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STOCK PURCHASE AGREEMENT EXHIBIT 99.1
This Agreement is entered into as of September 3, 1998 by Stericycle, Inc.,
a Delaware corporation with its principal executive offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("Stericycle"), and Rethmann GmbH & Co.
Verwaltungs-und Beteiligungs-KG, a German KG with its principal executive
offices at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ("Rethmann") and Lobbe
Holding GmbH & Co., a German KG with its principal executive offices at
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇ ▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("Lobbe") (Rethmann and Lobbe
together, "Sellers").
Background
A. Sellers own all of the issued and outstanding shares of stock of Waste
Systems, Inc., a Delaware corporation with its principal executive offices at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("WSI"), consisting of
100 shares of common stock, no par value (the "WSI Shares")
B. WSI is the majority stockholder of 3CI Complete Compliance Corporation,
a Delaware corporation with its principal executive offices also at ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("3CI").
C. WSI owns 5,104,448 shares of 3CI's common stock, par value $.01 per
share (the "3CI Common Stock"), representing 52.2% of the 9,778,825 shares of
3CI's common stock issued and outstanding as of July 24, 1998.
D. WSI owns 7,750,000 shares of 3CI's preferred stock (the "3CI Preferred
Stock"), consisting of 7,000,000 shares of 3CI's preferred stock designated as
Series B Preferred Stock and 750,000 shares of 3CI's preferred Stock designated
as Series C Preferred Stock.
E. WSI has made various interest-bearing loans and non-interest bearing
cash advances to 3CI which, as consolidated, reduced, modified and extended, are
evidenced by a Revolving Promissory Note dated September 30, 1995, from 3CI to
WSI, as amended (as amended, the "3CI Note") in the original principal amount of
$8,000,000. The 3CI Note was originally due on December 31, 1996, but 3CI has
requested and WSI has granted extensions of the maturity date, and the 3CI Note
is now due on September 30, 1998. The principal balance of the 3CI Note as of
June 30, 1998, as recorded on 3CI's books, was $4,898,699.
F. WSI has an account receivable from 3CI (the "3CI Receivable") with a
balance as of July 31, 1998, as recorded on 3CI's books, of $466,906.
G. Stericycle desires to purchase all of the WSI Shares from Sellers, and
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Sellers desire to sell all of the WSI Shares to Stericycle, upon the terms and
subject to the conditions of this Agreement.
Now, therefore, in consideration of their mutual promises and intending to
be legally bound, the parties agree as follows:
ARTICLE 1
DEFINITIONS
Certain capitalized terms used in this Agreement have been defined in the
preceding provisions, and their definitions are incorporated by reference. In
addition, the following terms have these meanings::
CLOSING is defined in Section 3.1.
CLOSING DATE means the date that Closing occurs.
CLOSING DOCUMENTS means, in respect of a Party, the documents, instruments
and agreements that it is required to execute, deliver and perform at Closing
pursuant to the terms of this Agreement.
CONSENT means any approval, consent, ratification, waiver or other
authorization.
CONTEMPLATED TRANSACTION means the transactions contemplated by this
Agreement, i.e., (i) Stericycle's purchase of the WSI Shares from Sellers and
Sellers' sale of the WSI Shares to Stericycle and (ii) the Parties' execution,
delivery and performance of their respective Closing Documents.
CONTRACT means any legally binding contract, agreement, obligation, promise
or undertaking (whether written or oral, and whether express or implied).
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended, and the
related rules and regulations issued by the SEC.
EXCLUSIVE NEGOTIATION AND FIRST REFUSAL RIGHTS means the rights, for a
period of 60 days after the Closing Date:
(a) to negotiate with Stericycle, on an exclusive basis, to
purchase one or more regulated medical waste treatment units utilizing
Stericycle's proprietary electro-thermal-deactivation technology for
installation and operation in Germany; and
(b) to match (i.e., a right of first refusal in respect of) any
reasonable proposal to purchase one or more regulated medical waste
treatment units
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utilizing Stericycle's proprietary electro-thermal-deactivation technology,
for installation and operation in Germany, that Stericycle may receive from
any Person with whom it negotiated or had discussions prior to the date of
this Agreement.
GOVERNMENTAL BODY means (i) any federal, state, local, municipal, foreign
or other government and (ii) any governmental or quasi-governmental body of any
kind (including any administrative or regulatory agency, department, branch,
commission or other entity).
KNOWLEDGE means actual knowledge of a particular fact or other matter.
LAW means any law, ordinance, code, regulation or rule of any Governmental
Body or any principle or rule of common law.
LIABILITY means any liability or obligation, whether known or unknown,
absolute or contingent, liquidated or unliquidated, or due or to become due.
LISTED AGREEMENT means a Contract listed on the attached EXHIBIT A. The
term "Listed Agreement" does not include:
(a) any amendment, modification, supplement or extension of any
Contract listed on the attached EXHIBIT A; or
(b) any attachment, schedule or exhibit to any Contract listed on the
attached EXHIBIT A; or
(c) any document, agreement or other instrument incorporated by
reference in or otherwise referred to by any Contract listed on the
attached EXHIBIT A.
