SENIOR MANAGEMENT AGREEMENT
THIS AGREEMENT is made as of November 20, 1996 between U.S.
Aggregates, Inc., a Delaware corporation (the "Company"), and ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ("Executive").
Executive and the Company have entered into an Employment
Agreement dated as of August 5, 1994 (the "Employment Agreement").
The Company and Executive desire to enter into an agreement
pursuant to which Executive shall purchase 995 shares of the Company's
common stock, par value $.01 per share (the "Common Stock"). All shares of
Common Stock received hereunder by Executive and all shares of Common Stock
hereafter acquired by Executive are referred to herein as "Executive
Stock." Certain definitions are set forth in Section 5 of this Agreement.
The parties hereto agree as follows:
1. PURCHASE AND SALE OF EXECUTIVE STOCK.
(a) Upon execution of this Agreement (the "Closing"), the
Company will sell to Executive and Executive will purchase 995 shares of
Common Stock at a price of$10 per share. The Company will deliver to
Executive the certificate representing such Common Stock, and Executive
will deliver to the Company a check or wire transfer of funds in an amount
of $9.95 and a promissory note in the form of EXHIBIT A attached hereto in
an aggregate principal amount of $9,940.05 (the "Executive Note").
Executive's obligations under the Executive Note will be secured by a
pledge of all of the shares of Executive Stock to the Company and in
connection therewith Executive shall enter into a pledge agreement in the
form of EXHIBIT B attached hereto.
(b) In connection with the purchase and sale of the Executive
Stock hereunder, Executive represents and warrants to the Company that:
(i) The Executive Stock to be acquired by Executive pursuant to this
Agreement will be acquired for Executive's own account and not with a view
to, or intention of, distribution thereof in violation of the Securities
Act, or any applicable state securities laws, and the Executive Stock will
not be disposed of in contravention of the Securities Act or any applicable
state securities laws;
(ii) Executive is an executive officer of the Company, is
sophisticated in financial matters and is able to evaluate the risks and
benefits of the investment in the Executive Stock;
(iii) Executive is able to bear the economic risk of his investment in
the Executive Stock for an indefinite period of time because the Executive
Stock has not been registered under the Securities Act and, therefore,
cannot be sold unless subsequently registered under the Securities Act or
an exemption from such registration is available;
(iv) Executive has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the offering of Executive
Stock and has had full access to such other information concerning the
Company as he has requested; and
(v) This Agreement constitutes the legal, valid and binding
obligation of Executive, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by Executive does not
and will not conflict with, violate or cause a breach of any agreement,
contract or instrument to which Executive is a party or any judgment, order
or decree to which Executive is subject.
(c) As an inducement to the Company to issue the Executive Stock to
Executive, as a condition thereto, Executive acknowledges and agrees that:
(i) neither the issuance of the Executive Stock to Executive nor any
provision contained herein shall affect any of the rights of the Company
set forth in the Employment Agreement; and
(ii) the Company shall have no duty or obligation to disclose to
Executive, and Executive shall have no right to be advised of, any material
information regarding the Company and its Subsidiaries at any time prior
to, upon or in connection with the repurchase of Executive Stock upon the
termination of Executive's employment with the Company and its Subsidiaries
or as otherwise provided hereunder.
2. REPURCHASE OPTION.
(a) In the event Executive ceases to be employed by the Company and
its Subsidiaries for any reason (the "Termination"), the Executive Stock
(whether held by Executive or one or more of Executive's transferees) will be
subject to repurchase by the Company and the Investor pursuant to the terms and
conditions set forth in this Section 2 (the "Repurchase Option"). The purchase
price for each share of Executive Stock will be the higher of the Executive's
Original Cost and the Fair Market Value for such share.
