EXHIBIT 2
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ASSET PURCHASE AGREEMENT AND
PLAN OF REORGANIZATION
BY AND AMONG
X.X. XXXXXXXX QUARRIES, INC.,
THE SHAREHOLDERS OF
X.X. XXXXXXXX QUARRIES, INC.,
AND VULCAN MATERIALS COMPANY
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TABLE OF CONTENTS
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[Not Part of the Agreement]
ARTICLE I: ASSETS TO BE PURCHASED........................................... 2
1.1. Description of Purchased Assets........................................ 2
1.2. Retained Assets........................................................ 4
ARTICLE II: PURCHASE PRICE OF THE PURCHASED ASSETS.......................... 5
2.1. Purchase Price......................................................... 5
2.2. Form of Consideration.................................................. 7
2.3. Closing Date Payment................................................... 7
2.4. Closing Date Report.................................................... 8
2.5. Review of the Closing Date Report...................................... 8
2.6. Final Purchase Price................................................... 8
2.7. Liquidation of Seller; Pro Rata Payments............................... 9
2.8. Prorations and Certain Payments........................................ 9
2.9. Transfer Expenses...................................................... 9
ARTICLE III: ASSUMPTION OF CERTAIN LIABILITIES; CERTAIN
RELATED TRANSACTIONS.................................................... 9
3.1. Assumption of Certain Liabilities...................................... 9
3.2. Assignment of Contract Rights.......................................... 11
3.3. Execution of Assignment and Assumption Agreement....................... 11
3.4. Execution of Xxxx of Sale.............................................. 11
3.5. Agreement Regarding Cement Kiln Feedstock.............................. 12
ARTICLE IV: THE CLOSING..................................................... 12
4.1. The Closing............................................................ 12
4.2. Changes................................................................ 12
4.3. Closing Date; Effective Time........................................... 12
ARTICLE V: ACTIONS AND DELIVERIES AT OR PRIOR TO THE
CLOSING................................................................ 12
5.1. Deliveries by Seller................................................... 12
5.2. Deliveries by Buyer.................................................... 14
5.3. Provisions Relating to the Real Property, the Additional Property and
the Leasehold Property................................................. 14
5.4. Provisions Relating to Machinery and Equipment......................... 16
5.5. Eminent Domain......................................................... 17
5.6. Environmental Matters.................................................. 17
ARTICLE VI: COVENANTS OF BUYER, SELLER AND THE
SHAREHOLDERS........................................................... 19
6.1. Inspection............................................................. 19
6.2 Exploration............................................................ 19
6.3. Conduct of Business Prior to Closing................................... 20
6.4. Consents; HSR Act...................................................... 21
6.5. Employee Compensation, Etc............................................. 21
6.6. No Public Announcement................................................. 21
6.7. No Third-Party Negotiations............................................ 22
6.8. Supplemental Disclosure................................................ 22
6.9. Discharge of Liens and Encumbrances.................................... 22
ARTICLE VII: POST-CLOSING COVENANTS OF BUYER, SELLER AND
THE SHAREHOLDERS....................................................... 22
7.1. Non-Competition Agreement.............................................. 22
7.2. Further Assurances..................................................... 23
7.3. Confidentiality........................................................ 23
7.4. Availability of Employees and the Shareholders......................... 23
7.5. Asphalt Plant Site License............................................. 23
ARTICLE VIII................................................................. 23
ARTICLE IX: REPRESENTATIONS AND WARRANTIES OF SELLER
AND THE SHAREHOLDERS................................................... 24
9.1. Organization, Etc...................................................... 24
9.2. Authority.............................................................. 24
9.3. Approval............................................................... 25
9.4. Governmental Approval and Consents..................................... 25
9.5. Machinery and Equipment................................................ 25
9.6. Property and Improvements.............................................. 25
9.7. Good Title, Etc........................................................ 26
9.8. No Violation of Law; No Litigation..................................... 26
9.9. No Adverse Change...................................................... 27
9.10. No Disposition of Assets, Etc.......................................... 27
9.11. Employees, Compensation, Etc........................................... 27
9.12. Labor Relations........................................................ 29
9.13. Employment Claims...................................................... 29
9.14. Contracts and Commitments.............................................. 29
9.15. Financial Statements................................................... 29
9.16. No Undisclosed Liabilities............................................. 30
9.17. Tax Matters............................................................ 30
9.18. Employee Taxes, Etc.................................................... 30
9.19. Insurance.............................................................. 31
9.20. Ownership of Essential Assets; Presence of Essential Assets............ 31
9.21. Environmental Laws and Regulations..................................... 31
9.22. No Untrue Statements................................................... 33
9.23. Reliance............................................................... 34
9.24. Confidential Material.................................................. 34
9.25. No Undue Influence..................................................... 34
9.26. No Materially Adverse Contracts........................................ 34
9.27. Representations and Warranties of Shareholders......................... 34
9.28. Brokers and Finders.................................................... 36
9.29. Intellectual Property.................................................. 36
ARTICLE X: REPRESENTATIONS AND WARRANTIES OF BUYER.............................. 37
10.1. Organization, Etc...................................................... 37
10.2. Authority.............................................................. 37
10.3. Approval............................................................... 37
10.4. Governmental Approval and Consents..................................... 37
10.5. No Litigation.......................................................... 37
10.6. No Untrue Statements................................................... 38
10.7. Buyer's Capitalization................................................. 38
10.8. Brokers and Finders.................................................... 38
10.9. Purchase Price......................................................... 38
ARTICLE XI: SURVIVAL; INDEMNIFICATION; RELATED MATTERS......................... 38
11.1. Survival............................................................... 38
11.2. Indemnification........................................................ 39
ARTICLE XII: CONDITIONS TO CLOSING APPLICABLE TO BUYER......................... 42
12.1. Correctness of Warranties, Etc......................................... 42
12.2. No Undisclosed Liabilities, Etc........................................ 42
12.3. No Proceedings......................................................... 42
12.4. Satisfaction of Buyer and Its Counsel.................................. 42
12.5. Opinion of Counsel..................................................... 42
12.6. Consents............................................................... 42
12.7. Reserves............................................................... 43
12.8. Environmental and Land Use............................................. 43
12.9. Deliveries............................................................. 43
12.10 Extension of Bellwood Quarry Lease..................................... 43
12.11. Estoppel Certificates.................................................. 43
ARTICLE XIII: CONDITIONS TO CLOSING APPLICABLE TO SELLER
AND THE SHAREHOLDERS................................................... 43
13.1. Correctness of Warranties, Etc......................................... 43
13.2. No Proceedings......................................................... 44
13.3. Satisfaction of Seller and Its Counsel................................. 44
13.4. Opinion of Counsel to Buyer............................................ 44
ARTICLE XIV: BULK SALES LAWS.................................................... 44
ARTICLE XV: MISCELLANEOUS....................................................... 44
15.1. Termination of Agreement............................................... 44
15.2. Notices................................................................ 45
15.3. Headings; Captions................................................ 47
15.4. Incorporation of Exhibits......................................... 47
15.5. Entire Agreement and Amendment.................................... 47
15.6. Successors and Assigns............................................ 47
15.7. Governing Law..................................................... 48
15.8. Counterparts...................................................... 49
15.9. Reserved.......................................................... 49
15.10. Taxes; Prorations................................................. 49
15.11. No Benefit to Others.............................................. 49
15.12. Partial Invalidity................................................ 49
15.13. Investigation..................................................... 49
15.14. Public Announcements.............................................. 49
15.15. Dispute Resolution................................................ 50
15.16. Knowledge......................................................... 50
ASSET PURCHASE AGREEMENT
AND PLAN OF REORGANIZATION
ASSET PURCHASE AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is
made and entered into as of this 29th day of September, 1997, by and among X.X.
XXXXXXXX QUARRIES, INC., a Georgia corporation ("Seller"), the shareholders of
Seller listed on Exhibit A hereto (each a "Shareholder", and collectively, the
"Shareholders") and VULCAN MATERIALS COMPANY, a New Jersey corporation
("Buyer").
W I T N E S S E T H :
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WHEREAS, Seller is currently in the business of aggregate production and
sales, including, without limitation, the extraction, loading, unloading,
handling, processing, stockpiling and selling of crushed aggregates or materials
at (a) the quarry located at Bellwood in the City of Atlanta, Xxxxxx County,
Georgia upon the tracts or parcels of land more particularly described in
Exhibit B hereto (the "Bellwood Quarry"), and (b) the quarry located in Polk
County, Georgia upon the tracts or parcels of land more particularly described
in Exhibit C hereto (the "Rockmart Quarry") (collectively, the "Business");
WHEREAS, Seller wishes to transfer the Purchased Assets (as hereinafter
defined) to Buyer solely in exchange for the Stock Consideration (as hereinafter
defined) and the assumption of liabilities described herein;
WHEREAS, Buyer wishes to acquire the Purchased Assets from Seller, all as
hereinafter more fully set forth;
WHEREAS, it is the intention of Seller and Buyer that the transfer of the
Purchased Assets, representing substantially all of the properties and assets of
Seller, shall qualify for federal income tax purposes as a "reorganization"
within the meaning of Section 368(a)(1)(C) of the Internal Revenue Code of 1986,
as amended (the "Code"); and
WHEREAS, as an integral part of the transaction, it is the intention of the
parties that Seller distribute the Stock Consideration to its shareholders and
completely liquidate and dissolve;
NOW, THEREFORE, for and in consideration of Ten and 00/100 Dollars, the
mutual representations, warranties, covenants and agreements hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto mutually covenant and agree as
follows:
ARTICLE I
ASSETS TO BE PURCHASED
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SECTION 1.1. DESCRIPTION OF PURCHASED ASSETS. Upon the terms and subject
to the conditions herein expressed, Seller agrees to sell, convey, transfer,
assign, set over and deliver to Buyer on the Closing Date, effective as of the
Effective Time (as said terms are defined in Section 4.3 hereof), the following
assets of the Business then owned or operated by Seller and necessary for the
conduct of the Business as it has been and is currently being conducted, free
and clear of any and all encumbrances, other than as set forth herein:
(a) all machinery, equipment, tools, motor vehicles, trucks, front-
end loaders and other rolling stock, computers, terminals, computer
equipment, office equipment, furniture, business machines, telephones and
telephone systems, accessories and other tangible assets used in the
Business and located at the Bellwood Quarry and the Rockmart Quarry (the
Bellwood Quarry and the Rockmart Quarry being sometimes hereinafter
collectively referred to as the "Facilities") as of the Effective Time,
together with any and all assignable warranties of third parties with
respect thereto, all as more particularly set forth in Exhibit 1.1(a)
hereto (collectively, the "Machinery and Equipment");
(b) all inventory of construction aggregate, shot rock and any other
aggregate or materials other than the Recycled Asphalt Pavement (as
hereinafter defined) located at the Facilities on the Closing Date
(collectively, the "Aggregate Inventory"); provided, however, that the
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purchase price for the Aggregate Inventory shall be separately determined
as more fully set forth in Article II below;
(c) subject to any required consents of such employees, all personnel
records of employees of Seller whose employment with Seller will be
terminated and who are hired by Buyer as a result of the transaction; all
marketing studies, customer lists, customer files, supplier files, sales
agent and manufacturers' representatives files, credit files, credit data,
appraisals, valuations, and consulting studies and all other records and
reports relating to the assets purchased by Buyer; all printed and other
advertising, sales and promotional materials, and catalogues and supplies;
and all computer programs, computer software, computer manuals, flowcharts,
printouts, data files, program documentation and all other materials of
Seller which relate to the Business and all copies of each thereof
(collectively, the "Files and Records");
(d) (i) all fee simple interests of Seller in the real property more
particularly described on Exhibit 1.1(d)(i) hereto, together with the
buildings, fixtures, structures, parking areas, landscaping, elevators,
HVAC, plumbing, electrical, drainage, security, life safety and fire alarm
systems (and their component parts), and other improvements located
thereon, and together with all
of Seller's right, title and interest in and to all utility reservations,
rights of way, strips and gores of land, uses, rights, licenses, easements,
privileges, hereditaments, tenements, reversions, remainders, and
appurtenances in any way belonging, remaining or appertaining thereto and
any and all assignable warranties of third parties with respect thereto
(collectively, the "Real Property"); (ii) approximately eleven (11) acres
of real property presently owned by the City of Atlanta Housing Authority
and located adjacent to the Bellwood Quarry (the "Additional Property"),
but only if the same is acquired by Seller prior the Closing Date and Buyer
elects to purchase the Additional Property hereunder; (iii) all leasehold
interests of Seller, as tenant or lessee, under the leases described in
Exhibit 1.1(d)(iii) hereto, together with the buildings, fixtures,
structures, parking areas, landscaping, elevators, HVAC, plumbing,
electrical, drainage, security, life safety and fire alarm systems (and
their component parts), and other improvements located thereon, and
together with all of Seller's right, title and interest in and to all
utility reservations, rights of way, strips and gores of land, uses,
rights, licenses, easements, privileges, hereditaments, tenements,
reversions, remainders, and appurtenances in any way belonging, remaining
or appertaining thereto and any and all prepaid rent and assignable
warranties of third parties with respect thereto (collectively, the
"Leasehold Property") (the Real Property, the Additional Property and the
Leasehold Property are sometimes hereinafter collectively referred to as
the "Property");
(e) all interests of Seller under the contracts, commitments,
arrangements, license agreements, purchase and sales orders, leases,
guarantees, warranties, service contracts and other agreements described in
Exhibit 1.1(e) hereto (collectively, the "Contracts");
(f) all governmental and other approvals, orders, licenses, permits,
authorizations and certifications relating to the Business which may be
transferred to Buyer and which are set forth on Exhibit 1.1(f) hereto
(collectively, the "Permits");
(g) any insurance proceeds paid after the Effective Time or payable
to Seller pursuant to any contract of insurance as a result of damage to or
loss of any of the assets owned or operated by Seller that are to be, or in
the absence of loss would otherwise have been, sold to Buyer hereunder, or
damage or loss with respect to or interruption of the operation of the
Business, the purpose of this provision being to assure that Buyer receives
the insurance proceeds otherwise payable to Seller intended to make the
Seller whole on account of any damage or loss to the assets being purchased
by Buyer or damage or loss to or interruption of the operations of the
Business subsequent to the Effective Time (collectively, the "Insurance
Proceeds");
(h) all operating supplies not identified in Section 1.1(i),
including, without limitation, those necessary or useful in connection with
the operation and
maintenance of the Machinery and Equipment, and replacement and spare
parts, subject to adjustment at Closing as hereinafter provided
(collectively, the "Operating Parts and Supplies");
(i) all stationery and other imprinted material and office supplies,
catalogues, circulars, advertising material, business records (or copies
thereof) which are related to the Business, the right to receive mail and
other communications and shipments of merchandise addressed to Seller and
related to the Business, and the rights to Seller's telephone numbers
(collectively, the "Office Supplies");
(j) all accounts receivable as shown on the books and records held by
the Business on the Effective Date, together with all documentation
relating thereto, subject to adjustment at Closing as hereinafter provided
(collectively, the "Accounts Receivable");
(k) all of Seller's rights in and to: patents, designs, art work,
designs-in progress, formulations, know-how, prototypes, inventions,
trademarks, trade names, trade styles, service marks and copyrights used by
Seller in connection with the Business, except the names "X.X. Xxxxxxxx",
"Xxxxxxxx" or "CWM"; all registrations and applications therefor, both
registered and unregistered, foreign and domestic; all trade secrets or
processes used by Seller in connection with the Business; all computer
software (including documentation and related object and, if applicable,
source codes) owned by Seller; and all confidential or proprietary
information that are either (A) owned by Seller, or (B) as to which Seller
has rights as licensee, constituting all of the intellectual property of
Seller used in the Business and which does not relate solely to the
Retained Assets (collectively, the "Intellectual Property"); and
(l) except for the Retained Assets (as hereinafter defined), all
other assets or interests to which Seller has any right by ownership, use
or otherwise, or in which Seller has a conveyable or assignable interest on
the Closing Date and which relate to the Business, and without which the
Business could not be operated consistent with current and past practice
(collectively, the "Other Assets").
The Machinery and Equipment, the Aggregate Inventory, the Files and
Records, the Real Property, the Additional Property (if applicable), the
Leasehold Property, the Contracts, the Permits, the Insurance Proceeds, the
Operating Parts and Supplies, the Office Supplies, the Accounts Receivable, the
Intellectual Property and the Other Assets to be so sold, conveyed, transferred,
assigned, set over and delivered to Buyer on the Closing Date are sometimes
hereinafter collectively referred to as the "Purchased Assets".
SECTION 1.2. RETAINED ASSETS. Seller shall retain on the Closing Date
only the following assets used in the conduct of the Business (collectively, the
"Retained Assets"):
(a) all cash on hand and in banks at the Effective Time;
(b) the assets of any Employee Benefit Plan (as hereinafter defined)
maintained by or covering any employees of Seller or to which Seller has
made any contribution;
(c) any rights or benefits which accrue or will accrue to Seller or
the Shareholders under this Agreement;
(d) any rights to any of Seller's or any of the Shareholder's claims
for any federal, state, local, or foreign tax refund;
(e) all claims and causes of action of every kind and description
which Seller or any of the Shareholders may have against any person arising
out of, or relating to, the Business or any item included within the
definition of Purchased Assets (except any claims under the warranties
being transferred to Buyer as contemplated by Section 1.1(a));
(f) all of Seller's rights in, to and under the Permits, to the
extent that the same are not transferable without the consent of another
person and such consent has not been obtained prior to or following the
Closing;
(g) all corporate names, tradenames, accounting records, tax returns,
minute books, stock record books and other corporate governance records;
(h) other than prepaid rent relating to the Leased Property, all
deposits, prepaid advertising, other prepaid items and deferred charges;
(i) all notes receivable, commissions receivable, deposits, advances
and other receivables, not including the Accounts Receivable; and
(j) up to approximately 100,000 tons of recycled asphalt pavement
(collectively, the "Recycled Asphalt Pavement"), such Recycled Asphalt
Pavement to be removed by Seller within two (2) years following the
Closing.
Furthermore, Buyer is not assuming any liabilities or obligations of Seller
except as expressly set forth, and only to the extent described, in Article III
below.
ARTICLE II
PURCHASE PRICE OF THE PURCHASED ASSETS
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SECTION 2.1. PURCHASE PRICE. The purchase price of the Purchased Assets,
other than the Aggregate Inventory, the Operating Parts and Supplies, the
Additional Property
and the Accounts Receivable, shall be equal to Twenty-Three Million Eight
Hundred Thousand and 00/100 Dollars ($23,800,000.00), to be paid to Seller in
shares of Buyer's common stock, $1.00 par value ("Buyer's Common Stock"), as
hereinafter provided, at the Closing, subject to the following adjustments.
