Exhibit 99.2
SHARE EXCHANGE AGREEMENT
This SHARE EXCHANGE AGREEMENT, is dated as of April 23, 1998, among WASTE
VENTURES CORPORATION, a Texas corporation ("Waste Ventures") and T. XXXX XXXXX,
an individual (the "Stockholder").
W I T N E S S E T H :
WHEREAS, the Stockholder is the record and beneficial owner of 7,616,000
shares of Series A Preferred Stock, $1.00 par value of Atlas Environmental,
Inc., (the "Company") a Colorado corporation (the "Company Preferred Stock" or
the "Company Preferred Stock"), which constitutes 100% of the issued and
outstanding Company Preferred Stock;
WHEREAS, the Stockholder desires to exchange his Company Preferred Stock
for shares of common stock, par value $.01 per share, of Waste Ventures, Inc.
("WasteMasters Common Stock") owned by Waste Ventures and Waste Ventures desires
to acquire all of the Company Preferred Stock owned by Stockholder through such
exchange, each on the terms and subject to the conditions contained herein (the
"Acquisition"); and
WHEREAS, the Stockholder has determined that the Acquisition is in the best
interests of the Stockholder, and has approved this Agreement and the
transactions contemplated hereby;
WHEREAS, the Board of Directors of Waste Ventures has determined that the
Acquisition is in the best interests of Waste Ventures and has approved this
Agreement and the transactions contemplated hereby;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto agree as follows:
ARTICLE I
EXCHANGE OF COMPANY PREFERRED STOCK
Section 1.1 EXCHANGE OF COMPANY PREFERRED STOCK. Upon the terms and subject
to the conditions of this Agreement, at the Closing (as hereinafter defined),
the Stockholder will convey, assign, transfer and deliver to Waste Ventures, and
Waste Ventures will acquire and accept from the Stockholder, all right, title
and interest in and to the Company Preferred Stock, free and clear of any lien,
encumbrance, security interest, mortgage, pledge, charge, claim, option, right
of first refusal or call, or restriction of any kind (collectively, "Liens")
other than those, if any, created by Waste Ventures.
Section 1.2 CONVEYANCE. Such conveyance, assignment, transfer and delivery
shall be effected by delivery by the Stockholder to Waste Ventures of stock
certificates representing the Company Preferred Stock, duly endorsed or
accompanied by stock powers duly executed in blank with appropriate transfer
stamps, if any, affixed, and any other documents that are necessary to transfer
title to the Company Preferred Stock to Waste Ventures, free and clear of any
and all Liens, other than those, if any, created by Waste Ventures.
Section 1.3 CONSIDERATION.
Upon the terms and subject to the conditions of this Agreement, Waste
Ventures will deliver or cause to be delivered 1,385,334 duly authorized,
validly issued, fully paid and nonassessable Rule 144 restricted common stock
shares of WasteMasters, Inc. owned by Waste Ventures and valued at $3.00 per
share in exchange for shares of Company Preferred Stock conveyed, assigned,
transferred and delivered to Waste Ventures by such Stockholder pursuant to
Section 1.1 hereof (the "Preferred Stock Per Share Consideration"). The
aggregate Preferred Stock Per Share Consideration payable to the Stockholder
pursuant to this Agreement is hereinafter referred to as the "Aggregate
Consideration."
Section 1.4 ADJUSTMENT OF THE AGGREGATE CONSIDERATION. If between the date
of this Agreement and the Closing Date (as hereinafter defined), the outstanding
shares of Company Preferred Stock, or WasteMasters Common Stock shall have been
changed into a different number of shares or a different class, by reason of any
stock dividend, subdivision, reclassification, recapitalization, split,
combination, exchange of shares or similar transaction, the Preferred Stock Per
Share Consideration shall be correspondingly adjusted to reflect such stock
dividend, subdivision, reclassification, recapitalization, split, combination,
exchange of shares or similar transaction. Nothing stated in the immediately
preceding sentence shall be construed as providing the holders of Company
Preferred Stock any preemptive or antidilutive rights.
Section 1.5 TRANSFER RESTRICTIONS; LEGEND.
(a) The shares of WasteMasters Common Stock to be issued to the Stockholder
pursuant to Section 1.3 hereof will not be registered under the Securities Act
of 1933, as amended (the "Securities Act"), on the Closing Date and may not be
transferred, sold or otherwise disposed of by any Stockholder except pursuant to
an effective registration statement under the Securities Act or in accordance
with an exemption from the registration requirements of the Securities Act.
