EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
MERCURY WASTE SOLUTIONS, INC.
AND
U.S. ENVIRONMENTAL, INCORPORATED
DATED JANUARY 4, 1996
ASSET PURCHASE AGREEMENT
This Agreement ("Agreement") is made and entered into this 4th day of
January, 1996, by and between MERCURY WASTE SOLUTIONS, INC., a Minnesota
corporation ("Buyer"), and U.S. ENVIRONMENTAL, INCORPORATED, a Minnesota
corporation ("Seller").
WITNESSETH:
WHEREAS, Seller is engaged in the business of recycling of high
intensity lamps, which is conducted in Roseville, Minnesota (the "Roseville
Business") as well as the business of recycling high intensity lamps and
distilling/retorting mercury, which is conducted in Union Grove, Wisconsin (the
"Union Grove Business") (hereinafter the Roseville Business and the Union Grove
Business shall be referred to collectively as the "Business"); and
WHEREAS, Buyer desires to acquire substantially all of the assets of
Seller relating to the Business, and Seller desires to sell and transfer such
assets to Buyer, all pursuant to the terms and conditions contained in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
following mutual covenants, warranties and undertakings of the parties, it is
agreed by the parties as follows:
SECTION 1. PURCHASE OF ASSETS; LIABILITIES ASSUMED.
1.1 ASSETS. Upon the terms and subject to the conditions set
forth herein, Buyer agrees to purchase from Seller and Seller agrees to sell to
Buyer at Closing (as hereinafter defined), all of Seller's assets, properties
and rights of every kind and description used or useful in connection with the
Business, whether tangible or intangible, real, personal or mixed, wherever
located and whether or not recorded on the books and records of Seller, as the
same shall exist on the Closing Date, except those identified in Section 1.2
hereof (the "Assets"), including, without limitation: (i) all inventory,
materials, supplies and work in process ("Inventory"); (ii) all accounts
receivable existing as of January 1, 1996, including without limitaton those
listed on Exihibit A-1 attached hereto and all past due accounts for the years
1994 and 1995 ("Accounts Receivable"); (iii) all machinery, tools and equipment,
including all motor vehicles, trucks and fork lifts ("Machinery and Equipment");
(iv) all furniture and fixtures, including trade fixtures and leasehold
improvements ("Furniture and Fixtures") and all other tangible personal property
relating to the Business; (v) all patents, trademarks, copyrights, service marks
and trade names, including without limitation, the name of "USA Lights" (the
"Intellectual Property"); (vi) all trade secrets, processes and know-how,
mailing lists, customer lists, vendor lists, telephone numbers, goodwill and
proprietary information relating to the Business as a going concern; (vii) all
rights of Seller under all contracts, agreements, understandings, purchase and
sales orders, licenses and permits to which Seller is a party or by which Seller
or its property is bound, and any offers, bids or commitments obligating Seller
to enter into any of the above (the "Contracts") which Buyer elects to assume;
(viii) all licenses, permits, licensing approvals and notifications,
governmental or otherwise (to the extent transferable), including all state and
federal environmental licenses and permits and all other intangible assets
relating to the Business; (ix) the sum of $18,000 plus any and all other sums on
deposit in the reserve fund maintained at Richfield Bank & Trust (the "Reserve
Fund"); (x) any and all distribution rights in lamp processing and mercury
retorting equipment; (xi) all computer systems and computer software relating to
the Business; and (xii) all of those assets set forth on Exhibit A-1 attached
hereto.
1.2 EXCLUDED ASSETS. The following property and assets are
hereby expressly excluded from the property and assets being bought and sold
pursuant to this Agreement: (i) all cash and cash equivalents on hand or on
deposit with any financial institution, including without limitation,
miscellaneous deposits and prepaid expenses as at January 1, 1996 (except the
Reserve Fund), (ii) any rights of Seller under fully executed pending purchase
agreements on which deposits have been made for the purchase of a piece of Model
2000 lamp processing equipment (the "Lamp Processing Equipment") prior to
January 1, 1996; (iii) any rights to royalties in favor of Seller arising from
purchase agreements for the sale of the Lamp Processing Equipment consummated
prior to January 1, 1996; (iv) Seller's corporate minute book and stock records;
(v) all Contracts not assumed by Buyer; (v) all notes receivable; (vi) all tax
refunds relating to periods or transactions occurring prior to the Closing Date;
(vii) Seller's rights under this Agreement; and (viii) all motor vehicles other
than the 1994 Ford Ranger, title to which will be transferred to Buyer.
1.3 ASSUMED LIABILITIES. Buyer agrees, upon consummation of
the Closing, to assume those obligations first arising after the Closing Date
under the Contracts specifically assumed by Buyer, which include those leases
and obligations identified on Exhibit A-2 attached hereto (but specifically
excluding obligations to cure any defaults under any of the Contracts arising on
or prior to the Closing Date or based upon events occurring or circumstances
existing on or prior to the Closing Date) (collectively, the "Assumed
Liabilities"). In addition, Buyer will assume and agree to pay fifty percent
(50%) of the actual costs for the items listed on Exhibit A-3 attached hereto
relating to recent construction and costs at Union Grove, with Seller paying the
other fifty percent (50%) of such costs in cash to Buyer, which payment shall be
made to Buyer on the Delivery Date referred to in Section 6 hereof.
1.4 EXCLUDED LIABILITIES. Except for the Assumed Liabilities,
no liabilities or obligations of Seller of any kind or nature, whether accrued,
absolute, fixed, liquidated, contingent, unliquidated, future or otherwise, are
being assumed by Buyer in connection with the purchase of the Assets (all
excluded liabilities or obligations being hereinafter referred to as the
"Excluded Liabilities"), and Seller shall retain all obligations and liabilities
not specifically assumed by Buyer pursuant to this Agreement.
1.5 BULK SALES COMPLIANCE. Without admitting that any such
laws apply, Buyer hereby waives compliance by Seller with the provisions of the
Bulk Sales Law of any state, and Seller warrants and agrees to pay and discharge
when due all claims which could be asserted against Buyer by reason of such
non-compliance to the extent that such liabilities are not Assumed Liabilities.
SECTION 2. PURCHASE PRICE; SECURITY DEPOSITS.
