NCG140320_Name-Owner Change Supporting Info_4/10/2020

ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, made, entered into and effective, this 3rd
day of March, 2020 ("Agreement"), by and between GREGORY A. TURNAGE, an individual
resident of Wilson, NC ("Tumage"), PHILIP R. PROCTOR, an individual resident of Wilson,
NC ("P. Proctor"), KELLY PROCTOR, an individual resident of Wilson, NC ("K.
Proctor")(Tumage, P. Proctor and K. Proctor, each a "Shareholder" and collectively, the
"Shareholders") PLT CONCRETE SERVICES, INC., a North Carolina corporation ("Seller"),
and EAGLE ROCK CONCRETE LLC, a North Carolina limited liability company ("Buyer");
WHEREAS, Seller owns and operates a business dealing in ready -mixed concrete
(hereinafter referred to as the `Business") and owns certain real property in connection with the
operation of such Business;
WHEREAS, pursuant to this Agreement Seller desires to sell to Buyer, and Buyer desires
to purchase from Seller, substantially all of the assets and properties of Seller relating to or used
or held for use in connection with the operation of the Business, on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Sale of Assets, Subject to the terms and conditions hereof, Seller hereby agrees to
sell, transfer and assign to Buyer and Buyer agrees to purchase and accept from Seller, free and
clear of all Liens (as hereafter defined), all right, title and interest of Seller in, to and under all
assets and properties of every nature, kind and description, tangible and intangible, whether real,
personal or mixed, whether contingent or otherwise, whether now existing or hereinafter
acquired, wheresoever located, and whether or not reflected on Seller's books, relating to or used
or held for use in connection with the Business, as the same may exist as of the Closing
(collectively, the "Purchased Assets"), including, without limitation, all right, title and interest of
Seller in, to and under the following:
(a) Fee simple, marketable title to the real estate described on Exhibit A (collectively,
the "Owned Properties") and valid, enforceable leasehold interest in the real estate described on
Exhibit B (the "Leased Properties"), together with all of Seller's right, title and 'interest in and to
all buildings, fixtures, trade fixtures, plant and other improvements located thereon and attached
thereto, all of Seller's rights arising out of the use or lease thereof, and all subleases, franchises,
licenses, easements and rights -of -way and other rights appurtenant thereto (collectively, the
`•`Purchased Properties");
(b) The concrete plants, equipment, vehicles, office equipment, computer equipment,
furniture, fixtures and all other tangible personal property relating to or used or held for use in
connection with the Business (including all books, records, files, correspondence and papers
used in the conduct of the Business, or copies thereof) as necessary to conduct the Business;
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(c) All licenses, permits and other governmental authorizations related to the
Purchased Assets or the Business (the "Permits");
(d) All useable raw materials of sand, stone, cement, fly ash, fibers, additives and
building material (the "Inventory Purchased Assets"); and
(e) All leases, contractual rights and customer contracts related, incident or necessary
to the operation of the Business, but only to the extent the same are designated by Buyer on
Exhibit C as Purchased Assets (the "Business Contracts").
Notwithstanding the foregoing or any other provision of this Agreement to the contrary,
Seiler will retain and not transfer: (i) any cash and cash equivalents on hand as of the Closing
Date; (ii) marketable securities and investments, if any; (iii) the Columbus Reserve Fund and
Columbus Stock as noted on Seller's balance sheet; (iv) all liabilities of Seller and Shareholder;
and (v) the corporate books, seal, and other entity records of Seller.
Except as expressly set forth herein, Seller shall retain, and Buyer shall not assume, any
liabilities of Seller or the Business, whether presently in existence or arising hereafter, other than
liabilities arising from and after the Closing Date under the Business Contracts, excluding,
however, any obligation or liability for breach thereof occurring prior to the Closing Date. All
such liabilities, which shall include all tax liabilities of Seller (except as otherwise contemplated
by Section 11), and any employment related liabilities and obligations that arise or accrue on or
before the Closing Date, including without limitation, for employee benefits, accrued
compensation, accrued vacation, workers' compensation, and unemployment compensation
claims, shall be retained by and remain liabilities of the applicable Seller (the "Retained
Liabilities"). It is expressly understood and agreed that Seller shall pay any accounts payable
(including any accrued charges and open accounts) according to their regular and customary
terms.
Promptly upon the execution hereof, Seller shall deliver to Buyer true, accurate and
complete copies of all leases, contractual rights, vendor contracts and customer contracts related,
incident or necessary to the operation of the Business, and Buyer shall have the right to perform
its due diligence on the same and shall have the right, prior to Closing, to designate on Exhibit C
all of the foregoing which Buyer elects to accept and assume at Closing (which, if any, shall be
designated by Buyer on Exhibit C and shall constitute the "Business Contracts"). In connection
with such designation, Buyer shall also designate which of the foregoing Buyer elects not to
assume (which, if any, shall constitute the "Rejected Contracts"). Seller shall be responsible for
terminating the Rejected Contracts and shall discharge, at its sole cost and expense, all
obligations and liabilities under and pertaining to the Rejected Contracts.
2. Purchase Price. The total price to be paid by Buyer for the Purchased Assets (the
"Purchase Price") shall be as follows:
(a) The Purchase Price for the Purchased Assets (excluding the Inventory Purchased
Assets) shall be I IL paid by Buyer at the Closing by wire transfer of immediately
available funds to an account designated by Seller prior to the Closing. The Purchase Price for
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the Purchased Assets shall be allocated to the specific assets by Seller in accordance with Exhibit
D and the parties agree to use such allocation for all purposes and to take their respective tax
reporting positions consistent with the allocations set forth on Exhibit D.
(b) The Purchase Price for the Inventory Purchased Assets shall be an amount equal
to its Inventory Value determined as follows: after the close of business on the business day
immediately preceding the Closing, Seller and Buyer (i) shall jointly conduct a physical count of
Seller's inventory (with adjustments for receipts and shipments after the time of such physical
inventory) of sand, stone, cement, fly ash, fibers, additives and building material (collectively,
"_Raw Materials Inventory') relating to or used or held for use in connection with the Business
and (ii) shall jointly prepare a written report setting forth the amounts of all Raw Materials
Inventory that are undamaged and usable by Seller in the ordinary course of business and the
aggregate extended value of all such Raw Materials inventory based on (i) the most recent
invoice price, plus, applicable freight charges (the "Inventory Value"). The Purchase Price for
the Inventory Purchased Assets shall be paid by Buyer at the Closing by wire transfer of
immediately available funds to an account designated by Seller prior to the Closing.
3. Intentionally Deleted.
4. Accounts Receivable. Not later than ten (10) days after the Closing, Seller shall
deliver to Buyer a reasonably -detailed list and description of the trade accounts receivable of
the Business as of the Closing (the "Receivables"). The Receivables shall not include any
amounts that are known to be uncollectible or which are non -binding or nonproductive, and
shall be subject to the reasonable consent of Buyer. Upon receipt and acceptance of such list,
Buyer shall fund the face amount of the Receivables into an interest -bearing escrow account
(the "Escrow Account") with Manning, Fulton & Skinner, P.A., as escrow agent. At the
Closing, Seller shall grant to Buyer all rights necessary for Buyer to collect the Receivables
during the three-month period following the Closing (the "Collection Period"). Buyer shall use
its commercially reasonable efforts to collect the Receivables during the Collection Period,
provided, however, that Buyer shall not commence any legal action to collect any Receivable.
Ten (10) days after the end of each month during the Collection Period, an amount equal to the
Receivables actually collected by Buyer during such month shall be paid to Seller out of the
funds held in the Escrow Account (together with any interest income attributable to such
portion of the Receivables). At the end of the Collection Period, any uncollected Receivables
shall be assigned to Seller (which shall have the right to attempt to collect such Receivables and
keep the monies actually collected), and the remainder of the funds held in the Escrow Account
shall be remitted to Buyer.
5. Representations and Warranties of Seller. Seller and Shareholders, jointly and
severally (but, as to such Shareholders, only in accordance with their respective pro-rata
ownership interest in Seller), represent and warrant to Buyer as follows;
(a) Seller is a corporation, duly organized, validly existing and in good standing
under the laws of the State of North Carolina, with full requisite power to carry on its businesses
as now being conducted and to own and operate the properties and assets now owned by it.
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(b) This Agreement has been duly executed by Seller and is a legally binding
obligation of Seller and enforceable against Seller in accordance with its terms. Seller has full
requisite power, authority and legal right to enter into this Agreement and to consummate the
transactions provided herein. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized by all
requisite corporate action on the part of Seller.
(c) Seller has good and marketable title to the Purchased Assets, free and clear of any
encumbrances, mortgages, pledges, liens or security interests ("Liens") other than any Liens that
will be fully satisfied and released at or prior to Closing.
(d) The Purchased Assets (i) constitute substantially all of the property and assets
used or held for use by Seller in the conduct of the Business, and (ii) upon the consummation of
the transaction contemplated by this Agreement, shall be adequate in all material respects and in
such condition so as to allow Buyer to continue to conduct the Business after Closing as it is
currently being conducted.
(e) Seller has delivered to Buyer true, correct and complete copies of all Business
Contracts, including all amendments and modifications thereto. All of the Business Contracts are
valid and in full force and effect and neither Seller, nor, to the knowledge of Seller, any other
party to such Business Contracts has breached any provision of or is in default in any respect
under the terms of any such Business Contract. There are no other contractual obligations
relating to Seller or the Business other than the Business Contracts.
(f) Seller is in compliance with all laws, rules, regulations, judgments, injunctions,
orders and decrees ("Laws" or individually, a "Law") applicable to the Business and the
Purchased Assets and Seller has not violated any Law in the conduct of the Business. Seller has
been duly granted all permits required pursuant to applicable Law for the conduct of the
Business and has delivered to Buyer true, correct and complete copies of all Permits. All of the
Permits are valid and in full force and effect and neither Seller, nor to the knowledge of Seller,
