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EASTERN DIVESTITURE
ASSET SALE AGREEMENT
BY AND BETWEEN
STAR SERVICES GROUP, INC.
AND
WASTE MANAGEMENT, INC.
JUNE ___ 1999
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TABLE OF CONTENTS
Page
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ARTICLE I TRANSFER OF ASSETS.............................................1
1.1 Assets................................................................1
1.2 Excluded Assets.......................................................2
1.3 Purchase Price; Payment; Adjustment...................................2
1.4 Excluded Liabilities..................................................3
1.5 Time and Place of the Closing.........................................4
1.6 Procedure at the Closing..............................................4
1.7 Non-Assignment of Certain Contracts...................................4
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................5
2.1 Organization and Qualification........................................5
2.2 Authority.............................................................5
2.3 Consents and Approvals; No Violation..................................5
2.4 Intentionally Omitted]................................................6
2.5 Litigation............................................................6
2.6 Tax Matters...........................................................6
2.7 Compensation and Benefit Plans........................................6
2.8 Leases, Contracts and Agreements......................................7
2.9 Environmental Matters.................................................7
2.10 Title to Properties; Encumbrances.....................................7
2.11 Compliance With Laws and Defects in Permits...........................7
2.12 No Broker's or Finder's Fees..........................................7
2.13 Condition of the Assets...............................................7
2.14 No Other Representations..............................................8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PURCHASER................8
3.1 Organization, Existence and Good Standing.............................8
3.2 Authority.............................................................8
3.3 Consents and Approvals; No Violation..................................8
3.4 No Broker's or Finder's Fees..........................................9
3.5 Litigation............................................................9
3.6 Capabilities..........................................................9
3.7 Independent Investigation.............................................9
3.8 No Other Representations.............................................10
ARTICLE IV COVENANTS OF THE COMPANY AND THE PURCHASER....................10
4.1 Conduct of the Business by the Company...............................10
4.2 Purchaser's Representations and Warranties...........................10
4.3 Permit and License Issuance..........................................11
4.4 Access to Assets, Personnel, Books and Records.......................11
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4.5 Reasonable Best Efforts..............................................11
ARTICLE V CONDITIONS TO THE CLOSING.....................................12
5.1 Conditions to the Obligations of Each Party..........................12
5.2 Conditions to the Obligations of the Purchaser.......................12
5.3 Conditions to the Obligations of the Company.........................13
ARTICLE VI ADDITIONAL AGREEMENTS.........................................13
6.1 Bound by Final Judgment..............................................13
6.2 Further Assurances...................................................13
6.3 Non-Solicitation.....................................................13
6.4 Accounts Receivable..................................................14
6.5 Settlement...........................................................14
6.6 Xxxxxxxx.............................................................14
ARTICLE VII TERMINATION; AMENDMENT; WAIVER................................14
7.1 Termination..........................................................14
7.2 Effect of Termination................................................15
7.3 Extension; Waiver....................................................15
ARTICLE VIII REMEDIES......................................................15
8.1 Remedies for Breach of Representations, Warranties and Covenants.....15
8.2 Survival Exclusivity.................................................16
ARTICLE IX MISCELLANEOUS.................................................16
9.1 Amendment and Modification...........................................16
9.2 Waiver of Compliance; Consents.......................................16
9.3 Notices..............................................................17
9.4 Assignment...........................................................17
9.5. Governing Law........................................................18
9.6 Arbitration..........................................................18
9.7 Process..............................................................19
9.8 Counterparts.........................................................20
9.9 Interpretation.......................................................20
9.10 Entire Agreement.....................................................20
9.11 Waiver...............................................................20
9.12 Disclosure...........................................................20
9.13 Expenses.............................................................20
9.14 No Third Party Beneficiaries.........................................21
9.15 Severability.........................................................21
9.16 Time of Essence......................................................21
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EXHIBITS
Exhibit A Glossary
Exhibit B Allocation of Purchase Price
SCHEDULES
Schedule 1.1 Assets
Schedule 1.3(a) Assumed Liabilities
Schedule 2.3 Consents and Approvals
Schedule 2.9 Environmental Matters
Schedule 3.3 Consents and Approvals
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ASSET SALE AGREEMENT
TIES ASSET SALE AGREEMENT (this "Agreement") is entered into as of June
___, 1999 by and between Star Services Group, Inc., a Florida corporation (the
"Purchase"), and Waste Management, Inc., a Delaware corporation (the "Company").
For purposes of this Agreement and where the context requires, references to the
"Company" shall include the Company and its applicable subsidiaries.
RECITALS
WHEREAS, the Company is subject to that certain Final Judgment filed
December 31, 1998, with the United States District Court, Eastern District of
New York, Case No. 98 CV7168 (FB) (MDG) (the "Final Judgment"), pursuant to
which the Company is required to divest certain of its assets;
WHEREAS, in accordance with the terms of the Final Judgment the Company
agrees to sell to the Purchaser and the Purchaser agrees to purchase from the
Company, certain Assets (as defined below) of the Company consisting of certain
routes in Dade and Broward Counties, Florida, together with the trucks and
containers related thereto, upon the terms and conditions set forth herein;
WHEREAS, capitalized terms used but not otherwise defined herein shall
have the meanings ascribed to them in the Glossary attached as Exhibit A; and
NOW, THEREFORE, in consideration of the respective representations,
warranties and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
ARTICLE I
TRANSFER OF ASSETS
1.1 ASSETS. Subject to the terms and conditions set forth herein, at
the Closing (as defined below) the Company agrees to and will sell, transfer,
assign and deliver to the Purchaser, and the Purchaser agrees to and will
purchase from the Company, all of the Company's right, title and interest in and
to:
(a) the trucks and containers listed on Schedule 1.1. (the
"Operating Assets");
(b) the customer lists, customer contracts and equipment leases
listed on Schedule 1.1;
(c) the right but not the obligation to employ the Company's
employees; and
(d) all operating and billing data, files, documents and
records directly related to (a) and (b) above (the "Records");
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in each case solely to the extent such assets (i) directly relate to the
Business, and (ii) with respect to (a) and (b) above, are set forth on Schedule
1.1 (collectively, the "Assets").
1.2 EXCLUDED ASSETS. Anything to the contrary in Section 1.1
notwithstanding, the Assets shall exclude the following assets of the Company
(collectively, the "Excluded Assets");
(a) the cash consideration to be paid by the Purchaser and the
Company's other rights under this Agreement;
(b) any shares of capital stock of or owned by the Company or any
Affiliate;
(c) the corporate minute books and stock records of the Company or
any Affiliate;
(d) all cash and cash equivalents and investments, whether
short-term or long-term, of the Company or any Affiliate, including but
not limited to prepaid expenses, insurance policies, bank accounts,
certificates of deposit, treasury bills and securities;
(e) all receivables of the Company or any Affiliate, including,
without limitation, all trade and customer accounts receivable,
including but not limited to receivables arising from service, sales,
notes receivable and insurance proceeds receivable (regardless of
whether billed or invoiced prior to the Closing Date(s));
(f) all right, title and interest in and to any financial
responsibility, financial assurance or similar mechanisms required to
be maintained by owners or operators of routes and hauling operations
pursuant to Environmental Laws to assure among other things
performance;
(g) all real property and all title insurance policies and
commitments, deeds and surveys covering any real property; and
(h) all assets not expressly listed in Schedule 1.1.
