SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
(Amendment No. ___)
ATLAS ENVIRONMENTAL, INC.
(Name of Issuer)
COMMON STOCK, $.001 PAR VALUE PER SHARE
(Title of Class of Securities)
049311103
(CUSIP Number)
John G. Igoe, Esq.
Edwards & Angell
250 Royal Palm Way
Palm Beach, FL 33480
(561) 833-7700
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
APRIL 24, 1998
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
Schedule because of Rule 13d-1(b)(3) or (4), check the following box: [ ].
<PAGE>
CUSIP No. 049311103
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(1) Name of Reporting Person: T. ALEC RIGBY
S.S. or I.R.S. Identification No. of Above Person:
###-##-####
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(2) Check the Appropriate Box if a Member of a Group* (a) [x]
(b) [ ]
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(3) SEC Use Only
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(4) Source of Funds*
PF
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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(6) Citizenship or Place of Organization: CANADA
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Number of Shares Beneficially Owned (7) Sole Voting Power -0-
by Each Reporting Person With
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(8) Shared Voting Power -0-
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(9) Sole Dispositive Power -0-
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(10) Shared Dispositive Power -0-
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person: -0-
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares* []
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(13) Percent of Class Represented by Amount of Row (11): 0%
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(14) Type of Reporting Person*: IN
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<PAGE>
CUSIP No. 049311103
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(1) Name of Reporting Person: JOEL SILVERSTEIN
S.S. or I.R.S. Identification No. of Above Person:
###-##-####
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(2) Check the Appropriate Box if a Member of a Group* (a) [x]
(b) [ ]
- --------------------------------------------------------------------------------
(3) SEC Use Only
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(4) Source of Funds*
PF
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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(6) Citizenship or Place of Organization: UNITED STATES
- -------------------------------------- -----------------------------------------
Number of Shares Beneficially Owned (7) Sole Voting Power -0-
by Each Reporting Person With
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(8) Shared Voting Power -0-
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-----------------------------------------
(9) Sole Dispositive Power -0-
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-----------------------------------------
(10) Shared Dispositive Power -0-
- --------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person: -0-
- --------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares* []
- --------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount of Row (11): 0%
- --------------------------------------------------------------------------------
(14) Type of Reporting Person*: IN
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<PAGE>
CUSIP No. 049311103
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(1) Name of Reporting Person: DAVID THOMAS
S.S. or I.R.S. Identification No. of Above Person:
###-##-####
- --------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group* (a) [x]
(b [ ]
- --------------------------------------------------------------------------------
(3) SEC Use Only
- --------------------------------------------------------------------------------
(4) Source of Funds*
PF
- --------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- --------------------------------------------------------------------------------
(6) Citizenship or Place of Organization: UNITED STATES
- -------------------------------------- -----------------------------------------
Number of Shares Beneficially Owned (7) Sole Voting Power -0-
by Each Reporting Person With
-----------------------------------------
-----------------------------------------
(8) Shared Voting Power -0-
-----------------------------------------
-----------------------------------------
(9) Sole Dispositive Power -0-
-----------------------------------------
-----------------------------------------
(10) Shared Dispositive Power -0-
- --------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person: -0-
- --------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*[]
- --------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount of Row (11): 0%
- --------------------------------------------------------------------------------
(14) Type of Reporting Person*: IN
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<PAGE>
ITEM 1. SECURITY AND ISSUER.
The class of equity securities to which this Schedule 13D relates is the
common stock, $.001 par value ("Atlas Common Stock"), of Atlas Environmental,
Inc., a Colorado corporation ("Atlas"). The address of the principal executive
offices of Atlas is 150 South Pine Island Road, Plantation, Florida 33324.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(c), (f) This Schedule 13D is filed by T. Alec Rigby, Joel Silverstein
and David Thomas, hereinafter referred to as "Filing Persons".
Mr. Rigby's business address is c/o Atlas, 150 South Pine Island Road,
Plantation, Florida 33324. Mr. Rigby's principal occupation is that of President
and a member of the Board of Directors of Atlas, which is located at the
above-stated address. Atlas is an environmental remediation and waste management
company. Mr. Rigby is a Canadian citizen.
Mr. Silverstein's business address is 4400 North Federal Highway, Suite
210-17, Boca Raton, Florida 33431. Mr. Silverstein's principal occupation,
conducted at that address, is that of a private investor. Mr. Silverstein is a
United States citizen.
Mr. Thomas' business address is 1130 Croom Rital Road, Brooksville, Florida
34602. Mr. Thomas' principal occupation is that of Chief Executive Officer and
owner of NationMark, Inc., a petroleum construction and environmental
remediation company. NationMark, Inc. is located at the above-stated address.
Mr. Thomas is a United States citizen.
(d)-(e) During the last five years, none of the Filing Persons has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), nor has he been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction where, as a result of such
proceeding, a judgment, decree or final order was entered enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
This Schedule 13D is filed to reflect the sale by the Filing Persons of
their shares of Atlas Common Stock and, with respect to Rigby, the sale of his
shares of Atlas Series A Preferred Stock, $1.00 par value per share ("Atlas
Preferred Stock"). Each of the Filing Persons acquired his shares of Atlas
Capital Stock as result of a business combinations whereby Atlas acquired
various companies in which the Filing Persons held interests. Such interests
were acquired by each Filing Person with his personal funds.
ITEM 4. PURPOSE OF TRANSACTION.
(a) Prior to April 24, 1998 and the consummation of the Share Exchange
Agreements described below, (i) Mr. Rigby was the beneficial owner of 1,880,550
shares, or approximately 41%, of the issued and outstanding Atlas Common Stock,
and the beneficial owner of 7,616,000 shares, or 100%, of the issued and
outstanding Atlas Preferred Stock, (ii) Mr. Silverstein was the beneficial owner
of 250,700 shares, or approximately 5.5% of the issued and outstanding Atlas
Common Stock, and (iii) Mr. Thomas was the beneficial owner of 250,000 shares,
or approximately 5.5%, of the issued and outstanding Atlas Common Stock.
Each Filing Person entered into a Share Exchange Agreement with
WasteMasters, Inc., a Maryland corporation ("WasteMasters"), dated as of April
23, 1998. The transactions were closed on April 23, 1998 with final delivery of
stock certificates of WasteMasters on April 24, 1998. WasteMasters is a
publicly-held waste management company with an address at 1230 Peachtree Street
N.E., Suite 2545, Atlanta, Georgia 30309. Pursuant to the terms of a Share
Exchange Agreement dated as of April 23, 1998 between Mr. Rigby and
WasteMasters, attached hereto as Exhibit 99.1, Mr. Rigby exchanged 1,880,550
shares of Atlas Common Stock for 200,000 shares of WasteMasters common stock,
$.01 par value ("WasteMasters Common Stock"). Pursuant to the terms of a Share
Exchange Agreement dated as of April 23, 1998 between Mr. Silverstein and
WasteMasters, attached hereto as Exhibit 99.3, Mr. Silverstein exchanged 250,700
shares of Atlas Common Stock for 71,333 shares of WasteMasters Common Stock.
Pursuant to the terms of a Share Exchange Agreement dated April 23, 1998 between
Mr. Thomas and WasteMasters, attached hereto as Exhibit 99.4, Mr. Thomas
exchanged 250,000 shares of Atlas Common Stock for 71,258 shares of WasteMasters
Common Stock. The parties to the respective Share Exchange Agreements assigned a
value of $3.00 per share to the WasteMasters Common Stock for purposes of these
transactions, a premium above the then current trading price for publicly traded
stock of WasteMasters. The closing price of WasteMasters Common Stock (NASDAQ
SmallCap) on April 23, 1998 was $2.16.
Pursuant to the terms of a Share Exchange Agreement, dated April 24, 1998
between Mr. Rigby and Waste Ventures Corporation, attached hereto as Exhibit
99.2, Mr. Rigby exchanged 7,616,000 shares of Atlas Preferred Stock for
1,385,334 shares of WasteMasters Common Stock, a two year Warrant for the
purchase of 500,000 shares of WasteMasters Common Stock at $5.00 per share
(Exhibit 99.5) and a two year Warrant for the purchase of 500,000 shares of
WasteMasters Common Stock at $15.00 per share (Exhibit 99.6). Mr. Rigby believes
that Waste Ventures Corporation is not an affiliate of WasteMasters.
The WasteMasters Common Stock issued to the Filing Persons pursuant to the
Share Exchange Agreements is not registered under the Securities Act of 1933, as
amended (the "Securities Act"), and may not be transferred, sold or otherwise
disposed of by any Filing Person except pursuant to an effective registration
statement under the Securities Act, or an exemption from the registration
requirements of the Securities Act.
The purpose of the transaction was for WasteMasters to acquire control of
Atlas. As a result of the closing of these transactions, the Filing Persons
transferred to WasteMasters approximately 51% of the issued and outstanding
shares of voting common stock of Atlas. The Preferred Stock of Atlas trasferred
by Mr. Rigby was non-voting stock.
Under the terms of his Share Exchange Agreements, Mr. Rigby has agreed that
he will not, without the consent of WasteMasters, transfer, sell or otherwise
dispose of any shares of WasteMasters Common Stock issued to him thereunder
until after the expiration of twelve (12) months following the date of the Share
Exchange Agreements; and thereafter Mr. Rigby has agreed to sell no more than a
specified maximum number of shares of WasteMasters Common Stock per month. Any
public sales by Mr. Rigby must also comply with Rule 144 promulgated under the
Securities Act of 1933, as amended. In the event that Mr. Rigby wants to sell
more than the specified maximum amount per month, WasteMasters or its designee
shall have a right of first refusal to purchase the number of shares of
WasteMasters Common Stock in excess of such maximum amount at a discount of 6%
of the bid price on the date such right of first refusal is extended.
Sub-items (b)-(j) are not applicable.
ITEM 5. INTEREST IN SECURITIES OF ATLAS.
(a)-(b) Following the disposition by the Filing Persons of their shares of
Atlas Common Stock and Atlas Preferred Stock, respectively, to WasteMasters
under the terms of the Share Exchange Agreements each Filing Person has sole or
shared power to vote or direct the vote of no shares of Atlas Common Stock or
any other equity security issued by Atlas, and sole or shared power to dispose
or direct the disposition of no shares of Atlas Common Stock or any other equity
security issued by Atlas.
(c) Except as set forth in Item 4 with respect to the transactions
consummated under the Share Exchange Agreements, no transactions in Atlas Common
Stock were effected by the Filing Persons during the past sixty days.
(d) Not applicable.
(e) Each of the Filing Persons ceased to be the beneficial owner of more
than 5% of the issued and outstanding Atlas Common Stock on April 24, 1998.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF ATLAS.
Other than as set forth in response to Items 3, 4 and 5 above, there are no
contracts, arrangements, understandings or relationships (legal or otherwise)
among the persons named in Item 2 above or between such persons and any other
person with respect to the securities of Atlas, including but not limited to,
transfer or voting of any of the securities, finder's fees, joint ventures, loan
or option arrangements, puts or calls, guarantees or profits, divisions of
profits or loss, or the giving or withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 99.1 Share Exchange Agreement, dated as of April 23, 1998, between T.
Alec Rigby and WasteMasters, with respect to Mr. Rigby's Atlas
Common Stock.
Exhibit 99.2 Share Exchange Agreement, dated as of April 23, 1998, between T.
Alec Rigby and Waste Ventures Corporation, with respect to Mr.
Rigby's Atlas Preferred Stock.
Exhibit 99.3 Share Exchange Agreement, dated as of April 23, 1998, between
Joel Silverstein and WasteMasters with respect to Mr.
Silverstein's Atlas Common Stock.
Exhibit 99.4 Share Exchange Agreement, dated as of April 23, 1998, between
David Thomas and WasteMasters with respect to Mr. Thomas' Atlas
Common Stock.
Exhibit 99.5 Warrant, dated April 23, 1998, issued to T. Alec Rigby for the
purchase of 500,000 shares of WasteMasters Common Stock at $5.00
per share.
Exhibit 99.6 Warrant, dated April 23, 1998, issued to T. Alec Rigby for the
purchase of 500,000 shares of WasteMasters Common Stock at $15.00
per share.
Exhibit 99.7 Joint Filing Agreement among T. Alec Rigby, Joel Silverstein and
David Thomas dated May 4, 1998.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
DATE: MAY 4, 1998
/S/ T. ALEC RIGBY
-------------------------------
T. Alec Rigby
Date: MAY 4, 1998
/S/ JOEL SILVERSTEIN
-------------------------------
Joel Silverstein
DATE: MAY 4, 1998
/S/ DAVID THOMAS
-------------------------------
David Thomas
Exhibit 99.1
SHARE EXCHANGE AGREEMENT
This SHARE EXCHANGE AGREEMENT, is dated as of April 23, 1998, among
WASTEMASTERS, INC., a Maryland corporation ("WasteMasters") and T. ALEC RIGBY,
an individual (the "Stockholder").
W I T N E S S E T H :
WHEREAS, the Stockholder is the record and beneficial owner of 1,880,550
shares of common stock, $0.001 par value of Atlas Environmental, Inc., (the
"Company") a Colorado corporation (the "Company Common Stock" or the "Company
Shares"), which constitutes 40.95% of the issued and outstanding Company Common
Stock;
WHEREAS, the Stockholder desires to exchange his Company Shares for shares
of common stock, par value $.01 per share, of WasteMasters, Inc. ("WasteMasters
Common Stock") and WasteMasters desires to acquire all of the Company Shares
owned by Stockholder through such exchange, each on the terms and subject to the
conditions contained herein (the "Acquisition"); and
WHEREAS, the Stockholder has determined that the Acquisition is in the best
interests of the Stockholder, and has approved this Agreement and the
transactions contemplated hereby;
WHEREAS, the Board of Directors of WasteMasters has determined that the
Acquisition is in the best interests of WasteMasters and has approved this
Agreement and the transactions contemplated hereby;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto agree as follows:
ARTICLE I
EXCHANGE OF COMPANY SHARES
Section 1.1 EXCHANGE OF COMPANY SHARES. Upon the terms and subject to the
conditions of this Agreement, at the Closing (as hereinafter defined), the
Stockholder will convey, assign, transfer and deliver to WasteMasters, and
WasteMasters will acquire and accept from the Stockholder, all right, title and
interest in and to the Company Shares, free and clear of any lien, encumbrance,
security interest, mortgage, pledge, charge, claim, option, right of first
refusal or call, or restriction of any kind (collectively, "Liens") other than
those, if any, created by WasteMasters.
Section 1.2 CONVEYANCE. Such conveyance, assignment, transfer and delivery
shall be effected by delivery by the Stockholder to WasteMasters of stock
certificates representing the Company Shares, duly endorsed or accompanied by
stock powers duly executed in blank with appropriate transfer stamps, if any,
affixed, and any other documents that are necessary to transfer title to the
Company Shares to WasteMasters, free and clear of any and all Liens, other than
those, if any, created by WasteMasters.
Section 1.3 CONSIDERATION.
Upon the terms and subject to the conditions of this Agreement,
WasteMasters will deliver or cause to be delivered 200,000 duly authorized,
validly issued, fully paid and nonassessable Rule 144 restricted common stock
shares of WasteMasters, Inc. valued at $3.00 per share in exchange for shares of
Company Common Stock conveyed, assigned, transferred and delivered to
WasteMasters by such Stockholder pursuant to Section 1.1 hereof (the "Common
Stock Per Share Consideration"). The aggregate Common Stock Per Share
Consideration payable to the Stockholder pursuant to this Agreement is
hereinafter referred to as the "Aggregate Consideration."
Section 1.4 ADJUSTMENT OF THE AGGREGATE CONSIDERATION. If between the date
of this Agreement and the Closing Date (as hereinafter defined), the outstanding
shares of Company Common Stock, or WasteMasters Common Stock shall have been
changed into a different number of shares or a different class, by reason of any
stock dividend, subdivision, reclassification, recapitalization, split,
combination, exchange of shares or similar transaction, the Common Stock Per
Share Consideration shall be correspondingly adjusted to reflect such stock
dividend, subdivision, reclassification, recapitalization, split, combination,
exchange of shares or similar transaction. Nothing stated in the immediately
preceding sentence shall be construed as providing the holders of Company Shares
any preemptive or antidilutive rights.
Section 1.5 TRANSFER RESTRICTIONS; LEGEND.
(a) The shares of WasteMasters Common Stock to be issued to the Stockholder
pursuant to Section 1.3 hereof will not be registered under the Securities Act
of 1933, as amended (the "Securities Act"), on the Closing Date and may not be
transferred, sold or otherwise disposed of by any Stockholder except pursuant to
an effective registration statement under the Securities Act or in accordance
with an exemption from the registration requirements of the Securities Act.
Except as otherwise agreed between the WasteMasters and the Stockholder, the
Stockholder agrees that it will not transfer, sell or otherwise dispose of any
of the shares of WasteMasters Common Stock received or reduce its interest in or
relating to such shares of WasteMasters Common Stock until after the expiration
of twelve (12) months following the Closing; and thereafter the Stockholder
agrees to sell no more than 10,000 shares of WasteMasters Common Stock per month
and all in accordance with SEC Rule 144. In the event that Stockholder desires
to sell more than the specified lock-up maximums of 10,000 per month, it shall
grant a first right of refusal to WasteMasters or its designee who shall have
the right, but not the obligation to purchase such shares of WasteMasters Common
Stock in excess of such maximums at a discount of 6% of the bid price on the
date such right is extended. After receipt of written notice from Stockholder
that he desires to sell more than the specified monthly lock-up maximum of
10,000 shares, WasteMasters or its designee shall have two (2) business days
after receipt of such notice to exercise such first right of refusal. The
Stockholder may sell the excess shares not purchased by WasteMasters during the
next 20 business days.
(b) Each certificate representing shares of WasteMasters Common Stock
issued by WasteMasters and delivered by WasteMasters to the Stockholder in
accordance with Section 1.3 shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS THAT
TERM IS DEFINED IN RULE 144 UNDER THE ACT, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER THE ACT, AS AMENDED, AND IN COMPLIANCE WITH APPLICABLE
SECURITIES LAWS OF ANY STATE WITH RESPECT THERETO OR IN ACCORDANCE WITH AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER THAT AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND ALSO MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF BY THE HOLDER WITHOUT COMPLIANCE WITH THE
APPLICABLE SECURITIES AND EXCHANGE COMMISSION RULES AND REGULATIONS.
WasteMasters agrees to remove such legend (or any relevant portion thereof), by
prompt delivery of substitute certificates upon the request of the holder if at
such time such legend (or portion thereof) is no longer required for purposes
of, or applicable pursuant to, the prior provisions of this Section 1.5.
ARTICLE II
CLOSING
Section 2.1 CLOSING. Subject to the satisfaction or waiver of all the
conditions to closing contained in Article VIII hereof, the closing (the
"Closing") of the Acquisition will take place at 10:00 a.m. on the first
business day after satisfaction or waiver of the conditions to the Closing
contained in Article VIII hereof, at the offices of WasteMasters, unless another
date, time or place is agreed to by the parties hereto. The date and time at
which the Closing occurs is referred to herein as the "Closing Date." In no
event will the Closing Date be later than April 23, 1998.
Section 2.2 DELIVERY OF THE SHARES. At the Closing, the Stockholder will
deliver to WasteMasters (a) certificates evidencing the shares of Company Common
Stock owned by such Stockholder ("Common Stock Certificates" or "Certificates"),
each duly endorsed or accompanied by stock powers duly executed in blank with
appropriate transfer stamps, if any, affixed, and any other documents that are
reasonably necessary to transfer title to such shares.
Section 2.3 DELIVERY OF COMMON STOCK. At the Closing, WasteMasters will (a)
issue or cause to be issued to the Stockholder in exchange for Common Stock
Certificates, shares of WasteMasters Common Stock in an amount equal to the
Common Stock Per Share Consideration and (b) deliver certificates representing
such shares of WasteMasters Common Stock as follows: WasteMasters will deliver
to the Stockholder one or more certificates representing the shares of
WasteMasters Common Stock issuable to such Stockholder pursuant to this
Agreement. The shares of WasteMasters Common Stock issued upon the surrender for
exchange of shares of Company Common Stock in accordance with the terms hereof
shall be deemed to have been issued in full satisfaction of all rights
pertaining to such shares of Company Common Stock.
Section 2.4 LOST CERTIFICATES. In the event that any Certificate has been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by WasteMasters, the posting by such person of a bond in such
reasonable amount as WasteMasters may direct as indemnity against any claim that
may be made against it with respect to such Certificate, WasteMasters shall, in
respect of such lost, stolen or destroyed Certificate, issue or cause to be
issued the number of shares of WasteMasters Common Stock deliverable in respect
thereof pursuant to this Agreement.
ARTICLE III
INTENTIONALLY DELETED.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder represents and warrants as to itself to
WasteMasters as follows:
Section 4.1 ORGANIZATION. The Stockholder is an individual and has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as it is now being conducted.
Section 4.2 AUTHORITY. The execution, delivery and performance of this
Agreement by the Stockholder and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Stockholder, and no other proceedings on the part of the Stockholder
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Stockholder and, assuming that this Agreement constitutes a valid and binding
obligation of the other parties hereto, constitutes a valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law). The Stockholder has approved
the transactions contemplated hereby and has determined that such transactions
are in the best interests of the Company and such Stockholder.