LIEN means any lien, security interest, claim, community property interest,
equitable interest, option, pledge, right of first refusal or other encumbrance
or restriction of any kind, including any restriction on use, voting, transfer,
receipt of income or exercise of any other attribute of ownership.
MATERIAL ADVERSE EFFECT means, in respect of a Party or 3CI, an event or
condition that causes a material adverse effect on its business, financial
condition, results of operations or prospects, as the case may be, taken as a
whole.
NOTICE means any notice, demand, charge, complaint or other communication
from any Person.
ORDER means any order, judgment, decree, ruling, consent decree, settlement
agreement, stipulation, injunction or subpoena entered or issued by any court,
Governmental Body or arbitrator.
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ORDINARY COURSE OF BUSINESS means, in respect of WSI or 3CI, an action
taken by it which (i) is consistent with the its past practices and is taken in
the ordinary course of normal day-to-day operations and (ii) is not required by
applicable Law or its Organizational Documents to be authorized by its board of
directors or stockholders.
ORGANIZATIONAL DOCUMENTS means, in respect of a Party, WSI or 3CI, its
certificate of incorporation and by-laws or other governing documents, each as
amended to date.
OTHER 3CI INTERESTS means, exclusive of the ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ Note and 3CI Receivable, (i) all of WSI's other interests, if any, in
or relating to 3CI (including, but not limited to, any security interest in or
mortgage on 3CI's assets granted by 3CI as security for its payment of ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (▇▇ ▇▇▇▇)), (▇▇) all of WSI's claims, rights and causes
of action of any kind against 3CI and (iii) all of WSI's rights arising from or
in respect of its ownership of the ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
Note or 3CI Receivable (for example, antidilution rights under any settlement
agreement or other Contract).
PARTY means Stericycle or either Seller, and PARTIES means Stericycle and
Sellers.
PERMIT means any approval, consent, license, permit, registration,
certificate, waiver or other authorization issued, granted or otherwise made
available by any Governmental Body.
PERSON means any individual, corporation, general or limited partnership,
limited liability company, joint venture, association, organization, estate,
trust or other entity or any Governmental Body.
PURCHASE PRICE is defined in Section 2.1.
SEC means the U.S. Securities and Exchange Commission.
SECURITIES ACT means the Securities Act of 1933, as amended, and the
related rules and regulations issued by the SEC.
SUIT means any action, suit, proceeding, arbitration, audit, hearing or
investigation (whether civil, criminal, administrative or investigative in
nature, and whether formal or informal) by, before or in any court, Governmental
Body or arbitrator.
THREATENED means, in respect of a Suit, that Notice has been given, or
another event has occurred or any other circumstance exists, that would lead a
prudent individual to conclude that the Suit is likely to be initiated or
otherwise pursued in the future.
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3CI INTERESTS means the 3CI Common Stock, 3CI Preferred ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ Receivable and ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇.
▇▇▇ SECURITIES FILINGS is defined in Section 4.8.
ARTICLE 2
PURCHASE PRICE
2.1 PURCHASE PRICE. At Closing, Sellers shall sell and transfer the WSI
Shares to Stericycle, and Stericycle shall purchase the WSI Shares from Sellers
on the terms and subject to the conditions of this Agreement. The purchase price
for the WSI Shares (the "Purchase Price") shall be (i) $10,000,000 in cash,
one-half of which shall be paid to each Seller, and (ii) the grant to Sellers on
a joint basis of Exclusive Negotiation and First Refusal Rights.
2.2 PAYMENT. At Closing, Stericycle shall pay the cash portion of the
Purchase Price to Sellers by wire transfer to each Seller of $5,000,000 in
immediately available funds in accordance with the wire transfer instructions on
the attached EXHIBIT B.
ARTICLE 3
CLOSING
3.1 CLOSING. Closing of the Contemplated Transaction ("Closing") shall take
place at 10:00 a.m. Houston time as soon as practicable, but in no event later
than September 30, 1998 at the offices of Sellers' American counsel, ▇▇▇▇▇ &
▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or at other
place, or in any other manner (e.g., the exchange of signed documents by
overnight courier service), that the Parties may agree on.