any other party to such Permits, has breached any provision of or is in default in any respect
under the terms of such Permits. There are no other permits or licenses relating to Seller or the
Business other than the Permits.
(g) Exhibit A sets forth a list of all real property owned by Seller, and Exhibit B sets
forth a list of each leasehold interest in the Leased Properties (said documentation creating such
leasehold interest being known as the "Lease"). Seller has delivered to Buyer true, correct and
complete copies of the Lease, including all amendments and modifications thereto. There are no
subleases with respect to the Leased Properties. Each Lease is valid, binding, enforceable, and in
full force and effect, and Seller enjoys peaceful and undisturbed possession of the Leased
Properties. Seller is not in breach or default under any Lease. Seller has not subleased to any
person the right to use or occupy such Leased Properties or any portion thereof. The Leased
Properties is sufficient for the continued conduct of the Business after the Closing in
substantially the same manner as conducted prior to the Closing and constitutes all of the real
property necessary to conduct the Business as currently conducted.
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(h) All of the fixtures and other improvements to the real property of Seller and all of
the tangible personal property are in good working order operating conditions and state of repair
and have been maintained in accordance with normal industry practice.
(i) Upon the Closing, there will be no liabilities, matured or unmatured, contingent or
otherwise, with respect to the Business or the Purchased Assets, other than liabilities under the
Business Contracts incurred in the ordinary course of business. It is expressly understood and
agreed that Seller shall pay any accounts payable (including any accrued charges and open
accounts) according to their regular and customary terms.
6) There is no litigation at law or in equity and no proceedings before any
commission or administrative authority pending or threatened or any order or judgment in effect
against or affecting the Purchased Assets or Receivables or the right to carry on the Business.
(k) All necessary consents, if any, for transfer of the Purchased Assets and the
consummation of the transactions as contemplated herein will have been secured at the Closing.
(1) Seller has maintained and will continue to maintain in force insurance coverage
adequate to protect the Purchased Assets through the Closing Date.
(m) Seller has paid all taxes due and payable that relate to the Purchased Assets or the
Business. Seller has paid all taxes due and payable by it and has withheld and paid to the
appropriate governmental authority all amounts required to be withheld and paid over. Seller
shall not incur any taxes from the date hereof through the Closing Date other than in the ordinary
course of business.
(n) No representation or warranty by Seller or any Shareholder in this Agreement
and no statement contained in any Exhibits or Schedules to this Agreement or any certificate or
other document furnished or to be furnished to Buyer pursuant to this Agreement contains any
untrue statement of a material fact, or omits to state a material fact necessary to make the
statements contained therein, in light of the circumstances in which they are made, not
misleading.
(o) Except as set forth on Schedule 5(o) of the Disclosure Schedules, since the date of
the balance sheet delivered to Buyer, and other than in the ordinary course of business consistent
with past practice, there has not been any: (a) event, occurrence, fact, condition or change that is,
or could reasonably be expected to become, individually or in the aggregate, materially adverse
to (i) the Business, results of operations, prospects, condition (financial or otherwise) or assets of
the Business, (ii) the value of the Purchased Assets, or (iii) the ability of Seller to consummate
the transactions contemplated hereby on a timely basis; (b) transfer, assignment, sale or other
disposition of any of the Purchased Assets shown or reflected in the Balance Sheet, except for
the sale of inventory in the ordinary course of business; (c) material damage, destruction or loss,
or any material interruption in use, of any Purchased Assets, whether or not covered by
insurance; (d) adoption of any plan of merger, consolidation, reorganization, liquidation or
dissolution or filing of a petition in bankruptcy under any provisions of federal or state
bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar
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Law; or (e) any contract to do any of the foregoing, or any action or omission that would result in
any of the foregoing.
6. Re resentations and Warranties of Bu er. Buyer hereby represents and warrants
to Seller as follows:
(a) Buyer is a limited liability company duly organized and validly existing under the
Laws of the State of North Carolina, with full requisite corporate power to carry on its business as
now being conducted and to own and operate the properties and assets now owned by it.
(b) This Agreement has been duly executed on behalf of Buyer and is a legally
binding obligation of Buyer and enforceable against Buyer in accordance with its terms. Buyer
has full requisite corporate power, authority and legal right to enter into this Agreement and
consummate the transactions provided for herein and the purchase has been authorized by all
requisite corporate action on the part of Buyer.
(c) Buyer shall retain the current employees of Seller on an at -will basis, and Buyer
shall provide to the employees of Seller compensation comparable to that presently paid by
Buyer to comparable employees and benefits comparable to those presently being provided by
Buyer to the employees in accordance with the terms of Buyer's benefit plans as amended from
time to time. Notwithstanding the foregoing, the parties acknowledge that Buyer is not adopting,
accepting, or assuming (or accepting the transfer of assets or liabilities from) any employee
Benefit Plan, program, agreement, trust, fiend, or other arrangement of Seller. This provision
shall not be construed as a contract for employment in favor of any person and no third -party
rights shall be granted hereby. Buyer shall be free to implement such employment practices as
are consistent with its normal procedures and practices. Seller shall be responsible for all
liabilities and obligations that arise or accrue on or before the Closing Date, including without
limitation, for employee benefits, accrued compensation, accrued vacation, workers'
compensation, and unemployment compensation claims.
7. Further Assurances. Upon the request of Buyer at any time following the Closing
Date and from time to time, Seller shall forthwith execute and deliver such further instruments of
assurance, transfer, endorsement, direction, or authorization as Buyer and its counsel shall
reasonably require, and which are consistent with the terms of this Agreement, in order to perfect
the title of Buyer and its successors and assigns in and to the Purchased Assets and in order to
enable Buyer to continue the operations related to the Purchased Assets in the same manner as
now operated by Seller.
8. Indemnification.
(a) Seller and Shareholders will, jointly and severally (but, as to such Shareholders,
only in accordance with their respective pro-rata ownership interest in Seller), release,
indemnify, defend and hold harmless Buyer, and its officers, agents, directors, affiliates,
shareholders representatives and employees from and against any and all losses, liabilities,
damages and costs, including related attorneys and consultant fees (collectively, "Losses"), that
shall arise out of, result from or constitute (i) any breach of any representation, warranty or
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covenant of this Agreement, or any non -fulfillment of any obligation of Seller under this
Agreement, or any exhibit, schedule, certificate or any other document furnished in connection
herewith or therewith, (ii) the Retained Liabilities, or (iii) the operation of the Business prior to
the Closing, whether disclosed or undisclosed, known or unknown, fixed or contingent.
(b) Buyer agrees that it will release, indemnify, defend and hold harmless Seiler and
Shareholders from and against any and all Losses (i) resulting from a breach of this Agreement
or from any inaccurate representation or warranty made by Buyer under this Agreement, (ii)
resulting from any default in the performance of any of the covenants or agreements made by
Buyer in this Agreement, or (iii) resulting from the actions or omissions of Buyer in the
operation of the Business after the Closing.
9. Environmental. Seller hereby represents and warrants to Buyer that:
(a) It has not disposed of or used or installed any Hazardous Materials (as hereinafter
defined) on the Purchased Properties and have not engaged in, and have no knowledge of, any
activity on the Purchased Properties which resulted in, or is likely to result in, the release or
threatened release of any Hazardous Materials.
(b) It has not violated any applicable Environmental Laws (as hereinafter defined)
relating to or affecting the Purchased Properties, and the Purchased Properties are free and clear
of any Liens imposed pursuant to any applicable Environmental Laws.
(c) Except as set forth on Schedule 9(c), the operation of the Business and the
Purchased Properties is, and at all times has been, in compliance with all applicable
Environmental Laws, and there are no circumstances presently existing on or related to the
Business or the Purchased Properties that could result in the violation of any applicable
Environmental Laws.
(d) Seller is not now, and have not been, subject to any order, threatened with any
enforcement action, received any notice, or received any request for information or any other
demand or inquiry pursuant to any Environmental Laws with respect to the Business, the
Purchased Properties or any activity or condition on the Purchased Properties.
(e) There is not now pending or threatened any action, suit, investigation or
proceeding against Seller relating to the Business or the Purchased Properties (or, to the best of
Seller's knowledge, against any other party relating to the Business or the Purchased Properties)
seeking to enforce any right or remedy under any Environmental Laws.
(f) Seller has, and, to its knowledge, at all times has had, all permits, licenses and
other governmental or regulatory authority necessary for the activities and operations of the
Business on the Purchased Properties, and Seller is, and, to its knowledge, has continuously
been, in full compliance with the terms and conditions of the aforesaid authorities.
(g) To the knowledge of Seller, there are no underground storage tanks located on
any of the Purchased Properties.
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Seller holds Buyer free, harmless, and indemnified from any losses, liabilities, damages, costs
(including related attorneys and consultant fees), fines, penalties, clean-up costs, environmental
assessment or investigation costs and any pollution related items, expenses and deficiencies
which shall arise out of, result from or constitute any breach of any representation, warranty or
covenant of this Section 9, or any non -fulfillment of any obligation of Seller under this Section
9, including, but not limited to: (1) the cost of bringing the Purchased Properties into
compliance with all Environmental Laws; (2) the cost of all appropriate tests and examinations
of the Purchased Properties to confirm that the same has been brought into compliance with all
Environmental Laws; and (3) the reasonable fees and expenses of Buyer and its attorneys,
engineers, and consultants incurred in enforcing and confirming compliance with this Section
9.
For purposes of this Purchase Agreement, "Hazardous Materials" means and includes (a)
any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid,
mineral or gas, in each case, whether naturally occurring or manmade, that is hazardous, acutely
