TERMINATION AND RELEASE AGREEMENT
THIS TERMINATION AND RELEASE AGREEMENT (the "Agreement") is made as of the
12th day October, 2001, by and among SRM AGGREGATES, INC., an Alabama
corporation, XXXXXXX XXXXX & SAND, INC., a Tennessee corporation, BHY READY MIX,
INC., a Tennessee corporation, DEKALB STONE, INC., a Georgia corporation,
MULBERRY ROCK CORPORATION, a Georgia corporation, BAMA CRUSHED CORPORATION, an
Alabama corporation, GROVE MATERIALS CORPORATION, a Georgia corporation (each
individually a "Seller" and collectively "Sellers"), and U.S. AGGREGATES, INC.,
a Delaware corporation ("Parent"), and FLORIDA ROCK INDUSTRIES, INC., a Florida
corporation ("Buyer").
RECITALS
A. Sellers, Parent and Buyer entered into an Asset Purchase Agreement dated
as July 11, 2001 (the "Purchase Agreement"), pursuant to which Sellers agreed to
sell, and Buyer agreed to purchase, substantially all of the assets of Sellers.
X. Xxxxxxx, Parent and Buyer agree that it is in each party's best interest
to terminate the Purchase Agreement and to release each other from liability in
connection with the Purchase Agreement, all on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants of
the parties contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby irrevocably
acknowledged, the parties agree as follows:
AGREEMENTS
1. Termination of Purchase Agreement. Effective October 12, 2001 (the
"Termination Date"), the Purchase Agreement shall be and is hereby terminated
and deemed null, void and of no force and effect whatsoever, except with respect
to the obligations of the Buyer under Section 9.5(b) and (c) with respect to
confidential information of the Sellers (the "Confidentiality Obligations") and
with respect to the obligations of the Sellers and Buyer to pay expenses under
Section 9.6 of the Purchase Agreement (the "Expense Obligations"). Sellers,
Parent and Buyer shall have no further obligations or liability under the
Purchase Agreement, except that the Buyer shall continue to have the
Confidentiality Obligations and the Sellers and Buyer shall continue to have
their respective Expense Obligations. Sellers, Parent and Buyer hereby waive the
termination provisions set forth in Article VII of the Purchase Agreement and
consent to termination of the Purchase Agreement without regard to such
provisions.
2. Payments. Within ten (10) days following the termination date, Buyer
will pay SRM Aggregates, Inc. ("SRM") $6,772.32 for the costs incurred by SRM
for the termination of circuit installations and/or upgrades ordered from
BellSouth and ICI at the request of Buyer. This payment will be made via wire
transfer of immediately available funds to an account designated in writing by
SRM.
3. Return of Confidential Information. Not later than fifteen (15) days
following the Termination Date, the Buyer and its representatives will return to
Sellers all originals of and will use commercially reasonable efforts to locate
and destroy copies of all memoranda, notes, plans, records, documentation and
other materials obtained from Sellers in connection with the transactions
contemplated by the Purchase Agreement which Buyer may possess or have under its
control. The foregoing obligation is not intended to limit and shall not limit
Buyer's Confidentiality Obligations.
4. Release of Sellers and Parent. Buyer hereby releases and forever
discharges each of the Sellers and Parent of and from any and all claims,
demands, causes of actions, obligations, damages, and liabilities of any nature
whatsoever, whether in contract, tort, or otherwise and whether or not now
known, suspected, or claimed, which Buyer ever had, now has, or claimed to have
against any of the Sellers or Parent arising out of or in any way relating to
the Purchase Agreement or the transactions contemplated thereby, including
without limitation any breach thereof or any failure to perform thereunder;
provided, however, that the Buyer does not release the Sellers with respect to
any breaches by the Sellers of their Expense Obligations occurring after the
Termination Date. Buyer hereby covenants and agrees never to commence, aid in
any way, prosecute, or cause or permit to be commenced or prosecuted any future
action or other proceeding based on any such claims, demands, causes of action,
damages, or liabilities.