Except as otherwise agreed between WasteMasters and the Stockholder, the
Stockholder agrees that it will not transfer, sell or otherwise dispose of any
of the shares of WasteMasters Common Stock received or reduce its interest in or
relating to such shares of WasteMasters Common Stock until after the expiration
of twelve (12) months following the Closing; and thereafter the Stockholder
agrees to sell no more than 40,000 shares of WasteMasters Common Stock per month
and all in accordance with SEC Rule 144. In the event that Stockholder desires
to sell more than the specified lock-up maximums of 40,000 per month, it shall
grant a first right of refusal to Waste Ventures or its designee who shall have
the right, but not the obligation to purchase such shares of WasteMasters Common
Stock in excess of such maximums at a discount of 6% of the bid price on the
date such right is extended. After receipt of written notice from Stockholder
that he desires to sell more than the specified monthly lock-up maximum of
40,000 shares, Waste Ventures or its designee shall have two (2) business days
after receipt of such notice to exercise such first right of refusal. The
Stockholder may sell the excess shares not purchased by Waste Ventures during
the next 20 business days.
(b) Each certificate representing shares of WasteMasters Common Stock
issued by WasteMasters and delivered by Waste Ventures to the Stockholder in
accordance with Section 1.3 shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS
THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT, AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE ACT, AS AMENDED, AND IN COMPLIANCE WITH
APPLICABLE SECURITIES LAWS OF ANY STATE WITH RESPECT THERETO OR IN ACCORDANCE
WITH AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER THAT
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND ALSO MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF BY THE HOLDER WITHOUT COMPLIANCE WITH THE
APPLICABLE SECURITIES AND EXCHANGE COMMISSION RULES AND REGULATIONS.
Waste Ventures agrees to cause WasteMasters to remove such legend (or any
relevant portion thereof), by prompt delivery of substitute certificates upon
the request of the holder if at such time such legend (or portion thereof) is no
longer required for purposes of, or applicable pursuant to, the prior provisions
of this Section 1.5.
ARTICLE II
CLOSING
Section 2.1 CLOSING. Subject to the satisfaction or waiver of all the
conditions to closing contained in Article VIII hereof, the closing (the
"Closing") of the Acquisition will take place at 10:00 a.m. on the first
business day after satisfaction or waiver of the conditions to the Closing
contained in Article VIII hereof, at the offices of Waste Ventures, unless
another date, time or place is agreed to by the parties hereto. The date and
time at which the Closing occurs is referred to herein as the "Closing Date." In
no event will the Closing Date be later than April 23, 1998.
Section 2.2 DELIVERY OF THE SHARES. At the Closing, the Stockholder will
deliver to Waste Ventures (a) certificates evidencing the shares of Company
Preferred Stock owned by such Stockholder ("Preferred Stock Certificates" or
"Certificates"), each duly endorsed or accompanied by stock powers duly executed
in blank with appropriate transfer stamps, if any, affixed, and any other
documents that are reasonably necessary to transfer title to such shares.
Section 2.3 DELIVERY OF COMMON STOCK. At the Closing, Waste Ventures will
(a) issue or cause to be issued to the Stockholder in exchange for Preferred
Stock Certificates, shares of WasteMasters Common Stock in an amount equal to
the Preferred Stock Per Share Consideration and (b) deliver certificates
representing such shares of WasteMasters Common Stock as follows: Waste Ventures
will deliver to the Stockholder one or more certificates representing the shares
of WasteMasters Common Stock issuable to such Stockholder pursuant to this
Agreement. The shares of WasteMasters Common Stock issued upon the surrender for
exchange of shares of Company Preferred Stock in accordance with the terms
hereof shall be deemed to have been issued in full satisfaction of all rights
pertaining to such shares of Company Preferred Stock.
Section 2.4 LOST CERTIFICATES. In the event that any Certificate has been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by Waste Ventures, the posting by such person of a bond in such
reasonable amount as Waste Ventures may direct as indemnity against any claim
that may be made against it with respect to such Certificate, Waste Ventures
shall, in respect of such lost, stolen or destroyed Certificate, issue or cause
to be issued the number of shares of WasteMasters Common Stock deliverable in
respect thereof pursuant to this Agreement.
ARTICLE III
INTENTIONALLY DELETED.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder represents and warrants as to itself to Waste Ventures as
follows:
Section 4.1 ORGANIZATION. The Stockholder is an individual and has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as it is now being conducted.
