STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made and entered into as of June
2, 1999, by and between ISG Resources, a Utah corporation, having a business
address at 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxx Xxxx, Xxxx 00000
("Buyer"), and Xxxx Carbon, Inc., a Kansas corporation, having a business
address at 0000 Xxxx 00xx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxx 00000 ("Seller");
RECITALS:
A. Seller is the sole shareholder of all the issued and outstanding shares of
capital stock of Irvine Fly Ash, Inc., an Ohio corporation, having its
principal business address at 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000
(the "Company"); and
B. Seller desire to sell, and Buyer desire to purchase, all of the issued and
outstanding shares (the "Shares") of capital stock of the Company for the
consideration and on the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings specified
or referred to in this Section 1:
"Adjustment Amount" has the meaning as defined in Section 2.5.
"Affiliated Group" shall mean an "affiliated group" as defined in Section
1504(a) of the IRC.
"Applicable Contract" means any Contract (a) under which the Company has or may
acquire any rights, (b) under which the Company has or may become subject to any
obligation or liability, or (c) by which the Company or any of the assets owned
or used by it is or may become bound.
"Best Efforts" means the efforts that a prudent person desirous of achieving a
result would use in similar circumstances to ensure that such result is achieved
as expeditiously as possible.
"Breach" means a breach of a representation, warranty, covenant, obligation, or
other provision of this agreement or any instrument delivered pursuant to the
Agreement will be deemed to have occurred if there is or has been (a) any
material inaccuracy in or breach of, or any material failure to perform or
comply with, such representation, warranty, covenant, obligation, or other
provision except to the extent that any such representation, warranty, covenant,
obligation or other provision may be limited or qualified by any other
representation, warranty, covenant, obligation or other provision contained in
the Agreement), or (b) any material claim (by and Person) or other occurrence or
circumstance that is or was materially inconsistent with such representation,
warranty, covenant, claim, occurrence, or circumstance, unless otherwise limited
or qualified as set forth in the Disclosure Letter (as hereinafter defined).
"Buyer" has the meaning as defined in the first paragraph of the Agreement.
"Closing" has the meaning as defined in Section 2.3.
"Closing Date" means the date and time as of which the Closing actually takes
place.
"Company" has the meaning as defined in the Recitals of the Agreement.
"Consent," means any approval, consent, ratification, waiver, or other
authorization (including any Governmental Authorization).
"Contemplated Transactions" means all of the transactions contemplated by this
Agreement, including:
(b) the sale of the Shares by Seller to Buyer;
(c) the performance by Buyer and Seller of their respective covenants and
obligations under this Agreement;
(d) Buyer's acquisition and ownership of the Shares and exercise of control
over the Company; and
(e) the Buyer and Seller entering into that certain Slag Sale and Purchase
Agreement dated as of the Closing Date, which shall be duly executed
and delivered between the parties in accordance with the form attached
hereto as Exhibit 2.4(c) and made a part hereof by reference.
"Contract" means any agreement, contract, obligation, promise, or undertaking
(whether written or oral and whether express or implied) that is legally
binding.
"Damages" has the meaning as defined in Section 10.2.
"Disclosure Letter" means the disclosure letter delivered by Seller to Buyer
concurrently with the execution and delivery of the Agreement.
"Encumbrance" means any charge, claim, community property interest, condition,
equitable interest, lien, option, pledge, security interest, right of first
refusal, or restriction of any kind, including any restriction on use, voting,
transfer, receipt of income, or exercise of any other attribute of ownership.
"Environment" means soil, land surface or subsurface strata, surface water
(including navigable waters, ocean waters, streams, ponds, drainage basins, and
wetlands), ground-waters, drinking water supply, stream sediments, ambient air
(including indoor air), plant and animal life, and any other environmental
medium or natural resource.
"Environmental, Health, and Safety Liabilities" means any cost, damages,
expense, liability, obligation, or other responsibility arising from or under
Environmental Law or Occupational Safety and Health Law and consisting of or
relating to:
(b) any environmental, health, or safety matters or conditions (including
on-site contamination, occupational safety and health, and regulation of
chemical substances or products);
(c) fines, penalties, judgments, awards, settlements, legal or administrative
proceedings, damages, losses, claims, demands and response, investigative,
remedial, or inspection costs and expenses arising under Environmental Law
or Occupational Safety and Health Law;
(d) financial responsibility under Environmental Law or Occupational Safety and
Health Law for cleanup costs or corrective action, including any
investigation, cleanup, removal, containment, or other remediation or
response actions ("Cleanup") required by applicable Environment Law or
Occupational Safety and Health Law (whether or not such Cleanup has been
required or requested by any Governmental Body or any other Person) and for
any natural resources damages; or
(e) any other compliance, corrective, investigative, or remedial measures
required under Environmental Law or Occupational Safety and Health Law.
The terms "removal," "remedial," and "response action," include the types of
activities covered by the United States Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. ss. 9601 et seq., as amended
("CERCLA").
"Environmental Law" means any Legal Requirement that requires or relates to:
(b) advising appropriate authorities, employees, and the public of intended or
actual releases of pollutants or hazardous substances or materials,
violations of discharge limits, or other prohibitions and of the
commencements of activities, such as resource extraction or construction,
that could have significant impact on the Environment;
(c) preventing or reducing to acceptable levels the release of pollutants or
hazardous substances or materials into the Environment;
(d) reducing the quantities, preventing the release, or minimizing the
hazardous characteristics of wastes that are generated;
(e) assuring that products are designed, formulated, packaged, and used so that
they do not present unreasonable risks to human health or the Environment
when used or disposed of;
(f) protecting resources, species, or ecological amenities;
(g) reducing to acceptable levels the risks inherent in the transportation of
hazardous substances, pollutants, oil, or other potentially harmful
substances;
(h) cleaning up pollutants that have been released, preventing the threat of
release, or paying the costs of such cleanup or prevention; or
(i) making responsible parties pay private parties, or groups of them, for
damages done to their health or the Environment, or permitting
self-appointed representatives of the public interest to recover for
injuries done to public assets.
"ERISA" means the Employee Retirement Income Security Act of 1974 or any
successor law, and regulations and rules issued pursuant to ERISA or any
successor law.
"Facilities" means any real property, leaseholds, or other interests currently
or formerly owned or operated by the Company and any buildings, plants,
structures, or equipment (including motor vehicles, tank cars, and rolling
stock) currently or formerly owned or operated by the Company.
"GAAP" means generally accepted United States accounting principles, applied on
a basis consistent with the basis on which the Interim Balance Sheet and the
other financial statements referred to in Section 3.4 were prepared.
"Governmental Authorization" means any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body of pursuant to any
Legal Requirement.
"Governmental Body" means any of the following:
(b) federal, state, local, municipal, foreign, or other government; or
(c) governmental or quasi-governmental authority of any nature (including any
governmental agency, branch, department, official, or entity and any court
or other tribunal).
"Hazardous Activity" means the distribution, generation, handing, manufacturing,
processing, production, refinement, Release, storage, transfer, transportation,
treatment, or use of Hazardous Material in, on, under, about, or from the
Facilities or any part thereof into the Environment, and any other act,
business, operation, or thing that increases the danger, or risk of danger, or
posses an unreasonable risk of harm to persons or property on or off the
Facilities, or that may affect the value of the Facilities or the Company,
except the receipt, handling, transportation, disposal and sale of fly ash by
the Company in the Ordinary Course of Business.
"Hazardous Material" means any waste or other substance that is listed, defined,
designated, or classified as hazardous, radioactive, or toxic or a pollutant or
a contaminant under or pursuant to any Environmental Law, including any
admixture or solution thereof, and specifically including petroleum and all
derivatives thereof or synthetic substitutes therefor and asbestos or
asbestos-containing material, except the receipt, handling, transportation,
disposal and sale of fly ash by the Company in the Ordinary Course of Business.
"Independent Auditor" means KPMG Peat Marwick, LLP
"Intellectual Property Assets" has the meaning as defined in Section 3.22.
"Interim Balance Sheet" has the meaning as defined in Section 3.4.
"IRC" means the Internal Revenue Code of 1986, as amended, or any successor law,
and regulations issued by the IRS pursuant to the Internal Revenue Code or any
successor law.
"IRS" means the United States Internal Revenue Service or any successor agency.
"Knowledge" means that a Person will be deemed to have "Knowledge" of a
particular fact or other matter if any individual who is serving as a director,
officer, partner, executor, or trustee of such Person (or in any similar
capacity) is actually aware of such fact or other matter.
"Legal Requirement" means any federal, state, local municipal law, ordinance,
principle of common law, regulation, or statue.
"Occupational Safety and Health Law" means any Legal Requirement designed to
provide safe and healthful working conditions and to reduce occupational safety
and health hazards.
"Order" means any award, decision, injunction, judgement, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
"Ordinary Course of Business" means an action taken by a Person will be deemed
to have been taken in the "Ordinary Course of Business" only if:
(b) such action is consistent with the past practices of such Person and is
taken in the ordinary course of the normal day-to-day operations of such
Person; and
(c) such action is not required to be authorized by the board of directors of
such Person (or by any Person or group of Persons exercising similar
authority) and is not required to be specifically authorized by the parent
company (if and) of such person.
"Organizational Documents" means (a) the articles or certificate of
incorporation and the bylaws of the Company, and (b) any amendments to any of
the foregoing.
"Person" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union, or other entity
or Governmental Body.
"Plan" has the meaning as defined in Section 3.13.
"Proceeding" means any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
"Related Person" means with respect to a specified Person other than an
individual:
(b) any Person that directly or indirectly controls, is directly or indirectly
controlled by, or is directly or indirectly under common control with such
specified person;
(c) any Person that holds a Material Interest in such specified Person;
(d) each Person that serves as a director, officer, partner, executor, or
trustee of such specified Person (or in a similar capacity);
(e) any Person in which such specified Person holds a Material Interest; and
(f) any Person with respect to which such specified Person serves as a general
partner of a trustee (or in a similar capacity).
For purposes of this definition, "Material Interest" means any direct or
indirect beneficial ownership of voting securities or other voting interest in a
Person or equity securities or other equity interests in a Person.
"Release" means any spilling, leaking, emitting, discharging, depositing,
escaping, leaching, dumping, or other releasing into the Environment, whether
intentional or unintentional.
"Representative" means, with respect to a particular Person, any director,
officer, employee, agent, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial advisors.
"Seller" has the meaning as defined in the first paragraph of this Agreement.
"Seller' Releases" has the meaning as defined in Section 2.4.
"Shares" has the meaning as defined in the Recitals of this Agreement.
"Subsidiary" means, with respect to any Person (the "Owner"), any corporation or
other Person of which securities or other interests having the power to elect a
majority of that corporation's or other Person's board of directors or similar
governing body, or otherwise having the power to direct the business and
policies of that corporation or other Person are held by the Owner or one or
more of its Subsidiaries; when used without reference to a particular Person,
"Subsidiary" means a Subsidiary of the Company.
"Taxes" shall mean all taxes, however denominated, including any interest or
penalties that may become payable in respect thereof, imposed by any federal,
state, local, or foreign government or any agency or political subdivision of
any such government, which taxes shall include, without limiting the generality
of the foregoing, all income taxes (including the alternative minimum tax and
the environmental tax as defined in Section 55 and 59A of the IRC), payroll and
employee withholding taxes, occupation taxes, real and personal property taxes,
stamp taxes, transfer taxes, severance taxes, value added taxes, taxes measured
by or imposed on capital, levies, imposts, duties, work's compensation, and
other obligations of the same or similar nature, whether arising before or after
the Closing Date.
"Tax Return" means any return (including any information return), report,
statement, schedule, notice, form, or other document or information filed with
or submitted to, or required to be filed with or submitted to, any Governmental
Body in connection with the determination, assessment, collection, or payment of
any Tax or in connection with the administration, implementation, or enforcement
of or compliance with any Legal Requirement relating to any Tax.
"Threat of Release" means a substantial likelihood of a Release that may require
action in order to prevent or mitigate damage to the Environment that may result
from such Release.
