UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: September 4, 1998
(Date of earliest event reported)
Commission file number: 0-12807
Golden Genesis Company
(Exact name of registrant as specified in its charter)
Delaware 84-0411983
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4585 McIntyre Street, Golden, Colorado 80403
(Address of principal executive offices) (Zip Code)
(303) 271-7465
(Registrant's telephone number, including area code)
Item 2. Acquisition of Assets
On September 4, 1998, Golden Genesis Company acquired all of the
issued and outstanding shares of Solartec Sociedad Anonima
(Solartec), for a one year, $3.6 million note. Solartec,
headquartered in Argentina, is a value added systems integrator
and distributor of solar electric products and manufacturer of
custom modules. Solartec specializes in power systems for
applications within the telecommunications and oil and gas
markets and the distribution of solar electric components.
Solartec was purchased from Golden Technologies Company, Inc., a
wholly owned subsidiary of ACX Technologies, Inc., and a majority
shareholder of Golden Genesis Company.
Item 7. Financial Statements & Exhibits
It is impracticable at this time for the Company to provide the
financial statements required to be filed with this Form 8-K.
The Company intends to file such required financial statements
not later than November 20, 1998.
The Share Purchase Agreement related to this acquisition is filed
as Exhibit 2.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
September 21, 1998 Golden Genesis Company
By /s/ Jeffery C. Brines
-----------------------------------
Jeffery C. Brines
Vice President, Secretary and Chief
Financial Officer
Exhibit 2
SHARE PURCHASE AGREEMENT
Dated as of September 4, 1998
By and Among
Golden Genesis Company,
and
Golden Technologies Company, Inc.
and
ACX Technologies, Inc.
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this "Agreement"), dated as
of September 4, 1998, is entered into by and among GOLDEN GENESIS
COMPANY, a Delaware corporation ("Purchaser"), GOLDEN
TECHNOLOGIES COMPANY, INC., a Colorado corporation ("GTC"), and
ACX TECHNOLOGIES, INC., a Colorado corporation ("ACX," and
together with GTC as the sole shareholders of the Company, the
"Shareholders").
RECITALS:
A. The Shareholders own (beneficially or of record or
both) (i) all of the issued and outstanding capital stock of
Solartec Sociedad Anonima, a corporation organized under the laws
of the Republic of Argentina ("Solartec"), consisting of 690,000
common shares, face value of one Argentine Peso (AP$1) per share
(the "Solartec Shares"), and (ii) other than a director's
qualifying share, all of the issued and outstanding capital stock
of Golden Genesis do Brasil Energy Renovavel, Ltda., a
corporation organized under the laws of the federative republic
of Brazil ("GGDB" and, together with Solartec, the "Companies"),
consisting of 1,290,461 quotas, face value of thirty-six centavos
(R$0.36) per quota (the "GGDB Quotas" together with the Solartec
Shares, the "Shares").
B. Purchaser desires to purchase and the Shareholders
desire to sell all of the Shares upon the terms and conditions
set forth herein.
C. The Boards of Directors of each of Purchaser and the
Shareholders deem it advisable and in the best interests of their
respective shareholders, that Purchaser acquire the Company.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements
set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Definitions. As used in this
Agreement, the following terms shall have the meanings set forth
or as referenced below:
"Actions" shall mean any litigation and proceedings of any
nature, whether at law or in equity, before any court,
arbitrator, arbitration panel or Governmental Authority.
"Closing" shall mean the closing of the transactions
contemplated hereby, which shall take place at the offices of
Hogan & Hartson L.L.P., One Tabor Center, 1200 Seventeenth
Street, Suite 1500, Denver, Colorado, on the Closing Date
commencing at 10:00 A.M. local time, or at such other time or
place as the parties may agree upon in writing and shall be
effective as of September 1, 1998.
"Closing Date" shall mean September 4, 1998, or such other
date as the Shareholders and Purchaser shall agree in writing.
