EXHIBIT 2.5
STOCKHOLDER SUPPORT AGREEMENT
STOCKHOLDER SUPPORT AGREEMENT (this "Agreement"), dated as of July 2,
1998, by and between Superior Services, Inc., a Wisconsin corporation
("Parent"), and the undersigned record and beneficial owner (the "Stockholder")
of common stock, $.10 par value per share ("Company Common Stock"), of GeoWaste
Incorporated, a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Parent and the Company are entering
into that certain Agreement and Plan of Merger of even date herewith (as
amended, supplemented or replaced from time to time, provided that any
amendment, supplement, replacement or waiver shall not materially affect the
rights of the undersigned, including those created under the Merger Agreement as
first executed as of the date hereof, the "Merger Agreement"; capitalized terms
used but not defined herein shall have the meanings set forth in the Merger
Agreement) contemplating a business combination between a wholly-owned
subsidiary of Parent and the Company (the "Merger");
WHEREAS, as of the date hereof, the Stockholder beneficially owns an
aggregate of 426,800 shares of Company Common Stock (the "Currently Owned
Shares") and desires to enter into this Agreement in order to induce Parent to
enter into the Merger Agreement; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested the Stockholder to agree to vote any and all
shares of Company Common Stock beneficially owned by the Stockholder as of the
record date of the Stockholders' Meeting (the "Owned Shares") in favor of
approval of the Merger Agreement, the Merger and the transactions contemplated
thereby and the Stockholder hereby agrees to so vote such Owned Shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, intending to be legally bound hereby,
the parties hereto agree as follows:
1. Agreement to Vote.
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1.1 Voting. The Stockholder hereby agrees that, during the time this
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Agreement is in effect and for so long as the Board of Directors of the Company
has not withdrawn its recommendation for the adoption of the Merger Agreement
and approval of the Merger, at any meeting of the stockholders of the Company,
however called, the Stockholder
shall vote the Owned Shares (a) in favor of the adoption of the Merger Agreement
and approval of the Merger; and (b) against any Acquisition Proposal.
1.2 Irrevocable Proxy. In the event that the Stockholder shall
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breach its covenant set forth in Section 1.1, the Stockholder (without any
further action on Stockholder's part) shall be deemed to have hereby irrevocably
appointed the Chief Executive Officer or the Chief Financial Officer of Parent
as the attorney and proxy of the Stockholder, with full power of substitution,
to vote, and otherwise act (by written consent or otherwise) with respect to all
the Owned Shares that the Stockholder is entitled to vote at any meeting of
stockholders of the Company (whether annual or special and whether or not an
adjourned or postponed meeting) or consent in lieu of any such meeting or
otherwise, to vote such Owned Shares as set forth in Section 1.1 above. THIS
PROXY AND POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. The
Stockholder hereby revokes, effective upon the execution and delivery of the
Merger Agreement by the parties thereto, all other proxies and powers of
attorney with respect to the Owned Shares that the Stockholder may have
heretofore appointed or granted, and no subsequent proxy or power of attorney
(except in furtherance of the Stockholder's obligations under Section 1.1
hereof) shall be given or written consent executed (and if given or executed,
shall not be effective) by the Stockholder with respect thereto so long as the
Stockholder's obligations under this Section 1.2 remain in effect.
2. Expiration. This Agreement and the Stockholder's obligations
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hereunder shall terminate on the earlier of (a) the Effective Time, (b) the
termination of the Merger Agreement in accordance with its terms and (c) an
amendment, supplement, replacement or waiver of a provision of the Merger
Agreement that materially affected the rights of the undersigned.
3. Representations and Warranties.
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3.1 Representations and Warranties of Parent. Parent hereby
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represents and warrants to the Stockholder that it has full power and authority
to execute, deliver and perform this Agreement; such execution, delivery and
performance have been duly and validly authorized by the Board of Directors of
Parent, and no other corporate proceedings on the part of Parent are necessary
to authorize this Agreement or to consummate the transactions contemplated
hereby; and this Agreement has been duly and validly executed and delivered by
Parent and constitutes a legal, valid and binding agreement of Parent,
enforceable against Parent in accordance with its terms, except to the extent
(i) such enforcement may be limited by applicable bankruptcy, insolvency or
similar laws affecting creditors' rights and (ii) the remedy of specific
enforcement and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
3.2 Representations and Warranties of the Stockholder. The
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Stockholder hereby represents and warrants to Parent as follows:
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(a) The Stockholder has good and valid title to the Currently Owned
Shares free and clear of any lien, charge, encumbrance or claim of whatever
nature, other than restrictions upon resale which may be imposed by applicable
securities laws.
(b) As of the date hereof, the Stockholder beneficially owns the
Currently Owned Shares. The Stockholder does not have any right to acquire, nor
is it the beneficial owner of any other shares of Company Common Stock or any
securities convertible into or exchangeable or exercisable for any shares of
Company Common Stock, except for (i) stock options and warrants and (ii) shares
of Company Common Stock presently owned or hereafter acquired in its market
making capacity.
