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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
March 10, 2000
EARTHCARE COMPANY
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
Delaware 000-24685 58-2335973
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(State or other jurisdiction of (Commission File Number) (IRS Employer
incorporation) Identification No.)
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14901 Quorum Drive, Suite 200, Dallas, Texas 75240
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(Address of principal executive offices) (Zip Code)
(972) 858-6025
(Registrant's telephone number, including area code)
Not applicable
(Former name or former address, if changed since last report)
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Item 2. Acquisition or Disposition of Assets
On March 10, 2000, EarthCare Company (the "Company") acquired all of the
outstanding stock of All County Resources Management Corporation ("All County"),
a New Jersey corporation pursuant to a Stock Purchase Agreement, dated March 10,
2000.
EarthCare paid $12.4 million for All County in a combination of cash and
shares of common stock, $.0001 par value, of EarthCare. EarthCare funded the
$7.8 million cash portion of the purchase price with borrowings under the
Company's revolving credit facility with Bank of America, N.A. and BankBoston,
N.A. and the proceeds from the sale of its 12% subordinated notes due February
28, 2008. In addition, the Company issued 598,686 shares of common stock with a
value equal to $4.6 million to All County. The shares are subject to a lock-up
agreement that extends for three years from the closing date.
All County provides collection, transportation, treatment and disposal services
to nonhazardous liquid waste customers in Connecticut, Pennsylvania, New Jersey
and New York. EarthCare currently intends to operate All County in
substantially the same manner as it was operated prior to this transaction.
Item 7. Financial Statements and Exhibits
(a) Financial Statements of Business Acquired.
None required.
(b) Pro Forma Financial Information.
None required.
(c) Exhibits
2.1 Stock Purchase Agreement, by and between EarthCare Company and
All County Resource Management Corporation.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
EARTHCARE COMPANY
(Registrant)
Date: March 24, 2000 By: /s/ Harry Habets
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Harry Habets
President and Chief Operating Officer
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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2.1 Stock Purchase Agreement, by and between EarthCare
Company and All County Resource Management
Corporation.
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EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into by and between Frank G. Coppola and John
Coppola, individuals having an office for the transaction of business at 99
Maple Grange Road, Vernon, New Jersey 07462, (hereinafter sometimes collectively
referred to as "Seller"), and EarthCare Company, a Delaware Corporation
(hereinafter referred to as "EarthCare" or "Buyer").
WITNESSETH:
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WHEREAS, the Seller is the owner of Two Hundred (200) shares of common stock
with no par value of All County Resource Management Corp., a New Jersey
corporation, (said corporation is hereinafter sometimes referred to as the
"Company) (said shares of All County Resource Management Corp. common stock are
hereinafter sometimes collectively referred to as the "AACRM Common Stock"); and
WHEREAS, the ACRM Common Stock constitutes all of the issued and outstanding
shares of the Company; and
WHEREAS, the parties hereto desire that the Buyer acquire the ACRM Common Stock
in exchange for cash and shares of the common stock, $.0001 par value of the
Buyer (said shares of common stock are hereafter sometimes referred to as the
"EarthCare Common Stock)
NOW THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained in this Agreement, and for other
good and valuable consideration the mutual receipt and sufficiency of which is
hereby acknowledged by the parties hereto, THE PARTIES HERETO AGREE AS FOLLOWS:
1. PURCHASE AND SALE OF STOCK.
--------------------------
1.1 Upon the basis of the representations and warranties contained herein and
subject to the terms and conditions of this Agreement, at the time of Closing
(as hereinafter defined) Seller shall sell, convey, transfer, assign and deliver
to Buyer, and Buyer shall purchase from Seller, 160 shares of the ACRM Common
Stock.
1.2 At the time of Closing, as the purchase price for 160 shares of ACRM Common
Stock, and in exchange therefor, Buyer shall pay to Seller $7,750,000 cash and
such additional amount as determined by agreement of the parties for Company's
inventory ("Inventory Adjustment").
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1.3 The Buyer shall further pay to Seller additional consideration consisting
of unregistered EarthCare Common Stock equal in value to $4,610,000, as
determined below ("Stock Consideration") which will be held in an agreed escrow
account and deliverable as follows:
1.3(a) On the first anniversary date of the Closing Seller shall be
delivered 50% of the Stock Consideration, provided that the Company
generates earnings before interest, taxes, depreciation and
amortization (EBITDA) in the amount of $1,600,000 for the 12 month
period subsequent to the Closing.
1.3(b) On the second anniversary of the Closing, Seller shall be delivered
the remaining Stock Consideration if the Company generates EBITDA
in the amount of $1,900,000, for the second 12 month period
subsequent to closing.
1.3(c) Seller shall receive all of the Stock Consideration on the third
anniversary of the closing, notwithstanding the failure to meet the
EBITDA requirements.
1.3(d) The amount of Stock Consideration may be subject to reduction in
accordance with Paragraph 6.4.
1.3(e) For purposes of determining the number of shares held in escrow as
the Stock Consideration, shares of EarthCare Common Stock shall be
valued at a price equal to the average closing price for such
shares on the NASDAQ National Market System as reflected by the
Wall Street Journal during the five day trading period ending two
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(2) trading days prior to Closing.
1.3(f) If the shares held in escrow are not registered under the
Securities Act of 1933 (1933 Act) Buyer agrees, upon delivery of
such shares to Seller, to include such shares in Buyer's first
registration statement filed after delivery of such shares. Buyer
further agrees to facilitate the transfer by Seller of any
unregistered shares pursuant to Rule 144 promulgated under the 1933
Act.
1.3(g) The remaining 40 shares of ACRM Common Stock shall be held in
escrow and delivered to Buyer pro rata in exchange for the
EarthCare Common Stock as released from escrow as described above.
1.3(h) Seller shall be provided with a segmented financial statement
verified by EarthCare's accounting firm concerning the EBITDA
calculation and that in the event of a material disagreement, an
independent accounting firm will be appointed to determine EBITDA,
with expenses to be paid 50% by EarthCare and 50% by Seller.
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2. CLOSING. Subject to the terms and conditions of this Agreement, the
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closing of the purchase and sale of the ACRM Common Stock (the "Closing") shall
be held as of February 28, 2000 or at such time as the New Jersey Department of
Environmental protection issues appropriate approval or negative declaration
under the Industrial Site Remediation Act, at the offices of LADDEY, CLARK &
RYAN, 60 Blue Heron Road, Sparta, New Jersey, 07871, or at such other time and
date as shall be mutually agreed upon by the parties hereto in writing. (Such
time and date is sometimes hereinafter referred to as the "Closing Date" or
"Closing".) The Closing shall be effective as of the close of business February
29, 2000.
