UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 10-K

 

 

(Mark One)

x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 28, 2013

OR

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                      to                     

Commission file number 333-187556

 

 

SUMMIT MATERIALS, LLC

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   24-4138486

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

1550 Wynkoop Street, 3 rd Floor

Denver, Colorado

  80202
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (303) 893-0012

 

 

Securities registered pursuant to Section 12(b) of the Act: None

Securities registered pursuant to Section 12(g) of the Act: None

 

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes   ¨     No   x

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes   x     No   ¨

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   ¨     No   x

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   x     No   ¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K   x

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   x    Smaller reporting company   ¨

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes   ¨     No   x

As of March 7, 2014, 100% of the registrant’s outstanding limited liability company interests were held by Summit Materials Intermediate Holdings, LLC.

 

 

 


PART    ITEM         PAGE  

I

   1   

Business

     3   
   1A   

Risk Factors

     15   
   1B   

Unresolved Staff Comments

     23   
   2   

Properties

     24   
   3   

Legal Proceedings

     31   
   4   

Mine Safety Disclosures

     31   

II

   5   

Market for the Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

     32   
   6   

Selected Financial Data

     32   
   7   

Management’s Discussion and Analysis of Financial Condition and Results of Operations

     34   
   7A   

Quantitative and Qualitative Disclosures about Market Risk

     54   
   8   

Financial Statements and Supplementary Data

     56   
   9   

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

     95   
   9A   

Controls and Procedures

     95   
   9B   

Other Information

     95   

III

   10   

Directors, Executive Officers and Corporate Governance

     96   
   11   

Executive Compensation

     99   
   12   

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

     107   
   13   

Certain Relationships and Related Transactions, and Director Independence

     109   
   14   

Principal Accountant Fees and Services

     110   

IV

   15   

Exhibits and Financial Statement Schedules

     112   


DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS

This annual report on Form 10-K (this “report”) contains “forward-looking statements” within the meaning of the federal securities laws, which involve risks and uncertainties. Forward-looking statements include all statements that do not relate solely to historical or current facts, and you can identify forward-looking statements because they contain words such as “believes,” “expects,” “may,” “will,” “should,” “seeks,” “intends,” “trends,” “plans,” “estimates,” “projects” or “anticipates” or similar expressions that concern our strategy, plans, expectations or intentions. All statements made relating to our estimated and projected earnings, margins, costs, expenditures, cash flows, growth rates and financial results are forward-looking statements. These forward-looking statements are subject to risks and uncertainties that may change at any time, and, therefore, our actual results may differ materially from those expected. We derive many of our forward-looking statements from our operating budgets and forecasts, which are based upon many detailed assumptions. While we believe that our assumptions are reasonable, it is very difficult to predict the effect of known factors, and, of course, it is impossible to anticipate all factors that could affect our actual results.

Some of the important factors that could cause actual results to differ materially from our expectations are disclosed under “Risk Factors” and elsewhere in this report. All subsequent written and oral forward-looking statements attributable to us, or persons acting on our behalf, are expressly qualified in their entirety by these cautionary statements.

We undertake no obligation to publicly update or revise any forward-looking statement as a result of new information, future events or otherwise, except as otherwise required by law.

CERTAIN DEFINITIONS

As used in this report, unless otherwise noted or the context otherwise requires:

 

   

“We,” “our,” “us,” and “the Company” refer to Summit Materials, LLC and its subsidiaries as a combined entity;

 

   

“Parent” refers only to Summit Materials Holdings L.P., our indirect parent entity;

 

   

“Summit Materials” refers only to Summit Materials, LLC and not its subsidiaries;

 

   

“Finance Corp.” refers only to Summit Materials Finance Corp., a 100 percent-owned subsidiary of Summit Materials;

 

   

“Hamm” and “Predecessor” refer to Hamm, Inc., our inaugural acquisition and the predecessor entity of Summit Materials;

 

   

“Cornejo” refers collectively to Cornejo & Sons, L.L.C., C&S Group, Inc., Concrete Materials Company of Kansas, LLC and Cornejo Materials, Inc.;

 

   

“Continental Cement” refers to Continental Cement Company, L.L.C. and its subsidiary;

 

   

“Harper Contracting” refers collectively to substantially all the assets of Harper Contracting, Inc., Harper Sand and Gravel, Inc., Harper Excavating, Inc., Harper Ready Mix Company, Inc. and Harper Investments, Inc.;

 

   

“Altaview Concrete” refers collectively to Altaview Concrete, LLC, Peak Construction Materials, LLC, Peak Management, L.C. and Wasatch Concrete Pumping, LLC;

 

   

“RK Hall” refers collectively to R.K. Hall Construction, Ltd., RHMB Capital, L.L.C., Hall Materials, Ltd., B&H Contracting, L.P. and RKH Capital, L.L.C.;

 

   

“B&B” refers collectively to B&B Resources, Inc., Valley Ready Mix, Inc. and Salt Lake Sand & Gravel, Inc.;

 

   

“Industrial Asphalt” refers collectively to Industrial Asphalt, LLC, Asphalt Paving Company of Austin, LLC, KBDJ, L.P. and all the assets of Apache Materials Transport, Inc.;

 

   

“Ramming Paving” refers collectively to J.D. Ramming Paving Co., LLC, RTI Hot Mix, LLC, RTI Equipment Co., LLC and Ramming Transportation Co., LLC;

 

   

“Norris” refers to Norris Quarries, LLC;

 

   

“Kay & Kay” refers to certain assets of Kay & Kay Contracting, LLC;

 

   

“Sandco” refers to certain assets of Sandco Inc.;

 

1


   

“Lafarge” refers to Lafarge North America, Inc.;

 

   

“Westroc” refers to Westroc, LLC;

 

   

“Alleyton” refers collectively to Alleyton Resource Company, LLC; Alcomat, LLC and Alleyton Services Company, LLC, formerly known as Alleyton Resource Corporation, Colorado Gulf, LP and certain assets of Barten Shepard Investments, LP;

 

   

“Blackstone” refers to certain investment funds affiliated with Blackstone Capital Partners V L.P.;

 

   

“Silverhawk” refers to certain investment funds affiliated with Silverhawk Summit, L.P.; and

 

   

“Sponsors” refers to Blackstone and Silverhawk.

 

2


PART I

 

Item 1. BUSINESS.

Overview

We are a leading, vertically-integrated, geographically-diverse, heavy-side building materials company. We supply aggregates, cement and related downstream products such as ready-mixed concrete, asphalt paving mix, concrete products and paving and related construction services for a variety of end uses in the U.S. construction industry, including private residential and non-residential construction, as well as public infrastructure projects. We believe we are a top 15 supplier of aggregates, a top 25 producer of cement and a major producer of asphalt paving mix and ready-mixed concrete in the United States by volume. As of December 28, 2013, we had 1.2 billion tons and 0.4 billion tons of proven and probable aggregates reserves serving our aggregates and cement businesses, respectively, and operated over 200 sites and plants. In the year ended December 28, 2013, we sold 17.5 million tons of aggregates, 1.0 million tons of cement, 1.2 million cubic yards of ready-mixed concrete and 3.9 million tons of asphalt paving mix. For the year ended December 28, 2013, we generated revenue of $916.2 million.

Summit Materials is a limited liability company that was formed under the laws of the State of Delaware in September 2008. Since July 2009, the Sponsors and certain of our officers, directors and employees have made $794.5 million of funding commitments to Parent. We have grown rapidly through our disciplined acquisition strategy, utilizing approximately $463.9 million of equity commitments funded to Parent by the Sponsors and certain other investors. Today, our eight operating companies make up our three distinct geographic regions, spanning 16 states and 23 metropolitan statistical areas. We believe each of our operating companies has a top three market share position in its local market area and an extensive operating history, averaging over 35 years. Our highly experienced management team, led by 30-year industry veteran CEO, Tom Hill, has successfully enhanced the operations of acquired companies by focusing on scale advantages, cost efficiencies and pricing discipline to improve profitability and cash flow.

Our strategy is focused on developing a vertically-integrated, heavy-side building materials company with a strong aggregates base. We strive to be a leading supplier of all four major resource-based products—aggregates, cement, ready-mixed concrete and asphalt paving mix—in the U.S. heavy-side building materials industry. We believe vertical integration across these major products strengthens our market positions and helps us achieve significant cost advantages. We believe a diversified mix of products also provides us with greater stability and insulates against local market fluctuations, pricing dynamics and other individual market variances.

Our revenue is derived from multiple end-use markets, including residential and non-residential construction, as well as public infrastructure construction. For the year ended December 28, 2013, approximately 42% of our revenue related to residential and non-residential construction and approximately 58% related to public infrastructure construction. In general, our aggregates and asphalt paving mix and paving businesses are weighted towards public infrastructure construction. Our cement and ready-mixed concrete businesses serve both the private construction and public infrastructure markets. Private construction includes both new residential and non-residential construction and repair and remodel markets, which have been significantly affected by recent and current economic conditions. We believe exposure to various geographic markets affords us greater stability through economic cycles and positions us to capitalize on upside opportunities when the residential and non-residential construction markets recover. Public infrastructure construction includes spending by federal, state and local governments for roads, highways, bridges, airports and other public infrastructure construction projects. A significant portion of our construction services revenue is from public infrastructure construction projects, a historically more stable portion of state and federal budgets. Our acquisitions to date are primarily focused in states with constitutionally-protected transportation funding sources, which we believe limits our exposure to state and local budgetary uncertainties.

Markets by Region

We currently operate across 16 states through our three regional platforms, which also serve as our reporting segments: Central, West and East. Information concerning revenue, operating income (loss), assets employed and certain additional information attributable to each reporting segment for each year in the three year period ended December 28, 2013 is included in note 20 to our audited consolidated financial information included elsewhere in this report, which information is incorporated herein by reference. Each of our operating businesses has its own management team that, in turn, reports to a regional president who is responsible for overseeing the operating businesses, developing growth opportunities, implementing best practices and integrating acquired businesses within the regional platform. Acquisitions are an important element of our strategy, as we seek to enhance value through increased scale and cost savings from vertical integration within local markets.

 

3


Central Region . The Central region encompasses our integrated aggregates, cement, ready-mixed concrete, asphalt paving mix, construction and other operations in Kansas, Missouri, Nebraska, Iowa and Illinois. As of December 28, 2013, within the region, we controlled approximately 0.4 billion tons of proven and probable aggregates reserves serving our aggregates business and approximately 0.4 billion tons serving our cement business and $523.2 million of net property, plant and equipment and inventories (“hard assets”). During the years ended December 28, 2013 and December 29, 2012, approximately 36% and 33%, respectively, of our revenue was generated in the Central region. Approximately 57% and 48% of the Central region’s revenue was derived from residential and non-residential construction and the remaining approximately 43% and 52% was derived from public infrastructure spending in the years ended December 28, 2013 and December 29, 2012, respectively.

Our cement business in Missouri, Continental Cement, operates a highly efficient, technologically advanced, integrated manufacturing and distribution system strategically located near Hannibal, Missouri, 100 miles north of St. Louis along the Mississippi River. Continental Cement utilizes an on-site solid and liquid waste fuel processing facility, which can reduce our fuel costs at that facility by up to 50%. The Continental Cement plant is covered by Hazardous Waste Combuster Maximum Achievable Control Technology Standards regulations (“HWC-MACT”), rather than the Environmental Protection Agency’s (“EPA”) National Emission Standards for Hazardous Air Pollutants (“NESHAP”), due to its waste fuel processing capabilities. We believe the facility is well positioned to comply with any potential regulatory changes during the foreseeable future.

West Region . The West region encompasses our integrated aggregates, ready-mixed concrete, asphalt paving mix, construction and other operations in Texas, Utah, Colorado, Idaho and Wyoming. As of December 28, 2013, within the region, we controlled approximately 0.4 billion tons of proven and probable aggregates reserves and $257.0 million of hard assets. During the years ended December 28, 2013 and December 29, 2012, approximately 47% and 52%, respectively, of our revenue was generated in the West region. Approximately 43% and 36% of the West region’s revenue was generated by residential and non-residential construction and the remaining approximately 57% and 64% was derived from public infrastructure spending in the years ended December 28, 2013 and December 29, 2012, respectively.

East Region . The East region encompasses our integrated aggregates, asphalt paving mix, construction and other operations in Kentucky, Tennessee and Virginia. As of December 28, 2013, within the region, we controlled approximately 0.4 billion tons of proven and probable aggregates reserves and $144.1 million of hard assets. During the years ended December 28, 2013 and December 29, 2012, approximately 18% and 15%, respectively, of our revenue was generated in the East region. Approximately 92% and 73% of the East region’s revenue was derived from public infrastructure spending, and the remaining 8% and 27% was generated by residential and non-residential construction in the years ended December 28, 2013 and December 29, 2012, respectively.

Acquisition History

The following table lists acquisitions completed since August 2009:

 

Company

  

Date of Acquisition

  

Region

Hamm (predecessor)

   August 25, 2009    Central

Hinkle Contracting Company

   February 1, 2010    East

Cornejo

   April 16, 2010    Central

Elmo Greer & Sons, LLC

   April 20, 2010    East

Continental Cement

   May 27, 2010    Central

Harshman Construction L.L.C. and Harshman Farms, Inc.

   June 15, 2010    Central

South Central Kentucky Limestone, LLC

   July 23, 2010    East

Harper Contracting

   August 2, 2010    West

Kilgore Pavement Maintenance, LLC and Kilgore Properties, LLC

   August 2, 2010    West

Con-Agg of MO, L.L.C.

   September 15, 2010    Central

Altaview Concrete

   September 15, 2010    West

EnerCrest Products, Inc.

   September 28, 2010    West

 

4


Company

  

Date of Acquisition

  

Region

RK Hall

   November 30, 2010    West

SCS Materials, L.P.

   November 30, 2010    West

Triple C Concrete, Inc.

   January 14, 2011    West

Elam Construction, Inc.

   March 31, 2011    West

Bourbon Limestone Company

   May 27, 2011    East

Fischer Quarries, L.L.C.

   May 27, 2011    Central

B&B

   June 8, 2011    West

Grand Junction Pipe, Inc.

   June 10, 2011    West

Industrial Asphalt

   August 2, 2011    West

Ramming Paving

   October 28, 2011    West

Norris

   February 29, 2012    Central

Kay & Kay

   October 5, 2012    East

Sandco

   November 30, 2012    West

Lafarge

   April 1, 2013    Central

Westroc

   April 1, 2013    West

Alleyton

   January 17, 2014    West

Our End Markets

Residential Construction. Residential construction includes single family houses and multi-family units such as apartments and condominiums. Demand for residential construction is influenced by employment prospects, new household formation and mortgage interest rates. In recent years, foreclosures have resulted in an oversupply of available houses, which has dampened the demand for new residential construction in many markets in the United States. However, employment prospects are improving, foreclosure rates have stabilized and demand has begun to grow in certain markets over the past several months.

Non-Residential Construction . Non-residential construction encompasses all privately financed construction other than residential structures. Demand for non-residential construction is driven by population and economic growth. Population growth spurs demand for stores, shopping centers and restaurants. Economic growth creates demand for projects such as hotels, office buildings, warehouses and factories. The supply of non-residential construction projects is affected by interest rates and the availability of credit to finance these projects.

Public Infrastructure Construction . Public infrastructure construction includes spending by federal, state and local governments for highways, bridges, airports, schools, public buildings and other public infrastructure construction projects. Public infrastructure spending has historically been more stable than private sector construction. We believe that public infrastructure spending is less sensitive to interest rate changes and economic cycles and often is supported by multi-year federal and state legislation and programs. A significant portion of our revenue is derived from public infrastructure construction projects. As a result, the supply of federal and state funding for public infrastructure highway construction significantly affects our public infrastructure end use business.

Historically, public infrastructure funding has been underpinned by a series of six-year federal highway authorization bills. Federal funds are allocated to the states, which are required to match a portion of the federal funds they receive. Federal highway spending uses funds predominantly from the Federal Highway Trust Fund, which derives its revenue from taxes on diesel fuel, gasoline and other user fees. The dependability of federal funding allows the state departments of transportation to plan for their long term highway construction and maintenance needs.

 

5


Moving Ahead for Progress in the 21st Century Act (“MAP-21”), a 27-month, approximately $105 billion transportation funding program that provides $40.4 billion and $41.0 billion for highway infrastructure investments in fiscal years 2013 and 2014, respectively, was enacted in July 2012 and took effect in October 2012. The spending levels are consistent with the preceding federal transportation funding program. Currently, there is uncertainty as to what will succeed MAP-21, which expires in September 2014. A new highway bill may be passed by the end of 2014, which would require continuing resolutions between September 2014 and the date a new bill is passed. We are not expecting a significant change in funding levels through the continuing resolutions or a new bill. However, given the nation’s aging infrastructure and considering longstanding historical spending trends, management expects U.S. infrastructure investment to grow over the long-term. Management believes that the Company is well-positioned to capitalize on any such increase in investment.

Our Industry

The U.S. heavy-side building materials industry is composed of four primary sectors: (i) aggregates; (ii) cement; (iii) ready-mixed concrete; and (iv) asphalt paving mix, each of which is widely used in most forms of construction activity. Participants in these sectors typically range from small, privately-held companies focused on a single product or market to multinational corporations that offer a wide array of construction materials and services. Competition is constrained in part by the distance materials can be transported efficiently, resulting in predominantly local or regional operations. Due to the lack of product differentiation, competition for all of our products is predominantly based on price and, to a lesser extent, quality of products and service. As a result, the prices we charge our customers are not likely to be materially different from the prices charged by other producers in the same markets. Accordingly, our profitability is generally dependent on the level of demand for our products and our ability to control operating costs.

Transportation infrastructure projects, driven by both state and federal funding programs, represent a significant share of the U.S. heavy-side building materials market. In addition to federal funding under MAP-21, highway construction and maintenance funding is also available through state, county and local agencies. Our five largest states by revenue (Texas, Kansas, Kentucky, Missouri and Utah, which represented approximately 25%, 20%, 17%, 12% and 11%, respectively, of our total revenue for the year ended December 28, 2013) each have funds whose revenue sources are constitutionally protected and may only be spent on transportation projects:

 

   

Texas Department of Transportation’s budget from 2012 to 2014 is $31.0 billion.

 

   

Kansas has a 10 year $8.2 billion highway bill that was passed in May 2010.

 

   

Kentucky’s highway program has anticipated 2013-2018 funding of $5.7 billion.

 

   

Missouri has an estimated $0.7 billion in annual construction funding committed to essential road and bridge programs through 2017.

 

   

Utah’s transportation investment fund had $3.5 billion committed through 2018.

Demand for our products is observed to have low elasticity in relation to prices. We believe this is partially explained by the absence of competitive replacement products and relatively low contribution of our products to construction costs. We do not believe that increases in our products’ prices are likely to affect the decision to undertake a construction project since these costs usually represent a small portion of total construction costs.

Construction Materials

Aggregates

Aggregates are key material components used in the production of ready-mixed concrete and asphalt paving mixes for the public infrastructure, highway, commercial and residential construction markets and are also widely used for various applications and products, such as road and building foundations, railroad ballast, erosion control, filtration, roofing granules and in solutions for snow and ice control. Generally extracted from the earth using surface or underground mining methods, aggregates are produced from natural deposits of various materials such as limestone, sand and gravel, granite and trap rock. Once extracted, processed and graded, aggregates are supplied directly to their end use or incorporated for further processing into construction materials, such as cement, ready-mixed concrete and asphalt paving mix.

According to the February 2013 U.S. Geological Survey, approximately 1.28 billion tons of crushed stone with a value of approximately $11.5 billion was produced in the United States in 2012, in line with 1.28 billion tons in 2011. Sand and gravel production was approximately 907 million tons in 2012 valued at approximately $6.25 billion, up from 894 million tons in 2011. The U.S. aggregate industry is highly fragmented relative to other building product markets, with numerous participants operating in localized markets and the top players controlling approximately 30% of the national market in 2012. In January 2013, the U.S. Geological Survey (“USGS”) reported that a total of 1,550 companies operating 4,000 quarries and 91 underground mines produced or sold crushed stone in 2012 in the United States.

 

6


Transportation cost is a major variable in determining aggregate pricing and marketing radius. The cost of transporting aggregate products from the plant to the market often equates to or exceeds the sale price of the product at the plant. As a result of the high transportation costs and the large quantities of bulk material that have to be shipped, finished products are typically marketed locally. High transportation costs are responsible for the wide dispersion of production sites. Where possible, construction material producers maintain operations adjacent to highly populated areas to reduce transportation costs and enhance margins.

We believe that the long-term growth of the market for aggregates is predominantly driven by growth in population, employment and households, which in turn affects transportation infrastructure spending and changes in population density. In recent years, the recession and subsequent slow recovery in the United States has led to a decrease in overall private construction activity. Despite the increase in federal stimulus spending, public infrastructure construction activity also declined over this period, albeit less than private construction markets. While short-term demand for aggregates fluctuates with economic cycles, the declines have historically been followed by strong recovery, with each peak establishing a new historical high.

A significant portion of annual demand for aggregates is derived from large public infrastructure and highway construction projects. According to the Montana Contractors’ Association, approximately 38,000 tons of aggregate are required to construct a one mile stretch of a typical four-lane interstate highway. Highways located in markets with significant seasonal temperature variances are particularly vulnerable to freeze-thaw conditions that exert excessive stress on pavement and lead to more rapid surface degradation. Surface maintenance repairs, as well as general highway construction, occur in the warmer months, resulting in a majority of aggregates production and sales in the eight months from April through November in most states.

Cement

Portland cement, an industry term for the common cement in general use around the world, is made from a combination of limestone, shale, clay, silica and iron ore. It is a fundamental building material consumed in several stages throughout the construction cycle of residential, non-residential and public infrastructure projects. It is a binding agent that, when mixed with sand or aggregates and water, produces either ready-mixed concrete or mortar and is an important component of other essential building materials. Cement is sold either in bulk or in bags as branded products, depending on its final user. Few construction projects can take place without utilizing Portland cement somewhere in the design, making it a key ingredient used in the construction industry. The majority of all cement shipments are sent to ready-mixed concrete operators. The remaining shipments are directed to manufacturers of concrete related products such as block and precast.

The principal raw materials in cement are a blend of approximately 80% limestone and approximately 5% shale, with the remaining raw materials being clay and iron ore. Generally, the limestone and shale are mined from quarries located on site with the production plant. These core ingredients are blended and crushed into a fine grind and then preheated and ultimately introduced into a kiln heated to about 3,000°F. Under this extreme heat, a chemical transformation occurs uniting the elements to form a new substance with new physical and chemical characteristics. This new substance is called clinker and it is formed into pieces about the size of marbles. The clinker is then cooled and later ground into a fine powder that then is classified as Portland cement.

Cement production in the United States is distributed among 98 production facilities located across 35 states. It is a capital-intensive business with variable costs dominated by raw materials and energy required to fuel the kiln. Building new plants is challenging given the extensive permitting that is required and significant costs. We believe new plant construction costs in the United States to be approximately $250-300 per ton, not including costs for property or securing raw materials and the required distribution network. Assuming construction costs of $275 per ton, a 1.25 million ton facility, comparable to the Continental Cement plant’s potential annual capacity, would cost approximately $343.8 million to construct.

As reported by the PCA in the 2013 North American Cement Industry Annual Yearbook, consumption is down significantly from the industry peak of 141 million tons in 2005 to 86 million tons in 2012 because of the decline in U.S. construction sector activity. Domestic cement consumption has at times outpaced domestic production capacity with the shortfall being supplied with imports, primarily from China, Canada, Greece, Mexico and South Korea. The PCA reports that cement imports have declined since their peak of 39 million tons in 2006 to 8 million tons in 2012, in a manner indicative of the industry’s general response to the current demand downturn. In addition to the reduction in imports, U.S. capacity utilization declined from 95% in 2006 to 66% in 2012 according to the PCA. Continental Cement operated above the industry mean at 78% capacity utilization in 2013 as its markets did not suffer the pronounced demand declines seen in states like Florida, California and Arizona. Demand is seasonal in nature with nearly two-thirds of U.S. consumption occurring between May and October, coinciding with end-market construction activity.

NESHAP is due to come into effect in 2015. On December 20, 2012, the EPA signed the final NESHAP rule, which was less stringent than previous drafts. The PCA had estimated based on the draft rule that 18 plants could be forced to close due to the inability to meet NESHAP standards or because the compliance investment required may not be justified on a financial basis. Continental Cement’s plant utilizes alternative fuel (hazardous and non-hazardous) as well as coal and petroleum coke and, as a result, is subject to HWC-MACT standards, rather than NESHAP. We expect HWC-MACT standards to generally conform to NESHAP, for which we are mostly in compliance, ahead of the effective date of the HWC-MACT standards. Any additional costs to comply with the HWC-MACT standards are not expected to be material.

 

7


Ready-Mixed Concrete

Ready-mixed concrete is one of the most versatile and widely used materials in construction today. Its flexible recipe characteristics allow for an end product that can assume almost any color, shape, texture and strength to meet the many requirements of end users that range from bridges, foundations, skyscrapers, pavements, dams, houses, parking garages, water treatment facilities, airports, tunnels, power plants, hospitals and schools. The versatility of ready-mixed concrete gives engineers significant flexibility when designing these projects.

Cement, coarse aggregate, fine aggregate, water and admixtures are the primary ingredients that constitute a basic ready-mixed concrete. The cement and water are combined and a chemical reaction is produced called hydration. This paste or binder represents between 15 to 20% of the volume of the mix that coats each particle of aggregate and serves as the agent that binds the aggregates together, according to the National Ready Mixed Concrete Association (the “NRMCA”). The aggregates represent 60 to 75% of the mix by volume, with a small portion of volume (5 to 8%) consisting of entrapped air that was generated by using air entraining admixtures. Once fully hydrated, the workable concrete will then harden and take on the shape of the form in which it was placed.

The quality of a concrete mix is generally determined by the weight ratio of water to cement. Higher quality concrete is produced by lowering the water-cement ratio as much as possible without sacrificing the workability of the fresh concrete. Specialty admixtures such as high range water reducers can aid in achieving this condition without sacrificing quality.

Other materials commonly used in the production of ready-mixed concrete include fly-ash, a waste by-product from coal burning power plants, silica fume, a waste by-product generated from the manufacture of silicon and ferro-silicon metals, and ground granulated blast furnace slag, a by-product of the iron and steel manufacturing process. All of these products have cemetitious properties that enhance the strength, durability and permeability of the concrete. These materials are available directly from the producer or via specialist distributors who intermediate between the source producers and the ready-mixed concrete user.

Given the high weight-to-value ratio, delivery of ready-mixed concrete is typically limited to a one-hour haul from a production plant location and is further limited by a 90 minute window in which newly-mixed concrete must be poured to maintain quality and performance. As a result of the transportation constraints, the ready-mixed concrete market is highly localized, with an estimated 5,500 ready-mixed concrete plants in the United States according to the NRMCA. According to the NRMCA, 290 million cubic yards of ready-mixed concrete was produced in 2012, which is a 9% increase from the 266 million cubic yards produced in 2011 but a 36% decrease from the industry peak of 458 million cubic yards in 2005.

Asphalt Paving Mix

Asphalt paving mix is the most common roadway material used today. It is a versatile and essential building material that has been used to surface 90% of the more than 2.5 million miles of paved roadways in the United States, according to National Geographic News.

Typically, asphalt paving mix is placed in three distinct layers to create a flexible pavement structure. These layers consist of a base course, an intermediate or binder course, and a surface or wearing course. These layers vary in thicknesses of three to six inches for base mix, two to four inches for intermediate mix and one to two inches for surface mix.

According to the National Asphalt Pavement Association, the components of asphalt paving mix by weight are approximately 95% aggregates and 5% asphalt cement, a petroleum based product that serves as the binder. The ingredients are then metered, mixed and heated to a temperature in excess of 300° F before being placed in a truck and delivered to the jobsite for final placement.

Asphalt pavement is generally 100% recyclable and reusable and is the most reused and recycled pavement material in the United States. Reclaimed asphalt pavement can be incorporated into new pavement at replacement rates in excess of 30% depending upon the mix and the application of the product. We actively engage in the recycling of previously used asphalt pavement and concrete. This material is crushed and repurposed in the construction cycle. Approximately 68 million tons of used asphalt is recycled annually by the industry.

The use of warm mix asphalt (“WMA”) or “green” asphalt is gaining popularity. The immediate benefit to producing WMA is the reduction in energy consumption required by burning fuels to heat traditional hot mix asphalt (“HMA”) to temperatures in excess of 300°F at the production plant. These high production temperatures are needed to allow the asphalt binder to become viscous enough to completely coat the aggregate in the HMA, have good workability during laying and compaction, and durability during traffic exposure. According to the Federal Highway Administration, WMA can reduce the temperature by 50 to 70°F, resulting in lower emissions, fumes and odors generated at the plant and the paving site.

 

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According to the National Asphalt Pavement Association, there are approximately 4,000 asphalt paving mix plants in the United States. As reported by the National Asphalt Pavement Association, an estimated 360 million tons of asphalt paving mix was produced in 2012 which was broadly in line with the estimated 366 million tons produced in 2011.

Our Operations

We operate our construction materials and construction services businesses through local operations and marketing teams, which work closely with our end customers to deliver the products and services that meet each customer’s specific needs for a project. We believe that this strong local presence gives us a competitive advantage by keeping our costs low and allowing us to obtain a unique understanding for the evolving needs of our customers.

We have construction materials operations in 16 states across the Central, West and East regions. Our business in each region is vertically-integrated in the aggregates, asphalt paving mix, and paving and related construction services businesses. In addition, we manufacture cement, produce ready-mixed concrete, and operate a municipal waste landfill and one construction and demolition debris landfill in our Central region, we manufacture ready-mixed concrete in our West region and we have liquid asphalt terminal operations in our East region.

As a result of our vertically-integrated operations, our end products are generally sold downstream to contractors and shipped directly to the job site. In the year ended December 28, 2013, approximately 73% of our aggregates production was sold directly to outside customers with the remaining amount being further processed by us and sold as a downstream product.

Additionally, approximately 83% of our asphalt paving mix products was installed by our paving and related construction services businesses in the year ended December 28, 2013. We charge a market price and competitive margin at each stage of the production process in order to optimize profitability across our operations.

Production Value Chain

Customer

 

LOGO

Construction Materials

We are a leading provider of construction materials in the markets we serve. Our construction materials operations are composed of aggregates production, including, crushed stone and construction sand and gravel, ready-mixed concrete, hot mix asphalt production and the production of cement.

Our Aggregates Operations

Aggregates Products

We mine limestone, gravel, and other natural resources from 78 crushed stone quarries and 46 sand and gravel deposits throughout the United States. Aggregates are produced mainly from blasting hard rock from quarries and then crushing and screening it to various sizes to meet our customers’ needs. The production of aggregates also involves the extraction of sand and gravel, which requires less crushing, but still requires screening for different sizes. Aggregate production utilizes capital intensive heavy equipment which includes the use of loaders, large haul trucks, crushers, screens and other heavy equipment at quarries.

Once extracted, the minerals are processed and/or crushed on site into crushed stone, concrete and masonry sand, specialized sand, pulverized lime or agricultural lime. The minerals are processed to meet customer specifications or to meet industry standard sizes. Crushed stone is used primarily in ready-mixed concrete, asphalt paving mix, and the construction of road base for highways.

 

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Transportation costs are a major variable in determining aggregate pricing and marketing radius. The cost of transporting aggregate products from the plant to the market often equates to or exceeds the sale price of the products at the plant. As a result of high transportation costs and the large quantities of bulk material that have to be shipped, finished products are typically marketed locally. High transportation costs are responsible for the wide dispersion of production sites. Where possible, construction material producers maintain operations adjacent to highly populated areas to reduce transportation costs and enhance margins.

However, more recently, rising land values combined with local environmental concerns are forcing production sites to move further away from the end-use locations. Our extensive network of quarries, plants and facilities, located throughout our three regions enables us to have a nearby operation to meet the needs of customers in each of our markets.

Aggregates Markets

The cost of transportation from each quarry and the proximity of competitors are key factors that determine the effective market area for each quarry. Each quarry location is unique with regards to demand for each product, proximity to competition and distribution network.

Aggregates Reserves

Our current estimate of 1.6 billion tons of proven and probable reserves of recoverable stone, and sand and gravel of suitable quality for economic extraction is based on drilling and studies by geologists and engineers, recognizing reasonable economic and operating restraints as to maximum depth of extraction and permit or other restrictions.

Reported proven and probable reserves include only quantities that are owned in fee or under lease, and for which all required zoning and permitting have been obtained. Of the 1.6 billion tons of proven and probable aggregates reserves, 1.0 billion, or 63%, are located on owned land and 0.6 billion are located on leased land.

Aggregates Sales and Marketing

Each of our aggregates operations is responsible for the sale and marketing of its aggregates products. Approximately 73% of our aggregates production is sold directly to outside customers and the remaining amount is further processed by us and sold as a downstream product. Even though aggregates are a commodity product, we work to optimize pricing depending on the site location, availability of particular product, customer type, project type and haul cost. We sell aggregates to internal downstream operations at market prices.

Aggregates Competition

The U.S. aggregate industry is highly fragmented with numerous participants operating in localized markets. The January 2013 USGS reported that a total of 1,550 companies operating 4,000 quarries and 91 underground mines produced or sold crushed stone in 2012 in the United States. This fragmentation is a result of the cost of transporting aggregates, which typically limits producers to a market area within approximately 40 miles of their production facilities.

The primary national players are large vertically integrated companies, including Vulcan Materials Company, Martin Marietta Materials, Inc., CRH plc, Heidelberg, Lafarge and Cemex, S.A.B. de C.V. with a combined estimated market share of approximately 30%.

Competitors by region include:

Central—Martin Marietta, CRH plc, Holcim and various local suppliers.

West—CRH plc, Heidelberg Cement plc, Martin Marietta and various local suppliers.

East—CRH plc, Heidelberg Cement plc, Vulcan and various local suppliers.

We believe we have a strong competitive advantage in aggregates through our well located reserves in key markets, high quality reserves and our logistic networks. We further share and implement best practices relating to strategy, sales and marketing, production, safety, and environmental and land management. As a result of our vertical integration and local market knowledge, we have a strong understanding of the needs of our aggregates customers. Finally, our companies have a reputation for responsible environmental stewardship and land restoration, which assists us in obtaining new permits and new reserves.

 

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Our Cement Operations

Cement Products

We operate a highly-efficient, technologically-advanced integrated cement manufacturing and distribution system located near Hannibal, Missouri, 100 miles north of St. Louis along the Mississippi River. We also operate an on-site waste fuel processing facility, which can reduce fuel costs for the plant by up to 50%. Our cement plant is one of only 12 with hazardous waste fuel facilities permitted and operating out of 98 total cement plants in the United States. Our cement plant’s potential capacity is 1.25 million tons per annum and is in substantial compliance with the 2013 NESHAP pollution limits for cement plants, in advance of the effective date.

Cement Markets

Cement is a product that is costly to transport over land. Consequently, the radius within which a typical cement plant is competitive extends for no more than 150 miles. Cement is distributed to local customers primarily by truck from our plant and distribution terminals in St. Louis, Missouri and Bettendorf, Iowa. We also transport cement by inland barges on the Mississippi River to our storage and distribution terminals. Continental Cement’s markets include eastern Missouri, southeastern Iowa and central/northwestern Illinois.

Cement Sales and Marketing

Continental Cement’s customers are ready-mixed concrete and concrete products producers and contractors within its markets. Sales are made on the basis of competitive prices in each market and, as is customary in the industry, we do not typically enter into long-term sales contracts.

Cement Competition

Construction of cement production facilities is highly capital intensive and requires long lead times to complete engineering design, obtain regulatory permits, acquire equipment and construct a plant. Most U.S. cement producers are owned by large foreign companies operating in multiple international markets. Continental Cement’s largest competitors are Holcim (US) Inc., Lafarge North America Inc., Buzzi Unicem USA, Inc. and Eagle Materials Inc. Competitive factors include price, reliability of deliveries, location, quality of cement and support services. With a new cement plant, on-site raw material aggregate supply, a network of cement terminals, and longstanding customer relationships, we believe we are well positioned to serve our customers vis-à-vis our competitors.

Our Ready-mixed Concrete Operations

Ready-mixed Concrete Products

We believe our Central and West regions are leaders in the supply of ready-mixed concrete in their respective markets. Our Central region supplies concrete to the Wichita, Kansas and Columbia, Missouri markets and surrounding areas. The West region has ready-mixed concrete operations in the Salt Lake Valley, Utah, Twin Falls, Idaho and Grand Junction, Colorado markets. We produce ready-mixed concrete by blending aggregates, cement, chemical admixtures in various ratios and water at our concrete production plants and placing the resulting product in ready-mixed concrete trucks where it is then delivered to our customers.

Our aggregates business serves as the primary source of the raw materials for our concrete production, functioning essentially as a supplier to our ready-mixed concrete operations. Different types of concrete include lightweight concrete, high performance concrete, self compacting/consolidating concrete and architectural concrete and are used in a variety of activities ranging from building construction to highway paving.

We operate 16 ready-mixed concrete plants and 141 concrete delivery trucks in the Central region. We also operate 30 ready-mixed concrete plants and 319 concrete delivery trucks in the West region, including the assets obtained in the January 17, 2014 acquisition of Alleyton.

Ready-mixed Concrete Competition

Ready-mixed concrete production requires relatively small amounts of capital to build a concrete batching plant and acquire delivery trucks. As a result, in each local market, we face competition from numerous small producers, as well as other large vertically integrated companies with facilities in multiple markets. There are approximately 5,500 ready-mixed concrete plants in the United States, and in 2012 the United States ready-mixed industry produced approximately 291 million cubic yards of ready-mixed concrete according to the NRMCA.

Our ready-mixed concrete operations compete with CRH plc in Utah and Colorado and various other privately owned competitors in other parts of the Central and West regions.

 

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Competition among ready-mixed concrete suppliers is generally based on product characteristics, delivery times, customer service and price. Product characteristics such as tensile strength, resistance to pressure, durability, set times, ease of placing, aesthetics, workability under various weather and construction conditions as well as environmental effect are the main criteria that our customers consider for selecting their product. Our quality assurance program produces results in excess of design strengths while optimizing material costs. Additionally, we believe our strategic network of locations and superior customer service gives us a competitive advantage relative to other producers.

Our Asphalt Paving Mix Operations

Asphalt Paving Mix Products

Our asphalt paving mix products are produced by first heating carefully measured amounts of aggregates at high temperatures to remove the moisture from the materials in an asphalt paving mix plant. As the aggregates are heated, liquid asphalt is then introduced to coat the aggregates. Depending on the specifications of a particular mix, recycled asphalt may be added to the mix, which lowers the production costs. The aggregates used for our production of these products are generally supplied from our quarries or sand and gravel plants. The ingredients are metered, mixed and brought up to a temperature in excess of 300°F before being placed in a truck and delivered to the jobsite for final placement.

We operate five asphalt paving mix plants in the Central region, 22 plants in the West region and 15 plants in the East region. 95% of our plants can utilize recycled asphalt pavement.

Asphalt Paving Mix Markets

Asphalt paving mix is generally applied at high temperatures. Prolonged exposure to air causes the mix to lose temperature and harden. Therefore, delivery is typically within close proximity to the asphalt paving mix plant. Local market demand, proximity to competition, transportation costs and supply of aggregates and liquid asphalt vary widely from market to market. Most of our hot mix asphalt operations use a combination of company-owned and hired haulers to deliver materials to job sites.

Asphalt Paving Mix Sales and Marketing

Approximately 83% of the asphalt paving mix we produce is installed by our own paving crews. The rest is sold on a per ton basis to road contractors for the construction of roads, driveways and parking lots, as well as directly to state departments of transportation and local authorities.

Asphalt Paving Mix Competition

According to the National Asphalt Pavement Association, there are approximately 4,000 asphalt paving mix plants in the United States and an estimated 360 million tons of asphalt paving mix was produced in 2012. Our asphalt paving mix operations compete with CRH plc and other local suppliers in each of our three regions. Based on availability of internal aggregate supply, quality, operating efficiencies, and location advantages, we believe we are well-positioned vis-à-vis our competitors.

Asphalt Paving and Related Construction Services

As part of our vertical integration strategy, we provide asphalt and concrete paving and related construction services to both the public infrastructure and private sectors as either a prime or sub-contractor. These services complement our heavy construction materials business by providing a reliable downstream outlet, in addition to our external distribution channels.

Our asphalt paving and construction services businesses bid on both public infrastructure and private construction projects in their respective local markets. We only provide construction services operations as a complement to our heavy construction materials operation, which we believe is a major competitive strength. Factors affecting competitiveness in this business segment include price, estimating abilities, knowledge of local markets and conditions, project management, financial strength, reputation for quality and the availability of machinery and equipment.

Our contracts with our customers are primarily “fixed unit price” or “fixed price.” Under fixed unit price contracts, we provide materials or services at fixed unit prices (for example, dollars per ton of asphalt placed). While the fixed unit price contract shifts the risk of estimating the quantity of units required for a particular project to the customer, any increase in our unit cost over the expected unit cost in the bid, whether due to inflation, inefficiency, errors in our estimates or other factors, is borne by us unless otherwise provided in the contract. Most of our contracts contain escalators for increases in liquid asphalt prices.

 

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Customers

Our business is not dependent on any single customer or a few customers. Therefore, the loss of any single or particular small number of customers would not have a material adverse effect on any individual respective market in which we operate or on us as a whole. No individual customer accounted for more than 10% of our 2013 revenue.

Seasonality

Use and consumption of our products fluctuate due to seasonality. Nearly all of the products used by us, and by our customers, in the public infrastructure or private construction industry are used outdoors. Our highway operations and production and distribution facilities are also located outdoors. Therefore, seasonal changes and other weather-related conditions, in particular extended rainy and cold weather in the spring and fall and major weather events, such as hurricanes, tornadoes, tropical storms and heavy snows, can adversely affect our business and operations through a decline in both the use of our products and demand for our services. In addition, the construction materials business production and shipment levels follow activity in the construction industry, which typically occurs in the spring, summer and fall. Warmer and drier weather during the second and third quarters of our fiscal year typically result in higher activity and revenue levels during those quarters. The first quarter of our fiscal year has typically lower levels of activity due to weather conditions.

Backlog

Our products are generally delivered upon receipt of orders or requests from customers, or shortly thereafter. Accordingly, the backlog associated with product sales is converted into revenue within a relatively short period of time. Inventory for products is generally maintained in sufficient quantities to meet rapid delivery requirements of customers.

Our construction services backlog represents our estimate of the revenue that will be realized under the portion of the construction contracts remaining to be performed. We generally include a project in our contract backlog at the time a contract is awarded and funding is in place. Many of our construction services are awarded and completed within one year and, therefore, may not be reflected in our beginning or ending contract backlog. Substantially all of the contracts in our contract backlog may be canceled or modified at the customer’s discretion. However, we have not been materially adversely affected by contract cancellations or modifications in the past.

As a vertically-integrated business, approximately 27% of our aggregates production is further processed and sold as a downstream product, such as asphalt paving mix or ready-mixed concrete, or used in our construction services business. Approximately 83% of the asphalt paving mix we produce is installed by our own paving crews. A period over period increase or decrease of backlog does not necessarily result in an improvement or a deterioration of our business. Our backlog includes only those products and projects for which we have obtained a purchase order or a signed contract with the customer and does not include products purchased and sold or services awarded and provided within the period. The following table sets forth, by product, our backlog as of the indicated dates:

 

     December 28,
2013
     December 29,
2012
     December 31,
2011
 
(in thousands)                     

Aggregate (in tons)

     5,153         3,881         2,905   

Ready-mixed concrete (in cubic yards)

     138         155         259   

Asphalt (in tons)

     2,387         2,314         2,267   

Construction services

   $ 359,263       $ 288,673       $ 329,802   

Intellectual Property

We do not own or have a license or other rights under any patents that are material to any of our businesses.

Employees

As of December 28, 2013, we had approximately 3,300 employees of whom approximately 75.0% were hourly workers and the remainder were full time salaried employees. Because of the seasonal nature of our industry, many of our hourly and certain of our full time employees are subject to seasonal layoffs. The scope of layoffs varies greatly from season to season as they are predominantly a function of the type of projects in process and the weather during the late fall through early spring.

Approximately 6.8% of our hourly employees are union members and approximately 0.4% of our full time salaried employees are union members. We believe we enjoy a satisfactory working relationship with our employees and their unions.

 

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Environmental and Government Regulation

Our operations are subject to federal, state and local laws and regulations relating to the environment and to health and safety, including noise, discharges to air and water, waste management including the management of hazardous waste used as a fuel substitute at our Hannibal, Missouri cement kiln, remediation of contaminated sites, mine reclamation, operation of landfills, dust control and zoning and permitting. While we believe our operations are in substantial compliance with applicable requirements, there can be no assurance that compliance costs will not be significant.

In addition, our operations are subject to environmental, zoning and land use regulations and require numerous governmental approvals and permits. Environmental operating permits are subject to modification, renewal and revocation and can require us to make capital, maintenance and operational expenditures to comply with the applicable requirements. Although not expected to be a significant impediment, stricter laws and regulations, or more stringent interpretations of existing laws or regulations, may impose new liabilities on us, reduce operation hours, require additional investment by us in pollution control equipment or impede our opening new or expanding existing plants or facilities. We regularly monitor and review our operations, procedures and policies for compliance with existing environmental laws and regulations, changes in interpretations of existing laws and enforcement policies, new laws that are adopted, and new requirements that we anticipate will be adopted that could affect our operations.

For our operations, we are subject to zoning requirements and permit limitations. Applicable permits may include conditional use permits to allow us to operate in certain areas absent zoning approval and operational permits governing particulate matter and storm water management and control. In addition, we are often required to obtain bonding for future reclamation costs, most commonly specific to restorative grading and seeding of disturbed surface areas.

Multiple permits are required to operate our cement plant. Like others in the cement business, we expend substantial amounts to comply with these environmental laws and regulations and permit limitations, which include amounts for pollution control equipment required to monitor and regulate air emissions. Since many of these requirements are likely to be affected by future legislation or rule making by government agencies, and are therefore not quantifiable, it is not possible to accurately predict the aggregate future costs of compliance and their effect on our future results of operations, financial condition or liquidity.

At most of our quarries, we incur reclamation obligations as part of our mining activities. Reclamation methods and requirements can vary depending on the individual site and state regulations. Generally, we are required to grade the mined properties to a certain slope and seed the property to prevent erosion. We record a mining reclamation liability in our consolidated financial statements to reflect the estimated fair value of the cost to reclaim each property including active and closed sites.

Our operations in Kansas include one municipal waste landfill and two construction and demolition debris landfills, one of which has been closed. Among other environmental, health and safety requirements, we are subject to obligations to appropriately close those landfills at the end of their useful lives and provide for appropriate post-closure care. Asset retirement obligations relating to these landfills are recorded in our consolidated financial statements.

Health and Safety

Our facilities and operations are subject to a variety of worker health and safety requirements, particularly those administered by the federal Mine Safety and Health Administration and the Occupational Safety and Health Administration, which are likely to become stricter in the future. Throughout our organization, we strive for a zero-incident safety culture and full compliance with safety regulations. Failure to comply with these requirements can result in fines and penalties and claims for personal injury and property damage. These requirements may also result in increased operating and capital costs in the future. We believe we are in substantial compliance with such requirements, but we cannot guarantee that violations will not occur, and any violations could result in additional costs.

At Summit Materials and our operating companies, worker safety and health matters are overseen by our corporate Risk Management and Safety department as well as company level safety managers. We provide leadership and support, comprehensive training, and other tools designed to accomplish health and safety goals, reduce risk, eliminate hazards, and ultimately make our work places safer.

We believe that the continuous support and leadership of our management team, along with the commitment and desire of all our employees to eliminate injuries and other incidents, will aid our journey towards our goal of zero incidents.

Insurance

Our insurance program is structured using multiple “A” rated insurance carriers, and a variety of deductible amounts. In particular, our workers compensation and auto liability policies are subject to a $250,000 per occurrence deductible, and the general liability policy has a $100,000 deductible. Losses within these deductibles are accrued for using projections based on past loss history.

We also maintain $50.0 million in combined umbrella insurance. Other policies have smaller deductibles and include property, contractors equipment, contractors pollution and professional, directors and officers, employment practices liability and fiduciary and crime. We also have a separate marine insurance policy for our Continental Cement business.

 

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ITEM 1A. RISK FACTORS

Risks Related to Our Business and Our Industry

Industry Risks

Our business depends on activity within the construction industry and the strength of the local economies in which we operate.

We sell most of our building materials and provide all of our highway construction and paving services to the construction industry, so our results depend on the strength of the construction industry. Demand for our products, particularly in the residential and non-residential construction markets, could remain weak, and decline, if companies and consumers cannot obtain credit for construction projects or if the slow pace of economic activity results in delays or cancellations of capital projects. In addition, federal and state budget issues may continue to hurt the funding available for infrastructure spending, particularly highway construction, which constitutes a significant portion of our business.

Our earnings depend on the strength of the local economies in which we operate because of the high cost to transport our products relative to their price. In recent years, many states reduced their construction spending due to budget shortfalls resulting from lower tax revenue as well as uncertainty relating to long-term federal highway funding. As a result, there has been a reduction in many states’ investment in infrastructure spending. If economic and construction activity diminish in one or more areas, particularly in our top revenue-generating markets of Texas, Kansas, Kentucky, Missouri and Utah, our results of operations and liquidity may be materially adversely affected and there is no assurance that reduced levels of construction activity will not continue to affect our business in the future.

Our business is cyclical and requires significant working capital to fund operations.

Our business is cyclical and requires that we maintain significant working capital to fund our operations. Our ability to generate sufficient cash flow depends on future performance, which will be subject to general economic conditions, industry cycles and financial, business and other factors affecting our operations, many of which are beyond our control. If we are unable to generate sufficient cash to operate our business and service our outstanding debt and other obligations, we may be required, among other things, to further reduce or delay planned capital or operating expenditures, sell assets or take other measures, including the restructuring of all or a portion of our debt, which may only be available, if at all, on unsatisfactory terms.

Weather can materially affect our business and we are subject to seasonality.

Nearly all of the products used by us, and by our customers, in the public infrastructure or private construction industry are used outdoors. In addition, our highway operations and production and distribution facilities are located outdoors. Therefore, seasonal changes and other weather-related conditions can adversely affect our business and operations through a decline in both the use of our products and demand for our services.

Adverse weather conditions such as extended rainy and cold weather in the spring and fall can reduce demand for our products by contractors and reduce sales or render our contracting operations less efficient. Occasionally, major weather events such as hurricanes, tornadoes, tropical storms and heavy snows with quick rainy melts adversely affect sales in the short term.

The construction materials business production and shipment levels follow activity in the construction industry, which typically occurs in the spring, summer and fall. Warmer and drier weather during the second and third quarters of our fiscal year typically result in higher activity and revenue levels during those quarters. The first quarter of our fiscal year has typically lower levels of activity due to the weather conditions. Our second quarter varies greatly with the spring rains and wide temperature variations. A cool wet spring increases drying time on projects, possibly delaying sales in the second quarter, while a warm dry spring may enable earlier project startup.

Our industry is capital intensive and portions of our business have significant fixed and semi-fixed costs. Therefore, our earnings are sensitive to changes in volume.

The property and machinery needed to produce our products can be very expensive. Therefore, we need to spend a substantial amount of capital to purchase and maintain the equipment necessary to operate our business. Although we believe that our current cash balance, along with our projected internal cash flows and our available financing resources, will be enough to give us the cash we need to support our currently anticipated operating and capital needs, if we are unable to generate sufficient cash to purchase and maintain the property and machinery necessary to operate our business, we may be required to reduce or delay planned capital expenditures or incur additional debt. In addition, given the level of fixed and semi-fixed costs within our business, particularly at our cement production facility, decreases in volumes can negatively affect our financial position, results of operations and liquidity.

 

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Within our local markets, we operate in a highly competitive industry.

The U.S. construction aggregates industry is highly fragmented with a large number of independent local producers in a number of our markets. Additionally, in most markets, we compete against large private and public infrastructure companies, some of which are also vertically-integrated. Therefore, there is intense competition in a number of the markets in which we operate. This significant competition could lead to lower prices, lower sales volumes and higher costs in some markets, negatively affecting our financial position, results of operations and liquidity.

Growth Risks

The success of our business depends, in part, on our ability to execute on our acquisition strategy, the successful integration of acquisitions and the retention of key employees of our acquired businesses.

A significant portion of our historical growth has occurred through acquisitions and we will likely enter into acquisitions in the future. We have evaluated and expect to continue to evaluate possible acquisition transactions on an ongoing basis. At any time we may be engaged in discussions or negotiations with respect to several possible acquisitions. From time to time we enter into letters of intent to allow us to conduct due diligence on a confidential basis. Currently, we are in preliminary discussions with several potential acquisition targets. There can be no assurance that we will enter into definitive agreements with respect to such transactions or that they will be completed. Our growth has placed, and will continue to place, significant demands on our management and operational and financial resources. Acquisitions involve risks that the businesses acquired will not perform in accordance with expectations and that business judgments concerning the value, strengths and weaknesses of businesses acquired will prove incorrect.

Our interest expense will increase in connection with acquisitions as a result of the assumption or incurrence of debt and contingent liabilities and to the extent we finance such acquisitions with draws on our senior secured revolving credit facility. We may become liable for certain liabilities of any acquired business, whether or not known to us. These risks could include, among others, tax liabilities, product liabilities, environmental liabilities and liabilities for employment practices, and they could be significant.

Acquisitions may require integration of the acquired companies’ sales and marketing, distribution, engineering, purchasing, finance and administrative organizations. We may not be able to integrate successfully any business we acquire or acquired into our existing business and any acquired businesses may not be profitable or as profitable as we had expected. The successful integration of our acquisitions may also require substantial attention from our senior management and the management of the acquired business, which could decrease the time that they have to service and attract customers and develop new products and services. In addition, we may not effectively utilize new equipment that we acquire through acquisitions or otherwise at utilization and rental rates consistent with that of our existing equipment. Furthermore, the complete integration of companies we acquire depends, to a certain extent, on the full implementation of our financial systems and policies. Moreover, because we may actively pursue a number of opportunities simultaneously, we may encounter unforeseen expenses, complications and delays, including difficulties in employing sufficient staff and maintaining operational and management oversight. Our inability to complete the integration of new businesses in a timely and orderly manner could increase costs and lower profits.

We cannot assure you that we will achieve synergies and cost savings in connection with acquisitions. In addition, many of the businesses that we have acquired and will acquire have unaudited financial statements that have been prepared by the management of such companies and have not been independently reviewed or audited. We cannot assure you that the financial statements of companies we have acquired or will acquire would not be materially different if such statements were audited. Finally, we cannot assure you that we will continue to acquire businesses at valuations consistent with our prior acquisitions or that we will complete future acquisitions at all. We cannot assure you that there will be attractive acquisition opportunities at reasonable prices, that financing will be available or that we can successfully integrate such acquired businesses into our existing operations. In addition, our results of operations from these acquisitions could in the future result in impairment charges for any of our intangible assets, including goodwill, or other long-lived assets, particularly if economic conditions materially negatively affect our results of operations, financial condition or liquidity.

Our long-term success is dependent upon securing and permitting aggregate reserves in strategically located areas. The inability to secure and permit such reserves could negatively affect our earnings in the future.

Construction aggregates are bulky and heavy and, therefore, difficult to transport efficiently. Because of the nature of the products, the freight costs can quickly surpass the production costs. Therefore, except for geographic regions that do not possess commercially viable deposits of aggregates and are served by rail, barge or ship, the markets for our products tend to be very localized around our quarry sites and are served by truck. New quarry sites often take a number of years to develop and our strategic planning and new site development must stay ahead of actual growth. Additionally, in a number of urban and suburban areas in which we operate, it is increasingly difficult to permit new sites or expand existing sites due to community resistance. Therefore, our future success is dependent, in part, on our ability to accurately forecast future areas of high growth in order to locate optimal facility sites and on our ability to either acquire existing quarries or secure operating and environmental permits to open new quarries. If we are unable to accurately forecast areas of future growth, acquire existing quarries or secure the necessary permits to open new quarries, our financial condition, results of operations and liquidity may be materially adversely affected.

 

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Economic Risks

Our business relies on private investment in infrastructure and a slower than expected recovery will adversely affect our results.

A significant portion of our sales are for projects with non-public owners. Construction spending is affected by developers’ ability to finance projects. The credit environment has negatively affected the U.S. economy and demand for our products in the recent past. Residential and non-residential construction could decline if companies and consumers are unable to finance construction projects or if the economic slowdown continues to cause delays or cancellations of capital projects. If housing starts and non-residential projects do not continue to rise steadily with the economic recovery as they normally do when recessions end, our construction materials and contracting services sales may decline further and our financial position, results of operations and liquidity may be materially adversely affected.

A decline in public infrastructure construction and reductions in governmental funding could adversely affect our operations and results.

A significant portion of our revenue is generated from publicly-funded construction projects. As a result, if publicly-funded construction continues to remain low due to reduced federal or state funding or otherwise, our results of operations and liquidity will be negatively affected.

In January 2011, the House passed a new rules package that repealed a transportation law dating back to 1998, which protected annual funding levels from amendments that could reduce such funding. This rule change subjects funding for highways to yearly appropriation reviews. The change in the funding mechanism increases the uncertainty of many state departments of transportation regarding funds for highway projects. This uncertainty could result in states being reluctant to undertake large multi-year highway projects which could, in turn, negatively affect our sales. MAP-21, the current federal funding program, expires in September 2014 and we are uncertain as to the size and term of the transportation funding program that will follow.

As a result of the foregoing and other factors, we cannot be assured of the existence, amount and timing of appropriations for spending on federal, state or local projects. The federal support for the cost of highway maintenance and construction is dependent on congressional action. In addition, each state funds its infrastructure spending from specially allocated amounts collected from various taxes, typically gasoline taxes and vehicle fees, along with voter-approved bond programs. Shortages in state tax revenues can reduce the amounts spent on state infrastructure projects, even below amounts awarded under legislative bills. Nearly all states are now experiencing state-level funding pressures caused by lower tax revenues and an inability to finance approved projects. Delays or cancellations of state infrastructure spending have in the past, and we anticipate in the immediate future will continue to negatively affect our results of operations and liquidity because a significant portion of our business is dependent on state infrastructure spending.

Environmental, health and safety laws and any changes to such laws may have a material adverse effect on our business and financial condition and results of operations.

Our operations are subject to a variety of federal, state and local laws and regulations relating to, among other things: (i) the release or discharge of materials into the environment; (ii) the management, use, processing, handling, storage, transport or disposal of hazardous materials, including the management of hazardous waste used as a fuel substitute at our cement kiln in Hannibal, Missouri; and (iii) the protection of public and employee health, safety and the environment. These laws and regulations expose us to liability for the environmental condition of our current or formerly owned or operated facilities, and may expose us to liability for the conduct of others or for our actions that complied with all applicable laws at the time these actions were taken. In particular, we may incur remediation costs and other related expenses because our facilities were constructed and operated before the adoption of current environmental laws and the institution of compliance practices and because certain of our processes are regulated. These laws and regulations may also expose us to liability for claims of personal injury or property or natural resource damage related to alleged exposure to regulated materials. The existence of contamination at properties we own, lease or operate could also result in increased operational costs or restrictions on our ability to use those properties as intended, including for purposes of mining.

Despite our compliance efforts, there is the inherent risk of liability in the operation of our business, especially from an environmental standpoint. These potential liabilities could have an adverse effect on our operations and profitability. In many instances, we must have government approvals and certificates, permits or licenses in order to conduct our business, which often require us to make significant capital and maintenance expenditures to comply with zoning and environmental laws and regulations. Our failure to maintain required certificates, permits or licenses or to comply with applicable governmental requirements could result in substantial fines or possible revocation of our authority to conduct some of our operations. Governmental requirements that affect our operations also include those relating to air quality, waste management, water quality, mine reclamation, the operation of municipal waste and construction and demolition debris landfills, remediation of contaminated sites and worker health and safety. These requirements are complex and subject to frequent change. They impose strict liability in some cases without regard to

 

17


negligence or fault and expose us to liability for the conduct of, or conditions caused by, others, or for our acts that may otherwise have complied with all applicable requirements when we performed them. Stricter laws and regulations, more stringent interpretations of existing laws or regulations or the future discovery of environmental conditions may impose new liabilities on us, reduce operating hours, require additional investment by us in pollution control equipment or impede our opening new or expanding existing plants or facilities. The cost of complying with such laws may have a material adverse effect on our business, financial condition and results of operations.

Financial Risks

Difficult and volatile conditions in the credit markets could affect our financial position, results of operations and liquidity.

Demand for our products is primarily dependent on the overall health of the economy, and federal, state and local public infrastructure funding levels. The stagnant economy continues to put pressure on the demand for our construction materials and increases competition and aggressive pricing for private and public infrastructure sector projects as companies migrate from bidding on scarce private sector work to projects in the public infrastructure sector. In addition, a stagnant or declining economy tends to produce less tax revenue for public infrastructure agencies, thereby decreasing a source of funds available for spending on public infrastructure improvements, which constitute a significant part of our business.

With the slow pace of economic recovery, there is also a likelihood that we will not be able to collect on certain of our accounts receivable from our customers, many of which are still struggling. Although we are protected in part by payment bonds posted by some of our customers, we have in the past experienced payment delays from some of our customers during this economic downturn. Although such delays have not had a material effect on our business, there can be no assurance that this will be the case in the future.

If we are unable to accurately estimate the overall risks, requirements or costs when we bid on or negotiate contracts that are ultimately awarded to us, we may achieve lower than anticipated profits or incur contract losses.

Even though the majority of our governmental contracts contain certain raw material escalators to protect us from certain price increases, a portion of the contracts are on a fixed cost basis. The fixed cost basis portion of these contracts require us to perform the contract for a fixed unit price based on approved quantities irrespective of our actual costs and lump sum contracts require that the total amount of work be performed for a single price irrespective of our actual costs. We realize a profit on our contracts only if: (i) we successfully estimate our costs and then successfully control actual costs and avoid cost overruns; and (ii) our revenue exceeds actual costs. If our cost estimates for a contract are inaccurate, or if we do not execute the contract within our cost estimates, then cost overruns may cause us to incur losses or cause the contract not to be as profitable as we expected. The costs incurred and gross profit realized, if any, on our contracts can vary, sometimes substantially, from our original projections due to a variety of factors, including, but not limited to:

 

   

failure to include materials or work in a bid, or the failure to estimate properly the quantities or costs needed to complete a lump sum contract;

 

   

delays caused by weather conditions or otherwise failing to meet scheduled acceptance dates;

 

   

contract or project modifications creating unanticipated costs not covered by change orders;

 

   

changes in availability, proximity and costs of materials, including liquid asphalt, cement, aggregates and other construction materials (such as stone, gravel, sand and oil for asphalt paving), as well as fuel and lubricants for our equipment;

 

   

to the extent not covered by contractual cost escalators, variability and inability to predict the costs of purchasing diesel, liquid asphalt and cement;

 

   

availability and skill level of workers;

 

   

failure by our suppliers, subcontractors, designers, engineers or customers to perform their obligations;

 

   

fraud, theft or other improper activities by our suppliers, subcontractors, designers, engineers, customers or our own personnel;

 

   

mechanical problems with our machinery or equipment;

 

   

citations issued by any governmental authority, including the Occupational Safety and Health Administration and Mine Safety and Health Administration;

 

   

difficulties in obtaining required governmental permits or approvals;

 

18


   

changes in applicable laws and regulations;

 

   

uninsured claims or demands from third parties for alleged damages arising from the design, construction or use and operation of a project of which our work is part; and

 

   

public infrastructure sector customers may seek to impose contractual risk-shifting provisions more aggressively, and we could face increased risks.

The final results under these types of contracts could negatively affect our financial position, results of operations and liquidity.

Changes in legal requirements and governmental policies concerning zoning, land use, environmental and other areas of the law affect our business.

Our operations are affected by numerous federal, state and local laws and regulations related to zoning, land use and environmental matters. Despite our compliance efforts, we have an inherent risk of liability in the operation of our business, especially from an environmental standpoint. These potential liabilities could have an adverse effect on our operations and profitability. In addition, our operations require numerous governmental approvals and permits, which often require us to make significant capital and maintenance expenditures to comply with zoning and environmental laws and regulations. Stricter laws and regulations, or more stringent interpretations of existing laws or regulations, may impose new liabilities on us, reduce operating hours, require additional investment by us in pollution control equipment, or impede our opening new or expanding existing plants or facilities.

Our operations are subject to special hazards that may cause personal injury or property damage, subjecting us to liabilities and possible losses which may not be covered by insurance.

Operating hazards inherent in our business can cause personal injury and loss of life, damage to or destruction of property, plant and equipment and environmental damage. We maintain insurance coverage in amounts and against the risks we believe are consistent with industry practice, but this insurance may not be adequate or available to cover all losses or liabilities we may incur in our operations. Our insurance policies are subject to varying levels of deductibles. Losses up to our deductible amounts are accrued based upon our estimates of the ultimate liability for claims incurred and an estimate of claims incurred but not reported. However, liabilities subject to insurance are difficult to assess and estimate due to unknown factors, including the severity of an injury, the determination of our liability in proportion to other parties, the number of incidents not reported and the effectiveness of our safety programs. If we were to experience insurance claims or costs above our estimates, we might also be required to use working capital to satisfy these claims rather than using working capital to maintain or expand our operations.

We may incur material costs and losses as a result of claims that our products do not meet regulatory requirements or contractual specifications.

We provide our customers with products designed to meet building code or other regulatory requirements and contractual specifications for measurements such as durability, compressive strength, weight-bearing capacity and other characteristics. If we fail or are unable to provide products meeting these requirements and specifications, material claims may arise against us and our reputation could be damaged. Additionally, if a significant uninsured, non-indemnified or product-related claim is resolved against us in the future, that resolution may have a material adverse effect on our financial condition, results of operations and liquidity.

The cancellation of significant contracts or our disqualification from bidding for new contracts could reduce revenue and have a material adverse effect on our results of operations.

Contracts that we enter into with governmental entities can usually be canceled at any time by them with payment only for the work already completed. In addition, we could be prohibited from bidding on certain governmental contracts if we fail to maintain qualifications required by those entities. A cancellation of an unfinished contract or our disqualification from the bidding process could cause our equipment to be idled for a significant period of time until other comparable work becomes available, which could have a material adverse effect on our financial condition, results of operations and liquidity.

Unexpected factors affecting self-insurance claims and reserve estimates could adversely affect our business.

We use a combination of third-party insurance and self-insurance to provide for potential liabilities for workers’ compensation, general liability, vehicle accident, property and medical benefit claims. Although we believe we have minimized our exposure on individual claims, for the benefit of costs savings we have accepted the risk of a large amount of independent multiple material claims arising, which could have a significant effect on our earnings. We estimate the liabilities associated with the risks retained by us, in part, by considering historical claims experience, demographic and severity factors and other actuarial assumptions which, by their nature, are subject to a high degree of variability. Any projection of losses concerning workers’ compensation and general liability is subject to a high degree of variability. Among the causes of this variability are unpredictable external factors affecting future inflation rates, discount rates, litigation trends, legal interpretations, benefit level changes and claim settlement patterns.

 

19


Personnel Risks

We depend on our senior management and we may be materially harmed if we lose any member of our senior management team.

We are dependent upon the services of our senior management, especially CEO, Tom Hill. The loss of key management personnel or our inability to attract and retain qualified management personnel could have a material adverse effect on us. A decision by any of these individuals to leave us, to compete against us or to reduce his or her involvement could have a material adverse effect on our financial condition, results of operations and liquidity.

We may not be able to grow our business effectively or successfully implement our growth plans if we are unable to recruit additional management and other personnel. Our ability to continue to grow our business effectively and successfully implement our growth strategy is partially dependent upon our ability to attract and retain qualified management employees and other key employees. We believe there is a limited number of qualified people in our business and the industry in which we compete. As such, there can be no assurance that we will be able to identify and retain the key personnel that may be necessary to grow our business effectively or successfully implement our growth strategy. Our inability to attract and retain talented personnel could limit our ability to grow our business.

Labor disputes could disrupt operations of our businesses.

As of December 28, 2013, labor unions represented approximately 6.8% of our total hourly employees and 0.4% of our full time salaried employees, all at Continental Cement. Our collective bargaining agreements for employees generally expire between 2013 and 2015. The contract that expired in 2013 was successfully renegotiated and ratified in December 2013 and is expected to be finalized in the first quarter of 2014 with a term that extends through 2018. Although we believe we have good relations with our employees and unions, disputes with our trade unions, or the inability to renew our labor agreements, could lead to strikes or other actions that could disrupt our operations, raise costs, and reduce revenue and earnings in the affected locations.

Other Risks

We use large amounts of electricity, diesel fuel, liquid asphalt and other petroleum-based resources that are subject to potential reliability issues, supply constraints and significant price fluctuation, which could affect our financial position, operating results and liquidity.

In our production and distribution processes, we consume significant amounts of electricity, diesel fuel, liquid asphalt and other petroleum-based resources. The availability and pricing of these resources are subject to market forces that are beyond our control. Furthermore, we are vulnerable to any reliability issues experienced by our suppliers, which also are beyond our control. Our suppliers contract separately for the purchase of such resources and our sources of supply could be interrupted should our suppliers not be able to obtain these materials due to higher demand or other factors that interrupt their availability. Variability in the supply and prices of these resources could materially affect our results of operations from period to period.

Climate change and climate change legislation or regulations may adversely impact our business.

A number of governmental bodies have introduced or are contemplating legislative and regulatory change in response to the potential impacts of climate change. Such legislation or regulation, if enacted, potentially could include provisions for a “cap and trade” system of allowances and credits, among other provisions. The EPA promulgated a mandatory reporting rule covering greenhouse gas emissions from sources considered to be large emitters. The EPA has also promulgated a greenhouse gas emissions permitting rule, referred to as the “Tailoring Rule” which requires permitting of newly constructed or significantly modified large emitters of greenhouse gases under the Federal Clean Air Act. Our cement plant and one of our landfills hold EPA Title V Permits and could be affected by the Tailoring Rule. The effects on the Company’s operations and potential costs are uncertain at this time. Under the Tailoring Rule, existing permits may require changes which could require significant additional costs if there are future substantial modifications to either of these facilities that cause greenhouse gas emissions to be increased by the equivalent of 75,000 tons or more of carbon dioxide in a single year.

Other potential impacts of climate change include physical impacts such as disruption in production and product distribution due to impacts from major storm events and shifts in regional weather patterns and intensities. There is also a potential for climate change legislation and regulation to adversely impact the cost of purchased energy and electricity.

The impacts of climate change on the Company’s operations are highly uncertain and difficult to estimate. However, because a chemical reaction inherent to the manufacture of Portland cement releases carbon dioxide, a greenhouse gas, cement kiln operations may be disproportionately impacted by future regulation of greenhouse gas emissions. Climate change and legislation and regulation concerning greenhouse gases could have a material adverse effect on the Company’s financial condition, results of operations and liquidity.

 

20


Affiliates of the Sponsors indirectly own the substantial majority of the equity interests in us and may have conflicts of interest with us or holders of our notes in the future.

The Sponsors indirectly own a substantial majority of our equity interests. As a result, affiliates of the Sponsors have control over our decisions to enter into any corporate transaction and have the ability to prevent any transaction that requires the approval of equity holders regardless of whether holders of our 10.5% Senior Notes due 2020 (the “notes”) believe that any such transactions are in their own best interests. For example, affiliates of the Sponsors could collectively cause us to make acquisitions that increase the amount of our indebtedness or to sell assets, or could cause us to issue additional capital stock or declare dividends. So long as the Sponsors continue to indirectly own a significant amount of our outstanding equity interests, affiliates of the Sponsors will continue to be able to strongly influence or effectively control our decisions.

The indenture governing our notes and the credit agreement governing our senior secured credit facilities permit us to pay advisory and other fees, dividends and make other restricted payments to the Sponsors under certain circumstances and the Sponsors or their respective affiliates may have an interest in our doing so. In addition, the Sponsors have no obligation to provide us with any additional debt or equity financing.

Additionally, the Sponsors are in the business of making investments in companies and may from time to time acquire and hold interests in businesses that compete directly or indirectly with us or that supply us with goods and services. The Sponsors may also pursue acquisition opportunities that may be complementary to our business and, as a result, those acquisition opportunities may not be available to us. The holders of our notes should consider that the interests of the Sponsors may differ from their interests in material respects. See “Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters” and “Certain Relationships and Related Party Transactions, and Director Independence.”

As an “emerging growth company” under the JOBS Act, we are permitted to, and intend to, rely on exemptions from certain disclosure requirements.

As an “emerging growth company” under the JOBS Act, we are permitted to, and intend to, rely on exemptions from certain disclosure requirements. We will remain an “emerging growth company” until the earliest of: (i) the last day of the fiscal year during which we had total annual gross revenues of $1 billion or more; (ii) the last day of the fiscal year following the fifth anniversary of the date of the first sale of our common stock pursuant to an effective registration statement; (iii) the date on which we have, during the previous three year period, issued more than $1 billion in non-convertible debt; or (iv) the date on which we are deemed a “large accelerated issuer” as defined under the federal securities laws.

For so long as we remain an “emerging growth company,” we will not be required to, among other things:

 

   

comply with any requirement that may be adopted by the Public Company Accounting Oversight Board (“PCAOB”) regarding a supplement to the auditor’s reporting providing additional information about the audit and the financial statements (auditor discussion and analysis);

 

   

submit certain executive compensation matters to shareholders advisory votes pursuant to the “say on frequency” and “say on pay” provisions (requiring a non-binding shareholder vote to approve compensation of certain executive officers) and “say on golden parachute” provisions (requiring a non- binding shareholder vote to approve golden parachute arrangements for certain executive officers in connection with mergers and certain other business combinations) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010; and

 

   

include detailed compensation discussion and analysis in our filings under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and instead may provide a reduced level of disclosure concerning executive compensation.

We have not taken advantage of all of these reduced reporting requirements in this report, although we may do so in future filings with the SEC. Although we intend to rely on certain exemptions provided in the JOBS Act, the specific implications of the JOBS Act for us are still subject to interpretations and guidance by the SEC and other regulatory agencies. In addition, as our business grows, we may cease to satisfy the conditions of an “emerging growth company.” We are currently evaluating and monitoring developments with respect to these new rules and we cannot assure you that we will be able to take advantage of all of the benefits from the JOBS Act.

In addition, as an “emerging growth company,” we may elect to delay adoption of new or revised accounting standards applicable to public companies until such standards are made applicable to private companies. As a result, our financial statements may not be comparable to the financial statements of issuers who are required to comply with the effective dates for new or revised accounting standards that are applicable to public companies.

 

21


We are dependent on information technology and our systems and infrastructure face certain risks, including cyber security risks and data leakage risks.

We are dependent on information technology systems and infrastructure. Any significant breakdown, invasion, destruction or interruption of these systems by employees, others with authorized access to our systems, or unauthorized persons could negatively affect operations. There is also a risk that we could experience a business interruption, theft of information or reputational damage as a result of a cyber attack, such as an infiltration of a data center, or data leakage of confidential information either internally or at our third-party providers. While we have invested in the protection of our data and information technology to reduce these risks and periodically test the security of our information systems network, there can be no assurance that our efforts will prevent breakdowns or breaches in our systems that could adversely affect our financial condition, results of operations and liquidity.

Risks Related to Our Indebtedness

Our substantial leverage could adversely affect our ability to raise additional capital to fund our operations, limit our ability to react to changes in the economy or our industry, expose us to interest rate risk to the extent of our variable rate debt and prevent us from meeting our obligations under the notes.

We are highly leveraged. As of December 28, 2013, our long-term debt, including the current portion and without giving effect to the original issuance discount, was approximately $695.9 million. In addition, on January 17, 2013, we increased our long-term debt by $260.0 million with the issuance of Senior Notes at 10.5% due January 31, 2020. Our high degree of leverage could have important consequences for you, including:

 

   

making it more difficult for us to make payments on the notes;

 

   

increasing our vulnerability to general economic and industry conditions;

 

   

requiring a substantial portion of cash flow from operations to be dedicated to the payment of principal and interest on our indebtedness, thereby reducing our ability to use our cash flow to fund our operations, capital expenditures and future business opportunities;

 

   

exposing us to the risk of increased interest rates as certain of our borrowings under our senior secured credit facilities are at variable rates of interest;

 

   

restricting us from making strategic acquisitions or causing us to make non-strategic divestitures;

 

   

limiting our ability to obtain additional financing for working capital, capital expenditures, debt service requirements, acquisitions and general corporate or other purposes; and

 

   

limiting our ability to adjust to changing market conditions and placing us at a competitive disadvantage compared to our competitors who are less highly leveraged.

Borrowings under our senior secured credit facilities are at variable rates of interest and expose us to interest rate risk. If interest rates increase, our debt service obligations on the variable rate indebtedness will increase even though the amount borrowed remained the same, and our net income and cash flows, including cash available for servicing our indebtedness, will correspondingly decrease. In the future, we may enter into interest rate swaps that involve the exchange of floating for fixed rate interest payments in order to reduce interest rate volatility. However, we may not maintain interest rate swaps with respect to all of our variable rate indebtedness, and any swaps we enter into may not fully mitigate our interest rate risk.

In addition, the indenture that governs our senior notes and the credit agreement governing our senior secured credit facilities contain restrictive covenants that limit our ability to engage in activities that may be in our long-term best interest. Our failure to comply with those covenants could result in an event of default which, if not cured or waived, could result in the acceleration of all our debt.

Despite our current level of indebtedness, we and our subsidiaries may still be able to incur substantially more debt. This could reduce our ability to satisfy our obligations under the notes and further exacerbate the risks to our financial condition.

We and our subsidiaries may be able to incur significant additional indebtedness in the future. Although the indenture governing the existing notes and the notes and the credit agreement governing our senior secured credit facilities contain restrictions on the incurrence of additional indebtedness, these restrictions are subject to a number of qualifications and exceptions, and the additional indebtedness incurred in compliance with these restrictions could be substantial. These restrictions also will not prevent us from incurring obligations that do not constitute indebtedness. Our senior secured credit facilities include an uncommitted incremental facility that will allow us the option to increase the amount available under the term loan facility and/or the senior secured revolving credit facility by (i) $135.0 million plus (ii) an additional amount so long as we are in pro forma compliance with a consolidated first lien net leverage ratio. Availability of such incremental facilities will be subject to, among other conditions, the absence of an event of default and pro forma compliance with the financial covenants under our credit agreement and the receipt of commitments by existing or additional financial institutions.

 

22


ITEM 1B. UNRESOLVED STAFF COMMENTS

None.

