EXHIBIT 10(w)
STOCK PURCHASE AGREEMENT
BY AND AMONG
BIRD ENVIRONMENTAL GULF COAST, INC.;
BIRD ENVIRONMENTAL TECHNOLOGIES, INC.;
BIRD CORPORATION;
GTS DURATEK, INC.; AND
GTSD SUB II, INC.
DATED AS OF NOVEMBER 29, 1995
TABLE OF CONTENTS
ARTICLE I: DEFINITIONS.............................................................. 1
ARTICLE II: SALE AND PURCHASE OF STOCK.............................................. 4
Section 2.1 Purchase and Sale.................................................. 4
Section 2.2 Purchase Price..................................................... 4
Section 2.3 Closing............................................................ 5
ARTICLE III: REPRESENTATIONS AND WARRANTIES
OF BETI and BIRD..................................................................... 6
Section 3.1 Organization, Standing and Authority of BETI; Title to Stock....... 6
Section 3.2 Organization, Standing and Authority of Bird....................... 6
Section 3.3 Organization, Standing, Authority and Capitalization of Company.... 7
Section 3.4 No Conflicts....................................................... 8
Section 3.5 No Other Pending Transactions...................................... 9
Section 3.6 Company's Names, Business, and Location of Company Assets.......... 9
Section 3.7 Subsidiaries....................................................... 9
Section 3.8 Financial Statements............................................... 9
Section 3.9 No Undisclosed Liabilities......................................... 10
Section 3.10 Absence of Certain Changes, Events or Conditions.................. 10
Section 3.11 Litigation and Other Proceedings.................................. 10
Section 3.12 Licenses and Approvals............................................ 11
Section 3.13 Legal Compliance.................................................. 11
Section 3.14. Material Contracts And Agreements................................ 12
Section 3.15 Title Matters..................................................... 12
Section 3.16 Labor Matters..................................................... 13
Section 3.17 Employee Benefit Plans and Pension Plans.......................... 13
Section 3.18 Insurance......................................................... 13
Section 3.19 Condition of Company Assets....................................... 14
Section 3.20 Intellectual Property............................................. 14
Section 3.21 Environmental Matters............................................. 15
Section 3.22 Customers and Suppliers........................................... 17
Section 3.23 Brokers and Finders............................................... 17
Section 3.24 Accounts Receivable............................................... 18
Section 3.25 No Material Adverse Change........................................ 18
Section 3.26 Books and Records................................................. 18
Section 3.27 Disaster.......................................................... 18
Section 3.28 Tax Returns and Audits............................................ 18
Section 3.29 Due Diligence Review.............................................. 19
Section 3.30 Disclosure........................................................ 19
ARTICLE IV: REPRESENTATIONS AND WARRANTIES OF
PURCHASER AND GTSD................................................................... 19
Section 4.1 Organizational Matters; Authority.................................. 19
Section 4.2 No Conflicts....................................................... 20
Section 4.3 Litigation......................................................... 20
Section 4.4 Brokers and Finders................................................ 20
ARTICLE V: COVENANTS AND AGREEMENTS................................................. 20
Section 5.1 Consents; Cause Conditions to be Satisfied......................... 20
Section 5.2 Best Efforts....................................................... 21
Section 5.3 Certain Notifications.............................................. 21
Section 5.4 Competition........................................................ 21
Section 5.5 Non-Interference Agreement......................................... 22
Section 5.6 Confidentiality.................................................... 23
Section 5.7 Tax Election....................................................... 23
Section 5.8 Notification of Certain Events..................................... 23
Section 5.9 Sharing of Expenses for RFI Work Plan.............................. 23
Section 5.10 Closure Trust Fund................................................ 24
Section 5.11 Knowledge of the Company.......................................... 24
Section 5.12 Vehicle Leases.................................................... 24
Section 5.13 Use of Company Logo............................................... 25
ARTICLE VI: CONDITIONS PRECEDENT TO PURCHASER'S
OBLIGATIONS.......................................................................... 25
Section 6.1 Receipt of Stock Certificates...................................... 25
Section 6.2 Minority Shareholders Agreements................................... 25
Section 6.3 Payments by Bird................................................... 25
Section 6.4 Release from Liability............................................. 25
Section 6.5 Required Approvals................................................. 26
Section 6.6 Filings............................................................ 26
Section 6.7 Actions or Events Interfering with Agreement....................... 26
Section 6.8 Representations and Warranties..................................... 26
Section 6.9 Compliance with Agreements......................................... 26
Section 6.10 Delivery of Certificates.......................................... 27
Section 6.11 Resignation of Officers and Directors............................. 27
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Section 6.12 Termination of Certain Agreements................................. 27
ARTICLE VII: CONDITIONS PRECEDENT TO THE COMPANY'S,
BETI'S AND BIRD'S OBLIGATIONS........................................................ 28
Section 7.1 Compliance with Agreements......................................... 28
Section 7.2 Release of Liabilities............................................. 28
Section 7.3 Representations and Warranties..................................... 28
Section 7.4 Compliance with Agreements......................................... 28
Section 7.5 Delivery of Certificates........................................... 28
Section 7.6 Proceedings Taken.................................................. 29
ARTICLE VIII: INDEMNIFICATION....................................................... 29
Section 8.1 Indemnification by BETI and Bird................................... 29
Section 8.2 Indemnification by Purchaser and GTSD.............................. 30
Section 8.3 Procedures for Third Party Claims.................................. 30
Section 8.4 Limits for Recovery of Losses...................................... 31
Section 8.5 Waiver of Contribution............................................. 31
Section 8.6 Sole Remedy........................................................ 31
ARTICLE IX: SURVIVAL................................................................ 31
ARTICLE X: MISCELLANEOUS............................................................ 32
Section 10.1 No Assignment..................................................... 32
Section 10.2 Costs............................................................. 32
Section 10.3 Publicity......................................................... 32
Section 10.4 Confidentiality................................................... 32
Section 10.5 Parties in Interest............................................... 33
Section 10.6 Entire Agreement.................................................. 33
Section 10.7 Construction...................................................... 33
Section 10.8 Notices........................................................... 33
Section 10.9 Counterparts...................................................... 35
Section 10.10 Governing Law.................................................... 35
Section 10.11 Specific Performance............................................. 35
Section 10.12 Severability..................................................... 36
Section 10.13 Further Assurances............................................... 36
Section 10.14 No Drafting Presumption.......................................... 36
Section 10.15 Incorporation by Reference; Use of Certain Terms................. 36
Section 10.16 Amendment and Waiver............................................. 36
Section 10.17 Waiver of Jury Trial............................................. 36
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of this 29th
day of November, 1995 by and among Bird Environmental Gulf Coast, Inc., a Texas
corporation (the "Company"); Bird Environmental Technologies, Inc., a Delaware
corporation and the sole stockholder of the Company ("BETI"); Bird Corporation,
a Massachusetts corporation and the parent corporation of BETI ("Bird"); GTS
Duratek, Inc., a Delaware corporation ("GTSD"), and GTSD Sub II, Inc., a
Maryland corporation and a wholly-owned subsidiary of GTSD (the "Purchaser").
W I T N E S S E T H :
WHEREAS, BETI desires to sell to the Purchaser and the Purchaser
desires to purchase from BETI all of the capital stock of the Company held by
BETI, which constitutes 80% of the issued and outstanding stock of the Company,
upon the terms and provisions hereinafter set forth.
WHEREAS, contemporaneously with the execution and delivery of this
Agreement and effective as of the date hereof, (i) the Company, the Purchaser,
GTSD and James Hogan, Mark Hogan, Barry Hogan and Samuel Lucas III
(collectively, the "Minority Shareholders") will execute and deliver that
certain Shareholders Agreement (the "Shareholders Agreement") outlining certain
rights between the parties as stockholders of the Company, (ii) the Company will
have executed with each of Mark Hogan, Barry Hogan and Samuel Lucas III
employment agreements (the "Employment Agreements") and (iii) the Company, GTSD
and James Hogan will have executed and delivered that certain technology license
agreement (the "License Agreement") pursuant to which James Hogan will license
to the Company and GTSD the technologies specified therein. The Shareholders
Agreement, the Employment Agreements and the License Agreement shall be
collectively referred to herein as the "Minority Shareholders Agreements".
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I: DEFINITIONS
In addition to those terms defined elsewhere herein, when used herein,
the following capitalized terms shall have the meanings indicated:
"Affiliate" of a specified person means a person that (in the case of
Bird or BETI only, as of the date hereof) directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, the person specified.
"Applicable Authority" shall mean any foreign, federal, state or local
governmental or quasi-governmental instrumentality, agency, department, bureau,
board or commission having authority or purporting to have authority over the
Company, any of the Company Assets, or the operation of the Company's Business,
including any entity with licensing or regulatory authority concerning Company
and the operation of Company's Business.
"Applicable Laws" shall mean all foreign, federal, state and local
laws, regulations, rules, orders, decrees, ordinances or judgments applicable to
the Company, the Company Assets, or the operation of the Company's Business,
including all laws concerning the licensing and regulation of the Company and
the conduct of the Company's Business.
"Bird Instruments" shall mean the following documents to which the
Minority Shareholders, certain of their Affiliates and certain Affiliates of
Bird are parties: (a) that certain Pre-Incorporation Agreement dated August 9,
1991; (b) that certain Stock Option Agreement dated August 9, 1991; (c) that
certain Voting Agreement dated August 9, 1991; (d) that certain Stock Purchase
Agreement dated August 9, 1991; (e) that certain Amendment Agreement dated
August 9, 1991; and (f) that certain Agreement dated June 18, 1994, forms of
which documents are attached hereto as APPENDIX I.
"Bird Letter of Intent" shall mean the letter of intent dated as of
September 6, 1995 addressed to Mr. Frank S. Anthony, Vice President and General
Counsel of Bird, from GTSD.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations and interpretations thereunder.
"Company Assets" shall mean all of the properties and assets owned or
leased by the Company, including without limitation, all of the following: the
Property, the Tangible Operating Assets, the Intellectual Property, the Company
Contracts, the Leases, and the Licenses and Approvals (as each term is defined
below).
"Company's Business" shall mean developing and implementing waste
treatment technologies, as such activity was conducted prior to the shutdown or
suspension of its operations as contemplated by the Bird Letter of Intent.