Section 4.3 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings,
permits, authorizations, consents and approvals as may be required, the
execution, delivery or performance of this Agreement by each Stockholder, the
consummation by each Stockholder of the transactions contemplated hereby and
compliance by each Stockholder with any of the provisions hereof shall not (a)
conflict with or result in any breach of any provisions of the organizational
documents of such Stockholder, (b) require any filing by such Stockholder or any
of its Subsidiaries with, or any permit, authorization, consent or approval to
be obtained by such Stockholder of any Governmental Entity, (c) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time, or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, any of the terms, conditions or provisions of any
Contract to which such Stockholder is a party or by which any of them or any of
their properties or assets may be bound or affected or (d) violate any order,
writ, injunction, decree, statute, ordinance, rule or regulation applicable to
such Stockholder, except, in the case of clause (c) or (d), for violations,
breaches or defaults which would not have a material adverse effect on the
ability of such Stockholder to consummate the transactions contemplated hereby.
Section 4.4 TITLE TO SHARES. Section 4.4 of the Stockholder Disclosure
Schedule sets forth the number of outstanding shares of Company Common Stock
owned by the Stockholder and the date of Stockholder's acquisition of same, and
the Stockholder (i) owns such shares free and clear of any Liens and (ii) has
full power, right and authority to exchange such shares pursuant to the terms of
this Agreement.
Section 4.5 INVESTMENT INTENTION. The Stockholder is acquiring the shares
of WasteMasters Common Stock issuable to such Stockholder pursuant to the terms
of this Agreement for investment solely for such Stockholder's own account and
not with a view to or for resale in connection with the distribution or other
disposition thereof except for such which are permitted hereunder and under the
Securities Act.
Section 4.6 FEDERAL SECURITIES LAW MATTERS. The Stockholder has been
advised that (a) neither the sale nor the offer of the shares of WasteMasters
Common Stock issuable pursuant to the terms of this Agreement has been
registered under the Securities Act, (b) such shares must be held and the
Stockholder must continue to bear the economic risk of the investment in the
shares of WasteMasters Common Stock issuable to such Stockholder pursuant to the
terms of this Agreement until such shares are subsequently registered under the
Securities Act or an exemption from registration is available, (c) a restrictive
legend in the form set forth in Section 1.5(c) hereof shall be placed on the
certificates representing the shares of WasteMasters Common Stock issuable
pursuant to the terms of this Agreement and (d) appropriate stop-transfer
instructions shall be issued by WasteMasters, Inc. to its stock transfer agent
with respect to such shares; provided that such legend shall be removed and such
stop-transfer instructions lifted when and as contemplated by Section 1.5(c)
hereof.
Section 4.7 INTENTIONALLY DELETED.
Section 4.8 ACCESS TO INFORMATION. (a) The Stockholder understands and is
aware of all the risk factors related to an investment in the shares of
WasteMasters Common Stock issuable pursuant to the terms of this Agreement, (b)
the Stockholder or its attorneys or advisors have carefully reviewed this
Agreement and have been granted the opportunity to ask questions of, and receive
answers from, representatives of WasteMasters concerning the terms and
conditions of the investment in the shares of WasteMasters Common Stock issuable
pursuant to the terms of this Agreement and to obtain any additional information
which such Stockholder deems necessary, (c) the Stockholder's knowledge and
experience in financial and business matters is such that the Stockholder is
capable of evaluating the risks of the investment in the shares of WasteMasters
Common Stock issuable pursuant to the terms of this Agreement and (d) in making
its decision to approve the transactions contemplated hereby and to exchange its
shares of Company Common Stock for shares of WasteMasters Common Stock pursuant
to this Agreement, the Stockholder has relied upon the independent investigation
made by such Stockholder and, to the extent believed by the Stockholder to be
appropriate, such Stockholder's representatives, including such Stockholder's
own professional, tax and other advisors.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF WASTEMASTERS
WasteMasters represents and warrants to the Stockholder as follows:
Section 5.1 ORGANIZATION. WasteMasters is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and corporate authority to
own, lease and operate its properties and to carry on its business as now being
conducted, except where the failure to be so organized, existing and in good
standing or to have such power and authority would not have a WasteMasters
Material Adverse Effect (as hereinafter defined). As used in this Agreement, any
reference to any event, change or effect having a "WasteMasters Material Adverse
Effect" means such event, change or effect is, or is likely to be, materially
adverse to (a) the business, properties, financial condition or results of
operations of WasteMasters and its Subsidiaries, taken as a whole or (b) the
ability of WasteMasters to consummate the transactions contemplated hereby.
Section 5.2 INTENTIONALLY DELETED.
Section 5.3 AUTHORITY. WasteMasters has the requisite corporate power and
corporate authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by WasteMasters and the consummation by WasteMasters of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of WasteMasters and no other corporate proceedings
on the part of WasteMasters are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by WasteMasters and, assuming that this Agreement
constitutes a valid and binding obligation of the other parties hereto,
constitutes a valid and binding obligation of WasteMasters, enforceable against
WasteMasters in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law).
Section 5.4 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings,
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Securities Act, the Exchange Act, Nasdaq,
and filings under state securities or "blue sky" laws, the execution, delivery
or performance of this Agreement by WasteMasters, the consummation by
WasteMasters of the transactions contemplated hereby and compliance by
WasteMasters with any of the provisions hereof shall not (a) conflict with or
result in any breach of any provision of the organizational documents of
WasteMasters, (b) require any filing by WasteMasters or any of its Subsidiaries
with, or any permit, authorization, consent or approval to be obtained by
WasteMasters or any of its Subsidiaries of, any Governmental Entity (except
where the failure to obtain such permits, authorizations, consents or approvals
or to make such filings would not have a WasteMasters Material Adverse Effect),
(c) result in a violation or breach of, or constitute (with or without due
notice or lapse of time, or both) a default (or give rise to any right of
termination, cancellation or acceleration) under, any of the terms, conditions
or provisions of any Contract to which WasteMasters or any of its Subsidiaries
is a party or by which any of them or any of their properties or assets may be
bound or affected or (d) violate any order, writ, injunction, decree, statute,
ordinance, rule or regulation applicable to WasteMasters or any of its
Subsidiaries, except, in the case of clause (c) or (d), for violations,
breaches, defaults, terminations, cancellations or accelerations which would not
have a WasteMasters Material Adverse Effect.
Section 5.5 INTENTIONALLY DELETED.
Section 5.6 BROKERS OR FINDERS. Neither WasteMasters nor any of its
Subsidiaries has any liability to any agent, broker, investment banker,
financial advisor or other firm or person for any broker's or finder's fee or
any other commission or similar fee in connection with any of the transactions
contemplated by this Agreement.
Section 5.7 TAKEOVER STATUTES. To the knowledge of WasteMasters, no
Takeover Statute is applicable to the transactions contemplated by this
Agreement.
Section 5.8 INTENTIONALLY DELETED.
Section 5.9 LEGAL PROCEEDINGS. Except as disclosed prior to the date
hereof, and in public filings; (i) no litigation, investigation of which
WasteMasters has knowledge or proceeding of or before any arbitrator or
Governmental Entity has been commenced and is pending or, to the knowledge of
WasteMasters, is threatened by or against WasteMasters or any of its
Subsidiaries or against any of their respective properties or assets which would
have, individually or in the aggregate, a WasteMasters Material Adverse Effect;
and (ii) there are no judgments, injunctions, decrees, orders or other
determinations of an arbitrator or Governmental Entity applicable to the
WasteMasters or any of its Subsidiaries or any of their respective properties or
assets which would have, individually or in the aggregate, a WasteMasters
Material Adverse Effect.
Section 5.10 COMPLIANCE WITH LAWS. Except as disclosed prior to the date
hereof, and in public filings, each of WasteMasters and its Subsidiaries is in
compliance in all respects with all laws, statutes, orders, rules, regulations,
ordinances and judgments of any Governmental Entity, holds all Permits that are
necessary to the conduct of its business or the ownership of its properties, and
is in compliance with each such Permit, except where the failure to so comply
with an applicable law or hold such Permits would not have a WasteMasters
Material Adverse Effect.
Section 5.11 INVESTMENT INTENTION. WasteMasters is acquiring the Company
Shares pursuant to the terms of this Agreement for investment solely for
WasteMasters own account and not with a view to or for resale in connection with
the distribution or other disposition thereof except for such which are
permitted hereunder and under the Securities Act.
Section 5.12 FEDERAL SECURITIES LAW MATTERS. WasteMasters has been advised
that (a) neither the sale nor the offer of the Company Shares pursuant to the
terms of this Agreement has been registered under the Securities Act, (b) such
shares must be held and WasteMasters must continue to bear the economic risk of
the investment in the Company Shares pursuant to the terms of this Agreement
until such shares are subsequently registered under the Securities Act or an
exemption from registration is available, (c) a restrictive legend in the form
set forth in Section 1.5(c) hereof shall be placed on the certificates
representing the Company Shares pursuant to the terms of this Agreement and (d)
appropriate stop-transfer instructions shall be issued by the Company to its
stock transfer agent with respect to such shares; provided that such legend
shall be removed and such stop-transfer instructions lifted when and as
contemplated by Section 1.5(c) hereof.
Section 5.13 ACCESS TO INFORMATION. (a) WasteMasters understands and is
aware of all the risk factors related to an investment in the Company Shares
issuable pursuant to the terms of this Agreement, (b) WasteMasters or its
attorneys or advisors have carefully reviewed this Agreement and have been
granted the opportunity to ask questions of, and receive answers from,
representatives of the Company concerning the terms and conditions of the
investment in the Company Shares issuable pursuant to the terms of this
Agreement and to obtain any additional information which WasteMasters deems
necessary, (c) WasteMaster's knowledge and experience in financial and business
matters is such that WasteMaster's is capable of evaluating the risks of the
investment in the Company Shares issuable pursuant to the terms of this
Agreement and (d) in making its decision to approve the transactions
contemplated hereby and to exchange WasteMasters Common Stock for the Company
Shares pursuant to this Agreement, WasteMasters has relied upon the independent
investigation made by WasteMasters and, to the extent believed by WasteMasters
to be appropriate, WasteMaster's representatives, including WasteMaster's own
professional, tax and other advisors.
ARTICLE VI
COVENANTS AND OTHER AGREEMENTS
Section 6.1 INTENTIONALLY DELETED.
Section 6.2 NO SOLICITATION. Unless and until this Agreement is terminated
in accordance with its terms, the Stockholder shall not, directly or indirectly,
solicit or initiate discussions with, enter into negotiations or agreements
with, or furnish any information about the Company that is not publicly
available to, or otherwise assist, facilitate or encourage, any entity, person
or group (other than WasteMasters, an affiliate of WasteMasters or their
authorized representatives) concerning any proposal for a merger, sale of
substantial assets, sale of any shares of capital stock or rights to acquire any
shares of capital stock, recapitalization or other business combination
transaction involving the Company or any of its Subsidiaries (a "Competing
Transaction"). The Stockholder shall instruct the respective officers,
directors, employees, advisors, affiliates, counsel and agents (collectively,
"Representatives") of the Company and its Subsidiaries not to take any action
contrary to the provisions of the previous sentence. The Stockholder shall
notify WasteMasters immediately in writing if the Company becomes aware that any
inquiries or proposals are received by, any information is requested from, or
any negotiations or discussions are sought to be initiated with, the Company or
its Subsidiaries with respect to a Competing Transaction.
Section 6.3 INTENTIONALLY DELETED.
Section 6.4 INTENTIONALLY DELETED.
Section 6.5 NOTIFICATION OF CERTAIN MATTERS. Each of the Stockholder and
WasteMasters shall promptly advise the other party orally and in writing of (i)
any representation or warranty made by it contained in this Agreement that is
qualified as to materiality becoming untrue or inaccurate in any respect or any
such representation or warranty that is not so qualified becoming untrue or
inaccurate in any material respect or (ii) the failure by it to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement or (iii) any event or
change or impending occurrence of any event or change of which it has knowledge
and which has resulted, or which, insofar as can reasonably be foreseen, is
likely to result, in any of the conditions to the transactions contemplated
hereby set forth in Article VIII hereof not being satisfied; provided, however,
that no such notification shall affect the representations, warranties,
covenants or agreements of the parties or the conditions to the obligations of
the parties under this Agreement.
Section 6.6 INTENTIONALLY DELETED.
Section 6.7 REASONABLE EFFORTS.
(a) Subject to the terms and conditions of this Agreement, each of the
parties hereto agrees to use its commercially reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, (i) the preparation and filing of all applicable
forms under applicable laws, (ii) such actions as may be required to be taken
under applicable state securities or "blue sky" laws in connection with the
issuance of shares of WasteMasters Common Stock and contemplated hereby, (iii)
the preparation and filing of all other forms, registrations and notices
required to be filed to consummate the transactions contemplated by this
Agreement and the taking of such actions as are necessary to obtain any
requisite consents, approvals, authorizations or orders of any Governmental
Entity or third party and (iv) the satisfaction of all conditions to the
Closing.
(b) Each party shall promptly consult with the other with respect to and
provide any necessary information not subject to legal privilege with respect to
and provide the other (or its counsel) copies of, all filings made by such party
with any Governmental Entity or any other information supplied by such party to
a Governmental Entity in connection with this Agreement and the transactions
contemplated by this Agreement (except personal information with respect to
officers and directors). Each party hereto shall promptly inform the other of
any material communication from any Governmental Entity regarding any of the
transactions contemplated by this Agreement. If any party or affiliate thereof
receives a request for additional information or documentary material from any
such Governmental Entity with respect to the transactions contemplated by this
Agreement, then such party will endeavor in good faith to make, or cause to be
made, as soon as reasonably practicable and after consultation with the other
party, an appropriate response in compliance with such request.
(c) Notwithstanding the foregoing, nothing in this Agreement shall be
deemed to require WasteMasters to enter into any agreement with any Governmental
Entity or to consent to any order, decree or judgment requiring WasteMasters to
hold separate or divest, or to restrict the dominion or control of WasteMasters
or any of its affiliates over any other business of WasteMasters, its affiliates
or the Company and its Subsidiaries. In addition, no party hereto shall take any
action after the date hereof that could reasonably be expected to materially
delay the obtaining of, or result in not obtaining, any permission, approval or
consent from any Governmental Entity necessary to be obtained prior to the
Closing.
Section 6.8 INTENTIONALLY DELETED.
Section 6.9 INTENTIONALLY DELETED.
Section 6.10 INTENTIONALLY DELETED.
Section 6.11 INTENTIONALLY DELETED.
Section 6.12 INTENTIONALLY DELETED.
Section 6.13 TAKEOVER STATUTES. If any Takeover Statute is or may become
applicable to the transactions contemplated by this Agreement, the Stockholder
shall cause the Company, and WasteMasters and their respective Boards of
Directors shall grant such approvals and take such actions as are necessary so
that the transactions contemplated by this Agreement may be consummated as
promptly as practicable on the terms contemplated thereby and otherwise to act
to eliminate or minimize the effects of any such Takeover Statute on any of the
transactions contemplated by this Agreement.
Section 6.14 CERTAIN ACTIONS. Each of the parties hereto shall not take any
action that would, or that could reasonably be expected to, result in any of the
conditions to their respective obligations to consummate the transactions
contemplated hereby set forth in Article VIII not being satisfied.
Section 6.15 INTENTIONALLY DELETED.
Section 6.16 FURTHER ASSURANCES. In the event that at any time after the
Closing Date any further action is necessary or desirable to carry out the
purposes of this Agreement, the Stockholder and WasteMasters shall take such
necessary action.
Section 6.17 LIMITED SURVIVAL OF WARRANTIES AND REPRESENTATIONS. The
warranties and representations contained in Articles IV and V shall survive the
Closing for a period of 12 months following the date of this Agreement, after
which they shall automatically expire and be of no further force or effect.
Section 6.18 INTENTIONALLY DELETED.
ARTICLE VII
INTENTIONALLY DELETED.
ARTICLE VIII
CONDITIONS
Section 8.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
ACQUISITION. The respective obligation of each party hereto to consummate the
transactions contemplated hereby are subject to the satisfaction or waiver, on
or prior to the Closing Date, of each of the following conditions:
(a) NO INJUNCTIONS OR RESTRAINTS. (i) No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing or
materially restricting the consummation of the transactions contemplated hereby
shall be in effect (each party agreeing to use all reasonable efforts to have
any such order reversed or injunction lifted) and (ii) no action by any
Governmental Entity shall be pending seeking to prevent or materially restrict
the consummation of the transactions contemplated hereby; provided, however,
that the conditions set forth in the preceding clause (ii) shall not be a
condition to WasteMasters' obligations unless WasteMasters has complied in all
material respects with the provisions of Section 6.7 hereof.
(b) REGULATORY APPROVALS. (i) All authorizations, consents, orders or
approvals of those Governmental Entities listed in Section 8.1(c) of the
Stockholder Disclosure Schedule shall have been obtained and (ii) all other
authorizations, consents, orders or approvals of, or declarations or filings
with, or expirations of waiting periods imposed by, any Governmental Entity, the
failure of which to be obtained, made or occurred would have a Company Material
Adverse Effect or a WasteMasters Material Adverse Effect, shall have been
obtained, made or occurred; provided, however, that the condition set forth in
the preceding clause (ii) shall not be a condition to WasteMasters' obligations
unless WasteMasters has complied in all material respects with the provisions of
Section 6.7 hereof. WasteMasters shall have received all state securities or
"blue sky" permits and other authorizations necessary to issue or cause the
issuance of the WasteMasters Common Stock pursuant to this Agreement.
(c) THIRD PARTY CONSENTS. All consents of those third parties listed in
Section 8.1(d) of the Stockholder Disclosure Schedule shall have been obtained
on terms reasonably acceptable to WasteMasters.
Section 8.2 CONDITIONS TO OBLIGATION OF WASTEMASTERS. The obligation of
WasteMasters to effect the transactions contemplated hereby are also subject to
the satisfaction, on or prior to the Closing Date, of the following additional
conditions unless waived by WasteMasters:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Stockholder set forth in this Agreement (i) that are qualified as to
materiality shall be true, complete and correct in all respects and (ii) that
are not so qualified shall be true, complete and correct in all material
respects, in each case as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date (except that the accuracy of
the representations and warranties that by their terms speak as of the date of
this Agreement or some other date shall be determined as of such date) and, in
each case except for changes expressly permitted by this Agreement.
(b) PERFORMANCE OF OBLIGATIONS OF THE STOCKHOLDER. The Stockholder shall
have performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Closing Date.
(c) CERTIFICATE. WasteMasters shall have received a certificate, dated the
Closing Date, signed on behalf of the Stockholder to the effect that the
conditions set forth in Sections 8.2(a), 8.2(b) and 8.2(e) have been satisfied.
(d) INTENTIONALLY DELETED.
(e) NO MATERIAL ADVERSE CHANGE. No change or development, or combination of
changes or developments shall have occurred which would have a Company Material
Adverse Effect.
(f) INTENTIONALLY DELETED.
(g) INTENTIONALLY DELETED
(h) INTENTIONALLY DELETED.
(i) INTENTIONALLY DELETED.
(j) INTENTIONALLY DELETED.
(k) ASSIGNMENT OF WARRANTS AND CAUSES OF ACTION. The Stockholder shall have
executed and delivered to WasteMasters an agreement in form and substance
mutually acceptable to Stockholder and WasteMasters whereby Stockholder assigns
to WasteMasters all right, title, and interest in and to all warrants and/or
options to acquire Company Shares; and causes of action against any person
relating in any way to Stockholder's ownership of the Company Shares; all in
consideration of the Common Stock Per Share Consideration. Excluded from such
conveyance shall be the unsecured proof of claim filed by Stockholder on May 27,
1997 in the amount of $582,945 in a case styled IN RE ATLAS ENVIRONMENTAL, INC.;
Case No. 97-20203-BKC-RBR, Chapter 11 (Jointly Administered with other cases),
pending in the United States Bankruptcy Court For The Southern District of
Florida.
Section 8.3 CONDITIONS TO OBLIGATION OF THE STOCKHOLDER. The obligation of
the Stockholder to consummate the transactions contemplated hereby is also
subject to the satisfaction of the following additional conditions, on or prior
to the Closing Date, unless waived by the Stockholder's Representative (as
hereinafter defined):
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
WasteMasters set forth in this Agreement (i) that are qualified as to
materiality shall be true, complete and correct in all respects and (ii) that
are not so qualified shall be true, complete and correct in all material
respects, in each case as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date (except that the accuracy of
the representations and warranties that by their terms speak as of the date of
this Agreement or some other date shall be determined as of such date).
(b) PERFORMANCE OF OBLIGATIONS OF WASTEMASTERS. WasteMasters shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date.
(c) CERTIFICATES. The Stockholder shall have received a certificate, dated
the Closing Date, signed on behalf of WasteMasters by its chief executive
officer or its chief financial officer to the effect that the conditions set
forth in Sections 8.3(a), 8.3(b) and 8.3(d) have been satisfied.
(d) NO MATERIAL ADVERSE CHANGE. No change or development, or combination of
changes or developments shall have occurred which would have a WasteMasters
Material Adverse Effect.
(e) CORPORATE ACTION. The Stockholder shall have received from WasteMasters
(i) copies of resolutions of WasteMasters' Board of Directors approving and
adopting this Agreement and the transactions contemplated hereby, certified on
behalf of WasteMasters by its corporate secretary, and (ii) a certificate of
existence and of good standing from the Secretary of State of the State of
Maryland for WasteMasters dated as of a date not more than ten (10) days prior
to the Closing Date.