2.1 PURCHASE PRICE. Buyer and Seller agree that the purchase
price (the "Purchase Price") for the Assets to be sold and purchased hereunder
is:
a. One Million Two Hundred Thirty-Eight Thousand Two Hundred Fifty-Six
and 60/100 Dollars ($1,238,256.60).
2.2 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be
paid by Buyer as follows:
a. $790,000 of the Purchase Price shall be paid in cash at Closing by
certified check, cashier's check or wire transfer of funds to a bank account
designated by Seller (the "Cash Proceeds"). Out of the Cash Proceeds,
$448,256.60 shall be applied to the purchase of the Union Grove Business. The
remainder of the Purchase Price shall be applied to purchase of the Roseville
Business.
b. $448,256.60 shall be payable pursuant to the terms of a promissory
note delivered to Seller at Closing made payable by Buyer to the order of Seller
in the form of Exhibit B hereto (the "Note"), which Note shall bear interest at
a fixed rate equal to ten percent per annum (10%). Accrued interest on the Note
shall be payable monthly. The principal balance and all unpaid accrued interest
shall be due and payable in full on the fifth anniversary of the Closing Date.
Buyer may prepay at any time, in Buyer's sole discretion, the Note, to the
extent available, out of excess cash flow in accordance with the terms of the
Note. The principal balance of the Note shall be reduced by the cost of
manufacturing and installation of the Lamp Processing Equipment located in the
Union Grove, WI facility listed on Seller's financial statements, if Seller
removes such Lamp Processing Equipment to fulfill an existing purchase order, as
more specifically provided in the Distribution Rights ▇▇▇▇ of Sale Agreement
(defined below).
2.3 ALLOCATION OF THE PURCHASE PRICE. At Closing, Buyer and
Seller hereby agree to allocate the Purchase Price among the Assets as set forth
on Exhibit C attached hereto. Seller and Buyer hereby agree to use the
allocation set forth on Exhibit C in the preparation of their respective income
tax returns and in the preparation of the Internal Revenue Service Form 8594
which will accompany such tax returns.
SECTION 3. CLOSING; MATTERS RELATING TO CLOSING.
3.1 DATE OF CLOSING. The purchase shall be effective as of
midnight, January 1, 1996. The closing ("Closing") of the transactions
contemplated by this Agreement shall take place on January 4, 1996 (the "Closing
Date") at the offices of ▇▇▇▇▇▇ and ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇.
3.2 INSTRUMENTS OF TRANSFER. At Closing, Seller shall deliver
to Buyer possession of the Assets and shall further deliver to Buyer a duly
executed ▇▇▇▇ of sale, in the form of Exhibit D-1 attached hereto (the "▇▇▇▇ of
Sale"), appropriate transfers of certificates of title for motor vehicles, an
assignment and assumption agreement regarding the Contracts to be assumed by
Buyer, if any, and the other intangible assets being purchased and sold pursuant
to this Agreement and such other assignments and instruments of conveyance,
containing standard warranties of title, transferring, assigning and conveying
good and marketable title to the Assets to Buyer free and clear of all liens,
restrictions and encumbrances. In addition, the distribution rights referred to
in Section 1.1(x) hereof will be transferred by Seller pursuant to and in
accordance with the terms of a Distribution Rights ▇▇▇▇ of Sale Agreement in the
form of Exhibit D-2 attached hereto (the "Distribution Rights ▇▇▇▇ of Sale
Agreement").
SECTION 4. REPRESENTATIONS OF SELLER. Seller represents and warrants to
Buyer that:
4.1 ORGANIZATION. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Minnesota
with full corporate power and authority to own or lease its properties, to carry
on its business and to execute, deliver and fully perform its obligations under
this Agreement and the transactions contemplated hereby.
4.2 VALID AGREEMENT. This Agreement and all agreements
contemplated hereunder are valid, binding and enforceable in accordance with
their terms, subject to limitations that may result from bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to creditor's rights and
limitations on the remedy of specific performance and other forms of equitable
relief.
4.3 AUTHORIZATION. This Agreement has been duly executed and
delivered by Seller and has been duly and effectively authorized by the board of
directors and approved by the requisite vote of the shareholders of Seller. No
further corporate authorization or other authoriza tion, consent or approval by
any governmental authority or by any other person is necessary with respect to
the execution, delivery and performance of this Agreement by Seller. The
execution of this Agreement and the consummation of the transactions
contemplated hereunder will not conflict with or result in the breach of any
terms or provisions of Seller's articles of incorporation, bylaws or any
indenture, mortgage, lease, contract or agreement to which Seller is a party or
by which it or any of the Assets are bound.
4.4 UNDISCLOSED LIABILITIES. Seller does not have knowledge of
any uninsured or undisclosed liability of any nature or kind (whether accrued,
absolute, contingent or otherwise) or any indebtedness for borrowed money to any
person that has not been disclosed to Buyer in writing.
4.5 TITLE TO ASSETS. Seller has good and marketable title to
all of the Assets to be transferred pursuant to this Agreement, free and clear
of all liabilities, claims, obligations, security interests, liens, state and
federal tax liens and other encumbrances, provided, however, that the mercury
retorting/distilling equipment located in Union Grove, WI which was manufactured
and developed by Seller with Resource Technology, Inc. ("RTI") may be subject to
rights and interests in favor of RTI.
4.6 POSSESSION OF ASSETS. Seller has possession of all of the
Assets, and no other person has any right of possession, use or control of the
Assets, other than Seller.
4.7 CONDITION OF TANGIBLE ASSETS All of the tangible Assets
being bought and sold pursuant to this Agreement are in good working order,
ordinary wear and tear excepted, and will be such as of the Closing Date.
4.8 INTELLECTUAL PROPERTY; COMPUTER SYSTEMS AND SOFTWARE.
Seller owns, is licensed or otherwise has the right to use all Intellectual
Property and computer systems and software necessary to permit it to carry on
the Business as presently conducted.