"Company Contracts" shall mean, collectively, all contracts or
agreements to which the Company is a party or by which the Company or any of the
Company Assets is bound, including personal property leases, franchise,
manufacturer's representative, distributorship, service, supply, maintenance,
employee, leasing and management contracts and agreements affecting or involving
the Property or the Company's Business.
"GAAP" shall mean United States generally accepted accounting
principles, applied on a consistent basis.
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"Inventory" means all of Company's inventories as of the Closing Date
relating to the Products, including all ingredients, finished goods, work in
progress, raw materials, marketing materials and production, shipping and
packaging supplies.
"Leases" shall mean, collectively, all of the oral or written leases,
subleases, licenses, concession agreements or other use or occupancy agreements
pursuant to which the Company or any other party is entitled to occupy and use
any portion of the Property or pursuant to which Company leases to or from any
other party any real property, including all renewals, extensions, modifications
or supplements to any of the foregoing or substitutions for any of the
foregoing.
"Licenses and Approvals" shall mean all certificates, licenses, permits
or other approvals required or obtained by the Company in connection with the
use or ownership of the Company Assets, the operation of the Company's Business
or in connection with its use and occupancy of the Leased Facility or any of the
Property.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien or other charge of any kind, including, without limitation, any conditional
sale or other title retention agreement, any lease in the nature thereof and the
filing of or agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction and including any lien or charge arising by
statute or other law.
"Material Adverse Effect" shall mean any material and adverse effect on
the assets, properties, liabilities, business affairs, results of operations,
condition (financial or otherwise) or prospects of the Company, provided that an
effect resulting solely from the shutdown or suspension of the operations of and
funding of the Company as described in the Bird Letter of Intent shall not be
deemed to constitute a Material Adverse Effect.
"Minority Shareholders" shall mean Barry Hogan, Brad Hogan, Samuel
Lucas, III and James Hogan as shareholders holding in the aggregate 20% of the
issued and outstanding capital stock of the Company.
"Minority Shareholders' Letter of Intent" shall mean the letter of
intent dated as of September 7, 1995 addressed to Mr. Barry K. Hogan, Executive
Vice President of the Company from GTSD.
"Organizational Documents" shall mean a corporation's Articles or
Certificate of Incorporation and By-Laws, as amended or supplemented.
"Person" or "person" means an individual, corporation, partnership,
firm, association, joint venture, trust, unincorporated organization,
government, governmental body, agency, political subdivision or other entity.
"Products" means all of the products manufactured, distributed,
marketed, sold or packaged in connection with the operation of the Company's
Business.
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"Property" shall mean, collectively, all of the land and the
improvements thereon, together with any tangible property located thereon which
would constitute a "fixture" under the laws of the State of Maryland and all
personal property owned or leased by Company and used or useful in connection
with the operation of the Company's business (other than that personal property
included within the definition of "Tangible Operating Assets") and all of
Company's right, title and interest in and to all privileges, appurtenances, and
advantages belonging or in any way appertaining to any such land, including all
easements, rights-of-way, water and riparian rights, air rights above the land,
development rights, and all rights, title and interest in and to all adjoining
streets, roads or alleys (public or private, open or proposed).
"Restricted Agreement" shall refer to any of the Leases and Company
Contracts (as each is defined in this Article I), to the extent that any such
Lease or Company Contract contains any provision that, as a result of the
consummation of the transactions contemplated by this Agreement, causes one or
more of the following to occur: (i) Company is deemed to be in default under
such Lease or Company Contract (with or without the giving of notice and any
cure period); (ii) automatically voids such Lease or Company Contract or renders
voidable by any party other than Company, the Lease or Company Contract or
provides any party other than the Company with a right to terminate or rescind
such Lease or Company Contract; (iii) imposes any fine, penalty, charge or
increase in payments or other charges required to be made by the Company under
such Lease or Company Contract; or (iv) otherwise modifies any of the material
terms of such Lease or Company Contract.
"Stock" shall mean the Company's common stock, $0.01 par value per
share.
"Tangible Operating Assets" shall mean, collectively, all of the
tangible personal property owned or leased by the Company, wheresoever located,
including Inventory, trade fixtures, stock-in-trade, equipment, and supplies.
ARTICLE II: SALE AND PURCHASE OF STOCK
Section 2.1 Purchase and Sale.
Subject to the terms and conditions hereinafter set forth, at the
Closing, BETI will sell and transfer to Purchaser, and Purchaser will purchase
from BETI, 560 shares of Stock, which is all of the Stock owned by BETI and
which represents 80% of the issued and outstanding stock of the Company, free
and clear of any and all Liens.
Section 2.2 Purchase Price.
The purchase price for the purchase of the Stock shall be the sum of
$1.00 (the "Purchase Price") and no further payment from the Purchaser shall be
required for the Stock. BETI hereby acknowledges receipt of the Purchase Price
in full payment of the Stock.
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Section 2.3 Closing.
(a) Generally. Subject to the terms and conditions of this Agreement,
the sale and purchase of the Stock contemplated hereby (the "Closing") shall
take place at 10:00 a.m., local time, on November 29, 1995 (the "Closing Date")
at the offices of Piper & Marbury L.L.P., or at such other time, date or place
as BETI, Bird and Purchaser may mutually agree; provided, however, that prior to
the Closing, all of the conditions in Articles VI and VII of this Agreement
shall have been satisfied or waived, as the case may be.
(b) BETI's Obligations at Closing. At the Closing, BETI will pay any
costs required to be paid by it hereunder and will deliver to Purchaser the
following (collectively, the "BETI Closing Documents"):
(i) all original stock certificates in due and proper form
evidencing the Stock to be sold by BETI;
(ii) an endorsement on each original Stock certificate or separate
stock powers duly executed in blank, together with such other instruments of
conveyance as may be reasonably acceptable to Purchaser and its counsel and
sufficient to transfer full, marketable title to the Stock to Purchaser, free
and clear of any Liens;
(iii) duly-executed resignations of each of the directors and
officers of the Company;
(iv) a good standing certificate of Company, dated no earlier than
5 calendar days prior to the Closing Date, certifying that the Company is in
good standing in the State of Texas; and
(v) such other documents and instruments as may be required to
consummate the transactions contemplated hereunder.
(c) Purchaser's Obligations at Closing. At the Closing, Purchaser will
pay any costs required to be paid by it hereunder and will deliver the following
to BETI:
(i) the Purchase Price; and
(ii) such other documents and instruments as shall be required to
consummate the transactions contemplated hereunder.
(d) Bird's Obligations at or Prior to the Closing. To the extent that
the current liabilities of the Company exceed the current assets of the Company
as of August 31, 1995 (as determined by a nationally recognized independent
public accounting firm selected by mutual agreement of Purchaser and Bird and
set forth on Schedule 2.3(d) hereto), Bird will either (i) at or prior to the
Closing, make payments on behalf of the Company to reduce the Company's
outstanding accounts payable in the amount and to the extent that the Company's
current
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liabilities exceed its current assets at August 31, 1995 or (ii) at the Closing,
pay to the Company the amount by which the Company's current liabilities
exceeded current assets at August 31, 1995.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF
BETI AND BIRD
BETI and Bird hereby jointly and severally represent and warrant to
Purchaser and GTSD as of the Closing Date as follows:
Section 3.1 Organization, Standing and Authority of BETI; Title to
Stock.
(a) BETI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
(b) BETI has all requisite corporate power and authority to execute,
deliver and perform this Agreement and each of the instruments, documents, and
agreements contemplated herein to be executed and delivered by BETI pursuant to
this Agreement (collectively, the "BETI Instruments"). The execution, delivery
and performance of this Agreement and the BETI Instruments have been duly
authorized and approved by all necessary corporate action, and this Agreement
and the BETI Instruments, when duly executed and delivered by BETI will
constitute valid and legally binding obligations of BETI, enforceable against
BETI in accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to the rights of
creditors generally.
(c) BETI owns 80% of the issued and outstanding capital stock of the
Company free and clear of any Liens, right of first refusal or restriction of
any kind other than to the Minority Shareholders. BETI is not a party to or
bound by any options, calls, contracts of commitments of any character relating
to any of the Stock or any other equity or debt security issued or to be issued
by the Company, including any agreement, instrument or understanding, order or
decree that would restrict the transfer by BETI of the Stock pursuant to this
Agreement, other than agreements with the Minority Shareholders (which
agreements will be terminated at or prior to the Closing).
Section 3.2 Organization, Standing and Authority of Bird.
(a) Bird is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts.
(b) Bird has all requisite corporate power and authority to execute,
deliver and perform this Agreement and each of the instruments, documents, and
agreements contemplated herein to be executed and delivered by Bird pursuant to
this Agreement (collectively, the "Bird Instruments"). The execution, delivery
and performance of this Agreement and of the Bird
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Instruments have been duly authorized and approved by all necessary corporate
action, and this Agreement and the Bird Instruments, when duly executed and
delivered by Bird, will constitute valid and legally binding obligations of
Bird, enforceable against Bird in accordance with their terms.
Section 3.3 Organization, Standing, Authority and Capitalization of
Company.
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Texas and has all requisite
corporate power and authority to carry on the Company's Business as it is now
being conducted and to own or lease the Company Assets. True, complete and
correct copies of the Organizational Documents of the Company have been
delivered to GTSD and the Organizational Documents are in full force and effect.
The Company is not in violation, breach or default of any of the provisions of
its Organizational Documents. The Company is duly qualified to do business in
the jurisdictions set forth in Schedule 3.3(a) attached hereto, which
jurisdictions represent all of the jurisdictions where the Company is required
to be qualified as the result of the location of its assets or the conduct of
the Company's Business, other than where the failure to qualify would not have a
Material Adverse Effect.
(b) Company has all requisite corporate power and authority to execute,
deliver and perform this Agreement and each of the instruments, documents, and
agreements contemplated herein to be executed and delivered by Company pursuant
to this Agreement (collectively, the "Company Instruments"). The execution,
delivery and performance of this Agreement and of the Company Instruments have
been duly authorized and approved by all necessary corporate action, and this
Agreement and the Company Instruments, when duly executed and delivered by the
Company, will constitute valid and legally binding obligations of Company,
enforceable against the Company in accordance with their terms.
(c) The authorized capital stock of Company consists entirely of 3,000
shares of common stock, $0.01 par value, of which 700 shares are issued and
outstanding. Three hundred (300) shares of common stock of Company are held in
the Company's treasury and no shares of capital stock are reserved for issuance.
