Exhibit 2.1
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ASSET PURCHASE AGREEMENT
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BY AND BETWEEN
MEDSOLUTIONS, INC.,
A TEXAS CORPORATION,
AND
AMERITECH ENVIRONMENTAL, INC.,
A TEXAS CORPORATION
DATED EFFECTIVE AS OF NOVEMBER 7, 2003
ASSET PURCHASE AGREEMENT
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This Asset Purchase Agreement (this "Agreement"), executed to be
effective as of November 7, 2003 (the "Effective Date"), is made and entered
into by and between MedSolutions, Inc., a Texas corporation (the "Buyer"), and
AmeriTech Environmental, Inc., a Texas corporation (the "Seller").
WITNESSETH:
WHEREAS, the Seller is currently engaged in the business of regulated
medical waste transportation and disposal, document destruction, sharps
management, and OSHA (as defined below) and HIPAA (as defined below) compliance;
and
WHEREAS, the Seller desires to sell and convey, and the Buyer desires
to purchase and assume, certain assets and liabilities of the Seller, as more
particularly described herein, in exchange for the consideration as more
particularly described herein;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual undertakings and covenants set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties to this Agreement hereby agree as follows:
ARTICLE I
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PURCHASE OF ASSETS; PURCHASE PRICE
1.01 Assets to be Purchased; Purchase Price. On the Closing Date (as
defined below), and subject to the terms and conditions of this Agreement, the
Seller shall sell, assign, convey, and transfer, and the Buyer shall purchase,
acquire, accept, and assume, the Assets (as defined below) and the Assumed
Liabilities (as defined below), in exchange for, due or payable at the Closing
(as defined below), the following consideration (the "Purchase Price"):
(a) $620,000 in the form of a certified or cashiers' check,
money order, or wire-transfer of immediately available funds (the
"Cash").
(b) A promissory note in the form attached hereto as Exhibit A
(the "Note") in the principal amount of $750,000 (the "Principal
Amount"), secured by certain of the assets of the Buyer as set forth in
more particular detail in a security agreement in the form attached
hereto as Exhibit B (the "Security Agreement"), with simple interest at
the annual rate of 7% payable in 11 interest-only installments due
monthly and with the Principal Amount and the final interest payment
due on the first anniversary of the Closing Date; provided, however,
that any invoiced amounts for the regulated medical waste processed by
the Buyer for the Seller after the Closing Date shall be deducted from
the Principal Amount and any accrued and unpaid interest thereon. To
the extent that any interest is paid on the Note and the Principal
Amount is subsequently reduced in accordance with the terms of this
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Agreement, any excess interest previously paid will be credited against
the future interest payment(s) and/or the Principal Amount such that
the amount of interest paid on the Principal Amount will not exceed 7%.
(c) 705,072 restricted shares (the "Shares") of the Buyer's
common stock, $.001 par value per share (the "Common Stock"), valued at
$1.25 per share for the purposes of this Agreement (the "Share Value");
provided, however, that the number of Shares may increase or decrease
subject to the following: to the extent that actual aggregate sales
from existing customers relating to the contracts listed on Schedule
3.16 (the "Existing Customers") for the months of November 2003,
December 2003, January 2004, February 2004, March 2004 and April 2004
(the "Actual Sales Amount") are less than $1,584,000 (the "Projected
Sales Amount"), such Actual Sales Amount to be determined by May 31,
2004, the annualized difference between the Actual Sales Amount and the
Projected Sales Amount shall be multiplied by 0.78 to obtain an
adjustment amount (the "Sales Adjustment Amount"), and the total number
of Shares issued to the Seller shall be reduced effective as of the
Closing Date by a number of Shares equal to the quotient of the Sales
Adjustment Amount divided by the Share Value, provided that the total
number of Shares issued to the Seller shall not be less than zero
pursuant to this Section 1.01(c). To the extent that the Actual Sales
Amount is greater than the Projected Sales Amount, the total number of
Shares issued to the Seller shall be increased effective as of the
Closing Date by a number of Shares equal to the quotient of the Sales
Adjustment Amount divided by the Share Value; provided further that, if
within 90 days after the Closing Date certain prospective customers as
listed on Schedule 1.01(c) (the "90-Day Customers") have entered into
standard Buyer service contracts for terms of at least one year, or
within 180 days after the Closing Date certain prospective customers as
listed on Schedule 1.01(c) who have shown significant progress within
90 days after the Closing Date towards entering into standard Buyer
service contracts for terms of at least one year have entered into such
contracts (the "180-Day Customers"), the aggregate expected annual
revenues, net of chargebacks, refunds, rebates, returns and offsets, to
the Buyer from such service contracts with the 90-Day Customers and
180-Day Customers, in each such case as determined within 30 days after
the initial billing to such customer, shall be multiplied by 0.50 to
obtain an adjustment amount (the "Revenues Adjustment Amount"), and the
total number of Shares issued to the Seller shall be increased
effective as of the Closing Date by a number of Shares equal to the
quotient of the Revenues Adjustment Amount divided by the Share Value.
No later than 30 days after the end of each of the calendar months
November 2003 through April 2004, inclusive, the Buyer shall provide
the Seller with a true, correct and complete copy of its invoice
register for such month with respect to customers of the Seller as of
the Closing Date.
(d) The assumption of certain of the Seller's liabilities not
to exceed $200,000, as more particularly described in Section 1.05 of
this Agreement.
(e) If the Buyer shall have to pay, directly or indirectly,
during the first year after the Closing Date, any amount, including
without limitation by way of reimbursement, rebate, credit or invoice
adjustment, to any Existing Customer relating to any customer
complaints or grievances based on any action or failure to act by the
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Seller prior to the Closing Date, such payment shall be deducted by the
Buyer first from the Principal Amount and any accrued and unpaid
interest accrued thereon, and second from the Shares by redemption and
cancellation of Shares at the Share Value for no consideration.
1.02 Allocation of the Purchase Price. The Purchase Price shall be
allocated among the Assets in accordance with Schedule 1.02 (the "Allocation").
The Seller and the Buyer shall make consistent use of the Allocation following
the Closing Date, and the Seller and the Buyer hereby agree not to file any tax
return or otherwise take a position with any federal, state or local tax
authority which is inconsistent with the Allocation.
1.03 Definition of Assets. The term "Assets" shall mean all right,
title, and interest that the Seller now has, or may have in the future, in and
to the properties (both real and personal) and assets (both tangible and
intangible) as set forth and described on Schedule 1.03. All properties and
assets not set forth and fully described on Schedule 1.03 are expressly excluded
from the term "Assets" for the purposes of this Agreement.
1.04 Assets Unencumbered. Schedule 1.04 sets forth and fully describes
each and every liability, lien, mortgage, encumbrance, and imperfection of title
to which the Assets are subject or may be subject in the future due to actions
or omissions of the Seller (the "Disclosed Encumbrances"). Except for the
Disclosed Encumbrances, the Seller shall convey to the Buyer marketable title to
the Assets free and clear of any liabilities, liens, mortgages, encumbrances,
and imperfections of title.
1.05 Assumption of Certain Liabilities. Schedule 1.05 sets forth and
fully describes only those debts, liabilities, and obligations of the Seller
that the Buyer has agreed to assume pursuant to this Agreement (the "Assumed
Liabilities"). No Disclosed Encumbrance shall constitute an Assumed Liability
unless it is specifically enumerated on Schedule 1.05. Except for the Assumed
Liabilities, the Buyer shall not assume, and expressly disclaims any obligation
or responsibility for, and nothing in this Agreement shall be construed as
causing the assumption of or obligation or responsibility for, any debts,
liabilities, or obligations of the Seller or any Affiliate (as defined in
Article VIII of this Agreement) thereof.
ARTICLE II
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CLOSING AND CLOSING DATE
2.01 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall be held on (i) the Effective Date or (ii) such
other date as the parties hereto may agree, at such time and place as the
parties hereto may agree. The date on which the Closing occurs is referred to
herein as the "Closing Date". At the Closing, the parties hereto shall deliver
or cause to be delivered the following:
(a) the Seller shall deliver or cause to be delivered to the
Buyer:
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(i) title to and possession of the Assets by means of an
executed copy of the Xxxx of Sale and Assignment and
Assumption Agreement attached hereto as Exhibit C and
any other instruments of conveyance or other
documents or instruments necessary to transfer and
assign title and beneficial ownership of the Assets
to the Buyer as reasonably determined by the Buyer;
(ii) the Secretary's Certificate in substantially the form
of Exhibit D hereto;
(iii) the consents as set forth on Schedule 2.01(a)(iii),
dated prior to the Closing Date, required to be
obtained by the Seller from third parties in order to
transfer certain of the Assets to the Buyer in
accordance with this Agreement;
(iv) a shareholder lock-up agreement with respect to the
Shares between the Buyer and the Seller in the form
attached hereto as Exhibit E;
(v) non-competition and non-solicitation agreements
between the Buyer and each of Xxxxxxxx X. Xxxxxx,
Xxxxxx Xxxxxxxxxx, and Xxxxxxxxxxx Xxxxx, in the form
attached hereto as Exhibit G;
(vi) consulting agreements between the Buyer and each of
Xxxxxxxx X. Xxxxxx, Xxxxxx Xxxxxxxxxx, and
Xxxxxxxxxxx Xxxxx in the form attached hereto as
Exhibit H;
(viii) a right of first refusal agreement between the Buyer,
the Seller, and AmeriTech Resource Recovery, Inc., a
Texas corporation and a wholly-owned subsidiary of
the Seller ("ARRI"), in the form attached hereto as
Exhibit I.
(b) The Buyer shall deliver to the Seller:
(i) The Cash, the Note, and the Security Agreement.
(ii) the Secretary's Certificate in substantially the form
of Exhibit F hereto.
(iii) non-competition and non-solicitation agreements
between the Buyer and each of Xxxxxxxx X. Xxxxxx,
Xxxxxx Xxxxxxxxxx, and Xxxxxxxxxxx Xxxxx, in the form
attached hereto as Exhibit G;
(iv) consulting agreements between the Buyer and each of
Xxxxxxxx X. Xxxxxx, Xxxxxx Xxxxxxxxxx, and
Xxxxxxxxxxx Xxxxx in the form attached hereto as
Exhibit H;
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(v) a right of first refusal agreement between the Buyer,
the Seller, and ARRI, in the form attached hereto as
Exhibit I;
(vi) an executed copy of the Xxxx of Sale and Assignment
and Assumption Agreement attached hereto as Exhibit
C; and
(vii) all documentation, including executed financing
statements, necessary to file a security interest for
the Collateral (as defined in the Security
Agreement).
ARTICLE III
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REPRESENTATIONS AND WARRANTIES OF THE SELLER
To induce the Buyer to enter into this Agreement and to consummate the
transactions contemplated hereby, the Seller hereby represents and warrants to
the Buyer, as of the Closing Date, the following:
3.01 Organization and Good Standing. The Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Texas. Schedule 3.01 includes (i) a true and complete copy of the Seller's
Articles of Incorporation and all amendments thereto, certified by the Secretary
of State of Texas; (ii) a true and complete copy of the Bylaws of the Seller
presently in effect, certified as true and correct by the Seller's Secretary;
and (iii) a true and complete copy of a certificate of good standing, certified
by the Secretary of State of Texas as of the Closing Date.
3.02 Authority. The Seller has all requisite corporate power and
authority to own its property (including, without limitation, the Assets), to
conduct its business, and to execute and deliver this Agreement and any
instruments and agreements contemplated herein that are required to be executed
and delivered by the Seller pursuant to its obligations under this Agreement,
and to perform its obligations hereunder and thereunder. This Agreement has been
approved by the Seller's Board of Directors and shareholders and has been duly
authorized, executed, and delivered by the Seller. No other corporate act or
proceeding on the part of the Seller is necessary to authorize this Agreement or
the transactions contemplated hereby. This Agreement represents a valid and
binding obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and similar laws affecting the enforcement of
creditors' rights generally and the application of general principles of equity
and judicial discretion. The Seller has delivered to the Buyer a copy of the
resolutions of the Seller's Board of Directors and shareholders, certified as
true and correct by the Seller's Secretary, approving this Agreement and
authorizing the execution hereof by the Seller's President.
3.03 No Violation. Neither the execution and delivery by the Seller of
this Agreement nor the consummation by the Seller of the transactions
contemplated hereby will (i) violate any provision of the Texas Business
Corporation Act, the Articles of Incorporation of the Seller, or the Bylaws of
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the Seller; (ii) except as set forth on Schedule 3.11, violate, or be in
conflict with, or constitute a default (or an event or condition that, 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 cause the
acceleration of the maturity of any of the Assumed Liabilities, or result in the
creation or imposition of any security interest, lien, charge, or other
encumbrance upon any of the Assets under, any note, bond, mortgage, indenture,
deed of trust, license, lease, contract, commitment, understanding, arrangement,
agreement, or restriction of any kind or character to which the Seller is a
party or by which the Seller may be bound or affected or to which any of the
Assets is subject; or (iii) violate any statute or law or any judgment, decree,
order, writ, injunction, regulation, or rule of any court or Governmental
Authority (as defined in Article VIII of this Agreement).
3.04 Brokers. The Seller has not employed any broker, agent, or finder
in connection with any transaction contemplated by this Agreement for which the
Buyer may be liable or responsible to pay.
3.05 No Undisclosed Liabilities. Except for the Disclosed Encumbrances,
express liabilities arising under the contracts set forth on Schedule 3.16 and
the Assumed Liabilities, there are no liabilities or obligations of the Seller,
whether accrued, absolute, contingent, or otherwise, that have affected or could
affect in any way the Assets, or any of them. There is no basis for the
assertion against the Seller of any liability or obligation of any nature
whatsoever that could result in the creation or imposition of any security
interest, lien, charge, or encumbrance upon the Assets.
3.06 Title to the Assets; Encumbrances. Except for the Disclosed
Encumbrances, the Seller has good and marketable title to the Assets free and
clear of all liens, mortgages, claims, easements, pledges, security interests,
or other imperfections of title.
