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EXHIBIT 2.1
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ASSET PURCHASE AGREEMENT
BY AND BETWEEN
MED/WASTE, INC.
AND
ENVIRONMENTAL WASTE REDUCTIONS, INC.
Dated as of September 9, 1997
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT dated as of September 9, 1997 (this "Agreement")
among MED/WASTE, INC., a Delaware corporation (the "Purchaser"), ENVIRONMENTAL
WASTE REDUCTIONS, INC., a Georgia corporation (the "Seller") and, for purposes
of Article VII only, ▇▇▇▇▇ ▇. ▇▇▇▇, a resident of the State of Georgia ("▇▇▇▇").
W I T N E S S E T H :
WHEREAS, Seller desires to sell substantially all of its assets and
properties related to the disposal of biomedical waste generated by hospitals
and other medical care providers conducted by Seller at its locations in
Atlanta, Savannah and Augusta, Georgia and Lebanon, Tennessee (the "Business"),
and Purchaser desires to purchase such assets and properties, upon the terms and
conditions hereinafter set forth; and
WHEREAS, Seller is a debtor-in-possession in a case under Chapter 11 of
Title 11 of the United States Code (the "Bankruptcy Code") pending in the United
States Bankruptcy Court for the Northern District of Georgia (the "Bankruptcy
Court") as Case No. 96-78457 (the "Bankruptcy Case");
NOW, THEREFORE, in consideration of the mutual benefits to be derived and
the representations and warranties, conditions and promises herein contained,
and intending to be legally bound hereby, Purchaser and Seller hereby agree as
follows:
ARTICLE I
GENERAL
SECTION 1.01 SALE AND PURCHASE OF THE ASSETS. For the consideration
hereinafter provided, and subject to the terms and provisions of this Agreement,
Seller hereby agrees to sell, convey, transfer, assign and deliver to Purchaser
at Closing (as defined in Article V hereof) all of Seller's rights in and to the
following assets (collectively, the "Assets"), pursuant to Section 363 of the
Bankruptcy Code, free and clear of all liens, encumbrances, security interests,
rights of setoff and other claims of whatever nature, except those liabilities
to be assumed by Purchaser pursuant to Section 1.04 hereof and Liens permitted
pursuant to Section 2.01 as set forth on SCHEDULE 1.04 and SCHEDULE 2.01(b):
(a) all of Seller's accounts and notes receivable ("Accounts and Notes
Receivable") existing on the date of Closing (the "Closing Date") relating to
sales by Seller of its products in the ordinary course of business, including
any security held by Seller for payment of any of the foregoing and all rights
with respect to the processing and completion of any work in progress, including
the right to collect and receive all charges for services performed, and
including, without limitation, Accounts billed by
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Seller in the name of Bio-Med Waste Systems Inc., Bio-Med Disposal Services,
Inc., STAT Medical Services, Inc., D&L Medical Waste, Inc., Infectious Waste
Management, Inc. and Georgia Waste Systems, Inc. (a/k/a W.M.I. Medical Waste
Services of North Carolina, Inc. and Waste Management Technologies, Inc.);
(b) all of Seller's cash and cash equivalents, including, without
limitation, proceeds of Accounts and Notes Receivable;
(c) all inventory and supplies of Seller relating to or used in
connection with the ownership or operation of the Business on the Closing Date,
including all inventory in transit or on order and not yet delivered listed in
SCHEDULE 1.01(c) attached hereto;
(d) the supplies, equipment, vehicles, machinery, furniture, fixtures,
leasehold improvements and other tangible personal property used by Seller in
its Business on the Closing Date, including, without limitation, the property
listed in SCHEDULE 1.01(d) attached hereto;
(e) all intellectual property, proprietary knowledge, trade secrets,
doctor lists, referral lists, contracts, agreements, technical information,
quality control data, processes (whether secret or not), methods and other
similar know-how or rights used in the conduct of Seller's Business, including
without limitation the trademarks, service marks, copyrights and patents,
including, without limitation, those listed in SCHEDULE 1.01(e) attached hereto;
(f) all franchises, permits (government and other), insurance policies,
licenses, telephone numbers, customer lists, vendor lists, advertising material
and data, restrictive covenants, choses in action, and similar rights or
interests of, and obligations owing to, Seller concerning its Business, together
with all books, documents, files, papers, records, computer software and other
data relating to its Business, including, without limitation, those set forth in
SCHEDULE 1.01(f) attached hereto;
(g) all of Seller's interests in that certain parcel of real property
described in SCHEDULE 1.01(g) attached hereto;
(h) all claims and causes of action relating to or arising under any of
the Assets, but excluding Excluded Assets set forth on SCHEDULE 1.02;
(i) all prepayments of expenses previously made by Seller;
(j) all documents, information, books and records relating the Assets
or the Seller's Business, wherever located;
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(k) all of Seller's rights as the lessee or sublessee under the leases
and subleases of personal or real property listed in SCHEDULE 1.01(k) attached
hereto; and
(l) all other rights of Seller in and to assets, real, personal or
mixed, tangible or intangible, except as provided in Section 1.02 hereof.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED FOR IN THIS AGREEMENT OR IN THE
▇▇▇▇ OF SALE DELIVERED BY SELLER HEREUNDER, THE ASSETS TO BE TRANSFERRED
HEREUNDER ARE SOLD "AS IS" AND "WHERE IS" AND NEITHER SELLER NOR ANY PARTY
ACTING ON SELLER'S BEHALF MAKES OR HAS MADE TO PURCHASER ANY EXPRESS OR IMPLIED
WARRANTY WITH RESPECT TO THE ASSETS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
SECTION 1.02 EXCLUDED ASSETS. Seller shall retain, and Purchaser shall not
purchase, any assets of Seller specified on SCHEDULE 1.02 attached hereto.