hazardous, toxic, or words of similar import or regulatory effect under Environmental Laws; (b)
any petroleum or petroleum -derived products, radon, radioactive materials or wastes, asbestos in
any form, lead or lead -containing materials, urea formaldehyde foam insulation and
polychlorinated biphenyls, (c) any flammable explosives, radioactive materials, asbestos or any
material containing asbestos, and/or any hazardous, toxic or dangerous waste, substance or
material defined as such in (or for the purpose of) any Environmental Laws as may now be in
effect.
For purposes of this Purchase Agreement, "Environmental Laws" includes, without
limitation, the following (including their implementing regulations and any state analogs): the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended
by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq.; the
Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976,
as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.;
the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977,
33 U.S.C. §§ 1251 et seq.; the Toxic Substances Control Act of 1976, as amended, 15 U.S.C. §§
2601 et seq.; the Emergency Planning and Community Right -to -Know Act of 1986, 42 U.S.C. §§
11001 et seq.; the Clean Air Act of 1966, as amended by the Clean Air Act Amendments of
1990, 42 U.S.C. §§ 7401 et seq.; and the Occupational Safety and Health Act of 1970, as
amended, 29 U.S.C. §§ 651 et seq., the Hazardous Materials Transportation Act, and
"Superfund" or "Superlien" Law, or any other environmental federal, state or local Law, rule,
regulation or decree, regulating, relating to or imposing liability or standards of conduct
concerning any environmental matter.
The foregoing environmental warranties, representations and indemnifications shall
survive the Closing of this transaction.
Notwithstanding the foregoing, Buyer acknowledges that Seller has ordered a Phase One
Environmental Site Assessment (the "ESAs") for each of the Purchased Properties on behalf of
Buyer and Buyer agrees to reimburse Seller for the costs of such ESAs at Closing in an amount
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of approximately $1,900 per Purchased Property (approximately $7,600 in total). Provided,
however, in the event that any of the ESAs indicate the existence of Hazardous Materials, or the
potential for the existence of Hazardous Materials, or otherwise identify any Recognized
Environmental Conditions (RECs), then Seller shall be responsible, at its sole cost and expense,
for causing such additional environmental investigations and remediations to be made to the
reasonable satisfaction of Buyer.
10. Accounts Payable. Seller shall be current with regard to the payment of all
liabilities, payables and other assessments associated with the operation of the Business up to
and including through the Closing Date, and the responsibility for payment of all such payables
shall be the obligation of Seller. It is expressly understood and agreed that Seller shall pay any
accounts payable (including any accrued charges and open accounts) according to their regular
and customary terms.
11. Prorations, Taxes and Expense. Each party shall pay its own legal expenses
related to this Agreement and shall prorate (on a calendar year basis) all property taxes and other
charges and assessments charged against or related to the Purchased Assets. Upon receipt of a
bill or other document by a party evidencing property taxes, charges or assessments
contemplated hereunder, the said party shall send a copy of such bill or document to the other
party who shall remit his proportionate share of the taxes, charges or assessments evidenced by
such bill or document. Seller shall be responsible for and shall indemnify and hold harmless
Buyer from any and all transfer, documentary, sales, use, stamp, registration and other such taxes
and fees (including any penalties and interest) resulting from or relating to this transaction.
12. Conduct of Business. Seller hereby covenants and agrees that, prior to the
Closing:
(a) Seller will at all times from the date hereof until Closing, carry on the Business
only in the ordinary course of business, maintain and keep its property in substantially the same
condition as upon the date of this Agreement, reasonable wear and tear excepted; and Seller will
maintain proper business and accounting records and maintain presently existing insurance on
property to be purchased.
(b) Seller shall use, sell, or otherwise deplete the Inventory Purchased Assets only in
the ordinary course of business. Seller shall maintain adequate records to reflect its use, sales,
and depletion of the Inventory Purchased Assets in order for Buyer to make its inspection
pursuant to Section 1 d .
(c) Seller will not make any acquisition of any assets or business in connection with
the Business, other than expenditures for inventory in the ordinary course of business, sell,
pledge, dispose of, lease or encumber any Purchased Assets, other than sales of inventory in the
ordinary course of business or enter into any contract, agreement, commitment or arrangement
with respect to other of the foregoing.
(d) Seller will not enter into or assume any contracts or agreements outside of the
ordinary course of business with respect to the Business.
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(e) Seller will use commercially reasonable efforts in the ordinary course of business
to preserve their relationships with their suppliers, customers and others having business
relations with the Business.
(f) Seller shall cause any obligations, which are or may constitute a lien or
encumbrance on the Purchased Assets, to be paid at or prior to Closing, and Seller shall cause all
Liens to be discharged or cancelled as of Closing, as soon as practicable thereafter.
(g) Seller shall provide such affidavits and indemnifications as reasonably required
by Buyer's title insurance company to insure title without exceptions to mechanics and
materialmen liens as rights of tenant.
(h) From the date hereof until the Closing, Seller shall (i) afford Buyer and its
designated representatives full and free access to and the right to inspect all of the Leased
Properties, Owned Properties, assets, and premises related to the Business; (ii) furnish Buyer and
its designated representatives with such financial, operating and other data and information
related to the Business as Buyer or any of its designated representatives may reasonably request;
and (iii) instruct the representatives of Seller to cooperate with Buyer in its investigation of the
Business. Any investigation pursuant to this Section 12(h) shall be conducted in such manner as
not to interfere unreasonably with the conduct of the Business or any other businesses of Seller.
No investigation by Buyer or other information received by Buyer shall operate as a waiver or
otherwise affect any representation, warranty or agreement given or made by Seller in this
Agreement.
13. Closing. Subject to the satisfaction or waiver of the conditions set forth in Section
14 and Section 15, the Closing (herein "Closing") shall be held at the offices of Manning Fulton
& Skinner, 3605 Glenwood Avenue, Suite 500, Raleigh, North Carolina 27612, or such other
place as may be agreed by the parties, and shall occur on or before the later of April 1, 2020 or
the third business day after the satisfaction of the conditions set forth in Section 14 and Section
15 (other than conditions to be satisfied at Closing), or such other date as may be agreed upon by
the parties (the "Closing Date").
14. Conditions to Obligations of Buyer, The obligations of Buyer to consummate the
transactions herein contemplated are subject to the satisfaction (or waiver) on or prior to the
Closing of the following conditions:
(a) Representations and Warranties. The representations and warranties of Seller
contained in this Agreement and in any exhibit, schedule, instrument, agreement or other
document delivered to Buyer pursuant thereto shall be true and correct on and as of the Closing
with the same effect as though such representations and warranties had been made on and as of
the Closing Date and such schedules and instruments had been delivered on such date, and Buyer
shall have received a certificate from Seller to the foregoing effect.
(b) Adverse Chang. There shall not have occurred any material adverse change to
the Purchased Assets or the Business.
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(c) Title and Documents of Title. Buyer shall have received the Purchased Assets
clear and unencumbered of Liens and liabilities with the documents required under Section 16
for the Owned Properties and Bill of Sale or other appropriate documents of title for the other
Purchased Assets, which must convey to Buyer fee simple marketable title to the Purchased
Properties and the other Purchased Assets, free of all Liens, except for the current year's property
taxes (prorated to the Closing Date), and such other encumbrances as may be assumed or
specifically approved by Buyer. For the purposes of this Section and this Agreement, an asset
shall be deemed "free of all Liens" if payment is made at or prior to Closing for any and all debts
or obligations that are or may become a lien on any Purchased Asset. This provision shall apply
even if one or more documents evidencing the lien have not been cancelled of record or a lien is
reflected on a title at the time of Closing. Seller shall cooperate with Buyer and undertake to
have all Liens released and cancelled of record in as soon as practicable.
(d) Lease. The Lease shall remain in full force and effect as a valid and binding
legal agreement with the landowner (the "Landlord"), and Seller shall have caused Landlord to
deliver to Buyer, in a form reasonably acceptable to Landlord, the following: (i) an estoppel
certificate in a form reasonably acceptable to Buyer and its lender confirming, among other
things, that the Lease remains in fill force and effect and that no default has occurred thereunder;
(ii) an amendment to the Lease which extends the term of the Lease for a period of not less than
twenty (20) years from the date of Closing and provides for a base rent obligation under the
Lease equal to $830 per month for the first five (5) years of the term following Closing, with
escalations every five (5) years equal to the corresponding increase in Consumer Price Index, all
in a form reasonably acceptable to Buyer; and (iii) if and to the extent required by Buyer's lender,
a Non -Disturbance and Attornment Agreement in a form reasonably acceptable to Buyer.
(e) Performance of Covenants. Each and all of the covenants and agreements of
Seller to be performed or complied with prior to or on the Closing Date shall have been duly
performed or complied with by Seller in all material respects.
(f) FIRPTA. Seller shall have delivered to Buyer a certificate meeting the
requirements of Treasury Regulation 1.1445-2(b)(2) certifying that Seller is not a foreign person.
(g) No Proceedings. No order, action or proceeding shall have been made or
instituted or shall have been threatened, before a court or other governmental body or any
public authority to restrain or prohibit the transactions contemplated herein or affecting the
Purchased Assets.
(h) Due Diligence. Buyer shall have completed its due diligence investigation of the
Business and operations of Seller and shall be fully satisfied, in its reasonable discretion, with
the results of such investigation. Buyer shall notify Seller in writing of any matters that are
unacceptable to Buyer no later than five (5) business days after a determination is made. Seller
shall have not less than thirty (30) days from the date that notification is received within which to
effect a cure of the unacceptable condition. In the event that Seller cannot cure the defect and
Buyer does not waive the same, then Buyer shall return to Seller all Due Diligence materials
(including copies reproduced by Buyer) provided to Buyer by Seller.
11
3243081 v2. DJS.24586.G5 ] 559