3.07 Environmental Compliance.
(a) With respect to the Assets, the Seller is in compliance
with all applicable Environmental Laws (as defined in Article VIII of
this Agreement) and has obtained and is in compliance with all permits,
licenses, and other authorizations required under any Environmental
Law. There is no past or present event, condition or circumstance that
is likely to interfere with the utilization of the Assets constituting
a violation of Environmental Laws or resulting from any failure to
comply therewith;
(b) The Seller does not now and has not leased, operated,
owned, or exercised managerial functions at any facilities or real
property that constitute the Assets with respect to which such entity,
facility, or real property is subject to any Proceeding (as defined in
Article VIII of this Agreement) under any Environmental Law, and the
Seller is not aware of any facts or circumstances that could give rise
to such a Proceeding;
(c) There are no actions or Proceedings pending or, to the
Seller's Knowledge (as defined in Article VIII of this Agreement),
threatened against the Seller with respect to the Assets under any
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Environmental Law, and the Seller has not received any notice (whether
from any regulatory body or private person) of any violation, or
potential or threatened violation, of any Environmental Law in
connection with the Assets;
(d) There are no actions or Proceedings pending or, to the
Seller's Knowledge, threatened under any Environmental Law involving
the release or threat of release of any Polluting Substances (as
defined in Article VIII of this Agreement) at or on the Real Property
(as defined below);
(e) Seller is not and has not been required to obtain any
permit under an Environmental Law to construct, demolish, renovate,
occupy, operate, or use the Real Property (as defined below);
(f) The Seller has not generated any Polluting Substances on
the Real Property (as defined below);
(g) There has been no release of Polluting Substances by the
Seller on the Real Property (as defined below) in violation of any
Environmental Law that would require any report or notification to any
governmental or regulatory authority in or on the Real Property;
(h) The Seller is not under investigation or subject to
pending or, to the Seller's Knowledge, threatened litigation by
federal, state, or local officials or a private litigant as a result of
any previous on-site management, treatment, storage, release, or
disposal of Polluting Substances or exposure to any Polluting
Substances, in each case relating solely to the Real Property (as
defined below);
(i) There are no underground or above ground storage tanks on
or under any Real Property (as defined below) that are not in
conformity with any Environmental Law, and any Real Property previously
containing such tanks has been remediated in compliance with all
Environmental Laws; and
(j) There is no asbestos-containing material on any Real
Property (as defined below) of the Seller.
3.08 Financial Statements. Attached as Schedule 3.08 are true, correct,
and complete copies of the Seller's unaudited balance sheet and statement of
income as of and for the nine months ended September 30, 2003. To the Seller's
Knowledge (as defined in Article VIII of this Agreement), the revenue line item
in the Seller's income statement for the nine month period ended September 30,
2003 and the assets, liabilities and common stock and additional paid in capital
balance sheet line items on the Seller's balance sheet as of September 30, 2003
are accurately stated in all material respects.
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3.09 Taxes.
(a) Except as set forth on Schedule 3.09, the Seller has (i)
timely filed all returns required to be filed by it with respect to all
federal, state, local, and foreign income, payroll, withholding,
unemployment, excise, added value, social security, sales and use, real
and personal property, use and occupancy, business and occupation,
mercantile, real estate, capital stock, and franchise or other tax
(including interest and penalties thereon and including estimated taxes
thereof) (hereinafter referred to collectively as "Taxes"); (ii) paid
all Taxes shown to have become due pursuant to such returns; and (iii)
paid all other Taxes for which a notice of assessment or demand for
payment has been received;
(b) All returns for Taxes filed by or on behalf of the Seller
have been prepared in accordance with all applicable laws and
requirements and accurately reflect the taxable income (or other
measure of Tax) of the entity filing the return; and
(c) There are no Tax liens upon any of the Assets, and the
Seller is not aware of any audit or other proceeding or investigation,
or of any position taken on a Tax return of the Seller, that could give
rise to a Tax lien upon any of the Assets. The Seller has previously
provided the Buyer with complete, true, and correct copies of the
Seller's federal income tax returns for the taxable years 1999 and
2000.
3.10 Litigation. Except as set forth on Schedule 3.10, there are no
Proceedings (as defined in Article VIII of this Agreement) in progress, pending,
or, to the Seller's Knowledge, threatened against or affecting the Seller, the
Assets, or the transactions contemplated hereby in any court or before any
arbitration panel of any kind or before or by any Governmental Authority (as
defined in Article VIII of this Agreement), except such Proceedings which would
not have a Material Adverse Effect and letters from vendors for the collection
of trade payables.
3.11 Consents. Except as set forth on Schedule 3.11 and the consent of
the shareholders of the Seller, no consent, approval, license, permit,
authorization, or order of any Person is required in connection with the
execution and delivery of this Agreement by the Seller or the consummation of
the transactions contemplated hereby by the Seller, except such consents,
approvals, licenses, permits, authorizations or orders which would in the
aggregate not have a Material Adverse Effect.
3.12 Absence of Unethical Business Practices. To the Seller's
Knowledge, neither the Seller nor any officer, employee or agent thereof has
directly or indirectly given or agreed to give any gift or similar benefit to
any customer, contractor, Governmental Authority, or any employee, agent, broker
or affiliate of such Person or Governmental Authority who was or is in a
possible position to help or hinder the Seller, which gift or benefit (a) would
subject the Seller to any damages or penalties in any civil or criminal
proceeding, or (b) would have a Material Adverse Effect on the Assets if
discontinued.
3.13 Description Of Real Property. Schedule 3.13 contains a correct
legal description, street address and tax parcel identification number for all
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real property that is part of the Assets (the "Real Property"). Except as set
forth on Schedule 3.13, the Seller owns the Real Property and any improvements
thereto free and clear of any and all security interests, liens, mortgages,
charges, or encumbrances.
3.14 Condition of Facilities and Assets; Inventory.
(a) Use of the Real Property and any improvements thereon for the
various purposes for which they are presently being used is permitted as of
right under all applicable zoning legal requirements and is not subject to
"permitted nonconforming" use or structure classifications. All improvements to
the Real Property are in compliance with all applicable legal requirements,
except such non-compliance that does not have a Material Adverse Effect on the
use or enjoyment of the Real Property, including those pertaining to zoning,
building and the disabled, are in good repair and in good condition.
(b) Each of the Assets is in good repair and good operating condition,
is suitable for immediate use, and is free from latent and patent defects. No
Asset is in need of repair or replacement. All Assets used in the Seller's
business are in the possession of the Seller.
(c) All of the Seller's inventory is merchantable and fit for the
purposes for which it was procured or manufactured, and none of such inventory
is slow moving, obsolete, damaged, or defective.
3.15 Employee Benefits.
(a) For purposes of this Agreement, the following terms shall
have the following meanings:
(i) "Employee Benefit Plan" means any "employee pension
benefit plan" (as defined in Section 3(2) of ERISA),
any "employee welfare benefit plan" (as defined in
Section 3(1) of ERISA), and any other written or oral
plan, agreement or arrangement involving direct or
indirect compensation, including insurance coverage,
severance benefits, disability benefits, deferred
compensation, bonuses, stock options, stock purchase,
phantom stock, stock appreciation or other forms of
incentive compensation or post-retirement
compensation.
(ii) "ERISA" means the Employee Retirement Income Security
Act of 1974, as amended.
(b) Schedule 3.15(b) contains a complete and accurate list of
all Employee Benefit Plans maintained, or contributed to, by the
Seller. The Seller has no Employee Benefit Plans that are required to
comply with ERISA.
(c) There are no Proceedings (except claims for benefits
payable in the normal operation of the Employee Benefit Plans and
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proceedings with respect to qualified domestic relations orders)
against or involving any Employee Benefit Plan or asserting any rights
or claims to benefits under any Employee Benefit Plan that could give
rise to any material liability that could reasonably be expected to
have a Material Adverse Effect.
3.16 Contracts; No Defaults. Schedule 3.16 contains an accurate and
complete list, and the Seller has delivered to the Buyer accurate and complete
copies of each contract to which the Seller is a party and which is being
assigned to or assumed by the Seller under this Agreement and each amendment,
supplement and modification (whether oral or written) in respect thereof
(collectively, the "Assigned Contracts"). Except as otherwise set forth on
Schedule 3.16, and except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and similar laws affecting the enforcement of
creditors' rights generally and the application of general principles of equity
and judicial discretion, to the Seller's Knowledge, each Assigned Contract is in
full force and effect and is valid and enforceable in accordance with its terms,
is not in default nor has any event occurred which with the passage of time
would result in a default, and is assignable by the Seller to the Buyer.
3.17 Full Disclosure. To the Seller's Knowledge, no representation or
warranty regarding the Seller or the Assets made in this Agreement, the Exhibits
and Disclosure Schedules hereto, or the documents to be delivered by the Seller
at the Closing pursuant to Section 2.01(a), contains any untrue statement of a
material fact that affects the Assets or the Seller's title to the Assets, or
omits to state a material fact necessary to make the statements or facts
contained herein or therein not misleading. Each of the Exhibits and Disclosure
Schedules attached hereto is a true and complete list or description, as
appropriate, of the items purported to be listed or described thereon.
3.18. Representations Regarding the Acquisition of the Shares.
(a) The Seller is acquiring the Shares in connection with this
Agreement for investment purposes only and does not intend to resell or
distribute such Shares, except pursuant to an offering registered with
the Securities and Exchange Commission. No other person has or will
have a direct or indirect beneficial interest in the Shares acquired in
connection with this Agreement;
(b) The Seller is a person who either alone or with his or her
purchaser representative(s) has sufficient knowledge and experience in
financial and business matters to be capable of evaluating the merits
and risks of an investment in the Buyer;
(c) The Seller understands that the Shares constitute
restricted securities as that term is defined in Rule 144 under the
Securities Act and that the Shares may not be sold or transferred in
the absence of a registration statement or an available exemption from
registration;
(d) The Seller understands the speculative nature and risks of
investments associated with the Buyer and confirms that it is able to
bear the risk of the investment, and that there may not be any public
market for the Shares received herein;
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(e) The Seller has freely entered this Agreement and has been
subject to neither pressure to make a xxxxx or uninformed decision to
enter into this Agreement nor solicitation to receive the Shares;
(f) Neither the Buyer nor the Seller is under an obligation to
register or seek an exemption under any federal and/or state securities
acts for any sale or transfer of the Shares by the Seller, and the
Seller hereby acknowledges that the Shares may not be sold,
transferred, assigned or hypothecated unless there is an effective
registration statement under the Securities Act covering the Shares,
the sale is made in accordance with Rule 144 under the Securities Act,
or the Buyer receives an opinion of counsel of the Seller reasonably
satisfactory to the Buyer, stating that such sale, transfer, assignment
or hypothecation is exempt from the registration and prospectus
delivery requirements of the Securities Act;
(g) The Seller has had the opportunity to ask questions of the
Buyer and receive additional information from the Buyer to the extent
that the Buyer possessed such information, or could acquire it without
unreasonable effort or expense necessary to evaluate the merits and
risks of any investment in the Buyer. Further, the Seller has been
given an opportunity to question the appropriate executive officers of
the Buyer. The Seller hereby acknowledges that the Buyer has suffered a
loss for the fiscal quarter ended September 30, 2003; and
(h) The Seller hereby acknowledges that the shareholder
lock-up agreement with respect to the Shares between the Buyer and the
Seller in the form attached hereto as Exhibit E shall follow the Shares
upon the sale, transfer, assignment or hypothecation of any or all of
the Shares to any transferee of the Seller.
ARTICLE IV
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REPRESENTATIONS AND WARRANTIES OF THE BUYER
To induce the Seller to enter into this Agreement and to consummate the
transactions contemplated hereby, the Buyer hereby represents and warrants to
the Seller, as of the Closing Date, the following:
4.01 Organization and Good Standing. The Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Texas. Exhibits 3.1 through 3.6, inclusive, to the Buyer's Form 10-QSB for the
quarterly period ended June 30, 2003 (the "Buyer's Form 10-QSB") are true and
complete copies of the Buyer's Articles of Incorporation and all amendments
thereto. Exhibit 3.7 to the Buyer's Form 10-QSB is a true and complete copy of
the bylaws of the Buyer as presently in effect. Schedule 4.01 includes a true
and complete copy of a certificate of good standing of Buyer, certified by the
Secretary of State as of the Closing Date.
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4.02 Authority. The Buyer has all requisite corporate power and
authority to execute and deliver this Agreement, the Note and the Security
Agreement (collectively, the "Transaction Documents") and to consummate the
transactions contemplated hereby and thereby. The Transaction Documents been
approved by the Buyer's Board of Directors and by the Buyer's shareholders if
required by applicable law and have been duly authorized, executed, and
delivered by the Buyer. No other corporate act or proceeding on the part of the
Buyer is necessary to authorize the Transaction Documents or the transactions
contemplated thereby. The Transaction Documents have been duly authorized,
executed, and delivered by the Buyer and constitute a valid and binding
obligation of the Buyer enforceable against the Buyer in accordance with their
terms, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and similar laws affecting the enforcement of creditors' rights
generally and the application of general principles of equity and judicial
discretion. The Buyer has delivered to the Seller a copy of the resolutions of
the Buyer's Board of Directors, certified as true and correct by the Buyer's
secretary, approving this Agreement, the issuance of the Shares and the Note and
the execution of the Security Agreement and authorizing the execution hereof and
thereof by the Buyer's president.
4.03 No Violation. Neither the execution and delivery by the Buyer of
the Transaction Documents nor the consummation by the Buyer of the transactions
contemplated thereby will (i) violate any provision of the Texas Business
Corporation Act, the Articles of Incorporation of the Buyer, or the Bylaws of
the Buyer; (ii) violate, or be in conflict with, or constitute a default (or an
event or condition that, 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 cause the acceleration of the maturity of any agreement to which
the Buyer is subject, or result in the creation or imposition of any security
interest, lien, charge, or other encumbrance upon any of the Buyer's assets
under, any note, bond, mortgage, indenture, deed of trust, license, lease,
contract, commitment, understanding, arrangement, agreement, or restriction of
any kind or character to which the Buyer is a party or by which the Buyer may be
bound or affected or to which any the Buyer's assets is subject; or (iii)
violate any statute or law or any judgment, decree, order, writ, injunction,
regulation, or rule of any court or Governmental Authority (as defined in
Article VIII of this Agreement).
4.04 Brokers. The Buyer has not employed any broker, agent, or finder
in connection with any transaction contemplated by this Agreement for which the
Seller may be liable or responsible to pay.
4.05 Litigation. Except as disclosed in Buyer's Form 10-QSB, there are
no suits, arbitrations, claims, actions, Proceedings, investigations, or
inquiries in progress, pending, or, to Buyer's Knowledge, threatened against or
affecting the Buyer, the Buyer's assets, or the transactions contemplated hereby
in any court or before any arbitration panel of any kind or before or by any
Governmental Authority, except such Proceedings which would not have a Material
Adverse Effect.
4.06 Full Disclosure. To the Buyer's Knowledge, no representation or
warranty of the Buyer made in this Agreement contains any untrue statement of a
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material fact that affects the ability of the Buyer to consummate the
transactions contemplated by this Agreement or omits to state a material fact
necessary to make the statements or facts contained herein not misleading.