2.1 As a condition precedent to Seller's obligation to close, if Seller
determines that the cost of compliance with any environmental requirements of
the New Jersey Department of Environmental Protection, including, without
limitation, the cost of any sampling, analysis, remediation, and professional
fees, shall exceed the sum of $200,000 or be reasonably expected to exceed that
sum as evidenced by an estimate of Seller's environmental consultants, Seller
shall have the right to cancel this agreement on notice to Buyer, in which event
neither party shall be under any further obligation to the other with the
exception that Seller shall return Buyer's deposit, if any. Alternatively,
Buyer may assume full responsibility for paying any costs associated with
complying with the environmental requirements of the New Jersey Department of
Environmental Protection at its sole cost and expense to the extent the costs
exceed $200,000
3. PROCEDURE AT THE CLOSING. The parties hereto agree to take the following
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steps in the order listed:
3.1 Seller shall deliver to the Buyer 160 shares of ACRM Common Stock, and such
bills of sale, assignments and other instruments to transfer to the Buyer good
and marketable title to the ACRM Common Stock, free and clear of all liens,
claims and encumbrances, or which will upon payment of the purchase price be
free of liens, claims and encumbrances.
3.2 In exchange for the ACRM Common Stock, Buyer shall deliver to Seller:
(1) $7,750,000 by wire transfer, and
(2) The parties shall determine the amount of the Inventory
Adjustment, which shall be paid 120 days after Closing.
3.3 The parties shall also exchange executed employment agreements and other
documents contemplated by this Agreement.
3.4 The parties shall have a preclosing prior to the wire transfer in which all
documents can be executed on the morning of the closing.
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4. REPRESENTATIONS AND WARRANTIES OF SELLER. In order to induce the Buyer to
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enter into this Agreement and to consummate the transactions contemplated
hereunder, the Seller hereby makes the following representations, warranties,
covenants and agreements:
4.1 Organization and Existence. The Company is a corporation duly organized
--------------------------
and legally existing in good standing under the laws of the State of New Jersey,
and has all requisite corporate power and authority to carry on its business as
now conducted. The Company is qualified to do business in the States of New
Jersey and New York which are the only states which by the nature of the
business of the Company and the character of the properties owned or leased by
it requires qualification to do business as a foreign corporation. Seller has
delivered to Buyer a true and correct copy of the Articles of Incorporation
(duly certified by the Secretary of State of New Jersey) and By-Laws of the
Company (certified by its Secretary).
4.2 Subsidiaries or Other Entities. Except as disclosed on Schedule 4.2,
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attached hereto, Company has no investments or ownership interests in any
corporations, partnerships, joint ventures or other business enterprises.
4.3 Capitalization. The Company is authorized to issue 1,000 shares of common
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stock, no par value, of which 200 shares are issued and outstanding at the time
of the execution of this Agreement. All of the issued and outstanding shares of
capital stock of the Company have been duly issued, are validly outstanding, are
fully paid and nonassessable, and are held of record and beneficially by Seller;
there are no outstanding subscriptions, options, warrants or rights to receive,
purchase or subscribe to, or securities convertible into or exchangeable for,
any issued or unissued shares of the capital stock of the Company. The Company
has no liability for dividends declared but unpaid. Prior to Closing, the
Seller shall not, and shall not permit the Company, to issue or enter into any
subscriptions, options, agreements or other commitments in respect of the
issuance, transfer, sale or encumbrance of any shares of the ACRM Common Stock.
4.4 Stock Ownership. Seller has, and at the time of Closing will have, good
---------------
and marketable title to the ACRM Common Stock, and there are, and at the time of
Closing will be, no impediments to the sale and transfer of the ACRM Common
Stock to Buyer. Upon delivery of the ACRM Common Stock to Buyer, the ACRM
Common Stock (i) shall constitute all of the issued and outstanding shares of
capital stock of the Company, and (ii) shall be free and clear of all security
interests, liens, charges, pledges, mortgages, encumbrances or rights of third
parties whatsoever.
4.5 Financial Condition. Seller has furnished to Buyer copies of the following
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(which are attached) financial statements of the Company, all of which are true
and complete in all material respects and have been prepared in accordance with
generally accepted accounting principles consistently applied (except to the
extent otherwise reported):
4.5(a) A Balance sheet ("Balance Sheet") of the Company as of September 30,
1999.
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4.5(b) Statements of income and retained earnings of the Company for the twelve
(12) months ended September 30, 1999. (Collectively, the Balance Sheet and
statements of income and retained earnings are hereinafter referred to as the
"Financial Statements").
The Financial Statements are complete and correct and in accordance with the
books of account and records of the Company and present fairly the financial
position of the Company's business and the income, stockholders' equity and cash
flow of the Company's business at the dates and for the periods indicated.
4.5(c) Subject to Paragraph 10, Seller warrants that current assets of the
Company will be sufficient to pay the liabilities of the Company as of the
Closing Date, and all term liabilities (except for operating leases which shall
continue to be assumed by Buyer) shall be paid by the Company by the Closing
Date or at Closing.
4.6 Assets.
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4.6(a) The Company has good and marketable title to, and is in possession of,
all of its assets, equipment, vehicles, properties and rights, including all
properties, assets, vehicles and equipment listed on Schedule 4.6(a) attached
hereto and as shown on the Balance Sheet, free and clear of all liabilities,
mortgages, liens, pledges, security interests, restrictions, conditional sales
agreements, title retention agreements, charges or encumbrances except as shown
on the Balance Sheet. Seller represents that Schedule 4.6(a) sets forth a
list of all material items of equipment, vehicles, properties, containers,
machinery, shop equipment, welders, grinders, work benches, jacks, stands,
parts, office furniture, fixtures, computer hardware/software and equipment
owned by the Company as of the date of this Agreement and used in connection
with its business operations (hereinafter sometimes referred to as the
"Operating Equipment"); such list identifies the Operating Equipment by size,
manufacturer, model number and serial number, where available. Notwithstanding
the foregoing, the inventory list may be general in nature considering the
quantities involved.
4.6(b) Except as set forth on Schedule 4.6(b), all of the Operating Equipment
is in good operating condition (normal wear and tear excepted), has been well
maintained, and is in adequate condition to service the Company's Customer
Accounts (as herein defined) and to conduct the operations of the Company as it
exists on the Closing Date. This representation is made based on the assets'
conditions as of the Closing Date and does not survive for a period of three (3)
years as provided in Section 12.3 of this Agreement.
4.6(c) There has not been any material change in the Operating Equipment, in
the aggregate, since the inspection of such Operating Equipment by Buyer on
December ____, 1999, and there shall not be any material change in the Operating
Equipment, in the aggregate, subsequent to a final inspection of the Operating
Equipment to be performed by Buyer and Seller prior to Closing.
