exv10w1






Exhibit 10.1




 





AMENDED AND RESTATED




EQUITY INTEREST PURCHASE AGREEMENT




among




WCA WASTE CORPORATION,




WCA WASTE SYSTEMS, INC.,




WCA OF MISSISSIPPI, LLC




EWS HOLDINGS, LLC,




WRH GAINESVILLE, LLC,




WRH GAINESVILLE HOLDINGS, LLC,




WRH ORANGE CITY, LLC,




EWS CENTRAL FLORIDA HAULING, LLC,




MACLAND HOLDINGS, INC.,




MACLAND DISPOSAL CENTER, INC.,




MACLAND DISPOSAL INC. II




and




EMERALD WASTE SERVICES, LLC




 





February 28, 2011





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I
	 	 	2	 
	1. Transfer of Equity Interests; Delivery of Consideration; Assignment of Accounts and Deferred Revenue; Assignment of Rights
	 	 	2	 
	1.1 Specified Interests
	 	 	2	 
	1.2 Equity Interests Free and Clear of Liens
	 	 	2	 
	1.3 Closing
	 	 	2	 
	1.4 Assignment of Accounts Receivable and Accounts Payable; Deferred Revenue
Adjustment; Prepaid Expense Amount
	 	 	3	 
	 
	 	 	 	 
	ARTICLE II
	 	 	5	 
	2. Purchase Price; Escrow Agreement
	 	 	5	 
	2.1 Payment of Purchase Price
	 	 	5	 
	2.2 Indemnification Shares
	 	 	7	 
	2.3 Adjustments to Indemnification Shares
	 	 	7	 
	 
	 	 	 	 
	ARTICLE III
	 	 	7	 
	3. Representations and Warranties of the Emerald Parties
	 	 	7	 
	3.1 Due Organization
	 	 	8	 
	3.2 Authorization, Validity and Effect of Agreements; Non-Contravention
	 	 	8	 
	3.3 Equity Interests of the Emerald Companies; Sufficiency of Assets
	 	 	9	 
	3.4 Obligations to Issue or Sell Equity Interests
	 	 	9	 
	3.5 Subsidiaries
	 	 	9	 
	3.6 Predecessor Status, etc.
	 	 	10	 
	3.7 Financial Statements
	 	 	10	 
	3.8 Liabilities and Obligations
	 	 	11	 
	3.9 Approvals
	 	 	11	 
	3.10 Permits and Intangibles
	 	 	11	 
	3.11 Personal Property and Leases
	 	 	12	 
	3.12 Customers; Contracts and Commitments
	 	 	12	 
	3.13 Real Property
	 	 	13	 
	3.14 Insurance
	 	 	14	 
	3.15 Employment Matters
	 	 	14	 
	3.16 Parachute Provisions
	 	 	14	 
	3.17 Benefit Plans; ERISA Compliance
	 	 	14	 
	3.18 Conformity with Law
	 	 	16	 
	3.19 Taxes
	 	 	17	 
	3.20 Completeness; No Defaults
	 	 	19	 
	3.21 Government Contracts
	 	 	19	 
	3.22 Absence of Changes
	 	 	19	 
	3.23 Deposit Accounts; Powers of Attorney; Escheatment
	 	 	21	 
	3.24 Proprietary Rights
	 	 	21	 
	3.25 Relations with Governments
	 	 	22	 
	3.26 Environmental Matters
	 	 	22	 
	3.27 No Broker’s or Finder’s Fees
	 	 	24	 






 









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	3.28 Litigation
	 	 	24	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	25	 
	4. Representations and Warranties of the WCA Parties
	 	 	25	 
	4.1 Organization; Standing and Power
	 	 	25	 
	4.2 Capitalization
	 	 	25	 
	4.3 Authorization, Validity and Effect of Agreements; Non-contravention
	 	 	26	 
	4.4 SEC Reports; Financial Statements
	 	 	26	 
	4.5 Litigation
	 	 	28	 
	4.6 Insurance
	 	 	28	 
	4.7 Conformity with Law
	 	 	28	 
	4.8 Relations with Governments
	 	 	29	 
	4.9 Contracts and Commitments
	 	 	29	 
	4.10 Absence of Certain Changes or Events
	 	 	30	 
	4.11 Required Vote
	 	 	31	 
	4.12 Financial Capability; Solvency
	 	 	31	 
	4.13 Valid Issuance of the Securities
	 	 	31	 
	4.14 Offering
	 	 	31	 
	4.15 Purchase for Investment
	 	 	31	 
	4.16 Investor Qualifications
	 	 	31	 
	4.17 No Broker’s or Finder’s Fees
	 	 	31	 
	 
	 	 	 	 
	ARTICLE V
	 	 	32	 
	5. Covenants of Both Parties
	 	 	32	 
	5.1 Emerald Tax Covenants
	 	 	32	 
	5.2 Regulatory and Other Approvals
	 	 	34	 
	5.3 Interim Conduct of the Business
	 	 	34	 
	5.4 WCA Parent’s Approval of Certain Transactions
	 	 	35	 
	5.5 NASDAQ Listing
	 	 	35	 
	5.6 Pre-Closing Access
	 	 	36	 
	5.7 Employee Matters
	 	 	36	 
	5.8 Notice of Developments
	 	 	36	 
	5.9 Exclusivity
	 	 	37	 
	5.10 Confidentiality
	 	 	37	 
	5.11 Publicity
	 	 	38	 
	5.12 Legal Requirements
	 	 	38	 
	5.13 Further Assurances
	 	 	38	 
	5.14 Financial Statements
	 	 	38	 
	5.15 Real Property Documents
	 	 	39	 
	5.16 Use of Emerald Company Name
	 	 	39	 
	5.17 Closure Financial Assurances; Other Bond Obligations
	 	 	39	 
	5.18 Updated Disclosure: Breaches
	 	 	39	 
	5.19 Gulf Coast Business
	 	 	40	 
	5.20 Post-Closing Transfer of Gulf Coast Contracts
	 	 	40	 
	5.21 Escrow Agreements
	 	 	40	 






-ii-









 






TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	ARTICLE VI
	 	 	41	 
	6. Survival of Covenants, Representations and Warranties; Indemnification
	 	 	41	 
	6.1 Survival of Covenants, Representations, and Warranties
	 	 	41	 
	6.2 Indemnification by Emerald
	 	 	41	 
	6.3 Indemnification by the WCA Parties
	 	 	41	 
	6.4 Notice and Defense of Claims
	 	 	42	 
	6.5 Payment and Interest
	 	 	43	 
	6.6 Limits of Liability
	 	 	44	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	46	 
	7. Conditions to Closing
	 	 	46	 
	7.1 Conditions to the WCA Parties’ Obligations
	 	 	46	 
	7.2 Conditions to the Emerald Parties’ Obligations
	 	 	48	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	50	 
	8. Termination
	 	 	50	 
	8.1 Termination
	 	 	50	 
	8.2 Effect of Termination
	 	 	50	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	50	 
	9. Certain Definitions
	 	 	50	 
	 
	 	 	 	 
	ARTICLE X
	 	 	57	 
	10. General
	 	 	57	 
	10.1 Costs
	 	 	57	 
	10.2 Entire Agreement
	 	 	57	 
	10.3 Counterparts
	 	 	58	 
	10.4 Notices
	 	 	58	 
	10.5 Modification or Waiver
	 	 	58	 
	10.6 Binding Effect and Assignment
	 	 	59	 
	10.7 Governing Law; Venue; Waiver of Jury Trial
	 	 	59	 
	10.8 Section Headings
	 	 	59	 
	10.9 Severability
	 	 	59	 
	10.10 Drafting
	 	 	60	 
	10.11 References
	 	 	60	 
	10.12 Calendar Days, Weeks, Months and Quarters
	 	 	60	 
	10.13 Gender; Plural and Singular
	 	 	60	 
	10.14 Cumulative Rights
	 	 	60	 
	10.15 No Implied Covenants
	 	 	60	 
	10.16 Indirect Action
	 	 	60	 
	10.17 Attorneys’ Fees
	 	 	60	 
	10.18 Time of the Essence
	 	 	60	 
	10.19 No Third-Party Beneficiaries
	 	 	61	 
	10.20 Specific Performance
	 	 	61	 
	10.21 MacLand Companies; WCA Mississippi
	 	 	61	 






-iii-









 






TABLE OF CONTENTS

(continued)




	 	 	 
	Exhibits	 	 
	Exhibit A
	 	Assignment and Assumption Agreement
	Exhibit B
	 	Voting Agreement
	Exhibit C
	 	Stockholders’ Agreement
	Exhibit D
	 	Registration Rights Agreement






-iv-









 






AMENDED AND RESTATED EQUITY INTEREST PURCHASE AGREEMENT




     THIS AMENDED AND RESTATED EQUITY INTEREST PURCHASE AGREEMENT (this “Agreement”) is made
effective February 28, 2011, by and among WCA Waste Corporation, a Delaware corporation (“WCA
Parent”), WCA Waste Systems, Inc., a Delaware corporation (“WCA Systems”), WCA of Mississippi, LLC,
a Delaware limited liability company (“WCA Mississippi”), EWS Holdings, LLC, a Delaware limited
liability company (“EWS Holdings”), WRH Gainesville, LLC, a Florida limited liability company (“WRH
Gainesville”), WRH Gainesville Holdings, LLC, a Florida limited liability company (“WRH Gainesville
Holdings”), WRH Orange City, LLC, a Florida limited liability company (“WRH Orange City”), EWS
Central Florida Hauling, LLC, a Florida limited liability company (“EWS CF”), Emerald Waste
Services, LLC, a Florida limited liability company (“EWS”), MacLand Holdings, Inc., a Delaware
corporation (“MacLand Holdings”), MacLand Disposal Center, Inc., a Mississippi corporation
(“MacLand I”), and MacLand Disposal Inc. II, a Mississippi corporation (“MacLand II”). WCA Parent
and WCA Systems are collectively referred to as the “WCA Parties,” EWS Holdings, WRH Gainesville,
WRH Gainesville Holdings, WRH Orange City, EWS CF and EWS are collectively referred to as the
“Emerald Parties,” and MacLand Holdings, MacLand I and MacLand II are collectively referred to as
the “MacLand Companies”. Capitalized terms used, but not otherwise defined, herein shall have the
meanings set forth in Article 9.



R E C I T A L S:




     WHEREAS, the Parties have previously entered into the Equity Interest Purchase Agreement (the
“Original Agreement”) dated December 15, 2010 (the “Original Agreement Date”) and the Parties wish
to amend and restate the Original Agreement in its entirety;



     WHEREAS, EWS Holdings is the sole record and beneficial owner of all of the issued and
outstanding limited liability company interests or capital stock, as applicable, of each of (i) WRH
Gainesville, which owns and operates a transfer station located at 5002 SW 41st Boulevard,
Gainesville, Florida 32608 (the “Gainesville Transfer Station”); (ii) WRH Gainesville Holdings,
which holds the permit for the Gainesville Transfer Station; (iii) WRH Orange City, which owns
certain real property (the “Orange City Property”) located at 1378 South Volusia Avenue, Orange
City, Florida 32763; (iv) EWS CF, which owns and operates certain hauling operations servicing EWS
Holdings’ Central Florida operations (the “Central Florida Business”); and (v) EWS, which (except
for the Gulf Coast Business) is a party to certain contracts associated with the Central Florida
Business (the foregoing entities referred to in clauses (i) through (v) collectively as the
“Emerald Companies”), and the limited liability company interests of the Emerald Companies owned by
EWS Holdings (collectively, the “Equity Interests”) represent all of the authorized, issued and
outstanding equity interests of each of WRH Gainesville, WRH Gainesville Holdings, WRH Orange City,
EWS CF, and EWS;



     WHEREAS, EWS Holdings wishes to sell and WCA Systems wishes to buy all of the Equity Interests
of WRH Gainesville, WRH Gainesville Holdings, WRH Orange City, EWS CF and EWS; and



1









 





     WHEREAS, prior to the Closing (defined below), EWS shall transfer all Gulf Coast Assets and
Gulf Coast Liabilities to a Subsidiary of EWS Holdings that is not also an Emerald Company (such
Subsidiary shall hereinafter be referred to as “EWS Gulf Coast”).



A G R E E M E N T:




     NOW, THEREFORE, in consideration of the promises and of the mutual agreements set forth below,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows, intending to be legally bound hereby:



ARTICLE I




1. Transfer of Equity Interests; Delivery of Consideration; Assignment of Accounts and Deferred
Revenue; Assignment of Rights.




     1.1 Specified Interests. Subject to the terms and conditions of this Agreement,
effective as of the Closing Date (as hereinafter defined) the parties will take the following
actions and shall further deliver the consideration specified below and take the further actions
required of them under this Agreement:


          (a) EWS Holdings shall assign, convey, transfer and deliver to WCA Systems 100% of the Equity
Interests.


          (b) WCA Parent will deliver the Purchase Price (defined below), on behalf of EWS Holdings, to
the parties and in the manner set forth in Section 2.1 below.



     1.2 Equity Interests Free and Clear of Liens. All of the Equity Interests shall be
delivered hereunder free and clear of all liens and encumbrances, except for Permitted Liens.



     1.3 Closing. Subject to the satisfaction or waiver of the conditions to the Closing
set forth in Article 7 below, the closing of the transactions contemplated hereby shall
take place by facsimile transmission or by electronic mail in PDF format of all required documents
(with the original executed documents to be delivered by overnight courier) to the offices of
Andrews Kurth LLP, 600 Travis, Suite 4200, Houston, Texas 77002, at such time and place, as shall
be agreed upon by the Parties, but in any event as soon as reasonably practicable following the
satisfaction of the conditions to Closing (which time and place are designated as the “Closing” and
the date on which the Closing occurs is designated as the “Closing Date”). The Parties hereby
agree that the Closing may take place through the exchange of digital copies of all closing
documents, which shall be delivered in escrow to the attorneys for the respective Parties and
disbursed and
delivered upon the satisfaction of all conditions to Closing set forth in this Agreement. The
Parties agree to furnish original executed copies of each of the closing documents to the other
Party no later than two (2) business days following the Closing Date. For accounting purposes and
legal transfer of ownership of the Equity Interests, the Closing shall be effective as of 12:01
a.m. Eastern Standard Time on March 1, 2011 (the “Effective Time”).



2









 





     1.4 Assignment of Accounts Receivable and Accounts Payable; Deferred Revenue Adjustment;
Prepaid Expense Amount.


          (a) Accounts Receivable and Accounts Payable. As soon as practicable prior to the
Closing Date, EWS Holdings shall provide to WCA Parent an estimate of the Accounts Receivable and
Accounts Payable of the Emerald Companies (other than those related to the Gulf Coast Business) as
of the Closing Date, including sufficient background detail regarding the basis for such amounts
(the “Account Worksheet”). As soon as practicable prior to Closing, WCA Parent shall provide any
comments and revisions to the Account Worksheet. At Closing, EWS Holdings shall provide the final
Accounts Receivable and Accounts Payable of the Emerald Companies (other than those related to the
Gulf Coast Business) as of the Effective Time (the “Final Account Worksheet”), in form reasonably
acceptable to WCA Parent. At Closing, the Emerald Companies shall cause the assignment to EWS Gulf
Coast of the Accounts Receivable and Accounts Payable set forth on the Final Account Worksheet
pursuant to an Assignment and Assumption Agreement attached as Exhibit A hereto. From and
after the Closing Date, EWS Gulf Coast shall (i) have the right to collect the Accounts Receivable
and shall be entitled to retain all amounts collected and (ii) be solely responsible for the
payment of the Accounts Payable promptly following Closing. Except as set forth in this
Section 1.4(a), the WCA Parties, including the Emerald Companies after the Effective Time,
shall not have any obligation to EWS Gulf Coast or any other Person with respect to any collection
of the Accounts Receivable set forth on the Final Account Worksheet or with respect to the payment
of the Accounts Payable set forth on the Final Account Worksheet. Notwithstanding the foregoing,
following the Closing WCA Parent shall, and shall cause each of its Subsidiaries (including each
Emerald Company) to, (i) cooperate with and assist EWS Gulf Coast in connection with the collection
of the Accounts Receivable by taking such actions that are reasonably requested by the EWS Gulf
Coast in connection therewith and (ii) cause all correspondence, invoices or any other documents
relating to the Accounts Receivable or Accounts Payable set forth on the Final Account Worksheet
that are received by WCA Parent or any Subsidiary (including any Emerald Company) to be delivered
to EWS Gulf Coast not less often than on a monthly basis. If WCA Parent or any of its Subsidiaries
(including any Emerald Company) receives any payment with respect to the Accounts Receivable, it
shall deliver any such payment to EWS Gulf Coast in the form received no later than the last
business day of the week following its receipt thereof.


          (b) Deferred Revenue. (i) As soon as practicable prior to the Closing Date, EWS
Holdings shall provide to WCA Parent an estimate of the Deferred Revenue of the Emerald Companies
(other than those related to the Gulf Coast Business) as of the Closing Date, including sufficient
background detail regarding the basis for such amounts (the “Deferred Revenue Worksheet”). As soon
as practicable prior to the Closing, WCA Parent shall provide any comments and revisions to the
Deferred Revenue Worksheet. At Closing, EWS Holdings
shall provide the Deferred Revenue of the Emerald Companies (other than those related to the
Gulf Coast Business) as of the Effective Time (the “Final Deferred Revenue Worksheet”), in form
reasonably acceptable to WCA Parent. At Closing, WCA Parent shall deduct from the Net Cash
Purchase Price an amount equal to the Deferred Revenue set forth on the Final Deferred Revenue
Worksheet (such amount, the “Estimated Deferred Revenue Amount”).



               (ii) Within 120 days after the Closing Date, WCA Parent shall deliver to EWS Holdings a
statement (the “Statement”) setting forth the actual Deferred Revenue of the



3









 





Emerald Companies
(other than those related to the Gulf Coast Business) as of the Effective Time (the “Actual
Deferred Revenue Amount”). WCA Parent will prepare the Statement in a manner consistent with the
preparation of the Deferred Revenue Worksheet. The Statement shall contain a supporting schedule
detailing the calculation of the proposed Actual Deferred Revenue Amount and will be accompanied
with copies of all back up materials used in preparing the Statement and determining the Actual
Deferred Revenue Amount.




               (iii) EWS Holdings and its representatives will be entitled to examine the back up materials
used in the preparation of the Statement and determining the Actual Deferred Revenue Amount and to
discuss the preparation of the Statement and determining the Actual Deferred Revenue Amount with
WCA Parent’s accounting personnel. If EWS Holdings disagrees with the calculation of the Actual
Deferred Revenue it must deliver to WCA Parent, within thirty (30) days after the date WCA Parent
delivered the Statement to EWS Holdings, a written description of each such disagreement (the
“Protest Notice”), which such Protest Notice shall be in reasonable detail based on all information
available to EWS Holdings. WCA Parent and EWS Holdings will thereafter negotiate in good faith to
resolve any such disagreements. If, after a period of fifteen (15) days following the date on
which such written the Protest Notice is delivered by EWS Holdings to WCA Parent, EWS Holdings and
WCA Parent have not resolved each such disagreement set forth in the Protest Notice, then either
EWS Holdings or WCA Parent will be entitled to submit such disagreements to Grant Thornton LLP (the
“Disputes Auditor”) so long as such submitting party provides prompt written notice of such
submission to the nonsubmitting party. Within seven days after receipt of such written notice, EWS
Holdings and WCA Parent will each deliver to the Disputes Auditor (with a copy to the other Party)
a written settlement offer setting forth its calculation of the Actual Deferred Revenue Amount
(each, a “Settlement Offer”). WCA Parent will grant (and will cause each Emerald Company to grant)
to the Disputes Auditors reasonable access to WCA Parent and the Emerald Companies’ respective
books and records. WCA Parent will cause their accounting personnel to discuss with the Disputes
Auditor the preparation of the Statement and the calculation of Actual Deferred Revenue Amount and
to grant to the Disputes Auditor reasonable access to the back up materials of WCA Parent’s
accountants and accounting personnel used in the preparation of the Statement and determining the
Actual Deferred Revenue Amount. The Disputes Auditor will resolve the disagreements (the “Final
Resolution”) set forth in the Protest Notice within thirty (30) days after the date on which the
Disputes Auditor is engaged or as soon thereafter as possible. The calculation of the Actual
Deferred Revenue Amount by the Disputes Auditor will be binding upon the Parties. The cost of the
services of the Disputes Auditor will be borne half by EWS Holdings and half by WCA Parent. If
either party fails to deliver a Settlement Offer in accordance with this Section
1.4(b)(iii), the costs of the Disputes Auditor will be borne solely by such party.



               (iv) If the Actual Deferred Revenue Amount exceeds the Estimated Deferred Revenue Amount, EWS
Holdings shall pay to WCA Parent, within fifteen (15) days from the date of delivery of the
Statement (or if a Protest Notice is delivered by EWS Holdings pursuant to this Section
1.4, then within fifteen (15) days from the later of the date that the last of the
disagreements set forth in the Protest Notice are amicably resolved by EWS Holdings and WCA Parent
or the date of delivery to EWS Holdings and WCA Parent of a Final Resolution by the Disputes
Auditor), an amount in cash equal to the amount by which the Actual Deferred Revenue Amount exceeds
the Estimated Deferred Revenue Amount. If the Actual Deferred



4









 





Revenue is less than the Estimated
Deferred Revenue Amount, WCA Parent shall pay to EWS Holdings, within fifteen (15) days from the
date of delivery of the Statement (or if a Protest Notice is delivered by EWS Holdings pursuant to
this Section 1.4, then within fifteen (15) days from the later of the date that the last of
the disagreements set forth in the Protest Notice are amicably resolved by EWS Holdings and WCA
Parent or the date of delivery to EWS Holdings and WCA Parent of a Final Resolution by the Disputes
Auditor), an amount in cash equal to the amount by which the Estimated Deferred Revenue Amount
exceeds the Actual Deferred Revenue Amount.