(i) Seller Closing Deliveries. Seller shall have delivered to Buyer, all documents
and instruments necessary or required to effect the sale and transfer under this Agreement,
including without limitation:
(a) such bills of sale, endorsements, assignments and other good and sufficient
instruments of conveyance (collectively, the "Bill of Sale"), as will effectively
convey to Buyer all title to and interest in the Purchased Assets;
(b) an assignment and assumption agreement (the "Assignment and Assumption
Agreement"), duly executed by Seller, effecting the assignment to and
assumption by Buyer of the Business Contracts and Lease;
(c) a closing and disbursement statement (the "Closint Statement"), duly
executed by Seller, enumerating the Purchase Price, prorations and
adjustments all in accordance with this Agreement or otherwise agreed up on
by Buyer and Seller;
(d) Any documentation or applications necessary or required to initiate a formal
transfer of the Permits, including any temporary license to permit use of the
Permits pending formal transfer and/or reissuance of the same;
(e) a certificate of good standing with respect to Seller issued by the North
Carolina Secretary of State, dated no more than thirty (30) days before the
Closing Date;
(f) a certificate of an officer of Seller certifying (A) the articles of incorporation
of Seller (certified by the North Carolina Secretary of State), (B) the bylaws of
Seller and (C) the resolutions of the directors and Shareholders of Seller, duly
adopted and in effect, which authorize the execution, delivery and
performance of this Agreement and the transactions contemplated hereby by
the persons identified in said resolutions;
(g) evidence of release of all Liens upon the Purchased Assets;
(h) as for all Vehicles, all keys and maintenance records; and
(i) such other customary instruments of transfer, assumption, filings or
documents, in form and substance reasonably satisfactory to Buyer, as may be
required to give effect to this Agreement.
15. Conditions to the Obligations of Seller. The obligation of Seller to consummate
the transactions herein contemplated are subject to the satisfaction on or prior to the Closing of
the conditions set forth herein below:
(a) Payment of Purchase Price. Buyer shall have delivered the Purchase Price to
Seller as provided in this Agreement.
12
3243081 v2.DJS.24586.G51559

