AMENDED AND RESTATED DISTRIBUTION AGREEMENT between CENTEX CORPORATION and CENTEX CONSTRUCTION PRODUCTS, INC. November 4, 2003
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
between
CENTEX CORPORATION
and
CENTEX CONSTRUCTION PRODUCTS, INC.
November 4, 2003
TABLE OF CONTENTS
Page | ||||||
ARTICLE I. DEFINITIONS | 2 | |||||
SECTION 1.1
|
Certain Definitions | 2 | ||||
SECTION 1.2
|
Other Defined Terms | 6 | ||||
ARTICLE II. THE DISTRIBUTION AND CASH DIVIDEND | 6 | |||||
SECTION 2.1
|
The Distribution | 6 | ||||
SECTION 2.2
|
The Cash Dividend | 9 | ||||
SECTION 2.3
|
Declaration Date; Further Assurances | 11 | ||||
ARTICLE III. REPRESENTATIONS AND WARRANTIES | 11 | |||||
SECTION 3.1
|
Representations and Warranties of CXP | 11 | ||||
SECTION 3.2
|
Representations and Warranties of Centex | 12 | ||||
ARTICLE IV. COVENANTS | 13 | |||||
SECTION 4.1
|
Access to Information | 13 | ||||
SECTION 4.2
|
Confidentiality | 14 | ||||
SECTION 4.3
|
Litigation Cooperation | 14 | ||||
SECTION 4.4
|
No Solicitation | 14 | ||||
SECTION 4.5
|
Certain Post-Distribution Transactions | 15 | ||||
SECTION 4.6
|
Public Announcements | 16 | ||||
SECTION 4.7
|
Required Consents | 16 | ||||
SECTION 4.8
|
Stockholder Rights Plan | 16 | ||||
ARTICLE V. INDEMNIFICATION | 16 | |||||
SECTION 5.1
|
Indemnification by CXP | 16 | ||||
SECTION 5.2
|
Indemnification by Centex | 17 | ||||
SECTION 5.3
|
Procedures for Indemnification | 18 | ||||
SECTION 5.4
|
Subrogation | 19 | ||||
SECTION 5.5
|
Remedies Not Exclusive | 19 | ||||
SECTION 5.6
|
Indemnification Payments | 19 | ||||
ARTICLE VI. MISCELLANEOUS | 20 | |||||
SECTION 6.1
|
Notices | 20 | ||||
SECTION 6.2
|
Interpretation | 20 | ||||
SECTION 6.3
|
Amendments; No Waivers | 21 | ||||
SECTION 6.4
|
Assignment | 21 | ||||
SECTION 6.5
|
Successors and Assigns | 21 | ||||
SECTION 6.6
|
Governing Law | 21 | ||||
SECTION 6.7
|
Counterparts; Effectiveness | 21 | ||||
SECTION 6.8
|
Exhibits and Schedules | 21 | ||||
SECTION 6.9
|
Entire Agreement | 21 | ||||
SECTION 6.10
|
Severability | 22 | ||||
SECTION 6.11
|
Termination | 22 | ||||
SECTION 6.12
|
Survival of Agreements | 22 | ||||
SECTION 6.13
|
Expenses | 22 |
i
EXHIBITS | ||||||
Exhibit A — Form of Administrative Services Agreement | ||||||
Exhibit B — Form of Intellectual Property Agreement |
ii
AMENDED AND RESTATED DISTRIBUTION AGREEMENT
This AMENDED AND RESTATED DISTRIBUTION AGREEMENT, dated as of November 4, 2003 (this “Agreement”), amends and restates in its entirety the DISTRIBUTION AGREEMENT, dated as of July 21, 2003, between CENTEX CORPORATION, a Nevada corporation (“Centex”), and CENTEX CONSTRUCTION PRODUCTS, INC., a Delaware corporation (“CXP”).
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ARTICLE I.
“Action” means any suit, action, arbitration, inquiry, investigation or other proceeding of any nature (whether criminal, civil, legislative, administrative, regulatory, prosecutorial or otherwise) by or before any arbitrator or Governmental Entity or similar Person or body.
“Administrative Services Agreement” means the Administrative Services Agreement to be entered into prior to or on the Distribution Date between CXP and Centex Service Company, which shall be substantially in the form of Exhibit A hereto, with such changes thereto as CXP and Centex Service Company shall mutually agree.
“Affiliate” means, when used with respect to a specified Person, another Person that controls, is controlled by, or is under common control with such Person. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or other interests, by contract or otherwise.
“Ancillary Agreements” means all agreements, certificates, deeds, instruments, assignments and other written arrangements (other than this Agreement) entered into between Centex or any of its Affiliates (including Centex Service Company) on the one hand and CXP or any of its Affiliates on the other hand in connection with the Transactions, including the Administrative Services Agreement and the Intellectual Property Agreement.
“Assets” means assets, properties and rights (including goodwill), wherever located (including in the possession of vendors or other third parties or elsewhere), whether real, personal or mixed, tangible, intangible or contingent, in each case whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of any Person.
“Authorized Capital Increase Proposal” has the meaning set forth in the Merger Agreement.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
“Cash Dividend Date” means the close of business on the Business Day next preceding to the Distribution Date.
“Cash Dividend Record Date” means the close of business on the Business Day next preceding the Distribution Record Date.
“Centex Business” means each and every business conducted at any time prior to, on or after the Distribution Date by Centex or any current, former or future Subsidiary of Centex (other than CXP and its Subsidiaries), whether or not such Subsidiary is a Subsidiary of Centex on the date hereof, except for the CXP Business.
“Centex Group” means Centex and each Person (other than any member of the CXP Group) that is a Subsidiary of Centex immediately prior to the Distribution Date.
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“Centex Indemnitees” means Centex, each member of the Centex Group, each of their respective present and former directors, officers, employees and agents and each of the heirs, executors, successors and assigns of any of the foregoing.
“Centex Liabilities” means any and all Liabilities whatsoever that arise out of, result from or are related to the operation of the Centex Business or the ownership of the Assets of the Centex Business by Centex, any predecessor entity of Centex (and all predecessors thereto) or any current, former or future Subsidiary of Centex (other than CXP and its Subsidiaries), whether such Liabilities arise before, on or after the Distribution Date and whether known or unknown, fixed or contingent, and shall include, without limitation:
(a) any Liabilities for a breach by Centex of any representation, warranty or covenant herein or in the Merger Agreement; and | |
(b) any and all Liabilities which CXP incurs as a result of, and to the extent resulting from, information provided by Centex in writing relating to Centex specifically for inclusion in the Proxy Statement (or any Amendment thereto), any other solicitation materials or any oral solicitation of proxies or any report or document filed by CXP with the Commission. |
“Code” means the Internal Revenue Code of 1986, as amended, and the Treasury regulations promulgated thereunder, including any successor legislation.
“Commission” means the Securities and Exchange Commission.
“CXP Business” means each and every business conducted at any time prior to, on or after the Distribution Date by CXP or any current, former or future Subsidiary of CXP, whether or not such Subsidiary is a Subsidiary of CXP on the date hereof.
“CXP Certificate of Incorporation” means the Restated Certificate of Incorporation of CXP as in effect immediately after the Reclassification.
“CXP Group” means CXP and each Person that is a Subsidiary of CXP immediately prior to the Distribution Date.
“CXP Indemnitees” means CXP, each member of the CXP Group, each of their respective present and former directors, officers, employees and agents and each of the heirs, executors, successors and assigns of any of the foregoing.
“CXP Liabilities” means any and all Liabilities whatsoever that arise out of, result from or are related to the operation of the CXP Business or the ownership of the Assets of the CXP Business by CXP, any predecessor entity of CXP (and all predecessors thereto) or any current, former or future Subsidiary of CXP or any such predecessor, whether such Liabilities arise before, on or after the Distribution Date and whether known or unknown, fixed or contingent, and shall include, without limitation:
(a) any and all Liabilities to which Centex or any of its predecessors or successors may become subject arising from or based upon its status or alleged status as a “controlling person” (as defined under Section 15 of the Securities Act and Section 20 of the Exchange Act) of CXP or a stockholder of CXP relating to (i) the Proxy Statement (or any amendment thereto) or any other solicitation materials or any oral solicitations of proxies (except for liabilities which CXP incurs as a result of, and to the extent resulting from, information provided by Centex in writing relating to Centex specifically for inclusion in the Proxy Statement (or any amendment thereto) or any such other solicitation materials or oral solicitation); or (ii) any other report or document filed by CXP with the Commission at any time before, on or after the Distribution Date (except for liabilities which CXP incurs as a result of, and to the extent resulting from, information provided by Centex in writing relating to Centex specifically for inclusion in such report or document); | |
(b) any Liabilities for a breach by CXP of any representation, warranty or covenant herein or in the Merger Agreement; and |
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(c) any and all Liabilities which Centex incurs as a result of, and to the extent resulting from, information provided in writing by CXP relating to CXP specifically for inclusion in any proxy or information statement provided by Centex to its stockholders or any related solicitation materials or other similar communications or any report or document filed by Centex with the Commission. |
“Declaration Date” means the date on which (a) the Centex Board of Directors shall authorize and declare the Distribution and (b) the CXP Board of Directors shall authorize and declare the Cash Dividend.
“DGCL” means the General Corporation Law of the State of Delaware.
“Distribution Agent” means the distribution agent selected by Centex to effect the Distribution, which may be Centex’s stock transfer agent.