1.3 PURCHASE PRICE; PAYMENT; ADJUSTMENT.
(a) As consideration for the Assets, the Purchaser agrees, subject
to the terms, conditions and limitations set forth in this Agreement:
(i) to pay to the Company in the manner specified below, the
total sum of $5,200,000 (the "Purchase Price"); and
(ii) to assume and discharge when lawfully due those
liabilities, contracts, commitments and other obligations of the
Company and its Affiliates set forth in Schedule l.3(a) (the
"Assumed Liabilities").
(b) The parties agree that the consideration for the Assets shall
be allocated as set forth on Exhibit B, which allocation shall be used
by the Company and the Purchaser
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as the basis for reporting asset values and other items for purposes
of all required federal, state and local tax returns (including any
tax returns required to be filed under Section 1060(b) of the Internal
Revenue Code of 1986, as amended, and the regulations promulgated
thereunder). The Company and the Purchaser shall not assert, in
connection with any audit or any other proceeding with respect to
federal, state and local taxes, any asset values or other items
inconsistent with the allocations agreed upon in this Section 1.3(b).
(c) The Company agrees that in the event the revenues (as
determined in accordance with GAAP) generated for the 31 day period
beginning with the day after Closing (the "Adjustment Period") by the
customer accounts sold by the Company to the Purchaser pursuant to this
Agreement (the "Actual Revenues") are less than $310,000 (the "Revenue
Threshold") then, subject to the terms of this Section 1.3(c), the
Company shall either (i) pay to the Purchaser an amount equal to (x)
the Revenue Threshold less the Actual Revenues (the difference being
the "Revenue Shortfall") multiplied by fifteen (15), or (ii) assign
additional customer contracts to the Purchaser with monthly revenues
equal to any Revenue Shortfall. The Purchaser agrees not to increase
prices for such customers, or give any indications that it intends to
increase prices, prior to the end of the Adjustment Period.
Notwithstanding the other provisions of this Section 1.3(c),
appropriate offsetting adjustments to the Revenue Shortfall shall be
made for business lost or decreased due to service or operation issues
or other matters within the control of the Purchaser. The Purchaser
shall provide written notice to the Company within three days after the
Purchaser has knowledge that any such business is lost or otherwise
decreased. The Company shall have the right to investigate the reasons
underlying any lost or decreased business and the Purchaser shall
cooperate with such investigation including but not limited by making
available all documents and records relating to such business and
permitting the Company to meet with such customers. The Purchaser shall
use all commercially reasonable efforts to retain all customers and
revenues sold by the Company to the Purchaser pursuant to this
Agreement.
1.4 EXCLUDED LIABILITIES. The Purchaser shall have no responsibility
whatsoever with respect to the following liabilities, contracts, commitments and
other obligations of the Company (the "Excluded Liability"):
(a) any obligation of the Company for federal, state or local
income tax liability (including interest and penalties) arising from
the operations of the Company up to the Time of Closing or arising out
of the sale by the Company of the Assets pursuant to this Agreement;
(b) any obligation of the Company for expenses incurred in
connection with the sale of the Assets pursuant to this Agreement; and
(c) any liability or obligation of the Company with respect to or
arising Out Of any employee benefit plan or any other plans or
arrangements for the benefit of any employees of the Company.
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1.5 TIME AND PLACE OF THE CLOSING. Subject to Section 7.1 below, the
Closing of the sale of the Assets (the "Closing") shall take place at the
offices of the Company at 10:00 A.M., local time, on or about June 30, 1999,
(the "Time of Closing"); provided, however, that if any of the conditions
precedent set forth in this Agreement have not been satisfied or waived by said
date, then the Closing shall take place on a subsequent date, mutually
determined by the Purchaser and the Company.
1.6 PROCEDURE AT THE CLOSING. At the Closing, the following actions
will be taken by the parties and the completion of each action shall be a
further condition to the Closing:
(a) the Company shall deliver to the Purchaser, in the form
specified herein or (absent such specification) as may be otherwise
reasonably satisfactory to the Purchaser, such bills of sale, contract
and leasehold assignments, receipts and other instruments, as shall be
sufficient to vest in the Purchaser good and indefeasible title to the
Assets, free and clear of all liens and encumbrances, except as
otherwise set forth herein;
(b) the Purchaser shall deliver to the Company the full amount
of the Purchase Price by wire transfer of immediately available funds;
and
(c) the Purchaser shall deliver to the Company, in such form as in
each case is reasonably satisfactory to the Company, instruments as
shall be sufficient to effect the assumption by the Purchaser of the
Assumed Liabilities.
1.7 NON-ASSIGNMENT OF CERTAIN CONTRACTS. Notwithstanding anything to
the contrary in this Agreement, to the extent that the assignment hereunder of
any Contract (as defined below) shall require the consent of any third party,
neither this Agreement nor any action taken pursuant to its provisions shall
constitute an assignment or an agreement to assign if such assignment or
attempted assignment would constitute a breach thereof or result in the loss or
diminution thereof; provided, however, that in each such case, the Company shall
use commercially reasonable efforts to obtain the consent with respect to
material Contracts of such other party to such assignment to the Purchaser. If
any Contract is not assigned, the Company shall reasonably cooperate with the
Purchaser to provide the Purchaser with the rights and benefits (subject to the
obligations) under such Contracts unless a customer shall object.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as otherwise disclosed in the Disclosure Schedules to this
Agreement, the Company hereby makes the representations and warranties set forth
in this Article 11 to the Purchaser.
2.1 ORGANIZATION AND QUALIFICATION.
(a) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
The Company has all requisite
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corporate power and authority to carry on its business as it is now
being conducted, and to own, lease and operate the Assets, and to
perform all its obligations under the agreements and instruments to
which it is a party or by which it is bound. The Company is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each state or other jurisdiction in which
the Assets owned, leased or operated by it or the nature of the
business conducted by it make such qualification necessary, except in
such jurisdictions where the failure to be duly qualified or in good
standing does not and would not result in a Material Adverse Effect.
(b) True, correct and complete copies of the Organizational
Documents of the Company, with all amendments thereto through the date
of this Agreement, have been made available by the Company to the
Purchaser.
2.2 AUTHORITY. The Company has full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. To the extent required under applicable law, the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized and approved by the
Company's board of directors and shareholders and no other corporate proceedings
on the part of the Company are necessary to authorize this Agreement or the
consummation of the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by the Company, and this Agreement
constitutes the legal, valid and binding agreement of the Company enforceable
against the Company in accordance with its terms except as may be limited by
bankruptcy, insolvency, reorganization or other laws affecting the enforcement
of creditors' rights generally, and except that enforceability of the
obligations of the Company under this Agreement may be subject to general
principles of equity.