All outstanding shares of capital stock of the Company have been duly authorized
and are validly issued and are fully paid and non-assessable with no personal
liability attaching to the ownership thereof. The Company is not a party to or
bound by any options, warrants, rights, calls or other preemptive rights or
other agreements or plans under which the Company may become obligated to issue,
sell or transfer shares of its capital stock or other securities other than
agreements with the Minority Shareholders (which agreements will be terminated
at or prior to the Closing).
(d) The designations, powers, preferences, rights, qualifications,
limitations and restrictions in respect of each class and series of authorized
capital stock of the Company are as set forth in the Organizational Documents of
the Company, copies of which have been furnished to GTSD.
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(e) There are no outstanding registration rights with respect to any
capital stock of the Company other than as set forth in agreements with the
Minority Shareholders (which agreements will be terminated at or prior to
Closing).
(f) The Company has no obligation (contingent or other) to purchase,
redeem or otherwise acquire any of its capital stock or any interest therein or
to pay any dividend or make any other distribution in respect thereof other than
as set forth in agreements with the Minority Shareholders (which agreements will
be terminated at or prior to Closing).
(g) The Company has no knowledge of any voting agreements, voting
trusts, stockholders' agreements, proxies or other agreements or understandings
that are currently in effect or that are currently contemplated with respect to
the voting of any capital stock of the Company other than as set forth in
agreements with the Minority Shareholders (which agreements will be terminated
at or prior to Closing).
(h) All of the outstanding securities of the Company were issued in
compliance with all applicable federal and state securities laws.
(i) There are no outstanding contractual obligations (contingent or
otherwise) of the Company that would prohibit or restrict the Company's ability
to declare or pay dividends or to repurchase or redeem the Company's capital
stock other than as set forth in agreements with the Minority Shareholders
(which agreements will be terminated at or prior to Closing).
(j) Since December 31, 1994, the Company has not (i) issued any capital
stock, (ii) redeemed any capital stock, (iii) made any distributions on its
capital stock or (iv) changed the tax basis of any of the Company Assets.
Section 3.4 No Conflicts.
Neither the execution and delivery of this Agreement nor the carrying
out of the transactions contemplated hereby or under any of the Company
Instruments, BETI Instruments or Bird Instruments will: (a) with or without
notice or the passage of time or both, result in any violation, termination or
modification of, or be in conflict with, (i) the Organizational Documents of the
Company, BETI or Bird, (ii) any License and Approval, Lease or Company Contract,
or any other instrument or agreement to which the Company, BETI or Bird is a
party or by which the Company, BETI or Bird is bound other than agreements with
the Minority Shareholders (which agreements will be terminated at or prior to
Closing)., or (iii) any law, rule, regulation, ordinance, writ, injunction,
judgment, decree or order applicable to the Company, BETI or Bird, (b) result in
the creation of any Lien upon the Property or any of the other Company Assets or
in the acceleration of any indebtedness or other obligation of the Company; or
(c) require the filing, declaration or registration with, or permit, consent or
approval of, or the giving of any notice to, any Applicable Authority,
excluding, those that have already been obtained prior to the Closing.
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Section 3.5 No Other Pending Transactions.
Except for the transactions contemplated by this Agreement: (i) neither
BETI nor Bird is a party to or bound by or the subject of any agreement,
commitment or undertaking with respect to the sale of all or any part of the
Stock of the Company; and (ii) the Company is not a party to or bound by or the
subject of any agreement, undertaking or commitment to merge or consolidate
with, or acquire all or substantially all of the property and assets of, any
other person, corporation, or entity, or to sell, lease or exchange all or
substantially all of the Company Assets to any other person, corporation, or
entity.
Section 3.6 Company's Names, Business, and Location of Company Assets.
The Company has conducted business under the name "Bird Environmental
Gulf Coast, Inc." and the "San Leon Recycling Center" and no other names. The
Company is in the business of developing and implementing waste treatment
technologies. The Company has not engaged in and does not currently engage in
any other business other than as described in the preceding sentence. The
Company's chief executive office and principal place of business is located at
2700 Avenue S, San Leon, Texas 77539. Substantially all of the Company Assets
are located at same address as its chief executive office and the Company does
not currently have any places of business other than at such address. Set forth
on Schedule 3.6 attached hereto is a complete and accurate listing of all
locations at which the Company has conducted business, as owner, operator,
lessor or otherwise over the last ten (10) years.
Section 3.7 Subsidiaries.
The Company does not own, or have any contract or other right to
acquire, directly or indirectly, any capital stock or other equity securities of
any Person, nor does the Company have any direct or indirect equity or ownership
interest in any business other than the Company's Business.
Section 3.8 Financial Statements.
(a) The Company, BETI or Bird has delivered to GTSD copies of: (i) the
unaudited balance sheet of the Company as of December 31, 1994 and the unaudited
balance sheet of the Company as of August 31, 1995, and (ii) the related
consolidated statements of income for the related annual and eight month periods
ended December 31, 1994 and August 31, 1995, respectively (collectively, the
"Financial Statements").
(b) The Financial Statements: (i) were prepared in accordance with GAAP
consistently applied throughout the periods covered thereby; (ii) present fairly
the financial condition and the results of operations of the Company as at the
respective dates of and for the periods referred to in such financial
statements; and (iii) are true, complete and correct in all material respects.
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Section 3.9 No Undisclosed Liabilities.
Except as set forth on Schedule 3.9 attached hereto, the Company does
not have any liabilities or obligations of any nature (whether known or unknown,
matured or unmatured, disputed or undisputed, liquidated or unliquidated, fixed
or contingent, secured or unsecured) except for liabilities or obligations
reflected or reserved against in the Financial Statements and current
liabilities incurred in the ordinary course of business since the respective
dates thereof and provided such liabilities do not exceed $200,000 at Closing,
which liabilities will be paid by Bird to Purchaser pursuant to Section 6.3
hereof at or prior to the Closing.
Section 3.10 Absence of Certain Changes, Events or Conditions.
Except as set forth in Schedule 3.10 attached hereto, since August 31,
1995:
(a) the Company has not incurred any debt, obligation or liability
except for normal debt incurred in the ordinary course of business and the
Company Assets have not been subjected to any Liens other than those liens
described on Schedule 3.10(a) attached hereto (the "Permitted Liens");
(b) the Company Assets have not been sold or transferred;
(c) there has not been any change in the Company's authorized or issued
capital stock; grant of any stock option or right to purchase shares of capital
stock of the Company; issuance of any security convertible into such capital
stock; grant of any registration rights; purchase, redemption, retirement or
other acquisition by Company of any shares of any such capital stock; or
declaration or payment of any dividend or other distribution or payment in
respect of shares of capital stock;
(d) there has not been any payment or increase by the Company of any
bonuses, salaries, or other compensation to any stockholder, director, officer,
or employee (except in the ordinary course of business) or entry into any
employment, severance, or similar contract or agreement with any director,
officer or employee;
(e) there has not been any damage to or destruction or loss of any
asset or property of Company, whether or not covered by insurance, materially
and adversely affecting the properties, assets, business, financial condition or
prospects of the Company taken as a whole; and
(f) no agreements have been entered into, whether in writing or
otherwise, to take any of the actions set forth in this Section 3.10.
Section 3.11 Litigation and Other Proceedings.
(a) Except as set forth on Schedule 3.11 attached hereto, there is no
litigation, arbitration, mediation, or other investigation or proceeding pending
nor, to the best of BETI's and Bird's
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knowledge, threatened or in prospect, against or relating to the Company, the
Company Assets, the Company's Business, or the transactions contemplated by this
Agreement; nor, is there any valid basis for any such litigation, arbitration,
mediation, or other investigation or proceeding relating to the transactions
contemplated by this Agreement. Except as disclosed on Schedule 3.11 attached
hereto, Company is not subject to, or bound by, any order of any court or
Applicable Authority entered in any judicial, administrative or other proceeding
to which it is or was a party. Except as set forth on Schedule 3.11 attached
hereto, no matter set forth on Schedule 3.11 attached hereto would, if adversely
decided, have a Material Adverse Effect on the business, operations, condition
(financial or otherwise), liabilities, assets, earnings, working capital or
prospects of the Company.
(b) There is no litigation, arbitration, mediation, or other
investigation or proceeding pending nor, to the best of Bird's or BETI's
knowledge, threatened or in prospect, against or relating to Bird or BETI which
seeks to prohibit, restrict or delay consummation of the transactions
contemplated under this Agreement and there is no judgment, decree, injunction,
ruling or order of any Court, Applicable Authority or arbitrator outstanding
against Bird or BETI having any such effect.
Section 3.12 Licenses and Approvals.
Attached hereto as Schedule 3.12 is a complete and accurate list of all
of the Licenses and Approvals held by Company. Company has provided GTSD with
true, correct and complete copies of all of the Licenses and Approvals. To
Bird's and BETI's actual or constructive knowledge, the Company owns or
possesses and holds free from restrictions or conflicts with the rights of
others all franchises, licenses, permits, consents, approvals and other
authority (governmental or otherwise), and all rights and privileges with
respect to the foregoing, as are necessary for the conduct of its business as
now being conducted, and as proposed to be conducted, except where the failure
to own or possess and hold such franchises, licenses, permits, consents,
approvals and other authority (governmental or otherwise) would not have a
Material Adverse Effect. All of the Licenses and Approvals are in full force and
effect and Company is not in violation with respect to any of them. No
proceedings are pending or, to the best of BETI's and Bird's knowledge,
threatened by any Applicable Authority to revoke or limit the scope of any of
the Licenses and Approvals. Except as noted on Schedule 3.12 attached hereto,
none of the Licenses and Approvals would be rendered ineffective or be required
to be reissued as a result of the consummation of the transactions contemplated
hereby.
Section 3.13 Legal Compliance.
Except as set forth on Schedule 3.13 attached hereto and except for
matters covered by Sections 3.16, 3.17 and 3.21 (which matters are addressed
exclusively in such respective sections), to Bird's and BETI's actual or
constructive knowledge, the Company's Business and the operations of the Company
are being conducted in compliance with all Applicable Laws and neither the
Company, BETI nor Bird has received notice from any Applicable Authority that
the
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Company, the Company's Business or the Company Assets is not in compliance with
any Applicable Laws.
Section 3.14. Material Contracts And Agreements.
