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 deprecation 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 principles (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.
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___________________________________
Name: Xxxx X. Xxxxxxx-Xxxxx
Title: Chairman and CEO
UNION ESPANOLA DE EXPLOSIVOS -
MSI INTERNATIONAL, S.A.
By___________________________________
Name: Xxxx X. Xxxxxxx-Xxxxx
Title: Chairman
UMSI ACQUISITION CO.
By___________________________________
Name: Xxxx X. Xxxxxxx-Xxxxx
Title: President
MINING SERVICES INTERNATIONAL, INC.
By___________________________________
Name: Xxxx X. Day
Title: President