(a) The amount of the Aggregate Inventory shall be determined by the
parties by a ground survey to be conducted prior to the Closing Date. That
amount shall be adjusted for all sales and increase in production of the
Aggregate Inventory made by Seller subsequent to the survey but prior to the
Effective Time. Buyer shall pay Seller, in shares of Buyer's Common Stock, as
hereinafter provided, at the Closing for all of the Aggregate Inventory, as
follows: Buyer will pay the equivalent of $4.00 per ton for all commercially-
saleable, processed inventory of construction aggregate stockpiled at the
Facilities, and the equivalent of $2.00 per ton for the agreed-upon volume of
shot rock which is accessible and ready for processing in the primary circuits
of the plants located at the Facilities. The term "commercially-saleable" shall
mean no more than the average annual number of tons (averaged over the three
(3)-calendar year period ending on December 31, 1996) of each size and type of
processed construction aggregate (other than soil aggregate base) meeting
recognized specifications which were sold from the Bellwood Quarry and the
Rockmart Quarry.
(b) Additionally, not more than thirty (30) days prior to Closing Date,
the parties shall conduct an inventory of the Operating Parts and Supplies, and
at the Closing, Buyer shall pay Seller, in shares of Buyer's Common Stock, as
hereinafter provided, the value in excess of book value for the inventory of the
Operating Parts and Supplies, to be determined by a joint evaluation of the
Operating Parts and Supplies prior to Closing.
(c) Buyer shall also pay Seller, in Buyer's Common Stock, as hereinafter
provided, the face amount of the Accounts Receivable as of the Closing Date;
provided, however, that the Shareholders shall be obligated to repurchase from
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Buyer, at the face amount thereof, in cash or, at the Shareholders' option, in
Buyer's Common Stock, valued at the Base Period Trading Price described in
Section 2.2 (except that the period of twenty (20) consecutive trading days in
the definition of "Base Period Trading Price" will end on the trading day that
is the business day prior to the date of such repurchase, rather than the
Closing Date, and there shall be no minimum or maximum price per share of
Buyer's Common Stock), any of the Accounts Receivable which have not been
collected by Buyer within one hundred twenty (120) days of the Closing Date, as
long as Buyer has applied the cash received by Buyer from the customers of the
Business after the Closing Date first to the appropriate Accounts Receivable.
(d) In the event that Seller acquires the Additional Property prior to the
Closing Date and Buyer elects to purchase the same hereunder, the Additional
Property shall be included in the Purchased Assets and the purchase price set
forth above shall be increased by Seller's acquisition cost of the Additional
Property and related expenses, including, but not limited to, survey fees,
title, insurance and title examination fees,
transfer tax, recording costs and environmental surveys, payable in Buyer's
Common Stock as hereinafter provided.
(e) Finally, in consideration of Buyer's assumption of Seller's royalty
liability to Xxxxxx County, Georgia under the Bellwood Quarry Lease (as defined
in Exhibit 1.1(d)(iii) hereto) as of the Closing Date, but provided that X.X.
Xxxxxxxx Contracting Co., Inc., a Georgia corporation affiliated with Seller
("Contracting"), enters into a mutually-acceptable asphalt supply agreement (the
"Asphalt Supply Agreement") with Buyer at the Closing, the purchase price
payable hereunder shall be reduced by an amount equal to $4.00 per ton
multiplied by the number of tons of aggregate for which Buyer will be liable as
of the Closing Date to Xxxxxx County, Georgia for royalty payments under the
Bellwood Quarry Lease, assuming for the purposes hereof that Xxxxxx County,
Georgia elects to receive the royalty payments solely in granite aggregate. The
Asphalt Supply Agreement shall, at a minimum, provide that, in the event that
Xxxxxx County, Georgia chooses to receive its royalty payments under the
Bellwood Quarry Lease in plant mixed asphalt rather than granite aggregate, and
also in the event that Xxxxxx County, Georgia elects to make outright purchases
of asphalt mix as a customer pursuant to the Bellwood Quarry Lease, Contracting
would agree to supply such asphalt to Buyer at the same price per ton as such
asphalt mix is required to be supplied to Xxxxxx County, Georgia under the terms
of the Bellwood Quarry Lease as then in effect, and Contracting would purchase
the aggregate for such asphalt mix from Buyer from time to time.
The sum of all payments made pursuant to this Article II shall hereinafter be
referred to as the "Purchase Price".
SECTION 2.2. FORM OF CONSIDERATION. Buyer shall pay the Purchase Price to
the Shareholders pursuant to Section 2.7, in the form of Buyer's Common Stock,
which shares shall be fully-paid, validly-issued, non-assessable, registered
under the Securities Act of 1933, as amended (the "Securities Act"), and all
other applicable securities laws for resale thereof, and listed on the New York
Stock Exchange pursuant to a registration rights agreement to be agreed between
the parties and reasonably acceptable to Seller and Shareholders. The aggregate
number of shares of Buyer's Common Stock to be delivered to the Shareholders
shall be equal to the Purchase Price divided by the Base Period Trading Price.
As used herein, "Base Period Trading Price" shall mean the average of the daily
closing prices for shares of Buyer's Common Stock for the twenty (20)
consecutive trading days on which such shares are actually traded on the New
York Stock Exchange (as reported by The Wall Street Journal) ending at the close
of trading on the trading day that is the business day immediately prior to the
Closing Date; provided, however, that it is mutually agreed and understood that
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the Base Period Trading Price shall be no less than $52.875, and no more than
$72.875. Notwithstanding the foregoing, no Shareholder shall be entitled to
receive any fractional share of Buyer's Common Stock, and each Shareholder shall
forfeit any such fractional share and shall not be entitled to any consideration
in lieu thereof. The Buyer's Common Stock paid to the Shareholders hereunder is
referred to herein as the "Stock Consideration".
SECTION 2.3. CLOSING DATE PAYMENT. Seller shall deliver to Buyer a
written statement setting forth all of the values comprising the Purchase Price
which are described in Section 2.1 on the Closing Date (the "Pre-Closing
Report"), prepared and stated in accordance with all requirements of this
Article II relating to the Closing Date Report (as hereinafter defined), and
computing the Purchase Price as it would have been due on the Closing Date (the
"Estimated Purchase Price"). On the Closing Date, Buyer shall deliver to the
Shareholders the aggregate number of shares of Buyer's Common Stock equal to the
Estimated Purchase Price shown on the Pre-Closing Report (the "Closing Date
Payment").
SECTION 2.4. CLOSING DATE REPORT. Not later than thirty (30) days after
the Closing Date, Buyer, with full cooperation from the Shareholders and Seller,
shall prepare and deliver to the Shareholders a written statement (the "Closing
Date Report") setting forth all of the values comprising the Purchase Price
which are described in Section 2.1 as of the Closing Date.
SECTION 2.5. REVIEW OF THE CLOSING DATE REPORT. Upon receipt of the
Closing Date Report, the Shareholders shall have twenty (20) days in which to
review such Closing Date Report, and during such time period, Seller shall
provide the Shareholders' representative access to such books, records and
employees as he or she shall reasonably request in connection with such review.
The Shareholders' representative, acting on behalf of the Shareholders, may
object to the Closing Date Report by sending a written notice, explaining in
reasonable detail the reason(s) for the objection, to Buyer and Seller within
ten (10) days following the twenty (20)-day review period. Buyer and the
Shareholders' representative shall endeavor, in good faith, to resolve any such
objections and reach agreement on the Closing Date Report. If Buyer and the
Shareholders' representative cannot agree on the Closing Date Report, Buyer and
the Shareholders' representative shall promptly submit the Closing Date Report
to Deloitte & Touche, and such firm shall determine all disputed amounts on the
Closing Date Report in accordance with the provisions of this Agreement. The
determinations made by such accountants shall be final and binding on all
parties, absent manifest error. Buyer, on the one hand, and the Shareholders, on
the other hand, shall each bear one-half (1/2) of the fees and expenses of
Deloitte & Touche acting hereunder, but the fees and expenses of any other
accountants will be borne by the party retaining such accountants. If Buyer does
not receive a written objection to the Closing Date Report from the
Shareholders' representative within the ten (10) days following the twenty (20)-
day review period, the Closing Date Report shall be deemed accepted by all of
the Shareholders.
SECTION 2.6. FINAL PURCHASE PRICE. In the event that the Purchase Price
based on the Closing Date Report, as finally resolved as provided in Section
2.5, exceeds the Closing Date Payment, Buyer will pay the excess by delivering
to the Shareholders the appropriate number of shares of Buyer's Common Stock,
determined by dividing the excess amount by the Base Period Trading Price. In
the event that the Purchase Price based on the Closing Date Report, as finally
resolved as provided in Section 2.5, is less than the Closing Date Payment, the
Shareholders shall return to Buyer that number of
shares of Buyer's Common Stock equal to the difference, determined by using the
Base Period Trading Price, except that, with respect to the amount owed by each
of the Shareholders hereunder, any fractional shares comprising such amount
shall be forfeited by Buyer, and Buyer shall not be entitled to any
consideration in lieu thereof.
SECTION 2.7. LIQUIDATION OF SELLER; PRO RATA PAYMENTS. The parties hereto
agree and acknowledge that, prior to the Closing, Seller will adopt a Plan of
Liquidation and Dissolution (the "Plan of Liquidation") substantially in the
form attached hereto as Exhibit 2.7 and that, pursuant to the Plan of
Liquidation, the Shareholders shall receive all of Seller's assets as of the
date of Seller's liquidation and dissolution, including any rights it may have
under this Agreement. The parties hereto further agree and acknowledge that, as
an integral part of carrying out the terms of the Plan of Liquidation, the Stock
Consideration shall be issued to the Shareholders as consideration to Seller for
the Purchased Assets. All Stock Consideration issued to the Shareholders shall
be issued in pro rata amounts to each Shareholder in accordance with each
Shareholder's pro rata ownership of Seller's capital stock as reflected on
Exhibit A.
SECTION 2.8. PRORATIONS AND CERTAIN PAYMENTS. Prorations relating to the
Business and the Purchased Assets (including, but not limited to, utility bills
and personal property, real estate, occupancy and other similar property taxes)
will be made as mutually agreed to by the parties prior to the Closing, with
Seller liable to the extent such items relate to any time period prior to
Closing.
SECTION 2.9. TRANSFER EXPENSES. Seller and the Shareholders shall pay any
sales and use, transfer or recording, documentary or other taxes or charges
levied on the transfer of the Purchased Assets. The Aggregate Inventory
purchased hereunder shall be claimed as exempt from sales or use tax by Buyer,
and Buyer shall furnish to Seller at the Closing the sales tax exemption
certificates covering the Aggregate Inventory.
ARTICLE III
ASSUMPTION OF CERTAIN LIABILITIES;
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CERTAIN RELATED TRANSACTIONS
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SECTION 3.1. ASSUMPTION OF CERTAIN LIABILITIES. On the Closing Date,
Buyer shall not be obligated to assume, and shall not assume, any of the
liabilities and obligations of Seller, whether existing as of the Effective
Time, or asserted or first arising after the Effective Time and relating to
events that occurred before the Effective Time, or otherwise, which liabilities
and obligations Seller agrees to pay and discharge (collectively, the "Excluded
Liabilities"), except that Buyer shall assume and agree to pay, perform and
discharge the following liabilities and obligations of Seller as of the
Effective Time, which shall be assumed by Buyer on the Closing Date as of the
Effective Time:
(a) the future obligations of Seller under the Contracts and the
Permits;
(b) except as provided to the contrary in Sections 2.1(e) and 11.2
and the Assignment and Assumption Agreement, the future obligations of
Seller with respect to the Real Property, the Additional Property (if
applicable) and the Leasehold Property, including Seller's obligations
under the Bellwood Quarry Lease and the Rockmart Quarry Lease, including
Environmental Liability; and
(c) subject to Seller's delivery of the Asphalt Supply Agreement in
the form contemplated by Section 2.1(e), Seller's liability to Xxxxxx
County, Georgia for royalty payments pursuant to the Bellwood Quarry Lease.
Anything to the contrary in this Agreement or otherwise notwithstanding,
Buyer shall not assume, and shall have no liability with respect, to any
liabilities or obligations of Seller which are not expressly assumed by Buyer
pursuant to this Article III, including, without limitation, any of the
following items, each of which items shall constitute an Excluded Liability
hereunder:
(i) any liability or obligation arising out of any Employee Benefit
Plan (as hereinafter defined) maintained by or covering employees of Seller
or to which Seller has made any contribution or to which Seller could be
subject to any liability;
(ii) any losses, costs, expenses, damages, claims, demands and
judgments of every kind and nature (including the defenses thereof and
reasonable attorneys' and other professional fees) related to, arising out
of, or in connection with Seller's failure to comply with any bulk sales or
transfer act or any similar statute as enacted in any jurisdiction,
domestic or foreign;
(iii) any liability or obligation arising out of any breach by Seller
or any of the Shareholders prior to the Effective Time of any provision of
any contract to which Seller or any of the Shareholders is a party and any
liability or obligation of Seller related to the performance required under
the Contracts and the Permits before the Effective Time;
(iv) any liability of Seller or any of the Shareholders with respect
to any claim or cause of action, regardless of when made or asserted, which
arises (A) out of or in connection with the business and operations of
Seller prior to the Effective Time, (B) with respect to any product
purchased or manufactured or any service provided by Seller prior to the
Effective Time, including, without limitation, any liability or obligation
of Seller or any of the Shareholders (I) pursuant to any express or implied
representation, warranty, agreement, or guarantee made by Seller, or (II)
imposed by operation of law, in connection with any service performed or
product designed, manufactured, sold or leased by or on behalf of Seller
prior to the Effective Time, including, without limitation, any claim
related to any product delivered in connection with the performance of such
service and any claims seeking to recover for consequential damage, lost
revenue or income,
including pursuant to any doctrine of product liability, or (C) out of or
in connection with the Business and operations of Seller prior to the
Effective Time under any federal, state, or local law, rule, or regulation
relating to (I) taxation, or (II) employment or termination of employment;
(v) any liabilities or obligations of Seller or any of the
Shareholders relating to the Retained Assets;
(vi) any liability or obligation, arising prior to the Effective
Time or as a result of the Closing, to any employee, agent or independent
contractor of Seller, whether or not employed by Buyer after the Closing,
or under any Employee Benefit Plan maintained by or covering employees of
Seller;
(vii) except for the liabilities expressly assumed by Buyer
hereunder, any liability of Seller or any of the Shareholders existing at
the Effective Time;
(viii) any liability or obligation of Seller or any of the
Shareholders arising or incurred in connection with the negotiation,
preparation and execution of this Agreement and the consummation of the
transactions contemplated hereby, including, without limitation, fees and
expenses of their respective counsel, accountants and other experts;
(ix) any liability or obligation of Seller or any of the
Shareholders for federal, state, county, local, foreign and other taxes,
assessments, charges, fees, and impositions, including interest and
penalties thereon or with respect thereto, whether disputed or not
(collectively, "Taxes"), including any liabilities or obligations of Seller
or any of the Shareholders relating to sales and use, transfer,
documentary, income or other Taxes levied on the transfer of the Purchased
Assets; and
(x) all wages, commissions, vacation, holiday, workers'
compensation and sick pay obligations of Seller with respect to its
employees incurred or accrued through the Effective Time and all bonuses
and fringe benefits as to such employees incurred or accrued through the
Effective Time, and all severance pay obligations of Seller to employees
resulting from Seller's consummation of the transactions contemplated
hereby.
SECTION 3.2. ASSIGNMENT OF CONTRACT RIGHTS. In connection with the sale
and transfer of the Purchased Assets, and upon the terms and subject to the
conditions herein expressed, Seller will assign, or cause to be assigned, to
Buyer, at the Closing, all of Seller's rights, title and interest in and to the
Contracts and the Permits to be assumed by Buyer hereunder.
SECTION 3.3. EXECUTION OF ASSIGNMENT AND ASSUMPTION AGREEMENT. In
connection with the sale and transfer of the Purchased Assets and the assumption
of the
liabilities to be assumed by Buyer pursuant to Section 3.1 of this Agreement,
Seller and Buyer shall as of the Closing execute and deliver the Assignment and
Assumption Agreement (the "Assignment and Assumption Agreement") in the form
attached hereto as Exhibit 3.3.
SECTION 3.4. EXECUTION OF XXXX OF SALE. In connection with the sale and
transfer of the Purchased Assets, Seller shall as of the Closing execute and
deliver a Xxxx of Sale (the "Xxxx of Sale") in the form attached hereto as
Exhibit 3.4.
SECTION 3.5. AGREEMENT REGARDING CEMENT KILN FEEDSTOCK. Buyer and the
Shareholders shall also enter into an agreement (the "Feedstock Agreement") on
the Closing Date in substantially the form of Exhibit 3.5 hereto.
ARTICLE IV
THE CLOSING
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SECTION 4.1. THE CLOSING. The closing (the "Closing") of the transactions
contemplated hereby shall take place at the offices of Xxxxxx & Bird LLP, One
Atlantic Center, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000 at
10:00 A.M. local time on the next business day which shall be at least ten days
after all conditions to the Closing have been satisfied or waived, or at such
other place and/or on such other date and at such other time as may be agreed by
Seller and Buyer, but in no event shall the Closing Date be later than December
31, 1997.
SECTION 4.2. CHANGES. Agreements to change or extend times and places set
forth in Section 4.1 hereof may be made by an instrument or instruments in
writing signed by an officer of Buyer and an officer of Seller.
SECTION 4.3. CLOSING DATE; EFFECTIVE TIME. For purposes of this
Agreement, the term "Closing Date" shall mean the date on which the closing
shall occur. For purposes of this Agreement, the term "Effective Time" shall
mean the time of close of business of the facilities of Seller on the Closing
Date.