 

23


ITEM 2. PROPERTIES.

Properties

Our headquarters are located in a 16,653 square foot office space, which we lease in Denver, Colorado, under a lease expiring on August 31, 2017.

We also operate 124 quarries and sand deposits, 42 asphalt paving mix plants and 46 fixed and portable ready-mixed concrete plants and have 25 office locations.

The following chart sets forth specifics of our production and distribution facilities as of January 17, 2014:

 

Region

  

Property

  

Owned/

Leased

  

Aggregates

  

Asphalt
Plant

  

Ready
Mixed
Concrete

  

Cement

  

Landfill

  

Other*

West

   Amity, Arkansas    Leased    —      X       —      —      —  

West

   DeQueen, Arkansas    Leased    —      X       —      —      —  

West

   Kirby, Arkansas    Leased    Sandstone          —      —      —  

West

   Texarkana, Arkansas    Leased    —      X       —      —      —  

West

   Clark, Colorado    Leased    Sand and Gravel          —      —      —  

West

   Craig, Colorado    Owned    Sand and Gravel    X       —      —      —  

West

   Craig, Colorado    Leased    Sand and Gravel          —      —      —  

West

   Craig, Colorado    Leased    Sand and Gravel          —      —      —  

West

   Delta, Colorado    Owned/Leased    Sand and Gravel          —      —      —  

West

   Delta, Colorado    Leased    Sand and Gravel          —      —      —  

West

   Durango, Colorado    Leased    Sand and Gravel    X       —      —      —  

West

   Durango, Colorado    Leased    Sand and Gravel       X    —      —      —  

West

   Eagle, Colorado    Leased    —      X       —      —      —  

West

   Fruita, Colorado    Leased    Sand and Gravel          —      —      —  

West

   Grand Junction, Colorado    Owned    Sand and Gravel          —      —      —  

West

   Grand Junction, Colorado    Owned    Sand and Gravel          —      —      —  

West

   Grand Junction, Colorado    Owned    —      X       —      —      —  

West

   Grand Junction, Colorado    Owned/Leased    Sand and Gravel       X    —      —      —  

West

   Grand Junction, Colorado    Leased    Sand and Gravel          —      —      —  

West

   Grand Junction, Colorado    Owned    —         X    —      —      —  

West

   Parachute, Colorado    Leased    Sand and Gravel          —      —      —  

West

   Parachute, Colorado    Leased    Sand and Gravel          —      —      —  

West

   Silverton, Colorado    Leased    —         X    —      —      —  

West

   Whitewater, Colorado    Leased    Sand and Gravel          —      —      —  

West

   Whitewater, Colorado    Owned/Leased    Sand and Gravel          —      —      —  

West

   Whitewater, Colorado    Leased    Sand and Gravel          —      —      —  

 

24


Region

  

Property

  

Owned/

Leased

  

Aggregates

  

Asphalt
Plant

  

Ready
Mixed
Concrete

  

Cement

  

Landfill

  

Other*

West

   Woody Creek, Colorado    Owned    Sand and Gravel    X            

Central

   Bettendorf, Iowa    Owned    —            X      

West

   Bliss, Idaho    Owned    Sand and Gravel               

West

   Burley, Idaho    Owned    Sand and Gravel               

West

   Jerome, Idaho    Owned    —         X          X

West

   Rupert, Idaho    Owned    —         X         

West

   Rupert, Idaho    Leased    Sand and Gravel               

West

   Rupert, Idaho    Owned    Sand and Gravel               

West

   Rupert, Idaho    Owned    Sand and Gravel               

West

   Twin Falls, Idaho    Owned    —         X          X

Central

   Andover, Kansas    Owned    —         X         

Central

   Chapman, Kansas    Leased    Limestone               

Central

   Easton, Kansas    Leased    Limestone               

Central

   El Dorado, Kansas    Leased    —         X         

Central

   Eudora, Kansas    Owned    Limestone    X            

Central

   Eudora, Kansas    Leased    Limestone               

Central

   Eureka, Kansas    Owned          X         

Central

   Grantville, Kansas    Leased    Limestone               

Central

   Herington, Kansas    Leased    Limestone               

Central

   Highland, Kansas    Leased    Limestone               

Central

   Holton, Kansas    Leased    Limestone               

Central

   Howard, Kansas    Owned    —         X         

Central

   Lawrence, Kansas    Owned    —               X   

Central

   Lawrence, Kansas    Owned    Limestone               

Central

   Lawrence, Kansas    Owned    Limestone               

Central

   Lawrence, Kansas    Leased    Limestone               

Central

   Leavenworth, Kansas    Leased    Limestone               

Central

   Linwood, Kansas    Owned    Limestone               

Central

   Moline, Kansas    Leased    Limestone               

Central

   Olsburg, Kansas    Leased    Limestone               

Central

   Onaga, Kansas    Leased    Limestone               

Central

   Osage City, Kansas    Leased    Limestone               

 

25


Region

  

Property

  

Owned/

Leased

  

Aggregates

  

Asphalt
Plant

  

Ready
Mixed
Concrete

  

Cement

  

Landfill

  

Other*

Central

   Oxford, Kansas    Leased    Sand and Gravel               

Central

   Perry, Kansas    Owned    —                  X

Central

   Perry, Kansas    Leased    Limestone               

Central

   Perry, Kansas    Owned    —                 

Central

   Severy, Kansas    Leased    Limestone               

Central

   St. Mary’s, Kansas    Leased    Limestone               

Central

   Tonganoxie, Kansas    Leased    Limestone               

Central

   Topeka, Kansas    Leased    —      X            

Central

   Troy, Kansas    Leased    Limestone               

Central

   Washington, Kansas    Leased    Limestone               

Central

   White City, Kansas    Leased    Limestone               

Central

   Wichita, Kansas    Owned    —               X   

Central

   Wichita, Kansas    Owned    —         X         

Central

   Wichita, Kansas    Owned    —         X         

Central

   Wichita, Kansas    Leased    —         X         

Central

   Wichita, Kansas    Owned    —                  X

Central

   Wichita, Kansas    Owned    —                 

Central

   Wichita, Kansas    Owned    —         X         

Central

   Wichita, Kansas    Owned    —         X         

Central

   Wichita, Kansas    Owned    —         X         

Central

   Wichita, Kansas    Owned    —         X         

Central

   Wichita, Kansas    Owned    —      X            

Central

   Wichita, Kansas    Owned    —      X            

Central

   Wichita, Kansas    Owned    —      X            

Central

   Wichita, Kansas    Owned    Sand and Gravel               

Central

   Wichita, Kansas    Leased    Sand and Gravel               

Central

   Wichita, Kansas    Owned    Sand and Gravel               

Central

   Wichita, Kansas    Owned    —                  X

Central

   Wichita, Kansas    Owned    —                 

Central

   Winchester, Kansas    Leased    Limestone               

Central

   Woodbine, Kansas    Leased    Limestone               

Central

   Woodbine, Kansas    Owned    Limestone               

 

26


Region

  

Property

  

Owned/

Leased

  

Aggregates

  

Asphalt
Plant

  

Ready
Mixed
Concrete

  

Cement

  

Landfill

  

Other*

East

   Avon, Kentucky    Leased    —                  X

East

   Beattyville, Kentucky    Leased    Limestone    X            

East

   Bethelridge, Kentucky    Owned    Limestone    X            

East

   Burnside, Kentucky    Owned/Leased    Limestone    X            

East

   Carrollton, Kentucky    Leased    —      X            

East

   Carrollton, Kentucky    Leased    —                  X

East

   Carrollton, Kentucky    Owned    —                  X

East

   Cave City, Kentucky    Owned    Limestone               

East

   Cave City, Kentucky    Owned    Limestone               

East

   Crestwood, Kentucky    Leased    —      X            

East

   Flat Lick, Kentucky    Owned    —      X            

East

   Glasgow, Kentucky    Leased    —                  X

East

   Glasgow, Kentucky    Leased    Limestone               

East

   Glasgow, Kentucky    Leased    Limestone               

East

   Horsecave, Kentucky    Owned/Leased    Limestone               

East

   Jackson, Kentucky    Owned       X            

East

   Knob Lick, Kentucky    Owned    Limestone                X

East

   London, Kentucky    Leased    —      X            

East

   Magnolia, Kentucky    Owned    Sand and Gravel               

East

   Middlesboro, Kentucky    Owned    —      X            

East

   Monticello, Kentucky    Owned    Limestone               

East

   Morehead, Kentucky    Leased    —      X             X

East

   Paris, Kentucky    Owned    —                  X

East

   Paris, Kentucky    Leased/Owned    Limestone    X             X

East

   Pineville, Kentucky    Leased    Limestone               

East

   Ravenna, Kentucky    Leased    Limestone    X            

East

   Richmond, Kentucky    Owned    —                  X

East

   Salyersville, Kentucky    Leased    —                 

East

   Scottsville, Kentucky    Leased    Limestone               

East

   Somerset, Kentucky    Leased    Limestone               

East

   Somerset, Kentucky    Owned/Leased    Limestone    X             X

East

   Stanton, Kentucky    Owned/Leased    Limestone    X            

 

27


Region

  

Property

  

Owned/

Leased

  

Aggregates

  

Asphalt
Plant

  

Ready
Mixed
Concrete

  

Cement

  

Landfill

  

Other*

East

   Tompkinsville, Kentucky    Owned    Limestone               

East

   West Liberty, Kentucky    Owned    Limestone    X            

Central

   Amazonia, Missouri    Owned    Limestone               

Central

   Barnard, Missouri    Leased    Limestone               

Central

   Bethany, Missouri    Leased    Limestone               

Central

   Blythedale, Missouri    Leased    Limestone               

Central

   Cameron, Missouri    Owned    —                  X

Central

   Chesterfield, Missouri    Leased    —            X      

Central

   Columbia, Missouri    Leased    Limestone               

Central

   Columbia, Missouri    Owned    Limestone       X         

Central

   Columbia, Missouri    Owned    —                  X

Central

   Columbia, Missouri    Owned    —                 

Central

   Columbia, Missouri    Owned    —         X         

Central

   Columbia, Missouri    Owned    —         X         

Central

   Columbia, Missouri    Owned    —         X         

Central

   Columbia, Missouri    Leased    Limestone               

Central

   Cowgil, Missouri    Leased    Limestone               

Central

   Dawn, Missouri    Leased    Limestone               

Central

   Edinburg, Missouri    Leased    Limestone               

Central

   Gallatin, Missouri    Leased    Limestone               

Central

   Hannibal, Missouri    Owned    Limestone          X       X

Central

   Huntsville, Missouri    Owned/Leased    Limestone               

Central

   Maitland, Missouri    Owned/Leased    Limestone               

Central

   Mercer, Missouri    Leased    Limestone               

Central

   Moberly, Missouri    Owned    —         X         

Central

   Oregon, Missouri    Leased    Limestone               

Central

   Owensville, Missouri       Clay          X      

Central

   Owensville, Missouri    Owned    —            X      

Central

   Pattonsburg, Missouri    Leased    Limestone               

Central

   Pattonsburg, Missouri    Leased    Limestone               

Central

   Princeton, Missouri    Leased    Limestone               

Central

   Ravenwood, Missouri    Leased    Limestone               

 

28


Region

  

Property

  

Owned/

Leased

  

Aggregates

  

Asphalt
Plant

  

Ready
Mixed
Concrete

  

Cement

  

Landfill

  

Other*

Central

   Savannah, Missouri    Owned/Leased    Limestone               

Central

   Savannah, Missouri    Leased    —                  X

Central

   Sedalia, Missouri    Leased    Limestone               

Central

   St. Louis, Missouri    Owned    —            X      

Central

   Stet, Missouri    Leased    Limestone               

Central

   Trenton, Missouri    Leased    Limestone               

Central

   Pawnee City, Nebraska    Leased    Limestone               

West

   Sawyer, Oklahoma    Owned/Leased    Sandstone               

East

   Jellico, Tennessee    Leased    Limestone               

West

   Amarillo, Texas    Leased    —      X            

West

   Austin, Texas    Leased    —                  X

West

   Austin, Texas    Leased    —                 

West

   Brookshire, Texas    Owned    —         X         

West

   Buda, Texas    Owned    —      X            

West

   Buda, Texas    Leased    Limestone                X

West

   Buda, Texas    Leased    —      X            

West

   Columbus, Texas    Leased    Sand and Gravel               

West

   Columbus, Texas    Leased    Sand and Gravel               

West

   Columbus, Texas    Leased    —                  X

West

   Cypress, Texas    Owned    —         X         

West

   Denison, Texas    Owned    —      X            

West

   Denison, Texas    Owned    —                  X

West

   Eagle Lake, Texas    Leased    Sand and Gravel               

West

   Eagle Lake, Texas    Owned    Sand and Gravel               

West

   Eagle Lake, Texas    Leased    Sand and Gravel               

West

   Florence, Texas    Owned    Limestone               

West

   Florence, Texas    Leased    —      X            

West

   Florence, Texas    Owned    —      X            

West

   Garwood, Texas    Leased    Sand and Gravel               

West

   Greenville, Texas    Owned    —      X            

West

   Greenville, Texas    Owned    —      X            

West

   Guthrie, Texas    Leased    —      X            

 

29


Region

  

Property

  

Owned/

Leased

  

Aggregates

  

Asphalt
Plant

  

Ready
Mixed
Concrete

  

Cement

  

Landfill

  

Other*

West

   Hartley, Texas    Leased    —      X            

West

   Holiday, Texas    Leased    —                  X

West

   Katy, Texas    Owned    —         X         

West

   Manvel, Texas    Owned    —         X         

West

   Mount Pleasant, Texas    Leased    —      X            

West

   Mustang Ridge, Texas    Owned    —      X            

West

   Paris, Texas    Owned    —                  X

West

   Paris, Texas    Owned    —      X            

West

   Paris, Texas    Leased    —                  X

West

   Richmond, Texas    Owned    —         X         

West

   Richmond, Texas    Leased    —                  X

West

   Rosenberg, Texas    Owned    —         X         

West

   Sulphur Springs, Texas    Owned    —                  X

West

   Texarkana, Texas    Leased    —                  X

West

   Waller, Texas    Owned    —         X         

West

   American Fork, Utah    Owned    —         X         

West

   Aurora, Utah    Owned    —         X         

West

   Bluffdale, Utah    Owned    Sand and Gravel       X         

West

   Highland, Utah    Leased    Sand and Gravel       X         

West

   Manti, Utah    Owned    —         X         

West

   Midvale, Utah    Owned    —         X         

West

   Mona, Utah    Leased    Sand and Gravel       X         

West

   Mona, Utah    Owned    Sand and Gravel               

West

   Mount Pleasant, Utah    Owned    —         X         

West

   Parley’s Canyon, Utah    Leased    Limestone               

West

   Salt Lake City, Utah    Owned    —         X         

West

   Sandy, Utah    Owned    —                  X

West

   Saratoga Springs, Utah    Leased    Sand and Gravel               

West

   Springville, Utah    Owned    —         X         

West

   Stockton, Utah    Owned    Sand and Gravel               

West

   Tooele, Utah    Leased    Sand and Gravel               

West

   Tooele, Utah    Leased    Sand and Gravel               

 

30


Region

  

Property

  

Owned/

Leased

  

Aggregates

  

Asphalt
Plant

  

Ready
Mixed
Concrete

  

Cement

  

Landfill

  

Other*

West

   Tooele, Utah    Owned    Sand and Gravel               

West

   West Haven, Utah    Owned    —         X         

West

   West Jordan, Utah    Owned    —         X          X

West

   West Valley City, Utah    Leased    —                  X

West

   West Valley City, Utah    Owned    Sand and Gravel    X    X         

East

   Ewing, Virginia    Leased    Limestone               

West

   Big Piney, Wyoming    Leased    —         X         

West

   Evanston, Wyoming    Owned    —         X         

West

   Kemmerer, Wyoming    Leased    —         X         

 

* Other primarily consists of office space.

 

ITEM 3. LEGAL PROCEEDINGS.

Legal Proceedings

We are a party from time to time to legal proceedings relating to our operations. Our ultimate legal and financial liability in respect to all legal proceedings in which we are involved at any given time cannot be estimated with any certainty. However, based upon examination of such matters and consultation with counsel, management currently believes that the ultimate outcome of these currently-identified contingencies, net of liabilities already accrued on our consolidated balance sheet, will not have a material adverse effect on our consolidated financial position, although the resolution in any reporting period of one or more of these matters could have a significant effect on our results of operations and/or cash flows for that period.

 

ITEM 4. MINE SAFETY DISCLOSURES.

The information concerning mine safety violations or other regulatory matters required by Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act and Item 104 of Regulation S-K (17 CFR 229.104) is included in Exhibit 95.1 to this report.

 

31


PART II

 

ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES.

There are no established public trading markets for our securities. Summit Materials Intermediate Holdings, LLC, which is wholly owned by Parent, owns 100 percent of our outstanding limited liability company interests. The agreements governing our indebtedness limit our ability to issue certain preferred shares, pay dividends, redeem stock or make other distributions.

 

ITEM 6. SELECTED FINANCIAL DATA.

The following table sets forth, for the periods and as of the dates indicated, our selected predecessor and successor consolidated financial data. For financial statement presentation purposes, Hamm, which had a fiscal year-end of March 31 prior to its acquisition by Summit Materials on August 26, 2009, has been identified as the predecessor. The selected predecessor statement of operations data for the period from April 1, 2009 to August 25, 2009 was derived from the audited consolidated financial statements not included in this report. Summit Materials is the successor company. The selected successor statements of operations data for the three years ended December 28, 2013, December 29, 2012 and December 31, 2011 and the selected balance sheet data as of December 28, 2013 and December 29, 2012 are derived from our audited consolidated financial statements included elsewhere in this report. The selected successor statements of operations data for the year ended December 31, 2010 and the period from August 26, 2009 to December 31, 2009 and the selected balance sheet data as of December 31, 2010 and December 31, 2009 are derived from audited consolidated financial statements not included in this report. In 2011, Summit Materials adopted a “4-4-5” fiscal calendar in place of the calendar year it previously used. Under the 4-4-5 fiscal period, each year is divided into four quarters and each quarter consists of two four week “months” and one five week “month.” Historical results are not indicative of the results to be expected in the future.

 

32


You should read the following information together with the more detailed information contained in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the consolidated financial statements and the accompanying notes appearing elsewhere in this report.

 

     Summit Materials, LLC (Successor)     Hamm, Inc.
(Predecessor)
 
     Year Ended
December 28,
2013
    Year Ended
December 29,
2012
    Year Ended
December 31,
2011
    Year Ended
December 31,
2010
    Period from
August 26, 2009
to December 31,
2009
    Period from
April 1, 2009
to August 25,
2009
 
(in thousands)             

Statement of Operations Data:

              

Total revenue

   $ 916,201      $ 926,254      $ 789,076      $ 405,297      $ 29,348      $ 36,195   

Total cost of revenue (excluding items shown separately below)

     677,052        713,346        597,654        284,336        21,582        24,940   

General and administrative expenses

     142,000        127,215        95,826        48,557        4,210        1,639   

Goodwill impairment

     68,202        —          —          —          —          —     

Depreciation, depletion, amortization and accretion

     72,934        68,290        61,377        33,870        3,148        3,187   

Transaction costs

     3,990        1,988        9,120        22,268        4,682        —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Operating (loss) income

     (47,977     15,415        25,099        16,266        (4,274     6,429   

Other (income) expense, net

     (1,737     (1,182     (21,244     1,583        192        484   

Loss on debt financings

     3,115        9,469        —          9,975        —          —     

Interest expense

     56,443        58,079        47,784        25,430        574        —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

(Loss) income from continuing operations before tax

     (105,798     (50,951     (1,441     (20,722     (5,040     5,945   

Income tax (benefit) expense

     (2,647     (3,920     3,408        2,363        216        2,303   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

(Loss) income from continuing operations

   $ (103,151   $ (47,031   $ (4,849   $ (23,085   $ (5,256   $ 3,642   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cash Flow Data

              

Net cash provided by (used for):

              

Operating activities

   $ 66,412      $ 62,279      $ 23,253      $ (20,529   $ 3,897      $ 6,320   

Investing activities

     (111,515     (85,340     (192,331     (499,381     (46,669     31,255   

Financings activities

     32,589        7,702        146,775        575,389        52,379        (44,649

Balance Sheet Data (as of period end):

              

Cash

   $ 14,917      $ 27,431      $ 42,790      $ 65,093      $ 9,614     

Total assets

     1,247,794        1,281,213        1,284,265        1,101,581        111,775     

Total debt (including current portion of long-term debt)

     688,987        639,843        608,981        559,980        28,750     

Capital leases

     8,026        3,092        3,158        3,217        —       

Total member’s interest

     283,551        382,428        436,372        345,993        —       

Redeemable Noncontrolling interests

     24,767        22,850        21,300        21,300        —       

Other Financial Data (as of period end):

              

Total hard assets (1)

   $ 928,210      $ 906,584      $ 906,166      $ 775,457      $ 92,309     

Ratio of earnings to fixed charges (2)

     N/A        0.1x        1.0x        0.2x        N/A        365.0x   

 

(1) Defined as the balance sheet book value of the sum of (a) net property, plant and equipment and (b) inventories.
(2) The ratio of earnings to fixed charges is determined by dividing earnings, as adjusted, by fixed charges. Fixed charges consist of interest on indebtedness plus that portion of operating lease rentals representative of the interest factor (deemed to be 33% of operating lease rentals). Earnings were insufficient to cover fixed charges for the period from August 26, 2009 to December 31, 2009 by $5.6 million and by $107.5 million for the year ended December 28, 2013.

 

33


ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS.

You should read the following discussion of our results of operations and financial condition with the “Selected Financial Data” section and our audited consolidated financial statements and the related notes thereto included elsewhere in this report. This discussion contains forward-looking statements and involves numerous risks and uncertainties, including, but not limited to, those described in the “Risk Factors” section of this report. Our actual results may differ materially from those contained in any forward-looking statements.

Overview

We are a leading, vertically-integrated, geographically-diverse, heavy-side building materials company. We supply aggregates, cement and related downstream products such as ready-mixed concrete, asphalt paving mix, concrete products and paving and related construction services for a variety of end uses in the U.S. construction industry, including public infrastructure projects, as well as private residential and non-residential construction. We believe we are a top 15 supplier of aggregates, a top 25 producer of cement and a major producer of asphalt paving mix and ready-mixed concrete in the United States by volume.

We were formed in September 2008. Since July 2009, $794.5 million of funding commitments have been made to our parent company. We have grown rapidly as a result of our disciplined acquisition strategy, utilizing approximately $463.9 million of deployed equity. Our eight operating companies make up our three distinct operating segments – Central, West and East regions – spanning 16 states and 23 metropolitan areas. We believe each of our operating companies has a top three market share position in its local market area and an extensive operating history, averaging over 35 years. Our highly experienced management team, led by 30-year industry veteran, CEO, Tom Hill has successfully enhanced the operations of acquired companies by focusing on scale advantages, cost efficiencies and pricing discipline to improve profitability and cash flow.

As of December 28, 2013, we had 1.2 billion tons and 0.4 billion tons of proven and probable aggregates reserves serving our aggregates and cement businesses, respectively, and operated over 200 sites and plants, to which we have adequate road, barge and/or railroad access. From time to time, in connection with certain acquisitions, we engage a third party engineering firm to perform a reserve audit, but we do not perform annual reserve audits.

By segment, our estimate of proven and probable reserves for which we have permits for extraction and that we consider to be recoverable aggregates of suitable quality for economic extraction are shown in the table below along with average annual production. The number of producing quarries as of December 28, 2013 shown on the table below includes the underground mine supporting our cement plant, which is currently in development.

 

Segment

  

Number of
producing
quarries

    

Tonnage of reserves for

each general type of

aggregate

    

Annual
production (1)

    

Average years
until depletion
at current
production

    

Percent of
reserves owned and
percent leased

 
      Hard rock (1)      Sand and
gravel (1)
           Owned     Leased (2)  

Central

     57         857,867         35,350         4,962         180         74     26

West

     39         153,885         199,219         7,469         47         59     41

East

     22         416,319         5,486         4,440         95         44     56
  

 

 

    

 

 

    

 

 

    

 

 

         

Total

     118         1,428,071         240,055         16,871           
  

 

 

    

 

 

    

 

 

    

 

 

         

 

(1) Hard rock, sand and gravel and annual production tons are shown in thousands.
(2) Lease terms range from monthly to on-going with an average lease expiry of 2020.

 

34


Of the 16 states in which we operate, we currently have assets in 14 states across our three geographic regions. The map below illustrates the geographic footprint of our physical assets:

 

LOGO

Our revenue is derived from multiple end-use markets including public infrastructure construction as well as private residential and non-residential construction. Public infrastructure construction includes spending by federal, state and local governments for roads, highways, bridges, airports and other infrastructure projects. Public infrastructure projects are a historically stable portion of state and federal budgets. Our acquisitions to date have been focused in states with constitutionally-protected transportation funding sources, which we believe serves to limit our exposure to state and local budgetary uncertainties. Private construction includes both residential and non-residential new construction and repair and remodel markets, which have been significantly affected by the downturn in the overall economy and the construction industry, in particular. We believe exposure to multiple geographic markets affords us greater stability through economic cycles and positions us to capitalize on upside opportunities as the residential and non-residential construction recovery occurs.

Business Trends and Conditions

The U.S. heavy-side building materials industry is composed of four primary sectors: (i) aggregates; (ii) cement; (iii) ready-mixed concrete; and (iv) asphalt paving mix, one or more of which is widely used in most forms of construction activity. Participants in these sectors typically range from small, privately-held companies focused on a single product or market to multinational companies that offer a wide array of construction materials and services across several markets. Markets are defined in part by the distance materials can be transported efficiently, resulting in predominantly local or regional operations.

Transportation infrastructure projects, driven by both state and federal funding programs, represent a significant share of the U.S. heavy-side building materials market. MAP-21 was enacted in July 2012 and took effect in October 2012. MAP-21 is a 27-month, approximately $105.0 billion transportation funding program that provides for $40.4 billion and $41.0 billion in highway infrastructure investments in fiscal years 2013 and 2014, respectively. The spending levels are consistent with the preceding federal transportation funding program. In addition to federal funding, highway construction and maintenance funding is also available through state, county and local agencies. Our five largest states by revenue (Texas, Kansas, Kentucky, Missouri and Utah represented approximately 25%, 20%, 17%, 12% and 11%, respectively, of our total revenue for the year ended December 28, 2013) each have funds whose revenue sources are constitutionally protected and may only be spent on transportation projects:

 

   

Texas Department of Transportation’s budget from 2012 to 2014 is $31.0 billion

 

   

Kansas has a 10-year $8.2 billion highway bill that was passed in May 2010

 

   

Kentucky’s highway program has anticipated 2013-2018 funding of $5.7 billion

 

35


   

Missouri has an estimated $0.7 billion in annual construction funding committed to essential road and bridge programs through 2017

 

   

Utah’s transportation investment fund has $3.5 billion committed through 2018

Currently, there is uncertainty as to what will succeed MAP-21, which expires in September 2014. A new highway bill may be passed by the end of 2014, which will require continuing resolutions between September 2014 and the date a new bill is passed. We are not expecting a significant change in funding levels through the continuing resolutions or a new bill. However, given the nation’s aging infrastructure and considering longstanding historical spending trends, management expects U.S. infrastructure investment to grow over the long-term. Management believes that the Company is well-positioned to capitalize on any such increase in investment.

Within many of our markets, the federal, state and local governments have taken actions to maintain or grow highway funding during a time in which many areas of spending are facing significant cuts. However, we could still be affected by any economic improvement or decline, which could vary by local region and market. Our sales and earnings are sensitive to national, regional and local economic conditions and particularly to cyclical changes in construction spending, especially in the private sector. From a macroeconomic view, the Company sees positive indicators for the construction sector, including upward trends in housing starts, construction employment and highway obligations. All of these factors should result in increased construction activity in the relatively near future as compared to the recently preceding years.

In addition to being subject to cyclical changes in the economy, our business is seasonal in nature. Almost all of our products are produced and consumed outdoors. Severe weather, seasonal changes and other weather-related conditions can significantly affect the production and sales volumes of our products. Typically, the highest sales and earnings are in the second and third quarters, and the lowest are in the first and fourth quarters. Winter weather months are generally periods of lower sales as we, and our customers, normally cannot cost-effectively mobilize and demobilize equipment and manpower under adverse weather conditions. Periods of heavy rainfall also adversely affect our work patterns and demand for our products. Our working capital may vary greatly during peak periods, but generally returns to average levels as our operating cycle is completed each fiscal year.

We are subject to commodity price risk with respect to price changes in energy, including fossil fuels and electricity for aggregates, cement, ready-mixed concrete and asphalt paving mix production, liquid asphalt, natural gas for hot mix asphalt production and diesel fuel for distribution vehicles and production related mobile equipment. Liquid asphalt escalator provisions in most of our public infrastructure contracts, other than those in Texas, limit our exposure to price fluctuations in this commodity. We often obtain similar escalators on private and commercial contracts. In addition, we enter into various firm purchase commitments, with terms generally less than one year, for certain raw materials, including commodities, in the ordinary course of business. As a result of the contract escalation clauses and effective use of the firm purchase commitments, commodity prices did not have a material effect on our results of operations in 2013, as compared to 2012.

Financial Highlights—Year ended December 28, 2013

The principal factors in evaluating our financial condition and operating results for the year ended December 28, 2013 are:

 

   

Product revenue increased $4.8 million in 2013, as compared to 2012, as a result of pricing increases across our product lines, somewhat offset by declines in asphalt and cement volumes. The following table presents volume changes by product:

 

     Volume in 2013
Compared to 2012
 

Aggregate

     5

Cement

     (4 %) 

Ready-mixed concrete

     9

Asphalt

     (14 %) 

 

   

In 2013, we increased our focus on higher-margin, low-volume paving projects, which resulted in increased operating margin, but a decrease in asphalt volumes. With regards to pricing, we experienced pricing improvements across our product lines, as presented in the following table. We realized increases in average selling prices for our primary products in 2013, as compared to 2012.

 

36


     Average Selling
Prices in 2013
Compared to
2012
 

Aggregate

     7

Cement

     3

Ready-mixed concrete

     4

Asphalt

     5

 

   

Service revenue declined $14.9 million in 2013, as compared to 2012, as a result of the increased focus on higher-margin, lower-volume paving projects and completion of high-revenue, low-margin projects, such as grading and structural work.

 

   

Our operating earnings declined $63.4 million to a loss of $48.0 million in 2013 from income of $15.4 million in 2012. In 2013, we recognized goodwill impairment charges of $68.2 million as a result of current uncertainties in the timing of a sustained recovery in the Utah and Kentucky construction markets.

 

   

Our operating earnings improved $4.8 million in 2013, as compared to 2012, excluding the $68.2 million goodwill impairment recognized in 2013. This improvement in earnings was predominantly driven by the price increases discussed above and higher margins on our construction business in 2013.

 

   

Cash provided by operations improved to $66.4 million in 2013, compared to $62.3 million in 2012, as a result of the increase in operating earnings.

 

   

On January 17, 2014, we issued an additional $260.0 million of 10.5% senior notes due 2020. Proceeds from the notes were used to acquire the assets of Alleyton, pay down outstanding borrowings on our senior secured revolving credit facility and for general corporate purposes.

Acquisitions

On January 17, 2014, we acquired certain aggregates and ready-mixed concrete assets of Alleyton in Houston, Texas, which expands our presence in the vibrant Texas market.

On April 1, 2013, we acquired certain aggregates, ready-mixed concrete and asphalt assets of Lafarge in and around Wichita, Kansas, which expands our footprint in the Wichita market across our lines of business.

On April 1, 2013, we acquired the membership interests of Westroc in Utah. The Westroc acquisition expands our market coverage for aggregates and ready-mixed concrete in Utah.

Discontinued Operations

As part of our strategy to focus on our core business as a heavy-side building materials company, we have exited certain activities, including certain concrete paving operations, our railroad construction and maintenance operations (referred to herein as the “railroad business”), which involved building and repairing railroad sidings, and our environmental remediation operations (the “environmental remediation business”), which primarily involved the repair of retaining walls along highways in Kentucky and the removal and remediation of underground fuel storage tanks. The concrete paving operations were wound down in the second quarter of 2013 and, as of March 7, 2014, all assets have been sold. The railroad and environmental remediation businesses were sold in 2012 in separate transactions for aggregate proceeds of $3.1 million. Prior to recognition as discontinued operations, all of these businesses were included in the East region’s operations.

Components of Operating Results

Total Revenue

We derive our revenue predominantly by selling construction materials and providing construction services. Construction materials consist of aggregates, cement and related downstream products, including ready-mixed concrete, asphalt paying mix and concrete products. Construction services primarily relate to asphalt paving and other highway construction services.

 

37


Revenue derived from construction material sales are recognized when risks associated with ownership have passed to unaffiliated customers. Typically this occurs when products are shipped. Product revenue generally includes sales of aggregates, cement and related downstream products and other materials to customers, net of discounts or allowances and taxes, if any.

Revenue derived from construction service contracts are recognized on the percentage-of-completion basis, measured by the cost incurred to date compared to estimated total cost of each project. This method is used because management considers cost incurred to be the best available measure of progress on these contracts. Due to the inherent uncertainties in estimating costs, it is at least reasonably possible that the estimates used will change over the life of the contract.

Operating Costs and Expenses

The key components of our operating costs and expenses consist of the following:

Total Cost of Revenue (excluding items shown separately)

Cost of revenue consists of all production and delivery costs and primarily includes labor, repair and maintenance, utilities, raw materials, fuel, transportation, subcontractor costs and manufacturing overhead. Our cost of revenue is directly affected by fluctuations in commodity energy prices, primarily diesel fuel, liquid asphalt and other petroleum-based resources. As a result, our operating profit margins can be significantly affected by changes in the underlying cost of certain raw materials if they are not recovered through corresponding changes in revenue. We attempt to limit our exposure to changes in commodity energy prices by entering into forward purchase commitments when appropriate. In addition, we have sales price adjustment provisions that provide for adjustments based on fluctuations outside a limited range in certain energy-related production costs. These provisions are in place for most of our public infrastructure contracts and we aggressively seek to include similar price adjustment provisions in our private contracts.

Goodwill Impairment

Goodwill impairment charges consist of the amount by which the fair value of a reporting unit exceeds its carrying value, as determined in the annual two-step impairment test.

General and Administrative Expenses

General and administrative expenses consist primarily of salaries and personnel costs for our sales and marketing, administration, finance and accounting, legal, information systems and human resources employees. Additional expenses include audit, consulting and professional fees, travel, insurance and other corporate expenses.

Transaction Costs

Transaction costs consist primarily of third party accounting, legal, valuation and financial advisory fees incurred in connection with acquisitions.

Depreciation, Depletion, Amortization and Accretion

Our business is capital intensive. We carry property, plant and equipment at cost, net of applicable depreciation, depletion and amortization, on our balance sheet. Depreciation on property, plant and equipment is computed on a straight-line basis or based on the economic usage over the estimated useful life of the asset. The general range of depreciable lives by category, excluding mineral reserves, which are depleted based on the units of production method on a site-by-site basis, is as follows:

 

Buildings and improvements

     7 - 40 years   

Plant, machinery and equipment

     3 - 40 years   

Truck and auto fleet

     3 - 10 years   

Mobile equipment and barges

     3 - 20 years   

Landfill airspace and improvements

     5 - 60 years   

Other

     2 - 10 years   

Amortization expense is the periodic expense related to leasehold improvements and intangible assets that were acquired with certain acquisitions. The intangible assets are generally amortized on a straight-line basis over the estimated useful lives of the assets. Leasehold improvements are amortized over the lesser of the life of the underlying asset or the remaining lease term.

Accretion expense is the periodic expense recorded for the accrued mining reclamation liabilities and landfill closure and post-closure liabilities using the effective interest method.

 

38


Results of Operations

The following discussion of our results of operations is focused on the key financial measures we use to evaluate the performance of our business from both a consolidated and operating segment perspective. Operating income and margins are discussed in terms of changes in volume, pricing and mix of revenue source (i.e., type of product sales or service revenue). The majority of our service revenue is generated by contracts that extend across multiple reporting periods for which we generally account using the percentage of completion method of accounting. Under this method, revenue is recognized as work progresses. Performance on service contracts refers to changes in contract earnings rates during the term of the contract based on revisions to estimates of profit at completion on individual contracts. These revisions result from increases or decreases to the estimated value of the contract and/or the estimated costs required to complete the contract. The following discussion of results of operations provides additional disclosure to the extent that a significant or unusual event causes a material change in the profitability of a contract.

Operating income reflects our profit from continuing operations after taking into consideration cost of revenue, general and administrative expenses, goodwill impairment, depreciation, depletion, amortization and accretion and transaction costs. The components of cost of revenue generally increase ratably with revenue, as labor, transportation costs and subcontractor costs are recorded in cost of revenue. As a result of our revenue growth occurring primarily through acquisitions and strengthening of our infrastructure (finance, information technology, legal and human resources), our general and administrative costs and depreciation, depletion, amortization and accretion have generally grown ratably with revenue. As volumes increase, we expect these costs, as a percentage of revenue, to decrease. Our transaction costs fluctuate with the number and size of acquisitions consummated each year. The table below includes revenue and operating income (loss) by segment for the periods indicated. Operating income (loss) by segment is computed as earnings before interest, taxes and other income / expense.

 

     Year-ended December 28,
2013
    Year-ended December 29,
2012
    Year-ended December 31,
2011
 
(in thousands)    Total
Revenue
     Operating
income (loss)
    Total
Revenue
     Operating
income (loss)
    Total
Revenue
     Operating
income (loss)
 

Central

   $ 329,621       $ 39,246      $ 302,113       $ 37,560      $ 264,008       $ 38,105   

West

   $ 426,195         (47,476     484,922         (6,625     362,577         (455

East

   $ 160,385         (14,207     139,219         (245     162,491         2,687   

Corporate (1)

     —           (25,540     —           (15,275     —           (15,238
  

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

Total

   $ 916,201       $ (47,977   $ 926,254       $ 15,415      $ 789,076       $ 25,099   
  

 

 

    

 

 

   

 

 

    

 

 

   

 

 

    

 

 

 

 

(1) Corporate results primarily consist of compensation and office expenses for employees included in the Company’s headquarters and transaction costs. The increase in cost is primarily attributable to the Company strengthening its infrastructure with respect to finance, information technology, legal and human resources functions and relocation of the headquarters to Denver, Colorado in August 2013.

Non-GAAP Performance Measures

Our chief operating decision maker evaluates the performance of our segments and allocates resources to them based on several factors including a measure we call segment profit, or Adjusted EBITDA by segment. We define Adjusted EBITDA as net loss before loss from discontinued operations, income tax (benefit) expense, interest expense, depreciation, depletion, amortization and accretion and goodwill impairment. Adjusted EBITDA is determined before considering the loss from discontinued operations and goodwill impairment as these amounts are not viewed by management as part of our core business when assessing the performance of our segments or allocation of resources. Accretion expense is recognized on our asset retirement obligations and reflects the time value of money. Given that accretion is similar in nature to interest expense, it is treated consistently with interest expense in determining Adjusted EBITDA.

Adjusted EBITDA reflects an additional way of viewing aspects of our business that, when viewed with our results determined in accordance with GAAP and the accompanying reconciliation to a GAAP financial measure included in the table below, may provide a more complete understanding of factors and trends affecting our business. However, it should not be construed as being more important than other comparable GAAP measures and must be considered in conjunction with the GAAP measures. In addition, non-GAAP financial measures are not standardized; therefore, it may not be possible to compare such financial measures with other companies’ non-GAAP financial measures having the same or similar names. We strongly encourage investors to review our consolidated interim financial statements in their entirety and not rely on any single financial measure.

 

39


The tables below reconcile our net loss to Adjusted EBITDA and present Adjusted EBITDA by segment for the fiscal years indicated.

 

Reconciliation of Net Loss to Adjusted EBITDA    2013     2012     2011  
(in thousands)                   

Net loss

   $ (103,679   $ (50,577   $ (10,050

Income tax (benefit) expense

     (2,647     (3,920     3,408   

Interest expense

     56,443        58,079        47,784   

Depreciation, depletion and amortization

     72,217        67,665        60,687   

Accretion

     717        625        690   

Goodwill impairment

     68,202        —          —     

Loss from discontinued operations

     528        3,546        5,201   
  

 

 

   

 

 

   

 

 

 

Adjusted EBITDA

   $ 91,781      $ 75,418      $ 107,720   
  

 

 

   

 

 

   

 

 

 

Adjusted EBITDA by Segment

      

(in thousands)

      

Central

   $ 72,918      $ 65,767      $ 65,651   

West

     28,607        14,429        36,442   

East

     15,134        10,782        15,504   

Corporate

     (24,878     (15,560     (9,877
  

 

 

   

 

 

   

 

 

 

Adjusted EBITDA

   $ 91,781      $ 75,418      $ 107,720   
  

 

 

   

 

 

   

 

 

 

Consolidated Results of Operations

The table below sets forth our consolidated results of operations for the fiscal years indicated.

 

     2013     2012     2011  
(in thousands)                   

Total revenue

   $ 916,201      $ 926,254      $ 789,076   

Total cost of revenue

     677,052        713,346        597,654   

General and administrative expenses

     142,000        127,215        95,826   

Goodwill impairment

     68,202        —          —     

Depreciation, depletion, amortization and accretion

     72,934        68,290        61,377   

Transaction costs

     3,990        1,988        9,120   
  

 

 

   

 

 

   

 

 

 

Operating (loss) income

     (47,977     15,415        25,099   

Other (income), net

     (1,737     (1,182     (21,244

Loss on debt financings

     3,115        9,469        —     

Interest expense

     56,443        58,079        47,784   
  

 

 

   

 

 

   

 

 

 

Loss from continuing operations before taxes

     (105,798     (50,951     (1,441

Income tax (benefit) expense

     (2,647     (3,920     3,408   
  

 

 

   

 

 

   

 

 

 

Loss from continuing operations

     (103,151     (47,031     (4,849

Loss from discontinued operations

     528        3,546        5,201   
  

 

 

   

 

 

   

 

 

 

Net loss

     (103,679     (50,577     (10,050

Net income attributable to noncontrolling interest

     3,112        1,919        695   
  

 

 

   

 

 

   

 

 

 

Net loss attributable to member of Summit Materials, LLC

   $ (106,791   $ (52,496   $ (10,745
  

 

 

   

 

 

   

 

 

 

 

40


Fiscal Year 2013 compared to 2012

 

(in thousands)    2013     2012     Variance  

Total revenue

   $ 916,201      $ 926,254      $ (10,053     (1.1 )% 

Operating (loss) income

     (47,977     15,415        (63,392     (411.2 )% 

Operating margin

     (5.2 )%      1.7    

Adjusted EBITDA

   $ 91,781      $ 75,418      $ 16,363        21.7

Despite a $4.8 million increase in revenue from sales of aggregates, cement and related downstream products such as ready-mixed concrete and asphalt paving mix, consolidated revenue in 2013 was down slightly from 2012. Revenue from services provided, primarily paving and construction services, decreased $14.9 million from 2012, as a result of an increased focus on higher-margin, lower-volume paving projects and completion of low-margin projects, such as grading and structural work.

Product revenue increased $4.8 million in 2013 from 2012, as a result of improved pricing across our products and an increase in aggregate volumes. Offsetting these improvements were decreases in asphalt, ready-mixed concrete and cement volumes. Detail of consolidated percent changes in production volumes and pricing from 2012 to 2013 were as follows:

 

     Percentage Change in  
     Volume     Average
Selling
Price
 

Aggregate

     4.5     7.4

Cement

     (4.1 %)      3.4

Ready -mixed concrete

     9.2     3.6

Asphalt

     (13.8 %)      4.8

Aggregates and ready-mixed concrete volumes were positively affected from the April 1, 2013 acquisitions of the Lafarge-Wichita assets and Westroc near Salt Lake City, Utah. Adverse weather in 2013, compared to much dryer weather in 2012, and an increased focus on higher-margin, lower-volume paving projects largely offset the effect of the acquisitions and drove the decline in asphalt volumes. Our cement volumes decreased 4.1% due primarily to lower volumes in the fourth quarter of 2013, as compared to the fourth quarter of 2012. Price variances across our products increased revenue by $28.7 million in 2013, which was largely offset by the net volume changes, which negatively affected revenue by $21.2 million in 2013.

Also affecting revenue was a decrease in large-scale, low margin projects in the West region. In 2012, we completed certain construction projects which provided significant revenue, but at below-average margins, including a project in Austin, Texas that contributed $47.5 million of revenue in 2012.

Operating Income

Our operating income declined $63.4 million in 2013 from 2012. In 2013, we recognized $68.2 million of goodwill impairment charges in our West and East regions from a decline in the estimated fair value of certain reporting units caused by uncertainties in the timing of a sustained recovery in the Utah and Kentucky construction markets.

Excluding the goodwill impairment charges, operating earnings improved $4.8 million in 2013 from 2012 and operating margin, which we define as operating income as a percentage of revenue, improved 50 basis points in 2013 from 2012. These profit improvements were driven by higher prices across our aggregates, ready-mixed concrete and asphalt products and improved performance on our construction projects, as low-margin legacy contracts were completed in prior periods. The pricing variances benefited revenue by $28.7 million in 2013. In 2012, we recognized $4.5 million of cost overruns on grading and structural projects in the West region and recognized an $8.0 million loss in general and administrative expenses (“G&A”) on an indemnification agreement.

These improvements to operating income were partially offset by volume decreases in our asphalt, ready-mixed concrete and cement products and increases in G&A and depreciation, depletion, amortization and accretion (collectively, referred to as depreciation). G&A increased $9.9 million for losses on asset dispositions in 2013. In addition, transaction costs increased $2.0 million in 2013, as a result of the April 1, 2013 acquisitions and costs incurred in advance of the January 17, 2014 Alleyton acquisition.

 

41


Adjusted EBITDA

Adjusted EBITDA increased $16.4 million in 2013 from 2012 as a result of the following:

 

   

The pricing and margin improvements discussed above.

 

   

In 2013, we recognized a $3.1 million loss on the February 2013 debt repricing compared to a $9.5 million loss on the January 2012 financing transactions in 2012.

Other Financial Information

Loss on Debt Financings

In February 2013, we completed a repricing of our credit facility, which provides for term loans in an aggregate amount of $422.0 million and revolving credit commitments in an aggregate amount of $150.0 million (the “Senior Secured Credit Facility”), which reduced our stated term-loan interest rate by 1.0% and provided additional borrowing capacity of $25.0 million. As a result of the repricing, we recognized a loss of $3.1 million for related bank fees in 2013. In January 2012, we refinanced our debt existing at that time, resulting in a net loss of $9.5 million in 2012. Both the repricing and the refinancing were accounted for as partial extinguishments.

Discontinued Operations

As part of our strategy to focus on our core business as a heavy-side building materials company, we have exited certain activities, including certain concrete paving operations, our railroad business and our environmental remediation business, which primarily involved the repair of retaining walls along highways in Kentucky and the removal and remediation of underground fuel storage tanks. The concrete paving operations were wound down in the second quarter of 2013 and, as of March 7, 2014, all assets have been sold. The railroad and environmental remediation businesses were sold in 2012 in separate transactions for aggregate proceeds of $3.1 million.

The results of these operations have been removed from the results of continuing operations for all periods presented. Prior to recognition as discontinued operations, all of these businesses were included in the East region’s operations. Revenue from these discontinued operations was $3.9 million in 2013 and $50.2 million in 2012. The loss from discontinued operations was $0.5 million in 2013 and $3.5 million in 2012.

Segment Results of Operations

Central Region

Central region fiscal year 2013 compared to 2012

 

(in thousands)    2013     2012     Variance  

Total revenue

   $ 329,621      $ 302,113      $ 27,508         9.1

Operating income

     39,246        37,560        1,686         4.5

Operating margin

     11.9     12.4     

Adjusted EBITDA

   $ 72,918      $ 65,767      $ 7,151         10.9

Revenue in the Central region increased $27.5 million, or 9.1%, in 2013 from 2012 as a result of positive movements in both volume and price across our products. The Central region’s percent changes in production volumes and pricing from 2012 to 2013 were as follows:

 

     Percentage Change in  
     Volume     Average
Selling
Price
 

Aggregate

     7.9     5.5

Cement

     (4.1 %)      3.4

Ready -mixed concrete

     5.6     1.0

Asphalt

     25.9     (1.9 %) 

 

42


The acquisition of the Lafarge assets in and around Wichita, Kansas contributed to the increases in aggregate, ready-mixed concrete and asphalt volumes. Asphalt prices decreased 1.9% from 2012 due to a concentration of higher grade asphalt mixes in 2012, which commanded a higher price due to higher material input cost. Cement volumes decreased 4.1% with a 3.4% price increase.

Operating Income

The Central region’s operating income increased $1.7 million and operating margin declined 50 basis points in 2013 from 2012. Operating income and margin in 2013 were positively affected by volume increases in aggregates, cement and ready–mixed concrete, realized synergies from the April 1, 2013 acquisition of the Lafarge-Wichita assets and a rebound in the Northeast Kansas market. However, these improvements were offset by higher stripping costs and a $0.8 million charge for costs to remove a sunken barge from the Mississippi River.

Adjusted EBITDA

Adjusted EBITDA improved $7.2 million in 2013 from 2012. This increase was a result of the increased volumes and improved pricing in 2013, partially offset by the decrease in cement volumes. In 2013, we also realized a decrease of $1.5 million in debt financing costs, partially offset by the effect of higher stripping costs and a $0.8 million charge to remove a sunken barge from the Mississippi River.

West Region

West region fiscal year 2013 compared to 2012

 

(in thousands)    2013     2012     Variance  

Total revenue

   $ 426,195      $ 484,922      $ (58,727     (12.1 )% 

Operating loss

     (47,476     (6,625     (40,851     616.6

Operating margin

     (11.1 )%      (1.4 )%     

Adjusted EBITDA

   $ 28,607      $ 14,429      $ 14,178        98.3

Revenue in the West region decreased 12.1% in 2013 from 2012. The decrease was primarily attributable to an increased focus on higher-margin, lower-volume paving projects, which led to a 24.5% decrease in asphalt volumes, and the completion of high-revenue, low-margin projects in 2012, such as grading and structural work. In addition, we had a significant asphalt paving project in Austin, Texas that was completed in the fourth quarter of 2012, which contributed $47.5 million to revenue in 2012.

These revenue declines were offset by improved pricing across our products lines and increased aggregate and ready–mixed concrete volumes from the April 1, 2013 Westroc acquisition. The West region’s percent changes in production volumes and pricing from 2012 to 2013 were as follows:

 

     Percentage Change in  
     Volume     Average
Selling
Price
 

Aggregate

     2.8     9.5

Ready -mixed concrete

     12.7     5.8

Asphalt

     (24.5 %)      7.8

Operating Loss

The West region’s operating loss in 2013 was $47.5 million compared to $6.6 million in 2012. In 2013, we recognized a $53.3 million goodwill impairment charge from a decline in the estimated fair value of our reporting unit based in Utah caused by uncertainties in the timing of a sustained recovery in the Utah construction market.

Excluding the goodwill impairment charge, operating earnings improved $12.4 million and operating margin improved 280 basis points in 2013 from 2012. The improvement was primarily driven by higher average selling prices in aggregates, ready-mixed concrete and asphalt and improved performance in Texas due to the completion of low margin grading and structural work in 2012 and increased focus on higher-margin, lower-volume paving projects. In addition, in 2012, we recognized an $8.0 million loss on an

 

43


indemnification agreement. In 2013, these profit improvements were offset by the 24.5% decline in asphalt volumes, as a result of the increased focus on higher-margin, lower-volume paving projects and completion of high-revenue, low-margin projects, such as grading and structural work, completing a significant project in Austin, Texas in the fourth quarter of 2012, and a $4.4 million loss in 2013 on the disposition of certain assets in Colorado.

Adjusted EBITDA

Adjusted EBITDA improved $14.2 million to $28.6 million in 2013 from $14.4 million in 2012 primarily due to (1) an $8.0 million loss on an indemnification agreement in 2012, (2) $4.5 million of cost overruns on certain structural projects in 2012, (3) $1.7 million less of debt financing costs in 2013, as compared to 2012, and (4) increased pricing of our aggregate, ready-mixed concrete and asphalt products. These earnings improvements were negatively affected by a decrease in asphalt volumes and a $4.4 million loss in 2013 on the disposition of certain assets in Colorado.

East Region

East region fiscal year 2013 compared to 2012

 

(in thousands)    2013     2012     Variance  

Total revenue

   $ 160,385      $ 139,219      $ 21,166        15.2

Operating loss

     (14,207     (245     (13,962     5698.8

Operating margin

     (8.9 )%      (0.2 )%     

Adjusted EBITDA

   $ 15,134      $ 10,782      $ 4,352        40.4

Our East region’s revenue increased 15.2% in 2013 from 2012, primarily as a result of improved aggregate pricing and increased aggregate and asphalt volumes, which was partially offset by decreased asphalt pricing. The East region’s percent changes in production volumes and pricing from 2012 to 2013 were as follows:

 

     Percentage Change in  
     Volume     Average
Selling
Price
 

Aggregate

     1.2     8.0

Asphalt

     9.3     (1.4 %) 

Operating Loss

In 2013, operating loss was $14.2 million, which included a $14.9 million goodwill impairment charge from a decline in the estimated fair value of the reporting unit caused by uncertainties in the timing of a sustained recovery in the Kentucky construction market. Excluding the goodwill impairment charge, operating income improved $0.9 million and operating margin improved 60 basis points from the comparable period in 2012. This improvement was driven by increased aggregate pricing and various cost savings initiatives implemented in 2012 and 2013, including headcount reductions of approximately 60 salaried employees.

Adjusted EBITDA

Adjusted EBITDA increased $4.4 million in 2013 from 2012 to $15.1 million. The Adjusted EBITDA increase in 2013 was driven by increased aggregate pricing and the various cost savings initiatives mentioned above. In addition, the East region benefited in 2013 from a reduction of debt financing costs of $2.5 million, as compared to 2012.

 

44


Fiscal Year 2012 compared to 2011

 

(in thousands)    2012     2011     Variance  

Total revenue

   $ 926,254      $ 789,076      $ 137,178        17.4

Operating income (loss)

     15,415        25,099        (9,684     (38.6 )% 

Operating margin

     1.7     3.2    

Adjusted EBITDA

   $ 75,418      $ 107,720      $ (32,302     (30.0 )% 

Revenue in 2012 increased to $926.3 million compared to $789.1 million in 2011. The $137.2 million increase was driven by acquisitions and $17.7 million from net pricing increases. Revenue from business acquired in 2012 totaled $24.7 million and the incremental revenue in 2012 from business acquired in 2011 was $149.7 million. Revenue growth from price increases and acquisitions was partially offset by $16.3 million of volume decreases across our product lines other than our cement business where we had an 18% increase from 2011 and from a decline in construction services revenue.

The West region experienced the most revenue growth in 2012 as compared to 2011. It was established in the second half of 2010 and grew significantly in 2011 through acquisitions. As a result, 2012 was the first year with a full year of results from these acquisitions. The West region composed 52% of consolidated revenue in 2012 compared to 46% in 2011 and the East region revenue declined from 21% to 15% of consolidated revenue. Revenue, as a percentage of consolidated revenue, remained constant in the Central region in 2012 as compared to 2011.

Operating income decreased $9.7 million from $25.1 million in 2011 to $15.4 million in 2012. Operating income reflects our profit after cost of revenue, general and administrative expenses, depreciation, depletion, amortization and accretion and transaction costs. The components of cost of revenue generally increase ratably with revenue as labor, transportation costs and subcontractor costs are recorded in cost of revenue. As a result of our revenue growth occurring primarily through acquisitions, our general and administrative costs and depreciation, depletion, amortization and accretion generally have grown ratably with revenue. Our transaction costs fluctuate with the number and size of acquisitions consummated each year.

We are subject to commodity price risk with respect to price changes in liquid asphalt and energy, including fossil fuels and electricity for aggregates, cement, ready-mixed concrete and asphalt paving mix production, natural gas for hot mix asphalt production and diesel fuel for distribution vehicles and production related mobile equipment. Liquid asphalt escalators in most of our public infrastructure contracts, other than those in Texas, limit our exposure to price fluctuations in this commodity. We often obtain similar escalators on private and commercial contracts. In addition, we enter into various firm purchase commitments with terms generally less than one year for certain raw materials, including commodities, in the ordinary course of business. As a result of the contract escalation clauses and effective use of the firm purchase commitments, commodity prices did not have a material effect on our results of operations in 2012 as compared to 2011.

As a percentage of total revenue, the individual components of operating income remained relatively consistent from 2011 to 2012. Operating margin, which we define as operating income as a percentage of total revenue, declined from 3.2% in 2011 to 1.7% in 2012. Operating margin was affected by $8.0 million of costs recognized in connection with an indemnification agreement in 2012, compared to $1.9 million recognized in 2011, low-margin contracts and higher costs on certain construction projects, primarily in the West region. During 2012, we performed work on certain grading and structural projects that were generally bid and awarded prior to our acquisition of the respective entities. These non-core structural projects were bid without cost escalators for raw materials, fuel, etc., which resulted in cost escalations in 2012 as work was performed on the projects. In addition, in the East region, we were affected by low margins on certain projects from a highly competitive environment.

We experienced a decline in Adjusted EBITDA from $107.7 million in 2011 to $75.4 million in 2012 related to the following:

 

   

In 2012, we recognized $8.0 million in losses on an indemnification agreement, compared to $1.9 million in 2011.

 

   

In 2012, a $9.5 million loss associated with a debt refinancing was recognized.

 

   

In 2011, we recognized $12.1 million of bargain purchase gains on certain acquisitions in the West region. The amount of the bargain purchase gain is equal to the amount by which the fair value of net assets acquired exceeded the consideration transferred. We believe that the resulting bargain purchase gain is reasonable as the sellers were highly motivated.

 

   

In 2011 we recognized a $10.3 million favorable fair value adjustment on contingent consideration, compared to $0.4 million in 2012. The $10.3 million adjustment in 2011 was due primarily to revised estimates of the probability of achieving the specified targets that would require contingent payments, related to certain acquisitions.

 

   

Transaction fees decreased $7.1 million in 2012 compared to 2011 due to a decrease in acquisition activity. We closed eight acquisitions in 2011 with an average purchase price of $23.6 million compared to three in 2012 for an average purchase price of $19.8 million.

 

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Other Financial Information

Other Income, Net

Other income decreased to $1.2 million in 2012 from $21.2 million in 2011. Included in other income in 2011 were $12.1 million of bargain purchase gains on certain acquisitions in the West region and a $10.3 million gain from fair value adjustments to contingent consideration, compared to a $0.4 million fair value adjustment in 2012.

Loss on Debt Refinancing

We refinanced our long-term debt and accrued interest in January 2012 resulting in a $9.5 million charge. We did not refinance our long-term debt in 2011.

Interest Expense

Interest expense increased $10.3 million, or 21.5%, to $58.1 million in 2012 compared to $47.8 million in 2011. The increase in our interest expense reflects an increase in our average debt. Our debt, without giving effect to original issuance discount, increased to $648.0 million at December 29, 2012 from $609.0 million at December 31, 2011. In addition, although our outstanding borrowings on our revolver were zero at year-end 2012, we carried an average balance of $36.7 million during 2012. The additional borrowings were primarily used to fund acquisitions ($48.8 million) and seasonal working capital requirements.

Income Tax Expense

Summit Materials is a limited liability company and passes its tax attributes for federal and state tax purposes to its parent entities and is generally not subject to federal or state income tax. However, the consolidated financial statements of the Company include federal and state income tax provisions for subsidiaries organized as taxable entities. In 2012, we recorded income tax benefit of $3.9 million compared to an expense of $3.4 million in 2011. The decrease in the income tax expense is due to taxable losses incurred by our taxable entities in 2012.

Discontinued Operations

The results of our discontinued operations have been removed from the results of continuing operations for all periods presented. Revenue from these discontinued operations was $50.2 million and $49.5 million in 2012 and 2011, respectively. The loss from discontinued operations, inclusive of an immaterial gain on the sale in 2012, was $3.5 million and $5.2 million in 2012 and 2011, respectively.

Segment Results of Operations

Central region fiscal year 2012 compared to 2011

 

(in thousands)    2012     2011     Variance  

Total revenue

   $ 302,113      $ 264,008      $ 38,105        14.4

Operating income

     37,560        38,105        (545     (1.4 )% 

Operating margin

     12.4     14.4    

Adjusted EBITDA

   $ 65,767      $ 65,651      $ 116        0.2

Revenue in the Central region increased $38.1 million, or 14.4%, in 2012 to $302.1 million compared to $264.0 million in 2011 due to acquisitions and a $15.4 million increase in cement sales, driven by a 17% increase in cement volumes. Revenue from business acquired in 2012 totaled $23.3 million and the incremental revenue in 2012 from business acquired in 2011 was $1.5 million.

Operating margin declined in 2012 to 12.4% from 14.4% in 2011 primarily due to a $3.4 million gain on landfill closure obligations in 2011, as a result of revisions to landfill closure plans. After adjusting for this non-recurring gain, operating margin in 2012 was generally consistent with 2011.

Adjusted EBITDA remained relatively consistent from $65.7 million in 2011 to $65.8 million in 2012.

 

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West region fiscal year 2012 compared to 2011

 

(in thousands)    2012     2011     Variance  

Total revenue

   $ 484,922      $ 362,577      $ 122,345        33.7

Operating loss

     (6,625     (455     (6,170     (1,356.0 )% 

Operating margin

     (1.4 )%      (0.1 )%     

Adjusted EBITDA

   $ 14,429      $ 36,442      $ (22,013     (60.4 )% 

Revenue in the West region increased $122.3 million, or 33.7%, in 2012 to $484.9 million compared to $362.6 million in 2011. The majority of the increase is due to a full year of revenue from the six acquisitions that expanded our presence in Utah, Texas and Colorado in 2011. Incremental revenue from businesses acquired in 2011 totaled $147.4 million. These increases were partially offset by volume declines in the Utah market.

Operating margin remained relatively consistent at (0.1)% in 2011 and (1.4)% in 2012. The negative margin in 2011 was affected by $6.0 million of transaction costs related to the acquisitions, while 2012 was affected by $8.0 million in losses on an indemnification agreement, compared to $1.9 million in 2011, and lower margins on legacy construction projects due to cost overruns.

Adjusted EBITDA declined $22.0 million from $36.4 million in 2011 to $14.4 million in 2012 primarily due the following:

 

   

In 2012, we recognized $8.0 million in losses on an indemnification agreement, compared to $1.9 million in 2011.

 

   

In 2011, we recognized $12.1 million of bargain purchase gains on our acquisitions in Colorado.

 

   

In 2011, we recognized a $4.8 million gain from a fair value adjustment to contingent consideration, compared to $0.4 million in 2012.

East region fiscal year 2012 compared to 2011

 

(in thousands)    2012     2011     Variance  

Total revenue

   $ 139,219      $ 162,491      $ (23,272     (14.3 )% 

Operating (loss) income

     (245     2,687        (2,932     (109.1 )% 

Operating margin

     (0.2 )%      1.7    

Adjusted EBITDA

   $ 10,782      $ 15,504      $ (4,722     (30.5 )% 

Our East region’s revenue decreased $23.3 million from $162.5 million in 2011 to $139.2 million in 2012 due to a decline in construction and paving activities in Kentucky.

Operating margin in the East region decreased from 1.7% in 2011 to (0.2)% in 2012 due primarily to cost overruns on certain construction projects.

Adjusted EBITDA declined $4.7 million from $15.5 million in 2011 to $10.8 million in 2012 due primarily to a $3.7 million charge associated with the January 2012 debt refinancing and cost overruns of certain legacy construction projects.

Liquidity and Capital Resources

Our primary sources of liquidity include cash on-hand, cash provided by our operations and amounts available for borrowing under our credit facilities. As of December 28, 2013, we had $14.9 million in cash and working capital of $85.4 million as compared to cash and working capital of $27.4 million and $114.4 million, respectively, at December 29, 2012. Working capital is calculated as current assets less current liabilities, excluding the current portion of long-term debt and outstanding borrowings on our senior secured revolving credit facility.

Given the seasonality of our business, we typically experience significant fluctuations in working capital needs and balances throughout the year. Our working capital requirements generally increase during the first half of the year as we buildup inventory and focus on repair and maintenance and other set up costs for the upcoming season. Working capital levels then decrease as we wind down the construction season and enter the winter months, which is when we see significant inflows of cash from the collection of receivables.

We believe we have access to sufficient financial resources from our liquidity sources to fund our business and operations, including contractual obligations, capital expenditures, debt service obligations and potential future acquisitions, for at least the next twelve months. Our growth strategy contemplates future acquisitions for which we believe we have sufficient capital through committed funds from our Sponsors and our borrowing capacity.

 

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There were no restricted cash balances as of December 28, 2013 or December 29, 2012. Our remaining borrowing capacity on our senior secured revolving credit facility, as of December 28, 2013 was $105.7 million, which is net of $18.3 million of outstanding letters of credit.

Our Long-Term Debt

Please refer to the notes to the consolidated financial statements for detailed information on our long-term debt and senior secured revolving credit facility, scheduled maturities of long-term debt and affirmative and negative covenants, including the maximum allowable consolidated first lien net leverage and interest coverage ratios.

At December 28, 2013 and December 29, 2012, $695.9 million and $648.0 million, respectively, of total debt, without giving effect to original issuance discount, was outstanding under the respective debt agreements, including the senior secured revolving credit facility. As of December 28, 2013, the Company was in compliance with all debt covenants.

In January 2012, Summit Materials and its 100 percent-owned subsidiary, Finance Corp. (collectively, the “Issuers”), issued $250.0 million aggregate principal amount of 10.5% Senior Notes due January 31, 2020 (the “Senior Notes”). On January 17, 2014, the Issuers added $260.0 million to the 10.5% Senior Notes due January 31, 2020, receiving proceeds of $282.8 million, before payment of fees and expenses. The proceeds were used for the purchase of Alleyton, to make payments on the senior secured revolving credit facility and for general corporate purposes. The additional $260.0 million of Senior Notes were issued at a premium of $22.8 million.

In addition to the Senior Notes, Summit Materials has a Senior Secured Credit Facility, which provides for term loans in an aggregate amount of $422.0 million and revolving credit commitments in an aggregate amount of $150.0 million. Summit Materials’ 100 percent-owned subsidiaries and its non wholly-owned subsidiary, Continental Cement, are named as guarantors of the Senior Notes and the Senior Secured Credit Facility. Certain other partially-owned subsidiaries do not guarantee the Senior Notes, including a subsidiary of Continental Cement. We have pledged substantially all of our assets as collateral for the Senior Secured Credit Facility.

Cash Flows

The following table summarizes our net cash provided by or used for operating, investing and financing activities and our capital expenditures for the periods indicated:

 

(in thousands)    2013     2012     2011  

Net cash provided by (used for)

      

Operating activities

   $ 66,412      $ 62,279      $ 23,253   

Investing activities

     (111,515     (85,340     (192,331

Financing activities

     32,589        7,702        146,775   

Cash paid for capital expenditures

   $ (65,999   $ (45,488   $ (38,656

Operating Activities

For the year ended 2013, cash provided by operating activities was $66.4 million primarily as a result of:

 

   

Non-cash expenses, including $75.9 million of depreciation, depletion, amortization and accretion, a $68.2 million goodwill impairment charge and $12.4 million from net loss on asset disposals.

 

   

Accounts receivable provided $9.9 million of additional cash from December 29, 2012 to December 28, 2013 due to an increased focus on processing billings and collecting on outstanding receivables.

For the year ended 2012, cash provided by operating activities was $62.3 million primarily as a result of:

 

   

Non-cash expenses, including $72.2 million of depreciation, depletion, amortization and accretion, which increased in 2012 in connection with our 2011 and 2012 acquisitions, and a $9.5 million loss on our January 2012 debt refinancing.

 

   

Accounts receivable and costs and estimated earnings in excess of billings provided $12.1 million of additional cash from December 31, 2011 to December 29, 2012 due to an increased focus on processing billings and collecting on outstanding receivables in a more timely manner during 2012 as compared to 2011.

 

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Accounts payable and accrued expenses provided additional cash from operations, on a net basis, of $11.1 million from December 31, 2011 to December 29, 2012 due primarily to a $16.0 million increase in accrued interest. The interest on our Senior Notes, issued in January 2012, are payable in January and July of each year and the interest on our Senior Secured Credit Facilities is payable on the last business day of each calendar quarter, which resulted in our December 2012 payment being accrued at year-end 2012 and paid in the first quarter of 2013. The increase in accrued interest was partially offset by improvement in our cash management policy with respect to accounts payable.

For the year ended 2011, cash provided by operating activities was $23.3 million primarily as a result of:

 

   

Non-cash expenses, including $65.0 million of depreciation, depletion, amortization and accretion, a $12.1 million bargain purchase gain and $10.3 million gain on the revaluation of contingent consideration.

 

   

Accounts receivable and costs and estimated earnings in excess of billings provided $13.3 million of additional cash from December 31, 2010 to December 31, 2011 due to an increased focus on timely billings and cash collections as compared to the legacy processes of the businesses acquired in 2010.

 

   

Inventory utilizing $12.6 million of cash from December 31, 2010 to December 31, 2011 as we increased our inventory balances to support the growth in business activities (revenue increased 94.7% from 2010 to 2011).

 

   

Billings in excess of costs and estimated earnings utilizing $8.2 million of cash from December 31, 2010 to December 31, 2011 due to certain contracts that were completed in 2011.

Investing Activities

For the year ended December 28, 2013, cash used for investing activities was $111.5 million, $61.6 million of which was used for the April 1, 2013 acquisitions of certain Lafarge assets in and around Wichita, Kansas and all of the membership interests of Westroc near Salt Lake City, Utah. In addition, we invested $66.0 million in capital expenditures, offset by $16.1 million of proceeds from asset sales. Approximately $25.6 million of the capital expenditures were invested in our cement business in Hannibal, Missouri, for continued development of an underground mine ($15.3 million), a cement terminal expansion to store additional cement product in St. Louis, Missouri ($2.8 million), as well as improvements made to the cement plant during the scheduled shutdowns. We are also investing in the Texas market, which is showing signs of a strong recovery. In 2013, we invested $6.4 million in a new hot mix asphalt plant in Austin, Texas.

For the year ended 2012, cash used for investing activities was $85.3 million. We paid $48.8 million for three acquisitions and $45.5 million for capital expenditures. The 2012 acquisitions expanded our presence in certain of our existing markets. Approximately half of our 2012 capital expenditures were to replace or maintain equipment and the remaining portion reflects capital investments in the business, the most significant of which is the development of an underground mine at our cement plant. We spent $5.0 million on the underground mine development in 2012.

For the year ended 2011, cash used for investing activities was $192.3 million. The company paid $161.1 million for eight acquisitions and $38.7 million for capital expenditures. Six of the eight acquisitions were in the West region through which we entered the western Colorado and Austin, Texas markets as well as expanded our presence in Utah and Idaho.

Financing Activities

For the year ended 2013, cash provided by financing activities was $32.6 million, which was primarily composed of $42.4 million in net borrowings on the senior secured revolving credit facility and proceeds from the February 2013 repricing transaction, through which our outstanding borrowings increased $25.0 million. Approximately $61.6 million of the funds from the borrowings were used on April 1, 2013 to purchase certain assets of Lafarge in and around Wichita, Kansas and all of the membership interests in Westroc. The remaining funds have been used to fund seasonal working capital needs. In addition, we made $9.8 million of payments on our acquisition-related liabilities in 2013.

For the year ended 2012, cash provided by financing activities was $7.7 million, which is primarily composed of $16.5 million of proceeds from the January 2012 financing transactions, offset by the use of cash for $7.5 million of payments under deferred consideration, and noncompete and contingent consideration arrangements entered into with various acquisitions. In 2012, all acquisitions were funded with cash on hand and debt. Accordingly, we had no proceeds from investments from our member in 2012.

For the year ended 2011, cash provided by financing activities was $146.8 million. The $103.6 million capital contributions from our member were used to fund certain acquisitions. The remaining cash provided by financing activities primarily reflects the $47.7 million of net proceeds from new debt issuances, which were also used to fund acquisitions, and $4.6 million of payments under deferred consideration and noncompete arrangements entered into with various acquisitions.

 

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Cash Paid for Capital Expenditures

We expended approximately $66.0 million in 2013 compared to $45.5 million in 2012. A portion of the increase in capital expenditures from 2012 relates to developing an underground mine to extract limestone on our Hannibal, Missouri property where our cement plant is located. We spent $15.3 million on the underground mine development in 2013.

We expended approximately $45.5 million in capital expenditures in 2012 compared to $38.7 million in 2011. A significant portion of the increase in capital expenditures in 2012 relates to development of an underground mine to extract limestone on our Hannibal, Missouri property where our cement plant is located. We spent $5.0 million on the underground mine development in 2012 compared to $0.2 million in 2011.

Contractual Obligations

The following table presents, as of December 28, 2013, our obligations and commitments to make future payments under contracts and contingent commitments (in thousands):

 

     Total      2014      2015-2016      2017-2018      Thereafter  

Short term borrowings and long-term debt, including current portion

   $ 695,890       $ 30,220       $ 9,495       $ 7,385       $ 648,790   

Capital lease obligations

     11,001         2,069         4,042         720         4,170   

Operating lease obligations

     18,260         4,034         6,988         4,359         2,879   

Interest payments (1)

     281,096         47,398         99,360         88,099         46,239   

Acquisition-related liabilities

     47,337         10,790         14,254         12,330         9,963   

Royalty payments

     21,937         2,044         4,039         3,480         12,374   

Defined benefit plans (2)

     4,880         972         2,410         1,280         218   

Asset retirement obligation payments

     39,468         1,101         3,239         4,509         30,619   

Other

     9,465         3,088         3,220         3,157         —     
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total contractual obligations (3)

   $ 1,129,334       $ 101,716       $ 147,047       $ 125,319       $ 755,252   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

(1) Future interest payments were calculated using the applicable fixed and floating rates charged by our lenders in effect as of December 28, 2013 and may differ from actual results.
(2) Amounts represent estimated future payments to fund our defined benefit plans.
(3) Any future payouts on the redeemable noncontrolling interest are excluded from total contractual obligations as the expected timing of settlement is not estimable.

Commitments and Contingencies

We are a party to various legal proceedings, including those noted in this section. We presently believe the ultimate outcome of these proceedings, individually and in the aggregate, will not materially affect the Company’s consolidated financial position, results of operations or liquidity. However, legal proceedings and government investigations are subject to inherent uncertainties, and unfavorable rulings or other events could occur, which could materially adversely affect our consolidated financial position, results of operations or liquidity.

We are obligated under an indemnification agreement entered into with the sellers of Harper Contracting for the sellers’ ownership interests in a joint venture agreement. We have the rights to any benefits under the joint venture as well as the assumption of any obligations, but do not own equity interests in the joint venture. The joint venture has incurred significant losses on a highway project in Utah, which have resulted in requests for funding from the joint venture partners and, ultimately, from the Company. We have funded $8.8 million, $4.0 million and $4.8 million in 2012 and 2011, respectively. As of December 28, 2013 and December 29, 2012, an accrual of $4.3 million is recorded in other noncurrent liabilities for this matter.

In 2013, a dispute with the sellers of Harper Contracting related to the calculation of working capital from the August 2010 acquisition was settled. The working capital dispute was submitted to binding arbitration, the outcome of which resulted in the payment of $1.9 million to the sellers. In addition, various other acquisition-related disputes with the sellers were settled for approximately $0.8 million. The total payments of $2.7 million were made in 2013. There was no material effect to 2013 earnings as a result of these settlements.

 

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In February 2011, we incurred a property loss related to a sunken barge with cement product aboard. In 2013, we recognized $0.8 million of charges for lost product aboard the barge and costs to remove the barge from the waterway. As of December 28, 2013, $0.9 million is included in accrued expenses as our best estimate of the remaining costs to remove the barge.

We are obligated under various firm purchase commitments for certain raw materials and services that are in the ordinary course of business and generally have terms less than one year. Management does not expect any significant changes in the market value of these goods and services during the commitment period that would have a material adverse effect on the financial position, results of operations or liquidity of the Company.

Off-Balance Sheet Arrangements

As of December 28, 2013, we had no material off-balance sheet arrangements, such as financing or unconsolidated variable interest entities, that either have or are reasonably likely to have a current or future material effect on our results of operations, financial position, liquidity, capital expenditures or capital resources.

Emerging Growth Company Status

We are an “emerging growth company” as defined under the JOBS Act and are eligible to take advantage of certain exemptions from various public company reporting requirements. See “Risk Factors—Other Risks—As an “emerging growth company” under the JOBS Act, we are permitted to, and intend to, rely on exemptions from certain disclosure requirements.”

Section 107 of the JOBS Act also provides that an “emerging growth company” can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act to comply with new or revised accounting standards. In other words, an “emerging growth company” can delay the adoption of certain accounting standards until those standards apply to private companies. As an “emerging growth company,” we may elect to delay adoption of new or revised accounting standards applicable to public companies until such standards are made applicable to private companies. As a result, our financial statements may not be comparable to the financial statements of issuers who are required to comply with the effective dates for new or revised accounting standards that are applicable to public companies.

We will remain an “emerging growth company” until the earliest of: (i) the last day of the fiscal year during which we had total annual gross revenue of $1 billion or more; (ii) the last day of the fiscal year following the fifth anniversary of the date of the first sale of our common stock pursuant to an effective registration statement; (iii) the date on which we have, during the previous three year period, issued more than $1 billion in non-convertible debt; or (iv) the date on which we are deemed a “large accelerated issuer” as defined under the federal securities laws.

Critical Accounting Policies

Our management’s discussion and analysis of our financial condition and results of operations is based on our consolidated financial statements, which have been prepared in accordance with GAAP. The preparation of these consolidated financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenue and expenses during the reported period.

On an ongoing basis, management evaluates its estimates, including those related to revenue recognition, allowance for doubtful accounts, inventories, asset retirement obligations, taxes and goodwill. We base our estimates and judgments on historical experience and on various other factors that we believe to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.

Acquisitions—Purchase Price Allocation

We regularly review strategic long-term plans, including potential investments in value-added acquisitions of related or similar businesses, which would increase our market share and/or are related to our existing markets. When an acquisition is completed, our consolidated statement of operations includes the operating results of the acquired business starting from the date of acquisition, which is the date that control is obtained. The purchase price is determined based on the fair value of assets given to and liabilities assumed from the seller as of the date of acquisition. We allocate the purchase price to the fair values of the tangible and intangible assets acquired and liabilities assumed as valued at the date of acquisition. Goodwill is recorded for the excess of the purchase price over the net of the fair value of the identifiable assets acquired and liabilities assumed as of the acquisition date. The estimation of fair values of acquired assets and assumed liabilities is judgmental and requires various assumptions and the amounts and useful lives assigned to depreciable and amortizable assets compared to amounts assigned to goodwill, which is not amortized, can significantly affect the results of operations in the period of and in periods subsequent to a business combination.