Section 4.2 AUTHORITY. The execution, delivery and performance of this
Agreement by the Stockholder and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Stockholder, and no other proceedings on the part of the Stockholder
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Stockholder and, assuming that this Agreement constitutes a valid and binding
obligation of the other parties hereto, constitutes a valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law). The Stockholder has approved
the transactions contemplated hereby and has determined that such transactions
are in the best interests of the Company and such Stockholder.
Section 4.3 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings,
permits, authorizations, consents and approvals as may be required, the
execution, delivery or performance of this Agreement by each Stockholder, the
consummation by each Stockholder of the transactions contemplated hereby and
compliance by each Stockholder with any of the provisions hereof shall not (a)
conflict with or result in any breach of any provisions of the organizational
documents of such Stockholder, (b) require any filing by such Stockholder or any
of its Subsidiaries with, or any permit, authorization, consent or approval to
be obtained by such Stockholder of any Governmental Entity, (c) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time, or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, any of the terms, conditions or provisions of any
Contract to which such Stockholder is a party or by which any of them or any of
their properties or assets may be bound or affected or (d) violate any order,
writ, injunction, decree, statute, ordinance, rule or regulation applicable to
such Stockholder, except, in the case of clause (c) or (d), for violations,
breaches or defaults which would not have a material adverse effect on the
ability of such Stockholder to consummate the transactions contemplated hereby.
Section 4.4 TITLE TO SHARES. Section 4.4 of the Stockholder Disclosure
Schedule sets forth the number of outstanding shares of Company Preferred Stock
owned by the Stockholder and the date of Stockholder's acquisition of same, and
the Stockholder (i) owns such shares free and clear of any Liens and (ii) has
full power, right and authority to exchange such shares pursuant to the terms of
this Agreement.
Section 4.5 INVESTMENT INTENTION. The Stockholder is acquiring the shares
of WasteMasters Common Stock issuable to such Stockholder pursuant to the terms
of this Agreement for investment solely for such Stockholder's own account and
not with a view to or for resale in connection with the distribution or other
disposition thereof except for such which are permitted hereunder and under the
Securities Act.
Section 4.6 FEDERAL SECURITIES LAW MATTERS. The Stockholder has been
advised that (a) neither the sale nor the offer of the shares of WasteMasters
Common Stock issuable pursuant to the terms of this Agreement has been
registered under the Securities Act, (b) such shares must be held and the
Stockholder must continue to bear the economic risk of the investment in the
shares of WasteMasters Common Stock issuable to such Stockholder pursuant to the
terms of this Agreement until such shares are subsequently registered under the
Securities Act or an exemption from registration is available, (c) a restrictive
legend in the form set forth in Section 1.5(c) hereof shall be placed on the
certificates representing the shares of WasteMasters Common Stock issuable
pursuant to the terms of this Agreement and (d) appropriate stop-transfer
instructions shall be issued by WasteMasters, Inc. to its stock transfer agent
with respect to such shares; provided that such legend shall be removed and such
stop-transfer instructions lifted when and as contemplated by Section 1.5(c)
hereof.
Section 4.7 INTENTIONALLY DELETED.
Section 4.8 ACCESS TO INFORMATION. (a) The Stockholder understands and is
aware of all the risk factors related to an investment in the shares of
WasteMasters Common Stock issuable pursuant to the terms of this Agreement, (b)
the Stockholder or its attorneys or advisors have carefully reviewed this
Agreement and have been granted the opportunity to ask questions of, and receive
answers from, representatives of Waste Ventures concerning the terms and
conditions of the investment in the shares of WasteMasters Common Stock issuable
pursuant to the terms of this Agreement and to obtain any additional information
which such Stockholder deems necessary, (c) the Stockholder's knowledge and
experience in financial and business matters is such that the Stockholder is
capable of evaluating the risks of the investment in the shares of WasteMasters
Common Stock issuable pursuant to the terms of this Agreement and (d) in making
its decision to approve the transactions contemplated hereby and to exchange its
shares of Company Preferred Stock for shares of WasteMasters Common Stock
pursuant to this Agreement, the Stockholder has relied upon the independent
investigation made by such Stockholder and, to the extent believed by the
Stockholder to be appropriate, such Stockholder's representatives, including
such Stockholder's own professional, tax and other advisors.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF WASTE VENTURES
Waste Ventures represents and warrants to the Stockholder as
follows:
Section 5.1 ORGANIZATION. Waste Ventures is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and corporate authority to
own, lease and operate its properties and to carry on its business as now being
conducted, except where the failure to be so organized, existing and in good
standing or to have such power and authority would not have a Waste Ventures
Material Adverse Effect (as hereinafter defined). As used in this Agreement, any
reference to any event, change or effect having a "Waste Ventures Material
Adverse Effect" means such event, change or effect is, or is likely to be,
materially adverse to (a) the business, properties, financial condition or
results of operations of Waste Ventures and its Subsidiaries, taken as a whole
or (b) the ability of Waste Ventures to consummate the transactions contemplated
hereby.