(f) INTENTIONALLY DELETED.
(g) INTENTIONALLY DELETED.
(h) WARRANT PURCHASE AGREEMENT. Wastemasters shall have executed and
delivered to Stockholder a Warrant Purchase Agreement that grants to Stockholder
the right to purchase additional shares of Wastemasters Common Stock as follows:
for a period of 24 months following the Closing the Seller will have the right
to purchase 500,000 shares of Wastemasters Common Stock (subject to adjustment)
at a purchase price per share of $5.00; and for a period of 24 months following
the Closing the Seller will have the right to purchase 500,000 shares of
Wastemasters Common Stock (subject to adjustment) at a purchase price per share
of $15.00.
ARTICLE IX
TERMINATION AND AMENDMENT
Section 9.1 INTENTIONALLY DELETED
Section 9.2 INTENTIONALLY DELETED
Section 9.3 AMENDMENT. This Agreement may be amended by the parties hereto
by action taken or authorized by its Board of Directors, in the case of
WasteMasters, and, by the Stockholder, in the case of the Stockholder. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
Section 9.4 EXTENSION; WAIVER. At any time prior to the Closing Date, the
parties hereto, by action taken or authorized by its Board of Directors, in the
case of WasteMasters, and by the Stockholder, in the case of the Stockholder,
may, to the extent legally allowed, (i) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (iii) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party.
ARTICLE X
INTENTIONALLY DELETED.
ARTICLE XI
MISCELLANEOUS
Section 11.1 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given on the date delivered if delivered
personally (including by reputable overnight courier), on the date transmitted
if sent by facsimile (which is confirmed), or mailed by registered or certified
mail (return receipt requested) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to WasteMasters, to:
WasteMasters, Inc.
1230 Peachtree, Suite 2545
Atlanta, Georgia 30309
Facsimile: 404-888-9447
(b) if to the Stockholder's Representative, to:
T. Alec Rigby
C/o Edwards & Angell
250 Royal Palm Way
Palm Beach, Florida 33480
Facsimile: (561) 655-8719
Attn: John G. Igoe, Esq.
Section 11.2 INTENTIONALLY DELETED.
Section 11.3 INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement they shall be deemed to be
followed by the words "without limitation." The phrase "made available" in this
Agreement shall mean that the information referred to has been made available if
requested by the party to whom such information is to be made available. The
phrases "the date of this Agreement," "the date hereof" and terms of similar
import, unless the context otherwise requires, shall be deemed to refer to April
____, 1998. The word "knowledge" of or with respect to the Stockholder shall
mean the actual knowledge of T. Alec Rigby; and the words "know", "known" and
like terms with respect to the Company shall have correlative meanings.
Section 11.4 COUNTERPARTS. This Agreement may be executed in counterparts,
all of which shall be considered one and the same agreement and shall become
effective when a counterpart has been signed by each of the parties and
delivered to each of the other parties, it being understood that all parties
need not sign the same counterpart.
Section 11.5 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
(including the documents and the instruments referred to herein) (a) constitute
the entire agreement and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and thereof, and (b) except as provided in Section 6.15 hereof, are not intended
to confer upon any person other than the parties hereto and thereto any rights
or remedies hereunder or thereunder.
Section 11.6 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Florida without regard to any
applicable conflicts of law principles.
Section 11.7 SPECIFIC PERFORMANCE. The parties hereto agree that if any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof (without the requirement of the posting of any bond or other security),
in addition to any other remedy at law or equity.
Section 11.8 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
Section 11.9 SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated thereby is not affected in any manner
adverse to any party. Upon any such determination, the parties shall negotiate
in good faith in an effort to agree upon a suitable and equitable substitute
provision to effect original intent of the parties.
Section 11.10 INTENTIONALLY DELETED.
Section 11.11 FEES AND EXPENSES. Whether or not the transactions
contemplated hereby are consummated, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by WasteMasters, if incurred by WasteMasters, or any of its affiliates
(other than the Stockholder and its affiliates), or by the Stockholder, if
incurred by the Stockholder, its affiliates, or the Stockholder.
Section 11.12 JURISDICTION. Subject to Section 10.3 hereof, each of the
Stockholder, the Company and WasteMasters hereby (i) consents to be subject to
jurisdiction of the United States District Court for the Southern District of
Florida and the jurisdiction of the courts of the State of Florida in any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby, (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
(iii) agrees that it will not bring any action relating to this Agreement or the
transactions contemplated hereby in any court other than the United States
District Court for the Southern District of Florida or the courts of the State
of Florida, (iv) irrevocably waives (A) any objection that it may have or
hereafter have to the laying of venue of any such suit, action or proceeding in
such court and (B) any claim that any such suit, action or proceeding in any
such court has been brought in an inconvenient forum and (v) irrevocably
consents to the service of any and all process in any such suit, action or
proceeding by the delivery of such process to such party at the address and in
the manner provided in Section 11.1 hereof.
Section 11.13 JOINT PRESS RELEASE. WasteMasters and Stockholder shall
jointly cooperate in preparing a press release concerning the subject matter of
this Agreement and neither WasteMasters or Stockholder shall issue a press
release without the approval of the other party.
<PAGE>
IN WITNESS WHEREOF, WasteMasters and the Stockholder have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
WASTE VENTURES CORPORATION
/s/Robert N. Kemper, Jr.
--------------------------------------
Name: Robert N. Kemper, Jr.
Title: President
THE STOCKHOLDER
/s/T.Alec Rigby
--------------------------------------
T.Alec Rigby
Exhibit 99.2
SHARE EXCHANGE AGREEMENT
This SHARE EXCHANGE AGREEMENT, is dated as of April 23, 1998, among WASTE
VENTURES CORPORATION, a Texas corporation ("Waste Ventures") and T. ALEC RIGBY,
an individual (the "Stockholder").
W I T N E S S E T H :
WHEREAS, the Stockholder is the record and beneficial owner of 7,616,000
shares of Series A Preferred Stock, $1.00 par value of Atlas Environmental,
Inc., (the "Company") a Colorado corporation (the "Company Preferred Stock" or
the "Company Preferred Stock"), which constitutes 100% of the issued and
outstanding Company Preferred Stock;
WHEREAS, the Stockholder desires to exchange his Company Preferred Stock
for shares of common stock, par value $.01 per share, of Waste Ventures, Inc.
("WasteMasters Common Stock") owned by Waste Ventures and Waste Ventures desires
to acquire all of the Company Preferred Stock owned by Stockholder through such
exchange, each on the terms and subject to the conditions contained herein (the
"Acquisition"); and
WHEREAS, the Stockholder has determined that the Acquisition is in the best
interests of the Stockholder, and has approved this Agreement and the
transactions contemplated hereby;
WHEREAS, the Board of Directors of Waste Ventures has determined that the
Acquisition is in the best interests of Waste Ventures and has approved this
Agreement and the transactions contemplated hereby;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto agree as follows:
ARTICLE I
EXCHANGE OF COMPANY PREFERRED STOCK
Section 1.1 EXCHANGE OF COMPANY PREFERRED STOCK. Upon the terms and subject
to the conditions of this Agreement, at the Closing (as hereinafter defined),
the Stockholder will convey, assign, transfer and deliver to Waste Ventures, and
Waste Ventures will acquire and accept from the Stockholder, all right, title
and interest in and to the Company Preferred Stock, free and clear of any lien,
encumbrance, security interest, mortgage, pledge, charge, claim, option, right
of first refusal or call, or restriction of any kind (collectively, "Liens")
other than those, if any, created by Waste Ventures.
Section 1.2 CONVEYANCE. Such conveyance, assignment, transfer and delivery
shall be effected by delivery by the Stockholder to Waste Ventures of stock
certificates representing the Company Preferred Stock, duly endorsed or
accompanied by stock powers duly executed in blank with appropriate transfer
stamps, if any, affixed, and any other documents that are necessary to transfer
title to the Company Preferred Stock to Waste Ventures, free and clear of any
and all Liens, other than those, if any, created by Waste Ventures.
Section 1.3 CONSIDERATION.
Upon the terms and subject to the conditions of this Agreement, Waste
Ventures will deliver or cause to be delivered 1,385,334 duly authorized,
validly issued, fully paid and nonassessable Rule 144 restricted common stock
shares of WasteMasters, Inc. owned by Waste Ventures and valued at $3.00 per
share in exchange for shares of Company Preferred Stock conveyed, assigned,
transferred and delivered to Waste Ventures by such Stockholder pursuant to
Section 1.1 hereof (the "Preferred Stock Per Share Consideration"). The
aggregate Preferred Stock Per Share Consideration payable to the Stockholder
pursuant to this Agreement is hereinafter referred to as the "Aggregate
Consideration."
Section 1.4 ADJUSTMENT OF THE AGGREGATE CONSIDERATION. If between the date
of this Agreement and the Closing Date (as hereinafter defined), the outstanding
shares of Company Preferred Stock, or WasteMasters Common Stock shall have been
changed into a different number of shares or a different class, by reason of any
stock dividend, subdivision, reclassification, recapitalization, split,
combination, exchange of shares or similar transaction, the Preferred Stock Per
Share Consideration shall be correspondingly adjusted to reflect such stock
dividend, subdivision, reclassification, recapitalization, split, combination,
exchange of shares or similar transaction. Nothing stated in the immediately
preceding sentence shall be construed as providing the holders of Company
Preferred Stock any preemptive or antidilutive rights.
Section 1.5 TRANSFER RESTRICTIONS; LEGEND.
(a) The shares of WasteMasters Common Stock to be issued to the Stockholder
pursuant to Section 1.3 hereof will not be registered under the Securities Act
of 1933, as amended (the "Securities Act"), on the Closing Date and may not be
transferred, sold or otherwise disposed of by any Stockholder except pursuant to
an effective registration statement under the Securities Act or in accordance
with an exemption from the registration requirements of the Securities Act.
Except as otherwise agreed between WasteMasters and the Stockholder, the
Stockholder agrees that it will not transfer, sell or otherwise dispose of any
of the shares of WasteMasters Common Stock received or reduce its interest in or
relating to such shares of WasteMasters Common Stock until after the expiration
of twelve (12) months following the Closing; and thereafter the Stockholder
agrees to sell no more than 40,000 shares of WasteMasters Common Stock per month
and all in accordance with SEC Rule 144. In the event that Stockholder desires
to sell more than the specified lock-up maximums of 40,000 per month, it shall
grant a first right of refusal to Waste Ventures or its designee who shall have
the right, but not the obligation to purchase such shares of WasteMasters Common
Stock in excess of such maximums at a discount of 6% of the bid price on the
date such right is extended. After receipt of written notice from Stockholder
that he desires to sell more than the specified monthly lock-up maximum of
40,000 shares, Waste Ventures or its designee shall have two (2) business days
after receipt of such notice to exercise such first right of refusal. The
Stockholder may sell the excess shares not purchased by Waste Ventures during
the next 20 business days.
(b) Each certificate representing shares of WasteMasters Common Stock
issued by WasteMasters and delivered by Waste Ventures to the Stockholder in
accordance with Section 1.3 shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS
THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT, AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE ACT, AS AMENDED, AND IN COMPLIANCE WITH
APPLICABLE SECURITIES LAWS OF ANY STATE WITH RESPECT THERETO OR IN ACCORDANCE
WITH AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER THAT
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND ALSO MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF BY THE HOLDER WITHOUT COMPLIANCE WITH THE
APPLICABLE SECURITIES AND EXCHANGE COMMISSION RULES AND REGULATIONS.
Waste Ventures agrees to cause WasteMasters to remove such legend (or any
relevant portion thereof), by prompt delivery of substitute certificates upon
the request of the holder if at such time such legend (or portion thereof) is no
longer required for purposes of, or applicable pursuant to, the prior provisions
of this Section 1.5.
ARTICLE II
CLOSING
Section 2.1 CLOSING. Subject to the satisfaction or waiver of all the
conditions to closing contained in Article VIII hereof, the closing (the
"Closing") of the Acquisition will take place at 10:00 a.m. on the first
business day after satisfaction or waiver of the conditions to the Closing
contained in Article VIII hereof, at the offices of Waste Ventures, unless
another date, time or place is agreed to by the parties hereto. The date and
time at which the Closing occurs is referred to herein as the "Closing Date." In
no event will the Closing Date be later than April 23, 1998.
Section 2.2 DELIVERY OF THE SHARES. At the Closing, the Stockholder will
deliver to Waste Ventures (a) certificates evidencing the shares of Company
Preferred Stock owned by such Stockholder ("Preferred Stock Certificates" or
"Certificates"), each duly endorsed or accompanied by stock powers duly executed
in blank with appropriate transfer stamps, if any, affixed, and any other
documents that are reasonably necessary to transfer title to such shares.
Section 2.3 DELIVERY OF COMMON STOCK. At the Closing, Waste Ventures will
(a) issue or cause to be issued to the Stockholder in exchange for Preferred
Stock Certificates, shares of WasteMasters Common Stock in an amount equal to
the Preferred Stock Per Share Consideration and (b) deliver certificates
representing such shares of WasteMasters Common Stock as follows: Waste Ventures
will deliver to the Stockholder one or more certificates representing the shares
of WasteMasters Common Stock issuable to such Stockholder pursuant to this
Agreement. The shares of WasteMasters Common Stock issued upon the surrender for
exchange of shares of Company Preferred Stock in accordance with the terms
hereof shall be deemed to have been issued in full satisfaction of all rights
pertaining to such shares of Company Preferred Stock.
Section 2.4 LOST CERTIFICATES. In the event that any Certificate has been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by Waste Ventures, the posting by such person of a bond in such
reasonable amount as Waste Ventures may direct as indemnity against any claim
that may be made against it with respect to such Certificate, Waste Ventures
shall, in respect of such lost, stolen or destroyed Certificate, issue or cause
to be issued the number of shares of WasteMasters Common Stock deliverable in
respect thereof pursuant to this Agreement.
ARTICLE III
INTENTIONALLY DELETED.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder represents and warrants as to itself to Waste Ventures as
follows:
Section 4.1 ORGANIZATION. The Stockholder is an individual and has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as it is now being conducted.
Section 4.2 AUTHORITY. The execution, delivery and performance of this
Agreement by the Stockholder and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Stockholder, and no other proceedings on the part of the Stockholder
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Stockholder and, assuming that this Agreement constitutes a valid and binding
obligation of the other parties hereto, constitutes a valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law). The Stockholder has approved
the transactions contemplated hereby and has determined that such transactions
are in the best interests of the Company and such Stockholder.
Section 4.3 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings,
permits, authorizations, consents and approvals as may be required, the
execution, delivery or performance of this Agreement by each Stockholder, the
consummation by each Stockholder of the transactions contemplated hereby and
compliance by each Stockholder with any of the provisions hereof shall not (a)
conflict with or result in any breach of any provisions of the organizational
documents of such Stockholder, (b) require any filing by such Stockholder or any
of its Subsidiaries with, or any permit, authorization, consent or approval to
be obtained by such Stockholder of any Governmental Entity, (c) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time, or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, any of the terms, conditions or provisions of any
Contract to which such Stockholder is a party or by which any of them or any of
their properties or assets may be bound or affected or (d) violate any order,
writ, injunction, decree, statute, ordinance, rule or regulation applicable to
such Stockholder, except, in the case of clause (c) or (d), for violations,
breaches or defaults which would not have a material adverse effect on the
ability of such Stockholder to consummate the transactions contemplated hereby.
Section 4.4 TITLE TO SHARES. Section 4.4 of the Stockholder Disclosure
Schedule sets forth the number of outstanding shares of Company Preferred Stock
owned by the Stockholder and the date of Stockholder's acquisition of same, and
the Stockholder (i) owns such shares free and clear of any Liens and (ii) has
full power, right and authority to exchange such shares pursuant to the terms of
this Agreement.
Section 4.5 INVESTMENT INTENTION. The Stockholder is acquiring the shares
of WasteMasters Common Stock issuable to such Stockholder pursuant to the terms
of this Agreement for investment solely for such Stockholder's own account and
not with a view to or for resale in connection with the distribution or other
disposition thereof except for such which are permitted hereunder and under the
Securities Act.
Section 4.6 FEDERAL SECURITIES LAW MATTERS. The Stockholder has been
advised that (a) neither the sale nor the offer of the shares of WasteMasters
Common Stock issuable pursuant to the terms of this Agreement has been
registered under the Securities Act, (b) such shares must be held and the
Stockholder must continue to bear the economic risk of the investment in the
shares of WasteMasters Common Stock issuable to such Stockholder pursuant to the
terms of this Agreement until such shares are subsequently registered under the
Securities Act or an exemption from registration is available, (c) a restrictive
legend in the form set forth in Section 1.5(c) hereof shall be placed on the
certificates representing the shares of WasteMasters Common Stock issuable
pursuant to the terms of this Agreement and (d) appropriate stop-transfer
instructions shall be issued by WasteMasters, Inc. to its stock transfer agent
with respect to such shares; provided that such legend shall be removed and such
stop-transfer instructions lifted when and as contemplated by Section 1.5(c)
hereof.
Section 4.7 INTENTIONALLY DELETED.
Section 4.8 ACCESS TO INFORMATION. (a) The Stockholder understands and is
aware of all the risk factors related to an investment in the shares of
WasteMasters Common Stock issuable pursuant to the terms of this Agreement, (b)
the Stockholder or its attorneys or advisors have carefully reviewed this
Agreement and have been granted the opportunity to ask questions of, and receive
answers from, representatives of Waste Ventures concerning the terms and
conditions of the investment in the shares of WasteMasters Common Stock issuable
pursuant to the terms of this Agreement and to obtain any additional information
which such Stockholder deems necessary, (c) the Stockholder's knowledge and
experience in financial and business matters is such that the Stockholder is
capable of evaluating the risks of the investment in the shares of WasteMasters
Common Stock issuable pursuant to the terms of this Agreement and (d) in making
its decision to approve the transactions contemplated hereby and to exchange its
shares of Company Preferred Stock for shares of WasteMasters Common Stock
pursuant to this Agreement, the Stockholder has relied upon the independent
investigation made by such Stockholder and, to the extent believed by the
Stockholder to be appropriate, such Stockholder's representatives, including
such Stockholder's own professional, tax and other advisors.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF WASTE VENTURES
Waste Ventures represents and warrants to the Stockholder as
follows:
Section 5.1 ORGANIZATION. Waste Ventures is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and corporate authority to
own, lease and operate its properties and to carry on its business as now being
conducted, except where the failure to be so organized, existing and in good
standing or to have such power and authority would not have a Waste Ventures
Material Adverse Effect (as hereinafter defined). As used in this Agreement, any
reference to any event, change or effect having a "Waste Ventures Material
Adverse Effect" means such event, change or effect is, or is likely to be,
materially adverse to (a) the business, properties, financial condition or
results of operations of Waste Ventures and its Subsidiaries, taken as a whole
or (b) the ability of Waste Ventures to consummate the transactions contemplated
hereby.
Section 5.2 INTENTIONALLY DELETED.
Section 5.3 AUTHORITY. Waste Ventures has the requisite corporate power and
corporate authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by Waste Ventures and the consummation by Waste Ventures of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Waste Ventures and no other corporate
proceedings on the part of Waste Ventures are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Waste Ventures and, assuming that this
Agreement constitutes a valid and binding obligation of the other parties
hereto, constitutes a valid and binding obligation of Waste Ventures,
enforceable against Waste Ventures in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law).
Section 5.4 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings,
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Securities Act, the execution, delivery or
performance of this Agreement by Waste Ventures, the consummation by Waste
Ventures of the transactions contemplated hereby and compliance by Waste
Ventures with any of the provisions hereof shall not (a) conflict with or result
in any breach of any provision of the organizational documents of Waste
Ventures, (b) require any filing by Waste Ventures or any of its Subsidiaries
with, or any permit, authorization, consent or approval to be obtained by Waste
Ventures or any of its Subsidiaries of, any Governmental Entity (except where
the failure to obtain such permits, authorizations, consents or approvals or to
make such filings would not have a Waste Ventures Material Adverse Effect), (c)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time, or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any Contract to which Waste Ventures or any of its Subsidiaries is a party or
by which any of them or any of their properties or assets may be bound or
affected or (d) violate any order, writ, injunction, decree, statute, ordinance,
rule or regulation applicable to Waste Ventures or any of its Subsidiaries,
except, in the case of clause (c) or (d), for violations, breaches, defaults,
terminations, cancellations or accelerations which would not have a Waste
Ventures Material Adverse Effect.
Section 5.5 INTENTIONALLY DELETED.
Section 5.6 BROKERS OR FINDERS. Neither Waste Ventures nor any of its
Subsidiaries has any liability to any agent, broker, investment banker,
financial advisor or other firm or person for any broker's or finder's fee or
any other commission or similar fee in connection with any of the transactions
contemplated by this Agreement.
Section 5.7 TAKEOVER STATUTES. To the knowledge of Waste Ventures, no
Takeover Statute is applicable to the transactions contemplated by this
Agreement.
Section 5.8 INTENTIONALLY DELETED.
Section 5.9 LEGAL PROCEEDINGS. Except as disclosed prior to the date
hereof, and in public filings; (i) no litigation, investigation of which Waste
Ventures has knowledge or proceeding of or before any arbitrator or Governmental
Entity has been commenced and is pending or, to the knowledge of Waste Ventures,
is threatened by or against WasteMasters or Waste Ventures or any of its
Subsidiaries or against any of their respective properties or assets which would
have, individually or in the aggregate, a Waste Ventures Material Adverse
Effect; and (ii) there are no judgments, injunctions, decrees, orders or other
determinations of an arbitrator or Governmental Entity applicable to the Waste
Ventures or any of its Subsidiaries or any of their respective properties or
assets which would have, individually or in the aggregate, a Waste Ventures
Material Adverse Effect.