2.3 CONSENTS AND APPROVALS; NO VIOLATION. Except as provided in the
Final Judgment, no filing or registration with, and no permit, authorization,
consent or approval of, any party, including any Governmental Authority, is
necessary for the consummation of the transactions contemplated by this
Agreement. The Purchaser is advised, however, that the Permits are required to
operate certain of the Assets, and the Permits currently held by the Company may
not be assignable to the Purchaser and any Permits obtained by the Purchaser to
operate and own the Assets may be on terms different or even less favorable than
those held by the Company. Except as set forth in the Final Judgment neither the
execution and delivery of this Agreement, the consummation of the transactions
contemplated hereby, nor the complian6e by the Company with any of the
provisions hereof will, as of the Time of Closing, (i) conflict with or result
in any breach of any provision of the Organizational Documents of the Company,
(ii) 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 note, contract, agreement, commitment, bond, mortgage,
indenture, license, lease, pledge agreement or other instrument or obligation to
which the Company is a party or by which the Company or any of its properties or
assets may be bound, (iii) give rise to any lien, charge or other encumbrance on
any of the Assets, or (iv) violate any law, regulation, judgment, order, writ,
injunction or decree applicable to the
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Company or any of the Assets; except in each case for breaches, violations,
defaults, liens, charges or encumbrances as do not and would not result in a
Material Adverse Effect.
2.4 [INTENTIONALLY OMITTED]
2.5 LITIGATION. Except for the Final Judgment, and for those Orders,
proposed Orders and Proceedings that do not and would not result in a Material
Adverse Effect, (i) the Company is not subject to any Order or proposed Order in
which relief is sought involving, affecting, or relating to the ownership,
operation or use of the Assets, or which would prevent, delay, or make illegal
the transactions contemplated by this Agreement, and (ii) there are no
Proceedings pending or, to the Knowledge of the Company, threatened against,
involving, affecting, or relating to the Assets or the Company's ownership,
operation or use of the Assets.
2.6 TAX MATTERS. All federal, state, county and local income, payroll,
sales, use, property, franchise and other taxes, (excluding any transfer,
documentary stamp, or other taxes payable by a party hereto at Closing pursuant
to this Agreement) including interest and penalties thereon, due from the
Company for all periods prior to the Time of Closing with respect to the Assets
(collectively, "Taxes") have been fully paid. No deficiency or adjustment in
respect of any Tax that was assessed against the Company that might result in an
Encumbrance on any of the Assets remains unpaid and no claim, assessment or
audit is pending or, to the Knowledge of the Company, threatened with respect to
any Taxes whose assessment might result in an Encumbrance on any of the Assets.
2.7 COMPENSATION AND BENEFIT PLANS. The parties hereby agree that the
Purchaser is not assuming any of the Benefit Plans (as defined below) nor shall
it be deemed a successor employer with respect to any of the Benefit Plans. The
term "Benefit Plans" shall mean collectively any (i) "cafeteria plan" as
described in Section 125 of Internal Revenue Code of 1986, (ii) "employee
welfare benefit plans", as defined in Section 3 of the Employee Retirement
Income Security Act of 1974, as amended, ("ERISA"), or (iii) "employee pension
benefit plan" as defined in Section 3(2) of ERISA whether insured or otherwise.
2.8 Leases, Contracts and Agreements. The Company has made available to
the Purchaser true and correct copies of all leases, subleases, licenses,
commitments,, contracts and agreements (whether written or oral) listed on
Schedule 1.1 (the "Contracts"). All of the Contracts are, to the Company's
Knowledge, in full force and effect. In each case to the Company's Knowledge,
all rent and other payments by the Company under the Contracts are current,
there are no existing defaults by the Company under the Contracts, and no
termination, condition or other event has occurred which (whether with or
without notice, lapse of time or the happening or occurrence of any other event)
would constitute a default or a basis for force majeure or other claim of
excusable delay or non-performance thereunder.
2.9 ENVIRONMENTAL MATTERS. To the Knowledge of the Company, as of the
date of this Agreement:
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(a) the Company has not received written notice from any
Governmental Authority or unaffiliated third party alleging a material
violation of applicable Environmental Laws; and
(b) the Assets and the operations of the Company prior to Closing
are not in material violation with the requirements of any applicable
Environmental Laws that would give rise to a Material Adverse Effect.
2.10 TITLE TO PROPERTIES; ENCUMBRANCES. The Company has good and
indefeasible title to all of the Assets, except for those Assets disposed of for
fair market value in the ordinary course of business in accordance with this
Agreement. To the Knowledge of the Company, all of the Assets are free and clear
of all Encumbrances. The trucks and containers listed on Schedule 1.1 consist of
the trucks and containers used by the Company to service the Contracts.
2.11 COMPLIANCE WITH LAWS AND DEFECTS IN PERMITS. To the Knowledge of
the Company, the Company is in compliance in all material respects with all
laws, rules and regulations of Governmental Authorities applicable to the Assets
(other than Environmental Laws that are governed by the representations set
forth in Section 2.9).
2.12 NO BROKER'S OR FINDER'S FEES. No agent, broker, investment banker,
person or firm has acted directly or indirectly on behalf of the Company in
connection with this Agreement or the transaction contemplated herein, and no
such person or entity is or will be entitled to any broker's or finder's fee or
any other commission or similar fee or expense, directly or indirectly, in
connection with this Agreement or the transaction contemplated herein.
2.13 CONDITION OF THE ASSETS. The Assets will be operational at the
Time of Closing.
2.14 NO OTHER REPRESENTATIONS. The Company is not making any
representations or warranties, expressed or implied, of any nature whatsoever
except as specifically set forth in this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby makes the representations and warranties set forth
in this Article III to the Company.
3.1 ORGANIZATION, EXISTENCE AND GOOD STANDING. The Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation and has the corporate power to own its
properties and carry on its business as it is now being conducted and to own,
lease and operate the Assets, and to perform all its obligations under the
agreements and instruments to which it is a party or by which it is bound. The
Purchaser is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each state or other jurisdiction in which the
assets owned, leased or operated by it or the nature of the business conducted
by it make such qualification necessary, except in such jurisdictions where the
failure to be duly qualified or in good standing does not and would not
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result in a material adverse effect on the Purchaser or its ability to
consummate the transactions contemplated herein.
3.2 AUTHORITY. The Purchaser has full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. `The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized and approved by the board of directors of the Purchaser and no other
corporate proceedings on the part of the Purchaser are necessary to authorize
this Agreement or the consummation of the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by the Purchaser and
constitutes the legal, valid and binding agreement of the Purchaser enforceable
against the Purchaser in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization or other laws affecting the enforcement
of creditors' rights generally, and except that enforceability of the
obligations of the Purchaser under this Agreement may be subject to general
principles of equity.