4.07 Consents. No consent, approval, license, permit, authorization, or
order of any person is required in connection with the execution and delivery of
Transaction Documents or the consummation of the transactions contemplated
hereby.
4.08 Capitalization. The capitalization of the Buyer immediately prior
to the Closing is as set forth on Schedule 4.08.
4.09 Exemption. The issuance of the Shares hereunder to the Seller is
exempt from the registration requirements under the Securities Act of 1933, as
amended, and all applicable state securities laws.
4.10 Issuance of Common Stock. The Shares being sold hereunder, when
issued in accordance with this Agreement, will have been validly issued, fully
paid and non-assessable and will be free and clear of any lien, charge or other
encumbrance (other than as set forth in this Agreement) and will not be subject
to any preemptive or similar rights. As of the Closing Date, no previously
existing shareholders of the Buyer have any rights superior to the Seller,
including rights upon liquidation, to dividends, or for registration of shares
with the Securities and Exchange Commission. The shareholder lock-up agreement
with respect to the Shares between the Buyer and the Seller in the form attached
hereto as Exhibit E is the Buyer's standard form lock-up agreement to which no
less than 65% of the Buyer's outstanding Common Stock is subject as of the
Closing Date and does not contain any more severe restrictions than those
applied to other shareholders of the Buyer that have signed lock-up agreements.
4.11 Security Interest. The Security Agreement shall create in favor of
the Seller a security interest in all of the Buyer's right, title and interest
in those items and types of collateral described in the Security Agreement in
which a security interest may be created exclusively under Article 9 of the
Uniform Commercial Code in the State of Texas (the "UCC"). The filing of a UCC
Form 1 in the Office of the Secretary of State of Texas shall result, if timely
filed, in the perfection (within the meaning of the UCC) of the security
interest with respect to all collateral in which a security interest may be
perfected by the filing of such UCC Form 1.
ARTICLE V
---------
COVENANTS OF THE SELLER
5.01 Payment of Liabilities and Taxes; Bulk Transfer Laws. The Seller
shall pay in full or otherwise satisfy all liabilities of the Seller other than
the Assumed Liabilities. The Buyer and the Seller hereby waive compliance with
the bulk transfer provisions of the UCC or any similar bulk sales laws in
connection with the transactions contemplated by this Agreement.
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5.02 Non-competition.
(a) The Seller and the Buyer acknowledge that (i) the Buyer is engaged
in or intends to be engaged in business throughout the United States and that
the marketplace for the Buyer's products and services is nationwide, (ii) the
agreements and covenants in this Section 5.02 are essential to protect the
legitimate business interests of the Buyer, and (iii) the Buyer would not enter
into this Agreement but for the covenants and agreements contained in this
Section 5.02. Accordingly, the Seller covenants and agrees that commencing on
the Closing Date and continuing for a period of two years thereafter, the Seller
will not, and will cause its Affiliates not to, own, manage, operate, join,
control or participate in, directly or indirectly, or be a partner or
shareholder of (except for the ownership of the Shares), any business engaged in
the (A) regulated medical waste transportation business, (B) document
destruction or shredding business, including without limitation the
transportation of destroyed or shredded documents business in the states of
Texas, Florida or Oklahoma, (C) sharps management business, and (D) compliance
with the Occupational Safety and Health Act ("OSHA") or the Health Insurance
Portability and Accountability Act of 1996 ("HIPAA") business (collectively, the
"Buyer Businesses"), and neither the Seller nor any Affiliate of the Seller
shall render assistance or advice to any Person which is so engaged; provided
however, that the passive ownership of less than 2% of the equity securities of
a publicly-traded company that is involved in any of the foregoing businesses
shall be permissible under this Section 5.02. Notwithstanding anything in this
Section 5.02 to the contrary, the operation of an incinerator at Center, Texas
by the Seller or its Affiliates shall be permissible under this Section 5.02 to
the extent that the Seller or its Affiliates (X) do not dispose of any materials
related to the Buyer Businesses for customers who are regulated medical waste
generators, (Y) do not affiliate with any company engaged in the transportation
of regulated medical waste, and (Z) do not provide assistance or advice to any
company other than the Buyer that engages in the Buyer Businesses. For purposes
of clarification, the execution of a standard disposal contract with a
non-affiliated company engaged in the transportation of regulated medical waste
shall not be deemed to violate clause (Y) above.
(b) If any covenant in this Section 5.02 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered to be
divisible with respect to scope, time, and geographic area, and such lesser
scope, time, or geographic area, or all of them, as an arbitrator or a court of
competent jurisdiction may determine to be reasonable, not arbitrary, and not
against public policy, will be effective, binding, and enforceable against the
Seller and the Buyer.
5.03 Audit. The Seller shall take all actions necessary and proper such
that the Buyer's audit of the Seller's accounts and records is completed at the
Buyer's expense within 60 days after the Closing Date.
5.04 Consents. The Seller shall use its reasonable best efforts to
obtain all consents from third parties necessary in order to transfer the Assets
(other than the consents already delivered pursuant to Section 2.01(a)(iii)) as
soon as practicable, but in no event later than within 45 days after the Closing
Date.
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5.05 Payment of Taxes. The Seller shall promptly pay all Taxes due from
the Seller as of the Closing Date, and all other Taxes for which a notice of
assessment or demand for payment has been received as of the Closing Date.
5.06 Title to Real Property and Vehicles. The Seller shall obtain for
and on the Buyer's behalf, at the Seller's sole expense, and shall deliver to
the Buyer, as soon as practicable, but in no event later than the 45th day after
the Closing Date, a title search, title insurance, warranty deed and survey with
regards to the Real Property, and Texas Motor Vehicle Transfer Notifications
with regards to any motor vehicles that constitute the Assets and are located in
the State of Texas.
ARTICLE VI
----------
ADDITIONAL AGREEMENTS
6.01 Advisory Director. As of the Closing Date, and for a period of two
years thereafter, the Buyer shall appoint one person nominated by the Seller as
an advisory board member of the Buyer.
6.02 License of the Seller's Name. The Seller hereby grants to the
Buyer a nonexclusive license (the "License") consisting of a nonexclusive right
to use the name "AmeriTech Environmental", including without limitation the
right to open a bank account in the name of and cash checks made to "AmeriTech
Environmental". The term of the License shall commence on the Closing Date and
end 90 days thereafter (the "License Term"). The Seller agrees not to use the
name "AmeriTech Environmental" or conduct business under such name during the
License Term except to wind up its operations.
6.03 Insolvency of the Seller. In the event that the Seller is deemed
insolvent by a court of competent jurisdiction, and any Person obtains a
judgment or settlement (agreed to by the Seller) against the Buyer for the value
of the Assets in an amount in excess of the Purchase Price, the Buyer shall be
entitled first to offset such excess against the Principal Amount and second to
redeem and cancel Shares against such excess at the Share Value for no
consideration. As used in this section, "insolvent" means: (i) that the sum of
the debts and other probable liabilities of the Seller exceed the present fair
saleable value of the Seller's assets; (ii) any event in which the Seller is
required to make an assignment for the benefit of creditors; (iii) any event in
which the Seller is unable to pay its debts as they become due in the usual
course of its business; (iv) any event in which the Seller shall be required to
file a voluntary petition in bankruptcy, or shall be adjudicated a bankrupt or
insolvent, or shall be required to file any petition or answer seeking for
itself any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, or shall be required to file any answer admitting or not contesting
the material allegations of a petition filed against it in any such proceeding;
or (v) any event in which the Seller shall be required to seek or consent to or
acquiesce in the appointment of any trustee, receiver or liquidator of it or of
all or any substantial part of its properties.
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6.04 Negotiation with Creditors. In the event that the Buyer is
contacted by any creditor of the Seller, excluding creditors relating to the
Assumed Liabilities, and such creditor requests payment from the Buyer for
liabilities of the Seller accruing prior to the Closing and which are not part
of the Assumed Liabilities, the Buyer shall promptly notify the Seller in
writing of such contact. The Seller shall be entitled to negotiate with such
creditor for a period of 30 days after the Seller receives such written notice
from the Buyer (the "Negotiation Period"), and the Buyer shall take no action,
unless such creditor claims or alleges a fraudulent conveyance or similar
charge, with respect to such creditor during the Negotiation Period without the
prior written consent of the Seller, which consent shall not be unreasonably
withheld.
6.05 RMW Invoice. Within 30 days of the Closing Date, the Buyer shall
provide the Seller with an invoice (the "Invoice") for the regulated medical
waste (RMW) processed by the Buyer for the Seller during the period up to and
including the Closing Date and any RMW backlog of Seller as of the Closing Date
to be processed by Buyer subsequent to Closing. In the event that the invoiced
amount is less than $30,000, the Buyer shall deliver payment to the Seller with
the Invoice for the difference between such invoiced amount and $30,000. In the
event that the invoiced amount is more than $30,000, the Seller shall deliver
payment to the Buyer for the difference between such invoiced amount and $30,000
within 10 days after the receipt of the Invoice.
6.06 Stock Certificate. The Buyer shall deliver a stock certificate for
the Shares to the Buyer within five days after the Closing Date.
ARTICLE VII
-----------
INDEMNIFICATION
7.01. Indemnification of the Buyer. The Seller hereby agrees to
indemnify, defend, and hold harmless the Buyer, its successors in interest, and
their respective officers, directors, employees, agents, attorneys, and
stockholders (each a "Buyer Indemnitee") from and against all demands, claims,
actions, or causes of action, assessments, losses, taxes, damages, liabilities,
costs, and expenses, including, without limitation, interest, penalties, and
reasonable attorneys' fees and expenses (collectively "Damages"), asserted
against, assessed upon, resulting to, imposed upon, or incurred by a Buyer
Indemnitee by reason of or resulting from (a) a breach of any representation,
warranty, or a breach or threatened breach of any covenant, obligation, or
agreement of the Seller contained in or made pursuant to this Agreement,
including the Schedules and Exhibits hereto, or any facts or circumstances
constituting such a breach; or (b) the operation of the businesses of the
Seller, including, but not limited to, any products sold or services rendered,
on or prior to the Closing Date. In addition, the Seller agrees to indemnify any
Buyer Indemnitee for Damages as they are incurred by the Buyer Indemnitee
irrespective of any ongoing or continuing legal proceedings and the relative
timeframes and issues associated with such proceedings, or the relative success
or nonsuccess the Buyer Indemnitee may experience in such proceedings.
7.02. Indemnification of the Seller. The Buyer hereby agrees to
indemnify, defend, and hold harmless the Seller, its successors in interest, and
their respective officers, directors, employees, agents, attorneys and
16
shareholders (each a "Seller Indemnitee") from and against all Damages asserted
against, assessed upon, resulting to, imposed upon, or incurred by the Seller by
reason of or resulting from (a) any default on any Assumed Liability occurring
after the Closing Date, or (b) a breach of any representation or warranty of the
Buyer contained in or made pursuant to this Agreement and the other Transaction
Documents, including the Exhibits and Schedules thereto. In addition, the Buyer
agrees to indemnify any Seller Indemnitee for Damages as they are incurred by
the Seller Indemnitee irrespective of any ongoing or continuing legal
proceedings and the relative timeframes and issues associated with such
proceedings, or the relative success or nonsuccess the Seller Indemnitee may
experience in such proceedings.
7.03. Indemnification Claims Procedure. All claims subject to
indemnification under Section 7.01 or 7.02 above shall be asserted and resolved
in accordance with the following provisions. Promptly after receipt by a Buyer
Indemnitee or a Seller Indemnitee (either is referred to as an "Indemnitee" in
this Section 7.03) of notice of the commencement of any action (including any
governmental action), such Indemnitee will, if a claim in respect thereof is to
be made against any indemnifying party (the "Indemnifying Party") under this
Article VII, deliver to the Indemnifying Party a written notice of the
commencement thereof and the Indemnifying Party shall have the right to
participate in, and, to the extent the Indemnifying Party so desires, jointly
with any other Indemnifying Party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an Indemnitee (together with all other Indemnitees that may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the fees and expenses to be paid by the Indemnifying Party, if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential conflicts
of interest between such Indemnified Party and any other party represented by
such counsel in such proceeding. The failure to deliver written notice to the
Indemnifying Party within a reasonable time of the commencement of any such
action, if materially prejudicial to its ability to defend such action, shall
relieve such Indemnifying Party of any liability to the Indemnitee under this
Article VII, but the omission so to deliver written notice to the Indemnifying
Party will not relieve it of any liability that it may have to any Indemnitee
otherwise than under this Article VII.
7.04. Expiration of Indemnification Obligations. All obligations to
provide indemnification pursuant to this Article VII shall terminate on May 7,
2005, other than claims arising from environmental, employee benefit or tax
issues, which shall not terminate until the applicable statutes of limitations
for such claims have expired.
ARTICLE VIII
------------
DEFINITIONS
The following terms as used in this Agreement shall have the meanings
set forth below:
"Affiliate" shall mean, as to any Person, any Person controlled by,
controlling, or under common control with such Person, and, in the case of a
Person who is an individual, a member of the family of such individual
consisting of a spouse, sibling, in-law, lineal descendant, or ancestor
17
(including by adoption), and the spouses of any such individuals. For purposes
of this definition, "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, directly
or indirectly, alone or in concert with others, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of securities, by contract, or otherwise, and no Person shall be
deemed in control of another solely by virtue of being a director, officer, or
holder of voting securities of any entity. A Person shall be presumed to control
any partnership of which such Person is a general partner.
"Code" shall mean the Internal Revenue Code of 1986, as amended. All
references herein to sections of the Code shall include any corresponding
provision or provisions of succeeding law.
"Environmental Laws" shall mean laws, including, without limitation,
federal, state, or local laws, ordinances, rules, regulations, interpretations,
and orders of courts or administrative agencies or authorities relating to
pollution, environmental protection, health and safety, or similar laws
(including, without limitation, ambient air, surface water, ground water, land
surface, and subsurface strata), including, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended ("CERCLA"), the Federal Clean Water Act ("CWA"), the Safe Drinking Water
Act ("SDWA"), the Resource Conservation and Recovery Act of 1976, as amended
("RCRA"), the Clean Air Act ("CAA"), the Emergency Planning and Community Right
to Know Act ("EPCRA"), OSHA, the Medical Waste Tracking Act of 1988 ("MWTA"),
the Hazardous Materials Transportation Authorization Act of 1994 ("HMTAA"), any
regulations issued by the Texas Department of Health (the "TDH"), the Texas
Natural Resource Conservation Commission (the "TNRCC"), or the Texas Commission
on Environmental Quality (the "TCEQ"), and other laws relating to pollution or
protection of the environment, or to the manufacturing, processing,
distribution, use, treatment, handling, storage, disposal, or transportation of
Polluting Substances.
