SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)
Addington Resources, Inc.
(Name of Issuer)
Common Stock, par value $1.00
(Title of Class of Securities)
006516108
(CUSIP Number)
Mr. Howard P. Berkowitz (212) 664-0990
HPB Associates, L.P. 888 Seventh Avenue
New York, New York 10106
(Name, address and telephone number of person
authorized to receive notices and communications)
August 4, 1995
(Date of event which requires filing of this statement)
______________________
If the filing person has previously filed a statement
on Schedule 13G to report the acquisition which is the subject of
this Schedule 13D, and is filing this schedule because of Rule
13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the
statement [ ]. (A fee is not required only if the reporting
person: (1) has a previous statement on file reporting
beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent
or less of such class.) (See Rule 13d-7.)
<PAGE>
13D
CUSIP No. 006516108
_____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. HPB Associates, L.P.
OF ABOVE PERSON
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [X]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS
WC
_____________________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER 1,532,288
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER -0-
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER 1,532,288
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER -0-
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON 1,532,288
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11) 9.6%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
CUSIP No. 006516108
_____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. Howard P. Berkowitz
OF ABOVE PERSON
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [X]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS
OO
_____________________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
United States
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER 1,532,288 (all shares are
owned for the account of HPB Associates, L.P.)
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER -0-
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER 1,532,288 (all shares are
owned for the account of HPB Associates, L.P.)
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER -0-
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON 1,532,288 (all shares are
owned for the account of HPB Associates, L.P.)
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11) 9.6%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
CUSIP No. 006516108
_____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. Harold Blumenstein
OF ABOVE PERSON
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [X]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS
_____________________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
United States
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER -0-
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER -0-
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER -0-
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER -0-
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON -0-
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11) 0
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
CUSIP No. 006516108
_____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. James Grosfeld
OF ABOVE PERSON
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [X]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS
_____________________________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [X]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
United States
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER -0-
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER -0-
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER -0-
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER -0-
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON -0-
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11) 0
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON
IN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
This Schedule 13D, initially filed on January 20, 1992, as amended
by Amendment No. 1 filed on April 5, 1995 and Amendment No. 2 filed on July
18, 1995 by HPB Associates, L.P., a Delaware limited partnership (the
"Partnership"), and by Howard P. Berkowitz, the managing partner of the
Partnership, relating to the common stock, par value $1.00 per share (the
"Common Stock"), of ADDINGTON RESOURCES, INC., a Delaware corporation whose
principal executive offices are located at 1500 North Big Run Road, Ashland,
Kentucky 41102 (the "Company") is hereby amended by this Amendment No. 3 to
the Schedule 13D as follows:
Item 2. Identity and Background.
Item 2 is hereby supplemented by the addition of the following:
Mr. Blumenstein's present principal occupation is
as an investor for Paragon Properties Company. The business address of Mr.
Blumenstein is 32400 Telegraph Road, Suite 202, Bingham Farms, Michigan
48025. Mr. Blumenstein is a citizen of the United States.
Mr. Grosfeld's present principal occupation is
as an investor for Real Estate Development and Investment Company,
Incorporated. The business address of Mr. Grosfeld
is 20500 Civic Center Drive, Suite 3000, Southfield, Michigan 48076. Mr.
Grosfeld is a citizen of the United States.
Except as disclosed on Schedule 1 hereto with respect to Mr.
Grosfeld, neither Mr. Blumenstein nor Mr. Grosfeld has, during the last five
years:
A. been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors); or
B. been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and, as a result of such
proceeding, was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or a finding of any violation with respect to
such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 is hereby supplemented by the addition of the following:
The source of funds for the purchase reported by the
Partnership in Item 4 below was the Partnership's capital. The total
amount of funds used by the Partnership to purchase the 577,003
shares of Common Stock (the "New Shares") is $5,193,027.
Item 4. Purpose of Transaction.
Item 4 is hereby supplemented by the addition of the following:
On August 4, 1995, the Company named four new members to its Board
of Directors: Howard P. Berkowitz (Chairman), Richard Ravitch, James Grosfeld
and Harold Blumenstein. Mr. Berkowitz is the managing general partner of the
Partnership, Messrs. Ravitch and Blumenstein are limited partners of the
Partnership and certain members of Mr. Grosfeld's family and certain trusts
affiliated with Mr. Grosfeld are limited partners of the Partnership. With
these changes and the resignation of Robert Addington from the Board of
Directors, the reconstituted Board of Directors consists of eight members:
Larry Addington, Bruce Addington, Jack C. Fisher and Carl R. Whitehouse, plus
the four new members.
Also on August 4, the Partnership acquired the New Shares. In
addition, the Partnership intends to purchase additional shares of Common
Stock pursuant to the Stock Purchase Agreement described below.
The New Shares were purchased on August 4, 1995 from a group
consisting of Larry Addington, Robert Addington and Bruce Addington
(collectively, the "Addingtons"), pursuant to a Stock Purchase Agreement,
dated as of August 4, 1995 (the "Stock Purchase Agreement"), by and among the
Partnership and the Addingtons. The Addingtons are the controlling
stockholders of the Company. A copy of the Stock Purchase Agreement is
attached hereto as Exhibit 1 and is incorporated herein by reference; all
descriptions of the Stock Purchase Agreement (or any provisions thereof) set
forth herein are summaries only and are qualified in their entirety by
reference to the full text of the Stock Purchase Agreement contained in
Exhibit 1 hereto.
