ASSET PURCHASE AGREEMENT
BETWEEN
HILL INTERNATIONAL, INC.
AND
ATC ENVIRONMENTAL INC.
___________________________
DATED AS OF OCTOBER 31, 1995
___________________________
TABLE OF CONTENTS
PAGE:
ARTICLE I PURCHASED ASSETS AND ASSUMED LIABILITIES. . . . . . . . . . . . . . 1
1.1. PURCHASED ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2. ASSUMED LIABILITIES. . . . . . . . . . . . . . . . . . . . . . . . 2
1.3. ACCOUNTS RECEIVABLE NOT INCLUDED . . . . . . . . . . . . . . . . . 2
ARTICLE II PURCHASE PRICE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1. PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III THE CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.1. CLOSING DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2. PROCEEDINGS AT CLOSING . . . . . . . . . . . . . . . . . . . . . . 2
3.3. DELIVERIES BY THE SELLER TO THE PURCHASER. . . . . . . . . . . . . 3
3.4. DELIVERIES BY THE PURCHASER TO THE SELLER. . . . . . . . . . . . . 3
3.5. PRORATIONS AS OF THE CLOSING . . . . . . . . . . . . . . . . . . . 4
3.6. REIMBURSEMENTS AS OF THE CLOSING . . . . . . . . . . . . . . . . . 4
ARTICLE IV REPRESENTATIONS AND WARRANTIES
OF THE SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1. ORGANIZATION AND GOOD STANDING . . . . . . . . . . . . . . . . . . 4
4.2. AUTHORIZATION OF AGREEMENT . . . . . . . . . . . . . . . . . . . . 5
4.3. NO CONFLICTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.4. TITLE TO PURCHASED ASSETS. . . . . . . . . . . . . . . . . . . . . 5
4.5. NO CONSENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.6. ACCURACY OF INFORMATION. . . . . . . . . . . . . . . . . . . . . . 5
4.7. NO BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.8. NO CONTRACT BREACHES . . . . . . . . . . . . . . . . . . . . . . . 6
4.9. ACCOUNTS RECEIVABLE. . . . . . . . . . . . . . . . . . . . . . . . 6
4.10. WIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.11. NO LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.12. RECOVERABILITY OF REIMBURSEMENTS . . . . . . . . . . . . . . . . . 6
4.13. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.14. WORK OF THE SELLER HAVING A SIGNIFICANT ENVIRONMENTAL COMPONENT . 6
ARTICLE V REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER. . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.1. ORGANIZATION AND GOOD STANDING . . . . . . . . . . . . . . . . . . 6
5.2. AUTHORIZATION OF AGREEMENT . . . . . . . . . . . . . . . . . . . . 6
5.3. NO CONFLICTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.4. NO CONSENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(i)
5.5. NO LITIGATION. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.6. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.7. NO BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE VI COVENANTS OF THE SELLER . . . . . . . . . . . . . . . . . . . . . . 8
6.1. NO COMPETITION . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.2. SLH AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.3. PAYMENT OF ARREARAGES. . . . . . . . . . . . . . . . . . . . . . . 9
6.4. COLLECTION OF PURCHASER'S ACCOUNTS RECEIVABLE. . . . . . . . . . . 9
6.5. REIMBURSEMENT OF EXPENSES. . . . . . . . . . . . . . . . . . . . . 9
6.6. MAINTENANCE OF INSURANCE . . . . . . . . . . . . . . . . . . . . . 9
6.7. NON-ASSIGNABLE CONTRACTS . . . . . . . . . . . . . . . . . . . . . 9
6.8. BOOKS AND RECORDS. . . . . . . . . . . . . . . . . . . . . . . . .10
6.9. BEST EFFORTS; FURTHER ASSURANCES . . . . . . . . . . . . . . . . .10
ARTICLE VII COVENANTS OF THE PURCHASER. . . . . . . . . . . . . . . . . . . .10
7.1. COLLECTION OF THE SELLER'S ACCOUNTS RECEIVABLE . . . . . . . . . .11
7.2. COLLECTION OF THE WIP. . . . . . . . . . . . . . . . . . . . . . .11
7.3. REIMBURSEMENT OF EXPENSES. . . . . . . . . . . . . . . . . . . . .11
7.4. MAINTENANCE OF INSURANCE . . . . . . . . . . . . . . . . . . . . .11
7.5. NON-ASSIGNABLE LEASES. . . . . . . . . . . . . . . . . . . . . . .12
7.6. BOOKS AND RECORDS. . . . . . . . . . . . . . . . . . . . . . . . .12
7.7. BEST EFFORTS; FURTHER ASSURANCES . . . . . . . . . . . . . . . . .12
7.8. PUBLIC ANNOUNCEMENT. . . . . . . . . . . . . . . . . . . . . . . .13
ARTICLE VIII COVENANTS RELATING TO EMPLOYEE MATTERS. . . . . . . . . . . . . .13
8.1. OFFER OF EMPLOYMENT. . . . . . . . . . . . . . . . . . . . . . . .13
8.2. TERMINATION OBLIGATIONS. . . . . . . . . . . . . . . . . . . . . .13
8.3. OTHER OBLIGATIONS. . . . . . . . . . . . . . . . . . . . . . . . .13
8.4. CREDITED SERVICE . . . . . . . . . . . . . . . . . . . . . . . . .13
8.5. EMPLOYEE OPTIONS . . . . . . . . . . . . . . . . . . . . . . . . .13
8.6. NO SOLICITATION. . . . . . . . . . . . . . . . . . . . . . . . . .14
ARTICLE IX INDEMNIFICATION AND RELATED MATTERS . . . . . . . . . . . . . . . .14
9.1. INDEMNIFICATION BY THE SELLER. . . . . . . . . . . . . . . . . . .14
9.2. INDEMNIFICATION BY THE PURCHASER . . . . . . . . . . . . . . . . .14
9.3. DETERMINATION OF DAMAGES AND RELATED MATTERS . . . . . . . . . . .15
9.4. LIMITED SURVIVAL OF REPRESENTATIONS AND WARRANTIES . . . . . . . .16
9.5. NOTICE OF INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . .16
9.6. INDEMNIFICATION PROCEDURE FOR THIRD-PARTY CLAIMS . . . . . . . . .16
ARTICLE X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . .16
10.1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . .16
10.2. ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . .18
(ii)
10.3. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . .19
10.4. DISPUTE RESOLUTION. . . . . . . . . . . . . . . . . . . . . . . .19
10.5. TRANSFER TAXES. . . . . . . . . . . . . . . . . . . . . . . . . .19
10.6. EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
10.7. TABLE OF CONTENTS AND HEADINGS. . . . . . . . . . . . . . . . . .19
10.8. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
10.9. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . .20
10.10. BINDING EFFECT; NO ASSIGNMENT . . . . . . . . . . . . . . . . . .20
10.11. NO THIRD-PARTY BENEFICIARIES. . . . . . . . . . . . . . . . . . .21
10.12. AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . .21
10.13. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . .21
(iii)
SCHEDULES AND EXHIBITS
Schedule 1.1(a) -- Contracts
Schedule 1.1(c) -- Equipment
Schedule 1.1(d) -- WIP
Schedule 1.2(b) -- Leases
Schedule 3.6(a) -- Retainage
Schedule 3.6(b) -- Security Deposits and Prepaid Lease Payments
Schedule 4.14 -- Work of the Seller Having a Significant Environmental
Component
Schedule 8.1 -- Employees to be Offered Employment with the
Purchaser
Exhibit A -- Form of Note
Exhibit B -- Form of Xxxx of Sale
Exhibit C -- Form of IER Agreement
Exhibit D -- Form of DLR Agreement
Exhibit E -- Form of SLH Agreement
Exhibit F -- Form of Secretary's Certificate of the Seller
Exhibit G -- Form of Counsel Opinion of the Seller
Exhibit H -- Form of Secretary's Certificate of the Purchaser
Exhibit I -- Form of Counsel Opinion of the Purchaser
Exhibit J -- Form of Press Release
(iv)
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of October 31,
1995, between Hill International, Inc., a Delaware corporation (the "Seller"),
and ATC Environmental Inc., a Delaware corporation (the "Purchaser").
