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EXHIBIT 10.19
ASSET PURCHASE AGREEMENT
BY
AND
BETWEEN
NEWPARK ENVIRONMENTAL SERVICES, INC.
AND
U.S. LIQUIDS, INC.
Dated as of the 16th day
of September, 1998
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement") dated September 16,
1998 by and among Newpark Environmental Services, Inc., a Delaware corporation
("NESI" or "Seller"), and U.S. Liquids, Inc., a Delaware corporation ("USL" or
"Purchaser").
WHEREAS, one of Seller's lines of business is the Cleaning Business as
defined herein and activities related thereto; and
WHEREAS, Purchaser wishes to purchase from Seller and Seller wishes to
sell, transfer, assign and deliver to Purchaser the Acquisition Assets (as
hereinafter defined) on the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements stated herein, the parties
hereto covenant and agree as follows:
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I. ARTICLE
DEFINITION
I.1 Section Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles.
I.1 Section Defined Terms. As used in this Agreement, the following terms have
the meanings specified in this Section 1.2. Other capitalized terms have the
meanings assigned to them elsewhere in this Agreement.
Affiliate: with respect to any Person, means any Person directly or
indirectly controlling, controlled by or under common control with such Person,
and any natural Person who is an officer, director or partner of such Person and
any members of their immediate families living within the same household. A
Person shall be deemed to control another Person if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such other Person, whether through the ownership of
voting securities, by contract or otherwise.
CERCLA: means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
Cleaning Business: shall include but is not limited to any one or more
of the following activities: (1) performance of onshore and/or offshore cleaning
of tanks, barges, vessels, containers or other similar structures used in the
storage and/or transportation of NOW; and (2) the lease, rental or sale of labor
and/or equipment involved in cleaning. Code: means the Internal Revenue Code of
1986, as amended, or any amending or superseding tax laws of the United States
of America.
Environmental Laws: means any and all laws, common law, statutes,
ordinances, rules, regulations, judgments, orders or other official acts or
determinations of any Governmental Authority relating to the protection of human
health or safety or regulating or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance, element,
compound, mixture or material in any and all jurisdictions in which property of
Seller is located or the business of Seller is conducted or in which such
business at any time has been conducted, including, without limitation, (a)
CERCLA, (b) RCRA, (c) the Solid Waste Disposal Act, as amended, (d) the
Hazardous and Solid Waste Amendments Act of 1984, as amended, (e) the Clean Air
Act, as amended, (f) the Toxic Substances Control Act, as amended, (g) the Safe
Drinking Water Act, as amended, (h) the Federal Water Pollution Prevention and
Control Act, as amended, (i) the Occupational Safety and Health Act of 1970, as
amended, (j) the Hazardous Materials Transportation Act, as amended, (k) the
Rivers and Harbors Act of 1899, as amended, and (l) any rules and regulations
promulgated pursuant to any or all of (a) through (k) above. The terms "release"
or "threatened release" shall have the meanings specified in CERCLA, and the
terms "solid waste" and "disposal" (or "disposed") shall have the meanings
specified in RCRA; provided, however, that, to the extent the laws of any
jurisdiction applicable to Seller or any of their respective properties or
assets establish a meaning for "release," "solid waste" or "disposal" which is
broader than that specified in either CERCLA or RCRA, such broader meaning shall
apply in such jurisdiction.
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Governmental Authority: means any nation or government, any state or
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or pertaining to,
government.
Permitted Encumbrances: means (a) minor defects and irregularities
affecting title to the Acquisition Assets, but only if such defects and
irregularities do not and will not impair in any material respect the operation,
value, marketability or use of the asset affected by such defect or
irregularity; and (b) rights reserved to or vested in any governmental body to
control or regulate any asset in any manner that does not materially impair the
value or use of such asset.
Person: means any individual, partnership, joint venture, corporation,
limited liability company, association, trust, unincorporated organization,
government or agency or subdivision thereof or any other entity.
RCRA: means the Resources Conservation and Recovery Act of 1976, as
amended.
Subsidiary or Subsidiaries: means, with respect to any specified
Person, a corporation, partnership, joint venture, trust, limited liability
company, unincorporated organization or other Person at least a majority of
whose securities having ordinary voting power for the election of its board of
directors or other similar managing body are, at the time as of which any
determination is being made, owned legally or beneficially by such Person or one
or more Subsidiaries thereof. Tax Return: means any return, report, statement,
information return or other document (including any related or supporting
information) filed or required to be filed with any Governmental Authority in
connection with the determination, assessment or collection of any Taxes or the
administration of any laws, regulations or administrative requirements relating
to any Taxes.