“Distribution Date” means a Business Day determined by the Board of Directors of Centex, which shall be after the payment of the Cash Dividend and the consummation of the Reclassification, for the mailing of certificates evidencing Distributable Shares to stockholders of Centex in the Distribution.
“Distribution Record Date” means a Business Day determined by the Board of Directors of Centex as the record date for the determination of the holders of record of Centex Common Stock entitled to receive the Distributable Shares in the Distribution.
“Established Liability” means, with respect to each Centex stockholder, the amount of Tax Liability (including interest and penalties) resulting directly from the Distribution, as evidenced by (i) an amended tax return of such Centex stockholder reflecting the amount of such Tax Liability, together with proof of payment of such amount, or (ii) a deficiency notice received by such Centex stockholder from the IRS setting forth the amount of such Tax Liability, together with proof of payment of such amount.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Form 8-A” means a registration statement on Form 8-A of CXP pursuant to which the Class B Common Stock is to be registered under the Exchange Act, including all amendments thereto.
“Governance Proposals” has the meaning set forth in the Merger Agreement.
“Governmental Entity” means any federal, state, local, or foreign government or any court, tribunal, administrative agency or commission or other governmental or regulatory authority or agency, domestic, foreign or supranational.
“Intellectual Property Agreement” means the Intellectual Property Agreement to be entered into prior to or on the Distribution Date between Centex and CXP, which shall be substantially in the form of Exhibit B hereto, with such changes thereto as Centex and CXP shall mutually agree.
“IRS” means the Internal Revenue Service.
“Liabilities” shall mean any and all losses, claims, charges, debts, demands, actions, causes of action, suits, damages, obligations, payments, costs and expenses, sums of money, accounts, reckonings, bonds, specialties, indemnities and similar obligations, exonerations, covenants, contracts, controversies, agreements, promises, doings, omissions, variances, guarantees, make whole agreements and similar obligations, and other liabilities, including all contractual obligations, whether absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever arising, and including those arising under any law, rule, regulation, Action, threatened or contemplated Action (including the costs and expenses of demands, assessments, judgments, settlements and compromises relating thereto and attorneys’ fees and any and all costs and expenses, whatsoever reasonably incurred in investigating, preparing or defending against any such Actions or threatened or contemplated Actions), order or consent decree of any governmental or other regulatory or administrative agency, body or commission or any award of any arbitrator or mediator of any kind, and those arising under any contract, commitment or undertaking, including those arising under this Agreement or the Merger Agreement, in
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“Material Adverse Effect” means, with respect to any Person, any change, effect, event, occurrence or development that is, individually or in the aggregate, materially adverse to the business, operations, assets, liabilities, condition (financial or otherwise), results of operations or prospects of such Person.
“Name Change Proposal” has the meaning set forth in the Merger Agreement.
“NYSE” means the New York Stock Exchange, Inc.
“NYSE Listing Application” shall mean the application to be submitted by CXP to the NYSE for the listing of the Class B Common Stock.
“Person” means any individual, corporation, general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, Governmental Entity or other entity of any kind or nature.
“Proxy Statement” has the meaning set forth in the Merger Agreement.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Stockholder Rights Plan Proposal” has the meaning set forth in the Merger Agreement.
“Stockholders Meeting” has the meaning set forth in the Merger Agreement.
“Subsidiary” means, with respect to any Person, (i) any corporation of which at least a majority of the securities or other ownership interests having by their terms ordinary voting power to elect a majority of the board of directors are directly or indirectly owned or controlled by such Person and its Subsidiaries, (ii) any partnership of which such Person or one of its Subsidiaries is a general partner or as to which such Person and its Subsidiaries are entitled to receive at least a majority of the assets upon the liquidation thereof or (iii) any limited liability company of which such Person or one of its Subsidiaries is a manager (or is entitled as a member to exercise management rights over the conduct of the business of such limited liability company) or as to which such Person and its Subsidiaries are entitled to receive at least a majority of the assets upon the liquidation thereof.
“Tax” or “Taxes” means taxes of any kind, levies or other like assessments, customs, duties, imposts, charges or fees, including income, gross receipts, ad valorem, value added, excise, real or personal property, asset, sales, use, license, payroll, transaction, capital, net worth and franchise taxes, withholding, employment, social security, workers compensation, utility, severance, production, unemployment compensation, occupation, premium, windfall profits, transfer and gains taxes or other governmental taxes imposed or payable to the United States, or any state, county, local or foreign government or subdivision or agency thereof, and in each instance such term shall include any interest, penalties, additions to tax or additional amounts attributable to any such tax.
“Transaction Agreements” means this Agreement, the Merger Agreement and the Ancillary Agreements.
“Transactions” means the Reclassification, the Cash Dividend, the Distribution and the other transactions contemplated by the Transaction Agreements.
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Term | Section | |
355 Failure
|
5.1(b) | |
Acquisition Proposal
|
4.4(a) | |
Additional Shares
|
Recitals | |
Cash Dividend
|
2.2(a) | |
Centex
|
Preamble | |
Centex Common Stock
|
Recitals | |
Centex Failure
|
5.2(b) | |
Centex Member
|
5.1(b) | |
Centex Tax Liability
|
5.1(c) | |
Common Stock
|
Recitals | |
CXP
|
Preamble | |
CXP Failure
|
5.1(b) | |
CXP Member
|
5.2(b) | |
Distribution
|
Recitals | |
Distributable Shares
|
Recitals | |
Final Determination
|
5.3(b) | |
Indemnifying Party
|
5.3(a) | |
Indemnitee
|
5.3(a) | |
IRS Ruling
|
2.1(b)(i) | |
Merger
|
Recitals | |
Merger Agreement
|
Recitals | |
Merger Sub
|
Recitals | |
Required Consents
|
4.7 | |
Ruling Request
|
Recitals | |
Target Date
|
4.1(c) | |
Tax Claim
|
5.3(b) | |
Third Party Claim
|
5.3(a) |
ARTICLE II.
THE DISTRIBUTION AND CASH DIVIDEND
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(i) a private letter ruling from the IRS shall have been obtained, and shall continue in effect, providing that, among other things, the Reclassification and the Distribution will qualify as tax-free transactions for federal income tax purposes under Sections 368(a), 354 and 355 of the Code (the “IRS Ruling”), which ruling shall be in form and substance satisfactory to Centex in its sole discretion; and Centex and CXP shall have complied with all conditions set forth in such ruling that are required to be complied with prior to the Declaration Date and the Distribution Date; | |
(ii) any material governmental approvals and consents necessary for Centex to declare and effect the Distribution and the other Transactions shall have been obtained and shall be in full force and effect; | |
(iii) no order, injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing the declaration and effectuation of the Distribution or the consummation of the other Transactions shall be in effect and no other event outside the control of Centex shall have occurred or failed to occur that prevents the lawful declaration and effectuation of the Distribution or the consummation of the other Transactions; | |
(iv) the Distribution and the other Transactions shall be in compliance with applicable federal and state securities and other applicable laws; | |
(v) all of the Required Consents shall have been obtained; | |
(vi) in the case of the obligation to declare the Distribution, (A) all conditions to the payment of the Cash Dividend shall have been satisfied or waived by CXP; (B) the Cash Dividend shall have been declared by the Board of Directors of CXP and (C) no circumstances shall exist that, in the reasonable judgment of Centex, could be expected to prevent the payment of the Cash Dividend prior to the Distribution; and, in the case of the obligation to effect the Distribution, the Cash Dividend shall have been paid to the stockholders of CXP (including Centex); | |
(vii) in the case of the obligation to declare the Distribution, (A) all conditions to the obligations of Centex to consummate the Reclassification set forth in the Merger Agreement (other than the conditions set forth in Section 4.2(d) and the conditions set forth in Section 4.2(e) to the extent it requires that the Cash Dividend have been paid) shall have been satisfied or waived by Centex; and (B) no circumstances shall exist that, in the reasonable judgment of Centex, could be expected to prevent the consummation of the Reclassification immediately prior to the Distribution; and, in the case of the obligation to effect the Distribution, the Reclassification shall have been consummated; | |
(viii) the Form 8-A shall have been filed with the Commission; | |
(ix) the Class B Shares shall have been approved for listing on the NYSE, subject to official notice of issuance; | |
(x) all representations and warranties of CXP set forth in this Agreement and the Merger Agreement that are qualified as to materiality shall be true and correct, and any such representations and warranties that are not so qualified shall be true and correct in all material respects, as of the Distribution Date; and |
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(xi) all covenants to have been performed at or prior to the Distribution Date by CXP pursuant to this Agreement or the Merger Agreement shall have been performed at or prior to the Distribution Date by CXP in all material respects. |
The foregoing conditions are solely for the benefit of Centex and shall not give rise to or create any duty on the part of Centex to waive or not waive any such condition.