WHEREAS, the Seller, among other things, is engaged in the businesses
of providing environmental consulting and environmental engineering services
(the "Businesses"); and
WHEREAS, the Purchaser desires to purchase, and the Seller desires to
sell, certain of the assets of the Seller employed exclusively in the Businesses
and, as part of such purchase and sale, the Seller desires to assign, and the
Purchaser desires to assume, certain of the obligations and liabilities of the
Businesses, subject, in each case, to the exceptions, terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements set forth herein, and upon
the terms and subject to the conditions set forth herein, the Purchaser and the
Seller hereby agree as follows:
ARTICLE I
PURCHASED ASSETS AND ASSUMED LIABILITIES
1.1. PURCHASED ASSETS. Upon the terms and subject to the conditions
set forth herein, the Seller shall sell, assign, transfer, convey and deliver to
the Purchaser, and the Purchaser shall purchase, acquire and accept from the
Seller, all of the Seller's right, title and interest in and to the following
(collectively, the "Purchased Assets"):
(a) the contracts of the Businesses listed on Schedule 1.1(a)
hereto (the "Contracts");
(b) all of the Seller's interest in and to the Associated
Engineers joint venture, encompassing the North River Water Pollution
Control Plant project, including all subsequent phases of such project;
(c) all furniture, fixtures, computer hardware and software,
inventory, supplies, telephone numbers and all field and office equipment
owned by the Seller and relating to the continuing operation of the
Businesses listed on Schedule 1.1(c) hereto (collectively, the
"Equipment");
(d) all of the unbilled work-in-process of the Businesses listed
on Schedule 1.1(d) hereto (the "WIP");
(e) copies of all books, records, files, reports, customer
lists, business development proposals and all other documents, data and
information relating to the continuing operation of the Businesses; and
1
(f) the non-exclusive right to contact and solicit for future
business all current and former clients of the Businesses.
1.2. ASSUMED LIABILITIES. Upon the terms and subject to the
conditions set forth herein, the Seller shall assign to the Purchaser, and the
Purchaser shall assume from the Seller, all of the Seller's right, title and
interest in and to the following (collectively, the "Assumed Liabilities"):
(a) all liabilities and obligations of the Seller with respect
to the performance of the Contracts accruing after the Closing Date; and
(b) the real estate leases of the Businesses listed on Schedule
1.2(b) hereto (the "Leases").
All other liabilities and obligations of the Businesses and of the Seller other
than the Assumed Liabilities shall be retained by the Seller. All costs and
expenses shall be deemed to have "accrued" on the date services are performed,
goods are delivered or liabilities are incurred.
1.3. ACCOUNTS RECEIVABLE NOT INCLUDED. The Contracts that are
purchased by the Purchaser pursuant to Section 1.1(a) hereof shall not include
any billed accounts receivable of the Seller.
ARTICLE II
PURCHASE PRICE
2.1. PURCHASE PRICE. On the Closing Date, the Purchaser shall pay to
the Seller the following as the purchase price hereunder (collectively, the
"Purchase Price"):
(a) $2,443,850.58 by wire transfer of immediately available
funds;
(b) a promissory note in the amount of $300,000.00 made by the
Purchaser in favor of the Seller substantially in the form of Exhibit A
hereto (the "Note"); and
(c) an irrevocable letter of credit in favor of the Seller in
the amount of $730,625.00 payable in full on May 1, 1996.
ARTICLE III
THE CLOSING
3.1. CLOSING DATE. The Closing shall take place at the Willingboro,
New Jersey offices of the Seller and shall be deemed effective as of 12:00
midnight on October 31, 1995 (the "Closing Date").
3.2. PROCEEDINGS AT CLOSING. All proceedings to be taken and all
documents to be executed and delivered by the Seller in connection with the
consummation of the transactions contemplated hereby shall be reasonably
satisfactory in form and substance to the Purchaser and
2
its counsel. All proceedings to be taken and all documents to be executed and
delivered by the Purchaser in connection with the consummation of the
transactions contemplated hereby shall be reasonably satisfactory in form and
substance to the Seller and its counsel. All proceedings to be taken and all
documents to be executed and delivered by all parties at the Closing shall be
deemed to have been taken, executed and delivered simultaneously, and no
proceedings shall be deemed taken nor any documents executed or delivered until
all have been taken, executed and delivered.
3.3. DELIVERIES BY THE SELLER TO THE PURCHASER. At the Closing, the
Seller shall deliver or cause to be delivered to the Purchaser the following:
(a) a counterpart of this Agreement executed by the Seller;
(b) an executed xxxx of sale, dated the Closing Date,
substantially in the form of Exhibit B hereto;
(c) certificates of insurance representing the insurance
discussed in Section 4.13 hereof;
(d) the non-competition agreement of Xxxxx X. Xxxxxxx (the "IER
Agreement"), dated the Closing Date, substantially in the form of Exhibit C
hereto;
(e) the non-competition agreement of Xxxxx X. Xxxxxxx (the "DLR
Agreement"), dated the Closing Date, substantially in the form of Exhibit D
hereto;
(f) the amendment to the employment agreement of Xxxxx X. Xxxxx
(as so amended, the "SLH Agreement"), dated the Closing Date, substantially
in the form of Exhibit E hereto;
(g) the secretary's certificate of the Seller, dated the Closing
Date, substantially in the form of Exhibit F hereto;
(h) a certificate of the Secretary of State of the State of
Delaware, dated the Closing Date, with respect to the good standing of the
Seller; and
(i) the opinion of the Seller's counsel, dated the Closing Date,
substantially in the form of Exhibit G hereto.
3.4. DELIVERIES BY THE PURCHASER TO THE SELLER. At the Closing, the
Purchaser shall deliver to the Seller the following:
(a) a counterpart of this Agreement executed by the Purchaser;
(b) the Purchase Price;
(c) $74,098.92 by wire transfer of immediately available funds
which represents the amount to be reimbursed to the Seller pursuant to
Section 3.6 hereof less the amount to be reimbursed to the Purchaser
pursuant to Section 6.5 hereof;
3
(d) options to purchase 25,000 shares of the common stock of the
Purchaser at the closing market price on November 9, 1995 issued to Xxxxx
X. Xxxxxxx which represent the consideration for the IER Agreement;
(e) options to purchase 25,000 shares of the common stock of the
Purchaser at the closing market price on November 9, 1995 issued to Xxxxx
X. Xxxxxxx which represent the consideration for the DLR Agreement;
(f) certificates of insurance representing the insurance
discussed in Section 5.6 hereof;
(g) the secretary's certificate of the Purchaser, dated the
Closing Date, substantially in the form of Exhibit H hereto;
(h) a certificate of the Secretary of State of the State of
Delaware, dated the Closing Date, with respect to the good standing of the
Purchaser; and
(i) the opinion of the Purchaser's counsel, dated the Closing
Date, substantially in the form of Exhibit I hereto.