Taxes: means all federal, foreign, state, local or other net or gross
income, gross receipts, sales, use, transfer, real property gains or transfer,
ad valorem, property, value-added, franchise, production, severance, windfall
profit, withholding, payroll, employment, excise or similar taxes, assessments,
duties, fees, levies or other governmental charges, together with any interest
thereon, any penalties, additions to tax or additional amounts with respect
thereto and any interest in respect of such penalties, additions or additional
amounts.
I ARTICLE
CLOSING
Closing. The closing of the purchase and sale provided for herein (the
"Closing") shall take place at the offices of U.S. Liquids, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, on the date hereof, or at
such other place, time or date as may be agreed upon by the parties hereto (the
"Closing Date").
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I ARTICLE
PURCHASE, SALE AND DELIVERY
I.1 Section Acquisition Assets. Subject to the terms and conditions of this
Agreement, and on the basis of the representations and warranties hereinafter
set forth, at the Closing Newpark shall sell, transfer, convey, assign and
deliver to Purchaser, and Purchaser shall acquire and purchase from Newpark, the
assets of Newpark attached hereto (the " Acquisition Assets"), free and clear of
any and all Liens, other than Permitted Encumbrances.
I.1 Section Purchase Price. The consideration for the purchase of the
Acquisition Assets is $2,150,000 (collectively, the price for the Acquisition
Assets shall be referred to as the "Purchase Price"). The Purchase Price has
been, shall be paid or shall be deemed to have been paid as follow:
(a) At the Closing, Purchaser shall pay $537,500 to Seller;
(a) Purchaser shall pay to Seller $537,500 on each of the following three dates:
October 1, 1998, January 1, 1999, and March 1, 1999.
All such payments of the Purchase Price by Purchaser to Seller shall be by wire
transfer to an account designated in writing by Seller or by a bank cashier's
check made payable to Seller.
I.1 Section Further Assistance. Seller shall execute and deliver to Purchaser,
at the Closing or thereafter, any other instrument which may be requested by
Purchaser 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 Acquisition Assets.
I ARTICLE
LIABILITIES AND OBLIGATIONS
Liabilities Not Assumed by Purchaser. Purchaser does not hereby assume
or agree to pay, perform or discharge, and shall not be responsible for, any
liabilities or obligations of Seller, whether accrued, absolute, contingent or
otherwise, including, without limitation, liabilities or obligations based on,
arising out of or in connection with (i) payment or nonpayment of Taxes, (ii)
any employee relating to service rendered prior to the Closing Date and under
any pension plan or agreement or employee benefit plan, (iii) claims or
conditions arising under or relating to Environmental Laws, or (iv) any claim,
litigation or proceeding, whether now pending or hereafter initiated, to the
extent based on any act or omission of Seller occurring before the Closing Date.
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I ARTICLE
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents, warrants and agrees to and with Purchaser as follows:
I.1 Section Organization; Qualification. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Seller is duly licensed or qualified as an entity to do business and is in good
standing in all jurisdictions wherein the character of the properties owned or
held by it or the nature of the business transacted by it requires it to be so
licensed or qualified.
I.1 Section Authority; Enforceability. Seller has all requisite corporate power
and authority to own and operate its assets and properties and to carry on its
business as presently conducted, to enter into this Agreement and to perform its
other obligations under this Agreement. The execution, delivery and performance
of this Agreement and the transactions contemplated hereby have been duly and
validly authorized by all requisite corporate action on the part of Seller. This
Agreement has been duly and validly executed and delivered by Seller. There is
no action, claim, suit, arbitration, investigation or proceeding pending or
threatened against Seller which purports to affect the validity or
enforceability of this Agreement or that seeks to prohibit, restrict or delay
the consummation of the transaction contemplated hereby.
I.1 Section Binding Agreement. This Agreement constitutes, as of the date
hereof, and this Agreement and all documents and instruments required hereunder
to be executed and delivered by Seller at Closing will constitute, on the
Closing Date, legal, valid and binding obligations of Seller enforceable against
Seller in accordance with their respective terms.
I.1 Section Conflicting Agreements and Other Matters; Consents. The execution
and delivery of this Agreement does not, the fulfillment of or compliance with
the terms and provisions hereof will not, and the consummation of the
transactions contemplated hereby will not (i) violate or conflict with any
provision of, or require any notice, consent, authorization or approval under,
the charter or bylaws of Seller, (ii) violate or conflict with any provision of
any judicial, administrative or arbitration order, award, judgment, writ,
injunction or decree applicable to or binding upon Seller or to which any of its
assets or properties is subject, or (iii) constitute a default under any
agreement or instrument to which Seller is a party or by which Seller is bound
or to which any of its properties is subject.
