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):
September 30, 1998
LEAK-X ENVIRONMENTAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 0-17776 23-2823596
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
790 E. Market Street, Suite 270, West Chester, PA 19382
(Address of principal executive offices)(zip code)
Registrant's Telephone Number, including Area Code: (610)344-3380
N/A
(Former name or former address, if changed since last report)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On September 30, 1998, Leak-X Environmental Corporation (the
"Company"), entered into a Stock Purchase Agreement (the "Stock Purchase
Agreement") with George A. Nolan and James G. Warburton (the "Purchasers") and
Groundwater Recovery Systems, Inc. ("GRS"). Under the Stock Purchase
Agreement, the Purchasers acquired all the outstanding stock of GRS, a
wholly-owned subsidiary of the Company. GRS is involved in the manufacture
of groundwater remediation equipment.
Pursuant to the Stock Purchase Agreement, the Company received from
the Purchasers: (i) $150,000 which was paid to First Union National Bank
("First Union") to reduce the Company's obligation under the Company's
$750,000 Promissory Note and Loan Agreement with First Union dated July 9,
1998 (the "Loan Documents"); (ii) $9,268.55 which was paid to First Union for
the balance of the Company's obligation under a promissory note made by GRS to
First Union (the "GRS Note"); (iii) certificates representing an aggregate of
230,768 shares of the Company's Common Stock issued in the names of the
Purchasers which were canceled; (iv) promissory notes payable to the
Purchasers with balances as of September 30, 1998 of $100,000 in the aggregate
which were canceled and; (v) outstanding stock option agreements issued in the
names of the Purchasers to acquire 30,000 shares of the Company's common stock
which were canceled.
In return, the Purchasers received from the Company: (i) all of the
outstanding stock of GRS and (ii) a consent executed by First Union
indicating: (a) the removal of GRS as a co-borrower under the Company's Loan
Documents and (b) the removal of GRS as a borrower under the GRS Note. The
Purchasers will also receive a monthly payment of $6,250 each for a period of
24 months commencing November 1, 1998 which represents reduced severance
payments under the Purchasers' employment agreements which were terminated in
connection with the sale of GRS.
The purchase price for GRS was determined through negotiations
between the parties. Messrs. Nolan and Warburton are officers and directors
of GRS and had been directors of the Company from September 1995 through July
15, 1998.
Following the sale of GRS, the Company has $457,000 outstanding
under its Credit Agreement and $293,000 of available borrowings.
The statements contained herein include forward-looking statements
that involve a number of risks and uncertainties. In addition to the facts
discussed, among the other factors that could cause actual results to differ
materially are the following: enforcement of environmental regulations,
business conditions and growth in the industry and general economy;
competitive factors; changes in sales mix; and the risk factors listed from
time to time in the Company's SEC reports.
ITEM 7.FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial statements of business acquired. Not applicable.
(b) Pro forma financial information.
Unaudited Pro Forma
Financial Statements..........................F-1
Pro Forma Consolidated Balance Sheet
June 30, 1998 ....... ........................F-2
Notes to Pro Forma Consolidated
Balance Sheet.................... ............F-3
Pro Forma Consolidated Income Statement
for the Six Months Ended June 30, 1998........F-4
Pro Forma Consolidated Income Statement
for the Year Ended December 31, 1997..........F-5
Notes to Pro Forma Income Statements..........F-6
(c) Exhibits
2.1 Stock Purchase Agreement dated as of the 30th day of September,
1998, between George A. Nolan and James G. Warburton , Groundwater Recovery
Systems, Inc., a Delaware corporation, and Leak-X Environmental Corporation, a
Delaware corporation and the Registrant.
10.1 Consent, waiver and modification letter to Loan Documents from
First Union National bank dated August 25, 1998.
UNAUDITED PRO FORMA FINANCIAL STATEMENTS
On September 30, 1998, Leak-X Environmental Corporation (the
"Company"), entered into a Stock Purchase Agreement (the "Stock Purchase
Agreement") with George A. Nolan and James G. Warburton (the "Purchasers") and
Groundwater Recovery Systems, Inc. ("GRS"). Under the Stock Purchase
Agreement, the Purchasers acquired all the outstanding stock of GRS, a
wholly-owned subsidiary of the Company. GRS is involved in the manufacture
of groundwater remediation equipment.
Pursuant to the Stock Purchase Agreement, the Company received from
the Purchasers: (i) $150,000 which was paid to First Union National Bank
("First Union") to reduce the Company's obligation under the Company's
$750,000 Promissory Note and Loan Agreement with First Union dated July 9,
1998 (the "Loan Documents"); (ii) $9,268.55 which was paid to First Union for
the balance of the Company's obligation under a promissory note made by GRS to
First Union (the "GRS Note"); (iii) certificates representing an aggregate of
230,768 shares of the Company's Common Stock issued in the names of the
Purchasers which were canceled; (iv) promissory notes payable to the
Purchasers with balances as of September 30, 1998 of $100,000 in the aggregate
which were canceled; and (v) outstanding stock option agreements issued in
the names of the Purchasers to acquire 30,000 shares of the Company's common
stock which were canceled. In return, the Purchasers received from the
Company: (i) all of the outstanding stock of GRS and (ii) a consent executed
by First Union indicating (a) the removal of GRS as a co-borrower under the
Company's Loan Documents and (b) the removal of GRS as a borrower under the
GRS Note. The Purchasers will also receive a monthly payment of $6,250 each
for a period of 24 months commencing November 1, 1998 which represents
reduced severance payments under the Purchasers' employment agreements which
were terminated in connection with the sale of GRS.