Section 5.2 INTENTIONALLY DELETED.
Section 5.3 AUTHORITY. Waste Ventures has the requisite corporate power and
corporate authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by Waste Ventures and the consummation by Waste Ventures of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Waste Ventures and no other corporate
proceedings on the part of Waste Ventures are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Waste Ventures and, assuming that this
Agreement constitutes a valid and binding obligation of the other parties
hereto, constitutes a valid and binding obligation of Waste Ventures,
enforceable against Waste Ventures in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law).
Section 5.4 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings,
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Securities Act, the execution, delivery or
performance of this Agreement by Waste Ventures, the consummation by Waste
Ventures of the transactions contemplated hereby and compliance by Waste
Ventures with any of the provisions hereof shall not (a) conflict with or result
in any breach of any provision of the organizational documents of Waste
Ventures, (b) require any filing by Waste Ventures or any of its Subsidiaries
with, or any permit, authorization, consent or approval to be obtained by Waste
Ventures or any of its Subsidiaries of, any Governmental Entity (except where
the failure to obtain such permits, authorizations, consents or approvals or to
make such filings would not have a Waste Ventures Material Adverse Effect), (c)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time, or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any Contract to which Waste Ventures or any of its Subsidiaries is a party or
by which any of them or any of their properties or assets may be bound or
affected or (d) violate any order, writ, injunction, decree, statute, ordinance,
rule or regulation applicable to Waste Ventures or any of its Subsidiaries,
except, in the case of clause (c) or (d), for violations, breaches, defaults,
terminations, cancellations or accelerations which would not have a Waste
Ventures Material Adverse Effect.
Section 5.5 INTENTIONALLY DELETED.
Section 5.6 BROKERS OR FINDERS. Neither Waste Ventures nor any of its
Subsidiaries has any liability to any agent, broker, investment banker,
financial advisor or other firm or person for any broker's or finder's fee or
any other commission or similar fee in connection with any of the transactions
contemplated by this Agreement.
Section 5.7 TAKEOVER STATUTES. To the knowledge of Waste Ventures, no
Takeover Statute is applicable to the transactions contemplated by this
Agreement.
Section 5.8 INTENTIONALLY DELETED.
Section 5.9 LEGAL PROCEEDINGS. Except as disclosed prior to the date
hereof, and in public filings; (i) no litigation, investigation of which Waste
Ventures has knowledge or proceeding of or before any arbitrator or Governmental
Entity has been commenced and is pending or, to the knowledge of Waste Ventures,
is threatened by or against WasteMasters or Waste Ventures or any of its
Subsidiaries or against any of their respective properties or assets which would
have, individually or in the aggregate, a Waste Ventures Material Adverse
Effect; and (ii) there are no judgments, injunctions, decrees, orders or other
determinations of an arbitrator or Governmental Entity applicable to the Waste
Ventures or any of its Subsidiaries or any of their respective properties or
assets which would have, individually or in the aggregate, a Waste Ventures
Material Adverse Effect.
Section 5.10 COMPLIANCE WITH LAWS. Except as disclosed prior to the date
hereof, and in public filings, each of WasteMasters, Waste Ventures and its
Subsidiaries is in compliance in all respects with all laws, statutes, orders,
rules, regulations, ordinances and judgments of any Governmental Entity, holds
all Permits that are necessary to the conduct of its business or the ownership
of its properties, and is in compliance with each such Permit, except where the
failure to so comply with an applicable law or hold such Permits would not have
a Waste Ventures Material Adverse Effect.
Section 5.11 INVESTMENT INTENTION. Waste Ventures is acquiring the Company
Shares pursuant to the terms of this Agreement for investment solely for Waste
Ventures own account and not with a view to or for resale in connection with the
distribution or other disposition thereof except for such which are permitted
hereunder and under the Securities Act.
