STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is entered into as of October ___, 1999
("Agreement"), by and between WEBE ENTERPRISES, LTD., a Michigan corporation, or
its assigns ("Purchaser"), and ISG RESOURCES, INC. ("Seller").
W I T N E S S E TH:
WHEREAS, the Seller is the owner and holder of all the outstanding
shares of common stock of PNEUMATIC TRUCKING, INC. ("Pneumatic"), a Michigan
corporation, which shares are hereinafter referred to as the "Purchased Shares";
and
WHEREAS, the Seller desires to sell, and the Purchaser desires to
purchase the Purchased Shares, all upon and subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants herein contained, the parties hereby covenant and agree
as follows:
ARTICLE I
Purchase and Sale of Shares
1.1 Purchase and Sale. Subject to the terms, provisions and conditions
of this Agreement, and on the basis of the representations and warranties herein
contained, the Seller agrees to sell to Purchaser, and the Purchaser agrees to
purchase from Seller, at the Closing (as hereinafter defined), all of the
Purchased Shares consisting of 1,000 shares of the common stock of Pneumatic,
which is all of its issued and outstanding shares and Seller represents that
there are no stock options, warrants or preferred stock or common stock held by
anyone or any entity other than the Seller whose entire interest in Pneumatic is
being sold to Purchaser pursuant to this Agreement.
Seller represents and warrants that the shares set forth above are
owned by it free and clear of any and all claims of any nature or kind
whatsoever which could or would affect the transfer or sale contemplated by this
Agreement. Seller further represents and warrants that it has not pledged,
encumbered or hypothecated the Purchased Shares.
1.2 Purchase Consideration. The consideration for the Purchased Shares
("Purchase Price") to be paid by Purchaser to Seller shall be SEVEN HUNDRED AND
FIFTY THOUSAND DOLLARS ($750,000.00).
1.3 Manner of Payment of Purchase Price. The SEVEN HUNDRED AND FIFTY
THOUSAND DOLLARS ($750,000.00) Purchase Price shall be paid by the Purchaser at
Closing to Seller, by a cashier's check or checks or wire transfer.
ARTICLE II
Closing
2.1 Date of Closing. The transactions contemplated hereby shall close
at a date and time mutually agreeable to Purchaser and Seller, but no later than
October 31, 1999, which Closing shall be at the offices of Xxxxxxxx and Xxxxxxx,
P.C., 00000 Xxxxxxxx Xxxx, Xxxx, Xxxxxxxx, or at such other place or time as
Purchaser and Seller shall mutually agree upon in writing ("Closing").
2.2 Documents to be Delivered at Closing.
(a) Documents to be Delivered by Seller. At closing, the
Seller shall deliver to Purchaser:
(i) Certificates representing the Purchased Shares
duly endorsed in blank or accompanied by stock powers executed
in blank.
(ii) All minute books, stock records and stock books
of Pneumatic.
(iii) Resignation letters of all officers and
directors of Pneumatic.
(iv) Titles to all of the vehicles owned by Pneumatic
as such vehicles are identified on Schedule A hereto entitled
ISG Resources North Central Vehicle Listing As Of February 28,
1999.
(v) Releases of any liens on the titles to the
vehicles set forth on Schedule A (i.e., Certificate of Good
Standing of Pneumatic Trucking, Inc. as a Michigan
corporation).
(vi) Letter of Indemnification by Seller indemnifying
Purchaser against any Central States Southeast and Southwest
Area Pension Fund Withdrawal Liability accrued as of the date
of Closing.
(vii) An opinion letter from Seller's counsel in a
form satisfactory to Purchaser's counsel in accordance with
Section 5.1(j) hereof in the form of Schedule B hereto.
(viii) Such other documents as may reasonably be
requested by the Purchaser or its counsel.
(b) Documents to be Delivered by Purchaser. At the Closing,
Purchaser will deliver, or cause to be delivered to the Seller, the
following:
(i) The Purchase Price represented by a cashier's
check(s) of a national banking Institution or wire transfer to
Seller of the Purchase Price.
(ii) Certified resolutions of the Board of Directors
of Purchaser, authorizing the transactions contemplated by
this Agreement.
(iii) Such other documents as may reasonably be
requested by Seller or its counsel.
ARTICLE III
Representations and Warranties of Seller
The Seller represents and warrants to Purchaser that:
3.1 Organization and Good Standing. Pneumatic is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Michigan, and has full power and authority to own its properties and to carry on
its business as now conducted.
3.2 Charter and Bylaws. Schedule B contains true, correct and complete
copies of the Articles of Incorporation, as amended, certified as of a date
within ten (10) days of the Closing by the Michigan Secretary of State, and of
the Bylaws of Pneumatic, as amended through and including the date of this
Agreement, certified as of the date hereof by the Secretary of Pneumatic.
3.3 Capitalization. The authorized capital stock of Pneumatic consists
of 60,000 shares of common stock, $1.00 par value, of which 1,000 shares are
validly issued and outstanding, and shall be validly issued and outstanding at
Closing. The Purchases Shares shall consist of all of the Pneumatic shares which
are validly issued, fully paid and nonassessible. There are no dividends owing
or dividends which have been declared but not paid with respect to the Purchased
Shares. Pneumatic does not have any subsidiaries and does not own any interest
in any other person.
3.4 Title and Authority: Investment Representation. Seller is the
absolute owner of the Purchased Shares, free, clear and discharged of and from
any and all liens or other encumbrances, and Seller has full right, power and
authority to execute and deliver this Agreement and to perform its obligations
under this Agreement. Upon delivery of the Purchased Shares by Seller at the
Closing, duly endorsed for transfer, Purchaser will be the absolute owner of all
the Purchased Shares so delivered, free and clear of and from any and all liens
and encumbrances. This Agreement is the legal, valid and binding obligation of
Seller and is enforceable in accordance with its terms, except as the
enforcement of this Agreement may be limited by laws of general application
relating to bankruptcy, insolvency and relief of debtors.
3.5 No Commitment to Issue Capital Stock or Rights to Acquire Capital
Stock. Seller has not entered into any contract or agreement or made any
commitment to purchase, redeem, sell or otherwise transfer or issue any shares
of Pneumatic's capital stock, nor are there any outstanding options,
subscriptions, warrants, conversion rights or similar rights of any kind
convertible into any shares of Pneumatic's capital stock.
3.6 Ability to Carry Out Agreement. The execution and delivery of this
Agreement and the performance by the Seller of its obligations hereunder will
not conflict with, violate or result in any breach of or constitute a default
under any provisions of the Articles of Incorporation or Bylaws of Seller or
Pneumatic, or of any mortgage, lease, contract, franchise agreement, license,
permit, instrument, order, judgment, law, regulation or any other restriction to
which either Seller or Pneumatic is a party or by which either Seller or
Pneumatic is bound. Except for those already obtained, no consent of any
governmental authority or other third-party is required to be obtained by either
Seller or Pneumatic in connection with the Shareholders' execution, delivery or
performance of this Agreement.
3.7 Financial Statements.
(a) Pneumatic's balance sheet as of December 31, 1998, and
related statements of income, retained earnings and cash flow for, the
year ended December, 1998 (the "Financial Statement Date"), prepared by
the chief financial officer of Seller are referred to herein as the
"Pneumatic Financial Statements" and are attached hereto as Schedule C.
The Pneumatic Financial Statements (I) present fairly, in all material
respects, the financial position of Pneumatic at the Financial
Statement Date; and (ii) were prepared in conformity with generally
accepted accounting principles in a manner consistent with Pneumatic's
historic accounting practice applied on a consistent basis, except as
otherwise indicated.
(b) Pneumatic's giving effect balance sheet as of October 31,
1999, and related statements of income, retained earnings and cash flow
for the 10 months ended October 31, 1999, are attached as Schedule D
and are referred to herein as the "Pneumatic Interim Financial
Statements." The Pneumatic Interim Financial Statements (I) present
fairly, in all material respects, the financial position of Pneumatic
at October 31, 1999; and (ii) were prepared in conformity with
generally accepted accounting principles in a manner consistent with
Pneumatic's historic accounting practice applied on a consistent basis,
subject to year-end closing adjustments.
(c) Schedules C and D shall sometimes be referred to jointly
as the "Financial Statements."
3.8 Taxes of Pneumatic. Pneumatic has paid any and all taxes, license
fees, other charges levied, assessed, or imposed on the business and any of the
property of Pneumatic, except those that are not due and payable. All taxes,
franchises, contributions, and other charges required to be paid to governmental
agencies by Pneumatic, with respect to its operations to the date of the closing
will be paid as they become due.
3.9 Tax returns of Pneumatic.
(a) Preparation. Pneumatic has duly prepared and filed any and
all tax returns and reports required by federal, state, and local tax
authorities.
(b) Correctness. The returns filed are correct, true, and
complete;
(c) Payment. Any and all such taxes, including sales,
corporate franchise, property, excise, and use taxes have been paid or
are adequately provided for on the latest Pneumatic financial
statement; and
(d) No dispute. Pneumatic is not involved in any dispute with
any tax authority about the amount of taxes due, nor has it received
any notice of any deficiency, audit, or other indication of deficiency
from any tax authority not disclosed to the parties to this Agreement.
3.10 Unreported and Contingent Liabilities. Except as set forth in the
Financial Statements or on Schedule E attached hereto, Seller has no liabilities
or obligations, whether accrued, absolute, fixed, known or unknown, contingent
or otherwise, existing, arising out of or relating to any transactions entered
into, or state of facts existing, on or prior to the date of this Agreement.
3.11 Licenses and Permits. Pneumatic possesses all material licenses or
permits necessary to conduct its respective business as now operated, including
the requisite operating authority issued by the Surface Transportation Road of
the Federal Highway Administration and the Michigan Public Service Commission.
Such licenses and permits are valid and in full force and effect. No action or
claim is pending, or, to the knowledge of Seller, threatened, to revoke or
terminate any such licenses or permits or declare any of them invalid in any
respect.
3.12 Litigation. Except as set forth on Schedule F, there is not
pending against Pneumatic, or, to the knowledge of Seller, threatened against
it, any claim, action, suit, arbitration proceedings, governmental proceeding or
investigation or other proceeding of any character.
3.13 Compliance With Laws Generally. Pneumatic has substantially
complied with all laws, rules, regulations and ordinances materially affecting
its business. Except for laws, rules, regulations or ordinances that are or are
to be of general applicability, there are no existing or, to the knowledge of
the Seller, proposed laws, rules, regulations or ordinances of such a nature as
could be reasonably expected to materially adversely affect the continued
conduct of Pneumatic's business in the manner presently conducted.
3.14 Trademark, etc. Attached hereto as Schedule G is a list of all
copyrights, trade names and material trademarks and trade secrets as to which
Pneumatic claims an ownership interest or as to which Pneumatic is a licensee or
licensor (the "Pneumatic Intellectual Property"). Pneumatic has good and
marketable title to or possesses adequate licenses or other valid rights to use
the Pneumatic Intellectual Property, free and clear of all liens, charges,
claims and other encumbrances. To the knowledge of the Seller, the use of the
Pneumatic Intellectual Property does not misappropriate, infringe upon or
conflict with any patent, copyright, trade name, trade secret or trademark of
any third-party. No party has filed a claim (or, to the knowledge of Seller,
threatened to file a claim) against Pneumatic alleging that it has violated,
infringed on or otherwise improperly used the intellectual property rights of
such party and Pneumatic has not violated or infringed any trademark, trade
name, service xxxx, service name, copyright or trade secret held by others.
3.15 Equipment. It is agreed that the motor vehicle equipment set forth
on Schedule A is conveyed by Seller and accepted by Purchaser "as is" and "with
all faults" and that Seller is making no representations or warranties regarding
any aspect thereof. It being understood that Purchaser has obtained or will
obtain its own independent assurances as to all such matters to such extent as
Purchaser, in its discretion, has deemed necessary or appropriate. Purchaser
acknowledges that it is entering into this purchase on the basis of Purchaser's
own investigation of the motor vehicle equipment and other assets of Pneumatic.
Except as otherwise expressly set forth herein, Purchaser further acknowledges
that Seller, Seller's agents and other persons acting on behalf of Seller, have
made no representation or warranty of any kind in connection with any matter
relating to the condition, value or fitness for use of the motor vehicle
equipment and/or other assets of Pneumatic. Purchaser hereby waives, releases,
remises, acquits and forever discharges Seller and Seller's agents or any other
person acting on behalf of Seller, of and from any claims, actions, causes of
action, demands, rights, damages, liabilities, costs, expenses or compensation
whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which
Purchaser now has or which may arise in the future on account of or in any way
connected with the condition of the motor vehicle equipment and/or such other
assets.
3.16 States Incorporated or Licensed to Do Business In. To the best of
Seller's knowledge, Pneumatic is duly licensed to do business in those states
where necessary to carry on the business of Pneumatic and all Federal, State,
County and Municipal tax returns, including but not limited to fuel tax returns
with the various states, currently due have been filed and the taxes paid.
3.17 Insurance Policies. To the best of Seller's knowledge, Pneumatic
has in effect those insurance policies normally maintained by it in order to
conduct its business. Schedule H attached hereto contains a copy of all such
insurance policies and/or certificates.
3.18 Central States Southeast and Southwest Areas Pension Fund.
Pneumatic contributes to the Central States Southeast and Southwest Areas
Pension Fund on behalf of its driver employees and has or will obtain from such
fund a written estimate of any withdrawal liability it would be subject to
pursuant to ERISA (29 U.S.C.A. Section 1001 et seq.) which shall be attached
hereto as Schedule I and shall be dated within 100 days of the Closing and
Seller agrees to indemnify Purchaser in respect to any such liability which may
have existed as of October 27, 1999.
3.19 Workers' Compensation Claims of Employees. Schedule J attached
hereto contains, to the best of Seller's knowledge, a listing of all filed or
threatened Workers' compensation claims.
3.20 Real Estate. Pneumatic owns no real estate and is not a party to
any terminal or office lease.
3.21 Disclosure. No representations or warranties by Seller in this
Agreement, and no document, certificate or other writing furnished by Seller to
the Purchaser, to the best of the knowledge of the Seller, contains any untrue
statements of material fact, or omits any material fact necessary to make the
statements herein or therein not misleading.
3.22 Representations and Warranties as of the Closing Date. Each of the
representations and warranties made by the Seller hereunder shall be deemed to
have been made again on and as of the Closing Date.
ARTICLE IV
Representations and Warranties of Purchaser
Purchaser represents and warrants to the Seller as follows:
4.1 Organization. Purchaser is a corporation formed under the laws of
the State of Michigan and is duly organized, validly existing and in good
standing pursuant to the laws of the State of Michigan.
4.2 Authority Relative to This Agreement. Purchaser or its assigns has
or will have, prior to Closing, full legal power and authority to execute and
deliver the Agreement and all agreements contemplated hereby. This Agreement
shall be duly and validly executed by Purchaser, and shall constitute a valid
and binding agreement of Purchaser enforceable against Purchaser in accordance
with its terms.
4.3 Purchase for Investment. Purchaser is acquiring the Purchased
Shares as a means of acquiring the business of Pneumatic in order to own and
operate such business, and is not acquiring the Purchased Shares with a view
towards their subsequent sale, transfer of distribution, although Purchaser
shall have the right to freely seek, pledge or encumber the shares being
acquired.
Purchaser has 10 or fewer security holders or stockholders.
Purchaser, either alone, or with the Purchaser's representatives, has
sufficient knowledge and experience concerning investments generally and
Pneumatic's in particular, such that it is able to evaluate the risks and merits
of this investment. Purchaser has had full opportunity to make all inquiries it
deems appropriate with respect to the business and affairs of Pneumatic and has
had such inquiries answered to its full satisfaction. Purchaser represents that
no commission is being paid now or owed in connection with this transaction to
any party.
4.4 Collective Bargaining Agreements. After the execution, Pneumatic
shall continue in full force and effect its collective bargaining agreements
with Locals 406 and 486 affiliated with the International Brotherhood of
Teamsters as extended or renegotiated pursuant to 5.1(b) hereof in accordance
with their terms on a non-interrupted basis and shall also continue to make
contributions to any applicable multi-employer pension plans in accordance with
their terms on a non-interrupted basis. Seller shall take no action to interfere
with such Agreements and represents that there are no written employment
agreements between Pneumatic and any third-party. Schedule M attached hereto
contains copies of the Collective Bargaining Agreements of Pneumatic, as well as
signed participation agreements with employee benefit funds resulting therefrom.
4.5 Disclosure. No representations or warranties by Purchaser in this
Agreement, and no document, certificate or other writing furnished by Purchaser
to the Seller, to the best of the knowledge of the Purchaser, contains any
untrue statements of material fact, or omits any material fact necessary to make
the statements herein or therein not misleading.
4.6 Correct on Closing Date. The representations and warranties
contained herein will be true and correct on and as of the Closing with the same
effect as if were made on and as of Closing.
ARTICLE V
Conditions Precedent to the Performance by the Purchaser
and the Seller of Their Obligations Under This Agreement
5.1 Purchaser's Conditions. The obligation of the Purchaser to complete
the purchase of the Purchased Shares hereunder shall be subject to the
satisfaction of, or compliance with, at or before the Closing, each of the
following conditions precedent (each of which is hereby acknowledged to be
inserted for the exclusive benefit of the Purchaser and may be waived by it in
whole or in part):
(a) Financing. The Purchaser, upon application for appropriate
financing of the Purchase Consideration within forty-five (45) days of
the execution of this Agreement, shall obtain financing from a banking
institution upon terms and conditions which in Purchaser's sole
discretion are acceptable to it.
(b) Labor Agreements. The Purchaser shall obtain an extension
of or shall have renegotiated the existing Collective Bargaining
Agreements with Teamsters Locals 406 and 486 covering the drivers of
Pneumatic, which extension or renegotiation shall be under terms and
conditions satisfactory to Purchaser in its sole discretion.
(c) ISG Hauling Agreement. The Seller shall enter into the Fly
Ash Hauling Agreement with Purchaser in the form attached hereto as
Schedule N.
(d) Performance of Obligations. The Seller and Pneumatic shall
have performed or complied with, in all respects, all of their
obligations, covenants and agreements hereunder.
(e) Receipt of Closing Documentation. All documentation
relating to the due authorization and completion by the Seller of the
sale and purchase hereunder of the Purchased Shares, and all actions
and proceedings taken on or prior to the Closing in connection with the
performance by the Seller of its obligations pursuant to this
Agreement, and the documentation provided to the Purchaser hereunder,
shall be reasonably satisfactory to the Purchaser and its counsel, and
the Purchaser shall have received copies of all such documentation or
other evidence as it may reasonably request in order to establish the
consummation by the Seller of the transactions contemplated hereby and
the taking of all proceedings by the Seller in connection therewith in
compliance with these conditions, in form (as to certification and
otherwise) and substance reasonably satisfactory to the Purchaser.
(f) Subleases. Seller shall sought the consent of the
respective landlords and have obtained permission from such landlords
to enter into Subleases with Purchaser for a portion of its leased
facilities which would permit the Purchaser to continue to park and/or
store a similar quantity of motor vehicles and equipment as is
presently being stored at Muskegon, Lansing and Erie, Michigan, which
subleases shall be in the form of Schedules O, P and Q attached hereto.
(g) Consents, Authorization and Registrations. All consents,
approvals, orders and authorizations of any persons or governmental
authorities, including courts (or registrations, declarations, filings
or recordings with any such authorities) required in connection with
the completion of any of the transactions contemplated by this
Agreement, the execution of this Agreement, the Closing or the
performance of any of the terms and conditions hereof, shall have been
obtained on or before the Closing including, without limiting the
generality of the foregoing, any and all consents or approvals to the
sale of the Purchased Shares to the Purchaser required from any federal
or state authority having jurisdiction over the issuance of operating
authorities or licenses, unless such consents, orders or authorizations
are waived by the Purchaser in writing.
(h) Directors and Officers of Pneumatic. There shall have been
delivered to the Purchaser, on or before the Closing, the resignations
of Pneumatic's Officers and Directors from such positions, and duly
executed comprehensive releases from such Officers and Directors as
well as all non-union employees of Pneumatic of all claims against
Pneumatic, other than those arising as a result of this Agreement,
including claims relating to any existing Employment Agreements between
Pneumatic and any such parties, which Employment Agreements shall be
canceled as of the Closing.
(i) Preservation of Business. Seller shall use its best
efforts to preserve the business organization of Pneumatic intact, to
keep available to Purchaser the services of the present employees,
except those referenced hereinbefore, of Pneumatic and to preserve for
Purchaser the present relationships between Pneumatic on the one hand
and its suppliers, customers and others having business relations with
it, on the other hand.
(j) Opinion of Counsel. That at Closing, Seller's counsel
shall give its legal opinion in a form satisfactory to Purchaser, in
respect to the matters contained in Sections 3.1, 3.2, 3.3, 3.4, 3.5,
3.6, 3.10, 3.12 and 3.14.
(k) Lien Search. Seller shall provide Purchaser with a tax
lien and financing statement search, both certified to a date later
than the date of this Agreement, in respect to public records of the
states of Utah and Michigan for both Seller and Pneumatic.
(l) Purchaser shall have been given access to and shall have
conducted a due diligence review of the assets, business and legal
status of Pneumatic satisfactory to it, in it's sole discretion.
5.2 Seller's Conditions. The obligations of the Seller to complete the
sale of the Purchased Shares hereunder shall be subject to the satisfaction of,
or compliance with, at or before the Closing, each of the following conditions
precedent (each of which is hereby acknowledged to be inserted for the exclusive
benefit of the Seller and may be waived by it in whole or in part):
(a) Existing Labor Issues. The Seller shall have resolved to
its satisfaction any pending grievances, threatened grievances or other
claims, arising pursuant to the Collective Bargaining Agreements with
Local Unions Number 406 and 486 as of the date of Closing which
resolution shall be in the form of Schedule R hereto and executed by
such local unions.
(b) Assumption of Collective Bargaining Agreements. Purchaser
shall have agreed in writing in the form of Schedule S hereto to assume
all obligations pursuant to the Collective Bargaining Agreements set
forth in Schedule M hereto or such agreements, successors as of the day
after the Closing.
(c) Performance of Obligations. The Purchaser shall have
performed or complied with, in all respects, all its other obligations,
covenants and agreements hereunder.
(d) Receipt of Closing Documents. All documentation relating
to the due authorization and completion by the Purchaser of the sale
and purchase hereunder of the Purchased Shares, and all actions and
proceedings taken on or prior to the Closing in connection with the
performance by the Purchaser of its obligations under this Agreement,
shall be reasonably satisfactory to the Seller, and the Seller shall
have received copies of all such documentation or other evidence as it
may reasonably request in order to establish consummation by the
Purchaser of the transaction contemplated hereby and the taking by it
of all corporate proceedings in connection therewith in compliance with
these conditions, in form (as to certification and otherwise) and
substance reasonably satisfactory to the Seller.
ARTICLE VI
Indemnification
Indemnification. Seller shall defend, indemnify and hold harmless Purchaser, its
directors, officers, shareholders, successors and assigns, from and against any
and all costs, losses, claims, suits, actions, assessments, diminution in value,
liabilities, fines, penalties, damages (compensatory, consequential and other),
and expenses (including reasonable legal fees) to the extent resulting from:
(a) any inaccuracy and any misrepresentation or breach of any
warranty of the Seller contained in this Agreement;
(b) Seller's failure to perform or observe in full, or to have
performed in or observed in full, any covenant, agreement or condition
to be performed or observed by the Seller under this Agreement or any
documents related to this transaction;
(c) Seller shall have no liability (for indemnification or
otherwise) with respect to any representation or warranty, or covenant
or obligation to be performed and complied with prior to the closing,
unless within a period of two (2) years following the date of closing,
Purchaser notifies Seller of a claim specifying the factual basis of
that claim in reasonable detail.
ARTICLE VII
Access and Information
7.1 Due Diligence. During the period from the date of this Agreement to
Closing, the parties agree:
(a) Release of Information. Seller shall or cause Pneumatic to
provide to Purchaser and to Purchaser's agents full access, during
normal business hours, throughout the period before the Closing, to all
of Pneumatic's assets, properties, books, contracts, commitments and
records and shall furnish to Purchaser during that period all the
information concerning Pneumatic's affairs that Purchaser may
reasonably request.
(b) Confidentiality. Purchaser acknowledges that, pursuant to
the right to inspect Pneumatic's books, records, and other documents
and material, Purchaser may become privy to confidential information of
Pneumatic, and that communication of such confidential information to
third parties (whether or not such communicated information is
authorized by Purchaser) could injure Pneumatic's business in the event
that this transaction is not completed. Purchaser agrees to take
reasonable steps to ensure that such information about Pneumatic,
obtained by Purchaser, shall remain confidential and shall not be
disclosed or revealed to outside sources, and further agrees not to
solicit any customers of Pneumatic disclosed from such confidential
information. As used in this Agreement, confidential information
includes information ordinarily known only to Pneumatic personnel, and
information such as customer lists, supplier lists, trade secrets,
channels of distribution, pricing policy and records, inventory
records, and other information normally understood to be confidential
or designated as such by Pneumatic.
ARTICLE VIII
Covenants of the Parties
8.1 Conduct of Business Prior to Closing. During the period from the
date of this Agreement to Closing, the Seller will cause Pneumatic to:
(a) Conduct Business in Ordinary Course. Except as otherwise
contemplated or permitted by this Agreement, or as specifically
authorized in writing by the Purchaser, to maintain and repair
Pneumatic's vehicles as set forth on Schedule A, in accordance with
past practice and to conduct its business in the ordinary and normal
course thereof with no change from prior accounting practices and not,
without the prior written consent of the Purchaser, to enter into any
transaction which, if effected before the date of this Agreement, would
materially affect the assets or liabilities of Pneumatic.
(b) Insurance. To maintain in force policies of insurance
similar to those types of policies set forth in Schedule H and in such
amounts presently maintained by Pneumatic.
(c) Perform Obligations. To comply with all laws affecting the
operation of the business of Pneumatic.
ARTICLE IX
General
9.1 Expenses. All costs and expenses (including, without limitation,
the fees and disbursements of legal counsel and any accountant's or consultants'
fees) incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring same.
9.2 Records. The Seller agrees at the Closing in turn over to Purchaser
any and all records including but not limited to corporate minute books, stock
record books and tax returns in its possession relating to Pneumatic, which
records have been in the control of Seller.
9.3 Time. Time shall be of the essence hereof.
9.4 Notices. Any notice or other writing required or permitted to be
given hereunder or for the purposes hereof (hereinafter called a "Notice") to
any party shall be sufficiently given if delivered personally, by recognized
courier service or if transmitted by facsimile or other form of recorded
communication tested prior to transmission to such party with an acknowledgment
of receipt from the recipient:
In the case of a Notice to the Seller: ISG Resources, Inc.
Attn: General Counsel
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, XX 00000
In the case of a Notice to Purchaser: Xxxxxxx Xxxxxxxxx
X.X. Xxx 0
Xxxxx, XX 00000
with a copy to: Xxxx X. Eberhand, Jr., Esq.
000 Xxxxx Xxxxxxx Xxxxxx
XxXxxxxx, XX 00000
and
Xxxxxxx Xxxxxxxx
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
with a copy to: Xxxxxx X. Xxxxxx, Esq.
000 X. Xxxxxxxx Xxx., Xxx. 0000
Xxxxxxx, XX 00000-0000
with an additional copy to: Xxxxxx X. Xxxxxxx, Esq.
22375 Xxxxxxxx, XX Xxx 000
Xxxxxxxxxx, XX 00000
or at such other address as the Party to whom such writing is to be given shall
have last notified the party giving the same in the manner provided in this
Section. Any notice delivered personally or by courier service to the Party to
whom it is addressed as hereinbefore provided shall be deemed to have been given
and received on the day it is so delivered at such address, provided that if
such day is not a business day, then the notice shall be deemed to have been
given and received on the next following business day. Any notice transmitted by
facsimile or other form of recorded communication shall be deemed given and
received on the first business day after its transmission and acknowledgment of
receipt.
9.5 Assignment. The purchase of the stock, which is the subject of this
Agreement, and any rights hereunder, are assignable by the Purchaser or by the
Seller. This Agreement shall inure to the benefit of and be binding upon the
Parties and their respective successors (including any successor by reason of
amalgamation of any party), heirs and assigns.
9.6 Further Assurances. The parties hereto shall, with reasonable
diligence, do all such things and provide all such reasonable assurances as may
be required to consummate the transactions contemplated hereby, and each party
shall provide such further documents or instruments required by any other party
as may be reasonably necessary or desirable to effect the purpose of this
Agreement and carry out its provisions, whether before or after the Closing.
9.7 Counterparts. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
9.8 Severability. In case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal or unenforceable,
such holding shall not affect any other provision of this Agreement, but this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision or provisions had never been contained herein.
9.9 Governing Law. This Agreement is executed in, and shall be
construed in accordance with the laws of the State of Michigan.
9.10 Entire Agreement. This Agreement and any amendments and
attachments hereto supersedes any other agreement, whether oral or written,
between the parties hereto relating to the matters contemplated hereby, and
constitutes the entire agreement between the parties hereto.
IN WITNESS WHEREOF, this Agreement has been executed as of ________ 10,
1999.
WITNESSED BY: SELLER:
________________________ ISG RESOURCES, INC.
________________________ By:_____________________________
Its:_____________________________
WITNESSED BY: PURCHASER:
________________________ WEBE ENTERPRISES, LTD.
________________________ By:_____________________________
Xxxxxxx Xxxxxxxx, President
SCHEDULES TO STOCK PURCHASE AGREEMENT
(Pneumatic Trucking, Inc.)
A. ISG Resources North Central Vehicle Listing as of February 28, 1999.
B. Opinion of Seller's Counsel.
C. Certified copy of Amended Articles of Incorporation as of October 19, 1999
and Bylaws of Pneumatic Tucking, Inc.
D. Pneumatic Financial Statements as of December 31, 1998.
E. Pneumatic Interim Financial Statements as of October 31, 1999.
F. Unreported and Contingent Liabilities.
G. Litigation Pending or Threatened.
H. Pneumatic Intellectual Property.
I. Pneumatic's Insurance Policies.
J. Central States Estimate of Withdrawal Liability.
K. Filed or Threatened Workers' Compensation Claims.
L. Pneumatic Owned Real Estate.
M. Pneumatic Leased Real Estate, Pneumatic Collective Bargaining Agreements
and Benefit Funds.
N. Participation Agreements.
O. ISG Hauling Agreement.
P. Sublease of Michigan Terminal Facility.
Q. Sublease of Lansing Terminal Facility.
R. Sublease of Erie Terminal Facility.
S. Release of Seller of Claims or obligations arising from Collective
Bargaining Agreements.
T. Assumption by Purchaser of obligations arising from Collective Bargaining
Agreements.
