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EXHIBIT 2
STOCK PURCHASE AGREEMENT
between
CSR AMERICA, INC.,
as Seller
and
MARTIN MARIETTA MATERIALS, INC.,
as Buyer
Dated as of May 28, 1997
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RECITALS..........................................................................................................1
BACKGROUND STATEMENT..............................................................................................1
STATEMENT OF AGREEMENT............................................................................................2
ARTICLE 1. CERTAIN DEFINITIONS................................................................................2
1.1. Definitions...........................................................................................2
ARTICLE 2. PURCHASE AND SALE.................................................................................20
2.1. Sale of Shares; Other Agreements.....................................................................20
2.2. Purchase Price.......................................................................................20
(a) Amount..................................................................................20
(b) Payment of Purchase Price...............................................................21
(c) Reduction of Purchase Price.............................................................21
2.3. Working Capital Adjustment...........................................................................22
(a) Estimated Working Capital Statement.....................................................22
(b) Estimated Working Capital Adjustment....................................................23
(c) Preparation of Closing Date Working Capital Statement...................................23
(d) Review of Closing Date Working Capital Statement........................................24
(e) Reconciliation and Payment of Working Capital Amount....................................25
2.4. Marketable Product Inventory.........................................................................27
2.5. Non-Compete Agreement................................................................................29
2.6. Supply Agreements....................................................................................29
ARTICLE 3. CONDUCT AND REORGANIZATION OF BUSINESS PRIOR TO CLOSING...........................................30
3.1. Michigan Stock Transfer..............................................................................30
3.2. Loaned Equipment.....................................................................................30
3.3. Intellectual Property Transfer.......................................................................30
3.4. Access and Information...............................................................................32
3.5. [INTENTIONALLY OMITTED]..............................................................................34
3.6. [INTENTIONALLY OMITTED]..............................................................................34
3.7. [INTENTIONALLY OMITTED]..............................................................................34
3.8. Public Announcement..................................................................................34
3.9. Seller-Assumed Liabilities...........................................................................34
(a) Restructuring...........................................................................34
(b) Land Reclamation........................................................................35
(c) Income Taxes and Other Payments.........................................................35
(d) Pension and Other Benefits..............................................................36
(e) Liabilities for Intercompany Employees..................................................36
(f) Discontinued Operations.................................................................37
(g) Seller-Assumed Environmental Matters....................................................37
(h) Violations of Law.......................................................................37
(i) Other...................................................................................37
3.10. Company-Retained Liabilities........................................................................38
(a) Normal Course Liabilities...............................................................38
(b) Land Reclamation........................................................................38
(c) Contracts...............................................................................38
(d) Certain Environmental Liabilities.......................................................39
(e) Other Liabilities.......................................................................39
(f) Income Taxes............................................................................39
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ARTICLE 4. OTHER AGREEMENTS..................................................................................39
4.1. [INTENTIONALLY OMITTED]..............................................................................39
4.2. Service Level Agreement..............................................................................39
4.3. Audited Financial Statements.........................................................................40
4.4. [INTENTIONALLY OMITTED]..............................................................................40
4.5. [INTENTIONALLY OMITTED...............................................................................40
4.6. Employee Plans.......................................................................................40
(a) CSR America, Inc. Retirement Income Plan.................................................40
(b) American Aggregates Corporation Non-Contributory Pension Plan and American
Aggregates Corporation Hourly Pension Plan...........................................47
(c) CSR America, Inc. 401(k) Retirement Savings Plan and CSR America, Inc.
Profit-Sharing Retirement Plan.......................................................48
(d) Multiemployer Retirement Plans...........................................................50
(e) Welfare Benefit Plans....................................................................51
(f) Limitation...............................................................................53
(g) Other....................................................................................53
(h) Cooperation..............................................................................54
4.7. Employees............................................................................................54
(a) Non-Solicitation.........................................................................54
(b) Project Rocket...........................................................................54
4.8. Antitrust Litigation.................................................................................55
4.9. Harding Street.......................................................................................55
4.10. Landfills...........................................................................................56
4.11. Recycling...........................................................................................57
4.12. Tax Allocation......................................................................................57
4.13. Storage at Marble Cliff.............................................................................58
4.14. Maintenance of Minimum Net Worth....................................................................58
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF SELLER..........................................................59
5.1. The Company Capital Stock............................................................................59
5.2. Organization and Standing............................................................................61
(a) Seller..................................................................................61
(b) The Company.............................................................................61
(c) D&H.....................................................................................61
5.3. No Violation.........................................................................................61
5.4. Enforceability.......................................................................................62
5.5. Insurance; Bonds.....................................................................................62
5.6. Liabilities, Liens and Encumbrances..................................................................63
5.7. Absence of Certain Changes...........................................................................64
5.8. Financial Matters....................................................................................64
(a) Financial Statements....................................................................64
(b) Sales of Products.......................................................................65
5.9. Properties...........................................................................................65
(a) Owned Properties........................................................................65
(b) Leased Properties.......................................................................66
(c) Contract and Option Properties..........................................................67
(d) Title...................................................................................67
(e) Condition...............................................................................69
(f) Reserves................................................................................70
5.10. Contracts...........................................................................................70
(a) Customer Orders.........................................................................70
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(b) Other Contracts.........................................................................70
5.11. No Litigation.......................................................................................72
5.12. Operations Conducted Lawfully.......................................................................72
5.13. Environmental Protection............................................................................73
(a) Definitions.............................................................................73
(b) Disclosures of Environmental Permits, Etc...............................................74
(c) Special Environmental Representations and Warranties....................................75
5.14. Intellectual Properties.............................................................................77
5.15. Zoning............................................................................................. 78
5.16. Taxes...............................................................................................79
5.17. Citations and Litigation............................................................................80
5.18. No Consents.........................................................................................80
5.19. Labor Relations.....................................................................................80
5.20. Employee Plans......................................................................................81
(a) Schedule of Plans.......................................................................81
(b) Qualification...........................................................................82
(c) Prohibited Transactions; Reportable Events..............................................84
(d) Funding.................................................................................85
(e) Compliance..............................................................................86
(f) Extended Representations for Title IV of ERISA..........................................86
(g) Accuracy of Information.................................................................87
5.21. Prior Conduct of Business...........................................................................87
5.22. Assets Related to...................................................................................89
5.23. Ownership of Assets.................................................................................89
5.24. Title to Shares.....................................................................................89
5.25. Additional Information..............................................................................89
ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF BUYER...........................................................89
6.1. Organization and Standing of Buyer...................................................................90
6.2. No Violation.........................................................................................90
6.3. Enforceability.......................................................................................90
6.4. No Litigation........................................................................................91
ARTICLE 7. [INTENTIONALLY OMITTED]...........................................................................91
ARTICLE 8. THE CLOSING.......................................................................................91
8.1. Closing............................................................................................. 91
8.2. Deliveries at Closing................................................................................91
(a) Deliveries by Seller....................................................................91
(i) Corporate Proceedings...........................................................91
(ii) Consents and Estoppel Certificates.............................................92
(iii) Ancillary Agreements..........................................................92
(iv) Title Insurance................................................................92
(b) Deliveries by Buyer.....................................................................92
(i) Payment of Purchase Price.......................................................92
(ii) Corporate Proceedings..........................................................93
(iii) Ancillary Agreements..........................................................93
ARTICLE 9. [INTENTIONALLY OMITTED]...........................................................................93
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ARTICLE 10. INDEMNIFICATION..................................................................................93
10.1. Indemnification by Seller...........................................................................93
10.2. Indemnification by Buyer............................................................................97
10.3. Procedure...........................................................................................98
(a) Notice..................................................................................98
(b) Action on Claims........................................................................99
(i) Acknowledgment of Obligation of Indemnity...............................................99
(ii) Acknowledged Claims....................................................................99
(iii) Unacknowledged Third Party Claims....................................................100
(c) Satisfaction of Non-Third Party Claims.................................................101
(i) Nonremedial Claims.....................................................................101
(ii) Remedial Claims.......................................................................102
(d) Actions Required to Minimize Damages and Penalties.....................................103
10.4. Nature and Survival of Representations and Warranties and Certain Liabilities......................104
10.5. [INTENTIONALLY OMITTED]............................................................................105
10.6. Remediation........................................................................................105
10.7. Failure to Notify, etc.............................................................................110
10.8. Fees ..............................................................................................110
ARTICLE 11. TAX MATTERS.....................................................................................111
11.1. Certain Tax Returns................................................................................111
11.2. Carrybacks.........................................................................................112
11.3. Tax Refunds........................................................................................112
11.4. Characterization of Indemnification Payments.......................................................112
11.5. Tax Effect.........................................................................................113
11.6. Control of Proceedings in Tax Related Matters......................................................114
11.7. Transfer Taxes.....................................................................................115
11.8. Consistency with Other Articles....................................................................116
ARTICLE 12. GENERAL PROVISIONS..............................................................................116
12.1. Expenses...........................................................................................116
12.2. Brokerage..........................................................................................116
12.3. Notices............................................................................................117
12.4. Further Assurances.................................................................................118
12.5. Consent to Jurisdiction............................................................................118
12.6. Waiver of Jury Trial...............................................................................119
12.7. Assignment; Successors In Interest.................................................................119
(a) Assignment.............................................................................119
(b) Binding Nature.........................................................................119
12.8. Construction.......................................................................................120
12.9. Counterparts.......................................................................................120
12.10. Definition of Knowledge...........................................................................120
12.11. Definition of Company.............................................................................120
12.12. Severability......................................................................................121
12.13. Obligations of the Company........................................................................121
12.14. Entire Agreement..................................................................................121
12.15. Amendment; Waiver.................................................................................122
12.16. Headings..........................................................................................122
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EXHIBITS
Exhibit A Form of Non-Compete Agreement
Exhibit B-1 Form of Indianapolis Hydro
Conduit Agreement
Exhibit B-2 Form of Delaware Hydro Conduit
Agreement
Exhibit C Form of Camak Agreement
Exhibit D Service Level Agreement
Exhibit E Management Services Agreement
Exhibit F Capital Budget
SCHEDULES
Schedule 1.1(a) Working Capital
Schedule 1.1(b) Construction Landfills
Schedule 2.2(b) Other Purchase Price Items
Schedule 2.3(c) Agreed-Upon Procedures
Schedule 3.9(i) Other Seller-Assumed
Liabilities
Schedule 3.10(c) Company-Retained Contract
Liabilities
Schedule 3.10(d) Environmental Liabilities
Schedule 4.6(a)(1) Company CSR NHCE RIP
Participants
Schedule 4.6(a)(2) Employee Plan Assumptions
Schedule 4.6(a)(3) Company CSR HCE RIP
Participants
Schedule 4.6(b) Hourly Pension Plan
Participants
Schedule 4.6(e)(1) CSR Flex Participants
Schedule 4.6(e)(2) Retiree Benefits Plan
Participants
Schedule 4.7(b) Project Rocket Employees
Schedule 5.3 Violations
Schedule 5.5(a) Insurance
Schedule 5.5(b) Current Insurance
Schedule 5.6 Liabilities, Liens and
Encumbrances
Schedule 5.7 Certain Changes
Schedule 5.8(b) Sales of Products
Schedule 5.9(a) Owned Real Property
Schedule 5.9(b) Leases
Schedule 5.9(c) Contract and Option Properties
Schedule 5.9(d)(ii) Use of Leased Real Property
Schedule 5.9(d)(iii) Title to Personal Property
Schedule 5.9(d)(iv) Encroachments
Schedule 5.9(f) Reserves Estimates
Schedule 5.10(a) Customer Orders
Schedule 5.10(b)(1) Other Contracts
Schedule 5.10(b)(2) Defaults
Schedule 5.11 Litigation
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Schedule 5.12 Operations
Schedule 5.13 Environmental
Schedule 5.15 Zoning Exceptions
Schedule 5.16 Tax Carryovers and Extensions
Schedule 5.17 Citations
Schedule 5.18 Consents
Schedule 5.19 Labor Relations
Schedule 5.20(a)(1) Company Employee Plans
Schedule 5.20(a)(2) Multiemployer Plans
Schedule 5.20(a)(3) Unpaid Compensation and Fringe
Benefit Liabilities
Schedule 5.20(a)(4) Certain Welfare Plans
Schedule 5.20(b) Employee Pension Benefit Plans
Schedule 5.20(c)(1) Prohibited Transactions
Schedule 5.20(c)(2) Reportable Events
Schedule 5.20(c)(3) Certain Liabilities, Liens and
Encumbrances
Schedule 5.20(d)(1) Defined Benefit Pension Plans
Schedule 5.20(d)(2) Certain Employer Liabilities
Schedule 5.20(d)(3) Projected Benefit Obligations
Schedule 5.20(e) Plan Claims
Schedule 5.20(g) Employee Plan Information
Schedule 5.22 Project Rocket
Schedule 5.23 Certain Assets
Schedule 5.25 Additional Information
Schedule 8.2(a)(iv) Affidavit
Schedule 12.15 Waiver of Certain Rights of
Action
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of the 28th
day of May, 1997, between CSR AMERICA, INC., a Georgia corporation ("Seller"),
and MARTIN MARIETTA MATERIALS, INC., a North Carolina corporation ("Buyer").
RECITALS
Seller desires to sell, and Buyer desires to purchase, all of the
issued and outstanding shares (the "Shares") of capital stock of American
Aggregates Corporation, a Delaware corporation (the "Company"), and certain
intellectual property described herein, for the consideration and on the terms
set forth in this Agreement. In addition, Buyer and Seller desire to enter into
certain agreements in connection with the sale and purchase of the Shares. The
term "Company" is further defined in paragraph 12.11 hereof.
BACKGROUND STATEMENT
The Company is a wholly owned Subsidiary of Seller and operates an
aggregates business (the "Business") directly and through its two wholly owned
Subsidiaries, American Aggregates of Michigan, Inc., a Michigan corporation
("Michigan"), and Dredging & Hauling, Inc., a Delaware corporation ("D&H").
Prior to the purchase of the Shares, it is intended that the Company would be
reorganized so that, at or prior to Closing, the Company will, among other
things, (i) distribute all of the capital stock of Michigan to Seller (see
paragraph 3.1 below) and (ii) reacquire possession of any equipment loaned
either to Michigan or to
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another Affiliate of Seller so that the Company will own or lease all of the
assets used in or owned by the Acquired Business (see paragraph 3.2 below). As a
result of this reorganization, Buyer intends to acquire, through the purchase of
the Shares, the business and operations of the Company as so reorganized.
STATEMENT OF AGREEMENT
The parties hereto, in consideration of the mutual promises set forth
below, the mutuality and sufficiency of which are hereby acknowledged, hereby
agree as follows:
ARTICLE 1.
CERTAIN DEFINITIONS
1.1. Definitions
"Acquired Assets" shall mean all assets used in or owned by the
Acquired Business.
"Acquired Business" shall mean the business and operations of the
Company after taking into account the Michigan Stock Transfer, the transfer of
equipment as contemplated by paragraph 3.2 and the transfer of Intellectual
Property under paragraph 3.3 (without regard to whether Intellectual Property is
transferred to the Company or Buyer in accordance with paragraph 3.3).
"Adjustment Workpapers" shall mean the workpapers of Seller's
independent accountants in connection with the Closing Date Working Capital
Statement.
"Affiliate" shall have the meaning set forth in Rule 12b-2 of the
regulations promulgated under the 1934 Act.
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"Aggregate Basket Amount" shall mean, at any given time, the sum of (i)
$3,000,000 plus (ii) the Antitrust Litigation Amount received up to such time.
"Antitrust Litigation" shall mean the pending antitrust action, Vulcan
Materials Company, et al. vs. ICI Explosives USA, Inc. et al.
"Antitrust Litigation Amount" shall mean the amount, if any, of
proceeds actually received by the Company subsequent to the Closing from the
Antitrust Litigation, net of all Taxes, costs, fees and other amounts expended
or accrued by or on behalf of the Company in connection with such action or in
connection with the receipt, accrual or collection of any such proceeds.
"Audited Financial Statements" shall mean the audited financial
statements of the Acquired Business, prepared in accordance with GAAP.
"Baseline Amount" shall mean that amount equal to the average Working
Capital of the Company as of the end of each month in the twelve month period
ending on the applicable Estimation Date (as defined below) as adjusted and
calculated in a manner consistent with Schedule 1.1(a) attached hereto.
"Basket Construction Landfills" shall mean those Landfills identified
as Basket Construction Landfills on Schedule 1.1(b) attached hereto.
"Basket Environmental Matters" shall mean all Environmental Matters to
the extent occurring on, in or under (including, without limitation,
Environmental Matters with respect to groundwater) the Owned Real Property or
the Leased
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Real Property on which the Company is actively conducting operations as of the
date hereof. "Basket Environmental Matters" shall not, however, include any
Environmental Matter that is either a Company-Retained Liability or a
Seller-Assumed Liability pursuant to this Agreement or the Schedules hereto.
"Basket Liabilities" shall mean, collectively, (i) Category 1
Liabilities, (ii) Category 2 Liabilities and (iii) Category 3 Liabilities.
"Business" shall have the meaning ascribed thereto in the Background
Statement of this Agreement.
"Business Day" shall mean any day which is not a Saturday, Sunday, or
other day on which banks in the State of North Carolina are authorized or
required to close.
"Buyer Contract Claims" shall have the meaning ascribed thereto in
paragraph 10.2(a)(ii) of this Agreement.
"Camak Agreement" shall have the meaning ascribed thereto in paragraph
2.6 of this Agreement.
"Category 1 Liabilities" shall mean all liabilities of the Company of
any nature whatsoever arising out of, relating to or in connection with any
period prior to Closing or any condition or state of facts existing at or prior
to Closing, whether known or unknown, arising out of, relating to or in
connection with Taxes (other than those Taxes included within Seller-Assumed
Liabilities pursuant to paragraph 3.9(c) hereof); provided, however, that
Category 1 Liabilities shall not include (A) Seller-Assumed Liabilities and (B)
Company-Retained Liabilities.
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"Category 2 Liabilities" shall mean all liabilities of the Company of
any nature whatsoever arising out of, relating to or in connection with any
period prior to Closing or any condition or state of facts existing at or prior
to Closing, whether known or unknown, other than (i) Seller-Assumed Liabilities,
(ii) Company-Retained Liabilities, (iii) Category 1 Liabilities and (iv)
Category 3 Liabilities. Without limiting the generality of the foregoing,
Category 2 Liabilities shall include all liabilities of the Company of any
nature whatsoever (except those excluded by clauses (i) and (ii) of the
immediately preceding sentence) arising out of, relating to or in connection
with any period prior to Closing or any condition or state of facts existing at
or prior to Closing, whether known or unknown, arising out of, relating to or in
connection with Basket Environmental Matters.
"Category 3 Liabilities" shall mean all liabilities of the Company of
any nature whatsoever (whether sounding in tort, contract, warranty or any other
type of claim, and whether or not relating to personal injury) arising out of,
relating to or in connection with any period prior to Closing or any condition
or state of facts existing at or prior to Closing, whether known or unknown,
arising out of, relating to or in connection with any product produced or sold
by the Company, including, without limitation, claims arising out of, relating
to or in connection with the defective or unsafe nature of any of its products
and/or the quality or performance of any of its products; provided, however,
that Category 3 Liabilities shall not include
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(A) Seller-Assumed Liabilities and (B) Company-Retained Liabilities.
"Claim" shall have the meaning ascribed thereto in paragraph 10.3(a) of
this Agreement.
"Closing" shall have the meaning ascribed thereto in paragraph 8.1 of
this Agreement.
"Closing Date" shall have the meaning ascribed thereto in paragraph 8.1
of this Agreement.
"Closing Date Shares Purchase Price" shall have the meaning ascribed
thereto in paragraph 2.2(a) of this Agreement.
"Closing Date Working Capital Statement" shall have the meaning
ascribed thereto in paragraph 2.3(c) of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Company Employee Plan" shall mean any Employee Plan that the Company
maintains or contributes to or is required to contribute to or otherwise
participates in or has within the preceding six years maintained, contributed to
or been required to contribute to or otherwise participated in.
"Company-Retained Liabilities" shall have the meaning ascribed thereto
in paragraph 3.10 of this Agreement. Certain other matters are also specifically
identified as "Company-Retained Liabilities" elsewhere in this Agreement and the
Schedules hereto.
"Company's Controlled Group" means a controlled group that includes the
Company as determined under section 4001(a)(14) of ERISA or a single employer
that includes the Company as
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determined under the rules of section 414(b), (c), (m) or (o) of the Code (but
not limited to the purposes of said sections).
"Contracts" shall mean all contracts, understandings, commitments or
agreements, whether oral or written, including Customer Orders, pertaining to
the Acquired Business.
