EX-2.3 3 ex2-3.htm

 

Exhibit 2.3

 

EXECUTION VERSION

 

THIRD AMENDMENT TO MEMBERSHIP INTEREST PURCHASE AGREEMENT

 

BY AND AMONG

 

DOMINIC CAMPO AND SHARON CAMPO, AS THE MEMBERS,

 

STANDARD WASTE SERVICES, LLC, AS THE COMPANY

 

AND

 

TITAN TRUCKING, LLC, AS BUYER

 

 

 

DATED MAY 30, 2024

 

 

 

 
 

 

THIRD AMENDMENT TO MEMBERSHIP INTEREST PURCHASE AGREEMENT

 

THIS THIRD AMENDMENT TO MEMBERSHIP INTEREST PURCHASE AGREEMENT (the “Amendment”), dated as of May 30, 2024, is entered into by and among DOMINIC CAMPO and SHARON CAMPO (each a “Member” and “Seller” and collectively, the “Members” and “Sellers”), STANDARD WASTE SERVICES, LLC, a Michigan limited liability company (the “Company”), and TITAN TRUCKING, LLC, a Michigan limited liability company (“Buyer”).

 

RECITALS

 

WHEREAS, the Sellers and Buyer entered into a certain Membership Interest Purchase Agreement dated January 12, 2024, as amended by an Amendment to Membership Interest Purchase Agreement, dated February 21, 2024 as further amended by a Second Amendment to Membership Interest Purchase Agreement dated May 20, 2024 (collectively, the “Agreement”) for the sale and purchase all of the issued and outstanding membership interests of the Company (the “Membership Interests”);

 

WHEREAS, the Sellers and Buyer desire to amend the Agreement as provided in this Amendment.

 

NOW THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:

 

  1. The capitalized terms in this Amendment not defined herein shall be defined as provided in the Agreement. The following defined terms are amended or added as follows:

 

“Adjusted Purchase Price” means: (A) the Cash Consideration; (B) plus the Investment Shares; (C) plus the CapEx Amount, as determined pursuant to Section 2.4; (D) less the sum of (i) the amount of the Indebtedness, (ii) the amount of the Company Expenses, (iii) the amount of the Closing Deposit, (iv) the Note Amount and the Short Term Note Amount, in each case, as determined pursuant to Section 2.4; and (E) either plus the Working Capital Overage, if any, or less the Working Capital Underage, if any, in each case, as determined pursuant to Section 2.4.

 

“Note Amount” means $2,359,898.24, the principal amount of the Promissory Note.

 

“Preliminary Purchase Price” means: (A) the Cash Consideration; (B) plus the CapEx Amount, as estimated by the Seller Parties pursuant to Section 2.2(b); (C) less the sum of (i) the amount of the Indebtedness, (ii) the amount of the Company Expenses, (iii) the amount of the Closing Deposit, (iv) the Note Amount and the Short Term Note Amount, in each case, as estimated by the Seller Parties pursuant to Section 2.2(b), and (D) either plus the Working Capital Overage, if any, or less the Working Capital Underage, if any, in each case, as estimated by the Seller Parties pursuant to Section 2.2(b).

 

“Promissory Note” means that certain promissory note to be issued at the Closing from Buyer to Sellers.

 

“Security Agreement” means that certain security agreement from Buyer to Sellers securing Buyer’s obligations to Sellers under the Promissory Note and the Short Term Promissory Note.

 

“Short Term Promissory Note” means that certain promissory note to be issued at the Closing from Buyer to Sellers in the principal amount of $500,000.

 

 
 

 

“Working Capital” means, as of the Reference Time, collectible accounts receivable, inventory and prepaid items minus accounts payable and accrued expenses, in each case determined without giving effect to the transactions contemplated hereby.

 

2.Section 2.2(a) is amended and restated in its entirety as follows:

 

2.2Purchase Price.