SECTION 1.03 PURCHASE PRICE. (a) The aggregate purchase price to be paid by
the Purchaser (the "Purchase Price") for the Assets to be sold, conveyed,
transferred, assigned and delivered pursuant to this Agreement shall be One
Million Six Hundred Eighty-Seven Thousand Dollars ($1,687,000) and shall be
payable as follows:
(i) On or before September 12, 1997, Purchaser shall deposit
the Purchase Price in cash, certified check, bank cashiers' check or by
wire transfer in an escrow account maintained by Purchaser's counsel.
Payment of the Purchase Price into escrow as herein provided shall
fully discharge Purchaser's obligation to pay the Purchase Price
hereunder.
(ii) The Purchase Price shall be maintained in escrow and,
except for the Retained Amount retained in escrow pursuant to Section
5.01(b), shall be transferred to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq., counsel to
the Committee of Unsecured Creditors appointed by order of the
Bankruptcy Court (the "Creditors Committee"), at the Closing.
(iii) The Purchase Price, less the Retained Amount, shall
be maintained in escrow with ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq. and,
except for the Refunded Amount refunded to Purchaser pursuant
to Section 5.01(b), released only upon the order of the
Bankruptcy Court.
(b) The Purchase Price shall be allocated among the Assets in the
manner determined by Purchaser no later than thirty days from and after the
Closing Date, and the parties hereto shall prepare and file their tax returns
reflecting the transactions
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contemplated hereby in a manner consistent with that allocation of
Purchase Price.
SECTION 1.04 ASSUMPTION OF LIABILITIES. To the extent provided by this
Section 1.04, Purchaser shall assume all liabilities relating to the Business
arising out of events occurring on the Closing Date and thereafter and Seller
shall be responsible for such liabilities arising out of events occurring prior
to the Closing Date. Except as specifically set forth herein, Purchaser shall
assume the following liabilities of Seller and no others:
(a) obligations incurred by Seller in connection with the operation of
the Business and relating to waste disposal and treatment, office and warehouse
space, employee costs and salaries, Seller's accounts payable (including,
without limitation, Seller's obligation to repay debtor-in-possession financing
provided by Purchaser) and other normal and customary expenses of operation, all
as incurred after November 20, 1996 and prior to the Closing Date, as listed in
SCHEDULE 1.04 to be attached hereto on or before the Closing; and
(b) all cure payments and other obligations in connection with the
leases, agreements and subleases of Seller by Purchaser, set forth on SCHEDULE
1.01(k) and SCHEDULE 2.01(b).
SECTION 1.05 EXCLUDED LIABILITIES. Without limiting the generality of
Section 1.04 hereof, Purchaser shall assume no liability for claims for
professional fees and other expenses relating to the administration of the
Bankruptcy Case.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller, for itself
and its successors and assigns, represents and warrants to Purchaser as follows,
and acknowledges and confirms that Purchaser is relying upon such
representations and warranties in connection with the execution, delivery and
performance of this Agreement, notwithstanding any investigation made by
Purchaser or on its behalf:
(a) ORGANIZATION AND STANDING. Seller is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Seller has heretofore delivered to Purchaser complete and correct
copies of its Articles of Incorporation and Bylaws, as amended and in effect on
the date hereof.
(b) TITLE TO ASSETS. Except as set forth on SCHEDULE 2.01(b) attached
hereto, and subject to final approval of this
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Agreement by the Bankruptcy Court, Seller has good title to the Assets, and the
right to sell, transfer, assign and deliver the Assets to Purchaser, free and
clear of all liens, encumbrances, claims, security interests, pledges,
agreements and rights of others (individually, a "Lien" and collectively,
"Liens"), other than Liens for current taxes not yet due and payable or being
contested in good faith by appropriate proceedings or such Liens, if any, as
are not substantial and do not materially detract from the value, or interfere
with the present use, of the properties subject thereto or affected thereby or
otherwise materially impair the operation of the Business.