"Companies" shall mean Solartec Sociedad Anonima, a
corporation organized under the laws of the Republic of Argentina
and Golden Genesis do Brasil Energy Renovavel, Ltda., a
corporation organized under the laws of the federative republic
of Brazil.
"Deferred Payment Note" shall have the meaning set forth in
Section 2.2.
"Disclosure Schedule" shall mean the disclosure schedule
delivered to Purchaser by the Company and the Shareholders on or
prior to the date of this Agreement.
"Dispute" shall have the meaning set forth in Section
8.12(a).
"Effective Date" shall have the meaning set forth in
Section 2.4.
"Financial Statements" shall have the meaning set forth in
Section 3.6.
"Governmental Authority" shall mean any agency, public or
regulatory authority, instrumentality, department, commission,
court, ministry, tribunal or board of any government, whether
foreign or domestic and whether national, federal, provincial,
state, regional, local or municipal.
"Insurance Policies" shall have the meaning set forth in
Section 3.12.
"Investigation" shall mean any investigation of any nature
before any Governmental Authority.
"Laws" shall mean statutes, common laws, rules, ordinances,
regulations, codes, licensing requirements, orders, judgments,
injunctions, decrees, licenses, permits and bylaws of a
Governmental Authority.
"Liabilities" shall mean debts, liabilities, commitments,
obligations, duties and responsibilities of any kind and
description, whether absolute or contingent, monetary or
nonmonetary, direct or indirect, known or unknown or matured or
unmatured, or of any other nature.
"Lien" shall mean any security interest, lien, mortgage,
claim, charge, pledge, restriction, equitable interest or
encumbrance of any nature and in the case of securities any put,
call or similar right of a third party with respect to such
securities.
"Person" shall mean any natural person, corporation,
business trust, joint venture, association, company, firm,
partnership or other entity or government or Governmental
Authority.
"Proprietary Right" shall mean any trade name, trademark,
service mark, patent, copyright, proprietary technology, know
how, process and industrial design, and any application for any
of the foregoing.
"Purchase Price" shall have the meaning set forth in Section
2.2.
"Purchaser" shall mean Golden Genesis Company, a Delaware
corporation.
"Returns" shall mean all returns, declarations, reports,
forms, estimates, information returns, statements or other
documents (including any related or supporting information) filed
or required to be filed with or supplied to any Governmental
Authority in connection with any Taxes.
"Shareholders" shall mean ACX Technologies, Inc., a Colorado
corporation and Golden Technologies Company, Inc., a Colorado
corporation, together being the sole shareholders of the Company.
"Shares" shall have the meaning set forth in Recital A
hereto.
"Subsidiary" shall mean any corporation or other entity of
which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time
directly or indirectly owned by either of the Companies.
"Taxes" shall mean all taxes, charges, fees, duties, levies,
penalties or other assessments, including, without limitation,
income, gross receipts, excise, real and personal property,
sales, transfer, license, payroll, withholding, social security,
franchise, unemployment insurance, workers' compensation,
employer health tax or other taxes, imposed by any Governmental
Authority and shall include any interest, penalties or additions
to tax attributable to any of the foregoing.
Section 1.2 Terms Generally. The definitions in
Section 1.1 shall apply equally to both the singular and plural
forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without
limitation" even if not followed actually by such phrase unless
the context expressly provides otherwise. With respect to any
particular representation contained in this Agreement,
"knowledge" when used to apply to "knowledge" of the Shareholders
shall mean the actual knowledge or conscious awareness of the
specific Person with managerial or substantial responsibility on
behalf of the applicable Shareholder for the subject matter of
such representation. All references herein to Articles,
Sections, paragraphs and Annexes, Exhibits and Schedules shall be
deemed references to this Agreement unless the context shall
otherwise require. Unless otherwise expressly defined, terms
defined in the Agreement shall have the same meanings when used
in any Annex, Exhibit or Schedule and terms defined in any Annex,
Exhibit or Schedule shall have the same meanings when used in the
Agreement or in any other Annex, Exhibit or Schedule. The words
"herein," "hereof," "hereto" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular provision of this Agreement.