The New Shares were purchased by the Partnership for a cash
purchase price of $9.00 per share, or an aggregate purchase price of
$5,193,027. Subject to the satisfaction of certain conditions and Hart-Scott-
Rodino clearance, the Partnership has agreed pursuant to the Stock Purchase
Agreement, to acquire, at a second closing subsequent to August 4, 1995 (the
"Subsequent Closing"), from the Addingtons, an aggregate of 1,422,997
additional shares of Common Stock, for a cash purchase price of $9.00 per
share, or an aggregate purchase price of $12,806,973. Upon the consummation of
the Subsequent Closing, the Partnership and/or its affiliates and general and
limited partners will own 2,955,285 shares of Common Stock, or 18.6% of the
outstanding Common Stock. The purchase price is subject to upward adjustment
of $1 per share if the Partnership disposes of Common Stock on or prior to
August 31, 1997 for a price in excess of $25 per share.
The terms of the Stock Purchase Agreement include certain voting
agreements. The Addingtons agreed that (i) if the number of Addington
Designees (as hereinafter defined) specified below are included as part of the
management slate of nominees for the Board of Directors, they shall vote all
of their Common Stock in favor of the management slate of nominees of the
Board of Directors in each election of directors of the Company; (ii) the
Addingtons shall not, directly or indirectly, solicit, nor participate in the
solicitation of, proxies or consents in opposition to the management slate of
nominees to the Board of Directors provided it includes the number of
Addington Designees specified below, nor may they, directly or indirectly,
solicit, nor participate in the solicitation of, proxies or consents to
increase their representation on the Board of Directors to a number of persons
in excess of the number of Addington Designees contemplated herein (it being
agreed in the Stock Purchase Agreement that Robert Addington and Bruce
Addington would not stand for re-election to the Board of Directors); (iii)
the Addingtons shall not, directly or indirectly, grant proxies for their
shares of Common Stock to third parties, other than to the Board of Directors,
or to persons who agree in writing with the Partnership to vote such shares
consistent with the terms of the Stock Purchase Agreement and except as may be
required by lenders to whom such shares are pledged as collateral in
accordance with the terms of the Stock Purchase Agreement; (iv) the Addingtons
shall not, directly or indirectly, offer, sell or transfer shares of Common
Stock, except (a) to each other; (b) pursuant to the volume limitations of
Rule 144 of the Securities Act of 1933, as amended (whether or not then
applicable as a matter of law); (c) if such sale represents 2% or less of the
then outstanding Common Stock; provided, that Common Stock sold by the
Addingtons in a series of related transactions shall be aggregated for
purposes of this clause (c); (d) pursuant to an underwritten public offering;
(e) pursuant to a bona fide merger or tender offer in respect to the Common
Stock if such merger or tender offer has been approved or not opposed by the
Board of Directors; (f) up to an aggregate of 2,500,000 shares of Common Stock
(excluding any shares of Common Stock sold pursuant to the Stock Purchase
Agreement); (g) pursuant to a bona fide pledge arrangement with one or more
financial institutions and brokerage firms (and any resale by such
institutions and firms pursuant to such pledge); and (h) to any person who
agrees to be bound by such provisions in the Stock Purchase Agreement; and
(v) promptly following the filing with the Securities and Exchange
Commission and distribution to stockholders of Schedule 14F-1, and the
expiration of the waiting period with respect thereto, vote in favor of the
appointment of an additional director designated by the Partnership to the
Board of Directors.
The Partnership agreed that it would recommend inclusion in
management's slate of nominees to the Board of Directors, and vote all of its
Common Stock in favor of, three persons designated by the Addingtons (one of
whom shall be Larry Addington) in each election of directors of the Company
(the "Addington Designees"); provided, that (x) the Partnership shall not be
obligated to recommend inclusion of, or to vote in favor of (i) more than two
Addington Designees if the Addingtons shall then beneficially own less than
3,000,000 shares of Common Stock, (ii) more than one Addington Designee if the
Addingtons shall then beneficially own less than 2,000,000 shares of Common
Stock or (iii) any Addington Designee if the Addingtons shall then
beneficially own less than 1,000,000 shares of Common Stock and (y) provided,
that the number of Addington Designees shall be increased in the event that
the Board of Directors is increased to more than nine, so that the number of
Addington Designees as to which this section of the Stock Purchase Agreement
applies represents that number of directors on the Board of Directors that
most closely approximates the percentage of the fully diluted Common Stock
beneficially owned by the Addingtons.
The covenants described in the preceding two paragraphs continue
until August 31, 1997.
The Stock Purchase Agreement may be terminated (i) by mutual
written consent of the Addingtons, on the one hand, and the Partnership, on
the other hand; (ii) by either the Addingtons or the Partnership if the
Subsequent Closing shall not have occurred on or before September 30, 1995;
(iii) by the Addingtons if the Partnership and its affiliates dispose of 50%
of the Common Stock that they will beneficially own immediately after the
Subsequent Closing; or (iv) by the Addingtons in certain other circumstances.
Despite the provisions in the Stock Purchase Agreement, the
Partnership (i) expressly disclaims being part of a group with any or all of
the Addingtons for the purpose of holding, voting or disposing of Common Stock
and (ii) expressly disclaims beneficial ownership of the Common Stock owned by
any or all of the Addingtons.
The Partnership believes that the Company should focus solely on
its environmental business. The Partnership believes that the Company should
pursue the prompt but prudent sale of the Company's non-environmental
businesses, with the net proceeds from such sales being deployed to expand the
Company's environmental operations.
Item 5. Interest in Securities of the Issuer.
Item 5 is hereby supplemented by the addition of the following:
(a) As of the date of this filing, the Partnership
beneficially owns, within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended, 1,532,288 shares of
the Common Stock or 9.6% of the outstanding shares of Common
Stock (based upon 15,909,801 shares of Common Stock reported to be outstanding
by the Company as of May 2, 1995 in the Company's Quarterly Report on Form 10-
Q for the quarter ended March 31, 1995). None of the other reporting persons
beneficially owns any shares of Common Stock.
