FORM] VOTING AND LOCK-UP AGREEMENT
Exhibit 2.8
[FORM]
THIS AGREEMENT is made on April 5, 2011.
BETWEEN:
The executive officers and directors listed on Schedule A (each, a “Peak Management Shareholder” and collectively, the “Peak Management Shareholders”) of Peak Energy Services Ltd., a corporation incorporated under the laws of Alberta (“Peak”)
- and -
Clean Harbors, Inc., a corporation incorporated under the laws of Massachusetts (“Parent”)
- and -
Clean Harbors Industrial Services Canada, Inc., a corporation incorporated under the laws of Alberta (“Purchaser”).
RECITALS:
A. Parent, Purchaser and Peak have entered into a business combination transaction by way of an arrangement (the “Arrangement”) pursuant to an acquisition agreement dated as of April 5, 2011 (the “Acquisition Agreement”).
B. As consideration for Parent and Purchaser entering into the Acquisition Agreement, each Peak Management Shareholder undertakes to take certain actions and do certain things to support the Arrangement as set out in this voting and lock-up agreement (this “Agreement”).
C. Each Peak Management Shareholder is the registered and/or direct or indirect beneficial owner of, or has control or direction over, the number of issued and outstanding common shares of Peak (“Peak Common Shares”) set forth on Schedule A.
D. Each Peak Management Shareholder is the holder of the number of options of Peak (“Peak Options”) set forth on Schedule A to purchase Peak Common Shares granted under the Peak Share Option Plan.
E. The terms of the Arrangement are set out in the Acquisition Agreement (including the proposed Plan of Arrangement), a copy of which is attached as Schedule B. Unless the context indicates otherwise, capitalized terms used herein and not otherwise defined have the meanings set forth in the Acquisition Agreement.
THEREFORE, in consideration of the covenants herein contained and such other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Peak Management Shareholder, Parent and Purchaser agree as follows.
ARTICLE 1
REPRESENTATIONS AND WARRANTIES
1.1 Peak Management Shareholder Representations
Each Peak Management Shareholder represents and warrants to Parent and Purchaser in respect of such Peak Management Shareholder only and not any other Peak Management Shareholder (and acknowledges that each of Parent and Purchaser is independently relying upon such representations and warranties in entering into the Acquisition Agreement) as follows:
(a) The Peak Common Shares and Peak Options set forth opposite such Peak Management Shareholder’s name on Schedule A to this Agreement represent all securities or rights to acquire securities of Peak held of record or beneficially owned by such Peak Management Shareholder, or over which such Peak Management Shareholder has any direct or indirect voting power or dispositive power or other control or direction. Except as described in the notes to Schedule A, such Peak Management Shareholder is the sole legal and sole beneficial owner of, directly or indirectly, has sole voting power over, sole power of disposition of, sole control and sole direction over such Peak Common Shares and Peak Options, and sole power to agree to all of the matters set forth in this Agreement. Except as described in the notes to Schedule A, such Peak Management Shareholder (or the respective affiliate of such Peak Management Shareholder described in the notes to Schedule A) has good and marketable title to such Peak Common Shares and Peak Options, free and clear of any and all liens, pledges, mortgages, charges, restrictions, security interests, encumbrances, adverse claims and demands or rights of others of any nature or kind.
(b) Such Peak Management Shareholder has the legal capacity to execute and deliver this Agreement and to perform his obligations under this Agreement. This Agreement has been duly executed and delivered by such Peak Management Shareholder, and assuming the due authorization, execution and delivery by Parent and Purchaser, this Agreement constitutes the legal, valid and binding obligation of such Peak Management Shareholder, enforceable in accordance with its terms, subject to bankruptcy, insolvency and other applicable Laws affecting creditors’ rights generally and general principles of equity.
(c) Such Peak Management Shareholder has not previously granted or agreed to grant any proxy or other right to vote in respect of his Peak Common Shares and Peak Options or entered into any voting trust, pooling or other agreement with respect to the right to vote, call meetings of shareholders or give consents or approvals of any kind as to his Peak Common Shares and Peak Options except those which are no longer of any force or effect.