3.5. PRORATIONS AS OF THE CLOSING. The Seller and the Purchaser
hereby agree that all reasonable operating expenses incurred in the ordinary
course of the Businesses shall be prorated between the parties as of the Closing
Date, and after such date shall become the obligation and responsibility of the
Purchaser.
3.6. REIMBURSEMENTS AS OF THE CLOSING. The Purchaser, on and as of
the Closing Date, shall pay to the Seller such amounts as may be required to
replace:
(a) all the amounts which have been retained by continuing
clients of the Businesses with respect to the Contracts listed on Schedule
3.6(a) hereto; and
(b) all security deposits and prepaid lease payments held by
third parties with respect to the Assumed Liabilities listed on Schedule
3.6(b) hereto.
The Purchaser shall have the right to receive all retainages and security
deposits when released by such continuing client or third party, as the case may
be.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchaser as follows:
4.1. ORGANIZATION AND GOOD STANDING. The Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to carry
on its business as it is now being conducted, and to execute, deliver and
perform this Agreement and to consummate the transactions contemplated hereby.
4
4.2. AUTHORIZATION OF AGREEMENT. The Seller has full corporate power
and authority to execute and deliver this Agreement and each other agreement,
document, instrument or certificate contemplated by this Agreement or to be
executed by the Seller in connection with the consummation of the transactions
contemplated by this Agreement (all such other agreements, documents,
instruments and certificates required to be executed by the Seller being
hereinafter referred to, collectively, as the "Seller Documents"), and to
perform fully its obligations hereunder and thereunder. The execution, delivery
and performance by the Seller of this Agreement and each of the Seller Documents
has been duly authorized by all necessary corporate action on the part of the
Seller. This Agreement has been, and each of the Seller Documents will be, duly
executed and delivered by the Seller, and (assuming the due authorization,
execution and delivery by the other parties hereto and thereto) this Agreement
constitutes, and the Seller Documents when so executed and delivered will
constitute, legal, valid and binding obligations of the Seller, enforceable
against the Seller in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
4.3. NO CONFLICTS. None of the execution and delivery by the Seller
of this Agreement and the Seller Documents, or the consummation of the
transactions contemplated hereby or thereby, or compliance by the Seller with
any of the provisions hereof or thereof will: (i) conflict with, or result in
the breach of, any provision of the certificate of incorporation or by-laws of
the Seller, (ii) conflict with, violate, result in the breach or termination of,
or constitute a default under any material contract or agreement or Order to
which the Seller is a party or by which it is bound or subject, or (iii)
constitute a violation of any Law applicable to the Seller, except, in each
case, for violations, conflicts, breaches or defaults which in the aggregate
would not materially hinder or impair the transactions contemplated hereby or
have a Material Adverse Effect.
4.4. TITLE TO PURCHASED ASSETS. The Seller owns and has, and after
the Closing Date the Purchaser will own and will have, good and valid title to
all of the Purchased Assets, free and clear of all Liens.
4.5. NO CONSENTS. No consent, waiver, approval, Order, Permit or
authorization of, or declaration or filing with, or notification to, any Person
or Governmental Body is required on the part of the Seller in connection with
the execution and delivery by the Seller of this Agreement or the Seller
Documents, or the compliance by the Seller with any of the provisions hereof or
thereof.
4.6. ACCURACY OF INFORMATION. To the Seller's Knowledge, all
information provided by the Seller to the Purchaser in connection with the
Purchaser's due diligence review of the Businesses is true and correct in all
material respects.
4.7. NO BROKERS. No person has acted directly or indirectly as a
broker, finder or financial advisor for the Seller in connection with the
negotiations relating to or the transactions contemplated by this Agreement and
no Person is entitled to any fee, commission or similar payment in respect
thereof based in any way on any agreement, arrangement or understanding made by
or on behalf of the Seller.
5
4.8. NO CONTRACT BREACHES. The Seller is not in material breach of
any Contract and, to the Seller's Knowledge, no client has threatened to cancel
or materially reduce in amount any Contract.
4.9. ACCOUNTS RECEIVABLE. All accounts receivable of the Seller have
been fully earned as of the Closing Date and none of Seller's accounts
receivable with respect to the Contracts are the result of advance billing or
overbilling.
4.10 WIP. The list of WIP listed on Schedule 1.1(d) hereto is true
and correct in all material respects and, to the Seller's Knowledge, all of the
WIP has been fully earned by the Seller as of the Closing Date and all of the
WIP will be collectible using reasonable and customary collection procedures.
4.11. NO LITIGATION. There is no Legal Proceeding pending or, to the
Seller's Knowledge, threatened against the Seller with respect to the Purchased
Assets or any of the Hired Employees. There is no Legal Proceeding pending or,
to the Seller's Knowledge, threatened that seeks to enjoin or obtain damages in
respect of the consummation of the transactions contemplated by this Agreement
or that questions the validity of this Agreement, the Seller Documents or any
action taken or to be taken by the Seller in connection with the consummation of
the transactions contemplated hereby or thereby.
4.12. RECOVERABILITY OF REIMBURSEMENTS. All of the retainages and
security deposits listed on Schedules 3.6(a) and 3.6(b) hereto are fully
recoverable as of the Closing Date.
4.13. INSURANCE. The Seller has obtained insurance coverage which
insures against any of Seller's acts, omissions or liabilities occurring before
the Closing Date with respect to the Contracts and the Purchaser is included as
an additional insured with respect to such insurance.
4.14. WORK OF THE SELLER HAVING A SIGNIFICANT ENVIRONMENTAL
COMPONENT. Except as listed on Schedule 4.14 hereto, the Seller is not
offering, performing or subcontracting any environmental services as part of its
current dispute resolution or project management services as of the Closing Date
which would violate Section 6.1 hereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the Seller as follows:
5.1. ORGANIZATION AND GOOD STANDING. The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, and has all requisite corporate power and authority to carry
on its business as it is now being conducted, and to execute, deliver and
perform this Agreement and to consummate the transactions contemplated hereby.
5.2. AUTHORIZATION OF AGREEMENT. The Purchaser has full corporate
power and authority to execute and deliver this Agreement and each other
agreement, document, instrument or certificate contemplated by this Agreement or
to be executed by the Purchaser in connection
6
with the consummation of the transactions contemplated by this Agreement (all
such other agreements, documents, instruments and certificates required to be
executed by the Purchaser being hereinafter referred to, collectively, as the
"Purchaser Documents") and to perform fully its obligations hereunder and
thereunder. The execution, delivery and performance by the Purchaser of this
Agreement and each Purchaser Document has been duly authorized by all necessary
action on the part of the Purchaser. This Agreement has been, and the Purchaser
Documents will be, duly executed and delivered by the Purchaser and (assuming
the due authorization, execution and delivery by the other parties hereto and
thereto) this Agreement constitutes, and the Purchaser Documents when so
executed and delivered will constitute, legal, valid and binding obligations of
the Purchaser, enforceable against the Purchaser in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding at law or in equity).