(b) The Board of Directors of the Company (the "Board") may elect to
purchase all, but not less than all, of the Executive Stock by delivering
written notice (the "Repurchase Notice") to the holder or holders of such
Executive Stock within one year after the
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Termination (it being understood that an election to purchase Executive
Stock hereunder shall not be an election to purchase the stock acquired
pursuant to the senior management agreements with other executives of the
Company). The Repurchase Notice will set forth the number of shares to be
acquired from each holder, the aggregate consideration to be paid for such
shares and the time and place for the closing of the transaction.
(c) If for any reason the Company does not elect to purchase all
of the Executive Stock pursuant to the Repurchase Option, the Investor
shall be entitled to exercise the Repurchase Option for the shares of
Executive Stock the Company has not elected to purchase (the "Available
Shares"). As soon as practicable after the Company has determined that
there will be Available Shares, but in any event within ten months after
the Termination, the Company shall give written notice (the "Option
Notice") to the Investor setting forth the number of Available Shares and
the purchase price for the Available Shares. The Investor may elect to
purchase any or all of the Available Shares by giving written notice to the
Company within one month after the Option Notice has been given by the
Company. As soon as practicable, and in any event within ten days after
the expiration of the one-month period set forth above, the Company shall
notify each holder of Executive Stock as to the number of shares being
purchased from such holder by the Investor (the "Supplemental Repurchase
Notice"). At the time the Company delivers the Supplemental Repurchase
Notice to the holder(s) of Executive Stock, the Company shall also deliver
written notice to the Investor setting forth the number of shares the
Investor is entitled to purchase, the aggregate purchase price and the time
and place of the closing of the transaction.
(d) In the event that (i) the Executive's employment is
terminated by the Company without Cause (as defined in the Employment
Agreement), (ii) neither the Company nor the Investor has elected to
purchase all of the Executive Stock hereunder and (iii) at the time of such
Termination, the Company is meeting all budget projections set forth by the
Board for that fiscal year, the Executive may require the Company to
purchase all but not less than all, of the Executive Stock by delivering
written notice (the "Put Notice") to the Company within one year after such
Termination. The Put Notice will set forth the number of shares to be
acquired from each holder and the time and place for the closing of the
transaction.
(e) The closing of the purchase of the Executive Stock pursuant
to the Repurchase Option or the Put Notice shall take place on the date
designated by the Company in the case of either the Repurchase Notice or
the Supplemental Repurchase Notice or by the Executive in the case of the
Put Notice, which date shall not be more than one month nor less than five
days after the delivery of the later of any such notice to be delivered.
The Company and/or the Investor will pay for the Executive Stock to be
purchased pursuant to the Repurchase Option by delivery of a check
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or wire transfer of funds in the aggregate amount of the purchase price for
such shares; provided, however, that the Company may elect to pay for the
Executive Stock to be purchased pursuant to the Put Notice by delivery of a
promissory note from the Company having a term no longer than five years,
payable in sixty equal installments, a market rate of interest and other
typical market terms. In addition, the Company may pay the purchase price
for such shares by offsetting amounts outstanding under any bona fide debts
owed by Executive to the Company including, without limitation, debts owed
under the Executive Note. The Company and the Investor will be entitled to
receive customary representations and warranties from the sellers regarding
such sale and to require all sellers' signatures be guaranteed.
(f) The right of the Company and the Investor to repurchase
Executive Stock pursuant to this Section 2 and the obligation of the
Company to repurchase the Executive Stock pursuant to paragraph (e) above
shall terminate upon the first to occur of the Sale of the Company or a
Qualified Public Offering.
(g) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Executive Stock by the Company shall be
subject to applicable restrictions contained in the Delaware General
Corporation Law and in the Company's and its Subsidiaries' debt and equity
financing agreements. If any such restrictions prohibit the repurchase of
Executive Stock hereunder which the Company is otherwise entitled or
required to make, the Company may make such repurchases as soon as it is
permitted to do so under such restrictions.