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4.6(d) Schedule 4.6(d) shall identify all assets and property of the Company
which shall be excluded from this Agreement.
4.6(e) EarthCare shall provide a certificate on closing that it has inspected
all of the equipment and that it is in working order.
4.7 Liabilities. Except as set forth in Schedule 4.7 attached hereto or in
-----------
the Financial Statements submitted to Buyer, or in any other Exhibit delivered
pursuant hereto, neither the Company nor its assets or properties are subject to
any liabilities or obligations (accrued, absolute, contingent or otherwise),
except for liabilities incurred in the ordinary course of business affairs and
the Company is not in material default in respect of any material term or
condition of any material indebtedness or liability. The transactions
contemplated by this Agreement do not and will not subject the Company or the
Buyer to any claim or liability for any obligation, debt or contract other than
as specifically disclosed in this Agreement and the Schedules attached hereto.
All required consents of creditors, if any have been, or by closing will be,
obtained for performance of this Agreement.
4.8 Customer Accounts, Municipal Contracts and Related Matters.
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4.8(a) Customer Accounts are the commercial, industrial, municipal, and
residential accounts of the Company pursuant to which the Company provides waste
removal, collections, transportation, storage and/or disposal. Said Customer
Accounts are listed on Schedule 4.8(a) attached hereto. (Each of the Customer
Accounts listed in Schedule 4.8(a) shall identify the name and address of each
of the Customer Accounts, and shall reflect as to each the current monthly
billing amount, frequency of service and size and type of container.)
4.8(b) Schedule 4.8(b) is a true, accurate and complete listing of all written
service agreements, franchises, licenses or other contracts, if any, to which
the Company is a party and which relate to Customer Accounts. Original copies of
all such contracts shall be delivered by the Seller to the Buyer no later than
the Closing Date, and such copies shall be true, accurate and complete and shall
include all amendments, supplements or other modifications to such contracts.
Except as disclosed in Schedule 4.8(b), to the knowledge of the Seller, neither
the Company nor any other party to any of the Company's municipal contracts or
Customer Accounts is in material default or alleged to be in material default
thereunder and there exists no condition or event which, after notice or the
lapse of time or both, would constitute such a default. The sale, transfer and
assignment of the ACRM Common Stock will not result in a breach, violation or
default of any of the Company's municipal contracts or Customer Accounts, and
all of the Company's municipal contracts and Customer Accounts will remain in
full force and effect as if there had been no sale, transfer and assignment
thereof. Notwithstanding the foregoing, not all written service agreements are
provided but the
6
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larger contracts and ongoing service arrangements and the annual residential
individual contracts and other commercial accounts are too numerous to attach.
The parties agree the records concerning these accounts and contracts have been
disclosed to Buyer prior to closing.
4.8(c) Except as otherwise disclosed in Schedule 4.8(c), the Seller knows of no
oral or written communication, fact, event or action which exists or has
occurred within 90 days prior to the date of execution of this Agreement, which
expressly demonstrates that any current customers of the Company intends to
terminate its business relationship with the Company.
4.8(d) To the best of the Seller's knowledge, none of the Customer Accounts,
service agreements, franchises, licenses, or other contracts for collection and
transportation of waste, in any manner involve the collection or transportation
of waste materials classified as hazardous, toxic, chemical or radioactive under
the laws of the United States or of any state or other governmental jurisdiction
in which the Company conducts collection and transportation operations, or under
any rules or regulations promulgated by any administrative agency thereof.
Seller has not received a notification from any customer with respect to a
container that contains hazardous or toxic materials.
4.9 Material Contracts. Attached hereto as Schedule 4.9 is a list and brief
------------------
description, as of the date of this Agreement, of certain leases, contracts,
commitments, agreements and other documents to which the Company is a party or
by which it is bound and which is related to the operation of its business.
Except for contracts and documents listed in Schedule 4.9, the Company is not a
party to or bound by any written or oral (i) contracts not made in the ordinary
course of business; (ii) employment contracts, other than those terminable at
the will of the Company; (iii) contracts with any labor union or association;
(iv) bonus, pension, profit sharing, retirement, hospitalization, insurance or
other plan providing employee benefits; (v) leases with respect to any property,
real or personal, whether as lessor or lessee; (vi) continuing contracts for the
future purchase of materials, supplies or equipment in excess of the
requirements of its business now booked; (vii) contracts or commitment for
capital expenditures; (viii) contracts continuing over a period of more than six
(6) months from its date; or (ix) material contracts necessary to conduct the
operations and business of the Company. A true copy of each contract, commitment
and agreement listed on Schedule 4.9 will be furnished to Buyer prior to
Closing.
4.10 Employees - Labor Matters. The Company has generally enjoyed a good
-------------------------
employer-employee relationship with its employees. Attached hereto as Schedule
4.10 is a complete list of all employees of the Company whose duties are related
to the operation of the business of the Company. Seller warrants there exists
no pending or threatened actions by any employees alleging sex, age, race, or
other discriminatory practices, no current effort to organize these employees
into collective bargaining units, and no collective bargaining agreement is now
in effect. There are no contracts, written or oral, between the Company and any
of its employees, except as specifically disclosed in Schedule 4.10.
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4.11 Insurance. The Company maintains in effect insurance covering its
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assets and businesses and any liabilities relating thereto in an amount believed
adequate by the Seller, and such insurance coverage shall be maintained by the
Company through the Closing Date. Between the date hereof and the Closing Date,
the Seller shall cause the Company to furnish to the Buyer such information as
the Buyer shall reasonably request regarding the Company's insurance. Except as
set forth in Schedule 4.11 attached hereto, there are no pending material
property damage or personal injury claims against the Company or any of its
assets.
4.12 Licenses and Permits. The Company possesses all licenses and other
--------------------
required governmental or official approvals, permits or authorizations, if any,
the failure to possess which would have a material adverse effect on the
businesses, financial condition or results of operations of the Company
including, without limitation, all common carrier rights, certificates of public
need, waste material transportation permits, trademarks and trade names
necessary to carry on its business as now being conducted, without known
conflict with valid licenses, permits, trademarks and trade names of others. All
such licenses and permits are in full force and effect, and no violations are or
have been recorded in respect to any thereof, and no proceeding is pending, or
to the knowledge of Seller threatened, to revoke, suspend or otherwise limit
such licenses or permits. To the best of the Seller's knowledge, all licenses
and permits will survive the closing of the transactions contemplated by this
Agreement. Seller shall be removed as responsible parties on any license that
Company holds as soon as practicable after the date of Closing.