5.3. NO CONFLICTS. None of the execution and delivery by the
Purchaser of this Agreement and the Purchaser Documents, or the consummation of
the transactions contemplated hereby or thereby, or compliance by the Purchaser
with any of the provisions hereof or thereof, will: (i) conflict with, or result
in the breach of, any provision of the certificate of incorporation or by-laws
of the Purchaser, (ii) conflict with, violate, result in the breach or
termination of, or constitute a default under any material contract or agreement
or Order to which the Purchaser is a party or by which it is bound or subject,
or (iii) constitute a violation of any Law applicable to the Purchaser, except,
in each case, for violations, conflicts, breaches or defaults which in the
aggregate would not materially hinder or impair the transactions contemplated
hereby.
5.4. NO CONSENTS. No consent, waiver, approval, Order, Permit or
authorization of, or declaration or filing with, or notification to, any Person
or Governmental Body is required on the part of the Purchaser in connection with
the execution and delivery of this Agreement or the Purchaser Documents or the
compliance by the Purchaser with any of the provisions hereof or thereof.
5.5. NO LITIGATION. There is no Legal Proceeding pending or, to the
knowledge of the Purchaser, threatened that seeks to enjoin or obtain damages in
respect of the consummation of the transactions contemplated by this Agreement
or that questions the validity of this Agreement, the Purchaser Documents or any
action taken or to be taken by the Purchaser in connection with the consummation
of the transactions contemplated hereby or thereby.
5.6. INSURANCE. The Purchaser has obtained insurance coverage, with
a retro date of January 1, 1990, which insures against any of Purchaser's acts,
omissions or liabilities occurring after the Closing Date with respect to the
Contracts (the "Required Insurance"). As of the Closing Date: (i) the Required
Insurance is of the same type and provides at least the same limits of coverage
as the insurance that the Purchaser has maintained with respect to its business,
(ii) the Seller is included as an additional insured with respect to the
Required Insurance for coverage up to $5,000,000, and (iii) the Purchaser has
caused the provider or providers of the Required Insurance to agree to provide
at least 30 days prior written notice to the Seller of any cancellation of the
Required Insurance for non-payment of premiums.
5.7. NO BROKERS. No Person has acted directly or indirectly as a
broker, finder or financial advisor for the Purchaser in connection with the
negotiations relating to or the
7
transactions contemplated by this Agreement and no Person is entitled to any fee
or commission or similar payment in respect thereof based in any way on
agreements, arrangements or understandings made by or on behalf of the
Purchaser.
ARTICLE VI
COVENANTS OF THE SELLER
From and after the Closing Date, the Seller hereby covenants and
agrees with the Purchaser that:
6.1. NO COMPETITION. The Seller and its Affiliates shall not, during
the two years immediately after the Closing Date, either directly or indirectly,
offer or perform any of the services offered or performed by the Businesses as
of the Closing Date within 100 miles of the location of any office which the
Businesses maintained as of the Closing Date; PROVIDED, HOWEVER, that the Seller
shall in no way be prohibited from offering or performing any of its current
dispute resolution or project management services (including, without
limitation, the offering, performing or subcontracting of environmental services
when such services are related and incidental to, and necessary for, the
Seller's other services, and either (i) such offered, performed or subcontracted
services comprise less than 10% of the Seller's total project value, or (ii) if
such services comprise 10% or more of the total project value, the Seller has
received the consent of the Purchaser to offer, perform or subcontract such
services; PROVIDED, HOWEVER, that (x) the Purchaser shall notify the Seller of
its consent or lack thereof within 48 hours after notice from the Seller, and
(y) the Purchaser shall not withhold such consent if the Businesses do not have
the required experience, technical skills or financial or human resources to
perform such work). Upon the reasonable request of the Purchaser, the Seller
shall deliver to the Purchaser a certificate of an officer of the Seller
certifying as to the percentage of environmental services with respect to the
total project value on any of the Seller's projects. Nothing contained in this
Section 6.1 shall prohibit the Seller from continuing to perform or subcontract
any environmental services specified, as of the Closing Date, under any contract
of the Seller that it was performing or subcontracting as of the Closing Date.
The Seller shall not, during the two years immediately after the Closing Date,
offer, perform or subcontract any services with respect to the North River Water
Pollution Control Plant project other than its current dispute resolution
services. The Purchaser hereby agrees not to offer or perform any such dispute
resolution services with respect to such project during the two years
immediately after the Closing Date.
6.2. SLH AGREEMENT. The Seller shall enforce, for the benefit of the
Seller and the Purchaser, all provisions of the SLH Agreement. The Seller shall
timely make all payments required to be made under the SLH Agreement; PROVIDED
that the Purchaser shall timely make all payments required to be made to the
Seller pursuant to Section 7.3(ii) hereof. The Seller hereby warrants to the
Purchaser that, during the term of the SLH Agreement, Xxxxx X. Xxxxx shall not,
either directly or indirectly: (i) within 150 miles of any office location of
the Seller or of the Businesses, engage in any aspect of asbestos abatement
management services, lead abatement, property assessments, storage tank
management, industrial health and safety, air quality, environmental
engineering, or any other environmental consulting services (collectively, the
"Services"), (ii) solicit, divert or attempt to divert away from the Purchaser
any business of the Businesses with any customers or clients of the Businesses
nor accept employment or retainer to perform any of the Services from or for the
benefit of any such customers or clients, or (iii)
8
solicit, raid, recruit, offer employment to or otherwise divert or attempt to
divert from employment with the Purchaser any of the Hired Employees.
6.3. PAYMENT OF ARREARAGES. The Seller shall: (i) pay all
arrearages, if any, with respect to the Leases which accrued before the Closing
Date by no later than 30 days after the Closing Date, and (ii) pay all
arrearages, if any, with respect to subcontractors, vendors, suppliers or
service providers of the Businesses which accrued before the Closing Date by no
later than 90 days after the Closing Date; PROVIDED, HOWEVER, that if any such
subcontractors, vendors, suppliers or service providers of the Businesses
withhold or threaten to withhold any goods or services required for the
completion of any project or file or threaten to file a lien against the
property of the client of the Purchaser or such client notifies the Purchaser of
a default, breach or setoff as a result thereof, the Seller shall pay such
arrearages within ten business days of the Seller's receipt of notice from the
Purchaser of such withholding or threatened withholding (except to the extent
that the Seller reasonably believes that no such arrearage is due).
6.4. COLLECTION OF THE PURCHASER'S ACCOUNTS RECEIVABLE. The Seller
shall, in good faith, use its best efforts to cooperate with and assist the
Purchaser in collecting all of the accounts receivable owed to the Purchaser by
the continuing clients of the Businesses; PROVIDED, HOWEVER, that the Seller
shall not be required to perform collection services on behalf of the Purchaser
and the Seller in no way warrants the collectability of the Purchaser's accounts
receivable.
6.5. REIMBURSEMENT OF EXPENSES. The Seller shall reimburse the
Purchaser for $12,786.00 as the cost of obtaining the irrevocable letter of
credit to be delivered to the Seller in accordance with Section 2.1(c) hereof.
6.6. MAINTENANCE OF INSURANCE. The Seller shall maintain, for a
periood of no less than one year after the Closing Date, insurance coverage with
respect to work performed by the Businesses before the Closing Date.
6.7. NON-ASSIGNABLE CONTRACTS.
(a) To the extent any Contract is not capable of being
transferred or assigned to the Purchaser, whether for the failure to obtain any
necessary consent, approval or waiver or if such proposed transfer would
constitute a breach thereof or a violation of any Law, nothing in this Agreement
shall constitute a transfer of such Contract.