"Controlled Group Employee Plan" shall mean any Employee Plan that the
Company's Controlled Group (or any member thereof, including the Company)
maintains or contributes to or is required to contribute to or otherwise
participates in.
"Customer Orders" shall have the meaning ascribed thereto in paragraph
5.10(a) of this Agreement.
"D&H Shares" shall have the meaning ascribed thereto in paragraph
5.1(d) of this Agreement.
"Delaware Hydro Conduit Agreement" shall have the meaning ascribed
thereto in paragraph 2.6 of this Agreement.
"Discontinued Operations" shall mean any business, operations, assets
or properties of the Company or its predecessors and their respective Affiliates
or any portion of any such business, operations, assets or properties that are
not part of the business, operations, assets or properties of the Company on the
Closing Date.
"EEOC" shall have the meaning ascribed thereto in paragraph 5.19 of
this Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Effective Time" shall have the meaning ascribed thereto in paragraph
8.1 of this Agreement
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"Employee Plan" shall mean any group health or medical, dental, vision,
drug, life insurance, death benefit, accident, disability, sick, vacation,
cafeteria, flex, 125, scholarship, educational assistance, dependent care, legal
assistance, supplemental unemployment insurance, training, apprenticeship,
employee loan, relocation, fringe benefit, VEBA, pension, retirement, deferred
compensation, profit-sharing, 401(k), bonus, incentive, stock option, stock
purchase, stock appreciation, stock bonus or grant, insurance, welfare,
severance, change of control, parachute, compensation or any other employee
benefit plan, program, policy, contract or arrangement, whether formal or
informal, oral or written, qualified or unqualified or funded or unfunded,
including, but not limited to, any "employee benefit plan" as such term is
defined in ERISA.
"Environmental Laws" shall have the meaning ascribed thereto in
paragraph 5.13(a) of this Agreement.
"Environmental Matters" shall mean any and all environmental conditions
or circumstances, existing at any time on or prior to the date hereof, whether
or not at any time lawful. "Environmental Matters" shall be construed in its
most comprehensive sense, specifically including conditions and circumstances
covered by or arising under all Environmental Laws, whether or not such matters
are included within the matters set forth in the representations and warranties
contained in paragraph 5.13 of this Agreement or have otherwise been disclosed
to Buyer on or prior to the date hereof.
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"Estimation Date" shall mean (A) for purposes of the Estimated Working
Capital Statement, the last day of the month immediately preceding the month in
which the Closing occurs or, if the Closing occurs prior to the tenth business
day of the month, the last day of the month prior to such immediately preceding
month, and (B) for purposes of the Closing Date Working Capital Statement, the
last day of the month immediately preceding the month in which the Closing
occurs.
"Estimated Working Capital Statement" shall have the meaning ascribed
thereto in paragraph 2.3(a) of this Agreement.
"Final Shares Purchase Price" shall have the meaning ascribed thereto
in paragraph 2.3(e).
"Final Working Capital Statement" shall have the meaning ascribed
thereto in paragraph 2.3(d) of this Agreement.
"Financial Statements" shall have the meaning ascribed thereto in
paragraph 5.8(a) of this Agreement.
"Financial Statement Adjustments" shall mean such adjustments to the
consolidated financial statements of the Company as are required to (i) present
such financial statements in accordance with GAAP applied on a basis consistent
with prior periods and (ii) reflect the elimination of the Michigan operations
of the Company.
"GAAP" shall mean generally accepted United States accounting
principles, as in effect from time to time.
"Governmental Authority" shall mean any:
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(a) nation, state, county, city, town, village, district, or other
jurisdiction of any nature;
(b) federal, state, local, municipal, foreign, or other government;
(c) governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official, or entity
and any court or other tribunal);
(d) multi-national organization or body; or
(e) body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing authority
or power of any nature.
"Harding Street" shall have the meaning ascribed thereto in paragraph
4.9(a) of this Agreement.
"Harding Street Purchase Price" shall have the meaning ascribed thereto
in paragraph 4.9(a) of this Agreement.
"Hazardous Materials" shall have the meaning ascribed thereto in
paragraph 5.13(b) of this Agreement.
"Income Taxes" shall mean all Taxes based upon income, including, but
not limited to, income Taxes, franchise Taxes based upon income and any Taxes
paid in lieu of (or because they are greater than) or in the nature of any of
the foregoing, including, without limitation, the Ohio corporation franchise Tax
(an excise tax computed both on a net income tax basis and a net worth basis and
paid on the basis yielding the higher Tax) and
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the Indiana adjusted gross income, supplemental net income and gross income
Taxes.
"Indemnitee" shall have the meaning ascribed thereto in paragraph
10.3(a) of this Agreement.
"Indemnitor" shall have the meaning ascribed thereto in paragraph
10.3(a) of this Agreement.
"Indianapolis Hydro Conduit Agreement" shall have the meaning ascribed
thereto in paragraph 2.6 of this Agreement.
"Initial Shares Purchase Price" shall mean $222,000,000.
"Intellectual Property" shall mean all patents, trade secrets, software
and other intellectual property of Seller, the Company and their Affiliates used
in or pertaining to the Acquired Business.
"Intellectual Property Purchase Price" shall have the meaning ascribed
thereto in paragraph 2.2(a) of this Agreement.
"Landfills" shall mean, whether known or unknown, all (i) waste dumps,
(ii) disposal, treatment and storage sites and (iii) any other real property at
which any solid or hazardous waste has been placed, abandoned, disposed of,
treated or stored.
"Leased Real Property" shall mean all real property, and the
structures, improvements, buildings and facilities located thereon, used or
available for use in the Acquired Business that the Company leases or subleases
or in which the Company has any other non-fee interest.
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"Leases" shall mean all leases, subleases, licenses or other agreements
to which the Company is a party which govern the use or occupancy of any Leased
Real Property.
"Losses" shall have the meaning ascribed thereto in paragraph 10.1 of
this Agreement.
"MSHA" shall mean the Mine Safety and Health Administration of the
United States Department of Labor.
"Management Services Agreement" shall have the meaning ascribed thereto
in paragraph 4.9(d) of this Agreement.
"Marketable Product Inventory" shall have the meaning ascribed thereto
in paragraph 2.4 of this Agreement.
"Michigan" shall have the meaning ascribed thereto in the Background
Statement of this Agreement.
"Michigan Stock Transfer" shall have the meaning ascribed thereto in
paragraph 3.1 of this Agreement.
"Multiemployer Plan" means a multiemployer plan as defined in section
4001(a)(3) of ERISA.
"1934 Act" shall have the meaning ascribed thereto in paragraph 4.3 of
this Agreement.
"1933 Act" shall have the meaning ascribed thereto in paragraph 4.3 of
this Agreement.
"NLRB" shall have the meaning ascribed thereto in paragraph 5.19 of
this Agreement.
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"Nondisputable Loss Amounts" shall have the meaning ascribed thereto in
paragraph 10.6(b) of this Agreement.
"Non-Compete Agreement" shall have the meaning ascribed thereto in
paragraph 2.5 of this Agreement.
"Non-Compete Agreement Purchase Price" shall have the meaning ascribed
thereto in paragraph 2.2(a) of this Agreement.
"OSHA" shall mean the Occupational Safety and Health Administration of
the United States Department of Labor.
"Other Intellectual Property" shall have the meaning ascribed thereto
in paragraph 3.3(b) of this Agreement.
"Owned Real Property" shall mean all real property, except for Leased
Real Property, and the structures, improvements, buildings and facilities
located thereon used or available for use in the Acquired Business, including,
without limitation, all real property and the structures, improvements,
buildings and facilities located thereon listed on Schedule 5.9(a) to this
Agreement.
"PBGC" shall have the meaning ascribed thereto in paragraph 5.20(b) of
this Agreement.
"PCBs" shall have the meaning ascribed thereto in paragraph 5.13(c) of
this Agreement.
"Permitted Exceptions" shall mean (i) taxes not then delinquent; (ii)
workmen's, repairmen's or other similar liens imposed by law but not yet
asserted arising or incurred in the ordinary course of business with respect to
obligations which are
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not overdue; (iii) laws, ordinances and governmental regulations regulating the
use or occupancy of the Owned Real Property and Leased Real Property or the
character, dimensions or locations of the improvements thereon, provided that
none of the same are or would be violated by the continued or contemplated use
of any portion of the Owned Real Property or Leased Real Property for the
purposes for which it has been customarily used by the Company or for the
purposes contemplated by the Company; (iv) exceptions discovered by an
inspection or survey or other imperfections of title that do not make title
unmarketable and are not so substantial as to impair the value of or interfere
with the continued or contemplated use of any portion of the Owned Real Property
or Leased Real Property or Acquired Assets for the purposes for which they have
been used by the Company or for the purposes contemplated by the Company; and
(v) the matters set forth on Schedules 5.6 and 5.9(d) hereof.
"Person" shall mean any individual, company, 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 Authority.
"Prime Rate" shall have the meaning ascribed thereto in paragraph
2.3(e)(iii) of this Agreement.
"Purchase Price" shall have the meaning ascribed thereto in paragraph
2.2(a) of this Agreement.
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"RCRA" shall have the meaning ascribed thereto in paragraph 5.13(a) of
this Agreement.
"Remedial Standard" shall have the meaning ascribed thereto in
paragraph 10.3(c) of this Agreement.
"SWDA" shall have the meaning ascribed thereto in paragraph 5.13(a) of
this Agreement.
"Seller-Assumed Construction Landfills" shall mean those Landfills
identified as Seller-Assumed Construction Landfills on Schedule 1.1(b) attached
hereto.
"Seller-Assumed Environmental Matters" shall mean all Environmental
Matters other than Basket Environmental Matters, and shall expressly include (i)
all Environmental Matters relating to Seller-Assumed Landfills and (ii) all
Environmental Matters relating to Seller-Assumed Construction Landfills.
"Seller-Assumed Landfills" shall mean all Landfills other than Basket
Construction Landfills and Seller-Assumed Construction Landfills.
"Seller-Assumed Liabilities" shall have the meaning ascribed thereto in
paragraph 3.9 of this Agreement. Certain other matters are also specifically
identified as "Seller-Assumed Liabilities" elsewhere in this Agreement and the
Schedules hereto.
"Seller Contract Claims" shall have the meaning ascribed thereto in
paragraph 10.1(a)(iii) of this Agreement.
"Seller Reserves" shall have the meaning ascribed thereto in paragraph
5.9(f) of this Agreement.
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"Service Level Agreement" shall have the meaning ascribed thereto in
paragraph 4.6(e)(iii) of this Agreement.
"Shares" shall have the meaning ascribed thereto in the Recitals to
this Agreement.
"Subsidiary" shall mean, 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 (other than securities
or other interests having such power only upon the happening of a contingency
that has not occurred) are held by the Owner or one or more of its Subsidiaries.
"Superfund" shall have the meaning ascribed thereto in paragraph
5.13(a) of this Agreement.
"Supply Agreements" shall have the meaning ascribed thereto in
paragraph 2.6 of this Agreement.
"Supply Agreements Purchase Price" shall have the meaning ascribed
thereto in paragraph 2.2(a) of this Agreement.
"Tax" shall mean (i) any Federal, state, local or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes imposed under Section
59A of the Code), customs duties, capital stock, franchise, profits,
withholding, social security (or similar), sales, use, transfer,
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registration, value added, alternative or add-on minimum, estimated, or other
tax of any kind whatsoever, including any interest, penalty, or addition
thereto, whether disputed or not, imposed by any U.S. federal, state, local or
foreign taxing authority and (ii) any liability of any Person for the payment of
any amount of the type described in clause (i) above as a result of the Person
being a member of an affiliated, consolidated or combined group with, or a
successor to or transferee of, any other Person at any time prior to the Closing
Date.
"Tax Return" shall mean any return, declaration, report, claim for
refund, information return, statement, or other similar document relating to
Taxes, including any schedule or attachment thereto, and including any amendment
thereto.
"Third Party Claim" shall have the meaning ascribed thereto in
paragraph 10.3(b) of this Agreement.
"Third Party Indemnity Costs" shall have the meaning ascribed thereto
in paragraph 10.1(d) of this Agreement.
"Third Party Losses" shall mean any and all claims, causes of action,
suits, proceedings, demands, assessments, judgments, losses, damages, costs,
expenses (including, without limitation, attorneys' fees and accountants' fees)
and liabilities whatsoever arising out of, related to, resulting from or based
upon a Third Party Claim to the extent such amounts would constitute Losses
under subparagraphs 10.1(a)(i) through 10.1(a)(iii) had they been incurred
directly by Buyer or the Company.
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"Third Party Purchaser" shall have the meaning ascribed thereto in
paragraph 10.1(d) of this Agreement.
"True-Up Date" shall have the meaning ascribed thereto in paragraph
2.3(c) of this Agreement.
"Unaffiliated Firm" shall mean Coopers & Lybrand, LLP or such other
nationally-recognized independent public accounting firm other than the
independent accountants of Buyer, Seller or their Affiliates as may be mutually
selected by Buyer and Seller.
"Violation of Law Liabilities" shall mean all liabilities and
obligations of the Company (whether imposed, assessed or awarded as a result of
a statutory or common law claim or otherwise) for fines, penalties and damages
in respect of or arising out of facts or circumstances that would constitute
violations by the Company of statute, rule, regulation or ordinance, whenever
imposed, assessed or awarded (and amounts paid in settlement thereof) arising
out of, relating to or in connection with any period prior to Closing or any
condition or state of facts existing at or prior to Closing (or, to the extent
set forth in the following sentence, which persists thereafter from the Closing
Date), whether known or unknown. Any such fine, penalty or damage or amount paid
in settlement thereof ("Assessment Amount") that arises out of, relates to or is
in connection with a matter (an "Underlying Matter") where the period in respect
of which such fine or penalty has been imposed, assessed or awarded or
settlement made (the "Assessment Period") extends beyond the Closing Date shall
be a Violation of Law Liability to the following extent: (i) if the Assessment
Period
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only includes the period prior to the six month anniversary of the Closing Date,
the entire amount of such Assessment Amount shall be a Violation of Law
Liability, (ii) if the Assessment Period includes any period following the six
month anniversary of the Closing Date and Buyer shall not have contributed to
such Underlying Matter, the entire Assessment Amount shall be a Violation of Law
Liability and (iii) if the Assessment Period includes any period following the
six month anniversary of the Closing Date and Buyer shall have contributed to
such Underlying Matter, the portion of such Assessment Amount that shall be a
Violation of Law Liability shall bear the same ratio to the total Assessment
Amount as the Assessment Period prior to the Closing Date bears to the entire
Assessment Period (both before and after the Closing Date), unless a more
accurate allocation can be made (such as, for example, an allocation based on
sales where the Assessment Amount is based on sales), in which case such more
accurate allocation shall be utilized.
"Working Capital" shall mean, with respect to the Acquired Business,
the difference between (a) current assets and (b) current liabilities, as
adjusted and calculated in a manner consistent with Schedule 1.1(a) attached
hereto.
ARTICLE 2.
PURCHASE AND SALE
2.1. Sale of Shares; Other Agreements. Buyer agrees to buy, and Seller
agrees to sell and transfer, subject to and pursuant to the covenants,
conditions, representations and
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warranties contained in this Agreement, the Shares and certain intellectual
property described herein. In addition, Buyer and Seller agree to enter into the
Non-Compete Agreement (as defined below) and the Supply Agreements (as defined
below) in connection with the sale and purchase of the Shares.
2.2. Purchase Price.
(a) Amount. The purchase price for (i) the Shares shall be an
amount equal to $219,331,000 (the "Closing Date Shares Purchase Price",
which has been based on the Estimated Working Capital Statement
referred to in paragraph 2.3(a) and includes the Harding Street
Purchase Price referred to in paragraph 4.9(a) below), (ii) the
transfer under paragraph 3.3 of Intellectual Property owned by Seller
shall be an amount equal to $11,500,000 (the "Intellectual Property
Purchase Price"), (iii) the Non-Compete Agreement shall be an amount
equal to $0 (the "Non-Compete Agreement Purchase Price") and (iv) the
Supply Agreements shall be an amount equal to $1,000,000 (the "Supply
Agreements Purchase Price" and, together with the Closing Date Shares
Purchase Price, the Intellectual Property Purchase Price and the
Non-Compete Agreement Purchase Price, the "Purchase Price").
(b) Payment of Purchase Price. At the Closing, Buyer shall pay
to Seller in immediately available funds an amount equal to the
Purchase Price less the sum of (A) the Harding Street Purchase Price,
(B) the total of the items shown on Schedule 2.2(b) hereto and (C) the
amount set
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forth in paragraph 2.2(c)(i) below. The amount payable at the Closing
shall be based on the Closing Date Shares Purchase Price, which shall
be subject to further adjustment after the Closing Date as set forth in
paragraph 2.3(e) below. The Harding Street Purchase Price shall be
payable as set forth in paragraph 4.9(a) below.
(c) Reduction of Purchase Price. (i) The Purchase Price shall
be reduced by $1,950,000 in consideration of the mutual covenants
provided for in paragraph 4.6 below.
(ii) If, as provided in subparagraph 4.6(a)(ii) below, the
assets transferred to the Hourly Transferee Plan are less than the
benefit liabilities of Company NHCE CSR RIP Participants determined on
the basis of projected benefit obligations based on the assumptions set
forth on Schedule 4.6(a)(2), the Purchase Price shall be reduced by an
amount equal to the amount of said benefit liabilities minus the amount
of the assets transferred, all determined as of Closing. The amount of
such Purchase Price reduction, plus interest thereon at the Prime Rate
from the Closing Date, shall be paid by Seller to Buyer in cash no
later than 120 days after the Closing.
(iii) If, as provided in subparagraph 4.6(a)(iv) below, the
assets transferred to the Designated Transferee Plan as of January 1,
1998 are less than the benefit liabilities of Company HCE CSR RIP
Participants determined as of Closing on the basis of projected benefit
obligations based on the assumptions set forth on Schedule 4.6(a)(2),
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plus interest at the rate of eight percent (8%) per annum, the Purchase
Price shall be reduced by an amount equal to the amount of said benefit
liabilities, plus interest at the rate of eight percent (8%) per annum,
minus the amount of the assets transferred, as of January 1, 1998. The
amount of such Purchase Price reduction, plus interest at the Prime
Rate from January 1, 1998, shall be paid by Seller to Buyer in cash no
later than 120 days after January 1, 1998.
(iv) Subparagraph 4.6(c)(i) below provides for a reduction in
the Purchase Price by the amount reasonably estimated by Seller to be
five-twelfths (5/12) of the profit-sharing contribution that would have
been made under the Salaried 401(k) Plan for plan year 1997. The amount
of such Purchase Price reduction shall be paid by Seller to Buyer in
cash no later than January 1, 1998.
2.3. Working Capital Adjustment.
(a) Estimated Working Capital Statement. Seller has delivered
to Buyer a statement (the "Estimated Working Capital Statement") that
sets forth (i) the components and calculation of Working Capital, as
derived from the consolidated balance sheet of the Company as of the
Estimation Date and (ii) the components and calculation of the Baseline
Amount.
(b) Estimated Working Capital Adjustment. For the avoidance of
doubt, Buyer and Seller acknowledge that the Closing Date Shares
Purchase Price has been determined from the Estimated Working Capital
Statement by adjusting the
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Initial Shares Purchase Price dollar for dollar by the amount by which
Working Capital as of the applicable Estimation Date as set forth on
the Estimated Working Capital Statement differed from the Baseline
Amount as set forth on the Estimated Working Capital Statement.
(c) Preparation of Closing Date Working Capital Statement. As
soon as reasonably practicable, but not later than 15 calendar days
after the 90th calendar day following the Closing Date (the "True-Up
Date"), the Company shall deliver to Buyer and Seller a statement (the
"Closing Date Working Capital Statement") prepared on a basis
consistent with the Estimated Working Capital Statement (except that it
shall reflect the adjustments referred to in paragraph 2.4 or otherwise
provided in Schedule 1.1(a)) from the unaudited balance sheet of the
Company as of the Closing Date (in the case of the Working Capital
components and calculation as of the Closing Date) and the unaudited
(but audited where available) balance sheets of the Company as of the
end of each month in the twelve month period ended on the applicable
Estimation Date (in the case of the Baseline Amount components and
calculation); provided, however, that notwithstanding the foregoing,
the Company shall take into account events occurring or not occurring
subsequent to the Closing Date and on or prior to the True-Up Date in
determining items and amounts to be reflected in the Working Capital as
of the Closing Date. (By way of example, which is not
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intended to be exclusive, if subsequent to the Closing Date and prior
to the True-Up Date the Company were to pay a liability of $50,000 in
respect of a payable accrued at $70,000 as of the Closing Date, the
Working Capital as of the Closing Date would be adjusted to reflect a
payable of $50,000.) The Closing Date Working Capital Statement will be
subject to certain agreed-upon procedures (as set forth on Schedule
2.3(c)) and be accompanied by an agreed-upon procedures report (based
upon the procedures set forth on Schedule 2.3(c)) of Seller's
independent accountants.