4.13 Tax Matters. The Company has timely filed all federal, state, sales
-----------
tax, franchise tax, and other tax returns which are required to be filed by it
and has paid or has made provision for the payment of all taxes which have or
may become due pursuant to said returns. All taxes, including, without
limitation, withholding and social security taxes due with respect to the
Company's employee, federal and state income tax liabilities, corporate
franchise taxes, sales, use, excise and ad valorem taxes, due, payable or
accrued by the Company on or before the Closing Date have or will be paid. Any
outstanding New York Corporation and Income Tax due will be paid or
appropriately escrowed for at closing. The Company has filed all reports
required to be filed by it with all such taxing authorities. Seller shall be
responsible for any tax liability attributable to operations of the Company
prior to Closing. Seller shall have the right to review any such claims and no
offer or compromise shall be made without their consent. If the consent is not
forthcoming, then the Seller shall have the right to prosecute or defend the tax
matter to completion at its own cost.
4.14 Litigation. To the best of Seller's knowledge, except as disclosed in
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Schedule 4.14 attached hereto, the Company has not received any notices of
material default and is not in material default of (i) any order, writ,
injunction or decree of any court, or any federal, state, municipal or other
governmental department, commission, board, bureau or instrumentality, or (ii)
any agreement or obligation to which the Company is a party or by which the
Company is bound or to which the Company or any of the property of the Company's
may be subject. Except as disclosed in Schedule
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4.14, there are no material outstanding claims, actions, suits, proceedings or
investigations pending or, to the knowledge of the Seller, threatened against
the Company or which affect the Company or any of its assets or property, at law
or in equity before or by any federal, state, municipal court or other
governmental department, authority, commission, board, bureau, agency or
instrumentality.
4.15 Compliance with Laws. To the best of Seller's knowledge, except as
--------------------
otherwise disclosed in Schedule 4.15 attached hereto, the Company is in
compliance in all material respects with all federal, state, and local laws,
ordinances, regulations, rules, and orders applicable to it or to its assets
including, without limitation, all laws and regulations relating to the
protection of the environment, the safe conduct of the Company's business, anti-
competitive practices, discrimination, employment, wage and hour practices and
health. The Company has not received notification of any asserted past or
present failure to comply with any of such laws or regulations.
4.16 Environmental Matters Except as disclosed in Schedule 4.16 attached
---------------------
hereto, there are no claims, actions, suits, proceedings or investigations
relating to any Environmental Law (as hereinafter defined) pending or threatened
against or affecting the Company. Except as set forth on Schedule 4.16 attached
hereto: (i) no release of any hazardous substance, medical waste, toxic waste or
regulated substance has occurred or is occurring as a result of the business of
the Company; (ii) no hazardous substance, medical waste, toxic waste or
regulated substance is currently present at, or has been previously generated,
stored, treated or disposed of at any landfill by the Company or through the
conduct of the business of the Company except deminimis amounts mixed with
household waste; (iii) no underground or partially underground storage tank has
been or is currently located at any facility of the Company; (iv) the business,
activities and processes heretofore conducted by the Company comply in all
material respects with all applicable Environmental Laws; (v) no facility of the
Company is listed on any list, registry or other compilation of sites that
require, or potentially require, removal, remedial action or any other response
under any Environmental Law as the result of the presence, release or potential
release of any hazardous substance, medical waste, toxic waste, or regulated
substance; (vi) neither Seller nor the Company has received any notice that the
Company is liable or responsible, or potentially liable or responsible, for any
costs of any removal, remedial action or other response under any Environmental
Law as the result of the presence, release or potential release of any hazardous
substance, medical waste, toxic waste, or regulated substance; and (vii) there
is no pending litigation or administrative proceeding (and neither Seller nor
the Company knows has reason to know of any potential or threatened litigation
or administrative proceeding) in which it is asserted that the Company has
violated or is not in compliance with any material Environmental Law.
Environmental Law means all laws, statutes or acts of the United States of
America, the States of New Jersey and New York, or any political subdivision
thereof, that relate to the condition of the air, ground or surface water, land
or other parts of the environment, to the release or potential release of any
substance or radiation into the air, ground or surface water, land or other
parts of the environment, or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or other handling of substances that
might
9
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pollute, contaminate or be hazardous or toxic if present in the air, ground or
surface water, land, or other parts of the environment. The Company has not
received any written notice to the effect that the landfills and other disposal
sites to which waste material transported by the Company has been delivered are
not properly licensed pursuant to applicable Environmental Laws to receive the
material disposed of therein.
4.17 No Brokers or Agents Fees. No agent, broker, finder, representative or
-------------------------
other person or entity acting pursuant to authority of the Seller will be
entitled to any commission or finders fee in connection with the origination,
negotiation, execution or performance of the transactions contemplated under
this Agreement.
4.18 No Material or Adverse Change. Except as otherwise disclosed in
-----------------------------
Schedule 4.18 attached hereto, since, September 30, 1999 there has not been: (i)
any material adverse change in the financial condition, assets, liabilities,
business or results of operations of the Company; (ii) to the knowledge of the
Seller, any threatened or prospective event or condition of any character
whatsoever which could materially and adversely affect the business, financial
condition or results of operations of the Company; (iii) any sale or other
disposition of any of the Company's assets other than in the ordinary course of
business; or (iv) any damage, destruction or loss (whether or not insured)
materially and adversely affecting the property, business or prospects of the
Company.
4.19 Due Authorization and Absence of Breach. This Agreement and all other
---------------------------------------
agreements of the Seller and Buyer contemplated hereunder constitute valid and
binding obligations of the Seller and Buyer, enforceable in accordance with
their respective terms. Neither the execution and delivery of this Agreement (or
any agreement contemplated hereunder) nor the consummation of the transactions
contemplated hereby will: (i) conflict with or violate any provision of the
Articles of Incorporation or By-Laws of the Company; (ii) conflict with or
violate any decree, writ, injunction or order of any court or administrative or
other governmental body which is applicable to, binding upon or enforceable
against the Company or Seller and Buyer; or (iii) except as set forth on
Schedule 4.19 result in any breach of or default (or give rise to any right of
termination, cancellation or acceleration) under any mortgage, contract,
agreement, indenture, will, trust or other instrument which is either binding
upon or enforceable against the Seller and Buyer or the Company or its assets.
4.20 Authority to Contract. Seller has the full power, right and authority
---------------------
to enter into and perform this Agreement without the consent of any person,
entity or governmental agency, and the consummation of the transactions
contemplated by this Agreement will not result in the breach or termination of
any provision of or constitute a default under any lease, indenture, mortgage,
deed of trust or other agreement or instrument or any order, decree, statute or
restriction to which Seller or the Company is a party or by which the Company is
bound or to which the outstanding shares of stock of the Company or any of the
properties of the Company is subject. Buyer acknowledges that it has had full
access to All County's banking, financial, and business information prior to
closing.
