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EXHIBIT 10(m)
FORM OF
STOCK EXCHANGE AGREEMENT
This Stock Exchange Agreement (the "Agreement"), by and between Xxxxxx X.
Xxxxxxxxx, a Michigan resident ("Greenwood"), Xxxxx X. Xxxxxxx, a Michigan
resident ("Xxxxxxx"), and MPW Industrial Services Group, Inc., an Ohio
corporation ("MPW"), is made on this _____ day of November, 1997.
W I T N E S S E T H :
WHEREAS, Greenwood and Xxxxxxx desire to sell to MPW the 43 shares and
43 shares, respectively, of Aquatech Environmental, Inc., a Michigan corporation
("Aquatech"), common stock without par value (the "Aquatech Shares"), which
constitute all issued and outstanding shares of capital stock of Aquatech owned
by them in exchange for shares of MPW common stock, without par value (the "MPW
Shares").
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1.
SALE OF AQUATECH SHARES AND PURCHASE OF MPW SHARES
1.1 Sale Consideration.
(a) Effective as of the consummation and closing of an
initial public offering ("IPO") by MPW (the "Closing Date") and subject to the
terms and conditions of this Agreement, Greenwood and Xxxxxxx hereby agree to
sell, assign, transfer and deliver to MPW and MPW hereby agrees to purchase from
Greenwood and Xxxxxxx the Aquatech Shares free and clear of all liens,
encumbrances, claims, options, calls, pledges and other agreements or
arrangements.
(b) In full consideration for the sale of the Aquatech Shares,
Greenwood and Xxxxxxx shall receive on the Closing Date certificates for MPW
Shares representing $339,000 and $339,000, respectively, in value of MPW Shares,
based on a per share price equal to the Per Share Price to Public disclosed on
the cover page of the final Prospectus used by MPW in connection with the IPO
(the "Share Consideration"), registered in Greenwood's and Xxxxxxx'x names
accordingly. On the Closing Date, all MPW Shares and Aquatech Shares with duly
executed stock powers shall be delivered and distributed pursuant to the terms
and conditions of this Agreement.
1.2 Prior Agreements. Each of Greenwood and Xxxxxxx are a party to a
certain Amended and Restated Stock Grant and Employment Agreement, dated July 1,
1996, by and among Aquatech, MPW Industrial Services, Inc. and Greenwood and
Xxxxxxx, respectively (the "Employment
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Agreements"). The parties hereby expressly agree that (i) this Agreement
obviates and renders moot those portions of the Employment Agreements dealing
with or touching upon any aspect of ownership by Greenwood and Xxxxxxx of the
common stock of Aquatech (Sections 1 and 12 thereof), and (ii) the other
provisions of the Employment Agreements shall remain in full force and effect.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES
2.1 Representation and Warranty of MPW. MPW represents and warrants
that as of the Closing Date, MPW Shares will be duly authorized, validly issued,
fully paid and nonassessable.
2.2 Representations and Warranties of Greenwood and Xxxxxxx. Each of
Greenwood and Xxxxxxx represents and warrants to MPW that as of the Closing
Date: (i) he is the record and beneficial owner of his respective Aquatech
Shares; (ii) he has good and valid title to his respective Aquatech Shares free
and clear of all liens, encumbrances and equities of whatever character, with
full power and authority to transfer, sell, exchange or otherwise dispose of
such shares as contemplated hereby; (iii) he holds the power and authority to
enter into this Agreement as required under applicable law; (iv) he is
purchasing the MPW Shares for investment purposes and not with a view to resale
and acknowledges that the MPW Shares are "restricted securities" within the
meaning of Rule 144 under the Securities Act of 1933, as amended (the "Act");
(v) has been given access to all information concerning, and an opportunity to
make all inquiries about, MPW and the MPW Shares necessary for him to make his
investment in the MPW Shares; and (vi) will resell the MPW Shares in accordance
with the Act or pursuant to an exemption from registration under the Act.
ARTICLE 3
MISCELLANEOUS
3.1 Notices. All notices, waivers and other communications required
or permitted to be given hereunder to any of the parties by any other party
shall be in writing and shall be delivered or sent by next day delivery service,
personal delivery, or registered or certified mail, postage prepaid, addressed
as follows:
(a) If to MPW, addressed to:
MPW Industrial Services, Inc.