(b) With respect to any Contract not transferred or assigned to
the Purchaser (including all Contracts which require the performer thereunder to
have a New York State engineering license), the Seller shall use its best
efforts to: (i) subcontract such Contract to the Purchaser on the same terms and
conditions thereof, (ii) cooperate in any reasonable and lawful arrangement to
provide to the Purchaser all the benefits of such Contract (including, without
limitation, allowing the Purchaser to use the names "Hill International, Inc.",
"Kaselaan & D'Angelo Associates, Inc.", "Hill Environmental, Inc." or "Xxxxxx-
Xxxxx Associates, Ltd." and any commonly used derivatives thereof in order to
effect any invoicing of clients, acceptance of proposals or transfer of
Contracts), or (iii) enforce on behalf of the Purchaser all rights arising
thereunder. The Seller shall have no obligation to permit the Purchaser to use
the benefit of its New York State engineering license after six months after the
Closing Date; PROVIDED, HOWEVER,
9
that this shall not release the Purchaser in any way from its obligations under
Section 1.2(a) hereof.
(c) With respect to all work that was being performed by the
Businesses before the Closing Date on current dispute resolution or project
management contracts of the Seller not being purchased by the Purchaser, the
Purchaser shall continue to perform such work after the Closing Date at a rate
of 140% of the direct salary costs and 100% of the documented out-of-pocket
expenses incurred by the Purchaser with respect to such work. The Seller shall
pay the Purchaser within 30 days of being billed for such work; PROVIDED,
HOWEVER, that: (i) such work shall not continue for more than 60 days after the
Closing Date, and (ii) the total amount of such work shall not exceed $10,000 in
the aggregate. The Purchaser shall perform such work using the same Employees
as performed such work before the Closing Date to the extent possible and until
such work has been reasonably transitioned to other employees of the Purchaser.
6.8. BOOKS AND RECORDS. For a period of five years after the Closing
Date (or such longer period as may be required by any Governmental Body or
ongoing Legal Proceeding):
(a) The Seller shall not dispose of or destroy any of the
business records or files of the Businesses; PROVIDED, HOWEVER, that the
Seller shall have no liability to the Purchaser for any lost, misplaced or
accidentally destroyed records or files. If the Seller wishes to dispose
of or destroy any such records or files after that time, it shall first
give 30 days prior written notice to the Purchaser and the Purchaser shall
have the right, at its option and expense, upon prior written notice to the
Seller within such 30-day period, to take possession of such records or
files within 60 days after the date of the Purchaser's notice to the
Seller.
(b) The Seller shall allow the Purchaser and its employees,
agents and representatives access to all business records and files of the
Businesses which are not transferred to the Purchaser in connection
herewith, during regular business hours and upon reasonable notice at the
Seller's principal place of business or at any location where such records
are stored, and the Purchaser shall have the right, at its own expense, to
make copies of any such records and files; PROVIDED, HOWEVER, that any such
access or copying shall be had or done in such a manner so as not to
interfere with the normal conduct of the Seller's business or operations.
(c) The Seller shall make available to the Purchaser, upon
written request and at the Purchaser's sole cost and expense: (i) the
Seller's personnel to assist the Purchaser in locating and obtaining
records and files (including, without limitation, all accounting and other
financial records of the Businesses) maintained by the Seller, and (ii) any
of the Seller's personnel whose assistance or participation is reasonably
required by the Purchaser in anticipation of, or preparation for, any
existing or future litigation, arbitration, administrative proceeding, tax
return preparation or other matter in which the Purchaser or any of its
subsidiaries or affiliates is involved and which is related to the
Businesses.
6.9. BEST EFFORTS; FURTHER ASSURANCES. The Seller shall use its best
efforts to take any and all such action as the Purchaser may deem reasonably
necessary or appropriate
10
consistent with the terms thereof in order to transfer to the Purchaser the
Purchased Assets and assure to the Purchaser the benefits thereof and to give
effect to the Purchaser's assumption of the Assumed Liabilities. From time to
time after the Closing Date, the Seller shall, at its sole cost and expense,
execute and deliver such other and further instruments of sale, assignment,
assumption, transfer and conveyance as the Purchaser may reasonably request or
the Seller shall deem necessary or appropriate in order to effect the transfer
to the Purchaser of the Purchased Assets and assure to the Purchaser the
benefits thereof and to effect the assumption by the Purchaser of the Assumed
Liabilities. In the event that the Seller shall receive any payment that is
properly payable to the Purchaser, the Seller shall, within 24 hours of
receiving such payment, forward such payment to the Purchaser. The Seller shall
prepare audited financial statements with respect to the Businesses and shall
use its best efforts to deliver such statements to the Purchaser within 60 days
after the Closing Date. The Seller shall use its best efforts to mitigate its
losses and out-of-pocket expenses in connection with the New York Lease. During
the term of the SLH Agreement, the Seller shall not file a voluntary petition
for bankrupcty and shall maintain sufficient liquid assets to make all payments
required to be made by the Seller pursuant to the SLH Agreement.
ARTICLE VII
COVENANTS OF THE PURCHASER
From and after the Closing Date, the Purchaser hereby covenants and
agrees with the Seller that:
7.1. COLLECTION OF THE SELLER'S ACCOUNTS RECEIVABLE. The Purchaser
shall, in good faith, use its best efforts to cooperate with and assist the
Seller in collecting all of the accounts receivable owed to the Seller by the
continuing clients of the Businesses; PROVIDED, HOWEVER, that the Purchaser
shall not be required to perform collection services on behalf of the Seller and
the Purchaser in no way warrants the collectability of the Seller's accounts
receivable.
7.2. COLLECTION OF THE WIP. The Purchaser shall, in good faith, use
its best efforts to collect all of the WIP. The Purchaser hereby warrants to
the Seller that it is not aware of any amounts other than the Seller's recorded
work-in-process and accounts receivable that should be collectible by the Seller
pursuant to any of the Contracts for work performed before the Closing Date.
7.3. REIMBURSEMENT OF EXPENSES. The Purchaser shall reimburse the
Seller for: (i) all of the Seller's actual out-of-pocket expenses (including
accounting fees of $12,000 and direct salary costs of the Seller) incurred in
connection with the preparation and delivery to the Purchaser of audited
financial statements with respect to the Businesses, (ii) all payments to be
made by the Seller pursuant to paragraph 3 of the SLH Agreement up to a maximum
of $62,500.00, (iii) all normal operating costs incurred by the Seller directly
related to the lease between the Seller and Xxxxxxx Realty Company for the
premises located at 000 Xxxx Xxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "New York Lease") for the period from the Closing Date through December 31,
1995, and (iv) all actual losses and out-of-pocket expenses, including brokerage
fees and commissions, incurred by the Seller in connection with the New York
Lease up to a maximum of $150,000 in the aggregate through the term of the New
York Lease.
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7.4. MAINTENANCE OF INSURANCE. The Purchaser shall maintain the
Required Insurance for a period of no less than three years after the Closing
Date. During such period: (i) the Required Insurance shall be of the same type
and shall provide at least the same limits of coverage as the insurance that the
Purchaser maintained immediately after the Closing Date, (ii) the Seller shall
be included as an additional insured with respect to the Required Insurance for
coverage up to $5,000,000, and (iii) the Purchaser shall cause the provider or
providers of the Required Insurance to agree to provide at least 30 days prior
written notice to the Seller of any cancellation of the Required Insurance for
non-payment of premiums.