(d) Review of Closing Date Working Capital Statement. Within
30 calendar days after receipt of the Closing Date Working Capital
Statement and the giving of access to all Adjustment Workpapers (which
the party or parties engaging the independent accountants shall cause
to be delivered to Buyer and Seller promptly after delivery of the
Closing Date Working Capital Statement), Seller shall either inform
Buyer in writing that the Closing Date Working Capital Statement is
acceptable or object in writing to the Closing Date Working Capital
Statement setting forth a specific description of its objections. If
Seller so objects and the parties do not resolve such objections on a
mutually agreeable basis within 15 calendar days after Buyer's receipt
thereof, the disagreement shall be resolved within an additional 15
calendar day period by an Unaffiliated Firm. The decision of the
Unaffiliated Firm shall be final and binding upon the parties. Upon the
agreement of the
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parties or the decision of such Unaffiliated Firm as to all matters
objected to, or if Seller fails to deliver an objection to Buyer within
the 30 calendar day period provided above in the first sentence of this
paragraph 2.3(d), the Closing Date Working Capital Statement shall be
deemed to be the Final Working Capital Statement (the "Final Working
Capital Statement") and the reconciliation of the working capital
adjustment pursuant to paragraph 2.3(e) shall be based on the Final
Working Capital Statement. Each party shall bear the fees, costs and
expenses of its own accountants and shall share equally the fees, costs
and expenses of such Unaffiliated Firm.
(e) Reconciliation and Payment of Working Capital Amount.
(i) Upon the determination of the Final Working Capital
Statement, the Closing Date Shares Purchase Price shall be
adjusted based on the Final Working Capital Statement (the Closing
Date Shares Purchase Price as so adjusted, the "Final Shares
Purchase Price").
(ii) If the Company's Working Capital as of the Closing Date
set forth on the Final Working Capital Statement exceeds the
Baseline Amount set forth on the Final Working Capital Statement,
then the Final Shares Purchase Price shall be the Initial Shares
Purchase Price increased dollar for dollar by the amount of such
excess, and if the Company's Working Capital as of the
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Closing Date set forth on the Final Working Capital Statement is
less than the Baseline Amount set forth on the Final Working
Capital Statement, the Final Shares Purchase Price shall be the
Initial Shares Purchase Price decreased dollar for dollar by the
amount of the shortfall.
(iii) If the Final Shares Purchase Price determined pursuant
to paragraphs 2.3(e)(i) and (ii) exceeds the Closing Date Shares
Purchase Price, Buyer shall pay to Seller the amount of such
excess, and if the Final Shares Purchase Price determined pursuant
to paragraphs 2.3(e)(i) and (ii) is less than the Closing Date
Shares Purchase Price, Seller shall pay to Buyer the amount of
such shortfall. All amounts payable pursuant to this paragraph
2.3(e)(iii) shall be paid with interest thereon at the Prime Rate,
with such interest to accrue from the Closing Date through the
date of payment. All amounts payable shall be paid in immediately
available funds no later than five business days after
determination of the Final Working Capital Statement. Interest
payable under the provisions of this paragraph shall be computed
on the basis of a 365-day year and the actual days elapsed. For
the purposes of this paragraph, the "Prime Rate" shall mean the
rate of interest published in the Wall Street Journal on the
Closing Date (or, if the Closing Date is on a date on which the
Wall Street Journal is not published, on the
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next following date thereafter on which the Wall Street
Journal is published) as the base rate for corporate loans.
2.4. Marketable Product Inventory. For purposes of determining Working
Capital as of the Closing Date, except as expressly set forth on Schedule
1.1(a), the number of tons of aggregates in the Company's inventory shall
include only inventory that is (i) merchantable and (ii) salable in the ordinary
course of business during the one-year period following the Closing (the
"Marketable Product Inventory"). For purposes of this Agreement the word
"merchantable" shall have the meaning ascribed to such word (i), in the case of
inventory located in the State of Ohio, in Ohio Revised Code Sec. 1302.27 or
(ii), in the case of inventory located in the State of Indiana, in Indiana Code
Sec. 26-1-2-314. Buyer and Seller agree that the number of tons of a
particular size or type of aggregate salable during the one-year period
following the Closing shall be equal to the arithmetic average of the annual
number of tons of such particular size or type of aggregate sold and shipped
during the three years ended March 31, 1997, determined on a product-by-product
and location-by-location basis. If Seller disagrees with respect to the quality
or quantity of the inventory that is included in Marketable Product Inventory in
the Company's Closing Date Working Capital Statement, Seller shall object in
writing to Buyer setting forth a specific description of the items in objection.
If the parties do not resolve such objections on a mutually agreeable basis
within 15 calendar days after Buyer's
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receipt of notice, Buyer and Seller shall submit such specific items in dispute
together with all supporting documentation to an engineering firm mutually
selected by Buyer and Seller for resolution. The fees and expenses of the
engineering firm so selected shall be borne equally by Buyer and Seller. The
engineering firm so selected shall consider the respective positions of Buyer
and Seller and render its determination with respect to each specific item of
Marketable Product Inventory under dispute. Such determination shall be
conclusive and binding upon Buyer and Seller for purposes of determining the
Marketable Product Inventory.
The number of tons of Marketable Product Inventory reflected in the
Working Capital as of the Closing Date shall be based on a physical inventory
conducted in the ordinary course of business prior to March 31, 1997, or if
Buyer so requests, at Buyer's expense, as close to the Closing Date as
practicable, and shall be adjusted to reflect production and shipments between
the physical inventory date and the Closing Date. The adjusted number of tons of
inventory shall be "rolled forward" by the Company from the applicable
production and shipping records and shall be reflected in the Working Capital as
of the Closing Date, but only to the extent that such inventory constitutes
Marketable Product Inventory.
2.5. Non-Compete Agreement. Seller agrees that on the Closing Date it
shall enter into the Non-Competition and Confidentiality Agreement with Buyer in
the form attached as Exhibit A hereto (the "Non-Compete Agreement"). Seller
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acknowledges that Buyer would not consummate the acquisition and transaction
contemplated by this Agreement without the assurance that Seller will not engage
in the activities prohibited by the Non-Compete Agreement as and for the period
set forth therein; and in order to induce Buyer to consummate the acquisitions
and other transactions contemplated by this Agreement, Seller agrees to restrict
its actions as provided in the Non-Compete Agreement. Seller acknowledges that
such restrictions are reasonable in light of the Acquired Business and the
benefits of the acquisition and other transactions contemplated by this
Agreement to Seller.
2.6. Supply Agreements. Buyer and Seller will, and each will cause its
Subsidiaries to, take all actions and do all things necessary, proper and
advisable to execute the supply agreements on the Closing Date in the forms
attached hereto as Exhibit B-1 (the "Indianapolis Hydro Conduit Agreement"),
Exhibit B-2 (the "Delaware Hydro Conduit Agreement"), and Exhibit C (the "Camak
Agreement" and, together with the Indianapolis Hydro Conduit Agreement and the
Delaware Hydro Conduit Agreement, the "Supply Agreements"). Buyer and Seller
agree that of the Supply Agreements Purchase Price, $0 shall be allocated to the
Indianapolis Hydro Conduit Agreement, $0 shall be allocated to the Delaware
Hydro Conduit Agreement, and $1,000,000 shall be allocated to the Camak
Agreement.
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ARTICLE 3.
CONDUCT AND REORGANIZATION OF BUSINESS PRIOR TO CLOSING
3.1. Michigan Stock Transfer. Prior to the Closing Date, Seller will
cause the Company to transfer to Seller, by dividend or otherwise (the "Michigan
Stock Transfer"), all of the capital stock of Michigan.
3.2. Loaned Equipment. Any equipment loaned from the Company and its
Subsidiaries other than Michigan either to Michigan or to another Affiliate of
Seller shall be returned to the Company prior to the Closing Date. Seller shall
return the dredge that had been located at Harding Street to a site specified by
Buyer prior to, on or after the Closing Date.
3.3. Intellectual Property Transfer. (a) At the Closing, Seller will
take such steps as may be necessary so as to ensure that the Company will have
sufficient rights in and to all Intellectual Property whether or not owned or
licensed by the Company (other than the Other Intellectual Property (as defined
in paragraph 3.3(b) below)), on a basis that is royalty-free as to payments to
Seller, sufficient to operate the Acquired Business as currently operated.
(b) Seller shall use its best efforts to transfer or license to the
Company, Buyer or a direct or indirect Subsidiary of Buyer (as Buyer may
determine) all Intellectual Property related to remineralization and microbial
technologies, including, without limitation, the Eco-Min technology (the "Other
Intellectual Property"). Buyer and Seller agree that any such license shall be a
transferable, royalty-free (as to payments to
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Seller) license of all of Seller's, the Company's and their Affiliates' right,
title and interest in and to such Intellectual Property; provided, that Buyer
and Seller agree that Seller shall have no responsibility or obligation to cause
an amendment to the terms of the Other Intellectual Property to effect such
transfer and that, in any event, Seller shall not be liable to Buyer if Buyer
declines to accept transfer of the Other Intellectual Property based solely on
the fact that the terms of the Other Intellectual Property would have to be
altered to effect such transfer.
(c) Notwithstanding that certain Assignment and Variation of Exclusive
License Agreement among Creative Land Management International Pty. Ltd.,
Seller, Buyer and the Company, as among Seller, Buyer and the Company the
provisions of this Agreement shall govern the terms of any assignment of
Intellectual Property (including Other Intellectual Property) contemplated
thereunder, and Sections 4, 5, 6 and 7 of such Assignment and Variation of
Exclusive License Agreement, as among Seller, Buyer and the Company, shall have
no force and effect.
3.4. Access and Information. (a) On the Closing Date or as soon as
practicable thereafter, Seller shall deliver or cause to be delivered to Buyer
all original agreements, documents, books, records and files, including records
and files stored on computer disks or tapes or any other storage medium
(collectively, "Records"), if any, in the possession of Seller relating to the
Company, other than those related to Discontinued Operations, to the extent not
then in the possession of the
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Company and its Subsidiaries, subject to the following exceptions:
(i) Buyer recognizes that certain Records may contain
incidental information relating to the Company and its Subsidiaries or
may relate primarily to Subsidiaries or divisions of Seller other than
the Company and its Subsidiaries, and that Seller may retain such
Records and shall provide copies of the relevant portions thereof to
Buyer; and
(ii) Seller may retain all Records prepared in connection with
the sale of the Shares, including bids received from other parties and
analyses relating to the Company and its Subsidiaries.
(b) Following the Closing Date, Buyer and the Company shall give Seller
and its counsel, accountants and other representatives, reasonable access,
during normal business hours, to all Records of the Acquired Business, and shall
furnish to Seller and its counsel, accountants and other representatives all
such information concerning the affairs of the Company as Seller and its
representatives reasonably may request with respect to the Acquired Business as
operated prior to the Closing.
(c) Following the Closing Date, Seller shall give Buyer and the Company
and their respective counsel, accountants and other representatives reasonable
access, during normal business hours, to all Records relating to the Acquired
Business and Discontinued Operations retained by Seller, and shall furnish to
Buyer and the Company and their respective counsel, accountants and other
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representatives all such information concerning the affairs of the
Company as they and their representatives reasonably may request with respect to
the Acquired Business and Discontinued Operations as operated prior to the
Closing.
(d) Nothing in this paragraph 3.4 shall prohibit either party from
destroying records and other documents in the usual course of its business,
except that (i) Seller shall not have the right to destroy Records that should
have been delivered to Buyer pursuant to this Agreement and (ii), for a period
of seven (7) years following the Closing Date, each party shall use reasonable
efforts not to destroy or dispose of any Records related to the Acquired
Business unless it first offers such Records to the other party in writing and
such other party fails to accept or decline such offer within 90 days of its
being made. Notwithstanding paragraph 3.4(d)(ii) above, Buyer and Seller hereby
acknowledge and agree that failure to comply with such provision shall not
create any liability on the part of the party not in compliance nor create a
defense to any claim made by such party.
3.5. [INTENTIONALLY OMITTED].
3.6. [INTENTIONALLY OMITTED].
3.7. [INTENTIONALLY OMITTED].
3.8. Public Announcement. Buyer and Seller agree that neither party
shall make any public announcement or issue any press release concerning the
transactions contemplated hereby without prior consultation with the other
party, except as a party may determine in good faith is required by law, in
which
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case the party making such announcement or release shall use reasonable efforts
to permit the other party to review such announcement or release in advance to
the extent that compliance with applicable law is not prejudiced.
3.9. Seller-Assumed Liabilities. Notwithstanding any other provision
herein to the contrary, Seller shall assume at the Closing all of the following
obligations and liabilities of the Company (all such obligations and liabilities
of the Company so assumed by Seller are hereinafter collectively referred to as
the "Seller-Assumed Liabilities"):
(a) Restructuring. All obligations and liabilities of any
nature whatsoever including, but not limited to, those obligations and
liabilities of the type referred to in paragraph 3.9(c) below, arising
out of, relating to or in connection with (i) Michigan or the Michigan
Stock Transfer, (ii) the real property at the Grandview tunnel
(Columbus, Ohio) and at Richmond, Indiana, and interests in real
property located in the State of Michigan and (iii) Project Rocket or
the transfer of assets and employees of the Company related to Project
Rocket.
(b) Land Reclamation. Any obligation or liability for
defective, improper or insufficient land reclamation, restoration,
leveling or seeding which has already been performed by the Company or
which was required (by applicable law or any Lease) to be performed by
the Company prior to Closing. For purposes of this Agreement,
applicable law with respect to land reclamation shall
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include only those laws providing for reclamation activities generally
applicable to all quarries, including the grading and reseeding of
overburden after removal of stone deposits in the ordinary course of
business, but not any law relating to specific waste material.
Notwithstanding any provision in this Agreement to the contrary, land
reclamation shall not be construed so to include any liability,
obligation or requirement of any nature whatsoever arising out of or
related to actual or potential soil or groundwater contamination
arising out of events which occurred prior to Closing or circumstances
existing as of or prior to Closing, it being the intent of the parties
that the responsibility for any such liability, obligation or
requirement be governed by the provisions of this Agreement relating to
environmental protection and other provisions of this Agreement.
(c) Income Taxes and Other Payments. All Income Taxes,
deferred payments, intercompany accounts and long-term debt, including
any current portion of long-term debt, arising out of, relating to or
in connection with any period prior to the Closing Date, including,
but not limited to, Taxes arising out of, relating to or in connection
with (i) the Michigan Stock Transfer, (ii) the real property at the
Grandview tunnel (Columbus, Ohio) and at Richmond, Indiana, and
interests in real property located in the State of Michigan and (iii)
Project Rocket and the transfer of assets and employees of the Company
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related to Project Rocket. In cases where Tax Returns of the Company
relate to a period beginning before and ending after the Effective
Time, Seller shall be responsible for the portion of the Taxes due with
respect to such Tax Return to the extent such Taxes are Seller-Assumed
Liabilities under this paragraph 3.9(c), determined on the basis of an
assumed closing of the books of the Company as of the Effective Time.
(d) Pension and Other Benefits. All obligations and
liabilities of any nature whatsoever relating to any Employee Plan
maintained at any time by the Company's Controlled Group with respect
to the period prior to Closing except such obligations or liabilities
for which any amount has been accrued in Working Capital as of the
Closing Date or otherwise expressly assumed by the Company in Article
4 of this Agreement.
(e) Liabilities for Intercompany Employees. All obligations
and liabilities of any nature whatsoever arising out of, relating to
or in connection with the utilization of any employee of the Company
by Seller or any Affiliate of Seller other than the Company.
(f) Discontinued Operations. All obligations and liabilities
of any nature whatsoever arising out of, relating to or in connection
with Discontinued Operations.
(g) Seller-Assumed Environmental Matters. All obligations and
liabilities of any nature whatsoever
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arising out of, relating to or in connection with Seller-Assumed
Environmental Matters.
(h) Violations of Law. All obligations and liabilities of any
nature whatsoever arising out of, relating to or in connection with
Violation of Law Liabilities.
(i) Other. All obligations and liabilities of any nature
whatsoever arising out of, relating to or in connection with the
matters set forth on Schedule 3.9(i) attached hereto. The parties
acknowledge and agree that Schedule 3.9(i) is a list of certain
matters the parties have discussed and (i) the omission of a matter
from such Schedule shall not create any implication that such omitted
matter is not a Seller-Assumed Liability under any other provision of
this Agreement (including the Schedules hereto) and (ii) no
implication shall be drawn from the fact that a matter included on
such Schedule also is defined as a Seller-Assumed Liability pursuant
to another subparagraph of this paragraph 3.9.
3.10. Company-Retained Liabilities. Notwithstanding any other
provision herein to the contrary, the Company (or Martin Marietta Materials
Technologies, Inc. as to specific liabilities set forth on Schedule 3.10(c)
hereto) shall be responsible for all of the following obligations and
liabilities (all such obligations and liabilities are hereinafter collectively
referred to as the "Company-Retained Liabilities"):
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(a) Normal Course Liabilities. Normal course, regularly
recurring current liabilities to the extent, but only to the extent,
reflected in the Working Capital as of the Closing Date set forth on
the Final Working Capital Statement. All normal course, regularly
recurring current liabilities of the Company, to the extent not
expressly included in the Working Capital as of the Closing Date set
forth on the Final Working Capital Statement, shall be treated in
accordance with the other provisions of this Agreement.
(b) Land Reclamation. The liability of the Company for
current land reclamation on the Owned Real Property and the Leased
Real Property required by (i) applicable law or (ii) any Lease, but
not including any liability set forth in paragraph 3.9 above.
(c) Contracts. The liabilities of the Company (and of Martin
Marietta Materials Technologies, Inc. as specifically identified on
Schedule 3.10(c) hereto) for the performance of obligations arising
after the Closing under the contracts listed on Schedule 3.10(c)
hereto, except to the extent such obligations arise from a default by
the Company prior to Closing.
(d) Certain Environmental Liabilities. The liabilities,
costs and expenses of the Company with respect to the Environmental
Matters set forth on Schedule 3.10(d), but only to the extent set
forth thereon. All liabilities, costs and expenses of the Company with
respect to
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Environmental Matters arising out of, relating to or in connection
with the matters set forth on Schedule 3.10(d), to the extent not
expressly allocated to the Company thereon, shall be treated in
accordance with the other provisions of this Agreement.
(e) Other Liabilities. The liabilities of the Company for
the items set forth on Schedule 2.2(b) attached hereto, but only to
the extent set forth thereon.
(f) Income Taxes. All Income Taxes arising out of, relating
to or in connection with any period on or after the Closing Date,
other than Income Taxes for which Seller has assumed liability under
paragraph 3.9(c) of this Agreement.
ARTICLE 4.
OTHER AGREEMENTS
4.1. [INTENTIONALLY OMITTED].
4.2. Service Level Agreement. Seller agrees that on the Closing Date
it will enter into the Service Level Agreement with Buyer in the form attached
as Exhibit D.
4.3. Audited Financial Statements. As soon as reasonably practicable,
but not later than 45 calendar days after the Closing Date, Seller will provide
Buyer with Audited Financial Statements for such dates and periods on or prior
to the Closing Date as may be necessary for Buyer to comply with such
requirements under the Securities Act of 1933, as amended (the "1933 Act"), the
Securities Exchange Act of 1934, as amended (the
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"1934 Act"), and any state securities laws as Buyer may determine to be
necessary or appropriate, either in connection with the transaction contemplated
by this Agreement or otherwise. Buyer shall, and shall cause the Company to,
afford Seller and Seller's independent accountants reasonable access to the
Company's books and records and Seller shall use its best efforts to afford
Buyer and Buyer's independent accountants reasonable access to its independent
accountants' workpapers in connection with the preparation of the foregoing
Audited Financial Statements.
4.4. [INTENTIONALLY OMITTED].
4.5. [INTENTIONALLY OMITTED].
4.6. Employee Plans. Buyer and Seller agree as follows with respect to
the Company Employee Plans:
(a) CSR America, Inc. Retirement Income Plan. (i) The CSR America, Inc.