4.9 LITIGATION; NO VIOLATIONS OF LAW. Other than as disclosed
on Schedule 4.9, there is no action, suit, proceeding, arbitration or
investigation (whether or not purportedly on behalf of Seller) at law or in
equity or before or by any court or governmental agency or instrumentality
pending or, to the best of Seller's knowledge, threatened against or affecting
Seller, the Business or any of the Assets. Seller is in compliance with all
laws, rules, regulations, orders, permits, easements, covenants, conditions and
restrictions relating to the Business and the Assets, and Seller has not
received any notice of violation thereof and knows of no facts that would
constitute grounds for a violation thereof, other than as disclosed on Schedule
4.9. Seller is not a party to or subject to, bound by or in default under, any
agreement, judgment, writ, injunction, decree, order, rule or regulation of any
court or governmental agency or instrumentality which contains any provision
which would or could operate to prevent the performance of this Agreement or any
of the transactions contemplated by this Agreement or which would have an
adverse effect on the Business or any of the Assets.
4.10 CONTRACTS. A list and brief summary of all Contracts are
included on Schedule 4.10. Each of the Contracts listed is a valid and binding
obligation of Seller and, to the best knowledge of Seller, of the other parties
thereto in accordance with the terms thereof, and there have been no actions or
omissions by Seller or, to the best knowledge of Seller, by the other parties
thereto, which would result in a default as defined under the terms of any such
Contract. To the extent that the Contracts are evidenced by documents, complete
and accurate copies thereof are attached hereto with Schedule 4.10. To the best
knowledge of Seller, there are no facts or conditions that have occurred or that
are anticipated to occur which, through the passage of time or the giving of
notice, or both, would constitute a default by Seller or, to the best knowledge
of Seller, by the other party or parties thereunder, which would cause a default
under the terms of any such Contract. Consummation of the transactions
contemplated by this Agreement do not require the consent of parties to the
Contracts, except as set forth in Schedule 4.10 and will not (and will not give
any person a right to) terminate or modify any rights of, or accelerate or
increase any obligation of, Seller. Except as disclosed in Schedule 4.10, all of
Seller's rights, title and interest in the Contracts are assignable to Buyer.
4.11 FINANCIAL STATEMENTS. All financial statements, including
balance sheets and operating statements, information regarding sales and
expenses of the Business, invoices, receipts, accounts payable of the Roseville
Business, and other information provided to Buyer concerning the operation of
the Business and the Assets of Seller have been accurate, complete and not
misleading.
4.12 TAX MATTERS. Seller has duly made, and shall continue to
make through the Closing Date, all deposits required by federal, state and local
law to be made with respect to employees' withholding and employment taxes. All
taxes or assessments of any kind or nature due and payable by Seller with
respect to the Assets or the Business on or before the date hereof have been
paid, including all sales and use taxes, and Seller has duly filed all federal,
state and other tax returns, reports and declarations required to be filed by
Seller with respect to the Assets or the Business. No notice or assessment of
deficiency has been made.
4.13 INVENTORY. All Inventory, including without limitation,
work-in-process and any HID lamps, is, as of the date hereof, and shall be, as
of the Closing Date, contained in accordance with and in conformity with any and
all relevant federal, state and local laws and regulations, the Stipulation
Agreement between Seller and the MPCA, and the terms of the proposed Compliance
Agreement referred to in Section 10(i)(2) hereof, and authority required by the
WDNR, and is and will be, as of the Closing Date, handled and processed in a
manner consistent with Seller's past business practices and the demands of its
customers.
4.14 LICENSES AND PERMITS. Seller possesses all permits,
licenses, approvals and notifications, governmental or otherwise, the absence of
which would have an adverse effect on the Business, including without limitation
all environmental permits and licenses from federal, state and local authorities
including the Minnesota Pollution Control Agency ("MPCA") and the Wisconsin
Department of Natural Resources ("WDNR").
4.15 ENVIRONMENTAL COMPLIANCE. Except as disclosed in writing
to Buyer on Schedule 4.15, neither the Seller nor any third party has deposited,
added, emitted, discharged, stored, used, generated, treated or disposed of,
whether temporarily or permanently, any contamination, waste or hazardous
substance on, under or about any of the real property within the United States
owned, leased, occupied, used, managed, controlled or operated by Seller (the
"Real Property") during the period in which Seller has owned, leased, occupied,
used, managed, controlled or operated such Real Property. Except as disclosed on
Schedule 4.15, Seller has at all times occupied, managed, held and used the Real
Property and operated the Business in compliance and currently is in compliance,
in all material respects, with all laws, rules and regulations relating to
pollution or protection of the environment, whether local, state or federal, and
Seller is not in material violation and has not received any notice of any
alleged material violation of any such law, rule or regulation. Other than as
disclosed in writing to Buyer, Seller has not shipped any hazardous substances
for treatment, storage or disposal at any other site or facility, except in
accordance with applicable state and federal laws and regulations. There are no
above ground or underground tanks located under, in or about the Real Property.
4.16 INSURANCE. Seller has maintained and will continue to
maintain until the Closing Date adequate insurance with respect to the Business,
including insurance on the Assets, whether owned or leased, against loss or
damage by fire or other casualty, in amounts equal to or in excess of one
hundred percent (100%) of the replacement value thereof, as well as
environmental impairment liability insurance for the Business.
4.17 EMPLOYEES AND RELATED MATTERS. Seller is in compliance
with all federal, state and local laws and regulations respecting labor and
employment practices, terms and conditions of employment, occupational safety
and health, and wages and hours and is not engaged in any unfair labor
practices. There is not now, nor has there been within the preceding three (3)
years any employment contracts with employees of Seller not terminable at will.
Seller is not a party to any collective bargaining agreements with any labor
union or association. Seller has not experienced any work stoppage or other
labor difficulty. Neither Seller nor any affiliate of Seller maintains or has at
any time maintained a defined benefit pension plan. Neither Seller nor any
affiliate of Seller is required to contribute to a multiemployer pension plan.
All wages, compensation and benefits to employees of Seller that are due at the
Closing Date have been or will be paid by Seller, and are as set forth on
Schedule 4.17 hereof which lists all of the current employees of Seller for both
the Roseville Business and the Union Grove Business, with the corresponding
wages and other compensation. Seller is not a party to any "employee benefit
plan" as defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"). Seller's employees are not entitled to receive
any other benefits, including, without limitation, any bonus, incentive,
deferred compensation, pension, profit sharing, vacation, sick pay, severance
pay or other plan, program, arrangement or agreement (whether written or oral)
or any medical, dental, life or disability insurance benefits (the "Employee
Plans").