7.5. NON-ASSIGNABLE LEASES.
(a) To the extent any Lease is not capable of being transferred
or assigned to the Purchaser, whether for the failure to obtain any necessary
consent, approval or waiver or if such proposed transfer would constitute a
breach thereof or a violation of any Law, nothing in this Agreement shall
constitute a transfer of such Lease.
(b) With respect to any Lease not transferred or assigned to the
Purchaser, the Purchaser shall use its best efforts to sublet such Lease from
the Seller on the same terms and conditions thereof.
7.6. BOOKS AND RECORDS. For a period of five years after the Closing
Date (or such longer period as may be required by any Governmental Body or
ongoing Legal Proceeding):
(a) The Purchaser shall not dispose of or destroy any of the
business records or files of the Businesses; PROVIDED, HOWEVER, that the
Purchaser shall have no liability to the Seller for any lost, misplaced or
accidentally destroyed records or files. If the Purchaser wishes to
dispose of or destroy any such records or files after that time, it shall
first give 30 days prior written notice to the Seller and the Seller shall
have the right, at its option and expense, upon prior written notice to the
Purchaser within such 30-day period, to take possession of such records or
files within 60 days after the date of the Seller's notice to the
Purchaser.
(b) The Purchaser shall allow the Seller and its employees,
agents and representatives access to all business records and files of the
Businesses which are transferred to the Purchaser in connection herewith,
during regular business hours and upon reasonable notice at the Purchaser's
principal place of business or at any location where such records are
stored, and the Seller shall have the right, at its own expense, to make
copies of any such records and files; PROVIDED, HOWEVER, that any such
access or copying shall be had or done in such a manner so as not to
interfere with the normal conduct of the Purchaser's business or
operations.
(c) The Purchaser shall make available to the Seller, upon
written request and at the Seller's sole cost and expense: (i) the
Purchaser's personnel to assist the Seller in locating and obtaining
records and files maintained by the Purchaser, and (ii) any of the
Purchaser's personnel previously in the Seller's employ whose assistance or
participation is reasonably required by the Seller in anticipation of, or
preparation for, any existing or future litigation, arbitration,
administrative proceeding, tax return preparation or other matter in which
the Seller or any of its subsidiaries or affiliates is involved and which
is related to the Businesses.
12
7.7. BEST EFFORTS; FURTHER ASSURANCES. The Purchaser shall use its
best efforts to take any and all such action as the Seller may deem reasonably
necessary or appropriate consistent with the terms thereof in order to transfer
to the Purchaser the Purchased Assets and assure to the Purchaser the benefits
thereof and to give effect to the Purchaser's assumption of the Assumed
Liabilities. From time to time after the Closing Date, the Purchaser shall, at
its sole cost and expense, execute and deliver such other and further
instruments of sale, assignment, assumption, transfer and conveyance as the
Seller may reasonably request or the Purchaser shall deem necessary or
appropriate in order to effect the transfer to the Purchaser of the Purchased
Assets and assure to the Purchaser the benefits thereof and to effect the
assumption by the Purchaser of the Assumed Liabilities. In the event that the
Purchaser shall receive any payment that is properly payable to the Seller, the
Purchaser shall, within 24 hours of receiving such payment, forward such payment
to the Seller.
7.8. PUBLIC ANNOUNCEMENT. The Purchaser shall not make any public
announcements immediately after the Closing, except as required by Law, other
than a press release, dated the Closing Date, substantially in the form of
Exhibit J hereto.
ARTICLE VIII
COVENANTS RELATING TO EMPLOYEE MATTERS
8.1. OFFER OF EMPLOYMENT. The Purchaser shall offer employment as of
the Closing Date to each of the Employees listed on Schedule 8.1 hereto in
relatively the same position and location and, in each case, at a rate of pay
approximately equal to such Employee's rate of pay in effect on the business day
immediately preceding the Closing Date. The Purchaser shall employ all of the
Hired Employees. The Purchaser shall be solely responsible for all compensation
and benefits accruing after the Closing Date with respect to the Hired Employees
and any Employees terminated by the Seller after the Closing Date.
8.2. TERMINATION OBLIGATIONS.
(a) On and after the Closing Date, the Seller shall be liable
for all payments that may be required to be made under any termination,
severance or similar plan, policy or arrangement of the Seller with respect to
the termination of the Non-Hired Employees.
(b) After the Closing Date, the Purchaser shall be liable for
all payments that may be required to be made under any termination, severance or
similar plan, policy or arrangement of the Purchaser with respect to the Hired
Employees.
(c) In the event that the Purchaser shall employ any of the Non-
Hired Employees within 45 days after the Closing Date, the Purchaser shall
reimburse the Seller for all payments made by the Seller to such Non-Hired
Employees pursuant to Section 8.2(a) hereof.
8.3. OTHER OBLIGATIONS. The Seller shall be liable for all expenses
and other employee liabilities (whether known or unknown, recorded or
unrecorded) incurred on or before the Closing Date with respect to all
Employees. The Purchaser shall credit to the Hired
13
Employees all accrued vacation of such Employees as of the Closing Date and the
Seller shall reimburse the Purchaser for all amounts so credited.
8.4. CREDITED SERVICE. From and after the Closing, the Purchaser
shall credit to the Hired Employees, for all purposes under all benefit plans,
benefit arrangements and compensation policies and practices of the Purchaser,
all previous service recognized by the Seller for such Hired Employees on the
business day immediately preceding the Closing Date.
8.5. EMPLOYEE OPTIONS. Promptly after the Closing, the Purchaser
shall distribute to certain Hired Employees, determined by the Purchaser in its
sole discretion, options to purchase shares of the common stock of the
Purchaser.
8.6. NO SOLICITATION. During the two years immediately after the
Closing Date, neither the Seller nor the Purchaser shall employ or offer to
employ any of the then current employees of the other party.
ARTICLE IX
INDEMNIFICATION AND RELATED MATTERS
9.1. INDEMNIFICATION BY THE SELLER. Subject to the provisions of
this Article IX, the Seller agrees to indemnify and hold the Purchaser harmless
from and against all Damages resulting from or arising out of:
(a) the failure of any of the representations and warranties
contained in this Agreement to have been true in all material respects as
of the Closing Date;
(b) the failure of the Seller to comply in all material respects
with any of the covenants contained in this Agreement which are required to
be performed by the Seller;
(c) all liabilities and obligations of the Businesses and of the
Seller other than the Assumed Liabilities;
(d) the operation of the Businesses or ownership of the
Purchased Assets before the Closing Date; and
(e) all WIP which has remained uncollected as of the date six
months after the Closing Date; PROVIDED, HOWEVER, that payment by the
Seller of any amount pursuant to this Section 9.1(e) is conditioned upon
the following: (i) the Purchaser shall return to the Seller all of its
right, title and interest in and to such uncollected WIP and (ii) the
Purchaser shall not have taken any action which adversely affects the
Seller's ability to subsequently collect such uncollected WIP.