3.2 CLOSING EVENTS. At Closing, the following events shall take place, all
of which shall be considered to take place concurrently:
(a) DELIVERIES BY SELLERS. Sellers shall make the following deliveries
to Stericycle:
(1) Sellers shall deliver the certificates representing the WSI
Shares on WSI's stock transfer books, duly endorsed for transfer to
Stericycle (or accompanied by duly executed stock powers);
(2) Sellers shall deliver (i) the certificate or certificates
registered in WSI's name representing the 3CI Common Stock and 3CI
Preferred Stock on 3CI's stock transfer books and (ii) the 3CI Note;
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(3) Sellers shall deliver the resignations, effective as of the
Closing Date, of the incumbent officers and directors of WSI;
(4) Sellers shall deliver the resignations, effective as of the
Closing Date, of ▇▇. ▇▇▇▇▇▇ Kook, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ Pues as
directors of 3CI;
(5) Sellers shall deliver a certificate, signed by a duly
authorized officer of each Seller, certifying to Stericycle that the
representations and warranties in Article 4 are true and correct in all
material respects at Closing as if made at and as of Closing;
(6) each Seller shall deliver either the opinion of its German
counsel, addressed to Stericycle and dated as of the Closing Date,or
such other assurances and evidence as are customary under German Law
and satisfactory to Stericycle in its reasonable judgment from an
American business perspective, to the effect that: (i) it is duly
organized as a KG or GmbH under German Law; (ii) its execution,
delivery and performance of this Agreement was duly authorized by all
corporate or partnership action required under its Organizational
Documents and does not violate any applicable German Laws or Orders;
and (iii) the officer or officers signing this Agreement on its behalf
and all Closing Documents in its name was duly authorized to do so;
(7) Sellers shall deliver any other documents and instruments that
Stericycle or its counsel reasonably request.
All documents and instruments delivered pursuant to this Section shall be in
a form approved by Stericycle on the advice of its counsel.
(b) DELIVERIES BY STERICYCLE. Stericycle shall make the following
deliveries to Sellers:
(1) Stericycle shall make the wire transfers to Sellers required to
be made under Section 2.2;
(2) Stericycle shall deliver its written grant to Sellers on a
joint basis of Exclusive Negotiation and First Refusal Rights;
(3) Stericycle shall deliver a copy, certified to Sellers as true
and correct by a duly authorized officer of Stericycle, of resolutions
duly adopted by its board of directors authorizing Stericycle's
execution, delivery and performance of this Agreement;
(4) Stericycle shall deliver a certificate, signed by a duly
authorized officer of Stericycle, certifying to Sellers that the
representations and
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warranties in Article 5 are true and correct in all material respects
at Closing as if made at and as of Closing;
(5) Stericycle shall deliver an incumbency certificate, signed by a
duly authorized officer of Stericycle and containing a specimen
signature or signatures, regarding the officer or officers of
Stericycle signing all Closing Documents delivered in its name;
(6) Stericycle shall deliver an opinion of its counsel, ▇▇▇▇▇▇▇ and
Colmar, dated as of the Closing Date, to the effect that: (i)
Stericycle is duly organized as a corporation under Delaware Law; (ii)
its execution, delivery and performance of this Agreement was duly
authorized by all corporate action required under its Organizational
Documents and does not violate any applicable Laws or Orders; and (iii)
the officer or officers signing this Agreement on its behalf and all
Closing Documents in its name was duly authorized to do so; and
(7) Stericycle shall deliver any other documents and instruments
that Sellers or their American counsel reasonably request.
All documents and instruments delivered pursuant to this Section shall be
in a form approved by Sellers on the advice of their American counsel,
▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
ARTICLE 4
SELLERS' REPRESENTATIONS AND WARRANTIES
In order to induce Stericycle to enter into this Agreement, Sellers jointly
and severally represent and warrant to Stericycle that, except for any fact or
matter contained in or disclosed by any Listed Agreement, the statements in this
Article 4 are true and correct in all material respects as of the date of this
Agreement, and will be true and correct in all material respects at Closing as
if made at and as of Closing:
4.1 SELLERS.
(a) Each Seller has the corporate or partnership right, power,
authority and capacity to execute and deliver this Agreement and its
Closing Documents and to perform its obligations under this Agreement and
its Closing Documents. Each Seller's execution, delivery and performance of
this Agreement and its Closing Documents has been duly authorized by all
necessary corporate or partnership action.
(b) This Agreement constitutes, and upon each Seller's execution and
delivery of its Closing Documents, each of its Closing Documents will
constitute, a legal, valid and binding obligation of each Seller,
enforceable
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against it under both American and German Law in accordance with its terms
(except as enforcement may be limited by applicable bankruptcy, insolvency
or similar Laws affecting the enforcement of creditors' rights generally,
and by legal and equitable limitations on the availability of specific
remedies).
(c) Each Seller is a KG duly organized, validly existing and in good
standing under the Laws of Germany, with full power and authority to
conduct its business as it is now being conducted, to own or use the
properties and assets that it purports to own or use, and to perform its
obligations under all material Contracts relating to WSI or 3CI to which it
is a party.
4.2 WSI SHARES.
(a) WSI's authorized capital stock consists of 100 shares of common
stock, no par value, and the WSI Shares constitute all of WSI's issued and
outstanding shares. Each Seller is the owner of record, beneficial owner
and holder of one-half of the WSI Shares (i.e., 50 shares of WSI's common
stock, no par value), free and clear of any Liens other than restrictions
on transfer under the Securities Act and state securities Laws.
(b) All of the WSI Shares are duly authorized, validly issued, fully
paid and nonassessable, and were not issued in violation of the Securities
Act or any other Law.