               (c) Prepaid Items and Reimbursed Expenses. Schedule 1.4(c) hereto sets forth the
Prepaid Item Amount as of the Original Agreement Date (the “Prepaid Item Estimate”) and those
certain capital expenditure expenses that the Emerald Companies have incurred and for which the WCA
Parties have agreed to reimburse the Emerald Parties (collectively, the “Reimbursed Expenses
Amount”), including sufficient background detail regarding the basis for such amounts. As soon as
practicable prior to the Closing, EWS Holdings shall provide to WCA Parent a worksheet (the
“Reimbursement and Prepaid Items Worksheet”) containing (i) an estimate of the Reimbursed Expenses
Amount as of the Closing Date and (ii) an estimate of the Prepaid Item Amount of the Emerald
Companies (other than with respect to the Gulf Coast Business) as of the Closing Date, to be
prepared and calculated consistently with the preparation and calculation of the Prepaid Item
Estimate and the Reimbursed Expenses Amount, respectively, and including sufficient background
detail regarding the basis for such amounts. As soon as practicable prior to the Closing, WCA
Parent shall provide any comments to and request revisions of the Reimbursement and Prepaid Items
Worksheet. At Closing, EWS Holdings shall provide the final Reimbursed Expenses Amount (the “Final
Reimbursed Expenses Amount”) and the final Prepaid Items Amount (the “Final Prepaid Items Amount”)
as of the Effective Time (the “Final Reimbursement and Prepaid Items Worksheet”), in form
reasonably acceptable to WCA Parent. Notwithstanding the foregoing, unless otherwise agreed to by
WCA Parent in writing, in no event shall an amount that was not set forth on Schedule 1.4(c) and
was not approved by WCA Parent after the Original Agreement Date be set forth on the Reimbursement
and Prepaid Items Worksheet or the Final Reimbursement and Prepaid Items Worksheet.



ARTICLE II




2. Purchase Price; Escrow Agreement.




     2.1 Payment of Purchase Price. Upon the terms and conditions set forth in this Agreement, in consideration of the transfer
of the Equity Interests and the covenants and agreements set forth in Article 5, at the
Closing WCA Parent shall pay the aggregate consideration set forth in this Section 2.1
(collectively, the “Purchase Price”) as follows:


          (a) the amount (such amount, the “Comerica Release Amount”) necessary to cause Comerica Bank,
a Texas banking association (“Comerica”), to release all Liens in favor of Comerica under the
Comerica Credit Facility on any assets or properties of the Emerald Companies, as set forth in a
payoff letter (which such payoff letter shall provide that all such Liens shall be terminated and
released (including the termination of all UCC financing statements filed by or on behalf of
Comerica) upon receipt by Comerica of the Comerica Release





5









 








Amount) to be delivered by Comerica to
the Emerald Parties and WCA Parent prior to the Closing (the “Comerica Payoff Letter”), shall be
paid by wire transfer of immediately available funds in accordance with the wire transfer
instructions set forth in the Comerica Payoff Letter;



          (b) the amount (such aggregate amount the “Other Indebtedness Payment Amount”) necessary to
satisfy in full certain indebtedness, including amounts owed pursuant to vehicle leasing
arrangements, described on Schedule 2.1(b) (which such schedule can be amended or supplemented at
any time by the Emerald Parties up to the Closing) owed to such creditors identified on Schedule
2.1(b) (the “Other Creditors”), as set forth, in each case, in a payoff letter (which each such
payoff letter shall provide that all Liens on any assets or properties of any Emerald Company shall
be terminated and released (including the termination of all UCC financing statements filed by or
on behalf of the applicable Other Creditor) and, to the extent applicable, that a bill of sale
evidencing the transfer of title to all property that was the subject of any lease described on
Schedule 2.1(b) shall be delivered as promptly as practicable after the Closing) upon receipt by
each such Other Creditor of such Other Creditor’s portion of the Other Indebtedness Payment Amount
set forth on such Other Creditor’s payoff letter) to be delivered by EWS Holdings to WCA Parent
prior to Closing (each such payoff letter descried in this Section 2.1(b), an “Other
Creditor Payoff Letter”), shall be paid by wire transfer of immediately available funds in
accordance with the wire transfer instructions set forth in each Other Creditor Payoff Letter;


          (c) the amount (such aggregate amount the “Transaction Expenses Amount”) necessary to satisfy
in full all transaction expenses owed by any of the Emerald Companies to each of (1) Livingstone
Partners, (2) Katten Muchin Rosenman LLP, and (3) Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
(each of the foregoing, an “Emerald Professional”) as set forth, in each case, in a payoff letter
to be delivered by EWS Holdings to WCA Parent prior to Closing (each such payoff letter descried in
this Section 2.1(c), an “Emerald Professional Payoff Letter”), shall be paid by wire
transfer of immediately available funds in accordance with the wire transfer instructions set forth
in each Emerald Professional Payoff Letter;


          (d) an amount in cash equal to the Base Cash Purchase Price less (i) the Comerica
Release Amount, less (ii) the Other Indebtedness Payment Amount, less (iii) the
Estimated Deferred Revenue Amount, less (iv) the Transaction Expenses Amount plus
(iv) the sum of (A) the Final Reimbursed Expenses Amount and (B) the Final Prepaid Items Amount,
such net amount (the “Net Cash Purchase Price”), to be paid by wire transfer of immediately
available funds in accordance with the wire transfer instructions to be delivered by EWS
Holdings to WCA Parent in writing prior to Closing;


          (e) (i) a stock certificate representing 180,723 shares (the “First Indemnification Shares”)
of common stock, par value $0.01 per share, of WCA Parent (the “WCA Parent Common Stock”) and a
stock certificate representing 722,891 shares (the “Second Indemnification Shares” and, together
with the First Indemnification Shares, the “Indemnification Shares”) of WCA Parent Common Stock,
both to be deposited by WCA Parent on the Closing Date into an escrow account (the “Escrow Fund”)
in accordance with Section 2.2 for the benefit of EWS Holdings and (ii) a stock certificate
representing 1,506,025 shares (the “Distributed Shares,” and together with the Indemnification
Shares, the “Closing Shares”) of



6









 








WCA Parent Common Stock to be issued by WCA Parent on the Closing Date to EWS Holdings; and



          (f) an amount in cash necessary to satisfy in full certain obligations incurred for the
purchase of vehicles described on Schedule 2.1(f) shall be paid by wire transfer of immediately
available funds in accordance with the payment instructions set forth on Schedule 2.1(f).



     2.2 Indemnification Shares.


          (a) The Indemnification Shares will be deposited by WCA Parent at the Closing with BOKF, NA
dba Bank of Texas (the “Escrow Agent”) in accordance with the terms and conditions of an escrow
agreement, in form reasonably satisfactory to all Parties (the “Escrow Agreement”), and will be
distributed by the Escrow Agent in accordance with Section 2.2(b).


          (b) The Indemnification Shares shall be held in the Escrow Fund to satisfy the indemnification
obligations of EWS Holdings pursuant to Article 6 and shall be held in the Escrow Fund
pursuant to the terms of the Escrow Agreement and Section 6.5 (i), in the case of the First
Indemnification Shares, until May 29, 2011; provided, that, in the event that any Claim has been
made by a WCA Indemnified Person pursuant to Article 6 or in the event that WCA Parent
believes in good faith that all Accounts Payable of the Emerald Companies have not been paid in
full by such date, such later date as WCA Parent provides an Accounts Payable Notice (as defined in
the Escrow Agreement) to the Escrow Agent or such later date as provided in the Escrow Agreement,
and (ii) in the case of the Second Indemnification Shares, until the third anniversary of the
Closing Date.



     2.3 Adjustments to Indemnification Shares. If, at any time subsequent to the Closing
and prior to the date that no Indemnification Shares remain held in the Escrow Fund, the number of
shares of WCA Parent Common Stock are proportionately increased or decreased, changed or converted
into or exchanged for a different number or kind of shares of stock or other securities of WCA
Parent or of another corporation or other property, including cash (whether as a result of a stock
split, stock dividend, combination or exchange of shares, exchange for other securities,
reclassification,
reorganization, redesignation, merger, consolidation, recapitalization or otherwise), then any
Indemnification Shares held in an Escrow Fund shall be adjusted in a manner to appropriately and
equitably reflect any such increase or decrease, change, conversion or exchange in the manner set
forth in the Escrow Agreement with respect to such Indemnification Shares.



ARTICLE III




3. Representations and Warranties of the Emerald Parties. Prior to or upon the execution of this
Agreement, EWS Holdings has delivered to the WCA Parties a schedule (the “Emerald Disclosure
Schedule”) setting forth, among other things, items the disclosure of which is necessary or
appropriate either in response to an express disclosure requirement contained in any provision
hereof or as an exception to one or more representations or warranties contained in Article
3 or one or more of its covenants contained in Article 5. The inclusion of any






7









 








information in the Emerald Disclosure Schedule shall not be deemed to be an admission or
acknowledgment, in and of itself, that such information is required by the terms hereof to be
disclosed, is material to the Emerald Parties, has resulted in or would result in a Material
Adverse Effect, or is outside the ordinary course of business.




     The Emerald Parties (other than EWS with respect to its Gulf Coast Business) make the
following representations and warranties jointly and severally, and represent and warrant that all
of the following representations and warranties are true as of the Original Agreement Date:



     3.1 Due Organization.


          (a) EWS Holdings is a limited liability company, duly organized, validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power and authority to
carry on its business in the places and in the manner as now conducted.


          (b) Each of WRH Gainesville, WRH Gainesville Holdings, WRH Orange City and EWS CF and EWS is a
limited liability company, duly organized, validly existing and in good standing under the laws of
the state of Florida, and each has all requisite power and authority to carry on its respective
business in the places and in the manner as now conducted, and each has all requisite power and
authority to carry on its respective business in the places and in the manner as now conducted.
The records and minutes books of each Emerald Company (other than EWS with respect to its Gulf
Coast Business), as heretofore made available to WCA Parent, are correct and complete with respect
to matters occurring on and after January 1, 2008, and will be delivered to WCA Parent at the
Closing.



     3.2 Authorization, Validity and Effect of Agreements; Non-Contravention.


          (a) The execution and delivery of this Agreement by each Emerald Party and the performance of
the transactions contemplated herein by each Emerald Party have been duly and validly authorized by
each Emerald Party. This Agreement constitutes, and all agreements
and documents contemplated hereby when executed and delivered pursuant hereto (collectively,
the “Transaction Documents”) for value received will constitute, the valid and legally binding
obligations of the Emerald Parties to this Agreement and each of the Transaction Documents to which
such Emerald Parties are parties enforceable in accordance with their terms, subject to (i)
applicable bankruptcy, insolvency or other similar laws relating to creditor’s rights generally and
(ii) general principles of equity, regardless of whether considered in a proceeding in equity or at
law.


          (b) Except as set forth in Section 3.2(b) of the Emerald Disclosure Schedule, the execution
and delivery of this Agreement by the Emerald Parties and each of the other Transaction Documents
to which such Emerald Parties are parties does not, and the consummation of the transactions
contemplated hereby by the Emerald Parties will not, (i) result in the breach of any term or
provision of, or constitute a default under, or result in the acceleration of or entitle any party
to accelerate, terminate or modify (whether after the giving of notice or the lapse of time or
both) any obligation under, or result in the creation or imposition of any Lien (defined below)
upon any part of the property of the Emerald Parties (other than EWS with respect to its Gulf Coast
Business) pursuant to any provision of any order, judgment,





8









 








arbitration award, injunction, decree,
indenture, mortgage, lease, license, lien, or other agreement or instrument to which any Emerald
Party (other than EWS with respect to its Gulf Coast Business) is a party or by which it is bound;
or (ii) violate or conflict with any provision of the respective Organizational Documents of the
Emerald Parties, except with respect to clause (i) for any such event that is not reasonably
expected to have a Material Adverse Effect on the Emerald Parties.




     3.3 Equity Interests of the Emerald Companies; Sufficiency of Assets.


          (a) All of the issued and outstanding shares of capital stock or limited liability company
interests of the Emerald Companies, as applicable, are set forth on Section 3.3(a) of the Emerald
Disclosure Schedule. All of the shares of capital stock and limited liability company interests of
the Emerald Companies, as applicable, have been duly authorized and validly issued, are fully paid
and nonassessable, are owned of record and beneficially by the parties set forth in Section 3.3(a)
of the Emerald Disclosure Schedule, and, except as set forth on Section 3.3(a) of the Emerald
Disclosure Schedule, are free and clear of all Liens.


          (b) Except as set forth on Section 3.3(b) of the Emerald Disclosure Schedule, the assets
owned, leased or licensed by the Emerald Companies (other than EWS with respect to its Gulf Coast
Business) constitute all of the assets, tangible and intangible, of any nature whatsoever,
necessary to operate the Acquired Businesses as currently conducted.



     3.4 Obligations to Issue or Sell Equity Interests. Except as set forth on Section 3.4
of the Emerald Disclosure Schedule, there are no (a) outstanding securities or obligations that are
convertible into or exchangeable for any shares of capital stock or limited liability company
interests, as applicable, or any other securities of any Emerald Company, or (b) right of first
refusal, option, warrant, call, conversion right, contracts,
arrangements or commitments, written or otherwise, of any kind which obligates any Emerald
Company, or under which any Emerald Company is or may become bound, to issue or sell any of its
authorized but unissued shares of capital stock or limited liability company interests, as
applicable, or any other securities or equity interests. Without limiting the generality of the
foregoing, except as set forth on Section 3.4 of the Emerald Disclosure Schedule, there is no valid
basis upon which any Person (other than EWS Holdings) may claim to be in any way the record or
beneficial owner of, or to be entitled to acquire (of record or beneficially), any share of capital
stock or limited liability company interest, as applicable, or any other security or equity
interest of any Emerald Company, and no Person has made or, to the Knowledge of the Emerald
Parties, threatened to make any such claim. In addition, no Emerald Company has any obligation
(contingent or otherwise) to purchase, redeem or otherwise acquire any of its shares of capital
stock or limited liability company interests, as applicable, or any other securities or equity
interests therein or to pay any dividend or make any distribution in respect thereof.



     3.5 Subsidiaries. Except as set forth in Section 3.5 of the Emerald Disclosure
Schedule, no Emerald Company (a) presently owns, of record or beneficially, or controls, directly
or indirectly, any capital stock, securities convertible into capital stock, membership interest,
partnership interest, limited partnership interest or any other equity interest in any corporation,
limited liability company, partnership, limited partnership, association or business



9









 





entity; or (b)
is, directly or indirectly, a participant in any joint venture, partnership or other non-corporate
entity, save and except any joint venture solely with another Emerald Company.




     3.6 Predecessor Status, etc. To the Knowledge of the Emerald Parties, set forth on
Section 3.6 of the Emerald Disclosure Schedule is a list of all of the names of all predecessors of
each Emerald Company (other than EWS with respect to its Gulf Coast Business), including the names
of any entities from whom each Emerald Company (other than EWS with respect to its Gulf Coast
Business) previously acquired significant assets or with whom each Emerald Company merged. To the
Knowledge of the Emerald Parties, except as disclosed in Section 3.6 of the Emerald Disclosure
Schedule, no Emerald Company has ever been a subsidiary or division of another company nor been a
part of an acquisition which was later rescinded.



     3.7 Financial Statements.


          (a) Prior to the Closing Date, the Emerald Parties have furnished to the WCA Parties the
audited financial statements (balance sheet, statement of operations and statement of cash flows
and related footnotes) of each of the Emerald Companies as, at and for the fiscal years ended
December 31, 2008 and December 31, 2009 (collectively, the “Emerald Financial Statements”). Prior
to the Original Agreement Date, the Emerald Parties have furnished to WCA Parent consolidated
audited financial statements (balance sheet, statement of operations and statement of cash flows
and related footnotes) of Waste Recyclers Holdings, LLC as, at and for the fiscal years ended
December 31, 2008 and December 31, 2009.


          (b) The Emerald Parties have furnished to the WCA Parties the unaudited financial statements
(balance sheet, statement of operations and statement of cash flows and related footnotes) of the
Emerald Companies (other than with respect to the Gulf Coast Business) as, at and for the three
month periods ended March 31, 2010, June 30, 2010 and September 30, 2010 and the one month and ten
month periods ended October 31, 2010 (collectively, the “Interim Emerald Financial Statements”).


          (c) The Emerald Financial Statements and the Interim Emerald Financial Statements,
collectively, fairly present in all material respects the financial condition and operating results
of the Emerald Companies (other than with respect to the Gulf Coast Business) as of the dates
indicated, and the results of their operations as of the dates and for the periods indicated, and
were prepared in accordance with GAAP, except as may be otherwise specified in such financial
statements or the notes thereto or in Section 3.7(c) of the Emerald Disclosure Schedule and except
that unaudited financial statements may not contain all footnotes required by GAAP and year-end
adjustments. Since January 1, 2008, the Emerald Companies have maintained a standard system of
accounting established in accordance with GAAP. Since January 1, 2008, there are no significant
deficiencies or material weaknesses in the internal controls over financial reporting of the
Emerald Companies.


          (d) the Final Account Worksheet, Final Deferred Revenue Worksheet and Approved Prepaid Expense
Amount delivered at Closing will be complete and accurate in all respects as of the Closing Date.



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     3.8 Liabilities and Obligations.


          (a) The Emerald Parties do not have any liabilities of any kind, character and description,
whether accrued, obsolete, secured or unsecured, contingent or otherwise, except (i) to the extent
clearly and accurately reflected and accrued for or fully reserved against in the Interim Emerald
Financial Statements, (ii) for liabilities and obligations which have arisen after October 31, 2010
(the “Latest Balance Sheet Date”) in the ordinary course of business consistent with past custom
and practice, (iii) as set forth in Section 3.8(a) of the Emerald Disclosure Schedule, (iv) with
respect to the Gulf Coast Business, (v) any Transfer Station Liabilities (as defined below) or (vi)
for liabilities that would not reasonably be expected to have a Material Adverse Effect on the
Emerald Parties.


          (b) At Closing, after taking into account the repayment of indebtedness of the Emerald
Companies provided for by Section 2.1, there will be no outstanding indebtedness or
liabilities outstanding under any operating leases for any of the Emerald Companies except for
those operating leases set forth on Section 3.8(b) of the Emerald Disclosure Schedule.


          (c) Section 3.8(c) of the Emerald Disclosure schedule lists each letter of credit of each
Emerald Company.



     3.9 Approvals. Except as set forth on Section 3.9 of the Emerald Disclosure Schedule, no authorization,
consent or approval of, or registration or filing with, any Governmental or Regulatory Authority or
any other Person is or was required to be obtained or made by any Emerald Party in connection with
the execution, delivery or performance of this Agreement or any of the Transaction Documents.



     3.10 Permits and Intangibles.


          (a) The Emerald Parties (other than EWS with respect to its Gulf Coast Business) hold all
certificates of need, permits, titles (including motor vehicle titles and current registrations),
fuel permits, Licenses, orders, approvals, franchises and certificates (“Permits”) (other than
those relating to environmental matters, which are exclusively covered in Section 3.26) as
are adequate for the operation of the Emerald Companies (other than EWS with respect to its Gulf
Coast Business), as presently constituted other than would not reasonably be expected to have a
Material Adverse Effect on the Emerald Parties and no Emerald Party has received any written notice
or, to the Knowledge of the Emerald Parties, any oral notice of violation of such Permits.


          (b) Other than with respect to EWS’ Gulf Coast Business, the Emerald Parties have delivered to
the WCA Parties a description and copies as of the Original Agreement Date, of all of the Emerald
Companies’ material reports, notifications, pending permit applications and engineering studies
filed or submitted or required to be filed or submitted to governmental agencies, any other
governmental approvals or applications for approval and of all material written notifications from
such governmental agencies with respect to the Permits, in each case with respect to such items
that have been received or obtained by the Emerald Parties since January 1, 2008 or which are
otherwise in the possession of the Emerald Parties.



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     3.11 Personal Property and Leases. Section 3.11 of the Emerald Disclosure Schedule
sets forth an accurate list and a complete description as of the Original Agreement Date of all of
the personal property and leases for equipment used by the Emerald Companies (other than EWS with
respect to its Gulf Coast Business) in excess of $10,000 per annum. All assets used by the Emerald
Companies (other than EWS with respect to its Gulf Coast Business) are either owned by an Emerald
Company (other than EWS with respect to its Gulf Coast Business) or leased or licensed as indicated
on Section 3.11 of the Emerald Disclosure Schedule. Except (i) as described on Section 3.11 of the
Emerald Disclosure Schedule, (ii) for Permitted Liens or (iii) for any Liens that remain in favor
of Comerica after the Closing Date as an administrative convenience in its capacity as both the
collateral agent under the Comerica Credit Facility and as the collateral agent on behalf of the
lenders to the WCA Parties, there are no Liens on any personal property or assets owned by any
Emerald Company (other than EWS with respect to its Gulf Coast Business).



     3.12 Customers; Contracts and Commitments.


          (a) Section 3.12(a) of the Emerald Disclosure Schedule sets forth the names and addresses of
all of the customers of the Emerald Companies (other than EWS with respect to its Gulf Coast
Business) as of the Original Agreement Date. To the Knowledge of the Emerald Parties, the
consummation of the transactions contemplated by this Agreement will not have a Material Adverse
Effect on the business relationship of the Emerald Companies (other than EWS with respect to its
Gulf Coast Business) with any customer and the Emerald Parties have received no written notice or,
to the Knowledge of the Emerald Parties, oral notice to such effect.


          (b) Section 3.12(b) of the Emerald Disclosure Schedule sets forth a true and complete list of
the following Emerald Companies’ contracts, agreements and other instruments and arrangements (i)
by which any Emerald Company (other than EWS with respect to its Gulf Coast Business) is bound or
(ii) to which any Emerald Company (other than EWS with respect to its Gulf Coast Business) is a
party (other than any Pension Plan, Welfare Plan or Benefit Plan) (the “Contracts”):



               (i) arrangements relating to providing solid waste collection, transportation or disposal
services to any Person or entity in excess of $50,000;



               (ii) Licenses, Permits and other material arrangements concerning or relating to real estate
owned or leased by any Emerald Company (other than EWS with respect to its Gulf Coast Business);



               (iii) employment, consulting, collective bargaining or other similar arrangements relating to
or for the benefit of current employees, independent contractors or consultants;



               (iv) agreements and instruments relating to the borrowing of money or obtaining of or
extension of credit;



               (v) brokerage or finder’s agreements;



               (vi) contracts involving a sharing of profits or expenses;



12









 





               (vii) acquisition or divestiture agreements;



               (viii) service or operating agreements, manufacturer’s representative agreements or
distributorship agreements in excess of $25,000;



               (ix) arrangements limiting or restraining any Emerald Company (other than EWS with respect to
its Gulf Coast Business) from engaging or competing in any lines of business or with any Person;



               (x) leases for personal property requiring aggregate annual payments in excess of $25,000;



               (xi) any arrangement with any labor union;



               (xii) any settlement or similar agreement with continuing financial or compliance obligations
to any Emerald Company (other than EWS with respect to its Gulf Coast Business); and



               (xiii) any other agreements or arrangements that are material to the operation of the Emerald
Companies (other than EWS with respect to its Gulf Coast Business).