ARTICLE II
PURCHASE AND SALE OF STOCK
Section 2.1 Transfer of Stock. On the Closing Date and
subject to the terms and conditions set forth in this Agreement,
the Shareholders will sell, convey, assign, transfer and deliver
all of the issued and outstanding Shares to Purchaser, free and
clear of all Liens.
Section 2.2 Purchase Price. The total consideration (the
"Purchase Price") to be paid by Purchaser to the Shareholders for
the Shares shall be $3,605,000.00, comprised of $3,600,000.00 to
be allocated towards the purchase of the Solartec Shares and
$5,000.00 to be allocated towards the purchase of GGDB Quotas,
payable on the Closing Date by means of a note, substantially in
the form of Exhibit A hereto (the "Deferred Payment Note").
Section 2.3 Procedures. On the Closing Date, upon
satisfaction of the terms and conditions set forth herein, the
Deferred Payment Note shall be issued to the Shareholders as
instructed by the Shareholders.
Section 2.4 Effective Date. The parties hereto agree and
acknowledge that this Agreement represents the formalization of
an agreement in principle between the parties prior to the date
hereof and, accordingly, upon the consummation of the Closing,
notwithstanding the Closing Date or any other term or provision
set forth herein, the transactions provided for herein shall be
deemed to have occurred as of September 1, 1998 (the "Effective
Date").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders represent and warrant to Purchaser as set
forth in this Article III.
Section 3.1 Corporate Organization. Each of the
Companies is a corporation duly organized, validly existing and
in good standing under the laws of its respective jurisdiction of
incorporation. Neither of the Companies has any Subsidiaries,
and does not have an ownership interest in any Person other than
as set forth in Section 3.1 of the Disclosure Schedule. Each of
the Companies has the requisite corporate power and authority to
own, lease and operate its respective properties and assets and
to carry on its business as now being conducted and is duly
qualified or licensed to do business as a foreign corporation in
good standing in the jurisdictions in which the ownership, lease
or operation of its property or the conduct of its business
requires such qualification, except jurisdictions in which the
failure to be so qualified or licensed would not reasonably be
expected to have a material adverse effect.
Section 3.2 Ownership of Shares. The Shares are owned by
the Shareholders free and clear of all Liens, other than any
restrictions imposed by federal and state securities laws. Other
than the Shares held by the Shareholders there are no Shares of
either of the Companies issued or outstanding. Upon the
consummation of the transactions contemplated hereby, Purchaser
will acquire good title to the Shares free and clear of all
Liens, other than the restrictions on subsequent transfers
imposed by applicable law.
Section 3.3 Authorization, Etc. The Shareholders have
full power and authority to execute, deliver and perform its
obligations under this Agreement and the documents and
instruments contemplated hereby and to carry out the transactions
contemplated hereby and thereby. The Shareholders have duly
approved and authorized the execution and delivery of this
Agreement and the documents and instruments contemplated hereby
and the consummation of the transactions contemplated hereby and
thereby, and no other corporate proceedings or other action on
the part of either of the Shareholders are necessary to approve
and authorize the execution, delivery and performance by each of
the Shareholders of this Agreement and the documents and
instruments contemplated hereby or the consummation by each of
the Shareholders of the transactions contemplated hereby or
thereby. This Agreement constitutes a legal, valid and binding
agreement of each of the Shareholders, enforceable against each
of the Shareholders in accordance with its terms, except as
enforcement hereof may be limited by equitable principles and by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally.
Section 3.4 No Approvals or Conflicts. Except as would
not reasonably be expected to have a material adverse effect,
neither the execution, delivery or performance by either of the
Shareholders of this Agreement nor the consummation by either of
the Shareholders of the transactions contemplated hereby will
violate, conflict with or result in a breach of any provision of
the respective certificate of incorporation, bylaws or other
organizational documents of either of the Companies.