3.3 CONSENTS AND APPROVALS; NO VIOLATION. Except as set forth on
Schedule or as provided in the Final Judgment no filing or registration with,
and no permit authorization, consent or approval of, any party, including any
Governmental Authority, is necessary for the consummation of the transactions
contemplated by this Agreement. Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby, nor the
compliance by the Purchaser with any of the provisions hereof will, as of the
Time of Closing, (i) conflict with or result in any breach of any provision of
the Organizational Documents of the Purchaser, (ii) 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 note, contract,
agreement, commitment, bond, mortgage, indenture, license, lease, pledge
agreement or other instrument or obligation to which the Purchaser is a party or
by which the Purchaser or any of its properties or assets may be bound, or (iii)
violate any law, regulation, judgment, order, writ, injunction or decree
applicable to the Purchaser or any of the Assets; except in each case for
breaches, violations and defaults as do not and would not result in a material
adverse effect on the Purchaser or the Purchaser's ability to consummate the
transactions contemplated herein.
3.4 NO BROKER'S OR FINDER'S FEES. No agent, broker, investment banker,
person or firm has acted directly or indirectly on behalf of the Purchaser in
connection with this Agreement or the transaction contemplated herein, and no
such person or entity is or will be entitled to any broker's or finder's fee or
any other commission or similar fee or expense, directly or indirectly, in
connection with this Agreement or the transaction contemplated herein.
3.5 LITIGATION. Except for the Final Judgment, and for those Orders,
proposed Orders and Proceedings that do not and would not result in a material
adverse effect on the Purchaser or its ability to consummate the transactions
contemplated herein, (i) the Purchaser is not subject to any Order or proposed
Order in which relief is sought involving, affecting, or relating to the
ownership, operation, or use of the Assets, or which would prevent, delay, or
make illegal the transactions contemplated by this Agreement, (ii) there are no
Proceedings pending or, to the
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knowledge of the Purchaser, threatened against, involving, affecting, or
relating to the Purchaser or the Purchaser's ownership, operation, or use of the
Assets.
3.6 CAPABILITIES. The Purchaser can and will use the Assets as part of
a viable, ongoing business or businesses engaged in waste hauling. The Purchaser
has (i) the capability and intent of competing effectively in the waste hauling
business in the relevant markets where the Assets are located, and (ii) the
managerial, operational and financial capability to complete the transactions
contemplated herein in accordance with this Agreement and to compete effectively
in the waste hauling business in the relevant markets where the Assets are
located.
3.7 INDEPENDENT INVESTIGATION. The Purchaser has conducted its own
independent investigation of the Assets. The Purchaser acknowledges that it has
had access to the Company's and its Affiliates' personnel and to any and all
environmental, zoning and other permit documents and information and has
inspected the Assets and any and all financial, operational and other documents
and information that the Purchase has requested or otherwise determined is
necessary as part of the Purchaser's due diligence review of the Assets and the
Business. The Purchaser has been provided all information and documentation it
has requested and has received answers to all questions asked of the Company's
and its Affiliates' personnel. The Purchaser acknowledges that, except as
otherwise expressly set forth herein, THE ASSETS ARE CONVEYED "AS IS, WHERE IS"
AND "WITH ALL FAULTS", AND THE COMPANY HAS NOT MADE, AND THE COMPANY HEREBY
EXPRESSLY DISCLAIMS AND NEGATES, ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, OF ANY KIND OR NATURE WHATSOEVER, RELATING TO THE ASSETS (INCLUDING BUT
NOT LIMITED TO, ANY IMPLIED OR EXPRESSED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE). THE PURCHASER ACKNOWLEDGES THAT ENVIRONMENTAL PERMITS
ARE REQUIRED TO OWN AND OPERATE CERTAIN OF THE ASSETS. THE PURCHASER ASSUMES ALL
RISK AND LIABILITY ASSOCIATED WITH OBTAINMENT OF ENVIRONMENTAL PERMITS NECESSARY
TO OPERATE THE ASSETS. IF ANY ENVIRONMENTAL PERMITS ARE ISSUED TO THE PURCHASER,
THE PURCHASER UNDERSTANDS AND ACKNOWLEDGES THAT THEY MAY CONTAIN DIFFERENT OR
LESS FAVORABLE TERMS THAN THOSE ENVIRONMENTAL PERMITS CURRENTLY HELD BY THE
COMPANY. The Purchaser shall execute and deliver to the Company at Closing a
certificate and agreement of the Purchaser repeating and confirming the
foregoing as of the Time of Closing.
3.8 NO OTHER REPRESENTATIONS. The Purchaser is not making any
representations or warranties, expressed or implied, of any nature whatsoever
except as specifically set forth in this Agreement.
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ARTICLE IV
COVENANTS OF THE COMPANY AND THE PURCHASER
4.1 CONDUCT OF THE BUSINESS BY THE COMPANY. From the date hereof until
the Time of Closing, except as provided for in, or contemplated by, this
Agreement, the Company covenants and agrees that it will:
(a) operate the Assets and the Business in the ordinary and usual
course in all material respects in accordance with past practices;
(b) not (i) sell, transfer, or otherwise dispose of any of the
Assets, except in the ordinary course of business and consistent with
past practices, (ii) create or permit to exist any new material lien on
the Assets, (iii) enter into any material joint venture, partnership,
or other similar arrangement or form any other new material arrangement
relating to the Assets, or (iv) except in the ordinary course of
business and consistent with past practices, enter into any other
material agreement related to the Assets; and
(c) not take any action that would make any representation and
warranty of the Company hereunder inaccurate in any material respect
at, or as of the time prior to, the Time of Closing.
4.2 PURCHASER'S REPRESENTATIONS AND WARRANTIES. From the date hereof
until the Time of Closing, except AS provided for in, or contemplated by, this
Agreement, or, except as consented to or approved by the Company in writing, the
Purchaser covenants and agrees that it will and will cause each of its
Subsidiaries not to take any action that would make any representation and
warranty of the Purchaser hereunder inaccurate in any material respect at, or as
of any time prior to, the Time of Closing.
4.3 PERMIT AND LICENSE ISSUANCE. The Company will cooperate (but shall
not be required to expend any sum of money), and will cause its Affiliates to
cooperate (but shall not be required to expend any sum of money), with the
Purchaser as necessary to facilitate the issuance of any permits and licenses
necessary for the Purchaser to operate the Assets; provided, however, the
Purchaser shall use its best efforts to obtain the issuance of such new permits
and licenses as expeditiously as possible.