(i) Centex shall prepare and mail, at such time as determined by Centex, to the holders of Centex Common Stock, such information concerning CXP, its business, operations and management, the Distribution and the tax consequences thereof and such other matters as Centex shall reasonably determine or as may be required by law. Centex shall give CXP and its counsel reasonably appropriate advance opportunity to review and comment upon such documents and shall consider in good faith any comments CXP timely delivers to Centex with respect to such information. CXP agrees to cooperate with Centex in the preparation of, and provide any information reasonably requested by Centex for inclusion in, such mailing. CXP represents that all information provided to Centex for such mailing shall be true and correct in all material respects. Centex and CXP will prepare, and CXP will, to the extent required under applicable law, file with the Commission any such documentation, including any no action letters or other requests for interpretive or regulatory assistance, if any, which Centex reasonably determines are necessary or desirable to effectuate the Distribution and the other transactions contemplated hereby and by the Merger Agreement and Centex and CXP shall each use its reasonable best efforts to obtain all necessary approvals from the Commission with respect thereto as soon as practicable. | |
(ii) CXP and Centex shall take all such action as may be necessary or appropriate under the securities or blue sky laws of the United States (and any comparable laws under any foreign jurisdiction) in connection with the Distribution and the other Transactions. | |
(iii) CXP shall prepare and file, and shall use its reasonable best efforts to have approved, subject to official notice of issuance, the NYSE Listing Application. | |
(iv) CXP shall prepare and file the Form 8-A (which may include or incorporate by reference information contained in the Proxy Statement) with the Commission as promptly as practicable following the execution hereof, and shall use its reasonable best efforts to cause the Form 8-A to become effective under the Exchange Act immediately following the consummation of the Reclassification or as soon as practicable thereafter. | |
(v) On or prior to the Distribution Date, CXP shall from time to time, as and to the extent reasonably requested by Centex or requested by the IRS, provide any documentation, certifications or other information necessary to enable Centex to obtain the IRS Ruling. | |
(vi) Centex shall keep CXP informed regarding the status of the IRS Ruling and any significant requests made by the IRS for changes or undertakings in connection with the Transactions and shall provide CXP with copies of any additional submissions by Centex to the IRS related to the IRS Ruling. |
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(vii) Subject to the terms and conditions of this Agreement, on or prior to the Distribution Date, each of Centex and CXP shall consummate the transactions in connection with the Distribution that are contemplated by the IRS Ruling, the Ruling Request and any related submissions by Centex to the IRS. | |
(viii) Centex shall give CXP and its counsel reasonably appropriate advance opportunity to review and comment upon filings to be made by Centex with the Commission with respect to this Agreement, the Merger Agreement or any of the Transactions and shall consider in good faith any comments CXP timely delivers to Centex with respect to such filing. | |
(ix) In addition to those matters specifically set forth above, Centex and CXP shall each take such other reasonable steps as are necessary and appropriate to cause the conditions set forth in Section 2.1(b) to be satisfied and to effect the Distribution on the Distribution Date. | |
(x) CXP agrees that it shall not file with the Commission any report or other document that contains any disclosure relating to the Transaction Agreements or the Transactions without the prior written consent of Centex with respect to such disclosure, which consent shall not be unreasonably withheld. Centex will review all such draft reports and other documents promptly and will provide any comments to CXP within a reasonable period of time. | |
(xi) Prior to the Distribution Date, CXP shall not amend, and the CXP Board of Directors shall not approve any amendment to, CXP’s Restated Certificate of Incorporation or CXP’s Amended and Restated Bylaws, other than the Governance Proposals, the Authorized Capital Increase Proposal, the Name Change Proposal and the amendments to the Certificate of Incorporation, which will take effect upon the filing of the certificate of merger with the Secretary of State of the State of Delaware in connection with the Reclassification in accordance with the terms of the Merger Agreement. | |
(xii) On or prior to the Distribution Date, each of Centex (or, in the case of the Administrative Services Agreement, Centex Service Company) and CXP shall enter into the Administrative Services Agreement and the Intellectual Property Agreement. | |
(xiii) Except as expressly provided otherwise herein, all agreements and arrangements existing on the date hereof between Centex or any of its Subsidiaries on the one hand and CXP and any of its Subsidiaries on the other hand, whether written or oral, shall continue in full force and effect in accordance with their terms and consistent with past practice from the date hereof, through the Distribution Date and thereafter. | |
(xiv) On or prior to the Distribution Date, each of Centex and CXP, as the case may be, shall, from time to time and to the extent reasonably requested by the other, provide any documentation, certifications or other information to make required filings in connection with the transactions contemplated by this Agreement and the Merger Agreement. |
SECTION 2.2 The Cash Dividend.
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(i) any material governmental approvals and consents necessary for CXP to declare and pay the Cash Dividend and consummate the other Transactions shall have been obtained and shall be in full force and effect; | |
(ii) no order, injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition in each case preventing the declaration or payment by CXP of the Cash Dividend or the consummation of the other Transactions shall be in effect and no other event outside the control of CXP shall have occurred or failed to occur that prevents the declaration or the lawful payment of the Cash Dividend or consummation of the other Transactions; | |
(iii) the Cash Dividend and the other Transactions shall be in compliance with applicable federal and state securities and other applicable laws; | |
(iv) all of the Required Consents shall have been obtained ; | |
(v) in the case of the obligation to declare the Cash Dividend, all conditions to the Distribution (other than the declaration and payment of the Cash Dividend) shall have been satisfied or waived by Centex; in the case of the declaration and the payment of the Cash Dividend, the Distribution shall have been declared by the Board of Directors of Centex substantially simultaneously with the declaration of the Cash Dividend and no circumstances shall exist that would reasonably be expected to prevent the prompt consummation of the Distribution following payment of the Cash Dividend; | |
(vi) in the case of the obligation to declare the Cash Dividend, all conditions to the obligations on the part of CXP to consummate the Reclassification set forth in the Merger Agreement shall have been satisfied or waived; in the case of the payment of the Cash Dividend, no circumstances shall exist that would reasonably be expected to prevent the prompt consummation of the Reclassification following payment of the Cash Dividend; | |
(vii) the Form 8-A shall have been filed with the Commission; | |
(viii) the Class B Common Stock shall have been approved for listing on the NYSE, subject to official notice of issuance; | |
(ix) all representations and warranties of Centex set forth in this Agreement and the Merger Agreement that are qualified as to materiality shall be true and correct, and any such representations and warranties that are not so qualified shall be true and correct in all material respects as of the Declaration Date and the Cash Dividend Date; | |
(x) all covenants to have been performed at or prior to the Distribution Date by Centex pursuant to this Agreement or the Merger Agreement shall have been performed by Centex at or prior to the Distribution Date in all material respects; | |
(xi) CXP shall have entered into definitive loan agreements for financing which, when added to CXP’s available cash and reasonably anticipated cash flow through the Declaration Date, will permit the payment of the Cash Dividend, with sufficient cash available, in the reasonable judgment of the Board of Directors of CXP, to meet the needs of CXP’s business, and which are subject only to customary conditions. CXP shall provide copies of such loan agreements to Centex and shall provide such other documents and information in connection therewith as Centex shall reasonably request; and | |
(xii) the payment of the Cash Dividend shall be permitted by the applicable provisions of the DGCL, and the Board of Directors of CXP shall have obtained such reasonable and customary assurances as the Board of Directors of CXP deems necessary for the authorization of such dividend. |
The foregoing conditions are solely for the benefit of CXP and shall not give rise to or create any duty on the part of CXP to waive or not waive any such condition.
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SECTION 2.3 Declaration Date; Further Assurances.
(a) The parties agree that the Declaration Date shall occur as soon as reasonably practicable following the satisfaction or waiver of the conditions to the declaration of the Distribution set forth in Section 2.1(b) (other than the declaration of the Cash Dividend) and the conditions to the declaration of the Cash Dividend set forth in Section 2.2(b). The parties shall cause their respective Boards of Directors (or in the case of Centex, a duly authorized committee thereof) to meet in person or telephonically on the Declaration Date and each shall take such corporate action at such meeting as shall be required to (in the case of CXP) declare the Cash Dividend and (in the case of Centex) declare the Distribution. Following such meetings, the parties shall take all actions required to consummate the Reclassification in accordance with the terms of the Merger Agreement, including the filing of the certificate of merger relating to the Reclassification with the Secretary of State of the State of Delaware.
(b) Subject to each of Centex’s and CXP’s right to terminate this Agreement in accordance with Section 6.11, if at any time after the date hereof any further action is reasonably necessary or desirable to carry out the Transactions or any other purpose of the Transaction Agreements, the proper officers of each party to this Agreement shall take all such necessary action. Without limiting the foregoing, and subject as aforesaid, Centex and CXP shall use all reasonable efforts to obtain the IRS Ruling and all consents and approvals, to enter into all amendatory agreements to make all filings and applications that may be required for the consummation of the transactions contemplated by this Agreement and the Merger Agreement, including all applicable governmental and regulatory filings.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
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(a) Organization; Good Standing. Centex is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Nevada and has all corporate power required to consummate the Transactions. |
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ARTICLE IV.
SECTION 4.1 Access to Information.
(a) Other than in circumstances in which indemnification is sought pursuant to Article V (in which event the provisions of such Article will govern), from and after the Distribution Date, each of CXP and Centex shall afford to the other and its authorized accountants, counsel and other designated representatives reasonable access during normal business hours, subject to appropriate restrictions for classified, privileged or confidential information, to the personnel, properties, books and records of such party and its Subsidiaries insofar as such access is reasonably required by the other party and relates to such other party’s performance of its obligations under the Transaction Agreements or such party’s financial, tax and other reporting obligations.
(b) A party providing information or access to information to the other party under this Article IV shall be entitled to receive from the recipient, upon the presentation of invoices therefor, payments for such amounts, relating to supplies, disbursements and other out-of-pocket expenses, as may be reasonably incurred in providing such information or access to information.