Listed on Schedule 3.14 is a listing of all material contracts,
agreements, leases, indentures or instruments of the Company. With respect to
such material contracts, agreements, leases, indentures or instruments of the
Company, the Company and, to the best of BETI's and Bird's knowledge, each other
party thereto have in all material respects performed all the obligations
required to be performed by them to date, have received no notice of default and
are not in default, in any material respect, (with due notice or lapse of time
or both) under any material contract, agreement, indenture or other instrument
now in effect to which the Company is a party or by which it or its property may
be bound. Bird and BETI have no knowledge of any breach and have received no
written notice of any anticipated breach by the other party to any material
contract or commitment to which the Company is a party. Except as noted on
Schedule 3.14 attached hereto, none of the Company's material contracts or
agreements constitute a Restricted Agreement or would require the consent or
approval of any party thereto, other than Company, or the consent or approval of
any third party in connection with the consummation of the transactions
contemplated hereby. Except as disclosed on Schedule 3.14, the Company is not a
party to, or bound by, any material contract or agreement, any term of which
materially adversely affects, or which the Company expects in the future to have
a Material Adverse Effect. The Company is not a party to any contract or
agreement with any Affiliate of the Company other than the Minority Shareholders
(which agreements will be terminated at or prior to the Closing).
Section 3.15 Title Matters.
The Company has good and marketable title to the Company Assets owned
by it, free and clear of all Liens except for (i) certain mechanics' liens or
other similar statutory liens arising by operation of law in respect of
obligations that are adequately reflected in the Company's balance sheet as of
August 31, 1995, (ii) certain subsurface rights to the Company's real property
(iii) certain exceptions to title listed on the title report effective October
11, 1995 and attached hereto as Schedule 3.15 and (iv) other encumbrances of
record as of the date that title insurance was obtained on the real property
(collectively Items (i) through (iv) shall be referred to as the
"Encumbrances"). The Encumbrances that exist on the Company's real property will
not in any material way adversely affect the Company's use or enjoyment of its
real property and will not in any material way adversely affect the Company's
operations. The Company does not lease any real property. None of the properties
owned by the Company is subject to any Liens which could reasonably be expected
to materially and adversely affect the assets, properties, liabilities,
business, affairs, results of operations, condition (financial or otherwise) or
prospects of the Company.
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Section 3.16 Labor Matters.
To Bird's and BETI's actual or constructive knowledge, the Company has
complied in all material respects with all applicable federal and state laws
relating to the employment of labor including the provisions thereof relating to
wages, hours, collective bargaining and the payment of social security and taxes
and is not liable for any arrears of wages or any tax or any penalty for failure
to comply with any of the foregoing. No labor dispute, strike, work stoppage,
employee action or labor relations problem of any kind which has affected or may
affect Company has occurred since the inception of Company or, to BETI's and
Bird's knowledge, is currently pending or threatened.
Section 3.17 Employee Benefit Plans and Pension Plans.
Copies of all of the Company's employee policy manuals have been
provided to GTSD, which policy manuals contain a description of all material
employee benefit plans and pension plans of the Company. The Company's employee
benefit plans and pension plans comply in all material respects with applicable
laws relating thereto and have been maintained in accordance with their plan
documents. The Company has no liability (whether actual, contingent, with
respect to any of its assets or otherwise) with respect to any of its employee
benefit plans and other pension plans other than as adequately reflected in the
Financial Statements. The Company, GTSD or any of GTSD's Affiliates will have no
liability with respect to any benefit plans or pension plans of BETI or BETI's
control group as defined in Section 414(b), (c), (m) or (o) of the Code. None of
the Company's employee benefit plans and other pension plans contains any
provisions which would prohibit the transactions contemplated by this Agreement
or which would give rise to any severance, termination or other payments or
liabilities as a result of the transactions contemplated by this Agreement.
Schedule 3.17 attached hereto contains the most recent quarterly listing of
workers' compensation claims and a schedule of workers' compensation claims of
the Company for the last three fiscal years.
Section 3.18 Insurance.
The Company maintains and has maintained all such general liability,
pollution liability, product liability, fire, casualty and motor vehicle
insurance set forth on Schedule 3.18. All such insurance policies continue to be
in full force and effect, and the Company is in compliance with all requirements
and provisions thereof. True and correct copies of all insurance policies
relating to such coverage have been provided by the Company to GTSD. No notice
of cancellation has been given to or received by the Company with respect to any
of its insurance policies, and no such policies are subject to any retroactive
rate or audit adjustments or coinsurance arrangements. The Company, BETI and
Bird have no reason to believe that the pollution liability insurance coverage
will not be renewed upon expiration thereof at premiums substantially equivalent
to those currently being paid by the Company. The Company is not currently
involved in any projects and, accordingly, the Company is not currently required
to post any completion performance and other bonds and indemnities. The Company,
BETI or Bird
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has provided GTSD with a list of all property damage, personal injury claims and
workers' compensation claims asserted against the Company with respect to the
Company's Business during the past five (5) years involving any claim in excess
of $10,000. The Company has not received any notice from any insurance company
or insurance board of underwriters of the existence of any default or unsafe
condition with respect to the Property that remains unsatisfied or uncured or
that will remain unsatisfied or uncured as of the Closing Date.
Section 3.19 Condition of Company Assets.
(a) The Company Assets include all assets, properties, licenses and
other agreements necessary for the continued conduct of Company's Business after
the Closing in substantially the same manner as conducted prior to the Closing.
(b) Attached as Schedule 3.19(b) is a complete and accurate summary of
all of the Tangible Operating Assets of Company.
Section 3.20 Intellectual Property.
(a) Schedule 3.20 hereto contains a complete and accurate list of all
patents, trademarks, servicemarks and copyrights (registered or unregistered),
trade names, assumed names, brand names and all applications therefor, owned,
used or filed by the Company and the Company has sufficient trademarks, trade
names, service marks, patent rights, copyrights, manufacturing processes,
formulae, applications, trade secrets, know how, licenses, approvals and
governmental authorizations (or rights thereto) (collectively, the "Intellectual
Property") to conduct its business as conducted prior to the Closing Date except
where the absence of such Intellectual Property would not have a Material
Adverse Effect. Except as set forth in Schedule 3.20 attached hereto, the
patents, trademarks and the copyrights that constitute Intellectual Property are
valid, subsisting and enforceable, and the patents, registered trademarks and
registered copyrights are duly recorded in the name of Company.
(b) The Company has the right, free from any Liens, to use the
Intellectual Property and the consummation of the transactions contemplated
hereby will not alter or impair any such rights. Except as set forth in Schedule
3.20 attached hereto, within the last five years, no claims have been asserted
by any entity or person with respect to, or challenging or questioning, the
ownership, validity, enforceability or use of the Intellectual Property by the
Company, nor, to the knowledge of BETI and Bird, is there a valid basis for any
such claim. The use or other exploitation of such Intellectual Property by the
Company prior to the Closing has not infringed the rights of any other entity or
person. To the best of BETI's and Bird's knowledge, no entity or person is
infringing the rights of the Company with respect to such Intellectual Property
and the Company has no reasonable basis to claim such infringement. Schedule
3.20 attached hereto sets forth a complete and accurate list of all license
agreements between Company and third-parties with respect to the use of the
Intellectual Property.
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Section 3.21 Environmental Matters.
(a) As used in this Environmental Matters Section, the following terms
shall have the definitions indicated:
(i) "Company's Properties" means any real property or facility
currently owned, leased or operated by the Company or previously owned, leased
or operated by the Company.
(ii) "Environmental Law" means any statute, regulation, rule,
code, common law, order or judgment of any applicable federal, state, local or
foreign jurisdiction relating to pollution, hazardous substances, hazardous
wastes, petroleum or otherwise relating to protection of the environment,
natural resources or human health, including, by way of example and not by way
of limitation, the Clean Air Act ("CAA"); Clean Water Act ("CWA"); Resource
Conservation and Recovery Act ("RCRA"); Comprehensive Environmental Response
Compensation, and Liability Act ("CERCLA"); Emergency Planning and Community
Right-to-Know Act ("EPCRA"); Federal Insecticide, Fungicide and Rodenticide Act;
Safe Drinking Water Act ("SDWA"); Toxic Substances Control Act ("TSCA");
Hazardous Materials Transportation Act ("HMTA"); Occupational Safety and Health
Act ("OSHA"); and Endangered Species Act of 1973, each as currently amended;
(ii) "Regulated Substances" means any substance regulated under
Environmental Laws, including but not limited to: asbestos and
asbestos-containing materials ("ACMs"), polychlorinated biphenyls ("PCBs");
urea-formaldehyde in any of its forms; petroleum and its fractions; radioactive
materials; and any substances defined as "hazardous waste," "hazardous
substances," "pollutants or contaminants," "toxic substances," "hazardous
chemicals," "hazardous air pollutants," "toxic chemicals" or "hazardous
materials" under the CAA, CWA, RCRA, CERCLA, EPCRA, SDWA, TSCA, HMTA or OSHA.
(iii) "Environmental Condition" means
(a) the Release of any Regulated Substances into the
environment in an amount and under circumstances that would require notice,
removal or remediation, or constitute a basis for a claim or cause of action;
(b) the environmental, health or safety aspects of the
transportation, storage, treatment, handling, use or disposal of materials in
connection with the operations or past operations of the Company's business; or
(c) the violation, or alleged violation, of any Environmental
Law, order, permit or license of or from any governmental authority, agency or
court relating to environmental, health or safety matters; and
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(iv) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping or
disposing into the environment of any Regulated Substance.
(b) Except as set forth in Schedule 3.21, there has been no Release at,
on, under or from any of the Company's Properties.
(c) Except as set forth in Schedule 3.21, there has been no Release at,
on, under or from any nearby properties that has migrated or threatened to
migrate onto or under the Company's Properties or that would or could otherwise
affect the Company's Properties, and, to the best knowledge of BETI and Bird,
there is currently no threat of a Release at, on, under or from any nearby
properties that would or could migrate onto or under the Company's Properties or
that would or could otherwise affect the Company's Properties.
(d) No PCBs, asbestos or ACMs, urea-formaldehyde or radioactive
materials are located on the Company's Properties.
(e) Except as set forth in Schedule 3.21, no storage tanks, underground
or otherwise, are or have been located on any of the Company's Properties. To
the knowledge of BETI and Bird, none of the storage tanks set forth in Schedule
3.21 is leaking or has ever leaked.
(f) Except as set forth in Schedule 3.21, the Company has complied with
all Environmental Laws with respect to any operations now or previously
conducted by the Company. Except as set forth in Schedule 3.21, the Company has
no existing or potential liability under any Environmental Laws.