"Threatened" means that a claim, Proceeding, dispute, action, or other matter
will be deemed to have been "Threatened" if any demand or statement has been
made (orally or in writing) or any notice has been given (orally or in writing),
or if any other event has occurred or any other circumstances exist, that would
lead a prudent Person to conclude that such a claim, Proceeding, dispute,
action, or other matter is likely to be asserted, commenced, taken, or otherwise
pursued in the future.
7. SALE AND TRASFER OF SHARES; CLOSING
7.1 SHARES
Subject to the terms and conditions of the Agreement, at the Closing, Seller
will sell, transfer and deliver the Shares to Buyer, and Buyer will purchase the
Shares from Seller.
7.2 PURCHASE PRICE
The purchase price for the Shares will be $6,000,000.00 (the "Purchase Price"),
which shall be increased or decreased after the Closing Date by the Adjustment
Amount determined in accordance with the provisions of Sections 2.5 and 2.6
hereof.
7.3 CLOSING
The purchase and sale (the "Closing") provided for in this Agreement will take
place at the offices of Seller located at 0000 Xxxx 00xx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxx 00000, at 10:00 a.m. (local time) on or before the 2nd day of June, 1999,
or at such other time and place as the parties may agree in writing. Subject to
the provisions of Section 9, failure to consummate the purchase and sale
provided for in the Agreement on the date and time and at the place determined
pursuant to this Section 2.3 will not result in the termination of the Agreement
and will not relieve any party of any obligation under this Agreement.
7.4 CLOSING OBLIGATIONS
At the Closing:
(b) Seller will deliver to Buyer:
(c) certificates representing the Shares, duly endorsed (or accompanied by duly
executed stock powers) for transfer to Buyer;
(ii)
(iii)a certificate executed by Seller representing and warranting to Buyer each
of Seller's representations and warranties in this Agreement was accurate
in all respects as of the date of this Agreement and is accurate in all
respects as of the Closing Date as if made on the Closing Date (giving full
effect to any disclosures that were delivered by Seller to Buyer prior to
the Closing Date in accordance with Section 5.5);
(iv)
(v) a certificate, dated as of the Closing Date and executed by the Controller
of the Seller, substantially in the form and to the effect set forth in
Exhibit 2.4(iii) hereof;
(vi)
(vii)the resignation of all current officers and directors of the Company,
effective as of the Closing Date; and
(viii)
(ix) a copy of the Disclosure Letter, updated and current through the Closing
Date.
(x)
(xi) Buyer will deliver to Seller:
(xii)
(xiii) the amount of the Purchase Price by wire transfer to the bank account
specified by Seller; and
(xiv)a certificate executed by Buyer to the effect that, except as otherwise
stated in such certificate, each of buyer's representations and warranties
in the Agreement was accurate in all respects as of the date of the
Agreement and is accurate in all respects as of the Closing Date as if made
on the Closing Date; and
(o) Buyer and Xxxx Oil Marketing, S.A., and affiliate of Seller, shall enter
into that certain Slag Sale and Purchase agreement dated as of the Closing
Date, which shall be duly executed and delivered between the parties in
accordance with the form attached hereto as Exhibit 2.4(c) and made a part
hereof by reference
15.1 ADJUSTMENT AMOUNT
The Adjustment Amount (which may be a positive or negative number) will be equal
to (a) any changes in the net assets of the Company for the period between the
Interim Balance Sheet (as defined in Section 3.4) and the Closing Financial
Statements (as defined in Section 2.6), as determined in accordance with GAAP,
plus (b) interest on any such changes in the net assets of the Company, which
will be paid in accordance with the applicable provisions of Section 2.6(b).
15.2 ADJUSTMENT PROCEDURE
(b) within a period of six days after the Closing Date, Seller will cause the
Independent Auditor to prepare and deliver to Buyer an audited balance
sheet and supporting footnotes (_Closing Financial Statement") of the
Company as of May 31, 1999. If within thirty days following delivery of the
Closing Financial Statements, Buyer has not given Seller notice of its
objection to the Closing Financial Statements (such notice must contain a
statement of the basis of Buyer's objection), then the net assets of the
Company reflected in the Closing Financial Statements will be used in
computing the Adjustment Amount. If Buyer gives such notice of objection,
than the issues in dispute will be submitted to Ernst & Young, LLP,
certified public accountants (the "Accountants"), for resolution. If issues
in dispute are submitted to the Accountants for resolution, (i) each party
will furnish to the Accountants such work papers and other documents and
information relating to the disputed issues as the Accountants may request
and are available to that party (or its independent public accountants),
and will be afforded the opportunity to present to the accountants any
material relating to the determination and to discuss the determination
with the Accountants; (ii) the determination by the Accountants, as set
forth in a notice delivered to both parties by the accountants, will be
binding and conclusive on the parties, except for fraud or obvious errors;
and (iii) Buyer and Seller will each bear 50% of the fees of the
Accountants for such determination.
(c) On the tenth business day following the final determination of the
Adjustment Amount, if the Purchase price (as increased or decreased by the
Adjustment Amount( is greater than the payment made pursuant to Section
2.4(b)(i), Buyer will pay the difference to Seller, and if the Purchase
price is less than such payment, Seller will pay the difference to Buyer.
All payments will be made together with interest at the annual rate of 8%
compounded daily beginning on the Closing Date and ending on the date of
payment. Payments must be made in immediately available funds. Payments to
Seller must be made in the manner set forth in Section 2.4(b)(i). Payments
to Buyer must be made by wire transfer to such bank account as Buyer will
specify.
4. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
4.1 ORGANIZATION AND GOOD STANDING
(b) The Company is a corporation duly organized, validly existing, and in good
standing under the laws of the State of Ohio, with full corporate power and
authority to conduct business as it is now being conducted, to own or use
the properties and assets that it purports to own or use, and to perform
all its obligations under Applicable Contracts. Except as set forth in Part
3.1 of the Disclosure Letter, the Company is duly qualified to do business
as a foreign corporation and is in good standing under the laws of each
state or other jurisdiction on which either the ownership or use of the
properties owned or used by it, or the nature of the activities conducted
by it, requires such qualification.
(c) Seller has delivered to Buyer copies of the Organizational Documents of the
Company, as currently if effect.
3.1 AUTHORITY; NO CONFLICT
(b) This Agreement constitutes the legal, valid, and binding obligation of
Seller, enforceable against Seller in accordance with its terms. Seller has
the absolute and unrestricted right, power, authority, and capacity to
execute and deliver this Agreement and to perform its obligations under
this agreement.
(b) Except as set forth in Part 3.2 of the Disclosure Letter, neither the
execution and delivery of this Agreement nor the consummation or
performance of any of the Contemplated Transactions will, directly or
indirectly (with or without notice or lapse of time):
(i) contravene, conflict with, or result in a violation of (A) any provision of
the Organizational Documents of the Company, or (B) any resolution adopted
by the board of directors or the stockholders of the Company;
(ii) contravene, conflict with, or result in a violation of, or give any
Governmental Body or other Person the right to challenge any of the
Contemplated Transactions or to exercise any remedy, or obtain any relief
under, any Legal Requirement or any Order to which the Company or the
Seller, or any of the assets owned or used by the Company, may be subject;
(iii)contravene, conflict with, or result in a violation of any of the terms or
requirements of, or give any Governmental Body the right to revoke,
withdraw, suspend, cancel, terminate, or modify, any Governmental
Authorization that is held by the Company or that otherwise relates to the
business of, or any of the assets owned or used by, the Company;
(iv) contravene, conflict with, or result in a violation or breach of any
provision of, or give any Person the right to declare a default or exercise
any remedy under, or to accelerate the maturity or performance of, or to
cancel, terminate, or modify, any Applicable Contract; or
(v) result in the imposition or creation of any Encumbrance upon or with
respect to any of the assets owned or used by the Company.
Except as set forth in Part 3.2 of the Disclosure Letter, neither the Seller
nor the Company is or will be required to give any notice to or obtain any
Consent from any Person in connection with the execution and delivery of this
Agreement or the consummation or performance of any of the Contemplated
Transactions.
3.3 CAPITALIZATION
The authorized equity securities of the Company consist of 750 shares of common
stock, without par value, of which 500 shares are issued and outstanding and
constitute the Shares. Seller is and will be on the Closing Date the record and
beneficial owner and holder of the Shares, free and clear of all Encumbrances.
No legend or other reference to any purported Encumbrance appears upon any
certificate representing equity securities of the Company. All of the
outstanding equity securities of the Company have been duly authorized and
validly issued and are fully paid and non-assessable. There are no Contracts
relating to the issuance, sale, or transfer of any equity securities or other
securities of the Company. None of the outstanding equity securities or other
securities of the Company was issued in violation of any Legal Requirement. The
Company does not own, or have any Contract to acquire, any equity securities or
other securities of any Person (other than Company) or any direct or indirect
equity or ownership interest in any other business.
3.4 FINANCIAL STATEMENTS
Seller has delivered to Buyer an unaudited balance sheet of the Company as at
April 30, 1999 (the "Interim Balance Sheet") and the related unaudited statement
of income for the six (6) months then ended. Such financial statements fairly
present the financial condition and the results of operations of the Company at
the respective date of and for the period referred to in such financial
statements, all in accordance with GAAP, subject, in the case of interim
financial statements, to normal recurring yearend adjustments (the effect of
which will not, individually or in the aggregate, be materially adverse); the
financial statements referred to in this Section 3.4 reflect the consistent
application of such accounting principles throughout the periods involved,
except as disclosed in any notes to such financial statements. No financial
statements of any Person other than the Company are required by GAAP to be
included in the financial statements of the Company.
3.5 BOOKS AND RECORDS
Since November 1, 1997, the books of account, minute books, stock record books,
and other records of the Company, all of which have been made available to
Buyer, are complete and correct and have been maintained in accordance with
sound business practices, including the maintenance of an adequate system of
internal controls. Since November 1, 1997, the minute books of the Company
contain accurate and complete records of all meetings held of, and corporate
action taken by, the stockholder and the Board of Directors, and no meeting of
any such stockholder or Board of Directors has been held for which minutes have
not been prepared and are not contained in such minute books. At the Closing,
all of those books and records will be in the possession of the Company.
3.6 TITLE TO PROPERTIES; ENCUMBRANCES
(a) Part 3.6 of the Disclosure Letter contains a complete and accurate list of
all real property, leaseholds, or other interests therein owned by the
Company. Seller has delivered or made available to Buyer copies of the
deeds, leases and other instruments by which the Company acquired such real
property and interests, and copies of all title insurance policies,
opinions, abstracts, and surveys in the possession of Seller or the Company
and relating to such property or interests. The Company owns (with good and
marketable title in the case of real property, subject only to the matters
permitted by the following sentence) all the properties and assets (whether
real, personal, or mixed and whether tangible or intangible) that they
purport to own in connection with the facilities and other assets owned or
operated by the Company or reflected as owned in the books and records of
the Company, including all of the properties and assets reflected in the
Interim Balance Sheet (except for assets held under capitalized leases
disclosed or not otherwise required to be disclosed in Part 3.6 of the
Disclosure Letter and personal property sold since the date of the Interim
Balance Sheet in the Ordinary Course of Business), and all of the
properties and assets purchased or otherwise acquired by the Company since
the date of the Interim Balance Sheet (except for personal property
acquired and sold since the date of the Interim Balance Sheet in the
Ordinary Course of Business) are listed in Part 3.6 of the Disclosure
Letter. All material properties and assets reflected in the Interim Balance
Sheet are free and clear of all Encumbrances except, with respect to all
such properties and assets, (i) mortgages or security interests shown on
the Interim Balance Sheet as securing specified liabilities or obligations,
with respect to which no default (or event that, with notice or lapse of
time or both, would constitute a default) exists, (ii) mortgages or
security interests incurred in connection with the purchase of property or
assets after the date of the Interim Balance Sheet (such mortgages and
security interests being limited to the property or assets so acquired),
with respect to which no default (or event that, with notice or lapse of
time or both, would constitute a default) exists, (iii) liens for current
taxes not yet due, and (iv) with respect to real property, minor
imperfections of title, if any, none of which is substantial in amount,
materially detracts from the value or impairs the use of the property
subject thereto, or impairs the operations of the Company, and zoning laws
and other land use restrictions that do not impair the present or
anticipated use of the property subject thereto.