(c) AUTHORIZATION AND BINDING EFFECT. Subject to final approval of this
Agreement by the Bankruptcy Court, Seller has all requisite power and authority
to execute, deliver and perform this Agreement. This Agreement has been duly and
validly authorized, executed and delivered by Seller and constitutes the legal,
valid and binding obligation of Seller, enforceable in accordance with its
terms, except as may be limited by bankruptcy, reorganization, insolvency and
other similar laws or equitable principles relating to or affecting the
enforcement of rights of creditors generally. All other proceedings required by
the Articles of Incorporation or Bylaws of Seller or otherwise for the execution
and delivery of this Agreement, and for the consummation of the transactions
contemplated hereby, have been duly taken. The execution, delivery and
performance by Seller of this Agreement will not (i) constitute a violation of,
conflict with or constitute a default under any term or provision of the
Articles of Incorporation or Bylaws of Seller, or any material agreement to
which Seller is a party or by which Seller is bound, (ii) constitute a violation
of any statute, ordinance, judgment, order, decree, regulation or rule of any
court, governmental authority or arbitrator or any license, permit or franchise
applicable or relating to the Assets or (iii) result in the creation of any Lien
upon any of the Assets pursuant to the provisions of any of the foregoing.
(d) MATERIAL TRANSACTIONS. Except for actions or events that were
approved by the Bankruptcy Court, during the period from and after July 25,
1997, Seller (i) has not engaged in any transactions or activities outside the
ordinary course of business, (ii) has not sold, or otherwise disposed of any
assets except in the ordinary course of business, (iii) has not declared or paid
any dividend or other distribution (whether in cash, stock, property or any
combination thereof) in respect of shares of capital stock of Seller, or
acquired or redeemed any shares of capital stock of Seller, (iv) has not granted
or otherwise made, or agreed to grant or otherwise make, any increase in the
compensation, in any form, payable to any officer, employee, or agent of Seller,
except such as are payable to personnel other than officers and directors
pursuant to regular compensation reviews in accordance with past practice, (v)
has not loaned any sums to any of its directors, officers, employees or
affiliates of such persons. Since that
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date, there has not been any material change in the business, property,
prospects, operations or condition (financial or otherwise) of Seller; and no
fact, condition or contingency exists or is contemplated or threatened which may
cause such change, and (vi) has conducted its business, operations, activities
and practices in accordance with the Business Plan attached hereto as EXHIBIT A
(the "Business Plan").
(e) EMPLOYEE BENEFIT PLANS. Except as set forth on SCHEDULE 2.01(e)
attached hereto, Seller is not a party to any contract with any labor union or
association, employment or consulting agreement, or pension, profit-sharing,
bonus, deferred compensation, retirement, stock option, medical, health,
disability, insurance, welfare or other employee benefit plan, arrangement,
contract, agreement, program or policy which would in any way be affected by the
transactions contemplated hereby.
(f) ASSETS, LIABILITIES AND OBLIGATIONS. Except as set forth on
SCHEDULE 2.01(f) attached hereto, there are no assets, liabilities or
obligations, direct or indirect, existing or contingent, present or deferred,
secured or unsecured, of Seller except (i) intangible assets and goodwill, (ii)
liabilities and obligations incurred in the ordinary course of business during
the period from and after June 30, 1997, and (iii) assets, liabilities and
obligations disclosed in this Agreement and in the documents delivered to
Purchaser pursuant to the terms and conditions of this Agreement.
(g) REPORTS AND RETURNS. Except as set forth on SCHEDULE 2.01(g)
attached hereto, to the best of Seller's knowledge, all reports and returns
concerning the Business required to be filed by Seller with any governmental
agency have been filed and accurate and true copies of any such reports and
returns have been delivered to Purchaser.
(h) COMPLIANCE WITH LAWS. Except as set forth on SCHEDULE 2.01(h)
attached hereto, Seller is in full compliance with all laws, regulations, rules
and orders relating to Seller's Business and the Assets.
SECTION 2.02 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser, for
itself and its successors and assigns, represents and warrants to Seller as
follows, and acknowledges and confirms that Seller is relying upon such
representations and warranties in connection with the execution, delivery and
performance of this Agreement, notwithstanding any investigation made by Seller
or on its behalf:
(a) DUE ORGANIZATION. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate power and authority to enter into
this Agreement, to perform its
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obligations hereunder and to consummate the transactions contemplated hereby.
(b) AUTHORIZATIONS AND BINDING EFFECT. The execution, delivery and
performance of this Agreement by Purchaser have been duly authorized by the
Board of Directors of Purchaser, and this Agreement constitutes the legal, valid
and binding obligation of Purchaser enforceable in accordance with its terms,
except as may be limited by bankruptcy, reorganization, insolvency and other
similar laws or of equitable principles relating to or affecting the enforcement
of rights of creditors generally. All other corporate proceedings required by
the Articles of Incorporation or the Bylaws of Purchaser or otherwise for the
execution and delivery of this Agreement and the agreements contemplated hereby,
and for the consummation of the transactions contemplated hereby and thereby,
have been duly taken.
(c) NO VIOLATION. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby constitutes or will
constitute a violation of, is or will be in conflict with, or constitutes or
will constitute a default under, any term or provision of the Certificate of
Incorporation or the Bylaws of Purchaser.