(b) The Partnership has the power to vote and dispose
of the 1,532,288 shares of Common Stock beneficially owned by it,
which power may be exercised by its managing partner, Mr.
Berkowitz. None of the other reporting persons has the power to vote and
dispose of shares of Common Stock.
(c) There were no transaction in the Common Stock
effected by the reporting persons during the past 60 days.
(d) Not applicable.
(e) Not applicable.
Item 7. Material to be Filed as Exhibits.
Item 7 is hereby supplemented by the addition of the following:
1. Stock Purchase Agreement, by and among the Partnership, Robert
Addington, Bruce Addington and Larry Addington, dated as of August 4, 1995.
2. Joint Acquisition Statement, dated as of August 11, 1995.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of their
knowledge and belief, the undersigned certify that the
information set forth in this statement is true, complete and
correct.
Dated: August 11, 1995
HPB ASSOCIATES, L.P.
By: /s/ Howard P. Berkowitz
Howard P. Berkowitz,
Managing Partner
/s/ Howard P. Berkowitz
/s/ Harold Blumenstein
/s/ James Grosfeld
<PAGE>
SCHEDULE 1
Certain Litigation
In 1990, the Commodity Future Trading Commission ("CFTC") brought a
civil action against MultiVest Options, Inc. ("MOI") alleging various
violations of the Commodity Exchange Act ("CEA") and certain rules and
regulations of the CFTC. Mr. Grosfeld was the principal stockholder of the
ultimate parent corporation of MOI, but according to Mr. Grosfeld, was never
an officer or director of MOI and did not participate in the day-to-day
conduct of its business. Without admitting or denying the allegations of the
CFTC complaint, MOI consented to the entry of a permanent injunction and
appointment of a receiver. MOI discontinued its business operations in 1990.
Mr. Grosfeld was not specifically named in the CFTC proceeding or in the
injunction related thereto. Subsequently, in 1990 certain individuals who had
previously purchased and sold commodity options through MOI brought a class
action lawsuit against the parent and affiliated companies of MOI and Mr.
Grosfeld alleging that the defendants, among other things, violated the
antifraud provisions of the CEA and asserting other federal and state law
claims. Mr. Grosfeld, who believes that the litigation is without merit, has
denied all such allegations and is vigorously defending such litigation.
STOCK PURCHASE AGREEMENT
by and among
HPB ASSOCIATES, L.P.,
ROBERT ADDINGTON,
BRUCE ADDINGTON
and
LARRY ADDINGTON
As of August 4, 1995
<PAGE>
STOCK PURCHASE AGREEMENT
AGREEMENT, dated as of August 4, 1995 (the "Agreement"), by and
among HPB Associates, L.P., a Delaware limited partnership (the "Buyer"),
Robert Addington, Bruce Addington and Larry Addington (Robert, Bruce and Larry
Addington are known together as the "Sellers" or the "Addington Group").
W I T N E S S E T H :
WHEREAS, Robert Addington desires to sell to the Buyer and the
Buyer desires to purchase from Robert Addington an aggregate of 500,000 shares
of common stock, $.01 par value (the "ARI Common Stock"), of Addington
Resources, Inc., a Delaware corporation ("ARI") currently owned by Robert
Addington (the "Robert Addington Shares");
WHEREAS, Bruce Addington desires to sell to the Buyer and the
Buyer desires to purchase from Bruce Addington an aggregate of 500,000 shares
of the ARI Common Stock currently owned by Bruce Addington (the "Bruce
Addington Shares");
WHEREAS, Larry Addington desires to sell to the Buyer and the
Buyerdesires to purchase from Larry Addington an aggregate of 1,000,000 shares
of the ARI Common Stock currently owned by Larry Addington (the "Larry
Addington Shares", together with the "Robert Addington Shares" and the "Bruce
Addington Shares", referred to as the "Shares");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARES
Section 1.01. General. (a) On the terms and subject to the
conditions set forth in Article IV of this Agreement, on the Initial Closing
Date (as defined in Section 1.03), (a) Robert Addington agrees to sell,
transfer, assign, convey and deliver to the Buyer, and the Buyer agrees to
purchase, acquire and accept from Robert Addington 200,000 of the Robert
Addington Shares (the "Initial Robert Addington Shares"), (b) Bruce Addington
agrees to sell, transfer, assign, convey and deliver to the Buyer, and the
Buyer agrees to purchase, acquire and accept from Bruce Addington 177,003 of
the Bruce Addington Shares (the "Initial Bruce Addington Shares") and (c)
Larry Addington agrees to sell, transfer, assign, convey and deliver to the
Buyer, and the Buyer agrees topurchase, acquire and accept from Larry
Addington 200,000 of the Larry Addington Shares (the "Initial Larry Addington
Shares").
(b) On the terms and subject to the conditions set forth in
Article V of this Agreement, on the Subsequent Closing Date (as defined in
Section 1.03(b)), (a) Robert Addington agrees to sell, transfer, assign,
convey and deliver to the Buyer, and the Buyer agrees to purchase, acquire and
accept from Robert Addington 300,000 of the Robert Addington Shares (the
"Subsequent Robert Addington Shares"), (b) Bruce Addington agrees to sell,
transfer, assign, convey and deliver to the Buyer, and the Buyer agrees to
purchase, acquire and accept from Bruce Addington 322,997 of the Bruce
Addington Shares (the "Subsequent Bruce Addington Shares") and (c) Larry
Addington agrees to sell, transfer, assign, convey and deliver to the Buyer,
and the Buyer agrees to purchase, acquire and accept from Larry Addington
800,000 of the Larry Addington Shares (the "Subsequent Larry Addington
Shares").