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(c) For a period of two years following the Distribution Date, CXP shall provide to Centex: (i) promptly following the date (the “Target Date”) as of which there has been an aggregate change in the outstanding equity or capital structure of CXP (measured during the period beginning on the Distribution Date and ending on the Target Date and not taking into account the Reclassification or transfers of shares by CXP stockholders, unless CXP participates in such transfers or such transfers are reported on a Schedule 13D or 13G under the Exchange Act) that accounts for at least 10% of the total outstanding equity of CXP as of the Distribution Date written notice of such change and (ii) after the Target Date, reasonably detailed reports delivered promptly following the occurrence of each additional change or changes (if any) in the outstanding equity or capital structure of CXP that, individually or in the aggregate (not taking into account the Reclassification or transfers of shares by CXP stockholders, unless CXP participates in such transfers or such transfers are reported on a Schedule 13D or 13G under the Exchange Act), account for at least 5% of the total outstanding equity of CXP as of the Distribution Date.
(a) Subject to Sections 4.4(b) and 4.4(c), neither Centex nor CXP shall, directly or indirectly, through any officer, director, employee, representative, securityholder or agent solicit, initiate or encourage any inquiries, offers or proposals or any indication of interest or the commencement of negotiations or continue any current negotiations or conduct any negotiations or enter into any agreement with respect to, or provide any nonpublic information regarding or in connection with, any proposal for the acquisition by any third party of any shares of capital stock of CXP from CXP or Centex (other than issuances of common stock by CXP pursuant to existing employee stock plans in the ordinary course of business) or the acquisition of, or business combination with, CXP or its businesses or operations through any other means, including a merger or purchase of assets (an “Acquisition Proposal”), until the earlier to occur of the termination of this Agreement or the time at which the Distribution is consummated; provided, however, that Centex and CXP may respond to any unsolicited inquiries or proposals solely to indicate that it is bound by this Section 4.4. If either of CXP or Centex receives any such inquiry or proposal, then CXP or Centex, as the case may be, shall inform the other of the terms and conditions, if any, of such inquiry or proposal and the identity of the Person making the proposal and shall keep such party promptly advised of all further communications relating to such inquiry or proposal.
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(b) Centex shall be relieved of its obligations under Section 4.4(a) (in the case of clause (iii) below, only to the extent set forth therein) if:
(i) the Board of Directors of CXP shall or shall resolve to (A) not recommend, or withdraw its approval or recommendation of, the Transactions or the Transaction Agreements, (B) modify any such approval or recommendation in a manner adverse to Centex or (C) approve, recommend or enter into any agreement for any Acquisition Proposal; | |
(ii) CXP breaches or fails to comply with any of its material obligations set forth in this Agreement or the Merger Agreement and fails to cure such breach or failure within 30 days following written notice from Centex; or | |
(iii) after receipt of a bona fide written Acquisition Proposal, the Board of Directors of Centex determines reasonably and in good faith that it would be inconsistent with the Board’s fiduciary duties to stockholders of Centex not to commence discussions or negotiations with, or not to provide nonpublic information (other than nonpublic information with respect to CXP) to, the person making such Acquisition Proposal; provided, however, that Centex shall only be released from its obligations under Section 4.4(a) pursuant to this Section 4.4(b)(iii) with respect to such Acquisition Proposal. |
(c) CXP shall be relieved of its obligations under Section 4.4(a) (to the extent specifically set forth in this Section 4.4(c)) if (i) after receipt of a bona fide written Acquisition Proposal, the Board of Directors of CXP determines reasonably and in good faith that it would be inconsistent with the Board’s fiduciary duties to stockholders of CXP not to commence discussions or negotiations with, or provide nonpublic information to, the person making such Acquisition Proposal; provided, however, that CXP shall only be released from its obligations under Section 4.4(a) pursuant to this Section 4.4(c) with respect to such Acquisition Proposal, or (ii) if Centex breaches or fails to comply with any of its material obligations set forth in this Agreement or the Merger Agreement and fails to cure such breach or failure within 30 days following written notice from CXP.
SECTION 4.5 Certain Post-Distribution Transactions.
(a) CXP and Centex shall each comply with, and shall cause its respective Subsidiaries to comply with, and otherwise not take, and prevent its respective Subsidiaries from taking, any action inconsistent with each representation and statement made by such respective party to the IRS in connection with the request by Centex for the IRS Ruling. Without limiting the generality of the foregoing, until two years after the Distribution Date, CXP will maintain its status as a company engaged in the active conduct of a trade or business, as defined in Section 355(b) of the Code.
(b) CXP agrees that, prior to the second anniversary of the Distribution Date, it will not (i) merge or consolidate with or into any other corporation, which would have the effect of causing or permitting one or more persons to acquire directly or indirectly stock representing a 50 percent or greater interest (within the meaning of Section 355(e) of the Code) in CXP, (ii) liquidate or partially liquidate, (iii) sell or transfer all or substantially all of its assets (within the meaning of Rev. Proc. 77-37, 1977-2 C.B. 568) in a single transaction or series of transactions, (iv) redeem or otherwise repurchase any CXP stock (other than as described in Section 4.05(1)(b) of Rev. Proc. 96-30, 1996-1 C.B. 696), or (v) take any other action or actions which in the aggregate (and taking into account the Reclassification) would have the effect of causing or permitting one or more persons to acquire directly or indirectly stock representing a 50 percent or greater interest (within the meaning of Section 355(e) of the Code) in CXP, unless prior to taking any such action set forth in the foregoing clauses (i) through (v), CXP has obtained (and provided to Centex) a written opinion in form and substance reasonably acceptable to Centex of a law firm reasonably acceptable to Centex, or Centex has obtained (at the reasonable request and at the expense of CXP) a supplemental ruling from the IRS, that such action or actions will not result in (i) the Distribution failing to qualify under Section 355(a) of the Code or (ii) the CXP shares failing to qualify as qualified property for purposes of Section 355(c)(2) of the Code by reason of Section 355(e) of the Code. CXP further agrees that, prior to the second anniversary of the Distribution Date, it shall not initiate or support, or call any meeting of its stockholders with respect to, any action that would in any way
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ARTICLE V.
SECTION 5.1 Indemnification by CXP.
(a) CXP shall, to the fullest extent permitted by law, indemnify, defend and hold harmless the Centex Indemnitees from and against any and all CXP Liabilities or third party allegations of CXP Liabilities.
(b) CXP shall, to the fullest extent permitted by law, indemnify, defend and hold harmless (i) Centex, (ii) each member of the consolidated group of corporations of which Centex is the common parent corporation (within the meaning of Section 1504 of the Code) and (iii) each direct or indirect Subsidiary of Centex (each Person referred to in clauses (ii) and (iii), a “Centex Member”) from and against (A) any actual Liability of Centex or any Centex Member (including any actual Liability for Taxes to the extent that, in the absence of any Liability for Taxes resulting from a determination that the Distribution fails to qualify under Section 355(a) of the Code or Section 355(e) of the Code or that the CXP shares fail to qualify as qualified property for purposes of Section 355(c)(2) of the Code (each, a “355 Failure”), such Liability would otherwise have been reduced or eliminated by a net operating loss deduction (within the meaning of Section 172 of the Code and the Treasury regulations thereunder)), and (B) any Established Liability of any stockholder of Centex (it being understood that any Established Liability of any stockholder of Centex shall be deemed to be an actual Liability of Centex for purposes of determining CXP’s indemnification obligation hereunder, regardless of whether such stockholder actually has or pursues a valid claim for such Established Liability against Centex), in each case arising from any
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(c) If CXP (or any of its Subsidiaries) fails to comply with any of its obligations under Section 4.5(a) or (b) or takes any action or fails to take any action, and such failure to comply, action or omission is the direct and primary or exclusive cause of a 355 Failure, then CXP shall, to the fullest extent permitted by law, indemnify, defend and hold harmless Centex and each Centex Member from and against (i) any and all federal, state and local Taxes, including any interest, penalties or additions to Tax, imposed upon or incurred by Centex and any Centex Member and (ii) any Established Liability of any stockholder of Centex (it being understood that any Established Liability of any stockholder of Centex shall be deemed to be a Centex Tax Liability (as defined below) for purposes of determining CXP’s indemnification obligation hereunder, regardless of whether such stockholder actually has or pursues a valid claim for such Established Liability against Centex), in each case arising from such 355 Failure (any such Tax, interest, penalty or addition to Tax, together with any such Established Liability, a “Centex Tax Liability”).
(d) Any indemnity payment made by CXP pursuant to either clause (b) or (c) above shall be made on an after-tax basis, based on the actual tax position of Centex, the Centex Member or Centex stockholder, as the case may be, in the taxable year such indemnity payment is received and taking into account the deductibility for federal income tax purposes of any state taxes.
SECTION 5.2 Indemnification by Centex.
(a) Centex shall, to the fullest extent permitted by law, indemnify, defend and hold harmless the CXP Indemnitees from and against any and all Centex Liabilities or third party allegations of Centex Liabilities.