Section 3.5 Capital Stock. As of the date hereof,
(a) the authorized capital stock of Solartec consists of 690,000
common shares, face value of one Argentine Peso (AP$1) per share,
all of which are issued and outstanding and owned by the
Shareholders and (b) the authorized capital stock of GGDB
consists of 1,290,462 quotas, face value thirty-six centavos
(R$0.36) per quota, all of which are issued and outstanding and
owned by the Shareholders. There are no subscriptions, options,
warrants, calls, rights, contracts, commitments, understandings,
restrictions or arrangements relating to the issuance, sale,
transfer or voting of any Shares, including any rights of
conversion or exchange under any outstanding securities or other
instruments. All outstanding Shares have been validly issued and
are fully paid, nonassessable and free of preemptive or similar
rights.
Section 3.6 Financial Statements. Solartec has delivered
to Purchaser its unaudited, unreviewed balance sheets as of
December 31, 1996 and December 31, 1997, and related statements
of income and retained earnings and cash flows for each of the
one year periods ended on said dates. GGDB has delivered to
Purchaser its unaudited, unreviewed balance sheet as of July 31,
1998. Such financial statements, including the notes thereto are
collectively referred to herein as the "Financial Statements."
Except as set forth in Section 3.6 of the Disclosure Schedule and
as disclosed in the Financial Statements, neither of the
Companies has any Liabilities, except for Liabilities incurred by
either of the Companies in the ordinary course of business
consistent with past practice that individually or in the
aggregate would not have a material adverse effect.
Section 3.7 Litigation. Section 3.7 of the Disclosure
Schedule lists all (a) Actions pending, or to the knowledge of
the Shareholders, threatened or (b) Investigations to the
knowledge of the Shareholders pending or threatened against the
Companies or any of their properties. There are no Actions
pending or, to the knowledge of the Shareholders, threatened that
relate to or involve the Companies (or any of their officers or
directors in connection with the business and affairs of the
Companies) or any properties or rights of the Companies that
questions or challenges the validity of this Agreement or any
action taken or to be taken by the Shareholders pursuant to this
Agreement..
Section 3.8 Taxes.
(a) Except as set forth in Section 3.8(a) of the
Disclosure Schedule, each of the Companies has (i) timely filed
with the appropriate federal, state and local taxing authorities
all Returns required to be filed by or with respect to such
Company, and such Returns when filed were correct and complete in
all material respects and (ii) timely paid or made provision for
in the appropriate financial statements all material Taxes of
such Company shown to be due on such Returns. There are no Liens
for Taxes upon the assets of either of the Companies except liens
for current Taxes not yet due or Taxes being contested in good
faith by appropriate proceedings. Neither the Companies nor the
Shareholders have received any written notice of deficiency or
assessment from any taxing Governmental Authority with respect to
liabilities for Taxes of either of the Companies which have not
been paid or finally settled.
(b) Neither of the Companies is in arrears with respect to
any required withholdings or installment payments of any Tax and
have not filed any waiver or extension of the applicable statute
of limitations for assessment of Taxes for a taxation year under
any applicable income or franchise tax law or any other
legislation imposing tax on either of the Companies.
Section 3.9 Title to Properties; Encumbrances.
Section 3.9 of the Disclosure Schedule contains a correct and
complete list of all real property owned, leased or used by
either of the Companies as of the date hereof. Each of the
Companies has good and marketable title to or a valid leasehold
interest in all of its respective properties and assets, real,
personal and mixed property (tangible and intangible). None of
the properties and assets of the Companies owned, leased or held
are subject to any Lien, except Liens reflected in the Financial
Statements securing specified liabilities or obligations with
respect to which no default exists (or an event that, whether
with or without notice, gives rise to any right of termination,
cancellation or acceleration) and except other Liens (including
statutory liens for current Taxes not yet due or delinquent or
which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been
established, and mechanics', carriers', materialmens' and similar
liens imposed by law incurred in the ordinary course of business
and not delinquent or which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been
established) that, individually or in the aggregate, would not
reasonably be expected to have a material adverse effect.