Section 5.10 COMPLIANCE WITH LAWS. Except as disclosed prior to the date
hereof, and in public filings, each of WasteMasters, Waste Ventures and its
Subsidiaries is in compliance in all respects with all laws, statutes, orders,
rules, regulations, ordinances and judgments of any Governmental Entity, holds
all Permits that are necessary to the conduct of its business or the ownership
of its properties, and is in compliance with each such Permit, except where the
failure to so comply with an applicable law or hold such Permits would not have
a Waste Ventures Material Adverse Effect.
Section 5.11 INVESTMENT INTENTION. Waste Ventures is acquiring the Company
Shares pursuant to the terms of this Agreement for investment solely for Waste
Ventures own account and not with a view to or for resale in connection with the
distribution or other disposition thereof except for such which are permitted
hereunder and under the Securities Act.
Section 5.12 FEDERAL SECURITIES LAW MATTERS. Waste Ventures has been
advised that (a) neither the sale nor the offer of the Company Preferred Stock
pursuant to the terms of this Agreement has been registered under the Securities
Act, (b) such shares must be held and Waste Ventures must continue to bear the
economic risk of the investment in the Company Preferred Stock pursuant to the
terms of this Agreement until such shares are subsequently registered under the
Securities Act or an exemption from registration is available, (c) a restrictive
legend in the form set forth in Section 1.5(c) hereof shall be placed on the
certificates representing the Company Preferred Stock pursuant to the terms of
this Agreement and (d) appropriate stop-transfer instructions shall be issued by
the Company to its stock transfer agent with respect to such shares; provided
that such legend shall be removed and such stop-transfer instructions lifted
when and as contemplated by Section 1.5(c) hereof.
Section 5.13 ACCESS TO INFORMATION. (a) Waste Ventures understands and is
aware of all the risk factors related to an investment in the Company Preferred
Stock issuable pursuant to the terms of this Agreement, (b) Waste Ventures or
its attorneys or advisors have carefully reviewed this Agreement and have been
granted the opportunity to ask questions of, and receive answers from,
representatives of the Company concerning the terms and conditions of the
investment in the Company Preferred Stock issuable pursuant to the terms of this
Agreement and to obtain any additional information which Waste Ventures deems
necessary, (c) Waste Ventures' knowledge and experience in financial and
business matters is such that Waste Ventures is capable of evaluating the risks
of the investment in the Company Preferred Stock issuable pursuant to the terms
of this Agreement and (d) in making its decision to approve the transactions
contemplated hereby and to exchange WasteMasters Common Stock for the Company
Preferred Stock pursuant to this Agreement, Waste Ventures has relied upon the
independent investigation made by Waste Ventures and, to the extent believed by
Waste Ventures to be appropriate, WasteMaster's representatives, including
WasteMaster's own professional, tax and other advisors.
ARTICLE VI
COVENANTS AND OTHER AGREEMENTS
Section 6.1 INTENTIONALLY DELETED.
Section 6.2 NO SOLICITATION. Unless and until this Agreement is terminated
in accordance with its terms, the Stockholder shall not, directly or indirectly,
solicit or initiate discussions with, enter into negotiations or agreements
with, or furnish any information about the Company that is not publicly
available to, or otherwise assist, facilitate or encourage, any entity, person
or group (other than Waste Ventures, an affiliate of Waste Ventures or their
authorized representatives) concerning any proposal for a merger, sale of
substantial assets, sale of any shares of capital stock or rights to acquire any
shares of capital stock, recapitalization or other business combination
transaction involving the Company or any of its Subsidiaries (a "Competing
Transaction"). The Stockholder shall instruct the respective officers,
directors, employees, advisors, affiliates, counsel and agents (collectively,
"Representatives") of the Company and its Subsidiaries not to take any action
contrary to the provisions of the previous sentence. The Stockholder shall
notify Waste Ventures immediately in writing if the Company becomes aware that
any inquiries or proposals are received by, any information is requested from,
or any negotiations or discussions are sought to be initiated with, the Company
or its Subsidiaries with respect to a Competing Transaction.
Section 6.3 INTENTIONALLY DELETED.
Section 6.4 INTENTIONALLY DELETED.
Section 6.5 NOTIFICATION OF CERTAIN MATTERS. Each of the Stockholder and
Waste Ventures shall promptly advise the other party orally and in writing of
(i) any representation or warranty made by it contained in this Agreement that
is qualified as to materiality becoming untrue or inaccurate in any respect or
any such representation or warranty that is not so qualified becoming untrue or
inaccurate in any material respect or (ii) the failure by it to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement or (iii) any event or
change or impending occurrence of any event or change of which it has knowledge
and which has resulted, or which, insofar as can reasonably be foreseen, is
likely to result, in any of the conditions to the transactions contemplated
hereby set forth in Article VIII hereof not being satisfied; provided, however,
that no such notification shall affect the representations, warranties,
covenants or agreements of the parties or the conditions to the obligations of
the parties under this Agreement.
Section 6.6 INTENTIONALLY DELETED.
Section 6.7 REASONABLE EFFORTS.
(a) Subject to the terms and conditions of this Agreement, each of the
parties hereto agrees to use its commercially reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, (i) the preparation and filing of all applicable
forms under applicable laws, (ii) such actions as may be required to be taken
under applicable state securities or "blue sky" laws in connection with the
issuance of shares of WasteMasters Common Stock and contemplated hereby, (iii)
the preparation and filing of all other forms, registrations and notices
required to be filed to consummate the transactions contemplated by this
Agreement and the taking of such actions as are necessary to obtain any
requisite consents, approvals, authorizations or orders of any Governmental
Entity or third party and (iv) the satisfaction of all conditions to the
Closing.
(b) Each party shall promptly consult with the other with respect to and
provide any necessary information not subject to legal privilege with respect to
and provide the other (or its counsel) copies of, all filings made by such party
with any Governmental Entity or any other information supplied by such party to
a Governmental Entity in connection with this Agreement and the transactions
contemplated by this Agreement (except personal information with respect to
officers and directors). Each party hereto shall promptly inform the other of
any material communication from any Governmental Entity regarding any of the
transactions contemplated by this Agreement. If any party or affiliate thereof
receives a request for additional information or documentary material from any
such Governmental Entity with respect to the transactions contemplated by this
Agreement, then such party will endeavor in good faith to make, or cause to be
made, as soon as reasonably practicable and after consultation with the other
party, an appropriate response in compliance with such request.
(c) Notwithstanding the foregoing, nothing in this Agreement shall be
deemed to require Waste Ventures to enter into any agreement with any
Governmental Entity or to consent to any order, decree or judgment requiring
Waste Ventures to hold separate or divest, or to restrict the dominion or
control of Waste Ventures or any of its affiliates over any other business of
Waste Ventures, its affiliates or the Company and its Subsidiaries. In addition,
no party hereto shall take any action after the date hereof that could
reasonably be expected to materially delay the obtaining of, or result in not
obtaining, any permission, approval or consent from any Governmental Entity
necessary to be obtained prior to the Closing.
Section 6.8 INTENTIONALLY DELETED.
Section 6.9 INTENTIONALLY DELETED.
Section 6.10 INTENTIONALLY DELETED.
Section 6.11 INTENTIONALLY DELETED.
Section 6.12 INTENTIONALLY DELETED.
Section 6.13 TAKEOVER STATUTES. If any Takeover Statute is or may become
applicable to the transactions contemplated by this Agreement, the Stockholder
shall cause the Company, and Waste Ventures and their respective Boards of
Directors shall grant such approvals and take such actions as are necessary so
that the transactions contemplated by this Agreement may be consummated as
promptly as practicable on the terms contemplated thereby and otherwise to act
to eliminate or minimize the effects of any such Takeover Statute on any of the
transactions contemplated by this Agreement.
Section 6.14 CERTAIN ACTIONS. Each of the parties hereto shall not take any
action that would, or that could reasonably be expected to, result in any of the
conditions to their respective obligations to consummate the transactions
contemplated hereby set forth in Article VIII not being satisfied.
Section 6.15 INTENTIONALLY DELETED.
Section 6.16 FURTHER ASSURANCES. In the event that at any time after the
Closing Date any further action is necessary or desirable to carry out the
purposes of this Agreement, the Stockholder and Waste Ventures shall take such
necessary action.
Section 6.17 LIMITED SURVIVAL OF WARRANTIES AND REPRESENTATIONS. The
warranties and representations contained in Articles IV and V shall survive the
Closing for a period of 12 months following the date of this Agreement, after
which they shall automatically expire and be of no further force or effect.
Section 6.18 INTENTIONALLY DELETED.
ARTICLE VII
INTENTIONALLY DELETED.
ARTICLE VIII
CONDITIONS
Section 8.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
ACQUISITION. The respective obligation of each party hereto to consummate the
transactions contemplated hereby are subject to the satisfaction or waiver, on
or prior to the Closing Date, of each of the following conditions:
(a) NO INJUNCTIONS OR RESTRAINTS. (i) No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing or
materially restricting the consummation of the transactions contemplated hereby
shall be in effect (each party agreeing to use all reasonable efforts to have
any such order reversed or injunction lifted) and (ii) no action by any
Governmental Entity shall be pending seeking to prevent or materially restrict
the consummation of the transactions contemplated hereby; provided, however,
that the conditions set forth in the preceding clause (ii) shall not be a
condition to Waste Ventures' obligations unless Waste Ventures has complied in
all material respects with the provisions of Section 6.7 hereof.
(b) REGULATORY APPROVALS. (i) All authorizations, consents, orders or
approvals of those Governmental Entities listed in Section 8.1(c) of the
Stockholder Disclosure Schedule shall have been obtained and (ii) all other
authorizations, consents, orders or approvals of, or declarations or filings
with, or expirations of waiting periods imposed by, any Governmental Entity, the
failure of which to be obtained, made or occurred would have a Company Material
Adverse Effect or a Waste Ventures Material Adverse Effect, shall have been
obtained, made or occurred; provided, however, that the condition set forth in
the preceding clause (ii) shall not be a condition to Waste Ventures'
obligations unless Waste Ventures has complied in all material respects with the
provisions of Section 6.7 hereof. Waste Ventures shall have received all state
securities or "blue sky" permits and other authorizations necessary to issue or
cause the issuance of the WasteMasters Common Stock pursuant to this Agreement.
(c) THIRD PARTY CONSENTS. All consents of those third parties listed in
Section 8.1(d) of the Stockholder Disclosure Schedule shall have been obtained
on terms reasonably acceptable to Waste Ventures.
Section 8.2 CONDITIONS TO OBLIGATION OF WASTE VENTURES. The obligation of
Waste Ventures to effect the transactions contemplated hereby are also subject
to the satisfaction, on or prior to the Closing Date, of the following
additional conditions unless waived by Waste Ventures:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Stockholder set forth in this Agreement (i) that are qualified as to
materiality shall be true, complete and correct in all respects and (ii) that
are not so qualified shall be true, complete and correct in all material
respects, in each case as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date (except that the accuracy of
the representations and warranties that by their terms speak as of the date of
this Agreement or some other date shall be determined as of such date) and, in
each case except for changes expressly permitted by this Agreement.
(b) PERFORMANCE OF OBLIGATIONS OF THE STOCKHOLDER. The Stockholder shall
have performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Closing Date.
(c) CERTIFICATE. Waste Ventures shall have received a certificate, dated
the Closing Date, signed on behalf of the Stockholder to the effect that the
conditions set forth in Sections 8.2(a), 8.2(b) and 8.2(e) have been satisfied.
(d) INTENTIONALLY DELETED.
(e) NO MATERIAL ADVERSE CHANGE. No change or development, or combination of
changes or developments shall have occurred which would have a Company Material
Adverse Effect.
(f) INTENTIONALLY DELETED.
(g) INTENTIONALLY DELETED
(h) INTENTIONALLY DELETED.
(i) INTENTIONALLY DELETED.
(j) INTENTIONALLY DELETED.
(k) INTENTIONALLY DELETED.
Section 8.3 CONDITIONS TO OBLIGATION OF THE STOCKHOLDER. The obligation of
the Stockholder to consummate the transactions contemplated hereby is also
subject to the satisfaction of the following additional conditions, on or prior
to the Closing Date, unless waived by the Stockholder's Representative (as
hereinafter defined):
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Waste Ventures set forth in this Agreement (i) that are qualified as to
materiality shall be true, complete and correct in all respects and (ii) that
are not so qualified shall be true, complete and correct in all material
respects, in each case as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date (except that the accuracy of
the representations and warranties that by their terms speak as of the date of
this Agreement or some other date shall be determined as of such date).
(b) PERFORMANCE OF OBLIGATIONS OF WASTE VENTURES. Waste Ventures shall have
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date.
(c) CERTIFICATES. The Stockholder shall have received a certificate, dated
the Closing Date, signed on behalf of Waste Ventures by its chief executive
officer or its chief financial officer to the effect that the conditions set
forth in Sections 8.3(a), 8.3(b) and 8.3(d) have been satisfied.
(d) NO MATERIAL ADVERSE CHANGE. No change or development, or combination of
changes or developments shall have occurred which would have a Waste Ventures
Material Adverse Effect.
(e) CORPORATE ACTION. The Stockholder shall have received from Waste
Ventures (i) copies of resolutions of Waste Ventures' Board of Directors
approving and adopting this Agreement and the transactions contemplated hereby,
certified on behalf of Waste Ventures by its corporate secretary, and (ii) a
certificate of existence and of good standing from the Secretary of State of the
State of Texas for Waste Ventures dated as of a date not more than ten (10) days
prior to the Closing Date.
(f) INTENTIONALLY DELETED.
(g) INTENTIONALLY DELETED.
(h) INTENTIONALLY DELETED.
ARTICLE IX
TERMINATION AND AMENDMENT
Section 9.1 INTENTIONALLY DELETED
Section 9.2 INTENTIONALLY DELETED
Section 9.3 AMENDMENT. This Agreement may be amended by the parties hereto
by action taken or authorized by its Board of Directors, in the case of Waste
Ventures, and, by the Stockholder, in the case of the Stockholder. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
Section 9.4 EXTENSION; WAIVER. At any time prior to the Closing Date, the
parties hereto, by action taken or authorized by its Board of Directors, in the
case of Waste Ventures, and by the Stockholder, in the case of the Stockholder,
may, to the extent legally allowed, (i) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (iii) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party.
ARTICLE X
INTENTIONALLY DELETED.
ARTICLE XI
MISCELLANEOUS
Section 11.1 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given on the date delivered if delivered
personally (including by reputable overnight courier), on the date transmitted
if sent by facsimile (which is confirmed), or mailed by registered or certified
mail (return receipt requested) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to Waste Ventures, to:
Waste Ventures, Inc.
6900 South Broadway
Tyler, Texas 75703
(b) if to the Stockholder's Representative, to:
T. Alec Rigby
C/o Edwards & Angell
250 Royal Palm Way
Palm Beach, Florida 33480
Facsimile: (561) 655-8719
Attn: John G. Igoe, Esq.
Section 11.2 INTENTIONALLY DELETED.
Section 11.3 INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement they shall be deemed to be
followed by the words "without limitation." The phrase "made available" in this
Agreement shall mean that the information referred to has been made available if
requested by the party to whom such information is to be made available. The
phrases "the date of this Agreement," "the date hereof" and terms of similar
import, unless the context otherwise requires, shall be deemed to refer to April
23, 1998. The word "knowledge" of or with respect to the Stockholder shall mean
the actual knowledge of T. Alec Rigby; and the words "know", "known" and like
terms with respect to the Company shall have correlative meanings.
Section 11.4 COUNTERPARTS. This Agreement may be executed in counterparts,
all of which shall be considered one and the same agreement and shall become
effective when a counterpart has been signed by each of the parties and
delivered to each of the other parties, it being understood that all parties
need not sign the same counterpart.
Section 11.5 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
(including the documents and the instruments referred to herein) (a) constitute
the entire agreement and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and thereof, and (b) except as provided in Section 6.15 hereof, are not intended
to confer upon any person other than the parties hereto and thereto any rights
or remedies hereunder or thereunder.
Section 11.6 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Florida without regard to any
applicable conflicts of law principles.
Section 11.7 SPECIFIC PERFORMANCE. The parties hereto agree that if any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof (without the requirement of the posting of any bond or other security),
in addition to any other remedy at law or equity.
Section 11.8 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
Section 11.9 SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated thereby is not affected in any manner
adverse to any party. Upon any such determination, the parties shall negotiate
in good faith in an effort to agree upon a suitable and equitable substitute
provision to effect original intent of the parties.
Section 11.10 INTENTIONALLY DELETED.
Section 11.11 FEES AND EXPENSES. Whether or not the transactions
contemplated hereby are consummated, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by Waste Ventures, if incurred by Waste Ventures, or any of its affiliates
(other than the Stockholder and its affiliates), or by the Stockholder, if
incurred by the Stockholder, its affiliates, or the Stockholder.
Section 11.12 JURISDICTION. Subject to Section 10.3 hereof, each of the
Stockholder, the Company and Waste Ventures hereby (i) consents to be subject to
jurisdiction of the United States District Court for the Southern District of
Florida and the jurisdiction of the courts of the State of Florida in any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby, (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
(iii) agrees that it will not bring any action relating to this Agreement or the
transactions contemplated hereby in any court other than the United States
District Court for the Southern District of Florida or the courts of the State
of Florida, (iv) irrevocably waives (A) any objection that it may have or
hereafter have to the laying of venue of any such suit, action or proceeding in
such court and (B) any claim that any such suit, action or proceeding in any
such court has been brought in an inconvenient forum and (v) irrevocably
consents to the service of any and all process in any such suit, action or
proceeding by the delivery of such process to such party at the address and in
the manner provided in Section 11.1 hereof.
Section 11.13 JOINT PRESS RELEASE. Waste Ventures and Stockholder shall
jointly cooperate in preparing a press release concerning the subject matter of
this Agreement and neither Waste Ventures or Stockholder shall issue a press
release without the approval of the other party.
IN WITNESS WHEREOF, Waste Ventures and the Stockholder have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
WASTE VENTURES CORPORATION
By:/s/Robert N. Kemper, Jr.
------------------------------------
Name: Robert N. Kemper, Jr.
Title: President
THE STOCKHOLDER
/s/T. Alec Rigby
--------------------------------------
T. ALEC RIGBY
Exhibit 99.3
SHARE EXCHANGE AGREEMENT
This SHARE EXCHANGE AGREEMENT, is dated as of April 23, 1998, among
WASTEMASTERS, INC., a Maryland corporation ("WasteMasters") and JOEL
SILVERSTEIN, an individual (the "Stockholder").
W I T N E S S E T H :
WHEREAS, the Stockholder is the record and beneficial owner of 250,700
shares of common stock, $0.001 par value of Atlas Environmental, Inc., (the
"Company") a Colorado corporation (the "Company Common Stock" or the "Company
Shares"), which constitutes 5.46% of the issued and outstanding Company Common
Stock;
WHEREAS, the Stockholder desires to exchange his Company Shares for shares
of common stock, par value $.01 per share, of WasteMasters, Inc. ("WasteMasters
Common Stock") and WasteMasters desires to acquire all of the Company Shares
owned by Stockholder through such exchange, each on the terms and subject to the
conditions contained herein (the "Acquisition"); and
WHEREAS, the Stockholder has determined that the Acquisition is in the best
interests of the Stockholder, and has approved this Agreement and the
transactions contemplated hereby;
WHEREAS, the Board of Directors of WasteMasters has determined that the
Acquisition is in the best interests of WasteMasters and has approved this
Agreement and the transactions contemplated hereby;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto agree as follows:
ARTICLE I
EXCHANGE OF COMPANY SHARES
Section 1.1 EXCHANGE OF COMPANY SHARES. Upon the terms and subject to the
conditions of this Agreement, at the Closing (as hereinafter defined), the
Stockholder will convey, assign, transfer and deliver to WasteMasters, and
WasteMasters will acquire and accept from the Stockholder, all right, title and
interest in and to the Company Shares, free and clear of any lien, encumbrance,
security interest, mortgage, pledge, charge, claim, option, right of first
refusal or call, or restriction of any kind (collectively, "Liens") other than
those, if any, created by WasteMasters.
Section 1.2 CONVEYANCE. Such conveyance, assignment, transfer and delivery
shall be effected by delivery by the Stockholder to WasteMasters of stock
certificates representing the Company Shares, duly endorsed or accompanied by
stock powers duly executed in blank with appropriate transfer stamps, if any,
affixed, and any other documents that are necessary to transfer title to the
Company Shares to WasteMasters, free and clear of any and all Liens, other than
those, if any, created by WasteMasters.
Section 1.3 CONSIDERATION.
Upon the terms and subject to the conditions of this Agreement,
WasteMasters will deliver or cause to be delivered 71,333 duly authorized,
validly issued, fully paid and nonassessable Rule 144 restricted common stock
shares of WasteMasters, Inc. valued at $3.00 per share in exchange for shares of
Company Common Stock conveyed, assigned, transferred and delivered to
WasteMasters by such Stockholder pursuant to Section 1.1 hereof (the "Common
Stock Per Share Consideration"). The aggregate Common Stock Per Share
Consideration payable to the Stockholder pursuant to this Agreement is
hereinafter referred to as the "Aggregate Consideration."