(d) No Peak Management Shareholder has any agreement or option, or any right or privilege (whether by law, pre-emptive or contractual) capable of becoming an agreement or option, for the purchase, requisition or transfer from such Peak Management Shareholder of any of his Peak Common Shares and Peak Options, or any interest therein or right thereto, except pursuant to this Agreement and the Acquisition Agreement.
(e) Neither the execution and delivery of this Agreement by such Peak Management Shareholder, the performance by such Peak Management Shareholder of his obligations hereunder, nor the compliance by such Peak Management Shareholder with any of the provisions hereof will result in the creation of any lien or encumbrance on any of his Peak Common Shares or Peak Options or result in any breach of, or be in conflict with, or constitute a default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a default under any contract or other document to which such Peak Management Shareholder is a party or subject, or any judgment, decree, order, statute, law, rule or regulation applicable to such Peak Management Shareholder.
(f) There are no other obligations relating to the Peak Common Shares and Peak Options outstanding between such Peak Management Shareholder or his Affiliates, on the one hand, and Peak or its Subsidiaries, on the other hand.
(g) There is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any Governmental Entity, or, to the knowledge of such Peak Management Shareholder, threatened against such Peak Management Shareholder or any of his properties that, individually or in the aggregate, could impair the ability of such Peak Management Shareholder to perform his obligations under this Agreement. There is no judgment, decree or order against such Peak Management Shareholder that could prevent, enjoin, alter or delay such Peak Management Shareholder from performing his obligations under this Agreement.
(h) No consent, approval or authorization of, or declaration or filing with, or notice to, any Governmental Entity which has not been received or made is required by the Peak Management Shareholder in connection with the execution and delivery by the Peak Management Shareholder of this Agreement and the completion of the matters contemplated by this Agreement.
1.2 Parent and Purchaser Representations
Each of Parent and Purchaser hereby represents and warrants to each Peak Management Shareholder separately as to each and not in respect of the other (and acknowledges that the Peak Management Shareholders are relying upon such representations and warranties) as follows:
(a) It is a corporation duly incorporated and validly existing under the Laws of its jurisdiction of incorporation.
(b) It has the legal capacity to execute and deliver this Agreement and to perform its obligations under this Agreement. This Agreement has been duly executed and delivered by Parent or Purchaser, as applicable, and has been duly authorized by all necessary corporate action, and assuming the due authorization, execution and delivery by each Peak Management Shareholder, this Agreement constitutes a legal, valid and binding obligation of Parent and Purchaser, as applicable, enforceable in accordance with its terms, subject to bankruptcy, insolvency and other applicable Laws affecting creditors’ rights generally and general principles of equity.
(c) The execution, delivery and performance of this Agreement by Parent or Purchaser, as applicable, will not (i) constitute a violation of its articles of incorporation or by-laws, each as amended or (ii) constitute a violation of any Law applicable or relating to it or its businesses.
(d) Neither the execution and delivery of this Agreement by Parent or Purchaser, the performance by Parent or Purchaser of its respective obligations hereunder and under the Acquisition Agreement, nor the compliance by Parent or Purchaser with any of the provisions hereof or thereof will result in any breach of, or be in conflict with, or constitute a default under, or create a state of facts which, after notice or lapse of time, or both, would constitute a default under any contract or other document to which the Parent or Purchaser is a party or subject, or any judgment, decree, order, statute, law, rule or regulation applicable to Parent or Purchaser.
(e) There is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any Governmental Entity, or, to the knowledge of the Parent or Purchaser, threatened against the Parent or Purchaser or any of its respective properties that, individually or in the aggregate, could impair the ability of the Parent or Purchaser to perform its obligations under this Agreement or the Acquisition Agreement. There is no judgment, decree or order against the either Parent or Purchaser that could prevent, enjoin, alter or delay the Parent or Purchaser from performing its obligations under this Agreement or the Acquisition Agreement.