5. Release of Buyer. Each of the Sellers and Parent hereby releases and
forever discharges Buyer of and from any and all claims, demands, causes of
actions, obligations, damages, and liabilities of any nature whatsoever, whether
in contract, tort, or otherwise and whether or not now known, suspected, or
claimed, which any of the Sellers of Parent ever had, now has, or claimed to
have against Buyer arising out of or in any way relating to the Purchase
Agreement or the transactions contemplated thereby, including without limitation
any breach thereof or any failure to perform thereunder; provided, however, that
the Sellers and the Parent do not release the Buyer with respect to any breaches
by the Buyer of the Confidentiality Obligations or the Expense Obligations
occurring after the Termination Date. Each of the Sellers and Parent hereby
covenants and agrees never to commence, aid in any way, prosecute, or cause or
permit to be commenced or prosecuted any future action or other proceeding based
on any such claims, demands, causes of action, damages, or liabilities.
6. Representations. Sellers represent and warrant that since the effective
date of the Purchase Agreement, Sellers have not negotiated with any third
parties for the sale of the assets which are the subject of the Purchase
Agreement, Sellers are not presently negotiating with any third parties for the
sale of the assets which are the subject of the Purchase Agreement, and Sellers
have no present intent to sell to any third parties the assets which are the
subject of the Purchase Agreement.
7. Entire Agreement; Amendments. This Agreement shall supersede the
Purchase Agreement in its entirety (other than with respect to the
Confidentiality Obligations and the Expense Obligations) and contains the entire
understanding of the parties with respect to the termination of the Purchase
Agreement and any rights and duties arising under or from it. There are no
restrictions, agreements, promises, warranties, covenants or undertakings,
written or oral, between the parties with respect to the subject matter herein
other than those expressly set forth herein. This Agreement may not be altered,
modified, or amended except by written instrument signed by the parties hereto.
8. Severability. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not be affected thereby.
9. Successors; Binding Agreement. This Agreement shall inure to the benefit
of and be binding upon the personal or legal representatives, executors,
administrators, successors, including successors to all or substantially all of
the stock, business and/or assets of the parties.
10. Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall be an original, but all of which taken together will
constitute one and the same instrument.
11. Parties in Interest. Nothing in this Agreement, express or implied, is
intended to confer on any person or entity other than the parties to this
Agreement and their respective successors and assigns any rights or remedies
under or by virtue of this Agreement.
12. Governing Law. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by,
and construed in accordance with, the laws of the State of Florida, without
giving effect to any choice of law or conflict of law rules or provisions
(whether of the State of Florida or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Florida.
13. Arbitration Procedures.
(a) The parties hereto agree that the arbitration procedure set forth
below shall be the sole and exclusive method for resolving and remedying claims
for money damages arising out of this Agreement and the provisions of the
Purchase Agreement that survive the Termination Date as set forth in Section 1
above (the "Disputes"). Nothing in this Section 12 shall prohibit a party hereto
from instituting litigation to enforce any Final Determination (as defined in
subsection (e) below) or availing itself of the other remedies set forth in
Section 9.5(c) of the Purchase Agreement. The parties hereto hereby agree and
acknowledge that, except as otherwise provided in this Section 12 or in the
Commercial Arbitration Rules of the American Arbitration Association, as in
effect from time to time, the arbitration procedures and any Final Determination
hereunder shall be governed by, and shall be enforced pursuant to the Uniform
Arbitration Act of the State of Florida.
(b) In the event that any party hereto asserts that there exists a
Dispute, such party shall deliver a written notice to each other party involved
therein specifying the nature of the asserted Dispute and requesting a meeting
to attempt to resolve the same. If no such resolution is reached within ten (10)
business days after such delivery of such notice, the party delivering such
notice of Dispute (the "Disputing Person") may, within forty-five (45) business
days after delivery of such notice, commence arbitration hereunder by delivering
to each other party involved therein a notice of arbitration (a "Notice of
Arbitration"). Such Notice of Arbitration shall specify the matters as to which
arbitration is sought, the nature of any Dispute, the claims of each party to
the arbitration and shall specify the amount and nature of any damages, if any,
sought to be recovered as a result of any alleged claim, and any other matters
required by the Commercial Arbitration Rules of the American Arbitration
Association, as in effect from time to time, to be included therein, if any.