(d) RELIANCE UPON PERSONAL KNOWLEDGE. Purchaser acknowledges that,
except as expressly provided herein to the contrary, it is acquiring the Assets
on an "as is, where is" basis and that it is Purchaser's responsibility to
become as familiar as it deems necessary with the Business and its affairs and
financial condition, including without limitation, to inspect and make such
investigation of the Assets and all books, records, accounts, contracts and
documents of or relating to the financial condition, liabilities, results of
operations, business and prospects of the Business as it deems necessary or
advisable and to satisfy itself with such matters and the Purchase Price to be
paid for the Assets. Purchaser acknowledges that it has not entered into this
Agreement, nor will it purchase the Assets, in reliance upon any representations
or warranties made by Seller regarding the Assets or the business, operations,
financial condition or prospects of the Business other than those specifically
set forth in this Agreement.
ARTICLE III
ADDITIONAL COVENANTS AND AGREEMENTS
It is further agreed as follows:
SECTION 3.01 APPROVALS AND CONSENTS. Each of the parties hereto agrees to
cooperate with the other to obtain the consents, approvals and authorizations of
third parties and governmental
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authorities such party determines to be necessary to consummate the transaction
contemplated by this Agreement.
SECTION 3.02 SUPPLEMENTAL INFORMATION. From time to time prior to the
Closing, Seller and Purchaser each agree to promptly supply written information
to the other with respect to any matter hereafter arising which, if existing or
occurring on the date of this Agreement, would have been required to be set
forth or described herein.
SECTION 3.03 BEST EFFORTS TO SATISFY CONDITIONS. Seller agrees to use its
best efforts to cause the conditions to the obligations of Purchaser contained
in Section 4.01 to be satisfied, to the extent that the satisfaction of such
conditions is within the control of Seller, and Purchaser agrees to use its best
efforts to cause the conditions to the obligations of Seller contained in
Section 4.02 to be satisfied, to the extent that the satisfaction of such
conditions is within the control of Purchaser; however, the foregoing shall not
constitute a limitation upon the covenants and obligations of Purchaser or
Seller otherwise expressly set forth in this Agreement.
SECTION 3.04 COOPERATION WITH AUDIT. Seller agrees to cooperate with
Purchaser, before and after the Closing, in the preparation of such audited
financial statements of Seller as may be necessary, in the opinion of
Purchaser's counsel, to permit the Purchaser in connection with its acquisition
of the Assets to comply with the requirements of Regulation S-X, promulgated by
the U.S. Securities and Exchange Commission.
SECTION 3.05 FURTHER ASSURANCES. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use its best efforts to take, or
cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transaction contemplated hereby in accordance
with the terms of this Agreement. In case at any time after the Closing Date any
further action is necessary or desirable to carry out the purposes of this and
the foregoing agreements, the proper officers, directors or other
representatives of each party to this Agreement are hereby directed and
authorized to use their best efforts to effectuate all such action.
SECTION 3.06 ABSENCE OF FINDERS, BROKERS OR INVESTMENT BANKERS. Purchaser
represents and warrants to Seller that it has not used or retained, and is not
liable to, any investment banker, broker or finder, except ▇▇▇▇▇▇▇ ▇▇▇▇▇ of
Taglich Brothers, ▇'▇▇▇▇▇▇, ▇▇▇▇▇▇ & Company, Incorporated, in connection with
the transaction contemplated by this Agreement, and Purchaser is solely
responsible for any fees, expenses and costs associated with ▇▇. ▇▇▇▇▇'▇
services. Seller represents and warrants to Purchaser that neither Seller nor
any of its Affiliates (as hereinafter defined)
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has used or retained, or is liable to, any investment banker, broker or finder
in connection with the transactions contemplated by this Agreement. Purchaser,
on the one hand, and Seller, on the other hand, hereby agree to indemnify and
hold harmless the other from any losses, claims, liabilities or expenses arising
out of or resulting from a breach of their respective representations in the
first or second sentence of this Section 3.06. "Affiliate" shall mean any
individual, corporation, partnership, association, joint stock company, business
trust or unincorporated organization that constitutes an affiliate under Rule
1-02 of the Securities and Exchange Commission under the Securities Act of 1933,
as amended.
SECTION 3.07 PUBLICITY. Prior to the Closing Date, any written news
releases by any party hereto pertaining to this Agreement or the transactions
contemplated hereby shall be submitted to the other party hereto for review and
approval prior to release, and shall be released only in a form approved by such
other party; PROVIDED, HOWEVER, that (a) such approval shall not be unreasonably
withheld, conditioned or delayed and (b) such review and approval shall not be
required of news releases by Seller or Purchaser if prior review and approval
would prevent the timely and accurate dissemination of such press release as
required to comply, in the judgment of counsel, with any applicable law,
regulation, exchange rule or policy.
SECTION 3.08 CONDUCT OF BUSINESS. Until the Closing or until such earlier
date as this Agreement terminates (as provided in Article VI hereof) the Seller
shall conduct the Business only in the normal and ordinary course and in full
compliance with the Business Plan and, without the prior written notice of the
Seller to the Purchaser, shall not with respect to the Business (i) dispose of
or agree to dispose of any of the Assets (except in the normal and ordinary
course of business), (ii) institute any salary or wage increase or other
employment benefit, (iii) pledge or subject any of the Assets to any Lien, (iv)
incur any additional liabilities or obligations (except in the normal and
ordinary course of business), (v) hire, commit to hire or terminate any
employees (except in the normal and ordinary course of business), or (vi) pay
any bonuses.