(c) There are no options, warrants, calls, puts, subscription rights,
conversion rights or other Contracts to which WSI or either Seller is party
or by which WSI or either Seller is bound providing for the issuance of any
equity or other securities of WSI or (with the exception of this Agreement)
for the purchase or sale of any WSI Shares. There are no shareholders
agreements, buy-sell agreements, voting trusts, pledge agreements or other
Contracts relating to the voting or disposition of any of the WSI Shares.
4.3 NO VIOLATION. Neither Sellers' execution, delivery and performance of
this Agreement nor the consummation the Contemplated Transaction will, either
directly or indirectly (and with or without Notice or the passage of time or
both):
(a) violate or conflict with any Organizational Document of either
Seller or WSI or 3CI or any resolution adopted by the board of directors or
stockholders of either Seller or WSI or 3CI;
(b) result in a breach of or default by either Seller or WSI or 3CI
under any material Contract;
(c) result in the imposition or creation of a Lien upon any of the 3CI
Interests or any of the assets of 3CI;
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(d) violate or conflict with, or give any Governmental Body or other
Person the right to challenge the Contemplated Transaction or to obtain any
other relief under, any Law or Order to which either Seller or WSI or 3CI
is subject; or
(e) violate or conflict with, or give any Governmental Body the right
to revoke, withdraw, suspend, cancel, terminate or modify, any Permit
issued to or held by 3CI.
4.4 NO CONSENT REQUIRED. Neither Sellers' execution, delivery and
performance of this Agreement nor the consummation of the Contemplated
Transaction require any Notice to, filing with, Permit from or other Consent of
any Governmental Body or other Person.
4.5 NO SUITS. There is no pending or, to Sellers' Knowledge, Threatened
Suit that challenges or seeks damages or other relief in connection with the
Contemplated Transaction or that could have the effect of preventing, delaying,
making illegal or otherwise interfering with the Contemplated Transaction.
4.6 3CI INTERESTS OF WSI.
(a) WSI is the owner of record, beneficial owner and holder of the 3CI
Common Stock and 3CI Preferred Stocks, free and clear of any Liens other
than restrictions on transfer under the Securities Act and state securities
Laws.
(b) The 3CI Common Stock and 3CI Preferred Stock are duly authorized,
validly issued and fully paid and nonassessable, and were not issued in
violation of the Securities Act or any other Law.
(c) The 3CI Preferred Stock constitutes all of 3CI's issued and
outstanding shares of preferred stock.
(d) There are no shareholders agreements, buy-sell agreements, voting
trusts, pledge agreements or other Contracts relating to or affecting the
voting or disposition of the 3CI Common Stock or 3CI Preferred Stock.
(e) WSI is the owner and holder of the 3CI Note, free and clear of any
Liens. The 3CI Note was duly authorized and issued by 3CI and evidences
bona fide indebtedness of 3CI to WSI for loans and cash advances that WSI
actually made to 3CI. The unpaid balance of and accrued interest due under
the 3CI Note is correctly stated on 3CI's books and records in the recorded
amounts.
(f) WSI is owner of the 3CI Receivable, free and clear of any Liens.
The 3CI Receivable represents bona fide indebtedness of 3CI to WSI for
expenses that WSI actually incurred on 3CI's behalf or cash advances that
WSI actually made to 3CI. The balance of the 3CI Receivable is correctly
stated on 3CI's books
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and records in the recorded amount.
4.7 WSI FINANCIAL CONDITION. As of Closing, WSI's assets shall consist of
the 3CI Interests, and its Liabilities shall not exceed $100,000.
4.8 SEC FILINGS. To Sellers' Knowledge (after, among other things, due
inquiry of each of WSI's officers and directors and 3CI's principal officers):
(a) since December 31, 1994, 3CI has filed with the SEC all
registration statements, reports on Form 10-K, 10-Q and 8-K, proxy
statements and information statements, and other documents that it was
required to file under the Securities Act or the Exchange Act (the "3CI SEC
Filings");
(b) as of their respective dates of filing with the SEC, none of the
3CI SEC Filings contained an untrue statement of a material fact or omitted
to state any material fact necessary to make any statement of a material
fact that it contained, in light of the circumstances in which made, not
misleading; and
(c) when filed with the SEC, each of the 3CI SEC Filings complied in
all material respects with the applicable requirements of the Securities
Act or the Exchange Act, as applicable.
4.9 ABSENCE OF CERTAIN CHANGES. To Sellers' Knowledge (after, among other
things, due inquiry of each of WSI's officers and directors and 3CI's principal
officers):
(a) since December 31, 1997, 3CI has not has engaged in any transaction
outside of its Ordinary Course of Business (except as disclosed in any 3CI
SEC Filing prior to the date of this Agreement);
(b) since December 31, 1997, no event has occurred or condition has
existed which has had a Material Adverse Effect on 3CI (except as disclosed
in any 3CI SEC Filing prior to the date of this Agreement); and
(c) since December 31, 1997, no event has occurred or condition has
existed which has specific application to 3CI (other than general economic
or industry conditions) and which reasonably would be expected to have a
Material Adverse Effect on 3CI in the future.