(b) Centex shall, to the fullest extent permitted by law, indemnify, defend and hold harmless CXP and each member of the consolidated group of corporations of which CXP is the common parent corporation (within the meaning of Section 1504 of the Code) (each an “CXP Member”) from and against any actual Liability of CXP or any CXP Member arising from any inaccuracy in, or failure by Centex to comply with, any representation or undertaking made by Centex to the IRS in connection with the request by Centex for the IRS Ruling (referred to herein as a “Centex Failure”); provided, however, that, notwithstanding the foregoing, Centex shall not indemnify CXP or any CXP Member for any liability that results solely from a CXP Failure or a failure on the part of CXP to comply with its obligations under Section 4.5(a) or (b) (except to the extent that any such failure is in respect of a representation based in whole or in part upon information provided by Centex); and provided, further, that if any Liability described in this clause (b) arises as a result of both a Centex Failure and a CXP Failure or a failure on the part of CXP to comply with its obligations under Section 4.5(a) or (b), and each such failure is an independent cause of such Liability, then Centex and CXP shall allocate such Liability between themselves in such proportion as is appropriate to reflect the relative fault of Centex on the one hand and CXP on the other with respect to such Liability.
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SECTION 5.3 Procedures for Indemnification.
If a Third Party Claim is made against an Indemnitee with respect to which a claim for indemnification is made pursuant to Section 5.1 or Section 5.2 hereof, the Indemnifying Party shall be entitled to participate in the defense thereof and, if it so chooses and acknowledges in writing its obligation to indemnify the Indemnitee therefor, to assume the defense thereof with counsel selected by the Indemnifying Party; provided that the Indemnitee does not reasonably object to such counsel. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, the Indemnifying Party shall, within 30 days (or sooner if the nature of the Third Party Claim so requires), notify the Indemnitee of its intent to do so, and the Indemnifying Party shall thereafter not be liable to the Indemnitee for legal or other expenses subsequently incurred by the Indemnitee in connection with the defense thereof; provided, that such Indemnitee shall have the right to employ counsel to represent such Indemnitee if, in such Indemnitee’s reasonable judgment, a conflict of interest between such Indemnitee and such Indemnifying Party exists in respect of such claim which would make representation of both such parties by one counsel inappropriate, and in such event the fees and expenses of such separate counsel shall be paid by such Indemnifying Party.
If the Indemnifying Party assumes the defense of a Third-Party Claim, the Indemnitee shall have the right to participate in the defense thereof and to employ counsel, but the fees and expenses of such counsel shall, subject to the proviso of the preceding sentence, be at its own expense, it being understood that the Indemnifying Party shall control such defense. If the Indemnifying Party assumes the defense of a Third Party Claim, all of the Indemnitees shall cooperate with the Indemnifying Party in the defense or prosecution thereof, including by providing or causing to be provided, records and witnesses as soon as reasonably practicable after receiving any request therefor from or on behalf of the Indemnifying Party.
If the Indemnifying Party assumes the defense of a Third Party Claim, then in no event will the Indemnitee admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without the Indemnifying Party’s prior written consent (which shall not be unreasonably withheld); provided, however, that the Indemnitee shall have the right to settle, compromise or discharge such Third Party Claim without the consent of the Indemnifying Party if the Indemnitee releases the Indemnifying Party from its indemnification obligation hereunder with respect to such Third Party Claim and such settlement, compromise or discharge would not otherwise adversely affect the Indemnifying Party. If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnifying Party shall be permitted to enter into, and the Indemnitee shall agree to, any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend and that by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with such Third Party Claim and releases the Indemnitee completely in connection with such Third Party Claim and that would not otherwise adversely affect the Indemnitee or subject the Indemnitee to any equitable remedy.
If an Indemnifying Party elects not to assume the defense of a Third Party Claim, or fails to notify an Indemnitee of its election to do so as provided herein, such Indemnitee may compromise, settle or defend
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Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of counsel incurred by the Indemnitee in defending such Third Party Claim) if the Third Party Claim seeks an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee which the Indemnitee reasonably determines, after conferring with its counsel, cannot be separated from any related claim for money damages. If such equitable relief or other relief portion of the Third Party Claim can be so separated from that for money damages, the Indemnifying Party shall be entitled to assume the defense of the portion relating to money damages.
(b) In the event any Tax Claim is disposed of pursuant to the provisions of this Section 5.3 or a Final Determination has been made in circumstances that give rise to a Tax Liability or an Established Liability on the part of Centex, any Centex Member or any Centex stockholder, as the case may be, then CXP shall pay to Centex all amounts in respect of any Tax Claim within twenty (20) business days after such Tax Claim is disposed of or such Final Determination has been made. For purposes of this Section 5.3(b), (i) “Tax Claim” shall mean any notice of deficiency, proposed adjustment, adjustment, assessment, audit, examination, suit, dispute or other written claim which is commenced or initiated against Centex, any Centex Member or any Centex stockholder with respect to Taxes that are attributable to the Reclassification or Distribution and which result from any act or acts of CXP or its Subsidiaries described in Section 4.5 or the breach by CXP of any representation or warranty set forth in this Agreement and (ii) “Final Determination” shall mean (A) the entry of a decision of a court of competent jurisdiction at such time as an appeal may no longer be taken from such decision or (B) the execution of a closing agreement or its equivalent between the particular taxpayer and the particular relevant taxing authority.
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ARTICLE VI.
To Centex: | |
Centex Corporation | |
0000 Xxxxx Xxxxxxx | |
Xxxxxx, Xxxxx 00000 | |
Fax No.: (000) 000-0000 | |
Attn: Chief Executive Officer | |
with a copy to: | |
Xxxxx Xxxxx L.L.P. | |
0000 Xxxx Xxxxxx | |
Xxxxxx, Xxxxx 00000 | |
Fax No.: (000) 000-0000 | |
Attn: Xxxxxxxx X. Xxxxxx | |
To CXP: | |
Centex Construction Products, Inc. | |
0000 Xxxxx Xxxxxxx | |
Xxxxxx, Xxxxx 00000 | |
Fax No.: (000) 000-0000 | |
Attn: Chief Operating Officer | |
and: | |
The Special Committee of the Board of Directors | |
c/o The Secretary of Centex Construction Products, Inc. | |
Centex Construction Products, Inc. | |
0000 Xxxxx Xxxxxxx | |
Xxxxxx, Xxxxx 00000 | |
Fax No.: (000) 000-0000 | |
with a copy to: | |
Xxxxxx and Xxxxx, LLP | |
000 Xxxx Xxxxxx, Xxxxx 0000 | |
Xxxxxx, Xxxxx 00000 | |
Attention: Xxxxxxx X. Xxxxx | |
Fax No.: (000) 000-0000 | |
and | |
Attention: Xxxxxxx X. Boeing | |
Fax No.: (000) 000-0000 |
(a) The article, section and paragraph headings contained herein are for the purposes of convenience only and are not intended to define or limit the contents of said articles, sections or paragraphs. Whenever the words “include,” “includes” and “including” are used in this Agreement, they shall be deemed followed by the words “without limitation.” Whenever a reference is made in this Agreement to a “party” or “parties,” such reference shall be to a party or parties to this Agreement unless otherwise indicated.
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(b) Each party hereto stipulates and agrees that the rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement to favor any party against the other, and that no party, including any drafting party, shall have the benefit of any legal presumption (including “meaning of the authors”) or the detriment of any burden of proof by reason of any ambiguity or uncertain meaning contained in this Agreement.
SECTION 6.6 Governing Law. Except insofar as mandatory conflicts of law principles require that the Distribution be governed by Nevada law, this Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware applicable to contracts made and to be performed in the State of Delaware.
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[Signature Page Follows]
22
CENTEX CORPORATION |
By: | /s/ XXXXXXXX X. XXXXXX |
|
|
Name: Xxxxxxxx X. Xxxxxx | |
Title: Chairman & CEO | |
CENTEX CONSTRUCTION PRODUCTS, INC. |
By: | /s/ XXXXXX X. XXXXXX |
|
|
Name: Xxxxxx X. Xxxxxx | |
Title: President & CEO |
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Exhibit A
ADMINISTRATIVE SERVICES AGREEMENT
This Administrative Services Agreement (“Agreement”) is made and entered into as of , 2003 by and between EAGLE MATERIALS, INC., formerly known as Centex Construction Products, Inc., a Delaware corporation (“Eagle”), and CENTEX SERVICE COMPANY, a Nevada corporation (“Service Company”).
R E C I T A L S
Eagle desires to engage Service Company to perform certain services for Eagle as hereinafter set forth, and Service Company desires to accept such engagement, upon the terms and subject to the conditions set forth in this Agreement.
A G R E E M E N T
Agreement, provided that such Indemnitee’s conduct did not constitute gross negligence or willful or wanton misconduct. Notwithstanding anything in this Agreement to the contrary, the obligation of Eagle to indemnify, save harmless and defend each Indemnitee will survive the expiration or termination of this Agreement, no matter what the reason thereof, and such obligation to indemnify, defend and hold harmless will remain binding upon Eagle thereafter.
In addition to the monthly compensation described above, Eagle will reimburse Service Company for all out-of-pocket expenses incurred by Service Company in connection with the performance of services described above in Section 2. Out-of-pocket expenses will not include general and administrative services.
8. Termination. This Agreement may be terminated by any of the following methods:
(a) This Agreement may be terminated at any time by written agreement of the parties hereto.
(b) If either party fails to make any payment due hereunder or breaches any of the other terms of this Agreement in any material respect, the other party hereto shall give the breaching party written notice of such breach. If the breaching party fails to remedy the breach within thirty (30) days after receiving such notice, the other party may terminate this Agreement; provided, however, that if at the expiration of such thirty (30) day period the breaching party is diligently using its best efforts to remedy the breach, the other party may not terminate this Agreement on account of such breach during the additional period,
2
not to exceed sixty (60) days, in which the breaching party continues without interruption to use its best efforts to remedy the breach.
(c) If either party hereto shall be dissolved and its business terminated, this Agreement shall automatically terminate upon the effectiveness of such dissolution.
(d) This Agreement may be terminated by notice of Eagle to Service Company delivered no less than thirty (30) days prior to the effective date of termination, and such notice may be delivered for any reason.
No termination of this Agreement shall have the effect of terminating Service Company’s right to collect any amounts owed to it under this Agreement.
Within thirty (30) days following the termination of this Agreement, Service Company shall deliver to Eagle all instruments, documents, reports, books, accounts and records, and copies thereof, that Service Company has received from Eagle, or is holding on the behalf of Eagle, in connection with the rendering of services hereunder.
To Eagle: | ||||||
Attention: | President | |||||
Fax: | ||||||
To Service Company: | ||||||
0000 Xxxxx Xxxxxxx | ||||||
Xxxxxx, Xxxxx 00000 | ||||||
Attention: | Secretary | |||||
Fax: | (214) |
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11. Nature of Relationship. The parties hereto intend that Service Company’s relationship to Eagle shall be that of an independent contractor. Nothing contained in this Agreement shall constitute or be construed to be or create a partnership or joint venture between Service Company and Eagle or their successors or assigns, and neither Service Company nor any officer or employee of Service Company shall be considered at any time to be an employee of Eagle.
EAGLE MATERIALS, INC | ||||
By: | ||||
President | ||||
CENTEX SERVICE COMPANY | ||||
By: | ||||
Vice President |
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EXHIBIT A
Services to be Provided by Centex Service Company
1. | Legal and Corporate Secretary. |
a. | Management of intellectual property rights in protected names and marks used by Eagle |
b. | Paralegal management of litigation and claims with consultation by Centex Law Department attorneys as requested |
c. | Assistance with public company reporting issues and required filings with and reports to stock exchanges and the Securities and Exchange Commission, and assistance with corporate governance matters |
d. | Maintenance of minute books, foreign qualifications and other corporate secretarial matters |
e. | Assistance and advice as required in carrying out Eagle’s corporate compliance program. |
f. | Administration of stock plans |
2. | Public and Investor Relations. |
a. | Review and distribution of press releases |
b. | Advice on an as-needed basis |
3. | Accounting. Advice and assistance with technical questions on an as-needed basis |
4. | Benefits Administration. Management of Eagle’s health and welfare and retirement benefit plans together with a 401-K plan and an ESOP owned by Skywalker, for which plans Eagle will assume administrative responsibility |
5. | Internal Audit. |
a. | Assistance as required in the development of Eagle internal audit program to comply with stock exchange and Securities and Exchange Commission requirements |
b. | Assistance and advice as required in carrying out Eagle’s internal audit |
A-1
6. | IT |
a. | Cash management |
b. | Tax reporting |
c. | Stock plans |
d. | Payroll |
e. | Telephone lines |
f. | Secretariat |
g. | Equity Edge |
h. | CLD |
7. | Finance, Treasury and Cash Management |
a. | Monitor cash sweeps and related work |
b. | Advice and assistance as needed |
8. | Tax |
a. | Filings of form 5500 in calendar year 2004 |
b. | Advice and assistance as needed |
9. | Administrative Services |
a. | Switchboard, mail, other central services |
b. | Advice and assistance as needed |
A-2
Exhibit B
TRADEMARK LICENSE AND DOMAIN NAME AGREEMENT
THIS AGREEMENT (this “Agreement”) is entered into as of , 2003 (the “Effective Date”) by and between Centex Corporation, a corporation organized under the laws of the State of Nevada (“Centex”); Eagle Materials Inc. (formerly known as Centex Construction Products, Inc., or “CXP”), a corporation organized under the laws of the State of Delaware (“Eagle”); and Centex Materials, LLC, a limited liability company organized under the laws of the state of Delaware (“CM”). Centex, Eagle and CM are sometimes hereinafter referred to collectively as the “Parties.”
WHEREAS, CXP and Centex also entered into a Distribution Agreement dated as of July 21, 2003 (the “Distribution Agreement”) pursuant to which (i) CXP will pay a cash dividend to all of the holders of CXP’s common stock immediately prior to the reclassification and distribution; (ii) Centex will distribute all of its holdings of CXP Class B Common Stock and all of its holdings of CXP’s common stock to Centex’s stockholders on a pro rata basis; and (iii) CXP changed its corporate name to Eagle Materials, Inc.; and
WHEREAS, Eagle and Centex mutually desire to terminate the Predecessor Agreement; and
TRADEMARK LICENSE AND DOMAIN NAME AGREEMENT | Page 1 of 9 |
1. | DEFINITIONS |
1.1 “Centex Materials Marks” means the combined term “Centex Materials” and the marks set forth in Exhibit 1.1 hereto.
1.2 “CXP Domain Name” means xxx.xxxxxx-xxx.xxx.
1.3 “Domain Names” means the domain names set forth in Exhibit 1.2 hereto and any other domain names that incorporate the Licensed Marks and are owned by Centex.
1.4 “Eagle Business” means each and every business conducted at any time prior to, on or after the Effective Date by Eagle, CXP or any current or future Subsidiary of Eagle, whether or not such Subsidiary is a subsidiary of Eagle as of the Effective Date.
1.5 “Eagle Group” means Eagle, CXP and each entity that is a current or future Subsidiary of Eagle, whether or not such Subsidiary is a subsidiary of Eagle as of the Effective Date.
1.6 “Eagle Marks” means the marks set forth in Exhibit 1.5 hereto.
1.7 “Licensed Marks” means the marks set forth in Exhibit 1.6 hereto.
1.8 “Subsidiary” means, with respect to any entity, (i) any corporation of which at least fifty percent (50%) of the securities, or fifty percent (50%) of other ownership interests, or at least fifty percent (50%) of the ordinary voting power are directly or indirectly owned or controlled by such entity or its Subsidiaries; (ii) any partnership of which such entity or one of its Subsidiaries is a general partner or as to which such entity or its Subsidiaries are entitled to receive at least fifty percent (50%) of the assets upon the liquidation thereof; or (iii) any limited liability company of which such entity or one of its Subsidiaries is a manager or is entitled to exercise management rights over the conduct of the business of such limited liability company, or as to which such entity or its Subsidiaries are entitled to receive at least fifty percent (50%) of the assets upon the liquidation thereof.
2. | THE PREDECESSOR AGREEMENT |
2.1 The Predecessor Agreement shall terminate automatically upon the Effective Date, and Eagle hereby waives the right to receive the notice required by Paragraph 1.b. of the Predecessor Agreement.
2.2 Notwithstanding Paragraphs 9 and 10 of the Predecessor Agreement, Eagle shall have the right to continue use of the trademarks that were the subject of the Predecessor Agreement for a period of six (6) months after the Effective Date. However, Eagle agrees (i) not to order after the Effective Date any additional supplies and documents which have imprinted thereon the trademarks that were the subject of the Predecessor Agreement; and (ii) as soon as practicable during said six-month period, to remove all signs and identifiers used in the Eagle Business that refer to Centex.
TRADEMARK LICENSE AND DOMAIN NAME AGREEMENT | Page 2 of 9 |
2.3 Eagle acknowledges and agrees that six months after the Effective Date, it can no longer use or display the name “Centex” or any variations thereof, or other trademarks, tradenames, logos or identifiers using the name “Centex” or otherwise owned by or licensed to Centex which have not been assigned or licensed to Eagle without the prior written consent of Centex. However, nothing contained in this Agreement shall prevent Eagle from using the “Centex” name in public filings with governmental authorities, materials intended for distribution to Eagle stockholders, or any other communication in any medium which describes the current or former relationship between Centex, CXP and/or Eagle.
3. | THE CENTEX MATERIALS MARKS |
3.1 License Grant. Centex hereby grants to CM, and CM hereby accepts, a non-sublicensable, exclusive, perpetual, and royalty-free license to use the Centex Materials Marks in connection with its ready-mix concrete and aggregates operations within the State of Texas, subject to the limitations set forth in this Agreement. The grant of the license hereunder to the Centex Materials Marks is non-transferable and non-assignable, except that CM may transfer and/or assign the license to a Subsidiary that is the surviving company of a merger, reorganization or consolidation with CM or another Subsidiary of the Eagle Group. Except as expressly set forth herein, no rights or licenses are granted to CM by Centex with respect to any other trademark, service xxxx, and/or trade name other than the Centex Materials Marks.
3.2 Ownership. CM acknowledges that Centex owns the Centex Materials Marks and all rights therein and that nothing in this Agreement shall give CM any right, title or interest in or to the Centex Materials Marks other than pursuant to the license granted hereby.
3.3 No Challenge. CM agrees that it will do nothing inconsistent with Centex’s ownership of the Centex Materials Marks and shall not claim adversely to Centex, or assist any third party in attempting to claim adversely to Centex, with regards to such ownership. CM agrees that it will not challenge the title of Centex to the Centex Materials Marks, oppose any registration thereof, or challenge the validity of this Agreement or the licenses granted herein.
3.4 Maintenance. All costs associated with maintaining or renewing the Centex Materials Marks shall be borne by CM. CM, in its discretion, shall have the sole authority to decide whether to maintain and renew registrations for the Centex Materials Marks. At CM’s request and cost, Centex shall cooperate with CM and shall in general take such actions as are necessary to facilitate the maintenance and renewal of the Centex Materials Marks, including timely executing all documents necessary to do so, including without limitation powers of attorney, declarations, and affidavits. CM shall provide Centex any reasonably required information requested by Centex to facilitate its timely execution of such documents.
3.5 Quality Control.
TRADEMARK LICENSE AND DOMAIN NAME AGREEMENT | Page 3 of 9 |
(a) CM and Centex acknowledge and agree that Centex is intimately familiar with CM’s abilities and expertise in the manufacture of readymix concrete and aggregates (including without limitation sand, gravel and other like material).
(b) CM agrees that all goods sold under the Centex Materials Marks will be of high quality, standard and skill. CM and Centex acknowledge and agree that due to the longstanding close working relationship between them, the fact that officer(s) of Centex are on Eagle’s Board of Directors, and given the high degree of Centex’s familiarity with CM’s abilities and expertise in the conduct of its business, Centex is entitled to rely upon CM’s own efforts to control the quality of the goods and services offered under the Centex Materials Marks.
(c) Notwithstanding the foregoing, Centex shall have the right to impose on CM, as necessary, other specifications or requirements not provided for in this Agreement to ensure the requisite quality standards with respect to products manufactured or sold by CM that display the Centex Materials Marks. Further, CM shall, on reasonable request and notice from Centex, make available to CM samples of goods or materials displaying the Centex Materials Marks.
3.6 Protection; enforcement.
(a) CM shall promptly notify Centex of any and all infringements, imitations, simulations or other illegal use or misuse of the Centex Materials Marks that come to CM’s attention. As the sole owner of the Centex Materials Marks, Centex shall determine whether to take any action to prevent the infringement, imitation, simulation or other illegal use or misuse of the Centex Materials Marks.
(b) CM shall render Centex all reasonable assistance in connection with any matter pertaining to the protection, enforcement or infringement of the Centex Materials Marks, whether in the courts, administrative or quasi-judicial agencies, or otherwise.
3.7 Termination. Centex shall have the right to terminate this license upon the occurrence of one or more of the following: (a) any material breach by CM of its obligations under this Agreement which remains uncured for thirty (30) days or more following written notice of such breach from Centex, or (b) CM abandons the use of the Centex Materials Marks, or provides notice to Centex of its desire to terminate the license. Upon termination of the license, CM agrees it shall immediately cease any and all use of the Centex Materials Marks.
4. | THE LICENSED MARKS |
4.1 License Grant. Centex hereby grants to Eagle, and Eagle hereby accepts, an exclusive, perpetual, worldwide, royalty-free license to use the Licensed Marks in connection with the Eagle Business, subject to the limitations set forth in this Agreement. Eagle conducts the Eagle Business through the Eagle Group. The grant of the license hereunder to the Licensed Marks (i) includes the Eagle Group’s right to use the Licensed Marks in connection with the Eagle Business, and (ii) is non-transferable and non-assignable during the two-year period following the Effective Date, except that the
TRADEMARK LICENSE AND DOMAIN NAME AGREEMENT | Page 4 of 9 |
license may be transferred and/or assigned to a Subsidiary that is the surviving company of a merger, reorganization or consolidation with another Subsidiary of the Eagle Group during such two-year period. Notwithstanding the licenses granted herein and any of the provisions hereof, no rights or licenses are granted to Eagle by Centex with respect to any other trademark, service xxxx, and/or trade name other than the Licensed Marks.
4.2 Ownership. Eagle acknowledges that Centex owns the Licensed Marks and all rights therein and that nothing in this Agreement shall give Eagle or the Eagle Group any right, title or interest in or to the Licensed Marks other than pursuant to the license granted hereby.
4.3 No Challenge. Eagle agrees that it will do nothing inconsistent with Centex’s ownership of the Licensed Marks and shall not claim adversely to Centex, or assist any third party in attempting to claim adversely to Centex, with regards to such ownership. Eagle agrees that it will not challenge the title of Centex to the Licensed Marks, oppose any registration thereof, or challenge the validity of this Agreement or the licenses granted herein.
4.4 Maintenance. All costs associated with maintaining or renewing the Licensed Marks shall be borne by Eagle. Eagle, in its discretion, shall have the sole authority to decide whether to maintain and renew registrations for the Licensed Marks. At Eagle’s request and cost, Centex shall cooperate with Eagle and shall in general take such actions as are necessary to facilitate the maintenance and renewal of the Licensed Marks, including timely executing all documents necessary to do so, including without limitation all powers of attorney, declarations and affidavits. Eagle shall provide Centex any reasonably required information requested by Centex to facilitate its timely execution of such documents.
4.5 No Liens. Centex represents and warrants that the Licensed Marks are not currently encumbered by any liens, security interests, or any rights of others; and further, Centex will not permit or allow the Licensed Marks to be sold, transferred, assigned or encumbered in any way without the prior written consent of Eagle.
4.6 Option to Purchase. After two (2) years from the Effective Date, Eagle shall have the right to purchase any or all of the right, title and interest in and to the Licensed Marks for a price to be mutually agreed to between Eagle and Centex, such price to take into account the fact that Eagle will already have the perpetual and exclusive right to use, maintain and enforce the Licensed Marks pursuant to this Agreement.
4.7 Quality Control.
(a) Centex and Eagle acknowledge and agree that Centex is intimately familiar with Eagle’s abilities and expertise in the Eagle Business and the manufacture of construction products, including without limitation cement, clinker, readymix concrete, aggregates (i.e., sand, gravel and other like material), paperboard and gypsum wallboard.
(b) Eagle agrees that all goods sold under the Licensed Marks will be of high quality, standard and skill. Centex and Eagle acknowledge and agree that due to the
TRADEMARK LICENSE AND DOMAIN NAME AGREEMENT | Page 5 of 9 |
longstanding close working relationship between them, the fact that officer(s) of Centex are on Eagle’s Board of Directors, and given the high degree of Centex’s familiarity with Eagle’s abilities and expertise in the Eagle Business, Centex is entitled to rely upon Eagle’s own efforts to control the quality of the goods and services offered under the Licensed Marks.
(c) Notwithstanding the foregoing, Centex shall have the right to impose on Eagle, as necessary, other specifications or requirements not provided for in this Agreement to ensure the requisite quality standards with respect to products manufactured or sold by Eagle that display the Licensed Marks. Further, Eagle shall, on reasonable request and notice from Centex, make available to Centex samples of goods or materials displaying the Licensed Marks.
4.8 Protection; Enforcement.
(a) In the event of any unauthorized application, registration, use or infringement of or for the Licensed Marks by third parties, Eagle may institute legal proceedings against such third parties, in its sole discretion and at its own cost, and may retain any recovery obtained. Eagle may also, at any time, without obtaining the consent or approval of Centex, request that any third party cease and desist from any unauthorized use or infringement of any of the Licensed Marks.
(b) Centex shall render all reasonable assistance to Eagle in connection with any matter pertaining to the protection, enforcement or infringement of the Licensed Marks, whether in the courts, administrative or quasi-judicial agencies, or otherwise.
5. THE EAGLE MARKS
5.1 Ownership. Centex acknowledges and agrees that Eagle (or an Eagle Group Subsidiary) owns all right, title and interest in and to the Eagle Marks, and will do nothing inconsistent with the ownership of the Eagle Marks.
5.2 Unregistered marks; common law rights. Centex acknowledges and agrees that Eagle (or an Eagle Group Subsidiary) may have developed common law rights in certain unregistered marks in the conduct of the Eagle Business. Centex hereby disclaims any and all right, title and interest that it may have in and to such marks, if any.
6. DOMAIN NAMES
6.1 Right to Use. Centex hereby grants to Eagle, and Eagle hereby accepts, an exclusive, perpetual, worldwide, royalty-free right to use the Domain Names in connection with the Eagle Business, subject to the limitations set forth in this Agreement. Eagle conducts the Eagle Business through the Eagle Group. The rights hereunder to use the Domain Names include the Eagle Group’s right to use the Domain Names in connection with the Eagle Business.
6.2 CXP Domain Name. Centex shall maintain the registration for the CXP Domain Name for a period of two (2) years following the Effective Date. Not later than
TRADEMARK LICENSE AND DOMAIN NAME AGREEMENT | Page 6 of 9 |
thirty (30) days following the Effective Date, Centex will take such steps to ensure that the CXP Domain Name resolves to the new Eagle website. Eagle agrees to provide Centex with the information necessary to do so. At the end of the two-year period, Centex will no longer be obligated to maintain the CXP Domain Name.
6.3 The Parties agree that the registration information for the CXP Domain Name and the Domain Names shall list Centex as the Registrant of record; however, Centex shall cause Eagle’s designated person’s contact information to be listed as the Technical Contact and the Administrative Contact.
6.4 All costs associated with maintaining or renewing the CXP Domain Name and Domain Names shall be borne by Eagle. Eagle, in its discretion, shall have the sole authority to decide whether to maintain and renew registrations for the Domain Names. At Eagle’s request and cost, Centex shall cooperate with Eagle and shall in general take such actions as are necessary to facilitate the maintenance and renewal of the Domain Names. Eagle agrees to provide Centex with any reasonably required information requested by Centex to maintain the Domain Names.
6.5 Option to Purchase. After two (2) years from the Effective Date, Eagle shall have the right to purchase all right, title and interest in and to the Domain Names for a price to be mutually agreed to between Eagle and Centex, such price to take into account the fact that Eagle will already have the perpetual and exclusive right to use and maintain the Domain Names pursuant to this Agreement.