9.2. INDEMNIFICATION BY THE PURCHASER. Subject to the provisions of
this Article IX, the Purchaser agrees to indemnify and hold the Seller harmless
from and against all Damages resulting from or arising out of:
14
(a) the failure of any of the representations and warranties
contained in this Agreement to have been true in all material respects as
of the Closing Date;
(b) the failure of the Purchaser to comply in all material
respects with any of the covenants contained in this Agreement which are
required to be performed by the Purchaser;
(c) the Assumed Liabilities;
(d) the ownership of the Purchased Assets and the operation of
the Businesses associated therewith after the Closing Date;
(e) any Damages incurred by the Seller due to the Purchaser's
use of any of the Seller's trade names or any commonly used derivatives
thereof in order to effect any invoicing of clients, acceptance of
proposals or transfer of Contracts pursuant to Section 6.3(b) hereof;
(f) any non-payment under the irrevocable letter of credit to
be delivered to the Seller in accordance with Section 2.1(c) hereof; and
(g) all WIP collected by the Purchaser which is in excess of the
amount listed on Schedule 1.1(d) hereto or for which the Purchaser was paid
by the Seller pursuant to Section 9.1(e) hereof.
9.3. DETERMINATION OF DAMAGES AND RELATED MATTERS.
(a) In calculating any amount payable to the Purchaser pursuant
to Section 9.1 hereof or payable to the Seller pursuant to Section 9.2 hereof,
the Seller or the Purchaser, as the case may be, shall receive credit for (i)
any tax benefit allowable as a result of the facts giving rise to the claim for
indemnification, and (ii) any insurance recoveries; PROVIDED, HOWEVER, that no
amount shall be included for the Seller's or the Purchaser's, as the case may
be, special, consequential or punitive damages as between the Seller and the
Purchaser (as distinguished from third party recoveries).
(b) On the date six months after the Closing Date, the Seller
and the Purchaser shall calculate the amount payable to the Purchaser pursuant
to Section 9.1 hereof and the amount payable to the Seller pursuant to Section
9.2 hereof, which amounts remain unpaid and outstanding as of such time, and the
Purchaser shall add or subtract, as the case may be, the difference between such
amounts (the "Difference") from the total amount due to the Seller under the
Note. In the event the Seller and the Purchaser shall not agree on the
calculation of the Difference within five days after such date, the Purchaser
shall: (i) add or subtract, as the case may be, its calculation of the
Difference from the total amount due to the Seller at such time pursuant to the
Note, (ii) pay the total amount due to the Seller under the Note less the
Purchaser's calculation of the Difference, and (iii) the Seller and the
Purchaser shall resolve such dispute in accordance with Section 10.4 hereof.
(c) The Seller and the Purchaser agree that, except as
specifically set forth in this Agreement, neither party has made or shall have
liability for any representation or warranty, express or implied, in connection
with the transactions contemplated by this
15
Agreement, including in the case of the Seller and its representatives any
representation or warranty, express or implied, as to the accuracy or
completeness of any information regarding the Businesses, the Purchased Assets
and the Assumed Liabilities. The Purchaser acknowledges and agrees that the
Purchaser and its representatives have the experience and knowledge to evaluate
the Businesses, the Purchased Assets and the Assumed Liabilities, that the
Purchaser and its representatives have had access to such of the information and
documents and to such of the Businesses, the Purchased Assets and the Assumed
Liabilities as the Purchaser and its representatives shall have requested to see
and/or review, that the Purchaser and its representatives have had a full
opportunity to meet with appropriate management and other employees of the
Seller to discuss the Businesses, the Purchased Assets and the Assumed
Liabilities; and that, in determining to purchase the Purchased Assets and
assume the Assumed Liabilities, the Purchaser has made its own investigation
into, and based thereon the Purchaser has formed an independent judgment
concerning, the Businesses, the Purchased Assets and the Assumed Liabilities.
It is therefore expressly understood and agreed that, except for the
representations and warranties made and as otherwise expressly provided herein,
the Purchaser accepts the condition of the Businesses , the Purchased Assets and
the Assumed Liabilities "AS IS, WHERE IS" and without any representation,
warranty or guarantee, express or implied, as to merchantability, fitness for a
particular purpose or otherwise as to the condition, size, extent, quantity,
type or value of the Businesses, the Purchased Assets or the Assumed
Liabilities.
9.4. LIMITED SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The parties
hereto agree that the representations and warranties made in this Agreement and
any indemnification with respect thereto shall survive for two years after the
Closing Date. The foregoing time limitation shall be construed to apply only to
the indemnity obligations of the Seller under Section 9.1(a) hereof and only to
the indemnity obligations of the Purchaser under Section 9.2(a) hereof and not
to any other provisions of Section 9.1 or 9.2 hereof.
9.5. NOTICE OF INDEMNIFICATION. In the event any legal proceeding
shall be threatened or instituted or any claim or demand shall be asserted by
any person in respect of which payment may be sought by one party hereto from
the other party under the provisions of this Article IX or for breach of any of
the representations and warranties set forth herein, the party seeking
indemnification (the "Indemnitee") shall promptly cause written notice of the
assertion of any such claim of which it has knowledge which is covered by this
indemnity to be forwarded to the other party (the "Indemnitor"). Any notice of
a claim by reason of any of the representations, warranties or covenants
contained in this Agreement shall state specifically the representation,
warranty or covenant with respect to which the claim is made, the facts giving
rise to an alleged basis for the claim, and the amount of the liability asserted
against the Indemnitor by reason of the claim.
9.6. INDEMNIFICATION PROCEDURE FOR THIRD-PARTY CLAIMS. Except as
otherwise provided herein, in the event of the initiation of any legal
proceeding against an Indemnitee by a third party, the Indemnitor shall have the
absolute right after the receipt of notice, at its option and at its own
expense, to be represented by counsel of its choice, and to defend against,
negotiate, settle or otherwise deal with any proceeding, claim, or demand which
relates to any loss, liability or damage indemnified against hereunder;
PROVIDED, HOWEVER, that the Indemnitee may participate in any such proceeding
with counsel of its choice and at its sole cost and expense. The Seller and the
Purchaser agree to cooperate fully with each other in connection with the
defense, negotiation or settlement of any such legal proceeding, claim or
demand. To the extent the Indemnitor elects not to defend such proceeding,
claim or demand, and the
16
Indemnitee defends against or otherwise deals with any such proceeding, claim or
demand, the Indemnitee may retain counsel, at the expense of the Indemnitor, and
control the defense of such proceeding. If the Indemnitee shall settle any such
proceeding without the prior written consent of the Indemnitor, the Indemnitee
shall thereafter have no claim against the Indemnitor under this Article IX with
respect to any Damages occasioned by such settlement.
ARTICLE X
MISCELLANEOUS
10.1. DEFINITIONS. As used in this Agreement, the following terms
have the following meanings:
"ACCRUE" has the meaning set forth in Section 1.2 hereof.
"AFFILIATE" means any Person in which the Seller, either directly or
indirectly, owns more than 5% of the outstanding capital stock or over
which the Seller exercises control.
"AGREEMENT" has the meaning set forth in the preamble hereto.
"ASSUMED LIABILITIES" has the meaning set forth in Section 1.2 hereof.
"BUSINESSES" has the meaning set forth in the first recital hereof.
"CLOSING" means the consummation of the transactions contemplated by
this Agreement.
"CLOSING DATE" has the meaning set forth in Section 3.1 hereof.
"CONTRACTS" has the meaning set forth in Section 1.1(a) hereof.
"DAMAGES" means all claims, actions, losses, damages, costs, expenses
and liabilities (including reasonable attorneys' fees incident to the
foregoing).