     3.13 Real Property. Except as set forth on Section 3.13 of the Emerald Disclosure
Schedule:


          (a) WRH Gainesville and WRH Orange City each have good and marketable title to real property
owned by each of them described on Section 3.13 of the Emerald Disclosure Schedule
(respectively, each “Emerald Company’s Real Property”), free and clear of any Lien, other than the
Permitted Liens, and no Person has an option to purchase all or any portion of such real property;
provided that promptly following the delivery by the Title Insurer of the commitments for title
insurance referred to in Section 5.15, the Emerald Parties may update Section 3.13 of the
Emerald Disclosure Schedule prior to the Closing to reflect the information regarding each Emerald
Company’s Real Property received from the Title Insurer;


          (b) No Emerald Company’s Real Property is subject to any pending or, to the Knowledge of the
Emerald Parties, threatened, condemnation Proceedings against all or part thereof;


          (c) To the Knowledge of the Emerald Parties, no Emerald Company has ever granted any Person or
entity a lease, sublease, license, concession, or other right, written or oral, to use or occupy
such Emerald Company’s Real Property, nor has any Emerald Company ever entered into an option,
right of first refusal, or other agreement that would permit any Person to purchase all or part of
such Emerald Company’s Real Property;


          (d) No Emerald Company has ever owned, occupied, or conducted operations on any real property,
other than that respective Emerald Company’s Real Property or any other real property owned or
leased by any Affiliate of such Emerald Company; and



13









 







          (e) No Emerald Company (other than EWS with respect to its Gulf Coast Business) has ever
entered into an option, right of first refusal or other agreement that would permit or obligate
such Emerald Company to purchase any real property.



     3.14 Insurance. Set forth on Section 3.14 of the Emerald Disclosure Schedule is a
list of all current policies covering general liability, excess liability, product liability, auto
liability, foreign liability, all-risk property or environmental liability of the Emerald Companies
(other than EWS with respect to its Gulf Coast Business), as well as an accurate list of: (a) all
of their respective insurance loss runs and worker’s compensation claims received since January 1,
2008; (b) all open claims; and (c) to the Knowledge of the Emerald Parties, all circumstances
reasonably likely to result in a claim. All such policies are currently in full force and effect.
Except as set forth on Section 3.14 of the Emerald Disclosure Schedule, no insurance policy of any
Emerald Company (other than EWS with respect to its Gulf Coast Business) has ever been canceled, and
no Emerald Company (other than EWS with respect to its Gulf Coast Business) has ever been denied
insurance coverage. To the Knowledge of the Emerald Parties, Payroll Management, Inc. or its
Affiliates (“PMI”) provides workers compensation insurance on behalf of the Emerald Companies
pursuant to the Client Services Contract between EWS and PMI.



     3.15 Employment Matters. Section 3.15 of the Emerald Disclosure Schedule contains a
list of all employees engaged to perform services for the Emerald Companies (other than EWS with
respect to its Gulf Coast Business), including all employees (the “Emerald Company Employees”)
leased pursuant to a Client Service Contract between EWS and PMI. Prior to the Closing Date, the
Emerald Parties will have delivered to the WCA Parties a schedule setting forth the annual
compensation, hourly wages, daily rate of pay, sick pay and other benefits for all Emerald Company
Employees. PMI has paid or caused to be paid in full to all Emerald Company Employees all wages,
salaries, commissions on jobs finished, bonuses and other direct compensation due and payable as of
the Original Agreement Date for all services performed (including accrued vacation) as of the
Original Agreement Date and all amounts required to be reimbursed to the Emerald Company Employees.
The Emerald Companies (other than EWS with respect to its Gulf Coast Business) are in material
compliance with all federal, state, local and foreign laws and regulations respecting employment
and employment practices, terms and conditions of employment and wages and hours.



     3.16 Parachute Provisions. Set forth on Section 3.16 of the Emerald Disclosure
Schedule is a list of any and all of the Emerald Companies’ employment agreements and any other
agreements containing “parachute” provisions, and deferred compensation agreements, together with
copies of such plans, agreements and any trusts related thereto, and classifications of employees
covered thereby as of the Original Agreement Date.



     3.17 Benefit Plans; ERISA Compliance.


          (a) Section 3.17(a) of the Emerald Disclosure Schedule contains a list of each “employee
pension benefit plan” (as defined in Section 3(2) of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”)) (sometimes referred to in this Agreement as “Pension Plans”), “employee
welfare benefit plans” (as defined in Section 3(1) of ERISA) (sometimes referred to in this
Section 3.17 as “Welfare Plans”) or any other Benefit Plans, as





14









 








defined below maintained by
any Emerald Party (other than EWS with respect to its Gulf Coast Business) with respect to the
Emerald Company Employees.



          (b) No Emerald Company (other than EWS with respect to its Gulf Coast Business) maintains any
Pension Plan or Benefit Plan intended to be a tax qualified plan described Section 401(a) of the
Code, and no such plan which is maintained by any Emerald Party is or has been subject to the
minimum funding rules of Code Section 412 or ERISA Section 302, or the plan termination insurance
provisions of Title IV of ERISA.


          (c) There are no voluntary employee benefit associations maintained by any Emerald Company
(other than EWS with respect to its Gulf Coast Business) that are intended to be exempt from
federal income tax under Section 501(c)(9) of the Internal Revenue Code of 1986, as amended (the
“Code”).


          (d) Except as set forth in Section 3.17(d) of the Emerald Disclosure Schedule, neither the
execution of this Agreement nor the consummation of the transactions contemplated by this Agreement
will give rise to, or trigger, any change of control, severance or other similar provisions in any
Pension Plan, Welfare Plan or Benefit Plan that will obligate any Emerald Company (other than EWS
with respect to its Gulf Coast Business) to make such payment. Except as set forth in Section
3.17(d) of the Emerald Disclosure Schedule, the consummation of any transaction contemplated by
this Agreement will not result in any: (i) payment (whether of severance pay or otherwise)
becoming due from the Emerald Companies (other than EWS with respect to its Gulf Coast Business) to
any of their respective officers, employees, former employees or directors or to the trustee under
any “rabbi trust” or similar arrangement; (ii) benefit under any Benefit Plan applicable to the
Emerald Companies (other than EWS with respect to its Gulf Coast Business) being established or
becoming accelerated, vested or payable; or (iii) payment or series of payments by any Emerald
Company (other than EWS with respect to its Gulf Coast Business), directly or indirectly, to any
Person that would constitute a “parachute payment” within the meaning of Section 280G of the Code.


          (e) Except as set forth in Section 3.17(e) of the Emerald Disclosure Schedule, no Emerald
Company (other than EWS with respect to its Gulf Coast Business) provides any material
post-retirement medical, health, disability or death protection coverage or contribute to or
maintain any employee welfare benefit plan which provides for medical, health, disability or death
benefit coverage following termination of employment by any officer, director or employee except as
is required by Section 4980B of the Code or other applicable statute, nor has any Emerald Company
(other than EWS with respect to its Gulf Coast Business) made any representations, agreements,
covenants or commitments to provide that coverage.


          (f) With respect to any Welfare Plan applicable to the Emerald Companies (other than EWS with
respect to its Gulf Coast Business), except as would not reasonably be expected to result in
material liability to the Emerald Companies (i) each such Welfare Plan that is a group health plan,
as such term is defined in Section 5000(b)(1) of the Code, complies in all material respects with
any applicable requirements of Part 6 of Title I of ERISA and Section 4980B(f) of the Code and (ii)
each such Welfare Plan (including any such plan covering retirees or other former employees) may be
amended or terminated with respect to health claims incurred after the date of such amendment
(presuming proper notice thereof) without liability to any





15









 








Emerald Company (other than EWS with
respect to its Gulf Coast Business) on or at any time after the Closing Date.



          (g) Except as would not reasonably be expected to result in material liability to the Emerald
Companies, all contributions by any Emerald Company (other than EWS with respect to its Gulf Coast
Business) required by law or by a collective bargaining or other agreement to be made under any
Pension Plan, Welfare Plan or Benefit Plan with respect to all periods through the Closing Date,
including a pro rata share of contributions due for the current plan year, will have been made by
such date.


          (h) No Emerald Company (other than EWS with respect to its Gulf Coast Business) has nor, as of
the Closing, will any Emerald Company (other than EWS with respect to its Gulf Coast Business)
have, any liability or obligation for taxes, penalties, contributions, losses, claims, damages,
judgments, settlement costs, expenses, costs, or any other liability or liabilities of any nature
whatsoever arising out of or in any manner relating to any Pension Plan, Welfare Plan or Benefit
Plan (including but not limited to employee benefit plans such as foreign plans which are not
subject to ERISA), that has been, or is, contributed to by any entity, whether or not incorporated,
which is deemed to be under common control (as defined in Section 414 of the Code), with any such
Emerald Company (other than EWS with respect to its Gulf Coast Business) as of or prior to the
Closing.



     3.18 Conformity with Law. Except as set forth on Section 3.18 of the Emerald
Disclosure Schedule:


          (a) Each Emerald Company (other than EWS with respect to its Gulf Coast Business) has complied
in all material respects with, and no Emerald Company (other than EWS with respect to its Gulf
Coast Business) is in material default under, any ruling, directive, order, award, judgment or
decree of any Governmental or Regulatory Authority except where such failure would not be
reasonably expected to have a Material Adverse Effect on the Emerald Parties.


          (b) There are no Proceedings pending or, to the Knowledge of the Emerald Parties, threatened,
against or affecting any Emerald Company (other than EWS with respect to its Gulf Coast Business),
at law or in equity, or before or by any Governmental or Regulatory Authority and no notice of any
Proceeding, pending or, to the Knowledge of the Emerald Parties, threatened, has been received by
any Emerald Company (other than EWS with respect to its Gulf Coast Business) that would reasonably
be expected to have a Material Adverse Effect on such Emerald Company.


          (c) Since January 1, 2008, the Emerald Companies (other than EWS with respect to its Gulf
Coast Business) have conducted and are conducting their respective operations in material
compliance with the Law, and, to the Knowledge of the Emerald Parties, no Emerald Company (other
than EWS with respect to its Gulf Coast Business) has received any notification of any asserted
present or past unremedied failure by it to comply with any Law, in either case that would
reasonably be expected to have a Material Adverse Effect on such Emerald Company.




16











 





     3.19 Taxes.



          (a) Except as set forth on Section 3.19(a)-1 of the Emerald Disclosure Schedule, each Emerald
Party has timely filed all federal and other Tax Returns that it was required to file for all
Taxable periods in all jurisdictions in which each Emerald Party has established a Taxable presence
and has paid all Taxes (whether or not shown as due on a filed Tax Return). Each filed Tax Return
is true, complete and correct and each Emerald Party has made all deposits required with respect to
Taxes. Except as set forth on Section 3.19(a)-2 of the Disclosure Schedule, none of the Emerald
Parties has waived any statute of limitations in respect of Taxes or agreed to an extension of time
with respect to a Tax assessment or deficiency for any Taxable period. None of the Tax Returns for
any Emerald Party for any Taxable period is currently the subject of audit by a Taxing Authority.




          (b) None of the Emerald Companies is a party to any Tax allocation or sharing agreement or
similar contract or arrangement. Except as set forth on Section 3.19(b)-1 of the Emerald
Disclosure Schedule, none of the Emerald Parties has been a member of an affiliated group filing a
consolidated federal Tax Return for any Taxable period and, except as set forth on Section
3.19(b)-2 of the Emerald Disclosure Schedule, no Emerald Party has received written notice of any
claim, whether pending or threatened, for Taxes; there are no requests for rulings pending by any
Emerald Company with any Taxing Authority; no material penalty or deficiency in respect of any
Taxes that has been assessed against any Emerald Party remains unpaid.




          (c) (i) No Emerald Company is a subchapter S corporation within the meaning of Sections 1361
and 1362 of the Code, (ii) no Emerald Company is, or owns any equity interests in, any “qualified
subchapter S subsidiary” within the meaning of Sections 1361(b)(3)(B) and 1362 of the Code, and
(iii) each Emerald Company is a disregarded entity for U.S. federal income Tax purposes.




          (d) There are no Liens on any of the assets of any Emerald Party that arose in connection with
any failure (or alleged failure) to pay any Tax. Further, all of the assets of the Emerald Parties
have been properly listed and described on the property tax rolls for all periods prior to and
including the Closing Date, and no portion of the assets of the Emerald Parties constitute omitted
property for property tax purposes.




          (e) No claim has ever been made by a Taxing Authority in a jurisdiction where any Emerald
Party does not file Tax Returns that any Emerald Party is or may be subject to taxation by that
jurisdiction.




          (f) Each of the Emerald Parties has withheld and paid all Taxes required to have been withheld
and paid in connection with any amounts paid or owing to any employee, independent contractor,
creditor stockholder or other third party.




          (g) For the time period on or before January 6, 2008, to the Knowledge of the Emerald Parties,
and for the time period beginning after January 6, 2008, none of the Emerald Parties (i) has been a
stockholder of a “controlled foreign corporation” as defined in Section 957 of the Code (or any
similar provision of United States state, local or foreign law), (ii) has been a stockholder of a “passive foreign investment company” within the meaning of Section 1297 of




17









 







the Code; or (iii) has engaged in a trade or business, had a permanent establishment (within
the meaning of an applicable Tax treaty) or otherwise become subject to Tax jurisdiction in a
country other than the country of its formation.




          (h) Each Emerald Party has disclosed on its federal income Tax Returns all positions taken
therein that could give rise to a substantial understatement of federal income Tax within the
meaning of Code Section 6662.




          (i) Except as set forth on Section 3.19(i) of the Emerald Disclosure Schedule, no Emerald
Party will be required to include any item of income in, or exclude any item of deduction from,
Taxable income for any Taxable period (or portion thereof) ending after the Closing Date as a
result of any:




               (i) change in the method of accounting for a Taxable period ending on or prior to the Closing
Date;



               (ii) “closing agreement” as described in Code Section 7121 (or any corresponding or similar
provision of state, local or foreign income Tax law) executed on or prior to the Closing Date;



               (iii) Intercompany transaction or excess loss account described in Treasury Regulations under
Code Section 1502 (or any corresponding or similar provision of state, local or foreign Tax law);
or



               (iv) installment sale or open transaction disposition made on or prior to the Closing Date or
prepaid amount received on or prior to the Closing Date.



          (j) The unpaid Taxes of the Emerald Companies (i) did not, as of September 30, 2010, exceed
the reserve for Tax liability (rather than any reserve for deferred Taxes established to reflect
timing differences between book and Tax income) set forth on the face of the Interim Emerald
Financial Statements (rather than in any notes thereto) and (ii) do not exceed that reserve as
adjusted for the passage of time through the Closing Date in accordance with the past custom and
practice of Emerald Companies in filing their Tax Returns.




          (k) For the time period on or before January 6, 2008, to the Knowledge of the Emerald Parties,
and for the time period beginning after January 6, 2008, none of the Emerald Parties has any
liability for the Taxes of any other Person, other than another Emerald Party, under Treasury
Regulations Section 1.1502—6 (or any similar provision of United States state, local, or foreign
Law), as a result of being a member of a consolidated or combined group (other than a consolidated
or combined group the common parent of which is Waste Recyclers Holdings, LLC), as a transferee, by
contract, or otherwise.




          (l) For the time period on or before January 6, 2008, to the Knowledge of the Emerald Parties,
and for the time period beginning after January 6, 2008, none of the Emerald Companies has
constituted either a “distributing corporation” or a “controlled corporation” in a distribution of
stock qualifying for tax-free treatment under Section 355 of the Code (i) in the two years prior to
the Original Agreement Date, or (ii) in a distribution which could otherwise





18









 







constitute part of a “plan” or “series of related transactions” (within the meaning of Section
355(e) of the Code) that includes the transactions contemplated by this Agreement.




          (m) None of the Emerald Parties has been a party to a transaction that is or is substantially
similar to a “reportable transaction,” within the meaning of Treasury Regulations Section 1.6011
4(b), or any other transaction requiring disclosure under analogous provisions of United States,
state, local or foreign Tax law.




          (n) None of the Emerald Parties has engaged in any activity in a state of the United States or
political subdivision of a state of the United States (which activity creates a taxable nexus or
permanent establishment) where Tax Returns have not been filed. None of the Emerald Parties has
entered into any voluntary disclosure agreements with any Taxing Authority.




          (o) WCA Parent has been provided with true and complete copies of (i) all Tax Returns of the
Emerald Companies for all taxable periods ending after December 31, 2006, and (ii) all revenue
agents’ reports and other similar reports relating to any audit, examination or contest of the Tax
Returns of the Emerald Companies for all taxable periods ending after December 31, 2006.




     3.20 Completeness; No Defaults. EWS Holdings has made available to the WCA Parties
true, correct and complete copies of: (a) the operating agreements, as amended, and record and
minute books of each Emerald Company that is a limited liability company with respect to matters
occurring on or after January 1, 2008, (b) the certificates of incorporation and bylaws, as
amended, and record and minute books of each Emerald Company that is a corporation with respect to
matters occurring on or after January 1, 2008 and (c) each lease, instrument, agreement, license,
permit, certificate or other document that are included on Section 3.11, Section 3.12 and Section
3.13 of the Emerald Disclosure Schedule (collectively, the “Delivered Documents”). No Emerald
Party hereto is in material default under any of the Delivered Documents.



     3.21 Government Contracts. Except as set forth on Section 3.21 of the Emerald
Disclosure Schedule, no Emerald Company (other than EWS with respect to its Gulf Coast Business) is
now, and since January 1, 2008, has not been, a party to any governmental contract subject to price
redetermination or renegotiation.



     3.22 Absence of Changes. Except as set forth in Section 3.22 of the Emerald
Disclosure Schedule, since October 31, 2010 there has not been:



          (a) any event having a Material Adverse Effect on the financial condition, assets, liabilities
(contingent or otherwise), income or business of any Emerald Company (other than EWS with respect
to its Gulf Coast Business);




          (b) any damage, destruction or loss (whether or not covered by insurance), change in zoning,
or change in any law, rule, regulation, ordinance, or permit condition, materially adversely
affecting the properties or business of any Emerald Company (other than EWS with respect to its
Gulf Coast Business) with a value in excess of $50,000;





19









 








          (c) any change in the authorized or outstanding capital stock or limited liability company
interests, as applicable, of any Emerald Company or any grant of any options, warrants, calls,
conversion rights or commitments;




          (d) any declaration or payment of any dividend or distribution in respect of the capital stock
or limited liability company interests, as applicable, or any direct or indirect redemption,
purchase or other acquisition of any of the capital stock or limited liability company interests,
as applicable, of any Emerald Company;




          (e) any bonus or increase in the compensation, sales commissions, fringe benefits or fee
arrangements payable or that have become payable by any Emerald Company (other than EWS with
respect to its Gulf Coast Business) to any of its officers, directors, employees, consultants or
agents or any change in the method by which sales commissions are calculated and paid;




          (f) any work interruptions, labor grievances or claims filed or, to the Knowledge of the
Emerald Parties, any proposed law or regulation or any event or condition of any character, that
could reasonably be expected to have a Material Adverse Effect on the business or future prospects
of the Emerald Companies (other than EWS with respect to its Gulf Coast Business);




          (g) any sale or transfer, or any agreement to sell or transfer, other than in the ordinary
course of business, any assets, property or rights of any Emerald Company (other than EWS with
respect to its Gulf Coast Business) to any Person;




          (h) any cancellation, or agreement to cancel, any indebtedness or other obligation owing to
any Emerald Company (other than EWS with respect to its Gulf Coast Business) outside of the
ordinary course of business consistent with past practices;




          (i) any plan, agreement or arrangement granting any preferential rights to purchase or acquire
any interest in the assets, property or rights of any Emerald Company (other than EWS with respect
to its Gulf Coast Business) or requiring consent of any party to the transfer and assignment of any
such assets, property or rights;




          (j) any purchase or acquisition, or agreement, plan or arrangement to purchase or acquire, any
property, rights or assets of any Emerald Company (other than EWS with respect to its Gulf Coast
Business);




          (k) any waiver of any material rights or claims of any Emerald Company (other than EWS with
respect to its Gulf Coast Business);




          (l) any breach, amendment, termination, notice of non-renewal or material changes in the terms
and conditions of any material contract, agreement, license, permit or other right to which any Emerald Company (other than EWS with respect to its Gulf Coast Business) is
a party that would reasonably be expected to have a Material Adverse Effect on any Emerald Company;




20









 








          (m) any transaction by any Emerald Company (other than EWS with respect to its Gulf Coast
Business) outside the ordinary course of its business;




          (n) any written notice of any claim, whether threatened or pending, for any material Taxes or
notice of any material penalty or deficiency in respect of any Taxes that has been assessed against
any Emerald Party and no other event has occurred that would be reasonably be expected to cause a
material increase in the Tax reserves or effective Tax rate of any Emerald Company; or




          (o) any amendment to any Tax Returns, or any election made, any accounting method or fiscal
year adopted, or any position taken in any Tax Returns relating to any of the Emerald Parties that
is inconsistent with any such election, accounting method, fiscal year or position previously made,
adopted or taken with respect to any Emerald Party.




     3.23 Deposit Accounts; Powers of Attorney; Escheatment.



          (a) Set forth on Section 3.23(a) of the Emerald Disclosure Schedule is a list, as of the
Original Agreement Date, of: (i) the name of each financial institution in which each such Emerald
Company (other than EWS with respect to its Gulf Coast Business) has accounts or safe deposit
boxes; (ii) the names in which such accounts or boxes are held; and (iii) the type of accounts.




          (b) No Person holds a general or special power of attorney from any Emerald Company (other
than EWS with respect to its Gulf Coast Business).




          (c) Set forth on Section 3.23(c) of the Emerald Disclosure Schedule is a list of all financial
assurance instruments issued by or on behalf of each Emerald Company (other than EWS with respect
to its Gulf Coast Business), including the names of the surety, the obligee and the obligor for
each such instrument, the penal sum for each such instrument, the purpose of such instrument, and
the termination or renewal date of each such instrument.