 

(a) The purchase price payable by Buyer to Sellers for the Membership Interests (the “Purchase Price”) shall be the Investment Shares (including the Investment Shares representing the Extension Consideration) and an amount equal to:

 

(i) the Cash Consideration;

 

(ii) plus the CapEx Amount;

 

(iii) less the sum of:

 

(A) the amount of the Indebtedness (with long term debt to be such amounts as confirmed with the applicable lenders or creditors as provided in Section 3.2(i) below); and

 

(B) the amount of the Company Expenses; and

 

(C) the amount of the Closing Deposit; and

 

(D) the Note Amount; and

 

(E) the amount of the Short Term Promissory Note;

 

(iv) either plus the Working Capital Overage, if any, or less the Working Capital Underage, if any.

 

3.Section 2.3(a) is amended and restated in its entirety as follows:

 

Buyer shall pay to Sellers by wire transfer of immediately available funds to a bank account designated in writing by Sellers, and by delivery of the Promissory Note, the Short Term Promissory Note, the Preliminary Purchase Price, less the Indemnification Amount.

 

4.Section 3.2 is amended to add the Short Term Promissory Note as Buyer closing deliverables
   
5.References to eighteen (18) months in Section 9.3 shall be twelve (12) months.
   
  6. Company Expenses shall exclude $25,000 each of legal expenses and accounting expenses incurred by the Company since January 12, 2024 not to exceed a cumulative amount of $50,000.
   
7. Section 9.8 is amended and restated in its entirety as follows: “Indemnification Amount. If any Buyer Indemnitee is entitled to indemnification in accordance with this Article 9, such indemnification shall be satisfied (a) first, from the Indemnification Amount, and (b), thereafter, from the Seller Parties. After the twelve (12th) month anniversary of the Closing Date, Buyer will issue to Seller any then remaining Indemnification Amount, less the aggregate amount of claims timely made by Buyer Indemnitees pursuant to Article 9 that remain pending on such date.”

 

2
 

 

8.Any place in which May 20, 2024 is referenced in the Agreement and any and all documents executed and delivered thereunder shall by May 30, 2024.
   
9.This Amendment and the Agreement (including the Disclosure Schedules and the Exhibits attached hereto, which are deemed for all purposes to be part of this Agreement), the other documents delivered pursuant to this Amendment, the Agreement, and the Confidentiality Agreement, contain all of the terms, conditions and representations and warranties agreed upon or made by the Parties relating to the subject matter of this Agreement and the businesses and operations of the Company and supersede all prior and contemporaneous agreements, negotiations, correspondence, undertakings and communications of the Parties or their respective Representatives, whether oral or written, respecting such subject matter. Upon the Closing, the Confidentiality Agreement shall hereby automatically terminate without any further action by the Parties and shall be of no further force or effect.
   
10.This Amendment may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement. Counterparts may be delivered via facsimile, electronic mail (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
   
11.This Amendment and any claim or controversy hereunder shall be governed by and construed in accordance with the Laws of the State of Michigan without giving effect to the principles of conflict of laws thereof.
   
12.The Parties have participated jointly in the negotiation and drafting of this Amendment. In the event of an ambiguity or question of intent or interpretation arises, this Amendment shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Amendment.

 

[SIGNATURE PAGES FOLLOW]

 

3
 

  

IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement as of the date first above written.

 

  COMPANY:
   
  STANDARD WASTE SERVICES, LLC,
  a Michigan limited liability company
     
  By: /s/ Dominic Campo
  Name: Dominic Campo
  Title: Member
     
  By: /s/ Sharon Campo
  Name: Sharon Campo
  Title: Member

 

[Signature Page to Third Amendment to Membership Interest Purchase Agreement]

 

 
 

 

  MEMBER:
   
  /s/ Dominic Campo
  DOMINIC CAMPO
   
  /s/ Sharon Campo
  SHARON CAMPO

 

[Signature Page to Third Amendment to Membership Interest Purchase Agreement]

 

 
 

 

  BUYER:
   
  TITAN TRUCKING, LLC,
  a Michigan limited liability company
     
  By: /s/ Jeffrey J. Rizzo
  Name:

Jeffrey J. Rizzo

  Title: Chief Operating Officer

 

[Signature Page to Third Amendment to Membership Interest Purchase Agreement]