(g) Except as set forth in Schedule 3.21, the Company has not received
any notice, letter, citation, order, warning, complaint, inquiry, information
request or demand that: (i) it has violated or is in violation of any
Environmental Law; (ii) there has been a Release at or from the Company's
Properties, or any property where the company's wastes or products have been
sent; or (iii) it may be or is liable, in whole or in part, for the costs of
cleaning up, remediating, removing or responding to a Release.
(h) To the best knowledge of the Company, BETI or Bird, no other party
has received any notice, demand, suit, inquiry or information request pursuant
to CERCLA or any comparable state law relating to the Company, the Company's
Properties or any property where the Company's wastes or products have been
sent.
(i) None of the Company's Properties is listed on any regulatory list
of contaminated properties, including but not limited to the National Priorities
List promulgated pursuant to CERCLA, the CERCLIS or any federal, state or local
counterpart.
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(j) Except as set forth in Schedule 3.21, no environmental approvals,
clearances or consents are required under applicable law from any governmental
entity or authority in order for the parties to this Agreement to consummate the
transactions contemplated herein or for the Company to conduct its business as
presently conducted or proposed to be conducted.
(k) The Company has disclosed, prior to the date of this Agreement, its
waste practices, its use of Regulated Substances and all potentially material
environmental matters, and has disclosed all reports, audits assessments,
studies, inspections, evaluations, surveys, remedial action plans or other
similar documents relating to any Environmental Condition, whether or not
material, of the Company's Properties or operations.
(l) Except as set forth in Schedule 3.21, to the knowledge of BETI and
Bird, no location to which the Company transported or caused to be transported
any Regulated Substances for storage, recycling, treatment or disposal is or has
been the subject of any cleanup or remediation of such location pursuant to any
Environmental Law.
(m) The Company's Properties are not subject to any Lien in favor of
any governmental entity or other party for any liability, costs, or damages
incurred by such governmental entity or other party in response to a Release.
Section 3.22 Customers and Suppliers.
The Company, BETI or Bird has delivered to GTSD a complete and accurate
list of the Company's ten largest customers and suppliers (measured by dollar
volume of purchases and sales, as applicable) and the dollar amount of the
Company's Business which each customer and supplier represented during the
fiscal year ended 1994 and the eight months ended August 31, 1995. Neither the
Company, BETI nor Bird has received any oral or written notice that any such
supplier or any customer of Company does not plan to continue to do business
with Company, or plans to reduce its supplies to or volume of orders from the
Company or will not do business on substantially the same terms and conditions
with Purchaser subsequent to the Closing Date as such supplier or customer did
with Company before such date, except for those suppliers that may discontinue
doing business with the Company or modify the terms upon which they do business
with the Company due to the fact that the Company is delinquent in the payment
for goods or services provided by such supplier.
Section 3.23 Brokers and Finders.
Neither the Company, BETI, Bird nor any of their officers, directors or
employees has employed any broker or finder or incurred any liability for any
brokerage fees, commissions or finders' fees in connection with the transactions
contemplated by this Agreement.
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Section 3.24 Accounts Receivable.
All accounts receivable of the Company that are reflected in the
Financial Statements (the "Accounts Receivable") represent valid obligations
arising from sales actually made or services actually performed in the ordinary
course of business. All Accounts Receivable have been collected in full.
Section 3.25 No Material Adverse Change.
Since August 31, 1995, there has not been any material adverse change
in the Company Assets or the Company's financial condition, customer or business
prospects other than a change resulting from the shutdown or suspension of
operations or of funding of the Company as described in the Bird Letter of
Intent.
Section 3.26 Books and Records.
The minute books, stock record books, and other records of the Company,
all of which have been made available to GTSD, are complete and correct and have
been maintained in accordance with sound business practices. The minute books of
the Company contain accurate and complete records of all meetings held of, and
corporate action taken by, the stockholders, the Boards of Directors, and
committees of the Boards of Directors of the Company, and no meeting of any such
stockholders, Board of Directors, or committee has been held for which minutes
have not been prepared and are not contained in such minute books. At the
Closing, all of such books and records will be in the possession of the Company.
Section 3.27 Disaster.
Neither the business nor the Property of the Company is currently
affected (or has been affected at any time since December 31, 1994) by any fire,
explosion, accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance), of a kind which (individually or in the
aggregate) has, or could have, a Material Adverse Effect on the assets,
properties, liabilities, business, affairs, results of operations, condition
(financial or otherwise) or prospects of the Company.
Section 3.28 Tax Returns and Audits.
The Company has duly filed all income, franchise and other federal,
state and local tax returns, notices and reports that it has been or is required
to file. Except as may be otherwise disclosed in writing to the Purchaser or
GTSD, the Company is not delinquent in the payment of any taxes nor has it
requested any extension of time within which to file any tax return which return
has not since been or will not be timely filed. No deficiency for any tax has
been asserted or assessed against the Company other than as reflected in the
Financial Statements. The
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Company has withheld or otherwise collected all taxes or amounts it was required
to withhold or collect under any applicable federal, state or local law,
including, without limitation, any amounts required to be withheld or collected
with respect to employee state and federal income tax withholding, social
security, unemployment compensation, sales or use taxes or workmen's
compensation, and all such amounts have been timely remitted to the proper
authorities.
Section 3.29 Due Diligence Review.
The Company, BETI or Bird has made available for GTSD's review all
information reasonably requested by the Purchaser in connection with GTSD's due
diligence examination.
Section 3.30 Disclosure.
All schedules, exhibits, documents, certificates, reports or written
statements furnished or to be furnished to GTSD by or on behalf of the Company,
BETI or Bird with this Agreement or the transactions contemplated hereby and
delivered at Closing are true, complete and accurate in all material respects,
and no representation or warranty made in this Agreement or information
furnished pursuant hereto to GTSD (including information contained in the
schedules or documents referred to herein) contains any untrue statement of a
material fact or fails to include a material fact necessary in order to make the
statements contained herein or therein, in light of the circumstances under
which they are made, not misleading. To Bird's and BETI's knowledge, neither
Bird, BETI nor the Company has failed to disclose to GTSD any facts material to
the business, operations, condition (financial or otherwise), liabilities,
assets, earnings or working capital of the Company.
ARTICLE IV: REPRESENTATIONS AND WARRANTIES OF PURCHASER AND GTSD
Purchaser and GTSD hereby jointly and severally represent and warrant
to BETI and Bird as of the Closing Date as follows:
Section 4.1 Organizational Matters; Authority.
(a) Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Maryland. GTSD is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware.
(b) Purchaser and GTSD have all requisite corporate power and authority
to execute, deliver and perform this Agreement and each of the instruments,
documents, and agreements contemplated herein to be executed and delivered by
Purchaser pursuant to this Agreement to which each is a party (collectively, the
"GTSD Instruments"). The execution, delivery and performance of this Agreement
and of the GTSD Instruments have been duly authorized and
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approved by all necessary corporate action and this Agreement and the GTSD
Instruments, when duly executed and delivered by Purchaser and GTSD, as
applicable, will constitute valid and legally binding obligations of Purchaser
and GTSD, as applicable, enforceable against each that is a party thereto in
accordance with their terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to the rights of creditors generally.
(c) Purchaser is purchasing the Stock for its own account, and the
Stock is being purchased by it for investment and not with a present view to any
distribution thereof in violation of applicable securities laws.
Section 4.2 No Conflicts.
Neither the execution and delivery of this Agreement nor the carrying
out of the transactions contemplated hereby or under any of the GTSD Instruments
will: (a) with or without notice or the passage of time or both, result in any
violation, termination or modification of, or be in conflict with, (i) the
Organizational Documents of the Purchaser or GTSD, or (ii) any law, rule,
regulation, ordinance, writ, injunction, judgment, decree or order applicable to
the Purchaser or GTSD, (b) result in the creation of any Lien upon the property
or assets of the Purchaser or GTSD or in the acceleration of any indebtedness or
other obligation of the Purchaser or GTSD; or (c) require the filing,
declaration or registration with, or permit, consent or approval of, or the
giving of any notice to, any Applicable Authority, excluding, those that have
already been obtained prior to the Closing.
Section 4.3 Litigation.
There is no litigation, arbitration, mediation, or other investigation
or proceeding pending or, to Purchaser's and GTSD's knowledge, threatened or in
prospect, against Purchaser or GTSD with respect to the transactions
contemplated by this Agreement.
Section 4.4 Brokers and Finders.
Neither Purchaser, GTSD nor any of their officers, directors or
employees have employed any broker or finder or incurred any liability for any
brokerage fees, commissions or finders' fees in connection with the transactions
contemplated by this Agreement.
ARTICLE V: COVENANTS AND AGREEMENTS
Section 5.1 Consents; Cause Conditions to be Satisfied.
The Company, BETI and Bird agree to take all necessary corporate or
other action, and will use their reasonable best efforts to complete all filings
and obtain, or assist Purchaser or GTSD in obtaining, such licenses, permits,
consents, waivers, approvals, and authorizations of
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third parties and Applicable Authorities as may be necessary or appropriate in
connection with: (i) the execution and delivery of this Agreement; (ii) the
consummation of the transactions contemplated hereby or (iii) the ownership or
use of the Company Assets or the operation of the Company's Business.
Section 5.2 Best Efforts.
(a) Each of the Company, BETI and Bird shall use their reasonable best
efforts to cause all of the conditions contained in Article VI of this Agreement
to be satisfied.
(b) Purchaser and GTSD shall use their reasonable best efforts to cause
all of the conditions contained in Article VII of this Agreement to be
satisfied.
Section 5.3 Certain Notifications.
At all times prior to the Closing, each party hereto shall as promptly
as reasonably practicable notify the other in writing of the occurrence of any
event as to which it obtains knowledge that would make the representations,
warranties and disclosures made herein untrue or misleading or which is
reasonably likely to result in the failure of a condition specified in Article
VII or Article VIII hereof.
Section 5.4 Competition.
(a) The following terms when used in this Section 5.4 shall have the
following meanings:
"Competition" means (i) the treatment and disposal of hazardous and
other wastes, and (ii) any business which is competitive with the Company's
Business as it is now operated.
"Directly or Indirectly" means either for one's own account or as a
partner, shareholder, director, officer, principal, agent or employee of another
person.
"Person" means an individual, corporation, partnership, joint venture,
trust or other entity.
"Restricted Territory" means the United States, Canada and all other
jurisdictions worldwide in which the Company is conducting or has conducted the
Company's Business at or prior to the Closing.