"Governmental Authority" means any nation or government, any state,
regional, local, or other political subdivision thereof, and any entity or
official exercising executive, legislative, judicial, regulatory, or
administrative functions of or pertaining to government.
"Knowledge" - An individual shall be deemed to have "knowledge" of a
particular fact or other matter if (i) such individual is actually aware of such
fact or other matter, or (ii) a person serving in the same capacity as such
individual would be expected to discover or otherwise become aware, after due
inquiry, of such fact or other matter in the course of performing the official
duties of such individual. A corporation shall be deemed to have "knowledge" of
a particular fact or other matter if, (x) in the case of the Buyer, the
executive officers of the corporation have Knowledge (as set forth above) of
such fact or other matter, and (y) in the case of the Seller, any of Xxxxxxxx
Xxxxxx, Xxxxxx Xxxxxxxxxx or Xxxxxxxxxxx Xxxxx has Knowledge (as set forth
above) of such fact or other matter.
"Material Adverse Effect" means any effect(s), individually or in the
aggregate, that would be materially adverse to: (i) a party's assets (which in
18
the case of the Seller shall be the Assets) in an amount of $10,000 or more; or
(ii) the ability of a party to timely consummate the transactions contemplated
hereby.
"Person" shall have the meaning given in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended, as modified and used in Sections
13(d)(3) and 14(d)(2) of such act.
"Polluting Substances" shall be construed broadly to include (a)
asbestos, (b) petroleum products or wastes, (c) biomedical or biological wastes,
and (d) all pollutants, contaminants, chemicals, or industrial, toxic, or
hazardous substances or wastes and shall include, without limitation, any
flammable explosives, radioactive materials, oil, hazardous materials, hazardous
or solid wastes, hazardous or toxic substances or regulated materials defined in
CERCLA, CWA, SDWA, RCRA, EPCRA, CAA, OSHA, MWTA, and HMTAA, and/or any other
Environmental Laws, as amended, and in the regulations adopted and publications
promulgated thereto, including without limitation those issued by the TDH, the
TNRCC and the TCEQ; provided, to the extent that the laws of the State of Texas
establish a meaning for "hazardous substance," "hazardous waste," "hazardous
materials," "solid waste," or "toxic substance," which is broader than that
specified in any of CERCLA, CWA, SDWA, RCRA, EPCRA, CAA, OSHA, MWTA, HMTAA or
other Environmental Laws such broader meaning shall apply.
"Proceeding" shall mean any action, arbitration, audit, hearing,
investigation, litigation, or suit (whether civil, criminal, administrative,
judicial, or investigative, whether formal or informal, whether public or
private) commenced, brought, conducted, or heard by or before, or otherwise
involving any Governmental Authority or arbitrator.
ARTICLE IX
----------
MISCELLANEOUS
9.01 Reformation and Severability. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under present or future laws
effective during the term hereof:
(a) in lieu of such illegal, invalid, or unenforceable
provision, there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid, and
enforceable; and
(b) the legality, validity, and enforceability of the
remaining provisions hereof shall not in any way be affected or
impaired thereby.
9.02 Further Assurances. Each party hereto shall, from time to time
after the Closing Date, at the request of any other party hereto and without
further consideration, execute and deliver such other instruments of conveyance,
assignments, transfer, and assumption, and take such other actions, as such
other party may reasonably request to more effectively consummate the
transactions contemplated by this Agreement.
19
9.03 Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be sent by first class U.S.
mail (certified mail - return receipt requested), or by facsimile transmission
(if facsimile transmission is also sent by regular U.S. mail the same day), or
delivered by hand or by overnight or similar delivery service, fees prepaid, to
the party to whom it is to be given at the address of such party set forth below
or to such other address for notice as such party shall provide in accordance
with the terms of this section. Except as otherwise specifically provided in
this Agreement, notice so given shall, in the case of notice given by certified
mail (or by such comparable method) be deemed to be given and received three
business days after the time of certification thereof (or comparable act), in
the case of notice so given by overnight delivery service, on the date of actual
delivery, and, in the case of notice so given by facsimile transmission or
personal delivery, on the date of actual transmission or, as the case may be,
personal delivery.
If to the Buyer: MedSolutions, Inc.
00000 Xxxxx Xxxxx
Xxxx Xxxxxxx VIII
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, President & CEO
Fax: (000) 000-0000
With a copy to: Fish & Xxxxxxxxxx P.C.
5000 Bank One Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Block
Fax (000) 000-0000
If to the Seller: AmeriTech Environmental, Inc.
X.X. Xxx 000000
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxxxxx X. Xxxxxx, President & CEO
Fax: (___) ___-____
9.04 Headings. The headings of sections contained in this Agreement are
for convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
9.05 Waiver. The failure of any party to insist, in any one or more
instances, upon performance of any of the terms, covenants, or conditions of
this Agreement shall not be construed as a waiver or a relinquishment of any
right or claim granted or arising hereunder or of the future performance of any
such term, covenant, or condition, and such failure shall in no way affect the
validity of this Agreement or the rights and obligations of the parties hereto.
No waiver of any provision or condition of this Agreement shall be valid unless
executed in writing and signed by the party to be bound thereby, and then only
to the extent specified in such waiver. No waiver of any provision or condition
20
of this Agreement shall be construed as a waiver of any other provision or
condition of this Agreement, and no present waiver of any provision or condition
of this Agreement shall be construed as a future waiver of such provision or
condition.
9.06 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties hereto shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically breaches of this Agreement and to enforce specifically the
terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity.
9.07 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS RULES OR CHOICE OF LAWS RULES THEREOF OR OF ANY STATE.
9.08 Court Costs and Attorneys' Fees. If any action at law or in
equity, including an action for declaratory relief, is brought to enforce or
interpret the provisions of this Agreement, the prevailing party shall be
entitled to recover costs of court and reasonable attorneys' fees from the other
party or parties to such action, which fees may be set by the court in the trial
of such action or may be enforced in a separate action brought for that purpose,
and which fees shall be in addition to any other relief that may be awarded.
9.09 Assignability and Binding Effect. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors, heirs, and permitted assigns. This Agreement and the rights and
obligations hereunder shall not be assignable without the express written
consent of all parties hereto.
9.10 Amendments. This Agreement may not be modified, amended, or
supplemented except by an agreement in writing signed by all of the parties
hereto.
9.11 Expenses, Taxes, Etc. Except as otherwise provided herein, the
Seller shall pay all fees, taxes, and expenses incurred by it in connection with
this Agreement, and the Buyer shall pay all fees and expenses incurred by it in
connection with the transactions contemplated by this Agreement.
9.12 Third Parties. Except with respect to indemnification under
Section 7.01 or Section 7.02 herein, nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any person other than
the parties hereto and their successors, heirs or permitted assigns, any rights
or remedies under or by reason of this Agreement.
9.13 Number and Gender of Words. When the context so requires in this
Agreement, words of gender shall include either or both genders and the singular
number shall include the plural.
21
9.14 Entire Agreement. This Agreement and the executed documents, the
forms of which are attached hereto as Exhibits, together with the Schedules and
Exhibits attached hereto and thereto, shall constitute the entire agreement
between the parties hereto with respect to the transactions contemplated hereby
and shall supersede all prior or contemporaneous negotiations, understandings
and agreements. There are no representations, agreements, arrangements, or
understandings, oral or written, between or among the parties hereto relating to
the subject matter of this Agreement that are not fully expressed herein.
9.15 Survival of Representations and Warranties. All representations,
warranties, covenants, and obligations of the parties hereto shall survive the
Closing for a period of 18 months thereafter.
9.16 Multiple Counterparts. This Agreement may be executed in multiple
counterparts, including by facsimile signature, each of which shall be deemed to
be an original but all of which together shall constitute one and the same
instrument.
9.17 Disclosure on Schedules. Disclosure of a specific item in any one
Schedule hereto shall be deemed a disclosure as to all other applicable
Schedules if there is an explicit cross-reference to another Schedule.
9.18 Limitations on Liability. The Buyer and the Seller and their
respective Indemnitees shall not be entitled to assert any right to
indemnification or any claim for breach of contract hereunder until the
aggregate amount of all Damages suffered by such party and its respective
Indemnitees exceeds $25,000. Claims for indemnification or for breach of
contract by the Buyer Indemnitees hereunder shall be settled solely by offset of
the valid indemnity or breach of contract claim against (a) the Principal Amount
and any accrued and unpaid interest thereon and (b) the Shares by redemption and
cancellation of Shares at the Share Value for no consideration; provided,
however, that there is no limitation on the amount of Damages a Buyer Indemnitee
may seek with respect to indemnity or breach of contract claims under Sections
3.07, 3.09 and 3.15 of this Agreement. In no event shall the directors,
officers, employees or shareholders of the Seller, in their capacity as such, be
liable to the Buyer except in the case of fraud or malfeasance. To the extent
that Section 3.08 of this Agreement is breached with respect to any item not
relating to the Assets or the Assumed Liabilities, the Buyer Indemnitees shall
have no right of indemnification or claim for breach of contract against the
Seller. Even though a breach of a representation or warranty under this
Agreement may not have occurred because the $10,000 materiality threshold in the
definition of "Material Adverse Effect" in Article VIII above has not been met,
if the amount of damages or losses suffered by the Buyer Indemnitees under this
Agreement exceeds $25,000, then the Buyer Indemnitees may seek indemnification
from or claim for breach of contract against the Seller for such damages or
losses.
[Remainder of page intentionally left blank.]
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
THE SELLER:
AMERITECH ENVIRONMENTAL, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President and CEO
THE BUYER:
MEDSOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
23
EXHIBIT A
---------
FORM OF PROMISSORY NOTE
PROMISSORY NOTE
$750,000 Dallas, Texas _____________, 2003
FOR VALUE RECEIVED, the undersigned, MedSolutions, Inc., a Texas
corporation (the "Maker"), hereby unconditionally promises to pay to the order
of Ameritech Environmental, Inc., a Texas corporation (the "Payee"), at such
place as designated by the Payee, or at such other place or to such other party
or parties as may be designated by the Payee from time to time, in lawful money
of the United States of America, the principal amount of $750,000 (the
"Principal Amount"), secured by certain of the assets of the Maker as described
in the Security Agreement entered into by Maker and Payee and dated as of
___________, 2003, with simple interest at an annual rate of 7.0%
1. This Promissory Note (the "Note") shall be due and payable in 11
interest-only installments due monthly and with the Principal Amount and the
final interest payment due on the first anniversary of this Note (the "Maturity
Date"). Each payment shall be made on the first day of each month, commencing on
December 1, 2003. Each date on which a payment is due, including the Maturity
Date, shall be referred to herein as a "Payment Date"; provided, however, that
if a Payment Date should fall on a Saturday, Sunday, or bank holiday, then the
Payment Date shall be the next business day. The Maker may prepay any portion or
this entire Note without penalty at any time. Any prepayment will be applied
first against accrued but unpaid interest and then against the outstanding
principal balance. At the request of the Payee, the Maker may make any payments
due under the Note directly to the creditors of the Payee. The Payee hereby
acknowledges that this Note and the Principal Amount are subject to certain
offset rights by the Maker pursuant to that certain Asset Purchase Agreement
(the "Asset Purchase Agreement") entered into by and between the Maker and the
Payee as of the date hereof. To the extent that any interest is paid on the Note
and the Principal Amount is subsequently reduced in accordance with the terms of
the Asset Purchase Agreement, any excess interest previously paid will be
credited against the future interest payment(s) and/or the Principal Amount such
that the amount of interest paid on the Principal Amount does not exceed 7.0%.
2. If the Maker fails to pay the full amount then due on any Payment
Date and such failure remains uncured for a period of 10 calendar days following
written notice of such default by the Payee, then, at the election of the Payee,
this Note shall immediately become due and payable in full, interest on such
principal amount and unpaid interest shall thereafter accrue at the lesser of
12% or the highest lawful rate permissible under applicable law (the "Default
Rate"), and the Payee shall be entitled to pursue any remedy to which it is
entitled under applicable law.
3. The makers, signers, sureties, guarantors, and endorsers of this
Note severally waive valuation and appraisal, demand, presentment, notice of
dishonor, notice of intent to demand or accelerate payment hereof, notice of
demand, notice of acceleration, diligence in collecting, grace, notice, and
protest. If this Note is not paid when due, the Maker agrees to pay all costs of
collection, including, but not limited to, reasonable attorneys' fees and all
expenses incurred by the holder hereof on account of any such collection,
whether or not suit is filed hereon.
4. The Maker shall have no right of setoff, counterclaim, recoupment or
other deduction with respect to the payment required hereunder, and such payment
constitutes the absolute and unconditional obligation of the Maker.
5. Each right and remedy available to the holder hereof shall be
cumulative of and in addition to each other such right and remedy. No delay on
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the part of the holder hereof in the exercise of any right or remedy available
to the holder hereof shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude other or further exercise thereof or exercise
of any other such right or remedy.
6. Regardless of any provision contained in this Note, Payee shall
never be entitled to receive, collect or apply, as interest on this Note, any
amount in excess of the maximum lawful rate permitted by applicable law and, in
the event Payee ever receives, collects or applies as interest any such excess,
such amount that would be excessive interest shall be deemed a partial
prepayment of principal and treated under this Note as such by Maker. In
determining whether or not the interest paid or payable on this Note exceeds
such maximum lawful rate, Maker and Payee shall, to the maximum extent permitted
under applicable law, (a) characterize any nonprincipal payment as an expense,
fee or premium rather than as interest, (b) exclude voluntary prepayments and
the effects thereof, and (c) amortize, prorate, allocate and spread, in equal
parts, the total amount of interest throughout the entire contemplated term of
this Note so that the interest rate does not exceed the maximum lawful rate at
any time during the entire term of this Note. However, if this Note is paid in
full or all or a portion of the principal is set off under the Asset Purchase
Agreement prior to the scheduled maturity hereof, and if the interest received
for the actual period of existence thereof exceeds such maximum lawful rate,
Payee shall refund the amount of such excess and shall not be subject to any
applicable penalties provided by any laws for contracting for, charging, taking,
reserving or receiving interest in excess of such maximum lawful rate.
7. This Note is the promissory note referred to and is entitled to the
benefits of and security afforded by that certain Security Agreement dated as of
November __, 2003, executed by Maker in favor of Payee and covering the
collateral described therein (the "Security Agreement"). This Note is subject to
the Security Agreement which, among other things, provides for acceleration of
the maturity hereof upon the occurrence of certain events.
8. Payee shall be entitled to assign all or a portion of this Note to
an Affiliate (as such term is defined in the Asset Purchase Agreement dated of
even date herewith by and between Maker and Payee) without the consent of Maker.
