Ready Mix, Inc. Phoenix, AZ 85018 March 11, 2009
Exhibit
99.2
Ready
Mix, Inc.
0000 Xxxx
Xxxxxx Xxxx,
Xxxxxxx,
XX 00000
March 11,
0000
Xxxxxx
Xxxxxx Xxxxxx Corp.
c/o
Insight Equity Management Company LLC
0000
Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Gentlemen:
In order
to facilitate Meadow Valley Parent Corp., a Delaware corporation (“Meadow Valley”), and its
affiliates and each of their respective principals, officers, directors,
employees, subsidiaries, agents and advisors, including, without limitation,
attorneys, accountants, consultants, lenders, bankers and financial advisors (to
the extent such entities or persons receive Confidential Information (as defined
below) pursuant to this agreement, the “Representatives”), undertaking
an evaluation of potential transactions (each, a “Potential Transaction”) with
or related to Ready Mix, Inc., a Nevada corporation (the “Company”), Meadow Valley and
the Company hereby acknowledge and agree by signing below that:
1. Confidentiality.
(a) In
connection with an evaluation of such a Potential Transaction, the Company shall
promptly furnish to Meadow Valley and its Representatives such financial,
operational and other confidential, non-public information as Meadow Valley and
its Representatives may reasonably request. All such (i) written
information (including any writing in electronic format) so furnished by the
Company from and after the date hereof that is expressly marked as
“Confidential” and (ii) oral information so furnished by the Company from and
after the date hereof that is verbally identified as “Confidential” and
subsequently confirmed in writing as “Confidential Information” within five days
of disclosing the same and (iii) any analyses, compilations, studies or other
documents or records prepared by Meadow Valley and its Representatives to the
extent that such analyses, compilations, studies, documents or records contain
any information referenced in clause (i) or (ii) above, is hereinafter referred
to as the “Confidential
Information.” The Company shall also provide Meadow Valley and
its Representatives with reasonable access to its officers, directors,
employees, customers, suppliers, independent accountants, legal counsel and
other advisors and consultants in connection with evaluating a Potential
Transaction.
Meadow
Valley Parent Corp.
March 11,
2009
Page 2 of
5
(b) The
parties hereto agree that notwithstanding the foregoing, Confidential
Information, as defined above, does not include information that (i) at the time
of disclosure by the Company to Meadow Valley or its Representatives is, or
thereafter becomes, generally available to the public or within the industries
in which the Company or Meadow Valley or its Representatives conduct business,
other than as a result of a breach by Meadow Valley of its obligations under
this agreement, (ii)prior to or at the time of disclosure by the Company to
Meadow Valley or its Representatives hereunder, (A) was already in the
possession of or available to Meadow Valley or its Representatives, or was
developed by Meadow Valley or its Representatives from information then in its
or their possession by the application of information or techniques in its or
their possession or (B) was generally available to the public, or (iii) at the
time of disclosure by the Company to Meadow Valley or its Representatives or
thereafter, is obtained by Meadow Valley or its Representatives from a third
party whom Meadow Valley or its Representatives reasonably believes to be in
possession of the information not in violation of any
contractual obligation to the Company with respect to that
information.
(c) Meadow
Valley, shall, and shall cause its Representatives to, maintain the
confidentiality of the Confidential Information for a period of 18 months from
and after the date of receiving the same and shall disclose the Confidential
Information during such 18-month period only as authorized in writing by the
Company or as required by law, rule or regulation, or by order of a governmental
authority or court of competent jurisdiction. Notwithstanding the
foregoing, if Meadow Valley or any of its Representatives is required or
requested to provide any such Confidential Information as described in the
preceding sentence, Meadow Valley agrees that it will provide the Company with
prompt notice of such request or requirement in order to enable the Company to
seek an appropriate protective order or other remedy, or to consult with Meadow
Valley with respect to Meadow Valley or its Representatives taking steps (at the
Company’s sole expense) to resist or narrow the scope of such request or legal
process. In the event no such protective order or remedy is sought or
obtained, or the Company waives compliance with the terms of this Section 1(c),
Meadow Valley will furnish only that portion of such Confidential Information
which it is advised by its counsel is legally required or
appropriate.
(d) Meadow
Valley acknowledges that it is aware and shall advise its Representatives that
the United States securities laws prohibit any person who has material nonpublic
information about a company from purchasing or selling securities of such
company in violation of applicable law, or from communicating such information
to any other person under circumstances in which it is reasonably foreseeable
that such a person is likely to purchase or sell such securities in violation of
applicable law.