4.10 DISCLOSURE.
(a) To Sellers' Knowledge, no representation and warranty of Sellers in
this Article 4 contains an untrue statement or omits to state any material
fact necessary to make any statement in the representation and warranty, in
light of the circumstances in which made, not misleading.
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(b) To Sellers' Knowledge, no Notice given pursuant to Section 6.3 will
contain an untrue statement or omit to state any material fact necessary to
make any statement in the Notice, in light of the circumstances in which
made, not misleading.
ARTICLE 5
STERICYCLE'S REPRESENTATIONS AND WARRANTIES
In order to induce Sellers to enter into this Agreement, Stericycle
represents and warrants to Sellers that the statements in this Article 5 are
true and correct in all material respects as of the date of this Agreement, and
will be true and correct in all material respects on the Closing Date as if made
at and as of Closing:
5.1 AUTHORITY. Stericycle has the corporate right, power, authority and
capacity to execute and deliver this Agreement and its Closing Documents and to
perform its obligations under this Agreement and its Closing Documents.
Stericycle's execution, delivery and performance of this Agreement and its
Closing Documents has been duly authorized by all necessary corporate action.
5.2 ENFORCEABILITY. This Agreement constitutes, and upon Stericycle's
execution and delivery of its Closing Documents, each of its Closing Documents
will constitute, a legal, valid and binding obligation of Stericycle,
enforceable against it in accordance with its terms (except as enforcement may
be limited by applicable bankruptcy, insolvency or similar Laws affecting the
enforcement of creditors' rights generally, and by legal and equitable
limitations on the availability of specific remedies).
5.3 ORGANIZATION. Stericycle is a corporation duly organized, validly
existing and in good standing under the Laws of the State of Delaware, with full
corporate power and authority to conduct its business as it is now being
conducted, to own or use the properties and assets that it purports to own or
use, and to perform its obligations under all Contracts.
5.4 NO VIOLATION. Neither Stericycle's execution, delivery and performance
of this Agreement nor the consummation the Contemplated Transaction will, either
directly or indirectly (and with or without Notice or the passage of time or
both):
(a) violate or conflict with any Organizational Document of Stericycle
or any resolution adopted by its board of directors or stockholders;
(b) result in a breach of or default by Stericycle under any Contract;
or
(c) violate or conflict with, or give any Governmental Body or other
Person the right to challenge the Contemplated Transaction or to obtain any
other relief under, any Law or Order to which Stericycle is subject.
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5.5 NO CONSENT REQUIRED. Except for post-Closing reports and disclosures to
comply with applicable securities Laws, neither Stericycle's execution, delivery
and performance of this Agreement nor the consummation of the Contemplated
Transaction require any Notice to, filing with, Permit from or other Consent of
any Governmental Body or other Person.
5.6 NO SUITS. There is no pending or, to Stericycle's Knowledge, Threatened
Suit that challenges or seeks damages or other relief in connection with the
Contemplated Transaction or that could have the effect of preventing, delaying,
making illegal or otherwise interfering with the Contemplated Transaction.
5.7 INVESTMENT EXPERIENCE AND INTENT.
(a) Stericycle is an "accredited investor" as defined in Rule 501(a)
under the Securities Act. Stericycle has the business and financial
experience to give it the capacity to protect its own interests in
connection with a purchase of the WSI Shares.
(b) Stericycle is acquiring the WSI Shares for its own account as
principal, for investment purposes, and not with a present view to the
further sale or distribution of the WSI Shares.
(c) Stericycle acknowledges that its purchase of the WSI Shares will
not have been registered under the Securities Act or registered or
qualified under any state securities Laws in reliance by Sellers on
specific exemptions from registration or qualification that may depend
upon, among other things, the bona fide nature of Stericycle's investment
intent.
(d) Stericycle acknowledges that the WSI Shares may have to be held
indefinitely and may not be sold, transferred or otherwise disposed of
unless the sale or other disposition is covered by an effective
registration statement under the Securities Act and applicable state
securities Laws or is exempt from registration.
(e) Stericycle acknowledges that, on the basis of the 3CI SEC Filings
and the information about WSI and 3CI available to it pursuant to Section
6.2, Stericycle will have had access to and will have acquired sufficient
information about WSI to reach an informed and knowledgeable decision to
acquire the WSI Shares.
5.8 FINANCIAL CAPACITY. Stericycle will have the financial capacity as of
the Closing Date to satisfy its financial obligations under Sections 2.2 and
3.2(b)(1).
5.9 DISCLOSURE. To Stericycle's Knowledge, no representation and warranty
of Stericycle in this Article 5 contains an untrue statement or omits to state
any material fact necessary to make any statement, in light of the circumstances
in
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which made, not misleading.
ARTICLE 6
EVENTS PRIOR TO CLOSING
6.1 CONDUCT OF BUSINESS. Pending Closing (to-wit, from the date of this
Agreement until Closing), Sellers shall cause WSI to operate, and shall cause
WSI to cause 3CI to operate, only in the Ordinary Course of Business (except, in
the case of WSI, for distributions, payments and other transfers by WSI
necessary to avoid any inaccuracy in or breach of Sellers' representation and
warranty in Section 4.7).