 

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Fair value is the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction, and, therefore, represents an exit price. A fair value measurement assumes the highest and best use of the asset by market participants, considering the use of the asset that is physically possible, legally permissible, and financially feasible at the measurement date. We assign the highest level of fair value available to assets acquired and liabilities assumed based on the following options:

 

   

Level 1—Quoted prices in active markets for identical assets and liabilities

 

   

Level 2—Observable inputs, other than quoted prices, for similar assets or liabilities in active markets

 

   

Level 3—Unobservable inputs, which includes the use of valuation models

Level 2 inputs are typically used to estimate the fair value acquired machinery, equipment and land and assumed liabilities for asset retirement obligations, environmental remediation and compliance obligations and contingencies.

Level 3 inputs are used to estimate the fair value acquired mineral reserves, mineral interests and separately-identifiable intangible assets.

There is a measurement period after the acquisition date during which we may adjust the amounts recognized for a business combination. Any such adjustments are based on us obtaining additional information that existed at the acquisition date regarding the assets acquired or the liabilities assumed. Measurement period adjustments are generally recorded as increases or decreases to the goodwill recognized in the transaction. Material adjustments are applied retroactively to the date of acquisition and reported retrospectively. The measurement period ends once we have obtained all necessary information that existed as of the acquisition date, but does not extend beyond one year from the date of acquisition. Any adjustments to assets acquired or liabilities assumed beyond the measurement period are recorded in earnings.

We have invested $61.6 million and $48.8 million in business combinations and allocated this amount to assets acquired and liabilities assumed during the years ended December 28, 2013 and December 29, 2012, respectively.

Goodwill and Goodwill Impairment

Goodwill is tested annually for impairment and in interim periods if certain events occur indicating that the carrying amounts may be impaired. The evaluation involves the use of significant estimates and assumptions and considerable management judgment. Our judgments regarding the existence of impairment indicators and future cash flows are based on operational performance of our businesses, market conditions and other factors. Although there are inherent uncertainties in this assessment process, the estimates and assumptions we use, including estimates of future cash flows, volumes, market penetration and discount rates, are consistent with our internal planning. The estimated future cash flows are derived from internal operating budgets and forecasts for long-term demand and pricing in our industry and markets. If these estimates or their related assumptions change in the future, we may be required to record an impairment charge on all or a portion of our goodwill. Furthermore, we cannot predict the occurrence of future impairment-triggering events nor the affect such events might have on our reported values. Future events could cause us to conclude that impairment indicators exist and that goodwill associated with our acquired businesses are impaired. Any resulting impairment loss could have an adverse effect on our financial position and results of operations.

Under the two-step quantitative impairment test, step one of the evaluation of impairment involves comparing the current fair value of each reporting unit to its carrying value, including goodwill. We use a discounted cash flow (“DCF”) model to estimate the current fair value of our reporting units when testing for impairment, as management believes forecasted cash flows are the best indicator of fair value. A number of significant assumptions and estimates are involved in the application of the DCF model to forecast operating cash flows, including macroeconomic trends in the public infrastructure and private construction industry, the timing of work embedded in our backlog, our performance and profitability under our contracts, our success in securing future sales and the appropriate interest rate used to discount the projected cash flows. Most of these assumptions vary significantly among the reporting units. This discounted cash flow analysis is corroborated by “top-down” analyses, including a market assessment of our enterprise value. We believe the estimates and assumptions used in the valuations are reasonable.

We assessed the fair value of our reporting units in relation to their carrying values as of the first day of the fourth quarter of 2013. Step one of the impairment test concluded that the book values of two of our reporting units, the Utah-based operations in the West region and our one reporting unit in the East region exceeded their estimated fair values. For our remaining reporting units, the estimated fair values were substantially in excess of carrying values ranging from 56% to 182%.

For the Utah-based and East region reporting units, we performed the second step of the goodwill impairment test to measure the amount of the impairment loss, if any. The second step of the test requires the allocation of the reporting unit’s fair value to its assets and liabilities, including any unrecognized intangible assets, in a hypothetical analysis that calculates the implied fair value of goodwill as if the reporting unit was being acquired in a business combination. If the implied fair value of goodwill is less than the carrying value, the difference is recorded as an impairment loss. Based on the results of the step two analyses, we recorded impairment charges of $53.3 million and $14.9 million for the Utah-based and East region reporting units, respectively.

 

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Impairment of Long-Lived Assets, Excluding Goodwill

We evaluate the carrying value of long-lived assets, including intangible assets subject to amortization, when events and circumstances indicate that the carrying value may not be recoverable. Long-lived assets are material to our total assets (as of December 28, 2013, property, plant and equipment, net represented 66.7% of total assets) and the evaluation involves the use of significant estimates and assumptions and considerable management judgment. Such indicators may include deterioration in general economic conditions, negative developments in equity and credit markets, adverse changes in the markets in which an entity operates, increases in input costs that have a negative effect on earnings and cash flows, or a trend of negative or declining cash flows over multiple periods, among others. A one year increase or decrease in the average useful lives of our property, plant and equipment would have affected 2013 depreciation expense by ($4.5) million or $5.2 million, respectively. An impairment charge could be material to our financial condition and results of operations. The carrying value of long-lived assets is considered impaired when the estimated undiscounted cash flows from such assets are less than their carrying value. In that event, we recognize a loss equal to the amount by which the carrying value exceeds the fair value of the long-lived assets.

Fair value is determined by primarily using an cash flow methodology that requires considerable management judgment and long-term assumptions. Our estimate of net future cash flows is based on historical experience and assumptions of future trends, which may be different from actual results. The goodwill impairment recognized at two reporting units was considered to be an indication that the carrying value of long-lived assets may not be recoverable at those reporting units requiring further evaluation. The evaluation indicated that the carrying value of the reporting units’ long-lived assets was less than or equal to the undiscounted future cash flows, resulting in no impairment of the evaluated long-lived assets.

We also consider the identification of an asset for disposal to be an event requiring evaluation of the asset’s fair value. Fair value is often determined to be the estimated sales price, less selling costs. If the carrying value exceeds the fair value, then an impairment charge is recognized equal to the expected loss on disposal. Throughout 2013, we recognized $12.4 million of net losses on asset dispositions, which include both the net loss on disposed assets and losses on assets identified for disposition in the succeeding twelve months. The losses commonly occur because the cash flows expected from selling the asset are less than the cash flows that could be generated from holding the asset for use.

There were no changes to the useful lives of assets having a material effect on our results of operations or financial position.

Revenue Recognition

Revenue for product sales is recognized when evidence of an arrangement exists, the fee is fixed or determinable, title passes, which generally is when the product is shipped, and collection is reasonably assured. Product revenue generally include sales of aggregates, cement and other materials to customers, net of discounts or allowances, if any, and generally include freight and delivery charges billed to customers. Freight and delivery charges associated with cement sales are recorded on a net basis. Revenue from the receipt of waste fuels are based on fees charged for waste transfer and disposal and is recognized upon acceptance of the waste.

We account for revenue and earnings on our long-term construction contracts as service revenue using the percentage-of-completion method of accounting. Under the percentage-of-completion method, we recognize contract revenue as services are rendered. We estimate profit as the difference between total estimated revenue and total estimated cost of a contract and recognize that profit over the remaining life of the contract based on input measures (e.g., costs incurred). We generally measure progress toward completion on long-term construction contracts based on the proportion of costs incurred to date relative to total estimated costs at completion. We include revisions of estimated profits on contracts in earnings under the cumulative catch-up method, under which the effect of revisions in estimates is recognized immediately. If a revised estimate of contract profitability reveals an anticipated loss on the contract, we recognize the loss in the period it is identified.

The percentage-of-completion method of accounting involves the use of various estimating techniques to project costs at completion, and in some cases includes estimates of recoveries asserted against the customer for changes in specifications or other disputes. Contract estimates involve various assumptions and projections relative to the outcome of future events over a period of multiple years, including future labor productivity and availability, the nature and complexity of the work to be performed, the cost and availability of materials, the effect of delayed performance, and the availability and timing of funding from the customer. These estimates are based on our best judgment. A significant change in one or more of these estimates could affect the profitability of one or more of our contracts. We review our contract estimates regularly to assess revisions in contract values and estimated costs at completion. No material contract adjustments were recognized in 2013 or 2012.

We recognize revenue arising from claims either as income or as an offset against a potential loss only when the amount of the claim can be estimated reliably and its realization is probable. In evaluating these criteria, we consider the contractual/legal basis for the claim, the cause of any additional costs incurred, the reasonableness of those costs and the objective evidence available to support the claim.

 

53


Mining Reclamation Obligations

We incur reclamation obligations as part of our mining activities. Our quarry activities require the removal and relocation of significant levels of overburden to access stone of usable quantity and quality. The same overburden material is used to reclaim depleted mine areas, which must be sloped to a certain gradient and seeded to prevent erosion in the future. Reclamation methods and requirements can differ depending on the quarry and state rules and regulations in existence for certain locations. This differentiation affects the potential obligation required at each individual subsidiary. As of December 28, 2013, our undiscounted reclamation obligations totaled $19.7 million, of which 21.9% is expected to be settled within the next five years and the remaining 78.1% thereafter.

Reclamation costs resulting from the normal use of long-lived assets, either owned or leased, are recognized over the period the asset is in use only if there is a legal obligation to incur these costs upon retirement of the assets. The obligation, which cannot be reduced by estimated offsetting cash flows, is recorded at fair value as a liability at the obligating event date and is accreted through charges to operating expenses. The fair value is based on our estimate for a third party to perform the legally required reclamation tasks including a reasonable profit margin. This fair value is also capitalized as part of the carrying amount of the underlying asset and depreciated over the estimated useful life of the asset.

The mining reclamation reserve is based on management’s estimate of future cost requirements to reclaim property at both currently operating and closed quarry sites. Costs are estimated in current dollars and inflated until the expected time of payment using a future estimated inflation rate and then discounted back to present value using a credit-adjusted, risk-free rate on obligations of similar maturity adjusted to reflect the Company’s credit rating. We review reclamation obligations at least every three years for a revision to the cost or a change in the estimated settlement date. Additionally, reclamation obligations are reviewed in the period that a triggering event occurs that would result in either a revision to the cost or a change in the estimated settlement date. Examples of events that would trigger a change in the cost include a new reclamation law or amendment to an existing mineral lease. Examples of events that would cause a change in the estimated settlement date include the acquisition of additional reserves or the closure of a facility. Any affect to earnings from cost revisions is included in cost of revenue.

 

ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.

We are exposed to certain market risks arising from transactions that are entered into in the normal course of business. Our operations are highly dependent upon the interest rate-sensitive construction industry as well as the general economic environment. Consequently, these marketplaces could experience lower levels of economic activity in an environment of rising interest rates or escalating costs. Management has considered the current economic environment and its potential effect to our business. Demand for aggregates products, particularly in the nonresidential and residential construction markets, could decline if companies and consumers are unable to obtain financing for construction projects or if an economic recession causes delays or cancellations to capital projects. Additionally, declining tax revenue and state budget deficits have negatively affected states’ abilities to finance infrastructure construction projects.

Pension and Other Postretirement Plans

Continental Cement sponsors two non-contributory defined benefit pension plans for hourly and salaried employees, as well as healthcare and life insurance benefits for certain eligible retired employees. As of January 1, 2012, the pension and postretirement plans have been frozen to new entrants. Effective January 2014, the pension plan for hourly employees was frozen to new participants and the healthcare and life insurance benefit plan was amended to eliminate all future retiree health and life coverage for the remaining union employees. Our results of operations are affected by our net periodic benefit cost from these plans, which totaled $1.2 million in 2013. Assumptions that affect this expense include the discount rate and, for the pension plans only, the expected long-term rate of return on assets. Therefore, we have interest rate risk associated with these factors. A one percentage-point increase or decrease in assumed health care cost trend rates would have affected estimated accumulated postretirement benefit obligation by $1.3 million or $(1.1) million, respectively, at December 28, 2013.

Commodity and Energy Price Risk

We are subject to commodity price risk with respect to price changes in liquid asphalt and energy, including fossil fuels and electricity for aggregates, cement, ready-mixed concrete and asphalt paving mix production, natural gas for hot mix asphalt production and diesel fuel for distribution vehicles and production related mobile equipment. Liquid asphalt escalators in most of our public infrastructure contracts, other than those in Texas, limit our exposure to price fluctuations in this commodity and we seek to obtain escalators on private and commercial contracts.

Inflation Risk

Overall inflation rates in recent years have not been a significant factor in our revenue or earnings due to our ability to recover increasing costs by obtaining higher prices for our products through sale price escalators in place for most public infrastructure sector contracts. Inflation risk varies with the level of activity in the construction industry, the number, size and strength of competitors and the availability of products to supply a local market.

 

54


Variable-Rate Borrowing Facilities

We have $150.0 million of revolving credit commitments under the Senior Secured Credit Facility, which bear interest at a variable rate. In February 2013, we entered into amendments to our Senior Secured Credit Facility that, among other things reduced the applicable margins used to calculate interest rates for term loans under our Credit Facility by 1.0% and reduced the applicable margins used to calculate interest rates for $131.0 million of $150.0 million Tranche A revolving credit loans available under the Senior Secured Credit Facility by 1.0%. Had this reduction been in place throughout 2012, our interest expense would have been reduced by $4.4 million. A hypothetical 100-basis-point increase in interest rates on outstanding borrowings of $26.0 million, which is the outstanding balance at December 28, 2013, would increase interest expense by $0.3 million on an annual basis.

 

55


ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.

 

56


Report of Independent Registered Public Accounting Firm

The Board of Directors and Member

of Summit Materials, LLC:

We have audited the accompanying consolidated balance sheets of Summit Materials, LLC and subsidiaries as of December 28, 2013 and December 29, 2012, and the related consolidated statements of operations, comprehensive (loss) income, cash flows, and changes in redeemable noncontrolling interest and member’s interest for the years ended December 28, 2013 and December 29, 2012. These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Summit Materials, LLC and subsidiaries as of December 28, 2013 and December 29, 2012, and the results of their operations and their cash flows for each of the years in the two-year period ended December 28, 2013, in conformity with U.S. generally accepted accounting principles.

/s/ KPMG LLP

McLean, Virginia

March 7, 2014

 

57


REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The Board of Directors of Summit Materials Holdings GP, Ltd.

and member of Summit Materials, LLC and Subsidiaries

We have audited the accompanying consolidated statements of operations, comprehensive (loss) income, changes in redeemable noncontrolling interest and member’s interest, and cash flows of Summit Materials, LLC and Subsidiaries (the “Company”) for the year ended December 31, 2011. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audits included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.

In our opinion, such consolidated financial statements present fairly, in all material respects, the results of Summit Materials, LLC and subsidiaries’ operations and their cash flows for the year ended December 31, 2011 in conformity with accounting principles generally accepted in the United States of America.

As discussed in Note 4 to the consolidated financial statements, the accompanying 2011 consolidated financial statements have been retrospectively adjusted for discontinued operations.

/s/ DELOITTE & TOUCHE LLP

McLean, Virginia

May 1, 2012 (December 6, 2013 as to Note 4)

 

58


SUMMIT MATERIALS, LLC AND SUBSIDIARIES

Consolidated Balance Sheets

December 28, 2013 and December 29, 2012

(In thousands)

 

     2013     2012  
Assets     

Current assets:

    

Cash

   $ 14,917     $ 27,431  

Accounts receivable, net

     99,337       100,298  

Costs and estimated earnings in excess of billings

     10,767       11,575  

Inventories

     96,432       92,977  

Other current assets

     13,181       10,068  
  

 

 

   

 

 

 

Total current assets

     234,634       242,349  

Property, plant and equipment, net

     831,778       813,607  

Goodwill

     127,038       179,120  

Intangible assets, net

     15,147       8,606  

Other assets

     39,197       37,531  
  

 

 

   

 

 

 

Total assets

   $ 1,247,794     $ 1,281,213  
  

 

 

   

 

 

 
Liabilities, Redeemable Noncontrolling Interest and Member’s Interest     

Current liabilities:

    

Current portion of debt

   $ 30,220     $ 4,000  

Current portion of acquisition-related liabilities

     10,635       9,525  

Accounts payable

     72,104       61,634  

Accrued expenses

     57,251       49,822  

Billings in excess of costs and estimated earnings

     9,263       6,926  
  

 

 

   

 

 

 

Total current liabilities

     179,473       131,907  

Long-term debt

     658,767       635,843  

Acquisition-related liabilities

     23,756       23,919  

Other noncurrent liabilities

     77,480       84,266  
  

 

 

   

 

 

 

Total liabilities

     939,476       875,935  
  

 

 

   

 

 

 

Commitments and contingencies (see note 13)

    

Redeemable noncontrolling interest

     24,767        22,850  

Member’s interest:

    

Member’s equity

     486,896        484,584  

Accumulated deficit

     (198,511     (94,085 )

Accumulated other comprehensive loss

     (6,045     (9,130 )
  

 

 

   

 

 

 

Member’s interest

     282,340        381,369  

Noncontrolling interest

     1,211        1,059  
  

 

 

   

 

 

 

Total member’s interest

     283,551        382,428  
  

 

 

   

 

 

 

Total liabilities, redeemable noncontrolling interest and member’s interest

   $ 1,247,794     $ 1,281,213  
  

 

 

   

 

 

 

See accompanying notes to consolidated financial statements.

 

59


SUMMIT MATERIALS, LLC AND SUBSIDIARIES

Consolidated Statements of Operations

Years ended December 28, 2013, December 29, 2012 and December 31, 2011

(In thousands)

 

     2013     2012     2011  

Revenue:

      

Product

   $ 593,570      $ 588,762      $ 427,419   

Service

     322,631        337,492        361,657   
  

 

 

   

 

 

   

 

 

 

Total revenue

     916,201        926,254        789,076   
  

 

 

   

 

 

   

 

 

 

Cost of revenue (excluding items shown separately below):

      

Product

     430,172        444,569        317,360   

Service

     246,880        268,777        280,294   
  

 

 

   

 

 

   

 

 

 

Total cost of revenue

     677,052        713,346        597,654   
  

 

 

   

 

 

   

 

 

 

General and administrative expenses

     142,000        127,215        95,826   

Goodwill impairment

     68,202        —          —     

Depreciation, depletion, amortization and accretion

     72,934        68,290        61,377   

Transaction costs

     3,990        1,988        9,120   
  

 

 

   

 

 

   

 

 

 

Operating (loss) income

     (47,977     15,415        25,099   

Other (income), net

     (1,737     (1,182     (21,244

Loss on debt financings

     3,115        9,469        —     

Interest expense

     56,443        58,079        47,784   
  

 

 

   

 

 

   

 

 

 

Loss from continuing operations before taxes

     (105,798     (50,951     (1,441

Income tax (benefit) expense

     (2,647     (3,920     3,408   
  

 

 

   

 

 

   

 

 

 

Loss from continuing operations

     (103,151     (47,031     (4,849

Loss from discontinued operations

     528        3,546        5,201   
  

 

 

   

 

 

   

 

 

 

Net loss

     (103,679     (50,577     (10,050

Net income attributable to noncontrolling interest

     3,112        1,919        695   
  

 

 

   

 

 

   

 

 

 

Net loss attributable to member of Summit Materials, LLC

   $ (106,791   $ (52,496   $ (10,745
  

 

 

   

 

 

   

 

 

 

See accompanying notes to consolidated financial statements.

 

60


SUMMIT MATERIALS, LLC AND SUBSIDIARIES

Consolidated Statements of Comprehensive (Loss) Income

Years ended December 28, 2013, December 29, 2012 and December 31, 2011

(In thousands)

 

     2013     2012     2011  

Net loss

   $ (103,679   $ (50,577   $ (10,050

Other comprehensive income (loss):

      

Pension and postretirement liability adjustment

     4,407        (3,648     (5,675
  

 

 

   

 

 

   

 

 

 

Comprehensive loss

     (99,272     (54,225     (15,725

Less comprehensive income (loss) attributable to the noncontrolling interest

     4,434        824        (675
  

 

 

   

 

 

   

 

 

 

Comprehensive loss attributable to member of Summit Materials, LLC

   $ (103,706   $ (55,049   $ (15,050
  

 

 

   

 

 

   

 

 

 

See accompanying notes to consolidated financial statements.

 

61


SUMMIT MATERIALS, LLC AND SUBSIDIARIES

Consolidated Statements of Cash Flows

Years ended December 28, 2013, December 29, 2012 and December 31, 2011

(In thousands)

 

     2013     2012     2011  

Cash flow from operating activities:

      

Net loss

   $ (103,679   $ (50,577   $ (10,050

Adjustments to reconcile net loss to net cash provided by operating activities:

      

Depreciation, depletion, amortization and accretion

     75,927        72,179        64,983   

Financing fee amortization

     3,256        3,266        2,335   

Share-based compensation expense

     2,315        2,533        2,484   

Deferred income tax benefit

     (4,408     (3,468     (1,974

Net loss on asset disposals

     12,419        2,564        2,349   

Goodwill impairment

     68,202        —          —     

Bargain purchase gain

     —          —          (12,133

Revaluation of asset retirement obligations

     —          —          (3,420

Revaluation of contingent consideration

     —          (409     (10,344

Loss on debt financings

     2,989        9,469        —     

Other

     (1,098     (465     894   

Decrease (increase) in operating assets, net of acquisitions:

      

Account receivable

     9,884        5,201        13,901   

Inventories

     499        (1,726     (12,643

Costs and estimated earnings in excess of billings

     196        6,931        (613

Other current assets

     (453     3,494        (4,823

Other assets

     (1,708     1,189        (1,016

Increase (decrease) in operating liabilities, net of acquisitions:

      

Accounts payable

     4,067        (6,076     6,612   

Accrued expenses

     (742     17,175        (6,455

Billings in excess of costs and estimated earnings

     1,998        2,589        (8,209

Other liabilities

     (3,252     (1,590     1,375   
  

 

 

   

 

 

   

 

 

 

Net cash provided by operating activities

     66,412        62,279        23,253   
  

 

 

   

 

 

   

 

 

 

Cash flow from investing activities:

      

Acquisitions, net of cash acquired

     (61,601     (48,757     (161,073

Purchases of property, plant and equipment

     (65,999     (45,488     (38,656

Proceeds from the sale of property, plant and equipment

     16,085        8,836        7,157   

Other

     —          69        241   
  

 

 

   

 

 

   

 

 

 

Net cash used for investing activities

     (111,515     (85,340     (192,331
  

 

 

   

 

 

   

 

 

 

Cash flow from financing activities:

      

Capital contributions by member

     —          —          103,630   

Net proceeds from debt issuance

     230,817        713,361        96,748   

Payments on long-term debt

     (188,424     (697,438     (49,000

Payments on acquisition-related liabilities

     (9,801     (7,519     (4,593

Other

     (3     (702     (10
  

 

 

   

 

 

   

 

 

 

Net cash provided by financing activities

     32,589        7,702        146,775   
  

 

 

   

 

 

   

 

 

 

Net decrease in cash

     (12,514     (15,359     (22,303

Cash – beginning of period

     27,431        42,790        65,093   
  

 

 

   

 

 

   

 

 

 

Cash – end of period

   $ 14,917      $ 27,431      $ 42,790   
  

 

 

   

 

 

   

 

 

 

See accompanying notes to consolidated financial statements.

 

62


SUMMIT MATERIALS, LLC AND SUBSIDIARIES

Consolidated Statements of Changes in Redeemable Noncontrolling Interest and Member’s Interest

Years ended December 28, 2013, December 29, 2012 and December 31, 2011

(In thousands)

 

     Total Member’s Interest                    
     Member’s
equity
    Accumulated
deficit
    Accumulated
other
comprehensive
loss (AOCI)
    Noncontrolling
interest
    Total
member’s
interest
    Redeemable
noncontrolling
interest
 

Balance — December 31, 2010

   $ 376,593      $ (29,555   $ (2,272   $ 1,227      $ 345,993      $ 21,300   

Contributed capital

     103,630        —          —          —          103,630        —     

Accretion / Redemption value adjustment

     —          (632     —          —          (632     632   

Net (loss) income

     —          (10,745     —          (43     (10,788     738   

Other comprehensive loss

     —          —          (4,305     —          (4,305     (1,370

Share-based compensation

     2,484        —          —          —          2,484        —     

Payment of dividends

     —          —          —          (10     (10     —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance — December 31, 2011

     482,707        (40,932     (6,577     1,174        436,372        21,300   

Accretion / Redemption value adjustment

     —          (657     —          —          (657     657   

Net (loss) income

     —          (52,496     —          (69     (52,565     1,988   

Other comprehensive loss

     —          —          (2,553     —          (2,553     (1,095

Repurchase of member’s interest

     (656     —          —          —          (656     —     

Share-based compensation

     2,533        —          —          —          2,533        —     

Payment of dividends

     —          —          —          (46     (46     —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance — December 29, 2012

     484,584        (94,085     (9,130     1,059        382,428        22,850   

Accretion / Redemption value adjustment

     —          2,365        —          —          2,365        (2,365

Net (loss) income

     —          (106,791     —          152        (106,639     2,960   

Other comprehensive gain

     —          —          3,085        —          3,085        1,322   

Repurchase of member’s interest

     (3     —          —          —          (3     —     

Share-based compensation

     2,315        —          —          —          2,315        —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance — December 28, 2013

   $ 486,896      $ (198,511   $ (6,045   $ 1,211      $ 283,551      $ 24,767   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See accompanying notes to consolidated financial statements.

 

63


NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

(Dollars in tables in thousands, unless otherwise noted)

(1) Summary of Organization and Significant Accounting Policies

Summit Materials, LLC (“Summit Materials” or the “Company”) is a vertically-integrated, heavy building materials company. Across its subsidiaries, it is engaged in the manufacturing and sale of aggregates, cement, ready-mixed concrete and asphalt paving mix. It is also engaged in road paving and related construction services. Summit Materials owns and operates quarries, sand and gravel pits, a cement plant, cement distribution terminals, asphalt plants, ready–mixed concrete plants and landfill sites. The operations of Summit Materials are conducted primarily across 14 states, with the most significant portion of the Company’s revenue generated in Texas, Kansas, Kentucky, Missouri and Utah.

Summit Materials is a 100 percent-owned subsidiary of Summit Materials Holdings L.P. (“Parent”) whose major indirect owners are certain investment funds affiliated with Blackstone Capital Partners V L.P. (“BCP”). Summit Materials has a number of subsidiaries that have individually made a number of acquisitions through 2013. The Company is organized by geographic region and has three operating segments, which are also its reporting segments: the Central; West; and East regions.

Noncontrolling interests represent a 30% redeemable ownership in Continental Cement Company, L.L.C. (“Continental Cement”) and a 20% ownership in Ohio Valley Asphalt, LLC. In 2013, Continental Cement changed its fiscal year from a calendar year to a 52-week year with each quarter composed of 13 weeks ending on a Saturday, consistent with Summit Materials’ fiscal year. Continental Cement’s fiscal year end in 2013 was December 28 compared to the calendar year ended December 31 in 2012 and 2011. The effect of this change to Summit Materials’ financial position, results of operations and liquidity was immaterial.

Principles of Consolidation —The consolidated financial statements include the accounts of the Company and its majority owned subsidiaries. All intercompany balances and transactions have been eliminated. The Company attributes consolidated member’s interests and net income separately to the controlling and noncontrolling interests. The Company accounts for investments in entities for which it has an ownership of 20% to 50% using the equity method of accounting.

Use of Estimates —The consolidated financial statements of the Company have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”), which require management to make estimates and assumptions that affect the reported amounts and disclosures in the consolidated financial statements. These estimates and the underlying assumptions affect the amounts of assets and liabilities reported, disclosures about contingent assets and liabilities and reported amounts of revenue and expenses. Such estimates include the valuation of accounts receivable, inventories, goodwill, intangible and other long-lived assets, pension and other postretirement obligations, asset retirement obligations and the redeemable noncontrolling interest. Estimates also include revenue earned and costs to complete open contracts. Management evaluates its estimates and assumptions on an ongoing basis using historical experience and other factors, including the current economic environment. Management adjusts such estimates and assumptions when circumstances dictate. As future events and their effects cannot be determined with precision, actual results could differ significantly from estimates made. Changes in estimates, including those resulting from continuing changes in the economic environment, will be reflected in the Company’s consolidated financial statements in the period in which the change in estimate occurs.

Business and Credit Concentrations —The majority of Summit Materials’ customers are located in Texas, Kansas, Kentucky, Missouri and Utah. Summit Materials’ accounts receivable consist primarily of amounts due from customers within these areas. Collection of these accounts is, therefore, dependent on the economic conditions in the aforementioned states. However, credit granted within Summit Materials’ trade areas has been granted to a wide variety of customers. No single customer accounted for more than 10% of revenue in 2013, 2012 or 2011. Management does not believe that any significant concentrations of credit exist with respect to individual customers or groups of customers.

Accounts Receivable —Accounts receivable are stated at the amount management expects to collect from outstanding balances. Management provides for probable uncollectible amounts through a charge to earnings and a credit to a valuation allowance based on its assessment of the collectability of individual accounts. In establishing the allowance, management considers historical losses adjusted to take into account current market conditions and its customers’ financial condition, the amount of receivables in dispute, the current receivables aging and current payment terms. Balances that remain outstanding after reasonable collection efforts are exercised are written off through a charge to the valuation allowance.

The balances billed but not paid by customers, pursuant to retainage provisions included in contracts, will be due upon completion of the contracts.

Revenue and Cost Recognition —Revenue for product sales are recognized when evidence of an arrangement exists, the fee is fixed or determinable, title passes, which is generally when the product is shipped, and collection is reasonably assured. Product revenue includes sales of aggregates, cement and other materials to customers, net of discounts, allowances or taxes, as applicable. Internal product sales are eliminated from service revenue in the consolidated statements of operations.

 

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Revenue from construction contracts are included in service revenue and are recognized under the percentage-of-completion accounting method. The percent complete is measured by the cost incurred to date compared to the estimated total cost of each project. This method is used as management considers expended cost to be the best available measure of progress on these contracts, the majority of which are completed within one year, but may occasionally extend beyond one year. Inherent uncertainties in estimating costs make it at least reasonably possible that the estimates used will change within the near term and over the life of the contracts.

Contract costs include all direct material and labor costs and those indirect costs related to contract performance and completion. Provisions for estimated losses on uncompleted contracts are made in the period in which such losses are estimable. General and administrative costs are charged to expense as incurred.

Changes in job performance, job conditions and estimated profitability, including those arising from contract penalty provisions and final contract settlements, may result in revisions to costs and income. Such revisions are recognized in the period in which they are determined. An amount equal to contract costs incurred that are attributable to claims is included in revenue when realization is probable and the amount can be reliably estimated.

Costs and estimated earnings in excess of billings are composed principally of revenue recognized on contracts (on the percentage-of-completion method) for which billings had not been presented to customers because the amount were not billable under the contract terms at the balance sheet date. In accordance with the contract terms, the unbilled receivables at December 28, 2013 will be billed in 2014. Billings in excess of costs and estimated earnings represent billings in excess of revenue recognized.

Revenue from the receipt of waste fuels is classified as service revenue and is based on fees charged for the waste disposal, which are recognized when the waste is accepted.

Inventories —Inventories consist of stone removed from quarries and processed for future sale, raw materials and finished concrete blocks. Inventories are valued at the lower of cost or market and are accounted for on a first-in first-out basis or an average cost basis. If items become obsolete or otherwise unusable or if quantities exceed what is projected to be sold within a reasonable period of time, they will be charged to costs of production in the period that the items are designated as obsolete or excess inventory. Stripping costs are costs of removing overburden and waste material to access aggregate materials and are recognized in cost of revenue in the same period as the revenue from the sale of the inventory.

Property, Plant and Equipment, net —Property, plant and equipment are recorded at cost, less accumulated depreciation, depletion and amortization. Expenditures for additions and improvements that significantly add to the productive capacity or extend the useful life of an asset are capitalized. Repair and maintenance costs that do not substantially add to the productive capacity or extend the useful life of the asset are expensed as incurred.

Landfill airspace is included in property, plant and equipment at cost and is amortized based on utilization of the asset. Management reassesses the landfill airspace capacity with any changes in value recorded in cost of revenue. Capitalized landfill costs include expenditures for the acquisition of land and related airspace, engineering and permitting costs, cell construction costs and direct site improvement costs.

Upon disposal, the cost and related accumulated depreciation are removed from the Company’s accounts and any gain or loss is included in general and administrative expenses.

Depreciation on property, plant and equipment, including assets subject to capital leases, is computed on a straight-line basis or based on the economic usage over the estimated useful life of the asset. The estimated useful lives are generally as follows:

 

Buildings and improvements

     7–40 years   

Plant, machinery and equipment

     3–40 years   

Truck and auto fleet

     3–10 years   

Mobile equipment and barges

     3–20 years   

Landfill airspace and improvements

     5–60 years   

Depletion of mineral reserves is calculated for proven and probable reserves by the units of production method on a site-by-site basis. Leasehold improvements are amortized on a straight-line basis over the lesser of the asset’s useful life or the remaining lease term.

The Company reviews the carrying value of property, plant and equipment for impairment whenever events or circumstances indicate that the carrying value of an asset may not be recoverable from the estimated future cash flows expected to result from its use and

 

65


eventual disposition. Such indicators may include, among others, deterioration in general economic conditions, adverse changes in the markets in which an entity operates, increases in input costs that have a negative effect on earnings and cash flows or a trend of negative or declining cash flows over multiple periods. In addition, assets are assessed for impairment charges when identified for disposition. Projected losses from disposition are recognized in the period in which they become estimable, which may be in advance of the actual disposition. The net loss from asset dispositions recognized in general and administrative expenses in fiscal years 2013, 2012 and 2011 was $12.4 million, $2.6 million and $2.3 million, respectively. No material impairment charges have been recognized on assets held for use in 2013, 2012 or 2011. The losses are commonly a result of the cash flows expected from selling the asset being less than the expected cash flows that could be generated from holding the asset for use.

Accrued Mining and Landfill Reclamation —The mining reclamation reserve and financial commitments for landfill closure and post-closure activities are based on management’s estimate of future cost requirements to reclaim property at both currently operating and closed sites. Estimates of these obligations have been developed based on management’s interpretation of current requirements and proposed regulatory changes and are intended to approximate fair value. Costs are estimated in current dollars, inflated until the expected time of payment, using an inflation rate of 2.5%, and then discounted back to present value using a credit-adjusted, risk-free rate on obligations of similar maturity, adjusted to reflect the Company’s credit rating. Changes in the credit-adjusted, risk-free rate do not change recorded liabilities. However, subsequent increases in the recognized obligations are measured using a current credit-adjusted, risk-free rate. Decreases in the recognized obligations are measured at the initial credit-adjusted, risk-free rate.

Significant changes in inflation rates or the amount or timing of future cost estimates typically result in both (1) a current adjustment to the recorded liability (and corresponding adjustment to the asset) and (2) a change in accretion of the liability and depreciation of the asset to be recorded prospectively over the remaining capacity of the unmined quarry or landfill.

Intangible Assets —The Company’s intangible assets are primarily composed of lease agreements, reserve rights and trade names. The assets related to lease agreements are a result of the submarket royalty rates paid under agreements, primarily, for extracting aggregate. The values were determined as of the respective acquisition dates by a comparison of market-royalty rates to contract-royalty rates. The reserve rights relate to aggregate reserves to which the Company has the rights of ownership, but do not own the reserves. The intangible assets are amortized on a straight-line basis over the lives of the leases. Continental Cement’s trade name composes the majority of the remaining intangible assets. The following table shows intangible assets by type and in total:

 

     December 28, 2013      December 29, 2012  
     Gross            Net      Gross            Net  
     Carrying      Accumulated     Carrying      Carrying      Accumulated     Carrying  
     Amount      Amortization     Amount      Amount      Amortization     Amount  

Leases

   $ 10,430       $ (1,604   $ 8,826       $ 8,940       $ (1,092   $ 7,848   

Reserve rights

     5,890         (221     5,669         —           —          —     

Trade names

     1,020         (368     652         1,020         (262     758   
  

 

 

    

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Total intangible assets

   $ 17,340       $ (2,193   $ 15,147       $ 9,960       $ (1,354   $ 8,606   
  

 

 

    

 

 

   

 

 

    

 

 

    

 

 

   

 

 

 

Amortization expense in 2013, 2012 and 2011 was $0.8 million, $0.6 million and $0.5 million, respectively. The estimated amortization expense for intangible assets for each of the next five years and thereafter is as follows:

 

2014

   $ 897   

2015

     897   

2016

     897   

2017

     893   

2018

     893   

Thereafter

     10,670   
  

 

 

 

Total

   $ 15,147   
  

 

 

 

Goodwill —Goodwill represents the purchase price paid in excess of the fair value of net tangible and intangible assets acquired. Goodwill recorded in connection with the Company’s acquisitions is primarily attributable to the expected profitability, assembled workforces of the acquired businesses and the synergies expected to arise after the Company’s acquisition of those businesses. Goodwill is not amortized, but is tested annually for impairment as of the first day of the fourth quarter and whenever events or circumstances indicate that goodwill may be impaired. The test for goodwill impairment is a two-step process to first identify potential goodwill impairment for each reporting unit and then, if necessary, measure the amount of the impairment loss. Goodwill is tested for impairment based on the Company’s operating companies, which management has determined to be the Company’s reporting units, which are one level below its segments in the Central and West regions. The East region is considered to be a single reporting unit.

 

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Income Taxes —As a limited liability company, Summit Materials’ federal and state income tax attributes are generally passed to Parent. However, certain of the Company’s subsidiaries are taxable entities, the provisions for which are included in the consolidated financial statements. For the Company’s taxable entities, deferred income tax assets and liabilities are computed for differences between the tax basis and financial statement amounts that will result in taxable or deductible amounts in the future based on enacted tax laws and rates applicable to the periods in which the differences are expected to affect taxable income. A valuation allowance is recognized for deferred tax assets if it is more likely than not that some portion or all of the net deferred tax assets will not be realized.

The Company evaluates the tax positions taken on income tax returns that remain open to examination by the respective tax authorities from prior years and positions expected to be taken on the current year tax returns to identify uncertain tax positions. Interest and penalties are recorded in income tax expense.

Fair Value Measurements —The fair value accounting guidance establishes the following fair value hierarchy that prioritizes the inputs used to measure fair value:

 

Level 1

    Unadjusted quoted prices for identical assets or liabilities in active markets.

Level 2

    Inputs other than Level 1 that are based on observable market data, either directly or indirectly. These include quoted prices for similar assets or liabilities in active markets, quoted prices for identical assets or liabilities in inactive markets, inputs that are observable that are not prices and inputs that are derived from or corroborated by observable markets.

Level 3

    Valuations developed from unobservable data, reflecting the Company’s own assumptions, which market participants would use in pricing the asset or liability.

Assets and liabilities measured at fair value in the consolidated balance sheets as of year-end 2013 and 2012 are as follows:

 

     2013      2012  

Accrued expenses:

     

Current portion of contingent consideration

   $ —         $ 746   

Acquisition- related liabilities

     

Contingent consideration

   $ 1,908       $ 1,908   

Certain acquisitions made by the Company require the payment of additional consideration contingent upon the achievement of specified operating results, referred to as contingent consideration or earn-out obligations. These payments will not be made if earn-out thresholds are not achieved. No material earn-out payments have been made to date.

Summit Materials records contingent consideration at fair value on the acquisition date and then measures its fair value each reporting period. Any adjustments to fair value are recognized in earnings in the period identified. Management of the Company determines the appropriate policies and procedures to be used when determining the fair value of contingent consideration. Its fair values are based on unobservable inputs, or Level 3 assumptions, including projected probability-weighted cash payments and an 8.4% discount rate, which reflects the Company’s credit risk. Changes in fair value may occur as a result of a change in actual or projected cash payments, the probability weightings applied by the Company to projected payments or a change in the discount rate. Significant increases or decreases in any of these inputs in isolation could result in a significantly lower, or higher, fair value measurement. In 2012 and 2011, we recognized reductions to contingent consideration of $0.4 million and $10.3 million, respectively, due primarily to revised estimates of the probability of achieving the specified targets.

Financial Instruments —The Company’s financial instruments include certain acquisition-related liabilities (deferred consideration and noncompete obligations) and debt. The fair value of the deferred consideration and noncompete obligations approximate their carrying value of $28.3 million and $4.2 million, respectively, as of December 28, 2013 and $23.4 million and $7.4 million, respectively, as of December 29, 2012. The fair value was determined based on Level 3 inputs of the fair value hierarchy, including the cash payment terms in the purchase agreements and a discount rate reflecting the Company’s credit risk.

The fair value of long-term debt was approximately $696.5 million and $670.7 million as of December 28, 2013 and December 29, 2012, respectively, compared to its carrying value of $663.0 million and $639.8 million, respectively. Fair value was determined based on Level 2 inputs of the fair value hierarchy, including observable inputs, specifically quoted prices for these instruments in inactive markets. The fair value of Company’s revolving credit facility approximated its carrying value of $26.0 million at December 28, 2013.

 

67


Reclassifications – Certain amounts have been reclassified in prior periods to conform to the presentation in the consolidated financial statements as of and for the year ended December 28, 2013.

(2) Acquisitions

The Company has acquired a number of entities since its formation in 2009, which were financed through a combination of debt and contributions from Parent. The operations of each acquisition have been included in the Company’s consolidated results of operations since the respective dates of the acquisitions. The Company measures all assets acquired and liabilities assumed at their acquisition-date fair value.

2013 Acquisitions

Central region

 

   

On April 1, 2013, the Company acquired certain aggregates, ready-mixed concrete and asphalt assets of Lafarge North America, Inc. in and around Wichita, Kansas, with borrowings under the Company’s senior secured revolving credit facility.

West region

 

   

On April 1, 2013, the Company acquired all of the membership interests of Westroc, LLC, an aggregates and ready-mixed concrete provider near Salt Lake City, Utah, with borrowings under the Company’s senior secured revolving credit facility.

2012 Acquisitions

Central region

 

   

On February 29, 2012, the Company acquired certain assets of Norris Quarries, LLC, an aggregates business in northwest Missouri, with proceeds from debt, including the Company’s senior secured revolving credit facility.

West region

 

   

On November 30, 2012, the Company acquired all of the stock of Sandco, Inc., an aggregates and ready-mixed concrete business in Colorado, with cash on-hand.

East region

 

   

On October 5, 2012, the Company acquired certain assets of Kay & Kay Contracting, LLC, an aggregates, asphalt and paving business in Kentucky, with cash on-hand.

Pro Forma Financial Information —The following unaudited supplemental pro forma information presents the financial results as if the 2012 acquisitions occurred on January 1, 2011. This supplemental pro forma information has been prepared for comparative purposes and does not purport to be indicative of what would have occurred had the acquisitions been made on January 1, 2011, nor is it indicative of any future results. The 2013 acquisitions were not material individually or in the aggregate.

 

     Year ended  
     December 28, 2013     December 29, 2012  

Revenue

   $ 916,201      $ 976,797   

Net loss

     (103,679     (45,976

 

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The purchase price allocation for the 2012 and 2013 acquisitions has been finalized. The following table summarizes aggregated information regarding the fair values of the assets acquired and liabilities assumed as of the respective acquisition dates in 2013 and 2012:

 

     2013     2012  

Financial assets

   $ 8,302     $ 1,397  

Inventories

     3,954       6,988  

Property, plant and equipment

     40,580       21,543  

Other assets

     52       1,330  

Intangible assets (1)

     7,428       3,172  

Financial liabilities

     (6,164 )     (944 )

Other long-term liabilities

     (1,050 )     (364 )
  

 

 

   

 

 

 

Net assets acquired

     53,102       33,122  

Goodwill

     16,120       26,230  
  

 

 

   

 

 

 

Total purchase price

     69,222       59,352  
  

 

 

   

 

 

 

Noncash transactions:

    

Acquisition related liabilities

     (7,902 )     (10,547 )

Other

     281       (48 )
  

 

 

   

 

 

 

Total noncash transactions

     (7,621 )     (10,595 )
  

 

 

   

 

 

 

Net cash paid for acquisitions

   $ 61,601     $ 48,757  
  

 

 

   

 

 

 

 

(1)  

Intangible assets acquired relate to aggregate reserves to which the Company has the rights of ownership, but do not own the reserves ($5.9 million) and the differential between contractual lease rates and market rates for leases of aggregate reserves and office space. The acquired intangible assets in total, the reserve rights and the lease assets have weighted-average lives of 18 years, 20 years and 11 years, respectively.

(3) Goodwill

As of December 28, 2013, the Company had eight reporting units with goodwill for which the annual goodwill impairment test was completed. The first step of the goodwill impairment test employed by the Company compares the fair value of the reporting units to their carrying values. Management estimates the fair value of the reporting units primarily based on the discounted projected cash flows of the underlying operations. A number of significant assumptions and estimates are required to forecast operating cash flows, including macroeconomic trends in the public infrastructure and private construction industry, the timing of work embedded in backlog, performance and profitability under contracts, expected success in securing future sales and the appropriate interest rate used to discount the projected cash flows. These assumptions may vary significantly among the reporting units. This discounted cash flow analysis is corroborated by “top-down” analyses, including a market assessment of the Company’s enterprise value.

During the annual test performed as of the first day of the fourth quarter of 2013, management concluded that the estimated fair value of the Utah-based operations in the West region and the East region were less than their carrying values. The estimated fair value of these operating units was estimated by applying a 50 percent weighting to both the discounted cash flow valuation and the market assessment, a discount rate of 11.0% and internal growth projections.

The second step of the test requires the allocation of the reporting unit’s fair value to its assets and liabilities, including any unrecognized intangible assets, in a hypothetical analysis that calculates the implied fair value of goodwill as if the reporting unit was being acquired in a business combination. If the implied fair value of goodwill is less than the carrying value, the difference is recorded as an impairment loss. Based on the step two analysis, goodwill impairment charges recognized in the year ended December 28, 2013 was $68.2 million, as a result of current uncertainties in the timing of a sustained recovery in the construction industry. No impairment charges were recognized prior to 2013.

The following table presents goodwill by reportable segments and in total:

 

     Central      West     East     Total  

Beginning Balance- December 31, 2011

   $ 53,585       $ 91,598      $ 8,192      $ 153,375   

Acquisitions

     19,204         (205     6,746        25,745   
  

 

 

    

 

 

   

 

 

   

 

 

 

Balance, December 29, 2012

     72,789         91,393        14,938        179,120   

Acquisitions

     —           16,120        —          16,120   

Impairment

     —           (53,264     (14,938     (68,202
  

 

 

    

 

 

   

 

 

   

 

 

 

Balance, December 28, 2013

   $ 72,789       $ 54,249      $ —        $ 127,038   
  

 

 

    

 

 

   

 

 

   

 

 

 

 

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(4) Discontinued Operations

The Company’s discontinued operations include a railroad construction and repair business (referred to herein as railroad), environmental remediation operations and certain concrete paving operations. The railroad business involved building and repairing railroad sidings. The environmental remediation operations primarily involved the repair of retaining walls along highways in Kentucky and the removal and remediation of underground fuel storage tanks. The railroad and environmental remediation operations were sold in 2012 in separate transactions for aggregate proceeds of $3.1 million. The concrete paving operations were wound down in the second quarter of 2013 and, as of March 7, 2014, all assets have been sold. The results of these operations have been removed from the results of continuing operations for all periods presented. Prior to recognition as discontinued operations, all of these businesses were included in the East region’s operations.

Debt and interest expense were not allocated to these businesses since there was no debt specifically attributable to the operations. The discontinued businesses are organized within a limited liability company that passes its tax attributes for federal and state tax purposes to its parent company and is generally not subject to federal or state income tax. The railroad, environmental remediation and concrete paving businesses’ revenue and loss before income tax expense, including an immaterial gain on sale, in fiscal years 2013, 2012 and 2011 are summarized below:

 

     2013      2012      2011  

Total revenue

   $ 3,884       $ 50,152       $ 49,537   

Loss from discontinued operations before income tax expense

     528         3,546         5,201   

(5) Accounts Receivable, Net

Accounts receivable, net consists of the following as of year-end 2013 and 2012:

 

     2013     2012  

Trade accounts receivable

   $ 85,188      $ 88,637   

Retention receivables

     15,966        13,181   

Receivables from related parties

     202        1,871   
  

 

 

   

 

 

 

Accounts receivable

     101,356        103,689   

Less: Allowance for doubtful accounts

     (2,019     (3,391
  

 

 

   

 

 

 

Accounts receivable, net

   $ 99,337      $ 100,298   
  

 

 

   

 

 

 

Retention receivables are amounts earned by the Company, but held by customers until projects have been fully completed or near completion. Amounts are expected to be billed and collected within a year.

(6) Inventories

Inventories consist of the following as of year-end 2013 and 2012:

 

     2013      2012  

Aggregate stockpiles

   $ 70,300       $ 62,872   

Finished goods

     11,207         9,342   

Work in process

     2,623         2,679   

Raw materials

     12,302         18,084   
  

 

 

    

 

 

 

Total

   $ 96,432       $ 92,977   
  

 

 

    

 

 

 

 

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(7) Property, Plant and Equipment, net

Property, plant and equipment, net consist of the following as of year-end 2013 and 2012:

 

     2013     2012  

Land (mineral bearing) and asset retirement costs

   $ 107,007      $ 106,135   

Land (non-mineral bearing)

     81,331        69,560   

Buildings and improvements

     77,535        78,168   

Plants, machinery and equipment

     680,942        623,949   

Truck and auto fleet

     19,165        19,399   

Landfill airspace and improvements

     46,841        46,841   

Construction in progress

     29,560        20,734   

Other

     1,779        5,134   
  

 

 

   

 

 

 

Property, plant and equipment

     1,044,160        969,920   

Less accumulated depreciation, depletion and amortization

     (212,382     (156,313
  

 

 

   

 

 

 

Property, plant and equipment, net

   $ 831,778      $ 813,607   
  

 

 

   

 

 

 

Depreciation, depletion and amortization expense of property, plant and equipment was $71.4 million, $68.6 million and $61.8 million for the years ended December 28, 2013, December 29, 2012 and December 31, 2011, respectively.

Property, plant and equipment at year-end 2013 and 2012 include $11.3 million (net of $1.3 million accumulated amortization) and $3.1 million (net of $0.2 million accumulated amortization), respectively, of capital leases for certain equipment and a building. Approximately $2.1 million of the future obligations associated with the capital leases are included in accrued expenses and the present value of the remaining capital lease payments is included in other noncurrent liabilities on the consolidated balance sheets. Future minimum rental commitments under long-term capital leases are $2.1 million, $1.1 million, $2.9 million, $0.4 million and $0.4 million for the years ended 2014, 2015, 2016, 2017 and 2018, respectively.

(8) Debt

Debt as of year-end 2013 and 2012 are summarized as follows:

 

     2013      2012  

Senior secured credit facility, revolver due 2017

   $ 26,000       $ —     
  

 

 

    

 

 

 

Long-term debt:

     

$250.0 million senior notes, net of discount of $4.0 million at December 28, 2013 and $4.7 million at December 29, 2012

   $ 245,971       $ 245,303   

$419.9 million senior secured credit facility, term loan net of discount of $2.9 million at December 28, 2013 and $3.5 million at December 29, 2012

     417,016         394,540   
  

 

 

    

 

 

 

Total

     662,987         639,843   

Current portion of long-term debt

     4,220         4,000   
  

 

 

    

 

 

 

Long-term debt

   $ 658,767       $ 635,843   
  

 

 

    

 

 

 

Accrued interest expense on long-term debt as of year-end 2013 and 2012 was $17.1 million and $19.7 million, respectively, and is included in accrued expenses on the consolidated balance sheets.

 

71


The total contractual payments of long-term debt for the five years subsequent to December 28, 2013 are as follows:

 

2014

   $ 4,220   

2015

     4,220   

2016

     5,275   

2017

     4,220   

2018

     3,165   

Thereafter

     648,790   
  

 

 

 

Total

     669,890   

Less: Original issue discount

     (6,903
  

 

 

 

Total debt

   $ 662,987   
  

 

 

 

Summit Materials and Summit Materials Finance Corp. issued $250.0 million aggregate principal amount of 10.5% Senior Notes due January 31, 2020 (“Senior Notes”) under an indenture dated January 30, 2012 (as amended and supplemented, the “Indenture”). In addition to the Senior Notes, the Company has a credit facility which provides for term loans in an aggregate amount of $422.0 million and revolving credit commitments in an aggregate amount of $150.0 million (the “Senior Secured Credit Facility”). The debt was initially issued with an original issuance discount of $9.5 million, which was recorded as a reduction to debt and is being accreted as interest expense over the term of the debt. As a result of these transactions, $9.5 million of financing fees were charged to earnings in the year ended December 29, 2012.

Senior Notes —The Senior Notes bear interest at 10.5% per year, payable semi-annually in arrears; interest payments commenced on July 31, 2012. The Indenture contains covenants limiting, among other things, the Company and its restricted subsidiaries’ ability to incur additional indebtedness or issue certain preferred shares, pay dividends, redeem stock or make other distributions, make certain investments, sell or transfer certain assets, create liens, consolidate, merge, sell or otherwise dispose of all or substantially all of the Company’s assets, enter into certain transactions with affiliates, and designate subsidiaries as unrestricted subsidiaries. The Indenture also contains customary events of default. As of December 28, 2013 and December 29, 2012, the Company was in compliance with all covenants.

Senior Secured Credit Facility —Under the Senior Secured Credit Facility, the Company has entered into term loans totaling $422.0 million with required principal repayments of 0.25% of term debt due on the last business day of each March, June, September and December. In February 2013, the Company consummated a repricing, which included additional borrowings of $25.0 million, an interest rate reduction of 1.0% and a deferral of the March 2013 principal payment. The unpaid principal balance is due in full on the maturity date, which is January 30, 2019. As a result of this repricing, $3.1 million of financing fees were charged to earnings in the year ended December 28, 2013. These restrictions also will not prevent us from incurring obligations that do not constitute indebtedness. Our senior secured credit facilities include an uncommitted incremental facility that will allow us the option to increase the amount available under the term loan facility and/or the senior secured revolving credit facility by (i) $135.0 million plus (ii) an additional amount so long as we are in pro forma compliance with a consolidated first lien net leverage ratio. The term loans bear interest per annum equal to, at the Company’s option, either (i) a base rate determined by reference to the highest of (a) the federal funds rate plus 0.50%, (b) the prime rate of Bank of America, N.A. and (c) the British Bankers Association London Interbank Offered Rate (“LIBOR”) plus 1.00%, subject to a base rate floor of 2.25%, plus an applicable margin of 2.75% for base rate loans, or (ii) a LIBOR rate determined by reference to Reuters prior to the interest period relevant to such borrowing adjusted for certain additional costs, subject to a LIBOR floor of 1.25% plus an applicable margin of 3.75% for LIBOR rate loans. The interest rate in effect at December 28, 2013 was 5.0%.

Under the Senior Secured Credit Facility, the Company has revolving credit commitments of $150.0 million. The revolving credit facility matures on January 30, 2017 and bears interest per annum equal to, at the Company’s option, either (i) a base rate determined by reference to the highest of (a) the federal funds rate plus 0.50%, (b) the prime rate of Bank of America, N.A. and (c) LIBOR plus 1.00%, plus an applicable margin of 2.5% for base rate loans or (ii) a LIBOR rate determined by reference to Reuters prior to the interest period relevant to such borrowing adjusted for certain additional costs plus an applicable margin of 3.5% for LIBOR rate loans. The interest rate in effect at December 28, 2013 was 4.4%.

There was $26.0 million outstanding under the revolver facility as of December 28, 2013, leaving remaining borrowing capacity of $105.7 million, which is net of $18.3 million of outstanding letters of credit. The outstanding letters of credit are renewed annually and support required bonding on construction projects and the Company’s insurance liabilities.

The Company must adhere to certain financial covenants related to its debt and interest leverage ratios, as defined in the Senior Secured Credit Facility. The consolidated first lien net leverage ratio, reported each quarter, should be no greater than 4.75:1.0 from January 1, 2013 through June 30, 2014; 4.50:1.0 from July 1, 2014 through June 30, 2015, and 4.25:1.0 thereafter. The interest coverage ratio must be at least 1.70:1.0 from January 1, 2013 through December 31, 2014 and 1.85:1.0 thereafter. As of December 28, 2013 and December 29, 2012, the Company was in compliance with all covenants. The Company’s 100 percent-owned subsidiary companies and its non wholly-owned subsidiary, Continental Cement, subject to certain exclusions and exceptions are named as subsidiary guarantors of the Senior Notes and the Senior Secured Credit Facility. In addition, the Company has pledged substantially all of its assets as collateral, subject to certain exclusions and exceptions, for the Senior Secured Credit Facility.

 

72


As of December 28, 2013 and December 29, 2012, $11.5 million and $12.6 million, respectively, of deferred financing fees were being amortized over the term of the debt using the effective interest method.

(9) Member’s Interest

The Company’s membership interests are held by Parent. Business affairs of the Company are managed by the Board of Directors (“Board”) of Summit Materials Holdings, GP, Ltd., the general partner of Parent, which, as of December 28, 2013, was composed of six directors. Directors of the Board are appointed by the unit holders of Parent, which is the indirect sole member of the Company.

(10) Income Taxes

For the years ended 2013, 2012 and 2011, income taxes consist of the following:

 

     2013     2012     2011  

Provision for income taxes:

      

Current

   $ 1,761      $ (452   $ 5,382   

Deferred

     (4,408     (3,468     (1,974
  

 

 

   

 

 

   

 

 

 

Income tax (benefit) expense

   $ (2,647   $ (3,920   $ 3,408   
  

 

 

   

 

 

   

 

 

 

The effective tax rate on pre-tax income differs from the U.S. statutory rate due to the following:

 

     2013     2012     2011  

Income tax benefit at federal statutory tax rate

   $ (37,160   $ (19,074   $ (6,895

Book loss not subject to income tax

     32,801        16,167        13,790   

State and local income taxes

     130        (90     666   

Depletion expense

     (411     (377     (372

Domestic production activities deduction

     —          —          (273

Goodwill impairment

     1,046        —          —     

Bargain purchase gain

     —          —          (4,250

Effective rate change

     —          (532     627   

Valuation allowance

     729        36        (360

Other

     218        (50     475   
  

 

 

   

 

 

   

 

 

 

Income tax (benefit) provision

   $ (2,647   $ (3,920   $ 3,408   
  

 

 

   

 

 

   

 

 

 

The following table summarizes the components of the net deferred income tax liability as of year-end 2013 and 2012:

 

     2013     2012  

Deferred tax assets (liabilities):

    

Mining reclamation reserve

   $ 1,502      $ 1,449   

Accelerated depreciation

     (33,146     (34,733

Net operating loss

     2,227        2,134   

Capital losses on securities

     997        989   

Landfill closure reserve

     (63     (30

Working capital (e.g., accrued compensation, prepaid assets)

     2,399        3,101   
  

 

 

   

 

 

 

Deferred tax liabilities, net

     (26,084     (27,090

Less valuation allowance on loss carryforwards

     (1,826     (1,025
  

 

 

   

 

 

 

Total

   $ (27,910   $ (28,115
  

 

 

   

 

 

 

Included in accompanying consolidated balance sheets under the following captions:

    

Other current assets

   $ 2,316      $ 2,275   

Other noncurrent liability

     (30,226     (30,390
  

 

 

   

 

 

 

Total

   $ (27,910   $ (28,115
  

 

 

   

 

 

 

 

73


In assessing the realizability of deferred tax assets as of year-end 2013 and 2012, management considers whether it is more likely than not that some portion or all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible (including the effect of available carryback and carryforward periods), projected future taxable income and tax-planning strategies in making this assessment. Management anticipates the deferred income tax asset related to losses on securities and net operating losses will not be fully utilized before their expiration in 2014; therefore, a valuation allowance has been recorded as of year-end 2013 and 2012. In 2011, $0.8 million of capital loss was carried back for a tax benefit recovery of $0.3 million. The remaining capital loss of $1.0 million is not expected to be utilized; therefore, the remaining balance has been fully reserved in the valuation allowance as of year-end 2013. At December 28, 2013, the Company has net operating loss carryforwards for federal and state income tax purposes of $5.2 million and $0.7 million, respectively, which are available to offset future federal and state taxable income, if any, through 2033.

Summit Materials does not have any uncertain tax positions as of December 28, 2013. Tax years from 2010 to 2013 remain open and subject to audit by federal and state tax authorities. No income tax expense or benefit was recognized in other comprehensive loss in 2013, 2012 or 2011.

(11) Employee Benefit Plans

Deferred Compensation Plan —The Company sponsors employee 401(k) savings plans for all salaried employees and certain union employees. The plans provide for various required and discretionary Company matches of employees’ eligible compensation contributed to the plans. The expense for all defined contribution plans amounted to $2.3 million, $2.2 million and $1.9 million for the years ended December 28, 2013, December 29, 2012 and December 31, 2011, respectively.

Defined Benefit and Other Postretirement Benefits Plans —The Company’s subsidiary, Continental Cement, sponsors two noncontributory defined benefit pension plans for hourly and salaried employees. The salaried employee pension plan was closed to new participants and frozen in January 2000 and the hourly employee pension plan was closed to new participants in May 2003 and frozen in January 2014. Pension benefits for certain eligible hourly employees are based on a monthly pension factor for each year of credited service. Pension benefits for certain eligible salaried employees are generally based on years of service and average eligible compensation.

Continental Cement also sponsors unfunded healthcare and life insurance benefits plan for certain eligible retired employees. Effective January 1, 2012, the Company eliminated all future retiree health and life coverage for active salaried, nonunion hourly and certain union employees that retire on or after January 1, 2012. Effective January 1, 2014, the plan was amended to eliminate all future retiree health and life coverage for the remaining union employees.

The funded status of the pension and other postretirement benefit plans is recognized in the consolidated balance sheets as the difference between the fair value of plan assets and the benefit obligations. For defined benefit pension plans, the benefit obligation is the projected benefit obligation (“PBO”) and for the other postretirement benefit plans, the benefit obligation is the accumulated postretirement benefit obligation (“APBO”). The PBO represents the actuarial present value of benefits expected to be paid upon retirement based on estimated future compensation levels. However, since the plans’ participants are not subject to future compensation increases, the plans’ PBO equals the APBO. The APBO represents the actuarial present value of postretirement benefits attributed to employee services already rendered. The fair value of plan assets represents the current market value of assets held by an irrevocable trust fund for the sole benefit of participants. The measurement of the benefit obligations are based on the Company’s estimates and actuarial valuations. These valuations reflect the terms of the plan and use participant-specific information, such as compensation, age and years of service, as well as certain assumptions that require significant judgment, including estimates of discount rates, expected return on plan assets, rate of compensation increases, interest-crediting rates and mortality rates.

 

74


The Company uses its fiscal year-end as the measurement date for its defined benefit pension and other postretirement benefit plans.

Obligations and Funded Status —The following information is as of year-end 2013 and 2012 and for the years ended December 28, 2013, December 29, 2012 and December 31, 2011:

 

     2013     2012  
     Pension     Other     Pension     Other  
     benefits     benefits     benefits     benefits  

Change in benefit obligations:

        

Beginning of period

   $ 28,674      $ 15,810      $ 26,514      $ 14,467   

Service cost

     295        236        276        207   

Interest cost

     963        513        1,055        585   

Actuarial (gain) loss

     (2,674     (1,048     2,347        1,597   

Special termination benefits

     —          39        —          —     

Benefits paid

     (1,614     (1,395     (1,518     (1,046
  

 

 

   

 

 

   

 

 

   

 

 

 

End of period

     25,644        14,155        28,674        15,810   
  

 

 

   

 

 

   

 

 

   

 

 

 

Change in fair value of plan assets:

        

Beginning of period

     17,863        —          16,639        —     

Actual return on plan assets

     1,512        —          1,205        —     

Employer contributions

     1,313        1,395        1,537        1,046   

Benefits paid

     (1,614     (1,395     (1,518     (1,046
  

 

 

   

 

 

   

 

 

   

 

 

 

End of period

     19,074        —          17,863        —     
  

 

 

   

 

 

   

 

 

   

 

 

 

Funded status of plans

   $ (6,570   $ (14,155   $ (10,811   $ (15,810
  

 

 

   

 

 

   

 

 

   

 

 

 

Current liabilities

   $ —        $ (1,268   $ —        $ (1,055

Noncurrent liabilities

     (6,570     (12,887     (10,811     (14,755
  

 

 

   

 

 

   

 

 

   

 

 

 

Liability recognized

   $ (6,570   $ (14,155   $ (10,811   $ (15,810
  

 

 

   

 

 

   

 

 

   

 

 

 

Amounts recognized in accumulated other comprehensive income:

        

Net actuarial loss

   $ 4,831      $ 4,139      $ 8,056      $ 5,501   

Prior service cost

     —          (1,346     —          (1,526
  

 

 

   

 

 

   

 

 

   

 

 

 

Total amount recognized

   $ 4,831      $ 2,793      $ 8,056      $ 3,975   
  

 

 

   

 

 

   

 

 

   

 

 

 

 

75


The amount recognized in accumulated other comprehensive income (“AOCI”) is the actuarial loss and prior service cost, which has not yet been recognized in periodic benefit cost, adjusted for amounts allocated to the redeemable noncontrolling interest. At December 28, 2013, the actuarial loss expected to be amortized from AOCI to periodic benefit cost in 2014 is $0.1 million and $0.2 million for the pension and postretirement obligations, respectively.

 

     2013     2012     2011  
     Pension     Other     Pension     Other     Pension     Other  
     benefits     benefits     benefits     benefits     benefits     benefits  

Amounts recognized in other comprehensive (gain) loss:

            

Net actuarial (gain) loss

   $ (2,838   $ (1,048   $ 2,444      $ 1,597      $ 4,066      $ 3,390   

Prior service cost

     —          180        —          —          —          (1,705

Amortization of prior year service cost

     —          —          —          180        —          —     

Amortization of (gain) loss

     (387     (314     (261     (312     (5     (71
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total amount recognized

   $ (3,225   $ (1,182   $ 2,183      $ 1,465      $ 4,061      $ 1,614   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Components of net periodic benefit cost:

            

Service cost

   $ 295      $ 236      $ 276      $ 207      $ 275      $ 227   

Interest cost

     963        513        1,055        585        1,161        710   

Amortization of loss

     387        314        262        312        5        69   

Expected return on plan assets

     (1,348     —          (1,301     (180     (1,400     —     

Special termination benefits

     —          39        —          —          —          —     

Amortization of prior service credit

     —          (180     —          —          —          —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net periodic benefit cost

   $ 297      $ 922      $ 292      $ 924      $ 41      $ 1,006   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Assumptions— Weighted-average assumptions used to determine the benefit obligations as of year-end 2013 and 2012 are:

 

     2013    2012
     Pension
benefits
   Other
benefits
   Pension
benefits
   Other
benefits

Discount rate

   4.21% - 4.46%    4.33%    3.30% - 3.57%    3.41%

Expected long-term rate of return on plan assets

   7.50%    N/A    7.50%    N/A

Weighted-average assumptions used to determine net periodic benefit cost for years ended December 28, 2013, December 29, 2012 and December 31, 2011:

 

     2013    2012    2011
     Pension
benefits
   Other
benefits
   Pension
benefits
   Other
benefits
   Pension
benefits
   Other
benefits

Discount rate

   3.30% - 3.57%    3.41%    3.89% - 4.07%    4.00%    4.94% - 5.12.%    5.07%

Expected long-term rate of return on plan assets

   7.50%    N/A    7.50%    N/A    8.50%    N/A

The expected long-term return on plan assets is based upon the Plans’ consideration of historical and forward-looking returns and the Company’s estimation of what a portfolio, with the target allocation described below, will earn over a long-term horizon. The discount rate is derived using the Citigroup Pension Discount Curve.

 

76


Assumed health care cost trend rates are 9% grading to 7% and 9% grading to 7% as of year-end 2013 and 2012, respectively. Assumed health care cost trend rates have a significant effect on the amounts reported for the Company’s post retirement medical and life plans. A one percentage-point change in assumed health care cost trend rates would have the following effects as of year-end 2013 and 2012:

 

     2013     2012  
     Increase      Decrease     Increase      Decrease  

Total service cost and interest cost components

   $ 66       $ (55   $ 73       $ (63

Estimated APBO

     1,251         (1,073     1,555         (1,331

Plan Assets —The defined benefit pension plans’ (the “Plans”) investment strategy is to minimize investment risk while generating acceptable returns. The Plans currently invest a relatively high proportion of the plan assets in fixed income securities, while the remainder is invested in equity securities, cash reserves and precious metals. The equity securities are diversified into funds with growth and value investment strategies. The target allocation for plan assets is as follows: equity securities – 30%; fixed income securities –63%; cash reserves –5%; and precious metals –2%. The Plans’ current investment allocations are within the tolerance of the target allocation. The Company had no Level 3 investments as of or for the years ended December 28, 2013 and December 29, 2012.

At year-end 2013 and 2012, the Plans’ assets were invested predominantly in fixed-income securities and publicly traded equities, but may invest in other asset classes in the future subject to the parameters of the investment policy. The Plans’ investments in fixed-income assets include U.S. Treasury and U.S. agency securities and corporate bonds. The Plans’ investments in equity assets include U.S. and international securities and equity funds. The Company estimates the fair value of the Plans’ assets using various valuation techniques and, to the extent available, quoted market prices in active markets or observable market inputs. The descriptions and fair value methodologies for the Plans’ assets are as follows:

Fixed Income Securities —Corporate and government bonds are classified as Level 2 assets, as they are either valued at quoted market prices from observable pricing sources at the reporting date or valued based upon comparable securities with similar yields and credit ratings.

Equity Securities —Equity securities are valued at the closing market price reported on a U.S. exchange where the security is actively traded and are therefore classified as Level 1 assets.

Cash —The carrying amounts of cash approximate fair value due to the short-term maturity.

Precious Metals— Precious metals are valued at the closing market price reported on a U.S. exchange where the security is actively traded and are therefore classified as Level 1 assets.

 

77


The fair value of the Company’s pension plans’ assets by asset class and fair value hierarchy level as of year-end 2013 and 2012 are as follows:

 

     2013  
     Total fair
value
     Quoted prices in active
markets for identical
assets (Level 1)
     Observable
inputs (Level 2)
 

Fixed income securities:

        

Intermediate—government

   $ 1,647       $ —         $ 1,647   

Intermediate—corporate

     3,138         —           3,138   

Short-term—government

     2,168         —           2,168   

Short-term—corporate

     4,040         —           4,040   

Equity securities:

        

U.S. Large cap value

     1,221         1,221         —     

U.S. Large cap growth

     1,536         1,536         —     

U.S. Mid cap value

     600         600         —     

U.S. Mid cap growth

     603         603         —     

U.S. Small cap value

     610         610         —     

U.S. Small cap growth

     599         599         —     

International

     889         889         —     

Cash

     1,665         1,665         —     

Precious metals

     358         358         —     
  

 

 

    

 

 

    

 

 

 

Total

   $ 19,074       $ 8,081       $ 10,993   
  

 

 

    

 

 

    

 

 

 
     2012  
     Total fair
value
     Quoted prices in active
markets for identical
assets (Level 1)
     Observable
inputs (Level 2)
 

Fixed income securities:

        

Intermediate—government

   $ 1,247       $ —         $ 1,247   

Intermediate—corporate

     4,402         —           4,402   

Short-term—government

     2,038         —           2,038   

Short-term—corporate

     3,123         —           3,123   

Equity securities:

        

U.S. Large cap value

     1,063         1,063         —     

U.S. Large cap growth

     1,037         1,037         —     

U.S. Mid cap value

     542         542         —     

U.S. Mid cap growth

     536         536         —     

U.S. Small cap value

     546         546         —     

U.S. Small cap growth

     539         539         —     

International

     1,134         1,134         —     

Cash

     1,656         1,656         —     
  

 

 

    

 

 

    

 

 

 

Total

   $ 17,863       $ 7,053       $ 10,810   
  

 

 

    

 

 

    

 

 

 

Cash Flows —The Company expects to contribute approximately $1.0 million and $1.3 million in 2014 to its pension plans and other postretirement benefit plans, respectively.

 

78


The estimated benefit payments for each of the next five years and the five-year period thereafter are as follows:

 

     Pension
benefits
     Other
benefits
 

2014

   $ 1,694       $ 1,269   

2015

     1,704         1,109   

2016

     1,739         1,130   

2017

     1,737         963   

2018

     1,774         1,018   

2019 - 2023

     8,667         4,512   
  

 

 

    

 

 

 

Total

   $ 17,315       $ 10,001   
  

 

 

    

 

 

 

(12) Accrued Mining and Landfill Reclamation

The Company has asset retirement obligations arising from regulatory requirements to perform certain reclamation activities at the time that certain quarries and landfills are closed, which are primarily included in other noncurrent liabilities on the consolidated balance sheets. The current portion of the liabilities, $0.5 million and $0.4 million as of December 28, 2013 and December 29, 2012, respectively, is included in accrued and other liabilities on the consolidated balance sheets. The liability was initially measured at fair value and subsequently is adjusted for accretion expense, payments and changes in the amount or timing of the estimated cash flows. The corresponding asset retirement costs are capitalized as part of the carrying amount of the related long-lived asset and depreciated over the asset’s remaining useful life. The following table presents the activity for the asset retirement obligations for the years ended December 28, 2013 and December 29, 2012:

 

     2013     2012  

Beginning balance

   $ 14,844      $ 13,328   

Acquired obligations

     286        364   

Change in cost estimate

     721        604   

Settlement of reclamation obligations

     (1,201     (77

Additional liabilities incurred

     414        —     

Accretion expense

     717        625   
  

 

 

   

 

 

 

Ending balance

   $ 15,781      $ 14,844   
  

 

 

   

 

 

 

(13) Commitments and Contingencies

Litigation and Claims —Summit Materials is party to certain legal actions arising from the ordinary course of business activities. In the opinion of management, these actions are without merit or the ultimate disposition, if any, resulting from them will not have a material effect on Summit Materials’ consolidated financial position, results of operations or liquidity. Summit Materials’ policy is to record legal fees as incurred.

The Company is obligated under an indemnification agreement entered into with the sellers of Harper Contracting, Inc., Harper Sand and Gravel, Inc., Harper Excavating, Inc., Harper Ready Mix Company, Inc. and Harper Investments, Inc. (collectively, “Harper”) for the sellers’ ownership interests in a joint venture agreement. Summit Materials has the rights to any benefits under the joint venture as well as the assumption of any obligations, but does not own equity interests in the joint venture. The joint venture has incurred significant losses on a highway project in Utah, which have resulted in requests for funding from the joint venture partners and ultimately from the Company. Through year-end 2013, the Company has funded $8.8 million, $4.0 million in 2012 and $4.8 million in 2011. In 2012 and 2011, the Company recognized losses on the indemnification agreement of $8.0 million and $1.9 million, respectively, which are included in general and administrative expenses. As of year-end 2013 and 2012, an accrual of $4.3 million was recorded in other noncurrent liabilities as management’s best estimate of future funding obligations.

In February 2011, the Company incurred a property loss related to a sunken barge with cement product aboard. In the year-ended December 28, 2013, the Company recognized $0.8 million of charges for lost product aboard the barge and costs to remove the barge from the waterway. As of December 28, 2013 and December 29, 2012, $0.9 million is included in accrued expenses as management’s best estimate of the remaining costs to remove the barge.

 

79


Environmental Remediation —Summit Materials’ mining operations are subject to and affected by federal, state and local laws and regulations relating to the environment, health and safety and other regulatory matters. These operations require environmental operating permits, which are subject to modification, renewal and revocation. Summit Materials regularly monitors and reviews its operations, procedures and policies for compliance with these laws and regulations. Despite these compliance efforts, risk of environmental liability is inherent in the operation of Summit Materials’ business, as it is with other companies engaged in similar businesses and there can be no assurance that environmental liabilities will not have a material adverse effect on Summit Materials’ consolidated financial position, results of operations or liquidity.

Other —During the course of business, there may be revisions to project costs and conditions that can give rise to change orders. Revisions can also result in claims we might make against the customer or a subcontractor to recover project variances that have not been satisfactorily addressed through change orders with the customer. As of year-end 2013 and 2012, unapproved change orders and claims were $3.2 million ($0.5 million in costs and estimated earnings in excess of billings and $2.7 million in other assets) and $4.8 million ($1.6 million in costs and estimated earnings in excess of billings and $3.2 million in other assets), respectively.

The Company is obligated under various firm purchase commitments for certain raw materials and services that are in the ordinary course of business. Management does not expect any significant changes in the market value of these goods and services during the commitment period that would have a material adverse effect on the financial position, results of operations, and cash flows of the Company. The terms of the purchase commitments are generally less than one year.

(14) Related-Party Transactions

The Company incurred management fees paid to Blackstone Management Partners L.L.C. (“BMP”) totaling $2.6 million, $2.1 million and $3.0 million in 2013, 2012 and 2011, respectively, under terms of an agreement dated July 30, 2009, between Parent and BMP. Under the terms of the agreement, BMP is permitted to, and has, assigned a portion of the fees to which it is entitled to receive to Silverhawk Summit, L.P. and to certain members of management. The fees were paid for consultancy services related to acquisition activities and are included in general and administrative expenses.

The Company purchased equipment from a noncontrolling member of Continental Cement for approximately $2.3 million, inclusive of $0.1 million of interest, in 2011, which was paid for in 2012.

Summit Materials earned revenue of $0.6 million, $7.9 million and $8.6 million and incurred costs of $0.2 million, $0.2 million and $0.7 million in connection with several transactions with unconsolidated affiliates for the years ended December 28, 2013, December 29, 2012 and December 31, 2011, respectively. As of December 28, 2013 and December 29, 2012, accounts receivable from affiliates was $0.4 million and $1.9 million, respectively, and accounts payable to affiliates was zero and $0.2 million, respectively.

Cement sales to companies owned by certain noncontrolling members of Continental Cement were approximately $12.7 million, $12.5 million and $9.5 million for the years ended December 28, 2013, December 29, 2012 and December 2011, respectively, and accounts receivable due from these parties were approximately $0.2 million and $1.0 million as of December 28, 2013 and December 29, 2012, respectively.

As of year-end 2013 and 2012, the Company had accrued interest payments of $0.7 million and $2.1 million, respectively, due to a certain noncontrolling member for a related-party note, which is expected to be paid in 2014. The principal balance on the note was repaid as part of the January 2012 financing transactions.