(b) BETI and Bird shall not, for a period of five years after the date
hereof, Directly or Indirectly, engage in any Competition in the Restricted
Territory; provided, that BETI or Bird may, without violating this covenant (i)
own as a passive investment not in excess of 5% of the outstanding capital stock
of a corporation which engages in Competition if such capital stock is a
security which is actively traded on an established national securities
exchange; and (ii) have an ownership interest otherwise proscribed by this
Section 5.4 if such interest arises as a result of
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the acquisition of a business entity not principally engaged in a business in
Competition with that of the Company.
(c) Neither BETI nor Bird shall, directly or indirectly, for itself or
on behalf of any other Person, induce or attempt to induce any employee of the
Company to leave his or her employment with the Company at any time within three
years from the Closing Date.
(d) BETI and Bird each acknowledges that in view of the nature of the
Company's Business and the business objectives of Purchaser in acquiring it, the
foregoing territorial and time limitations are reasonable and properly required
for the adequate protection of Purchaser and that in the event that any such
territorial or time limitation is deemed to be unreasonable and is then reduced
by a court of competent jurisdiction, then, as reduced, the territorial and/or
time limitation shall be enforced.
(e) BETI and Bird further acknowledge that the remedy at law for any
breach by it of the agreements contained in this Section 5.4 will be inadequate
and that Purchaser will be entitled to seek injunctive relief without being
required to prove actual damages or post bond. This Section 5.4 constitutes an
independent and severable covenant and if any or all of the provisions of this
Section 5.4 are held to be unenforceable for any reason whatsoever, it will not
in any way invalidate or affect the remainder of this Agreement which will
remain in full force and effect.
Section 5.5 Non-Interference Agreement.
BETI and Bird covenant and agree that neither they nor any Affiliate of
either of them will, at any time after the Closing, directly or indirectly, for
whatever reason, whether for their own account or for the account of any other
person, firm, corporation or other organization: (i) solicit, deal with or
otherwise interfere with any of the Company's Business or Company's existing or
potential contracts or relationships with any affiliate, employee, officer,
director or any independent contractor whether or not the person is employed by
or associated with the Company on the Closing Date or at any time thereafter;
(ii) solicit, accept, deal with or otherwise interfere with the continuance of
supplies to Company (or the terms relating to such supplies), from any suppliers
who have been supplying goods, materials or services to Company at any time
during the last five years prior to the date of this Agreement; (iii) solicit,
accept, deal with or otherwise interfere with the Company's Business or
Company's existing or potential contracts or relationships with any independent
contractor, customer, client or consultant of the Company, or any person who is
a bona fide or prospective independent contractor, customer, client or
consultant thereof; or (iv) solicit or otherwise interfere with any existing or
proposed contract between the Company and any other party whatsoever.
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Section 5.6 Confidentiality.
BETI and Bird agree that they may possess certain data and knowledge of
the operations of the Company which are proprietary in nature and confidential.
BETI and Bird covenant and agree that they will not, for a period of three years
after the Closing, reveal, divulge or make known to any person (other than
Purchaser, GTSD or the Minority Shareholders) or use for its own account or for
the account of any person, firm, corporation or other organization, any
confidential or proprietary information, method, record, data, trade secret,
pricing policy, bid amount, bid strategy, rate structure, personnel policy,
method or practice of soliciting or obtaining or doing business by the Company,
or any other confidential or proprietary information whatsoever relating to the
Company or its Affiliates, whether or not obtained with the knowledge and
permission of Purchaser or its Affiliates. BETI and Bird further covenant and
agree that for a period of three years from the Closing Date, they shall not
divulge any such confidential or proprietary information which it may acquire
during any transition period in which it assists or consults with Purchaser or
its Affiliates to facilitate the transfer and the continued success of the
Company, respecting such confidential and proprietary information in trust for
the sole benefit of Purchaser and its Affiliates and their successors and
assigns. The foregoing provisions shall not be applicable to any disclosure or
use of confidential information or knowledge that can be demonstrated to have
(i) been publicly known prior to the date of this Agreement, (ii) become well
known by publication or otherwise not due to the unauthorized act or omission on
the part of BETI or Bird or their Affiliates, or (iii) been supplied to BETI or
Bird by a third party without violation of the rights of the Company or the
Purchaser or any other party.
Section 5.7 Tax Election.
The Company, Bird or BETI will not make any elections which changes the
tax basis of the Company's assets or liabilities for any date subsequent to
December 31, 1994 other than (i) depreciation of fixed assets through methods
established in the 1994 federal income tax returns of the Company or (ii)
changes in the normal course of business.
Section 5.8 Notification of Certain Events.
Bird covenants and agrees that it shall provide written notice to GTSD
within 15 days of execution of an agreement providing for: (i) the merger or
consolidation of Bird with or into any other entity, (ii) the sale of all or
substantially all of the assets of Bird to another entity, (iii) the
liquidation, dissolution or any other similar fundamental corporate transaction.
Section 5.9 Sharing of Expenses for RFI Work Plan.
The Company and Bird covenant and agree that they shall share equally
all costs and expenses for Phase I of the RFI Work Plan which has been submitted
to the Texas Natural Resource Conservation Commission ("TNRCC"). In connection
therewith, the Company covenants and agrees that it shall use all reasonable
efforts to minimize the costs and expenses of
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such work and to use the Company's personnel to perform such work wherever
reasonably possible.
Section 5.10 Closure Trust Fund.
The parties hereto covenant and agree that all contributions by, or on
behalf of, the Company to the date hereof to the closure trust fund pursuant to
that certain Trust Agreement between the Company, as grantor, and Texas Commerce
Bank, N.A., as trustee, dated December 8, 1992 as required by the Texas Water
Commission, the predecessor to the TNRCC, shall remain an asset of the Company
following the Closing, and Bird, BETI or its Affiliates shall have no right or
claim to such contributions. The parties further covenant and agree that the
closure trust fund shall not be deemed to be a current asset for purposes of
Bird's obligations pursuant to Section 2.3(d). GTSD and GTSD Sub covenant and
agree that they will use their reasonable efforts to cause the Company to
self-insure for any of the plant closure obligations mandated by the TNRCC and,
in the event the Company is able to do so within two (2) years from the date of
Closing hereunder, without any additional direct or indirect cost to the
Company, effect on the Company's credit, or credit enhancement by GTSD or its
Affiliates, it will distribute any funds contributed by the Company, BETI or
Bird prior to the Closing and received from the termination of the trust fund,
less any reasonable out of pocket expenses incurred by GTSD, the Company or
their Affiliates in connection therewith, promptly to Bird. In the event the
Company is able to reduce the plant closure obligations mandated by the TNRCC
within two (2) years from the date of Closing hereunder, it will distribute to
Bird a portion of the funds contributed by the Company, BETI or Bird prior to
the Closing, and such portion shall equal the product of the aggregate amount of
funds contributed prior to the Closing and the percentage reduction in the
aggregate funding obligation of $2 million. The distributions to Bird required
by the previous sentence will be made either (i) when funds are released from
the trust fund, (ii) as the annual payments to the trust fund are reduced to the
extent of such reduction or (iii) when the trust fund is terminated earlier than
when it would have terminated otherwise but for the reduction.
Section 5.11 Knowledge of the Company.
For purposes of Article III hereof, the knowledge of the Company or the
Minority Shareholders shall not be imputed to the knowledge of Bird or BETI
whenever a representation or warranty contained therein is made to the knowledge
of Bird or BETI.
Section 5.12 Vehicle Leases.
The Company agrees to assume the current leases for the Company's
automobiles that are reflected on Schedule 5.12 hereto pursuant to the terms
that are reflected on such schedule.
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Section 5.13 Use of Company Logo.
If and to the extent that the logo used by the Company prior to the
date hereof is owned by BETI, Bird or an Affiliate thereof, then such party
hereby assigns to the Company the right to use such logo for a period of two (2)
years from the date hereof and such party agrees to execute any and all
documents or instruments that may be reasonably necessary, as determined by
counsel to the Company, to evidence such assignment.
ARTICLE VI: CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
Unless waived in writing by Purchaser in its sole discretion, the
obligations of Purchaser hereunder shall be subject to the fulfillment, prior to
or at the Closing, of each of the following conditions precedent:
Section 6.1 Receipt of Stock Certificates.
The Purchaser shall concurrently receive the certificates for the Stock
contemplated by Article II, Section 2.1 hereof.
Section 6.2 Minority Shareholders Agreements.
The Purchaser, GTSD and the Minority Shareholders shall have entered
into the Minority Shareholders Agreements, including the Shareholders Agreement,
the Employment Agreements and the License Agreement in forms acceptable to the
Purchaser and GTSD.
Section 6.3 Payments by Bird.
Bird shall have paid (i) any amount required pursuant to Article II,
Section 2.3(d) of this Agreement and (ii) any costs incurred by the Company in
connection with putting the Bird Gulf Coast Recycling Center in a state of
suspension during the period of August 31, 1995 until the Closing Date, which
includes putting the desorber and other processing equipment in a safe shutdown
condition, removing substantially all processed and unprocessed inventory and
residuals from the site, emptying tanks that were being used by the Company and
continuing the employment of the employees listed on Schedule 6.3 and providing
the necessary support from the Company to complete GTSD's due diligence effort,
provided that Bird will be limited to a maximum payment amount of $200,000 for
such costs pursuant to this clause (ii) of this Section 6.3.
Section 6.4 Release from Liability.
The Minority Shareholders shall have released Purchaser, its Affiliates
and their officers, directors, stockholders, employees, agents, successors and
assigns from any and all obligations,
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liabilities, claims, causes of action and damages whether past or present, real
or contingent, in tort or contract or otherwise, in law or equity, including but
not limited to, obligations in connection with the payment of severance benefits
to any Minority Shareholders, whether arising under such individual's current
employment agreements and arrangements with Bird, BETI, or any other subsidiary
of Bird, or otherwise and such release shall be in form and substance reasonably
acceptable to Purchaser and its counsel.
Section 6.5 Required Approvals.
All approvals, consents, waivers, actions or consents from any
Applicable Authority or any other Person required for the consummation of the
transactions contemplated hereby and necessary for the Company to engage in the
Company's Business following the Closing shall have been obtained and shall be
effective and in form and substance satisfactory to the Purchaser.
Section 6.6 Filings.
The Company, BETI and Bird shall make all filings and take all other
actions necessary to cause the transaction contemplated hereby to become
effective under applicable law.