SECTION 3.09 ACCESS AND MAINTENANCE OF FINANCIAL INFORMATION. Purchaser
agrees to maintain all documents, information, books and records of Seller's
business in substantially the same form as they exist as of the Closing Date,
for a period of five years and to notify Seller of any change in location of
such records at least 30 days in advance. Purchaser further agrees to permit
Seller and Seller's agents and representatives, including, but not limited to,
attorneys and accountants for Seller and the Creditors Committee to have full
access at all reasonable times to all documents, information, books and records
of Seller.
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SECTION 3.10 FINANCIAL STATEMENTS. Seller shall cooperate with and assist
Purchaser and Purchaser's auditors, before and after the Closing, in the
completion of an audit of the financial statements of Seller for the fiscal
years ended December 31, 1995 and 1996, respectively, and for the six months
ended June 30, 1997 so as to facilitate the issuance of audited financial
statements for such periods not later than September 30, 1997.
ARTICLE IV
CONDITIONS OF CLOSING
SECTION 4.01 CONDITIONS OF OBLIGATIONS OF PURCHASER. The obligations of
Purchaser to perform this Agreement are subject to the satisfaction of the
following conditions, each of which may be waived by Purchaser.
(a) APPROVAL OF THE BANKRUPTCY COURT. The Bankruptcy Court shall have
approved the execution, delivery and performance of this Agreement.
(b) REPRESENTATIONS AND WARRANTIES CORRECT; PERFORMANCE OF OBLIGATIONS.
The representations and warranties of Seller herein contained shall be true and
correct as of the Closing Date with the same effect as though made on the
Closing Date (except for changes permitted or contemplated by the terms of this
Agreement or except to the extent that they expressly relate to an earlier
date), except for breaches that either individually or in the aggregate do not
have a material adverse effect on the financial condition, properties,
businesses, prospects or the results of operations of the Business taken as a
whole; Seller shall have performed, in all material respects, all obligations
and complied with all covenants required by this Agreement to be performed or
complied with by it prior to the Closing Date; and Seller shall have delivered
to Purchaser a certificate, dated the Closing Date and signed on its behalf by
its President or Vice President, and its Secretary or an Assistant Secretary or
its Treasurer or an Assistant Treasurer, to both such effects.
(c) INSTRUMENTS OF TRANSFER. Seller shall have delivered to Purchaser a
▇▇▇▇ of sale substantially in the form attached hereto as EXHIBIT B and such
other documentation as shall be reasonably necessary to convey to Purchaser
title to the Assets.
(d) AUTHORIZATION OF AGREEMENT BY SELLER. All actions necessary to
authorize the execution, delivery and performance of this Agreement and all
documents contemplated herein shall have been duly authorized by Seller, and the
Seller shall have full power and right to consummate the transaction
contemplated hereby on the terms provided herein.
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(e) NO INJUNCTION OR RESTRAINING ORDER. No injunction, restraining
order or other order of any federal or state court in the United States that
prevents the consummation of the transactions contemplated hereby shall be
pending or shall have been issued and remain in effect.
(f) NO MATERIAL ADVERSE CHANGE. There shall not have occurred any
material adverse change in the Business between the date of this Agreement and
the Closing Date.
(g) NONCOMPETITION AGREEMENTS. There shall have been executed and
delivered to Purchaser Noncompetition Agreements, in form and substance
reasonably acceptable to Purchaser, by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇.
SECTION 4.02 CONDITIONS OF OBLIGATIONS OF SELLER. The obligations of Seller
to perform this Agreement are subject to the satisfaction of the following
conditions, each of which may be waived by Seller.
(a) REPRESENTATIONS AND WARRANTIES CORRECT; PERFORMANCE OF OBLIGATIONS.
The representations and warranties of the Purchaser herein contained shall be
true and correct as of the Closing Date with the same effect as though made on
the Closing Date (except for changes permitted or contemplated by the terms of
this Agreement or except to the extent that they expressly relate to an earlier
date), except for breaches that either individually or in the aggregate do not
have a material adverse effect on the financial condition, properties,
businesses, prospects or the results of operations of Purchaser taken as a
whole; Purchaser shall have performed, in all material respects, all obligations
and complied with all covenants required by this Agreement to be performed or
complied with by it prior to the Closing Date; and Purchaser shall have
delivered to Seller a certificate or certificates to both such effects, dated
the Closing Date and signed by its President or Vice President, and its
Secretary or an Assistant Secretary or its Treasurer or an Assistant Treasurer.
(b) AUTHORIZATION OF THE AGREEMENT. All action necessary to authorize
the execution, delivery and performance by Purchaser of this Agreement and all
other documents contemplated hereby shall have been duly and validly taken by
the Board of Directors of Purchaser, and Purchaser shall have full power and
right to consummate the transaction contemplated hereby on the terms provided
herein.