          (d) To the Knowledge of the Emerald Parties, there is no property or obligation of the Emerald
Parties, including uncashed checks to vendors, customers or employees, non-refunded overpayments or
credits, that is escheatable or payable to any state or municipality under any applicable
escheatment or unclaimed property Laws or that may at any time become escheatable to any state or
municipality under any such Laws.




     3.24 Proprietary Rights. Except as set forth on Section 3.24 of the Emerald
Disclosure Schedule, no Emerald Company (other than EWS with respect to its Gulf Coast Business)
owns or has any right or interest in any registered trademarks, trade names, patents, patent
applications or registered copyrights (“Intellectual Property”) or any license or assignment with respect thereto. No
Emerald Company (other than EWS with respect to its Gulf Coast Business) has granted to any third
party a License or other authorization to use any Intellectual Property of such Emerald Company
(except to any other one or more of the Emerald Companies) and no third party owns any ownership
interest in or holds any Lien on any Emerald Company’s Intellectual Property (other than with
respect to EWS’ Gulf Coast Business). No Emerald Party has received any notification that any
Emerald Company (other than EWS with respect to its Gulf Coast Business) has infringed upon or is
infringing upon, or has engaged in or



21









 




is engaging in any unauthorized use or misappropriation of,
any Intellectual Property owned by or belonging to any other Person that would reasonably be
expected to have a Material Adverse Effect on such Emerald Company; and there is no pending or, to
the Knowledge of the Emerald Parties, threatened claim, and no basis for the assertion of any valid
claim, against any Emerald Company (other than EWS with respect to its Gulf Coast Business) with
respect to any such infringement, unauthorized use or misappropriation. Except for software used
in connection with the operation of the Emerald Companies, no Emerald Company (other than EWS with
respect to its Gulf Coast Business) has entered into any licensing agreements to use the
Intellectual Property of third parties, and no Emerald Company (other than EWS with respect to its
Gulf Coast Business) owes to any third parties royalties for the use of Intellectual Property.




     3.25 Relations with Governments. Since January 1, 2008, no Emerald Company (other
than EWS with respect to its Gulf Coast Business) nor to the Knowledge of the Emerald Parties, any
shareholder, member, manager, director, officer, agent, employee or other person acting on behalf
of any Emerald Company, has used any funds of any Emerald Company (other than EWS with respect to
its Gulf Coast Business) for improper or unlawful contributions, payments, gifts or entertainment,
or made any improper or unlawful expenditures relating to political activity to domestic or foreign
government officials or others. Each Emerald Company (other than EWS with respect to its Gulf
Coast Business) has adequate financial controls to prevent such improper or unlawful contributions,
payments, gifts, entertainment or expenditures. To the Knowledge of the Emerald Parties, no
Emerald Company (other than EWS with respect to its Gulf Coast Business) or any partner,
shareholder, member, manager, director, officer, agent, employee or other person acting on behalf
of such Emerald Company, has accepted or received any improper or unlawful contributions, payments,
gifts or expenditures. To the Knowledge of the Emerald Parties, the Emerald Companies (other than
EWS with respect to its Gulf Coast Business) have at all times complied, and are in compliance, in
all material respects, with the Foreign Corrupt Practices Act and in all material respects with all
foreign laws and regulations relating to prevention of corrupt practices.



     3.26 Environmental Matters. The Emerald Companies and the Emerald Parties have made
available to the WCA Parties all of the material correspondence, agreements, notices or other
documents related to the items set forth on Section 3.26 of the Emerald Disclosure Schedule.



     Except as set forth in Section 3.26 of the Emerald Disclosure Schedule:



          (a) the Emerald Companies and all property (whether real or personal) which is or was formerly
leased, used, operated, owned or managed in whole or in part in any manner by any Emerald Company
or any of its organizational predecessors (individually, any “Business Facility”, and collectively,
the “Business Facilities”) and all operations of the Emerald Companies and their respective
Business Facilities, are in material compliance and to the Knowledge of Emerald Company have been
in material compliance with all applicable Environmental Laws;




          (b) each Emerald Company and its Business Facilities has obtained and is in material
compliance with all material permits, Licenses, registrations, approvals and other authorizations
(including all applications for all of the foregoing) required under any








22









 







Environmental Law for the
business of such Emerald Company as currently conducted (collectively, “Environmental Permits”),
and Section 3.26(b) of the Emerald Disclosure Schedule contains an accurate and complete listing of
all of the Business Facilities and all of the material Environmental Permits of each Emerald
Company;




          (c) there is no present, or to the Knowledge of the Emerald Parties, past event, condition or
circumstance that may reasonably be expected to interfere with the conduct of any Emerald Company’s
business in the manner now conducted relating to such Emerald Company’s compliance with
Environmental Laws or which constitutes a material violation thereof, or which could reasonably be
expected to have a Material Adverse Effect upon the Emerald Parties;




          (d) during the term of each Emerald Company’s ownership of or control of its Business
Facilities (the “Ownership Term”), each Emerald Company and its respective Business Facilities, and
any operations thereon, have not been and are not currently subject to an Environmental Claim;




          (e) there are no Environmental Claims or investigations pending or, to the Knowledge of the
Emerald Parties, threatened, involving the release or threat of release of any Polluting Substances
from or on (i) any Business Facility of any Emerald Company, or (ii) any other property where
Polluting Substances generated by any Emerald Company or originating from any Business Facility of
any Emerald Company have been recycled, stored, treated, released or disposed, or (iii) any
property to which Polluting Substances were transported by any Emerald Company or (iv) any property
on which any Emerald Company performs or performed Remediation;




          (f) there are no Polluting Substances on any Business Facility of any Emerald Company in an
amount or concentration which would require: (i) reporting to any governmental authority under
release reporting, emergency planning, or similar requirements of Environmental Laws and which have
not been so reported; or (ii) Remediation to comply with the requirements of Environmental Laws;




          (g) no Emerald Company has undertaken Remediation of any facility or site or entered into any
agreement or extended any offer for the payment of costs associated with such activity;




          (h) each Emerald Company has filed all material notices, notifications, financial assurance,
applications and all similar documents which are required to be obtained or filed for the operation
of its business or the use or operation of any of its Business Facilities and has not received any
notification that such filings are incomplete or insufficient;




          (i) there are no Environmental Claims covered by any of the Emerald Companies’ insurance
policies for which any Emerald Company has failed to notify its insurers within contractually
required notice periods or for which insurers have denied coverage or reserved their rights to deny
coverage;




          (j) The Emerald Company has not knowingly made false or misleading statements in any current
or prior Environmental Permit or application for an Environmental






23









 







Permit, including those currently
pending, relating to any Emerald Company or any of its Business Facilities;




          (k) the transactions contemplated by this Agreement will not require the amendment or transfer
of any of the Environmental Permits;




          (l) no Emerald Company is now, and to the Knowledge of the Emerald Parties, no Emerald Company
is reasonably expected to be in the future (based solely upon the Environmental Laws as they exist
on the Closing Date), as a result of the operation or condition of any Business Facility of any
Emerald Company or the businesses thereon as conducted since January 1, 2007 or at Closing, subject
to any material: (i) contingent liability in connection with any Release or threatened Release into
the environment other than the normal or routine disposal of solid waste, whether on or off the
Properties or any Business Facility of any Emerald Company; (ii) Remediation requirements under
Environmental Laws, or any reporting requirements related thereto, except for ordinary closure
requirements under Environmental Laws; or (iii) consent order, compliance order or administrative
order relating to or issued under any Environmental Law;




          (m) there are no obligations, undertakings or liabilities arising out of or relating to
Environmental Laws which any Emerald Company has agreed to, assumed or retained, by contract or
otherwise, except as required by Environmental Law or referenced in the Environmental Permits; and




          (n) all storage tanks on or under any Business Facility of any Emerald Company, have been
maintained and remediated in material compliance with all Environmental Laws.




     3.27 No Broker’s or Finder’s Fees. Except for Livingstone Partners LLC, no agent,
broker, investment banker, person or firm has acted directly or indirectly on behalf of the Emerald
Parties or any Emerald Company in connection with this Agreement or the transactions contemplated
herein who will be entitled to any broker’s or finder’s fee or any other commission or similar fee
or expense, directly or indirectly, in connection with this Agreement or the transactions
contemplated herein.



     3.28 Litigation. There are no Proceedings pending or, to the Knowledge of the Emerald Parties, threatened
against any Emerald Company (other than EWS with respect to its Gulf Coast Business), or
challenging the validity or propriety of the transactions contemplated by this Agreement or any
Environmental Permit or other permit or governmental authorization; to the Knowledge of the Emerald
Parties, there is no basis or ground for any such Proceedings; and there is no outstanding order,
writ, injunction or decree of any court, administrative agency, governmental body or arbitration
tribunal against any Emerald Party (other than EWS with respect to its Gulf Coast Business) or its
assets, which relates to or would reasonably be expected to have a Material Adverse Effect on such
Emerald Company. Set forth on Section 3.28 of the Emerald Disclosure Schedule are all Proceedings
known to the Emerald Parties (other than EWS with respect to its Gulf Coast Business) to have
commenced since January 1, 2008 to which any Emerald Company (other than EWS with respect to its
Gulf Coast Business) was a party, or which, to the Knowledge of the Emerald Parties, were
threatened against any Emerald Company



24









 




(other than EWS with respect to its Gulf Coast Business), or
which relate in any manner to the assets of any Emerald Company
(other than EWS with respect to its Gulf Coast Business).




ARTICLE IV



4. Representations and Warranties of the WCA Parties. Prior to or upon the execution of this
Agreement, the WCA Parties have delivered to EWS Holdings a schedule (the “WCA Parties’ Disclosure
Schedule”) setting forth, among other things, items the disclosure of which is necessary or
appropriate either in response to an express disclosure requirement contained in any provision
hereof or as an exception to one or more representations or warranties contained in Article
4. The inclusion of any information in the WCA Disclosure Schedule shall not be deemed to be
an admission or acknowledgment, in and of itself, that such information is required by the terms
hereof to be disclosed, is material to the WCA Parties, has resulted in or would result in a
Material Adverse Effect, or is outside the ordinary course of business.




     The WCA Parties make the following representations and warranties jointly and severally, and
represent and warrant that all of the following representations and warranties are true as of the
Original Agreement Date:



     4.1 Organization; Standing and Power. The WCA Parties are corporations duly
organized, validly existing and in good standing under the laws of the State of Delaware and have
all requisite power and authority to own, operate and lease its properties and to carry on its
business in the places and in the manner as now being conducted.



     4.2 Capitalization.



          (a) As of the Original Agreement Date, the authorized capital stock of WCA Parent consists of
50,000,000 shares common stock and 8,000,000 shares of preferred stock. No other capital stock is
authorized. As of the Original Agreement Date, there were 20,610,832
shares of WCA Parent Common Stock and 913,802 shares of WCA Parent preferred stock
outstanding, and 1,073,957 shares of WCA Parent Common Stock and no shares of WCA Parent preferred
stock were held in WCA Parent’s treasury. As of the Original Agreement Date, 10,173,640 shares of
WCA Parent Common Stock were reserved for issuance upon the conversion of WCA Parent preferred
stock and the exercise of long-term stock awards, stock options and other equity-type rewards
pursuant to the Fourth Amended and Restated 2004 WCA Waste Corporation Incentive Plan (the “WCA
Parent Stock Plan”) and 2,000,000 shares of WCA Parent Common Stock (the “Live Earth Earn-Out
Shares”) reserved for issuance pursuant to the earn-out provisions set forth in the Equity Interest
and Asset Purchase Agreement dated December 9, 2009 by and between WCA Parent, Live Earth LLC and
certain other parties (the “Live Earth Agreement”). All of the issued and outstanding shares of
WCA Parent Common Stock and preferred stock have been duly authorized and validly issued and are
fully paid, nonassessable and free of preemptive rights, with no personal liability attaching to
the ownership thereof. Except for the equity awards issuable pursuant to WCA Parent Stock Plan,
the Live Earth Earn-Out Shares and WCA Parent Common Stock issuable upon conversion of WCA Parent
preferred stock, WCA Parent does not have and is not bound by any outstanding subscriptions,
options, warrants, calls, commitments or agreements of any character calling for the purchase or
issuance of any shares of WCA Parent Common Stock or any other equity



25









 




securities of WCA Parent or any securities representing the right to purchase or otherwise receive any shares of WCA Parent
Common Stock or preferred stock.




          (b) Section 4.2(b) of the WCA Parties’ Disclosure Schedule attached hereto sets forth a true
and correct list of all of WCA Parent’s Subsidiaries as of the Original Agreement Date. WCA parent
owns, directly or indirectly, all of the issued and outstanding shares of capital stock of each of
the subsidiaries of WCA Parent, free and clear of all Liens other than Permitted Liens, and all of
such shares are duly authorized and validly issued and are fully paid, nonassessable and free of
preemptive rights. No Subsidiary of WCA Parent has or is bound by any outstanding subscriptions,
options, warrants, calls, commitments or agreements of any character calling for the purchase or
issuance of any shares of capital stock or any other equity security of such subsidiary or any
securities representing the right to purchase or otherwise receive any shares of capital stock or
any other equity security of such subsidiary.




     4.3 Authorization, Validity and Effect of Agreements; Non-contravention. The
execution and delivery of this Agreement by each WCA Party and the performance of the transactions
contemplated herein by each WCA Party have been duly and validly authorized by each WCA Party.
This Agreement constitutes, and all Transaction Documents when executed and delivered pursuant
hereto for value received will constitute, the valid and legally binding obligations of the WCA
Parties to this Agreement and each of the Transaction Documents to which such WCA Parties are
parties enforceable in accordance with their terms, subject to (i) applicable bankruptcy,
insolvency or other similar laws relating to creditor’s rights generally and (ii) general
principles of equity, regardless of whether considered in a proceeding in equity or at law. The
execution and delivery of this Agreement by the WCA Parties and each of the other Transaction
Documents to which such WCA Parties are parties does not, and the consummation of the transactions
contemplated hereby by the WCA Parties will not except as set forth on Section 4.3 of the WCA
Parties’ Disclosure Schedule, (i) require the consent, approval or authorization of, or
declaration, filing or registration with, any governmental or regulatory
authority or any third party; (ii) result in the breach of any term or provision of, or
constitute a default under, or result in the acceleration of or entitle any party to accelerate,
terminate or modify (whether after the giving of notice or the lapse of time or both) any
obligation under, or result in the creation or imposition of any Lien upon any part of the property
of the WCA Parties pursuant to any provision of any order, judgment, arbitration award, injunction,
decree, indenture, mortgage, lease, license, lien, or other agreement or instrument to which any
WCA Party is a party or by which it is bound; or (iii) violate or conflict with any provision of
the respective Certificates of Incorporation or Bylaws, each as amended to the Original Agreement
Date and as applicable, of the WCA Parties.



     4.4 SEC Reports; Financial Statements.



          (a) Since January 1, 2008, WCA Parent has filed all reports, schedules, forms, statements and
other documents required to be filed by WCA Parent under, and in accordance with the requirements
of, each of the Securities Act of 1933, as amended (the “Securities Act”), and the Exchange Act, as
the case may be, and the rules and regulations thereunder (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein, being collectively referred to
herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of
filing and has filed any such SEC Reports prior to the






26









 







expiration of any such extension. Except to the extent corrected by subsequent SEC Reports or amendments to a prior SEC Report, as of their
respective dates, the SEC Reports complied in all material respects with the requirements of the
Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, at the time when
filed, contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The certifications of the SEC
Reports by the chief executive officer and the chief financial officer are each true and correct.
No subsidiary of WCA Parent is or has been required to file any form report, registration statement
or other document with the SEC.




          (b) The financial statements and notes contained or incorporated by reference in the SEC
Reports of WCA Parent comply in all material respects with applicable accounting requirements and
the rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such
financial statements (i) have been prepared in accordance with GAAP and Regulation S-X of the SEC,
subject, in the case of interim financial statements, to normal recurring year-end adjustments (the
effect of which are not expected to be, individually or in the aggregate, materially adverse) and
the omission of notes to the extent permitted by Regulation S-X of the SEC and (ii) fairly present
in all material respects the financial position of WCA Parent and its Subsidiaries as of and for
the dates thereof and the results of operations, changes in stockholders’ equity, and cash flows
for the periods then ended. The financial statements referred to in this Section 4.4(b)
reflect the consistent application of such accounting principles throughout the periods involved,
except as disclosed in the notes to such financial statements. No financial statements of any
Person other than WCA Parent and its Subsidiaries are required by GAAP to be included in the
consolidated financial statements of WCA Parent.




          (c) WCA Parent and its Subsidiaries maintain disclosure controls and procedures required by
Rule 13a-15 or 15d-15 under the Exchange Act. Such disclosure controls and procedures are
reasonably designed to ensure that information required to be disclosed by WCA Parent is recorded
and reported on a timely basis to the individuals responsible for the preparation of WCA Parent’s
filings with the SEC and other public disclosure documents. WCA Parent and its Subsidiaries
maintain internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as
applicable, under the Exchange Act). WCA Parent has completed an evaluation of the effectiveness
of its internal control over financial reporting in compliance with Section 404 of the Sarbanes
Oxley Act for the year ended December 31, 2009, and such evaluation concluded that such controls
were effective. WCA Parent has disclosed and identified, based on the most recent evaluation of
its chief executive officer and its chief financial officer prior to the Original Agreement Date,
for WCA Parent’s auditors and the audit committee of WCA Parent’s board of directors (i) any
significant deficiencies in the design or operation of its internal controls over financial
reporting that are reasonably likely to adversely affect WCA Parent’s ability to record, process,
summarize and report financial information, (ii) any material weaknesses in internal control over
financial reporting and (iii) any fraud, whether or not material, that involves management or other
employees who have a significant role in WCA Parent’s or its subsidiaries’ internal control over
financial reporting.




          (d) Since the date of the latest unaudited financial statements included within the SEC
Reports, there has been no event, occurrence or development that has had or that could reasonably
be expected to result in a Material Adverse Effect with respect to WCA Parent. Since



27









 




September 30, 2010, each WCA Party (i) has been operated in all material respects in the ordinary course of
business and (ii) has not made any material changes in its respective capital or corporate
structures.




          (e) WCA Parent is in compliance with the applicable listing rules of NASDAQ and has not
received any notice from NASDAQ asserting any non-compliance with such rules. To the Knowledge of
the WCA Parties, each director and executive officer of WCA Parent has filed with the SEC on a
timely basis all statements required by Section 16(a) of the Exchange Act and the rules and
regulations thereunder.




     4.5 Litigation. Except as set forth in the SEC Reports, there are no Proceedings
pending or, to the Knowledge of the WCA Parties, threatened against any WCA Parent or any of its
Subsidiaries, or challenging the validity or propriety of the transactions contemplated by this
Agreement; to the Knowledge of the WCA Parties and the Emerald Parties, there is no basis or ground
for any such Proceedings; and there is no outstanding order, writ, injunction or decree of any
court, administrative agency, governmental body or arbitration tribunal against WCA Parent or any
of its Subsidiaries or their respective assets, which relates to or would reasonably be expected to
have a Material Adverse Effect on WCA Parent or any of its Subsidiaries.



     4.6 Insurance. WCA Parent and its Subsidiaries are presently insured, and since
January 1, 2008, have been insured, for reasonable amounts with financially sound and reputable
insurance companies, against such risks as companies engaged in a similar business would, in accordance with good
business practice, customarily be insured. Except as would not reasonably be expected to have a
Material Adverse Effect on WCA Parent, all of the insurance policies and bonds maintained by WCA
Parent and its Subsidiaries is in full force and effect, neither WCA Parent nor any of its
Subsidiaries are in material default thereunder and all material claims thereunder have been filed
in due and timely fashion.



     4.7 Conformity with Law.



          (a) WCA Parent and each of its Subsidiaries has complied in all material respects with, and
neither WCA Parent nor any of its Subsidiaries is in material default under, any ruling, directive,
order, award, judgment or decree of any Governmental or Regulatory Authority except where such
failure would not be reasonably expected to have a Material Adverse Effect on WCA Parent or any of
its Subsidiaries.




          (b) Except as set forth in the SEC Reports, there are no Proceedings pending or, to the
Knowledge of the WCA Parties, threatened against or affecting WCA Parent or any of its
Subsidiaries, at law or in equity, or before or by any Governmental or Regulatory Authority and no
notice of any Proceeding, pending or, to the Knowledge of the WCA Parties, threatened, has been
received by WCA Parent or any of its Subsidiaries that would reasonably be expected to have a
Material Adverse Effect on WCA Parent or any of its Subsidiaries.




          (c) Except as set forth in the SEC Reports, WCA Parent and its Subsidiaries have conducted and
are conducting their respective operations in material compliance with the Law, and to the
Knowledge of the WCA Parties, neither WCA Parent nor any of its Subsidiaries has received any
notification of any asserted present or past unremedied failure by it to comply





28









 







with any Law that would reasonably be expected to have a Material Adverse Effect on WCA Parent or any of its
Subsidiaries.




     4.8 Relations with Governments. No WCA Party nor to the Knowledge of the WCA Parties,
any shareholder, member, manager, director, officer, agent, employee or other person acting on
behalf of any WCA Party, has used any funds of any WCA Party for improper or unlawful
contributions, payments, gifts or entertainment, or made any improper or unlawful expenditures
relating to political activity to domestic or foreign government officials or others. Each WCA
Party has adequate financial controls to prevent such improper or unlawful contributions, payments,
gifts, entertainment or expenditures. To the Knowledge of the WCA Parties, no WCA Party, partner,
shareholder, member, manager, director, officer, agent, employee or other person acting on behalf
of any WCA Party, has accepted or received any improper or unlawful contributions, payments, gifts
or expenditures. To the Knowledge of the WCA Parties, the WCA Parties have at all times complied,
and are in compliance, in all material respects, with the Foreign Corrupt Practices Act and in all
material respects with all foreign laws and regulations relating to prevention of corrupt
practices.



     4.9 Contracts and Commitments.



          (a) Except for this Agreement, neither WCA Parent nor any of its Subsidiaries is a party to or
bound by any contract, arrangement, commitment or understanding (whether written or oral) which (i)
is a material contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed
after the Original Agreement Date that has not been filed or incorporated by reference in the SEC
Reports or (ii) which materially restricts the conduct of any line of business by WCA Parent or any
of its Subsidiaries. Each contract, arrangement, commitment or understanding of the type described
in this Section 4.9 is referred to herein as a “WCA Contract.”