Retirement Income Plan (the "CSR RIP") is a defined benefit pension plan
sponsored by Hydro Conduit Corporation. To the extent the action required by
this paragraph requires action to be taken by Hydro Conduit Corporation or any
other Affiliate of Seller or any other person, Seller agrees to cause Hydro
Conduit Corporation or such Affiliate or other person to take such action. The
Company is an "employer" (as defined in the CSR RIP) that is a party to the CSR
RIP. Seller shall cause the Company to withdraw from the CSR RIP effective at
Closing pursuant to Section 14.2 thereof. Seller shall ensure that such
withdrawal shall be carried out at such time and in such manner that no employee
of the Company shall accrue a benefit after the Closing Date under the CSR RIP
or under any retirement plan of
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the Company or of Buyer except to the extent that the Company or Buyer expressly
provides for such accrual under its retirement plan. The sale of the Shares to
Buyer pursuant to this Agreement shall not cause the employment of any CSR RIP
participant who is an employee of the Company to be considered terminated (this
provision is intended to satisfy the requirement of Section 6.8 of the CSR RIP
that the "sales agreement or related documents expressly provide" that such
employment shall not be considered terminated).
(ii) Effective as of Closing, the assets and liabilities of the CSR RIP
with respect to the benefits accrued for the Company NHCE CSR RIP Participants
shall be transferred to the Martin Marietta Materials, Inc. Pension Plan for
Hourly Employees (the "Hourly Transferee Plan"), as provided below in this
subparagraph (ii). "Company NHCE CSR RIP Participants" means CSR RIP
participants who are employees of the Company immediately prior to Closing
(excepting any such employees who transfer to Seller or an Affiliate of Seller
at or about the Closing) or who were employees of the Company at the time their
employment last terminated from Seller and its Affiliates, and in either case
who are not highly compensated employees within the meaning of section 414(q) of
the Code, all as named on Schedule 4.6(a)(1) hereto. Effective as of Closing,
Seller shall cause assets of the CSR RIP relating to the accrued benefits of the
Company NHCE
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CSR RIP Participants determined as of Closing to be transferred to the Hourly
Transferee Plan. Such assets shall be the greater of (A) assets equal to the
benefit liabilities of Company NHCE CSR RIP Participants determined on the basis
of projected benefit obligations based on the assumptions set forth on Schedule
4.6(a)(2) and (B) a pro rata share of all of the assets of the CSR RIP
determined on the basis of the benefit liabilities of Company NHCE CSR RIP
Participants and all other CSR RIP participants determined on the basis of
projected benefit obligations based on the assumptions set forth on Schedule
4.6(a)(2); provided, that the assets transferred shall be no less than the
assets required to be transferred under Section 414(l) of the Code and Section
4044 of ERISA; and provided, further, that if assets of the CSR RIP are less
than the liabilities of the CSR RIP as determined under Section 414(1) of the
Code and Section 4044 of ERISA, then the assets to be transferred and retained
shall be determined as required by said sections. In the event that the assets
so transferred are less than the benefit liabilities of Company NHCE CSR RIP
Participants determined on the basis of projected benefit obligations based on
the assumptions set forth on Schedule 4.6(a)(2), the Purchase Price shall be
reduced as provided in subparagraph 2.2(c)(ii) above. The physical transfer of
such assets to the trustee of the Hourly Transferee Plan shall be made in cash.
Buyer and Seller understand and agree that such physical transfer of assets
shall be made no later than 120 days after the Closing and that the amount of
cash required to be transferred shall equal the amount of assets required to be
transferred as of Closing, less benefit payments made to Company NHCE CSR RIP
Participants
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subsequent to Closing, plus interest thereon at the rate of eight percent (8%)
per annum.
(iii) Buyer agrees that Company NHCE CSR RIP Participants shall receive
credit for service with the Company earned prior to Closing for eligibility,
vesting and benefit accrual purposes under the Hourly Transferee Plan. Seller
agrees to provide Buyer with records adequate to accurately determine such
service and to determine the accrued benefit of each Company NHCE CSR RIP
Participant transferred to the Hourly Transferee Plan. Seller also agrees to
provide Buyer, on an individual participant basis (by name and Social Security
number), the accrued benefits calculated for each participant for the purpose of
determining the amount of assets permitted or required to be transferred under
Section 414(1) of the Code and Section 4044 of ERISA under subparagraph
4.6(a)(ii) above.
(iv) Effective January 1, 1998, the assets and liabilities of the CSR
RIP with respect to the benefits accrued for the Company HCE CSR RIP
Participants (except to the extent subsequently distributed from the CSR RIP
pursuant to its benefit distribution provisions) shall be transferred to such
defined benefit pension plan maintained by Buyer as Buyer shall then designate
("Designated Transferee Plan"), as provided below in this subparagraph (iv).
"Company HCE CSR RIP Participants" means CSR RIP participants who are employees
of the Company immediately prior to Closing (excepting any such employees who
transfer to Seller or an Affiliate of Seller at or about the Closing) or who
were employees of the Company at the time their employment last
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terminated from Seller and its Affiliates, and in either case who are highly
compensated employees within the meaning of section 414(q) of the Code, as named
on Schedule 4.6(a)(3). Effective as of Closing Seller shall determine the amount
of assets of the CSR RIP relating to the accrued benefits of the Company HCE CSR
RIP Participants determined as of Closing. Such assets shall be the greater of
(A) assets equal to the benefit liabilities of Company HCE CSR RIP Participants
determined on the basis of projected benefit obligations based on the
assumptions set forth on Schedule 4.6(a)(2) and (B) a pro rata share of all of
the assets of the CSR RIP determined on the basis of the benefit liabilities of
Company HCE CSR RIP Participants and all other CSR RIP participants determined
on the basis of projected benefit obligations based on the assumptions set forth
on Schedule 4.6(a)(2). Effective as of January 1, 1998, the assets of the CSR
RIP relating to accrued benefits of the Company HCE CSR RIP Participants, plus
interest thereon from Closing at the rate of eight percent (8%) per annum, shall
be transferred to the Designated Transferee Plan; provided, that the assets
transferred shall be no less than the assets required to be transferred under
section 414(l) of the Code and section 4044 of ERISA; and provided, further,
that if assets of the CSR RIP are less than the liabilities of the CSR RIP as
determined under section 414(1) of the Code and section 4044 of ERISA, then the
assets to be transferred and retained shall be determined as required by said
sections. In the event that the assets so transferred are less than the benefit
liabilities of Company HCE CSR RIP Participants
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determined as of Closing based on the assumptions set forth on Schedule
4.6(a)(2), plus interest thereon at the rate of eight percent (8%) per annum,
the Purchase Price shall be reduced as provided in subparagraph 2.2(c)(iii)
above. Buyer and Seller understand and agree that such physical transfer of
assets shall be made no later than 120 days after January 1, 1998 and that the
amount of cash required to be transferred shall equal the amount of assets plus
interest required to be transferred as of January 1, 1998 as provided above in
this subparagraph (iv), less benefit payments made to Company HCE CSR RIP
Participants subsequent to Closing, plus interest thereon from January 1, 1998
at the rate of eight percent (8%) per annum.
(v) Buyer agrees that Company HCE CSR RIP Participants who are
employees of the Company (or an employer that includes Buyer, as determined
under Section 414(b), (c), (m) or (o) of the Code), on January 1, 1998 shall
receive credit for service with the Company earned prior to Closing for
eligibility, vesting and benefit accrual purposes under the Designated
Transferee Plan. Seller agrees to provide Buyer with records adequate to
accurately determine such service and to determine the accrued benefit of each
Company HCE CSR RIP Participant transferred to the Designated Transferee Plan.
Seller also agrees to provide Buyer, on an individual participant basis (by name
and Social Security number), the accrued benefits calculated for each
participant for the purpose of determining the amount of assets permitted or
required to be transferred under Section 414(1) of
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the Code and Section 4044 of ERISA under subparagraph 4.6(a)(iv) above.
(vi) With respect to the determinations made by Seller of the amount
of plan assets to be transferred as of Closing under subparagraph 4.6(a)(ii)
above and to be transferred as of January 1, 1998 under subparagraph 4.6(a)(iv)
above, Seller shall provide, or cause to be provided, to Buyer all of the
information and assumptions used to make such determinations as well as copies
of the calculations, worksheets, reports and the like relating to such
determinations, all for the purpose of enabling Buyer, or its designated agent,
to determine whether such determinations are correct. All such material with
respect to each such asset transfer shall be furnished to Buyer (or Buyer's
designated agent) no later than the date by which such plan asset transfer is
made or required to be made, whichever comes first. Within thirty (30) calendar
days of receiving such material, Buyer shall inform Seller in writing either
that the determination made by Seller is acceptable or that Buyer objects to
such determination. If Buyer does not so inform Seller, then such determination
shall be deemed to be correct (except to the extent that the pension Benefit
Guaranty Corporation, Internal Revenue Service or U.S. Department of Labor later
determines such determination to be incorrect). If Buyer so objects and the
parties do not resolve such objections on a mutually agreeable basis within
fifteen (15) calendar days after Seller's receipt of such objection, the
disagreement shall be resolved by an independent actuary mutually selected by
Buyer and Seller (such
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independent actuary's compensation shall be shared equally by Buyer and Seller).
Such independent actuary shall be selected by Buyer and Seller within fifteen
(15) calendar days. The decision of such independent actuary shall be rendered
within thirty (30) calendar days of the selection of such actuary and shall be
final and binding on the parties. Notwithstanding any such objection by Buyer,
Seller shall remain required to complete the asset transfers based on its
determinations when required under subparagraphs 4.6(a)(ii) and (iv) (including
any related Purchase Price reductions under subparagraphs 2.2(c)(ii) and (iii).
If additional amounts are required to be transferred as a result of mutual
agreement or a decision by the independent actuary, such amounts (including
amounts required to be paid as Purchase Price reductions) shall be transferred
within thirty (30) days thereafter with interest as provided in subparagraphs
4.6(a)(ii) and (iv) and subparagraphs 2.2(c)(ii) and (iii), as applicable.
(b) American Aggregates Corporation Non-Contributory Pension Plan and
American Aggregates Corporation Hourly Pension Plan. The American Aggregates
Corporation Non-Contributory Pension Plan and the American Aggregates
Corporation Hourly Pension Plan, a/k/a the American Aggregates Corporation
Bargaining Employees' Retirement Plan (together referred to as the "Hourly
Pension Plans") are defined benefit pension plans sponsored by the Company. The
Company shall not withdraw as sponsor or participating employer under such plans
immediately prior to Closing. Buyer and Seller agree that upon Closing the
Hourly Pension Plans shall become pension plans of Buyer's
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employer group and shall no longer be pension plans of Seller's employer group
(as determined under Section 414(b), (c), (m) or (o) of the Code). The
liabilities assumed with respect to such plans shall be based on the
participants listed (separately for each such plan) in Schedule 4.6(b) hereto;
provided, that in no event shall any liability be assumed by the Company in
connection with employees of or utilized by Hydro Conduit Corporation.
(c) CSR America, Inc. 401(k) Retirement Savings Plan and CSR America,
Inc. Profit-Sharing Retirement Plan. (i) The CSR America, Inc. 401(k) Retirement
Savings Plan (the "Hourly 401(k) Plan") and CSR America, Inc. Profit-Sharing
Retirement Plan ("Salaried 401(k) Plan") (together referred to as the "CSR
401(k) Plans") are defined contribution retirement plans sponsored by Seller.
The Company is an affiliated company that has adopted the CSR 401(k) Plans (as
provided under the terms of such plans). Seller shall cause the Company to
withdraw from the CSR 401(k) Plans immediately prior to Closing. Such withdrawal
must provide that benefits will not accrue under the CSR 401(k) Plans to the
employees of the Company after such withdrawal. In connection with such
withdrawal, Seller also agrees to amend the CSR 401(k) Plans prior to Closing to
provide for the payment of benefits under the circumstances permitted under
Section 401(k)(10)(A)(iii) of the Code to participants in the CSR 401(k) Plans
who are employees of the Company immediately prior to Closing so that within a
reasonable period of time following the Closing such employees will be entitled
to receive payment of benefits from the CSR 401(k) Plans on account of the
purchase of
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the Shares by Buyer from Seller. Seller agrees that it shall use its best
efforts to make, prior to Closing, all profit-sharing (accrued for plan year
1996), 401(k) and matching contributions for benefits accrued under the CSR
401(k) plans prior to Closing and shall, in all events, make such contributions
no later than the 30th day following Closing. Seller agrees that it shall pay to
Buyer by reduction of the Purchase Price as provided in subparagraph 2.2(c)(iv)
above the amount reasonably estimated by Seller to be five-twelfths (5/12) of
the profit-sharing contribution that would have been made under the Salaried
401(k) Plan for plan year 1997 with respect to individuals who were employed by
the Company immediately prior to the Closing Date. Buyer agrees to contribute
such amount for 1998 to a defined contribution plan or plans maintained by Buyer
and to allocate such amount as a nonelective contribution on a nondiscriminatory
basis for the plan year 1998 to the salaried employees of the Company
participating in such plan or plans who were also employees of the Company
immediately prior to the Closing Date.
(ii) Buyer agrees that it shall adopt or cause the Company to adopt a
401(k) plan as soon as reasonably practicable following Closing and that the
employees of the Company eligible (or who would be eligible upon completion of
the plan's service requirement) for participation in the Hourly 401(k) Plan
shall be entitled to credit for service with the Company prior to Closing for
the purpose of satisfying any service eligibility requirement and any service
vesting requirement under such 401(k) plan.
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Seller agrees to provide Buyer with records adequate to accurately determine
such service.
(iii) Buyer agrees that effective January 1, 1998, it shall cause the
Company to adopt a defined contribution retirement plan or plans for salaried
employees and that the employees of the Company at January 1, 1998 who were
eligible (or who would have been eligible upon completion of the plan's service
requirement) for participation in the Salaried 401(k) Plan shall be entitled to
credit for service with the Company prior to Closing for the purpose of
satisfying any service eligibility requirement and any service vesting
requirement under such defined contribution retirement plan or plans. Seller
agrees to provide Buyer with records adequate to accurately determine such
service.
(d) Multiemployer Retirement Plans. Buyer agrees that after Closing it
shall cause the Company to honor the provisions of the Company's collective
bargaining agreements governing contributions to multiemployer retirement plans.
If subsequent to Closing the Company partially withdraws from one or more of
such plans and such partial withdrawal is, at least in part, attributable to a
decline in the Company's contribution base units to the plan prior to Closing,
then Seller shall remain responsible for, and the Company shall not assume, the
portion of such withdrawal liability attributable to such pre-Closing decline in
the Company's contribution base units.
(e) Welfare Benefit Plans. (i) The Company maintains or participates
in the following welfare benefit plans and cafeteria plan (not including any
multiemployer welfare plan to which it is
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required to contribute pursuant to a collective bargaining agreement):
(A) American Aggregates Corporation Health and Welfare Plan, EIN
34-4175690, PN 506 ("Hourly Welfare Plan")
(B) CSR America, Inc. Group Insurance Plan, EIN 58-1416933, PN
501 ("Salaried Group Insurance Plan")
(C) CSR America, Inc. Flexible Benefits Plan ("Salaried Flex
Plan")
(ii) Buyer agrees that after Closing it shall cause the Company to
continue to maintain the Hourly Welfare Plan, subject to the Company's
continuing right to amend or terminate such plan at any time.
(iii) Buyer agrees that effective immediately following Closing it
shall cause the Company to establish a group insurance plan and a related
flexible benefits plan ("Mirror Plans") that are substantially the same as the
Salaried Group Insurance Plan and Salaried Flex Plan, subject to the Company's
continuing right to amend or terminate such plan at any time. The following
Company employees shall be covered by the Mirror Plans: employees or former
employees of the Company entitled to retiree medical benefits and retiree life
insurance (but excluding other former employees, including such employees and
their dependents electing or entitled to elect COBRA coverage) immediately prior
to Closing who were participants in the Salaried Group Insurance Plan and
Salaried Flex Plan (excepting any such employees who transfer to Seller or an
Affiliate of Seller at or about the Closing) ("CSR FLEX Participants," as listed
on Schedule
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4.6(e)(1) hereto) and employees added to the Company's operations following the
Closing as designated by the Company or by Buyer. The flexible benefits plan
established by the Company shall be treated as an assumption and continuation of
the portion of the Salaried Flexible Benefits Plan covering the CSR FLEX
Participants. Seller agrees to cooperate with Buyer and the Company in the
establishment of the Mirror Plans and to administer the Mirror Plans for the
Company for the remainder of the 1997 plan year pursuant to the Service Level
Agreement among Buyer, Seller and the Company attached hereto as Exhibit D (the
"Service Level Agreement").
(iv) The group insurance plan established by the Company immediately
following Closing (and any successor thereto) shall provide retiree medical and
life insurance benefits to the CSR FLEX Participants (including both retirees
currently receiving such benefits and active employees who may become entitled
to such benefits in the future) entitled to retiree medical and life insurance
benefits under the terms of the Salaried Group Insurance Plan immediately prior
to Closing, provided that the Company may subsequently amend or terminate such
retiree medical and life insurance benefits, but shall not in such case provide
the CSR FLEX Participants with lesser retiree medical and life insurance
benefits than are provided to other similarly situated employees of Buyer. Buyer
shall also cause the Company to honor any other retiree life insurance benefits
(for active or retired employees) under a plan to which the Company contributes
as of Closing, again subject to the Company's right to amend or
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terminate such benefits. The employees and former employees entitled to retiree
benefits under this paragraph 4.6(e) are set forth on Schedule 4.6(e)(2) hereto.
(f) Limitation. In no event shall benefit liabilities, obligations or
responsibilities be assumed under this paragraph 4.6 with respect to employees
of the Company who as of Closing are on long term disability. In no event shall
benefit liabilities, obligations or responsibilities be assumed under this
paragraph 4.6 with respect to employees of the Company who as of Closing are on
salary continuation, unless and until (and only with respect to benefits
thereafter) such employees again become active employees of the Company.
(g) Other. Seller agrees that from and after Closing the Company shall
have no obligation to contribute to, pay benefits under or otherwise maintain,
administer or participate in any of the following plans that the Company
contributes to, pays benefits under, or otherwise maintains, administers or
participates in or has participated in prior to Closing: CSR America, Inc.
Supplemental Executive Profit-Sharing 401(k) Plan, CSR Executive Option Plan,
CSR Universal Share/Option Plan, any other stock or stock option compensation
plan, any defined benefit supplemental executive or excess retirement plan and
any other retirement plan or welfare benefit plan other than the retirement
plans and welfare benefit plans the Company has agreed to maintain under
subparagraphs 4.6(a) through (e) above. Seller agrees to cause the Company to
take, prior to Closing, such
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action as may be necessary to withdraw from or cease participation in all such
plans effective no later than Closing.
(h) Cooperation. Seller agrees that after Closing it shall cooperate
with Buyer and the Company by providing such information that Buyer or the
Company may reasonably request that Seller has reasonably available to it with
respect to the Company Employee Plans, Controlled Group Employee Plans and
employees of Seller and members of Seller's Controlled Group for the purpose of
enabling Buyer and the Company to maintain and administer the Company Employee
Plans assumed under this Agreement.
4.7. Employees.
(a) Non-Solicitation. Except as provided in subparagraph 4.7(b) below,
for a period of five years after the Closing Date, neither Buyer nor Seller
shall, and Buyer shall cause the Company not to, initiate discussions to solicit
or recruit any person who currently is, or from time to time may be, engaged or
employed by Seller or Buyer, as the case may be (as an officer, director or
employee), to terminate his or her employment by Seller or Buyer, as the case
may be.
(b) Project Rocket. Buyer acknowledges that the employees of the
Company set forth on Schedule 4.7(b), who are currently engaged in activities
related to the "Project Rocket," have resigned from their positions with the
Company and have become employed by Seller.
4.8. Antitrust Litigation. Buyer will use its best efforts to cause
the Company to pursue the Antitrust Litigation on behalf of the Company. The
Company shall retain all proceeds
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paid to it in respect of the Antitrust Litigation, subject only to paragraph
10.1(e). Buyer agrees that prior to settling or terminating the Antitrust
Litigation (whether in part or in whole and whether with respect to one or more
parties), it will offer to transfer to Seller all of the Company's rights to
pursue and receive all proceeds from the Antitrust Litigation (but only to the
extent proposed to be settled) for the net settlement amount that would be
received by Buyer.
4.9. Harding Street. (a) Buyer and Seller agree that, at Closing,
$25,000,000 (the "Harding Street Purchase Price") shall be withheld from the
Closing Date Shares Purchase Price and retained by Buyer in respect of the
Company's operations at Harding Street ("Harding Street").
(b) Buyer and the Company agree to use their reasonable efforts to
sell Harding Street as promptly as practicable following the Closing.