Section 5.12 FEDERAL SECURITIES LAW MATTERS. Waste Ventures has been
advised that (a) neither the sale nor the offer of the Company Preferred Stock
pursuant to the terms of this Agreement has been registered under the Securities
Act, (b) such shares must be held and Waste Ventures must continue to bear the
economic risk of the investment in the Company Preferred Stock pursuant to the
terms of this Agreement until such shares are subsequently registered under the
Securities Act or an exemption from registration is available, (c) a restrictive
legend in the form set forth in Section 1.5(c) hereof shall be placed on the
certificates representing the Company Preferred Stock pursuant to the terms of
this Agreement and (d) appropriate stop-transfer instructions shall be issued by
the Company to its stock transfer agent with respect to such shares; provided
that such legend shall be removed and such stop-transfer instructions lifted
when and as contemplated by Section 1.5(c) hereof.
Section 5.13 ACCESS TO INFORMATION. (a) Waste Ventures understands and is
aware of all the risk factors related to an investment in the Company Preferred
Stock issuable pursuant to the terms of this Agreement, (b) Waste Ventures or
its attorneys or advisors have carefully reviewed this Agreement and have been
granted the opportunity to ask questions of, and receive answers from,
representatives of the Company concerning the terms and conditions of the
investment in the Company Preferred Stock issuable pursuant to the terms of this
Agreement and to obtain any additional information which Waste Ventures deems
necessary, (c) Waste Ventures' knowledge and experience in financial and
business matters is such that Waste Ventures is capable of evaluating the risks
of the investment in the Company Preferred Stock issuable pursuant to the terms
of this Agreement and (d) in making its decision to approve the transactions
contemplated hereby and to exchange WasteMasters Common Stock for the Company
Preferred Stock pursuant to this Agreement, Waste Ventures has relied upon the
independent investigation made by Waste Ventures and, to the extent believed by
Waste Ventures to be appropriate, WasteMaster's representatives, including
WasteMaster's own professional, tax and other advisors.
ARTICLE VI
COVENANTS AND OTHER AGREEMENTS
Section 6.1 INTENTIONALLY DELETED.
Section 6.2 NO SOLICITATION. Unless and until this Agreement is terminated
in accordance with its terms, the Stockholder shall not, directly or indirectly,
solicit or initiate discussions with, enter into negotiations or agreements
with, or furnish any information about the Company that is not publicly
available to, or otherwise assist, facilitate or encourage, any entity, person
or group (other than Waste Ventures, an affiliate of Waste Ventures or their
authorized representatives) concerning any proposal for a merger, sale of
substantial assets, sale of any shares of capital stock or rights to acquire any
shares of capital stock, recapitalization or other business combination
transaction involving the Company or any of its Subsidiaries (a "Competing
Transaction"). The Stockholder shall instruct the respective officers,
directors, employees, advisors, affiliates, counsel and agents (collectively,
"Representatives") of the Company and its Subsidiaries not to take any action
contrary to the provisions of the previous sentence. The Stockholder shall
notify Waste Ventures immediately in writing if the Company becomes aware that
any inquiries or proposals are received by, any information is requested from,
or any negotiations or discussions are sought to be initiated with, the Company
or its Subsidiaries with respect to a Competing Transaction.
Section 6.3 INTENTIONALLY DELETED.
Section 6.4 INTENTIONALLY DELETED.
Section 6.5 NOTIFICATION OF CERTAIN MATTERS. Each of the Stockholder and
Waste Ventures shall promptly advise the other party orally and in writing of
(i) any representation or warranty made by it contained in this Agreement that
is qualified as to materiality becoming untrue or inaccurate in any respect or
any such representation or warranty that is not so qualified becoming untrue or
inaccurate in any material respect or (ii) the failure by it to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement or (iii) any event or
change or impending occurrence of any event or change of which it has knowledge
and which has resulted, or which, insofar as can reasonably be foreseen, is
likely to result, in any of the conditions to the transactions contemplated
hereby set forth in Article VIII hereof not being satisfied; provided, however,
that no such notification shall affect the representations, warranties,
covenants or agreements of the parties or the conditions to the obligations of
the parties under this Agreement.
Section 6.6 INTENTIONALLY DELETED.
Section 6.7 REASONABLE EFFORTS.