3. TERMINATION OF EXECUTIVE'S OPTION. The parties hereto agree
that all rights and obligations under Section 1(b) of that certain Senior
Management Agreement dated as of August 5, 1994 between the Company and the
Executive are hereby terminated and that such Section 1(b) shall be of no
further force and effect.
4. RESTRICTIONS ON TRANSFER.
(a) LEGEND. The certificates representing the Executive Stock
will bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
AS OF NOVEMBER 20, 1996 HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE OPTIONS AND
CERTAIN OTHER AGREEMENTS SET FORTH IN A SENIOR MANAGEMENT AGREEMENT
BETWEEN U.S. AGGREGATES, INC. (THE "COMPANY") AND ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
DATED AS OF NOVEMBER 20, 1996 AND THE STOCKHOLDERS AGREEMENT DATED AS
OF JANUARY 24, 1994 AMONG THE COMPANY AND CERTAIN OF ITS
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STOCKHOLDERS. A COPY OF SUCH AGREEMENTS MAY BE OBTAINED BY THE HOLDER
HEREOF AT THE COMPANY'S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
(b) OPINION OF COUNSEL. No holder of Executive Stock may sell,
transfer or dispose of any Executive Stock (except pursuant to an effective
registration statement under the Securities Act) without first delivering
to the Company an opinion of counsel (reasonably acceptable in form and
substance to the Company) that neither registration nor qualification under
the Securities Act and applicable state securities laws is required in
connection with such transfer.
5. DEFINITIONS.
"EXECUTIVE STOCK" will continue to be Executive Stock in the
hands of any holder other than Executive (except for the Company and the
Investor and except for transferees in a Public Sale), and except as
otherwise provided herein, each such other holder of Executive Stock will
succeed to all rights and obligations attributable to Executive as a holder
of Executive Stock hereunder. Executive Stock will also include shares of
the Company's capital stock issued with respect to Executive Stock by way
of a stock split, stock dividend or other recapitalization.
"FAIR MARKET VALUE" of each share of Executive Stock means the
average of the closing prices of the sales of the Company's Common Stock on
all securities exchanges on which the Common Stock may at the time be
listed, or, if there have been no sales on any such exchange on any day,
the average of the highest bid and lowest asked prices on all such
exchanges at the end of such day, or, if on any day the Common Stock is not
so listed, the average of the representative bid and asked prices quoted in
the NASDAQ System as of 4:00 P.M., New York time, or, if on any day the
Common Stock is not quoted in the NASDAQ System, the average of the highest
bid and lowest asked prices on such day in the domestic over-the-counter
market as reported by the National Quotation Bureau Incorporated, or any
similar successor organization, in each such case averaged over a period of
21 days consisting of the day as of which the Fair Market Value is being
determined and the 20 consecutive business days prior to such day. If at
any time the Common Stock is not listed on any securities exchange or
quoted in the NASDAQ System or the over-the-counter market, the Fair Market
Value will be the fair value of the Common Stock determined in good faith
by the Board.
"INVESTOR" means Golder, Thoma, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Fund IV Limited
Partnership.
"ORIGINAL COST" of each share of Common Stock issued hereunder
will be equal to $10 each as proportionately adjusted for all subsequent
stock splits, stock dividends and other recapitalizations).
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"PUBLIC SALE" means any sale pursuant to a registered public
offering under the Securities Act or any sale to the public pursuant to
Rule 144 promulgated under the Securities Act effected through a broker,
dealer or market maker.
"QUALIFIED PUBLIC OFFERING" means the sale in an underwritten
public offering registered under the Securities Act of shares of the
Company's Common Stock having an aggregate offering value of at least
$30 million.
"SALE OF THE COMPANY" means any transaction or series of related
transaction pursuant to which any person or entity acquires (i) capital
stock of the Company possessing the voting power to elect a majority of the
Company's board of directors (whether by merger, consolidation,
reorganization, combination, sale or transfer of the Company's capital
stock or otherwise) or (ii) all or substantially all of the Company's
assets determined on a consolidated basis.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time.
6. NOTICES. Any notice provided for in this Agreement must be
in writing and must be either personally delivered, mailed by first class
mail (postage prepaid and return receipt requested) or sent by reputable
overnight courier service (charges prepaid) to the recipient at the address
below indicated:
IF TO THE COMPANY:
U.S. Aggregates, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
WITH A COPY TO:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
IF TO THE EXECUTIVE:
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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IF TO THE INVESTOR:
Golder, Thoma, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Fund IV
Limited Partnership
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
or such other address or to the attention of such other person as the
recipient party shall have specified by prior written notice to the sending
party. Any notice under this Agreement will be deemed to have been given
when so delivered or sent or, if mailed, five days after deposit in the
U.S. mail.
7. GENERAL PROVISIONS.
(a) TRANSFERS IN VIOLATION OF AGREEMENT. Any Transfer or
attempted Transfer of any Executive Stock in violation of any provision of
this Agreement shall be void, and the Company shall not record such
Transfer on its books or treat any purported transferee of such Executive
Stock as the owner of such stock for any purpose.
(b) SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other
jurisdiction, but this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.
(c) COMPLETE AGREEMENT. This Agreement, those documents
expressly referred to herein and other documents of even date herewith
embody the complete agreement and understanding among the parties and
supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.
(d) COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original
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and all of which taken together constitute one and the same agreement.
(e) SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be
enforceable by Executive, the Company, the Investor and their respective
successors and assigns (including subsequent holders of Executive Stock);
provided that the rights and obligations of Executive under this Agreement
shall not be assignable except in connection with a permitted transfer of
Executive Stock hereunder.
(f) CHOICE OF LAW. The corporate law of the State of Illinois
will govern all questions concerning the relative rights of the Company and
its stockholders. All other questions concerning the construction,
validity and interpretation of this Agreement and the exhibits hereto will
be governed by and construed in accordance with the internal laws of the
State of Illinois, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of Illinois or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois.
(g) REMEDIES. Each of the parties to this Agreement (including
the Investor) will be entitled to enforce its rights under this Agreement
specifically, to recover damages and costs (including attorneys' fees)
caused by any breach of any provision of this Agreement and to exercise all
other rights existing in its favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach
of the provisions of this Agreement and that any party may in its sole
discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or deposit) for specific performance and/or other
injunctive relief in order to enforce or prevent any violations of the
provisions of this Agreement.
(h) AMENDMENT AND WAIVER. The provisions of this Agreement may
be amended and waived only with the prior written consent of the Company,
Executive and the Investor.
(i) BUSINESS DAYS. If any time period for giving notice or
taking action hereunder expires on a day which is a Saturday, Sunday or
holiday in the state in which the Company's chief executive office is
located, the time period shall be automatically extended to the business
day immediately following such Saturday, Sunday or holiday.
(j) TERMINATION. This Agreement shall survive the termination
of Executive's employment with the Company and shall remain in full force
and effect after such termination.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
U.S. AGGREGATES, INC.
By _________________________________
Its ________________________________
____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Agreed and Accepted:
GOLDER, THOMA, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ FUND IV
LIMITED PARTNERSHIP
By ______________________________
Its _____________________________
[PROVISION FOR COMMUNITY PROPERTY JURISDICTIONS]
CONSENT
The undersigned spouse of Executive hereby acknowledges that I
have read the foregoing Senior Management Agreement and that I understand
its contents. I am aware that the Agreement provides for the repurchase of
my spouse's shares of Common Stock under certain circumstances and imposes
other restrictions on the transfer of such Common Stock. I agree that my
spouse's interest in the Common Stock is subject to this Agreement and any
interest I may have in such Common Stock shall be irrevocably bound by this
Agreement and further that my community property interest, if any, shall be
similarly bound by this Agreement.
______________________________
[SPOUSE]
______________________________
Witness
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PROMISSORY NOTE
$9,940.05 November 20, 1996
For value received, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ("Executive") promises to
pay on November 20, 2001 to the order of U.S. Aggregates, Inc., a Delaware
corporation (the "Company"), at its offices in San Mateo, California, or
such other place as designated in writing by the holder hereof, the
aggregate principal sum of $9,940.05. This Note was issued pursuant to and
is subject to the terms of the Senior Management Agreement (the
"Agreement"), dated as of November 20, 1996 between the Company and
Executive.
Interest will accrue on the outstanding principal amount of this
Note at a rate equal to the lesser of (i) 8% per annum or (ii) the highest
rate permitted by applicable law, and shall be payable at such time as the
principal of this Note becomes due and payable; provided, however, interest
shall cease to accrue upon the date on which a Repurchase Notice is
delivered to Executive pursuant to Section 2(c) of the Agreement.
The amounts due under this Note are secured by a pledge of 995
shares of the Company's Common Stock. The payment of the principal amount
of this Note is subject to certain offset rights under the Agreement.
In the event Executive fails to pay any amounts due hereunder
when due, Executive shall pay to the holder hereof, in addition to such
amounts due, all costs of collection, including reasonable attorneys fees.
Executive, or his successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and nonpayment of this Note, and expressly agrees that this Note,
or any payment hereunder, may be extended from time to time and that the
holder hereof may accept security for this Note or release security for
this Note, all without in any way affecting the liability of Executive
hereunder.
This Note shall be governed by the internal laws, not the laws of
conflicts, of the State of Illinois.
____________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
EXECUTIVE STOCK PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT is made as of November 20, 1996, between
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ("Pledgor"), and U.S. Aggregates, Inc., a Delaware
corporation (the "Company").
The Company and Pledgor are parties to an Senior Management
Agreement, dated November 20, 1996, pursuant to which Pledgor purchased 995
shares of the Company's Common Stock, $.01 par value (the "Pledged
Shares"), for an aggregate purchase price of $9,950. The Company has
allowed Pledgor to purchase the Pledged Shares by delivery to the Company
of a promissory note (the "Note") in the aggregate principal amount of
$9,940.05. This Pledge Agreement provides the terms and conditions upon
which the Note is secured by a pledge to the Company of the Pledged Shares.
NOW, THEREFORE, in consideration of the premises contained herein
and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, and in order to induce the Company to accept
the Note as payment for the Pledged Shares, Pledgor and the Company hereby
agree as follows:
1. PLEDGE. Pledgor hereby pledges to the Company, and grants
to the Company a security interest in, the Pledged Shares as security for
the prompt and complete payment when due of the unpaid principal of and
interest on the Note.
2. DELIVERY OF PLEDGED SHARES. Upon the execution of this
Pledge Agreement, Pledgor shall deliver to the Company the certificate(s)
representing the Pledged Shares, together with duly executed forms of
assignment sufficient to transfer title thereto to the Company.
3. VOTING RIGHTS; CASH DIVIDENDS. Notwithstanding anything to
the contrary contained herein, during the term of this Pledge Agreement
until such time as there exists a default in the payment of principal or
interest on the Note or any other default under the Note, Pledgor shall be
entitled to all voting rights with respect to the Pledged Shares and shall
be entitled to receive all cash dividends paid in respect of the Pledged
Shares. Upon the occurrence of and during the continuance of any such
default, the Company shall retain all such cash dividends payable on the
Pledged Shares as additional security hereunder.
4. STOCK DIVIDENDS; DISTRIBUTIONS, ETC. If, while this Pledge
Agreement is in effect, Pledgor becomes entitled to receive or receives any
securities or other property in addition to, in substitution of, or in
exchange for any of the Pledged Shares (whether as a distribution in
connection with any recapitalization, reorganization or reclassification, a
stock dividend or otherwise), Pledgor shall accept such securities or other
property on behalf of and for the benefit of the Company as additional
security for
Pledgor's obligations under the Note and shall promptly deliver such
additional security to the Company together with duly executed forms of
assignment, and such additional security shall be deemed to be part of the
Pledged Shares hereunder.