GRS will be classified as a discontinued operation by the Company
following the sale. The loss on the sale will be reported as a loss on
disposal of a discontinued operation.
The Unaudited Pro Forma Financial Statements which follow include
the accounts of Leak-X and the effects of the sale on the financial position
and the results of operation. The Pro Forma Financial Statements for June 30,
1998 and for the six months then ended assume that the sale was made on
January 1, 1998 for the Consolidated Income Statement and as of June 30, 1998
for the Consolidated Balance Sheet. The Pro Forma Consolidated Income
Statement for the year ended December 31, 1997 assumes the sale was made on
January 1, 1997.
The Pro Forma Consolidated Income Statements are presented for
comparative purposes only and are not indicative of what the actual results
would have been had the transaction occurred as of the beginning of the
respective periods nor do they purport to indicate the results which may
be attained in the future.
LEAK-X ENVIRONMENTAL CORPORATION
PRO FORMA CONSOLIDATED BALANCE SHEET
(UNAUDITED)
AS OF JUNE 30, 1998
<TABLE>
<CAPTION>
Pro Forma
Adjustments;
Leak-X Sale of Leak-X
Historical GRS Pro Forma
</CAPTION>
<S> <C> <C> <C>
ASSETS:
CURRENT ASSETS
Cash and cash equivalents $ 150,948 $ (5,049)(a) $ 145,899
Accounts receivable, net 2,188,140 (655,407)(a) 1,532,733
Estimated earnings in excess
of billings 25,337 25,337
Inventory 190,817 (190,817)(a) 0
Other current assets 130,281 (34,091)(a) 96,190
Net assets of discontinued
operations 499,234 499,234
------------ ------------ ------------
TOTAL CURRENT ASSETS 3,184,757 (885,364) 2,299,393
PROPERTY AND EQUIPMENT, NET 137,565 (36,214)(a) 101,351
OTHER ASSETS 126,004 (15,333)(a) 110,671
------------ ------------ ------------
TOTAL ASSETS $ 3,448,326 $ (936,911) $ 2,511,415
============ ============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY:
CURRENT LIABILITIES
Accounts payable and
accrued expenses $ 2,312,797 $ (260,009)(a) $ 2,052,788
Unearned revenue 32,380 (24,830)(a) 7,550
Line of credit 607,000 (150,000)(a) 457,000
Notes payable to directors 100,000 (100,000)(a) 0
Current portion of
long term debt 26,187 (26,187)(a) 0
Net liabilities of
discontinued operations 417,354 417,354
------------ ------------ ------------
TOTAL CURRENT LIABILITIES 3,495,718 (561,026) 2,934,692
LONG TERM DEBT ____ 150,000 (a) 150,000
STOCKHOLDERS' EQUITY
Common stock $.001 par value:
5,000,000 shares authorized,
1,219,645 issued and
outstanding 1,220 (231)(b) 989
Additional paid-in capital 8,308,015 231 (b) 8,308,246
Accumulated deficit (8,356,627) (525,885)(a) (8,882,512)
------------ ------------ ------------
TOTAL STOCKHOLDERS' EQUITY (47,392) (525,885) (573,277)
TOTAL LIABILITIES AND
STOCKHOLDERS' EQUITY $ 3,448,326 $ (936,911) $ 2,511,415
============ ============ ============
</TABLE>
See Notes to Pro Forma Consolidated Balance Sheet
NOTES TO PRO FORMA CONSOLIDATED BALANCE SHEET
(a) To eliminate GRS's assets and liabilities, accrue post-closing payments of
$300,000, record cash received and applied to existing debt, record
cancellation of $100,000 of notes payable and record loss on sale of GRS.
(b) To record the cancellation of 230,768 shares of Common Stock returned by
the Purchasers.
LEAK-X ENVIRONMENTAL CORPORATION
PRO FORMA CONSOLIDATED INCOME STATEMENT
(UNAUDITED)
FOR THE SIX MONTH PERIOD ENDED JUNE 30, 1998
<TABLE>
<CAPTION>
Pro Forma
Adjustments;
Leak-X Sale of Leak-X
Historical GRS Pro Forma
</CAPTION>
<S> <C> <C> <C>
Revenues:
Service $ 3,387,587 $ $ 3,387,587
Product 1,503,452 (1,503,452)(a) 0
4,891,039 (1,503,452) 3,387,587
Cost of Revenues:
Service 2,476,184 2,476,184
Product 1,093,860 (1,093,860)(a) 0
3,570,044 (1,093,860) 2,476,184
Selling, general and
administrative expenses 1,279,943 (427,491)(a) 852,452
Operating income $ 41,052 $ 17,899 $ 58,951
Other income (4,177) (11)(a) (4,188)
Interest expense 35,136 (20,548)(a)(b) 14,588
Net income before taxes 10,093 38,458 48,551
Income tax expense 1,642 0 1,642
Net income $ 8,451 $ 38,458 $ 46,909
Weighted average number of shares of
common stock outstanding Basic 1,219,645 988,877
Diluted 1,282,348 1,051,580
Net income per share
Basic $0.01 $0.05
Diluted $0.01 $0.04
</TABLE>
See Notes to Pro Forma Consolidated Income Statements
LEAK-X ENVIRONMENTAL CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED INCOME STATEMENT
(UNAUDITED)
FOR THE YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
Pro Forma
Adjustments;
Leak-X Sale of Leak-X
Historical GRS Pro Forma
</CAPTION>
<S> <C> <C> <C>
Revenues:
Service $ 7,549,825 $ $ 7,549,825
Product 2,544,631 (2,544,631)(a) 0
10,094,456 (2,544,631) 7,549,825
Cost of Revenues:
Service 5,911,263 4,392 5,915,655
Product 1,802,688 (1,802,688)(a) 0
7,713,951 (1,798,296) 5,915,655
Selling, general and
administrative expenses 2,481,844 (828,377)(a) 1,653,467
Operating loss $ (101,339) $ 82,042 $ (19,297)
Other (income) expense 1,674,167 (1,685,505)(a)(c) (11,338)
Interest expense 61,663 (52,387)(a)(b) 9,276
Net loss before taxes (1,837,169) 1,819,934 (17,235)
Income tax expense 3,533 0 3,533
Net loss $ (1,840,702) $ 1,819,934 $ (20,768)
Weighted average shares of common
stock outstanding Basic 1,219,645 988,877
Diluted 1,219,645 988,877
Net income (loss) per share
Basic ($1.51) ($0.02)
Diluted ($1.51) ($0.02)
</TABLE>
See Notes to Pro Forma Consolidated Income Statements.