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4.21 Accuracy of the Information Furnished by the Seller. No representation,
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statement or information made or furnished by the Seller to the Buyer, including
those contained in this Agreement and the various exhibits attached hereto and
the other information and statements referred to herein, contains or shall
contain any statement of any material fact known to be untrue.
5. REPRESENTATION AND WARRANTIES OF BUYER. In order to induce the Seller
--------------------------------------
to enter into this Agreement and to consummate the transactions contemplated
hereunder, the Buyer hereby makes the following representations, warranties,
covenants and agreements:
5.1 Organization and Existence. Buyer is a corporation duly organized,
--------------------------
legally existing and in good standing under the laws of the State of Delaware
and has all the requisite corporate power and authority to carry on its business
as now conducted and to consummate the transactions contemplated by this
Agreement.
5.2 Authority to Contract. The execution, delivery and performance of this
---------------------
Agreement by Buyer has been duly approved by its Board of Directors, and no
further corporate action is necessary on the part of Buyer to consummate the
transactions contemplated by this Agreement, assuming due execution of this
Agreement by the parties hereto.
5.3 No Brokers or Agents Fees. No agent, broker, finder, representative or
-------------------------
other person or entity acting pursuant to the authority of the Buyer will be
entitled to any commission or finders fee in connection with the origination,
negotiation, execution or performance of the transactions contemplated under
this Agreement.
5.4 Accuracy of Information Furnished by Buyer. No representation,
------------------------------------------
statement or information made or furnished by Buyer to the Seller in this
Agreement, or in connection with the transactions contemplated hereby including,
without limitation copies of the Buyer's filings with the Securities and
Exchange Commission, contains, or shall contain any untrue statement of any
material fact or omits or shall omit any material fact necessary to make the
information contained herein true.
5.5 Registration. Upon the filing of a post effective amendment, Form S-1
------------
filed with the Securities and Exchange Commission effective December 9, 1998, is
true and correct in all material respects and does not omit to state any
material information necessary to make such registration statement not
misleading. A post effective amendment to the Form S-1 is permitted to register
Seller's escrowed shares.
6. ADDITIONAL AGREEMENT OF THE SELLER. The Seller further agrees with the
----------------------------------
Buyer as follows:
11
<PAGE>
6.1 Access to Offices and Records. The Seller shall cause the Company to
-----------------------------
afford representatives of the Buyer, from and after the date of execution of
this Agreement, full access, during normal business hours and upon reasonable
notice, to all offices, books, properties, contracts, documents and records of
the Company and to furnish to the Buyer or its representatives all additional
information, including financial or operating information with respect to the
business and affairs of the Company that the Buyer or its representatives may
reasonably request. Seller acknowledges that Buyer is a publicly-traded
corporation and that Buyer will be required under the applicable securities laws
to make public disclosure of detailed financial data concerning the Company's
operations. Buyer has Seller's permission to disclose (i) the amount of the
Company's revenues; and (ii) such other necessary and appropriate information as
Seller approves in advance of being released, such approval shall not be
unreasonably withheld, provided that no public disclosure shall occur prior to
Closing. Provided further that any furnishing of such information to the Buyer
and any investigation by the Buyer shall not affect the right of the Buyer to
rely solely upon the representations and warranties made by the Seller in or
pursuant to this Agreement; and provided further, that the Buyer: (i) will hold
in strict confidence all documents and information concerning the Company so
furnished; and (ii) will promptly return all such documents and all copies to
the Company if this Agreement is not closed for any reason.
6.2 Conduct of Business Pending the Closing. From and after the execution
---------------------------------------
and delivery of this Agreement except in the ordinary course of business and
until the Closing Date, except as otherwise provided by the prior written
consent or approval of the Buyer:
6.2(a) The Seller will cause the Company to conduct its business and operations
in the manner in which the same has heretofore been conducted and Seller will
use his best efforts to cause the Company to: (i) preserve the Company's current
business organization intact; (ii) keep available to the Buyer the services of
the Company's current employees and the Company's agents and distributors; and
(iii) preserve the Company's current relationships with customers, suppliers and
others having business dealing with the Company.
6.2(b) The Seller will cause the Company to maintain all of its properties in
customary repair, order and condition, reasonable wear and use excepted, and
will maintain its existing insurance upon all of its properties and with respect
to the conduct of its business in such amounts and of such kinds comparable to
that in effect on the date of this Agreement.
6.2(c) The Seller will take action to insure that the Company will not: (i)
pay any bonus or increase the rate of compensation of any of the Company's
employees or enter into any new employment agreement or amend any existing
employment agreement; (ii) make any general increase in the compensation or rate
of compensation payable or to become payable to the Company's hourly-rated
employees; (iii) sell or transfer any of the Company's assets; (iv) obligate
itself for capital expenditures other than in the ordinary course of business
and not unusual in amount; or (v) incur
12
<PAGE>
any material obligations or liabilities, which are not in the ordinary course of
business, or enter into any material transaction.
6.2(d) The Seller shall not, and shall not permit the Company to, issue or
enter into any subscriptions, options, agreements or other commitments in
respect of the issuance, transfer, sale or encumbrance of any shares of the ACRM
Common Stock.
6.3 Execution of Further Documents by Seller. From and after the Closing,
----------------------------------------
upon the reasonable request of the Buyer, the Seller shall execute, acknowledge
and deliver such documents as may be appropriate to carry out the transactions
contemplated by this Agreement.
6.4 Indemnification by Seller.
-------------------------
6.4(a) The Seller will indemnify and hold the Buyer harmless from and against
any and all damage, loss, cost, deficiency, assessment, liability or other
expense (including reasonable attorneys fees, costs of court and litigation
expenses, if any) suffered, incurred or paid by the Buyer as a result of:
(1) The untruth, inaccuracy, material breach or material violation of
any representation, warranty, covenant or other obligation of the Seller set
forth in or made in connection with this Agreement;
(2) The assertion against the Buyer or the Company of any material
liability or obligation of the Company or of any claim relating to the operation
of the Company's business, prior to the Closing Date, whether absolute or
contingent, matured or unmatured, known or unknown as of the Closing Date
(including, without limitation, customer claims or disputes but excluding
repairs of an incidental or customary nature, such as, but not limited to
regrading surfaces and snaking out septic system lines); or
(3) The enforcement of the Buyer's right to indemnification under this
Agreement.
6.4(b) The Buyer shall give written notice to the Seller of any claim, action,
suit or proceeding relating to the indemnity herein provided by Seller not later
than ten (10) days after Buyer has received notice thereof. Seller shall have
the right, at his option, to compromise or defend, at his own expense and by his
own counsel (which counsel shall be reasonably satisfactory to Buyer), any such
action, suit or proceeding. Buyer and Seller agree to cooperate in any such
defense or settlement and to give each other full access to all information
relevant thereto.