Maker shall reissue the Note to the transferee(s) upon receipt of written notice
of the transfer and evidence of transferee(s)' status as an Affiliate.
9. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS RULES OR CHOICE OF LAWS RULES THEREOF.
EXECUTED effective as of the date first set forth above.
MAKER:
MedSolutions, Inc.
By: ________________________________
Xxxxxxx X. Xxxxxxx, President/CEO
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EXHIBIT B
---------
FORM OF SECURITY AGREEMENT
SECURITY AGREEMENT
This Security Agreement, dated effective as of _____________, 2003 (the
"Agreement"), is entered into by and between MedSolutions, Inc., a Texas
corporation (the "Pledgor"), and AmeriTech Environmental, Inc., a Texas
corporation (the "Secured Party").
WITNESSETH:
WHEREAS, on even date herewith, the Pledgor has issued a Promissory
Note (the "Note") to Secured Party evidencing indebtedness in the principal
amount of $750,000.00 with simple interest at the annual rate of 7.0% payable in
11 interest-only installments due monthly, and with the principal amount and the
final interest payment due on the first anniversary of the Note;
WHEREAS, the Pledgor has agreed to secure the payment of the Note by
the pledge to the Secured Party of all of the Pledgor's right, title, and
interest in certain of the assets of Pledgor as set forth on Exhibit A attached
hereto (the "Assets");
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and undertakings herein, and for such other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties to this Agreement hereby agree as follows:
ARTICLE I
---------
PLEDGE
1.01 Pledge of Collateral. The Pledgor hereby grants to the Secured
Party a first-lien security interest in the Assets, together with all proceeds
thereto and accretions thereon (collectively, the "Collateral").
1.02 Secured Obligation. The security interest granted by this
Agreement shall secure the Pledgor's payment and performance under the Note,
together with any and all renewals, extensions, and modifications of the same,
and all costs of collection thereunder (the "Obligations").
1.03 Termination of Agreement. This Agreement and the security interest
created hereby shall terminate as of the date on which the Obligations, and any
other amounts that the Pledgor may owe to the Secured Party as a result of this
Agreement, including, but not limited to, Sections 3.03 and 4.13 below, are paid
in full. Upon the termination of this Agreement, the Secured Party shall, as
soon as practical but in no event later than 30 days, file a termination with
respect to any financing statement(s) that may have been filed pursuant to this
Agreement.
ARTICLE II
----------
REPRESENTATIONS AND COVENANTS OF THE PLEDGOR
2.01 Representations with Respect to the Collateral. The Pledgor
represents and warrants that (i) the Pledgor has the legal capacity to enter
into this Agreement; (ii) except for any financing statement that may be filed
by the Secured Party with respect to the Collateral, no financing statement
covering the Collateral, or any part thereof, has been filed with any filing
officer or agency; (iii) no other security agreement covering the Collateral, or
any part thereof, has been made and no security interest, other than the one
created herein, has attached to or been perfected in the Collateral or in any
part thereof; (iv) no dispute, right of setoff, counterclaim, or defense exists
with respect to any part of the Collateral; (v) the Collateral is not subject to
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the interest of any third person, and the Pledgor will defend the Collateral and
its proceeds against the claims and demands of any third person claiming against
the Pledgor to the extent that such claims are adverse to the Secured Party's
rights to the collateral; (vi) the Pledgor has delivered true and correct asset
descriptions of the Collateral; and (vii) the Pledgor is owner of the
Collateral.
2.02 Affirmative Covenants of the Pledgor. The Pledgor covenants and
agrees to each and all of the following: (i) to promptly execute and deliver to
the Secured Party all such other assignments, certificates, and supplemental
writings, and to do all other acts or things, as the Secured Party may
reasonably request in order more fully to evidence and perfect the security
interest created herein; (ii) to promptly furnish the Secured Party with any
information or writings that the Secured Party may reasonably request concerning
the Collateral; (iii) to promptly notify the Secured Party of any change in any
material fact or circumstances warranted or represented by the Pledgor in this
Agreement or in any other writings furnished by the Pledgor to the Secured Party
in connection with the Collateral; (iv) to promptly notify the Secured Party of
any claim, action, or proceeding affecting title to the Collateral, or any part
thereof, or the security interest herein, and at the request of the Secured
Party, to appear in and defend, at the Pledgor's sole expense, any such action
or proceeding; and (v) to promptly pay to the Secured Party the amount of all
court costs and reasonable attorneys' fees incurred by the Secured Party in the
enforcement of its rights hereunder; (vi) demand, notice, protest, notice of
intent to accelerate, notice of acceleration and all demands and notices of any
action taken by the Secured Party under this Security Agreement or in connection
with the Note, except as otherwise provided in this Security Agreement, are
hereby waived, and any indulgence of the Secured Party, substitution for, or
exchange or release of, Collateral, in whole or in part, or addition or release
of any person liable on the Collateral is hereby assented and consented to by
the Pledgor; (vii) the Pledgor will not subject the Collateral to any lien or
security interest, except in favor of the Secured Party, or assign any part or
all of the Collateral to any party other than the Secured Party; and (ix) the
Pledgor shall pay prior to delinquency all taxes, charges, liens and assessments
against the Collateral, and upon the Pledgor's failure to do so, the Secured
Party, at its option, may pay any of them. Such payment shall become part of the
indebtedness and obligations secured by this Security Agreement and shall be
paid to the Secured Party by the Pledgor immediately and without demand, with
interest thereon at the Default Rate (as such term is defined in the Note).
2.03 Negative Covenants of the Pledgor. The Pledgor covenants and
agrees that, without the prior written consent of the Secured Party, the Pledgor
will not (i) sell, assign, or transfer any of the Pledgor's rights in the
Collateral other than in the ordinary course of business with respect to
inventory; or (ii) create any other security interest in, mortgage, or otherwise
encumber the Collateral or any part thereof, or permit the Collateral to be or
become subject to any lien, attachment, execution, sequestration, other legal or
equitable process, or any encumbrance of any kind or character, except the
security interest created herein.
ARTICLE III
-----------
DEFAULT AND RIGHTS AND REMEDIES OF THE SECURED PARTY
3.01 Definition of Default. The term "Default," as used herein, means
the occurrence of any of the following events: (i) the failure of the Pledgor to
make any payment (whether at maturity or otherwise) of principal or interest on
the Note when due and payable under the Note; (ii) except as otherwise provided
in this Section 3.01, the failure of the Pledgor to perform any material
covenant, agreement, or condition contained herein, which failure continues for
a period of 10 days after the Secured Party gives written notice thereof; (iii)
the levy against the Collateral, or any part thereof, of any execution,
attachment, sequestration, or other writ; (iv) the appointment of a receiver
with respect to the Collateral, or any part thereof; (v) the filing by the
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Pledgor, by way of petition or answer, of any petition or other pleading seeking
relief as a debtor, or an adjustment of the Pledgor's debts, or any other relief
under any bankruptcy, reorganization, or insolvency laws now or hereafter
existing; or (vi) the receipt by the Secured Party of information establishing
that any representation or warranty made by the Pledgor herein is false,
misleading, or erroneous in any material respect and such default is not cured
within 20 days thereafter.
3.02 Remedies Upon Event of Default. Upon the occurrence of a Default
and the continuance thereof, in addition to any and all other rights and
remedies that the Secured Party may then have hereunder, under the Uniform
Commercial Code as enacted in the State of Texas (the "Code"), or otherwise, the
Secured Party at its option may, subject to any limitation or restriction
imposed by any applicable bankruptcy, insolvency, or debtor-relief law, (i)
after notification required pursuant to Section 3.03 hereof, sell or otherwise
dispose of, at the Pledgor's principal place of business, or elsewhere, as
chosen by the Secured Party, all or any part of the Assets, and any such sale or
other disposition may be as a unit or in parcels, by public or private
proceedings, and by way of one or more contracts (it being agreed that the sale
of any part of the Assets shall not exhaust the Secured Party's power of sale,
but sales may be made from time to time until all of the Assets have been sold
or until the Obligations have been paid in full), and at any such sale it shall
not be necessary to exhibit the Assets; (ii) reduce its claim to judgment,
foreclose, or otherwise enforce its security interest in all or any part of the
Collateral by any available judicial procedure; (iii) with the consent of the
Pledgor, retain the Collateral in complete satisfaction of the Obligations
whenever the circumstances are such that the Secured Party is entitled to do so
under the Code, provided only that the Secured Party comply with all applicable
procedural requirements imposed by the Code; (iv) apply by appropriate judicial
proceedings for appointment of a receiver for the Collateral, or any part
thereof; (v) buy the Collateral at any public sale; and (vi) buy the Collateral
at any private sale if the collateral is of a type customarily sold in a
recognized market or is of a type which is the subject of widely distributed
standard price quotations. The Secured Party shall be entitled to apply the
proceeds of any distribution, sale, or other disposition of the Collateral in
the following order: first, to the payment of all of its reasonable expenses
incurred as a result of the Pledgor's Default, including, but not limited to,
holding and preparing the Collateral, or any part thereof, for sale or other
disposition, in arranging for such sale or other disposition, and in actually
selling the same; and second, toward payment of the Obligations in such order
and manner as the Secured Party, in its discretion, may deem advisable. Except
in the case of clause (iii) above, the Secured Party shall remit to the Pledgor
any surplus. If the proceeds are not sufficient to satisfy the Obligations in
full, the Pledgor shall remain personally liable for any deficiency with respect
thereto.
3.03 Sale of Collateral. Reasonable notification of the time and place
of any public sale of the Collateral, or reasonable notification of the time
after which any private sale or other intended disposition of the Collateral is
to be made, shall be sent to the Pledgor, and to any other person entitled under
the Code to notice; provided, however, that if the Collateral is declining, or
threatens to decline, speedily in value, or is of a type customarily sold on a
recognized market, the Secured Party may sell or otherwise dispose of the
Collateral without notification, advertisement, or other notice of any kind. It
is agreed that notice sent or given not less than 20 calendar days prior to the
taking of the action to which the notice relates is reasonable notification and
notice for the purpose of this Section 3.03.
ARTICLE IV
----------
MISCELLANEOUS
4.01 Rights and Remedies Cumulative. All rights and remedies of the
Secured Party hereunder are cumulative of each other and of every other right or
remedy that the Secured Party may otherwise have at law or in equity or under
any other contract or other writing for the enforcement of the security interest
herein or the collection of the Obligations, and the exercise of one or more
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rights or remedies shall not prejudice or impair the concurrent or subsequent
exercise of other rights or remedies. Should the Pledgor have heretofore
executed or hereafter execute any other security agreement in favor of the
Secured Party, the security interest therein created and all other rights,
powers, and privileges vested in the Secured Party by the terms thereof shall
exist concurrently with the security interest created herein.
4.02 Binding Agreement. This Security Agreement shall be binding upon
and inure to the benefit of the respective successors, representatives, and
assigns of the Pledgor and the Secured Party, provided, however, that the
Pledgor may not assign or transfer its rights or duties hereunder without the
prior written consent of the Secured Party.
4.03 Waiver of Rights. No waiver by the Secured Party of any Default
shall be deemed to be a waiver of any other subsequent Default, nor shall any
such waiver by the Secured Party be deemed to be a continuing waiver. No delay
or omission by the Secured Party in exercising any right or power hereunder, or
under any other writings executed by the Pledgor as security for or in
connection with the Obligations, shall impair any such right or power or be
construed as a waiver thereof or any acquiescence therein, nor shall any single
or partial exercise of any such right or power preclude other or further
exercise thereof, or the exercise of any other right or power of the Secured
Party hereunder or under such other writings.
4.04 Subrogation. If the Obligations, or any part thereof, be given in
renewal or extension, or applied toward the payment of indebtedness secured by
mortgage, pledge, security agreement, or other lien, the Secured Party shall be,
and is hereby, subrogated to all of the rights, titles, security interests, and
other liens securing the indebtedness so renewed, extended, or paid.
4.05 Usury Savings Clause. No provision herein shall require the
payment or permit the collection of interest in excess of the maximum permitted
by law, if any. If any excess of interest in such respect is provided for
herein, the provisions of this Section 4.05 shall govern, and the Pledgor shall
not be obligated to pay the amount of such interest to the extent that it is in
excess of the amount permitted by law.
4.06 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS RULES OR CHOICE OF LAWS RULES THEREOF.
4.07 Agreement as Financing Statement. The Secured Party shall have the
right at any time to execute and file this Agreement as a financing statement
within the meaning of the Code, but the failure of the Secured Party to do so
shall not impair the validity or enforceability of this Agreement.
4.08 Further Assurances. Each party hereto agrees to perform any
further acts and to execute and deliver any further documents that may be
reasonably necessary to carry out the provisions of this Agreement.
4.09 Severability. In the event that any of the provisions, or portions
thereof, of this Agreement are held to be unenforceable or invalid by any court
of competent jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, shall not be affected thereby.
4.10 Construction. Whenever used herein, the singular number shall
include the plural, and the plural number shall include the singular.
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4.11 Gender. Any references herein to the masculine gender, or to the
masculine form of any noun, adjective, or possessive, shall be construed to
include the feminine or neuter gender and form, and vice versa.
4.12 Headings. The headings contained in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
of any of the provisions contained herein.
4.13 Court Costs and Attorneys' Fees. If any action at law or in
equity, including an action for declaratory relief, is brought to enforce or
interpret the provisions of this Agreement, the prevailing party shall be
entitled to recover costs of court and reasonable attorneys' fees from the other
party or parties to such action, which fees may be set by the court in the trial
of such action or may be enforced in a separate action brought for that purpose,
and which fees shall be in addition to any other relief that may be awarded.
4.14 Inurement. Subject to the restrictions against transfer or
assignment as herein contained, the provisions of this Agreement shall inure to
the benefit of, and shall be binding on, the assigns, successors in interest,
personal representatives, estates, heirs, and legatees of each of the parties
hereto.
4.15 Amendment. This Agreement may be amended only by the unanimous
written consent of the parties hereto.
4.16 Entire Agreement. This Agreement and the Note contain the entire
understanding between the parties hereto concerning the subject matter contained
herein. There are no representations, agreements, arrangements, or
understandings, oral or written, between or among the parties hereto relating to
the subject matter of this Agreement that are not fully expressed herein.
4.17 Multiple Counterparts. This Agreement may be executed in multiple
counterparts, including by facsimile signature, each of which shall be deemed to
be an original but all of which together shall constitute one and the same
instrument.
[The remainder of page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties to this Agreement have set their
respective hands hereto as of the date first written above.
PLEDGOR:
MedSolutions, Inc.