          (b) Each WCA Contract is a valid and binding obligation of WCA Parent or such of its
Subsidiaries that is a party thereto and, to the Knowledge of the WCA Parties, of each other party
thereto, is in full force and effect, except where such failure to be in full force and effect
would not have or be reasonably likely to have a Material Adverse Effect on WCA Parent or such of
its applicable Subsidiaries. WCA Parent and each of its Subsidiaries have performed all
obligations required to be performed by them to date under each WCA Contract to which WCA Parent or
such of its Subsidiaries is a party thereto, except where such nonperformance, individually or in
the aggregate, would not have or be reasonably likely to have a Material Adverse Effect. No event
or condition exists which constitutes or, after notice or lapse of time or both, would constitute,
a material default on the part of WCA Parent or any of its Subsidiaries to any such WCA Contract,
except where such default, individually or in the aggregate, would not have or be reasonably likely
to have a Material Adverse Effect. To the Knowledge of the WCA Parties, no other party to any WCA
Contract is in default under the terms of any WCA Contract, except where such default, individually
or in the aggregate, would not have or be reasonably likely to have a Material Adverse Effect.





29









 








     4.10 Absence of Certain Changes or Events.



          (a) Except as disclosed in the SEC Reports filed prior to the Original Agreement Date, since
September 30, 2010, no event has occurred which has caused, or is reasonably likely to cause,
individually or in the aggregate, a Material Adverse Effect on WCA Parent or any of its
Subsidiaries.




          (b) Since September 30, 2010:




               (i) WCA Parent and each of its Subsidiaries has been operated in all material respects in the
ordinary course of business;



               (ii) neither WCA Parent nor any of its Subsidiaries has made any material changes in its
respective capital or corporate structures;



               (iii) no Person (including the WCA Parties) has accelerated, terminated, modified or cancelled
any material contract, agreement or other instrument or arrangements by which WCA Parent or any of
its Subsidiaries is bound or affected or to which WCA Parent or any of its Subsidiaries is a party;



               (iv) neither WCA Parent nor any of its Subsidiaries has permitted any material Lien or claim
against WCA Parent’s or any of its Subsidiaries’ assets outside the ordinary course of business and
no event has occurred which would reasonably be expected to result in a material impairment to any
significant asset of WCA Parent or any of its Subsidiaries;



               (v) neither WCA Parent nor any of its Subsidiaries has made any material investment in or loan
to any other Person or incurred any material indebtedness to any other Person;



               (vi) there are no Environmental Claims or investigations pending, or to the Knowledge of the
WCA Parties, threatened, against WCA Parent or any of its Subsidiaries that would reasonably be
expected to be disclosed in any report filed by WCA Parent pursuant to the Exchange Act;



               (vii) neither WCA Parent nor any of its Subsidiaries has received any written notice or, to
the Knowledge of the WCA Parties, oral notice of any claim, whether threatened or pending, for any
material Taxes or notice of any material penalty or deficiency in respect of any Taxes that has
been assessed against WCA Parent or any of its Subsidiaries and no other event has occurred that
would be reasonably be expected to cause a material increase in the Tax reserves or effective Tax
rate of WCA Parent or any of its Subsidiaries; and



               (viii) each WCA employee benefit plan (as the term is defined in Section 3(3) of ERISA, and
other arrangements or agreement providing benefits to any employee or former employee of WCA
Parent, its Subsidiaries or any ERISA Affiliate (collectively, the “WCA Plans”) has been operated
and administered in all material respects in accordance with its terms and applicable law, neither
WCA Parent nor any of its Subsidiaries has received notice of any material claims, whether
threatened or pending (other than routine claims for benefits) by, on behalf of or against any WCA
Plans or trusts related thereto and no other event has occurred that



30









 




would reasonably be expected to cause WCA Parent or any of its Subsidiaries to record a material liability or impairment to the
value of any assets held with respect to the WCA Plans.




     4.11 Required Vote. No vote of the stockholders of WCA Parent is required by law, WCA
Parent’s certificate of incorporation or bylaws or otherwise to approve this Agreement and the
transactions contemplated hereby.



     4.12 Financial Capability; Solvency. As of the Closing, WCA Parent will have
sufficient funds to deliver the Cash Purchase Price as and when due, and to consummate the
transactions contemplated by this Agreement. Upon the Closing, WCA Parent and its Subsidiaries
will not be insolvent as defined in Section 101 of Title 11 of the United States Code.



     4.13 Valid Issuance of the Securities. The Closing Shares, when issued, sold and
delivered in accordance with the terms of this Agreement, as applicable, will be duly authorized,
validly issued, fully paid and nonassessable, and will be free of restrictions on transfer and pre-emptive rights other than
restrictions on transfer under this Agreement and under applicable state and federal securities
laws.



     4.14 Offering. The offer, sale and issuance of the Closing Shares as contemplated by
this Agreement is exempt from the registration or qualification requirements of the Securities Act,
and any applicable state securities laws, and neither WCA Parent nor any authorized agent acting on
its behalf will take any action hereafter that would cause the loss of such exemption.



     4.15 Purchase for Investment. Each of the WCA Parties is acquiring the Equity
Interests for investment and not with a view to distributing all or any part thereof in any
transaction which would constitute a “distribution” within the meaning of the Securities Act. Each
of the WCA Parties acknowledges that none of the Equity Interests has been registered under the
Securities Act and none of the Emerald Parties is under any obligation to file a registration
statement or similar filing with the SEC or any state agency with respect to the Equity Interests.



     4.16 Investor Qualifications. Each of the WCA Parties (a) has such knowledge and
experience in financial and business matters that it is capable of evaluating the merits and risks
of its investment in the Equity Interests; (b) is able to bear the complete loss of its investment
in the Equity Interests; (c) has had the opportunity to ask questions of the Emerald Parties and
the management of each of the Emerald Companies concerning the terms and conditions of the Equity
Interests and the Acquired Businesses; (d) has had the opportunity to obtain additional information
about the Emerald Companies and the Acquired Businesses and all of such WCA Party’s questions have
been answered to their satisfaction; and (e) is otherwise an “accredited investor” as such term is
defined in Rule 501 promulgated under the Securities Act.



     4.17 No Broker’s or Finder’s Fees. No agent, broker, investment banker, person or
firm has acted directly or indirectly on behalf of the WCA Parties in connection with this
Agreement or the transactions contemplated herein who will be entitled to any broker’s or finder’s
fee or any other commission or similar fee or expense, directly or indirectly, in connection with
this Agreement or the transactions contemplated herein.




31











 





ARTICLE V




5. Covenants of Both Parties.




     5.1 Emerald Tax Covenants.



          (a) For purposes of the Taxable year in which the transaction contemplated by this Agreement
shall close, the Emerald Parties, at the Emerald Parties’ sole cost and expense, shall prepare or
cause to be prepared and file or cause to be filed all Tax Returns for the Emerald Companies for
all periods ending on or prior to the Closing Date (after giving effect to any valid extension of
time to file). Prior to the filing of any such Tax Return, the Emerald Parties shall provide WCA
Parent with a substantially final draft of such Tax Return at least fifteen (15) Business Days
prior to the due date for such Tax Return and shall accept all reasonable comments from WCA Parent.
The Emerald Companies shall promptly upon filing provide WCA Parent with filed copies of all such
Tax Returns. The Emerald Parties shall timely pay to the appropriate Taxing Authority all Taxes
(including estimated Taxes) shown due on such Tax Returns.




          (b) WCA Parent shall prepare or cause to be prepared and file or cause to be filed any Tax
Returns of any of the Emerald Companies for Tax periods which begin before the Closing Date and end
after the Closing Date. Prior to the filing of any such Tax Return, WCA Parent shall provide EWS
Holdings with a substantially final draft of such Tax Return at least ten (10) Business Days prior
to the due date for such Tax Return (after taking into account any extensions to such due date) and
shall accept all reasonable comments from EWS Holdings. EWS Holdings shall pay by cash, check or
wire transfer to WCA Parent, within five (5) days before the date on which Taxes are to be paid
with respect to such periods, an amount equal to the portion of such Taxes which relates to the
portion of such Tax period ending on the Closing Date. For purposes of this Section 5.1,
in the case of any Taxes that are imposed on a periodic basis and are payable for a Tax period that
includes (but does not end on) the Closing Date, the portion of such Tax which relates to the
portion of such Tax period ending on the Closing Date shall (x) in the case of any Taxes other than
Taxes based upon or related to income, gains or receipts, or employment or payroll Taxes, be deemed
to be the amount of such Tax for the entire Tax period multiplied by a fraction the numerator of
which is the number of days in the Tax period ending on the Closing Date and the denominator of
which is the number of days in the entire Tax period, and (y) in the case of any Tax based upon or
related to income, gains or receipts, or employment or payroll Taxes, be deemed equal to the amount
which would be payable if the relevant Tax period ended on the Closing Date. All determinations
necessary to give effect to the foregoing allocations shall be made in a manner consistent with
past practice of the Emerald Companies to the extent in compliance with applicable Law.




          (c) The Parties agree to:




               (i) cooperate fully, as and to the extent reasonably requested by the other Party, in
connection with the filing of Tax Returns pursuant to this Agreement and any audit, litigation or
other proceeding with respect to Taxes. Such cooperation shall include the
retention and (upon the other Party’s request) the provision of records and information that
are reasonably relevant to any such audit, litigation or other proceeding and making employees



32









 




available on a mutually convenient basis to provide additional information and explanation of any
material provided hereunder. The Parties agree (A) to retain all books and records with respect to
Tax matters pertinent to each of the Emerald Companies relating to any Taxable period beginning
before the Closing until the expiration of the statute of limitations (unless, prior to such
expiration, the WCA Parties deliver a written notice to EWS Holdings requesting that such books and
records be retained and specifying the additional retention period) of the respective Taxable
periods and to abide by all record retention agreements entered into with any Taxing Authority, and
(B) to give the other Party reasonable written notice prior to transferring, destroying or
discarding any such books and records and, if the other Party so requests, the WCA Parties or the
Emerald Parties, as the case may be, shall allow the other Party to take possession of such books
and records.




          (ii) use their best efforts to obtain any certificate or other document from any Governmental
or Regulatory Authority or any other Person as may be necessary to mitigate, reduce or eliminate
any Tax that could be imposed (including, but not limited to, with respect to the transactions
contemplated hereby).




     (d) Without the prior written consent of WCA Parent, after the execution of this Agreement and
prior to the Closing none of the Emerald Parties shall amend any Tax Returns, or make any election,
adopt any accounting method or fiscal year, or take any position in any Tax Returns relating to any
of the Emerald Parties that is inconsistent with any such election, accounting method, fiscal year
or position previously made, adopted or taken with respect to any Emerald Party.



     (e) All sales and transfer taxes, deed taxes, conveyance fees, recording charges and similar
taxes imposed as a result of the transactions contemplated by this Agreement, together with any
interest, penalties or additions to such transfer taxes (“Transfer Taxes”), shall be borne one-half
by WCA Parent and one-half by EWS Holdings. WCA Parent and EWS Holdings shall cooperate in filing
all necessary Tax Returns under applicable Laws with respect to Transfer Taxes.



     (f) WCA Parent shall inform EWS Holdings of the commencement of any audit, examination or
proceeding (“Tax Contest”) relating in whole or in part to a Tax Claim for which a WCA Indemnified
Person may be entitled to indemnity from EWS Holdings hereunder. With respect to any Tax Contest
for which EWS Holdings is liable under Article 6 for all Loss relating thereto, EWS
Holdings shall be entitled to control, in good faith, all proceedings taken in connection with such
Tax Contest with counsel satisfactory to WCA Parent; provided, however, that (x)
EWS Holdings shall promptly notify WCA Parent in writing of their intention to control such Tax
Contest, (y) in the case of a Tax Contest relating to Taxes of the Company for a Tax period
beginning before and ending after the Closing Date, EWS Holdings and WCA Parent shall jointly
control all proceedings taken in connection with any such Tax Contest and (z) if any Tax Contest
could reasonably be expected to have an adverse effect on any WCA Indemnified Person in any Tax
period beginning after the Closing Date, the Tax Contest shall not be settled or resolved without
Buyer’s consent, which consent shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, if notice is given to EWS Holdings of the commencement of any
Tax Contest and EWS Holdings do not, within ten (10) Business Days after WCA Parent’s notice
is given, give notice to WCA Parent of its election to assume the defense thereof (and in



33









 




connection therewith, acknowledge in writing the indemnification obligations hereunder of EWS
Holdings), EWS Holdings shall be bound by any determination made in such Tax Contest or any
compromise or settlement thereof effected by WCA Parent. The failure of WCA Parent to give
reasonably prompt notice of any Tax Contest shall not release, waive or otherwise affect EWS
Holdings’ obligations with respect thereto. WCA Parent and the Emerald Companies shall use their
reasonable efforts to provide EWS Holdings with such assistance as may be reasonably requested by
EWS Holdings in connection with a Tax Contest controlled solely or jointly by EWS Holdings.




     5.2 Regulatory and Other Approvals. The WCA Parties will, as promptly as practicable,
(i) take all commercially reasonable steps necessary or desirable to obtain all consents, approvals
or actions of, make all filings with and give all notices to Governmental or Regulatory Authorities
or any other Person required of the WCA Parties to consummate the transactions contemplated by this
Agreement or the Transaction Documents, (ii) provide such other information and communications to
such Governmental or Regulatory Authorities or other Persons as the Emerald Parties or such
Governmental or Regulatory Authorities or other Persons may reasonably request in connection
therewith and (iii) cooperate with the Emerald Parties in connection with the performance of its
obligations under this Section 5.2. To the extent that any involvement from any Emerald
Party is needed, the Emerald Parties agree to reasonably cooperate with and assist the WCA Parties
in the performance of its obligations under this Section 5.2. The WCA Parties will provide
prompt notification to EWS Holdings when any such consent, approval, action, filing or notice above
is obtained, taken, made or given, as applicable, and will advise Emerald of any communications
(and, unless precluded by Law, provide copies of any such communications that are in writing) with
any Governmental or Regulatory Authority or other Person regarding any of the transactions
contemplated by this Agreement or any of the Transaction Documents.



     5.3 Interim Conduct of the Business. Until Closing, except for effecting the Gulf
Coast Business Transfer (as defined below) by EWS to EWS Gulf Coast, the Emerald Parties will
conduct their businesses only in the ordinary and usual course consistent with past practice. The
Emerald Parties agrees to promptly notify WCA Parent of any event or occurrence not in the ordinary
course of business of the Emerald Companies (except for effecting the Gulf Coast Business Transfer
by EWS to EWS Gulf Coast) and any event that could reasonably be expected to have a material effect
on the business of the Emerald Companies. Without limiting the generality of the foregoing and
except for effecting the Gulf Coast Business Transfer by EWS to EWS Gulf Coast, each Emerald Party
will use commercially reasonable efforts to:



          (a) pay its debts, Taxes and other obligations when due subject to good faith disputes over
such debts or Taxes and obtaining WCA Parent’s consent (which such consent shall not be
unreasonably withheld, conditioned or delayed) to the filing of material Tax Returns, if
applicable;




          (b) preserve intact its relationships with suppliers, customers, employees, creditors, and
others having business dealings with the Emerald Companies;




          (c) maintain in full force and effect its existing policies of insurance which affect the
Emerald Companies;





34









 








          (d) preserve, protect and maintain all assets of each Emerald Company, ordinary wear and tear
excepted;




          (e) continue performance in the ordinary course of its obligations under the Contracts and
other obligations; and




          (f) take no action which would interfere with or prevent performance and consummation of this
Agreement, including without limitation solicitation from any other Person, any inquiries or
proposals related to the disposition of all or any portion of the Emerald Companies, or pursuing or
engaging in discussions with respect thereto.




     5.4 WCA Parent’s Approval of Certain Transactions. Until Closing, with respect to the
operation of the Emerald Companies (except for effecting the Gulf Coast Business Transfer by EWS to
EWS Gulf Coast), the Emerald Parties shall not, without WCA Parent’s prior written consent (which
such consent shall not be unreasonably withheld, conditioned or delayed), except in the ordinary
course of business consistent with past practices, directly or indirectly:



          (a) except for draws from time to time on the Comerica Credit Facility, incur, commit to incur
or permit to be incurred any debt or other obligation or liability, which increases the liabilities
of the Emerald Companies or results in the creation of a Lien other than a Permitted Lien on any
asset of an Emerald Company;




          (b) sell, assign, transfer, license or otherwise dispose of any interest in any asset of an
Emerald Company;




          (c) enter into any lease of real or personal property or any renewals thereof involving a
rental obligation;




          (d) permit any Lien other than a Permitted Lien or claims against any assets of an Emerald
Company;




          (e) enter into any transaction, contract or commitment or waive any right, cancel any debt or
claim, or voluntarily suffer any extraordinary loss;




          (f) make any capital expenditure or commitments for additions to property, plant or equipment
constituting capital assets on behalf of the Emerald Companies in an aggregate amount exceeding
$50,000;




          (g) enter into any lease or installment purchase agreement providing for annual payments in
excess of $25,000; or




          (h) enter into any agreement to do or engage in any of the foregoing.




     5.5 NASDAQ Listing. WCA Parent agrees to list, prior to the Closing, on NASDAQ the
Closing Shares to be issued hereunder.



35









 





     5.6 Pre-Closing Access. The Emerald Parties agree that upon reasonable notice and
subject to applicable Laws relating to the exchange of information, between the Original Agreement
Date and the Closing, the Emerald Parties will permit representatives of the WCA Parties to have
access at all reasonable times, and in a manner so as not to interfere unreasonably with the normal
business operations of the Emerald Companies, to the premises, properties, personnel, books,
records (including Tax records), contracts, and documents of or pertaining to the Emerald Companies
and to the Emerald Company Employees.



     5.7 Employee Matters. Except as may be required by Law and with respect to effecting
the Gulf Coast Business Transfer by EWS to EWS Gulf Coast, the Emerald Parties will refrain from
directly or indirectly:



          (a) making any material representation or promise, oral or written, to any Emerald Company
Employee concerning any Benefit Plan, except for statements as to the rights or accrued benefits of
any Emerald Company Employee under the terms of any Benefit Plan;




          (b) making any increase in the salary, wages or other compensation of any Emerald Company
Employee;




          (c) adopting, entering into or becoming bound by any Benefit Plan, employment-related Contract
or collective bargaining agreement with respect to the Acquired Businesses or any of the Emerald
Company Employees, or amending, modifying or terminating (partially or completely) any such Benefit
Plan, employment-related Contract or collective bargaining agreement, except to the extent required
by applicable Law; or




          (d) establishing or modifying any (i) targets, goals, pools or similar provisions in respect
of any fiscal year under any Benefit Plan or any employment-related Contract or other compensation
arrangement with or for Emerald Company Employees or (ii) salary ranges, increase guidelines or
similar provisions in respect of any Benefit Plan or any employment-related Contract or other
compensation arrangement with or for Emerald Company Employees.




          (e) EWS Holdings will administer each Benefit Plan, or cause the same to be so administered,
in all material respects in accordance with the applicable provisions of the Code, ERISA and all
other applicable Laws. EWS Holdings will promptly notify WCA Parent in writing of each receipt by
the Emerald Parties (and furnish WCA Parent with copies) of any notice of investigation or
administrative proceeding by the IRS, Department of Labor, the Pension Benefit Guaranty Corporation
or other Person involving any Benefit Plan.




          (f) Prior to Closing, the Parties shall cooperate and take such actions reasonably necessary
and appropriate to provide for the transition of the Emerald Company Employees and the provision of
benefits to such Emerald Company Employees up to and following the Closing Date.




     5.8 Notice of Developments. Each Party will give prompt written notice to the other
Party of any fact, event or circumstances known to it that (i) is reasonably likely, individually
or taken together with all other facts, events and circumstances known to it, to result in any
Material Adverse Effect or (ii) would cause or constitute a material breach of any of its
representations, warranties or covenants in this Agreement. Except as otherwise provided in this
Agreement, no



36









 




disclosure by any Party pursuant to this Section, however, shall be deemed to amend
or supplement any schedule hereto or to prevent or cure any misrepresentation or breach of
warranty.




     5.9 Exclusivity . Until the earlier of the Closing or the termination of this
Agreement in accordance with Article 8, no Emerald Party nor any of its Affiliates will
solicit, initiate, encourage, negotiate or enter into any agreement regarding the submission of any
proposal or offer from any Person other than the WCA Parties relating to the acquisition of all or
any portion of the equity interests or the assets of any Emerald Company (other than the Gulf Coast
Business) (including any acquisition structured as a merger, consolidation, or share exchange).