(b) The Company has a valid and subsisting leasehold estate in and the right to
quiet enjoyment to any leased real property for the full term of the lease
thereof. Each real property lease is a legal, valid and binding agreement,
enforceable in accordance with its terms, of the Company and of each other
Person that is a party thereto, and except as set forth in Part 3.6 of the
Disclosure Letter, there is no, and neither the Seller nor the Company has
knowledge of any, or has received any, notice of any default (or any
condition or event which, after notice or lapse of time or both, would
constitute a default) thereunder. The Company has not assigned, sublet,
transferred, hypothecated or otherwise disposed of its interest in any real
property lease. No penalties are accrued and unpaid under any real property
lease.
3.7 CONDITION AND SUFFICIENCY OF ASSETS
The equipment of the Company is in good operating condition and repair, and
adequate for the uses to which it is being put, and none of the equipment is in
need of maintenance or repairs except for ordinary, routine maintenance and
repairs that are not material in nature or cost. The equipment of the Company is
sufficient for the continued conduct of the Company's business after the Closing
in substantially the same manner as conducted prior to the Closing.
3.8 ACCOUNTS RECEIVABLE
All accounts receivable of the Company that are reflected on the Interim Balance
Sheet or on the accounting records of the Company as of the Closing Date
(collectively, the "Accounts Receivable") represent or will represent valid
obligations arising from sales actually made or services actually performed in
the Ordinary Course of Business. Unless paid prior to the Closing Date, the
Accounts Receivable are or will be as of the Closing Date current and
collectible net of the respective reserves shown on the Interim Balance Sheet or
on the accounting records of the Company as of the Closing Date (which reserves
are adequate and calculated consistent with past practice and, in the case of
the reserve as of the Closing Date, will not represent a greater percentage of
the Accounts Receivable as of the Closing Date than the reserve reflected in the
Interim Balance Sheet represented by the Accounts Receivable reflected therein
and will not represent a material adverse change in the composition of such
Accounts Receivable in terms of aging). Subject to such reserves, each of the
Accounts Receivable either has been or will be collected in full, without any
setoff, within ninety days after the day on which it first becomes due and
payable. There is no contest, claim, or right of setoff, other than returns in
the Ordinary Course of Business, under any Contract with any obligor of an
Accounts Receivable relating to the amount or validity of such Accounts
Receivable.
3.9 INVENTORY
At the time of Closing, the business assets and other property of the Company
shall not include any inventory of fly ash or any other dry bulk material.
3.10 NO UNDISCLOSED LIABILITIES
To the Knowledge of Seller and the Company, except as otherwise provided in
this Agreement or as set forth in Part 3.10 of the Disclosure Letter (or any
other part of the Disclosure Letter) or as otherwise included as part of any
Applicable Contract entered into by the Company in the Ordinary Course of
Business, the Company has no undisclosed liabilities or obligations of any
nature (whether absolute, accrued, contingent, or otherwise), except for (a)
liabilities or obligations reflected or reserved against in the Interim Balance
Sheet (including the related unaudited statement of income) or the Closing
Financial Statements and (b) liabilities or obligations otherwise incurred by
the Company in the Ordinary Course of Business.
3.11 TAXES
(a) The Company has filed or caused to be filed all Tax Returns that are or
were required to be filed pursuant to applicable Legal Requirements, except
where the failure to file Tax Returns would not have a material adverse
effect on the financial condition of the Company. The Company has paid, or
made provision for the payment of, all Taxes that have or may have become
due pursuant to those Tax Returns or otherwise, or pursuant to any
assessment received by Seller or the Company, except such Taxes, if any, as
are listed in Part 3.11 of the Disclosure Letter and are being contested in
good faith and as to which adequate reserves have been provided in the
Interim Balance Sheet.
(b) The United States federal and state income Tax Returns of the Company have
been audited by the IRS or relevant state tax authorities or are closed by
the applicable statute of limitations for all taxable years through
December 31, 1992. All deficiencies proposed as a result of any such audits
have been paid, reserved against, settled, or are being contested in good
faith by appropriate proceedings. Except as described in Part 3.11 of the
Disclosure Letter, the Company has not given or been requested to give
waivers or extensions (or is or would be subject to a waiver or extension
given by any other Person) of any statute of limitations relating to the
payment of Taxes of the Company or for which the Company may be liable.
(c) The charges, accruals, and reserves with respect to Taxes on the respective
books of the Company are adequate and are at least equal to the Company's
liability for Taxes. There exists no proposed tax assessment against the
Company except as disclosed in the Interim Balance Sheet or in Part 3.11 of
the Disclosure Letter. All Taxes that the Company is or was required by
Legal Requirements to withhold or collect have been duly withheld or
collected and, to the extent required, have been paid to the proper
Governmental Body or other Person.
(d) To the Knowledge of Seller and the Company, all Tax Returns filed by (or
that include on a consolidated basis) the Company are true, correct, and
complete. Any tax sharing agreement between the Seller and the Company
shall be terminated as of the Closing Date and any such agreement will have
no further effect for any taxable year (whether the current year, a future
year or any past year).
(e) There are no liens for Taxes (other than current Taxes which are not yet
due and payable) upon any of the assets or property of the Company.
(f) The Contemplated Transactions described in this Agreement are not subject
to the tax withholding provisions of Subchapter A of Chapter 3 or Section
3406 of the IRC or any other Legal Requirement.
(g) All of the assets or other property with respect to which the Company
claims any depreciation, amortization or similar expense for Tax purposes
is owned by the Company.
(h) Seller, with the cooperation of Buyer and the Company, shall be responsible
for the timely filing (taking into account any extensions received from the
relevant Tax Authorities) of all Returns required by law to be filed by the
Company for periods ending on or prior to the Closing Date, which Returns
shall be true, correct and complete in all material respects, and all Taxes
indicated as due and payable on such Tax Returns shall be paid or will be
paid by Seller as and when required by law, except to the extent such Taxes
have been accrued on the Closing Financial Statements of the Company as of
the Closing Date.
(i) Any Tax refunds that are received by Buyer or the Company and any amounts
credited against taxes to which Buyer or the Company become entitled, that
relate to Tax periods or portions thereof ending on or before the Closing
Date, shall be for the account of Seller, and Buyer shall pay to Seller any
such refund or the amount of any such refund or the amount of any such
credit within a period of fifteen (15) days after receipt or entitlement
thereto. In addition, to the extent that a claim for refund or a proceeding
results in a payment or credit against any Tax by a taxing authority to the
Buyer or the Company of any amount accrued on the Closing Financial
Statements, the Buyer shall pay such amount to Seller within fifteen (15)
days after receipt or entitlement thereto.
(j) At Seller's request, the Buyer will cause the Company to make and/or join
with the Seller or Seller's affiliated group in making any election by
Seller or Seller's affiliated group that does not have a material adverse
impact on the Company or Buyer in any Tax period following the Closing
Date.
(k) In order to appropriately apportion any Taxes relating to a period that
includes the Closing Date, the Seller and the Buyer will, to the extent
permitted by applicable law, elect with the relevant taxing authority to
treat for all purposes the Closing Date as the last day of a taxable period
of the Company (a "short period"), and such period shall be treated as a
Short Period and a period ending prior to or on the Closing Date for
purposes of this Agreement.
(l) In any case where applicable law does not permit the Company to treat the
Closing date as the last day of a Short Period, then for purposes of this
Agreement, the portion of each Tax that is attributable to the Company's
operations which would have qualified as a Short Period if such election
had been permitted by applicable law (an "Interim Period") shall be (A) in
the case of a Tax that is not based on net or gross income, the total
amount of such Tax for the period in question multiplied by a fraction, the
numerator of which is the number of days in the Interim Period, and the
denominator of which is the total number of days in such period, and (B) in
the case of a Tax that is based on net or gross income, the Tax that would
be due with respect to the Interim, Period if such Interim Period were a
Short Period shall be determined based upon an interim closing of the books
of the Company.
(m) Seller, at its expense, shall have the exclusive authority to represent the
Company before the IRS or any other governmental agency or authority or any
court regarding any Tax Return and/or Taxes paid by the Company for periods
ending on or before the Closing Date, including, but not limited to (A) the
exclusive control of any response to any examination by the IRS of any
federal tax returns of the Seller's affiliate group in respect of the
operation of the Company for such Periods or any examinations of a unitary
state return of Seller's affiliate group; and (B) the exclusive control
over any contest of any issue to the extent included in any return of the
Seller's affiliated group through final determination, including, but not
limited to, whether and in what forum to conduct such contest, and whether
and on what basis to settle such contest.
(n) Buyer agrees to retain all of the Company's records regarding any of the
Company's tax returns filed by law for all periods ending on or prior to
the Closing Date. Buyer shall not destroy any of the Company's records
covering periods prior to the Closing Date without the prior written
consent in each instance of the Seller.
(o) In general, Seller and Buyer agree to cooperate with each other and their
respective representatives in a prompt and timely manner, in connection
with the preparation and filing of, and any administrative or judicial
proceeding involving, any Tax return or information filed or required to be
filed by or for Seller or any member of Seller's affiliated group for any
period ending on or before the Closing Date, or the Buyer's affiliated
group or any member thereof for any period ending after the Closing Date,
with respect to any item or issue affecting the property or operations of
the Company. Such cooperation shall include, but not be limited to, the
execution and delivery to Seller by Buyer or any of its affiliated group
(including the Company) of any waiver of the statute of limitations or any
power of attorney required to allow Seller and its counsel to represent the
Company in any controversy which the Seller shall have the right to control
pursuant to this Section 3.11, the prompt and timely filing of appropriate
claims for any refund on IRS Form 1139 (or any successor thereto), and
making available to the other parties, during normal business hours, all
books, records (including, but not limited to, working papers and
schedules) and information, officers and employees (without substantial
interruption of employment) reasonably requested and necessary or useful in
connection with any tax inquiry, audit, investigation, dispute, litigation
or any other matter requiring such books, records, information, officers or
employees for any reasonable business purpose. Notwithstanding the
foregoing, neither party shall be required to furnish to the other the
federal income tax returns or drafts thereof (except as otherwise expressly
provided in this Agreement) of Seller's affiliated group or Buyer's
affiliated group, as the case may be, for any period, except that each
party shall furnish to the other the applicable portions of such returns
reporting the operations of the Company and the applicable portions of all
reports relating to the examination by the IRS or any other federal, state,
local or foreign governmental agency relating to the examination of such
returns.
(p) In order to assist Seller in complying with its obligations pursuant to
this Section 3.11, within 180 days following the Closing Date, Buyer shall
furnish to Seller any information that may be necessary for Seller to
prepare a draft federal income Tax return reporting the operations of the
Company for the Short Period. Such draft return shall be prepared without
regard to the items of income, gain, deduction, loss or credit of the other
members of the Seller's affiliated group. All items of income, gain,
deduction, loss and credit included in such draft return shall be reported
therein on a basis consistent with the reporting of such items (or
substantially similar items by the Company in prior federal income tax
returns of Seller's affiliated group), except to the extent otherwise
required by the IRC or as a result of a change in factual circumstances.
3.12 NO MATERIAL ADVERSE CHANGE
Since the date of the Interim Balance Sheet, there has not been any material
adverse change (or any event or development which, individually or together with
other such events, could reasonably be expected to result in a material adverse
change) in the business, operations, properties, prospects, assets, or condition
of the Company, and no event has occurred or circumstance exists that may result
in such a material adverse change.