(f) No consent, approval or authorization of, or declaration or filing with, or notice to, any Governmental Entity which has not been received or made is required by Parent or Purchaser in connection with the execution and delivery by Parent or Purchaser of this Agreement and the completion of the matters contemplated by this Agreement.
ARTICLE 2
PEAK MANAGEMENT SHAREHOLDER OBLIGATIONS
2.1 Restrictions on Transfers
(a) Each Peak Management Shareholder hereby irrevocably covenants in favour of Parent and Purchaser that, except as contemplated in this Agreement, or unless this Agreement is terminated in accordance with Article 4, such Peak Management Shareholder will not: (i) sell, transfer, gift, assign, pledge, hypothecate, encumber or otherwise dispose of any of his Peak Common Shares or Peak Options or any additional common shares of Peak in respect of which such Peak Management Shareholder acquires direct or indirect legal or beneficial ownership or control or direction after the date hereof (the “Additional Peak Common Shares”) or any additional options to acquire common shares of Peak in respect of which he acquires direct or indirect legal or beneficial ownership or control or direction after the date hereof (the “Additional Peak Options”), or enter into any agreement, arrangement or understanding in connection therewith (whether by actual disposition, derivative transaction or effective economic disposition through cash settlement), or (ii) grant any proxies or powers of attorney, or deposit any of his Peak Common Shares, Peak Options, Additional Peak Options or Additional Peak Common Shares (collectively, the “Owned Peak Securities”) into a voting trust or enter into a voting agreement, pooling agreement, understanding or arrangement with respect to such Owned Peak Securities, without having first obtained the prior written consent of Parent.
(b) Notwithstanding the restrictions in 2.1(a) above, a Peak Management Shareholder may transfer, sell or dispose of any Owned Peak Securities to an “associate” or “affiliate” (each within the meaning of the Securities Act (Alberta)) of that Peak Management Shareholder, provided, however, that prior to any such transfer, sale or disposition, the transferee shall agree with Parent and Purchaser, in form and on terms satisfactory to Parent and Purchaser, acting reasonably, to be bound by all of the provisions of this Agreement in the same manner as the Peak Management Shareholder, and the Peak Management Shareholder shall remain, with such transferee, jointly and severally liable for its and such transferee’s obligations under this Agreement.
2.2 Non-Solicitation
On the terms and subject to the conditions of this Agreement, each Peak Management Shareholder hereby covenants and agrees in favour of Parent and Purchaser that the Peak Management Shareholder shall:
(a) unless this Agreement is terminated in accordance with Article 4, not take any action of any kind which might, directly or indirectly, interfere with the successful completion of the Arrangement, including any action to (i) solicit, assist, initiate, facilitate or encourage (including by way of furnishing or providing access to any information or permitting any visit to any facilities or properties of Peak or any of
its Subsidiaries, or entering into any form of contract) the initiation of any inquiries, proposals or offers regarding an Acquisition Proposal, (ii) participate in any discussions or negotiations with any Person (other than Parent, Purchaser and their Affiliates) regarding an actual or potential Acquisition Proposal, (iii) influence the Peak Board or any committee thereof to withdraw, amend, modify or qualify, or propose publicly to withdraw, amend, modify or qualify, in a manner adverse to Parent or Purchaser, the approval or recommendation of the Board or any committee thereof of the Acquisition Agreement or the Arrangement, (iv) accept, approve, endorse, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, or (v) accept or enter into, or publicly propose to accept or enter into, any contract in respect of an Acquisition Proposal;
(b) immediately terminate any existing solicitations, discussions or negotiations with any Person (other than Parent or Purchaser and their Affiliates) that has made, indicated any interest to make or may reasonably be expected to make, an Acquisition Proposal and cease to provide to any such Person any information, or access to any information, concerning Peak or any of its Subsidiaries; and
(c) promptly (and in any event within 24 hours) notify Parent, at first orally and thereafter in writing, of any proposal, inquiry, offer (or any amendment thereto) or request relating to or constituting an Acquisition Proposal, or that could, in the opinion of the Peak Management Shareholder, be reasonably expected to lead to an Acquisition Proposal, in each case received after the date hereof, of which the Peak Management Shareholder becomes aware, or any amendments to the foregoing, any request for discussions or negotiations, any request for representation on the Board, or any request for non-public information relating to Peak or any of its Subsidiaries in connection with an Acquisition Proposal, or for access to the properties, books or records of Peak or any of its Subsidiaries by any Person that informs the Peak Management Shareholder that it is considering making, or has made, an Acquisition Proposal or any amendment thereto; promptly provide to Parent a description of the material terms and conditions of any such Acquisition Proposal or, inquiry, offer or request, together with a copy of all documentation relating to any such Acquisition Proposal or inquiry, offer or request, the identity of the Person making such proposal, inquiry, offer or request, and any other details of the Acquisition Proposal, contract, documents or negotiations as Parent may reasonably request; and keep Parent informed of any change to the material terms of any such Acquisition Proposal or proposal, inquiry, offer or request.