 

80


(15) Acquisition-Related Liabilities

A number of acquisition-related liabilities have been recorded subject to terms in the relevant purchase agreements. There are three main categories of such obligations, deferred consideration, noncompete payments and earn-out obligations. Noncompete payments have been accrued where certain former owners of newly acquired companies have entered into standard noncompete arrangements. Subject to terms and conditions stated in these noncompete agreements, payments are generally made over a five-year period. Deferred consideration is purchase price consideration paid in the future as agreed to in the purchase agreement and is not contingent on future events. Deferred consideration is scheduled to be paid in years ranging from 5 to 20 years in either monthly, quarterly or annual installments. The remaining payments due under these noncompete and deferred consideration agreements are as follows:

 

2014

   $ 10,790   

2015

     6,742   

2016

     5,950   

2017

     5,910   

2018

     5,370   

Thereafter

     9,963   
  

 

 

 

Total scheduled payments

     44,725   

Present value adjustments

     (12,242
  

 

 

 

Total noncompete obligations and deferred consideration

   $ 32,483   
  

 

 

 

Accretion on the deferred consideration and noncompete obligations is recorded in interest expense.

(16) Supplemental Cash Flow Information

Supplemental cash flow information for the years ended December 28, 2013, December 29, 2012 and December 31, 2011 is as follows:

 

     2013      2012      2011  

Cash payments:

        

Interest

   $ 52,001       $ 36,357       $ 41,790   

Income taxes

     457         799         5,608   

(17) Leasing Arrangements

Rent expense, including short-term rentals, during the years ended December 28, 2013, December 29, 2012 and December 31, 2011 was $4.0 million, $3.5 million and $4.3 million, respectively. The Company has lease agreements associated with quarry facilities under which royalty payments are made. The payments are generally based on tons sold in a particular period; however, certain agreements have minimum annual payments. Royalty expense recorded in cost of revenue during the years ended December 28, 2013, December 29, 2012 and December 31, 2011 was $4.5 million, $3.9 million and $3.1 million, respectively. Minimum contractual commitments under long-term operating leases, which primarily relate to land, plant and equipment and under royalty agreements as of December 28, 2013, are as follows:

 

     Operating
Leases
     Royalty
Agreements
 

2014

   $ 4,034       $ 2,044   

2015

     3,890         2,065   

2016

     3,098         1,974   

2017

     2,376         2,047   

2018

     1,983         1,434   

 

81


(18) Redeemable Noncontrolling Interest

The Company owns 100 Class A Units of Continental Cement, which represent an approximately 70% economic interest and have a preference in liquidation to the Class B Units. Continental Cement issued 100,000,000 Class B Units in May 2010, which remain outstanding and represent an approximately 30% economic interest.

Continental Cement’s Class A Units include a cumulative distribution preference which requires, to the extent distributions are authorized by its Board of Directors, Continental Cement Class A Units receive, prior to any distributions to the Class B Unit holders, a priority return of 11% accruing daily and compounding annually on each anniversary of the date of issuance to Class A Unit holders. To the extent the priority return is not made in a given year, the amount of the priority return will increase the liquidation preference of the Class A Units up to an 80% allowable sharing percentage in distributions and liquidation proceeds. The Company holds all the Class A Units. No distributions are currently anticipated.

The Continental Cement Amended and Restated Limited Liability Company Agreement (as amended, the “LLC Agreement”) provides Summit Materials with a call option that allows the Company to call the Class B Units held by the owners of Continental Cement prior to Summit Materials’ purchase of the Class A Units (“Rollover Members”), at a strike price that approximates fair value, on the earlier of May 2016, on the date that Summit Materials affects an initial public offering or upon any other change of control of Summit Materials. The Rollover Members have a put option that allows them to put the Class B Units to Summit Materials, at a strike price that approximates fair value, exercisable if there is a change of control of the Summit Materials Class A Units, or after May 2016. Finally, the LLC Agreement includes transfer restrictions which prohibit the Rollover Members from transferring their Class B Units without the consent of the Board of Continental Cement.

Because the Class B Units can be put to Continental Cement by the Rollover Members in the future based on the passage of time, which can be accelerated upon the occurrence of a contingent event, Summit Materials’ noncontrolling interest is classified in temporary equity. The redemption value is based upon the estimated fair value of Continental Cement, which is valued using Level 3 inputs. Summit Materials elected to accrete changes in the redemption value of the noncontrolling interest over the period from the date of issuance to the earliest anticipated redemption date of the instrument, which is currently May 2016, using an interest method. The accretion is as an adjustment to the consolidated accumulated deficit. The redemption value of the redeemable noncontrolling interest as of year-end 2013 and 2012 approximated its carrying value.

(19) Employee Long Term Incentive Plan

Certain employees of the Company hold Class D unit interests in Parent that provide rights to cash distributions based on a predetermined distribution formula upon the general partner of Parent declaring a distribution.

Certain of the Class D units vest with the passage of time (time-vesting interests) and the remaining vest when certain investment returns are achieved by the investors of Parent (performance-vesting interests). Of the time-vesting-interests, 20% vest on the first anniversary and the remaining 80% vest monthly over a period of four years following the first anniversary date. Units that are not vested in accordance with their terms within eight years are automatically forfeited without consideration.

If the employee leaves the Company, the Company can (1) purchase the vested Class D units for a lump sum payment provided certain conditions have been met or (2) elect to convert all of the employee’s Class D units into a right to receive future distributions capped at a termination amount. The termination amount is determined as an amount equal to the fair market value of the Class D unit holder’s vested interests minus any amounts already distributed to the Class D unit holders respective of those Class D units plus interest on the difference between such fair market value and amounts already distributed. The fair value of the time-vesting Class D units granted in 2013, 2012 and 2011 totaled $1.6 million, $1.1 million and $3.4 million, respectively. The weighted-average grant-date fair value in 2013, 2012 and 2011 was $2,786, $3,761 and $3,876, respectively. The following table summarizes information for the Class D unit interests:

 

82


     Time-vesting Interests      Performance-vesting
Interests
 
     Number of
units
    Weighted
average grant-
date fair value
per unit
     Number of
units
    Weighted
average grant-
date fair value
per unit
 

Beginning balance - December 29, 2012

     1,692      $ 3,864         4,202      $ 3,087   

Granted

     584        2,786         759        2,314   

Vested

     (772     3,896         —          —     

Forfeited

     (2     3,893         (5     3,176   

Cancelled

     (61     2,208         (79     1,388   
  

 

 

      

 

 

   

Balance - December 28, 2013

     1,441           4,877     
  

 

 

      

 

 

   

The estimated fair value at December 28, 2013 of shares vested during 2013 was $2.2 million. As of year-end 2013 and 2012, the cumulative amount of units vested total 2,531 and 1,732, respectively. The fair value of the Class D units is estimated as of the grant date using Monte Carlo simulations, which requires the input of subjective assumptions, including the expected volatility and the expected term. The following table presents the weighted average assumptions used to estimate the fair value of grants in 2013, 2012 and 2011:

 

     2013      2012      2011  

Class D Units

        

Risk-free interest rate

     0.50%         1.62%         1.71% - 2.39%   

Dividend yield

     None         None         None   

Volatility

     58%         47%         42% - 49%   

Expected term

     4 years         6 - 8 years         6 - 8 years   

The risk-free rate is based on the yield at the date of grant of a U.S. Treasury security with a maturity period approximating the expected term. As the Company has no plans to issue regular dividends, a dividend yield of zero was used. The volatility assumption is based on reported data of a peer group of publically traded companies for which historical information was available adjusted for the Company’s capital structure. The expected term is based on expectations about future exercises and represents the period of time that the units granted are expected to be outstanding.

Compensation expense for time-vesting interest granted is based on the grant-date fair value. The Company recognizes these compensation costs on a straight-line basis over the service period, which is generally the vesting period of the award. A forfeiture rate assumption is factored into the compensation cost based on historical forfeitures. Compensation expense for performance-vesting interests would be recognized based on the grant date fair value. However, no compensation expense has been recognized for the performance-vesting interests, as management does not believe it is currently probable that certain investment returns, the performance criteria, will be achieved.

Share-based compensation expense, which is recognized in general and administrative expenses, totaled $2.3 million, $2.5 million and $2.5 million in the years ended December 28, 2013, December 29, 2012 and December 31, 2011, respectively. As of December 28, 2013, unrecognized compensation cost totaled $4.6 million. The weighted average remaining contractual term over which the unrecognized compensation cost is to be recognized is 2.6 years as of year-end 2013.

(20) Segment Information

The Company has determined that it has three operating segments, which are its reportable segments: Central; West; and East regions. These segments are consistent with the Company’s management reporting structure. The operating results of each segment are regularly reviewed and evaluated separately by the Chief Executive Officer, the Company’s Chief Operating Decision Maker (“CODM”). The CODM primarily evaluates the performance of its segments and allocates resources to them based on segment profit, which is computed as earnings from continuing operations before interest, taxes, depreciation, depletion, amortization, accretion and goodwill impairment. In addition, certain items such as management fees are excluded from the calculation of segment profit.

Each region has several acquired subsidiaries that are engaged in various activities including quarry mining, aggregate production and contracting. Assets employed by segment include assets directly identified with those operations. Corporate assets consist primarily of cash, property, plant and equipment for corporate operations and other assets not directly identifiable with a reportable business segment. The accounting policies applicable to each segment are consistent with those used in the consolidated financial statements.

 

83


The following tables display selected financial data for the Company’s reportable business segments for the following fiscal years:

 

     2013     2012     2011  

Revenue:

      

Central region

   $ 329,621      $ 302,113      $ 264,008   

West region

     426,195        484,922        362,577   

East region

     160,385        139,219        162,491   
  

 

 

   

 

 

   

 

 

 

Total revenue

   $ 916,201      $ 926,254      $ 789,076   
  

 

 

   

 

 

   

 

 

 
     2013     2012     2011  

Segment profit (loss):

      

Central region

   $ 72,918      $ 65,767      $ 65,651   

West region

     28,607        14,429        36,442   

East region

     15,134        10,782        15,504   

Corporate and other (1)

     (24,878     (15,560     (9,877
  

 

 

   

 

 

   

 

 

 

Total reportable segments and corporate

     91,781        75,418        107,720   

Interest expense

     56,443        58,079        47,784   

Depreciation, depletion, amortization and accretion

     72,934        68,290        61,377   

Goodwill impairment

     68,202        —          —     
  

 

 

   

 

 

   

 

 

 

Loss from continuing operations before taxes

   $ (105,798   $ (50,951   $ (1,441
  

 

 

   

 

 

   

 

 

 

 

(1)  

Corporate results primarily consist of compensation and office expenses for employees included in the Company’s headquarters and transactions costs.

 

     2013     2012     2011  

Cash paid for capital expenditures:

      

Central region

   $ 33,030      $ 20,996      $ 20,078   

West region

     21,856        14,993        9,256   

East region

     7,753        8,736        9,311   
  

 

 

   

 

 

   

 

 

 

Total reportable segments

     62,639        44,725        38,645   

Corporate and other

     3,360        763        11   
  

 

 

   

 

 

   

 

 

 

Total capital expenditures

   $ 65,999      $ 45,488      $ 38,656   
  

 

 

   

 

 

   

 

 

 
     2013     2012     2011  

Depreciation, depletion, amortization and accretion:

      

Central region

   $ 33,808      $ 30,215      $ 27,646   

West region

     24,167        23,771        19,706   

East region

     14,493        14,223        13,938   
  

 

 

   

 

 

   

 

 

 

Total reportable segments

     72,468        68,209        61,290   

Corporate and other

     466        81        87   
  

 

 

   

 

 

   

 

 

 

Total depreciation, depletion, amortization and accretion

   $ 72,934      $ 68,290      $ 61,377   
  

 

 

   

 

 

   

 

 

 
     2013     2012     2011  

Total assets:

      

Central region

   $ 657,421      $ 610,003      $ 587,341   

West region

     383,544        428,115        451,017   

East region

     192,486        224,603        238,018   
  

 

 

   

 

 

   

 

 

 

Total reportable segments

     1,233,451        1,262,721        1,276,376   

Corporate and other

     14,343        18,492        7,889   
  

 

 

   

 

 

   

 

 

 

Total assets

   $ 1,247,794      $ 1,281,213      $ 1,284,265   
  

 

 

   

 

 

   

 

 

 
     2013     2012     2011  

Revenue by product:*

      

Aggregates

   $ 159,019      $ 146,991      $ 116,082   

Cement

     76,211        77,676        69,664   

Ready-mixed concrete

     112,878        100,941        94,302   

Asphalt

     219,811        242,458        182,952   

Construction and paving

     478,280        505,189        464,866   

Other

     (129,998     (147,001     (138,790
  

 

 

   

 

 

   

 

 

 

Total revenue

   $ 916,201      $ 926,254      $ 789,076   
  

 

 

   

 

 

   

 

 

 

 

* Revenue by product includes intracompany sales transferred at market value. The elimination of intracompany transactions is included in Other.

 

84


(21) Senior Notes’ Guarantor and Non-Guarantor Financial Information

The Company’s 100 percent-owned subsidiary companies (“Wholly-owned Guarantors”) and Continental Cement (“Non Wholly-owned Guarantor”), are named as guarantors (collectively, the “Guarantors”) of the Senior Notes. Other partially-owned subsidiaries do not guarantee the Senior Notes (collectively, the “Non-Guarantors”), including a subsidiary of Continental Cement. The Guarantors provide a joint and several, full and unconditional guarantee of the Senior Notes. There are no significant restrictions on the Company’s ability to obtain funds from any of the Guarantor Subsidiaries in the form of a dividend or loan. Additionally, there are no significant restrictions on a Guarantor Subsidiary’s ability to obtain funds from the Company or its direct or indirect subsidiaries.

The following condensed consolidating balance sheets, statements of operations and cash flows are provided for Summit Materials (referred to as “Parent” in the condensed financial statements below), the Non-Wholly-owned Guarantor, the Wholly-owned Guarantors and the Non-Guarantors. Summit Materials Finance Corp. as a co-issuer of the Senior Notes, had no transactions during the respective periods or assets as of December 28, 2013 and December 29, 2012. Earnings from subsidiaries are included in other income in the condensed consolidated statements of operations below. The financial information may not necessarily be indicative of results of operations, cash flows or financial position had the guarantor or non-guarantor subsidiaries operated as independent entities.

 

85


Condensed Consolidating Balance Sheets

December 28, 2013

 

     Summit
Materials,
LLC
(Parent)
     Non-
Wholly-
owned
Guarantor
     Wholly-
owned
Guarantors
     Non-
Guarantors
     Eliminations     Consolidated  
Assets                 

Current assets:

                

Cash

   $ 10,375       $ 9       $ 3,442       $ 3,631       $ (2,540   $ 14,917   

Accounts receivable, net

     —           4,587         93,102         3,100         (1,452     99,337   

Intercompany receivables

     38,134         3,433         30,787         —           (72,354     —     

Cost and estimated earnings in excess of billings

     —           —           10,539         228         —          10,767   

Inventories

     —           10,402         85,372         658         —          96,432   

Other current assets

     750         444         11,715         272         —          13,181   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total current assets

     49,259         18,875         234,957         7,889         (76,346     234,634   

Property, plant and equipment, net

     3,969         301,908         518,935         6,966         —          831,778   

Goodwill

     —           23,124         102,942         972         —          127,038   

Intangible assets, net

     —           642         14,505         —           —          15,147   

Other assets

     296,494         17,973         37,535         1,303         (314,108     39,197   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total assets

   $ 349,722       $ 362,522       $ 908,874       $ 17,130       $ (390,454   $ 1,247,794   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
Liabilities, Redeemable Noncontrolling Interest and Member’s Interest                 

Current liabilities:

                

Current portion of debt

   $ 26,010       $ 1,018       $ 3,192       $ —         $ —        $ 30,220   

Current portion of acquisition-related liabilities

     2,000         —           8,635         —           —          10,635   

Accounts payable

     5,455         9,387         57,142         1,572         (1,452     72,104   

Accrued expenses

     12,041         9,185         37,342         1,223         (2,540     57,251   

Intercompany payables

     —           —           71,556         798         (72,354     —     

Billings in excess of costs and estimated earnings

     —           —           8,837         426         —          9,263   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total current liabilities

     45,506         19,590         186,704         4,019         (76,346     179,473   

Long-term debt

     19,587         154,590         484,590         —           —          658,767   

Acquisition-related liabilities

     85         —           23,671         —           —          23,756   

Other noncurrent liabilities

     959         20,306         56,215         —           —          77,480   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total liabilities

     66,137         194,486         751,180         4,019         (76,346     939,476   

Redeemable noncontrolling interest

     —           —           —           —           24,767        24,767   

Redeemable members’ interest

     —           23,450         —           —           (23,450     —     

Total member’s interest

     283,585         144,586         157,694         13,111         (315,425     283,551   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total liabilities, redeemable noncontrolling interest and member’s interest

   $ 349,722       $ 362,522       $ 908,874       $ 17,130       $ (390,454   $ 1,247,794   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

 

86


Condensed Consolidating Balance Sheets

December 29, 2012

 

     Summit
Materials,
LLC
(Parent)
     Non-
Wholly-
owned
Guarantor
     Wholly-
owned
Guarantors
     Non-
Guarantors
     Eliminations     Consolidated  
Assets                 

Current assets:

                

Cash

   $ 697       $ 397       $ 30,981       $ 680       $ (5,324   $ 27,431   

Accounts receivable, net

     —           7,421         90,765         3,255         (1,143     100,298   

Intercompany receivables

     14,931         15,557         9,018         —           (39,506     —     

Cost and estimated earnings in excess of billings

     —           —           11,428         147         —          11,575   

Inventories

     —           7,073         84,555         1,349         —          92,977   

Other current assets

     25         726         8,447         2,409         (1,539     10,068   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total current assets

     15,653         31,174         235,194         7,840         (47,512     242,349   

Property, plant and equipment, net

     1,074         287,677         517,994         6,862         —          813,607   

Goodwill

     —           23,124         155,024         972         —          179,120   

Intangible assets, net

     —           742         7,864         —           —          8,606   

Other assets

     374,581         11,891         161,442         1,315         (511,698     37,531   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total assets

   $ 391,308       $ 354,608       $ 1,077,518       $ 16,989       $ (559,210   $ 1,281,213   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 
Liabilities, Redeemable Noncontrolling Interest and Member’s Interest                 

Current liabilities:

                

Current portion of debt

   $ —         $ 965       $ 3,035       $ —         $ —        $ 4,000   

Current portion of acquisition-related liabilities

     —           —           9,525         —           —          9,525   

Accounts payable

     2,745         6,715         51,179         2,138         (1,143     61,634   

Accrued expenses

     6,877         10,742         38,050         1,015         (6,862     49,822   

Intercompany payables

     —           —           33,396         6,110         (39,506     —     

Billings in excess of costs and estimated earnings

     —           —           6,656         270         —          6,926   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total current liabilities

     9,622         18,422         141,841         9,533         (47,511     131,907   

Long-term debt

     —           155,394         480,449         —           —          635,843   

Acquisition-related liabilities

     —           —           23,919         —           —          23,919   

Other noncurrent liabilities

     395         27,091         56,780         —           —          84,266   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total liabilities

     10,017         200,907         702,989         9,533         (47,511     875,935   

Redeemable noncontrolling interest

     —           —           —           —           22,850        22,850   

Redeemable members’ interest

     —           22,850         —           —           (22,850     —     

Total member’s interest

     381,291         130,851         374,529         7,456         (511,699     382,428   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

Total liabilities, redeemable noncontrolling interest and member’s interest

   $ 391,308       $ 354,608       $ 1,077,518       $ 16,989       $ (559,210   $ 1,281,213   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

   

 

 

 

 

87


Condensed Consolidating Statements of Operations and Comprehensive (Loss) Income

Year ended December 28, 2013

 

     Summit
Materials
LLC
(Parent)
    Non-
Wholly-
owned
Guarantor
    Wholly-
owned
Guarantors
    Non-
Guarantors
     Eliminations     Consolidated  

Total revenue

   $ —        $ 80,759      $ 807,921      $ 41,910       $ (14,389   $ 916,201   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

Cost of revenue (excluding items shown separately below)

     —          55,241        611,799        24,401         (14,389     677,052   

General and administrative expenses

     7,241        7,673        125,778        1,308         —          142,000   

Goodwill impairment

     —          —          68,202        —           —          68,202   

Depreciation, depletion, amortization and accretion

     465        11,378        60,078        1,013         —          72,934   

Transaction costs

     —          —          3,990        —           —          3,990   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

Operating (loss) income

     (7,706     6,467        (61,926     15,188         —          (47,977

Other expense (income), net

     99,085        (3,737     (3,410     274         (90,834     1,378   

Interest expense

     —          10,702        49,591        382         (4,232     56,443   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

(Loss) income from continuing operations before taxes

     (106,791     (498     (108,107     14,532         95,066        (105,798

Income tax expense

     —          —          (2,647     —           —          (2,647
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

(Loss) income from continuing operations

     (106,791     (498     (105,460     14,532         95,066        (103,151

Loss from discontinued operations

     —          —          528        —           —          528   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

Net (loss) income

     (106,791     (498     (105,988     14,532         95,066        (103,679

Net income attributable to noncontrolling interest

     —          —          —          —           3,112        3,112   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

Net (loss) income attributable to member of Summit Materials, LLC

   $ (106,791   $ (498   $ (105,988   $ 14,532       $ 91,954      $ (106,791
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

Comprehensive (loss) income attributable to member of Summit Materials, LLC

   $ (106,791   $ 3,909      $ (105,988   $ 14,532       $ 90,632      $ (103,706
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

 

88


Condensed Consolidating Statements of Operations and Comprehensive (Loss) Income

Year ended December 29, 2012

 

     Summit
Materials
LLC
(Parent)
    Non-
Wholly-
owned
Guarantor
    Wholly-
owned
Guarantors
    Non-
Guarantors
    Eliminations     Consolidated  

Total revenue

   $ —        $ 81,516      $ 824,796      $ 33,074      $ (13,132   $ 926,254   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cost of revenue (excluding items shown separately below)

     —          58,319        649,577        18,582        (13,132     713,346   

General and administrative expenses

     8        6,235        119,645        1,327        —          127,215   

Depreciation, depletion, amortization and accretion

     81        10,093        57,080        1,036        —          68,290   

Transaction costs

     —          —          1,988        —          —          1,988   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Operating (loss) income

     (89     6,869        (3,494     12,129        —          15,415   

Other expense (income), net

     52,400        (2,065     6,630        (101     (48,577     8,287   

Interest expense

     —          12,045        47,293        633        (1,892     58,079   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

(Loss) income from continuing operations before taxes

     (52,489     (3,111     (57,417     11,597        50,469        (50,951

Income tax expense

     5        —          (3,925     —          —          (3,920
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

(Loss) income from continuing operations

     (52,494     (3,111     (53,492     11,597        50,469        (47,031

Loss from discontinued operations

     —          —          3,546        —          —          3,546   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net (loss) income

     (52,494     (3,111     (57,038     11,597        50,469        (50,577

Net income attributable to noncontrolling interest

     —          —          —          —          1,919        1,919   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net (loss) income attributable to member of Summit Materials, LLC

   $ (52,494   $ (3,111   $ (57,038   $ 11,597      $ 48,550      $ (52,496
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Comprehensive (loss) income attributable to member of Summit Materials, LLC

   $ (52,494   $ (6,759   $ (57,038   $ 11,597      $ 49,645      $ (55,049
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

89


Condensed Consolidating Statements of Operations and Comprehensive (Loss) Income

Year ended December 31, 2011

 

     Summit
Materials
LLC
(Parent)
    Non-
Wholly-
owned
Guarantor
    Wholly-
owned
Guarantors
    Non-
Guarantors
     Eliminations     Consolidated  

Total revenue

   $ —        $ 70,064      $ 700,916      $ 21,566       $ (3,470   $ 789,076   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

Cost of revenue (excluding items shown separately below)

     —          41,221        542,699        17,204         (3,470     597,654   

General and administrative expenses

     1,453        3,933        89,011        1,429         —          95,826   

Depreciation, depletion, amortization and accretion

     87        9,697        50,640        953         —          61,377   

Transaction costs

     —          —          9,120        —           —          9,120   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

Operating (loss) income

     (1,540     15,213        9,446        1,980         —          25,099   

Other expense (income), net

     8,510        (61     (24,375     124         (5,442     (21,244

Interest expense

     —          14,004        33,685        647         (552     47,784   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

(Loss) income from continuing operations before taxes

     (10,050     1,270        136        1,209         5,994        (1,441

Income tax expense

     —          —          3,408        —           —          3,408   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

(Loss) income from continuing operations

     (10,050     1,270        (3,272     1,209         5,994        (4,849

Loss from discontinued operations

     —          —          5,201        —           —          5,201   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

Net (loss) income

     (10,050     1,270        (8,473     1,209         5,994        (10,050

Net income attributable to noncontrolling interest

     695        —          695        —           (695     695   
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

Net (loss) income attributable to member of Summit Materials, LLC

   $ (10,745   $ 1,270      $ (9,168   $ 1,209       $ 6,689      $ (10,745
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

Comprehensive (loss) income attributable to member of Summit Materials, LLC

   $ (9,375   $ (4,405   $ (13,473   $ 1,209       $ 10,994      $ (15,050
  

 

 

   

 

 

   

 

 

   

 

 

    

 

 

   

 

 

 

 

90


Condensed Consolidating Statements of Cash Flows

Year ended December 28, 2013

 

     Summit
Materials,
LLC
(Parent)
    Non-
Wholly-
owned
Guarantor
    Wholly-
owned
Guarantors
    Non-
Guarantors
    Eliminations     Consolidated  

Net cash (used for) provided by operating activities

   $ (232   $ 9,003      $ 44,746      $ 12,895      $ —        $ 66,412   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cash flow from investing activities:

            

Acquisitions, net of cash acquired

     —          —          (61,601     —          —          (61,601

Purchase of property, plant and equipment

     (3,359     (24,896     (36,629     (1,115     —          (65,999

Proceeds from the sale of property, plant, and equipment

     —          3        16,020        62        —          16,085   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net cash used for investing activities

     (3,359     (24,893     (82,210     (1,053     —          (111,515
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cash flow from financing activities

            

Net proceeds from debt issuance

     230,817        —          —          —          —          230,817   

Loans received from and payments made on loans from other Summit Companies

     (29,121     15,502        19,726        (8,891     2,784        —     

Payments on long-term debt

     (188,424     —          —          —          —          (188,424

Payments on acquisition-related liabilities

     —          —          (9,801     —          —          (9,801

Other

     (3     —          —          —          —          (3
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net cash provided by (used for) financing activities

     13,269        15,502        9,925        (8,891     2,784        32,589   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net decrease (increase) in cash

     9,678        (388     (27,539     2,951        2,784        (12,514

Cash — Beginning of period

     697        397        30,981        680        (5,324     27,431   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cash— End of period

   $ 10,375      $ 9      $ 3,442      $ 3,631      $ (2,540   $ 14,917   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

91


Condensed Consolidating Statements of Cash Flows

Year ended December 29, 2012

 

     Summit
Materials,
LLC
(Parent)
    Non-
Wholly-
owned
Guarantor
    Wholly-
owned
Guarantors
    Non-
Guarantors
    Eliminations     Consolidated  

Net cash provided by operating activities

   $ 4,845      $ 12,806      $ 36,649      $ 8,217      $ (238   $ 62,279   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cash flow from investing activities:

            

Acquisitions, net of cash acquired

     —          —          (48,757     —          —          (48,757

Purchase of property, plant and equipment

     (762     (12,174     (31,818     (734     —          (45,488

Proceeds from the sale of property, plant, and equipment

     —          69        8,577        190        —          8,836   

Other

     —          —          69        —          —          69   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net cash used for investing activities

     (762     (12,105     (71,929     (544     —          (85,340
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cash flow from financing activities

            

Net proceeds from debt issuance

     713,378        (17     —          —          —          713,361   

Loans received from and payments made on loans from other Summit Companies

     (25,371     (295     39,783        (8,793     (5,324     —     

Payments on long-term debt

     (697,438     —          —          —          —          (697,438

Payments on acquisition-related liabilities

     —          —          (7,519     —          —          (7,519

Other

     (656     —          —          (284     238        (702
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net cash (used for) provided by financing activities

     (10,087     (312     32,264        (9,077     (5,086     7,702   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net decrease (increase) in cash

     (6,004     389        (3,016     (1,404     (5,324     (15,359

Cash — Beginning of period

     6,701        8        33,997        2,084        —          42,790   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cash— End of period

   $ 697      $ 397      $ 30,981      $ 680      $ (5,324   $ 27,431   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

92


Condensed Consolidating Statements of Cash Flows

Year ended December 31, 2011

 

     Summit
Materials,
LLC
(Parent)
    Non-
Wholly-
owned
Guarantor
    Wholly-
owned
Guarantors
    Non-
Guarantors
    Eliminations     Consolidated  

Net cash provided by operating activities

   $ (824   $ 3,808      $ 17,262      $ 2,586      $ 421      $ 23,253   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cash flow from investing activities:

            

Acquisitions, net of cash acquired

     —          —          (161,073     —          —          (161,073

Purchase of property, plant and equipment

     (11     (5,933     (31,210     (1,502     —          (38,656

Proceeds from the sale of property, plant, and equipment

     —          168        6,880        109        —          7,157   

Proceeds from the sale of investments

     —          —          377        (136     —          241   

Cash contribution to affiliates

     (135,530     —          —          —          135,530        —     
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net cash used for investing activities

     (135,541     (5,765     (185,026     (1,529     135,530        (192,331
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cash flow from financing activities

            

Proceeds from investment by member

     103,630        —          135,530        421        (135,951     103,630   

Net proceeds from debt issuance

     —          36,456        60,292        —          —          96,748   

Payments on long-term debt

     —          (34,500     (14,500     —          —          (49,000

Payments on acquisition-related liabilities

     —          —          (4,593     —          —          (4,593

Other

     —          —          —          (10     —          (10
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net cash (used for) provided by financing activities

     103,630        1,956        176,729        411        (135,951     146,775   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net decrease (increase) in cash

     (32,735     (1     8,965        1,468        —          (22,303

Cash — Beginning of period

     39,436        9        25,032        616        —          65,093   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Cash— End of period

   $ 6,701      $ 8      $ 33,997      $ 2,084      $ —        $ 42,790   
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

(22) Supplementary Data (Unaudited)

Supplemental financial information (unaudited) by quarter is as follows for the years ended 2013 and 2012:

 

     2013     2012  
     4Q     3Q      2Q     1Q     4Q     3Q      2Q     1Q  

Revenue

   $ 238,267      $ 316,263       $ 254,842      $ 106,829      $ 231,634      $ 319,181       $ 255,556      $ 119,883   

Operating (loss) income

     (57,742     37,895         13,731        (41,861     13,322        33,249         9,015        (40,171

(Loss) income from continuing operations

     (70,191     22,950         244        (56,154     433        19,656         (5,621     (61,499

Loss (income) from discontinued operations

     271        160         (26     123        535        1,287         2,221        (497

Net (loss) income

   $ (70,462   $ 22,790       $ 270      $ (56,277   $ (102   $ 18,369       $ (7,842   $ (61,002

 

93


(23) Subsequent Events

On January 17, 2014, Summit Materials and Summit Materials Finance Corp. issued and sold $260.0 million aggregate principal amount of their 10.5% Senior Notes due 2020 (the “Additional Notes”), which mature on January 31, 2020, pursuant to an indenture governing the $250.0 million aggregate principal amount of 10.5% Senior Notes due 2020 that were issued on January 30, 2012 (the “Existing Notes”). The Additional Notes are treated as a single series with the Existing Notes and have substantially the same terms as those of the Existing Notes. The Additional Notes and the Existing Notes will vote as one class under the Indenture. In addition, on January 16, 2014, the Senior Secured Credit Agreement was amended to allow for the issuance of the Additional Notes.

On January 17, 2014, the Company completed its acquisition of Alleyton Resource Corporation, a Texas corporation, and Colorado Gulf, LP, a Texas limited partnership, and certain real property from Barten Shepard Investments, LP, a Texas limited partnership (“BSI”), collectively, referred to as “Alleyton”, for approximately $179.25 million, with an additional $30.75 million in deferred and contingent payments. The Alleyton acquisition consideration was funded through a portion of the net proceeds from the issue and sale of the Additional Notes.

 

94


ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE.

None.

 

ITEM 9A. CONTROLS AND PROCEDURES.

Disclosure Controls and Procedures

We maintain disclosure controls and procedures that are designed to ensure that information required to be disclosed in the Company’s reports under the Exchange Act, is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to the Company’s management, including the Company’s Chief Executive Officer and the Company’s Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. Any controls and procedures, no matter how well designed and operated, can provide only reasonable, not absolute, assurance of achieving the desired control objectives. The Company’s management, with the participation of the Company’s Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of the Company’s disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of December 28, 2013. Based upon that evaluation, the Company’s Chief Executive Officer and Chief Financial Officer concluded that, as of December 28, 2013, the Company’s disclosure controls and procedures were effective to accomplish their objectives at the reasonable assurance level.

Changes in Internal Control over Financial Reporting

There was no change in the Company’s internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that occurred during the Company’s last fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

Management’s Annual Report on Internal Control Over Financial Reporting

This Annual Report on Form 10-K does not include a report of managements’ assessment regarding internal control over financial reporting or an attestation report of the company’s registered public accounting firm due to a transition period established by rules of the SEC for newly public companies.

 

ITEM 9B. OTHER INFORMATION.

Pursuant to Section 219 of the Iran Threat Reduction and Syria Human Rights Act of 2012, which added Section 13(r) of the Exchange Act, the Company hereby incorporates by reference herein Exhibit 99.1 of this report, which includes disclosures publicly filed and/or provided to The Blackstone Group L.P., an affiliate of certain investment funds that indirectly own a majority of the equity interests of the Company, by Hilton Worldwide, Inc., SunGard Capital Corp., SunGard Capital Corp. II, SunGard Data Systems and Travelport Limited, which may be considered the Company’s affiliates.

We are not presently aware that we and our subsidiaries have knowingly engaged in any transaction or dealing reportable under Section 13(r) of the Exchange Act during the year ended December 28, 2013.

 

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PART III

 

ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE.

The following table sets forth certain information regarding the executive officers of Summit Materials as of January 17, 2014 who are responsible for overseeing the management of our business, as well as certain information regarding the members of the board of directors (the “Board”) of the general partner of Parent (“Parent GP”).

 

Name

 

Age

  

Position

Thomas W. Hill

 

58

   President and Chief Executive Officer; Chairman of the Board of Directors

Brian J. Harris

 

57

   Chief Financial Officer

Douglas C. Rauh

 

53

   Chief Operating Officer

Anne L. Benedict

 

41

   Chief Legal Officer and Secretary

Kevin A. Gill

 

53

   Chief Human Resources Officer

Michael J. Brady

 

46

   Executive Vice President

Damian J. Murphy

 

44

   Regional President—Central Region

M. Shane Evans

 

43

   Regional President—West Region

Howard L. Lance

 

58

   Director; Non-Executive Chairman of the Board of Directors

John R. Murphy

 

63

   Director; Audit Committee Chairman

Neil P. Simpkins

 

47

   Director

Ted A. Gardner

 

56

   Director

Julia C. Kahr

 

35

   Director

Thomas W. Hill is the founder of the Company and has been Chief Executive Officer since the Company’s inception in September 2008. He was appointed Chairman of the Board of Parent GP in August 2009. From 2006 to 2008, he was the Chief Executive Officer of Oldcastle, Inc., the North American arm of CRH plc, one of the world’s leading building materials companies. Mr. Hill served on the CRH plc Board of Directors from 2002 to 2008 and, from 1992 to 2006, ran the Materials division of Oldcastle. Mr. Hill served as Chairman of the American Road and Transportation Builders Association (“ARTBA”) from 2002 to 2004, during congressional consideration of the multi-year transportation bill “SAFETEA-LU.” Mr. Hill has been Treasurer of both the National Asphalt Pavement Association and the National Stone Association, and he remains active with ARTBA’s Executive Committee. Mr. Hill received a Bachelor of Arts in Economics and History from Duke University and a Masters of Business Administration from Trinity College in Dublin, Ireland.

Brian J. Harris joined the Company as Chief Financial Officer in October 2013. Prior to joining the Company, Mr. Harris served as Executive Vice President and Chief Financial Officer of Bausch & Lomb Holdings Incorporated, a leading global eye health company, from 2009 to 2013. From 1990 to 2009, Mr. Harris held positions of increasing responsibility with industrial, automotive, building products and engineering manufacturing conglomerate Tomkins plc, including President of the $2 billion worldwide power transmission business for Gates Corporation, and Senior Vice President for Strategic Business Development and Business Administration, Chief Financial Officer and Secretary of Gates Corporation. Mr. Harris earned his Bachelor of Accountancy from Glasgow University and is qualified as a Scottish Chartered Accountant.

Douglas C. Rauh joined the Company as the Regional President of the East Region in January 2012 with over 29 years of experience in the construction materials industry. Effective March 1, 2013, Mr. Rauh, became the Company’s Chief Operating Officer. Mr. Rauh started his career working for his family’s business, Northern Ohio Paving Company (“NOPCO”). He had roles of increasing responsibility from 1983 to 2000, concluding as Vice President. In April 2000, NOPCO was acquired by Oldcastle. Upon acquisition, NOPCO merged with The Shelly Co. (“Shelly”), which was also acquired by Oldcastle in early 2000. From 2000 through

 

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2006, Mr. Rauh was the Vice President/General Manager of the Northeast Division of Shelly. During this period, several companies were acquired which tripled the division’s revenue. In 2007, Mr. Rauh was named Senior Vice President responsible for the Northeast and Northwest Divisions of Shelly. In 2008, Mr. Rauh was also given responsibility for Shelly’s ready-mixed concrete business in Northwest Ohio. Additionally, Mr. Rauh became responsible for all of Shelly’s hot mix asphalt plants. In 2009, Mr. Rauh was named the President and CEO of Shelly. During Mr. Rauh’s tenure with Shelly, he was an integral part of the team that completed over 30 acquisitions. He attended The Ohio State University and graduated in 1983 with a Bachelor of Science degree in Business Administration.

Anne L. Benedict joined the Company in October 2013. Prior to joining the Company, Ms. Benedict was a corporate partner in the Washington, D.C. office of Gibson, Dunn & Crutcher, where she had practiced since 2000. Ms. Benedict’s practice involved a wide range of corporate law matters, including mergers and acquisitions, joint ventures and other strategic transactions, securities offerings, securities regulation and disclosure issues, and corporate governance matters. Ms. Benedict graduated from the University of Pennsylvania Law School in 1999. She earned a Bachelor of Arts degree in English and Psychology from the University of Michigan in 1995.

Kevin A. Gill joined the Company as Chief Human Resource Officer in May 2013 after having been Human Resources Vice President for Guilford Performance Textiles, a Cerberus portfolio company, since November 2008. In this role, he provided Human Resources Leadership that fueled the monetization to Lear Corporation. Prior to Guilford, Mr. Gill held a variety of Human Resources leadership roles with companies such as Honeywell, Citibank and Monsanto Chemical. Mr. Gill holds a Bachelor of Science in Business Administration from Villanova University and a Master of Arts in Industrial Relations from Wayne State in Detroit, Michigan.

Michael J. Brady joined the Company in April 2009 as Executive Vice President. Before joining the Company, Mr. Brady was a Senior Vice President at Oldcastle with overall responsibility for acquisitions and business development, having joined the company in 2000. Prior to that, Mr. Brady worked in several operational and general management positions in the paper and packaging industry in Ireland, the United Kingdom and Asia Pacific with the Jefferson Smurfit Group, plc (now Smurfit Kappa Group plc). Mr. Brady has a Bachelor of Engineering (Electrical) and a Master of Engineering Science (Microelectronics) from University College, Cork in Ireland. He earned his Master of Business Administration degree from INSEAD in Fontainebleau, France.

Damian J. Murphy joined the Company as Regional President of the Central Region in August 2009 with over 20 years of experience in the construction materials and mining industries, working with both public and privately held companies. Prior to joining the Company, Mr. Murphy served as Regional President of Oldcastle starting in 2007. At Oldcastle, Mr. Murphy also worked in the Rocky Mountain region as a Vice President, responsible for aggregates and hot mix asphalt production and sales. Before heading to Colorado, Mr. Murphy worked in the mid-Atlantic for a top 10 privately held aggregate supplier. He began his career in the mining industry in Europe. Mr. Murphy holds a Bachelor of Engineering degree with a concentration in Minerals Engineering from the Camborne School of Mines/ Exeter University in the United Kingdom.

M. Shane Evans joined the Company as Regional President of the West Region in August 2010 with 22 years of experience in the construction materials industry. He started his career working in his family’s construction and materials business where he held various operational and executive positions. Prior to joining the Company, Mr. Evans was part of Oldcastle where he worked for 12 years, most recently as a Division President. Mr. Evans has a Bachelor of Science degree from Montana State University.

Howard L. Lance began to serve on the Board of Parent GP starting in October 2012. However, he was formally elected as a director of Parent GP and Non-Executive Chairman of the Board of Parent GP in February 2013. He was Chairman of the Board of Directors, President and Chief Executive Officer of Harris Corporation through 2011. Mr. Lance was appointed president and Chief Executive Officer of Harris Corporation and elected to its Board of Directors in January 2003. He was elected chairman of the Board of Directors in June 2003. Before joining Harris Corporation, Mr. Lance was president of NCR Corporation and Chief Operating Officer of its Retail and Financial Group. Previously, he spent 17 years with Emerson Electric Co., where he held senior management positions including Executive Vice President of its Electronics and Telecommunications segment, Chief Executive Officer and director of its Astec electronics subsidiary in Hong Kong, Group Vice President of its Climate Technologies segment and President of its Copeland Refrigeration division.

John R. Murphy was elected as a director of Parent GP and Chairman of the Audit Committee in February 2012. Mr. Murphy served as the Company’s Interim Chief Financial Officer from January 2013 to May 2013 and from July 2013 to October 2013. He was Senior Vice President and Chief Financial Officer of Smurfit-Stone Container Corporation from 2009 to 2010 and served in various senior management roles from 1998 to 2008, including Chief Financial Officer and Chief Operating Officer and as President and Chief Executive Officer of Accuride Corporation. Accuride Corporation filed for Chapter 11 bankruptcy protection in October 2009, and emerged in 2010. Since 2003, Mr. Murphy has served on the Board of Directors, the Governance Committee and as Chairman of the Audit Committee of O’Reilly Automotive, Inc. He has also served as a director and Audit Committee Chairman of DJO Global Inc. since January 2012. Mr. Murphy was elected as a director and Audit Committee member of Graham Packaging in February 2011. Graham Packaging was subsequently sold in September 2011. Mr. Murphy has a Bachelor of Science degree in Accounting from Pennsylvania State University and a Master of Business Administration degree from the University of Colorado and is a Certified Public Accountant.

 

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Neil P. Simpkins was elected as a director of Parent GP in August 2009. He is a Senior Managing Director of Blackstone in the Private Equity Group and is based in New York. Since joining Blackstone in 1998, Mr. Simpkins has led the acquisitions of TRW Automotive, Vanguard Health Systems, Team Health, LLC, Apria Healthcare Group, Summit Materials and Emdeon, Inc. Before joining Blackstone, Mr. Simpkins was a Principal at Bain Capital. Prior to joining Bain Capital, Mr. Simpkins was a consultant at Bain & Company in the Asia Pacific region and in London. Mr. Simpkins graduated with honors from Oxford University and received a Masters of Business Administration from Harvard Business School. He currently serves as Lead Director of TRW Automotive and as a Director of Team Health, LLC, Apria Healthcare Group and Emdeon, Inc.

Ted A. Gardner was elected as a director of Parent GP in August 2009. He is a Managing Partner of Silverhawk. Prior to co-founding Silverhawk in 2005, Mr. Gardner was a Managing Partner of Wachovia Capital Partners (formerly, First Union Capital Partners) from 1989 until 2002. He was a director and Chairman of the Compensation Committee of Kinder Morgan, Inc. from 1999 to 2007 and was a director and the Chairman of Audit Committee of Encore Acquisition Company from 2001 to 2010. He is currently a director of Kinder Morgan Energy Partners, Spartan Energy Partners and Athlon Energy Inc. Mr. Gardner received a Bachelor of Arts degree in Economics from Duke University and a Juris Doctor and Masters of Business Administration from the University of Virginia.

Julia C. Kahr was elected as a director of Parent GP in August 2009. She is a Managing Director in Blackstone’s Corporate Private Equity group. Since joining Blackstone in 2004, she has been involved in the execution of Blackstone’s investments in SunGard, Encore Medical, DJ Orthopedics and Summit Materials. Before joining Blackstone, she was a Project Leader at the Boston Consulting Group, where she worked with companies in a variety of industries, including health care, financial services, media and entertainment and consumer goods. She is also the sole author of Working Knowledge, a book published by Simon & Schuster in 1998. She currently serves on the Board of Directors of DJ Orthopedics and is also a member of the Board of Directors of Episcopal Social Services. Ms. Kahr received a Bachelor of Arts in Classical Civilization from Yale University where she graduated summa cum laude. She received a Masters of Business Administration from Harvard Business School.

Corporate Governance Matters

Background and Experience of Directors

When considering whether directors and nominees have the experiences, qualifications, attributes or skills, taken as a whole, to enable the Board to satisfy its oversight responsibilities effectively in light of our business and structure, the Board focused on, among other things, each person’s background and experience as reflected in the information discussed in each of the directors’ individual biographies set forth above. We believe that our Parent’s directors provide an appropriate mix of experience and skills relevant to the size and nature of our business. The members of the Board considered, among other things, the following important characteristics which make each director a valuable member of the Board:

 

   

Mr. Hill’s extensive knowledge of our industry and significant experience in leading companies.

 

   

Mr. Lance’s significant management and operational experience from his service in various senior management roles, including as President and Chief Executive Officer of Harris Corporation and President of NCR Corporation.

 

   

Mr. Murphy’s extensive financial knowledge, including from his service as Chief Financial Officer of Smurfit-Stone Container Corporation and Accuride Corporation.

 

   

Mr. Simpkins’s significant financial expertise and business experience, including as a Senior Managing Director in the Private Equity Group at Blackstone and Principal at Bain Capital.

 

   

Mr. Gardner’s extensive business and leadership experience, including as a Managing Partner of Silverhawk and Managing Partner of Wachovia Capital Partners (formerly, First Union Capital Partners).

 

   

Ms. Kahr’s extensive knowledge of a variety of different industries and her significant financial and investment experience from her involvement in Blackstone, including as Managing Director.

Independence of Directors

We are not a listed issuer whose securities are listed on a national securities exchange or in an inter-dealer quotation system that requires that a majority of the Board of Parent GP be independent. However, if we were a listed issuer whose securities were traded on the New York Stock Exchange and subject to such requirements, we would be entitled to rely on the controlled company exception contained in Section 303A of the NYSE Listed Company Manual for exception from the independence requirements related to the majority of our Board of Directors. Pursuant to Section 303A of the NYSE Listed Company Manual, a company of which more than 50% of the voting power is held by an individual, a group or another company is exempt from the requirements that its board of directors consist of a majority of independent directors. At December 28, 2013, Blackstone beneficially owned greater than 50% of the voting power of the Company, which would qualify the Company as a controlled company eligible for exemption under the rule.

 

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Board Committees

The Board currently consists of six directors. The Board has determined that Mr. Murphy, Board member and audit committee chairman, qualifies as an “audit committee financial expert” as defined in the federal securities laws and regulations. Mr. Murphy is considered “independent.”

Audit Committee

The audit committee assists the Board with its oversight of the quality and integrity of our accounting, auditing and reporting practices. Pursuant to its charter, the audit committee makes recommendations to our board of directors for the appointment, compensation and retention of the independent auditor. The audit committee’s primary responsibilities include the following:

 

   

reviewing and discussing our consolidated financial statements and management’s discussion and analysis of financial condition and results of operations disclosure with management and the independent registered public accountants;

 

   

reviewing and discussing our earnings releases and any financial information or earnings guidance given, if any, to investors, creditors, financial analysts and credit rating agencies; and

 

   

reviewing and discussing the Company’s risk assessment and risk management policies.

Code of Conduct

Summit Materials’ Code of Conduct applies to all employees, including our chief executive officer and chief financial officer, and the Board of Parent GP. The Code of Conduct sets forth the Company’s conflict of interest policy, records retention policy, insider trading policy and policies for protection of Summit Material’s property, business opportunities and proprietary information. Summit Materials’ Code of Conduct is available free of charge on its website at www.summit-materials.com under the tab “Investor Relations.” Summit Materials intends to post on its website any amendments to, or waivers from, the Code of Conduct applicable to senior financial executives.

 

ITEM 11. EXECUTIVE COMPENSATION.

Summary Compensation Table

The following table sets forth the compensation of our named executive officers for the years ended December 28, 2013 and December 29, 2012, and their respective titles at December 28, 2013.

 

Name and Principal Position

   Year      Salary      Bonus(1)      Stock
Awards(2)
     Non-Equity
Incentive Plan
Compensation
     All Other
Compensation(3)
     Total  

Thomas W. Hill

     2013       $ 525,000       $ —         $ —         $ 563,850       $ 18,665       $ 1,107,515   

President and Chief Executive Officer, Chairman of the Board of Directors of Parent GP

     2012         510,000         267,750         —           —           25,594         803,344   

Doug C. Rauh

     2013         475,000         29,212         103,553         382,073         68,496         1,058,334   

Chief Operating Officer

     2012         450,000         550,000         838,853         —           468,548         2,307,401   

Kevin A. Gill(4)

     2013         184,041         20,000         207,126         117,603         171,570         700,340   

Chief Human Resource Officer

                    

 

(1) Reflects the cash bonuses paid to the named executive officers in 2014 and 2013 in respect of their services during 2013 and 2012, respectively. The amounts of the bonus payments were determined by the Board of Directors in its discretion. For more information, see “—Bonus and Non-Equity Incentive Plan Compensation.” The amounts paid in 2012 to Mr. Rauh include a starting bonus of $400,000 paid in a lump sum and a $150,000 discretionary bonus. For more details, see “—Employment Agreements—Douglas Rauh.” The amounts paid in 2013 to Mr. Gill include a starting bonus of $20,000 paid in a lump sum.
(2) The amount reported in the Stock Awards column reflects the aggregate grant date fair value computed in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718 (“ASC 718”). The assumptions applied in determining the fair value of the stock awards are discussed in Note 19, Employee Long-Term Incentive Plan, to our December 28, 2013 audited consolidated financial statements included elsewhere in this report. This amount reflects our calculation of the value of the awards at the grant date and do not necessarily correspond to the actual value that may ultimately be recognized by the named executive officer. A portion of the shares granted in 2013 and 2012 vest under certain performance conditions, which are not currently deemed probable of occurring, and, therefore, have not been included in the table above. The unrecognized value of these awards assuming the highest level of performance conditions would be achieved was $111,831 and $176,883 as of December 28, 2013 and December 29, 2012, respectively for Mr. Rauh and $223,676 as December 28, 2013 for Mr. Gill.

 

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(3) All Other Compensation includes the following items: (a) amounts contributed by Summit Materials under the Summit Materials, LLC Retirement Plan, (b) payments for term life insurance, (c) car allowances, (d) relocation costs and related tax gross-ups, (e) gym membership costs, (f) country club dues and (g) fuel reimbursing for commuting. Amounts contributed to the Summit Materials, LLC Retirement Plan are matching contributions up to 4% of eligible compensation subject to IRS limits and totaled $10,200 for both Mr. Hill and Mr. Rauh and $6,000 for Mr. Gill in 2013 and $9,800 for each of Mr. Hill and Mr. Rauh in 2012. Matching contributions are immediately vested. For more information, see “—Summit Materials, LLC Retirement Plan.” Payments for term life insurance were as follows: Mr. Hill—$2,451; Mr. Rauh—$1,173 and Mr. Gill—$215 in 2013 and Mr. Hill—$6,719 and Mr. Rauh—$979 in 2012. Payments made by Summit Materials for car allowances were as follows: Mr. Rauh—$20,851 and Mr. Gill—$7,355 in 2013 and $20,844 for Mr. Rauh in 2012. Payments made by Summit Materials associated with Mr. Rauh’s relocation were $1,065 in 2013 and $233,393 of relocation and $194,457 for the related tax gross-up in 2012 and $88,358 associated with Mr. Gill’s relocation and $69,368 for the related tax gross-up in 2013. For more details about the payments made to Mr. Rauh and Mr. Gill, see “—Employment Agreements—Douglas Rauh” and “—Employment Agreements—Kevin Gill.”
(4) Mr. Gill joined the Company effective May 21, 2013.

Employment Agreements

Thomas Hill

Parent entered into an employment agreement with Thomas Hill, dated as of July 30, 2009, whereby Mr. Hill serves as the Chief Executive Officer of the Parent and the Chief Executive Officer of the general partner of Parent (“Parent GP”). Mr. Hill also will continue to serve as a member of the Board so long as he serves in the foregoing capacities. Mr. Hill’s employment agreement had an initial term equal to three years commencing on July 30, 2009, which is automatically extended for additional one-year periods, unless Parent or Mr. Hill provides the other party 60 days prior written notice before the next extension date that the employment term will not be so extended. However, if Parent is dissolved pursuant to the terms of its exempted limited partnership agreement, then the employment term shall automatically and immediately be terminated. On July 30, 2013, Mr. Hill’s employment agreement was automatically extended for an additional year.

Pursuant to the terms of his employment agreement, Mr. Hill’s initial annual base salary was $500,000, which amount is reviewed annually by the Board, and may be increased (but not decreased). His base salary in 2013 was $525,000. Mr. Hill is also eligible to earn an annual bonus of up to 100% of his base salary based upon the achievement of performance targets established by the Board within the first three months of each fiscal year during the employment term. The Board, in its sole discretion, may appropriately adjust such performance targets in any fiscal year to reflect any merger, acquisition or divestiture affected by the Parent during such fiscal year. Mr. Hill is also entitled to participate in the Parent’s employee benefit plans, as in effect from time to time, on the same basis as those benefits are generally made available to other senior executives of Parent.

If Mr. Hill’s employment is terminated (i) by Parent with “cause” or (ii) by him other than as a result of a “constructive termination,” he will be entitled to certain accrued amounts. If Mr. Hill’s employment is terminated as a result of his death or “disability” (as defined in the employment agreement), he will be entitled to, in addition to certain accrued amounts, a pro rata portion of the annual bonus, if any, that Mr. Hill would have been entitled to receive, payable when such annual bonus would have otherwise been payable to him had his employment not been terminated. If Mr. Hill’s employment is terminated (i) by Parent without Cause or (ii) by him as a result of a “constructive termination” (as defined in the employment agreement), subject to his continued compliance with certain restrictive covenants and his non-revocation of a general release of claims, he will be entitled to receive, in addition to certain accrued amounts, (i) continued payment of his base salary in accordance with the Parent’s normal payroll practices, as in effect on the date of termination of his employment, until 18 months after the date of such termination and (ii) an amount equal to one and one-half times his annual bonus in respect of the fiscal year immediately preceding the applicable year of his termination of employment; provided that the aggregate amounts shall be reduced by the present value of any other cash severance or termination benefits payable to him under any other plans, programs or arrangements of the Parent or its affiliates.

In the event (i) Mr. Hill elects not to extend the employment term or (ii) of a “dissolution” with a “negative return” (as such terms are defined in the employment agreement), unless Mr. Hill’s employment is earlier terminated, Mr. Hill’s termination of employment shall be deemed to occur on the close of business on the earlier of the effective date of “dissolution” or the day immediately preceding the next scheduled extension date, and Mr. Hill shall be entitled to receive certain accrued amounts. In the event (i) that Parent elects not to extend the employment term or (ii) of a “dissolution” with a “positive return” (as such terms are defined in his employment agreement), Mr. Hill shall be treated as terminated without cause effective as of the close of business on the day immediately preceding the next scheduled extension date or the effective date of the “dissolution,” and shall be entitled to receive the amounts and benefits described above.

Pursuant to the terms of his employment agreement, Mr. Hill is subject to the following covenants: (i) a covenant not to disclose confidential information while employed and at all times thereafter; (ii) a covenant not to compete for a period of 18 months following his termination of employment for any reason; and (iii) a covenant not to solicit employees or customers for a period of 18 months following his termination of employment for any reason.

 

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Douglas Rauh

Parent entered into an employment agreement with Douglas Rauh, dated as of December 29, 2011, pursuant to which Mr. Rauh became our Regional President, Eastern Division. Effective April 1, 2013, Mr. Rauh assumed the role of Chief Operating Officer of the Company. His employment agreement otherwise remained in effect. Mr. Rauh’s employment agreement has an initial term equal to three years commencing on January 1, 2012 which will be automatically extended for additional one-year periods, unless Parent or Mr. Rauh provides the other party 60 days prior written notice before the next extension date that the employment term will not be so extended. The employment term will automatically and immediately be terminated upon a “dissolution” (as defined in the employment agreement).

Pursuant to the terms of his employment agreement, Mr. Rauh’s annual base salary is $450,000, which amount is reviewed annually by the Board, and may be increased (but not decreased). Mr. Rauh’s base salary for 2013 was $475,000. Mr. Rauh is also eligible to earn an annual bonus of up to 60% of his base salary based upon the achievement of performance targets established by the Board within the first three months of each fiscal year during the employment term, with a potential bonus of up to 90% of his base salary for extraordinary performance. The Board, in its sole discretion, may appropriately adjust such performance targets in any fiscal year to reflect any merger, acquisition or divestiture affected by the Parent during such fiscal year. Notwithstanding the foregoing, Mr. Rauh’s minimum annual bonus for 2012 (payable in 2013) was $150,000. In addition, after Mr. Rauh commenced his employment, Parent paid Mr. Rauh a starting bonus of $400,000 in a lump sum. Mr. Rauh is entitled to a car allowance in the amount of $1,000 per month for car expenses, in addition to reimbursement from the Parent for Mr. Rauh’s actual expenditures for gasoline, upon submission of appropriate documentation.

The employment agreement further provides that Parent reimburse Mr. Rauh for any loss suffered by Mr. Rauh in connection with the sale of his residence in Ohio, the actual out of pocket loss incurred by Mr. Rauh on the sale of his residence in Ohio, a gross-up of all income taxes imposed on Mr. Rauh in connection with the reimbursement payment, the cost of up to three visits by Mr. Rauh and his family to the Washington, D.C. area in connection with the search for a new residence, three months of the reasonable rental of a house in the Washington, D.C. area, and reasonable moving expenses incurred by Mr. Rauh in connection with his relocation. These obligations were satisfied by Parent in 2012 and are included in the amounts reported for Mr. Rauh in 2012 in the “All Other Compensation” column of the Summary Compensation Table. In addition, the agreement provides that Parent reimburse Mr. Rauh for his out of pocket costs for payment of COBRA continuation premiums in connection with health care insurance covering Mr. Rauh and his family, until such time as Mr. Rauh and his family obtain coverage under the Parent’s health care insurance plan. These obligations were satisfied by Parent in 2012 and are also included in the amounts reported for Mr. Rauh in 2012 in the “All Other Compensation” column of the Summary Compensation Table. Mr. Rauh is also entitled to participate in the Parent’s employee benefit plans as in effect from time to time, on the same basis as those benefits are generally made available to other senior executives of Parent.

If Mr. Rauh’s employment is terminated (i) by Parent with “cause” (as defined in the employment agreement) or (ii) by him other than as a result of a “constructive termination” (as defined in the employment agreement), he will be entitled to certain accrued amounts, and if Mr. Rauh’s employment is terminated as a result of his death or “disability” (as defined in his employment agreement), he will be entitled to (a) certain accrued amounts, (b) a pro rata portion of the annual bonus, if any, that Mr. Rauh would have been entitled to receive, payable when such annual bonus would have otherwise been payable to him had his employment not terminated, and (c) the costs of COBRA health continuation coverage for 18 months (or, if shorter, until COBRA coverage ends under Parent’s group health plan). If Mr. Rauh’s employment is terminated (i) by Parent without cause or (ii) by him as a result of a “constructive termination” (as defined in the employment agreement), subject to his continued compliance with certain restrictive covenants and his non-revocation of a general release of claims, he will be entitled to receive, in addition to certain accrued amounts, (i) continued payment of his base salary in accordance with the Parent’s normal payroll practices, as in effect on the date of termination of his employment, until 24 months after the date of such termination (or 12 months if the termination occurs on or after January 1, 2014) (the “Severance Period”), (ii) an amount equal to one and two times (or only one time if the termination occurs on or after January 1, 2014) Mr. Rauh’s annual bonus in respect of the fiscal year immediately preceding the applicable year of Mr. Rauh’s termination of employment, payable in equal monthly installments for 18 months after the date of such termination, and (iii) the costs of COBRA health continuation coverage for the lesser of the Severance Period or 18 months (or, if shorter, until COBRA coverage ends under Parent’s group health plan); provided that the aggregate amounts shall be reduced by the present value of any other cash severance or termination benefits payable to Mr. Rauh under any other plans, programs or arrangements of the Parent or its affiliates.

In the event (i) Mr. Rauh elects not to extend the employment term or (ii) of a “dissolution” (as such term is defined in his employment agreement) in connection with which the Sponsors do not receive a return on their investment, unless Mr. Rauh’s employment is earlier terminated, Mr. Rauh’s termination of employment shall be deemed to occur on the close of business on the earlier of the effective date of “dissolution” or the day immediately preceding the next scheduled extension date, and Mr. Rauh shall be entitled to receive certain accrued amounts. In the event (i) that Parent elects not to extend the employment term or (ii) of a “dissolution” (as such term is defined in his employment agreement) in connection with which the Sponsors receive a return on their

 

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investment, Mr. Rauh shall be treated as terminated without cause effective as of the close of business on the day immediately preceding the next scheduled extension date or the effective date of the “dissolution,” and shall be entitled to receive the amounts and benefits described above.

Pursuant to the terms of his employment agreement, Mr. Rauh is subject to the following covenants: (i) a covenant not to disclose confidential information while employed and at all times thereafter; (ii) a covenant not to compete for a period of 12 months (24 months if the Severance Period is 24 months) following his termination of employment for any reason; and (iii) a covenant not to solicit employees or customers for a period of 12 months (24 months if the Severance Period is 24 months) following his termination of employment for any reason.

Kevin Gill

Parent entered into an employment agreement with Kevin Gill, dated as of November 11, 2013, whereby Mr. Gill serves as our Chief Human Resource Officer. Mr. Gill’s employment agreement has an initial term equal to three years commencing on May 21, 2013 which will be automatically extended for additional one-year periods, unless Parent or Mr. Gill provides the other party 60 days prior written notice before the next extension date that the employment term will not be so extended. The employment term will automatically and immediately be terminated upon a “dissolution” (as defined in the employment agreement).

Pursuant to the terms of his employment agreement, Mr. Gill’s initial annual base salary is $300,000, which amount is reviewed annually by the Board, and may be increased (but not decreased). Mr. Gill is also eligible to earn an annual bonus of up to 60% of his base salary based upon the achievement of performance targets established by the Board within the first three months of each fiscal year during the employment term, with a potential bonus of up to 150% of his base salary for extraordinary performance. The Board, in its sole discretion, may appropriately adjust such performance targets in any fiscal year to reflect any merger, acquisition or divestiture affected by the Parent during such fiscal year. The annual bonus would be paid in a cash lump sum during the calendar year immediately following the fiscal year in which it is earned. In addition, after Mr. Gill commenced his employment, Parent paid Mr. Gill a starting bonus of $20,000 in a lump sum. Mr. Gill is entitled to a car allowance in the amount of $1,000 per month for car expenses.

The employment agreement further provides for reimbursement of three to four months of the reasonable rental of a house in Colorado, the closing costs associated with the sale of his home in North Carolina and any actual out of pocket loss incurred by Mr. Gill on the sale of his residence in North Carolina. These reimbursements are subject to a gross-up of all income taxes imposed on Mr. Gill in connection with the reimbursement payments. These obligations were satisfied by Parent in 2013 and are included in the “All Other Compensation” column of the Summary Compensation Table. In addition, the agreement provides that Parent reimburse Mr. Gill for his out of pocket costs for payment of COBRA continuation premiums in connection with health care insurance covering Mr. Gill and his family, until such time as Mr. Gill and his family obtain coverage under the Parent’s health care insurance plan. These obligations were satisfied by Parent in 2013 and are included in the “All Other Compensation” column of the Summary Compensation Table. Mr. Gill is also entitled to participate in the Parent’s employee benefit plans as in effect from time to time, on the same basis as those benefits are generally made available to other senior executives of Parent.

If Mr. Gill’s employment is terminated (i) by Parent with “cause” (as defined in the employment agreement) or (ii) by him other than as a result of a “constructive termination” (as defined in the employment agreement), he will be entitled to certain accrued amounts, and if Mr. Gill’s employment is terminated as a result of his death or “disability” (as defined in his employment agreement), he will be entitled to (a) certain accrued amounts, (b) a pro rata portion of the annual bonus, if any, that Mr. Gill would have been entitled to receive, payable when such annual bonus would have otherwise been payable to him had his employment not terminated, and (c) the costs of COBRA health continuation coverage for 18 months (or, if shorter, until COBRA coverage ends under Parent’s group health plan). If Mr. Gill’s employment is terminated (i) by Parent without cause or (ii) by him as a result of a “constructive termination” (as defined in the employment agreement), subject to his continued compliance with certain restrictive covenants and his non-revocation of a general release of claims, he will be entitled to receive, in addition to certain accrued amounts, (i) continued payment of his base salary in accordance with the Parent’s normal payroll practices, as in effect on the date of termination of his employment, until 12 months after the date of such termination (the “Severance Period”), (ii) the costs of COBRA health continuation coverage for the lesser of the Severance Period or 18 months (or, if shorter, until COBRA coverage ends under Parent’s group health plan); provided that the aggregate amounts shall be reduced by the present value of any other cash severance or termination benefits payable to Mr. Gill under any other plans, programs or arrangements of the Parent or its affiliates.

In the event (i) Mr. Gill elects not to extend the employment term or (ii) of a “dissolution” (as such term is defined in his employment agreement) in connection with which the Sponsors do not receive a return on their investment, unless Mr. Gill’s employment is earlier terminated, Mr. Gill’s termination of employment shall be deemed to occur on the close of business on the earlier of the effective date of “dissolution” or the day immediately preceding the next scheduled extension date, and Mr. Gill shall be entitled to receive certain accrued amounts. In the event (i) that Parent elects not to extend the employment term or (ii) of a “dissolution” (as such term is defined in his employment agreement) in connection with which the Sponsors receive a return on their investment, Mr. Gill shall be treated as terminated without cause effective as of the close of business on the day immediately preceding the next scheduled extension date or the effective date of the “dissolution,” and shall be entitled to receive the amounts and benefits described above.

 

102


Pursuant to the terms of his employment agreement, Mr. Gill is subject to the following covenants: (i) a covenant not to compete for a period of 12 months following his termination of employment by Parent without cause (ii) a covenant not to disclose confidential information while employed and at all times thereafter; and (iii) a covenant not to solicit employees or customers for a period of 12 months following his termination of employment by Parent without cause.

Bonus and Non-Equity Incentive Plan Compensation

Pursuant to their employment arrangements as discussed above, each named executive officer is eligible to earn an annual bonus of up to a specified percentage of such named executive officer’s base salary based upon the achievement of performance targets established by the Board within the first three months of each fiscal year during such named executive officer’s employment term. The performance targets may be based on Adjusted EBITDA and/or free cash flow targets; however, the Board, in its discretion, may adjust such performance targets in any fiscal year to reflect any merger, acquisition or divestiture affected by the Company during such fiscal year. In fiscal 2013 and 2012, the performance targets were primarily based on Adjusted EBITDA, cash flows and achieving certain safety metrics.

During fiscal 2013, the Adjusted EBITDA, cash flows and safety metrics as set by the Board in the first three months of 2013 were achieved. As a result, compensation was provided to the named executive officers was provided in the amounts shown above in the Non-Equity Incentive Plan Compensation column in the “—Summary Compensation Table.”

During fiscal 2012, although the Company’s actual Adjusted EBITDA result did not meet the target Adjusted EBITDA and thus the named executive officers were not entitled to their cash payments under the non-equity compensation plan awards, the Board in its discretion determined to make cash bonus payments to Mr. Hill and Mr. Rauh, as disclosed in the footnote to the bonus column of the Summary Compensation Table above. In determining the discretionary cash bonus payment for each named executive officer, the Board considered all of the following measures: safety, customer satisfaction, product quality and the successful integration of acquired businesses into Summit Materials. In addition, the Board considered each named executive officer’s effectiveness and contribution to Summit Materials.

Employee Long-Term Incentive Plan

Certain of our employees, including our named executive officers, received Class D unit interests in the Parent between 2009 and 2013. The Class D units provide rights to cash distributions based on a predetermined distribution formula (as provided for in the Third Amended and Restated Limited Partnership Agreement dated December 23, 2013) upon the Parent’s general partner declaring a distribution. There are four categories of Class D units: Class D-1 U.S. Interests; Class D-1 Non-U.S. Interests; Class D-2 U.S. Interests and Class D-2 Non-U.S. Interests. Under the exempted limited partnership agreement, these units would be entitled to distributions as determined by the Board on a pro rata basis with the Class B and Class C Units after returns of capital to Class A and Class B Holders (Blackstone and other Sponsors) and a preferential distribution to Class C Holders.

Generally, 50% of each category of Class D-1 units vest with the passage of time (“time-vesting interests”) and the remaining 50% of the Class D-1 units and all Class D-2 units vest when certain investment returns are achieved by the Parent’s investors (“performance-vesting interests”). Of the time-vesting-interests, subject to the holder’s continued employment through the applicable vesting date, 20% vest on the first anniversary of the grant date and the remaining 80% vest monthly over the four years following the first anniversary of the grant date. The time-vesting interests will become fully vested on an accelerated basis upon a change in control while the employee continues to provide services to the Company. Any of the time-vesting interests that are unvested upon termination of the employee’s services will be forfeited by the employee.

The performance-vesting interests vest when certain investment returns are achieved by the Parent’s investors while the employee continues to provide services to the Company or its subsidiaries. There are two performance levels at which performance-vesting interests generally vest, with performance-vesting interests that are Class D-1 units vesting if the Parent’s investors receive a return on invested capital of 1.75 times their initial investment, and performance-vesting interests that are Class D-2 units vesting if the Parent’s investors receive a return on invested capital of 3.00 times their initial investment.

Unvested interests are generally forfeited upon any termination of employment by the holder. However, if the employee is terminated without “cause” or resigns due to a “constructive termination” (each as defined in such employee’s employment agreement with the Company) within 12 months preceding a “change of control” or a “public offering” (each as defined in the Parent’s limited partnership agreement) any performance-vesting interests that would have been eligible to vest in connection with such transaction shall be restored and shall be eligible to vest based on the proceeds of such transaction.

If a holder’s employment is terminated by us for “cause,” or the holder violates a restrictive covenant, any vested Class D units are automatically forfeited. If a holder’s employment is terminated by us without “cause,” we may, under specified circumstances, repurchase the holder’s vested Class D units at a price per unit equal to the fair market value of such Class D units, minus any amounts already distributed to the holder in respect of such Class D units.

If a holder’s employment terminates as a result of the voluntary resignation of the holder, we may elect to convert all of the employee’s Class D units into a right to a fixed cash payment capped at a specified amount determined at the time of termination. The fixed cash payment calculated for this purpose is an amount equal to the fair market value of the holder’s vested Class D units minus any amounts already distributed to the holder in respect of such Class D units.

 

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In 2013 and 2012, Mr. Rauh was granted approximately 37.2 and 175.8 Class D-1 time-vesting units, respectively, 37.2 and 175.8 Class D-1 performance-vesting units, respectively, and 11.2 and 52.8 Class D-2 performance-vesting units, respectively, consistent with the terms described above. In 2013, Mr. Gill was granted approximately 74.3 Class D-1 time-vesting units, 74.3 Class D-1 performance-vesting units and 22.3 Class D-2 performance-vesting units consistent with the terms described above.

Summit Materials, LLC Retirement Plan

We have a qualified contributory retirement plan established to qualify as a deferred salary arrangement under Section 401(k) of the Internal Revenue Code of 1986, as amended. The plan covers all employees, including our named executive officers, who are limited to their annual tax deferred contribution limit as allowed by the Internal Revenue Service and may contribute up to 75% of their gross wages. We provide for matching contributions to the plan, including 100% of pre-tax employee contributions and up to 4% of eligible compensation. Employer contributions vest immediately.

Potential Payments upon Termination or Change of Control

In the event of a termination of employment or change of control, Class D units are subject to acceleration or extended periods during which the Class D units have an opportunity to vest, as described in “—Employee Long-Term Incentive Plan” above, and the named executive officers are entitled to the cash and non-cash severance benefits in accordance with the terms of their employment agreements, as described in “—Employment Agreements.”

Compensation Committee Interlocks and Insider Participation

Presently, the Board does not have a compensation committee. All decisions about our executive compensation in fiscal years 2013 and 2012 were made by the Board. Mr. Hill, who is the Chairman of the Board and our President and Chief Executive Officer, generally participates in discussions and deliberations of the Board regarding executive compensation. Other than Mr. Hill and Mr. Murphy, who served as our Interim Chief Financial Officer from December 18, 2012 to May 12, 2013 and from July 1, 2013 to October 14, 2013, no member of the Board was at any time during fiscal years 2013 or 2012, or at any other time, one of our officers or employees. We are parties to certain transactions with our Sponsors described in “Certain Relationships and Related Party Transactions.” None of our executive officers has served as a director or member of a compensation committee (or other committee serving an equivalent function) of any entity, one of whose executive officers served as a director of Parent GP.

 

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Outstanding Equity Awards at 2013 Fiscal Year-end

A summary of the outstanding equity awards for each named executive officer as of December 28, 2013 is as follows:

 

     Stock Awards  

Name

   Grant Date      Number of shares
or units

of stock that
have not vested
(#)(1)
     Market value of
shares or
units of stock
that have not
vested ($)(2)
     Equity incentive
plan awards:
Number of
unearned shares,
units or other

rights that have
not vested (#)(3)
     Equity incentive
plan  awards:
Market or
payout value  of
unearned shares,
units or other
rights that have
not vested ($)(2)
 

Thomas Hill

     08/25/2009         20         56,929         195         452,414   
     02/17/2010         52         145,560         312         723,076   
     04/16/2010         11         30,652         58         135,297   
     05/27/2010         89         247,153         407         941,758   
     08/02/2010         52         145,838         218         505,188   
     09/15/2010         33         92,341         123         285,683   
     11/30/2010         5         14,944         20         46,744   
     05/27/2011         52         144,049         140         322,857   
     08/02/2011         43         118,725         107         248,216   
     10/28/2011         27         73,863         61         664,729   

Douglas Rauh

     01/01/2012         134         372,780         290         671,035   
     08/21/2013         37         103,553         48         111,831   

Kevin Gill

     05/21/2013         74         207,126         97         223,676   

 

(1) Reflects time-vesting Class D Units, 20% of which vest on the first anniversary of the grant date and the remaining 80% vest monthly over the four years following the first anniversary.
(2) Reflects the aggregated market values at December 28, 2013 based on the most recent valuation of the Class D Units.
(3) Reflects performance-vesting interests that vest when certain investment returns are achieved by the Parent’s investors while the employee continues to provide services to the Company or its subsidiaries.

Director Compensation

We do not currently pay our directors who are either employed by us, Blackstone or Silverhawk compensation for their services as directors. Our other directors receive compensation for each quarter serving as a director. We may also reimburse our other directors for any reasonable expenses incurred by them in connection with services provided in such capacity. Our other directors may also receive equity incentive awards.

Howard Lance

Howard Lance began to serve on the Board of Parent GP starting in October 2012. However, he was formally elected as a director of Parent GP in February 2013. Mr. Lance is entitled to an annual cash retainer of $250,000 pursuant to an agreement under which Mr. Lance agreed to serve as a director. In March 2013, Mr. Lance was granted approximately 217.2 Class D-1 time-vesting units, 217.2 Class D-1 performance-vesting units and 65.2 Class D-2 performance-vesting units consistent with the terms describe above in “—Employee Long-Term Incentive Plan” above, except that Mr. Lance’s equity award is subject to vesting based solely on his continued service on the Board.

 

105


John Murphy

John Murphy was elected as a director of Parent GP and Chairman of the Audit Committee in February 2012. Mr. Murphy is entitled to an annual cash retainer of $100,000. In addition, Mr. Murphy is entitled to an annual equity grant of $50,000 for his service as director, for which, in 2013, he was granted approximately 4.3 Class D-1 time-vesting units, 4.3 Class D-1 performance-vesting units and 1.3 Class D-2 performance-vesting units, consistent with the terms describe above in “—-Employee Long-Term Incentive Plan.” Mr. Murphy was compensated $316,274 for his services as the Company’s Interim Chief Financial Officer from January 2013 to May 2013 and from July 2013 to October 2013.

Director Compensation

The table below summarizes the compensation paid to non-employee Directors for the year ended December 28, 2013.

 

Name

   Fees Earned or
Paid  in Cash
     Stock
Awards (1)
     Total
Compensation
 

Howard Lance

   $ 250,000       $ 605,047       $ 855,047   

John Murphy

     100,000         12,101         112,101   

Neil Simpkins

     —          —          —    

Ted Gardner

     —          —          —    

Julia Kahr

     —          —          —    

 

(1) The amount reported in the Stock Awards column reflects the aggregate grant date fair value of our units computed in accordance with ASC 718. The assumptions applied in determining the fair value of the stock awards are discussed in Note 19, Employee Long-Term Incentive Plan, to our December 28, 2013 audited consolidated financial statements included elsewhere in this report. This amount reflects our calculation of the value of the awards at the grant date and does not necessarily correspond to the actual value that may ultimately be recognized by the director. The performance conditions for the performance-vesting units are described above in “Executive Compensation—Employee Long-Term Incentive Plan” in this report. The performance-vesting units granted vest under performance conditions which are not currently deemed probable of occurring, and, therefore, have not been included in the table above. The unrecognized value of these awards assuming the highest level of performance conditions would be achieved was $653,390 for Mr. Lance in 2013 and $13,068 in 2013 for Mr. Murphy. At December 28, 2013, the aggregate number of stock awards outstanding was 499.5 Class D Units for Mr. Lance and 15.9 Class D Units outstanding for Mr. Murphy.

 

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ITEM 12. OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS.