4.4 ACCESS TO ASSETS, PERSONNEL, BOOKS AND RECORDS. The Company agrees
that at reasonable times prior to Closing, the Purchaser (including any of the
Purchaser's agents, representatives, contractors, or employees) may (i) enter
upon the Company's premises and make, at the Purchaser's sole cost, risk, and
expense, any inspections of the Assets which the Purchaser may desire, and (ii)
discuss with the Company's officers, agents and representatives, and review the
Company's contracts, books and records concerning, the Company's premises and
the Assets. The Purchaser shall not cause or permit damage to the Company's
premises or the Assets. Upon termination of this Agreement, for any reason
whatsoever, the Purchaser shall cause the Company's premises and the Assets to
be restored to their condition existing prior to any of the Purchaser's
(including the Purchaser's agents', contractors', representatives' and
employees') activities. This obligation shall survive the termination of this
Agreement
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notwithstanding anything to the contrary herein. THE PURCHASER AGREES TO INDENMY
AND HOLD THE COMPANY AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL
LIABILITIES, CLAIMS, DEMANDS, SUITS, JUDGMENTS, OR DAMAGES ASSERTED AGAINST THE
COMPANY OR ANY OF ITS AFFILIATES FOR PERSONAL INJURY, DEATH, OR LOSS OF OR
DAMAGE TO PROPERTY AND TO PAY ALL COSTS AND EXPENSES (INCLUDING REASONABLE
ATTORNEY'S FEES) WHICH THE COMPANY OR ANY OF ITS AFFILIATES MAY SUSTAIN P--'4-LM
DUE TO THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COMTANY) ARISING OUT OF
OR RESULTING FROM ANY ACTS OR OMISSIONS OF THE PURCHASER OR ANY OF THE
PURCHASER'S AGENTS, CONTRACTORS, REPRESENTATIVES OR EMPLOYEES IN CONNECTION WITH
ANY SUCH INSPECTIONS, TESTS, SURVEYS, AND STUDIES PRIOR TO THE CLOSING;
REGARDLESS OF WHETHER SUCH INJURIES, DEATH, LOSSES OR DAMAGES ARE CAUSED IN PART
BY THE NEGLIGENCE OF THE COMPANY OR ANY OF ITS AFFILIATES, BUT SUCH INDEMNITY
PROVIDED HEREIN SHALL NOT BE APPLICABLE TO ANY OCCURRENCE RESULTING FROM THE
SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE COMPANY OR ANY OF ITS AFFILIATES.
4.5 Reasonable Best Efforts. The Company and the Purchaser will use
their reasonable best efforts to obtain the satisfaction of the conditions to
Closing set forth in this Agreement and to cooperate with and take such actions
reasonably requested by all Governmental Authorities with respect to and in
connection with any review contemplated by the Final Judgment.
ARTICLE V
CONDITIONS TO THE CLOSING
5.1 CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The obligations of the
Company and Purchaser to consummate the transactions contemplated hereby are
subject to the satisfaction of the following conditions:
(a) no provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation
of the transactions contemplated hereby;
(b) the Purchaser shall have received all permits and licenses
listed on Schedule 3.3; and
(c) there shall have been received all consents and approvals with
respect to the transactions contemplated hereby as required by the
Final Judgment.
5.2 CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER. The obligations of
the Purchaser to consummate the transactions contemplated hereby are subject to
the satisfaction of the following further conditions:
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(a) The representations and warranties of the Company contained in
Article II and in any document delivered in connection herewith shall,
as of the Time of Closing, be true and correct in all material
respects.
(b) The covenants and agreements of the Company contained in this
Agreement to be performed on or before the Closing in accordance with
this Agreement shall have been duly performed in all material
respects.
(c) The Purchaser shall have received at the Time of Closing a
certificate(s), dated the day of the Closing and validly executed by or
on behalf of the Company, to the effect that the conditions set forth
in clauses (a) and (b) above have been satisfied.
(d) The Purchaser shall have competed its due diligence review of
the Assets to Purchaser's reasonable satisfaction; provided, however,
that on June 29, 1999 this condition shall cease to be a condition to
the Purchaser's obligations to consummate the transactions
contemplated hereby.
5.3 CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The obligations of
the Company to consummate the transactions contemplated hereby are subject to
the satisfaction of the following further conditions:
(a) The representations and warranties of the Purchaser contained
in Article III and any document delivered in connection herewith
shall, as of the Time of Closing, be true and correct in all material
respects, except for representations and warranties that speak as of a
specified date, which need only be true and correct in all material
respects as of the specified date.
(b) The covenants and agreements of the Purchaser contained in
this Agreement to be performed on or before the Closing in accordance
with this Agreement shall have been duly performed in all material
respects.
(c) The Company shall have received at the Closing a
certificate(s), dated the day of the Closing and validly-executed by or
on behalf of the Purchaser, to the effect that the conditions set forth
in clauses (a) and (b) above have been satisfied.
(d) The parties shall have entered into a disposal agreement
regarding the waste generated by the Contracts and the routes to be
assigned pursuant to this Agreement in form satisfactory to the
Company.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 BOUND BY FINAL JUDGMENT. The Company and the Purchaser hereby agree
to be bound by the provisions of the Final Judgment with respect to the
transactions contemplated by this Agreement.
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6.2 FURTHER ASSURANCES. The Company and the Purchaser shall execute and
deliver to the other, at the Closing or thereafter, any other instrument not
otherwise inconsistent with this Agreement which may be requested by the other
and which is reasonably appropriate to perfect or evidence any of the sales,
assignments, transfers or conveyances contemplated by this Agreement or to
transfer any Assets or to obtain any consents or licenses necessary for the
Purchaser to operate the Assets in the manner operated by the Company prior to
Closing, but in no event shall the Company be obligated to expend any sum of
money to effect any transfer or obtain any consent.
6.3 NON-SOLICITATION. The Company and its Affiliates shall not directly
or indirectly solicit for a period of one (1) year after Closing any customer
with respect to business under the Contracts assigned to the Purchaser pursuant
to Section 1.1(b) of this Agreement. The Company agrees and acknowledges that
the restriction contained in this Section 6.3 is reasonable in scope and lie
Company agrees and acknowledged duration and is necessary to protect the
Purchaser. The Company agrees and acknowledges that any breach of this Section
6.3 may cause irreparable injury to the Purchaser and upon any breach or
threatened breach of any provision of this Section 6.3, the Purchaser shall be
entitled to injunctive relief, specific performance or equitable relief-,
provided, however, that this shall in no way limit any other remedies which the
Purchaser may have as a result of such breach or relating to or under such
customer contracts, including the right to seek monetary damages. The parties
agree to mediate in good faith any disputes under this Section 6.3 prior to
pursuing other available remedies. The Company agrees to use commercially
reasonable efforts to enforce the Company's rights with respect to
noncompetition covenants granted by sellers of the Assets to the Company if
requested by the Purchaser; provided, however, that the Purchaser agrees to
assume and pay all costs, expenses and liabilities incurred by the Company and
its Affiliates relating to such enforcement.
6.4 ACCOUNTS RECEIVABLE. From and after the Time of Closing, the
Company and the Purchaser each agree to transfer or deliver, promptly after the
receipt thereof, any cash received as payment of accounts receivable due to the
other party for services rendered and sales occurring prior to the Closing, in
the case of the Company, and subsequent to the Closing, in the case of the
Purchaser.