3.13 EMPLOYEE BENEFITS, ETC.
(a) Subject to the provisions of Section 3.20, as of the Closing Date, the
Company shall terminate its employment relationship with all of its
employees and the Seller shall be responsible for (A) the payment of all
wages, severance and other remuneration due to such employees with respect
to their employment services for the Company prior to the Closing Date,
including accrued vacation, (B) the provision of health plan continuation
coverage for such employees in accordance with the requirements of the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and
Sections 601 through 609 of ERISA ("COBRA"), and (C) the handling of
relationships with and any liabilities to such employees as a result of any
claims, demands, suits, proceedings and the like arising prior to the
Closing Date, or obligations triggered by, or resulting from, the
Contemplated Transactions, except such liabilities as may arise from any
employmentrelated decisions of Buyer with respect to such employees
(b) As of the Closing Date, Buyer shall cause the Company to make available to
the employees of the Company hired on or after the Closing Date such
benefit plans and programs as shall be comparable to those offered to
similarly situated employees of the Company prior to the Closing Date. Such
employees shall be given credit for all years of service recognized by the
Company under its current employee benefit plans and other benefit
arrangements for the purposes of determining eligibility to become a
participant, including their vested interest under any retirement plan,
based upon their recognized original date of employment with the Company.
For each such employee who was enrolled in any group medical and dental
coverage offered by the Company on the Closing Date and who thereafter
enrolls in any group medical and dental plan of the Buyer or the Company,
the Buyer shall (A) waive or cause the Company to waive any preexisting
condition limitation that might otherwise apply to such employee, and (B)
agrees to recognize or cause the Company to recognize the dollar amount of
all expenses incurred by such employee during the year in which the Closing
Date occurs for purposes of satisfying the deductibles and copayment
limitations in accordance with the terms of such group medical and dental
plan of the Buyer or the Company. Seller will cause the Company to provide
the Buyer with a true and complete listing of all amounts so expended and
such other information as Buyer may reasonably require in order to properly
administer any provisions of this Section 3.13(a).
(c) All former Company employees hired by Buyer for employment by the Company
on or after the Closing Date shall be subject to the vacation policy of the
Buyer or any policy adopted by the Company thereafter, except that (A) such
employees shall be given full vacation credit for prior years of service
recognized by the Company prior to the Closing Date, and (B) the amount of
annual vacation to which such employees are entitled on the Closing Date
under the Company's vacation policy shall not be reduced and shall be
carried forward on an annual basis until each such employee's annual
vacation entitlements reach a parity with such entitlements under the
vacation policy of the Buyer or any such policy thereafter adopted by the
Company. Seller shall be responsible for payment to such employees based
upon any accrued and earned but unused vacation entitlements prior to the
Closing Date.
(d) Buyer and Seller hereby acknowledge and agree that this Agreement shall not
constitute a contract of employment or otherwise between either Buyer,
Seller or the Company and any employee of the Company, nor shall any such
employee be entitled to rely on this Agreement as a basis for any breach of
contract claim against either Buyer, Seller or the Company. In no event
shall Seller have any liability for the administration or payment of any
benefits due under any employee benefit plans maintained by the Buyer or
the Company after the Closing Date.
(e) Pursuant to the Company terminating its employment relationship with all of
its employees as contemplated under Section 3.13(a), Seller shall cause the
Company to comply with all applicable federal, state and local laws,
ordinances and regulations, including but not limited to the applicable
provisions of the Worker Adjustment Retraining and Notification Act.
3.14 COMPLIANCE WITH LEGAL REQUIREMENTS; GOVERNMENTAL AUTHORIZATIONS
(a) Except as set forth in Part 3.14 of the Disclosure Letter:
(i) to the Knowledge of Seller and the Company since November 1, 1997, the
Company has been in full compliance with each Legal Requirement that is or
was applicable to it or to the conduct or operation of its business or the
ownership or use of any of its assets;
(ii) to the Knowledge of Seller and the Company since November 1, 1997, no event
has occurred or circumstance exists that (with or without notice or lapse
of time) may constitute or result in a violation by the Company of, or a
failure on the part of the Company to comply with, any Legal Requirement;
and
(iv) the Company has not received since November 1, 1997, any pending notice or
other communication (whether oral or written) from any Governmental Body or
any other Person regarding (A) any actual, alleged, possible, or potential
violation of, or failure to comply with, any Legal Requirement, or (B) any
actual, alleged, possible, or potential obligation on the part of the
Company to undertake, or to bear all or any portion of the cost of, any
remedial action of any nature.
(b) Except as set forth in Part 3.14 of the Disclosure Letter:
(i) to the Knowledge of Seller and the Company, the Company is, and at all
times since November 1, 1997, has been in full compliance with all of the
terms and requirements of each Governmental Authorization held by the
Company;
(ii) to the Knowledge of Seller and the Company, no event has occurred or
circumstance exists since November 1, 1997, that may (with or without
notice or lapse of time) (A) constitute or result directly or indirectly in
a violation of or a failure to comply with any term or requirement of any
Governmental Authorization held by the Company, or (B) result directly or
indirectly in the revocation, withdrawal, suspension, cancellation, or
termination of, or any modification to, any Governmental Authorization held
by the Company;
(iii) the Company has not received at any time since November 1, 1997, any
notice or other communication (whether oral or written) from any
Governmental Body or any other Person regarding (A) any actual,
alleged, possible, or potential violation of or failure to comply with
any term or requirement of any Governmental Authorization held by the
Company, or (B) any actual, proposed, possible, or potential
revocation, withdrawal, suspension, cancellation, termination of, or
modification to any such Governmental Authorization; and
(iv) to the Knowledge of Seller and the Company, all applications required to
have been filed for the renewal of any Governmental Authorizations held by
the Company have been duly filed on a timely basis with the appropriate
Governmental Bodies, and all other filings required to have been made with
respect to such Governmental Authorizations have been duly made on a timely
basis with the appropriate Governmental Bodies.
The Governmental Authorizations held by the Company collectively constitute all
of the Governmental Authorizations necessary to permit the Company to lawfully
conduct and operate its business in the manner it currently conducts and
operates such business and to permit the Company to own and use its assets in
the manner in which it currently owns and uses such assets.
3.15 LEGAL PROCEEDINGS; ORDERS
(a) To the Knowledge of Seller and the Company, except as set forth in Part
3.15 of the Disclosure Letter, there is no pending Proceeding:
(i) that has been commenced by or against the Company or that otherwise relates
to or may affect the business of, or any of the assets owned or used by,
the Company; or
(ii) that challenges, or that may have the effect of preventing, delaying,
making illegal, or otherwise interfering with, any of the Contemplated
Transactions.
To the Knowledge of Seller and the Company, (1) no Proceeding has been
Threatened, and (2) no event has occurred or circumstance exists that may give
rise to or serve as a basis for the commencement of any such Proceeding. Seller
has delivered to Buyer copies of all pleadings, correspondence, and other
documents relating to each Proceeding listed in Part 3.15 of the Disclosure
Letter. The Proceedings listed in Part 3.15 of the Disclosure Letter will not
have a material adverse effect on the business, operations, assets, condition,
or prospects of the Company.
(b) Except as set forth in Part 3.15 of the Disclosure Letter:
(i) there is no Order to which the Company, or any of the assets owned or used
by the Company, is subject;
(ii) the Seller is not subject to any Order that relates to the business of, or
any of the assets owned or used by, the Company; and
(iii)to the Knowledge of Seller and the Company, no officer, director, agent,
or employee of the Company is subject to any Order that prohibits such
officer, director, agent, or employee from engaging in or continuing any
conduct, activity, or practice relating to the business of the Company.
(c) To the Knowledge of Seller and the Company, except as set forth in Part
3.15 of the Disclosure Letter:
(i) the Company is, and at all times since November 1, 1997, has been, in full
compliance with all of the terms and requirements of each Order to which
it, or any of the assets owned or used by it, is or has been subject;
(ii) no event has occurred or circumstance exists that may constitute or result
in (with or without notice or lapse of time) a violation of or failure to
comply with any term or requirement of any Order to which the Company, or
any of the assets owned or used by the Company, is subject; and
(iii)the Company has not received, at any time since November 1, 1997, any
notice or other communication (whether oral or written) from any
Governmental Body or any other Person regarding any actual, alleged,
possible, or potential violation of, or failure to comply with, any term or
requirement of any Order to which the Company, or any of the assets owned
or used by the Company, is or has been subject.
3.16 ABSENCE OF CERTAIN CHANGES AND EVENTS
Except as set forth in Part 3.16 of the Disclosure Letter, since the date of the
Interim Balance Sheet, the Company has conducted its businesses only in the
Ordinary Course of Business and there has not been any:
(a) change in the Company's authorized or issued capital stock; grant of any
stock option or right to purchase shares of capital stock of the Company;
issuance of any security convertible into such capital stock; grant of any
registration rights; purchase, redemption, retirement, or other acquisition
by the Company of any shares of any such capital stock; or declaration or
payment of any dividend or other distribution or payment in respect of
shares of capital stock;
(b) amendment to the Organizational Documents of the Company;
(c) payment or increase by the Company of any bonuses, salaries, or other
compensation to any stockholder, director, officer, or (except in the
Ordinary Course of Business) employee or entry into any employment,
severance, or similar Contract with any director, officer, or employee,
except as contemplated under the respective employment contracts with
Messrs. Xxxxx X. Xxxxxx and Xxx X. Xxxxxx (the "Employment Contracts");
(d) adoption of, or increase in the payments to or benefits under, any profit
sharing, bonus, deferred compensation, savings, insurance, pension,
retirement, or other employee benefit plan for or with any employees of the
Company, except as contemplated under the respective Employment Contracts;
(e) damage to or destruction or loss of any asset or property of the Company,
whether or not covered by insurance, materially and adversely affecting the
properties, assets, business, financial condition, or prospects of the
Company, taken as a whole;
(f) entry into, termination of, or receipt of notice of termination of (i) any
license, distributorship, dealer, sales representative, joint venture,
credit, or similar agreement, except in the Ordinary Course of Business, or
(ii) any Contract or transaction involving a total remaining commitment by
or to the Company of at least $25,000, except in the Ordinary Course of
Business;
(g) sale (other than sales of inventory in the Ordinary Course of Business),
lease, or other disposition of any asset or property of the Company or
mortgage, pledge, or imposition of any lien or other encumbrance on any
material asset or property of the Company, including the sale, lease, or
other disposition of any of the Intellectual Property Assets;
(h) cancellation or waiver of any claims or rights with a value to the Company
in excess of $50,000;
(i) material change in the accounting methods used by the Company;
(j) agreement, whether oral or written, by the Company to do any of the
foregoing, except as contemplated under the respective Employment
Contracts;
(k) transaction by the Company with any of its officers, directors, employees,
stockholders or affiliates, other than pursuant to an Applicable Contract,
the respective Employment Contracts between the Seller and Messrs. Xxxxx X.
Xxxxxx and Xxx X. Xxxxxx, or arrangement in effect on the date of the
Interim Balance Sheet and disclosed to Buyer; or
(l) entry into of any agreement by the Company to do or engage in any of the
foregoing, including, without limitation, any merger, sale of substantially
all the assets or other business combination not otherwise restricted by
any of the foregoing provisions.
3.17 CONTRACTS; NO DEFAULTS
(a) To the Knowledge of Seller and the Company, Part 3.17(a) of the Disclosure
Letter contains a complete and accurate list, and Seller has delivered to
Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery
of goods or materials by the Company;
(ii) each Applicable Contract that was not entered into in the Ordinary Course
of Business and that involves expenditures or receipts of the Company;
(iii)each lease, rental or occupancy agreement, license, installment and
conditional sale agreement, and other Applicable Contract affecting the
ownership of, leasing of, title to, use of, or any leasehold or other
interest in, any real or personal property;
(iv) each licensing agreement or other Applicable Contract with respect to
patents, trademarks, copyrights, or other intellectual property,
including agreements with current or former employees, consultants, or
contractors regarding the appropriation or the nondisclosure of any of
the Intellectual Property Assets;
(v) each collective bargaining agreement and other Applicable Contract to or
with any labor union or other employee representative of a group of
employees;
(vi) each joint venture, partnership, and other Applicable Contract (however
named) involving a sharing of profits, losses, costs, or liabilities by the
Company with any other Person;
(vii)each Applicable Contract containing covenants that in any way purport to
restrict the business activity of the Company or limit the freedom of the
Company to engage in any line of business or to compete with any Person;
(viii) each Applicable Contract providing for payments to or by any Person based
on sales, purchases, or profits, other than direct payments for goods;
(ix) each power of attorney that is currently effective and outstanding;
(x) each Applicable Contract for capital expenditures in excess of $25,000;
(xi) each written warranty, guaranty, and or other similar undertaking with
respect to contractual performance extended by the Company other than in
the Ordinary Course of Business; and
(xii)each amendment, supplement, and modification (whether oral or written) in
respect of any of the foregoing.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter, as of the
Closing:
(i) Seller (and no Related Person of Seller) neither has nor may acquire any
rights under, and Seller neither has nor may become subject to any
obligation or liability under, any Contract that relates to the business
of, or any of the assets owned or used by, the Company; and
(ii) No officer, director, agent, employee, consultant, or contractor of the
Company is bound by any Contract that purports to limit the ability of such
officer, director, agent, employee, consultant, or contractor to (A) engage
in or continue any conduct, activity, or practice relating to the business
of the Company, or (B) assign to the Company or to any other Person any
rights to any invention, improvement, or discovery.