Section 1.02. Purchase Price. (a) The consideration for the
Robert Addington Shares shall be Nine Dollars ($9.00) per Share, subject to
the purchase price adjustment provided in Section 1.02(d) (the "Robert
Addington Purchase Price").
(b) The consideration for the Bruce Addington Shares shall be
Nine Dollars ($9.00) per Share, subject to the purchase price adjustment
provided in Section 1.02(d) (the "Bruce Addington Purchase Price").
(c) The consideration for the Larry Addington Shares shall be
Nine Dollars ($9.00) per Share, subject to the purchase price adjustment
provided in Section 1.02(d) (the "Larry Addington Purchase Price", known
together with the Robert Addington Purchase Price and the Bruce Addington
Purchase Price as the "Purchase Price").
(d) The Purchase Price shall be subject to adjustment as
follows: if, at any time, or times, during the term of this Agreement, the
Buyer or its affiliates, general or limited partners dispose of any of the
Shares and the consideration received by the Buyer or such affiliates, general
or limited partners in connection with such disposition equals or exceeds
$25.00 per Share, then the Purchase Price shall be increased by the product of
$1.00 and the number of Shares so sold. The Buyer shall, concurrently with
any such disposition of Shares, pay (or in the case of a disposition buy its
affiliates, general or limited partners, cause to be paid), to Seller pro
rata, based on the number of Shares sold by each of the Sellers pursuant to
this Agreement, the amount of such increase in the Purchase Price. For
purposes of this Section, (i) until the aggregate number of shares of ARI
Common Stock disposed of by the Buyer or such affiliates, general or limited
partners after the Subsequent Closing equals or exceeds 2,000,000, any
disposition of ARI Common Stock shall be deemed to be a disposition of Shares;
(ii) any dispositions of ARI Common Stock following the disposition by the
Buyer and its general and limited partners of ARI Common Stock in excess of
2,000,000 Shares shall not be deemed a disposition of Shares; and (iii) a
distribution or assignment by the Buyer of ARI Common Stock to an affiliate of
the Buyer or to any of its general or limited partners which is followed by a
sale of ARI Common Stock by that affiliate or general or limited partner
during the term of this Agreement, shall be deemed to be a sale of ARI Common
Stock subject to the provisions of this Section 1.02(d) when the sale by such
affiliate, general or limited partner occurs.
Section 1.03. Closings and Payments of Purchase Price. (a) (i)
The Robert Addington Purchase Price for the Initial Robert Addington Shares
shall be paid in full by the Buyer to Robert Addington at a closing (the
"Initial Closing") to be held on the date hereof (or at such other time as the
Buyer and the Sellers may agree) (the "Initial Closing Date"), and (ii) the
Robert Addington Purchase Price for the Subsequent Robert Addington Shares
shall be paid in full by the Buyer to Robert Addington at a closing (the
"Subsequent Closing") to be held on the fifth business day following the
satisfaction of the conditions specified in Article V (or at such other time
as the Buyer and the Sellers may agree) (the "Subsequent Closing Date"), in
each case by wire transfer of immediately available funds by the Buyer to
Robert Addington (or as directed by Robert Addington) and Robert Addington
shall deliver to the Buyer the certificate or certificates representing the
Initial Robert Addington Shares or the Subsequent Robert Addington Shares, as
the case may be, free and clear of all liens, claims and encumbrances,
together with stock powers duly endorsed by Robert Addington in form
sufficient to permit registration of the shares in the name of the Buyer on
the stock transfer books of ARI.
(b) (i) The Bruce Addington Purchase Price for the Initial
Bruce Addington Shares shall be paid in full by the Buyer to Bruce Addington
at the Initial Closing on the Initial Closing Date and (ii) the Bruce
Addington Purchase Price for the Subsequent Bruce Addington Shares shall be
paid in full at the Subsequent Closing on the Subsequent Closing Date, in each
case, by wire transfer of immediately available funds by the Buyer to Bruce
Addington (or as directed by Bruce Addington) and Bruce Addington shall
deliver to the Buyer the certificate or certificates representing the Initial
Bruce Addington Shares or the Subsequent Bruce Addington Shares, as the case
may be, free and clear of all liens, claims and encumbrances, together with
stock powers duly endorsed by Bruce Addington in form sufficient to permit
registration of such shares in the name of the Buyer on the stock transfer
books of ARI.
(c) (i) The Larry Addington Purchase Price for the Initial
Larry Addington Shares shall be paid in full by the Buyer to Larry Addington
at the Initial Closing on the Initial Closing Date and (ii) the Larry
Addington Purchase Price for the Subsequent Larry Addington Shares shall be
paid in full at the Subsequent Closing on the Subsequent Closing Date, in each
case, by wire transfer of immediately available funds by the Buyer to Larry
Addington (or as directed by Larry Addington) and Larry Addington shall
deliver to the Buyer the certificate or certificates representing the Initial
Larry Addington Shares or the Subsequent Larry Addington Shares, as the case
may be, free and clear of all liens, claims and encumbrances, together with
stock powers duly endorsed by Larry Addington in form sufficient to permit
registration of such shares in the name of the Buyer on the stock transfer
books of ARI.
(d) Each adjustment to the Purchase Price, if any, becoming
payable after the Initial Closing shall be paid to the Sellers in full on the
date due by wire transfer of immediately available funds (or as otherwise
directed by the Sellers).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE ADDINGTON GROUP
Section 2.01. Representations and Warranties of each of the
Sellers.