Section 1.4 Intentionally deleted.
Section 1.5 TRANSFER RESTRICTIONS; LEGEND.
The shares of WasteMasters Common Stock to be issued to the Stockholder
pursuant to Section 1.3 hereof will not be registered under the Securities Act
of 1933, as amended (the "Securities Act"), on the Closing Date and may not be
transferred, sold or otherwise disposed of by any Stockholder except pursuant to
an effective registration statement under the Securities Act or in accordance
with an exemption from the registration requirements of the Securities Act.
Except as otherwise agreed between WasteMasters and the Stockholder, the
Stockholder agrees that it will not transfer, sell or otherwise dispose of any
of the shares of WasteMasters Common Stock received or reduce its interest in or
relating to such shares of WasteMasters Common Stock until after the expiration
of twelve (12) months following the Closing, all in accordance with SEC Rule
144.
(b) Each certificate representing shares of WasteMasters Common Stock
issued by WasteMasters and delivered by WasteMasters to the Stockholder in
accordance with Section 1.3 shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS THAT
TERM IS DEFINED IN RULE 144 UNDER THE ACT, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER THE ACT, AS AMENDED, AND IN COMPLIANCE WITH APPLICABLE
SECURITIES LAWS OF ANY STATE WITH RESPECT THERETO OR IN ACCORDANCE WITH AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER THAT AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND ALSO MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF BY THE HOLDER WITHOUT COMPLIANCE WITH THE
APPLICABLE SECURITIES AND EXCHANGE COMMISSION RULES AND REGULATIONS.
WasteMasters agrees to remove such legend (or any relevant portion thereof), by
prompt delivery of substitute certificates upon the request of the holder if at
such time such legend (or portion thereof) is no longer required for purposes
of, or applicable pursuant to, the prior provisions of this Section 1.5.
ARTICLE II
CLOSING
Section 2.1 CLOSING. The closing (the "Closing") of the Acquisition will
take place at 10:00 a.m. on the first business day after satisfaction or waiver
of the conditions to the Closing contained in Article VIII hereof, at the
offices of WasteMasters, unless another date, time or place is agreed to by the
parties hereto. The date and time at which the Closing occurs is referred to
herein as the "Closing Date." In no event will the Closing Date be later than
April 23, 1998.
Section 2.2 DELIVERY OF THE SHARES. At the Closing, the Stockholder will
deliver to WasteMasters (a) certificates evidencing the shares of Company Common
Stock owned by such Stockholder ("Common Stock Certificates" or "Certificates"),
each duly endorsed or accompanied by stock powers duly executed in blank with
appropriate transfer stamps, if any, affixed, and any other documents that are
reasonably necessary to transfer title to such shares.
Section 2.3 DELIVERY OF COMMON STOCK. At the Closing, WasteMasters will (a)
issue or cause to be issued to the Stockholder in exchange for Common Stock
Certificates, shares of WasteMasters Common Stock in an amount equal to the
Common Stock Per Share Consideration and (b) deliver certificates representing
such shares of WasteMasters Common Stock as follows: WasteMasters will deliver
to the Stockholder one or more certificates representing the shares of
WasteMasters Common Stock issuable to such Stockholder pursuant to this
Agreement. The shares of WasteMasters Common Stock issued upon the surrender for
exchange of shares of Company Common Stock in accordance with the terms hereof
shall be deemed to have been issued in full satisfaction of all rights
pertaining to such shares of Company Common Stock.
Section 2.4 LOST CERTIFICATES. In the event that any Certificate has been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by WasteMasters, the posting by such person of a bond in such
reasonable amount as WasteMasters may direct as indemnity against any claim that
may be made against it with respect to such Certificate, WasteMasters shall, in
respect of such lost, stolen or destroyed Certificate, issue or cause to be
issued the number of shares of WasteMasters Common Stock deliverable in respect
thereof pursuant to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder represents and warrants as to itself to WasteMasters as
follows:
Section 3.1 ORGANIZATION. The Stockholder is an individual and has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as it is now being conducted.
Section 3.2 AUTHORITY. The execution, delivery and performance of this
Agreement by the Stockholder and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Stockholder, and no other proceedings on the part of the Stockholder
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Stockholder and, assuming that this Agreement constitutes a valid and binding
obligation of the other parties hereto, constitutes a valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law). The Stockholder has approved
the transactions contemplated hereby and has determined that such transactions
are in the best interests of the Stockholder.
Section 3.3 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings,
permits, authorizations, consents and approvals as may be required, the
execution, delivery or performance of this Agreement by Stockholder, the
consummation by Stockholder of the transactions contemplated hereby and
compliance by Stockholder with any of the provisions hereof shall not (a)
conflict with or result in any breach of any provisions of the organizational
documents of such Stockholder, (b) require any filing by such Stockholder or any
of its Subsidiaries with, or any permit, authorization, consent or approval to
be obtained by such Stockholder of any Governmental Entity, (c) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time, or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, any of the terms, conditions or provisions of any
Contract to which such Stockholder is a party or by which any of them or any of
their properties or assets may be bound or affected or (d) violate any order,
writ, injunction, decree, statute, ordinance, rule or regulation applicable to
such Stockholder, except, in the case of clause (c) or (d), for violations,
breaches or defaults which would not have a material adverse effect on the
ability of such Stockholder to consummate the transactions contemplated hereby.
Section 3.4 TITLE TO SHARES. The Company Common Stock owned by the
Stockholder is free and clear of any Liens and has full power, right and
authority to exchange such shares pursuant to the terms of this Agreement.
Section 3.5 INVESTMENT INTENTION. The Stockholder is acquiring the shares
of WasteMasters Common Stock issuable to such Stockholder pursuant to the terms
of this Agreement for investment solely for such Stockholder's own account and
not with a view to or for resale in connection with the distribution or other
disposition thereof except for such which are permitted hereunder and under the
Securities Act.
Section 3.6 FEDERAL SECURITIES LAW MATTERS. The Stockholder has been
advised that (a) neither the sale nor the offer of the shares of WasteMasters
Common Stock issuable pursuant to the terms of this Agreement has been
registered under the Securities Act, (b) such shares must be held and the
Stockholder must continue to bear the economic risk of the investment in the
shares of WasteMasters Common Stock issuable to such Stockholder pursuant to the
terms of this Agreement until such shares are subsequently registered under the
Securities Act or an exemption from registration is available, (c) a restrictive
legend in the form set forth in Section 1.5(c) hereof shall be placed on the
certificates representing the shares of WasteMasters Common Stock issuable
pursuant to the terms of this Agreement and (d) appropriate stop-transfer
instructions shall be issued by WasteMasters, Inc. to its stock transfer agent
with respect to such shares; provided that such legend shall be removed and such
stop-transfer instructions lifted when and as contemplated by Section 1.5(c)
hereof.
Section 3.7 ACCESS TO INFORMATION. (a) The Stockholder understands and is
aware of all the risk factors related to an investment in the shares of
WasteMasters Common Stock issuable pursuant to the terms of this Agreement, (b)
the Stockholder or its attorneys or advisors have carefully reviewed this
Agreement and have been granted the opportunity to ask questions of, and receive
answers from, representatives of WasteMasters concerning the terms and
conditions of the investment in the shares of WasteMasters Common Stock issuable
pursuant to the terms of this Agreement and to obtain any additional information
which such Stockholder deems necessary, (c) the Stockholder's knowledge and
experience in financial and business matters is such that the Stockholder is
capable of evaluating the risks of the investment in the shares of WasteMasters
Common Stock issuable pursuant to the terms of this Agreement and (d) in making
its decision to approve the transactions contemplated hereby and to exchange its
shares of Company Common Stock for shares of WasteMasters Common Stock pursuant
to this Agreement, the Stockholder has relied upon the independent investigation
made by such Stockholder and, to the extent believed by the Stockholder to be
appropriate, such Stockholder's representatives, including such Stockholder's
own professional, tax and other advisors.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF WASTEMASTERS
WasteMasters represents and warrants to the Stockholder as follows:
Section 4.1 ORGANIZATION. WasteMasters is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and corporate authority to
own, lease and operate its properties and to carry on its business as now being
conducted, except where the failure to be so organized, existing and in good
standing or to have such power and authority would not have a WasteMasters
Material Adverse Effect (as hereinafter defined). As used in this Agreement, any
reference to any event, change or effect having a "WasteMasters Material Adverse
Effect" means such event, change or effect is, or is likely to be, materially
adverse to (a) the business, properties, financial condition or results of
operations of WasteMasters and its Subsidiaries, taken as a whole or (b) the
ability of WasteMasters to consummate the transactions contemplated hereby.
Section 4.2 AUTHORITY. WasteMasters has the requisite corporate power and
corporate authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by WasteMasters and the consummation by WasteMasters of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of WasteMasters and no other corporate proceedings
on the part of WasteMasters are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by WasteMasters and, assuming that this Agreement
constitutes a valid and binding obligation of the other parties hereto,
constitutes a valid and binding obligation of WasteMasters, enforceable against
WasteMasters in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law).
Section 4.3 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings,
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Securities Act, the execution, delivery or
performance of this Agreement by WasteMasters, the consummation by WasteMasters
of the transactions contemplated hereby and compliance by WasteMasters with any
of the provisions hereof shall not (a) conflict with or result in any breach of
any provision of the organizational documents of WasteMasters, (b) require any
filing by WasteMasters or any of its Subsidiaries with, or any permit,
authorization, consent or approval to be obtained by WasteMasters or any of its
Subsidiaries of, any Governmental Entity (except where the failure to obtain
such permits, authorizations, consents or approvals or to make such filings
would not have a WasteMasters Material Adverse Effect), (c) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time, or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, any of the terms, conditions or provisions of any
Contract to which WasteMasters or any of its Subsidiaries is a party or by which
any of them or any of their properties or assets may be bound or affected or (d)
violate any order, writ, injunction, decree, statute, ordinance, rule or
regulation applicable to WasteMasters or any of its Subsidiaries, except, in the
case of clause (c) or (d), for violations, breaches, defaults, terminations,
cancellations or accelerations which would not have a WasteMasters Material
Adverse Effect.
Section 4.5 BROKERS OR FINDERS. Neither WasteMasters nor any of its
Subsidiaries has any liability to any agent, broker, investment banker,
financial advisor or other firm or person for any broker's or finder's fee or
any other commission or similar fee in connection with any of the transactions
contemplated by this Agreement.
Section 4.6 LEGAL PROCEEDINGS. Except as disclosed prior to the date
hereof, and in public filings; (i) no litigation, investigation of which
WasteMasters has knowledge or proceeding of or before any arbitrator or
Governmental Entity has been commenced and is pending or, to the knowledge of
WasteMasters, is threatened by or against WasteMasters or any of its
Subsidiaries or against any of their respective properties or assets which would
have, individually or in the aggregate, a WasteMasters Material Adverse Effect;
and (ii) there are no judgments, injunctions, decrees, orders or other
determinations of an arbitrator or Governmental Entity applicable to the
WasteMasters or any of its Subsidiaries or any of their respective properties or
assets which would have, individually or in the aggregate, a WasteMasters
Material Adverse Effect.
Section 4.7 COMPLIANCE WITH LAWS. Except as disclosed prior to the date
hereof, and in public filings, each of WasteMasters and its Subsidiaries is in
compliance in all respects with all laws, statutes, orders, rules, regulations,
ordinances and judgments of any Governmental Entity, holds all Permits that are
necessary to the conduct of its business or the ownership of its properties, and
is in compliance with each such Permit, except where the failure to so comply
with an applicable law or hold such Permits would not have a WasteMasters
Material Adverse Effect.
Section 4.8 INVESTMENT INTENTION. WasteMasters is acquiring the Company
Shares pursuant to the terms of this Agreement for investment solely for
WasteMasters own account and not with a view to or for resale in connection with
the distribution or other disposition thereof except for such which are
permitted hereunder and under the Securities Act.
Section 4.9 FEDERAL SECURITIES LAW MATTERS. WasteMasters has been advised
that (a) neither the sale nor the offer of the Company Shares pursuant to the
terms of this Agreement has been registered under the Securities Act, (b) such
shares must be held and WasteMasters must continue to bear the economic risk of
the investment in the Company Shares pursuant to the terms of this Agreement
until such shares are subsequently registered under the Securities Act or an
exemption from registration is available, (c) a restrictive legend in the form
set forth in Section 1.5(c) hereof shall be placed on the certificates
representing the Company Shares pursuant to the terms of this Agreement and (d)
appropriate stop-transfer instructions shall be issued by the Company to its
stock transfer agent with respect to such shares; provided that such legend
shall be removed and such stop-transfer instructions lifted when and as
contemplated by Section 1.5(c) hereof.
Section 4.10 ACCESS TO INFORMATION. (a) WasteMasters understands and is
aware of all the risk factors related to an investment in the Company Shares
issuable pursuant to the terms of this Agreement, (b) WasteMasters or its
attorneys or advisors have carefully reviewed this Agreement and have been
granted the opportunity to ask questions of, and receive answers from,
representatives of the Company concerning the terms and conditions of the
investment in the Company Shares issuable pursuant to the terms of this
Agreement and to obtain any additional information which WasteMasters deems
necessary, (c) WasteMaster's knowledge and experience in financial and business
matters is such that WasteMaster's is capable of evaluating the risks of the
investment in the Company Shares issuable pursuant to the terms of this
Agreement and (d) in making its decision to approve the transactions
contemplated hereby and to exchange WasteMasters Common Stock for the Company
Shares pursuant to this Agreement, WasteMasters has relied upon the independent
investigation made by WasteMasters and, to the extent believed by WasteMasters
to be appropriate, WasteMaster's representatives, including WasteMaster's own
professional, tax and other advisors.
ARTICLE V
COVENANTS AND OTHER AGREEMENTS
Section 5.1 REASONABLE EFFORTS.
(a) Subject to the terms and conditions of this Agreement, each of the
parties hereto agrees to use its commercially reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, (i) the preparation and filing of all applicable
forms under applicable laws, (ii) such actions as may be required to be taken
under applicable state securities or "blue sky" laws in connection with the
issuance of shares of WasteMasters Common Stock and contemplated hereby, (iii)
the preparation and filing of all other forms, registrations and notices
required to be filed to consummate the transactions contemplated by this
Agreement and the taking of such actions as are necessary to obtain any
requisite consents, approvals, authorizations or orders of any Governmental
Entity or third party and (iv) the satisfaction of all conditions to the
Closing.
(b) Each party shall promptly consult with the other with respect to and
provide any necessary information not subject to legal privilege with respect to
and provide the other (or its counsel) copies of, all filings made by such party
with any Governmental Entity or any other information supplied by such party to
a Governmental Entity in connection with this Agreement and the transactions
contemplated by this Agreement (except personal information with respect to
officers and directors). Each party hereto shall promptly inform the other of
any material communication from any Governmental Entity regarding any of the
transactions contemplated by this Agreement. If any party or affiliate thereof
receives a request for additional information or documentary material from any
such Governmental Entity with respect to the transactions contemplated by this
Agreement, then such party will endeavor in good faith to make, or cause to be
made, as soon as reasonably practicable and after consultation with the other
party, an appropriate response in compliance with such request.
(c) Notwithstanding the foregoing, nothing in this Agreement shall be
deemed to require WasteMasters to enter into any agreement with any Governmental
Entity or to consent to any order, decree or judgment requiring WasteMasters to
hold separate or divest, or to restrict the dominion or control of WasteMasters
or any of its affiliates over any other business of WasteMasters, its affiliates
or the Company and its Subsidiaries. In addition, no party hereto shall take any
action after the date hereof that could reasonably be expected to materially
delay the obtaining of, or result in not obtaining, any permission, approval or
consent from any Governmental Entity necessary to be obtained prior to the
Closing.
Section 5.2 FURTHER ASSURANCES. In the event that at any time after the
Closing Date any further action is necessary or desirable to carry out the
purposes of this Agreement, the Stockholder and WasteMasters shall take such
necessary action.
Section 5.3 LIMITED SURVIVAL OF WARRANTIES AND REPRESENTATIONS. The
warranties and representations contained in Articles III and IV shall survive
the Closing for a period of 12 months following the date of this Agreement,
after which they shall automatically expire and be of no further force or
effect.
ARTICLE VI
MISCELLANEOUS
Section 6.1 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given on the date delivered if delivered
personally (including by reputable overnight courier), on the date transmitted
if sent by facsimile (which is confirmed), or mailed by registered or certified
mail (return receipt requested) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to WasteMasters, to:
WasteMasters, Inc.
1230 Peachtree, Suite 2545
Atlanta, Georgia 30309
Facsimile: 404-888-9447
(b) if to the Stockholder, to:
Joel Silverstein
P.O. Box 4367
Boca Raton, FL 33429
Section 6.2 INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement they shall be deemed to be
followed by the words "without limitation." The phrase "made available" in this
Agreement shall mean that the information referred to has been made available if
requested by the party to whom such information is to be made available. The
phrases "the date of this Agreement," "the date hereof" and terms of similar
import, unless the context otherwise requires, shall be deemed to refer to April
____, 1998.
Section 6.3 COUNTERPARTS. This Agreement may be executed in counterparts,
all of which shall be considered one and the same agreement and shall become
effective when a counterpart has been signed by each of the parties and
delivered to each of the other parties, it being understood that all parties
need not sign the same counterpart.
Section 6.4 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
(including the documents and the instruments referred to herein) (a) constitute
the entire agreement and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and thereof, and (b) are not intended to confer upon any person other than the
parties hereto and thereto any rights or remedies hereunder or thereunder.
Section 6.5 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Florida without regard to any
applicable conflicts of law principles.
Section 6.6 SPECIFIC PERFORMANCE. The parties hereto agree that if any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof (without the requirement of the posting of any bond or other security) as
the sole and exclusive remedy for breach hereof.
Section 6.7 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
Section 6.8 SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated thereby is not affected in any manner
adverse to any party. Upon any such determination, the parties shall negotiate
in good faith in an effort to agree upon a suitable and equitable substitute
provision to effect original intent of the parties.
Section 6.9 FEES AND EXPENSES. Whether or not the transactions contemplated
hereby are consummated, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by
WasteMasters, if incurred by WasteMasters, or any of its affiliates (other than
the Stockholder and its affiliates), or by the Stockholder, if incurred by the
Stockholder, its affiliates, or the Stockholder.
Section 6.10 JURISDICTION. The Stockholder and WasteMasters hereby (i)
consents to be subject to jurisdiction of the United States District Court for
the Southern District of Florida and the jurisdiction of the courts of the State
of Florida in any suit, action or proceeding seeking to enforce any provision
of, or based on any matter arising out of or in connection with, this Agreement
or the transactions contemplated hereby, (ii) agrees that it will not attempt to
deny or defeat such personal jurisdiction by motion or other request for leave
from any such court, (iii) agrees that it will not bring any action relating to
this Agreement or the transactions contemplated hereby in any court other than
the United States District Court for the Southern District of Florida or the
courts of the State of Florida, (iv) irrevocably waives (A) any objection that
it may have or hereafter have to the laying of venue of any such suit, action or
proceeding in such court and (B) any claim that any such suit, action or
proceeding in any such court has been brought in an inconvenient forum and (v)
irrevocably consents to the service of any and all process in any such suit,
action or proceeding by the delivery of such process to such party at the
address and in the manner provided in Section 6.1 hereof.
(Signatures on following page)
<PAGE>
IN WITNESS WHEREOF, WasteMasters and the Stockholder have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
WASTEMASTERS, INC.
/s/R.D. Sterritt, Jr.
--------------------------------------
Name: R. D. Sterritt, Jr.
Title: Chief Executive Officer
THE STOCKHOLDER
/s/Joel Silverstein
--------------------------------------
JOEL SILVERSTEIN
Exhibit 99.4
SHARE EXCHANGE AGREEMENT
This SHARE EXCHANGE AGREEMENT, is dated as of April 23, 1998, among
WASTEMASTERS, INC., a Maryland corporation ("WasteMasters") and DAVID THOMAS, an
individual (the "Stockholder").
W I T N E S S E T H :
WHEREAS, the Stockholder is the record and beneficial owner of
250,000 shares of common stock, $0.001 par value of Atlas Environmental, Inc.,
(the "Company") a Colorado corporation (the "Company Common Stock" or the
"Company Shares"), which constitutes 5.45% of the issued and outstanding Company
Common Stock;
WHEREAS, the Stockholder desires to exchange his Company Shares for shares
of common stock, par value $.01 per share, of WasteMasters, Inc. ("WasteMasters
Common Stock") and WasteMasters desires to acquire all of the Company Shares
owned by Stockholder through such exchange, each on the terms and subject to the
conditions contained herein (the "Acquisition"); and
WHEREAS, the Stockholder has determined that the Acquisition is in the best
interests of the Stockholder, and has approved this Agreement and the
transactions contemplated hereby;
WHEREAS, the Board of Directors of WasteMasters has determined that the
Acquisition is in the best interests of WasteMasters and has approved this
Agreement and the transactions contemplated hereby;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto agree as follows:
ARTICLE I
EXCHANGE OF COMPANY SHARES
Section 1.1 EXCHANGE OF COMPANY SHARES. Upon the terms and subject to the
conditions of this Agreement, at the Closing (as hereinafter defined), the
Stockholder will convey, assign, transfer and deliver to WasteMasters, and
WasteMasters will acquire and accept from the Stockholder, all right, title and
interest in and to the Company Shares, free and clear of any lien, encumbrance,
security interest, mortgage, pledge, charge, claim, option, right of first
refusal or call, or restriction of any kind (collectively, "Liens") other than
those, if any, created by WasteMasters.