Parent owns 100% of the limited liability company interests of Summit Materials Holdings, LLC, which owns 100% of the limited liability company interests of Summit Materials Intermediate Holdings, LLC, which owns 100% of the limited liability company interests of Summit Materials, which owns 100% of the issued and outstanding common stock of Summit Materials Finance Corp. The limited partnership interests of Parent consist of Class A-1 Units, Class A-2 Units, Class B-1 Units, Class C Units and Class D-1 Units and Class D-2 Units. Class A-1 Units are equity interests in Parent and have economic characteristics that are similar to those of shares of preferred stock in a corporation. Class A-2 Units are equity interests in Parent that are issuable only upon the exchange of Class B-1 Units, Class C Units and Class D-1 Units or Class D-1 Units for Class A-2 Units following any transfer of any such units (other than transfers to certain permitted transferees) and have similar economic rights as Class A-1 Units. Class B Units are equity interests in Parent and have similar economic rights as Class A-1 Units. Class C Units are equity interests in Parent that have been issued to certain start-up partners of Parent and have economic characteristics similar to those of shares of junior preferred stock in a corporation. Class D-1 Units and Class D-2 Units are partnership profits interests having economic characteristics similar to stock appreciation rights and are subject to different vesting schedules and other conditions including certain transfer restrictions and put and call rights applicable only to employees or the other holders thereof. For additional information, see “Management—Executive and Director Compensation” and “Certain Relationships and Related Party Transactions.”

The following table sets forth information with respect to the beneficial ownership of the Class A-1 Units and Class A-2 Units of Parent taken together as a single class, the Class B-1, the Class C Units of Parent, the Class D-1 and Class D-2 Units taken together as a single class and the aggregate Class A-1 Units, Class A-2 Units, Class B-1 Units, Class C Units, Class D-1 Units and Class D-2 Units taken together as a single class, in each case, as of December 28, 2013 for (i) each individual or entity known by us to own beneficially more than 5% of the aggregate units, (ii) each of our named executive officers, (iii) each of our directors and (iv) all of our directors and our executive officers as a group.

The amounts and percentages of units beneficially owned are reported on the basis of SEC regulations governing the determination of beneficial ownership of securities. Under SEC rules, a person is deemed to be a “beneficial owner” of a security if that person has or shares voting power or investment power, which includes the power to dispose of or to direct the disposition of such security. A person is also deemed to be a beneficial owner of any securities of which that person has a right to acquire beneficial ownership within 60 days. Securities that can be so acquired are deemed to be outstanding for purposes of computing such person’s ownership percentage, but not for purposes of computing any other person’s percentage. Under these rules, more than one person may be deemed to be a beneficial owner of the same securities and a person may be deemed to be a beneficial owner of securities as to which such person has no economic interest.

Except as otherwise indicated in the footnotes below, each of the beneficial owners has, to our knowledge, sole voting and investment power with respect to the indicated Class A-1 Units, Class A-2 Units, Class B-1 Units, Class C Units, Class D-1 Units and Class D-2 Units. Unless otherwise noted, the address of each beneficial owner of is c/o Summit Materials, LLC, 1550 Wynkoop Street, 3 rd floor, Denver, Colorado 80202. The table below presents the beneficial owners of the Company’s limited liability company interests as of December 28, 2013.

 

Name and

Address of Beneficial

Owner

   Class A Units     Class B-1 Units      Class C Units     Class D Units      Aggregate  
   Amount
and
Nature of
Beneficial
Ownership
     Percent     Amount
and
Nature of
Beneficial
Ownership
     Percent      Amount
and
Nature of
Beneficial
Ownership
     Percent     Amount
and
Nature of
Beneficial
Ownership
     Percent      Amount
and
Nature of
Beneficial
Ownership
    Percent  

Blackstone Funds(1)

     29,173         91.60     —          —          —          —         —          —          29,173 (2)      69.86

Silverhawk Summit, L.P.(3)

     1,572         5.03     —          —          260         35.91     —          —          1,832        4.39

Thomas Hill

     108         *        —          —          133         18.37     —          —          241        *   

Douglas Rauh

     —          —          —           —           —           —          —           —           —          —     

Kevin Gill

     —           —          —           —           —           —          —           —           —          —     

Howard Lance

     —           —          —           —           —           —          —           —           —          —     

John Murphy

     —           —          —           —           —           —          —           —           —          —     

Neil Simpkins(4)

     —           —          —           —           —           —          —           —           —          —     

Ted Gardner(5)

     100         *        —           —           124         17.13     —           —           224        *   

Julia Kahr(6)

     —           —          —           —           —           —          —           —           —          —     

All Directors and Executive Officers as a Group (13 persons)

     233         *        —           —           288         39.78     —           —           521        1.25

 

* Less than 1%.

 

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(1) Units of Parent shown as beneficially owned by the Blackstone Funds (as hereinafter defined) are held by the following entities: (i) Blackstone Capital Partners (Cayman) V-NQ L.P. (“BCP Cayman V”) owns 23,602 Class A-1 Units representing 75.49% of the outstanding Class A Units of Parent; (ii) Blackstone Capital Partners (Cayman) NQ V-AC L.P. (“BCP Cayman NQ”) owns 4,975 Class A-1 Units representing 15.91% of the outstanding Class A Units of Parent; (iii) Summit BCP Intermediate Holdings L.P. (“Summit BCP”) owns 536 Class A-1 Units representing 1.71% of the outstanding Class A Units of Parent; (iv) Blackstone Participation Partnership (Cayman) V-NQ L.P. (“BPP”) owns 22 Class A-1 Units representing 0.07% of the outstanding Class A-1 Units of Parent; and (v) Blackstone Family Investment Partnership (Cayman) V-NQ L.P. (“BFIP”) owns 38 Class A-1 Units representing 0.12% of the outstanding Class A Units of Parent (BCP Cayman V, BCP Cayman NQ, Summit BCP, BPP and BFIP are collectively referred to as the “Blackstone Funds”). The general partner of BCP Cayman V and BCP Cayman NQ is Blackstone Management Associates (Cayman) V-NQ L.P. The general partner of Summit BCP is Summit BCP Intermediate Holdings GP, Ltd., and BFIP is the sole member and controlling entity of Summit BCP. The general partner and controlling entity of BFIP, BPP and Blackstone Management Associates (Cayman) V-NQ L.P. is BCP V-NQ GP L.L.C. Blackstone Holdings III L.P. is the managing member and majority interest owner of BCP V-NQ GP L.L.C. Blackstone Holdings III L.P. is indirectly controlled by The Blackstone Group L.P. and is owned, directly or indirectly, by Blackstone professionals and The Blackstone Group L.P. The Blackstone Group L.P. is controlled by its general partner, Blackstone Group Management L.L.C., which is in turn wholly-owned by Blackstone’s senior managing directors and controlled by its founder, Stephen A. Schwarzman. Each of such Blackstone entities and Mr. Schwarzman may be deemed to beneficially own the securities beneficially owned by the Blackstone Funds directly or indirectly controlled by it or him, but each disclaims beneficial ownership of such securities except to the extent of its or his indirect pecuniary interest therein. The address of each of the Blackstone entities listed in this note is c/o The Blackstone Group L.P., 345 Park Avenue, New York, NY 10154.
(2) The limited partnership agreement of Parent Holdings (i) provides that, prior to an initial public offering, the Blackstone Funds have the right to require each unit owned by an employee to participate in any transaction constituting a change of control or the sale of all or substantially all of the assets of Parent to a third-party (in either case, with respect to U.S. investments only, non-U.S. investments only or both) and (ii) generally restricts the transfer of each unit owned by an employee until twelve months following an initial public offering. As a result, the Blackstone Funds may be deemed to beneficially own 95.60% of outstanding units of Parent. The units of Parent held by employees that may be so deemed beneficially owned by the Blackstone Funds are not reported in the table above. For additional information, see “Executive Compensation” and “Certain Relationships and Related Party Transactions, and Director Independence.”
(3) Silverhawk Summit, L.P.is controlled by Silverhawk Capital Partners GP II, L.P. and is owned, directly or indirectly, by Silverhawk Capital Partners, LLC. The address of each of the Silverhawk entities listed in this note is c/o Silverhawk Capital Partners, LLC, 140 Greenwich Ave, 2nd Floor, Greenwich, CT 06830.
(4) Mr. Simpkins is a Senior Managing Director of The Blackstone Group. Mr. Simpkins disclaims beneficial ownership of any shares owned directly or indirectly by the Blackstone Funds, except to the extent of his indirect pecuniary interest therein. Mr. Simpkins’ address is c/o The Blackstone Group, L.P., 345 Park Avenue, New York, NY 10017.
(5) Mr. Gardner is a Managing Partner of Silverhawk Capital Partners, LLC. Mr. Gardner disclaims beneficial ownership of any shares owned directly or indirectly by Silverhawk, except to the extent of his indirect pecuniary interest therein. Mr. Gardner’s address is c/o Silverhawk Capital Partners, LLC, 140 Greenwich Ave, 2nd Floor, Greenwich, CT 06830.
(6) Ms. Kahr is a Managing Director of The Blackstone Group. Ms. Kahr disclaims beneficial ownership of any shares owned directly or indirectly by the Blackstone Funds, except to the extent of his indirect pecuniary interest therein. Ms. Kahr’s address is c/o The Blackstone Group L.P., 345 Park Avenue, New York, NY 10017.

 

108


ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE.

Transaction and Management Fee Agreement

In connection with the formation of Parent, Parent entered into a transaction and management fee agreement with Blackstone Management Partners L.L.C. (“BMP”). Under this agreement, BMP (including through its affiliates) agreed to provide monitoring, advisory and consulting services relating to Parent and its subsidiaries. In consideration for the services, Parent will pay, or cause to be paid, to BMP a management fee which, for the year ended December 31, 2010 and subsequent years, is equal to the greater of $300,000 or 2.0% of Parent’s consolidated profit, as defined in the transaction and management fee agreement, for the immediately preceding fiscal year. BMP shall have no obligation to provide any other services to Parent absent express agreement. In addition, in consideration of BMP undertaking financial and structural analysis, due diligence investigations, corporate strategy and other advice and negotiation assistance necessary to enable Parent and its subsidiaries to undertake acquisitions, the Partnership will pay to BMP a transaction fee equal to (x) 1.0% of the aggregate enterprise value of any acquired entity or (y) if such transaction is structured as an asset purchase or sale, 1.0% of the consideration paid for or received in respect of the assets acquired or disposed of. In addition, Parent has agreed to indemnify BMP and its affiliates against liabilities relating to the services contemplated by the transaction and management fee agreement and will reimburse BMP and its affiliates for out-of-pocket expenses incurred in connection with providing such services. Under the management fee agreement, during the years ended December 28, 2013, December 29, 2012 and December 31, 2011, Summit Materials paid BMP management fees of $2.6 million, $2.1 million and $3.0 million, respectively.

At any time in connection with or in anticipation of a change of control of Parent, a sale of all or substantially all of Parent’s assets or an initial public offering of common equity of Parent or its successor (including any other entity used as a vehicle for an initial public offering), BMP may elect to receive, subject to the achievement of certain thresholds, in consideration of BMP’s role in facilitating such transaction and in settlement of the termination of the services provided under the transaction and management fee agreement, a single lump sum cash payment equal to the then-present value of all then-current and future annual management fees payable under the transaction and management fee agreement, assuming a hypothetical organic consolidated EBITDA growth rate equal to the growth rate over the prior twelve months and a termination date of the agreement to be the tenth anniversary of the date of the agreement. The transaction and management fee agreement will continue until the earlier of (x) the tenth anniversary of the date of the agreement, (y) the date BMP ceases to perform services and provides written notice thereof to Parent, or (z) such earlier date as Parent and BMP may mutually agree in writing.

Under the transaction and management fee agreement, BMP is permitted to, and has, assigned a portion of the fees to which it is entitled to receive from Parent thereunder to Silverhawk Summit, L.P. and to certain members of management. No transaction fees were paid in 2013 or 2012 and $0.8 million was paid in 2011.

Limited Partnership Agreement of Parent

The Sponsors and certain of our current and former officers, directors, employees and certain investors who rolled over equity in companies we acquired, indirectly beneficially own our equity interests through their respective ownership of partnership interests in Parent. Certain members of management indirectly beneficially own equity interests in Summit Materials through their respective ownership of certain classes of incentive partnership interests in Parent issued as part of an equity incentive program. Summit Materials is indirectly 100 percent-owned and controlled by Parent.

The limited partnership agreement of Parent provides that, except as otherwise set forth in the agreement, Parent GP has the exclusive right to manage, conduct and control the business of Parent. The agreement also includes provisions with respect to restrictions on transfer of partnership interests, rights of first offer, tag-along rights, drag-along rights and the right of Blackstone to cause an initial public offering, as well as certain other provisions, including with respect to registration rights and certain approval rights.

Shareholders Agreement of Parent GP

Parent GP is party to a shareholders agreement with Blackstone, Silverhawk, our chief executive officer, Tom Hill, Ted Gardner, Michael Brady and certain other shareholders, which governs certain matters relating to ownership of Parent GP, including with respect to restrictions on the issuance or transfer of shares, affiliate transactions and various corporate governance matters. Pursuant to the terms of the shareholders agreement, Parent GP is managed by a board of directors, currently consisting of six individuals, three of whom are nominees of Blackstone, one of whom is a nominee of Silverhawk, one of whom is a nominee of Tom Hill and Ted Gardner and one of whom is our chief executive officer. Under the shareholders agreement, owners of Class A interests of Parent are required to own shares of Parent GP. The majority of Parent GP is owned by Blackstone.

Management Equity Purchase Plan

Parent maintains equity incentive arrangements for executives and other senior management employees. Consistent with these arrangements, certain members of our management team have purchased and/or received, and may, from time to time, purchase and/or receive, equity interests or profit interests in Parent. Such purchases or awards of equity interests or profit interests may represent a substantial portion of the equity or profits of Parent.

 

109


Commercial Transactions with Sponsor Portfolio Companies

Our Sponsors and their respective affiliates have ownership interests in a broad range of companies. We have entered and may in the future enter into commercial transactions in the ordinary course of our business with some of these companies, including the sale of goods and services and the purchase of goods and services. None of these transactions or arrangements is expected to be material to us.

Procedures with Respect to Review and Approval of Related Person Transactions

Parent GP has not adopted a formal written policy for the review and approval of transactions with related persons. However, the limited partnership agreement of Parent provides that the members of the board of directors of Parent GP shall review and approve transactions with related persons in certain circumstances.

Other

We purchased equipment from a noncontrolling member of Continental Cement for approximately $2.3 million, inclusive of $0.1 million of interest, in 2011, which was paid for in 2012.

We earned revenue of $0.6 million, $7.9 million and $8.6 million and incurred costs of $0.2 million, $0.2 million and $0.7 million in connection with several transactions with unconsolidated affiliates for the years ended December 28, 2013, December 29, 2012 and December 31, 2011, respectively. We had immaterial revenue from unconsolidated affiliates in the year ended December 28, 2013. As of December 28, 2013 and December 29, 2012, accounts receivable from affiliates was $0.4 million and $1.9 million, respectively, and accounts payable to affiliates was zero and $0.2 million, respectively.

Cement sales to companies owned by certain noncontrolling members of Continental Cement were approximately $12.7 million, $12.5 million and $9.5 million for the years ended December 28, 2013, December 29, 2012 and December 2011, respectively, and accounts receivables due from these parties were approximately $0.2 million and $1.0 million as of December 28, 2013 and December 29, 2012, respectively.

We owe $0.7 million as of December 28, 2013 to a noncontrolling member of Continental Cement for accrued interest on a related party note, which is expected to be fully settled by 2014. The principal balance on the note was repaid as part of the January 2012 financing transactions.

Lease payments of $0.6 million, $1.0 million and $0.4 million and were made to related parties for the years ended December 28, 2013, December 29, 2012 and December 31, 2011, respectively.

 

ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES.

The audit committee of the Board has the sole authority to retain and terminate the Company’s independent auditors and the independent auditors report directly to the audit committee. The audit committee is also responsible for the compensation and oversight of the work of the independent auditors for the purpose of preparing or issuing an audit report or related work.

The audit committee performs procedures to ensure that all auditing services and permitted non-audit services (including the fees and term thereof) to be performed for the Company by the independent auditors are approved by the audit committee in accordance with applicable legal and regulatory requirements. The audit committee may form subcommittees and delegate authority hereunder as it deems appropriate, including the authority to grant preapprovals of audit and permitted non-audit services.

 

110


The table below summarizes the aggregate fees billed to Summit Materials by KPMG LLP in 2013 and 2012, which were all pre-approved by the audit committee. A description of these various fees and services follows the table.

 

(in thousands)    2013      2012  

Audit Fees

   $ 2,200       $ 1,628   

Tax Fees

     727         9   
  

 

 

    

 

 

 

Total

   $ 2,927       $ 1,637   
  

 

 

    

 

 

 

Audit Fees

The aggregate fees billed for professional services by KPMG LLP for the audit of our financial statements, reviews of our quarterly financial statements and services associated with other Securities and Exchange Commission filings.

Tax Fees

The aggregate fees billed for professional services by KPMG LLP in connection with routine tax compliance, general tax consulting services and services related to state tax audits.

 

111


PART IV

 

ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.

 

1.      Financial statements:

  

Consolidated Balance Sheets

  

Consolidated Statements of Operations

  

Consolidated Statements of Comprehensive (Loss) Income

  

Consolidated Statements of Cash Flows

  

Consolidated Statements of Redeemable Noncontrolling Interest and Member’s Interest

  

2.      Financial statement schedules:

  

Financial statement schedules are omitted because of the absence of conditions under which they are required or because the required information is provided in the financial statements or notes thereto.

  

 

3. Exhibits:

 

3.1    Certificate of Formation of Summit Materials, LLC, as amended (incorporated by reference from Exhibit 3.1 to the registrant’s Registration Statement on Form S-4, filed on March 27, 2013 (File No. 333-187556)).
3.2    Amended and Restated Limited Liability Company Agreement of Summit Materials, LLC (incorporated by reference from Exhibit 3.2 to the registrant’s Registration Statement on Form S-4, filed on March 27, 2013 (File No. 333-187556)).
4.1    Indenture, dated as of January 30, 2012, among Summit Materials, LLC, Summit Materials Finance Corp., the guarantors named therein and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 4.1 of the registrant’s Registration Statement on Form S-4, filed March 27, 2013 (File No. 333-187556)).
4.2    First Supplemental Indenture, dated as of March 13, 2012, among Norris Quarries, LLC and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 4.2 of the registrant’s Registration Statement on Form S-4, filed March 27, 2013 (File No. 333-187556)).
4.3    Second Supplemental Indenture, dated as of January 17, 2014, among Summit Materials, LLC, Summit Materials Finance Corp., the guarantors named therein and Wilmington Trust, National Association, as trustee (incorporated by reference to Exhibit 4.4 filed with the registrant’s Current Report on Form 8-K, filed January 23, 2014 (File No. 333-187556)).
4.4*    Third Supplemental Indenture, dated as of February 21, 2014, among Alcomat, LLC, Alleyton Resource Company, LLC, Alleyton Services Company, LLC and Wilmington Trust, National Association, as trustee.
4.5    Form of 10.5% Senior Note due 2020 (included in Exhibit 4.1).
4.6    Registration Rights Agreement, dated as of January 17, 2014, among Summit Materials, LLC, Summit Materials Finance Corp., the guarantors named therein, Merrill Lynch, Pierce, Fenner & Smith Incorporated and the several other initial purchasers (incorporated by reference to Exhibit 4.5 filed with the registrant’s Current Report on Form 8-K, filed January 23, 2014 (File No. 333-187556)).
10.1    Credit Agreement, dated as of January 30, 2012, by and among Summit Materials, LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Citigroup Global Markets Inc., as joint lead arrangers, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., UBS Securities LLC, Barclays Capital, Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc., as joint bookrunners, Bank of America, N.A., as administrative agent, collateral agent and swing line lender, Bank of America, N.A., as letter of credit issuer, and Citigroup Global Markets Inc., as syndication agent (incorporated by reference to Exhibit 10.1 of Amendment No. 1 to the registrant’s Registration Statement on Form S-4, filed May 3, 2013 (File No. 333-187556)).

 

112


10.2   Amendment No. 1, dated as of February 5, 2013, to the Credit Agreement, dated as of January 30, 2012, by and among Summit Materials, LLC, Bank of America, N.A. as sole lead arranger, and Bank of America, N.A. and Citigroup Global Markets Inc., as joint bookrunners (incorporated by reference to Exhibit 10.2 of the registrant’s Registration Statement on Form S-4, filed March 27, 2013 (File No. 333-187556)).
10.3   Amendment No. 2, dated as of January 16, 2014, to the Credit Agreement, dated as of January 30, 2012, by and among Summit Materials, LLC, the guarantors party thereto, Bank of America, N.A., as administrative agent, collateral agent, L/C issuer and swing line lender and the other parties thereto (incorporated by reference to Exhibit 10.1 filed with the registrant’s Current Report on Form 8-K, filed January 23, 2014 (File No. 333-187556)).
10.4   Tranche A Revolving Credit Commitment Conversion Agreement, dated as of February 11, 2013, under the Credit Agreement, dated as of January 30, 2012, among Summit Materials, LLC, the guarantors party thereto, the several banks and other financial institutions or entities from time to time parties to the Credit Agreement, Bank of America, N.A., as administrative agent, collateral agent, L/C issuer and swing line lender and the other parties thereto (incorporated by reference to Exhibit 10.3 of the registrant’s Registration Statement on Form S-4, filed March 27, 2013 (File No. 333-187556)).
10.5   Security Agreement, dated as of January 30, 2012, by and among the grantors identified therein and Bank of America, N.A., as collateral agent (incorporated by reference to Exhibit 10.4 of the registrant’s Registration Statement on Form S-4, filed March 27, 2013 (File No. 333-187556)).
10.6*   Acquisition Agreement, dated as of December 5, 2013, among Alleyton Resource Corporation, Colorado Gulf, LP, Texas CGC, LLC, Barten Shepard Investments, LP, TBGSI Corp., the individuals signatory thereto and Summit Materials, LLC.
10.7*   Amendment dated January 14, 2014, to Acquisition Agreement, dated as of December 5, 2013, among Alleyton Resource Corporation, Colorado Gulf, LP, Texas CGC, LLC, Barten Shepard Investments, LP, TBGSI Corp., the individuals signatory thereto and Summit Materials, LLC.
10.8*+   Form of Management Interest Subscription Agreement for executive officers.
10.9*+   Form of Management Interest Subscription Agreement for directors.
10.10+   Employment Agreement, dated July 30, 2009, by and between Summit Materials Holdings L.P. and Thomas Hill (incorporated by reference to Exhibit 10.5 to the registrant’s Registration Statement on Form S-4, filed on March 27, 2013 (File No. 333-187556).
10.11+   Employment Agreement, dated December 29, 2011, by and between Summit Materials Holdings L.P. and Douglas Rauh (incorporated by reference to Exhibit 10.6 to the registrant’s Registration Statement on Form S-4, filed on March 27, 2013 (File No. 333-187556).
10.12*+   Employment Agreement, dated November 11, 2013, by and between Summit Materials Holdings L.P. and Kevin Gill.
10.13+   Employment Agreement, dated May 20, 2013, by and between Summit Materials Holdings L.P. and Julio Ramirez (incorporated by reference to Exhibit 10.7 to the registrant’s Registration Statement on Form S-4, filed on May 24, 2013 (File No. 333-187556).
10.14+   Agreement and Release between Summit Materials Holdings L.P. and Julio Ramirez, Chief Financial Officer (incorporated by reference to Exhibit 10.1 to the registrant’s Quarterly Report on Form 10-Q, filed November 6, 2011 (File No. 333-187556)).
10.15+   Compensation Arrangement between Summit Materials Holdings L.P. and John Murphy, Interim Chief Financial Officer (incorporated by reference to Exhibit 10.2 to the registrant’s Quarterly Report on Form 10-Q, filed November 6, 2011 (File No. 333-187556)).
10.16+   Employment Agreement, dated as of November 20, 2013, between Summit Materials Holdings L.P. and Brian J. Harris (incorporated by reference to Exhibit 10.1 to the registrant’s Quarterly Report on Form 10-Q, filed November 6, 2011 (File No. 333-187556)).
12.1*   Computation of ratio of earnings to fixed charges
21*   Subsidiaries of Summit Materials, LLC
31.1*   Certification of the Chief Executive Officer pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

 

113


31.2*   Certification of the Chief Financial Officer pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1**   Certification of the Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2**   Certification of the Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
95.1*   Mine Safety Disclosures.
99.1*   Section 13(r) Disclosure.
101.1NS*   XBRL Instance Document
101.SCH*   XBRL Taxonomy Extension Schema Document.
101.CAL*   XBRL Taxonomy Extension Calculation Linkbase Document.
101.DEF*   XBRL Taxonomy Extension Definition Linkbase Document.
101.LAB*   XBRL Taxonomy Extension Label Linkbase Document.
101.PRE*   XBRL Taxonomy Extension Presentation Linkbase Document.

 

* Filed herewith
** Furnished herewith
+  

Indicates management or compensating plan or arrangement

The agreements and other documents filed as exhibits to this report are not intended to provide factual information or other disclosure other than with respect to the terms of the agreements or other documents themselves, and you should not rely on them for that purpose. In particular, any representations and warranties made by us in these agreements or other documents were made solely within the specific context of the relevant agreement or document and may not describe the actual state of affairs as of the date they were made or at any other time.

 

114


SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

    SUMMIT MATERIALS, LLC
Date: March 7, 2014     By:   /s/ Brian J. Harris
      Brian J. Harris

Pursuant to the requirements of the Securities Act of 1934, this report has been signed by the following persons in the capacities indicated on the 7 th day of March, 2014.

 

Signature

  

Title

/s/ Thomas W. Hill

Thomas W. Hill

  

President and Chief Executive Officer; Director of

Summit Materials Holdings GP, Ltd. (“Parent GP”)

(Principal Executive Officer)

/s/ Brian J. Harris

Brian J. Harris

  

Chief Financial Officer

(Principal Financial and Accounting Officer)

/s/ Ted A. Gardner

Ted A. Gardner

   Director of Parent GP

/s/ Julia C. Kahr

Julia C. Kahr

   Director of Parent GP

/s/ Howard L. Lance

Howard L. Lance

   Director of Parent GP

/s/ John R. Murphy

John R. Murphy

   Director of Parent GP

/s/ Neil P. Simpkins

Neil P. Simpkins

   Director of Parent GP

 

115

Exhibit 4.4

THIRD SUPPLEMENTAL INDENTURE

Third Supplemental Indenture (this “ Supplemental Indenture ”), dated as of February 21, 2014, among Alcomat, LLC, a Delaware limited liability company, Alleyton Resource Company, LLC, a Delaware limited liability company and Alleyton Services Company, LLC, a Delaware limited liability company (each, a “ Guaranteeing Subsidiary ” and collectively, the “ Guaranteeing Subsidiaries ”), each a subsidiary of Summit Materials, LLC, a Delaware limited liability company (the “ Company ”), and Wilmington Trust, National Association, a national banking association, as trustee (the “ Trustee ”).

W I T N E S S E T H

WHEREAS, the Company, Summit Materials Finance Corp., a Delaware corporation (the “ Co-Issuer ”, and together with the Company, the “ Issuers ”), and certain Guarantors have heretofore executed and delivered to the Trustee an Indenture (the “ Indenture ”), dated as of January 30, 2012, providing for the issuance of an unlimited aggregate principal amount of 10.5% Senior Notes due 2020 (the “ Notes ”), as supplemented by that First Supplemental Indenture, dated as of March 13, 2012, and further supplemented by that Second Supplemental Indenture, dated as of January 17, 2014;

WHEREAS, the Indenture provides that under certain circumstances each Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which such Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuers’ Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the “ Guarantee ”); and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture, without the consent of the holders of the Notes.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:

(1) Capitalized Terms . Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

(2) Agreement to Guarantee . Each Guaranteeing Subsidiary acknowledges that it has received and reviewed a copy of the Indenture and all other documents it deems necessary to review in order to enter into this Supplemental Indenture, and acknowledges and agrees to (i) join and become a party to the Indenture as indicated by its signature below; (ii) be bound by the Indenture, as of the date hereof, as if made by, and with respect to, each signatory hereto; and (iii) perform all obligations and duties required of a Guarantor pursuant to the Indenture. Each Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Indenture, including, but not limited to, Article 10 thereof.

(3) Execution and Delivery . Each Guaranteeing Subsidiary agrees that the Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.

(4) No Recourse Against Others . No past, present or future director, officer, employee, incorporator, member, partner or stockholder of the Issuers or any Guaranteeing Subsidiary (other than the Issuers and the Guarantors) shall have any liability for any obligations of the Issuers or the Guarantors (including any Guaranteeing Subsidiary) under the Notes, any Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.

(5) Governing Law . THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


(6) Counterparts . The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. This Supplemental Indenture may be executed in multiple counterparts which, when taken together, shall constitute one instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmissions shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

(7) Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction hereof.

(8) The Trustee . The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiaries.

(9) Benefits Acknowledged . Each Guaranteeing Subsidiary’s Guarantee is subject to the terms and conditions set forth in the Indenture. Each Guaranteeing Subsidiary acknowledges that they will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by them pursuant to this Guarantee are knowingly made in contemplation of such benefits.

(10) Successors . All agreements of each Guaranteeing Subsidiary in this Supplemental Indenture shall bind their respective Successors, except as otherwise provided in this Supplemental Indenture. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.

[ Signatures on following page ]

 

2


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.

 

ALCOMAT, LLC
By:   /s/ Anne L. Benedict
  Name: Anne L. Benedict
  Title: Secretary

 

ALLEYTON RESOURCE COMPANY, LLC
By:   /s/ Anne L. Benedict
  Name: Anne L. Benedict
  Title: Secretary

 

ALLEYTON SERVICES COMPANY, LLC
By:   /s/ Anne L. Benedict
  Name: Anne L. Benedict
  Title: Secretary

[Signature Page to Third Supplemental Indenture]


WILMINGTON TRUST, NATIONAL ASSOCIATION, as

Trustee

By:   /s/ Joseph O’Donnell
  Name: Joseph O’Donnell
  Title: Vice President

[Signature Page to Third Supplemental Indenture]

Exhibit 10.6

Execution Version

 

 

ACQUISITION AGREEMENT

Among

ALLEYTON RESOURCE CORPORATION,

COLORADO GULF, LP,

TEXAS CGC, LLC,

BARTEN SHEPARD INVESTMENTS, LP,

TBGSI CORP.,

THE INDIVIDUALS SIGNATORY HERETO

and

SUMMIT MATERIALS, LLC

Dated as of December 5, 2013

 

 


TABLE OF CONTENTS

 

     Page  

ARTICLE I. DEFINED TERMS

     2   

ARTICLE II. PURCHASE AND SALE

     4   

SECTION 2.1

  Conversions of Alleyton, Colorado and Alcomat      4   

SECTION 2.2

  Acquisition of Equity Interests and BSI Properties      4   

SECTION 2.3

  Closing      5   

SECTION 2.4

  Subsequent Actions      5   

SECTION 2.5

  Closing Date Companies Purchase Price      5   

SECTION 2.6

  BSI Properties Purchase Price      7   

SECTION 2.7

  Installment Payments; Non-Compete Payments      7   

SECTION 2.8

  Earn-out      8   

SECTION 2.9

  The Estimated Purchase Price      8   

SECTION 2.10

  Expenses      8   

SECTION 2.11

  Summit Equity Purchase.      9   

SECTION 2.12

  Closing Date Companies Purchase Price True-Up.      9   

SECTION 2.13

  Allocation of Purchase Price      10   

SECTION 2.14

  Different Consideration      10   

ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE SELLER PARTIES

     11   

SECTION 3.1

  Authority, Power and Capacity      11   

SECTION 3.2

  Interests Ownership      11   

SECTION 3.3

  Conflicting Instruments; Consents.      12   

SECTION 3.4

  Organization and Authority.      12   

SECTION 3.5

  Subsidiaries and Affiliates      13   

SECTION 3.6

  Financial Statements.      13   

SECTION 3.7

  Properties and Assets of the Companies; BSI Properties.      14   

SECTION 3.8

  Personnel.      17   

SECTION 3.9

  Labor Matters.      17   

SECTION 3.10

  Environmental Claims.      18   

SECTION 3.11

  Non-ERISA Plans      20   

SECTION 3.12

  ERISA Plans      20   

SECTION 3.13

  Compliance with Laws; Permits      22   

SECTION 3.14

  Litigation      22   

SECTION 3.15

  Material Contracts      22   

SECTION 3.16

  Conduct of Business      23   

SECTION 3.17

  Tax Matters      24   

SECTION 3.18

  Insurance      26   

SECTION 3.19

  Corporate Name      26   

SECTION 3.20

  Transactions with Related Parties      26   

SECTION 3.21

  Bank Accounts      26   

SECTION 3.22

  Product Liability      26   

 

i


SECTION 3.23

  Customers      27   

SECTION 3.24

  Brokerage      27   

ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF ACQUIROR

     27   

SECTION 4.1

  Organization      27   

SECTION 4.2

  Authority      27   

SECTION 4.3

  Governmental Authorization      27   

SECTION 4.4

  Non-Contravention      27   

SECTION 4.5

  Litigation      28   

SECTION 4.6

  Brokerage      28   

ARTICLE V. COVENANTS

     28   

SECTION 5.1

  Access      28   

SECTION 5.2

  Conduct of the Business of the Companies      28   

SECTION 5.3

  Third Party Consents      30   

SECTION 5.4

  Notice of Default of the Seller Parties      31   

SECTION 5.5

  Non-Compete and Non-Solicitation      31   

SECTION 5.6

  Confidentiality      32   

SECTION 5.7

  Public Announcements      33   

SECTION 5.8

  Exclusivity      33   

SECTION 5.9

  Financing      34   

SECTION 5.10

  Notice of Default of Acquiror      35   

SECTION 5.11

  Title Documents      35   

SECTION 5.12

  Financial Reporting      36   

SECTION 5.13

  Trust Property      36   

SECTION 5.14

  Waiver of Buy-Sell Agreements      36   

SECTION 5.15

  Colorado County Aggregates Reserves      36   

SECTION 5.16

  Schedule Amendments      37   

SECTION 5.17

  Vox Property Development      37   

SECTION 5.18

  Brune Lease and Adjacent Property      37   

SECTION 5.19

  Appraisals      37   

ARTICLE VI. INDEMNIFICATION

     38   

SECTION 6.1

  Indemnification of Acquiror      38   

SECTION 6.2

  Indemnification by Acquiror      38   

SECTION 6.3

  Limitations on Indemnification      39   

SECTION 6.4

  Defense by the Indemnifying Parties      40   

SECTION 6.5

  Manner of Indemnification      40   

SECTION 6.6

  Intentionally Omitted      41   

SECTION 6.7

  Exclusive Remedy      41   

SECTION 6.8

  Accounts Receivable      41   

SECTION 6.9

  Tax Matters      41   

 

ii


ARTICLE VII. CONDITIONS TO ACQUIROR’S OBLIGATIONS

     43   

SECTION 7.1

  Representations and Warranties; Covenants      43   

SECTION 7.2

  Certain Deliverables      43   

SECTION 7.3

  Material Adverse Change      44   

SECTION 7.4

  Related Party Advances      45   

SECTION 7.5

  Legal Proceedings      45   

SECTION 7.6

  General Release      45   

SECTION 7.7

  Illegality      45   

SECTION 7.8

  Third Party Consents      45   

SECTION 7.9

  HSR Act      45   

SECTION 7.10

  Financing      45   

SECTION 7.11

  Indebtedness      45   

SECTION 7.12

  Diligence      45   

SECTION 7.13

  Employment Agreements      46   

SECTION 7.14

  Kleimann Lease      46   

ARTICLE VIII. CONDITIONS TO THE SELLERS’ OBLIGATIONS

     46   

SECTION 8.1

  Representations and Warranties; Covenants      46   

SECTION 8.2

  Certain Deliverables      46   

SECTION 8.3

  Legal Proceedings      46   

SECTION 8.4

  Illegality      47   

SECTION 8.5

  HSR Act      47   

ARTICLE IX. TERMINATION

     47   

SECTION 9.1

  Termination      47   

SECTION 9.2

  Effect of Termination      47   

ARTICLE X. MISCELLANEOUS

     48   

SECTION 10.1

  Survival of Representations, Warranties and Covenants      48   

SECTION 10.2

  Expenses      48   

SECTION 10.3

  Governing Law      48   

SECTION 10.4

  Notices      48   

SECTION 10.5

  Jurisdiction; Agent for Service; Waiver of Jury Trial      49   

SECTION 10.6

  Entire Agreement      49   

SECTION 10.7

  Binding Effect      49   

SECTION 10.8

  Amendments; Waivers      49   

SECTION 10.9

  Counterparts      50   

SECTION 10.10

  Severability      50   

SECTION 10.11

  Intentionally Omitted      50   

SECTION 10.12

  No Third-Party Beneficiaries      50   

SECTION 10.13

  Obligations of Holders      50   

SECTION 10.14

  Interpretation      50   

SECTION 10.15

  Seller Representative      50   

 

iii


SECTION 10.16

  Compensation; Exculpation.      53   

SECTION 10.17

  Accredited Investor Representations      53   

 

Exhibits

Exhibit A       FORM OF ALCOMAT FORMATION DOCUMENTS
Exhibit B       FORM OF COLORADO FORMATION DOCUMENTS
Exhibit C       FORM OF ALLEYTON FORMATION DOCUMENTS
Exhibit D       FORM OF EARN-OUT
Exhibit E       FORM OF BSI PROPERTIES DEEDS
Exhibit F       FORM OF SPOUSAL CONSENT
Exhibit G       FORM OF GENERAL RELEASE
Exhibit H       ACCREDITED INVESTOR REPRESENTATIONS
Exhibit I       FORM OF EMPLOYMENT AGREEMENT

 

iv


ACQUISITION AGREEMENT

THIS ACQUISITION AGREEMENT, dated as of December 5, 2013 (this “ Agreement ”), is by and among Summit Materials, LLC, a Delaware limited liability company (“ Acquiror ”), Alleyton Resource Corporation, a Texas corporation (“ Alleyton ”), Colorado Gulf, LP, a Texas limited partnership (“ Colorado ”), Texas CGC, LLC, a Texas limited liability company (“ CGC ”), Barten Shepard Investments, LP, a Texas limited partnership (“ BSI ”), TBGSI Corp., a Texas corporation (“ TBGSI ”), and the individuals signatory hereto (collectively the “ Equityholders ”). Alleyton and Colorado are sometimes each referred to as a “ Company ” and collectively as the “ Companies ”.

RECITALS

A. Alleyton, located in the Houston, Texas area, conducts the following businesses: (i) the production and sale of ready-mixed concrete; (ii) concrete pumping; (iii) aggregate production, storage and sale; and (iv) trucking and hauling of aggregate products (collectively, along with related activities, the “ Business ”).

B. Colorado, located in the Houston, Texas area is in the business of arranging trucking services for Alleyton and third parties.

C. BSI owns (i) the property informally known as the Monahan Plant Property including the surface rights and rights to the sand and gravel therein, as more fully described on Schedule 3.7(b) hereto (the “ Monahan Property ”), and (ii) the property informally known as the Vox property, including the surface rights thereof, as more fully described on Schedule 3.7(b) hereto (the “ Vox Property ” and together with the Monahan Property, the “ BSI Properties ”).

D. The respective Equityholders set forth on Schedule 3.2 hereto own the equity interests in Alleyton set forth thereon (the “ Alleyton Sellers ”); the respective Equityholders set forth on Schedule 3.2 hereto and CGC own the equity interests in Colorado set forth thereon (the “ Colorado Sellers ”); and the respective Equityholders set forth on Schedule 3.2 hereto and TBGSI own the equity interests in BSI set forth thereon (the “ BSI Holders ”).

E. No later than two Business Days prior to the Closing Date and as more specifically provided for herein, Alcomat, Inc., a Texas corporation (“ Alcomat ”), a wholly-owned subsidiary of Alleyton, will convert into a Delaware limited liability company.

F. No later than one Business Day prior to the Closing Date and as more specifically provided for herein, Colorado will convert into a Delaware limited liability company.

G. No later than one Business Day prior to the Closing Date and as more specifically provided for herein, Alleyton will convert into a Delaware limited liability company.

H. The Alleyton Sellers desire to transfer and sell the limited liability company units in Alleyton and the Colorado Sellers desire to transfer and sell the limited liability company units in Colorado to Acquiror and the BSI Holders and BSI desire to sell the BSI Properties, and Acquiror desires to acquire such equity interests and properties as more fully set forth herein.

 

1


AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained in this Agreement and for other valuable consideration, the Equityholders, the Companies, BSI, CGC, TBGSI and Acquiror agree as follows:

ARTICLE I.

DEFINED TERMS

The following terms have the meanings set forth in the pages indicated below:

 

Acquiror

     1   

Acquiror Indemnified Parties

     38   

Acquiror Indemnifying Party

     38   

Adjacent Property

     37   

affiliate

     32   

Agreement

     1   

Alcomat

     1   

Alcomat Balance Sheet

     13   

Alcomat Properties

     35   

Alcomat Title Insurance Policies

     35   

Alcomat Title Objections

     36   

Alleyton

     1   

Alleyton Balance Sheet

     13   

Alleyton Sellers

     1   

Alleyton Units

     4   

Allied Concrete return

     26   

Ancillary Agreements

     7   

Asbestos Claims

     22   

Balance Sheet Date

     13   

Balance Sheets

     13   

Brune Lease

     37   

Brune Property

     37   

BSI

     1   

BSI Holders

     1   

BSI Interests

     11   

BSI Properties

     1   

BSI Properties Deeds

     43   

BSI Title Documents

     15   

Business

     1   

Business Day

     5   

Buy-Sell Agreements

     36   

Cash

     6   

CGC

     1   

Claim

     19   

Closing

     5   

Closing Cash

     6   

Closing Date

     5   

Closing Date Companies Purchase
Price

     5   

Closing Date Net Working Capital

     6   

Closing Date Receivables

     41   

Closing Indebtedness

     6   

Closing Share

     8   

Co-investment

     9   

Colorado

     1   

Colorado Balance Sheet

     13   

Colorado Cash

     6   

Colorado County Aggregates
Reserves Agreements

     36   

Colorado Sellers

     1   

Colorado Units

     4   

Companies

     1   

Company

     1   

Company Employee

     17   

Confidential Information

     33   

Contest

     42   

Conversion

     4   

Customer

     32   

Cut-Off Date

     37   

Deficiency

     10   

Designated Accounts

     8   

Disclosure Schedules

     11   

Easements

     16   

Employment Agreements

     46   

Encumbrances

     14   

Environmental Claims

     39   

Environmental Damages

     19   

Environmental Requirements

     19   

Equity Interest Sellers

     8   

Equity Interests

     4   

Equityholders

     1   

ERISA

     20   

ERISA Plans

     20   

Estimated Purchase Price

     6   
 

 

2


Estimated Purchase Price
Calculation Statement

     8   

Excess

     10   

Excluded Liabilities

     5   

Final Purchase Price Calculation
Statement

     9   

Financial Statements

     13   

Former Real Property

     19   

Fraud Claim

     39   

Fundamental Claim

     39   

GAAP

     6   

Governmental Authority

     12   

Hazardous Materials

     19   

HSR Act

     12   

Indebtedness

     6   

Indemnified Parties

     38   

Indemnifying Parties

     38   

Independent Accountant

     10   

Installment Share

     7   

IRS

     21   

Law

     12   

Leased Property

     14   

LIBOR Rate

     38   

Losses

     38   

Major Sellers

     7   

Material Adverse Change

     44   

Material Contracts

     23   

Monahan Property

     1   

Names

     26   

Net Working Capital

     6   

Net Working Capital Adjustment

     6   

Net Working Capital Target

     6   

Non-Compete Period

     31   

Non-ERISA Plans

     20   

Notice of Disagreement

     9   

Order

     30   

Organizational Documents

     12   

Owens Property

     17   

Owens Purchase Agreement

     17   

Owens Title Insurance Policy

     36   

Owens Title Objections

     36   

Owned Property

     14   

Partnership Conversion

     4   

Pension Plans

     20   

Permit

     22   

Permitted Encumbrances

     14   

Person

     30   

Principles

     6   

Pro Rata Share

     8   

Proceeding

     12   

Property Leases

     15   

Real Property

     14   

Related Rights

     14   

Release

     19   

Remediation

     19   

Representatives

     33   

Schedule of Expenses

     8   

Seller Indemnified Parties

     38   

Seller Indemnifying Parties

     38   

Seller Parties

     5   

Seller Representative

     50   

Sellers

     5   

Silicosis Claims

     22   

Spousal Consent

     44   

Subsidiary Conversion

     4   

Tax Claim

     39   

tax or taxes

     26   

tax return

     26   

TBGSI

     1   

Termination Date

     47   

Threshold Amount

     39   

Title Documents

     15   

Total Cash at Closing

     5   

Total Purchase Price

     6   

Transaction Expenses

     7   

Transactions

     5   

Trust Property

     36   

Vox Property

     1   

Vox Property Cash

     7   

Vox Property Development

     7   

Vox Property Development
Expenses

     7   

Vox Property Payables

     7   

Welfare Plans

     20   
 

 

3


ARTICLE II.

PURCHASE AND SALE

SECTION 2.1 Conversions of Alleyton, Colorado and Alcomat .

(a) No later than two Business Days prior to the Closing Date and one Business Day prior to the Conversion, Alcomat will convert into a limited liability company under Section 18-214 of the Delaware Limited Liability Company Act (the “ Subsidiary Conversion ”). The certificate of formation and limited liability company agreement of Alcomat as a Delaware limited liability company shall be substantially in the form set forth on Exhibit A hereto. Alcomat as a limited liability company is and shall be considered for all purposes (other than tax) the same company that it was prior to the Subsidiary Conversion and all references to Alcomat herein shall refer to such company as a corporation prior to the Subsidiary Conversion and a limited liability company after the Subsidiary Conversion.

(b) No later than one Business Day prior to the Closing Date, Colorado will convert into a limited liability company under Section 18-214 of the Delaware Limited Liability Company Act (the “ Partnership Conversion ”). The certificate of formation and limited liability company agreement of Colorado as a Delaware limited liability company shall be substantially in the form set forth on Exhibit B hereto. Colorado as a limited liability company is and shall be considered for all purposes the same company that it was prior to the Partnership Conversion and all references to Colorado herein shall refer to such company as a limited partnership prior to the Partnership Conversion and a limited liability company after the Partnership Conversion.

(c) No later than one Business Day prior to the Closing Date, Alleyton will convert into a Delaware limited liability company under Section 18-214 of the Delaware Limited Liability Company Act (the “ Conversion ”), and each of the Alleyton Sellers shall receive one limited liability company unit in such limited liability company for each share of Alleyton held by such Alleyton Seller immediately prior to the Conversion. The certificate of formation and limited liability company agreement of Alleyton shall be substantially in the form set forth on Exhibit C hereto. Alleyton as a limited liability company is and shall be considered for all purposes (other than tax) the same company that it was prior to the Conversion and all references to Alleyton herein shall refer to such company as a corporation prior to the Conversion and a limited liability company after the Conversion.

SECTION 2.2 Acquisition of Equity Interests and BSI Properties .

(a) On the Closing Date, subject to the terms of this Agreement and in exchange for the consideration set forth in Sections 2.5 , 2.7 , 2.8 , 2.9 , 2.11 and 2.12 : (i) the Alleyton Sellers shall sell, transfer and deliver to Acquiror, and Acquiror shall purchase from the Alleyton Sellers, 100% of the outstanding limited liability company units of Alleyton (the “ Alleyton Units ”) free and clear of all liens and encumbrances; and (ii) the Colorado Sellers shall sell, transfer and deliver to Acquiror, and Acquiror shall purchase from the Colorado Sellers, 100% of the outstanding limited liability company units in Colorado (the “ Colorado Units ”), free and clear of all liens and encumbrances. As used herein, the “ Equity Interests ” shall refer to (x) prior to the Partnership Conversion and the Conversion, 100% of the outstanding shares of capital stock of Alleyton and the outstanding partnership interests of Colorado collectively, and (y) after the Conversion and the Partnership Conversion, the Alleyton Units and the Colorado Units collectively. On the Closing Date and immediately after the Acquiror’s acquisition of the Alleyton Units, subject to the terms of this Agreement, and in exchange for the consideration set forth in Section 2.6 , BSI shall sell, transfer and deliver the BSI Properties to Alleyton free and clear of all Encumbrances, other than Permitted Encumbrances.

 

4


(b) Except as set forth on Schedule 2.2(b) , notwithstanding any other provision of this Agreement, any Schedule or Exhibit hereto or any Ancillary Agreement to the contrary, and regardless of any disclosure to Acquiror, Acquiror is not assuming any debts, leases, obligations or liabilities of BSI whatsoever, whether known or unknown, actual or contingent, matured or unmatured, currently existing or arising in the future (the “ Excluded Liabilities ”), which shall remain the responsibility of BSI.

SECTION 2.3 Closing . The closing (the “ Closing ”) of the transactions contemplated hereby (such transactions, including, without limitation, the Conversion and Subsidiary Conversion, the “ Transactions ”) shall take place at the offices of Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, NY at 10:00 a.m., Eastern time, on the third Business Day following the satisfaction or, to the extent permitted by applicable Law, waiver of all conditions to the obligations of the parties set forth in Articles VII and VIII (other than such conditions as may, by their terms, only be satisfied at the Closing or on the Closing Date) , or at such other place or at such other time or on such other date as the parties mutually may agree in writing. The day on which the Closing takes place is referred to as the “ Closing Date .” “ Business Day ” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in The City of New York.

SECTION 2.4 Subsequent Actions . If, at any time after the Closing, Acquiror shall consider or be advised that any deeds, bills of sale, assignments, assurances or other documents or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in Acquiror (or Alleyton with respect to the BSI Properties), its right, title or interest in, to or under the Equity Interests or the BSI Properties, the Alleyton Sellers, Colorado Sellers and BSI (such parties collectively, the “ Sellers ”) and their respective officers and directors, if any, shall, and the officers and directors of Acquiror and Alleyton shall be authorized to, on their behalf, execute and deliver, in the name of and on behalf of the respective Sellers all such deeds, bills of sale, assignments, assurances or other documents and to take and do, in the name and on behalf of the respective Sellers, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in, to and under the Equity Interests or the BSI Properties, as the case may be, or otherwise to carry out this Agreement and the Transactions. The Equityholders and CGC are collectively referred to herein as the “ Seller Parties .”

SECTION 2.5 Closing Date Companies Purchase Price .

(a) Purchase Price. Subject to the terms and conditions set forth in this Agreement, in reliance on the representations, warranties, covenants and agreements of the parties contained herein and in consideration of the sale, conveyance, assignment, transfer and delivery of the Equity Interests, the purchase price for such Equity Interests shall be an amount equal to the result of the following (the result of clauses (i) through (vi) below being referred to herein as the “ Closing Date Companies Purchase Price ”):

(i) $169,250,000 (the “ Total Cash at Closing ”), subject to adjustment as provided herein; plus

(ii) Closing Cash; minus

(iii) the Closing Indebtedness; minus

(iv) the Transaction Expenses, to the extent not (A) paid by the Seller Parties prior to the Closing Date or (B) accrued for purposes of the Net Working Capital Adjustment; plus

 

5


(v) the Net Working Capital Adjustment, if the Closing Date Net Working Capital exceeds the Net Working Capital Target; minus

(vi) the Net Working Capital Adjustment, if the Net Working Capital Target exceeds the Closing Date Net Working Capital.

(b) Certain Defined Terms . The following terms, as used herein, have the following meanings:

(i) “ Cash ” means the cash of the Companies (on a consolidated basis), calculated in accordance with generally accepted accounting principles (“ GAAP ”) applied on a basis consistent with the preparation of the Financial Statements. “ Colorado Cash means the cash of Colorado calculated in accordance with GAAP applied on a basis consistent with the preparation of the Financial Statements.

(ii) “ Closing Cash ” means the sum of (i) the aggregate Cash and (ii) Vox Property Cash as of the Closing Date.

(iii) “ Closing Indebtedness ” means the aggregate Indebtedness of the Companies (on a consolidated basis) as of the Closing.

(iv) “ Closing Date Net Working Capital ” means the amount of Net Working Capital as of the Closing Date.

(v) “ Estimated Purchase Price ” means the estimate of the Closing Date Companies Purchase Price established pursuant to Section 2.9(a) .

(vi) “ Indebtedness ” means (A) all indebtedness for borrowed money or equivalents thereof, (B) any other indebtedness that is evidenced by a note, bond, debenture, draft or similar instrument or equivalents thereof, (C) notes payable, (D) letters of credit and any other agreements relating to the borrowing of money or extension of credit or equivalents thereof, (E) all obligations under financing or equipment leases other than those equipment leases set forth on Schedule 2.5(b)(vi) and (F) all direct and indirect guarantees and arrangements having the economic effect of a guarantee of or by a Person of any Indebtedness of any other Person.

(vii) “ Net Working Capital ” means (A) the sum of the book values of the line items set forth on Schedule 2.5(b)(vii) under the heading “Current Assets”, minus (B) the sum of the book values of the line items set forth on Schedule 2.5(b)(vii) under the heading “Current Liabilities”, in each case, calculated in accordance with GAAP and, to the extent in accordance with GAAP, the principles, procedures, assumptions and methodologies applied in the example calculation on Schedule 2.5(b) (vii)  (the “ Principles ”)”.

(viii) “ Net Working Capital Adjustment ” means an amount equal to the difference between (A) the Closing Date Net Working Capital and (B) the Net Working Capital Target.

(ix) “ Net Working Capital Target ” means the amount determined in accordance with the instructions on Schedule 2.5(b)(vii) .

(x) “ Total Purchase Price ” means the sum of (A) the Closing Date Companies Purchase Price, plus (B) Closing Indebtedness, plus (C) Transaction Expenses, plus (D) the Excess, if any, plus (E) the BSI Properties Purchase Price paid pursuant to Section 2.6 , plus (F) all installment payments paid pursuant to Section 2.7(a) , plus (G) all non-compete payments paid pursuant to Section 2.7(b) , plus (H) all earn-out payments paid pursuant to Section 2.8 , less (I) Closing Cash and less (J) the Deficiency, if any.

 

6


(xi) “ Transaction Expenses ” means all fees and expenses payable or incurred by any one or more of the Seller Parties or the Companies in connection with the preparation, negotiation, execution, delivery and performance of this Agreement or the agreements to be executed and delivered in accordance with the terms hereof (the “ Ancillary Agreements ”) and the consummation of the Transactions, including, without limitation, fees and expenses payable to all attorneys, accountants, financial advisors, consultants and other professionals and bankers’, brokers’ or finders’ fees for Persons not engaged by Acquiror.

(xii) “ Vox Property Cash ” means Cash used to pay Vox Property Development Expenses incurred for goods or services provided after the date hereof and prior to Closing. For avoidance of doubt there can be no double counting of Cash as of the Closing Date and Vox Property Cash.

(xiii) “ Vox Property Development ” means the Companies’ and BSI’s ongoing development of a sand and gravel pit on the Vox Property.

(xiv) “ Vox Property Development Expenses ” means expenses incurred by the Companies and BSI in connection with the Vox Property Development.

(xv) “ Vox Property Payables ” means accounts payable outstanding on the Closing Date for Vox Property Development Expenses that were incurred for goods or services provided after the date hereof and prior to Closing.

SECTION 2.6 BSI Properties Purchase Price . Subject to the terms and conditions set forth in this Agreement, in reliance on the representations, warranties, covenants and agreements of BSI contained herein and in consideration of the sale, conveyance, assignment, transfer and delivery of the BSI Properties to Alleyton pursuant to Section 2.2(a) hereto, on the Closing Date Acquiror shall pay $10,000,000 to BSI on behalf of Alleyton.

SECTION 2.7 Installment Payments; Non-Compete Payments .

(a) In addition to the other consideration set forth herein, subject to the terms and conditions set forth in this Agreement, including Section 6.3(e) hereof, in reliance on the representations, warranties, covenants and agreements of the parties contained herein and in consideration of the sale, conveyance, assignment, transfer and delivery of the Alleyton Units, the Acquiror shall pay to each of the Alleyton Sellers set forth on Schedule 2.7 hereto (the “ Major Sellers ”) its respective percentage as set forth on Schedule 2.7 hereto (each such Major Seller’s percentage set forth on Schedule 2.7 hereto being defined as its “ Installment Share ”) of an aggregate amount of $20,750,000, payable in installments of each such Major Seller’s Installment Share of $2,964,285.72, payable on each of the first seven anniversaries of the Closing Date. Each such installment payment shall be made in immediately available funds payable by wire transfer to the applicable Designated Account. The parties agree that such payment includes imputed interest at the Federal mid-term rate in accordance with Section 1274 of the Code and that such portion of each installment payment will be treated as interest for U.S. federal income tax purposes.

(b) In addition to the other consideration set forth herein, subject to the terms and conditions set forth in this Agreement, in reliance on the representations, warranties, covenants and agreements of the parties contained herein including Section 5.5 , the Acquiror shall pay to each of the Major Sellers its Installment Share of a non-compete payment in an aggregate amount of $5,000,000, payable in installments of each such Major Seller’s Installment Share of $714,285.72, payable on each of the first seven anniversaries of the Closing Date. Each such non-compete payment shall be made in immediately available funds payable by wire transfer to the applicable Designated Account.

 

7


SECTION 2.8 Earn-out . In addition to the other consideration set forth herein, subject to the terms and conditions set forth in this Agreement, in reliance on the representations, warranties, covenants and agreements of the parties contained herein, including Section 5.5 , and in consideration of the sale, conveyance, assignment, transfer and delivery of the Alleyton Units, each Alleyton Seller will be entitled to receive a percentage of the earn-out payment as more particularly described on Exhibit D hereto equal to its respective percentage ownership in the Alleyton Units as set forth on Schedule 2.8 hereto (each such Alleyton Seller’s percentage of the Alleyton Units being defined as its “ Pro Rata Share ”). The parties agree that such payment includes imputed interest at the Federal mid-term rate in accordance with Section 1274 of the Code and that such portion of each earn-out payment will be treated as interest for U.S. federal income tax purposes.

SECTION 2.9 The Estimated Purchase Price .

(a) Not later than five Business Days prior to the Closing, the Seller Representative shall, for purposes of calculating the Estimated Purchase Price, deliver to Acquiror a schedule, in substantially the form set forth on Schedule 2.9(a) (the “ Estimated Purchase Price Calculation Statement ”) prepared in accordance with the Principles, certifying in reasonable detail the Sellers’ good faith, reasonable estimate of the amount of the following: (i) Closing Cash, (ii) Closing Indebtedness, (iii) Transaction Expenses, and (iv) based on the foregoing, the Sellers’ good faith, reasonable estimate of the amount of the Closing Date Companies Purchase Price. The Net Working Capital Adjustment will be assumed to be zero dollars ($0.00) for purposes of the Estimated Purchase Price.

(b) The Estimated Purchase Price Calculation Statement, and the amounts referenced in subsections 2.9(a)(i)-(iv)  above, shall be subject to Acquiror’s written approval.

(c) At the Closing, Acquiror shall:

(i) pay to the Colorado Sellers in the aggregate the sum of (A) $5,000,000 plus (B) an amount equal to Colorado Cash, and to the Alleyton Sellers in the aggregate an amount equal to the Estimated Purchase Price less the sum of (A) $5,000,000 plus (B) an amount equal to Colorado Cash, (such Alleyton Sellers and Colorado Sellers, collectively, the “ Equity Interest Sellers ”) with each of such Equity Interest Sellers receiving a percentage of the amount payable with respect to the Alleyton Units or Colorado Units, as the case may be, equal to its respective percentage set forth on Schedule 2.9(c)(i) hereto (each such Equity Interest Seller’s percentage set forth on Schedule 2.9(c)(i) hereto being defined as its “ Closing Share ”) by wire transfer of immediately available funds to the account of each Equity Interest Seller designated in writing by the Seller Representative (the “ Designated Accounts ”);

(ii) pay the Closing Indebtedness that is required to be paid at Closing, to the respective creditors; and

(iii) deposit or pay the Transaction Expenses pursuant to and in accordance with Section 2.10 .

SECTION 2.10 Expenses . Not later than one Business Day prior to the delivery of the Estimated Purchase Price Calculation Statement to Acquiror in accordance with Section 2.9 , the Seller Representative will provide to Acquiror on behalf of all of the Seller Parties an itemized schedule (the “ Schedule of Expenses ”) containing (i) a true and complete list of all unpaid Transaction Expenses for which bills have been received, (ii) a good faith estimate of all such additional Transaction Expenses that

 

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have been incurred but not paid or will have been incurred but not paid as of the Closing Date, but are not reflected in clause (i) hereof and (iii) a good faith estimate of all additional Transaction Expenses that are expected to be incurred after the Closing Date, together with a certificate of the Seller Representative certifying the accuracy and completeness of the Schedule of Expenses. The Schedule of Expenses shall include all fees and expenses that are Transaction Expenses payable and not yet paid by any of the Seller Parties or the Companies to Dawn Dittmar for services rendered or costs incurred on or prior to the Closing Date. As of the Closing Date, the Acquiror shall pay or cause to be paid each Transaction Expense set forth in the Schedule of Expenses for which there has been a deduction to the Closing Date Companies Purchase Price pursuant to Section 2.5(a) , other than the fees and expenses set forth therein that are estimated for services to be performed after the Closing Date or for services for which the recipient has not yet been billed, which fees and expenses shall be paid promptly as they are later incurred and billed up to the amount estimated therefor; provided , that any such fees and expenses in excess of the amount set forth in the Schedule of Expenses shall be the sole responsibility of the Seller Parties via accruals in the Net Working Capital Adjustment, a reduction in the Closing Date Companies Purchase Price or indemnity payments.

SECTION 2.11 Summit Equity Purchase . Immediately following the Acquiror’s purchase of the Equity Interests and the purchase of the BSI Properties, the Major Sellers will purchase their respective Installment Shares of the amount set forth on Schedule 2.11 in Class B-1 Interests of Summit Materials Holdings L.P. (the “ Co-investment ”). Acquiror may, as has been mutually agreed with the Major Sellers, deduct the amount of the Co-investment required to be paid by the Major Sellers to the Acquiror from the Estimated Purchase Price wired to the Major Sellers pursuant to Section 2.9 , which shall then be deemed payment in full of such amounts by the Major Sellers. Each Major Seller is an “accredited investor” within the meaning of Rule 501(a) under the Securities Act of 1933, as amended.

SECTION 2.12 Closing Date Companies Purchase Price True-Up .

(a) A written statement (the “ Final Purchase Price Calculation Statement ”) certifying in reasonable detail Acquiror’s good faith, reasonable calculations of the amount of the (i) Closing Cash, (ii) Closing Indebtedness, (iii) Closing Date Net Working Capital and the Net Working Capital Adjustment calculated by reference thereto, (iv) Transaction Expenses, and (v) based on the foregoing, a calculation of the Closing Date Companies Purchase Price, shall be delivered by Acquiror to the Seller Representative as soon as practicable following the Closing Date, but not later than 60 calendar days after the last day of the month in which the Closing occurs, together with all data, schedules and work papers used by Acquiror in preparing the Final Purchase Price Calculation Statement. The Seller Parties shall give Acquiror reasonable access to any data not under the control of Acquiror or its subsidiaries necessary to prepare the Final Purchase Price Calculation Statement. The parties agree that the Final Purchase Price Calculation Statement will be prepared in accordance with the Principles.

(b) The Final Purchase Price Calculation Statement shall become final and binding on the parties on the 30th calendar day following receipt thereof by the Seller Representative unless the Seller Representative delivers written notice of its disagreement (a “ Notice of Disagreement ”) to Acquiror prior to such date. Any Notice of Disagreement shall specify the items set forth on the Final Purchase Price Calculation Statement with which the Seller Representative disagrees and the Seller Representative’s calculation of each such amount. If a Notice of Disagreement is sent by the Seller Representative, then the Closing Cash, Closing Indebtedness, Closing Date Net Working Capital, Net Working Capital Adjustment, Transaction Expenses and Closing Date Companies Purchase Price (as recalculated in accordance with clause (i) or (ii) below) shall become final and binding on the parties on the earlier of (i) the date the parties hereto resolve in writing any differences they have with respect to any matter specified in the Notice of Disagreement and (ii) the date any disputed amounts are finally determined in accordance with the balance of this paragraph. During the 30-day period following the delivery of a

 

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Notice of Disagreement, the Seller Representative and Acquiror shall seek in good faith to resolve in writing any differences which they may have with respect to any amount specified in the Notice of Disagreement or identified by the Seller Representative during said 30-day period. If, at the end of such 30-day period, the Seller Representative and Acquiror have not reached agreement on such amounts, the amounts which remain in dispute shall be recalculated by an independent accounting firm (the “ Independent Accountant ”). The Independent Accountant shall be Ernst & Young or, if such firm is unable or unwilling to act, such other independent public accounting firm as shall be agreed in writing by the Seller Representative and Acquiror. The Independent Accountant shall make a ratable allocation of its charges between the parties for such work as a part of its determination based on the inverse proportion by which the amount in dispute was determined in favor of one party over the other. Any amounts so recalculated shall be final and binding on the parties.

(c) If the Closing Date Companies Purchase Price, as calculated pursuant to this Section 2.12 , exceeds (such excess amount, the “ Excess ”) the Estimated Purchase Price, then Acquiror shall cause to be paid to the Equity Interest Sellers their respective Closing Share of an amount equal to the Excess to their respective Designated Accounts. The respective Closing Shares of the Colorado Sellers and the Alleyton Sellers shall reflect the relative proportion of (i) the change in Colorado Cash as set forth in the Estimated Purchase Price Calculation Statement as compared to that set forth in the Final Purchase Price Calculation Statement and (ii) the change in Closing Cash other than Colorado Cash as set forth in the Estimated Purchase Price Calculation Statement as compared to that set forth in the Final Purchase Price Calculation Statement.

(d) If the Closing Date Companies Purchase Price, as calculated pursuant to this Section 2.12 , is equal to the Estimated Purchase Price, then no further payment shall be due to either Acquiror or the Equity Interest Sellers under this Section 2.12 .

(e) If the Closing Date Companies Purchase Price, as calculated pursuant to this Section 2.12 , is less than the Estimated Purchase Price (the amount of such difference, the “ Deficiency ”), then an amount equal to such Deficiency shall be paid by the Equity Interest Sellers to Acquiror.

(f) Any payments made pursuant to this Section 2.12 shall be made within three Business Days after the final determination thereof by wire transfer of immediately available funds to an account designated in writing by the Acquiror or the Designated Accounts, as the case may be.

SECTION 2.13 Allocation of Purchase Price . The Sellers and Acquiror understand and agree that the transactions contemplated hereunder shall be treated by the Sellers as fully-taxable sales of membership interests in Alleyton, membership interests in Colorado and assets of BSI and as asset purchases by Acquiror and Alleyton for U.S. federal income tax purposes. For all tax purposes, the Sellers shall allocate the consideration payable pursuant to this Agreement (including any amounts payable after the Closing Date and any adjustments thereto) plus the amount of liabilities treated as assumed for U.S. federal income tax purposes among the assets of the Companies and the BSI Properties in accordance with Schedule 2.13 . The Sellers and Acquiror shall report, act, and file tax returns (including, but not limited to, IRS Form 8594) in all respects and for all purposes consistent with the allocation set forth on Schedule 2.13 and shall not take any position (whether in audits, tax returns, or otherwise) that is inconsistent with the foregoing, except as otherwise required by Law. All indemnification payments made pursuant to this Agreement by one party to another party (other than interest payments) shall be treated by such parties as an adjustment to the consideration payable pursuant to this Agreement, to the extent permitted by Law.

SECTION 2.14 Different Consideration . Each Equity Interest Seller understands, acknowledges and agrees that the form(s), amount(s) and timing of payment(s) of consideration to be paid

 

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to such Equity Interest Seller pursuant to this Agreement in reliance on the representations, warranties, covenants and agreements of the Equity Interest Seller contained herein and in consideration of the sale, conveyance, assignment, transfer and delivery of the Equity Interests and compliance with the terms hereof, including non-compete covenants, may differ from the form(s), amount(s) and timing of payment(s) of consideration to be paid to any other Equity Interest Seller pursuant to this Agreement and that all of such differences are known and agreed and each Equity Interest Seller shall have no claims against any party with respect thereto or defenses for enforcement hereof.

ARTICLE III.

REPRESENTATIONS AND WARRANTIES OF THE SELLER PARTIES

Except as set forth in the disclosure schedules attached hereto with numbered sections corresponding to the relevant section in this Article III, which schedules may be supplemented or amended in accordance with Section 5.16 , (collectively, the “ Disclosure Schedules ”), each of the Seller Parties, and BSI and TBGSI (with respect to Sections 3.1 , 3.2 , 3.3 , 3.4 , 3.7 , 3.10 , 3.13 , 3.14 , 3.16 and 3.18 ) jointly and severally, represents and warrants to Acquiror, as of the date hereof and as of the Closing Date, as follows:

SECTION 3.1 Authority, Power and Capacity . Each Company, BSI, CGC, TBGSI and each Equityholder has all requisite power and authority or, if an individual, legal capacity to execute and deliver this Agreement and each of the Ancillary Agreements to which it is a party, to perform such Person’s respective obligations hereunder and thereunder and to consummate the Transactions, and no other equityholder or other approval is required by the Companies, BSI, CGC, TBGSI or any Equityholder in order to consummate the Transactions. This Agreement and all other agreements to be executed in connection herewith by the Companies, BSI, CGC, TBGSI and each of the Equityholders have been duly authorized, executed and delivered by the Companies, BSI, CGC, TBGSI and each such Equityholder, constitutes the valid and binding agreement of the Companies, BSI, CGC, TBGSI and each such Equityholder and is enforceable against the Companies, BSI, CGC, TBGSI and each such Equityholder in accordance with its terms.

SECTION 3.2 Interests Ownership . The Equityholders, CGC and TBGSI are the sole record and beneficial owners of the Equity Interests and equity interests in BSI (the “ BSI Interests ”) in accordance with Schedule 3.2 hereto, constituting 100% of such interests in each of the Companies and BSI respectively. Schedule 3.2 sets forth the equity capitalization of each of such companies and there are no other equity or similar interests outstanding. All Equity Interests have been duly authorized and validly issued, are fully paid and non-assessable and were issued by each Company in compliance with all applicable federal and state securities Laws. The Equity Interests are held, and will be held on the Closing Date, by the respective Equity Interest Sellers free and clear of all Encumbrances (other than Encumbrances created by this Agreement) and are not subject to any restriction that restricts their transfer pursuant to this Agreement or that would restrict their transferability after the Closing. The respective Equity Interest Sellers have the right, authority and power to sell, assign and transfer the Equity Interests to Acquiror. There is no outstanding or authorized option, subscription, warrant, call, right, commitment or other agreement of any character obligating either of the Companies or any of their respective affiliates to sell or transfer any Equity Interests or other ownership interests or any other securities convertible into or exercisable for or evidencing the right to subscribe for any Equity Interests or other ownership interests of either of the Companies other than rights arising under the Buy-Sell Agreements that will be validly terminated prior to Closing. The Equity Interest Sellers are not party to any contract, other than this Agreement, that could require them to sell, transfer or otherwise dispose of any of the Equity Interests. No third party, including any former owner of Equity Interests or BSI Interests or other interests in either of the Companies or BSI, has the basis for any claims against either of the Companies, BSI, CGC, TBGSI, any of the Equityholders or Acquiror with respect to the Transactions.

 

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SECTION 3.3 Conflicting Instruments; Consents .

(a) The execution and delivery by each of the Companies, BSI, CGC, TBGSI and each Equityholder of this Agreement does not, and the consummation of the Transactions will not, violate any provision of the respective articles of incorporation, certificate of incorporation, bylaws, limited liability company operating agreement, certificate of formation, partnership agreement or other charter or constituent documents (or the equivalents thereof) (collectively, the “ Organizational Documents ”) of the Companies, BSI, CGC, TBGSI or any Equityholder, or except as set forth on Schedule 3.3(a) , result in the creation of any Encumbrances upon the Equity Interests, the BSI Properties or any assets of the Companies under, conflict with or result in a breach of, require a consent, create an event of default (or event that, with the giving of notice or lapse of time or both, would constitute an event of default) under, or give any third party the right to terminate, accelerate or modify any obligation or benefit under, any contract, agreement, mortgage, license, Permit, lease, indenture, instrument, order, arbitration award, judgment or decree to which the Companies, BSI, CGC, TBGSI or any Equityholder is a party or by which either of the Companies, BSI, CGC, TBGSI or any Equityholder, the BSI Properties or any assets of the Companies are bound or affected.

(b) Except as set forth on Schedule 3.3(b) , the execution and delivery by the Companies, BSI, CGC, TBGSI and each of the Equityholders of this Agreement does not, and the consummation of the Transactions will not, result in a violation of, or require any authorization, approval, consent or other action by, or registration, declaration or filing with or notice to, any United States or non-United States federal, national, supranational, state, provincial, local or similar government, governmental, regulatory or administrative authority, branch, agency, department, commission, board, bureau, instrumentality or any court, tribunal, or arbitral or judicial body (including any grand jury) (“ Governmental Authority ”) pursuant to any statute, law, ordinance, regulation, rule, code, executive order or Order of any Governmental Authority (“ Law ”) applicable to either of the Companies, BSI, CGC, TBGSI, any Equityholder, the BSI Properties or any assets of the Companies except for any filings required to be made under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”). Except as set forth on Schedule 3.3(b) , there is no pending or, to the knowledge of the Seller Parties, threatened action, arbitration, suit, proceeding, claim, inquiry or investigation (“ Proceeding ”) against either Company, BSI, CGC, TBGSI or any of the Equityholders before or by any court or Governmental Authority, to restrain or prevent the consummation of the Transactions or that might affect the right of Acquiror to own and vote the Equity Interests or own, control and operate the BSI Properties or the right of the Companies to own and control the respective assets of the Companies or to operate the business of the Companies consistent with past practice.

SECTION 3.4 Organization and Authority .

(a) Alleyton is a corporation, duly organized, validly existing and in good standing under the Laws of the State of Texas. Colorado is a limited partnership, duly organized, validly existing and in good standing under the Laws of the State of Texas. Each Company is duly qualified to do business as a foreign corporation or partnership as the case may be and is in good standing in every jurisdiction in which the nature of the business conducted by it or the character or location of the properties owned or leased by it makes such qualification necessary, except where the failure to be so qualified would not be reasonably likely to have a material adverse effect on either Company. The Companies and BSI (with respect to the BSI Properties) each have all requisite corporate or other applicable power and authority to own or lease and operate its properties and assets and to carry on its business as now conducted.

(b) The Organizational Documents and all amendments thereto that the Companies previously furnished to Acquiror for review are accurate and complete. The minute books, membership or partnership interest transfer or stock ledger and similar records of the Companies furnished to Acquiror

 

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for review are accurate and complete. Such minute books contain the minutes of substantially all meetings of the members, partners or shareholders and the boards of managers or board of directors, as applicable, and all committees thereof, of the Companies. Such membership, partnership or stock interest transfer and similar records reflect all issuances and registrations of transfer of all membership interests, partnership interests and stock interests and the certificates, if applicable, representing all canceled membership interests, partnership interests or stock interests have been appropriately reflected.

SECTION 3.5 Subsidiaries and Affiliates . Other than Alcomat and Allied Concrete Pumping LLC, there is no entity with respect to which: (a) either of the Companies beneficially owns, directly or indirectly, any outstanding stock or other ownership interests; (b) either of the Companies may be deemed to be in control because of factors or relationships other than the quantity of stock or other interests owned; (c) either of the Companies may be liable under any circumstances for the payment of additional amounts with respect to their interest, whether in the form of assessments, capital calls, installment payments, general partner liability or otherwise; or (d) either of the Companies’ investment is accounted for by the equity method. Neither of the Companies is a member of any partnership or joint venture agreement or arrangement. The references to each Company in this Article III shall include each of such Company’s respective subsidiaries and affiliates and accordingly such representations are made with respect to such entities to the same extent as they are made with respect to each Company, except to the extent the context indicates otherwise.

SECTION 3.6 Financial Statements .

(a) The Seller Parties have furnished Acquiror with copies of the following (collectively, including the notes thereto, the “ Financial Statements ”): (i) the reviewed financial statements for the fiscal years ended December 31, 2010, 2011 and 2012 and the internal management financial statements for the nine month period ended September 30, 2013 of Alleyton, including without limitation a balance sheet dated as of September 30, 2013 (the “ Alleyton Balance Sheet ” and such date, the “ Balance Sheet Date ”); (ii) the audited financial statements for the fiscal years ended December 31, 2008, 2009, 2010 and 2011 and for the year to date period ended December 21, 2012, the reviewed financial statements for the period started December 22, 2012 and ended December 31, 2012 and the internal management financial statements for the nine month period ended September 30, 2013 of Alcomat, including without limitation a balance sheet dated as of the Balance Sheet Date (the “ Alcomat Balance Sheet ”); and (iii) the internal management financial statements for the fiscal years ended December 31, 2008, 2009, 2010, 2011 and 2012 and for the nine month period ended September 30, 2013 of Colorado, including without limitation a balance sheet dated as of the Balance Sheet Date (the “ Colorado Balance Sheet ” and collectively with the Alleyton Balance Sheet and Alcomat Balance Sheet, the “ Balance Sheets ”).

(b) The Financial Statements: (i) are correct and complete in all material respects and have been prepared in accordance with the books and records of the respective Company; (ii) have been prepared in accordance with GAAP consistently applied throughout the periods covered; (iii) reflect and provide adequate reserves in respect of all known liabilities of the respective Company, including all known contingent liabilities, as of their respective dates; (iv) present fairly the financial condition of the respective Company at the dates thereof and the results of its operations for the periods covered thereby; and (v) do not omit any information necessary to make such Financial Statements not misleading.

(c) Each Company keeps books, records and accounts that, in reasonable detail, accurately and fairly reflect: (i) the material transactions and dispositions of assets of the respective Company; (ii) the value of inventory calculated in accordance with GAAP; and (iii) all other material transactions of the respective Company.

 

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(d) Neither Company has any indebtedness or liability, whether accrued, fixed or contingent, known or unknown, other than (i) liabilities reflected in the Balance Sheets, (ii) liabilities incurred in the ordinary course of business of the respective Company (consistent with past practice in terms of both frequency and amount) subsequent to the Balance Sheet Date, (iii) liabilities and obligations under this Agreement and the Ancillary Agreements, including liabilities for Transaction Expenses and (iv) liabilities, fixed or contingent, that are expressly disclosed on Schedule 3.6(d) .

SECTION 3.7 Properties and Assets of the Companies; BSI Properties .