2.3 Voting Rights
Unless this Agreement is terminated in accordance with Article 4:
(a) subject to completion of a proxy as contemplated under this Agreement, each Peak Management Shareholder agrees in favour of Parent and Purchaser that he will, to the extent permitted under applicable Securities Laws, vote (or cause to be
voted) all Owned Peak Securities at any meeting of the shareholders of Peak, and in any action by written consent of the shareholders of Peak: (i) in favour of the approval, consent, ratification and adoption of the Arrangement (and any actions required in furtherance thereof); or (ii) against any action that would impede, delay, interfere or discourage the Arrangement (including, for greater certainty, against (A) any Acquisition Proposal, (B) any merger, consolidation, business combination, sale of assets, amalgamation, arrangement, reorganization or recapitalization of Peak, (C) any sale, lease or transfer of all or substantially all of the assets of Peak, (D) any dissolution, liquidation or winding up of Peak, (E) any action to remove or change any of the directors of Peak, and (F) any material change in the capitalization of Peak, or the corporate structure or charter of Peak) (in each case where the relevant proposal does not have the express written agreement of Parent and Purchaser); and (iii) against any action that would result in any breach of any representation, warranty or covenant of Peak in the Acquisition Agreement;
(b) for greater certainty, in connection with any matter referred to in Section 2.3(a) other than those matters referred to in Section 2.3(a)(i), each Peak Management Shareholder agrees in favour or Purchaser and Parent that he will consult with Purchaser and Parent prior to exercising any voting rights attached to his Owned Peak Securities and will exercise or procure the exercise of such voting rights as Purchaser or Parent instructs;
(c) upon the written request or direction of Parent or Purchaser, each Peak Management Shareholder agrees in favour of Parent and Purchaser that such Peak Management Shareholder shall promptly execute and deliver, and not revoke, a proxy appointing such Person or Persons as Parent or Purchaser may request or direct as proxy for such Peak Management Shareholder, with full power of substitution, to attend, vote and otherwise act for and on behalf of such Peak Management Shareholder in respect of all such matters that may come before any meeting of Peak Shareholders relating to the Arrangement including any action that would impede, interfere or discourage the Arrangement and in such circumstances, the Peak Management Shareholder will not be responsible for voting under Section 2.3(a). If for any reason such proxy is invalid or not effective or is not delivered promptly after request is made, such Peak Management Shareholder hereby unconditionally and irrevocably appoints Parent and Purchaser as attorney in fact for and on its behalf to act in respect of any such resolution in connection with any meeting of the Peak Shareholders; and
(d) each Peak Management Shareholder agrees in favour of Parent and Purchaser that such Peak Management Shareholder shall not, without the prior written consent of Parent and Purchaser, requisition or join in the requisition of any meeting of the securityholders of Peak for the purpose of considering any resolution.