6.5 SETTLEMENT. The purchaser agrees to (i) use its best efforts to
acquire all rights and claims, if any, of Atlas Environmental against Sanifill,
Inc. and other Affiliates of the Company in connection with the Purchaser's
contemplated acquisition of Atlas Environmental (the "Atlas Claims") and (ii)
grant to the Company, Sanifill, Inc. and the other Affiliates of the Company a
fall and final release, settlement and waiver of all such Atlas Claims in form
satisfactory to the Company, Sanifill, Inc. and the other Affiliates of the
Company in their sole discretion.
6.6 XXXXXXXX. At the request of the Purchaser, the Company shall
prepare and perform all customer xxxxxxxx for a period of sixty (60) days after
Closing. The Company shall provide the Purchaser with a tape of its customer
database relating to the Assets following the Company's final billing.
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ARTICLE VII
TERMINATION; AMENDMENT; WAIVER
7.1 TERMINATION. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Time of Closing:
(a) by mutual written consent executed by the parties and duly
authorized by the board of directors of the Company and board of
directors of the Purchaser;
(b) by the Purchaser if there is an inaccuracy or breach of any
representation, warranty or covenant of the Company set forth in this
Agreement which breach has not been cured within fifteen (15) days
following receipt by the Company of written notice of such breach and
which breach results in or can reasonably be anticipated to result in
a Material Adverse Effect on the Assets or a material adverse effect
on the ability of the Company to consummate the transaction
contemplated herein;
(c) by the Company if there is an inaccuracy or breach of any
representation, warranty or covenant of the Purchaser set forth in this
Agreement which breach has not been cured within fifteen (15) days
following receipt by the Purchaser of written notice of such breach and
which breach results in or can reasonably be anticipated to result in a
material adverse effect on the ability of the Purchaser to consummate
the transactions contemplated herein;
(d) by the Purchaser or the Company if the Closing shall not
have occurred, other than through the failure of any such party to
fulfill its obligations hereunder, on or before July 31, 1999 or such
later date as may be agreed to in writing by the Purchaser and the
Company; provided, however, that such date may be extended for a period
not to exceed sixty (60) days with respect to specific Assets to the
extent necessary to obtain any required governmental approvals; or
(e) by the Purchaser or the Company if any Governmental Authority
shall have enacted, issued, promulgated, enforced or entered any law,
regulation or order (whether temporary, preliminary or permanent) that
is in effect and has the effect of making the consummation of the
transactions contemplated hereby illegal or otherwise prohibiting
consummation of such transactions.
7.2 EFFECT OF TERMINATION. In the event of the termination and
abandonment of this Agreement pursuant to Section 1.1 hereof, this Agreement
shall thereafter be of no further force and effect, without any liability on the
part of any party or its directors, officers or shareholders; provided, however,
that nothing contained in this Section 7.2 shall relieve any party from
liability for any breach or violation of this Agreement, subject to Article VIII
hereof.
7.3 EXTENSION; WAIVER. At any time prior to the Time of Closing, the
parties may (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, certificate
or writing delivered pursuant hereto, or (iii) waive compliance with any
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of the agreements or conditions contained herein. Any agreement on the part of
any party to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party.
ARTICLE VIII
REMEDIES
8.1 REMEDIES FOR BREACH OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Upon execution of this Agreement through and including the
Closing, the exclusive remedy of the Purchaser for any material
inaccuracy or breach of any representation this Agreement by the
Company shall be termination of this Agreement by the Purchaser in
accordance with and subject to Article VII. This Article VIII shall not
apply to any fraudulent misrepresentation by the Company or to any
material breach of any covenant in this Agreement by the Company.
(b) In addition to and without in any way limiting the rights and
remedies otherwise available to the Company, in the event of any
material inaccuracy or breach of any representation, warranty,
covenant or agreement of the Purchaser set forth in this Agreement,
the Company may recover any and all Damages incurred by the Company.
8.2 SURVIVAL EXCLUSIVITY. The representations and warranties contained
in this Agreement and the certificates and other documents delivered pursuant to
this Agreement shall terminate at Closing. The covenants and agreements
contained in this Agreement and the certificates and other documents delivered
pursuant to this Agreement shall survive Closing to the extent applicable
including but not limited to the agreements set forth in Section 1.3(c). Such
representations, warranties, covenants and agreements contained herein are
exclusive, and the parties hereto confirm that they have not relied upon any
other representations, warranties, covenants and agreements as an inducement to
enter into this Agreement or otherwise. The Purchaser hereby waives, from and
after Closing, to the fullest extent permitted by law, any and all rights,
claims, actions or causes of action it may have against the Company and its
Affiliates relating to the subject matter of this Agreement and the certificates
and other documents delivered pursuant to this Agreement, other than claims of
fraud and rights, claims, actions and causes of actions arising out of a breach
of any covenant or agreement of the Company which survives Closing. Further, the
Purchaser waives, releases and covenants not to xxx the Company for any Damages
of any kind or character, arising under any Environmental Law (statutory,
regulatory, common law, or otherwise) relating to any Damage, including without
limitation, strict liability, incurred or allegedly incurred by the Purchaser.
In addition, the Purchaser covenants and agrees that it shall not file any
claims with any insurer of the Company for recovery under any insurance policies
covering the Company and does hereby waive, irrevocably and forever and to the
fullest extent permitted by law, any lights the Purchaser may have to recover
under such insurance policies.
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ARTICLE IX
MISCELLANEOUS
9.1 AMENDMENT AND MODIFICATION. Except as provided otherwise in this
Agreement, this Agreement may be amended, modified or supplemented only by
written agreement of the parties hereto.
9.2 WAIVER OF COMPLIANCE; CONSENTS. Any failure of the Purchaser on the
one hand, or the Company, on the other hand, to comply with any obligation,
covenant, agreement or condition herein may be waived by the Company or the
Purchaser, respectively, only by a written instrument signed by the party
granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by or on behalf of
any party hereto, such consent shall be given in writing in a manner consistent
with the requirements for a waiver of compliance as set forth in this Section.
9.3 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered in person, by telecopy, by an
overnight express delivery service Federal Express) or by registered or
certified mail (postage prepaid, return receipt requested) to the other party at
the following addresses (or at such other address for a party as shall be
specified by like notice; provided that notices of a change of address shall be
effective only upon receipt thereof):
(a) if to the Company, to:
Waste Management, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxxx
with a required copy to:
Xxxxxx X. Xxxxx
Xxxxx Xxxxxxx & Xxxx LLP
0000 Xxxxx Xxxxx
000 Xxxxxx
Xxxxxxx, Xxxxx 00000
(b) if to the Purchaser, to:
Star Services Group, Inc.
0000 Xxxxx Xxxxxxxxx Xx.
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxx
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with a required copy to:
Xxxxx & Xxxxxxxx
00 Xxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx
9.4 ASSIGNMENT. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective executors, administrators, heirs, successors and permitted assigns,
but neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto without the prior
written consent of the other parties; provided, however, that the Purchaser may
assign, in whole or in part, its rights and obligations under this Agreement to
any of its Affiliates, but such assignment shall not relieve the Purchaser of
any of its duties, obligations or liabilities under this Agreement.
