AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
AMENDMENT NO. 1, dated as of February 10 , 2003 (this
"Amendment"), to the Asset Purchase Agreement, dated as of January 9, 2003 (the
"Agreement"), by and among Natural Soda AALA, Inc., a Colorado corporation,
("Buyer") and AmerAlia, Inc., a Utah corporation, ("AmerAlia"), on the one hand,
and White River Nahcolite Minerals Ltd. Liability Co., a Colorado limited
liability company, ("Seller") and IMC Global Inc., a Delaware corporation and
the indirect beneficial owner of all of the outstanding equity interests in
Seller, ("Parent," and, together with Buyer, AmerAlia and Seller, the
"Parties"), on the other hand. Capitalized terms not otherwise defined herein
have the respective meanings set forth in the Agreement.
WITNESSETH:
WHEREAS, the Parties desire to amend the Agreement pursuant to Section
10.2 thereof to extend the Termination Date set forth in Sections 8.1(b), from
February 4, 2003 to February 20, 2003, and to amend certain other provisions of
the Agreement, all as set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the Parties hereby agree as follows:
1. Amendment to Section 2.5 (c) (i) of the Agreement. Section 2.5(c)(i) of the
Agreement is hereby amended as follows:
(i) by deleting the phrase "in (A) and (B) below:" and replacing it
with "in (A), (B) and (C) below:" in Section 2.5(c)(i);
(ii) by adding the following after the end of the first sentence of
Section 2.5(c)(i)(B):
"Notwithstanding the foregoing, the calculation in subsection
(2), above, shall exclude any tons of product under any
Bioproducts Sales Commitment meeting the price criteria in
subsection (1), above, which either (a) leave Seller's White
River plant or its warehouse in Rifle, Colorado for delivery
to the applicable customer of Bioproducts between February 4,
2003 and March 30, 2003, or (b) are part of the order for
6,000 tons that AmerAlia has procured."
(iii) by adding Section 2.5(c)(i)(C) as follows:
"(C) Interest calculated on the Purchase Price at 6% per
annum, from the period of February 4, 2003 to the Closing
Date, based on a year of 365 days and actual days elapsed."
2. Amendment to Section 2.7 of the Agreement. Section 2.7 of the Agreement is
modified to change the reference "January 29, 2003" to "February 20, 2003" In
addition, the language "unless the conditions to Closing set forth in Article
VI... the parties hereto may mutually agree" in the fourth through tenth lines
of that section are hereby deleted, and "subject to (i) the satisfaction or
waiver of the conditions set forth in Article VI and (ii) the extension
described in Section 8.1(b)" is inserted in lieu thereof.
3. Breakup Fee. Article II of the Agreement is hereby amended by adding a new
Section 2.12 as follows:
"Section 2.12 Breakup Fee. In the event that the Closing shall
not have occurred on or before the Termination Date, other
than due solely to the failure of the conditions set forth in
Section 6.2 to be satisfied, then AmerAlia shall pay to Seller
on or before the date thirty (30) days immediately following
the Termination Date by wire transfer of immediately available
funds to a bank account designated by Seller the sum of five
hundred thousand dollars ($500,000.00) to compensate Parent
and Seller for the legal costs and expenses, and other
expenses incurred by Seller and Parent in negotiating with
Buyer and AmerAlia."
4. Amendment to Section 5.2(a) of the Agreement. Section 5.2(a) of the Agreement
is hereby amended by inserting, following the phrase "conduct its business only
in the Ordinary Course of Business," the following: "provided that nothing in
this Agreement shall require the consummation of any Bioproducts Sales
Commitments or any other commitments for sales under the Bioproducts Agreement
during the period between February 4, 2003 and the Closing Date."
5. Amendment to Section 8.1(b) of the Agreement. Section 8.1(b) of the Agreement
is hereby amended to change the reference of "February 4, 2003" in such Section
to "February 20, 2003 (subject to an extension to no later than 5:00 p.m.,
Central Standard Time on February 24, 2003, if necessary, in the event that
Buyer can show to Parent (i) that a wire transfer has been initiated to transfer
to Holland & Hart's trust account funds in an amount equal to or greater than
the Estimated Purchase Price, and (ii) the Fed Reference Number of the wire
transfer and (iii) receipt of such funds has been delayed due to reasons beyond
Buyer's or AmerAlia's control)."
6. Amendment to Section 8.2 of the Agreement. Section 8.2 of the Agreement is
hereby amended by adding (i) "Section 2.12 (Breakup Fee)," before the words
"Section 3.19" in the third line, (ii) "(a)" before the word "except" in the
seventh line and (iii) the following language at the end: ", and (b) except as
otherwise provided in Section 2.12."
7. Miscellaneous.
(a) From and after the date hereof, all references in the
Agreement to "this Agreement" shall be deemed to mean the
Agreement as amended by this Amendment.
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(b) This Amendment shall be governed by and construed in
accordance with the law of the State of Illinois without
regard to the principles of conflicts of laws thereof. All
actions and proceedings arising out of or relating to this
Amendment shall be heard and determined in any state or
federal court sitting in the State of Illinois.
(c) This Amendment may be executed in counterparts, which together
shall constitute one and the same Amendment. The Parties to
this Amendment may execute more than one copy of this
Amendment, each of which shall constitute an original.
(d) This Amendment shall have no force or effect (i) if not fully
executed by all of the Parties and (ii) if notice of such
execution by each Party is not given to the other Parties by
facsimile copy of this Agreement executed by said Party giving
notice, said execution and delivery to be completed on or
before 5:00 p.m., Central Standard Time, on Monday, February
10, 2003. For purposes of this Amendment, time is of the
essence for said execution and notice.
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IN WITNESS WHEREOF, the Parties have executed this Amendment or caused
this Amendment to be executed as of the date first written above.
NATURAL SODA AALA, INC.
By:
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Name: Xxxxxx xxx Xxxxxx
Title: Chief Financial Officer,
Secretary and Treasurer
AMERALIA, INC.
By:
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Name: Xxxxxx xxx Xxxxxx
Title: Executive Vice President
WHITE RIVER NAHCOLITE MINERALS LTD.
LIABILITY CO.
By:
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Name: Xxxxxxx X. Xxxx
Title: Vice President and Assistant
Secretary
IMC GLOBAL INC.
By:
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Name: J. Xxxx Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
