EFTA00586125.pdf

NOVEMBER 13, 2012 DRAFT PURCHASE AND SALE AGREEMENT AGREEMENT, dated as of November _, 2012, by and between FINANCIAL TRUST COMPANY, INC. a U.S. Virgin Islands corporation having an office at 6100 Red Hook Quarter, B3, St. Thomas, USVI 00802 ("Seller"), and [LEON BLACK OR BLACK FAMILY PARTNERSHIP], a having an office at 9 West 57'h Street, 43rd Floor, New York, NY 10019 ("Purchaser"). RECITALS: A. Seller is the holder of 13,350,205 shares of the Common Stock, $0.001 par value (the "ESWW Shares"), of Environmental Solutions Worldwide, Inc., a Florida corporation ("ESWW). B. Seller and Purchaser desire to provide for the purchase by Purchaser from Seller of the ESWW Shares upon and subject to the terms and conditions set forth herein. NOW, THEREFORE, the Parties agree as follows: I. Definitions. The terms defined or referenced in Appendix A to this Agreement, whenever used herein, shall have the meanings set forth or referenced therein for all purposes of this Agreement. 2. Purchase and Sale. Upon and subject to the terms and conditions set forth in this Agreement, Seller agrees to sell and assign to Purchaser, and Purchaser agrees to purchase from Seller, the ESWW Shares. 3. Purchase Price and Payment. 3.1 Purchase Price. The purchase price for the ESWW Shares shall be Five Million Dollars ($5,000,000) (the "Purchase Price"). 3.2 Payment. The Purchase Price shall be payable by Purchaser to Seller on the Closing Date by wire transfer of immediately available funds to an account designated in writing by Seller to Purchaser. 4. The Closing. 4.1 Closing. The closing of the sale and transfer of the Purchased Interests (the "Closing") shall take place on a Business Day (the "Closing Date") mutually agreed to by Seller and Purchaser which shall not in any event be later than November 21, 2012. 4.2 Closing Deliveries by Seller. Subject to the satisfaction, or the waiver by Seller, of the conditions set forth in Sections 6.1 and 6.3, at the Closing, Seller shall deliver to Purchaser certificates, together with accompanying stock powers or instruments of assignment, duly EFTA00586125 endorsed for transfer, representing 13,198,711 of the ESWW Shares, and irrevocable instructions to Seller's broker to transfer to the Purchaser (or an account designated in writing by Purchaser to Seller prior to Closing) the remaining 151,494 ESWW Shares which are maintained in an account with Seller's broker; 4.3 Closing Deliveries by Purchaser. Subject to the satisfaction, or the waiver by Purchaser, of the conditions set forth in Sections 6.1 and 6.2, at the Closing, Purchaser shall pay the Purchase Price to Seller in the manner set forth in Section 3.1. 5. Representations and Warranties. 5.1 Representations and Warranties of Seller. Seller hereby represents and warrants to Purchaser that: (a) Execution and Delivery. This Agreement has been duly executed and delivered by Seller and constitutes the legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms, subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). (b) Consents• No Conflicts. Etc. Subject to the satisfaction of all of the conditions in Section 6.1, neither the execution and delivery of this Agreement, the consummation by Seller of the transactions contemplated herein nor compliance by Seller with any of the provisions hereof will (with or without the giving of notice or the passage of time) (i) violate any order, writ, authorization of or by or filing or qualification with any Governmental Authority, except for such consents, approvals, permissions, authorizations, and receipts of filings or qualifications, the failure of which to obtain prior to the Closing, would not adversely affect Seller's ability to consummate the transactions contemplated by this Agreement, or (iii) conflict with, violate, result in a breach of or constitute a default under (without regard to requirements of notice, lapse of time, or elections of other Persons, or any combination thereof), any instrument or agreement to which Seller is a party. (c) Seller's Interests. Seller has valid marketable title to the ESWW Shares and holds the ESWW Shares, free and clear of all Encumbrances, other than any restrictions set forth in ESWW's organizational documents (the "Transfer Restrictions"). Upon the sale and transfer of the ESWW Shares, and payment therefor, in accordance with the provisions of this Agreement, the Purchaser will acquire valid marketable title to the ESWW Shares, free and clear of any Encumbrances other than pursuant to the Transfer Restrictions 5.2 Representations and Warranties of Purchaser. Purchaser hereby represents and warrants to Seller that: (a) Execution and Delivery. This Agreement has been duly executed and delivered by Purchaser and constitutes the legal, valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms, subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). 