9.5. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Texas (regardless of the laws that might otherwise govern under
applicable Texas principles of conflicts of law) as to all matters, including
but not limited to, matters of validity, construction, effect, performance and
remedies.
9.6 ARBITRATION.
(a) Any claim, action, dispute or controversy of any kind
arising out of or relating to this Agreement or concerning any aspect
of performance by any party under the terms of this Agreement
("Dispute") shall be resolved by mandatory and binding arbitration
administered by the American Arbitration Association (the "AAA")
pursuant to the Federal Arbitration Act (Title 9 of the United States
Code) in accordance with this Agreement and the then-applicable
Commercial Arbitration Rules of the AAA. The parties acknowledge and
agree that the transactions evidenced and contemplated hereby involve
"commerce" as contemplated in Section 2 of the Federal Arbitration Act.
If Title 9 of the United States Code is inapplicable to any such
Dispute for any reason, such arbitration shall be conducted in
accordance with the laws of the State of Texas, this Agreement and the
then-applicable Commercial Arbitration Rules of the AAA. To the extent
that any inconsistency exists between this Agreement and the foregoing
statutes or rules, this Agreement shall control. Judgment upon the
award rendered by the arbitrators acting pursuant to this Agreement may
be entered in, and enforced by, any Court having jurisdiction;
provided, however, that the arbitrators shall not amend, supplement or
reform in any manner any of the rights or obligations of any party
hereunder or the enforceability of any of the terms of this Agreement.
Any arbitration proceedings under this Agreement shall be conducted in
Houston, Texas.
(b) Upon the request by written notice delivered in accordance
with Section 9.3 of the Agreement, whether made before or after the
institution of any legal proceeding, but prior to the expiration of the
statutory time period within which any party
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must respond under receipt of valid service of process in order to
avoid a default judgment any Dispute shall be resolved by mandatory
and binding arbitration in accordance with the terms of this
Agreement. Within ten (10) days of a party's receipt of such notice,
each party shall submit the name of a qualified arbitrator. The two
named arbitrators shall agree on a third arbitrator. If a replacement
arbitrator is necessary for any reason, such replacement arbitrator
shall be appointed by the AAA.
(c) Any party to this Agreement may bring as summary proceedings
(including, without limitation, a plea in abatement or motion to stay
further proceedings) an action in Court to compel arbitration of any
Dispute in accordance with this Agreement.
(d) All statutes of limitation that would otherwise be applicable
shall apply to any arbitration proceeding. Any attorney-client
privilege and other- protection against disclosure of privileged or
confidential information including, without limitation, any protection
afforded the work-product of any attorney, that could otherwise be
claimed by any party shall be available to, and may be claimed by, any
such party in any arbitration proceeding. No party waives any attorney
client privilege or any other protection against disclosure of
privileged or confidential information by reason of anything contained
in, or done pursuant to, the arbitration provisions of this Agreement.
Each party agrees to keep all Disputes and arbitration proceedings
strictly confidential, except for disclosure of information to the
parties' legal counsel or auditors or those required by applicable
law.
(e) The arbitration shall be conducted and concluded as soon
as reasonably practicable, based on a schedule established by the
arbitrators. Any arbitration award shall be based on and accompanied by
findings of fact and conclusions of law, shall be conclusive as to the
facts so found and shall be confirmable by any Court having
jurisdiction over the Dispute as to whether such award correctly
applied applicable law.
(f) Each party shall bear its own expenses, including, without
limitation, expenses of counsel incident to any arbitration and the
costs of its selected arbitrator. The expenses of the third arbitrator
and the AAA shall be borne by the parties. The arbitrators shall have
the power and authority to award expenses to the prevailing party if
the arbitrators elect to do so.
(g) In order for an arbitration award to be conclusive, binding
and enforceable under this Agreement, (i) the arbitration award must
be in accordance with the terms and provisions of this Agreement, and
(ii) the arbitration must follow the procedures set forth in this
Agreement.
(h) Each of the parties hereto specifically agrees that it has
a duty to read this Agreement and agrees that it is charged with notice
and knowledge of the terms of this Agreement, that it has in fact read
the Agreement and is fully informed and has full notice and knowledge
of the terms, conditions and effect of this Agreement, that it has been
represented by independent legal counsel of its choice throughout the
negotiations prior to its execution of this Agreement and has received
the advice of its attorney in entering
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into this Agreement and it recognizes that certain of the terms of
this Agreement result in one party assuming the liability inherent in
some aspects of the transaction and relieving the other party of its
responsibility for such liability. Each party hereto agrees and
covenants that it will not contest the validity or enforceability of
any indemnity or exculpatory provision of this Agreement on the basis
that the party had no notice or knowledge of such provisions or that
the provision is not "conspicuous."
9.7 PROCESS. Any process against the Purchaser or the Company in, or
in connection with, any suit, action or proceeding arising out of or relating to
this Agreement or any of the transactions contemplated by this Agreement may be
served personally or by certified mail at the address set forth in Section 9.3
with a required copy by certified mail to the last known address of the counsel
of the Purchaser or the Company, as the case may be, with the same effect as
though served on it personally.
9.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.9 INTERPRETATION. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement.
9.10 ENTIRE AGREEMENT. This Agreement, including the exhibits hereto,
and the instruments and schedules referred to herein, embody the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, representations,
warranties, covenants, or undertakings, other than those expressly set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
9.11 WAIVER. A provision of this Agreement may be waived only by a
written instrument executed by or on behalf of the party waiving compliance. The
failure of any party at any time or times to require performance of any
provision hereof shall in no manner affect the right at a later time to enforce
the same. No waiver by any party of any condition, or of any breach of any term,
covenant, representation or warranty contained in this Agreement in any one or
more instances, shall be construed to be a waiver of an other condition or of
any other breach of the same or any other term, covenant, representation or
warranty.
9.12 DISCLOSURE. The parties hereto shall not, prior to the Closing,
make any public disclosure of the transactions contemplated hereby or in
connection herewith without the written consent of the other party, which will
not be unreasonably withheld, except (i) as required by law or the rules of the
New York Stock Exchange, (ii) by the Company to other bidders on the Assets of
information relating to the Assets but not the terms of this Agreement and (iii)
by the parties to such Governmental Authorities and other third parties for the
purpose of obtaining any necessary consents and approvals and satisfying any
other conditions to Closing.
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9.13 EXPENSES. Except as otherwise provided in this Agreement, the
Purchaser shall pay all expenses incurred by the Purchaser in connection with
entering into and carrying out its obligations pursuant to this Agreement,
including all its attorneys' fees, and the Company shall pay all expenses
incurred by the Company in connection with entering into and carrying out its
obligations pursuant to this Agreement, including all its attorneys' fees.