(b) Performance of Covenants. Each of the covenants and agreements of Buyer to be
performed or complied with prior to or on the Closing Date shall have been duly performed or
complied with by Buyer in all material respects.
(c) Representations and Warranties. The representations and warranties of Buyer
contained in this Agreement and in any exhibit, schedule, instrument, agreement or other
document delivered to Seller pursuant thereto shall be true and correct on and as of the Closing
with the same effect as though such representations and warranties had been made on and as of
such Closing, or such schedules and instruments had been delivered on such date and Seller shall
have received a certificate from Buyer to the foregoing effect.
(d) No Proceedings . No order, action or proceeding shall have been made or
instituted or shall have been threatened, before a court or other governmental body or any
public authority to restrain or prohibit the transactions contemplated herein or affecting the
Purchased Assets.
16. Real Property. The following provisions shall apply with respect to the Purchased
Properties; all permits, licenses, and other governmental approvals applicable thereto, and all
other contracts and agreements having to do with the ownership, lease, operation, maintenance,
or management of the foregoing which are accepted and assumed by Buyer.
(a) Title. At the Closing, Seller shall cause to be delivered to Buyer special warranty
deeds, warranty bills of sale, and assignments with warranty, covering all of the Owned
Properties, title affidavit(s) in form acceptable to Buyer's title company, a non -foreign affidavit
and a form 1099 designation, each in form and content reasonably satisfactory to Buyer and its
counsel, with transfer or documentary tax paid at Seller's expense, conveying to Buyer good,
indefeasible, fee simple, marketable and insurable title to all of the Owned Properties, subject
only to:
(i) General real estate taxes for the current year which are not yet past due
and subject to penalty, and such taxes for subsequent years;
(ii) Utility easements, covenants, and restrictions of record which do not
materially adversely affect the value of the Owned Properties, are not encroached upon
or violated by the existing buildings and improvements of the Owned Properties, and
do not prohibit or unduly restrict the use of the Owned Properties for its present or
intended purposes or any other purposes permitted under applicable zoning
classifications;
(iii) Zoning and building Laws or ordinances, provided the same do not
prohibit the use of the Owned Properties for its present or intended purposes and the
Owned Properties are in compliance therewith; and
(iv) Such other matters affecting the title to the Owned Properties as Buyer, in
its sole discretion, shall accept.
13
3243081v2.DIS.24586.G51559