6.4(c) The Stock Consideration shall constitute security for Seller's
indemnification. The Stock Consideration shall be reduced up to a total of two
million dollars ($2,000,000.000) in then current value of stock, by the
aggregate amount of Buyer's loss caused by Seller's material breach of any
representation warranty, covenant or other obligation hereunder, provided that
aggregate amount
13
<PAGE>
does not exceed two million dollars ($2,000,000.00). If Buyer makes no claim of
breach of any of Seller's representations, warranties or covenants, or of any
deficiency resulting from uncollectible receivables, then the Stock
Consideration shall be delivered in accordance with the schedule set forth
above. Notwithstanding the foregoing, Seller's liability to Buyer for
indemnification shall not be limited with respect to the environmental matters
described on Schedule 6.4(c)
6.4(d) If Buyer asserts there has been a breach of any of Seller's
representations, warranties or covenants or asset loss or damage due to
uncollectible receivables, then Buyer shall notify Seller in writing within such
period setting forth the nature of the breach and/or the amount of loss, damage,
cost or expense, as provided above. Any claim by Buyer against Seller not
within the applicable insurance coverage must individually equal at least ten
thousand dollars ($10,000.00) before Seller is liable for indemnification;
however, once Buyer's claim totals at least ten thousand dollars ($10,000.00),
then Seller shall be liable for the full amount of such claim.
6.4(e) Except as herein expressly provided, the remedies provided in paragraph
6.4 hereof shall be cumulative and shall not preclude assertion by the Buyer of
any other rights or the seeking of any other remedies available against the
Seller at law or in equity.
7. ADDITIONAL AGREEMENT OF THE BUYER.
---------------------------------
7.1 Execution of Further Documents by Buyer. From and after the Closing,
---------------------------------------
upon reasonable request of Seller, Buyer shall execute, acknowledge and deliver
to Seller all such further documents as may be appropriate to carry out the
transactions contemplated by this Agreement.
7.2 Indemnification by Buyer.
------------------------
7.2(a) The Buyer will indemnify and hold the Seller harmless from and against
any and all damages, loss, cost, deficiency assessment, liability or other
expense (including reasonable attorneys fees, costs of court and costs of
litigation, if any) suffered, incurred or paid by the Seller as a result of:
(1) The untruth, inaccuracy, breach or violation of any representation,
warranty, covenant or other obligation of the Buyer set forth in or
made in connection with this Agreement;
(2) Any claims or disputes asserted against the Seller relating to the
operation of the Company's business, after the Closing Date,
whether absolute or contingent, matured or unmatured, known or
unknown as of the Closing Date (including, without limitation,
customer claims or disputes for which there is insurance coverage
under the applicable liability policies;
14
<PAGE>
(3) The assertion against the Seller of any liability or obligation of
the Buyer or the Company or of any claim relating to the operation
of the Company's waste collection and transportation business
subsequent to the Closing Date (including, without limitation,
customer claims or disputes); or
(4) The enforcement of the Seller's right to indemnification under this
Agreement.
The Buyer agrees to provide cooperation, support and assistance to the Seller in
defending any Claim involving operation of the Company's business prior to the
closing date, including customer complaints or disputes.
7.2(b) The Seller shall give written notice to the Buyer of any claim, action,
suit or proceeding relating to the indemnity herein provided by Buyer not later
than thirty (30) days after Seller has received notice thereof. Buyer shall have
the right, at its option, to compromise or defend, at its own expense and by its
own counsel (which counsel shall be reasonably satisfactory to Seller), any such
action, suit or proceeding. Seller and Buyer agree to cooperate in any such
defense or settlement and to give each other full access to all information
relevant thereto, but Seller has the right to defend or settle the claim as
Seller determines.
7.2(c) Except as herein expressly provided, the remedies provided in Paragraph
7.2 hereof shall be cumulative and shall not preclude assertion by the Seller of
any other rights or the seeking of any other remedies available against the
Buyer at law or in equity.
8. CONDITIONS TO OBLIGATIONS OF THE BUYER. The obligations of the Buyer to
--------------------------------------
effect the transactions contemplated by this Agreement shall be subject to the
fulfillment at or prior to the Closing Date of each of the following conditions:
8.1 Validity of Seller's Representations. To the best of Seller's
------------------------------------
knowledge, all representations and warranties of the Seller contained in this
Agreement or otherwise made in writing pursuant to this Agreement shall have
been true and correct at and as of the date hereof and they shall be true and
correct at and as of the Closing Date, with the same force and effect as though
made at and as of the Closing Date.
8.2 Pre-Closing Obligations. The Seller shall have performed and complied
-----------------------
with all the obligations and conditions required by this Agreement to be
performed or complied with by Seller at or prior to the Closing Date, including
the execution and delivery of all documents and contracts required to be
delivered at or before the Closing Date pursuant to this Agreement.
8.3 Opinion of Counsel for Seller. The Buyer shall have received a
-----------------------------
favorable opinion from counsel for the Seller dated the date of the Closing, in
form satisfactory to counsel for the Buyer, to the effect that:
15
<PAGE>
8.3(a) The Company is a corporation, duly organized and legally existing under
the laws of the State of New Jersey, and it has the corporate power and
authority to carry on its business as now being conducted and to own or hold
under lease, or otherwise, its assets.
8.3(b) This Agreement has been duly executed and delivered by the Seller, and
constitutes a valid, enforceable and binding obligation of the Seller pursuant
to the terms of this Agreement.
8.3(c) Except as otherwise disclosed in this Agreement, counsel does not know
of any action, suit, investigation or other legal, administrative or arbitration
proceeding pending against the Seller or the Company, or which questions the
validity or enforceability of this Agreement or of any action taken or to be
taken pursuant to or in connection with this Agreement or any agreement
contemplated herein.
8.3(d) To the knowledge of such counsel, no consent, authorization, license,
franchise, permit, approval or order of any court or governmental agency or
body, other than those obtained by Seller and delivered to the Buyer prior to or
on the date of the opinion, is required for the sale of the ACRM Common Stock by
the Seller pursuant to this Agreement.
8.3(e) The execution and performance of this Agreement by the Seller will not
violate: (i) the Articles of Incorporation or the By-Laws of the Company, or
(ii) any order of any court or other agency of government known to said counsel.
8.3(f) The instruments of conveyance and assignments executed by the Seller to
the Buyer pursuant to this Agreement are adequate to convey the ownership to the
ACRM Common Stock, free and clear of all liens, claims or encumbrances known to
such counsel after conducting a UCC-11 lien search with the offices of the
Secretary of State for the State of New Jersey, and the offices of the County
Clerk for the County of Sussex, in the State of New Jersey.