(c) Buyer and Sellers shall each select one independent arbitrator
expert in the subject matter of the Dispute (the arbitrators so selected shall
be referred to herein as "Buyer's Arbitrator" and "Sellers' Arbitrator,"
respectively). In the event that either party fails to select an independent
arbitrator as set forth herein within twenty (20) days from delivery of a Notice
of Arbitration, then the matter shall be resolved by the arbitrator selected by
the other party. Sellers' Arbitrator and Buyer's Arbitrator shall select a third
independent arbitrator expert in the subject matter of the dispute, and the
three arbitrators so selected shall resolve the matter according to the
procedures set forth in this Section 12. If Sellers' Arbitrator and Buyer's
Arbitrator are unable to agree on a third arbitrator within twenty (20) days
after their selection, Sellers' Arbitrator and Buyer's Arbitrator shall each
prepare a list of three independent arbitrators. Sellers' Arbitrator and Buyer's
Arbitrator shall each have the opportunity to designate as objectionable and
eliminate one arbitrator from the other arbitrator's list within seven days
after submission thereof, and the third arbitrator shall then be selected by lot
from the arbitrators remaining on the lists submitted by Sellers' Arbitrator and
Buyer's Arbitrator.
(d) The arbitrator(s) selected pursuant to subsection (c) above will
determine the allocation of the costs and expenses of arbitration based upon the
percentage which the portion of the contested amount not awarded to each party
bears to the amount actually contested by such party. For example, if Buyer
submits a claim for $1,000, and if Sellers contest only $500 of the amount
claimed by Buyer, and if the arbitrator(s) ultimately resolves the dispute by
awarding Buyer $300 of the $500 contested, then the costs and expenses of
arbitration will be allocated 60% (i.e. 300 / 500) to Sellers and 40% (i.e. 200
/ 500) to Buyer.
(e) The arbitration shall be conducted under the Commercial
Arbitration Rules of the American Arbitration Association as in effect from time
to time, except as modified by the agreement of all parties. The arbitrator(s)
shall so conduct the arbitration that a final result, determination, finding,
judgment and/or award (the "Final Determination") is made or rendered as soon as
practicable, but in no event later than the later of ninety (90) business days
after the delivery of the Notice of Arbitration and ten (10) days following
completion of the arbitration. The Final Determination must be agreed upon and
signed by the sole arbitrator or by at least two of the three arbitrators (as
the case may be). The Final Determination shall be final and binding on all
parties and there shall be no appeal from or reexamination of the Final
Determination, except for fraud, perjury, evident partiality or misconduct by an
arbitrator prejudicing the rights of any party and except to correct manifest
clerical errors.
(f) Buyer and Sellers may enforce any Final Determination in any state
or federal court having jurisdiction over the Dispute. For the purpose of any
action or proceeding instituted with respect to any Final Determination, each
party hereto hereby irrevocably submits to the jurisdiction of such courts,
irrevocably consents to the service of process by registered mail or personal
service and hereby irrevocably waives, to the fullest extent permitted by law,
any objection which it may have or hereafter have as to personal jurisdiction,
the laying of the venue of any such action or proceeding brought in any such
court and any claim that any such action or proceeding brought in such court has
been brought in any inconvenient forum.
(e) If any party shall fail to pay the amount of any damages, if any,
assessed against it within ten (10) days of the delivery to such party of such
Final Determination, the unpaid amount shall bear interest from the date of such
delivery at the lesser of(i) the prime rate, as declared by Citibank, N.A. from
time to time (which rate shall be adjusted on the effective date of each change
in such rate) (the "Prime Rate") plus 300 basis points and (ii) the maximum rate
permitted by applicable usury laws. Interest on any such unpaid amount shall be
compounded semiannually, computed on the basis of a 365-day year and shall be
payable on demand. In addition, such party shall promptly reimburse the other
party for all reasonable costs or expenses of any nature or kind whatsoever
(including but not limited to reasonable attorneys' fees) incurred in seeking to
collect such damages or to enforce any Final Determination.
[Signatures appear on the following pages.]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SELLERS:
SRM AGGREGATES, INC.
By:_________________________________
Its:_________________________________
XXXXXXX XXXXX & SAND, INC.
By:_________________________________
Its:_________________________________
BHY READY MIX, INC.
By:_________________________________
Its:_________________________________
DEKALB STONE, INC.
By:_________________________________
Its:_________________________________
MULBERRY ROCK CORPORATION
By:_________________________________
Its:_________________________________
BAMA CRUSHED CORPORATION
By:_________________________________
Its:_________________________________
GROVE MATERIALS CORPORATION
By:_________________________________
Its:_________________________________
PARENT:
U.S. AGGREGATES, INC.
By:_________________________________
Its:_________________________________
BUYER:
FLORIDA ROCK INDUSTRIES, INC.
By:_________________________________
Its:_________________________________