Section 1.2 CONVEYANCE. Such conveyance, assignment, transfer and delivery
shall be effected by delivery by the Stockholder to WasteMasters of stock
certificates representing the Company Shares, duly endorsed or accompanied by
stock powers duly executed in blank with appropriate transfer stamps, if any,
affixed, and any other documents that are necessary to transfer title to the
Company Shares to WasteMasters, free and clear of any and all Liens, other than
those, if any, created by WasteMasters.
Section 1.3 CONSIDERATION.
Upon the terms and subject to the conditions of this Agreement,
WasteMasters will deliver or cause to be delivered 71,258 duly authorized,
validly issued, fully paid and nonassessable Rule 144 restricted common stock
shares of WasteMasters, Inc. valued at $3.00 per share in exchange for shares of
Company Common Stock conveyed, assigned, transferred and delivered to
WasteMasters by such Stockholder pursuant to Section 1.1 hereof (the "Common
Stock Per Share Consideration"). The aggregate Common Stock Per Share
Consideration payable to the Stockholder pursuant to this Agreement is
hereinafter referred to as the "Aggregate Consideration."
Section 1.4 Intentionally deleted.
Section 1.5 TRANSFER RESTRICTIONS; LEGEND.
The shares of WasteMasters Common Stock to be issued to the Stockholder
pursuant to Section 1.3 hereof will not be registered under the Securities Act
of 1933, as amended (the "Securities Act"), on the Closing Date and may not be
transferred, sold or otherwise disposed of by any Stockholder except pursuant to
an effective registration statement under the Securities Act or in accordance
with an exemption from the registration requirements of the Securities Act.
Except as otherwise agreed between WasteMasters and the Stockholder, the
Stockholder agrees that it will not transfer, sell or otherwise dispose of any
of the shares of WasteMasters Common Stock received or reduce its interest in or
relating to such shares of WasteMasters Common Stock until after the expiration
of twelve (12) months following the Closing, all in accordance with SEC Rule
144.
(b) Each certificate representing shares of WasteMasters Common Stock
issued by WasteMasters and delivered by WasteMasters to the Stockholder in
accordance with Section 1.3 shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS
THAT TERM IS DEFINED IN RULE 144 UNDER THE ACT, AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FILED UNDER THE ACT, AS AMENDED, AND IN COMPLIANCE WITH
APPLICABLE SECURITIES LAWS OF ANY STATE WITH RESPECT THERETO OR IN ACCORDANCE
WITH AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER THAT
AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND ALSO MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF BY THE HOLDER WITHOUT COMPLIANCE WITH THE
APPLICABLE SECURITIES AND EXCHANGE COMMISSION RULES AND REGULATIONS.
WasteMasters agrees to remove such legend (or any relevant portion thereof), by
prompt delivery of substitute certificates upon the request of the holder if at
such time such legend (or portion thereof) is no longer required for purposes
of, or applicable pursuant to, the prior provisions of this Section 1.5.
ARTICLE II
CLOSING
Section 2.1 CLOSING. The closing (the "Closing") of the Acquisition will
take place at 10:00 a.m. on the first business day after satisfaction or waiver
of the conditions to the Closing contained in Article VIII hereof, at the
offices of WasteMasters, unless another date, time or place is agreed to by the
parties hereto. The date and time at which the Closing occurs is referred to
herein as the "Closing Date." In no event will the Closing Date be later than
April 23, 1998.
Section 2.2 DELIVERY OF THE SHARES. At the Closing, the Stockholder will
deliver to WasteMasters (a) certificates evidencing the shares of Company Common
Stock owned by such Stockholder ("Common Stock Certificates" or "Certificates"),
each duly endorsed or accompanied by stock powers duly executed in blank with
appropriate transfer stamps, if any, affixed, and any other documents that are
reasonably necessary to transfer title to such shares.
Section 2.3 DELIVERY OF COMMON STOCK. At the Closing, WasteMasters will (a)
issue or cause to be issued to the Stockholder in exchange for Common Stock
Certificates, shares of WasteMasters Common Stock in an amount equal to the
Common Stock Per Share Consideration and (b) deliver certificates representing
such shares of WasteMasters Common Stock as follows: WasteMasters will deliver
to the Stockholder one or more certificates representing the shares of
WasteMasters Common Stock issuable to such Stockholder pursuant to this
Agreement. The shares of WasteMasters Common Stock issued upon the surrender for
exchange of shares of Company Common Stock in accordance with the terms hereof
shall be deemed to have been issued in full satisfaction of all rights
pertaining to such shares of Company Common Stock.
Section 2.4 LOST CERTIFICATES. In the event that any Certificate has been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by WasteMasters, the posting by such person of a bond in such
reasonable amount as WasteMasters may direct as indemnity against any claim that
may be made against it with respect to such Certificate, WasteMasters shall, in
respect of such lost, stolen or destroyed Certificate, issue or cause to be
issued the number of shares of WasteMasters Common Stock deliverable in respect
thereof pursuant to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder represents and warrants as to itself to WasteMasters as
follows:
Section 3.1 ORGANIZATION. The Stockholder is an individual and has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as it is now being conducted.
Section 3.2 AUTHORITY. The execution, delivery and performance of this
Agreement by the Stockholder and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Stockholder, and no other proceedings on the part of the Stockholder
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by the
Stockholder and, assuming that this Agreement constitutes a valid and binding
obligation of the other parties hereto, constitutes a valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law). The Stockholder has approved
the transactions contemplated hereby and has determined that such transactions
are in the best interests of the Stockholder.
Section 3.3 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings,
permits, authorizations, consents and approvals as may be required, the
execution, delivery or performance of this Agreement by Stockholder, the
consummation by Stockholder of the transactions contemplated hereby and
compliance by Stockholder with any of the provisions hereof shall not (a)
conflict with or result in any breach of any provisions of the organizational
documents of such Stockholder, (b) require any filing by such Stockholder or any
of its Subsidiaries with, or any permit, authorization, consent or approval to
be obtained by such Stockholder of any Governmental Entity, (c) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time, or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, any of the terms, conditions or provisions of any
Contract to which such Stockholder is a party or by which any of them or any of
their properties or assets may be bound or affected or (d) violate any order,
writ, injunction, decree, statute, ordinance, rule or regulation applicable to
such Stockholder, except, in the case of clause (c) or (d), for violations,
breaches or defaults which would not have a material adverse effect on the
ability of such Stockholder to consummate the transactions contemplated hereby.
Section 3.4 TITLE TO SHARES. The Company Common Stock owned by the
Stockholder is free and clear of any Liens and has full power, right and
authority to exchange such shares pursuant to the terms of this Agreement.
Section 3.5 INVESTMENT INTENTION. The Stockholder is acquiring the shares
of WasteMasters Common Stock issuable to such Stockholder pursuant to the terms
of this Agreement for investment solely for such Stockholder's own account and
not with a view to or for resale in connection with the distribution or other
disposition thereof except for such which are permitted hereunder and under the
Securities Act.
Section 3.6 FEDERAL SECURITIES LAW MATTERS. The Stockholder has been
advised that (a) neither the sale nor the offer of the shares of WasteMasters
Common Stock issuable pursuant to the terms of this Agreement has been
registered under the Securities Act, (b) such shares must be held and the
Stockholder must continue to bear the economic risk of the investment in the
shares of WasteMasters Common Stock issuable to such Stockholder pursuant to the
terms of this Agreement until such shares are subsequently registered under the
Securities Act or an exemption from registration is available, (c) a restrictive
legend in the form set forth in Section 1.5(c) hereof shall be placed on the
certificates representing the shares of WasteMasters Common Stock issuable
pursuant to the terms of this Agreement and (d) appropriate stop-transfer
instructions shall be issued by WasteMasters, Inc. to its stock transfer agent
with respect to such shares; provided that such legend shall be removed and such
stop-transfer instructions lifted when and as contemplated by Section 1.5(c)
hereof.
Section 3.7 ACCESS TO INFORMATION. (a) The Stockholder understands and is
aware of all the risk factors related to an investment in the shares of
WasteMasters Common Stock issuable pursuant to the terms of this Agreement, (b)
the Stockholder or its attorneys or advisors have carefully reviewed this
Agreement and have been granted the opportunity to ask questions of, and receive
answers from, representatives of WasteMasters concerning the terms and
conditions of the investment in the shares of WasteMasters Common Stock issuable
pursuant to the terms of this Agreement and to obtain any additional information
which such Stockholder deems necessary, (c) the Stockholder's knowledge and
experience in financial and business matters is such that the Stockholder is
capable of evaluating the risks of the investment in the shares of WasteMasters
Common Stock issuable pursuant to the terms of this Agreement and (d) in making
its decision to approve the transactions contemplated hereby and to exchange its
shares of Company Common Stock for shares of WasteMasters Common Stock pursuant
to this Agreement, the Stockholder has relied upon the independent investigation
made by such Stockholder and, to the extent believed by the Stockholder to be
appropriate, such Stockholder's representatives, including such Stockholder's
own professional, tax and other advisors.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF WASTEMASTERS
WasteMasters represents and warrants to the Stockholder as follows:
Section 4.1 ORGANIZATION. WasteMasters is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and corporate authority to
own, lease and operate its properties and to carry on its business as now being
conducted, except where the failure to be so organized, existing and in good
standing or to have such power and authority would not have a WasteMasters
Material Adverse Effect (as hereinafter defined). As used in this Agreement, any
reference to any event, change or effect having a "WasteMasters Material Adverse
Effect" means such event, change or effect is, or is likely to be, materially
adverse to (a) the business, properties, financial condition or results of
operations of WasteMasters and its Subsidiaries, taken as a whole or (b) the
ability of WasteMasters to consummate the transactions contemplated hereby.
Section 4.2 AUTHORITY. WasteMasters has the requisite corporate power and
corporate authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by WasteMasters and the consummation by WasteMasters of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of WasteMasters and no other corporate proceedings
on the part of WasteMasters are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by WasteMasters and, assuming that this Agreement
constitutes a valid and binding obligation of the other parties hereto,
constitutes a valid and binding obligation of WasteMasters, enforceable against
WasteMasters in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law).
Section 4.3 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for filings,
permits, authorizations, consents and approvals as may be required under, and
other applicable requirements of, the Securities Act, the execution, delivery or
performance of this Agreement by WasteMasters, the consummation by WasteMasters
of the transactions contemplated hereby and compliance by WasteMasters with any
of the provisions hereof shall not (a) conflict with or result in any breach of
any provision of the organizational documents of WasteMasters, (b) require any
filing by WasteMasters or any of its Subsidiaries with, or any permit,
authorization, consent or approval to be obtained by WasteMasters or any of its
Subsidiaries of, any Governmental Entity (except where the failure to obtain
such permits, authorizations, consents or approvals or to make such filings
would not have a WasteMasters Material Adverse Effect), (c) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time, or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, any of the terms, conditions or provisions of any
Contract to which WasteMasters or any of its Subsidiaries is a party or by which
any of them or any of their properties or assets may be bound or affected or (d)
violate any order, writ, injunction, decree, statute, ordinance, rule or
regulation applicable to WasteMasters or any of its Subsidiaries, except, in the
case of clause (c) or (d), for violations, breaches, defaults, terminations,
cancellations or accelerations which would not have a WasteMasters Material
Adverse Effect.
Section 4.5 BROKERS OR FINDERS. Neither WasteMasters nor any of its
Subsidiaries has any liability to any agent, broker, investment banker,
financial advisor or other firm or person for any broker's or finder's fee or
any other commission or similar fee in connection with any of the transactions
contemplated by this Agreement.
Section 4.6 LEGAL PROCEEDINGS. Except as disclosed prior to the date
hereof, and in public filings; (i) no litigation, investigation of which
WasteMasters has knowledge or proceeding of or before any arbitrator or
Governmental Entity has been commenced and is pending or, to the knowledge of
WasteMasters, is threatened by or against WasteMasters or any of its
Subsidiaries or against any of their respective properties or assets which would
have, individually or in the aggregate, a WasteMasters Material Adverse Effect;
and (ii) there are no judgments, injunctions, decrees, orders or other
determinations of an arbitrator or Governmental Entity applicable to the
WasteMasters or any of its Subsidiaries or any of their respective properties or
assets which would have, individually or in the aggregate, a WasteMasters
Material Adverse Effect.
Section 4.7 COMPLIANCE WITH LAWS. Except as disclosed prior to the date
hereof, and in public filings, each of WasteMasters and its Subsidiaries is in
compliance in all respects with all laws, statutes, orders, rules, regulations,
ordinances and judgments of any Governmental Entity, holds all Permits that are
necessary to the conduct of its business or the ownership of its properties, and
is in compliance with each such Permit, except where the failure to so comply
with an applicable law or hold such Permits would not have a WasteMasters
Material Adverse Effect.
Section 4.8 INVESTMENT INTENTION. WasteMasters is acquiring the Company
Shares pursuant to the terms of this Agreement for investment solely for
WasteMasters own account and not with a view to or for resale in connection with
the distribution or other disposition thereof except for such which are
permitted hereunder and under the Securities Act.
Section 4.9 FEDERAL SECURITIES LAW MATTERS. WasteMasters has been advised
that (a) neither the sale nor the offer of the Company Shares pursuant to the
terms of this Agreement has been registered under the Securities Act, (b) such
shares must be held and WasteMasters must continue to bear the economic risk of
the investment in the Company Shares pursuant to the terms of this Agreement
until such shares are subsequently registered under the Securities Act or an
exemption from registration is available, (c) a restrictive legend in the form
set forth in Section 1.5(c) hereof shall be placed on the certificates
representing the Company Shares pursuant to the terms of this Agreement and (d)
appropriate stop-transfer instructions shall be issued by the Company to its
stock transfer agent with respect to such shares; provided that such legend
shall be removed and such stop-transfer instructions lifted when and as
contemplated by Section 1.5(c) hereof.
Section 4.10 ACCESS TO INFORMATION. (a) WasteMasters understands and is
aware of all the risk factors related to an investment in the Company Shares
issuable pursuant to the terms of this Agreement, (b) WasteMasters or its
attorneys or advisors have carefully reviewed this Agreement and have been
granted the opportunity to ask questions of, and receive answers from,
representatives of the Company concerning the terms and conditions of the
investment in the Company Shares issuable pursuant to the terms of this
Agreement and to obtain any additional information which WasteMasters deems
necessary, (c) WasteMaster's knowledge and experience in financial and business
matters is such that WasteMaster's is capable of evaluating the risks of the
investment in the Company Shares issuable pursuant to the terms of this
Agreement and (d) in making its decision to approve the transactions
contemplated hereby and to exchange WasteMasters Common Stock for the Company
Shares pursuant to this Agreement, WasteMasters has relied upon the independent
investigation made by WasteMasters and, to the extent believed by WasteMasters
to be appropriate, WasteMaster's representatives, including WasteMaster's own
professional, tax and other advisors.
ARTICLE V
COVENANTS AND OTHER AGREEMENTS
Section 5.1 REASONABLE EFFORTS.
(a) Subject to the terms and conditions of this Agreement, each of the
parties hereto agrees to use its commercially reasonable efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement,
including, without limitation, (i) the preparation and filing of all applicable
forms under applicable laws, (ii) such actions as may be required to be taken
under applicable state securities or "blue sky" laws in connection with the
issuance of shares of WasteMasters Common Stock and contemplated hereby, (iii)
the preparation and filing of all other forms, registrations and notices
required to be filed to consummate the transactions contemplated by this
Agreement and the taking of such actions as are necessary to obtain any
requisite consents, approvals, authorizations or orders of any Governmental
Entity or third party and (iv) the satisfaction of all conditions to the
Closing.
(b) Each party shall promptly consult with the other with respect to and
provide any necessary information not subject to legal privilege with respect to
and provide the other (or its counsel) copies of, all filings made by such party
with any Governmental Entity or any other information supplied by such party to
a Governmental Entity in connection with this Agreement and the transactions
contemplated by this Agreement (except personal information with respect to
officers and directors). Each party hereto shall promptly inform the other of
any material communication from any Governmental Entity regarding any of the
transactions contemplated by this Agreement. If any party or affiliate thereof
receives a request for additional information or documentary material from any
such Governmental Entity with respect to the transactions contemplated by this
Agreement, then such party will endeavor in good faith to make, or cause to be
made, as soon as reasonably practicable and after consultation with the other
party, an appropriate response in compliance with such request.
(c) Notwithstanding the foregoing, nothing in this Agreement shall be
deemed to require WasteMasters to enter into any agreement with any Governmental
Entity or to consent to any order, decree or judgment requiring WasteMasters to
hold separate or divest, or to restrict the dominion or control of WasteMasters
or any of its affiliates over any other business of WasteMasters, its affiliates
or the Company and its Subsidiaries. In addition, no party hereto shall take any
action after the date hereof that could reasonably be expected to materially
delay the obtaining of, or result in not obtaining, any permission, approval or
consent from any Governmental Entity necessary to be obtained prior to the
Closing.
Section 5.2 FURTHER ASSURANCES. In the event that at any time after the
Closing Date any further action is necessary or desirable to carry out the
purposes of this Agreement, the Stockholder and WasteMasters shall take such
necessary action.
Section 5.3 LIMITED SURVIVAL OF WARRANTIES AND REPRESENTATIONS. The
warranties and representations contained in Articles III and IV shall survive
the Closing for a period of 12 months following the date of this Agreement,
after which they shall automatically expire and be of no further force or
effect.
ARTICLE VI
MISCELLANEOUS
Section 6.1 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given on the date delivered if delivered
personally (including by reputable overnight courier), on the date transmitted
if sent by facsimile (which is confirmed), or mailed by registered or certified
mail (return receipt requested) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to WasteMasters, to:
WasteMasters, Inc.
1230 Peachtree, Suite 2545
Atlanta, Georgia 30309
Facsimile: 404-888-9447
(b) if to the Stockholder, to:
David Thomas
11130 Croom Rital Road
Brooksville, FL 34602
Section 6.2 INTERPRETATION. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement they shall be deemed to be
followed by the words "without limitation." The phrase "made available" in this
Agreement shall mean that the information referred to has been made available if
requested by the party to whom such information is to be made available. The
phrases "the date of this Agreement," "the date hereof" and terms of similar
import, unless the context otherwise requires, shall be deemed to refer to April
23, 1998.
Section 6.3 COUNTERPARTS. This Agreement may be executed in counterparts,
all of which shall be considered one and the same agreement and shall become
effective when a counterpart has been signed by each of the parties and
delivered to each of the other parties, it being understood that all parties
need not sign the same counterpart.
Section 6.4 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement
(including the documents and the instruments referred to herein) (a) constitute
the entire agreement and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof
and thereof, and (b) are not intended to confer upon any person other than the
parties hereto and thereto any rights or remedies hereunder or thereunder.
Section 6.5 GOVERNING LAW. This Agreement shall be governed and construed
in accordance with the laws of the State of Florida without regard to any
applicable conflicts of law principles.
Section 6.6 SPECIFIC PERFORMANCE. The parties hereto agree that if any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof (without the requirement of the posting of any bond or other security) as
the sole and exclusive remedy for breach hereof.
Section 6.7 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
Section 6.8 SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated thereby is not affected in any manner
adverse to any party. Upon any such determination, the parties shall negotiate
in good faith in an effort to agree upon a suitable and equitable substitute
provision to effect original intent of the parties.
Section 6.9 FEES AND EXPENSES. Whether or not the transactions contemplated
hereby are consummated, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by
WasteMasters, if incurred by WasteMasters, or any of its affiliates (other than
the Stockholder and its affiliates), or by the Stockholder, if incurred by the
Stockholder, its affiliates, or the Stockholder.
Section 6.10 JURISDICTION. The Stockholder and WasteMasters hereby (i)
consents to be subject to jurisdiction of the United States District Court for
the Southern District of Florida and the jurisdiction of the courts of the State
of Florida in any suit, action or proceeding seeking to enforce any provision
of, or based on any matter arising out of or in connection with, this Agreement
or the transactions contemplated hereby, (ii) agrees that it will not attempt to
deny or defeat such personal jurisdiction by motion or other request for leave
from any such court, (iii) agrees that it will not bring any action relating to
this Agreement or the transactions contemplated hereby in any court other than
the United States District Court for the Southern District of Florida or the
courts of the State of Florida, (iv) irrevocably waives (A) any objection that
it may have or hereafter have to the laying of venue of any such suit, action or
proceeding in such court and (B) any claim that any such suit, action or
proceeding in any such court has been brought in an inconvenient forum and (v)
irrevocably consents to the service of any and all process in any such suit,
action or proceeding by the delivery of such process to such party at the
address and in the manner provided in Section 6.1 hereof.
(Signatures on following page)
<PAGE>
IN WITNESS WHEREOF, WasteMasters and the Stockholder have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
WASTEMASTERS, INC.
/s/R.D. Sterritt, Jr.
--------------------------------------
Name: R. D. Sterritt, Jr.