     5.10 Confidentiality. Neither the Emerald Parties nor any direct or indirect
subsidiary of EWS Holdings shall disclose to any Person or make use of any trade secrets or
confidential information of the Emerald Companies (collectively, “Emerald Confidential
Information”), other than (i) to disclose the Emerald Confidential Information to the WCA Parties
and its counsel, (ii) in the ordinary course of business prior to the Effective Time or (iii) with
respect to the ownership or operation of the Gulf Coast Business by EWS Holdings or any of its
Affiliates (or any successor in interest thereto) prior to and after the Effective Time. The term
“Emerald Confidential Information” does not include any trade secrets or confidential information
of the Emerald Companies that (i) is or becomes generally available to the public other than as a
result of a disclosure by any Emerald Party or any direct or indirect subsidiary of EWS Holdings
prior to the Effective Time or by EWS Holdings or any direct or indirect subsidiary of EWS Holdings
(but excluding any Emerald Company) (collectively the “Emerald Restricted Parties”) after the
Effective time, in either case in violation of this Section 5.10, (ii) lawfully becomes
available to any Emerald Restricted Party after the Effective Time hereof on a nonconfidential
basis from a source not bound by a confidentiality agreement with or other contractual, legal or
fiduciary obligation of confidentiality to any Emerald Restricted Party or (iii) is independently
developed by or on behalf of Emerald Restricted Party without use of or reference to any Emerald
Confidential Information. In the event that any Emerald Party or any direct or indirect subsidiary
of EWS Holdings prior to the Effective Time or any Emerald Restricted Party after the Effective
Time is requested or required (by oral questions, interrogatories, requests for information or
documents in legal proceedings, subpoena, civil investigative demand or other similar or
equivalent process) to disclose any of the Emerald Confidential Information, such party shall,
to the extent lawfully permitted, provide WCA Parent with written notice of any such request or
requirement so that WCA Parent may seek (at WCA Parent’s sole cost and expense) a protective order
or other appropriate remedy, consult with such party with respect to taking steps to resist or
narrow the scope of such request or legal process and/or waive compliance, in whole or in part,
with the provisions of this Section 5.10. If, in the absence of a protective order or
other remedy or the receipt of a waiver by WCA Parent, such Emerald Party or Emerald Restricted
Party, as the case may be, is nonetheless, upon the advice of its legal counsel, legally compelled
to disclose any Emerald Confidential Information, such party may, without liability under this
Section 5.10, disclose only that portion of such Emerald Confidential Information that such
counsel advises that such party is legally required to be disclosed, provided that such party
exercises its good faith efforts to preserve the confidentiality of the Emerald Confidential
Information, including, without limitation, by cooperating with WCA Parent (at WCA Parent’s sole
cost and expense) to obtain an appropriate protective order or other reliable assurance that
confidential treatment will be accorded such Emerald Confidential Information. Without



37









 




limiting
the right of the WCA Parties to pursue all other legal and equitable rights available to it for
violation of this Agreement by the any Emerald Party or any direct or indirect subsidiary of EWS
Holdings or their respective agents, it is agreed that other remedies cannot fully compensate the
WCA Parties for such a violation and that the WCA Parties shall be entitled to injunctive relief to
prevent violation or continuing violation thereof. It is the intent and understanding of each
party hereto that if, in any action before any court or agency legally empowered to enforce this
Agreement, any term, restriction, covenant or promise shall be deemed modified to the extent
necessary to make it enforceable by such court or agency. Notwithstanding anything to the contrary
in this Agreement, each WCA Party acknowledges and recognizes that the Emerald Restricted Parties
or their Affiliates either are or may from time to time be engaged in one or more lines of business
that directly or indirectly compete with one or more of the WCA Parties or their Affiliates (a
“Competing Business”). Each WCA Party agrees and recognizes that nothing in this Section
5.10 shall (i) prevent, deter, limit or hinder, in any way, any Emerald Restricted Party or any
of their Affiliates or their respective successors in interest from engaging in any Competing
Business, including, but not limited to, the Gulf Coast Business and (ii) restrict any Emerald
Restricted Party’s use of any of its overall knowledge and understanding of the waste services
industry.




     5.11 Publicity. No Emerald Party shall issue a press release or other public
disclosure without advance approval thereof by WCA Parent except to the extent required by Law.
EWS Holdings shall have the right to review and comment on any press release or other public
disclosure issued by WCA Parent concerning this Agreement or the transactions contemplated hereby.



     5.12 Legal Requirements. Each of Emerald Parties and the WCA Parties will take all
reasonable actions necessary to comply promptly with all legal requirements which may be imposed on
them with respect to the consummation of the transactions contemplated by this Agreement or the
Transaction Documents and will promptly cooperate with and furnish information to any Party
necessary in connection with any such requirements imposed upon such other Party in connection with
the consummation of the transactions contemplated by this Agreement or the Transaction Documents.



     5.13 Further Assurances. Subject to the terms and conditions of this Agreement, the
Emerald Parties and the WCA Parties each agree to use reasonable best efforts in good faith and to
cause to be taken, such further actions and execute such other documents as may be reasonably
required to promptly fulfill the conditions to the Closing, permit the consummation of the
transactions contemplated under this Agreement and to further secure to each party the rights
intended to be conferred hereby and the other agreements ancillary to the transactions contemplated
hereby.



     5.14 Financial Statements.



          (a) As promptly as reasonably practicable and in any event on or before the twentieth day of
each month from the Original Agreement Date to the Closing Date, EWS Holdings shall deliver to WCA
Parent the internal monthly unaudited financial statements (balance sheet, statement of operations
and statement of cash flows) of the Emerald Companies for the prior month.







38









 








          (b) EWS Holdings shall provide unaudited financial statements for each of the Emerald
Companies for the three months ending December 31, 2010 on or prior to March 31, 2011.




     5.15 Real Property Documents. As promptly as practicable following the execution
hereof, WCA Waste will obtain a commitment for title insurance from Chicago Title Insurance Company
(the “Title Insurer”) with respect to real property located in Florida covering the Emerald
Companies’ Real Property, together with copies of all documents evidencing title exceptions
thereon, and an updated survey of such real property. Copies of such commitments for title
insurance and updated surveys shall be provided to EWS Holdings. All such title insurance policies
and any fees or other expenses related thereto shall be paid for by WCA Parent.



     5.16 Use of Emerald Company Name. Promptly following the Closing, WCA Parent shall
take all necessary action to change the company name of EWS. Following the Closing, neither WCA
Parent nor any of its Subsidiaries will use the terms “Emerald” or “EWS” in connection with the
businesses of the Emerald Companies. Notwithstanding the foregoing, WCA Parent and its
Subsidiaries shall be entitled to keep the names “Emerald,” “Emerald Waste Services,” “EWS” or
other similar names on assets of the Emerald Companies, including vehicles and containers, for a
period not to exceed 18 months following Closing. In addition, WCA Parent and its Subsidiaries may
use the names “Emerald,” “Emerald Waste Services,” “EWS” or other similar names to the extent
reasonably necessary to obtain all rights, benefits and privileges under any agreement to which an
Emerald Company is a party.



     5.17 Closure Financial Assurances; Other Bond Obligations. The Parties acknowledge
that, notwithstanding any limitation of this Agreement to the contrary, at Closing the WCA Parties
shall succeed to all the closure and post-closure obligations and liabilities as well as any new,
continuing or recurring compliance obligations associated with the Gainesville Transfer Station
(all such foregoing obligations and liabilities, the “Transfer Station Liabilities”). Any and all
performance bonds, collection bonds and other types of bonds or any other kind of financial
assurance provided related to the Gainesville Transfer Station in effect prior to the Closing Date,
each of which is set forth on Schedule 5.17 hereto, shall be assumed by a WCA Party or
terminated on or prior to the Closing Date and any associated collateral shall be returned as
directed by EWS Holdings. The WCA Parties shall obtain all performance bonds, collection bonds and
other types of bonds related to the Gainesville Transfer Station and provided financial assurance
in connection therewith required by and in accordance with applicable Laws and such bonds shall be
effective as of the Closing Date.



     5.18 Updated Disclosure: Breaches.



          (a) From and after the Original Agreement Date until the Closing each Party hereto shall
promptly notify the other Parties hereto in writing of (i) the occurrence, or non-occurrence, of
any event that would be likely to cause any condition to the obligations of any Party to effect the
transactions contemplated by this Agreement not to be satisfied or (ii) the failure of any WCA
Party or any Emerald Party, as the case may be, to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it pursuant to this Agreement that would be likely
to result in any condition to the obligations of any Party to effect




39









 







the transactions contemplated
by this Agreement not to be satisfied; provided, however, that the delivery of any notice pursuant
to this Section 5.18 shall not otherwise limit or affect the remedies available hereunder
to the Parties receiving such notice.




          (b) Until the Closing, the Emerald Parties shall have the continuing obligation to promptly
amend or supplement the information contained in the Emerald Disclosure Schedule with respect to
any matter heretofore existing or hereafter discovered that was in existence on the Original
Agreement Date or hereafter arising which, if existing, occurring or known as of the Original
Agreement Date, would have been required to be set forth or described in the Emerald Disclosure
Schedule or which is otherwise necessary to correct any information in the Emerald Disclosure
Schedule which has been rendered inaccurate thereby.




          (c) Neither the amendment or supplementation of the Emerald Disclosure Schedule pursuant to
the obligation in Section 5.18(b) nor any disclosure after the Original Agreement Date of
the untruth of any representation and warranty made in this Agreement shall operate as a cure of
any breach of (i) the failure to disclose the information or (ii) any untrue representation or
warranty made herein. Notwithstanding the foregoing, if such supplementation by an Emerald Party
(x) is consented to in writing by WCA Parent or (y) was provided to WCA Parent not less than five
(5) Business Days prior to the Closing Date and discloses any fact or set of facts that, either
singly or in the aggregate with other facts disclosed pursuant to such obligation, is not, or is
not reasonably likely to result in, a Material Adverse Effect on the
Emerald Companies, such supplementation shall be deemed to cure any such untrue representation
or warranty, and such representation or warranty, as so supplemented, shall be deemed to have been
amended accordingly.




     5.19 Gulf Coast Business. EWS shall take all necessary actions to transfer the Gulf
Coast Assets and Gulf Coast Liabilities to EWS Gulf Coast (the “Gulf Coast Business Transfer”).
The assets and liabilities of EWS that remain with EWS following the Gulf Coast Business Transfer
will be as set forth on Schedule 5.19.



     5.20 Post-Closing Transfer of Gulf Coast Contracts. To the extent that any contract,
license, permit or other asset pertaining to the Gulf Coast Business has not been previously
assigned, transferred or contributed (“Transferred”) by EWS to EWS Gulf Coast on or prior to the
Closing because such contract, license, permit or other asset is not capable of being Transferred
without the consent, approval, novation or waiver of a third Person or a Governmental or Regulatory
Authority and such consent, approval, novation or waiver has not been able to be obtained from such
third Person or a Governmental or Regulatory Authority by the Emerald Parties on or prior to the
Closing, then from and after the Closing the WCA Parties (including each Emerald Company) will
cooperate with EWS Holdings and its remaining Subsidiaries (including EWS Gulf Coast) in obtaining
each such consent, approval, novation or waiver and, in the interim, shall provide to EWS Gulf
Coast the benefits (and the burdens) of any such contract, license, permit or other asset until
each such contract, license, permit or other asset has been Transferred to EWS Gulf Coast.



     5.21 Escrow Agreements. The Parties shall take all necessary actions to agree upon
the terms and conditions of the Escrow Agreement prior to the Closing.



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ARTICLE VI




6. Survival of Covenants, Representations and Warranties; Indemnification.




     6.1 Survival of Covenants, Representations, and Warranties.



          (a) The representations and warranties of the Parties contained in this Agreement shall
survive the Closing hereunder and continue in full force and effect for eighteen (18) months
following the Closing Date (“R&W Expiration Date”). EWS Holdings shall be obligated to indemnify
the WCA Indemnified Parties for (i) any Claims (other than Environmental Claims or Tax Claims) for
a period of two (2) years following the Closing Date and (ii) any Environmental Claims or Tax
Claims for three (3) years following the Closing Date (each, a “Claims Expiration Date” and,
together with the R&W Expiration Date, each an “Expiration Date”).




          (b) No Party shall be obligated to indemnify any other Party pursuant to this Article
6 for any Claim that is first made after the applicable Expiration Date. Claims pursuant to
this Article 6 first made prior to an applicable Expiration Date shall be subject to
indemnity pursuant to this Article 6 throughout the entirety of the Proceeding or
Proceedings arising out of such Claim, notwithstanding the fact that such Proceeding or Proceedings
may extend beyond the applicable Expiration Date.




     6.2 Indemnification by Emerald. From and after the Closing, subject to the
limitations set forth in this Article 6, for Claims for indemnification made under this
Section 6.2, EWS Holdings will, from and after Closing and during the period prior to the
Expiration Date, unconditionally, absolutely and irrevocably agree to and shall defend, indemnify
and hold harmless the WCA Parties and each of their respective subsidiaries, shareholders,
Affiliates, officers, directors, employees, counsel, accountants, agents, successors, assigns,
heirs and legal and personal representatives (the WCA Parties and all such Persons are collectively
referred to as “WCA Indemnified Persons”) from and against, and shall reimburse the WCA Indemnified
Persons for, each and every Loss paid, imposed on or incurred by the WCA Indemnified Persons
relating to, resulting from or arising out of: (a) any inaccuracy in any representation or warranty
of any Emerald Party under this Agreement, (including the schedules hereto), or any breach or
nonfulfillment of any covenant, agreement or other obligation of any Emerald Party under this
Agreement or any Transaction Document delivered pursuant hereto and (b) all Claims arising with
respect to facts, conditions, events, operations and circumstances existing prior to the Closing
Date other than facts, conditions, events, operations and circumstances disclosed in the Emerald
Disclosure Schedule or any Transfer Station Liabilities; provided, however, in the event of any
Claim that arises with respect to facts, conditions, events, operations and circumstances arising
both before and after the Closing Date, EWS Holdings’ indemnification obligations shall be limited
to such matters arising with respect to facts, conditions, events, operations and circumstance on
or prior to the Closing Date.



     6.3 Indemnification by the WCA Parties. For claims for indemnification made under
this Section 6.3, the WCA Parties will, from and after Closing and during the period prior
to the R&W Expiration Date, jointly and severally, unconditionally, absolutely and irrevocably
agree to and shall defend, indemnify and hold harmless EWS Holdings and its subsidiaries (other



41









 




than the Emerald Companies), shareholders, Affiliates, officers, directors, employees, counsel,
accountants, agents, successors, assigns, heirs and legal and personal representatives (EWS
Holdings and all such Persons are collectively referred to as “Emerald Indemnified Persons”) from
and against, and shall reimburse the Emerald Indemnified Persons for, each and every Loss paid,
imposed on or incurred by Emerald Indemnified Persons, directly or indirectly, relating to,
resulting from or arising out of any inaccuracy in any representation or warranty of any WCA Party
under this Agreement, (including the schedules hereto), or any breach or nonfulfillment of any
covenant, agreement or other obligation of any WCA Party under this Agreement or any Transaction
Document delivered pursuant hereto.




     6.4 Notice and Defense of Claims.



          (a) Third Party Claims. In the event that, subsequent to the Closing, any Third Party
Claim shall be brought or asserted under this Article 6 against a Party (or any successor
thereto) (each such Party, an “Indemnified Person”) in respect of which indemnity may be sought
under this Article 6 from another Party (or any successor thereto) (each such Party, an
“Indemnifying Person(s)”), the Indemnified Person shall give prompt written notice of such Third
Party Claim, together with a statement of any available information regarding such claim, to the
Indemnifying Person within ten (10) days after learning of such claim (or within such shorter time
as may be necessary to give the Indemnifying Party a reasonable opportunity to respond to and
defend such claim). The Indemnifying Person shall have the right upon written notice to the
Indemnified Person, within thirty (30) days after receipt from the Indemnified Person of notice of
such claim, to conduct at its expense the defense against such claim in its own name, or if
necessary in the name of the Indemnified Person. In the event that the Indemnifying Party elects
to conduct the defense of the subject claim, the Indemnifying Party shall employ counsel reasonably
satisfactory to the Indemnified Person and pay all expenses of such counsel and the Indemnified
Person will cooperate with and make available to the Indemnifying Person such assistance and
materials as may be reasonably requested by such Indemnifying Person. In no event shall any
Indemnified Person be required to make any expenditure or bring any cause of action to enforce the
Indemnifying Person’s obligations and liability under and pursuant to the indemnifications set
forth in this Article 6. In addition, the filing of a Proceeding shall not be required as
a condition or prerequisite to the Indemnifying Person’s obligations under this Article 6,
if the Indemnified Person is required to expend sums for investigation or remedial purposes as a
result of a threatened Third Party Claim. The Indemnified Person shall have the right to employ
separate counsel in any of the foregoing Third Party Claims and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of the Indemnified
Person unless the Indemnified Person shall in good faith, upon advice of counsel, determine that
there exist actual or potential conflicts of interest which make representation by the same counsel
inappropriate. The Indemnified Person’s right to participate in the defense or response to any
Third Party Claim should not be deemed to limit or otherwise modify its obligations under this
Article 6, provided that the Indemnified Person shall have the right to compromise and
settle such Third Party Claim only with the prior written consent of the Indemnifying Person. In
the event that the Indemnifying Person, within thirty (30) days after notice of any such Third
Party Claim, fails to assume the defense thereof, the Indemnified Person shall have the right to
undertake the defense, compromise or settlement of such Third Party Claim for the account of the
Indemnifying Person, subject to the right of the Indemnifying Person to assume the defense of such
Third Party Claim with counsel reasonably




42









 







satisfactory to the Indemnified Person at any time prior
to the settlement, compromise or final determination thereof. Anything in this Article 6
to the contrary notwithstanding, the Indemnifying Person shall not, without the Indemnified
Person’s prior written consent, settle or compromise any Third Party Claim or consent to the entry
of any judgment with respect to any Third Party Claim for anything other than money damages paid by
or on behalf of the Indemnifying Person. If an offer is made to settle a Third Party Claim, which
offer the Indemnifying Person is permitted to settle under this Section 6.4(a) only upon
the prior written consent of the Indemnified Person, and the Indemnifying Person desires to accept
and agree to such offer, the Indemnifying Person will give prompt written notice to the Indemnified
Person to that effect. If the Indemnified Person does not consent to such firm offer within twenty
(20) days
after its receipt of such notice, the Indemnified Person may continue to contest or defend
such Third Party Claim and, in such event, the maximum liability of the Indemnifying Person as to
such Third Party Claim (subject to the limitations set forth in this Article 6, including,
but not limited to, Section 6.6) will not exceed the amount of such settlement offer, plus
costs and expenses paid or incurred by the Indemnified Person through the date such settlement
offer is given to the Indemnified Person to the extent such amount is otherwise indemnifiable
hereunder. The Indemnifying Person may, without the Indemnified Person’s prior written consent,
settle or compromise any such Third Party Claim or consent to entry of any judgment with respect to
any such Third Party Claim that requires solely the payment of money damages by or on behalf of the
Indemnifying Person and that includes as an unconditional term thereof the release by the claimant
or the plaintiff of the Indemnified Person from all liability in respect of such Proceeding. The
Indemnifying Person shall be liable (subject to the limitations set forth in this Article
6, including, but not limited to, Section 6.6) for any settlement of any Third Party
Claim effected pursuant to and in accordance with this Section 6.4(a) and for any final
judgment (subject to any right of appeal), and the Indemnifying Person shall indemnify and hold
harmless (subject to the limitations set forth in this Article 6, including, but not
limited to, Section 6.6) an Indemnified Person from and against any Loss by reason of such
settlement or judgment. No Indemnified Person shall take any action the purpose of which is to
prejudice the defense of any Third Party Claim subject to indemnification hereunder or to induce a
third party to assert a Third Party Claim subject to indemnification hereunder.




          (b) Direct Claims. It is the intent of the Parties that all Direct Claims by an
Indemnified Person against a Party not arising out of a Third Party Claim shall be subject to and
benefit from the terms of this Article 6. Any Direct Claim may only be asserted by giving
the Indemnifying Party reasonably prompt written notice thereof, and the Indemnifying Party will
have a period of thirty (30) days within which to satisfy such Direct Claim. If the Indemnifying
Party does not so respond within such thirty (30) day period, the Indemnifying Party will be deemed
to have rejected such Direct Claim (a “Dispute”), in which event the Indemnified Person and the
Indemnifying Party will attempt in good faith to resolve through negotiation such Dispute.




     6.5 Payment and Interest. The Indemnifying Person shall make any payment required to
be made under this Section 6.5 in immediately available funds and on demand; provided that
EWS Holdings may make payments required to be made under this Article 6 through the
delivery of all or a portion of the Indemnification Shares pursuant to the terms of the Escrow
Agreement and until such time as the Indemnification Shares are exhausted. Indemnification Shares
shall be deemed to have a per share value equal to the closing sales price



43









 




of WCA Parent’s common
stock as reported on NASDAQ for the ten (10) Trading Days ending one (1) Trading Day prior to the
date on which such indemnification claim is fully and finally resolved pursuant to the procedures
set forth in this Article 6 (the “Share Value”). Any amounts or payments required to be
paid by an Indemnifying Person under this Section 6.5 which are not paid within sixty (60)
days of receipt by the Indemnifying Person of the Indemnified Person’s demand therefor shall
thereafter be deemed delinquent, and the Indemnifying Person shall pay to the Indemnified Person
immediately upon demand, interest at the rate of eight percent (8%) per annum, from the date such
payment becomes delinquent to the date of payment of such delinquent sums. The WCA
Parties and the Emerald Parties agree that the Share Value has been agreed upon solely for the
purpose of satisfying indemnification claims hereunder and that such Share Value may not be the
fair market value of each share of WCA Parent Common Stock on such relevant date.




     6.6 Limits of Liability.



          (a) Except as set forth in Section 6.6(b) below and in the case of fraud or
intentional misconduct of the WCA Parties, the liability of the WCA Parties to the Emerald Parties
under this Agreement shall not exceed $4,500,000 (the “WCA Cap”). Except in the case of fraud or
intentional misconduct of the Emerald Parties, the liability of EWS Holdings to the WCA Parties
under this Agreement shall not exceed $4,500,000 (the “Emerald Cap”); provided,
however, if there has not been any Claim made by any WCA Indemnified Person pursuant to
Article 6 prior to or on the date the First Indemnification Shares are released from the Escrow
Fund pursuant to the terms of the Escrow Agreement, then after such date the “Emerald Cap” shall
instead be an amount not in excess of $3,600,000. The liability of EWS Holdings shall not exceed
the interest of EWS Holdings in the Indemnification Shares and neither EWS Holdings nor any Emerald
Equity Holder shall have any further liability pursuant to this Article 6 once all
Indemnification Shares have been released or otherwise distributed from the Escrow. No such party
shall be obligated to provide indemnification under this Agreement for any damage until the
aggregate indemnifiable Losses exceed $150,000 (the “Threshold”).




          (b) Notwithstanding the limits set forth in (a) above, no Party’s indemnity obligations
hereunder shall be subject to the Threshold, nor shall be limited to the respective Party’s Cap
with respect to any obligations of the respective Parties (including all subsidiaries thereof) to
indemnify for Tax Claims; provided that any such indemnity obligations shall be subject to the
provisions of Section 6.2.




          (c) Notwithstanding anything to the contrary contained in this Agreement, the following
limitations shall apply to claims under this Article 6 or otherwise made with respect to
this Agreement or any Transaction Agreement:




               (i) The amount of any Losses to which the WCA Parties are entitled with respect to any claim
pursuant to this Article 6 shall be reduced by (A) the amount of any payment recovered or
recoverable by the WCA Parties with respect such Losses from any insurance provider or any other
third party and (B) the amount of any cash Tax benefit, as determined by WCA Parent in good faith
after consultation with its tax advisors, realizable by WCA Parent or its Subsidiaries that is
attributable to the Losses to which such claim relates. If an Indemnified Person receives any
amounts under applicable insurance policies, or from any



44









 




other third party alleged to be
responsible for any Losses, subsequent to an indemnification payment by an Indemnifying Party, then
such Indemnified Person shall promptly reimburse such Indemnifying Party for any payment made or
expense incurred by such Indemnifying Party in connection with providing such indemnification
payment up to the amount received by the Indemnified Person, net of any expenses reasonably
incurred by such Indemnified Person in collecting such amount; provided that if a portion of any
Losses incurred by a WCA Indemnified Person was not indemnified due to the operation of the Emerald
Cap, then such WCA
Indemnified Person will only be required to reimburse EWS Holdings if and to the extent the
amount received by such WCA Indemnified Person exceeds the amount of the non-indemnified Losses.
Each Indemnified Person shall use commercially reasonable efforts to collect any amounts available
from such other third party alleged to have responsibility therefor (but shall not be required to
seek payment from any insurance coverage) prior to making any claim for indemnification under this
Article 6.