By: _________________________________
Xxxxxxx X. Xxxxxxx, President/CEO
SECURED PARTY:
AmeriTech Environmental, Inc.
By: _________________________________
Xxxxxxxx X. Xxxxxx, President/CEO
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Exhibit A
---------
ASSETS
EXHIBIT C
---------
FORM OF XXXX OF SALE AND
ASSIGNMENT AND ASSUMPTION AGREEMENT
XXXX OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT
----------------------------------------------------
THE STATE OF TEXAS )
) KNOWN BY ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS )
THIS XXXX OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT (this
"Agreement") is effective as of ________________, 2003 (the "Closing Date"), by
and between AmeriTech Environmental, Inc., a Texas corporation ("Assignor"), and
MedSolutions, Inc., a Texas corporation ("Assignee").
Assignee is a party to that certain Asset Purchase Agreement dated as
of November 7, 2003 by and among Assignee and Assignor (the "Purchase
Agreement"). The Purchase Agreement contemplates the making and delivery of this
Agreement. Capitalized terms used in this Agreement but not otherwise defined
herein shall have the meanings given to such terms in the Purchase Agreement.
NOW, THEREFORE, as contemplated by the Purchase Agreement, and for good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Effective as of the Closing Date, Assignor hereby sells, conveys,
assigns, transfers, and delivers to Assignee, its successors and assigns,
forever, and Assignee hereby accepts, all of Assignor's right, title, and
interest in and to all of the properties and assets listed on Exhibit A attached
hereto (the "Assigned Assets"), free and clear of all liens, charges, security
interests, encumbrances, and restrictions of whatever nature, except as
otherwise set forth pursuant to the Purchase Agreement, and the Assignor does
hereby bind itself and its successors and assigns to WARRANT and FOREVER DEFEND,
all and singular, title to the Assigned Assets unto the Assignee, its successors
and assigns, against every person whomsoever lawfully claiming or to claim the
same, or any part thereof. Except as otherwise set forth pursuant to the
Purchase Agreement, it is agreed that the Assignee shall not be responsible for
the discharge and performance of any duties or obligations required to be
performed and/or discharged in connection with the Assigned Assets on or prior
to the Closing Date, and Assignor agrees to indemnify, as set forth in Article
VII of the Purchase Agreement, save, and hold harmless the Assignee from and
against any and all losses, costs, damages, liabilities, expenses (including
reasonable attorneys' fees) actions, claims, or causes of action existing in
favor of or asserted by any party arising from or related to any failure by the
Assignor to perform or discharge its obligation as the owner of the Assigned
Assets on and prior to the Closing Date.
2. Effective as of the Closing Date, Assignee hereby assumes and agrees
to pay, discharge, and perform when due certain of Assignor's debts,
liabilities, and obligations (whether accrued, absolute, contingent or
otherwise, whether known or unknown, whether due or to become due, and
regardless of when or by whom asserted) (the "Assumed Liabilities") listed on
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Exhibit B attached hereto. Assignee hereby indemnifies, as set forth in Article
VII of the Purchase Agreement, and holds harmless Assignor from and against any
and all liabilities, costs, losses, and expenses arising from or relating to the
Assumed Liabilities.
3. The Assignor hereby constitutes and appoints the Assignee as the
Assignor's true and lawful attorney, with full power of substitution, for it and
in its name, place, and stead, or otherwise, but on behalf of and or the benefit
of the Assignee, to demand and receive from time to time any and all Assigned
Assets and Assumed Liabilities, hereby sold, assigned, and conveyed, or intended
so to be, and to get receipts and release for and in respect of the same or any
part thereof, and from time to time to institute and prosecute in the name of
the Assignor or otherwise, but at the expense and for the benefit of the
Assignee, any and all proceedings at law, inequity or otherwise, that the
Assignee may deem proper in order to collect, assert, or enforce any claim,
right, or title, of any kind, in and to the Assigned Assets and Assumed
Liabilities hereby assigned and conveyed, or intended so to be, and to defend
and compromise any and all actions, suits, or proceedings relating to any of the
said Assigned Assets and Assumed Liabilities, and generally to do all and any
such acts and things in relation thereto as the Assignee shall deem advisable.
4. Notwithstanding any other provision in this Agreement to the
contrary, in the event that any Assigned Asset is not legally or equitably
assignable (whether pursuant to its express terms or otherwise) at the Closing
Date, or if the purported assignment of such Assigned Asset pursuant to this
Agreement would adversely affect, or diminish the value to Assignee of, such
Assigned Asset, then in any such case (a) such Assigned Asset shall not be
deemed assigned to Assignee hereunder, (b) Assignor shall, until such time as
such Assigned Asset is so assignable without any such adverse effect or
diminution in value, hold such Assigned Asset in trust for the benefit of
Assignee, and act as agent of Assignee in order to obtain for Assignee the
economic and other benefits of such Assigned Asset as though such Assigned Asset
had been assigned to Assignee hereunder, (c) Assignor shall transfer or deliver
to Assignee any and all sums, proceeds and other consideration received or
collected by Assignor in respect of such Assigned Asset or as a result of any
liquidation or other capitalization thereof, and (d) if and when such Assigned
Asset thereafter becomes so assignable without any such adverse effect or
diminution in value, then Assignor shall promptly, at Assignee's reasonable
request and without further consideration, execute and deliver such instruments
of conveyance and transfer and take such action to effect, consummate, confirm
and evidence the transfer to Assignee of such Assigned Asset.
5. Each party hereby covenants that, from and after the Closing Date,
upon the other party's reasonable request and without further consideration,
such party shall execute and deliver such further instruments of conveyance and
transfer and take such additional action to effect, consummate, confirm and
evidence the transfer to Assignee of the Assigned Assets and the assumption by
Assignee of the Assumed Liabilities.
6. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same Agreement.
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7. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS RULES OR CHOICE OF LAWS RULES THEREOF.
8. This instrument shall insure to the benefit of, and be binding upon,
the parties hereto and their respective successors and assigns.
[The remainder of page is intentionally left blank.]
C-3
IN WITNESS WHEREOF, Assignor and Assignee have caused this Agreement to
be executed and delivered as of the date first written above.
ASSIGNOR:
AMERITECH ENVIRONMENTAL, INC.
By: _________________________________
Xxxxxxxx X. Xxxxxx, President/CEO
ASSIGNEE:
MEDSOLUTIONS, INC.
By: _________________________________
Xxxxxxx X. Xxxxxxx, President/CEO
C-4
ACKNOWLEDGMENT
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
The foregoing instrument was acknowledged before me this _____ day of
__________ 2003, by Xxxxxxxx X. Xxxxxx, President and CEO of Ameritech
Environmental, Inc., on behalf of said corporation.
___________________________________________
Notary Public for and in the State of Texas
[SEAL]
___________________________
My commission expires
C-5
ACKNOWLEDGMENT
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
The foregoing instrument was acknowledged before me this _____ day of
__________ 2003, by Xxxxxxx Xxxxxxx, President and CEO of MedSolutions, Inc., on
behalf of said corporation.
___________________________________________
Notary Public for and in the State of Texas
[SEAL]
___________________________
My commission expires
C-6
EXHIBIT A
---------
__________________________________________________________
Assigned Assets
C-7
EXHIBIT B
---------
__________________________________________________________
Assumed Liabilities
C-8
EXHIBIT D
AMERITECH ENVIRONMENTAL, INC.
CERTIFICATE OF SECRETARY
This Certificate of Secretary is made and attested to this ___ day of
_____, 2003, pursuant to the Asset Purchase Agreement dated _______ ___, 2003
(the "Agreement"), by and between MedSolutions, Inc., a Texas corporation (the
"Buyer"), and AmeriTech Environmental, Inc., a Texas corporation (the "Seller").
1. The Seller has provided the Buyer with the Articles of Incorporation
of the Seller, including all amendments thereto as of this date, and the Bylaws
of the Seller, including all amendments thereto as of this date, and I hereby
certify and attest that such documents are true, complete, and presently in
effect.
2. The Seller has provided the Buyer with a copy of the Action by
Unanimous Written Consent of the Board of Directors of the Seller, which
approves the Agreement and the execution thereof by the President of the Seller,
and I hereby certify and attest that such Action by Unanimous Written Consent is
true and complete and has not been rescinded.
3. The Seller has provided the Buyer with a copy of the Action by
Written Consent of shareholders of the Seller, executed by each and every
shareholder of the Seller as of the date hereof, approving the adoption of the
Agreement and the transaction contemplated thereby, and I hereby certify and
attest that such Action by Written Consent is true and complete and has not been
rescinded.
IN WITNESS WHEREOF, I have set my hand hereto as of the date first
written above.
________________________________________
_____________________________, Secretary
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EXHIBIT E
---------
FORM OF SHAREHOLDER LOCK-UP AGREEMENT
LOCK-UP AGREEMENT
MedSolutions, Inc.
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Dear Sirs:
The undersigned, a shareholder of MedSolutions, Inc., (the "Company"),
understands that the Company has filed with the Securities and Exchange
Commission ("SEC") a Form 10-SB (the "Form 10-SB") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and as a result thereof
the Company has become a fully reporting Company under the Exchange Act, thus
creating the statutory foundation for the development of a public market for the
Company's common stock, par value $.001 per share (the "Common Stock"). The
Company's management believes that the Company soon will be in a position to
have the trading of the Common Stock quoted on the OTC Bulletin Board(R), after
certain steps are completed, including the execution of this Lock-Up Agreement
by a sufficient number of the Company's shareholders. In recognition of the
benefit that the quotation of the trading of the Common Stock would confer upon
the undersigned as a shareholder of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with the Company that, except for the "Allowable
Transactions" defined herein, during the period of twelve (12) months following
the date on which the Common Stock is initially quoted on the OTC Bulletin
Board(R) or other national exchange (the "Effective Date"), the undersigned will
not, without the prior written consent of the Company, directly or indirectly,
with regard to shares of Common Stock held by the undersigned on the Effective
Date but not shares of Common Stock acquired thereafter, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant for the sale of,
or otherwise dispose of hypothecate, or transfer any shares of Common Stock or
any securities convertible into or exchangeable or exercisable for Common Stock,
or request that the Company file any registration statement under the Securities
Act of 1933, as amended, with respect to any of the foregoing or (ii) enter into
any swap or any other agreement or any transaction that transfers, in whole or
in part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction is to be settled by delivery
of Common Stock or other securities, in cash or otherwise (collectively the
"Lock-Up Provisions").
The Company's consent, however, is not required for the following
transfers (the "Allowable Transactions"): (a) after the expiration of one year
from the Effective Date, 20% of the shares of Common Stock owned by the
undersigned will no longer be subject to the Lock-Up Provisions; (b) after the
expiration of 90 days following the completion of one year from the Effective
Date, 40% of the shares of Common Stock owned by the undersigned will no longer
be subject to the Lock-Up Provisions; (c) after the expiration of 180 days
following the completion of one year from the Effective Date, 60% of the shares
of Common Stock owned by the undersigned will no longer be subject to the
Lock-Up Provisions; (d) after expiration of 270 days following the completion of
one year from the Effective Date, 80% of the shares of Common Stock owned by the
undersigned will no longer be subject to the Lock-Up Provisions; (e) after
expiration of two years from the Effective Date, 100% of the shares of Common
Stock owned by the undersigned will no longer be subject to the Lock-Up
Provisions; (f) a bona fide gift or gifts made by the undersigned, provided that
the donee of such shares of Common Stock or securities convertible into or
exchangeable or exercisable for any shares of Common Stock agree in writing to
be bound by the terms of this letter agreement prior to such gift; (g) a
distribution to partners or stockholders of the undersigned (and to any direct
or indirect partner or stockholder thereof), provided that the ultimate
distributees of such shares of Common Stock or securities convertible into or
exchangeable or exercisable for any shares of Common Stock agree in writing to
be bound by the terms of this letter agreement prior to such distribution; or
E-1
(h) transfers, without consideration, of shares of Common Stock or securities
convertible into or exchangeable or exercisable for any shares of Common Stock
to family members or to one or more trusts established for the benefit of one or
more family members, provided that the transferee of such shares of Common Stock
or securities convertible into or exchangeable or exercisable for any shares of
Common Stock agree in writing to be bound by the terms of this letter agreement
prior to such transfer. The undersigned further agrees for the Company to place
a restrictive legend on any share certificates representing shares of Common
Stock that are subject to the Lock-Up Provisions, and to place stop-transfer
orders with the Company's transfer agent in order to prevent the transfer of
shares of Common Stock in contravention of the Lock-Up Provisions. This letter
agreement, once executed by the undersigned shareholder of the Company, shall
supersede and replace in its entirety any prior lock-up arrangement the
shareholder may have entered into with the Company.
Very truly yours,
AMERITECH ENVIRONMENTAL, INC.
By:_________________________________
Xxxxxxxx X. Xxxxxx, President/CEO
MEDSOLUTIONS, INC.
By:_________________________________
Xxxxxxx X. Xxxxxxx, President/CEO
E-2
EXHIBIT F
---------
MEDSOLUTIONS, INC.
CERTIFICATE OF SECRETARY
This Certificate of Secretary is made and attested to this ___ day of
______, 2003, pursuant to the Asset Purchase Agreement dated ______ ___, 200_
(the "Agreement"), by and between MedSolutions, Inc., a Texas corporation (the
"Buyer"), and AmeriTech Environmental, Inc., a Texas corporation (the "Seller").
The Buyer has provided the Seller with a copy of the Action by
Unanimous Written Consent of the Board of Directors of the Buyer, which approves
the Agreement and the execution thereof by the President of the Buyer, and I
hereby certify and attest that such Action by Unanimous Written Consent is true
and complete and has not been rescinded.
IN WITNESS WHEREOF, I have set my hand hereto as of the date first
written above.
________________________________________
_____________________________, Secretary
F-1
EXHIBIT G
---------
FORM OF NON-COMPETITION AND NON-SOLICITATION AGREEMENT
CONFIDENTIALITY AND
NON-COMPETITION AGREEMENT
This Confidentiality and Non-competition Agreement (the "Agreement") is
made and entered into as of ___________, 2003, by and between
________________________________, an individual (the "Seller Representative"),
and MedSolutions, Inc., a Texas corporation (the "Company").
RECITALS:
A. The Company is purchasing certain assets (the "Assets") of AmeriTech
Environmental, Inc. (the "Seller"), of which the Seller Representative is an
officer, director, shareholder and/or employee, as set forth in that certain
Asset Purchase Agreement, dated November 7 2003, (the "Purchase Agreement")
between the Company and the Seller. This Agreement is ancillary to and part of
such Purchase Agreement.