"DIFFERENCE" has the meaning set forth in Section 9.3(b) hereof.
"DLR AGREEMENT" has the meaning set forth in Section 3.3(e) hereof.
"EMPLOYEES" means all persons employed by Seller with respect to the
Businesses on the business day immediately preceding the Closing Date.
"EQUIPMENT" has the meaning set forth in Section 1.1(c) hereof.
"GOVERNMENTAL BODY" means any government, or governmental or
regulatory body thereof, or political subdivision thereof, whether federal,
state, local or foreign, or any agency or instrumentality thereof, or any
court or arbitrator (public or private).
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"HIRED EMPLOYEES" means all Employees who accept offers of employment
from the Purchaser on or within 45 days after the Closing Date.
"IER AGREEMENT" has the meaning set forth in Section 3.3(d) hereof.
"INDEMNITEE" has the meaning set forth in Section 9.6 hereof.
"INDEMNITOR" has the meaning set forth in Section 9.6 hereof.
"LAW" means any federal, state, local or foreign law (including common
law), statute, code, ordinance, rule, regulation or other requirement or
guideline.
"LEASES" has the meaning set forth in Section 1.2(b) hereof.
"LEGAL PROCEEDING" means any judicial, administrative or arbitration
action, suit, proceeding (public or private), claim or governmental
proceeding.
"LIEN" means any lien, pledge, mortgage, deed of trust, security
interest, claim, lease, charge, option, right of first refusal, easement,
or other real estate declaration, covenant, condition, restriction or
servitude, transfer restriction under any shareholder or similar agreement,
encumbrance or any other restriction or limitation whatsoever.
"MATERIAL ADVERSE EFFECT" means any material adverse effect on, or any
effect that results in a material adverse change in, the Purchased Assets
or the Assumed Liabilities, as a whole, or the business, financial
condition, results of operations or liabilities of the Businesses, as a
whole.
"NEW YORK LEASE" has the meaning set forth in Section 7.3(iii) hereof.
"NON-HIRED EMPLOYEES" means all Employees who are not offered or who
do not accept offers of employment with the Purchaser on or within 45 days
after the Closing Date.
"NOTE" has the meaning set forth in Section 2.1(b) hereof.
"ORDER" means any order, injunction, judgment, decree, ruling, writ,
assessment or arbitration award.
"PERSON" means any individual, corporation, partnership, firm, joint
venture, association, joint-stock company, trust, limited liability
company, limited liability partnership, unincorporated organization or
Governmental Body.
"PURCHASED ASSETS" has the meaning set forth in Section 1.1 hereof.
"PURCHASE PRICE" has the meaning set forth in Section 2.1 hereof.
"PURCHASER" has the meaning set forth in the preamble hereto.
"PURCHASER DOCUMENTS" has the meaning set forth in Section 5.2 hereof.
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"REQUIRED INSURANCE" has the meaning set forth in Section 5.6 hereof.
"SELLER" has the meaning set forth in the preamble hereto.
"SELLER DOCUMENTS" has the meaning set forth in Section 4.2 hereof.
"SELLER'S KNOWLEDGE" means to the knowledge of Xxxxx X. Xxxxxxx,
Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxx, Xxxxx X. Xxxxx, Xxxxxx X. Xxxx or Xxxxx
X. Xxxxxxx.
"SLH AGREEMENT" has the meaning set forth in Section 3.3(f) hereof.
"WIP" has the meaning set forth in Section 1.1(d) hereof.
10.2. ENTIRE AGREEMENT. This Agreement, together with all of its
schedules and exhibits, contains, and is intended as, a complete statement of
all of the terms and the arrangements between the parties hereto with respect to
the matters provided for herein, and supersedes any and all previous agreements
and understandings between the parties hereto with respect to those matters.
10.3. GOVERNING LAW. This Agreement shall be governed by and
construed and interpreted in accordance with the law of the State of New Jersey.
10.4. DISPUTE RESOLUTION. All claims for monetary damages between
the Seller and the Purchaser with respect to this Agreement shall be settled by
binding arbitration administered under the rules and regulations of the American
Arbitration Association with the Federal Rules of Evidence applicable in all
respects thereto. The Seller and the Purchaser shall not be limited to
arbitration with respect to: (i) claims for equitable relief and (ii) claims for
damages brought by a third party or claims in which either the Seller or the
Purchaser intends to properly join a third party who has not agreed to
participate in an arbitration proceeding.
10.5. TRANSFER TAXES. The Purchaser shall pay: (i) all transfer and
documentary taxes and fees imposed with respect to instruments of conveyance in
the transactions contemplated hereby, and (ii) all sales, use, gains, excise and
other transfer or similar taxes on the transfer of the Purchased Assets and the
Assumed Liabilities hereunder. After the Closing, the Purchaser shall execute
and deliver to the Seller any certificates or other documents as the Seller may
reasonably request to perfect any exemption from any such transfer, documentary,
sales, gains, excise or use tax.
10.6. EXPENSES. Except as otherwise expressly provided in this
Agreement, each of the parties hereto shall bear its own expenses (including,
without limitation, fees and disbursements of its counsel, accountants and other
experts), incurred by it in connection with the preparation, negotiation,
execution, delivery and performance of this Agreement, each of the other
documents and instruments executed in connection with or contemplated by this
Agreement and the consummation of the transactions contemplated hereby and
thereby. Unless otherwise agreed to, the Seller and the Purchaser shall each
reimburse the other party for any costs and expenses due under this Agreement
within 30 days after the such party has received an invoice from the other party
with respect to such costs or expenses.
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10.7. TABLE OF CONTENTS AND HEADINGS. The table of contents and
section headings of this Agreement are for reference purposes only and are to be
given no effect in the construction or interpretation of this Agreement.
10.8. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed given: (i) on the same day
when delivered personally, (ii) on the same day when sent by telecopy, (iii) one
day after being sent by nationally-recognized overnight courier service, or (iv)
three days after being sent by U.S. registered or certified mail, return receipt
requested, to a party at the following address (or to such other address as such
party may have specified by notice given to the other party pursuant to this
provision):
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If to the Seller, to:
Hill International, Inc.
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Chairman and CEO
With a copy to:
Hill International, Inc.
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Vice President and General Counsel
If to the Purchaser, to:
ATC Environmental Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx
President and CEO
With a copy to:
ATC Environmental Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
General Counsel
10.9. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validly or enforceability of
any other provision of this Agreement, each of which shall remain in full force
and effect.
10.10. BINDING EFFECT; NO ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and assigns. No assignment of this Agreement or of any rights or
obligations hereunder may be made by any party (by operation of law or
otherwise) without the prior written consent of the other party hereto and any
attempted assignment without such required consent shall be void.
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10.11. NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement
shall create or be deemed to create any third-party beneficiary rights in any
Person not a party to this Agreement.
10.12. AMENDMENTS. This Agreement may be amended, supplemented or
modified, and any provision hereof may be waived, only pursuant to a written
instrument making specific reference to this Agreement signed by each of the
parties hereto.
10.13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
HILL INTERNATIONAL, INC.
/s/ Xxxxx X. Xxxxxxx
By:---------------------------------
Xxxxx X. Xxxxxxx
Chairman and CEO
ATC ENVIRONMENTAL INC.
/s/ Xxxxxxxx X. Xxxxxx
By:---------------------------------
Xxxxxxxx X. Xxxxxx
Senior Vice President
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