(e) Each
of the parties hereto acknowledge and agree that either party may file a copy of
this agreement with the Securities Exchange Commission.
2. Beneficiaries. This
agreement shall inure to the sole and exclusive benefit of Meadow Valley and the
Company and their respective successors and permitted assigns. No
third party shall be deemed a beneficiary of the terms hereof. The
obligations and liabilities under this agreement shall be binding upon Meadow
Valley and the Company and their respective successors and permitted
assigns.
Meadow
Valley Parent Corp.
March 11,
2009
Page 3
of 5
3. Governing Law.
This agreement shall be governed by and construed in accordance with the laws of
the State of Delaware applicable to contracts executed and to be wholly
performed therein without giving effect to its conflicts of laws principles or
rules.
4. Amendments. This
agreement may be modified or amended, or its provisions waived, only by a
writing signed by the person or persons against whom enforcement of the
modification, amendment or waiver is sought.
5. Entire
Agreement. This agreement constitutes the entire agreement between
the parties and supersedes and cancels any and all prior or contemporaneous
arrangements, understandings and agreements, written or oral, between them
relating to the subject matter hereof. Either party may terminate
this agreement at any time upon 180 days prior written notice thereof; provided,
however, termination hereof shall not relieve any party of their obligations
hereunder that by their nature survive any such termination.
6. No Warranty.
Meadow Valley understands and acknowledges that the Confidential Information is
being provided without any representation or warranty, express or implied, as to
the accuracy or completeness of the Confidential Information, on the part of the
Company. Neither party is under any obligation of any kind to pursue
a Potential Transaction and either party may determine not to pursue a Potential
Transaction in its sole and absolute discretion at any time.
7. Remedies. It
is understood and agreed that money damages may not be a sufficient remedy for
any breach of this agreement and that the parties hereto may be entitled to
specific performance and injunctive or other equitable relief as a remedy for
any such breach. Such remedy shall not be deemed to be the exclusive
remedy for breach of this agreement but shall be in addition to all other
remedies available at law or equity.
8. Severability. If
any portion of this agreement shall be held or made unenforceable or invalid by
a statute, rule, regulation, decision of a tribunal or otherwise, the remainder
of this agreement shall not be affected thereby and shall remain in full force
and effect, and, to the fullest extent, the provisions of the agreement shall be
severable.
9. Headings. The
descriptive headings of the paragraphs and subparagraph, of this agreement are
inserted for convenience only, do not constitute a part of this agreement and
shall not affect in any way the meaning or interpretations of this
agreement.
10. Assignment; Binding
Effect. This agreement may not be assigned by Meadow Valley or
the Company by operation of law or otherwise without the express written consent
of the other party and any attempt in violation hereof shall be null and
void.
Meadow
Valley Parent Corp.
March 11,
2009
Page 4
of 5
11. Waiver of Trial by
Jury. EACH OF MEADOW VALLEY AND THE COMPANY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) RELATED TO OR ARISING OUT OF THIS
AGREEMENT.
12. Counterparts. This
agreement may be signed by the parties in counterparts, which together shall
constitute one and the same agreement among the parties.
13. Notices. All
notices and other communications provided for herein shall be in writing and
shall be delivered or sent by hand or overnight courier service, by certified or
registered mail or by facsimile, as follows:
(a) if
to the Company:
Ready Mix, Inc.
0000 Xxxx Xxxxxx Xxxx,
Xxxxxxx, XX 00000
Attn: Xxxxx
Xxxxx
Facsimile No.: (000)
000-0000
(b) if
to Meadow Valley Parent Corp.:
Meadow Valley Parent
Corp.
c/o Insight Equity Management Company
LLC
0000 Xxxxx Xxxxx, Xxxxx
000
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Facsimile No.: (000)
000-0000
All such notices or other
communications (i) delivered or sent by hand or overnight courier, or mailed by
certified or registered mail, shall be deemed to have been given when received,
or (ii) sent by facsimile shall be deemed to have been given when sent, provided that if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient.
[Signature Page
Follows.]
Meadow
Valley Parent Corp.
March 11,
2009
Page 5
of 5
If the
foregoing terms correctly set forth our agreement, please sign and return to us
a duplicate copy of this agreement.
| Very truly yours, | |||
| READY MIX, INC. | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | |||
| Title: Chief Executive Officer | |||
ACKNOWLEDGED
AND AGREED
on this
13th day of March, 2009:
MEADOW
VALLEY PARENT CORP.
| By: |
/s/
Xxxxx
Xxxxxx
|
|
|
Name:
Xxxxx
Xxxxxx
|
||
|
Title:
Vice President
|