(c) DELIVERY OF THE PURCHASE PRICE AND ASSUMPTION OF LIABILITIES.
Purchaser shall have delivered the Purchase Price in escrow, as provided in
Section 1.03(a), and shall have assumed the liabilities of Seller described in
Section 1.04.
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(d) GOVERNMENTAL CONSENTS, AUTHORIZATIONS, ETC. All consents,
authorizations, orders or approvals of, and filings or registrations with, any
governmental commission, board or other regulatory body that are required for or
in connection with the execution and delivery of this Agreement and the
consummation of the transaction contemplated hereby shall have been obtained or
made.
(e) NO INJUNCTION OR RESTRAINING ORDER. No injunction, restraining
order or other order of any federal or state court in the United States that
prevents the consummation of the transaction contemplated hereby shall be
pending or shall have been issued and remain in effect.
ARTICLE V
CLOSING
SECTION 5.01 CLOSING.
(a) DATE OF CLOSING. The closing for the consummation of the
transaction contemplated by this Agreement (the "Closing") shall take place as
soon as practicable following entry of a final, binding Order by the Bankruptcy
Court authorizing and approving the execution, delivery and performance of this
Agreement, on a date and at a time and place as shall be agreed by the parties
hereto. In no event shall the Closing take place later than December 31, 1997,
unless otherwise agreed in writing by the parties hereto.
(b) ESCROW. At the Closing, $100,000 of the Purchase Price (the
"Retained Amount") shall be retained in the Escrow Account established pursuant
to Section 1.03(a)(i) hereof. As soon as practicable following the Closing,
Seller, Purchaser and the Creditors Committee shall determine, and Purchaser's
independent accountants shall confirm, the amount of Seller's ▇▇▇▇▇▇▇▇ for the
month of September, 1997 (the "September ▇▇▇▇▇▇▇▇"). To the extent that the
September ▇▇▇▇▇▇▇▇ are less than $330,000, there shall be refunded to Purchaser
as soon as practicable from such escrow account an amount (the "Refunded
Amount") determined as follows: The product of 2.5 times the amount by which
$330,000 exceeds the September ▇▇▇▇▇▇▇▇.
ARTICLE VI
TERMINATION OF AGREEMENT
SECTION 6.01 RIGHT OF TERMINATION. This Agreement and the transaction
contemplated by this Agreement may be terminated at any time prior to the
Closing Date:
(a) By the mutual consent of both the Purchaser and the Seller.
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(b) By the Purchaser in the event that any of the conditions set forth
in Section 4.01 of this Agreement shall not have been satisfied or waived by
December 31, 1997, or such later date as the parties may agree in writing.
(c) By the Seller in the event that any of the conditions set forth in
Section 4.02 of this Agreement shall not have been satisfied or waived by
December 31, 1997, or such later date as the parties may agree in writing.
SECTION 6.02 NOTICE OF TERMINATION. Notice of termination of this
Agreement, as provided for in this Article VI, shall be given by the party so
terminating to the other parties hereto, in accordance with the provisions of
Section 8.06 of this Agreement.
SECTION 6.03 EFFECT OF TERMINATION. In the event that this Agreement is
terminated pursuant to this Article VI, this Agreement shall become void and of
no further force and effect, without any liability on the part of any of the
parties hereto (or their respective stockholders, directors or officers, if
any), except rights and obligations arising under Section 8.03 hereof.
ARTICLE VII
INDEMNIFICATION
SECTION 7.01 INDEMNITY BY SELLER. From and after the Closing Date, Seller
hereby indemnifies Purchaser and shall hold it harmless from all claims,
demands, actions, assessments, losses, liabilities, damages or costs (including,
without limitation, court costs and attorneys' fees) arising from or related to
the ownership, operation or use of the Assets and the ownership and operation of
the Business prior to the Closing Date (except for liabilities and obligations
of Seller assumed by Purchaser pursuant to the terms of this Agreement).
SECTION 7.02 INDEMNITY BY PURCHASER. From and after the Closing Date,
Purchaser hereby indemnifies and shall hold Seller and ▇▇▇▇ harmless from all
claims, demands, actions, assessments, losses, liabilities, damages or costs
(including, without limitation, court costs and attorneys' fees) arising from or
related to any and all debts, obligations and liabilities of Seller or ▇▇▇▇ that
are assumed by Purchaser pursuant to the terms of this Agreement, or the
ownership, operation or use of the Assets and the ownership and operation of
Purchaser's business from and after the Closing Date. Except as expressly set
forth in this Section 7.02, Purchaser shall not indemnify Seller or any other
person in connection with any claims, demands, actions, assessments, losses,
liabilities, damages or costs.