(c) The Stockholder has full power and authority to enter into and
perform all of its obligations under this Agreement. The execution, delivery
and performance of this Agreement by the Stockholder will not violate any other
agreement to which the Stockholder is a party including, without limitation, any
voting agreement, stockholders agreement or voting trust. This Agreement has
been duly and validly executed and delivered by Stockholder and constitutes a
valid and binding agreement of the Stockholder, enforceable against Stockholder
in accordance with its terms, except to the extent (i) such enforcement may be
limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights and (ii) the remedy of specific enforcement and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
(d) The execution, delivery and performance of this Agreement by the
Stockholder will not constitute a breach, violation or default (or any event
which, with notice or lapse of time or both, would constitute a default) under,
or result in the termination of, or accelerate the performance required by, or
result in a right of termination or acceleration under, or result in the
creation of any lien or encumbrance upon any of the properties or assets of
Stockholder under, any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument to which the Stockholder is a party or by
which its respective properties or assets are bound.
4. Certain Covenants of the Stockholder. The Stockholder hereby
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covenants and agrees as follows:
4.1 No Solicitation of Transactions. From and after the date hereof,
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the Stockholder shall not, directly or indirectly, solicit, initiate or
knowingly encourage (including by way of furnishing information, other than the
Company SEC Documents), or knowingly take any other action to facilitate, any
inquiries or the making of any proposal which constitutes, or may reasonably be
expected to lead to, any Acquisition Proposal. The Stockholder shall promptly
advise the Company of the receipt of any Acquisition Proposal or if any
inquiries are received by, any information or documents are requested from, or
any negotiations or discussions are sought to be instituted or continued with,
the Stockholder.
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4.2 Accounting Matters. (a) In the event the Stockholder wishes to
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undertake any action with respect to the Currently Owned Shares (including,
without limitation, a disposition of such shares), the Stockholder shall consult
with Parent in advance of taking such action. The Stockholder shall provide
Parent with a written proposal describing such action and the reasonable basis
upon which the Stockholder believes that such action would not prevent Parent
from accounting for the business combination to be effected pursuant to the
Merger Agreement as a pooling of interests, together, if requested by Parent,
with documentation from its attorneys and/or accountants supporting such belief.
(b) The Stockholder shall not take or agree to take any action that,
upon written advice of Parent's regularly retained auditing firm, a copy of
which advice shall be delivered to the undersigned, would prevent Parent from
accounting for the business combination to be effected pursuant to the Merger
Agreement as a pooling of interests.
4.3 Condition Precedent to Distributions. In the event the
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Stockholder shall distribute shares of Company Common Stock to its partners, as
a condition precedent to such distribution, the Stockholder shall have obtained
from each partner receiving shares in such distribution, an agreement, in form
and substance reasonably acceptable to Parent, substantially similar to this
Agreement, duly executed and delivered by each such partner.
5. Further Assurances. From time to time, at the other party's
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request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective the transactions
contemplated by Section 1 of this Agreement.
6. Miscellaneous.
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6.1 Entire Agreement; Assignment. This Agreement (i) constitutes the
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entire agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof and (ii) shall not
be assigned by operation of law or otherwise without the prior written consent
of the other party, provided that Parent may assign its rights and obligations
hereunder to any direct or indirect wholly-owned subsidiary of Parent, but no
such assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
6.2 Amendments. This Agreement may not be modified, amended, altered
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or supplemented except upon the execution and delivery of a written agreement
executed by all of the parties hereto.
6.3 Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, by mail (registered or certified mail,
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postage prepaid, return receipt requested) or by any courier service, such as
Federal Express, providing proof of delivery. All communications hereunder shall
be delivered to the respective parties at the following addresses:
To the Stockholder:
Xxxxx Value Limited
c/o Allen & Company Incorporated
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
To Parent:
Superior Services, Inc.
One Honey Creek Corporate Center
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, General Counsel
with a copy to:
Xxxxx & Xxxxxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
6.4 Specific Performance. Each of the parties hereto recognizes and
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acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereby agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
6.5 Descriptive Headings. The descriptive headings used herein are
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inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
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6.6 Severability. (a) Whenever possible, each provision or portion
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of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(b) If any term, covenant or condition of this Agreement shall cause
(i) the Securities and Exchange Commission to determine that the business
combination to be effected by the Merger Agreement does not qualify for pooling
of interests accounting treatment and/or (ii) the financial advisors of the
Company and Parent to withhold their respective opinions to the effect that the
business combination to be effected by the Merger Agreement qualifies for
pooling of interests accounting treatment, such provision shall be deemed
deleted from this Agreement and the remainder of this Agreement shall remain in
full force and effect.
6.7 No Third Party Beneficiaries. This Agreement is not intended to
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be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
6.8 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
6.9 Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, Parent and the Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
SUPERIOR SERVICES, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Chief Financial Officer
XXXXX VALUE LIMITED
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxx L.P.
Title: Manager
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