(b) S. urvey. Prior to the Closing Date, Buyer may cause to be secured at Buyer's
expense current "as -built" surveys (the "Surveys") of the parcels of land and improvements
included in the Purchased Properties, prepared by a duly registered land surveyor or licensed
engineer in the state in which the property is located, which Surveys shall be certified to Buyer
and the title insurer, together with surveyor's certificates and flood certifications, all of which
shall substantially conform to the requirements of the title insurer for deletion of any survey
exception from any commitment of the title insurer and owner's title policy. The Surveys shall
be used for the descriptions of the parcels of land contained in any such commitment, the deeds
of conveyance, and all other documents related to this transaction which require a legal
description.
17. Vehicles. After the Closing, Buyer shall as expeditiously as possible obtain new
titles and license tags for the vehicles, which will be assigned to it at Closing. Buyer may use all
of the vehicles while they are still registered under the State motor vehicle Laws in the Seller's
name until a new document of title and license tag can be obtained in Buyer's name ("Owned
Documents of Title"). Buyer will pay all costs and fees associated with obtaining the Owned
Documents of Title. For the time period of Buyer's use of the vehicles ("Buyer's- Economic
Benefit Period'), Buyer shall be responsible for all expenses related to the vehicles, including but
not limited to direct operating costs of the vehicles, such as fuel and maintenance and other costs
such as insurance, property and other taxes, tags and license fees. If Seller should pay a cost
which relates to a period of time which includes Buyer's Economic Benefit Period, such cost
shall be prorated between the pre- and post -Closing periods and upon receipt of a bill or other
document by a party evidencing insurance, property or other taxes, license fees or other charges
contemplated hereunder, the said party shall send a copy of such bill or document to the other
party who shall remit his proportionate share of the insurance, taxes, or charges evidenced by
such bill or document. All such costs, which confer a measurable benefit upon the other party's
use of the vehicles, shall be prorated and resolved in an equitable manner by the good faith
negotiation of the parties. Buyer will include Seller as additional or a named insureds on such
automobile liability insurance policy until and including the later of (a) the passing of six (6)
months after the date of the Closing, or (b) titles and vehicle tags of all the vehicles are registered
in the name of Buyer. Buyer shall assume all risk of loss of such vehicles after the Closing.
18. Non -Solicitation.
a. Non -Solicitation of Employees. Seller and Shareholders agree not to disrupt or
interfere with Buyer's business by directly or indirectly soliciting, recruiting, or attempting to
recruit the employees of the Buyer, or otherwise inducing the termination of employment of any
employee of the Buyer. The terms of this paragraph shall survive the Closing.
b. Breach. Seller and Shareholders acknowledge that the nature and periods of
restrictions imposed by the covenants contained in this Section 18 are fair, reasonable, and
necessary in order to protect and preserve for the Buyer the benefits of the Business acquired by
Buyer and that such restrictions will not prevent Seller or Shareholders from carning a
livelihood. If any court or tribunal of competent jurisdiction shall refuse to enforce any or all of
the covenants because, taken together, they are more extensive than is deemed to be reasonable,
14
3243081 v2.DJS.24586. G51559