(c) To the Knowledge of Seller and the Company, except as set forth in Part
3.17(c) of the Disclosure Letter, each Contract identified or required to
be identified in Part 3.17(a) of the Disclosure Letter is in full force and
effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) to the Knowledge of Seller and the Company, the Company is, and at all
times since November 1, 1997, has been, in material compliance with all
applicable terms and requirements of each Contract under which the Company
has or had any obligation or liability or by which the Company or any of
the assets owned or used by the Company is or was bound;
(ii) to the Knowledge of Seller and the Company, each other Person that has or
had any obligation or liability under any Contract under which the Company
has or had any rights is, and at all times since November 1, 1997, has
been, in material compliance with all applicable terms and requirements of
such Contract;
(iii)to the Knowledge of Seller and the Company, no event has occurred or
circumstance exists that (with or without notice or lapse of time) may
materially contravene, conflict with, or result in a material violation or
breach of, or give the Company or other Person the right to declare a
default or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate, or modify, any Applicable
Contract; and
(iv) to the Knowledge of Seller and the Company, the Company has not given to or
received from any other Person, at any time since November 1, 1997, any
notice or other communication (whether oral or written) regarding any
actual, alleged, possible, or potential violation or breach of, or default
under, any Contract.
(e) to the Knowledge of Seller and the Company, there are no renegotiations of,
attempts to renegotiate, or outstanding rights to renegotiate any material
amounts paid or payable to the Company under current or completed Contracts
with any Person and no such Person has made written demand for such
renegotiation.
(f) to the Knowledge of Seller and the Company, the Contracts relating to the
sale, design, manufacture, or provision of products or services by the
Company have been entered into in the Ordinary Course of Business and have
been entered into without the commission of any act alone or in concert
with any other Person, or any consideration having been paid or promised,
that is or would be in violation of any Legal Requirement.
3.18 INSURANCE
It is hereby acknowledged and agreed that the majority of the Company's property
and liability exposures are insured under risk financing programs provided
through the Seller, which utilize a combination of selfinsurance and large
deductibles, as well as other riskfinancing techniques; therefore, effective as
of the Closing, (a) Seller shall be entitled to cancel and terminate all
property and liability insurance coverage applicable to the property and
business operations of the Company, and (b) Buyer and/or the Company shall bear
all risk of loss and liability accruing from and after the Closing with respect
the property and business operations of the Company.
3.19 ENVIRONMENTAL MATTERS
Except as set forth in part 3.19 of the disclosure letter:
(a) To the Knowledge of Seller and the Company, the Company is, and at all
times since November 1, 1997, has been in substantial compliance with, and
since November 1, 1997, has not been and is not in material violation of,
any applicable Environmental Law. Neither the Seller nor the Company has
any basis to expect any actual or Threatened Order, notice, or other
communication from (i) any Governmental Body or private citizen acting in
the public interest, or (ii) the current or prior owner or operator of any
Facilities, of any actual or potential violation or failure by the Company
to comply with any Environmental Law, or of any actual or Threatened
obligation of the Company to undertake or bear the cost of any
Environmental, Health, and Safety Liabilities with respect to any of the
Facilities or any other properties or assets (whether real, personal, or
mixed) in which the Company has an interest, or with respect to any
property or Facility at or to which Hazardous Materials were generated,
manufactured, refined, transferred, transported, imported, used, or
processed by the Company, or from which Hazardous Materials have been
transported, treated, stored, handled, transferred, disposed, recycled, or
received by the Company.
(b) There are no pending or, to the Knowledge of Seller and the Company,
Threatened claims, Encumbrances, or other restrictions of any nature,
resulting from any Environmental, Health, and Safety Liabilities or arising
under or pursuant to any Environmental Law, with respect to or affecting
any of the Facilities or any other properties and assets (whether real,
personal, or mixed) in which the Company has an interest.
(c) Neither the Seller nor the Company has any basis to expect, nor has either
of them received, any citation, directive, inquiry, notice, Order, summons,
warning, or other communication that relates to Hazardous Activity,
Hazardous Materials, or any alleged, actual, or potential violation or
failure to comply with any Environmental Law, or of any alleged, actual, or
potential obligation to undertake or bear the cost of any Environmental,
Health, and Safety Liabilities with respect to any of the Facilities or any
other properties or assets (whether real, personal, or mixed) in which
Seller or the Company has an interest, or with respect to any property or
facility to which Hazardous Materials generated, manufactured, refined,
transferred, imported, used, or processed by the Company have been
transported, treated, stored, handled, transferred, disposed, recycled, or
received.
(d) To the Knowledge of Seller and the Company, neither the Seller nor the
Company has any Environmental, Health, and Safety Liabilities with respect
to the Facilities or with respect to any other properties and assets
(whether real, personal, or mixed) in which the Company has an interest.
(e) To the Knowledge of Seller and the Company, there are no Hazardous
Materials present on the Facilities, including any Hazardous Materials
contained in barrels, above or underground storage tanks, landfills, land
deposits, dumps, equipment (whether moveable or fixed) or other containers,
either temporary or permanent, and deposited or located in land, water,
sumps, or any other part of the Facilities. Neither the Company, nor to the
Knowledge of Seller and the Company, any other Person, has permitted or
conducted, or is aware of, any Hazardous Activity conducted with respect to
the Facilities or any other properties or assets (whether real, personal,
or mixed) in which the Company has an interest except in full compliance
with all applicable Environmental Laws.
(f) To the Knowledge of Seller and the Company, since November 1, 1997, there
has been no Release or, to the Knowledge of Seller and the Company, Threat
of Release, of any Hazardous Materials at or from the Facilities or at any
other locations where any Hazardous Materials were generated, manufactured,
refined, transferred, produced, imported, used, or processed from or by the
Facilities, or from or by any other properties and assets (whether real,
personal, or mixed) in which the Company has an interest, whether by
Seller, the Company, or any other Person.
(g) Seller has to its Knowledge delivered to Buyer true and complete copies and
results of any reports, studies, analyses, tests, or monitoring possessed
or initiated by the Company pertaining to Hazardous Materials or Hazardous
Activities in, on, or under the Facilities, or concerning compliance by the
Company with Environmental Laws.
3.20 EMPLOYEES
(a) Part 3.20 of the Disclosure Letter contains a complete and accurate list of
the following information for each employee (other than officers and
directors) of the Company, including each employee on leave of absence or
layoff status: name; job title; current compensation paid or payable and
any change in compensation since November 1, 1997; vacation accrued; and
service credited for purposes of vesting and eligibility to participate
under the Company's pension, retirement, profit-sharing, thriftsavings,
deferred compensation, stock bonus, stock option, cash bonus, employee
stock ownership, severance pay, insurance, medical, welfare, or vacation
plan, other Employee Pension Benefit Plan or Employee Welfare Benefit Plan,
or any other employee benefit plan.
(b) Except as set forth in the respective Employment Contracts between the
Seller and Messrs. Xxxxx X. Xxxxxx and Xxx X. Xxxxxx, or Part 3.20 of the
Disclosure Letter, to the Knowledge of Seller and the Company, no employee
of the Company is a party to, or is otherwise bound by, any agreement or
arrangement, including any confidentiality, non-competition, or proprietary
rights agreement, between such employee or director and any other Person
that in any way adversely affects or will affect (i) the performance of his
duties as an employee of the Company, or (ii) the ability of the Company to
conduct its business in the Ordinary Course of Business.
(c) Part 3.20 of the Disclosure Letter also contains a complete and accurate
list of the following information for each retired employee or director of
the Company, or their dependents, receiving benefits or scheduled to
receive benefits in the future: name, pension benefit, pension option
election, retiree medical insurance coverage, retiree life insurance
coverage, and other benefits.
(d) Buyer may interview and make offers of employment to each of the employees
of the Company, effective as of the Closing Date. Any such offers of
employment shall be made on substantially the same terms and conditions and
at substantially the same levels of compensation as exist with each such
employee prior to the Closing Date. On or before the Closing Date, Buyer
shall provide Seller with a written list of all employees of the Company
who have accepted offers from the Buyer for employment by the Company as of
the Date of Closing.
3.21 LABOR RELATIONS; COMPLIANCE
The Company is not a party to any collective bargaining or other labor
Contract. There has not been, there is not presently pending or existing,
and there is not Threatened, (a) any strike, slowdown, picketing, work
stoppage, or employee grievance process, (b) any Proceeding against or
affecting the Company relating to the alleged violation of any Legal
Requirement pertaining to labor relations or employment matters, including
any charge or complaint filed by an employee or union with the National
Labor Relations Board, the Equal Employment Opportunity Commission, or any
comparable Governmental Body, organizational activity, or other labor or
employment dispute against or affecting any the Company or its premises, or
(c) any application for certification of a collective bargaining agent. No
event has occurred or circumstance exists that could provide the basis for
any work stoppage or other labor dispute. There is no lockout of any
employees by the Company, and no such action is contemplated by the
Company. To the Knowledge of Seller, the Company has complied in all
respects with all Legal Requirements relating to employment, equal
employment opportunity, nondiscrimination, immigration, wages, hours,
benefits, collective bargaining, the payment of social security and similar
taxes, occupational safety and health, and plant closing. To the Knowledge
of Seller, the Company is not liable for the payment of any compensation,
damages, taxes, fines, penalties, or other amounts, however designated, for
failure to comply with any of the foregoing Legal Requirements.
3.22 INTELLECTUAL PROPERTY
(a) Intellectual Property Assets. With respect to the Company, the term
"Intellectual Property Assets" includes:
(i) the name Irvine Fly Ash, Inc., all fictional business names, trading names,
registered and unregistered trademarks, service marks, and applications
(collectively, "Marks"); and
(ii) all knowhow, trade secrets, confidential information, customer lists,
software, technical information, data, process technology, plans, drawings,
and blue prints (collectively, "Trade Secrets"); owned, used, or licensed
by the Company as licensee or licensor.
(b) KnowHow Necessary for the Business.
(i) The Intellectual Property Assets are all those necessary for the operation
of the Company's business as currently conducted. The Company is the owner
of all right, title, and interest in and to each of the Intellectual
Property Assets, free and clear of all liens, security interests, charges,
encumbrances, equities, and other adverse claims, and has the right to use
without payment to a third party all of the Intellectual Property Assets.
(ii) To the Knowledge of Seller and the Company, no employee of the Company has
entered into any Contract that restricts or limits in any way the scope or
type of work in which the employee may be engaged or requires the employee
to transfer, assign, or disclose information concerning his work to anyone
other than the Company.
(c) Trademarks.
(i) To the Knowledge of Seller and the Company, the Company is the owner of all
right, title, and interest in and to each of the Marks, free and clear of
all liens, security interests, charges, encumbrances, equities, and other
adverse claims.
(ii) To the Knowledge of Seller and the Company, no Xxxx has been or is now
involved in any opposition, invalidation, or cancellation and, to the
Knowledge of Seller, no such action is Threatened with the respect to any
of the Marks.
(iii)To the Knowledge of Seller and the Company, there is no potentially
interfering trademark or trademark application of any third party.
(d) Trade Secrets.
(i) To the Knowledge of Seller and the Company, with respect to each Trade
Secret, the documentation relating to such Trade Secret is current,
accurate, and sufficient in detail and content to identify and explain it
and to allow its full and proper use without reliance on the knowledge or
memory of any individual.