I.1 Section Title to Properties; Condition of Acquisition Assets. Seller has
good and marketable title to the Acquisition Assets and the Acquisition Assets
are not subject to any lien, including, without limitation, liens with respect
to Taxes, or encumbrance. The Acquisition Assets are in good operating condition
and repair (subject to normal wear and tear) and are adequate for the uses to
which they are being put, and none of the Acquisition Assets is in need of
maintenance or repairs except for ordinary, routine maintenance and repairs that
are not material in nature or cost. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, SELLER HEREBY DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES
CONCERNING THE ACQUISITION ASSETS, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL
CONDITION OF THE ACQUISITION ASSETS AND THEIR FITNESS FOR ANY PARTICULAR
PURPOSE. SELLER IS SELLING, AND PURCHASER IS PURCHASING, THE ACQUISITION ASSETS
"AS IS."
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I ARTICLE
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents, warrants and agrees to and with Seller as
follows:
I.1 Section Corporate Existence. Purchaser is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware.
I.1 Section Authority; Absence of Conflicts; Enforceability. Purchaser has all
requisite corporate power and authority to carry on its business as presently
conducted, to enter into this Agreement and to perform its obligations under
this Agreement. The execution, delivery and performance of this Agreement and
the transactions contemplated hereby have been duly and validly authorized by
all requisite corporate action on the part of Purchaser. This Agreement has been
duly and validly executed and delivered by Purchaser. The consummation of the
transactions contemplated by this Agreement will not violate, or be in conflict
with, any provision of Purchaser's certificate of formation, any agreement or
instrument to which Purchaser is a party or by which Purchaser is bound or any
law applicable to Purchaser. There is no action, claim, suit, arbitration,
investigation or proceeding pending or threatened against Purchaser which
purports to affect the validity or enforceability of this Agreement or that
seeks to prohibit, restrict or delay the consummation of the transactions
contemplated hereby.
I.1 Section Binding Agreement. This Agreement constitutes, as of the date
hereof, and this Agreement and all documents and instruments required hereunder
to be executed and delivered by Purchaser at Closing will constitute, on the
Closing Date, legal, valid and binding obligations of Purchaser enforceable
against Purchaser, as the case may be, in accordance with their respective
terms.
I ARTICLE
CONDITIONS TO CLOSING
I.1 Section Conditions to Obligations of Purchaser. The obligations of Purchaser
to consummate the transactions contemplated herein are subject, at the option of
Purchaser, to satisfaction of the following conditions:
(a) Compliance. Seller shall have complied with their covenants and agreements
contained herein, and the representations and warranties contained in Article V
hereof shall be true and correct on the date hereof and as of the Closing Date.
(a) Seller's Resolutions. Seller shall deliver to Purchaser certified copies of
resolutions duly adopted by the board of directors of each Seller authorizing
and approving the execution and delivery of this Agreement, including any
attachment hereto, and the consummation of the transactions contemplated herein.
(a) Transfer Documents. Seller shall execute and deliver to Purchaser such bills
of sale and other instruments of sale, transfer, conveyance, assignment and
delivery covering the Acquisition Assets or any part thereof, executed by Seller
or other appropriate parties, as
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Purchaser may reasonably require to assure the full and effective sale,
transfer, conveyance, assignment and delivery to Purchaser of the Acquisition
Assets.
I.1 Section Conditions to Obligations of Seller. The obligations of Seller to
consummate the transactions contemplated herein are subject, at the option of
Seller, to satisfaction of the following condition: Purchaser shall have
complied with its covenants and agreements contained herein, and the
representations and warranties contained in Article VI hereof shall be true and
correct on the date hereof and as of the Closing Date.
I ARTICLE
INDEMNIFICATION
I.1 Section Seller's Indemnity Obligations. Seller shall indemnify and hold
Purchaser (including its officers, directors, employees and agents) harmless
from and against any and all claims, actions, causes of action, arbitrations,
proceedings, losses, damages, liabilities, judgments and expenses (including,
without limitation, reasonable attorneys' fees) ("Indemnified Amounts") incurred
by Purchaser as a result of (a) any breach or misrepresentation in any of the
representations and warranties made by or on behalf of Seller in this Agreement,
(b) any violation or breach by Seller of or default by Seller under the terms of
this Agreement, (c) except for liabilities and obligations expressly assumed by
Purchaser pursuant to this Agreement, any act or omission by Seller, including,
without limitation, those acts or omissions relating to intellectual property
rights or to products manufactured or sold by Seller, occurring prior to the
Closing Date with respect to the Seller's business or the Acquisition Assets,
(d) any act or omission occurring after the Closing Date by Seller with respect
to Seller's business or (e) any of Seller's Liabilities.