Section 3.10 Leases. Section 3.10 of the Disclosure
Schedule contains a correct and complete list of all leases
having a rental obligation of $5,000.00 or more per annum
pursuant to which either of the Companies is the lessee of any
real or personal property and identifies all lessors under such
leases the consent of which is required for either of the
Companies' execution of this Agreement and consummation of the
transactions contemplated hereby. All such leases are valid and
enforceable in accordance with their terms, are in full force and
effect, and there are no existing defaults by either of the
Companies thereunder.
Section 3.11 Intellectual Property.
(a) Section 3.11(a) of the Disclosure Schedule
contains a correct and complete list of all Proprietary Rights
used or owned by either of the Companies and registered with any
Governmental Authority, and a list of all licenses and other
agreements relating thereto. The Companies have valid and
enforceable rights to all Proprietary Rights that are necessary
to permit them to conduct their respective businesses
substantially as now conducted, except where the lack of such
rights would not reasonably be expected to have a material
adverse effect.
(b) All material Proprietary Rights used or owned by
either of the Companies are valid and in full force and effect.
Section 3.12 Insurance. Section 3.12 of the Disclosure
Schedule contains an accurate and complete description of all
insurance contracts currently maintained by either of the
Companies (collectively, the "Insurance Policies"), including the
name of the insurer and the types, policy periods, limits and
deductibles. All the Insurance Policies are in full force and
effect, all premiums with respect thereto covering all periods up
to and including the Closing Date have been paid, and no notice
of cancellation or termination has been received with respect to
any such Insurance Policy.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Shareholders
as follows:
Section 4.1 Organization. Purchaser is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware.
Section 4.2 Authorization, Etc. Purchaser has full
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the documents and
instruments contemplated hereby and to carry out the transactions
contemplated hereby and thereby. Purchaser has duly approved and
authorized the execution and delivery of this Agreement and the
documents and instruments contemplated hereby and the
consummation of the transactions contemplated hereby and thereby,
and no other corporate proceedings on the part of Purchaser are
necessary to approve and authorize the execution, delivery and
performance by Purchaser of this Agreement and the documents and
instruments contemplated hereby and the consummation by Purchaser
of the transactions contemplated hereby and thereby. This
Agreement constitutes a legal, valid and binding agreement of
Purchaser, enforceable against Purchaser in accordance with its
terms, except as enforcement hereof may be limited by equitable
principles and by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally.
Section 4.3 No Approvals or Conflicts. Except as would
not reasonably be expected to have a material adverse effect,
neither the execution, delivery or performance by Purchaser of
this Agreement nor the consummation by Purchaser of the
transactions contemplated hereby will violate, conflict with or
result in a breach of any provision of the certificate of
incorporation or by-laws or other organizational documents of
Purchaser.
Section 4.4 Purchase for Investment. Purchaser will
acquire the Shares pursuant to the terms of this Agreement for
investment purposes and not with a view toward any resale or
distribution thereof. Purchaser acknowledges that the Shares
have not been registered for the purpose of the transactions
contemplated by this Agreement or otherwise under the Securities
Act of 1933, as amended, or under any state securities laws.
Purchaser will not sell or otherwise distribute all or any
portion of the Shares acquired hereunder except in compliance
with applicable laws relating to the sale or other distribution
of securities.
ARTICLE V
COVENANTS OF THE PARTIES
Section 5.1 Cooperation. After the Closing, each party
hereto shall from time to time, at the request of any other party
hereto and without further cost or expense to such other party,
execute and deliver such other instruments of conveyance and
transfer and take such other actions as such other party may
reasonably request in order to more effectively consummate the
transactions contemplated hereby and perfect such party's rights
and interests hereunder.
ARTICLE VI
DELIVERIES OF THE SHAREHOLDER
The Shareholders agree on the Closing Date to deliver or
cause to be delivered to Purchaser the following:
Section 6.1 Stock Certificates. Certificates evidencing
the Shares properly endorsed for transfer or accompanied by duly
executed stock powers, in either case executed in blank and
otherwise in form acceptable for transfer on the respective books
of each of the Companies.