(a) Subject to the terms and conditions of this Agreement, each of the
parties hereto agrees to use its commercially reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, (i) the preparation and filing of all applicable
forms under applicable laws, (ii) such actions as may be required to be taken
under applicable state securities or "blue sky" laws in connection with the
issuance of shares of WasteMasters Common Stock and contemplated hereby, (iii)
the preparation and filing of all other forms, registrations and notices
required to be filed to consummate the transactions contemplated by this
Agreement and the taking of such actions as are necessary to obtain any
requisite consents, approvals, authorizations or orders of any Governmental
Entity or third party and (iv) the satisfaction of all conditions to the
Closing.
(b) Each party shall promptly consult with the other with respect to and
provide any necessary information not subject to legal privilege with respect to
and provide the other (or its counsel) copies of, all filings made by such party
with any Governmental Entity or any other information supplied by such party to
a Governmental Entity in connection with this Agreement and the transactions
contemplated by this Agreement (except personal information with respect to
officers and directors). Each party hereto shall promptly inform the other of
any material communication from any Governmental Entity regarding any of the
transactions contemplated by this Agreement. If any party or affiliate thereof
receives a request for additional information or documentary material from any
such Governmental Entity with respect to the transactions contemplated by this
Agreement, then such party will endeavor in good faith to make, or cause to be
made, as soon as reasonably practicable and after consultation with the other
party, an appropriate response in compliance with such request.
(c) Notwithstanding the foregoing, nothing in this Agreement shall be
deemed to require Waste Ventures to enter into any agreement with any
Governmental Entity or to consent to any order, decree or judgment requiring
Waste Ventures to hold separate or divest, or to restrict the dominion or
control of Waste Ventures or any of its affiliates over any other business of
Waste Ventures, its affiliates or the Company and its Subsidiaries. In addition,
no party hereto shall take any action after the date hereof that could
reasonably be expected to materially delay the obtaining of, or result in not
obtaining, any permission, approval or consent from any Governmental Entity
necessary to be obtained prior to the Closing.
Section 6.8 INTENTIONALLY DELETED.
Section 6.9 INTENTIONALLY DELETED.
Section 6.10 INTENTIONALLY DELETED.
Section 6.11 INTENTIONALLY DELETED.
Section 6.12 INTENTIONALLY DELETED.
Section 6.13 TAKEOVER STATUTES. If any Takeover Statute is or may become
applicable to the transactions contemplated by this Agreement, the Stockholder
shall cause the Company, and Waste Ventures and their respective Boards of
Directors shall grant such approvals and take such actions as are necessary so
that the transactions contemplated by this Agreement may be consummated as
promptly as practicable on the terms contemplated thereby and otherwise to act
to eliminate or minimize the effects of any such Takeover Statute on any of the
transactions contemplated by this Agreement.
Section 6.14 CERTAIN ACTIONS. Each of the parties hereto shall not take any
action that would, or that could reasonably be expected to, result in any of the
conditions to their respective obligations to consummate the transactions
contemplated hereby set forth in Article VIII not being satisfied.
Section 6.15 INTENTIONALLY DELETED.
Section 6.16 FURTHER ASSURANCES. In the event that at any time after the
Closing Date any further action is necessary or desirable to carry out the
purposes of this Agreement, the Stockholder and Waste Ventures shall take such
necessary action.
Section 6.17 LIMITED SURVIVAL OF WARRANTIES AND REPRESENTATIONS. The
warranties and representations contained in Articles IV and V shall survive the
Closing for a period of 12 months following the date of this Agreement, after
which they shall automatically expire and be of no further force or effect.
Section 6.18 INTENTIONALLY DELETED.
ARTICLE VII
INTENTIONALLY DELETED.
ARTICLE VIII
CONDITIONS
Section 8.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
ACQUISITION. The respective obligation of each party hereto to consummate the
transactions contemplated hereby are subject to the satisfaction or waiver, on
or prior to the Closing Date, of each of the following conditions:
(a) NO INJUNCTIONS OR RESTRAINTS. (i) No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing or
materially restricting the consummation of the transactions contemplated hereby
shall be in effect (each party agreeing to use all reasonable efforts to have
any such order reversed or injunction lifted) and (ii) no action by any
Governmental Entity shall be pending seeking to prevent or materially restrict
the consummation of the transactions contemplated hereby; provided, however,
that the conditions set forth in the preceding clause (ii) shall not be a
condition to Waste Ventures' obligations unless Waste Ventures has complied in
all material respects with the provisions of Section 6.7 hereof.