4.18 RELATIONSHIPS. Seller's relationships with its agents,
brokers, dealers, distributors, representatives, customers and suppliers are
continuing and satisfactory, and, to the best of Seller's knowledge, neither the
performance of this Agreement nor the existence of any other matters or
conditions will have an adverse effect thereon, including without limitation the
▇▇▇▇▇▇ Case or any other litigation initiated by ▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"). Seller
has terminated any and all agreements with ▇▇▇▇▇▇ and Seller represents and
warrants that ▇▇▇▇▇▇ does not have any rights, interests or claims in any of the
Assets or the Business, and ▇▇▇▇▇▇ does not currently represent the Seller in
any manner. All sales of merchandise and performances of services by Seller in
connection with the Business are in compliance with all of Seller's
representations, warranties and agreements, express or implied, with respect to
such sales and performances. Seller has no knowledge or information concerning
any material loss or potential loss of business to or from one or more of its
customers or suppliers.
4.19 ABSENCE OF SUBSEQUENT EVENTS AND CHANGES. Since January
1, 1995, Seller has operated the Business in the ordinary course and has not:
(i) incurred any adverse change in its conditions (financial or otherwise),
results of operations, properties, business or prospects, except changes in the
ordinary and normal course of business which, in the aggregate, have not been
materially adverse; (ii) incurred any damage, destruction or loss, whether
covered by insurance or not, adversely affecting the Assets or Business; (iii)
entered into any written or oral agreement, contract, commitment, lease or
release, other than in the ordinary and normal course of business and consistent
with past practices; (iv) sold, licensed, leased or otherwise disposed of any of
the Assets other than in the ordinary and normal course of business consistent
with past practices; (v) received any notice of uninsurability with respect to
any of the Assets; (vi) received any assessment with respect to the Business or
Assets; (vii) changed any accounting methods or elections; or (viii) entered
into an agreement to do any of the foregoing.
4.20 USE AND OPERATION OF PROPERTY. Seller does not know of
facts nor has Seller failed to disclose to Buyer any fact that would prevent
Buyer from using and operating the facility at which Seller conducts the
Business after Closing in the manner in which the facility has been used, leased
or operated prior to the date hereof. Seller has a valid leasehold interest in
all of the real property and personal property, tangible and intangible, leased
by it, free and clear of any liens, encumbrances or other third party rights.
Seller enjoys undisturbed quiet possession of the facility. No claim has been
asserted, nor is there any right of claim against Seller, materially adverse to
the rights of Seller in such facility, except in connection with the ▇▇▇▇▇▇
Case. No material construction, alteration or other leasehold improvement work
with respect to any leasehold interest remains to be paid for or performed by
Seller.
4.21 PERFORMANCE OF EQUIPMENT. As of the Closing Date, the
Lamp Processing Equipment in Roseville, MN and the retorting/distilling
equipment in Union Grove, WI ("Retorting Equipment") (collectively, the
"Equipment") used in connection with the Business, operate in compliance with
and meet any and all federal, state or local environmental laws, regulations or
ordinances, as well as the terms of the Compliance Agreement described in
Section 10(i)(2) hereof, and the Legitimate Recovery and Reclamation Recycling
Exemption for Operation of a Mercury Waste Retort Furnace with the WDNR. The
data and test results attached hereto as Schedule 4.21, reflect all of the tests
conducted on the Equipment during 1995, and are true, complete and accurate in
all material respects.
4.22 REPRESENTATIONS OF SHAREHOLDER. ▇▇▇▇ ▇▇▇▇▇▇
("Shareholder"), as the sole shareholder of Seller, represents and warrants to
the Buyer that the foregoing representations and warranties of the Seller are
true and correct as of the Closing Date.
4.23 REPRESENTATIONS COMPLETE. No representations or
warranties of Seller and Shareholder in this Agreement, the Exhibits and
Schedules hereto, or any written statements, certificates, agreements or other
documents or instruments furnished or to be furnished to Buyer in connection
with the transactions contemplated hereby, contain or will contain any untrue
statements of a material fact, or omit or will omit to state a material fact
necessary to make the statements contained therein not misleading.
SECTION 5. REPRESENTATIONS OF BUYER. Buyer represents and warrants
that:
5.1 ORGANIZATION. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Minnesota
and has all requisite corpo rate power to execute, deliver and fully perform its
obligations under this Agreement and the transactions contemplated hereby.
5.2 AUTHORIZATION. This Agreement has been duly executed and
delivered by Buyer and has been duly and effectively authorized by the board of
directors of Buyer. No further corporate authorization or other authorization,
consent or approval by any governmental authority or by any other person is
necessary in respect of the execution, delivery and performance of this
Agreement by Buyer.
5.3 NO BAR TO TRANSACTION. This Agreement and all agreements
contemplated hereunder are valid, binding and enforceable in accordance with
their terms, subject to limitations that may result from bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to creditor's rights and
limitations on the remedy of specific performance and other forms of equitable
relief. There are no actions, suits, proceedings or investigations pending or,
to the best of Buyer's knowledge, threatened against or affecting Buyer, its
business or assets, and Buyer is not now a party to any pending legal action,
nor is Buyer a party to or subject to or bound by any agreement, judgment,
order, writ, injunction or decree of any court or governmental agency or
instrumentality, any of which contains any provision which would or could
operate to prevent the performance of this Agreement or any of the transactions
contemplated by this Agreement.