9.14 NO THIRD PARTY BENEFICIARIES. No person or entity other than the
Company and the Purchaser and their respective executors, administrators, heirs,
successors and permitted have or be construed to have any legal or equitable
right, remedy or claim under or in respect of or by virtue of any provision of
this Agreement or in reliance hereon.
9.15 SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law. If any provision of this Agreement shall be invalid, illegal or
unenforceable in any respect under any applicable law, the validity, legality
and enforceability of the remaining provisions hereof shall not be affected or
impaired thereby.
9.16 TIME OF ESSENCE. With regard to all time periods set forth or
referred to in this Agreement, time is of the essence.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf as of the date first above written.
STAR SERVICES GROUP, INC.
By: Xxxxxxx X. Xxxxxxx
----------------------------------
Title: President
--------------------------------
WASTE MANAGEMENT, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
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EXHIBIT A
GLOSSARY
For the purposes of this Agreement, the following terms shall have the
meanings specified or referred to below when capitalized (or if not capitalized,
unless the context clearly requires otherwise) when used in this Agreement.
"Affiliate" means, with respect to a specified Person, (a) any Entity
of which such Person is an executive officer, director, partner, trustee or
other fiduciary or is directly or indirectly the Beneficial Owner of 10% or more
of any class of equity security thereof or other financial interest therein; (b)
if such Person is an individual, any relative or spouse of such individual, or
any relative of such spouse (such relative being related to the individual in
question within the second degree) and any Entity of which any such relative,
spouse, or relative of spouse is an executive officer, director, partner,
trustee or other fiduciary or is directly or indirectly the Beneficial Owner of
10% or more of any class of equity security thereof or other financial interest
therein; (c) if such Person is an Entity, any director, executive officer,
partner, trustee or other fiduciary or any direct or indirect Beneficial Owner
of 10% or more of any class of equity security of, or other financial interest
in, such Entity; or (d) any Person that directly, or indirectly through one or
more intermediaries, controls, is controlled by, or is under common control with
the Person specified. For purposes of this definition, "executive officer" means
the president any vice president in charge of a principal business unit,
division or function such as sales, administration, research and development, or
finance, and any other officer, employee or other Person who performs a policy
making function or has the same duties as those of a president or vice
president. For purposes of this definition, "control" (including "controlling",
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. When used without reference to a particular Person,
"Affiliate" means an Affiliate of the Company.
"Beneficial Owner" shall have the meaning set forth in Rule 13d-3 of
the General Rules and Regulations promulgated under the Securities Exchange Act
of 1934 as in effect as of the date of this Agreement.
"Business" means the operation of the hauling assets listed on
Schedule 1.1.
"Damages" includes damages, losses, shortages, liabilities, payments,
obligations, penalties, claims, causes of action, litigation, demands, defenses,
judgments, suits, proceedings, costs, disbursements or expenses (including,
without limitation, fees, disbursements and expenses of attorneys, accountants
and other professional advisors and of expert witnesses and costs of
investigation, testing and preparation).
"Encumbrances" means title exceptions which materially adversely affect
the use of Assets for their intended uses or purposes in the Business.
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"Entity" means any corporation (including any non-profit corporation),
general partnership, limited partnership, joint venture, joint stock
association, estate, trust, cooperative, foundation, union, syndicate, league,
consortium, coalition, committee, society, firm company or other enterprise,
association, organization or entity of any nature, other than a Governmental
Authority.
"Environmental Laws" means any and all applicable laws, rules, or
regulations, in effect as of the date of Closing of any applicable Governmental
Authority that relate to health, the environment or a community's right to know.
"Environmental Permits" means any permit license, registration,
approval, or other authorization directly relating to the operation of the
Assets required by any Environmental Law.
"GAAP" means generally accepted accounting principles as in effect in
the United States of America, consistently applied. As applied to the Company,
GAAP means those accounting principles and practices (a) which are recognized as
such by the Financial Accounting Standards Board, (b) which are applied for all
periods in a manner consistent with the manner in which such principles and
practices were applied to the most recent audited financial statements of the
Company furnished to the Purchaser, and (c) which are consistently applied for
all periods.
"Governmental Authority" means any foreign governmental authority, the
United States of America, any State of the United States, any local authority
and any political subdivision of any of the foregoing, any multi-national
organization or body, any agency, department commission, board, bureau, court or
other authority of any of the foregoing, or any quasi-governmental or private
body exercising, or purporting to exercise, any executive, legislative,
judicial, administrative, police, regulatory or taxing authority or power of any
nature.
"Governmental Authorization" means any permit Environmental Permit,
license, franchise, approval, certificate, consent, ratification, permission,
confirmation, endorsement, waiver, certification, registration, qualification or
other authorization issued, granted, given or otherwise made available by or
under the authority of any Governmental Authority or pursuant to any Legal
Requirement.
"Knowledge" means, when applicable to the Company, the actual, current
conscious knowledge of Xxx Xxxxxxx, Xxx Xxxx and Xxxxxx Xxxxxxxx. No reference
to the Company's "knowledge" or similar references in any representation or
warranty contained in this Agreement shall be deemed to imply that the Company
has made any investigation or review in connection therewith.
"Legal Requirement" means any law, statute, ordinance, decree,
requirement, order, treaty, proclamation, convention, rule or regulation (or
interpretation of any of the foregoing) of, and the terms of any Governmental
Authorization issued by, any Governmental Authority, including without
limitation any requirement of Environmental Laws.
"Material Adverse Effect" shall mean any material adverse change in the
condition or operations of the Assets, taken as a whole.
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28
"Order" means any order, judgment, injunction, edict, decree, ruling,
pronouncement, determination, decision, opinion, sentence, subpoena, writ or
award issued, made, entered or rendered by any court, administrative agency or
other Governmental Authority or by any arbitrator.
"Organizational Documents" means, with respect to a corporation, the
certificate of incorporation, articles of incorporation and bylaws of such
corporation; with respect to a general partnership, the partnership agreement
establishing such partnership with respect to a joint venture, the joint venture
agreement establishing such joint venture; with respect to a limited
partnership, the limited partnership agreement and certificate of limited
partnership for such entity; with respect to a trust, the instrument
establishing such trust; and with respect to any other Entity, any charter
document or other document executed, adopted, approved, ratified or filed in
connection with the formation, creation, constitution or organization of such
Entity, in each case including any and all amendments or modifications thereof.
"Person" means any individual, Entity or Governmental Authority.
"Proceeding" means any action, suit, litigation, arbitration, lawsuit,
claim, proceeding (including any civil, criminal, administrative, investigative
or appellate proceeding and any informal proceeding), prosecution, contest,
hearing, inquiry, inquest, audit. examination, investigation, challenge,
controversy or dispute commenced, `brought, conducted or heard by or before, or
otherwise involving, any Governmental Authority or any arbitrator.
"Property" or "Properties" includes any property (whether real or
personal) which the Company currently or in the past has leased, operated or
owned or managed in any manner including without limitation any property
acquired by foreclosure or deed in lieu thereof and property now held as
security for a loan or other indebtedness by the Company.
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