(a) Ownership . Except for the BSI Properties, which are owned by BSI, the Companies own or otherwise have the right to use all of the properties and assets, real and personal, tangible and intangible, owned, used or held for use in the operation of the Business. The Companies have and after consummation of the Transactions will continue to have good and marketable title to their respective assets, free and clear of all charges, claims, limitations, conditions, equitable interests, mortgages, liens, options, pledges, security interests, imperfections of title, easements, rights-of-way, encroachments, conditional sales contracts, rights of first refusal, covenants, adverse claims or restrictions of any kind, including any restrictions on transfer or other assignment, as security or otherwise, of or relating to use, quiet enjoyment, voting, transfer, receipt of income or exercise of any other attribute of ownership (“ Encumbrances ”), other than Encumbrances that (i) are described on Schedule 3.7(a) ; (ii) are for current taxes and assessments not yet past due; (iii) are mechanics’, workmen’s, repairmen’s, warehousemen’s and carriers’ liens arising in the ordinary course of business consistent with past practice of the Business incurred in the ordinary course of business with respect to charges not yet due and payable; or (iv) arise under zoning and other land use regulations, or other similar imperfections of title that do not, individually or in the aggregate, materially interfere with the present use, enjoyment or occupancy of any asset subject thereto (“ Permitted Encumbrances ”). The assets of the Companies (whether owned, licensed or leased, as disclosed in this Agreement) and the BSI Properties constitute all of the assets, properties and rights used or held for use in the conduct and operation of the Business and are adequate in all material respects to conduct the Business as currently conducted.

(b) Real Property . Set forth on Schedule 3.7(b) is (i) a complete list, including tax parcel identification numbers and a complete legal description of the BSI Properties and all real property that is owned in fee simple by the Companies (such real property, together with all buildings, improvements, structures, facilities, fixtures, systems and equipment located thereon, as well as easements, rights, licenses and appurtenances related thereto and all rights, title, privileges and appurtenances pertaining thereto, including, without limitation, all of the right, title and interest, of each of the Companies and BSI (with respect to the BSI Properties), as applicable, if any, in and to the following (the “ Related Rights ”): (A) any unpaid award for any taking by condemnation or any damages to the premises by reason of a change of grade of any street or highway, (B) all minerals, oil, gas and other hydrocarbon substances on and under such real property except as set forth on Schedule 3.7(b) and (C) all mineral rights, development rights, air rights and water rights relating to such real property except as set forth on Schedule 3.7(b) , shall be collectively referred to as the “ Owned Property ”), and (ii) a complete list, including the street address, identity of lessor, lessee and current occupant (if different from lessee), date of lease and term expiry date of each parcel of each lease of real property under which either of the Companies is a lessee, lessor, sublessee or sublessor, licensee or licensor, together with all Related Rights to the extent demised pursuant to the related lease (the “ Leased Property ”). The Owned Property, the Leased Property and the real property subject to the Property Leases sometimes collectively are referred to as the “ Real Property .” Except as described on Schedule 3.7(b) , there has not been any sublease or assignment entered into by BSI or any of the Companies and none of such parties have subleased, licensed or otherwise granted any Person the right to use or occupy any Real Property or portion thereof. None of the Seller Parties or their Affiliates intends to, is in discussions or negotiations with any Person (other than Acquiror) regarding, or has any commitment, agreement or arrangement to, transfer, lease,

 

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sublease or assign any Real Property to any other Person other than the transfers described in Section 3.7(o) . Except for the Real Property described on Schedule 3.7(b), none of the Seller Parties owns or has any leasehold, ownership or other interest in any real property that contains significant, marketable aggregates reserves, whether or not such aggregates reserves have been developed.

(c) Title . Except as set forth on Schedule 3.7(c) , the Companies have good and marketable title in fee simple to all Owned Property, except for the BSI Properties, and the Companies have valid leasehold rights in and to the Leased Property and to all plants, buildings, fixtures and improvements thereon, free and clear of all Encumbrances other than Permitted Encumbrances. Except as set forth on Schedule 3.7(c) , BSI has good and marketable title in fee simple to the BSI Properties and to all plants, buildings, fixtures and improvements thereon (except for any such plants, buildings, fixtures and improvements that are owned or leased by Alleyton), free and clear of all Encumbrances other than Permitted Encumbrances. Except as set forth on Schedule 3.7(c) , upon consummation of the Transactions, Alleyton will acquire good and marketable title to the BSI Properties, free and clear of all Encumbrances other than Permitted Encumbrances.

(d) Maintenance . All of the buildings, material fixtures and other improvements situated on the Real Property and all other material items of property are in good condition and in a reasonable state of repair, and maintenance of such items has not been deferred beyond a reasonable time period.

(e) Assessments . There is no special proceeding pending or, to the knowledge of the Seller Parties, threatened, in which any taxing authority having jurisdiction over any of the Real Property is seeking to increase the assessed value thereof.

(f) Binding Commitments . Except as set forth on Schedule 3.7(f) , no binding commitments have been made by the Companies or BSI or any affiliate of the Companies or BSI to any Governmental Authority, utility company or any other organization, group or individual relating to the Real Property or any part thereof which imposes upon or could impose upon the Companies or BSI or any affiliate of the Companies or BSI an obligation to make any contribution or dedication of money or land or to construct, install or maintain any improvements of a public or private nature on or off such Real Property.

(g) Condemnation . There is no condemnation or eminent domain proceeding pending which relates to any Real Property and, to the knowledge of the Seller Parties, there is no such proceeding threatened by any relevant Governmental Authority.

(h) Title Documents . True and complete copies of (i) all leases, subleases and licenses to which either of the Companies is a party respecting any Real Property and all guaranties related thereto and any other instruments granting such leasehold interests, rights, options or other interests (including all amendments, modifications and supplements thereto) (the “ Property Leases ”) and (ii) all deeds, title insurance policies or commitments, surveys, mortgages, certificates of occupancy, building permits and inspection certificates, and other documents granting either of the Companies or BSI (with respect to the BSI Properties), title to any Real Property, together with all amendments, modifications and supplements thereto (collectively, the “ Title Documents ”) have been delivered to Acquiror or will be delivered to Acquiror promptly following the date hereof. In furtherance and not in limitation of the foregoing, true and complete copies of the title insurance commitments and surveys set forth on Schedule 3.7(h) relating to the BSI Properties have been delivered to Acquiror (collectively, the “ BSI Title Documents ”). All Property Leases shall remain valid and binding in accordance with their terms immediately following the Closing.

(i) No Breach or Event of Default — Property Leases . With respect to the Property Leases, no breach or event of default on the part of any party to the Property Leases and no event that, with the

 

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giving of notice or lapse of time or both would constitute such breach or event of default, has occurred and is continuing. All the Property Leases are in full force and effect and are valid and enforceable against the parties thereto in accordance with their terms. All rental and other payments due under each of the Property Leases have been duly paid in accordance with the terms of such Property Leases.

(j) No Breach or Event of Default — Title Documents . With respect to the Title Documents, no breach or event of default on the part of the Companies or BSI (with respect to the BSI Properties) or any affiliate of the Companies or BSI, no breach or event of default on the part of any other party thereto and no event that, with the giving of notice or lapse of time or both, would constitute a breach or event of default under any term, covenant or condition of such Title Documents, has occurred and is continuing.

(k) Access . Each parcel of Owned Property has a right to access to and from such parcel.

(l) Utilities . To the knowledge of the Companies and BSI (with respect to the BSI Properties), all utilities required for the operation of each parcel of Owned Property either enter such Owned Property through adjoining streets or pass through adjoining land, and do so in accordance with valid public easements or irrevocable private easements, and all of such utilities are installed and operating, except for such matters related to the Vox Property, which are being installed.

(m) Easements . To the knowledge of the Companies and BSI (with respect to the BSI Properties), all easements, cross easements, licenses, air rights, and rights-of-way or other similar property interests, whether express or implied (collectively, “ Easements ”), if any, necessary for the full utilization of the Real Property for its correct and intended purposes have been obtained and are in full force and effect without default thereunder, except for such matters related to the Vox Property, which is being developed for mining. All of the Real Property has direct rights of access to public ways. All roads necessary for the use of the Real Property for its current purposes have been completed and are available for private use. To their knowledge, none of the Companies, BSI or any affiliate of the Companies or BSI is in violation of any Easement affecting the Real Property.

(n) Flood Hazard Zone . Except as disclosed on surveys provided by the Companies and BSI to Acquiror, to the knowledge of the Companies and BSI (with respect to the BSI Properties): (i) the Real Property is not situated in a flood hazard area as defined by the Federal Insurance Administration and (ii) no portion of the Real Property is located on or adjacent to navigable waters and no portion of the Real Property consists of filled-in land.

(o) Purchase Options . Other than with respect to (i) Alleyton’s transfer of the Brune Lease to BSI in accordance with Section 5.18 and (ii) BSI’s transfer of that certain 28.0 acre tract of the Monahan Property to Dr. Harold J. Cramer as described in Item 1 on Schedule 5.2(b)(iii) , none of the Real Property nor any part thereof are subject to any purchase options, right of first refusal or other contractual rights regarding purchase, acquisition, sale, assignment or disposal in favor of third parties.

(p) Use . To the knowledge of the Companies and BSI (with respect to the BSI Properties), the use of each parcel of Real Property for the purposes for which it is presently being used is permitted as of right under all applicable zoning laws.

(q) Personal Property . To the knowledge of the Companies, all material items of personal property of the Companies are in good condition and in a reasonable state of repair, reasonable wear and tear excepted, and material maintenance on such items has not been deferred beyond a reasonable time period.

 

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(r) Intellectual Property . Each Company has the right and authority to use all of its goodwill, customer lists, names, logos, trademarks, trade names, patents, service marks, copyrights, copyright applications as well as any processes, inventions and trade secrets in connection with the conduct of its business in the manner presently conducted and such use, to the Companies’ knowledge, does not conflict with, infringe upon or violate any third party’s intellectual property rights.

(s) Inventories . The inventories of the Companies are good and merchantable, and the quantities of inventories are reasonable and consistent with the normal operating requirements of each Company and its past practices.

(t) Owens Property . A true and complete copy of the Unimproved Property Contract between Alleyton and Kenneth Owens (the “ Owens Purchase Agreement ”) pursuant to which Alleyton will purchase a parcel of real property from Kenneth Owens (such parcel, the “ Owens Property ”) has been delivered to Acquiror. A true and complete copy of (i) the title insurance commitment and (ii) the survey for the Owens Property has been delivered to Acquiror.

SECTION 3.8 Personnel .

(a) The Companies have previously provided to Acquiror a true and complete list of:

(i) the name, base salary, accrued vacation, leave status and title or job description of each director and officer, and each other person who, is an employee of either of the Companies (each a “ Company Employee ”); and

(ii) the name of each person, if any, holding tax or other powers of attorney from either of the Companies and a summary of the terms thereof.

(b) Except as set forth on Schedule 3.8(b) , since the Balance Sheet Date, there has been no material change in the rate of total compensation for services rendered, including without limitation bonuses and deferred compensation, for any Company Employee that was made without previous consultation with Acquiror, and the bonuses and deferred compensation established for the fiscal year ending December 31, 2013 were consistent with the past practice of the Companies for similar employees in similar situations.

(c) All employees of the Business, including those persons working at the Monahan Plant Property and the Vox Property, are employed by the Companies. BSI does not employ any employees of the Business, including those persons working at the Monahan Plant Property and the Vox Property. The Companies do not employ any individuals who provide services to BSI.

SECTION 3.9 Labor Matters .

(a) The Companies are not a party to nor have they been, in the preceding three years, a party to any contract or collective bargaining agreement with any labor organization. No organization or representation question is pending respecting the employees of the Companies, and no such question has been raised within the preceding three years.

(b) All reasonably anticipated obligations of the Companies, whether arising by operation of law, contract, past custom or otherwise, for unemployment compensation benefits, pension benefits, salaries, wages, bonuses, sick leave, vacation and other forms of compensation payable to the officers, directors and other employees and independent contractors of the Companies, have been paid or adequate accruals therefor have been made in the Balance Sheets.

 

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(c) There is no controversy pending between either Company or any of their respective current or former employees. There is no claim, grievance, arbitration, negotiation, suit, action or charge of or by any employee of the Companies and no complaint is pending against the Companies before the National Labor Relations Board or any state or local agency, and, to the knowledge of the Seller Parties, there is no basis therefor. The Companies have complied, in respect of their current and former employees, in all material respects with all applicable Law.

(d) The Companies have furnished Acquiror with copies of all currently outstanding claims, complaints, reports or other documents in the respective Company’s files concerning the Companies or their employees made by or against them pursuant to workers’ compensation Laws, Title VII of the Civil Rights Act of 1964, the Occupational Safety and Health Act of 1970, the National Labor Relations Act of 1935 and any other federal or state Laws relating to employment of labor.

SECTION 3.10 Environmental Claims .

(a) Except as set forth on Schedule 3.10(a) , none of the Companies, BSI (with respect to the BSI Properties) or, to the knowledge of the Company and BSI, any previous owner, tenant, occupant, operator or user of any Real Property or any other Person, has engaged in or permitted any operation or activity at or upon, or any use or occupancy of, any Real Property, or any portion thereof, for the purpose of or in any way involving the handling, manufacture, treatment, storage, use, generation, Release, discharge, refining, dumping or disposal of any Hazardous Materials (whether legal or illegal, accidental or intentional) on, under, in or about the Real Property; or transported any Hazardous Materials to, from or across any Real Property, except in material compliance with all Environmental Requirements. Except as set forth on Schedule 3.10(a) , there are no Hazardous Materials presently constructed, deposited, stored or otherwise located on, under, in or about any Real Property, nor have any Hazardous Materials migrated or, to the knowledge of the Seller Parties, threatened to migrate from the Real Property onto, about or beneath any other properties, nor have any Hazardous Materials migrated or, to the knowledge of the Seller Parties, threatened to migrate from other properties onto, about or beneath the Real Property, where such construction, deposit, storage, migration or threatened migration is not in material compliance with all Environmental Requirements. No Hazardous Materials generated by the Companies or BSI (with respect to the BSI Properties) or located under, in or about the Real Property in the past have been transported to any waste disposal facility or other site, except in material compliance with all Environmental Requirements.

(b) Any existing or prior uses and activities by the Companies and BSI (with respect to the BSI Properties) at the Real Property and the operations of the Companies and BSI (with respect to the BSI Properties) comply and have at all times complied with all Environmental Requirements in all material respects, and no activity on or condition of the Real Property has constituted or constitutes a nuisance, trespass or other tortious condition with respect to any third party.

(c) None of the Companies or BSI or, to the knowledge of the Companies and BSI, any other owner, tenant, occupant or user of the Real Property (i) has received any notice, Claim or other communication concerning any alleged violation of Environmental Requirements, any alleged or potential liability for Environmental Damages, or any Release of Hazardous Materials in connection with the Real Property, the Companies, BSI (with respect to the BSI Properties) or any real property or facility to which the Hazardous Materials generated by the Companies or BSI (with respect to the BSI Properties) have been sent or (ii) is required now or in the foreseeable future, pursuant to any proposed or existing Law, to take any remedial action related to any such Real Property or make any capital improvements in order to place any such property or the improvements located thereon in compliance with such Law.

 

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(d) For the purposes of this Agreement:

(i) “ Claim ” means any writ, Order, demand, lawsuit, claim, complaint, proceeding, citation, directive, summons, notice letter, request for information or investigation undertaken or issued under any Environmental Requirement.

(ii) “ Environmental Damages ” means all Claims, Losses, judgments, damages (including damages for personal injury, or injury to property), penalties, fines, liabilities (including strict liability), Encumbrances, costs and expenses of investigation and defense of any Claim, whether or not such Claim is ultimately defeated, and of any settlement or judgment, of whatever kind or nature, contingent or otherwise, matured or unmatured, foreseeable or unforeseeable (including without limitation reasonable attorneys’ fees and disbursements and consultants’ fees), whether or not disclosed in this Agreement, on the Schedules hereto or otherwise known by Acquiror, the Companies, BSI (with respect to the BSI Properties) or any Seller Parties, any of which are incurred at any time as a result of: (A) the existence prior to the Closing Date of Hazardous Material upon, about, or beneath the Real Property or Former Real Property or migrating or threatening to migrate to or from the Real Property or Former Real Property; (B) the existence of a violation of Environmental Requirements or any liability under any Environmental Requirement relating to the Company, BSI (with respect to the BSI Properties), the Real Property, the Former Real Property, or any real property or facility to which Hazardous Materials generated by the Company or BSI (with respect to the BSI Properties) have been sent, regardless of whether the existence of such Hazardous Materials, liability or violation of Environmental Requirements arose prior to the ownership or operation of the Real Property or the Former Real Property by the Companies or BSI (with respect to the BSI Properties); (C) injury to persons arising out of exposure to asbestos or respirable crystalline silica; or (D) the acts, omissions or status of the Companies or BSI (with respect to the BSI Properties) at the time.

(iii) “ Environmental Requirements ” means all statutes, regulations, rules, policy, guidance, ordinances, codes, common law, Permits, Orders, approvals, plans, authorizations, concessions, franchises and similar items of all Governmental Authorities and all judicial and administrative and regulatory writs and Orders relating to: (A) occupational health or safety; (B) the protection of human health or the environment; (C) the treatment, storage, disposal, handling, Release or Remediation of Hazardous Materials; or (D) exposure of Persons to Hazardous Materials.

(iv) “ Former Real Property ” means any real property or facility formerly owned, leased or operated by the Companies.

(v) “ Hazardous Materials ” means any substance: (A) the presence of which requires investigation or Remediation under any Environmental Requirement; (B) that is defined as a “solid waste,” “hazardous waste,” “hazardous substance,” “hazardous material,” “pollutant” or “contaminant” under any Environmental Requirement; (C) that is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and is regulated by any Governmental Authority; (D) the presence of which causes or threatens to cause a nuisance, trespass or other tortious condition; or (E) that contains gasoline, diesel fuel, fuel oil, petroleum hydrocarbons, PCBs, asbestos, or urea formaldehyde foam insulation.

(vi) “ Release ” shall have the meaning ascribed to that term at 42 U.S.C. § 96011(22).

(vii) “ Remediation ” means (A) any remedial action, remedy, response or removal action as those terms are defined in 42 U.S.C. § 9601; and (B) any reasonably necessary corrective action as that term has been construed pursuant to 42 U.S.C. § 6924.

 

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SECTION 3.11 Non-ERISA Plans .

(a) Set forth on Schedule 3.11(a) is a complete list of each current employment contract and consulting agreement entered into by either of the Companies and each deferred compensation, bonus, incentive compensation, restricted stock, stock option, employee stock purchase, savings, severance or termination pay agreement or plan or any other employee benefit plan, agreement, arrangement or commitment, whether formal or informal, maintained, entered into or contributed to, or which is required to be maintained, entered into or contributed to, by the Companies for the benefit of any current or former director, officer or employee of the Companies which is not an ERISA Plan (the “ Non-ERISA Plans ”).

(b) Except as could not result in any liability to Acquiror or any affiliate of Acquiror, each Non-ERISA Plan currently complies and has complied in the past, both as to form and operation, with its terms and with applicable Law, and benefits under the Non-ERISA Plans are as represented in such plan documents. The following information is set forth on Schedule 3.11(b) with respect to each Non-ERISA Plan: (i) the cost to the Companies associated with such Non-ERISA Plan for each of the past three fiscal years and the plan year in which the Closing Date occurs; (ii) the amount of any liability of the Companies for payments or contributions past due with respect to such Non-ERISA Plan as of the last day of its most recent plan year and as of the end of any subsequent month ending prior to the Closing Date, and the date any such amounts were paid; (iii) any contribution to such Non-ERISA Plan in a form other than cash; and (iv) whether such Non-ERISA Plan has been terminated. Except as set forth on Schedule 3.11(b) , the Companies have no obligation or liability with respect to any Non-ERISA Plan, including without limitation under any collective bargaining agreement to which either Company is a party or by which it is bound. The Companies have made adequate accruals on the Balance Sheets for contributions that have not been made because they are not yet due under the terms of any Non-ERISA Plan or related agreement.

(c) The Companies are not in default under any Non-ERISA Plan listed on Schedule 3.11(b) ; no benefit under any Non-ERISA Plan has been increased subsequent to the date as of which documents have been provided to Acquiror; and the Companies have no plan, arrangement or commitment, whether legally binding or not, to create any additional ERISA Plan or Non-ERISA Plan that would affect any current or former employee of the Companies. There is no action, suit or claim, other than routine claims for benefits, pending or threatened with respect to any Non-ERISA Plan or the fiduciaries thereof, or against the assets of any Non-ERISA Plan or the Companies.

(d) The actuarial present value of the vested and nonvested benefit obligations under each Non-ERISA Plan (determined in a manner consistent with Section 3.11(b)(i) ) did not, as of such Non-ERISA Plan’s last valuation date, exceed the then current fair market value of the assets held to fund such Non-ERISA Plan.

(e) Each ERISA Plan and Non-ERISA Plan that is a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code subject to Section 409A of the Code has been operated in compliance with the applicable requirements of Section 409A of the Code as in effect from time-to-time.

(f) No agreement, commitment or obligation exists to increase any benefits under any Non-ERISA Plan.

SECTION 3.12 ERISA Plans .

(a) Set forth on Schedule 3.12(a) is a complete list of each employee pension benefit plan (the “ Pension Plans ”) as defined in Section 3(2) of the Employee Retirement Income Security Act of

 

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1974 (“ ERISA ”) and each employee welfare benefit plan (the “ Welfare Plans ” and, together with the Pension Plans, collectively referred to as the “ ERISA Plans ”) as defined in Section 3(1) of ERISA established, maintained or contributed to by the Companies or with respect to which the Companies have any liability (contingent or direct). Each ERISA Plan listed on Schedule 3.12(a) is correctly categorized as either a Pension Plan or a Welfare Plan.

(b) The Companies have delivered to Acquiror true and correct copies of the following:

(i) each ERISA Plan listed on Schedule 3.12(a) and all amendments thereto;

(ii) each trust agreement, annuity contract or insurance policy (or any other funding instrument) pertaining to any of the ERISA Plans, including all amendments to such documents;

(iii) the most recent determination or opinion letter, if any, issued by the Internal Revenue Service (the “ IRS ”) with respect to each of the Pension Plans; and

(iv) the two most recent Annual Reports (IRS Forms 5500 series), including Schedules A and B, if applicable, required to be filed with respect to each ERISA Plan.

(c) The Companies do not have and have not had any liability with respect to any defined benefit plan as defined in Section 3(35) of ERISA or any multiemployer plan as defined in Section 3(37) of ERISA.

(d) There is no action, suit or claim pending (other than routine claims for benefits) or that reasonably could be expected to be asserted against any ERISA Plan or the assets of any ERISA Plan. No civil or criminal action brought pursuant to the provisions of Title I, Subtitle B, Part 5 of ERISA is pending or threatened against any fiduciary of any ERISA Plan. None of the ERISA Plans or any fiduciary thereof has been the direct or indirect subject of an audit investigation or examination by any governmental or quasi-governmental agency.

(e) All of the ERISA Plans currently comply, and have complied in the past, both as to form and operation, with the terms of such ERISA Plans and with the applicable provisions of ERISA, the Code and other applicable federal Laws. All necessary approvals from any Governmental Authority for the ERISA Plans have been obtained and a favorable determination or opinion letter as to the qualification under Section 401(a) of the Code of each of the Pension Plans and of each amendment thereto has been made by the IRS and a recognition of exemption from federal income taxation under Section 501(a) of the Code of each of the funded Welfare Plans, if any, has been made by the IRS. Nothing has occurred since the date of each such determination or opinion letter that would adversely affect such qualification or exemption.

(f) No agreement, commitment, or obligation exists to increase any benefits under any ERISA Plan or to adopt any new ERISA Plan. The transactions contemplated this Agreement will not restrict the right of the Companies to amend or terminate any ERISA Plan.

(g) No ERISA Plan or Non-ERISA Plan provides for post-employment health, life insurance or other welfare benefit coverage, other than as may be required under “COBRA” pursuant to Part VI of Title I of ERISA.

(h) Except as set forth on Schedule 3.12(h) , no contract, agreement, plan or other arrangement, whether or not a Non-ERISA Plan or an ERISA Plan (other than this Agreement), exists pursuant to which the execution of this Agreement would trigger an obligation by the Companies to pay any amount or provide any property to any employee, officer or director of the Companies or to accelerate the vesting of any benefit.

 

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SECTION 3.13 Compliance with Laws; Permits . None of the Companies or BSI (with respect to the BSI Properties) is, or has been within the past five years, in violation of any provision of any Law applicable to the Companies or the BSI Properties or the Companies’ business, properties or assets, including, without limitation, those relating to antitrust or other anticompetitive practices and to employment practices (such as discrimination, health and safety). The Companies and, except as set forth on Schedule 3.13 , BSI (with respect to the BSI Properties) have (i) all franchises, licenses, permits, certificates and other authorizations and approvals from Governmental Authorities (each, a “ Permit ”) required with respect to the assets or conduct of the business of the Companies and the operation of the Real Property, including the BSI Properties, all of which Permits are set forth on Schedule 3.13 and (ii) satisfied all material bonding requirements pertaining to its operations under applicable Law. The Companies will continue to have the use and benefit of all Permits following consummation of the Transactions. The BSI Properties may be transferred in accordance with applicable Law and assigned to Alleyton without violation thereof or loss of benefits thereunder and without consent of or notice to any third party, including any Governmental Authority, except as set forth on Schedule 3.13 . Neither the Companies nor BSI (with respect to the BSI Properties) is in violation of, nor is there a basis for the revocation or withdrawal of, any Permit. The Companies and BSI (with respect to the BSI Properties) have performed all obligations expressly set forth in writing in each Permit that by their terms are to be performed on or before the Closing Date. No present or, to the knowledge of the Seller Parties, pending federal, state or local zoning or use regulation, restriction or compliance requirement materially and adversely affect the Companies, the assets of the Companies or the BSI Properties. The present conduct of the business of the Companies and BSI (with respect to the BSI Properties) is not dependent upon any “non-conforming use” exception or based upon any zoning variance.

SECTION 3.14 Litigation . Except as set forth on Schedule 3.14 , there is no Proceeding or Order pending or, to the knowledge of the Seller Parties or BSI, threatened, against or affecting the Companies, BSI (with respect to the BSI Properties), the BSI Properties or the assets or business prospects of the Companies, or relating to or involving the Transactions at law or in equity, or before or by any arbitrator or any Governmental Authority, including but not limited to (i) any Order enjoining the conduct or practice of the Companies business (or similarly enjoining the Companies employees) or (ii) Proceeding relating to exposure to or injury from silica (“ Silicosis Claims ”) or asbestos (“ Asbestos Claims ”), and none of the Companies or the Seller Parties knows of any basis for the foregoing. Neither the Companies nor BSI (with respect to the BSI Properties) has received any opinion or memorandum or legal advice or notice from legal counsel to the effect that it is exposed, from a legal standpoint, to any liability or disadvantage that may be material to its assets, properties, business or business prospects. There has not been within the last ten (10) years any Proceeding against or affecting the Companies or BSI (with respect to the BSI Properties) involving Silicosis Claims or Asbestos Claims. Neither the Companies nor BSI (with respect to the BSI Properties) is in default with respect to any Order known to or served upon it. Except as set forth on Schedule 3.14 , there is no pending Proceeding brought by the Companies against others.

SECTION 3.15 Material Contracts .

(a) Except as set forth on Schedule 3.15(a) , neither of the Companies is a party to any written or oral:

(i) out of the ordinary course contract or agreement that is material to the Companies, including, without limitation, fixed cost, fixed price or requirements or supply contracts;

 

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(ii) consulting agreement or contract for the employment of any officer, employee or other person on a full-time, part-time or consulting basis;

(iii) agreement, mortgage, indenture, loan or credit agreement, security agreement, guaranty or indemnity or other agreement or instrument relating to the borrowing or lending of money or extension of credit or providing for the mortgaging or pledging of, or otherwise placing a lien or security interest (including Encumbrance) on, any assets or properties of the Companies to secure any Indebtedness;

(iv) option, warrant or other contract for the purchase of any debt or equity security of any corporation, or for the issuance of any debt or equity security, or the conversion of any obligation, instrument or security into debt or equity securities, of the Companies;

(v) settlement agreement of any administrative or judicial proceedings within the past five years;

(vi) intellectual property (including trademark) licensing agreement;

(vii) contract or agreement limiting or restricting the ability of the Companies to engage in any line of business or to compete with any Person or entity; or

(viii) any option, right of first refusal, right of first offer or similar contract or agreement.

(b) Except as set forth on Schedule 3.15(b) , the Companies are not in breach of or in default under, in any material respect, any of the contracts, obligations or commitments set forth on Schedule 3.15(a) (collectively, the “ Material Contracts ”), and no event has occurred that, with the giving of notice or lapse of time or both, would constitute such a breach or default. Except as set forth on Schedule 3.15(b) , the execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the Transactions will not (i) violate, or conflict with, or result in a breach of any provision of or constitute a default (or an event which, with the giving of notice, the passage of time or otherwise would constitute a default) under, or entitle any party (with the giving of notice, the passage of time or otherwise) to terminate, accelerate or call a default under, or result in the creation of any Encumbrance upon any of the properties or assets of the Companies under any of the terms or conditions of any Material Contract or (ii) require the consent of any party (other than the Companies) to any Material Contract. The Companies have furnished Acquiror with a true and complete copy of all Material Contracts, and with accurate descriptions of all oral Material Contracts as set forth on Schedule 3.15(a) .

SECTION 3.16 Conduct of Business . Since the Balance Sheet Date, the Companies and BSI (with respect to the BSI Properties) have used reasonable efforts to preserve the business organization of the Companies and BSI (with respect to the BSI Properties), to keep available to the Companies the services of all current officers and employees and to preserve the goodwill of the suppliers, customers, employees and others having business relations with the Companies and BSI (with respect to the BSI Properties). Except as set forth on Schedule 3.16 , since the Balance Sheet Date, (i) the Companies have conducted their business in the ordinary course, have maintained their assets and properties in at least as good order and condition as existed on the Balance Sheet Date (other than wear and tear as may be accounted for by reasonable use) and as is reasonably necessary to continue to conduct their businesses, (ii) BSI has maintained the BSI Properties in at least as good order and condition as existed on the Balance Sheet Date (other than wear and tear as may be accounted for by reasonable use) and as is reasonably necessary to continue to conduct its business, and (iii) each of the Companies and BSI (with respect to the BSI Properties), as applicable, has not, except as disclosed on Schedule 3.16 :

(a) incurred any material obligation or liability (absolute, accrued, contingent or other) or any Encumbrance, except in the ordinary course of business consistent with past practice or in connection with the performance of this Agreement;

 

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(b) discharged or satisfied any Encumbrance, or paid or satisfied any obligation or liability (absolute, accrued, contingent or other), other than liabilities reflected on the Balance Sheets or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice;

(c) increased or established any reserve for taxes or other liabilities on its books or otherwise provided therefor;

(d) mortgaged, pledged or subjected to any Encumbrance any of the assets or properties of the Companies or the BSI Properties;

(e) sold, leased, licensed, assigned or transferred any asset, property or business or canceled any debt or claim or waived any right, except for sales of inventory in the ordinary course of business consistent with past practice;

(f) granted, offered or committed to any increase in the compensation (including bonuses and deferred compensation) payable to any officer, director, consultant, employee or agent of the Companies;

(g) made any loan to any shareholder or former shareholder of the Companies or any relative or affiliate of any shareholder or former shareholder of the Companies or redeemed or purchased any of their capital stock, or agreed to take any such action;

(h) transferred any asset or paid any commission, salary or bonus to any shareholder or former shareholder of the Companies or any relative or affiliate of any shareholder or former shareholder of the Companies, other than the payment of wages or salaries to employees of the Companies in the ordinary course of business consistent with past practice, or paid any rent, commission or fee to any shareholder or former shareholder of the Companies or any relative or affiliate of any shareholder or former shareholder of the Companies;

(i) entered into or agreed to enter into any transaction with or for the benefit of any shareholder or former shareholder of the Companies or any relative or affiliate of any shareholder or former shareholder of the Companies;

(j) issued, sold or transferred, or agreed to issue, sell or transfer, any stock, bond, debenture or other security of the Companies;

(k) experienced material damage, destruction or loss; or

(l) experienced any Material Adverse Change.

SECTION 3.17 Tax Matters .

(a) The Companies in a timely manner have filed all material tax returns and other reports required of them under all federal, state, local and foreign tax Laws to which they are subject and have paid all taxes required to be paid by them, whether or not shown on any tax return. All such returns and reports are true, correct and complete in all material respects and accurately set forth all items to the extent required to be reflected or included in such returns by applicable federal, state, local or foreign tax

 

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Laws, regulations or rules. The Companies have paid in full or set up an adequate reserve in respect of all taxes for the periods covered by such returns, as well as all other taxes, penalties, interest, fines, deficiencies, assessments and governmental charges that have become due or payable, including without limitation all taxes that they are obligated to withhold from amounts paid or payable to or benefits conferred upon employees, creditors and third parties. The Companies do not have any tax liability for which an adequate tax reserve has not been established on the Balance Sheets, whether or not disputed, including any interest and penalty in connection therewith, for all periods ending on or prior to the Balance Sheet Date.

(b) Except as set forth on Schedule 3.17(b) , no examination or audit of any tax return of the Companies is in progress. All deficiencies proposed as a result of any tax examination or audit of the Companies have been paid or finally settled and no issue has been raised in any such examination or audit that, by application of similar principles, reasonably can be expected to result in the assertion of a deficiency for any other year not so examined or audited. The results of any settlement and the necessary adjustments resulting therefrom properly are reflected in the Balance Sheets or described on Schedule 3.17(b) . There are no grounds for any further tax liability with respect to the years that have not been examined or audited. There is no outstanding agreement or waiver made by or on behalf of the Companies for the extension of time for any applicable statute of limitations, and neither the Companies has requested any extension of time in which to file any tax return.

(c) There are no tax liens outstanding against any of the assets of the Companies or Alcomat or the BSI Properties, other than for taxes not yet due and payable.

(d) The Companies have not executed any closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof, or any similar provision of state or local law.

(e) Neither Company is a party to any tax sharing agreement or similar arrangement.

(f) The Companies have not agreed, and are not required to make any adjustments pursuant to Section 481(a) of the Code or any similar provision of state or local Law by reason of a change in accounting method initiated by either of them or any other relevant party, and the Companies do not have any knowledge that the IRS has proposed any such adjustment or change in accounting method, and there is no application pending with any taxing authority requesting permission for any changes in accounting methods that relate to the business or assets of the Companies.

(g) The Companies have not made any payments, are not obligated to make any payments, and are not a party to any agreement that under any circumstances could obligate any of them to make payments, in each case that would not be deductible under Section 280G of the Code.

(h) At all times since its inception, Alleyton has, and prior to the Conversion, will have been properly treated as an S corporation within the meaning Section 1361 of the Code and any corresponding provisions of state or local law. At all times after the Conversion, Alleyton will have been properly treated as a partnership for U.S. federal income tax purposes. Alcomat was, at all times prior to its acquisition by Alleyton, properly treated as an S corporation within the meaning of Section 1361 of the Code and any corresponding provisions of state or local law. Alcomat was, at all times since its acquisition by Alleyton and prior to the Subsidiary Conversion will have been, properly treated as a “qualified Subchapter S subsidiary” within the meaning of Section 1361 of the Code and any corresponding provisions of state or local law. Alcomat, at all times after the Subsidiary Conversion, will have been properly treated as an entity disregarded from its owner for U.S. federal, state and local tax purposes. Colorado has, at all times since its inception, properly been treated as a partnership for U.S. federal, state and local income tax purposes, including for all periods after the Partnership Conversion.

 

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At all times since its inception, Allied Concrete Pumping LLC (“ Allied Concrete ”), a Texas limited liability company, has properly been treated as an entity disregarded from its owner for U.S. federal, state and local tax purposes.

(i) As used in this Agreement, the term “ tax return ” means any report, statement, form, return or other document or information relating to taxes. As used in this Agreement, the terms “ tax ” or “ taxes ” mean all federal, state, local and foreign income or gross receipts tax, alternative or add-on minimum tax, sales and use tax, customs duty and any other tax, charge, fee, levy or other assessment including without limitation property, transfer, occupation, service, license, payroll, franchise, excise, withholding, ad valorem, severance, stamp, premium, windfall profit, employment, rent or other tax, governmental fee or like assessment or charge of any kind whatsoever, together with any interest, fine or penalty thereon, addition to tax, additional amount, deficiency, assessment or governmental charge imposed by any federal, state, local or foreign taxing authority.

SECTION 3.18 Insurance . Set forth on Schedule 3.18 is a complete list and description of all policies of insurance, together with the premiums currently payable thereon, covering (i) damage to goods being manufactured, shipped, held or otherwise processed by the Companies, (ii) providing for fire, property, casualty, personal or product liability, workers’ compensation and other forms of insurance coverage for the Companies, or (iii) providing for fire, property, casualty and other forms of insurance coverage for the Real Property. All such policies will be outstanding and in full force and effect at the Closing Date, and the consummation of the Transactions will not cause a cancellation or reduction in the coverage of such policies. There was no material inaccuracy in any application for any such insurance coverage. Except as set forth on Schedule 3.18 , there is no claim, action, suit or proceeding arising out of or based upon any of such policies of insurance, and, to the knowledge of the Seller Parties, no such claim, action, suit or proceeding is threatened. There is no notice of any pending or, to the knowledge of the Seller Parties, threatened termination or premium increase with respect to any of such policies, and the Companies and BSI (with respect to the BSI Properties) is in compliance with all material conditions contained therein.

SECTION 3.19 Corporate Name . The corporate names listed on Schedule 3.19 (collectively, the “ Names ”) constitute all of the corporate names presently used by the Companies. The Companies have the full legal right to use the Names in each of the jurisdictions and locations where such Names are used. There is no actual or, to the knowledge of the Seller Parties, threatened claim by any third party with respect to the use of the Names or of any actual or proposed use of the Names or any variations thereof by any third party in conflict with the use thereof by the Companies.

SECTION 3.20 Transactions with Related Parties . Except as set forth on Schedule 3.20 , neither of the Companies has incurred any obligation or liability to, or, is or has been a party to, any material contract, agreement or transaction with, or become a creditor of, any shareholder or former shareholder of either of the Companies or any relative or affiliate of any shareholder or former shareholder of the Companies.

SECTION 3.21 Bank Accounts . Schedule 3.21 contains an accurate and complete list of (a) the names and addresses of each bank in which either Company has an account, (b) the account numbers of such accounts and (c) the authorized signatories and amounts for such accounts.

SECTION 3.22 Product Liability . Except as set forth in Item 1 of Schedule 3.14 , there are no pending or, to the knowledge of the Seller Parties, threatened product liability, warranty, material backcharge, material additional work, field repair or other claims (or, to the knowledge of the Seller Parties, basis therefor) by any third party (whether based on contract or tort and whether relating to personal injury, including death, property damage or economic loss) arising from (a) services rendered by

 

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the Companies during periods through and including the Closing Date, (b) the sale, distribution, erection or installation of products by the Companies on or prior to the Closing Date, or the manufacture of products by the Companies whether delivered to a customer before or after the Closing Date or (c) the operation of the Companies’ business or the ownership of the assets of the Company or the Barton Properties during the period through and including the Closing Date.

SECTION 3.23 Customers . Set forth on Schedule 3.23 is a complete list of the 25 largest (in terms of dollar volume) customers of each of Alleyton and Alcomat for the eight month period ended August 31, 2013. Except as set forth on Schedule 3.23 , none of such customers has terminated or indicated an intention or plan to terminate all or a material part of the services performed for or orders historically placed by such customers. Except as set forth on Schedule 3.23 , the Companies have satisfactory relationships with their major customers, suppliers and contractors, and the Companies have no reason to believe there will be any adverse change in any of such relationships, whether by reason of the consummation of the Transactions or for any other reason. Except as set forth on Schedule 3.23 , to the knowledge of the Seller Parties, none of the employees primarily responsible for servicing customers listed thereon has indicated an intention or plan to terminate his or her employment with the Companies.

SECTION 3.24 Brokerage . Except as set forth on Schedule 3.24 , neither Company nor BSI, nor any employee or agent of any of them, nor any Equityholder dealt with any finder or broker in connection with the Transactions who may be entitled to a fee in connection therewith. Any fees payable to any finder or broker shall be the sole responsibility of the Seller Parties and in no circumstance shall Acquiror have any liability therefor.

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES OF ACQUIROR

Acquiror represents and warrants to the Sellers, as of the date hereof and as of the Closing Date as follows:

SECTION 4.1 Organization . Acquiror is duly organized and is validly existing as a limited liability company in good standing under the Laws of the State of Delaware.

SECTION 4.2 Authority . Acquiror has the requisite power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which it is a party, to perform its obligations hereunder and thereunder and to consummate the Transactions. This Agreement and all other agreements to be executed in connection herewith by Acquiror have been duly executed and delivered by Acquiror, have been effectively authorized by all necessary action by Acquiror, and constitute legal, valid and binding obligations of Acquiror, enforceable in accordance with their respective terms.

SECTION 4.3 Governmental Authorization . The execution and delivery by Acquiror of this Agreement does not, and the consummation of the Transactions will not, require the Acquiror to obtain any consent, approval, order or authorization by, any Governmental Authority pursuant to any Law applicable to the Acquiror except as required under the HSR Act.

SECTION 4.4 Non-Contravention . The execution and delivery by Acquiror of this Agreement does not, and the consummation of the Transactions will not, (a) violate any provision of the Organizational Documents of Acquiror, (b) result in a violation of any Law applicable to Acquiror or (c) conflict with or result in a breach of, require a consent, create an event of default (or event that, with the giving of notice or lapse of time or both, would constitute an event of default) under, or give any third party the right to terminate, accelerate or modify any obligation or benefit under, any contract, agreement, mortgage, license, Permit, lease, indenture, instrument, order, arbitration award, judgment or decree to

 

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which Acquiror is a party or by which it is bound or affected, except, with respect to Sections 4.4(b) and (c)  hereof, as would not be reasonably expected to prevent, materially delay or materially impede the performance by Acquiror of its obligations under this Agreement.

SECTION 4.5 Litigation . There is no pending or, to the knowledge of Acquiror, threatened Proceeding against Acquiror before or by any court or Governmental Authority that would be reasonably expected to prevent, materially delay or materially impede the performance by Acquiror of its obligations under this Agreement.

SECTION 4.6 Brokerage . None of Acquiror or any employee or agent of Acquiror has dealt with any finder or broker in connection with any of the Transactions or the negotiations looking toward the consummation of such transactions who may be entitled to a fee in connection therewith. Any fees payable to any finder or broker shall be the sole responsibility of Acquiror.

ARTICLE V.

COVENANTS

SECTION 5.1 Access .

(a) From the date hereof through the Closing Date, the Companies and BSI will give Acquiror and its financial advisors, legal counsel, independent accountants and other Representatives full access during normal business hours to all properties, documents, contracts, employees, books and records (including, but not limited to, loss information pertaining to workers’ compensation, general liability and automobile liability insurance) of the Companies, their respective Subsidiaries and the BSI Properties and will furnish Acquiror with copies of such documents (certified if so requested) and with such financial, operating and other data and information with respect to the Companies and the BSI Properties as Acquiror from time to time reasonably may request.

(b) From the date hereof through the Closing Date, the Companies and BSI will permit Representatives of Acquiror to be present at each facility of the Companies and the BSI Properties and to observe the conduct of the business of the Companies at any time during normal business hours.

SECTION 5.2 Conduct of the Business of the Companies .

(a) From the date hereof through the Closing Date, the Sellers and the Companies will use their respective reasonable best efforts to preserve the business of the Companies, keep available to the Companies the services of all current officers and substantially all key employees and preserve the goodwill of, and relationships with, the suppliers, customers, employees and others having business relations with the Companies and BSI. The covenants and agreements in this Agreement including, but not limited to, those covenants and agreements in this Article V to be performed by or with respect to the Companies shall include and apply equally to subsidiaries of the Companies to the same extent as they apply to the Companies themselves.

(b) From the date hereof through the Closing Date, except as consented to in writing by Acquiror, the Companies and BSI will continue the operation of the business of the Companies and BSI (with respect to the BSI Properties) in compliance with all applicable Laws and in the ordinary course consistent with past practice, and will maintain the assets, properties and rights of the Companies and the BSI Properties in at least as good order and condition as exists on the date hereof, subject to ordinary wear and tear; provided that the Companies may dividend Cash to the Equityholders provided that such Cash is not to be added to the Closing Date Companies Purchase Price in Section 2.5(a) . Without limiting the generality of the foregoing, from the date hereof through the Closing Date, the Companies

 

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and BSI, in respect of the Companies or the BSI Properties, as applicable, shall not do or propose to do, directly or indirectly, any of the following without the prior written consent of Acquiror:

(i) incur, discharge or satisfy any material obligation or liability (absolute, accrued, contingent or other) or any Encumbrances, except in the ordinary course of business consistent with past practice;

(ii) increase or establish any reserve for taxes or other liabilities on its books or otherwise provide therefor, except for taxes or other liabilities relating to the ordinary course operations of the Companies since the date of the Balance Sheets; write up or down the value of inventory or determine as collectible any notes or accounts receivable that were previously considered to be uncollectible, except (A) aggregate inventory shall be revalued at December 31, 2013 in accordance with GAAP as agreed by the parties and (B) for write-ups or write-downs in accordance with GAAP in the ordinary course of business consistent with past practice; or voluntarily make any change in any of its methods of accounting or in any of its accounting principles or practices;

(iii) except as disclosed on Schedule 5.2(b)(iii) , lease, license, sell, assign, transfer or encumber any asset, property or business, including any Owned Property or waive or permit to lapse any right or claim, except in the ordinary course of business consistent with past practice;

(iv) make any loan to any Equityholder or any relative or affiliate of any Equityholder, transfer any asset to any Equityholder or any relative or affiliate of any Equityholder other than the payment of wages or salaries to Equityholders who are also employees of the Companies in the ordinary course of business and as disclosed on Schedule 5.2(b)(iv) ; or enter into or agree to enter into any transaction with or for the benefit of any Equityholder or any relative or affiliate of any Equityholder other than the Transactions;

(v) acquire, whether by merger or otherwise, any Person or any line of business from or a substantial portion of the assets of, or any equity of, any Person or acquire any real property interests other than the Owens Property;

(vi) except for the Subsidiary Conversion, the Partnership Conversion and the Conversion, reclassify or change in any manner the outstanding shares of capital stock, limited or general partnership interest or other ownership interests of the Companies or agree to issue, sell, transfer, pledge, encumber or deliver any stock, bond, debenture or other security of the Companies;

(vii) grant any increase in the compensation payable to any officer, director, consultant, employee or agent of the Companies, except for increases in the compensation payable in the ordinary course of business consistent with past practice to employees (other than key employees) in amounts and at times consistent with past practice; enter into or amend any contract for the employment of any officer, employee or other person that is not terminable upon 30 days’ notice or less, except for accrued vacation pay for past services; enter into any contract or collective bargaining agreement with any labor union; enter into or agree to enter into any bonus, pension, profit-sharing, retirement, stock purchase, stock option, deferred compensation, incentive compensation, hospitalization, insurance or similar plan, contract or understanding providing for employee benefits; or make any payment or a contribution under any ERISA Plan or Non-ERISA Plan or incur any obligation to make any such payment or contribution that is not in accordance with the usual past practice of the Companies;

(viii) enter into any contract except in the ordinary course of business consistent with past practice, for the sale of goods or the performance of services for or by the Companies that is not terminable upon 30 days’ notice or less without penalty; enter into any contract continuing for a period of

 

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more than three months from its date that is not terminable upon 30 days’ notice or less without penalty; enter into any agreement or instrument relating to the borrowing or lending of money or extension of credit or the making of any investment or capital contribution; or guarantee or indemnify any Person or entity with respect to any obligation for borrowed money or otherwise, excluding endorsements made for collection; or make or permit to be made any amendment, modification, cancellation or termination of any material contract, agreement, lease, license, finance agreement or written evidence of indebtedness;

(ix) extend credit in excess of $100,000 to any customer (other than Allied Concrete, Sand Express/Quickcrete, Allied and Cemex) or depart from the normal and customary trade, discount and credit policies of the Companies;

(x) settle any administrative or judicial proceedings;

(xi) make or revoke any material tax election or file any amended tax return, including with respect to Alcomat, Allied Concrete and any other Subsidiaries of either of the Companies;

(xii) terminate or fail to renew any Permit relating to the business or assets of the Companies or the BSI Properties;

(xiii) amend the certificate of incorporation, the bylaws or other organizational documents of the Companies other than in connection with the Conversion, the Partnership Conversion and the Subsidiary Conversion; or

(xiv) agree, authorize or commit to do any of the foregoing.

SECTION 5.3 Third Party Consents .

(a) The Equityholders, CGC and BSI will, at their cost and expense (and not at the expense of the Companies) obtain or cause to be obtained all consents, waivers, approvals, amendments and authorizations required to satisfy the condition in Section 7.8 hereof.

(b) The Equityholders, CGC, BSI and Acquiror shall use all commercially reasonable efforts to take, or cause to be taken, all appropriate action to do, or cause to be done, all things necessary, proper or advisable under applicable Law or otherwise to (i) obtain from Governmental Authorities and any individual, corporation, partnership, limited liability company, limited liability partnership, syndicate, person, trust, association, organization or other entity (“ Person ”) all consents, approvals, authorizations, qualifications and orders as are necessary for the consummation of the Transactions ( provided , that, other than the Equityholders, CGC’s and BSI’s obligations pursuant to Section 5.3(a) , no party shall be required to (and the Companies shall not without the consent of Acquiror) incur direct costs or expenses for the foregoing consents and similar items in this clause), (ii) promptly make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Ancillary Agreements required under applicable Law and (iii) have vacated, lifted, reversed or overturned any order, decree, ruling, judgment, injunction or other action (whether temporary, preliminary or permanent) (an “ Order ”) that is then in effect and that enjoins, restrains, conditions, makes illegal or otherwise restricts or prohibits the consummation of the Transactions. In furtherance and not in limitation of the foregoing, the Equityholders, CGC, BSI and the Companies shall permit Acquiror reasonably to participate in the defense and settlement of any claim, suit or cause of action relating to this Agreement, the Ancillary Agreements or the Transactions, and such parties shall not settle or compromise any such claim, suit or cause of action without Acquiror’s written consent. Notwithstanding anything herein to the contrary, Acquiror shall not be required by this Section 5.3 to take or agree to undertake any action, including litigation or entering into any consent decree, hold separate order or other arrangement,

 

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including any of the foregoing that would (A) require the divestiture of any assets of Acquiror or any of its affiliates or any portion of the assets of the Companies or the BSI Properties or (B) limit Acquiror’s freedom of action with respect to, or its ability to consolidate and control, the Companies or their assets or business or the BSI Properties or any of Acquiror’s or its affiliates’ other assets or businesses or (C) limit Acquiror’s ability to acquire or hold, or exercise full rights of ownership with respect to, the Equity Interests.

SECTION 5.4 Notice of Default of the Seller Parties .

(a) The Sellers will promptly give notice to Acquiror of the occurrence of any event known to any of them, or the failure of any event to occur known to any of them, that results in a breach of any representation or warranty by any of them, or a failure by any of them, to comply with any covenant, condition or agreement contained herein.

(b) The Sellers will take all actions necessary to render accurate as of the Closing Date their respective representations and warranties contained herein, (ii) refrain from taking any action that would render any such representation or warranty inaccurate as of such time and (iii) perform or cause to be satisfied each covenant or condition to be performed or satisfied by them as contemplated by this Agreement.

SECTION 5.5 Non-Compete and Non-Solicitation .

(a) In order that Acquiror may have and enjoy the full benefit of the Business and in consideration of, among other things, the consideration provided by Acquiror pursuant to this Agreement and the entry into the Ancillary Agreements, during the period from the date hereof through the seventh anniversary of the date hereof (the “ Non-Compete Period ”), no Seller Party will:

(i) directly or indirectly, engage or invest in, own, manage, operate, finance, control or participate in the ownership, management, operation, financing, or control of, be employed by, associated with, or in any manner connected with, lend any credit to, or render services or advice to or consult with, any Person, business, firm, corporation, partnership, association, joint venture or other entity or individual that engages in or conducts any business engaged in by the Companies or BSI as of the Closing Date, including the Business, anywhere within 150 miles from any of the operating facilities of the Companies or the BSI Properties; provided , however , the Seller Parties may collectively own less than 1% of the outstanding shares of any class of securities of any enterprise that conducts such business (but without otherwise participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934, as amended;

(ii) except as set forth in Schedule 5.5 , directly or indirectly, either for himself, herself, itself or any other Person or entity, hire any of the officers or directors or other persons employed by the Companies, or Acquiror or its affiliates (with respect to the Business) and their respective successors or assigns, or solicit or induce such persons to leave the employ of the Companies or Acquiror or its affiliates (with respect to the Business);

(iii) directly or indirectly, approach or seek business from any Customer (as defined below), refer business from any Customer to any enterprise or business or be paid commissions based on business sales received from any Customer by any enterprise or business. For purposes of this Section 5.5 , the term “ Customer ” means any Person, firm, corporation, partnership, association or other entity to which the Companies, Acquiror or their affiliates or any of their successors or assigns, provided goods or services during the 36-month period prior to the time at which any determination shall be made that any

 

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such Person, firm, corporation, partnership, association or other entity is a Customer. For the purposes of this Agreement, the term “ affiliate ” shall mean any entity controlling, controlled by or under common control with the named party;

(iv) disparage the Companies, Acquiror or any of their affiliates in any way which could adversely affect the goodwill, reputation or business relationships of the foregoing with the public generally, or with any of their customers, suppliers or employees; or

(v) directly or indirectly, either for himself, herself, itself or any other Person or entity, acquire, or negotiate and/or enter into a lease, royalty arrangement or similar agreement related to the development or exploitation of aggregate reserves or otherwise, relating to, the Trust Property, or render services or advice to or consult with any other Person in connection therewith.

(b) Each of the Seller Parties acknowledges that the restrictions imposed by this Agreement are fully understood by such Person, are fair and reasonable, and will not preclude such Person from becoming gainfully employed following the execution of this Agreement. Each Seller Party further acknowledges and agrees that the payments to be made to it pursuant to this Agreement are sufficient consideration for its obligations under Section 5.5(a) .

(c) If any of the provisions of this Section 5.5 shall otherwise contravene or be invalid under the Laws of any state or other jurisdiction where it is applicable but for such contravention or invalidity, such contravention or invalidity shall not invalidate all of the provisions of this Section 5.5 , but rather this Section 5.5 shall be reformed and construed, insofar as the Laws of that state or jurisdiction are concerned, as not containing the provision or provisions, but only to the extent that they are contravening or are invalid under the Laws of that state or jurisdiction, and the rights and obligations created hereby shall be reformed and construed and enforced accordingly. In the event of a breach or violation by any Seller Party of this Section 5.5 , Acquiror shall have the right to pursue all legal remedies provided for herein and, notwithstanding recovery of any such remedy, the Non-Compete Period as to such Seller Party shall be tolled until such breach or violation has been cured.

(d) Each Seller Party acknowledges that Acquiror will have no adequate remedy at law and may suffer irreparable damage if any of the Seller Parties breach or fail to perform any of their obligations in this Agreement, including, without limitation, Section 5.5 , Section 5.6 , Section 5.8 and Section 5.13(b) . Accordingly, each of the Seller Parties agrees that Acquiror shall have the right, in addition to any other rights which it may have, to specific performance and equitable injunctive relief if any of the Seller Parties shall fail or threaten to fail to perform any of their obligations hereunder. In connection therewith, each of the Seller Parties waive the claim or defense that adequate remedy at law exists.

(e) For the avoidance of doubt, the parties hereto agree that, other than as set forth in Section 5.5(a)(v) , this Section 5.5 does not restrict or prohibit the Seller Parties from owning, leasing or using real property for purposes other than in connection with a Business or related activities engaged in by the Companies prior to the Closing Date. The parties hereto also agree that this Section 5.5 does not restrict Perry Glen Shepard’s ability to engage or invest in, own, manage, operate, finance or control the factoring business that he owns as of the date of this Agreement.

SECTION 5.6 Confidentiality .

(a) Until the Closing Date, each of the parties shall, and shall cause its affiliates and officers, directors, principals, employees, advisors, auditors, agents and other representatives (collectively, “ Representatives ”) to, keep confidential, disclose only to its

 

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affiliates or Representatives and use only in connection with the Transactions all information and data obtained by them from the other party or its affiliates or Representatives relating to such other party, the Companies, the BSI Properties or the Transactions (other than information or data that is or becomes available to the public other than as a result of a breach of this Section 5.6 or that was known to such party at the time of receipt), unless disclosure of such information or data is required by applicable Law. In the event that the Transactions are not consummated, each party shall, and shall use its commercially reasonable efforts to cause its affiliates and Representatives to, promptly return to the other party or destroy all documents (including all copies thereof) containing any such information or data.

(b) For a period of seven years following the Closing Date, the Sellers shall not, and each Seller shall cause its affiliates and Representatives and its respective affiliates not to, use for its or their own benefit or divulge or convey to any third party, any Confidential Information; provided , however , that each Seller and their respective affiliates may furnish such portion (and only such portion) of the Confidential Information as such party reasonably determines it is legally obligated to disclose if: (i) it receives a request to disclose all or any part of the Confidential Information under the terms of a subpoena, civil investigative demand or Order issued by a Governmental Authority; (ii) to the extent not inconsistent with such request, it notifies Acquiror of the existence, terms and circumstances surrounding such request and consults with Acquiror on the advisability of taking steps available under applicable Law to resist or narrow such request; (iii) it exercises its commercially reasonable efforts to obtain an Order or other reliable assurance that confidential treatment will be accorded to the disclosed Confidential Information; and (iv) disclosure of such Confidential Information is required to prevent the Seller Parties or such affiliate from being held in contempt or becoming subject to any other penalty under applicable Law. For purposes of this Agreement, “ Confidential Information ” consists of this Agreement, all information and data relating to the Companies, the assets and business of the Companies and the BSI Properties (including intellectual property, customer and supplier lists, pricing information, marketing plans, market studies, client development plans, business acquisition plans and all other information or data), and the Transactions, except for data or information that is or becomes available to the public other than as a result of a breach of this Section 5.6 .

(c) Effective as of the Closing, the Sellers hereby assign to Acquiror all their respective right, title and interest in and to any confidentiality agreements entered into by them and each Person (other than Acquiror and its affiliates and Representatives) who entered into any such agreement or to whom Confidential Information was provided in connection with any transaction involving the acquisition or purchase of all or any portion of the Companies or any of the Companies’ assets or the BSI Properties Interests. From and after the Closing, the Sellers will take all actions reasonably requested by Acquiror in order to assist in enforcing the rights so assigned. The Sellers shall use their commercially reasonable efforts to cause any such Person to return to the Sellers any documents, files, data or other materials constituting Confidential Information that was provided to such Person in connection with the consideration of any such transaction.

SECTION 5.7 Public Announcements . On and after the date hereof and through the Closing Date, the parties shall consult with each other before issuing any press release or otherwise making any public statements with respect to this Agreement, the Ancillary Agreements or the Transactions, and none of the Seller Parties or TBGSI on the one hand or Acquiror on the other hand shall issue any press release or make any public statement prior to obtaining the other party’s written approval, which approval shall not be unreasonably withheld, except that no such approval shall be necessary to the extent disclosure may be required by applicable Law or any listing agreement of any party hereto or its affiliates.

 

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SECTION 5.8 Exclusivity .

(a) The Companies, TBGSI and the Sellers agree that between the date of this Agreement and the earlier of the Closing and the termination of this Agreement, the Companies, TBGSI and the Sellers shall not and shall not permit any of their respective affiliates or Representatives to:

(i) solicit, initiate, consider, encourage or accept any other proposals or offers from any Person relating to any direct or indirect acquisition or purchase of all or any portion of the Equity Interests, assets of the Companies, the BSI Properties or any other equity interests in the Companies, whether effected by sale of assets, sale or issuance of equity, merger, consolidation, equity exchange or otherwise, other than inventory to be sold in the ordinary course of business consistent with past practice; or

(ii) participate in any discussions, conversations, negotiations or other communications regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way, assist or participate in, facilitate or encourage any effort or attempt by any other Person to seek to do any of the foregoing.

(b) The Companies, TBGSI and the Sellers shall cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any Persons conducted heretofore with respect to any of the foregoing.

(c) The Companies, TBGSI and the Sellers shall notify Acquiror promptly, but in any event within 24 hours, orally and in writing if any such proposal or offer, or any inquiry or other contact with any Person with respect thereto, is made. Any such notice to Acquiror shall indicate in reasonable detail the identity of the Person making such proposal, offer, inquiry or other contact and the terms and conditions of such proposal, offer, inquiry or other contact. The Companies, TBGSI and the Sellers shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which the Companies, TBGSI or a Seller is a party or beneficiary, without the prior written consent of Acquiror.

SECTION 5.9 Financing .

(a) The Companies, TBGSI and the Seller Parties shall provide Acquiror and its affiliates and Representatives with such cooperation and assistance in connection with the arrangement of financing for the Transactions as may be requested by Acquiror, including (i) participating in meetings, presentations, due diligence sessions, drafting sessions and sessions with prospective lenders, investors and rating agencies in connection with the financing, (ii) assisting with the timely preparation of materials for bank information memoranda, prospectuses, private placement memoranda, financial statements (including pro forma financial statements), rating agency presentations or similar document(s) required in connection with such financing, (iii) furnishing Acquiror and its affiliates and their financing sources as promptly as is practicable (and in any event no later than 30 days prior to the Closing Date) or, in the case of quarterly or annual financial statements that have not been delivered prior to the date hereof, by a date that is not later than 45 days after the end of the relevant fiscal quarter in respect of unaudited financial statements or 90 days after the end of the relevant fiscal year in respect of audited financial statements) with financial statements, financial books and records, reports, projections and other information regarding the Companies and their businesses and operations and the BSI Properties, (iv) facilitating the pledging of collateral in connection with the financing (including obtaining and delivering any pay-off letters or other cooperation in connection with the repayment or other retirement of existing indebtedness and the release and termination of any and all related liens) on or prior to the Closing Date, (v) causing the taking of corporate actions (subject to the occurrence of the Closing) by the Companies that are

 

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reasonably necessary to permit the completion of the financing, (vi) using reasonable efforts to obtain accountants’ comfort letters, surveys, environmental reports and third party consents necessary to permit the completion of the financing, (vii) facilitating the execution and delivery (at the Closing) of guarantees, mortgages or other definitive documents relating to the financing and (viii) cooperating reasonably with Acquiror’s and affiliates financing sources’ due diligence and with their efforts to obtain guarantees and to obtain and perfect security interests in assets intended to constitute collateral securing such financing, with such cooperation occurring prior to or simultaneously with the Closing Date, but the execution of any guarantee or security arrangement not taking effect until the Closing Date.

(b) The Companies, TBGSI and the Seller Parties shall cause their legal counsel to render and provide reasonable assistance to Acquiror and Acquiror’s counsel in connection with the rendering of any legal opinions as may be reasonably necessary in connection with the financing, in each case in customary form and of customary scope for the applicable jurisdiction and a transaction such as the financing.

SECTION 5.10 Notice of Default of Acquiror .

(a) Acquiror will promptly give notice to the Seller Representative of the occurrence of any event known to Acquiror, or the failure of any event known to Acquiror to occur, that results in a breach of any representation or warranty by Acquiror or a failure by Acquiror to comply with any covenant, condition or agreement contained herein.

(b) Acquiror will (i) take all actions necessary to render accurate as of the Closing Date its representations and warranties contained herein, (ii) refrain from taking any action that would render any such representation or warranty inaccurate as of such time and (iii) perform or cause to be satisfied each covenant to be performed or satisfied by it as contemplated by this Agreement.

SECTION 5.11 Title Documents .

(a) Prior to the Closing, the Companies, TBGSI and the Seller Parties will at their cost and expense (other than the cost of premiums for additional title and leasehold insurance that Acquiror requests that they obtain at Acquiror’s cost) (i) use their good faith efforts to obtain estoppels, warranty deeds, good and marketable title, title reports, title and leasehold insurance (in form and substance satisfactory to Acquiror), correct defects and imperfections of title and remove Encumbrances, other than Permitted Encumbrances (which term does not include any amendments or supplements to the Schedules for the purposes of this Section 5.11 ), for each of the parcels of Real Property (including parcels that the Companies purport to own but may not be titled in their name as of the date hereof ), and (ii) use their good faith efforts to take such steps as otherwise may be necessary to ensure that the Representations and Warranties of the Sellers and TBGSI set forth in Section 3.7 hereof are true and correct as of the Closing Date. If the Companies and Seller Parties fail to perform their obligations under this Section 5.11 , Acquiror shall have the right, but not the obligation, in its discretion, prior to the Closing, to satisfy these obligations and charge Seller Parties for the cost relating thereto. Notwithstanding the foregoing, the parties agree that matters relating to title to each of the parcels of Real Property set forth on Schedule 3.7(c) as owned by Alcomat (collectively, the “ Alcomat Properties ”) are addressed in Section 5.11(b) , and not this Section 5.11(a) .

(b) Prior to Closing, Alleyton will, at its cost and expense, obtain, or cause Alcomat to obtain, a title insurance policy for each Alcomat Property with a value to be agreed on by Acquiror and the Alleyton Sellers (collectively, the “ Alcomat Title Insurance Policies ”). The Alleyton Sellers will provide the title commitment for each Alcomat Title Insurance Policy to Acquiror for review, and Acquiror will notify the Alleyton Sellers of any Encumbrances set forth thereon to which Acquiror objects (collectively, the “ Alcomat Title Objections ”). The Alleyton Sellers will use their good faith efforts to remove the Alcomat Title Objections from the Alcomat Title Insurance Policies prior to Closing.

 

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(c) Prior to Closing, Alleyton will, at its cost and expense, obtain a title insurance policy for the Owens Property with a value equal to the purchase price of the Owens Property set forth in the Owens Purchase Agreement (the “ Owens Title Insurance Policy ”). Prior to Closing, Acquiror will notify the Alleyton Sellers of any Encumbrances set forth on the title insurance commitment for the Owens Property to which Acquiror objects (collectively, the “ Owens Objections ”). The Alleyton Sellers will use their reasonable best efforts to remove the Owens Title Objections from the title insurance policy for the Owens Property prior to Closing. Prior to Closing, Alleyton will deliver to Acquiror a true and complete copy of the survey of the Owens Property. Acquiror will notify the Alleyton Sellers of any discrepancies in the survey of the Owens Property to which Acquiror objects. The Alleyton Sellers will use their good faith efforts to correct such discrepancies prior to Closing.

(d) Provided that they have used their good faith efforts, the Companies, TBGSI and the Seller Parties shall not have any liability to Acquiror for the termination of this Agreement related to the failure to satisfy the goals of those efforts as set forth in this Section 5.11 .

SECTION 5.12 Financial Reporting . Prior to and after the Closing, the Seller Parties shall and shall cause their affiliates and Representatives to cooperate with Acquiror in connection with, and use reasonable best efforts to provide to Acquiror any information (including annual, quarterly, monthly and other financial statements and information related to the Companies and their businesses and operations and the BSI Properties) reasonably requested by Acquiror in connection with, in compliance with any reasonable deadline imposed by Acquiror, Acquiror’s or any of its affiliate’s compliance with any Law or GAAP requirement applicable to it.

SECTION 5.13 Trust Property . From the date hereof through the Closing Date, the Major Sellers will each use their respective good faith efforts to negotiate and assist Alleyton in its efforts to enter into an agreement with RES/VLS Real Estate Limited Partnership (or its assignee) for the lease, on commercially reasonable terms, of that certain piece of real property known as the Trust Property as more fully described on Schedule 5.13(a) hereto (the “ Trust Property ”); provided, however , that neither Alleyton nor any Seller Party shall enter into any lease or acquisition agreement relating to the Trust Property without the prior written consent of Acquiror. Provided that the Seller Parties have used good faith efforts to comply with their obligations under this Section 5.13(a) : none of the Seller Parties shall have any liability to Acquiror if Alleyton does not enter into a lease for the Trust Property as contemplated by this Section 5.13(a) , and the consideration to be paid under this Agreement at or after Closing shall not be adjusted because Alleyton has not entered into such lease.

SECTION 5.14 Waiver of Buy-Sell Agreements . Each Company and Equity Seller that is a party to the Buy-Sell Agreement, dated as of January 1, 2013, among Todd Barten, Perry Glen Shepard, Frank Bantle, Sr., Steve Rhodes, Johnny Cook and Alleyton or to the Buy-Sell Agreement, dated as of January 1, 2013, among Todd Barten, Perry Glen Shepard, Steve Rhodes, Johnny Cook, Colorado and CGC (together, the “ Buy-Sell Agreements ”) hereby waives any rights exercisable by such Company or Equity Seller pursuant to the Buy-Sell Agreements in connection with the Transactions.

SECTION 5.15 Colorado County Aggregates Reserves . During the Non-Compete Period, upon Acquiror’s request from time to time, the Major Sellers will use their respective good faith efforts to assist Acquiror with any opportunities that may arise to acquire or “lease” aggregates in Colorado County, Texas (any agreements for such acquisitions or leases, the “ Colorado County Aggregates Reserves Agreements ”). In addition, if either of the Major Sellers, directly or indirectly, either for himself or any

 

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other Person, has the opportunity to negotiate and/or enter into a Colorado County Aggregates Reserves Agreement, whether or not such opportunity arose out of a request by Acquiror, the Major Sellers will notify Acquiror of such opportunity and provide it with the details thereof. The Acquiror’s rights and Major Sellers’ obligations hereunder are in addition to the rights and obligations set forth in the Noncompete provisions of Section 5.5 hereof and the provisions of Section 5.13 hereof regarding the Trust Lease.

SECTION 5.16 Schedule Amendments . The Sellers and TBGSI shall (and are hereby permitted to) supplement or amend the Disclosure Schedules so that such schedules and related representations and warranties are true and correct as soon as possible after the date hereof and in no case later than such date (the “ Cut-Off Date ”) as is necessary to allow sufficient time prior to the Termination Date for financing of the Transactions contemplated by Acquiror to be secured on the basis of the final Disclosure Schedules. No such supplements or amendments to any Disclosure Schedules shall be made, nor shall be effective even if purported to be made, on or after the Cut-Off Date. The exact date to be established for the Cut-Off Date shall be agreed by the parties hereto as soon as possible after the date hereof, subject to the mutual reasonable consent of the parties hereto based on the time reasonably required for the Sellers and TBGSI to complete the Disclosure Schedules while allowing sufficient time prior to the Termination Date to allow the Acquiror to secure the financing contemplated by Acquiror to fund the Transactions which the parties recognize requires finalized Disclosure Schedule. The Sellers and TBGSI shall have no liability under this Agreement whether or not the Closing occurs for any misrepresentations made as of the date hereof that are corrected by such supplements or amendments to such Disclosure Schedules prior to the Cut-Off Date. The parties agree that the Closing Share percentages set forth on Schedule 2.9(c)(i) may be amended prior to Closing by the Seller Representative, once the Estimated Purchase Price has been determined.

SECTION 5.17 Vox Property Development . The Companies and BSI shall continue to develop the Vox Property in the ordinary course of business consistent with past practice.

SECTION 5.18 Brune Lease and Adjacent Property .

(a) Prior to the Closing, Alleyton may transfer and assign to BSI the Brune Lease, which relates to that certain piece of real property known as the Brune Property as more fully described on Schedule 5.18(a) hereto (the “ Brune Property ”). The parties hereto agree that the use of the Brune Property and the Adjacent Property following the Closing is subject to Section 5.5 . Prior to the Closing, the Sellers will (i) permit Acquiror and its Representatives to access the Brune Property and the Adjacent Property in order to test such property, including by performing intrusive studies, for the presence of aggregates and (ii) otherwise facilitate such testing.

(b) For the purposes of this Section 5.18:

(i) The “ Adjacent Property ” means that certain piece of real property adjacent to the Brune Property as more fully described on Schedule 5.18(b) hereto.

(ii) The “ Brune Lease ” means the Sand and Gravel Lease, dated August 14, 2008, between Marjorie S. Brune, individually and as trustee of the Marjorie S. Brune Revocable Living Trust, Herman Willie Brune and Elena Brune Hollub and Alleyton.

SECTION 5.19 Appraisals . Upon Acquiror’s request, the Seller Parties and BSI will obtain, prior to Closing, at Acquiror’s expense, appraisals of the parcels of Real Property designated by Acquiror from a third-party appraiser selected by Acquiror.

 

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ARTICLE VI.

INDEMNIFICATION

SECTION 6.1 Indemnification of Acquiror . Subject to the limitations set forth in this Article VI , the Major Sellers shall, jointly and severally (collectively, the “ Seller Indemnifying Parties ”), indemnify and hold harmless the Companies, Acquiror and their affiliates (collectively, the “ Acquiror Indemnified Parties ”) in respect of any and all claims, losses, damages, liabilities, whether or not due and payable, and expenses (including, without limitation, settlement costs and any legal or other expenses for investigating or defending any actions or threatened actions, including with respect to enforcement of such indemnity) (“ Losses ”) incurred or sustained by the Acquiror Indemnified Parties in connection with each and all of the following, together with interest on cash disbursements from the date of disbursement by the Acquiror Indemnified Parties in connection therewith at the then current London Interbank Offered Rate plus 5% (“ LIBOR Rate ”):

(a) any breach of representations or warranties made by the Sellers or TBGSI in this Agreement (including any Schedules, as they may have been supplemented or amended in accordance with Section 5.16 , or Exhibits hereto), any Ancillary Agreement or in any certificate delivered by any of the Sellers (or the Seller Representative on their behalf) hereunder or thereunder, including the certificate delivered pursuant to Section 7.1 (disregarding for this purpose the words “material,” “materiality,” “material adverse effect” or similar terms in such representations and warranties);

(b) the breach of any covenant, agreement or obligation of the Sellers (or the Companies with respect to breaches occurring prior to the Closing) or TBGSI contained in this Agreement, any Ancillary Agreement or any other document contemplated hereby or thereby, including the certificate contemplated by Section 7.1 ;

(c) any and all Excluded Liabilities and Losses arising with respect to the claims listed on Schedule 6.1(c) hereto; and

(d) any and all Environmental Damages.

SECTION 6.2 Indemnification by Acquiror . Subject to the limitations set forth in this Article VI, Acquiror (the “ Acquiror Indemnifying Party ” ) shall indemnify and hold harmless the Sellers and their affiliates (collectively, the “ Seller Indemnified Parties ”) in respect of any and all Losses, whether or not due and payable incurred or sustained by the Seller Indemnified Parties in connection with each and all of the following, together with interest equal to the LIBOR Rate (as herein defined) on cash disbursements from the date of disbursement:

(a) any breach of representations or warranties made by Acquiror in this Agreement (including any Schedules or Exhibits hereto), any Ancillary Agreement or in any certificate delivered by Acquiror hereunder or thereunder, including the certificate delivered pursuant to Section 8.1 (disregarding for this purpose the words “material,” “materiality,” “material adverse effect” or similar terms in such representations and warranties); and

(b) the breach of any covenant, agreement or obligation of Acquiror contained in this Agreement, any Ancillary Agreement or any other document contemplated hereby or thereby, including the certificate contemplated by Section 8.1 .

The Acquiror Indemnifying Party and the Seller Indemnifying Parties are together the “ Indemnifying Parties .” The Seller Indemnified Parties and the Acquiror Indemnified Parties are together the “ Indemnified Parties .”

 

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SECTION 6.3 Limitations on Indemnification .

(a) Threshold . Except as provided in Section 6.3(c) , no Indemnified Party shall be permitted to enforce any claim for indemnification pursuant to this Agreement based on Sections 6.1(a) or 6.2(a) , respectively against any Indemnifying Party until in each case the aggregate amount of such respective claims exceeds $1,000,000 (the “ Threshold Amount ”). Once claims pursuant to such respective Sections 6.1(a) or 6.2(a) , as the case may be, in excess of the Threshold Amount have been asserted by such Indemnified Party against such Indemnifying Parties in the aggregate, all such claims may be pursued, but only to the extent that such claims are above the Threshold Amount.

(b) Maximum Indemnification . Except as provided in Section 6.3(c) , in no event shall any Indemnifying Party be required to make indemnification payments with respect to claims based on Sections 6.1(a) or 6.2(a) , respectively, in excess of $15,000,000.

(c) Limitation . The limitations in Sections 6.3(a) and 6.3(b) shall not apply to any Fundamental Claim, Fraud Claim or Tax Claim, as defined herein. In no event shall any Indemnifying Party be required to make indemnification payments under this Agreement in excess of the Total Purchase Price.

(d) Survival . Any claim for indemnification shall survive the Closing until expiration of the applicable statute of limitations, if any, subject to the survival periods, if any, set forth in this Section 6.3 with respect to certain of such claims; provided, however , that any claim for indemnification based upon any misrepresentation with respect to Sections 3.1 , 3.2 , 3.3 , 3.4 , 3.5 , 3.7(c) , and 3.24 (“ Fundamental Claim ”) shall survive indefinitely. In addition, any claim for indemnification shall survive the applicable termination date, if any, set forth herein if a party, prior to such termination date, shall have advised the other party in writing of facts that constitute or may give rise to an alleged claim for indemnification, specifying in reasonable detail the basis under this Agreement for such claim.

(i) Representations and Warranties . Any claim for indemnification based on Section 6.1(a) or Section 6.2(a) other than a claim referred to in Sections 6.3(d)(ii) or 6.3(d)(iii) shall be made during the period from the Closing Date until the date that is eighteen months after the Closing Date, after which such date, the Indemnified Parties are foreclosed from making such claims against the Indemnifying Parties.

(ii) Environmental Claims . Any claim based upon Section 6.1(d) , or the breach by the Seller Parties of the representations and warranties set forth in Section 3.10 (“ Environmental Claims ”) may be made at any time prior to the third anniversary of the Closing Date, after which such date, the Indemnified Parties are foreclosed from making such claims against the Indemnifying Parties

(iii) Claims Barred Only by the Applicable Statute of Limitations . Any claim based upon (A) any willful, grossly negligent, fraudulent or intentional misrepresentation of any Seller contained in this Agreement, any Ancillary Agreement or any other document, list, exhibit or instrument furnished in connection herewith or therewith, including any assessment by a taxing authority alleged to arise from a willful, false or fraudulent intent to evade taxes, or from any failure to file a return (“ Fraud Claim ”); or (B) taxes for which the Seller Indemnifying Parties are required to indemnify Acquiror or from a misrepresentation of the Seller Parties with respect to Section 3.17 (“ Tax Claim ”), may be made until the date that such claim is barred by the applicable statute of limitations, if any.