2.4 Additional Covenants of each Peak Management Shareholder
Each Peak Management Shareholder hereby undertakes in favour of Parent and Purchaser:
(a) to not bring, or threaten to bring, any suit or proceeding for the purpose of, or which has the effect of, directly or indirectly, stopping, preventing, impeding, or varying such Arrangement or any aspect thereof;
(b) to not do indirectly that which he may not do directly in respect of the restrictions on his rights with respect to such Peak Management Shareholder’s Owned Peak Securities pursuant to this Article 2, including, but not limited to, the sale of any direct or indirect holding company of such Peak Management Shareholder or the granting of a proxy on any of such Peak Management Shareholder’s Owned Peak Securities of any direct or indirect holding company of such Peak Management Shareholder which would have, indirectly, the effects prohibited by this Article 2;
(c) if such Peak Management Shareholder is also a director of Peak, upon completion of the Plan of Arrangement, to resign as a director of Peak and its subsidiaries at the time and in the manner requested by Parent provided that the foregoing shall not restrict the ability of such Peak Management Shareholder to resign at an earlier time if such Peak Management Shareholder so desires;
(d) in respect of any Owned Peak Securities of which the Peak Management Shareholder has indirect or beneficial ownership or over which the Peak Management Shareholder has control or direction, the Peak Management Shareholder will cause the record holder of such securities to perform all covenants of such Peak Management Shareholder as if such record holder is the Peak Management Shareholder;
(e) to promptly notify Parent and Purchaser of the number of Additional Peak Common Shares and/or Additional Peak Options acquired by such Peak Management Shareholder, if any, after the date hereof. Any such securities shall be subject to the terms of this Agreement as though they were Peak Common Shares and/or Peak Options owned by such Peak Management Shareholder on the date hereof;
(f) to promptly notify Parent and Purchaser upon any of the Peak Management Shareholder’s representations and warranties contained herein becoming untrue or incorrect in any material respect prior to the date on which the Plan of Arrangement becomes effective (the “Effective Time”), and for the purposes of this provision, each representation and warranty shall be deemed to be given at and as of all times during such period (irrespective of any language which suggests that it is only being given as at the date hereof); and
(g) to not take any other action of any kind which might reasonably be regarded as likely to reduce the success of, or delay or interfere with the completion of, the Arrangement.
2.5 Revised Arrangement
If Parent and Purchaser conclude, after the date of this Agreement, that it is necessary or desirable to proceed with a form of transaction other than the Arrangement (including, without
limitation, an amalgamation or a takeover bid) whereby Parent and/or Purchaser, and/or their Affiliates, would effectively acquire all the Peak Common Shares on economic and other terms and conditions (including, without limitation, tax treatment) having consequences to the Peak Management Shareholder that are equivalent to or better than those contemplated by this Agreement (any such transaction is referred to as an “Revised Arrangement”), the Peak Management Shareholder agrees to support the completion of the Revised Arrangement in the same manner as the Arrangement, including by tendering Owned Peak Securities pursuant to the Revised Arrangement and, if necessary, by voting the Peak Common Shares in favour of a special resolution approving the Revised Arrangement. In the event of any proposed Revised Arrangement, any reference in this Agreement to the Arrangement shall refer to the Revised Arrangement to the extent applicable, and all terms, covenants, representations and warranties of this Agreement shall be and shall be deemed to have been made in the context of the Revised Arrangement.
2.6 Fiduciary Obligations
Parent and Purchaser hereby agree and acknowledge that each Peak Management Shareholder is bound hereunder solely in its capacity as a securityholder of Peak and that the provisions hereof shall not be deemed or interpreted to bind such Peak Management Shareholder in any capacity as a director or an officer of Peak.
2.7 No Ownership Interest
Nothing contained in this Agreement vests in Parent and Purchaser any direct or indirect ownership, or incidence of ownership, of or with respect to any Owned Peak Securities. All rights, ownership and economic benefits of and relating to any Owned Peak Securities remain vested in and belong to each applicable Peak Management Shareholder, and Parent and Purchaser have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of Peak or exercise any power or authority to direct any Peak Management Shareholder in the voting of any of the Owned Peak Securities, or in the performance of the Peak Management Shareholders’ duties or responsibilities as a shareholder of Peak, except as otherwise provided herein.