Section 6.2 Other Deliveries. All previously undelivered
documents required to be delivered pursuant to this Agreement and
such other documents or instruments as Purchaser or its counsel
may reasonably request.
ARTICLE VII
DELIVERIES OF PURCHASER ON THE CLOSING DATE
Purchaser agrees on the Closing Date to deliver to the
Shareholders the following:
Section 7.1 Payment. Payment of the Purchase Price,
represented by the Deferred Payment Note.
Section 7.2 Secretary's Certificate. A certificate of
the Secretary or an Assistant Secretary of Purchaser setting
forth a copy of the resolutions adopted by the Board of Directors
of Purchaser authorizing and approving the execution and delivery
of this Agreement and the consummation of the transactions
contemplated hereby.
Section 7.3 Other Deliveries. All previously undelivered
documents required to be delivered pursuant to this Agreement and
such other documents or instruments as the Shareholders or their
counsel may reasonably request.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Consent and Waiver. By execution of this
Agreement, the Shareholders hereby consents to and ratifies,
releases and holds harmless Purchaser, each of the Companies and
their respective Affiliates (and their respective officers and
directors, stockholders, agents and representatives) as of and
after the date hereof for any matters related to all actions
taken or omissions made by the Company and its respective
officers, directors, shareholders, agents and representatives
acting in any capacity (including, without limitation, breach of
fiduciary duty) in connection with (a) the management, operation
and conduct of the business of each of the Companies at or prior
to Closing and (b) the negotiation and execution of this
Agreement and consummation of the transactions contemplated
hereby. The Shareholders hereby represent and warrant to the
Purchaser that, to their knowledge, there are no outstanding
claims or disputes by, against or involving either such
Shareholder (in its capacity as a shareholder of either of the
Companies) with either of the Companies.
Section 8.2 Entire Agreement. This Agreement, which also
includes any Exhibits and Schedules hereto, sets forth the entire
agreement and understanding among the parties and merges and
supersedes all prior discussions, agreements and understandings
of every kind and nature among them as to the subject matter
hereof, and no party shall be bound by any condition, definition,
warranty or representation other than as expressly provided for
in this Agreement or as may be on a date on or subsequent to the
date hereof duly set forth in writing signed by each party which
is to be bound thereby.
Section 8.3 Amendments. This Agreement (including any
Exhibits and Schedules hereto) shall not be changed, modified or
amended except by a writing signed by each party to be charged,
and this Agreement may not be discharged except by performance in
accordance with its terms or by a writing signed by each party to
be charged. Except as otherwise provided herein, the rights and
remedies of the parties hereunder are cumulative and not
exclusive of any other right or remedy any party may have. No
failure or delay by any party hereto in exercising any right,
power or privilege shall operate as a waiver of any such right,
power or privilege, except as expressly set forth in this
Agreement. No waiver of any default shall constitute a waiver of
any other or any subsequent default. No single or partial
exercise of any right, power or privilege shall preclude the
further or other exercise of the same or other right, power or
privilege.
Section 8.4 Taxes, Fees and Expenses. Any Taxes in the
nature of a sales or transfer tax, any stock transfer tax, or any
other taxes that may be or may become payable by the Shareholder
including, but not limited to, any taxes resulting from or
ensuing as a consequence of the sale or transfer of the Shares or
the consummation of any other transaction contemplated hereby
shall be paid by the Shareholders and the Shareholders shall
indemnify and hold harmless Purchaser from and against all such
Taxes.
Section 8.5 Governing Law. THIS AGREEMENT AND ITS
VALIDITY, CONSTRUCTION AND PERFORMANCE SHALL BE GOVERNED IN ALL
RESPECTS BY THE LAWS OF THE STATE OF COLORADO WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Section 8.6 Representation by Counsel. Each party and
its counsel cooperated in the drafting and preparation of this
Agreement and the documents referred to herein. Accordingly, any
rule of law or any legal decision that would require
interpretation of any ambiguities in this Agreement against the
party that drafted it is of no application and is hereby
expressly waived by each party.