0000 Xxxxxxxxx Xxxx, XX
XX Xxx 000
Xxxxxx, XX 00000
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With a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
(b) If to Greenwood, addressed to:
Xxxxxx X. Xxxxxxxxx
Aquatech Environmental, Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
(c) If to Xxxxxxx, addressed to:
Xxxxx X. Xxxxxxx
Aquatech Environmental, Inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
In the case of (b) or (c), with a copy to:
Xxxx X. Xxxxxx, P.C.
Suite 250
000 X. Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000-0000
(d) Any party may from time to time designate as to itself
or himself a different address or addresses for delivery of notices,
provided that a notice of change of address shall be effective and
deemed given only upon actual receipt thereof.
(e) Any notice delivered or sent by next day delivery
service or personal delivery shall be deemed to have been given on the
date it is so delivered, and any notice delivered by registered or
certified mail shall be deemed to have been given on the date it is
received.
3.2 Execution of Further Documents. From and after the execution and
delivery of this document, upon the reasonable request of any of the parties
hereto, each of the other parties hereto shall execute, acknowledge, and deliver
all such further acts, deeds, bills of sale, certificates, assignments,
transfers, conveyances, sales, use or other transfer tax documentation, powers
of attorney, and assurances as may be required to evidence the consummation of
the transactions contemplated by this Agreement and as may be appropriate
otherwise to carry out the transactions contemplated by this Agreement.
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3.3 Expenses. Except as otherwise expressly provided herein, each
party shall pay any fees and expenses incurred by it incident to this Agreement
and in preparing to consummate the transactions contemplated hereby.
3.4 Waiver. No waiver of any right hereunder shall be effective
unless it is in a writing which specifically refers to the provision hereof
under which such right arises, and no such waiver shall operate or be construed
as a waiver of any subsequent breach, whether of a similar or dissimilar nature.
3.5 Amendments, Supplements, Etc. This Agreement may be amended or
supplemented at any time by additional written agreements executed by all of the
parties hereto, as may mutually be determined by such parties to be necessary,
desirable or expedient to further the purposes of this Agreement, or to clarify
the intention of the parties hereto.
3.6 Applicable Law. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the
substantive laws of the State of Ohio applicable to contracts made and to be
performed therein, without giving effect to the principles of conflict of laws
thereof.
3.7 Execution in Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same agreement.
3.8 Titles and Headings. Titles and descriptive headings to sections
herein are inserted for convenience of reference only, and are not intended to
be a part of or to affect the meaning or interpretation of this Agreement.
3.9 No Third-Party Rights. Nothing herein, contemplated hereby or
related hereto shall create any express or implied rights in any person or
entity other than the parties hereto. Without limiting the generality of the
foregoing, no party hereto shall have any rights against any director, officer,
employee or stockholder of MPW or any affiliate or representative thereof by
reason of this Agreement, the transactions contemplated hereby or any matter
related thereto.
3.10 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, assigns,
heirs and legal representatives. No party hereto may assign its rights or
delegate its duties hereunder.
3.11 Validity. If any term, provisions, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the parties agree that such term provision, covenant or
restriction shall be reformed to the extent possible consistent with such
judicial holding to reflect the intent of the parties as stated herein and the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. The parties hereby stipulate and declare their intention to be
that they will execute the remaining terms, provisions, covenants and
restrictions herein without including herein any such terms, provisions,
covenants or restrictions that may be hereafter declared invalid, void or
unenforceable.
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3.12 Termination. In the event an IPO does not occur within one year
from the day and year first written above, then this agreement shall terminate
and all conditions and terms herein shall no longer bind any parties hereto nor
their respective successors, assigns, heirs or legal representatives.
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IN WITNESS WHEREOF, the parties hereto duly executed this Agreement
effective as of the day and year first above written.
MPW INDUSTRIAL SERVICES GROUP, INC.
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Xxxxxx X. Xxxxxxx, Vice President
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Xxxxxx X. Xxxxxxxxx, Individually
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Xxxxx X. Xxxxxxx, Individually
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