NOTES TO PRO FORMA CONSOLIDATED INCOME STATEMENTS
(a) To eliminate the operations of GRS.
(b) To adjust interest expense for the adjusted balance on the line of credit
and the elimination of interest expense on the notes payable to the Purchasers.
(c) To eliminate the amortization and write-off of goodwill associated with
GRS.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
LEAK-X ENVIRONMENTAL CORPORATION
Dated: October 9, 1998 By: /s/ Joyce A. Rizzo
Name: Joyce A Rizzo
Title: Chief Executive Officer
INDEX OF EXHIBITS
Exhibit No. Exhibit Description
2.1 Stock Purchase Agreement dated as of the 30th day of September,
1998, between George A. Nolan and James G. Warburton, Groundwater
Recovery Systems, Inc., a Delaware corporation, and Leak-X
Environmental Corporation, a Delaware corporation and
the Registrant.
10.1 Consent, waiver and modification letter to Loan Documents from
First Union National Bank dated August 25, 1998.
STOCK PURCHASE AGREEMENT dated as of the 30th day of September, 1998
(this "Agreement"), between GEORGE A. NOLAN and JAMES G. WARBURTON
(collectively, the "Purchasers"), GROUNDWATER RECOVERY SYSTEMS, INC., a
Delaware corporation (the "Company"), and LEAK-X ENVIRONMENTAL, INC., a
Delaware corporation (the "Seller").
RECITALS:
WHEREAS, the Seller is the beneficial and record owner of 200 shares
of common stock, par value $.01 per share, of the Company ( the "Company
Shares"), and desires to sell the Company Shares to the Purchasers in
accordance with the terms hereof;
WHEREAS, the Purchasers have been responsible for the management of
the Company since September 29, 1995;
WHEREAS, the Purchasers desire to purchase the Company Shares from
the Seller in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations and agreements contained in this Agreement, the
parties hereto agree as follows:
ARTICLE I.
PURCHASE AND SALE OF THE SHARES
SECTION 1.1. Transfer of Shares; Consideration.
(a) Upon the terms and subject to the conditions hereof, on the
date hereof the Seller hereby sells, assigns and delivers to the Purchasers
the Company Shares free and clear of all options, pledges, security interests,
liens, mortgages, claims, charges, voting agreements, voting trusts or other
encumbrances or restrictions on transfer of any kind whatsoever (collectively,
the "Encumbrances").
(b) Upon the terms and subject to the conditions hereof, on the
date hereof the Purchasers hereby purchase and accept the Company Shares and
simultaneously with execution of delivery of this Agreement are paying and
delivering the Purchase Price (as hereafter defined).
SECTION 1.2. The Closing. The transfer of the Company Shares and the
consummation of the transactions contemplated by this Agreement (the
"Closing") is occurring simultaneously with the execution and delivery of this
Agreement by the parties hereto.
(a) At the Closing, the Seller is delivering to the Purchasers:
(i) a certificate evidencing the Company Shares, properly
endorsed for transfer or accompanied by duly executed stock powers, in either
case in blank or in the name of the Purchasers;
(ii) resignations of Joyce A. Rizzo, Robert D. Goldman, and
Eileen E Bartoli as directors and officers of the Company, respectively; and
(iii) consent executed by First Union National Bank ("First
Union") indicating (A) that the Company, following the delivery to First Union
of the amount set forth in Section 1.2 (b) (i) below, will be removed as a
co-borrower under the promissory note in the principal amount of $750,000
(the "$750,000 Note"), dated July 9, 1998, made by the Company and Lexicon
Environmental Associates, Inc. ("Lexicon") to First Union and under the loan
agreement by and among the Company, First Union and Lexicon, dated July 9,
1998 (the "Loan Agreement" and collectively with the $750,000 Note, the "Loan
Documents") and (B) that the Company, following the delivery to First Union of
the amount set forth in Section 1.2 (b) (ii) below, will be removed as a
borrower under the promissory note in the principal amount of $200,000 (the
"GRS Note"), dated November 22, 1993, made by the Company to First Union.
(b) At the Closing, the Purchasers are delivering to the Seller
(the "Purchase Price"), payable as follows:
(i) a bank or certified check or wire transfer of same day
funds payable to the order of First Union in the amount $150,000 in payment of
the Company's obligation under the $750,000 Note;
(ii) a bank or certified check or wire transfer of same day
funds payable to the order of First Union in the amount of $9,268.22 in
payment of the Company's remaining obligations under the GRS Note;
(iii) certificates representing an aggregate of 230,768
shares of the Seller's common stock (the "Leak-X Shares") registered in the
names of the Purchasers accompanied by duly executed stock powers, in blank,
with signatures medallion guaranteed which shall be canceled as hereinafter
set forth;
(iv) promissory notes in the aggregate principal amount of
$250,000 made by the Company dated September 29, 1995, as amended on November
13, 1996, and payable to the Purchasers (the "Promissory Notes") which shall
be canceled as hereinafter set forth; and
(v) agreements evidencing options (the "Option Agreements")
to acquire an aggregate of 30,000 shares of the Seller's common stock granted
to the Purchasers which shall be canceled as hereinafter set forth.
