (the "Series A
Certificate of Amendment");
WHEREAS, in connection with the issuance of such Preferred Stock to
Wasteco and Xxxxx, CAHC executed a certain Certificate of Amendment to the
Certificate of Incorporation, attached to which was a Certificate of
Designations of Rights and Preferences of Series C Redeemable Convertible
Preferred Stock (the "Series C Certificate"), which Series C Certificate was
filed in the Office of the Secretary of State of New Jersey on November 6,
1997, as amended by a Certificate of Amendment dated December 12, 1997 and
filed in the Office of the Secretary of State of New Jersey (the "Series C
Certificate of Amendment");
WHEREAS, Wasteco and Xxxxx executed a certain Wasteco-Xxxxx
Agreement re: Exchange of Compost Preferred and Common Stock for EPIC Stock
(the "Wasteco-Xxxxx Agreement") dated as of November 3, 1997;
WHEREAS, Xxxxxx and Xxxxx executed a certain Optional Participation
Agreement dated as of November 3, 1997 pertaining to the registration of certain
shares of CAHC stock owned by Xxxxxx and Xxxxx respectively (the "Xxxxx
Participation Agreement") (the Wasteco Participation Agreement and the Xxxxx
Participation Agreement are sometimes collectively referred to herein as the
"Participation Agreements");
WHEREAS, Wasteco intends to assign all of its rights under this
Agreement, the Wasteco Stock Purchase Agreement, the Stockholders Agreement,
the Wasteco Registration Rights Agreement and the Wasteco Participation
Agreement as well as the Agreements and Undertakings;
WHEREAS, the parties hereto wish to be bound by the various agreements
described above as well as the Agreements and Undertakings;
WHEREAS, the parties hereto acknowledge that the Preferred Stock has
been issued on December 12, 1997 rather than on November 3, 1997; and
WHEREAS, the parties hereto wish to amend the various agreements
described above as well as the Agreements and Undertakings to (a) reflect the
true date of the issuance of the Preferred Stock, (b) make changes to avoid
prejudice to the purchasers of the Preferred Stock and (c) reaffirm the
various agreements described above as well as the Agreements and Undertakings.
NOW, THEREFORE, the parties hereto, intending to be legally bound, do
hereby covenant and agree as follows:
1. Effective Date of Stockholders Agreement. The Stockholders
Agreement shall be dated as of November 3, 1997 but shall be effective as of
December 12, 1997.
2. Amendments to Series A Certificate. CAHC, Wasteco and Xxxxx
hereby agree to the following amendments to the Series A Certificate, which
amendments are reflected in the Series A Certificate of Amendment:
a. For purposes of Paragraph 2 of the Series A Certificate,
CAHC agrees that the amount of any dividend paid pursuant to such paragraph
shall be calculated as if the Series A Preferred Stock had been issued on
November 3, 1997.
b. Subparagraph (i) of Paragraph 3(a) of the Series A
Certificate shall be amended by replacing the date "November 3, 1997" with the
date "December 12, 1997."
c. Subparagraph 4(a) on page 4 of the Series A Certificate
shall be amended by replacing the date "November 3, 1997" with the date
"December 12, 1997."
3. Amendments to Series C Certificate. CAHC, Wasteco and Xxxxx
hereby agree to the following amendments to the Series C Certificate, which
amendments are reflected in the Series C Certificate of Amendment:
a. For purposes of Subparagraph 2(b) of the Series C
Certificate, CAHC agrees that the Special Dividend (as such term is defined
in the Series C Certificate) shall be calculated as if the Series C Preferred
Stock had been issued on November 3, 1997.
b. Subparagraph (i) of Paragraph 3(a) of the Series C
Certificate shall be amended by replacing the date "November 3, 1997" with the
date "December 12, 1997."
c. The words "outstanding on November 3, 1997" in
Subparagraph 4(a) on page 4 of the Series C Certificate shall be amended by
replacing the date "November 3, 1997" with the date "December 12, 1997."
4. Amendments to Stock Purchase Agreements. CAHC, Wasteco and
Xxxxx hereby affirm that the respective representations and warranties
contained in the Stock Purchase Agreements remained true and correct in all
material respects as of December 12, 1997.
5. Amendments to Registration Agreements. CAHC, Wasteco and Xxxxx
hereby agree that, for purposes of Subparagraph 2.2(a) of the Registration
Agreements, the Closing Date shall be deemed to be November 3, 1997,
notwithstanding the date of issuance of the Series A Preferred Stock, the
Series C Preferred Stock and the Common Stock (all as defined in the
Registration Agreements).