Each of the Sellers severally represents and warrants to the Buyer as follows:
(a) Authority. Such Seller has all requisite power and
authority to enter into this Agreement and to perform its obligations
hereunder, including to sell, transfer and assign to the Buyer his right,
title and interest in and to his respective Shares. No further action on the
part of such Seller is necessary to authorize this Agreement and the
performance of the transactions contemplated herein. The Agreement has been
duly executed and delivered by such Seller and, assuming due authorization,
execution and delivery by the Buyer, constitutes the valid and binding
agreement of such Seller, enforceable against such Seller in accordance with
its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting the rights of creditors generally and to general principles of
equitable relief (regardless of whether enforcement is sought in a proceeding
at law or in equity).
(b) No Conflict. Except as set forth in Schedule 2.01 hereto,
neither the execution and delivery of this Agreement nor the performance of
the transactions contemplated herein by such Seller will, with or without the
giving of notice or the lapse of time or both, (i) conflict with or violate,
or constitute a default or a breach under, or result in the acceleration or
termination of (or entitle any person or entity to accelerate or terminate)
any obligation under any mortgage, indenture, deed of trust, lease, contract,
agreement, license or other instrument or any order, award, writ, decree,
judgment or ruling to which such Seller is subject or to which any of the
property of such Seller is bound, or result in the creation of any lien,
security interest, pledge, charge, option, claim, mortgage, lease, easement,
covenant or other restriction or encumbrance of any kind upon any of the
assets of such Seller or the loss of any license or other contractual right
with respect thereto, or (ii) contravene any law, rule or regulation
applicable to such Seller or any of his assets.
(c) Consents. There are no consents, approvals, declarations,
notices, registrations, applications, filings, permits, licenses or
authorizations required under any law, rule, regulation, agreement or
instrument required for such Seller to consummate the sale of his respective
Shares (other than such consents which have been obtained and are in full
force and effect), other than with respect to the sale of shares at the
Subsequent Closing as required under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations thereunder
(the "HSR Act"). This Agreement has been approved by the Board of Directors
of ARI so as to render inapplicable to the Buyer the provisions of Section 203
of the Delaware General Corporation Law.
(d) Title to the Shares. Except as set forth on Schedule 2.01
hereto, such Seller has good title, beneficially and of record, to his
respective Shares listed free and clear of all security interests, liens,
claims, options, encumbrances and other contractual restrictions of any kind
(including with respect to the voting thereof). The transfer and delivery of
such Shares by such Seller to the Buyer as contemplated by this Agreement will
transfer good and marketable title to such Shares to the Buyer, free and clear
of all security interests, liens, claims, options, encumbrances and other
contractual restrictions of any kind (including with respect to the voting
thereof).
(e) Finders. Neither such Seller nor any party acting on its
behalf has paid or become obligated to pay any fee, commission or other like
payments to any broker, finder or intermediary for or on account of the
transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BUYER
Section 3.01. Representations and Warranties of Buyer. The
Buyer represents and warrants to the Sellers as follows:
(a) Organization. The Buyer is a limited partnership duly
organized, validly existing and in good standing under the laws of the State
of Delaware.
(b) Authority. The Buyer has all requisite power and authority
to enter into this Agreement and to perform its obligations hereunder. The
execution and delivery by the Buyer of this Agreement and the performance of
the transactions contemplated herein have been duly authorized by the Buyer
and no further action on the part of the Buyer is necessary to authorize this
Agreement and the performance of the transactions contemplated herein. This
Agreement has been duly executed and delivered by the Buyer and, assuming due
authorization, execution and delivery by the Sellers, constitutes the valid
and binding agreement of the Buyer, enforceable against the Buyer in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting the rights of creditors generally and general
principles of equitable relief (regardless or whether enforcement is sought in
a proceeding at law or in equity).
(c) No Conflict. Neither the execution and delivery of this
Agreement nor the performance of the transactions contemplated hereby by the
Buyer will, with or without the giving of notice or the lapse of time or both,
(i) conflict with or violate any of the provisions of the agreement of limited
partnership of the Buyer, (ii) conflict with or violate, or constitute a
default or a breach under, or result in the acceleration or termination of (or
entitle any person or entity to accelerate or terminate) any obligation under
any mortgage, indenture, deed of trust, lease, contract, agreement, license or
other instrument or any order, award, writ, decree, judgment or ruling to
which the Buyer is subject or to which any of its property is bound, or (iii)
contravene any law, rule or regulation applicable to the Buyer.
(d) Consents. There are no consents, approvals, declarations,
notices, registrations, applications, filings, permits or licenses or
authorizations required under any law, rule, regulation, agreement or
instrument required for the Buyer to consummate the purchase of the Shares,
other than with respect to the purchase of Shares at the Subsequent Closing,
as required under the HSR Act.
(e) Finders. Neither the Buyer nor any party acting on its
behalf has paid or become obligated to pay any fee, commission or other like
payments to an broker, finder or intermediary for or on account of the
transactions contemplated by this Agreement.
(f) Available Funds. The Buyer has all funds available to
consummate the purchase of the Shares.
(g) Qualified Institutional Buyer. The Buyer is a qualified
institutional buyer, as such term is defined in Rule 144A of the Securities
Act of 1933, as amended (the "Securities Act"), and acknowledges that the
Sellers may rely on the exemption provided by Rule 144A under the Securities
Act in connection with the sale of Shares contemplated hereby.
(h) Investment Intent; Investigation. The Buyer is purchasing
the Shares for its own account and not with a view to any resale or
distribution, in whole or in part, in violation of the Securities Act,
subject, nevertheless to an understanding that disposition of its property
shall at all times be and remain within its control. The Buyer has conducted
its own investigation of ARI and has had an opportunity to ask ARI management
all questions relevant to its investment decision. The Buyer, in making its
investment decision, is not relying on any representations or warranties of
the Addington Group or any information provided by the Addington Group, except
as expressly set forth herein.