SECTION 1.3. Terminations and Purchasers' Release of Seller. Effective
as of the date of the Closing, the parties hereto hereby agree that (i) any
and all rights of the Purchasers in and to the Leak-X Shares are terminated
and the Leak-X Shares shall be returned to the Seller's transfer agent for
cancellation, (ii) the Promissory Notes, the rights of the Purchasers
thereunder and the Seller's guarantees of payment thereof are terminated,
(iii) the Option Agreements and the rights of the Purchasers thereunder are
terminated, (iv) the rights and obligations of the Purchasers, the Seller and
the Company pursuant to the employment agreements by and among the Purchasers,
the Seller and the Company, dated September 29, 1995 (the "Employment
Agreements") are terminated and (v) any rights and obligations of the
Purchasers, the Seller and the Company pursuant to the agreement and plan of
merger by and among the Purchasers, the Seller and the Company, dated
September 29, 1995 (the "Agreement and Plan of Merger") are terminated.
Effective as of the date of the Closing, Purchasers and the Company forever
release and discharge the Seller, its directors, officers and affiliates, from
any and all claims, debts, demands, judgements and liabilities, including
attorney's fees, whatsoever, both in law and equity ("Claims"), that either
Purchaser or the Company ever had, might now or hereafter have, or could have
had, whether known or unknown, against the Seller whether in contract, tort or
otherwise, including any Claims under the Promissory Notes, the Option
Agreements, the Employment Agreements and the Agreement and Plan of Merger or
Claims which result from Seller's having been a stockholder of the Company.
SECTION 1.4. Post Closing Payments. Commencing on November 1, 1998 and
on the first day of each month for a period of 23 months thereafter, the
Seller shall pay each of the Purchasers $6,250 per month for a total of
$150,000 to be paid to each of the Purchasers.
SECTION 1.5. Payment of Expenses. Each party shall be obligated to pay
for any and all fees and expenses of its counsel and accountants and all other
costs and expenses incurred, directly or indirectly, by or on behalf of such
party in the preparation, negotiation, execution and delivery of this
Agreement and the consummation of the transactions contemplated herein.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Purchasers, as of the
date hereof (except as to any representation or warranty which specifically
relates to another date) as follows:
SECTION 2.1. Share Ownership. The Company Shares have been duly
authorized, validly issued and are fully paid and nonassessable, and are owned
of record and beneficially by the Seller, free and clear of all Encumbrances
and are the only outstanding shares of the Company's capital stock.
SECTION 2.2. Organization and Authorization. The Seller is a
corporation validly existing and in good standing under the laws of its
jurisdiction of organization. The Seller has the full power, authority and
legal right to execute, deliver and carry out the terms and conditions of this
Agreement and to sell the Company Shares to the Purchasers, and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement. This Agreement has been duly and validly
executed and delivered by the Seller, and constitutes the legal, valid and
binding obligation of the Seller, enforceable against the Seller in accordance
with its terms.
SECTION 2.3. No Violation. The execution of this Agreement by the
Seller does not, and the performance by the Seller of its obligations
hereunder will not constitute a violation of, or conflict with or result in a
default under: (i) any contract, commitment, agreement, understanding,
arrangement or restriction of any kind, whether written or oral, to which the
Seller is a party or by which the Seller is bound, (ii) any judgment, decree
or order applicable to the Seller, or (iii) the Seller's certificate of
incorporation or by-laws. Neither the execution and delivery of this
Agreement nor the performance by the Seller of its obligations hereunder will
violate any provision of law applicable to the Seller.
SECTION 2.4. Consents and Approvals. Except for the consent of First
Union National Bank, no filing or registration with, no notice to and no
permit, authorization, consent or approval of any third party or any public or
governmental body or authority is necessary for the consummation by the Seller
of the transactions contemplated herein.
SECTION 2.5. Intercompany Debt. Prior to Closing, Seller has caused any
intercompany indebtedness owed from the Company to the Seller to be classified
as a contribution to the Seller's paid in capital.
SECTION 2.6. Brokers' Fees and Commissions. The Seller has not employed
any investment banker, broker, finder or intermediary, and no fee or other
commission is owed by Seller to any third party, in connection with the
transactions contemplated herein.
SECTION 2.7. Execution of Loan Documents. Except for the Loan
Documents, no director or officer of Seller has executed any documents or
entered into any contracts on behalf of the Company which have caused the
Company to incur indebtedness to any third parties.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each of the Purchasers hereby jointly and severally represents and
warrants to the Seller, as of the date hereof (except as to any representation
or warranty which specifically relates to an earlier date) and as of the date
of the Closing, as follows:
SECTION 3.1. Authorization. Each Purchaser has the capacity and legal
right to execute, deliver and carry out the terms and conditions of this
Agreement and to purchase the Company Shares from the Seller and this
Agreement constitutes the legal, valid and binding obligation of each
Purchaser, enforceable against each Purchaser in accordance with its terms.