6. Amendments to Participation Agreements. For purposes of the
Participation Agreements, the Series A and Series C Preferred Stock issued to
Wasteco and Xxxxx pursuant to the Stock Purchase Agreements, the Series A
Certificate and the Series C Certificate shall be deemed to be have been
issued on December 12, 1997.
7. Re-issuance of Stock. CAHC, Xxxxx and Wasteco hereby
acknowledge that Wasteco and Xxxxx have tendered the shares of Series A and
Series C Preferred Stock of CAHC issued to them on November 3, 1997, which
shares have been canceled of record, and that CAHC has re-issued to Wasteco
and Xxxxx the same number of shares of Series A and Series C Preferred Stock
of CAHC dated as of December 12, 1997 as contemplated by the Stock Purchase
Agreements.
8. Amendments to Related Documents. For purposes of construing the
Agreements and Undertakings, including without limitation, any of the
transactions contemplated by the Stock Purchase Agreements, the Registration
Agreements, the Series A Certificate, the Series C Certificate and the
Participation Agreements, any documents or agreements executed by any one or
more of the parties hereto in connection with such Agreements and
Undertakings is hereby amended to reflect that the Series A and Series C
Preferred Stock issued to Wasteco and Xxxxx in connection with the aforesaid
transactions was issued as of December 12, 1997.
9. Conflicts. In the event of any conflict between the terms of
this Agreement and the terms of the Stock Purchase Agreements, the
Registration Agreements, the Series A Certificate, the Series C Certificate,
the Stockholders Agreement, the Participation Agreements and any other
documents related thereto and executed by one or more of the parties hereto
in connection with the Agreements and Undertakings, the terms and provisions
of this Agreement shall control.
10. Date of Preferred Stock. All of the agreements described above
as well as the Agreements and Undertakings shall be deemed amended (a) to
reflect the issuance of the Preferred Stock on December 12, 1997, (b) to
provide that dividends on the Preferred Stock shall be calculated so that
they shall be paid as if the Preferred Stock had been issued on November 3,
1997 as provided in the Series A Certificate and the Series C Certificate,
both as amended by the Series A Certificate of Amendment and the Series C
Certificate of Amendment, both dated December 12, 1997 (the "Amended
Certificates of Designations") and filed in the Office of the Secretary of
State of New Jersey, (c) to provide that any rights available in the
Preferred Stock to the holders thereof shall be exercised solely as provided
in the Amended Certificates of Designations and (d) to provide that any
rights of the parties who are holders of the Preferred Stock set forth in
documents other than the Amended Certificates of Designations shall be
construed to provide them with an extension of up to thirty-nine days as to
any matters directly or indirectly related to the date of issuance of the
Preferred Stock, November 3, 1997, or any date related hereto.
11. Assignment to Wafra Acquisition Fund 7, L.P. Upon Wasteco's
written notification to the other parties hereto of the assignment by Wasteco
of "all of its rights of any kind and description in and to the Wasteco Stock
Purchase Agreement, the Wasteco Registration Rights Agreement, the Wasteco
Participation Agreement, the Wasteco-Xxxxx Agreement, this Agreement as well
as the Agreements and Undertakings, Wafra Acquisition Fund 7, L.P. shall be
recognized as the successor in all respects to Wasteco and Wasteco shall have
no further rights or obligations under such documents.
12. Agreements Remain in Effect. All of the agreements described
above as well as the Agreements and Undertakings shall remain fully effective
and are changed only as specifically provided herein and shall bind the party
or parties to each in all respects as originally contemplated.
13. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties
hereto have executed this Agreement as of the day and year first above written.
XXXXXX X. XXXXX
___________________________
COMPOST AMERICA HOLDING COMPANY, INC.
_____________________________
Name:
Title:
WASTECO VENTURES LIMITED
______________________________
Name:
Title:
XXXXX X. XXXXXX
______________________________
XXXX X. XXXXXX
_______________________________
XXXXXX X. XXXXXXXX, XX
_______________________________
VRH CONSTRUCTION CORP.
_______________________________
Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
XXXXXX X. XXXXXXXX
________________________________
SELECT ACQUISITIONS, INC.
________________________________
Name:
Title:
XXXXXX X. XXXXXX
______________________________________