6.2 ACCESS TO INFORMATION. Pending Closing, Sellers shall cause WSI, and
shall cause WSI to cause 3CI, (i) to give Stericycle and its representatives
access during normal business hours (but without unreasonable interference with
operations) to the respective offices and facilities and books and records and
other documents of WSI and 3CI, (ii) to make the principal officers of WSI and
3CI and key employees of 3CI agreed to by Stericycle and Sellers available for
questioning and (iii) otherwise cooperate with Stericycle in its due diligence
activities. Sellers shall cause WSI to cause 3CI to furnish Stericycle and its
representatives with all information and copies of all documents that Stericycle
and its representatives reasonably request in accordance with the
confidentiality agreement between 3CI and Stericycle that they entered into in
August 1998.
6.3 NOTICE OF DEVELOPMENTS. Pending Closing, Sellers shall promptly give
Notice to Stericycle of: (i) any fact or circumstance of which Sellers become
aware that causes or constitutes a material inaccuracy in or material breach of
any of their representations and warranties in Article 4 as of the date of this
Agreement; (ii) any fact or circumstance of which Sellers become aware that
would cause or constitute a material inaccuracy in or material breach of any of
their representations and warranties in Article 4 if their representations and
warranties were made on and as of the date of occurrence or discovery of the
fact or circumstance; or (iii) the occurrence of any event that may make
satisfaction of the conditions in Sections 7.1(b) and (c) impossible or
unlikely.
6.4 NO NEGOTIATIONS. Pending Closing, Sellers shall not and shall cause WSI
not to directly or indirectly solicit, initiate or encourage any inquiries or
proposals from, discuss or negotiate with, consider the merits of any
unsolicited inquiries or proposals from, or enter into any Contract with, any
Person relating to the sale of all or any of the WSI Shares or 3CI Interests. In
this regard, and subject to Section 6.6 and the Agreed Order entered on August
14, 1998 in Case No. 95-024912 (269th Judicial District, ▇▇▇▇▇▇ County, Texas),
Sellers shall cause WSI to inform 3CI of WSI's concern that the following
actions could have a detrimental effect on the Contemplated Transaction: (i)
entering into any new confidentiality agreement after the date of this Agreement
or (ii) providing any additional confidential information after the date of this
Agreement, pursuant to a confidentiality
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agreement that 3CI signed prior to the date of this Agreement, (A) relating to
customer accounts, customer identities, route structures or key employees or
(B) without the prior approval of WSI, any other confidential information. WSI
shall (i) promptly notify all parties with whom WSI or, to its Knowledge, 3CI
has entered into a confidentiality agreement of the Contemplated Transaction,
(ii) cooperate with Stericycle in a joint press release regarding the
Contemplated Transaction and (iii) make any filings with the SEC required as a
result of entering into this Agreement.
6.5 ETD WASTE TREATMENT UNITS. Pending Closing, Stericycle shall not:
(a) accept any proposal to purchase one or more regulated medical waste
treatment units utilizing Stericycle's proprietary
electro-thermal-deactivation technology, for installation and operation in
Germany, that Stericycle may receive from any Person with whom it
negotiated or had discussions prior to the date of this Agreement; or
(b) enter into negotiations or discussions with any Person with whom it
had not negotiated or had discussions prior to the date of this for the
sale of one or more regulated medical waste treatment units Agreement
utilizing Stericycle's proprietary electro-thermal-deactivation technology
for installation and operation in Germany.
6.6 FIDUCIARY OBLIGATIONS OF 3CI DIRECTORS. Any obligation of Sellers under
this Article 6 or Section 9.3 to cause WSI to cause 3CI to take, or not to take,
a specified action shall be subject to the fiduciary obligations of 3CI's board
of directors.
6.7 WSI FINANCIAL STATEMENTS. WSI shall direct its accountants, ▇▇▇▇▇,
Green & ▇▇▇▇▇, to prepare (i) audited financial statements for WSI for 1997 and
1996 in conformity with U.S. generally accepted accounting principles
consistently applied and (ii) unaudited interim condensed financial statements
for the six-month periods ended June 30, 1998 and 1997 in conformity with U.S.
generally accepted accounting principles consistently applied (including all
adjustments considered necessary for a fair presentation of WSI's financial
position and results of operation). WSI shall direct its accountants to prepare
these audited financial statements and unaudited interim condensed financial
statements as soon as possible. WSI shall also request its accountants (i) to
consent to references to them and to the use of their reports in connection with
the audited financial statements for WSI for 1997 and 1996 in any reports that
Stericycle may file with the SEC under the Exchange Act and in any registration
statements that Stericycle may file with the SEC under the Securities Act
(including, but not limited to, the Registration Statement on Form S-3 that
Stericycle filed on August 4, 1998, as it may be amended [Registration No.
333-60591],) and (ii) to provide any "comfort" letter to the underwriters that
they may require in connection with Stericycle's underwritten public offering
pursuant to the Registration Statement on Form S-3 that it filed on August 4,
1998. Stericycle shall be responsible for payment of the reasonable accounting
fees of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇
▇▇
for their services described in this Section.