5. DEFAULT. If Pledgor defaults in the payment of the
principal or interest under the Note as it becomes due (whether upon
demand, acceleration or otherwise) or any other event of default under the
Note occurs (including the bankruptcy or insolvency of Pledgor), the
Company may exercise any and all the rights, powers and remedies of any
owner of the Pledged Shares (including the right to vote the shares and
receive dividends and distributions with respect to such shares) and shall
have and may exercise without demand any and all the rights and remedies
granted to a secured party upon default under the Uniform Commercial Code
of Delaware or otherwise available to the Company under applicable law.
Without limiting the foregoing, the Company is authorized to sell, assign
and deliver at its discretion, from time to time, all or any part of the
Pledged Shares at any private sale or public auction, on not less than ten
days written notice to Pledgor, at such price or prices and upon such terms
as the Company may deem advisable. Pledgor shall have no right to redeem
the Pledged Shares after any such sale or assignment. At any such sale or
auction, the Company may bid for, and become the purchaser of, the whole or
any part of the Pledged Shares offered for sale. In case of any such sale,
after deducting the costs, attorneys' fees and other expenses of sale and
delivery, the remaining proceeds of such sale shall be applied to the
principal of and accrued interest on the Note; provided, however, that
after payment in full of the indebtedness evidenced by the Note, the
balance of the proceeds of sale then remaining shall be paid to Pledgor and
Pledgor shall be entitled to the return of any of the Pledged Shares
remaining in the hands of the Company. Pledgor shall be liable for any
deficiency if the remaining proceeds are insufficient to pay the
indebtedness under the Note in full, including the fees of any attorneys
employed by the Company to collect such deficiency.
6. COSTS AND ATTORNEYS' FEES. All costs and expenses,
including reasonable attorneys' fees, incurred in exercising any right,
power or remedy conferred by this Pledge Agreement or in the enforcement
thereof, shall become part of the indebtedness secured hereunder and shall
be paid by Pledgor or repaid from the proceeds of the sale of the Pledged
Shares hereunder.
7. PAYMENT OF INDEBTEDNESS AND RELEASE OF PLEDGED SHARES. Upon
payment in full of the indebtedness evidenced by the Note, the Company
shall surrender the Pledged Shares to Pledgor together with all forms of
assignment.
8. FURTHER ASSURANCES. Pledgor agrees that at any time and
from time to time upon the written request of the Company, Pledgor will
execute and deliver such further documents and do such further acts and
things as the Company may reasonably request in order to effect the
purposes of this Pledge Agreement.
9. SEVERABILITY. Any provision of this Pledge Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
10. NO WAIVER; CUMULATIVE REMEDIES. The Company shall not by
any act, delay, omission or otherwise be deemed to have waived any of its
rights or remedies hereunder, and no waiver shall be valid unless in
writing, signed by the Company, and then only to the extent therein set
forth. A waiver by the Company of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the
Company would otherwise have on any future occasion. No failure to
exercise nor any delay in exercising on the part of the Company, any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights
and remedies herein provided are cumulative and may be exercised singly or
concurrently, and are not exclusive of any rights or remedies provided by
law.
11. WAIVERS, AMENDMENTS; APPLICABLE LAW. None of the terms or
provisions of this Pledge Agreement may be waived, altered, modified or
amended except by an instrument in writing, duly executed by the parties
hereto. This Agreement and all obligations of the Pledgor hereunder shall
together with the rights and remedies of the Company hereunder, inure to
the benefit of the Company and its successors and assigns. This Pledge
Agreement shall be governed by, and be construed and interpreted in
accordance with, the laws of the State of Illinois.
* * * * * * * * * *
IN WITNESS WHEREOF, this Pledge Agreement has been executed as of the
date first above written.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
U.S. AGGREGATES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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