ARTICLE V
ACTIONS AND DELIVERIES AT OR PRIOR TO THE CLOSING
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SECTION 5.1. DELIVERIES BY SELLER. At the Closing, on the Closing Date,
Seller shall execute and/or deliver, or cause to be executed and/or delivered,
to Buyer, in addition to all other items specified elsewhere in this Agreement,
the following:
(a) such instruments of sale, conveyance, transfer, assignment,
endorsement, direction or authorization as will be sufficient or requisite,
in the opinion of Buyer and its counsel, to vest in Buyer, its successors
and assigns, all
right, title and interest (which title and interest shall be good and
merchantable except to the extent disclosed herein or in any Exhibit
hereto), in and to the Purchased Assets, free and clear of all
encumbrances, other than the Permitted Encumbrances (as hereinafter
defined), including, but not limited to, limited warranty deeds to the Real
Property and, if applicable, the Additional Property, assignments of
Seller's interests as tenant or lessee with respect to the Leasehold
Property (with any required consents of the landlords thereunder), and the
Title Policy;
(b) such assignments of the Contracts and the Permits referred to in
Sections 1.l(e) and 1.1(f) hereof as will be sufficient or requisite, in
the opinion of Buyer and its counsel, to vest in Buyer all of Seller's
rights, powers and privileges thereunder;
(c) any necessary consents to assignment of the Contracts and the
Permits;
(d) the Assignment and Assumption Agreement and the separate
assignment agreements for the Bellwood Quarry Lease and the Rockmart Quarry
Lease, together with Consents to Assignment executed by the Landlords under
each such Lease;
(e) the Asphalt Supply Agreement;
(f) the Xxxx of Sale;
(g) the Feedstock Agreement;
(h) the Non-Competition Agreement (as described in Section 7.1
hereof);
(i) the Asphalt Plant Site License (as described in Section 7.5
hereof);
(j) all books, records, files and other documents evidencing title,
relating to the Purchased Assets and the conduct of the Business;
(k) the written opinion of counsel to Seller, dated as of the Closing
Date, as set forth in Section 12.5 below;
(l) the officer's certificate referred to in Section 12.1 below;
(m) resolutions of the Board of Directors and shareholders of Seller,
certified by the Secretary of Seller as of the Closing Date, approving this
Agreement and the transactions contemplated hereby;
(n) certificates issued by the Secretary of State of Georgia,
certifying that Seller is a corporation in good standing under the laws of
the State of Georgia;
(o) an officer's certificate from a duly-authorized officer of
Seller, setting forth Seller's liability to Xxxxxx County, Georgia for
royalty payments under the Bellwood Quarry Lease as of the Closing Date,
together with a description of the data and methodology used in computing
the same;
(p) Seller shall deliver certificates, to the extent that such
certificates are obtainable, from the applicable revenue authority of the
states in which Seller conducts business stating that no sales, use, or
withholding taxes are due relating to Seller's business or assets; and
(q) such other documents as may be reasonably requested by Buyer.
SECTION 5.2. DELIVERIES BY BUYER. At the Closing, on the Closing Date,
Buyer shall execute and/or deliver to Seller the following:
(a) the Purchase Price;
(b) the Assignment and Assumption Agreement and the separate
assignment agreements for the Bellwood Quarry Lease and the Rockmart Quarry
Lease;
(c) the Asphalt Supply Agreement;
(d) the Feedstock Agreement;
(e) the Non-Competition Agreement;
(f) the Asphalt Plant Site License;
(g) the written opinion of Buyer's legal department, dated as of the
Closing Date, as set forth in Section 13.4 below;
(h) the officer's certificate referred to in Section 13. 1 below;
(i) a certificate issued by the Secretary of State of New Jersey
certifying that Buyer is a corporation in good standing under the laws of
the State of New Jersey;
(j) the sales tax exemption certificates contemplated by Section 2.9;
and
(k) such other documents as may be reasonably requested by Seller.
SECTION 5.3. PROVISIONS RELATING TO THE REAL PROPERTY, THE ADDITIONAL
PROPERTY AND THE LEASEHOLD PROPERTY. (a) Not less than forty (40) days after the
date hereof, Buyer will obtain a current survey of the Real Property, the
Additional Property and the Leasehold Property, certified by a surveyor
registered under the laws of the State of Georgia (the "Survey"). Buyer shall
bear the cost of the Survey.
(b) In addition, not less than forty (40) days after Seller's execution
and delivery of the extension of the Bellwood Quarry Lease as required by
Section 12.10, Buyer shall obtain a binding and enforceable title commitment
(the "Commitment") from a title company acceptable to Buyer (the "Title
Company"), for the issuance of a title policy of title insurance (the "Title
Policy") to insure title to the Real Property, the Additional Property and
Seller's leasehold interests in the Leasehold Property in Buyer, subject only to
(i) liens for Taxes, assessments, both general and special, and other
governmental charges which are not due and payable as of the Closing Date (other
than Taxes arising out of the transaction contemplated hereby, which shall be
paid by Seller pursuant to Section 2.9); (ii) all building codes and zoning
ordinances and other laws heretofore, now or hereafter enacted, made or issued
by any governmental authority affecting the Business; (iii) all electric, power,
telephone, gas, sanitary sewer, storm sewer, water and other utility lines,
pipelines, service lines and facilities of any nature now located on, over or
under the Real Property, the Leasehold Property, and, if applicable, the
Additional Property, and all licenses, easements, rights-of-way and other
agreements relating thereto; (iv) all existing public and private roads and
streets (whether dedicated or undedicated), and all railroad lines and railroad
rights-of-way affecting the Real Property, the Leasehold Property, and, if
applicable, the Additional Property; and (v) all matters waived by Buyer
pursuant to the provisions of Section 5.3(c)(ii) (collectively, the "Permitted
Encumbrances"). Buyer shall be solely responsible for the cost of the
Commitment.
(c) In the event that the Commitment or the Survey reveal any encumbrance
in or upon any portion of the Real Property, the Additional Property or the
Leasehold Property or any encroachment of an improvement on the Property
necessary to the operation of the Business as presently conducted on any
adjoining property, in either case which is unacceptable to Buyer (collectively,
the "Unacceptable Encumbrances"), with the exception of the Permitted
Encumbrances, Buyer shall, within ten (10) days following receipt of the
Commitment (or the reissuance thereof to incorporate any information revealed by
the Survey), deliver to Seller written notification of each Unacceptable
Encumbrance. Within the same time period, Buyer shall give Seller notice of
Buyer's willingness to purchase the Additional Property, and should Buyer elect
to do so, the Additional Property, if acquired by Seller, shall become part of
the Purchased Assets hereunder. On or before the Closing Date, Seller shall be
required to remove all Unacceptable Encumbrances in the nature of liens,
security titles and security interests which may be removed or released by the
payment of money (collectively, the "Monetary Encumbrances"). If Seller is
unable to cause the removal of all Unacceptable Encumbrances or arrange to
insure or bond over, to the reasonable satisfaction of Buyer,
such Unacceptable Encumbrances, prior to the scheduled Closing Date, Buyer may
exercise any of the following options:
(i) postpone the closing for an additional period of time as Buyer
may deem appropriate, but no longer than sixty (60) days, in order to allow
removal of any such Unacceptable Encumbrance;
(ii) waive the removal of any such Unacceptable Encumbrance as a
condition to closing, in which event such Unacceptable Encumbrance shall be
deemed an additional Permitted Encumbrance hereunder; or
(iii) terminate this Agreement, in which case Buyer, Seller and the
Shareholders shall have no further obligations hereunder, except those
which expressly survive any such termination;
provided, however, that, notwithstanding the foregoing, Seller's failure to
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cause the removal of the Monetary Encumbrances shall be a material breach of
covenant pursuant to Section 15.1(a)(iii) and, in addition to the options set
forth above, Buyer shall be entitled to exercise the rights and remedies set
forth in Section 15.1. Any encumbrances disclosed by the Commitment and/or the
Survey which are not objected to in writing shall be deemed additional Permitted
Encumbrances hereunder.
(d) Notwithstanding anything in this Section 5.3 to the contrary, Buyer
shall have the right to notify Seller of any title or survey matters (other than
Permitted Encumbrances) which come into existence after the date of the
Commitment with respect to title matters, and the date of the Survey with
respect to survey matters, but prior to the Closing Date, whereupon the rights,
duties and obligations of Buyer and Seller shall be as set forth in this Section
5.3.
(e) In accordance with Section 1445 and Section 897 of the Code and
O.C.G.A. ? 48-7-128, Seller shall provide to Buyer a certificate reasonably
acceptable to Buyer that Seller is not a foreign person thereunder, and a
certificate indicating whether Seller is a resident of the State of Georgia.
Without either of such certificates, Buyer shall withhold as required by law.
(f) At Closing, Buyer shall obtain a Title Policy covering the Real
Property, the Additional Property (if applicable) and the Leasehold Property.
Buyer shall be solely responsible for the cost of obtaining the Title Policy.
The Title Policy shall be issued by the Title Company at its regularly scheduled
rates and shall insure Buyer against loss on account of any defect or
encumbrance, with the exception of the Permitted Encumbrances. The Title Policy
and the legal description of the Real Property, the Additional Property (if
applicable) and the Leasehold Property shall be based upon the Survey. The Title
Policy shall insure Buyer's interests in the Real Property, the Additional
Property (if applicable) and the Leasehold Property in an amount as Buyer, in
its sole discretion, shall deem appropriate.
SECTION 5.4. PROVISIONS RELATING TO MACHINERY AND EQUIPMENT. Not more
than thirty (30) or less than fifteen (15) days prior to the Closing Date (the
"Inspection Date"), Seller's and Buyer's respective representatives will conduct
an inspection of the Machinery and Equipment to determine if it is in the
operating condition represented in Section 9.5. Within five (5) business days
after the Inspection Date, Buyer shall give Seller a written list of any items
of the Machinery and Equipment which it does not consider to be in such
operating condition. Seller shall put the Machinery and Equipment in such
operating condition and repair to Buyer's reasonable satisfaction. At the
Closing Date, the Seller will deliver the Machinery and Equipment in
substantially the same operating condition as it was on the Inspection Date,
ordinary wear and tear excepted, or as repaired to Buyer's reasonable
satisfaction.
SECTION 5.5. EMINENT DOMAIN. If, after the date hereof and prior to the
Closing, Seller receives notice of the commencement or threatened commencement
of eminent domain or other like proceedings against the Real Property, the
Additional Property (if applicable) or the Leasehold Property, or any portion
thereof, Seller shall immediately notify Buyer, and Buyer shall elect, within
fourteen (14) days from and after such notice, by written notice to Seller,
either (a) not to close the transactions contemplated hereby, in which event
this Agreement shall terminate and be void and of no further force and effect,
except for any obligations hereunder which expressly survive any such
termination; or (b) to close said transactions in accordance with the terms
hereof but subject to such proceedings, in which event the Purchase Price shall
not be reduced, and Seller shall assign to Buyer Seller's rights in any
condemnation award or proceeds. If Buyer does not make such election within the
aforesaid fourteen (14)-day period, Buyer shall be deemed to have elected to
close the transactions contemplated hereby in accordance with clause (b) of this
Section 5.5.
SECTION 5.6. ENVIRONMENTAL MATTERS.
(a) During the one hundred twenty (120)-day period commencing upon the
date of Seller's execution and delivery of the extension of the Bellwood Quarry
Lease as required by Section 12.10, but in any event commencing no later than
October 15, 1997, Buyer shall have the right to cause environmental audits to be
conducted on the Real Property, the Additional Property and/or the Leasehold
Property (each an "Environmental Audit Report") by environmental engineering
consultants retained and paid for by Buyer (the "Environmental Consultants").
Each Environmental Audit Report shall be completed during the one hundred twenty
(120)-day period contemplated by the preceding sentence and shall include (i) a
statement of all Environmental Matters and Environmental Liabilities (as defined
below), if any, identified by the Environmental Consultant at, on, or under the
Real Property, the Additional Property and/or the Leasehold Property to which
such Environmental Audit Report relates, and (ii) a statement describing
conditions at, on or near the Real Property, the Additional Property and/or the
Leasehold Property which may involve Environmental Liabilities and as to which
the Environmental Consultants recommend monitoring, removal, clean-up,
registration or further assessment activities.
Upon Seller's request, a copy of each such Environmental Audit Report and copies
of all preliminary drafts of any such Environmental Audit Report shall be
furnished promptly to Seller.
(b) Within fifteen (15) days after Buyer's receipt of all Environmental
Audit Reports, Buyer shall (i) notify Seller in writing of any Environmental
Matters and any actual or potential Environmental Liabilities described in such
Environmental Audit Report (collectively, the "Environmental Issues"), and (ii)
notify Seller in writing whether it intends to (A) not close the transactions
contemplated hereby on the Closing Date due to the existence of the
Environmental Issues, in which event this Agreement shall be deemed terminated
by Buyer and all parties hereto shall be released from any further obligations
or liabilities hereunder, except for those which expressly survive any such
termination, (B) not close the transactions on the Closing Date unless Seller
formulates and executes a plan for appropriately addressing Environmental
Liability (but not Environmental Matters) affecting the Purchased Assets, or (C)
close the transactions contemplated hereby on the Closing Date without Seller's
formulation and execution of the plan as contemplated by subparagraph (B), in
which event the transactions shall be closed in accordance with the terms of
this Agreement (without a reduction in the Purchase Price), all breaches of
representations contained in any of the Acquisition Documents (as hereinafter
defined) and caused by the existence of the Environmental Issues shall be deemed
waived by Buyer and Buyer shall rely solely upon the indemnifications provided
in Article XI with regard to Environmental Liability; provided, however, that in
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the event that Buyer exercises the option contained in subparagraph (B) above,
Seller shall be obligated to expend up to $1,000,000.00 to eliminate any
Environmental Liability reflected in the Environmental Audit Reports, and the
date of the Closing shall be extended for up to one hundred eighty (180) days to
allow such remediation, but in the event that the cost of appropriately
addressing such Environmental Liability could reasonably be expected to exceed
$1,000,000.00, Seller may, by written notice to Buyer, terminate this Agreement,
whereupon all parties hereto shall be released from any further obligations or
liabilities hereunder, except for those which expressly survive any such
termination.
(c) As used in this Agreement:
(i) "Environmental Laws" means all laws relating to pollution or
protection of human health or the environment (including, without
limitation, ambient air, surface water, ground water, land surface or
subsurface strata), including, without limitation, the Comprehensive
Environmental Response Compensation and Liability Act, as amended, 42
U.S.C. 9601 et seq. ("CERCLA"), the Resource Conservation and Recovery Act,
-- ---
as amended, 42 U.S.C. 6901 et seq. ("RCRA"), and other laws, regulations,
-- ---
orders, ordinances or rules relating to emissions, discharges, releases or
threatened releases of any Hazardous Substance, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of any Hazardous Substance.
(ii) "Environmental Liability" shall mean any legal liability for, or
any amounts paid for, investigatory costs, clean up costs, governmental
response costs, damages to natural resources or other property, personal
injuries, fines or penalties arising out of, based upon or resulting from
(A) the presence, handling, generation, treatment, storage, disposal,
release or threatened release into the environment of any Hazardous
Substance at any location, or (B) circumstances forming the basis of any
violation of any Environmental Law.
(iii) "Environmental Litigation" means any litigation against Seller,
the Shareholders, the Business or the Purchased Assets (including, without
limitation, notice or other communication, written or oral, by any person
alleging potential liability for investigatory costs, cleanup costs,
private or governmental response or remedial costs, natural resources
damages, property damages, personal injuries, or penalties) arising out of,
based upon, or resulting from (A) any Environmental Matter or (B) any
circumstances or state of facts forming the basis of any liability or
alleged liability under, or violation or alleged violation of, any
Environmental Law.
(iv) "Environmental Matter" means any matter or circumstances related
in any manner whatsoever to (A) the emission, discharge, disposal, release
or threatened release of any Hazardous Substance into the environment, or
(B) the transportation, treatment, storage, recycling or other handling of
any Hazardous Substance, or (C) the placement of structures or materials
into waters of the United States or the State of Georgia, or (D) the
presence of any Hazardous Substance, including, but not limited to,
asbestos, in any building, structure or workplace or on any of the Real
Property, the Additional Property and/or the Leasehold Property, in each
case, as to which no Environmental Liability has yet attached.
(v) "Hazardous Substance" means (A) any hazardous substance,
hazardous material, hazardous waste, regulated substance or toxic substance
(as those terms are defined by any applicable Environmental Laws) and (B)
any chemicals, pollutants, contaminants, petroleum, petroleum products or
oil.
ARTICLE VI
COVENANTS OF BUYER, SELLER AND THE SHAREHOLDERS
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Buyer, Seller and/or each of the Shareholders, as the context may require,
hereby covenants and agrees that, between the date hereof and the Closing Date:
SECTION 6.1. INSPECTION. At all reasonable times, upon Buyer's reasonable
notice to Seller, Seller shall make its books of account and records, and all
market studies and reports, consultant studies and reports (including, but not
limited to, safety, health and environmental reports), agreements, leases,
customer lists, appraisals, valuations, and
other material or information in the possession of Seller relating to the
Business available for examination and inspection by Buyer and its agents. Buyer
shall have the right, at its expense, to audit the books and records of Seller
pertaining to the Business prior to the Closing Date. No such examination,
inspection or audit by Buyer or its agents shall in any way affect, diminish or
terminate any of the representations, warranties or covenants of Seller herein
expressed. Upon Buyer's reasonable notice to Seller, Seller shall also make
Seller's employees available to Buyer and its agents at all reasonable times.
SECTION 6.2 EXPLORATION. At all reasonable times, Seller shall allow
Buyer the right to conduct all studies, tests, surveys, examinations and other
explorations deemed necessary by Buyer, including but not limited to, the right
to explore, core drill upon, and to remove samples of stone and other aggregates
or of soil, water or air from, the Real Property, the Additional Property and
the Leasehold Property; the right to use any equipment necessary for such
purposes; and the right of ingress and egress to and from the Real Property, the
Additional Property and the Leasehold Property in order to carry out such
purposes; provided, however, that such rights shall be exercised in a manner
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designed to minimize to the extent practicable, any inconvenience and damage to
Seller. Buyer shall indemnify and hold Seller harmless from and against any
material property damage (which shall not include reasonable disturbance of
surface vegetation during the course of such exploration) or personal injury
arising out of Buyer's negligent acts or omissions during Buyer's exercise of
its exploration rights hereunder.
SECTION 6.3. CONDUCT OF BUSINESS PRIOR TO CLOSING. From the date hereof
to the Closing Date, and except to the extent that Buyer shall otherwise
consent, Seller and/or Shareholders, as the case may be, shall:
(a) operate the Business in all material respects in the ordinary
course of business or consistent with prudent industry practices;
(b) not sell or otherwise dispose of any real or personal property
or asset that would be a Purchased Asset hereunder, except in the ordinary
course of business; provided that a fixed asset that would be a Purchased
Asset, including, without limitation, the Real Property, the Additional
Property (if applicable) and the Leasehold Property, will not be sold or
otherwise disposed of;
(c) conduct maintenance on the Purchased Assets in the ordinary
course of business and consistent with Seller's practices during the 1995
and 1996 calendar years, and maintain all policies of insurance covering
such Purchased Assets in amounts and on terms substantially equivalent to
those in effect on the date hereof;
(d) comply in all material respects with all laws applicable to the
conduct of Business and the ownership of the Purchased Assets;
(e) consult with Buyer's designated representative regarding
significant operational decisions affecting the Business; and
(f) not consent to, nor acquiesce in, any termination, surrender or
assignment of, or sublease under, any lease or occupancy agreement, written
or oral, affecting all or any portion of the Real Property, the Additional
Property (if applicable) and the Leasehold Property, as of the date hereof,
nor enter into any amendment or modification of any such lease or occupancy
agreement, nor enter into any new lease or occupancy agreement affecting
all or any portion of the Property without, in any such case, the prior
written consent of Buyer, which consent may be withheld, denied or delayed
in Buyer's sole and absolute discretion, for any reason or no reason. Any
such termination, surrender, assignment, subletting, amendment,
modification or new lease or occupancy agreement effected without Buyer's
prior written consent shall be void ab initio and in no way binding upon
-- ------
Buyer.