ARTICLE 7
CONDITIONS TO CLOSING
7.1 STERICYCLE'S CONDITIONS. Stericycle's obligation to purchase the WSI
Shares and to take the other actions required to be taken by Stericycle at
Closing is subject to the satisfaction of each of the following conditions prior
to or at Closing:
(a) Stericycle shall be reasonably satisfied with the results disclosed
by its due diligence activities relating to the business, financial
condition, results of operations and prospects of WSI and 3CI, and in this
regard, no Liability or obligation directly or explicitly incurred, assumed
or imposed on 3CI or WSI in any of the Listed Agreements shall provide a
basis for Stericycle's not being reasonably satisfied with the results
disclosed by its due diligence activities;
(b) there was no material inaccuracy in or material breach of any of
Sellers' representations and warranties in Article 4 as of the date of this
Agreement, and there would be no material inaccuracy in or material breach
of any of Sellers' representations and warranties if they were made again
at and as of Closing;
(c) Sellers have performed in all material respects all of their
obligations under this Agreement that they are required to perform prior to
or at Closing;
(d) since the date of this Agreement, no Suit has been initiated or
Threatened that challenges or seeks damages or other relief in connection
with the Contemplated Transaction or that could have the effect of
preventing, delaying, making illegal or otherwise interfering with the
Contemplated Transaction;
(e) no claim has been asserted or threatened by any Person that he or
she (or it) (i) is the holder or beneficial owner of or has a right to
acquire or obtain beneficial ownership of any of the WSI Shares or the 3CI
Interests or (ii) is entitled to all or a portion of the Purchase Price;
and
(f) Stericycle's consummation of the Contemplated Transaction will not
violate any Law enacted, adopted or formally proposed or introduced since
the date of this Agreement, or any Order entered or issued since the date
of this Agreement, to which Stericycle is or will become subject.
Stericycle may waive any condition specified in this Section 7.1 by a written
waiver at any time prior to or at Closing.
7.2 SELLERS' CONDITIONS. Sellers' obligation to sell the WSI Shares and to
take
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the other actions required to be taken by Sellers at Closing is subject to the
satisfaction of each of the following conditions prior to or at Closing:
(a) there was no material inaccuracy in or material breach of any of
Stericycle's representations and warranties in Article 5 as of the date
of this Agreement, and there would be no material inaccuracy in or
material breach of any of Stericycle's representations and warranties if
they were made again at and as of Closing;
(b) Stericycle has performed in all material respects all of its
obligations under this Agreement that it is required to perform prior to
or at Closing;
(c) since the date of this Agreement, no Suit has been initiated or
Threatened that challenges or seeks damages or other relief in connection
with the Contemplated Transaction or that could have the effect of
preventing, delaying, making illegal or otherwise interfering with the
Contemplated Transaction; and
(d) Sellers' consummation of the Contemplated Transaction will not
violate any Law enacted, adopted or formally proposed or introduced since
the date of this Agreement, or any Order entered or issued since the date
of this Agreement, to which Sellers are or will become subject.
ARTICLE 8
TERMINATION
8.1 TERMINATION EVENTS. This Agreement may be terminated prior to Closing:
(a) by Stericycle, upon Notice to Sellers, if Sellers breach or
default in the performance of any material obligation under this Agreement
and Stericycle does not waive the breach or default;
(b) by Sellers, upon Notice to Stericycle, if Stericycle breaches or
defaults in the performance of any material obligation under this
Agreement and Sellers do not waive the breach or default;
(c) by Stericycle, upon Notice to Sellers, if (i) any of the
conditions in Section 7.1 is not satisfied as of Closing or (ii)
satisfaction of any condition in Section 7.1 is or becomes impossible
(other than as a result of Stericycle's failure to perform its obligations
under this Agreement), and Stericycle does not waive satisfaction of the
condition;
(d) by Sellers, upon Notice to Stericycle, if (i) any of the
conditions in Section 7.2 is not satisfied as of Closing or (ii)
satisfaction of any condition in Section 7.2 is or becomes impossible
(other than as a result of Sellers' failure to
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perform their obligations under this Agreement), and Sellers do not waive
satisfaction of the condition; or
(e) by written agreement of the Parties.
8.2 EFFECT OF TERMINATION. The Parties' respective rights of termination
under Section 8.1 are in addition to any other rights that the Parties may have
under this Agreement or otherwise, and the exercise of any right of termination
shall not be considered an election of remedies.
ARTICLE 9
MISCELLANEOUS
9.1 EXPENSES. Each Party shall pay its own expenses in connection with the
negotiation and preparation of this Agreement and consummation of the
Contemplated Transaction (including any fees, commissions or similar payments
due to any broker, finder or agent acting on the Party's behalf).