(b) REGULATORY APPROVALS. (i) All authorizations, consents, orders or
approvals of those Governmental Entities listed in Section 8.1(c) of the
Stockholder Disclosure Schedule shall have been obtained and (ii) all other
authorizations, consents, orders or approvals of, or declarations or filings
with, or expirations of waiting periods imposed by, any Governmental Entity, the
failure of which to be obtained, made or occurred would have a Company Material
Adverse Effect or a Waste Ventures Material Adverse Effect, shall have been
obtained, made or occurred; provided, however, that the condition set forth in
the preceding clause (ii) shall not be a condition to Waste Ventures'
obligations unless Waste Ventures has complied in all material respects with the
provisions of Section 6.7 hereof. Waste Ventures shall have received all state
securities or "blue sky" permits and other authorizations necessary to issue or
cause the issuance of the WasteMasters Common Stock pursuant to this Agreement.
(c) THIRD PARTY CONSENTS. All consents of those third parties listed in
Section 8.1(d) of the Stockholder Disclosure Schedule shall have been obtained
on terms reasonably acceptable to Waste Ventures.
Section 8.2 CONDITIONS TO OBLIGATION OF WASTE VENTURES. The obligation of
Waste Ventures to effect the transactions contemplated hereby are also subject
to the satisfaction, on or prior to the Closing Date, of the following
additional conditions unless waived by Waste Ventures:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Stockholder set forth in this Agreement (i) that are qualified as to
materiality shall be true, complete and correct in all respects and (ii) that
are not so qualified shall be true, complete and correct in all material
respects, in each case as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date (except that the accuracy of
the representations and warranties that by their terms speak as of the date of
this Agreement or some other date shall be determined as of such date) and, in
each case except for changes expressly permitted by this Agreement.
(b) PERFORMANCE OF OBLIGATIONS OF THE STOCKHOLDER. The Stockholder shall
have performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Closing Date.
(c) CERTIFICATE. Waste Ventures shall have received a certificate, dated
the Closing Date, signed on behalf of the Stockholder to the effect that the
conditions set forth in Sections 8.2(a), 8.2(b) and 8.2(e) have been satisfied.
(d) INTENTIONALLY DELETED.
(e) NO MATERIAL ADVERSE CHANGE. No change or development, or combination of
changes or developments shall have occurred which would have a Company Material
Adverse Effect.
(f) INTENTIONALLY DELETED.
(g) INTENTIONALLY DELETED
(h) INTENTIONALLY DELETED.
(i) INTENTIONALLY DELETED.
(j) INTENTIONALLY DELETED.
(k) INTENTIONALLY DELETED.
Section 8.3 CONDITIONS TO OBLIGATION OF THE STOCKHOLDER. The obligation of
the Stockholder to consummate the transactions contemplated hereby is also
subject to the satisfaction of the following additional conditions, on or prior
to the Closing Date, unless waived by the Stockholder's Representative (as
hereinafter defined):
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Waste Ventures set forth in this Agreement (i) that are qualified as to
materiality shall be true, complete and correct in all respects and (ii) that
are not so qualified shall be true, complete and correct in all material
respects, in each case as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date (except that the accuracy of
the representations and warranties that by their terms speak as of the date of
this Agreement or some other date shall be determined as of such date).
(b) PERFORMANCE OF OBLIGATIONS OF WASTE VENTURES. Waste Ventures shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date.
(c) CERTIFICATES. The Stockholder shall have received a certificate, dated
the Closing Date, signed on behalf of Waste Ventures by its chief executive
officer or its chief financial officer to the effect that the conditions set
forth in Sections 8.3(a), 8.3(b) and 8.3(d) have been satisfied.
(d) NO MATERIAL ADVERSE CHANGE. No change or development, or combination of
changes or developments shall have occurred which would have a Waste Ventures
Material Adverse Effect.
(e) CORPORATE ACTION. The Stockholder shall have received from Waste
Ventures (i) copies of resolutions of Waste Ventures' Board of Directors
approving and adopting this Agreement and the transactions contemplated hereby,
certified on behalf of Waste Ventures by its corporate secretary, and (ii) a
certificate of existence and of good standing from the Secretary of State of the
State of Texas for Waste Ventures dated as of a date not more than ten (10) days
prior to the Closing Date.
(f) INTENTIONALLY DELETED.
(g) INTENTIONALLY DELETED.
(h) INTENTIONALLY DELETED.