2 EFTA00586126 (b) Consents; No Conflicts, Etc. Subject to the satisfaction of all of the conditions in Section 6.1, neither the execution and delivery of this Agreement, the consummation by Purchaser of the transactions contemplated herein nor compliance by Purchaser with any of the provisions hereof will (with or without the giving of notice or the passage of time) (i) violate any order, writ, injunction or decree applicable to Purchaser, (ii) require the consent, approval, permission or other authorization of or by or filing or qualification with any Governmental Authority, except for such consents, approvals, permissions, authorizations, and receipts of filings or qualifications, the failure of which to obtain prior to the Closing, would not adversely affect Purchaser's ability to consummate the transactions contemplated by this Agreement, or (iii) conflict with, violate, result in a breach of or constitute a default under (without regard to requirements of notice, lapse of time, or elections of other Persons, or any combination thereof), any instrument or agreement to which Purchaser is a party. (c) Qualification of Purchaser. Purchaser is an "accredited investor" as defined in Rule 50I(a) promulgated under the Securities Act of 1933, as amended (the "Securities Act"), and is a "qualified purchaser" as defined in Section 2(a) of the Investment Company Act of 1940, as amended. Purchaser is acquiring the ESWW Shares for investment and not with a view to the distribution of all or any portion thereof within the meaning of the Securities Act. Purchaser acknowledges that none of the ESWW Shares has been registered under the Securities Act or state securities laws and agrees that Purchaser will not sell all or any portion of the ESWW Shares in violation of any applicable securities laws. (d) Disclaimer• No Reliance. Purchaser acknowledges, represents and warrants that Purchaser is not, and will not be, relying on any information, representations or warranties furnished or made by Seller or any of Seller's representatives or agents as to any matter whatsoever (other than as expressly stated herein) concerning the ESWW Shares and/or the legal status, good standing, organizational documents (or interpretation or effect thereof), business, history, prospects, assets, liabilities, financial condition, operations or value of ESWW, or any of its Affiliates, and in entering into this Agreement and in purchasing the ESWW Shares as contemplated hereby at the Closing, Purchaser is not, and will not be, relying upon any representations or warranties of Seller whatsoever, except for Seller's representations expressly set forth in Section 5.1 hereof. Purchaser further acknowledges, represents, warrants and covenants that Purchaser has had complete access to any and all information, facts and personnel connected with ESWW that Purchaser deems necessary or relevant, and that Purchaser has conducted its own independent investigation into and analysis of the value of the ESWW Shares and whatever facts Purchaser deems necessary or relevant, for deciding whether to purchase the ESWW Shares and what price Purchaser is willing to pay therefor, and that in entering into this Agreement and in engaging in the transactions contemplated hereby, Purchaser is and will be relying solely on Purchaser's own independent investigation, analysis and due diligence and on representations, warranties, information and documents made or furnished to Purchaser by or on behalf of ESWW, and ESWW's officers, directors, employees and agents, (collectively, the "ESWW Representatives"), and Purchaser acknowledges and agrees that neither Seller nor any of Seller's representatives or agents is responsible for any such representations, warranties, information or documents and that Purchaser shall not seek to hold any of Seller or Seller's representatives or agents responsible or liable in any way in connection with any such 3 EFTA00586127 representations, warranties, information or documents made or furnished by or on behalf of the ESWW Representatives. Purchaser acknowledges that it is a sophisticated investor with a long standing business relationship with the ESWW Representatives and, as such, is familiar with the legal status, good standing, organizational documents (or interpretation or effect thereof), business, history, prospects, assets, liabilities, financial condition, management, operations and value of ESWW. 5.3 Survival of Representations and Warranties. The representations and warranties of the Parties contained in this Agreement shall survive the Closing Date. 6. Conditions to Closing: Termination. 6.1 Condition to Each Party's Obligation to Close. The respective obligations of the Parties to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or waiver by each Party in writing, on or before the Closing Date, of the following conditions: (a) Iniunctions. There shall not be outstanding any injunction, decree or order of any court or governmental department or agency prohibiting the consummation of the transactions contemplated by this Agreement. (b) No Change in Law. There shall not have been any action taken or any statute enacted by any Governmental Authority which would render the Parties unable to consummate the transactions contemplated hereby or make the transactions contemplated hereby illegal or prohibit the consummation of the transactions contemplated hereby. 6.2 Conditions to Purchaser's Obligation to Close. The obligation of Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or the waiver in writing by Purchaser, on or prior to the Closing Date, of the following conditions: (a) Representations and Warranties True at the Closing Date. The representations and warranties of Seller contained in this Agreement shall be deemed to have been made at and as of the Closing Date and shall be true and correct in all material respects at and as of the Closing Date. (b) Seller's Performance. Each obligation of Seller to be performed on or before the Closing Date pursuant to the terms of this Agreement, including Seller's taking all of the actions required under Section 4.2 hereof, shall have been duly performed at or before the Closing, in all material respects. 