Title: Chief Executive Officer
THE STOCKHOLDER
/s/David Thomas
--------------------------------------
DAVID THOMAS
Exhibit 99.5
THIS WARRANT AND THE SHARES OF COMMON STOCK TRANSFERABLE UPON THE EXERCISE
HEREOF HAVE BEEN ISSUED AND SOLD WITHOUT REGISTRATION IN RELIANCE UPON
EXEMPTIONS FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT")
AND THE APPLICABLE SECURITIES LAWS OF OTHER JURISDICTIONS. SUCH SECURITIES MAY
NOT BE OFFERED FOR SALE, SOLD OR TRANSFERRED OTHER THAN (i) PURSUANT TO AN
EFFECTIVE REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE 1933 ACT AND THE
APPLICABLE SECURITIES LAWS OF ANY OTHER JURISDICTION, AND (ii) UPON RECEIPT BY
THE ISSUER OF EVIDENCE REASONABLY SATISFACTORY TO IT OF COMPLIANCE WITH THE 1933
ACT AND THE APPLICABLE SECURITIES LAWS OF ANY OTHER JURISDICTION. THE ISSUER
SHALL BE ENTITLED TO REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT
WITH RESPECT TO COMPLIANCE WITH SUCH LAWS.
WARRANT TO PURCHASE 500,000 SHARES OF
COMMON STOCK
OF
WASTEMASTERS, INC.
Not Transferable or Exercisable Except
Upon Conditions Herein Specified
Void After 5:00 O'clock p.m.,
Dallas, Texas Time, April 23, 2000
WASTEMASTERS, INC., a Maryland corporation (the "COMPANY") hereby grants to T.
ALEC RIGBY, an individual (hereinafter the "Holder"), a Warrant to purchase FIVE
HUNDRED THOUSAND (500,000) restricted shares (the "Shares") of the common stock
of the Company (the "Common Stock") at the purchase price of Five Dollars
($5.00) per Share (the "Exercise Price") (the number of Shares and Exercise
Price being subject to adjustment, as hereinafter provided) upon the terms and
conditions herein set forth.
1. EXERCISE OF WARRANT.
(a) Subject to subsection (b) of this Section 1, this Warrant may be
exercised upon presentation and surrender of this Warrant Certificate, with the
attached Purchase Form (Exhibit A) duly executed, at the principal office of the
Company, at 10254 Miller Road, Dallas, Texas 75238, or at such other place as
the Company may designate by notice to the Holder, together with a certified
bank or cashier's check payable to the order of WasteMasters, Inc. in the amount
of the Exercise Price times the number of Shares being purchased. This Warrant
may be exercised in whole or in part. In case of exercise hereof in part only,
the Company, upon surrender hereof, will deliver to the Holder a new Warrant
Certificate of like tenor entitling the Holder to purchase the number of Shares
as to which this Warrant has not been exercised.
(b) This Warrant to purchase the "unregistered," "restricted" common
stock of the Company may be exercised in whole or in part at any time prior to
5:00 o'clock p.m., Dallas, Texas time on April 23, 2000.
2. PURCHASED AND UNDERLYING SHARES.
(a) Upon surrender of this Warrant Certificate and payment of the
Exercise Price as aforesaid, the Company shall issue and cause to be delivered
with all reasonable dispatch to the Holder, a certificate or certificates for
the number of full shares of Common Stock comprising the applicable number of
Shares so purchased upon the exercise of this Warrant (the "Purchased Shares"),
together with cash, as provided in Section 9 hereof, in respect of any
fractional Shares otherwise issuable upon such surrender. Such certificate or
certificates shall be deemed to have been issued, and any person named therein
shall be deemed to have become a holder of record of such Shares, as of the date
of surrender of this Warrant and payment of the Exercise Price, as aforesaid,
notwithstanding that the certificates representing such Shares shall not
actually have been delivered or that the transfer shall not have been reflected
on the stock transfer books of the Company.
(b) The Company shall at all times keep reserved so long as this
Warrant remains outstanding, out of its authorized shares of Common Stock, such
number of Shares as shall continue to be subject to purchase under this Warrant
(the "Underlying Shares"). Every transfer agent for the Common Stock issuable
upon the exercise of this Warrant shall be irrevocably authorized and directed
at all times to reserve such number of authorized Shares as shall be requisite
for such purpose.
3. RIGHTS AND OBLIGATIONS OF WARRANT HOLDER.
(a) The Holder of this Warrant shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Company, either at law or in
equity. The rights of the Holder of this Warrant are limited to those expressed
herein and the Holder of this Warrant, by its acceptance hereof, consents to and
agrees to be bound by and to comply with all the provisions of this Warrant
Certificate, including, without limitation, all the obligations imposed upon the
Holder by Section 5 hereof.
(b) The Holder of this Warrant, as such, shall not be entitled to vote
or receive dividends or to be deemed the holder of Shares for any purpose, nor
shall anything contained in this Warrant Certificate, as such, confer upon the
Holder any of the rights of a shareholder of the Company including, but not
limited to, any right to vote, give or withhold consent to any action by the
Company, whether upon any recapitalization, issue of stock, reclassification of
stock, consolidation, merger, share exchange, conveyance or otherwise, receive
notice of meetings or other action affecting shareholders (except for the
notices provided for herein), receive dividends, receive subscription rights, or
any other right until this Warrant shall have been exercised and the Holder
shall have become the record holder of the Shares, as provided herein.
4. PURCHASED SHARES. The Company covenants and agrees that all Purchased
Shares to be delivered upon proper exercise of this Warrant shall be recorded on
the books of the Company in the name of the Holder and shall be duly and validly
authorized and issued, fully paid and non-assessable, and free from all
preemptive rights, taxes (other than transfer taxes), liens, charges and
security interests created by the Company with respect to the issuance thereof.
5. DISPOSITION OF WARRANTS OR SHARES.
(a) The Holder of this Warrant and/or any transferee hereof or of the
Purchased Shares by its acceptance hereof or thereof, hereby understands and
agrees that neither this Warrant nor the Purchased Shares have been registered
under either the 1933 Act or applicable state securities laws (the "State Acts")
and shall not be sold, pledged, hypothecated, donated or otherwise transferred
(whether or not for consideration) except upon the issuance to the Company of a
favorable opinion of counsel or submission to the Company of such evidence as
may be reasonably satisfactory to counsel to the Company, in each such case, to
the effect that any such transfer shall not be in violation of the 1933 Act and
the State Acts. It shall be a condition to the transfer of this Warrant that any
transferee hereof deliver to the Company its written agreement to accept and be
bound by all of the representations, terms and conditions of this Warrant
Certificate. This Warrant shall not be assignable except upon the express
written consent of the Company.
(b) The stock certificates of the Company that will evidence the
Purchased Shares may be imprinted with a conspicuous legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS THAT
TERM IS DEFINED IN RULE 144 UNDER THE ACT, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER THE ACT, AS AMENDED, AND IN COMPLIANCE WITH APPLICABLE
SECURITIES LAWS OF ANY STATE WITH RESPECT THERETO OR IN ACCORDANCE WITH AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER THAT AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND ALSO MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF BY THE HOLDER WITHOUT COMPLIANCE WITH THE
APPLICABLE SECURITIES AND EXCHANGE COMMISSION RULES AND REGULATIONS.
The Company has not agreed to register any of the Purchased Shares
for distribution in accordance with the provisions of the 1933 Act or the State
Acts. Except as otherwise set forth herein, the Company has not agreed to comply
with any exemption from registration under the 1933 Act or the State Acts for
the resale of such Shares. Hence, it is the understanding of the Holder that by
virtue of the provisions of certain rules respecting "restricted securities"
promulgated by the U.S. Securities and Exchange Commission, all or part of the
Purchased Shares may be required to be held indefinitely, unless and until
registered under the 1933 Act and the State Acts, or unless an exemption from
such registration is available (in which case the Holder may still be limited as
to the number of such Shares that may be sold).
6. REPRESENTATIONS.
(a) RISK FACTORS. The Holder understands and acknowledges that (i)
this Warrant and the Purchased Shares are unregistered, restricted securities
and are not readily marketable, (ii) the Company has not operated on a
profitable basis for several years and that there can be no assurance that it
will operate profitably in the future, and (iii) there is a significant degree
of risk in investing in the Shares. The Holder agrees that he must be able to
bear the economic risk of the loss of the entire investment in the Shares if he
exercises this Warrant.
(b) KNOWLEDGE AND EXPERIENCE; FINANCIAL CAPABILITY AND NET WORTH. The
Holder has (i) such knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of the investment in the
Shares, (ii) had such risks explained to the Holder and has determined that such
investment is suitable for the Holder in view of his financial circumstances and
available investment opportunities, (iii) sufficient net worth and income to
bear the economic risk of investment in the Purchased Shares, and (iv) no need
for liquidity of the investment and no reason to anticipate any change in the
Holder's financial circumstances which may cause or require any sale, transfer
or other distribution of the Purchased Shares.
(c) AVAILABLE INFORMATION. The Holder acknowledges that the Company
has provided him with access to such Company records and information regarding
historical and proposed operations as the Holder has requested and has answered
all of the Holder's inquiries in full.
(d) FURTHER INFORMATION. The Holder agrees that it shall be his
responsibility to request such information with respect to the Company as he and
his advisors deem appropriate to evaluate the risks and merits of investment in
the Purchased Shares at the time that the Holder exercises this Warrant.
7. ADJUSTMENTS. The number of Shares purchasable upon the exercise of this
Warrant, and the Exercise Price, shall be subject to adjustment from time to
time upon the occurrence of any of the events enumerated below at any time prior
to the exercise of this Warrant in full.
(a) In case the Company shall: (i) pay a dividend, or make a
distribution on the Common Stock, in shares of Common Stock or any other of its
capital stock, (ii) subdivide its outstanding shares of Common Stock into a
greater number of shares of Common Stock, (iii) combine its outstanding shares
of its capital stock into a smaller number of shares of Common Stock, or (iv)
issue, by reclassification of its shares of Common Stock, any shares of capital
stock (including any reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), the amount of Shares
purchasable upon the exercise of this Warrant immediately prior thereto shall be
adjusted so that the Holder shall be entitled to receive upon exercise of this
Warrant that number of Shares (or other capital stock of the Company) which the
Holder would have owned or would have been entitled to receive after the
happening of such event had the Holder exercised this Warrant immediately prior
to the record date, in the case of any such dividend, or the effective date, in
the case of any such subdivision, combination or reclassification. An adjustment
made pursuant to this subsection (a) shall be made whenever any of such events
shall occur, but shall become effective retroactively after such record date or
such effective date, as the case may be, as to any portion of this Warrant
exercised between such record date or effective date and the date of happening
of any such event.
(b) If the Company shall issue, by reorganization or reclassification
of its Common Stock (including any such reorganization or reclassification in
connection with a consolidation or merger of the Company with another
corporation, provided the Company is the surviving corporation) other securities
or property of the Company, the Holder shall thereafter have the right to
receive upon exercise of this Warrant the kind and number of shares of stock or
other securities or property which he would have been entitled to receive upon
the happening of any such reorganization or reclassification, had this Warrant
been exercised immediately prior thereto; and, in any case, appropriate
adjustment (as determined by the Board of Directors in good faith) shall be made
in the application of the provisions herein set forth with respect to rights and
interests thereafter of the Holder, to the end that the provisions set forth
herein shall thereafter be applicable, as near as reasonably practical, in
relation to any shares of stock or other securities or other property thereafter
deliverable upon the exercise of this Warrant. Any adjustment made pursuant to
this subparagraph (b) shall become effective retroactively to the effective date
of such reorganization or reclassification.
(c) If the Company shall issue, sell, grant or distribute to all or
substantially all holders of shares of Common Stock evidences of indebtedness,
any other securities of the Company (including, without limitation, rights,
Warrants, warrants or convertible or exchangeable securities entitling the
holders thereof to subscribe for, purchase, or convert or exchange securities
into, shares of Common Stock, whether or not immediately exercisable) or any
property or other assets (other than cash), and if such issuance, sale, grant or
distribution does not otherwise constitute an event requiring adjustment under
this Section 7 (any such nonexcluded event being herein called a "Special
Dividend"), then, effective upon the record date of the Special Dividend, the
Holder shall be entitled to receive, upon exercise of this Warrant (and the
payment of the consideration, if any, payable to the Company for such Special
Dividend under the terms of its issuance, sale, grant or distribution), the
Special Dividend which the Holder would have been entitled to receive if this
Warrant had been exercised immediately prior to the record date of the Special
Dividend.
(d) In case the Company shall make a distribution to all holders of
the Common Stock of stock of a subsidiary of the Company or securities
convertible into or exercisable for such stock, then in lieu of an adjustment in
the Exercise Price or the number of Shares purchasable upon the exercise of the
Warrant, the Holder, upon the exercise of this Warrant at any time after such
distribution, shall be entitled to receive from the Company, such subsidiary or
both, as the Company shall determine, the stock or other securities to which
such Holder would have been entitled if such Holder had exercised this Warrant
immediately prior thereto, all subject to further adjustment as provided in this
Section 7, and the Company shall reserve, for the life of this Warrant, such
securities of such subsidiary.
(e) If there shall be any consolidation or merger to which the Company
is a party, other than a consolidation or a merger in which the Company is a
continuing corporation and which does not result in any reclassification of, or
change (other than a change in respect of which an adjustment is required under
any other provision of this Section 7 or a change in par value) in, outstanding
shares of Common Stock, or any sale or conveyance of the property of the Company
as an entirety or substantially as an entirety (any such event being called a
"Capital Reorganization"), then, effective upon the effective date of such
Capital Reorganization, the Holder shall have the right to purchase, upon
exercise of this Warrant, the kind and amount of shares of stock and other
securities and property (including cash) which the Holder would have owned or
have been entitled to receive after such Capital Reorganization if this Warrant
had been exercised immediately prior to such Capital Reorganization (assuming
the Holder failed to exercise his rights of election, if any, as to the kind or
amount of securities, cash or other property receivable upon such Capital
Reorganization). As a condition to effecting any Capital Reorganization, the
Company or the successor or surviving corporation, as the case may be, shall
execute and deliver to the Holder and to the Company an agreement as to the
Holder's rights in accordance with this Section 7, providing for subsequent
adjustments as nearly equivalent as may be practicable to the adjustments
provided for in this Section 7. The provisions of this subparagraph shall
similarly apply to successive Capital Reorganizations.
(f) After any adjustment of the number or kind of shares or other
securities or property issuable upon exercise of this Warrant pursuant to the
provisions of this Section, the Exercise Price shall also be adjusted so that
the aggregate Exercise Price thereafter payable upon exercise of this Warrant
shall be equal to the aggregate Exercise Price which would have been payable
upon exercise of this Warrant immediately prior to such adjustment.
(g) No adjustment shall be required unless such adjustment would
require an increase or decrease of at least one percent (1%) in the number of
the Underlying Shares; provided, however, that any adjustments which by reason
of this subsection are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 7 shall be made to the nearest one-hundredth of a Share.
(h) Whenever the number of Shares purchasable hereunder is adjusted as
herein provided, the Company shall cause to be mailed to the Holder in
accordance with the provisions of this Section a notice (i) stating that the
number of Shares purchasable upon exercise of this Warrant has been adjusted,
(ii) setting forth the adjusted number of Underlying Shares, (iii) setting forth
the adjusted Exercise Price, and (iv) showing in reasonable detail the
computations and the facts, including the amount of consideration, if any,
received or deemed to have been received by the Company, upon which such
adjustments are based. Such notice shall be conclusive as to the correctness of
the adjustment of the Underlying Shares and Exercise Price unless objected to by
the Holder within 30 days following the receipt of such notice by such Holder.
If the Holder objects to the adjustment as set forth in such notice a
representative of the Company shall meet with the Holder at such mutually
convenient time or times as shall be mutually acceptable to the parties in order
to agree as to the correct adjustment. If the Company and the Holder are unable
to agree as to the correctness of the adjustment, the matter shall be submitted
to a mutually acceptable firm of independent certified public accountants, whose
determination as to the correct adjustment shall be conclusive and binding upon
the Company and the Holder.
(i) The Company shall cause written notice of any Special Dividend to
be mailed to the Holder at the earliest practicable time (and, in any event, not
less than 10 days before the date fixed as a record date or the date of closing
the transfer books for the determination of the shareholders entitled to such
Special Dividend.)
8. LIQUIDATION OR DISSOLUTION. In case the Company dissolves or liquidates,
the Company shall make appropriate provision so that the securities or property,
as the case may be, which would be received by the Holder upon the exercise of
this Warrant at the time immediately prior to the effective date of such
dissolution or liquidation, will be available to the Holder from the liquidating
trust; provided that the Holder shall make the determination as to whether to
exercise this Warrant within six months of the effective date of dissolution or
liquidation, at which time this Warrant shall be terminated and of no further
force or effect and the Holder's rights under this Warrant shall be
automatically terminated.
9. FRACTIONAL SHARES. No fraction of a Share shall be required to be
delivered upon the exercise of this Warrant or any portion hereof. If any
fractional interest in a Share shall be deliverable upon the exercise of this
Warrant, the Company shall make an adjustment therefor in cash equal to such
fraction multiplied by the Current Market Price of the Shares on the business
day next preceding the day of exercise. For purposes of this Warrant, the
"Current Market Price" per share of Common Stock at any date shall be (i) if the
shares of Common Stock are listed on any national securities exchange, the daily
closing price on the date of determination; (ii) if the shares of Common Stock
are not listed on any national securities exchange but are quoted or reported on
the National Association of Securities Dealers, Inc., Automated Quotation System
("NASDAQ"), the last quoted price or, if not quoted, the average of the high bid
and low asked price as reported by NASDAQ, as the case may be; and (iii) if the
shares of Common Stock are neither listed on any national securities exchange
nor quoted or reported on NASDAQ, the closing bid price in the over-the-counter
market as furnished by any NASDAQ member firm that is selected from time to time
by the Company.
10. NO IMPAIRMENT. The Company shall not by any action including, without
limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the
rights of the Holder against impairment. Without limiting the generality of the
foregoing, the Company will (a) not increase the par value of any shares of
Common Stock receivable upon the exercise of this Warrant above the amount
payable therefor upon such exercise immediately prior to such increase in par
value, and (b) take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable
shares of Common Stock upon the exercise of this Warrant.
11. REMEDIES. The Company stipulates that the remedies at law of the Holder
in the event of any default or threatened default by the Company in the
performance of or compliance with any of the terms of this Warrant are not and
will not be adequate and that, without limiting any other remedy available at
law, such terms may be specifically enforced by a decree for the specific
performance of any agreement contained herein or by an injunction against a
violation of any of the terms hereof. The rights and remedies of the Holder are
cumulative and not exclusive of any rights or remedies which the Holder might
otherwise have.
12. LOSS OR DESTRUCTION. Upon receipt of evidence satisfactory to the
Company of the loss, theft, mutilation or destruction of this Warrant
Certificate, the Company shall, upon its receipt of an indemnity agreement or
bond reasonably satisfactory in form, substance and amount to the Company or, in
the case of any such mutilation, upon surrender and cancellation of this Warrant
Certificate, the Company at its expense will execute and deliver to the Holder,
in lieu thereof, a new Warrant Certificate of like tenor.
13. SURVIVAL. The various rights and obligations of the Holder hereof as
set forth herein shall survive the exercise of this Warrant at any time or from
time to time and the surrender of this Warrant Certificate.
14. NOTICES. Whenever any notice, payment of any purchase price or other
communication (any such notice, payment or other communication, a "Delivery") is
required to be given or delivered under the terms of this Warrant, it shall be
in writing and delivered by hand delivery or Federal Express or registered or
certified United States mail, postage prepaid and return receipt requested, and
will be deemed to have been given or delivered on the date such notice, purchase
price or other communication is so delivered. Any Delivery to the Company, shall
be addressed to 10254 Miller Road, Dallas, Texas 75238, or to such other address
as the Company may hereafter designate to the Holder in writing; any Delivery to
the Holder shall be addressed to such address as the Holder may hereafter
designate to the Company in writing.
15. CHANGE; WAIVER. Neither this Warrant nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power.
16. COVENANTS TO BIND SUCCESSOR AND ASSIGNS. The terms of this Warrant
shall bind the successors and permitted assigns of the Holder and the Company.
17. SEVERABILITY. In case any one or more of the provisions contained in
this Warrant shall be invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
WASTEMASTERS, INC.,
A MARYLAND CORPORATION
By:/s/R. Dale Sterritt, Jr.
-------------------------------------------
R. Dale Sterritt, Jr.
Chairman, President & CEO
Date Signed: April 23, 1998
<PAGE>
EXHIBIT A
PURCHASE FORM
TO: WASTEMASTERS, INC.
The undersigned hereby irrevocably elects to exercise the Warrant
evidenced by the attached Warrant Certificate to the extent of
___________________ (__________) shares of the Common Stock of WASTEMASTERS,
INC., and hereby makes payment of ________________________________ ($__________)
in accordance with the provisions of Section 1 of the Warrant Certificate in
payment of the purchase price thereof.
Name of Holder:
---------------------------------------
(Please type or print)
Signature of Holder:
------------------------------------
Address of Holder:
--------------------------------------
Exhibit 99.6
WARRANT CERTIFICATE
THIS WARRANT AND THE SHARES OF COMMON STOCK TRANSFERABLE UPON THE EXERCISE
HEREOF HAVE BEEN ISSUED AND SOLD WITHOUT REGISTRATION IN RELIANCE UPON
EXEMPTIONS FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT")
AND THE APPLICABLE SECURITIES LAWS OF OTHER JURISDICTIONS. SUCH SECURITIES MAY
NOT BE OFFERED FOR SALE, SOLD OR TRANSFERRED OTHER THAN (i) PURSUANT TO AN
EFFECTIVE REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE 1933 ACT AND THE
APPLICABLE SECURITIES LAWS OF ANY OTHER JURISDICTION, AND (ii) UPON RECEIPT BY
THE ISSUER OF EVIDENCE REASONABLY SATISFACTORY TO IT OF COMPLIANCE WITH THE 1933
ACT AND THE APPLICABLE SECURITIES LAWS OF ANY OTHER JURISDICTION. THE ISSUER
SHALL BE ENTITLED TO REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT
WITH RESPECT TO COMPLIANCE WITH SUCH LAWS.