Section 8.7 Benefit of Parties; Assignment. This
Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors, legal
representatives and permitted assigns. This Agreement may not be
assigned by the Shareholders or Purchaser except with the prior
written consent of the other, which shall not be unreasonably
withheld or delayed. Nothing herein contained shall confer or is
intended to confer on any third party or entity which is not a
party to this Agreement any rights under this Agreement.
Section 8.8 Expenses. Except as specifically provided
otherwise in this Agreement, each party will pay its own expenses
incident to this Agreement and the transactions contemplated
hereby, including legal and accounting fees. Neither of the
Companies shall pay or bear directly or indirectly any expenses
incurred by the Shareholders in connection with this Agreement or
the transactions contemplated hereby.
Section 8.9 Counterparts. This Agreement may be executed
in counterparts, each of which shall be deemed to be an original
instrument and all of which shall constitute one and the same
instrument.
Section 8.10 Headings. The headings in the Sections,
paragraphs, Schedules and Exhibits of this Agreement are inserted
for convenience of reference only and shall not constitute a part
hereof.
Section 8.11 Notices. All notices, requests, demands and
other communications provided for by this Agreement shall be in
writing and shall be deemed to have been given when hand
delivered, when received if sent by telecopier or by same day or
overnight recognized commercial courier service or three business
days after being mailed in any general or branch office of the
United States Postal Service, enclosed in a registered or
certified postpaid envelope, addressed to the address of the
parties stated below or to such changed address as such party may
have fixed by notice:
To the Shareholders: Golden Technologies Company, Inc.
16000 Table Mountain Parkway
Golden, CO 80403
Attention: Jill B.W. Sisson
Telephone: (303) 271-7000
Facsimile: (303) 271-7055
To the Purchaser: Golden Genesis Company
4585 McIntyre Street
Golden, CO 80403
Attention: Dr. John Coors
Telephone: (303) 271-7422
Facsimile: (303) 271-7193
with a copy to: Hogan & Hartson, L.L.P.
1200 17th Street, Suite 1500
Denver, CO 80202
Attention: Steven A. Cohen
Telephone: (303) 899-7324
Facsimile: (303) 899-7333
provided, that any notice of change of address shall be effective
only upon receipt.
Section 8.12 Resolution of Disputes.
(a) Any dispute, claim or controversy arising out of
or relating to this Agreement or the Annexes, Exhibits, Schedules
or other documents or instruments referred to herein or the
breach, termination or validity thereof (a "Dispute") shall be
resolved in accordance with the procedures set forth in this
Section 8.12. These procedures shall be the sole and exclusive
process for the resolution of any such Dispute.
(b) The parties shall attempt in good faith to resolve
any Dispute promptly by negotiation between executives who have
authority to settle the controversy. Any party may give the
other party written notice of any Dispute not resolved in the
normal course of business. Within 20 days after delivery of such
notice, the receiving party shall submit to the other a written
response. The notice and the response shall include (i) a
statement of each party's position and a summary of arguments
supporting that position and (ii) the name and title of the
executive who will represent that party and of any other persons
who will accompany the executive. Within 30 days after delivery
of the disputing party's notice, the executives of both parties
shall meet at a mutually acceptable time and place, and
thereafter as often as they reasonably deem necessary, to resolve
the Dispute. All reasonable requests for information made by one
party to the other shall be honored. The parties shall use their
best efforts to resolve the Dispute within 45 days of the receipt
of the disputing party's notice.
IN WITNESS WHEREOF, Purchaser and the Shareholders have
caused this Agreement to be duly executed on the day and year
first above written.
GOLDEN GENESIS COMPANY
By:_______________________________
Name:___________________________
Title:__________________________
ACX TECHNOLOGIES, INC.
By:_______________________________
Name:___________________________
Title:__________________________
GOLDEN TECHNOLOGIES COMPANY, INC.
By:_______________________________
Name:___________________________
Title:__________________________