SECTION 6. ACCOUNTS RECEIVABLE. Seller and Shareholder represent and
guaranty to Buyer that all of the Seller's accounts receivable, including
without limitation, trade, non-trade and factored accounts receivable
(collectively referred to as the "Accounts Receivable") existing as of the
Closing have arisen from bona fide transactions by Seller, and are valid and
collectible at their face amounts. Accounts Receivable and any previously
collected accounts receivable are not subject to returns or allowances. Buyer
shall use commercially reasonable efforts to collect all Accounts Receivable
during the sixty (60) days after Closing; provided, however, Buyer shall not be
required to retain a collection agency or initiate legal proceedings for this
purpose. All payments received from trade creditors relating to their Accounts
Receivable shall be applied first to the applicable invoice to such account
debtor which is equal to the amount of such payment or which is specified by
such creditor, and, if none, to the oldest undisputed account. Within a
reasonable time following the sixty (60) day collection period following the
Closing, Buyer shall deliver to Seller a schedule of Accounts Receivable which
are uncollected, which shall list each Account Receivable of Seller existing at
Closing which has not been collected in full as of the date of such schedule and
which Buyer desires not to retain (the "Uncollected Accounts"). Seller and
Shareholder agree to repurchase, without recourse, by means of a setoff against
the Note, all of the Uncollected Accounts. On the date that the Buyer delivers
to Seller the schedule of uncollected Accounts Receivable (the "Delivery Date"),
the principal amount outstanding on the Note shall be reduced by the amount of
the Uncollected Accounts, plus the amount of interest that has accrued on the
portion of the principal amount of the Note equal to the Uncollected Accounts
from the Closing through the Delivery Date. Upon Seller's repurchase as provided
herein, Buyer shall unconditionally transfer all of its right, title and
interest in the Uncollected Accounts to Seller, without recourse.
SECTION 7. COVENANTS OF SELLER. Seller covenants that:
7.1 COVENANT NOT TO COMPETE.
(a) For a period of five (5) years from and after the Closing
Date, the Seller and Shareholder will not as an owner,
partner, shareholder, agent, representative, consultant,
director or in conjunction with others, engage in the lamp
recycling/processing or mercury distilling industry, either
directly or indirectly in any trade area serviced by Buyer
with respect to the Business, without the prior written
consent of Buyer; provided that an investment by Seller or
Shareholder of five percent (5%) or less of the outstanding
capital stock of any publicly traded entity, shall not be a
violation of this Section 7.1.
(b) The Seller and Shareholder will not alone or in
conjunction with others, for a period of five (5) years from
the Closing Date, solicit any customer of Buyer or any
affiliate thereof (the "Affiliates") if the purpose of any
such solicitation is to direct or recommend the doing of
business with any member of the lamp recycling/processing or
mercury distilling industry (including, but not limited to,
the types of businesses identified in Section 7.1, above).
Further, all information concerning customers of Buyer or the
Affiliates in the possession of the Seller or Shareholder
shall be kept as confidential and neither Seller or
Shareholder shall take, keep or retain any copies of the
names, addresses or any other information concerning such
customers nor will any such information be disclosed to any
person other than a person affiliated with the Seller or
pursuant to lawful legal process.
(c) For a period of five (5) years following the Closing Date,
neither Shareholder or Seller, nor an affiliate of either
shall, directly or indirectly, through an existing or to be
existing corporation, unincorporated business, affiliated
party, successor employer or otherwise (except in conjunction
with Seller), solicit or hire for employment any employee of
the Seller or any of its affiliates; provided, however, that
during such five (5) year period, a former employee of the
Seller or its affiliates may be solicited or hired by Seller,
Shareholder or an affiliate if such former employee has not
been an employee of the Buyer or its affiliates for more than
six (6) months immediately prior to the date of solicitation
or hire.
(d) Seller and Shareholder shall not, directly or indirectly,
through an existing or to be existing corporation,
unincorporated business, affiliated party or otherwise,
divulge, communicate, use to the detriment of Buyer or for the
benefit of any other person, or misuse in any way, any
confidential information or trade secrets of Seller or Buyer
concerning the Business.
(e) Notwithstanding the foregoing, Buyer agrees that if Buyer
reconveys to Seller the distribution rights to sell the Model
2000 Equipment, Seller and Shareholder shall not be subject to
the noncompete provisions of this Section 7.1 solely with
respect to sales of such Model 2000 Equipment. In addition,
the provisions of this Section 7.1 shall become null and void,
and Seller and Shareholder shall have no further obligation to
Buyer under this Section 7.1 upon the occurrence of any of the
following events:
(1) the failure of Buyer to pay when due (to the
extent not subject to offset) sums owing to Seller
under the terms of the Note, or under the terms of
the Distribution Rights ▇▇▇▇ of Sale Agreement and
the Distribution Note(s) issued pursuant to the
Distribution Rights Agreement; or
(2) the Board of Directors of Buyer has determined
that it is in the best interests of the Buyer to
request an advance under the terms of that certain
Revolving Credit Promissory Note dated as of January
4, 1996 in the face principal amount of $2,000,000
made payable by Buyer to the order of ▇▇▇▇ ▇▇▇▇▇▇▇,
or his assigns ("▇▇▇▇▇▇▇"), as amended from time to
time (the "Revolving Note") to fund working capital
and expansion needs of Buyer prior to the
Determination (as defined in the Revolving Note), and
▇▇▇▇▇▇▇ arbitrarily and unreasonably refuses to make
the requested advance to Buyer, and no Event of
Default (as defined in the Revolving Note) is
existing at the time of the requested advance.
(f) Seller and Shareholder acknowledge that the restrictions
contained in this Section 7.1 are reasonable and necessary to
protect the investment of Buyer and the Business purchased by
Buyer from the Seller, and that any violation of the
restrictions contained herein will cause substantial and
irreparable injury to the Buyer and, therefore, Seller and
Shareholder agree that Buyer shall be entitled, in addition to
any other remedies it may have available, to preliminary and
permanent injunctive relief to prevent a breach, contemplated
breach or continuation of a breach of Section 7.1 of this
Agreement. Section 7.1 of this Agreement shall be construed as
an independent covenant and the existence of any claim or
cause of action against Buyer or the Seller, whether
predicated upon this Agreement or otherwise, shall not
constitute a defense to the enforcement hereof by Buyer of the
terms and provisions hereof.
SECTION 8. INDEMNIFICATION.