SECTION 6.4. CONSENTS; HSR ACT. In each case where any of the Contracts,
the Permits or any other items of the Purchased Assets are to be transferred to
Buyer but are either not transferable or assignable to Buyer, or cannot be
purchased or assumed by Buyer pursuant to this Agreement, without the consent of
another party or parties, Seller will, at its expense, obtain, prior to the
Closing Date, all such consents of such other party or parties to the transfer
of the Contracts, the Permits and such other items of the Purchased Assets to
Buyer pursuant to this Agreement; provided that, in any case where required,
--------
Buyer will expressly assume the future obligations of Seller under the same.
Also, each of Seller and Buyer will proceed diligently and in good faith and use
commercially-reasonable efforts to make all filings with and to give all notices
to governmental or regulatory authorities or any other person required of Seller
or Buyer to consummate the transactions contemplated hereby under Section 7A of
the Xxxxxxx Act (Title II of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended) and the rules and regulations promulgated thereunder (the "HSR
Act") and provide such other information and communications to such governmental
or regulatory authorities or other persons as such governmental or regulatory
authorities or other persons may reasonably request in connection therewith and
provide reasonable cooperation to the other in obtaining all consents, approvals
or actions of, making all filings with and giving all notices to governmental or
regulatory authorities. Seller and Buyer shall share the aggregate filing fees
payable pursuant to the HSR Act equally.
SECTION 6.5. EMPLOYEE COMPENSATION, ETC. Except as set forth in Exhibit
6.5, from the date hereof until the Closing Date, Seller will not, without the
prior written consent of Buyer in each instance:
(a) grant or agree to grant any increases in compensation to any
director, officer, employee, consultant or agent except in the ordinary
course of Seller's business and in accordance with past practices; or
(b) grant or agree to grant any bonus or other extraordinary
compensation or payment to any director, officer, employee, consultant or
agent, except in the ordinary course of Seller's business and in accordance
with past practices.
Any amount paid by, or expended by Seller in violation of this Section 6.5
shall be treated as a reduction of the Purchase Price and shall reduce the
amount to be paid by Buyer to Seller at the closing pursuant to Article II
hereof or be otherwise recoverable by Buyer.
SECTION 6.6. NO PUBLIC ANNOUNCEMENT. Prior to the Closing Date, neither
Seller, nor any of the Shareholders, nor Buyer will make any press release or
public announcement with respect to the transactions contemplated by this
Agreement, except to the extent, if any, required by law (and in no event will
any such press release or public announcement be made without at least twenty-
four (24) hours advance notice thereof to the other parties hereto) or except as
expressly agreed to by Seller and Buyer in writing.
SECTION 6.7. NO THIRD-PARTY NEGOTIATIONS. Neither Seller nor any of the
Shareholders shall, prior to January 1, 1998, agree to sell the Purchased Assets
or any portion thereof or interest therein, or any of the capital stock of
Seller, to any third party or parties, or engage in any negotiations with
respect thereto, unless this Agreement has been validly terminated by Seller or
Buyer; provided, however, that if, after September 30, 1997, Seller presents to
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Buyer a proposed extension of the Bellwood Quarry Lease which has been approved
by Xxxxxx County, Georgia which represents Seller's best effort to satisfy
Buyer's condition to closing with respect thereto, if all other conditions to
closing hereunder to be satisfied or met by Seller have been so satisfied or met
and if Buyer then refuses to close within forty-five (45) days thereafter, this
Agreement shall automatically terminate, none of the parties hereto shall have
any further obligations hereunder except those which expressly survive any such
termination and Seller and/or the Shareholders shall thereafter be free to sell
or negotiate to sell any of the Purchased Assets and/or the stock of Seller.
SECTION 6.8. SUPPLEMENTAL DISCLOSURE. Seller and each of the Shareholders
shall have the continuing obligations, up to and including the Closing Date, to
give Buyer prompt written notice of any material liability of any nature,
whether accrued, absolute, contingent or otherwise, which attaches to the
Purchased Assets after the date of this Agreement and is not otherwise disclosed
herein, and to supplement promptly or amend the Exhibits with respect to any
matter hereafter arising or discovered which, if existing and known at the date
of this Agreement, would have been required to be set forth or listed in the
Exhibits; provided, however, that Buyer may unilaterally extend the Closing Date
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if necessary to allow Buyer ten (10) business days to review such supplements
prior to the Closing Date.
SECTION 6.9. DISCHARGE OF LIENS AND ENCUMBRANCES. All liens, claims,
charges, security interests, pledges, assignments, or encumbrances relating to
the Purchased Assets
that are Monetary and not Permitted Encumbrances shall be satisfied, terminated,
discharged or released by Seller or the Shareholders, as the case may be, on or
prior to the Closing Date, and evidence reasonably satisfactory to Buyer and its
counsel of such satisfaction, termination, discharge or release shall be
delivered to Buyer at or prior to the Closing.
ARTICLE VII
POST-CLOSING COVENANTS OF BUYER, SELLER AND THE SHAREHOLDERS
------------------------------------------------------------
Buyer, Seller and/or each of the Shareholders, as the context may require,
hereby covenants and agrees as follows:
SECTION 7.1. NON-COMPETITION AGREEMENT. Buyer, Seller and the
Shareholders shall, as of the Closing Date, execute and deliver a Non-
Competition Agreement in substantially the form as attached hereto as Exhibit
7.1, which agreement shall provide, among other terms, that Seller and the
Shareholders will not compete with Buyer for a period of five (5) years
following the Closing Date within the geographic areas served by the Business.
SECTION 7.2. FURTHER ASSURANCES. Upon the reasonable request of Buyer at
any time and from time to time after the Closing Date, Seller and each of the
Shareholders will forthwith, at its own expense, execute and deliver such
further instruments of assignment, transfer, conveyance, endorsement, direction
or authorization and do all things necessary or proper, as Buyer or its counsel
may reasonably request, which are needed to vest, perfect or confirm, of record
or otherwise, the right, title and interest of Seller, its successors and
assigns, in and to the Purchased Assets and the assignment to, and assumption by
Buyer of the Contracts and the Permits to be assigned to, and assumed by Buyer
pursuant to Section 3.1 hereof or otherwise to carry out the purpose of this
Agreement.
SECTION 7.3. CONFIDENTIALITY. Seller and each of the Shareholders hereby
agrees that, after the Closing Date, it will treat as confidential and will not
use or disclose to others or permit any of their affiliates to use or disclose
to others, any documents, reports or other information concerning the Purchased
Assets, or the Business theretofore conducted by Seller, or concerning Buyer, or
the business, operations or affairs thereof.
SECTION 7.4. AVAILABILITY OF EMPLOYEES AND THE SHAREHOLDERS. Each of
Buyer, Seller and each of the Shareholders, respectively, will, after the
Closing Date, cooperate fully in providing to the others or their designees
information necessary to prosecute or defend any third-party litigation relating
to operation of the Business, as well as endeavor to provide, to the extent
reasonably available, the services of employees and agents of each of Buyer,
Seller and each of the Shareholders, respectively, to participate in the
preparation and prosecution or defense of such litigation, all at no charge to
the party
requesting the same other than direct reasonable out-of-pocket expenses, all of
which such expenses shall be charged to such party.
SECTION 7.5. ASPHALT PLANT SITE LICENSE. Buyer and Seller shall, as of
the Closing Date, execute and deliver an asphalt plant site license (the
"Asphalt Plant Site License") in substantially the form as attached as Exhibit
7.5, which shall provide, among other terms, that Contracting may occupy the
asphalt plant currently located at the Rockmart Quarry for a period of one (1)
year and thereafter from year to year until terminated by Buyer or Seller.
ARTICLE VIII
[Intentionally omitted.]
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE SHAREHOLDERS
-------------------------------------------------------------
Seller and each of the Shareholders, as the context may require, represents
and warrants to and covenants with Buyer and its successors and assigns (which
warranties, representations and covenants, together with the other warranties,
representations and covenants of Seller and the Shareholders set forth in this
Agreement or contained in any exhibit hereto, or in any certificate or other
document required to be delivered to Buyer by Seller or any of the Shareholders
pursuant to this Agreement, shall survive the closing hereof) as follows:
SECTION 9.1. ORGANIZATION, ETC. Seller is a corporation, duly organized,
validly existing and in good standing under the laws of the State of Georgia and
has the corporate power and all licenses, permits, authorizations and approvals
(governmental, corporate or otherwise) necessary to own and operate its
properties and to carry on the Business as it is now being conducted. Seller is
qualified to do business as a foreign corporation in each state in which the
nature of the property owned, used or operated by Seller, or the nature of the
activities conducted by Seller, requires such qualification, except where the
failure to so qualify would not have a material adverse effect on Seller or the
Business.
SECTION 9.2. AUTHORITY. Seller and each of the Shareholders has all
requisite power and authority to enter into this Agreement and the agreements to
be executed by Seller and each such Shareholder in connection herewith
(collectively, this Agreement and such other agreements and the agreements
contemplated by this Agreement to be executed by the such parties shall be
referred to hereinafter as the "Acquisition Documents"), and to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance by Seller and each of the Shareholders of each of the Acquisition
Documents to which it is a party has been duly and validly authorized and
approved by all necessary action on the part of Seller and each such
Shareholder. Each of the Acquisition
Documents to which Seller and each such Shareholder is a party is the legal,
valid, and binding obligation of Seller and each such Shareholder, enforceable
against him, her or it in accordance with its terms, except as enforceability
may be limited by applicable equitable principles (whether applied in a
proceeding at law or in equity) or by bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditors' rights generally, to the
exercise of judicial discretion in accordance with general equitable principles
and to equitable defenses that may be applied to the remedy of specific
performance. The execution and delivery by Seller and each of the Shareholders
of each of the Acquisition Documents to which he, she or it is a party and the
consummation by Seller and each such Shareholder of the transactions
contemplated thereby will not (a) violate the Articles of Incorporation or
Bylaws of Seller, or (b) violate any provisions of law or any order of any court
or any governmental entity to which Seller is subject, or by which Seller, such
Shareholder or the Purchased Assets may be bound.
SECTION 9.3. APPROVAL. Seller, at the time of the Closing, will have
taken all requisite corporate action to approve this Agreement and the
transactions contemplated by this Agreement, and there shall have at the time of
closing been delivered to Buyer certified copies of the resolutions duly adopted
in connection therewith.
SECTION 9.4. GOVERNMENTAL APPROVAL AND CONSENTS.
(a) Seller has obtained, or will obtain by the Closing Date, the Permits,
which are all of the governmental or other approvals, permits, licenses, orders
and authorizations required for the lawful operation of the Business and the
Purchased Assets as conducted on the date of this Agreement. Exhibit 9.4
contains a true and correct list of the Permits.
(b) Except with respect to the HSR Act compliance contemplated by Section
6.4, no consent, approval or authorization of, or declaration, filing or
registration with, any governmental or regulatory authority is required in
connection with the execution, delivery, and performance of this Agreement by
Seller or the consummation by Seller of the transactions contemplated hereby.
SECTION 9.5. MACHINERY AND EQUIPMENT. Each item of the Machinery and
Equipment that is currently used or useful by Seller in connection with the
Business is in satisfactory operating condition and repair (normal wear and tear
in relation to age excepted), is reasonably fit for the purposes for which it is
presently used, and none of the Machinery and Equipment is in need of
maintenance or repairs, except for maintenance and repairs, the cost of which
will not vary materially from Seller's historic patterns during the 1995 and
1996 calendar years. Exhibit 1.1(a) contains a true and complete list and a
description of all of the Machinery and Equipment.
SECTION 9.6. PROPERTY AND IMPROVEMENTS. With respect to the Real
Property, the Additional Property (if applicable) and the Leasehold Property:
(a) to Seller's knowledge, no defect or condition of the Property or
interest of any third party exists which impairs or could impair the
current or continued use of the Property for the conduct of the Business in
any material respect;
(b) the Property, as currently used by Seller, is not in material
violation of any applicable foreign, federal, state or local statute,
ordinance, order, requirement, decree, law, rule or regulation (including
without limitation, building or zoning laws, rules or regulations and
excluding, specifically, environmental laws, rules or regulations)
affecting the Property, and all material licenses, permits and approvals
required in connection therewith have been obtained by Seller and are in
full force and effect;
(c) no actual notice of any violation, possible violation or
threatened violation of any applicable foreign, federal, state or local
statute, law, ordinance, rule, regulation, order, decree or requirement, or
of any covenant, condition, restriction or easement affecting the Property
or with respect to the use or occupancy of the Property, has been given to
Seller by any governmental authority having jurisdiction over the Property
or by any other person entitled to enforce the same;
(d) there is not: (i) to Seller's knowledge, any intended public
improvement which may involve any charge being levied or assessed or which
may result in the creation of any lien upon the Property, (ii) to Seller's
knowledge, any intended or proposed foreign, federal, state or local
statute, ordinance, order, requirement, decree, law or regulation
(including, but not limited to, zoning changes) which may adversely affect
the current use of the Property, (iii) any suit, action, claim or legal,
administrative, arbitration or other proceeding or governmental
investigation pending or, to Seller's knowledge, threatened or contemplated
against or affecting the Property, or (iv) any pending or, to Seller's
knowledge, threatened condemnation or similar proceeding affecting the
Property;
(e) to Seller's knowledge, there are no encroachments onto the
Property of any improvements on any adjoining property which materially
interfere with the conduct of the Business as presently conducted, and no
improvement on the Property necessary to the operation of the Business as
presently conducted encroaches on any adjoining property in any material
way;
(f) Seller is currently materially complying with all covenants,
conditions, restrictions, easements and similar matters of record affecting
the Property, and, to Seller's knowledge, there are no unrecorded private
restrictive covenants affecting the Property;
(g) Except as set forth on Exhibit 1.1(e), there are no leases under
which Seller is the lessor or landlord relating to any of the Property (or
any portion
thereof). Except for Permitted Encumbrances and except as set forth on
Exhibit 1.1(d)(iii), Seller has not entered into any other agreements,
written or oral, granting any other person or entity any rights with
respect to any of the Property; and
(h) access to each parcel of the Property is provided by publicly-
dedicated and maintained streets and roads contiguous to such properties.
SECTION 9.7. GOOD TITLE, ETC. On the Closing Date, Seller will have good
and merchantable title to all of the Purchased Assets other than the Property,
subject to no mortgages, pledges, liens, encumbrances or other charges other
than the Permitted Encumbrances. On the Closing Date, the Purchased Assets to
be conveyed to Buyer shall be free of all mortgages, pledges, liens,
encumbrances or charges of any kind other than the Permitted Encumbrances.
SECTION 9.8. NO VIOLATION OF LAW; NO LITIGATION. Except as disclosed on
Exhibit 9.8, and not including Environmental Matters (which are covered
elsewhere in this Agreement), Seller is not in material violation of any law,
rule, regulation or order of any federal, state, local or foreign governmental
department, agency or instrumentality which is applicable to Seller and/or the
Purchased Assets. Except as disclosed on Exhibit 9.8, and not including
Environmental Matters (which are covered elsewhere in this Agreement), there is
no litigation at law or in equity, no arbitration proceeding and no proceeding
before any commission or other administrative or regulatory authority pending,
or to the knowledge of Seller, threatened against or affecting the Purchased
Assets or the Business or Seller's right to carry on such businesses as
conducted on the date hereof. Seller is not in default with respect to any
order, writ, injunction or decree of any federal, state, local or foreign court,
department, agency or instrumentality. Except as disclosed on Exhibit 9.8, and
not including Environmental Matters (which are covered elsewhere in this
Agreement), Seller is not presently engaged in any legal action to recover
monies due to it or damages sustained by it.
SECTION 9.9. NO ADVERSE CHANGE. Except as otherwise disclosed in this
Agreement, since December 31, 1996, there has been no material adverse change in
the financial condition, assets, liabilities, business (including relations with
employees, dealers, distributors, suppliers and customers) or property of
Seller, the prospects of the Business or the Purchased Assets, and Seller has no
knowledge of any information that any such material adverse change may
reasonably be expected to occur in the foreseeable future.
SECTION 9.10. NO DISPOSITION OF ASSETS, ETC. With respect to the
Business, since December 31, 1996:
(a) Seller has not sold, and will not sell or otherwise dispose of,
without the prior written consent of Buyer, any of the assets identified as
the Purchased Assets hereunder;
(b) Seller has conducted, and will, pending the Closing, conduct the
Business only in the ordinary course of its businesses;
(c) Seller has not made, and will not make, pending the Closing, any
increase in the compensation due to any employee of Seller, nor has it
terminated, nor will it terminate any employees, without the prior written
consent of Buyer, except in the ordinary course of Seller's business and in
accordance with past practices; and
(d) Seller has not, and will not, without the prior written approval
of an officer of Buyer, enter into any contract or make any commitment or
otherwise purchase any item which in accordance with generally accepted
accounting principles would be required to be capitalized on its balance
sheet, except in the ordinary course of Seller's business and in accordance
with past practices.
SECTION 9.11. EMPLOYEES, COMPENSATION, ETC. Exhibit 9.11 contains a
correct and complete list of all employees employed by Seller in the Business as
of the date of this Agreement, their current remuneration, and a general
description of all perquisites and fringe benefits they receive or are eligible
to receive. Except as set forth on Exhibit 9.11 hereto, Seller is not a party
to any agreement relating to the terms and conditions of employment, including
compensation and other benefits, of present and former employees (including
retirees and disabled employees), sales personnel, consultants and other agents
of Seller, and the dependents or beneficiaries of any such persons, either now
or formerly involved in the Business, including, without limitation, collective
bargaining agreements and pension, retirement, bonus, stock option, profit-
sharing, health, disability, life insurance, education or other similar employee
benefit plans or arrangements (whether or not subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") and whether or not currently
or previously maintained by Seller) (each an "Employee Benefit Plan"). None of
the agreements listed on Exhibit 9.11 hereto shall be breached by Seller's
execution, delivery and performance of this Agreement and the transactions
contemplated hereby. No such agreements shall:
(a) require Buyer to recognize, bargain, negotiate or deal with any
labor union or to assume any employment, compensation, fringe benefit,
pension, profit-sharing or deferred compensation plan or other Employee
Benefit Plan with respect to any employee or former employee (including,
without limitation, retirees and disabled employees) or the dependent or
beneficiary of any employee or former employee of Seller; or
(b) obligate Buyer in any way to pay for the cost of any post-
retirement health care or life insurance or other similar benefits.