(ii) Seller and the Company have taken all reasonable precautions in the
Ordinary Course of Business to protect the secrecy, confidentiality, and
value of their Trade Secrets.
(iii)To the Knowledge of Seller and the Company, (A) the Company has good title
and an absolute (but not necessarily exclusive) right to use the Trade
Secrets, (B) the Trade Secrets are not part of the public knowledge or
literature, and have not been used, divulged, or appropriated either for
the benefit of any Person (other than the Company) or to the detriment of
the Company, and (C) no Trade Secret is subject to any adverse claim or has
been challenged or threatened in any way.
3.23 CERTAIN PAYMENTS
To the Knowledge of Seller and the Company, neither the Company nor any
director, officer, agent, or employee of the Company, or any other Person
associated with or acting for or on behalf of the Company, has directly or
indirectly (a) made any contribution, gift, bribe, rebate, payoff, influence
payment, kickback, or other payment to any Person, private or public, regardless
of form, whether in money, property, or services (i) to obtain favorable
treatment in securing business, (ii) to pay for favorable treatment for business
secured, (iii) to obtain special concessions or for special concessions already
obtained, for or in respect of the Company, or (iv) in violation of any Legal
Requirement; or (b) established or maintained any fund or asset that has not
been recorded in the books and records of the Company.
3.24 DISCLOSURE
(a) To the Knowledge of Seller and the Company, no representation or warranty
of Seller in this Agreement and no statement in the Disclosure Letter omits
to state a material fact necessary to make the statements herein or
therein, in light of the circumstances in which they were made, not
misleading.
(b) No notice given pursuant to Section 5.5 will contain any untrue statement
or omit to state a material fact necessary to make the statements therein
or in this Agreement, in light of the circumstances in which they were
made, not misleading.
(c) There is no fact known to Seller that has specific application to the
Company (other than general economic or industry conditions) and that
materially adversely affects or, as far as Seller can reasonably foresee,
materially threatens, the assets, business, prospects, financial condition,
or results of operations of the Company that has not been set forth in this
Agreement or the Disclosure Letter.
3.25 RELATIONSHIPS WITH RELATED PERSONS
As of the Closing, neither the Seller nor any Related Person of Seller or of the
Company has any interest in any property (whether real, personal, or mixed and
whether tangible or intangible), used in or pertaining to the Company's
business, except that certain Commercial Lease Agreement dated as of November 1,
1997, by and between 2303 Xxxxxxx Associates, as Lessor, and the Company, as
lessee, covering certain office facilities located at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000 (the "Office Lease"). Neither the Seller nor any Related
Person of Seller or, to the Knowledge of Seller, of the Company is the owner (of
record or as a beneficial owner) of any equity interest, or any other financial
or profit interest in, any Person that has (i) business dealings or a material
financial interest in any transaction with the Company other than the Office
Lease or business dealings or transactions conducted in the Ordinary Course of
Business with the Company at substantially prevailing market prices and on
substantially prevailing market terms, or (ii) engaged in competition with the
Company with respect to the sale of fly ash or related services of the Company
(a "Competing Business") in any market presently served by the Company, except
for less than one percent of the outstanding capital stock of any Competing
Business that is publicly traded on any recognized exchange or in the
overthecounter market. Except as set forth in Part 3.25 of the Disclosure
Letter, neither the Seller nor any Related Person of Seller or of the Company is
a party to any Contract with, or has any claim or right against, the Company.
3.26 BROKERS OR FINDERS
Seller and its agents have incurred no obligation or liability, contingent or
otherwise, for brokerage or finders' fees or agents' commissions or other
similar payment in connection with this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 ORGANIZATION AND GOOD STANDING
Buyer is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Utah.
4.2 AUTHORITY; NO CONFLICT
(a) This Agreement constitutes the legal, valid, and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms. Buyer has
the absolute and unrestricted right, power, and authority to execute and
deliver this Agreement and the related closing documents and to perform its
obligations under this Agreement and the related closing documents,
respectively.
(b) Except as set forth in Schedule 4.2, neither the execution and delivery of
this Agreement by Buyer nor the consummation or performance of any of the
Contemplated Transactions by Buyer will give any Person the right to
prevent, delay, or otherwise interfere with any of the Contemplated
Transactions pursuant to:
(i) any provision of Buyer's Organizational Documents;
(ii) any resolution adopted by the board of directors or the stockholders of
Buyer;
(iii) any Legal Requirement or Order to which Buyer may be subject; or
(iv) any Contract to which Buyer is a party or by which Buyer may be bound.
Except as set forth in Schedule 4.2, Buyer is not and will not be required to
obtain any Consent from any Person in connection with the execution and delivery
of this Agreement or the consummation or performance of any of the Contemplated
Transactions.
4.3 INVESTMENT INTENT
Buyer is acquiring the Shares for its own account and not with a view to their
distribution within the meaning of Section 2(11) of the Securities Act of 1933
or any successor law, and regulations and rules issued pursuant to that Act or
any successor law.
4.4 CERTAIN PROCEEDINGS
There is no pending Proceeding that has been commenced against Buyer and that
challenges, or may have the effect of preventing, delaying, making illegal, or
otherwise interfering with, any of the Contemplated Transactions. To the
Knowledge of Buyer, no such Proceeding has been Threatened.
4.5 BROKERS OR FINDERS
Buyer and its officers and agents have incurred no obligation or liability,
contingent or otherwise, for brokerage or finders' fees or agents' commissions
or other similar payment in connection with this Agreement.
5. COVENANTS OF SELLER
5.1 ACCESS AND INVESTIGATION
Subject to the terms and conditions contained in that certain Confidentiality
Agreement dated as of December 9, 1998, by and between Buyer and Seller, it is
understood and agreed that between the date of this Agreement and the Closing
Date, without unreasonable interference with the business operations of the
Company, Seller will, and will cause the Company and its Representatives to, (a)
afford Buyer and its Representatives (collectively, "Buyer's Advisors") full and
free access to the Company's personnel, properties, contracts, books and
records, and other documents and data, (b) furnish Buyer and Buyer's Advisors
with copies of all such contracts, books and records, and other existing
documents and data pertaining to the Company as Buyer may reasonably request,
and (c) furnish Buyer and Buyer's Advisors with such additional financial,
'operating, and other data and information pertaining to the Company as Buyer
may reasonably request.
5.2 OPERATION OF THE BUSINESSES OF THE ACQUIRED COMPANIES
Between the date of this Agreement and the Closing Date, Seller will, and will
cause the Company to:
(a) conduct the business of the Company only in the Ordinary Course of
Business;
(b) use their Best Efforts to preserve intact the current business organization
of the Company, keep available the services of the current officers,
employees, and agents of the Company, and maintain the relations and good
will with suppliers, customers, landlords, creditors, employees, agents,
and others having business relationships with the Company;
(c) confer with Buyer concerning operational matters of a material nature; and
(d) otherwise report periodically to Buyer concerning the status of the
business, operations, and finances of the Company.
5.3 NEGATIVE COVENANT
Except as otherwise expressly permitted by this Agreement, between the date of
this Agreement and the Closing Date, Seller will not, and will cause the Company
not to, without the prior consent of Buyer, take any affirmative action, or fail
to take any reasonable action within its control, as a result of which any of
the changes or events listed in Section 3.16 is likely to occur.
5.4 REQUIRED APPROVALS
As promptly as practicable after the date of this Agreement, Seller will, and
will cause the Company to, make all filings required by Legal Requirements to be
made by them in order to consummate the Contemplated Transactions. Between the
date of this Agreement and the Closing Date, Seller will, and will cause the
Company to, (a) reasonably cooperate with Buyer with respect to all filings that
Buyer elects to make or is required by Legal Requirements to make in connection
with the Contemplated Transactions, and (b) reasonably cooperate with Buyer in
obtaining all consents identified in Schedule 4.2.
5.5 NOTIFICATION
Between the date of this Agreement and the Closing Date, the Seller will
promptly notify Buyer in writing if the Seller or the Company becomes aware of
any fact or condition that causes or constitutes a material Breach of any of
Seller's representations and warranties as of the date of this Agreement, or if
the Seller or the Company becomes aware of the occurrence after the date of this
Agreement of any fact or condition that would (except as expressly contemplated
by this Agreement) cause or constitute a material Breach of any such
representation or warranty had such representation or warranty been made as of
the time of occurrence or discovery of such fact or condition. Should any such
fact or condition require any change in the Disclosure Letter if the Disclosure
Letter were dated the date of the occurrence or discovery of any such fact or
condition, Seller will promptly deliver to Buyer a supplement to the Disclosure
Letter specifying such change. During the same period, the Seller will promptly
notify Buyer of the occurrence of any material Breach of any covenant of Seller
in this Section 5 or of the occurrence of any event that may make the
satisfaction of the conditions in Section 7 impossible or unlikely.
5.6 PAYMENT OF INDEBTEDNESS BY RELATED PERSONS
Except as expressly provided in this Agreement, Seller will cause all
indebtedness owed to the Company by either Seller or any Related Person of
the Seller to be paid in full prior to Closing.
5.7 NO NEGOTIATION
Until such time, if any, as this Agreement is terminated pursuant to Section 9,
Seller will not, and will cause the Company and each of its Representatives
not to, directly or indirectly solicit, initiate, or encourage any
inquiries or proposals from, discuss or negotiate with, provide any
nonpublic information to, or consider the merits of any unsolicited
inquiries or proposals from, any Person (other than Buyer) relating to any
transaction involving the sale of the business or assets (other than in the
Ordinary Course of Business) of the Company, or any of the capital stock of
the Company, or any merger, consolidation, business combination, or similar
transaction involving the Company.
5.8 BEST EFFORTS
Between the date of this Agreement and the Closing Date, Seller will use its
Best Efforts to cause the conditions in Sections 7 and 8 to be satisfied.
5.9 NONCOMPETITION
From and after the Closing Date, Seller agrees that:
(a) Except as otherwise contemplated under this Section 5.9, for a period of
two (2) years from the Closing Date (the "Restricted Period"), the Seller,
alone or in conjunction with any other Person, or directly or indirectly
through a Related Person, will not directly or indirectly own, manage,
operate, join, have a financial interest in, control or participate in the
ownership, management, operation or control of, or use or permit its name
to be used in connection with, or be otherwise connected in any manner with
any business or enterprise engaged in providing services of any nature
whatsoever related to the management, disposal, marketing, sale or other
beneficial reuse of fly ash (the "Restricted Business") in the states of
Ohio, Missouri, Indiana, Kentucky, Tennessee, West Virginia and/or Illinois
(the "Territory"), provided that the Restricted Business shall not include
(i) the transportation or terminating of fly ash or (ii) consulting
services or the sale of flyash products (not to exceed 2,000 tons of fly
ash per year) related to mixdesign by Seller or any Related Person within
the Territory.
(b) In the event that any petroleum coke customer of the Seller requests that
the Seller, alone or in conjunction with any other Person, or directly or
indirectly through a Related Person, perform or provide any services
related to the Restricted Business within the Territory during the
Restricted Period, the Buyer shall have a right of first refusal to perform
or provide the requested services. Once Seller has secured a bona fide
offer from a third party to provide such services, then Seller will
promptly submit in writing the pertinent details of such offer to Buyer,
provided that Buyer shall then have a period of ten (10) business days to
notify Seller in writing of the exercise of its right of first refusal in
accordance with the terms of the thirdparty offer. To the extent that Buyer
fails to notify Seller in writing of the exercise of its right of first
refusal hereunder, then Seller may accept the terms of the thirdparty offer
without any further duty or obligation to Buyer as to the performance of
such services in connection with the Restricted Business. The parties agree
that the intent of this Section 5.9(b) is to allow the Seller to meet the
needs of its petroleum coke customers while at the sale time honoring the
provisions of this Agreement. As such, the benefits of any contract between
the Seller and its coalfired power plant customer related to the Restricted
Business shall be in the form of a passthrough relationship for the benefit
of the Buyer, and shall not contain any markup or other financial
consideration to the Seller.