I.1 Section Purchaser's Indemnity Obligations. Purchaser shall indemnify and
hold Seller (including its officers, directors, employees and agents) harmless
from and against any and all Indemnified Amounts incurred by Seller as a result
of (a) any breach or misrepresentation in any of the representations and
warranties made by or on behalf of Purchaser in this Agreement, (b) any
violation or breach by Purchaser of or default by Purchaser under the terms of
this Agreement or (c) any act or omission occurring after the Closing Date by
Purchaser with respect to the Acquisition Assets.
I ARTICLE
MISCELLANEOUS
I.1 Section Survival. Except as otherwise provided herein, the representations
and warranties set forth in this Agreement and in any certificate or instrument
delivered in connection herewith shall be continuing and shall survive the
Closing for a period of one (1) year following the Closing Date, notwithstanding
any investigation at any time made by or on behalf of Purchaser, but shall
thereafter terminate and be of no further force or effect; provided, however,
that in the case of all representations and warranties, there shall be no such
termination with respect to any such representation or warranty as to which a
bona fide claim has been asserted by written notice of such claim delivered to
the party or parties making such representation or warranty prior to the
expiration of the survival period.
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I.1 Section Expenses. Except as otherwise expressly provided herein, each party
shall bear its own respective expenses incurred in connection with the
negotiation, preparation and execution of this Agreement and the transactions
contemplated hereby, including his or its own consultant's fees, attorneys'
fees, accountants' fees, investment banking and loan fees and other similar
costs and expenses.
I.1 Section Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been received only if and when (a)
personally delivered or (b) on receipt after mailing, by United States mail,
first class, postage prepaid, by certified mail return receipt requested, or by
facsimile transmission to the respective parties, addressed in each case as
follows (or to such other address as may be specified by like notice):
(i) If to Seller, to: Newpark Environmental Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to Purchaser, to: U.S. Liquids, Inc.
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇ ▇▇▇, President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
I.1 Section Entire Agreement. This Agreement, including any attachments hereto,
which attachments are incorporated herein by reference and deemed to be a part
of this Agreement, and the Noncompetition Agreement constitute the entire
agreement of the parties with respect to the subject matter hereof, and may not
be modified, amended or terminated except by a written instrument specifically
referring to this Agreement signed by all the parties hereto. Concurrently with
the execution and delivery of this Agreement, the parties and Newpark Resources,
Inc., a Delaware corporation, are executing the following additional agreements
(the "New Deal Agreements"): Settlement of Arbitration and Release, NOW Payment
Agreement, Noncompetition Agreement and Miscellaneous Agreement. In the event of
any conflict between the provisions of this Agreement and any of the New Deal
Agreements, the provisions of the New Deal Agreement or Agreements shall
control.
I.1 Section Governing Law. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT
TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
I.1 Section Assignments and Third Parties. Except as otherwise provided herein,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. No party hereto shall assign
this Agreement or any part hereof without the prior written consent of the other
party; provided, however, that it is understood and agreed that Purchaser may
assign all or any portion of its rights and delegate all or any portion of its
duties hereunder to an Affiliate of Purchaser, in which event the assignee of
Purchaser shall execute and deliver all documents, certificates and other
instruments to be executed and delivered by Purchaser at the Closing in lieu of
Purchaser, which documents, certificates and other instruments shall be
appropriately modified to conform to such assignee's
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organizational status. No assignment shall release a party of any of its
obligations under this Agreement.
I.1 Section Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any of the parties hereto. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the
extent possible.
I.1 Section Amendments; No Waivers. Any provision of this Agreement may be
amended or waived prior to the Closing Date if, and only if, such amendment or
waiver is in writing and signed, in the case of an amendment, by all parties
hereto, or in the case of a waiver, by the party against whom the waiver is to
be effective. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
I.1 Section No Third-Party Beneficiaries. Nothing in this Agreement shall
entitle any Person other than the parties hereto or their respective successors
and assigns permitted hereby to any claim, cause of action, remedy or right of
any kind.
I.1 Section Headings; Use of Certain Terms. The headings and table of contents
included herein are for convenience only and shall have no significance in the
interpretation hereof. Unless the context shall otherwise require, the singular
shall include the plural and vice versa, and each pronoun in any gender shall
include all other genders.
I.1 Section Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed for all purposes to be an original,
but all of which together shall constitute one and the same agreement.
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ON THIS DATE, the Parties have executed multiple originals of this
Asset Purchase Agreement.
NEWPARK ENVIRONMENTAL SERVICES, INC.
Dated: By:
--------------------------- Name:
Title:
U.S. LIQUIDS, INC.
Dated: By:
--------------------------- Name:
Title: