AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT (this "Amendment") to the Asset Purchase Agreement dated
November 30, 2000 (the "Asset Purchase Agreement"), in entered into as of
February 22, 2001, by and among Union Espanola de Explosivos S.A. ("Parent"), a
Spanish S.A., Union Espanola de Explosivos-MSI International, S.A., a Spanish
S.A. ("Purchaser"), UMSI Acquisition Co., a Delaware corporation ("Purchaser's
Subsidiary"), and Mining Services International Corporation, a Utah corporation
("Seller"), based on the following:
Premises
A. The parties entered into the Asset Purchase Agreement pursuant to
which Purchaser is acquiring certain assets and liabilities of Seller.
B. Subsequent to the execution of the Asset Purchase Agreement, the
accounting treatment of the transaction has been further refined. Consequently,
the parties wish to enter into this Amendment to clarify the consequences of the
accounting.
Agreement
NOW, THEREFORE, based on the foregoing premises and in consideration of
the agreements, representations, warranties, and covenants contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intended to be legally bound hereby, the parties
hereto hereby agree as follows:
1. General Price Adjustments. Subsection 2.6(a) is amended to read in
its entirety as follows:
(a) For purposes of this Agreement, the term "Net Assets" shall
mean, as of the date immediately preceding the Closing Date, the total
assets of the Business, which total Net Assets shall equal: (i) the
gross assets of the Business (without taking into consideration any
depreciation or amortization accrued over the period from June 30,
2000, through the Closing Date, or any impairment writedown of the
assets of the Seller as a result of the purchase price agreed to by the
parties herein) minus (ii) the gross liabilities of the Business, each
as determined in accordance with United States generally accepted
accounting principals (GAAP) consistently applied throughout the
periods determined on the same basis as used to prepare the June 30,
2000, balance sheet.
2. Ratification of Asset Purchase Agreement. Except as specifically
provided in paragraph 1 this Amendment, the parties specifically
ratify, confirm, and adopt as binding and enforceable, all of the terms
and conditions of the Asset Purchase Agreement.
3. Effect on Purchase Agreement. The amendments to the Asset Purchase
Agreement contemplated by this Amendment are limited precisely as
written and shall not be deemed to be an amendment to any other terms
or conditions of the Asset Purchase Agreement. The Asset Purchase
Agreement shall continue in full force and effect as amended by this
Amendment. From and after the date hereof, all references to the Asset
Purchase Agreement shall be deemed to mean the Asset Purchase Agreement
as amended by this Amendment.
4. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED UNDER
THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ANY CONFLICTS OF
LAWS PROVISIONS THEREOF.
5. Headings. The section headings in this Amendment are intended solely
for convenience and shall be given no effect in the construction and
interpretation hereof.
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6. Counterparts. This Amendment may be executed in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the
same agreement.
IN WITNESS WHEREOF, Parent, Purchaser, Purchaser's Subsidiary and
Seller have executed this Agreement or caused this Agreement to be executed by
their respective officers thereunto duly authorized as of the date first written
above.
UNION ESPANOLA DE EXPLOSIVOS S.A.
By
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Name: Xxxx X. Xxxxxxx-Xxxxx
Title: Chairman and CEO
UNION ESPANOLA DE EXPLOSIVOS -
MSI INTERNATIONAL, S.A.
By
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Name: Xxxx X. Xxxxxxx-Xxxxx
Title: Chairman
UMSI ACQUISITION CO.
By
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Name: Xxxx X. Xxxxxxx-Xxxxx
Title: President
MINING SERVICES INTERNATIONAL, INC.
By
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Name: Xxxx X. Day
Title: President
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