               (ii) In no event shall any Indemnifying Person have any obligation or liability for (A) any
Losses that are consequential, in the nature of lost profits (including, without limitation, loss
of profit or revenue, any multiple of reduced cash flow or any adjustment based on price to
earnings or similar ratios), interference with operations, or loss of customers, tenants, lenders,
investors or buyers, diminution in the value of property, special or punitive or otherwise not
actual out-of-pocket damages, or (B) any Losses arising from or relating to, directly or
indirectly, any act, omission or transaction carried out by or at the express written request of
the WCA Parties before, on or after the Closing Date, including, without limitation, any change in
the accounting policies, practices or procedures of the Emerald Companies after the Closing.



               (iii) Any liability for indemnification hereunder shall be determined without duplication of
recovery by reason of the state of facts giving rise to such liability constituting a breach of
more than one representation, warranty, covenant or agreement. Without limiting the foregoing,
amounts paid in accordance with Section 1.4 with respect to Deferred Revenue shall not be
subject to duplication (e.g., in the event or to the extent that an inaccuracy in the Emerald
Companies’ financial statement representations gives rise to such adjustment).



               (iv) Each Indemnified Party shall take, and shall cause their respective Affiliates to take,
all reasonable steps to mitigate and otherwise minimize its Losses to the extent reasonably
possible upon and after becoming aware of any event which would reasonably be expected to give rise
to any Losses.



          (d) From and after the Closing, except with respect to claims for equitable relief, including,
without limitation, specific performance, or claims based on fraud or intentional
misrepresentation, made with respect to breaches of any covenant or agreement contained in this
Agreement or the Transaction Documents, the rights provided to the WCA Indemnified Persons and the
Emerald Indemnified Persons under this Article 6 shall be the sole and exclusive remedies
of the Parties and their respective Affiliates with respect to claims under this Agreement or
otherwise relating to the transactions contemplated hereby. Without limiting the generality of the
foregoing, in no event shall any Party, its successors or permitted assigns be entitled to claim or
seek rescission of the transactions contemplated by this Agreement.





45









 








ARTICLE VII




7. Conditions to Closing.




     7.1 Conditions to the WCA Parties’ Obligations. The obligations of the WCA Parties to
consummate the Closing are subject to the fulfillment or waiver by WCA Parent in writing on or
before the Closing of each of the following conditions by the Emerald Parties:



          (a) Representations and Warranties. The representations and warranties of the Emerald
Parties contained in Article 3 shall be true and correct on and as of the Closing with the
same effect as though such representations and warranties had been made on and as of the date of
the Closing, except where the failure of any such representation or warranty to be true and correct
would not reasonably be expected to have a Material Adverse Effect.




          (b) Performance. The Emerald Parties shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement or the Transaction Documents
that are required to be performed or complied with by it on or before the Closing, except where the
failure to so perform would not reasonably be expected to have a Material Adverse Effect.




          (c) No Actions or Proceedings. No Proceeding shall be pending or threatened in
writing before any Governmental or Regulatory Authority which presents a substantial risk of the
restraint or prohibition of the transactions contemplated by this Agreement or the Transaction
Documents.




          (d) Government Approvals. All authorizations, permits, consents, orders or approvals
of, or declarations or filings with, or expiration of waiting periods imposed by, any Governmental
or Regulatory Authority necessary for the consummation of the transactions contemplated by this
Agreement shall have been filed, occurred or been obtained.




          (e) Third-Party Consents. All consents or waivers listed on Schedule 7.1(e) shall
have been obtained.




          (f) SAS No. 100 Review. WCA Parent shall have received from the Emerald Companies
independent audit firm a Statement on Accounting Standards (SAS) No. 100 review of the financial
statements of the Emerald Companies for each of the three month periods ended March 31, 2010, June
30, 2010 and September 30, 2010 and the nine-month period ended September 30, 2010.




          (g) Title to Real Property. Based on the review of the title commitments, title
exception documents and updated surveys obtained by the WCA Parties pursuant to Section
5.15, the title to the Emerald Companies Real Property are reasonably satisfactory to WCA
Parent, and the Title Insurer is ready, willing and able to issue at Closing, subject to the
payment of the appropriate premium therefor, title insurance policies in a form reasonably
satisfactory to WCA insuring the title to such properties subject to no exceptions other than those
that are reasonably acceptable to WCA Parent or which constitute Permitted Liens.








46









 








          (h) Emerald Parties’ Deliveries. The applicable Emerald Parties shall have delivered,
or caused to be delivered, to WCA Parent the following (which in each case shall be in form and
substance satisfactory to WCA Parent):




               (i) Compliance Certificate. An authorized officer of EWS Holdings shall have
delivered to WCA Parent at the Closing a certificate stating that the conditions specified in
Sections 7.1(a) and (b) have been fulfilled.



               (ii) Secretary’s Certificate. The Secretary of EWS Holdings shall have delivered to
WCA Parent at the Closing a certificate stating that all approvals necessary to consummate the
transactions contemplated by this Agreement have been obtained and attaching thereto: (i) a copy of
the Organizational Documents of each Emerald Party (as amended and in effect through the date of
the Closing), certified by the Secretary of each such Emerald Party as the true and correct copies
thereof as of the Closing; and (ii) copies of resolutions of the manager and resolutions of the
members of EWS Holdings, evidencing the approval of this Agreement, the Transaction Documents and
other matters contemplated hereby.



               (iii) Escrow Agreement. EWS Holdings Holder shall have executed and delivered the
Escrow Agreement in form reasonably acceptable to WCA Parent.



               (iv) Pay-Off Letters. WCA shall have received a pay-off letter from each of Comerica
and the Other Creditors that confirms the satisfaction, release and termination of each Emerald
Party’s indebtedness to such party upon consummation of the transactions contemplated under this
Agreement.



               (v) Voting Agreement. EWS Holdings shall have executed and delivered a Voting
Agreement in substantially the form attached hereto as Exhibit B.



               (vi) Stockholders’ Agreement. EWS Holdings Holder shall have executed and delivered
the Stockholders’ Agreement in substantially the form attached hereto as Exhibit C.



               (vii) Release of Liens. Except for any Liens which are to be released by Comerica and
each Other Creditor upon receipt of the payoff amount set forth in such creditors’ payoff letter
pursuant to Sections 2.1(a) and 2.1(b), all other Liens (except for Permitted
Liens) shall have been irrevocably released and the Emerald Parties shall have delivered
documentation reasonably acceptable to WCA Parent to evidence that such Liens have been released.



               (viii) Delivery of Financial Statements. EWS Holdings shall have delivered to WCA
Parent the following financial statements in form satisfactory to WCA Parent in its discretion: (A)
“carve out” audited financial statements for the Emerald Companies for the fiscal years ended
December 31, 2008 and 2009 which have been audited by a PCAOB registered accounting firm, (B)
complete unaudited financial statements for the Emerald Companies for the nine month periods ended
September 30, 2009 and 2010, and (C) complete unaudited financial statements for the Emerald
Companies for each of the three month periods ended March 31, 2010, June 30, 2010 and September 30,
2010 and for the month ended October 31, 2010.



47









 





               (ix) Delivery of Final Account Worksheet, Final Deferred Revenue Worksheet and Final
Reimbursement and Prepaid Items Worksheet. EWS Holdings shall have delivered to WCA Parent the
Final Account Worksheet, Final Deferred Revenue Worksheet and Final Reimbursement and Prepaid Items
Worksheet, each in form reasonably acceptable to WCA Parent.



               (x) Assignment and Assumption Agreement. The Emerald Companies shall have executed a
Assignment and Assumption Agreement with EWS Gulf Coast relating to the Accounts Receivable and
Accounts Payable in the form attached as Exhibit A hereto.



               (xi) Release Agreement. The Emerald Parties and the Mac Land Companies shall have
executed and delivered a release agreement in form reasonably acceptable to WCA Parent.



     7.2 Conditions to the Emerald Parties’ Obligations. The obligations of the Emerald
Parties to the WCA Parties under this Agreement are subject to the fulfillment or waiver by EWS
Holdings in writing on or before each Closing of each of the following conditions by the WCA
Parties:



          (a) Representations and Warranties. The representations and warranties of the WCA
Parties contained in Article 4 shall be true and correct on and as of the Closing with the
same effect as though such representations and warranties had been made on and as of the date of
the Closing, except where the failure of any such representation or warranty to be true and correct
would not reasonably be expected to have a Material Adverse Effect on the WCA Parties.




          (b) Performance. The WCA Parties shall have performed and complied with all
agreements, obligations and conditions contained in this Agreement or the Transaction Documents
that are required to be performed or complied with by the WCA Parties on or before the Closing,
except where the failure to so perform would not reasonably be expected to have a Material Adverse
Effect, it being acknowledged that the failure to pay all or any portion of the Purchase Price
shall be deemed to be failure to perform that would have a Material Adverse Effect.




          (c) No Actions or Proceedings. No Proceeding shall be pending or threatened in
writing before any Governmental or Regulatory Authority which presents a substantial risk of the
restraint or prohibition of the transactions contemplated by this Agreement or the Transaction
Documents.




          (d) Government Approvals. All authorizations, permits, consents, orders or approvals
of, or declarations or filings with, or expiration of waiting periods imposed by, any Governmental
or Regulatory Authority necessary for the consummation of the transactions contemplated by this
Agreement shall have been filed, occurred or been obtained.




          (e) Third-Party Consents. All consents or waivers listed on Schedule 7.2(e) shall
have been obtained.






48









 








          (f) WCA Party Deliveries. The applicable WCA Party shall have delivered, or caused to
be delivered, to EWS Holdings or such other Persons described below, the following (which in each
case shall be in form and substance satisfactory to EWS Holdings):




               (i) Compliance Certificate. The President of WCA Parent shall have delivered to EWS
Holdings at the Closing a certificate stating that the conditions specified in Sections
7.2(a) and (b) have been fulfilled.



               (ii) Escrow Agreement. WCA Parent shall have executed and delivered the Escrow
Agreement in form reasonably acceptable to EWS Holdings.



               (iii) Net Cash Purchase Price. In the event the Net Cash Purchase Price is greater
than $0, WCA Parent shall have paid the Net Cash Purchase Price to EWS Holdings in accordance with
Section 2.1(d).



               (iv) Comerica Release Amount. WCA Parent shall have paid the Comerica Payment Amount
to Comerica in accordance with the Comerica Payoff Letter.



               (v) Other Indebtedness Payment Amount. WCA Parent shall have paid the Other
Indebtedness Payment Amount to each of the Other Creditors in accordance with each of the Other
Creditor Payoff Letters.



               (vi) Transaction Expenses Amount. WCA Parent shall have paid the Transaction Expenses
Amount to each of the Emerald Professionals in accordance with each of the Emerald Professional
Payoff Letters.



               (vii) Issuance of Closing Shares. WCA Parent shall have issued the Indemnification
Shares to the Escrow Agent to be held in the Escrow Fund for the benefit of EWS Holdings.



               (viii) Issuance of Distributed Shares. WCA Parent shall have issued the Distributed
Shares to EWS Holdings.



               (ix) Stockholders’ Agreement. WCA Parent shall have executed and delivered the
Stockholders’ Agreement in substantially the form attached as Exhibit C hereto.



               (x) Registration Rights Agreement. WCA Parent shall have executed and delivered the
Registration Rights Agreement in substantially the form attached as Exhibit D hereto.



               (xi) Release Agreement. WCA Parties shall have executed and delivered a release
agreement in form reasonably acceptable to EWS Holdings.



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ARTICLE VIII




8. Termination.




     8.1 Termination. This Agreement may be terminated, and the transactions contemplated
hereby may be abandoned:



          (a) at any time before the Closing, by mutual written agreement of the Emerald Parties and the
WCA Parties;




          (b) at any time before the Closing, by the Emerald Parties or the WCA Parties, in the event
(i) of a material breach hereof by the non-terminating party if such non-terminating party fails to
cure such breach within five (5) Business Days following notification thereof by the terminating
party or (ii) upon notification of the non-terminating party by the terminating party that the
satisfaction of any condition to the terminating party’s obligations under this Agreement becomes
impossible or impracticable with the use of commercially reasonable efforts if the failure of such
condition to be satisfied is not caused by a breach hereof by the terminating party; or




          (c) at any time after March 31, 2011 by either the Emerald Parties, on the one hand, or the
WCA Parties, on the other hand, upon notification of the non-terminating party by the terminating
party if the Closing shall not have occurred on or before such date and such failure to consummate
the Closing is not caused by a material breach of this Agreement by the terminating party.




     8.2 Effect of Termination. If this Agreement is validly terminated pursuant to
Section 8.1, this Agreement will forthwith become null and void, and there will be no
liability or obligation on the part of the Emerald Parties or the WCA Parties (or any of their
respective officers, directors, employees, agents or other representatives or Affiliates), except
as provided in the next succeeding sentence and except that the provisions with respect to expenses
in Section 10.1 will continue to apply following any such termination. Notwithstanding any
other provision in this Agreement to the contrary, upon termination of this Agreement pursuant to
Article 8, the Emerald Parties will remain liable to the WCA Parties for any willful breach
of this Agreement by the Emerald Parties existing at the time of such termination, and the WCA
Parties will remain liable to the Emerald Parties for any willful breach of this Agreement by the
WCA Parties existing at the time of such termination, and the Emerald Parties or the WCA Parties
may seek such remedies, including damages and fees of attorneys, against the other with respect to
any such breach as are provided in this Agreement or as are otherwise available at Law or in
equity.



ARTICLE IX




9. Certain Definitions.




     “Accounts Payable” means the accounts and amounts due and owing from the Emerald Companies to
its vendors, suppliers and other trade creditors on or prior to the Closing Date.



     “Accounts Receivable” means all trade accounts receivable and other rights to payment from
customers of the Emerald Companies and the full benefit of all security for such accounts or rights
to payment, including, but not limited to, all trade or other accounts receivable representing
amounts receivable in respect of goods shipped or products sold or services rendered to customers
of the Emerald Companies, (b) all other accounts or notes receivable of



50









 




the Emerald Companies and
the full benefit of all security for such accounts or notes, (c) any claim, remedy or other right
related to any of the foregoing and (d) the BP Settlement Fund Receivable.




     “Acquired Businesses” means the business conducted by the Emerald Companies (but excluding,
for the avoidance of doubt, the Gulf Coast Business) of owning and operating and the Central
Florida Business, the Gainesville Transfer Station and the Orange City Property.



     “Affiliate” means (a) any entity directly or indirectly controlled by, controlling or under
common control with a Party; (b) any director or executive officer of such Party or of any entity
referred to in (a) above; and (c) if any Party is an individual, any member of the immediate family
(including parents, spouse, siblings, children and grandchildren) of such individual and any trust
whose principal beneficiary is such individual or one or more members of such immediate family and
any Person who is controlled by any such member or trust. For purposes of this definition, any
Person which owns directly or indirectly 20% or more of the securities having ordinary voting power
for the election of directors or other governing body of a corporation or 20% or more of the
partnership or other ownership interests of any entity (other than as a limited partner of such
other entity) will be deemed to “control” (including, with its correlative meanings, “controlled
by” and “under common control with”) such Person.



     “Base Cash Purchase Price” means Thirty Three Million Dollars ($33,000,000).



     “Benefit Plan” means any collective bargaining agreement or any bonus, pension, profit
sharing, deferred compensation, incentive compensation, stock ownership, stock purchase, stock
option, phantom stock, retirement, vacation, severance, disability, death benefit, hospitalization,
medical, dependent care, cafeteria, employee assistance, scholarship or other plan, program,
arrangement or understanding (whether or not legally binding) maintained in whole or in part,
contributed to, or required to be contributed to by the Companies for the benefit of any of their
respective present or former officers, employees or directors which is not a Pension Plan or
Welfare Plan.



     “BP Settlement Fund Receivable” means any account or note receivable, claim, remedy or other
right to payment from BP p.l.c. or its Affiliates or from any insurance provider or any other third
party (including, but not limited to, any alleged or actual joint tortfeasor or any Affiliate of
such joint tortfeasors) any of the foregoing Persons shall hereinafter be referred to as a “BP
Payor”) with respect to all claims asserted by or on behalf of any Emerald Company, regardless of
whether such claims are asserted before or after the Closing, with respect to damages suffered for
the period prior to the Effective Time by any such Emerald Company arising from the Deepwater
Horizon explosion and subsequent oil spill in the Gulf of Mexico, including, but not limited to,
(i) the emergency advance claim for $1,829,863 submitted on behalf of EWS Holdings to the Gulf
Coast Claims Facility administered by Kenneth R. Feinberg, as administrator thereof (the “GCCF”),
on or about November 21, 2010, or any claims for interim or final payments submitted by or on
behalf of EWS Holdings with respect to EWS and/or the Gulf Coast Business (such claim described in
this clause (i) shall hereinafter be referred to as an “EWS Holdings Claim” or a “EWS BP Claim”),
or (ii) any appeals of any denials of any EWS BP Claim.




51












 





     “Claims” means any claims, liabilities, causes of action (arising under common law,
contract or statute), suits, judgments, demands, Liens (other than Permitted Liens), or
governmental investigations by any Person (other than any Emerald Company) relating to the Emerald
Companies, including, but not limited to, any Employee Benefit Claim, Environmental Claim,
Litigation Claim, Tax Claim or Title Claim and any Claim related to the Gulf Coast Business.



     “Comerica Credit Facility” means the Third Amended and Restated Revolving Credit and Term Loan
Agreement dated August 29, 2008 by and among EWS Holdings, MacLand Holdings and the financial
institutions party thereto, as the same may be amended prior to the Effective Time.



     “Deferred Revenue” means payments received and billings for services by the Emerald Parties
prior to the Closing Date for services to be provided by the Emerald Companies after the Closing
Date.



     “Direct Claim” means any claim under Article 6 by an Indemnified Party for
indemnification other than indemnification with respect to a Third Party Claim.



     “Disposal” or “disposed” means the unpermitted discharge, deposit, injection, dumping,
spilling, leaking or placing of any Polluting Substance into or on any land or water so that such
Polluting Substance or any constituent thereof may enter the environment or be emitted into the air
or discharged into any waters, including ground waters.



     “Employee Benefits Claim” means all claims, liabilities notices, actions, causes of action
(arising under common law, contract or statute), suits, judgments, demands, liens, governmental or
private investigations arising under any Pension Plan, Welfare Plan or other Benefit Plan.



     “Environmental Claim(s)” means all claims, liabilities, notices, actions, causes of action
(arising under common law, contract or statute), suits, judgments, demands, liens, written or other
express demand for investigations or testing, demands to study or notification of status of being
potentially responsible for clean-up of any facility or for being in violation or in potential
violation of any requirement of Environmental Law, whether threatened, sought, brought or imposed
relating to or which seeks to impose liability or to recover damages, losses, payments, penalties,
costs, fines, penalties, disbursements or expenses (including, without limitation, fees
disbursements and expenses of attorneys and other professional advisors and of expert witnesses and
costs of investigation, testing and preparation) regarding any Emerald Company or any of its
facilities, its assets or any operations conducted by such Emerald Company. The term
“Environmental Claim” also includes any costs incurred in responding to efforts to require or in
testing for the need for Remediation



     “Environmental Law(s)” means any and all federal, state and local laws, ordinances, rules,
regulations, operational memoranda, interpretations and orders of courts or administrative agencies
or authorities relating to pollution, contamination, preservation, protection or cleanup of the
environment (including, without limitation, ambient air, surface water, ground water, land surface,
wildlife, wetlands and subsurface strata), including, without limitation, the



52









 




Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended; the
Solid Waste Disposal Act, as amended (“RCRA”); the Atomic Energy Act of 1954, as amended; the
Hazardous Materials Transportation Act, as amended; the Toxic Substances Control Act, as amended;
the Pollution Prevention Act of 1990, as amended; the Emergency Planning and Community Right to
know Act, as amended; the Clean Air Act, as amended; the Clean Water Act, as amended; the Oil
Pollution Act of 1990, as amended; the Safe Drinking Water Act, as amended; the Occupational Safety
and Health Act, as amended; all regulations promulgated under any of the foregoing from time to
time; and any and all other laws, rules and regulations relating to (a) improper use or treatment
of wetlands, pinelands or other protected land or wildlife; (b) pollution, contamination,
preservation, protection, decontamination, remediation or clean-up of the air, surface water,
groundwater, soil or protected lands; (c) exposure of persons or property to Polluting Substances
and the effects thereof; or (d) the release, threatened release, generation, extraction, mining,
presence, manufacture, processing, distribution in commerce, use, handling, discharge, recycling,
management, transfer, transportation, treatment, storage, Disposal or remediation of Polluting
Substances. Any specific references to a law shall include any amendments to it promulgated from
time to time.




     “Governmental or Regulatory Authority” means any court or federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality having jurisdiction
over such Emerald Company or any of their respective assets or businesses.



     “Gulf Coast Area” means, collectively, Alabama and the Florida Panhandle area as it is
commonly known.



     “Gulf Coast Assets” means all of the assets associated with the Gulf Coast Business owned,
leased or used by EWS.



     “Gulf Coast Business” means the business of (i) owning and operating those certain hauling
operations in the Gulf Coast Area owned and operated by EWS and (ii) owning and operating each of
the landfills located in the Gulf Coast Area owned and operated by certain Subsidiaries of EWS
Holdings (but excluding any Emerald Company).



     “Gulf Coast Liabilities” means all of the liabilities associated with the Gulf Coast Business
owed by EWS.



     “Knowledge of the Emerald Parties” means (i) the actual knowledge of Mike Holmes and Nat
Buonfiglio and any other officer of the Emerald Parties with a title of vice president or higher
after reasonable inquiry of any other officers, directors and other employees or consultants of the
Emerald Parties reasonably believed to have knowledge of or who is responsible for such matters
after such named person, officer, director or employee shall have performed reasonable due
diligence to investigate such matter and (ii) the actual knowledge of Justin Kaplan, Paul Echausse
and Jeffrey Dombrick.