B. The Company's business and success are based on the use of
proprietary and confidential information and trade secrets that are valuable and
unique assets of the Company. In connection with the Purchase Agreement between
the Company and the Seller, the Seller Representative will receive and have
access to and knowledge of proprietary and confidential information and trade
secrets of the Company, its suppliers and its customers.
C. The Seller Representative is intimately familiar with confidential
information and trade secrets of the Seller. The Seller Representative is also
in a position to affect the goodwill associated with the Seller's business and
the Assets. Further, the Seller Representative acknowledges that the Company is
purchasing such confidential information, trade secrets, and goodwill of the
Seller in the Purchase Agreement.
D. The Seller Representative's access to and knowledge of proprietary
and confidential information, trade secrets, and goodwill of the Seller and the
Company will present the Seller Representative with the opportunity to benefit
himself and others wrongly at the expense of the Company, its customers, and the
Seller, if the Seller Representative does not abide by the terms of this
Agreement. If the Seller Representative were to compete with the Company, it
would be highly unlikely that the Seller Representative could do so without
misappropriating for himself or for any competing employer information obtained
through his employment with the Company or the Seller, thereby causing
irreparable harm to the business of the Company and also frustrating and
defeating the entire purpose of the Company's Purchase Agreement with the
Seller.
E. The Seller Representative will receive financial consideration from
the Seller as a result of the Purchase Agreement, given the Seller
Representative's position as an officer, director, shareholder and/or employee
of the Seller.
G-1
F. In addition to this Agreement, the Seller Representative may be
entering into an employment or consulting agreement with the Company as part of
the Purchase Agreement. If so, this Agreement is ancillary to such employment or
consulting agreement.
G. For purposes of this Agreement, the term "Company" shall mean and
include the Company and its affiliates, and all of their direct and indirect
subsidiaries.
AGREEMENTS:
THEREFORE, in exchange for the consideration contained herein, as well
as the consideration contained in the Purchase Agreement, employment agreement
and/or consulting agreement, or inuring to the Seller Representative's benefit
as a result of such agreements, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Seller Representative
agrees with the Company as follows:
ARTICLE I
CONFIDENTIALITY OF COMPANY INFORMATION
Confidentiality Agreement. The Seller Representative acknowledges that,
during the negotiation of the Purchase Agreement, during the course of his
employment with, management of or ownership of the Seller, and during the course
of his employment or consulting relationship with the Company, if any, the
Seller Representative has or will become privy to certain Confidential
Information (hereinafter defined) of the Company and/or the Assets and the
Seller Representative agrees that he shall not, without the prior written
consent of the Company, at any time, whether before, during, or after the term
of his employment with the Company, if applicable, except as required to perform
his duties of employment with the Company, use, disseminate, disclose, or
communicate any Confidential Information to any person or entity inside or
outside the United States. As used herein, the term "Confidential Information"
means: (i) all information about the Company disclosed or made known to the
Seller Representative as a direct or indirect consequence of or through the
Purchase Agreement, (ii) all information about the Assets disclosed or made
known to the Seller Representative during the course of his employment with,
management of or ownership of the Seller, and (iii) all information about the
Company disclosed or made known to the Seller Representative during the course
of his employment or consulting with the Company, that is not generally known in
the industries in which the Company or any of its affiliates or subsidiaries is
or may become engaged, including, but not limited to, information about: (A)
financial position, product line, customers, suppliers, and market; (B) profit
margins, pricing techniques, or pricing information as to both purchase prices
from suppliers and sale prices to customers; (C) past, present, or future plans
with respect to the business of the Company; (D) bids, negotiations, or
techniques in bidding or negotiating, pursuant to supplier, wholesaler, customer
or other contracts; (E) current or future Company advertising or promotion plans
or programs; (F) any Company system, procedure, or administrative operations;
(G) Company's structure, employees, or processes; and (H) present or future
plans for the extension of the present business or commencement of a new
business by the Company or any subsidiary or division of the Company.
Confidential information shall exclude information that: (w) is already known by
G-2
the receiving party prior to disclosure by the other party from a source other
than the disclosing party and not under a duty of confidentiality to the
Company, (x) is in the public domain, (y) ceases to be confidential through no
fault of the receiving party, or (z) is independently developed by the receiving
party.
ARTICLE II
NON-COMPETITION COVENANTS
2.01 Term of Non-Competition. The "Term of Non-Competition" means the
period beginning on the date hereof and continuing for a period of two years
following the closing date of the Purchase Agreement (as defined therein).
2.02 No Business Competition. During the Term of Non-Competition, the
Seller Representative will not own, manage, operate, join, control or
participate in, directly or indirectly, or be a partner or shareholder of
(except for shares in the Company), any business engaged in the (A) regulated
medical waste transportation business, (B) document destruction or shredding
business, including without limitation the transportation of destroyed or
shredded documents business in the states of Texas, Florida or Oklahoma, (C)
sharps management business, and (D) compliance with the Occupational Safety and
Health Act or the Health Insurance Portability and Accountability Act of 1996
business (collectively, the "Competing Businesses"), and the Seller
Representative shall not render assistance or advice to any person which is so
engaged; provided however, that the passive ownership of less than 2% of the
equity securities of a publicly-traded company that is involved in any of the
foregoing businesses shall be permissible under this Section 2.02.
Notwithstanding anything in this Section 2.02 to the contrary, the Seller
Representative's engagement in any activity as described above shall be
permissible under this Section 2.02 to the extent that the Seller Representative
(X) does not dispose of any materials related to the Competing Businesses for
customers who are regulated medical waste generators, (Y) does not affiliate
with any company engaged in the transportation of regulated medical waste, and
(Z) does not provide assistance or advice to any company other than the Company
that engages in the Competing Businesses. For purposes of clarification, the
execution of a standard disposal contract with a non-affiliated company engaged
in the transportation of regulated medical waste shall not be deemed to violate
clause (Y) above.
2.03 No Solicitation of Company's Customers. During the Term of
Non-Competition, the Seller Representative shall not induce, request, advise,
attempt to influence, or solicit, directly or indirectly, any person or entity
that is an actual or prospective customer of the Company at any time during the
Term of Non-Competition to buy products or services from a competing business.
It is understood that this Section 2.03 shall be in addition to and not
construed as a limitation upon any other covenant in Article II hereof.
2.04 No Solicitation of Employees. During the Term of Non-Competition,
the Seller Representative hereby agrees not to induce, directly or indirectly,
any person who is an employee of the Company to leave the employment of the
Company.
2.05 Tolling of Term. If, during any calendar month within the Term of
Non-Competition, the Seller Representative is not in compliance with the terms
G-3
of this Article II, the Company shall be entitled to, among other remedies,
compliance by the Seller Representative with the terms of this Article II for an
additional number of calendar months that equals the number of calendar months
during which such noncompliance occurred. The term "Term of Non-Competition"
shall also include this additional period.
2.06 Reasonableness of Restrictions. The Seller Representative
acknowledges that the geographic boundaries, scope of prohibited activities, and
time duration of the provisions of this Article II are reasonable and are no
broader than are necessary to maintain the confidentiality of the Confidential
Information and the goodwill associated with the Company's goods and services,
and to protect the other legitimate business interests of the Company, including
its goodwill and the intent of the Purchase Agreement.
ARTICLE III
MISCELLANEOUS
3.01 Continuing Obligation. If the Seller Representative also has an
employment or consulting agreement with the Company, the Seller Representative's
obligations under this Agreement shall continue whether or not the Seller
Representative's employment or consulting with the Company shall be terminated
voluntarily or involuntarily, with or without cause, and whether or not the
Seller Representative or the Company breaches the employment or consulting
agreement between the Seller Representative and the Company, if any.
3.02 Parties Bound. This Agreement shall be binding upon the Seller
Representative, the Seller Representative's heirs, executors, administrators,
and assigns and shall inure to the benefit of the Company, its successors, and
assigns.
3.03 Counterparts. This Agreement may be executed in multiple
counterparts, including by facsimile signature, each of which shall be deemed to
be an original but all of which together shall constitute one and the same
instrument.
3.04 Waiver. The Company may waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of the
Company to any such waiver shall be valid only if set forth in an instrument in
writing signed by the Company.
3.05 Entirety and Amendments. This Agreement constitutes the entire
understanding between the parties with respect to the subject matter hereof,
supersedes all prior agreements or understandings relating to the subject matter
hereof, and may be modified or amended only by an instrument in writing executed
by the parties hereto.
3.06 Headings. The heading contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
3.07 Governing Law. The law of the State of Texas will govern the
interpretation, validity and effect of this Agreement without regard to the
place of execution or the place of performance thereof.
G-4
3.08 Invalid Provisions and Request for Reformation. If any provision
of this Agreement (including, without limitation, any provision relating to the
activities covered by, or time period of, the non-competition covenants of
Article II) is held to be illegal, invalid, or unenforceable under present or
future laws effective during the term hereof, such provision shall be fully
severable; this Agreement shall be construed and enforced as if such illegal,
invalid, or unenforceable provision had never comprised a part hereof; and the
remaining provisions shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision, there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible that is legal, valid, and enforceable, and the
Company hereby requests the court or any arbitrator to whom disputes relating to
this Agreement are submitted to reform the otherwise unenforceable covenant in
accordance with the preceding provision.
[The remainder of this page is left intentionally blank.]
G-5
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
MEDSOLUTIONS, INC.
By: __________________________________
Xxxxxxx X. Xxxxxxx, President/CEO
SELLER REPRESENTATIVE
By: ___________________________________
[Printed name]
G-6
EXHIBIT H
---------
FORM OF CONSULTING AGREEMENT
CONSULTING AGREEMENT
This Agreement (this "Agreement") is made and entered effective as of
November __, 2003 (the "Effective Date"), by and between MedSolutions, Inc., a
Texas corporation (the "Company"), and _________________, an individual and
resident of the State of Texas (the "Consultant").
RECITALS:
A. The Company is purchasing certain assets (the "Assets") of AmeriTech
Environmental, Inc. (the "Seller"), as set forth in the Asset Purchase Agreement
(the "Purchase Agreement") entered into by and between the Employer and the
Seller, dated as of November __, 2003.
B. The Consultant has served as an employee, officer, and/or director of the
Seller.
C. The Consultant has certain skills, experience, and abilities that are
valuable to the successful transition of the Assets from Seller to the Company
and to the success of the Company's operations and future profitability;
D. The Company desires to temporarily retain the Consultant to render certain
specific consulting and advisory services for the Company on the terms and
conditions set forth in this Agreement, and the Consultant desires to be
retained by the Company on such terms and conditions;
E. The Company and the Consultant desire to set forth the terms and conditions
pursuant to which the Consultant will render consulting and advisory services to
the Company; and
F. In consideration of the foregoing premises and of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties to
this Agreement hereby agree as follows:
ARTICLE I
---------
PERFORMANCE OF THE SERVICES
1.01 Engagement and Duties. The Company and the Consultant hereby agree
that during the Term (defined below), the Consultant shall provide such
consulting services as are assigned or delegated to the Consultant by the
President of the Company (the "Services") to assist in the orderly transition of
the Assets from the Seller to the Company as contemplated by the Purchase
Agreement. During the Term (as defined below), the Consultant shall devote such
business time, attention, skill and energy to the business of the Company as the
President of the Company shall request in his reasonable discretion, and shall
assume and perform to the best of his ability the Services. The Consultant shall
report to the President of the Company during the Term.
1.02 Term and Termination. This Agreement shall continue and be in
effect from the Effective Date for a term of 75 days (the "Term").
H-1
1.03 Remuneration. In consideration for performance of the Services,
the Consultant shall be paid a fee of $50 per hour during the Term, payable on
the 15th and the last day of each calendar month during the Term. The Company
shall provide the Consultant with no additional compensation, benefits or
insurance.
1.04 Independent Contractor Status.
(a) Consultant may use any ethical and lawful means necessary and
appropriate to perform his obligations under this Agreement; provided, however,
that in no event shall Consultant take any action that would be adverse to the
business interests of the Company or that may subject Consultant or the Company
to civil or criminal liability. Consultant agrees to comply in full with all
applicable laws, rules and regulations and Consultant covenants and agrees that
he has no undisclosed interest that would conflict in any manner with the
performance of services under this Agreement. In recognition of the independent
contractor status of Consultant, the Company agrees that, subject to the
covenants contained in this Agreement and that certain Confidentiality and
Non-Competition Agreement entered into by and between the Company and the
Consultant as of the date hereof, Consultant may engage in additional activities
and may allocate his time between Consultant's obligations under this Agreement
and such other activities in any manner Consultant deems appropriate, so long as
Consultant's obligations under this Agreement are fully satisfied. Consultant
shall be responsible for all expenses incurred by the Consultant in furtherance
of his provision of the Services, except for expenses that are pre-approved in
writing by the Company. Consultant will have the sole right to supervise,
manage, control, and direct the performance of the details incident to
Consultant's duties described in this Agreement.
(b) Consultant is and shall be an independent contractor with the sole
right to supervise, manage, operate, control, and direct the performance of the
details incident to Consultant's duties under this Agreement. Nothing contained
in this Agreement shall be deemed or construed to create a partnership or joint
venture, to create the relationships of an employer-employee or principal-agent,
or to otherwise create any liability for or obligation of the Company whatsoever
with respect to the indebtedness, liabilities, and obligations of Consultant or
any other party. Consultant specifically understands and agrees that this
Agreement shall not be deemed to grant or imply that Consultant is authorized to
sign, contract, deal, or otherwise act in the name of or on behalf of the
Company, except as is expressly authorized in writing by the Company. The
Company shall not be obligated to maintain any insurance for Consultant,
including, but not limited to, medical, dental, life, or disability insurance.
Consultant stipulates and agrees that he will not be eligible for any employment
benefits from the Company. To the extent Consultant employs others in providing
services under this Agreement, Consultant agrees to comply with all applicable
workers' compensation laws, to provide satisfactory assurances of such
compliance to the Company on request, and to indemnify and hold harmless the
Company from any liability or obligation in connection therewith. CONSULTANT
SHALL NOT BE CONSIDERED UNDER THE PROVISIONS OF THIS AGREEMENT OR OTHERWISE AS
HAVING THE STATUS OF AN EMPLOYEE OF THE COMPANY, OR AS BEING ENTITLED TO
PARTICIPATE IN ANY LIFE, ACCIDENT OR HEALTH INSURANCE PLANS, PENSION, STOCK,
BONUS, THRIFT OR PROFIT SHARING PLANS, WORKER'S COMPENSATION BENEFITS,
VACATION/SICK LEAVE BENEFITS, OR ANY SIMILAR BENEFITS WHICH MAY BE PROVIDED BY
THE COMPANY FOR ITS EMPLOYEES, AND CONSULTANT HEREBY EXPRESSLY WAIVES ANY SUCH
ENTITLEMENT, IF SUCH ENTITLEMENT EXISTS OR IS DEEMED TO EXIST.