(c) Buyer and Seller agree that Buyer shall pay to Seller, at the
earlier to occur of (i) the date Harding Street is sold or (ii) the ninety-first
(91st) day following the date hereof, the Harding Street Purchase Price together
with interest thereon from the date hereof to the date of such payment
calculated at the rate of 8% per annum.
(d) Seller agrees that on the Closing Date it shall enter into the
Management Services Agreement with Buyer in the form attached as Exhibit E
hereto (the "Management Services Agreement"). Buyer and Seller agree that Seller
will devote a full-time employee to manage the operations of Harding Street
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after the Closing until the date Harding Street is sold. Buyer agrees to provide
administrative and operations service support to Harding Street during this
period. In respect of Seller's duties under this paragraph and as set forth in
the Management Services Agreement, Buyer agrees to pay Seller the management fee
set forth in the Management Services Agreement.
4.10. Landfills. Buyer shall not intentionally excavate, mine, dig,
move or otherwise disturb the Seller-Assumed Landfills located on the Leased
Real Property or Owned Real Property, including to conduct environmental
testing, except (i) in the ordinary course of business in Buyer's regular
operations on such Leased Real Property or Owned Real Property or (ii) if Buyer
has a reasonable basis for conducting environmental tests, or such activities as
are otherwise required by Environmental Law. Buyer shall pay all costs and
expenses of the environmental tests which Buyer determines to conduct pursuant
to this paragraph 4.10. Without limiting the generality of the foregoing, a good
faith determination by Buyer that any such testing would be reasonably likely to
result in mitigation or remediation of an Environmental Matter that could
deteriorate or worsen over time shall be deemed to be a reasonable basis for
conducting any such tests. Nothing in this paragraph 4.10 shall be deemed to
create any additional obligation on the part of Buyer under this Agreement in
respect of Environmental Matters.
4.11. Recycling. (a) If requested by Seller, Buyer shall recycle
merchantable, recyclable construction material located at any Seller-Assumed
Construction Landfill, unless Buyer shall
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determine, in its good faith honest judgment, that (i) the material is not
merchantable, recyclable construction material or (ii) any materials at such
Seller-Assumed Construction Landfill are either (A) polluted or contaminated
with respect to Environmental Matters in any respect or (B) cannot be recycled
profitably.
(b) Buyer shall recycle merchantable, recyclable construction material
located at any Basket Construction Landfill, unless Buyer shall determine, in
its good faith honest judgment, that (i) the material is not merchantable,
recyclable construction material or (ii) any materials at such Basket
Construction Landfill are polluted or contaminated with respect to Environmental
Matters in any respect.
4.12. Tax Allocation. Except for any allocations relating to Project
Rocket for periods after the tax year ended March 31, 1996, Seller agrees that
all allocations of expenses by Seller to the Company for Income Tax purposes
(including on returns for the year ended March 31, 1997 and the period ended the
Closing Date) shall be determined in the same manner as allocations made for the
Tax year ended March 31, 1996 and that no such allocations shall be reversed in
whole or in part for any Tax year ended on or prior to, or including, the
Closing Date.
4.13. Storage at Marble Cliff. Buyer agrees to allow Hydro Conduit
Corporation to store concrete pipe, for the sewer jobs in Dublin and Hilliard,
at the Marble Cliff Limestone location, provided that the storage of such pipe
shall not impact the operation and expenses of the Marble Cliff plant and such
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pipe shall be removed as soon as is practicable after the jobs referenced above
are completed.
4.14. Maintenance of Minimum Net Worth. (a) In order to ensure that
Seller will have the financial ability to perform its obligations under this
Agreement, Seller agrees it will, at all times from the date hereof through the
tenth anniversary of the Closing Date, maintain a Net Worth of at least
$235,000,000. As used herein, the term "Net Worth" means total assets less total
liabilities, determined in accordance with generally accepted Australian
accounting principles, consistently applied. For purposes of determining Net
Worth, there shall be excluded from total assets any note of, or receivable
owing from, any affiliate of Seller (other than a wholly owned subsidiary of
Seller).
(b) Prior to May 29, 1997, Seller shall not make or effect any
dividend, distribution or other disposition of assets which results in Seller
failing to have a Net Worth of at least $235,000,000.
(c) Prior to May 29, 2007, (i) Seller will deliver to Buyer,
no later than 90 days after the end of each fiscal year of Seller, audited
financial statements of Seller (including a balance sheet, income statement and
statement of cash flows) for the fiscal year then ended, prepared in accordance
with generally accepted Australian accounting principles, consistently applied
(except as noted therein), and (ii) Seller will deliver written notice to Buyer
within 5 Business Days after the occurrence of any event which results in Seller
failing to have a Net Worth of at least $235,000,000. Seller will provide Buyer
with a copy of
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Form 20-F (or similar form) of CSR Ltd. promptly (and in any event within 5
Business Days) after the filing thereof with the United States Securities
Commission.
(d) If Seller's Net Worth shall fall below $235,000,000 (other
than as a result of a failure to comply with paragraph 4.14(b) above), Seller
shall use its best commercial efforts to restore its Net Worth to at least
$235,000,000.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that as of the date hereof:
5.1. The Company Capital Stock.
(a) The authorized capital stock of the Company consists only of 1,000
shares of common stock, $.01 par value per share, of which 100 shares are
outstanding; all of such outstanding shares are owned directly by Seller. All of
the Shares have been duly authorized and validly issued and are fully paid and
non-assessable. The Shares are not subject to any liens or restrictions on
transfer, other than restrictions imposed by applicable securities laws. There
is no authorized or outstanding option, subscription, warrant, call, right,
commitment or other agreement obligating the Company (or Seller with respect to
the capital stock of the Company) to issue or transfer any shares of its capital
stock or any securities convertible into or exercisable for any shares of its
capital stock.
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(b) Immediately prior to the Closing, Seller will own the Shares free
and clear of all liens and at the Closing will transfer to Buyer its entire
right, title and interest in and to the Shares.
(c) The Company is not party to any partnership, joint venture or other
similar agreement and does not hold equity securities in any other Person other
than (i) Michigan and (ii) D&H.
(d) The authorized capital stock of D&H consists only of 1,000 shares
of common stock, $.01 par value per share, of which 100 shares are outstanding;
all of such outstanding shares (the "D&H Shares") are owned directly by the
Company. All of the D&H Shares have been duly authorized and validly issued and
are fully paid and non-assessable. The D&H Shares are not subject to any liens
or restrictions on transfer, other than restrictions imposed by applicable
securities laws. There is no authorized or outstanding option, subscription,
warrant, call, right, commitment or other agreement obligating D&H (or the
Company with respect to the capital stock of D&H) to issue or transfer any
shares of its capital stock or any securities convertible into or exercisable
for any shares of its capital stock.
(e) D&H is not party to any partnership, joint venture or other similar
agreement and does not hold equity securities in any other Person.
5.2. Organization and Standing.
(a) Seller. Seller is a corporation duly organized, validly
existing, and in good standing under the laws of
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Georgia and has all corporate power and authority necessary to own the
Shares and to enter into this Agreement and to perform its obligations
hereunder.
(b) The Company. The Company is a corporation duly organized,
validly existing and in good standing under the laws of Delaware and
has all corporate power and authority necessary to own, operate and
conduct its business as it is presently conducted. The Company is duly
licensed or qualified to do business and is in good standing as a
foreign corporation in all states in which it conducts business.
(c) D&H. D&H is a corporation duly organized, validly existing
and in good standing under the laws of Delaware and has all corporate
power and authority necessary to own, operate and conduct its business
as it is presently conducted. D&H is duly licensed or qualified to do
business and is in good standing as a foreign corporation in all
states in which it conducts business.
5.3. No Violation. The execution and delivery by Seller of this
Agreement does not, and the consummation by Seller of the transactions
contemplated hereby will not (i) violate or conflict with any provision of the
Articles of Incorporation or Bylaws of Seller, the Company or D&H, (ii) except
as set forth on Schedule 5.3, violate or conflict with, or result (with the
giving of notice or lapse of time or both) in a violation of or constitute a
default (or give rise to any right of termination, cancellation or acceleration)
under any of the terms, conditions or provisions
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of any note, license, agreement or other instrument or obligation to which
either Seller, the Company or D&H is a party or by which any of its assets may
be bound, except for such violations or defaults (or rights of termination,
cancellation or acceleration) as to which requisite waivers or consents have
been obtained, or (iii) violate any order, writ, injunction, decree, statute,
rule or regulation applicable to Seller, the Company or D&H, or any of their
respective assets.
5.4. Enforceability. This Agreement and the agreements and instruments
contemplated by or delivered in connection with this Agreement to which Seller
or the Company is a party or a signatory have been duly authorized, executed and
delivered by Seller or the Company, as the case may be, and constitute the
legal, valid and binding obligation of Seller or the Company, as the case may
be, enforceable in accordance with their terms. All necessary corporate
proceedings of Seller and the Company have been taken to authorize this
Agreement and the agreements contemplated by this Agreement and all transactions
contemplated hereby and thereby.
5.5. Insurance; Bonds. Except as set forth on Schedule 5.5(a), during
the last ten (10) years (but for the period prior to the acquisition of the
Company by Seller, to the best of Seller's knowledge) there have been no
insurance policies insuring any Acquired Asset or other portion of the Acquired
Business (including policies (if any) insuring or indemnifying Seller, the
Company and their employees in respect of errors or omissions or in respect of
professional services rendered in
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connection with the operation of the Acquired Business) or bonds required by
applicable law to be maintained with respect to the operation of the Acquired
Business. Those policies and bonds set forth on Schedule 5.5(b) (i), in the case
of the policies, have been in full force and effect through the Closing Date and
(ii), in the case of the bonds, are in full force in effect, and neither Seller
nor the Company has received any notice of cancellation with respect thereto.
During the past five (5) years, no application by Seller or the Company for
insurance or any bond with respect to the Acquired Assets or the Acquired
Business has been denied for any reason. Except as set forth on Schedule 5.5(b),
each policy set forth on Schedule 5.5(b) bears an indorsement sufficient to
extend coverage to Buyer as an additional insured for liability policies (or
loss payee, for property policies) under such policy.
5.6. Liabilities, Liens and Encumbrances. Except as set forth on
Schedule 5.6 or Schedule 5.9(d)(ii), (iii) or (iv) attached hereto and Permitted
Exceptions, at the time of Closing, none of the Acquired Assets will be subject
to any liabilities, liens or encumbrances of any nature, whether accrued,
absolute, contingent, or otherwise, including, without limitation, tax
liabilities or special assessments, or arising out of transactions entered into,
or any state of facts existing prior to or on the Closing Date.
5.7. Absence of Certain Changes. Except as set forth on Schedule 5.7
attached hereto, since December 31, 1996, there has not been (i) any material
labor trouble, union jurisdictional
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disputes, work stoppages, strikes or, to the knowledge of Seller, threats
thereof, relating to the Company, its business and operations, or any portion
thereof (including any operating location); (ii) any change in the business and
operations of the Company or any portion thereof (including any operating
location) other than changes in the ordinary course of business, none of which
has been materially adverse; (iii) any sale or granting to any party or parties
of any license, franchise, option or other right of any nature whatsoever to
sell, distribute or otherwise deal in or with products or services of the
Acquired Business; or (iv) any other event or condition of any character which
materially and adversely affects the financial condition, results of operations,
business or prospects of Seller with respect to the Company, its business and
operations, or any portion thereof (including any operating location).
5.8. Financial Matters.
(a) Financial Statements. The Company has delivered to Buyer
on behalf of Seller true and complete copies of profit and loss
statements, statements of cash flow and balance sheets for the Company
for each of the two fiscal years ended March 31, 1996 and March 31,
1997 (unaudited, with audited financial statements to be delivered as
soon as reasonably practicable, as contemplated by paragraph 4.3), for
the nine-month period ending December 31, 1996 (unaudited) and will
deliver within 45 calendar days after the Closing Date unaudited
profit and loss statements, statements of cash flow and unaudited
balance sheets for
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the Company as of the Closing Date (the "Financial Statements"). The
Financial Statements have been and, in the case of the Financial
Statements dated as of the Closing Date, will be prepared from the
books and records of the Company, reflect all Financial Statement
Adjustments, and in the aggregate fairly present the financial
position and results of operations of the Company as of the dates
thereof and for the periods presented thereby.
(b) Sales of Products. Set forth on Schedule 5.8(b) to this
Agreement are, by product type and operating location of the Company,
the number of tons of each such product sold during the fiscal years
ended March 31, 1995, March 31, 1996 and March 31, 1997 and the amount
of gross and net sales resulting from such sales in each of such
periods.
5.9. Properties.
(a) Owned Properties. Schedule 5.9(a) (i) sets forth all
real property in which the Company holds legal or equitable title and
which is used or contemplated for use by it in the conduct of the
Acquired Business, (ii) lists substantially all items of depreciable
plant and equipment owned by the Company and used or contemplated for
use in the conduct of the Acquired Business, (iii) lists substantially
all motor vehicles and trailers owned by the Company and used or
contemplated for use in the conduct of the Acquired Business, and (iv)
contains a summarized
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description of all other tangible property that constitutes part of
the assets owned by the Company and used or contemplated for use by
Seller in the conduct of the Acquired Business.
(b) Leased Properties. Schedule 5.9(b) (i) sets forth a
complete and accurate list of all Leased Real Property and (ii) sets
forth a complete and accurate description of all personal property
leased or subleased by the Company with annual lease payments of
greater than $10,000 that is used or contemplated for use in the
conduct of the Acquired Business. Seller represents and warrants that
each of the Leases is in full force and effect and has not been
modified or amended except as described on Schedule 5.9(b) and that no
act or event has occurred which, with notice or lapse of time or both,
would constitute a default on the part of the Company and, to Seller's
knowledge, on the part of any other person, under any of the Leases
and that the consummation of the transactions described in this
Agreement will not create or cause a default under any of the Leases.
(c) Contract and Option Properties. Set forth on Schedule
5.9(c) is a list of all outstanding contracts and options pursuant to
which the Company has a right to purchase or lease or otherwise use or
occupy (other than renewal or extension rights in Leases) any real
property that may be used or useful in the Acquired Business and is
located within the current and planned operating area of
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the Acquired Business. Seller has no rights to acquire or lease or
otherwise use or occupy pursuant to any outstanding contract or option
to purchase or lease any real property that may be used or useful in
the Acquired Business and is located within the "Territory" (as such
term is defined in that certain Non-Compete Agreement, dated as of the
date hereof, between Buyer, the Company and Seller).
(d) Title.
(i) The Company has, or at the time of Closing
will have, good and marketable fee simple title to the Owned
Real Property and mineral reserves located thereon, subject
to no security interest, deed to secure debt, mortgage,
pledge, lien, encumbrance or charge, except for Permitted
Exceptions. Each Owned Real Property on which the Company
currently conducts operations has rights of access to and
from publicly dedicated rights of way (either directly or
via valid and subsisting easements or private rights of way)
which are sufficient to permit the Company to conduct its
operations on such Owned Real Property in the same manner in
which such operations are currently conducted and with
respect to each Owned Real Property on which the Company
does not currently conduct operations, has access to and
from publicly dedicated rights of way (either directly or
via valid
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and subsisting easements or private rights of way) which are
sufficient to permit the Company to use such Owned Real
Property in the manner contemplated by the Company in
connection with the Acquired Business.
(ii) Except as disclosed on Schedule 5.9(d)(ii),
the Company has, or at the time of Closing will have, the
sole and unencumbered right to possess and use the Leased
Real Property, subject to the terms and provisions of the
Leases with respect to the Leased Real Property. Each Leased
Real Property on which the Company currently conducts
operations has rights of access to and from publicly
dedicated rights of way (either directly or via valid and
subsisting easements or private rights of way) which are
sufficient to permit the Company to conduct its operations
on such Leased Real Property in the same manner in which
such operations are currently conducted and with respect to
each Leased Real Property on which the Company does not
currently conduct operations, has access to and from
publicly dedicated rights of way (either directly or via
valid and subsisting easements or private rights of way)
which are sufficient to permit the Company to use such
Leased Real Property in the manner contemplated by the
Company in connection with the Acquired Business.
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(iii) Except as set forth on Schedule 5.9(d)(iii),
the Company has, or at the time of Closing will have, good
and marketable title to all personal property included in
the Acquired Assets, subject to no security interest,
mortgage, pledge, lien, encumbrance or charge, except the
leases or other agreements described on Schedule 5.9(b).
(iv) Except as disclosed on Schedule 5.9(d)(iv) or
except for those encroachments that do not impair the value
or continued or contemplated use of the Owned Real Property
or the Leased Real Property, as the case may be, to which
they relate, there are no encroachments upon any of the
Owned Real Property or the Leased Real Property, and none of
the activities or improvements of the Company on the Owned
Real Property or the Leased Real Property encroach upon the
property of others or easements or rights of way in favor of
others.
(e) Condition. The Company has maintained the tangible
properties (real, personal or mixed) included within the Acquired
Assets substantially in accordance with industry standards. Since
December 31, 1996, there has been no material change in the condition
of such Acquired Assets.
(f) Reserves. Schedule 5.9(f) sets forth Seller's estimates
of quantities of substantiated, proven aggregates reserves at each
operating location of the Company (the
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"Seller Reserves"). Except as set forth on Schedule 5.9(f), there are
no deficiencies in the quality, adequacy, merchantability or
mineability of, or limitations on commercial access to, the Seller
Reserves that could have a material adverse effect on the Company, its
business and operations. Seller has made available to Buyer all
written information in its possession regarding the Seller Reserves.
5.10. Contracts.
(a) Customer Orders. Schedule 5.10(a) sets forth those
contracts and quotations for the sale of aggregates made by the
Company which have not been performed by the Company as of the date
hereof and which individually provide for a purchase price of $10,000
or more or together provide for a purchase price of $50,000 or more
(the "Customer Orders").
(b) Other Contracts. Schedule 5.10(b)(1) lists all Contracts
that either (A) involve payment by the Company of more than $100,000
in any single case or (B) have a term of 12 months or more and involve
payment by the Company of more than $20,000 in any single case, other
than Leases listed on Schedule 5.9(b) and Customer Orders listed on
Schedule 5.10(a). The Company has no contracts, understandings,
commitments or agreements, whether oral or written, pertaining to the
Acquired Business other than (i) the Leases listed on the attached
Schedule 5.9(b), (ii) those listed on the attached Schedule 5.10(b)(1)
or, if not
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required to be so listed, made by the Company in the ordinary course
of business, and (iii) contracts and quotations for the sale of
aggregates listed on Schedule 5.10(a) or, if not required to be so
listed, made by the Company in the ordinary course of business. Seller
has delivered to Buyer true and accurate copies (or, as to oral
Contracts, accurate written summaries) of all Contracts, together with
all amendments, modifications and supplements thereof and waivers and
consents thereunder. Except as set forth on Schedule 5.10(b)(2),
neither the Company nor, to the knowledge of Seller or the Company,
any other party, is in default in connection with any Contract; no act
or event has occurred which, with notice or lapse of time or both,
would constitute a default under any Contract with respect to the
Company or, to the knowledge of Seller or the Company, any other
party; there is no basis for any claim or default under any Contract
with respect to the Company or, to the knowledge of Seller or the
Company, any other party; there is no outstanding notice of
cancellation or termination in connection with any Contract; and each
Contract is the valid and binding agreement of the Company and, to the
knowledge of Seller or the Company of each other party thereto, which
is in full force and effect in accordance with its terms and will not
be affected by, or, except as described on Schedule 5.3, require the
consent of any other party to, the transactions contemplated by this
Agreement.
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5.11. No Litigation. Except as described on Schedule 5.11 or Schedule
5.20(e), there is no litigation, action, claim, proceeding or governmental
investigation pending or, to the knowledge of Seller or the Company, threatened
against Seller or the Company (i) relating to the Company, its business and
operations, employment practices, Company Employee Plans or any portion thereof
(including any operating location) or (ii) which may affect Seller's or the
Company's ability to perform its obligations under this Agreement or under any
agreement or instrument contemplated by this Agreement to which Seller or the
Company is a party, and to the knowledge of Seller or the Company there is no
basis for any such action.
5.12. Operations Conducted Lawfully. Except as set forth on Schedule
5.12 and except for minor, isolated infractions, for the three (3) years
preceding the Closing Date, the Company has conducted its operations in
accordance with all applicable federal, state and local laws, statutes, rules,
administrative regulations and ordinances, and neither Seller nor the Company
has received any written notice or, to the best of their knowledge, oral notice
to the contrary. Any matter disclosed on Schedule 5.12 has been resolved to the
satisfaction of the Governmental Authority having jurisdiction of the matter, or
if not, is so noted on Schedule 5.12.