7. GENERAL
7.1 Notices. All notices and other communications required or permitted to be given hereunder shall be in writing and hand delivered or mailed by registered or certified mail (return receipt requested) or sent by any means of electronic message transmission with delivery confirmed (by voice or otherwise), or by overnight courier service to the Parties at the following addresses (or at such other addresses for a Party as shall be specified by like notice) and will be deemed given on the date on which such notice is received:
If to Centex: | Centex Corporation 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 00000-0000 Facsimile: |
|||||
Attn: | ||||||
If to Eagle: | Eagle Materials Inc. 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 00000-0000 Facsimile: |
|||||
Attn: | ||||||
If to CM: | Centex Materials, LLC |
TRADEMARK LICENSE AND DOMAIN NAME AGREEMENT | Page 7 of 9 |
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 00000-0000 Facsimile: |
||||||
Attn: | ||||||
7.2 Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and to the extent that this agreement is inconsistent with any prior agreement(s) between the Parties, the terms of this agreement will control.
7.3 Amendment. This Agreement shall not be amended or otherwise modified except by a written agreement dated subsequent to the date of this Agreement and signed on behalf of Centex, CM and Eagle by their respective duly authorized representatives.
7.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas.
7.5 Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and the Parties’ respective successors and assigns.
7.6 No Waiver. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
7.7 Savings Clause. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
7.8 Further Assurances. The Parties agree to take such further action and execute, deliver and/or file such documents or instruments as are necessary to carry out the terms and purposes of this Agreement.
7.9 Section Headings. The section headings used in this Agreement are intended for convenience only and shall not be deemed to supersede or modify any provisions.
TRADEMARK LICENSE AND DOMAIN NAME AGREEMENT | Page 8 of 9 |
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
CENTEX CORPORATION | EAGLE MATERIALS INC | |||||||||||||||||||
By: | By: | |||||||||||||||||||
Name: | Name: | |||||||||||||||||||
Title: | Title: | |||||||||||||||||||
CENTEX MATERIALS,LLC | ||||||||||||||||||||
By: | ||||||||||||||||||||
Name: | ||||||||||||||||||||
Title: | ||||||||||||||||||||
TRADEMARK LICENSE AND DOMAIN NAME AGREEMENT | Page 9 of 9 |
EXHIBIT 1.1
CENTEX MATERIALS MARKS
UNITED STATES
Xxxx | Registration No. | Registration Date | ||||
CENTEX MATERIALS, LP |
1,968,670 |
April 16, 1996 | ||||
[CENTEX CONSTRUCTION PRODUCTS LOGO] |
1,932,900 |
November 7, 0000 |
XXXXXX XXXXXXX
Xxxx | Registration No. | Registration Date | ||||
[CENTEX CONSTRUCTION PRODUCTS LOGO] |
2,044,516 |
October 11, 1996 |
TRADEMARK LICENSE AGREEMENT — EXHIBIT 1 | Page 1 of 3 |
EXHIBIT 1.2
DOMAIN NAMES
xxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxx.xxxx
xxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxx.xxxx
xxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxx.xxxx
xxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxx.xxxx
xxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxx.xxxx
xxxxxxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxxxxxx.xxxx
xxxxxxxxxxxx.xxx
xxxxxxxxxxxx.xxx
xxxxxxxxxxxx.xxxx
xxxxxxxxxxxx.xxx
xxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxx.xxx
xxxxxxxxx.xxx
xxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxx.xxxx
xxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxx.xxxx
xxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxx.xxxx
xxxxxxxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxx.xxxx
xxxxxxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxxx.xxxx
xxxxxxxxxxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxxxxxxxxxx.xxxx
xxxxxxxxxxxxx.xxx
xxxxxxxxxxxxx.xxxx
xxxxxxxxxxxxxxxxxxxx.xxx
xxxxxxxxxxxxxxxxxxxx.xxxx
TRADEMARK LICENSE AGREEMENT — EXHIBIT 1 | Page 2 of 3 |
EXHIBIT 1.5
EAGLE MARKS
UNITED STATES
Xxxx | Registration No. | Registration Date | ||||
FIRE-ROC (owner: Centex Construction Products, Inc. | U.S. Reg. No. | |||||
2,555,028 | April 2, 2002 |
|||||
N Design (owner: Nevada Cement Co.) [N DESIGN LOGO] | Nevada State | |||||
Registration | September 18, 1996 | |||||
R REPUBLIC & Design (owner: Centex
Construction Products, Inc.)
[R REPUBLIC LOGO] |
1,023,975 | October 28, 1975 |
||||
REPUBLIC FIBER COMPANY (owner: Centex Construction Products,
Inc.) |
2,606,288 | August 13, 2002 |
||||
REPUBLIC 54 (owner: Centex
Construction Products, Inc.) |
1,869,593 | December 27, 1994 |
||||
REPUBLIC GYPSUM (owner: Centex
Construction Products, Inc.) |
971,145 | October 23, 1973 |
||||
REPUBLIC GYPSUM COMPANY (owner: Centex Construction Products,
Inc.) |
2,627,276 | October 1, 2002 |
||||
REPUBLIC PAPERBOARD COMPANY
(owner: Centex Construction
Products, Inc.) |
2,651,115 | November 19, 2002 |
||||
REPUBLIC PAPERBOARD COMPANY &
Design (owner: Centex Construction
Products, Inc.) [REPUBLIC PAPERBOARD COMPANY LOGO] |
2,616,542 | September 10, 2002 |
||||
Star Design (owner: Centex
Construction Products, Inc.)
[R REPUBLIC LOGO] |
1,543,501 | June 13, 1989 |
||||
TEXAS-LEHIGH (owner: Texas-Lehigh
Cement Company, LP) |
2,057,265 | April 29, 0000 |
||||
XXXXXXXXXXX (xxxxx: Centex
Construction Products, Inc.) |
1,287,951 | July 31, 1984 |
TRADEMARK LICENSE AGREEMENT — EXHIBIT 2 | Page 1 of 1 |
EXHIBIT 1.6
LICENSED MARKS
UNITED STATES
Xxxx | Registration No. | Registration Date | ||||
AMERICAN GYPSUM |
2,171,076 | July 7, 1998 |
||||
AQUABLOC |
971,158 | October 23, 1973 |
||||
EAGLEROC |
2,222,618 | February 9, 1999 |
||||
FIREBLOC |
735,175 | July 31, 1962 |
||||
ILLINOIS CEMENT CO |
2,023,201 | December 17, 1996 |
||||
ILLINOIS CEMENT CO. & DESIGN
[ILLINOIS CEMENT CO. LOGO] |
2,023,266 | December 17, 1996 |
||||
M
& DESIGN [M & DESIGN LOGO] |
1,973,081 | May 7, 1996 |
||||
XXXXXXX READYMIX, INC. |
2,023,202 | December 17, 1996 |
||||
MISC. DESIGN (EAGLE LOGO) |
2,213,119 | December 22, 1998 |
||||
MOUNTAIN CEMENT COMPANY |
1,971,499 | April 30, 1996 |
||||
N & DESIGN (Nevada Cement Logo) |
2,005,807 | October 8, 1996 |
||||
NEVADA CEMENT |
2,023,203 | December 17, 1996 |
||||
SMOOTHROC |
2,648,202 | November 12, 2002 |
||||
TL & Design
[TL& DESIGN LOGO] |
2,004,137 | October 1, 1996 |
||||
WA & DESIGN
[WA & DESIGN LOGO] |
1,973,080 | May 7, 1996 |
||||
WESTERN AGGREGATES |
1,967,105 | April 9, 1996 |
TRADEMARK LICENSE AGREEMENT — EXHIBIT 2 | Page 2 of 1 |
Xxxx | Registration No. | Registration Date | ||||
WISCONSIN CEMENT CO. |
2,023,200 |
December 17, 1996 | ||||
WISCONSIN CEMENT CO. & Design [WISCONSIN CEMENT CO. LOGO] |
2,021,819 |
December 10, 0000 |
XXXXXX
Xxxx | Registration No. | Registration Date | ||||
AMERICAN GYPSUM |
542,536 |
March 16, 2001 | ||||
AQUABLOC |
542,533 |
Xxxxx 00, 0000 | ||||
XXXXXXXX |
TMA544134 |
April 25, 2001 | ||||
FIREBLOC |
563,215 |
June 10, 2002 | ||||
FIRE-BLOC |
266,900 |
February 26, 1982 | ||||
MISC. DESIGN (EAGLE LOGO) |
XXX000000 |
April 25, 2001 |
EUROPEAN COMMUNITY
Xxxx | Registration No. | Registration Date | ||
AQUABLOC | XXX000000 | Xxxxx 00, 0000 |
XXXXXX
Xxxx | Registration No. | Registration Date | ||||
AMERICAN GYPSUM |
692,140 |
Xxxxx 00, 0000 | ||||
XXXXXXXX |
567,033 |
December 15, 1997 | ||||
EAGLEROC |
579,960 |
June 29, 1998 | ||||
FIREBLOC |
567,034 |
December 15, 1997 | ||||
MISC. DESIGN (EAGLE LOGO) |
592,961 |
November 24, 1998 |
TRADEMARK LICENSE AGREEMENT — EXHIBIT 2 | Page 3 of 1 |
NEW MEXICO
Xxxx | Registration No. | Registration Date | ||
RIO GRANDE DRYWALL SUPPLY CO. | TK99052001 | May 20, 1999 |
TRADEMARK LICENSE AGREEMENT — EXHIBIT 2 | Page 4 of 1 |