(e) Offset . The Acquiror Indemnified Parties shall have the right to set off and apply against any future payments owed to the Seller Indemnifying Parties or any of their affiliates under Section 2.7 (Installment Payments), the amount of any indemnity claims made in good faith by the Acquiror

 

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Indemnified Parties against the Seller Indemnifying Parties pursuant to the provisions of this Agreement or any Ancillary Agreement. Any such set-off and application may be made by an Acquiror Indemnified Party of the amount of any such indemnity claims and such amounts shall, without further action on the part of any party, be deemed set off and applied against any future installment payments described in Section 2.7 as determined by the Acquiror Indemnified Party. Subject to the following sentence, the Acquiror Indemnified Parties may pursue recovery against the Seller Indemnifying Parties from other than the installment payments described in Section 2.7 to the extent that there are or may be insufficient installment payments (as measured in the following sentence) to satisfy such claims. The parties agree that any judgment or settlement of any indemnity claim made by the Acquiror Indemnified Parties under this Article VI shall be satisfied first by offsetting the amount of such settlement or judgment against any future payments owed to the Seller Indemnifying Parties or any of their affiliates under Section 2.7 (Installment Payments) in accordance with Section 6.3(e) ; provided , that the amount to be so offset with respect to any settlement or judgment not due at the time such indemnity claim was made shall be valued on a present value basis using a discount rate of ten percent.

SECTION 6.4 Defense by the Indemnifying Parties . In connection with any claim giving rise to indemnity hereunder resulting from or arising out of any claim or legal proceeding by a Person (other than the Indemnified Parties) solely for monetary damages in a civil proceeding, the Indemnifying Parties at their sole cost and expense, may, upon written notice to the Indemnified Parties received by the Indemnified Parties within 10 Business Days after the Indemnifying Parties’ receipt of notice of such claim, assume the defense of any such claim or legal proceeding, provided that the Indemnifying Parties acknowledge in writing their obligation to indemnify the Indemnified Parties in respect of the entire amount of all of the claims asserted therein, subject to the indemnity limitations hereunder . If the Indemnifying Parties assume the defense of any such claim or legal proceeding, the Indemnifying Parties shall select counsel reasonably acceptable to the Indemnified Parties to conduct the defense of such claims or legal proceedings and, at their sole cost and expense (which costs and expenses shall not be applied against any indemnity limitation hereunder), shall take all steps necessary in the defense or settlement thereof. The Indemnifying Parties shall not consent to a settlement of, or the entry of any judgment arising from, any such claim or legal proceeding, without the prior written consent of the Indemnified Parties, unless such settlement is solely for monetary damages and does not involve the admission of wrongdoing by any of the Indemnified Parties, the Indemnifying Parties admit in writing their liability to hold the Indemnified Parties harmless from and against any and all Losses arising out of such settlement and concurrently with such settlement the Indemnifying Parties pay into court the full amount of all Losses to be paid by the Indemnifying Parties in connection with such settlement, subject to the indemnity limitations hereunder. The Indemnified Parties shall be entitled to participate in (but not control) the defense of any such action, with their own counsel and at their own expense and shall be entitled to any and all information or documentation relating thereto; provided , that, if upon the advice of counsel, there shall exist a potential conflict of interest between the Indemnified Parties and the Indemnifying Parties or one or more defenses may be available to the Indemnified Parties that are not available to the Indemnifying Parties, then, in each such case, the Indemnified Parties shall be entitled to participate in such defense with their own counsel at the expense of the Indemnifying Parties. If the Indemnifying Parties do not assume (or continue to diligently and competently prosecute) the defense of any such claim or litigation resulting therefrom in accordance with the terms hereof the Indemnified Parties may defend against such claim or litigation in such manner as they may deem appropriate, including, but not limited to, settling such claim or litigation, subject to the consent of the Indemnifying Parties (not to be unreasonably withheld, delayed or conditioned). The Indemnifying Parties shall be entitled to participate in the defense of any action by the Indemnified Parties, which participation shall be limited to contributing information to the defense and being advised of its status.

SECTION 6.5 Manner of Indemnification . Within 30 calendar days after receipt of notice by the Indemnifying Parties of a claim by the Indemnified Parties, subject to the last sentence of Section 6.3(e) , the Indemnifying Parties shall satisfy such claim by the payment of cash to the Indemnified Parties for the full amount of such claim unless the Indemnifying Parties deliver notice that they dispute such claim or part thereof within such period.

 

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SECTION 6.6 Intentionally Omitted .

SECTION 6.7 Exclusive Remedy . The Indemnified Parties agree that indemnification under this Article VI shall be the exclusive remedy against any Indemnifying Party for any breaches of any representations, warranties, covenants and agreements of the parties under this Agreement, the Ancillary Agreements and in any certificate delivered hereunder or thereunder, except with respect to Fraud Claims or claims seeking equitable remedies.

SECTION 6.8 Accounts Receivable .

(a) The Seller Indemnifying Parties shall reimburse the Acquiror Indemnified Parties the amount by which the sum of all accounts receivable of the Companies reflected in the calculation of Closing Date Net Working Capital (the “ Closing Date Receivables ”) exceeds the sum of the amounts collected by the Companies in satisfaction of such Closing Date Receivables by the later of the due date or 180 days after the Closing Date. Amounts paid “on account” and not designated by the payor to be paid in satisfaction of specific invoices or clearly identifiable to specific invoices shall be presumed to have been paid in satisfaction of the payor’s oldest obligation to the Companies and shall be so applied on the books of the Companies.

(b) Upon payment to the Acquiror Indemnified Parties by the Seller Indemnifying Parties for any uncollected Closing Date Receivables pursuant to the terms hereof, Acquiror or its affiliates, as the case may be, shall assign to the Seller Indemnifying Parties all of Acquiror’s right, title and interest in and to such Closing Date Receivables.

SECTION 6.9 Tax Matters .

(a) Tax Returns . The Seller Parties shall prepare, or cause to be prepared, and shall timely file, or cause to be timely filed, all tax returns of the Companies, Alcomat, Allied Concrete and any of their Subsidiaries for all periods ending on or before the Closing Date. Acquiror shall prepare, or cause to be prepared, and shall timely file, or cause to be timely filed, all tax returns of the Companies, Alcomat, Allied Concrete and any of their Subsidiaries for all periods ending after the Closing Date.

(b) Sellers’ Obligations . The Seller Indemnifying Parties shall be responsible for and pay and shall indemnify and hold harmless the Acquiror Indemnified Parties with respect to (i) any and all taxes imposed on the Companies, Alcomat, Allied Concrete and any of their Subsidiaries or for which the Companies, Alcomat, Allied Concrete and any of their Subsidiaries are liable with respect to any periods ending on or before the Closing Date, including to the extent apportioned to such period pursuant to Section 6.9(d), and (ii) any costs or expenses with respect to taxes indemnified hereunder. Any indemnity required to be made by the Seller Indemnifying Parties pursuant to this Section 6.9(b) shall be made within 30 days after the Sellers’ receipt of written notice from Acquiror.

(c) Acquiror’s Obligations . Except as otherwise provided in Section 6.9(b) , from and after the Closing Date, Acquiror and the Companies shall be solely responsible for the payment or discharge of all taxes imposed on the Companies, Alcomat, Allied Concrete and any of their Subsidiaries for (i) all periods ending after the Closing Date and (ii) any costs or expenses with respect to taxes indemnified hereunder. Acquiror shall indemnify, defend and hold the Seller Indemnified Parties harmless from any and all taxes that are Acquiror’s responsibility pursuant to the immediately preceding sentence. Any indemnity payment required to be made by Acquiror pursuant to this Section 6.9(c) shall be made within 30 days after Acquiror’s receipt of written notice from the Sellers.

 

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(d) Apportionment . For the sole purpose of appropriately apportioning any taxes relating to a period that includes (but that would not end on) the Closing Date, Acquiror will, to the extent permitted by applicable Law, elect with the relevant taxing authority to treat for all purposes the Closing Date as the last day of a taxable period of the Companies, Alcomat, Allied Concrete and any of their Subsidiaries. In the case where applicable Law does not permit the Companies, Alcomat, Allied Concrete and any of their Subsidiaries to treat the Closing Date as the last day of a taxable period, then for purposes of this Agreement, the portion of such tax that is attributable to the Companies, Alcomat, Allied Concrete and any of their Subsidiaries for the part of such taxable period that ends on the Closing Date shall be (i) in the case of a tax that is not transaction-based, the total amount of such tax for the full taxable period that includes the Closing Date multiplied by a fraction, the numerator of which is the number of days from the beginning of such taxable period to and including the Closing Date and the denominator of which is the total number of days in such full taxable period, and (ii) in the case of transaction-based taxes, including any based on net income, the tax that would be due with respect to such partial period, if such partial period were a full taxable period, apportioning income, gain, expenses, loss, depreciation, deductions and credits equitably based on an interim closing of the books.

(e) Contests . For purposes of this Agreement, a “ Contest ” is any audit, court proceeding or other dispute with respect to any tax matter that affects the Companies, Alcomat, Allied Concrete and any of their Subsidiaries. Unless Acquiror has previously received written notice from the Sellers of the existence of such Contest, Acquiror shall give written notice to the Sellers of the existence of any Contest relating to a tax matter that is the responsibility of the Seller Indemnifying Parties under Section 6.9(b) within ten days from the receipt by Acquiror of any written notice of such Contest, but no failure to give such notice shall relieve the Seller Indemnifying Parties of any liability hereunder, except to the extent that the Seller Indemnifying Parties are prejudiced by such failure to give timely notice. Unless the Sellers have previously received written notice from Acquiror of the existence of such Contest, the Sellers shall give written notice to Acquiror of the existence of any Contest for which Acquiror has responsibility within ten days from the receipt by the Sellers of any written notice of such Contest. Acquiror, on the one hand, and the Sellers, on the other hand, agree, in each case at no cost to the other party, to cooperate with the other and the other’s representatives in a prompt and timely manner in connection with any Contest. Such cooperation shall include, but not be limited to, making available to the other party, during normal business hours, all books, records, returns, documents, files, other information (including, without limitation working papers and schedules), officers or employees (without substantial interruption of employment) or other relevant information necessary or useful in connection with any Contest requiring any such books, records and files. The Sellers shall, at their election, have the right to represent each of the Company’s interests in any Contest relating to a tax matter arising in a period ending on or before the Closing Date, to employ counsel of their choice at their expense and to control the conduct of such Contest, including settlement or other disposition thereof; provided, however, that Acquiror shall have the right to consult with the Sellers regarding any such Contest that may affect either of the Companies , Alcomat, Allied Concrete and any of their Subsidiaries or taxes relating to the BSI Properties for any periods ending after the Closing Date at Acquiror’s own expense and provided , further , that any settlement or other disposition of any such Contest may only be with the consent of Acquiror, which consent will not be unreasonably withheld, delayed or conditioned. Acquiror shall have the right to control the conduct of any Contest with respect to any tax matter arising in a period ending after the Closing Date.

(f) Controlling Provisions . In the event of any conflict between the provisions of this Section 6.9 and any other provisions of this Article VI , this Section 6.9 shall be controlling with respect to any claim for indemnification for taxes.

 

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(g) Transfer Taxes . All city and county documentary, stamp or other transfer taxes relating to real property resulting from the transactions contemplated by this Agreement shall be borne and paid equally by the Seller Parties on the one hand and Acquiror on the other hand.

(h) BSI Properties Tax Apportionment . Any real property taxes imposed with respect to the BSI Properties for the taxable period that includes the Closing Date shall be borne by BSI and Acquiror (or its affiliates, including Alleyton), respectively, based on the proportionate number of days during such period that the BSI Properties were owned by BSI (which shall include the Closing Date), on the one hand, and Acquiror (or its affiliates, including Alleyton), on the other hand.

(i) BSI Properties Roll Back Tax Obligations . To the extent that real property taxes are owed with respect to the BSI Properties for any taxable period or portion thereof ending on or prior to the Closing Date solely as a result of Acquiror or its Affiliates changing the use of the BSI Properties after the Closing Date such that the BSI Properties fail to qualify for the “open space” or “agricultural use” real property tax exemptions, such real property taxes shall be borne and paid by Acquiror or its Affiliates.

ARTICLE VII.

CONDITIONS TO ACQUIROR’S OBLIGATIONS

The obligations of Acquiror hereunder shall be subject to the satisfaction, as of the Closing Date, of the following conditions (any of which may be waived, in whole or in part, by Acquiror):

SECTION 7.1 Representations and Warranties; Covenants . The representations and warranties of the Sellers contained in this Agreement (including the Disclosure Schedules, as they may have been supplemented or amended in accordance with Section 5.16 , and Exhibits) or any certificate, instrument or other document delivered to Acquiror in connection herewith shall be true and correct in all material respects as of the Closing Date as if made on the Closing Date (without giving effect to any express limitation or qualification in such representations and warranties as to “materiality,” including the word “material” or “material adverse effect”); provided that the representations and warranties in Sections 3.1 and 3.2 shall be true and correct in all respects. The Sellers and the Companies shall have duly performed and complied in all material respects with all covenants and agreements required by this Agreement to be performed by such parties at or prior to the Closing Date. Acquiror shall have been furnished with a certificate of the Seller Representative, dated the Closing Date, certifying on behalf of such Sellers in such detail as Acquiror reasonably may request to the fulfillment of the foregoing conditions.

SECTION 7.2 Certain Deliverables . The appropriate Seller, as the case may be, shall have furnished (or caused to be furnished) Acquiror with the following:

(a) assignments or other transfer documents as may be necessary to convey good and marketable title to all of the Equity Interests to Acquiror, free and clear of all Encumbrances and certifying that there are no outstanding options to acquire any Equity Interests or other ownership interests in the Companies;

(b) duly executed Deeds in the form set forth in Exhibit E (the “ BSI Properties Deeds ”) and an ALTA owner’s extended coverage policy of title insurance, together with any required endorsements, issued by a title company acceptable to Acquiror (and its lenders) insuring Acquiror’s fee simple interest in the Owned Property.

(c) the certificates referred to in Section 7.1 regarding fulfillment of closing conditions;

 

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(d) certificates as to the good standing of each of the Companies, executed by the appropriate officials of the State of Texas and of each other state in which the Companies and any affiliate is qualified as a foreign corporation;

(e) resignations, effective on the Closing Date, of those persons named on Schedule 7.2(e) who are at the time officers and managers of either of the Companies;

(f) the minute books, ownership transfer and similar records and entity seals of each of the Companies;

(g) a certificate of non-foreign status of each of the Seller Parties, reasonably acceptable to Acquiror, satisfying the requirements of Section 1.1445-2(b)(2)(i) of the United States Treasury Regulations promulgated under the Code;

(h) all termination statements and instruments of release, in form and substance satisfactory to counsel for Acquiror, releasing and discharging all Encumbrances (other than Permitted Encumbrances) against the Companies, the assets of the Companies or the BSI Properties or otherwise providing for the release and discharge of such items upon such terms and conditions as are acceptable to Acquiror and evidence of the payment or cancellation of all Closing Indebtedness;

(i) the originals, or copies certified to the satisfaction of Acquiror, of all Property Leases and Title Documents with respect to the Real Property and Property Leases with respect to the Leased Property and the usual and customary documents with respect to the transfer of the Real Property and the Leased Property;

(j) if the Seller is married, a duly executed Spousal Consent in the form set forth in Exhibit F (the “ Spousal Consent ”);

(k) Employment Agreements duly executed by Alleyton and the Company Employees set forth on Schedule 7.13 ;

(l) an assignment of the leases set forth on Schedule 7.2(l) to Alleyton;

(m) the Alcomat Title Insurance Policies, from which the Alcomat Title Objections shall have been removed; and

(n) such other documents relating to the Companies, the Seller Parties, the BSI Properties, the Equity Interests or the Transactions as Acquiror reasonably may request.

SECTION 7.3 Material Adverse Change . (a) Since the Balance Sheet Date, (i) there shall not have been any material adverse change in the business, financial condition, properties or results of operations of the Companies and the BSI Properties taken as a whole; provided , however , that the following shall not be deemed to constitute, and shall not be taken into account in determining whether there has been, any such material adverse change: (x) general business or economic conditions and events that do not materially disproportionately affect the Companies, taken as a whole, as compared to other businesses engaged in the industry in which the Companies operate and (y) conditions that generally affect the industry in which the Companies operate that do not materially disproportionately affect the Companies taken as a whole, as compared to other businesses engaged in the industry in which the Companies operate (a “ Material Adverse Change ”), and (ii) there shall not exist any known fact, event, change or circumstance that would reasonably be expected to result in a Material Adverse Change; and (b) Acquiror shall have been furnished with a certificate of the Seller Representative, dated the Closing Date, to that effect.

 

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SECTION 7.4 Related Party Advances . On the Closing Date, except for those items described on Schedule 7.4 , all notes payable, accounts receivable, advances, loans and other amounts owing to the Companies by any officer, employee, Seller, former member, stockholder or manager and directors shall have been repaid in full to the Companies.

SECTION 7.5 Legal Proceedings . No Proceeding shall be pending or threatened before or by any court or Governmental Authority (a) challenging the Transactions or otherwise seeking damages, or (b) seeking to restrain or prevent the carrying out of the Transactions or to prohibit or limit the ability of the Companies, Acquiror or its affiliates, as applicable, to exercise full rights of ownership of the Equity Interests or the BSI Properties or to operate or control the assets, property and business of the Companies after the Closing Date.

SECTION 7.6 General Release . The Sellers, the spouses of any Seller Parties who are married and those officers and members of the Companies as described on Schedule 7.6 shall have delivered to the Companies a general release, substantially in the form of Exhibit G , of all claims they may have through the Closing Date against the Companies.

SECTION 7.7 Illegality . No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law or Order that has the effect of (a) making the Transactions illegal or otherwise restraining or prohibiting the consummation of the Transactions or (b) prohibiting or limiting the ability of Acquiror or its affiliates to exercise full rights of ownership of the Equity Interests or Acquiror or Alleyton to own, control or operate the BSI Properties or the Companies to operate or control their assets, property and business after the Closing Date.

SECTION 7.8 Third Party Consents . The Companies and Acquiror shall have received to Acquiror’s satisfaction all consents, waivers, approvals, amendments and authorizations from Government Authorities or other third parties that are reasonably necessary or desirable under any applicable Law, Permit, license, agreement, contract or otherwise in connection with the consummation of the Transactions or to enable the Companies to own and control their assets and conduct their business after the Closing and Acquiror to own the Equity Interests and Alleyton to own, control and operate the BSI Properties, including enjoying the benefits of all such Permits, licenses, agreements or contracts in all material respects consistent with past practice; including, without limitation the consents set forth on Schedule 7.8 .

SECTION 7.9 HSR Act . Any waiting period (and any extension thereof) under the HSR Act applicable to the Transactions shall have expired or shall have been terminated.

SECTION 7.10 Financing . Acquiror and/or its affiliates shall have received the financing proceeds contemplated by Acquiror to finance the Transaction and the related fees and expenses.

SECTION 7.11 Indebtedness . The Companies shall have no outstanding Indebtedness other than Indebtedness to be repaid at Closing and the Companies shall not be in default of the terms of any loan or credit agreement or other agreement relating to the Indebtedness either prior to or as a consequence of the Closing of the Transactions.

SECTION 7.12 Diligence . In consideration of the agreements contained herein, including the rights of the Sellers and TBGSI under Section 5.16 to supplement and amend the Disclosure Schedules, and in recognition of the fact that Acquiror’s due diligence review and consideration of the

 

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Companies, the BSI Properties and the advisability of the Transactions will continue after the date hereof with respect to issues and facts both known and unknown, disclosed (on the schedules hereto or otherwise) and not yet disclosed, Acquiror shall have completed such review and consideration with respect to all aspects of the Companies, the BSI Properties and the Transactions, including without limitation, their respective business, Real Property (and title thereto), the Owens Property, reserves, environmental condition, legal matters and any other factors considered by Acquiror, and the results of such review and consideration shall be satisfactory to Acquiror in its sole discretion. This discretion may be exercised whether or not there has been any Material Adverse Change and without regard to considerations of the “materiality” of any issue.

SECTION 7.13 Employment Agreements . Alleyton will have entered into Employment Agreements in the form of Exhibit I hereto with each of the Company Employees set forth on Schedule 7.13 (such agreements with such individuals, the “ Employment Agreements ”).

SECTION 7.14 Kleimann Lease . Alleyton will have entered into a lease with R.C. Kleimann, Sr. and Patsy Kleimann for the property informally known as the Kleimann Property, as more fully described on Schedule 7.14 hereto, and such lease shall be reasonably satisfactory to Acquiror.

ARTICLE VIII.

CONDITIONS TO THE SELLERS’ OBLIGATIONS

The obligations of the Sellers hereunder shall be subject to the satisfaction, as of the Closing Date, of the following conditions (any of which may be waived, in whole or in part, by the Seller Representative in its sole discretion):

SECTION 8.1 Representations and Warranties; Covenants . The representations and warranties of Acquiror contained in this Agreement (including the Schedules and Exhibits), or any certificate, instrument or other document delivered by it in connection herewith, shall be true and correct in all material respects as of the Closing Date, as if made on the Closing Date (without giving effect to any express limitation or qualification in such representations and warranties as to “materiality,” including the word “material” or “material adverse effect”); provided that the representations and warranties in Sections  4.1 and 4.2 shall be true in all respects. Acquiror shall have duly performed and complied in all material respects with all covenants and agreements required by this Agreement to be performed by Acquiror at or prior to the Closing Date. The Seller Representative shall have been furnished with a certificate of an appropriate officer of Acquiror, dated the Closing Date, certifying in such detail as the Seller Representative reasonably may request to the fulfillment of the foregoing conditions.

SECTION 8.2 Certain Deliverables . Acquiror shall have furnished (or cause to be furnished) the Seller Representative with the following:

(a) the certificate referred to in Section 8.1 regarding fulfillment of closing conditions; and

(b) such other documents relating to Acquiror as the Seller Representative reasonably may request.

SECTION 8.3 Legal Proceedings . No Proceeding shall be pending or threatened before or by any court or Governmental Authority challenging the Transactions or otherwise seeking damages or seeking to restrain or prevent the carrying out of the Transactions.

 

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SECTION 8.4 Illegality . No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law or Order that has the effect of making the Transactions illegal or otherwise restraining or prohibiting the consummation of the Transactions.

SECTION 8.5 HSR Act . Any waiting period (and any extension thereof) under the HSR Act applicable to the Transactions shall have expired or shall have been terminated.

ARTICLE IX.

TERMINATION

SECTION 9.1 Termination . This Agreement may be terminated at any time prior to the Closing:

(a) by mutual written consent of Acquiror, on the one hand, and the Seller Representative, on the other hand;

(b) by the Seller Representative or Acquiror if the Transactions shall not have been consummated by 11:59 p.m. eastern time on January 31, 2014 (and no later than such time and date, such time and date being materially important to the parties) (the “ Termination Date ”); provided , that the right to terminate this Agreement under this Section 9.1(b) shall not be available if the failure of the party so requesting termination to comply with its obligations under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Transactions to be consummated on or prior to such date;

(c)(i) by the Seller Representative if any of the conditions to the Sellers’ obligations described in Article VIII are not satisfied by the Termination Date or if satisfaction of such conditions is or becomes impossible and the Seller Representative has not waived such condition or (ii) by Acquiror if any of the conditions to Acquiror’s obligations described in Article VII are not satisfied by the Termination Date or if satisfaction of such conditions is or becomes impossible and Acquiror has not waived such condition;

(d) by the Seller Representative or the Acquiror in the event that any Governmental Authority shall have issued an Order or taken any other action restraining, enjoining or otherwise prohibiting the Transactions and such Order or other action shall have become final and nonappealable;

(e) by Acquiror, if between the date hereof and the Closing, (i) an event or condition occurs that is, or is reasonably likely to (A) result in a Material Adverse Change or (B) be materially adverse to the ability of the Sellers or the Companies to perform their obligations under this Agreement or any Ancillary Agreement or to consummate the Transactions, including, without limitation, as a consequence of any material impediment, interference or delay or (ii) Acquiror shall determine in its sole discretion that the condition in Section 7.12 will not be satisfied.

SECTION 9.2 Effect of Termination . In the event of termination of this Agreement as provided in Section 9.1 , this Agreement shall forthwith become void and there shall be no liability on the part of any party hereto or their respective affiliates, officers, directors, principals, managers, members or equityholders with respect to such termination or the Transactions arising under this Agreement or otherwise whether based on a contract claim hereunder, or otherwise, unless a party hereto failed to use good faith efforts to satisfy its covenants and agreements set forth herein, provided , that Section 5.6 relating to confidentiality, Section 10.2 relating to fees and expenses, Section 10.3 relating to governing law, Section 10.4 relating to notices, Section 10.5 relating to submission to jurisdiction, Section 10.6 relating to entire agreement, Section 10.12 relating to third-party beneficiaries and this Section 9.2 shall survive any such termination and remain in effect.

 

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ARTICLE X.

MISCELLANEOUS

SECTION 10.1 Survival of Representations, Warranties and Covenants . The covenants, agreements, representations and warranties entered into or made pursuant to this Agreement shall be continuing and survive the Closing Date for a period through and including the last day upon which a party may seek indemnification for a breach of such covenant, agreement, representation or warranty under Article VI .

SECTION 10.2 Expenses . Except as otherwise provided in this Agreement, each party shall pay its own expenses in connection with the preparation and performance of this Agreement and the consummation of the Transactions, including without limitation all fees and expenses of investment bankers, financial advisors, legal counsel, independent accountants and actuaries, whether or not the Closing shall have occurred. If the amount of Transaction Expenses for which the Companies are held responsible exceeds the amount used in the calculation of the Closing Date Companies Purchase Price, then the Seller Parties shall promptly reimburse the Companies or Acquiror for such amount.

SECTION 10.3 Governing Law . This Agreement shall be governed by and construed and enforced in accordance with the internal, substantive laws of the State of Delaware, without giving effect to the conflict of laws rules thereof that would apply the law of another state.

SECTION 10.4 Notices . All notices, consents, requests, instructions, approvals and other communications provided for herein shall be deemed validly given, made or served if in writing and delivered personally or sent by certified mail, postage prepaid, or by overnight courier, or by facsimile, charges prepaid:

(a) if to Acquiror, addressed to:

c/o Summit Materials, LLC

1550 Wynkoop, 3 rd Floor

Denver, CO 80202

Attention: Thomas Hill

                Anne Benedict

Facsimile: (202) 339-9517

Gibson, Dunn & Crutcher LLP

200 Park Avenue

New York, NY 10166-0193

Attention: Steven R. Shoemate

Facsimile: (212) 351-5316

(b) if to the Sellers or Seller Representative, addressed to:

P.O. Box 711

Columbus, Texas 78934

Facsimile: (979) 776-3544

 

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with a copy to (which shall not constitute notice):

Dawn T. Dittmar

P.O. Box 3185

Bryan, Texas 77895

Facsimile: (979) 776-3544

or such other address as shall be furnished in writing by any party to the others.

SECTION 10.5 Jurisdiction; Agent for Service; Waiver of Jury Trial . Legal proceedings commenced by the parties hereto or any of their Representatives arising out of any of the Transactions shall be brought exclusively in the federal courts, or in the absence of federal jurisdiction in state courts, in either case in the State of Delaware. The parties hereto irrevocably and unconditionally submit to the jurisdiction of such courts and agree to take any and all future action necessary to submit to the jurisdiction of such courts. The parties hereto irrevocably waive any objection that they now have or hereafter may have to the laying of venue of any suit, action or proceeding brought in any such court and further irrevocably waive any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Final judgment against the parties hereto in any such suit shall be conclusive and may be enforced in other jurisdictions by suit on the judgment, a certified or true copy of which shall be conclusive evidence of the fact and the amount of any indebtedness or liability of the parties hereto therein described, or by appropriate proceedings under any applicable treaty or otherwise.

EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS.

SECTION 10.6 Entire Agreement . This Agreement, the Ancillary Agreements and the schedules, exhibits and other documents and agreements contemplated hereby and thereby represent the entire agreement among the parties hereto and supersedes and cancels any prior oral or written agreement, letter of intent or understanding related to the subject matter hereof or thereof.

SECTION 10.7 Binding Effect . Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof nor any of the documents executed in connection herewith may be assigned by operation of Law or otherwise by any party hereto without the written consent of the other parties hereto, except that Acquiror shall have the right to assign all or a portion of its rights and obligations under this Agreement to any affiliate of Acquiror if such transferee agrees to assume Acquiror’s obligations under this Agreement (it being understood that no such assignment shall relieve Acquiror of its obligations hereunder or thereunder). Nothing contained herein, expressed or implied, is intended to confer upon any Person or entity other than the parties hereto and their successors in interest and permitted assignees any rights or remedies under or by reason of this Agreement unless so stated herein to the contrary.

SECTION 10.8 Amendments; Waivers . Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Seller Representative and Acquiror, or in the case of a waiver, by the party against whom the waiver is sought. Any waiver of any term or condition shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition of this Agreement. The failure of any party hereto to assert any of its rights hereunder shall not constitute a waiver of any such rights.

 

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SECTION 10.9 Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties. This Agreement may be executed by facsimile signature and a facsimile signature shall constitute an original signature for all purposes.

SECTION 10.10 Severability . In the event any provision, or portion thereof, of this Agreement is held by a court having proper jurisdiction to be unenforceable in any jurisdiction, then such portion or provision shall be deemed to be severable as to such jurisdiction (but, to the extent permitted by Law, not elsewhere) and shall not affect the remainder of this Agreement, which shall continue in full force and effect so long as either the economic or legal substance of the transactions contemplated hereby is not materially varied or is not affected in any manner materially adverse to any party or such party waives its rights under this Section with respect thereto in writing. If any provision of this Agreement is held to be so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is necessary for it to be enforceable.

SECTION 10.11 Intentionally Omitted .

SECTION 10.12 No Third-Party Beneficiaries . Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person, entity, company, partnership, limited liability company or other unincorporated association other than the parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.

SECTION 10.13 Obligations of Holders . Whenever this Agreement requires the Companies, BSI, CGC, TBGSI or any of their affiliates to take or omit to take any action, such requirement shall be deemed to also include an undertaking on the part of the Equityholders to cause (i) the Companies, BSI, CGC, TBGSI or their affiliates, as the case may be to take or omit to take such action (or, if such obligation requires the Companies, BSI, CGC, TBGSI or affiliates to act or omit to act, to cause the Companies, BSI, CGC, TBGSI or their affiliates to act or omit to act uniformly with respect thereto) and (ii) to the extent necessary to effectuate the purpose of any such covenant, agreement or obligation, cause any other affiliate of the Companies, the Equityholders, CGC, TBGSI or BSI to take or omit to take such action.

SECTION 10.14 Interpretation . Each of the parties acknowledges that it participated in the drafting of this Agreement and, in the event that any dispute arises in the interpretation or construction of this Agreement, no presumption shall arise that any party drafted this Agreement. Whenever a reference is made in this Agreement to a Section, Article, Exhibit or Schedule such reference shall be to a Section, Article, Exhibit or Schedule of this Agreement unless otherwise indicated. The table of contents, table of definitions and headings contained in this Agreement or in any Exhibit are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. The word “including” and words of similar import when used in this Agreement will mean “including, without limitation,” unless otherwise specified.

SECTION 10.15 Seller Representative .

(a) Each Equityholder hereby appoints Todd Barten as its Seller Representative (the Seller Representative ) and Todd Barten accepts such appointment as the Seller Representative.

 

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(b) The Seller Representative will serve as the agent and attorney-in-fact for the Seller Parties to facilitate the consummation of the Transactions, and in connection with the activities to be performed on behalf of the Seller Parties under this Agreement and any other related Transaction documents, for the purposes and with the powers and authority set forth in this Section 10.15 , which will include the full power and authority:

(i) to take such actions and to execute and deliver such amendments, modifications, waivers, terminations and consents in connection with this Agreement and the other Transaction documents and the consummation of the Transactions as the Seller Representative, in his reasonable discretion, deems necessary or desirable to give - effect to intentions of this Agreement and the other Transaction documents;

(ii) as the agent and attorney-in-fact of the Seller Parties to enforce and protect the rights and interests of such Seller Parties and to enforce and protect the rights and interests of the Seller Parties arising out of or under or in any manner relating to this Agreement and each other Transaction document and, in connection therewith, to:

(A) resolve all questions, disputes, conflicts and controversies concerning (1) the Estimated Purchase Price Calculation Statement and the Final Purchase Price Calculation Statement and (2) indemnification claims pursuant to Article VI of this Agreement;

(B) employ such agents, consultants and professionals, delegate authority to their agents, take such actions and execute such documents on behalf of the Seller Parties in connection with this Agreement as the Seller Representative, in his reasonable discretion, deems to be in the best interest of the Seller Parties;

(C) investigate, defend, contest or litigate any action initiated by an Acquiror Indemnified Party, or any other Person, against a Seller Party, and receive process on behalf of any or all Seller Parties in any such claim, action or investigation and compromise or settle on such terms as the Seller Representative determines to be appropriate, give receipts, releases and discharges on behalf of the Seller Parties with respect to any such claim, action or investigation;

(D) file any proofs, debts, claims and petitions as the Seller Representative may deem advisable or necessary;

(E) settle or compromise any indemnification claim (pursuant to the terms of this Agreement) asserted under Article VI of this Agreement;

(F) assume, on behalf of the Seller Parties, the defense of any indemnification claim (pursuant to the terms of this Agreement) that is the basis of any claim asserted under Article VI of this Agreement;

(G) file and prosecute appeals from any decision, judgment or award related to any of the foregoing indemnification claims, actions or investigations, or others arising in connection with this Agreement it being understood that the Seller Representative will not have any obligation to take any such actions, and will not have liability for any failure to take any such action;

(iii) to enforce payment of any other amounts payable to the Seller Parties in each case on behalf of such Seller Parties, in the name of the Seller Representative;

 

51


(iv) to waive or refrain from enforcing any right of the Seller Parties arising out of or under or in any manner relating to this Agreement or any other Transaction document;

(v) to make, execute, acknowledge and deliver all such other agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Seller Representative, in his sole and absolute direction, considers necessary or proper or convenient in connection with or to carry out the activities described above in paragraphs (i) through (iv) and the Transactions;

(vi) to receive payments from Acquiror, other than payment of the Closing Date Companies Purchase Price, on behalf of and for the Seller Parties and disbursing such payments to the Sellers in accordance with this Agreement or the Seller Parties’ interests;

(vii) to establish an escrow for the payment of joint expenses of the Seller Parties under this Agreement;

(viii) to prepare, review, contest, dispute, negotiate, resolve, or otherwise act in connection with the Estimated Purchase Price Calculation Statement;

(ix) to negotiate, settle, adjust, contest, dispute, resolve or otherwise deal with any investigations, audits, reviews, contests, disputes or claims of any tax authorities arising out of or related to the Companies’ or their affiliates’ tax returns or taxes;

(x) to inspect, review, examine or copy, or authorize representatives to do so, the books or records of the Acquiror, the Companies or their affiliates as permitted by this Agreement; and

(xi) collect, compromise, settle, receive, factor or negotiate, or prosecute, defend, settle or compromise any legal actions to collect, any Closing Date Receivables.

(c) All decisions, actions, consents, instructions and communications by the Seller Representative shall be binding upon the Seller Parties and no Seller Party shall have the right to object to, dissent from, protest or otherwise contest the same.

(d) The Acquiror is entitled to rely exclusively upon all decisions, actions, consents, instructions or communications of the Seller Representative under this Agreement as the decisions, actions, consents, instructions or communications of the Seller Parties. The Acquiror (i) need not be concerned with the authority of the Seller Representative to act on behalf of the Seller Parties appointing such Seller Representative, (ii) will not be held liable or accountable in any matter for any action taken in accordance with any decision, action, consent, instruction or communication of the Seller Representative and (iii) will not be held liable or accountable in any manner for any act or omission of the Seller Representative in such capacity.

(e) Each Seller Party makes, constitutes and appoints Todd Barten such Person’s true and lawful attorney-in-fact for and in such Person’s name, place, and stead and for its use and benefit, to prepare, execute, certify, acknowledge, swear to, file, deliver or record any and all agreements, instruments or other documents, and to take any and all actions, that are within the scope and authority of the Seller Representative provided for in this Section 10.15 . The grant of authority provided for in this Section 10.15 is coupled with an interest and is being granted, in part, as an inducement to the parties to enter into this Agreement and is irrevocable and will survive the death, incompetency, bankruptcy or liquidation of any Seller Party and will be binding on any successor thereto.

 

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(f) If Todd Barten becomes unable to perform his responsibilities as the Seller Representative under this Agreement or resigns from such position, Perry Glen Shepard will automatically be appointed to replace Todd Barten as the Seller Representative, and if Perry Glen Shepard becomes unable to perform his responsibilities as Seller Representative under this Agreement or resigns from such position, the Seller Parties shall be entitled to elect a new Seller Representative by a vote of the Seller Parties holding a majority of the Equity Interests at the date hereof. Notice of such appointment shall be sent to the Acquiror and until such notice is received, the Acquiror shall be entitled to rely on the - decisions, actions, consents, - instructions and communications of the prior Seller Representative. Any former Seller Representative will be entitled to the same indemnification rights and protection from liability provided to a then-serving Seller Representative with regard to any actions taken while serving as the Seller Representative.

(g) For purposes of obtaining consent from the Seller Representative, the Acquiror may rely on documents executed in multiple counterparts, the signatures of each individual appointed as the Seller Representative need not appear on the same counterpart and delivery of an executed counterpart signature page by facsimile or portable document format (.PDF) is as effective as executing and delivering such signature page in the presence of the other parties to this Agreement.

SECTION 10.16 Compensation; Exculpation.

(a) In dealing with this Agreement and any other instruments, agreements or documents relating thereto, and in exercising or failing to exercise all or any of the powers conferred upon the Seller Representative, (i) the Seller Representative will not assume any, and will incur no, responsibility whatsoever to any Seller Party by reason of any error in judgment or other act or omission performed or omitted under this Agreement or in connection with this Agreement or any other transaction document, unless the Seller Representative’s error in judgment, act or omission constitutes gross negligence or willful misconduct; (ii) the Seller Representative will be entitled to rely on the advice of counsel, public accountants or other independent experts experienced in the matter at issue, and any error in judgment or other act or omission of the Seller Representative pursuant to such advice will in no event subject the Seller Representative to liability to any Seller Party unless by the Seller Representative’s gross negligence or willful misconduct; and (iii) the Seller Representative will be entitled to indemnification from and be held harmless by the Seller Parties, jointly and severally, appointing such Seller Representative against any loss, expense (including reasonable attorneys’ fees) or other liability arising out of his service as a Seller Representative under this Agreement, other than for harm directly caused by the Seller Representative’s fraudulent act.

(b) All of the immunities and powers granted to the Seller Representative under this Agreement will survive the Closing or any termination of this Agreement.

SECTION 10.17 Accredited Investor Representations . As of the date hereof, the Major Sellers have executed and delivered the Accredited Investor certification in the form set forth on Exhibit H hereto.

(Signature Page Follows)

 

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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first written.

 

SUMMIT MATERIALS, LLC
By:   /s/ Michael Brady
Name: Michael Brady
Title: Executive Vice President

 

[Signature Page to Acquisition Agreement]


ALLEYTON RESOURCE CORPORATION
By:   /s/ Todd Barten
  Name:   Todd Barten
  Title:   President

 

COLORADO GULF, LP
By: TEXAS CGC, LLC, its General Partner
By:   /s/ Todd Barten
  Name:   Todd Barten
  Title:   Managing Member

 

TEXAS CGC, LLC
By:   /s/ Todd Barten
  Name:   Todd Barten
  Title:   Managing Member

 

BARTEN SHEPARD INVESTMENTS, LP
By: TBGSI CORP., its General Partner
By:   /s/ Todd Barten
  Name:   Todd Barten
  Title:   President

 

TBGSI CORP.
By:   /s/ Todd Barten
  Name:   Todd Barten
  Title:   President

 

EQUITYHOLDERS:
By:   /s/ Todd Barten
  Name:   Todd Barten

 

By:   /s/ Glen Shepard
  Name:   Glen Shepard

 

[Signature Page to Acquisition Agreement]


EQUITYHOLDERS:
By:   /s/ Johnny Cook
  Name:   Johnny Cook

 

By:   /s/Steve Rhodes
  Name:   Steve Rhodes

 

By:   /s/ Frank Bantle, Sr.
  Name:   Frank Bantle, Sr.

 

[Signature Page to Acquisition Agreement]

Exhibit 10.7

Execution Version

AMENDMENT TO ACQUISITION AGREEMENT

This AMENDMENT TO ACQUISTION AGREEMENT (this “ Amendment ”) is made and entered into as of January 14, 2014, by and among SUMMIT MATERIALS, LLC, a Delaware limited liability company (the “ Acquiror ”), ALLEYTON RESOURCE CORPORATION, a Texas corporation (“ Alleyton ”), COLORADO GULF, LP, a Texas limited partnership (“ Colorado ”), TEXAS CGC, LLC, a Texas limited liability company (“ CGC ”), BARTEN SHEPARD INVESTMENTS, LP, a Texas limited partnership (“ BSI ”), TBGSI CORP., a Texas corporation (“ TBGSI ”), and the individuals signatory hereto (collectively the “ Equityholders ”).

RECITALS

A. The Acquiror, Alleyton, Colorado, CGC, BSI, TBGSI and the Equityholders (collectively, the “ Parties ”) are parties to that certain Acquisition Agreement, dated as of December 5, 2013 (the “ Acquisition Agreement ”). Capitalized terms used but not defined herein shall have the meanings set forth in the Acquisition Agreement.

B. The Parties desire to amend the Acquisition Agreement as set forth herein.

AGREEMENT

In consideration of the foregoing and the mutual covenants contained in the Acquisition Agreement and this Amendment and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Amendments to the Acquisition Agreement .

a. The following sentence is hereby added as the last sentence of Section 2.3:

“The Closing shall be deemed effective as of 11:59 p.m., Central time, on the Closing Date.”

b. The last sentence of Section 2.7(a) is hereby amended and restated in its entirety as follows:

“The parties agree that such payment includes imputed interest at the applicable Federal rate in accordance with Section 1274 of the Code and that such portion of each installment payment will be treated as interest for U.S. federal income tax purposes.”

c. The last sentence of Section 2.8 is hereby amended and restated in its entirety as follows:

“The parties agree that such payment includes imputed interest at the applicable Federal rate in accordance with Section 1274 of the Code and that such portion of each earn-out payment will be treated as interest for U.S. federal income tax purposes.”


d. The following sentence is hereby added as the last sentence of Section 2.12(a):

“The amounts of the Closing Cash, Colorado Cash, Closing Indebtedness, Closing Date Net Working Capital, Net Working Capital Adjustment and Transaction Expenses set forth in the Final Purchase Calculation Statement are sometimes referred to in this Section 2.12 as “Final Closing Cash,” “Final Colorado Cash,” “Final Closing Indebtedness,” “Final Closing Date Net Working Capital,” “Final Net Working Capital Adjustment” and “Final Transaction Expenses,” respectively.”

e. Section 2.12(c) is hereby amended and restated in its entirety as follows:

“If the amount (such amount, the “ Alleyton True-Up Amount ”) equal to the sum of (i) Final Closing Cash other than Final Colorado Cash, (ii) the amount equal to (A) Closing Indebtedness, as set forth in the Estimated Purchase Price Calculation Statement, minus (B) Final Closing Indebtedness, (iii) the amount equal to (A) Transaction Expenses, as set forth in the Estimated Purchase Price Calculation Statement, minus (B) Final Transaction Expenses, and (iv) the product of (A) the Final Net Working Capital Adjustment and (B) the fraction consisting of (x) a numerator equal to the Final Closing Date Net Working Capital of Alleyton and (y) a denominator equal to the Final Closing Date Net Working Capital is:

(1) greater than zero (such excess amount, the “ Alleyton Excess ”), then Acquiror shall cause to be paid to the Alleyton Sellers their respective Pro Rata Share of the Alleyton Excess to their respective Designated Accounts;

(2) less than zero (the amount of such difference, the “ Alleyton Deficiency ”), then each Alleyton Seller shall pay to Acquiror its respective Pro Rata Share of such Alleyton Deficiency;

(3) zero, then no further payment shall be due to either Acquiror or the Alleyton Sellers under this Section 2.12(c) .”

f. Section 2.12(d) is hereby amended and restated in its entirety as follows:

“If the amount (such amount, the “ Colorado True-Up Amount ”) equal to the sum of (i) Final Colorado Cash and (ii) the product of (A) the Final Net Working Capital Adjustment and (B) the fraction consisting of (x) a numerator equal to the Final Closing Date Net Working Capital of Colorado and (y) a denominator equal to the Final Closing Date Net Working Capital is:

(1) greater than zero (such excess amount, the “ Colorado Excess ”), then Acquiror shall cause to be paid to the Colorado Sellers their respective Closing Share of the Colorado Excess to their respective Designated Accounts;

 

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(2) less than zero (the amount of such difference, the “ Colorado Deficiency ”), then each Colorado Seller shall pay to Acquiror its respective Closing Share of such Colorado Deficiency;

(3) zero, then no further payment shall be due to either Acquiror or the Colorado Sellers under this Section 2.12(d) .”

g. Section 2.12(e) is hereby amended and restated in its entirety as follows:

“If the amount equal to the sum of the Alleyton True-Up Amount and the Colorado True-Up Amount is greater than zero, such amount shall be the “ Excess .” If the amount equal to the sum of the Alleyton True-Up Amount and the Colorado True Amount is less than zero, such amount shall be the “ Deficiency .”

h. The following sentences are hereby added as the last two sentences of Section 2.12(f):

“Amounts payable by Acquiror to an Equity Interest Seller, or by an Equity Interest Seller to Acquiror, under Sections 2.12(c) and 2.12(d) may be aggregated together and paid in one combined payment. Amounts payable by an Equity Interest Seller to Acquiror and by Acquiror to such Equity Interest Seller under Sections 2.12(c) and 2.12(d) may be netted against each other and the net amount paid by such Equity Interest Seller or Acquiror, as applicable.”

i. Schedules 2.2(b), 2.5(b)(vi), 2.5(b)(vii), 2.13, 5.2(b)(iii), 6.1(c) and 7.2(l) to the Acquisition Agreement are hereby amended and restated in their entirety as set forth on Exhibit A hereto.

2. General .

a. This Amendment will be governed by the internal, substantive laws of the State of Delaware, without giving effect to the conflict of laws rules thereof that would apply the law of another state.

b. This Amendment may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same counterpart.

c. This Amendment may be executed by facsimile signature and a facsimile signature shall constitute an original signature for all purposes.

 

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d. Except as otherwise expressly provided in and amended by this Amendment, the Acquisition Agreement shall remain in full force and effect.

[Signature Pages Follow.]

 

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IN WITNESS WHEREOF, this Amendment has been duly executed by the parties hereto as of the day and year first written above.

 

SUMMIT MATERIALS, LLC
By:   /s/ Michael Brady
Name:   Michael Brady
Title:   Executive Vice President

[Signature Page to Amendment to Acquisition Agreement]


ALLEYTON RESOURCE CORPORATION
By:   /s/ Todd Barten
  Name:   Todd Barten
  Title:   President

 

COLORADO GULF, LP
By: TEXAS CGC, LLC, its General Partner
By:   /s/ Todd Barten
  Name:   Todd Barten
  Title:   Managing Member

 

TEXAS CGC, LLC
By:   /s/ Todd Barten
  Name:   Todd Barten
  Title:   Managing Member

 

BARTEN SHEPARD INVESTMENTS, LP
By: TBGSI CORP., its General Partner
By:   /s/ Todd Barten
  Name:   Todd Barten
  Title:   President

 

TBGSI CORP.
By:   /s/ Todd Barten
  Name:   Todd Barten
  Title:   President

 

EQUITYHOLDER:
By:   /s/ Todd Barten
  Name:   Todd Barten

[Signature Page to Amendment to Acquisition Agreement]


EQUITYHOLDER:
By:   /s/ Glen Shepard
  Name:   Glen Shepard

[Signature Page to Amendment to Acquisition Agreement]


EQUITYHOLDER:
By:   /s/ Johnny Cook
  Name:   Johnny Cook

[Signature Page to Amendment to Acquisition Agreement]


EQUITYHOLDER:
By:   /s/ Steve Rhodes
  Name:   Steve Rhodes

[Signature Page to Amendment to Acquisition Agreement]


EQUITYHOLDER:
By:   /s/ Frank Bantle, Sr.
  Name:   Frank Bantle, Sr.

[Signature Page to Amendment to Acquisition Agreement]

Exhibit 10.8

MANAGEMENT INTEREST SUBSCRIPTION AGREEMENT

(Profits Interest Grant)

THIS MANAGEMENT INTEREST SUBSCRIPTION AGREEMENT (this “ Agreement ”) by and between Summit Materials Holdings L.P., a Delaware limited partnership (the “ Company ”), and the individual named on the signature page hereto (“ Executive ”) is made as of the date set forth on the signature page hereto.

WHEREAS, on the terms and subject to the conditions hereof, Executive desires to subscribe for and acquire from the Company, and the Company desires to issue and provide to Executive, the Company’s Class D-1 U.S. Interests, Company’s Class D-1 Non-U.S. Interests, Company’s Class D-2 U.S. Interests and/or Class D-2 Non-U.S. Interests (the “ Interests ”), in each case in the amount set forth on Schedule I-A attached hereto, as hereinafter set forth; and

WHEREAS, this Agreement is one of several agreements being entered into by the Company or its Subsidiaries with certain persons who are or will be key employees or advisors of the Company or one or more Affiliates (collectively with Executive, the “ Management Investors ”) as part of a management equity purchase plan designed to comply with Regulation D or Rule 701, as applicable, promulgated under the Securities Act (as defined below).

NOW, THEREFORE, in order to implement the foregoing and in consideration of the mutual representations, warranties, covenants and agreements contained herein, the parties hereto agree as follows:

1. Definitions .

1.1 Affiliate . An “Affiliate” of, or Person “Affiliated” with, a specified Person shall mean a Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified.

1.2 Agreement . The term “Agreement” shall have the meaning set forth in the preface.

1.3 Blackstone . The term “Blackstone” shall have the meaning set forth in the LP Agreement.

1.4 Board . The “Board” shall mean the Board of Directors of the General Partner of the Company.

 

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1.5 Cause . The term “Cause” shall mean that the Board, based on information then known to the Company or the General Partner of the Company, determines in good faith (A) Executive’s willful or grossly negligent continued failure to substantially perform Executive’s material duties to the Company or its Subsidiaries (other than as a result of total or partial incapacity due to physical or mental illness) for a period of 10 days following written notice by the Company or the General Partner of the Company to Executive of such failure, (B) dishonesty in the performance of Executive’s material duties to the Company or its Subsidiaries, (C) an act or acts on Executive’s part constituting, or plea of guilty or nolo contendere to a crime constituting, (x) a felony under the laws of the United States or any state thereof or (y) a misdemeanor involving moral turpitude, (D) Executive’s willful malfeasance or willful misconduct in connection with Executive’s duties to the Company or its Subsidiaries or (E) a Restrictive Covenant Violation that is not cured (to the extent curable) for a period of 10 days following written notice by the Company or the General Partner of the Company to Executive of such breach.

1.6 Change of Control . The term “Change of Control” shall have the meaning set forth in the LP Agreement.

1.7 Closing . The term “Closing” shall have the meaning set forth in Section 2.2.

1.8 Closing Date . The term “Closing Date” shall have the meaning set forth in Section 2.2.

1.9 Company . The term “Company” shall have the meaning set forth in the preface.

1.10 Employee and Employment . The term “employee” shall mean, without any inference as to negate Executive’s status as a member of the Company for all purposes hereunder (subject to the terms hereof) and for federal and other tax purposes, any employee (as defined in accordance with the regulations and revenue rulings then applicable under Section 3401(c) of the Internal Revenue Code of 1986, as amended) of the Company or any of its Subsidiaries, and the term “employment” shall include service as a part- or full-time employee or board member to the General Partner of the Company, the Company or any of the Company’s Subsidiaries.

1.11 Equivalent Securities . The term “Equivalent Securities” shall have the meaning set forth in Section 4(c).

1.12 Executive . The term “Executive” shall have the meaning set forth in the preface.

 

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1.13 Executive’s Group . The term “Executive’s Group” shall mean Executive and Executive’s Permitted Transferees.

1.14 Interests . The term “Interests” shall have the meaning set forth in the preface.

1.15 LP Agreement . The term “LP Agreement” shall mean the Third Amended and Restated Limited Partnership Agreement of Summit Materials Holdings L.P., dated December 23, 2013, as amended, restated, supplemented or modified, from time to time.

1.16 Management Investors . The term “Management Investors” shall have the meaning set forth in the preface.

1.17 Permitted Transferee . The term “Permitted Transferee” means any Person to whom Executive transfers Interests in accordance with the LP Agreement (other than the Sponsor and the Company and their respective Affiliates and except for transfers pursuant to a Public Offering).

1.18 Person . The term “Person” shall mean any individual, corporation, partnership, limited liability company, trust, joint stock company, business trust, unincorporated association, joint venture, governmental authority or other entity of any nature whatsoever.

1.19 Public Offering . The term “Public Offering” shall have the meaning set forth in the LP Agreement.

1.20 Restrictive Covenant Violation . The term “Restrictive Covenant Violation” shall mean Executive’s breach, in a material respect, of any section in Appendix A hereto.

1.21 Securities Act . The term “Securities Act” shall mean the Securities Act of 1933, as amended, and all rules and regulations promulgated thereunder, as the same may be amended from time to time.

1.22 Sponsor . The term “Sponsor” means Blackstone.

1.23 Subsidiary . The term “Subsidiary” means any corporation, limited liability company, partnership or other entity with respect to which another specified entity has the power to vote or direct the voting of sufficient securities to elect directors (or comparable authorized persons of such entity) having a majority of the voting power of the board of directors (or comparable governing body) of such entity.

 

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1.24 Termination Date . The term “Termination Date” means the date upon which Executive’s Employment with the Company and its Subsidiaries is terminated.

1.25 Unvested Interests . The term “Unvested Interests” means, with respect to Executive’s Interests granted hereunder, the number of such Interests that are not “Vested Interests”.

1.26 Vested Interests . The term “Vested Interests” shall mean, with respect to Executive’s Interests granted hereunder, the number of such Interests that are vested and nonforfeitable, as determined in accordance with Schedule I-B and Schedule I-C attached hereto.

1.27 Vesting Start Date . The term “Vesting Start Date” shall have the meaning set forth in the signature page.

2. Subscription for and Grant of Interests.

2.1 Grant of Interests . Pursuant to the terms and subject to the conditions set forth in this Agreement, Executive hereby subscribes for and agrees to acquire, and the Company hereby agrees to issue and award to Executive on the Closing Date, the number and classes of Interests set forth on Schedule I-A attached hereto in exchange for services performed for the Company and its Subsidiaries by Executive. Notwithstanding anything to the contrary in the LP Agreement, all distributions in respect of the Interests shall be payable solely out of profits of the Company arising after the Closing Date.

2.2 The Closing . The closing (the “Closing”) of the grant of Interests hereunder shall take place on the closing date specified on the signature page hereto. The date of the Closing shall be the “Closing Date.”

2.3 Section 83(b) Election . Executive shall comply with Section 5.3(b) of the LP Agreement regarding the making of an election under Section 83(b) of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder in the form of Exhibit A attached hereto. Executive should consult Executive’s tax advisor regarding the consequences of a Section 83(b) election, as well as the receipt, vesting, holding and sale of Interests.

 

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2.4 Closing Conditions . Notwithstanding anything in this Agreement to the contrary, the Company shall be under no obligation to issue or grant to Executive any Interests unless (i) Executive is an employee of, or consultant to, the Company or one of its Subsidiaries on the Closing Date; (ii) the representations of Executive contained in Section 3 hereof are true and correct in all material respects as of the Closing Date and (iii) Executive is not in breach of any agreement, obligation or covenant herein required to be performed or observed by Executive on or prior to the Closing Date.

3. Investment Representations and Covenants of Executive .

3.1 Interests Unregistered . Executive acknowledges and represents that Executive has been advised by the Company that:

(a) the offer and sale of the Interests have not been registered under the Securities Act;

(b) the Interests must be held indefinitely and Executive must continue to bear the economic risk of the investment in the Interests unless the offer and sale of such Interests are subsequently registered under the Securities Act and all applicable state securities laws or an exemption from such registration is available (or as otherwise provided in the LP Agreement);

(c) there is no established market for the Interests and it is not anticipated that there will be any public market for the Interests in the foreseeable future;

(d) a restrictive legend in the form set forth in Section 3.1 of the LP Agreement shall be placed on the certificates, if any, representing the Interests; and

(e) a notation shall be made in the appropriate records of the Company indicating that the Interests are subject to restrictions on transfer and, if the Company should at some time in the future engage the services of a securities transfer agent, appropriate stop-transfer instructions will be issued to such transfer agent with respect to the Interests.

3.2 Additional Investment Representations . Executive represents and warrants that:

(a) Executive’s financial situation is such that Executive can afford to bear the economic risk of holding the Interests for an indefinite period of time, has adequate means for providing for Executive’s current needs and personal contingencies, and can afford to suffer a complete loss of Executive’s investment in the Interests;

 

5


(b) Executive’s knowledge and experience in financial and business matters are such that Executive is capable of evaluating the merits and risks of the investment in the Interests;

(c) Executive understands that the Interests are a speculative investment which involves a high degree of risk of loss of Executive’s investment therein, there are substantial restrictions on the transferability of the Interests and, on the Closing Date and for an indefinite period following the Closing, there will be no public market for the Interests and, accordingly, it may not be possible for Executive to liquidate Executive’s investment in case of emergency, if at all;

(d) Executive understands and has taken cognizance of all the risk factors related to the purchase of the Interests and, other than as set forth in this Agreement, no representations or warranties have been made to Executive or Executive’s representatives concerning the Interests or the Company or their prospects or other matters;

(e) Executive has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company and its representatives concerning the Company and its Subsidiaries, the LP Agreement, the Company’s organizational documents and the terms and conditions of the purchase of the Interests and to obtain any additional information which Executive deems necessary;

(f) all information which Executive has provided to the Company and the Company’s representatives concerning Executive and Executive’s financial position is complete and correct as of the date of this Agreement; and

(g) Executive is or is not an “accredited investor” within the meaning of Rule 501(a) under the Securities Act, as indicated on the signature page hereto.

3.3 Other Representations . Executive acknowledges that Blackstone and its Affiliates may, from time to time, provide services to the Company and its Affiliates for which a fee will be paid by the Company or its Affiliates, including an annual monitoring/advisory fee.

4. Restrictive Covenant Violation; Termination of Employment .

(a) Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its Affiliates and accordingly agrees, in his capacity as an investor and equityholder in the Company and its Affiliates, to the provisions of Appendix A to this Agreement. Executive acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the

 

6


provisions of Appendix A would be inadequate and the Company would suffer irreparable damages as a result of such breach or threatened breach. In recognition of this fact, Executive agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required by this Agreement, the LP Agreement or any other agreement between the Company and its Affiliates, on the one hand, and Executive and Executive’s Affiliates, on the other, and obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or other equitable remedy which may then be available.

(b) Any Time-Vesting Interests (as defined in Schedule I-B) that are Unvested Interests on a Termination Date shall be immediately forfeited by Executive. Except as provided in Schedule I-B, any MOIC-Vesting Interests (as defined in Schedule I-C) that are Unvested Interests shall be immediately forfeited by Executive on the earlier to occur of (i) the Termination Date and (ii) the eighth anniversary of the Vesting Start Date.

(c) In the event that (i) Executive’s Employment is terminated by the Company with Cause, (ii) a Restrictive Covenant Violation occurs during or after Executive’s Employment that is not cured by Executive within ten (10) days of receiving written notice from the Company or the General Partner of the Company or (iii) the Board determines in good faith after a termination of Employment that grounds existed for Cause at the time thereof, then (x) any Vested Interests or Unvested Interests (and any interests or other equity or other securities that Executive or Executive’s Group hold or own that were received in exchange for or upon conversion of the Interests, including the “Termination Amount” and a “Class D Note” (each as defined in the LP Agreement (“ Equivalent Securities ”))) shall immediately be forfeited without any consideration therefor, (y) Executive and Executive’s Group shall be required, jointly and severally, to pay to the Company, within 10 business days’ of the Company’s request therefor, an amount equal to the aggregate after-tax proceeds (taking into account all amounts of tax that would be recoverable upon a claim of loss for payment of such proceeds in the year of repayment or otherwise) Executive and/or Executive’s Group received upon the sale or other disposition of, or distributions in respect of, the Interests and/or Equivalent Securities and (z) any such Class D Note shall be cancelled without consideration therefor.

 

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5. Miscellaneous .

5.1 Transfers . Prior to the transfer of Interests to a Permitted Transferee, Executive shall deliver to the Company a written agreement of the proposed transfer (a) evidencing such Person’s undertaking to be bound by the terms of this Agreement and (b) acknowledging that the Interests transferred to such Person will continue to be Interests for purposes of this Agreement in the hands of such Person. Any transfer or attempted transfer of Interests in violation of any provision of this Agreement or the LP Agreement shall be void, and the Company shall not record such transfer on its books or treat any purported transferee of such Interests as the owner of such Interests for any purpose.

5.2 Recapitalizations, Exchanges, Etc., Affecting Interests . The provisions of this Agreement shall apply, to the full extent set forth herein with respect to the Interests, to any and all securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for, or in substitution of the Interests, by reason of any dividend payable in Interests, issuance of Interests, combination, recapitalization, reclassification, merger, consolidation or otherwise. Subject to the terms of the LP Agreement, the Company shall have the authority, in its sole discretion, to modify or adjust the terms or number of Interests on an equitable basis in light of any acquisitions, divestitures, mergers, sales of assets and/or similar events.

5.3 Executive’s Employment by the Company . Nothing contained in this Agreement shall be deemed to obligate the Company or any Subsidiary of the Company to employ Executive in any capacity whatsoever or to prohibit or restrict the Company (or any such Subsidiary) from terminating the Employment of Executive at any time or for any reason whatsoever, with or without Cause.

5.4 Cooperation . Executive agrees to cooperate with the Company in taking action reasonably necessary to consummate the transactions contemplated by this Agreement.

5.5 Binding Effect . The provisions of this Agreement shall be binding upon and accrue to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns; provided, however, that no Permitted Transferee shall derive any rights under this Agreement unless and until such Permitted Transferee has executed and delivered to the Company a valid undertaking and becomes bound by the terms of this Agreement; and provided further that the Sponsor is a third party beneficiary of this Agreement and shall have the right to enforce the provisions hereof.

5.6 Amendment; Waiver . This Agreement may be amended only by a written instrument signed by the parties hereto. No waiver by any party hereto of any of the provisions hereof shall be effective unless set forth in a writing executed by the party so waiving.

 

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5.7 Governing Law; Jurisdiction . This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. Any suit, action or proceeding with respect to this Agreement, or any judgment entered by any court in respect of any thereof, shall be brought in any court of competent jurisdiction specified in the LP Agreement. Each of the members of Executive’s Group and the Company hereby irrevocably waives (i) any objections which it may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in any jurisdiction specified in the LP Agreement, (ii) any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum and (iii) any right to a jury trial.

5.8 Notices . All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three postal delivery days after it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below in this Agreement, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt.

If to the Company:

Summit Materials Holdings L.P.

1550 Wynkoop Street, 3rd Floor

Denver, Colorado 80202

Attention: General Counsel

with a copy (which shall not constitute notice) to:

Silverhawk Capital Partners

4725 Piedmont Row Drive, Suite 420

Charlotte, NC 28210

Attention: Ted Gardner

with a copy (which shall not constitute notice) to:

The Blackstone Group L.P.

345 Park Avenue

New York, NY 10154

Attention: Neil P. Simpkins

 

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and

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, NY 10017-3954

Attention: Gregory T. Grogan

If to Executive:

To the most recent address of Executive set forth in the personnel records of the Company.

5.9 Integration . This Agreement and the documents referred to herein or delivered pursuant hereto which form a part hereof contain the entire understanding of the parties with respect to the subject matter hereof and thereof. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein and therein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.

5.10 Counterparts . This Agreement may be executed in separate counterparts, and by different parties on separate counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

5.11 Injunctive Relief . Executive and Executive’s Permitted Transferees each acknowledges and agrees that a violation of any of the terms of this Agreement will cause the Company irreparable injury for which adequate remedy at law is not available. Accordingly, it is agreed that the Company shall be entitled to an injunction, restraining order or other equitable relief to prevent breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof in any court of competent jurisdiction in the United States or any state thereof, in addition to any other remedy to which it may be entitled at law or equity.

5.12 Rights Cumulative; Waiver . The rights and remedies of Executive and the Company under this Agreement shall be cumulative and not exclusive of any rights or remedies which either would otherwise have hereunder or at law or in equity or by statute, and no failure or delay by either party in exercising any right or remedy shall impair any such right or remedy or operate as a waiver of such right or remedy, nor shall any single or partial exercise of any power or

 

10


right preclude such party’s other or further exercise or the exercise of any other power or right. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by either party to exercise any right or privilege hereunder shall be deemed a waiver of such party’s rights or privileges hereunder or shall be deemed a waiver of such party’s rights to exercise the same at any subsequent time or times hereunder.

*     *     *     *     *

 

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IN WITNESS WHEREOF:

 

Executive:
   
Name:
Address:
Please check the appropriate box:

¨       Executive is an “accredited investor” within the meaning of Rule 501(a) under the Securities Act of 1933, as amended.

¨       Executive is not an “accredited investor” within the meaning of Rule 501(a) under the Securities Act of 1933, as amended.

Date of Agreement:

Closing Date:

Vesting Start Date:

[SIGNATURE PAGE TO SUBSCRIPTION AGREEMENT]


SUMMIT MATERIALS HOLDINGS L.P.
By: Summit Materials Holdings GP, Ltd., its General Partner
By:    
  Name:
  Title:

[SIGNATURE PAGE TO SUBSCRIPTION AGREEMENT]


SCHEDULE I-A

Number of Interests

 

Class of Interests

   Number of Interests

Class D-1 U.S. Interests

  

Class D-1 Non-U.S. Interests

  

Class D-2 U.S. Interests

  

Class D-2 Non-U.S. Interests

  

 

E-1


SCHEDULE I-B

Time-Vesting Interests

With regard to 50% of the Class D-1 U.S. Interests and/or Class D-1 Non-U.S. Interests granted hereunder (the “ Time-Vesting Interests ”), the percentage of such Time-Vesting Interests that will be Vested Interests in respect of a Termination Date occurring:

 

   

prior to the first anniversary of the Vesting Start Date, 0%;

 

   

so long as a Termination Date has not occurred prior to the first anniversary of the Vesting Start Date, on the first anniversary of the Vesting Start Date, 20%; and

 

   

thereafter, so long as a Termination Date has not occurred, an additional 1.667% on the last day of each month (such that the Time-Vesting Interests will be fully vested on the fifth anniversary of the Vesting Start Date).

Notwithstanding the foregoing, immediately prior to, and following, the occurrence of a Change of Control that occurs prior to the Termination Date, 100% of the Time-Vesting Interests that are Unvested Interests shall become Vested Interests.

Any Time-Vesting Interests that are Unvested Interests on a Termination Date shall be immediately forfeited by Executive.


SCHEDULE I-C

MOIC-Vesting Interests

1. Classifying Interests: 1.75X and 3.0X . Any Class D-1 U.S. Interests and/or Class D-1 Non-U.S. Interests granted hereunder that are not Time-Vesting Interests (the “ 1.75X MOIC-Vesting Interests ”) and all Class D-2 U.S. Interests and/or Class D-2 Non-U.S. Interests (the “ 3.0X MOIC-Vesting Interests ”, together with the 1.75X MOIC-Vesting Interests, the “ MOIC-Vesting Interests ”) granted hereunder will initially be Unvested Interests.

2. 1.75X MOIC-Vesting Terms . At any time that, and for so long as, the Sponsor shall have received aggregate cash proceeds and/or has distributed to its limited partners marketable securities (in each case, not subject to any clawback, indemnity or similar contractual obligation) in respect of its Class A-1 Interests in the Company equal to, or in the case of marketable securities having a Fair Market Value equal to, at least 175% of its aggregate Capital Contributions (as defined in the LP Agreement) in respect of such Class A-1 Interests (the “ 1.75X Hurdle ”), then all of the 1.75X MOIC-Vesting Interests shall become Vested Interests; provided that, subject to paragraph 4. below, no 1.75X MOIC-Vesting Interests shall become Vested Interests after the first to occur of (i) the Termination Date and (ii) the eighth anniversary of the Vesting Start Date.

3. 3.0X MOIC-Vesting Terms . At any time that, and for so long as, the Sponsor shall have received aggregate cash proceeds and/or has distributed to its limited partners marketable securities (in each case, not subject to any clawback, indemnity or similar contractual obligation) in respect of its Class A-1 Interests in the Company equal to, or in the case of marketable securities having a Fair Market Value equal to, at least 300% of its aggregate Capital Contributions in respect of such Class A-1 Interests (the “ 3.0X Hurdle ”), then all of the 3.0X MOIC-Vesting Interests shall become Vested Interests; provided that, subject to paragraph 4. below, no 3.0X MOIC-Vesting Interests shall become Vested Interests after the first to occur of (i) the Termination Date and (ii) the eighth anniversary of the Vesting Start Date.

4. Forfeiture upon Termination . Any MOIC-Vesting Interests that are Unvested Interests shall be immediately forfeited by Executive on the earlier to occur of (i) the Termination Date and (ii) the eighth anniversary of the Vesting Start Date; provided , however , that in the event a transaction closes before the Termination Date or the eighth anniversary of the Vesting Start Date and a portion of the proceeds are subject to any clawback, indemnity or similar obligation, then the MOIC-Vesting Interests that are Unvested Interests shall remain subject to additional vesting following such date until the effect of any clawback, indemnity or similar contractual obligation is finally determined (and shall vest at the time of such final determination if the relevant hurdle is met); provided , further , that if Executive is terminated without Cause or if Executive has entered into a written employment agreement with the Company that includes a definition of “good reason” or “constructive termination,” if Executive resigns for “good reason” or “constructive termination” (as defined in such written employment agreement) within twelve (12) months preceding a Change of Control or a Public Offering, any MOIC-Vesting Interests that would have vested in connection with such Change of Control or Public Offering shall be restored and shall be eligible to vest based on the terms hereof.


Appendix A

Restrictive Covenants

1. Confidentiality; Non-Compete; Non-Solicit; Non-Disparagement .

(a) For the purposes of this Appendix A, any reference to the “Company” shall mean the Company and its Subsidiaries and Affiliates, collectively. In view of the fact that Executive’s work for the Company brings Executive into close contact with many confidential affairs of the Company not readily available to the public, and plans for further developments, Executive agrees:

(i) Executive will not at any time (whether during or after Executive’s Employment with the Company) (x) retain or use for the benefit, purposes or account of Executive or any other Person; or (y) disclose, divulge, reveal, communicate, share, transfer or provide access to any Person outside the Company (other than its professional advisers who are bound by confidentiality obligations), any non-public, proprietary or confidential information – including without limitation trade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors, personnel, compensation, recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals – concerning the past, current or future business, activities and operations of the Company, its Subsidiaries or Affiliates and/or any third party that has disclosed or provided any of same to the Company on a confidential basis (“ Confidential Information ”) without the prior written authorization of the Board, except as specifically necessary during the term of Executive’s Employment in order to perform the duties of his or her position and in the best interests of the Company.

(ii) “Confidential Information” shall not include any information that is (a) generally known to the industry or the public other than as a result of Executive’s breach of this covenant or any breach of other confidentiality obligations by third parties; (b) made legitimately available to Executive by a third party without breach of any confidentiality obligation; or (c) required by law to be disclosed; provided that Executive shall give prompt written notice to the Company of such requirement, disclose no more information than is so required, and cooperate with any attempts by the Company to obtain a protective order or similar treatment.

(iii) Except as required by law, Executive will not disclose to anyone, other than Executive’s immediate family and legal or financial advisors, the existence or contents of this Agreement; provided that Executive may disclose to any prospective future employer the provisions of Section (b) of this Appendix provided they agree to maintain the confidentiality of such terms.


(iv) Upon termination of Executive’s Employment with the Company for any reason, Executive shall (x) cease and not thereafter commence use of any Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade name, logo, domain name or other source indicator) owned or used by the Company, its Subsidiaries or Affiliates; (y) immediately destroy, delete, or return to the Company, at the Company’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters and other data) in Executive’s possession or control (including any of the foregoing stored or located in Executive’s office, home, laptop or other computer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of the Company, its Affiliates and Subsidiaries, except that Executive may retain only those portions of any personal notes, notebooks and diaries that do not contain any Confidential Information; and (z) notify and fully cooperate with the Company regarding the delivery or destruction of any other Confidential Information of which Executive is or becomes aware.

(b) Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its Affiliates and accordingly agrees as follows:

(i) Executive will not, within twelve months following the termination of Executive’s Employment with the Company or such shorter time as provided in Section 1(b)(iv) (the “ Post-Termination Period ”) or during Executive’s Employment (collectively with the Post-Termination Period, the “ Restricted Period ”):

(A) engage in any business involved, either directly or indirectly, in (x) the acquisition of companies primarily engaged in the U.S. and Canadian aggregates and related downstream product sectors (including, but not limited to, asphalt, paving, cement, concrete and concrete products) (any such company, a “ Business ”) or (y) the operation of any Business (any such business as described in subclauses (x) or (y), a “ Competitive Business ”).

(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;

(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or

(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between the Company or any of its Affiliates and customers, clients, suppliers, partners, members, investors or acquisition targets.

(ii) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:

(A) solicit or encourage any employee of the Company or its Affiliates to leave the Employment of the Company or its Affiliates; or


(B) hire any such employee who was employed by the Company or its Affiliates as of the date of Executive’s termination of Employment with the Company or who left the Employment of the Company or its Affiliates coincident with, or within one year prior to or after, the termination of Executive’s Employment with the Company.

(iii) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly solicit or assist in soliciting in competition with the Company, the business of any client or prospective client:

(A) with whom Executive had personal contact or dealings on behalf of the Company during the one-year period preceding Executive’s termination of Employment;

(B) with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company during the one year immediately preceding Executive’s termination of Employment; or

(C) for whom Executive had direct or indirect responsibility during the one year immediately preceding Executive’s termination of Employment.

(iv) If total equity investments by the Company are less than $200 million, there is a proposed dissolution of the Company pursuant to the terms of the LP Agreement (a “ Dissolution ”), and Executive is not terminated for Cause and does not resign other than due to a Constructive Termination (as defined in Executive’s employment agreement with the Company) before the Dissolution is completed (or such earlier time as determined by the Company), (a) the Restricted Period shall be twelve months following termination of employment with the Company, and (b) the term Competitive Business for purposes hereof shall be limited to operations within one hundred (100) miles of a Company facility.

Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person which are publicly traded on a national or regional stock exchange or on the over-the-counter market if Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.

(c) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with the Company or its Affiliates any consultant then under contract with the Company or its Affiliates.

(d) Executive will not, other than as required by law or by order of a court or other competent authority, make or publish, or cause any other person to make or publish, any statement that is disparaging or that reflects negatively upon the Company or its Affiliates, or that is or reasonably would be expected to be damaging to the reputation of the Company or its Affiliates.


(e) It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Appendix A to be reasonable, if a final judicial determination is made by a court of competent jurisdiction, that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.

(f) The period of time during which the provisions of this Appendix A shall be in effect shall be extended by the length of time during which Executive is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.

2. Specific Performance; Survival .

(a) Executive acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of this Appendix A would be inadequate and the Company would suffer irreparable damages as a result of such breach or threatened breach. In recognition of this fact, Executive agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, shall be entitled to suspend making any payments or providing any benefit otherwise required by this Agreement and obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available.

(b) The provisions of this Appendix A shall survive the termination of Executive’s Employment for any reason.


Exhibit A

SECTION 83(b) ELECTION FORM

ELECTION TO INCLUDE INTERESTS IN GROSS

INCOME PURSUANT TO SECTION 83(b) OF THE

INTERNAL REVENUE CODE

The undersigned acquired equity interests (the “ Interests ”) of Summit Materials Holdings L.P. (the “ Partnership ”) on                     , (the “ Acquisition Date ”). The undersigned desires to make an election to have the Interests taxed under the provision of Section 83(b) of the Internal Revenue Code of 1986, as amended (“ Code §83(b) ”), at the time the undersigned acquired the Interests.

Therefore, pursuant to Code §83(b) and Treasury Regulation §1.83-2 promulgated thereunder, the undersigned hereby makes an election, with respect to the Interests (described below), to report as taxable income for calendar year                     the excess, if any, of the Interests’ fair market value on the Acquisition Date over the acquisition price thereof.

The following information is supplied in accordance with Treasury Regulation §1.83-2(e):

1. The name, address and social security number of the undersigned:

Taxpayer’s Name:

Taxpayer’s Social Security Number:

Taxpayer’s Address:

Taxable Year:

A description of the property with respect to which the election is being made:

The date on which the property was transferred: the Acquisition Date. The taxable year for which such election is made:                     .

The restrictions to which the property is subject: If the undersigned ceases to be employed by the Partnership or any of its subsidiaries under certain circumstances, all or a portion of the Interests may be subject to repurchase by the Partnership at the lower of the fair market value of such Interests and the original acquisition price paid for the Interests, regardless of the fair market value of the Interests on the date of such repurchase. The Interests are also subject to transfer restrictions and potential forfeiture.

The aggregate fair market value (on a liquidation basis) on the Acquisition Date of the property with respect to which the election is being made, determined without regard to any lapse restrictions: $0

The aggregate amount paid for such property: $0

A copy of this election has been furnished to the Secretary of the Partnership pursuant to Treasury Regulations §1.83-2(e)(7).

 

Dated:                       

 

  Name:

Exhibit 10.9

MANAGEMENT INTEREST SUBSCRIPTION AGREEMENT

(Profits Interest Grant)

THIS MANAGEMENT INTEREST SUBSCRIPTION AGREEMENT (this “ Agreement ”) by and between Summit Materials Holdings L.P., a Delaware limited partnership (the “ Company ”), and the individual named on the signature page hereto (“ Executive ”) is made as of the date set forth on the signature page hereto.