There are no approved, actual or, to the knowledge of Seller, threatened claims
for worker's compensation or any other employment related claim by any present
or former employees, sales personnel, consultants or other agents of Seller
arising out of their
employment with Seller that could result in any liability of Buyer, whether or
not any such employee, salesman, consultant or other agent becomes an employee
of Buyer.
Neither Seller nor any member of a group of trades or businesses under common
control (as defined in Internal Revenue Code Section 414 or ERISA Sections
4001(a)(14) and 4001(b)(1)) with Seller (each an "ERISA Affiliate") have at any
time sponsored, contributed to, or been obligated under Title I or IV of ERISA
to contribute to a "defined benefit plan" (as defined in ERISA Section 3(35)).
Neither Seller nor any ERISA Affiliate have had an "obligation to contribute"
(as defined in ERISA Section 4212) to a "multiemployer plan" (as defined in
ERISA Sections 4001(a)(3) and 3(37)(A)) on or after September 26, 1980.
Seller shall be responsible for complying with the requirements of Internal
Revenue Code Section 4980B and Part 6 of Title I of ERISA for its employees
(including those employees who are hired by Buyer on or after the Closing) and
their "qualified beneficiaries" whose "qualifying event" (as such terms are
defined in Internal Revenue Code Section 4980B) occurs on or prior to the
Closing.
SECTION 9.12. LABOR RELATIONS. Seller is in compliance with all
applicable laws respecting employment and employment practices, terms and
conditions of employment and wages and hours, and has not engaged in any unfair
labor or unfair employment practice. There is no, and during the past two (2)
years, there has not been, any (a) unlawful employment practice discrimination
charge relating to the Business before the Equal Employment Opportunity
Commission ("EEOC") or any EEOC recognized state "referral agency" or any
foreign governmental authority; (b) unfair labor practice charge or complaint
against Seller before the National Labor Relations Board ("NLRB") or any foreign
governmental authority relating to the Business or (c) labor strike, dispute,
picketing, lockout, union organizing activity, union jurisdictional dispute,
organized slowdown, work interruption or work stoppage or, to the knowledge of
Seller, threatened against or involving or affecting the Business. No NLRB
representation question exists respecting any employees of the Business. No
grievance or arbitration proceeding relating to the Business is pending and no
written claim therefore exists. There is no collective bargaining agreement
relating to the Business which is binding upon Seller.
SECTION 9.13. EMPLOYMENT CLAIMS. Except as set forth in Exhibit 9.13,
there are presently no workers compensation claims or employment discrimination
claims pending against Seller with respect to employees of the Business. To
Seller's knowledge, except as described on Exhibit 9.13, with respect to Seller,
there are no pending or threatened claims, investigations, charges, citations,
hearings, consent decrees, or litigation concerning wages, compensation,
bonuses, commissions, awards, or payroll deductions; equal employment or human
rights violations regarding race, color, religion, sex, national origin, age,
handicap, veteran's status, marital status, disability, or any other recognized
class, status, or attribute under any federal, state, local or foreign equal
employment law prohibiting discrimination; representation petitions or unfair
labor practices; grievances or
arbitrations pursuant to current or expired collective bargaining agreements;
occupational safety and health; workers' compensation; wrongful termination,
negligent hiring, invasion of privacy or defamation; immigration or any other
claim based on the employment relationship or termination of the employment
relationship (collectively, "Labor Claims").
SECTION 9.14. CONTRACTS AND COMMITMENTS. Exhibits 1.1(e) and 9.11
together contain a true and complete list and brief description of the
Contracts, which constitute all written or oral contracts, agreements and other
instruments to which Seller is now a party. Seller has in all respects
performed all the obligations required to be performed by it to date and is not
in default or alleged to be in default in any respect under any of the
Contracts, and there exists no event, condition or occurrence which after
notices or lapse of time, or both, would constitute such a default by Seller of
any of the Contracts. Each of the Contracts is in full force and effect in
accordance with its terms. Seller has furnished or made available to Buyer true
and correct copies of all documents described in Exhibits 1.1(d)(iii) and 9.11.
SECTION 9.15. FINANCIAL STATEMENTS. (a) Except as disclosed on the
Accountants' Report attached hereto as Exhibit 9.15, the financial statements of
Seller previously delivered by Seller to Buyer present fairly the financial
position of Seller as of the dates of such financial statements, and cash flow,
the results of the operations, changes in retained earnings and changes in
financial position of Seller for periods then ended, respectively.
(b) Seller has not used any improper accounting practice for the purpose of
incorrectly reflecting on such financial statements or in its books of account,
or for the purpose of not reflecting on such financial statements or in its
books of account, any of its assets, liabilities, revenues or expenses.
SECTION 9.16. NO UNDISCLOSED LIABILITIES. As of the date hereof, Seller
does not have, and as of the Closing Date Seller will not have, any material
liability of any nature, whether accrued, absolute, contingent or otherwise,
relating to the Purchased Assets and not disclosed in this Agreement, the
Exhibits hereto or any certificate, document, instrument, list or information
required to be furnished by Seller pursuant to this Agreement.
SECTION 9.17. TAX MATTERS. For all periods prior to the date of this
Agreement and through the Closing Date:
(a) all federal, state, local and foreign tax returns, or other fiscal
contribution returns, and tax reports required to be filed by Seller have
been, or will be, timely filed with the appropriate governmental agencies
in all jurisdictions in which such returns and reports are required to be
filed and all of the foregoing are true, correct and complete;
(b) all federal, state, local and foreign income, value-added,
profits, franchise, manufacturer's excise, sales, use, occupation,
property, excise, highway
use and other taxes or other fiscal contributions (including interest,
surcharge, fines and penalties) due from Seller have been, or will be,
fully paid or adequate provisions made therefor;
(c) no issues have been raised or proposed with respect to any tax
return or other fiscal contribution returns of Seller;
(d) the Purchased Assets will be transferred free and clear of all
liens, security interests and encumbrances securing any taxes (other than
liens for real estate taxes not yet due and payable), including all
penalties and interest assessed with respect thereto; and
(e) each parcel of the Property is a separate and complete tax parcel
for real estate tax purposes.
SECTION 9.18. EMPLOYEE TAXES, ETC. With respect to the Business of
Seller:
(a) proper and accurate amounts have been, or will be, withheld by
Seller from its employees for all periods prior to the Closing Date in
compliance with the tax withholding provisions of applicable federal,
foreign, state and local laws;
(b) proper and accurate federal, foreign, state and local returns have
been, or will be, filed by Seller for all periods for which returns were
due with respect to employee income tax withholding, social security and
unemployment taxes, and the amounts shown thereon to be due and payable
have been paid in full or adequate provisions therefor included in Seller's
financial statements; and
(c) to the knowledge of Seller, hours worked by and payments made to
the respective employees of Seller have not been in violation of the Fair
Labor Standards Act or any other applicable laws of the United States, any
state, or any other jurisdiction dealing with such matters.
SECTION 9.19. INSURANCE. With respect to the Business, Seller has in
force all policies of insurance described in Exhibit 9.19, which policies
provide adequate insurance with respect to all risks normally insured against by
companies similarly situated, and it will have in force on the Closing Date
policies of insurance of the same character and coverage as those so described
in Exhibit 9.19. Seller will promptly notify Buyer in writing of any changes in
such insurance coverage occurring prior to the Closing. Seller is to be
reimbursed by Buyer at the Closing for any insurance premiums paid by Seller and
referable to periods following the Closing. During the 1995 and 1996 calendar
years, Seller has not been refused any insurance with respect to the Purchased
Assets by any insurance carrier to which it has applied for insurance or with
which it has carried insurance. There are no outstanding requirements or
recommendations by any current insurer or insurance underwriter with respect to
the Purchased Assets which require or
recommend any repairs or other work to be done with respect to any of the
Purchased Assets. Exhibit 9.19 contains a true and correct list of each
insurance policy of Seller related to the Purchased Assets.
SECTION 9.20. OWNERSHIP OF ESSENTIAL ASSETS; PRESENCE OF ESSENTIAL ASSETS.
With respect to the Business, there is no material asset used by Seller in the
conduct of the Business or without which the Business could not be conducted as
presently conducted which is not either owned by Seller or leased to Seller, or
over which Seller has a beneficial interest or a legal right of use, under any
of the Contracts, except as otherwise disclosed in this Agreement. All such
assets owned or used by Seller in the Business are encompassed within the
Purchased Assets, and are on the date hereof, and on the Closing Date will be,
in substantially the same operating condition and repair as on the Inspection
Date, ordinary wear and tear excepted or, if not in such operating condition on
the Inspection Date, then repaired to Buyer's reasonable satisfaction.
SECTION 9.21. ENVIRONMENTAL LAWS AND REGULATIONS. Except as set forth in
Exhibit 9.21:
(a) There is no Environmental Litigation (or, to Seller's knowledge,
any litigation against any person whose liability, or any portion thereof,
for Environmental Matters or under any Environmental Laws Seller or any of
the Shareholders has or may have retained or assumed contractually or by
operation of law) pending or, to Seller's knowledge, threatened with
respect to (i) the ownership, use, condition or operation of the Business
or the Purchased Assets, or (ii) any violation or alleged violation of or
liability or alleged liability under any Environmental Law or any order
related to Environmental Matters. To Seller's knowledge, there have been
no violations of any (A) Environmental Law, or (B) order related to
Environmental Matters, with respect to the ownership, use, condition or
operation of the Business or the Purchased Assets which would have a
material adverse effect on the Business or the Purchased Assets. Except as
disclosed in Exhibit 9.21 to Seller's knowledge, there are no existing
violations of any (I) Environmental Law, or (II) order related to
Environmental Matters, with respect to the ownership, use, condition or
operation of the Business or the Purchased Assets. To Seller's knowledge,
there have been no past actions, activities, circumstances, conditions,
events or incidents, including, without limitation, any Environmental
Matter, which would likely form the basis of any (a) Environmental
Litigation against Seller or any of the Shareholders, or (b) litigation
against any person whose liability (or any portion thereof) for
Environmental Matters or under any Environmental Laws Seller has retained
or assumed contractually or by operation of law which would have a material
adverse effect on the Business or the Purchased Assets. Except as
disclosed in Exhibit 9.21, to Seller's knowledge, there are no present
actions, activities, circumstances, conditions, events or incidents,
including, without limitation, any Environmental Matter, which would likely
form the basis of any (1) Environmental Litigation against Seller or any of
the Shareholders, or (2) litigation against any person
whose liability (or any portion thereof) for Environmental Matters or under
any Environmental Laws Seller has retained or assumed contractually or by
operation of law. Except where any such use complied with applicable
statutes, regulations, ordinances or permits, Seller has not used any of
the Purchased Assets or any part thereof for the handling, treatment,
storage, or disposal of any Hazardous Substances. The disclosure of facts
set forth in Exhibit 9.21 shall not relieve Seller or any of the
Shareholders of any of their obligations under this Agreement, specifically
including, without limitation, the obligation to indemnify Buyer as set
forth in Article XI hereof.
(b) To Seller's knowledge, except as allowed by applicable
environmental statutes, regulations, ordinances or permits, no material
release, discharge, spillage or disposal of any Hazardous Substances has
occurred or is occurring at any of the Property or any part thereof while
or before the Property was owned, leased, operated, or managed, directly or
indirectly, by Seller.
(c) To Seller's knowledge, except as allowed by applicable
environmental statutes, regulations, ordinances or permits, no soil or
water in, under or adjacent to any portion of the Property has been
contaminated by any Hazardous Substance while or before such assets or
premises were owned, leased, operated or managed, directly or indirectly,
by Seller except where any such contamination is not material.
(d) All waste containing any Hazardous Substances generated, used,
handled, stored, treated or disposed of (directly or indirectly) by Seller
has been released or disposed of in material compliance with all applicable
reporting requirements under any Environmental Laws and there is no pending
Environmental Litigation with respect to any such release or disposal.
(e) To Seller's knowledge, all underground tanks and other underground
storage facilities located at any portion of the Property are listed,
together with the capacity and contents of each such tank or facility, in
Exhibit 9.21. To Seller's knowledge, none of such underground tanks or
facilities is leaking or has leaked.
(f) To Seller's knowledge, all hazardous waste has been removed from
the Property.
(g) Seller has complied in all material respects with all applicable
reporting requirements under all Environmental Laws concerning the disposal
or release of Hazardous Substances and Seller has not made any such reports
concerning any portion of the Property or concerning the operations or
activities of Seller.
(h) To Seller's knowledge, no portion of the Property contains any
friable asbestos-containing materials.
(i) Without limiting the generality of any of the foregoing, (i) all
on-site and off-site locations where Seller has stored, disposed of or
arranged for the disposal of Hazardous Substances where the storage or
disposal of such Hazardous Substances is regulated by Environmental Law are
identified in Exhibit 9.21, and (ii) to Seller's knowledge, no
polychlorinated biphenyls (PCBs) are used or stored on or in any portion of
the Property.
(j) Exhibit 9.21 contains a correct and complete list of all
environmental site assessments and other studies obtained by Seller
relating to the investigation of the possibility of the presence or
existence of any Environmental Matter with respect to Seller, the Business
or the Purchased Assets, and Seller has previously delivered to Buyer, or
provided Buyer an opportunity to review, a correct and complete copy of
each such assessment and study.
SECTION 9.22. NO UNTRUE STATEMENTS. Neither this Agreement, nor any
certificate, exhibit, or other instrument or list or information required to be
furnished by Seller pursuant to this Agreement, contains, or will contain, any
untrue statement of a material fact or omits, or will omit, to state any
material fact necessary in order to make the statements contained herein or
therein, in the light of the circumstances under which they were made, not
misleading.
SECTION 9.23. RELIANCE. All documents, records and other information
attached as Exhibits hereto have been prepared by Seller and furnished to Buyer
or Buyer's representatives by Seller, and fairly, accurately and completely
present (in a manner consistent with prior periods) the matters purported to be
presented therein. Seller acknowledges that such documents were furnished at
the request of Buyer or Buyer's representatives, and that such documents,
records and other information have been relied upon by Buyer or Buyer's
representatives (to the extent of representations and warranties of Seller set
forth in the preceding sentence) as an inducement to the execution and delivery
of this Agreement.
SECTION 9.24. CONFIDENTIAL MATERIAL. Seller will deliver to Buyer on the
Closing Date copies owned or used by Seller of all documents and other materials
(which shall have been previously shared with Buyer) which Seller reasonably
believes to be both confidential and reasonably appropriate for the operation of
the Business conducted by Seller through the use of the Purchased Assets.
SECTION 9.25. NO UNDUE INFLUENCE. Seller has not, directly or indirectly,
made any payments to or entered into any transactions with any person as an
inducement to such person (or to induce such person to influence another person)
to take action deemed to be to the advantage of Seller in such person's official
position with a governmental authority, or in such person's position with any
other business entity, nor has Seller directly or
indirectly made any other payment to any person or entity that was contrary to
any law or regulation of any such governmental authority.
SECTION 9.26. NO MATERIALLY ADVERSE CONTRACTS. Seller has provided to
Buyer true, correct and complete copies of all material contracts related to the
Business and the Purchased Assets which are to be assumed by Buyer pursuant to
this Agreement and might materially and adversely affect the properties or
prospects of or the conduct after the closing by Buyer of the Business. No
commitments for the purchase of raw materials to be assumed by Buyer are in
excess of normal requirements of the Business or at an excessive price.
SECTION 9.27. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS. Each of the
Shareholders represents and warrants to Buyer as of the date hereof and as of
the Closing Date as follows:
(a) Such Shareholder owns of record and has sole voting power over the
shares of capital stock of Seller set forth by such Shareholder's name on
Exhibit A. Such Shareholder has authorized and approved the performance by
Seller of its obligations under this Agreement. All of the information
regarding such Shareholder set forth on Exhibit A is true and accurate.
(b) Such Shareholder has the right, power, legal capacity and
authority to enter into and perform such Shareholder's obligations under
this Agreement. This Agreement is a valid obligation of such Shareholder,
enforceable against such Shareholder in accordance with its terms.
(c) Such Shareholder has carefully read this Agreement and, to the
extent he, she or it believes necessary, has discussed the representations,
warranties and agreements which he, she or it makes by signing this
Agreement with his, her or its counsel and counsel for the Buyer.
(d) Such Shareholder is acquiring the Stock Consideration for his, her
or its own account, with the intention of holding the Stock Consideration
for investment, with no present intention of dividing or allowing others to
participate in this investment or of reselling or otherwise participating,
directly or indirectly, in a distribution of the Stock Consideration.
(e) Such Shareholder is familiar with the business in which Buyer will
be engaged, and based upon his knowledge and experience in financial and
business matters, such Shareholder is familiar with the investments of the
sort which he is undertaking herein; Shareholder is fully aware of the
problems and risks involved in making an investment of this type; and is
capable of evaluating the merits and risks of this transaction.
(f) This investment is in accord with the nature and size of such
Shareholder's present investments and net worth, and such Shareholder is
financially able to bear the economic risk of this investment, including
the ability to afford holding the Stock Consideration for an indefinite
period or to afford a complete loss of this investment.
(g) Such Shareholder has been represented by such counsel and
advisers, each of whom has been previously selected by such Shareholder, as
such Shareholder has found necessary to consult concerning this Agreement
and the Stock Consideration to be issued pursuant to this Agreement. Such
Shareholder and his, her or its counsel and advisers have been provided
with such financial and other information concerning Buyer (including all
reports, proxy statements and registration statements filed by Buyer with
the Securities and Exchange Commission on or after January 1, 1997, and
Buyer's annual reports to shareholders and filings on Form 10-K for Buyer's
fiscal years ended December 31, 1995 and December 31, 1996) as such persons
have deemed relevant with respect to such Shareholder's investment decision
relating to the Stock Consideration issued hereunder (the "Purchaser
Disclosure Information"). He, she or it understands that this Agreement,
along with all of the Purchaser Disclosure Information, is an integral part
of the Purchaser Disclosure Information, and he, she or it has read this
Agreement (including its Exhibits and Schedules) and understands the
consequences of the transactions contemplated hereby. He, she or it has
had a reasonable opportunity to discuss Buyer's business, management and
financial affairs with Buyer's management, and he, she or it has received
satisfactory responses from management of Buyer to such inquiries.