Section 6.7 Actions or Events Interfering with Agreement.
No investigation, suit, action or other proceeding shall be threatened
or pending before any court or governmental agency which seeks to restrain,
prohibit or delay, or seeks damages or other relief in connection with, this
Agreement or the transactions contemplated hereby, or which could have a
Material Adverse Effect upon the financial condition, Company's Business,
Company Assets or prospects of the Company. The Company shall not have been
adversely affected in any material way by any act of God, fire, flood, war,
labor disturbance, legislation (proposed or enacted) or other event or
occurrence, and there shall have been no change in the Company Assets, financial
condition, customer or business prospects since August 31, 1995 other than a
change resulting from the shutdown or suspension of operations of the Gulf Coast
Recycling Center.
Section 6.8 Representations and Warranties.
The representations and warranties set forth in Article III shall be
true and accurate at and as of the Closing Date as though such representations
and warranties were made at and as of such time.
Section 6.9 Compliance with Agreements.
The Company, BETI and Bird shall have performed and complied in all
respects with all of the agreements, covenants and conditions required by this
Agreement to be performed or complied with by them prior to or at the Closing
Date.
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Section 6.10 Delivery of Certificates.
(a) Each of the Company, BETI and Bird shall have delivered to
Purchaser a certificate of its president or any vice president certifying (i)
the fulfillment of the conditions set forth in this Article VI, (ii) that
attached as exhibits thereto are certified, true, correct and complete copies of
resolutions of the Board of Directors of such corporation authorizing the
execution and delivery of this Agreement, the performance of that party's
obligations hereunder and appointing one or more specific individuals to execute
and deliver all of the instruments and documents required to be executed and
delivered by such party pursuant to the terms and conditions hereof and (iii)
the names and signatures of the officers authorized to execute and deliver this
Agreement and the other documents and instruments required hereby and that all
such officers still hold the office or position set forth in such certificate.
(b) The Company shall have delivered a certificate, dated as of the
Closing Date, executed by the President and the Secretary of the Company, that:
(i) certifies that attached as exhibits thereto are certified true, correct and
complete copies of the Company's Organizational Documents and (ii) certifies
that as of the Closing Date, the Company's Organizational Documents have not
been revoked, rescinded or amended and remain in full force and effect.
(c) The Company shall have furnished to Purchaser certificates of valid
existence and good standing from the jurisdictions in which the Company is
organized and certificates of qualification to do business as a foreign company
in each of the jurisdictions in which such qualification is necessary.
Section 6.11 Resignation of Officers and Directors.
If and to the extent requested by the Purchaser, the existing officers
and directors of the Company shall have submitted resignations to be effective
upon the Closing.
Section 6.12 Termination of Certain Agreements.
The Bird Instruments, the License Agreement between Jim Hogan and the
Company dated April 1, 1993, the Employment Letter between the Company and Brad
Hogan dated August 9, 1991 and the Employment Letter between the Company and
Barry Hogan dated July 1, 1994 shall have been terminated at or prior to the
Closing and the Company, GTSD and its Affiliates shall have been released from
any and all obligations and liabilities under such agreements.
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ARTICLE VII: CONDITIONS PRECEDENT TO THE COMPANY'S, BETI'S AND
BIRD'S OBLIGATIONS
Unless waived in writing by the Company, BETI or Bird, the obligations
of the Company, BETI or Bird hereunder shall all be subject to the fulfillment,
prior to or at the Closing, of each of the following conditions precedent:
Section 7.1 Compliance with Agreements.
Purchaser and GTSD shall have performed and complied in all material
respects with all of its agreements, covenants and conditions required by this
Agreement to be performed or complied with by Purchaser and GTSD prior to or at
the Closing Date.
Section 7.2 Release of Liabilities.
The Minority Shareholders shall have released the Company, BETI, Bird,
any of their Affiliates and any of their officers, directors, stockholders,
employees, agents, successors and assigns from any and all obligations,
liabilities, claims, causes of action and damages, whether past or present, real
or contingent, in tort or contract or otherwise, in law or equity, including but
not limited to, obligations in connection with the payment of severance benefits
to any Minority Shareholders, whether arising under such individual's current
employment agreements and arrangements with Bird, BETI, or any other subsidiary
of Bird, or otherwise, and such release shall be in form and substance
reasonably acceptable to the Company, BETI and Bird and their counsel.
Section 7.3 Representations and Warranties.
The representations and warranties set forth in Article IV shall be
true and accurate at and as of the Closing Date as though such representations
and warranties were made at and as of such time.
Section 7.4 Compliance with Agreements.
The Purchaser and GTSD shall have performed and complied in all
respects with all of its agreements, covenants and conditions required by this
Agreement to be performed or complied with by it prior to or at the Closing
Date.
Section 7.5 Delivery of Certificates.
The Purchaser and GTSD shall have delivered to the Company, BETI and
Bird a certificate of their president or any vice president certifying (i) the
fulfillment of the conditions set forth in this Article VII, (ii) that attached
as exhibits thereto are certified, true, correct and complete copies of
resolutions of the Board of Directors of such corporation authorizing the
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execution and delivery of this Agreement, the performance of the Purchaser's and
GTSD's obligations hereunder and appointing one or more specific individuals to
execute and deliver all of the instruments and documents required to be executed
and delivered by the Purchaser and GTSD pursuant to the terms and conditions
hereof and (iii) the names and signatures of the officers authorized to execute
and deliver this Agreement and the other documents and instruments required
hereby and that all such officers still hold the office or position set forth in
such certificate.
Section 7.6 Proceedings Taken.
All proceedings, corporate or other, to be taken by the Purchaser and
GTSD, in connection with the transactions contemplated by this Agreement, shall
have been taken.
ARTICLE VIII: INDEMNIFICATION
Section 8.1 Indemnification by BETI and Bird.
(a) BETI and Bird hereby jointly and severally covenant and agree to
indemnify the Purchaser, GTSD and their officers, directors, employees, agents,
Affiliates, successors and assigns and hold each of them harmless against and
with respect to any and all liabilities, losses, damages, claims, deficiencies,
costs and expenses, interest, awards, judgments and penalties (including,
without limitation, reasonable legal costs and expenses) actually suffered or
incurred by it, (hereinafter, a "Loss"), arising out of or resulting from:
(i) the breach of any representation or warranty by the BETI or
Bird contained herein or in any document delivered hereunder at the Closing;
(ii) the breach of any covenant or agreement by the Company, BETI
or Bird contained herein or in any document delivered hereunder at the Closing;
or
(iii) any investigation, suit, action, demands, assessments,
judgments or other proceeding by or before any court or governmental or
regulatory agency which seeks to restrain, modify, prohibit or revoke, or seeks
damages or other relief in connection with the consummation of this transaction.
Notwithstanding anything herein to the contrary, the fact
that an item may be disclosed on a schedule to this Agreement in response to a
representation or warranty contained in Article III hereto, shall not in any way
limit any rights that an indemnified party referred to in this Section 8.1(a)
shall have to indemnification for any Losses resulting therefrom, except to the
extent a statement in such schedule expressly limits or excludes any right to
indemnity in respect thereof. The inclusion of an item on a schedule attached
hereto is merely for purposes of disclosure and not to release Bird or BETI from
any liability therefor, except as may be otherwise expressly provided on the
schedule.
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(b) In addition to any other indemnification provided herein, BETI and
Bird hereby jointly and severally covenant and agree to indemnify the Company,
Purchaser, GTSD and their officers, directors, employees, agents, Affiliates,
successors and assigns and hold each of them harmless against and with respect
to any and all Losses arising out of or resulting from:
(i) the litigation between Universal Process Equipment, Inc. and
Universal Industrial Refrigeration, Inc. and the Company and an Affiliate of
Bird and the litigation between BAC Holdings Inc. and the Company;
(ii) any additional assessment against the Company for taxes of
any kind due and payable for the period up to and including the Closing Date;
and
(iii) items II, III, IV and VI reflected on Schedule 3.9 hereto.
Section 8.2 Indemnification by Purchaser and GTSD.
Purchaser and GTSD (but not their officers, directors, stockholders,
employees, agents or Affiliates) hereby jointly and severally covenant and agree
to indemnify BETI and Bird and their officers, directors, employees, agents,
Affiliates, successors and assigns and holds each of them harmless against and
with respect to any and all Losses, arising out of or resulting from:
(a) the breach of any representation or warranty by Purchaser or GTSD
contained herein or in any document delivered hereunder at the Closing;
(b) the breach of any covenant or agreement by Purchaser or GTSD
contained herein or in any document delivered hereunder at the Closing;
(c) payment claims by any of the Company's vendors or suppliers to the
extent such claims are fully reflected as payables on the August 31, 1995
balance sheet of the Company; or
(d) payment claims that arise pursuant to the leasing of the Company's
automobiles, which leases are assumed by the Company pursuant to Section 5.12
hereto, to the extent of the payment obligations reflected on Schedule 5.12
hereto.
Section 8.3 Procedures for Third Party Claims.
Promptly after the assertion by any third party of any claim against
any party entitled to be indemnified under this Article VIII (the "Indemnitee")
that, in the judgment of such Indemnitee, may result in the incurrence by such
Indemnitee of Losses for which such Indemnitee would be entitled to
indemnification pursuant to this Agreement, such Indemnitee shall deliver to the
other party or parties who has indemnified such Losses hereunder ("Indemnitor")
a written notice describing such claim. Such Indemnitor may participate in and,
at its option upon acknowledgment of Indemnitee's right to indemnification for
such matter, assume the defense of the Indemnitee against such claim, including
the employment of counsel,
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who shall be reasonably satisfactory to such Indemnitee. In such case, any
Indemnitee shall have the right to employ separate counsel in any such action or
claim and to participate in the defense thereof, but the fees and expenses of
such counsel shall not be at the expense of the Indemnitor unless (i) the
Indemnitor shall have failed, within a reasonable time after having been
notified by the Indemnitee of the existence of such claim as provided in the
preceding sentence, to assume the defense of the such claim, (ii) the employment
of such counsel has been specifically authorized in writing by the Indemnitor or
(iii) the named parties to any such action (including impleaded parties) include
both such Indemnitee and the Indemnitor and such Indemnitee shall have been
advised in writing by such counsel that there may be conflicting interests
between Indemnitee and the Indemnitor in the legal defense thereof. No
Indemnitor shall be liable to indemnify any Indemnitee for any compromise or
settlement of any such action or claim effected without the consent of the
Indemnitor.