8.3(g) To the knowledge of such counsel (after reasonable investigation),
Seller owns all of the issued and outstanding shares of capital stock of the
Company.
8.4 Receipt by the Buyer of Necessary Consents. All necessary consents or
------------------------------------------
approvals of third parties to any of the transactions contemplated hereby shall
have been obtained, and satisfactory evidence of such consents or approvals
shall have been delivered to the Buyer at Closing.
8.5 Resignation of Officers and Directors. Buyer shall have received such
-------------------------------------
resignations of officers and directors of the Companies as shall have been
requested by Buyer.
16
<PAGE>
9. CONDITIONS TO OBLIGATIONS OF THE SELLER. The obligations of the Seller
---------------------------------------
to effect the transactions contemplated by this Agreement shall be subject to
the fulfillment at or prior to the Closing Date of each of the following
conditions:
9.1 Validity of Buyer's Representations. All representations and warranties
-----------------------------------
of the Buyer contained in this Agreement or otherwise made in writing pursuant
to this Agreement shall have been true and correct at and as of the date hereof
and they shall be true and correct at and as of the Closing Date, with the same
force and effect as though made at and as of the Closing Date.
9.2 Pre-Closing Obligations. The Buyer shall have performed and complied
-----------------------
with all the obligations and conditions required by this Agreement to be
performed or complied with by Seller at or prior to the Closing Date, including
the execution and delivery of all documents and contracts required to be
delivered at or before the Closing Date pursuant to this Agreement.
9.3 Corporate Authority of Buyer. The execution and performance of this
----------------------------
Agreement by the Buyer shall have been duly and legally authorized in accordance
with applicable law, and the Buyer shall have furnished to counsel for the
Seller certified copies of resolutions adopted by the Board of Directors of the
Buyer authorizing and proving the execution and delivery of this Agreement and
performance of the transactions contemplated hereunder.
9.4 Opinion of Counsel for Buyer. The Seller shall have received a
----------------------------
favorable opinion from counsel for the Buyer dated the date of the Closing, in
form satisfactory to counsel for the Seller, to the effect that:
9.4(a) The Buyer is a corporation, duly organized and legally existing in good
standing under the laws of the State of Delaware, and it has the corporate power
and authority to carry on its business as now being conducted and to carry out
the transactions and agreements contemplated hereby.
9.4(b) All corporate and other proceedings required to be taken by or on the
part of the Buyer in order to authorize it to perform its obligations hereunder
have been duly and properly taken, including any necessary approval or
authorization by the Board of Directors of the Buyer.
9.4(c) This Agreement has been duly executed and delivered by the Buyer and
constitutes a valid, enforceable and binding obligation of the Buyer pursuant to
the terms of this Agreement.
9.4(d) Except as otherwise disclosed in this Agreement, said counsel does not
know of any action, suit, investigation or other legal, administrative or
arbitration proceeding which questions the validity or enforceability of this
Agreement or of any action taken or to be taken pursuant to or in connection
with this Agreement or any agreement contemplated herein.
9.4(e) The execution and performance of this Agreement by the Buyer will not
violate: (i) the
17
<PAGE>
Articles of Incorporation or the By-Laws of the Buyer; or (ii) any order of any
court or other agency of government known to said counsel.
9.4(f) The EarthCare Board resolution shall be referred to in the legal opinion
and that to the best of Counsel's knowledge, all SEC filings that are required
by EarthCare are current or will be rendered current within a reasonable time
and that there is no informal order of investigation by the SEC or any state
agency with respect to EarthCare.
10. ADJUSTMENT TO PURCHASE PRICE.
----------------------------
10.1 The purchase price shall be adjusted as follows:
10.1(a) If the Company's current assets as of the Closing Date exceed the
Company's liabilities as of such date, then such excess shall be paid to Seller
as an addition to the purchase price.
10.1(b) If the Company's liabilities as of the Closing Date exceed the Company's
current assets as of such date, the purchase price shall be reduced accordingly.
10.2 The adjustment to be made under this paragraph shall be made 120 days
after the Closing Date (The Adjustment Date). Current assets and liabilities
shall be determined in accordance with generally accepted accounting principles
except that accounts receivable, including unbilled services rendered to the
date of closing and billed thereafter, will be considered current assets only if
collected prior to the Adjustment Date or are otherwise accepted in writing by
Buyer. Any adjustments shall be subject to Seller's accounting firm being in
agreement with the adjustment and in the event of a dispute, then a reputable
accounting firm located in New Jersey shall be selected by agreement who shall
resolve that dispute. If the parties cannot agree upon such an accounting firm,
then PriceWaterhouseCoopers shall be selected provided it does not conflict with
either the Seller or the Buyer.
10.3 The adjustment shall be made hereunder as follows:
10.3(a) If there is an excess of current assets over liabilities, the excess, to
the extent of cash collected, shall be paid to Seller on the Adjustment Date. To
the extent such excess is in the form of yet uncollected accounts receivable,
Buyer shall cause the Company to continue to collect such outstanding
receivables and Buyer shall pay to Seller, monthly, receivables thereafter
collected. Payment on account of such receivables shall be made by the 10/th/
day of each month for collections received during the preceding month and shall
be accompanied by a statement of accounts collected.
10.3(b) All payment received after Closing in respect of Customer Accounts shall
be applied to the oldest receivables then outstanding. In addition, the Seller
shall cause the Company to collect all accounts receivable in its normal course
provided that the Seller shall not be required to cause the
18
<PAGE>
Company to pursue the collection of accounts receivable for the direct or
indirect benefit of Seller unless Seller shall have agreed to bear the costs
thereof.
11. SELLER-S NON-COMPETE AND NON-SOLICITATION AGREEMENT. As inducement to
---------------------------------------------------
Buyer to enter into this Agreement and perform its obligations hereunder, and in
consideration of the payments to Seller pursuant to this Agreement, the Seller
agrees that Seller will not, for a period of two (2) years from the Closing
Date, or as otherwise provided in any employment agreement between the parties
------------------------------------------------------------------------
directly or indirectly (whether as owner, partner, shareholder, agent, employee,
independent contractor, consultant or otherwise): (i) engage in any other
business which directly or indirectly competes with business of the Company or
Buyer, or with any subsidiary of Buyer, in each case, within the County of
Sussex and the County of Sussex, State of New Jersey; (ii) solicit any party who
is or was a customer or supplier of the Company on the Closing Date or at any
time during the 12 month period immediately prior thereto for services of any
type or quality being provided by the Company; (iii) solicit for employment any
person who was or is an employee of the Company on the Closing Date, or at any
time during the 12 month period immediately prior thereto; or (iv) either
directly or indirectly, divulge, disclose, or communicate to any person, firm or
corporation in any manner whatsoever any confidential information relating to
the business of Buyer, or the Company. The term, Confidential information, as
used herein means all information of a business or technical nature relative to
the business of Buyer, the business of any customers of the Company or any
business of any person, firm or corporation which consults with, or is
affiliated with, Buyer or the Company. The term "confidential information" shall
not include information so generally known as to be part of the public domain.