(i) Beneficial Ownership. The Buyer beneficially owns on the
date hereof 955,285 shares of the outstanding ARI Common Stock (the "HPB
Shares"). On the date of the Subsequent Closing, the Buyer, its general
partners or limited partners will beneficially own the HPB Shares, the Initial
Robert Addington Shares, the Initial Bruce Addington Shares and the Initial
Larry Addington Shares.
ARTICLE IV
CONDITIONS TO THE INITIAL CLOSING
Section 4.01. Obligation of the Buyer. The obligation of the
Buyer to consummate the transactions contemplated by this Agreement at the
Initial Closing shall be subject to the satisfaction of the Buyer of the
following conditions (any or all of which may be waived in its sole
discretion):
(a) The Sellers' Warranties and Performance. The
representations and warranties of each of the Sellers herein contained shall
be true in all material respects as of and at the time of the Initial Closing;
each of the Sellers shall have performed in all material respects all
obligations and complied in all material respects with all covenants and other
agreements, required of them by this Agreement to be performed or complied
with by them at or prior to the Initial Closing Date.
(b) No Actions. On the Initial Closing Date, there shall be no
injunction, restraining order or decree of any nature of any governmental
authority of competent jurisdiction that is in effect that has a material
adverse effect on the ability of the parties hereto to consummate the
transactions contemplated by this Agreement.
(c) Board of Directors. The Board of Directors of ARI shall
have been reconstituted to consist of eight members, four of whom shall be
current members of the Board of Directors and four of whom shall consist of
persons not currently on the Board of Directors who shall be persons
acceptable to Buyer, with Howard P. Berkowitz appointed as Chairman of the
Board.
(d) Board Resolutions. The Buyer shall have received a
certified copy of a resolution of the Board of Directors of ARI (i) approving
the purchase of the Shares pursuant to this Agreement and (ii) evidencing the
actions contemplated by Section 4.01(c).
Section 4.02. Obligation of the Sellers. The obligations of the
Sellers to consummate the transactions contemplated by this Agreement at the
Initial Closing shall be subject to the satisfaction of the Sellers of the
following conditions (any or all of which may be waived at their discretion):
(a) The Buyer's Warranties and Performance. The
representations and warranties of the Buyer herein contained shall be true in
all material respects as of and at the time of the Initial Closing; the Buyer
shall have performed in all material respects all obligations and complied in
all material respects with all covenants and other agreements required of it
by this Agreement to be performed or complied with by it at or prior to the
Initial Closing Date.
(b) No Actions. On the Initial Closing Date, there shall be no
injunction, restraining order or decree of any nature of any governmental
authority of competent jurisdiction that is in effect that has a material
adverse effect on the ability of the parties hereto to consummate the
transactions contemplated by this Agreement.
(c) Qualified Institutional Buyer Certificate. The Buyer shall
have delivered to the Sellers a certificate executed by its Managing Partner
certifying that as of the Initial Closing Date, the Buyer is a qualified
institutional buyer, as such term is defined in Rule 144A promulgated under
the Securities Act, which certificate shall address the matters listed in
paragraph (d)(1)(iv) of that Rule.
ARTICLE V
CONDITIONS TO THE SUBSEQUENT CLOSING
Section 5.01. Obligation of the Buyer. The obligation of the
Buyer to consummate the transactions contemplated by this Agreement at the
Subsequent Closing shall be subject to the satisfaction of the Buyer of the
following conditions (any or all of which may be waived in its sole
discretion):
(a) The Sellers' Warranties and Performance. The
representations and warranties of each of the Sellers herein contained shall
be true in all material respects as of and at the time of the Subsequent
Closing; each of the Sellers shall have performed in all material respects all
obligations and complied in all material respects with all covenants and other
agreements, required of him by this Agreement to be performed or complied with
by him at or prior to the Subsequent Closing Date; and each Seller shall have
delivered to the Buyer a certificate to such effect.
(b) No Actions. On the Subsequent Closing Date, there shall be
no injunction, restraining order or decree of any nature of any governmental
authority of competent jurisdiction that is in effect that has a material
adverse effect on the ability of the parties hereto to consummate the
transactions contemplated by this Agreement.
(c) HSR Act. The applicable waiting period, together with any
extensions thereof, under the HSR Act, shall have expired or been terminated.
Section 5.02. Obligation of the Sellers. The obligations of the
Sellers to consummate the transactions contemplated by this Agreement at the
Subsequent Closing shall be subject to the satisfaction of the Sellers of the
following conditions (any or all of which may be waived at their discretion):
(a) The Buyer's Warranties and Performance. The
representations and warranties of the Buyer herein contained shall be true in
all material respects as of and at the time of the Subsequent Closing; the
Buyer shall have performed in all material respects all obligations and
complied in all material respects with all covenants and other agreements
required of it by this Agreement to be performed or complied with by it at or
prior to the Subsequent Closing Date; and the Buyer shall have delivered to
the Sellers a certificate to such effect.
(b) No Actions. On the Subsequent Closing Date, there shall be
no injunction, restraining order or decree of any nature of any governmental
authority of competent jurisdiction that is in effect that has a material
adverse effect on the ability of the parties hereto to consummate the
transactions contemplated by this Agreement.
(c) Qualified Institutional Buyer Certificate. The Buyer shall
have delivered to the Sellers an updated certificate regarding the matters set
forth in Section 4.02(c)
(d) HSR Act. The applicable waiting period, together with any
extension thereof, under the HSR Act, shall have expired or been terminated.