8.1 INDEMNIFICATION BY SELLER. Seller and Shareholder covenant
and agree to indemnify and hold harmless Buyer, at all times after the date of
this Agreement, against any and all damages, losses, costs or expenses,
including, without limitation, reasonable attorneys' fees and the costs and
expenses of investigation, to the extent not reimbursed by insurance
(collectively referred to as "Damages"), to the extent such Damages are or were
suffered or incurred and which relate to: (i) Seller's or Shareholder's breach
of its repre sentations or warranties contained herein or any document delivered
in connection herewith; (ii) Seller's or Shareholder's failure to perform any of
its covenants or agreements contained herein or any document delivered in
connection herewith; (iii) any claims against Buyer relating to the Business
which are Excluded Liabilities; (iv) any claims against Buyer relating to any
business conducted by the Seller or Shareholder, including without limitation
any claims asserted by ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, RTI, or otherwise arising
from the Union Grove Business, whether or not in connection with the operation
of the business under the name "U.S. Technology, Inc." ("▇▇▇▇▇▇ Claims"); (v)
any claims against Buyer based upon Seller's conduct of the Business on or prior
to the Closing Date, including any product liability or other claim relating to
any products sold by Seller on or prior to the Closing Date; (vi) any claims
against Buyer from ▇▇▇▇▇▇, including without limitation, in connection with the
▇▇▇▇▇▇ case described on Schedule 4.9 hereof; and (vii) any claim relating to
any environmental matters or a violation of any environmental law relating to
the Real Property or the Business, regardless of whether such claims were caused
by or were the responsibility of the Seller, including without limitation
arising from the transportation or storage of barrels of mercury or other
hazardous substances.
8.2 MAXIMUM INDEMNIFICATION BY SELLER. The Seller's and
Shareholder's obligation to indemnify the Buyer under this Agreement shall be
limited to (i) $200,000 (exclusive of interest thereon) for any and all Damages
arising out of or connected to the Roseville Business, and (ii) $200,000
(exclusive of interest thereon) for any and all Damages arising out of or
connected to the Union Grove Business; provided, however, that the foregoing
limits shall not apply to Damages arising out of the fraudulent or willful
conduct of Seller or Shareholder. Any claim for indemnification brought by Buyer
against Seller or Shareholder must be commenced within two (2) years of the
Closing Date; provided, however, that claims based upon fraud or willful
misconduct may be brought until the expiration of all applicable statutes of
limitation. Notwithstanding anything to the contrary, Seller shall only be
obligated to indemnify Buyer for attorneys fees and expenses incurred by Buyer
in connection with any ▇▇▇▇▇▇ Claims asserted against Buyer to the extent such
fees and expenses exceed $75,000, provided, however, that this shall not be
construed in any way to require Buyer to expend funds for defense of ▇▇▇▇▇▇
Claims asserted against Seller.
8.3 DAMAGES - PAYMENT AND INTEREST BEARING. Any Damages with
respect to which either Buyer or Seller is entitled to indemnification pursuant
to this Agreement shall be paid within thirty (30) days after determination and
shall include and bear interest until paid in full at the rate of ten percent
(10%) per annum from the original date of the event or the breach of warranty,
representation or covenant which caused the Damages.
8.4 OFFSET AGAINST NOTE. Seller acknowledges and agrees that
Buyer may offset any Damages with respect to which Buyer is entitled to
indemnification, against amounts owing by Buyer to Seller under the Note and
those certain Distribution Note(s) issued pursuant to the Distribution Rights
▇▇▇▇ of Sale Agreement ("Distribution Note(s)"), and Seller hereby authorizes
Buyer to offset the Damages against the sums owing on the Note and/or the
Distribution Note(s), in such order and manner as Buyer determines in its sole
discretion.
8.5 INDEMNIFICATION BY BUYER. Buyer covenants and agrees to
indemnify and hold harmless Seller at all times after the date of the Agreement
against any and all Damages to the extent that such Damages are or were suffered
or incurred and which relate to: (i) Buyer's breach of its representations or
warranties contained herein; (ii) Buyer's failure to perform any of its
covenants or agreements contained herein; and (iii) any claims against Seller
based upon Buyer's conduct of the Business after the Closing Date, including any
product liability or other claim relating to any products sold by Buyer after
the Closing Date (to the extent such product liability does not arise from a
product developed by Seller or Shareholder).
8.6 SURVIVAL. All representations, warranties and covenants
contained in this Agreement or the Exhibits or Schedules hereto, or any
certificate or other instrument delivered by or on behalf of either party in
connection with this Agreement, shall be deemed to be representations,
warranties or covenants of the party making the same and shall survive the
Closing.
8.7 NOTIFICATION OF INDEMNIFICATION CLAIM. Buyer shall give
the Seller and Shareholder written notice of any claim for indemnification
pursuant to this Article 8 within 30 days after Buyer receives notice, or
becomes aware of, an event giving rise to such claim for indemnification. Buyer
shall also give the Seller and Shareholder copies of all information and
documents relating to any third party claim that are received by Buyer within 20
days after Buyer's receipt thereof. Buyer shall allow the Seller and Shareholder
the right to select counsel for any third party claim, which counsel shall be
reasonably satisfactory to Buyer, to defend any such action, proceeding, claim,
demand or assessment giving rise to claim for indemnification pursuant to this
Article 8, all at the sole cost and expense of the Seller and Shareholder;
provided, however, that Buyer shall be allowed, at its expense, to participate
in such defense; provided, further, that no settlement shall be entered into
without the approval of Buyer; provided, further, that in the event the Seller
offers to settle a claim on terms acceptable to the third party claimant, which
settlement Buyer does not consent to, Buyer shall be responsible for all losses
with respect to such claim which exceed the proposed settlement amount,
including all legal expenses and costs incurred after the date the Seller and
Shareholder initially gave notice to Buyer seeking its consent to the proposed
settlement. Should the Seller and Shareholder refuse to accept the tender, it
shall be Buyer's obligation to reasonably inform the Seller and Shareholder of
the status and progress of any ensuing litigation provided such information is
requested by the Seller and Shareholder. Buyer will make a good faith attempt to
mitigate the loss with respect to which such indemnification claim is made, if
such indemnification claim is based upon any claim, demand, suit or action by
any third party (a "Third Party Claim") the tender of which is denied by the
Seller and Shareholder. Buyer shall make a good faith effort to defend against
such Third Party Claim as if no indemnification was available hereunder. The
Seller and Shareholder shall cooperate with Buyer in the defense of any Third
Party Claim. Buyer shall provide the opportunity to participate in (but not
control) the defense of such Third Party Claim at Seller's and Shareholder's
expense in the event the Seller and Shareholder refuse to accept the tender and
Seller and Shareholder shall allow Buyer to participate in (but not control) the
defense of such Third Party Claim at its own expense in the event Seller and
Shareholder accept the tender.
SECTION 9. ADDITIONAL AGREEMENTS OF THE PARTIES.