H-2
1.05 Taxes and Withholding. The Consultant hereby acknowledges and
agrees that, as an independent contractor, he is legally required to determine
and pay his own estimated federal income taxes, FICA (including FICA-matching),
and all applicable federal and state payroll, excise, xxxxxxx'x compensation,
and other withholdings owed, or claimed to be owed, by Consultant by reason or
arising out of Consultant's relationship with the Company pursuant to this
Agreement, and Consultant shall indemnify and hold the Company harmless from and
against, and shall defend the Company against, any and all losses, damages,
claims, costs, penalties, liabilities, and expenses arising out of or incurred
because of, incident to, or otherwise with respect to any such taxes. The
Consultant further acknowledges that the Company is legally obligated, and shall
endeavor to issue timely, a yearly Form 1099 to the Consultant, and a Form 1096
to the Internal Revenue Service, reporting the full amount of fees paid to the
Consultant during the reporting period.
1.06 Confidentiality, Non-Competition and Non-Solicitation. Other than
such actions as are required in discharging his obligations under this Agreement
in the ordinary course of business, the Consultant and his affiliates hereby
agree to abide by the terms and conditions of the Confidentiality and
Non-Competition Agreement entered into by between the Company and the Consultant
as of the date hereof which is ancillary to this Agreement.
ARTICLE II
----------
MISCELLANEOUS
2.01 Further Assurances Each party hereto, without further
consideration, shall, at the reasonable request of any other party hereto after
the consummation of the transactions contemplated by this Agreement, execute and
deliver any instruments of conveyance, assignment, transfer, assumption, or
other instrument or document and take such other actions, as such other party
may reasonably request to more effectively consummate the transactions
contemplated by this Agreement.
2.02 Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under any present or future law, and if the
rights or obligations of either of the parties hereto would not be materially
and adversely affected thereby, (a) such provisions shall be fully severable;
(b) this Agreement shall be construed and enforced as if such illegal, invalid,
or unenforceable provisions had never comprised a part hereof; (c) the remaining
provisions of this Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid, or unenforceable provision or by its
severance; (d) in lieu of such illegal, invalid, or unenforceable provision,
there shall be added automatically as a part of this Agreement a legal, valid,
and enforceable provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible.
H-3
2.03 Assignment. This Agreement shall be assigned and transferred to,
and shall be binding upon and shall inure to the benefit of, any successor of
the Company, and any such successor shall be deemed substituted as the "Company"
hereunder for all purposes. As used in this Agreement, the term "successor"
shall mean any person, firm, corporation, or business entity that at any time,
whether by merger, spin off, purchase, or otherwise, acquires all or
substantially all of the assets or business of the Company. Notwithstanding
anything contained herein to the contrary, the Parties acknowledge that this
Agreement is based on the particular abilities of Consultant and may not be
assigned, in whole or in part, by Consultant.
2.04 Number and Gender of Words. Any references herein to the masculine
gender, or to the masculine form of any noun, adjective, or possessive, shall be
construed to include the feminine or neuter gender and form, and vice versa.
Additionally, whenever used herein, the singular number shall include the
plural, and the plural number shall include the singular.
2.05 Headings. The headings contained in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
of any of the provisions contained herein.
2.06 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF TEXAS WITHOUT GIVING EFFECT TO THE CHOICE OR CONFLICT OF LAWS RULES
THEREOF OR OF ANY STATE.
2.07 Legal Remedies; Specific Performance. The parties to this
Agreement understand and agree that it will be impossible to measure in money
the damages that may accrue to a party to this Agreement or to its heirs,
personal representatives, or assigns by reason of a failure to perform any of
the obligations set forth in this Agreement, and that any such money damages
would be an insufficient remedy for such failure of performance. Therefore, each
party hereto hereby consents to be subject to the remedy of specific performance
of any provision of this Agreement if such party shall have been found to be in
violation of such provision by any court of competent jurisdiction. If any party
or its heirs, personal representatives, or assigns institute any action or
proceeding to specifically enforce the provisions of this Agreement, any person
against whom such action or proceeding is brought hereby waives the claim or
defense in such action or proceeding that such party has an adequate remedy at
law, and such person shall not urge in any such action or proceeding a claim or
defense that such remedy at law exists.
2.08 Court Costs and Attorneys' Fees. If any action at law or in
equity, including an action for declaratory relief or an action brought under
Section 2.06 hereof, is brought to enforce or interpret the provisions of this
Agreement, the prevailing party shall be entitled to recover costs of court and
reasonable attorneys' fees from the other party or parties to such action, which
fees may be set by the court in the trial of such action or may be enforced in a
separate action brought for that purpose, and which fees shall be in addition to
any other relief that may be awarded.
2.09 Inurement. Subject to the restrictions against transfer or
assignment as herein contained, the provisions of this Agreement shall inure to
the benefit of, and shall be binding on, the assigns, successors in interest,
personal representatives, estates, heirs, and legatees of each of the parties
hereto.
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2.10 Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be sent by first class U.S.
mail or facsimile transmission, or delivered by hand or by overnight or similar
delivery service, fees prepaid, to the party to whom it is to be given at the
address of such party set forth below or to such other address for notice as
such party shall provide in accordance with the terms of this section. Except as
otherwise specifically provided in this Agreement, notice so given shall, in the
case of notice given by certified mail (or by such comparable method) be deemed
to be given and received three business days after the time of certification
thereof (or comparable act), in the case of notice so given by overnight
delivery service, on the date of actual delivery, and, in the case of notice so
given by facsimile transmission or personal delivery, on the date of actual
transmission or, as the case may be, personal delivery.
If to the Company: MedSolutions, Inc.
Attn: President
00000 Xxxxx Xxxxx
Xxxx Xxxxxxx XXX, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
If to the Consultant: ___________________________
___________________________
___________________________
___________________________
Facsimile: (___) _______-__________
2.11 Waivers. No waiver of any provision or condition of this Agreement
shall be valid unless executed in writing and signed by the party to be bound
thereby, and then only to the extent specified in such waiver. No waiver of any
provision or condition of this Agreement shall be construed as a waiver of any
other provision or condition of this Agreement, and no present waiver of any
provision or condition of this Agreement shall be construed as a future waiver
of such provision or condition.
2.12 Amendment. This Agreement may be amended only by the unanimous
written consent of the parties hereto.
2.13 Entire Agreement. This Agreement contains the entire understanding
between the parties hereto concerning the subject matter contained herein. There
are no representations, agreements, arrangements, or understandings, oral or
written, between or among the parties hereto relating to the subject matter of
this Agreement that are not fully expressed herein.
2.14 Construction of Agreement. Each party and its counsel have
participated fully in the review and revision of this Agreement. Any rule of
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construction to the effect that ambiguities are to be resolved against the
drafting party shall not apply in the interpretation of this Agreement.
2.15 Execution. Each party to this Agreement hereby represents and
warrants to the other parties hereto that such party has full power and capacity
to execute, deliver, and perform this Agreement, which has been duly executed
and delivered by, and which evidences the valid and binding obligation of, such
party enforceable in accordance with its terms subject to applicable
liquidation, conservatorship, bankruptcy, insolvency, reorganization, or similar
laws affecting the enforcement of creditor's right's from time to time in effect
and to general principles of equity.
2.16 Multiple Counterparts. This Agreement may be executed in multiple
counterparts, including by facsimile signature, each of which shall be deemed to
be an original, but all of which together shall constitute one and the same
instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties to this Agreement have set their
respective hands as of the Effective Date.
THE COMPANY:
MEDSOLUTIONS, INC.
By:_____________________________________
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
THE CONSULTANT:
________________________________________
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EXHIBIT I
---------
RIGHT OF FIRST REFUSAL AGREEMENT
RIGHT OF FIRST REFUSAL AGREEMENT
This Right of First Refusal Agreement (the "Agreement"), executed to be
effective as of November __, 2003 (the "Effective Date"), is made and entered
into by and among MedSolutions, Inc., a Texas corporation, for itself and on the
behalf of its subsidiaries (collectively, "MedSolutions"), AmeriTech
Environmental, Inc., a Texas corporation ("AmeriTech"), and AmeriTech Resource
Recovery, Inc., a Texas corporation and wholly-owned subsidiary of AmeriTech
("ARRI").
WITNESSETH:
WHEREAS, MedSolutions and AmeriTech have executed an agreement for the
purchase and assumptions of certain assets and liabilities of AmeriTech as of
the date hereof (the "Asset Purchase Agreement"); and
WHEREAS, pursuant to the terms and provisions of the Asset Purchase
Agreement, AmeriTech is obligated to deliver this Agreement in order to grant
MedSolutions certain rights of first refusal to acquire all or substantially all
of the capital stock or assets of ARRI;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual undertakings and covenants set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties to this Agreement hereby agree as follows:
ARTICLE I
---------
1.01 Right of First Refusal. Each of AmeriTech and ARRI (each, a
"Selling Party") hereby grant MedSolutions an exclusive and irrevocable right,
for a period of 24 months after the Effective Date, in the event that a Selling
Party receives or negotiates a bona fide, noncollusive offer (the "Offer") with
or from any independent third party (the "Other Party") to acquire all or
substantially all of the capital stock or assets of ARRI, or any affiliated
successor to the assets thereof, whether through a merger, consolidation,
purchase, or other transaction (the "Other Transaction"), and such Selling Party
accepts or desires to accept such Offer, MedSolutions shall have an exclusive
and irrevocable right and Option (the "Option") to acquire such stock or assets
at the purchase price and on the terms offered by the Other Party (the
"Transaction"). In the event of an Offer, the Selling Party shall provide
written notice of the terms of such Offer (the "Offer Notice") to MedSolutions
within three days of its receipt of such Offer, providing the name of the Other
Party, the amount and/or nature of the capital stock or assets which the Offer
is for, the Offer price, proof the Offer was made, any other material terms of
the Offer and the structure of the Other Transaction. MedSolutions shall have 30
days (the "Exercise Period") from the date of its receipt of the Offer Notice
from the Selling Party (the "Offer Notice Date") to exercise its Option by
providing written notice of its exercise of such Option to the Selling Party
(the "Exercise Notice"). Any failure by MedSolutions to provide an Exercise
Notice to the Selling Party during the Exercise Period shall constitute a
rejection of the Option and the Selling Party shall be entitled to consummate
the Other Transaction with the Other Party. In the event of MedSolutions' timely
delivery to the Selling Party of an Exercise Notice, the Selling Party and
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MedSolutions shall have 60 days from the date of delivery of the Exercise Notice
to the Selling Party to negotiate and execute a definitive agreement on
substantially the same terms and conditions as set forth in the Offer Notice for
the acquisition of the capital stock or assets related to the Offer and to
consummate such acquisition. In the event that MedSolutions delivers the
Exercise Notice within the Exercise Period, but the parties fail to consummate
the Transaction within such 60-day period due to the sole fault of MedSolutions,
MedSolutions hereby agrees to pay to the Selling Party, as liquidated damages,
that amount equal 10% of the purchase price pursuant to the Offer (the
"Liquidated Damages"). Any liquidated damages payable under this Section 1.01
shall be paid by wire transfer of immediately available funds to an account
designated in writing by the Selling Party. Upon completion of such 60-day
negotiation period, the Selling Party shall be entitled to enter into the Other
Transaction with the Other Party if MedSolutions is obligated to pay the
Liquidated Damages to the Selling Party.
ARTICLE II
----------
MISCELLANEOUS
2.01 Headings. The headings of sections contained in this Agreement are
for convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
2.02 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties hereto shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically breaches of this Agreement and to enforce specifically the
terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity.
2.03 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS RULES OR CHOICE OF LAWS RULES THEREOF OR OF ANY STATE.
2.04 Court Costs and Attorneys' Fees. If any action at law or in
equity, including an action for declaratory relief, is brought to enforce or
interpret the provisions of this Agreement, the prevailing party shall be
entitled to recover costs of court and reasonable attorneys' fees from the other
party or parties to such action, which fees may be set by the court in the trial
of such action or may be enforced in a separate action brought for that purpose,
and which fees shall be in addition to any other relief that may be awarded.
2.05 Assignability and Binding Effect. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors, heirs, and permitted assigns. This Agreement and the rights and
obligations hereunder shall not be assignable without the express written
consent of all parties hereto.
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2.06 Amendments. This Agreement may not be modified, amended, or
supplemented except by an agreement in writing signed by all of the parties
hereto.
2.07 Third Parties. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any person other than the parties
hereto and their successors, heirs or permitted assigns, any rights or remedies
under or by reason of this Agreement.
2.08 Number and Gender of Words. When the context so requires in this
Agreement, words of gender shall include either or both genders and the singular
number shall include the plural.
2.09 Entire Agreement. This Agreement shall constitute the entire
agreement between the parties hereto with respect to the transactions
contemplated hereby and shall supersede all prior or contemporaneous
negotiations, understandings and agreements. There are no representations,
agreements, arrangements, or understandings, oral or written, between or among
the parties hereto relating to the subject matter of this Agreement that are not
fully expressed herein.
2.10 Multiple Counterparts. This Agreement may be executed in multiple
counterparts, including by facsimile signature, each of which shall be deemed to
be an original but all of which together shall constitute one and the same
instrument.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
AMERITECH ENVIRONMENTAL, INC.
By: ______________________________________
Name: Xxxxxxxx X. Xxxxxx
Title:President and Chief Executive Officer
AMERITECH RESOURCE RECOVERY, INC.
By: ______________________________________
Name: ______________________________________
Title:______________________________________
MEDSOLUTIONS, INC.
By: _____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
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DISCLOSURE SCHEDULES
--------------------
Schedule 1.01(c) 90-Day and 180-Day Customers
----------------
Schedule 1.02 Allocation of Purchase Price
-------------
Schedule 1.03 Assets
-------------
Schedule 1.04 Disclosed Encumbrances
-------------
Schedule 1.05 Assumed Liabilities
-------------
Schedule 2.01(a)(iii) Material Contracts
---------------------
Schedule 3.01 Seller Organizational and Good Standing Documents
-------------
Schedule 3.08 Seller Financial Statements
-------------
Schedule 3.09 Taxes
-------------
Schedule 3.10 Litigation
-------------
Schedule 3.11 Consents
-------------
Schedule 3.13 Description of Real Property
-------------
Schedule 3.15(b) Employee Benefit Plans
----------------
Schedule 3.16 Contracts
-------------
Schedule 4.01 Buyer Good Standing Documents
-------------
Schedule 4.08 Capitalization
-------------
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