SECTION 3.2. No Violation. The execution of this Agreement by the
Purchasers does not, and the performance by the Purchasers of their
obligations hereunder will not constitute a violation of, or conflict with or
result in a default under: (i) any contract, commitment, agreement,
understanding, arrangement or restriction of any kind, whether written or
oral, to which either of the Purchasers or the Company is a party or by which
either of the Purchasers or the Company or their respective properties or
assets are bound, or (ii) any judgment, decree or order applicable to either
of the Purchasers or the Company. Neither the execution and delivery of this
Agreement nor the performance by the Purchasers of their obligations hereunder
will violate any provision of law applicable to the Purchasers.
SECTION 3.3. Consents and Approvals. No filing or registration with, no
notice to and no permit, authorization, consent or approval of any third party
or any public or governmental body or authority is necessary for the
consummation by the Purchasers of the transactions contemplated herein.
SECTION 3.4. Ownership of the Leak-X Shares, Promissory Notes and Option
Agreements. The Purchasers own and hold the Leak-X Shares, the Promissory
Notes and the Option Agreements free and clear of all Encumbrances and are
hereby canceling same in accordance with this Agreement.
SECTION 3.5. Purchase of the Company Shares and Operations of the
Company.
(a) Purchasers have had responsibility for the management of the
Company's affairs since September 29, 1995, when the Seller acquired the
Company's predecessor ("Old GRS") from the Purchasers in accordance with the
Agreement and Plan of Merger. Purchasers were the sole stockholders,
directors and officers of Old GRS and were responsible for its management. On
the basis of their management of Old GRS and the Company, the Purchasers have
sufficient information with respect to the business and prospects of the
Company to make an informed decision in connection with the purchase of the
Company Shares. The Purchasers have reviewed the merits and risks of the
purchase of the Company Shares with tax and legal advisors to the extent
deemed advisable by the Purchasers.
(b) Purchasers hereby acknowledge that: (i) no officer,
director or representative of Seller, including Seller's Chief Financial
Officer who prepares the Company's financial statements, serves or has served
in an executive or managerial capacity for the Company since the Seller's
acquisition of the Company's predecessor on September 29, 1995, (ii) Seller's
knowledge with respect to the business, financial condition, operations or
prospects of the Company is confined exclusively to actual knowledge received
by officers, directors and representatives of the Seller from the Purchasers,
who are officers of the Company and responsible for its management, (iii) with
the exception of an annual audit of the Company's financial statements
conducted by the Seller's independent public accountants and the preparation
by the Seller of the Company's monthly and quarterly financial statements,
Seller has not independently verified financial and other information received
from or concerning the Company, (iv) as of the date of the Closing, the
Purchasers are not relying on the Seller with respect to any information
relating to the business or prospects of the Company, and (v) in connection
with any representations and warranties made hereunder Seller has made no
independent investigation of any factual matter.
(c) In furtherance of the foregoing subsection of this Section
3.5, Purchasers acknowledge that (i) Seller has no knowledge of any material
adverse developments affecting the Company other than knowledge of material
adverse developments of which the Purchasers are aware and (ii) except for the
representations and warranties made in Section 2.1 of this Agreement, Seller
makes and has made no representations or warranties concerning the Company
Shares or the business, financial condition, operations or prospects of the
Company.
SECTION 3.6. Brokers' Fees and Commissions. The Purchasers have not
employed any investment banker, broker, finder or intermediary, and no fee or
other commission is owed by the Purchasers to any third party, in connection
with the transactions contemplated herein.
ARTICLE IV.
COVENANTS
SECTION 4.1. All Reasonable Efforts. Subject to the terms and
conditions herein provided, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done as promptly as practicable, all things necessary, proper and
advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement. If at any time
after the Closing any further action is necessary or desirable to carry out
the purposes of this Agreement, including, without limitation, the execution
of additional instruments, the Purchasers, the Company and the Seller shall
take all such necessary action.
SECTION 4.2. Public Announcements. The Purchasers and the Seller will
consult with each other and will mutually agree upon the content and timing of
any press release or other public statements with respect to the transactions
contemplated by this Agreement and shall not issue any such press release or
make any such public statement prior to such consultation and agreement,
except as may be required by applicable law or based upon the advice of
counsel that such disclosure would be prudent under applicable securities
laws.
SECTION 4.3. Financial Statements. For purposes of the preparation of
the financial statements of the Seller and the Company, the Purchasers and the
Sellers hereby agree that the transactions effectuated by this Agreement shall
be deemed to have occurred as of August 31, 1998. Accordingly, the Purchasers
and the Seller agree that the Company's results of operations between
September 1, 1998 and the date hereof shall be excluded from the consolidated
financial statements of the Seller.
SECTION 4.4. Retention of Records. To the extent that the Seller does
not retain copies of the Company's financial and business records from the
period from September 29, 1995 through the date hereof, the Company and the
Purchasers agree that the Company shall make such records available for
inspection by the Seller, its respective officers, attorneys, accountants and
/or other authorized representatives, during normal business hours upon
reasonable notice, for a period of three years commencing on the date hereof.
In accordance with the preceding sentence and in furtherance of Section 4.1,
the Purchasers and the Company shall make all necessary records available to
Seller and shall assist and cooperate with the Seller in connection with the
Seller's preparation of financial statements required by the Seller to fulfill
its reporting obligations to the Securities and Exchange Commission ("SEC").
SECTION 4.5. Insurance. Effective upon the Closing, the Purchasers
agree that the Company shall bear exclusive responsibility for obtaining all
forms of insurance coverage that the Purchasers and the Company may deem
necessary for the operation of the Company's business. The Purchasers further
agree that, effective upon the Closing, the Seller shall have no further
responsibility to provide any form of insurance coverage to the Company or
its employees, unless required to do so by law.