9.1 ACCESS TO INFORMATION. Seller agrees to make available to
Buyer, its attorneys, accountants and professional advisors, all financial and
other data, all books and records and all appropriate employees, consultants and
advisors, and will provide such assistance as reasonably requested by Buyer to
permit Buyer to conduct its investigation of the Business. Seller also agrees to
provide Buyer with reasonable access to its material customers and suppliers
during Buyer's due diligence investigation. Buyer and its agents and
representatives shall treat all information obtained in such investigation as
confidential, and shall not disclose such information unless required by law, or
unless such information has otherwise become publicly available.
9.2 CONDUCT OF BUSINESS UNTIL CLOSING DATE. From and after the
date hereof until the Closing Date, Seller shall:
(a) operate the Business only in the usual, regular and
ordinary manner and, to the extent consistent with such operation, to (i)
preserve the present business organization intact; (ii) use its best efforts to
keep available the services of Seller's present significant employees; and (iii)
use its best efforts to preserve Seller's present business relationships with
customers, suppliers and others having business dealings with Seller;
(b) maintain all properties necessary for the conduct of the
Business in substantially the same condition as they now are (reasonable wear
and tear excepted);
(c) maintain its books, records and accounts in the usual,
regular and ordinary manner on a basis consistent with prior periods;
(d) duly comply with all laws and regulations known to be
applicable to it and to the conduct of the Business;
(e) not make capital expenditures in excess of $1,000 without
Buyer's approval upon due consultation;
(f) not order any new inventory without Buyer's approval upon
due consultation; and
(g) perform all of its material obligations without default.
9.3 RISK OF LOSS. The risk of damage to the Assets by fire or
any act of God shall remain with Seller until the delivery of the ▇▇▇▇ of Sale,
or other applicable instruments of conveyance, if any.
9.4 BROKER'S FEES. Seller and Buyer warrant and represent to
each other that all negotiations relevant to this Agreement and the transactions
contemplated hereby have been carried on by Seller with Buyer and that there are
no brokerage or finders' fees or commissions payable to any parties as a result
of this Agreement.
9.5 FURTHER ASSURANCES. Subject to the terms and conditions
herein provided, the parties hereto shall take or cause to be taken any and all
actions and do or cause to be done any and all things necessary, proper or
advisable under applicable laws to consummate and make effective, as soon as
reasonably practicable, the transactions contemplated hereby, including, but not
limited to, the obtaining of all consents, authorizations, orders and approvals
of any third person and the making of all filings and the giving of all notices.
9.6 EXPENSES. Each party shall be responsible and liable for
all expenses which it has incurred with regard to the transactions governed by
this Agreement, including all attorney's and accountant's fees.
9.7 TAXES AND EXPENSES. All expenses related to the operation
of the Business, including, without limitation, all employee compensation, all
federal and state payroll and other taxes, and all utility and other charges
incurred by Seller up to and including the Closing Date, shall be the
responsibility of and shall be paid in full by Seller when due, but no later
than thirty (30) days after Closing, except that any payroll or income taxes
shall be paid at the time required by law.
9.8 PAYMENT OF TRANSFER FEES AND TAXES. Seller shall pay any
transfer tax, sales and use tax or other fee or charge imposed by any
governmental agency for the purchase, assumption, assignment or transfer arising
from or in connection with the purchase of the Assets or the assumption of the
Assumed Liabilities.
SECTION 10. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS. All of the
agreements and obligations of Buyer under this Agreement are subject to the
fulfillment, on or prior to the Closing Date, of the following conditions
precedent:
(a) Buyer shall have entered into an assumption of the
Seller's lease agreement with St. ▇▇▇▇ Properties, Inc. (the
"Landlord"), acceptable to Buyer in its sole discretion, for
the lease of the facility at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇-▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, or a sublease of Seller's rights under
the Seller's lease agreement, either of which shall be with
the written consent of the Landlord.
(b) Buyer shall have entered into an acceptable assumption or
sublease of the lease agreement for the Union Grove facility
with the written consent of ▇▇▇▇▇▇ Properties (the "Wisconsin
Landlord").
(c) Buyer shall have entered into an acceptable assumption or
sublease of the lease agreement for the Roseville office at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ 36, with the written consent of the
landlord.
(d) The representations and warranties of Seller and
Shareholder contained in this Agreement shall be true and
correct at the time of Closing in all respects as though such
representations and warranties were made at and as of the
Closing.
(e) There shall not have occurred any material adverse change
in the condition, financial or otherwise, of Seller, the
Business or the Assets.
(f) Other than the ▇▇▇▇▇▇ case, no action, proceeding or
investigation shall be pending or threatened by any person,
entity or governmental body or agency to restrain or prohibit
the purchase and sale of the Assets hereunder or restrain or
prohibit Buyer from carrying on the Business as it is
currently being conducted on the date hereof.
(g) Buyer shall be satisfied in its sole discretion with its
due diligence review of the Business and the Assets.
(h) Seller shall have delivered to Buyer corporate resolutions
authorizing this transaction, and an opinion of Seller's
counsel in form and substance acceptable to Buyer and its
counsel.
(i) Seller shall have delivered to Buyer at or prior to
Closing the following:
(1) Evidence satisfactory to the Buyer that the MPCA
and WDNR authority permitting the Seller's operation of the
Roseville Business and the Union Grove Business respectively
is in full force and effect.
(2) A Compliance Agreement between the MPCA and Buyer
(which does not require execution by Shareholder) in final
form for execution at Closing, together with the Storage
Agreement required under the terms of the Compliance
Agreement, and evidence that Seller has completed the
processing and disposal of the mercury barrels pursuant to the
Compliance Agreement and is otherwise in compliance with the
terms of the Compliance Agreement.
(3) Such other documents as may be requested by Buyer
relating to the Business.
(j) Satisfaction of any outstanding environmental issues in a
manner acceptable to Buyer.
(k) At the Closing, those creditors of Seller listed on
Schedule 10(k) hereof, secured and unsecured, shall be paid in
full the amount owed to them, whether or not the full amount
owing is at the time of the Closing, and each such creditor
shall have executed a UCC-3 termination financing statement if
applicable.
(l) Buyer and Shareholder shall have entered into an
employment agreement in form and substance acceptable to
Buyer.