WARRANT TO PURCHASE 500,000 SHARES OF
COMMON STOCK
OF
WASTEMASTERS, INC.
Not Transferable or Exercisable Except
Upon Conditions Herein Specified
Void After 5:00 O'clock p.m.,
Dallas, Texas Time, April 23, 2000
WASTEMASTERS, INC., a Maryland corporation (the "COMPANY") hereby grants to T.
ALEC RIGBY, an individual (hereinafter the "Holder"), a Warrant to purchase FIVE
HUNDRED THOUSAND (500,000) restricted shares (the "Shares") of the common stock
of the Company (the "Common Stock") at the purchase price of Fifteen Dollars
($15.00) per Share (the "Exercise Price") (the number of Shares and Exercise
Price being subject to adjustment, as hereinafter provided) upon the terms and
conditions herein set forth.
1. EXERCISE OF WARRANT.
(a) Subject to subsection (b) of this Section 1, this Warrant may be
exercised upon presentation and surrender of this Warrant Certificate, with the
attached Purchase Form (Exhibit A) duly executed, at the principal office of the
Company, at 10254 Miller Road, Dallas, Texas 75238, or at such other place as
the Company may designate by notice to the Holder, together with a certified
bank or cashier's check payable to the order of WasteMasters, Inc. in the amount
of the Exercise Price times the number of Shares being purchased. This Warrant
may be exercised in whole or in part. In case of exercise hereof in part only,
the Company, upon surrender hereof, will deliver to the Holder a new Warrant
Certificate of like tenor entitling the Holder to purchase the number of Shares
as to which this Warrant has not been exercised.
(b) This Warrant to purchase the "unregistered," "restricted" common
stock of the Company may be exercised in whole or in part at any time prior to
5:00 o'clock p.m., Dallas, Texas time on April 23, 2000.
2. PURCHASED AND UNDERLYING SHARES.
(a) Upon surrender of this Warrant Certificate and payment of the
Exercise Price as aforesaid, the Company shall issue and cause to be delivered
with all reasonable dispatch to the Holder, a certificate or certificates for
the number of full shares of Common Stock comprising the applicable number of
Shares so purchased upon the exercise of this Warrant (the "Purchased Shares"),
together with cash, as provided in Section 9 hereof, in respect of any
fractional Shares otherwise issuable upon such surrender. Such certificate or
certificates shall be deemed to have been issued, and any person named therein
shall be deemed to have become a holder of record of such Shares, as of the date
of surrender of this Warrant and payment of the Exercise Price, as aforesaid,
notwithstanding that the certificates representing such Shares shall not
actually have been delivered or that the transfer shall not have been reflected
on the stock transfer books of the Company.
(b) The Company shall at all times keep reserved so long as this
Warrant remains outstanding, out of its authorized shares of Common Stock, such
number of Shares as shall continue to be subject to purchase under this Warrant
(the "Underlying Shares"). Every transfer agent for the Common Stock issuable
upon the exercise of this Warrant shall be irrevocably authorized and directed
at all times to reserve such number of authorized Shares as shall be requisite
for such purpose.
3. RIGHTS AND OBLIGATIONS OF WARRANT HOLDER.
(a) The Holder of this Warrant shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Company, either at law or in
equity. The rights of the Holder of this Warrant are limited to those expressed
herein and the Holder of this Warrant, by its acceptance hereof, consents to and
agrees to be bound by and to comply with all the provisions of this Warrant
Certificate, including, without limitation, all the obligations imposed upon the
Holder by Section 5 hereof.
(b) The Holder of this Warrant, as such, shall not be entitled to vote
or receive dividends or to be deemed the holder of Shares for any purpose, nor
shall anything contained in this Warrant Certificate, as such, confer upon the
Holder any of the rights of a shareholder of the Company including, but not
limited to, any right to vote, give or withhold consent to any action by the
Company, whether upon any recapitalization, issue of stock, reclassification of
stock, consolidation, merger, share exchange, conveyance or otherwise, receive
notice of meetings or other action affecting shareholders (except for the
notices provided for herein), receive dividends, receive subscription rights, or
any other right until this Warrant shall have been exercised and the Holder
shall have become the record holder of the Shares, as provided herein.
4. PURCHASED SHARES. The Company covenants and agrees that all Purchased
Shares to be delivered upon proper exercise of this Warrant shall be recorded on
the books of the Company in the name of the Holder and shall be duly and validly
authorized and issued, fully paid and non-assessable, and free from all
preemptive rights, taxes (other than transfer taxes), liens, charges and
security interests created by the Company with respect to the issuance thereof.
5. DISPOSITION OF WARRANTS OR SHARES.
(a) The Holder of this Warrant and/or any transferee hereof or of the
Purchased Shares by its acceptance hereof or thereof, hereby understands and
agrees that neither this Warrant nor the Purchased Shares have been registered
under either the 1933 Act or applicable state securities laws (the "State Acts")
and shall not be sold, pledged, hypothecated, donated or otherwise transferred
(whether or not for consideration) except upon the issuance to the Company of a
favorable opinion of counsel or submission to the Company of such evidence as
may be reasonably satisfactory to counsel to the Company, in each such case, to
the effect that any such transfer shall not be in violation of the 1933 Act and
the State Acts. It shall be a condition to the transfer of this Warrant that any
transferee hereof deliver to the Company its written agreement to accept and be
bound by all of the representations, terms and conditions of this Warrant
Certificate. This Warrant shall not be assignable except upon the express
written consent of the Company.
(b) The stock certificates of the Company that will evidence the
Purchased Shares may be imprinted with a conspicuous legend in substantially the
following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS THAT
TERM IS DEFINED IN RULE 144 UNDER THE ACT, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FILED UNDER THE ACT, AS AMENDED, AND IN COMPLIANCE WITH APPLICABLE
SECURITIES LAWS OF ANY STATE WITH RESPECT THERETO OR IN ACCORDANCE WITH AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER THAT AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND ALSO MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF BY THE HOLDER WITHOUT COMPLIANCE WITH THE
APPLICABLE SECURITIES AND EXCHANGE COMMISSION RULES AND REGULATIONS.
The Company has not agreed to register any of the Purchased Shares for
distribution in accordance with the provisions of the 1933 Act or the State
Acts. Except as otherwise set forth herein, the Company has not agreed to comply
with any exemption from registration under the 1933 Act or the State Acts for
the resale of such Shares. Hence, it is the understanding of the Holder that by
virtue of the provisions of certain rules respecting "restricted securities"
promulgated by the U.S. Securities and Exchange Commission, all or part of the
Purchased Shares may be required to be held indefinitely, unless and until
registered under the 1933 Act and the State Acts, or unless an exemption from
such registration is available (in which case the Holder may still be limited as
to the number of such Shares that may be sold).
6. REPRESENTATIONS.
(a) RISK FACTORS. The Holder understands and acknowledges that (i)
this Warrant and the Purchased Shares are unregistered, restricted securities
and are not readily marketable, (ii) the Company has not operated on a
profitable basis for several years and that there can be no assurance that it
will operate profitably in the future, and (iii) there is a significant degree
of risk in investing in the Shares. The Holder agrees that he must be able to
bear the economic risk of the loss of the entire investment in the Shares if he
exercises this Warrant.
(b) KNOWLEDGE AND EXPERIENCE; FINANCIAL CAPABILITY AND NET WORTH. The
Holder has (i) such knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of the investment in the
Shares, (ii) had such risks explained to the Holder and has determined that such
investment is suitable for the Holder in view of his financial circumstances and
available investment opportunities, (iii) sufficient net worth and income to
bear the economic risk of investment in the Purchased Shares, and (iv) no need
for liquidity of the investment and no reason to anticipate any change in the
Holder's financial circumstances which may cause or require any sale, transfer
or other distribution of the Purchased Shares.
(c) AVAILABLE INFORMATION. The Holder acknowledges that the Company
has provided him with access to such Company records and information regarding
historical and proposed operations as the Holder has requested and has answered
all of the Holder's inquiries in full.
(d) FURTHER INFORMATION. The Holder agrees that it shall be his
responsibility to request such information with respect to the Company as he and
his advisors deem appropriate to evaluate the risks and merits of investment in
the Purchased Shares at the time that the Holder exercises this Warrant.
7. ADJUSTMENTS. The number of Shares purchasable upon the exercise of this
Warrant, and the Exercise Price, shall be subject to adjustment from time to
time upon the occurrence of any of the events enumerated below at any time prior
to the exercise of this Warrant in full.
(a) In case the Company shall: (i) pay a dividend, or make a
distribution on the Common Stock, in shares of Common Stock or any other of its
capital stock, (ii) subdivide its outstanding shares of Common Stock into a
greater number of shares of Common Stock, (iii) combine its outstanding shares
of its capital stock into a smaller number of shares of Common Stock, or (iv)
issue, by reclassification of its shares of Common Stock, any shares of capital
stock (including any reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), the amount of Shares
purchasable upon the exercise of this Warrant immediately prior thereto shall be
adjusted so that the Holder shall be entitled to receive upon exercise of this
Warrant that number of Shares (or other capital stock of the Company) which the
Holder would have owned or would have been entitled to receive after the
happening of such event had the Holder exercised this Warrant immediately prior
to the record date, in the case of any such dividend, or the effective date, in
the case of any such subdivision, combination or reclassification. An adjustment
made pursuant to this subsection (a) shall be made whenever any of such events
shall occur, but shall become effective retroactively after such record date or
such effective date, as the case may be, as to any portion of this Warrant
exercised between such record date or effective date and the date of happening
of any such event.
(b) If the Company shall issue, by reorganization or reclassification
of its Common Stock (including any such reorganization or reclassification in
connection with a consolidation or merger of the Company with another
corporation, provided the Company is the surviving corporation) other securities
or property of the Company, the Holder shall thereafter have the right to
receive upon exercise of this Warrant the kind and number of shares of stock or
other securities or property which he would have been entitled to receive upon
the happening of any such reorganization or reclassification, had this Warrant
been exercised immediately prior thereto; and, in any case, appropriate
adjustment (as determined by the Board of Directors in good faith) shall be made
in the application of the provisions herein set forth with respect to rights and
interests thereafter of the Holder, to the end that the provisions set forth
herein shall thereafter be applicable, as near as reasonably practical, in
relation to any shares of stock or other securities or other property thereafter
deliverable upon the exercise of this Warrant. Any adjustment made pursuant to
this subparagraph (b) shall become effective retroactively to the effective date
of such reorganization or reclassification.
(c) If the Company shall issue, sell, grant or distribute to all or
substantially all holders of shares of Common Stock evidences of indebtedness,
any other securities of the Company (including, without limitation, rights,
Warrants, warrants or convertible or exchangeable securities entitling the
holders thereof to subscribe for, purchase, or convert or exchange securities
into, shares of Common Stock, whether or not immediately exercisable) or any
property or other assets (other than cash), and if such issuance, sale, grant or
distribution does not otherwise constitute an event requiring adjustment under
this Section 7 (any such nonexcluded event being herein called a "Special
Dividend"), then, effective upon the record date of the Special Dividend, the
Holder shall be entitled to receive, upon exercise of this Warrant (and the
payment of the consideration, if any, payable to the Company for such Special
Dividend under the terms of its issuance, sale, grant or distribution), the
Special Dividend which the Holder would have been entitled to receive if this
Warrant had been exercised immediately prior to the record date of the Special
Dividend.
(d) In case the Company shall make a distribution to all holders of
the Common Stock of stock of a subsidiary of the Company or securities
convertible into or exercisable for such stock, then in lieu of an adjustment in
the Exercise Price or the number of Shares purchasable upon the exercise of the
Warrant, the Holder, upon the exercise of this Warrant at any time after such
distribution, shall be entitled to receive from the Company, such subsidiary or
both, as the Company shall determine, the stock or other securities to which
such Holder would have been entitled if such Holder had exercised this Warrant
immediately prior thereto, all subject to further adjustment as provided in this
Section 7, and the Company shall reserve, for the life of this Warrant, such
securities of such subsidiary.
(e) If there shall be any consolidation or merger to which the Company
is a party, other than a consolidation or a merger in which the Company is a
continuing corporation and which does not result in any reclassification of, or
change (other than a change in respect of which an adjustment is required under
any other provision of this Section 7 or a change in par value) in, outstanding
shares of Common Stock, or any sale or conveyance of the property of the Company
as an entirety or substantially as an entirety (any such event being called a
"Capital Reorganization"), then, effective upon the effective date of such
Capital Reorganization, the Holder shall have the right to purchase, upon
exercise of this Warrant, the kind and amount of shares of stock and other
securities and property (including cash) which the Holder would have owned or
have been entitled to receive after such Capital Reorganization if this Warrant
had been exercised immediately prior to such Capital Reorganization (assuming
the Holder failed to exercise his rights of election, if any, as to the kind or
amount of securities, cash or other property receivable upon such Capital
Reorganization). As a condition to effecting any Capital Reorganization, the
Company or the successor or surviving corporation, as the case may be, shall
execute and deliver to the Holder and to the Company an agreement as to the
Holder's rights in accordance with this Section 7, providing for subsequent
adjustments as nearly equivalent as may be practicable to the adjustments
provided for in this Section 7. The provisions of this subparagraph shall
similarly apply to successive Capital Reorganizations.
(f) After any adjustment of the number or kind of shares or other
securities or property issuable upon exercise of this Warrant pursuant to the
provisions of this Section, the Exercise Price shall also be adjusted so that
the aggregate Exercise Price thereafter payable upon exercise of this Warrant
shall be equal to the aggregate Exercise Price which would have been payable
upon exercise of this Warrant immediately prior to such adjustment.
(g) No adjustment shall be required unless such adjustment would
require an increase or decrease of at least one percent (1%) in the number of
the Underlying Shares; provided, however, that any adjustments which by reason
of this subsection are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Section 7 shall be made to the nearest one-hundredth of a Share.
(h) Whenever the number of Shares purchasable hereunder is adjusted as
herein provided, the Company shall cause to be mailed to the Holder in
accordance with the provisions of this Section a notice (i) stating that the
number of Shares purchasable upon exercise of this Warrant has been adjusted,
(ii) setting forth the adjusted number of Underlying Shares, (iii) setting forth
the adjusted Exercise Price, and (iv) showing in reasonable detail the
computations and the facts, including the amount of consideration, if any,
received or deemed to have been received by the Company, upon which such
adjustments are based. Such notice shall be conclusive as to the correctness of
the adjustment of the Underlying Shares and Exercise Price unless objected to by
the Holder within 30 days following the receipt of such notice by such Holder.
If the Holder objects to the adjustment as set forth in such notice a
representative of the Company shall meet with the Holder at such mutually
convenient time or times as shall be mutually acceptable to the parties in order
to agree as to the correct adjustment. If the Company and the Holder are unable
to agree as to the correctness of the adjustment, the matter shall be submitted
to a mutually acceptable firm of independent certified public accountants, whose
determination as to the correct adjustment shall be conclusive and binding upon
the Company and the Holder.
(i) The Company shall cause written notice of any Special Dividend to
be mailed to the Holder at the earliest practicable time (and, in any event, not
less than 10 days before the date fixed as a record date or the date of closing
the transfer books for the determination of the shareholders entitled to such
Special Dividend.)
8. LIQUIDATION OR DISSOLUTION. In case the Company dissolves or liquidates,
the Company shall make appropriate provision so that the securities or property,
as the case may be, which would be received by the Holder upon the exercise of
this Warrant at the time immediately prior to the effective date of such
dissolution or liquidation, will be available to the Holder from the liquidating
trust; provided that the Holder shall make the determination as to whether to
exercise this Warrant within six months of the effective date of dissolution or
liquidation, at which time this Warrant shall be terminated and of no further
force or effect and the Holder's rights under this Warrant shall be
automatically terminated.
9. FRACTIONAL SHARES. No fraction of a Share shall be required to be
delivered upon the exercise of this Warrant or any portion hereof. If any
fractional interest in a Share shall be deliverable upon the exercise of this
Warrant, the Company shall make an adjustment therefor in cash equal to such
fraction multiplied by the Current Market Price of the Shares on the business
day next preceding the day of exercise. For purposes of this Warrant, the
"Current Market Price" per share of Common Stock at any date shall be (i) if the
shares of Common Stock are listed on any national securities exchange, the daily
closing price on the date of determination; (ii) if the shares of Common Stock
are not listed on any national securities exchange but are quoted or reported on
the National Association of Securities Dealers, Inc., Automated Quotation System
("NASDAQ"), the last quoted price or, if not quoted, the average of the high bid
and low asked price as reported by NASDAQ, as the case may be; and (iii) if the
shares of Common Stock are neither listed on any national securities exchange
nor quoted or reported on NASDAQ, the closing bid price in the over-the-counter
market as furnished by any NASDAQ member firm that is selected from time to time
by the Company.
10. NO IMPAIRMENT. The Company shall not by any action including, without
limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the
rights of the Holder against impairment. Without limiting the generality of the
foregoing, the Company will (a) not increase the par value of any shares of
Common Stock receivable upon the exercise of this Warrant above the amount
payable therefor upon such exercise immediately prior to such increase in par
value, and (b) take all such action as may be necessary or appropriate in order
that the Company may validly and legally issue fully paid and nonassessable
shares of Common Stock upon the exercise of this Warrant.
11. REMEDIES. The Company stipulates that the remedies at law of the Holder
in the event of any default or threatened default by the Company in the
performance of or compliance with any of the terms of this Warrant are not and
will not be adequate and that, without limiting any other remedy available at
law, such terms may be specifically enforced by a decree for the specific
performance of any agreement contained herein or by an injunction against a
violation of any of the terms hereof. The rights and remedies of the Holder are
cumulative and not exclusive of any rights or remedies which the Holder might
otherwise have.
12. LOSS OR DESTRUCTION. Upon receipt of evidence satisfactory to the
Company of the loss, theft, mutilation or destruction of this Warrant
Certificate, the Company shall, upon its receipt of an indemnity agreement or
bond reasonably satisfactory in form, substance and amount to the Company or, in
the case of any such mutilation, upon surrender and cancellation of this Warrant
Certificate, the Company at its expense will execute and deliver to the Holder,
in lieu thereof, a new Warrant Certificate of like tenor.
13. SURVIVAL. The various rights and obligations of the Holder hereof as
set forth herein shall survive the exercise of this Warrant at any time or from
time to time and the surrender of this Warrant Certificate.
14. NOTICES. Whenever any notice, payment of any purchase price or other
communication (any such notice, payment or other communication, a "Delivery") is
required to be given or delivered under the terms of this Warrant, it shall be
in writing and delivered by hand delivery or Federal Express or registered or
certified United States mail, postage prepaid and return receipt requested, and
will be deemed to have been given or delivered on the date such notice, purchase
price or other communication is so delivered. Any Delivery to the Company, shall
be addressed to 10254 Miller Road, Dallas, Texas 75238, or to such other address
as the Company may hereafter designate to the Holder in writing; any Delivery to
the Holder shall be addressed to such address as the Holder may hereafter
designate to the Company in writing.
15. CHANGE; WAIVER. Neither this Warrant nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought. No failure or delay of the Holder in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power.
16. COVENANTS TO BIND SUCCESSOR AND ASSIGNS. The terms of this Warrant
shall bind the successors and permitted assigns of the Holder and the Company.
17. SEVERABILITY. In case any one or more of the provisions contained in
this Warrant shall be invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
WASTEMASTERS, INC.,
A MARYLAND CORPORATION
By:/s/R. Dale Sterritt, Jr.
----------------------------------------
R. Dale Sterritt, Jr.
Chairman, President & CEO
Date Signed: April 23, 1998
<PAGE>
EXHIBIT A
PURCHASE FORM
TO: WASTEMASTERS, INC.
The undersigned hereby irrevocably elects to exercise the Warrant
evidenced by the attached Warrant Certificate to the extent of
___________________ (__________) shares of the Common Stock of WASTEMASTERS,
INC., and hereby makes payment of ________________________________ ($__________)
in accordance with the provisions of Section 1 of the Warrant Certificate in
payment of the purchase price thereof.
Name of Holder:
---------------------------------------
(Please type or print)
Signature of Holder:
------------------------------------
Address of Holder:
--------------------------------------
Exhibit 99.7
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) promulgated under the Securities Exchange Act
of 1934, the undersigned agree to the joint filing of a Statement on Schedule
13D (including any and all amendments thereto) with respect to the shares of
Common Stock, $.001 par value per share, of Atlas Environmental, Inc., and
further agree that this Joint Filing Agreement be included as an Exhibit
thereto. In addition, each party to this Agreement expressly authorizes each
other party to this Agreement to file on its behalf any and all amendments to
such Statement.
Date: May 4, 1998 /S/ T. ALEC RIGBY
--------------------------------
T. Alec Rigby
Date: May 4, 1998 /S/ JOEL SILVERSTEIN
--------------------------------
Joel Silverstein
Date: May 4, 1998 /S/ DAVID THOMAS
--------------------------------
David Thomas