SECTION 4.6. Confidentiality. Following the Closing, the Seller agrees
to use its best efforts to hold information in its possession with respect to
the Company in confidence and shall use its best efforts to prevent the
disclosure of such information to third parties except as may be required by
law. The foregoing notwithstanding, the Purchasers and the Company
acknowledge and agree that the Seller may disclose any information with
respect to the Company and the Purchasers that the Seller deems necessary in
order to fulfill the Seller's reporting obligations to the SEC.
SECTION 4.7 Non-Competition. For a period of two years following the
date of the Closing, Seller agrees not to produce or sell products currently
sold by the Company, provided, however, the Seller or Lexicon may continue to
offer and sell products which are substantially similar to those currently
sold by the Company if the Seller or Lexicon has offered or sold such products
during the three years prior to the date of the Closing. For a period of two
years following the date of the Closing, the Purchasers and the Company agree
not to offer or sell, directly or indirectly, any services or products which
have been provided by the Seller or Lexicon during the three years prior to
the date of the Closing, provided, however, the Purchasers or the Company may
continue to offer and sell any services or products which have been provided
by the Company during the three years prior to the date of the Closing.
ARTICLE V.
SURVIVAL AND INDEMNIFICATION
SECTION 5.1. Survival. All representations, warranties, covenants and
agreements contained in this Agreement, and in any certificate, schedule,
document or other writing delivered pursuant hereto or in connection with the
transactions contemplated herein shall be in all cases deemed to have been
relied upon by the parties hereto, and shall survive the Closing; provided
that any such representations, warranties, covenants and agreements shall be
fully effective and enforceable only for a period of one year after the
Closing, and shall thereafter be of no further force or effect, except that
the representations and warranties set forth in Section 2.1 , Section 3.4 and
Section 3.5 shall survive indefinitely. The representations, warranties,
covenants and agreements contained in this Agreement or any certificate,
schedule, document or other writing delivered pursuant hereto shall not be
affected by any investigation, verification or examination by any party hereto
or by any person acting on behalf of any such party.
SECTION 5.2. Indemnification of the Purchasers. From and after the
Closing, the Seller agrees to indemnify, defend and save the Purchasers and
their successors and assigns or heirs and personal representatives, as the
case may be (each a "Purchaser Indemnified Party"), forever harmless from and
against, and to promptly pay to a Purchaser Indemnified Party or reimburse a
Purchaser Indemnified Party for any and all losses, damages, expenses (including
, without limitation, court costs, amounts paid in settlement, judgments,
reasonable attorneys' fees or other expenses for investigating and defending,
including, without limitation, those arising out of the enforcement of this
Agreement), suits, actions, claims, deficiencies, liabilities or obligations
(collectively, the "Losses") sustained or incurred by such Purchaser
Indemnified Party relating to, caused by or resulting from (i) any
misrepresentation or breach of warranty, or failure to fulfill or satisfy any
covenant or agreement made by the Seller contained herein or in any
certificate, schedule, document or other writing delivered by the Seller
pursuant hereto or any covenant or agreement made by the Seller herein or in
any certificate, schedule, document or other writing delivered by the Seller
pursuant hereto or (ii) from service by either of the Purchasers as directors
of the Seller from September 29, 1995 until July 22, 1998, provided that any
such reimbursement for Losses related to service as directors of the Seller
shall be limited to amounts recovered from the Seller's directors and officers
liability insurance carrier.
SECTION 5.3. Indemnification of the Seller. From and after the Closing,
the Purchasers and the Company jointly and severally agree to indemnify,
defend and save the Seller and its directors, officers, affiliates, legal
representatives, heirs, successors, assigns, agents and affiliates (each, a
"Seller Indemnified Party") forever harmless from and against, and to promptly
pay to a Seller Indemnified Party or reimburse a Seller Indemnified Party for,
any and all losses, damages, expenses (including, without limitation, court
costs, amounts paid in settlement, judgments, reasonable attorneys' fees or
other expenses for investigating and defending, including, without limitation,
those arising out of the enforcement of this Agreement), suits, actions,
claims, deficiencies, liabilities or obligations (collectively, the "Losses")
sustained or incurred by such Seller Indemnified Party relating to, caused by
or resulting from (i) any misrepresentation or breach of warranty, or failure
to fulfill or satisfy any covenant or agreement made by the Purchasers
contained herein or in any certificate, schedule, document or other writing
delivered by the Purchasers pursuant hereto, or any covenant or agreement made
by the Purchasers in any certificate, schedule, document or other writing
delivered by the Purchasers pursuant hereto, (ii) Seller's ownership of the
Company from September 29, 1995 to the date hereof or (iii) service by any
past or present director, officer or employee of Seller as a director or
officer of the Company or in connection with any other services provided by
such persons to the Company, provided, however, that the Purchasers and the
Company shall not be required to indemnify past or present directors, officers
or employees of the Seller for Losses in connection with services rendered to
Company if such Losses result from conduct which is outside the scope of such
persons' responsibilities for the Company.
SECTION 5.4. Notice of Claims. In the case of a claim for
indemnification under Section 5.2 or Section 5.3 hereof, upon determination by
a Purchaser Indemnified Party or a Seller Indemnified Party, as the case may
be, that it has a claim for indemnification, the Indemnified Party shall
deliver notice of such claim to the Indemnifying Party, setting forth in
reasonable detail the basis of such claim for indemnification (each, an
"Indemnification Notice"). Upon the Indemnification Notice having been given
to the Indemnifying Party, the Indemnifying Party shall have thirty (30) days
in which to notify the Indemnified Party in writing (the "Dispute Notice")
that the amount of the claim for indemnification is in dispute, setting forth
in reasonable detail the basis of such dispute. In the event that a Dispute
Notice is not given to the Indemnified Party within the required thirty (30)
day period the Indemnifying Party shall be obligated to pay to the Indemnified
Party the amount set forth in the Indemnification Notice within sixty (60)
days after the date that the Indemnification Notice had been given to the
Indemnifying Party.