SECTION 9.28. BROKERS AND FINDERS. Neither Seller, nor any affiliate of
Seller, nor any of the Shareholders has incurred any obligation or liability to
any party for any brokerage fees, agent's commissions or finder's fees in
connection with the transactions contemplated hereby.
SECTION 9.29. INTELLECTUAL PROPERTY. To Seller's knowledge:
(a) Exhibit 9.29 contains a correct and complete list of all
registered patents, trademarks, trade names and copyrights owned or used by
Seller, containing a brief description of each such item of Intellectual
Property and the nature of Seller's interest therein. The Purchased Assets
include and, upon the purchase of those assets, Buyer will own or have the
right to use all patents, designs, art work, designs-in-progress,
formulations, know-how, inventions, trademarks, trade names, trade styles,
service marks, copyrights, manufacturing processes, and confidential or
proprietary information necessary for the conduct of the Business as
presently conducted, except for intellectual property which relates solely
to the Retained Assets.
(b) No claim is pending or, to Seller's knowledge, threatened, and
Seller has not received notice that the conduct of the Business (including,
without limitation, Seller's use of any Intellectual Property) infringes
upon or conflicts with any rights claimed therein by any third party, nor
to Seller's knowledge is there any unasserted claim the assertion of which
is probable. No use by Seller of any Intellectual Property licensed to it
violates the terms of any agreement pursuant to which it is licensed. No
claim is pending, or, to Seller's knowledge, threatened, which alleges that
any Intellectual Property owned or licensed by Seller or which Seller
otherwise has the right to use is invalid or unenforceable by Seller, nor
to Seller's knowledge is there any such claim that is unasserted, but the
assertion of which is probable. Except as set forth on Exhibit 9.29,
Seller does not manufacture products which are the subject of patents,
patent applications, copyrights, copyright applications, trademarks,
trademark applications, trade styles, service marks, or trade secrets owned
by or licensed from third parties. Except as shown on Exhibit 9.29, no
royalties or fees are payable by Seller to anyone for use of the
Intellectual Property. True, correct, and complete copies of all
agreements pursuant to which Seller has any license or right to use any
Intellectual Property have been delivered to Buyer or made available for
Buyer to review. Seller has not received any notice that the manufacture,
use, or sale by Seller of its products, or any component or part thereof,
nor any manufacturing operation employed by Seller, violates or infringes
upon any claims of any United States or foreign patent or patent
application owned or held by any third party, nor to Seller's knowledge is
there any unasserted claim the assertion of which is probable.
ARTICLE X
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
Buyer represents and warrants to Seller and the Shareholders as follows:
SECTION 10.1. ORGANIZATION, ETC. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of New Jersey.
SECTION 10.2. AUTHORITY. Buyer has all requisite power and authority to
enter into this Agreement and the other Acquisition Documents to be executed by
Buyer in connection herewith and to consummate the transactions contemplated
hereby and thereby. The execution, delivery and performance by Buyer of each of
the Acquisition Documents to which it is a party has been duly and validly
authorized and approved by all necessary action on the part of Buyer. Each of
the Acquisition Documents to which Buyer is a party is the legal, valid, and
binding obligation of Buyer, enforceable against it in accordance with its
terms, except as enforceability may be limited by applicable equitable
principles (whether applied in a proceeding at law or in equity) or by
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
creditors' rights generally, to the exercise of judicial discretion in
accordance with general equitable
principles and to equitable defenses that may be applied to the remedy of
specific performance. The execution and delivery by Buyer of each of the
Acquisition Documents to which it is a party and the consummation by Buyer of
the transactions contemplated thereby will not (a) violate the Articles of
Incorporation or Bylaws of Buyer, or (b) violate any provisions of law or any
order of any court or any governmental entity to which Buyer is subject, or by
which Buyer may be bound.
SECTION 10.3. APPROVAL. Buyer, at the time of the Closing, will have
taken all requisite corporate action to approve this Agreement and the
transactions contemplated by this Agreement, and there shall have at the time of
Closing been delivered to Seller and the Shareholders certified copies of the
resolutions duly adopted in connection therewith.
SECTION 10.4. GOVERNMENTAL APPROVAL AND CONSENTS. Except with respect to
the HSR Act compliance contemplated by Section 6.4, no consent, approval, or
authorization of or declaration, filing, or registration with any governmental
or regulatory authority is required in connection with the execution, delivery,
and performance of this Agreement by Buyer or the consummation by Buyer of the
transactions contemplated hereby.
SECTION 10.5. NO LITIGATION. There is no litigation at law or in equity,
no arbitration proceeding and no proceeding before any commission or other
administrative authority pending or, to the knowledge of Buyer, threatened which
affects, or which may affect Buyer's right to carry on the Business as conducted
on the date hereof, or Buyer's right to perform this Agreement in accordance
with its terms.
SECTION 10.6. NO UNTRUE STATEMENTS. Neither this Agreement, nor any
certificate, exhibit, or other instrument or list or information required to be
furnished by Buyer pursuant to this Agreement, contains, or will contain, any
untrue statement of a material fact or omits, or will omit, to state any
material fact necessary in order to make the statements contained herein or
therein, in the light of the circumstances under which they were made, not
misleading.
SECTION 10.7. BUYER'S CAPITALIZATION. As of April 30, 1997, Buyer's
authorized capital stock consists solely of: (a) 160,000,000 shares of voting
common stock, of which 33,782,493 shares were issued and outstanding and
12,791,103 shares were held in treasury, and (b) 5,000,000 shares of preference
stock, of which no shares are currently issued and outstanding and no shares are
held in treasury. There are no outstanding securities of Buyer convertible into
or exchangeable for shares of Buyer's capital stock. Since May 16, 1997, Buyer
has not declared any dividend or other distribution to any shareholder.
SECTION 10.8. BROKERS AND FINDERS. Buyer has not incurred any obligation
or liability to any party for any brokerage fees, agent's commissions or
finder's fees in connection with the transactions contemplated hereby.
SECTION 10.9. PURCHASE PRICE. The Purchase Price consists of fully-paid,
validly-issued, non-assessable Buyer's Common Stock, which has been registered
under the Securities Act, pursuant to a registration statement on Form S-3, and
all other applicable securities laws which has been listed on the NYSE, and
which is without restrictions of any kind on sale or other disposition.
ARTICLE XI
SURVIVAL; INDEMNIFICATION; RELATED MATTERS
------------------------------------------
SECTION 11.1. SURVIVAL.
(a) The representations and warranties of Seller and the Shareholders
contained in this Agreement shall survive the date of this Agreement, the
Closing Date and the consummation of the transactions contemplated by this
Agreement until the third (3rd) anniversary of the Closing Date, except for (i)
the representations and warranties contained in Sections 9.17 and 9.18, which
shall survive until the expiration of the applicable statute of limitations, and
(ii) the representations and warranties contained in Sections 9.1, 9.2, 9.3,
9.4, 9.7 and 9.27, which shall survive without limitation as to time. The
covenants and agreements of Seller and the Shareholders contained in this
Agreement, except as expressly provided herein, shall survive the Closing
without limitation as to time.
(b) The representations and warranties of Buyer contained in this Agreement
shall survive the date of this Agreement, the Closing Date and the consummation
of the transactions contemplated by this Agreement until the third (3rd)
anniversary of the Closing Date, except for the representations and warranties
contained in Sections 10.1, 10.2, 10.3, 10.4 and 10.7, which shall survive
without limitation as to time. The covenants and agreements of Buyer contained
in this Agreement shall survive the Closing without limitation as to time.
(c) Notwithstanding any provision of this Agreement to the contrary, to
preserve any claim for the untruth, inaccuracy, incompleteness or breach, as the
case may be, of any such representation or warranty, the party claiming the same
shall be obligated to notify the party(ies) claimed against in writing of any
such event, or facts that may give rise to such event, before termination of
such representation or warranty; otherwise, such party's claim shall be forever
barred.
SECTION 11.2. INDEMNIFICATION.
(a) From and after the Closing Date, Seller and the Shareholders, shall
indemnify, defend and hold harmless Buyer and its successors and assigns from,
against and in respect of all liabilities, losses, diminution in value, damages,
amounts paid in settlement, costs or expenses, including, without limitation,
court costs and reasonable attorneys' fees, arising out of any actions, suits,
claims, judgments, orders or proceedings
("Adverse Consequences") which Buyer may suffer through and after the date of
the claim for indemnification (including any Adverse Consequences Buyer may
suffer after the end of any applicable survival period) resulting from, arising
out of, relating to or caused by (i) the untruth, inaccuracy or incompleteness
of any representation, or breach of any warranty, of Seller or any of the
Shareholders contained in this Agreement, or the failure by Seller or any of the
Shareholders to perform any of his, her or its covenants or obligations
hereunder, (ii) the Retained Assets and/or the Excluded Liabilities, (iii) the
failure to comply with any "bulk sales" or similar laws applicable to the
transactions contemplated by this Agreement; or (iv) until the third (3rd)
anniversary of the Closing Date, but expressly subject to Section 11.2(i), any
Environmental Liability which existed on the Real Property, the Additional
Property (if applicable) or the Leasehold Property, or otherwise existed with
respect to the Purchased Assets or the Business, as of the Closing Date;
provided, however, that only several liability shall apply to Adverse
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Consequences with respect to any representation, warranty, covenant or
obligation of any of the Shareholders; and provided further that Seller and the
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Shareholders shall not have any obligation to indemnify Buyer from, against or
in respect of any Adverse Consequences resulting from, arising out of, relating
to or caused by the untruth, inaccuracy, incompleteness or breach, as the case
may be, of any of the representations or warranties contained in Sections 9.5
through 9.10, Sections 9.14 through 9.16 or Sections 9.19 through 9.29 hereof,
or any Environmental Liability pursuant to clause (iv) above, (A) until Buyer
has suffered Adverse Consequences by reason of all such untruths, inaccuracies,
incompleteness or breaches, or Environmental Liability, as the case may be, in
excess of a $100,000.00 aggregate deductible, which amount Buyer shall be
required to pay or absorb before seeking indemnification hereunder (the
"Basket"), or (B) except as provided to the contrary in Section 11.2(i), to the
extent the Adverse Consequences suffered by Buyer by reason of all such
untruths, inaccuracies, incompleteness or breaches, or Environmental Liability,
as the case may be, exceed $1,100,000.00 (the "Cap"); provided, however, that
-------- -------
Buyer agrees to give Seller and the Shareholders prompt written notice of any
such untruth, inaccuracy, incompleteness, breach or failure, as the case may be,
of which Buyer obtains actual knowledge prior to the Closing Date. The
provisions of this Section 11.2 are the sole and exclusive remedy of Buyer with
respect to Adverse Consequences hereunder.
(b) From and after the Closing Date, Buyer shall indemnify, defend and hold
harmless Seller and the Shareholders and their respective successors and assigns
from, against and in respect of any Adverse Consequences that Seller or any of
the Shareholders shall suffer through and after the date of the claim for
indemnification resulting from, arising out of, relating to or caused by (i) the
untruth, inaccuracy or incompleteness of any of the representations of Buyer
contained in this Agreement, (ii) the breach of any warranty of Buyer contained
in this Agreement, or (iii) the failure by Buyer to perform any of its covenants
or obligations hereunder.
(c) A party seeking indemnification pursuant to this Section 11.2 (the
"Indemnified Party") shall give prompt notice to the party from whom such
indemnification is sought (the "Indemnifying Party") in the event that any
person not a
party to this Agreement shall make any demand or claim, or file or threaten to
file any lawsuit (a "Third-Party Claim"), which Third-Party Claim may cause
liability to the Indemnifying Party pursuant to the indemnification provisions
of this Agreement. In any such event, the Indemnifying Party shall have the
right, exercisable by notice to the Indemnified Party within twenty (20) days
after notice by the Indemnified Party to the Indemnifying Party of the
commencement or assertion of such Third-Party Claim, to retain counsel (which
counsel shall be reasonably acceptable to the Indemnified Party), at the cost
and expense of the Indemnifying Party, to defend any such Third-Party Claim. The
Indemnified Party shall be permitted to employ separate counsel and to
participate in the defense of such Third-Party Claim, but the fees and expenses
of such counsel shall be borne by the Indemnified Party. In the event that the
Indemnifying Party shall fail to respond within twenty (20) days after receipt
of notice from the Indemnified Party of the commencement or assertion of any
such Third-Party Claim, then the Indemnified Party shall retain counsel and
conduct the defense of such Third-Party Claim as it may in its discretion deem
proper, at the cost and expense of the Indemnifying Party.
(d) Unless and until an Indemnifying Party assumes the defense of a Third-
Party Claim as provided in Section 11.2(c), or in the event the Indemnifying
Party ceases to diligently conduct such defense, the Indemnified Party may
defend against the Third-Party Claim in any manner it may reasonably deem
appropriate.
(e) The Indemnifying Party, if it shall have assumed the defense of any
Third-Party Claim, shall not have the right to consent to the entry of judgment
with respect to, or otherwise settle such Third-Party Claim without the prior
written consent of the Indemnified Party (which consent shall not be
unreasonably withheld or delayed), unless the judgment or proposed settlement
involves only the payment of money damages and does not impose an injunction or
other equitable relief upon the Indemnified Party. In no event will the
Indemnified Party consent to the entry of any judgment with respect to, or
otherwise settle any such Third-Party Claim without the prior written consent of
the Indemnifying Party (which consent shall not be unreasonably withheld or
delayed).
(f) The parties hereto shall cooperate in the defense of any Third-Party
Claim and shall furnish such records, information and testimony, and attend at
such conferences, discovery proceedings, hearings, trials and appeals as may be
reasonably requested in connection therewith.
(g) Any indemnification payment hereunder with respect to any Adverse
Consequences will be an amount which is sufficient to compensate the Indemnified
Party for the amount of such Adverse Consequences, after taking into account all
decreases in federal, state, local, or foreign taxes payable by the Indemnified
Party or any other tax benefit accruing to the Indemnified Party as a result of
the Adverse Consequences.
(h) If an Indemnifying Party timely assumes the defense of a Third-Party
Claim as provided in Section 11.2(c), the Indemnified Party will not be entitled
to any
reimbursement by the Indemnifying Party in respect of expenses incurred by the
Indemnified Party.
(i) Notwithstanding anything contained herein to the contrary, from and
after the Closing Date (and, for any Adverse Consequences suffered by Buyer
prior to the third (3rd) anniversary of the Closing Date, after Buyer has
absorbed or paid the Basket and Seller and the Shareholders have indemnified
Buyer up to the amount of the Cap, it being mutually agreed and understood that,
for any Adverse Consequences constituting Environmental Liability suffered prior
to the third (3rd) anniversary of the Closing Date, Buyer shall be liable
therefor up to the amount of the Basket and Seller and the Shareholders shall be
liable therefor up to the amount of the Cap less the amount of the Basket),
----
Seller and the Shareholders shall severally indemnify, defend and hold harmless
Buyer and its successors and assigns from, against and in respect of fifty
percent (50%) of any Adverse Consequences, including, but not limited to, any
and all amounts paid by Buyer for investigatory costs, assessment costs, clean-
up costs, removal costs, remedial costs, governmental response costs, damages to
natural resources or other property, personal injuries, fines or penalties, to
the extent that the same arise out of, are based upon, or result from, both (i)
the enforcement of CERCLA, RCRA, the Georgia Hazardous Waste Management Act,
O.C.G.A. (S)(S)12-8-60 et seq., or the Georgia Hazardous Sites Response Act,
------
O.C.G.A. (s)(s)12-8-90 et seq., and rules and regulations promulgated
------
thereunder, by the United States Environmental Protection Agency, the Georgia
Environmental Protection Department, the successors or assigns of either or any
third party having enforcement rights under such laws, and (ii) the presence,
disposal, release or threatened release into the environment of any Hazardous
Substance which existed as of the Closing Date on the Real Property, the
Additional Property (if applicable) or the Leasehold Property. The obligations
of the Seller and the Shareholders under this Subparagraph 11.2(i) shall not be
limited by the Basket, the Cap or by any survival period.
ARTICLE XII
CONDITIONS TO CLOSING APPLICABLE TO BUYER
-----------------------------------------
The obligations of Buyer hereunder (including, without limitation, the
obligation of Buyer to close the transactions and consummate the purchase herein
contemplated) are subject to the following conditions precedent:
SECTION 12.1. CORRECTNESS OF WARRANTIES, ETC. All warranties and
representations made by Seller or any of the Shareholders herein, in any of the
other Acquisition Documents, or in any Exhibit or in any list or information
required to be delivered pursuant hereto shall be true and correct in all
material respects on and as of the Closing Date, with the same effect as if such
warranties and representations had been made on and as of the Closing Date, and
Seller and each of the Shareholders shall have, in all material respects,
performed and complied with all agreements, covenants and conditions on his, her
or its parts required to be performed or complied with on or prior to
the Closing Date, and at the Closing, Buyer shall have received a certificate
executed by an officer of Seller and each of the Shareholders to the foregoing
effects.
SECTION 12.2. NO UNDISCLOSED LIABILITIES, ETC. On the Closing Date,
Seller shall not have any material liability of any nature, whether accrued,
absolute, contingent or otherwise, relating to the Purchased Assets and not
disclosed in this Agreement, the Exhibits hereto or any certificate, document,
instrument, list or information required to be furnished by Seller pursuant to
this Agreement.
SECTION 12.3. NO PROCEEDINGS. No proceeding or formal investigation shall
have been commenced by any governmental or regulatory agency or by any other
person or entity with respect to any of the transactions contemplated by this
Agreement.
SECTION 12.4. SATISFACTION OF BUYER AND ITS COUNSEL. All proceedings to
be taken in connection with the consummation of the transactions contemplated by
this Agreement, and all documents incident thereto, shall be reasonably
satisfactory in form and substance to Buyer and its counsel, and Buyer and its
counsel shall have received copies of such documents as its counsel may
reasonably request in connection with said transactions.
SECTION 12.5. OPINION OF COUNSEL. At the closing, there shall be
delivered to Buyer the written opinion of Xxxxxxxxxx Xxxxxxxx LLP, counsel for
Seller, dated the Closing Date, substantially in the form annexed hereto as
Exhibit 12.5. Such opinion shall be acceptable to Buyer and its counsel.
SECTION 12.6. CONSENTS. All consents required by Section 6.4 including,
without limitation, compliance with the HSR Act, shall have been obtained on or
before the Closing Date.