SECTION 7.03 INDEMNIFICATION PROCEDURE. If any legal proceeding shall be
commenced or any claim or demand shall be
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asserted by any person in respect of which indemnification may be claimed from
an indemnifying party under Sections 7.01 or 7.02, the indemnified party shall
give the indemnifying party written notice of the claim, stating in reasonable
detail the nature and amount of the claim, the name of any third party obligee
and a statement whether the indemnified party intends to defend the claim. This
written notice shall be given upon the earlier to occur of 15 days before the
answer is due or within 30 days after the indemnified party is first made aware
of the claim. Except for the claims set forth on SCHEDULE 7.03 attached hereto,
the defense of any such claim may be undertaken by the indemnified party,
provided that the indemnifying party shall have the right, at its option, (i)
jointly to control the defense of any claim or (ii) solely to control the
defense of any claim, at its own expense, if the indemnified party does not
defend the claim; PROVIDED, HOWEVER, that the indemnifying party shall not admit
the liability of the indemnified party with respect thereto in any such
litigation, compromise or settlement, and any such compromise or settlement
shall include a full release of liability for the indemnified party at no cost
to it. In the event either (a) the indemnifying party elects not to undertake
such defense, (b) the indemnifying party, after electing to undertake such
defense, fails to do so, or (c) the indemnified party shall have received a
written opinion of counsel that representation of the indemnified party and the
indemnifying party by the same counsel would be inappropriate under applicable
standards of professional conduct due to actual or potential differing interests
between them, the indemnified party may elect to employ separate counsel and
assume its defense with respect to such claim or claims at the expense of the
indemnifying party. Participation in the defense of a claim by the indemnifying
party shall not be deemed an admission by such party of any obligation to
indemnify. In the event that any claim is made with regard to the obligations
assumed by Purchaser identified on SCHEDULE 7.03, the indemnifying party shall
have no right to participate in the defense of said claim. Furthermore, the
indemnified party, after ten days notice to the indemnifying party, shall have
the right to settle or compromise such claim without the consent of the
indemnifying party and without obtaining a release of the claim against the
indemnifying party; PROVIDED, HOWEVER, that such settlement shall not be
construed to enlarge or limit the extent of the indemnification requirement
under Section 7.01 or Section 7.02 hereof.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 SCHEDULES. All Schedules to this Agreement not attached hereto
at the time of the execution and delivery of this Agreement by the parties
hereto shall be mutually agreed to by the parties hereto and attached hereto on
or before the Closing.
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SECTION 8.02 BULK SALES LAWS. Purchaser hereby waives compliance by Seller
with any applicable bulk sales laws, and Seller hereby agrees to indemnify and
save Purchaser harmless against any and all losses or expenses, specifically
including, but not limited to, attorneys' fees, arising from or in connection
with such non-compliance.
SECTION 8.03 EXPENSES. Except as otherwise provided in Section 8.04 hereof,
Purchaser and Seller shall pay their own respective expenses incurred in
connection with the negotiation, execution, delivery and performance of this
Agreement, and the Assets shall not be reduced by any such expenses of Seller.
If the Closing shall not occur in accordance with the terms hereof or this
Agreement is terminated, then Purchaser and Seller shall each bear their
expenses separately incurred in connection therewith, except that Purchaser and
Seller shall pay any expenses incurred by the other if the Closing shall not
occur or this Agreement is terminated because of a breach of this Agreement by
such party. Nothing contained in this Section 8.03 shall release any party from
liability for any breach of or default under any term or provision of this
Agreement.
SECTION 8.04 REIMBURSABLE EXPENSES. Seller agrees to pay to Purchaser, as
an administrative expense of Seller's estate, the Reimbursable Expenses (herein
defined) in the event that Purchaser's acquisition of the Assets is not
consummated because such Assets (or substantially all of the Assets) are
acquired by a purchaser other than the Purchaser at a purchase price in excess
of the Purchase Price hereunder. As used herein, the term "Reimbursable
Expenses" shall include the actual, reasonable and necessary costs and expenses
(including reasonable attorneys' and accountants' fees and disbursements)
incurred by the Purchaser, up to but not exceeding the Cap Amount (defined
herein), in connection with negotiating, documenting and obtaining all necessary
approvals of the transactions contemplated by this Agreement, including, without
limitation, accountants' fees incurred in connection with financial statement
audits necessary or appropriate in connection with the transactions contemplated
hereby. As used herein, the term "Cap Amount" means the sum of $100,000 or such
greater amount as may be approved in writing by Seller, Purchaser, and the
Creditors' Committee.
SECTION 8.05 DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are for convenience only and shall not control or affect the meaning
or construction of any provision of this Agreement.
SECTION 8.06 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if (a) delivered by hand, (b) mailed by
registered or certified mail (return receipt requested) or (c) telecommunicated
and immediately confirmed both orally and in writing, to the parties at the
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following addresses (or at such other addresses for a party as shall be
specified by like notice) and shall be deemed given on the date on which so
hand-delivered or so telecommunicated or on the third business day following the
date on which so mailed, if deposited in a regularly-maintained receptacle for
United States mail:
If to Seller or ▇▇▇▇:
Environmental Waste Reductions, Inc.
▇▇▇▇▇ ▇▇▇▇
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Lamberth, Bonapfel, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser:
Med/Waste, Inc.
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
2700 International Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esquire
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 8.07 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
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SECTION 8.08 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia without regard for
principles of conflicts of laws.