ARTICLE IX
TERMINATION AND AMENDMENT
Section 9.1 INTENTIONALLY DELETED
Section 9.2 INTENTIONALLY DELETED
Section 9.3 AMENDMENT. This Agreement may be amended by the parties hereto
by action taken or authorized by its Board of Directors, in the case of Waste
Ventures, and, by the Stockholder, in the case of the Stockholder. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
Section 9.4 EXTENSION; WAIVER. At any time prior to the Closing Date, the
parties hereto, by action taken or authorized by its Board of Directors, in the
case of Waste Ventures, and by the Stockholder, in the case of the Stockholder,
may, to the extent legally allowed, (i) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (iii) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party.
ARTICLE X
INTENTIONALLY DELETED.
ARTICLE XI
MISCELLANEOUS
Section 11.1 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given on the date delivered if delivered
personally (including by reputable overnight courier), on the date transmitted
if sent by facsimile (which is confirmed), or mailed by registered or certified
mail (return receipt requested) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to Waste Ventures, to:
Waste Ventures, Inc.
0000 Xxxxx Xxxxxxxx
Xxxxx, Xxxxx 00000
(b) if to the Stockholder's Representative, to:
T. Xxxx Xxxxx
X/x Xxxxxxx & Xxxxxx
000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxx X. Xxxx, Esq.
Section 11.2 INTENTIONALLY DELETED.
Section 11.3 INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement they shall be deemed to be
followed by the words "without limitation." The phrase "made available" in this
Agreement shall mean that the information referred to has been made available if
requested by the party to whom such information is to be made available. The
phrases "the date of this Agreement," "the date hereof" and terms of similar
import, unless the context otherwise requires, shall be deemed to refer to April
23, 1998. The word "knowledge" of or with respect to the Stockholder shall mean
the actual knowledge of T. Xxxx Xxxxx; and the words "know", "known" and like
terms with respect to the Company shall have correlative meanings.
Section 11.4 COUNTERPARTS. This Agreement may be executed in counterparts,
all of which shall be considered one and the same agreement and shall become
effective when a counterpart has been signed by each of the parties and
delivered to each of the other parties, it being understood that all parties
need not sign the same counterpart.
Section 11.5 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
(including the documents and the instruments referred to herein) (a) constitute
the entire agreement and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and thereof, and (b) except as provided in Section 6.15 hereof, are not intended
to confer upon any person other than the parties hereto and thereto any rights
or remedies hereunder or thereunder.
Section 11.6 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Florida without regard to any
applicable conflicts of law principles.
Section 11.7 SPECIFIC PERFORMANCE. The parties hereto agree that if any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof (without the requirement of the posting of any bond or other security),
in addition to any other remedy at law or equity.
Section 11.8 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
Section 11.9 SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated thereby is not affected in any manner
adverse to any party. Upon any such determination, the parties shall negotiate
in good faith in an effort to agree upon a suitable and equitable substitute
provision to effect original intent of the parties.
Section 11.10 INTENTIONALLY DELETED.
Section 11.11 FEES AND EXPENSES. Whether or not the transactions
contemplated hereby are consummated, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by Waste Ventures, if incurred by Waste Ventures, or any of its affiliates
(other than the Stockholder and its affiliates), or by the Stockholder, if
incurred by the Stockholder, its affiliates, or the Stockholder.
Section 11.12 JURISDICTION. Subject to Section 10.3 hereof, each of the
Stockholder, the Company and Waste Ventures hereby (i) consents to be subject to
jurisdiction of the United States District Court for the Southern District of
Florida and the jurisdiction of the courts of the State of Florida in any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby, (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
(iii) agrees that it will not bring any action relating to this Agreement or the
transactions contemplated hereby in any court other than the United States
District Court for the Southern District of Florida or the courts of the State
of Florida, (iv) irrevocably waives (A) any objection that it may have or
hereafter have to the laying of venue of any such suit, action or proceeding in
such court and (B) any claim that any such suit, action or proceeding in any
such court has been brought in an inconvenient forum and (v) irrevocably
consents to the service of any and all process in any such suit, action or
proceeding by the delivery of such process to such party at the address and in
the manner provided in Section 11.1 hereof.
Section 11.13 JOINT PRESS RELEASE. Waste Ventures and Stockholder shall
jointly cooperate in preparing a press release concerning the subject matter of
this Agreement and neither Waste Ventures or Stockholder shall issue a press
release without the approval of the other party.
IN WITNESS WHEREOF, Waste Ventures and the Stockholder have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
WASTE VENTURES CORPORATION
By:/s/Xxxxxx X. Xxxxxx, Xx.
------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
THE STOCKHOLDER
/s/T. Xxxx Xxxxx
--------------------------------------
T. XXXX XXXXX