6.3 Conditions to Seller's Obligation to Close. The obligations of Seller to consummate the transactions contemplated hereby shall be subject to the fulfillment, or the waiver in writing by Seller, on or prior to the Closing Date, of the following conditions: (a) Representations and Warranties True at the Closing Date. The representations and warranties of Purchaser contained in this Agreement shall be deemed to 4 EFTA00586128 have been made at and as of the Closing Date and shall be true and correct in all material respects at and as of the Closing Date. (b) Purchaser's Performance. Each obligation of Purchaser to be performed on or before the Closing Date under the terms of this Agreement including Purchaser's taking all of the actions required under Section 4.3 hereof, shall have been duly performed at or before the Closing, in all material respects. 7. Miscellaneous. 7.1 Notices. All notices, elections, consents, approvals, demands, objections, requests or other communications which any Party hereto may be required or desire to give to the other Party hereto must be in writing and sent by (i) first class U.S. certified or registered mail, return receipt requested, with postage prepaid, (ii) telecopy, facsimile or email (with a copy sent by first class U.S. certified or registered mail, return receipt requested, with postage prepaid), or (iii) express mail or courier (for either same day or next Business Day delivery). A notice or other communication sent in compliance with the provisions of this Section 7.1 shall be deemed given and received on (a) the third (3rd) Business Day following the date it is deposited in the U.S. mail, (b) the date of confirmed dispatch if sent by facsimile, telecopy or email (provided that a copy thereof is sent by mail the same day in the manner provided in clause (ii) above), or (c) the date it is delivered to the other Party's address if sent by express mail or courier. The addresses for the Parties are as follows: All notices and other communications to Seller shall be addressed to such Party at the following address: Financial Trust Company, Inc. 6100 Red Hook Quarter, B3 St. Thomas, USVI 00802 Facsimile No.: (340) 775-2528 email: Attention: Mr. Jeffrey E. Epstein, President with a copy to (which shall not constitute notice to Seller): Darren K. Indyke, Esq. Darren K. Indyke, PLLC 575 Lexington Avenue, 4th Floor New York, NY 10022 Facsimile No.: (646) 350-0378 email: 5 EFTA00586129 All notices and other communications to Purchaser shall be addressed to such Party at the following address: [LEON BLACK OR BLACK FAMILY PARTNERSHIP] do Apollo Management 9 West 57th Street, 43rd Floor New York, NY 10019 Facsimile No.: (212) 515-3261 email: Attention: Mr. Leon Black, [INSERT TITLE] Any Party may designate another addressee or change its address for notices and other communications hereunder by a notice given to the other Party in the manner provided in this Section 7.1. 7.2 Successors and Assigns. This Agreement and all the terms and provisions hereof shall be binding upon and shall inure to the benefit of each of the Parties hereto, and their legal representatives, successors and permitted assigns. 7.3 Effect and Interpretation. This Agreement shall be governed by and construed in conformity with the laws of the State of New York, without reference to conflicts or choice of law principles. 7.4 Amendments. Except as otherwise provided herein, this Agreement may not be changed, modified, supplemented or terminated, except by an instrument executed by the Party hereto which is or will be affected by the terms of such change, modification, supplement or termination. 7.5 Waiver. No waiver by any Party hereto of any failure or refusal by any other Party hereto to comply with its obligations hereunder shall be deemed a waiver of any other or subsequent failure or refusal to so comply. Any Party hereto may waive compliance by any other with respect to any of the other's agreements or obligations set forth herein. All such waivers shall be in writing signed by the Party hereto to be charged therewith. 7.6 Severability. If any provision of this Agreement, or the application of such provision to any Person or circumstance, shall be held invalid by a court of competent jurisdiction, the remainder of this Agreement, or the application of such provision to Persons or circumstances other than those to which it is held invalid by such court, shall not be affected thereby. 7.7 Headings; Usage. The headings, titles and subtitles herein are inserted for convenience of reference only and are to be ignored in any construction of the provisions hereof. Unless the context of this Agreement otherwise requires (i) words of any gender are deemed to include each other gender, (ii) words using singular or plural number also include the plural or singular, respectively, (iii) the terms "hereof', "herein", "hereby", "hereto", and derivative or similar words refer to this entire Agreement, and (iv) all references to dollars or "$" shall be to 6 EFTA00586130 United States dollars. Whenever the words "include", "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation". 7.8 No Third Party Beneficiaries. Except as expressly provided herein, Persons who are not parties to this Agreement shall have no rights or privileges (whether as a third party beneficiary or otherwise) under or by virtue of this Agreement. 7.9 Business Days. In the event that any of the dates specified in this Agreement shall fall on a Saturday, Sunday, or a holiday recognized by the State of New York, then the date of such action shall be deemed to be extended to the next Business Day. 7.10 Expenses. Each Party shall be liable for its own costs and expenses incurred in connection with the negotiation, preparation execution and performance of this Agreement and the transactions contemplated hereby, including all fees of legal counsel, auditors and financial advisors; provided, however that a breaching Party hereto shall be liable for such costs and expenses of the other Party hereto in the event it becomes necessary for the non-breaching party to enforce this Agreement. Any stamp taxes, sales taxes, transfer taxes, recording taxes, filing fees and similar taxes, fees or charges in connection with the assignment of the Purchased Interests pursuant to this Agreement shall be borne by Purchaser. 