     “Knowledge of the WCA Parties” means the actual knowledge of the executive officers of WCA
Parent after reasonable inquiry of officers, directors and other employees or consultants of such
party (or subsidiaries of such party) reasonably believed to have knowledge of or who is



53









 




responsible for such matters after such officer, director or employee shall have performed
reasonable due diligence to investigate such matter.




     “Laws” means the requirements, standards, criteria and conditions set forth in applicable
federal, state and local statutes, ordinances, permits, licenses, orders, approvals, variances,
rules and regulations, including, without limitation, all such laws, rules, ordinances, decrees and
orders relating to intellectual property protection, transportation, wage and hour, antitrust
matters, consumer protection, currency exchange, environmental protection, equal employment
opportunity, health and occupational safety, pension and employee benefit matters, securities and
investor protection matters, labor and employment matters, and trading-with-the-enemy matters.



     “Lien” means any lien, mortgage, charge, restriction, pledge, security interest, option,
lease, claim, easement, encroachment or other encumbrance of any kind or nature whatsoever or
however arising, including any Tax lien.



     “Licenses” means all licenses, permits (including, without limitation, environmental,
construction and operation permits), franchises, certificates (including, without limitation,
certificates of occupancy) and other governmental authorizations.



     “Litigation Claim” means all claims, liabilities, causes of action (arising under common law,
contract or statute), suits, judgments, demands, Liens (other than Permitted Liens), governmental
or private investigations arising pursuant to any Proceeding involving any Emerald Party.



     “Loss” means any loss, damage, injury, liability, claim, demand, Proceeding, settlement,
judgment, award, fine, penalty, tax, fee, charge, cost or expense (including, without limitation,
reasonable costs of attempting to avoid or in opposing the imposition thereof, interest, penalties,
costs of preparation and investigation, and the reasonable fees, disbursements and expenses of
attorneys, accountants and other professional advisors) with respect to any claim, as well as with
respect to compliance with the requirements of the Environmental Laws or Environmental Claims.



     “Material Adverse Effect” means, with respect to any Person, any change, effect, event,
occurrence, state of facts or development that, individually or in the aggregate with any other
change, effect, event, occurrence, state of facts or development, is materially adverse to the
financial condition or results of operations of such Person, taken as a whole, and that cannot be
cured or favorably resolved prior to the Closing Date; provided, however, that none
of the following shall be deemed in itself, or in any combination, to constitute, and none of the
following shall be taken into account in determining whether there has been or will be, a Material
Adverse Effect: (a) any adverse change, effect, event, occurrence, state of facts or development
attributable to the announcement or pendency of the transactions contemplated by this Agreement;
(b) any adverse change, effect, event, occurrence, state of facts or development attributable to
conditions generally affecting the industry in which such Person participates, the United States
economy as a whole or the capital markets in general or the geographical markets in which such
Person operates; (c) any adverse change, event, development, or effect arising from or relating to
changes in GAAP; (d) any adverse change, event, development, or effect arising from or relating to
changes or proposed changes in Law or other binding directives issued



54









 




by any Governmental or Regulatory Authority; (e) any adverse change, effect, event,
occurrence, state of facts or development resulting from or relating to compliance with the terms
of, or the taking of any action required by, this Agreement; or (f) any adverse change, effect,
event, occurrence, state of facts or development arising from or relating to the commencement,
continuation or escalation of a war, material armed hostilities or other material international or
national calamity or act of terrorism directly or indirectly involving the United States of
America.




     “NASDAQ” shall mean The Nasdaq Global Market.



     “Organizational Documents” means with respect to any Person, (a) the articles or certificate
of incorporation and the by-laws of a corporation; (b) any charter or similar document adopted or
filed in connection with the creation, formation, or organization of a Person (e.g., a certificate
of formation, articles of organization or certificate of limited partnership), and any agreement
governing such Person (e.g., a limited liability company agreement, operating agreement or
partnership agreement); and (c) any amendment to any of the foregoing.



     “Parties” means the parties hereto.



     “Permitted Liens” means (a) those encumbrances to title listed on Section 3.11 of the Emerald
Disclosure Schedule, (b) mechanic’s, materialmen’s, landlord’s and similar liens, (c) liens arising
under worker’s compensation, unemployment insurance, social security, retirement and similar
legislation, (d) liens on goods in transit incurred pursuant to documentary letters of credit, in
each case arising in the ordinary course of business, (e) liens for Taxes not yet due and payable,
(f) liens for Taxes which are being contested in good faith and by appropriate proceedings, (g)
liens relating to capitalized lease financings or purchase money financings that have been entered
into in the ordinary course of business, (h) liens arising solely by action of the WCA Parties, (i)
with respect to each parcel of real property owned by any of the Emerald Companies (1) minor
imperfections of title, if any, none of which materially detracts from the value or impairs the use
of such parcel of real property or impairs the operations of the applicable Emerald Companies
thereon, (2) zoning laws and other land use restrictions that do not impair the present or
anticipated use of such parcel of real property, and (3) matters disclosed on any of the title
insurance policies, commitments, opinions, abstracts, and surveys previously delivered to the WCA
Parties and (j) liens which do not materially and adversely impair the use or value of the assets
of the Emerald Companies.



     “Person” means an individual, corporation, partnership, association, joint stock company,
limited liability company, Governmental or Regulatory Authority, trust, unincorporated organization
or other legal entity.



     “Polluting Substances” means (a) any material, waste or substance designated, classified,
regulated or included within the statutory and/or regulatory definitions of “hazardous substances,”
“radioactive material,” “hazardous waste,” “extremely hazardous substance,” “hazardous chemical,”
“regulated substance,” “contaminant,” “pollutant,” “hazardous material,” or “toxic substance” under
any Environmental Law; (b) any material, waste or substance which is or contains hydrocarbons,
petroleum, oil or a fraction thereof; (c) radioactive material (including regulated naturally
occurring radioactive materials); (d) solid waste, as defined under



55









 




RCRA other than which is disposed of in compliance with applicable Environmental Laws, that
poses an imminent and substantial endangerment to health or the environment; (e) such other
substances, materials, or wastes that become classified or regulated as hazardous or toxic under
any federal, state or local law or regulation from time to time; and (f) methane to the extent it
is not being managed in accordance with applicable Law. To the extent that the laws or regulations
of any applicable state or local jurisdiction establish a meaning for any term defined herein
through reference to federal Environmental Laws which is broader than the meaning under such
federal Environmental Laws, such broader meaning shall apply.




     “Prepaid Item Amount” means the aggregate amounts paid by the Emerald Companies prior to
Closing for expenses of the Emerald Companies (other than with respect to the Gulf Coast Business)
to be incurred after the Effective Time.



     “Proceeding” means any action, suit, claim, investigation, review or other judicial,
administrative, arbitral, investigatory or other proceeding. “Proceeding” includes all
post-judgment actions (including but not limited to appeals and actions for collection), which any
such post-judgment action shall be considered a “Proceeding” until such time as a final,
non-appealable determination has been issued with respect to such post-judgment action. If any
Proceeding is settled, such Proceeding shall be deemed final upon earlier of (i) the completion of
all obligations of all parties to such settlement or (ii) the execution and delivery of a
settlement agreement among all parties to such settlement.



     “Release” means any unpermitted release, spill, emission, leaking, pumping, pouring, dumping
emptying, injection, disposal, discharge, leaching or migration of any Polluting Substance.



     “Remediation” means any action necessary to (i) correct noncompliance with the requirements of
Environmental Law, or (ii) to abate Releases of Polluting Substances in violation of, or which
would cause liability under any Environmental Law including (a) services of professionals; or, (b)
the removal and Disposal, in situ remediation, reclamation, cleanup, decontamination or containment
(if containment is practical under the circumstances and is permissible within requirements of
Environmental Law), investigation, or monitoring of any and all Polluting Substances at or on any
Business Facility of any Company.



     “Subsidiary” means, when used with respect to any party, any corporation, partnership or other
organization, whether incorporated or unincorporated, which such party owns more than fifty percent
(50%) of the aggregate voting power (or of any other form of voting equity interests in the case of
a Person that is not a corporation) which is beneficially owned by that party directly or
indirectly through one or more other Persons.



     “Tax” means any tax of any kind, however denominated, including any interest, penalties, fines
or other additions to tax that may become payable in respect thereof or in respect of a failure to
comply with any requirement relating to any Tax Return, imposed by any federal, territorial, state,
local or foreign Governmental or Regulatory Authority, including all income, gross income, gross
receipts, profits, goods and services, social security, health, old age security, federal pension
plan, state pension plan, sales and use, ad valorem, excise, custom, franchise, business license,
property, occupation, real property gains, payroll and employee withholding,



56









 




unemployment or employment insurance, real and personal property, stamp, environmental,
transfer, workers’ compensation, payroll, severance, alternative minimum, windfall, and capital
gains taxes, premiums, surtaxes, charges, levies, assessments, reassessments, and other obligations
of the same or a similar nature to any of the foregoing whether or not shown on a Tax Return,
whether computed on a separate or consolidated, unitary or combined basis or in any other manner,
whether disputed or not and including any obligation to indemnify or otherwise assume or succeed to
the Tax liability of any other Person.




     “Tax Claim” means any Tax owed, due or payable by any Emerald Party for any Tax period (or a
portion thereof) ending on or before the Closing Date.



     “Tax Return” means all tax returns, declarations, reports, estimates, information returns and
statements or any other schedule or attachment thereto and including any amendment thereof required
to be filed with any Taxing Authority, or provided to any partner, stockholder, joint venturer or
member under federal, state, local or foreign Laws (including reports with respect to backup
withholding and payments to Persons other than Taxing Authorities), and annual tax returns or
information returns on behalf of employee benefit plans sponsored by EWS Holdings or any of its
respective ERISA Affiliates.



     “Taxing Authority” means any Governmental or Regulatory Authority responsible for the
imposition, assessment, enforcement or collection of any Tax.



     “Third Party Claim” means any claim, issuance of any order or the commencement of any
Proceeding by any Person who is not a Party to this Agreement or an Affiliate of a Party.



     “Title Claims” means any claims, liabilities, causes of action (arising under common law,
contract or statute), suits, judgments, demands, Liens (other than Permitted Liens), governmental
or private investigations arising due to any Lien (other than a Permitted Lien) on any property or
assets owned by any Emerald Company.



     “Trading Day” means a full trading day (beginning at 9:30 a.m., New York City time, and ending
at 4:00 p.m., New York City time) on the NASDAQ.



     “Treasury Regulations” means the regulations promulgated by the United States Treasury
Department under the Code.



ARTICLE X



10. General.




     10.1 Costs. The Parties shall pay their respective expenses (including, without
limitation, the fees, disbursements and expenses of their attorneys and accountants) in connection
with the negotiation and preparation of this Agreement and the consummation of the transactions
contemplated hereby.



     10.2 Entire Agreement. This Agreement, together with all exhibits and schedules hereto, each of which are hereby
incorporated by this reference and made a part hereof, embodies the entire agreement and
understanding between the Parties hereto relating to the



57









 




subject matter hereof and supersedes any
prior agreements and understandings relating to the subject matter hereof.




     10.3 Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which collectively shall constitute one and the
same instrument representing this Agreement between the Parties hereto, and it shall not be
necessary for the proof of this Agreement that any Party produce or account for more than one such
counterpart. Facsimile signatures shall be given the same force and effect as original signatures
and shall be treated for all purposes and intents as original signatures.



     10.4 Notices. All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given (i) on the day of service
if served personally on the Party to whom notice is to be given, (ii) on the day of transmission if
sent via facsimile transmission to the facsimile number given below, (iii) on the day after
delivery to an overnight courier service, or (iv) on the fifth day after mailing, if mailed to the
Party to whom notice is to be given, by first class mail, registered or certified, postage prepaid
and properly addressed, to the Party as follows:



	 	 	 	 
	 	 	 
	 	If to the WCA Parties:

	 	WCA Waste Corporation

One Riverway, Suite 1400

Houston, Texas 77056

Attention: President

Facsimile: 713-292-2455
	 	 
	 	 
	 	Copy to:

	 	Andrews Kurth LLP

600 Travis, Suite 4200

Houston, Texas 77002

Attention: Jeff Dodd

Facsimile: 713-238-7368
	 	 
	 	 
	 	If to EWS Holdings:

	 	c/o BNY Mellon-Alcentra Mezzanine Partners

200 Park Avenue, 7th Floor

New York, New York 10166

Attention: Justin Kaplan

Facsimile: (212) 922-8529
	 	 
	 	 
	 	Copy to:

	 	Katten Muchin Rosenman LLP

525 W. Monroe Street

Chicago, Illinois 60661

Attention: Michael W. Jones

Facsimile: (312) 577-4492






     Any Party may change its address for the purpose of this Section 10.4 by giving the
other Party written notice of its new address in the manner set forth above.



     10.5 Modification or Waiver. This Agreement may be amended, modified or superseded,
and any of the terms, covenants, representations, warranties or conditions hereof



58









 




may be waived,
but only by a written instrument executed by the Parties hereto. No waiver of any nature, in any
one or more instances, shall be deemed to be or construed as a further or continued waiver of any
condition or any breach of any other term, covenant, representation or warranty in this Agreement.




     10.6 Binding Effect and Assignment. Except as otherwise provided in this Agreement,
no Party hereto shall assign this Agreement or any rights or obligations hereunder without the
prior written consent of the other Party hereto and any such attempted assignment without such
prior written consent shall be void and of no force and effect. This Agreement shall inure to the
benefit of and shall be binding upon the successors and permitted assigns of the Parties hereto.



     10.7 Governing Law; Venue; Waiver of Jury Trial.



          (a) THIS AGREEMENT, AND ALL QUESTIONS RELATING TO ITS VALIDITY, INTERPRETATION, PERFORMANCE
AND ENFORCEMENT (INCLUDING, WITHOUT LIMITATION, PROVISIONS CONCERNING LIMITATIONS OF ACTION), SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (EXCLUSIVE OF THE
CONFLICT OF LAW PROVISIONS THEREOF) APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE.




          (b) THE PARTIES (i) AGREE AND CONSENT TO THE JURISDICTION OF THE COURT OF CHANCERY OF THE
STATE OF DELAWARE; (ii) ACKNOWLEDGE THAT SUCH COURT SHALL CONSTITUTE PROPER AND CONVENIENT FORUM
FOR THE RESOLUTION OF ANY ACTIONS AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF; AND
(iii) AGREE THAT SUCH COURT SHALL BE THE SOLE AND EXCLUSIVE FORUM FOR THE RESOLUTION OF ANY ACTIONS
AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF.




          (c) THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.




     10.8 Section Headings. The section headings contained in this Agreement are inserted for convenience of reference
only and shall not affect the meaning or interpretation of this Agreement.



     10.9 Severability. If for any reason whatsoever, any one or more of the provisions
hereof shall be held or deemed to be illegal, inoperative, unenforceable or invalid as applied to
any particular case or in all cases, such circumstances shall not have the effect of rendering such
provision illegal, inoperative, unenforceable or invalid in any other case or of rendering any of
the other provisions hereof illegal, inoperative, unenforceable or invalid. Furthermore, in lieu
of each such illegal, invalid, unenforceable or inoperative provision, there shall be added
automatically, as part of this Agreement, a provision similar in terms of such illegal, invalid,



59









 




unenforceable or inoperative provision as may be possible and as shall be legal, valid, enforceable
and operative.




     10.10 Drafting. The Parties acknowledge and confirm that they and/or their respective
attorneys have participated jointly in the review and revision of this Agreement and that it has
not been written solely by any one Party or counsel for any one Party. The Parties therefore
stipulate and agree that the rule of construction to the effect that any ambiguities are to be or
may be resolved against the drafting Party shall not be employed in the interpretation of this
Agreement to favor any Party against another.



     10.11 References. The use of the words “hereof,” “herein,” “hereunder,” “herewith,”
“hereto,” “hereby,” and words of similar import shall refer to this entire Agreement, and not to
any particular article, section, subsection, clause, or paragraph of this Agreement, unless the
context clearly indicates otherwise.



     10.12 Calendar Days, Weeks, Months and Quarters. Unless otherwise specified herein,
any reference to “day,” “week,” “month” or “quarter” herein shall mean a calendar day, week, month
or quarter.



     10.13 Gender; Plural and Singular. Unless the context clearly indicates otherwise,
the singular shall include the plural and vice versa. Whenever the masculine, feminine or neuter
gender is used inappropriately in this Agreement, this Agreement shall be read as if the
appropriate gender had been used.



     10.14 Cumulative Rights. All rights and remedies specified herein are cumulative and
are in addition to, not in limitation of, any rights or remedies the Parties may have by statute,
at law, in equity, or otherwise, and all such rights and remedies may be exercised singularly or
concurrently.



     10.15 No Implied Covenants. Each Party, against the other, waives and relinquishes any right to assert, either as a
claim or as a defense, that any other Party is bound to perform or liable for the nonperformance of
any implied covenant or implied duty or implied obligation.



     10.16 Indirect Action. Where any provision hereof refers to action to be taken by any
Person or Party, or which such Person or Party is prohibited from taking, such provision shall be
applicable whether the action in question is taken directly or indirectly by such Person or Party.



     10.17 Attorneys’ Fees. The prevailing Party in any dispute between the Parties
arising out of the interpretation, application or enforcement of any provision hereof shall be
entitled to recover all of its reasonable attorneys’ fees and costs whether suit be filed or not,
including without limitation costs and attorneys’ fees related to or arising out of any trial or
appellate proceedings.



     10.18 Time of the Essence. With regard to all dates and time periods set forth or
referred to in this Agreement, time is of the essence.



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     10.19 No Third-Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any person other than the Parties, the WCA Indemnified Parties, the Emerald
Indemnified Parties and their respective successors and permitted assigns.



     10.20 Specific Performance. The Parties hereby acknowledge and agree that the failure
of any of the WCA Parties, on the one hand, or any of the Emerald Parties, on the other hand, as
applicable, to perform its agreements and covenants hereunder, including its failure to take all
actions as are necessary on its part to consummate the Closing, will cause irreparable injury to
the other Party, for which damages, even if available, will not be an adequate remedy.
Accordingly, each Party hereby consents to the issuance of injunctive relief by an court of
competent jurisdiction to compel performance of any of the WCA Party’s and/or any of the Emerald
Party’s obligations, as applicable, and to the granting by any court of the remedy of specific
performance of its obligations hereunder.



     10.21 MacLand Companies; WCA Mississippi. The MacLand Companies and WCA Mississippi
are Parties hereto only for the purpose of acknowledging and agreeing to the amendment of the
Original Agreement, and, for the avoidance of doubt, shall not be liable for anything arising out
of or relating to the representations, warranties, covenants or other obligations of the Emerald
Parties or the WCA Parties under or relating to this Agreement.



[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]



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     IN WITNESS WHEREOF, the undersigned have executed this Amended and Restated Equity Interest
Purchase Agreement as of the date first above stated.



	 	 	 	 	 
	 	WCA PARTIES:




WCA WASTE CORPORATION,

a Delaware corporation

 	 
	 	By:  	/s/ Jerome M. Kruszka
 	 
	 	 	Name:  	Jerome M. Kruszka 	 
	 	 	Title:  	President & Chief Operating Officer 	 
	 
	 	WCA WASTE SYSTEMS, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Jerome M. Kruszka
 	 
	 	 	Name:  	Jerome M. Kruszka 	 
	 	 	Title:  	President 	 
	 
	 	WCA OF MISSISSIPPI, LLC,

a Delaware limited liability company

 	 
	 	By:  	/s/ Jerome M. Kruszka
 	 
	 	 	Name:  	Jerome M. Kruszka 	 
	 	 	Title:  	President 	 
	 



Signature Page to

Amended and Restated Equity Interest Purchase Agreement



 









 





	 	 	 	 	 
	 	EMERALD PARTIES:




EWS HOLDINGS, LLC,

a Delaware limited liability company

 	 
	 	By:  	/s/ Justin Kaplan
 	 
	 	 	Name:  	Justin Kaplan 	 
	 	 	Title:  	Vice President & Secretary 	 
	 
	 	WRH GAINESVILLE, LLC,

a Florida limited liability company

 	 
	 	By:  	/s/ Justin Kaplan
 	 
	 	 	Name:  	Justin Kaplan 	 
	 	 	Title:  	Vice President & Secretary 	 
	 
	 	WRH GAINESVILLE HOLDINGS, LLC,

a Florida limited liability company

 	 
	 	By:  	/s/ Justin Kaplan
 	 
	 	 	Name:  	Justin Kaplan 	 
	 	 	Title:  	Vice President & Secretary 	 
	 
	 	WRH ORANGE CITY, LLC,

a Florida limited liability company

 	 
	 	By:  	/s/ Justin Kaplan
 	 
	 	 	Name:  	Justin Kaplan 	 
	 	 	Title:  	Vice President & Secretary 	 
	 
	 	EWS CENTRAL FLORIDA HAULING, LLC,

a Florida limited liability company

 	 
	 	By:  	/s/ Justin Kaplan
 	 
	 	 	Name:  	Justin Kaplan 	 
	 	 	Title:  	Vice President & Secretary 	 
	 



Signature Page to

Amended and Restated Equity Interest Purchase Agreement



 









 





	 	 	 	 	 
	 	EMERALD WASTE SERVICES, LLC,

a Florida limited liability company

 	 
	 	By:  	/s/ Justin Kaplan
 	 
	 	 	Name:  	Justin Kaplan 	 
	 	 	Title:  	Vice President & Secretary 	 
	 
	 	MACLAND HOLDINGS, INC.,

a Delaware corporation

 	 
	 	By:  	/s/ Justin Kaplan
 	 
	 	 	Name:  	Justin Kaplan 	 
	 	 	Title:  	Vice President & Secretary 	 
	 
	 	MACLAND DISPOSAL CENTER, INC.,

a Mississippi corporation

 	 
	 	By:  	/s/ Justin Kaplan
 	 
	 	 	Name:  	Justin Kaplan 	 
	 	 	Title:  	Vice President & Secretary 	 
	 
	 	MACLAND DISPOSAL INC. II,

a Mississippi corporation

 	 
	 	By:  	/s/ Justin Kaplan
 	 
	 	 	Name:  	Justin Kaplan 	 
	 	 	Title:  	Vice President & Secretary 	 
	 



Signature Page to

Amended and Restated Equity Interest Purchase Agreement