2.8 Remedies
Each Peak Management Shareholder agrees that irreparable harm would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached for which money damages would not be an adequate remedy at law. It is accordingly agreed that Parent and Purchaser will be entitled to an injunction or injunctions and other equitable relief to prevent breaches of this Agreement, with any requirement for the securing or posting of any bond in connection with obtaining any such injunctive or other equitable relief hereby being waived.
ARTICLE 3
OTHER COVENANTS
3.1 No Dissent
Each Peak Management Shareholder hereby waives and agrees, in favour of Parent and Purchaser, not to exercise any rights of appraisal or rights of dissent such Peak Management Shareholder may have in connection with the Arrangement.
3.2 Disclosure
Each Peak Management Shareholder agrees in favour of Parent and Purchaser:
(a) to the details of this Agreement being set out in any information circular produced by Peak or Parent in connection with the Arrangement; and
(b) to this Agreement being made publicly available on SEDAR and otherwise to the extent required by Law.
ARTICLE 4
TERMINATION
4.1 Termination by Peak Management Shareholder
The obligations of the Peak Management Shareholder under this Agreement shall automatically terminate upon the earlier of (i) the termination of the Acquisition Agreement in accordance with its terms (including, without limitation, the termination of the Acquisition Agreement in connection with a Superior Proposal in accordance with Section 8.2(d) of the Acquisition Agreement) and (ii) written notice by the Peak Management Shareholder to the Parent and the Purchaser if: (y) the transaction contemplated by the Acquisition Agreement is not completed by the Outside Date; or (z) the Acquisition Agreement is amended or the Parent and Purchaser agree to amend, or publicly announce an intention to amend, the Acquisition Agreement, without the written approval of the Peak Management Shareholder, other than to give effect to a Revised Arrangement, and where the effect of such amendment is to reduce the amount of the Cash Consideration (as defined in the Arrangement).
4.2 Termination by Parent and Purchaser
Parent and Purchaser, when not in default in the performance of its obligations under this Agreement, may, at any time and without prejudice to any other rights it may have under this Agreement or otherwise, terminate this Agreement, in respect of any Peak Management Shareholder, by notice in writing to such Peak Management Shareholder.
4.3 Effect of Termination
In the case of any notice of termination of this Agreement pursuant to either Section 4.1 or 4.2, this Agreement shall terminate as between Parent and Purchaser and the applicable Peak Management Shareholder or Peak Management Shareholders and be of no further force or effect. Notwithstanding anything else contained herein, such termination shall not relieve any party hereunder from liability for any breach of this Agreement prior to such termination.
ARTICLE 5
MISCELLANEOUS
5.1 Interpretation
In this Agreement:
(a) Governing Law — This Agreement will be governed, including as to validity, interpretation and effect, by the laws of the Province of Alberta and the laws of Canada applicable therein, and will be construed and treated in all respects as an Alberta contract. Each party to this Agreement hereby irrevocably attorns to the non-exclusive jurisdiction of the Courts of the Province of Alberta in respect of all matters arising under and in relation to this Agreement and the Arrangement. Each party to this Agreement hereby waives any right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the transactions contemplated hereby or the actions of the parties in the negotiation, administration, performance and enforcement of this Agreement.
(b) Headings — Headings of Sections, Articles and Schedules are inserted for convenience of reference only and do not affect the construction or interpretation of this Agreement.
(c) Including — Where the word “including” or “includes” is used in this Agreement, it means “including (or includes) without limitation”.
(d) Number and Gender — Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include both genders and neuter.
(e) Severability — If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or Law or public policy, all other conditions and provisions of this Agreement will 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 Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties will 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 fullest extent possible.
5.2 Incorporation of Schedules
The Schedules attached hereto and described below shall, for all purposes hereof, form an integral part of this Agreement.
|
Schedule A |
- |
Peak Management Shareholder Information |
|
|
|
|
|
Schedule B |
- |
Acquisition Agreement |
5.3 Date for any Action
In the event that any date on which any action is required to be taken hereunder by any party is not a Business Day, such action shall be required to be taken on the next day which is a Business Day.