5.13. Environmental Protection.
(a) Definitions. For purposes of this Agreement the term
"Environmental Laws" shall mean all federal, state and local laws
relating to pollution or protection of the
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environment and any regulation, code, plan, order, decree, judgment or
injunction related thereto, including without limitation:
(i) The Solid Waste Disposal Act, 42 U.S.C. Sec.
6901 ("SWDA").
(ii) The Resource Conservation and Recovery Act,
42 U.S.C. Sec. 6991 ("RCRA").
(iii) The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 26 U.S.C. Sec.
4611; 42 U.S.C. Sec. 9601 ("Superfund").
(iv) The Superfund Amendment and Reauthorization
Act of 1986.
(v) The Clean Air Act, 42 U.S.C. Sec. 7402.
(vi) The Clean Water Act, 33 U.S.C. Sec. 1251.
(vii) The Safe Drinking Water Act, 42 U.S.C.
Sec. 300f.
(viii) The Toxic Substances Control Act, 15 U.S.C.
Sec. 2601.
(ix) Applicable Ohio and Indiana mining laws.
(x) Any other similar federal, state or local
Environmental Laws.
(b) Disclosures of Environmental Permits, Etc. Schedule 5.13
attached hereto contains a description of the following which is true
and complete:
(i) all current environmental (including mining)
licenses, permits (including permit numbers and the
applicable issuing agency), regulatory plans and
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compliance schedules of Seller or the Company pertaining to
the Acquired Business or the Acquired Assets, together with
the expiration dates thereof, including;
(ii) all waste dumps and disposal, treatment and
storage sites located on the Owned Real Property, Leased
Real Property or any other property owned or leased at any
time by the Company, a predecessor or any Affiliate of
either; and
(iii) all sites for the disposal, treatment or
storage of "Hazardous Materials" (as hereinafter defined)
used by the Company in connection with the Acquired Assets
or the Acquired Business not located on the Owned Real
Property or the Leased Real Property and the names of the
entities that have been engaged in the handling,
transportation and disposal of Hazardous Materials for the
Company in connection with the Acquired Business. "Hazardous
Materials" shall mean any hazardous, toxic or dangerous
waste, substance or materials, including petroleum products
and fractions thereof, regulated or controlled pursuant to
any Environmental Law.
Seller has delivered to Buyer a true and correct copy of such
licenses, permits, regulatory plans, and compliance schedules.
(c) Special Environmental Representations and Warranties.
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(i) Except as described on Schedule 5.13, with
respect to the Acquired Assets, the Company has obtained all
permits, kept all records and made all filings required by
applicable Environmental Laws with respect to emissions,
past or present, into the environment (including solids,
liquids and gases) and the proper disposal of such materials
(including solid waste materials) required for the
operations of the Company at past or present operating
levels.
(ii) Except as described on Schedule 5.13, none of
the Acquired Assets or any other property owned or leased at
any time by the Company, a predecessor or any Affiliate of
either has been contaminated with any hazardous wastes,
hazardous substances, or other hazardous or toxic materials
as defined in the Environmental Laws so as to constitute a
violation of any of the Environmental Laws or so to trigger
any corrective or remedial action required by any
Environmental Law. Except as described on Schedule 5.13,
there are no transformers, capacitors or other equipment
included in or located on the Acquired Assets or any other
property owned or leased at any time by the Company, a
predecessor or any Affiliate of either which contain
polychlorinated biphenyls ("PCBs"). Except as described on
Schedule 5.13, there are no wetlands as defined in 33 C.F.R.
Sec. 328.3 located on the Owned Real Property, any Leased
Real Property or any
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other property owned or leased at any time by the Company, a
predecessor or any Affiliate of either. Except as described
on Schedule 5.13, there are no underground storage tanks
located on or under the Owned Real Property, any Leased Real
Property or any other property owned or leased at any time
by the Company, a predecessor or any Affiliate of either.
(iii) Except as described on Schedule 5.13, the
Company is in compliance with all Environmental Laws and all
permits, licenses and authorizations obtained pursuant
thereto. To the knowledge of Seller, there are no past or
present events, conditions, circumstances or activities,
which may interfere with or prevent continued compliance
with the Environmental Laws, or which may give rise to any
common law or legal liability, or otherwise form the basis
of any claim or action, proceeding, hearing, study, or
investigation, based on or related to the manufacture,
processing, use, storage, disposal, or handling, or the
release or threatened release into the environment, of any
pollutant, contaminant, chemical, or industrial, toxic or
hazardous substances or waste (as defined in the
Environmental Laws) with regard to the Acquired Assets or
any other property owned or leased at any time by the
Company, a predecessor or any Affiliate of either. There is
no pending or, to the knowledge of Seller, threatened civil
or criminal litigation, notice of
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violation or administrative proceeding relating in any way
to the Environmental Laws involving the Company, and to the
knowledge of Seller and the Company there is no basis for
any such litigation, notice or proceeding. There is no state
of facts or condition with regard to the Acquired Assets or
any other property owned or operated at any time by the
Company or any Affiliate of the Company that could result in
a material adverse effect on the Company, its business and
operations, or any portion thereof (including any operating
location).
5.14. Intellectual Properties. Except for the Intellectual Property
transferred to Buyer in accordance with paragraph 3.3 of this Agreement, there
is no Intellectual Property owned, licensed or used by the Company in the
conduct of the Acquired Business. No claims have been asserted during the past
five years by any person against the use by the Company, or challenging or
questioning the validity or effectiveness, of any of the Intellectual
Properties, or any agreement relating thereto, to which the Company is a party;
and to the knowledge of Seller and the Company, there is no valid basis for any
such claim.
5.15. Zoning. Except as set forth on Schedule 5.15 to this Agreement:
(i) the Owned Real Property and the Leased Real Property is in compliance with
all applicable building, zoning, land use or other similar statutes, laws,
ordinances, regulations, permits or other requirements in respect of the Owned
Real Property and the Leased Real Property nor has the
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Company received any notice alleging such a violation; (ii) there are no
nonconforming uses with respect to the Owned Real Property or the Leased Real
Property and, to Seller's knowledge, there are no zoning or any other use
restrictions (whether written or oral) or special permits not set forth in the
local zoning laws with respect to the Owned Real Property or the Leased Real
Property; (iii) any operations on or uses of the Owned Real Property and the
Leased Real Property that constitute nonconforming uses have been conducted with
sufficient continuity so as to preserve the right to continue the existing
operations and uses; (iv) all stone reserves located on the Owned Real Property
and the Leased Real Property are within zoning classifications that will permit
the quarrying and processing thereof; and (v) neither Seller nor the Company has
received any notice of (A) any pending or contemplated condemnation, eminent
domain or rezoning proceeding affecting the Owned Real Property or the Leased
Real Property or (B) any pending or contemplated special tax or assessment
against any of the Owned Real Property or Leased Real Property. Schedule 5.15
sets forth: (i) the zoning classifications applicable to the Owned Real Property
and the Leased Real Property; and (ii) describes all written and, to its
knowledge, all oral, variances, use restrictions or special permits applicable
to the Owned Real Property and the Leased Real Property. Seller has delivered to
Buyer all agreements, documents, permits or other writings, and has, to its
knowledge, described any oral arrangement, pertaining to any such variance, use
restriction or other special permit which it has in its possession or is readily
available to it.
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5.16. Taxes. All Tax Returns filed with respect to the Company are
correct and complete in all material respects. The Company has (i) properly
completed and filed all Tax Returns required to be filed by it, and no filing
extensions for any such returns are in effect; and (ii) paid and satisfied on or
before its respective due dates all Taxes (whether or not requiring the filing
of Tax Returns). All Taxes which Seller or the Company is or was required by law
to withhold or collect with respect to the Acquired Business, including sales,
unemployment and payroll taxes, have been duly withheld and collected and paid
over to the proper Governmental Authority or held by Seller or the Company in
separate bank accounts for such payment. Except as set forth on Schedule 5.16,
there have been no extensions of the statute of limitations on assessments of
any Taxes. There are no audits or examinations in progress by any Governmental
Authority. There have been no notices received from any Governmental Authority
of additional Taxes owed, adjustments being considered or audits to be
commenced. There are no agreements or understandings between the Company and any
Governmental Authority, whether oral or written, with respect to the payment of
any Taxes or any matter required or permitted to be included or excluded from
any Tax Return. All tax-sharing agreements involving the Company have been
terminated and will be of no future effect following the Closing. Except as set
forth in Schedule 5.16 as at March 31, 1996, the Company has no net operating
losses, capital loss carryovers or credit carryovers. All Tax liabilities have
been
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adequately reserved and reflected on the books and records of the Company
whether or not such Taxes are due or accruable.
5.17. Citations and Litigation. Attached hereto as Schedule 5.17 is a
true and complete list of environmental, MSHA, OSHA and other health and safety
citations received by Seller or the Company in the last three (3) years relating
to the Acquired Business or the Acquired Assets, and a list of any litigation
(whether or not of a type related to those matters set forth on Schedule 5.17)
currently pending or commenced by or pending against Seller or the Company in
the last three (3) years relating to the Acquired Business or the Acquired
Assets.
5.18. No Consents. Except as described on Schedule 5.3 and Schedule
5.18 attached hereto, no consent, approval, order or authorization of, or
registration, declaration or filing with any Governmental Authority or other
person on the part of Seller is required in connection with the execution or
delivery of, or the performance of its obligations under this Agreement or the
consummation of any transaction contemplated hereby.
5.19. Labor Relations. Except as set forth on Schedule 5.19, (i) the
Company is in compliance in all material respects with all federal and state
laws respecting employment and employment practices, terms and conditions of
employment and wages and hours, and has not engaged in any unfair labor or
unfair employment practice, (ii) there is no unlawful employment practice
discrimination charge relating to the Acquired Business pending before the Equal
Employment Opportunity Commission ("EEOC") or any EEOC recognized state
"referral agency," (iii)
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there is no unfair labor practice charge or complaint against Seller or the
Company pending before the National Labor Relations Board ("NLRB") relating to
the Acquired Business, (iv) there is no labor strike, dispute, slowdown or
stoppage actually pending or, to the knowledge of Seller or the Company,
threatened against or involving or affecting the Acquired Business, (v) no labor
organization or group of employees of the Acquired Business has made a pending
demand for recognition or certification, and there are no representation or
certification proceedings presently pending or, to the knowledge of Seller or
the Company, threatened to be brought or filed with the NLRB or any other labor
relations tribunal or authority, (vi) no grievance or arbitration proceeding
relating to the Acquired Business is pending and no written claim therefor
exists and (vii) there is no collective bargaining agreement which is binding on
the Company.
5.20. Employee Plans.
(a) Schedule of Plans. A list of every Company Employee Plan
(limited to Company Employee Plans currently maintained) is set forth
on Schedule 5.20(a)(1). Except as set forth on Schedule 5.20(a)(2),
the Company is not a party to any Multiemployer Plan and no action has
been taken nor has any event occurred which has resulted or is likely
to result in any withdrawal liability to any Multiemployer Plan which
withdrawal liability is or will become a liability of the Company. The
Company will not have any liabilities (other than incurred in the
ordinary course of business) for unpaid compensation or fringe
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benefits (including without limitation accrued sick leave or vacation
pay) as of the Closing Date that are not disclosed on Schedule
5.20(a)(3). Except as required by Part 6, Subtitle B, Title I of ERISA
and except as set forth on Schedule 5.20(a)(4), no Company Employee
Plan that is a welfare plan (as such term is defined in ERISA)
provides for health or death benefit coverage to any individual for
events occurring or expenses incurred after termination of employment
and no promise has been made nor any liability incurred by the Company
for post-retirement or post-termination-of-employment health or death
benefits or other benefits. The Company does not presently have any
liability related to and will not in the future have any liability
related to any nonqualified deferred compensation or supplemental
retirement plan, program or arrangement or the like sponsored or
maintained at any time prior to Closing.
(b) Qualification. Except as set forth on Schedule 5.20(b),
each Company Employee Plan that is an "employee pension benefit plan"
within the meaning of section 3(2) of ERISA that is intended to
satisfy the requirements of sections 401(a) and 501 of the Code: (i)
has received a favorable determination letter from the Internal
Revenue Service to the effect that it is qualified under sections
401(a) and 501 of the Code, both as to the original plan and all
restatements or material amendments; (ii) has not, since the date of
such determination letter, been subject
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to any assertion by any Governmental Authority that it is not so
qualified; and (iii) has been operated so that it has always been so
qualified. The Company has furnished to Buyer with respect to each
Company Employee Plan (limited to Company Employee Plans currently
maintained) a copy of the latest actuarial valuation (if any) and
financial statements, the three most recent annual reports or returns
on Form 5500, Form 990 and Form 1041, each plan, program and policy
document (including amendments) or the like, the collective bargaining
agreements, the trust agreements and/or insurance contracts or
documents setting forth any other funding arrangement, the
administration contracts, the most recent "summary plan description"
and any subsequent "summaries of material modifications" (both as
required by ERISA), any communications upon which employees or former
employees of the Company might rely, each opinion or ruling and each
most recent determination letter covering the entire Company Employee
Plan (limited to Company Employee Plans currently maintained) and
subsequent determination letters covering amendments (including the
applications for any such opinions, rulings and determination letters)
from the United States Department of Labor, Pension Benefit Guaranty
Corporation (the "PBGC") or Internal Revenue Service, and each current
registration statement and prospectus filed with the Securities and
Exchange Commission.
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(c) Prohibited Transactions; Reportable Events. Except as set
forth on Schedule 5.20(c)(1), none of the Company Employee Plans, none
of the trusts or arrangements created thereunder, no trustee,
custodian or administrator or any person or entity holding or
controlling assets of any of the Company Employee Plans, and no other
person, has engaged in any "prohibited transaction" (as such term is
defined in ERISA or the Code) with respect to a Company Employee Plan
unless an exemption under section 408 of ERISA or section 4975 of the
Code, as applicable, was received. Except as set forth on Schedule
5.20(c)(2), no "reportable events" (as such term is defined in ERISA)
have occurred with respect to any of the Company Employee Plans
covered by Title IV of ERISA. Except as set forth on Schedule
5.20(c)(3), no event or condition has occurred in connection with
which the Company (including any asset thereof) is, or may reasonably
be expected to be, directly, or indirectly through any affiliate,
subject to any liability, lien or encumbrance with respect to any
Controlled Group Employee Plan under the Code or ERISA or any other
law, as currently in effect, including, without limitation, ERISA
sections 409, 502(i), 4062, or 4069 or Part 6, Subtitle B, Title I or
Code sections 4971, 4972, 4975, 4976, 4977, 4978, 4978B, 4979A, 4980
or 4980B or under any agreement, instrument, or law currently in
effect, pursuant to or under which the Company is required to
indemnify any person against such liability.
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(d) Funding. Except as set forth on Schedule 5.20(d)(1), the
Company does not maintain any defined benefit pension plan the funding
of which is subject to section 412 of the Code, and all contributions
under section 412 of the Code and all PBGC premiums required to have
been made prior to the Closing Date with respect to any Company
Employee Plan have been made. Except as set forth on Schedule
5.20(d)(2), none of the Company Employee Plans subject to section 412
of the Code has incurred any "accumulated funding deficiency" (as such
term is defined in the Code), and there is no employer liability with
respect to any of the Company Employee Plans as determined in
accordance with section 4062 of Title IV of ERISA. The actuarially
computed present value of the projected benefit obligations of each
Company Employee Plan subject to Title IV of ERISA determined in
accordance with Statement of Financial Accounting Standard No. 87 do
not in the aggregate exceed the value of the aggregate amount of
assets of such Employee Plan, except as and to the extent disclosed on
Schedule 5.20(d)(3).
(e) Compliance. The Company has complied in all material
respects with all of its obligations under each of the Company
Employee Plans and all provisions of ERISA, the Code and any and all
other laws, regulations, rulings, releases and other official
pronouncements applicable to the Company Employee Plans. There are no
pending, threatened or anticipated claims by or on behalf of any
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Company Employee Plan, by any employee or beneficiary covered under
any Company Employee Plan, or otherwise involving any Company Employee
Plan (other than routine claims for benefits). Except as set forth on
Schedule 5.20(e), to the best knowledge of the Company or Seller, no
issue is pending with any Governmental Authority with respect to any
Company Employee Plan or Controlled Group Employee Plan that may
subject the Company or any Company Employee Plan to the payment of a
tax or any other amount.
(f) Extended Representations for Title IV of ERISA. To the
extent that the representations and warranties in this paragraph 5.20
apply with respect to any liability under Title IV of ERISA or section
412 of the Code, they are made not only with respect to each Company
Employee Plan, but also with respect to each Employee Plan subject to
Title IV of ERISA to which the Company or any member of the Company's
Controlled Group made, or was required to make, contributions during
the six (6)-year period ending on the Closing Date.
(g) Accuracy of Information. The information set forth on
Schedule 5.20(g), which has been relied upon by Buyer in connection
with the negotiation of the Closing Date Shares Purchase Price and
certain adjustments to the Purchase Price, regarding the Employee Plan
liabilities assumed by the Company under this Agreement is complete
and accurate for the purpose intended.
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5.21. Prior Conduct of Business. Seller has, since December 31, 1996,
conducted the Business only in the ordinary course consistent with the Company's
historical business practice and, with respect to (A), in the case of clauses
(ii), (iii) and (vi) below, the operation of the Acquired Business and (B), in
the case of clauses (i), (iv) and (v), the operation of the Business, since
December 31, 1996:
(i) The Company has not committed to participate in, or
(unless contractually or otherwise required to do so prior to the date
hereof) participated in, any multiemployer pension plan;
(ii) The Company has not entered into or terminated any
contract, agreement, plan or lease, or made any change in any of its
contracts, agreements, plans or leases other than in the ordinary and
usual course of business or in the case of contracts and agreements
that do not involve payment by the Company of more than $100,000 in
any single case or have a term of 12 months or less;
(iii) The Company has not sold, mortgaged, pledged,
encumbered or otherwise disposed of any of the Acquired Assets (except
for the real property at the Grandview tunnel (Columbus, Ohio) and at
Richmond, Indiana, and except for interests in real property located
in the State of Michigan) and has maintained the Acquired Assets in
reasonably good operating condition, ordinary wear and tear excepted;
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(iv) The Company has not adopted any employee benefit plan
or arrangement, amended or terminated any existing employee benefit
plan or arrangement, or except as otherwise may have been required by
any existing employee benefit plan or arrangement, increased the
compensation of any employee, other than, in each case, in the
ordinary course of business; and
(v) The Company has not merged with, liquidated or otherwise
combined with any other business, person or entity except as otherwise
provided by this Agreement.
Without limiting the generality of the foregoing, the Company has, since
December 31, 1996, (i) maintained inventory in the ordinary course of business
and (ii) completed and capitalized all capital projects underway or to be
commenced under its capital budget (such projects being set forth on Exhibit F
hereto), including, without limitation, (a) relocation of the gravel plant at
Columbus, (b) the dredge modifications in Dayton at Fairborn and Troy and (c)
the screen and crusher upgrade at Xenia and Troy, including shutdown and
relocation of plant and equipment from Richmond, Indiana to Troy.
5.22. Assets Related to "Project Rocket". Seller has caused the
Company to transfer to Seller the assets of the Company set forth on Schedule
5.22, which assets are used in connection with "Project Rocket."
5.23. Ownership of Assets. Except as set forth on Schedule 5.23, the
Company owns, leases or has the right to use
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(i) all assets either used in the Acquired Business or necessary for
the conduct of the business and operations of the Acquired Business as operated
on the date hereof and (ii) the Intellectual Property.
5.24. Title to Shares. Seller is the sole record and beneficial owner
of the Shares. At the Closing, Seller shall transfer to Buyer good and
marketable title to the Shares, free and clear of any liens or any other
encumbrances.
5.25. Additional Information. Set forth on Schedule 5.25 is additional
information as to matters pertaining to the operation of the Acquired Business
which Seller or the Company desires to disclose to Buyer in connection with the
consummation of the transactions contemplated by this Agreement.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as of the date hereof and as of
the Closing as follows:
6.1. Organization and Standing of Buyer. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
North Carolina and has all requisite corporate power and authority to enter into
this Agreement and perform its obligations hereunder.
6.2. No Violation. The execution and delivery of this Agreement do not
and the consummation by Buyer of the transactions contemplated hereby do not and
will not (i) violate or conflict with any provision of the Articles of
Incorporation
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or the Bylaws of Buyer, (ii) violate or conflict with, or result (with the
giving of notice or lapse of time or both) in a violation of or constitute a
default (or give rise to any right of termination, cancellation or acceleration)
under any of the terms, conditions or provisions of any note, license, agreement
of other instrument or obligation to which Buyer is a party or by which any of
its assets may be bound, except for such violations or defaults (or rights of
termination, cancellation or acceleration) as to which requisite waivers or
consents have been obtained, or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Buyer or any of its assets.
6.3. Enforceability. This Agreement and the agreements and instruments
contemplated by this Agreement to which Buyer is a party or a signatory have
been duly authorized, executed and delivered by Buyer and constitute the legal,
valid and binding obligations of Buyer enforceable in accordance with their
terms. All necessary corporate proceedings of Buyer have been taken to authorize
this Agreement and the agreements contemplated by this Agreement and all
transactions contemplated hereby and thereby.
6.4. No Litigation. There is no litigation, action, claim, proceeding,
or governmental investigation pending or to Buyer's knowledge threatened against
Buyer which may affect Buyer's ability to perform its obligations hereunder or
under any agreement or instruments contemplated by this Agreement, and to the
knowledge of Buyer, there is no basis for any such action.
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ARTICLE 7.
[INTENTIONALLY OMITTED]
ARTICLE 8.
THE CLOSING
8.1. Closing. The consummation of the transaction contemplated by this
Agreement (the "Closing") shall take place at the offices of Willkie Farr &
Gallagher, 153 East 53rd Street, New York, New York 10022 on May 28, 1997, or at
such other time and place as mutually agreed to by the parties (hereinafter
referred to as the "Closing Date"). The transaction is to be effective as of
11:59 p.m. Eastern Daylight Savings Time on the Closing Date (the "Effective
Time").
8.2. Deliveries at Closing.
(a) Deliveries by Seller. At or prior to the Closing, Seller
shall deliver to Buyer the following:
(i) Corporate Proceedings. Certified copies of
corporate proceedings of Seller authorizing or ratifying the
execution and performance of this Agreement.
(ii) Consents and Estoppel Certificates. Written
consents and estoppel certificates by the parties to all
contracts, agreements, undertakings and commitments
involving payment by the Company of more than $10,000 in any
single case and which would otherwise be in default or
subject to nonrecurring
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payments as a result of the transactions contemplated by
this Agreement.
(iii) Ancillary Agreements. Copies of the
following documents executed by an authorized officer of
Seller and, where applicable, by an authorized officer of
the Company: (i) the Supply Agreements, (ii) the Non-Compete
Agreement, (iii) the Service Level Agreement and (iv) the
Management Services Agreement.
(iv) Title Insurance. At the Closing, Seller will
provide Affidavits substantially in the form attached hereto
as Schedule 8.2(a)(iv).
(b) Deliveries by Buyer. Upon Seller's tender of delivery of
the foregoing at the Closing, Buyer shall deliver to Seller the
following:
(i) Payment of Purchase Price. Payment by wire
transfer to Seller of the Purchase Price set forth in
paragraph 2.2(b), wired pursuant to written instructions
given by Seller no later than three (3) business days prior
to the Closing Date.
(ii) Corporate Proceedings. Certified copies of
corporate proceedings of Buyer authorizing or ratifying the
execution and performance of this Agreement.
(iii) Ancillary Agreements. Copies of the
following documents executed by an authorized officer of
Buyer: (i) the Supply Agreements, (ii) the Non-Compete
Agreement, (iii) the Service Level Agreement and (iv) the
Management Services Agreement.
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ARTICLE 9.
[INTENTIONALLY OMITTED]
ARTICLE 10.
INDEMNIFICATION
10.1. Indemnification by Seller.
(a) Seller and its successors in interest shall reimburse, indemnify
and hold harmless Buyer and the Company, and their respective successors and
assigns as provided in this Article 10, at all times on and after the date of
this Agreement, against and in respect of any and all claims, causes of action,
suits, proceedings, demands, assessments, judgments, losses, damages, costs,
expenses and liabilities whatsoever (individually a "Loss" and collectively
"Losses") arising out of, related to, resulting from or based upon any of the
following:
(i) the Seller-Assumed Liabilities;
(ii) the Basket Liabilities; and
(iii) (A) Any breach or non-fulfillment of any of the
covenants or agreements of Seller or, for any period prior to Closing,
the Company, contained in or made pursuant to this Agreement or any of
the agreements required to be delivered by Seller under paragraph
8.2(a)(iii) and (B) any inaccuracy or breach of any of the
representations and warranties of Seller that is contained in this
Agreement, any of the agreements required to be delivered by Seller
under paragraph 8.2(a)(iii) or in any certificate or other instrument
furnished to Buyer
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hereunder or thereunder (all Losses arising under this paragraph
10.1(a)(iii)(B) are collectively referred to herein as "Seller
Contract Claims");
provided, however, that Seller shall not be required to indemnify Buyer and the
Company under this Article 10 in respect of any Basket Liability or Seller
Contract Claim until the aggregate amount of all Basket Liabilities and Seller
Contract Claims exceeds the Aggregate Basket Amount, whereupon Seller shall be
required to indemnify Buyer and the Company in respect of Basket Liabilities and
Seller Contract Claims to the extent (but only to the extent) Losses in respect
of Basket Liabilities and Seller Contract Claims exceed the Aggregate Basket
Amount. Any provision in this Agreement to the contrary notwithstanding, (A)
Seller shall only be liable for individual claims (or a series or group of
related claims arising from the same set of facts or circumstances) in respect
of Basket Liabilities and Seller Contract Claims that exceed $10,000 and (B)
Seller shall only be liable under this Article 10 for Losses in respect of
Category 2 Liabilities, Category 3 Liabilities and Seller Contract Claims (other
than for any inaccuracy or breach of any of the representations and warranties
of Seller that is contained in paragraph 5.24 of this Agreement) up to an
aggregate amount equal to $117,250,000. Seller's indemnification obligation in
respect of any Losses in respect of (W) paragraph 10.1(a)(iii)(A), (X) Category
1 Liabilities, (Y) Seller-Assumed Liabilities and (Z) any Seller Contract Claim
for any inaccuracy or breach of any of the representations and warranties of
Seller that is contained in paragraph 5.24 of this Agreement) up to an aggregate
amount equal to $117,250,000. Seller's indemnification obligation in respect of
any Losses in respect of (W) paragraph 10.1(a)(iii)(A), (X) Category 1
Liabilities, (Y) Seller-Assumed Liabilities and (Z) any Seller Contract Claim
for any inaccuracy or breach of any of the representations and warranties of
Seller that is contained
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in paragraph 5.24 of this Agreement shall be unlimited in amount, subject, in
the case of Category 1 Liabilities, to the $10,000 minimum set forth in clause
(A) above.
(b) Subparagraphs 10.1(a)(i) through 10.1(a)(iii) above shall be
deemed to be independent bases for indemnification and Buyer shall be entitled
to indemnification regardless of whether the basis for indemnity is excluded or
included under another subparagraph; provided, that such treatment is not
intended to permit Buyer or the Company to be indemnified for amounts in excess
of Losses actually incurred. The indemnification provided by this paragraph 10.1
shall be interpreted and construed as broadly as possible and shall encompass
claims by Buyer against Seller for any Loss sustained by Buyer and its
successors and assigns whether or not involving any claim, action, suit, demand
or proceeding by a third party.
(c) The results of any investigation by Buyer or its representatives
shall not limit the effectiveness of Seller's or the Company's representations,
warranties or covenants herein or the right of Buyer to obtain indemnification
as provided by this Agreement.
(d) Seller acknowledges that Buyer may after the Closing Date sell a
portion of the Acquired Business to one or more third Persons (a "Third Party
Purchaser"). All indemnification costs payable to such Third Party Purchaser
resulting from Losses arising out of, related to, resulting from or based upon
such representations, warranties, covenants and indemnities ("Third
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Party Indemnity Costs") shall be paid by Buyer directly to such Third Party
Purchaser and any such payment by Buyer shall be treated as Indemnifiable Losses
under this Article 10. Notwithstanding any such subsequent sale, Buyer shall
retain all rights to indemnification provided to it pursuant to this Article 10,
including indemnification rights with respect to any portion of the Acquired
Business that is sold to a Third Party Purchaser, including the right to be
indemnified for any amounts paid by Buyer to any such subsequent purchaser with
respect to such portion of the Acquired Business to the extent any such amounts
constitute an indemnifiable Loss to Buyer under this Article 10.
(e) Buyer agrees that, from time to time, to the extent Buyer receives
any Antitrust Litigation Amount and (i) Losses previously applied against the
Aggregate Basket Amount have exceeded the Aggregate Basket Amount and (ii) Buyer
has received from Seller indemnification payments under this paragraph 10.1 in
respect of Basket Liabilities or Seller Contract Claims, Buyer shall pay to
Seller the lesser of (A) the indemnification payments received to such time or
(B) such Antitrust Litigation Amount. For the avoidance of doubt, the intention
of this paragraph 10.1(e) is to put the parties in the same place independent of
the timing of receipt of any Antitrust Litigation Amount and the incurrence of,
and reimbursement for, indemnifiable Losses under paragraph 10.1(a) in respect
of Basket Liabilities or Seller Contract Claims.
10.2. Indemnification by Buyer.
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(a) Buyer and its successors in interest shall, and shall cause the
Company (and, where applicable, Martin Marietta Materials Technologies, Inc.)
and its successors in interest to, indemnify and hold Seller and its respective
successors and assigns, at all times on and after the date of this Agreement,
harmless from and against and in respect of any and all Losses arising out of,
related to, resulting from or based upon either of the following:
(i) the Company-Retained Liabilities; and
(ii) (A) Any breach or non-fulfillment of any of the
covenants or agreements of Buyer or, for any period after Closing, the
Company, contained in or made pursuant to this Agreement or any of the
agreements required to be delivered by Buyer under paragraph
8.2(b)(iii) and (B) any inaccuracy or breach of any of the
representations or warranties of Buyer that is contained in this
Agreement, any of the agreements required to be delivered by Buyer
under paragraph 8.2(b)(iii) or in any certificate or other instrument
furnished to Seller hereunder or thereunder (all Losses arising under
this paragraph 10.2(a)(ii)(B) are collectively referred to herein as
"Buyer Contract Claims");
provided, however, that Buyer shall not be required to indemnify Seller under
this Article 10 in respect of any Buyer Contract Claim until the aggregate
amount of all Buyer Contract Claims exceeds $3,000,000, whereupon Buyer shall be
required to indemnify Seller in respect of Buyer Contract Claims to the extent
(but only to the extent) Losses in respect of Buyer
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Contract Claims exceed $3,000,000. Any provision in this Agreement to the
contrary notwithstanding, (A) Buyer shall only be liable for individual claims
(or a series or group of related claims arising from the same set of facts or
circumstances) in respect of Buyer Contract Claims that exceed $10,000 and (B)
Buyer shall only be liable under this Article 10 for Losses in respect of Buyer
Contract Claims up to an aggregate amount equal to $117,250,000.
(b) The indemnification provided in this paragraph 10.2 shall be
interpreted and construed as broadly as possible and shall encompass claims by
Seller against Buyer for any Loss sustained by Seller and their respective
successors and assigns whether or not involving any claim, action or proceeding
by a third party.
10.3. Procedure.
(a) Notice. Promptly after receipt by a party or parties
seeking indemnification under this Article 10 ("Indemnitee") of notice
of any claim, liability or expense to which the indemnification
obligations hereunder would apply, taking into account the baskets
contained in the provisos to paragraph 10.1(a) and paragraph 10.2(a)
above (a "Claim"), the Indemnitee shall give notice thereof in writing
to the other party or parties ("Indemnitor") of the facts that are the
basis of the Claim. The amount of the Claim as set forth in the notice
shall be based upon the Indemnitee's good faith estimate of the
maximum exposure to Indemnitee (including, but not
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limited to, attorneys' and other professionals' fees) presented under
the circumstances of the Claim; provided, however, the amount set
forth in the notice of Claim shall not limit Indemnitee's rights to
indemnification under this Article 10 if the ultimate Loss to
Indemnitee shall exceed the amount set forth in the notice of Claim.
(b) Action on Claims.
(i) Acknowledgment of Obligation of Indemnity. The
Indemnitor shall give written notice to Indemnitee within
thirty (30) days after receipt of the notice required by
paragraph 10.3(a) advising whether it acknowledges its
obligation to indemnify Indemnitee with respect to the Claim
or it disputes its obligation to indemnify Indemnitee with
respect to the Claim or the amount of such Claim.
(ii) Acknowledged Claims. If the Indemnitor
acknowledges its indemnification obligation with respect to
the Claim, and (A) such Claim is based upon an asserted
liability or obligation to a person or entity that is not
the Company or a party to this Agreement, including a Claim
of a Third Party Purchaser made against Buyer (a "Third
Party Claim"), Indemnitor shall have the right to defend or
settle such Third Party Claim and Indemnitee shall have the
right to participate in such defense or any settlement
negotiations or (B) such Claim is not a Third Party Claim,
and if Seller is the Indemnitor, such Claim
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shall be satisfied as provided in subparagraph (c).
Notwithstanding the foregoing, Indemnitor may not settle any
Third Party Claim without the consent of the Indemnitee,
which consent shall not be unreasonably withheld or delayed
(it being acknowledged and agreed that Indemnitee may
withhold its consent if, among other things, a proposed
settlement (A) would not include as an unconditional term
thereof a release of Indemnitee from all liability in
respect of such Claim or (B) involves any relief other than
the payment by Indemnitor of money damages).
(iii) Unacknowledged Third Party Claims. If
Indemnitor shall not have acknowledged its obligation to
indemnify Indemnitee with respect to a Third Party Claim in
accordance with paragraph 10.3(b)(i), Indemnitor shall be
deemed to have waived its right to defend or settle such
Claim, and Indemnitee (A) shall have the right to defend or
settle such Claim and (B) shall continue in either case to
be entitled to indemnification pursuant to this Article 10.
Indemnitee may only settle a Claim that Indemnitor is not
entitled to defend or settle pursuant to this paragraph
10.3(b)(iii) upon delivery to Indemnitor of a statement by
counsel for the Indemnitee that any such proposed settlement
would be in good faith under the circumstances of such
Claim. If Indemnitor does not believe that such proposed
settlement is being made in
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good faith under the circumstances, its sole remedy shall be
to acknowledge, within the time period specified in such
statement by counsel (which time period shall be reasonable
under the circumstances in the judgment of such counsel in
light of the pending settlement discussions), its
indemnification obligation with respect to the Claim
(including any Losses incurred by the Indemnitor in
defending, settling or seeking to settle such Claim) and
assume the defense of such Claim.
(c) Satisfaction of Non-Third Party Claims.
(i) Nonremedial Claims. If Indemnitor has
acknowledged its obligation to indemnify Indemnitee with
respect to a Claim that is not a Third Party Claim and does
not dispute the amount of such Claim, Indemnitee shall be
entitled to satisfaction of any related Loss within 10 days.
If Indemnitor has not acknowledged its obligation to
indemnify Indemnitee or disputes the amount of a Claim that
is not a Third Party Claim, subject to paragraph 10.3(c)(ii)
below, (A) Indemnitor and Indemnitee shall each consider the
possibility of using, but shall not be required to use, an
alternative dispute resolution mechanism and (B) Indemnitor
and Indemnitee shall be free to pursue any and all rights
they may otherwise have.
(ii) Remedial Claims. If the Loss relates to a
Claim that is not a Third Party Claim and involves a
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matter involving remedial action (other than remedial action
governed by paragraph 10.6, which addresses certain remedial
actions that may be taken prior to the time when the
aggregate amount of all Basket Liabilities and Seller
Contract Claims exceeds the Aggregate Basket Amount;
provided, however, that remedial action which, based on
Indemnitee's proposed plan of remediation, would cause the
aggregate amount of all Basket Liabilities and Seller
Contract Claims to exceed the Aggregate Basket Amount, shall
be governed by this paragraph 10.3(c)), Indemnitee shall
give notice to Indemnitor describing the remedial action
that Indemnitee proposes to take to satisfy such Claim.
Indemnitor may object in writing to Indemnitee's proposed
remedial action within ten days of receipt of Indemnitor's
notice, which objection shall be deemed waived if Indemnitor
does not deliver to Indemnitee within twenty Business Days
thereafter Indemnitor's proposed course of remedial action
to satisfy the Claim. Indemnitee shall allow Indemnitor to
undertake its proposed course of remedial action if and only
if such proposed course of remedial action (i) provides for
the satisfaction of the Claim in a manner consistent with
Indemnitee's existing standards or operating procedures (as
evidenced by Indemnitee's then current operations at the
affected site and at comparable facilities) and (ii) will
not be more
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disruptive of Indemnitee's operations at the affected site
then the remedial action proposed by Indemnitee (clauses (i)
and (ii) being the "Remedial Standard"). If Indemnitor fails
to properly object to Indemnitee's proposed remedial action,
or if in Indemnitee's reasonable judgment Indemnitor's
proposed course of remedial action fails to comply with the
Remedial Standard, Indemnitee shall have the right to
undertake its proposed remedial action. In connection with
any dispute concerning remedial action pursuant to this
paragraph 10.3(c), Indemnitor and Indemnitee shall each
consider using, but shall not be required to use, an
alternative dispute resolution mechanism.
(d) Actions Required to Minimize Damages and Penalties. This
paragraph 10.3 shall not be construed to reduce or lessen the
obligation of Indemnitor under this Article 10 if prior to the
expiration of the thirty (30) day notice period described above in
subparagraph (b) or the ten (10) day notice period described above in
subparagraph (c) the Indemnitee shall take action with respect to a
Claim if such action is reasonably required to minimize damages or
avoid a forfeiture or penalty imposed by law.
10.4. Nature and Survival of Representations and Warranties and
Certain Liabilities. (a) The representations, warranties, covenants, indemnities
and agreements of the parties contained herein or in any instrument or document
delivered or to
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be delivered pursuant to this Agreement shall survive the Closing, without
limitation; provided, however, that (i) representations and warranties and
claims for indemnification pursuant to paragraphs 10.1(a)(iii)(B) and
10.2(a)(ii)(B) shall survive for a period of two years from the Closing Date
(unless a longer period is provided in clauses (ii) or (iii) immediately
following); (ii) any representations or warranties relating to any claim for
Taxes and related claims for indemnification pursuant to paragraph
10.1(a)(iii)(B) (except to the extent such Taxes and claims constitute
Seller-Assumed Liabilities) shall survive until thirty (30) days after the
expiration of the applicable statute of limitations (as the same may be
extended) for the taxing authority to file claims or assessments against the
taxpayer; and (iii) the representations and warranties set forth in paragraph
5.24 and related claims for indemnification shall survive the Closing without
limitation.
(b) The indemnification rights of Buyer with respect to Category 2
Liabilities shall survive for a period of five (5) years from the Closing Date,
and the indemnification rights of Buyer with respect to Category 3 Liabilities
shall survive for a period of ten (10) years from the Closing Date. The
indemnification rights of (A) Buyer with respect to (i) Category 1 Liabilities,
(ii) Seller-Assumed Liabilities and (iii) claims for indemnification pursuant to
paragraph 10.1(a)(iii)(A) above and (B) Seller with respect to (i)
Company-Retained Liabilities and (ii) claims for indemnification pursuant to
paragraph
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10.2(a)(ii)(A) above shall survive the Closing without limitation.
(c) Notwithstanding anything else in this Agreement to the contrary,
if notice pursuant to paragraph 10.3 of this Agreement of a claim, breach of a
representation or warranty or indemnification right shall have been given to the
Indemnitor prior to the date on which such claim, representation or warranty or
indemnification right would otherwise terminate pursuant to this paragraph 10.4,
then such claim, representation or warranty or indemnification right shall
survive the time at which it would otherwise terminate pursuant hereto with
respect to the subject matter referred to in such notice.
10.5. [INTENTIONALLY OMITTED].
10.6. Remediation. (a) With respect to a matter that appears to Buyer
at the time to be a Basket Environmental Matter, until the aggregate amount of
all Basket Liabilities and Seller Contract Claims exceeds the Aggregate Basket
Amount, Buyer agrees to notify Seller in advance of any particular environmental
remediation activity conducted by Buyer on the Leased Real Property or Owned
Real Property for which Buyer has received a third party cost estimate of total
costs and expenses greater than $100,000, and to provide Seller with a written
plan of remediation. Upon receipt of such written plan of remediation, Seller
shall have twenty (20) Business Days to respond to Buyer (or such lesser time as
shall be indicated in the notice in the event a remediation plan or remediation
activities must be submitted or undertaken in less than twenty (20) Business
Days in
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accordance with the requirements of applicable law, regulation, rule or order).
(b) If Seller approves the plan, or if Seller fails to give notice of
disapproval of Buyer's plan (which notice shall include Seller's proposed
remediation plan) within five (5) Business Days following receipt of a second
notice from Buyer (which second notice may be sent no earlier than the fifteenth
Business Day following receipt of the original notice, except where a
remediation plan or remediation activities must be submitted or undertaken
sooner in accordance with the requirements of applicable law, regulation, rule
or order) Buyer may undertake the planned remediation activity and,
notwithstanding anything else in this Agreement to the contrary, all costs and
expenses of Buyer actually incurred as a result of such planned remediation
activity, but (unless otherwise approved by Seller) only to the extent such
costs and expenses do not exceed the maximum costs and expenses budgeted for
such planned remediation activity by the greater of $20,000 or 10%, shall be
valid and nondisputable Losses ("Nondisputable Loss Amounts"); provided, that
where a remediation plan or remediation activities must be submitted or
undertaken sooner in accordance with the requirements of applicable law,
regulation, rule or order, affecting the notice periods set forth herein, Seller
shall not be estopped from later disputing the validity and amounts of any
Losses incurred as a result of such accelerated remediation activity.
(c) If Seller disapproves of Buyer's proposed remediation plan, Buyer
will consult with Seller in good faith to reach an
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agreement. If an agreement is reached between Buyer and Seller as to planned
remediation activity, all costs and expenses of Buyer actually incurred as a
result of such planned remediation activity shall be Nondisputable Loss Amounts.
If Buyer and Seller cannot agree upon a plan of remediation within fifteen (15)
Business Days of Seller's initial rejection of Buyer's plan (or such lesser time
as shall be indicated in Buyer's notice in the event a remediation plan or
remediation activities must be submitted or undertaken in less than fifteen (15)
Business Days in accordance with the requirements of applicable law, regulation,
rule or order), Buyer and Seller will jointly retain a nationally-recognized
environmental consulting firm (the fees and expenses of which shall be shared
equally between Buyer and Seller) which shall be charged with determining, in
its professional judgment, the most cost-effective course of action that
complies with the Remedial Standard. Buyer may undertake the prescribed
remediation activity or its own plan of remediation and, notwithstanding
anything else in this Agreement to the contrary, all costs and expenses of Buyer
actually incurred as a result of such remediation shall be Nondisputable Loss
Amounts up to, in either case, the sum of (i) the maximum amount estimated by
the foregoing consulting firm for the remediation activity prescribed by such
firm hereunder plus (ii) the greater of $20,000 or 10% of such estimated amount.
(d) Notwithstanding anything in this paragraph 10.6 to the contrary,
nothing shall preclude Buyer from taking any action at any time (i) in the event
of an emergency or (ii) if, in its good
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faith honest judgment, Buyer determines that such action is necessary or
appropriate in order to mitigate an Environmental Matter or to lessen the amount
of any Loss or potential Loss in respect thereof. Further, failure of Buyer to
comply with this paragraph 10.6 shall not limit Buyer's rights under this
Agreement to indemnification or to charge amounts against the Aggregate Basket
Amount, but, to the extent Buyer fails to comply with this paragraph 10.6,
Seller shall have the right to challenge any expenditures made by Buyer under
this paragraph 10.6.
(e) Buyer and Seller acknowledge and agree that remediation of
Environmental Matters often requires changes in a plan of remediation and that
nothing in this paragraph 10.6 is intended to preclude honest good faith changes
(whether in scope of work, cost or any other aspect thereof) to a plan proposed
by Buyer or Seller or prescribed by the consulting firm. To the extent any such
changes in a plan of remediation are made, Buyer and Seller agree to consult and
cooperate with each other and with any consulting firm retained and (i) Buyer
and Seller shall not be bound by any specific timeframe or notice provision
hereof and (ii) the cost of all such honest good faith changes shall constitute
Losses under this Article 10 and, where agreed to by Buyer and Seller or to the
extent such costs do not exceed the maximum costs budgeted for such planned
remediation activity (determined immediately prior to such changes) by the
greater of $20,000 or 10%, shall be Nondisputable Loss Amounts.
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(f) Nothing in this paragraph 10.6 will preclude the parties from
terminating, prior to completion, the remediation process under this paragraph
10.6 and any remediation process under paragraph 10.3 as to matters which
initially appear to be Basket Environmental Matters but as a result of
additional information are, in fact, Seller-Assumed Liabilities.
(g) Neither initiation by Buyer or the Company of the remediation
process under this paragraph 10.6, nor the participation in such process by
Buyer, the Company or Seller will be deemed to be an admission on the part of
any such party that a liability is a Basket Environmental Matter nor (except as
provided further in this sentence) will it preclude any such party from taking
any other position or making any other claim as to such matter inconsistent with
the position taken in such process, it being the intent of the parties that the
only effect of this paragraph 10.6 shall be that if it is ultimately concluded
that such matter is a Basket Environmental Matter or Seller-Assumed Liability
(as to a completed remediation under paragraph 10.6), then in such event, the
qualification of such Losses incurred in such remediations as Nondisputable Loss
Amounts will be determined under this paragraph 10.6 to preclude the parties
from disputing the amounts of the Loss pertaining to the cost of such
remediation.
(h) The establishment of an amount as a Nondisputable Loss Amount
pursuant to this paragraph 10.6 shall not create any implication that any costs
and expenses for the same matter in
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excess of such Nondisputable Loss Amount are or are not Losses pursuant to this
Article 10.
10.7. Failure to Notify, etc. Notwithstanding any provision of this
Article 10 to the contrary, in any case where Indemnitor or any person acting on
behalf of Indemnitor, or Indemnitee or any person acting on behalf of
Indemnitee, is required pursuant to this Article 10 to give any notice,
statement or other communication, whether or not a time period is specified for
the giving of any such notice, statement or other communication, the failure to
properly provide any such notice, statement or other communication, whether on a
timely basis or at all, shall not affect the liabilities or rights of the
Indemnitor or Indemnitee pursuant to this Article 10, except to the extent that
the party entitled to have been given such notice shall have been materially
prejudiced as a result of the failure or delay in giving such notice.
10.8. Fees. In any dispute between Buyer and Seller, the prevailing
party in such dispute shall be entitled to recover reasonable attorney's fees.
ARTICLE 11.
TAX MATTERS
11.1. Certain Tax Returns. (a) For purposes of this Agreement,
including, without limitation, paragraph 3.9(c) above, to the extent permitted
by law, the Company, Buyer and Seller shall elect to close the taxable year with
respect to Income Taxes of the Company as of the end of the Closing Date. Where
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such a closing of the taxable year is not permitted, for taxable periods
beginning before and ending after the Closing Date, the Income Taxes
attributable to the taxable period beginning before and ending on the Closing
Date shall be treated as relating to the period prior to the Closing Date based
on a closing of the books and records of the Company as of the end of the
Closing Date.
(b) In the case of Tax Returns relating to Income Taxes which are
Seller-Assumed Liabilities under paragraph 3.9(c) hereof and are for periods
ending on or before the Closing Date, Seller shall be responsible for the
preparation and filing of such Tax Returns and shall pay the Income Taxes due
with respect to such Tax Returns; provided, however, that where such Tax Return
is required by law to be executed and filed by the Company or Buyer, Seller
shall furnish a draft of such Tax Return to Buyer at least ten (10) business
days prior to the due date for such return, and at that time shall pay Buyer the
Income Taxes due with respect to such Tax Return to the extent such Income Taxes
constitute Seller-Assumed Liabilities. In cases where Tax Returns relate to
periods after the Closing Date, Buyer or the Company shall prepare and file such
Tax Returns. Seller shall pay over to Buyer the portion of the Income Taxes due
with respect to such Tax Return to the extent such Income Taxes are
Seller-Assumed Liabilities, and Buyer shall file and pay the Income Taxes due
with respect to such Tax Returns.
11.2. Carrybacks. If the Company carries back any loss or credit that
it has realized for Tax purposes and such carryback
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results in a tax refund to Seller, then Seller shall pay to Buyer or the Company
the amount of such tax refund, together with any interest received thereon,
within ten (10) business days of receipt of such amounts. If it is later
determined by the appropriate taxing authority that Seller is not entitled to
any part or all of such refund, then Buyer or the Company will repay to the
taxing authority the amount determined by the taxing authority to be owed to it
with respect to such refund.
11.3. Tax Refunds. Except for refunds described in paragraph 11.2
above, Seller shall be entitled to all refunds of Taxes ("Refunds") attributable
to Income Taxes that are Seller-Assumed Liabilities. A party receiving a Refund
to which another party is entitled pursuant to this Agreement shall pay the
amount to which such other party is entitled (as adjusted pursuant to paragraph
11.5) within ten (10) business days after the receipt of the Refund.
11.4. Characterization of Indemnification Payments. All amounts paid
by Seller or Buyer under Article 10 shall be treated for all Tax purposes as
adjustments to the Final Shares Purchase Price except to the extent such
treatment is not permitted by the applicable Tax Law. In the event that such
treatment is disputed by any taxing authority, the party receiving notice of
such dispute shall promptly notify and consult with the other party concerning
resolution of such dispute. If such dispute is resolved in a manner that results
in a Loss to the indemnified party, then the party making the indemnification
payment shall pay the amount of such Loss to the indemnified party, including,
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but not limited to, the amount determined under paragraph 11.5 below.
11.5. Tax Effect. The amount of any Losses for which indemnification
is provided under Article 10 to an Indemnitee shall be (i) increased to take
account of any net Tax cost incurred by such Indemnitee arising from the receipt
or accrual of indemnity payments hereunder (grossed up for any such increase)
and (ii) reduced to take account of any Tax benefit realized by such Indemnitee
as a result of the deductibility of such Losses (or payments with respect
thereto). Any indemnification payment hereunder shall initially be made without
regard to this paragraph and shall be (a) increased to reflect any such net Tax
cost (including gross-up) or (b) reduced (or give rise to a repayment by the
Indemnitee in lieu of such reduction) for any net Tax benefit only after such
Indemnitee has "actually realized" such cost or benefit. For purposes of this
Agreement, an Indemnitee shall be deemed to have "actually realized" a net Tax
cost or a net Tax benefit to the extent that, and at such time as, the amount of
Taxes payable by such Indemnitee is increased above or reduced below, as the
case may be, the amount of Taxes that such Indemnitee would be required to pay
but for the receipt of the indemnity payment or the incurrence or payment of
such Losses. For purposes of this Agreement, an Indemnitee shall be deemed to
have "actually realized" a net Tax benefit only as of the end of the taxable
year in which such benefit arises and in determining the amount of such benefit,
any subsequent Tax detriment that will be
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incurred because of the availability of the Tax benefit shall be taken into
account.
11.6. Control of Proceedings in Tax Related Matters. In the case of
any audit, examination or other administrative or court proceeding
("Proceeding") with respect to Taxes for which Seller, on the one hand, or
Buyer, on the other hand, are responsible pursuant to this Agreement, Buyer or
Seller, as the case may be, shall promptly inform the other party in writing of
such Proceeding. Seller shall have the right to control any such Proceedings,
and to initiate any claim for refund, file any amended return or take any other
action which it deems appropriate with respect to Taxes for taxable periods
ending on or before the Closing Date, provided, however, that Seller shall
consult with Buyer with respect to any such claims, filings, amended returns or
Proceedings that may affect Buyer for the taxable periods ending after the
Closing Date; provided, further, that Seller shall not file any such claims,
amended returns or enter into any final settlement or closing agreement that may
materially increase Taxes of Buyer without the consent of Buyer, which consent
shall not to be unreasonably withheld. Buyer shall have the right to control any
such Proceedings, and to initiate any claim for a refund, file any amended
return or take any other action which it deems appropriate with respect to Taxes
for taxable periods ending after the Closing Date, provided, however, that Buyer
shall consult with Seller with respect to any Proceeding that may affect Seller
for taxable periods beginning on or before the Closing Date; provided, further,
that Buyer
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shall not enter into any final settlement or closing agreement that may
materially increase Taxes of Seller without the consent of Seller, which consent
shall not be unreasonably withheld.
11.7. Transfer Taxes. Notwithstanding any other provision of this
Agreement to the contrary, Buyer and Seller shall be equally liable for and
shall each pay one-half of (a) all transfer (including real property transfer
taxes, and documentary Taxes) and fees imposed with respect to instruments of
conveyance in the transactions contemplated hereby and (b) all sales, use, gains
(including state and local transfer gains taxes), excise and other transfer or
similar Taxes incurred in connection with the transactions contemplated by this
Agreement; provided, however, that Seller shall be solely liable for any such
transfer taxes or fees imposed with respect to sales or distributions by Seller
or the Company prior to the Closing. Buyer or Seller, as the case may be, shall
execute and deliver to the other at the Closing any certificates or other
documents as the other may reasonably request to perfect any exemption from any
such transfer, documentary, sales, gains, excise or use Tax or otherwise comply
with applicable reporting requirements with respect to such taxes.
11.8. Consistency with Other Articles. To the extent inconsistent with
matters covered elsewhere in this Agreement, this Article 11 shall govern issues
related to Taxes.
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ARTICLE 12.
GENERAL PROVISIONS
12.1. Expenses. Buyer on one hand, and Seller on the other, shall pay
their own expenses and costs incurred in connection with the negotiation and
consummation of this Agreement and the transactions contemplated hereby;
provided, that all filing fees paid in connection with applicable government
pre-acquisition filings (including, without limitation, those under the
Hart-Scott-Rodino Antitrust Improvements Act) shall be shared equally between
Buyer and Seller.
12.2. Brokerage. All negotiations relevant to this Agreement and the
transactions contemplated hereby have been carried on by Seller directly with
Buyer without the intervention of any other person, and there are no broker's or
finder's fees for commissions payable to any person as a result of this
Agreement or the transactions contemplated hereby. Seller agrees that it will
defend, indemnify and hold Buyer harmless from and against any and all damages,
liabilities and expenses, including reasonable attorneys' fees, which may be
incurred by Buyer as a result of any claims asserted against Buyer by any broker
or other person on the basis of any arrangement made or alleged to have been
made by Seller or the Company. Buyer agrees that it will defend, indemnify and
hold Seller harmless from any and all damages, losses, liabilities and expenses,
including reasonable attorneys' fees, which may be incurred by Seller as a
result of any claims asserted against Seller by any broker or other person
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on the basis of any arrangements or agreements made or alleged to have been made
by Buyer.
12.3. Notices. All notices, requests, demands, and other
communications hereunder shall be in writing, and shall be deemed to have been
duly given if delivered in person, sent by overnight courier service (with all
fees prepaid) or mailed by registered or certified mail, return receipt
requested (with postage prepaid), as follows:
Notices to Buyer: President
Martin Marietta Materials, Inc.
2710 Wycliff Road
Raleigh, North Carolina 27607
with a copy to: Vice President and General Counsel
Martin Marietta Materials, Inc.
2710 Wycliff Road
Raleigh, North Carolina 27607
Notices to Seller: CSR America, Inc.
Resurgens Plaza, Suite 2110
945 E. Paces Ferry Road
Atlanta, Georgia 30326-1125
Attn: Chief Executive Officer
with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attn: Jeffrey W. Tindell, Esq.
Any such notice, request, demand or other communication shall be deemed to given
if delivered in person, on the date delivered or, if sent by overnight courier
service or mailed by registered or certified mail, on the date sent or mailed as
evidenced by the date of the bill of lading or postmark, as the case may be; and
shall be deemed received if delivered in person, on the date of personal
delivery; if sent by overnight courier service, on the first business day after
the date sent, or if by registered or
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certified mail on the date of delivery or attempted delivery as indicated by the
return receipt. Any such notice, request, demand or other communication shall be
given to such other representative or at such other address as a party to this
Agreement may furnish to the other parties in writing pursuant to this paragraph
12.3.
12.4. Further Assurances. Each of Seller and Buyer will, from time to
time after the Closing, at Buyer's or Seller's request, as the case may be,
execute, acknowledge and deliver or will cause to be executed, acknowledged and
delivered, all such additional documents and will take all such further action
as may be reasonably required by Buyer or Seller, as the case may be, in order
to consummate the transactions contemplated by this Agreement and to convey and
confirm the benefits intended by this Agreement and will provide such
information after the Closing as Buyer or Seller, as the case may be, may
reasonably request.
12.5. Consent to Jurisdiction. Each of the parties hereby irrevocably
submits to the jurisdiction of the United States District Court for the Northern
District of Georgia or the Georgia Superior Court in any action or proceeding
arising out of or relating to this Agreement, and each party hereby irrevocably
agrees that all claims in respect of such action or proceeding shall be heard
and determined in such United States District Court or Georgia Superior Court.
Each of the parties irrevocably waives any objection, including, without
limitation, any objection to venue based on the ground of forum non conveniens,
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which it may now or hereafter have to the bringing of any such action or
proceeding in respect of such jurisdictions.
12.6. Waiver of Jury Trial. Each of the parties irrevocably waives any
right to a jury trial with respect to any matter arising out of or in connection
with this Agreement.
12.7. Assignment; Successors In Interest.
(a) Assignment. Except with the prior written consent of
other party hereto (which shall not be unreasonably withheld), no
transfer or assignment by either party of any of its rights under this
Agreement shall be made to any person or entity.
(b) Binding Nature. This Agreement shall be binding upon the
parties to this Agreement and their respective successors and assigns
(whether or not permitted) shall inure to the benefit of the parties
to this Agreement and their respective permitted successors and
assigns (and to or for the benefit of no other person or entity,
whether an employee or otherwise, whatsoever), and any reference to a
party to this Agreement shall also be a reference to a successor or
assign.
12.8. Construction. This Agreement is intended to be performed in the
State of Georgia and shall be construed and enforced in accordance with the laws
of that State.
12.9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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12.10. Definition of Knowledge. (a) The term "knowledge," as applied
to Seller, shall mean the actual knowledge, after reasonable inquiry, of the
following individuals:
Geoff Harris
John Walker
Peter Trimble
David Clarke
Frank LaPlaca
Ellen Spinks
Paula Beuhrer
Blair Stump
Dan Judy
James Sharn
Gary Getz
Jeff Stoll
Michael Hunt
Julie Strait
Michael Zern
Each plant manager, with respect to his or her plant, as to the
matters set forth in paragraph 5.15
(b) The term "knowledge," as applied to Buyer, shall mean the actual
knowledge, after reasonable inquiry, of the following individuals:
Steven Zelnak
Janice Henry
Bruce Deerson
12.11. Definition of Company. All references in paragraphs 5.5 through
5.25 of this Agreement to the "Company" shall, unless the context manifestly
requires otherwise, include D&H.
12.12. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms and provisions of this Agreement will nevertheless
remain in full force and effect so long as the economic or legal substance of
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the transactions contemplated hereby is not affected in any manner adverse to
any party hereto. Upon any such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to affect the original
intent of the parties as closely as possible in any acceptable manner to the end
that the transactions contemplated by this Agreement are consummated to the
extent possible.
12.13. Obligations of the Company. Whenever this Agreement requires
the Company to take any action, such requirement shall be deemed to include an
undertaking on the part of Seller (prior to Closing) and on the part of Buyer
(after Closing) to cause the Company to take such action.
12.14. Entire Agreement. This Agreement, which is deemed to include
all exhibits, schedules and certificates delivered pursuant to the terms hereof,
embodies the entire agreement of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or
written, whether expressed or implied (collectively, "Prior Inducements"), by
any officer, employee or representative of any party hereto with respect
thereto, including without limitation the Letter of Intent dated December 20,
1996 between Buyer and Seller. Buyer and Seller acknowledge and agree that in
entering into this Agreement neither of them has relied upon any such Prior
Inducements, and each agrees that
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it will not seek to initiate or maintain any suit, action, claim or defense
based upon or arising out of any Prior Inducement.
12.15. Amendment; Waiver. This Agreement may be amended, and any
provision hereof waived, but only in a writing signed by the party against whom
such amendment or waiver is sought to be enforced. The granting of any waiver
with respect to any failure to comply with any provision of this Agreement shall
not operate as a waiver of, or estoppel with respect to, any subsequent or other
failure to comply with any provision of this Agreement. Buyer explicitly waives
the right to seek damages against Seller for the items set forth on Schedule
12.15 to the extent, but only to the extent, set forth thereon.
12.16. Headings. Headings and numbers have been set forth herein for
convenience only and are not to affect the construction or be taken into
consideration in interpreting this Agreement.
122
130
IN WITNESS WHEREOF the parties have duly executed this Agreement as of
the day and year first above written.
BUYER:
MARTIN MARIETTA MATERIALS, INC.
By: /s/ Stephen P. Zelnak, Jr.
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Name: Stephen P. Zelnak, Jr.
Title: Chairman/CEO
SELLER:
CSR AMERICA, INC.
By: /s/ Peter Trimble
------------------------------
Name: Peter Trimble
Title: Vice President