9.2 SURVIVAL OF REPRESENTATIONS. The Parties' respective representations
and warranties in Articles 4 and 5 shall survive Closing. Sellers'
representations and warranties in Sections 4.1, 4.2 and 4.6(a), and Stericycle's
representations and warranties in Section 5.1 and 5.7, shall continue in force
indefinitely. All other representations and warranties in Articles 4 and 5 shall
expire on the first anniversary of the Closing Date.
9.3 PUBLICITY. Except in the case of a disclosure by a Party which, in the
opinion of its counsel, is required by applicable securities Laws (and then only
with prior Notice and a reasonable opportunity to comment by the other Party),
neither Party shall make any public announcement or engage in any other
publicity prior to Closing regarding this Agreement or the Contemplated
Transaction. In the event of any such public disclosure, the Parties shall use
their best efforts to coordinate their respective securities Law filings or
other public announcements. Stericycle shall cause its directors, officers,
employees, agents and advisors, and Sellers shall cause WSI to cause its
directors, officers, employees, agents and advisors and those of 3CI, to keep
the fact of negotiations by the Parties and the existence of this Agreement
confidential.
9.4 CONFIDENTIALITY. Pending Closing, Stericycle shall maintain in
confidence, and cause its directors, officers, employees, agents and advisors to
maintain in confidence, and use only for the purposes contemplated by this
Agreement, all written, oral or other information obtained in confidence from
Sellers,WSI or 3CI in connection with this Agreement or consummation of the
Contemplated Transaction. If the Contemplated Transaction is not consummated,
Stericycle shall return or destroy so much of this information as exists in
written or tangible form as Sellers reasonably requests.
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9.5. NOTICES. All Notices under this Agreement shall be in writing and sent
by certified or registered mail, overnight messenger service, telecopier or
personal delivery, as follows:
(a) if to Stericycle, to:
Stericycle, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a required copy to:
▇▇▇▇▇▇▇ and Colmar
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Sellers, to:
Rethmann GmbH & Co. Verwaltungs-und Beteiligungs-KG
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
D-59379 Selm
Germany
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, General Manager
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier:
Lobbe ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇ ▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Edelhoff, General Manager
Telecopier:
with a required copy to:
▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
One ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇
19
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Messrs. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
All Notices sent by certified or registered mail shall be considered to have
been given three business days after being deposited in the mail. All Notices
sent by overnight courier service, telecopier or personal delivery shall be
considered to have been given when actually received by the intended recipient.
A Party may change its address for purposes of this Agreement by Notice in
accordance with this Section 9.5.
9.6 WAIVER. The failure or any delay by any Party in exercising any right
under this Agreement shall not operate as a waiver of that right, and no single
or partial exercise of any right shall preclude any other or further exercise of
that right or the exercise of any other right. All waivers shall be in writing
signed by the Party to be charged with the waiver, and no waiver that may be
given by a Party shall be applicable except in the specific instance for which
it is given.
9.7 ENTIRE AGREEMENT. This Agreement constitutes the complete and
exclusive statement of the terms of the agreement between the Parties with
respect to its subject matter. This Agreement may not be amended except by a
written agreement signed by the Party to be charged with the amendment.
9.8 ASSIGNMENT. No Party may assign any of its rights under this Agreement
without the other Party's prior written consent, with the exception that
Stericycle, without being released from any of its obligations under this
Agreement, may assign any of its rights to a wholly-owned subsidiary.
9.9 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall be
considered to give any Person other than the Parties any legal or equitable
right, claim or remedy under or in respect of this Agreement. This Agreement and
all of its provisions are for the sole and exclusive benefit of the Parties and
their respective successors and permitted assigns.
9.10 SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable by a court of competent jurisdiction, the other provisions of this
Agreement shall remain in full force and effect. Any provision of this Agreement
which is held invalid or unenforceable only in part shall remain in full force
and effect to the extent that it is not held invalid or unenforceable.
9.11 CAPTIONS. The captions of articles and sections of this Agreement are
for convenience only and shall not affect this the construction or
interpretation of this Agreement.
9.12 CONSTRUCTION. All references in this Agreement to "Article," "Section"
or
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"Sections" refer to the corresponding article, section or sections of this
Agreement. All words used in this Agreement shall be construed to be of the
appropriate gender or number as the context requires. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms. All
dollar amounts in this Agreement are in United States dollars.
9.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be considered an original copy of this
Agreement and all of which, when taken together, shall be considered to
constitute one and the same agreement.
9.14 GOVERNING LAW. This Agreement shall be governed by the Laws of the
State of Delaware without regard to conflicts of law principles.
9.15 BINDING EFFECT. This Agreement shall apply to, be binding in all
respects upon and inure to the benefit of Parties and their respective
successors and permitted assigns.
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In witness, the Parties have executed this Agreement.
STERICYCLE, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
RETHMANN GMBH & CO. VERWALTUNGS-UND
BETEILIGUNGS-KG
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
General Manager
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Controlling Manager
LOBBE HOLDING GMBH & CO.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Edelhoff
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ Edelhoff
General Manager
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EXHIBIT A
LISTED AGREEMENTS
[Omitted]
30
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EXHIBIT B
WIRE TRANSFER INSTRUCTIONS
[Omitted]
31