SECTION 8.09 ASSIGNABILITY. This Agreement shall not be assignable
otherwise than by operation of law by any party without the prior written
consent of the other parties hereto, and any purported assignment by any party
without the prior written consent of the other parties shall be void, except
that any or all rights of Purchaser hereunder may be assigned by Purchaser to
any subsidiary or affiliate of Purchaser without the consent of Seller.
SECTION 8.10 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
INDEMNIFICATION; CONDITIONS. Unless previously specifically waived by the other
party, the representations and warranties of Purchaser and Seller contained in
Article II hereof shall be deemed to have been made again on and as of the
Closing Date. Without limiting the provisions of Article VII hereof, any legal
proceedings brought by any party under this Agreement, whether alleging a breach
of a representation, warranty or covenant, or pursuant to the indemnification
obligations under Article VII, must be filed by the party claiming
indemnification within five years, plus one day, after the Closing Date (except
with respect to any matter based on fraud, in which case the cause of action
shall expire only upon expiration of the applicable statute of limitations). All
statements contained in any certificate, exhibit or other instrument delivered
by or on behalf of Seller or Purchaser pursuant to this Agreement shall be
deemed to have been representations and warranties made by Seller or Purchaser,
as the case may be, and shall survive the Closing to the extent specified above
and not otherwise.
SECTION 8.11 WAIVERS AND AMENDMENTS. Any term or provision of this
Agreement may be waived at any time by the party that is entitled to the
benefits thereof, and any term or provision of this Agreement may be amended or
supplemented at any time by the mutual consent of Purchaser and Seller, except
that any waiver of any term or condition, or any amendment or supplementation,
of this Agreement must be in writing. A waiver of any breach or failure to
enforce any of the terms or conditions of this Agreement shall not in any way
affect, limit or waive a party's rights hereunder at any time to enforce strict
compliance thereafter with every term or condition of this Agreement.
SECTION 8.12 THIRD PARTY RIGHTS. Notwithstanding any other provision of
this Agreement, this Agreement shall not create benefits on behalf of any
employee of Seller, third party or other person, and this Agreement shall be
effective only as between the parties hereto, their successors and permitted
assigns.
SECTION 8.13 ENTIRE AGREEMENT. This Agreement (including the Exhibits,
Schedules, documents and instruments referred to
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herein) constitutes the entire agreement, and supersedes all other prior
agreements and understandings, both written and oral, among the parties, or any
of them with respect to the subject matter hereof.
SECTION 8.14 TIME OF ESSENCE. Wherever time is specified for the doing or
performance of any act or the payment of any funds, time shall be considered of
the essence.
SECTION 8.15 LITIGATION; PREVAILING PARTY. In the event of any litigation
with regard to this Agreement, the prevailing party or parties shall be entitled
to receive from the non-prevailing party or parties, and the non-prevailing
party or parties shall immediately pay, all reasonable fees and expenses of
counsel for the prevailing party or parties.
SECTION 8.16 SPECIFIC PERFORMANCE; REMEDIES. The parties hereto agree that,
in the event that any of the provisions of this Agreement required to be
performed after the Closing or the termination of this Agreement, as the case
may be, are not performed in accordance with their specific terms or are
otherwise breached, the non-breaching parties would be irreparably damaged
thereby and that monetary damages would not provide an adequate remedy in such
event. Accordingly, in addition to any other remedy to which the non-breaching
parties may be entitled at law or in equity, such parties shall be entitled to
specific performance and injunctive relief to prevent breaches of the provisions
of this Agreement required to be performed after the Closing or the termination
of this Agreement, as the case may be, and specifically to enforce such terms
and provisions in any action instituted in any court of the United States or any
state thereof having subject matter jurisdiction thereof.
SECTION 8.17 SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement shall be declared invalid, void or
unenforceable, the remainder of the provisions of this Agreement shall remain in
full force and effect.
[Signatures Next Page]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
PURCHASER:
MED/WASTE, INC.
By:
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
President and Chief Executive Officer
Attest:
------------------------------
Secretary
(CORPORATE SEAL)
SELLER:
ENVIRONMENTAL WASTE REDUCTIONS, INC.
By:
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Chairman, Board of Directors
Attest:
-------------------------------
Secretary
(CORPORATE SEAL)
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
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Schedule 1.02
(1) "Avoidance Claims," being any and all claims of Seller against any entity
for the avoidance or subordination of any transfer, or subordination of or
objection to any claim, pursuant to Sections 510, 542, 543, 544, 545, 547,
548, 549, 551 and/or 553 of the Bankruptcy Code, and the recovery of same
pursuant to Section 550 of the Bankruptcy Code, including, without
limitation, any claims against any insider of the Debtor, as that term is
defined in Section 1.01 of the Bankruptcy Code, and any and all claims
against NMWT Properties Holding, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, STAT Medical, Inc.
and ▇▇▇▇▇▇ ▇▇▇▇▇▇, and any other entity controlled by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
(2) Any and all tax refunds of Seller; and
(3) Refunds of insurance premiums in connection with cancelled insurance
policies.