it is expressly understood and agreed between the parties hereto that such covenant or covenants
shall not be void, but that for the purposes of such proceedings, the restrictions contained therein
shall be deemed to be reduced to the extent necessary to permit the enforcement of such separate
covenant or separate covenants. In addition to all other remedies available by law, if Seller or
Shareholders violate any restrictions set forth in this Section 18, then the Buyer shall be entitled
to an injunction restraining Seller or Shareholders from further violations.
19. Survival. Except as otherwise provided herein, all representations, warranties and
indemnities of Seller and Buyer to this Agreement, made in this Agreement, shall survive until
the second anniversary of the Closing; provided, that, for the avoidance of doubt, the
representations, the warranties and indemnities relating to the environmental matters set forth in
Section 9 shall survive as set forth in Section 9. This Agreement creates continuing obligations,
which are binding and active until all undertakings, direct and indirect, are fulfilled, and all
covenants contained in the Agreement shall survive in accordance with their terms.
20. Termination. This Agreement may be terminated at any time prior to or on the
Closing Date by either party in the event that: (i) the representations and warranties of the other
party shall prove not to have been true in all material respects as of the date when made, (ii)
events shall have occurred subsequent to the date hereof as a result of which the representations
and warranties of the other party could not be true in all material respects as of the Closing Date,
unless the occurrence of such events shall be due to the failure of the party seeking to terminate
this Agreement to perform or comply with any of the covenants, agreements or conditions hereof
to be performed or complied with by such party prior to the Closing, or (iii) the Closing shall not
have occurred prior to 5:00 p.m., Raleigh, North Carolina, local time, on the date that is ninety
(90) days after the date of this Agreement (or such other date as may be mutually agreed to by
the parties) through no fault of the terminating party. If this Agreement is terminated as
permitted under this Section 20, such termination shall be without liability of or to any party to
this Agreement or any shareholder, partner, member, manager, director, officer, employee or
agent of such party, except (a) for any liability of any party who has caused such termination by
breaching this Agreement, and (b) for any liability with respect to breaches of contractual
provisions that by their nature and terms survive termination of this Agreement.
21. Construction. This Agreement shall be construed and enforced in accordance with
the Laws of the State of North Carolina. Any reference in this Agreement to the knowledge of
Seller shall be deemed to mean the actual or constructive knowledge of the officers of Seller and
Shareholders after reasonable investigation.
22. Notices. All notices, requests, demands, and other communications hereunder
shall be in writing, and shall be deemed to have been duly given if delivered or mailed, first class
postage prepaid:
(a) If to Seller, at:
PLT Concrete Services, .Inc.
3214 Turnage Road
Wilson, NC 27893
15
3243081 v2. DJS.24586,G51559

If to Shareholder, at:
Gregory A. Turnage
3310 Wetherly Drive
Wilson, NC 27894
PLT Concrete Services, Inc.
3214 Turnage Rd.
Wilson, NC 27893
Attn: Philip R. Proctor
PLT Construction Co., Inc.
5676 Thompson Chapel Church Rd,
Wilson, NC 27896
Attn: Kelly Proctor
with a copy to:
Paul N. Blake III
3310 Wetherly Drive
Wilson, NC 27894
or at such other address as they may furnish to Buyer in writing, or
(b) if to Buyer, at:
Eagle Rock Concrete LLC
8311 Bandford Way, Ste. 107
Raleigh, NC 27615
Attn: J.G. Loftin, Jr.
with copy to:
Manning, Fulton & Skinner, P.A.
P. O. Box 20389
Raleigh, North Carolina 27619
Attn: Douglas J. Short
Email: [e-mail]
or at such other address as they may furnish to Seller in writing.
23. Counterparts. This Agreement may be executed in any number of counterparts, all
of which shall be deemed to constitute one and the same instrument. A signed copy of this
Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be
deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
16
3243081v2.DJs.24586.051559