ARTICLE VI
OTHER AGREEMENTS
Section 6.01. Regulatory Filings; Consents. The Sellers and the
Buyer agree to cooperate and promptly (i) prepare and file with the Federal
Trade Commission and the Department of Justice the Notification and Report
Form for Certain Mergers and Acquisitions, as required under the HSR Act with
respect to the sale and purchase of the Shares at the Subsequent Closing, (ii)
prepare and file with the Securities and Exchange Commission and distribute to
ARI stockholders a Schedule 14 F-1 and (iii) prepare and file a Proxy
Statement for the 1995 Annual Meeting of Stockholders (or a special meeting in
lieu thereof) promptly following the Subsequent Closing.
Section 6.02. Covenants of the Addington Group. Provided that the
purchases contemplated by Section 1.01(a) have been consummated on the Initial
Closing Date, and so long as the Buyer is in compliance with Section 6.03 each
member of the Addington Group agrees that:
(a) if the number of Addington Designees (as hereinafter defined)
specified in Section 6.03 are included as part of the management slate of
nominees for the ARI Board of Directors, each member of the Addington Group
shall vote all of his ARI Common Stock in favor of the management slate of
nominees of the Board of Directors of ARI in each election of directors of
ARI;
(b) no member of the Addington Group shall, directly or indirectly,
solicit, nor participate in the solicitation of, proxies or consents in
opposition to the management slate of nominees to the Board of Directors of
ARI provided it includes the number of Addington Designees specified in
Section 6.03), nor may they, directly or indirectly, solicit, nor participate
in the solicitation of, proxies or consents to increase the representation of
the Addington Group on the Board of Directors of ARI to a number of persons in
excess of the number of Addington Designees contemplated in Section 6.03 (it
being agreed that Robert Addington and Bruce Addington will not stand for
re-election to the Board of Directors of ARI);
(c) no member of the Addington Group shall, directly or indirectly,
grant proxies for his shares of ARI Common Stock to third parties, other than
to the Board of Directors of ARI, or to persons who agree in writing with
Buyer to vote such shares consistent with the terms of this Agreement and
except as may be required by lenders to whom such shares are pledged as
collateral in accordance with 6.02(d)(vi);
(d) no member of the Addington Group shall, directly or indirectly,
offer, sell or transfer shares of ARI Common Stock, except (i) to another
member of the Addington Group; (ii) pursuant to the volume limitations of Rule
144 of the Securities Act of 1933, as amended (whether or not then applicable
as a matter of law); (iii) if such sale represents 2% or less of the then
outstanding ARI Common Stock; provided, that ARI Common Stock sold by the
Addington Group in a series of related transactions shall be aggregated for
purposes of this clause (iii); (iv) pursuant to an underwritten public
offering; (v) pursuant to a bona fide merger or tender offer in respect to the
ARI Common Stock if such merger or tender offer has been approved or not
opposed by the Board of Directors of ARI; (vi) up to an aggregate (with
respect to all member of the Addington Group considered as a whole) of
2,500,000 shares of ARI Common Stock (excluding the Shares sold pursuant to
this Agreement); (vii) pursuant to a bona fide pledge arrangement with one or
more financial institutions and brokerage firms (and any resale by such
institutions and firms pursuant to such pledge); and (viii) to any person who
agrees to be bound by the provisions of this Section 6.02; and
(e) promptly following the filing with the Securities and Exchange
Commission and distribution to stockholders of the Schedule 14F-1, and the
expiration of the waiting period with respect thereto, vote in favor of the
appointment of an additional director designated by the Buyer to the Board of
Directors of ARI.
Section 6.03. Covenants of the Buyer. Provided that the purchases
contemplated by Section 1.01(a) have been consummated on the Initial Closing
Date, the Buyer agrees that it shall recommend inclusion in management's slate
of nominees to the Board of Directors, and vote all of its ARI Common Stock in
favor of, three persons designated by the Addington Group (one of whom shall
be Larry Addington) in each election of directors of ARI (the "Addington
Designees"); provided, that (x) Buyer shall not be obligated to recommend
inclusion of, or to vote in favor of, (i) more than two Addington Designees if
the Addington Group shall then beneficially own less than 3,000,000 shares of
ARI Common Stock, (ii) more than one Addington Designee if the Addington Group
shall then beneficially own less than 2,000,000 shares of ARI Common Stock or
(iii) any Addington Designee if the Addington Group shall then beneficially
own less than 1,000,000 shares of ARI Common Stock and (y) provided, that the
number of Addington Designees shall be increased in the event that the Board
of Directors is increased to more than nine, so that the number of Addington
Designees as to which this Section 6.03 applies represents that number of
directors on the ARI Board of Directors that most closely approximates the
percentage of the fully diluted ARI Common Stock beneficially owned by the
Sellers.
Section 6.04. Term. The covenants and agreements in 6.02 and 6.03
this Article V will continue in full force and effect until August 31, 1997.
Section 6.05. Releases. Provided that the purchases contemplated
by Section 1.01(a) have been consummated:
(a) the Buyer for itself and its partners and its employees hereby (i)
agrees not to commence litigation against any member of the Addington Group
and agrees not to commence a shareholder derivative action on behalf of ARI
against any member of the Addington Group and (ii) also releases the Addington
Group and their heirs, executors, administrators and assigns from all actions,
causes of action, suits, debts, dues, sums of money, accounts, bills,
contracts, controversies, agreements, promises, damages, claims, and demands
whatsoever, in law or equity, which any of them have, ever had, or might have
against any of the Addington Group (either individually or in any of their
capacities in respect of ARI or its subsidiaries) in the case of either clause
(i) or (ii) by reason of any matter, up to the date of this Agreement; and
(b) the Addington Group hereby releases the Buyer, its partners and
employees and their respective successors and assigns (the "Buyer Group") from
all actions, causes of action, suits, debts, dues, sums of money, accounts,
bills, contracts, controversies, agreements, promises, damages, claims, and
demands whatsoever, in law or equity, which against the Buyer Group, the
Addington Group and its successors or assigns ever had, have or might have by
reason of any matter, up to the date of this Agreement.