Each of the covenants contained in this Article are separate and independent.
The Seller acknowledges and agrees that Buyer's and Company's remedies at law
may be inadequate in the event of a breach or threatened breach of the covenants
set forth herein, and in such event, Buyer and the Company shall be entitled to
have an injunction issued by any court of competent jurisdiction, enjoining and
restraining each and every party concerned therewith from the creation or
continuation of such breach. A portion of the purchase price will be
attributable to the noncompete-nonsolicitation provisions of this agreement.
Notwithstanding the foregoing, this provision does not prohibit the Sellers from
individually owning a minority interest in a publicly owned competitor.
Furthermore, notwithstanding the foregoing, disclosures that are required to be
made by law such as subpoena or court orders are exempt from this provision.
12. OTHER PROVISIONS.
----------------
12.1 Employment Agreements. At Closing, Buyer will enter into written
---------------------
Employment Agreements with key employees of Company in a form satisfactory to
Buyer. All terms and conditions are set forth as Schedule ____.
12.2 Incomplete Exhibits. The parties hereto acknowledge and agree (a) that
-------------------
many, if not all, of
19
<PAGE>
the schedules to be attached to this Agreement will not have been prepared by
the time of execution of this Agreement, and (b) that consummation of the
transactions contemplated by this Agreement are subject to the completion of
such exhibits by Seller (to the extent that an exhibit is to be completed by
Seller, such exhibit must be reasonably acceptable to Buyer) or Buyer ( to the
extent that an exhibit is to be completed by Buyer, it must be reasonably
acceptable to Seller) as the case may be, prior to or at the Closing, pursuant
to the terms of this Agreement. Buyer is required to proceed with a closing so
long as there are no material documents that are required to be annexed as
exhibits.
12.3 Survival of Representations and Warranties Indemnifications. The
-----------------------------------------------------------
representations, warranties, indemnifications, obligations and agreements of the
parties contained in this Agreement, or in any writing delivered pursuant to
provisions of this Agreement, shall survive the Closing for a period of 42
months years with the exception of the representation contained in Paragraph
4.6(b) and with the exception of representations and warranties concerning
Paragraph 4.16. hereof, Environmental Matters, which will survive for as long as
any claims may be asserted under the applicable periods of limitation for
violations of any environmental law, rule or regulation.
12.4 Waiver or Extension of Conditions. The Seller or the Buyer may extend
---------------------------------
the time for or waive the performance of any of the obligations of the other
party, waive any inaccuracies in the representations or warranties by the other
party, or waive compliance by the other party with any of the covenants or
conditions contained in this Agreement nor will such actions impose penalties.
Each party has a reasonable right to an extension.. Any such extension or waiver
shall be in writing and signed by the Seller and the Buyer. Any such extension
or waiver shall not act as a waiver or an extension of any other provisions of
this Agreement.
12.5 Notices. Any notice, request or other document shall be in writing and
--------
sent by registered or certified mail, return receipt requested, postage prepaid
and addressed to the party to be notified at the following addresses, or such
other address as such party may hereafter designate by written notice to all
parties, which notice shall be effective as of the date of posting, substitute:
or alternatively by hand delivery or complete fax transmission. Notices are
effective upon receipt.
(i) If to the Buyer:
EarthCare Company
14901 Quorum Drive
Suite 200
Dallas, TX 75240
Copy to: Robert C. Gist, Esq.
12809 Plum Hollow Drive
Oklahoma City, OK 73142-5148
20
<PAGE>
(ii) If to the Seller
All County Resource Management Corp.
99 Maple Grange Road
Vernon, New Jersey 07462
Attention: John or Frank Coppola
Copy to: Richard I. Clark, Esq.
LADDEY, CLARK & RYAN
60 Blue Heron Road
Sparta, New Jersey 07871
12.6 Governing Law. This Agreement shall be governed by the laws of the
-------------
State of New Jersey.
12.7 Successors and Assigns. This Agreement shall be binding upon and inure
----------------------
to the benefit of the parties hereto and their respective heirs,
representatives, successors and assigns.
12.8 Headings. The subject headings of the Sections of this Agreement are
--------
included for purposes of convenience only and shall not affect the construction
or interpretation of any of its provisions.
12.9 Counterparts. This Agreement may be executed simultaneously in two or
------------
more counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
12.10 Dispute Resolution. Any controversy or claim arising out of, in
------------------
connection with, or relating to this Agreement or a breach thereof shall be
settled by suit instituted in a State or Federal Court in New Jersey.
12.11 Entire Agreement; Modification. This Agreement (including the schedules
------------------------------
attached hereto) and the documents delivered pursuant hereto constitute the
entire agreement and understanding between the parties, and supersede any prior
agreements and understandings relating to the subject matter hereof. This
Agreement may be modified or amended by a written instrument executed by all
parties hereto.
IN WITNESS WHEREOF the parties have executed this Agreement as of the 10th day
of March, 2000.
ASeller@
___________________________________
21
<PAGE>
Frank G. Coppola
___________________________________
John Coppola
"Buyer"
EarthCare Company
By:_______________________________
22
<PAGE>
SCHEDULE 4.2
------------
Frank G. and John Copolla will retain interest in Eco-Tech Corporation, a non-
competing consulting firm.
23
<PAGE>
SCHEDULE 4.6(d)
---------------
PROPERTY OF THE COMPANY EXCLUDED FROM THE AGREEMENT
---------------------------------------------------
Frank G. and John Copolla will personally retain full ownership of the following
real property:
(2) The Masonic Lodge located in Warwick, New York [Legal Description to be
Added];
(3) A building located in Washington Township, Warren County [Legal Description
to be Added]; and
(4) A building on Route 515 in Vernon Township, Sussex County [Legal
Description to be Added].
24
<PAGE>
SCHEDULE 4.16
-------------
STORAGE TANKS ON ALL COUNTY RESOURCE MANAGEMENT PREMISES:
(5) An underground fuel tank at the Beacon, New York location that is
approximately 10 years old;
(6) A septic tank by the pad in the Vernon, New Jersey location; and
(7) A tank in the Garage at Hernon, New Jersey location used for washing trucks
and equipment.
25