24. Headings. The headings of the paragraphs in this Agreement are inserted for
convenience only and shall not be construed as part of this Agreement.
25. Entire Agreement. This Agreement and the exhibits and schedules attached hereto
contain the entire Agreement of the parties hereto with respect of the Purchased Assets and the
transaction described hereunder and supersedes all prior understandings and agreements of the
parties with respect to the subject matter hereof. Any reference herein to this Agreement shall be
deemed to include the exhibits and schedules attached hereto, all of which are incorporated
herein by reference. All representations, promises, and prior or contemporaneous understandings
between the parties with respect to the subject matter hereof are merged here into and expressed
herein. The parties hereto may amend, modify or supplement this Agreement in such a manner as
may be agreed upon by them in writing.
26. Inurement. The Agreement shall be binding upon and inure to the benefit of the
Seller, Buyer and their respective heirs, successors and permitted assigns.
27. Severability. If any provision of this Agreement (or portion thereof) shall be
determined to be void by any court of competent jurisdiction then such determination shall not
affect any other provision of this Agreement (or portion thereof), all of which other provisions
(and portions thereof) shall remain in full force and effect.
28. Brokers. The parties represent to each other that no broker has been engaged in
connection with this transaction and agree to indemnify and hold each other harmless pursuant to
Section hereof, against any claim from any broker or finder based upon any agreement,
arrangement or understanding alleged to have been made by Buyer or Seller, as the case maybe.
28. Confidentiality. Seller and Buyer agree that neither they nor any of their officers,
directors, employees or agents or anyone else on their behalf, shall discuss or disclose the
contents of this Purchase Agreement or any transactions contemplated herein with any other
person without the prior consent of the other party or as otherwise required by Law or judicial
process until after the Closing.
29, Waiver. No waiver by any party of any of the provisions hereof shall be effective
unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party
shall operate or be construed as a waiver in respect of any failure, breach or default not expressly
identified by such written waiver, whether of a similar or different character, and whether
occurring before or after that waiver. No failure to exercise, or delay in exercising, any right,
remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.
30. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal Laws of the State of North Carolina without giving effect to any
17
3243081 v2.DJS.24586.G51559

choice or conflict of law provision or rule (whether of the State of North Carolina or any other
jurisdiction).
31. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or
based upon this Agreement or the transactions contemplated hereby may be instituted in the
federal courts of the United States of America or the courts of the State of North Carolina in each
case located in the City of Raleigh and County of Wake, and each party irrevocably submits to
the exclusive jurisdiction of such courts in any such suit, action or proceeding.
32. Specific Performance. The parties agree that irreparable damage would occur if
any provision of this Agreement were not performed in accordance with the terms hereof and
that Buyer shall be entitled to specific performance of the terms hereof, in addition to any other
remedy to which it is entitled at law or in equity.
33. Disclosure Schedules. The disclosure schedules are a series of schedules (the
"Disclosure Schedules") corresponding to the sections contained in this Agreement and
containing the information required to be disclosed pursuant to, and certain exceptions to, the
representations and warranties in such Section. Matters set forth in the Disclosure Schedules are
not necessarily limited to matters required by this Agreement to be reflected in the Disclosure
Schedules. Such additional matters are set forth for informational purposes, and the Disclosure
Schedules may not necessarily include other matters of a similar nature. Any disclosure set forth
in any particular section of the Disclosure Schedules will be deemed disclosed in reference to all
applicable sections if the relevance and applicability of such disclosure to such other section is
readily apparent on the face thereof.
[SIGNATURE PAGE FOLLOWS)
18
3243081 VIMS.24586.G51559

IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals or
caused these presents to be executed by their duly authorized officers as of the /, day of
�� , 2020.
SELLER:
PLT CONCRETE SERVICES, INC.
By:
Gregory A. Turnage, President
SHAREHOLDERS:
SHAREHOLDERS:
EAGLE ROCK CONCRETE LLC
By: Q.
'
. Loftin, Jr., ager

EXHIBIT A
Owned Properties
4541 Dozier Road, Rocky Mount, NC 27804
145,6 4 US-264, Zebulon, NC 27597
3073 West Oak Street, Selma, NC 27576
20
3243081 v2.D35.24586.G51559

EXHIBIT B
Leased Properties
3214 Turnage Road, Wilson, NC 27893
21
3243081v2, DJS.24586.G51559

S�Ei�iFEiP.S'a�ia7:j�i�CIl'�yQ$$�'74d{1�3 s�1
ZI Vr; xT@}t
EXHIBIT C
Business Contracts
r
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rr
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_:2 r8 r&xPa '�1 $ �r'C4 �s !e3 i¢�°H' a4• "� E sxi`�" f+ .*..;tom cr0.s Lec 4ip 0 tt r> c""h.:"/ o�A; sa .v^a.: x ss&a r +,w'a.'e AYl 7" V.2s • I"P
s-.'Texem.'pAa �Y`A*++M'a �E'+v�• irv+alit.LS�r �'.a se*ai'i�Ci: €'f �inr P.`S. kL. 4833 ffie.Y-m'3 � ��cs b'$t�r�em:€�Y sirv:'E`a � 'tea &d `a^� L�`�'s`�-'�,
lteaT�+rrarw .�'xa.a+xE f�� 'F �E34 '�=`§�°di'g9-s`�aA3f±AF�lssaa
f
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22
3243081 v2. DJS.24586.G51559

23
3243081v2.DJ5.24586.G51559

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24
3243081 v2.DIS,2458b.G51559

D"E QF MOVE C31 Q0,
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25
3243081v2.DJS.24586,G51554

EXHIBIT D
Purchase Price Allocation
(in dollars)
Mixers, Vehicles/Loaders
$4,450,000
Land
$740,000
B1dg/Site Work
$1,500,000
Plant and Equipment
$3,900,000
Goodwill
$2,910,000
Total
$13,500,000
26
3243081 v2. DIS.24586. G51559

Schedule 5(o)
Absence of Certain Changes
-' "'
141trtC�Rf}.ii3;'.tI. Cf3J
CAR EPIVOICE
':.;
L tr-ai ;S'rraa�C=
45dljl i RoadtJ�S
� f0 niie;lwl Road P{E4W
Cerolirlat 2i895
r' LINCOLN
L��
wi!Jrn, Noral
Alarm, £amp
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Schedule 9(c)
Environmental Non -Compliance
None
3243 0S 1 v2.DJS.24586. G51559