(c) During the Restricted Period, the Seller shall not directly or indirectly,
or through a Related Person, (i) influence any individual who was an
employee or consultant of the Company at any time, to terminate his or her
employment or consulting relationship with the Company (except as provided
in the respective Employment Contracts), (ii) interfere in any other way
with the employment, or other relationship, of any employee or consultant
of the Company or (iii) cause or attempt to cause or participate in any way
in any discussion or negotiation which may cause (x) any client, customer
or supplier of the Company or (y) any prospective client, customer or
supplier of the Company, from engaging in business with the Company.
(d) The Seller agrees that the Buyer's remedies at law for any breach or threat
of breach by it of any of the provisions of this Section 5.9 will be
inadequate, and that, in addition to any other remedy to which Buyer may be
entitled at law or in equity, Buyer shall be entitled to a temporary or
permanent injunction or injunctions or temporary restraining order or
orders to prevent breaches of the provisions of this Section 5.9 and to
enforce specifically the terms and provisions hereof, in each case without
the need to post any security or bond. Nothing herein contained shall be
construed as prohibiting Buyer from pursuing, in addition, any other
remedies available to it for such breach or threatened breach. A waiver by
the Buyer of any breach of any provision hereof shall not operate or be
construed as a waiver of a breach of any other provisions of this Agreement
or of any subsequent breach.
(e) The parties hereto consider the restrictions contained in this Section 5.9
to be reasonable for the purpose of preserving the goodwill, proprietary
rights and going concern value of the Company, but if a final judicial
determination is made by a court having jurisdiction that the time or
territory or any other restriction on the Seller's activities, the
provisions of this Section 5.9 shall not be rendered void but shall be
deemed amended to apply as to such maximum time and territory and to such
other extent as such court may judicially determine or indicate to be
reasonable. Alternatively, if the court referred to above finds that any
restriction contained in this Section 5.9 or any remedy provided herein is
unenforceable, and such restriction or remedy cannot be amended so as to
make it enforceable, such finding shall not affect the enforceability of
any of the other restrictions contained therein or the availability of any
other remedy.
6. COVENANTS OF BUYER
6.1 APPROVALS OF GOVERNMENTAL BODIES
As promptly as practicable after the date of this Agreement, Buyer will, and
will cause each of its Related Persons to, make all filings required by Legal
Requirements to be made by them to consummate the Contemplated Transactions.
Between the date of this Agreement and the Closing Date, Buyer will, and will
cause each Related Person to, (i) reasonably cooperate with Seller with respect
to all filings that Seller is required by Legal Requirements to make in
connection with the Contemplated Transactions, and (ii) reasonably cooperate
with Seller in obtaining all consents identified in Part 3.2 of the Disclosure
Letter; provided that this Agreement will not require Buyer to dispose of or
make any change in any portion of its business or to incur any other burden to
obtain a Governmental Authorization.
6.2 BEST EFFORTS
Except as set forth in the proviso to Section 6.1, between the date of this
Agreement and the Closing Date, Buyer will use its Best Efforts to cause the
conditions in Sections 7 and 8 to be satisfied.
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
Buyer's obligation to purchase the Shares and to take the other actions required
to be taken by Buyer at the Closing is subject to the satisfaction, at or prior
to the Closing, of each of the following conditions (any of which may be waived
in writing by Buyer, in whole or in part):
7.1 ACCURACY OF REPRESENTATIONS
All of Seller' representations and warranties in this Agreement (considered
collectively), and each of these representations and warranties (considered
individually), must have been accurate in all material respects as of the date
of this Agreement, and must be accurate in all material respects as of the
Closing Date as if made on the Closing Date, subject to the effect of any
supplement to the Disclosure Letter.
7.2 SELLERS' PERFORMANCE
(a) All of the covenants and obligations that Seller is required to perform or
to comply with pursuant to this Agreement at or prior to the Closing
(considered collectively), and each of these covenants and obligations
(considered individually), must have been duly performed and complied with
in all material respects.
(b) Each document required to be delivered pursuant to Section 2.4 must have
been delivered, and each of the other covenants and obligations in Sections
5.4 and 5.8 must have been performed and complied with in all respects.
7.3 CONSENTS
Each of the Consents identified in Part 3.2 of the Disclosure Letter must have
been obtained and must be in full force and effect.
7.4 ADDITIONAL DOCUMENTS
Each of the following documents must have been delivered to Buyer:
(a) an opinion of Seller's legal counsel, dated the Closing Date, in the form
of Exhibit 7.4(a);
(b) such other documents as Buyer may reasonably request for the purpose of (i)
enabling its counsel to provide the opinion referred to in Section 8.4(a),
(ii) evidencing the accuracy of any of Seller's representations and
warranties, (iii) evidencing the performance by either Seller of, or the
compliance by either Seller with, any covenant or obligation required to be
performed or complied with by such Seller, (iv) evidencing the satisfaction
of any condition referred to in this Section 7, or (v) otherwise
facilitating the consummation or performance of any of the Contemplated
Transactions.
7.5 NO PROCEEDINGS
Since the date of this Agreement, there must not have been commenced or
Threatened against Buyer, or against any Person affiliated with Buyer, any
Proceeding (a) involving any challenge to, or seeking damages or other relief in
connection with, any of the Contemplated Transactions, or (b) that may have the
effect of preventing, delaying, making illegal, or otherwise interfering with
any of the Contemplated Transactions.
7.6 NO CLAIM REGARDING STOCK OWNERSHIP OR SALE PROCEEDS
There must not have been made or Threatened by any Person any claim asserting
that such Person (a) is the holder or the beneficial owner of, or has the right
to acquire or to obtain beneficial ownership of, any stock of, or any other
voting, equity, or ownership interest in, the Company, or (b) is entitled to all
or any portion of the Purchase Price payable for the Shares.
7.7 NO PROHIBITION
Neither the consummation nor the performance of any of the Contemplated
Transactions will, directly or indirectly (with or without notice or lapse of
time), materially contravene, or conflict with, or result in a material
violation of, or cause Buyer or any Person. affiliated with Buyer to suffer any
material adverse consequence under, (a) any applicable Legal Requirement or
Order, or (b) any Legal Requirement or Order that has been published,
introduced, or otherwise proposed by or before any Governmental Body.
8. CONDITIONS PRECEDENT TO SELLERS' OBLIGATION TO CLOSE
Seller' obligation to sell the Shares and to take the other actions required to
be taken by Seller at the Closing is subject to the satisfaction, at or
prior to the Closing, of each of the following conditions (any of which may
be waived in writing by Seller, in whole or in part):
8.1 ACCURACY OF REPRESENTATIONS
All of Buyer's representations and warranties in this Agreement (considered
collectively), and each of these representations and warranties (considered
individually), must have been accurate in all material respects as of the
date of this Agreement and must be accurate in all material respects as of
the Closing Date as if made on the Closing Date.
8.2 BUYER'S PERFORMANCE
(a) All of the covenants and obligations that Buyer is required to perform or
to comply with pursuant to this Agreement at or prior to the Closing
(considered collectively), and each of these covenants and obligations
(considered individually), must have been performed and complied with in
all material respects.
(b) Buyer must have delivered each of the documents required to be delivered by
Buyer pursuant to Section 2.4 and must have paid the Purchase Price
required to be made by Buyer pursuant to Section 2.4(b)(i).
8.3 CONSENTS
Each of the Consents identified in Part 3.2 of the Disclosure Letter must have
been obtained and must be in full force and effect.
8.4 ADDITIONAL DOCUMENTS
Buyer must have caused the following documents to be delivered to Seller:
(a) an opinion of Buyer's legal counsel, dated the Closing Date, in the form of
Exhibit 8.4(a); and
(b) such other documents as Seller may reasonably request for the purpose of
(i) enabling their counsel to provide the opinion referred to in Section
7.4(a), (ii) evidencing the accuracy of any representation or warranty of
Buyer, (iii) evidencing the performance by Buyer of, or the compliance by
Buyer with, any covenant or obligation required to be performed or complied
with by Buyer, (iv) evidencing the satisfaction of any condition referred
to in this Section 8, or (v) otherwise facilitating the consummation of any
of the Contemplated Transactions.
8.5 NO INJUNCTION
There must not be in effect any Legal Requirement or any injunction or other
Order that (a) prohibits the sale of the Shares by Seller to Buyer, and (b) has
been adopted or issued, or has otherwise become effective, since the date of
this Agreement.
9. TERMINATION
9.1 TERMINATION EVENTS
This Agreement may, by notice given prior to or at the Closing, be terminated:
(a) by either Buyer or Seller if a material Breach of any provision of this
Agreement has been committed by the other party and such Breach has not
been waived;
(b) (i) by Buyer if any of the conditions in Section 7 has not been satisfied
as of the Closing Date or if satisfaction of such a condition is or becomes
impossible (other than through the failure of Buyer to comply with its
obligations under this Agreement) and Buyer has not waived such condition
in writing on or before the Closing Date; or (ii) by Seller, if any of the
conditions in Section 8 has not been satisfied as of the Closing Date or if
satisfaction of such a condition is or becomes impossible (other than
through the failure of Seller to comply with their obligations under this
Agreement) and Seller have not waived such condition in writing on or
before the Closing Date;
(c) by mutual consent of Buyer and Seller; or
(d) by either Buyer or Seller if the Closing has not occurred (other than
through the failure of any party seeking to terminate this Agreement to
comply fully with its obligations under this Agreement) on or before June
2, 1999, or such later date as the parties may agree upon.
9.2 EFFECT OF TERMINATION
Each party's right of termination under Section 9.1 is in addition to any other
rights it may have under this Agreement or otherwise, and the exercise of a
right of termination will not be an election of remedies. If this Agreement is
terminated pursuant to Section 9.1, all further obligations of the parties under
this Agreement will terminate, except that the obligations in Sections 11. 1 and
11.3 will survive; provided, however, that if this Agreement is terminated by a
party because of the Breach of the Agreement by the other party or because one
or more of the conditions to the terminating party's obligations under this
Agreement is not satisfied as a result of the other party's failure to comply
with its obligations under this Agreement, the terminating party's right to
pursue all legal and/or equitable remedies will survive such termination
unimpaired.
10. INDEMNIFICATION; REMEDIES
10.1 SURVIVAL
All representations, warranties, covenants, and obligations in this Agreement,
the Disclosure Letter, the supplements to the Disclosure Letter, and any other
certificate or document delivered pursuant to this Agreement will survive the
Closing, subject to the provisions of Sections 10.4 and 10.5.
10.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY SELLERS
Subject to the provisions of Sections 10.4 and 10.5, Seller will indemnify and
hold harmless Buyer, the Company, and their respective Representatives,
stockholders, controlling persons, and affiliates (collectively, the
"Indemnified Persons") for, and will pay to the Indemnified Persons the
amount of, any loss, liability, claim, damage, expense (including
reasonable attorneys' fees) (collectively, "Damages"), arising, directly or
indirectly, from or in connection with:
(a) any Breach of any representation or warranty made by Seller in this
Agreement (after giving effect to any supplement to the Disclosure Letter),
the Disclosure Letter, the supplements to the Disclosure Letter, or any
other certificate or document delivered by Seller pursuant to this
Agreement;
(b) any Breach of any representation or warranty made by Seller in this
Agreement as if such representation or warranty were made on and as of the
Closing Date (after giving effect to any supplement to the Disclosure
Letter), other than any such Breach that is expressly disclosed in a
supplement to the Disclosure Letter;
(c) any Breach by Seller of any covenant or obligation of such Seller in this
Agreement; or
(d) any claim by any Person for brokerage or finder's fees or commissions or
similar payments based upon any agreement or understanding alleged to have
been made by any such Person with the Seller or the Company (or any Person
acting on their behalf) in connection with any of the Contemplated
Transactions.