In the event that a Dispute Notice is timely given to an Indemnified
Party, the parties hereto shall have thirty (30) days to resolve any such
dispute. In the event that such dispute is not resolved by such parties
within such period, the parties shall have the right to pursue all available
legal remedies to resolve such dispute.
ARTICLE VI.
MISCELLANEOUS PROVISIONS
SECTION 6.1. Amendment and Modification; Waiver of Compliance. The
Purchasers, on the one hand, or the Seller, on the other hand, will not be
deemed as a consequence of any act, delay, failure, omission, forbearance or
other indulgence granted from time to time by such party: (i) to have waived,
or to be estopped from exercising, any of its rights or remedies under this
Agreement; or (ii) to have modified, changed, amended, terminated, rescinded,
or superseded any of the terms of this Agreement, unless such waiver,
modification, amendment, change, termination, rescission, or suppression is
set forth in writing and signed by the party to be bound thereby. No single
or partial exercise by the Purchasers, on the one hand, or the Seller, on the
other hand, of any right or remedy will preclude any other right or remedy,
and a waiver expressly made in writing on one occasion will be effective only
in that specific instance and only for the precise purpose for which given,
and will not be construed as a consent to or a waiver of any right or remedy
on any future occasion or a waiver of any right or remedy against any other
party.
SECTION 6.2. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, expressed or implied, is intended to confer upon any other person
any rights or remedies of any nature whatsoever under or by reason of this
Agreement.
SECTION 6.3. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given upon the earlier to occur of
delivery thereof if by hand or upon receipt if sent by mail (registered or
certified mail, postage prepaid, return receipt requested) or on the second
next business day after deposit if sent by a recognized overnight delivery
service or upon transmission if sent by telecopy or facsimile transmission (in
each case with receipt verified) as follows:
(a) If to the Purchasers:
Groundwater Recovery Systems, Inc.
299 B National Road
Exton, Pennsylvania 19341
Attention: George A. Nolan
and James G. Warburton
Telephone: (610) 524-2790
Facsimile: (610) 524-2797
With a copy to:
Donald J. Weiss, Esq.
202 South Avenue
Media, Pennsylvania 19063
Telephone: (610) 459-8074
Facsimile: (610) 459-8653
(b) if to the Seller:
Leak-X Environmental Corporation
790 East Market Street
Suite 270
West Chester, Pennsylvania 19382
Attention: Joyce A. Rizzo
Telephone: (610) 344-3380
Facsimile: (610) 344-3388
With a copy to:
David M. Henkoff, Esq.
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, NY 10104
Telephone: (212) 468-8081
Facsimile: (212) 468-7900
; and provided that each of the parties hereto shall promptly notify the other
parties hereto of any change of address, which address shall become such
party's address for the purposes of this Section 6.3.
SECTION 6.4. Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Pennsylvania, without regard to the conflicts-of-laws principles thereof.
Each of the Purchasers and the Seller hereby irrevocably (a) submits to the
jurisdiction of, and agrees that any action, suit or other proceeding shall be
brought in, the courts of, or the Federal Court sitting in, the State of
Pennsylvania for the purpose of any such suit, action or other proceeding
arising out of or based upon this Agreement or the transactions contemplated
herein, (b) waives to the extent not prohibited by applicable law, rule or
regulation, and agrees not to assert, by way of motion, as a defense or
otherwise, in any such action, suit or other proceeding any claim that any
such person is not subject personally to the jurisdiction of the
aforementioned courts, that its respective property is exempt or immune from
attachment or execution, that any such suit, action or other proceeding
brought in one of the aforementioned courts is brought in an inconvenient
forum, that the venue of any such suit, action or other proceeding brought in
one of the aforementioned courts is improper, or that this Agreement, or the
transactions contemplated herein may not be enforced in or by such court, and
(c) consents to service of process in any such suit, action or other
proceeding by registered or certified mail.
SECTION 6.5. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
SECTION 6.6. Headings. The article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement or understanding of the parties hereto and shall not affect in any
way the meaning or interpretation of this Agreement.
SECTION 6.7. Entire Agreement. This Agreement and the other documents
and instruments referred to herein embody the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein or therein. There are no agreements, representations, warranties or
covenants other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the
parties hereto, whether written or oral, express or implied, with respect to
such subject matter herein and therein.
SECTION 6.8. Assignment. This Agreement shall not be assigned without
the written consent of the nonassigning parties hereto except by operation of
law. Subject to the foregoing, this Agreement will be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed on its behalf by its duly authorized officers or
representatives, as the case may be, all as of the day and year first above
written.
/s/ George A. Nolan
George A. Nolan
/s/ James G. Warburton
James G. Warburton
GROUNDWATER RECOVERY SYSTEMS, INC.