SECTION 12.7. RESERVES. Buyer shall have confirmed, to its reasonable
satisfaction, that the quantity, quality and mineralogy of the reserves on the
Real Property, the Additional Property (if applicable) and the Leasehold
Property are adequate for the operation of the Business after the Closing Date.
SECTION 12.8. ENVIRONMENTAL AND LAND USE. Buyer shall have confirmed, to
its reasonable satisfaction, that the environmental and land use (including,
without limitation, zoning and permitting) status of the Real Property, the
Additional Property (if applicable) and the Leasehold Property are legally
sufficient to allow Buyer to operate the Business after the Closing Date.
SECTION 12.9. DELIVERIES. Seller should have made all deliveries to Buyer
required by Section 5.1.
SECTION 12.10. EXTENSION OF BELLWOOD QUARRY LEASE. Seller shall have
entered into an extension of the Bellwood Quarry Lease with Xxxxxx County,
Georgia for a period
of time, and otherwise upon terms and conditions, acceptable to Buyer in its
sole and absolute discretion. Seller shall have deposited $150,000 in the
Residential Neighborhood Claim Fund established pursuant to Paragraph 16 of the
Bellwood Quarry Lease and Seller shall have appointed as a Trustee of such Fund
the individual chosen by Buyer pursuant to Seller's appointment power under such
Paragraph 16.
SECTION 12.11. ESTOPPEL CERTIFICATES. Seller shall have delivered to
Buyer estoppel certificates from the landlords or lessors under the Bellwood
Quarry Lease and the Rockmart Quarry Lease covering such matters as Buyer shall
reasonably request.
ARTICLE XIII
CONDITIONS TO CLOSING APPLICABLE TO SELLER AND THE SHAREHOLDERS
---------------------------------------------------------------
The obligations of Seller and each of the Shareholders hereunder
(including, without limitation, the obligation to close the transactions herein
contemplated) are subject to the following conditions precedent:
SECTION 13.1. CORRECTNESS OF WARRANTIES, ETC. All warranties and
representations made by Buyer herein, in any of the other Acquisition Documents,
in any Exhibit or in any list or information required to be delivered pursuant
hereto shall be true and correct in all material respects on and as of the
Closing Date, with the same effect as if such warranties and representations had
been made on and as of the Closing Date, and Buyer shall have, in all material
respects, performed and complied with all agreements, covenants and conditions
on its part required to be performed or complied with on or prior to the Closing
Date, and at the Closing, Seller and the Shareholders shall have received a
certificate executed by an officer of Buyer to the foregoing effects.
SECTION 13.2. NO PROCEEDINGS. No proceeding or formal investigation shall
have been commenced by any governmental or regulatory agency or by any other
person or entity with respect to any of the transactions contemplated in this
Agreement.
SECTION 13.3. SATISFACTION OF SELLER AND ITS COUNSEL. All proceedings to
be taken in connection with the consummation of the transactions contemplated by
this Agreement, and all documents incident thereto, shall be reasonably
satisfactory in form and substance to Seller and its counsel, and Seller and its
counsel shall have received copies of such documents as its counsel may
reasonably request in connection with said transactions.
SECTION 13.4. OPINION OF COUNSEL TO BUYER. At the Closing, there shall be
delivered to Seller the written opinion of Xxxxxx & Bird LLP, counsel for Buyer,
dated the Closing Date, substantially in the form attached hereto as Exhibit
13.4. Such opinion shall be acceptable to Seller and its counsel.
ARTICLE XIV
BULK SALES LAWS
---------------
Seller hereby represents and warrants that, on the Closing Date, the fair
market value of Seller's assets, or the value thereof on the books of Seller,
whichever is the lesser amount, exceeds the total amount of Seller's
liabilities, and that the proceeds to Seller from the sale of the Purchased
Assets contemplated in this Agreement will be applied first to the debts of
Seller associated with or related to such Purchased Assets. In consideration of
such representation and warranty by Seller, Buyer hereby waives any compliance
with the bulk sales law of any state or other jurisdiction which might be
applicable to the transactions contemplated in this Agreement, subject to the
agreement that nothing in this Article XIV shall estop or prevent Buyer from
asserting as a bar or defense to any action or proceeding brought under that law
that it is not applicable to the sale contemplated under this Agreement;
provided, however, that Seller and each of the Shareholders shall indemnify and
-------- -------
hold harmless Buyer with respect to any and all liability which may arise as a
result of the application of any such bulk sales law, the intent of this
provision being that Seller will maintain Buyer in such financial condition as
would have resulted had such compliance taken place.
ARTICLE XV
MISCELLANEOUS
-------------
SECTION 15.1. TERMINATION OF AGREEMENT.
(a) This Agreement may be terminated:
(i) by the mutual consent of the Seller, the Shareholders and Buyer;
(ii) by Buyer, on the one hand, or Seller and the Shareholders, on
the other, in the event of the material untruth, inaccuracy, incompleteness
or breach, as the case may be, of any representation or warranty made by
the other party in this Agreement which cannot be or has not been corrected
or cured within thirty (30) days after the giving of written notice to the
party making such representation or warranty of such untruth, inaccuracy,
incompleteness or breach, as the case may be; or
(iii) by Buyer, on the one hand, and Seller and the Shareholders, on
the other, in the event of a material breach by the other party of any
covenant or agreement contained in this Agreement which cannot be and has
not been cured within thirty (30) days after the giving of written notice
to the breaching party of such breach; or
(iv) by Buyer, on the one hand, and Seller and the Shareholders, on
the other, in the event any governmental or regulatory approval required
for the consummation of the transactions contemplated hereby shall have
been denied by final nonappealable action of the governmental or regulatory
authority or if any action taken by such authority is not appealed within
the time limit for appeal; or
(v) by Buyer, on the one hand, and Seller and the Shareholders, on
the other, in the event that any of the conditions precedent to the
obligations of such parties to consummate the transactions contemplated
hereby have not been satisfied or fulfilled by December 31, 1997; or
(vi) by Buyer as provided in Sections 5.3(c), 5.5(a) or
5.6(b)(ii)(A); or
(vii) automatically as provided in Section 6.7.
(b) In the event of the termination and abandonment of this Agreement
pursuant to Section 15.1(a)(i), (iv), (vi) or (vii), this Agreement shall become
void and have no effect without any liability on the part of any of the parties
hereto or their directors, officers or stockholders in respect of this
Agreement, except for any liabilities which expressly survive any such
termination. In the event of termination or abandonment hereof pursuant to
Section 15(a)(ii) where the untruth, inaccuracy, incompleteness or breach, as
the case may be, of the subject representation or warranty occurs without the
actual knowledge of the party making the same, the other party's sole remedy
hereunder shall be the termination of this Agreement. In the event of
termination or abandonment hereof pursuant to Section 15.1(a)(iii) or (v), or
pursuant to Section 15.1(a)(ii) where the untruth, inaccuracy, incompleteness or
breach, as the case may be, occurs with the actual knowledge of the party making
the same, the parties shall have all rights and remedies available to them at
law or in equity with respect to such termination or abandonment.
SECTION 15.2. NOTICES. Any notice, communication or request under this
Agreement to either of the parties shall be in writing and shall be effectively
delivered if delivered personally or by courier, or mailed, upon deposit in the
United States mail, by first-class registered or certified mail, postage prepaid
and return receipt requested, or by telegram, facsimile transmission or by
nationally-recognized overnight courier service, as follows:
If to Buyer:
Vulcan Materials Company
X.X. Xxx 00000
Xxxxxxx, Xxxxxxx 00000
or
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Mr. G.M. (Mac) Xxxxxxx, III, President, Southeast Division
(Telecopy: (000) 000-0000)
with copies to:
Vulcan Materials Company
X.X. Xxx 000000
Xxxxxxxxxx, XX 00000
or
Xxx Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
(Telecopy: (000) 000-0000)
-and-
Xxxxxx & Bird, LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxxxx X. Xxxxxxxxx, Esq.
(Telecopy: (000) 000-0000)
or to Seller or any of the Shareholders:
c/o X.X. Xxxxxxxx Quarries, Inc.
X.X. Xxxxxx 000
Xxxxxxxx, Xxxxxxx 00000
or
0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx, President
(Telecopy: (000) 000-0000)
with a copy to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
(Telecopy: (000) 000-0000).
Any party may change the address to which notices are to be sent by giving
written notice of such change of address to the other parties in the manner
above provided for giving notice. If delivered personally or by courier, the
date on which the notice, request,
instruction or document is delivered shall be the date on which such delivery is
made and if delivered by mail, telegram, facsimile transmission or overnight
courier service as aforesaid, the date on which such notice, request,
instruction or document is received shall be the date of delivery.
SECTION 15.3. HEADINGS; CAPTIONS. The captions and other headings
contained in this Agreement as to the contents of particular articles, sections,
paragraphs or other subdivisions contained herein are inserted for convenience
of reference only and are in no way to be construed as part of this Agreement or
as limitations on the scope of the particular articles, sections, paragraphs or
other subdivisions to which they refer and shall not affect the interpretation
or meaning of this Agreement. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine, or
neuter, as the context requires. Any reference to a "person" herein shall
include an individual, firm, corporation, partnership, trust, governmental
authority or body, association, unincorporated organization or any other entity.
SECTION 15.4. INCORPORATION OF EXHIBITS. This Agreement shall be deemed
to have incorporated by reference all of the Exhibits referred to herein to the
same extent as if such Exhibits were fully set forth herein. Each reference
herein to "the Agreement" or "this Agreement" shall be construed to include each
such Exhibit.
SECTION 15.5. ENTIRE AGREEMENT AND AMENDMENT. This Agreement and the
Exhibits attached hereto represent the entire understanding and agreement
between the parties with respect to the subject matter hereof and shall
supersede any prior agreements and understanding between the parties with
respect to that subject matter. This Agreement may not be amended or modified
except by a written instrument executed by an officer of Buyer, an officer of
Seller and the Shareholders.
SECTION 15.6. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure
to the benefit of and be enforceable by the parties hereto, and their respective
successors and assigns, but no assignment shall relieve any party of its
obligations hereunder. Buyer shall have the right to assign its rights and
obligations under this Agreement to one or more subsidiaries of Buyer; provided,
--------
however, that Buyer hereby unconditionally guarantees the performance by such
-------
assignee or assignees of each and every obligation of Buyer under this
Agreement. If such assignment to one or more subsidiaries is made by Buyer, the
term "Buyer" as used herein shall refer to the assignee or assignees of this
Agreement.
SECTION 15.7. GOVERNING LAW. This Agreement shall be controlled,
construed and enforced in accordance with the internal laws of the State of
Georgia, without reference to the choice of law or conflicts of laws provisions
thereof.
SECTION 15.8. COUNTERPARTS. This Agreement may be executed simultaneously
and in any number of counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
SECTION 15.9. RESERVED.
SECTION 15.10. TAXES; PRORATIONS. Ad valorem taxes for the current year
shall be prorated as of the Closing Date between Seller at Closing. Proration
of ad valorem taxes, for purposes of calculating adjustments of payments at the
Closing Date, shall be made on the basis of the most current tax rates and
assessed values.
SECTION 15.11. NO BENEFIT TO OTHERS. The representations, covenants and
agreements contained in this Agreement are for the sole benefit of the parties
hereto and, in the case of Article XI hereof, the indemnified parties and their
respective heirs, executors, administrators, legal representatives, successors
and assigns, and they shall not be construed as conferring any rights on any
other persons.
SECTION 15.12. PARTIAL INVALIDITY. Whenever possible, each provision
hereof shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal, or unenforceable provision or provisions had never been
contained herein unless the deletion of such provision or provisions would
result in such a material change as to cause completion of the transactions
contemplated hereby to be unreasonable.
SECTION 15.13. INVESTIGATION. No inspection, preparation, or compilation
of information or Exhibits, or audit of the inventories, properties, financial
condition or other matters relating to Seller, the Shareholders or the Purchased
Assets conducted by or on behalf of Buyer pursuant to this Agreement shall in
any way limit, affect, or impair the ability of Buyer to rely upon the
representations, covenants and agreements of Seller and the Shareholders set
forth herein. The covenants and representations of Seller, the Shareholders and
Buyer shall survive the Closing and the execution and delivery of all
instruments of conveyance for the periods set forth in Section 11.1.
SECTION 15.14. PUBLIC ANNOUNCEMENTS. Seller, the Shareholders and Buyer
will consult with each other before issuing any press releases or otherwise
making any public statements or filings with governmental entities with respect
to this Agreement or the transactions contemplated hereby and shall not issue
any press releases or make any public statements or filings with governmental
entities prior to such consultation and shall modify any portion thereof if the
other party reasonably objects thereto, unless the same may be required by
applicable law.
SECTION 15.15. DISPUTE RESOLUTION. The parties agree that any dispute
between or among them arising out of or based upon this Agreement, the other
Acquisition Documents or the consummation of the transactions contemplated
hereby shall be submitted to and resolved by arbitration in Atlanta, Georgia in
accordance with the
Commercial Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association, and the decision of the arbiter in such dispute shall
be final and binding on the parties to such arbitration proceeding. Except as
the arbiter may otherwise award or assess, each party shall bear its own costs
and expenses, including, without limitation, the expense of its counsel, in any
such arbitration proceeding. The parties to any arbitration proceeding shall be
entitled to conduct reasonable discovery in connection therewith. Each award
rendered by the arbiter pursuant to this Section 15.15 shall be accompanied by a
written decision explaining the arbiter's reasoning and addressing each party's
arguments. Each arbitration proceeding held pursuant to this Section 15.15 shall
be heard by a single neutral arbiter selected in accordance with the Arbitration
Rules.
SECTION 15.16. KNOWLEDGE. The phrases "Seller's knowledge" or "the
knowledge of Seller" mean the actual knowledge, without conducting any inquiry,
of Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxx, Xx., Q. Xxxxxxx Xxxxxxx, Xx., and Xxxxxxx
X. Xxxxxxxx. The phrases "Shareholder's knowledge" or "the knowledge of a
Shareholder" mean the actual knowledge, without conducting any inquiry, of
Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxx, Xx., Q. Xxxxxxx Xxxxxxx, Xx., and Xxxxxxx X.
Xxxxxxxx. The phrases "Buyer's knowledge" or "the knowledge of Buyer" mean the
actual knowledge, without conducting any inquiry, of G.M. (Mac) Xxxxxxx, III.
IN WITNESS WHEREOF, Seller, Buyer and each of the Shareholders have each
executed under seal or caused this Agreement to be duly executed under seal on
their respective behalves by their respective duly authorized officers, all as
of the day and year first above written.
SELLER
------
ATTEST: X.X. XXXXXXXX QUARRIES, INC., a
Georgia corporation
/s/ Xxxxx X. Xxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------- ----------------------------
Name: Xxxxx X. Xxxxx, Xx. Xxxxxx X. Xxxxxxxx
Title: Secretary President
[CORPORATE SEAL]
SHAREHOLDERS:
-------------
/s/ Xxxxxx X. Xxxxxxxx (SEAL)
--------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxx, Xx. (SEAL)
--------------------------------
Xxxxx X. Xxxxx, Xx., individually; as
Co-Trustee of the Xxxxxxx Xxxxxxxx
Subchapter S Trust U/A December 12,
1994; as Co-Trustee of the Xxxx Xxxxxxxx
Xxxxxx Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Xxxx
Xxxxx Xxxxxx Subchapter S Trust U/A
December 12, 1994; as Co-Trustee of
the Xxxxxxx Xxxxx Xxxxxxxx Subchapter
S Trust U/A May 22, 1995; and as
Co-Trustee of the Xxxxxxxxx Xxxx
Xxxxxxxx Subchapter S Trust U/A
February 14, 1997
/s/ Xxxxxxx Xxxxxxx, Xx. (SEAL)
-------------------------------
Q. Xxxxxxx Xxxxxxx, Xx., individually;
as Co-Trustee of the Xxxxxxx Xxxxxxxx
Subchapter S Trust U/A December 12,
1994; as Co-Trustee of the Xxxx Xxxxxxxx
Xxxxxx Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Xxxx
Xxxxx Xxxxxx Subchapter S Trust U/A
December 12, 1994; as Co-Trustee of
the Xxxxxxx Xxxxx Xxxxxxxx Subchapter
S Trust U/A May 22, 1995; and as
Co-Trustee of the Xxxxxxxxx Xxxx
Xxxxxxxx Subchapter S Trust U/A
February 14, 1997
/s/ Xxxxxx Xxxxxxxx (SEAL)
-------------------------------
Xxxxxx Xxxxxxxx, as Co-Trustee of the
Xxxxxxx Xxxxxxxx Subchapter S Trust U/A
December 12, 1994 and as Co-Trustee of
the Xxxx Xxxxxxxx Xxxxxx Subchapter S
Trust U/A December 12, 1994
BUYER:
-----
ATTEST: VULCAN MATERIALS COMPANY, a
New Jersey corporation
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
----------------------------- ----------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary Title: Chairman and CEO
[CORPORATE SEAL]
_____________________________________________
FIRST AMENDMENT TO THE
ASSET PURCHASE AGREEMENT AND
PLAN OF REORGANIZATION
BY AND AMONG
X.X. XXXXXXXX QUARRIES, INC.,
THE SHAREHOLDERS OF
X.X. XXXXXXXX QUARRIES, INC.,
AND VULCAN MATERIALS COMPANY
_____________________________________________
FIRST AMENDMENT TO THE
ASSET PURCHASE AGREEMENT
AND PLAN OF REORGANIZATION
THIS FIRST AMENDMENT TO THE ASSET PURCHASE AGREEMENT AND PLAN OF
REORGANIZATION (this "Amendment") is made and entered into as of this 19th day
of December, 1997, by and among X.X. XXXXXXXX QUARRIES, INC., a Georgia
corporation ("Seller"), the shareholders of Seller listed on Exhibit A hereto
(each a "Shareholder", and collectively, the "Shareholders") and VULCAN
MATERIALS COMPANY, a New Jersey corporation ("Buyer").
W I T N E S S E T H :
---------------------
WHEREAS, the Seller, Shareholders, and Buyer are parties to an Asset
Purchase Agreement and Plan of Reorganization, dated as of September 29, 1997
(the "Agreement;"
WHEREAS, the parties hereto agree that the capitalized terms used herein
and not otherwise defined herein shall have the meanings given such terms in the
Asset Purchase Agreement;
WHEREAS, the Seller, Shareholders, and Buyer are of the opinion that the
Agreement should be amended to extend the Closing Date to reflect certain
potential delays; and
WHEREAS, the Seller, Shareholders, and Buyer are of the opinion that the
Agreement should be amended to incorporate the agreed upon forms for the Asphalt
Supply Agreement and Registration Rights Agreement;
NOW, THEREFORE, for and in consideration of the above mutual
representations, warranties, covenants and agreements and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto mutually covenant and agree as follows:
1. Amendment to Section 2.1(e) of the Agreement
--------------------------------------------
Section 2.1(e) of the Agreement is hereby deleted in its entirety and a new
Section 2.1(e) is substituted therefor, to read as follows:
SECTION 2.1. PURCHASE PRICE.