WHEREAS, on the terms and subject to the conditions hereof, Executive desires to subscribe for and acquire from the Company, and the Company desires to issue and provide to Executive, the Company’s Class D-1 U.S. Interests, Company’s Class D-1 Non-U.S. Interests, Company’s Class D-2 U.S. Interests and/or Class D-2 Non-U.S. Interests (the “ Interests ”), in each case in the amount set forth on Schedule I-A attached hereto, as hereinafter set forth; and

WHEREAS, this Agreement is one of several agreements being entered into by the Company or its Subsidiaries with certain persons who are or will be key employees or advisors of the Company or one or more Affiliates (collectively with Executive, the “ Management Investors ”) as part of a management equity purchase plan designed to comply with Regulation D or Rule 701, as applicable, promulgated under the Securities Act (as defined below).

NOW, THEREFORE, in order to implement the foregoing and in consideration of the mutual representations, warranties, covenants and agreements contained herein, the parties hereto agree as follows:

1. Definitions .

1.1 Affiliate . An “Affiliate” of, or Person “Affiliated” with, a specified Person shall mean a Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified.

1.2 Agreement . The term “Agreement” shall have the meaning set forth in the preface.

1.3 Blackstone . The term “Blackstone” shall have the meaning set forth in the LP Agreement.

1.4 Board . The “Board” shall mean the Board of Directors of the General Partner of the Company.

1.5 Cause . The term “Cause” shall mean that the Board, based on information then known to the Company or the General Partner of the Company, determines in good faith (A) Executive’s willful or grossly negligent continued failure to substantially perform Executive’s material duties to the Company or its Subsidiaries (other than as a result of total or partial incapacity due to physical or mental illness) for a period of 10 days following written notice by the Company or the General Partner of the Company to Executive of such failure, (B) dishonesty in the performance of Executive’s material duties to the Company or its Subsidiaries, (C) an act or acts on Executive’s part constituting, or plea of guilty or nolo contendere to a crime constituting, (x) a felony under the laws of the United States or any state thereof or (y) a

 

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misdemeanor involving moral turpitude, (D) Executive’s willful malfeasance or willful misconduct in connection with Executive’s duties to the Company or its Subsidiaries or (E) a Restrictive Covenant Violation that is not cured (to the extent curable) for a period of 10 days following written notice by the Company or the General Partner of the Company to Executive of such breach.

1.6 Change of Control . The term “Change of Control” shall have the meaning set forth in the LP Agreement.

1.7 Closing . The term “Closing” shall have the meaning set forth in Section 2.2.

1.8 Closing Date . The term “Closing Date” shall have the meaning set forth in Section 2.2.

1.9 Company . The term “Company” shall have the meaning set forth in the preface.

1.10 Employee and Employment . The term “employee” shall mean, without any inference as to negate Executive’s status as a member of the Company for all purposes hereunder (subject to the terms hereof) and for federal and other tax purposes, any employee (as defined in accordance with the regulations and revenue rulings then applicable under Section 3401(c) of the Internal Revenue Code of 1986, as amended) of the Company or any of its Subsidiaries, consultant to, or non-employee director of the General Partner of the Company, the Company or any of the Company’s Subsidiaries, and the term “employment” shall include service as a part-or full-time employee, consultant or board member to the General Partner of the Company, the Company or any of the Company’s Subsidiaries.

1.11 Equivalent Securities . The term “Equivalent Securities” shall have the meaning set forth in Section 4(c).

1.12 Executive . The term “Executive” shall have the meaning set forth in the preface.

1.13 Executive’s Group . The term “Executive’s Group” shall mean Executive and Executive’s Permitted Transferees.

1.14 Interests . The term “Interests” shall have the meaning set forth in the preface.

1.15 LP Agreement . The term “LP Agreement” shall mean the Third Amended and Restated Limited Partnership Agreement of Summit Materials Holdings L.P., dated December 23, 2013, as amended, restated, supplemented or modified, from time to time.

1.16 Management Investors . The term “Management Investors” shall have the meaning set forth in the preface.

1.17 Permitted Transferee . The term “Permitted Transferee” means any Person to whom Executive transfers Interests in accordance with the LP Agreement (other than the Sponsor and the Company and their respective Affiliates and except for transfers pursuant to a Public Offering).

 

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1.18 Person . The term “Person” shall mean any individual, corporation, partnership, limited liability company, trust, joint stock company, business trust, unincorporated association, joint venture, governmental authority or other entity of any nature whatsoever.

1.19 Public Offering . The term “Public Offering” shall have the meaning set forth in the LP Agreement.

1.20 Restrictive Covenant Violation . The term “Restrictive Covenant Violation” shall mean Executive’s breach, in a material respect, of any section in Appendix A hereto.

1.21 Securities Act . The term “Securities Act” shall mean the Securities Act of 1933, as amended, and all rules and regulations promulgated thereunder, as the same may be amended from time to time.

1.22 Sponsor . The term “Sponsor” means Blackstone.

1.23 Subsidiary . The term “Subsidiary” means any corporation, limited liability company, partnership or other entity with respect to which another specified entity has the power to vote or direct the voting of sufficient securities to elect directors (or comparable authorized persons of such entity) having a majority of the voting power of the board of directors (or comparable governing body) of such entity.

1.24 Termination Date . The term “Termination Date” means the date upon which Executive’s Employment with the Company and its Subsidiaries is terminated.

1.25 Unvested Interests . The term “Unvested Interests” means, with respect to Executive’s Interests granted hereunder, the number of such Interests that are not “Vested Interests”.

1.26 Vested Interests . The term “Vested Interests” shall mean, with respect to Executive’s Interests granted hereunder, the number of such Interests that are vested and nonforfeitable, as determined in accordance with Schedule I-B attached hereto.

2. Subscription for and Grant of Interests .

2.1 Grant of Interests . Pursuant to the terms and subject to the conditions set forth in this Agreement, Executive hereby subscribes for and agrees to acquire, and the Company hereby agrees to issue and award to Executive on the Closing Date, the number and classes of Interests set forth on Schedule I-A attached hereto in exchange for services performed for the Company and its Subsidiaries by Executive. Notwithstanding anything to the contrary in the LP Agreement, all distributions in respect of the Interests shall be payable solely out of profits of the Company arising after the Closing Date.

2.2 The Closing . The closing (the “ Closing ”) of the grant of Interests hereunder shall take place on the closing date specified on the signature page hereto. The date of the Closing shall be the “ Closing Date .”

 

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2.3 Section 83(b) Election . Executive shall comply with Section 5.3(b) of the LP Agreement regarding the making of an election under Section 83(b) of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder in the form of Exhibit E to the LP Agreement. Executive should consult Executive’s tax advisor regarding the consequences of a Section 83(b) election, as well as the receipt, vesting, holding and sale of Interests.

2.4 Closing Conditions . Notwithstanding anything in this Agreement to the contrary, the Company shall be under no obligation to issue or grant to Executive any Interests unless (i) Executive is an employee of, or consultant to, the Company or one of its Subsidiaries on the Closing Date; (ii) the representations of Executive contained in Section 3 hereof are true and correct in all material respects as of the Closing Date and (iii) Executive is not in breach of any agreement, obligation or covenant herein required to be performed or observed by Executive on or prior to the Closing Date.

3. Investment Representations and Covenants of Executive .

3.1 Interests Unregistered . Executive acknowledges and represents that Executive has been advised by the Company that:

(a) the offer and sale of the Interests have not been registered under the Securities Act;

(b) the Interests must be held indefinitely and Executive must continue to bear the economic risk of the investment in the Interests unless the offer and sale of such Interests are subsequently registered under the Securities Act and all applicable state securities laws or an exemption from such registration is available (or as otherwise provided in the LP Agreement);

(c) there is no established market for the Interests and it is not anticipated that there will be any public market for the Interests in the foreseeable future;

(d) a restrictive legend in the form set forth in Section 3.1 of the LP Agreement shall be placed on the certificates, if any, representing the Interests; and

(e) a notation shall be made in the appropriate records of the Company indicating that the Interests are subject to restrictions on transfer and, if the Company should at some time in the future engage the services of a securities transfer agent, appropriate stop-transfer instructions will be issued to such transfer agent with respect to the Interests.

3.2 Additional Investment Representations . Executive represents and warrants that:

(a) Executive’s financial situation is such that Executive can afford to bear the economic risk of holding the Interests for an indefinite period of time, has adequate means for providing for Executive’s current needs and personal contingencies, and can afford to suffer a complete loss of Executive’s investment in the Interests;

 

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(b) Executive’s knowledge and experience in financial and business matters are such that Executive is capable of evaluating the merits and risks of the investment in the Interests;

(c) Executive understands that the Interests are a speculative investment which involves a high degree of risk of loss of Executive’s investment therein, there are substantial restrictions on the transferability of the Interests and, on the Closing Date and for an indefinite period following the Closing, there will be no public market for the Interests and, accordingly, it may not be possible for Executive to liquidate Executive’s investment in case of emergency, if at all;

(d) Executive understands and has taken cognizance of all the risk factors related to the purchase of the Interests and, other than as set forth in this Agreement, no representations or warranties have been made to Executive or Executive’s representatives concerning the Interests or the Company or their prospects or other matters;

(e) Executive has been given the opportunity to examine all documents and to ask questions of, and to receive answers from, the Company and its representatives concerning the Company and its Subsidiaries, the LP Agreement, the Company’s organizational documents and the terms and conditions of the purchase of the Interests and to obtain any additional information which Executive deems necessary;

(f) all information which Executive has provided to the Company and the Company’s representatives concerning Executive and Executive’s financial position is complete and correct as of the date of this Agreement; and

(g) Executive is an “accredited investor” within the meaning of Rule 501(a) under the Securities Act.

3.3 Other Representations . Executive acknowledges that Blackstone and its Affiliates may, from time to time, provide services to the Company and its Affiliates for which a fee will be paid by the Company or its Affiliates, including an annual monitoring/advisory fee.

4. Restrictive Covenant Violation; Termination of Employment.

(a) Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its Affiliates and accordingly agrees, in his capacity as an investor and equityholder in the Company and its Affiliates, to the provisions of Appendix A to this Agreement. Executive acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of Appendix A would be inadequate and the Company would suffer irreparable damages as a result of such breach or threatened breach. In recognition of this fact, Executive agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required by this Agreement, the LP Agreement or any other agreement between the Company and its Affiliates, on the one hand, and Executive and Executive’s Affiliates, on the other, and obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or other equitable remedy which may then be available.

 

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(b) Any Time-Vesting Interests (as defined in Schedule I-B) that are Unvested Interests on a Termination Date shall be immediately forfeited by Executive.

(c) In the event that (i) Executive’s Employment is terminated by the Company with Cause, (ii) a Restrictive Covenant Violation occurs during or after Executive’s Employment that is not cured by Executive within ten (10) days of receiving written notice from the Company or the General Partner of the Company or (iii) the Board determines in good faith after a termination of Employment that grounds existed for Cause at the time thereof, then (x) any Vested Interests or Unvested Interests (and any interests or other equity or other securities that Executive or Executive’s Group hold or own that were received in exchange for or upon conversion of the Interests, including the “Termination Amount” and a “Class D Note” (each as defined in the LP Agreement (“ Equivalent Securities ”))) shall immediately be forfeited without any consideration therefor, (y) Executive and Executive’s Group shall be required, jointly and severally, to pay to the Company, within 10 business days’ of the Company’s request therefor, an amount equal to the aggregate after-tax proceeds (taking into account all amounts of tax that would be recoverable upon a claim of loss for payment of such proceeds in the year of repayment or otherwise) Executive and/or Executive’s Group received upon the sale or other disposition of, or distributions in respect of, the Interests and/or Equivalent Securities and (z) any such Class D Note shall be cancelled without consideration therefor.

5. Miscellaneous.

5.1 Transfers . Prior to the transfer of Interests to a Permitted Transferee, Executive shall deliver to the Company a written agreement of the proposed transfer (a) evidencing such Person’s undertaking to be bound by the terms of this Agreement and (b) acknowledging that the Interests transferred to such Person will continue to be Interests for purposes of this Agreement in the hands of such Person. Any transfer or attempted transfer of Interests in violation of any provision of this Agreement or the LP Agreement shall be void, and the Company shall not record such transfer on its books or treat any purported transferee of such Interests as the owner of such Interests for any purpose.

5.2 Recapitalizations, Exchanges, Etc., Affecting Interests . The provisions of this Agreement shall apply, to the full extent set forth herein with respect to the Interests, to any and all securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in exchange for, or in substitution of the Interests, by reason of any dividend payable in Interests, issuance of Interests, combination, recapitalization, reclassification, merger, consolidation or otherwise. Subject to the terms of the LP Agreement, the Company shall have the authority, in its sole discretion, to modify or adjust the terms or number of Interests on an equitable basis in light of any acquisitions, divestitures, mergers, sales of assets and/or similar events.

5.3 Executive’s Employment by the Company . Nothing contained in this Agreement shall be deemed to obligate the Company or any Subsidiary of the Company to employ Executive in any capacity whatsoever or to prohibit or restrict the Company (or any such Subsidiary) from terminating the Employment of Executive at any time or for any reason whatsoever, with or without Cause.

 

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5.4 Cooperation . Executive agrees to cooperate with the Company in taking action reasonably necessary to consummate the transactions contemplated by this Agreement.

5.5 Binding Effect . The provisions of this Agreement shall be binding upon and accrue to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns; provided, however, that no Permitted Transferee shall derive any rights under this Agreement unless and until such Permitted Transferee has executed and delivered to the Company a valid undertaking and becomes bound by the terms of this Agreement; and provided further that the Sponsor is a third party beneficiary of this Agreement and shall have the right to enforce the provisions hereof.

5.6 Amendment; Waiver . This Agreement may be amended only by a written instrument signed by the parties hereto. No waiver by any party hereto of any of the provisions hereof shall be effective unless set forth in a writing executed by the party so waiving.

5.7 Governing Law; Jurisdiction . This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. Any suit, action or proceeding with respect to this Agreement, or any judgment entered by any court in respect of any thereof, shall be brought in any court of competent jurisdiction specified in the LP Agreement. Each of the members of Executive’s Group and the Company hereby irrevocably waives (i) any objections which it may now or hereafter have to the laying of the venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any court of competent jurisdiction in any jurisdiction specified in the LP Agreement, (ii) any claim that any such suit, action or proceeding brought in any such court has been brought in any inconvenient forum and (iii) any right to a jury trial.

5.8 Notices . All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three postal delivery days after it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below in this Agreement, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt.

If to the Company:

Summit Materials Holdings L.P.

1550 Wynkoop Street, 3rd Floor

Denver, CO 80202

Attention: General Counsel

with a copy (which shall not constitute notice) to:

Silverhawk Capital Partners

4725 Piedmont Row Drive, Suite 420

Charlotte, NC 28210

Attention: Ted Gardner

 

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with a copy (which shall not constitute notice) to:

The Blackstone Group L.P.

345 Park Avenue

New York, NY 10154

Attention: Neil P. Simpkins

and

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, NY 10017-3954

Attention: Gregory T. Grogan

If to Executive:

To the most recent address of Executive set forth in the personnel records of the Company.

5.9 Integration . This Agreement and the documents referred to herein or delivered pursuant hereto which form a part hereof contain the entire understanding of the parties with respect to the subject matter hereof and thereof. There are no restrictions, agreements, promises, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein and therein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.

5.10 Counterparts . This Agreement may be executed in separate counterparts, and by different parties on separate counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

5.11 Injunctive Relief . Executive and Executive’s Permitted Transferees each acknowledges and agrees that a violation of any of the terms of this Agreement will cause the Company irreparable injury for which adequate remedy at law is not available. Accordingly, it is agreed that the Company shall be entitled to an injunction, restraining order or other equitable relief to prevent breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof in any court of competent jurisdiction in the United States or any state thereof, in addition to any other remedy to which it may be entitled at law or equity.

5.12 Rights Cumulative; Waiver . The rights and remedies of Executive and the Company under this Agreement shall be cumulative and not exclusive of any rights or remedies which either would otherwise have hereunder or at law or in equity or by statute, and no failure or delay by either party in exercising any right or remedy shall impair any such right or remedy or operate as a waiver of such right or remedy, nor shall any single or partial exercise of any power or right preclude such party’s other or further exercise or the exercise of any other power or right. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by either party to exercise any right or privilege hereunder shall be deemed a waiver of such party’s rights or privileges hereunder or shall be deemed a waiver of such party’s rights to exercise the same at any subsequent time or times hereunder.

*    *    *    *    *

 

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IN WITNESS WHEREOF:

 

Executive:
   
Name:
Address:

 

 

Date of Agreement:

Closing Date:

Vesting Reference Date:

 

[ Signature Page To Subscription Agreement ]


Agreed to and accepted:

 

SUMMIT MATERIALS HOLDINGS L.P.

By: Summit Materials Holdings GP, Ltd., its

General Partner

By:    
  Name:
  Title:  

 

[ Signature Page To Subscription Agreement ]


SCHEDULE I-A

Number of Interests

 

Class of Interests

   Number of Interests
Class D-1 U.S. Interests   
Class D-1 Non-U.S. Interests   
Class D-2 U.S. Interests   
Class D-2 Non-U.S. Interests   


SCHEDULE I-B

Time-Vesting Interests

With regard to the Interests granted hereunder (the “ Time-Vesting Interests ”), such interests shall vest in five equal, annual installments, beginning on first anniversary of the Vesting Reference Date.

Notwithstanding the foregoing, immediately prior to, and following, the occurrence of a Change of Control that occurs prior to the Termination Date, 100% of the Time-Vesting Interests that are Unvested Interests shall become Vested Interests.

Any Time-Vesting Interests that are Unvested Interests on a Termination Date shall be immediately forfeited by Executive.


Appendix A

Restrictive Covenants

1. Confidentiality; Non-Compete; Non-Solicit; Non-Disparagement .

(a) For the purposes of this Appendix A, any reference to the “Company” shall mean the Company and its Subsidiaries and Affiliates, collectively. In view of the fact that Executive’s work for the Company brings Executive into close contact with many confidential affairs of the Company not readily available to the public, and plans for further developments, Executive agrees:

(i) Executive will not at any time (whether during or after Executive’s Employment with the Company) (x) retain or use for the benefit, purposes or account of Executive or any other Person; or (y) disclose, divulge, reveal, communicate, share, transfer or provide access to any Person outside the Company (other than its professional advisers who are bound by confidentiality obligations), any non-public, proprietary or confidential information – including without limitation trade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors, personnel, compensation, recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals – concerning the past, current or future business, activities and operations of the Company, its Subsidiaries or Affiliates and/or any third party that has disclosed or provided any of same to the Company on a confidential basis (“ Confidential Information ”) without the prior written authorization of the Board, except as specifically necessary during the term of Executive’s Employment in order to perform the duties of his or her position and in the best interests of the Company.

(ii) “Confidential Information” shall not include any information that is (a) generally known to the industry or the public other than as a result of Executive’s breach of this covenant or any breach of other confidentiality obligations by third parties; (b) made legitimately available to Executive by a third party without breach of any confidentiality obligation; or (c) required by law to be disclosed; provided that Executive shall give prompt written notice to the Company of such requirement, disclose no more information than is so required, and cooperate with any attempts by the Company to obtain a protective order or similar treatment.

(iii) Except as required by law, Executive will not disclose to anyone, other than Executive’s immediate family and legal or financial advisors, the existence or contents of this Agreement; provided that Executive may disclose to any prospective future employer the provisions of Section (b) of this Appendix provided they agree to maintain the confidentiality of such terms.


(iv) Upon termination of Executive’s Employment with the Company for any reason, Executive shall (x) cease and not thereafter commence use of any Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade name, logo, domain name or other source indicator) owned or used by the Company, its Subsidiaries or Affiliates; (y) immediately destroy, delete, or return to the Company, at the Company’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters and other data) in Executive’s possession or control (including any of the foregoing stored or located in Executive’s office, home, laptop or other computer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of the Company, its Affiliates and Subsidiaries, except that Executive may retain only those portions of any personal notes, notebooks and diaries that do not contain any Confidential Information; and (z) notify and fully cooperate with the Company regarding the delivery or destruction of any other Confidential Information of which Executive is or becomes aware.

(b) Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its Affiliates and accordingly agrees as follows:

(i) Executive will not, within twelve months following the termination of Executive’s Employment with the Company or such shorter time as provided in Section 1(b)(iv) (the “ Post-Termination Period ”) or during Executive’s Employment (collectively with the Post-Termination Period, the “ Restricted Period ”):

(A) engage in any business involved, either directly or indirectly, in (x) the acquisition of companies primarily engaged in the U.S. and Canadian aggregates and related downstream product sectors (including, but not limited to, asphalt, paving, cement, concrete and concrete products) (any such company, a “ Business ”) or (y) the operation of any Business (any such business as described in subclauses (x) or (y), a “ Competitive Business ”).

(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;

(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or

(D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between the Company or any of its Affiliates and customers, clients, suppliers, partners, members, investors or acquisition targets.

(ii) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:

(A)solicit or encourage any employee of the Company or its Affiliates to leave the Employment of the Company or its Affiliates; or


(B) hire any such employee who was employed by the Company or its Affiliates as of the date of Executive’s termination of Employment with the Company or who left the Employment of the Company or its Affiliates coincident with, or within one year prior to or after, the termination of Executive’s Employment with the Company.

(iii) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly solicit or assist in soliciting in competition with the Company, the business of any client or prospective client:

(A)with whom Executive had personal contact or dealings on behalf of the Company during the one-year period preceding Executive’s termination of Employment;

(B) with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company during the one year immediately preceding Executive’s termination of Employment; or

(C) for whom Executive had direct or indirect responsibility during the one year immediately preceding Executive’s termination of Employment.

(iv) If total equity investments by the Company are less than $200 million, there is a proposed dissolution of the Company pursuant to the terms of the LP Agreement (a “ Dissolution ”), and Executive is not terminated for Cause and does not resign other than due to a Constructive Termination (as defined in Executive’s employment agreement with the Company) before the Dissolution is completed (or such earlier time as determined by the Company), (a) the Restricted Period shall be twelve months following termination of employment with the Company, and (b) the term Competitive Business for purposes hereof shall be limited to operations within one hundred (100) miles of a Company facility.

(v) Notwithstanding the above, the covenants in this Section 1(b) and in Section 1(c) shall not apply if an Initial Acquisition does not occur on or before December 1, 2010 and Executive’s employment terminates before an Initial Acquisition. Notwithstanding the above, the covenants in this Section 1(b) and in Section 1(c) shall not apply if both an Initial Acquisition (as defined in Executive’s employment agreement) does not occur on or before December 1, 2010 and Executive’s employment is terminated prior to an Initial Acquisition.

Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person which are publicly traded on a national or regional stock exchange or on the over-the-counter market if Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.


(c) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with the Company or its Affiliates any consultant then under contract with the Company or its Affiliates.

(d) Executive will not, other than as required by law or by order of a court or other competent authority, make or publish, or cause any other person to make or publish, any statement that is disparaging or that reflects negatively upon the Company or its Affiliates, or that is or reasonably would be expected to be damaging to the reputation of the Company or its Affiliates.

(e) It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Appendix A to be reasonable, if a final judicial determination is made by a court of competent jurisdiction, that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.

(f) The period of time during which the provisions of this Appendix A shall be in effect shall be extended by the length of time during which Executive is in breach of the terms hereof as determined by any court of competent jurisdiction on the Company’s application for injunctive relief.

2. Specific Performance; Survival .

(a) Executive acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of this Appendix A would be inadequate and the Company would suffer irreparable damages as a result of such breach or threatened breach. In recognition of this fact, Executive agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, shall be entitled to suspend making any payments or providing any benefit otherwise required by this Agreement and obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available.

(b) The provisions of this Appendix A shall survive the termination of Executive’s Employment for any reason.

Exhibit 10.12

EXECUTION VERSION

EMPLOYMENT AGREEMENT

KEVIN GILL

EMPLOYMENT AGREEMENT (the “ Agreement ”) dated November 11, 2013 by and between Summit Materials Holdings L.P. (the “ Company ”) and Kevin Gill (“ Executive ”).

The Company desires to employ Executive and to enter into an agreement embodying the terms of such employment;

Executive desires to accept such employment and enter into such an agreement;

In consideration of the promises and mutual covenants herein and for other good and valuable consideration, the parties agree as follows:

1. Term of Employment . Subject to the provisions of Section 6 of this Agreement, Executive shall be employed by the Company hereunder for a period commencing on May 21, 2013 (the “ Commencement Date ”) and ending on the third anniversary of the Commencement Date (the “ Employment Term ”) on the terms and subject to the conditions set forth in this Agreement; provided , however, that (a) commencing with the third anniversary of the Commencement Date and on each anniversary thereafter (each an “ Extension Date ”), the Employment Term shall be automatically extended for an additional one-year period, unless the Company or Executive provides the other party hereto 60 days prior written notice before the next Extension Date that the Employment Term shall not be so extended and (b) if the Company is dissolved pursuant to the terms of the LP Agreement (a “ Dissolution ”), then the Employment Term shall automatically and immediately be terminated and, except as expressly provided in Section 6(d), no Person shall have any obligation hereunder except to the extent such obligation arose prior to, or directly as a result of, such termination.

2. Position .

a. During the Employment Term, Executive shall serve as the Chief Human Resource Officer of the Company. In such position, Executive shall have such duties and authority as shall be determined from time to time by the Board of Directors of the General Partner (the “ Board ”). If requested by the General Partner of the Company (the “ General Partner ”), Executive shall also serve as a member of the board of directors (and any committees thereof) of any of the Company’s affiliates, without additional compensation.

b. During the Employment Term, Executive will devote Executive’s full business time and best efforts to the performance of Executive’s duties hereunder and will not engage in any other business, profession or occupation for compensation or otherwise which would conflict or interfere with the rendition of such services either directly or indirectly, without the prior written consent of the Board; provided that nothing herein shall preclude Executive, subject to the prior approval of the Board, from accepting appointment to or continuing to serve on any board of directors or trustees of any business corporation or any charitable organization; provided in each case, and in the aggregate, that such activities do not conflict or interfere with the performance of Executive’s duties hereunder or conflict with Sections 7 and 8.


3. Compensation .

a. During the Employment Term, the Company shall pay Executive a base salary at the annual rate of $300,000 per annum, payable in regular installments in accordance with the Company’s usual payment practices. The rate of Executive’s base salary will be reviewed annually by the Board, and may be increased (but not decreased). Executive’s annual base salary, as in effect from time to time, is hereinafter referred to as the “ Base Salary .”

b. With respect to each full or partial fiscal year during the Employment Term, Executive shall be eligible to earn an annual bonus (an “ Annual Bonus ”), with the amount of the Annual Bonus targeted at sixty percent (60%) of Executive’s Base Salary (the “ Target Annual Bonus ”) based upon the achievement of performance targets agreed to by the Board and Executive within the first three months of each fiscal year during the Employment Term (no later than June 30, 2013 for 2013), with a potential bonus of up to one hundred fifty percent (150%) of the Base Salary for extraordinary performance; provided , however, the Board, in its sole discretion, may appropriately adjust such performance targets in any fiscal year to reflect any merger, acquisition or divestiture effected by the Company during such fiscal year. The Annual Bonus, if any, shall be paid by the Company to Executive in a cash lump sum during the calendar year immediately following the fiscal year in which it is earned, promptly after the Company receives its audited financial statements with respect to the fiscal year in which the Annual Bonus was earned. The Annual Bonus shall be prorated for partial years of employment and, for fiscal year 2013, shall be paid no later than March 15, 2014.

c. No later than 30 days after the Commencement Date, the Company shall pay Executive a one-time sign-on bonus of $20,000.

d. The Company shall provide Executive a monthly automobile allowance of $1,000.

e. The Company shall provide Executive a relocation package described in Exhibit A .

f. Executive and the Company shall enter into separate agreements relating to the Company’s grant of equity awards to Executive.

4. Employee Benefits . During the Employment Term, Executive shall be entitled to participate in the Company’s employee benefit plans as in effect from time to time (collectively “ Employee Benefits ”), on the same basis as those benefits are generally made available to other senior executives of the Company. Executive’s medical benefits shall commence on August 1, 2013 and, for the interim period before such coverage begins, the Company shall reimburse Executive for the “COBRA” premiums he pays for continued medical coverage from his prior employer. In addition to standard Company holidays, Executive shall be entitled to three weeks of annual vacation (prorated for partial years of employment) in accordance with Company policies.

5. Business Expenses . During the Employment Term, reasonable business expenses incurred by Executive in the performance of Executive’s duties hereunder shall be reimbursed by the Company in accordance with Company policies.

 

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6. Termination . The Employment Term and Executive’s employment hereunder may be terminated by either party at any time and for any reason; provided that Executive will be required to give the Company at least 60 days advance written notice of any resignation of Executive’s employment. Notwithstanding any other provision of this Agreement, the provisions of this Section 6 shall exclusively govern Executive’s rights upon termination of employment with the Company and its affiliates.

a. By the Company With Cause or By Executive Other Than As a Result of a Constructive Termination .

(i) The Employment Term and Executive’s employment hereunder may be terminated by the Company with Cause (as defined below) and shall terminate automatically upon the effective date of Executive’s resignation other than as a result of a Constructive Termination (as defined in Section 6(c)); provided that Executive will be required to give the Company at least 60 days advance written notice of a resignation other than as a result of a Constructive Termination.

(ii) For purposes of this Agreement, “ Cause ” shall mean that the Board, based on information then known to the Company or the General Partner, determines in good faith (A) Executive’s willful or grossly negligent continued failure to substantially perform Executive’s material duties hereunder (other than as a result of total or partial incapacity due to physical or mental illness) for a period of 30 days following written notice by the Company or the General Partner to Executive of such failure, (B) dishonesty in the performance of Executive’s material duties hereunder, (C) an act or acts on Executive’s part constituting, or plea of guilty or nolo contendere to a crime constituting, (x) a felony under the laws of the United States or any state thereof or (y) a misdemeanor involving moral turpitude, (D) Executive’s willful malfeasance or willful misconduct in connection with Executive’s duties hereunder or (E) Executive’s breach, in a material respect, of Sections 7 or 8 of this Agreement that is not cured (to the extent curable) for a period of 30 days following written notice by the Company or the General Partner to Executive of such breach. Notwithstanding anything herein to the contrary, the Executive shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of the Board (after reasonable written notice to the Executive and an opportunity for him, together with his counsel, to be heard before the Board) finding that in the good faith opinion of the Board, the Executive has engaged in acts or omissions constituting Cause which are not curable or which have not been cured within the permitted cure period specified in the immediately-preceding sentence.

(iii) If Executive’s employment is terminated by the Company with Cause or if Executive resigns other than as a result of a Constructive Termination, Executive shall be entitled to receive:

(A) the Base Salary accrued through the date of termination, payable in accordance with the Company’s usual payment practices;

 

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(B) any Annual Bonus earned, but unpaid, as of the date of termination for the immediately preceding fiscal year, paid in accordance with Section 3(b) (except to the extent payment is otherwise deferred pursuant to any applicable deferred compensation arrangement with the Company);

(C) reimbursement, within 60 days following submission by Executive to the Company of appropriate supporting documentation) for any unreimbursed business expenses properly incurred by Executive in accordance with Company policy prior to the date of Executive’s termination; provided that claims for such reimbursement (accompanied by appropriate supporting documentation) are submitted to the Company within 90 days following the date of Executive’s termination of employment; and

(D) such fully vested and nonforfeitable Employee Benefits, if any, as to which Executive may be entitled under the employee benefit plans of the Company (the amounts described in clauses (A) through (D) hereof being referred to as the “ Accrued Rights ”).

Following such termination of Executive’s employment by the Company with Cause or resignation by Executive other than as a result of a Constructive Termination, except as set forth in this Section 6(a)(iii), Executive shall have no further rights to any compensation or any other benefits under this Agreement, except as otherwise required by law.

b. Disability or Death .

(i) The Employment Term and Executive’s employment hereunder shall terminate upon Executive’s death and may be terminated by the Company if Executive becomes physically or mentally incapacitated and is therefore unable for a period of twelve (12) consecutive months to substantially perform Executive’s essential functions with or without a reasonable accommodation (such incapacity is hereinafter referred to as “ Disability ”). This definition of Disability shall be interpreted and applied consistent with the Americans With Disability Act, the Family Medical Leave Act, and other applicable law. Termination because of Disability will be effective upon the occurrence of such event and upon written notice to the Executive in accordance with Section 10(i) hereof.

(ii) Upon termination of Executive’s employment hereunder for either Disability or death, Executive or Executive’s estate (as the case may be) shall be entitled to receive:

(A) the Accrued Rights; and

(B) a pro-rata portion of the Annual Bonus, if any, that Executive would have been entitled to receive pursuant to Section 3(b) hereof in such year based upon the percentage of the fiscal year that shall have elapsed through the date of Executive’s termination of employment, payable when such Annual Bonus would have otherwise been payable to Executive pursuant to Section 3(b) had Executive’s employment not terminated (the “ Pro-Rata Bonus ”).

 

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Following Executive’s termination of employment due to death or Disability, except as set forth in this Section 6(b)(ii), Executive shall have no further rights to any compensation or any other benefits under this Agreement.

c. By the Company Without Cause or Resignation by Executive as a result of a Constructive Termination .

(i) The Employment Term and Executive’s employment hereunder may be terminated by the Company without Cause or by Executive’s resignation as a result of a Constructive Termination.

(ii) For purposes of this Agreement, a “ Constructive Termination ” shall mean any of the following, without the Executive’s prior written consent: (A) a material reduction in the Executive’s Base Salary or Target Annual Bonus; (B) a material diminution of the Executive’s authority, duties or responsibilities; (C) a required relocation of the Executive’s primary place of business by more than fifty (50) miles from Denver, Colorado; (D) the failure of the Company to pay or cause to be paid Executive’s Base Salary or Annual Bonus, when due hereunder or (E) any material breach by the Company of this Agreement or any agreement between the Company and the Executive relating to Executive’s compensation (including any equity awards); provided that either of the events described in clauses (A), (B), (C), (D) and (E) of this Section 6(c)(ii) shall constitute a Constructive Termination only if the Company fails to cure such event within 30 days after receipt from Executive of written notice of the event which constitutes such Constructive Termination; provided , further , that a “Constructive Termination” shall cease to exist for an event on the 60 th day following the later of its occurrence or Executive’s knowledge thereof, unless Executive has given the Company written notice thereof prior to such date.

(iii) If Executive’s employment is terminated by the Company without Cause (other than by reason of death or Disability) or if Executive resigns as a result of a Constructive Termination, Executive shall be entitled to receive:

(A) the Accrued Rights; and

(B) subject to Executive’s continued compliance with the provisions of Sections 7 and 8 and execution, within 30 days after the date of Executive’s termination of employment, and non-revocation of a general release of claims against the Company and its affiliates in a form and substance reasonably satisfactory to the Company,

(1) continued payment of the Base Salary in accordance with the Company’s normal payroll practices, as in effect on the date of termination of Executive’s employment, until twelve months after the date of such termination (the “Severance Period”); and

(2) payment of Executive’s “COBRA” premiums until the earlier of the end of the Severance Period or when Executive is no longer eligible for COBRA coverage under applicable law.

 

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Following Executive’s termination of employment by the Company without Cause (other than by reason of Executive’s death or Disability) or by Executive’s resignation as a result of a Constructive Termination, except as set forth in this Section 6(c)(iii), Executive shall have no further rights to any compensation or any other benefits under this Agreement.

d. Expiration of Employment Term or Dissolution . In the event (A) Executive elects not to extend the Employment Term pursuant to Section 1 of this Agreement or (B) of a Dissolution with a Negative Return, unless Executive’s employment is earlier terminated pursuant to paragraphs (a), (b) or (c) of this Section 6, Executive’s termination of employment hereunder (whether or not Executive continues as an employee of the Company thereafter) shall be deemed to occur on the close of business on the earlier of the effective date of Dissolution or the day immediately preceding the next scheduled Extension Date, and Executive shall be entitled to receive the Accrued Rights. Following such termination of Executive’s employment hereunder, Executive shall have no further rights to any compensation or any other benefits under this Agreement. In the event (A) that the Company elects not to extend the Employment Term pursuant to Section 1 of this Agreement or (B) of a Dissolution with a Positive Return, Executive shall be treated as terminated without Cause effective as of (as applicable) the close of business on the day immediately preceding the next scheduled Extension Date or the effective date of the Dissolution, and shall be entitled to receive the amounts and benefits specified in Section 6(c)(iii). For purposes hereof, “ Positive Return ” means the Sponsor shall have received aggregate cash proceeds and the fair market value of property in respect of its Class A-1 Interests in the Company equal to more than 100% of its aggregate Capital Contributions (as defined in the LP Agreement) in respect of such Class A-1 Interests, and “ Negative Return ” means that the Sponsor shall have received aggregate cash proceeds and the fair market value of property in respect of its Class A-1 Interests in the Company of equal to or less than 100% of its aggregate Capital Contributions (as defined in the LP Agreement) in respect of such Class A-1 Interests. Capitalized terms in the immediately-preceding sentence shall have the same meaning as specified in the Management Interest Subscription Agreement between Executive and the Company.

e. Notice of Termination . Any purported termination of employment by the Company or by Executive (other than due to Executive’s death) shall be communicated by written Notice of Termination to the other party hereto in accordance with Section 10(i) hereof. For purposes of this Agreement, a “ Notice of Termination ” shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of employment under the provision so indicated.

f. Resignation from Other Positions . Upon termination of Executive’s employment from the Company for any reason, Executive agrees to resign, as of the date of such termination and to the extent applicable, from the board of directors (and any committees thereof) of any of the Company’s affiliates and any positions held at the General Partner.

 

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7. Restrictive Covenants .

a. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates and accordingly agrees as follows:

(1) During the Employment Term and, for a period of twelve months following the date Executive ceases to be employed by the Company due to Termination with Cause (or such shorter time as provided in Section 7(b)) (the “ Restricted Period ”), Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“ Person ”), directly or indirectly solicit or assist in soliciting in competition with the Company, the business of any client or prospective client:

 

  (i) with whom Executive had significant and material personal contact or dealings on behalf of the Company during the one-year period preceding Executive’s termination of employment; or

 

  (ii) for whom Executive had significant and material direct or indirect responsibility during the one year immediately preceding Executive’s termination of employment.

(2) During the Restricted Period, Executive will not directly or indirectly:

 

  (i) engage in any business involved, either directly or indirectly, in (x) the acquisition of companies primarily engaged in the U.S. and Canadian aggregates and related downstream product sectors (including, but not limited to, asphalt, paving, cement, concrete and concrete products) (any such company, a “ Business ”) or (y) the operation of any Business (any such business as described in subclauses (x) or (y), a “ Competitive Business ”);

 

  (ii) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;

 

  (iii) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or

 

  (iv) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between the Company or any of its affiliates, customers, clients, suppliers, partners, members, investors or acquisition targets.

(3) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in a Competitive Business which are publicly traded on a national or regional stock exchange or on the over-the-counter market if Executive (i) is not a controlling Person of, or a member of a group which controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.

 

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(4) During the Restricted Period, Executive will not, whether on Executive’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:

 

  (i) solicit or encourage any employee of the Company or its affiliates to leave the employment of the Company or its affiliates; or

 

  (ii) hire any such employee who was employed by the Company or its affiliates as of the date of Executive’s termination of employment with the Company or who left the employment of the Company or its affiliates coincident with, or within one year prior to or after, the termination of Executive’s employment with the Company.

(5) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with the Company or its affiliates any consultant then under contract with the Company or its affiliates.

(6) Executive and the Company will not, other than as required by law or by order of a court or other competent authority, make or publish, or cause any other person to make or publish, any statement that is disparaging or that reflects negatively upon the other (or in the case of the Company, its affiliates), or that is or reasonably would be expected to be damaging to the reputation of the other (or in the case of the Company, its affiliates).

(b) It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 7 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.

(c) Notwithstanding any provision of this Agreement to the contrary, in the event of any Dissolution, whether with a Positive Return or Negative Return, this Section 7 shall not apply.

8. Confidentiality; Intellectual Property .

a. Confidentiality .

(i) Executive will not at any time (whether during or after Executive’s employment with the Company) (x) retain or use for the benefit, purposes or account of Executive or any other Person; or (y) disclose, divulge, reveal, communicate, share, transfer or provide access to any Person outside the Company (other than its professional advisers who are bound by confidentiality obligations), any non-public, proprietary or confidential information —

 

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including without limitation trade secrets, know-how, research and development, software, databases, inventions, processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors, personnel, compensation, recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals — concerning the past, current or future business, activities and operations of the Company, its subsidiaries or affiliates and/or any third party that has disclosed or provided any of same to the Company on a confidential basis (“ Confidential Information ”) without the prior written authorization of the Board, except as specifically necessary during the term of the Executive’s employment in order to perform the duties of his or her position and in the best interests of the Company.

(ii) “Confidential Information” shall not include any information that is (a) generally known to the industry or the public other than as a result of Executive’s breach of this covenant or any breach of other confidentiality obligations by third parties; (b) made legitimately available to Executive by a third party without breach of any confidentiality obligation; or (c) required by law to be disclosed; provided that Executive shall give prompt written notice to the Company of such requirement, disclose no more information than is so required, and cooperate with any attempts by the Company to obtain a protective order or similar treatment.

(iii) Except as required by law, Executive will not disclose to anyone, other than Executive’s immediate family and legal or financial advisors, the existence or contents of this Agreement; provided that Executive may disclose to any prospective future employer the provisions of Sections 7 and 8 of this Agreement provided they agree to maintain the confidentiality of such terms.

(iv) Upon termination of Executive’s employment with the Company for any reason, Executive shall (x) cease and not thereafter commence use of any Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade name, logo, domain name or other source indicator) owned or used by the Company, its subsidiaries or affiliates; (y) immediately destroy, delete, or return to the Company, at the Company’s option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters and other data) in Executive’s possession or control (including any of the foregoing stored or located in Executive’s office, home, laptop or other computer, whether or not Company property) that contain Confidential Information or otherwise relate to the business of the Company, its affiliates and subsidiaries, except that Executive may retain only those portions of any personal notes, notebooks and diaries that do not contain any Confidential Information; and (z) notify and reasonably cooperate with the Company regarding the delivery or destruction of any other Confidential Information of which Executive is or becomes aware.

b. Intellectual Property .

(i) If Executive creates, invents, designs, develops, contributes to or improves any Works, either alone or with third parties, at any time during Executive’s employment by the Company and within the scope of such employment and/or with the use of any the Company resources (“ Company Works ”), Executive shall promptly and fully disclose same to the Company and hereby irrevocably assigns, transfers and conveys, to the maximum extent permitted by applicable law, all rights and intellectual property rights therein (including rights under patent, industrial property, copyright, trademark, trade secret, unfair competition and related laws) to the Company to the extent ownership of any such rights does not vest originally in the Company.

 

9


(ii) Executive agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other form or media requested by the Company) of all Company Works. The records will be available to and remain the sole property and intellectual property of the Company at all times.

(iii) Executive shall take all requested actions and execute all requested documents (including any licenses or assignments required by a government contract) at the Company’s expense (but without further remuneration) to assist the Company in validating, maintaining, protecting, enforcing, perfecting, recording, patenting or registering any of the Company’s rights in the Company Works.

(iv) Executive shall not improperly use for the benefit of, bring to any premises of, divulge, disclose, communicate, reveal, transfer or provide access to, or share with the Company any confidential, proprietary or non-public information or intellectual property relating to a former employer or other third party without the prior written permission of such third party. Executive shall comply with all relevant policies and guidelines of the Company, including regarding the protection of confidential information and intellectual property and potential conflicts of interest. Executive acknowledges that the Company may amend any such policies and guidelines from time to time, and that Executive remains at all times bound by their most current version.

(v) The provisions of Sections 7, 8 and 9 shall survive the termination of Executive’s employment for any reason.

9. Specific Performance . Executive acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of Section 7 or Section 8 would be inadequate and the Company would suffer irreparable damages as a result of such breach or threatened breach. In recognition of this fact, Executive agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond, shall be entitled to cease making any payments or providing any benefit otherwise required by this Agreement, as allowed by law, and obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available.

10. Miscellaneous .

a. Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws principles thereof that would direct the application of the laws of any other jurisdiction.

b. Entire Agreement/Amendments . This Agreement contains the entire understanding of the parties with respect to the employment of Executive by the Company, and supersedes any prior agreements or understandings between the parties relating to the subject

 

10


matter of this Agreement (except that matters relating to the Company’s grant of equity awards to Executive and Executive’s investment in the equity of the Company shall be governed by the separate agreements relating thereto). There are no restrictions, agreements, promises, warranties, covenants or undertakings between the parties with respect to the subject matter herein other than those expressly set forth herein. This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto.

c. No Waiver . The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.

d. Severability . In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected thereby.

e. Assignment . This Agreement, and all of Executive’s rights and duties hereunder, shall not be assignable or delegable by Executive. Any purported assignment or delegation by Executive in violation of the foregoing shall be null and void ab initio and of no force and effect. This Agreement may be assigned by the Company to a Person or entity which is an affiliate or a successor in interest to substantially all of the business operations of the Company. Upon such assignment, the rights and obligations of the Company hereunder shall become the rights and obligations of such affiliate or successor Person or entity.

f. No Mitigation . Executive shall not be obligated to mitigate the amount of severance payments payable hereunder by seeking other employment, or otherwise, nor shall the amounts payable to Executive hereunder be reduced by compensation earned by Executive by any subsequent employer.

g. Compliance with IRC Section 409A . Notwithstanding anything herein to the contrary, (i) if at the time of Executive’s termination of employment with the Company Executive is a “specified employee” as defined in Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”) and the deferral of the commencement of any payments or benefits otherwise payable hereunder or pursuant to any other agreement with the Company as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Executive) until the date that is six months following Executive’s termination of employment with the Company (or the earliest date as is permitted under Section 409A of the Code without any accelerated or additional tax) and (ii) if any other payments of money or other benefits due to Executive hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that is reasonably expected not to cause such an accelerated or additional tax. For purposes of

 

11


Section 409A of the Code, each payment made under this Agreement shall be designated as a “separate payment” within the meaning of the Section 409A of the Code, and references herein to Executive’s “termination of employment” shall refer to Executive’s separation from service with the Company Group within the meaning of Section 409A. To the extent any reimbursements or in-kind benefits due to Executive under this Agreement constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to Executive in a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). The Company shall consult with Executive in good faith regarding the implementation of the provisions of this Section 10(g); provided that neither the Company nor any of its employees or representatives shall have any liability to Executive with respect thereto.

h. Successors; Binding Agreement . This Agreement shall inure to the benefit of and be binding upon personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.

i. Notice . For the purpose of this Agreement, notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three days after it has been mailed by United States registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below in this Agreement, or to such other address as either party may have furnished to the other in writing in accordance herewith, except that notice of change of address shall be effective only upon receipt.

If to the Company:

Summit Materials Holdings L.P.

1550 Wynkoop Street, Suite 300

Denver, CO 80202

Attention: Office of General Counsel/Chief Legal Officer

with a copy (which shall not constitute notice) to:

Silverhawk Capital Partners

4725 Piedmont Row Drive, Suite 420

Charlotte, NC 28210

Attention: Ted Gardner

with a copy (which shall not constitute notice) to:

The Blackstone Group L.P.

345 Park Avenue

New York, New York 10154

Attention: Neil Simpkins

Fax: 212-583-5712

If to Executive:

To the most recent address of Executive set forth in the personnel records of the Company.

 

12


j. Executive Representation . Executive hereby represents to the Company that the execution and delivery of this Agreement by Executive and the Company and the performance by Executive of Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy to which Executive is a party or otherwise bound.

k. Prior Agreements . This Agreement supersedes all prior agreements and understandings (including verbal agreements) between Executive and the Company and/or its affiliates regarding the terms and conditions of Executive’s employment with the Company and/or its affiliates.

l. Cooperation . Executive shall provide Executive’s reasonable cooperation in connection with any action or proceeding (or any appeal from any action or proceeding) which relates to events occurring during Executive’s employment with the Company and its affiliates. This provision shall survive any termination of this Agreement.

m. Withholding Taxes . The Company may withhold from any amounts payable under this Agreement such Federal, state and local taxes as may be required to be withheld pursuant to any applicable law or regulation.

n. No Recourse . Notwithstanding anything to the contrary herein, Executive agrees and acknowledges that with respect to any payment, benefit or any other obligation or right under this Agreement, Executive shall have no recourse against The Blackstone Group L.P., Silverhawk Capital Partners or any of their respective affiliates (other than the Company).

o. Counterparts . This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

13


IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.

 

SUMMIT MATERIALS HOLDINGS L.P.       KEVIN GILL
By:   /s/ Thomas Hill      

/s/ Kevin Gill

Name:   Thomas Hill      
Title:   Authorized Person      


Exhibit A

Relocation Package

Executive’s relocation package shall consist of the following. All reimbursements or direct payments described herein shall be payable no later than March 15, 2014.

 

   

The Company will provide Executive temporary housing in Denver (for a period expected to be 3-4 months to give Executive a place to live while he seeks permanent housing). This housing will be taxable income to Executive, and the Company will “gross up” the federal, state and local income and Social Security/Medicare taxes Executive incurs with respect thereto, using Executive’s actual marginal tax rates.

 

   

The Company will reimburse Executive for all closing costs associated with the sale of his home in North Carolina, including realtor sales commission, attorney fees, document preparation and transfer taxes. This reimbursement will be grossed up for tax purposes on the same basis as the temporary housing provision.

 

   

Executive will be reimbursed for any loss incurred (i.e., any negative difference between the sales price (net of any sales commission) and the purchase price for the house) on the sale of his primary residence in North Carolina. This reimbursement will be grossed up for tax purposes on the same basis as the temporary housing provision.

 

   

The Company will reimburse or directly pay the reasonable expenses of packing, shipping and unpacking (as well as full replacement insurance) of moving Executive’s household goods to Colorado.

 

   

Executive will be reimbursed for his reasonable expenses of the physical move of his family (including lodging, mileage and meals) from North Carolina to Colorado. Executive must provide the Company proper documentation of these expenses promptly following when they are incurred.

 

   

The Executive will be entitled to ship one vehicle, with associated vehicle shipment insurance, to Colorado at the Company’s expense.

 

   

The Executive is entitled up to 90 days of Company-paid storage for his household goods.

 

   

The Company will reimburse the reasonable costs of up to three househunting trips in Colorado.

 

   

Executive is entitled to twice-monthly flights to North Carolina to visit his family until such time as his family relocates to Colorado.

Exhibit 12.1

SUMMIT MATERIALS, LLC AND SUBSIDIARIES

Computation of Ratio of Earnings to Fixed Charges

 

    Successor           Predecessor  
($ in thousands)   Year Ended
December 28,
2013
    Year Ended
December 29,
2012
    Year Ended
December 31,
2011
    Year Ended
December 31,
2010
    August 26,
2009 to
December 31,
2009
          April 1,
2009 to
August 25,
2009
 

Loss from continuing operations before income taxes (1)

  $ (105,798   $ (50,951   $ (1,441   $ (20,722   $ (5,040       $ 5,945   

Add (deduct)

               

Distributions from equity investments

    120        817        156        —          —              —     

Loss (income) from equity method investees

    (1,161     (683     894        656        —              —     

Capitalized interest

    (640     (193     —          (433     —              —     

Fixed Charges

    58,419        59,438        49,218        27,262        —              —     
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

 

Earnings, as defined

  $ (49,060   $ 8,428      $ 48,827      $ 6,763      $ (5,040       $ 5,945   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

 

Fixed Charges:

               

Interest on indebtedness and amortization of deferred financing costs

  $ 56,443      $ 58,079      $ 47,784      $ 25,430      $ 574          $ —     

Capitalized interest

    640        193        —          433        —              —     

Portion of rental expense under operating leases representative of the interest factor

    1,336        1,166        1,434        1,399        19            16   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

 

Total fixed charges

  $ 58,419      $ 59,438      $ 49,218      $ 27,262      $ 593          $ 16   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

 

Ratio of earnings to fixed charges (2)(3)

    N/A        0.1        1.0        0.2        N/A            364   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

       

 

 

 

 

(1) Represents earnings from continuing operations before adjustments for noncontrolling interests in consolidated subsidiaries.
(2) The ratio of earnings to fixed charges is determined by dividing earnings, as adjusted, by fixed charges. Fixed charges consist of interest on all indebtedness plus that portion of operating lease rentals representative of the interest factor (deemed to be 33% of operating lease rentals).
(3) Earnings were insufficient to cover fixed charges by $107.5 million and $5.6 million for the year ended December 28, 2013 and the period from August 26, 2009 to December 31, 2009, respectively.

Exhibit 21

SUBSIDIARIES OF SUMMIT MATERIALS, LLC

(as of March 7, 2014)

 

Name

  

Jurisdiction of Incorporation or Organization

Alleyton Resource Company, LLC

   Delaware

Alcomat, LLC

   Delaware

Alleyton Services Company, LLC

   Delaware

Austin Materials, LLC

   Delaware

Continental Cement Company, L.L.C.

   Delaware

Kilgore Companies, LLC

   Delaware

RK Hall, LLC

   Delaware

Summit Materials Corporations I, Inc.

   Delaware

Summit Materials Finance Corp.

   Delaware

Summit Materials Holdings II, LLC

   Delaware

Elam Construction, Inc.

   Colorado

Cornejo & Sons, L.L.C.

   Kansas

Hamm, Inc.

   Kansas

N.R. Hamm Contractor, LLC

   Kansas

N.R. Hamm Quarry, LLC

   Kansas

Bourbon Limestone Company

   Kentucky

Hinkle Contracting Company, LLC

   Kentucky

South Central Kentucky Limestone, LLC

   Kentucky

Con-Agg of MO, L.L.C.

   Missouri

B&H Contracting, L.P.

   Texas

Industrial Asphalt, LLC

   Texas

R.K. Hall Construction, Ltd.

   Texas

RKH Capital, L.L.C.

   Texas

SCS Materials, L.P.

   Texas

B&B Resources, Inc.

   Utah

Exhibit 31.1

CERTIFICATION

I, Thomas Hill, certify that:

 

1. I have reviewed this Annual Report on Form 10-K of Summit Materials, LLC (the “registrant”);

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

 

  (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  (b) [Reserved];

 

  (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: March 7, 2014
/s/ Thomas Hill

Thomas Hill

Chief Executive Officer

(Principal Executive Officer)

Exhibit 31.2

CERTIFICATION

I, Brian Harris, certify that:

 

1. I have reviewed this Annual Report on Form 10-K of Summit Materials, LLC (the “registrant”);

 

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

 

  (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  (b) [Reserved];

 

  (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: March 7, 2014
/s/ Brian Harris

Brian Harris

Chief Financial Officer

(Principal Financial Officer)

Exhibit 32.1

Certification

Pursuant to 18 U.S.C. Section 1350

As adopted pursuant to

Section 906 of the Sarbanes-Oxley Act of 2002

In connection with the Annual Report of Summit Materials, LLC (the “Company”) on Form 10-K for the year ended December 28, 2013 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Thomas Hill, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

  (i) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

  (ii) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Date: March 7, 2014
/s/ Thomas Hill

Thomas Hill

Chief Executive Officer

(Principal Executive Officer)

The foregoing certification is being furnished solely pursuant to 18 U.S.C. Section 1350 and is not being filed as part of the Report or as a separate disclosure document.

Exhibit 32.2

Certification

Pursuant to 18 U.S.C. Section 1350

As adopted pursuant to

Section 906 of the Sarbanes-Oxley Act of 2002

In connection with the Annual Report of Summit Materials, LLC (the “Company”) on Form 10-K for the year ended December 28, 2013 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Brian Harris, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

  (i) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

  (ii) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Date: March 7, 2014
/s/ Brian Harris

Brian Harris

Chief Financial Officer

(Principal Financial Officer)

The foregoing certification is being furnished solely pursuant to 18 U.S.C. Section 1350 and is not being filed as part of the Report or as a separate disclosure document.

Exhibit 95.1

Mine Safety Disclosures

The operation of the Company’s aggregates quarries and mines are subject to regulation by the federal Mine Safety and Health Administration (“MSHA”) under the Federal Mine Safety and Health Act of 1977 (the “Mine Act”). MSHA inspects the Company’s quarries and mines on a regular basis and issues various citations and orders when it believes a violation has occurred under the Mine Act. Whenever MSHA issues a citation or order, it also generally proposes a civil penalty, or fine, related to the alleged violation. Citations or orders may be contested and appealed, and as part of that process, are often reduced in severity and amount, and are sometimes dismissed.

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”), the Company is required to present information regarding certain mining safety and health citations which MSHA has issued with respect to its aggregates mining operations in its periodic reports filed with the Securities and Exchange Commission (“SEC”). In evaluating this information, consideration should be given to factors such as: (i) the number of citations and orders will vary depending on the size of the quarry or mine and types of operations (underground or surface), (ii) the number of citations issued will vary from inspector to inspector and location to location, and (iii) citations and orders can be contested and appealed, and in that process, may be reduced in severity and amount, and are sometimes dismissed.

The Company presents the following items regarding certain mining safety and health matters for the year ended December 28, 2013, as applicable:

 

   

Total number of violations of mandatory health or safety standards that could significantly and substantially contribute to the cause and effect of a mine safety or health hazard under section 104 of the Mine Act for which the Company has received a citation from MSHA (hereinafter, “Section 104 S&S Citations”). If MSHA determines that a violation of a mandatory health or safety standard is likely to result in a reasonably serious injury or illness under the unique circumstance contributed to by the violation, MSHA will classify the violation as a “significant and substantial” violation (commonly referred to as a “S&S” violation). MSHA inspectors will classify each citation or order written as a “S&S” violation or not.

 

   

Total number of orders issued under section 104(b) of the Mine Act (hereinafter, “Section 104(b) Orders”). These orders are issued for situations in which MSHA determines a previous violation covered by a Section 104(a) citation has not been totally abated within the prescribed time period, so a further order is needed to require the mine operator to immediately withdraw all persons (except authorized persons) from the affected area of a quarry or mine.

 

   

Total number of citations and orders for unwarrantable failure of the mine operator to comply with mandatory health or safety standards under Section 104(d) of the Mine Act (hereinafter, “Section 104(d) Citations and Orders”). These violations are similar to those described above, but the standard is that the violation could significantly and substantially contribute to the cause and effect of a safety or health hazard, but the conditions do not cause imminent danger, and the MSHA inspector finds that the violation is caused by an unwarranted failure of the operator to comply with the health and safety standards.

 

   

Total number of flagrant violations under section 110(b)(2) of the Mine Act (hereinafter, “Section 110(b)(2) Violations”). These violations are penalty violations issued if MSHA determines that violations are “flagrant,” for which civil penalties may be assessed. A “flagrant” violation means a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury.

 

   

Total number of imminent danger orders issued under section 107(a) of the Mine Act (hereinafter, “Section 107(a) Orders”). These orders are issued for situations in which MSHA determines an imminent danger exists in the quarry or mine and results in orders of immediate withdrawal of all persons (except certain authorized persons) from the area of the quarry or mine affected by its condition until the imminent danger and the underlying conditions causing the imminent danger no longer exist.

 

   

Total dollar value of proposed assessments from MSHA under the Mine Act. These are the amounts of proposed assessments issued by MSHA with each citation or order for the time period covered by the reports. Penalties are assessed by MSHA according to a formula that considers a number of factors, including the mine operator’s history, size, negligence, gravity of the violation, good faith in trying to correct the violation promptly, and the effect of the penalty on the operator’s ability to continue in business.

 

   

Total number of mining-related fatalities. Mines subject to the Mine Act are required to report all fatalities occurring at their facilities unless the fatality is determined to be “non-chargeable” to the mining industry. The final rules of the SEC require disclosure of mining-related fatalities at mines subject to the Mine Act. Only fatalities determined by MSHA not to be mining-related may be excluded.


   

Receipt of written notice from MSHA of a pattern (or a potential to have such a pattern) of violations of mandatory health or safety standards that are of such nature as could have significantly and substantially contributed to the cause and effect of other mine health or safety hazards under Section 104(e) of the Mine Act. If MSHA determines that a mine has a “pattern” of these types of violations, or the potential to have such a pattern, MSHA is required to notify the mine operator of the existence of such a thing.

 

   

Legal actions before the Federal Mine Safety and Health Review Commission pending as of the last day of period.

 

   

Legal actions before the Federal Mine Safety and Health Review Commission initiated during period.

 

   

Legal actions before the Federal Mine Safety and Health Review Commission resolved during period.

The Federal Mine Safety and Health Review Commission (the “Commission”) is an independent adjudicative agency that provides administrative trial and appellate review of legal disputes arising under the Mine Act. The cases may involve, among other questions, challenges by operators to citations, orders and penalties they have received from MSHA, or complaints of discrimination by miners under Section 105 of the Mine Act. There were no legal actions pending before the Commission for any of the Company’s quarries and mines, as of or during the year ended December 28, 2013.

Appendix 1 follows.


APPENDIX 1

 

Name of Company

  Name of
Operation
  MSHA
ID
Number
    State     Number of
Inspections
    Total
Number
of
Section
104 S&S
Citations
    Section
104(b)
Orders
    Section
104(d)
Citations
and
Orders
    Section
110(b)(2)
Violations
    Section
107(a)
Orders
    Total
Dollar
Value of
Proposed
MSHA
Assessments
    Total
Number
of
Mining
Related
Fatalities
    Received
Written
Notice
under
Section
104(e)
(yes/no)
  Received
Written
Notice

of
potential
Violation
under
104(e)
(yes/no)
  Number
of
Contested
Citations
    Number
of
Contested
Penalties
    Total
Dollar
Value

of
Penalties
in
Contest
    Number
of
Complaints
of
Discharge
or
Discrimination
 

Austin Materials

  Hays Quarry     4104514        TX        6                                         $ 763             No   No                 $          

Austin Materials

  Ramming Pit     4104807        TX        2                                                       No   No                            

Colorado Companies

  Washplant 2     0504746        CO        2                                           200             No   No                            

Colorado Companies

  Washplant 3     0504565        CO        2                                                       No   No                            

Colorado Companies

  Crusher1     0504296        CO        1        1                                    227             No   No                            

Colorado Companies

  Washplant 1     0504873        CO                                                              No   No                            

Colorado Companies

  Washplant 4     0503809        CO        1                                           100             No   No                            

Colorado Companies

  Crusher 2     0504645        CO        2        1                                    176             No   No                            

Colorado Companies

  Elam
Construction
Inc
    0504593        CO        2                                                       No   No                            

Colorado Companies

  Crusher 3     0504593        CO        2                                                       No   No                            

Con-Agg of MO

  Boon Quarries
West
    2300022        MO        2        1                                    512             No   No                            

Con-Agg of MO

  plant # 80     2302071        MO        3                                           208             No   No                            

Con-Agg of MO

  Plant # 81     2302296        MO        1                                                       No   No                            

Con-Agg of MO

  Boon Quarries
East
    2300078        MO        3        1                                    680             No   No                            

Con-Agg of MO

  Huntsville
Quarry
    2302004        MO        7        3                                    5,400        1      No   No                            

Con-Agg of MO

  Con-Agg LLC
dba Boone
Quarries
    2302153        MO        3        3                                    476             No   No                            

Con-Agg of MO

  Plant # 65     2301922        MO        3        1                                    785             No   No                            

Con-Agg of MO

  Boone Quarries-
North
Telsmith Plant
    2301894        MO                                                              No   No                            

Con-Agg of MO

  Plant #83     2302338        MO        1                                                       No   No                            

Continental Cement Company

  Hannibal Plant     2300217        MO        8        24               1               1        91,399             No   No     1        1        2,473          

Continental Cement Company

  Owensville
Plant
    2301038        MO        3                                           200             No   No                            

Continental Cement Company

  Hannibal
Underground
    2302434        MO        14        8        1                             2,774             No   No                            

Cornejo & Sons

  Oxford Sand
and Gravel
    1400522        KS        3                                                       No   No                            

Cornejo & Sons

  Wichita Sand
and Gravel
    1400543        KS        2                                                       No   No                            

Cornejo & Sons

  Kingsbury     1400624        KS        3                                                       No   No                            

Cornejo & Sons

  Grove     1401539        KS        3                                           100             No   No                            

Cornejo & Sons

  Durbin Quarry     1401719        KS        1                                                       No   No                            

Hamm, Inc

  Plant #80006     1401471        KS        1                                           100             No   No                            

Hamm, Inc

  Plant #80012     1401472        KS        1                                                       No   No                            

Hamm, Inc

  Plant # 80002     1401583        KS        1                                                       No   No                            

Hamm, Inc

  Plant # 80013     1401609        KS        2                                                       No   No                            

Hamm, Inc

  Plant # 80010     1401687        KS        1                                                       No   No                            

Hamm, Inc

  Plant # 80011     1401470        KS        2                                           100             No   No                            

Hamm, Inc

  Plant # 80003     1401474        KS        1                                           100             No   No                            

Hamm, Inc

  85.9     1401759        KS                                                              No   No                            

Hamm, Inc

  Plant #81038     1401709        KS                                                              No   No                            

Hinkle Contracting Company

  Hart County
Stone Company
    1500035        KY        2                                           200             No   No                            

Hinkle Contracting Company

  Monroe Co.
Stone
    1500101        KY        1                                           100             No   No                            

Hinkle Contracting Company

  Allen Co. Stone     1500063        KY        1                                           100             No   No                            

Hinkle Contracting Company

  Glass Sand and
Gravel
    1504261        KY        3        3                             1        317             No   No                            

Hinkle Contracting Company

  Bassett Stone
Company
    1500004        KY        1        1                                    138             No   No                            

Hinkle Contracting Company

  Tipton Ridge
Quarry
    1500019        KY        4                                           500             No   No                            

Hinkle Contracting Company

  Barren Co
Stone
    1506863        KY        2                                           316             No   No                            

Hinkle Contracting Company

  Casey Stone
Company
    1500012        KY        3                                           100             No   No                            

Hinkle Contracting Company

  Natural Bridge
Stone
    1500075        KY        3        2                                    913             No   No                            

Hinkle Contracting Company

  Somerset Stone
Company
    1500094        KY        2                                           500             No   No                            

Hinkle Contracting Company

  Lake
Cumberland
Stone
    1500099        KY        2                                           200             No   No                            

Hinkle Contracting Company

  cave Run Stone     1507194        KY        2        3                                    1,527             No   No                            

Hinkle Contracting Company

  Bourbon
Limestone
Company
    1518415        KY        4        3                                    4,236             No   No                            

Hinkle Contracting Company

  Pulaski Stone
Company
    1519092        KY        2                                           200             No   No                            

Hinkle Contracting Company

  Jellico Stone
Company
    4000057        TN        3        1                                    350             No   No                            

Hinkle Contracting Company

  Ewing Stone     4400234        VA        2                                           300             No   No                            

Kilgore Companies

  Portable 1     4202528        UT                                                              No   No                            

Kilgore Companies

  West Valley     4201980        UT                                                              No   No                            

Kilgore Companies

  Parleys Stone     4202102        UT        3        2                                    967             No   No     1        1        460          

Kilgore Companies

  Black Canyon
2100
    1002146        ID        1                                                       No   No                            

Kilgore Companies

  Powerscreen
2100-2
    1002147        ID        1                                                       No   No                            

Kilgore Companies

  Roadrunner
Screen
    1001916        ID        2                                                       No   No                            

Kilgore Companies

  Mona Pit     4202212        UT        1                                                       No   No                       

Kilgore Companies

  42H0393
Crusher
    4801625        WY                                                              No   No                            

Kilgore Companies

  Kohlberg Wash
Plant (Fear
    4801626        WY        1                                                       No   No                            

Kilgore Companies

  Stockton Pit     4202480        UT        2        1               1                      2,500             No   No     1        1        2,000          

Kilgore Companies

  Valley Pit     4200400        UT        3                                           300             No   No                            

Kilgore Companies

  Highland Pit     4200941        UT        4                                           200             No   No                            

RK Hall Construction

  Sawyer Plant     3401950        OK        5        4                                    1,553             No   No                            

RK Hall Construction

  Kirby Crusher
#15
    0301958        AR        2                                           100             No   No                            

Exhibit 99.1

Section 13(r) Disclosure

The disclosures reproduced below were initially included in periodic reports filed with the Securities and Exchange Commission (the “SEC”) by The Blackstone Group L.P. (“Blackstone”), with respect to the fiscal quarters ended March 31, 2013, June 30, 2013 and September 30, 2013 and for the year ended December 31, 2013, in accordance with Section 13(r) of the Securities Exchange Act of 1934, as amended. Hilton Worldwide Inc., SunGard Capital Corp., SunGard Capital Corp. II, SunGard Data Systems Inc. and Travelport Limited may be considered affiliates of Blackstone, and therefore affiliates of Summit Materials, LLC (“Summit Materials”). Summit Materials did not independently verify or participate in the preparation of any of these disclosures.

Blackstone included the following disclosure in its Form 10-Q for the fiscal quarter ended March 31, 2013:

Hilton Worldwide Inc., which may be considered our affiliate, provided the disclosure reproduced below in connection with activities during the first fiscal quarter of 2013. We have not independently verified or participated in the preparation of this disclosure.

“During the reporting period, the Iranian Ministry of Youth and Sports purchased a number of room nights at the Hilton Ankara, Turkey, which is leased by a foreign affiliate of Hilton. Revenue received by Hilton for these hotel stays was approximately $4,360 and net profit was approximately $1,700. During calendar year 2012, the Embassy of Iran purchased a number of room nights at the hotel and organized a concert event in the hotel ballroom. Revenue received by Hilton for the services provided to the Embassy of Iran in 2012 was approximately $11,070 and net profit was approximately $4,300. Hilton believes that the hotel stays were exempt from the Iranian Transactions and Sanctions Regulations, 31 C.F.R. Part 560, pursuant to the International Emergency Economic Powers Act (“IEEPA”). The Hilton Ankara intends to continue engaging in future similar transactions to the extent they remain permissible under IEEPA.

Also during the reporting period, certain individual employees at two Hilton-branded hotels in the United Arab Emirates received routine wage payments as direct deposits to their personal accounts at Bank Melli, an entity identified on the Specially Designated Nationals and Blocked Persons List (“SDN List”) maintained by the Office of Foreign Assets Control in the U.S. Department of the Treasury. In addition, certain individual employees at these hotels received routine wage payments as direct deposits to their personal accounts at Bank Melli during calendar year 2012. Both of these hotels are owned by a third party, staffed by employees of the third-party owner and operated pursuant to a management agreement between the owner and a Hilton affiliate. In each case, these payments originated from the third-party owner’s account to the personal accounts of the employees at their chosen bank. No revenues or net profits are associated with these transactions. Both hotels have advised Hilton that they will discontinue making direct deposits to accounts at Bank Melli.

During the reporting period, several individuals stayed at the DoubleTree Kuala Lumpur, Malaysia, pursuant to a rate agreement between the hotel and Mahan Air, an entity identified on the SDN List. This hotel is staffed by employees of the third-party owner and operated pursuant to a management agreement between the owner and a Hilton affiliate. Under the agreement, which was entered into in the name of the owner, the hotel reserved a number of rooms for Mahan Air crew members at the DoubleTree Kuala Lumpur several times each week. Revenue received by Hilton attributable to Mahan Air crew hotel stays during the reporting period was approximately $1,550. The DoubleTree Kuala Lumpur also reserved a number of rooms for Mahan Air crew members during calendar year 2012. Revenue received by Hilton attributable to Mahan Air crew hotel stays in 2012 was approximately $3,820. Hilton considers its net profit on management fees to be approximately the same as its revenue. The DoubleTree Kuala Lumpur has terminated the agreement and does not intend to engage in any future transactions with Mahan Air.”

SunGard Capital Corp., SunGard Capital Corp. II and SunGard Data Systems Inc. (collectively referred to herein as “SunGard”), which may be considered our affiliates, provided the disclosure reproduced below in connection with activities during the first fiscal quarter of 2013. We have not independently verified or participated in the preparation of this disclosure.

“As previously reported on our Annual Report on Form 10-K for the year ended December 31, 2012, pursuant to Section 13(r)(1)(D)(i) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), during 2012 a U.K. subsidiary of ours provided certain limited disaster recovery services and hosted co-location of some hardware at our premises in London for Bank Saderat PLC, a bank incorporated and based in the U.K. Bank Saderat PLC is identified on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons pursuant to Executive Order No. 13224. Our subsidiary terminated this contract in the first quarter of 2013, and we do not otherwise intend to enter into any Iran-related activity. The gross revenue and net profits attributable to these activities in the first quarter of 2013 were less then £5,000 each.”


Additionally, after Blackstone filed its Form 10-K for fiscal year 2012, SunGard included the disclosure reproduced below in its Form 10-K for fiscal year 2012. We have not independently verified or participated in the preparation of this disclosure.

“Pursuant to Section 13(r)(1)(D)(i) of the Exchange Act, we note that during 2012 a U.K. subsidiary of ours provided certain limited disaster recovery services and hosted co-location of some hardware at our premises in London for Bank Saderat PLC, a bank incorporated and based in the UK. Bank Saderat PLC is identified on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons pursuant to Executive Order No. 13224. The intent of the services was to facilitate the ability of the UK-based employees of Bank Saderat PLC to continue local operations in the event of a disaster or other unplanned event in the UK, including use of shared work space and recovery of the Bank’s local UK data. The gross revenue and net profits attributable to these activities in 2012 was £16,300 and approximately £5,700, respectively. During 2012, no disaster or unplanned event occurred causing Bank Saderat PLC to make use of our recovery facilities in London, but Bank Saderat PLC did perform annual testing on-site. Our subsidiary has terminated this contract in the first quarter of 2013, and we do not otherwise intend to enter into any Iran-related activity.”

Travelport Limited, which may be considered our affiliate, provided the disclosure reproduced below in connection with activities during the first fiscal quarter of 2013. We have not independently verified or participated in the preparation of this disclosure.

“As part of our global business in the travel industry, we provide certain passenger travel-related GDS and airline IT services to Iran Air. We also provide certain airline IT services to Iran Air Tours. All of these services are either exempt from applicable sanctions prohibitions pursuant to a statutory exemption permitting transactions ordinarily incident to travel or, to the extent not otherwise exempt, specifically licensed by the U.S. Office of Foreign Assets Control. Subject to any changes in the exempt/licensed status of such activities, we intend to continue these business activities, which are directly related to and promote the arrangement of travel for individuals.”

Travelport has not provided us with gross revenues and net profits attributable to the activities described above.

Blackstone included the following disclosure in its Form 10-Q for the fiscal quarter ended June 30, 2013:

Hilton Worldwide Inc., which may be considered our affiliate, provided the disclosure reproduced below in connection with activities during the second fiscal quarter of 2013. We have not independently verified or participated in the preparation of this disclosure.

“As previously disclosed, during the reporting period, certain individual employees at two Hilton-branded hotels in the United Arab Emirates received routine wage payments as direct deposits to their personal accounts at Bank Melli, an entity identified on the Specially Designated Nationals and Blocked Persons List (“SDN List”) maintained by the Office of Foreign Assets Control in the U.S. Department of the Treasury. Both of these hotels are owned by a third party, staffed by employees of the third-party owner and operated pursuant to a management agreement between the owner and a Hilton affiliate. In each case, these payments originated from the third-party owner’s account to the personal accounts of the employees at their chosen bank. During the reporting period, both hotels discontinued making direct deposits to accounts at Bank Melli. No revenues or net profits are associated with these transactions.

Also as previously disclosed, during the reporting period, several individuals stayed at the DoubleTree Kuala Lumpur, Malaysia, pursuant to a rate agreement between the hotel and Mahan Air, an entity identified on the SDN List. The rate agreement was terminated as of May 2, 2013. This hotel is staffed by employees of the third-party owner and operated pursuant to a management agreement between the owner and a Hilton affiliate. Under the rate agreement, which was entered into in the name of the owner, the hotel reserved a number of rooms for Mahan Air crew members at the DoubleTree Kuala Lumpur several times each week. Revenue and net profit received by Hilton attributable to Mahan Air crew hotel stays during the reporting period was approximately $430.”

Travelport Limited, which may be considered our affiliate, included the disclosure reproduced below in its Form 10-Q for the fiscal quarter ended June 30, 2013. We have not independently verified or participated in the preparation of this disclosure.

“As part of our global business in the travel industry, we provide certain passenger travel related GDS and airline IT Solutions services to Iran Air. We also provide certain airline IT Solutions services to Iran Air Tours. All of these services are either exempt from applicable sanctions prohibitions pursuant to a statutory exemption in the International Emergency Economic Powers Act permitting transactions ordinarily incident to travel or, to the extent not otherwise exempt, specifically licensed by the U.S. Office of Foreign Assets Control (“OFAC”). Subject to any changes in the exempt/licensed status of such activities, we intend to continue these business activities, which are directly related to and promote the arrangement of travel for individuals.


Prior to and during the reporting period, we also provided airline IT Solutions services to Syrian Arab Airlines. These services were generally understood to be permissible under the same statutory travel exemption. The services were terminated following the May 2013 action by OFAC to designate this airline as a Specially Designated Global Terrorist pursuant to the Global Terrorism Sanctions Regulations.

The gross revenue and net profit attributable to these activities in the quarter ended June 30, 2013 were approximately $248,000 and $176,000, respectively.”

Blackstone included the following disclosure in its Form 10-Q for the fiscal quarter ended September 30, 2013 :

Travelport Limited, which may be considered our affiliate, included the disclosure reproduced below in its Form 10-Q for the fiscal quarter ended September 30, 2013. We have not independently verified or participated in the preparation of this disclosure.

“As part of our global business in the travel industry, we provide certain passenger travel related GDS and Airline IT Solutions services to Iran Air. We also provide certain Airline IT Solutions services to Iran Air Tours. All of these services are either exempt from applicable sanctions prohibitions pursuant to a statutory exemption in the International Emergency Economic Powers Act permitting transactions ordinarily incident to travel or, to the extent not otherwise exempt, specifically licensed by the U.S. Office of Foreign Assets Control (“OFAC”). Subject to any changes in the exempt/licensed status of such activities, we intend to continue these business activities, which are directly related to and promote the arrangement of travel for individuals.

The gross revenue and net profit attributable to these activities in the quarter ended September 30, 2013 were approximately $164,000 and $122,000, respectively.”

Blackstone included the following disclosure in its Form 10-K for the fiscal year ended December 31, 2013:

Travelport Limited, which may be considered our affiliate, provided the disclosure reproduced below. We have not independently verified or participated in the preparation of this disclosure.

“As part of our global business in the travel industry, we provide certain passenger travel-related GDS and airline IT services to Iran Air. We also provide certain airline IT services to Iran Air Tours. All of these services are either exempt from applicable sanctions prohibitions pursuant to a statutory exemption permitting transactions ordinarily incident to travel or, to the extent not otherwise exempt, specifically licensed by the U.S. Office of Foreign Assets Control. Subject to any changes in the exempt/licensed status of such activities, we intend to continue these business activities, which are directly related to and promote the arrangement of travel for individuals.”

Travelport has not provided us with gross revenues and net profits attributable to the activities described above.