10.3 INDEMNIFICATION AND PAYMENT OF DAMAGES BY BUYER
Buyer will indemnify and hold harmless Seller, and will pay to Seller the amount
of any Damages arising, directly or indirectly, from or in connection with (a)
any Breach of any representation or warranty made by Buyer in this Agreement or
in any certificate delivered by Buyer pursuant to this Agreement, (b) any Breach
by Buyer of any covenant or obligation of Buyer in this Agreement, (c) any claim
by any Person for brokerage or finder's fees or commissions or similar payments
based upon any agreement or understanding alleged to have been made by such
Person with Buyer (or any Person acting on its behalf) in connection with any of
the Contemplated Transactions, (d) any Environmental, Health, and Safety
Liabilities arising out of or relating to the ownership, operation, or condition
occurring at any time after the Closing Date of the Facilities or any other
properties and assets (whether real, personal, or mixed and whether tangible or
intangible) in which the Company has an ownership interest, or (e) any bodily
injury (including illness, disability, and death), personal injury, property
damage (including trespass, nuisance, wrongful eviction, and deprivation of the
use of real property), or other damage of or to any Person, including any
employee of former employee of the Company, in any way arising from any
Hazardous Activity conducted by the Company after the Closing Date, or from
Hazardous Material that was Released by the Company at any time after the
Closing Date.
10.4 TIME LIMITATIONS
If the Closing occurs, Seller will have no liability (for indemnification or
otherwise) with respect to any representation or warranty, or covenant or
obligation to be performed and complied with prior to the Closing Date, unless
within a period of two (2) years following the Closing Date, Buyer notifies
Seller of a claim specifying the factual basis of that claim in reasonable
detail to the extent then known by Buyer.
10.5 LIMITATIONS ON AMOUNT-SELLER
The indemnifying party shall not have any liability or obligation (for
indemnification or otherwise) to the indemnified party with respect to the
matters described in Sections 10.2 and 10.3 until the total of all Damages
incurred by the indemnified party with respect to such matters exceeds $75,000
or the limits of any applicable and recoverable insurance coverage available to
the indemnified party, whichever is greater, and then only for the amount by
which such Damages exceed $75,000 or the limits of any such applicable and
recoverable insurance coverage, whichever is greater; provided, however, that in
no event shall Seller or any of its affiliated entities have any liability or
obligation under this Agreement, including but not limited to the provisions of
Section 10.2 hereof, in excess of Six Million and No/100 Dollars
($6,000,000.00).
10.6 PROCEDURE FOR INDEMNIFICATION-THIRD PARTY CLAIMS
(b)
(c) Promptly after receipt by an indemnified party under Sections 10.2 or 10.3
of notice of the commencement of any Proceeding against it, such
indemnified party will, if a claim is to be made against an indemnifying
party under such Section, give notice to the indemnifying party of the
commencement of such claim, but the failure to notify the indemnifying
party will not relieve the indemnifying party of any liability that it may
have to any indemnified party, except to the extent that the indemnifying
party demonstrates that the defense of such action is prejudiced by the
indemnified party's failure to give such notice.
(d)
(e) If any Proceeding referred to in Section 10 is brought against an
indemnified party and it gives notice to the indemnifying party of the
commencement of such Proceeding, the indemnifying party will, unless the
claim involves Taxes, be entitled to participate in such Proceeding and, to
the extent that it wishes (unless (i) the indemnifying party is also a
party to such Proceeding and the indemnified party determines in good faith
that joint representation would be inappropriate, or (ii) the indemnifying
party fails to provide reasonable assurance to the indemnified party of its
financial capacity to defend such Proceeding and provide indemnification
with respect to such Proceeding), to assume the defense of such Proceeding
with counsel reasonably satisfactory to the indemnified party and, after
notice from the indemnifying party to the indemnified party of its election
to assume the defense of such Proceeding, the indemnifying party will not,
as long as it diligently conducts such defense, be liable to the
indemnified party under this Section 10 for any fees of other counsel or
any other expenses with respect to the defense of such Proceeding, in each
case subsequently incurred by the indemnified party in connection with the
defense of such Proceeding. If the indemnifying party assumes the defense
of a Proceeding, (i) it will be conclusively established for purposes of
this Agreement that the claims made in that Proceeding are within the scope
of and subject to indemnification; (ii) no compromise or settlement of such
claims may be effected by the indemnifying party without the indemnified
party's consent, which consent shall not be unreasonably withheld or
delayed, unless (A) there is no finding or admission of any violation of
Legal Requirements or any violation of the rights of any Person and no
effect on any other claims that may be made against the indemnifying party,
and (B) the sole relief provided is monetary damages that are paid in full
by the indemnifying party; and (iii) the indemnified party will have no
liability with respect to any compromise or settlement of such claims
effected without its consent. If notice is given to an indemnifying party
of the commencement of any Proceeding and the indemnifying party does not,
within ten days after the indemnified party's notice is given, give notice
to the indemnified party of its election to assume the defense of such
Proceeding, the indemnifying party will be bound by any determination made
in such Proceeding or any compromise or settlement effected by the
indemnified party.
(c) Notwithstanding the foregoing, if an indemnified party determines in good
faith that there is a reasonable probability that a Proceeding may
adversely affect it or its affiliates other than as a result of monetary
damages for which it would be entitled to indemnification under this
Agreement, the indemnified party may, by notice to the indemnifying party,
assume the exclusive right to defend, compromise, or settle such
Proceeding, but the indemnifying party will not be bound by any
determination of a Proceeding so defended or any compromise or settlement
effected without its consent (which may not be unreasonably withheld or
delayed).
(d) Seller hereby consent to the nonexclusive jurisdiction of any court in
which a Proceeding is brought against any Indemnified Person for purposes
of any claim that an Indemnified Person may have under this Agreement with
respect to such Proceeding or the matters alleged therein, and agrees that
process may be served on Seller with respect to such a claim anywhere in
the world.
10.7 PROCEDURE FOR INDEMNIFICATION-OTHER CLAIMS
A claim for indemnification for any matter not involving a thirdparty claim may
be asserted by notice to the party from whom indemnification is sought.
11. GENERAL PROVISIONS
11.1 EXPENSES
Except as otherwise expressly provided in this Agreement, each party to this
Agreement will bear its respective expenses incurred in connection with the
preparation, execution, and performance of this Agreement and the Contemplated
Transactions, including all fees and expenses of agents, representatives,
counsel, and accountants. Seller will cause the Company not to incur any
material outofpocket expenses in connection with this Agreement, unless
expressly approved in writing by Buyer. In the event of termination of this
Agreement, the obligation of each party to pay its own expenses will be subject
to any rights of such party arising from a Breach of this Agreement by another
party.
11.2 PUBLIC ANNOUNCEMENTS
Any public announcement or similar publicity with respect to this Agreement or
the Contemplated Transactions will be issued, if at all, at such time and in
such manner as Seller determines. Unless consented to in writing by Seller in
advance or required by Legal Requirements, prior to the Closing Buyer shall keep
this Agreement strictly confidential and may not make any disclosure of this
Agreement to any Person. Seller and Buyer will consult with each other
concerning the means by which the Company's employees, customers, and suppliers
and others having dealings with the Company will be informed of the Contemplated
Transactions, and Buyer will have the right to be present for any such
communication. Buyer shall have the right to announce (publicly or otherwise)
the acquisition of the Company following the Closing of the Contemplated
Transactions.
11.3 CONFIDENTIALITY
Without limitation of that certain Confidentiality Agreement dated as, of
December 9, 1998, by and between Seller and Buyer, between the date of this
Agreement and the Closing Date, Buyer and Seller will maintain in confidence,
and will cause their respective directors, officers, employees, agents, and
advisors to maintain in confidence, any written, oral, or other information
obtained in confidence from another party or the Company in connection with this
Agreement or the Contemplated Transactions, unless (a) such information is
already known to such party or to others not bound by a duty of confidentiality
or such information becomes publicly available through no fault of such party,
(b) the use of such information is necessary or appropriate in making any filing
or obtaining any consent or approval required for the consummation of the
Contemplated Transactions, or (c) the furnishing or use of such information is
required by or necessary or appropriate in Connection with any legal
proceedings.
11.4 NOTICES
All notices, consents, waivers, and other communications under this Agreement
must be in writing and will be deemed to have been duly given when (a) delivered
by hand, (b) sent by telecopier (with written confirmation of receipt), (c) when
received by the addressee, if sent by a nationally recognized overnight delivery
service (receipt requested), in each case to the appropriate addresses and
telecopier numbers set forth below (or to such other addresses and telecopier
numbers as a party may designate by notice to the other parties):
Seller: Xxxx Carbon, Inc.
0000 Xxxx 00xx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxx 00000
Attention: President
Facsimile No.: 316/8285046
with a copy to: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: 316/8285803
Buyer: ISG Resources, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: 801/2369730
11.5 JURISDICTION; SERVICE OF PROCESS
Any action or proceeding seeking to enforce any provision of, or based on any
right arising out of, this Agreement may be brought against any of the parties
in the courts of the State of Kansas, County of Sedgwick, or, if it has or can
acquire jurisdiction, in the United States District Court for the Western
District of Kansas, and each of the parties consents to the jurisdiction of such
courts (and of the appropriate appellate courts) in any such action or
proceeding and waives any objection to venue laid therein. Process in any action
or proceeding referred to in the preceding sentence may be served on any party
anywhere in the world.
11.6 FURTHER ASSURANCES
The parties agree (a) to furnish upon request to each other such further
information, (b) to execute and deliver to each other such other documents, and
(c) to do such other acts and things, all as the other party may reasonably
request for the purpose of carrying out the intent of this Agreement and the
documents referred to in this Agreement.
11.7 WAIVER
The rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by any party in exercising any
right, power, or privilege under this Agreement or the documents referred to in
this Agreement will operate as a waiver of such right, power, or privilege, and
no single or partial exercise of any such right, power, or privilege will
preclude any other or further exercise of such right, power, or privilege or the
exercise of any other right, power, or privilege. To the maximum extent
permitted by applicable law, (a) no claim or right arising out of this Agreement
or the documents referred to in this Agreement can be discharged by one party,
in whole or in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party; (b) no waiver that may be given by a party
will be applicable except in the specific instance for which it is given; and
(c) no notice to or demand on one party will be deemed to be a waiver of any
obligation of such party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this
Agreement or the documents referred to in this Agreement.
11.8 ENTIRE AGREEMENT AND MODIFICATION
This Agreement supersedes all prior agreements between the parties with respect
to its subject matter and constitutes (along with the documents referred to in
this Agreement) a complete and exclusive statement of the terms of the agreement
between the parties with respect to its subject matter. This Agreement may not
be amended except by a written agreement executed by the party to be charged
with the amendment.
11.9 DISCLOSURE LETTER
(a) The disclosures in the Disclosure Letter, and those in any Supplement
thereto, must relate only to the representations and warranties in the
Section of this Agreement to which they expressly relate and not to any
other representation or warranty in this Agreement.
(b) In the event of any inconsistency between the statements in the body of
this Agreement and those in the Disclosure Letter (other than an exception
expressly set forth as such in the Disclosure Letter with respect to a
specifically identified representation or warranty), the statements in the
body of this Agreement will control.
11.10 ASSIGNMENTS, SUCCESSORS, AND NO THIRDPARTY RIGHTS
Neither party may assign any of its rights under this Agreement without the
prior consent of the other parties. Subject to the preceding sentence, this
Agreement will apply to, be binding in all respects upon, and inure to the
benefit of the successors and permitted assigns of the parties. Nothing
expressed or referred to in this Agreement will be construed to give any Person
other than the parties to this Agreement any legal or equitable right, remedy,
or claim under or with respect to this Agreement or any provision of this
Agreement. This Agreement and all of its provisions and conditions are for the
sole and exclusive benefit of the parties to this Agreement and their successors
and assigns.
11.11 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by any court
of competent jurisdiction, the other provisions of this Agreement will remain in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
11.12 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this Agreement are provided for convenience only and
will not affect its construction or interpretation. All references to "Section"
or "Sections" refer to the corresponding Section or Sections of this Agreement.
All words used in this Agreement will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
11.13 TIME OF ESSENCE
With regard to all dates and time periods set forth or referred to in this
Agreement, time is of the essence.
11.14 GOVERNING LAW
This Agreement will be governed by the laws of the State of Kansas without
regard to conflicts of laws principles.
11.15 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as of the date first written above.
Seller: Buyer:
Xxxx Carbon, Inc. ISG Resources, Inc.
By: By:
Name: Name:
Title: Title:
