ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is made and entered
into on this the 5th day of September, 2000 between ISG Resources, Inc. ("ISG"),
a Utah corporation (the "Buyer") and Hanson Aggregates West, Inc., a Delaware
corporation (the "Seller").
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer certain assets of, and Buyer desires to assume certain liabilities
of, Seller arising in connection with, Seller's fly ash operations, upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1 DEFINITIONS
When used in this Agreement, the following terms shall have the
following meanings.
1.1 "Assets" shall mean all of the equipment, assets, and rights of
every kind and nature whatsoever, real, personal or mixed, rolling or fixed,
tangible or intangible, owned by Seller and located, based or utilized at the
fly ash operations of the Seller at the following locations:
1. Welsh Power Plant, near Cason, Texas;
2. Rodemacher Power Plant, near Boyce, Louisiana; and
3. Nelson Station Power Plant, near Westlake, Louisiana,
(collectively, the "Plant Sites")and customer lists and contracts owned by
Seller and generated solely by the fly ash operations of the Seller at the Plant
Sites.
1.2 "Assumed Liabilities" shall mean only the liabilities and
obligations that are expressly listed below:
Leases: Liabilities and obligations relating to periods on and after
the Closing Date under the leases listed on Schedule 2.2,
Contracts: Liabilities and obligations relating to periods on or after
the Closing Date under the contracts listed on Schedule 2.3 and under all sales
contracts, quotations and purchase orders arising in the ordinary course of
business pertaining to the Business, and
Reclamation Liabilities: Reclamation liabilities and obligations
arising under the contracts listed on Schedule 2.3 whenever arising.
Other than the foregoing specifically Assumed Liabilities, Assumed
Liabilities does not include any of Seller's current or future liabilities and
obligations (whether absolute, contingent, known or unknown, determinable or not
determinable or otherwise).
1.3 "Liens" shall mean any mortgage, pledge, conditional sales
contract, lien, security interest, right of possession in favor of any third
party, claim, or other encumbrance.
1.4 "Business" shall mean the ongoing fly ash business or enterprise of
Seller operated by or using the Assets.
1.5 "Tax" and "Taxes" shall mean any and all income, excise, franchise
or other taxes and all other charges or fees imposed or collected by any
governmental authority or pursuant to any governmental requirement, and shall
also include any and all penalties, interest, deficiencies, assessments and
other charges with respect thereto.
1.6 "To Seller's Knowledge", or "to its knowledge" and variations of
them when used with respect to Seller shall refer to all matters actually known
to any of Seller's directors, officers, plant managers, legal counsel and
persons to whom written notice to the Seller is required pursuant to any
agreement pertaining to the operation of the Business.
2 PURCHASE AND SALE OF ASSETS
2.1 Purchase of Assets. At the Closing, pursuant to the terms and
conditions set forth in this Agreement, Buyer agrees to purchase and accept
delivery of the Assets, and assume the Assumed Liabilities and Seller agrees to
sell, convey, assign, transfer and deliver the Assets, and assign the Assumed
Liabilities to the Buyer.
2.2 Material Leases. Schedule 2.2 lists all leases, written or oral
(and each and every amendment, modification or supplement thereto) affecting any
of the real and/or personal property used by Seller in the operation of the
Business, including but not limited to equipment and fleet leases (the "Material
Leases"). Copies of all written Material Leases, and a detailed description of
all oral Material Leases, have been provided to Buyer. Except as set forth in
Schedule 2.2, Seller is in possession of all of the rights identified in the
Material Leases as the rights of Seller.
2.3 Material Contracts. Schedule 2.3 lists each written or oral
contract (and each and every amendment, modification or supplement to any of
them) to which Seller is a party or bound or to which either Seller or any Asset
is subject, that is applicable to the Business, and that is also described by
any of the following:
2.3.1 individually exceeds $50,000;
2.3.2 involves any matter not in the ordinary course of
business;
2.3.3 restricts the right of Seller to compete, whether by
restricting territories, customers or otherwise, in any territory in which the
Seller has conducted business;
2.3.4 requires Seller to purchase its requirements for any
goods or services from any one or more parties;
2.3.5 grants terms to a customer that are substantially more
favorable than those generally available to other customers;
2.3.6 provides, special arrangements, whether providing for
discounts, incentives awards or otherwise that extend past September 1, 2000;
2.3.7 constitutes performance bonds, letters of credit or
other security arrangements required by any other contract or Material Lease.
2.3.8 relates to participation of the Business in a
cooperative, partnership or joint venture;
2.3.9 imposes confidentiality requirements in the operation of
the Business;
2.3.10 is for political or charitable contributions; and/or
2.3.11 grants a power of attorney in association with the
operation of the Business.
All contracts disclosed or to be disclosed on Schedule 2.3 are "Material
Contracts". All oral Material Contracts are described on Schedule 2.3 and copies
of all written Material Contracts have been delivered to Buyer. Notwithstanding
the foregoing, Schedule 2.3 does not list (and the phrase "Material Contracts"
does not include) Material Leases disclosed pursuant to this Agreement.
2.4 Intellectual Property Rights. Schedule 2.4 sets forth a complete
list of all patents, trademarks, copyrights, trade names, license(s), franchises
or other intellectual property right of any nature whatsoever owned by or
granted to Seller for use solely in the Business and which are included in the
Assets (collectively, the "Intellectual Property Rights").
2.6 Assignment of Seller's Leases and Contracts. Seller shall have all
contracts, agreements, leases and commitments of Seller which are part of the
Assets or the Assumed Liabilities (including but not limited to Material Leases,
Material Contracts, Intellectual Property Rights, transportation contracts,
supply contracts), assigned or sub-licensed to Buyer at or prior to the Closing.
3 PURCHASE PRICE
3.1 Purchase Price. The Seller will sell the Assets to the Buyer for
the sum of two million one hundred thousand dollars ($2,100,000.00) (the
"Purchase Price").
3.2 Intentionally Blank.
3.3 Proration of Taxes and Fees.
3.3.1 Ad Valorem Taxes. All ad valorem and other property
taxes (real and personal) levied on or charged against the Assets in the year of
the Closing Date shall be prorated between Seller and Buyer as herein provided.
If the ad valorem or other property tax rates applicable to the Assets for the
tax year during which the Closing occurs have not been fixed as of the Closing
Date, the apportionment between Seller and Buyer shall be based upon the ad
valorem or other applicable property tax rate(s) against the Assets for the
immediately preceding tax year; provided, however, that Seller and Buyer shall
make an adjustment to such proration when the actual taxes or assessments for
the Assets for the year of the Closing Date become available, such obligation to
survive Closing.
3.3.2 Transfer Taxes. The expense of any sales, use, transfer
or other similar tax imposed as a result of the consummation of the transactions
contemplated by this Agreement, including the expense of all license and/or
transfer fees associated with the trucks, other rolling stock or equipment
purchased (and/or debt assumed) hereunder shall be prorated between Seller and
Buyer at Closing.
3.3.3 In the event that the above prorations cannot be
completed at closing, then the parties hereto will diligently work to accomplish
same as soon as possible after the Closing.
3.4 Intentionally Blank.
3.5 Purchase Price Allocation. The Purchase Price shall be allocated as
set forth on Exhibit "A". The parties covenant and agree with each other that
this allocation was arrived at by arm's-length negotiation and that each party
hereto will not take a position on any income tax return, before any
governmental agency charged with the collection of any income tax or in any
judicial proceeding that is in any manner inconsistent with the terms of this
Section without the written consent of the other party to this Agreement.
4 REAL PROPERTY
4.1 Identification of the Real Properties. Schedule 4.1 sets forth the
location of each tract of immovable property included in the Assets, the use of
the facility(ies) thereon, the name of the owner or the names of the lessor and
the lessee, the approximate square footage of improvements and acreage of land
(the "Real Properties"). Seller has delivered to Buyer (i) a copy of each deed
or lease by which Seller acquired title to or its interest in the Real
Properties, or the right to use the Real Properties, (ii) a copy of all title
abstracts, reports and title insurance policies Seller has for such real estate,
(iii) a copy of the most recent survey or surveys Seller has for such Real
Properties, (iv) a copy of all certificates of occupancy granted to Seller for
the improvements on such Real Properties and a copy of any variance granted to
Seller with respect to any such Real Properties pursuant to applicable zoning
laws or ordinances.
5 CLOSING
The closing of the purchase and sale of the Assets ("Closing") shall
take place at the office of Worsham, Forsythe & Wooldridge, LLP, Energy Plaza,
30th Floor, 1601 Bryan Street, Dallas, Texas, or at such other place as the
parties may mutually agree, on the first day following the receipt of the
consents required pursuant to Section 13.2 hereof (the "Closing Date") or such
other date as the parties shall agree upon in writing.
6 DOCUMENTS TO BE DELIVERED BY SELLER TO BUYER
At the Closing, Seller will deliver the following to Buyer.
6.1 Intentionally Blank.
6.2 Bill of Sale. A Bill of Sale conveying, assigning, transferring,
good and marketable title to all the Assets substantially in the form attached
hereto as Exhibit "B".
6.3 Specific Bills of Sale. Such specific bills of sale, conveyance,
assignment, transfer, and delivery of such of the Assets as Buyer shall
reasonably request.
6.4 Assignments of Leases and Contracts. Assignment documents assigning
Seller's rights and obligations in all Material Leases and Material Contracts to
Buyer effective as of the Closing substantially in the form attached hereto as
Exhibits "C,D,E,F,G, H and I ".
6.5 Books and Records. All of Seller's books, records, and other data
located at the Plant Sites plus all current records relating solely to the
Business maintained by Alan Ferguson's office, including but not limited to:
sales contracts, quotations, marketing plans and customer lists.
6.6 Performance Certificate. An officer's certificate of Seller in the
form attached hereto as Exhibit " J " certifying as to the accuracy of Seller's
representations and warranties at and as of the Closing Date and that Seller has
performed and complied with all of the terms, provisions, and conditions to be
performed and complied with by Seller at or before the Closing.
6.7 Other Certificates. Such other certificates and documents,
including appropriate Resolutions of the Board of Directors of Seller
authorizing the transaction contemplated in this Agreement, as Buyer or their
counsel may reasonably request.
7 DOCUMENTS TO BE DELIVERED BY BUYER TO SELLER
At the Closing, Buyer will deliver the following to Seller:
7.1 Purchase Price. The Purchase Price by transfer of immediately
available funds to such account at such U.S. bank as Seller shall direct at
least one business day prior to the Closing Date.
7.2 Performance Certificate. A certificate of Buyer in the form
attached hereto as Exhibit " K " certifying as to the accuracy of Buyer's
representations and warranties at and as of the Closing Date and that Buyer has
performed and complied with all of the terms, provisions, and conditions to be
performed and complied with by Buyer at or before the Closing.
7.3 Other Certificates. Such other certificates and documents as Seller
or their counsel may reasonably request.
8 REPRESENTATIONS AND WARRANTIES BY SELLER
Seller represents and warrants to Buyer as follows:
8.1 Organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the power and authority to carry on its business as now being conducted and to
own and operate the properties and assets now owned and being operated by
Seller. Seller is duly qualified or licensed to do business and is in good
standing as a corporation in the jurisdictions in which the Seller is conducting
the Business.
8.2 Authority. Seller has the power and authority to enter into this
Agreement and to carry out its obligations hereunder. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Board of Directors of
Seller, and no other action on the part of Seller is necessary to authorize the
execution and delivery of this Agreement or the performance of any of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered on behalf of Seller and when executed and delivered on behalf of
Seller will be, a legal, valid and binding obligation of Seller enforceable
against Seller in accordance with its terms.
8.3 No Conflicts. Except as set forth in Schedule 8.3, neither the
execution, delivery or performance of this Agreement nor consummation of any of
the transactions provided for in this Agreement (i) will violate or conflict
with the Certificate of Incorporation of Seller, or (ii) will result in any
breach of or default under any provision of any contract or agreement of any
kind to which Seller or the Business is a party or by which Seller or the
Business is bound or to which any property or asset of any of them is subject,
(iii) is prohibited by or requires Seller or the Business to obtain or make any
consent, authorization, approval, registration or filing under any statute, law,
ordinance, regulation, rule, judgment, decree or order of any court or
governmental agency, board, bureau, body, department or authority, or of any
other person, (iv) will cause any acceleration of maturity of any note,
instrument, or other obligation of Seller or the Business is a party or by which
Seller or the Business is bound or with respect to which Seller or the Business
is an obligor or guarantor or (v) will result in the creation or imposition of
any lien, claim, charge, restriction, equity or encumbrance of any kind
whatsoever upon or give to any other person any interest or right (including any
right of termination or cancellation) in or with respect to any of the
properties, assets, businesses, agreements or contracts of Seller, the Business
or the Assets.
8.4 Internal Financial Statements.
8.4.1 Seller has delivered to Buyer copies of the unaudited
internal operating income statements of Seller related to the Assets, and the
Business as of December 31, 1997,1998 and 1999, along with a detailed list of
the Assets as of July 31, 2000. Said unaudited internal operating income
statements and the detailed list of Assets are referred to as the "Internal
Financial Statements".
8.4.2 The Internal Financial Statements are complete and
correct and fairly and accurately present the operating income and the Assets of
the Business as and at the respective dates thereof in conformity with (a)
Seller's books and records; (b) are without any change except as to which Seller
believed reasonably necessary to present the stated information; and (c) to
Seller's knowledge, fairly represent the operating income and the Assets of the
Business on a basis consistent with that of the preceding periods. Buyer shall
have the right to audit such Internal Financial Statements and Seller will
cooperate in any such audit at Buyer's expense.
8.5 No Changes. Except as set forth in Schedule 8.5, since July 31,
2000, Seller has not:
8.5.1 had any material change in its condition (financial or
otherwise), operations (present or prospective), business (present or
prospective), properties, assets, or liabilities, relating to or affecting the
Business, other than changes in the ordinary course of business, none of which
has been materially adverse;
8.5.2 suffered any damage, destruction or loss of physical
property (whether or not covered by insurance) materially affecting the Assets
or the condition (financial or otherwise) or operations (present or prospective)
of the Business;
8.5.3 incurred or agreed to incur any indebtedness that is an
Assumed Liability nor mortgaged, pledged or subjected to any charge, lien, claim
or encumbrance, or agreed to mortgage, pledge or subject to any charge, lien,
claim or encumbrance, any of the Assets;
8.5.4 suffered any substantial loss or waived any substantial
right, relating to or affecting the Assets;
8.5.5 sold, transferred or otherwise disposed of, or agreed to
sell, transfer or otherwise dispose of, any portion of (or any interest in) any
of the assets or property of Seller used in the Business (other than in the
ordinary course of business);
8.5.6 increased, nor agreed to increase, the compensation or
bonuses or special compensation of any kind of any employees of the Business
over the rate being paid to them on July 31, 2000, other than normal merit
and/or cost-of-living increases pursuant to customary arrangements consistently
followed;
8.5.7 lost any major customer (one whose orders are
significant to the continuing operation of the Business) nor had any material
order canceled (other than in the normal course of business or as permitted
under the purchase order) nor knows of any threatened cancellation of any
material order, which is part of the Assumed Liabilities;
8.5.8 made or permitted any material amendment or termination
of any Contract or Lease which is an Assumed Liability, other than in the
ordinary course of business;
8.5.9 had any resignation or termination of employment of any
of its key employees nor knows of any impending or threatened resignation(s) or
termination(s) of employment that would have a material adverse effect on the
operations (present or prospective) of the Business as conducted by Seller;
8.5.10 had any labor trouble, strike nor work stoppage nor
knows of any impending or threatened labor trouble, strike or work stoppage, nor
aware of any pending NLRB election or union organizing activities by the
employees of the Business which would affect the Business, or the use of the
Assets therefor;
8.5.11 experienced any shortage or difficulty in obtaining any
raw material, necessary for the operation of the Business;
8.5.12 made any material change in its accounting methods or
practices with respect to the Business or any other material change in Seller's
manner of conducting the Business;
8.5.13 entered into any transaction, relating to or affecting
the Business and the use of the Assets therefor, not in the ordinary course of
its business; or
8.5.14 entered into any agreement, or otherwise decided, to
engage in any of the foregoing.
8.6 Title To And Condition Of Assets.
8.6.1 Owned Property. Except as set forth on Schedule 8.6.1,
(a) Seller owns all right, title and interest in and to each of the Assets, (b)
no person has any rights to acquire, lease or use, or any other interest in, any
of the Assets; and (c) none of the Assets is subject to any Lien, restriction,
covenant, lease, rental, required payment or assessment, or adverse charge or
claim.
8.6.2 Real Properties. Except as disclosed on Schedule 8.6.2,
(a) Seller has and possesses the leasehold interest identified on Schedule 2.2;
(b) no Liens or encumbrances on any tract of Real Property has or have
restricted or caused an adverse impact on Seller's operation of the Business
thereon as currently operated by Seller; and (c) Seller has not received any
written notice from any governmental agency, board, bureau, body, department or
authority of any United States or foreign jurisdiction, with respect to Seller's
interest (ownership or leasehold) or use of the Real Properties which has or
would adversely affect Seller's interest or use of such Real Properties or the
operation of the Business thereon as currently operated.
8.6.3 Leases. Each Material Lease listed in Schedule 2.2 is in
full force and effect and is valid in accordance with its terms. Neither Seller
nor any other party is in default in the observance or the performance of any
term or obligation to be performed by it under any Material Lease. No other
person is in default in the observance or the performance of any term or
obligation to be performed by it under any Material Lease with Seller.
8.6.4 Contracts. Each Material Contract listed in Schedule 2.3
is in full force and effect and is valid in accordance with its terms. Neither
Seller nor any other party is in default in the observance or the performance of
any term or obligation to be performed by it under any Material Contract. No
other person is in default in the observance or the performance of any term or
obligation to be performed by it under any Material Contract with Seller. Seller
knows of no bid or contract proposal made by Seller or any of its affiliates
that, if accepted or entered into, might result in a loss to Seller or any
affiliate.
8.6.5 Status. Except as disclosed in Schedule 2.2 with respect
to Material Leases, in Schedule 2.3 with respect to Material Contracts (and to
those leases and contracts included in the Assumed Liabilities but not required
to be disclosed on the respective Schedule, and in Schedule 2.4 with respect to
Intellectual Property Rights (a) Seller has not assigned any of its rights or
obligations under and is not otherwise restricted for any reason from enjoying
the full benefits under) any of the Material Leases, Material Contracts, other
leases and contracts included in the Assumed Liabilities, and the Intellectual
Property Licenses; (b) no act or event has occurred which, with notice or lapse
of time or both or other action required to be taken by the other party as a
prerequisite to exercising its rights, would constitute a breach or default
under any of them; (c) Seller has had no notice that any party to any of them is
subject to any bankruptcy, insolvency or other similar proceeding; (d) there is
no outstanding notice of cancellation or termination in connection with any of
them; (e) each of them is valid in accordance with its terms; (f) to the Best
Knowledge of Seller, neither the execution, delivery or performance of them
violated, violates or will violate any applicable law; (g) neither Seller, nor
to Seller's knowledge, any other party currently contemplates, any termination,
amendment or change to any of them; (h) none of them requires Seller to maintain
any performance bond, letter of credit or other security arrangement; and (i) to
Seller's knowledge, none of them has, or is reasonably expected to have during
its term, an adverse effect on the Assets, the Assumed Liabilities or any aspect
of either of the Business.
8.7 Intellectual Property Rights.
8.7.1 Each of the Intellectual Property Rights listed on
Schedule 2.4 have been validly issued and are owned by or licensed to Seller or
the Business, and Seller has the right to use all such Intellectual Property
Rights in the Business.
8.7.2 Except as set forth in Schedule 8.7, the Intellectual
Property Rights include all patents, copyrights, know-how, trade secrets, and
other proprietary rights necessary to conduct the operations of the Business.
Seller knows of no claim, or any basis of any claim, that Seller has infringed
any patent, copyright, trademark, trade name, know-how, trade secret or other
proprietary right of any other person. To Seller's knowledge, there are no
potential claim of infringement of any patent, copyright, trademark, trade name,
know-how, trade secret or other proprietary right of any other person that has
not been asserted but that, if asserted, would adversely affect the operation of
the Business and/or the Assets.
8.8 Existence of Certain Leases or Contracts. Except as identified as
Schedule 2.2 and Schedule 2.3, in the conduct of the Business (or as it may
relate or apply to the Assets being purchased pursuant to this Agreement) Seller
is not a party to any written or oral:
8.8.1 contract with any labor union;
8.8.2 employment or consulting contract or other contract for
services;
8.8.3 lease whether as lessor or lessee with respect to any
property, immovable or personal;
8.8.4 loan agreement or instrument relating to any debt;
8.8.5 contract of purchase or sale involving more than
$50,000.00 ;
8.8.6 contract with any agent, dealer or distributor involving
more than $50,000.00;
8.8.7 standby letter of credit, guarantee or performance bond;
8.8.8 contract or agreement restricting the ability of any
person from freely engaging in any business or competing anywhere in the world;
8.8.9 contract not made in the ordinary course of business
involving more than $50,000.00;
8.8.10 other contract, except insubstantial contracts for
supplies or services not involving more than $50,000.00 and which can be
terminated within one year without cost;
8.8.11 any material contract with any governmental authority;
or
8.8.12 any contract that materially and adversely affects its
condition (financial or otherwise), operations (present or prospective),
business (present or prospective), properties, assets or liabilities.
8.9 Taxes. Except as contemplated by Schedule 8.11 [Compliance with
Laws], Seller has no liability with respect to Taxes that would affect in any
way whatsoever Buyer's right, title and interest in or Buyer's right to use and
enjoy (free and clear of any Lien or restriction) any Asset, any Assumed
Liability or any aspect of the Business acquired by Buyer pursuant to this
Agreement.
8.10 Litigation. Except as set forth in Schedule 8.10, there are no
actions, suits, proceedings or investigations, either at law or in equity, or
before any commission or other administrative authority in any U.S. or foreign
jurisdiction, of any kind now pending or threatened or proposed in any manner,
or any circumstances which should or could reasonably form the basis of any such
action, suit, proceeding or investigation, involving Seller or any of its
affiliates or any of its properties or assets that (i) if asserted and decided
adversely, could adversely affect the ownership or operation of the Assets as
currently operated, or (ii) questions the validity of this Agreement, or (iii)
seeks to delay, prohibit or restrict in any manner any action taken or
contemplated to be taken by Seller under this Agreement. Except as set forth in
Schedule 8.10, there is no arbitration proceeding pending or threatened or
proposed in any manner under any collective bargaining agreement or other
agreement or otherwise which affects the Assets or the Business. Neither Seller,
nor its affiliates, properties or other assets is subject to any judicial or
administrative judgment, order, decree or restraint which would affect the
Assets or the operation thereof in the Business.
8.11 Compliance With Laws.
8.11.1 To Seller's Knowledge, (i) Seller has complied with and
is in compliance with all federal, state, local and foreign statutes, laws,
ordinances, regulations, rules, permits, judgments, orders or decrees applicable
in any manner to the Assets or any of the respective properties, assets,
operations and businesses related thereto, and (ii) there does not exist any
basis for any claim of default under or violation of any such statute, law,
ordinance, regulation, rule, judgment, order or decree except such defaults or
violations, if any, that in the aggregate do not and will not adversely affect
the property or operation of the Assets.
8.11.2 To Seller's Knowledge, Seller has not received any
opinion or memorandum or legal advice from any legal counsel to the effect that
Seller is exposed to any liability or disadvantage that is or may be material
to, or have an adverse impact on, the Business.
8.11.3 To Seller's Knowledge. Seller, insofar as the Business
is concerned, is in compliance with (i) all applicable requirements of the
Occupational Safety and Health Act of 1970 within the United States and
comparable workplace-safety laws of all other jurisdictions and all rules,
regulations and orders thereunder and (ii) all applicable laws and related rules
and regulations of all United States and foreign jurisdictions affecting labor
union activities, civil rights or employment, including without limitation, in
the United States, the Civil Rights Act of 1964, the Age Discrimination in
Employment Act of 1967, the Equal Employment Opportunity Act of 1972, the
Employee Retirement Income Security Act of 1974, the Equal Pay Act and the
National Labor Relations Act, the Fair Labor Standards Act.
8.12 Environmental Matters.
8.12.1 To Seller's Knowledge, Seller has complied with and is
in compliance with all federal, state, local and foreign statutes, laws,
ordinances, regulations, rules, permits, judgments, orders and decrees
applicable, in any manner, to the ownership and/or operation of the Assets in
the Business relating to environmental protection including, without limitation,
standards relating to air, water, land and the generation, storage,
transportation, treatment or disposal of solid wastes and hazardous wastes.
8.12.2 To Seller's Knowledge, Seller has obtained and adhered
to all necessary permits and other approvals necessary to operate the Assets in
the Business as currently conducted by Seller.
8.12.3 To Seller's knowledge, there is no location on any of
the Real Property or the Business where hazardous wastes or other harmful
substances have entered or are likely to enter into the soil or groundwater.
8.12.4 Seller knows of no on-site or off-site location to
which Seller or the Business have transported hazardous wastes or arranged for
the transportation of hazardous wastes in which such site is the subject of any
federal, state, local or foreign enforcement action or any other investigation
which could lead to any claim against Seller, the Business or Buyer for any
cleanup cost, remedial work, damage to natural resources or personal injury,
including, but not limited to, claims under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980.
8.13 Governmental Authorizations And Regulations. Schedule 8.13 lists
all licenses, franchises, permits and other governmental authorizations held by
Seller material to the Assets in the operation of the Business. To Seller's
knowledge, all such licenses, franchises, permits and other governmental
authorizations are valid, and Seller has received no notice that any
governmental authority intends to cancel, terminate or fail to renew any such
license, franchise, permit or other governmental authorization. To Seller's
knowledge, Seller holds all licenses, franchises, permits and other governmental
authorizations the absence of any of which could have a material adverse effect
on the operation of the Assets in the Business. To Seller's knowledge, except as
set forth in Schedule 8.13, the Business is being conducted, and the Assets
relating thereto are owned or are being used by Seller and/or the Business, in
compliance with all statutes, laws, ordinances, regulations, rules or permits of
any governmental entity or any judgments, orders or decrees. To Seller's
Knowledge, all products manufactured or sold by Seller or the Business utilizing
any of the Assets comply in all material respects with all statutes, laws,
ordinances, regulations, and rules and criteria governing the design,
manufacture, and intended use thereof.
8.14 No Employee Benefit Plans Liability.
8.14.1 Neither Seller nor any "ERISA Affiliate" (as defined
below) has any liability, or is subject to any Lien, restriction or other
adverse right relating to any "employee benefit plan" (as the term is defined in
the Employee Retirement Income Security Act of 1974 as amended ("ERISA")) or any
other compensation, stock option, restricted stock, bonus, incentive, severance,
fringe benefit or retirement plan of any kind whatsoever, whether formal or
informal, not included in the foregoing or providing benefits for, or for the
welfare of, any or all of the current or former employees, agent, officers,
directors, or independent contractors of Seller or any ERISA Affiliate or their
beneficiaries or dependents (collectively the "Employee Plans") that would
effect in any manner whatsoever Buyer's right, title or interest in, or Buyer's
right to use or enjoy (free and clear of any Lien or restriction), any Asset,
any Assumed Liability or aspect of the Business acquired by Buyer pursuant to
this Agreement or would result in the assumption by or imposition on Buyer of
any liability other than liabilities expressly included in the Assumed
Liabilities. "ERISA Affiliate" means each trade or business (whether or not
incorporated) that together with Seller is treated as a single employer pursuant
to IRC ss.ss. 414(b), (c), (m) or (o). Neither Seller nor any ERISA Affiliate
has ever maintained, contributed to or otherwise participated in, or had any
liability or obligation with respect to, any Employee Plan covering employees of
the Business whose employment is subject to a collective bargaining agreement.
8.14.2 Seller has filed or caused to be filed on a timely
basis every return, report, statement, notice, declaration and other document
required by any government agency, federal, state and local (including, without
limitation, the Internal Revenue Service, the Department of Labor, the Pension
Benefit Guaranty Corporation, and the Securities and Exchange Commission) with
respect to each Employee Plan sponsored or maintained by Seller relating to the
Business. Seller is in substantial compliance with all disclosures to employees
and beneficiaries required under ERISA, including, without limitation, timely
distribution of summary plan descriptions and summary annual reports.
8.15 Certain Transactions. Except as set forth in Schedule 8.15, there
is no transaction, and no transaction is now proposed, related to the Assets, to
which Seller was or is to be a party and in which any director or officer of
Seller or any person owning of record or beneficially more than 5 percent of the
outstanding capital stock (or other incident of ownership) of any class of
Seller or any affiliate or any associate of any such person had or has a direct
or indirect material interest.
8.16 Product Warranties. Except as set forth in Schedule 8.16: (i)
there exist no product warranty(ies) with respect to any product that is or was
manufactured or sold by Seller in the Business; (ii) Seller has not received any
notice of any claim based on any such product warranty(ies); and (iii) Seller
has no knowledge or has no reasonable ground to know of any claim (actual or
threatened) based on any product warranty(ies).
8.17 Insurance. Schedule 8.17 contains a list of all claims made under
any insurance policies covering the Seller since January 1, 1996 which are
related in any manner to the Business and/or the Assets. The Seller has not
received notice that any insurer under any policy referred to in this Section is
denying liability with respect to a claim thereunder or defending under a
reservation of rights clause. Since January 1, 1996, the Seller has maintained,
in light of the Business and its location, operations, employees and the Assets,
at all times, without interruption appropriate insurance, in scope and amount of
coverages.
8.18 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Seller directly with
Buyer and without the intervention of any other person and in such manner as not
to give rise to any valid claim against any of the parties for any finder's fee,
brokerage commission or like payment.
8.19 No Untrue Statements. No statement by Seller contained in this
Agreement and no written statement contained in any certificate or other
document required to be furnished by Seller, or any officer, employee, counsel
or other agent of Seller, to Buyer pursuant to or in connection with this
Agreement contains or will contain any untrue statement of a material fact, or
omits or will omit to state a material fact necessary in order to make the
statements therein contained not misleading. To Seller's knowledge, there is no
fact that affects, or in the future might reasonably be expected to affect,
adversely, the condition (financial or otherwise) or operations (present or
prospective) of the Business in any material respect that is not set forth in
this Agreement or the Schedules.
9 REPRESENTATIONS AND WARRANTIES BY BUYER
Buyer represents and warrants to Seller as follows:
9.1 Corporate Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Utah. Buyer
has the corporate power and authority to carry on the business now being
conducted by it and to acquire and own and operate the Assets.
9.2 Authorization Of Agreement. Buyer has the power and authority to
enter into this Agreement and to carry out is obligations hereunder. No other
action on the part of Buyer is necessary to authorize the execution and delivery
of this Agreement or the performance of the transactions contemplated hereby.
This Agreement has been duly executed and delivered on behalf of Buyer and when
executed and delivered on behalf of Buyer will be a legal, valid and binding
obligation of Buyer enforceable against Buyer in accordance with its terms.
9.3 No Violation; No Conflict.Neither the execution, delivery or
performance of this Agreement by Buyer nor the consummation of any of the
transactions provided for in this Agreement (i) will violate or conflict with
any provision of the Certificate of Incorporation or Bylaws of the Buyer or (ii)
will result in any breach of or default under any provision of any contract or
agreement of any kind to which the Buyer are a party or by which Buyer are bound
or to which the properties or assets of the Buyer is subject, or (iii) is
prohibited by or requires Buyer to obtain or make any consent, authorization,
approval, registration or filing under any statute, law, ordinance, regulation
rule, judgment, decree or order of any court or governmental agency, board,
bureau, body, department or authority.
9.4 Litigation. There are no actions, suits, proceedings or
investigations, either at law or in equity, or before any commission or other
administrative authority in any United States or foreign jurisdiction, of any
kind now pending or threatened or proposed in any manner, or any circumstances
which should or could reasonably form the basis of any such action, suit,
proceeding or investigation, involving the Buyer or any of their properties or
assets that (i) questions the validity of this Agreement or (ii) seeks to delay,
prohibit or restrict in any manner any action taken or contemplated to be taken
by the Buyer under this Agreement.
9.5 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by the Buyer directly with
Seller and without the intervention of any other person and in such manner as
not to give rise to any valid claim against any of the parties for a finder's
fee, brokerage commission or like payment.
9.6 No Untrue Statements. No statement by Buyer contained in this
Agreement and no written statement contained in any certificate or other
document required to be furnished by Buyer, or any officer, employee, counsel or
other agent of Buyer, to Seller pursuant to or in connection with this Agreement
contains or will contain any untrue statement of a material fact, or omits or
will omit to state a material fact necessary in order to make the statements
therein contained not misleading.
10 COVENANTS OF SELLER
Seller covenants and agrees with Buyer as follows:
10.1 Access, Information and Documents.
10.1.1 During the period from the date that this Agreement is
executed (the "Signing Date") until the date on which either party provides the
other party with written notice of Termination (the "Termination Date"), Seller
will afford Buyer full and free access to the Assets, and the properties,
contracts, books and records, and all other documents and data related to the
Business and the Assets.
10.1.2 After the execution of this Agreement, Seller will
provide Buyer with access to the employees of the Business. The parties will
mutually agree as to the time and place that Buyer will be given access to the
personnel operating or responsible for the operation of the Business. Any Buyer
personnel entering onto any Seller facility shall adhere to Seller's safety
procedures and shall be accompanied by an employee of Seller.
10.2 Conduct of Business Pending Closing. From the Signing Date until
the Closing, except as consented to by Buyer in writing:
10.2.1 Seller will carry on the Business substantially in the
manner carried on as of the date hereof, and Seller will not engage in any
activity or transaction or make any commitment to purchase or spend other than
in the ordinary course of its business as heretofore conducted;
10.2.2 Seller will not pay or obligate itself to pay, any
compensation, commission or bonus to any director, officer, employee or
independent contractor, relating to or affecting the Assets, except for the
regular compensation and commissions payable to such director, officer, employee
or independent contractor at the rate in effect on the date of this Agreement;
10.2.3 Seller will continue to carry insurance essentially the
same as the existing insurance, relating to or affecting the Business and/or the
Assets, in effect as of the Signing Date of this Agreement;
10.2.4 Seller will use diligent efforts to preserve the
Business and the Assets intact, to keep available to Buyer the services of its
employees and independent contractors and to preserve for Buyer its
relationships with suppliers, licensees, distributors, and customers and others
having business relationships with it;
10.2.5 Seller will not obligate itself to sell or otherwise
dispose of or pledge or otherwise encumber any of the Assets other than in the
ordinary course of business and Seller will maintain each Asset in a condition
at least similar to the condition of such Asset as of the Signing Date, subject
only to ordinary wear and tear;
10.2.6 Seller will not engage in any activity or transaction,
related to the Assets, other than in the ordinary course of its business as
heretofore conducted; and
10.2.7 Seller will not enter into any agreement or other
arrangement to do any of the foregoing.
10.3 Approval by Seller's Governing Body. Seller shall obtain the
approval of this Agreement from its Board of Directors, and shall otherwise use
diligent efforts to cause the approval of this Agreement and the consummation of
the transactions contemplated hereby.
10.4 Consents and Approvals. Seller shall use reasonable diligent
efforts to obtain prior to the Closing all consents, authorizations, and
approvals under all statutes, laws, ordinances, regulations, rules, judgments,
decrees, and orders of any court or governmental agency, board, bureau, body,
department or authority or of any other person required to be obtained by Seller
in connection with the execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated hereby.
10.5 Non-Compliance With Certain Laws. Without limiting the
indemnification rights or obligations under this Agreement: the parties
acknowledge (a) that notices to creditors are not being given under, and no
actions are being taken to comply with, the "Bulk Sales Act" under the Uniform
Commercial Code as in effect in the State of Louisiana and (b) that no waivers
or clearances are being obtained under, and no other actions are being taken to
comply with, state laws, if any, providing for notices or tax or similar
clearances in connection with the sale of assets; and thus, notwithstanding
anything herein to the contrary in this Agreement, Seller shall be fully
responsible for, and shall indemnify Buyer against, all damages, liens, claims,
etc. of any nature whatsoever, which may arise as a result of the parties
failure to comply with such laws.
11 COVENANTS OF BUYER
11.1 Confidential Information. The terms and conditions set forth in
the Confidentiality Agreement between Hanson Building Materials America, Inc.
and the Buyer, dated July 13, 2000 are incorporated herein by reference as fully
as if repeated verbatim herein.
11.2 Consents and Approvals. Buyer shall use reasonably diligent
efforts to obtain prior to the Closing all consents, authorizations and
approvals under all statutes, laws, ordinances, regulations, rules, judgments,
decrees, and orders of any court or governmental agency, board, bureau, body,
department or authority or of any other person required to be obtained by Buyer
in connection with the execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated hereby.
12 CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
The obligations of Seller to sell the Assets is subject to the
fulfillment prior to or at the Closing of the following conditions:
12.1 Purchase Price. The Buyer's payment of the Purchase Price.
12.2 Buyer's Performance. There shall not be any material error,
misstatement or omission in the representations and warranties made by Buyer in
this Agreement; all representations and warranties by Buyer contained in this
Agreement or in any written statement delivered by Buyer to Seller pursuant to
this Agreement shall be true in all material respects at and as of the Closing
as though such representations and warranties were made at and as of said time
(except (i) as contemplated by this Agreement and (ii) to the extent, if any,
Seller shall waive the same); and Buyer shall have performed and complied with
all the terms, provisions, and conditions of this Agreement to be performed and
complied with by Buyer at or before the Closing.
13 CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
The obligation of Buyer to purchase the Assets and assume the Assumed
Liabilities is subject to the fulfillment prior to or at the Closing of the
following conditions:
13.1 Seller's Performance. There shall not be any material error,
misstatement or omission in the representations and warranties made by Seller in
this Agreement; all representations and warranties by Seller contained in this
Agreement or in any written statement delivered by Seller to Buyer pursuant to
this Agreement shall be true at and as of the Closing as though such
representations and warranties were made at and as of said time (except (i) as
contemplated by this Agreement and (ii) to the extent, if any, Buyer shall waive
the same); and Seller shall have performed and complied with all the terms,
provisions and conditions of this Agreement to be performed and complied with by
Seller at or before the Closing.
13.2 Assignment of Contracts. Seller shall have obtained consents from
the owners of the Plant Sites, namely: a) Southwestern Electric Power Company,
b) Central Louisiana Electric Company, Inc., Louisiana Energy and Power
Authority and Lafayette Public Power Authority, c) Gulf States Utilities
Company, to the assignment of such Contracts from Seller to Buyer in the
respective forms attached hereto as Exhibits " D, E and F ". Seller shall have
delivered to Closing such consents fully executed in each case by the consenting
party and by Seller. Seller shall have delivered to Closing executed assignments
from Seller to Buyer of: a) the F&F Ash Line, Inc. and the McConnell & Son, Inc.
trucking agreements in the respective forms attached hereto as Exhibits "G and
H".
13.3 Intentionally Blank.
13.4 Consents and Approvals. Seller and Buyer shall have obtained all
consents, authorization and approvals under all statutes, laws, ordinances,
regulations, rules, judgments, decrees and orders of any court or governmental
agency, board, bureau, body, department or authority or of any other person
required to be obtained by Seller or Buyer, as the case may be, in connection
with the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
13.5 Physical Properties. There shall have occurred no material damage
to or destruction or loss of (whether or not covered by insurance) any of the
Assets.
13.6 Title Insurance. Buyer shall have obtained, at Buyer's expense, a
policy or policies of title insurance in form satisfactory to them, insuring in
amounts deemed satisfactory by Buyer, fee simple interests in each of the Real
Properties.
13.7 Employment Matters. Buyer shall have been allowed to make
employment offers to certain employees of Seller who are currently, or at any
time after January 1, 2000 were, responsible for the operation of the Assets
and/or the Business. Seller shall terminate all employees of Seller who are
based at the Plant Sites in connection with the Closing, with the exception of
Willie Brown. Seller will be responsible for any and all benefits accrued prior
to the date of such terminations with respect to such terminated employees and
prior to the date of Closing with respect to Willie Brown. Seller and Buyer will
enter into a consulting agreement pursuant to which Seller will provide to
Buyer, to the extent available, the services of Willie Brown in the form of
Exhibit " L "attached hereto at Closing.
14 TERMINATION
This Agreement may be terminated as follows:
14.1 Termination by Buyer. Buyer may, without liability to Seller,
terminate this Agreement by notice to Seller: (i) at any time prior to the
Closing if default shall be made by Seller in the observance or in the due and
timely performance of any of the terms hereof to be performed by Seller that
cannot be cured at or prior to the Closing, or if the consents required pursuant
to 13.2 have not been obtained within fifteen (15) days from the date hereof; or
(ii) at the Closing if any of the conditions precedent to the performance of
Buyer's obligations at the Closing shall not have been fulfilled.
14.2 Effect of Termination.
14.2.1 In the event that this Agreement is terminated as set
forth above, this Agreement shall no longer be of any force or effect and there
shall be no liability on the part of any party or its respective directors,
officers, shareholders, employees and/or agent, except that (a) no termination
shall prejudice any claim either party may have under this Agreement that arises
prior to the effective date of such termination; and (b) termination of this
Agreement shall not terminate or otherwise affect the rights and obligations set
forth in Sections 11.1 [Confidential Information] and 17.3 [Expenses], which
shall survive termination as independent obligations.
14.2.2 If this Agreement shall be terminated, each party will:
(i) redeliver all documents, work papers, and other materials of any other party
relating to the transactions contemplated hereby, whether so obtained before or
after the execution of this Agreement, to the party furnishing the same; and
(ii) destroy all documents, work papers, and other materials developed by its
accountants, agents, and employees in connection with the transactions
contemplated hereby which embody proprietary information or trade secrets
furnished by any party hereto or deliver such documents, work papers, and other
materials to the party furnishing the same or excise such information or secrets
therefrom. In such event, all information received by a party hereto with
respect to the business of another party or any of its subsidiaries or
affiliates (other than information which is a matter of public knowledge or
which has heretofore been or is hereafter published in any publication for
public distribution or filed public information with any governmental authority)
shall not at any time be used for personal advantage or disclosed by such party
to any third person to the detriment of the party furnishing such information or
any of its subsidiaries or affiliates.
15 SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
15.1 Survival of Representations and Warranties. All statements
contained in any certificate or other instrument delivered by or on behalf of
Seller and/or Buyer, pursuant to this Agreement shall be deemed representations
and warranties hereunder by the party delivering such certificate or instrument.
All representations, warranties, and agreements made by Seller and/or Buyer in
this Agreement or pursuant hereto shall survive the Closing a) for the period of
the applicable statute of limitations in regard to title and taxes, b) for three
(3) years in regard to environmental matters, and c) for eighteen (18) months in
regard to all other matters.
15.2 Indemnification.
15.2.1 Seller's Indemnification. Seller will indemnify Buyer
and its stockholders, officers, directors, employees, agents and affiliates of
each of them in respect of, and hold each of them harmless from and against, any
and all liability damages, fines, fees, penalties, losses and expenses,
including without limitation, interest, reasonable expenses of investigation,
court costs, reasonable fees and expenses of attorneys, etc. (hereafter
"Losses") suffered, incurred or sustained by any of them or to which any of them
becomes subject, to the extent resulting from, arising out of relating to any
misrepresentation or breach of warranty or nonfulfillment of or failure to
perform any covenant or agreement on the part of Seller contained in this
Agreement (including, without limitation, any certificate delivered in
connection herewith or therewith).
15.2.2 Buyer's Indemnification. Buyer will indemnify Seller
and its stockholders, officers, directors, employees, agents and affiliates of
each of them in respect of, and hold each of them harmless from and against, any
and all Losses suffered, incurred or sustained by them or to which they become
subject, to the extent resulting from, arising out of or relating to any
misrepresentation or breach of warranty or nonfulfillment of or failure to
perform any covenant or agreement on the part of Buyer, or either of them,
contained in this Agreement (including, without limitation, any certificate
delivered in connection herewith or therewith).
15.3 Deductible and Cap on Seller's Indemnification. No party shall be
required to indemnify another party unless and only to the extent that the
aggregate amount of the agreed to or adjusted indemnification claims against
such party exceeds $50,000. Notwithstanding any language contained in this
Agreement to the contrary, the Seller shall not be required to indemnify Buyer
hereunder to the extent that the aggregate amount of the agreed to or adjusted
indemnification claims against Seller exceeds fifty percent (50%) of the
Purchase Price.
15.4 Procedure for Indemnification Claims. All claims for
indemnification by any party (the "Indemnified Party") will be asserted and
resolved as follows:
15.4.1 In order for an Indemnified Party to be entitled to any
indemnification provided for herein in respect of, arising out of or involving a
claim or demand made by any Person not a party to this Agreement against the
Indemnified Party (a "Third Party Claim"), the Indemnified Party shall deliver a
notice (a "Claim Notice") to the other party (the "Indemnifying Party") promptly
after receipt by such Indemnified Party of written notice of the Third Party
Claim, but in no event after the expiration of the applicable statute of
limitations period. Such notice shall be given in accordance with the notice
provisions set forth in Section 17.5 [Notice] hereof.
15.4.2 If a Third Party Claim is made against an Indemnified
Party, the Indemnifying Party shall be entitled to participate in the defense
thereof and, if it so chooses, to assume the defense thereof with counsel
selected by the Indemnifying Party, which counsel must be reasonably
satisfactory to the Indemnified Party. Should the Indemnifying Party so elect to
assume the defense of a Third Party Claim, the Indemnifying Party shall not be
liable to the Indemnified Party for legal expenses subsequently incurred by the
Indemnified Party in connection with the defense thereof, but shall continue to
pay for any expenses of investigation or any Loss suffered. If the Indemnifying
Party assumes such defense, the Indemnified Party shall have the right to
participate in the defense thereof and to employ counsel, at its own expense,
separate from the counsel employed by the Indemnifying Party. If (I) the
Indemnifying Party shall not assume the defense of a Third Party claim with
counsel satisfactory to the Indemnified Party within five business days of any
Claim Notice, or (ii) legal counsel for the Indemnified Party notifies the
Indemnifying Party that there are or may be legal defenses available to the
Indemnifying Party or to other Indemnified Parties which are different from or
additional to those available to the Indemnified Party, which, if the
Indemnified Party and the Indemnifying Party were to be represented by the same
counsel, would constitute a conflict of interest for such counsel or prejudice
prosecution of the defenses available to such Indemnified Party, or (iii) if the
Indemnifying Party shall assume the defense of a Third Party Claim and fail to
diligently prosecute such defense, then in each such case the Indemnified Party,
by notice to the Indemnifying Party, may employ its own counsel and control the
defense of the Third Party Claim and the Indemnifying Party shall be liable for
the reasonable fees, charges and disbursements of counsel employed by the
Indemnified Party, and the Indemnified Party shall be promptly reimbursed for
any such fees, charges and disbursements, as and when incurred. Whether the
Indemnifying Party or the Indemnified Party control the defense of any Third
Party Claim, the parties hereto shall cooperate in the defense thereof. Such
cooperation shall include the retention and provision to the counsel of the
controlling party of records and information which are reasonably relevant to
such Third Party Claim, and making employees available on a mutually convenient
basis to provide additional information and explanation or any material provided
hereunder. The Indemnifying Party shall have the right to settle, compromise or
discharge a Third Party Claim (other than any such Third Party Claim in which
criminal conduct is alleged) without the Indemnified Party's consent if such
settlement, compromise or discharge (I) constitutes a complete and unconditional
discharge and release of the Indemnified Party, and (ii) provides for no relief
other than the payment of monetary damage and such monetary damages are paid in
full by the Indemnifying Party.
15.4.3 In the event any Indemnified Party should have a claim
under the provisions of this Section against any Indemnifying Party that does
not involve a Third Party Claim, the Indemnified Party shall promptly deliver an
Indemnity Notice to the Indemnifying Party. The failure by any Indemnified Party
to give the Indemnity Notice shall not impair such party's rights hereunder
except to the extent that an Indemnifying Party demonstrates that it has been
prejudiced thereby. If the Indemnifying Party notifies the Indemnified Party
that it does not dispute the claim described in such Indemnity Notice or fails
to notify the Indemnified Party within the Dispute Period whether the
Indemnifying Party disputes the claim described in such Indemnity Notice, the
Loss in the amount specified in the Indemnity Notice will be conclusively deemed
a liability of the Indemnifying Party and the Indemnifying Party shall pay the
amount of such Loss to the Indemnified Party on demand. If the Indemnifying
Party has timely disputed its liability with respect to such claim, the
Indemnifying Party and the Indemnified Party will proceed in good faith to
negotiate a resolution of such dispute, and if not resolved through negotiations
within thirty (30) days, either party shall be free to avail itself of any
remedy available to it at law or in equity.
16 POST CLOSING MATTERS
16.1 Non-Competition, Non-Solicitation.
16.1.1 For a period of five (5) years from the Closing Date,
the Seller, directly or indirectly through its present or future parent
or subsidiary companies, will not own, manage, operate, or control, any
business or enterprise engaged in the purchase of ash from power plants
for resale to third parties anywhere in the states of Texas or
Louisiana.
16.1.2 For a period of five (5) years from the Closing Date,
the Seller, directly or indirectly through their present or future
parent or subsidiary companies, will not (I) influence any individual
to terminate his or her employment relationship with the Buyer, (ii)
interfere in any other way with the employment, or other relationship,
of any employee of the Buyer or (iii) cause or attempt to cause (x) any
customer or supplier of the Business or the Buyer or (y) any
prospective client, customer or supplier of the Business or the Buyer,
from engaging in business with the Buyer.
16.1.3 The Seller agrees that the Buyer's remedies at law for
any breach or threat of breach by it of any of the provisions of this
Section will be inadequate, and that, in addition to any other remedy
to which Buyer may be entitled at law or in equity, Buyer shall be
entitled to a temporary or permanent injunction or injunctions or
temporary restraining orders or orders to prevent breaches of the
provisions of this Section and to enforce specifically the terms and
provisions hereof, in each case without the need to post any security
or bond. Nothing herein contained shall be construed as prohibiting
Buyer from pursuing, in addition, any other remedies available to it
for such breach or threatened breach. A waiver by the Buyer of any
breach of any provision hereof shall not operate or be construed as a
waiver of a breach of any other provisions of this Agreement or of any
subsequent breach thereof.
16.1.4 The parties hereto consider the restrictions contained
in this Section hereof are a material part of the consideration for the
Assets and are reasonable for the purposes of this transaction, but if
a final judicial determination is made by a court having jurisdiction
that the time or territory or any other restriction contained in this
Section is an unenforceable restriction on the Seller's activities, the
provisions of this Section shall not be rendered void but shall be
deemed amended to apply as to such maximum time and territory and to
such other extent as such court may judicially determine or indicate to
be reasonable. Alternatively, if the court referred to above finds that
any restriction contained in this Section or any remedy provided herein
is unenforceable, and such restriction or remedy cannot be amended so
as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained therein or
the availability of any other remedy. The provisions of this Section
shall in no respect limit or otherwise affect the Seller's obligations
under other agreements with the Buyer.
16.2 Delivery of Possession. At the Closing, title to the Assets and
the Assumed Liabilities shall pass to Buyer. At the Closing, Seller will put
Buyer in full, complete and quiet possession and enjoyment of all of the Assets.
From and after the Closing, the ownership and operation of the Assets, the
Assumed Liabilities and the Business shall be for the account and risk of Buyer.
16.3 Access to Records. After the Closing Date, and until the third
anniversary of the Closing Date, Buyer and Seller shall each permit the other
party to have access to the books and records of the Business and to make copies
of materials relating to the Assets, the Assumed Liabilities and the Business
upon the following conditions: (i) the requesting party's providing notice to
the other party which sets forth a reasonable request for access to the records,
and which states the reason for the request for access, and (ii) the access
being at such times and on such other reasonable conditions appropriate to avoid
interference with the non-requesting party's business operations.
16.4 Mail. From and after the Closing Date, Seller shall promptly
deliver to Buyer (i) the original of any mail or other communication received by
Seller after the Closing Date (A) pertaining to the Assets, the Assumed
Liabilities or the Business, and any payments to which Buyer is entitled, or (B)
addressed to Buyer; (ii) any checks or invoices received by Seller that relate
to Buyer's operation of the Business after the Closing: and (iii) any money
deposited into Seller's lock-box account which relates to Buyer's operation of
the Business after the Closing.
17 MISCELLANEOUS
17.1 Good Faith; Cooperation. The parties shall in good faith undertake
to perform their obligations in this Agreement, to satisfy all condition, and to
cause the transactions contemplated by this Agreement to be carried out promptly
in accordance with its terms. The parties shall cooperate fully with each other
and their representatives in connection with any actions required to be taken as
part of their respective obligations under this Agreement.
17.2 Assurance of Further Action. From time to time after the Closing
and without further consideration from the Buyer, but at the Buyer's expense,
Seller shall execute and deliver, or cause to be executed and delivered, to
Buyer such further instruments of sale, conveyance, assignment, transfer and
delivery and take such other action as Buyer may reasonably submit and request
in order to more effectively sell, convey, assign, transfer and deliver and
reduce to the possession of Buyer any and all of the Assets and consummate the
transactions contemplated hereby.
17.3 Expenses. Each of the parties will pay all of its own legal and
accounting fees and other expenses incurred in the preparation of this Agreement
and the performance of the terms and provisions of this Agreement.
17.4 Waiver. The parties hereto may by written agreement (i) extend the
time for or waive or modify the performance of any of the obligations or other
acts of the parties hereto or (ii) waive any inaccuracies in the representations
and warranties contained in this Agreement or in any document delivered pursuant
to this Agreement.
17.5 Notices. All notices, requests or other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered or
mailed first class certified mail postage prepaid addressed as follows; or to
such other address as may have been furnished in writing to the party giving the
notice by the party to whom notice is to be given.
If to Buyer:
ISG Resources, Inc.
136 East South Temple
Suite 1300
Salt Lake City, Utah 84111
Attn: Brett A. Hickman, Esq.
If to Seller:
Micheal Kane, President
Hanson Aggregates Central, Inc.
11700 Old Katy Road
Suite 1200
Houston, Texas 77079
with a copy to:
George C. Piazza
Division Counsel
Hanson Building Materials America, Inc.
11700 Old Katy Road
Suite 1200
Houston, Texas 77079
and a copy to:
Michael H. Hyer
Vice President and General Counsel
Hanson Building Materials America, Inc.
2680 Bishop Drive, Suite 225
San Ramon, CA 94583
Facsimile: (925) 244-1064
17.6 Entire Agreement; Severability.
17.6.1 This Agreement along with the Exhibits, Schedules and
other documents required herein embodies the entire agreement among the parties
and there have been and are no agreements, representations or warranties, oral
or written among the parties other than those set forth or provided for in this
Agreement. This Agreement may not be modified or changed, in whole or in part,
except by a supplemental agreement signed by each of the parties.
17.6.2 Should any provision of this Agreement be held
unenforceable or invalid under any applicable law, then the parties hereto agree
that such provision shall be deemed modified for purposes of performance of this
Agreement to the extent necessary to render it lawful and enforceable, or if
such a modification is not possible without materially altering the intention of
the parties hereto, then such provision shall be deleted for purposes of
performance of this Agreement. The validity of the remaining provisions of this
Agreement shall not be affected by any such modification or severance,.
17.7 Rights Under This Agreement; Non-assignability.
17.7.1 This Agreement shall bind and inure to the benefit of
the parties hereto and their respective successors and assigns, but shall not be
assignable by any party without the prior written consent of the other parties.
17.7.2 Nothing contained in this Agreement is intended to
confer upon any person, other than the parties to this Agreement and their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
17.8 Governing Law; Venue. This agreement shall be governed by and
construed in accordance with the laws of the State of Texas. The parties shall
bring any action or proceeding for the enforcement of any right, remedy,
obligation or liability arising under or in connection with this agreement
solely in the state or federal courts located in or for Dallas, Texas. Each of
the parties hereby irrevocably consents to the jurisdiction of the foregoing
courts and waives its right to bring any action or proceeding against the other
party except in accordance with the preceding sentence.
17.9 Headings, Sections, Exhibits and Schedules. The headings of the
Sections, paragraphs and subparagraphs of this Agreement are solely for
convenience and reference and shall not limit or otherwise affect the meaning of
any of the terms or provisions of this Agreement. The references herein to
Sections, Exhibits and Schedules, unless otherwise indicated, are references to
sections of and exhibits and schedules to this Agreement.
17.10 No Public Announcements. Prior to the Closing, the parties hereto
shall not issue any press release or make any public statement regarding the
transactions contemplated by this Agreement without obtaining the prior consent
of the other party, which consent shall not be unreasonably withheld.
17.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but which together constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
ISG RESOURCES, INC. HANSON AGGREGATES WEST, INC.
----------------------------- ------------------------------------
By: By:
-------------------------- -------------------------------------
Its: Its:
------------------------- -------------------------------------
<PAGE>
Exhibit A
Purchase Price Allocation
Fixed Assets on Balance Sheet $546,800
Contracts and Goodwill $1,553,200
--------------------------- -----------
Total Purchase Price $2,100,000
<PAGE>
EXHIBIT B
General Warranty Bill of Sale
THIS IS A GENERAL WARRANTY BILL OF SALE, CONVEYANCE, ASSIGNMENT AND
TRANSFER OF ASSETS (this "Instrument") made, executed and delivered by Hanson
Aggregates West, Inc., a _________________ corporation ("Hanson") in favor of
ISG Resources, Inc., a Utah corporation ("ISG") effective as of
_________________, 2000 with respect to the conveyancing by Hanson to ISG of
certain assets of Hanson pursuant to an Asset Purchase Agreement dated
_________________, 2000 (the "Agreement") and by which Hanson and ISG, for good
and valuable consideration (the receipt, adequacy and sufficiency of which are
hereby acknowledged), hereby agree as follows:
1 Bill of Sale and Assignment of Assets. Hanson does hereby absolutely,
unconditionally, and irrevocably sell, convey, assign and transfer unto ISG
forever all right, title and interest, legal and equitable, of Hanson in and to
all the assets and properties of Hanson listed in Attachment A to this
Instrument (the "Property"); to have and to hold all and singular the Property
for its own use and behoof forever.
2 No Representations and Warranties or Indemnification Obligations in this
Instrument. No representations and warranties, or indemnification agreements
with respect to them, are made in this Instrument, but rather are expressly
disclaimed, it being understood and agreed that all of the rights of ISG
vis-a-vis Hanson with respect to the Property are governed by the Agreement.
3 Miscellaneous Provisions.
3.1 Exhibits; Number; Gender; Captions. Each attachment to this
Instrument is hereby incorporated into, and made a part of, this Instrument.
Whenever the context so requires, the singular number shall include the plural
and the plural shall include the singular, and the gender of any pronoun shall
include the other genders. Titles and captions of or in this Instrument are
inserted only as a matter of convenience and for reference and in no way affect
the scope or intent of this Instrument.
3.2 Controlling Law. This Instrument shall be governed by, construed
and enforced in accordance with the laws of the State of Texas except the laws
of that state that would render such choice of laws ineffective.
3.3 Copies. This Instrument may be executed in two or more copies, each
of which shall be deemed an original, and it shall not be necessary in making
proof of this Instrument or its terms to produce or account for more than one of
such copies.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
ISG RESOURCES, INC. HANSON AGGREGATES WEST, INC.
------------------------------ -----------------------------
By: By:
-------------------------- -----------------------------
Its: Its:
------------------------- -----------------------------
Attachment A
Need detailed list of Assets for attachment to this Exhibit
<PAGE>
Exhibit C
ASSIGNMENT AND CONSENT AGREEMENT
This Assignment and Consent Agreement (this "Agreement") is entered
into on this the __ day of ________, 2000 by and between ISG Resources, Inc.
("ISG"), ___________ ("Lessee") and ______________ ("Lessor").
Whereas, on __________, Lessor and Lessee entered into a vehicle lease
agreement in regard to that certain 1998 Ford F150 Supercab 4X2, VIN
1FTZX1765WNB50832 (the "Lease Agreement");
Whereas, pursuant to an Asset Purchase Agreement (the "Asset Purchase
Agreement") between ISG and Hanson Aggregates West, Inc. ("Hanson"), Hanson
proposes to sell its fly ash marketing and disposal services business to ISG;
Whereas, the assignment of the Lease Agreement is an essential element
of the Asset Purchase Agreement.
Now, therefore, in consideration of the premises and covenants
hereinafter contained, and other good and valuable consideration, the receipt,
adequacy, and sufficiency of which are hereby acknowledged, ISG, Lessee and
Lessor agree as follows.
Lessee hereby assigns and transfers to ISG all rights, title, interest
and responsibilities of Lessee in and to the Lease Agreement.
Subject to the terms of the Asset Purchase Agreement, ISG accepts the
assignment and transfer and agrees to perform all responsibilities and
liabilities, from the date of this Agreement, of Lessee pursuant to the Lease
Agreement.
Lessee hereby guarantees to Lessor the full and faithful performance of
the Lease Agreement prior to the date of this Agreement, and agrees that Lessor
has not, and does not, release or waive recourse against Lessee for any breach
or violation of the Lease Agreement prior to the date of this Agreement.
Lessor hereby consents to the assignment of the Lease Agreement from
Lessee to ISG, and confirms that the Lease Agreement is in full force and
effect, according to its terms, and is not in default as of the date of this
Agreement.
In testimony whereof, the parties hereto have executed this Assignment
and Consent Agreement on the date first written above.
Lessor:
--------------------------
--------------------------
Attest: By:
-----------------------
Its:
----------------------
----------------
ISG RESOURCES, INC.
--------------------------
Attest: By:
-----------------------
Its:
----------------------
----------------
Lessee
-------------------
--------------------------
Attest: By:
-----------------------
Its:
----------------------
----------------
<PAGE>
Exhibit D
ASSIGNMENT AND CONSENT AGREEMENT
This Assignment and Consent Agreement (this "Agreement") is entered
into on this the __ day of ________, 2000 by and between ISG Resources, Inc.
("ISG"), Hanson Aggregates West, Inc., a Delaware corporation (previously named
Cornestone C&M, Inc., d/b/a Gifford-Hill & Company, and prior to that, Beazer
West, Inc., and prior to that, Gifford-Hill & Company, Inc.) ("Gifford-Hill"),
Central Louisiana Electric Company, Inc. ("CLECO"), Louisiana Energy and Power
Authority ("LEPA") and Lafayette Public Power Authority ("LPPA").
Whereas, on November 9, 1981 CLECO, LPPA and Gifford-Hill entered into
an Ash Marketing and Disposal Agreement (the "Ash Agreement");
Whereas, on or about Aprl 1, 1994, CLECO LPPA and Gifford-Hill entered
into a first amendment of the Ash Agreement (the "First Amendment");
Whereas, on or about February 7, 1996, CLECO, LEPA, LPPA and
Gifford-Hill entered into a second amendment of the Ash Agreement (the "Second
Amendment");
Whereas, on November 1, 1983 CLECO and Gifford-Hill entered into a
Contract of Lease (the "Contract of Lease");
Whereas, pursuant to an Asset Purchase Agreement (the "Asset Purchase
Agreement") between ISG and Hanson Aggregates West, Inc., a Delaware
corporation, Gifford- Hill proposes to sell its fly ash marketing and disposal
services business to ISG, and the assignment of the Ash Agreement, as amended,
and the Contract of Lease are essential elements of the Asset Purchase
Agreement;
Now, therefore, in consideration of the premises and covenants
hereinafter contained, and other good and valuable consideration, the receipt,
adequacy, and sufficiency of which are hereby acknowledged, ISG, Gifford-Hill,
CLECO, LEPA and LPPA agree as follows.
1 Gifford-Hill hereby assigns and transfers to ISG all rights, title, interest
and responsibilities of Gifford-Hill in and to the Ash Agreement, as amended,
the Contract of Lease, ( such contracts and agreements being collectively
referred to hereinafter as the "Contracts").
2 Subject to the terms of the Asset Purchase Agreement, ISG accepts the
assignment and transfer and agrees to perform all responsibilities and
liabilities, from the date of this Agreement, of Gifford-Hill pursuant to the
Contracts.
3. Gifford-Hill hereby guarantees to CLECO, LEPA and LPPA the full and faithful
performance of the Contracts prior to the date of this Agreement, and agrees
that CLECO, LEPA and LPPA have not, and do not, release or waive recourse
against Gifford-Hill for any breach or violation of the Contracts, or any of
them, prior to the date of this Agreement.
4. CLECO, LEPA and LPPA hereby consent to the assignment of the Contracts from
Gifford-Hill to ISG, and confirm that the Contracts are in full force and
effect, according to their respective terms, and are not in default as of the
date of this Agreement.
Thus done, read and signed in the City of _______________, State of
_______________, on this the __ day of _________, 2000, in the presence of me,
Notary Public, and the undersigned competent witnesses after reading the whole.
WITNESSES: ISG RESOURCES, INC.
----------------------------- ---------------------------------
By:
------------------------------
Its:
------------------------------
----------------------------- ---------------------------------
Notary Public
Thus done, read and signed in the City of ___________, State of
_____________, on this the __ day of ___________, 2000, in the presence of me,
Notary Public, and the undersigned competent witnesses after reading the whole.
WITNESSES: HANSON AGGREGATES WEST, INC.
----------------------------- ---------------------------------
By:
------------------------------
Its:
------------------------------
----------------------------- ---------------------------------
Notary Public
<PAGE>
Thus done, read and signed in the City of ___________, State of
_______________, on this the __day of ______________, 2000, in the presence of
me, Notary Public, and the undersigned competent witnesses after reading the
whole.
WITNESSES: CENTRAL LOUISIANA ELECTRIC
COMPANY, INC.
----------------------------- ---------------------------------
By:
------------------------------
Its:
------------------------------
----------------------------- ---------------------------------
Notary Public
Thus done, read and signed in the City of ________________, State of
____________, on this the __ day of _____________, 2000, in the presence of me,
Notary Public, and the undersigned competent witnesses after reading the whole.
WITNESSES: LOUISIANA ENERGY AND
POWER AUTHORITY
----------------------------- ---------------------------------
By:
------------------------------
Its:
------------------------------
----------------------------- ---------------------------------
Notary Public
Thus done, read and signed in the City of ______________, State of
________, on this the __ day of _____________, 2000, in the presence of me,
Notary Public, and the undersigned competent witnesses after reading the whole.
WITNESSES: LAFAYETTE PUBLIC POWER AUTHORITY
----------------------------- ---------------------------------
By:
------------------------------
Its:
------------------------------
----------------------------- ---------------------------------
Notary Public
Thus done, read and signed in the City of _____________, State of
_____________, on this the __ day of ___________, 2000, in the presence of me,
Notary Public, and the undersigned competent witnesses after reading the whole.
<PAGE>
Exhibit E
ASSIGNMENT AND CONSENT AGREEMENT
This Assignment and Consent Agreement (this "Agreement") is entered
into on this the __ day of __________, 2000 by and between ISG Resources, Inc.
("ISG"), Hanson Aggregates West, Inc., a Delaware corporation (previously named
Cornestone C&M, Inc., d/b/a Gifford-Hill & Company, and prior to that, Beazer
West, Inc., and prior to that, Gifford-Hill & Company, Inc.) ("Gifford-Hill")
and Gulf States Utilities Company ("Gulf States").
Whereas, on October 20, 1986, Gulf States and Gifford-Hill entered into
an Ash Marketing Agreement (the "Ash Agreement"), which has been amended from
time to time, regarding the disposal and sale of fly ash by Gifford Hill;
Whereas, pursuant to an Asset Purchase Agreement (the "Asset Purchase
Agreement") between ISG and Hanson Aggregates West, Inc., a Delaware
corporation, Gifford-Hill proposes to sell its fly ash marketing and disposal
services business to ISG, and the assignment of the Ash Agreement, as amended,
is an essential element of the Asset Purchase Agreement;
Now, therefore, in consideration of the premises and covenants
hereinafter contained, and other good and valuable consideration, the receipt,
adequacy, and sufficiency of which are hereby acknowledged, ISG, Gifford-Hill
and Gulf States agree as follows.
Gifford-Hill hereby assigns and transfers to ISG all rights, title,
interest and responsibilities of Gifford-Hill in and to the Ash Agreement, as
amended, (the "Contract").
Subject to the terms of the Asset Purchase Agreement, ISG accepts the
assignment and transfer and agrees to perform all responsibilities and
liabilities, from the date of this Agreement, of Gifford-Hill pursuant to the
Contract.
Gifford-Hill hereby guarantees to Gulf States the full and faithful
performance of the Ash Agreement prior to the date of this Agreement, and agrees
that Gulf States has not, and does not, release or waive recourse against
Gifford-Hill for any breach or violation of the Ash Agreement prior to the date
of this Agreement.
Gulf States hereby consents to the assignment of the Ash Agreement from
Gifford-Hill to ISG, and confirms that the Ash Agreement is in full force and
effect, according to its terms, has been extended until December 5, 2003 and is
not in default as of the date of this Agreement.
In testimony whereof, the parties hereto have executed this Assignment
and Consent Agreement on the date first written above.
GULF STATES UTILITIES COMPANY
---------------------------------
Attest: By:
------------------------------
Its:
------------------------------
---------------
ISG RESOURCES, INC.
---------------------------------
Attest: By:
------------------------------
Its:
------------------------------
---------------
HANSON AGGREGATES WEST, INC.
---------------------------------
Attest: By:
------------------------------
Its:
------------------------------
---------------
<PAGE>
Exhibit F
ASSIGNMENT AND CONSENT AGREEMENT
This Assignment and Consent Agreement (this "Agreement") is entered
into on this the __ day of ____________, 2000 by and between ISG Resources, Inc.
("ISG"), Hanson Aggregates West, Inc., a Delaware corporation (previously named
Cornestone C&M, Inc., d/b/a Gifford-Hill & Company, and prior to that, Beazer
West, Inc., and prior to that, Gifford-Hill & Company, Inc.) ("Gifford-Hill")
and Southwestern Electric Power Company ("SWEPCO").
Whereas, on January 28, 1977, SWEPCO and Gifford-Hill entered into an
Ash Disposal Agreement (the "Ash Agreement"), which has been amended from time
to time, regarding the disposal and sale of fly ash by Gifford Hill;
Whereas, pursuant to an Asset Purchase Agreement (the "Asset Purchase
Agreement") between ISG and Hanson Aggregates West, Inc., a Delaware
corporation, Gifford- Hill proposes to sell its fly ash marketing and disposal
services business to ISG, and the assignment of the Ash Agreement, as amended,
is an essential element of the Asset Purchase Agreement;
Now, therefore, in consideration of the premises and covenants
hereinafter contained, and other good and valuable consideration, the receipt,
adequacy, and sufficiency of which are hereby acknowledged, ISG, Gifford-Hill
and SWEPCO agree as follows.
Gifford-Hill hereby assigns and transfers to ISG all rights, title,
interest and responsibilities of Gifford-Hill in and to the Ash Agreement, as
amended, ( the "Contract").
Subject to the terms of the Asset Purchase Agreement, ISG accepts the
assignment and transfer and agrees to perform all responsibilities and
liabilities, from the date of this Agreement, of Gifford-Hill pursuant to the
Contract.
Gifford-Hill hereby guarantees to SWEPCO the full and faithful
performance of the Ash Agreement prior to the date of this Agreement, and agrees
that SWEPCO has not, and does not, release or waive recourse against
Gifford-Hill for any breach or violation of the Ash Agreement prior to the date
of this Agreement.
SWEPCO hereby consents to the assignment of the Ash Agreement from
Gifford-Hill to ISG, and confirms that the Ash Agreement is in full force and
effect, according to its terms, and is not in default as of the date of this
Agreement.
In testimony whereof, the parties hereto have executed this Assignment
and Consent Agreement on the date first written above.
SOUTHWESTERN ELECTRIC POWER COMPANY
---------------------------------
Attest: By:
------------------------------
Its:
------------------------------
---------------
ISG RESOURCES, INC.
---------------------------------
Attest: By:
------------------------------
Its:
------------------------------
---------------
HANSON AGGREGATES WEST, INC.
---------------------------------
Attest: By:
------------------------------
Its:
------------------------------
---------------
<PAGE>
Exhibit G
ASSIGNMENT AND CONSENT AGREEMENT
This Assignment and Consent Agreement (this "Agreement") is entered
into on this the __ day of ______, 2000 by and between ISG Resources, Inc.
("ISG"), Ash Carriers, Inc. ("ACI") and F & F Ashline, Inc. ("F&F").
Whereas, on May 24, 1999, F&F and ACI entered into a Fly Ash
Subcontract Hauling Agreement (the "Hauling Agreement");
Whereas, pursuant to an Asset Purchase Agreement (the "Asset Purchase
Agreement") between ISG and Hanson Aggregates West, Inc. ("Hanson"), Hanson
proposes to sell its fly ash marketing and disposal services business to ISG;
Whereas, ACI is a subsidiary of Hanson, and the hauling Agreement
relates to the transportation of fly ash;
Whereas, the assignment of the Hauling Agreement is an essential
element of the Asset Purchase Agreement.
Now, therefore, in consideration of the premises and covenants
hereinafter contained, and other good and valuable consideration, the receipt,
adequacy, and sufficiency of which are hereby acknowledged, ISG, ACI and F&F
agree as follows.
ACI hereby assigns and transfers to ISG all rights, title, interest and
responsibilities of ACI in and to the Hauling Agreement.
Subject to the terms of the Asset Purchase Agreement, ISG accepts the
assignment and transfer and agrees to perform all responsibilities and
liabilities, from the date of this Agreement, of ACI pursuant to the hauling
Agreement.
ACI hereby guarantees to F&F the full and faithful performance of the
Hauling Agreement prior to the date of this Agreement, and agrees that F&F has
not, and does not, release or waive recourse against ACI for any breach or
violation of the Hauling Agreement prior to the date of this Agreement.
F&F hereby consents to the assignment of the Hauling Agreement from ACI
to ISG, and confirms that the Hauling Agreement is in full force and effect,
according to its terms, and is not in default as of the date of this Agreement.
In testimony whereof, the parties hereto have executed this Assignment
and Consent Agreement on the date first written above.
F & F ASHLINE, INC.
---------------------------------
Attest: By:
------------------------------
Its:
------------------------------
---------------
ISG RESOURCES, INC.
---------------------------------
Attest: By:
------------------------------
Its:
------------------------------
---------------
ASH CARRIERS, INC.
---------------------------------
Attest: By:
------------------------------
Its:
------------------------------
---------------
<PAGE>
Exhibit H
ASSIGNMENT AND CONSENT AGREEMENT
This Assignment and Consent Agreement (this "Agreement") is entered
into on this the __ day of _______, 2000 by and between ISG Resources, Inc.
("ISG"), Ash Carriers, Inc. ("ACI") and McConnell & Son, Inc. ("McConnell").
Whereas, on June 1, 1999, McConnell and ACI entered into a Fly Ash
Subcontract Hauling Agreement (the "Hauling Agreement");
Whereas, pursuant to an Asset Purchase Agreement (the "Asset Purchase
Agreement") between ISG and Hanson Aggregates West, Inc. ("Hanson"), Hanson
proposes to sell its fly ash marketing and disposal services business to ISG;
Whereas, ACI is a subsidiary of Hanson, and the hauling Agreement
relates to the transportation of fly ash;
Whereas, the assignment of the Hauling Agreement is an essential
element of the Asset Purchase Agreement.
Now, therefore, in consideration of the premises and covenants
hereinafter contained, and other good and valuable consideration, the receipt,
adequacy, and sufficiency of which are hereby acknowledged, ISG, ACI and
McConnell agree as follows.
ACI hereby assigns and transfers to ISG all rights, title, interest and
responsibilities of ACI in and to the Hauling Agreement.
Subject to the terms of the Asset Purchase Agreement, ISG accepts the
assignment and transfer and agrees to perform all responsibilities and
liabilities, from the date of this Agreement, of ACI pursuant to the hauling
Agreement.
ACI hereby guarantees to McConnell the full and faithful performance of
the Hauling Agreement prior to the date of this Agreement, and agrees that
McConnell has not, and does not, release or waive recourse against ACI for any
breach or violation of the Hauling Agreement prior to the date of this
Agreement.
McConnell hereby consents to the assignment of the Hauling Agreement
from ACI to ISG, and confirms that the Hauling Agreement is in full force and
effect, according to its terms, and is not in default as of the date of this
Agreement.
In testimony whereof, the parties hereto have executed this Assignment
and Consent Agreement on the date first written above.
McCONNELL & SON, INC.
---------------------------------
Attest: By:
------------------------------
Its:
------------------------------
---------------
ISG RESOURCES, INC.
---------------------------------
Attest: By:
------------------------------
Its:
------------------------------
---------------
ASH CARRIERS, INC.
---------------------------------
Attest: By:
------------------------------
Its:
------------------------------
---------------
<PAGE>
EXHIBIT I
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Agreement") is entered into on this
the __ day of ________, 2000 by and between ISG Resources, Inc. ("ISG"), Hanson
Aggregates West, Inc. ("Assignor").
Whereas, pursuant to an Asset Purchase Agreement between ISG and Hanson
Aggregates West, Inc. ("Hanson"), Hanson proposes to sell its fly ash marketing
and disposal services business to ISG;
Whereas, the assignment of the contracts listed in exhibit A attached
hereto (the "Contracts") is an essential element of the Asset Purchase
Agreement.
Now, therefore, in consideration of the premises and covenants
hereinafter contained, and other good and valuable consideration, the receipt,
adequacy, and sufficiency of which are hereby acknowledged, ISG, and Assignor
agree as follows.
Assignor hereby assigns and transfers to ISG all rights, title,
interest and responsibilities of Assignor in and to the Contracts.
Subject to the terms of the Asset Purchase Agreement, ISG accepts the
assignment and transfer and agrees to perform all responsibilities and
liabilities, from the date of this Agreement, of Assignor pursuant to the
Contracts.
In testimony whereof, the parties hereto have executed this Assignment
and Consent Agreement on the date first written above.
ISG RESOURCES, INC.
---------------------------------
Attest: By:
------------------------------
Its:
------------------------------
---------------
Assignor
---------------------------------
---------------------------------
Attest: By:
------------------------------
Its:
------------------------------
---------------
<PAGE>
EXHIBIT J
Seller's Performance Certificate
I, the undersigned, as _______________ of HANSON AGGREGATES WEST, INC.,
a ______________ corporation, do hereby certify that:
1. This Certificate is being delivered at the Closing today pursuant to
Section _____________ of the Asset Purchase Agreement dated August __, 2000 (the
"Agreement") between Hanson Aggregates West, Inc. (the "Seller") and ISG
Resources, Inc., a Utah corporation (the "Buyer"). Unless otherwise indicated
herein, capitalized terms used in this Certificate shall have the same meanings
given to them in the Agreement.
2. Each of the representations and warranties made by the Seller in the
Agreement are true and correct in all material respects as of the date of the
Agreement, and there has occurred no material adverse change in the business or
financial condition of the Company between the date of the Agreement and the
Closing Date.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
as of _______________, 2000.
HANSON AGGREGATES WEST, INC.
----------------------------
By:
------------------------
Its:
------------------------
<PAGE>
EXHIBIT K
Buyer's Performance Certificate
I, the undersigned, the ____________________ of ISG Resources, Inc., a
Utah corporation (the "Buyer"), do hereby certify that:
1. This Certificate is being delivered at the Closing today pursuant to Section
__________ of the Asset Purchase Agreement dated August __, 2000 (the
"Agreement") between Hanson Aggregates West, Inc. (the "Seller") and ISG
Resources, Inc., a Utah corporation (the "Buyer"). Unless otherwise indicated
herein, capitalized terms used in this Certificate shall have the same meanings
given to them in the Agreement.
2. Each of the representations and warranties made by the Purchaser in the
Agreement are true and correct in all material respects as of the date of the
Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
as of ________________, 2000.
ISG RESOURCES, INC.
--------------------------
By:
-----------------------
Its:
-----------------------
<PAGE>
Exhibit L
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made on this the ___
day of September, 2000 by and between ISG Resources, Inc. ("ISG") with its
principal office at 136 East South Temple, Suite 1300, Salt Lake City, Utah
84111 and Hanson Aggregates West, Inc. ("Hanson"), with its principal office at
11700 Old Katy Road, Suite 1200, Houston, Texas 77079.
WHEREAS, ISG and Hanson have entered into an Asset Purchase Agreement
dated September 1, 2000 (the "Asset Purchase Agreement") pursuant to which ISG
will acquire Hanson's right, title and interest in and to the fly ash business
conducted by Hanson at the Welsh Power Plant near Cason, Texas; and,
WHEREAS, Willie Brown ("Brown") is employed by Hanson as its Plant
Manager at the Welsh Power Plant; and
WHEREAS, ISG is desirous of entering into this Agreement with Hanson
wherein Hanson will, solely through its employee, Brown, provide plant
management consulting services to ISG in the form of on site services related to
the fly ash operations at the Welsh Power Plant.
NOW THEREFORE, in consideration of the mutual obligations herein
contained, it is agreed by and between the parties as set forth herein.
1. TERM and COMPENSATION.
_ This Agreement shall begin on the date first written above and shall
remain in effect until the close of business on December 31, 2000.
_ During the term of this Agreement, ISG shall pay to Hanson, or
reimburse Hanson for, the sum equal to the salary and benefits paid to Brown by
Hanson on the date of this Agreement. Such sum will be paid monthly in arrears.
Hanson will not increase the salary or benefits paid to Brown without the
written consent of ISG.
2. SCOPE OF WORK and EXCLUSIVITY.
_ Hanson will use all reasonable efforts to cause Brown to continue to
act as Plant Manager at the Welsh Power Plant, and provide consulting services
to ISG related to the fly ash operations at said Plant.
_ Brown shall provide 40 hours per week of consulting services to ISG
at the Welsh Power Plant, and such additional services as ISG and Hanson may
agree upon.
3. TERMINATION OF AGREEMENT.
_ This Agreement will terminate: (i) at the expiration of its term; or
(ii) upon the death, incapacity or resignation of Brown.
_ ISG may terminate this Agreement at any time if Brown fails, in ISG's
sole judgment, to provide the consulting services provided for in this
Agreement.
4. TAXES.
Subject to reimbursement as set forth herein, Hanson will be solely
responsible for payment of all federal, state and local taxes and any other
mandated deductions from the amount received by Brown from Hanson.
5. EMPLOYMENT STATUS.
This Agreement does not create an employer-employee relationship
between Brown and ISG, nor an agency, joint venture or partnership. Brown shall
remain an employee of Hanson at all times.
6. INDEMNIFICATION. ISG shall hold harmless, defend, and indemnify Hanson
against any suits, liabilities, claims, demands, or damages, including but not
limited to personal injuries and attorneys' fees, arising from Brown's
performance of the consulting services at the plantsite under this Agreement.
7. CHOICE OF LAWS.
This Agreement shall be governed by and construed according to the laws
of the State of Texas.
IN WITNESS WHEREOF, the parties have executed this Agreement on
duplicate as of the date first above written.
ISG RESOURCES, INC. HANSON AGGREGATES WEST, INC.
------------------------------- -------------------------------
By: By:
--------------------------- ----------------------------
Its: Its:
-------------------------- ---------------------------
<PAGE>
List of Schedules
Schedule 2.2 Material Leases
Schedule 2.3 Material Contracts
Schedule 2.4 Intellectual Property Rights
Schedule 4.1 Identification of the Real Properties
Schedule 8.3 No Conflicts
Schedule 8.5 No Changes
Schedule 8.6.2 Real Properties
Schedule 8.7 Intellectual Property Rights
Schedule 8.10 Litigation
Schedule 8.11 Compliance with Laws
Schedule 8.13 Governmental Authorizations and Regulations
Schedule 8.15 Certain Transactions
Schedule 8.16 Product Warranties
Schedule 8.17 Insurance
<PAGE>
Schedule 2.2
Material Leases
1. 1998 Ford F150 Supercab 4X2, VIN 1FTZX1765WNB50832, located at the Cason
Plant, Texas.
<PAGE>
Schedule 2.3
Material Contracts
[Consent is required from the relevant Utilities in order to transfer the ash
marketing and/or disposal agreements comprising the Business which are listed in
more detail below]
1. Ash Disposal Agreement, Welsh Power Plant, Cason, Texas DATED January 28,
1977 BETWEEN Southwestern Electric Power Company and Gifford-Hill &
Company, Inc.
2. Addendum DATED March 17, 1981 TO Ash Disposal Agreement, Welsh Power Plant,
Cason, Texas dated January 28, 1977 between Southwestern Power Company and
Gifford-Hill & Company, Inc.
3. Amendment DATED July 15, 1981 TO Ash Disposal Agreement, Welsh Power Plant,
Cason, Texas dated January 28, 1977 between Southwestern Electric Power
Company and Gifford-Hill & Company AND Addendum to Ash Disposal Agreement
dated March 17, 1981 between Southwestern Electric Power Company and
Gifford-Hill & Company, Inc.
4. Addendum DATED April 21, 1989 TO Ash Disposal Agreement, Welsh Power Plant,
Cason, Texas dated January 28, 1977 between Southwestern Power Company and
Gifford-Hill & Company, Inc.
5. Addendum DATED September 25, 1997 TO Ash Disposal Agreement, Welsh Power
Plant, Cason, Texas dated January 28, 1977 between Southwestern Power
Company and Gifford-Hill & Company, Inc.
6. Ash Marketing and Disposal Agreement DATED November 9, 1981 BETWEEN Central
Louisiana Electric Company and Lafayette Public Power Authority and
Gifford-Hill & Company, Inc.
7. Amendment DATED April 1, 1994 to Ash Marketing and Disposal Agreement dated
November 9, 1981 between Central Louisiana Electric Company and Lafayette
Public Power Authority and Beazer West, Inc.
8. Second Amendment DATED December 5, 1995 to Ash Marketing and Disposal
Agreement dated November 9, 1981 between Central Louisiana Electric Company
and Lafayette Public Power Authority Louisiana Energy and Power Authority
and Cornerstone C & M, Inc. (formerly Gifford-Hill & Company, Inc.)
9. Ash Marketing Agreement DATED October 20, 1986 BETWEEN Gulf States
Utilities Company and Gifford-Hill & Company, Inc.
10. Amendment for Fitness-For-Duty Policy DATED November 5, 1991 to Ash
Marketing Agreement dated October 20, 1986 BETWEEN Gulf States Utilities
Company and Gifford-Hill & Company, Inc.
11. Amendment DATED December 6, 1993 to Ash Marketing Agreement dated October
20, 1986 BETWEEN Gulf States Utilities Company and Gifford-Hill & Company,
Inc.
12. Adendum Two dated December 6, 1998 to Ash Marketing Agreement dated October
20, 1986 BETWEEN Gulf States Utilities Company and Gifford-Hill & Company,
Inc.
13. Fly Ash Subcontract Hauling Agreement DATED May 24, 1999 BETWEEN F & F
Ashline, Inc. and Ash Carriers, Inc.
14. Fly Ash Subcontract Hauling Agreement DATED June 1, 1999 BETWEEN McConnell
& Son, Inc. and Ash Carriers, Inc.
15. Customer sales contracts and purchase orders individually in excess of
$50,000 relating to the Business entered into in the ordinary course of
business, attached hereto.
<PAGE>
Schedule 2.4
Intellectual Property Rights
None. Seller specifically does not convey any right, title or interest to the
Hanson name and trademark, nor any derivative thereof.
<PAGE>
Schedule 4.1
Identification of the Real Properties
None, there is no ownership of real property included in the Assets.
However, certain occupation rights are afforded to the Seller under the ash
marketing and/or disposal contracts comprising the Business, which are more
fully detailed on Schedule 2.3. The Seller has constructed the following
building on the sites under the aforementioned occupation rights and these
building may be required to be removed at the expiration of the relevant
contracts:
Cason, Texas, Plant:
Two Office Buildings
Two Shop Buildings
Boyce, Louisiana, Plant:
Brick Office Building
Westlake, Louisiana, Plant:
Brick Office Building
<PAGE>
Schedule 8.3
No Conflicts
Consent is required from the relevant Utilities in order to transfer the ash
marketing and/or disposal agreements comprising the Business, which are listed
in more detail on Schedule 2.3.
<PAGE>
Schedule 8.5
No Changes
None.
<PAGE>
Schedule 8.6.2
Real Properties
None.
<PAGE>
Schedule 8.7
Intellectual Property Rights
Seller specifically does not convey any right, title or interest to the Hanson
name and trademark, nor any derivative thereof.
<PAGE>
Schedule 8.10
Litigation
None.
<PAGE>
Schedule 8.11
Compliance with Laws
None.
<PAGE>
Schedule 8.13
Governmental Authorizations and Regulations
Air Control Permit for Silo at Cason, Texas plant. The owner of the Cason Power
Plant is responsible for obtaining Air Control Permit for Silo to comply with
all applicable State and Federal laws.
<PAGE>
Schedule 8.15
Certain Transactions
None.
<PAGE>
Schedule 8.16
Product Warranties
Sales contracts state that Fly Ash meets all applicable specifications set forth
under ASTM C-618 requirements for Class C Fly Ash.
<PAGE>
Schedule 8.17
Insurance
[To be provided]