By: /s/ George A. Nolan
George A. Nolan
President
LEAK-X ENVIRONMENTAL CORPORATION
By: /s/ Joyce A. Rizzo
Joyce A. Rizzo
Chief Executive Officer
FIRST UNION NATIONAL BANK
PA1202
Portfolio Management
123 South Broad Street
Philadelphia, Pennsylvania 19109-1199
August 25, 1998
Lexicon Environmental Associates, Inc. George A. Nolan
Groundwater Recovery Systems, Inc. 13 Ardmoor Lane
Leak-X Environmental Corporation Chadds Ford, PA 19317
790 East Market Street, Suite 270
West Chester, PA 19382
Attention: Joyce A. Rizzo
James G. Warburton
P.O. Box 33
Unionville, PA 19375
Re: (i) Promissory Note dated July 9, 1998 in the amount of $750,000 (the
"$750,000 Note"), executed and delivered by Lexicon Environmental Associates,
Inc. ("Lexicon"), and Groundwater Recovery Systems, Inc. ("GRS") to First
Union National Bank ("Bank"), (ii) Loan Agreement dated July 9, 1998 by and
between Lexicon, GRS and Bank (the "Loan Agreement"), (iii) Unconditional
Guaranty dated July 9, 1998 given by Leak-X Environmental Corporation
("Leak-X") in Bank's favor with respect to the Obligations of Lexicon and GRS
(the "Guaranty") and (iv) Promissory Note dated November 22, 1993 in the
amount of $200,000 (the "GRS Note"), executed and delivered by GRS to Bank
Dear Gentlemen and Ms. Rizzo:
Reference is made to the $750,000 Note, the Loan Agreement, and Guaranty
and the GRS Note identified above. These documents and all other documents
executed and delivered in connection therewith are collectively referred to
herein as the "Loan Documents". All capitalized terms used but not defined
herein shall have the meanings assigned in the Loan Documents.
The Loan Documents prohibit the sale of Borrower's business without the
prior written consent of Bank. By letter dated August 13, 1998, Leak-X has
advised the Bank of the terms of its proposed sale of all of the outstanding
capital stock of GRS to George A. Nolan and James G. Warburton, and has
requested that the Loan Documents be modified to eliminate GRS as a Borrower
thereunder.
The Bank hereby waives any Default caused by the sale of GRS, and agrees
that all references to GRS as a Borrower in any Loan Document shall be
deleted, subject to the satisfaction in Bank's sole judgment of each of the
following terms and conditions:
1. Bank shall have received true and correct executed copies of any stock
purchase agreements and related documents, along with evidence satisfactory to
Bank that the sale has been consummated and that all necessary regulatory
approvals have been received.
2. Bank shall have received, in available funds, $150,000 to be applied to
the balance of the $750,000 Note.
3. All amounts outstanding under the GRS Note shall have been paid in full,
including, as of August 25, 1998, principal in the amount of $17,779.24,
accrued interest in the amount of $85.93, and a prepayment premium in the
amount of $355.58. Interest shall accrue at the per diem rate of $3.58 until
the Bank receives full and final payment.
4. Bank shall have received satisfactory evidence that all Subordinated Debt
(as defined in those certain Subordination Agreements dated April 14, 1997
between each of George A. Nolan and James G. Warburton and the Bank, Lexicon,
GRS and Leak-X) has been canceled, and that neither Lexicon nor Leak-X shall
have any further responsibility with respect to such Subordinated Debt.
In addition, subject to the satisfaction of the above-referenced terms
and conditions, the Bank agrees that the Financial Covenant contained in the
Guaranty requiring Leak-X to maintain a certain Tangible Net Worth shall be
deleted.
The Bank's waiver is limited to the Default recited above, and neither
this waiver nor the Bank's consent to the sale of GRS or the deletion of the
Tangible Net Worth covenant shall be construed to be a waiver of any
subsequent default under the referenced provisions, or of any defaults under
any other provision of any Loan Document. Except as expressly modified
herein, the terms of the Loan Documents shall continue in full force and
effect.
Lexicon, GRS, and Leak-X, by signature below, represent and warrant that
there exist no Defaults or events of default under the Loan Documents other
than those specifically waived herein.
Please evidence each of the indicated parties' acceptance of the terms of
this consent, waiver and modification by signing and returning to the Bank a
copy of this letter bearing original authorized signature of each of the
parties indicated. This letter may be executed in counterpart copies, each
which when taken together shall constitute one original agreement. The terms
of this consent, waiver and modification shall not become effective until the
Bank receives such copies bearing each of the indicated original signatures,
and all of the terms and conditions set forth herein have been satisfied.
As soon as practicable after this consent, waiver and modification
becomes effective, the Bank shall provide GRS with executed UCC-3 termination
statements to terminate all security interests of record granted to Bank by
GRS. Bank's liens and security interests in all other Collateral not owned by
GRS shall continue in full force and effect and shall not be affected by
anything contained herein.
Very Truly Yours,
FIRST UNION NATIONAL BANK
By: /s/ Suzanne S. Storm
Name: Suzanne S. Storm
Title: Senior Vice President
ACCEPTED AND AGREED TO:
BORROWERS:
LEXICON ENVIRONMENTAL ASSOCIATES, INC.
By: /s/ Joyce A. Rizzo
Name: Joyce A. Rizzo
Title: CEO
Date: 9/30/98
GROUNDWATER RECOVERY SYSTEMS, INC.
By: /s/ George A. Nolan
Name: George A. Nolan
Title: President
Date: 9/30/98
GUARANTOR:
LEAK-X ENVIRONMENTAL CORPORATION
By: /s/ Joyce A. Rizzo
Name: Joyce A. Rizzo
Title: CEO
Date: 9/30/98
SUBORDINATED CREDITORS:
WITNESS:
/s/ Eileen E. Bartoli /s/ George A. Nolan
Name: Eileen E. Bartoli GEORGE A. NOLAN
Date: 9/30/98
/s/ Eileen E. Bartoli /s/ James G. Warburton
Name: Eileen E. Bartoli JAMES G. WARBURTON
Date: 9/30/98