(e) Finally, in consideration of Buyer's assumption of Seller's royalty
liability to Xxxxxx County, Georgia under the Bellwood Quarry Lease (as defined
in Exhibit 1.1(d)(iii) hereto) as of the Closing Date, but provided that X.X.
Xxxxxxxx Contracting Co., Inc., a
1
Georgia corporation affiliated with Seller ("Contracting"), enters into an
asphalt supply agreement (the "Asphalt Supply Agreement") with Buyer on the
Closing Date in substantially the form attached hereto as Exhibit 2.1(e), the
purchase price payable hereunder shall be reduced by an amount equal to $4.00
per ton multiplied by the number of tons of aggregate for which Buyer will be
liable as of the Closing Date to Xxxxxx County, Georgia for royalty payments
under the Bellwood Quarry Lease, assuming for the purposes hereof that Xxxxxx
County, Georgia elects to receive the royalty payments solely in granite
aggregate. The Asphalt Supply Agreement shall, at a minimum, provide that, in
the event that Xxxxxx County, Georgia chooses to receive its royalty payments
under the Bellwood Quarry Lease in plant mixed asphalt rather than granite
aggregate, and also in the event that Xxxxxx County, Georgia elects to make
outright purchases of asphalt mix as a customer pursuant to the Bellwood Quarry
Lease, Contracting would agree to supply such asphalt to Buyer at the same price
per ton as such asphalt mix is required to be supplied to Xxxxxx County, Georgia
under the terms of the Bellwood Quarry Lease as then in effect, and Contracting
would purchase the aggregate for such asphalt mix from Buyer from time to time.
2. Amendment to Section 2.2 of the Agreement
-----------------------------------------
Section 2.2 of the Agreement is hereby deleted in its entirety and a new
Section 2.2 is substituted therefor, to read as follows:
SECTION 2.2. FORM OF CONSIDERATION. Buyer shall pay the Purchase Price to
the Shareholders pursuant to Section 2.7, in the form of Buyer's Common Stock,
which shares shall be fully-paid, validly-issued, non-assessable, registered
under the Securities Act of 1933, as amended (the "Securities Act"), and all
other applicable securities laws for resale thereof, and listed on the New York
Stock Exchange pursuant to a registration rights agreement (the "Registration
Rights Agreement") in substantially the form attached hereto as Exhibit 2.2
which shall be signed at Closing. The aggregate number of shares of Buyer's
Common Stock to be delivered to the Shareholders shall be equal to the Purchase
Price divided by the Base Period Trading Price. As used herein, "Base Period
Trading Price" shall mean the average of the daily closing prices for shares of
Buyer's Common Stock for the twenty (20) consecutive trading days on which such
shares are actually traded on the New York Stock Exchange (as reported by The
Wall Street Journal) ending at the close of trading on the trading day that is
the business day immediately prior to the Closing Date; provided, however, that
-------- -------
it is mutually agreed and understood that the Base Period Trading Price shall be
no less than $52.875, and no more than $72.875. Notwithstanding the foregoing,
no Shareholder shall be entitled to receive any fractional share of Buyer's
Common Stock, and each Shareholder shall forfeit any such fractional share and
shall not be entitled to any consideration in lieu thereof. The Buyer's Common
Stock paid to the Shareholders hereunder is referred to herein as the "Stock
Consideration".
2
3. Amendment to Section 4.1 of the Agreement
-----------------------------------------
Section 4.1 of the Agreement is hereby deleted in its entirety and a new
Section 4.1 is substituted therefor, to read as follows:
SECTION 4.1. THE CLOSING. The closing (the "Closing") of the transactions
contemplated hereby shall take place at the offices of Xxxxxx & Bird LLP, One
Atlantic Center, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000 at
10:00 A.M. local time on the date which is thirty (30) business days after all
the conditions to Closing have been satisfied or waived and the consent of
Xxxxxx County, Georgia to the transfer and assignment of the Bellwood Quarry
Lease to Buyer is obtained, or at such other place and/or on such other date and
at such other time as may be agreed by Seller and Buyer, but in no event shall
the Closing Date be later than June 30, 1998.
4. Amendment to Section 5.1(p) of the Agreement
--------------------------------------------
Section 5.1(p) of the Agreement is hereby amended by deleting the word
"and" appearing in Section 5.1(p)
5. Amendment to Section 5.1(q) of the Agreement
--------------------------------------------
Section 5.1(q) of the Agreement is hereby deleted in its entirety and a new
Section 5.1(q) is substituted therefor, to read as follows:
SECTION 5.1. DELIVERIES BY SELLER.
(q) the Registration Rights Agreement; and
6. Amendment to Section 5.1(r) of the Agreement.
---------------------------------------------
A new Section 5.1(r) is hereby added and shall read as follows:
SECTION 5.1. DELIVERIES BY SELLER.
(r) such other documents as may be reasonably requested by Buyer.
7. Amendment to Section 5.2(j) of the Agreement
--------------------------------------------
Section 5.2(j) of the Agreement is hereby amended by deleting the word
"and" appearing in Section 5.2(j).
3
8. Amendment to Section 5.2(k) of the Agreement
--------------------------------------------
Section 5.2(k) of the Agreement is hereby deleted in its entirety and a new
Section 5.2(k) is substituted therefor, to read as follows:
SECTION 5.2. DELIVERIES BY BUYER.
(k) the Registration Rights Agreement; and
9. Amendment to Section 5.2(l) of the Agreement
--------------------------------------------
Section 5.2(l) of the Agreement is hereby deleted in its entirety and a new
Section 5.2(l) is substituted therefor, to read as follows:
SECTION 5.2. DELIVERIES BY BUYER.
(l) such other documents as may be reasonably requested by Seller.
10. Amendment to Section 5.3(a) of the Agreement
--------------------------------------------
Section 5.3(a) of the Agreement is hereby deleted in its entirety and a new
Section 5.3(a) is substituted therefor, to read as follows:
SECTION 5.3 PROVISIONS RELATING TO THE REAL PROPERTY, THE ADDITIONAL
PROPERTY AND THE LEASEHOLD PROPERTY. (a) Buyer will obtain a current survey of
the Real Property, the Additional Property and the Leasehold Property, certified
by a surveyor registered under the laws of the State of Georgia (the "Survey")
by December 31, 1997. Buyer shall bear the cost of the Survey.
11. Amendment to Section 5.3(b) of the Agreement
--------------------------------------------
Section 5.3(b) of the Agreement is hereby deleted in its entirety and a new
Section 5.3(b) is substituted therefor, to read as follows:
SECTION 5.3 PROVISIONS RELATING TO THE REAL PROPERTY, THE ADDITIONAL
PROPERTY AND THE LEASEHOLD PROPERTY.
(b) In addition, by no later than December 19, 1997, Buyer shall obtain a
binding and enforceable title commitment (the "Commitment") from a title company
acceptable to Buyer (the "Title Company"), for the issuance of a title policy of
title insurance (the "Title Policy") to insure title to the Real Property, the
Additional Property and Seller's leasehold interests in the Leasehold Property
in Buyer, subject only to (i) liens
4
for Taxes, assessments, both general and special, and other governmental charges
which are not due and payable as of the Closing Date (other than Taxes arising
out of the transaction contemplated hereby, which shall be paid by Seller
pursuant to Section 2.9); (ii) all building codes and zoning ordinances and
other laws heretofore, now or hereafter enacted, made or issued by any
governmental authority affecting the Business; (iii) all electric, power,
telephone, gas, sanitary sewer, storm sewer, water and other utility lines,
pipelines, service lines and facilities of any nature now located on, over or
under the Real Property, the Leasehold Property, and, if applicable, the
Additional Property, and all licenses, easements, rights-of-way and other
agreements relating thereto; (iv) all existing public and private roads and
streets (whether dedicated or undedicated), and all railroad lines and railroad
rights-of-way affecting the Real Property, the Leasehold Property, and, if
applicable, the Additional Property; and (v) all matters waived by Buyer
pursuant to the provisions of Section 5.3(c)(ii) (collectively, the "Permitted
Encumbrances"). Buyer shall be solely responsible for the cost of the
Commitment.
12. Amendment to Section 5.3(c) of the Agreement
--------------------------------------------
Section 5.3(c) of the Agreement is hereby deleted in its entirety and a new
Section 5.3(c) is substituted therefor, to read as follows:
SECTION 5.3 PROVISIONS RELATING TO THE REAL PROPERTY, THE ADDITIONAL
PROPERTY AND THE LEASEHOLD PROPERTY.
(c) In the event that the Commitment or the Survey reveal any encumbrance
in or upon any portion of the Real Property, the Additional Property or the
Leasehold Property or any encroachment of an improvement on the Property
necessary to the operation of the Business as presently conducted on any
adjoining property, in either case which is unacceptable to Buyer (collectively,
the "Unacceptable Encumbrances"), with the exception of the Permitted
Encumbrances, Buyer shall, by no later than January 16, 1998, deliver to Seller
written notification of each Unacceptable Encumbrance. Within the same time
period, Buyer shall give Seller notice of Buyer's willingness to purchase the
Additional Property, and should Buyer elect to do so, the Additional Property,
if acquired by Seller, shall become part of the Purchased Assets hereunder. On
or before the Closing Date, Seller shall be required to remove all Unacceptable
Encumbrances in the nature of liens, security titles and security interests
which may be removed or released by the payment of money (collectively, the
"Monetary Encumbrances"). If Seller is unable to cause the removal of all
Unacceptable Encumbrances or arrange to insure or bond over, to the reasonable
satisfaction of Buyer, such Unacceptable Encumbrances, prior to the scheduled
Closing Date, Buyer may exercise any of the following options:
(i) postpone the closing for an additional period of time as Buyer may
deem appropriate, but no longer than sixty (60) days, in order to allow
removal of any such Unacceptable Encumbrance;
5
(ii) waive the removal of any such Unacceptable Encumbrance as a
condition to closing, in which event such Unacceptable Encumbrance shall be
deemed an additional Permitted Encumbrance hereunder; or
(iii) terminate this Agreement, in which case Buyer, Seller and the
Shareholders shall have no further obligations hereunder, except those
which expressly survive any such termination;
provided, however, that, notwithstanding the foregoing, Seller's failure to
-------- -------
cause the removal of the Monetary Encumbrances shall be a material breach of
covenant pursuant to Section 15.1(a)(iii) and, in addition to the options set
forth above, Buyer shall be entitled to exercise the rights and remedies set
forth in Section 15.1. Any encumbrances disclosed by the Commitment and/or the
Survey which are not objected to in writing shall be deemed additional Permitted
Encumbrances hereunder.
13. Amendment to Section 5.6(d) of the Agreement
--------------------------------------------
A new Section 5.6(d) is hereby added to read as follows:
SECTION 5.6. ENVIRONMENTAL MATTERS.
(d) The Buyer, Seller and Shareholders hereby agree to the plan attached
hereto as Schedule 5.6 (the "Environmental Compliance Plan").
6
IN WITNESS WHEREOF, Seller, Buyer and each of the Shareholders have each
executed under seal or caused this Amendment to be duly executed under seal on
their respective behalves by their respective duly authorized officers, all as
of the day and year first above written.
SELLER:
------
ATTEST: X.X. XXXXXXXX QUARRIES, INC., a
Georgia corporation
/s/ Xxxxx X. Xxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------ ---------------------------
Name: Xxxxx X. Xxxxx, Xx. Xxxxxx X. Xxxxxxxx
Title: Secretary President
[CORPORATE SEAL]
SHAREHOLDERS:
-------------
/s/ Xxxxxx X. Xxxxxxxx (SEAL)
--------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxx, Xx. (SEAL)
--------------------------------
Xxxxx X. Xxxxx, Xx., individually; as
Co-Trustee of the Xxxxxxx Xxxxxxxx
Subchapter S Trust U/A December 12,
1994; as Co-Trustee of the Xxxx Xxxxxxxx
Xxxxxx Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Xxxx
Xxxxx Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Xxxxxxx
Xxxxx Xxxxxxxx Subchapter S Trust U/A
May 22, 1995; and as Co-Trustee of the
Xxxxxxxxx Xxxx Xxxxxxxx Subchapter S
Trust U/A February 14, 1997
7
/s/ Xxxxxxx Xxxxxxx, Xx. (SEAL)
--------------------------------
Q. Xxxxxxx Xxxxxxx, Xx., individually;
as Co-Trustee of the Xxxxxxx Xxxxxxxx
Subchapter S Trust U/A December 12,
1994; as Co-Trustee of the Xxxx Xxxxxxxx
Xxxxxx Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Xxxx
Xxxxx Xxxxxx Subchapter S Trust U/A
December 12, 1994; as Co-Trustee of
the Xxxxxxx Xxxxx Xxxxxxxx Subchapter
S Trust U/A May 22, 1995; and as
Co-Trustee of the Xxxxxxxxx Xxxx
Xxxxxxxx Subchapter S Trust U/A
February 14, 1997
/s/ Xxxxxx Xxxxxxxx (SEAL)
--------------------------------
Xxxxxx Xxxxxxxx, as Co-Trustee of the
Xxxxxxx Xxxxxxxx Subchapter S Trust U/A
December 12, 1994 and as Co-Trustee of
the Xxxx Xxxxxxxx Xxxxxx Subchapter S
Trust U/A December 12, 1994
BUYER:
-----
ATTEST: VULCAN MATERIALS COMPANY, a
New Jersey corporation
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxx X. Xxxxxxx, III
----------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxx X. Xxxxxxx, III
Title: Assistant Secretary Title: President, Southeast Division
[CORPORATE SEAL]
8
___________________________________________
SECOND AMENDMENT TO THE
ASSET PURCHASE AGREEMENT AND
PLAN OF REORGANIZATION
BY AND AMONG
X.X. XXXXXXXX QUARRIES, INC.,
THE SHAREHOLDERS OF
X.X. XXXXXXXX QUARRIES, INC.,
AND VULCAN MATERIALS COMPANY
___________________________________________
SECOND AMENDMENT TO THE
ASSET PURCHASE AGREEMENT
AND PLAN OF REORGANIZATION
THIS SECOND AMENDMENT TO THE ASSET PURCHASE AGREEMENT AND PLAN OF
REORGANIZATION (this "Second Amendment") is made and entered into as of this
15th day of January, 1998, by and among X.X. XXXXXXXX QUARRIES, INC., a Georgia
corporation ("Seller"), the shareholders of Seller listed on the signature page
hereto (each a "Shareholder", and collectively, the "Shareholders") and VULCAN
MATERIALS COMPANY, a New Jersey corporation ("Buyer").
W I T N E S S E T H :
---------------------
WHEREAS, the Seller, Shareholders, and Buyer are parties to an Asset
Purchase Agreement and Plan of Reorganization, dated September 29, 1997 (the
"Agreement");
WHEREAS, the Seller, Shareholders, and Buyer are parties to a First
Amendment to the Agreement, dated December 19, 1997 (the "First Amendment"); and
WHEREAS, the Seller, Shareholders, and Buyer hereto agree the January 16,
1998 date in Section 5.3(c) of the Agreement and the First Amendment should be
extended to January 23, 1998;
NOW, THEREFORE, for and in consideration of the above mutual
representations, warranties, covenants and agreements and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto mutually covenant and agree that the date
"January 16, 1998" in Section 5.3(c) of the Agreement and the First Amendment is
hereby deleted and is substituted with the date "January 23, 1998."
-1-
IN WITNESS WHEREOF, Seller, Buyer and each of the Shareholders have each
executed under seal or caused this Amendment to be duly executed under seal on
their respective behalves by their respective duly authorized officers, all as
of the day and year first above written.
SELLER:
------
ATTEST: X.X. XXXXXXXX QUARRIES, INC., a
Georgia corporation
/s/ Xxxxx X. Xxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------- -----------------------------
Name: Xxxxx X. Xxxxx, Xx. Xxxxxx X. Xxxxxxxx
Title: Secretary President
[CORPORATE SEAL]
SHAREHOLDERS:
-------------
/s/ Xxxxxx X. Xxxxxxxx (SEAL)
----------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxx, Xx. (SEAL)
----------------------------------
Xxxxx X. Xxxxx, Xx., individually; as
Co-Trustee of the Xxxxxxx Xxxxxxxx
Subchapter S Trust U/A December 12,
1994; as Co-Trustee of the Xxxx Xxxxxxxx
Xxxxxx Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Xxxx
Xxxxx Xxxxxx Subchapter S Trust U/A
December 12, 1994; as Co-Trustee of
the Xxxxxxx Xxxxx Xxxxxxxx Subchapter
S Trust U/A May 22, 1995; and as
Co-Trustee of the Xxxxxxxxx Xxxx
Xxxxxxxx Subchapter S Trust U/A
February 14, 1997
-2-
/s/ Xxxxxxx Xxxxxxx, Xx. (SEAL)
----------------------------------
Q. Xxxxxxx Xxxxxxx, Xx., individually;
as Co-Trustee of the Xxxxxxx Xxxxxxxx
Subchapter S Trust U/A December 12,
1994; as Co-Trustee of the Xxxx Xxxxxxxx
Xxxxxx Subchapter S Trust U/A December
12, 1994; as Co-Trustee of the Xxxx
Xxxxx Xxxxxx Subchapter S Trust U/A
December 12, 1994; as Co-Trustee of
the Xxxxxxx Xxxxx Xxxxxxxx Subchapter
S Trust U/A May 22, 1995; and as
Co-Trustee of the Xxxxxxxxx Xxxx
Xxxxxxxx Subchapter S Trust U/A
February 14, 1997
/s/ Xxxxxx Xxxxxxxx (SEAL)
----------------------------------
Xxxxxx Xxxxxxxx, as Co-Trustee of the
Xxxxxxx Xxxxxxxx Subchapter S Trust U/A
December 12, 1994 and as Co-Trustee of
the Xxxx Xxxxxxxx Xxxxxx Subchapter S
Trust U/A December 12, 1994
BUYER:
-----
ATTEST: VULCAN MATERIALS COMPANY, a
New Jersey corporation
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxx X. Xxxxxxx, III
----------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxx X. Xxxxxxx, III
Title: Assistant Secretary Title: President, Southeast Division
[CORPORATE SEAL]
-3-