Section 8.4 Limits for Recovery of Losses.
Notwithstanding anything herein to the contrary, BETI and Bird shall
not be liable as Indemnitors for any Losses of Purchaser under this Article VIII
unless and until the aggregate amount of all Losses hereunder by Purchaser
equals or exceeds $50,000, in which case BETI and Bird shall be jointly and
severally liable for all Losses pursuant to Section 8.1(a) of the indemnified
parties identified in Section 8.1 up to a maximum aggregate amount of $500,000
(in excess of the $50,000 referred to above) and BETI and Bird shall be jointly
and severally liable for all Losses pursuant to Section 8.1(b)(ii) of the
indemnified parties identified in Section 8.1 up to a maximum aggregate amount
of $125,000.
Section 8.5 Waiver of Contribution.
Neither BETI nor Bird shall have any right to seek contribution from
the Company in the event that BETI and/or Bird is required to make any payments
under this Article VIII.
Section 8.6 Sole Remedy.
Recourse under this Article VIII shall be Purchaser's, GTSD's and their
officers, directors, employees, agents, Affiliates, successors and assigns sole
remedy against BETI or Bird.
ARTICLE IX: SURVIVAL
Except for actions based upon a claim of fraud (which shall survive
without limitation), all representations and warranties made pursuant to or in
connection with this Agreement shall survive the Closing, but shall terminate
two (2) years after the Closing Date; provided, that there shall be no such
termination with respect to any representation or warranty as to which a bona
fide claim has been asserted prior to such date.
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ARTICLE X: MISCELLANEOUS
Section 10.1 No Assignment.
No assignment by any of the parties of their respective rights nor
delegation by any of the parties of their respective duties shall be permitted
hereunder without the prior written consent of all other parties hereto.
Section 10.2 Costs.
Each party hereto shall pay all fees and expenses incurred by it in
connection with the negotiation, preparation, and performance of this Agreement,
including fees and disbursements of their respective counsel, accountants and
financial advisors.
Section 10.3 Publicity.
Prior to Closing, Purchaser, GTSD, the Company, BETI and Bird agree not
to issue any statement or communication to the public or the press regarding the
transactions contemplated by this Agreement without the prior written consent of
the other parties; provided, however, that each party shall be permitted, upon
notice to the other, to make such disclosures to the public or such governmental
entities as its counsel reasonably should deem necessary to maintain compliance
with applicable law.
Section 10.4 Confidentiality.
Purchaser, GTSD, the Company, BETI and Bird will hold, and will cause
their employees, representatives, agents and affiliated persons to hold in
strict confidence, and not disclose to any other party, and not use in any way
except in connection with the transactions contemplated hereby, without the
prior written consent of the other party, all confidential information obtained
from the other party in connection with the transactions contemplated by this
Agreement (including the existence of this Agreement, any of the terms hereof,
and the negotiations between the parties hereto), except such information may be
disclosed: (a) to Applicable Authorities and, where necessary, to any other
person in connection with the obtaining of the Licenses and Approvals and the
consents or waivers contemplated or required by the terms of this Agreement; (b)
if required by court order or decree or any Applicable Law; (c) if it is
publicly available through no act or failure to act of such party; (d) was
already known to such party on a confidential basis on the date of receipt; (e)
during the course of or in connection with any litigation, governmental
investigation, arbitration or other proceedings based upon or in connection with
the subject matter of this Agreement, including the failure of the transactions
contemplated hereby to be consummated; or (f) if it is otherwise expressly
provided for herein.
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Section 10.5 Parties in Interest.
This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the respective successors, heirs, personal representatives, and
assigns permitted under the terms of this Agreement.
Section 10.6 Entire Agreement.
This Agreement, any Exhibits, Schedules and any other writings
delivered pursuant hereto which form a part hereof and all other documents
delivered contemporaneous with the execution hereof contain the entire
understanding of the parties with respect to its subject matter and supersede
all prior oral and written agreements and understandings between the parties
with respect to its subject matter. In this regard, although the Bird Letter of
Intent and the Minority Shareholders' Letter of Intent shall be merged into and
superseded by this Agreement, certain descriptive language contained therein is
expressly referred to herein and shall be interpreted as if expressly set forth
herein.
Section 10.7 Construction.
The Article and Section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. The masculine pronoun shall include the
feminine and neuter, and vice versa, where the context so requires.
Section 10.8 Notices.
Except as otherwise expressly stated, all notices, claims,
certificates, requests, demands and other communications hereunder shall be in
writing and shall be deemed given upon the earlier of (i) when it is personally
delivered, (ii) three (3) days after having been mailed by certified mail,
postage prepaid, return receipt requested, (iii) two (2) days after having been
sent by recognized overnight delivery service or (iv) one (1) day after having
been sent by facsimile transmission, addressed as follows:
If to GTSD:
GTS Duratek, Inc.
8955 Guilford Road, Suite 200
Columbia, Maryland 21046
Attention: Robert E. Prince, President and Chief
Executive Officer
Telecopy No.: (301) 621-8211
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with a copy to:
Piper & Marbury L.L.P.
Charles Center South
36 South Charles Street
Baltimore, Maryland 21201-3010
Attention: Henry D. Kahn, Esquire
Telecopy No.: (410) 576-1700
If to Purchaser:
GTSD Sub II, Inc.
8955 Guilford Road, Suite 200
Columbia, Maryland 21046
Attention: Robert E. Prince, President
Telecopy No: (301) 621-8211
with a copy to:
Piper & Marbury L.L.P.
Charles Center South
36 South Charles Street
Baltimore, Maryland 21201-3010
Attention: Henry D. Kahn, Esquire
Telecopy No.: (410) 576-1700
If to Company:
Bird Environmental Gulf Coast, Inc.
2700 Avenue S
San Leon, Texas 77539
Attention: Bob Hensel, President
Telecopier No.: (713) 559-1364
with a copy to:
Piper & Marbury L.L.P.
Charles Center South
36 South Charles Street
Baltimore, Maryland 21201-3010
Attention: Henry D. Kahn, Esquire
Telecopy No.: (410) 576-1700
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If to BETI:
Bird Environmental Technologies, Inc.
1077 Pleasant Street
Norwood, Massachusetts 02062
Attention: Frank S. Anthony, Vice President and General Counsel
Telecopy No.: (617) 551-9507
If to Bird:
Bird Corporation
1077 Pleasant Street
Norwood, Massachusetts 02062
Attention: Frank S. Anthony, Vice President and General Counsel
Telecopy No.: (617) 551-9507
or to such other address as the person to whom notice is to be given may have
previously furnished to the other in writing in the manner set forth above,
provided that notice of a change of address shall be deemed given only upon
receipt.
Section 10.9 Counterparts.
This Agreement may be executed simultaneously in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 10.10 Governing Law.
This Agreement is governed by and construed and enforced in accordance
with the laws of the State of Maryland, excluding any laws thereof which would
direct the application of the law of another jurisdiction, and exclusive venue
for filing any lawsuit shall be in the federal courts in Maryland.
Section 10.11 Specific Performance.
The parties acknowledge and agree that the breach of the provisions of
this Agreement could not be adequately compensated with monetary damages, and
the parties hereto agree, accordingly, that injunctive relief and specific
performance shall be appropriate remedies to enforce provisions of this
Agreement and waive any claim or defense that there is an adequate remedy at law
for such breach; provided, however, that nothing herein shall limit the remedies
herein, legal or equitable, otherwise available and all remedies herein are in
addition to any remedies available at law or otherwise.
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Section 10.12 Severability.
If any provision of this Agreement shall be held to be illegal, invalid
or unenforceable under any applicable law, then such contravention or invalidity
shall not invalidate the entire Agreement. Such provision shall be deemed
modified to the extent necessary to render it legal, valid and enforceable, and
if no such modification shall render it legal, valid and enforceable, then this
Agreement shall be construed as if not containing the provision held to be
invalid, and the rights and obligations of the parties shall be construed and
enforced accordingly.
Section 10.13 Further Assurances.
From time to time, at Purchaser's request and without further
consideration, BETI and Bird shall execute and deliver to Purchaser such
documents and take such other action as Purchaser may reasonably request in
order to consummate more effectively the transactions contemplated hereby.
Section 10.14 No Drafting Presumption.
Each of the parties hereto shall be deemed to have participated equally
in the drafting and preparation of this Agreement and, accordingly, no
presumption shall arise concerning the interpretation of any of the provisions
hereof with respect to the party or parties responsible for its preparation.
Section 10.15 Incorporation by Reference; Use of Certain Terms.
All Exhibits and Schedules attached to this Agreement shall be deemed
incorporated herein by reference as if fully set forth herein. When the context
requires, the gender of all words used herein shall include the masculine,
feminine and neuter and the number of all words shall include the singular and
plural.
Section 10.16 Amendment and Waiver.
This Agreement may not be amended or modified except by a written
instrument signed by the parties hereto. The waiver by any party of such party's
rights under this Agreement in any particular instance or instances, whether
intentional or otherwise, shall not be considered as a continuing waiver which
would prevent subsequent enforcement of such rights or of any other rights.
Section 10.17 Waiver of Jury Trial.
THE COMPANY, BETI, BIRD, PURCHASER AND GTSD HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT, THE STOCK, OR ANY
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DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
TRANSACTION, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE COMPANY,
BETI, BIRD, PURCHASER AND GTSD FURTHER WARRANT AND REPRESENT THAT EACH HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
SUPPLEMENTS OR MODIFICATIONS TO (OR ASSIGNMENTS OF) THIS AGREEMENT OR THE STOCK.
IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO
A TRIAL (WITHOUT A JURY) BY THE COURT.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the parties hereto on the date first above written.
WITNESS/ATTEST: BIRD ENVIRONMENTAL GULF COAST, INC.
By:_______________________________ By: _________________________(SEAL)
Frank A. Anthony
Vice President
BIRD ENVIRONMENTAL TECHNOLOGIES, INC.
By:_______________________________ By: _________________________(SEAL)
Frank A. Anthony
Vice President
BIRD CORPORATION
By:_______________________________ By: _________________________(SEAL)
Frank A. Anthony
Vice President
GTS DURATEK, INC.
By:_______________________________ By: _________________________(SEAL)
Diane R. Brown, Secretary Robert F. Shawver
Executive Vice President
GTSD SUB II, INC.
By:_______________________________ By: _________________________(SEAL)
Diane R. Brown, Secretary Robert F. Shawver
Vice President
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