(m) There shall not have been a materially adverse development
relating to the Union Grove Business and ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and RTI, other than as expressly disclosed in
writing to Buyer.
(n) Confirmation of payment of any amounts due and payable by
Seller to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
(o) Seller shall have executed and delivered to Buyer the
Distribution Rights ▇▇▇▇ of Sale Agreement.
(p) Seller shall cause all insurance policies covering the
Business to list Buyer as an additional insured for a period
of 45 days after Closing.
(q) Deliver to Buyer a certified check payable to Bankers
American Capital Corporation ("BACC") in the amount of $50,000
in return of the ▇▇▇▇▇▇▇ money previously deposited with
Seller (the "▇▇▇▇▇▇▇ Money"), and the sum of $1,800 in
reimbursement of costs and expenses advanced by BACC to
Seller.
SECTION 11. TERMINATION. This Agreement may be terminated at any time
on or prior to the Closing Date:
(a) By written notice of Buyer if there shall have been a
breach of any of Seller's or Shareholder's representations,
warranties, covenants or agreements contained in this
Agreement.
(b) By written notice of Buyer if Buyer is unable to enter
into an acceptable sublease agreement, or acceptable
assumption agreement with respect to either the Roseville or
Union Grove facilities.
(c) By written notice of Buyer if any of the conditions of
closing set forth in Section 10 are not met as of the Closing
Date.
(d) By written notice of Buyer or Seller if the Closing shall
not have occurred on or before February 1, 1996 for any reason
other than the breach of this Agreement by the party tendering
notice of termination.
(e) By written notice of Seller if there shall have been a
breach of any of Buyer's representations, warranties,
covenants or agreements contained in this Agreement.
Upon termination of this Agreement pursuant to subsections (a) through (e)
above, none of the parties shall have any further liability or obligation to the
other parties, and Seller shall return to Buyer the ▇▇▇▇▇▇▇ Money.
SECTION 12. MISCELLANEOUS PROVISIONS.
12.1 CHANGES; WAIVERS. Neither this Agreement nor any
provision hereof may be changed, amended, waived, discharged or terminated
orally, but only by a statement in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought.
12.2 NOTICES. All notices, requests, consents and other
communications required or permitted hereunder shall be in writing and shall be
delivered, or mailed first-class postage prepaid, registered or certified mail
or by facsimile:
If to Seller: U.S. ENVIRONMENTAL INCORPORATED
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer: MERCURY WASTE SOLUTIONS, INC.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as Seller or Buyer may specify by written notice to the
other and such notices and other communications shall for all purposes of this
Agreement be treated as being effective or having been given when delivered
personally, or, if sent by mail, when deposited in the United States mail,
certified mail, postage prepaid, return receipt requested, or if by facsimile,
on the date of transmission.
12.3 SEVERABILITY. If any term, provision, covenant or
agreement contained in this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and agreements of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated. It is
hereby stipulated and declared to be the intention of the parties hereto that
they would have executed the remaining terms, provisions, covenants and
agreements without including any of such which may hereafter be declared
invalid, void or unenforceable.
12.4 PARTIES IN INTEREST. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties and their respective heirs, successors and permitted assigns.
12.5 COMPLETE AGREEMENT. This Agreement, Exhibits and
Schedules attached hereto, and the agreements referenced herein, contain the
entire agreement between the parties hereto with respect to the sale and
purchase of the Assets, the warranties and representations of the parties and
the other transactions contemplated hereby. These agreements supersede all prior
agreements between the parties with respect to such matters, whether written or
oral.
12.6 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute but one agreement.
12.7 BENEFIT. Nothing in this Agreement, expressed or implied,
is intended to confer on any person other than the parties to this Agreement or
their permitted successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
12.8 ASSIGNMENT. Neither this Agreement, nor the rights and
obligations of the parties hereto, may be assigned by any of the parties hereto,
except that Seller may assign its right to receive payments hereunder to any
person or entity and Buyer may assign its rights and obligations hereunder to
any affiliate of Buyer.
12.9 REMEDIES. Except as otherwise specifically provided, no
remedy conferred in this Agreement is intended to be exclusive and each shall be
cumulative and shall be in addition to every other remedy, and the election of
any one or more remedies shall not constitute a waiver of any other remedy.
12.10 GOVERNING LAW/VENUE. This Agreement shall be governed by
the internal laws of the State of Minnesota. The parties hereto hereby consent
to the personal jurisdiction of the state and federal courts located in the
State of Minnesota in connection with any controversy related to this Agreement,
or any of the documents delivered in connection herewith, waive any argument
that venue in such forums is not convenient and agree that any litigation
instigated by either party shall be venued in either the District Court of
Hennepin County, Minnesota or the United States District Court for the District
of Minnesota, Fourth Division.
IN WITNESS WHEREOF, the parties hereto have executed the Asset Purchase
Agreement on the day and year first above written.
MERCURY WASTE SOLUTIONS, INC.
By ___________________________________
▇▇▇▇ ▇▇▇▇▇▇▇, Chairman
"Buyer"
U.S. ENVIRONMENTAL, INCORPORATED
By ___________________________________
▇▇▇▇ ▇▇▇▇▇▇, President
"Seller"
Acknowledgement of the Shareholder
The undersigned, the sole shareholder of U.S. Environmental, Inc., is
signing this Agreement for the sole purpose of acknowledging and agreeing to be
bound by the terms and provisions of Sections 4.22, 6, 7.1, 8.1 and 12.9 of this
Agreement, which provisions the undersigned agrees shall be binding upon him and
shall inure to the benefit of Buyer.
___________________________________
▇▇▇▇ ▇▇▇▇▇▇
Exhibit
-------
A-1 List of Accounts Receivable/List of Certain Assets
A-2 List of Contracts/Leases Assumed
▇-▇ ▇▇▇▇▇ ▇▇▇▇▇ Costs/Estimates
B Promissory Note
C Allocation of Purchase Price
D-1 ▇▇▇▇ of Sale
D-2 Distribution Rights ▇▇▇▇ of Sale Agreement
Schedule
--------
4.9 Litigation
4.10 Contracts
4.15 Environmental Compliance/Violations
4.17 Employees
4.21 Environmental Data and Test Results
10.1(k) Creditors
The Company will provide copies of omitted schedules and attachments upon
request.