5.4 Entire Agreement
This Agreement, together with the agreements and other documents required to be delivered pursuant to this Agreement, constitutes the entire agreement between Parent, Purchaser and each Peak Management Shareholder and sets out all the covenants, promises, warranties, representations, conditions, understandings and agreements between Purchaser, Parent and each Peak Management Shareholder pertaining to the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written. No reliance has been made upon, and there are no covenants, promises, warranties, representations, conditions, understandings or other agreements, oral or written between Parent, Purchaser and each Peak Management Shareholder in connection with the subject matter of this Agreement except as specifically set forth in this Agreement and any document required to be delivered pursuant to this Agreement.
5.5 Survival
The representations and warranties of the Peak Management Shareholder made in this Agreement shall survive the completion of the Arrangement and shall continue in full force and effect for the benefit of Parent and Purchaser for a period of one year from the date of this Agreement, with the exception of the representation and warranty in Section 1.1(a), which shall survive indefinitely.
5.6 Notices
All notices and other communications given or made pursuant hereto will be in writing and will be deemed to have been duly given or made as of the date delivered or sent if delivered personally or sent by facsimile or e-mail transmission, or as of the second following Business Day if sent by prepaid overnight courier, to the parties at the following addresses:
|
if to a Peak Management Shareholder: |
|
at such Peak Management Shareholder’s address, fax number or e-mail address as set out in Schedule A |
|
if to Parent or Purchaser: |
|
c/o Clean Harbors, Inc. |
|
|
|
Attention: ▇▇▇▇▇ ▇▇▇▇▇ |
|
|
|
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ |
|
|
|
E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
|
|
|
|
|
with a copy (which will not constitute notice) to: |
|
▇▇▇▇▇, ▇▇▇▇ & ▇’▇▇▇▇▇▇▇▇, P.C. |
|
|
|
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ |
|
|
|
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇.▇.▇., ▇▇▇▇▇ |
|
|
|
Attention: C. ▇▇▇▇▇▇▇ ▇▇▇▇ |
|
|
|
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ |
|
|
|
E-mail: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇ |
|
|
|
|
|
and to |
|
Gowling ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP |
|
|
|
Suite 1020 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ |
|
|
|
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ |
|
|
|
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
|
|
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ |
|
|
|
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ |
Parent and Purchaser may, from time to time, change its address by giving notice to each Peak Management Shareholder in accordance with the provisions of this Section, and each Peak Management Shareholder may change his address by giving Parent and Purchaser such notice in such manner.
5.7 Amendment
No amendment, supplement, modification or waiver or termination of this Agreement and, unless otherwise specified, no consent or approval by any party, shall be binding unless executed in writing by the party to be bound.
5.8 Further Assurances
The parties will with reasonable due diligence do all such things and provide all such reasonable assurances as may be required to consummate the transactions contemplated by this Agreement, and each party will provide such further documents or instruments required by any other party as may be reasonably necessary or desirable to effect the purpose of this Agreement and carry out its provisions.
5.9 Time of the Essence
Time will be of the essence in this Agreement.
5.10 Expenses
Parent, Purchaser and each Peak Management Shareholder shall pay their respective legal, financial advisory and accounting costs and expenses incurred in connection with the preparation, execution and delivery of this Agreement and all documents and instruments
executed or prepared pursuant hereto and any other costs and expenses whatsoever and howsoever incurred.
5.11 Waiver
Each Peak Management Shareholder and Parent and Purchaser agree with each other and confirm to each other that:
(a) any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by any party to be bound or in the case of a waiver, by the party against whom the waiver is to be effective; and
(b) no failure or delay by any Peak Management Shareholder or Parent and Purchaser 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 by such Peak Management Shareholder, Parent and Purchaser.
5.12 Assignability
The provisions of this Agreement are binding upon and enure to the benefit of Parent, Purchaser and each Peak Management Shareholder and their respective heirs, executors, administrators, legal personal representatives, successors and permitted assigns. No Peak Management Shareholder may assign, delegate or otherwise transfer any of his rights, interests or obligations under this Agreement without the prior written consent of Parent and Purchaser. Parent and Purchaser may not assign, delegate or otherwise transfer any of its rights, interest or obligations under this Agreement, in respect of any Peak Management Shareholder, without the prior written consent of such Peak Management Shareholder, except that Purchaser or Parent may assign, delegate or otherwise transfer any of its rights, interest or obligations under this Agreement, in respect of any Peak Management Shareholder, to an Affiliate, without reducing its own obligations hereunder, without the consent of such Peak Management Shareholder.