7.11 Entire Agreement. This Agreement together with all documents and instruments executed or to be executed and delivered in connection with the Closing contemplated herein and in such other agreements, constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior agreements and negotiations. 7.12 Construction. Each of the Parties hereto acknowledges that it was represented by counsel of its choice in connection with the negotiation of this Agreement and the transactions contemplated hereby, and the Parties agree that the rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any documents executed and delivered pursuant hereto. Instead, the language in all parts of this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the Parties hereto. 7.13 Further Assurances. Each Party shall execute and deliver to the other Party such further documents and instruments as may be reasonably requested by the other Party in order to effectuate the intent of this Agreement and to obtain the full benefit of this Agreement. Any request by a Party under this Section 7.13 shall be accompanied by the document proposed for signature by the Party requesting it for review by the Party of whom such document is requested and its attorneys. The Party making the request shall bear and discharge any fees or expenses incident to the preparation, filing or recording of the document requested pursuant to this Section 7.13. 7.14 Assignment. No Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party hereto. 7.15 Nature of Relationship. The relationship between Seller and Purchaser hereunder or contemplated by this Agreement is solely that of seller and purchaser and nothing herein is 7 EFTA00586131 intended to create or constitute a joint venture or partnership of any kind between Seller and Purchaser or to constitute either Party as an agent of the other Party. 7.16 Counterparts: Delivery. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto except having additional signature pages executed by the other Party to this Agreement attached thereto. This Agreement may be executed and delivered by delivery of a facsimile copy of an executed signature page or counterpart or by e-mailing a PDF version of a signed signature page or counterpart, and each shall have the same force and effect as the delivery of an originally executed signature page or counterpart. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above. SELLER: FINANCIAL TRUST COMPANY, INC. By: Jeffrey E. Epstein President PURCHASER: [LEON BLACK OR BLACK FAMILY PARTNERSHIP] By: Leon Black [TITLE OF SIGNATORY' 8 EFTA00586132 APPENDIX A Definitions (a) Defined Terms. The following terms shall have the respective meanings ascribed to them below: "Affiliate" of a specified Person means any Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with the Person specified. "Agreement" means this Agreement as it may from time to time be amended, and is in effect. "Business Day" means each day which is neither a Saturday, a Sunday nor any other day on which banking institutions in New York are authorized or obligated by law or required by executive order to be closed. "Control" or "Controlled" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this definition, a general partner, managing member or non-member manager of a Person shall always be considered to Control such Person. "Damages" means any actual loss, liability (including, but not limited to, any tax liability), claim, action or cause of action, damage, assessment, judgment, cost or out-of-pocket expense (including but not limited to reasonable attorneys' fees and expenses). "Encumbrances" means all liens, pledges, security interests, community property rights, charges, encumbrances, equities, claims, options and other restrictions. "Governmental Authority" means any nation or government, any state or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administration functions of or pertaining to government, including any government authority, agency, department, board, commission or instrumentality of the United States, any self- regulatory organization, any foreign government, any State of the United States or any political subdivision thereof, and any court, tribunal, mediator(s) or arbitrator(s) of competent jurisdiction. "Party" means any of Seller or Purchaser. "Person" means any individual, partnership, limited liability company, joint venture, corporation, trust, association, unincorporated organization or Governmental Authority or other entity of any kind. 9 EFTA00586133 "Tax" or Taxes" means all federal, state, local and foreign taxes, charges, fees, imposts, levies or other assessments, including without limitation all income, profits, franchise, receipts, capital, sales, use, withholding, alternative minimum, ad valorem, inventory, payroll, employment, social security, unemployment, customs duties, value added, property, transfer, severance, excise and other similar taxes and governmental charges, including related interest, penalties, fines and additions to tax. (b) Cross-References. In addition to the terms set forth in the preceding section, the following terms are defined in the text of this Agreement in the locations specified below: Defined Term Cross-Reference Closing Section 4.1 Closing Date Section 4.1 ESWW Recitals ESWW Representatives Section 5.2 ESWW Shares Recitals Purchase Price Section 3.1 Purchaser Preamble Securities Act Section 5.2 Seller Preamble 10 EFTA00586134