ARTICLE VII
TERMINATION OF AGREEMENT
Section 7.01. Termination. This Agreement may be terminated at
any time:
(a) by mutual written consent of the Addington Group, on the
one hand, and the Buyer on the other hand; or
(b) by either the Addington Group, on the one hand, or the
Buyer, on the other hand, if the Subsequent Closing shall not have occurred on
or before September 30, 1995 (or such later date as may be mutually agreed to
in writing by the parties hereto); provided that no party that shall then be
in breach of its obligations under this Agreement shall be entitled to
terminate this Agreement pursuant to this Section 7.01(b); or
(c) by the Addington Group, if the Buyer, its affiliates,
general partners or limited partners dispose of 50% or more of the ARI Common
Stock that they will beneficially own immediately after the Subsequent
Closing; or
(d) by the Addington Group, at any time any member of the Buyer
Group violates Section 6.05 of this Agreement.
Section 7.02. Automatic Termination. This Agreement shall
automatically terminate on August 31, 1997.
Section 7.03. Effect of Termination. Upon termination of this
Agreement pursuant to Section 7.01 or Section 7.02 hereof, this Agreement and
the parties' obligations hereunder shall become null and void and have no
further force or effect; provided, that nothing herein shall relieve any party
from liability for its willful breach of this Agreement; and provided,
further, that the obligations set forth in Section 6.05 shall survive the
termination of this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Survival of Representations and Warranties. All
representations, warranties and agreements in this Agreement shall survive
each of the Initial Closing and the Subsequent Closing.
Section 8.02 Expenses. All fees, commissions and other expenses
incurred by any party hereto in connection with the negotiation, preparation
and execution of this Agreement and the consummation of the transactions
contemplated hereby, including the fees and expenses of their respective
counsel, shall be borne by the party incurring such fee or expense.
Section 8.03 Notices. Any notice or other communication
required or that may be given hereunder shall be in writing and shall be
delivered personally, telecopied or sent by certified, registered, or express
mail, postage prepaid, to the parties at the following addresses or at such
other addresses as shall be specified by the parties by like notice, and shall
be deemed given when so delivered personally, telecopied or if mailed, three
days after the date of mailing, as follows:
(i) if to Robert Addington:
c/o Addington Resources, Inc.
Route 180
Big Run Road
Ashland, Kentucky 41101
Telephone: (606) 928-3433
Telecopier: (606) 928-0450
(ii) if to Bruce Addington:
c/o Addington Resources, Inc.
Route 180
Big Run Road
Ashland, Kentucky 41101
Telephone: (606) 928-3433
Telecopier: (606) 928-0450
(iii) if to Larry Addington:
c/o Addington Resources, Inc.
Route 180
Big Run Road
Ashland, Kentucky 41101
Telephone: (606) 928-3433
Telecopier: (606) 928-0450
(iv) if to HPB Associates, L.P.:
HPB Associates, L.P.
888 Seventh Avenue
New York, NY 10106
Attention: Howard P. Berkowitz
Telephone: (212) 664-0990
Telecopier: (212) 757-0577
Section 8.04 Entire Agreement. This Agreement (together with
any exhibits and schedules hereto) constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersedes all prior
contracts, agreements, undertakings and understandings, express or implied,
written or oral, between the parties, or any of them, with respect to the
subject matter hereof and, except as otherwise expressly provided herein, is
not intended to confer upon any other person any rights or remedies hereunder.
Section 8.05 Waivers and Amendments. This Agreement may be
amended or modified and the terms and conditions hereof may be waived, only by
a written instrument signed by the parties hereto or, in the case of a waiver,
by the party waiving compliance.
Section 8.06 Governing Law. This Agreement shall be governed
by, and construed and enforced in accordance with and subject to, the laws of
the State of Delaware, without regard to principles of conflicts of laws.
Section 8.07 Benefit; Binding Effect. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors. This Agreement may not be assigned by the Buyer
without the express written consent of the Addington Group (provided, that the
Buyer may assign a portion of its rights to purchase Shares to its affiliates,
general partners or limited partners, but no such assignment shall relieve the
Buyer from any of its obligations hereunder), and may not be assigned by any
party without the express written consent of all other parties.
Section 8.08 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original but all of
which taken together shall constitute one and the same instrument.
Section 8.09 Headings. The headings in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
HPB ASSOCIATES, L.P.
By: /s/ Howard P. Berkowitz
Name: Howard P. Berkowitz
Title: Managing General
Partner
/s/ Robert Addington
Robert Addington
/s/ Bruce Addington
Bruce Addington
/s/ Larry Addington
Larry Addington<PAGE>
EXHIBIT 2
JOINT ACQUISITION STATEMENT
PURSUANT TO RULE 13-d-1(f)(1)
The undersigned acknowledge and agree that the foregoing Amendment
No. 3 to the statement on Schedule 13D is filed on behalf of each of the
undersigned and that all subsequent amendments to this Amendment No. 3 to the
statement on Schedule 13D shall be filed on behalf of each of the undersigned
without the necessity of filing additional joint acquisition statements. The
undersigned acknowledge that each shall be responsible for the timely filing
of such amendments, and for the completeness and accuracy of the information
concerning him or it contained therein, but shall not be responsible for the
completeness or accuracy of the information concerning the other, except to
the extent that he or it knows or has reason to believe that such information
is inaccurate.
Dated: August 11, 1995
HPB ASSOCIATES, L.P.
By: /s/ Howard P. Berkowitz
Howard P. Berkowitz,
Managing Partner
/s/ Howard P. Berkowitz
Howard P. Berkowitz
/s/ Harold Blumenstein
Harold Blumenstein
/s/ James Grosfeld
James Grosfeld