5.13 Independent Legal Advice
Each Peak Management Shareholder acknowledges in favour of Parent and Purchaser that he has entered into this Agreement willingly with full knowledge of the obligations imposed by the terms of this Agreement. Each Peak Management Shareholder further acknowledges in favour of Parent and Purchaser that he has been afforded the opportunity to obtain independent legal advice and confirms by the execution of this Agreement that he has either done so or waived his right to do so, and agrees in favour of Parent and Purchaser that this Agreement constitutes a binding legal obligation and that he is estopped form raising any claim on the basis that he has not obtained such advice.
5.14 Public Notices
Each Peak Management Shareholder acknowledges and agrees in favour of Parent and Purchaser that: all public notices to third parties and all other publicity concerning this Agreement, the Acquisition Agreement and the transactions contemplated hereunder and thereunder will be
planned and co-ordinated by Purchaser, Parent and/or Peak in accordance with the Acquisition Agreement; and such Peak Management Shareholder shall not act unilaterally in this regard without the prior approval of Parent and Purchaser unless such disclosure is required under applicable Securities Laws and stock exchange rules in circumstances where prior consultation with Parent and Purchaser is not practicable.
5.15 Execution and Delivery
This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument. The parties will be entitled to rely upon delivery of an executed facsimile or similar executed electronic copy of this Agreement, and such facsimile or similar executed electronic copy will be legally effective to create a valid and binding agreement among the parties.
[Signature Page Follows]
|
WITNESSES: |
|
PEAK MANAGEMENT SHAREHOLDER | |
|
|
|
| |
|
|
|
| |
|
|
|
| |
|
|
|
| |
|
Name of Witness: |
|
| |
|
|
|
| |
|
|
|
| |
|
|
|
CLEAN HARBORS, INC. | |
|
|
|
| |
|
|
|
| |
|
|
|
Per: |
|
|
|
|
|
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
|
|
|
|
Title: Executive Vice President, |
|
|
|
|
Chief Financial Officer and Treasurer |
|
|
|
| |
|
|
|
CLEAN HARBORS INDUSTRIAL SERVICES CANADA, INC. | |
|
|
|
| |
|
|
|
| |
|
|
|
Per: |
|
|
|
|
|
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
|
|
|
|
Title: Executive Vice President, |
|
|
|
|
Chief Financial Officer and Treasurer |
[Signature Page to Voting and Lock-Up Agreement]
SCHEDULE A
PEAK MANAGEMENT SHAREHOLDER INFORMATION
Pursuant to Section 1.1(a) of the Agreement, each Peak Management Shareholder is the sole legal and sole beneficial owner of, directly or indirectly, has sole voting power over, sole power of disposition of, sole control and sole direction over such Peak Common Shares and Peak Options as set forth below opposite each such shareholder’s name, and sole power to agree to all of the matters set forth in the Agreement, except as set out below
|
Peak Management |
|
Peak |
|
Peak |
|
|
|
|
|
|
|
|
|
[ ] |
|
[ ](1) |
|
[ ] |
|
Notes:
(1) [ ]
Pursuant to Section 1.1(a) of the Agreement, each Peak Management Shareholder has good and marketable title to its Peak Common Shares and Peak Options, free and clear of any and all liens, pledges, mortgages, charges, restrictions, security interests, encumbrances, adverse claims and demands or rights of others of any nature or kind, except as set out below:
Peak Management Shareholder
|
[NAME] |
1. |
[DESCRIPTION] |
Pursuant to Section 5.6 of the Agreement, address for service for all above-listed Peak Management Shareholders is as follows:
|
c/o Peak Inc. |
|
[ADDRESS] |
|
Attention: [ ] |
SCHEDULE B
ACQUISITION AGREEMENT